This action, pursuant to 5 U.S.C. 553, proposes the termination of regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This proposed rule is issued under Marketing Order No. 929, as amended (7 CFR part 929), regulating the handling of cranberries grown in the States of Massachusetts, Rhode Island, Connecticut, New Jersey, Wisconsin, Michigan, Minnesota, Oregon, Washington, and Long Island in the State of New York. Part 929 referred to as the “Order” is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Cranberry Marketing Committee (Committee) locally administers the Order and is comprised of producers operating within the production area and a public member.

This proposed rule is also issued under section 8d of the Act (7 U.S.C. 608d(3)), which authorizes the collection of cranberry and cranberry product information from producer-handlers, second handlers, processors, brokers, and importers including those not subject to regulation under the Order.

The United States Department of Agriculture (USDA) is issuing this proposed rule in conformance with Executive Orders 12866, 13563, and 14094. Executive Orders 12866, and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 14094 reaffirms, supplements, and updates Executive Order 12866 and further directs agencies to solicit and consider input from a wide range of affected and interested parties through a variety of means. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review.

In addition, this proposed rule has been reviewed under Executive Order 13175—Consultation and Coordination with Indian Tribal governments, which requires agencies to consider whether their rulemaking actions would have Tribal implications. Agricultural Marketing Service (AMS) has determined this proposed rule is unlikely to 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.

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. This proposed rule is not intended to have retroactive effect.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to a marketing order may file with the USDA a petition stating that the marketing order, any provision of the marketing order, or any obligation imposed in connection with the marketing order is not in accordance with law and request a modification of the marketing order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

The Order has been in effect since 1962 and regulates the handling of cranberries grown in the States of Massachusetts, Rhode Island, Connecticut, New Jersey, Wisconsin, Michigan, Minnesota, Oregon, Washington, and Long Island in the State of New York. The Order provides the cranberry industry with authority for production research, marketing promotion and development, to include paid advertising, as well as authority for volume regulation through producer allotments or handler withholding. The Order also authorizes reporting and recordkeeping functions required for operation of the program. The Committee, which locally administers the Order, is funded by assessments imposed on handlers.

This rule proposes termination of the Order and the rules and regulations thereunder. This action is based on the results of a continuance referendum in which producers failed to support continuation of the Order. USDA believes termination of this program would be appropriate as the Order is no longer favored by industry producers.

Section 929.69 of the Order states USDA shall conduct a referendum during the month of May 1975 and every fourth year thereafter to ascertain whether continuance is favored by producers. Under this section, USDA shall terminate the Order if termination is favored by a majority of the growers, and that this majority has, during the current fiscal year, produced more than 50 percent of the cranberries produced in the production area. As required by the Order, USDA held a continuance referendum among cranberry producers from June 9 through June 30, 2023, to determine if they favored continuation of the program.

USDA mailed ballots to 944 producers in the production area. Those producers cast 366 valid ballots. The results indicate 73.5 percent of cranberry growers, who produced 79.9 percent of the production volume, voted in the referendum and favored termination of the program. Consequently, the vote met the Order's criteria for termination, demonstrating a lack of the producer support needed to carry out the objectives of the Act.

Section 608c(16)(A) of the Act provides that USDA shall terminate or suspend the operation of any order whenever the order or any provision thereof obstructs or does not tend to effectuate the declared policy of the Act. Based on the foregoing, and pursuant to section 608c(16)(A) of the Act and § 929.69 of the Order, USDA is considering termination of the Order. If USDA decides to terminate the Order, trustees would be appointed to conclude and liquidate the affairs of the Committee and would continue in that capacity until discharged by USDA. In addition, USDA would notify Congress of USDA's intent to terminate the Order not later than 60 days before the Order is terminated pursuant to section 608c(16)(A) of the Act.

A notice announcing the results of the referendum was issued on August 16, 2023. On October 25, 2023, USDA suspended collection of assessments and all reporting requirements under the Order while the proposed termination of the program is being processed. All other provisions, including promotion and research, would remain in effect until the Order is terminated.

Section 608d(3) of the Act authorizes the collection of cranberry and cranberry product information from producer-handlers, second handlers, processors, brokers, and importers. This data collection is codified in 7 CFR part 926, Data Collection, Reporting and Recordkeeping Requirements Applicable to Cranberries Not Subject to the Cranberry Marketing Order, establishing reporting requirements for cranberry and cranberry products not subject to the Order and how they were to be reported to the Committee. Section 926.21 states this part shall be suspended or terminated whenever there is no longer a Federal cranberry marketing order in effect. This proposal would also terminate part 926 which has been suspended since December 28, 2006.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), USDA has considered the economic impact of this proposed rule on small entities. Accordingly, USDA has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 950 cranberry growers in the regulated area and approximately 45 cranberry handlers subject to regulation under the Order. Small agricultural producers are defined by the Small Business Administration (SBA) as those having annual receipts of less than $3,750,000, (North American Industry Classification System (NAICS) code 111334) and small agricultural service firms are defined as those whose annual receipts are less than $34,000,000 (NAICS code 115114) (13 CFR 121.201).

According to the National Agricultural Statistics Service (NASS), the average grower price for U.S. cranberries during the 2022-23 season was $36.60 per barrel and utilized production was 8,010,070 barrels. The value for cranberries that year totaled $293,168,562, ($36.60 per barrel multiplied by 8,010,070 barrels). Taking the total value of production for cranberries and dividing it by the total number of cranberry growers provides an average return per grower of $308,598. Using the average price and utilization information, and assuming a normal distribution, the majority of cranberry growers receive less than $3,750,000 annually.

According to USDA's Market News retail averages report, the price per pound of fresh cranberries on average was $1.64 in December of 2022. On average, NASS reports that grower prices for fresh cranberries are almost double (199 percent) grower prices for processed cranberries. Dividing the average fresh retail price as reported by Market News ($1.64) by 1.99 calculates to an estimated average retail processed price of $0.82 per pound. There are 100 pounds of cranberries per barrel so the average retail price for a barrel of cranberries would be $82. Multiplying the average retail price by total utilization of 8 million barrels results in an estimated cranberry retail value of $656 million. Dividing this figure by the number of handlers (45) yields an estimated average annual handler receipts of $14.6 million, which is below the SBA threshold for small agricultural service firms. Therefore, the majority of producers and handlers of cranberries may be classified as small entities.

This rule proposes to terminate the Order, and the rules and regulations issued thereunder. Termination would remove the Order from the Code of Federal Regulations. Section 929.69 of the Order provides that USDA shall conduct a referendum during the month of May 1975 and every fourth year thereafter to ascertain whether continuance is favored by producers. The section states USDA shall terminate the Order if termination is favored by a majority of the growers, and if that majority has, during the current fiscal year, produced more than 50 percent of the cranberries produced in the production area. The results of a continuance referendum held from June 9 through June 30, 2023, indicate 73.5 percent of cranberry growers, who produced 79.9 percent of the production volume, voted in the referendum and favored termination of the program. Consequently, the vote met the Order's criteria for termination, indicating continuance of the program is no longer favored by industry producers. Consequently, USDA is considering termination of the Order. This proposed rule would also terminate part 926, the suspended data collection requirements for cranberries not covered under the Order.

Marketing orders provide industries with tools to assist producers and handlers in addressing challenges facing the industry. These tools include establishing minimum grade, size, quality, and maturity requirements, setting size, capacity, weight, dimensions or pack of the containers, collecting and publishing market information useful to producers and handlers, conducting research and promotions, and establishing volume control requirements. Each marketing order is different, with the industries deciding the authorities needed and the scope of their marketing order. Marketing orders are approved by producers through referenda and regulate handlers to ensure compliance with all requirements. The authority of a marketing order allows each industry to create a local administrative committee that is made up of growers and/or handlers that work collectively to solve industry problems.

The Order has been in effect since 1962 and provides the cranberry industry with authority for production research, marketing promotion and development, to include paid advertising, as well as authority for volume regulation through producer allotments or handler withholding. The Order also authorizes reporting and recordkeeping functions required for operation of the program. The Committee, which locally administers the Order, is funded by assessments imposed on handlers. As this change would terminate the Order and all the rules and regulations issued thereunder, the perceived benefits correlated with the Order would be lost. However, there would also be savings by eliminating costs associated with the Order, which include the payment of assessments and costs related to reporting and occasional volume regulation.

A review of the referendum results shows that producers failed to reach the necessary threshold for the vote to pass by either vote or by volume as specified in the Order, indicating that voting producers believe the benefits of the program no longer outweigh the costs to handlers and producers. Although marketing order requirements are applied to handlers, the costs of such requirements are often passed on to producers. Termination of the Order, and the resulting regulatory relaxation, could therefore be expected to reduce costs for both producers and handlers.

An alternative to this action would be to maintain the Order and its current provisions. However, the Order requires that a continuance referendum be conducted every fourth year to determine industry support for the program. The results of a recently held producer continuance referendum on the cranberry program indicated a lack of producer support, indicating that the Order no longer meets the needs of producers and handlers. Therefore, this alternative was rejected, and USDA is considering terminating the Order and removing the suspended data collection requirements in part 926.

This proposed rule is intended to solicit input and other available information from interested parties on whether the Order should be terminated. USDA will evaluate all available information prior to making a final determination on this matter.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the Order's information collection requirements have been previously approved by OMB and assigned OMB No. 0581-0189 Fruit Crops. Termination of the Order, and the reporting requirements prescribed therein, would reduce the reporting burden by 1,265 hours. Handlers would no longer be required to file forms with the Committee, which is expected to reduce industry expenses. This rulemaking would not impose any additional reporting or recordkeeping requirements on either large or small cranberry handlers.

This rulemaking would effectuate the removal of reporting and recordkeeping requirements on cranberry handlers, both small and large. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. In addition, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this proposed rule.

USDA is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

The producer referendum was well publicized in the production area, and referendum ballots were provided to all known producers. As such, producers of U.S. cranberries had an opportunity to indicate their continued support for the Order. Further, interested persons are invited to submit comments on this proposed rule, including the regulatory and information collection impacts of this proposed action on small businesses.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: https://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any questions about the compliance guide should be sent to Richard Lower at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

This rule invites comments on the proposed termination of Marketing Order No. 929, which regulates the handling of cranberries grown in the States of Massachusetts, Rhode Island, Connecticut, New Jersey, Wisconsin, Michigan, Minnesota, Oregon, Washington, and Long Island in the State of New York. A 60-day comment period is provided to allow interested persons to respond to this proposal. All written comments timely received will be considered before a final determination is made on this matter.

Based on the foregoing, and pursuant to section 608c(16)(A) of the Act and § 929.69 of the Order, USDA is considering termination of the Order. If USDA decides to terminate the Order, trustees would be appointed to conclude and liquidate the Committee affairs and would continue in that capacity until discharged by USDA. In addition, USDA would notify Congress 60 days in advance of termination pursuant to section 608c(16)(A) of the Act.

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends the route structure to maintain the efficient flow of air traffic within the National Airspace System (NAS).

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should submit only one time if comments are filed electronically, or commenters should send only one copy of written comments if comments are filed in writing.

The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The FAA may change this proposal in light of the comments it receives.

Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

An electronic copy of this document may be downloaded through the internet at www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Operations office (see ADDRESSES section for address, phone number, and hours of operations). An informal docket may also be examined during normal business hours at the office of the Eastern Service Center, Federal Aviation Administration, Room 210, 1701 Columbia Avenue, College Park, GA 30337.

Jet routes are published in paragraph 2004 and domestic VOR Federal airways are published in paragraph 6010(a) of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document proposes to amend the current version of that order, FAA Order JO 7400.11H, dated August 11, 2023, and effective September 15, 2023. These updates would be published in the next update to FAA Order JO 7400.11. That order is publicly available as listed in the ADDRESSES section of this document.

FAA Order JO 7400.11H lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This action is proposed due to the Little Rock, AR (LIT), VORTAC relocation project. The land where the Little Rock VORTAC resides is being sold which requires its relocation. The Little Rock VORTAC is be planned to be relocated in September 2024 from its current location, “lat. 34°40′39.62″ N, long. 092°10′-49.90″ W”, to approximately 8.06 nautical miles (NM) north, “lat. 34°48′36.36″ N, long. 092°09′07.44″ W”. The facility identification will remain unchanged. The magnetic variation for the current Little Rock VORTAC is 5°E and will change to 0°E after the relocation. The route modifications proposed would realign the airway structure resulting from relocating the Little Rock VORTAC.

The FAA is proposing an amendment to 14 CFR part 71 to amend J-6, J-14, J-66, J-101, J-131, J-180, V-54, V-74, V-124, V-305, V-532, and V-573, and to revoke V-534 to support the Little Rock, AR (LIT), VORTAC relocation project and Next Generation Air Transportation System (NextGen), which provides a modern United States Air Navigation (RNAV) route structure to improve the efficiency of the National Airspace System (NAS). The proposed changes are described below.

J-6: J-6 currently extends between the Salinas, CA (SNS), VORTAC and the Little Rock, AR (LIT), VORTAC, and between the Charleston, WV (HVQ), VOR/Distance Measuring Equipment (VOR/DME) and the Albany, NY (ALB), VORTAC. The FAA proposes to remove the airway segment between the Will Rogers, OK (IRW), VORTAC and the Little Rock VORTAC as this segment is not needed due to redundant navigation capability provided by jet route J-14. As amended, the airway would extend between the Salinas VORTAC and the Will Rogers VORTAC, and between the Charleston VOR/DME and the Albany VORTAC.

J-14: J-14 currently extends between the Panhandle, TX (PNH), VORTAC and the Vulcan, AL (VUZ), VORTAC. The FAA proposes to add the KOMMA, OK, Fix, and the JMUCK, MS, Fix to the part 71 description as it would be a turn of more than one degree. The JMUCK Fix is defined by the intersection of the relocated Little Rock, AR (LIT), VORTAC 105°True (T)/105°Magnetic(M) and the Vulcan VORTAC 284°T/282°M radials.

J-66: J-66 currently extends between the Newman, TX (EWM), VORTAC and the Rome, GA (RMG), VORTAC. The FAA proposes to add the MEEOW, AR, Fix to the part 71 description as it would be a turn of more than one degree.

J-101: J-101 currently extends between the Humble, TX (IAH), VORTAC and the Sault Ste Marie, MI (SSM), VOR/DME. The FAA proposes to add the CISAR, AR, Fix to the part 71 description as it would be a turn of more than one degree.

J-131: J-131 currently extends between the San Antonio, TX (SAT), VORTAC and the Pocket City, IN (PXV), VORTAC. The FAA proposes to add the RUSLR, MO, Fix to the part 71 description as it would be a turn of more than one degree.

J-180: J-180 currently extends between the Humble, TX (IAH), VORTAC and the Foristell, MO (FTZ), VORTAC. The FAA proposes to remove the airway segments between the Humble VORTAC and the Little Rock, AR (LIT), VORTAC due to the scheduled decommissioning of the Daisetta, TX (DAS), VORTAC and the Sawmill, LA (SWB), VOR/DME. Instrument Flight Rules (IFR) traffic may continue to utilize parallel jet routes J-101 and J-29. Additionally, aircraft may navigate via point-to-point navigation using the fixes that will remain in place, or request and receive air traffic control (ATC) radar vectors through and around the area. As amended, jet route J-180 would extend between the Little Rock VORTAC and the Foristell VORTAC.

V-54: V-54 consists of two parts: between the Waco, TX (ACT), VORTAC, and the Little Rock, AR (LIT), VORTAC; and between the Sandhills, NC (SDZ), VORTAC, and the Kinston, NC (ISO), VORTAC. The FAA proposes to add the MUFRE, AR, Fix and modify the description to be the Texarkana, AR (TXK), VORTAC, 052°T/045°M and the Little Rock VORTAC, 230°T/230°M radials. Additionally, the FAA proposes to add to the part 71 description that the airway excludes restricted area R-2403B when it is active. The second part of the route would remain unchanged as currently charted.

V-74: V-74 currently extends between Garden City, KS (GCK), VORTAC, and the Magnolia, MS (MHZ), VORTAC. The FAA proposes to add the OLLAS, AR, Fix to the part 71 description as it would be a turn of more than one degree.

V-124: V-124 currently extends between the Bonham, TX (BYP), VORTAC and the Gilmore, AR (GQE), VOR/DME. The FAA proposes to reconnect to the existing airway at the HILLE, AR, Fix, and add to the part 71 description that the airway excludes restricted area R-2403B when it is active. Additionally, the FAA proposes to remove the route segment between the HILLE Fix and the Gilmore VOR/DME as it is not needed for ATC services. In order to navigate through and around the Memphis area, IFR traffic may continue to utilize VOR Federal airways V-16 and V-159. Air traffic may also utilize RNAV route T-398. Visual Flight Rules (VFR) air traffic may also utilize all of the previously listed routes. Aircraft may also navigate via point-to-point navigation using the fixes that will remain in place, or request and receive ATC radar vectors through and around the area. As amended, V-124 would extend between the Bonham VORTAC and the HILLE Fix.

V-305: V-305 consists of two parts: between the El Dorado, AR (ELD), VOR/DME, and the Walnut Ridge, AR (ARG), VORTAC; and between Cunningham, KY (CNG), VOR/DME, and the Brickyard, IN (VHP), VORTAC. The FAA proposes to add the UKORE, AR, Fix to the part 71 description as it would be a turn of more than one degree, and that the airway excludes restricted area R-2403B when it is active.

V-532: V-532 currently extends between Little Rock, AR (LIT), VORTAC and the Lincoln, NE (LNK), VORTAC. The FAA proposes to remove the route segments between the Little Rock VORTAC and the Fort Smith, AR (FSM), VORTAC due to lack of use as V-74 offers a more direct path for aircraft to navigate between the Little Rock VORTAC and the Fort Smith VORTAC. Additionally, V-303 would continue to provide navigation capability between the BLURB, AR, Fix and the Fort Smith VORTAC. As amended, V-532 would extend between the Fort Smith VORTAC and the Lincoln VORTAC.

V-534: V-534 currently extends between Little Rock, AR (LIT), VORTAC and the Fort Smith, AR (FSM), VORTAC. The FAA proposes to remove the entire route due to lack of use as V-74 offers a more direct path for aircraft to navigate between Little Rock VORTAC and Fort Smith VORTAC.

V-573: V-573 currently extends between Will Rogers, OK (IRW), VORTAC and the Little Rock, AR (LIT), VORTAC. The FAA proposes to remove the route segment between Hot Springs, AR (HOT), VOR/DME and Little Rock VORTAC due to V-124 providing redundant navigation capability. As amended, V-573 would extend between Will Rogers VORTAC and the Hot Springs VOR/DME.

The full descriptions of the above routes are listed in the proposed regulatory text of this NPRM.

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

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

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

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would modify the route structure as necessary to preserve the safe and efficient flow of air traffic within the National Airspace System (NAS).

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should submit only one time if comments are filed electronically, or commenters should send only one copy of written comments if comments are filed in writing.

The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The FAA may change this proposal in light of the comments it receives.

Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

An electronic copy of this document may be downloaded through the internet at www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see ADDRESSES section for address, phone number, and hours of operations). An informal docket may also be examined during normal business hours at the office of the Operations Support Group, Western Service Center, Federal Aviation Administration, 2200 South 216th St., Des Moines, WA 98198.

Colored Federal airways are published in paragraph 6009 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document proposes to amend the current version of that order, FAA Order JO 7400.11H, dated August 11, 2023, and effective September 15, 2023. These updates would be published in the next update to FAA Order JO 7400.11. That order is publicly available as listed in the ADDRESSES section of this document.

FAA Order JO 7400.11H lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

In 2003, Congress enacted the Vision 100-Century of Aviation Reauthorization Act (Pub L., 108-176), which established a joint planning and development office in the FAA to manage the work related to the Next Generation Air Transportation System (NextGen). Today, NextGen is an ongoing FAA-led modernization of the nation's air transportation system to make flying safer, more efficient, and more predictable.

In support of NextGen, this proposal is part of an ongoing, large, and comprehensive T-route modernization project in the state of Alaska. The project mission statement states: “To modernize Alaska's Air Traffic Service route structure using satellite-based navigation development of new T-routes and optimization of existing T-routes will enhance safety, increase efficiency and access, and will provide en route continuity that is not subject to the restrictions associated with ground-based airway navigation.” As part of this project, the FAA evaluated the existing Colored Airway structure for: (a) direct replacement ( i.e., overlay) with a T-route that offers a similar or lower Minimum En route Altitude (MEA) or Global Navigation Satellite System (GNSS) Minimum En route Altitude (MEA); (b) the replacement of the colored airway with a T-route in an optimized but similar geographic area, while retaining similar or lower MEA; or (c) removal with no route structure (T-route) restored in that area because the value was determined to be insignificant.

The aviation industry/users have indicated a desire for the FAA to transition the Alaskan en route navigation structure away from dependency on NDBs and move to develop and improve the United States Area Navigation (RNAV) route structure.

Colored Federal airway B-28 extends between the Prince Rupert, BC, Canada, NDB and the Sitka, AK, NDB, excluding the airspace within Canada. The decommissioning of the Sitka and Nichols NDBs would render B-28 unusable. The FAA proposes to revoke B-28 in its entirety. The loss of B-28 is mitigated by existing Very High Frequency Omnidirectional Range (VOR) federal airways V-309 and V-311, which overlie B-28.

The FAA is proposing an amendment to 14 CFR part 71 to revoke Colored Federal airway B-28 in Alaska due to the pending decommissioning of its supporting Navigational Aids (NAVAID).

Colored Federal airway B-28 extends between the Prince Rupert, BC, Canada, NDB and the Sitka, AK, NDB, excluding the airspace within Canada. The FAA proposes to revoke Colored Federal airway B-28 in its entirety.

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

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

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

List of Abbreviations and Acronyms Frequently Used in This Document BASA—Bilateral Aviation Safety Agreement ICAO—International Civil Aviation Organization Table of Contents I. Overview of Proposed Rule II. Authority for This Rulemaking III. Background A. History B. Legislative and Rulemaking Actions 1. FAA Modernization and Reform Act of 2012 2. Advance Notice of Proposed Rulemaking and Comment Response 3. FAA Extension, Safety, and Security Act of 2016 IV. Discussion of the Proposal A. Application of 14 CFR Part 120 and 49 CFR Parts 40 Through 145 Certificated Repair Stations Located Outside the Territory of the United States (§§ 120.1, 120.123, and 120.227) B. Conforming Amendments To Facilitate Drug and Alcohol Procedures Outside the United States (§§ 120.123 and 120.227) C. Exemptions and Waivers to Drug and Alcohol Program Requirements (§§ 120.5 and 120.9) D. Impact on International Agreements V. Regulatory Notices and Analyses A. Regulatory Evaluation B. Regulatory Flexibility Determination C. International Trade Impact Assessment D. Unfunded Mandates Assessment E. Paperwork Reduction Act F. International Compatibility G. Environmental Analysis VI. Executive Order Determinations A. Executive Order 13132, Federalism B. Executive Order 13211, Regulations That Significantly Affect Energy Supply, Distribution, or Use C. Executive Order 13609, Promoting International Regulatory Cooperation VII. Additional Information A. Comments Invited B. Confidential Business Information C. Electronic Access and Filing I. Overview of Proposed Rule

This proposed rule, which the FAA is required by statute to promulgate, would implement a statutory mandate to require certificated part 145 repair stations located outside the territory of the United States (U.S.) to ensure that employees who perform safety-sensitive maintenance functions on part 121 air carrier aircraft are subject to a drug and alcohol testing program, consistent with the applicable laws of the country in which the repair station is located. This proposed rule would require a part 145 repair station located outside the territory of the U.S. to implement a drug and alcohol testing program meeting the requirements of 49 CFR part 40 and 14 CFR part 120, which must cover its employees who perform maintenance functions on part 121 air carrier aircraft. If a part 145 repair station cannot meet one or all requirements in 49 CFR part 40 ( e.g., the laws of the country where the repair station is located are inconsistent with the regulations), the part 145 repair station may apply for an exemption using the process described in 49 CFR 40.7. Similarly, if a part 145 repair station cannot meet one or all requirements in 14 CFR part 120, it may apply for a waiver in accordance with proposed waiver authority. This rulemaking would affect approximately 977 part 145 repair stations in about 65 foreign countries. 1

It is the responsibility of the employer ( e.g., the part 121 operator) to ensure that any person who performs safety-sensitive functions ( e.g., maintenance or preventive maintenance), directly or by contract (including by subcontract at any tier), is subject to drug and alcohol testing. The FAA notes that part 145 repair stations located within the territory of the U.S. may elect to, but are not required to, implement a drug and alcohol testing program under 14 CFR part 120. When hiring by contract, if a part 145 domestic repair station does not have a testing program of its own, the part 121 operator must cover the repair station's safety-sensitive employees under its FAA drug and alcohol testing program. 2 In this scenario, for purposes of drug and alcohol testing, the part 121 operator hires the repair station employees as covered employees  3 and must apply all the regulatory requirements of the program to these employees ( e.g., conduct a pre-employment drug test, the records check, the training and educational information distribution requirements, and include the individuals in the random testing pool). Therefore, all employees performing a safety-sensitive function within the U.S. are part of a drug and alcohol testing program, whether it is the part 121 operator's program or the repair station's program. As further discussed in this preamble, the FAA does not propose any changes to its current drug and alcohol testing requirements applicable to employees performing a safety-sensitive function within the U.S. as part of this rulemaking. In addition, the FAA invites comments, with supporting data, on whether the drug and alcohol testing requirements in this proposed rule should be extended to safety sensitive maintenance employees of part 121 certificate holders located outside the United States.

The FAA's authority to issue rules on aviation safety is in title 49 of the United States Code (49 U.S.C.). Subtitle I, section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. The FAA's authority to issue rules on alcohol and drug testing is in 49 U.S.C. 45102, which directs the Administrator to prescribe regulations that establish a program requiring air carriers and foreign air carriers to conduct certain alcohol and controlled substances testing.

This proposed rule is further promulgated under section 308 of the FAA Modernization and Reform Act of 2012 (the Act), 49 U.S.C. 44733. Specifically, 49 U.S.C. 44733(d)(2), titled “Alcohol and Controlled Substances Testing Program Requirements,” requires the FAA to “promulgate a proposed rule requiring that all part 145 repair station employees responsible for safety-sensitive maintenance functions on part 121 air carrier aircraft [be] subject to an alcohol and controlled substances testing program determined acceptable by the [FAA] Administrator and consistent with the applicable laws of the country in which the repair station is located.” Additionally, this proposed rule is promulgated under section 2112 of the FAA Extension, Safety, and Security Act of 2016, (the 2016 Act), which directed publication of a notice of proposed rulemaking in accordance with 49 U.S.C. 44733. The 2016 Act also requires that the notice of proposed rulemaking be finalized.

The FAA and the Office of the Secretary of Transportation (OST) have long engaged in a regulatory partnership regarding drug and alcohol testing of persons in the aviation industry. The OST first published its drug testing procedure regulations in 1988 to require antidrug programs for certain transportation industries, including aviation. 4 In that interim final rule, the OST adopted a modification of Department of Health and Human Services (HHS) guidance in new 49 CFR part 40 to require employers to conduct drug testing in accordance with the HHS's Mandatory Guidelines for Federal Workplace Programs.

Simultaneously, the FAA published a final rule setting forth regulations to certain entities to implement an anti-drug program for employees who perform sensitive safety or security related functions. 5 These entities included: domestic and supplemental air carriers, commercial operators of large aircraft, air taxi and commuter operators, certain commercial operators, certain contractors to these operators, and air traffic control facilities not operated by the FAA or the U.S. military. Before this final rule, the FAA's regulatory action pertaining to drug and alcohol use primarily focused not on testing programs, but on restrictions on commercial aviation personnel ( e.g., regulations restricting crewmembers such as pilots, flight attendants, flight engineers, and flight navigators from acting as a crewmember within eight hours after drinking an alcoholic beverage, regulations restricting use of any drug that affects faculties contrary to safety  6 ). The final rule required employers to comply with the OST's newly adopted 49 CFR part 40, Procedures for Transportation Workplace Drug Testing Programs ( i.e., comply with the modified HHS guidance). However, rather than following the OST structure, which created a new part to promulgate the regulations, the FAA adopted a new appendix within 14 CFR part 121 and required compliance through various cross-references in 14 CFR parts 61, 63, 65, and 135.

The 1988 FAA final rule applied only to domestic U.S. operators but did not expressly exclude employees located outside the territory of the U.S. from testing. In that final rule, the FAA considered the impact that the regulations would have on foreign laws and policy. Specific to foreign repair stations, individuals at foreign repair stations under contract to U.S. certificate holders would not be able to perform maintenance or preventive maintenance work on U.S.-registered aircraft unless they participated in an anti-drug program. However, as set forth by then-part 121, appendix I, section XII, the rule would not be applicable in any situation where compliance would violate the domestic laws or policies of another country. Additionally, the section provided a longer effectivity date to aid the Department of Transportation (DOT) and foreign governments in reaching permanent resolutions to any identified conflict between the final rule and foreign law.

The effectivity date for the final rule with respect to employees located outside the territory of the U.S. was extended several times, 7 during which time Congress passed the Omnibus Transportation Employee Testing Act of 1991 (OTETA). 8 Section 3 of OTETA added sec. 614 to title VI of the Federal Aviation Act of 1958, which directed the Administrator to prescribe regulations to establish a program that requires both air carriers and foreign air carriers to conduct alcohol and controlled substance testing for certain persons. OTETA specified that the FAA should only establish requirements applicable to foreign air carriers consistent with the international obligations of the U.S. and take any laws and regulations of the foreign countries into account.

Again, the OST and the FAA issued congruent final rules  9 to implement the legislation, as applicable. Consistent with the legislation, the FAA final rule mandated that no employee located solely outside the territory of the U.S. shall be tested for illegal use of drugs under appendix I of part 121. An employer was required to remove such employees from the random testing pool while the employee solely performed functions in a foreign country, or while under contract outside the territory of the U.S. Concurrently, the FAA proposed and adopted appendix J within part 121 to supplement the existing regulations concerning alcohol misuse to ensure coordination between OST and FAA. The FAA had originally proposed  10 that the alcohol testing rule would apply to direct employees of U.S. air carriers who performed safety-sensitive functions outside the U.S., subject to the laws and regulations of the country in which the testing would occur; however, in response to comments, the FAA ultimately decided not to require alcohol testing of any employees located outside the territory of the U.S., mirroring the drug testing requirements. 11

These drug and alcohol testing regulations remained static for almost two decades, despite occasional proposed rulemaking that did not come to fruition. 12 These regulations were scattered throughout 14 CFR. 13 Most recently, in 2009, the FAA concluded that it would be best to streamline and clarify title 14 to pull the regulations existing at that time into one location. Therefore, FAA adopted new part 120  14 to set forth a better organizational structure for the drug and alcohol testing program regulations, which is where it is situated today. The FAA has engaged in additional rulemaking since that time to harmonize 14 CFR part 120 with OST's amendments to 49 CFR part 40, as warranted ( e.g., aligning prohibited drugs in 14 CFR part 120 with those in 49 CFR part 40  15 ).

In 2012, Congress passed the FAA Modernization and Reform Act of 2012. 16 Section 308(d)(2) of the Act, implemented in 49 U.S.C. 44733, requires that the FAA Administrator publish a proposed rule requiring that all part 145 repair station employees responsible for safety-sensitive maintenance functions on part 121 air carrier aircraft outside the U.S. to be subject to an alcohol and controlled substances testing program determined acceptable by the Administrator and consistent with the applicable laws of the country in which the repair station is located. The FAA considers all maintenance functions performed on part 121 air carrier aircraft to be safety-sensitive under 14 CFR 120.105 and 120.215.

Pursuant to its authorities in section 7 of the Rivers and Harbors Act of 1917 (40 Stat. 266; 33 U.S.C. 1) and chapter XIX of the Army Appropriations Act of 1919 (40 Stat. 892; 33 U.S.C. 3), the Corps is proposing to amend the danger zone regulations at 33 CFR 334.1380 to change the hours that weapons firing may occur at the Ulupau Crater Weapons Training Range, Marine Corps Base Hawaii (MCBH), Kaneohe Bay, Island of Oahu, Hawaii.

The danger zone represents a public safety buffer beyond the physical boundaries of the training range to further reduce the safety threat to the boating public. The geographical nature of the crater combined with the use of man-made measures makes the crater secure from unintended projectiles exiting its confines, although a very slight possibility exists that a projectile could ricochet or otherwise be inadvertently fired beyond the confines of the crater. Under current conditions, sensitive wildlife areas, including designated protected areas, are encompassed within the existing boundaries of the danger zone. Since munitions are not intentionally fired into waters surrounding Ulupau Crater and the probability of an unintended projectile exiting the crater is negligible, an extension in the time that weapons may be fired will not incrementally change, modify or otherwise adversely impact sensitive marine species and organisms that inhabit or are supported by the waters and protected areas occurring within the danger zone. Marine resources, including endangered species, migratory shorebirds, and other seabirds that occupy designated protected areas will remain adequately protected by the MCBH under obligations of pre-existing agreements. For similar reasons, submerged lands will not be directly or indirectly adversely affected by the expanded danger zone.

The current regulations state that weapons firing at the Ulupau Crater Weapons Training Range may occur at any time between 6 a.m. and 11 p.m., Monday through Sunday. In the proposed rule, the time period for weapons firing is extended three hours so that weapons may be fired at any time between 6 a.m. and 2 a.m., Monday through Sunday.

a. Regulatory Planning and Review. This proposed rule is not a “significant regulatory action” under Executive Order 12866 (58 FR 51735, October 4, 1993) and Executive Order 13563 (76 FR 3821, January 21, 2011) and it was not submitted to the Office of Management and Budget for review.

b. Review under the Regulatory Flexibility Act. This proposed rule has been reviewed under the Regulatory Flexibility Act (Pub. L. 96-354). The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice-and-comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities ( i.e., small businesses and small governments). The danger zone is necessary to protect public safety during use of the weapons firing range. The danger zone regulation allows any vessel that needs to transit the danger zone to expeditiously transit through the danger zone whenever weapons firing is scheduled. The proposed amendment to this regulation would only change the hours when the danger zone is activated; it would not change the geographic extent of the existing danger zone. When the range is not in use, the danger zone will be open to normal maritime traffic and to all activities, include anchoring and loitering. When the danger zone is activated, small entities can utilize navigable waters outside of the danger zone. Unless information is obtained to the contrary during the comment period, the Corps certifies that the proposed rule would have no significant economic impact on the public.

c. Review under the National Environmental Policy Act. Due to the administrative nature of this action and because there is no intended change in the use of the area, the Corps expects that this regulation, if adopted, will not have a significant impact on the quality of the human environment and, therefore, preparation of an environmental impact statement will not be required. An environmental assessment will be prepared after the public notice period is closed and all comments received have been considered.

d. Unfunded Mandates Act. This proposed rule does not contain a Federal mandate that may result in expenditures of $100 million or more for state, local, and tribal governments, in the aggregate, or the private sector in any one year. Therefore, this proposed rule is not subject to the requirements of sections 202 and 205 of the Unfunded Mandates Reform Act (UMRA). The proposed rule contains no regulatory requirements that might significantly or uniquely affect small governments. Therefore, the proposed rule is not subject to the requirements of section 203 of UMRA.

e. Congressional Review Act. The Congressional Review Act, 5 U.S.C. 801 et seq., generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The Corps will submit a report containing the final rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States. A major rule cannot take effect until 60 days after it is published in the Federal Register . This proposed rule is not a “major rule” as defined by 5 U.S.C. 804(2).

For the reasons stated in the preamble, the Corps proposes to amend 33 CFR part 334 as follows:

This is a synopsis of the Commission's Addressing the Homework Gap through the E-Rate Program, Notice of Proposed Rulemaking ( NPRM ) in WC Docket No. 21-31; FCC 23-91, adopted November 1, 2023 and released November 8, 2023. The full text of this document is available for public inspection during regular business hours at Commission's headquarters 45 L Street NE, Washington, DC 20554 or at the following internet address: https://www.fcc.gov/document/fcc-proposes-e-rate-support-wi-fi-hotspots.

1. High-speed internet is critical to educational equity, economic opportunity, job creation, and civic engagement. Since its inception, the Federal Communications Commission's (Commission) E-Rate program has supported high-speed, affordable internet services to and within school and library buildings, and has been instrumental in providing students and library patrons with access to the essential broadband services that are required for next-generation learning. But advances in technology have changed the modern learning environment to increasingly employ interactive online education tools that can be used anywhere, at any time, allowing students to develop the digital skills needed to prosper in the 21st Century. The ongoing proliferation of innovative digital learning technologies and the need to connect students, teachers, and library patrons to jobs, life-long learning, and information have led to a steady rise in the demand for broadband connectivity both inside and outside of school and library buildings. In response to those needs, the Commission proposes and seeks comment on updates to the E-Rate program to ensure the program is equipped to support the ongoing remote learning needs of today's students, school staff, and library patrons.

2. In recent years, the demand for connectivity beyond school and library buildings became a crisis when the COVID-19 pandemic disrupted operations and caused schools and libraries across the country to temporarily close their doors. Millions of students caught in the “Homework Gap”— i.e., students unable to fully participate in educational opportunities because they lack broadband connectivity in their homes—suddenly found themselves unable to participate in education at all. Library patrons who relied on their local libraries for remote learning opportunities and internet access suddenly experienced a loss of these critical services when most, if not all, library buildings closed their doors by the summer of 2020. However, even before the COVID-19 pandemic, the Homework Gap affected somewhere between 8.5 to 16 million K-12 students, leaving 15% of U.S. households with children ages six to seventeen lacking a high-speed internet connection at home and approximately one in four households without high-speed internet access. Although the E-Rate program helped approximately 98% of the K-12 schools and districts in the country meet the Commission's connectivity goals by 2018 by providing support for broadband connections to and within schools, and approximately 12,000 distinct libraries from across the nation receive E-Rate support each year for broadband connections to and within libraries, the increasing shift to online and remote instruction highlighted the need to connect the millions of students, school staff, and library patrons who had no at-home broadband connectivity. To address this longstanding critical need, Congress created the Emergency Connectivity Fund (ECF), which allowed the Commission to create the nation's first ever federal program designed to address the Homework Gap by providing funding for connected devices, Wi-Fi hotspot devices, broadband connections, and other eligible equipment and services for students, school staff, and library patrons in need for use at locations outside of their school or library.

3. Over the past two years, the ECF program's funding of internet access services through Wi-Fi hotspots has enabled significant progress in expanding digital learning, addressing digital and educational equity, and closing the Homework Gap by providing students, school staff, and library patrons with access to broadband connections. Schools in Oakland, California reported that they nearly closed the Homework Gap for their students through the use of ECF-funded Wi-Fi hotspots and internet access services. Libraries, like the Boston Public Library, established ECF-funded Wi-Fi hotspot lending programs to provide the hotspot equipment and monthly mobile broadband services needed to connect thousands of their most vulnerable residents to library resources. These are just two examples of the many ways that schools and libraries across the nation have relied on ECF support to fulfill the remote learning needs of their students, school staff, and library patrons who otherwise lacked access to these resources.

4. Following three successful application filing windows and more than two years of funding broadband services for students, school staff, and library patrons with unmet needs, ECF funding is nearly fully obligated, and the program will sunset on June 30, 2024. As the Commission approaches the sunsetting of the ECF program, the Commission has committed more than $123 million for the purchase of Wi-Fi hotspot devices and nearly $1.3 billion for the associated services to provide off-premises broadband connectivity to students, school staff, and library patrons who otherwise would lack sufficient broadband access needed to fully engage in remote learning. Building on its experience with the ECF program, the Commission now reexamines the E-Rate program and seeks comment on proposals and potential actions the Commission could take to support the needs of students, school staff, and library patrons who risk losing access to essential broadband connections necessary to engage in educational opportunities once the ECF program sunsets.

5. In the NPRM, the Commission initiates a proceeding to address the ongoing remote learning needs of today's students, school staff, and library patrons through the E-Rate program and to ensure the millions who have benefitted from ECF program support do not fall back onto the wrong side of the digital divide once the program ends. Specifically, the Commission proposes to permit eligible schools and libraries to receive E-Rate support for Wi-Fi hotspots and wireless internet services that can be used off-premises. The Commission proposes to find that the off-premises use of Wi-Fi hotspots and internet services by students, school staff, and library patrons for remote learning and the provision of virtual library services constitutes an educational purpose as defined by the Commission and enhances access to advanced telecommunications and information services for schools and libraries. The Commission also seeks comment on how to adapt the E-Rate program to reflect the virtual nature of today's modern educational environment. Additionally, the Commission seeks comment on the applicability of the Children`s internet Protection Act (CIPA) requirements and the off-premises use of E-Rate-supported hotspots and services. In considering whether to support the off-premises use of Wi-Fi hotspots and internet access services, the NPRM seeks to balance the need to modernize the E-Rate program to support today's technology-based learning environment with the need to ensure the limited E-Rate funding remains available for its primary purpose of providing connectivity to schools and libraries, and is protected from potential waste, fraud, and abuse.

6. The Commission proposes to modernize the E-Rate program in recognition of the technologically advanced educational needs of students, school staff, and library patrons that persist even when they are not physically at their school or library, by making the off-premises use of Wi-Fi hotspots and services eligible for E-Rate support. Broadband access is proven to improve individuals' educational outcomes, while lack of access has been shown to severely hamper educational opportunities. Yet, for years, the adoption of broadband connectivity in today's educational settings has outpaced the adoption of broadband connectivity in the homes of students, school staff, and library patrons throughout the country. As a result, students, school staff, and library patrons who lack adequate access to broadband connectivity are left further and further behind. Over the course of the last two years, the ECF program has bridged some of the gap between individuals with home broadband access and individuals caught on the wrong side of the digital and educational divide. Schools and libraries have maximized their limited ECF funding by establishing Wi-Fi hotspot lending programs, and ensuring that as many students, school staff, and library patrons in need as possible had access to broadband connectivity outside of the school or library building. With ECF support, approximately 6,800 schools, libraries, and consortia of schools and libraries purchased Wi-Fi hotspot devices and associated services, and were able to provide much-needed mobile broadband connectivity through ECF-funded Wi-Fi hotspots to more than 1.1 million students, school staff, and library patrons who otherwise lacked internet access services sufficient to engage in remote learning. In the NPRM, the Commission seeks to continue supporting ECF-funded broadband connectivity and proposes to allow E-Rate support to fund the off-premises use of Wi-Fi hotspots and services to ensure that the students, school staff, and library patrons who lack broadband connectivity remain supported after the ECF program sunsets. The Commission also seeks comment on how the it can implement funding for the off-premises use of Wi-Fi hotspots and services within existing E-Rate program processes, what actions are necessary to safeguard these critical funds from any potential waste, fraud, or abuse, and its authority to adopt the measures described in the NPRM.

7. The Commission proposes to permit schools and libraries to receive E-Rate support for Wi-Fi hotspots and services that can be used off-premises by students, school staff, and library patrons, finding that these services serve a critical educational purpose and enhance the ability of students, school staff, and library patrons to access advanced telecommunications and information services. The Commission seeks comment on this proposal and, if adopted, how best to implement the proposed measures in a manner that ensures that schools and libraries target their students, school staff, and library patrons who lack internet access, while simultaneously protecting limited E-Rate funds. In particular, the Commission seeks information and data from schools and libraries that have used Wi-Fi hotspots and services for remote learning and/or implemented Wi-Fi hotspot lending programs to provide service to students, school staff, and library patrons who would otherwise lack broadband access outside of their school or library.

8. In proposing to make Wi-Fi hotspot devices eligible for E-Rate support, the Commission seeks comment on what devices should be covered. In the ECF program, a Wi-Fi hotspot is defined as a device that is capable of (a) receiving advanced telecommunications and information services; and (b) sharing such services with a connected device through the use of Wi-Fi. For the E-Rate program, the Commission proposes to limit eligibility to Wi-Fi hotspots receiving mobile services and seek comment on whether this is the right approach. Are there any devices that perform the same functions as a Wi-Fi hotspot that are not covered by this definition and that should be included? Conversely, is the ECF program's definition of Wi-Fi hotspot overinclusive and could it encompass devices that go beyond the intended purpose of meeting the remote learning needs of students, school staff, and library patrons with unmet need? The Commission encourages commenters to provide specific examples of any equivalent or similar equipment and/or services, or equipment and/or services that should be considered ineligible. Should Wi-Fi hotspots be treated as internal connections, as the State of Colorado has argued? The Commission notes that in defining the scope of E-Rate program eligibility for internal connections, the Commission has previously declined to support “computers and other peripheral equipment” because it found that only equipment that is an essential element in the transmission of information is eligible ( e.g., internal connections). The Commission seeks comment on whether Wi-Fi hotspot devices are “peripheral equipment” or if they serve the necessary transmission function contemplated by the Commission to be considered internal connections, like wireless access points.

9. Consistent with the ECF program, the Commission also proposes to limit Wi-Fi hotspot device eligibility to Wi-Fi hotspots for individual users. The Commission proposes to treat as ineligible multi-user hotspot devices or smartphones. The Commission seeks comment on this proposal. Additionally, the ECF rules limited support to the purchase of one Wi-Fi hotspot device per student, school staff member, or library patron. Should the Commission similarly adopt a per-user limitation in the E-Rate program or consider a per-household limit? What should that limit be? Is an individual Wi-Fi hotspot capable of connecting more than one user at a time without degrading the quality of the connectivity or compromising connectivity altogether? In considering whether to impose some limit, the Commission seeks to balance the goals of administrative ease, such as implementing a simple one-per-household limit, with the needs of all households, including multi-student households. Some sources state that Wi-Fi hotspot devices have a useful life of three to five years. In commenters' experience, is this the typical length of the useful life of Wi-Fi hotspots? If the Commission funds Wi-Fi hotspots, should the Commission limit their eligibility to purchases made once every three years or adopt some other eligibility timeframe? The Commission seeks comment on these questions and request that commenters provide any available supporting data.

10. With respect to wireless internet access services, the Commission proposes to limit the use of services to those that can be supported by and delivered with Wi-Fi hotspots provided to an individual user (as opposed to multi-user hotspots). Pursuant to this proposal, schools and libraries would be able to seek E-Rate support for commercially available internet access services ( e.g., a data plan) that will be used on any individual user Wi-Fi hotspot, including E-Rate- or ECF-funded hotspots, previously purchased hotspots, and/or student-, staff member-, or patron-owned hotspots. The Commission seeks comment on this proposal. The Commission also seeks comment on the quality of internet access services that should be eligible for support through the E-Rate program. For example, should the Commission adopt minimum service standards? The Commission invites input on the level of service that is needed to support remote learning, based on the direct experiences of providing Wi-Fi hotspots to students, school staff, and library patrons during the pandemic. Should the Commission limit support to just the off-premises use of the recurring internet access services needed for remote learning (and not the Wi-Fi hotspot equipment)? The Commission expects this limitation could allow schools and libraries with existing Wi-Fi hotspot lending programs to continue to lend or check-out a portable Wi-Fi hotspot device with a mobile broadband connection to students, school staff, or library patrons for off-premises access to the internet. If the Commission decides not to make Wi-Fi hotspot devices eligible, how should the Commission address Wi-Fi hotspot devices that are bundled with services? Are there benefits or disadvantages if the Commission limits E-Rate support to only services, and does not include Wi-Fi hotspot devices as eligible for support? Should the Commission limit eligibility to the services associated with the Wi-Fi hotspots purchased using ECF program funds? Would this limitation help to ensure E-Rate support is directed to students, school staff, and library patrons who are expected to lose their connectivity when the ECF program sunsets? Are there other issues or concerns the Commission should consider when determining how to fund Wi-Fi hotspot devices and/or services? For example, how should leased or bundled equipment and service packages offered by providers be treated and should they be eligible for E-Rate support? The Commission seeks comment on these questions.

11. Next, the Commission seeks comment on how to ensure schools and libraries purchase the most cost-effective service offering(s) when selecting Wi-Fi hotspots and services for students, school staff, and library patrons who lack access to broadband. Are the requirements to pay the non-discounted share of costs and conduct competitive bidding sufficient incentives to prevent wasteful spending? The Commission also seeks comment on the anticipated costs of the Wi-Fi hotspots and services if provided on a program-wide basis. The Commission encourages schools, libraries, and other stakeholders to provide in their comments specific information about the devices and services purchased through the ECF program or with other funding, the costs, the device and service parameters, any steps they have taken to ensure the sufficiency of the service, and any steps they have taken to lower costs associated with Wi-Fi hotspots and service. The anticipated costs should consider and describe any secondary components, such as additional hotspot features, different bandwidth capabilities, and any reasonable fees incurred with the purchase of Wi-Fi hotspots and services.

12. The Commission next ask about cost-control mechanisms. Should the Commission adopt a cap on the amount of costs that will be considered cost-effective for Wi-Fi hotspots and/or monthly services, and if so, should the Commission rely on ECF program data to establish a cap for a Wi-Fi hotspot provided to an individual user? For services, the Affordable Connectivity Program (ACP) provides discounts of up to $30 per month towards internet service (or up to $75 per month for eligible households on qualifying Tribal lands). Are these reasonable caps on what the Commission might consider cost-effective for monthly service? Should the Commission use different amounts for the monthly reimbursement of these services in the E-Rate program, and if so, what amounts should be used? If the Commission adopts caps on the amounts considered cost-effective for monthly services, should those caps be regularly updated, and if so, what mechanism should the Commission use to make those updates? What requirements should the Commission implement to ensure service providers in these underserved areas provide the most cost-effective services to eligible schools and libraries if a higher amount is allowed for support? The Commission seeks comment on these questions.

13. Relatedly, under the Commission's E-Rate rules, applicants are required to conduct fair and open competitive bidding when requesting funding for eligible services. The competitive bidding requirements are a cornerstone of the E-Rate program and are critical to ensuring that applicants obtain the most cost-effective offering available. However, the Commission recognizes that there may be challenges associated with conducting competitive bidding for off-premises wireless services that can be used from multiple locations. How can the Commission ensure applicants conduct fair and open competitive bidding for off-premises wireless services while also ensuring students, school staff, and library patrons can access those services from locations other than their school or library? For instance, in geographically large districts, a single service provider may not be able to provide service throughout the school's or library's service area. Should the Commission allow applicants to select multiple service providers for Wi-Fi hotspots and services based on the geographic area(s) of their students, school staff, and library patrons? How can the Commission ensure that applicants select the most cost-effective service offerings? Are there competitively-bid state or other master contracts available for schools and libraries to purchase Wi-Fi hotspot devices and services for off-premises use? Are there any other issues that schools and libraries may encounter during their competitive bidding processes for Wi-Fi hotspots and services to be used off-premises that the Commission should also consider?

14. Based on its experience funding Wi-Fi hotspots and services through the ECF program, the Commission tentatively finds that taking this step toward addressing the educational needs of millions of students, school staff, and library patrons caught in the digital and educational divide is also technically feasible and economically reasonable, consistent with section 254(h)(2)(A) of the Communications Act. The Commission estimates that approximately 4.5 million students, school staff, and library patrons received mobile broadband service and/or hotspots through the ECF program for the 2021-2022 school year, with an average cost of approximately $294 per user per year. The Commission seeks comment on this estimate, and any data and numerical evidence that can be used to support or update its estimate. Given that the demand for E-Rate program funding has consistently fallen below the program's funding cap in recent years, the Commission believes the cost of funding Wi-Fi hotspots and services for off-premises use could be accomplished within the E-Rate program's existing budget, and the potential increase in program disbursements would result in a substantial benefit to students, school staff, and library patrons stuck on the wrong side of the digital and educational divide, and in the Homework Gap across the country. The Commission seeks comment on its tentative conclusion.

15. Commenters are also invited to address whether the number of students, school staff, and library patrons that received mobile broadband service through Wi-Fi hotspots in the ECF program provides an accurate basis for estimating demand if the Commission permits mobile broadband service and Wi-Fi hotspots for off-premises use to be funded with E-Rate support, particularly given that not all E-Rate participants applied for the ECF program, and other federal or state funding may have also been used for this purpose during the pandemic. The Commission requests additional information on whether there are schools and libraries that did not apply for ECF support that would apply for E-Rate support for the off-premises use of Wi-Fi hotspots and services. In addition, the Commission seeks comment on whether the ECF program's $294 estimated average cost per user provides an accurate basis for estimating the potential cost to the E-Rate program of supporting Wi-Fi hotspots and mobile broadband service for off-premises use, provided the Commission reduces that amount by the average discounted share that will be paid by schools and libraries. Is this estimated cost too high, given the ECF program was an emergency program and there were not program-specific competitive bidding rules, unlike for the E-Rate program, which requires competitive bidding and for applicants to select the most cost-effective service offering using prices of the eligible services as the primary factor? How should the Commission account for the average three-year lifespan of Wi-Fi hotspot devices and the fact that many users will be able to continue to use devices funded through ECF after the sunset of the program, as well as funded through the other state and federal programs? For example, how can the Commission prevent parties from replacing ECF-funded Wi-Fi hotpots with new Wi-Fi hotpots funded through the E-Rate program before the ECF-funded equipment reaches its end-of-life (EOL)? Could the FCC manage the potential costs to the E-Rate program by establishing limits on the amount of support dedicated to the off-premises use of Wi-Fi hotspots and services? The Commission seeks comment on these questions.

16. The Commission acknowledges that there are some circumstances where Wi-Fi hotspots and services may not meet the connectivity needs of all students, school staff, and library patrons caught in the Homework Gap. The Commission also acknowledges that some schools and libraries used ECF funding for other remote learning solutions, such as building their own fixed wireless networks, and may also seek to use E-Rate funding to continue providing connectivity to their students, school staff, or patrons after the ECF program sunsets. While the Commission recognizes that there may be other off-premises uses that may meet the definition of an educational purpose, these solutions also have the potential to be extremely costly to fund with the very limited E-Rate support and could be duplicative of funding made available through other state and federal programs. The Commission seeks comment on these conclusions. The Commission believes that taking this initial, incremental step to fund Wi-Fi hotspots and services for off-premises use strikes the right balance and is consistent with its universal service goals. The Commission also believes its proposal can be accomplished without excessive cost to the E-Rate program or significant administrative delay. The Commission therefore proposes to limit the scope of the NPRM to the off-premises use of Wi-Fi hotspots and services because the Commission is mindful of its obligation to be a prudent, responsible steward of the limited E-Rate funding and its statutory directive to establish rules only to the extent it is “economically reasonable” to do so. The Commission invite comment on this proposal. Recognizing that there may be circumstances where there is either no commercially available mobile service or the existing service is insufficient to allow students, school staff, or library patrons to fully engage in remote learning, the Commission seeks comment on whether the Commission should consider alternatives for off-premises services funded through the E-Rate program in such limited circumstances and what alternatives should be considered. For example, should the Commission permit schools and libraries to use existing E-Rate-funded networks to connect students, school staff, or library patrons off-premises in the narrow instances where commercially available mobile broadband is not a viable option ( e.g., due to geographic challenges or cost)? The Commission also seeks comment on how the Commission should determine there is no commercially available service, or existing service is insufficient to support remote learning and how to ensure the alternative solutions are the most cost-effective way of providing service to students, school staff, and library patrons who otherwise are not able to fully engage in remote learning.

17. If the Commission makes students', school staff members', and library patrons' off-premises use of Wi-Fi hotspots devices and services eligible, what category of service should these devices and services be? Under the current Eligible Services List, wireless internet services are category one services and are eligible under limited circumstances. Should the Commission therefore considers Wi-Fi hotspots to be network equipment necessary to make category one wireless internet services functional? If the Commission determines that Wi-Fi hotspots are comparable to internal connections as the State of Colorado suggests, should these devices be considered category two services?

18. Based on the Commission's experience in the ECF program and other publicly available information, the Commission anticipates that its proposal to fund the off-premises use of Wi-Fi hotspots and services will result in an increase in E-Rate funding requests. In the event that E-Rate program demand exceeds its annual funding cap, the Commission seeks comment on how requests for the off-premises use of Wi-Fi hotspots and services should be prioritized. Are there measures the Commission should consider to ensure that E-Rate funding remains available for the currently-eligible category one and category two services that are needed by schools and libraries? Should these requests be prioritized after services and equipment needed to bring connectivity to and within schools and libraries ( i.e., category one and category two services) are funded? Should the Commission prioritize requests for services associated with the Wi-Fi hotspots purchased using ECF program funds? Will funding the off-premises use of Wi-Fi hotspot devices and services have any impact on other pending E-Rate-related eligibility requests, such as expanding basic firewall services to include advanced or next-generation firewall services? Are there other ways to limit the financial impact of supporting the off-premises use of Wi-Fi hotspots and services? For example, should the Commission consider an overall budget for these new off-premises services? Should there be an annual funding cap for the amount of support that is available for the off-premises use of Wi-Fi hotspots and services? If so, what should the funding cap be? Should it be indexed to inflation? Alternatively, would a per-student limit, like the one used for category two funding budgets, help to ensure the limited E-Rate program support is distributed equitably to schools and libraries across the various discount rates? Should the Commission implement these changes on an interim basis and subsequently assess whether to implement a permanent rule change based on its interim experience? The Commission seeks comment on these proposals and questions.

19. The Commission also recognizes that there are insufficient E-Rate funds to support Wi-Fi hotspots and services for every student, school staff member, and library patron across the nation. Therefore, how can the Commission prioritize support for students, school staff, and library patrons who do not have internet access at home? In the ECF program, the Commission limited support to students, school staff, and library patrons without internet access services sufficient to engage in remote learning. Through its experience in the ECF program, the Commission understands that schools and libraries have faced challenges in determining which parts of their population needed access to Wi-Fi hotspots and services for the upcoming funding year. The Commission therefore seeks comment on administratively feasible ways to ensure the E-Rate program prioritizes support for Wi-Fi hotspots and services for use by students, school staff, or patrons who would otherwise lack access to internet access services.

20. The ECF program limited support for eligible equipment and services to students, school staff, or library patrons with unmet need, and, because it was an emergency COVID-19 relief program, schools and libraries were required to provide only their best estimate of unmet need during the application stage. However, because the E-Rate program is not an emergency program, there is time for schools and libraries to determine the actual number of students, school staff, and library patrons with unmet needs. The Commission seeks comment on whether the Commission should adopt more stringent unmet needs requirements for the E-Rate program than it adopted for the ECF program. For example, should the Commission require schools and libraries to conduct and submit as part of their funding requests a survey or other documentation that substantiates their student and school staff, or patron population who has current unmet needs? Would such a requirement raise any privacy concerns ( e.g., insofar as such surveys would be intended to elicit information from potentially lower-income children, families, and individuals)? If this requirement would create privacy risks for students, families, and patrons, how could the Commission mitigate those risks ( e.g., via data minimization, anonymization, or deidentification)? For example, would it be possible for schools and libraries to conduct such surveys without collecting any personally identifiable information (PII) from students, staff, or patrons, and what burdens would such a collection place on school and library resources? If schools and libraries would need to collect PII, should the Commission requires that all such information be removed from the survey results when submitted with funding requests?

21. Are there other ways that the Commission can ensure it focuses and targets the limited E-Rate program support to only students, school staff, and library patrons who currently lack broadband access—and who cannot afford it—so that the E-Rate program does not support services for students, school staff, or library patrons who already have broadband connectivity at their homes? For example, should the Commission restricts the support of off-premises use of Wi-Fi hotspots and services to students whose parent or guardian certifies that they lack broadband at home and who are eligible for the free or reduced-price lunch program (also known as the National School Lunch Program or NSLP)? Are there any other school nutrition programs that a student's parent or guardian should be able to use to demonstrate eligibility under this approach, such as the School Breakfast Program? What burdens could conditioning support on NSLP participation impose on school administrators and/or students? If the Commission declines to use NSLP for determining eligibility, what other measures could be taken to ensure the limited E-Rate support is directed to the students with the greatest need? For school staff and library patrons, are there similar or alternative requirements that the Commission should consider to ensure that E-Rate support is used towards existing unmet needs and to prevent waste, fraud, and abuse of the program? The Commission seeks comment on these questions and how to best target E-Rate funding to only students, school staff, and library patrons with the greatest need.

22. The Commission further seeks comment on whether there are certain school populations, such as Head Start and pre-kindergarten students, for whom the risks may outweigh the benefits of providing E-Rate support for the off-premises use of Wi-Fi hotspots and services. For example, studies show that children under the age of 5 should limit internet access to one hour or less per day and are harmed if exposed to longer periods of use. The Commission proposes that the Head Start program, which provides early learning and development for pre-school children from the ages of 3 to 5, and pre-kindergarten students should be determined to be ineligible to receive E-Rate support for off-premises use of Wi-Fi hotspots and services. The Commission notes that Head Start and/or pre-kindergarten education facilities serving this particular age group may be eligible for E-Rate funding for broadband connectivity to and within their facilities, if determined to be elementary schools under their applicable state laws. Further, parents and guardians of Head Start students may be eligible for home internet access services through ACP because Head Start is an income-based program and, to qualify, a family must be at or below the federal poverty level, or participate in a federal government assistance program. The Commission seeks comment on this proposal and other measures the Commission should take to ensure that the E-Rate program's limited support is targeted to students, school staff, and library patrons with the greatest need, as there is insufficient funding to support the off-premises use of Wi-Fi hotspots and services for every student, school staff member, and library patron.

23. The Commission is mindful of its obligation to protect the Universal Service Fund (USF) and the USF programs from waste, fraud, and abuse, and take seriously its duty to be a careful steward of E-Rate program funds. The Commission is similarly committed to ensuring the integrity of the E-Rate program and identify below potential tools at its disposal to ensure that the E-Rate program's funds are used for its intended purposes, i.e., to enhance and enable access to broadband services for educational opportunities for schools and libraries nationwide. The Commission seeks comment on what safeguards the Commission should consider imposing to protect the constrained E-Rate funds from waste, fraud, and abuse, and to prevent the imposition of unnecessary costs on the program.

24. The Commission first seeks comment on how to ensure that the off-premises use of Wi-Fi hotspots and services is primarily for educational purposes, consistent with the Commission's rules and section 254(h)(1)(B) of the Communications Act. The COVID-19 pandemic demonstrated the educational benefits of providing critical broadband connections to students, school staff, and library patrons and highlighted their reliance on interactive and collaborative remote learning outside the physical school or library building. The Commission recognizes that the use of eligible services on school or library property typically occurs under the supervision of school or library staff; whereas, the off-premises use of these services presents new concerns about ensuring the proper use of the E-Rate-funded equipment and services that are not directly supervised by the recipient of the funding. In balancing these benefits and concerns, the Commission therefore seeks comment on what safeguards should be imposed to mitigate the risk of off-premises non-educational use of E-Rate-supported Wi-Fi hotspots and services.

25. Currently, E-Rate participants are required to certify on program forms that supported services will be used primarily for educational purposes. The Commission seeks comment on whether requiring schools and libraries to certify on their forms that E-Rate support is being used primarily for educational purposes is sufficient to protect against improper use or if additional guardrails should be imposed to ensure that services are used “primarily for educational purposes.” For example, libraries that used ECF funding to connect their patrons through Wi-Fi hotspot lending programs are required to provide patrons with a copy of their eligible use policy and collect signed statements from patrons confirming that they would otherwise lack access to the equipment or services necessary to meet their educational needs. Should the Commission adopt a similar requirement in the E-Rate program and require schools and libraries to provide copies of their eligible use policies and collect signed documentation of user compliance from patrons, school staff members, or parents/guardians of students to ensure the E-Rate-funded Wi-Fi hotspots and services are used solely by the intended recipient and serve an educational purpose? How can the Commission ensure that the off-premises Wi-Fi hotspots and services are being used as intended by the individual student, school staff member, or library patron for educational purposes, and E-Rate funding is not being used to provide broadband connectivity for the whole family, for which there are more appropriate funding sources available, like the ACP? Should the Commission require schools and libraries, as a condition of receiving E-Rate support for off-premises use, to include certain minimum requirements in their eligible use policies, or limit the duration of time a student, school staff member, or library patron can use the hotspot at home? Should, for example, schools and libraries be required to restrict access to the off-premises use of Wi-Fi hotspots and services to students, school staff, and patrons with appropriate credentials? What would constitute appropriate credentials? Should there be an annual verification process to establish continuing need and eligible use for students and school staff before the start of each school year? Should the documentation signed by users include a notice of potential consequences if a Wi-Fi hotspot is used improperly, including the return of the device and revocation of the associated service? Are there other actions that the Commission could take to help ensure the appropriate use of the E-Rate-funded Wi-Fi hotspots and services? The Commission seeks comment on these questions.

26. If the Commission extends support to the off-premises use of Wi-Fi hotspots and services, the Commission expects the support would be subject to the audits and reviews currently utilized in the E-Rate program ( e.g., Beneficiary and Contributor Audit Program (BCAP) audits, Payment Quality Assurance (PQA) audits, and Payment Integrity Assurance (PIA) reviews and Selective Reviews (SR) of the FCC Form 471). Are the current E-Rate audit and application/invoice review mechanisms sufficient to ensure that off-premises Wi-Fi hotspots and services are actively being used by eligible users primarily for educational purposes? Should the Commission increase the number and frequency of random or targeted audits in the first few years of support as a means of detecting and preventing improper payments for Wi-Fi hotspots and services that are not needed, are not being used, are being used to provide home broadband connectivity to an entire family, or are not being used primarily for an educational purpose? Are there other issues, such as privacy concerns, or changes the Commission should consider for audits and reviews related to funding requests and disbursements for off-premises use of Wi-Fi hotspots and services? For example, because it is presumed to serve an educational purpose when the services are used on school or library property, how should the Commission verify that the off-premises use of E-Rate-funded Wi-Fi hotspots and services are being used for educational purposes? Are there mechanisms or tools available that would allow for verifying compliance with E-Rate rules regarding the off-premises use of supported Wi-Fi hotspots and services that would not require review of users' online activities, browsing history, etc.? If not, should users receive advance notice that their use of an E-Rate-supported Wi-Fi hotspot and service is subject to audit, which may include review of their online activities and browsing history to verify compliance with the Commission's rules? The Commission seeks comment on these questions.

27. The Commission also seeks comment on what other requirements should be imposed to ensure schools and libraries are not requesting funding for more Wi-Fi hotspots and services than are necessary to meet the needs of only students, school staff, and library patrons who lack access to broadband and are used for educational purposes. For instance, schools and libraries may allow the community to use E-Rate-funded services from on-premises locations during non-operating hours, subject to certain conditions to ensure students always have the first priority to use the supported services and to protect against the waste, fraud, and abuse of the funds. Are there similar conditions that the Commission should impose on the off-premises use of Wi-Fi hotspots and services to ensure applicants are not requesting excess services for non-educational purposes like video games or non-educational streaming services, and that students, school staff, and library patrons are receiving first priority in the use of school or library resources? Are there incidental uses that should be permissible, like telehealth appointments or filling out government forms, that would not result in a greater demand on E-Rate funding? The Commission seeks comment on these questions and invite input on what steps schools and libraries have taken to ensure the off-premises use of ECF-funded Wi-Fi hotspots and services were used only by the intended individual(s) and for educational purposes.

28. If the Commission makes off-premises use of Wi-Fi hotspots and services eligible, how can the Commission prevent the warehousing of Wi-Fi hotspots and reimbursement for unused equipment and/or services? Are there ways to prevent the purchase of “back-up” Wi-Fi hotspots, e.g., hotspots purchased in anticipation of loss, breakage, or additional unmet need? Should the Commission adopt numerical criteria to assess usage: e.g., should usage below a weekly, monthly, or quarterly threshold of X hours be treated as “non-usage”? Should the Commission require participants to provide evidence of usage and/or strengthen the certification requirements surrounding non-usage? For example, should the Commission require the submission of data usage reports ( i.e., reports on the amount of data used, not the substance of the usage) with requests for reimbursement to demonstrate the Wi-Fi hotspots and services were used by students, school staff, and library patrons as intended for the time period being invoiced to the E-Rate program? Should there be different usage requirements applicable to schools and libraries? How does the Commission avoid having the E-Rate program pay for service to Wi-Fi hotspots during the summer, when students may not be using the devices? For example, should E-Rate support for schools be limited to only nine months per school year to prevent the E-Rate program from covering the costs of unused devices and/or services during the summer? Should the certifications regarding non-usage in the ECF program be strengthened for the E-Rate program? How should the certifications be strengthened, and how could a school, library, or service provider demonstrate compliance with the certification requirements? The Commission seeks comment on these questions.

29. The Commission also seeks comment on how schools, libraries, and service providers should address non-usage issues. If the monthly usage report indicates that certain hotspot devices are not being used by the student, school staff member, or library patron, should the school or library be required to terminate the service to that device? Should the service provider be responsible for notifying the school or library which devices had no usage on a monthly basis and be required to terminate the service? Should there be a cure or notification period to allow the student, school staff member, or library patron to restart use of the services or should the services be terminated after there is a month of no usage? The Commission seeks comment on what requirements should be implemented to ensure usage of the devices and services and what actions the school, library, or service provider should be required to take to address any non-usage issues related to their students, school staff, or library patrons.

30. The Commission also seeks comment on how the Administrator should handle non-usage issues related to off-premises Wi-Fi hotspots and services. If a school or library cannot demonstrate the Wi-Fi hotspots and services were used by the intended individual, should their request for reimbursement be denied, and the Administrator be directed to reduce the committed funding amount by the same amount to prevent this funding from being disbursed in the future? Should schools and libraries be required to notify the Administrator if their service provider submits invoices for Wi-Fi hotspots or services that the school or library knows are not being used by its students, school staff, or library patrons, because, for example, the device has not been distributed yet? Should the Administrator be directed to seek recovery from a service provider that invoices the program for Wi-Fi hotspots and services that were not in use during the reimbursement period? Should the Commission also prohibit service providers from invoicing applicants for periods of non-usage? If there is evidence of non-usage of the off-premises Wi-Fi hotspots and/or services, should schools and libraries be required to file an FCC Form 500, or other post-commitment request, to reflect the actual periods of time that the Wi-Fi hotspots and services were in use by their students, school staff, or library patrons? Should E-Rate participants that improperly received E-Rate support for unused Wi-Fi hotspots and/or services not be eligible to request E-Rate support for off-premises Wi-Fi hotspots and services in future funding years? Or should the school or library be required to reduce their funding requests by the amount of funding related to the unused Wi-Fi hotspots and services in future funding years? The Commission seeks comment on these questions and ways to ensure the off-premises Wi-Fi hotspots and services are actually being used for their intended purpose of providing broadband connectivity to students, school staff, and library patrons who lack access and are used for educational purposes.

31. The Commission seeks comment on what safeguards are necessary to prevent duplicative funding for the same off-premises Wi-Fi hotspots and/or services across the federal universal service programs and other funding programs, including federal, state, Tribal, or local programs. For example, the ACP provides discounts to help low-income households pay for the home broadband service and connected devices needed for critical activities like work and school. However, a household may justifiably receive support from multiple universal service programs at the same time: for instance, a household may receive a Lifeline-supported discount on mobile broadband and voice service for a cellular phone that a parent takes with them to work, while separately receiving support for a Wi-Fi hotspot to help a child in that same household complete their homework on a school-issued laptop. How can the Commission ensure that funding sought for internet access services through the E-Rate program will not be duplicative of funding received through other programs, like the ACP, for home internet access, while recognizing that a household may permissibly benefit from multiple federal universal service programs simultaneously? If schools and libraries already provide off-premises access for their students, school staff, and patrons through ECF or other sources of funding, should those schools and libraries be prohibited from using E-Rate support for that same purpose? For example, how does the Commission ensure that schools and libraries that have purchased Wi-Fi hotspots with ECF support do not purchase new hotspots with E-Rate support prior to the end of the useful life of the ECF-funded hotspots? To help us assess this issue, the Commission asks commenters to identify any ECF support or other sources of funding currently being used by schools or libraries to subsidize off-premises access for students, school staff, and library patrons that would eliminate or reduce the need for E-Rate-supported Wi-Fi hotspots. Would a certification by the school or library be sufficient to indicate that E-Rate support is only being sought for eligible students, school staff, or library patrons and the school or library does not already have access to Wi-Fi hotspots purchased with ECF support or other sources of funding? The Commission seeks comment on how to prevent duplicative funding between E-Rate, ECF, and other funding programs, including federal, state, Tribal, or local programs.

32. The Commission's rules currently requires schools and libraries to retain all documentation related to the application, receipt, and delivery of eligible services received through the E-Rate program for at least ten years after the last date of the delivery of services. The Commission proposes to apply existing E-Rate recordkeeping requirements to funding provided for the off-premises use of Wi-Fi hotspots and services. The Commission seeks comment on this proposal and whether additional recordkeeping requirements should be imposed for these purposes. For example, while both the E-Rate and ECF rules require applicants to maintain inventories of equipment purchased with the programs' support, ECF rules require applicants to maintain specific information in their equipment and service inventories for each device or service purchased with ECF support and provided to an individual student, school staff member, or library patron. For each hotspot purchased with ECF support, a school or library must maintain the device make/model, the device serial number, the name of the person to whom the device was provided, and the dates the device was loaned out and returned to the school or library. Each ECF-funded service inventory must include the type of service provided, the broadband plan details ( i.e., upload and download speeds and the monthly data cap), and the name of the person to whom the service was provided. Should the Commission adopts these inventory requirements in the E-Rate program for the off-premises use of Wi-Fi hotspots and services? For Wi-Fi hotspot lending programs, should the Commission consider library-specific inventory rules?

33. The Commission seeks comment on any other issues related to maintaining documentation to demonstrate compliance with E-Rate rules and certifications. Related to the Commission's unmet need inquiries, should applicants be required to maintain records of students', school staff members', or library patrons' unmet needs, and if so, what types of records should be required ( e.g., surveys)? If the Commission requires schools and libraries to retain new records regarding unmet needs containing PII, how can the Commission address any privacy risks to students, families, school staff, and patrons? Related to its non-usage requirements inquiries, the Commission notes that service providers would be required to retain and produce monthly usage reports for off-premises Wi-Fi hotspots and services funded through the E-Rate program under its current rules. Should applicants be required to request and retain monthly usage reports from their service providers as well? Are there other recordkeeping requirements for the off-premises use of Wi-Fi hotspots and services that should be considered by the Commission?

34. Several stakeholders have argued that the Commission should, and has the authority to, clarify that the E-Rate program may support off-premises solutions like Wi-Fi hotspots for extending connectivity to students', school staff members', and patrons' homes. For example, the Schools, Health & Libraries Broadband (SHLB) Coalition argued that section 254(h)(1)(B) of the Communications Act does not prohibit the provision of E-Rate support for off-premises services; rather, it simply requires a demonstration by E-Rate participants that the off-premises use of eligible equipment and services primarily serves an educational purpose. Additionally, Apple posited that the Commission should determine that equipment and services that support remote learning, like Wi-Fi hotspots, are eligible for E-Rate support because they “enhance . . . access to advanced telecommunications and information services” for schools and libraries under section 254(h)(2)(A) of the Communications Act. The Commission tentatively concludes, consistent with the recent Wi-Fi on School Buses Declaratory Ruling and the Commission's past determinations regarding the off-campus use of certain E-Rate services, that the Commission has authority under section 254 of the Communications Act to permit eligible schools and libraries to receive E-Rate support for Wi-Fi hotspots and wireless internet services that may be used off-premises. The Commission seeks comment on its tentative conclusion and the scope of the Commission's relevant legal authority, including the applicability of CIPA requirements.

35. First, the Commission tentatively concludes that such Wi-Fi hotspot and wireless internet services that may be used off-premises and are targeted for use by students and educators constitute services that are “provide[d] . . . to elementary schools, secondary schools, and libraries,” and thus may be supported pursuant to section 254(h)(1)(B) of the Communications Act when used “for educational purposes.” The Commission seeks comment on this tentative conclusion, including that the reference to “elementary schools, secondary schools, and libraries” does not constrain us from supporting off-premises use of such services for educational purposes. The Commission also seeks comment on whether and under what circumstances the off-premises use of wireless services, and the Wi-Fi hotspots needed to deliver such services, by students, school staff, and library patrons at locations other than at a school or library constitutes an educational purpose under section 254(h)(1)(B) of the Communications Act. Taking into consideration the lack of a reliable broadband connection at some students', school staff members', and library patrons' homes, and the increasing need for connectivity in today's technology-based educational environment that extends learning beyond a school or library building ( e.g., for virtual classes, electronic research projects, homework assignments, virtual library resources, and job or government assistance applications), as well as its experience connecting students, school staff, and library patrons using ECF-funded Wi-Fi hotspots and services, the Commission specifically proposes that the off-premises use of mobile wireless services and the Wi-Fi hotspots needed to deliver such connectivity is integral, immediate, and proximate to the education of students, or in the case of libraries, integral, immediate, and proximate to the provision of library services. The Commission seeks comment on this proposal and invite commenters to provide specific examples of how Wi-Fi hotspots and services used off-premises serve an educational purpose. As discussed in greater detail above, the Commission also seeks comment on the necessary safeguards to ensure that this off-premises use is primarily for educational purposes, consistent with its rules and section 254(h)(1)(B) of the Communications Act.

36. Next, the Commission seeks comment on whether supporting Wi-Fi hotspots and services is consistent with the Commission's precedent permitting certain off-premises uses of other E-Rate-funded services. Although prior off-premises uses permitted by the Commission were limited to telecommunications services, the Commission has expressly rejected the assertion that the support provided under section 254(h) of the Communications Act is limited to telecommunications services. Specifically, in the First Universal Service Order, 62 FR 32862, June 17, 1997, the Commission concluded that section 254(h)(1)(B) through section 254(c)(3) of the Communications Act authorizes universal service support for telecommunications services and additional services such as information services. Furthermore, in the Wi-Fi on School Buses Declaratory Ruling, the Commission concluded that the provision of support for Wi-Fi on school buses fit squarely within its authority under section 254(h)(1)(B) to designate “ `services that are within the definition of universal service under subsection (c)(3),' which itself authorizes the Commission to designate non-telecommunications services for support under E-Rate.” To the extent section 254(h)(1)(B) of the Communications Act encompasses additional services, such as information services, does the Commission have a basis to authorize support under that subsection for wireless Internet access services needed for the off-premises use of Wi-Fi hotspots?

37. The Commission also seeks comment on how the Commission should reconcile the authority provided under section 254(h)(1)(B) of the Communications Act to support certain “services” with the fact that Wi-Fi hotspots are physical devices needed to provide those services. In the First Universal Service Order, for example, the Commission specifically concluded that “it can include `the information services' e.g., protocol conversion and information storage, that are needed to access the Internet, as well as internal connections, as `additional services' that section 254(h)(1)(B), through section 254(c)(3), authorizes us to support.” Consistent with that precedent, the Commission tentatively concludes that the Commission has authority under section 254(h)(1)(B) through section 254(c)(3) of the Communications Act to support the Wi-Fi hotspot devices that are needed for the off-premises use of the broadband services. The Commission invites comment on its tentative conclusion.

38. Further, the Commission tentatively concludes that providing E-Rate support for the off-premises use of Wi-Fi hotspots and services “enhance[s], to the extent technically feasible and economically reasonable, access to advanced telecommunications and information services for all public and nonprofit elementary and secondary school classrooms . . . and libraries” consistent with section 254(h)(2)(A) of the Communications Act. Funding the off-premises use of Wi-Fi hotspots and services will help provide the broadband connectivity necessary to support the ability of schools and libraries to facilitate remote learning for students, school staff, and library patrons who lack access when they are away from school or library premises and will allow schools and libraries to provide digital educational resources at anytime from anywhere. Therefore, the Commission believes the action proposed today will enhance schools' and libraries' access to advanced telecommunications and information services under section 254(h)(2)(A) of the Communications Act. The Commission seeks comment on this interpretation.

39. The Commission also tentatively concludes that this proposal is consistent with the Commission's exercise of its authority under section 254(h)(2)(A) of the Communications Act to establish the Connected Care Pilot Program and in its recent Declaratory Ruling clarifying that use of Wi-Fi services on school buses is an educational purpose and, therefore, can be eligible for E-Rate support. In establishing the Connected Care Pilot Program, the Commission found that providing support for patients' home broadband connections expanded health care providers' digital footprints for purposes of providing connected care services and allowed health care providers to serve more patients through the pilot program, thus enhancing eligible health care providers' access to advanced telecommunications and information services. Similarly, in the recent Wi-Fi on School Buses Declaratory Ruling, the Commission found that “the use of Wi-Fi on school buses to aid the many students who lack robust internet access at home similarly enhances eligible schools' and libraries' access to advanced telecommunications and information services.” Would funding Wi-Fi hotspots and services to provide off-premises connectivity to students, school staff, and library patrons who lack access similarly enhance eligible schools' and libraries' access to advanced telecommunications and information services? The Commission seeks comment on its tentative conclusion.

40. Off-Premises Limitations. In tentatively concluding that providing E-Rate support for off-premises use of Wi-Fi hotspots and services is consistent with section 254(h)(2)(A) of the Communications Act, the Commission also seeks comment on how today's modern educational environment has evolved for the purposes of enhancing affordable access to 21st Century broadband services capable of supporting today's digital learning. The Commission has long recognized the evolving nature of educational technology, noting in the 2010 National Broadband Plan that “[o]nline educational systems are rapidly taking learning outside the classroom, creating a potential situation where students with access to broadband at home will have an even greater advantage over those students who can only access these resources at their public schools and libraries.” Over a decade later, and in the wake of nationwide school and library shutdowns, the need for connectivity for remote learning has become only more pronounced. There is little doubt that advances in technology have enabled students to continue to learn well after the school bell rings, including from their homes or other locations like, for example, youth centers. Today's learning settings have evolved, and learning now occurs outside of the school or library building, increasing the need to have broadband connections for educational success. As such, the Commission seeks comment on its tentative conclusion that the reference in section 254(h)(2)(A) of the Communications Act to “elementary and secondary school classrooms . . . and libraries” extends to student, school staff, and library patron homes, given that today's educational environment clearly extends outside of the physical school or library building. Does the modern student, school staff member, or library patron require internet access outside of school or library premises to achieve their educational goals? Is there data showing the extent to which certain educational activities take place in both the physical on-premises classroom and other off-premises locations? What about the extent to which students are required to do homework or engage in remote learning beyond school or library premises? The Commission invites commenters to share their experiences with the increasingly virtual nature of the modern educational environment and how evolving technologies have changed education.

41. As noted, Congress did not define “classrooms” for the purposes of section 254(h)(2)(A) of the Communications Act. In the First Universal Service Order, the Commission concluded that the statutory reference to “classrooms” demonstrated that Congress intended to fund service to each individual classroom but did not define the term. More recently, the Commission determined that “in today's world, teaching and learning often occur outside of brick and mortar school buildings and thus `classroom' may be interpreted more broadly,” which may include, for example, school buses. The Commission seeks comment on whether the Commission should adopt a definition of “classrooms” for the purposes of the E-Rate program and what would be an appropriate definition to adequately cover the modern learning environment. Do homes and other off-premises locations ( i.e., community centers, after-school centers, etc.) function as “virtual classrooms” within the meaning of “classrooms” as used in section 254(h)(2)(A) of the Communications Act, particularly after the COVID-19 pandemic? Furthermore, in establishing universal service support for schools and libraries, Congress explained that the intent of the support authorized under subsection (h)(2) is to “enhance the availability of advanced telecommunications and information services to public institutional telecommunications users” and to ensure “Americans everywhere” have access “via schools and libraries.” The Commission seeks comment on whether interpreting “classroom” to mean an in-person, on-premises setting would bar any intended Americans from benefiting from supported advanced telecommunications and information services. Alternatively, would a broader interpretation of “classrooms” to include locations other than the school or library and that focuses on the intended beneficiaries' ( i.e., “Americans everywhere”) ability to access educational services, rather than the exact location of the services, be consistent with Congress's intent? Relatedly, if the Commission adopts a broader interpretation of “classrooms”, is there a definition that strikes a balance between ensuring access to educational services in this evolving learning environment while also establishing boundaries to ensure that the off-premises use of E-Rate-supported services remains the exception to the general presumption that activities that occur on library or school property serve an educational purpose? The Commission emphasizes that any determination of support for off-premises use of E-Rate-supported services will still be subject to the relevant statutory requirements discussed herein, including that the Commission first finds that the off-premises provision of such services serves an educational purpose pursuant to section 254(h)(1)(B), and enhances, to the extent technically feasible and economically reasonable, access to advanced telecommunications and information services under section 254(h)(2)(A) of the Communications Act. The Commission seeks comment on whether these limitations are sufficient to ensure that E-Rate funding is being used for its intended purposes.

42. The Children's Internet Protection Act (CIPA). The Commission seeks comment on the applicability of the Children's Internet Protection Act (CIPA) when connecting to internet made available by E-Rate-funded Wi-Fi hotspots and services. Congress enacted CIPA to protect children from exposure to harmful material while accessing the internet from a school or library. In enacting CIPA, Congress was particularly concerned with protecting children from exposure to material that was obscene, child pornography, or otherwise inappropriate for minors ( i.e., harmful content). CIPA prohibits certain schools and libraries from receiving funding under section 254(h)(1)(B) of the Communications Act for internet access, internet service, or internal connections, unless they comply with specific internet safety requirements. Specifically, CIPA applies to schools and libraries “having computers with internet access,” and requires each such school or library to certify that it is enforcing a policy of internet safety that includes the operation of a technology protection measure “with respect to any of its computers with internet access.” Schools, but not libraries, must also monitor the online activities of minors and provide education about appropriate online behavior, including warnings against cyberbullying. The Commission tentatively concludes that the requirements of CIPA would apply to school- or library-owned computers being used off-premises if the school or library receives internet service, internet access, or network connection services or related equipment (including Wi-Fi hotspots) funded through the E-Rate program, and seek comment on this conclusion.

43. In the ECF program, the Commission found that the purchase of hotspots would qualify as the purchase of network equipment for internet access, internet service, or internal connections, and would trigger CIPA compliance for the purchasing school or library only if used with any school- or library-owned computers. Similarly, other ECF-funded recurring internet access or internet services (if any) used off-premises triggers CIPA compliance if used with any school- or library-owned computer. On the other hand, the Commission determined for the ECF program that CIPA does not apply to the use of any third-party-owned device, even if that device is connecting to a school's or library's ECF-funded hotspot or other ECF-funded internet access or internet service. The Commission seeks comment on whether this is the appropriate interpretation of CIPA with regard to E-Rate-funded Wi-Fi hotspots and services used off-premises as discussed further below.

44. At the time of CIPA's enactment, schools and libraries primarily owned one or two stationary computer terminals that were used solely on-premises. Today, it is commonplace for students, school staff, and library patrons to carry internet-enabled devices onto school or library premises and for schools and libraries to allow third-party-owned devices access to their internet and broadband networks. In view of the changes in technology and the wider range of internet-enabled devices in circulation today, the Commission seeks comment on whether its current interpretation of CIPA's applicability to computers owned by schools or libraries that receive E-Rate-funded internet service, internet access, or internal connections achieves CIPA's intended purpose of protecting minors from exposure to harmful content while accessing internet services provided by a school or library. Are students or library patrons able to access content that is obscene, child pornography, or harmful to minors through E-Rate-funded internet or internal connections when they use their own ( i.e., third-party) computers or devices? What steps can the Commission take to ensure that E-Rate funding is not being used to facilitate minors' access to harmful content, including when using third-party-owned devices to connect to E-Rate-funded internet access, internet service, or internal connections? The Commission also understands that many mobile broadband service providers include network-level filtering in their service offerings and that many schools and libraries already deploy network-level technology protection measures. The Commission seeks comment on whether it can and should require or encourage filtering and other technology protection measures to be implemented at the network-level to ensure that minors are not accessing harmful content through E-Rate-funded internet access, internet service, or internal connections. The Commission invites input from commenters on their experiences implementing and using network-level protections to protect minors from accessing harmful content.

45. The Commission also invites comment on the scope of the Commission's authority to impose requirements on third-party-owned devices pursuant to CIPA. For example, the Commission seeks comment on whether the requirement in section 254(h)(5)(B)(i) of the Communications Act that requires schools to certify that their internet safety policy “includes monitoring the online activities of minors” could be construed to extend to third-party-owned devices, notwithstanding other language in CIPA that suggests that its applicability is limited to school- or library-owned computers. Should monitoring the online activities of minors requirement apply to third-party-owned devices that use or access E-Rate-funded internet access, internet service, or internal connections? Is that interpretation consistent with Congress's intent “to protect America's children from exposure to obscene material, child pornography, or other material deemed inappropriate for minors while accessing the internet from a school or library receiving Federal Universal Service assistance for provisions of internet access, internet service, or internal connection”? The Commission seeks information about current practices that would assist the Commission in formulating policies that reflect the importance of CIPA protections in the context of more modern uses of the internet services supported by E-Rate.

46. The Commission also seeks comment on how CIPA's requirements are being met remotely and whether the Commission's existing CIPA-related rules adequately cover off-premises use. What measures are ECF recipients taking to comply with CIPA when providing ECF-funded hotspots for use on school- or library-owned computers? How are libraries balancing CIPA requirements and the needs of library patrons who rely on E-Rate-funded internet access or internal connections for remote learning and other E-Rate approved uses ( e.g., job searching)? The Commission seeks comment on these questions and whether there may be other circumstances it has not considered related to the application of CIPA to the proposals in the NPRM.

47. Finally, the Commission acknowledges there are privacy concerns related to certain CIPA requirements, particularly as it relates to library patrons' data that is often subject to various federal and/or state privacy laws. The Commission seeks comment on these privacy-related issues and encourage commenters to be specific about how CIPA can be applied to ensure minors who are using E-Rate-funded Wi-Fi hotspots and services are protected from harmful online content, as intended by Congress. The Commission also seeks comment on any privacy-related implications if network-level filtering or other technology protection measures are required for third-party-owned devices that access E-Rate funded internet or internal connections.

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

49. Regulatory Flexibility Act. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in the Addressing the Homework Gap through the E-Rate Program, Notice of Proposed Rulemaking ( NPRM ). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments in the NPRM. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA).

50. The Commission's E-Rate program provides support to schools and libraries, allowing them to obtain affordable, high-speed broadband services and internal connections, which enables them to connect students and library patrons to critical next-generation learning opportunities and services. The primary objectives of the NPRM are to address the remote learning needs of today's students, school staff, and library patrons and to help close the country's digital and educational divide (sometimes referred to as the Homework Gap), particularly once ECF program funding for off-premises broadband connectivity ends on June 30, 2024. To achieve these objectives, the NPRM proposes to make the off-premises use of Wi-Fi hotspots and services by students, school staff, and library patrons who would otherwise be unable to engage in remote learning eligible for E-Rate support.

51. The Commission seeks comments on its proposal to address the Homework Gap through the E-Rate program. Based on the Commission's experience gained through the ECF program, its prior record, and other data sources, the Commission believes that there are significant benefits and need for the proposed rules in continuing to fund the off-premises use of Wi-Fi hotspots and services for students, school staff, and library patrons who would otherwise be unable to fully engage in remote learning. The NPRM requests comments on multiple ways to implement funding for the off-premises use of Wi-Fi hotspots and services within the existing E-Rate program processes, including eligibility limits and how to prioritize requests for off-premises Wi-Fi hotspots and services to help balance service needs with limited E-Rate funding. It also seeks comments on how to ensure cost-effective purchases and the potential challenges associated with conducting competitive bidding for off-premises Wi-Fi hotspots and services. Additionally, the NPRM seeks comments on what actions are necessary to safeguard these critical funds from potential waste, fraud, or abuse, for example, how to ensure the off-premises Wi-Fi hotspots and services are being used by the intended recipient and serve an educational purpose. The Commission also seeks comment on modifying the recordkeeping requirements to require applicants to maintain equipment and service inventories for off-premises Wi-Fi hotspots and services purchased with E-Rate support. Furthermore, the NPRM seeks comments on how to protect minor online users from harmful content.

52. The proposed action is authorized pursuant to sections 1 through 4, 201-202, 254, 303(r), and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 151 through 154, 201-202, 254, 303(r), and 403.

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

54. Small Businesses, Small Organizations, Small Governmental Jurisdictions. The Commission's actions, over time, may affect small entities that are not easily categorized at present. The Commission therefore describes, at the outset, three broad groups of small entities that could be directly affected herein. First, while there are industry specific size standards for small businesses that are used in the regulatory flexibility analysis, according to data from the Small Business Administration's (SBA) Office of Advocacy, in general a small business is an independent business having fewer than 500 employees. These types of small businesses represent 99.9% of all businesses in the United States, which translates to 33.2 million businesses.

55. Next, the type of small entity described as a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000 or less to delineate its annual electronic filing requirements for small exempt organizations. Nationwide, for tax year 2020, there were approximately 447,689 small exempt organizations in the U.S. reporting revenues of $50,000 or less according to the registration and tax data for exempt organizations available from the IRS.

56. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” U.S. Census Bureau data from the 2017 Census of Governments indicate there were 90,075 local governmental jurisdictions consisting of general purpose governments and special purpose governments in the United States. Of this number, there were 36,931 general purpose governments (county, municipal, and town or township) with populations of less than 50,000 and 12,040 special purpose governments—independent school districts with enrollment populations of less than 50,000. Accordingly, based on the 2017 U.S. Census of Governments data, the Commission estimates that at least 48,971 entities fall into the category of “small governmental jurisdictions.”

57. Small entities potentially affected by the rules herein include Schools, Libraries, Wired Telecommunications Carriers, All Other Telecommunications, Wireless Telecommunications Carriers (except Satellite), Wireless Telephony, Wired Broadband internet Access Service Providers (Wired ISPs), Wireless Broadband internet Access Service Providers (Wireless ISPs or WISPs), internet Service Providers (Non-Broadband), Vendors of Infrastructure Development or Network Buildout, Telephone Apparatus Manufacturing, and Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing.

58. The potential rule changes discussed in the NPRM if adopted, could impose some new or modified reporting, recordkeeping, or other compliance requirements on small entities. The NPRM proposes to apply existing E-Rate recordkeeping requirements to funding provided for the off-premises use of Wi-Fi hotspots and services and seeks comment on whether additional recordkeeping requirements should be imposed, such as the requirement in the ECF program to maintain detailed equipment and service inventories for each device or service purchased with ECF support and provided to an individual student, school staff member, or library patron. The proposed actions would require schools and libraries to maintain inventory records of the Wi-Fi hotspot device make/model, the device serial number, the name of the person to whom the device was provided, and the dates the device was loaned out and returned to the school or library; and for services, the type of service provided, the broadband plan details ( i.e., upload and download speeds and the monthly data cap), and the name of the person to whom the service was provided. To ensure the equipment and services are being used, the NPRM also seeks comment on whether applicants and/or service providers should be required to retain and produce monthly usage reports for Wi-Fi hotspots and services funded through the E-Rate program.

59. Additionally, regarding the Commission's proposal to prioritize for students, school staff, and library patrons that lack internet access outside of school or library premises, the NPRM asks whether applicants should be required to determine and maintain records of students', school staff members', or library patrons' unmet need by, for example, conducting surveys. Although, new recordkeeping requirements may be implemented if the proposals in the NPRM are adopted, most of the recordkeeping would be similar to what most applicants, including small entities, are already familiar with and currently undertaking for the E-Rate and ECF programs.

60. In assessing the cost of compliance for small entities, at this time the Commission cannot quantify the cost of compliance with any of the potential rule changes that may be adopted. Further, the Commission is not in a position to determine whether, if adopted, the proposals and matters upon which the NPRM seeks comment will require small entities to hire professionals to comply. The information the Commission receives in comments, including, where requested, cost information, will help the Commission identify and evaluate relevant compliance matters for small entities, including compliance costs and other burdens that may result from potential changes discussed in the NPRM.

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

62. In the NPRM, the Commission takes steps to minimize the economic impact on small entities of the proposed changes to the E-Rate program on which it seeks comment. Absent the proposed action, schools and libraries receiving ECF program support may no longer be able to provide the broadband connectivity needed to engage in remote learning to their students, school staff, and library patrons once the program ends. The NPRM therefore proposes to make the off-premises use of Wi-Fi hotspots and services eligible for E-Rate funding to support remote learning for students, school staff, and library patrons with unmet needs, which, if adopted, will reduce the burden on applicants, including small entities, who seek to provide students, school staff, and library patrons the off-premise broadband connectivity needed for educational success. This proposal will also lessen the administrative requirements of cost-allocating certain portions of services used off-premises from applicants' funding requests. The NPRM also seeks comment relevant to small entities, including entities in remote areas, by asking how to conduct competitive bidding for off-premises wireless services delivered to multiple locations.

63. Additionally, the NPRM invites commenters to suggest other measures or alternatives the Commission should consider to best implement E-Rate funding for Wi-Fi hotspots and internet services for off-premises use. This may result in proposals from small entities that lessen the economic impact of the proposed changes to the E-Rate program, and increase their participation. The Commission expects the information received in the comments to allow it to more fully consider ways to minimize the economic impact on small entities and explore additional alternatives to improve and simplify opportunities for small entities to participate in the E-Rate program.

64. Federal Rules that May Duplicate, Overlap, or Conflict with the Proposed Rules. None.

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

66. Providing Accountability Through Transparency Act. Consistent with the Providing Accountability Through Transparency Act, Public Law 118-9, a summary of this document will be available on https://www.fcc.gov/proposed-rulemakings.

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

68. Accordingly, it is ordered that, pursuant to the authority found in sections 1 through 4, 201-202, 254, 303(r), and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 151 through 154, 201 through 202, 254, 303(r), and 403, this Notice of Proposed Rulemaking is adopted.

69. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

For the reasons set forth above, the Federal Communications Commission proposes to amend part 54 of title 47 of the Code of Federal Regulations as follows:

This is a summary of the Commission's Further Notice of Proposed Rulemaking, in WT Docket No. 16-239; FCC 23-93, adopted on November 13, 2023, and released on November 13, 2023. The full text of this document is available for public inspection online at https://docs.fcc.gov/public/attachments/FCC-23-93A1.pdf.

1. On November 13, 2023 the Commission adopted a Report and Order eliminating the baud rate applicable to certain amateur radio bands and implementing a 2.8 kHz bandwidth limitation in the applicable bands. There are multiple bands in the amateur radio service that have baud rate limitations and were not discussed in the Notice of Proposed Rulemaking (NPRM) underlying the Report and Order. Two bands—135.7-137.8 kHz (2200 meter) and 472-479 kHz (630 meter)—were allocated for use in the amateur radio service after the Commission released the NPRM in 2016. There are also multiple very high frequency (VHF) bands and one ultra-high frequency (UHF) band that have baud rate limitations. In the Further Notice of Proposed Rulemaking (FNPRM) the Commission proposes to remove the baud rate limitation in the two bands allocated for amateur radio use after the Commission released the NPRM in 2016 and in the VHF/UHF bands. Additionally, the Commission seeks comment on the appropriate bandwidth limitation for the 2200 meter and 630 meter bands, and proposes to maintain the existing bandwidth limitations in the Commission's rules for VHF/UHF bands.

2. In 2016, the Commission released the NPRM seeking comment on eliminating the baud rate limit in certain amateur bands and amending part 97 of the Commission's rules accordingly. The NPRM also tentatively concluded that a 2.8 kilohertz bandwidth limitation for RTTY and data emissions in the MF/HF bands was not necessary, but sought comment on this conclusion. The NPRM did not seek comment on eliminating the baud rate limit in the VHF or UHF bands allocated for amateur radio service. In 2017, the Commission adopted rules permitting fixed amateur radio operations in 135.7-137.8 kHz (2200 meter) and 472-479 kHz (630 meter) bands. These bands are allocated to the amateur radio service on a secondary basis. Consistent with the part 97 rules in effect for other amateur bands at that time, the Commission adopted a 300 baud rate limitation for both the 2200 meter band and the 630 meter band.

3. For the reasons outlined in the Report and Order, the Commission tentatively concludes that it should eliminate the baud rate limitation in the 2200 meter and 630 meter bands as well as the VHF and UHF amateur radio bands. These bands present the same technological opportunities for experimentation and innovation as the amateur radio service bands that are the subject of the Report and Order and likewise will be limited if a baud rate limitation is allowed to remain for these bands. Concomitantly, the Commission seeks comment on the appropriate bandwidth limitation for the 2200 meter band and the 630 meter band as well as on maintaining the bandwidth limitations already in the VHF and UHF bands. The Commission specifically seeks comment on these proposals. Alternatively, should it consider changing any of the existing bandwidth limitations in the VHF and UHF bands allocated to the amateur radio service? Commenters seeking to modify existing bandwidth limitations must provide support for the modification, including any associated costs and benefits. Commenters should focus their comments on the VHF and UHF bands and the 2200 meter band and the 630 meter band that were allocated for amateur radio service after the release of the NPRM. The Commission does not seek comment on other, unrelated issues in the docket at this time.

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

5. Regulatory Flexibility Certification. The Regulatory Flexibility Act of 1980, as amended (RFA) requires that an agency prepare a regulatory flexibility analysis for notice and comment rulemakings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).

6. In the FNPRM, the Commission proposes to amend the amateur service rules to change technical rules applicable to data emissions that an amateur radio operator may use in his or her communications with other amateur radio operators in the 135.7-137.8 kHz (2200 meter) and 472-479 kHz (630 meter) bands, and VHF and UHF bands. As discussed above, the RFA's definition of “small entities” does not include a “person” or an individual, as the terms are used in this proceeding. As a result, the proposed rules do not apply to “small entities,” but instead apply exclusively to individuals who hold certain Commission authorizations. Accordingly, applying the statutorily mandated criteria the Commission concludes and, therefore, certifies in this Initial Regulatory Flexibility Certification, that the rules adopted in the FNPRM will not have a significant economic impact on a substantial number of small entities.

7. The Commission will send copies of the FNPRM, including copies of the Initial Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the SBA.

8. Paperwork Reduction Act. This document does not contain proposed information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

9. Providing Accountability Through Transparency Act: The Providing Accountability Through Transparency Act requires each agency, in providing notice of a rulemaking, to post online a brief plain-language summary of the proposed rule. Accordingly, the Commission will publish the required summary of this Further Notice of Proposed Rulemaking on https://www.fcc.gov/proposed-rulemakings.

10. Accordingly, it is ordered that, pursuant to Sections 4(i), 5, 303(r), and 403 of the Communications Act of 1934, 47 U.S.C. 154(i), 155, 303(r), and 403 of the Commission's rules, that this Further Notice of Proposed Rulemaking is hereby adopted . Proceeding RM-11708 is terminated .

11. It is further ordered that the Office of the Secretary, Reference Information Center, shall send a copy of the Further Notice of Proposed Rulemaking including the Initial Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 97 as follows:

I. Background

As part of a broader effort to improve the Department of Interior's (DOI's) procurement function and strengthen its workforce, the Department recently made changes to its procurement governance. These updates were made in accordance with 41 U.S.C. 1702, Chief Acquisition Officers and senior procurement executives, and Departmental Manual 205 DM 11, General Delegations, Procurement and Contracting. In amending its procurement governance, DOI created consistency in organizational structure and leadership roles across its bureaus and offices, and reassigned roles established by the Federal Acquisition Regulation to better streamline acquisition approval processes. This proposed rule amends the Department of the Interior Acquisition Regulation to reflect the changes in procurement governance by removing role designations no longer used and replacing with the appropriate procurement roles.

The Federal Acquisition Regulations System consists of the Federal Acquisition Regulation (FAR), which is the codification of uniform policies and procedures for acquisition by all executive agencies, and agency acquisition regulations, such as the Department of the Interior Acquisition Regulation (DIAR), that implement or supplement the FAR. The Federal Acquisition Regulations System is codified in Title 48 of the Code of Federal Regulations (CFR).

Part 2 of the FAR defines the following key procurement roles: agency head, Chief Acquisition Officer (in accordance with 41 U.S.C. 1702), senior procurement executive (in accordance with 41 U.S.C. 1702), head of the contracting activity, and contracting officer. The FAR uses the term “chief of the contracting office” without defining it. Part 1402 of the current DIAR identifies within the Department the agency head, senior procurement executive, and heads of the contracting activity. Part 1402 of the DIAR also defines the terms “bureau procurement chief” and “chief of the contracting office”.

This rule proposes to revise the DIAR in the following ways:

• Remove the term “bureau procurement chief” and replace with “head of contracting activity”.

• Amend the Department's definition of “head of contract activity”.

• Add and define the term “bureau procurement executive”.

• Update references to the above terms as used throughout the DIAR.

The term “bureau procurement chief” (BPC) is not used in the FAR or across executive agencies broadly. DOI defined the term in the DIAR to mean the senior General Schedule (GS) Series 1102 (contracting) official in a bureau or office. The term “head of contracting activity” (HCA) is defined in the FAR as the official who has overall responsibility for managing the contracting activity. The current DIAR further specifies that the HCA is the assistant or associate administrative head of each bureau and office who has overall responsibility for managing contracting. Within DOI, the BPC would be in a direct reporting line to the HCA. Except for the Interior Business Center, the HCA would not necessarily have a GS-1102 background and would also be responsible for other areas beyond procurement.

Both the FAR and DIAR require HCA review and approval of certain procurement actions. In practice, HCAs delegated their approvals to the BPC in most cases allowed under regulation. When HCA approval was required, it would still come through the BPC, but the additional layer of review would result in additional time to coordinate HCA briefing and approval.

When reevaluating DOI's procurement governance, the Department determined that in practice, the BPC was indeed the individual responsible for managing the contracting activity and the HCA was the senior executive accountable for the contracting activity but not involved in the day-to-day management of the function. The Chief Acquisition Officer, senior procurement executive, HCAs, and BPCs all concurred that accordingly, the senior GS-1102 in a bureau (or office equivalent) should be designated as the HCA rather than the DIAR specific term BPC. It was determined that this change would also streamline procurement actions requiring HCA approval by removing a layer of review that was either delegated or offered nominal additional benefit. The senior executives who had been designated as HCAs would now be designated as `bureau procurement executives' (BPEs) and would still be accountable for the bureau's contracting function.

These changes are part of a broader Departmental effort to provide greater consistency across bureau and office procurement organizations and to empower procurement leadership. The changes to the titles bureau procurement chief, head of contracting activity, and bureau procurement executive do not result in any change to reporting chains or key duties of those holding these positions. The changes also do not impose any new requirements on or change the manner in which DOI interacts with its contractors and the public.

Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. OIRA has determined that this proposed rule is not significant.

Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The Executive Order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public, where these approaches are relevant, feasible, and consistent with regulatory objectives. 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 rule in a manner consistent with these requirements.

Executive Order 14094 reaffirms the principles of E.O. 12866 while calling for improvements in public participation, inclusiveness, and regulatory analysis. We have developed this rule in a manner consistent with E.O. 14094.

The Secretary certifies that the adoption of this proposed rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Therefore, under 5 U.S.C. 605(b), this rulemaking is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

This proposed rule is not a major rule under the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2)). This rule:

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

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

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

This proposed rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or tribal governments, or the private sector nor does the rule impose requirements on State, local, or tribal governments. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq. ) is not required.

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

Under the criteria in section 1 of E.O. 13132, this proposed rule does not have sufficient Federalism implications to warrant the preparation of a Federalism summary impact statement. It would not substantially and directly affect the relationship between the Federal and state governments. A Federalism summary impact statement is not required.

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

(a) meets the criteria of section 3(a) of this E.O. requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

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

The Department of the Interior strives to strengthen its government-to-government relationship with Indian tribes through a commitment to consultation with Indian tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria in E.O. 13175 and have determined there will not be 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. Consultation with Indian tribes is not required.

This proposed rule does not cause any collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq. ) A Paperwork Reduction Act clearance is not required.

This proposed rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (NEPA) is not required because the rule is covered by the categorical exclusion listed in 43 CFR 46.210(f). We have also determined that the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.

This proposed rule is not a significant energy action under the definition in E.O. 13211. A Statement of Energy Effects is not required.

We are required by Executive Orders 12866 (section 1(b)(12)), and 12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(a) Be logically organized;

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

(c) Use common, everyday words and clear language rather than jargon;

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

(e) Use lists and tables wherever possible.

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

You may submit your comments and materials regarding this proposed rule by the method listed in the Addresses section. We will post all comments on https://www.regulations.gov. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information may be publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

For the reasons set out in the preamble, the Department of the Interior, Office of Acquisition and Property Management, proposes to amend 48 CFR chapter 14 as follows:

Background

On August 22, 2023, we published a proposed rule (88 FR 57046) to list the toothless blindcat and widemouth blindcat as endangered species under the Act (16 U.S.C. 1531 et seq. ). The proposed rule opened a 60-day comment period, ending October 23, 2023. On October 12, 2023, we received a request to extend the public comment period. With this document, we reopen the public comment period for an additional 30 days, as specified above in DATES .

For a description of previous Federal actions concerning the toothless blindcat and widemouth blindcat and information on the types of comments that would be helpful to us in making final determinations on our proposal, please refer to the August 22, 2023, proposed rule (88 FR 57046 at 57046-57047).

We will accept written comments and information during the reopened comment period on our August 22, 2023, proposed rule to list the toothless blindcat and widemouth blindcat. We will consider information and recommendations from all interested parties. We intend that any final action resulting from the proposal will be based on the best scientific and commercial data available and will be as accurate and as effective as possible. Our final determinations will take into consideration all comments and any additional information we receive during both comment periods on the proposed rule.

Because we will consider all comments and information we receive during both open comment periods, our final determinations may differ from our August 22, 2023, proposed rule (88 FR 57046). Based on the new information we receive (and, if relevant, any comments on that new information), we may conclude that one or both of the species is threatened instead of endangered, or we may conclude that one or both of the species does not warrant listing as either an endangered species or a threatened species. In our final rule, we will clearly explain our rationale and the basis for our final decisions, including why we made changes, if any, that differ from the August 22, 2023, proposal.

If you already submitted comments or information on the August 22, 2023, proposed rule, please do not resubmit them. Any such comments are incorporated as part of the public record of the rulemaking proceeding, and we will fully consider them in the preparation of our final determinations.

Comments should be as specific as possible. Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you assert. Please note that submissions merely stating support for, or opposition to, the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered species or a threatened species must be made “solely on the basis of the best scientific and commercial data available.”

You may submit your comments and materials by one of the methods listed in ADDRESSES . We request that you send comments only by the methods described in ADDRESSES . If you submit information via https://www.regulations.gov, your entire submission—including your personal identifying information—will be posted on the website. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on https://www.regulations.gov. Comments and materials we receive, as well as supporting documentation we used in preparing the proposed rule, will be available for public inspection on https://www.regulations.gov at FWS-R2-ES-2023-0069.

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

The Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq. ), is the authority for this action.

Background

On July 17, 2023, the Secretary of Commerce received a petition from the Center for Biological Diversity and Pacific Rivers (hereafter, the Petitioners) to list the spring-run Chinook salmon on the WC as a threatened or endangered ESU under the ESA or, alternatively, list WC Chinook salmon (inclusive of all run types) as a threatened or endangered ESU. The Petitioners also request the designation of critical habitat concurrent with ESA listing.

Previously, in 1999, we identified the WC Chinook salmon ESU as comprised of coastal populations of spring-, summer- and fall-run Chinook salmon spawning north of the Columbia River and west of the Elwha River and determined that the ESU did not warrant listing as threatened or endangered under the ESA (63 FR 14308, March 24, 1999). The Petitioners are requesting that spring-run Chinook salmon on the WC be considered as a separate ESU and listed as threatened or endangered. The Petitioners assert that new research into the genomic basis for premature migration in salmonids demonstrates that significant genetic differences underlie the spring- and fall-run life history types, and that the unique evolutionary lineage of spring-run Chinook salmon warrants their listing as a separate ESU. The petition includes an overview of new research into the genomic basis for premature migration in salmonids, as well as general biological information about spring-run Chinook salmon on the WC including their distribution and range, life history characteristics, habitat requirements, as well as basin-level population status and trends and factors contributing to the populations' status. The Petitioners assert that spring-run Chinook salmon are facing existential threats, and therefore, if NMFS does not delineate and list the spring-run WC Chinook salmon population as threatened and endangered under the ESA, the current WC Chinook salmon ESU that includes spring-, summer- and fall-run populations should be listed as threatened or endangered under the ESA. Copies of the petition are available as described above (see ADDRESSES ).

Section 4(b)(3)(A) of the ESA of 1973, as amended (16 U.S.C. 1531 et seq. ), requires, to the maximum extent practicable, that within 90 days of receipt of a petition to list a species as threatened or endangered, the Secretary of Commerce makes a finding on whether that petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted, and to promptly publish such finding in the Federal Register (16 U.S.C. 1533(b)(3)(A)). When it is found that substantial scientific or commercial information in a petition indicates the petitioned action may be warranted (a “positive 90-day finding”), we are required to promptly commence a review of the status of the species concerned during which we will conduct a comprehensive review of the best available scientific and commercial data. In such cases, we conclude the review with a finding as to whether the petitioned action is warranted within 12 months of receipt of the petition. Because the finding at the 12-month stage is based on a more thorough review of the available information, as compared to the narrow scope of review at the 90-day stage, a “may be warranted” finding does not prejudge the outcome of the status review.

Under the ESA, a listing determination may address a species, which is defined to also include subspecies and, for any vertebrate species, any distinct population segment (DPS) that interbreeds when mature (16 U.S.C. 1532(16)). In 1991, we issued the Policy on Applying the Definition of Species Under the Endangered Species Act to Pacific Salmon (ESU Policy; 56 FR 58612, November 20, 1991), which explains that Pacific salmon populations will be considered a DPS, and hence a “species” under the ESA, if it represents an “evolutionarily significant unit” of the biological species. The two criteria for delineating an ESU are: (1) It is substantially reproductively isolated from other conspecific populations; and (2) it represents an important component in the evolutionary legacy of the species. The ESU Policy was used to define the WC Chinook salmon ESU in 1999 (64 FR 50394, September 16, 1999), and we use it exclusively for defining DPSs of Pacific salmon. A joint NMFS-U.S. Fish and Wildlife Service (USFWS) (jointly, “the Services”) policy clarifies the Services' interpretation of the phrase “distinct population segment” for the purposes of listing, delisting, and reclassifying a species under the ESA (DPS Policy; 61 FR 4722, February 7, 1996). In announcing this policy, the Services indicated that the ESU Policy for Pacific salmon was consistent with the DPS Policy and that NMFS would continue to use the ESU Policy for Pacific salmon.

A species, subspecies, or DPS is “endangered” if it is in danger of extinction throughout all or a significant portion of its range, and “threatened” if it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range (ESA sections 3(6) and 3(20), respectively, 16 U.S.C. 1532(6) and (20)). Pursuant to the ESA and our implementing regulations, we determine whether species are threatened or endangered based on any one or a combination of the following five section 4(a)(1) factors: the present or threatened destruction, modification, or curtailment of habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; inadequacy of existing regulatory mechanisms to address identified threats; or any other natural or manmade factors affecting the species' existence (16 U.S.C. 1533(a)(1), 50 CFR 424.11(c)).

ESA-implementing regulations issued jointly by the Services (50 CFR 424.14(h)(1)(i)) define “substantial scientific or commercial information” in the context of reviewing a petition to list, delist, or reclassify a species as “credible scientific or commercial information in support of the petitioner's claims such that a reasonable person conducting an impartial scientific review would conclude that the action proposed in the petition may be warranted. Conclusions drawn in the petition without the support of credible scientific or commercial information will not be considered `substantial information.' ” In reaching the initial (90-day) finding on the petition, we consider the information described in sections 50 CFR 424.14(c), (d), and (g) (if applicable), and information readily available at the time the determination is made § 424.14(h)(1)(ii).

Our determination as to whether the petition provides substantial scientific or commercial information indicating that the petitioned action may be warranted will depend in part on the degree to which the petition includes the following types of information: (1) Information on current population status and trends and estimates of current population sizes and distributions, both in captivity and the wild, if available; (2) identification of the factors under section 4(a)(1) of the ESA that may affect the species and where these factors are acting upon the species; (3) whether and to what extent any or all of the factors alone or in combination identified in section 4(a)(1) of the ESA may cause the species to be an endangered species or threatened species ( i.e., the species is currently in danger of extinction or is likely to become so within the foreseeable future), and, if so, how high in magnitude and how imminent the threats to the species and its habitat are; (4) information on adequacy of regulatory protections and effectiveness of conservation activities by States as well as other parties, that have been initiated or that are ongoing, that may protect the species or its habitat; and (5) a complete, balanced representation of the relevant facts, including information that may contradict claims in the petition. See 50 CFR 424.14(d).

If the petitioner provides supplemental information before the initial finding is made and states that it is part of the petition, the new information, along with the previously submitted information, is treated as a new petition that supersedes the original petition, and the statutory timeframes will begin when such supplemental information is received. See 50 CFR 424.14(g).

We may also consider information readily available at the time the determination is made (§ 424.14(h)(1)(ii)). We are not required to consider any supporting materials cited by the petitioner if the petitioner does not provide electronic or hard copies, to the extent permitted by U.S. copyright law, or appropriate excerpts or quotations from those materials ( e.g., publications, maps, reports, letters from authorities). See 50 CFR 424.14(h)(1)(ii) and 50 CFR 424.14(c)(6).

The “substantial scientific or commercial information” standard must be applied in light of any prior reviews or findings we have made on the listing status of the species that is the subject of the petition. Where we have already conducted a finding on, or review of, the listing status of that species (whether in response to a petition or on our own initiative), we will evaluate any petition received thereafter seeking to list, delist, or reclassify that species to determine whether a reasonable person conducting an impartial scientific review would conclude that the action proposed in the petition may be warranted despite the previous review or finding. Where the prior review resulted in a final agency action—such as a final listing determination, 90-day not-substantial finding, or 12-month not-warranted finding—a petitioned action will generally not be considered to present substantial scientific and commercial information indicating that the action may be warranted unless the petition provides new information or analysis not previously considered. See 50 CFR 424.14(h)(1)(iii).

During the 90-day finding stage, we do not conduct additional research, and we do not solicit information from parties outside the agency to help us in evaluating the petition. We will accept the Petitioner's sources and characterizations of the information presented if they appear to be based on accepted scientific principles, unless we have specific information in our files that indicates the petition's information is incorrect, unreliable, obsolete, or otherwise irrelevant to the requested action. Information that is susceptible to more than one interpretation or that is contradicted by other available information will not be dismissed at the 90-day finding stage, so long as it is reliable and a reasonable person conducting an impartial scientific review would conclude it supports the petitioner's assertions. In other words, conclusive information indicating that the species may meet the ESA's requirements for listing is not required to make a positive 90-day finding. We will not conclude that a lack of specific information alone necessitates a negative 90-day finding if a reasonable person conducting an impartial scientific review would conclude that the unknown information itself suggests the species may be at risk of extinction presently or within the foreseeable future.

To make a 90-day finding on a petition to list a species, we evaluate whether the petition presents substantial scientific or commercial information indicating the subject species may be either threatened or endangered, as defined by the ESA. First, we evaluate whether the information presented in the petition, in light of the information readily available in our files, indicates that the petitioned entity constitutes a “species” eligible for listing under the ESA. Next, we evaluate whether the information indicates that the species faces an extinction risk such that listing, delisting, or reclassification may be warranted; this may be indicated in information expressly discussing the species' status and trends, or in information describing impacts and threats to the species. We evaluate any information on specific demographic factors pertinent to evaluating extinction risk for the species ( e.g., population abundance and trends, productivity, spatial structure, age structure, sex ratio, diversity, current and historical range, habitat integrity or fragmentation), and the potential contribution of identified demographic risks to extinction risk for the species. We then evaluate the potential links between these demographic risks and the causative impacts and threats identified in section 4(a)(1) of the ESA.

Information presented on impacts or threats should be specific to the species and should reasonably suggest that one or more of these factors may be operative threats that act or have acted on the species to the point that it may warrant protection under the ESA. Broad statements about generalized threats to the species, or identification of factors that could negatively impact a species, alone, do not constitute substantial information indicating that listing may be warranted. We look for information indicating that not only is the particular species exposed to a factor, but that the species may be responding in a negative fashion; then we assess the potential significance of that negative response.

Many petitions identify risk classifications made by nongovernmental organizations, such as the International Union for Conservation of Nature (IUCN), the American Fisheries Society, or NatureServe, as evidence of extinction risk for a species. Risk classifications by such organizations or made under other Federal or State statutes may be informative, but such classification alone may not provide the rationale for a positive 90-day finding under the ESA. For example, as explained by NatureServe, their assessments of a species' conservation status do “not constitute a recommendation by NatureServe for listing under the U.S. Endangered Species Act” because NatureServe assessments “have different criteria, evidence requirements, purposes and taxonomic coverage than government lists of endangered and threatened species, and therefore these two types of lists should not be expected to coincide” ( https://explorer.natureserve.org/AboutTheData/DataTypes/ConservationStatusCategories ). Additionally, species classifications under IUCN and the ESA are not equivalent; data standards, criteria used to evaluate species, and treatment of uncertainty are also not necessarily the same. Thus, when a petition cites such classifications, we will evaluate the source of information that the classification is based upon in light of the standards on extinction risk and impacts or threats discussed above.

On March 9, 1998, following the completion of a comprehensive status review of Chinook salmon ( Oncorhynchus tshawytscha ) populations in Washington, Oregon, Idaho, and California, we identified a total of 15 ESUs of Chinook salmon and published a proposed rule to list 7 Chinook salmon ESUs as threatened or endangered under the ESA (63 FR 11482). We also identified the WC Chinook salmon ESU as comprised of coastal populations of spring-, summer- and fall-run Chinook salmon spawning north of the Columbia River and west of the Elwha River. We did not propose to list the WC ESU, concluding that the ESU is distributed among a relatively large number of populations, most of which are large enough to avoid serious genetic and demographic risks associated with small populations. Thus, we made the determination that the ESU was neither in danger of extinction nor likely to become endangered in the foreseeable future (63 FR 11482, 11494, March 9, 1998).

The petition contains information and assertions in support of listing Chinook salmon under the two alternatives requested by the Petitioners. As discussed above, based on biological, genetic, and ecological information compiled and reviewed as part of a previous West Coast Chinook salmon status review (Myers et al., 1998), we included all spring-, summer- and fall-run Chinook salmon populations in river basins north of the Columbia River and west of the Elwha River in the WC Chinook salmon ESU (63 FR 11482, March 9, 1998). While run-timing was recognized as having a heritable basis, review of genetic data at that time did not identify clear sub-groups associated with migration timing within the WC Chinook salmon ESU. Spring- and fall-run Chinook salmon were found to be separate ESUs in other areas ( e.g., in the upper Columbia River, Snake River, and Sacramento River drainages). However, in coastal areas, life-history and genetic differences between runs were found to be modest, with spring- and fall-run fish exhibiting similar ocean distribution patterns and genetic characteristics (Myers et al., 1998).

The Petitioners present new information on the genomics of run-timing and assert that the spring-run populations of the WC Chinook salmon ESU meet the two ESU criteria outlined by the above-described ESU policy. Relying on inferred evidence from outside the WC ESU, the Petitioners assert that spring-run Chinook salmon in the WC ESU have been sufficiently isolated from fall-run Chinook salmon for evolutionarily important differences to have arisen and been maintained. The Petitioners present genetic evidence from populations outside the WC Chinook salmon ESU to suggest the spring-run Chinook salmon populations on the WC may qualify as a separate ESU from the fall-run populations. The Petitioners assert that findings from recently published articles on the evolutionary basis of premature migration in Pacific salmon (Prince et al., 2017; Narum et al., 2018; and Thompson et al., 2019; Koch and Narum 2020; Thompson et al., 2020; Willis et al., 2021; Waples et al., 2022) indicate that spring-run Chinook salmon in the WC ESU should be considered a separate ESU. Specifically, Prince et al., (2017) reported on a survey of genetic variation between mature (fall-run) and premature (spring- and summer-run) migrating populations of steelhead and Chinook salmon from California, Oregon, and Washington. Thompson et al., (2019) provide additional information about genetic differentiation between mature- and premature-migrating Chinook salmon in the Rogue River, Oregon, and in the Klamath River, California, particularly in response to anthropogenic changes. The Petitioners suggest that the results of these studies indicate that premature migration arose from a single evolutionary event within the species and, if lost, is not likely to re-evolve in time frames relevant to conservation planning. Petitioners further assert that spring-run Chinook salmon have a unique evolutionary history that is distinct from fall-run Chinook salmon in the same watersheds (Prince et al., 2017; Thompson et al., 2020).

The Petitioners also assert that the Chinook salmon spring-run life history represents an important component of the evolutionary legacy of the species. In support of this assertion, the Petitioners describe specific ecological (Quinn et al., 2016) and evolutionary benefits of the life history variation provided by spring-run populations within the WC Chinook salmon ESU. The Petitioners describe how spring-run Chinook salmon tend to spawn higher up in the watershed than fall-run and how this adds to the spatial distribution of the species. We find that the petition presents scientific or commercial information indicating that spring-run Chinook salmon on the WC may qualify as an ESU pursuant to our ESU Policy.

The Petitioners' listing request is focused on spring-run Chinook salmon declines in abundance, and they provide their analysis on the viability of and threats facing spring-run populations. Less information is provided regarding the fall-run populations.

The Petitioners assert that spring-run Chinook salmon populations in the WC ESU have suffered significant declines in numbers from historical abundance. The Petitioners cited findings by Nicholas and Hankin (1989) that all spring-run Chinook salmon populations on the WC are depressed from historical population sizes. Historically, spring-run Chinook salmon were abundant in the Chehalis, Quinault, Queets, and Hoh basins on the WC. The Petitioners use estimated in-river run size data from the Pacific Fishery Management Council (PFMC 2018) for the Chehalis, Queets, and Hoh basins and unpublished data from the Quinault Indian Nation for the Upper Quinault River. For all four basins, the data purportedly demonstrate downward population trends for spring-run Chinook salmon. The Petitioners also cite catch data from Tribal gillnet fishery records from 1953-1970 provided by the Washington Department of Fish and Wildlife (WDFW) and assert that the spring-run populations declined more rapidly than the fall-run populations during this time period. The petitioners attribute this decline to a rapid rise in the ocean salmon fisheries, both commercial and recreational. In particular, they note the growth in the troll fisheries off the WC as a factor contributing to the decline of all populations of WC Chinook spring-run salmon populations. The Petitioners assert that the spatial and temporal patterns of the fisheries (commercial, recreational, and tribal) are likely a major factor that affected the spring-run populations of the WC Chinook salmon.

A previous West Coast Chinook salmon status review (Myers et al., 1998) concluded that the long-term trends for most populations in this WC ESU were upward; however, several smaller populations (associated run types is unclear) were experiencing sharply downward trends. The status review concluded that fall-run populations were predominant and tended to be at a lower risk than spring- or summer-runs. The status review concluded that Chinook salmon in this ESU were not in danger of extinction nor were they likely to become so in the foreseeable future. However, it has been over 20 years since this status review was published and recent information on its status is incomplete.

The data in our files indicates that the WC Chinook salmon ESU consists of numerous fall-run populations and a smaller number of spring/summer-run populations. Overall abundance has been variable over the past several decades, but most populations do not have significant trends. The spring/summer-run populations make up about 10 percent of the total ESU abundance, and most populations are small with a few hundred or fewer spawners annually. If the spring/summer runs on the WC were to be considered a separate ESU, the extinction risk associated with these small populations would warrant evaluation. If both spring/summer- and fall-run were to be considered part of the same ESU, the contribution of run-timing diversity to that ESU's viability would warrant further evaluation based on updated science related to the genetic basis of run-timing.

The Petitioners assert that all five ESA section 4(a)(1) factors contribute to the need to list spring-run Chinook salmon on the WC or, alternatively, the WC Chinook salmon ESU (inclusive of all run types) as a threatened or endangered species under the ESA. While the petition presents information on each of the ESA section 4(a)(1) factors, we find that the information presented, including information within our files, regarding the destruction, modification, or curtailment of the species habitat or range; the inadequacy of existing regulatory mechanisms; and other natural or manmade factors affecting the species continued existence is substantial enough to make a determination that a reasonable person would conclude that the species may warrant listing as endangered or threatened based on these factors alone. As such, we focus our below discussion on the evidence and present our evaluation of the information regarding these factors and their impact on the extinction risk of the species. Each of these factors is discussed in further detail below.

The Petitioners assert that WC Chinook salmon face numerous threats to suitable habitat, including impacts from historical and ongoing logging practices, road development, dams, water diversions, migration barriers, pollutants, and channelization.

The Petitioners assert that habitat degradation due to logging and road development alters streamflow, sediment loading, sediment transport and deposition, channel stability and shape, substrate composition, stream temperatures, water quality, and riparian conditions within a watershed. This is supported by similar conclusions in NMFS' 1998 determination for the WC chinook salmon ESU that evaluated the status of habitat threats over an area within the range of the WC Chinook salmon ESU and concluded that degraded habitat conditions in this area continue to be of concern, largely related to forestry practice (63 FR 11482, March 9, 1998). The Petitioners specifically assert that extensive logging can be harmful to Chinook salmon populations by causing depletion of summer and early fall streamflows needed for adult migration, holding, spawning, and rearing. Perry and Jones (2017) found that after an initial delay, base streamflows were substantially decreased for decades in logged areas as compared to streamflows under pre-logging conditions.

The Petitioners further assert that large and small dams, water diversions, and other migration barriers impact WC Chinook salmon by significantly reducing the amount of spawning and rearing habitat, altering downstream river flows and temperature regimes, and delaying and impeding migration. Petitioners specifically describe dams in the Chehalis River that were built without fish passage and that have blocked access to historical habitats.

The Petitioners also highlight other ongoing anthropogenic disturbances that may cause habitat degradation including pollutants and channelization. The Petitioners cite numerous studies (Sedell and Froggatt 1984, Hulse et al., 2002, and Lestelle et al., 2005) that describe habitat impacts including decreased habitat complexity, decreased summer flows and water quality, and increased water temperatures.

The Petitioners cite Myers et al., (1998), noting that all basins in the ESU were affected by habitat degradation, largely related to forestry practices, and that only the Queets and Quinault River basins were determined not to have substantial habitat problems. While the Petitioners provide general descriptions of ongoing habitat degradation from various sources, they do not provide specific information that would suggest that habitat conditions overall have markedly deteriorated since our last review in the 1990s. In fact, while we know that individual instances of habitat modification have taken place since the 1990s, over the past couple of decades conditions may have improved as a result of new forest harvest regulations, fish passage requirements, and habitat restoration efforts. However, it is reasonable to assume that the persistence of degraded habitat conditions may be exerting sustained negative effects on Chinook salmon on the WC, and disproportionately so on spring-run populations. Consequently, changes in overall habitat condition and distribution are inconclusive and may be open to interpretation.

The Petitioners assert that existing international, Federal and State regulatory mechanisms are not sufficient to protect and ensure recovery of spring-run Chinook salmon occurring on the WC and their habitat. With respect to international regulatory mechanisms, the Petitioners assert that the Pacific Salmon Treaty does not require consideration of the condition of individual populations or the impacts on spring-run Chinook salmon populations from the WC in the determination of harvest allocations. The Petitioners state that, at the Federal level, the National Environmental Policy Act (NEPA), the ESA, the National Forest Management Act and Northwest Forest Plan, Olympic National Park, the Clean Water Act (CWA), and the Federal Energy Regulatory Commission (FERC) do not adequately protect spring-run Chinook salmon on the WC. Petitioners note that although the NEPA process requires Federal agencies to identify potential environmental impacts, NEPA analyses do not prohibit agencies from choosing project alternatives that may adversely affect spring-run Chinook salmon on the WC or their habitats. As a result, Petitioners assert that the NEPA process often affords little to no protections or alternatives to avoid harm to spring-run Chinook salmon. The Petitioners cite a proposed new dam on the mainstem of the Chehalis River as an example of a project that may adversely affect spring-run Chinook salmon on the WC. The proposed dam is designed to hold back flows and create a temporary reservoir when flows exceed a threshold level to ameliorate flooding downstream. When formed, the temporary reservoir would inundate more than 6 miles of the upper mainstem Chehalis River and the lower reaches of several major tributaries. The area of inundation would encompass historical spring-run Chinook salmon spawning grounds in the upper river (Phinney and Bucknell 1975; Weyerhaeuser 1994; Lestelle et al., 2019). The Petitioners note that, under section 404 of the Clean Water Act, the U.S. Army Corps of Engineers determined that the proposed dam project may have significant impacts on the environment and released a draft environmental impact statement (EIS) on the proposed dam project in 2020. The draft EIS used an Ecosystem Diagnosis and Treatment model (McConnaha et al., 2017; ACOE 2020) to analyze the potential impacts of the proposed dam and concluded that during the 5-year construction period Chinook salmon returning to the upper mainstem river could be reduced by up to 80 percent. The draft EIS also concluded that impacts from the proposed dam at a basin-wide scale were predicted to be minimal for most modeled species and that habitat in the upper watershed above Crim Creek is currently beneficial salmonid habitat that can provide a buffer against future potential degradation (ACOE 2020). The final EIS has not been completed.

Petitioners assert that the spring-run Chinook salmon on the WC could be better protected under the ESA through Habitat Conservation Plans (HCP). Petitioners assert that the National Forest Management Act does not effectively limit the long-term impacts on salmonid habitat in Washington coastal watersheds from activities like logging, road-building, and mining. In 1990, the USFS adopted a Land and Resource Management Plan (LRMP) for the Olympic National Forest, which aimed to increase fish production potential through habitat enhancement projects. In 1998, the LRMP was amended to be consistent with the Northwest Forest Plan that includes an Aquatic Conservation Strategy (ACS) intended to maintain and protect native fish and their habitat (Thomas et al., 1993; Reeves et al., 2006). The ACS included designation of riparian management zones, activity-specific management standards, watershed assessments, watershed restoration, and identification of key watersheds. Among other things, the ACS requires the USFS to “maintain and restore the sediment regime under which aquatic ecosystems evolved” (USDA 1994). The Petitioners assert that there is little evidence to suggest that the habitat improvements described in the LRMP or ACS have resulted in increased salmon production.

Petitioners assert further that portions of spring-run Chinook salmon populations spawn and rear within the Olympic National Park, benefiting from relatively pristine aquatic habitat conditions (Halofsky et al., 2011). However, maintenance and repair of park roads adjacent to rivers have caused significant impacts on fish and aquatic life. Petitioners also note that spring-run Chinook salmon habitat in the park is still impacted by legacy effects of past logging and roads, leading to ongoing impairment of salmonid habitat, and that logging roads and associated channel crossings are still major issues for fish habitat quality (Halofsky et al., 2011).

Petitioners call attention to Section 404 of the CWA as not adequately protecting spring-run Chinook salmon on the WC, particularly with respect to nonpoint sources of pollution like logging and farming (WDOE 2016; NIFWC 2020). The Petitioners assert that, in many areas, the Environmental Protection Agency-approved CWA water quality standards are not being met. In addition, Total Maximum Daily Loads (TMDLs) have not yet been developed and approved for many water bodies where the salmon are found; as a result, nonpoint source pollution is driving water quality issues in those water bodies.

Petitioners assert that FERC has provided inadequate protection for anadromous fish during its licensing, and relicensing processes. Petitioners use the Wynoochee Dam in the Chehalis River basin as an example. Wynoochee Dam was constructed in 1972 for flood control, irrigation, and industrial water storage; a powerhouse was added by Tacoma Power for hydroelectric energy in 1994. A FERC permit was issued for the dam in 1987, at which time there were no federally listed species. Tacoma Power operates a fish collection facility downstream, but the Petitioners assert that there are no requirements to ensure adequate downstream flows or water quality for the benefit of salmonids downstream of the dam.

The Petitioners reference several Washington state laws, initiatives, plans, and programs. This includes Washington state laws for salmon recovery and fish passage, the Washington Forest Practices Act, and the Washington State Environmental Policy Act; the Salmon Recovery Funding Board and affiliated Salmon Recovery Funding Program; the Grays Harbor Basin Salmon Management Plan; the Chehalis Basin Strategy; the Washington Coast Sustainable Salmon Plan; the State Wildlife Action Plan; and the salmon monitoring program conducted by WDFW and tribal biologists. However, the Petitioners assert that, despite the extensive efforts of these state and tribal management entities to protect the fisheries-related resources of the Washington coastal river basins, the wild spring-run Chinook salmon populations in those basins are in decline and are threatened with extinction.

We conclude that regulations are dynamic and are frequently modified over time. In general, since the listing of multiple species of salmon and steelhead along the West Coast in the 1990s, regulations have been revised to better protect these anadromous species. However, to the degree that habitat degradation can be an indicator of regulatory inadequacy, and given that we have found above that habitat degradation may be a threat to WC Chinook salmon, it stands to reason that regulatory mechanisms may be inadequate to protect WC Chinook salmon.

The Petitioners assert climate change is impacting the quantity and quality of habitat for WC Chinook salmon, especially spring-run populations, with the melting of glaciers on the Olympic Peninsula, changes in precipitation patterns, lower summer stream flows, higher water temperatures, and reduction in food due to changing ocean conditions. Citing the Intergovernmental Panel on Climate Change (IPCC) 2021 report, Petitioners call out the last four decades of successive air temperature increases, and the projected rise in global temperatures. Petitioners also assert that climate change will profoundly affect the Pacific Northwest. With a focus on the Olympic Peninsula, impacts such as warming, sea level rise, erosion, and changes in stream flows will not be uncommon (Halofsky et al., 2011; Dalton et al., 2016). Petitioners state freshwater habitat changes due to climate change will adversely affect WC Chinook salmon, especially spring-run populations. Citing Halofsky et al., 2011, the Petitioners note it is uncertain whether salmon populations can adapt quickly enough to cope with the combined effects of anthropogenic climate change. Using a 2011 NMFS study as support, the Petitioners also assert that throughout the life cycle of salmon along the WC, the main predicted effects include warmer, drier summers, reduced snowpack, lower summer flows, higher summer stream temperatures, and increased winter floods. The Petitioners assert that climate change is altering offshore and nearshore habitat of the WC including warming sea surface temperatures (Mote and Salathe 2010; Miller et al., 2013; USFWS 2020), upwelling pattern changes (Miller et al., 2013), and increased acidification (Miller et al., 2013) leading to limited ocean productivity for salmon (Ford 2022).

The Petitioners assert that ongoing threats of poor ocean conditions and climate change are likely to threaten the continued existence of WC Chinook salmon, including spring-run populations. As described in NMFS' 5-year reviews (Stout et al., 2012; NMFS 2016; NMFS 2022) variability in ocean conditions in the Pacific Northwest is a concern for the persistence of WC salmon because it is uncertain how populations will fare in periods of poor ocean survival when freshwater and estuarine habitats are degraded. Petitioners also assert there are correlations between oceanic changes and salmon abundance in the Pacific Northwest, and concerns about how prolonged periods of poor marine survival due to unfavorable ocean conditions may impact the population abundance, productivity, spatial structure, and diversity of WC salmonids (Stout et al., 2010).

After reviewing the information contained in the petition, as well as information readily available in our files, we conclude that substantial scientific and commercial information indicates that the petitioned action to list spring-run Chinook salmon on the WC as threatened or endangered under the ESA or, alternatively, list the WC Chinook salmon ESU (inclusive of all run types) as a threatened or endangered species under the ESA may be warranted. Therefore, in accordance with section 4(b)(3)(A) of the ESA and NMFS' implementing regulations (50 CFR424.14(h)(2)), we will commence a status review of Chinook salmon on the WC. During our status review, we will include an ESU analysis to determine the appropriate ESU(s) and evaluate the ESU containing spring-run fish to determine if listing as a threatened or endangered species is warranted. As required by section 4(b)(3)(B) of the ESA, within 12 months of the receipt of the petition, we will make a finding as to whether listing WC Chinook salmon under the ESA is warranted.

To ensure that our status reviews are informed by the best available scientific and commercial data, we are opening a 60-day public comment period to solicit relevant new information since the 1998 status review (Myers et al., 1998) or information not considered before on populations of Chinook salmon within the previously identified WC Chinook salmon ESU, which consists of Chinook salmon that spawn north of the Columbia River and west of the Elwha River. We request information from the public, concerned governmental agencies, Native American tribes, the scientific community, agricultural and forestry groups, conservation groups, fishing groups, industry, or any other interested parties concerning the current and/or historical status of Chinook salmon on the WC. Specifically, we request information regarding: (1) species abundance; (2) species productivity; (3) species distribution or population spatial structure; (4) patterns of phenotypic, genotypic, and life history diversity; (5) habitat conditions and associated limiting factors and threats; (6) ongoing or planned efforts to protect and restore the species and their habitats; (7) information on the adequacy of existing regulatory mechanisms, whether protections are being implemented, and whether they are proving effective in conserving the species; (8) data concerning the status and trends of identified limiting factors or threats; (9) information on targeted harvest (commercial and recreational) and bycatch of the species; (10) other new information, data, or corrections including, but not limited to, taxonomic or nomenclatural changes; and (11) information concerning the impacts of environmental variability and climate change on survival, recruitment, distribution, and/or extinction risk; and traditional ecological knowledge related to any of the previous 11 categories of information regarding this species.

We request that all information be accompanied by: (1) supporting documentation such as maps, bibliographic references, or reprints of pertinent publications; and (2) the submitter's name, and any association, institution, or business that the person represents.

A complete list of all references cited herein is available upon request (See FOR FURTHER INFORMATION CONTACT ).

NMFS manages the GOA groundfish fisheries in the exclusive economic zone (EEZ) of the GOA under the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP). The Council prepared the FMP under the authority of the Magnuson-Stevens Act (16 U.S.C. 1801 et seq. ). Regulations governing U.S. fisheries and implementing the FMP appear at 50 CFR parts 600, 679, and 680.

The FMP and its implementing regulations require that NMFS, after consultation with the Council, specify the total allowable catch (TAC) for each target species, the sum of which must be within the optimum yield (OY) range of 116,000 to 800,000 metric tons (mt) (§§ 679.20(a)(1)(i)(B) and 679.20(a)(2)). Section 679.20(c)(1) further requires NMFS to publish and solicit public comment on proposed annual TACs and apportionments thereof for each target species, Pacific halibut prohibited species catch (PSC) limits, and seasonal allowances of pollock and Pacific cod. The proposed harvest specifications in tables 1 through 19 of this rule satisfy these requirements. For 2024 and 2025, the sum of the proposed TAC amounts is 476,537 mt.

Under § 679.20(c)(3), NMFS will publish the final 2024 and 2025 harvest specifications after (1) considering comments received within the comment period (see DATES ), (2) consulting with the Council at its December 2023 meeting, (3) considering information presented in the 2024 SIR to the Final EIS that assesses the need to prepare a Supplemental EIS (see ADDRESSES ), and (4) considering information presented in the final 2023 SAFE report prepared for the 2024 and 2025 groundfish fisheries.

NMFS published a final rule implementing Amendment 122 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (BSAI) (88 FR 53704, August 8, 2023), establishing the Pacific Cod Trawl Cooperative Program (PCTC Program) to allocate BSAI Pacific cod quota share to qualifying groundfish License Limitation Program (LLP) license holders and qualifying processors. The PCTC Program is a limited access privilege program for the harvest of Pacific cod in the BSAI trawl catcher vessel (CV) sector.

The PCTC Program modifies existing GOA sideboard limits and associated GOA halibut PSC limits for non-exempt American Fisheries Act (AFA) CVs and LLP license holders and closes directed fishing where the revised sideboard limits are too small to support a directed fishery. All GOA non-exempt AFA CVs and associated AFA LLP licenses are sideboarded in aggregate for all GOA groundfish fishing activity and for GOA halibut PSC based on their GOA catch history during the qualifying years 2009 through 2019, except when participating in the Central Gulf of Alaska (CGOA) Rockfish Program. In addition, the ratio used to apportion GOA halibut PSC limits is modified and the five seasonal apportionments based on that sideboard ratio is reduced to a single aggregate annual amount. Amendment 122 also closes directed fishing to all GOA non-exempt AFA CVs and LLP licenses for the following species categories: Southeast Outside (SEO) District of the Eastern GOA pollock, Western GOA shallow-water flatfish, Central and Eastern GOA deep-water flatfish, Central GOA dusky rockfish, and Eastern GOA and Central GOA Pacific ocean perch. NMFS will no longer publish AFA Program sideboard limits for these specific species or species groups in the Federal Register as part of the annual groundfish harvest specifications and instead Table 56 to 50 CFR part 679 lists that directed fishing for these species is prohibited to non-exempt AFA CVs. Amendment 122 and its implementing regulations affect the calculation and establishment of the groundfish sideboard limits and halibut PSC limits discussed below under American Fisheries Act (AFA) Catcher/Processor and Catcher Vessel Groundfish Harvest and PSC Limits.

In October 2023, the Council's Scientific and Statistical Committee (SSC), its Advisory Panel (AP), and the Council reviewed the most recent biological and harvest information about the condition of the GOA groundfish stocks. The Council's GOA Groundfish Plan Team (Plan Team) compiled and presented this information in the final 2022 SAFE report for the GOA groundfish fisheries, dated December 2022 (see ADDRESSES ). The SAFE report contains a review of the latest scientific analyses and estimates of each species' biomass and other biological parameters including possible future condition of the stocks, as well as summaries of the available information on the GOA ecosystem and the economic condition of the groundfish fisheries off Alaska. The SAFE provides information to the Council and NMFS for recommending and setting, respectively, annual harvest levels for each stock; documenting significant trends or changes in the resource, marine ecosystems, and fisheries over time; and assessing the relative success of existing Federal fishery management programs. An appendix to the SAFE is the Ecosystem Status Reports (ESRs). The ESRs compile and summarize information about the status of the Alaska marine ecosystems for the SSC, AP, Council, NMFS, and the public, and they are updated annually. These ESRs include ecosystem report cards, ecosystem assessments, and ecosystem status indicators ( i.e., climate indices, sea surface temperature), which together provide context for ecosystem-based fisheries management in Alaska. The ESR informs stock assessments and is integrated in the annual harvest recommendations through inclusion in stock assessment-specific risk tables. Also, the ESR information provides context for the SSC's recommendations for Overfishing Level (OFL) and ABC, as well as for the Council's TAC recommendations. The SAFE reports and the ESRs are presented at the October and December Council meetings before the SSC, AP, and the Council make groundfish harvest recommendations and aid NMFS in implementing these annual groundfish harvest specifications.

The Plan Team, SSC, and Council also reviewed preliminary survey data from 2023 surveys, updates on ecological and socioeconomic profiles for certain species, summaries of potential changes to models and methodologies, and preliminary revised ESRs. From these data and analyses, the Plan Team recommends, and the SSC sets, an OFL and ABC for each species and species group. The amounts proposed for the 2024 and 2025 OFLs and ABCs are based on the 2022 SAFE report. The AP and Council recommended that the proposed 2024 and 2025 TACs be set equal to proposed ABCs for all species and species groups, with the exception of the species and species groups further discussed below. The proposed OFLs, ABCs, and TACs could be changed in the final harvest specifications depending on the most recent scientific information contained in the final 2023 SAFE report. The individual stock assessments that comprise, in part, the 2022 SAFE report are available at https://www.fisheries.noaa.gov/alaska/population-assessments/north-pacific-groundfish-stock-assessment-and-fishery-evaluation. The final 2023 SAFE report will be available from the same source.

In November 2023, the Plan Team will update the 2022 SAFE report to include new information collected during 2023, such as NMFS stock surveys, revised stock assessments, and catch data. The Plan Team will compile this information and present the draft 2023 SAFE report at the December 2023 Council meeting. At that meeting, the SSC and the Council will review the 2023 SAFE report, and the Council will approve the 2023 SAFE report. The Council will consider information in the 2023 SAFE report, recommendations from the November 2023 Plan Team meeting and December 2023 SSC and AP meetings, public testimony, and relevant written public comments in making its recommendations for the final 2024 and 2025 harvest specifications. Pursuant to § 679.20(a)(2) and (3), the Council could recommend adjusting the final TACs, if warranted, based on the biological condition of groundfish stocks or a variety of socioeconomic considerations, or if required to cause the sum of TACs to fall within the OY range.

In previous years, the most significant changes (relative to the amount of assessed tonnage of fish) to the OFLs and ABCs from the proposed to the final harvest specifications have been based on the most recent NMFS stock surveys. These surveys provide updated estimates of stock biomass and spatial distribution, and inform changes to the models used for producing stock assessments. At the September 2023 Plan Team meeting, NMFS scientists presented updated and new survey results. Scientists also discussed potential changes to assessment models, and accompanying preliminary stock estimates. At the October 2023 Council meeting, the SSC reviewed this information. Species and species groups with proposed changes to assessment models include pollock, demersal shelf rockfish, other rockfish, and shortraker rockfish. Model changes may result in changes to final OFLs, ABCs, and TACs.

In November 2023, the Plan Team will consider updated survey results and updated stock assessments for groundfish, which will be included in the draft 2023 SAFE report. If the 2023 SAFE report indicates that the stock biomass trend is increasing for a species, then the final 2024 and 2025 harvest specifications for that species may reflect an increase from the proposed harvest specifications. Conversely, if the 2023 SAFE report indicates that the stock biomass trend is decreasing for a species, then the final 2024 and 2025 harvest specifications may reflect a decrease from the proposed harvest specifications.

The proposed 2024 and 2025 OFLs and ABCs are based on the best available biological and scientific information, including projected biomass trends, information on assumed distribution of stock biomass, and revised technical methods used to calculate stock biomass. The FMP specifies the tiers to be used to calculate OFLs and ABCs. The tier applicable to a particular stock or stock complex is determined by the level of reliable information available to the fisheries scientists. This information is categorized into a successive series of six tiers to define OFLs and ABCs, with Tier 1 representing the highest level of information quality available and Tier 6 representing the lowest level of information quality available. The Plan Team used the FMP tier structure to calculate OFLs and ABCs for each groundfish species. The SSC adopted the proposed 2024 and 2025 OFLs and ABCs recommended by the Plan Team for all groundfish species. The proposed 2024 and 2025 TACs are based on the best available biological and socioeconomic information. In making its recommendations, the Council adopted the SSC's OFL and ABC recommendations and the AP's TAC recommendations for all groundfish species.

The combined Western and Central Regulatory Areas and the West Yakutat (WYK) District of the Eastern Regulatory Area (the W/C/WYK) pollock TAC and the GOA Pacific cod TACs are set to account for the State of Alaska's (State) guideline harvest levels (GHL) for the State waters pollock and Pacific cod fisheries so that the ABCs are not exceeded. These reductions are described below. The shallow-water flatfish TAC in the Western RegulatoryArea, arrowtooth flounder TACs in the Western Regulatory Area and the SEO District, and flathead sole TAC in the Western Regulatory Area are set to allow for increased harvest opportunities for these target species while conserving the halibut PSC limit for use in other fisheries. The Atka mackerel TAC is set to accommodate incidental catch amounts (ICA) in other fisheries. The other rockfish TAC in the SEO District of the Eastern Regulatory Area is set to reduce the amount of discards of the species in that complex.

NMFS's proposed apportionments of groundfish species are based on the distribution of biomass among the regulatory areas over which NMFS manages the species. Additional regulations govern the apportionment of pollock, Pacific cod, and sablefish. Additional detail on apportionments of pollock, Pacific cod, and sablefish are described below.

The ABC for the pollock stock in the W/C/WYK Regulatory Area accounts for the GHL established by the State for the Prince William Sound (PWS) pollock fishery. The Plan Team, SSC, AP, and Council have recommended that the sum of all State waters and Federal waters pollock removals from the GOA not exceed ABC recommendations. At the November 2018 Plan Team meeting, State fisheries managers recommended setting the future PWS GHL at 2.5 percent of the annual W/C/WYK pollock ABC. For 2024 and 2025, this yields a PWS pollock GHL of 4,027 mt, an increase of 8.17 percent from the 2023 PWS GHL of 3,723 mt. After reductions for the PWS GHL, the remaining 2024 and 2025 pollock ABC for the combined W/C/WYK areas is then apportioned among four statistical areas (Areas 610, 620, 630, and 640) as both ABCs and TACs, as described below and detailed in table 1. The total ABCs and TACs for the four statistical areas, plus the State GHL, do not exceed the combined W/C/WYK ABC. The proposed W/C/WYK 2024 and 2025 pollock ABC is 161,080 mt, and the proposed TAC is 157,053 mt.

Apportionments of pollock to the W/C/WYK management areas are considered to be apportionments of annual catch limits (ACLs) rather than apportionments of ABCs. This more accurately reflects that such apportionments address management concerns, rather than biological or conservation concerns. In addition, apportionments of the ACL in this manner allow NMFS to balance any transfer of TAC among Areas 610, 620, and 630 pursuant to § 679.20(a)(5)(iv)(B) to ensure that the combined W/C/WYK ACL, ABC, and TAC are not exceeded.

NMFS proposes pollock TACs in the Western (Area 610) and Central (Areas 620 and 630) Regulatory Areas and the West Yakutat (Area 640) and the SEO (Area 650) Districts of the GOA (see table 1). NMFS also proposes seasonal apportionment of the annual pollock TAC in the Western and Central Regulatory Areas of the GOA among Statistical Areas 610, 620, and 630. These apportionments are divided equally among the following two seasons: the A season (January 20 through May 31) and the B season (September 1 through November 1) (§§ 679.23(d)(2) and 679.20(a)(5)(iv)). Additional detail is provided below; table 2 lists these amounts.

The proposed 2024 and 2025 Pacific cod TACs are set to accommodate the State's GHLs for Pacific cod in State waters in the Western and Central Regulatory Areas, as well as in PWS (in the Eastern Regulatory Area) (see table 1). The Plan Team, SSC, AP, and Council recommended that the sum of all State waters and Federal waters Pacific cod removals from the GOA not exceed ABC recommendations. Accordingly, the Council recommended the 2024 and 2025 Pacific cod TACs in the Western, Central, and Eastern Regulatory Areas to account for State GHLs. Therefore, the proposed 2024 and 2025 Pacific cod TACs are less than the proposed ABCs by the following amounts: (1) Western GOA, 2,062 mt; (2) Central GOA, 3,414 mt; and (3) Eastern GOA, 539 mt. These amounts reflect the State's 2024 and 2025 GHLs in these areas, which are 30 percent of the Western GOA proposed ABC, and 25 percent of the Eastern and Central GOA proposed ABCs.

The Western and Central GOA Pacific cod TACs are allocated among various gear and operational sectors. NMFS also establishes seasonal apportionments of the annual Pacific cod TACs in the Western and Central Regulatory Areas. The Pacific cod sector and seasonal apportionments are discussed in detail in a subsequent section and in table 4 of this rule.

The Council's recommendation for sablefish area apportionments takes into account the prohibition on the use of trawl gear in the SEO District of the Eastern Regulatory Area (§ 679.7(b)(1)) and makes available 5 percent of the Eastern Regulatory Area (WYK and SEO Districts combined) TAC to vessels using trawl gear for use as incidental catch in other trawl groundfish fisheries in the WYK District (§ 679.20(a)(4)(i)). Additional detail is provided below. tables 5 and 6 list the proposed 2024 and 2025 allocations of the sablefish TAC to fixed gear and trawl gear in the GOA.

For 2024 and 2025, the Council recommends, and NMFS proposes, the OFLs, ABCs, and TACs listed in table 1. These amounts are consistent with the biological condition of groundfish stocks as described in the 2022 SAFE report. The proposed ABCs reflect harvest amounts that are less than the specified overfishing levels. The proposed TACs are adjusted for other biological and socioeconomic considerations. The sum of the proposed TACs for all GOA groundfish is 476,537 mt for 2024 and 2025, which is within the OY range specified by the FMP. These proposed amounts and apportionments by area, season, and sector are subject to change pending consideration of the 2023 SAFE report, public comment, and the Council's recommendations for the final 2024 and 2025 harvest specifications during its December 2023 meeting.

Section 679.20(b)(2) requires NMFS to set aside 20 percent of each TAC for pollock, Pacific cod, flatfish, sharks, and octopuses in reserve for possible apportionment at a later date during the fishing year. Section 679.20(b)(3) authorizes NMFS to reapportion all or part of these reserves. In 2023, NMFS reapportioned all of the reserves in the final harvest specifications. For 2024 and 2025, NMFS proposes reapportionment of each of the reserves for pollock, Pacific cod, flatfish, sharks, and octopuses back into the original TAC from which the reserve was derived. NMFS expects, based on recent harvest patterns, that such reserves will not be necessary and that the entire TAC for each of these species will be caught or are needed to promote efficient fisheries. The TACs in table 1 reflect this proposed reapportionment of reserve amounts to the original TAC for these species and species groups, i.e., each proposed TAC for the above-mentioned species or species groups contains the full TAC recommended by the Council.

In the GOA, pollock is apportioned by season and area, and is further allocated for processing by inshore and offshore components. Pursuant to § 679.20(a)(5)(iv)(B), the annual pollock TAC specified for the Western and Central Regulatory Areas of the GOA is apportioned into two seasonal allowances of 50 percent. As established by § 679.23(d)(2), the A and B season allowances are available from January 20 through May 31 and September 1 through November 1, respectively.

The GOA pollock stock assessment continues to use a four-season methodology to determine pollock distribution in the Western and Central Regulatory Areas of the GOA to maintain continuity in the historical pollock apportionment time-series. Pollock TACs in the Western and Central Regulatory Areas of the GOA are apportioned among Statistical Areas 610, 620, and 630 in proportion to the distribution of pollock biomass determined by the most recent NMFS surveys, pursuant to § 679.20(a)(5)(iv)(A). The pollock chapter of the 2022 SAFE report (see ADDRESSES ) contains a comprehensive description of the apportionment and reasons for the minor changes from past apportionments. For purposes of specifying pollock between two seasons for the Western and Central Regulatory Areas of the GOA, NMFS has summed the A and B season apportionments and the C and D season apportionments as calculated in the 2022 GOA pollock assessment. This yields the seasonal amounts specified for the A season and the B season, respectively.

Within any fishing year, the amount by which a seasonal allowance is underharvested or overharvested may be added to, or subtracted from, subsequent seasonal allowances in a manner to be determined by the Regional Administrator (§ 679.20(a)(5)(iv)(B)). The rollover amount is limited to 20 percent of the subsequent seasonal TAC apportionment for the statistical area. Any unharvested pollock above the 20-percent limit could be further distributed to the subsequent season in the other statistical areas, in proportion to the estimated biomass of the subsequent season and in an amount no more than 20 percent of the seasonal TAC apportionment in those statistical areas (§ 679.20(a)(5)(iv)(B)). The proposed 2024 and 2025 pollock TACs in the WYK District of 8,136 mt and the SEO District of 11,363 mt are not allocated by season.

Table 2 lists the proposed 2024 and 2025 area apportionments and seasonal allowances of pollock in the Western and Central Regulatory Areas. The amounts of pollock for processing by the inshore and offshore components are not shown. Section 679.20(a)(6)(i) requires allocation of 100 percent of the pollock TAC in all regulatory areas and all seasonal allowances to vessels catching pollock for processing by the inshore component after subtraction of amounts projected by the Regional Administrator to be caught by, or delivered to, the offshore component incidental to directed fishing for other groundfish species. Thus, the amount of pollock available for harvest by vessels harvesting pollock for processing by the offshore component is the amount that will be taken as incidental catch during directed fishing for groundfish species other than pollock, up to the maximum retainable amounts allowed by § 679.20(e) and (f). At this time, these ICAs of pollock are unknown and will be determined during the fishing year during the course of fishing activities by the offshore component.

Pursuant to § 679.20(a)(12)(i), NMFS proposes allocations for the 2024 and 2025 Pacific cod TACs in the Western and Central Regulatory Areas of the GOA among gear and operational sectors. NMFS also proposes seasonal apportionments of the Pacific cod TACs in the Western and Central Regulatory Areas. A portion of the annual TAC is apportioned to the A season for hook-and-line, pot, and jig gear from January 1 through June 10, and for trawl gear from January 20 through June 10. The remainder of the annual TAC is apportioned to the B season for jig gear from June 10 through December 31, for hook-and-line and pot gear from September 1 through December 31, and for trawl gear from September 1 through November 1 (§§ 679.23(d)(3) and 679.20(a)(12)). NMFS also proposes allocating the 2024 and 2025 Pacific cod TACs annually between the inshore (90 percent) and offshore (10 percent) components in the Eastern Regulatory Area of the GOA (§ 679.20(a)(6)(ii)).

In the Western GOA, the Pacific cod TAC is apportioned seasonally first to vessels using jig gear, and then among CVs using hook-and-line gear, catcher/processors (CP) using hook-and-line gear, CVs using trawl gear, CPs using trawl gear, and vessels using pot gear (§ 679.20(a)(12)(i)(A)). In the Central GOA, the Pacific cod TAC is apportioned seasonally first to vessels using jig gear, and then among CVs less than 50 feet (15.2 meters (m)) in length overall using hook-and-line gear, CVs equal to or greater than 50 feet (15.2 m) in length overall using hook-and-line gear, CPs using hook-and-line gear, CVs using trawl gear, CPs using trawl gear, and vessels using pot gear (§ 679.20(a)(12)(i)(B)). For 2024 and 2025, NMFS proposes apportioning the jig sector allocations for the Western and Central GOA between the A season (60 percent) and the B season (40 percent) (§ 679.20(a)(12)(i)). Excluding seasonal apportionments to the jig gear sector, NMFS proposes apportioning the remainder of the annual Pacific cod TACs as follows: the seasonal apportionments of the annual TAC in the Western GOA are 63.84 percent to the A season and 36.16 percent to the B season, and in the Central GOA are 64.16 percent to the A season and 35.84 percent to the B season.

Under § 679.20(a)(12)(ii), any overage or underage of the Pacific cod allowance from the A season may be subtracted from, or added to, the subsequent B season allowance. In addition, any portion of the hook-and-line, trawl, pot, or jig sector allocations that is determined by NMFS as likely to go unharvested by a sector may be reallocated to other sectors for harvest during the remainder of the fishing year.

Pursuant to § 679.20(a)(12)(i)(A) and (B), a portion of the annual Pacific cod TACs in the Western and Central GOA will be allocated to vessels with a Federal fisheries permit that use jig gear before the TACs are apportioned among other non-jig sectors. In accordance with the FMP, the annual jig sector allocations may increase to up to 6 percent of the annual Western and Central GOA Pacific cod TACs, depending on the annual performance of the jig sector (see table 1 of Amendment 83 to the FMP for a detailed discussion of the jig sector allocation process (76 FR 74670, December 1, 2011)). Jig sector allocation increases are established for a minimum of 2 years.

NMFS has evaluated the historical harvest performance of the jig sector in the Western and Central GOA, and is proposing the 2024 and 2025 Pacific cod apportionments to this sector based on its historical harvest performance through 2022. For 2024 and 2025, NMFS proposes that the jig sector receive 2.5 percent of the annual Pacific cod TAC in the Western GOA. The 2024 and 2025 allocations consist of a base allocation of 1.5 percent of the Western GOA Pacific cod TAC and a harvest performance increase of 1.0 percent. For 2024 and 2025, NMFS also proposes that the jig sector receive 1.0 percent of the annual Pacific cod TAC in the Central GOA. The 2024 and 2025 allocations consist of a base allocation of 1.0 percent and no additional performance increases. The 2014 through 2023 Pacific cod jig allocations, catch, and percent allocation changes are listed in table 3 (and, as explained below, NMFS will update the 2023 summary once the fishing year is complete).

NMFS will re-evaluate the annual 2023 harvest performance of the jig sector in the Western and Central GOA when the 2023 fishing year is complete to determine whether to change the jig sector allocations proposed by this action in conjunction with the final 2024 and 2025 harvest specifications. The current catch through October 2023 by the Western and Central GOA jig sectors indicates that the Pacific cod allocation percentage to these sectors would each increase by 1 percent. Table 4 lists the seasonal apportionments and allocations of the proposed 2024 and 2025 Pacific cod TACs.

Section 679.20(a)(4)(i) and (ii) requires allocations of sablefish TACs for each of the regulatory areas and districts to fixed and trawl gear. In the Western and Central Regulatory Areas, 80 percent of each TAC is allocated to fixed gear, and 20 percent of each TAC is allocated to trawl gear. In the Eastern Regulatory Area, 95 percent of the TAC is allocated to fixed gear, and 5 percent is allocated to trawl gear. The trawl gear allocation in the Eastern Regulatory Area may be used only to support incidental catch of sablefish while directed fishing for other target species using trawl gear (§ 679.20(a)(4)(i)).

In recognition of the prohibition against trawl gear in the SEO District of the Eastern Regulatory Area, the Council recommended, and NMFS proposes, specifying for incidental catch the allocation of 5 percent of the Eastern Regulatory Area sablefish (WYK and SEO Districts combined) TAC to trawl gear in the WYK District of the Eastern Regulatory Area. The remainder of the WYK District sablefish TAC is allocated to vessels using fixed gear. This proposed action allocates 100 percent of the sablefish TAC in the SEO District to vessels using fixed gear. This results in proposed 2024 allocations of 383 mt to trawl gear and 2,287 mt to fixed gear in the WYK District, and a proposed 2024 allocation of 4,981 mt to fixed gear in the SEO District. table 5 lists the allocations of the proposed 2024 sablefish TACs to fixed and trawl gear. Table 6 lists the allocations of the proposed 2025 sablefish TACs to trawl gear.

The Council recommended that the trawl sablefish TAC be established for 2 years so that retention of incidental catch of sablefish by trawl gear could commence in January in the second year of the groundfish harvest specifications. Tables 5 and 6 list the proposed 2024 and 2025 trawl allocations, respectively.

The Council also recommended that the fixed gear sablefish TAC be established annually to ensure that the sablefish individual fishing quota (IFQ) fishery is conducted concurrently with the halibut IFQ fishery and is based on the most recent survey information. Since there is an annual assessment for sablefish and since the final harvest specifications are expected to be published before the IFQ season begins (typically, in early March), the Council recommended that the fixed gear sablefish TAC be set annually, rather than for 2 years. Accordingly, table 5 lists the proposed 2024 fixed gear allocations, and the 2025 fixed gear allocations will be specified in the 2025 and 2026 harvest specifications.

With the exception of the trawl allocations that are provided to the Rockfish Program (see Table 28c to 50 CFR part 679), directed fishing for sablefish with trawl gear is closed during the fishing year. Also, fishing for groundfish with trawl gear is prohibited prior to January 20 (§ 679.23(c)). Therefore, it is not likely that the sablefish allocation to trawl gear would be reached before the effective date of the final 2024 and 2025 harvest specifications.

These proposed 2024 and 2025 harvest specifications for the GOA include the fishery cooperative allocations and sideboard limitations established by the Rockfish Program. Program participants are primarily trawl CVs and trawl CPs, with limited participation by vessels using longline gear. The Rockfish Program assigns quota share and cooperative quota to trawl participants for primary species (Pacific ocean perch, northern rockfish, and dusky rockfish) and secondary species (Pacific cod, rougheye rockfish, sablefish, shortraker rockfish, and thornyhead rockfish), allows a participant holding a LLP license with rockfish quota share to form a rockfish cooperative with other persons, and allows holders of CP LLP licenses to opt out of the fishery. The Rockfish Program also has an entry level fishery for rockfish primary species for vessels using longline gear. Longline gear includes hook-and-line, jig, troll, and handline gear.

Under the Rockfish Program, rockfish primary species in the Central GOA are allocated to participants after deducting for incidental catch needs in other directed fisheries (§ 679.81(a)(2)). Participants in the Rockfish Program also receive a portion of the Central GOA TAC of specific secondary species. In addition to groundfish species, the Rockfish Program allocates a portion of the halibut PSC limit (191 mt) from the third season deep-water species fishery allowance for the GOA trawl fisheries to Rockfish Program participants (§ 679.81(d) and Table 28d to 50 CFR part 679). The Rockfish Program also establishes sideboard limits to restrict the ability of harvesters operating under the Rockfish Program to increase their participation in other, non-Rockfish Program fisheries. These restrictions and halibut PSC limits are discussed in the Rockfish Program Groundfish Sideboard and Halibut PSC Limitations section of this rule.

Section 679.81(a)(2)(ii) and Table 28e to 50 CFR part 679 require allocations of 5 mt of Pacific ocean perch, 5 mt of northern rockfish, and 50 mt of dusky rockfish to the entry level longline fishery in 2024 and 2025. The allocations of primary species to the entry level longline fishery may increase incrementally each year if the catch exceeds 90 percent of the allocation of a species. The incremental increase in the allocations would continue each year until reaching the maximum percentage of the TAC for that species. In 2023, the catch for all three primary species did not exceed 90 percent of any allocated rockfish species. Therefore, NMFS is not proposing any increases to the entry level longline fishery 2024 and 2025 allocations in the Central GOA. The remainder of the TACs for the rockfish primary species, after subtracting the ICAs, would be allocated to the CV and CP cooperatives (§ 679.81(a)(2)(iii)). Table 7 lists the allocations of the proposed 2024 and 2025 TACs for each rockfish primary species to the entry level longline fishery, the potential incremental increases for future years, and the maximum percentage allocations of the TACs of the rockfish primary species to the entry level longline fishery.

Section 679.81 requires allocations of rockfish primary species among various sectors of the Rockfish Program. Table 8 lists the proposed 2024 and 2025 allocations of rockfish primary species in the Central GOA to the entry level longline fishery and rockfish CV and CP cooperatives in the Rockfish Program. NMFS also proposes setting aside ICAs for other directed fisheries in the Central GOA of 3,000 mt of Pacific ocean perch, 300 mt of northern rockfish, and 250 mt of dusky rockfish. These amounts are based on recent average incidental catches in the Central GOA by other groundfish fisheries.

Allocations among vessels belonging to CV or CP cooperatives are not included in these proposed harvest specifications. Rockfish Program applications for CV cooperatives and CP cooperatives are not due to NMFS until March 1 of each calendar year; therefore, NMFS cannot calculate 2024 and 2025 allocations in conjunction with these proposed harvest specifications. NMFS will announce the 2024 allocations after March 1.

Section 679.81(c) and Table 28c to 50 CFR part 679 requires allocations of rockfish secondary species to CV and CP cooperatives in the Central GOA. CV cooperatives receive allocations of Pacific cod, sablefish from the trawl gear allocation, and thornyhead rockfish. CP cooperatives receive allocations of sablefish from the trawl gear allocation, rougheye and blackspotted rockfish, shortraker rockfish, and thornyhead rockfish. Table 9 lists the apportionments of the proposed 2024 and 2025 TACs of rockfish secondary species in the Central GOA to CV and CP cooperatives.

Section 679.21(d) establishes annual halibut PSC limit apportionments to trawl and hook-and-line gear, and authorizes the establishment of apportionments for pot gear. In October 2023, the Council recommended, and NMFS proposes, halibut PSC limits of 1,705 mt for trawl gear, 257 mt for hook-and-line gear, and 9 mt for the demersal shelf rockfish (DSR) fishery in the SEO District for both 2024 and 2025.

The DSR fishery in the SEO District is defined at § 679.21(d)(2)(ii)(A). This fishery is apportioned 9 mt of the halibut PSC limit in recognition of its small-scale harvests of groundfish (§ 679.21(d)(2)(i)(A)). The separate halibut PSC limit for the DSR fishery is intended to prevent that fishery from being impacted from the halibut PSC incurred by other GOA fisheries. NMFS estimates low halibut bycatch in the DSR fishery because (1) the duration of the DSR fisheries and the gear soak times are short; (2) the DSR fishery occurs in the winter when there is less overlap in the distribution of DSR and halibut; and (3) the directed commercial DSR fishery has a low DSR TAC. The Alaska Department of Fish and Game sets the commercial GHL for the DSR fishery after deducting (1) estimates of DSR incidental catch in all fisheries (including halibut and subsistence); and (2) the allocation to the DSR sport fish fishery. In 2023, the commercial fishery for DSR was closed due to concerns about declining DSR biomass.

The FMP authorizes the Council to exempt specific gear from the halibut PSC limits. NMFS, after consultation with the Council, proposes to exempt pot gear, jig gear, and the sablefish IFQ hook-and-line gear fishery categories from the non-trawl halibut PSC limit for 2024 and 2025. The Council recommended, and NMFS is proposing, these exemptions because (1) pot gear fisheries have low annual halibut bycatch mortality; (2) IFQ program regulations prohibit discard of halibut if any halibut IFQ permit holder on board a CV holds unused halibut IFQ for that vessel category and the IFQ regulatory area in which the vessel is operating (§ 679.7(f)(11)); (3) some sablefish IFQ permit holders hold halibut IFQ permits and are therefore required to retain the halibut they catch while fishing sablefish IFQ; and (4) NMFS estimates negligible halibut mortality for the jig gear fisheries given the small amount of groundfish harvested by jig gear, the selective nature of jig gear, and the high survival rates of halibut caught and released with jig gear.

The best available information on estimated halibut bycatch consists of data collected by fisheries observers during 2023. The calculated halibut bycatch mortality through November 8, 2023 is 292 mt for trawl gear and 23 mt for hook-and-line gear, for a total halibut mortality of 271 mt. This halibut mortality was calculated using groundfish and IFQ halibut catch data from the NMFS Alaska Region's catch accounting system. This accounting system contains historical and recent catch information compiled from each Alaska groundfish and IFQ halibut fishery.

Section 679.21(d)(4)(i) and (ii) authorizes NMFS to seasonally apportion the halibut PSC limits after consultation with the Council. The FMP and regulations require that the Council and NMFS consider the following information in seasonally apportioning halibut PSC limits: (1) seasonal distribution of halibut; (2) seasonal distribution of target groundfish species relative to halibut distribution; (3) expected halibut bycatch needs on a seasonal basis relative to changes in halibut biomass and expected catch of target groundfish species; (4) expected bycatch rates on a seasonal basis; (5) expected changes in directed groundfish fishing seasons; (6) expected actual start of fishing effort; and (7) economic effects of establishing seasonal halibut allocations on segments of the target groundfish industry. Based on public comment, information presented in the 2023 SAFE report, NMFS catch data, State catch data, and International Pacific Halibut Commission (IPHC) stock assessment and mortality data, the Council may recommend, or NMFS may make changes, to the seasonal, gear-type, or fishery category apportionments of halibut PSC limits for the final 2024 and 2025 harvest specifications pursuant to § 679.21(d)(1) and (d)(4).

The final 2023 and 2024 harvest specifications (88 FR 13238, March 2, 2023) list the Council and NMFS's seasonal apportionments based on these FMP and regulatory considerations with respect to halibut PSC limits. The Council and NMFS's seasonal apportionments for these proposed 2024 and 2025 harvest specifications are unchanged from the final 2023 and 2024 harvest specifications. Table 10 lists the proposed 2024 and 2025 Pacific halibut PSC limits, allowances, and apportionments. The halibut PSC limits in tables 10, 11, and 12 reflect the halibut PSC limits set forth at § 679.21(d)(2) and (3). Section 679.21(d)(4)(iii) and (iv) specifies that any underages or overages of a seasonal apportionment of a halibut PSC limit will be added to or deducted from the next respective seasonal apportionment within the fishing year.

Section 679.21(d)(3)(ii) authorizes further apportionment of the trawl halibut PSC limit as bycatch allowances to trawl fishery categories listed in § 679.21(d)(3)(iii). The annual apportionments are based on each category's share of the anticipated halibut bycatch mortality during a fishing year and optimization of the total amount of groundfish harvest under the halibut PSC limit. The fishery categories for the trawl halibut PSC limits are: (1) a deep-water species fishery, composed of sablefish, rockfish, deep-water flatfish, rex sole, and arrowtooth flounder; and (2) a shallow-water species fishery, composed of pollock, Pacific cod, shallow-water flatfish, flathead sole, Atka mackerel, skates, and “other species” (sharks and octopuses) (§ 679.21(d)(3)(iii)). Halibut mortality incurred while directed fishing for skates with trawl gear accrues towards the shallow-water species fishery halibut PSC limit (69 FR 26320, May 12, 2004).

NMFS will combine available trawl halibut PSC limit apportionments in part of the second season deep-water and shallow-water species fisheries for use in either fishery from May 15 through June 30 (§ 679.21(d)(4)(iii)(D)). This is intended to maintain groundfish harvest while minimizing halibut bycatch by these sectors to the extent practicable. This provides the trawl gear deep-water and shallow-water species fisheries additional flexibility and the incentive to participate in fisheries at times of the year that may have lower halibut PSC rates relative to other times of the year.

Table 11 lists the proposed 2024 and 2025 seasonal apportionments of trawl halibut PSC limits between the trawl gear deep-water and the shallow-water species fisheries.

Table 28d to 50 CFR part 679 specifies the amount of the trawl halibut PSC limit that is assigned to the CV and CP sectors that are participating in the Central GOA Rockfish Program. This includes 117 mt of halibut PSC limit to the CV sector and 74 mt of halibut PSC limit to the CP sector. These amounts are allocated from the trawl deep-water species fishery's halibut PSC third seasonal apportionment. After the combined CV and CP halibut PSC limit allocation of 191 mt to the Rockfish Program, 150 mt remains for the trawl deep-water species fishery's halibut PSC third seasonal apportionment.

Section 679.21(d)(4)(iii)(B) limits the amount of the halibut PSC limit allocated to Rockfish Program participants that could be re-apportioned to the general GOA trawl fisheries for the last seasonal apportionment during the current fishing year to no more than 55 percent of the unused annual halibut PSC limit apportioned to Rockfish Program participants. The remainder of the unused Rockfish Program halibut PSC limit is unavailable for use by any person for the remainder of the fishing year (§ 679.21(d)(4)(iii)(C)).

Section 679.21(d)(2)(i)(B) requires that the “other hook-and-line fishery” halibut PSC limit apportionment to vessels using hook-and-line gear must be apportioned between CVs and CPs in accordance with § 679.21(d)(2)(iii) in conjunction with these harvest specifications. A comprehensive description and example of the calculations necessary to apportion the “other hook-and-line fishery” halibut PSC limit between the hook-and-line CV and CP sectors were included in the proposed rule to implement Amendment 83 to the FMP (76 FR 44700, July 26, 2011) and are not repeated here.

Pursuant to § 679.21(d)(2)(iii), the hook-and-line halibut PSC limit for the “other hook-and-line fishery” is apportioned between the CV and CP sectors in proportion to the total Western and Central GOA Pacific cod allocations, which vary annually based on the proportion of the Pacific cod biomass between the Western, Central, and Eastern GOA. Pacific cod is apportioned among these three management areas based on the percentage of overall biomass per area, as calculated in the 2022 Pacific cod stock assessment. Updated information in the final 2022 SAFE report describes this distributional calculation, which allocates ABC among GOA regulatory areas on the basis of the three most recent stock surveys. For 2024 and 2025, the proposed distribution of the total GOA Pacific cod ABC is 30.3 percent to the Western GOA, 60.2 percent to the Central GOA, and 9.5 percent to the Eastern GOA. Therefore, the calculations made in accordance with § 679.21(d)(2)(iii) incorporate the most recent information on GOA Pacific cod distribution and allocations with respect to the proposed annual halibut PSC limits for the CV and CP hook-and-line sectors. Additionally, the annual halibut PSC limits for both the CV and CP sectors of the “other hook-and-line fishery” are proposed to be divided into three seasonal apportionments, using seasonal percentages of 86 percent, 2 percent, and 12 percent.

For 2024 and 2025, NMFS proposes annual halibut PSC limits of 150 mt and 107 mt to the hook-and-line CV and hook-and-line CP sectors, respectively. Table 12 lists the proposed 2024 and 2025 apportionments of halibut PSC limits between the hook-and-line CV and the hook-and-line CP sectors of the “other hook-and-line fishery.”

No later than November 1 of each year, NMFS will calculate the projected unused amount of halibut PSC limit by either of the CV or CP hook-and-line sectors of the “other hook-and-line fishery” for the remainder of the year. The projected unused amount of halibut PSC limit is made available to the other hook-and-line sector for the remainder of that fishing year (§ 679.21(d)(2)(iii)(C)), if NMFS determines that an additional amount of halibut PSC is necessary for that sector to continue its directed fishing operations.

To monitor halibut bycatch mortality allowances and apportionments, the Regional Administrator uses observed halibut incidental catch rates, halibut discard mortality rates (DMR), and estimates of groundfish catch to project when a fishery's halibut bycatch mortality allowance or seasonal apportionment is reached. Halibut incidental catch rates are based on observed estimates of halibut incidental catch in the groundfish fishery. DMRs are estimates of the proportion of incidentally caught halibut that do not survive after being returned to the sea. The cumulative halibut mortality that accrues to a particular halibut PSC limit is the product of a DMR multiplied by the estimated halibut PSC. DMRs are estimated using the best scientific information available in conjunction with the annual GOA stock assessment process. The DMR methodology and findings are included as an appendix to the annual GOA groundfish SAFE report.

In 2016, the DMR estimation methodology underwent revisions per the Council's directive. An interagency halibut working group (IPHC, Council, and NMFS staff) developed improved estimation methods that have undergone review by the Plan Team, the SSC, and the Council. A summary of the revised methodology is contained in the GOA proposed 2017 and 2018 harvest specifications (81 FR 87881, December 6, 2016), and the comprehensive discussion of the working group's statistical methodology is available from the Council (see ADDRESSES ). The DMR working group's revised methodology is intended to improve estimation accuracy, transparency, and transferability for calculating DMRs. The working group will continue to consider improvements to the methodology used to calculate halibut mortality, including potential changes to the reference period (the period of data used for calculating the DMRs). Future DMRs may change based on additional years of observer sampling, which could provide more recent and accurate data and which could improve the accuracy of estimation and progress on methodology. The methodology will continue to ensure that NMFS is using DMRs that more accurately reflect halibut mortality, which will inform the different sectors of their estimated halibut mortality and allow specific sectors to respond with methods that could reduce mortality and, eventually, the DMR for that sector.

In October 2023, the Council recommended halibut DMRs reviewed by the Plan Team and SSC, which are derived from the revised methodology. The proposed 2024 and 2025 DMRs use an updated 2-year and 4-year reference period depending data availability. Consistent with the Council's intent, NMFS is proposing the DMRs recommended by the Plan Team and reviewed by the SSC for the proposed 2024 and 2025 DMRs. Comparing the proposed 2024 and 2025 DMRs to the final DMRs from the final 2023 and 2024 harvest specifications, the proposed DMR for Rockfish Program CVs using non-pelagic trawl gear increased to 56 percent from 55 percent, the proposed DMR for non-Rockfish Program CVs using non-pelagic trawl gear decreased to 69 percent from 74 percent, the proposed DMR for CPs using hook-and-line gear decreased to 11 percent from 13 percent, the proposed DMR for CVs using hook-and-line gear increased to 10 percent from 9 percent, and the proposed DMR for CPs and CVs using pot gear decreased to 26 percent from 27 percent. For pelagic trawl gear CVs and CPs, and non-pelagic trawl gear mothership and CPs, the DMRs remained the same. Table 13 lists the proposed 2024 and 2025 DMRs.

Section 679.21(h)(2) establishes separate Chinook salmon PSC limits in the Western and Central regulatory areas of the GOA in the trawl pollock directed fishery. These limits require that NMFS close directed fishing for pollock in the Western and Central GOA if the applicable Chinook salmon PSC limit is reached (§ 679.21(h)(8)). The annual Chinook salmon PSC limits in the trawl pollock directed fishery of 6,684 salmon in the Western GOA and 18,316 salmon in the Central GOA are set in § 679.21(h)(2)(i) and (ii).

Section 679.21(h)(3) and (4) established an initial annual PSC limit of 7,500 Chinook salmon for the non-pollock groundfish trawl fisheries in the Western and Central GOA. This limit is apportioned among the three sectors that conduct directed fishing for groundfish species other than pollock: 3,600 Chinook salmon to trawl CPs; 1,200 Chinook salmon to trawl CVs participating in the Rockfish Program; and 2,700 Chinook salmon to trawl CVs not participating in the Rockfish Program (§ 679.21(h)(4)). NMFS will monitor the Chinook salmon PSC in the trawl non-pollock GOA groundfish fisheries and close an applicable sector if it reaches its Chinook salmon PSC limit.

The Chinook salmon PSC limit for two sectors, trawl CPs and trawl CVs not participating in the Rockfish Program, may be increased in subsequent years based on the performance of these two sectors and their ability to minimize their use of their respective Chinook salmon PSC limits. If either or both of these two sectors limit its use of Chinook salmon PSC to a certain threshold amount in 2023 (3,120 for trawl CPs and 2,340 for non-Rockfish Program trawl CVs), that sector will receive an incremental increase to its 2024 Chinook salmon PSC limit (4,080 for trawl CPs and 3,060 for non-Rockfish Program trawl CVs) (§ 679.21(h)(4)). NMFS will evaluate the annual Chinook salmon PSC by trawl CPs and non-Rockfish Program trawl CVs when the 2023 fishing year is complete to determine whether to increase the Chinook salmon PSC limits for these two sectors. Based on preliminary 2023 Chinook salmon PSC data, the trawl CP sector may receive an incremental increase of Chinook salmon PSC limit in 2024, and the non-Rockfish Program trawl CV sector may receive an incremental increase of Chinook salmon PSC limit in 2024. This evaluation will be completed in conjunction with the final 2024 and 2025 harvest specifications.

Section 679.64 establishes groundfish harvesting and processing sideboard limits on AFA CPs and CVs in the GOA. These sideboard limits are necessary to protect the interests of fishermen and processors who do not directly benefit from the AFA from those fishermen and processors who receive exclusive harvesting and processing privileges under the AFA. Section 679.7(k)(1)(ii) prohibits listed AFA CPs and CPs designated on a listed AFA CP permit from harvesting any species of fish in the GOA. Additionally, § 679.7(k)(1)(iv) prohibits listed AFA CPs and CPs designated on a listed AFA CP permit from processing any pollock harvested in a directed pollock fishery in the GOA and any groundfish harvested in Statistical Area 630 of the GOA.

AFA CVs that are less than 125 feet (38.1 meters) length overall, have annual landings of pollock in the Bering Sea and Aleutian Islands of less than 5,100 mt, and have made at least 40 landings of GOA groundfish from 1995 through 1997 are exempt from GOA CV groundfish sideboard limits under § 679.64(b)(2)(ii). Sideboard limits for non-exempt AFA CVs in the GOA are based on their traditional harvest levels of TAC in groundfish fisheries covered by the FMP. Section 679.64(b)(3)(iv) establishes the CV groundfish sideboard limits in the GOA based on the aggregate retained catch by non-exempt AFA CVs of each sideboard species from 2009 through 2019 divided by the TAC for that species available to catcher vessels from 2009 through 2019. Under the PCTC Program, NMFS modified the calculation of the sideboard ratios for non-exempt AFA CVs, using the qualifying years of 2009 through 2019 (88 FR 53704, August 8, 2023). Previously, sideboard limits were based on the ratio of catch to the TAC during the years 1995 through 1997.

NMFS published a final rule (84 FR 2723, February 8, 2019) that implemented regulations to prohibit non-exempt AFA CVs from directed fishing for specific groundfish species or species groups subject to sideboard limits (§ 679.20(d)(1)(iv)(D) and Table 56 to 50 CFR part 679). Under the PCTC Program, NMFS also promulgated regulations to prohibit non-exempt AFA CVs from directed fishing for additional groundfish species or species groups subject to sideboard limits (88 FR 53704, August 8, 2023). All of these prohibitions are found in the revised Table 56 to 50 CFR part 679. Sideboard limits not subject to these final rules continue to be calculated and included in the GOA annual harvest specifications.

Table 14 lists the proposed 2024 and 2025 groundfish sideboard limits for non-exempt AFA CVs. NMFS will deduct all targeted or incidental catch of sideboard species made by non-exempt AFA CVs from the sideboard limits listed in table 14.

The non-exempt AFA catcher vessels and the associated LLP licenses PSC limit for halibut in the GOA will be an annual amount based on a static ratio of 0.072, which was derived from the aggregate retained groundfish catch by non-exempt AFA CVs in each PSC target category from 2009 through 2019 (§ 679.64(b)(4)(ii)). This change was implemented with the PCTC Program (88 FR 53704, August 8, 2023). Prior to the publication of these proposed harvest specifications, the halibut PSC sideboard limits for non-exempt AFA CVs in the GOA were based on the aggregate retained groundfish catch by non-exempt AFA CVs in each PSC target category from 1995 through 1997 divided by the retained catch of all vessels in that fishery from 1995 through 1997. Table 15 lists the proposed 2024 and 2025 non-exempt AFA CV halibut PSC sideboard limits for vessels using trawl gear in the GOA.

Section 680.22 establishes groundfish sideboard limits for vessels with a history of participation in the Bering Sea snow crab fishery to prevent these vessels from using the increased flexibility provided by the Crab Rationalization (CR) Program to expand their level of participation in the GOA groundfish fisheries. Sideboard harvest limits restrict these vessels' catch to their collective historical landings in each GOA groundfish fishery (except the fixed-gear sablefish fishery). Sideboard limits also apply to landings made using an LLP license derived from the history of a restricted vessel, even if that LLP license is used on another vessel.

The basis for these sideboard harvest limits is described in detail in the final rules implementing the major provisions of the CR Program, including Amendments 18 and 19 to the Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner Crabs (Crab FMP) (70 FR 10174, March 2, 2005), Amendment 34 to the Crab FMP (76 FR 35772, June 20, 2011), Amendment 83 to the GOA FMP (76 FR 74670, December 1, 2011), and Amendment 45 to the Crab FMP (80 FR 28539, May 19, 2015). Also, NMFS published a final rule (84 FR 2723, February 8, 2019) that implemented regulations to prohibit non-AFA crab vessels from directed fishing for all groundfish species or species groups subject to sideboard limits, except for Pacific cod apportioned to CVs using pot gear in the Western and Central Regulatory Areas (§ 680.22(e)(1)(iii)). Accordingly, the GOA annual harvest specifications include only the non- AFA crab vessel groundfish sideboard limits for Pacific cod apportioned to CVs using pot gear in the Western and Central Regulatory Areas.

Table 16 lists the proposed 2024 and 2025 groundfish sideboard limits for non-AFA crab vessels. All targeted or incidental catch of sideboard species made by non-AFA crab vessels or associated LLP licenses will be deducted from these sideboard limits.

The Rockfish Program establishes three classes of sideboard provisions: CV groundfish sideboard restrictions, CP rockfish sideboard restrictions, and CP opt-out vessel sideboard restrictions (§ 679.82(c)(1)). These sideboards are intended to limit the ability of rockfish harvesters to expand into other fisheries.

CVs participating in the Rockfish Program may not participate in directed fishing for dusky rockfish, Pacific ocean perch, and northern rockfish in the Western GOA and West Yakutat District from July 1 through July 31. Also, CVs may not participate in directed fishing for arrowtooth flounder, deep-water flatfish, and rex sole in the GOA from July 1 through July 31 (§ 679.82(d)).

Prior to 2021, CPs participating in Rockfish Program cooperatives were restricted by rockfish sideboard limits in the Western GOA. A final rule that implemented Amendment 111 to the FMP (86 FR 11895, March 1, 2021) removed Western GOA rockfish sideboard limits for Rockfish Program CPs from regulation. That rule also revised and clarified the establishment of West Yakutat District rockfish sideboard ratios in regulation, rather than specifying the West Yakutat District rockfish sideboard ratios in the annual GOA harvest specifications.

CPs participating in Rockfish Program cooperatives are restricted by rockfish and halibut PSC sideboard limits. These CPs are prohibited from directed fishing for dusky rockfish, Pacific ocean perch, and northern rockfish in the Western GOA and West Yakutat District from July 1 through July 31 (§ 679.82(e)(2)). The sideboard ratio for each rockfish fishery in the West Yakutat District is set forth in § 679.82(e)(4). The rockfish sideboard ratio for each rockfish fishery in the West Yakutat District is an established percentage of the TAC for catcher/processors in the directed fishery for dusky rockfish and Pacific ocean perch. These percentages are confidential. Holders of CP-designated LLP licenses that opt out of participating in a Rockfish Program cooperative will be able to access that portion of each rockfish sideboard limits that is not assigned to Rockfish Program cooperatives (§ 679.82(e)(7)).

Under the Rockfish Program, the CP sector is subject to halibut PSC sideboard limits for the trawl deep-water and shallow-water species fisheries from July 1 through July 31 (§ 679.82(e)(3) and (e)(5)). Halibut PSC sideboard ratios by fishery are set forth in § 679.82(e)(5). No halibut PSC sideboard limits apply to the CV sector, as vessels participating in a rockfish cooperative receive a portion of the annual halibut PSC limit. CPs that opt out of the Rockfish Program would be able to access that portion of the deep-water and shallow-water halibut PSC sideboard limit not assigned to CP rockfish cooperatives. The sideboard provisions for CPs that elect to opt out of participating in a rockfish cooperative are described in § 679.82(c), (e), and (f). Sideboard limits are linked to the catch history of specific vessels that may choose to opt out. After March 1, NMFS will determine which CPs have opted-out of the Rockfish Program in 2024, and will know the ratios and amounts used to calculate opt-out sideboard ratios. NMFS will then calculate any applicable opt-out sideboard limits for 2024 and announce these limits after March 1. Table 17 lists the proposed 2024 and 2025 Rockfish Program halibut PSC sideboard limits for the CP sector.