This action, pursuant to 5 U.S.C. 553, amends regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This rulemaking is issued under Marketing Agreement No. 125 and Marketing Order No. 966, as amended (7 CFR part 966), regulating the handling of tomatoes grown in Florida. Part 966 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 Committee locally administers the Order and is comprised of producers of fresh tomatoes operating within the area of production.

The Agricultural Marketing Service (AMS) is issuing this rulemaking 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.

This rulemaking 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. AMS has determined that this rulemaking 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 rulemaking has been reviewed under Executive Order 12988—Civil Justice Reform. Under the Order now in effect, Florida tomato handlers are subject to assessments. Funds to administer the Order are derived from such assessments. It is intended that the assessment rate will be applicable to all assessable tomatoes for the 2023-2024 fiscal period, and continue until amended, suspended, or terminated.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 8c(15)(A) of the Act (7 U.S.C. 608c(15)(A)), any handler subject to an order may file with the U.S. Department of Agriculture (USDA) a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such 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.

This rulemaking increases the assessment rate for Florida tomatoes handled under the Order from $0.025 per 25-pound container or equivalent, the rate established for the 2017-2018 and subsequent fiscal periods, to a rate of $0.035 per 25-pound container or equivalent for the 2023-2024 and subsequent fiscal periods.

Sections 966.41 and 966.42 authorize the Committee, with the approval of AMS, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members are familiar with the Committee's needs and with the costs of goods and services in their local area and are able to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting, and all directly affected persons have an opportunity to participate and provide input.

For the 2017-2018 and subsequent fiscal periods, the Committee recommended, and AMS approved, an assessment rate of $0.025 per 25-pound container or equivalent of Florida tomatoes within the production area. That rate continues in effect from fiscal period to fiscal period until modified, suspended, or terminated by AMS upon recommendation and information submitted by the Committee or other information available to AMS.

The Committee met on September 20, 2023, and unanimously recommended 2023-2024 fiscal period expenditures of $1,155,764 and an assessment rate of $0.035 per 25-pound container or equivalent of Florida tomatoes handled for the 2023-2024 and subsequent fiscal periods. In comparison, last fiscal period's budgeted expenditures were $1,156,773. The assessment rate of $0.035 per 25-pound container or equivalent is $0.01 higher than the rate currently in effect. The Committee has used financial reserves in previous seasons to help pay for budgeted expenses. Increasing the assessment rate will allow the Committee to replenish and maintain their financial reserves at the desired level of $250,000. The Committee projects handler receipts of approximately 22,000,000 25-pound containers or equivalent of assessable Florida tomatoes for the 2023-2024 fiscal period, an increase from the 21,815,350 containers handled for the 2022-2023 fiscal period.

The major expenditures recommended by the Committee for the 2023-2024 fiscal period include $350,000 for research; $340,000 for education and promotions; and $277,393 for management and staff. By comparison, budgeted expenses for these items during the 2022-2023 fiscal period were $350,000; $330,000; and $274,105, respectively.

At the current assessment rate of $0.025, the expected 22,000,000 25-pound containers or equivalent of assessable Florida tomatoes would generate $550,000 in assessment revenue (22,000,000 multiplied by $0.025 assessment rate). By increasing the assessment rate by $0.01 to $0.035, assessment income should generate $770,000 in assessment revenue (22,000,000 multiplied by $0.035 assessment rate) for the 2023-2024 fiscal period. This amount should be appropriate to ensure the Committee has sufficient revenue, along with an anticipated $265,501 in funds awarded through the Foreign Agricultural Service Market Access Program and $129,071 in other income, to fully fund its recommended 2023-2024 fiscal period budgeted expenditures, while maintaining financial reserves at around $250,000.

The Committee derived the recommended assessment rate by considering anticipated fiscal period expenses, expected shipments of Florida tomatoes, anticipated grant funds, and the amount of funds available in financial reserve. Income derived from handler assessments ($770,000), Foreign Agricultural Service Market Access Program grants ($265,501), and other sources including administrative and interest income ($129,071), should be adequate to cover budgeted expenses ($1,155,764). Funds available in the financial reserve (currently about $241,000) will be kept within the maximum permitted by the Order (approximately one fiscal period's expenses as authorized in § 966.44).

The assessment rate will continue in effect indefinitely unless modified, suspended, or terminated by AMS upon recommendation and information submitted by the Committee or other available information.

Although this assessment rate will be in effect for an indefinite period, the Committee will continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or AMS. Committee meetings are open to the public and interested persons may express their views at these meetings. AMS will evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The Committee's 2023-2024 fiscal period budget, and those for subsequent fiscal periods, will be reviewed and, as appropriate, approved by AMS.

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

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

There are 38 handlers of Florida tomatoes subject to regulation under the Order and approximately 50 producers of Florida tomatoes in the production area. At the time this analysis was prepared, the Small Business Administration (SBA) defined small agricultural producers of tomatoes as those having annual receipts of less than $3,500,000 (NAICS code 111339, Other Non-citrus Fruit Farming), and small agricultural service firms as those whose annual receipts are less than $34,000,000 (NAICS code 115114, Postharvest Crop Activities) (13 CFR 121.201).

According to data from the AMS Market News Tomato Fax Report, the average price for fresh Florida tomatoes for the 2022-2023 season was approximately $21.94 per 25-pound container, with total shipments of around 21,815,350 25-pound containers. Based on the average terminal market price and shipment information, the number of handlers, and assuming a normal distribution, the majority of tomato handlers have estimated average annual receipts of significantly less than $34,000,000 ($21.94 multiplied by 21,815,350 containers equals $478,628,779, divided by 38 handlers equals $12,595,494 per handler).

In addition, based on data from the National Agricultural Statistics Service (NASS), the average price producers received for fresh Florida tomatoes at the point of first sale during the 2022-2023 season was approximately $11.08 per 25-pound container, with total shipments of around 21,815,350 containers. Using the average price producers received and shipment information, the number of producers, and assuming a normal distribution, the majority of producers have estimated average annual receipts greater than $3.5 million ($11.08 multiplied by 21,815,350 containers equals $241,714,078, divided by 50 producers equals $4,834,282 per producer). Thus, a majority of producers of Florida tomatoes may be classified as large entities, while a majority of handlers may be classified as small entities.

This rulemaking will increase the assessment rate collected from handlers for the 2023-2024 and subsequent fiscal periods from $0.025 to $0.035 per 25-pound container or equivalent of Florida tomatoes. The Committee unanimously recommended 2023-2024 fiscal period expenditures of $1,155,764 and an assessment rate of $0.035 per 25-pound container or equivalent of Florida tomatoes. The assessment rate of $0.035 is $0.01 higher than the current rate. The Committee expects industry to handle 22,000,000 25-pound containers or equivalent of Florida tomatoes during the 2023-2024 fiscal period. Thus, the $0.035 rate per 25-pound container or equivalent should provide $770,000 in assessment income (22,000,000 containers multiplied by $0.035). The Committee expects to use an anticipated $265,501 in funds awarded through the Foreign Agricultural Service Market Access Program and $129,071 in other sources to cover remaining expenses. Income derived from handler assessments, Foreign Agricultural Service Market Access Program grants, and other sources including member fees and interest income, should be adequate to cover budgeted expenses.

The major expenditures recommended by the Committee for the 2023-2024 fiscal period include $350,000 for research; $340,000 for education and promotions; and $277,393 for management and staff. By comparison, budgeted expenses for these items during the 2022-2023 fiscal period were $350,000; $330,000; and $274,105, respectively.

The Committee unanimously recommended increasing the assessment rate after drawing down financial reserves in previous seasons. The Committee desires to maintain a financial reserve of around $250,000, and without increasing the assessment rate, the Committee will not be able to maintain financial reserves at this level. The Committee estimates production for the 2023-2024 fiscal period to be 22,000,000 25-pound containers or equivalent of Florida tomatoes. At the current assessment rate, assessment income should equal $550,000 (22,000,000 containers multiplied by $0.025). By increasing the assessment rate by $0.01, assessment income should be $770,000 (22,000,000 containers multiplied by $0.035). This amount, along with Foreign Agricultural Service Market Access Program grants, and other income, should provide sufficient funds to meet anticipated 2023-2024 fiscal period expenses, while maintaining financial reserves at around $250,000.

Prior to arriving at this budget and assessment rate, the Committee considered maintaining the current assessment rate of $0.025. However, the Committee would need to further draw down reserves to meet its expenses. The Committee members did not want to utilize additional funds from reserves to meet 2023-2024 fiscal period expenses. Consequently, the alternative of maintaining the current assessment rate was rejected.

A review of historical and preliminary information pertaining to the upcoming fiscal period indicates the average grower price for the 2023-2024 season should be approximately $11.00 per 25-pound container of tomatoes or equivalent. Therefore, the estimated assessment revenue for the 2023-2024 crop year as a percentage of total grower revenue should be about 0.32 percent ($0.035 divided by $11.00 multiplied by 100).

This action increases the assessment obligation imposed on Florida tomato handlers. Assessments are applied uniformly on all handlers, and some of the costs may be passed on to producers. However, these costs are expected to be offset by the benefits derived from the operation of the Order.

The Committee's meetings are widely publicized throughout the Florida tomato industry and all interested persons are invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the September 20, 2023, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons were invited to submit comments on this rulemaking, including the regulatory and informational impacts of this action on small businesses.

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. 0581-0178 Vegetable and Specialty Crops. No changes in those requirements would be necessary as a result of this rulemaking. Should any changes become necessary, they would be submitted to OMB for approval.

This rulemaking will not impose any additional reporting or recordkeeping requirements on either small or large Florida tomato handlers. 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.

AMS 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.

AMS has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rulemaking.

A proposed rule concerning this action was published in the Federal Register on March 7, 2024 (89 FR 16471). Copies of the proposed rule were provided to all Florida tomato handlers. The proposal was also made available through the internet by USDA and the Office of the Federal Register. A 30-day comment period ending April 8, 2024, was provided for interested persons to respond to the proposal. AMS received three comments during the comment period. Two commentors supported the action and one commenter did not address the merits of the proposed rule. Accordingly, AMS made no changes to the rule as proposed.

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.

After consideration of all relevant material presented, including the information and recommendations submitted by the Committee and other available information, AMS has determined that this rulemaking is consistent with and will effectuate the purposes of the Act.

For the reasons set forth in the preamble, the Agricultural Marketing Service amends 7 CFR part 966 as follows:

In 2010, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act). Section 1071 of that Act  1 amended the Equal Credit Opportunity Act (ECOA)  2 to require that financial institutions collect and report to the CFPB certain data regarding applications for credit for women-owned, minority-owned, and small businesses. Section 1071's statutory purposes are to (1) facilitate enforcement of fair lending laws, and (2) enable communities, governmental entities, and creditors to identify business and community development needs and opportunities of women-owned, minority-owned, and small businesses.

Section 1071 directs the CFPB to prescribe such rules and issue such guidance as may be necessary to carry out, enforce, and compile data pursuant to section 1071. On March 30, 2023, the CFPB issued a final rule to implement section 1071 by adding subpart B to Regulation B (2023 final rule). The 2023 final rule was published in the Federal Register on May 31, 2023. 3 Further details about section 1071 and this rulemaking can be found in the preamble to the 2023 final rule.

Subsequently, some lenders filed challenges to the 2023 final rule in the United States District Court for the Southern District of Texas. 4 On July 31, 2023, the court issued an order  5 that preliminarily enjoined the CFPB from implementing and enforcing the 2023 final rule against plaintiffs and their members pending the Supreme Court's reversal of Community Financial Services Association of America, Ltd. v. CFPB, 51 F.4th 616 (5th Cir. 2022), cert. granted, 143 S. Ct. 978 (2023) ( CFSA ), a trial on the merits, or until further court order. The court's order also stayed all deadlines for compliance with the requirements of the 2023 final rule for plaintiffs and their members pending the outcome of the Supreme Court case. The Texas court ordered that, in the event of a reversal in the Supreme Court case, the CFPB extend plaintiffs' and their members' deadlines for compliance with the 2023 final rule to compensate for the period stayed. Following motions to intervene by a number of other parties, on October 26, 2023, the Texas court extended the terms of its order to all covered financial institutions ( i.e., issued a nationwide stay). 6

On May 16, 2024, the Supreme Court reversed the Fifth Circuit's ruling in CFSA. 7

In this interim final rule, the CFPB is extending the compliance dates set forth in the 2023 final rule and making conforming adjustments. Consistent with existing court orders, the compliance dates are being extended 290 days to compensate for the period the rule was stayed (July 31, 2023 to May 16, 2024). Thus, covered financial institutions must begin collecting data as follows:

Covered financial institutions are permitted to continue using their small business originations from 2022 and 2023 to determine their compliance tier, or they may use their originations from 2023 and 2024. Covered financial institutions are permitted to begin collecting protected demographic data required under the 2023 final rule 12 months before their new compliance date, in order to test their procedures and systems. As illustrated above, the deadline for submitting small business lending data will remain June 1 following the calendar year for which data are collected. Finally, the CFPB is updating its grace period policy statement to reflect the revised compliance dates.

The CFPB seeks comment on this interim final rule.

The CFPB adopted the 2023 final rule pursuant to its authority under section 1071, which directs the CFPB to adopt rules governing the collection and reporting of small business lending data. Some aspects of the 2023 final rule were also adopted under the CFPB's more general rulemaking authorities in ECOA. The CFPB's legal authorities are discussed in detail in the 2023 final rule. 8

The CFPB is adopting this interim final rule to extend the 2023 final rule's compliance dates. ECOA section 704B(g)(1) grants the CFPB general rulemaking authority for section 1071.

The Administrative Procedure Act (APA) does not require notice and opportunity for public comment if an agency for good cause finds that notice and public comment are impracticable, unnecessary, or contrary to the public interest. 9 The CFPB finds that prior notice and public comment are unnecessary because this interim final rule implements a court's order to extend the 2023 final rule's compliance dates and makes other date-related conforming adjustments. Covered financial institutions need to know the new compliance dates promptly so they can resume implementation efforts; further delay in finalizing those dates would be contrary to the public interest. The CFPB already solicited and received comment on the substance of the provisions that it is now amending, both during its 2020 consultation with representatives of small businesses pursuant to the Small Business Regulatory Enforcement Fairness Act  10 and in its 2021 proposed rule. 11

As discussed above, the court in Texas Bankers Association v. CFPB directed the CFPB to extend the compliance dates set forth in the 2023 final rule to compensate for the period the rule was stayed pending the Supreme Court's decision in CFSA. To facilitate compliance across all covered financial institutions, the CFPB is using July 31, 2023 as the base date to calculate the length of the compliance date extension for all covered financial institutions, including the initial plaintiffs and their members as well as the intervening parties. The CFPB is extending the 2023 final rule's compliance dates by 290 days ( i.e., the number of days that elapsed between the court's July 31, 2023 order and the Supreme Court's decision in CFSA on May 16, 2024).

The 2023 final rule's compliance dates are set forth in § 1002.114(b). That section looks to a financial institution's volume of covered credit transactions for small businesses in each of calendar years 2022 and 2023 to determine the applicable compliance date. The 2023 final rule provided that covered financial institutions that originated at least 2,500 covered transactions in both years were required to comply with the requirements of the 2023 final rule beginning October 1, 2024 (sometimes referred to as Tier 1 institutions). Covered financial institutions not in Tier 1 that originated at least 500 covered transactions in both years were required to comply beginning April 1, 2025 (Tier 2), and covered financial institutions not in Tier 1 or Tier 2 that originated at least 100 covered transactions in both years were required to comply beginning January 1, 2026 (Tier 3). The 2023 final rule also provided that a financial institution that did not originate at least 100 covered transactions in both 2022 and 2023 but that subsequently originates at least 100 such transactions in two consecutive calendar years must comply with the rule in accordance with § 1002.105(b), but in any case no earlier than January 1, 2026.

In this interim final rule, the CFPB is extending each of the compliance dates set forth in § 1002.114(b) by 290 days. Thus, Tier 1 institutions now have a compliance date of July 18, 2025, Tier 2 institutions now have a compliance date of January 16, 2026, and Tier 3 institutions now have a compliance date of October 18, 2026. Likewise, institutions that did not originate at least 100 covered transactions in 2022 and 2023 but subsequently do in two consecutive calendar years are not required to comply with the rule until October 18, 2026 at the earliest. The CFPB is making corresponding updates throughout the commentary accompanying § 1002.114(b), which provide additional guidance and examples regarding compliance dates. The CFPB is also revising comments 105(b)-2 and -6 and 109(b)-1, which involve examples of data collection occurring in years affected by the extended compliance dates in this interim final rule.

Section 1002.114(c) addresses several transitional issues. Section 1002.114(c)(1) permits financial institutions to collect protected demographic information required under the 2023 final rule from small business applicants beginning 12 months prior to its compliance date. As this provision does not list any compliance dates specifically, no revisions are needed. Thus, a Tier 1 institution is permitted to begin collecting protected demographic information on or after July 18, 2024; a Tier 2 institution may begin on or after January 16, 2025; and a Tier 3 institution may begin on or after October 18, 2025, in order to test their procedures and systems for compiling and maintaining this information in advance of actually being required to collect and subsequently report it to the CFPB. 12

The CFPB is adopting new § 1002.114(c)(3), which permits (but does not require) a financial institution to use its originations of covered credit transactions in each of calendar years 2023 and 2024, rather than those in 2022 and 2023, to determine its compliance date. Financial institutions may use whichever set of dates they prefer ( i.e., 2022 and 2023, or 2023 and 2024). Existing comment 114(b)-4 provides examples illustrating how a financial institution uses its originations in 2022 and 2023 to determine its compliance tier; new comment 114(b)-4.viii illustrates using 2023 and 2024 originations to determine compliance tier.

Section 1002.114(c)(2) provides that a financial institution that is unable to determine the number of covered credit transactions it originated in 2022 and 2023 for purposes of determining its compliance tier is permitted to use any reasonable method to estimate its originations to small businesses for either or both of 2022 and 2023. Existing comment 114(c)-5 lists several reasonable methods a financial institution may use to estimate its originations.

Pursuant to new § 1002.114(c)(3), which permits a financial institution to use its originations of covered credit transactions in each of calendar years 2023 and 2024 to determine its compliance date, financial institutions are likewise permitted to use any reasonable method to estimate their originations for either or both of 2023 and 2024. The CFPB is revising comment 114(c)-5 to make this clear and adding new comment 114(c)-6.vii to provide an example.

Section 1002.109(a)(1) provides that covered financial institutions must submit their small business lending application registers to the CFPB on or before June 1 following the calendar year for which the data are compiled and maintained. As this provision does not list any compliance dates specifically, no revisions are needed. Thus, Tier 1 institutions will make their first data submission by June 1, 2026; Tier 2 and Tier 3 by June 1, 2027.

The CFPB is adopting an effective date of 30 days after the publication of this interim final rule in the Federal Register consistent with section 553(d) of the Administrative Procedure Act. 13

In the 2023 final rule, the CFPB adopted a 12-month grace period during which the CFPB—for covered financial institutions under its supervisory and enforcement jurisdiction—would not intend to assess penalties for errors in data reporting, and would intend to conduct examinations only to diagnose compliance weaknesses, to the extent that these institutions engaged in good faith compliance efforts. The Grace Period Policy Statement set forth in the 2023 final rule explained the CFPB's reasons for adopting such a grace period along with how the CFPB intended to implement such a grace period. 14 The CFPB is updating this policy statement to reflect the new compliance dates set forth in this interim final rule. 15

The following discussion explains how the CFPB intends to exercise its supervisory and enforcement discretion for the first 12 months of data collected after a covered financial institution's initial compliance date.

With respect to covered financial institutions subject to the CFPB's supervisory or enforcement jurisdiction that make good faith efforts to comply with the 2023 final rule, the CFPB intends to provide a grace period to reflect the new compliance dates as follows:

As discussed in the 2023 final rule, the CFPB believes that a 12-month grace period for each compliance tier will give institutions time to diagnose and address unintentional errors without the prospect of penalties for inadvertent compliance issues, and may ultimately assist other covered financial institutions, especially those in later compliance tiers, in identifying best practices. While the CFPB anticipates that financial institutions in each compliance tier are capable of fully preparing to comply with the 2023 final rule by their respective new compliance dates, it views this grace period as enabling deliberate and thoughtful compliance with the rule, while still providing important data regarding small business lending as soon as practical.

During the grace period, if the CFPB identifies errors in a financial institution's initial data submissions, it does not intend to require data resubmission unless data errors are material. Further, the CFPB does not intend to assess penalties with respect to unintentional and good faith errors in the initial data submissions. Any examinations of these initial data submissions will be diagnostic and will help to identify compliance weaknesses. However, errors that are not the result of good faith compliance efforts by financial institutions, especially attempts to discourage applicants from providing data, will remain subject to the CFPB's full supervisory and enforcement authority, including the assessment of penalties.

The CFPB believes that the grace period covering the initial data submissions will provide financial institutions an opportunity to identify any gaps in their implementation of the 2023 final rule and make improvements in their compliance management systems for future data submissions. In addition, a grace period will permit the CFPB to help financial institutions identify errors and, thereby, self-correct to avoid such errors in the future. The CFPB can also use data collected during the grace period to alert financial institutions of common errors and potential best practices in data collection and submissions under this rule.

In developing the interim final rule, the CFPB has considered the potential benefits, costs, and impacts as required by section 1022(b)(2) of the Consumer Financial Protection Act of 2010 (CFPA). 16 Section 1022(b)(2) calls for the CFPB to consider the potential benefits and costs of a regulation to consumers and covered persons, including the potential reduction of consumer access to consumer financial products or services, the impact on depository institutions and credit unions with $10 billion or less in total assets as described in section 1026 of the CFPA, and the impact on consumers in rural areas. In addition, section 1022(b)(2)(B) directs the CFPB to consult with appropriate prudential regulators or other Federal agencies, regarding consistency with the objectives those agencies administer. The CFPB has accordingly consulted with the appropriate prudential regulators and other Federal agencies regarding consistency with any prudential, market, or systemic objectives administered by these agencies.

In this interim final rule, the CFPB is extending by 290 days the compliance dates set forth in the 2023 small business lending rule and making several conforming adjustments. Thus, covered financial institutions with the highest volume of small business originations (Tier 1) must begin collecting data by July 18, 2025; moderate-volume institutions (Tier 2) by January 16, 2026; and the smallest volume institutions (Tier 3) by October 18, 2026. Covered financial institutions are permitted to continue using their small business originations from 2022 and 2023 to determine their compliance tier, or instead they may use their originations from 2023 and 2024.

The CFPB expects covered institutions to benefit from the extension of the compliance dates, but expects that the impacts of this interim final rule on covered institutions are small relative to the overall impacts of the 2023 final rule it modifies. The CFPB additionally expects this interim final rule to have minimal impacts on small businesses, due to the long-term nature of the benefits of the 2023 final rule and an expectation that the 2023 final rule will have a limited effect on the cost of small business credit.

The discussion below relies on information the CFPB has obtained from industry, other regulatory agencies, and publicly available sources. The CFPB provides estimates, to the extent possible, of the potential benefits, costs, and impacts to consumers and covered persons of this interim final rule given available data.

To estimate the number of depository institutions covered by the interim final rule, the CFPB relies in part on data from publicly available sources, such as the Federal Financial Institutions Examination Council's Reports on Condition of Income (Call Reports), the National Credit Union Administration's Call Reports, and data reported under the Community Reinvestment Act. As described in detail in part IX.E of the 2023 final rule, information on the cost of compliance is derived from the CFPB's previous Home Mortgage Disclosure Act rulemaking activities and a One-time Cost Survey the CFPB administered in 2020 as part of its small business lending rule development process.

There are limitations, such as limited comprehensive data on non-depository institutions potentially subject to the 2023 final rule and thus this interim final rule, and limited data on which to quantify benefits of the interim final rule with precision. The CFPB supplements the data sources described above with general economic principles and the CFPB's expertise in consumer financial markets. The CFPB qualitatively describes potential benefits, costs, and impacts where the ability to provide quantitative estimates are impacted by these limitations.

In evaluating the potential benefits, costs, and impacts of the interim final rule, the CFPB takes as a baseline Regulation B as amended by the 2023 final rule. Part IV above describes in detail the provisions of the 2023 final rule. The CFPB's analysis of the potential costs, benefits, and impacts of this interim final rule are relative to the original compliance dates and other requirements of the 2023 final rule.

Based on the methodology used to determine coverage in the 2023 final rule, 17 the CFPB expects about 100 financial institutions to be required to report in Tier 1, about 450 to be required to report in Tier 2, and about 2,000 to be required to report in Tier 3.

By extending the compliance dates by 290 days for all covered institutions, financial institutions will benefit by the delay in the expected costs of compliance with the 2023 final rule. The benefit from the compliance date extension will differ depending on whether the cost was expected to be “one-time” or “ongoing.” Part IX.E of the 2023 final rule described two categories of cost that the CFPB expected covered financial institutions to incur. “One-time” costs refer to expenses that the financial institution will incur initially and only once to implement changes required to comply with the requirements of the rule. “Ongoing” costs are expenses incurred because of the ongoing reporting requirements of the rule, accrued on an annual basis.

The CFPB expects covered institutions to experience an annual ongoing cost of compliance in perpetuity. Therefore, extending the compliance dates by 290 days potentially saves financial institutions up to 290 days in expected annual compliance costs. In the 2023 rule, the CFPB detailed its methodology and estimates of this annual ongoing cost for institutions of different levels of complexity in their processes for collecting, checking, and reporting data on applications for small business credit. These “types” were Type A (least complex), Type B (medium complexity), and Type C (most complex) and were related to small business credit application volume. The 2023 final rule gave estimates of compliance costs for representative institutions of each type as well as the market-level estimate for all complying institutions.

The CFPB estimated that, per application for small business credit, Type A institutions would incur $83 in annual ongoing costs, Type B institutions would incur $100, and Type C institutions would incur $46. Based on the CFPB's estimates of application volumes for all institutions, the expected market level annual ongoing cost was between $310 and $330 million for depository institutions and $62.3 million for non-depository institutions. The CFPB expects covered financial institutions to avoid 290 days of ongoing costs due to the compliance date extension. Institutions will effectively receive this benefit at the time they would have originally been required to start collecting data. Thus, Tier 3 institutions will receive this benefit farther in the future than Tier 2 institutions, who will receive the benefit farther in the future than Tier 1 institutions. In present value terms, Tier 1 institutions will see a proportionally larger benefit compared to baseline, relative to Tier 2 and Tier 3 institutions.

This interim final rule does not change the nominal value of the one-time costs that will be incurred by covered institutions but does potentially delay the realization of those costs up to 290 days into the future for institutions in each compliance tier. Thus, the new one-time costs are the baseline one-time costs discounted by 290 days. The present value of the benefit associated with the interim final rule's impact on one-time costs is the difference between the baseline one-time costs and the new discounted costs.

The CFPB additionally expects that the compliance date extension and the associated flexibility in years of origination data that can be used to determine coverage would confer a benefit to covered institutions with the additional time to prepare for compliance relative to the baseline.

With the extension of the compliance dates by 290 days, this interim final rule delays the realization of these potential benefits to covered financial institutions. As enumerated in the 2023 final rule, benefits include more efficient fair lending review prioritization by regulators and the institutions' own use of small business lending data to better understand small business credit demand and the supply by their competitors.

As with the 2023 final rule, this interim final rule will not directly impact consumers, as that term is defined by the Dodd-Frank Act. Some consumers will be impacted in their separate capacity as sole owners of small businesses covered by the rule. The CFPB has elected to consider the costs to small businesses from this interim final rule as it did in the 2023 final rule.

In part IX.F of the 2023 final rule, the CFPB described how small businesses would benefit from the impact of the rule on the enforcement of fair lending laws and on community development. In an environment with limited data sources on small business credit, the CFPB expects data collected under the rule to enable communities, governmental entities, and creditors to identify business and community development needs and opportunities for women-owned, minority-owned, and small businesses. The CFPB also expects data collected under the 2023 final rule to facilitate fair lending enforcement by Federal, State, and local enforcement agencies. Due to limitations on data and methodology, the CFPB mostly described these benefits qualitatively.

To the extent small businesses benefit in the above ways from the 2023 final rule, the extension of the compliance dates reduces the benefits accruing to small businesses by delaying the realization of these benefits. While compliance dates are extended by 290 days, Tier 1 financial institutions will be required to file data one year later than expected under the 2023 final rule ( i.e., by June 1, 2026 rather than June 1, 2025). The CFPB expects that the benefits of the original rule will primarily begin with the publication of the data. Thus, small businesses' and financial institutions' realizations of the benefits arising from the 2023 final rule will likewise be delayed by at least one year, reducing the real net present value of these expected future benefits. The CFPB is unable to readily quantify the costs associated with delaying future benefits because the CFPB does not have the data to quantify all the benefits of the 2023 final rule.

The 2023 final rule also described that the CFPB expects financial institutions to pass on a portion of their annual ongoing costs to small business borrowers in the form of higher rates or fees. While, in general, the CFPB expects the magnitude of any pass-through to be a small portion of the total cost of the average loan to a small business applicant, extended compliance dates could benefit small business borrowers by delaying these increased costs.

The differences in the impacts of this interim final rule between different types of small businesses is likely to be small with only 290 days added to each of the compliance dates. Most of the distribution of benefits and costs are likely to be derived from whether small businesses are serviced by lenders in different compliance tiers and the difference in present discounted values.

Using the methodology described in the 2023 final rule, the CFPB estimates that between 1,700 and 1,900 banks, savings associations, and credit unions with $10 billion or less in total assets will be affected by this interim final rule. The CFPB believes that the impacts of the interim final rule on these small depository institutions will be similar to those impacts on covered financial institutions as a whole, discussed above. These institutions would incur benefits from up to 290 fewer days in annual ongoing costs and the postponement of up to 290 days of one-time costs. They would also potentially benefit from additional time to develop software and other resources used to comply with the 2023 final rule.

The CFPB does not expect this interim final rule to have a significant impact on small businesses' access to credit. In the 2023 final rule, the CFPB described how the likeliest effect of the rule on access to credit would be a small increase in interest rates or fees. This interim final rule shifts this potential effect by 290 days without any additional provisions that would affect credit access.

In part IX.H of the final rule, the CFPB described how existing data sources limited its ability to precisely estimate the number of financial institutions who serve rural areas who are covered under the 2023 final rule. The CFPB expects that 65 to 70 percent of rural bank and savings associations branches and 14 percent of rural credit union branches would be affected by the interim final rule using this methodology.

Small businesses in rural areas are expected to experience similar costs and benefits of small businesses more broadly. Small businesses in rural areas would experience a reduction in benefits via a postponement of the benefits of the 2023 final rule on fair lending enforcement and community development. These small businesses would also experience a benefit by the postponement of expected small increases in interest rates and fees.

The Regulatory Flexibility Act does not require an initial or final regulatory flexibility analysis in a rulemaking where a general notice of proposed rulemaking is not required. 18 As discussed in part III above, the CFPB has determined that prior notice and comment is unnecessary for this interim final rule. As an additional basis, the CFPB's Director certifies that this interim final rule will not have a significant economic impact on a substantial number of small entities, and so an initial or final regulatory flexibility analysis is also not required for that reason. 19 The rule will not impose significant costs on creditors, including small entities, for the reasons described in the section 1022(b) analysis in part VII above.

Under the Paperwork Reduction Act of 1995 (PRA), Federal agencies are generally required to seek approval from the Office of Management and Budget (OMB) for information collection requirements prior to implementation. Under the PRA, the CFPB may not conduct or sponsor, and, notwithstanding any other provision of law, a person is not required to respond to an information collection unless the information collection displays a valid control number assigned by OMB. The interim final rule amends 12 CFR part 1002 (Regulation B), which implements the small business lending rule. The CFPB's OMB control number for Regulation B is 3170-0013; its current expiration date is August 31, 2025.

The interim final rule does not add to or change the collection requirements of the 2023 final rule; rather, it only changes the initial compliance dates, pursuant to court orders, and makes other date-related conforming adjustments. The CFPB has therefore determined that the interim final rule does not contain any new or substantively revised information collection requirements as defined by the PRA.

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), the CFPB will submit a report containing this interim 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 prior to the interim final rule taking effect. The Office of Information and Regulatory Affairs has designated this interim final rule as not a “major rule” as defined by 5 U.S.C. 804(2).

For the reasons set forth in the preamble, the CFPB amends Regulation B, 12 CFR part 1002, as follows:

The Entity List (supplement no. 4 to part 744 of the EAR (15 CFR parts 730 through 774)) identifies entities for which there is reasonable cause to believe, based on specific and articulable facts, that the entities have been involved, are involved, or pose a significant risk of being or becoming involved in activities contrary to the national security or foreign policy interests of the United States, pursuant to § 744.11(b). The EAR impose additional license requirements on, and limit the availability of, most license exceptions for exports, reexports, and transfers (in-country) when a listed entity is a party to the transaction. The license review policy for each listed entity is identified in the “License Review Policy” column on the Entity List, and the impact on the availability of license exceptions is described in the relevant Federal Register document that added the entity to the Entity List. BIS places entities on the Entity List pursuant to parts 744 (Control Policy: End-User and End-Use Based) and 746 (Embargoes and Other Special Controls) of the EAR.

The End-User Review Committee (ERC), composed of representatives of the Departments of Commerce (Chair), State, Defense, Energy and, where appropriate, the Treasury, makes all decisions regarding additions to, removals from, or other modifications to the Entity List. The ERC makes all decisions to add an entry to the Entity List by majority vote and makes all decisions to remove or modify an entry by unanimous vote.

The ERC determined to add Global Training Solutions Limited and Smartech Future Limited, both under the destination of China, Grace Air (Pty) Ltd. under the destination of South Africa, and Livingston Aerospace Ltd., under the destination of the United Kingdom, to the Entity List. These entities are listed because of their links to the Test Flying Academy of South Africa (TFASA) and the training of China's military forces using Western and North Atlantic Treaty Organization (NATO) sources. TFASA was added to the Entity List on June 12, 2023 (88 FR 38739, June 14, 2023). This activity is contrary to the national security and foreign policy interests of the United States under § 744.11 of the EAR.

The ERC determined to add two entities, Mega Fast Cargo LLC, and Mega Technique General Trading, both under the destination of the UAE, to the Entity List. These additions are being made because these entities repeatedly engaged in dilatory or evasive conduct, including the provision of false, misleading, or incomplete information, during end-use checks. In addition, Mega Fast Cargo LLC has engaged in shipments of U.S.-origin commodities to Russia since Russia's further invasion of Ukraine in February 2022. This activity is contrary to U.S. national security and foreign policy interests under § 744.11 of the EAR.

For these six entities, BIS imposes a license requirement for all items subject to the EAR and will review license applications under a presumption of denial. For the reasons described above, this final rule adds the following six entities, including aliases where appropriate, to the Entity List:

• Global Training Solutions Limited; and

• Smartech Future Limited.

• Grace Air (Pty) Ltd.

• Mega Fast Cargo LLC; and

• Mega Technique General Trading.

• Livingston Aerospace Ltd.

This final rule implements the decision of the ERC to modify two existing entries on the Entity List. Specifically, the ERC determined to add three aliases to the entity Tenco Technology Company Ltd., under the destination of China, for a total of seven aliases. In addition, the ERC determined to revise the entry for Systems of Biological Synthesis LLC, under the destination of Russia, by adding one address for a total of two addresses.

For the changes being made in this final rule, shipments of items removed from eligibility for a License Exception or export, reexport, or transfer (in-country) without a license (NLR) as a result of this regulatory action that were en route aboard a carrier to a port of export, reexport, or transfer (in-country), on July 3, 2024, pursuant to actual orders for export, reexport, or transfer (in-country) to or within a foreign destination, may proceed to that destination under the previous eligibility for a License Exception or export, reexport, or transfer (in-country) without a license (NLR) before August 2, 2024. Any such items not actually exported, reexported or transferred (in-country) before midnight, on August 2, 2024, require a license in accordance with this final rule.

On August 13, 2018, the President signed into law the John S. McCain National Defense Authorization Act for Fiscal Year 2019, which included the Export Control Reform Act of 2018 (ECRA) (50 U.S.C. 4801-4852). ECRA provides the legal basis for BIS's principal authorities and serves as the authority under which BIS issues this rule.

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

2. Notwithstanding any other provision of law, no person is required to respond to or be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This regulation involves an information collection approved by OMB under control number 0694-0088, Simplified Network Application Processing System. BIS does not anticipate a change to the burden hours associated with this collection as a result of this rule. Information regarding the collection, including all supporting materials, can be accessed at https://www.reginfo.gov/public/do/PRAMain.

3. This rule does not contain policies with federalism implications as that term is defined in Executive Order 13132.

4. Pursuant to section 1762 of the Export Control Reform Act of 2018, this action is exempt from the Administrative Procedure Act (5 U.S.C. 553) requirements for notice of proposed rulemaking, opportunity for public participation, and delay in effective date.

5. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., are not applicable. Accordingly, no regulatory flexibility analysis is required, and none has been prepared.

Accordingly, part 744 of the Export Administration Regulations (15 CFR parts 730 through 774) is amended as follows:

The UVL, found in supplement no. 6 to part 744 of the EAR (15 CFR parts 730-774), contains the names and addresses of foreign persons who are or have been parties to a transaction, as described in § 748.5 of the EAR, involving the export, reexport, or transfer (in-country) of items subject to the EAR. These foreign persons are added to the UVL because BIS or Federal officials acting on BIS's behalf were unable to verify their bona fides ( i.e., legitimacy and reliability relating to the end use and end user of items subject to the EAR) through the completion of an end-use check. Sometimes these checks, such as a pre-license check (PLC) or a post-shipment verification (PSV), cannot be completed satisfactorily for reasons outside the U.S. Government's control.

There are a number of reasons why end-use checks cannot be completed to the satisfaction of the U.S. Government. The reasons include, but are not limited to: (1) reasons unrelated to the cooperation of the foreign party subject to the end-use check ( e.g., BIS sometimes initiates end-use checks, but is unable to complete them because the foreign party cannot be found at the address indicated on the associated export documents and BIS cannot contact the party by telephone or email); (2) reasons related to a lack of cooperation by a host government that fails to schedule and facilitate the completion of an end-use check ( e.g., a host government agencies' lack of response to requests to conduct end-use checks, actions preventing the scheduling of such checks, or refusals to schedule checks in a timely manner); or (3) when, during the end-use check, a recipient of items subject to the EAR is unable to produce the items that are the subject of the end-use check for visual inspection or provide sufficient documentation or other evidence to confirm the disposition of the items.

BIS's inability to confirm the bona fides of foreign persons subject to end-use checks raises concerns about the suitability of such persons as participants in future exports, reexports, or transfers (in-country) of items subject to the EAR; the inability to confirm a foreign person's bona fides also indicates a risk that items subject to the EAR may be diverted to prohibited end uses and/or end users. Under such circumstances, there may not be sufficient information to add the foreign person at issue to the Entity List (supplement no. 4 to part 744 of the EAR) under § 744.11 of the EAR. Therefore, BIS may add the foreign person to the UVL.

As provided in § 740.2(a)(17) of the EAR, the use of license exceptions for exports, reexports, and transfers (in-country) involving a party or parties to the transaction who are listed on the UVL is suspended. Additionally, under § 744.15(b) of the EAR, there is a requirement for exporters, re-exporters, and transferors to obtain, and maintain a record of, a UVL statement from a party or parties to the transaction who are listed on the UVL before proceeding with exports, reexports, and transfers (in-country) to such persons, when the exports, reexports and transfers (in-country) are not subject to a license requirement. Finally, pursuant to § 758.1(b)(8), Electronic Export Information (EEI) must be filed in the Automated Export System (AES) for all exports of tangible items subject to the EAR in which parties to the transaction, as described in § 748.5(d) through (f), are listed on the UVL.

Requests for the removal of a UVL entry must be made in accordance with § 744.15(d) of the EAR. Decisions regarding the removal or modification of UVL entry will be made by the Deputy Assistant Secretary for Export Enforcement, based on a demonstration by the listed person of their bona fides. As provided in § 744.15(c)(2) of the EAR, BIS will remove a person from the UVL when BIS is able to verify the bona fides of the listed person.

This rule adds 13 persons to the UVL by amending supplement no. 6 to part 744 of the EAR to include their names and addresses. BIS is adding these persons pursuant to § 744.15(c) of the EAR. This final rule implements the decision to add the following 13 persons to the UVL: Avant Science Co., Ltd.; Bada Group Hong Kong Corporation, Limited; Hongkong Delta Electronics Technology Co., Limited; Hongxin Technology Limited; Lihang Technology Co., Ltd.; Shenzhen Mingxinyuan Co., Ltd.; Shenzhen Xianhexin Electronics Co., Ltd.; and Xi'An Aerotek Co., Ltd. under the destination of China; Mirsystems Ltd. under the destination of Cyprus; Inerto LLC under the destination of Kyrgyzstan; AUK Group and ER Transport Uluslararasi Tasimacilik Limited Sirketi under the destination of Türkiye; and Navio Shipping LLC under the destination of the UAE.

This rule removes seven persons from the UVL because BIS was able to verify their bona fides. This rule removes the following seven persons located in the following destinations from the UVL: Fulian Precision Electronics (Tianjin) Co., Ltd.; Nanning Fulian Fu Gui Precision Co., Ltd.; Guangzhou Trusme Electronics Technology Co., Ltd.; Guangzhou Xinyun Intelligent Technology Co., Ltd.; Shenzhen Jia Li Chuang Tech Development Co., Ltd.; and Xi'An Yierda Co., Ltd. under the destination of China; and Aero King FZC under the destination of the UAE. BIS is removing these persons pursuant to § 744.15(c)(2) of the EAR. This rule also makes a conforming change to remove one person under the destination of Russia from the UVL on the basis of that person's addition to the Entity List. On February 23, 2024, in the final rule “Additions of Entities to the Entity List” (89 FR 14385 February 27, 2024), BIS added “EFO Company Limited Liability Company” a.k.a. the following three aliases:—OOO EFO;—EFO Ltd.; and —EFO LLC., under the destination of Russia to the Entity List. Therefore, this rule removes “EFO Ltd.”, under the destination of Russia, from the UVL.

Given the removal of all entries all under the destination of Russia, this final rule removes the destination of Russia from the UVL. This final rule also changes the name of Turkey to Türkiye in the UVL, which impacts the name of the destination and the five entries within that destination. BIS makes this change to conform to the U.S. State Department's recognition on January 9, 2023, of Türkiye's official name.

On August 13, 2018, the President signed into law the John S. McCain National Defense Authorization Act for Fiscal Year 2019, which included the Export Control Reform Act of 2018 (ECRA), 50 U.S.C. 4801-4852. ECRA provides the legal basis for BIS's principal authorities and serves as the authority under which BIS issues this final rule.

Shipments (1) that are removed from license exception eligibility or that are now subject to requirements in § 744.15 of the EAR as a result of this regulatory action; (2) that were eligible for export, reexport, or transfer (in-country) without a license before this regulatory action; and (3) that were on dock for loading, on lighter, laden aboard an exporting carrier, or enroute aboard a carrier to a port of export, on July 3, 2024, pursuant to actual orders, may proceed to that UVL listed person under the previous license exception eligibility or without a license and pursuant to the export clearance requirements set forth in part 758 of the EAR that applied prior to this person being listed on the UVL, so long as the items have been exported from the United States, reexported or transferred (in-country) before August 2, 2024. Any such items not actually exported, reexported or transferred (in-country) before midnight on August 2, 2024 are subject to the requirements in § 744.15 of the EAR in accordance with this rule.

Executive Orders 13563 and 12866 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, distribute impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This final rule is not a “significant regulatory action” under Executive Order 12866.

This rule does not contain policies with Federalism implications as that term is defined under Executive Order 13132.

Notwithstanding any other provision of law, no person is required to respond to, nor is subject to a penalty for failure to comply with, a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number.

The UVL additions contain collections of information approved by OMB under the following control numbers:

• OMB Control Number 0694-0088—Simple Network Application Process and Multipurpose Application Form,

• OMB Control Number 0694-0122—Miscellaneous Licensing Responsibilities and Enforcement,

• OMB Control Number 0694-0134—Entity List and Unverified List Requests,

• OMB Control Number 0694-0137—License Exemptions and Exclusions.

BIS believes that the overall increases in burdens and costs will be minimal and will fall within the already approved amounts for these existing collections. Additional information regarding these collections of information—including all background materials—can be found at https://www.reginfo.gov/public/do/PRAMain by using the search function to enter either the title of the collection or the OMB Control Number.

Pursuant to Section 1762 of ECRA (50 U.S.C. 4821), this action is exempt from the Administrative Procedure Act (5 U.S.C. 553) requirements for notice of proposed rulemaking and opportunity for public participation.

Further, no other law requires notice of proposed rulemaking or opportunity for public comment for this final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required under the Administrative Procedure Act or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) are not applicable.

Accordingly, part 744 of the Export Administration Regulations (15 CFR parts 730 through 774) is amended as follows:

The final rule amends our regulations to revoke the authorization for the only authorized use of BVO in food. We are taking this action because there is no longer a basis to conclude that this use is safe.

BVO is a complex mixture of plant-derived triglycerides that have been reacted to contain atoms of the element bromine bonded to the molecules. BVO has historically been prepared from a variety of vegetable oils, including corn, cottonseed, and olive. More recently, BVO is often prepared from soybean oil and declared on food labels as “brominated soybean oil.” BVO is used primarily to help emulsify citrus-flavored soft drinks, preventing them from separating during distribution.

The final rule revokes the only authorization for the use of BVO as an ingredient in food. Specifically, the final rule removes 21 CFR 180.30, “Brominated vegetable oil.”

We are issuing this final rule consistent with our authority under sections 409(i) and 701(a) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 348(i) and 371(a)). We discuss our legal authority in greater detail in section IV of this rule.

The costs of this final rule come from reformulating products currently manufactured with BVO, relabeling products currently manufactured with BVO, ingredient substitutes for BVO, and possible changes to sensory product properties (which could lead to decreased consumption). The benefits of this final rule come in the form of public health gains from reduced exposure to BVO. The annualized costs of this rule (with a discount rate of 2 percent), minus the costs of the baseline of gradual voluntary reduction, are $0.02 million to $0.06 million. The first-year costs of the final rule are $6.6 million to $16.6 million. We estimate the annualized reduction in BVO exposure under the final rule relative to the baseline of gradual voluntary reduction to be roughly 0.02 million ounces (oz).

On April 12, 2024, the Department of the Treasury (Treasury Department) and the IRS published proposed regulations (REG-118499-23) in the Federal Register (89 FR 25829) that would provide rules on procedure and administration applicable to the reporting and payment of the excise tax on repurchases of corporate stock (stock repurchase excise tax) imposed by section 4501 of the Internal Revenue Code (Code) for repurchases made after December 31, 2022 (proposed procedural regulations). This Treasury decision finalizes the proposed procedural regulations (other than proposed § 58.6011-1(c)) after taking into account comments received, as described in the Summary of Comments and Explanation of Revisions section of this preamble. The final regulations are added as subpart B of new 26 CFR part 58 (Stock Repurchase Excise Tax Regulations), which is added to subchapter D of 26 CFR chapter I (Miscellaneous Excise Taxes).

On April 12, 2024, the Treasury Department and the IRS also published a separate notice of proposed rulemaking (REG-115710-22) in the same issue of the Federal Register (89 FR 25980) that would provide operating rules in proposed subpart A of part 58 relating to the computation of the stock repurchase excise tax (proposed computational regulations). This Treasury decision does not finalize the proposed computational regulations. The Treasury Department and the IRS intend to finalize the proposed computational regulations in a separate Treasury decision after considering comments received with respect to those proposed regulations.

Section 4501 was added to a new chapter 37 of the Code by the enactment of section 10201 of Public Law 117-169, 136 Stat. 1818 (August 16, 2022), commonly referred to as the Inflation Reduction Act of 2022 (IRA). In general, section 4501 imposes the stock repurchase excise tax on each covered corporation (as defined in section 4501(b)) for repurchases made after December 31, 2022. See section 10201(d) of the IRA. The stock repurchase excise tax is equal to 1 percent of the fair market value of any stock of the covered corporation that is repurchased (as defined in section 4501(c)(1)) by the covered corporation, or treated as repurchased by the covered corporation, during the taxable year. Section 4501(a). The term “covered corporation” includes an entity treated as a covered corporation under section 4501(d)(1)(A) or (d)(2)(A).

Section 4501(f) authorizes the Secretary of the Treasury or her delegate (Secretary) to prescribe regulations and other guidance as are necessary or appropriate to carry out, and to prevent the avoidance of, the purposes of section 4501.

On January 17, 2023, the Treasury Department and the IRS published Notice 2023-2, 2023-3 I.R.B. 374, to provide initial guidance on the application of the stock repurchase excise tax. The notice described certain operating rules for purposes of the stock repurchase excise tax that the Treasury Department and the IRS intended to include in proposed regulations. In addition, section 4 of Notice 2023-2 described the anticipated rules for reporting and paying any liability for the stock repurchase excise tax. As described in Notice 2023-2, those anticipated rules would provide that (i) the stock repurchase excise tax must be reported on IRS Form 720, Quarterly Federal Excise Tax Return, (ii) taxpayers must attach an additional form to the Form 720 reflecting the computation of the stock repurchase excise tax, (iii) the stock repurchase excise tax must be reported once per taxable year on the Form 720 that is due for the first full quarter after the close of the taxpayer's taxable year, (iv) the deadline for payment of the stock repurchase excise tax is the same as the filing deadline, and (v) no extensions are permitted for reporting or paying the stock repurchase excise tax.

Consistent with Notice 2023-2, on April 12, 2024, the Treasury Department and the IRS published the proposed procedural regulations prescribing the manner and method of reporting and paying the stock repurchase excise tax in proposed subpart B of the proposed Stock Repurchase Excise Tax Regulations (26 CFR part 58) under sections 6001, 6011, 6060, 6061, 6065, 6071, 6091, 6107, 6109, 6151, 6694, 6695, and 6696 of the Code. As noted in the preamble to the proposed procedural regulations, to assist in the identification of transactions subject to the stock repurchase excise tax, the Treasury Department and the IRS have added items relevant to the stock repurchase excise tax to tax return forms other than Form 720. See Form 1120, U.S. Corporation Income Tax Return and Form 1065, U.S. Return of Partnership Income. The Treasury Department and the IRS continue to evaluate amending or developing other forms, including for information reporting with respect to foreign owners of domestic business entities and domestic owners of foreign business entities, to assist in the identification of transactions subject to the stock repurchase excise tax.

After consideration of the comments received in response to the proposed procedural regulations, this Treasury decision adopts those regulations (other than proposed § 58.6011-1(c)) with the revisions described in this Summary of Comments and Explanation of Revisions.

One commenter suggested that the proposed computational regulations and the proposed procedural regulations should be combined into one proposal because they stem from the same piece of legislation, have the same goal, and employ the same methodology of achieving that goal. These final regulations do not adopt the commenter's suggestion. Although the proposed computational regulations and the proposed procedural regulations stem from, and facilitate the implementation of, the same piece of legislation, the Treasury Department and the IRS proposed these regulations in two separate notices of proposed rulemaking to facilitate the prompt finalization of the proposed procedural regulations, and to thereby provide taxpayers with certainty regarding the manner of reporting and paying the stock repurchase excise tax. Moreover, it is not uncommon for the Treasury Department and the IRS to issue separate tranches of regulatory guidance with respect to a single statutory provision.

Under proposed § 58.6001-1(a), any covered corporation, or any person treated as a covered corporation, that makes a repurchase or that is treated as making a repurchase is required to keep complete and detailed records sufficient to establish accurately the amount of repurchases, adjustments, or exceptions required to be shown on its stock repurchase excise tax return. Proposed § 58.6001-1(b) provides that the IRS may require any covered corporation or person treated as a covered corporation to make such returns, render such statements, or keep such specific records as to enable the IRS to determine whether the covered corporation or person treated as a covered corporation is liable for the stock repurchase excise tax. Proposed § 58.6001-1(c) provides that the records required to be maintained must be available for inspection by the IRS and retained for so long as their contents may become material.

One commenter suggested that a covered corporation should be required to keep only complete and detailed records sufficient to establish the amount of tax shown on its stock repurchase excise tax return, which is defined under proposed § 58.6011-1(b). For example, according to the commenter, if the covered corporation chooses one method for valuing the amount of the corporation's repurchases and issuances, and the IRS asserts that the covered corporation should have used a different method for valuing the amount of the corporation's repurchases and issuances, the covered corporation should not be required to maintain records sufficient to establish the amount of the corporation's repurchases and issuances under the IRS's preferred method of valuation.

The Treasury Department and the IRS disagree with the commenter. The recordkeeping requirements in proposed § 58.6001-1(a) are similar to the recordkeeping requirements under section 6001 for other excise taxes in subchapter D of 26 CFR chapter I (Miscellaneous Excise Taxes). See, for example, §§ 53.6001-1(a) (“Any person subject to tax under chapter 42 . . . shall keep records as are sufficient to enable the district director to determine accurately the amount of liability”); 55.6001-1(a) (similar with respect to tax under chapter 44); 56.6001-1(a) (similar with respect to tax under chapter 41); 156.6001-1(a) (similar with respect to tax under chapter 54); and 157.6001-1(a) (similar with respect to tax under chapter 55). Moreover, the valuation requirements in the proposed computational regulations would allow covered corporations to choose from one of four acceptable methods in determining the market price of publicly traded stock so long as the covered corporation consistently applies such method throughout the covered corporation's taxable year. See proposed §§ 58.4501-2(h) and -4(e). This recordkeeping requirement appropriately balances the need for covered corporations to keep records with the IRS's need to be able to establish accurately the amount of repurchases, adjustments, or exceptions required to be shown on a covered corporation's stock repurchase excise tax return. Accordingly, these final regulations do not adopt this comment.

Proposed § 58.6011-1(a) would require a stock repurchase excise tax return to be filed by any covered corporation, or any person treated as a covered corporation, that makes a repurchase (as defined in section 4501(c)(1)), or that is treated as making a repurchase under section 4501(c)(2)(A), (d)(1)(B), or (d)(2)(B), after December 31, 2022. Under the proposed procedural regulations, any covered corporation, or any person treated as a covered corporation, that makes a repurchase, or that is treated as making a repurchase, is required to comply with these requirements, even if every repurchase is eligible for a statutory exception under section 4501(e) (for example, in the case of repurchases by a regulated investment company (RIC), as defined in section 851 of the Code, or a real estate investment trust (REIT), as defined in section 856(a) of the Code) or is offset by issuances or provisions of the covered corporation's stock under section 4501(c)(3).

One commenter recommended that RICs and REITs should be exempt from filing the Form 7208, Excise Tax on Repurchase of Corporate Stock, provided all repurchases during the relevant reporting period are made by the RIC or the REIT and thereby qualify for the statutory exception under section 4501(e)(5). Alternatively, the commenter recommended that, in lieu of requiring RICs and REITs to file Form 7208 with respect to their repurchases, the IRS could add a “checkbox” to Form 1120-RIC, U.S. Income Tax Return for Regulated Investment Companies, and Form 1120-REIT, U.S. Income Tax Return for Real Estate Investment Trusts, pursuant to which RICs and REITs could certify that all stock repurchases made during the taxable year qualified for the statutory exception under section 4501(e)(5). According to the commenter, requiring RICs and REITs to file a Form 7208 in situations in which all their repurchases qualify for the statutory exception under section 4501(e)(5) would be unnecessary, burdensome, and duplicative of filings already required by the Securities and Exchange Commission (SEC), with no apparent benefit for tax compliance.

The Treasury Department and the IRS agree that, so long as a covered corporation qualifies as a RIC or a REIT for a taxable year, then all of such corporation's repurchases of its stock during that year would qualify for the statutory exception under section 4501(e)(5). Accordingly, the final regulations adopt the commenter's primary recommendation and exempt RICs and REITs from the obligation to file a stock repurchase excise tax return. See § 58.6011-1(a).

However, RICs and REITs would continue to be subject to the recordkeeping requirement in § 58.6001-1 under the final regulations. Records establishing a RIC's or a REIT's repurchases, adjustments, and exceptions under the stock repurchase excise tax could become relevant in the event a covered corporation ceases to qualify as a RIC or a REIT for the taxable year, or if the corporation revokes its election to be a REIT for the taxable year. In such cases, the corporation's repurchases would not qualify for the exception under section 4501(e)(5), and the information required to be retained under § 58.6001-1 would be required to compute the corporation's stock repurchase excise tax liability.

Commenters have asked whether proposed § 58.6011-1(a) could be construed as mandating a continuing annual filing requirement for any covered corporation or any person treated as a covered corporation that has made a repurchase, or that is treated as having made a repurchase, in a previous taxable year. For example, commenters have suggested that the language of proposed § 58.6011-1(a) could be read as requiring a covered corporation to file a stock repurchase excise tax return even with respect to taxable years in which the covered corporation has not made a repurchase, because proposed § 58.6011-1(a) requires any covered corporation that makes a repurchase after December 31, 2022, to file a stock repurchase excise tax return, without specifying that a repurchase must occur within the period for which such return is filed.

The Treasury Department and the IRS intended a stock repurchase excise tax return to be filed only with respect to a taxable year in which a repurchase, or a transaction treated as a repurchase, is made. Accordingly, these final regulations revise § 58.6011-1(a) to clarify that a stock repurchase excise tax return must be filed with respect to any taxable year in which the covered corporation or person treated as a covered corporation makes a repurchase or is treated as making a repurchase.

Proposed § 58.6011-1(c) cross-references proposed § 58.4501-7(d)(2) for special rules applicable to persons treated as a covered corporation (as described in section 4501(d)(2)(A)) with respect to a covered surrogate foreign corporation (as defined in section 4501(d)(3)(B)). These final regulations reserve § 58.6011-1(c). The Treasury Department and the IRS intend to finalize proposed § 58.6011-1(c) when proposed § 58.4501-7(d)(2) is finalized.

Under proposed § 58.6061-1(a), any stock repurchase excise tax return, statement, or other document required to be made with respect to the stock repurchase excise tax would be required to be signed by the person required to file the return, statement, or other document, or by the persons required or duly authorized to sign in accordance with the regulations, forms, or instructions prescribed with respect to such return, statement, or document.

One commenter suggested that the signing requirement under proposed § 58.6061-1(a) should be coordinated with the signing requirement under section 6062 of the Code. Section 6062 provides that “[t]he return of a corporation with respect to income shall be signed by the president, vice-president, treasurer, assistant treasurer, chief accounting officer or any other officer duly authorized so to act” (emphasis added).

These final regulations do not adopt this comment. By its terms, section 6062 addresses corporate income tax returns and does not apply to excise tax returns, including the stock repurchase excise tax return. Accordingly, the appropriate party to sign the stock repurchase excise return must be designated under section 6061, rather than section 6062. Moreover, proposed § 58.6011-1(b) would provide that the stock repurchase excise tax return is the Form 720 with an attached Form 7208. The Form 7208 does not have a signature line, and the instructions to the Form 7208 require the form to be attached to a Form 720, which must be signed under penalties of perjury. See Instructions to Form 7208. As such, the appropriate party to sign the stock repurchase excise tax return is the party who signs the Form 720.

The Treasury Department and the IRS have made non-substantive revisions to the Example in proposed § 58.6071-1(d) to align it with the effective date of these final regulations.

The rules described in the proposed procedural regulations generally were proposed to have applied to stock repurchase excise tax returns (and to the extent relevant, claims for refund) required to be filed after the date final regulations were published in the Federal Register , and during taxable years ending after the date final regulations were published in the Federal Register . These final regulations will apply to stock repurchase excise tax returns (and to the extent relevant, claims for refund) required to be filed after the date these final regulations are filed with the Federal Register , and during taxable years ending after the date these final regulations are filed in the Federal Register . The Treasury Department and the IRS have made this slight adjustment to the applicability dates to facilitate the IRS's administration and enforcement of the stock repurchase excise tax and provide guidance to taxpayers as quickly as possible.

Any IRS Revenue Procedure, Revenue Ruling, Notice, or other guidance cited in this preamble is published in the Internal Revenue Bulletin (or Cumulative Bulletin) and is available from the Superintendent of Documents, U.S. Government Publishing Office, Washington, DC 20402, or by visiting the IRS website at https://www.irs.gov.

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

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

The collections of information in these final regulations contain reporting and recordkeeping requirements in §§ 58.6001-1 and 58.6011-1 necessary for the IRS to accurately determine the stock repurchase excise tax due. The collection of information is required by law to comply with the provisions of section 4501 of the Code as enacted by section 10201 of the IRA.

The recordkeeping requirements mentioned within these final regulations are considered general tax records under section 6001. These records are required for the IRS to validate that taxpayers have met the regulatory requirements. The reporting requirements, including the written penalty of perjury statement, are covered within Form 7208 and its instructions. The IRS obtained OMB approval for Form 7208 and the associated collections under 1545-2323 in accordance with the procedures outlined in 5 CFR 1320.10.

These final regulations mention reporting and recordkeeping requirements for tax preparers. These final regulations are not changing the requirements contained within § 1.6107-1, which is included in 1545-1231.

Pursuant to the Regulatory Flexibility Act (5 U.S.C. chapter 6), it is hereby certified that these final regulations will not have a significant economic impact on a substantial number of small entities. This certification is based on the fact that these final regulations provide specific administrative, procedural, and recordkeeping rules that apply only to certain tax return preparers and to publicly traded corporations, which tend to consist of larger businesses. Specifically, based on data available to the IRS, for tax year 2021, 4,366 corporations reported publicly traded common stock. Of those corporations, 2,407 (over 55 percent) reported gross receipts over $100 million, and 3,272 (approximately 75 percent) reported gross receipts over $10 million. Meanwhile, for tax year 2021, the IRS received 7,464,790 Corporation Income Tax Returns and 4,710,457 U.S. Returns of Partnership Income. IRS Publication 6292, Fiscal Year Projections for the United States: 2022-2029, Fall 2022, Table 2. Of these corporation and partnership returns for tax year 2021, 11,685,207 reported total assets below $10 million. Thus, the number of corporations affected by these final regulations that reported total assets below $10 million is less than one hundredth of one percent of the total number of businesses that reported total assets below $10 million for tax year 2021. Therefore, these final regulations will not create additional obligations for, or impose an economic impact on, a substantial number of small entities. Accordingly, the Secretary certifies that the final regulations will not have a significant economic impact on a substantial number of small entities and a regulatory flexibility analysis under the Regulatory Flexibility Act is not required.

Pursuant to section 7805(f) of the Internal Revenue Code, the proposed procedural regulations (REG-118499-23) preceding these final regulations were submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on the impact on small business, and no comments were received.

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

Executive Order 13132 (Federalism) prohibits an agency (to the extent practicable and permitted by law) from promulgating any regulation that has federalism implications, unless the agency meets the consultation and funding requirements of section 6 of the Executive order, if the rule either imposes substantial, direct compliance costs on State and local governments, and is not required by statute, or preempts State law. This final rule does not have federalism implications and does not impose substantial direct compliance costs on State and local governments or preempt State law within the meaning of the Executive order.

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), the Office of Information and Regulatory Affairs designated this rule as not a “major rule,” as defined by 5 U.S.C. 804(2).

The principal authors of these regulations are Kailee H. Farrell and Samuel G. Trammell of the Office of Associate Chief Counsel (Corporate). However, other personnel from the Treasury Department and the IRS participated in their development.

On October 26, 2001, the President signed into law the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 (USA PATRIOT Act). Title III of the USA PATRIOT Act amended the anti-money laundering (AML) provisions of the Bank Secrecy Act (BSA) to promote the prevention, detection, and prosecution of international money laundering and the financing of terrorism. 1 Section 311 of the USA PATRIOT Act (section 311), codified at 31 U.S.C. 5318A, grants the Secretary of the Treasury (Secretary) authority, upon finding that reasonable grounds exist for concluding that one or more financial institutions operating outside of the United States is of primary money laundering concern, to require domestic financial institutions and domestic financial agencies to take certain “special measures.” The authority of the Secretary to administer the Bank Secrecy Act (BSA) and its implementing regulations has been delegated to FinCEN. 2

The Coast Guard will enforce multiple safety zones for annual events in the Captain of the Port Eastern Great Lakes Zone listed in 33 CFR 165.939, table 165.939, for events occurring in the month of July as listed in the `Dates' section above. Pursuant to 33 CFR 165.23, entry into, transiting, or anchoring within these safety zones during an enforcement period is prohibited unless authorized by the Captain of the Port Eastern Great Lakes or his designated representative. Those seeking permission to enter the safety zone may request permission from the Captain of Port Eastern Great Lakes via channel 16, VHF-FM. Vessels and persons granted permission to enter the safety zone shall obey the directions of the Captain of the Port Eastern Great Lakes or his designated representative. While within a safety zone, all vessels shall operate at the minimum speed necessary to maintain a safe course.

This notice of enforcement is issued under authority of 33 CFR 165.939 and 5 U.S.C. 552 (a). In addition to this notice of enforcement in the Federal Register , the Coast Guard will provide the maritime community with advance notification of this enforcement period via Broadcast Notice to Mariners or Local Notice to Mariners. If the Captain of the Port Eastern Great Lakes determines that the safety zone need not be enforced for the full duration stated in this notice, he may use a Broadcast Notice to Mariners to grant general permission to enter the respective safety zone. This notification is being issued by the Coast Guard Sector Eastern Great Lakes Prevention Department Head at the direction of the Captain of the Port.

The Alaska National Interest Lands Conservation Act (ANILCA) allows harvest of wildlife in national preserves in Alaska for subsistence purposes by local rural residents under Federal regulations. ANILCA also allows harvest of wildlife for sport purposes by any individual under laws of the State of Alaska (referred to as the State) that do not conflict with Federal laws. ANILCA requires the National Park Service (NPS) to manage national preserves consistent with the NPS Organic Act of 1916, which directs the NPS “to conserve the scenery, natural and historic objects, and wild life in the System units and to provide for the enjoyment of the scenery, natural and historic objects, and wild life in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.” 54 U.S.C. 100101(a). Thus, the NPS recognizes that its conservation stewardship mandate for national preserves in Alaska includes both utilitarian uses of wildlife as well as recognition of their intrinsic value. The NPS also recognizes that both the utilitarian use and intrinsic value of wildlife are concepts that predate the NPS Organic Act, and thus the NPS.

On June 9, 2020, the NPS published a final rule (2020 Rule; 85 FR 35181) that removed restrictions on sport hunting and trapping in national preserves in Alaska that were implemented by the NPS in 2015 (2015 Rule; 80 FR 64325). These included restrictions on the following methods of taking wildlife that were and continue to be authorized by the State in certain locations: taking black bear cubs, and sows with cubs, with artificial light at den sites; harvesting bears over bait; taking wolves and coyotes (including pups) during the denning season (between May 1 and August 9); taking swimming caribou; taking caribou from motorboats under power; and using dogs to hunt black bears. The 2015 Rule prohibited other harvest practices that were and continue to be similarly prohibited by the State. These prohibitions also were removed by the 2020 Rule. The 2020 Rule also removed a statement in the 2015 Rule that State laws or management actions that seek to, or have the potential to, alter or manipulate natural predator populations or processes in order to increase harvest of ungulates by humans are not allowed in national preserves in Alaska. The NPS based the 2020 Rule in part on direction from the Department of the Interior (DOI) to expand recreational hunting opportunities and align hunting opportunities with those established by states. Secretary's Orders 3347 and 3356. The 2020 Rule also responded to direction from the Secretary of the Interior to review and reconsider regulations that were more restrictive than state provisions, and specifically the restrictions on harvesting wildlife found in the 2015 Rule.

On January 9, 2023, the NPS published a proposed rule (88 FR 1176) that would prohibit certain harvest practices, including bear baiting; and would prohibit predator control or predator reduction on national preserves. In developing the proposed rule, NPS sought input from Tribal entities, subsistence user groups, and the State of Alaska.

The harvest practices at issue in the 2015 Rule, 2020 Rule, and this final rule are specific to harvest under the authorization for sport hunting and trapping in ANILCA. None of these rules address subsistence harvest by rural residents under title VIII of ANILCA.

Some of the harvest methods prohibited by the 2015 Rule targeted predators. When the NPS restricted these harvest methods in the 2015 Rule, it concluded that these methods were allowed by the State for the purpose of reducing predation by bears and wolves to increase populations of prey species (ungulates) for harvest by human hunters. The State's hunting regulations are driven by proposals from members of the public, fish and game advisory entities, and State and Federal Government agencies. The State, through the State of Alaska Board of Game (BOG), deliberates on the various proposals publicly. Many of the comments made in the proposals and BOG deliberations on specific hunting practices showed that they were intended to reduce predator populations for the purpose of increasing prey populations. Though the State objected to this conclusion in its comments on the 2015 Rule, the NPS's conclusion was based on State law and policies;  1 BOG proposals, deliberations, and decisions;  2 and Alaska Department of Fish and Game actions, statements, and publications leading up to the 2015 Rule. 3 Because NPS Management Policies state that the NPS will manage lands within the National Park System for natural processes (including natural wildlife fluctuations, abundances, and behaviors) and explicitly prohibit predator control, the NPS determined that these harvest methods authorized by the State were in conflict with NPS mandates. NPS Management Policies (4.4.1, 4.4.3) (2006). For these reasons and because the State refused to exempt national preserves from these authorized practices, the NPS prohibited them in the 2015 Rule and adopted a regulatory provision consistent with NPS policy direction on predator control related to harvest. The 2015 Rule further provided that the Regional Director would compile, annually update, and post on the NPS website a list of any State predator control laws or actions prohibited by the NPS on national preserves in Alaska.

As stated above, the 2015 Rule only restricted harvest for “sport purposes.” Although this phrase is used in ANILCA, the statute does not define the term “sport.” In the 2015 Rule, the NPS reasoned that harvest for subsistence is for the purpose of feeding oneself and family and maintaining cultural practices, and that “sport” or recreational hunting invokes Western concepts of fairness which do not necessarily apply to subsistence practices. Therefore, the 2015 Rule prohibited the practices of harvesting swimming caribou and taking caribou from motorboats under power which the NPS concluded were not consistent with generally accepted notions of “sport” hunting. This conclusion also supported restrictions in the 2015 Rule on the practices of taking bear cubs and sows with cubs; and using a vehicle to chase, drive, herd, molest, or otherwise disturb wildlife. To illustrate how the 2015 Rule worked in practice, a federally qualified local rural resident could harvest bear cubs and sows with cubs, or could harvest swimming caribou (where authorized under Federal subsistence regulations), but a hunter from Anchorage, Fairbanks, Juneau or other nonrural areas in Alaska, or a hunter from outside Alaska, could not.

In the 2015 Rule, the NPS also concluded that the practice of putting out bait to attract bears for harvest poses an unacceptable safety risk to the visiting public and leads to unnatural wildlife behavior by attracting bears to a food source that would not normally be there. The NPS based this conclusion on the understanding that bears are more likely to attack when defending a food source and therefore visitors who encountered a bait station would be at risk from bear attacks. In addition, the NPS concluded that baiting could cause more bears to become conditioned to human food, creating unacceptable public safety risks. The NPS based this conclusion on the fact that not all bears that visit bait stations are harvested; for example, a hunter may not be present when the bear visits the station, or a hunter may decide not to harvest a particular bear for a variety of reasons. Additionally, other animals are attracted to bait stations. Because bait often includes dog food and human food, including items like bacon grease and pancake syrup, which are not a natural component of animal diets, the NPS was concerned that baiting could lead to bears and other animals associating these foods with people, which would create a variety of risks to people, bears, and property. For these reasons, the 2015 Rule prohibited bear baiting in national preserves in Alaska.

The NPS received approximately 70,000 pieces of correspondence during the public comment period for the 2015 Rule. These included unique comment letters, form letters, and signed petitions. Approximately 65,000 pieces of correspondence were form letters. The NPS also received three petitions with a combined total of approximately 75,000 signatures. The NPS counted a letter or petition as a single correspondence, regardless of the number of signatories. More than 99% of the public comments supported the 2015 Rule. Comments on the 2015 Rule can be viewed on regulations.gov by searching for “RIN 1024-AE21”.

The 2020 Rule reconsidered the conclusions in the 2015 Rule regarding predator control, sport hunting, and bear baiting. First, the 2020 Rule reversed the 2015 Rule's conclusion that the State intended to reduce predator populations through its hunting regulations. As explained above, the NPS's conclusion in the 2015 Rule was based on BOG proposals, deliberations, and decisions; and Alaska Department of Fish and Game actions, statements, and publications that preceded the 2015 Rule. However, in their written comments on the 2015 and 2020 Rules, the State denied that the harvest practices for predators were part of their predator control or intensive management programs and therefore were not efforts to reduce predators. In its written comments, the State argued that the liberalized predator harvest rules were simply a means to provide new opportunities for hunters to harvest predators, in response to requests received by the BOG. The State argued that it provided these new opportunities under a “sustained yield” management framework, which is distinct from what the State considers “predator control.” The State asserted that it has a separate, formal predator control program which is not considered “hunting” by the State. According to the State, predator control occurs only through its “intensive management” program.

The NPS afforded the State's written comments on the 2020 Rule more weight than it did on the State's similar comments on the 2015 Rule, both of which were in conflict with other contemporaneous public State positions on the matter. The NPS took into account the analysis in the environmental assessment supporting the 2020 Rule, which concluded that the hunting practices in question would not likely alter natural predator-prey dynamics at the population level or have a significant foreseeable adverse impact to wildlife populations, or otherwise impair park resources. The NPS also reconsidered what it viewed as the legislative requirements of ANILCA with respect to hunting in national preserves in Alaska. Based upon these considerations, the NPS concluded the hunting practices did not run afoul of NPS Management Policies section 4.4.3, which prohibits predator reduction to increase numbers of harvested prey species. This led the NPS to remove two provisions that were implemented in the 2015 Rule: (1) the statement that State laws or management actions intended to reduce predators are not allowed in National Park System units in Alaska, and (2) prohibitions on several methods of harvesting predators. With prohibitions on harvest methods removed, the 2020 Rule went back to deferring to authorizations under State law for harvesting predators. To illustrate how the 2020 Rule works in practice, Alaska residents, including rural and nonrural residents, and out-of-state hunters may take wolves and coyotes (including pups) for sport purposes in national preserves during the denning season in accordance with State law.

The 2020 Rule also relied upon a different interpretation of the term “sport” in ANILCA's authorization for harvest of wildlife for sport purposes in national preserves in Alaska. As explained above, the 2015 Rule gave the term “sport” its common meaning associated with standards of fairness, and prohibited certain practices that were not compatible with these standards. In the 2020 Rule, the NPS stated that in the absence of a statutory definition, the term “sport” merely served to distinguish sport hunting from harvest under Federal subsistence regulations. Consequently, under the 2020 Rule, practices that may not be generally compatible with notions of “sport”—such as harvesting swimming caribou or taking cubs and pups or mothers with their young—may be used by anyone in national preserves in accordance with State law.

Finally, the 2020 Rule reconsidered the risk of bear baiting to the visiting public. The NPS noted that peer-reviewed data are limited on the specific topic of hunting bears over bait. Additionally, the NPS concluded that human-bear interactions are likely to be rare, other than for hunters seeking bears, due to a lack of observed bear conditioning to associate bait stations with humans and the relatively few people in such remote areas to interact with bears. In making this risk assessment, the NPS took into account State regulations on baiting that are intended to mitigate safety concerns, and NPS authority to enact local closures if and where necessary. For these reasons and because of policy direction from the DOI and the Secretary of the Interior requiring maximum deference to state laws on harvest that did not exist in 2015, the 2020 Rule rescinded the prohibition on bear baiting that was implemented in the 2015 Rule. As a result, any Alaska resident, including rural and nonrural residents, or out-of-state hunter may take bears over bait in national preserves in Alaska in accordance with State law, including with the use of human and dog foods.

The NPS received 211,780 pieces of correspondence, with a total of 489,101 signatures, during the public comment period for the 2020 Rule. Of the 211,780 pieces of correspondence, approximately 176,000 were form letters and approximately 35,000 were unique comments. More than 99% of the public comments opposed the 2020 Rule. Comments on the 2020 Rule can be viewed on Regulations.gov by searching for “RIN 1024-AE38”.

Several environmental organizations sued NPS challenging the 2020 Rule, and Alaska and several hunting organizations intervened to defend the rule. NPS did not defend the rule on the merits but instead sought a voluntary remand, without vacatur, in light of its ongoing reassessment of the factual, legal, and policy conclusions underlying the rule. The district court denied that motion, and subsequently granted the plaintiffs' motion for summary judgment in part and denied it in part. See Alaska Wildlife Alliance v. Haaland, 632 F. Supp. 3d 974 (D. Alaska 2022). The court held that the 2020 Rule violated the Administrative Procedure Act in three respects, ruling as follows:

• NPS acted contrary to law insofar as it determined that its statutory authority to regulate hunting on the National Preserves of Alaska is restricted to a “limited closure authority” and that ANILCA mandates that NPS defer to State hunting regulations.

• NPS's finding that State of Alaska's and Federal wildlife management requirements are equivalent is arbitrary and capricious.

• NPS's disregard without explanation of its conclusion in 2015 that State regulations fail to address public safety concerns associated with bear baiting is arbitrary and capricious.

The court remanded the 2020 Rule to NPS, without vacatur, for further proceedings consistent with its opinion.

In this rule, the NPS reconsiders the conclusions that supported the 2020 Rule, while taking into account the defects in the Rule identified by the district court. The proposed rule addressed three topics that were considered in the 2015 and 2020 Rules: (1) bear baiting; (2) the meaning and scope of hunting for “sport purposes” under ANILCA; and (3) State law addressing predator harvest. After reconsidering these topics, the NPS has decided to prohibit the practice of taking bears over bait based primarily on public safety concerns and new factual information pertaining to the risk posed to the visiting public. This rule also clarifies the regulatory definition of trapping. Although the district court confirmed in the challenge to the 2020 Rule that the agency possesses the authority to do so, the NPS has decided against addressing the other hunting practices outlined in the proposed rule at this time, though it may re-evaluate whether regulatory action is necessary in the future. The approach NPS takes in this final rule, which focuses on addressing the threat to public safety from bear baiting, is considerably narrower than the 2015 Rule. It is an improvement over the 2020 Rule because it is more consistent with NPS policies to protect wildlife and promote visitor safety.

This rule prohibits bear baiting in national preserves in Alaska. Bait that hunters typically use to attract bears includes processed foods like bread, pastries, dog food, and bacon grease. The NPS mission is broad and includes measures to promote the safety of those who visit System units (see 2006 NPS Management Policies, section 8.2.5) as well to protect natural wildlife populations (see 2006 NPS Management Policies, section 4.4.2). This rule will lower the probability of visitors encountering a bait station where bears may attack to defend a food source. Further, this rule will lower the risk that bears will associate food at bait stations with humans and become conditioned to eating human-produced foods, thereby creating a public safety concern. This action to prohibit baiting is supported by these two primary risk factors and other considerations that are discussed below.

The risks caused by humans feeding bears (including baiting them with food) are widely recognized. 4 Bears are more likely to attack when defending a food source, putting visitors who encounter a bear at or near a bait station or a kill site at significant risk. 5 Visitors to national preserves in Alaska may inadvertently encounter bears and bait stations while engaging in sightseeing, hiking, boating, hunting, photography, fishing, and a range of other activities. This is because despite the vast, relatively undeveloped nature of these national preserves, most visitation occurs near roads, trails, waterways, or other encampments ( e.g., cabins, residences, communities). Establishing and maintaining a bait station requires the transport of supplies, including bait, barrels, tree stands, and game cameras. Because of the effort involved, bear baiters typically establish stations close to access points used by other visitors, such as roads, trailheads, and waterways, and are not likely to travel beyond these locations into more remote and less visited areas. As a result, the same roads, trails, and waterways used by visitors are, therefore, also used by those setting up a bait station. Thus, despite the vast landscapes, bear baiting and many other visitor activities are concentrated around the same limited access points. Processed foods are most commonly used for bait because they are convenient to obtain and are attractive to bears. Processed foods do not degrade quickly nor are they rapidly or easily broken down by insects and microbes. As a result, they persist on the landscape along with the public safety risk of bears defending a food source.

The NPS recognizes that there are restrictions in State law intended to mitigate the risks described above. Bait stations are prohibited within 1/4 mile of a road or trail and within one mile of a dwelling, cabin, campground, or other recreational facility. State regulations also require bait station areas to be signed so that the public is aware that a bait station exists. Although these mitigation measures may reduce the immediate risk of visitors approaching a bear defending bait, NPS records indicate that the majority of bait stations established at Wrangell-St. Elias National Preserve do not comply with the State's minimum distance requirements. Further, these requirements do not mitigate the risk of other adverse outcomes associated with baiting that are discussed below.

Another aspect of bear baiting that poses a public safety and property risk is the possibility that bears become habituated to humans through exposure to human scents at bait stations and then become food conditioned, meaning they learn to associate humans with a food reward (bait). This is particularly true of processed foods that are not part of a bear's natural diet because virtually all encounters with processed foods include exposure to human scent.

It is well understood that habituated and food-conditioned bears pose a heightened public safety risk. 6 The published works of Stephen Herrero, a recognized authority on human-bear conflicts and bear attacks, explain the dangers from bears that are habituated to people or have learned to feed on human food, highlight that habituation combined with food-conditioning has been associated with a large number of injuries to humans, and indicate that bears may become food-conditioned from exposure to human food at bait stations.

The 2020 Rule concluded that the State's mitigation measures described above would serve to mitigate risk to public safety. However, as a district court noted in setting aside that finding, the 2020 Rule did not account for the contrary information contained in the 2015 Rule. See Alaska Wildlife Alliance v. Haaland, 632 F. Supp. 3d 974 (D. Alaska 2022). The State's mitigation measures, including requirements for buffers and signage, do not adequately address the risk associated with habituated and food-conditioned bears because bears range widely, having home ranges of tens to hundreds of square miles. 7 The buffers around roads, trails, and dwellings are therefore inconsequential for bears that feed at bait stations but are not harvested there. These bears have the potential to become habituated to humans and conditioned to human-produced foods, resulting in increased likelihood of incidents that compromise public safety, result in property damage, and threaten the lives of bears who are killed in defense of human life and property.

In the 2020 Rule, the NPS revisited the issue of whether bear baiting poses safety concerns. In part, the 2020 NPS analysis relied on certain studies, including a study of black bear baiting in Alaska from 1992 to 2010. The 2020 Rule did not accurately describe the conclusions of this study. The study concludes that the practice is not likely to have population level effects on black bears. It explicitly states, however, that the challenge presented by bear baiting is that baiting is contrary to efforts to minimize food conditioning of bears and the goal of promoting public safety.

The NPS also reconsidered other studies of public safety risks associated with bear baiting that were cited in the 2020 Rule and determined that they were inconclusive insofar as they relied solely on observational data and thus lacked experimental rigor. The lack of peer-reviewed data that would support rigorous analysis of these risks is not surprising because rigorous studies specific to this point are neither logistically nor ethically feasible. Further, the 2020 Rule failed to fully consider the vast experience and knowledge of recognized bear experts and professional resource managers. To address this data gap, the NPS undertook an effort to obtain new and additional information in connection with this rulemaking. In April 2022, the NPS queried 14 NPS resource managers and wildlife biologists from 12 different National Park System units in Alaska about bear baiting. These technical experts had an average of more than 20 years of experience as natural resource managers and their unanimous opinion was that bear baiting will increase the likelihood of defense of life and property kills of bears and will alter the natural processes and behaviors of bears and other wildlife. In the winter of 2022-2023, the NPS queried 28 North American bear management and research biologists from state and provincial agencies, universities, and non-NPS Federal agencies. On average, each of these individuals had 25 years of bear expertise at the time of the survey. All 28 agreed that baiting bears as allowed under State law was functionally equivalent to feeding bears. Twenty-six of the biologists thought bears would defend a bait station in a manner equivalent to how that bear would defend a carcass (the remaining two were neutral). Twenty-six of the 28 biologists thought baiting would lead to bears associating food with humans ( i.e., food conditioning). Twenty-five of the 28 biologists thought a 1/4 mile buffer around trails would be insufficient to resolve the public safety concerns of a bear defending a bait station. Twenty-seven of the 28 biologists thought a one-mile buffer around dwellings would not resolve the public safety concerns of bears associating food with people. All 28 biologists thought that natural bear behavior would be altered by baiting and that the broader ecosystem potentially would be impacted by baiting with non-natural foods.

Considering the potential for significant human injury or even death, these experts considered the overall risk of bear baiting to the visiting public to be moderate to high. These findings generally agree with the universal recognition in the field of bear management that food conditioned bears result in increased bear mortality and heightened risk to public safety and property, and that baiting, by its very design and intent, alters bear behavior. The findings also are consistent with the State's management plan for Denali State Park. The management plan expresses concern that bear baiting “teaches bears to associate humans with food sources” and states that bear baiting is in direct conflict with recreational, non-hunting uses of the park. The plan further notes that bear baiting has “the potential for creating serious human-bear conflicts, by encouraging bears to associate campgrounds and other human congregation points with food sources.”  8

As a result of these more recent factual findings and renewed analysis, the NPS has determined that it has sound reasons based on the collective expertise of recognized bear managers and researchers from across North America to prohibit bear baiting. See FCC v. Fox Television Stations, Inc., 556 U.S. 515 (2009). In doing so, the NPS acknowledges this is a change of policy from the 2020 Rule. This change is permissible under the relevant statutes and better advances the statutory goals and NPS duties relating to management of wildlife, and visitor experience and safety. There are good reasons to make this change—the 2020 Rule was not “instantly carved in stone” and NPS maintains, for various reasons, including changed factual circumstances, new information about bear baiting, and a change in policy direction, that prohibiting bear baiting is better for practical reasons and better complies with applicable law. Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005). As discussed above, the change also fully addresses and responds to the district court's ruling that the 2020 Rule arbitrarily “disregard[ed] without explanation [our] conclusion in 2015 that State regulations fail to address public safety concerns associated with bear baiting.” Alaska Wildlife Alliance, 653 F. Supp. 3d at 1005.

The two primary risk factors discussed above fully justify the bear-baiting prohibition in National Preserves implemented by this rule. In addition to those two factors explained above, the reasons for the NPS regulatory change are amplified by other considerations that support a prohibition on all bear baiting. The NPS is guided by its mandates under the NPS Organic Act to conserve wildlife and under ANILCA to protect wildlife populations. Food-conditioned bears are more likely to be killed by authorities or by the public in defense of life or property. 9 While the NPS supports wildlife harvest as authorized in ANILCA, it cannot promote activities that increase non-harvest mortalities of bears.

The NPS received feedback from Tribes and Alaska Native Claims Settlement Act (ANCSA) Corporations before publication of the proposed rule that indicated baiting bears is not a common activity in or near national preserves and not a common action by local rural residents. Many of the entities voiced support for prohibiting baiting altogether, limiting bait to natural items, increasing buffer zones around developments, or requiring a permit. On the other hand, a minority—mostly entities affiliated with the Wrangell-St. Elias area—recommended continuing to allow sport hunters to harvest bears over bait, including with use of processed foods like donuts and dog food. We have thoroughly considered these comments, including the comments in support of bear baiting, and we have decided for the reasons stated above to prohibit the practice in Alaska's National Preserves.

Hunting is prohibited in National Park System units except as specifically authorized by Congress. 36 CFR 2.2(b). Title VIII of ANILCA allows local rural residents to harvest wildlife for subsistence in most, but not all, lands administered by the NPS in Alaska. Title VIII also created a priority for Federal subsistence harvest over other consumptive uses of fish and wildlife. See 16 U.S.C. 3112(2), 3114. Separate from subsistence harvest, ANILCA authorized anyone to harvest wildlife for “sport purposes” on NPS lands in Alaska designated as national preserves. When first authorized under ANILCA, the State managed subsistence harvest by local rural residents under title VIII as well as harvest for sport purposes by anyone. After a ruling from the State Supreme Court that the State Constitution barred the State from implementing the rural subsistence priority provisions of ANILCA, see McDowell v. State, 785 P.2d 1 (Alaska 1989), the Federal Government assumed management of subsistence harvest on Federal lands in Alaska under title VIII. Following this decision, the State only regulates harvest (concurrently with NPS) for sport purposes under ANILCA on national preserves. 10 Under the State's current framework, Alaska residents have a priority over nonresidents but there is no prioritization based upon where one resides in Alaska. Accordingly, assuming satisfaction of preliminary requirements like obtaining a tag for any targeted species, all residents of Alaska have an equal opportunity to harvest wildlife for “sport purposes” in national preserves under State law.

The NPS re-evaluated whether it was appropriate for the 2020 Rule to change its interpretation of the term “sport” from the 2015 Rule. A fundamental principle of statutory interpretation is that each word is presumed to have meaning and that words generally carry their ordinary meaning. The 2020 Rule interpreted the term “sport” to merely distinguish sport hunting from harvest under Federal subsistence regulations. If Congress intended the term “sport” to have this meaning, however, it could have more simply and clearly allowed for the taking of fish and wildlife in national preserves for “subsistence uses and other uses” or “subsistence uses and non-subsistence uses.” See 16 U.S.C. 3201. The NPS believes a more faithful interpretation of this provision is to give a meaning to the term “sport” that recognizes its distinct ordinary definition. This is consistent with how Congress framed the purposes of ANILCA, which includes an intent of Congress “to preserve . . . recreational opportunities including but not limited to hiking, canoeing, fishing, and sport hunting . . . .” See 16 U.S.C. 3101(b) (emphasis added). The NPS maintains that the best understanding of this term, as explained more fully below, incorporates principles of fairness and, in the context of wildlife harvest, fair chase. Giving “sport” this meaning also is more consistent with the overall intent of Congress to provide a preference for subsistence harvest under title VIII of ANILCA. In contrast to harvest for sport or recreation, harvest for subsistence use is not bound by Western notions of fair chase. Rather, subsistence values an effort in support of sustenance and cultural traditions.

The interpretation of the term “sport” in this rule expands on the NPS interpretation from previous rulemakings. In addition, this expanded interpretation is consistent with the 2015 Rule and NPS statements in the Federal Register concerning a regulatory action that was finalized in 1995 (60 FR 18534) to prohibit same-day-airborne hunting of bear, caribou, Sitka black-tailed deer, elk, coyote, arctic and red fox, mountain goat, moose, Dall sheep, lynx, bison, musk ox, wolf and wolverine (now codified at 36 CFR 13.42(d)). In 1989, when the prohibition was first proposed, the NPS stated that in national preserves, the prohibition of same-day-airborne hunting of wolves would be “consistent with the `fair chase' philosophy of hunting” (54 FR 24853). The proposed rule further stated that the rulemaking action would not unduly restrict aircraft access for sport hunting purposes when the concept of “fair chase” is maintained (54 FR 24853). When the prohibition was proposed again in 1994, the NPS stated it “did not consider the use of aircraft in such proximate relation to the actual taking of wildlife as is the case with same-day-airborne hunting to be a sporting practice” and that “[a]lthough Congress clearly provided for continued sport hunting in national preserves, same-day-airborne hunting does not appear to be intended to be legitimately related to such sport” (59 FR 58806).

The meaning of “sport” is critical given how the NPS has implemented the 1916 Organic Act direction to conserve wildlife. Based upon this conservation mandate, hunting is prohibited in National Park System units except as authorized by Congress. 36 CFR 2.2(b). ANILCA authorizes harvest for Federal subsistence and for “sport purposes” in national preserves in Alaska. The NPS interprets the term “sport” to include the concept of fair chase as articulated by hunting organizations, as not providing an unfair advantage to the hunter and allowing the game to have a reasonable chance of escape. For example, the Boone and Crockett Club, the oldest wildlife conservation group in North America, defines the term “fair chase” as “the ethical, sportsmanlike, and lawful pursuit and taking of any free-ranging wild game animal in a matter that does not give the hunter an improper or unfair advantage over the game animals,” and states that “[t]he fair chase hunter . . . [d]efines `unfair advantage' as when the game does not have reasonable chance of escape.”  11 Similarly, the Hunting Heritage Foundation defines “fair chase” as “the balance between the hunter and the hunted animal that occasionally allows the hunter to succeed while animals generally avoid being taken,” and states that “[f]air chase laws, outlawing unfair methods like poison, snares, or bait, ensure that the hunted animal has a reasonable opportunity to elude the hunter.”  12

The NPS requested comment on this concept of “sport”. Responses to comments received on the topic of “sport” are provided below.

The 2020 Rule concluded that the “State's constitutional mandate for sustained yield is consistent with NPS Management Policies, which state that the NPS manages [wildlife] harvest to allow for self-sustaining populations of harvested species.” However, as the district court explained in its 2022 opinion rejecting that conclusion, State and Federal wildlife management objectives are somewhat similar but not equivalent. Therefore, the NPS cannot fully rely on State management to ensure consistency with Federal law and policy. NPS policy interprets and implements the NPS Organic Act. NPS Management Policies require the NPS to manage National Park System units for natural processes, including natural wildlife fluctuations, abundances, and behaviors, and specifically prohibit the NPS from engaging in predator reduction efforts to benefit one harvested species over another or allowing others to do so on NPS lands. (NPS Management Policies 2006, Ch. 4). This policy is supported by the ANILCA's legislative history. The Report of the Committee on Energy and Natural Resources, U.S. Senate, Report No. 96-413, at page 171, states that “[i]t is contrary to the National Park Service concept to manipulate habitat or populations to achieve maximum utilization of natural resources. Rather, the National Park System concept requires implementation of management policies which strive to maintain natural abundance, behavior, diversity and ecological integrity of native animals as part of their ecosystem, and that concept should be maintained.”

In its 2022 opinion, the district court acknowledged that NPS Management Policies prohibit predator reduction efforts. The court nevertheless concluded that the 2020 Rule did not conflict with that policy “because substantial evidence supports NPS's finding that the State hunting regulations at issue . . . do not have the effect of reducing the natural abundance of predator species in the National Preserves.” That conclusion does not address the conflict with NPS Management Policies, which provide that NPS “does not engage in activities to reduce the numbers of native species for the purpose of increasing the numbers of harvested species ( i.e., predator control), nor does the Service permit others to do so on lands managed by the National Park Service” (emphasis added). Measures enacted for the purpose of predator control thus are prohibited by policy even if they do not actually reduce predator populations or increase the number of prey species available to hunters. For that reason, the limited data discussed in 2020 Rule and in the district court's opinion suggesting that Alaska's predator control measures may not impact predator population levels within national preserves do not lead to the conclusion that such measures are consistent with NPS policies. The position articulated in the 2020 Rule instead is in tension with these policies based upon the information NPS collected over a period of years before the publication of the 2015 Rule. This information indicates that the State allowed the predator harvest practices for the purpose of benefitting prey species over predators and that the practices are therefore contrary to NPS policy. For this reason, the NPS reaffirms its policy that actions intended to reduce predator species, whether effective or not, are not allowed on lands managed by the NPS. However, for the reasons discussed in the summary of changes to the final rule and in response to specific comments below, the NPS does not believe it is necessary at this time to incorporate this prohibition into the regulatory text of this final rule. The NPS may reconsider whether this policy statement should be incorporated into regulations in the future. Park superintendents in Alaska may also use this clarified policy in support of closures or other measures as appropriate.

The rule also revises the definition of “trapping” to clarify that trapping only includes activities that use a “trap” as that term is defined in NPS regulations. The definition of “trapping” promulgated in the 2015 Rule inadvertently omitted reference to the use of traps and instead referred only to “taking furbearers under a trapping license.” The revision in this rule resolves any question about whether trapping can include any method of taking furbearers under a trapping license, which could include the use of firearms depending upon the terms of the license. This change more closely aligns the definition of “trapping” for System units in Alaska with the definition that applies to all other System units (see 36 CFR 1.4). This clarification is an improvement over the 2015 Rule and will facilitate better administration of, and participation in, trapping on national preserves in Alaska.

The NPS intends these regulations to be severable. This final rule amends NPS's existing regulations, and in general, NPS regulatory provisions related to hunting and trapping in Alaska national preserves can be functionally implemented if each revision in this final rule occurred on its own or in combination with any other subset of revisions. Bear baiting, the meaning of “sport hunting,” predator control, and the definition of trapping are separate and discrete issues, and the provisions related to each of those issues can clearly and effectively be implemented independently of each other. As a result, if a court were to invalidate any particular provision of this final rule, allowing the remainder of the rule to remain in effect would still result in functional regulation of hunting and trapping in Alaska national preserves.

On January 5, 2023, the NPS sent letters to Tribal entities inviting them to consult on this rule. The NPS followed each of these letters with calls and emails. The NPS met with every Tribal entity that requested a meeting in the venue and format of their choosing to best facilitate meaningful engagement. On January 9, 2023, the NPS published the proposed rule in the Federal Register (88 FR 1176). The proposed rule was open for an initial 60-day public comment period. The NPS extended the comment period on March 10, 2023 (88 FR 14963), in response to requests from the public and the State for more time to review the proposal. In total, the comment period was open for 77 days including the extension. The comment period closed on March 27, 2023. The NPS invited comments through the mail, hand delivery, and through the Federal eRulemaking Portal at https://www.regulations.gov.

The NPS received 199,494 pieces of correspondence on the proposed rule, including 196,158 form letters and 3,336 unique pieces of correspondence. Following publication of the proposed rule, the NPS consulted with the State. Meetings were held on February 23, 2023, and March 6, 2023, between NPS Alaska Region staff and Alaska Department of Fish and Game staff specific to the proposed rule, and on March 6, 2023, between the NPS Director and Alaska Department of Fish and Game leadership. Additionally, following publication of the proposed rule, the NPS presented the proposed rule at numerous public meetings, including BOG meetings, Subsistence Resource Commission meetings, and Regional Advisory Council meetings. NPS leadership also met with the Alaska Congressional Delegation several times following publication of the proposed rule.

A summary of the pertinent issues raised in the comments received and NPS responses are provided below. After consultation, considering public comments, revising the EA and issuing the FONSI, the NPS made the following changes in this final rule:

1. The NPS removed the table of 14 prohibited practices and instead only prohibits the use of bait, and specifically the practice of bear baiting, for the reasons stated above. Most of the remaining practices from the table are currently prohibited under state law. To the extent any of the remaining practices are currently allowed under state law, they typically only apply to a limited number of preserves. While the NPS believes the remaining listed practices are generally not appropriate under the NPS management framework for the reasons discussed in the proposed rule, the NPS has decided against taking action at this time for those practices. Information from user groups, including Alaska Native entities, that commonly harvest wildlife in national preserves in Alaska expressed their belief, consistent with NPS management observations, that there is little to no demand to engage in these harvest practices in national preserves (other than limited demand to bait bears primarily in a single preserve). The practice of bear baiting, however, poses significant public safety concerns, which urgently requires regulatory action. Concerns with the other practices do not carry the same degree of urgency. They are either already prohibited by the state or occur on a limited basis.

Additionally, park superintendents have authority to prohibit or restrict these practices if they deem it necessary. For these reasons, NPS has decided not to adopt regulatory prohibitions on these practices at this time. The NPS may re-evaluate regulatory action in the future.

2. The NPS decided not to incorporate the provision from NPS Management Policies regarding predator control into the regulatory text of this final rule. The NPS determined it is not necessary to incorporate this prohibition at this time in the regulatory text of this final rule. NPS may reconsider whether this policy statement should be incorporated into regulatory provisions in the future.

3. Based on public comment that there is confusion on when a firearm can be used under a trapping license, the NPS modified the definition of trapping in § 13.1 to clarify that a firearm can be used to take a furbearer in conjunction with a trapping license when a furbearer is (1) ensnared in an intact trap; (2) ensnared by a trap that is no longer anchored; or (3) mortally wounded by a trap but has broken free from the trap, during an open trapping season for that species. This allows the humane dispatch of a furbearer that has been caught in a trap. Free-ranging furbearers may not be harvested with a firearm under a trapping license. Free-ranging furbearers may be harvested with a firearm under a hunting license during an open hunting season for the harvested species.

4. The NPS added a new paragraph (k) addressing the severability of the regulations in § 13.42.

1. Comment: Commenters suggested that the economic benefit of wildlife viewing, outdoor recreation, and tourism to Alaska's state economy are greater than the economic benefit of sport hunting.

NPS Response: The NPS agrees that several analyses, including ECONorthwest (2014), USDOI-USDOC (2018), and The University of Alaska (2019), 13 have estimated that wildlife viewing contributes more to Alaska's state economy in terms of jobs, labor income, and revenue, than hunting. However, the economic analysis for this rule evaluates costs, benefits, and impacts to small businesses relative to baseline conditions (the conditions absent the rule). The NPS does not expect the rule to affect visitation, or the number of days visitors come to national preserves to view wildlife or engage in other non-hunting recreational activities. Further, the NPS expects impacts to hunters to be small. Individuals who choose to hunt wildlife in national preserves would be mostly unaffected by the rule, and hunters that are interested in the specific practices affected by this rule could substitute many other locations in Alaska (or other seasons) in which such hunting practices are still allowed. As a result, the NPS does not expect the rule to impact small businesses or the overall state economy.

2. Comment: Commenters suggested that the intrinsic value of protecting wildlife outweighs potential costs to sport hunters.

NPS Response: The NPS acknowledges that there are many ways to assess the value of wildlife. In economics, for example, value is measured by consumer surplus, which is calculated as an individual's willingness to trade off money (and thus other goods and services) for a resource or service as a measure of how much that resource or service is “worth” to that individual; how much they value it. While this is an anthropocentric concept of value based on the ways in which a resource or service benefits human well-being, it is a useful measure that allows for the comparison of benefits and costs in a consistent and well-understood metric of dollars. This is also a key component of the measure of value that Federal agencies are directed to use in cost-benefit analyses (Office of Management and Budget (OMB) Circular A-4; OMB Circular A-94). Importantly, however, such economic values do not have to involve any human use of, or interaction with, a resource. Passive, or nonuse values, capture the values people place on the existence of wildlife or the preservation of wildlife for future generations, independent of any “use” of that wildlife. Intrinsic value, on the other hand, is an eco-centric concept reflecting the perspective that wildlife has value in its own right, regardless of its contribution to human uses or well-being (Rea and Munns, 2017). Passive use value is the most closely related economic concept to intrinsic value, but still focuses on human well-being and human-ascribed values. As noted by Rea and Munns (2017), while passive use values can be quantified monetarily through economic valuation, there are no standard metrics or methods for describing intrinsic values. Methods to quantify intrinsic values are evolving and have not yet reached the same level of acceptance as economic valuation methods.

In the previous version of the cost-benefit analysis for this rule, the NPS included one example of relevant passive use values associated with wildlife in Alaska (bears) that could be affected by this rule. In response to these comments, the NPS has expanded the discussion by including a definition of passive use value, a definition of intrinsic value, and how the two relate. The NPS has also included additional references for passive use values and intrinsic values. 14

3. Comment: Commenters suggested that the value of a living animal spans time ( e.g., through wildlife viewing) and is greater than that of the associated pelt or meat.

NPS Response: The NPS is aware of a study by Elbroch et al. (2017)  15 that compared the tourism spending and business revenue generated by one commonly seen and photographed bobcat in Yellowstone National Park to the average price of a bobcat pelt and hunting license. The NPS is also aware of several analyses that have demonstrated the importance of wildlife viewing and the greater overall contributions such tourism makes to Alaska's state economy compared to hunting.

Cost-benefit analyses of Federal regulatory actions, however, evaluate and compare specific measures of economic value referred to as consumer surplus— e.g., the value of recreational opportunities such as hunting and wildlife viewing, and passive use values associated with the preservation and avoided loss of wildlife. This is the appropriate economic measure of societal welfare, allowing for a comparison of costs and benefits in consistent terms (OMB Circular A-4; OMB Circular A-4). Economic analyses of NPS regulatory actions also evaluate impacts to small businesses associated with potential changes in park visitation.

This regulatory action is not expected to affect visitation or the number of days visitors come to national preserves to view wildlife, and as a result, is not expected to have any associated economic effects on consumer surplus or impacts to guides and other small businesses. However, this rule could have a small impact on wildlife sightings for those visitors who already come to national preserves. The NPS acknowledges that a single animal has the potential to generate wildlife viewing opportunities for many different people that spans a longer period of time and has discussed this issue in the updated cost-benefit analysis for this rule.

4. Comment: Commenters stated that the rule exceeds the NPS's authority under ANILCA. Commenters stated that ANILCA gives sole discretion to the State to regulate harvest of wildlife for sport purposes under 16 U.S.C. 3202(a) and that 16 U.S.C. 3201 limits NPS authority to implementing temporary closures in specific locations.

NPS Response: The NPS recognizes the State has responsibility and authority for management of fish and wildlife on national preserves in Alaska. 16 U.S.C. 3202(a). Similarly, however, the NPS has responsibility and authority over the management of these areas. 16 U.S.C. 3202(b). These principal statements in ANILCA establish a legal framework where authority and responsibility for managing wildlife on national preserves are shared between the State and Federal governments. In a separate section of the statute, ANILCA addresses the management of wildlife on national preserves specifically. 16 U.S.C. 3201. It begins by directing the NPS to administer national preserves as units of the National Park System in the same manner as national parks, provided that hunting and trapping must be allowed in accordance with State and Federal law and regulation. All units of the National Park System are governed by the NPS Organic Act, which, among other things, establishes a general mandate to conserve wildlife. 54 U.S.C. 100101(a). The NPS therefore must manage wildlife on national preserves to allow sport hunting, but in a manner that is consistent with the NPS Organic Act, and by inference NPS policies implementing the NPS Organic Act related to the taking of wildlife in System units. See NPS Management Policies section 4.4.3. ANILCA further states that the Secretary of the Interior (acting through the NPS) may promulgate regulations restricting sport hunting and trapping in national preserves after consultation with the State. 16 U.S.C. 3201. This section states specifically that the NPS may designate zones where and periods when no hunting or trapping may be permitted for reasons of public safety, administration, floral and faunal protection, or public use and enjoyment. 16 U.S.C. 3201. This provision does not narrow the NPS's general regulatory authority under ANILCA, 16 U.S.C. 3124, or its general authority to manage wildlife in national preserves; rather it provides specific authority for geographic or temporary closures to hunting or trapping, which complements the NPS's broader regulatory authority. ANILCA authorizes the NPS to promulgate reasonable regulations concerning the take of wildlife in national preserves that are consistent with the mandates of the NPS Organic Act. ANILCA does not require that the NPS defer to State hunting regulations in all instances. This rule does not interfere with the State's authority and responsibility to manage wildlife on national preserves. It prohibits one specific harvest practice on national preserves. The vast majority of State regulations are, and are expected to remain, the governing laws concerning sport hunting in national preserves. This rule is consistent with ANILCA by preserving the status quo that the responsibility and authority for managing wildlife on public lands in Alaska is shared between the State and Federal governments.

5. Comment: Several commenters stated that the term “sport,” as used in 16 U.S.C. 3201 and elsewhere in ANILCA, only serves to differentiate between subsistence and non-subsistence take of wildlife in national preserves.

NPS Response: The NPS explains the basis for its interpretation of the term “sport,” and its incorporation of fair chase principles above. In short, this interpretation is more appropriate than the minimal meaning given to the term in the 2020 Rule, because it recognizes the decision by Congress to use the specific term “sport” and is therefore more consistent with principles of statutory interpretation, and it also adheres more closely to the intent of Congress to provide a preference for subsistence harvest under title VIII of ANLICA.

6. Comment: Several commenters stated that it is inappropriate to give meaning to the term “sport” in a manner that restricts harvest by individuals for subsistence purposes under state law.

NPS Response: These commenters conflate harvest for subsistence under Federal regulations implementing title VIII of ANILCA and harvest for subsistence under state law throughout Alaska, including on national preserves. The NPS acknowledges that some individuals who harvest wildlife in national preserves are doing so primarily for food, and many may have long standing family traditions doing so. Regardless of the hunter's intent or purpose, however, and regardless of how the State of Alaska labels hunting under state law, ANILCA allows individuals to take wildlife in national preserves for two reasons only: (1) for Federal subsistence uses under title VIII; or (2) for “sport purposes.” 16 U.S.C. 3201. It would be inappropriate for the NPS to allow harvest in national preserves for any purpose that is not identified in ANILCA.

7. Comment: One commenter stated that the NPS lacks authority to preempt state regulations for managing wildlife because of statements in 43 CFR part 24 about state authority over fish and wildlife, including on Federal lands within a state.

NPS Response: The NPS disagrees with this interpretation of 43 CFR part 24. This part recognizes state authority over wildlife in units of the National Park System. The provisions in this part, however, are policy statements that do not state or suggest that states have plenary or exclusive authority over wildlife in System units. To the contrary, they outline a policy recognizing the shared responsibility of states and the Federal Government for the management of wildlife, and specifically reaffirm Federal authority.

8. Comment: One commenter stated that because national preserve lands were withdrawn after Statehood, that NPS lacks authority to adopt the harvest restrictions in this rule. This commenter further stated that ANILCA removes the NPS's authority to promulgate this rule in 16 U.S.C. 3122 and 3125.

NPS Response: These comments fail to acknowledge ANILCA's recognition of the Secretary of the Interior's authority, acting through the NPS, in ANILCA 16 U.S.C. 3201, to restrict sport hunting and trapping in national preserves. Some of these comments acknowledge that this section allows the NPS to completely close an area to all hunting, but then argue that NPS lacks authority to close an area to a specific type of hunting ( e.g., taking bears over bait). The NPS finds this argument without merit under the plain text of section 3201 for two reasons: first, to the extent these comments argue that section 3201 only allows complete closures, the NPS believe that these are complete closures to these specific forms of hunting, and second, the more logical reading of section 3201 is that if the NPS can prevent a type of hunting by completely closing an area to all harvest, surely it can prevent the same activity through less-restrictive measures that fall short of a complete closure.

9. Comment: Several comments argued it is inappropriate for the NPS to manage harvest for federally qualified subsistence differently than harvest by others and specifically questioned the appropriateness of allowing Federal subsistence users to bait bears with natural food items and prohibiting others from doing so under state regulations.

NPS Response: The importance of subsistence is readily apparent in ANILCA. It is specifically identified as one of the primary purposes of the statute in section 3101(c), and there is an entire title in ANILCA devoted to allowing and managing this practice, recognizing the importance of subsistence not just for food but as a cultural practice. Furthermore, the text of ANILCA requires the NPS to prioritize subsistence take in national preserves.

With respect to bear baiting specifically, there are additional reasons to treat title VIII subsistence users differently. As mentioned elsewhere, subsistence brings a different set of values than harvest for sport purposes. In addition to valuing an economy of effort (as opposed to fair chase), subsistence values maximized use of resources. To that end, it is contrary to traditional harvest practices to use commercial food products to attract wildlife for harvest. Subsistence users traditionally harvested bears over remains from the kill of an ungulate that could not be harvested or salvaged. The NPS acknowledges that these natural items, which are authorized for Federal subsistence users in national preserves, can similarly attract bears, but would be left behind at the site of harvest. It is reasonable to allow this practice for a priority user group that fundamentally operates under a different set of values because (1) the number of federally qualified subsistence users is much smaller than those that could participate under state regulations, (2) offering a traditional harvest opportunity to subsistence users is more consistent with ANILCA's emphasis on the importance of subsistence, (3) bears are exposed to these items as part of their natural history and far less likely to associate them with humans, and (4) natural foods degrade more quickly. For these reasons, this allowance recognizes rural subsistence priority and reduces the safety risk posed by the authorization for non-subsistence users.

10. Comment: Comments were received stating that NPS inappropriately described the subsistence authorization in preserves by referring to “local rural residents.”

NPS Response: NPS is not proposing to modify the existing statutory and regulatory construct pertaining to harvest of wildlife in national preserves. Under 36 CFR 13.410, subsistence uses are authorized in national preserves in Alaska by “local rural residents.”

11. Comment: Several commenters stated that this rule is “substantially the same” as a rule promulgated by the U.S. Fish and Wildlife Service (FWS) in 2016 (81 FR 52248, August 5, 2016) (the Refuges Rule), which was disapproved by a joint resolution of the U.S. Congress in 2017 under the Congressional Review Act (CRA). 5 U.S.C. 801(b)(2); see Public Law 115-20, 131 Stat. 86. As a result, these commenters asserted that the CRA prohibits the NPS from promulgating this rule.

NPS Response: The NPS considered whether the final rule is “substantially the same” as the Refuges Rule and determines that it is not. As a threshold matter, a rule promulgated by a different bureau regarding different lands that are managed according to different legal standards is not “substantially the same.” The Refuges Rule addressed national wildlife refuge lands in Alaska managed by the FWS according to, among other authorities, ANILCA, the National Wildlife Administration Act of 1966 as amended by the National Wildlife Refuge System Improvement Act of 1997, and the 1964 Wilderness Act. The final rule, in contrast, addresses national preserves administered by the NPS according to the NPS Organic Act and ANILCA.

In addition to the fundamentally different legal regimes covering the different lands, they are also very different in scale and geographic scope. National wildlife refuge lands in Alaska comprise 54 million acres whereas national preserves comprise less than half that acreage (22 million acres). There is zero physical overlap between National wildlife refuge lands and national preserves in Alaska, meaning that nothing in the final rule changes the regulatory landscape, in any way, on a single acre of land that was previously governed by the Refuges Rule. This sort of geographic non-overlap has already been recognized by the Ninth Circuit as support for a conclusion that two rules are not “substantially the same” within the meaning of the Congressional Review Act. See Safari Club Int'l v. Haaland, 31 F.4th 1157, 1170 (9th Cir. 2022).

Even setting aside the fact the two rules were issued by different bureaus, under different statutory authorities, on different lands, the two rules also have significant substantive differences. The substantive difference between this rule and the Refuges Rule is evidenced by the fact that the NPS and the FWS have promulgated separate rules regarding take of wildlife in national preserves and refuges, respectively. In 2015, NPS submitted the 2015 Rule under the CRA months before FWS submitted the Refuges Rule. Only one joint resolution of disapproval was passed and enacted, disapproving of the Refuges Rule.

Additionally, this final rule only prohibits the practice of baiting bears (black and brown) based on primarily on public safety risk to visitors, whereas the Refuges Rule prohibited several practices in addition to the baiting of brown bears, and also allowed the continuance of black bear baiting. The Refuges Rule was based on concerns for maintaining natural diversity, whereas this final rule for national preserves in Alaska is based predominantly on public safety. As discussed above, recent factual information from bear experts led the NPS to determine it is necessary to take action to mitigate public safety concerns that stem from bear baiting. While additional concerns outlined in this rule also support a prohibition on bear baiting, the risk to the visiting public, which could be catastrophic, is the primary justification.

The Refuges Rule included a prohibition on several hunting or predator-control practices that are not addressed by this final rule. These included prohibitions on using snares, nets, or traps to take any species of bear; taking wolves and coyotes during denning season (from May 1 through August 9); and taking bear cubs or sows with cubs. The Refuges Rule included a statement that predator control is prohibited on National Wildlife Refuges in Alaska unless specific determinations are made. None of these provisions are in this final rule.

NPS recognizes that it previously described certain aspects of the 2015 Rule as “nearly identical in substance” to the Refuges Rule. DOI, Alaska; Hunting and Trapping in National Preserves, 85 FR 35181 (June 9, 2020). In doing so, however, NPS did not intend to make any legal or factual determination or conclusion about the meaning of the phrase “substantially the same” in the Congressional Review Act. In addition, that prior statement from NPS failed to account for several of the significant differences between the previous rule and the Refuges Rule, as outlined above. Furthermore, this final rule has several additional substantive differences from both the previous rule and the Refuges Rule, including with respect to the coverage of different sorts of hunting practices and treatment of different bear species. So that prior statement does not change NPS's current view and determination that the final rule is not “substantially the same” as the Refuges Rule.

Accordingly, the NPS determines that the final rule is not “substantially the same” as the Refuges Rule within the meaning of the Congressional Review Act. 5 U.S.C. 801(b)(2).

12. Comment: Commenters stated that the NPS should allow bear baiting by individuals with disabilities because it is a more efficient and accessible method of harvest.

NPS Response: The NPS is primarily concerned in this rule with the risks that bear baiting poses for public safety, which are the same regardless of the abilities of the hunter.

13. Comment: Several commenters stated that predator harvest outside of a BOG-authorized intensive management plan is not predator control, as defined under State law.

NPS Response: The NPS acknowledges that the State and the NPS use different terminology for predator management. The State only considers actions implemented by plans authorized under its “intensive management” law as predator control. The term “intensive management” has no meaning under Federal law. The NPS is guided by NPS 2006 Management Policies, section 4.4.3, which prohibits the NPS from allowing others to engage in activities to reduce the numbers of native species for the purpose of increasing the numbers of harvested species ( i.e., predator control) on lands managed by the NPS.

14. Comment: Several commenters stated that predator harvest should be managed by the State to provide moose and caribou for harvest. Commenters stated that the purpose of predator harvest should be to meet harvest needs for moose and caribou and to sustain healthy populations.

NPS Response: 2006 NPS Management Policies, section 4.4.3, states that activities to reduce the numbers of native species for the purpose of increasing numbers of harvested species ( i.e., predator control) are not allowed on lands managed by the NPS. This policy applies to national preserves in Alaska notwithstanding any competing purposes for such activities, such as providing a sustained yield of ungulates for human use. While NPS is not including this policy language in the text of the final rule, it remains NPS policy that activities (including by the State) to decrease the number of native species for the purpose of increasing numbers of harvested species are not allowed on NPS managed lands.

15. Comment: Some commenters stated that coyotes are not native to Alaska and therefore do not deserve the same protection from harvest as other species that historically occupied the lands within the state.

NPS Response: Coyotes are native to North America, and while coyotes may not have historically occupied all of their current range, their expansion most likely occurred through natural processes. Consequently, the NPS manages coyotes in the same manner as other native species consistent with NPS Management Policies, sections 4.1, 4.4.1, 4.4.1.2, and 4.4.2.

16. Comment: Several commenters stated that harvesting swimming caribou is a traditional activity for people who are not federally qualified subsistence users and therefore should be allowed for those people. Commenters suggested that harvest levels for this activity are typically low and therefore have minimal impacts.

NPS Response: The NPS removed this provision from the final rule. As previously noted, the allowance for this practice is limited and this provision would have only applied on waters that are under NPS jurisdiction. See 36 CFR 1.2(f). NPS may reconsider taking action regarding this practice in the future.

17. Comment: Commenters stated that the NPS lacks authority to regulate the harvest of swimming caribou or taking wildlife from motorboats on waters where the NPS lacks jurisdiction.

NPS Response: NPS removed this provision from the final rule. As previously noted, this provision would have only applied to waters that are under NPS jurisdiction. See 36 CFR 1.2(f). NPS may reconsider taking action regarding this practice in the future.

18. Comment: Commenters suggested that prohibitions on methods of harvest should not apply uniformly across the state, and that there should be exceptions or deviations for specific regions of Alaska where those activities are traditional. One commenter suggested that the superintendents of national preserves should have discretionary authority to authorize these harvest practices where they are traditional.

NPS Response: Most of the methods of harvest prohibited by this rule are currently prohibited under state law. To the extent any of the practices are currently allowed under state law, they typically only apply to a limited number of preserves. While the NPS believes these practices are generally not appropriate for the reasons discussed above in the preamble to this rule, the NPS has decided against taking action at this time for all the practices except using bait, specifically to take bears. Additionally, park superintendents do have authority to prohibit or restrict these practices if they deem it necessary. For these reasons, NPS has decided not to adopt regulatory prohibitions on these practices at this time. NPS may consider addressing the other practices included in the proposed rule in the future.

19. Comment: Several commenters asked the NPS what it considers to be bait, and specifically whether it includes smokehouses and gut piles from legally harvested animals.

NPS Response: The NPS considers bait to be any attractant, natural or processed, that is specifically placed on the landscape with the intent of attracting an animal to facilitate harvest. Neither a smokehouse nor a gut pile unmoved from the location of harvest will be considered bait under this rule.

20. Comment: Several commenters stated there is no evidence that identifies a public safety risk associated with bear baiting and/or that any risk that does exist can be mitigated. Commenters stated that the internal NPS query about the risks of bear baiting was insufficient.

NPS Response: As discussed in detail above, bear baiting is broadly recognized in the field of bear management to pose a risk to public safety because (1) bears may defend a bait station in the same manner they would defend any other food resource; (2) food conditioning of bears may result in increased bear mortality and heightened risk to public safety and property; and (3) baiting, by its very design and intent, alters bear behavior. Due to these known risks and impacts, avoiding bears defending food resources and preventing bears from associating humans with food are central to the educational messaging of all government agencies that manage areas where bears exist. This is done to promote public safety and reduce the need to kill bears for reasons other than hunting. While mitigations to minimize the potential for negative consequences associated with bear baiting exist under State law, these mitigations do not adequately address safety concerns for the visiting public. The likelihood of a catastrophic consequence, including an injury or death, to a member of the public increases with the presence of a bait station.

21. Comment: Several commenters stated that bear baiting is a sporting practice due to the level of effort and skill required to be successful.

NPS Response: The public safety considerations associated with bear baiting are independent of the skill or effort associated with the practice. Bear baiting is not consistent with promoting visitor safety in national preserves.

22. Comment: Several commenters raised concerns with the level of outreach, collaboration, and consultation with the State, Tribal entities, and the public.

NPS Response: In addition to extending the public comment period for the proposed rule, the NPS did considerable outreach leading up to publication of the proposed rule and during the public comment period.

In the eight months prior to the publication of the proposed rule, the NPS informed the State, Tribal entities, and potentially affected user groups that the NPS was likely to reconsider the 2020 Rule through a new rulemaking. The NPS shared this information at numerous public meetings, including at BOG meetings, Subsistence Resource Commission meetings, Federal Subsistence Regional Advisory Council meetings, and Federal Subsistence Board meetings. The NPS shared this information at the 2022 Alaska Professional Hunters Association annual meeting that was attended by the State, on monthly coordination calls between the State and the DOI, and in one-on-one meetings between State and NPS leadership in Alaska. Beginning in April 2022, the NPS reached out to Tribes and ANCSA Corporations, and attended meetings with those groups to share information. As mentioned above, the NPS followed those efforts with a letter sent to Tribal entities inviting formal consultation. The NPS met with every Tribal entity that requested a meeting in the venue and format of their choosing to best facilitate meaningful engagement.

Following publication of the proposed rule, the NPS held three consultations meetings with the State, presented the proposed rule at numerous public meetings, including BOG meetings, Subsistence Resource Commission meetings, and Regional Advisory Council meetings.

23. Comment: Several commenters asked the NPS to allow the use of a firearm under a trapping license to dispatch a wounded or trapped animal. Some commenters asked the NPS to allow harvest of free-ranging furbearers with a firearm under a trapping license consistent with State regulations.

NPS Response: Existing NPS regulations define a trap as “a snare, trap, mesh, or other implement designed to entrap animals other than fish” and trapping as “taking furbearers under a trapping license” (36 CFR 13.1). These definitions create uncertainty about whether an individual can use a firearm to take a furbearer if authorized under a State trapping license, even though the NPS definition of a trap does not include a firearm. This rule addresses this uncertainty and in response to public comment the NPS has added an allowance in the final rule for the use of a firearm to dispatch a furbearer in limited circumstances, as explained above.

Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the OMB will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is significant. The NPS has assessed the potential costs and benefits of this rule in the report entitled “Cost-Benefit and Regulatory Flexibility Analyses: Alaska Hunting and Trapping Regulations in National Preserves” which can be viewed online at https://www.regulations.gov by searching for “1024-AE70.”

Executive Order 14094 amends Executive Order 12866 and reaffirms the principles of Executive Order 12866 and Executive Order 13563 and states that regulatory analysis should facilitate agency efforts to develop regulations that serve the public interest, advance statutory objectives, and be consistent with Executive Order 12866, Executive Order 13563, and the Presidential Memorandum of January 20, 2021 (Modernizing Regulatory Review). Regulatory analysis, as practicable and appropriate, shall recognize distributive impacts and equity, to the extent permitted by law.

Executive Order 13563 reaffirms the principles of Executive Order 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. Executive Order 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. The NPS has developed this rule in a manner consistent with these requirements.

This rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). This certification is based on the cost-benefit and regulatory flexibility analyses found in the report entitled “Cost-Benefit and Regulatory Flexibility Analyses: Alaska Hunting and Trapping Regulations in National Preserves” which can be viewed online at https://www.regulations.gov by searching for “1024-AE70.”

This rule is not a major rule under 5 U.S.C. 804(2) of the CRA. This rule:

(a) Does 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) Does 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 rule does not impose an unfunded mandate on Tribal, State, or local governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on Tribal, State, or local governments or the private sector. It addresses public use of national preserves and imposes no requirements on other agencies or governments. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq. ) is not required.

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

Under the criteria in section 1 of Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. As explained above, this rule is consistent with ANILCA by preserving the status quo that the responsibility and authority for managing wildlife on public lands in Alaska, including the harvest of wildlife for sport purposes in national preserves, is shared between the State and Federal governments. In developing the proposed and final rule, NPS sought and considered input from the State. A federalism summary impact statement is not required.

This rule complies with the requirements of Executive Order 12988. This rule:

(a) Meets the criteria of section 3(a) 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) requiring that all regulations be written in clear language and contain clear legal standards.

The DOI 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. The proposed rule was informed by feedback from Tribal entities. In January 2023, the NPS invited consultation with Tribes and ANCSA Corporations that would be most affected by this rule. The NPS met with all entities that requested a meeting and their input was considered in the development of this rule. The NPS has evaluated this rule under the criteria in Executive Order 13175 and under the Department's Tribal consultation and ANCSA Corporation policies. Because the rule does not restrict title VIII subsistence harvest and feedback from Tribes and ANCSA Corporations indicates these methods of harvest are not common, the rule will not have a substantial direct effect on federally recognized Tribes or ANCSA Corporation lands, water areas, or resources.

This rule does not contain information collection requirements, and a submission to the Office of Management and Budget under the Paperwork Reduction Act is not required. The NPS may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number.

The NPS prepared the EA evaluating the effects of this rule and issued the FONSI concluding that this 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 is not required because of the FONSI. The EA and FONSI considered new information as appropriate and responded to comments received during the public comment period and during consultation by analyzing impacts under a range of alternatives.

This rule is not a significant energy action under the definition in Executive Order 13211. The rule is not likely to have a significant adverse effect on the supply, distribution, or use of energy and has not otherwise been designated by the Administrator of Office of Information and Regulatory Affairs as a significant energy action. A Statement of Energy Effects is not required.

In consideration of the foregoing, the National Park Service amends 36 CFR part 13 as set forth below:

GSA is revising its Architectural Barriers Act Accessibility Standard to adopt the accessibility guidelines for pedestrian facilities in the public right-of-way dedicated to transportation, as defined in 41 CFR 102-76.100 (hereafter, pedestrian facilities in the public right-of-way), issued by the Access Board in its final rule “Accessibility Guidelines for Pedestrian Facilities in the Public Right-of-Way” that became effective on October 7, 2023 (36 CFR part 1190). 1 That final rule provides minimum guidelines for all newly constructed pedestrian facilities and altered portions of existing pedestrian facilities for pedestrian circulation and use in the public right-of-way. These guidelines, once adopted, will serve as the technical basis of enforceable standards issued by GSA under the Architectural Barriers Act of 1968, as amended (ABA), and would ensure that facilities used by pedestrians that are subject to the ABA, such as sidewalks and crosswalks constructed or altered in the public right-of-way by Federal, state, and local governments using Federal funds, are readily accessible to and usable by pedestrians with disabilities.

The purpose of the guidelines issued by the Access Board is to ensure that pedestrian facilities located in the public right-of-way to which the ABA applies (as defined in § 102-76.60) are readily accessible to and usable by persons with disabilities. As noted by the Access Board, these guidelines were developed with public input from disability advocacy organizations, technical experts, individual members of the public with disabilities, and Federal agencies.

The Federal Government, which seeks to be a leader in accessibility, has been without clear, specific, enforceable technical accessibility standards for pedestrian facilities in the public right-of-way that are subject to the ABA. The adoption of the Access Board's guidelines as part of GSA's Architectural Barriers Act Accessibility Standard will create and support a consistent Federal standard to ensure accessibility in the public right-of-way.

The statutory underpinning for this rule is 42 U.S.C. 4152, which directs the Administrator of General Services to prescribe standards for the design, construction, and alteration of buildings (other than certain residential structures, and facilities of the Department of Defense and the United States Postal Service) to ensure, to the maximum extent feasible, that persons with disabilities have ready access to, and use of, such buildings.

The GSA standard would ensure that pedestrian facilities covered by the ABA in the public right-of-way would adhere to the Access Board's accessibility guidelines for pedestrian facilities in the public right-of-way. All other facilities that are referenced in 41 CFR 102-76.65 would be covered by the ABA standard previously issued by GSA.

Key accessibility features of pedestrian facilities in the public right-of-way covered by the GSA standard would include:

The GSA standard is applicable to new construction and alterations of pedestrian facilities subject to the ABA as stated in 41 CFR 102-76.60 that are on public land acquired for or dedicated to transportation purposes, or on other land where there is a legally established right for use by the public for transportation purposes. 2

Adopting this standard is another way for GSA to formalize its commitment to ensure accessibility for persons with disabilities by creating more accessible features in the public right-of-way.

Also, adopting this standard as part of its Architectural Barriers Act Accessibility Standard furthers GSA's commitment to Diversity, Equity, Inclusion, and Accessibility, as included in GSA's Strategic Plan  3 and implementation of Executive Orders 13985, 4 14035, 5 and 14091. 6 GSA's plan advances accessibility in many ways, but, in particular, through outreach to persons with disabilities. By adopting the guidelines for pedestrian facilities in the public right-of-way as part of its Architectural Barriers Act Accessibility Standard, GSA is directly addressing its policy of outreach to persons with disabilities by requiring enhanced accessible features to help ensure a more welcoming and accessible path to Federal facilities covered under § 102-76.65(a).

GSA is adding §§ 102-76.100 through 102-76.125 to subpart C of part 102-76 of the FMR to incorporate the Access Board's “Accessibility Guidelines for Pedestrian Facilities in the Public Right-of-Way” final rule, which became effective on October 7, 2023 (36 CFR part 1190), as part of its Architectural Barriers Act Accessibility Standard. If GSA did not adopt the Access Board's guidelines into its ABA standard, the status quo would be that GSA and every other entity that is subject to the ABA would continue to work with the various state and local guidelines and standards. By adopting these guidelines, GSA is endorsing a consistent standard applied to pedestrian facilities in the public right-of-way. This will reduce confusion and enhance accessibility for facilities subject to the ABA.

During the first and subsequent years after publication of the rule, new construction employees and alteration and renovation employees (which include a combination of project managers and subject matter experts (SME)) must comply with the standards for pedestrian facilities in the public right-of-way. These employees will conduct an accessibility standards comparison review on applicable projects between state and local accessibility standards and Federal accessibility standards. GSA estimates this cost by multiplying the time required to review the regulation and guidance implementing the rule by the estimated hourly compensation. For the following calculations, GSA calculates the estimated hourly compensation  7 using the U.S. Office of Personnel Management's 2023 General Schedule (GS) Rest of United States Locality Pay Table, 8 a full fringe benefit cost factor of 36.25 percent  9 and an overhead cost factor of 12 percent as provided by Office of Management and Budget (OMB) Circular A-76. 10 GSA assumes the new construction employees and the alteration and renovation employees will, on average, stay consistent in the subsequent years. 11 After publication of the rule, GSA anticipates additional construction costs will be incurred related to the accessibility improvements from this standard for applicable projects. GSA estimates this additional construction cost by multiplying the average construction costs by the accessibility improvements cost as a percentage of total construction cost. Below is a list of costs that GSA anticipates the Government will incur. GSA does not anticipate any costs to the public.

The Government must educate its new construction employees and alteration and renovation employees on projects where the standard may apply through a governmentwide outreach to increase their familiarity with the standard. Below is a list of training and communication activities related to regulatory familiarization and compliance that GSA anticipates will occur. GSA assumes costs related to the development and updating of training materials are de minimis because the training materials to be used are already developed and updated and not as a result of this rule. 12

GSA assumes it will take 1 GSA accessibility SME on average, with a GS-14 step 5 (as presumed based on prior experiences by the SME in the National Accessibility Office of GSA) with an average hourly rate of $93.70/hour, 2 hours in year 1 to review the Accessibility Guidelines for Pedestrian Facilities in the Public Right-of-Way training content for new construction employees and alteration and renovation employees on projects where the standard applies. Therefore, GSA estimates the total annual estimated cost for this part of the rule for year 1 to be $187 (= 1 × $93.70 GS-14 step 5 rate × 2 hours).

GSA assumes it will take 1 GSA accessibility SME on average, with a GS-14 step 5 (as presumed based on prior experiences by the SME in the National Accessibility Office of GSA) with an average hourly rate of $93.70/hour, 0.5 hour in years 2 through 10 to review the updated Accessibility Guidelines for Pedestrian Facilities in the Public Right-of-Way training content for new construction employees and alteration and renovation employees on projects where the standard applies. Therefore, GSA estimates the total annual estimated cost for this part of the rule for years 2 through 10 to be $47 (= 1 × $93.70 GS-14 step 5 rate × 0.5 hour).

GSA assumes it will take 1 GSA attorney on average, with a Senior Executive Level (SES) Level 3 (as presumed based on prior experiences by the SME in the National Accessibility Office of GSA) with an average hourly rate of $138.52/hour, 4 hours in year 1 to review the Accessibility Guidelines for Pedestrian Facilities in the Public Right-of-Way training content for new construction employees and alteration and renovation employees on projects where the standard applies. Therefore, GSA estimates the total annual estimated cost for this part of the rule for year 1 to be $554 (= 1 × $138.52 SES Level 3 rate × 4 hours).

GSA assumes it will take 1 GSA attorney on average, with an SES Level 3 with an average hourly rate of $138.52/hour, 1 hour in years 2 through 10 to review the updated Accessibility Guidelines for Pedestrian Facilities in the Public Right-of-Way training content for new construction employees and alteration and renovation employees on projects where the standard applies. Therefore, GSA estimates the total annual estimated cost for this part of the rule for years 2 through 10 to be $139 (= 1 × $138.52 SES Level 3 rate × 1 hour).

GSA assumes it will take 2 Access Board employees on average, with a GS-13 step 5 with an average hourly rate of $79.29/hour, 10 hours each in years 1 through 10 to deliver the Accessibility Guidelines for Pedestrian Facilities in the Public Right-of-Way training content to GSA new construction employees and alteration and renovation employees on projects where the standard applies. Therefore, GSA estimates the total annual estimated cost for this part of the rule for years 1 through 10 to be $1,586 (= 2 × $79.29 GS-13 step 5 rate × 10 hours).

GSA assumes it will take 200 Federal project managers and SMEs on average, with a GS-13 step 5 with an average hourly rate of $79.29/hour, 5 hours each in years 1 through 10 to receive the Accessibility Guidelines for Pedestrian Facilities in the Public Right-of-Way training content  13 on projects where the standard applies. Therefore, GSA estimates the total annual estimated cost for this part of the rule for years 1 through 10 to be $79,290 (= 200 × $79.29 GS-13 step 5 rate × 5 hours).

A breakdown of undiscounted total annual estimated Government training costs by year is provided in the table below.

New construction employees on projects where the Federal Government scope of work extends into the public right-of-way will need to conduct activities in compliance with the new standard. GSA anticipates additional construction costs will be incurred related to the accessibility requirements from this standard for applicable projects. Below is a list of compliance activities that GSA anticipates will occur.

GSA assumes it will take 200 Federal project managers and SMEs on average, with a GS-13 step 5 with an average hourly rate of $79.29/hour, 1.5 hours each in years 1 through 10 to conduct an accessibility standards comparison review between state and local accessibility requirements and Federal accessibility requirements for federally owned and leased-to-own new construction projects where the standard applies. Therefore, GSA estimates the total annual estimated cost for this part of the rule for years 1 through 10 to be $23,787 (= 200 × $79.29 GS-13 step 5 rate × 1.5 hours).

GSA assumes the additional construction cost that will be incurred related to the accessibility improvements from this standard for applicable projects by multiplying the average construction costs by the accessibility improvements cost as a percentage of total construction cost. Average construction costs are based on internal GSA historical data sources.

GSA assumes, based on recently completed projects of a similar nature within the last 10 years, 1 large-scale GSA facility project covered by ABA will be newly constructed every 5 years with an average construction cost of $300,000,000. GSA estimates, based on recently completed projects of a similar nature within the last 10 years, on average, the additional construction costs related to the accessibility improvements from this rule to be 0.35 percent of the total construction cost. Therefore, GSA estimates the total annual estimated cost for this part of the rule for years 1 and 6 to be $1,050,000 (= $300,000,000 × 0.35 percent).

GSA assumes, based on recently completed projects of a similar nature within the last 10 years, 2 smaller-scale GSA facility projects covered by ABA will be newly constructed every year with an average construction cost of $45,000,000. GSA estimates, based on recently completed projects of a similar nature within the last 10 years, on average, the additional construction costs related to the accessibility improvements from this standard to be 0.75 percent of the total construction cost. Therefore, GSA estimates the total annual estimated cost for this part of the rule for years 1 through 10 to be $675,000 (= 2 × $45,000,000 × 0.75 percent).

Due to the lack of readily available data that identifies the new construction profile of other Federal agencies impacted by this rule, GSA extrapolated the burden to other Federal agencies impacted by this rule. Based on GSA's Federal Real Property Profile Management System (FRPP MS) data  14 GSA comprises 36 percent of civilian building square footage. Therefore, GSA assumes GSA comprises 36 percent of Federal agency new construction and other Federal agencies comprise the remaining 64 percent of Federal agency new construction. GSA calculates an estimated new construction ratio of other Federal agencies to GSA to be 2 (= 64 percent/36 percent). 15 GSA assumes other Federal agencies impacted by this standard to have similar average construction costs.

GSA extrapolates, on average, that if GSA has 2 large-scale Federal facility projects covered by ABA newly constructed over a 10-year period, then by applying the ratio of 2, other Federal agencies will have an estimated 4 large-scale Federal facility projects covered by ABA newly constructed over a 10-year period. GSA assumes other Federal agencies impacted by this standard to have a similar average construction cost of $300,000,000 per project and a similar additional construction cost related to the accessibility improvements from this standard of 0.35 percent of the total construction cost. Therefore, GSA estimates the total annual estimated cost for this part of the rule for years 1, 4, 7, and 10 to be $1,050,000 (= $300,000,000 × 0.35 percent). 16

GSA extrapolates, on average, that if GSA has 2 smaller-scale Federal facility projects covered by ABA newly constructed every year, then by applying the ratio of 2, other Federal agencies will have an estimated 4 smaller-scale Federal facility projects covered by ABA newly constructed every year. GSA assumes other Federal agencies impacted by this standard to have a similar average construction cost of $45,000,000 per project and a similar additional construction cost related to the accessibility improvements from this standard of 0.75 percent of the total construction cost. Therefore, GSA estimates the total annual estimated cost for this part of the rule for years 1 through 10 to be $1,350,000 (= 4 × $45,000,000 × 0.75 percent).

A breakdown of the undiscounted total annual estimated cost by year is provided in the table below. 17

Alteration and renovation employees on projects where the government's scope of work is affected by the standard will need to conduct activities in compliance with the new standard. GSA anticipates additional construction costs will be incurred related to the accessibility requirements from this standard for applicable projects. Below is a list of compliance activities that GSA anticipates will occur.

GSA assumes it will take 200 Federal project managers and SMEs on average, with a GS-13 step 5 with an average hourly rate of $79.29/hour, 1.5 hours each in years 1 through 10 to conduct an accessibility standards comparison review between state and local accessibility requirements and Federal accessibility requirements for federally owned alteration and renovation projects where the standard applies. Therefore, GSA estimates the total annual estimated cost for this part of the rule for years 1 through 10 to be $23,787 (= 200 × $79.29 GS-13 step 5 rate × 1.5 hours).

GSA assumes the additional construction cost that will be incurred related to the accessibility improvements from this standard for applicable projects by multiplying the average construction costs by the accessibility improvements cost as a percentage of total construction cost. Average construction costs are based on internal GSA historical data sources.

GSA assumes, on average, 1 GSA alteration and renovation facility project covered by ABA will be constructed every 5 years with an average construction cost of $5,000,000. GSA estimates, based on recently completed projects of a similar nature within the last 10 years, on average, the additional construction costs related to the accessibility improvements from this rule to be 5 percent of the total construction cost. Therefore, GSA estimates the total annual estimated cost for this part of the rule for years 1 and 6 to be $250,000 (= $5,000,000 × 5 percent). 18

Due to the lack of readily available data that identifies the alteration and renovation profile of other Federal agencies impacted by this rule, GSA extrapolated the burden to other Federal agencies impacted by this rule. To estimate the aggregate burden to other Federal agencies impacted by this rule, GSA assumes other Federal agencies impacted by this rule to have a similar alteration and renovation profile to GSA's. Based on GSA's FRPP MS data  19 GSA comprises 36 percent of civilian building square footage. Therefore, GSA assumes GSA comprises 36 percent of Federal agency alteration and renovation construction and other Federal agencies comprise the remaining 64 percent of Federal agency alteration and renovation construction. GSA calculates an estimated alteration and renovation construction ratio of other Federal agencies to GSA to be 2 (= 64 percent/36 percent). 20 GSA assumes other Federal agencies impacted by this standard to have similar average construction costs.

GSA extrapolates, on average, that if GSA has 2 alteration and renovation Federal facility projects covered by ABA over a 10-year period, then by applying the ratio of 2, other Federal agencies will have an estimated 4 alteration and renovation Federal facility projects covered by ABA over a 10-year period. GSA assumes other Federal agencies impacted by this standard to have a similar average construction cost of $5,000,000 per project and a similar additional construction cost related to the accessibility improvements from this standard of 5 percent of the total construction cost. Therefore, GSA estimates the total annual estimated cost for this part of the rule for years 1, 4, 7, and 10 to be $250,000 (= $5,000,000 × 5 percent). 21

A breakdown of the undiscounted total annual estimated cost by year is provided in the table below. 22

A breakdown of undiscounted total estimated Government costs by year is provided in the table below.

The discounted estimated total overall cost over a 10-year period is $25,163,860 at a 3 percent discount rate and $20,885,096 at a 7 percent discount rate, as there is no direct cost to the public under this rule. The following is a summary of the estimated costs calculated for a 10-year time horizon at a 3 and 7 percent discount rate:

Additional benefits that arise from GSA adopting the guidelines issued by the Access Board relate to safety and accessibility for pedestrians. Shortening travel distances from on-street parking to building entrances will enhance the accessibility of buildings for people with mobility-related disabilities while also being more efficient for everyone who uses street parking. It will also support the mobility of people with disabilities by increasing the sidewalk sizes and by regulating the ground slope at passenger loading zones to prevent them from being too steep. Wider sidewalks will increase the ease of maneuverability when passing people on the sidewalk and, thereby, reduce accidental collisions, as well as better accommodate mobility aids, such as, but not limited to, walkers, rollators, and both manual and electric wheelchairs. Further, requirements for better audio and tactile warning systems, including, but not limited to, audio signal warnings, truncated domes, and detectable warning pavers, will increase safety for some pedestrians with disabilities by alerting them to an imminent street crossing or to when they have the right-of-way to cross the street. These improvements also reduce anxiety for pedestrians when transitioning from a sidewalk to a street crosswalk.

In the Access Board final rule, section 7A, the Final Regulatory Impact Analysis, concluded that the rule, which covers state, local, and Federal public rights-of-way, would result in approximately $15.5 billion in annualized benefits compared to $196.7 million in annualized costs, using a 7% discounting rate.

The preferred process is the process laid out in the analysis above. However, GSA has analyzed two alternatives to the preferred process.

Alternative 1: GSA could decide to take no regulatory action. No action from the Government would prevent GSA from adopting the guidelines issued by the Access Board. The Government would not incur the additional costs associated with this final rule; however, the benefits of having a consistent Federal ABA standard for the accessibility of pedestrian facilities in the public right-of-way outweigh the costs. As a result, GSA rejected this alternative.

Alternative 2: GSA could adopt as an alternative more stringent accessibility standards. However, adopting more stringent accessibility standards would result in a higher cost than what is currently estimated. Multiple standards may also cause confusion as to the application of the Access Board's accessibility guidelines. As a result, GSA rejected this alternative.

E.O. 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), directs 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). E.O. 13563, “Improving Regulation and Regulatory Review” (76 FR 3821, January 21, 2011), emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. E.O. 14094, “Modernizing Regulatory Review” (88 FR 21879, April 11, 2023), amends section 3(f) of E.O. 12866 and supplements and reaffirms the principles, structures and definitions governing contemporary regulatory review established in E.O. 12866 and E.O. 13563. The OMB Office of Information and Regulatory Affairs (OIRA) has determined that this rule is a significant regulatory action and, therefore, it was reviewed under subsection 6(b) of E.O. 12866.

OIRA has determined that this rule is not a “major rule” under 5 U.S.C. 804(2). Subtitle E of title II of the Small Business Regulatory Enforcement Fairness Act of 1996 (codified at 5 U.S.C. 801-808), also known as the Congressional Review Act or CRA, generally provides that before a rule may take effect, unless excepted, 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. This rule is excepted from CRA reporting requirements prescribed under 5 U.S.C. 801, as it relates to agency management or personnel under 5 U.S.C. 804(3)(B).

This final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., because it applies to agency management or personnel. This final rule is also exempt from the Administrative Procedure Act pursuant to 5 U.S.C. 553(a)(2) because it applies to agency management or personnel. Therefore, a Final Regulatory Flexibility Analysis was not performed.

This rulemaking is exempt from the advance notice-and-comment and delayed-effective-date requirements of the Administrative Procedure Act pursuant to 5 U.S.C. 553(a)(2) because this rulemaking relates to agency management or personnel or to public property, loans, grants, benefits, or contracts. This rulemaking applies to public property and how it relates to the public right-of-way so that the public property is accessible for persons with disabilities.

The Paperwork Reduction Act does not apply because the changes to the FMR do not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors or members of the public, that require the approval of OMB under 44 U.S.C. 3501 et seq.

GSA is proposing to add a new provision on severability at 41 CFR 102-76.125, which states that all provisions included in subpart C of part 102-76 are separate and severable from one another.

If any particular term or provision in subpart C of part 102-76, or the application thereof to any agency or circumstance, is determined by a court of competent jurisdiction to be invalid or unenforceable, the remaining terms or provisions, or the application of such term or provision to agencies or circumstances other than those to which it is invalid or unenforceable, will not be affected thereby, and each term and provision of this rule will be valid and be enforced to the fullest extent permitted by law. For example, if any provision relating to the Architectural Barriers Act Accessibility Standard for pedestrian facilities in the public right-of-way is determined to be invalid, the other provisions of the Architectural Barriers Act Accessibility Standard, including the standards for pedestrian facilities, would remain in full force and effect.

Further, any cross-references that appear throughout subpart C of part 102-76 are duplicative and are intended only to make the regulations more user-friendly. Invalidation of a particular provision that is cross-referenced elsewhere will not materially alter the provision that contains the cross-reference.

In summary, removal of any particular provision from subpart C of part 102-76 would not render the entire regulatory scheme unworkable. Thus, GSA considers each of the provisions in subpart C of part 102-76 to be separate and severable from one another. In the event of a stay or invalidation of any particular provision, it is GSA's intention that the remaining provisions will continue in effect.

For the reasons set forth in the preamble, GSA amends 41 CFR part 102-76 as set forth below:

This is a summary of the Commission's Order on Reconsideration ( Order ), in MB Docket Nos. 19-310, 17-105, FCC 24-66, adopted on June 5, 2024, and released on June 10, 2024. The full text of this document is available electronically via the search function on the FCC's Electronic Document Management System (EDOCS) web page at https://docs.fcc.gov/public/attachments/FCC-24-66A1.pdf. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov (mail to: fcc504@fcc.gov ) or call the FCC's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

1. By this Order, we grant the Petition for Reconsideration of REC Networks, the musicFIRST Coalition, and the Future of Music Coalition (Petitioners) requesting that the Commission reinstate § 73.3556 of the Commission's rules (the radio duplication rule) for commercial FM stations. We find that reinstating the prohibition on the duplication of FM programming beyond a 25% threshold serves the public interest by furthering the goals of competition, programming diversity, localism, and spectrum efficiency. We also find that the existing waiver process should address sufficiently the concerns of specific FM stations in unique circumstances.

2. The Commission's radio duplication rule has evolved over time consistent with changes in the broadcast radio market. The Commission first limited the duplication of programming by commonly owned radio stations serving the same local area in 1964 when it prohibited FM stations in cities with populations over 100,000 from duplicating the programming of a co-owned AM station in the same local area for more than 50% of the FM station's broadcast day. The Commission observed that it had never regarded program duplication as an efficient use of FM frequencies; instead, it had allowed program duplication as, “at best, . . . a temporary expedient to help establish the FM service.” Accordingly, the Commission envisioned “a `gradual' process to end programming duplication once the number of applicants seeking licenses exceeded the number of vacant FM channels available in large cities.”

3. In 1976, the Commission tightened the radio duplication restriction. It limited FM stations to duplicating only 25% of the average program week of a co-owned AM station in the same local area if either the AM or FM station operated in a community with a population of over 25,000. Based on its 12 years of experience observing the effects of the radio duplication rule, the Commission delayed implementation of the tightened 25% limit on smaller cities for approximately four years, establishing interim limits that prohibited FM stations from duplicating more than 25% of average broadcast week programming of a commonly owned AM station in communities over 100,000 and 50% of programming of a commonly owned AM station in communities over 25,000 but under 100,000. At that time, the Commission observed that “the public does not have to depend on non-duplication to add diversity” when new broadcasting frequencies remain available. In 1986, in response to a petition for rulemaking seeking to exempt late-night hours when determining compliance with the radio duplication rule, the Commission eliminated the cross-service radio duplication rule entirely. It found that FM service had developed sufficiently to support the elimination of the rule and that FM stations were fully competitive, obviating the need to foster the development of an independent FM service through a requirement for separate programming.

4. In 1992, as part of a broad proceeding reviewing its national and local radio ownership rules, the Commission adopted a new radio duplication rule limiting the duplication of programming by commonly owned stations or stations commonly operated through a time brokerage agreement in the same service (AM or FM) with substantially overlapping signals to 25% of the average broadcast week. The Commission saw no public benefit to allowing commonly owned same-service stations in the same local market to duplicate more than 25% of their programming, observing that: “. . . when a channel is licensed to a particular community, others are prevented from using that channel and six adjacent channels at varying distances of up to hundreds of kilometers. The limited amount of available spectrum could be used more efficiently by other parties to serve competition and diversity goals.” The Commission concluded, however, that limited programming duplication—specifically, below the 25% threshold—had benefits, stating “we are persuaded that limited simulcasting, particularly where expensive, locally produced programming such as on-the-spot news coverage is involved, could economically benefit stations and does not so erode diversity or undercut efficient spectrum use as to warrant preclusion.”

5. The Commission issued the NPRM initiating this proceeding in November 2019, seeking comment on the radio duplication rule and whether it should be retained, modified, or eliminated. As the Commission noted in the NPRM, the broadcast industry has changed significantly since the Commission adopted the latest version of the radio programming duplication rule in 1992. In particular, significant growth in the number of radio broadcasting outlets, the advent of digital HD Radio, and the evolution of new and varied formats in which to disseminate programming ( i.e., digital satellite radio, streaming via station websites, and mobile applications) have led to greater competition and programming diversity in radio broadcasting. Accordingly, the Commission asked commenters to address several issues, including the impact of market forces ( i.e., new sources of audio programming, increased number of stations, instances of consolidation in any aspect of the media marketplace) and the impact of the radio duplication rule on the Commission's public interest goals of competition, programming diversity, localism, and spectrum efficiency. The NPRM also sought comment on whether the Commission's prior rationale (in 1986) for eliminating the cross-service duplication programming rule—that duplication is preferable to curtailing programming or going off the air entirely where separate programming is not economically feasible—applies equally to the same-service duplication rule. The NPRM sought input on the benefits of allowing some level of programming duplication, as well as potential modifications to the rule. In addition, the NPRM asked whether the rule should treat stations in the AM service and the FM service differently in light of the particular economic and technical challenges facing AM stations. Finally, the NPRM asked commenters to discuss potential costs and benefits of modifying or eliminating the rule. Four parties filed comments in response to the NPRM, and two parties filed reply comments.

6. Prior to the Commission's elimination of the radio duplication rule for both AM and FM stations in August 2020, Commission staff publicly circulated a draft order that, if adopted, would have retained the rule for the FM band. The draft order concluded that the radio duplication rule for the FM service remained useful in furthering the goals of competition, programming diversity, localism, and spectrum efficiency. Among other things, the draft order concluded that the FM service does not face the same persistent challenges as the AM service, that the rule as applied to FM continued to “act as a useful guiderail” to encourage programming diversity and spectrum efficiency, and that the existing waiver process was sufficient to provide flexibility where needed.

7. Following public release of the draft order, NAB submitted a letter advocating for elimination of the rule for FM service as well as AM. In the letter, NAB asserted that elimination of the rule entirely would provide needed flexibility and benefits to FM licensees and ease the burdens NAB alleged were caused by the rule. For instance, NAB contended that FM station staffs forced to quarantine due to the pandemic could find it difficult to produce original programming. NAB further suggested that were the Commission to eliminate the rule, stations could pool resources to simulcast emergency information without incurring the delay of a waiver or could inform listeners of format changes by simulcasting their new formats on multiple stations. NAB went on to assert that the rule as applied to FM stations produced no public interest benefits, that FM stations face considerable competition, and that market forces would naturally give commonly owned stations an incentive to air distinct programming, all of which warranted eliminating the rule to allow FM stations to repurpose costly programming, quickly and effectively, where appropriate.

8. In contrast to the draft order, the final Order, as adopted by the Commission, eliminated the radio duplication rule for both AM and FM services. Explaining its reasoning for the elimination of the rule for AM stations in the final Order, the Commission stated that AM stations could better serve the needs of the public if they were afforded greater regulatory flexibility for innovative experimentation with digital radio. The Commission pointed to unique pressures facing the AM service, such as escalated environmental and man-made noise, which has increased levels of harmful interference. The Commission also stressed that unlike with FM service, the AM service faces higher operational costs due to the larger and more complex physical plants that are necessary to maintain the band. In removing the rule for FM stations, the Commission relied primarily on its desire to afford flexibility to respond to the exigencies of the ongoing COVID-19 national emergency. Stating that the elimination of the rule was necessary for stations to inform listeners of emergency information and formatting changes, the Commission also asserted that programming duplication would in most cases not become a “common practice,” but rather a short-term response to unique circumstances.

9. On November 20, 2020, REC Networks, the musicFIRST Coalition, and the Future of Music Coalition filed a petition for reconsideration asking that the Commission reinstate the radio duplication rule for FM stations. NAB filed an Opposition to the Petition on January 5, 2021. Common Frequency filed a Reply to the Opposition on January 14, 2021, and REC Networks, the musicFIRST Coalition, and the Future of Music Coalition did the same on January 15, 2021. Petitioners do not request that the Commission reinstate the radio duplication prohibition for AM stations.

10. As discussed further below, we reinstate § 73.3556 of our rules as to FM stations in order to further the goals of competition, programming diversity, localism, and spectrum efficiency. We find that Petitioners provide valid reasons to reconsider eliminating the radio duplication rule as applied to FM stations, and we conclude that the record supports reinstating the rule for FM service. Specifically, we find that the record does not provide sufficient evidence that the rule, as applied to FM service, has caused or will cause harm to FM licensees, that market forces alone would be sufficient to preserve the rule's benefits, or that the 25% duplication allowance set forth in the former rule and the potential to seek a waiver to exceed that allowance in the event of special circumstances is insufficient to provide FM licensees with flexibility where needed. Furthermore, contrary to NAB's assertion that unique economic pressures facing radio stations justified rescinding the rule for FM service, we find that the record lacks sufficient evidence to demonstrate that the rule actually contributes to such economic pressures or that eliminating the rule would reduce those pressures in any meaningful way. As a result, we believe that elimination of the rule for FM service in the final Order was, at best, premature given the absence of such evidence, and particularly as balanced against the countervailing public interest objectives the rule serves. Accordingly, we find that reinstating the radio duplication rule for FM service strikes the right balance between affording FM stations the ability to repurpose some amount of programming on commonly owned stations while continuing to further the public interest goals of competition, programming diversity, localism, and spectrum efficiency.

11. As an initial matter, we find that granting the Petition is within the Commission's discretion. Contrary to NAB's assertion that the Petition should be denied because it does not raise new issues that were not already addressed by the Commission in the Order, we reiterate that “Commission precedent establishes that reconsideration is generally appropriate where the petitioner shows either a material error or omission in the original order.” In this instance, we are persuaded that the Commission's prior decision erred in eliminating the radio duplication rule for FM stations. We note that Petitioners have questioned whether the process by which the Commission eliminated the rule with respect to FM service complied with the Administrative Procedure Act. Because we conclude that Petitioners make convincing arguments on the merits about the need to reinstate the rule for FM service to further the public interest goals of competition, programming diversity, localism, and spectrum efficiency, we need not reach Petitioners' separate arguments about whether to reinstate the rule based on alleged inadequacies in the process by which it was eliminated.

12. We conclude that the record does not demonstrate that eliminating the radio duplication rule as applied to the FM service serves the public interest, and we are persuaded that the Commission's earlier conclusion that it did so was in error. Although the Commission stated in the Order that “bare assertions as to the continued usefulness of the radio duplication rule for the FM service—for instance, that the rule ensures `some basic level of diversity and . . . prevent[s] spectrum warehousing'—are not persuasive,” we find that contrary conclusions used to justify eliminating the rule for FM service in fact rest on “bare assertions” derived from an exceedingly thin record proffered in support of that decision. Specifically, only a single commenter—NAB—advocated for elimination of the rule with regard to FM service. In so doing, NAB offered only general assertions regarding arguments supporting elimination of the rule for AM that it contended could also apply to FM and anecdotal suggestions that there could be select circumstances in which duplication would be “helpful” to FM stations. On reconsideration, we find NAB's claims about the harms the rule causes to be lacking in concrete or credible support. By contrast, we find comments describing the benefits the rule is intended to foster and the harms that would accrue in its absence support retaining the rule. Moreover, we find that, in the absence of more convincing evidence to assure us that elimination is wise at this time, there are various countervailing objectives that support reinstatement of the rule in the service of competition, programming diversity, localism, and spectrum efficiency, objectives that we find compelling for the reasons described herein.

13. Indeed, we find that the radio duplication rule acts as a useful guiderail in the FM service—where spectrum is in higher demand (than AM service) by consumers, advertisers, and owners—to encourage the diversification of programming on commonly owned FM stations, which then compete in the marketplace for listeners and advertisers. As Petitioners note, allowing duplication of FM programming beyond the 25% threshold can harm competition in the radio marketplace because, “[t]o the extent that larger clusters are allowed to slash programming costs by eliminating programming on one or more FM stations within a given single market, yet continue to sell advertising on such warehoused spectrum, it follows that competing independent radio stations in that shared market cannot take advantage of similarly drastic economies of scale.” We conclude that a quantifiable cap on duplication for FM stations properly balances stations' economic and practical needs to offer some duplication with consumers' needs for diverse and local programming, and addresses competition concerns as well. Given the potential economic incentives to duplicate programming ( e.g., cost cutting), we share Petitioners' concerns regarding the attendant harms to the public interest goals of diversity and localism—due to potential reduction of “local voices on local airwaves” providing “locally-relevant programming”—should we not reinstate the rule.

14. Regardless of any perceived benefits, we note that duplication of programming is an inherently inefficient use of spectrum. As recognized before by the Commission, where there is limited quantity of spectrum, duplication beyond a 25% allowance can be considered inefficient. While the Commission previously took the position that market forces give station owners an incentive to avoid duplicating programming that renders a prohibition on duplication unnecessary, on reconsideration we do not find sufficient evidence in the record to demonstrate that market forces would dictate against duplication above the rule's threshold in all, or even most, instances. Conversely, we find that the record provides at least some evidence of an incentive to duplicate programming where market forces apparently failed to prevent it. Notably, Kern Community Radio (Kern), a prospective non-commercial community broadcaster, stated that, in addition to the rebroadcast of programming being imported from outside the market, duplication also is occurring in its local market of Bakersfield, California. Given that other commenters failed to cite evidence either refuting or countering the market information provided by Kern, we are not convinced that the duplication in the Bakersfield-area market is somehow unique or isolated. While NAB notes that the radio duplication rule was eliminated three years ago, thus providing an opportunity to assess whether stations increased duplication after elimination of the rule, NAB provides no evidence on this point or otherwise refutes or counters the information in the record. Thus, we find that it was erroneous for the Commission to have ignored such evidence when it agreed with NAB in 2020 that stations obviously are incentivized by market forces not to duplicate, and relied on this reasoning to rescind the rule. While NAB contends that duplication could reduce the revenues that a station owner could otherwise earn by offering non-duplicative programming, duplication also allows a station owner to reduce costs substantially. Additionally, the ability to operate a station inexpensively using duplicative programming may, in fact, give a group station owner a disincentive to invest in new programming, or an incentive to occupy the frequency simply to avoid the potential introduction of a competitor. We find NAB's theoretical arguments are insufficient to support the conclusion that market forces alone would be adequate to protect against duplication in the FM band. While experience with the AM band may, over time, provide some evidence relevant to such theoretical questions, without more or better evidence in the record of this proceeding, we find that it was premature to extend elimination of the rule to FM in the Order.

15. We further find that the Commission erred in abolishing the duplication rule in the context of the pandemic ongoing at the time. On reconsideration, we find that the record fails to demonstrate that the 25% duplication allowance set forth in the former rule and the potential to seek a waiver to exceed that allowance would not sufficiently address exigent circumstances. When eliminating the radio duplication rule, the Commission stated that the COVID-19 national emergency “highlight[ed] the need to provide broadcasters increased flexibility to react nimbly to local needs, as circumstances have changed rapidly in different jurisdictions across the country since the beginning of the outbreak.” We acknowledge that there may be particular value in “allowing FM broadcasters to duplicate programming on a commonly owned station . . . in times of crisis, including the one our nation is currently undergoing” because “small broadcasters with fewer resources are especially vulnerable if one of their studio employees contracts the virus.” However, upon review we find that the record lacks sufficient evidence or examples of inefficiencies tied to the pandemic or other exigent circumstances that would justify permanent industrywide relief. In addition, the record lacks evidence that the existing 25% duplication allowance has proven to be insufficient for FM stations to respond to emergencies. Given what we believe to be the minimal burden of addressing by waiver what NAB terms, somewhat imprecisely, as “times of crisis,” and what we assume to be the relative infrequency of such occasions, we do not believe that burden outweighs the risks associated with essentially exempting FM stations from the nonduplication limitations on such a vague basis. However, we would expect to look favorably upon waivers premised on adequately documented weather or similarly unforeseen emergencies, sought promptly at the time of such emergencies.

16. As the Petitioners note, the COVID-19 national emergency is “a temporary event.” During this time, the Commission has taken a number of steps to accommodate Commission licensees and regulatees in light of disruptions to their businesses. As Petitioners state, “radio station owners whose financial struggles force a choice between duplicating programming or allowing one or more of their FM stations to go `dark' ” may seek a waiver to exceed the 25% duplication allowance. Overall, we find that the clear potential harms arising from the Commission's elimination of the rule—harms to competition, diversity, localism, and spectrum efficiency—when weighed against speculative potential benefits, if any, merit reinstating the rule for FM service. Benefits of rescinding the rule cited by NAB, including efficiencies in responding to emergencies, are inherently speculative. The record contains no evidence demonstrating that such efficiencies could not be achieved with the 25% duplication allowance and existing waiver options. Further, we reject NAB's suggestion that potential efficiency-related benefits can only be achieved through revocation of the rule entirely when adequate regulatory relief was previously provided for in the rule with the 25% duplication allowance.

17. Although the Commission previously expressed concerns regarding costs and delay associated with waiver requests to exceed the 25% duplication allowance based on special circumstances, we find on reconsideration that in fact there is no information in the record demonstrating that the waiver process has proven unreasonably burdensome. We acknowledge that any waiver process inherently entails some level of cost and delay, but those costs must be balanced against the harms, noted above, that could ensue were the rule eliminated entirely. On balance, we do not find evidence that the waiver process entails costs or delay so unreasonable as to outweigh the legitimate safeguards the rule provides. Indeed, NAB has failed to provide concrete evidence demonstrating that FM stations have struggled to respond to weather and other emergency events because of the need to seek a waiver, despite raising such a concern. We find that the rule provides stations a sufficient buffer under the 25% duplication allowance so that stations may react responsively and nimbly to emergencies, format changes, and other special circumstances that might warrant a temporary level of duplication. We agree with Petitioners that the wholesale elimination of the radio duplication rule for FM stations across the industry “shortchange[d] the careful tailoring and analysis available through the waiver process,” through which stations can seek relief. A waiver process exists precisely to account for temporary or unique circumstances that warrant a limited departure from the overall rule.

18. Finally, whatever the alleged or perceived economic challenges facing the FM service may be, we conclude that the record does not establish that elimination of the prohibition on duplication as it pertains to FM service is an appropriate, or likely to be an effective, means to address those challenges. In its support of the elimination of the duplication rule, NAB has repeatedly emphasized how FM stations have encountered significant financial stress—in part due to listener demands for higher fidelity in an “expanding universe” of platforms and economic shocks from COVID-19. However, as stated above, the rule was created in service of other objectives, which would be jeopardized in its absence. Moreover, we cannot conclude that the duplication rule's impacts are sufficiently tied to FM stations' economic and listenership challenges such that revocation of the rule entirely would meaningfully address these larger concerns. We find that the rule already provides adequate flexibility for those FM stations that choose partial or short-term duplication of programming in response to either economic challenges or other temporary emergency or reformatting needs.

19. We are not persuaded by NAB's ex parte request to pause this Order until the Commission first collects and analyzes new data on the nature and prevalence of programming duplication, and/or information regarding recent changes to stations' operations, since the Commission's elimination of the duplication rule. We note that NAB has not submitted such data. In any event, regardless of whether and to what extent duplication has begun to take place, it does not follow that the Commission should delay further the restoration of a useful guiderail. As noted above, in those instances where duplication is occurring or will occur in the future, and where there is a legitimate need for it, the 25% duplication allowance and waiver process will remain available to stations.

20. Although we reject calls to wait further to act, we provide a six-month grace period to the extent that some FM stations are currently employing duplication that exceeds the limits of the reinstated rule. In order to minimize possible service disruptions and burdens for these stations, and to provide them with an ample runway back to compliance with the reinstated rule, we will provide a six-month grace period after the rule's effective date to come into compliance. The six-month grace period will begin when the reinstated rule becomes effective thirty days after publication in the Federal Register . Consistent with this grace period, we strongly encourage any FM station that currently exceeds the duplication allowance, and that intends to seek a waiver, to submit its request for a waiver within the first ninety days after the new rule becomes effective. We believe that adherence to this timeframe will benefit such stations by permitting them to take advantage of the grace period and continue their current practices while any waiver request is under review. Nevertheless, we will permit FM stations currently employing duplication that exceeds the 25% duplication allowance to continue to transmit their programming in excess of the 25% duplication allowance unless and until the waiver request is denied. In the event that a waiver request is denied, we direct the Media Bureau to provide the licensee with additional time to come into compliance, not to exceed six months from wavier denial. In addition, we emphasize that the grace period and our guidance on waivers for those FM stations currently duplicating in excess of the 25% duplication allowance, as described directly above, does not preclude an FM station that later finds itself interested in pursuing a waiver from seeking one. The general process for seeking a waiver of the reinstated rule will continue to remain available beyond, and apart from, the grace period and ninety-day recommendation for requesting a waiver described in this paragraph.

21. In conclusion, we agree with Petitioners that the Commission erred by enacting a permanent rule change for the FM service when the existing duplication allowance and waiver option, adequately address issues that may arise. The reinstated rule will function as a useful guiderail promoting the public interest and will provide sufficient flexibility to serve the particularized needs of FM stations. For the reasons stated above, we find that any costs associated with reinstating the rule for FM service are outweighed by the benefits associated with the rule in furthering the public interest objectives of competition, programming diversity, localism, and spectrum efficiency. Accordingly, we grant the Petition and reinstate the radio duplication rule as to FM stations.

22. Supplemental Final Regulatory Flexibility Act Analysis. In compliance with the Regulatory Flexibility Act (RFA), this Supplemental Final Regulatory Flexibility Analysis (Supplemental FRFA) supplements the Final Regulatory Flexibility Analysis (FRFA) included in the Order, to the extent that changes adopted on reconsideration require changes to the information included and conclusions reached in the FRFA. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the NPRM that initiated this proceeding. The Commission sought written public comment on the proposals in the NPRM, including comment on the IRFA. The Commission received no comments in response to the IRFA. This present Supplemental FRFA conforms to the RFA.

23. Paperwork Reduction Analysis. This document does not contain new or revised information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13, (44 U.S.C. 3501 through 3520). In addition, therefore, it does not contain any new or modified “information burden for small business concerns with fewer than 25 employees” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, 44 U.S.C. 3506(c)(4).

24. Congressional Review Act. The Commission has determined, and the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget concurs, that this rule is “non-major” under the Congressional Review Act, 5 U.S.C. 804(2). The Commission will send a copy of the Order on Reconsideration to Congress and the Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).

25. Supplemental Final Regulatory Flexibility Act Analysis. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the NPRM that initiated this proceeding. The Commission sought written public comment on the proposals in the NPRM, including comment on the IRFA. The Commission received no comments in response to the IRFA. This present Supplemental FRFA conforms to the RFA.

26. The radio duplication rule prohibited any commercial AM or FM radio station from devoting “more than 25% of the total hours in its average broadcast week to programs that duplicate those of any other station in the same service (AM or FM) which is commonly owned or with which it has a time brokerage agreement if the principal community contours . . . of the stations overlap and the overlap constitutes more than 50% of the total principal community contour service area of either station.” In this Order on Reconsideration, we restore the radio duplication rule as applied to FM stations in order to better serve the public interest.

27. We find that the record does not demonstrate that eliminating the radio duplication rule as applied to the FM service serves the public interest, as the FM service does not face the same persistent challenges as the AM service that eliminating the rule for AM stations was intended to mitigate. We find that there are likely benefits to restoring the radio duplication rule for FM stations. The radio duplication rule will act as a useful guiderail in the FM service—where spectrum is especially scarce—to encourage the diversification of programming on commonly owned FM stations. Accordingly, we restore the radio duplication rule for FM stations, while recognizing the 25% duplication allowance and the potential to seek a waiver to exceed that allowance in the event of special circumstances will provide FM licensees with flexibility where needed.

28. There were no comments to the IRFA or FRFA filed.

29. Pursuant to the Small Business Jobs Act of 2010, which amended the RFA, the Commission is required to respond to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA), and to provide a detailed statement of any change made to the proposed rules as a result of those comments. The Chief Counsel did not file any comments in response to the proposed rules in this proceeding.

30. 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 is one which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA. The rule changes adopted herein will directly affect certain small radio broadcast stations, specifically commercial FM radio stations. Below, we provide a description of these small entities, as well as an estimate of the number of such small entities, where feasible.

31. Radio Stations. This industry is comprised of “establishments primarily engaged in broadcasting aural programs by radio to the public.” Programming may originate in their own studio, from an affiliated network, or from external sources. The SBA small business size standard for this industry classifies firms having $41.5 million or less in annual receipts as small. U.S. Census Bureau data for 2017 show that 2,963 firms operated in this industry during that year. Of this number, 1,879 firms operated with revenue of less than $25 million per year. Based on this data and the SBA's small business size standard, we estimate a majority of such entities are small entities.

32. The Commission estimates that as of March 31, 2024, there were 4,427 licensed commercial AM radio stations and 6,663 licensed commercial FM radio stations, for a combined total of 11,090 commercial radio stations. Of this total, 11,088 stations (or 99.98%) had revenues of $41.5 million or less in 2022, according to Commission staff review of the BIA Kelsey Inc. Media Access Pro Database (BIA) on April 4, 2024, and therefore these licensees qualify as small entities under the SBA definition. In addition, the Commission estimates that as of March 31, 2024, there were 4,320 licensed noncommercial (NCE) FM radio stations, 1,960 low power FM (LPFM) stations, and 8,913 FM translators and boosters. The Commission however does not compile, and otherwise does not have access to financial information for these radio stations that would permit it to determine how many of these stations qualify as small entities under the SBA small business size standard. Nevertheless, given the SBA's large annual receipts threshold for this industry and the nature of radio station licensees, we presume that all of these entities qualify as small entities under the above SBA small business size standard.

33. We note, however, that in assessing whether a business concern qualifies as “small” under the above definition, business (control) affiliations must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. In addition, another element of the definition of “small business” requires that an entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific radio or television broadcast station is dominant in its field of operation. Accordingly, the estimate of small businesses to which the rules may apply does not exclude any radio or television station from the definition of a small business on this basis and is therefore possibly over-inclusive. An additional element of the definition of “small business” is that the entity must be independently owned and operated. Because it is difficult to assess these criteria in the context of media entities, the estimate of small businesses to which the rules may apply does not exclude any radio or television station from the definition of a small business on this basis and similarly may be over-inclusive.

34. The Order on Reconsideration restores the radio duplication rule as applied to FM stations. Accordingly, the Order on Reconsideration reinstates prior reporting, recordkeeping, and compliance requirements for small entities. Therefore, the Order on Reconsideration will not impose additional obligations or expenditure of resources on small businesses.

35. 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 small entities.

36. In this proceeding, we reinstate the radio duplication rule for FM stations. This action reinstates prior reporting, recordkeeping, and compliance requirements for all commercial FM radio stations, including small entities. We determined in this Order on Reconsideration that reinstating the radio duplication rule for FM stations would better serve the public interest and anticipate that reinstatement of the rule will positively impact broadcasters, including small entities, and avoid the potential harms described by Petitioners. We believe that the reinstated rule for FM broadcasters affords small businesses sufficient flexibility under the 25% duplication allowance. Because we do not anticipate that a large number of broadcasters will exceed the allowance, we find that the allowance by itself provides adequate accommodation for small businesses. For those few cases in which FM stations would surpass the duplication allowance, we permit stations to submit waiver requests which specify the need for and special circumstances justifying duplication beyond the allowance. For those FM stations that duplicate programming in excess of the 25% duplication allowance, we will provide a six-month grace period to come into compliance with the reinstated rule. The period will begin when the reinstated rule becomes effective thirty days after publication in the Federal Register . In addition, we direct the Media Bureau to provide the licensee with additional time to come into compliance, not to exceed six months if a duplication waiver request is denied. We conclude that extending such flexibility to FM stations, especially for small entities, will mitigate some of the compliance burdens associated with the rule change. Taken together, these provisions allow for all stations, no matter their size and resources, to comply with the rule without being unduly burdened.

37. The Commission will send a copy of this Order on Reconsideration, including this Supplemental FRFA, in a report to Congress and the Government Accountability Office pursuant to the Small Business Regulatory Enforcement Fairness Act of 1996. In addition, the Commission will send a copy of the Order on Reconsideration, including the Supplemental FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the Order on Reconsideration and Supplemental FRFA (or summaries thereof) will also be published in the Federal Register .

38. None.

39. Accordingly, it is ordered that, pursuant to the authority found in sections 1, 4(i), 4(j), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), and 303(r), this Order on Reconsideration is adopted and will become effective thirty days after publication in the Federal Register .

40. It is further ordered that the Petition for Reconsideration filed by REC Networks, the musicFIRST Coalition, and the Future of Music Coalition is granted.

41. It is further ordered that, pursuant to the authority found in sections 1, 4(i), 4(j), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), and 303(r), the Commission's rules are amended as set forth in Appendix A and such rule amendment will become effective thirty days after publication in the Federal Register .

42. It is further ordered that the Commission's Office of the Secretary, shall send a copy of this Order on Reconsideration, including the Supplemental Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

43. It is further ordered that, pursuant to section 801(a)(1)(A) of the Congressional Review Act, 5 U.S.C. 801(a)(1)(A), the Commission's Office of the Managing Director, Performance Program Management shall send a copy of the Order on Reconsideration to Congress and to the Government Accountability Office.

44. It is further ordered that, should no petitions for reconsideration or petitions for judicial review be timely filed, MB Docket No. 19-310 shall be terminated and its docket closed.

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

This final rule amends the General Services Administration Acquisition Regulation (GSAR) to standardize the language used to identify and communicate FAR deviations within the GSAR. FAR deviations are currently identified using inconsistent language, and the location of deviations is not readily apparent to readers. In light of this issue, GSA is publishing this amendment with the aim of enhancing the visibility of FAR deviations within the GSAR by ensuring their visibility in the table of contents for each relevant subpart, as well as within specific subdivisions. Additionally, GSA seeks to standardize language used to introduce the impact of individual FAR deviations within the text.

The naming convention for GSAR sections containing FAR deviations will be revised to incorporate the label “(FAR DEVIATION)” at the end of the section title. This change aims to enhance the visibility of the deviation when referencing the table of contents of the respective subpart.

Within sections containing FAR deviations, the deviating subdivision will begin “GSA has a deviation from FAR (section number) that allows . . .” This standardized language ensures easy identification and understanding of the implications of the deviation.

The statute that applies to the publication of the GSAR is the Office of Federal Procurement Policy statute (codified at title 41 of the United States Code). Specifically, 41 U.S.C. 1707(a)(1) requires that a procurement policy, regulation, procedure or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form, or has a significant cost or administrative impact on contractors or offerors. This rule is not required to be published for public comment, because it is merely conforming the references to FAR deviations throughout the text of the GSAR and does not have a significant effect or impose any new requirements on contractors or offerors.

Executive Orders (E.O.s) 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). E.O. 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. E.O. 14094 (Modernizing Regulatory Review) supplements and reaffirms the principles, structures, and definitions governing contemporary regulatory review established in E.O. 12866 and E.O. 13563. OIRA has determined this rule not to be a significant regulatory action and, therefore, is not subject to review under section 6(b) of E.O. 12866 (Regulatory Planning and Review).

The Congressional Review Act, 5 U.S.C. 801 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a “major 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 General Services Administration will submit a report containing this 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 . OIRA has determined this rule is not a “major rule” under 5 U.S.C. 804(2).

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) does not apply to this rule, because an opportunity for public comment is not required to be given for this rule under 41 U.S.C. 1707(a)(1). Accordingly, no regulatory flexibility analysis is required and none has been prepared.

The Paperwork Reduction Act does not apply because the changes to the GSAR do not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public that require the approval of the Office of Management and Budget (OMB) under 44 U.S.C. 3501, et seq.

Therefore, GSA amends 48 CFR parts 512, 527, 532, 536, 541, and 552 as set forth below:

This final rule amends the General Services Administration Acquisition Regulation to remove clause 552.232-1 Payments. The General Services Administration conducts routine reviews of its acquisition regulations to identify outdated content and to ensure there is no unnecessary duplication of or conflict with the Federal Acquisition Regulation (FAR), pursuant to FAR 1.304. Through one of these reviews in Fiscal Year (FY) 2022, GSA identified that GSAR clause 552.232-1 Payments conflicts with FAR clause 52.232-1 Payments and should be removed. As this GSAR clause is over 10 years old, GSA does not have any historical information that explains why the GSAR clause was initially created. This rule seeks to rectify the issue.

There are no changes from the proposed rule in this final rule.

A proposed rule was submitted for public comment on February 28, 2023, and no comments were received by the closing date of May 1, 2023.

This rule removes one conflicting GSAR clause regarding payments for non-commercial fixed price contracts for supplies or services. GSA believes the exception to invoicing in the GSAR clause is not currently followed, and applicable contractors are already following the invoice requirements of the FAR clause. However, GSA conducted the analysis below demonstrating that the expected impact of this rule is not significant.

With this change, contractors with non-commercial, fixed-price, contracts for supplies or services will now have to submit proper invoices in order to receive payments in accordance with FAR 52.232-1 Payments. Information generated from the System for Award Management ( SAM.gov ) for FY 2023 reflects approximately 142,120 GSA contracts were awarded for non-commercial fixed price contracts for supplies or services across approximately 735 separate contractors.

Consistent with the methodology and analysis for the FAR clause information collection  1 , the affected contracts on average are estimated to have 6 invoices per contract per year, for a total of 852,720 total responses. Each response is estimated to require 0.25 hours, for a total of 213,180 hours of total burden. Applying a GS-12 pay rate, the total cost is estimated to be $12,517,930  2 , or approximately $17,031 per contractor which is not significant.

Executive Order (E.O.) 12866 (Regulatory Planning and Review) directs 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). E.O. 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. E.O. 14094 (Modernizing Regulatory Review) supplements and reaffirms the principles, structures, and definitions governing contemporary regulatory review established in E.O. 12866 and E.O. 13563. OIRA has determined this rule to not be a significant regulatory action and, therefore, is not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993.

OIRA has determined that this rule is not a major rule under 5 U.S.C. 804(2). Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (codified at 5 U.S.C. 801-808), also known as the Congressional Review Act or CRA, generally provides that before a “major 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 General Services Administration will submit a report containing this 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 under the CRA cannot take effect until 60 days after it is published in the Federal Register .

GSA does not expect this rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because this is a noncontroversial action that only impacts the agency's internal operating procedures, and GSA anticipates no significant adverse comments. Therefore, a Final Regulatory Flexibility Analysis has not been prepared.

The Paperwork Reduction Act (44 U.S.C. chapter 35) does apply; however, these changes to the GSAR do not impose additional information collection requirements to the paperwork burden previously approved under the Office of Management and Budget Control Number 9000-0073, Certain Federal Acquisition Regulation Part 32 Requirements.

Therefore, GSA amends 48 CFR parts 532 and 552 as set forth below:

The Department identified technical errors in the Federal Register Document 2024-05583 published in the Federal Register on April 9, 2024 (89 FR 24898); “Disadvantaged Business Enterprise and Airport Concession Disadvantaged Business Enterprise Program Implementation Modifications”. This document corrects technical/typographical errors. It also clarifies that the current personal net worth (PNW) limit as of May 9, 2024 is $2.047 million, as detailed in sections §§ 23.35(a) and 26.68(a) and as indicated in the preamble to the final rule. Adjustments to this limit will start on May 9, 2027, based on the formula in sections §§ 23.35(b), (c) and 26.68(d). For FTA-assisted programs, FTA Tier II recipients do not need to set goals if they operate a race-neutral DBE program. Additionally, this document clarifies that Good Faith Efforts are required in certain situations described in 26.53(g).

Accordingly, 49 CFR parts 23 and 26 are corrected by making the following correcting amendments.

Why we need to publish a rule. Under the Act, a species warrants listing if it meets the definition of an endangered species (in danger of extinction throughout all or a significant portion of its range) or a threatened species (likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range). If we determine that a species warrants listing, we must list the species promptly and designate the species' critical habitat to the maximum extent prudent and determinable. We have determined that the Mount Rainier white-tailed ptarmigan meets the Act's definition of a threatened species; therefore, we are listing the Mount Rainier white-tailed ptarmigan as a threatened species. Listing a species as an endangered species or threatened species can be completed only by issuing a rule through the Administrative Procedure Act rulemaking process (5 U.S.C. 551 et seq. ).

What this document does. This rule makes final the listing of the Mount Rainier white-tailed ptarmigan as a threatened species under the Act and adopts a rule under section 4(d) of the Act for the subspecies.

The basis for our action. Under the Act, we may determine that a species is an endangered species or threatened species because of any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence.

We have determined that the Mount Rainier white-tailed ptarmigan meets the definition of a threatened species due to habitat loss and degradation resulting from climate change within the foreseeable future. Rising temperatures associated with climate change are expected to have direct and rapid impacts on individual birds. Changing habitat conditions, such as loss of suitable alpine vegetation and reduced snow quality and quantity, are expected to cause populations to decline. This threat and responses are reasonably foreseeable because some are already evident in the range of the subspecies, and the best available information indicates that the effects of climate change will continue to alter the subspecies' habitat within the foreseeable future. Furthermore, it is unlikely that the Mount Rainier white-tailed ptarmigan will adapt to the changing climate by moving northward because alpine areas north of the subspecies' current range are expected to undergo similar impacts due to climate change and any potential connectivity to areas north of the current range is expected to decline.

Please refer to the proposed listing rule (86 FR 31668; June 15, 2021) for a detailed description of previous Federal actions concerning the Mount Rainier white-tailed ptarmigan.

A species status assessment (SSA) team prepared an SSA report for Mount Rainier white-tailed ptarmigan. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the subspecies, including the impacts of past, present, and future factors (both negative and beneficial) affecting the subspecies. In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review of listing actions under the Act, we solicited independent scientific review of the information contained in the draft SSA report. We sent the draft SSA report to seven independent peer reviewers including scientists with expertise in white-tailed ptarmigan as well as climate science; we received three responses. The peer reviews and the draft SSA report they commented on can be found at https://www.regulations.gov. We also sent the draft SSA report to three agency partners for review; we received comments from one agency—the Washington Department of Fish and Wildlife. We incorporated the results of these reviews, as appropriate, into the 2021 SSA report (version 1.0, USFWS 2021, entire), which was the foundation for the proposed rule and this final rule. Additionally, new information provided to us during the public comment period on the proposed rule was incorporated into both the final rule as well as version 2.0 of the SSA report (USFWS 2023, entire). A summary of the peer review comments and our responses can be found in the Summary of Comments and Recommendations below.

In preparing this final rule, we reviewed and fully considered comments and new information received from the public on the June 15, 2021, proposed rule. This final rule does not make any substantive changes to the determinations made in the proposed rule. We updated the SSA report to version 2.0 (USFWS 2023, entire), revising it based on all new information and comments received. The new information received from our agency partners and others on genetics, diet, habitat characteristics, adaptive divergence, and range and distribution was incorporated into version 2 of the SSA but not incorporated into this final rule because it did not lead to substantive changes in the determinations made in the proposed rule. The changes we made to this final rule are as follows:

(1) We shorten the Background section to a condensed discussion of the general information for the subspecies on taxonomy/genetics, species description, range/distribution, life history, and habitat (for the full updated discussion on these topics see version 2 the SSA Report (USFWS 2023));

(2) We shorten the Summary of Biological Status and Threats section to include only a brief discussion of recreation and the full discussion of the effects of climate change (for the full updated discussion on factors influencing the status of the subspecies see version 2 the SSA Report (USFWS 2023));

(3) We make many clarifications and minor corrections in this rule to ensure better consistency with the updated SSA report (USFWS 2023), we clarify some information, and we update or add new references.

(4) We remove language referencing low connectivity between populations from this final rule.

(5) We revise table 6 in the final rule (and table 17 the SSA (USFWS 2023, p. 81) by correcting the following:

• We adjust the future condition score under Scenario 4 for the North Cascades-West Population Unit to poor, to be consistent with that unit's Scenario 2 score. Under both scenarios, we predict a lack of future availability of breeding and post-breeding habitat (USFWS 2023, chapter 6.0).

• We adjust the future condition scores for Mount Adams under Scenarios 1 and 3 from good to fair, to better reflect predicted future conditions for Mount Adams, as explained in the SSA report (version 2.0, USFWS 2023, chapter 6.0).

(6) In light of the April 5, 2024, regulation revisions to 50 CFR 424.12, that pertain to circumstances when a designation of critical habitat may be not prudent, we indicate we will reevaluate the prudency analysis for the ptarmigan and issue a critical habitat determination in a separate Federal Register document.

(7) We make revisions to the description of the prohibitions and exceptions in our rule issued under section 4(d) of the Act (“4(d) rule”) in the preamble of this final rule to be consistent with the regulatory text that sets forth the 4(d) rule.

(8) We revise the regulatory text that sets forth the 4(d) rule by making the following changes:

• In § 17.41(i)(1), we add the full suite of section 9 prohibitions. We want to prevent declines in the species' status, and section 4(d) provides that the Secretary shall promulgate regulations that are necessary and advisable to provide for the conservation of the species. Although threatened species are not currently in danger of extinction like endangered species, we have determined those species are likely to become in danger of extinction within the foreseeable future, and we have an opportunity to try to prevent that from happening for newly listed species. Further, we often lack a complete understanding of the causes of a species' decline, and taking a precautionary approach to applying protections would proactively address potentially unknown threats. In addition, the initial listing of a species may bring new attention to the species and that attention may increase the risk of collection or sale. Therefore, this approach of applying section 9 prohibitions assists our goal of putting in place protections that will both prevent the species from becoming endangered and promote the recovery of species. As we learn more about the Mount Rainier white-tailed ptarmigan and the reasons for its decline over time, we have the option to revise the 4(d) rule accordingly.

• In § 17.41(i)(2)(ii), we remove reference to 17.21(c)(5) as this was an error in the proposed rule.

• In § 17.41(i)(2)(v), we remove the exception for Law Enforcement and On-the-job Wildlife Professionals. The intent of this exception is already satisfied by exceptions in § 17.41(i)(2)(i)-(iv), making this stand-alone this exception duplicative.

• In § 17.41(i)(2)(iv)(F), we add developed ski areas and helicopter landing pads to the list of examples of infrastructure where incidental take of Mount Rainier white-tailed ptarmigan can occur during routine maintenance. This revision ensures consistency between our description of the exception in the preamble of this document and in the regulatory text that sets forth the 4(d) rule. In addition, we keep references to trails as part of infrastructure, but remove any references to trails separate from infrastructure to eliminate redundancy in both the preamble and promulgation.

We conclude that the information we received during the comment period for the June 15, 2021, proposed rule did not change our previous analysis of the magnitude or severity of factors influencing the subspecies or our determination that the Mount Rainier white-tailed ptarmigan meets the definition of a threatened species.

Prior to developing the proposed rule, we solicited peer review and received comments on the draft SSA report (USFWS 2021) as discussed below. In our June 15, 2021, proposed rule (86 FR 31668), we requested that all interested parties submit written comments on the proposal by August 16, 2021. We also contacted appropriate Federal and State agencies, Tribes, scientific experts and organizations, and other interested parties and invited them to comment on the proposed rule. Newspaper notices inviting general public comment were published in the Seattle Times on June 21, 22, and 23, 2021, and we did not receive any requests for a public hearing. All substantive information provided during the public comment period either has been incorporated directly into this final rule or is addressed below.

As discussed in Peer Review, above, we received comments from three peer reviewers on the draft SSA report. We reviewed all comments we received from the specialists for substantive issues and new information regarding Mount Rainier white-tailed ptarmigan. The reviewers generally concurred with our methods and conclusions, and provided additional information, clarifications, and suggestions to improve the SSA report and this final rule. The SSA peer review comments mainly fell into categories pertaining to the subspecies' life history, influence factors, and population needs. Revisions per peer reviewer comments and expert opinions are incorporated into the SSA report (version 1.0, USWFS 2021, entire; version 2.0, USFWS 2023, entire) and this final rule as appropriate.

We received 14 public comment letters in response to the June 15, 2021, proposed rule. We reviewed all comments we received during the public comment period for substantive issues and new information regarding the proposed rule. A majority of the commenters supported the listing determination and one opposed the determination. Eight commenters provided substantive comments or new information concerning the proposed listing and 4(d) rule for Mount Rainier white-tailed ptarmigan. Below, we provide a summary of the substantive issues raised in the public comments we received; however, comments outside the scope of the proposed rule, and those without supporting information, did not warrant an explicit response and, thus, are not presented here. Identical or similar comments have been consolidated. As noted below in Critical Habitat, any substantive comments regarding critical habitat received during the comment period on the 2021 proposed rule will be responded to in a separate determination in the future in the Federal Register .

(1) Comment: The U.S. Forest Service (USFS) asked for clarification regarding species and habitat responses to climate change, including why the representative concentration pathway (RCP) 8.5 model predicted good food abundance if there is overall habitat loss and whether habitat loss is related to heat.

Our Response: We determined with our expert elicitation group that Mount Rainier white-tailed ptarmigan need both an adequate quality and quantity of foraging habitat in each season, but habitat quality is no longer relevant if habitat quantity is zero. The expert elicitation group included biologists from USFS, the Washington Department of Fish and Wildlife (WDFW), and the National Park Service (NPS) with local expertise on the subspecies and its habitat.

As described in the SSA report (USFWS 2023, chapter 3.0), we developed a list of species' needs and their indicators prior to the future condition analysis that includes the RCP8.5 scenario. The USFS comment is correct in noting an apparent contradiction between the ratings for habitat loss and food abundance, but the term “abundance of food resources” was chosen to represent the quality and quantity of foraging habitat within remaining breeding, post-breeding, and wintering habitat. We used a variety of indicators to represent “abundance of food resources,” including acres of winter forage vegetation, distance to water during the breeding season, Normalized Difference Vegetation Index (NDVI; an index of plant growth) during early brood rearing, peak timing of NDVI, soil moisture, and the width of the unvegetated area of the glacial forefront not yet colonized by forage plants. Of these, the only indicator available for future scenarios was a measure of soil moisture. In forb-dominated alpine environments, soil moisture will drive productivity in the face of climate warming (Walker et al. 1994, p. 402; Winkler et al. 2016, p. 1553). Soil moisture was projected to remain within one standard deviation of historical means (Northwest Climate Toolbox, developed by members of the Applied Climate Science Lab at the University of Idaho (Pacific Northwest Climate Impacts Research Consortium, CIRC, 2019)), and therefore remains within the range of a “good” rating for some of the population units in some future scenarios. We chose measures within one standard deviation of historical means as representative of a “good” rating because our expert elicitation group concluded that historical forage vegetation conditions adequately support populations of the Mount Rainier white-tailed ptarmigan.

With regard to the potential relationship of habitat loss and heat, the overall loss of ptarmigan habitat is not directly due to a warming climate or desiccation of alpine meadows, but to a shift from open meadow vegetation to forest (Intergovernmental Panel on Climate Change (IPCC) 2019, p. SPM-25; Jackson et al. 2015, p. 440; Steuve et al. 2009, entire; USFWS 2023, pp. 57-61). This future shift to forest represents a loss of habitat for the Mount Rainier white-tailed ptarmigan, and for other species dependent on alpine tundra vegetation.

(2) Comment: USFS questioned why alpine meadow habitat would not expand into areas where glaciers have retreated.

Our Response: In the June 15, 2021, proposed rule, and as explained in the SSA report (USFWS 2023, p. 60), as glaciers retreat and expose soil-less, unvegetated bedrock (called the glacial forefront), we estimate a minimum of 20 years for the development of white-tailed ptarmigan forage plants, and 70 to 100 years for maturation to full meadow and subshrub habitat within that area. This represents a time gap in development of breeding and post-breeding habitat of 5 to 24 generations of ptarmigan (86 FR 31668, June 15, 2021, p. 31681), and thus in the foreseeable future, habitat loss is expected to exceed habitat gains. At some point after glacial retreat (beyond our projected timeline), the exposed areas will be suitable ptarmigan habitat with alpine meadows and remain so for a period of time. Eventually, however, any alpine habitat that develops there will become forest (USFWS 2023, pp. 57-61).

(3) Comment: USFS questioned our use of 50- to 80-year climate models as “foreseeable” and asked for clarification on the projected effects of warming temperatures on forage plant growth.

Our Response: As discussed below under Regulatory Framework, the foreseeable future extends as far into the future as the Service can make reasonably reliable predictions about the threats to the species and the species' responses to those threats. Analysis of the foreseeable future uses the best scientific and commercial data available and should consider the timeframes applicable to the relevant threats and to the species' likely responses to those threats in view of its life-history characteristics and the species' biological response. For the Mount Rainier white-tailed ptarmigan, we could make reasonably reliable predictions 50 to 80 years into the future with respect to the primary driver of the subspecies' status (climate change) and our understanding of information available on the subspecies' survival, generational framework, and physiology (see the discussion in Climate Change under Summary of Biological Status and Threats, below, and section 6.1 of SSA report (USFWS 2023, p. 73).

(4) Comment: USFS asked what metric we used to estimate the low connectivity between populations discussed under Status Throughout all its Range in the proposed rule, given that the subspecies is able to fly relatively long distances.

Our Response: In the June 15, 2021, proposed rule, we erred in stating that connectivity between populations is currently low (86 FR 31668 at p. 31685). Current connectivity levels between populations are not negatively impacting the viability of the subspecies; therefore, we removed language referencing low connectivity between populations from this final rule. For the SSA, we analyzed current connectivity between types of habitat within each population. Appendix F in the SSA report (USFWS 2023, pp. 120-138) provides information on current connectivity between breeding, post-breeding, and winter habitat within each population unit. The categories of “poor,” “fair,” “good,” and “very good” are based on the size and abundance of habitat gaps within a population unit. Current connectivity for each population was categorically rated based on expert opinion (WDFW partners), but future condition estimates of connectivity were left blank (see appendix G in the SSA report (USFWS 2023, pp.138-156) because available vegetation models are not sensitive enough to model small-scale areas, which would be necessary to make a definitive statement of future condition of this indicator. Therefore, this indicator was not used to rate future condition of any population unit or the subspecies.

We clarified the language under Executive Summary, above, and Status Throughout All of Its Range, below, to make clear that this information was for evaluating connectivity between breeding, post-breeding, and winter habitat within populations, as opposed to connectivity between populations. We also clarified that the metric was only used for analysis of current condition for each population.

(5) Comment: The British Columbia Ministry of Environment and Climate Change remarked that the amount of existing recreation in British Columbia is similar to that occurring in the United States, with the same resultant effects to the species. USFS noted that recreational use of high-elevation habitats has been increasing, exponentially in recent years, but did not provide data to support or further explain this statement.

Our Response: We agree that factors influencing Mount Rainier white-tailed ptarmigan populations in British Columbia are similar to those affecting populations in the State of Washington. We thoroughly analyzed the best available information on the scope, magnitude, and intensity of recreation in the range of the subspecies (USFWS 2023, pp. 42-48). Based on this analysis, recreation of any type or timing in the range does not appear to currently affect any more than individual ptarmigan in localized areas. Although both established recreation in designated areas as well as recreation away from established roads and trails will likely increase in the future, we do not have information at this time to analyze whether future increases in recreation would rise beyond individual-level impacts such that it is likely to affect the resiliency of populations of Mount Rainier white-tailed ptarmigan.

(6) Comment: Three commenters, including British Columbia Ministry of Environment and Climate Change and USFS's Region 6, questioned the wording in the discussion of taxonomy and genetics in the June 15, 2021, proposed rule and suggested the Service refer to Taylor (1920, entire) and specific sections within Langin et al. (2018) in our final rule. These commenters questioned our identified boundary for the northern white-tailed ptarmigan, further suggesting the Mount Rainier white-tailed ptarmigan may not be a valid subspecies based on peer review comments and statements in Langin et al. (2018, entire).

Our Response: The June 15, 2021, proposed rule provided only a summary of the taxonomic and genetic information from the SSA report for the Mount Rainier white-tailed ptarmigan. As noted in the SSA report (USFWS 2023, p. 23), the 1957 American Ornithological Union (AOU, now American Ornithological Society (AOS)) taxonomic classification of the subspecies relies on a 1920 description (Taylor 1920, entire) of the subspecies based on a comparison of specimens taken only from Mount Rainier National Park. We adopted the 1957 AOU classification of the subspecies for delineating the range of the subspecies for the SSA analysis and explain in the SSA report that the AOU mapping of the subspecies' border at the international boundary was likely a convenience; the range of the subspecies likely extends slightly farther north than the U.S.-Canada border because habitat is contiguous across the border (USFWS 2023, p. 23; Langin et al. 2018, figures S10 and S14).

As explained in our June 15, 2021, proposed rule, a combination of sightings, dispersal distance, occurrence and distribution of suitable alpine/subalpine habitat, and forests, agriculture, cities, and highways that occur west of the range of the subspecies in British Columbia was used to determine the northern range limit. A 2018 genetics study referenced by commenters (Langin et al. 2018) raised some uncertainty regarding the taxonomic validity of several of the subspecies of white-tailed ptarmigan. However, Langin et al. (2018) stated that sampling was sparse in the area at the border of Washington and British Columbia, “. . . making it infeasible to identify the start and end points of putative genetic groups.” Furthermore, additional research by another group found that individuals are genetically clustered largely by their recognized subspecies (Zimmerman et al. 2021, p. 125).

We acknowledge there is some remaining uncertainty over the relationship between the subspecies in question and the exact boundary between L. l. rainierensis and other subspecies in the genus. However, there has been no change to the official nomenclature of Mount Rainier white-tailed ptarmigan, and the best available science leads us to find that the Fraser River represents the northern terminus of the range of the L. l. rainierensis subspecies. We have incorporated additional information in the discussion of taxonomy and genetics in the SSA report (USFWS 2023, pp. 4-6). All substantive peer review and expert elicitation comments were incorporated into the SSA report (version 1.0. USFWS 2021, entire; version 2.0, USFWS 2023, entire) and considered in development of the June 15, 2021, proposed rule and this final rule.

Section 4(i) of the Act states that the Secretary shall submit to the State agency a written justification for the failure to adopt regulations consistent with the agency's comments or petition. Comments we received from State agencies regarding the proposal to list the Mount Rainier white-tailed ptarmigan as threatened under the Act are addressed below. We received comments from WDFW related to biological information, influence factors, and the 4(d) rule. WDFW provided a number of recommended technical corrections, clarifications, or edits to the proposed listing determination for the Mount Rainier white-tailed ptarmigan. As noted in the Summary of Changes from the Proposed Rule, we have evaluated and incorporated this information into this final rule where appropriate to clarify the final listing determination.

(7) Comment: Citing a 1905 text by Judd, WDFW indicated the historical range of the Mount Rainier white-tailed ptarmigan may have extended south to Mt. Hood and Mount Jefferson in Oregon.

Our Response: We contacted biologists at WDFW to discuss this comment. Past research by WDFW biologists has shown that such historical observations may be in error. Because the Judd text did not provide any information on who or when someone may have seen the subspecies in that area, their recommendation was to mention the possible past occupancy of the subspecies in the area of Mt. Hood and Mount Jefferson, but not to list the area as a historical population. A clarification to this effect has been added to the SSA report (USFWS 2023).

(8) Comment: WDFW suggested that sections of the proposed rule that cite results from research conducted within the range of the southern white-tailed ptarmigan should be cited as such, as those results may not accurately represent conditions or life-history traits for the Mount Rainier white-tailed ptarmigan.

Our Response: In this final rule, we clarify where information came from in studies of southern white-tailed ptarmigan and other subspecies of white-tailed ptarmigan under the Summary of Biological Status and Threats, below.

(9) Comment: Several commenters from nongovernmental organizations and other groups noted their repeated and extensive, yet unsuccessful, searches for Mount Rainier white-tailed ptarmigan over the last several years, concluding that the subspecies' range is likely contracting.

Our Response: We incorporated the search effort information provided by the commenters into the final SSA report and this rule (see Background, below), and we considered the information in our determination.

We completed a comprehensive assessment of the biological status of the Mount Rainier white-tailed ptarmigan and prepared a report of the assessment (SSA report; USFWS 2023, entire), which provides a thorough account of the subspecies' overall viability and risks to that viability. Please refer to the SSA report as well as our June 15, 2021, proposed rule (86 FR 31668) for a full summary of subspecies information. Both are available at https://www.regulations.gov under Docket No. FWS-R1-ES-2020-0076. Below, we summarize the key results and conclusions of the SSA report.

The Mount Rainier white-tailed ptarmigan, one of five subspecies of white-tailed ptarmigan (AOU 1998, p. xii; ITIS 2019; Clements et al. 2019, entire), is found in alpine and subalpine areas of the Cascade Mountains (Cascades) in Washington State and southern British Columbia, Canada. Mount Rainier white-tailed ptarmigan's historical range extended along the Cascade Range from southern Canada south to and including Mount St. Helens and Mount Adams. Mount Rainier white-tailed ptarmigan regularly occurred on Mount St. Helens before the active volcano lost approximately 400 meters (m) (1,314 feet (ft)) of elevation when it erupted in 1980 (Brantley and Myers 1997, p. 2). The population on Mount St. Helens is now presumed extirpated (Schroeder et al. 2021, p 4). We consider the current range of the Mount Rainier white-tailed ptarmigan to include alpine and subalpine areas in the Cascade Mountains, extending from the southern edge of Mount Adams in Washington State to approximately Lytton, British Columbia, Canada, east of the Fraser River. Recent searches for the subspecies noted the recession or loss of previously permanent snowfields, as well as a marked decline in sightings or density of sightings of individuals (Garner 2021, in litt.; Isley 2021, in litt.).

The four other recognized subspecies of white-tailed ptarmigan are the southern white-tailed ptarmigan ( L. l. altipetens ) primarily in Colorado; the Kenai white-tailed ptarmigan ( L. l. peninsularis ) in Alaska; the Vancouver Island white-tailed ptarmigan ( L. l. saxatilis ) in British Columbia, Canada; and the northern white-tailed ptarmigan ( L. l. leucura ) in northern Montana, and the provinces of British Columbia and Alberta, Canada. In the following paragraphs, we rely on studies conducted on other subspecies of white-tailed ptarmigan because most life-history studies either do not differentiate between the subspecies or focus on the more well-studied southern white-tailed ptarmigan subspecies. Mount Rainier white-tailed ptarmigan are cryptic birds that are resident or short-distance elevation migrants with numerous adaptations for snow and extreme cold in winter, including snow roosting behavior and heavily feathered feet that act as snowshoes to support them as they walk across the snow (Braun et al. 2011, Distinguishing Characteristics section). The subspecies molts frequently throughout the year to remain cryptic, appearing entirely white in winter (except for black eyes, dark toenails, and a black beak), mottled with brown and white in spring, and brown in summer; the tail feathers remain white year-round and distinguish the white-tailed ptarmigan from other ptarmigan species (Braun et al. 2011, Distinguishing Characteristics section; Braun et al. 1993, Appearance section; Hoffman 2006, p. 12). Males and females share similar body size and shape, with adult body lengths up to 34 centimeters (cm) (13.4 inches (in)), and body masses up to approximately 378 grams (g) (0.83 pounds (lb)) (Martin et al. 2015, table 3).

Pairs of ptarmigan form shortly after females arrive on breeding areas in late April to mid-May (Martin et al. 2015, Phenology section). Due to the short breeding season, female white-tailed ptarmigan raise only one brood per year (Sandercock et al. 2005, p. 2177). Within 6 to 12 hours after all eggs have hatched, broods gradually move upslope, depending on where forage and cover for chicks are found (Braun 1969, p. 140; Schmidt 1988, p. 291; Giesen and Braun 1993, p. 74; Hoffman 2006, p. 21; Martin et al. 2015, Young Birds section). Records of longevity for wild white-tailed ptarmigan include a 12-year-old female and a 15-year-old male (Martin et al. 2015, Life Span and Survivorship section). There have been no population-scale density estimates for populations in the range of the Mount Rainier subspecies but estimates for other subspecies range from fewer than 1 to about 14 birds per square kilometer (km 2 ) (2.6 to 36 birds per square mile (mi 2 )) (Clarke and Johnson 1990, p. 649). Mount Rainier white-tailed ptarmigan populations may or may not be within this wide range reported for other subspecies (USFWS 2023, p. 26).

Chicks younger than 3 weeks old primarily eat invertebrates (May 1975, p. 28), but adult white-tailed ptarmigan, as well as chicks older than approximately 5 weeks old, are herbivorous (May 1975, pp. 28-29). Mount Rainier white-tailed ptarmigan in the North Cascades were observed eating, in order of preference: dwarf huckleberry ( Vaccinium deliciosum ), red mountain heather ( Phyllodoce empetriformes ), black-headed sedge ( Carex nigricans ), white mountain heather ( Cassiope mertensiana ), crowfoot ( Luetkea pectinata ), Tolmie's saxifrage ( Saxifraga tolmiei ), spiked wood rush ( Luzula spicata ), and mosses (Skagen 1980, p. 4). A suitable microclimate is important for this cold-adapted bird. Because white-tailed ptarmigan have the lowest evaporative cooling efficiency of any bird (Johnson 1968, entire) and will pant at temperatures above 21 °C (70 °F), adults are likely limited by warm temperatures during the breeding and post-breeding seasons. Thermal behavioral adaptations include seeking cool microsites such as the edges of snowfields, near snowbanks, in the shade of boulders, or near streams where temperatures are cool; the absence of these microsites may preclude presence of the species (Johnson 1968, p. 1012). Use of snow in late summer may be important.

Breeding and brood-rearing habitat of white-tailed ptarmigan is within the alpine zone, defined by treeline at its lower elevation limit and permanent snow or barren rock at its upper elevation limit. As with breeding habitat, the lower elevation limit of post-breeding habitat is likely defined by treeline and proximity to water (Frederick and Gutierrez 1992, p. 895). At high elevations in the Pacific Northwest, winter snowpack can store a significant portion of winter precipitation and release it to the soil during spring and early summer, thereby reducing the duration and magnitude of summer soil water deficits (Peterson et al. 2014, p. 26). At the basin scale, glacier melt supplies 2 to 14 percent of summer discharge in the Cascades and up to 28 percent of discharge by September (Frans et al. 2018, p. 11); the proportion is likely much greater in the high-elevation subbasins occupied by Mount Rainier white-tailed ptarmigan, which have a smaller catchment area to supply discharge from snow or rain.

No studies of the Mount Rainier white-tailed ptarmigan's use of winter habitat have been conducted, however, white-tailed ptarmigan in Colorado shelter from winter wind and cold in snow roosts (Braun et al. 1976, p. 2; Braun and Schmidt 1971, p. 245). Snow-roosting sites for white-tailed ptarmigan have deep, fluffy snow with high insulation value; this generally means snow that is cold, is relatively dry, and has abundant air spaces. Wind influences snow deposition patterns and the availability of snow roosts (Braun et al. 1976, p. 3). During the day when ptarmigan are not feeding, they seek shelter beneath or on the lee side of dwarf conifers growing along ridges, but snow on the ridges is often shallow and covered with a hard crust, making conditions unsuitable for night roosting. Thus, at dusk, the birds move from ridges to areas of deeper and softer snow along treeline, where they can burrow beneath the surface of the snow (Braun and Schmidt 1971, p. 245). When weather conditions are harsh, flocks will move below treeline to stream bottoms and avalanche paths (Braun et al. 1976, p. 4).

The Cascades of the Pacific Northwest have some of the deepest snowpack in North America. Willow stands along valley bottoms similar to those relied on by southern white-tailed ptarmigan are rare and are likely buried by heavy winter snows on the steep slopes within the range of the Mount Rainier white-tailed ptarmigan (Schroeder 2019, pers. comm.). Based on limited observations and information from other subspecies, we expect wintering Mount Rainier white-tailed ptarmigan will use alpine areas, open areas in subalpine parklands, and openings created by stream courses, landslides, and avalanches within subalpine forests, and refer to these habitat types as “alpine” or “potentially suitable” habitat herein. Approximately 76.5 percent of the total suitable habitat for the Mount Rainier white-tailed ptarmigan is found in the United States, and almost all of that area is federally owned (94.5 percent, see table 1, below).

Section 4 of the Act (16 U.S.C. 1533) and the implementing regulations in title 50 of the Code of Federal Regulations set forth the procedures for determining whether a species is an endangered species or a threatened species, issuing protective regulations for threatened species, and designating critical habitat for endangered and threatened species. On April 5, 2024, jointly with the National Marine Fisheries Service, the Service issued a final rule that revised the regulations in 50 CFR 424 regarding how we add, remove, and reclassify endangered and threatened species and what criteria we apply when designating listed species' critical habitat (89 FR 24300). On the same day, the Service published a final rule revising our protections for endangered species and threatened species at 50 CFR 17 (89 FR 23919). These final rules are now in effect and are incorporated into the current regulations. Our analysis for this final decision applied our current regulations. Given that we proposed listing for this species under our prior regulations (revised in 2019), we have also undertaken an analysis of whether our decision would be different if we had continued to apply the 2019 regulations; we concluded that the listing decision would be the same. However, we will reevaluate our not prudent determination, as discussed below under Critical Habitat, in a separate Federal Register notice. The analyses under both the regulations currently in effect and the 2019 regulations are available on https://www.regulations.gov.

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

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

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

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

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

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

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

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

The Act does not define the term “foreseeable future,” which appears in the statutory definition of “threatened species.” Our implementing regulations at 50 CFR 424.11(d) set forth a framework for evaluating the foreseeable future on a case-by-case basis which is further described in the 2009 Memorandum Opinion on the foreseeable future from the Department of the Interior, Office of the Solicitor (M-37021, January 16, 2009; “M- Opinion,” available online at https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/M-37021.pdf ). The foreseeable future extends as far into the future as the Services can make reasonably reliable predictions about the threats to the species and the species' responses to those threats. The Services need not identify the foreseeable future in terms of a specific period of time. The Services will describe the foreseeable future on a case-by-case basis, using the best available data and taking into account considerations such as the species' life-history characteristics, threat-projection timeframes, and environmental variability. In other words, the foreseeable future is the period of time over which we can make reasonably reliable predictions. “Reliable” does not mean “certain”; it means sufficient to provide a reasonable degree of confidence in the prediction, in light of the conservation purposes of the Act.

The SSA report (USFWS 2023, entire) documents the results of our comprehensive biological review of the best scientific and commercial data regarding the status of a species, including an assessment of the potential threats to that species. The SSA report does not represent our decision on whether a species should be listed as an endangered or threatened species under the Act. However, it does provide the scientific basis that informs our regulatory decisions, which involve the further application of standards within the Act and its implementing regulations and policies.

To assess the Mount Rainier white-tailed ptarmigan's viability for the SSA, we used the three conservation biology principles of resiliency, redundancy, and representation (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency is the ability of a species to withstand environmental and demographic stochasticity (for example, wet or dry, warm or cold years); redundancy is the ability of a species to withstand catastrophic events (for example, droughts, large pollution events); and representation is the ability of a species to adapt to both near-term and long-term changes in its physical and biological environment (for example, climate conditions or pathogens). In general, species viability will increase with increases in resiliency, redundancy, and representation (Smith et al. 2018, p. 306). Using these principles, we identified the Mount Rainier white-tailed ptarmigan's ecological requirements for survival and reproduction at the individual, population, and subspecies levels, and described the beneficial and risk factors influencing the subspecies' viability.

The SSA process can be categorized into three sequential stages. During the first stage, we evaluated the individual species' life-history needs. The next stage involved an assessment of the historical and current condition of the species' demographics and habitat characteristics, including an explanation of how the species arrived at its current condition. The final stage of the SSA involved making predictions about the species' responses to positive and negative environmental and anthropogenic influences. Throughout all of these stages, we used the best available information to characterize viability as the ability of a species to sustain populations in the wild over time. We use this information to inform our regulatory decision.

Occurrence data are quite limited, and we do not know whether the abundance of Mount Rainier white-tailed ptarmigan has changed over time. To facilitate the assessment of the current and projected future status of the subspecies across its range, we used the limited occurrence data and expert elicitation to delineate representation areas and population units. We separated the range into two representation areas, the North Area and the South Area, to represent the known ecological variation between the two regions. Within those two representation areas, we identified seven current population units based on observations, elevation, and vegetation types from Landfire vegetation maps (see table 2, below).

We refined the boundaries of these units by selecting vegetation types on recently refined NPS vegetation maps and Landfire vegetation maps for USFS lands. Our refined population unit maps contain nearly all observations of the subspecies obtained from agency partners. One of the population units in the South Area, William O. Douglas, has suitable habitat but unknown occupancy. Another historical population in the South Area is considered extirpated due to the 1980 eruption of the Mount St. Helens volcano. We did not include the presumed extirpated Mount St. Helens population unit in our analysis of current or future condition because we conclude that it does not constitute suitable habitat now and is unlikely to within the foreseeable future. Similarly, we did not consider Mt. Hood or Mount Jefferson because records there are more than 100 years old and are questionable.

The following is a summary of the key results and conclusions from the SSA report (USFWS 2023); the full SSA report can be found at https://www.regulations.gov under Docket No. FWS-R1-ES-2020-0076.

In this discussion, we review the biological condition of Mount Rainier white-tailed ptarmigan and its resources, and the threats that influence the subspecies' current and future condition, in order to assess the subspecies' overall viability and the risks to that viability.

The petition to list the southern and Mount Rainier white-tailed ptarmigan subspecies as threatened (Center for Biological Diversity (CBD) 2010, entire) identified the following influences as threats: effects to habitat from global climate change, recreation, livestock grazing, and mining; hunting; predation; inadequacy of regulatory mechanisms; population isolation or limited dispersal distances; and population growth rates and physiological response to a warming climate. Our 90-day finding on the petition (77 FR 33143; June 5, 2012) concluded that the petition presented substantial information to indicate that the Mount Rainier white-tailed ptarmigan may warrant listing due to the effects of climate change on habitat and population growth rates, and the physiological response of the subspecies to a warming climate.

As part of our analysis of the viability of the Mount Rainier white-tailed ptarmigan, we looked at the previously identified potential environmental and anthropogenic influences on viability, as well as any new ones identified since the publication of our 90-day finding. We analyzed population isolation and limited dispersal distances in the context of our resiliency, redundancy, and representation analysis for the subspecies. We also looked at the regulatory and voluntary conservation mechanisms that may reduce or ameliorate the effect of those stressors. To provide the necessary context for our discussion of the magnitude of stressors, we first discuss our understanding of existing regulatory and voluntary conservation mechanisms.

A majority of the land (70 percent) within the national parks and forests in the U.S. portion of the range of the Mount Rainier white-tailed ptarmigan is congressionally designated wilderness under 16 U.S.C. 1131 et seq. and 54 U.S.C. 100101 et seq. This designation bans roads along with the use of motorized and nonmotorized vehicles. In North Cascades National Park, 94 percent of the land is designated as the Steven Mather Wilderness (259,943 ha (642,333 ac) of the total 275,655 ha (681,159 ac)) (NPS 2020, entire). There are 16 designated wilderness areas on USFS land in the Mount Rainier white-tailed ptarmigan's range; the percentage of designated wilderness in each population unit is summarized below in table 3. Additionally, 6 percent of the total suitable habitat for Mount Rainier white-tailed ptarmigan is located on land owned by British Columbia Provincial Parks (BC-Parks 2020, entire). Provincial parks are multiuse areas that contain some remote wilderness and allow activities such as hiking, camping, and winter recreation. The wilderness designation areas and Provincial Park lands in the range of Mount Rainier white-tailed ptarmigan are shown below in figure 1.

The WDFW considers the white-tailed ptarmigan a game bird but does not have a hunting season on the species. Take or possession of the species would be a violation of the Revised Code of Washington, section 77.15.400 (Washington State Legislature 2020, entire). Hunting of ptarmigan is allowed in a relatively small portion of the Canadian portion of the North Cascades-West population unit from mid-September through mid-December (BC-Parks Canada 2020, entire).

White-tailed ptarmigan are a “Species of Greatest Conservation Need” in the Washington State Wildlife Action Plan (WDFW 2015, pp. 3-18). The WDFW is making efforts to better understand the distribution and abundance of the species by soliciting observations from birding enthusiasts, hikers, backpackers, mountaineers, skiers, snowshoers, and other recreationists that visit ptarmigan habitat. The Transboundary Connectivity Project (Krosby et al. 2016, entire) included white-tailed ptarmigan as a focal species, and members created conceptual models of stressors to the species and designed strategies to abate threats.

Critical habitat for Canada lynx ( Lynx canadensis ) overlaps the range of the Mount Rainier white-tailed ptarmigan in most of the North Cascades—East population unit, and about half of the North Cascades—West population unit (79 FR 54782, September 12, 2014; 50 CFR 17.95(a)). One of the identified physical and biological features essential to the conservation of Canada lynx is snow conditions (winter conditions that provide and maintain deep fluffy snow for extended periods). This critical habitat designation may provide some benefit to the Mount Rainier white-tailed ptarmigan if it results in the regulation of activities that would reduce the quantity and quality of snow within these population units, but such a situation would not likely happen at a scale that would benefit the resiliency of the population unit.

We analyzed a variety of stressors that potentially influence the current status of the Mount Rainier white-tailed ptarmigan or may influence the subspecies' future status. We again reviewed all of the factors identified in the petition, as well as any potential additional influences in the range of the subspecies. Neither the petition nor our 90-day finding identified disease as a threat, and we did not find information in our analysis to indicate that disease is currently, or is likely to be in the future, a threat to the resiliency of any population unit or the overall viability of the subspecies. Our SSA concluded that the available information on several potential stressors, including mining, hunting, grazing, browsing, the invasive willow borer beetle ( Cryptorhynchus lapathi ), predation, and infrastructure development, indicated that these did not operate at a level affecting the resiliency of any population unit, or the overall viability of the subspecies (USFWS 2023, pp. 37-41).

While the effects from recreation have not been investigated in the field, recreation is the primary human activity throughout the range of the subspecies. As discussed in the Proposed Rule and the SSA Report (USFWS 2023, section 4.8), a wide array of recreation regularly occurs year-round within all Mount Rainier white-tailed ptarmigan population units. Although no published studies exist that directly link recreation to individual-level, population-level, or subspecies-level effects to the Mount Rainier white-tailed ptarmigan, effects to individual Mount Rainier white-tailed ptarmigan have been observed, and studies have shown effects of recreation on closely related species (USFWS 2023, p. 42-43). However, available information does not indicate that recreation has impacted the historical abundance and distribution of Mount Rainier white-tailed ptarmigan. Further, although we do not know the true overlap of recreational areas (mainly trails) with concentrated Mount Rainier white-tailed ptarmigan use areas, the history of established recreation, the overall small amount of area occupied by trails in Mount Rainier white-tailed ptarmigan habitat (0.02 percent as shown in Table 9, USFWS 2023, p. 47), and the large percentage of protected wilderness in the range (70 percent of the range of the subspecies in the United States as shown in Table 4, USFWS 2023, p. 41) all likely reduce the risk of exposure of the subspecies to this stressor. The best available information does not indicate that recreation currently has a population-level effect on the Mount Rainier white-tailed ptarmigan. Although both established recreation in designated areas as well as recreation away from established roads and trails will likely increase in the future, available information does not indicate that future increases in recreation would rise beyond individual-level impacts such that it is likely to affect subspecies' redundancy or representation.

The effects of climate change are already evident in Mount Rainier white-tailed ptarmigan habitat, and the projected future increase in those effects may decrease the viability of the subspecies. The Intergovernmental Panel on Climate Change (IPCC) (2019, pp. 2-9) projects with very high confidence that surface air temperatures in high mountain areas will rise by 0.54 °F (0.3 °C) per decade, generally outpacing global warming rates regardless of future emission scenario. As temperatures increase, glaciers initially melt quickly and contribute an increased volume of water to the system, but as glacial mass is lost, their contribution of meltwater to the system decreases over time. Global climate models project declines in current glacier area throughout the Washington and northern Oregon Cascades (Frans et al. 2018, p. 13) that will result in a corresponding decline in associated snowpack and glacial melt contribution to summer discharge. Scenario representation concentration pathway (RCP) 4.5 is a moderate emissions scenario, and RCP8.5 is a high emissions scenario (Alder and Hostetler 2016, entire). In the North Cascades, glaciers are projected to retreat 92 percent between 1970 and 2100 under RCP4.5, and 96 percent between 1970 and 2100 under RCP8.5 (Gray 2019, p. 34).

The effects of climate change have already led to some glacial recession in Mount Rainier white-tailed ptarmigan habitat (Snover et al. 2013, pp. 2-3). Geologic mapping data, old maps and aerial photos, and recent inventories indicate that glacier area declined 56 percent in the North Cascades between 1900 and 2009 (Dick 2013, p. 59). On Mount Adams, total glacier area decreased by 49 percent from 1904 to 2006, at about 0.15 km 2 (0.06 mi 2 ) per year (Sitts et al. 2010, p. 384). Other individual glaciers in Washington have receded from 12 percent (Thunder Creek; 1950-2010) to 31 percent (Nisqually River; 1915-2009) (Frans et al. 2018, p. 10), and throughout the Cascades, glaciers continue to recede in both area and volume (Snover et al. 2013, pp. 2-3; Dick 2013, p. 59).

Glacier melt in many of the watersheds of the eastern Cascade Range and low-moderate elevation watersheds of the western Cascades has already peaked or will peak in the current decade (Frans et al. 2018, p. 20). The variation in the timing of peak discharge from glacier to glacier will initially lead to decreases in available moisture to some alpine meadows but increases in others. Later in the century, we expect all areas to suffer significant losses of glacier melt (Frans et al. 2018, p. 20). Total discharge in August and September from snowmelt, rain, and glacial melt in a sample of Cascades watersheds is already below the 1960-2010 mean and is expected to continue to drop through 2080 (Frans et al. 2018, p. 15). Glaciers on the east side of the Cascade crest, where the precipitation regime is drier, show the strongest response to climate in both historical and future time periods, and will be the most sensitive to a changing climate (Frans et al. 2018, p. 17).

Spring snowpack fluctuates substantially from year to year in Washington but has declined overall by 30 percent from 1955 to 2016 and is expected to further decline by up to 38 percent under RCP4.5 and up to 46 percent under RCP8.5 by midcentury (Roop et al. 2019, p. 6). Changes in snowpack in the colder interior mountains will largely be driven by decreases in precipitation, while changes in snowpack in the warmer maritime mountains will be driven largely by increases in temperature (Hamlet 2006, pp. 40-42). Although some high-elevation sites that maintain freezing winter temperatures may accumulate additional snowpack as additional winter precipitation falls as snow, overall, perennial snow cover is projected to decrease with climate change (Peterson et al. 2014, p. 25). A substantial decrease in perennial snow cover is projected for the North Cascades, with many areas of current snow cover replaced by bare ground (Patil et al. 2017, pp. 5600-5601). Field studies in the North Cascades-East population unit of the Mount Rainier white-tailed ptarmigan indicate that despite above-average snowfall in the winter of 2020-2021, the date of complete melt and disappearance of an important snowbank for male flocks and some broods was the earliest recorded in 13 field seasons since 1997 (Schroeder et al. 2021, p. 11).

Projected increases in air temperatures will also lead to changes in the quality of available snow through increases in rain-on-snow events and the refreezing of the surface of snowpack that melts in the heat of the day. The refreezing of snow creates a hard surface crust (Albert and Perron, Jr. 2000, p. 3208) that may make burrowing for roosting sites difficult for ptarmigan, who prefer soft snow for their roosts (Braun and Schmidt 1971, p. 244; Braun et al. 1976, pp. 3-4). Furthermore, warm winter temperatures that create wet, heavy snow may also make burrowing difficult for ptarmigan, and thus less suitable for snow roosts.

Reduced snowpack, earlier snowmelt, elimination of permanent snowfields, and higher evapotranspiration rates are likely to enhance summer soil drying and reduce soil water availability to alpine vegetation communities in the Cascades (Elsner et al. 2010, p. 245). As the climate becomes warmer, vegetation communities are also expected to shift their distributions to higher elevations. Globally, treelines have either risen or remained stable, with responses to recent warming varying among regions (Harsch et al. 2009, entire). Strong treeline advances have already been found in some areas of Washington, such as Mount Rainier National Park (Stueve et al. 2009, entire). As treeline rises at the lower limit of the alpine zone, Mount Rainier white-tailed ptarmigan habitat will be lost as open, alpine vegetation communities become forested. Creation of new habitat by upward expansion of the alpine zone will be constrained by cliffs, parent rock material, ice, remaining glaciers, permanent snow, and the top of mountain ranges. Where glaciers and permanent snow recede, primary succession will need to occur before the underlying parent material can support alpine meadows. Succession of the Lyman glacial forefront (the newly exposed area under a receding glacier) in the North Cascades took 20-50 years to develop early successional plant species.

Decreased winter wind associated with climate change may be contributing to observed declines in snowpack and stream flows (Luce et al. 2013, p. 1361). Continued decreases in wind are expected throughout the Cascades (Luce 2019, p. 1363), potentially decreasing the availability of forage for Mount Rainier white-tailed ptarmigan, as well as allowing some krummholz to grow taller into tree form, which can reduce the suitability of habitat. Decreased wind may reduce snowbanks and thereby limit the availability of snow roosting sites for the subspecies, increasing the exposure of Mount Rainier white-tailed ptarmigan to temperatures below their tolerance, or increasing stress levels in the winter. Delayed snowfall could also create plumage mismatch, leading to increased predation. White-tailed ptarmigan are adapted to be cryptic through all seasons by changing plumages frequently to match the substrate as snow cover changes. A change in timing of molt, or timing of snow cover, could limit the effectiveness of this strategy, leading to higher predation risk to individuals. Mount Rainier white-tailed ptarmigan in white plumage have already been detected in snow-free areas in fall (Riedell 2019, in litt.).

Climate change may affect Mount Rainier white-tailed ptarmigan through direct physiological effects on the birds such as increased exposure to heat in the summer. White-tailed ptarmigan experience physiological stress when ambient temperatures exceed 21 °C (70 °F; Johnson 1968, p. 1012), so their survival during warmer months depends on access to cool microrefugia in their habitat; these cooler areas are created by boulders and meltwater near glaciers, permanent snowfields, snowbanks, and other areas of snow in alpine areas. The projected increases in temperature and related decreases in snowpack and meltwater will reduce the availability of these microrefugia in the foreseeable future to populations of the Mount Rainier white-tailed ptarmigan.

The timing of peak plant growth influences the availability of appropriate seasonal forage to ptarmigan, as well as the availability of insects. When the peak of plant abundance falls outside a crucial post-hatch period, the resulting phenological mismatch affects chick survival (Wann et al. 2019, entire). Projected effects of climate change could alter the growing season and abundance of the ptarmigan's preferred vegetation and the timing of the emergence and abundance of the insects necessary for foraging. If these changes result in significant asynchrony, populations of Mount Rainier white-tailed ptarmigan may not have adequate forage availability.

Where upslope migration of alpine plant communities is able to occur in the face of climate change, breeding and post-breeding habitat for white-tailed ptarmigan will still not be available unless, or until, primary succession proceeds to the stage where dwarf willows, sedges, and other ptarmigan forage species are present in sufficient abundance and composition to support foraging ptarmigan and insect populations for chicks. If it takes at least 20 years to develop limited white-tailed ptarmigan forage plants ( Saxifrage species), and 70-100 years to mature to full habitat with lush meadows and ericaceous subshrubs, this would represent a gap in breeding and post-breeding habitat for 5 to 24 generations (assuming a generation length of 4.1 years) (Bird et al. 2020, supplement table 4). Thus, we do not expect new breeding and post-breeding habitat for the subspecies to be created at the same rate at which it is lost. Climate change will also convert subalpine forest openings ( e.g., meadows) to subalpine forests, which are not suitable winter habitat for white-tailed ptarmigan. Infill of subalpine openings with trees has already occurred at Mount Rainier National Park (Stueve et al. 2009, entire). Subalpine tree species have increasingly filled in subalpine meadows throughout northwestern North America (Fagre et al. 2003, p. 267).

Species distribution models for all three species of ptarmigan in British Columbia (rock ptarmigan ( Lagopus muta ), willow ptarmigan ( Lagopus lagopus ), and white-tailed ptarmigan)) project that all three species will experience upward shifts in elevation and latitude, habitat loss, and subsequent range reductions throughout the province (Scridel et al. 2021, p. 1764). The white-tailed ptarmigan, including individuals in the area southeast of the Fraser River Valley included in our SSA, is projected to experience an upward elevation gain of 254 m (833 ft), an upward latitude shift of 1.11°, and a range decline of 86 percent by the 2080s (Scridel et al. 2021, p. 1764). Projected distribution maps indicate that all habitat within the range of the Mount Rainier white-tailed ptarmigan in British Columbia will be lost by the 2080s (Scridel et al. 2021, p. 1765). Although this study focused on British Columbia, climate change projections for vegetation in Washington State are comparable, and range declines of Mount Rainier white-tailed ptarmigan in Washington State are expected to be similar in both area and timing to those predicted for British Columbia. As the distribution of white-tailed ptarmigan habitat in British Columbia contracts, the habitat gap between white-tailed ptarmigan in Washington and white-tailed ptarmigan north of the Fraser River Valley will increase (Scridel et al. 2021, p. 1765). This increased habitat gap will decrease the likelihood of genetic exchange between the subspecies.

A 1998 study assessed the potential vulnerability of wildlife species within the Interior Columbia River Basin to effects of climate change and reported that the species of white-tailed ptarmigan ( Lagopus leucura ) seemed particularly at risk (Marcot et al. 1988, pp. 58-63). The study noted this species occurs only in alpine tundra habitats within the Interior Columbia River Basin, in isolated locations that, under climate change projections, would potentially undergo upward shifts in elevation, further isolation, and reduction in area or local elimination. The study determined white-tailed ptarmigan (at the species level) was most at risk of all species in their analysis area, as it uses only alpine tundra habitats (Marcot et al. 1998, p. 60).

In summary, the future condition of Mount Rainier white-tailed ptarmigan habitat will likely be affected by several factors associated with climate change, including the following: exposure to heat stress (caused by increasing ambient temperatures coupled with decreasing availability of the cool summer refugia supplied by snow and glaciers); loss of winter snow roosts that protect ptarmigan from winter storms; changes in snow deposition patterns that may affect both snow roosts and forage availability; loss of alpine vegetation due to both hydrologic changes caused by decreases in meltwater from snowpack and glaciers as well as rising treelines; and phenological mismatch between ptarmigan hatch and forage availability. These changes are likely to impact the habitat at levels that measurably affect the resiliency of all populations. Although a reasonable projection of future population trend is limited by the lack of demographic data, the projected degradation and loss of habitat, as well as likelihood of increased physiological stress of individuals across the range, would have negative effects on the future population growth rate of the subspecies. The scope and intensity of these combined effects is likely to affect the future resiliency of every extant population of the Mount Rainier white-tailed ptarmigan and the redundancy and representation of those units across the range. Therefore, the effects of climate change are likely to affect the overall viability of the subspecies.

We reviewed the environmental and anthropogenic factors that may influence the viability of the Mount Rainier white-tailed ptarmigan, including regulatory and voluntary conservation measures and potential stressors. The subspecies is provided some measure of protection from the large amount of Federal management and congressionally designated wilderness in its range, the management of some of its range in Canada by British Columbia Provincial Parks, the subspecies' State designation in Washington, and the overlap of its range with designated critical habitat for the Canada lynx.

The best available information does not indicate that disease has previously, is currently, or will in the future affect the resiliency of any Mount Rainier white-tailed ptarmigan population units. Although mining, hunting, grazing, browsing, the invasive willow borer beetle, predation, infrastructure development, and recreation may have localized effects to individual Mount Rainier white-tailed ptarmigan, the best available information does not indicate they affect the overall viability of the subspecies, and adequate future projections are not available to determine if these influence factors increase in the future to a level that will affect the viability of the subspecies. However, the effects of climate change are already evident in Mount Rainier white-tailed ptarmigan habitat, and the likely projected future increase in the scope, magnitude, and intensity of those effects will decrease the viability of the subspecies.

Based on our assessment of the biological information on the subspecies, we identified 10 key resiliency attributes for populations of the Mount Rainier white-tailed ptarmigan: (1) connectivity among seasonal use areas, (2) cool ambient summer temperatures, (3) a suitable hydrologic regime to support alpine vegetation, (4) winter snow quality and quantity, (5) abundance of forage, (6) cool microsites, (7) suitable population structure and recruitment, (8) adequate population size and dynamics, (9) total area of alpine breeding and post-breeding habitat, and (10) total area of winter habitat. We developed a table of these key population needs with one or more measurable indicators of each population need (USFWS 2023, pp. 68-69).

To evaluate current condition, we took information for the current value of each indicator and assigned it to a condition category (USFWS 2023, pp. 68-69). We created condition categories based on what we consider an acceptable range of variation for the indicator based on our understanding of the subspecies' biology and the need for human intervention to maintain the attribute (Conservation Measures Partnership 2013, entire) (see table 4, below). Categorical rankings were defined as follows:

Eight additional indicators had data available for current condition, but we did not have models that allowed us to project them into the future, so we did not use them to assess future condition. These additional indicators include connectivity within population units between breeding, post-breeding, and winter habitat, which is important for less-mobile broods; area of willow, alder, or birch (winter forage); distance to water during breeding season; unvegetated area of glacial forefront (not colonized by forage plants yet, less is better); cover or distribution of large boulders (breeding and post-breeding seasons); a qualitative assessment of vegetation quality; mapped area of alpine vegetation from Landfire and NPS vegetation maps; and mapped area of subalpine vegetation from Landfire and NPS vegetation maps.

Current resiliency ratings are captured below in table 5. Redundancy is limited to six known extant population units in “good” or “fair” condition across the range of the subspecies. With respect to ecological variation, three extant populations occur in the South representation area and three extant populations occur in the North representation area. Although Mount Adams has poor landscape context due to large gaps in habitat limiting connectivity throughout the unit, and the condition is poor due to low quality of vegetation, the availability of microrefugia and summer habitat are very good, so the overall condition score of the population unit was scored as fair. The historical population at Mount St. Helens was extirpated as a result of the volcanic eruption in 1980. Historical populations that may have existed in Oregon Cascades (Judd 1905, p. 47) have been extirpated for many years, as we know of no observations in the past several decades. The William O. Douglas Wilderness contains potential habitat, but we have no records of white-tailed ptarmigan in the area and consider occupancy unknown. Habitat for populations in the South representation area is more limited and isolated than habitat for populations in the North representation area. Observations on record and expert opinion indicate there are only a small number of birds in the Goat Rocks population unit in the South representation area and the Alpine Lakes population unit in the North representation area.

To better understand the projected future condition of the Mount Rainier white-tailed ptarmigan, we developed four future scenarios based on global climate models at RCP4.5 and RCP8.5 to depict a range of plausible potential outcomes for the subspecies' habitat over time.

Projected changes in climate and related impacts can vary substantially across and within different regions of the world (IPCC 2007, pp. 8-12). Therefore, we use “downscaled” projections when they are available and are developed through appropriate scientific procedures, because such projections provide higher resolution information that is more relevant to spatial scales used for analyses of a given species (Glick et al. 2011, pp. 58-61). We used data obtained from the Northwest Climate Toolbox, developed by members of the Applied Climate Science Lab at the University of Idaho (Hegewisch and Abatzoglou 2019, entire). In addition to past and current data, the Northwest Climate Toolbox provides modeled future projections of climate and hydrology based on the effects of potential degrees of greenhouse gas emissions reported by the IPCC (IPCC 2014, entire).

We estimated area of alpine vegetation from vegetation models based on the RCP4.5 or RCP8.5 scenarios (MC2 models) (Bachelet et al. 2017, entire; Sheehan et al. 2015, entire). We also estimated area of alpine vegetation from biome climatic niche models based on three earlier global climate projections (CGCM3 1 A2 2090, Hadley A2 2090, and Consensus A2 2090). These models were used to project alpine area (and other vegetation type areas) for the Transboundary Connectivity Project (Krosby et al. 2016, entire, based on the projections supplied by Rehfeldt et al. 2012, entire). Alpine area from the NPS and Landfire vegetation maps provides the most reliable and important measure of current population resiliency. We reported subalpine area for each analysis unit but did not use it as an indicator of future resilience because this measure does not differentiate between subalpine forests (which are not suitable for the Mount Rainier white-tailed ptarmigan) and subalpine openings (suitable winter habitat for the subspecies). We also included a management variable in our scenarios to assess if specific management of recreation impacts and habitat enhancement and restoration would make a difference to the projected status of the Mount Rainier white-tailed ptarmigan in the future. These management variable factors ultimately made minimal difference in the outcome of our scenarios in comparison to the impact of climate projections.

The future scenarios we developed based on the climate-based vegetation models include:

(1) Projected climate change effects under RCP4.5 with no management for Mount Rainier white-tailed ptarmigan populations or habitat;

(2) Projected climate change effects under RCP8.5 with no management for Mount Rainier white-tailed ptarmigan populations or habitat;

(3) Projected climate change effects under RCP4.5 with management to maintain Mount Rainier white-tailed ptarmigan populations and habitat; and

(4) Projected climate change effects under RCP8.5 with management to maintain Mount Rainier white-tailed ptarmigan populations and habitat.

The scenarios demonstrated that the projected effects of climate change could result in the loss of up to 95 percent of the Mount Rainier white-tailed ptarmigan's currently available alpine tundra habitat (USFWS 2023, appendix A) and could lead to a related decrease in the availability of thermal microrefugia for the subspecies. Although vegetation models yield different acreage projections, trajectories of both vegetation models and all scenarios are similar in indicating only one or two populations are likely to have any breeding season habitat remaining by 2069. Mount Rainier is consistently projected to be one of the remaining populations in all four future scenarios. This is due to its high elevation, which results in a much larger amount of current and future suitable habitat compared to other populations in the subspecies' range. The management actions (which include both reduced recreational impacts and habitat enhancement and restoration) are not projected to affect the status of any population unit in the Global Climate models (GCM). Table 6 summarizes the future condition for all known currently extant population units; possible ratings include poor, fair, good, or very good.

Currently, population units of the Mount Rainier white-tailed ptarmigan maintain fair to good resiliency across the subspecies' range; no population unit has very good resiliency. The continuing effects of climate change threaten Mount Rainier with-tailed ptarmigan in the following ways: increased physiological stress due to elevated temperatures; reduced availability of moist alpine vegetation and associated insects; loss of snow cover and reduction of snow quality for climate microrefugia and camouflage; and, most importantly, loss of breeding and post-breeding habitat as a result of changes in precipitation, wind, and temperature.

There is evidence of local adaptive divergence among subspecies of the white-tailed ptarmigan based on variables that are likely to be negatively impacted by climate change (Zimmerman et al. 2021, pp. 126-127). This suggests the adaptive capacity ( i.e., representation) of each subspecies, including Mount Rainier white-tailed ptarmigan, may be negatively impacted. Results from additional studies which are discussed under Climate change, above, support that suggestion, as they project a range decline of 86 percent for white-tailed ptarmigan throughout British Columbia, Canada, by the 2080s; we would expect to see a similar change in Washington State (Scridel et al. 2021, entire).

After developing four future scenarios based on downscaled climate and vegetation models, we found that the South representation area maintains much better future resiliency and redundancy than the North representation area. Mount Rainier is the only population unit in the range of the subspecies projected to have good resiliency across all four future scenarios. Mount Adams is also projected to remain extant, though with fair resiliency. Goat Rocks, however, along with all three population units in the North representation area, has poor resiliency in all four future scenarios. Overall, the number of sufficiently resilient population units will decrease in the future, reducing redundancy across the range. If population units in the North representation area decrease in resiliency to the point of extirpation, the ecological diversity present in the North representation area will be lost.

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

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

We evaluated the environmental and anthropogenic factors influencing Mount Rainier white-tailed ptarmigan and assessed the cumulative effect of those influences under the Act's section 4(a)(1) factors. The habitat-based stressors of climate change, mining, grazing, browsing, the invasive willow borer beetle, development, and recreation demonstrated varying degrees of localized effects to individual birds, but none of these stressors demonstrated effects to habitat at a level that is currently impacting the viability of the subspecies (Factor A). The best available information does not suggest that hunting (Factor B) or predation or disease (Factor C) are threats to the Mount Rainier white-tailed ptarmigan. Habitat for the Mount Rainier white-tailed ptarmigan is currently supporting populations of the subspecies, and approximately 70 percent of the entire range is protected from habitat loss as a result of development due to its wilderness designation (Factor D). We also evaluated disturbance associated with recreation effects, but the best available information does not indicate any current effect to populations or the viability of the subspecies (Factor E). We further examined the current information available on demographics and distribution of the subspecies, as well as availability and quality of suitable habitat in the subspecies' range. The best available information does not demonstrate any discernible trend for the condition ( e.g., increasing, declining, or stable) of the known populations of the Mount Rainier white-tailed ptarmigan. Although evidence of climate change related impacts to habitat already exists and these impacts are likely to continue in the foreseeable future, the subspecies currently exhibits adequate resiliency, redundancy, and representation. Thus, after assessing the best available information, we determined that the Mount Rainier white-tailed ptarmigan is not currently in danger of extinction throughout all of its range.

After assessing all the same stressors for future condition, we determined that mining, grazing, browsing, the invasive willow borer beetle, hunting, and disease will not affect the viability of the Mount Rainier white-tailed ptarmigan within the foreseeable future. Additionally, although the level of predation, development, and recreation may increase in the future, the best available information at this time does not indicate that they are reasonably likely to increase to a degree that will impact the viability of the subspecies within the foreseeable future.

In contrast, habitat loss and degradation resulting from climate change will affect the Mount Rainier white-tailed ptarmigan's viability within the foreseeable future. The best available scientific information indicates that changing habitat conditions associated with future climate change, such as loss of alpine vegetation and reduced snow quality and quantity (Factor A), are expected to cause populations of Mount Rainier white-tailed ptarmigan to decline. Furthermore, rising temperatures associated with climate change are expected to have direct impacts on individual birds (Factor E), which experience physiological stress at temperatures above 21°C (70 °F).

Two independent vegetation models (Bachelet et al. 2017, Rehfeldt et al. 2012) project that within the foreseeable future all alpine tundra vegetation will be lost to forest expansion in all but two of the population units (USFWS 2023, Appendix A). In the North Cascades, glaciers are projected to retreat between 92 percent and 96 percent within the next 50 to 80 years. Glacier melt in many of the watersheds of the eastern Cascade Range and low-moderate elevation watersheds of the western Cascades has already peaked or will peak in the current decade. Total discharge in August and September from snowmelt, rain, and glacial melt in Cascades watersheds has notably declined and is expected to continue to drop through 2080. Spring snowpack in Washington has already declined overall by 30 percent from 1955 to 2016 and is expected to further decline from 38 to 46 percent by midcentury. The projected decreases in snowpack and glaciers and their associated meltwater, as well as changes in snow quality, decreasing wind, and advancing treeline and infill, could result in the loss of greater than 99 percent of the Mount Rainier white-tailed ptarmigan's currently available alpine tundra habitat and a related loss in the availability of thermal microrefugia for the subspecies (USFWS 2023, Appendix A).

Within 50 years, the climate within available suitable Mount Rainier white-tailed ptarmigan breeding and post-breeding habitat is expected to change significantly, such that the subspecies may remain in only one or two of the six current known extant population units. We can make reasonably reliable predictions about this threat and the subspecies' response; notable glacial retreat and tree expansion into alpine and subalpine meadows have already occurred in the range due to warming temperatures, and the best available information does not indicate that the rate of climate change will slow within the foreseeable future. The maximum two populations projected to remain in 50 years are insufficient to support the viability of the Mount Rainier white-tailed ptarmigan. Furthermore, it is unlikely that the Mount Rainier white-tailed ptarmigan will adapt to the changing climate by moving northward because alpine areas north of the subspecies' current elevational range are expected to undergo similar impacts due to climate change (Scridel et al. 2021, entire).

Thus, after assessing the best available information, we determined that the Mount Rainier white-tailed ptarmigan is likely to become in danger of extinction within the foreseeable future throughout all of its range.

Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so within the foreseeable future throughout all or a significant portion of its range. The court in Center for Biological Diversity v. Everson, 435 F. Supp. 3d 69 (D.D.C. 2020) ( Everson ), vacated the aspect of the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (Final Policy; 79 FR 37578, July 1, 2014) that provided that the Service does not undertake an analysis of significant portions of a species' range if the species warrants listing as threatened throughout all of its range. Therefore, we proceed to evaluating whether the species is endangered in a significant portion of its range—that is, whether there is any portion of the species' range for which both (1) the portion is significant; and (2) the species is in danger of extinction in that portion. Depending on the case, it might be more efficient for us to address the “significance” question or the “status” question first. We can choose to address either question first. Regardless of which question we address first, if we reach a negative answer with respect to the first question that we address, we do not need to evaluate the other question for that portion of the species' range.

Following the court's holding in Everson, we now consider whether there are any significant portions of the species' range where the species is in danger of extinction now ( i.e., endangered). In undertaking this analysis for the Mount Rainier white-tailed ptarmigan, we choose to address the status question first—we consider information pertaining to the geographic distribution of both the subspecies and the threats that the subspecies faces to identify portions of the range where the subspecies may be endangered.

We evaluated the range of the Mount Rainier white-tailed ptarmigan to determine if the subspecies is in danger of extinction now in any portion of its range. The range can theoretically be divided into portions in an infinite number of ways. We focused our analysis on portions of the subspecies' range that may meet the definition of an endangered species. For the Mount Rainier white-tailed ptarmigan, we considered whether the threats or their effects on the subspecies are greater in any biologically meaningful portion of the subspecies' range than in other portions such that the subspecies is in danger of extinction now in that portion.

We assessed the best available science on factors influencing the status of the subspecies, analyzing the scope, magnitude, and intensity of all potential stressors, including predation, disease, browsing, hunting, grazing, development, recreation, timber harvest, the invasive willow borer beetle, and effects of climate change. Although several of these factors may have localized effects on individual ptarmigan, we determined that no stressor is currently impacting the viability of the subspecies. However, changing habitat conditions associated with ongoing climate change, including reduced snow quality and quantity, reduced glacial melt and associated loss of alpine vegetation, and decreasing wind, are expected to cause populations of the Mount Rainier white-tailed ptarmigan to decline within the foreseeable future, adversely impacting the future condition and overall viability of the subspecies.

The statutory difference between an endangered species and a threatened species is the time horizon in which the species becomes in danger of extinction; an endangered species is in danger of extinction now while a threatened species is not in danger of extinction now but is likely to become so within the foreseeable future. Thus, we considered the time horizon for the effects of climate change, which are the threats that are driving the Mount Rainier white-tailed ptarmigan to warrant listing as a threatened species throughout all of its range. We then considered whether these threats are occurring in any portion of the subspecies' range such that the subspecies is in danger of extinction now in that portion of its range.

The best scientific and commercial data available indicate that the time horizon within which the Mount Rainier white-tailed ptarmigan will experience the effects of and respond to climate change is within the foreseeable future. Though some effects of climate change are already evident in parts of the range, the best scientific and commercial data available do not indicate that the resiliency of any Mount Rainier white-tailed ptarmigan populations is currently low. Therefore, we determine that the Mount Rainier white-tailed ptarmigan is not in danger of extinction now in any portion of its range, but that the subspecies is likely to become in danger of extinction within the foreseeable future throughout all of its range. This does not conflict with the courts' holdings in Desert Survivors v. U.S. Department of the Interior, 321 F. Supp. 3d 1011, 1070-74 (N.D. Cal. 2018), and Center for Biological Diversity v. Jewell, 248 F. Supp. 3d 946, 959 (D. Ariz. 2017) because, in reaching this conclusion, we did not apply the aspects of the Final Policy, including the definition of “significant,” that those court decisions held to be invalid.

Our review of the best scientific and commercial data available indicates that the Mount Rainier white-tailed ptarmigan meets the Act's definition of a threatened species. Therefore, we are listing the Mount Rainier white-tailed ptarmigan as a threatened species in accordance with sections 3(20) and 4(a)(1) of the Act.

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

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

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

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

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

Please let us know if you are interested in participating in recovery efforts for the Mount Rainier white-tailed ptarmigan. Additionally, we invite you to submit any new information on this subspecies whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT ).

Section 7 of the Act is titled Interagency Cooperation and mandates all Federal action agencies to use their existing authorities to further the conservation purposes of the Act and to ensure that their actions are not likely to jeopardize the continued existence of listed species or adversely modify critical habitat. Regulations implementing section 7 are codified at 50 CFR part 402. Section 7(a)(2) states that each Federal action agency shall, in consultation with the Secretary, ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat. Each Federal agency shall review its action at the earliest possible time to determine whether it may affect listed species or critical habitat. If a determination is made that the action may affect listed species or critical habitat, formal consultation is required (50 CFR 402.14(a)), unless the Service concurs in writing that the action is not likely to adversely affect listed species or critical habitat. At the end of a formal consultation, the Service issues a biological opinion, containing its determination of whether the federal action is likely to result in jeopardy or adverse modification.

Examples of discretionary actions for the Mount Rainier white-tailed ptarmigan that may be subject to consultation procedures under section 7 are land management or other landscape-altering activities on Federal lands administered by the U.S. Forest Service and National Park Service as well as actions on State, Tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq. ) or a permit from the Service under section 10 of the Act) or that involve some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency). Federal actions not affecting listed species or critical habitat—and actions on State, Tribal, local, or private lands that are not federally funded, authorized, or carried out by a Federal agency—do not require section 7 consultation. Federal agencies should coordinate with the local Service Field Office (see FOR FURTHER INFORMATION CONTACT ) with any specific questions on Section 7 consultation and conference requirements.

It is the policy of the Services, as published in the Federal Register on July 1, 1994 (59 FR 34272), to identify to the extent known at the time a species is listed, specific activities that will not be considered likely to result in violation of section 9 of the Act. To the extent possible, activities that will be considered likely to result in violation will also be identified in as specific a manner as possible. The intent of this policy is to increase public awareness of the effect of a listing on proposed and ongoing activities within the range of the species. Although most of the prohibitions in section 9 of the Act apply to endangered species, sections 9(a)(1)(G) and 9(a)(2)(E) of the Act prohibit the violation of any regulation under section 4(d) pertaining to any threatened species of fish or wildlife, or threatened species of plant, respectively. Section 4(d) of the Act directs the Secretary to promulgate protective regulations that are necessary and advisable for the conservation of threatened species. As a result, we interpret our policy to mean that, when we list a species as a threatened species, to the extent possible, we identify activities that will or will not be considered likely to result in violation of the protective regulations under section 4(d) for that species.

At this time, we are unable to identify specific activities that will or will not be considered likely to result in violation of section 9 of the Act beyond what is already clear from the descriptions of prohibitions and exceptions established by protective regulation under section 4(d) of the Act.

Questions regarding whether specific activities would constitute violation of section 9 of the Act should be directed to the Washington Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT ).

Section 4(d) of the Act contains two sentences. The first sentence states that the Secretary shall issue such regulations as she deems necessary and advisable to provide for the conservation of species listed as threatened species. Conservation is defined in the Act to mean the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Additionally, the second sentence of section 4(d) of the Act states that the Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 9(a)(1), in the case of fish or wildlife, or section 9(a)(2), in the case of plants. With these two sentences in section 4(d), Congress delegated broad authority to the Secretary to determine what protections would be necessary and advisable to provide for the conservation of threatened species, and even broader authority to put in place any of the section 9 prohibitions, for a given species.

The courts have recognized the extent of the Secretary's discretion under this standard to develop rules that are appropriate for the conservation of a species. For example, courts have upheld, as a valid exercise of agency authority, rules developed under section 4(d) that included limited prohibitions against takings (see Alsea Valley Alliance v. Lautenbacher, 2007 WL 2344927 (D. Or. 2007); Washington Environmental Council v. National Marine Fisheries Service, 2002 WL 511479 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules that do not address all of the threats a species faces ( see State of Louisiana v. Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when the Act was initially enacted, “once an animal is on the threatened list, the Secretary has an almost infinite number of options available to [her] with regard to the permitted activities for those species. [She] may, for example, permit taking, but not importation of such species, or [she] may choose to forbid both taking and importation but allow the transportation of such species” (H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973).

The 4(d) rule was developed considering our understanding of the Mount Rainier white-tailed ptarmigan's physical and biological needs, which in large part relies upon information from other white-tailed ptarmigan subspecies. Although there is some information on the subspecies' habitat, the majority of habitat and demographic information comes from other subspecies (particularly the southern white-tailed ptarmigan in Colorado, where there is considerable habitat connectivity and a very different climate). Given the unique aspects of the landscape and climate in the Cascades, significant uncertainty remains regarding the Mount Rainier white-tailed ptarmigan's specific needs and how and to what degree stressors are operating in the subspecies' habitat. For example, we do not fully understand the Mount Rainier white-tailed ptarmigan's winter habitat requirements, its winter food resources, or its reliance on snow roosting. We do not understand why some areas of apparently suitable habitat lack observational records of the subspecies. We also lack the demographic information necessary to understand to the degree to which the subspecies is at risk in the future from various forms of disturbance.

Considering these uncertainties and our requirement to develop a recovery plan for the Mount Rainier white-tailed ptarmigan, our 4(d) rule is designed to promote the subspecies' conservation by facilitating the viability of current populations, scientific study of the subspecies, and conservation and restoration of its habitat. As we learn more about the Mount Rainier white-tailed ptarmigan and its habitat, we will refine our conservation recommendations for the subspecies. The provisions of this 4(d) rule are some of many tools that we will use to promote the conservation of the Mount Rainier white-tailed ptarmigan.

Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. These requirements are the same for a threatened species with a species-specific 4(d) rule. Section 7 consultation is required for Federal actions that “may affect” a listed species regardless of whether take caused by the activity is prohibited or excepted by a 4(d) rule. A 4(d) rule does not change the process and criteria for informal or formal consultations and does not alter the analytical process used for biological opinions or concurrence letters. For example, as with an endangered species, if a Federal agency determines that an action is “not likely to adversely affect” a threatened species, the action will require the Service's written concurrence (50 CFR 402.13(c)). Similarly, if a Federal agency determines that an action is “likely to adversely affect” a threatened species, the action will require formal consultation and the formulation of a biological opinion (50 CFR 402.14(a)). Two Federal agencies, the NPS and USFS, manage approximately 95 percent of the U.S. portion of the Mount Rainier white-tailed ptarmigan's range (Table 1). Because consultation obligations and processes are unaffected by 4(d) rules, we may consider developing tools to streamline future intra-Service and inter-Agency consultations for actions that result in forms of take that are not prohibited by the 4(d) rule (but that still require consultation). These tools may include consultation guidance, Information for Planning and Consultation effects determination keys, template language for biological opinions, or programmatic consultations.

Exercising the Secretary's authority under section 4(d) of the Act, we have developed a rule that is designed to address the Mount Rainier white-tailed ptarmigan's conservation needs. As discussed previously in Summary of Biological Status and Threats, we have concluded that the Mount Rainier white-tailed ptarmigan is likely to become in danger of extinction within the foreseeable future primarily due to the projected effects of climate change, especially increasing temperatures and a loss of the conditions that support suitable alpine habitat (above treeline). Section 4(d) requires the Secretary to issue such regulations as she deems necessary and advisable to provide for the conservation of each threatened species and authorizes the Secretary to include among those protective regulations any of the prohibitions that section 9(a)(1) of the Act prescribes for endangered species. We are not required to make a “necessary and advisable” determination when we apply or do not apply specific section 9 prohibitions to a threatened species ( In re: Polar Bear Endangered Species Act Listing and 4(d) Rule Litigation, 818 F. Supp. 2d 214, 228 (D.D.C. 2011) (citing Sweet Home Chapter of Cmtys. for a Great Or. v. Babbitt, 1 F.3d 1, 8 (D.C. Cir. 1993), rev'd on other grounds, 515 U.S. 687 (1995))). Nevertheless, even though we are not required to make such a determination, we have chosen to be as transparent as possible and explain below why we find that the protections, prohibitions, and exceptions in this rule as a whole satisfy the requirement in section 4(d) of the Act to issue regulations deemed necessary and advisable to provide for the conservation of the Mount Rainier white-tailed ptarmigan.

The protective regulations for the Mount Rainier white-tailed ptarmigan incorporate prohibitions from section 9(a)(1) to address the threats to the species. Section 9(a)(1) prohibits the following activities for endangered wildlife: importing or exporting; take; possession and other acts with unlawfully taken specimens; delivering, receiving, carrying, transporting, or shipping in interstate or foreign commerce in the course of commercial activity; or selling or offering for sale in interstate or foreign commerce. This protective regulation includes all of these prohibitions because the Mount Rainier white-tailed ptarmigan is at risk of extinction in the foreseeable future and putting these prohibitions in place will help to preserve the subspecies' remaining populations, slow their rate of decline, and decrease cumulative or synergistic, negative effects from other threats.

Under the Act, “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Some of these provisions have been further defined in regulation at 50 CFR 17.3. Take can result knowingly or otherwise, by direct and indirect impacts, intentionally or incidentally. Regulating take will support the conservation of existing populations of the subspecies by facilitating their viability in the face of these projected environmental changes. Therefore, we are prohibiting take of the Mount Rainier white-tailed ptarmigan, except for take resulting from those actions and activities specifically excepted by the 4(d) rule. Exceptions to the prohibition on take include the general exceptions to take of endangered wildlife as set forth in 50 CFR 17.21 and additional exceptions, as described below.

Despite these prohibitions regarding threatened species, we may under certain circumstances issue permits to carry out one or more otherwise prohibited activities, including those described above. The regulations that govern permits for threatened wildlife state that the Director may issue a permit authorizing any activity otherwise prohibited with regard to threatened species. These include permits issued for the following purposes: for scientific purposes, to enhance propagation or survival, for economic hardship, for zoological exhibition, for educational purposes, for incidental taking, or for special purposes consistent with the purposes of the Act (50 CFR 17.32). The statute also contains certain exceptions from the prohibitions, which are found in sections 9 and 10 of the Act.

In addition, to further the conservation of the species, any employee or agent of the Service, any other Federal land management agency, the National Marine Fisheries Service, a State conservation agency, or a federally recognized Tribe, who is designated by their agency or Tribe for such purposes, may, when acting in the course of their official duties, take threatened wildlife without a permit if such action is necessary to: (i) Aid a sick, injured, or orphaned specimen; or (ii) Dispose of a dead specimen; or (iii) Salvage a dead specimen that may be useful for scientific study; or (iv) Remove specimens that constitute a demonstrable but nonimmediate threat to human safety, provided that the taking is done in a humane manner; the taking may involve killing or injuring only if it has not been reasonably possible to eliminate such threat by livecapturing and releasing the specimen unharmed, in an appropriate area.

We recognize the special and unique relationship that we have with our State natural resource agency partners in contributing to conservation of listed species. State agencies often possess scientific data and valuable expertise on the status and distribution of endangered, threatened, and candidate species of wildlife and plants. State agencies, because of their authorities and their close working relationships with local governments and landowners, are in a unique position to assist us in implementing all aspects of the Act. In this regard, section 6 of the Act provides that we must cooperate to the maximum extent practicable with the States in carrying out programs authorized by the Act. Therefore, any qualified employee or agent of a State conservation agency that is a party to a cooperative agreement with us in accordance with section 6(c) of the Act, who is designated by his or her agency for such purposes, will be able to conduct activities designed to conserve the Mount Rainier white-tailed ptarmigan that may result in otherwise prohibited take without additional authorization.

The 4(d) rule will also provide for the conservation of the species by allowing exceptions that incentivize conservation actions or that, while they may have some minimal level of take of Mount Rainier white-tailed ptarmigan, are not expected to rise to the level that would have a negative impact ( i.e., would have only de minimis impacts) on the species' conservation. The following exceptions to these prohibitions are expected to have negligible impacts to the Mount Rainier white-tailed ptarmigan and its habitat:

• Take that is incidental to facilitating human safety (such as rescue, fire, and other emergency responses) and the protection of natural resources. During emergency events, the primary objective of the responding agency must be to protect human life and property and this objective takes precedence over considerations for minimizing adverse effects to the Mount Rainier white-tailed ptarmigan.

• Take that is incidental to a person's lawfully conducted outdoor recreational activities such as hiking (including associated authorized pack animals and domestic dogs handled in compliance with existing regulations), camping, backcountry skiing, mountain biking, snowmobiling, climbing, and hunting where these activities are allowed. We consider outdoor recreation lawful if it is carried out in accordance with the recreation rules and limits established by the State, Federal, or Tribal agency managing the land. This exception does not apply to recreation planning activities by Federal or State agencies. Based on available information, these types of activities have the potential to disturb individual ptarmigan in localized areas representing a very small portion of the available habitat in the subspecies' range. Also, there are aspects of recreation that can be beneficial to the Mount Rainier white-tailed ptarmigan and other alpine species. USFS and NPS, through their recreational planning activities, can help educate the public and build advocacy for conservation of alpine habitats and species that are facing habitat loss due to climate change, including the Mount Rainier white-tailed ptarmigan. These and other partners can train alpine recreationists to become citizen scientists, helping us to better understand specific aspects of the biology of this subspecies that we are lacking. In the future, should recreation become a threat to the species, the Service may reconsider this exception.

• Take that is incidental to authorized habitat restoration actions consistent with the conservation needs of the Mount Rainier white-tailed ptarmigan. Activities associated with habitat restoration ( e.g., weeding, planting native forage plants, establishing watering areas) are likely to cause only short-term, temporary adverse effects, especially in the form of harassment or disturbance of individual ptarmigan. In the long term, the risk of these effects to both individuals and populations is expected to be mitigated as these types of activities will likely benefit the subspecies by helping to preserve and enhance the habitat of existing populations over time. We consider habitat restoration and enhancement activities authorized if they are consistent with Mount Rainier white-tailed ptarmigan conservation prescriptions or objectives that are specifically included in established Federal, State, or Tribal conservation plans.

• Take that is incidental to conducting lawful, authorized control of predators of Mount Rainier white-tailed ptarmigan, provided reasonable care is practiced to minimize effects to Mount Rainier white-tailed ptarmigan. For example, the common raven is currently managed within the range of greater sage-grouse in Washington and common ravens have large home ranges. A professional biologist documented travel of a raven collared at the Terrace Heights landfill in Yakima to Mount Rainier National Park (White 2021, in litt.). Ptarmigan are threatened in the foreseeable future by climate change and the persistence of the subspecies will rely on the conservation of existing populations, so predator control may be authorized by the Service for the purposes of conservation of the Mount Rainier white-tailed ptarmigan. Therefore, take of Mount Rainier white-tailed-ptarmigan associated with authorized predator control coordinated in advance with the Service will not be prohibited, as the benefit to the subspecies from this activity outweighs the risk to individual ptarmigan. Predator control activities may include the use of fencing, trapping, shooting, and toxicants to control predators, and related activities such as performing efficacy surveys, trap checks, and maintenance duties. Reasonable care for predator control may include, but would not be limited to, procuring and implementing technical assistance from a qualified biologist on habitat management activities, and best efforts to minimize Mount Rainier white-tailed ptarmigan exposure to hazards ( e.g., predation, habituation to feeding, entanglement, etc.). Any predator control conducted for the purposes of conservation of Mount Rainier white-tailed ptarmigan is considered authorized if it is carried out in accordance with the rules and limits established by the State, Federal, or Tribal agency managing the land and coordinated in in advance with the Service.

• Take that is incidental to lawfully conducted timber harvest or forest management activities, separate from those actions covered under the habitat restoration actions exception described above. During the summer, when timber harvest or forest management activities are likely to occur, white-tailed ptarmigan are rarely found in the vicinity of forested areas, but they may occur in alpine areas adjacent to treeline and thus would be within sight and sound of such activities. In the winter, ptarmigan may be found in openings in forested areas adjacent to their alpine habitat. Forest management activities in proximity to ptarmigan habitat may cause short-term, temporary adverse effects, especially in the form of harassment or disturbance of individual ptarmigan using habitats adjacent to forested areas; however, in the long term, these activities may benefit the subspecies by reducing the risk of wildfire near ptarmigan habitat, or by opportunistically creating alpine area openings that ptarmigan may use in winter. Legal and authorized forest management activities include, but are not limited to, timber harvest and fire and vegetation management. We consider forest management activities legal and authorized if they are carried out in accordance with the forest practices rules and limits established by the State, Federal, or Tribal agency managing the land.

• Take that is incidental to the authorized maintenance of any public or private infrastructure ( e.g., buildings, roads, parking lots, viewpoints, trails, designated camp sites, developed ski areas, and helicopter landing pads) and supporting infrastructure ( e.g., benches, signs, safety features) within or adjacent to Mount Rainier white-tailed ptarmigan habitat. Within the subspecies' range, most development and infrastructure, the largest of which is associated with Mount Rainier National Park, has been in place for decades or longer. The amount of land developed for roads, buildings, trail head facilities and parking lots, trails, benches, signs, safety features, designated camping sites, developed ski areas, and helicopter landing pads is a very small percentage of the subspecies' range, and available suitable habitat is abundant and remote. The maintenance of trails and infrastructure within the subspecies' range has the potential to temporarily disturb individual ptarmigan in localized areas. The best available information does not indicate that these types of routine maintenance are a threat to the species. We consider maintenance activities authorized if they are carried out in accordance with the rules established by the State, Federal, or Tribal agency managing the land. This exception would not extend to take associated with the development of new infrastructure.

As discussed above under Summary of Biological Status and Threats, increasing temperatures (Factor E) and a loss of the conditions that support suitable alpine habitat (Factor A) are driving the current and future status of the Mount Rainier white-tailed ptarmigan. A range of current and future activities could directly and indirectly impact the Mount Rainier white-tailed ptarmigan via direct take or loss of habitat. These activities may cause disturbance, harm, or mortality to individual ptarmigan, trampling of habitat, introduction of invasive species in habitat, and loss of habitat. These activities include: human safety and emergency response; the work of law enforcement and on-the-job wildlife professionals; lawful outdoor recreation in alpine areas in summer, or subalpine areas in winter; habitat restoration and predator control actions for purposes of Mount Rainier white-tailed ptarmigan conservation; forest management actions; and routine maintenance of infrastructure ( e.g., roads, trails, buildings, parking lots, etc.). The best available information indicates that these activities, when conducted in accordance with the law, will not put the viability of the Mount Rainier white-tailed ptarmigan at risk. Allowing the continuation of these activities while also prohibiting all other forms of take will facilitate Federal agencies in managing their land according to their priorities without unnecessary regulation while still supporting the conservation of the subspecies.

Nothing in this 4(d) rule will change in any way the recovery planning provisions of section 4(f) of the Act, the consultation requirements under section 7 of the Act, or the ability of the Service to enter into partnerships for the management and protection of the Mount Rainier white-tailed ptarmigan. However, interagency cooperation may be further streamlined through planned programmatic consultations for the subspecies between Federal agencies and the Service.

Section 4(a)(3) of the Act requires that, to the maximum extent prudent and determinable, we designate a species' critical habitat concurrently with listing the species. Critical habitat is defined in section 3 of the Act as:

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

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

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

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

Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12) require that, to the maximum extent prudent and determinable, the Secretary shall designate critical habitat at the time the species is determined to be an endangered or threatened species. At the time of our June 15, 2021, proposed rule, we determined that a designation of critical habitat would not be prudent. Our regulations (50 CFR 424.12(a)(1)) in place at that time stated that the Secretary may, but is not required to, determine that a designation would not be prudent in the following circumstances:

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

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

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

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

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

However, on April 5, 2024, jointly with the National Marine Fisheries Service, we published a final rule revising the regulations in 50 CFR 424.12 regarding circumstances when designation of critical habitat may not be prudent (89 FR 24300). In light of these regulation revisions, we will reevaluate our 2021 determination that the designation of critical habitat for the ptarmigan is not prudent under these revised regulations and publish a separate determination in the future in the Federal Register . In that determination, we will also respond to any comments related to critical habitat we received during the public comment period on the June 15, 2021, proposed rule (86 FR 31668).

Regulations adopted pursuant to section 4(a) of the Act are exempt from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq. ) and do not require an environmental analysis under NEPA. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This includes listing, delisting, and reclassification rules, as well as critical habitat designations and species-specific protective regulations promulgated concurrently with a decision to list or reclassify a species as threatened. The courts have upheld this position ( e.g., Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995) (critical habitat); Center for Biological Diversity v. U.S. Fish and Wildlife Service, 2005 WL 2000928 (N.D. Cal. Aug. 19, 2005) (concurrent 4(d) rule)).

In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with federally recognized Tribes on a government-to-government basis. In accordance with Secretary's Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that Tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes. All potentially affected Tribes were sent a letter highlighting our assessment of this subspecies and requesting information about the subspecies or other feedback. These Tribes included the three adjacent to the range of Mount Rainier white-tailed ptarmigan, the Sauk-Suiattle Indian Tribe, Snoqualmie Indian Tribe, and Yakama Nation, as well as others (the Confederated Tribes of the Chehalis Reservation; Cowlitz Indian Tribe; Lummi Nation; Muckleshoot Indian Tribe; Nisqually Indian Tribe; Nooksack Indian Tribe; Port Gamble S'Klallam Tribe; Puyallup Tribe of Indians; Samish Indian Nation; Squaxin Island Tribe; Stillaguamish Tribe of Indians; Suquamish Tribe; Swinomish Indian Tribal Community; Tulalip Tribes; and Upper Skagit Tribe). We did not receive any replies. We also sent notification of the impending publication of our proposed listing rule with an invitation to comment to all Tribes in the State of Washington on June 14, 2021; we received no comments from Tribes during the proposed rule's comment period.

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

The primary authors of this final rule are the staff members of the Fish and Wildlife Service's Species Assessment Team and the Washington Fish and Wildlife Office.

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