In FR Doc. 2024-26809, appearing on page 90547 in the Federal Register of Monday, November 18, 2024, the following corrections are made:

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2024-2545; Project Identifier MCAI-2024-00672-R” at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Dan McCully, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; phone: (404) 474-5548; email: william.mccully@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA issued Emergency AD 2024-24-51, dated November 20, 2024 (the emergency AD), to address an unsafe condition on all Airbus Helicopters Model EC225LP helicopters. The FAA sent the emergency AD to all known U.S. owners and operators of these helicopters. The emergency AD requires repetitively inspecting MRH sleeves having P/N 332A31-3071-00 and, depending on the results, replacing the MRH sleeve and its two blade pins. The emergency AD also prohibits installing this part-numbered MRH sleeve on any helicopter unless its requirements are met.

The emergency AD was prompted by Emergency AD 2024-0215-E, dated November 14, 2024, issued by EASA, which is the Technical Agent for the Member States of the European Union (EASA Emergency AD 2024-0215-E) (also referred to as the MCAI), to correct an unsafe condition on Airbus Helicopters EC 225 LP helicopters. This reported crack is the second crack in the same area of this part-numbered MRH sleeve. The FAA issued Emergency AD 2022-14-51, issued on July 1, 2022, which published as a Final rule; request for comments in the Federal Register on July 19, 2022 (87 FR 42951), following EASA Emergency AD 2022-0130-E, dated June 30, 2022 (EASA Emergency AD 2022-0130-E), to address the unsafe condition of the first crack. The MCAI states that investigation of the second cracked MRH sleeve determined that its crack initiation could not be attributed to the root cause of cracking in the same part-numbered MRH sleeve addressed by EASA Emergency AD 2022-0130-E. EASA considers the MCAI an interim action.

The FAA is issuing this AD to detect cracking in an MRH sleeve. This condition, if not addressed, could result in structural failure of an MRH sleeve, loss of a main rotor blade, and subsequent loss of control of the helicopter.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2024-2545.

The FAA reviewed EASA Emergency AD 2024-0215-E, which requires repetitively inspecting MRH sleeves having P/N 332A31-3071-00 and, depending on the results, replacing the MRH sleeve and its two blade pins. EASA Emergency AD 2024-0215-E also prohibits installing this part-numbered MRH sleeve on any helicopter unless its requirements are met.

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

These products have been approved by the aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA is issuing this AD after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.

This AD requires accomplishing the actions specified in EASA Emergency AD 2024-0215-E, described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this AD.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, EASA Emergency AD 2024-0215-E is incorporated by reference in this AD. This AD requires compliance with EASA Emergency AD 2024-0215-E in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this AD. Using common terms that are the same as the heading of a particular section in EASA Emergency AD 2024-0215-E does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA Emergency AD 2024-0215-E. Material required by EASA Emergency AD 2024-0215-E for compliance will be available at regulations.gov under Docket No. FAA-2024-2545 after this AD is published.

The FAA considers that this AD is an interim action. If final action is later identified, the FAA might consider further rulemaking then.

Section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq. ) authorizes agencies to dispense with notice and comment procedures for rules when the agency, for “good cause,” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without providing notice and seeking comment prior to issuance. Further, section 553(d) of the APA authorizes agencies to make rules effective in less than thirty days, upon a finding of good cause.

An unsafe condition exists that required the immediate adoption of Emergency AD # 2024-24-51, issued on November 20, 2024, to all known U.S. owners and operators of these helicopters. The FAA found that the risk to the flying public justified waiving notice and comment prior to adoption of this rule because an MRH sleeve is part of an assembly that is critical to flight of a helicopter. In addition, cracking of the MRH sleeve may lead to catastrophic destruction of the main rotor head and loss of the helicopter. Since a second crack has occurred in the same area of the affected MRH sleeve, and as the FAA has no information pertaining to the extent of cracking of MRH sleeves that may currently exist in helicopters, the initial actions required by this AD must be accomplished before the first flight of the day. These conditions still exist, therefore, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b).

In addition, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days, for the same reasons the FAA found good cause to forego notice and comment.

The requirements of the Regulatory Flexibility Act (RFA) do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because FAA has determined that it has good cause to adopt this rule without prior notice and comment, RFA analysis is not required.

The FAA estimates that this AD affects 29 helicopters of U.S. registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this AD.

Inspecting the MRH sleeves (up to 5 affected MRH sleeves per helicopter) will take 1 work-hour for an estimated cost of up to $85 per helicopter and $2,465 for the U.S. fleet, per inspection cycle. If required, replacing an MRH sleeve and its two blade pins will take 6 work-hours and parts will cost $115,000 for an estimated cost of $115,510 per replacement.

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

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

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

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

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

(2) Will not affect intrastate aviation in Alaska.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it establishes Class D airspace at Auburn University Regional Airport, Auburn, AL.

The FAA published a notice of proposed rulemaking for Docket No. FAA 2024-2062 in the Federal Register (89 FR 78832; September 26, 2024), proposing to establish Class D airspace and amend Class E airspace extending upward from 700 feet above the surface for Auburn University Regional Airport, Auburn, AL. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. Three favorable comments supporting the establishment of controlled airspace at Auburn University Regional Airport were received.

Class D and Class E airspace are published in paragraphs 5000 and 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11J, dated July 31, 2024, and effective September 15, 2024. FAA Order JO 7400.11J is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11.

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

This action amends 14 CFR part 71 by establishing Class D airspace for Auburn University Regional Airport, Auburn, AL, as a new air traffic control tower services the airport. Also, an airspace evaluation resulted in an amendment to decrease the size of the existing Class E airspace extending upward from 700 feet above the surface within a 6.9-mile radius by removing the extension of 1.6 miles on each side of the 237° bearing from the airport, extending from the 6.9-mile radius to 11 miles southwest of the airport.

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

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

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it would amend Class D and Class E airspace at Gainesville Regional Airport, Gainesville, FL.

The FAA published a notice of proposed rulemaking for Docket No. FAA 2023-2176 in the Federal Register (89 FR 63329; August 5, 2024), proposing to amend Class E airspace extending upward from 700 feet above the surface for Gainesville Regional Airport, Gainesville, FL. Also, we are proposing to replace the terms Notice to Airmen with Notice to Air Missions and Airport/Facility Directory with Chart Supplement in the Class D and Class E descriptions. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class D and Class E airspace are published in paragraphs 5000, 6002, and 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11J, dated July 31, 2024, and effective September 15, 2024. FAA Order JO 7400.11J is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11.

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

This action amends 14 CFR part 71 by amending Class E airspace extending upward from 700 feet above the surface for Gainesville Regional Airport, Gainesville, FL, by increasing the airspace within a 7-mile radius (previously 6 miles) of Shands Cair Heliport, FL, serving multiple heliports. Additionally, this action also deletes the Point In Space Coordinates for Shands Hospital and uses Shands Cair Heliport as a reference to accommodate both hospitals' Class E airspace requirements. Also, this action replaces the terms Notice to Airmen with Notice to Air Missions and Airport/Facility Directory with Chart Supplement in the Class D and Class E descriptions. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations in the area.

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

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

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends the Class D airspace and Class E airspace extending upward from 700 feet above the surface and establishes a Class E airspace area designated as an extension to the Class D airspace at Flagstaff Pullman Airport, Flagstaff, AZ, to support IFR operations at this airport.

The FAA published an NPRM for Docket No. FAA-2024-2221 in the Federal Register (89 FR 77055; September 20, 2024) proposing to amend the Class D and Class E airspace and establish Class E airspace at Flagstaff Pullman Airport, Flagstaff, AZ. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. One comment was received supporting this action. No response is provided.

Class D and E airspace designations are published in paragraphs 5000, 6004, and 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11J, dated July 31, 2024, and effective September 15, 2024. FAA Order JO 7400.11J is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11.

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

This amendment to 14 CFR part 71:

Modifies the Class D airspace to within a 4.3-mile (decreased from a 5-mile) radius of the Flagstaff Pullman Airport, Flagstaff, AZ; removes the extension southeast of the airport as it is no longer required; and replaces the outdated terms “Notice to Airmen” and “Airport/Facility Directory” with “Notice to Air Missions” and “Chart Supplement”;

Establishes a Class E airspace area designated as an extension to the Class D airspace extending from the 4.3-mile radius of Flagstaff Pullman Airport beginning at the point lat 35°12′33″ N, long 111°38′42″ W, to lat 35°16′44″ N, long 111°34′17″ W, then following the 9.6-mile radius from the airport clockwise to lat 35°02′27″ N, long 111°49′20″ W, to lat 35°06′38″ N, long 111°44′56″ W, then counterclockwise following the 4.3-mile radius to the point of origination;

And modifies the Class E airspace extending upward from 700 feet above the surface to within a 16.8-mile radius (previously defined by coordinates) of Flagstaff Pullman Airport; and removes the Class E airspace extending upward from 1,200 feet above the surface from the airspace legal description as it is no longer required.

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

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

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

This final rule amends the Pension Benefit Guaranty Corporation's (PBGC's) regulation on Disclosure and Amendment of Records Pertaining to Individuals under the Privacy Act (29 CFR part 4902) to exempt from disclosure information contained in a system of records for PBGC's Office of Negotiations and Restructuring/Office of General Counsel Case Management System. The exemption is needed because records in this system include investigatory material compiled for administrative, civil, and criminal law enforcement purposes.

PBGC's legal authority for this rulemaking is provided by section 4002(b)(3) of the Employee Retirement Income Security Act of 1974 (ERISA) and 5 U.S.C. 552a(k)(2).

PBGC administers two insurance programs for private-sector defined benefit pension plans under title IV of the Employee Retirement Income Security Act of 1974 (ERISA): a single-employer plan termination insurance program and a multiemployer plan insolvency insurance program. In addition, PBGC administers a special financial assistance program for certain financially distressed multiemployer plans.

As a Federal agency, PBGC is subject to the Privacy Act of 1974, 5 U.S.C. 552a (Privacy Act), in its collection, maintenance, use, and dissemination of any personally identifiable information that it maintains in a “system of records.” A system of records is defined under the Privacy Act as “a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual.”  1

PBGC previously established a system of records, “PBGC-19, Office of Negotiations and Restructuring/Office of General Counsel Case Management System.” This system of records was last published in the “Notice” section of the Federal Register on September 9, 2024, at 89 FR 73196.

This system collects and maintains personally identifiable information obtained by the Office of General Counsel in matters involving administrative, civil, or criminal law enforcement investigations. Records from this system are used on a need-to-know basis to manage various legal matters; to facilitate administrative, civil, or criminal law enforcement investigations and activities; to receive referrals for investigation from internal and external partners; to meet other Office of General Counsel program requirements; and to investigate/manage cases involving violations of administrative, civil, or criminal laws.

On October 22, 2024 (89 FR 84314), PBGC published a proposed rule to amend its Privacy Act regulation (29 CFR part 4902) to exempt certain records that will be maintained in PBGC-19 from certain provisions of the Privacy Act, and to make other minor changes. PBGC received no comments on the proposed rule. The final regulation is unchanged from the proposed regulation except for editorial changes to conform some system names.

Under section 552a(k) of the Privacy Act, PBGC may promulgate regulations exempting information contained in certain systems of records from specified sections of the Privacy Act including the section mandating disclosure of information to an individual who has requested it. Among other systems, PBGC may exempt a system that is “investigatory material compiled for law enforcement purposes.”  2 Under this provision, PBGC has exempted, in §§ 4902.10, 4902.11, and 4902.12 of its Privacy Act regulation, records of the investigations conducted by its Personnel Security Department contained in “PBGC-12, Personnel Security Investigation Records,” records of the investigations conducted by the Office of Inspector General contained in “PBGC-17, Office of Inspector General Investigative File System,” and records of insider threat investigations conducted by PBGC contained in “PBGC-26, PBGC Insider Threat and Data Loss Prevention.”

The PBGC-19, Office of Negotiations and Restructuring/Office of General Counsel Case Management System contains: (1) records derived from the Office of Inspector General, Personnel Security, or insider threat investigations, (2) summaries or reports containing information about administrative, civil, and criminal legal investigations, (3) information related to investigative or analytical efforts by PBGC legal, security, or law enforcement personnel, (4) reports about potential administrative, civil, or criminal law enforcement activities obtained through the management and operation of the Office of General Counsel, and (5) reports about potential civil or criminal legal investigations obtained from other Federal Government sources involving PBGC. The records contained in this system include investigative material of actual, potential, or alleged criminal, civil, or administrative violations and law enforcement actions. These records are within the material permitted to be exempted under section 552a(k)(2) of the Privacy Act.

This final rule amends PBGC's Privacy Act regulation to redesignate § 4902.13 (Filing rules; computation of time) as § 4902.14 and to add a new § 4902.13 as an exemption for PBGC-19, Office of Negotiations and Restructuring/Office of General Counsel Case Management System, from 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I) and (f). Exemption from these sections of the Privacy Act means that, with respect to records in the system, PBGC is not required to: (1) disclose records to an individual upon request, (2) keep an accounting of individuals who request records, (3) maintain only records as necessary to accomplish an agency purpose, or (4) publish notice of certain revisions of the system of records. In addition, this final rule makes changes to some of the system names previously used in part 4902 to conform them to the systems of records published in the Federal Register on September 9, 2024, at 89 FR 73196.

The Office of Management and Budget (OMB) has determined that this rulemaking is not a “significant regulatory action” under Executive Order 12866. Accordingly, OMB has not reviewed the final rule under Executive Order 12866.

PBGC certifies under section 605(b) of the Regulatory Flexibility Act that this final rule will not have a significant economic impact on a substantial number of small entities. The rule will only affect the maintenance and disclosure of information about individuals by PBGC under the Privacy Act and therefore will have no economic impact on entities of any size. Accordingly, sections 603 and 604 of the Regulatory Flexibility Act do not apply. See 5 U.S.C. 603, 604.

In consideration of the foregoing, PBGC is amending 29 CFR part 4902 as follows:

The Coast Guard is issuing this temporary rule under the authority in 5 U.S.C. 553(b)(B). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. The Coast Guard was notified of these vessels' transit and cargo on November 22, 2024. There is insufficient time to publish an NPRM before this operation because the security zone must be established by December 1, 2024, to ensure security of the vessels and the surrounding area and there is insufficient time to provide a reasonable comment period and to consider those comments before issuing the rule.

Under 5 U.S.C. 553(d)(3), the Coast Guard also finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be contrary to the public interest because quick action is needed to provide for the security of this vessel and its surroundings while it is in transit.

The Coast Guard is issuing this security zone regulation under the authority in 46 U.S.C. 70051 and 70124. The Captain of the Port, Sector Corpus Christi (COTP) has determined that potential hazards are associated with the transit of the Motor Vessels (M/V) CLEAN FUTURE and HELLAS DIANA. There is a security concern within a 500-yard radius of these vessels when they are loaded and are transiting while loaded. This rule is needed to provide for the safety and security of the vessels, their cargo, and the surrounding waterway from terrorist acts, sabotage, or other subversive acts, accidents, or other events of a similar nature while the vessel is transiting within Corpus Christi, TX.

The Coast Guard is establishing a 500-yard radius, temporary, moving security zone around M/Vs CLEAN FUTURE and HELLAS DIANA. Other mariners and vessels will be able to identify the security zone because of the M/Vs CLEAN FUTURE and HELLAS DIANA's names clearly marked on their stern, and port and starboard sides. The zone for the vessels will be effective from December 1, 2024, through December 16, 2024, and will be enforced when the vessels are cargo loaded and transiting the Corpus Christi Ship Channel and La Quinta Ship Channel to protect the vessels, their cargo, and the surrounding waterways from terrorist acts, sabotage, or other subversive acts, accidents, or other events of a similar nature while the vessel is traveling within the La Quinta Ship Channels and Corpus Christi Ship Channels.

No vessel or person will be permitted to enter the security zone without obtaining permission from the COTP or a designated representative. As used in this section, “designated representative” means a Coast Guard Patrol Commander, including a Coast Guard coxswain, petty officer, or other officer operating a Coast Guard vessel and a Federal, State, and local officer designated by or assisting the Captain of the Port, USCG Sector Corpus Christi (COTP) in the enforcement of the security zone. Persons or vessels desiring to enter or pass through each zone must request permission from the COTP or a designated representative on VHF-FM channel 16 or by telephone at 361-939-0450. If permission is granted, all persons and vessels must comply with the instructions of the COTP or designated representative. The COTP or a designated representative will inform the public through Broadcast Notices to Mariners and Marine Safety Information Bulletins (MSIBs) as appropriate for the enforcement times and dates for the security zone.

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

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

This regulatory action determination is based on the size, duration, and location of the security zone. This rule will impact a small, designated area of 500-yards around the moving vessel in the Corpus Christi Ship Channel and La Quinta Ship Channel as the vessel transits these channels over a period of approximately four hours or less. Most vessels will be able to move around the security zone and therefore the impediment to the movement of other vessels will be minimal. Moreover, the rule allows other vessels to seek permission to enter the zone.

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

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

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

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

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

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

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f) and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a moving security zone lasting for the duration of time that the M/V CLEAN FUTURE and HELLAS DIANA is within the Corpus Christi Ship Channel and La Quinta Channel while loaded with cargo. It will prohibit entry within a 500-yard radius of the M/V CLEAN FUTURE and HELLAS DIANA while the vessel is transiting loaded within Corpus Christi Ship Channel and La Quinta Ship Channel. It is categorically excluded from further review under L60(a) in Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

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

The National Park System includes any area of land or water administered by the NPS. 54 U.S.C. 100501. The mission of the NPS is to preserve unimpaired the natural and cultural resources and values of the National Park System for the enjoyment of this and future generations. 54 U.S.C. 100101. Since it was created in 1916, the National Park System has expanded to 431 units covering more than 85 million acres in all 50 states, the District of Columbia, and U.S. territories. A general statutory authority, codified at 54 U.S.C. 100902, allows the Secretary of the Interior, acting through the NPS, to issue ROW permits for public utilities and communication facilities within System units. Specifically, this authority authorizes the NPS to issue ROW permits for:

• electrical plants, poles, and lines for the generation, transmission, and distribution of electrical power;

• telephone and telegraph purposes;

• canals, ditches, pipes and pipe lines, flumes, tunnels, or other water conduits and water plants, dams, and reservoirs used to promote irrigation or mining or quarrying, or the manufacturing or cutting of timber or lumber, or the supplying of water for domestic, public, or any other beneficial uses;

• poles and lines for communication purposes; and

• radio, television, and other forms of communication transmitting, relay, and receiving structures and facilities.

The NPS may not issue a ROW permit for any purpose that is not identified in 54 U.S.C. 100902, unless the NPS is separately authorized to do so by law, such as through the Alaska National Interest Lands Conservation Act (ANILCA) or legislation specific to a System unit. In limited circumstances such as where authorized by legislation specific to a System unit, or where exclusively serving NPS facilities or authorized concessioner facilities, the NPS may issue ROW permits to utilities for the operation and maintenance of petroleum product pipelines.

Under the general authority in 54 U.S.C. 100902, a ROW shall be allowed within a National Park System unit only on the approval of the Secretary, acting through the NPS. The NPS may issue a ROW permit only on a finding that the ROW is not incompatible with the public interest. The statute establishes duration and size limits for ROWs and authorizes the NPS to revoke ROW permits. The Secretary, acting through the NPS, is authorized to implement the statute through regulations.

Before 1980, the NPS managed ROW permits under Bureau of Land Management (BLM) regulations at 43 CFR 2800. Those regulations no longer applied to System units after BLM revised them in 1980. That same year, the NPS promulgated its own regulations (45 FR 47092) that matched the provisions of 43 CFR 2800, with some editorial changes. The NPS regulations are codified at 36 CFR part 14 and have not been revised since, except for minor changes in 1995 (60 FR 55789 at 55791) and 2018 (83 FR 2069). The NPS regulations are organized into eight subparts, with an Appendix, as follows:

The NPS's authority to grant ROWs within System units is discretionary, provided the allowed use is not incompatible with the public interest. When the NPS evaluates a request for a ROW permit, it considers whether the use will be consistent with applicable laws and policies that govern the administration of the System. Applicable laws include, but are not limited to, the NPS Organic Act and the National Historic Preservation Act (NHPA). Applicable policies include, but are not limited to, 2006 NPS Management Policies, Reference Manual 53B: Rights of Way, and guidance and planning documents for particular System units. ROW infrastructure proposed by permit applicants is not always compatible with the purposes for which the National Park System or the particular System unit was established, or with the protection of the resources and values of the System unit where it would be located. The NPS, to the greatest extent possible, seeks to minimize impacts to resources, visitors, and employees from the construction, installation, and maintenance and operation of infrastructure in System units. For this reason, it only issues ROW permits when there is no practicable alternative to the use of lands and waters within a System unit.

After this evaluation process, the NPS may determine that the proposed use is not appropriate in the System unit and location requested and deny the request. When they are approved, ROW permits most commonly allow for the operation and maintenance of common utilities such as fiber, water, and power lines, as well as cellular antennas and associated equipment such as cell towers. The NPS issues ROW permits to Federal, State, and local governments, Tribes, citizens, and organizations of the United States, including corporations, associations, partnerships, and non-profit organizations. Power companies and broadband providers (including cellular companies) regularly request ROW permits from the NPS. Unlike a deeded easement or fee simple ownership, a ROW permit does not convey or imply any property interest in the lands and waters subject to the ROW. Permittees may use a ROW permit only for the allowed uses and subject to permit terms and conditions that protect System unit resources, values, and visitors.

The NPS published a proposed rule in the Federal Register on June 10, 2024 (89 FR 48850). The NPS accepted public comments on the proposed rule for 60 days via the mail, hand delivery, and the Federal eRulemaking Portal at https://www.regulations.gov. Comments were accepted through August 9, 2024. The NPS received 16 comments on the proposed rule. The NPS received comments from operators, associations, utilities, non-governmental organizations, Indian Tribes, a State government, and private individuals. Commenters generally supported the proposed rule, with some offering clarifying language for the final rule. After considering public comments and after additional review, the NPS made five changes to the rule. The first change revises the first sentence of paragraph (a) in § 14.1 to clarify that the regulations in part 14 will be applied consistent with applicable Federal law. The second change revises the definition of “Special use permit for construction” for consistency with the definition of “Right-of-way permit” to include language that these permits do not convey any property interest in lands or waters. The third change includes a citation to clarify the authority under which the NPS will retain a portion of the use and occupancy fees to cover the costs of administering the ROW program. The fourth change clarifies that the NPS has discretion to decide whether it will include costs incurred for initial discussions (including pre-application meetings) in the application charge. The fifth change adds a new § 14.19 about severability (discussed below). A summary of the pertinent issues raised in the comments and NPS responses is provided below. The NPS does not summarize or respond to comments regarding property interests, such as easements and retained rights, held by private parties on lands and waters within System units because ROW permits do not convey property interests.

1. Comment: An Indian Tribe stated the rule should require consultation throughout the permitting process. An Alaska Native Claims Settlement Act Corporation (ANCSA Corporation) stated the rule should address the NPS's obligation to consult with ANCSA Corporations on the same basis as Indian Tribes.

NPS Response: The NPS and the DOI recognize the importance of their responsibility to consult with Tribes and take seriously their duties to (1) fulfill their legal obligations to identify, protect, and conserve Tribal trust resources; (2) carry out their trust relationship with Tribes and Tribal members; and (3) invite Tribes to consult on a government-to-government basis whenever there is a Departmental Action with Tribal Implications. (512 DM 4). Further, it is DOI policy to recognize and fulfill its legal obligations to consult with ANCSA Corporations on the same basis as Indian Tribes under Executive Order 13175 (512 DM 6). Paragraph (a)(1) of § 14.5 of the rule states that the NPS will issue a ROW permit only if the proposed use of lands and waters, and operation and maintenance of infrastructure are consistent with applicable laws and policies, including statutes governing administration of the National Park System, regulations, and NPS planning documents. Pursuant to DOI policy, during this evaluation the NPS will consider whether issuing the ROW permit would require consultation with Tribes or ANCSA Corporations. If so, the NPS will consult with those Tribes and ANCSA Corporations before issuing the ROW permit.

2. Comment: An Indian Tribe raised a concern that during the permit renewal process, the NPS could only consider impacts that occurred during the previous permit period, resulting in renewal decisions made with inadequate information.

NPS Response: The NPS seeks to facilitate meaningful dialogue and collaboration with Tribes to ensure that it respects their rights and interests as the steward of cultural resources within park areas. Section 14.12 of the rule addresses the ROW permit renewal process. This section clarifies that a ROW permit renewal means the issuance of a new, separate, consecutive ROW permit that the NPS approves before the expiration of an existing permit to authorize the continued use of lands and waters and the operation and maintenance of infrastructure. Timely requests for renewals allow the NPS to evaluate the continued appropriateness of the existing use and to complete required compliance actions. The NPS reviews the decision file for the existing ROW permit for any infractions, problems, or concerns. The NPS also may consider other, relevant information in its decision-making process that is not directly related to impacts that have occurred under the existing permit. If the NPS decides to renew a ROW permit, the new permit may have modified terms and conditions and special stipulations that are necessary to address impacts to resources.

3. Comment: An Indian Tribe stated that the rule should specifically allow the NPS to suspend or terminate a ROW permit for a failure to appropriately mitigate archaeological, cultural, or environmental impacts identified through consultation between the NPS and affected Tribes.

NPS Response: The NPS acknowledges the importance of mitigating impacts to resources caused by ROW permittees. Section 14.15 allows the NPS to suspend or terminate a ROW permit at any time, and states that the permittee may be provided an opportunity to cure the cause of the suspension or termination. Grounds for suspension or termination include resource protection concerns, failure to comply with ROW permit terms and conditions, and failure to comply with any provision in part 14. Failure to complete required mitigations would constitute grounds for suspension or termination for one or more of those reasons. It would raise concerns about the impacted resources. It would constitute a failure to comply with standard permit terms and conditions that require mitigation. It also could constitute a failure to comply with section 14.9 and paragraph (c)(5) of § 14.10, which allow the NPS to require mitigation for impacts to resources that are caused by permitted activities.

A standard term and condition of every ROW permit requires the permittee to suspend activities and notify the Superintendent upon discovery of archeological, paleontological, or historical resources, or threated or endangered species within or near the permitted area. When this occurs, the NPS will begin consultation with relevant Tribes if the affected resources have tribal implications under DOI policy. This consultation will include the identification of required mitigations.

4. Comment: Two commenters expressed concern that the rule would require the NPS to specify all operation and maintenance activities in the ROW permit and suggested instead that the NPS adopt the approach taken by the United States Forest Service (USFS) and the BLM that give permittees the option to submit an operation and maintenance plan with their permit application.

NPS Response: Nothing in this rule prevents an applicant from submitting a separate operation and maintenance plan or any other relevant information or additional documentation in support of their application. The NPS will use everything submitted to develop the ROW permit. Paragraph (a) of § 14.10 states that a ROW permit will authorize the permittee to conduct specific operation and maintenance, and that operation and maintenance not specifically authorized in the permit requires written authorization or an amended permit. This provision is important because the ROW is the authorizing legal instrument. A ROW permit can authorize activities, however, that are not stated in the permit itself. The NPS and the permittee can agree to incorporate an operation and maintenance plan by reference or as an attachment to the permit. These plans can be beneficial by identifying with more specificity the time, place, and manner for conducting authorized activities.

5. Comment: Two commenters encouraged the NPS to give permittees more flexibility to manage vegetation within and adjacent to the permitted area, including during unplanned emergencies. Specifically, these commenters encouraged the NPS to revise the proposed definition of “Operation and maintenance” to be consistent with the BLM's definition at 43 CFR 2801.5 and suggested the NPS add definitions for the terms “vegetation management” and “hazard trees”.

NPS Response: Vegetation management activities, including time, place, manner, and coordination requirements in both emergency and non-emergency situations, that are authorized in a ROW permit have been evaluated through required compliance actions that are necessary to understand potential impacts to park resources and visitors. Unauthorized vegetation management activities, within or outside of the permitted area, have not been properly evaluated and therefore require additional compliance actions and permitting. During the permitting process, the NPS may request and the applicant may provide information in support of vegetation management activities that will be authorized under the permit, including activities that will be allowed in emergency situations.

The NPS declines to revise the definition of “Operation and maintenance” to be consistent with the definition used by BLM. The statutory framework, mission, and mandates of the NPS are different from those of the BLM, and therefore the regulatory framework for managing ROWs on NPS-administered lands is necessarily different. The NPS also declines to define the terms “vegetation management” and “hazard tree” as they are defined in BLM regulations. These terms are not used in this rule. Each ROW permit will, as appropriate, identify authorized practices for vegetation management that may include tree trimming or removal. This approach will allow the NPS to tailor the authorized vegetation management activities to the specific circumstances of each permit.

6. Comment: One commenter asked the NPS to clarify how it will determine if an amendment to authorized uses and locations will be deemed “significant” and therefore require the permittee to submit another complete ROW permit application. Two commenters asked the NPS to adopt the BLM definition of “substantial deviation” in 43 CFR 2801.5 in order to clarify what activities are allowed without additional written authorization or permitting, including vegetation management actions.

NPS Response: Section 14.14 establishes procedures for amending an existing ROW permit. Paragraph (b)(2) states that significant modifications, changes, or additions to the authorized uses may require the submission of another complete ROW permit application. Amendments to an existing ROW permit may address operation and maintenance, the use and occupancy fee, a new permittee as a result of an approved transfer, or other terms and conditions. The NPS will determine whether the amendments require a new application on a case-by-case basis considering the specific circumstances of the request. An example of a significant change is a request to add new infrastructure outside of the permitted area. In this case, the NPS would likely require the permittee to submit an application for a new ROW permit.

The NPS declines to adopt the BLM definition of “substantial deviation” in this rule. As stated above, the statutory framework, mission, and mandates of the NPS are different from those of the BLM, and therefore the regulatory framework for managing ROWs on NPS-administered lands is necessarily different. Broad and general exceptions to what is deemed significant would remove the NPS's ability to adequately evaluate potential impacts to park resources, values, and visitors from significant changes to authorized activities. These types of changes should be addressed through a thorough permit application process and related compliance actions.

7. Comment: Two commenters questioned why the NPS would remove the permit term and condition in existing paragraph (d) of § 14.9 that directs permittees to take reasonable action to prevent and suppress fires on or near the lands occupied by the ROW. One commenter stated the NPS should adopt BLM's framework addressing prevention and suppression of wildfires which requires ROW permittees to do everything reasonable to prevent and suppress wildfires on or adjacent to the ROW area.

NPS Response: Allowing permittees to take unilateral action to prevent and suppress wildfire is no longer consistent with NPS practice and policy regarding fire prevention and suppression. The NPS has comprehensive policies regarding fire prevention and suppression, and it is important to allow those policies to operate without potential conflict with actions taken by permittees. (See Management Policies 4.5, Director's Order #18: Wildland Fire Management, Reference Manual 18, Director's Order #58: Structural Fire Management, Reference Manual 58). The NPS requires fire management plans for all System units that have burnable vegetation. Regarding particular ROWs, emergency operations and activities procedures are often case specific and appropriately stated in the ROW permit. Rather than give permittees a broad and general authority to take actions they deem reasonable, the NPS prefers to work with the permittee to establish the “reasonable” measures a permit holder may take to prevent fires in the permitted area, based on professional fire management expertise, specific knowledge of park resources, visitor use patterns, local weather patterns, fire history, science, and ecology.

8. Comment: One commenter recommended that the rule require the NPS to give permittees an opportunity to engage with the agency before NPS-initiated amendments are made to a ROW permit.

NPS Response: The NPS always endeavors to maintain professional relationships and open communication with permittees; however, many decisions regarding permit management are at the sole discretion of the NPS. If the NPS initiates an amendment, it will provide adequate notice to the permittee in accordance with paragraph (a) of § 14.14.

9. Comment: Two commenters asked the NPS to state in the rule that publicly regulated utilities are not required to show proof of acceptable financial assurance and liability insurance.

NPS Response: This rule does not mandate that all ROW permittees provide proof of acceptable financial assurance and liability insurance. Paragraph (h) of § 14.4 states that the NPS may require such proof as appropriate to the proposed project. The NPS makes decisions about the need to provide proof of acceptable financial assurance and liability insurance on a case-by-case basis to ensure protection of the public and NPS interests. There is no reason to exempt publicly regulated utilities from such requirements in all circumstances, even though some of them may be required to have reserves under applicable law.

10. Comment: One commenter stated the NPS should not be able to reverse its position regarding the not incompatible with the public interest and no practicable alternative determinations once it issues a conditionally approved ROW permit to the applicant.

NPS Response: A conditionally approved ROW permit is developed by NPS staff at the System unit and sent to the applicant for review and signature. This step in the permitting process benefits the applicant by providing them with a document that will be submitted for final approval by an NPS signing official. This provides the applicant with some indication of what might be approved and gives them an opportunity to sign the permit indicating to the NPS signing official that the permittee has agreed to specific authorizations, terms and conditions. Issuance of a conditional permit does not constitute final determinations of not incompatible with the public interest and no practicable alternative. Those determinations are final only when an appropriate NPS official signs and issues the ROW permit.

11. Comment: One commenter questioned the NPS's authority to require an applicant to demonstrate that there is no practicable alternative to location of the infrastructure within the National Park System in order to obtain a ROW permit. Another commenter supported this requirement but requested that the NPS clarify that differential location costs to the permittee should not be factor in this determination.

NPS Response: The NPS is responsible for the protection of resources within units of the National Park System, consistent with the purposes for which each System unit was established. The NPS, to the greatest extent possible, seeks to minimize impacts to resources, visitors, and employees from the construction, installation, maintenance and operation of infrastructure in System units. For this reason, the NPS issues ROW permits only when there is no practicable alternative to the use of lands and waters within a System unit. Applicants should have a demonstrable need to use NPS-administered lands or waters because the result of such use will impact the System unit. The NPS considers the totality of the circumstances when making these determinations. The relative cost of where the infrastructure could be located could be one factor because at some point costs can make a project prohibitive.

12. Comment: One commenter urged the NPS to allow electronic filing of ROW permit applications.

NPS Response: This rule does not mandate a particular method of filing a ROW permit application. The NPS accepts paper submissions and electronic submissions with digital signatures. Other methods may become available in the future and this rule will accommodate appropriate options.

13. Comment: One commenter asked the NPS to revise the definition of “permitted area” to require the identification of access routes to infrastructure and to guarantee the right of access.

NPS Response: The NPS always considers access in ROW permitting and includes identified and agreed upon routes in the permitted area when necessary. Access routes may be subject to change for various reasons including resource management concerns, changing conditions, and visitor use and enjoyment concerns. This rule defines a ROW permit as a discretionary and revocable special use permit issued by the NPS to authorize the use of lands and waters, and operation and maintenance. The definition states that a ROW permit does not grant, convey, or imply transfer of title to any interest in, including a leasehold or easement interest in, the lands or waters authorized for use. Paragraph (f)(4) of § 14.4 states that rights of access are not granted under a ROW permit and that access routes and means of access in ROW permits are revocable at the discretion of the NPS. Permittees may access ROWs only as may be stated in the ROW permit.

14. Comment: One commenter recommended the rule require the NPS to provide utilities with sufficient access for anticipated operation and maintenance and allow permittees to maintain access routes even in locations outside of the permitted area to ensure that the permittee can access its facilities.

NPS Response: The NPS authorizes access on a case-by-case basis after a compliance process that evaluates potential impacts to System unit resources, values, and visitors. Access routes are resource, time, place, and manner specific, and are influenced by the purposes, values, and resources of the System unit. Requiring the NPS to provide “sufficient” access could lead to disagreement about what routes and means of access are sufficient. The NPS may in its discretion issue separate permits for activities outside of a permitted area but only after it has completed required compliance actions.

15. Comment: One commenter asked the NPS to clarify how it will regulate means of access to a permitted area and to state that permittees may use whatever means of access is appropriate for planned operation and maintenance.

NPS Response: The NPS considers means of access in the permitting process and evaluates them through the same compliance processes that apply to other aspects of the ROW. Means of access can have very different impacts to resources and visitors. Access by an all-terrain vehicle will have different impacts than access by a conventional motor vehicle such as a truck. Some areas may only be accessible by certain means of access such as snow machines, cranes, and helicopters. The NPS must maintain control over the authorized means of access in order to adequately protect resources and visitors. Allowing permittees to use whatever means of access they deem appropriate would prevent the NPS from exercising management responsibly for the affected System unit.

16. Comment: Two commenters suggested that the NPS include construction activities within the scope of a ROW permit.

NPS Response: Initial construction of infrastructure generally requires a larger permitted area with equipment and activities that are not relevant to long-term operation and maintenance, and it is therefore permitted separately. In the past, permittees have relied upon outdated language in ROW permits that had authorized initial construction to take unauthorized actions outside of the permitted area related to ongoing operation and maintenance. As has been stated, unauthorized actions have not been evaluated for potential impacts to System unit resources, values and visitors and therefore need additional compliance and permitting before they may occur.

17. Comment: One commenter suggested that the NPS remove the ability for the NPS to require applicants to provide an affidavit stating that all other required land rights, water rights, permits, certifications, approvals, and authorizations necessary for a viable project have been secured. Another commenter suggested that the affidavit should be required in all cases.

NPS Response: The NPS declines to make any changes to paragraph (f) of § 14.11. As stated above, the NPS seeks to minimize impacts to System unit resources to the greatest extent possible from the construction of infrastructure in park areas. The NPS would not meet this standard if it issued special use permits (SUPs) for construction, with resulting impacts, when the permittee does not have the authorizations required to operate a viable project in the ROW. This concern is most present when operation and maintenance activities within the ROW will be part of a larger project occurring outside of the National Park System. In other situations, such as when the NPS has verified that all other necessary approvals have been obtained, an affidavit may not be necessary and therefore requiring it in every case would result in unnecessary delays.

18. Comment: Some commenters encouraged the NPS to establish timelines for notifying applicants whether an application is complete.

NPS Response: The final rule encourages the applicant to request a pre-application meeting with the NPS to help the NPS understand the scope of the request and to advise potential applicants, early in the permitting process, about permitting considerations and procedures, and possible timelines. The NPS endeavors to provide prompt notice to applicants regarding the completeness of their application after receipt of an initial application. Notice may be delayed, however, by practical challenges related to the complexity of the proposal and the administrative capacity at the System unit to process the application. Completing the permit application accurately and providing supporting documentation is crucial to an efficient process. So are maintaining open lines of communication and responding promptly to requests for additional information or clarification. Given all of the variables including any externally required timelines that influence the permitting process, the NPS prefers to omit timelines from the rule.

20. Comment: Two commenters suggested that rule should allow the NPS to extend the term of a ROW permit by more than one year. Another commenter asked the NPS to provide more flexibility in the ROW permit renewal process so that ROW holders seeking timely renewal do not find themselves in trespass due to the NPS's failure or inability to renew the ROW before the expiration of the current term.

NPS Response: The purpose of allowing amendments to ROW permits is to allow the NPS and the permittee to agree upon minor changes to authorized uses or to the terms and conditions that apply to such uses. As a general matter, the term of ROW permit is fixed so that the NPS has the opportunity to reevaluate the uses that have been authorized under the existing permit to ensure that those uses should continue consistent with the standards for issuing ROWs in park areas. The NPS recognizes, however, that ROW permitting processes can experience delays. Allowing an amendment to extend the term by one year enables the NPS and the permittee enter into a new ROW permit before the existing term expires.

The statement in paragraph (c) of § 14.11 that infrastructure left behind after the expiration of a ROW permit will be considered in trespass is necessary to help ensure that infrastructure is not abandoned with resulting impacts to the System unit. The NPS endeavors to work with permittees to effectuate timely renewals of existing ROW permits to the maximum extent possible.

21. Comment: One commenter asked the NPS to clarify that 50 years will be the standard ROW permit term unless the NPS determines that a 50-year term would be inappropriate, on a case-by-case basis, for the specific project and System unit.

NPS Response: The NPS evaluates each request for a ROW permit on a case-by-case basis. This rule states the NPS may issue a permit for a term of up to 50 years when determined appropriate and consistent with applicable law and policy. NPS declines to set a standard permit term in this rule in order to maintain discretion and flexibility to establish terms that are appropriate to the uses and circumstances presented by each request.

22. Comment: One commenter stated the NPS should reduce the use and occupancy fee associated with access routes.

NPS Response: This rulemaking does not establish the amount of use and occupancy fees in any case. A use and occupancy fee is owed to the United States in an amount equal to the fair market value for the use and occupancy of federally owned lands and waters within the National Park System under a ROW permit. Use and occupancy fees are charged as a single fee for all of the authorized uses within the permitted area, including any routes or means of access. They are not charged or evaluated separately.

23. Comment: One commenter recommended that the rule state that the NPS will include administrative costs incurred to hold pre-application meetings in permit application fees.

NPS Response: The NPS does not typically recover its costs for pre-application meetings in permit application fees. This may occur, however, if the potential applicant requests more than one meeting or makes demands that result in the NPS expending more time and resources than normal. The NPS prefers to maintain discretion to include these costs in the permit application fee or not, depending upon the circumstances. The NPS has revised the rule to clarify that it has discretion to decide whether it will include costs incurred for initial discussions (including pre-application meetings) in the application charge.

24. Comment: One commenter asked the NPS to provide typical or expected charges for processing permit applications, and to clarify how it will determine fair market value when it assess the use and occupancy fee.

NPS Response: The NPS may recover its costs incurred to provide necessary services associated with SUPs, including ROW permits and SUPs for construction. 54 U.S.C. 103104. This includes costs incurred to process permit applications and manage permitted activities. More specifically, they may include costs associated with compliance actions that evaluate potential impacts; appraisals of fair market value; reviewing applications and related materials, drafting correspondence and permits; management discussions regarding the proposal and any changes; and resource surveys of the proposed permit area. The amount charged is based on actual costs incurred by the NPS and is therefore specific to each application and permit. The rule provides a formula for calculating the minimum charge based upon two hours of staff time at the permit coordinator and superintendent level (as applicable). NPS staff can discuss cost recovery in a pre-application meeting and explain the types of costs that are included in a bill for collection.

Under the existing regulations, the amount charged as a use and occupancy fee must be determined by an appraisal of fair market value. This rule will allow the NPS to use any DOI-approved valuation method to determine fair market value, providing more flexibility and efficiency that should decrease administrative costs to the NPS.

25. Comment: Several commenters requested revisions to the provisions about co-location. One commenter stated that the requirement that applicants must design new infrastructure to accommodate future co-location should not lead the NPS to require co-location in every situation. Other commenters asked the NPS to revise this paragraph to include some additional considerations, such as cost, feasibility, and likelihood of future requests for co-location.

NPS Response: The purpose of the design requirement in paragraph (g)(1) of § 14.4 is to preserve the opportunity to co-locate infrastructure in the future. The NPS recognizes co-location is not appropriate in all circumstances and this rule does not mandate it. This is consistent with paragraph (g)(2) which acknowledges that some infrastructure will be placed in new or undisturbed locations. The considerations identified in paragraph (g)(1) do not apply to the NPS's decision to require co-location or not, those considerations apply to the applicants design of infrastructure. The NPS considers many factors when determining if co-location is appropriate, including cost, feasibility, and the likelihood of future requests.

26. Comment: One commenter suggested that the NPS not require a ROW permit for co-locating infrastructure on an existing permitted structure.

NPS Response: The NPS states a preference for co-location in the rule because co-location reduces incremental impacts to System unit resources by adding infrastructure to locations that have already been disturbed. There are still impacts from installing co-located infrastructure, however, in addition to impacts from operation and maintenance including routes and means of access. For these reasons, the NPS must maintain management control of co-located infrastructure using a ROW permit.

27. Comment: Several commenters asked about potential conflicts between the provisions of this rule and other applicable Federal laws. One commenter recommended the rule require the NPS to approve or deny a complete application for a ROW permit and a SUP for construction within 270 days, consistent with the MOBILE NOW Act. Several commenters stated there were conflicts with ANILCA and its implementing regulations, requesting clarity and seeking edits to the rule.

NPS Response: The NPS understands that other Federal laws may apply to its management of ROWs in System units, and will follow all such laws to the extent they apply in any particular situation. To be inclusive and to avoid inadvertently creating inconsistencies or gaps regarding other applicable laws, the NPS does not address the provisions of any other Federal law in this rule. The NPS has clarified, however, that the regulations in part 14 apply consistent with applicable Federal law by adding “Consistent with applicable Federal law,” to the beginning of paragraph (a) of § 14.1. This includes, but is not limited to, possibly applicable Federal law such as Title XI of ANILCA (Transportation and Utility Systems In and Across, and Access Into, Conservation System Units) and its implementing regulations in 43 CFR part 36 for managing ROWs in Alaska. To the extent there is an irreconcilable conflict between applicable Federal law and part 14, the other applicable Federal law will control.

28. Comment: One commenter encouraged the NPS to define the terms “mitigation” and “public interest.”

NPS Response: These terms are undefined because the meaning of each term is dependent upon the particular context and circumstances of the situation in which they are used. The permit negotiation process is an opportunity to reach a mutual understanding of the meaning of these terms that is context-specific, This approach facilitates effective communication and collaboration among all parties involved and greater flexibility as needed in each situation. As necessary and appropriate, agreed-upon definitions can then be included in permits, providing a clear reference point for compliance and enforcement.

The NPS further explains each of the changes to NPS regulations below. In addition to the changes described in more detail below, this rule simplifies how the regulations are organized by replacing the eight existing subparts with sections that have clear and concise titles addressing ROW permitting for all types of use and infrastructure. Sections 14.5, 14.20, 14.27, 14.32, 14.35, 14.53, 14.75, and 14.77 of the existing regulations have no content. This rule replaces § 14.5 and removes the rest. This rule removes Appendix A because the forms in this Appendix are outdated and no longer used by the NPS. This rule removes an authority citation to 23 U.S.C. 317 from part 14. This authority addresses highway easement deeds, which are not authorized through ROW permits.

Many of the changes remove or update outdated provisions to reflect current policies and practices. The changes in this rule will improve ROW permitting processes and align them more closely with those of other DOI bureaus, to the extent practicable and consistent with applicable law. This rule will improve the NPS's ability to protect resources and values, public health and safety, and visitor experience from potential impacts from the use of lands and waters within System units under a ROW permit, including from the operation and maintenance of infrastructure. The revised regulations will be easier for prospective and current permittees to find and understand, which will improve the effectiveness of NPS ROW program.

Existing regulations in § 14.1 state that the regulations in part 14 apply to all Federally owned or controlled lands administered by the NPS. This provision is unnecessary because the applicability and scope of NPS regulations in Title 36, Chapter I of the Code of Federal Regulations (36 CFR), which includes part 14, are defined in 36 CFR 1.2. This section states in paragraph (a)(1) that the regulations apply to all persons entering, using, visiting, or otherwise within the boundaries of federally owned lands and waters administered by the NPS.

New paragraph (a) in § 14.1 states that regulations in part 14 establish procedures an entity must follow when applying for a ROW permit and provisions under which the NPS may authorize a ROW permit within a National Park System unit, consistent with applicable Federal law. New paragraph (b) states that the regulations in part 14 ensure that the use of lands and waters, and operation and maintenance of infrastructure under a ROW permit will be (1) consistent with applicable statutory authorities, including the NPS Organic Act; (2) protect lands, waters, and resources of the System; and (3) protect visitor uses and experiences, as well as promote the health and safety of the public and NPS employees and volunteers.

This rule revises 36 CFR 1.2(b) and (d) to add references to part 14. This clarifies that, under paragraph (b), the regulations in part 14 generally do not apply on non-federally owned lands and waters or on Indian tribal trust lands located within System boundaries; and that, under paragraph (d), the regulations in Part 14 do not prohibit administrative activities conducted by the NPS or its agents. These changes reflect current NPS practice and will have no impact on the NPS's administration of ROWs in System units.

This rule revises § 14.2 of the existing regulations, which defines terms used in part 14. This rule removes the definition of “Superintendent” because it is already defined in 36 CFR 1.4. This rule removes the definition of “Park” because it is superfluous with the definitions of “park area” and “National Park System” in 36 CFR 1.4. This rule removes the definitions of “Authorized Officer,” “Construction work,” “Director,” and “Secretary” because those terms are not used in the revised regulations. This rule removes the definition of “Project” because that term is no longer used the way it is defined. Removing unnecessary defined terms will make the regulations more concise. This rule replaces the term “right-of-way” with a new term “right-of-way permit” that is more specific and clearer about what may be authorized, as explained below. This rule defines nine new terms in § 14.2, which are explained below. Revised § 14.2 lists defined terms in alphabetical order without paragraph designations.

This rule adds the term “Applicant” to mean an entity that has applied for a special use permit for construction of infrastructure or a ROW permit for use of lands and waters and operation or maintenance of infrastructure. Adding this term will allow the NPS to distinguish applicants from permittees, who have been issued valid permits, in the regulations.

This rule adds the term “Co-location” to mean the placement of infrastructure on or in existing authorized infrastructure owned or controlled by another or within an area authorized for use by another. This common industry practice is important for applicants to consider when designing infrastructure proposals and for the NPS to consider when assessing potential impacts to resources, values, and visitors.

This rule adds the term “Entity” to mean a party including, but not limited to, Federal, State, and local governments, Tribes, citizens, and organizations of the United States, including corporations, associations, partnerships, and non-profit organizations.

This rule adds the term “Infrastructure” to mean equipment, facilities, installations, or uses that the NPS may authorize under a ROW permit pursuant to statutory authority, with specific reference to 54 U.S.C. 100902.

This rule adds the term “Operation and maintenance” to mean the use of infrastructure, the means of access, and associated service on a routine and on-going basis to ensure good order, safe conditions, and timely repair, all as specifically authorized in a ROW permit.

This rule adds the term “Permitted area” to mean the area authorized for construction under a special use permit, and use of lands and waters, and operation and maintenance of infrastructure under a ROW permit, including routes and means of access through a System unit.

This rule adds the term “Permittee” to mean an entity that holds a valid special use permit for construction or ROW permit for use of lands and waters, and operation and maintenance of infrastructure. Adding this term helps distinguish entities that have valid permits from those that have expired or invalid authorizations, and from applicants who have requested a permit but do not yet have one.

This rule adds a definition for “Right-of-way permit” to mean a discretionary and revocable special use permit, issued by the NPS to authorize the use of lands and waters within System units for the operation and maintenance of infrastructure. The definition states that a ROW permit does not convey property interests in lands or waters. These statements in the new definition make portions of § 14.6 of the existing regulations, which make similar statements, unnecessary.

This rule adds the term “Special use permit for construction” to mean a discretionary and revocable special use permit issued by the NPS to authorize construction of infrastructure and associated construction activities within System units. Like that for ROW permits, this definition states that these permits do not convey property interests in lands or waters. These permits can authorize initial construction of infrastructure, addition of infrastructure, removal of infrastructure, and maintenance and repair activities not included in the ROW permit. Adding this term will distinguish activities authorized under ROW permits from those authorized under special use permits for construction.

This section of the final rule establishes a new provision encouraging potential permit applicants to contact the superintendent of the System unit to schedule a pre-application meeting to discuss the proposed project and the permitting process. The U.S. Fish and Wildlife Service (FWS) uses pre-application meetings for the same purpose. Although it would benefit the applicant and the NPS in most cases, this rule does not require a pre-application meeting because it may be unnecessary when the potential applicant and NPS staff are sufficiently familiar with the project and permitting process, such as with certain ROW permit renewals. This rule states that through a pre-application meeting, the NPS may provide early notice to potential applicants about applicable law and policy, documentation requirements, an expected timeline, and potential costs.

The goal of a pre-application meeting is to improve the permitting process through increased regulatory certainty. Pre-application meetings make the permitting process more efficient and transparent. Permit processing is delayed when applicants provide incomplete information to the NPS. The amount and type of documentation the NPS requires to process an application varies depending on whether the request is for new infrastructure where environmental disturbance will occur, or existing infrastructure where limited additional use of the infrastructure may have minimal or no new environmental impacts. A pre-application meeting enables the NPS to understand the scope of the request and advise potential applicants, early in the permitting process, about permitting considerations and procedures, such as: elements of a complete permit application, permit approval standards, natural and cultural resource concerns, visitor resource concerns, public health and safety concerns, park planning documents, land use restrictions ( e.g., wilderness), proposed location, proposed infrastructure, method and means of access, and potential fees. In addition, a pre-application meeting provides the applicant an opportunity to ask questions and receive comments from the NPS about the proposed ROW before submitting an application.

The NPS may charge fees to recover administrative costs incurred from pre-application meetings in certain circumstances. This may occur if there are multiple meetings requested by a potential applicant or where there are unusual demands made on NPS staff or leadership in terms of time or NPS resources on behalf of the potential applicant. Cost recovery will be collected in accordance with § 14.7 of the revised regulations (discussed below).

This section of the rule updates procedures for submitting a ROW permit application. Under the existing regulations, application requirements are addressed in multiple subparts and sections in part 14. This rule consolidates all application requirements into a single section. This will make it easier for applicants to identify what is required to submit a complete ROW application. Complete and timely applications allow the NPS to evaluate a proposal's potential effects and to conduct its compliance responsibilities under applicable Federal statutes such as the National Environmental Policy Act (NEPA) and the NHPA. The table below identifies how this rule reorganizes all of the existing application process requirements into a new § 14.4.

The following paragraphs explain how each paragraph of the new § 14.4 changes existing regulations about the permit application process.

Existing regulations in § 14.28 state that when an application is incomplete or does not conform with law, the NPS may either provide an applicant with an opportunity to correct deficiencies in a ROW permit application or reject the application outright. New paragraph (a) of § 14.4 states the NPS will not begin processing a ROW permit application until it has determined the applicant has complied with the requirements in part 14, including the submission of all required information. This change reflects existing practice because the NPS does not reject incomplete applications. Instead, the NPS informs applicants that they must provide additional information to complete the application before the NPS will begin formal review and processing. This practice is consistent with how other DOI bureaus handle incomplete applications and prevents the NPS from expending limited staff resources processing incomplete applications that do not have enough information to allow for a proper evaluation. Paragraph (a) further states that making this determination does not guarantee the NPS will issue a ROW permit.

Existing regulations in § 14.21 require the applicant to include some general information with an application ( e.g., a statement that the application is made pursuant to existing regulations, a citation to the statutory authority for the ROW, and a description of the purposes of the ROW), but do not require applications to be submitted on a specific form.

New paragraph (b) of § 14.4 requires applicants to use Standard Form 299 Application for Transportation and Utility Systems and Facilities on Federal Lands (SF-299) for all requests for ROW permits. Requiring the use of this form is consistent with Executive Order 13821, “Streamlining and Expediting Requests to Locate Broadband Facilities in Rural America,” dated January 8, 2018, which requires all Federal property managing agencies to use the SF-299, or the applicable common form approved by the General Services Administration at the time of the application. The NPS and most Federal property managing agencies ( e.g., BLM, USFS, FWS) already use this form for applicants seeking to operate and maintain infrastructure on lands administered by those agencies.

Paragraph (b) also requires that applicants provide all materials required in the SF-299 and elsewhere in part 14. If materials have been provided in connection with a ROW permit previously issued by the NPS for the same System unit, then the NPS may decide that the applicant is not required to resubmit those materials, provided the previous date of filing, place of filing, and existing ROW permit number are included in the new application. This provision will reduce the regulatory burden on applicants by ensuring that the NPS requests only the documentation that it requires to process an application. Finally, paragraph (b) requires applicants or their authorized representatives to sign the SF-299 and requires applicants to submit the application charge pursuant to § 14.7.

In paragraph (c) of this section, this rule consolidates and updates information requirements currently codified in § 14.23 for applicants that are corporations, and in § 14.24 for applicants that are individuals or associations of individuals. New paragraph (c)(1) contains required information for corporations. These requirements are not substantively different than what is currently required in § 14.23. New paragraph (c)(2) contains required information for partnerships, limited liability companies, and similar entities. These requirements are not substantively different than what is currently required in § 14.24 for associations of individuals. For individuals, new paragraph (c)(3) states applications must be accompanied by evidence of U.S. citizenship. This final rule omits outdated and extraneous language in existing § 14.24 about naturalization and marital status.

Existing regulations in § 14.25(a) contain detailed mapping requirements that are overly prescriptive and outdated. For example, the existing regulations require applicants to prepare maps on tracing linen, or on tracing paper having a 100 percent rag content. New paragraph (d) of § 14.4 simply requires maps to meet current NPS mapping standards. This would allow applicants to submit digital maps, which reflect current mapping technology. The NPS retains discretion to require an official land survey, legal description, and digital information when helpful or necessary to adequately assess an application. Consistent with current practice, new paragraph (d) also requires that maps, at a minimum, include the area proposed to be included in the ROW, including the placement of infrastructure, proposed access point and routes (including use of existing roads), and other areas associated with the ROW.

Existing paragraph (b) of § 14.25 allows the NPS to conditionally grant a ROW permit if doing so is a prerequisite for obtaining evidence of a water right from a State official. This provision has not been used by the NPS ROW Program and puts the NPS in the position of expending resources on speculative projects. Similar to the existing regulations, new paragraph (e) of § 14.4 requires, unless otherwise required by Federal law, that applicants requesting authorization to operate and maintain infrastructure to support the storage, diversion, conveyance, or use of water, include proof of a valid water right from the appropriate State official or State law as part of a complete application. This ensures that, for such projects, the NPS only issues ROW permits to applicants that hold valid water rights.

Existing regulations in § 14.7 allow the NPS to grant to a ROW holder an additional ROW for ingress and egress to the primary ROW. The additional ROW must be reasonably necessary to facilitate the use of the primary ROW, and may include the right to construct, operate, and maintain facilities necessary for ingress and egress. The regulations require the ROW holder to apply for the additional ROW in a similar manner that it applied for the primary ROW.

This rule creates an efficiency by removing the need to apply for an additional ROW for routes of access. As part of a complete ROW permit application, new paragraph (f) requires the applicant include a description of proposed access routes and means of access. This rule states that access routes and means of access will be limited to existing roads, or existing or NPS-approved routes, trails, or access points. The NPS has no general legal authority to authorize other entities to establish new roads in a System unit, including for purposes of accessing ROWs. For this reason, this rule states that ROW permits will not authorize the construction of new roads, unless specifically authorized by statute. Lastly, new paragraph (f) states that ROW permits do not grant a right of access and that agreed-upon access routes and means of access are discretionary and revocable. This statement will preclude requests that rights of access be expressly established in ROW permits, or that that they are implied by ROW permits that have been issued.

This rule creates a new regulatory provision to encourage the co-location of infrastructure in System units. The co-location of equipment can consolidate infrastructure in a geographic location and, at the same time, influence the footprint and dimensions of infrastructure at a particular site. For example, the location and design of a cell tower that would accommodate multiple cell antennae will be larger than a single user tower but may prevent towers in multiple locations. While there are cases where the installation of new or additional uses on existing infrastructure is not technologically possible or needs to be accomplished in a certain manner to avoid technical interference or conflict between the uses, whenever possible and visually acceptable, all utilities should share a common corridor. Consistent with this goal, new paragraph (g) requires applicants to design new infrastructure to accommodate future co-location to the greatest extent possible considering the potential impacts to System unit resources, values, public health and safety, and visitor experience. This paragraph also requires the applicant to demonstrate that they have evaluated all options for co-location with existing infrastructure prior to proposing a new or undisturbed location for infrastructure. Finally, the paragraph states that entities proposing to co-locate infrastructure must obtain a separate ROW permit.

Financial assurance ensures that in the event an operator becomes insolvent or defaults on its financial obligations under a ROW permit, in particular obligations to reclaim and restore the permitted area, adequate funds will be available for reclamation. The requirement for liability insurance ensures that the Federal Government does not assume any liability associated with the permittee's activities and that the permittee is covered for injuries to persons or property caused by permittee's activities.

Existing paragraphs (a)(11)-(14) of § 14.22 authorize the NPS to require an applicant to furnish security in an amount acceptable to the NPS for costs incurred to administer the ROW permit, including application costs, compliance costs, monitoring costs, and costs for protection and rehabilitation, and make certain permittees liable for such costs. These provisions are unnecessarily complicated and inconsistent with current practice because the NPS does not require financial assurance for administrative costs. Instead, this rule creates a new paragraph (h) of § 14.4 that states the NPS may require applicants to provide proof of acceptable financial assurance and liability insurance, as appropriate to the proposed project. This statement is more consistent with how the NPS and other agencies address financial assurance and liability insurance.

The NPS evaluates each application on a case-by-case basis depending on the scope, location, and nature of the proposed activity. This rule creates a new provision in paragraph (i) that specifically states that the NPS may require additional relevant information from an applicant before the superintendent will consider the application complete.

Section 14.5 of this rule explains how the NPS evaluates complete ROW permit applications. Paragraph (a) establishes standards that each ROW permit application must meet in order for the NPS to issue ROW permits. Paragraph (a)(1) states that the NPS will only issue a ROW permit if the applicant's proposal is not incompatible with the public interest and is consistent with applicable laws, including the laws governing administration of the National Park System, regulations, policy, and NPS planning documents. In part, this provision will ensure that the NPS meets its responsibility under the NPS Organic Act to conserve resources in the National Park System in such manner that will leave them unimpaired for the enjoyment of this and future generations. 54 U.S.C. 100101. Paragraph (a)(2) requires the applicant to demonstrate that there is no practicable alternative to location of the infrastructure within the National Park System. This provision is consistent with question 13 of the SF-299 which requires applicants to explain whether alternative locations exist and, if so, why they were not chosen, and why it is necessary to occupy Federal lands.

Paragraph (b) states that the NPS, after completing review of an application at the System unit, will notify the applicant in writing that the ROW application is conditionally approved, or denied with an explanation. If a ROW permit is conditionally approved, the NPS will send the applicant a final version of the ROW permit for signature.

Paragraph (c) requires the applicant to sign a conditionally approved ROW permit prior to its execution by the NPS. These requirements also apply to amended ROW permits, including transfers which are documented by an amendment. This is stated in paragraph (c) in § 14.13 and paragraph (e) of § 14.14 of the final rule. Paragraph (c)(2) clarifies that no ROW permit is valid until it has been executed by the NPS, which may not occur, in some cases, if further review by the NPS results in a determination that the ROW would not meet the standards identified in paragraph (a). Execution by the NPS represents final approval of a ROW permit.

Paragraph (d) allows the NPS, in its discretion, to suspend or terminate the application process at any time prior to execution of a ROW permit by the NPS if the applicant (1) is delinquent in paying any cost recovery, use and occupancy fees, or other debts to the Federal Government; (2) has an unresolved criminal or civil violation with the Federal Government; (3) has been notified that it is liable for damages under the System Unit Resource Protection Act (SURPA), 54 U.S.C. 100721-100725, for injuries to System resources, or has not resolved or fully paid response costs and damages under SURPA; or (4) has caused unpermitted resource damage, impacts to visitors, management problems, or the applicant has violated the terms and conditions of any permit issued by a Federal agency, including the NPS. This behavior and conduct provision is consistent with regulations for other Federal agencies. See, for example, 43 CFR 2804.25(b) and 2808.12 (BLM); and 36 CFR 251.54(e) (USFS). It gives fair notice to applicants that they must resolve the issues of behavior and conduct identified in paragraph (d) prior to applying for a ROW permit from the NPS.

This rule adds a new provision in § 14.6 that clarifies application withdrawal procedures. Paragraph (a) allows an applicant to withdraw an application at any time during the application process. Paragraph (b) creates a presumption, without further notice to the applicant, that the applicant has withdrawn its application if at any time during the permitting process an applicant fails to respond to a written communication from the NPS for a period of 90 days or longer. The NPS has experienced situations where an applicant demonstrates interest in seeking a ROW permit, engages NPS staff, begins an application process, and then abandons the proposal without notifying the NPS. Superintendents and other System unit staff have competing responsibilities and new applications for ROW permits are added to already developed workplans and workloads. This provision will help superintendents and other NPS staff prioritize active projects and devote limited resources toward serious and timely proposals. Paragraph (c) clarifies that once a permit application is withdrawn or presumed withdrawn, the permitting process is terminated. If the applicant wishes to restart the application process, it must submit a new SF-299 (or other approved common form).

The NPS has authority to recover actual costs it incurs to administer special use permits, including ROW permits and special use permits for construction, under 54 U.S.C. 103104. Existing sections 14.22 and 14.37 address the reimbursement of administrative costs to the NPS incurred both before and after the ROW permit is issued. These provisions are outdated because they were written before the NPS received its current statutory authority to recover costs under 54 U.S.C. 103104.

This rule replaces sections 14.22 and 14.37 with a new § 14.7 that addresses how the NPS recovers administrative costs from ROW permit applicants and permittees. Paragraph (a) states that the NPS will recover all costs from applicants and permittees under 54 U.S.C. 1030104 according to NPS cost recovery policy. This rule states that cost recovery can include administrative costs for withdrawn or denied applications and suspended or terminated ROW permits. Paragraph (b) requires applicants to pay an initial application charge, unless waived by the NPS pursuant to NPS cost recovery policy, and describes how the NPS calculates a minimum application charge based upon a reasonable estimate of the least amount of employee time needed to process applications. Paragraph (b) also clarifies that the minimum application charge will include costs incurred by the NPS for reviewing an application for completeness; and that the NPS has discretion to include costs incurred for initial discussions (including pre-application meetings). This does not represent the entirety of costs that may be recovered.

A use and occupancy fee is owed to the United States in an amount equal to the fair market value for the use and occupancy of federally owned lands and waters within the National Park System under a ROW permit. Existing § 14.26 is outdated and overly prescriptive, particularly in setting a valuation method. The existing regulations require an appraisal in every case to make a fair market value determination. Appraisals can be costly and time consuming and in some circumstances are not necessary to determine fair market value.

This rule replaces existing § 14.26 with a new § 14.8. Paragraph (a) establishes the requirement that, subject to the exemptions in paragraph (e), all permittees must pay a use and occupancy fee to the NPS. Paragraph (b) states that the use and occupancy fee will be the fair market value of the use and occupancy of federally owned lands and waters under the ROW permit, as determined by the NPS. Subparagraph (b)(1) allows the NPS to adopt any DOI-approved method to determine the use and occupancy fee. This approach is consistent with a current rulemaking action by the FWS. 1 It will reduce the time and cost necessary to determine the fair market value of many ROWs in System units and therefore make the application process faster and less expensive for applicants. Paragraph (b)(2) states that costs for administration of the ROW program will be collected by the NPS in accordance with OMB Circular A-25, Memorandum for Heads of Executive Departments and Establishments: User Charges at the current indirect cost rate. These funds will be retained as cost recovery under 54 U.S.C. 103104 from the use and occupancy fees collected on ROW permits. Use and occupancy fees not retained for cost recovery will be returned to the Treasury. Paragraph (b)(3) gives the NPS discretion to consider exempt and non-exempt uses and users in determining the use and occupancy fee. When there is a mix of potentially exempt and non-exempt uses or users served by infrastructure, the potentially exempt uses or users may be eligible for a use and occupancy fee exemption on sufficiently discrete identifiable portions of the infrastructure that exclusively serve the exempt uses or users.

Market conditions that affect the value of the use and occupancy of Federal lands and waters in System units can, and often do, change during the term of a ROW permit. Paragraph (c) allows the NPS to re-evaluate the use and occupancy fee at any time during the term of the ROW permit, but at a minimum every 10 years, so that the American taxpayer receives fair market value for the use and occupancy of the Federal lands and waters subject to the ROW. Paragraph (d) states that the use and occupancy fee will be re-evaluated during permit renewal and when a subsequent ROW permit is issued for infrastructure that was authorized under an expired ROW permit that was not renewed in a timely manner.

Paragraph (e) updates the exemptions from paying a use and occupancy fee. Exemptions are discretionary, and infrastructure must be used exclusively for one or more of the qualifying criteria. This rule largely maintains the exemptions in existing paragraph (c) of § 14.26, but clarifies circumstances where exemptions may be available. This rule removes the exemption for irrigation projects because it is not a common use within System units. Similarly, this rule replaces exemptions for non-profit and Rural Electrification Administration projects with a discretionary exemption for projects that clearly support the public interest and the mission and values of the System unit.

Existing regulations at § 14.6 allow permittees to use materials removed during construction elsewhere along the same ROW in the construction of the same project. Existing regulations in § 14.9 require ROW permittees to agree to specific terms and conditions that prescriptively address mitigation for various types of impacts to System unit resources during construction and maintenance operations. Paragraph (b) addresses the disposition of vegetative and other material cut, uprooted, or otherwise accumulated during construction and maintenance. Paragraph (c) addresses soil and resource conservation and protection measures, such as weed control. Paragraph (e) addresses roads, fences, and trails that are destroyed or injured from construction work. Paragraph (g) addresses reimbursement for merchantable timber that is cut, removed, or destroyed in the construction and maintenance of the project.

Because potential mitigation actions will vary among System units, and even within a System unit, based on the nature and scope of each permitted activity, this rule replaces the special allowance in § 14.6 and the prescriptive requirements referenced above for a new § 14.9 that makes general statements about disposition, mitigation, and compensation resulting from resource damage. This section states that the NPS may direct the use and disposition of all disturbed resources and may require a permittee to mitigate or compensate for impacts to resources and lost uses from permitted activities. Although not stated in this rule, compensation collected by the NPS may be retained under 54 U.S.C. 100724(a) and used for mitigation actions taken by the NPS on behalf of the permittee.

Existing § 14.9 contains a list of terms and conditions that every permittee must agree to comply with in a ROW permit, except for those that are waived by the Secretary in a particular case. Some of the terms and conditions in this list are outdated or unnecessarily specific and are therefore no longer necessary. For example, an existing term and condition in paragraph (d) directs permittees to prevent and suppress fires. This is no longer consistent with NPS practice and policy regarding fire prevention and suppression.

This rule replaces existing § 14.9 with new § 14.10. Paragraph (a) of § 14.10 states that the ROW permit will authorize specific operation and maintenance activities and that any such activities not specifically authorized in the ROW permit will require an additional written authorization or amended ROW permit. This is necessary to allow the NPS to evaluate potential new impacts to System unit resources, values, and visitors, including impacts to public health and safety and the visitor experience. This statement is consistent with § 14.31 of the existing regulations, which requires written approval for deviations. This rule replaces existing § 14.31 with paragraph (a) of new § 14.10 and with new § 14.14 (Right-of-way permit amendment) discussed below.

Paragraph (b) of this section states that the NPS will issue a ROW permit for a term that is consistent with applicable law and policy and may be up to 50 years when determined appropriate by the NPS. Paragraph (c) requires permittees to agree to a smaller set of minimum terms and conditions in every approved ROW permit. Some of these terms and conditions are similar to those in existing § 14.9, but more clearly reflect current NPS general practices and policies. Because the NPS evaluates each request for a ROW permit on a case-by-case basis, this rule allows the NPS to require additional terms and conditions, or makes modifications to the terms and conditions in the regulation, that could be used to address resource, management, or public health and safety concerns that are specific to the particular project and System unit.

Existing § 14.29 requires permittees to complete construction of infrastructure under a ROW permit in no more than five years or ten years for good cause. This rule removes these requirements because they are no longer meaningful to current NPS practice regarding the construction of infrastructure operated and maintained under a ROW permit. As noted in previous sections, a ROW permit authorizes the use of Federal lands and waters and the operation and maintenance of specific infrastructure within a System unit. Construction activities have a shorter duration and have potential impacts to System unit resources, values, public health and safety, and visitor experience that are different than those posed by operation and maintenance. Construction activities can include activities associated with the addition, adjustment, exchange, or removal of infrastructure. Construction of infrastructure is an integral step in and can occur at different stages after a ROW permit is issued. For these reasons, the NPS authorizes the construction of infrastructure under a separate special use permit.

This rule creates a new § 14.11 that addresses the application process for obtaining a special use permit for construction. Paragraphs (a) (c) requires a separate special use permit before a ROW permittee initiates construction activities, requires the special use permit applicant to use the current special use permit application form, and requires the special use permit applicant to submit a complete application to the NPS before the NPS will process the application. Paragraph (d) states that the NPS will only issue a special use permit for construction either simultaneously with the execution of a ROW permit, or after a ROW permit has been executed. This will ensure that the NPS permits construction activities only when the use of the lands or waters is authorized and for infrastructure that has been separately approved for operation and maintenance. Paragraph (e) identifies information that must be submitted on an application for a special use permit for construction, including construction drawings, an equipment list, a construction schedule, maps, and a restoration plan (as applicable). During the pre-application meeting and the initial processing of the permit, the NPS may request additional information from the applicant related to construction activities. The NPS cost recovery authority 54 U.S.C. 103104 applies to special use permits for construction and the NPS will recover costs consistent with NPS policy.

The NPS has issued special use permits for construction of infrastructure that is part of a larger project occurring outside of the System unit, and then the permittee has been unable to secure the remaining permits and rights to complete the larger project. This has resulted in unnecessary impacts to System unit resources. To help avoid these outcomes, paragraph (f) allows the NPS to require an applicant for a special use permit for construction to provide an affidavit stating that all other required land rights, water rights, permits, certifications, approvals, and authorizations necessary for a viable project have been secured.

Section 14.12 of this rule establishes procedures that permittees must follow prior to the expiration of an existing ROW permit to obtain a new ROW permit in time for associated infrastructure to remain where it is in the System unit. Paragraph (a) explains that, in practice, a ROW permit renewal is actually the issuance of a new, separate ROW permit that is approved before the expiration of an existing ROW permit for the use of lands and waters, and the operation and maintenance of the same infrastructure, and that the new ROW permit may contain new terms and conditions, as applicable. These new terms and conditions could change the use and occupancy fee and requirements for financial assurance and liability insurance. Paragraphs (b)(1) and (b)(2) encourage permittees to submit complete applications for new ROW permits, following the procedures in § 14.4, at least six months prior to the expiration of an existing ROW permit in order to complete a timely renewal. Paragraph (b)(3) states that the term of a ROW permit may only be re-established for a new and continuous term through timely renewal. Paragraph (b)(4) states that the decision to renew a ROW permit is at the discretion of the NPS. Paragraph (c) clarifies that if a ROW permit expires prior to the issuance of a renewal, the infrastructure that had been authorized under the ROW permit will, upon expiration, be considered in trespass under § 14.15.

ROW permit transfers are necessary if a current permittee intends to convey ownership or control of and responsibility for associated infrastructure to a new entity. This rule replaces existing § 14.36 with a new § 14.13 that reflects current procedures used by the NPS for the transfer of a ROW permit. The new section is substantively similar to existing § 14.36. Paragraph (a) explains when ROW permit transfers are necessary. Paragraphs (b)(1) and (b)(2) require the existing permittee to submit a written transfer request and the new permittee to submit a notice of acceptance and agreement to comply with the terms and conditions of the ROW permit, plus information that must be submitted by the existing and new permittees. Paragraph (c) clarifies that the existing permittee will remain responsible for compliance with the terms and conditions of the ROW permit, including all financial obligations, unless and until a transfer is approved in writing by the NPS. This rule removes existing § 14.37, which requires a nonrefundable payment of $25 for all filings for permit transfers as a form of cost recovery. The NPS no longer charges this fee, which would not come close to offsetting the administrative costs of transferring a permit, and instead charges a cost recovery fee commensurate with actual administrative costs under 54 U.S.C. 103104.

This rule establishes procedures for amending an existing ROW permit in a new § 14.14. Paragraph (a) allows a permittee to request or the NPS to initiate an amendment to a ROW permit. This paragraph also states that if the NPS initiates an amendment, it will provide notice to the permittee. Paragraph (b) states that an amendment could address infrastructure, location, access, operation and maintenance activities, the use and occupancy fee, a new permittee as a result of an approved transfer, or other terms and conditions. Paragraphs (b)(1) and (b)(2) state that amendments to authorized uses, including infrastructure, or to authorized locations will require the permittee to submit some or all of the materials that are required for new applications under § 14.4, and if the amendments are significant, the submission of a completely new application under § 14.4. An example of a significant amendment would be a request to add new infrastructure outside of the approved permitted area. These provisions are consistent with existing § 14.31, which requires an amended application for substantial deviations, and would be replaced by these new paragraphs of § 14.14 and by new paragraph (a) of new § 14.9 (Terms and conditions) discussed above.

As explained above, § 14.12 of this rule states that the full term of a ROW permit can only be reset if the permit is renewed in a timely manner. The NPS recognizes, however, that there may be barriers that arise that prevent timely renewal. For this reason, paragraph (c) of § 14.14 allows the NPS to extend the term of an existing ROW permit by amendment, for up to one year, if there is a reasonable delay or ongoing good faith negotiations regarding the renewal of an expiring ROW permit. Paragraph (d) requires the permittee to submit amendment requests in writing with information necessary for the NPS to evaluate the request. In paragraph (d)(7), this rule allows the NPS to require additional informational necessary to properly evaluate a requested amendment. Paragraph (e) states that decisions to approve amendments are at the discretion of the NPS, and that any approved amendment is deemed part of the original ROW permit.

Section 14.30 of the existing regulations allows the NPS to cancel ROW permits for failure to construct within the period allowed and for abandonment or nonuse. Section 14.33 of the existing regulations allows the NPS to cancel ROW permits for any violation of the regulations or permit terms and conditions. This rule replaces these provisions with a new § 14.15 that addresses termination of a ROW permit by either the NPS or the permittee, suspension of a ROW permit by the NPS, and for the first time in regulations creates an opportunity for permittees to cure the cause of the suspension or termination. Paragraph (a) states that at any time upon written notice provided to the permittee, the NPS may suspend or terminate all or any part of the permit without liability or expense to the United States. If the NPS intends to suspend or terminate all or part of a ROW permit, paragraph (b) allows the NPS to provide the permittee with an opportunity to cure the cause of the suspension or termination prior to it taking effect. Paragraph (c) lists the most common specific reasons for suspension and termination of a ROW permit, and also states that the NPS may suspend or terminate a ROW permit at its discretion. If a permittee seeks to terminate a ROW permit, paragraph (d) requires the permittee to provide written notice to the NPS and identify the desired date of termination. Paragraph (e) states that, upon suspension, the permittee remains responsible for fulfilling all obligations under the permit, including payment of any use and occupancy fees and cost recovery due. Paragraph (f) states that, upon termination, the permittee remains responsible for fulfilling all permit obligations, including required payments, restoration and reclamation activities. The ongoing duties and responsibilities are meant to protect the American taxpayer from incurring the permittee's liabilities and financial responsibilities.

Section 14.8 of the existing regulations states that occupancy and use of Federal lands without authority will result in prosecution and liability for trespass. This rule replaces this section with more comprehensive regulations about trespass in a new § 14.16. Paragraph (a) expressly prohibits any uses, activities, or infrastructure not specifically authorized under a valid ROW permit or other legal authorization and states that such uses are considered a trespass against the United States. Paragraph (b) allows the NPS to require an entity in trespass to immediately remove the infrastructure and cease the uses or associated activities, and to pursue additional legal remedies, penalties, and fees. Paragraph (c) allows the NPS to continue to enforce the terms and conditions of an expired ROW permit, including the collection of cost recovery and use and occupancy fees. Paragraph (d) allows the NPS to require an entity to apply for a permit that authorizes maintenance activities on infrastructure in trespass. This permit would not cure the trespass and be considered only to maintain the safety of the infrastructure, and to protect public health and safety, visitor experience, or the resources and values of the System unit.

This rule adds a new provision in § 14.17 and makes a corresponding revision to § 1.3 so that a violation of any regulation in part 14 or any term and conditions of a ROW permit may result in criminal penalties provided under 18 U.S.C. 1865, including fine, imprisonment, or both.

Existing § 14.38 gives permittees at least six months to remove property and improvements from the ROW before they become the property of the United States. This provision is replaced by subparagraph (c)(7) of § 14.10 of this rule, which requires as a standard term and condition of each ROW permit that the permittee remove all infrastructure from the permitted area within at least six months of the expiration or termination of the ROW permit.

New § 14.18 of this rule establishes procedures and requirements for site restoration and reclamation in addition to those included in the terms and conditions of a ROW permit. Paragraph (a) requires the permittee, after the expiration or termination of the ROW permit, to restore or reclaim the permitted area to NPS standards directed and approved by the NPS. If the required reclamation and restoration activities are not addressed in the approved ROW permit, the NPS may require the permittee to apply for and obtain a separate special use permit authorizing those activities, with appropriate terms and conditions. The special use permit will establish a reasonable schedule for completion of all reclamation and restoration activities under the permit. If those activities are not completed within a reasonable period of time, or according to the schedule established in the special use permit, paragraph (b) makes the permittee liable to the NPS for all costs associated with reclamation or restoration of the permitted area undertaken by the NPS, or its contractor, to the satisfaction of the NPS. Paragraph (b) also states that the permittee's liability for such costs survives the expiration or termination of the ROW permit.

The NPS intends the regulations in this rule to be severable. If any portion of this final rule were to be stayed or invalidated by a reviewing court, the remaining elements would continue to provide the NPS with important and independently effective tools relating to the administration of its ROW program. Hence, if a court prevents any provision of this rule from taking effect, that should not affect the other parts of the rule. The remaining provisions would remain in force because they could still operate sensibly.

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

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

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) generally requires that Federal agencies prepare a regulatory flexibility analysis for rules subject to the notice-and-comment rulemaking requirements under the Administrative Procedure Act (5 U.S.C. 500 et seq. ), if the rule would have a significant economic impact, whether detrimental or beneficial, on a substantial number of small entities. See 5 U.S.C. 601-612. Congress enacted the RFA to ensure that government regulations do not unnecessarily or disproportionately burden small entities. Small entities include small businesses, small governmental jurisdictions, and small not-for-profit enterprises.

This rule will benefit small businesses by streamlining NPS regulations for permitting ROWs and thereby reducing the amount of time that NPS requires to issue many ROW permits. This rule suggests optional pre-application meetings to provide small businesses with information early in the process about the NPS's estimated time and cost to evaluate and process a ROW permit application, increasing regulatory certainty. The NPS reviewed the Small Business Size standards for the affected industries and determined that a large share of the entities in the affected industries are small businesses as defined by the Small Business Act. The NPS believes, however, that the impact on the small entities is not significant because this rule will impact a small number of small entities, and those effects would not be economically significant. In summary, the NPS has considered whether this rule will result in a significant economic impact on a substantial number of small entities. The NPS certifies that this rule will not have a significant economic impact on a substantial number of small business entities. Therefore, a regulatory flexibility analysis is not required.

This rule is not a major rule under 5 U.S.C. 804(2). 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 will not impose an unfunded mandate on Tribal, State, or local governments or the private sector of more than $100 million per year. This 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 park lands 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 will 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, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. This rule only affects the use of federally-administered lands and waters. It has no outside effects on other areas. This rule affects the NPS's administration of the ROW Program and has no substantial, direct effects on the States, on the relationships between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. 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 NPS has evaluated this rule under the criteria in Executive Order 13175 and under the DOI's Tribal consultation policy and has determined that tribal consultation is not required because this rule will not have a substantial direct effect on federally recognized Indian Tribes. This rule has no impact on Tribal lands, as it applies only to ROW permits issued by the NPS for the use and occupancy of lands and waters, and interests in lands and waters, administered by the NPS within System units. Indian tribes have jurisdiction over their own lands, subject to the Secretary's trust responsibility. There will be opportunities for consultation with Tribes on individual ROW permitting decisions. Paragraph (a)(1) of § 14.5 of this rule states that the NPS will issue a ROW permit only if the proposed operation and maintenance of infrastructure are consistent with applicable laws and policies, including statutes governing administration of the National Park System, regulations, and NPS planning documents. This evaluation will include consideration of whether issuing the ROW permit would cause a significant impact to one or more Tribes and, if so, the NPS will consult with potentially affected Tribes prior to issuing the permit under Executive Order 13175.

This rule does not contain any new collections of information that require approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). OMB has previously approved the information collection requirements associated with the NPS's use of Common Form SF-299 and assigned OMB Control Number 0596-0249 (expires 1/31/2027); and the currently approved NPS form 10-930, assigned OMB Control Number 1024-0026 (expires 7/31/27). You may view the information collection request(s) at https://www.reginfo.gov/public/do/PRAMain. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

This rule does not constitute a major federal action significantly affecting the quality of the human environment. A detailed statement under NEPA is not required because this rule is covered by a categorical exclusion. This rule is covered by the categorical exclusion in Section 3.2.H of the NPS NEPA Handbook (2015), which allows for the following to be categorically excluded: “policies, directives, regulations, and guidelines that are of an administrative, financial, legal, technical, or procedural nature, or whose environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis and will later be subject to the NEPA process, either collectively or case-by-case.” The NPS has determined that this rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.

Alternatively, NPS NEPA Handbook Section 3.3.A.8 allows for the following to be categorically excluded: “Modifications or revisions to existing regulations or the promulgation of new regulations for NPS-administered areas, provided the modifications, revisions, or new regulations do not:

a. Increase public use to the extent of compromising the nature and character of the area or causing physical damage to it,

b. Introduce noncompatible uses that might compromise the nature and characteristics of the area or cause physical damage to it,

c. Conflict with adjacent ownerships or land uses, or

d. Cause a nuisance to adjacent owners or occupants.”

Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare statements of energy effects when undertaking certain actions. This rule will not significantly affect energy supplies, distribution, or use. Moreover, this rule is not a significant regulatory action as determined by OIRA, and the OIRA administrator has not designated this rule as a significant energy action. Therefore, this action is not a significant energy action, and no statement of energy effects is required.

In consideration of the foregoing, the National Park Service amends 36 CFR parts 1 and 14, as set forth below:

Throughout this document, wherever “we” or “our” is used, it means the EPA.

On June 24, 2024, the EPA proposed to approve revisions to the Idaho SIP to update the adoption by reference of specific Federal standards and reference methods and streamline the Idaho air quality regulations by repealing outdated provisions, striking duplicative terms, and simplifying rule language (89 FR 52415). The reasons for our proposed action are included in the proposal and will not be restated here. The public comment period closed on July 24, 2024. We received two comments from members of the public. The full text of the comments may be found in the docket for this action. We have summarized the comments in the following section II. of this preamble.

The first commenter conveyed overall support for our proposed action. The EPA acknowledges the commenter's support.

The second commenter expressed concern about air emissions from cannabis plants and stated there is a need to study volatile organic compound emissions from the plants and how such emissions may contribute to ozone formation. This comment is outside the scope of this action. The revisions to Idaho's SIP do not relate to cannabis production in general or VOC emissions from cannabis production in particular. Rather, the revisions to Idaho's SIP update the adoption by reference of specific Federal standards and reference methods and streamline the Idaho air quality regulations by repealing outdated provisions, striking duplicative terms, and simplifying rule language. In addition, the commenter did not indicate that EPA approval of the SIP submissions is inconsistent with the Clean Air Act.

Therefore, for the reasons stated in this preamble and our proposed action on June 24, 2024, we are finalizing our action as proposed (89 FR 52415).

The EPA is approving, and incorporating by reference into 40 CFR 52.670(c), the air quality regulatory revisions submitted by Idaho on May 8, 2023 and May 13, 2024, as detailed in this section.

Upon the effective date of this final action, the Idaho SIP will incorporate the following sections of the Idaho Rules for the Control of Air Pollution (IDAPA 58.01.01), State effective March 28, 2023, unless otherwise specified:

• IDAPA 58.01.01.001 Title and scope (describing the title and general scope);

• IDAPA 58.01.01.005 Definitions (referencing the terms defined in State statute and Federal regulations to be used in the Idaho air quality regulations);

• IDAPA 58.01.01.006 General definitions (defining centralized terms used in the Idaho air quality regulations), except 006.23, 006.24, 006.25, 006.30, 006.31.b, 006.49, 006.50, 006.51;

• IDAPA 58.01.01.007 Definitions for the purposes of sections 200 through 228 and 400 through 461 (defining centralized terms used in the major and minor source permitting programs);

• IDAPA 58.01.01.107 Incorporations by reference (listing the codes, rules and standards incorporated by reference into the Idaho air quality regulations), except 107.06 through 107.16, State effective July 1, 2024;

• IDAPA 58.01.01.108 Obligation to comply (requiring that receiving a permit or certificate of registration does not relieve the owner or operation of the obligation to comply with all applicable regulations);

• IDAPA 58.01.01.121 Compliance requirements by department (detailing actions to ensure compliance with the air quality rules);

• IDAPA 58.01.01.122 Information orders by the department (establishing how information may be obtained in implementing the air quality rules);

• IDAPA 58.01.01.123 Certification of documents (requiring documents submitted to be certified as true, accurate and complete);

• IDAPA 58.01.01.125 False statements (prohibiting false statements, representation, or certification);

• IDAPA 58.01.01.126 Tampering (prohibiting interference with monitoring device, method, rule or order);

• IDAPA 58.01.01.130 Startup, shutdown, scheduled maintenance, safety measures, upset and breakdown (defining startup, shutdown, upset and scheduled maintenance), State effective July 1, 2024;

• IDAPA 58.01.01.131 Excess emissions (establishing enforcement discretion criteria in the event of excess emissions);

• IDAPA 58.01.01.132 Correction of condition (requiring appropriate action to correct conditions causing an excess emissions event);

• IDAPA 58.01.01.133 Startup, shutdown and scheduled maintenance requirements (prescribing notifications, recordkeeping, reporting and other actions related to modes of operation);

• IDAPA 58.01.01.134 Upset, breakdown and safety requirements (identifying safety requirements and measures to minimize excess emissions during upsets);

• IDAPA 58.01.01.135 Excess emissions reports (detailing required data to be reported about excess emissions events);

• IDAPA 58.01.01.136 Excess emissions records (requiring records retention related to excess emissions);

• IDAPA 58.01.01.155 Circumvention (prohibiting the concealment of emissions);

• IDAPA 58.01.01.157 Test methods and procedures (establishing procedures for source test methods);

• IDAPA 58.01.01.164 Polychlorinated biphenyls (PCBs) (prohibiting the burning or selling of PCBs);

• IDAPA 58.01.01.175 Procedures and requirements for permits establishing a facility emissions cap (setting uniform procedures for a source to seek a facility emissions cap);

• IDAPA 58.01.01.176 Facility emissions cap, except provisions relating to hazardous air pollutants (establishing applicability and definitions for facility emissions cap requirements);

• IDAPA 58.01.01.178 Standard contents of permits establishing a facility emissions cap (listing the required contents of a permit establishing a facility emissions cap);

• IDAPA 58.01.01.179 Procedures for issuing permits establishing a facility emissions cap (identifying the procedures to be followed in issuing a facility emissions cap);

• IDAPA 58.01.01.180 Revisions to permits establishing a facility emissions cap (requiring changes to permit terms and conditions under certain circumstances);

• IDAPA 58.01.01.181 Notice and record-keeping of estimates of ambient concentrations (prescribing the process to make allowable changes to a facility emissions cap);

• IDAPA 58.01.01.200 Procedures and requirements for permits to construct (establishing uniform procedures for issuing permits to construct);

• IDAPA 58.01.01.201 Permit to construct required (requiring owners and operators of certain facilities to obtain permits to construct unless otherwise covered by a general permit or permit by rule);

• IDAPA 58.01.01.202 Application procedures (requiring a certified application using approved forms when applying for a permit to construct);

• IDAPA 58.01.01.203 Permit requirements for new and modified stationary sources, except 203.03 (stating that no permit will be issued unless a source complies with applicable emission limits and does not cause or contribute to a violation of an ambient air quality standard);

• IDAPA 58.01.01.204 Permit requirements for new major facilities or major modifications in nonattainment areas (requiring LAER and offsets for new major facilities and major modifications in nonattainment areas);

• IDAPA 58.01.01.205 Permit requirements for new major facilities or major modifications in attainment or unclassifiable areas (requiring new major facilities and major modifications meet certain requirements to construct in attainment areas);

• IDAPA 58.01.01.206 Optional offsets for permits to construct (offering the option to offset emissions using credits);

• IDAPA 58.01.01.208 Demonstration of net air quality benefit (establishing how to demonstrate net air quality benefit for emissions trades);

• IDAPA 58.01.01.209 Procedure for issuing permits (laying out application, public process and approval procedures for issuing permits);

• IDAPA 58.01.01.211 Conditions for permits to construct (conditioning permits to include monitoring, performance testing, cancellation);

• IDAPA 58.01.01.212 Relaxation of standards or restrictions (spelling out major preconstruction permitting requirements when a limit has been relaxed);

• IDAPA 58.01.01.213 Pre-permit construction (specifying when certain minor sources may request to construct before obtaining the permit);

• IDAPA 58.01.01.220 General exemption criteria for permit to construct exemptions (detailing exemptions from the requirements to obtain a permit to construct);

• IDAPA 58.01.01.221 Category I exemption (specifying exemptions for sources below regulatory concern);

• IDAPA 58.01.01.222 Category II exemption (detailing exemptions for sources such as laboratory equipment, pilot plants, mobile engines, retail gasoline facilities, etc.);

• IDAPA 58.01.01.226 Payment of fees for permits to construct (requiring application and processing fee payment for permits to construct);

• IDAPA 58.01.01.227 Receipt and usage of fees (requiring received fees to be used to administer the permit to construct and Tier II operating permit programs)

• IDAPA 58.01.01.400 Procedures and requirements for Tier II operating permits (stating the purpose of the Tier II operating permit rules);

• IDAPA 58.01.01.401 Tier II operating permit, except 401.01.a and 401.04 (laying out optional and required Tier II operating permits);

• IDAPA 58.01.01.402 Application procedures (laying out how to apply for a Tier II operating permit);

• IDAPA 58.01.01.403 Permit requirements for Tier II sources (requiring that no permit be issued unless it would include all applicable emission limits and ambient air quality standards);

• IDAPA 58.01.01.404 Procedure for issuing permits (general procedures for issuing Tier II permits);

• IDAPA 58.01.01.405 Conditions for Tier II operating permits (laying out permit terms, performance test requirements, and other conditions);

• IDAPA 58.01.01.460 Requirements for emission reduction credit (establishing the conditions that constitute a creditable emission reduction);

• IDAPA 58.01.01.461 Requirements for banking emission reduction credits (ERC's) (setting out how emission reduction credits may be banked);

• IDAPA 58.01.01.500 Registration procedures and requirements for portable equipment (requiring all portable equipment to be registered);

• IDAPA 58.01.01.510 Stack heights and dispersion techniques (establishing criteria for good engineering practice related to stack heights and dispersion techniques);

• IDAPA 58.01.01.511 Requirements (providing that the required degree of emission control must not be affected by the amount of stack height that exceeds good engineering practices);

• IDAPA 58.01.01.512 Opportunity for public hearing (providing an opportunity for a public hearing where a stack height would exceed good engineering practices);

• IDAPA 58.01.01.513 Approval of field studies and fluid models (requiring approval of field studies and fluid models by the EPA);

• IDAPA 58.01.01.514 No restriction on actual stack height (providing that these rules do not restrict actual stack height);

• IDAPA 58.01.01.550 Air quality episodes (defining requirements in the event of episodes of poor air quality);

• IDAPA 58.01.01.556 Criteria for declaring air quality episodes (identifying alert, warning and emergency episode stages);

• IDAPA 58.01.01.557 Requirements during air quality episodes (prescribing actions to be taken during air quality episode stages);

• IDAPA 58.01.01.558 Notification of air quality episode (defining what information will be provided to the public in the event of an air quality episode);

• IDAPA 58.01.01.562 Specific air quality episode abatement plans for stationary sources (requiring specific sources to adopt and implement their own abatement plans in the event of an air quality episode);

• IDAPA 58.01.01.579 Baselines for prevention of significant deterioration (establishing the baseline dates to be used in the PSD permitting program);

• IDAPA 58.01.01.580 Classification of prevention of significant deterioration areas (listing procedures for redesignating PSD areas);

• IDAPA 58.01.01.581 Prevention of significant deterioration (PSD) increments (establishing the allowable degree of deterioration for areas that have air quality better than the ambient standards);

• IDAPA 58.01.01.600 Rules for control of open burning (establishing rule to protect human health and the environment from air pollutants resulting from open burning);

• IDAPA 58.01.01.601 Fire permits, hazardous materials, and liability (stating that a person is not exempt from other laws and ordinances related to open burning);

• IDAPA 58.01.01.602 Nonpreemption of other jurisdiction (stating that these rules are not intended to interfere with the rights of other agencies to provide equal or more stringent open burning controls);

• IDAPA 58.01.01.603 General requirements (prescribing the general open burning restrictions);

• IDAPA 58.01.01.606 Categories of allowable burning (listing the categories of allowable open burning);

• IDAPA 58.01.01.607 Recreational and warming fires (describing the campfires, barbeques, ceremonial fires and small handwarming fires that are allowed);

• IDAPA 58.01.01.608 Weed control fires (describing the weed abatement fires that are allowed);

• IDAPA 58.01.01.609 Training fires (describing the fire and land management training fires that are allowed);

• IDAPA 58.01.01.611 Residential yard waste fires (describing the yard waste disposal fires that are allowed);

• IDAPA 58.01.01.612 Solid waste facility fires (describing when solid waste disposal fires may be allowed);

• IDAPA 58.01.01.613 Orchard fires (describing orchard clipping disposal fires that are allowed);

• IDAPA 58.01.01.614 Prescribed fires (describing the prescribed fire that may be allowed under certain conditions);

• IDAPA 58.01.01.615 Dangerous material fires (describing allowable fires ignited under the direction of a public or military fire chief to dispose of dangerous materials);

• IDAPA 58.01.01.616 Infectious waste burning (describing allowable infectious waste fires conducted under the direction of a public health officer);

• IDAPA 58.01.01.617 Crop residue disposal (establishing requirements for crop residue disposal fires);

• IDAPA 58.01.01.618 Permit by rule (requiring that no person may conduct an open burn of crop residue without the applicable permit by rule);

• IDAPA 58.01.01.619 Registration (establishing registration requirements for crop residue burn permit by rule);

• IDAPA 58.01.01.620 Burn fee (setting fee payment deadline for crop residue burns);

• IDAPA 58.01.01.621 Burn approval (establishing the criteria for crop residue burn approval);

• IDAPA 58.01.01.622 General provisions (listing the requirements for persons conducting crop residue burns);

• IDAPA 58.01.01.623 Public notification (indicating that the Idaho DEQ will notify the public of burn or no-burn days);

• IDAPA 58.01.01.624 Spot and baled crop residue burn and propane flaming requirements (detailing the requirements for spot burns, baled burns and propane flaming);

• IDAPA 58.01.01.625 Visible emissions (establishing opacity limits and test methods);

• IDAPA 58.01.01.650 Rules for control of fugitive dust (requiring that all reasonable precautions be taken to prevent fugitive dust);

• IDAPA 58.01.01.651 General rules (establishing general requirements to limit the generation of fugitive dust);

• IDAPA 58.01.01.665 Regional haze rules (addressing visibility impairment in mandatory Class I Federal areas);

• IDAPA 58.01.01.666 Reasonable Progress goals (establishing goals for reasonable progress toward natural visibility conditions);

• IDAPA 58.01.01.667 Long-term strategy for regional haze (establishing long-term strategy requirements);

• IDAPA 58.01.01.675 Fuel burning equipment—particulate matter (establishing particulate matter standards for fuel burning equipment);

• IDAPA 58.01.01.676 Standards for new sources (setting particulate limits for new fuel burning equipment);

• IDAPA 58.01.01.677 Standards for minor and existing sources (setting particulate limits for minor and existing fuel burning equipment);

• IDAPA 58.01.01.678 Combinations of fuels (addressing particulate limits when two or more types of fuel are burned concurrently);

• IDAPA 58.01.01.679 Averaging period (establishing the appropriate averaging period for determining particulate emissions from fuel burning equipment);

• IDAPA 58.01.01.680 Altitude correction (addressing how to correct standard conditions for the altitude of a source);

• IDAPA 58.01.01.681 Test methods and procedures (setting the appropriate test method for measuring fuel burning particulate emissions);

• IDAPA 58.01.01.700 Particulate matter—process weight limitations (establishing particulate matter emission limitations for process equipment);

• IDAPA 58.01.01.701 Particulate matter—new equipment process weight limitations (listing emission standards for new process equipment);

• IDAPA 58.01.01.702 Particulate matter—existing equipment process weight limitations (listing emission standards for existing process equipment);

• IDAPA 58.01.01.703 Particulate matter—other processes (establishing process weight limitations for equipment used to dehydrate sugar beet pulp or alfalfa);

• IDAPA 58.01.01.725 Rules for sulfur content of fuels (establishing limits on the sulfur content of fuels);

• IDAPA 58.01.01.791 General control requirements (prohibiting owners and operators of rock crushers from injuring human health, welfare, property and other requirements);

• IDAPA 58.01.01.793 Emissions standards for nonmetallic mineral processing plants not subject to 40 CFR part 60, subpart OOO (requiring compliance with emissions and opacity standards);

• IDAPA 58.01.01.794 Permit requirements, except 794.04 (setting rock crusher permit by rule eligibility);

• IDAPA 58.01.01.795 Permit by rule requirements (establishing rock crusher permit by rule requirements);

• IDAPA 58.01.01.796 Applicability (establishing permit by rule and permit applicability);

• IDAPA 58.01.01.797 Registration for permit by rule (identifying how to register for the rock crusher permit by rule);

• IDAPA 58.01.01.798 Electrical generators (listing the fuel and operation requirements for electrical generators used to provide power to rock crushers);

• IDAPA 58.01.01.799 Nonmetallic mineral processing plant fugitive dust best management practice (establishing best practices to limit fugitive dust);

• IDAPA 58.01.01.815 Rules for control of kraft pulp mills (establishing emission standards and reporting requirements for recovery furnaces at kraft pulp mills); and

• IDAPA 58.01.01.818 Kraft pulp mill LVHC and HVLC gas venting notification and reporting (requiring excess emissions notification and reporting by subject sources).

Upon the effective date of this action, the Idaho SIP at 40 CFR 52.670(c) will include the following provisions of Idaho statute, State effective July 1, 2010:

• Idaho Code 39.103 Definitions, except (4), (5), (8), (9), (10), (12), (13), (14), (15), (16), (17), and (18).

The EPA is also approving Idaho's request to remove from incorporation by reference in 40 CFR 52.670(c) the following regulations:

• IDAPA 58.01.01.004 Catchlines (stating that catchlines are not to be used to interpret regulations), State effective May 1, 1994;

• IDAPA 58.01.01.011 Definitions for the purposes of sections 790 through 799, State effective March 15, 2002;

• IDAPA 58.01.01.106 Abbreviations (spelling out the abbreviations used in the Idaho air quality regulations), State effective May 1, 1994;

• IDAPA 58.01.01.124 Truth, accuracy and completeness of documents (requiring documents submitted to the state to be true, accurate and complete), State effective May 1, 1994;

• IDAPA 58.01.01.127 Format of responses (requiring documents to be submitted to meet state-specified formatting requirements), State effective May 1, 1994;

• IDAPA 58.01.01.160 Provisions governing specific activities and conditions (regarding toxic air pollutants and polychlorinated biphenyls), State effective April 5, 2000;

• IDAPA 58.01.01.162 Modifying physical conditions (addressing conditions that affect the dispersion of pollutants), State effective May 1, 1994;

• IDAPA 58.01.01.163 Source density (addressing situations where a number of sources are located in proximity to each other), State effective May 1, 1994;

• IDAPA 58.01.01.212 Obligation to comply (requiring compliance with all applicable local, state and Federal statutes, rules, and regulations), State effective May 1, 1994;

• IDAPA 58.01.01.406 Obligation to comply (requiring compliance with all applicable local, state and Federal statutes, rules, and regulations), State effective May 1, 1994;

• IDAPA 58.01.01.515 Approval of field studies and fluid models (requiring EPA approval of field studies and fluid models), State effective May 1, 1994;

• IDAPA 58.01.01.516 No restrictions on actual stack height (addressing actual stack height), State effective May 1, 1994;

• IDAPA 58.01.01.551 Episode criteria (listing air quality episode criteria), State effective May 1, 1994;

• IDAPA 58.01.01.552 Stages (defining air quality episode stages), State effective March 15, 2002;

• IDAPA 58.01.01.553 Effects of stages (addressing the effects of reaching episode stages), State effective March 15, 2002;

• IDAPA 58.01.01.559 Manner and frequency of notification (addressing the manner and frequency of episode announcements), State effective May 1, 1994;

• IDAPA 58.01.01.560 Notification to sources (requiring significant sources be notified), State effective April 11, 2006;

• IDAPA 58.01.01.561 General rules (establishing the general control requirements for each episode stage), State effective April 11, 2006;

• IDAPA 58.01.01.575 Air quality standards and area classification (establishing state ambient air quality standards), State effective April 11, 2006;

• IDAPA 58.01.01.576 General provisions for ambient air quality standards (addressing general standards), State effective May 1, 1994;

• IDAPA 58.01.01.578 Designation of attainment, unclassifiable, and nonattainment areas (listing steps for state designation of areas), State effective May 1, 1994;

• IDAPA 58.01.01.610 Industrial flares (addressing industrial flares as open burning), State effective March 21, 2003;

• IDAPA 58.01.01.626 General restrictions on visible emissions from wigwam burners (setting opanci limits for wigwam burners), State effective April 5, 2000;

• IDAPA 58.01.01.668 BART requirements for regional haze (outlining the process of establishing best available retrofit technology requirements for sources), State effective March 30, 2007;

• IDAPA 58.01.01.785 Rules for control of incinerators (establishing incinerator particulate matter limits), State effective May 1, 1994;

• IDAPA 58.01.01.786 Emission limits (limiting particulate matter emissions from incinerators), State effective April 5, 2000;

• IDAPA 58.01.01.787 Exceptions (exempting wigwam burners from incinerator emission limits), State effective March 23, 1998;

• IDAPA 58.01.01.805 Rules for control of hot mix asphalt plants (limiting particulate matter emissions from hot mix asphalt plants), State effective May 1, 1994;

• IDAPA 58.01.01.806 Emission limits (requiring compliance with the process weight rate limitations), State effective May 1, 1994;

• IDAPA 58.01.01.807 Multiple stacks (establishing that total emissions from all stacks are to be compared to the emission limit), State effective May 1, 1994; and

• IDAPA 58.01.01.808 Fugitive dust control (requiring fugitive dust control systems), State effective May 1, 1994.

In this document, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, we are finalizing the incorporation by reference of the Idaho regulatory provisions described in section III. of this preamble and set forth in the amendments to 40 CFR part 52 in this document. We are also removing from the SIP certain IDAPA regulatory provision identified in section III. of this preamble. The EPA has made, and will continue to make, these materials generally available through https://www.regulations.gov and at the EPA Region 10 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by the EPA for inclusion in the SIP, have been incorporated by reference by the EPA into that plan, are fully federally enforceable under sections 110 and 113 of the Clean Air Act as of the effective date of the final rule of the EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 1

Also in this document, the EPA is removing regulatory text from incorporated by reference, as described in section III. of this preamble.

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

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

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

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

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

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

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

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

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

Executive Order 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, February 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. The EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” The EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”

The air agency did not evaluate environmental justice considerations as part of its SIP submission; the Clean Air Act and applicable implementing regulations neither prohibit nor require such an evaluation. The EPA did not perform an EJ analysis and did not consider EJ in this action. Due to the nature of this action, it is expected to have a neutral to positive impact on the air quality of the affected area. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of Executive Order 12898 of achieving environmental justice for communities with EJ concerns.

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 3, 2025. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

For the reasons set forth in the preamble, 40 CFR part 52 is amended as follows:

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2023-0257 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before February 3, 2025.

The EPA's Office of Administrative Law Judges (OALJ), in which the Hearing Clerk is housed, urges parties to file and serve documents by electronic means only, notwithstanding any other particular requirements set forth in other procedural rules governing those proceedings. See “Revised Order Urging Electronic Filing and Service,” dated June 22, 2023, which can be found at https://www.epa.gov/system/files/documents/2023-06/2023-06-22%20-%20revised%20order%20urging%20electronic%20filing%20and%20service.pdf. Although the EPA's regulations require submission via U.S. Mail or hand delivery, the EPA intends to treat submissions filed via electronic means as properly filed submissions; therefore, the EPA believes the preference for submission via electronic means will not be prejudicial. When submitting documents to the OALJ electronically, a person should utilize the OALJ e-filing system at https://yosemite.epa.gov/OA/EAB/EAB-ALJ_upload.nsf.

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2023-0257, by one of the following methods:

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

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

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

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

In the Federal Register of October 26, 2023 (88 FR 73571) (FRL-10579-09-OCSPP), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 3E9064) by IR-4, North Carolina State University, 1730 Varsity Drive, Venture IV, Suite 210, Raleigh, NC 27606. The petition requested to establish tolerances in 40 CFR 180.601 for residues of the fungicide cyazofamid, including its metabolites and degradates, in or on the following raw agricultural commodities: Chick pea, edible podded at 0.5 ppm; Chick pea, succulent shelled at 0.08 ppm; Edible podded bean subgroup 6-22A at 0.5 ppm; Parsnip root at 0.09 ppm; Pulses, dried shelled bean, except soybean, subgroup 6-22E at 0.03 ppm; and Succulent shelled bean subgroup 6-22C at 0.08 ppm. The petition also proposed to remove established tolerances for residues of cyazofamid in or on the following: Bean, succulent at 0.5 ppm and Bean, succulent shelled at 0.08 ppm.

EPA has modified some of the commodity definitions to be consistent with Agency nomenclature, but the tolerance levels are being established as petitioned for.

That document referenced a summary of the petition, which is available in the docket, https://www.regulations.gov. There were no comments received in response to the notice.

Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”

Consistent with FFDCA section 408(b)(2)(D), and the factors specified therein, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for cyazofamid including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with cyazofamid follows.

In an effort to streamline its publications in the Federal Register , EPA is not reprinting sections that repeat what has been previously published for tolerance rulemaking of the same pesticide chemical. Where scientific information concerning a particular chemical remains unchanged, the content of those sections would not vary between tolerance rulemaking, and EPA considers referral back to those sections as sufficient to provide an explanation of the information EPA considered in making its safety determination for the new rulemaking.

EPA has previously published several tolerance rulemakings for cyazofamid, in which EPA concluded, based on the available information, that there is a reasonable certainty that no harm would result from aggregate exposure to cyazofamid and established tolerances for residues of that chemical. EPA is incorporating previously published sections of those rulemakings that remain unchanged, as described further in this rulemaking. Specific information on the risk assessment conducted in support of this action, including on the studies received and the nature of the adverse effects caused by cyazofamid, can be found in the document titled “Cyazofamid: Human Health Risk Assessment for New Uses of Cyazofamid on Parsnip, Root and Pulses, Dried Shelled Bean (Except Soybean), Subgroup 6-22E and Crop Group Expansions to Edible Podded Bean Subgroup 6-22A and Succulent Shelled Bean Subgroup 6-22C” which is available in the docket for this action at https://www.regulations.gov.

Toxicological profile. For a discussion of the Toxicological Profile of cyazofamid, see Unit III.A. of the rulemaking published in the Federal Register of March 18, 2020 (85 FR 15387) (FRL-10005-85).

Toxicological points of departure/Levels of concern. For a summary of the Toxicological Points of Departure/Levels of Concern used for the safety assessment of cyazofamid, see Unit III.B. of the rulemaking published in the Federal Register of February 3, 2016 (81 FR 5600) (FRL-9940-46).

Exposure assessment. Much of the exposure assessment remains unchanged from the March 18, 2020, rulemaking, although the new exposure assessment incorporates the additional dietary exposure from the petitioned-for tolerances. Other changes are described below.

No acute dietary toxicity endpoint could be identified based on the toxicology data currently available for cyazofamid; therefore, a quantitative acute assessment was not performed.

Chronic aggregate dietary (food and drinking water) exposure and risk assessments were conducted using the Dietary Exposure Evaluation Model software with the Food Commodity Intake Database (DEEM-FCID) Version 4.02. This software uses 2005-2010 food consumption data from the U.S. Department of Agriculture's (USDA's) National Health and Nutrition Examination Survey, What We Eat in America, (NHANES/WWEIA). The conservative chronic analysis assumed that cyazofamid residues are present in/on all proposed and registered food commodities at tolerance levels and 100 percent crop treated.

Anticipated residue and percent crop treated (PCT) information. EPA did not use anticipated residue or PCT information in the dietary assessment for cyazofamid. Tolerance-level residues and 100 PCT were assumed for all food commodities.

Drinking water and non-occupational exposures. For a summary of the drinking water numbers used, see Unit III.A. of the March 18, 2020, rulemaking. A chronic estimated drinking water concentration (EDWC) of 211 parts per billion (ppb) was used in the chronic dietary exposure assessment.

Cyazofamid is currently registered for the following uses that could result in residential exposures: Turf and ornamentals. The post-application assessment includes only post-application exposure (to turf and ornamentals) from hand-to-mouth exposures for children 1 to less than 2 years old.

Cumulative exposure. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” In 2016, EPA's Office of Pesticide Programs released a guidance document entitled, Pesticide Cumulative Risk Assessment: Framework for Screening Analysis. This document provides guidance on how to screen groups of pesticides for cumulative evaluation using a two-step approach beginning with the evaluation of available toxicological information and, if necessary, followed by a risk-based screening approach. This framework supplements the existing guidance documents for establishing common mechanism groups (CMGs) and conducting cumulative risk assessments (CRA). The Agency has utilized this framework for cyazofamid and determined that although cyazofamid shares some chemical and/or toxicological characteristics ( e.g., chemical structure or apical endpoint) with other pesticides, the toxicological database does not support a testable hypothesis for a common mechanism of action. No further data are required to determine that no common mechanism of toxicity exists for cyazofamid and other pesticides and no further cumulative evaluation is necessary for cyazofamid.

Safety factor for infants and children. EPA continues to conclude that there are reliable data showing that the safety of infants and children would be adequately protected if the Food Quality Protection Act (FQPA) safety factor were reduced from 10X to 1X. The reasons for that decision are articulated in Unit III.D. of the March 18, 2020, rulemaking.

Aggregate risks and determination of safety. EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing dietary exposure estimates to the acute population-adjusted dose (aPAD) and chronic population-adjusted dose (cPAD). Short-, intermediate-, and chronic-term aggregate risks are evaluated by comparing the estimated total food, water, and residential exposure to the appropriate points of departure to ensure that an adequate margin of exposure (MOE) exists.

No acute dietary toxicity endpoint could be identified based on the toxicology data currently available for cyazofamid; therefore, a quantitative acute assessment was not performed. Chronic dietary (food and drinking water) risks are below the Agency's level of concern of 100% of the cPAD; they are 2.1% of the cPAD for all infants less than 1 year old, which is the population subgroup with the highest exposure estimate.

The short-term aggregate risks combine chronic dietary (food and drinking water) and short-term residential exposures. For the short-term aggregate risk for children 1 to less than 2 years old, the aggregate MOE combining dietary exposure and incidental oral (hand-to-mouth) exposure is 6300. MOEs below 100 are of concern; this MOE is above 100 and therefore is not of concern.

Intermediate-term exposure is not expected for the residential exposure pathway. Therefore, the intermediate-term aggregate risk estimate is equivalent to chronic dietary exposure estimates, which are not of concern.

Chronic exposure is not expected for the residential exposure pathway. Therefore, the chronic aggregate risk estimate is equivalent to chronic dietary exposure estimates and are not of concern.

Because cyazofamid is classified as “not likely to be carcinogenic to humans”, EPA has concluded that aggregate exposure to cyazofamid is not likely to pose a cancer risk.

Therefore, based on the risk assessments and information described above, EPA concludes there is a reasonable certainty that no harm will result to the general population, or to infants and children, from aggregate exposure to cyazofamid residues.

For a discussion of the available analytical enforcement method, see Unit IV.A. of the March 18, 2020, rulemaking.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4).

There are no Codex MRLs established on parsnip, root; chickpea, edible podded; chickpea, succulent shelled; or any of the commodities in the Vegetable, legume, pulse, bean, dried shelled, except soybean, subgroup 6-22E.

The proposed US tolerances for expansions to crop subgroups 6-22A and 6-22C are not harmonized with similar individually established slightly lower Codex MRLs for these commodities. The U.S. tolerances are slightly higher because the U.S. tolerance expression includes the parent compound and a metabolite, while the Codex tolerance expression includes only the parent compound.

Therefore, tolerances are established for residues of cyazofamid in or on Chickpea, edible podded at 0.5 ppm; Chickpea, succulent shelled at 0.08 ppm; Parsnip, roots at 0.09 ppm; Vegetable, legume, bean, edible podded, subgroup 6-22A at 0.5 ppm; Vegetable, legume, bean, succulent shelled, subgroup 6-22C at 0.08 ppm; and Vegetable, legume, pulse, bean, dried shelled, except soybean, subgroup 6-22E at 0.03 ppm.

Additionally, the established tolerances on Bean, succulent; and Bean, succulent shelled are removed as unnecessary.

This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), or to Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq. ), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerances in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), do not apply.

This action directly regulates growers, food processors, food handlers, and food retailers, not States or Tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or Tribal Governments, on the relationship between the National Government and the States or Tribal Governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian Tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq. ).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), EPA 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 prior to publication of the rule in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, for the reasons stated in the preamble, EPA is amending 40 CFR chapter 1 as follows:

This final rule is published under the authority granted to the Secretary of Health and Human Services (HHS) by Section 1102 of the Social Security Act (the Act) (42 U.S.C. 1302), which authorizes HHS to publish regulations, not inconsistent with the Act, as may be necessary for the efficient administration of the functions for which HHS is responsible under the Act and Section 479 of the Act (42 U.S.C. 679), which mandates that HHS regulate a data collection system for national adoption and foster care data. Section 474(f) of the Act (42 U.S.C. 674(f)) requires HHS to impose penalties for non-compliant adoption and foster care data.

AFCARS is authorized by section 479 of the Act (42 U.S.C. 679), which mandates that HHS regulate a data collection system for national adoption and foster care data. The regulation at 45 CFR 1356.60(d) and the statute at 42 U.S.C. 674(a)(3) detail cost-sharing requirements for the Federal and non-Federal share of data collection system initiation, implementation, and operation. A title IV-E agency may claim Federal Financial Participation (FFP) at the rate of 50 percent for costs of a data collection system specified by section 479 of the Act (42 U.S.C. 679).

AFCARS data is used for a variety of requirements, including but not limited to, providing national statistics on the child welfare population, budgeting, providing reports to Congress, and monitoring compliance with the title IV-B and IV-E requirements. Title IV-E agencies must submit data files on a semi-annual basis to ACF. AFCARS regulations were first published in 1993 and states began submitting data in fiscal year (FY) 1995. The regulations governing operation of AFCARS are codified at 45 CFR 1355.41 through 1355.47.

ACF published a final rule revising the AFCARS regulations on December 14, 2016 (81 FR 90524, hereafter referred to as the “2016 final rule”). The rule reflected child welfare legislative changes that occurred since 1993 and included many new data elements, including information related to ICWA, and implemented statutory fiscal penalties for non-compliant AFCARS data. This rule was never implemented. Before the 2016 final rule became effective, ACF published a new rule delaying its implementation timeframe (83 FR 42225, August 21, 2018). On May 12, 2020, ACF published a final rule to again amend the AFCARS regulations (85 FR 28410, hereafter referred to as the “2020 final rule”). The 2020 final rule eliminated some of the data elements that were promulgated in the 2016 final rule and reduced the level of detail in others. The Executive Orders and actions leading to the 2020 final rule are explained in detail in the preambles to the following issuances: Advance Notice of Proposed Rulemaking (ANPRM) issued March 15, 2018 (83 FR 11449); NPRM issued April 19, 2019 (84 FR 16572); and the 2020 final rule, issued May 12, 2020 (85 FR 28410). Some of the data elements that were eliminated or altered in the 2020 final rule related to reporting on the details of ICWA's procedural protections (see also discussion at 84 FR 16573, 16575, 16577, and 85 FR 28411, and 28412). The 2020 final rule was implemented on October 1, 2022, and title IV-E agencies are now required to report AFCARS data as codified in the regulation at 45 CFR 1355.41-.47. Title IV-E agencies were required to submit the first data files with this information to ACF in May 2023. More information is available on the CB website at: https://www.acf.hhs.gov/cb/data-research/afcars-technical-assistance .

The AFCARS NPRM was published on February 23, 2024 (89 FR 13652, hereafter referred to as the “2024 NPRM”) and it proposed to add or revise approximately 45 data elements related to the procedural protections of ICWA. These data elements are located in the Out-of-Home Care Data File, 45 CFR 1355.44. The NPRM proposed to revise and expand the current ICWA-related data elements in § 1355.44(b) Child Information and add a new paragraph § 1355.44(i) Data Elements Related to ICWA, for information to be reported on children to whom ICWA applies. As explained in the NPRM (89 FR 13653), ACF is now adding data elements and revising some of the current data elements to require reporting of more detailed information related to ICWA's procedural protections via AFCARS, in order to fulfill the AFCARS statutory mandate to provide comprehensive national information on the demographics of “adoptive and foster children and their biological and adoptive foster parents,” “the status of the foster care population,” and “the extent and nature of assistance provided by Federal, state, and local adoption and foster care programs and the characteristics of the children with respect to whom such assistance is provided” (section 479(c)(3) of the Act). For AI/AN children to whom ICWA applies, it is necessary to understand the extent to which they receive ICWA's protections in order to fully understand their “status” and “characteristics,” and “the extent and nature of assistance” provided to them.

ICWA data collection helps set the stage for more informed, effective, and culturally responsive care for AI/AN children. We know AI/AN children are disproportionately represented in the state child welfare system. There is evidence that AI/AN children in state foster care have experienced a separation and disconnection from their community, culture, and language, giving them a sense of identity loss. Outcomes that AI/AN children face while being in foster care without culturally appropriate services include increased risk for runaway and homelessness, suicidal ideations, and juvenile justice interventions.

The NPRM comment period closed on April 23, 2024. In response, we received 81 comments from: 14 states and 1 county; 25 Tribes; 21 organizations; and 20 individuals/anonymous. Most commenters generally supported collecting ICWA-related information in AFCARS and supported the NPRM as proposed (75 total commenters supported, 3 commenters opposed, and 3 did not express either sentiment). The supportive commenters generally expressed that having data on ICWA's procedural protections “could inform real solutions to the persistent child welfare challenges American Indian/Alaskan Native (AI/AN) children face.” They also expressed that the data “will provide a full picture of the status of AI/AN children and families and the reasons behind the lagging outcomes they experience” that can lead to “improved policy development, technical assistance, training, and resource allocation” from having “regularly updated and reliable data available.”

Twelve of the 14 states/county expressed support for collecting information on ICWA's protections, saying that it will inform practice. They generally expressed praise for ACF's commitment to “augmenting national understanding of the experiences” of AI/AN children in foster care and the extent to which they are receiving the procedural protections required under ICWA. One of these commenters said that “AFCARS policy limitations over the last 30 years have hindered Tribal and state efforts to address reoccurring and chronic concerns about AI/AN children's well-being” and that that has contributed to states “not having a full understanding of their progress in implementing ICWA and difficulty in developing effective and collaborative responses with Tribes.” They generally expressed that the need for ongoing, reliable, and accessible data has never been greater.

Two states and one individual expressed opposition to the NPRM, saying that most of the data elements proposed in the NPRM are better suited for a case review where “individual case circumstances as well as court order language could be reviewed and analyzed to paint a more complete picture of the ICWA implementation process.” They did not believe that all the proposed data elements “add value that informs quality practice or compliance,” considering the burden and costs required for reporting and the time that would be taken “away from direct casework, potentially caus[ing] delays in timely permanency for children.” One of the two states that opposed the data collection expressed concern that state child welfare agencies have “no control over whether the legal system notifies Tribes, the timeliness of the notification, or the accuracy of the data” and that this would lead to the potential for the state to be “penalized for any legal system's non-compliance regarding notification and other requirements of ICWA.” One of the two states opposed to the data collection also expressed the opinion that reporting on ICWA's procedural protections is outside the scope of section 479 of the Act (42 U.S.C. 679).

Nine of the 14 states/county commenters also expressed concern in two areas:

• The burden and costs to update case management systems so close to the 2020 final rule being implemented (which occurred in October 2023), and being in the middle of upgrading their electronic case management systems from a “legacy system” to a Comprehensive Child Welfare Information System (CCWIS), and

• Wanting more time to implement a new final rule or delaying penalties for this data.

Seven states said they would need to add data elements to their child welfare information systems to report the NPRM elements because the information is located in case notes or court orders/minutes and not in an extractable data field for AFCARS reporting and said that this information may be compiled differently in different judicial jurisdictions across the state, so increased technical assistance may be needed. Five states, three organizations, and one individual said that states will struggle with implementation and that the burden of updating systems to implement the proposal will vary greatly among states, depending on the population of children in foster care to whom ICWA applies and where they are in the process of upgrading their case management systems. Two states expressed that the value of the data outweighs the burden and costs of updating systems.

In general, all of the Tribal commenters (25) and the vast majority of organizations (20) and individuals/anonymous (17) commenters expressed support for collecting information on ICWA's procedural protections. They expressed similar sentiments as the supportive states, such as that the lack of federal data on ICWA “has contributed to states not having a full understanding of their progress in implementing ICWA and difficulty in developing effective and collaborative responses with Tribes.” They felt that the NPRM proposal will fill in knowledge gaps, provide a better picture of the status of AI/AN children and families, their outcomes, and “create substantial new bodies of evidence for program evaluation and for evaluating the relative compliance with ICWA across jurisdictions.” They also expressed that the data from the proposal will help inform legislative and regulatory policies, indicate training needs for ICWA practices, and inform where further resources should be allocated. Tribes generally expressed that the “trust responsibility of the Federal Government justifies this important data collection, and the sad fact is Native American children are still overrepresented in the foster care and adoptive system in state court proceedings today.” Four Tribes and five organizations also expressed agreement with the interpretation of section 479 of the Act (42 U.S.C. 679) to include the collection and reporting of data related to the implementation of ICWA and expressed that they are pleased to see the current Administration adopt this clarification of authority. One Tribe and two organizations spoke to the information being located in court documents or paper case files by expressing that, in states that use good case management practices, states will have access to court information and while there may be situations where a court issues a judicial determination from the bench or does not provide all the specific information that a state may need in a court order, this does not change the fact that states should be aware of, seek clarification, and document this information in the case file.

Approximately 21 of the Tribal commenters and 15 organizations recommended specific changes to the proposal, such as suggesting wording changes for certain data elements and collecting more information related to Tribes and AI/AN children who are in foster care. These comments are delineated in IV. Section-by-Section Discussion of Regulatory Provisions and Responses to Comments.

Based on the overwhelmingly supportive response to the NPRM in general, we made few substantive changes in this final rule. Commenters agreed with the statement in the NPRM preamble (89 FR 13653) that adding data elements and revising the current data elements to report more detailed information related to ICWA's procedural protections in AFCARS will contribute to fulfilling the AFCARS statutory mandate to provide comprehensive national information on the demographics of “adoptive and foster children and their biological and adoptive foster parents,” “the status of the foster care population,” and “the extent and nature of assistance provided by Federal, state, and local adoption and foster care programs and the characteristics of the children with respect to whom such assistance is provided” (section 479(c)(3) of the Act). The supportive commenters agreed with the statements from the NPRM that inconsistent implementation of ICWA and a lack of data on ICWA's procedural protections have led to variation in applying ICWA (89 FR 13653). Thus, ACF anticipates that gathering more ICWA-related data would help ACF, researchers, and other policymakers better understand the status and experiences of AI/AN children and families interacting with the state child welfare systems and better address the continuing overrepresentation in foster care and other poor outcomes that AI/AN children experience. More complete data collection may provide a foundation for improved policy development, targeted technical assistance, and focused resources. This could assist in efforts to mitigate disproportionality for AI/AN children and families, support pathways to timely permanency for these children, and help maintain the integrity of Tribal communities. ICWA data collection offers important benefits by supporting a proactive approach to child welfare. Robust ICWA-related data collection is essential for achieving more informed, effective, and culturally responsive care for AI/AN children. ACF knows AI/AN children are disproportionately represented in the state child welfare system today. There is evidence that AI/AN children in state foster care have experienced a separation and disconnection from their community, culture, and language, giving them a sense of identity loss. Outcomes that AI/AN children have while being in foster care without culturally appropriate services include increased risk for runaway and homelessness, suicidal ideations, and juvenile justice interventions.

Data collection promotes cooperation between Tribes and federal agencies. It encourages transparency and communication, fostering trust and reinforcing the government-to-government relationship between tribes and the federal government in matters of child welfare. ACF expects that the data collection will also reveal trends about Native children in foster care—such as the rates of removal or placement in non-Native homes—indicating where Tribes and federal agencies should prioritize resources. Data can provide evidence to secure funding for services that honor ICWA's intent. Collecting ICWA data will facilitate identifying where federal and state agencies are struggling to appropriately serve AI/AN children and will provide federal agencies, states, and Tribes with critical information about where there are knowledge gaps or implementation barriers preventing better outcomes for AI/AN children. This critical information will show where more research and/or technical assistance is needed to ensure that the federal and state child welfare systems appropriately serve AI/AN families.

As stated above, most commenters generally supported collecting ICWA-related information in AFCARS and supported the NPRM as proposed, which will aid in these efforts. Commenters also offered that the data may be used to enhance the ability to develop a better understanding of the trends in out-of-home placement and barriers to permanency for AI/AN children and that it will underscore that improved policy development, technical assistance, training, and resource allocation will result from having regularly updated data available. A commenter also offered that the data elements present an opportunity to expand cross-agency collaboration that could inform policy change across federal agencies that have the authority and responsibility to act, in partnership with tribal nations, on behalf of AI/AN children and families. Another commenter offered that the data may be used for efforts to address the chronic harm caused by overrepresentation of AI/AN children in foster care, inform persistent barriers to effective implementation of ICWA and be used to craft effective, data-driven solutions to the unique harms caused to Native communities by overrepresentation in child welfare. Another commenter said that it is important to track key data elements to ensure the foster care population is being represented accurately and this data may give child welfare agencies evidence of the population they are serving and be used to implement innovative change to issues surrounding child welfare.

Under the 2020 final rule, the ICWA-related information currently reported to AFCARS is:

• whether the child, mother, father, foster parents, adoptive parents, and legal guardians are Tribal members,

• whether the state made inquiries whether the child is an Indian child as defined in ICWA,

• the date that the state was notified by the Indian Tribe or state or Tribal court that ICWA applies, and

• whether the Indian child's Tribe(s) was sent legal notice.

While that is helpful, it does not provide sufficient information about the unique factors particular to AI/AN children to meaningfully inform policymaking. Collecting more data elements related to ICWA's procedural protections would enable HHS, other Federal agencies, and the states to target policy development, training, and technical assistance to specific areas of need. Commenters said that the data in AFCARS is critical for advocates, policymakers, and child welfare administrators to eliminate foster care disproportionality and service disparities impacting Native children. A commenter also said that such data may inform reducing the rate at which AI/AN children and youth enter the child welfare system and improving outcomes for AI/AN children and youth that do enter the system and that these data elements may help improve outcomes for AI/AN children by facilitating targeted ICWA trainings, efficient resource allocation, and/or improved policymaking.

In response to the concern from one state about the potential for the state to be penalized for any legal system's non-compliance regarding notification and other requirements of ICWA, ACF wants to be clear that this final rule is not a mechanism for enforcing or policing ICWA. Regardless of what is reported by the state in the data elements, ACF has no jurisdiction to impose consequences under ICWA on the state. The states are responsible for reporting AFCARS data in accordance with 45 CFR 1355.46, which are compliance standards for reporting data that is complete, submitted on time, and is internally consistent. These compliance standards are not related to the ICWA statute or regulations from the Bureau of Indian Affairs (BIA) at the Department of Interior.

In response to the concern from one state that reporting on ICWA's procedural protections is outside the scope of section 479 of the Act, as explained in the NPRM (89 FR 13655), the purpose of this final rule is not to enforce state compliance with ICWA, but to gain a deeper and proper understanding of the challenges facing Tribal children who are in foster care. There is no other comprehensive, national data collection related to ICWA that can inform our understanding of the experiences of Tribal children in the child welfare system. Given the long history of removal of AI/AN children from their families and communities, the unique cultural considerations that apply to Tribes, 1 and Congress's determination that the ICWA procedural protections are essential for AI/AN children and families ( 25 U.S.C. 1901 and 1902), ACF has determined that collecting robust ICWA-related data concerning AI/AN children in the child welfare system can provide valuable insights for ACF, states, Tribes and policymakers. ACF is the most appropriate agency in the Federal government to collect data from state child welfare agencies. The collection of ICWA-related data may allow ACF and other stakeholders to better understand how the ICWA procedural protections are operating in the context of child welfare, whether implementation of those protections results in improved outcomes for children, and where states are struggling to implement them or in need of additional resources.

In response to the two states that expressed that the value of the data outweighs the burden and costs of updating systems, ACF agrees. The overwhelmingly supportive comments received in response to the 2024 NPRM affirmed the importance of collecting these additional data elements related to ICWA's protections. Collecting these additional data elements would provide critical information about ICWA's procedural protections, protections that were affirmed in the Supreme Court's 2023 Brackeen decision upholding ICWA, reaffirming ICWA's importance in addressing the longstanding practices that caused harm to Indian children by unnecessarily separating them from their families and communities. Also, collecting this data may provide insight into potential areas for technical assistance and supports to help improve child welfare outcomes. ICWA has been law for 40 years but there has been little in-depth data collection regarding this law. Collecting ICWA-related data in AFCARS is a step in the right direction to ensure that Indian families are kept together when possible and to provide insight into ICWA's requirements. Having uniform national data regarding ICWA's requirements can assist policymakers in understanding the scope of issues to inform policy changes. ACF also wants to reiterate what was said in the 2024 NPRM (89 FR 13655), that in both 2018 and 2019, there were comments submitted by researchers and non-governmental organizations with relevant expertise that described the important uses for the potential data collection, including underscoring the importance of certain casework activities and showing national trends. A commenter also said that this data may allow Tribes to ascertain how many of their children are in the child welfare system, facilitate the Tribe's ability to locate and protect its children, and possibly assist in planning an expansion of their judicial and social services to ensure that Tribal courts have sufficient capacity to hear custody proceedings involving their own children. Having uniform national data regarding ICWA's requirements can assist policymakers in understanding the scope of issues to inform policy changes.

ACF continues to recognize that this rulemaking represents a change in approach from the 2020 final rule, which reduced the number of ICWA data elements to be collected in AFCARS. As ACF explained in the 2024 NPRM, ACF views robust ICWA-related data collection as necessary to fulfill the AFCARS statutory purpose of collecting data “necessary to . . . assess (on a continuing basis) the incidence, characteristics, and status of adoption and foster care in the United States, and to develop appropriate national policies with respect to adoption and foster care.” 42 U.S.C. 679c(a)(2). Without more fulsome ICWA-related data, ACF will continue to be limited in its ability to, among other important functions, assess the current state of adoption and foster care programs and relevant trends that affect AI/AN families; address the unique needs of AI/AN children in foster care and their families by clarifying how the ICWA requirements and title IV-E/IV-B requirements interact in practice; improve training and technical assistance to help states comply with titles IV-E and IV-B of the Social Security Act for AI/AN children; develop future national policies concerning AI/AN children served by child welfare programs; and inform and expand partnerships across Federal agencies that invest in Indian families and promote resilient, thriving Tribal communities (89 FR 13654). A renewed understanding of the necessity of better understanding and supporting AI/AN children in foster care motivated ACF to propose the 2024 NPRM and it continues to undergird ACF's decision to collect this additional ICWA-related information in AFCARS.

To address commenters' suggestions to collect even more ICWA-related data, as stated in the 2024 NPRM (89 FR 13656), ACF also based the decision not to add additional ICWA-related data elements in part on concerns about the reliability and consistency of the data (85 FR 28411 and 28419). ACF's current understanding is that caseworkers would have to draw language from court orders and possibly transcripts to be able to report the specific information in these data elements, and that this may be difficult at times. Furthermore, ACF's current-understanding is that information and actions taken to meet ICWA's requirements may be performed by the courts themselves, and therefore the state title IV-E agency currently cannot always guarantee they have the accurate information for reporting the AFCARS data elements and therefore ACF limited the number of data elements that may be more have more relaibility challenges and require more effort by the agency. ACF plans to work with BIA on implementation of an eventual final rule and will work with BIA on implementation of this rule to clarify what information is required to be reviewed and interpreted so that agencies can input and report the proper data for AFCARS. ACF will also work with BIA to address instances where court orders are not clear or if specific information is missing within and how that affects AFCARS reporting. Given the importance of this data and why AFCARS is the right mechanism to collect it, as explained in the preamble, ACF is committed to providing the tailored technical assistance and training needed to help address any data reliability issues that may arise and believes it is sufficiently reliable to be worth collecting.

While ACF does not have any role in enforcing state compliance with ICWA, it is responsible for ensuring that state child welfare systems appropriately serve all children, including AI/AN children, and to set national child welfare policy that takes into account the needs of all foster and adoptive children. 2 There is no other comprehensive, national data collection related to ICWA that can inform our understanding of the experiences of Tribal children in the child welfare system. Given the long history of removal of AI/AN children from their families and communities, the unique cultural considerations and sovereignty issues that apply to Tribes, 3 and Congress's determination that the ICWA procedural protections are essential for AI/AN children and families (25 U.S.C. 1901 and 1902), ACF continues to determine that collecting more ICWA-related data in AFCARS can provide valuable insights for ACF, states, Tribes and policymakers. ACF is the most appropriate agency in the Federal government to collect data from state child welfare agencies. This ICWA-related data will allow ACF and other stakeholders to better understand how the ICWA procedural protections are operating in the context of child welfare, whether implementation of those protections results in improved outcomes for children, and where states are struggling to implement them or in need of additional resources (89 FR 13655).

ACF understands that this final rule will put an additional burden on state child welfare agencies as does any additional data collection requirement. ACF has given this serious consideration in developing this final rule and analyzing the 2024 NPRM comments, both because of concerns expressed by some states for resource issues, systems upgrades, and data entry and because the AFCARS statute requires ACF to “avoid unnecessary diversion of resources from agencies responsible for adoption and foster care” when regulating AFCARS (section 479(c)(1) of the Act). ACF is mindful of the cost to state title IV-E agencies of collecting this data, but at the same time, is mindful of the costs to AI/AN children, families, and Tribes, as well as ACF, states, and policymakers, of not collecting the data. While any data collection requirement imposes costs, the key consideration under the statute is whether such costs result in an “unnecessary diversion of resources” from agencies. As explained in the 2024 NPRM (89 FR 13657), having more data on ICWA's procedural requirements may lead to improvements in light of the disproportionately negative outcomes generally experienced by AI/AN children, youth, and families  4 and the overrepresentation of AI/AN children in the child welfare system. 5 ACF realizes that all states have or are in the process of modifying their data systems to collect the new data elements, largely unrelated to ICWA, required by the 2020 final rule. ACF also realizes that adding additional data elements to state data collection systems will present an additional financial and personnel cost and that the data is qualitative in nature, meaning that it likely will be more costly and time-consuming to report because, we understand, that the information is in paper files or case notes, and not already within data fields ready for reporting. However, ACF does not see these as sufficient reasons to not require reporting of ICWA procedural requirements in AFCARS, given the importance of the data.

AFCARS may be modified when needed, for example, to reflect legislative changes and other changing needs for particular kinds of data. In general, AFCARS regulations may be amended at any time to accommodate changes in law, policy, or other matters that are tied to the title IV-B/IV-E programs and accordingly, ACF does not view this final rule as implicating states' reliance interests. With the plan to give states three federal fiscal years to implement this final rule, ACF believes that allows time for states to make the needed modifications.

Thus, in light of the supportive comments received and the importance of the data, on balance, ACF determined that the value of collecting the data outweighs the burden it imposes, and that any cost imposition is not “unnecessary.” We address specific comments received on burden and costs in V. Regulatory Impact Analysis.

This rule is consistent with the administration's priority of advancing equity for those historically underserved and adversely affected by persistent poverty and inequality (Executive Order 13985 Advancing Racial Equity and Support for Underserved Communities Through the Federal Government, Jan. 20, 2021 and 14091 Further Advancing Racial Equity and Support for Underserved Communities Through the Federal Government, Feb. 16, 2023). Research well-documents the overrepresentation of certain groups in foster care relative to their representation in the general population. AI/AN children are at greater risk than other children of being confirmed for maltreatment and placed in out-of-home care. 6 The additional data in this final rule may allow ACF and other stakeholders to better understand opportunities to advance equitable outcomes for AI/AN children.

Currently, state title IV-E agencies report the following related to ICWA in AFCARS:

• Tribal membership of the child, mother, father, foster parents, adoptive parents, and legal guardians—§  1355.44(b)(4), (c)(3) and (4), (e)(10) and (15), and (h)(4) and (9).

• Whether the state made inquiries whether the child is an Indian child as defined in ICWA—§ 1355.44(b)(3).

• Whether ICWA applies for the child and the date that the state was notified by the Indian Tribe or state or Tribal court that ICWA applies—§ 1355.44(b)(5).

• Whether the Indian child's Tribe(s) was sent legal notice—§ 1355.44(b)(6).

This final rule revises the current data elements in § 1355.44(b) to report more detailed information on ICWA's procedural protections and, in new § 1355.44(i), adds data elements on certain aspects of ICWA's procedural protections for requests for transfers to Tribal court, termination/modification of parental rights, and foster care, pre-adoptive and adoptive placement preferences. The section-by-section preamble explains in detail how the current CFR will be amended to include the new information for states to report. In summary, state title IV-E agencies must report the following additional information related to ICWA's procedural protections:

• Whether the state inquired with certain individuals as to whether the child is an Indian child as defined in ICWA and when the agency first discovered information indicating that the child is or may be an Indian child as defined in ICWA (§ 1355.44(b)(3) and (4)).

• Whether the child's parent, Tribe, or Indian custodian was sent notice in accordance with ICWA (§ 1355.44(b)(5)).

• Information on whether a court determined that ICWA applies for the child; if yes, the date the court determined ICWA applies, and the Tribe that the court determined is the Indian child's Tribe (§ 1355.44(b)(6)).

• Whether the child's case record indicated a request to transfer to Tribal court and if transfer was denied, the reason for denial (§ 1355.44(i)(1)).

• Information on involuntary and voluntary terminations or modifications of parental rights under ICWA (§ 1355.44(i)(2) and (3)).

• Information on removals under ICWA (§ 1355.44(i)(4)).

• Information on the placement preferences under ICWA for foster care, pre-adoptive, and adoptive placements (§ 1355.44(i)(5)-(8) and (10)-(13)).

• Whether the court determined that the state title IV-E agency made active efforts to prevent the breakup of the Indian family (§ 1355.44(i)(9)).

ACF stated in the 2024 NPRM (89 FR 13656) that ACF will not release specific information regarding a child's Tribal membership or ICWA applicability except to the Indian Tribe in which the child is or may be a member, in order to protect the child's confidentiality. ACF had reached this decision in light of the need to ensure privacy and confidentiality as several states have very few Indian children in foster care. There is a significant privacy interest in that the information given could reveal a child's identity. Safeguarding information in instances where there is a small number of children in a jurisdiction is consistent with existing practice. The current practice for small populations in jurisdictions is to aggregate the data into larger groups so that those children cannot be identified. This current practice would not change under this final rule. Of the total commenters, two commented on the topic of confidentiality and both expressed support for collecting the data proposed in the 2024 NPRM and ensuring safeguards protect privacy and confidentiality of AI/AN children in foster care.

ACF is providing three (3) full Federal fiscal years for state title IV-E agencies to comply with the revisions to § 1355.44(b) and (i), rather than the two fiscal years proposed, which we believe is sufficient for state title IV-E agencies to implement the changes necessary to comply with this final rule. This decision was informed by the 2024 NPRM comments that we describe below. During the implementation period, state title IV-E agencies must continue to report to ACF the ICWA-related data that is currently required in § 1355.44(b)(3)-(6). It is essential for states to continue to report this information to ACF without interruption because AFCARS data is used for various reports, national statistics, planning, and monitoring. This means that the first report period when state title IV-E agencies must begin collecting the information required in this final rule begins October 1, 2028, and the first data files containing this information will be due to ACF by May 15, 2029.

2024 NPRM Comments: Of the nine states that made comments relevant to the implementation timeframe, four states asked for a three-fiscal year timeframe and four states expressed wanting “sufficient time,” saying that this is due to their resource issues with implementing the 2020 final rule and making systems updates. Only two of the nine states supported a two-fiscal year implementation timeframe. ACF recognizes that while currently, most states have submitted compliant data files for the 2020 final rule requirements, it took a majority of the states over four fiscal years to fully implement the 2020 final rule. The first data files submitted by most states in May 2023 were noncompliant, meaning that the data files either did not report historical information for those data elements that required it or states instead submitted data as per the now-superseded 1993 regulations. Regarding specifically the ICWA-related data elements from the 2020 final rule, approximately 12-14 states did not accurately report the information, meaning, for example, that seven states reported “no” to making any inquiries as to whether the child may be an Indian child (§ 1355.44(b)(3)) and 14 states reported that they had no children where ICWA applied (§ 1355.44(b)(5)), but we know that some of these states have federally recognized Tribes. ACF understands that the data in this final rule is important, however, ACF feels strongly that the data can only be useful and reliable if we have full, compliant data from all states. Thus, ACF considered the progress states made in implementing the 2020 final rule over the last four years, the length of time it took them to do so, and the increase in data points that we are regulating in this final rule (49) and decided to provide states with a three-fiscal year timeframe to implement this final rule.

Additionally, ACF is specifying that states must report the new/revised ICWA-related data elements required in this final rule for children who enter the Out-of-Home Care Reporting Population on or after the implementation date of the final rule (October 1, 2028). For children who enter and exit the Out-of-Home Care Reporting Population before the implementation date, only the 2020 final rule's ICWA-related data elements will be reported. For children who enter the Out-of-Home Care Reporting Population before the implementation date and exit on or after implementation date, the state title IV-E agency must report the information only for paragraphs (b)(4)(i) and (ii) and (b)(6)(i) from this final rule. These data elements ask: whether the child is a member of or eligible for membership in a federally recognized Indian Tribe; all federally recognized Indian Tribe(s) that may potentially be the Indian child's Tribe(s); and whether a court determined that ICWA applies or that the court is applying ICWA because it knows or has reason to know a child is an Indian child as defined in ICWA in accordance with 25 CFR 23.107(b)(2). Similar information on the child's Tribal membership, the names of Tribes, and whether ICWA applies for the child are information that states are currently reporting under the 2020 final rule. This is described in the preamble and regulation text for § 1355.43 below.

One commenter recommended that ACF not apply all of the ICWA-related data elements from this final rule for children who are in the Out-of-Home Care Reporting Population before the implementation date and exit on or after the implementation date because it would be “overly burdensome” to require states to retroactively seek out data in older case files or court records, particularly for children who were in foster care for many years. This would significantly reduce the reliability and usefulness of the data reported. ACF agrees with this recommendation based on implementing the 2020 final rule, where we had required title IV-E agencies to report each date of removal, exit, and exit reason for each child who had an out-of-home care episode prior to October 1, 2020. This meant that title IV-E agencies did not need to report complete historical and current information for every data element that required it in the 2020 final rule for these children. States had issues reporting historical information for those three data elements for children who were in foster care for many years, even though we understood at the time that this information would be in their case records. Now, ACF understands from the 2024 NPRM commenters that the information that will be used to report the ICWA-related data elements in this final rule are located in case notes or court documents/court orders and not currently in extractable data fields. This means that for children in foster care prior to the implementation date, ACF anticipates that states will struggle to locate and report the details on ICWA's procedural protections especially for children who have been in foster care for many years because this information may be years old. In considering the comments received in response to the 2024 NPRM and the lessons learned from implementing the 2020 final rule, ACF decided to require the new/revised ICWA-related data elements in this final rule to be reported only for children who enter the Out-of-Home Care Reporting Population on or after the implementation date of the final rule.

References throughout this proposed rule to “child” or “children” are inclusive of youth and young adults aged 18 or older who are served by the title IV-E and IV-B programs. ACF uses these terms in the regulatory text and section-by-section preamble discussion because these are used throughout the title IV-E and IV-B statute and regulations.

For the reasons described above, ACF's authority to implement each of the provisions in this the regulation is well-supported and should be upheld in any legal challenge. ACF also believes that its exercise of its authority reflects sound policy. However, in the event that any portion of the rule is declared invalid, ACF intends that the other provisions be severable because they could still function sensibly. For example, ACF expects that if a court were to invalidate any paragraph under new § 1355.44(i), the other paragraphs should remain in effect because the data elements are independent of each other (with the exception that an invalidation of § 1355.44(i)(7) would necessitate an invalidation of § 1355.44(i)(8), and an invalidation of § 1355.44(i)(12) would necessitate an invalidation of § 1355.44(i)(13), because each of those pairs is linked). Additionally, if a court were to invalidate any of the specific data elements within any paragraph of § 1355.44(b) or (i), ACF intends that the collection of the other data elements within that subparagraph remain in effect to the maximum extent practicable because the vast majority of the data elements are independent of each other, and thus could still be collected and would still be meaningful to collect even if particular data elements were invalidated.

This section contains data reporting requirements for AFCARS, such as report periods and deadlines for submitting data files, and descriptions of data quality errors. The 2024 NPRM proposed only technical edits to amend paragraphs (b)(1) and (2) to correct cross references to data elements in § 1355.44 and remove paragraph (b)(3) to eliminate obsolete dates. No comments were received on these amendments. However, ACF made changes to the proposal to reflect the implementation directions for reporting information on children who are in the Out-of-Home Care Reporting Population before the implementation date and exit on or after the implementation date. Thus, in this final rule, ACF made technical edits to paragraphs (b)(1) and (2) to correct cross references to data elements in § 1355.44 and in amended paragraph (b)(3) to require state title IV-E agencies to report information only for the data elements in § 1355.44(b)(4)(i) and (ii), and (6)(i) for children who are in the Out-of-Home Care Reporting Population before the implementation date and exit on or after the implementation date. As explained in section III Implementation Timeframe, ACF understands from the 2024 NPRM commenters and our experience implementing the 2020 final rule that reporting the details on ICWA's procedural protections for all data elements in this final rule will be difficult in the case of children who have been in foster care for many years. ACF understand that this is because the case information may be years old (for example, whether there was testimony from a qualified expert witness) and would be difficult to report for these children. However, state title IV-E agencies must report all information in this final rule for children who enter the Out-of-Home Care Reporting Population on or after the implementation date.

This section contains the data element descriptions for the Out-of-Home Care Data File.

Paragraph (b) contains specific information for the identified child who is in the Out-of-Home Care Reporting Population.

Researching reason to know a child is an “Indian Child” as defined in ICWA. In paragraphs (b)(3)(i) through (vii), the state title IV-E agency must report whether it researched whether there is reason to know that the child is an Indian child as defined in ICWA, which is whether it inquired with the following entities: the child; the child's biological or adoptive mother and father; the child's Indian custodian; the child's legal guardian; and the child's extended family (as defined in ICWA). The state title IV-E agency must also indicate whether the domicile or residence of the child, the child's parent, or the child's Indian custodian is on a reservation or in an Alaska Native village. This data element replaces and expands the current data element in § 1355.44(b)(3) that asks whether the state title IV-E agency made inquiries as to whether the child is an Indian child as defined in ICWA, with a yes/no response option.

Comment: One commenter recommended adding a data element on inquiring with a legal guardian because “not all legal guardians would be considered Indian custodians.”

Response: ACF agrees and added a data element in paragraph (b)(3)(vii) to require the state to report whether it inquired with the child's legal guardian for the reason cited by the commenter.

Comment: Three commenters recommended revising the response options in paragraph (b)(3)(v) to add a response option for “child not of sufficient age and capacity.” They suggested this revision because “it would be difficult to understand why a state agency might not inquire with the child.”

Response: ACF did not revise this data element for several reasons. The data required to be reported in paragraph (b)(3) asks whether the state inquired with the child, among others, with yes/no response options. Whether a child was not of “sufficient age and capacity” would require us to seek public comment to define what that means. Additionally, there are no requirements in the ICWA statute, BIA regulations, or titles IV-B or IV-E that guide recording, measuring, or ACF collecting this information. Additionally, the child's age is collected in paragraph (b)(1).

Comment: One commenter recommended adding a data element for the state to report at what point in the case the child was identified as qualifying under ICWA.

Response: We did not add a data element on this because researching whether a child is an “Indian Child” as defined in ICWA is already being reported for paragraphs (b)(3)(i)-(vii) and the date that the state first discovered the information indicating the child is or may be an Indian child is already being reported for paragraph (b)(4)(iv).

Comment: One commenter recommended adding data elements for the state to report on the involvement of the child's parents in the case, such as how often the parents attended hearings and the quality of their attendance.

Response: We did not add data elements on parents' involvement in the case because it is impossible to report to AFCARS narrative information and aggregate this information into national statistics. Additionally, ACF does not believe that this information is a particularly unique policy concern related to AI/AN Indian children that warrants reporting to AFCARS, it was not part of the proposed rule, and it would be difficult to interpret without substantially more contextual information. Lastly, there are no requirements in the ICWA statute, BIA regulations, or titles IV-B or IV-E that guide recording or measuring such information.

Comment: One commenter asked for clarification on who are the “certain individuals” states must inquire with as to whether the child is an Indian child.

Response: The regulation text in paragraphs (b)(3)(i) through (vii) specifies those individuals. They are the child, the child's biological or adoptive mother/father, Indian custodian, extended family, and legal guardian. State title IV-E agencies must also report whether the domicile or residence of the child/parent/Indian custodian is on a reservation or in an Alaska Native village.

Comment: One commenter suggested adding data elements for the state to inquire with “other adult relatives” and whether they are members of an Indian Tribe saying that it will assist in determining if the child is an Indian child as defined under ICWA.

Response: We did not add data elements for the state to collect information on other adult relatives because inquiring with an “extended family member” is already being reported in paragraph (b)(3)(iv) and “extended family members” is defined in ICWA at 25 U.S.C. 1903(2).

Comment: Two commenters suggested adding elements related to Tribal ancestry for the child, parents, grandparents, and family for state recognized or non-federally recognized Tribes, specifics about the Tribe's federal recognitions status, and Tribal enrollment documents.

Response: We did not add data elements on family ancestry, the status of a Tribe's federal recognition, or Tribal enrollment because ICWA only applies to children who are members of or eligible for membership in federally recognized Tribes (25 U.S.C. 1903(8). Additionally, it is not feasible to collect information on Tribal enrollment documents and ancestry in AFCARS because this information is very detailed and would not yield any set of aggregated national information.

Child's Tribal membership and reason to know. In paragraphs (b)(4)(i) and (ii), the state title IV-E agency must continue to report whether the child is a member of or eligible for membership in a Federally recognized Indian Tribe, and if “yes,” the state title IV-E agency must indicate all Federally recognized Indian Tribe(s) that may potentially be the Indian child's Tribe(s). This information is currently reported in § 1355.44(b)(4)(i) and (ii) and is used to help identify children in the out-of-home care reporting population who are or may be Tribal members. In paragraphs (b)(4)(iii) and (iv), the state title IV-E agency must indicate whether it knows or has reason to know that the child is an Indian child as defined in ICWA, and if “yes,” then the state title IV-E agency must indicate the date that it first discovered the information indicating the child is or may be an Indian child as defined in ICWA. The information reported for paragraphs (b)(4)(iii) and (iv) and (b)(6) (discussed below) would replace the current data element in § 1355.44(b)(5), which required the state IV-E agency to report only whether ICWA applies and if so, the date the state title IV-E agency was notified, because these changes require more details related to ICWA's procedural requirements on “reason to know”. No comments were received on these amendments and ACF does not have a reason to make further revisions, so no changes were made to the proposal.

Notification. In paragraphs (b)(5)(i) and (ii), the state title IV-E agency must report whether the Indian child's Tribe(s) was sent legal notice in accordance with 25 U.S.C. 1912(a) (which is currently required in § 1355.44(b)(6)) and we newly require that if “yes,” the state title IV-E agency must report the Indian Tribe(s) that were sent notice. In paragraph (b)(5)(iii), the state title IV-E agency must report whether the Indian child's parent or Indian custodian was sent legal notice prior to the first child custody proceeding in accordance with 25 U.S.C. 1912(a). These data elements replace and expand on the information reported for the current data element in § 1355.44(b)(6) that asks whether the Indian child's Tribe(s) was sent legal notice with yes/no response options.

Comment: Nine commenters requested that the data element include language of whether the notice “was sent 10 days prior” to the first custody hearing.

Response: We did not add the language of “10 days prior” to the data elements because it is already built into the requirement for reporting this data element in that the state must report that it notified in accordance with ICWA at 25 U.S.C. 1912(a). The statute at 25 U.S.C. 1912(a) contains the specification that the notice must be received by the parent/custodian more than 10 days prior to the first child custody proceeding.

Comment: One commenter requested adding more data elements on: how notice was transmitted, and if it was properly addressed, notice sent to the BIA or the Tribe's designated ICWA agents listed on the BIA website, and notice sent to the Federal Register .

Response: We did not add these suggested data elements because we believe they are too detailed for national data collection, and we do not have a reason to collect this information. Lastly, adding more data elements for this type of information is outside the scope of the NPRM's proposal for this data element, unnecessarily burdensome and would increase state and federal costs to collect.

Comment: One commenter requested adding data elements on whether the Tribe was notified of voluntary foster care placements that are not covered under the ICWA notice requirements of 25 U.S.C. 1912(a) because they felt it will enable policy makers to identify gaps in ICWA in terms of countering practices that contribute to the disproportionate removal of Indian children.

Response: We did not add this data element because there are no requirements in the ICWA statute, BIA regulations, or titles IV-B or IV-E that guide recording or measuring such information. Thus, adding a data element on this would be requiring states to report on actions they are not otherwise required to undertake. Lastly, this information is outside the scope of the NPRM's proposal for this data element, unnecessarily burdensome and would increase state and federal costs to collect.

Comment: A few commenters requested adding data elements on the date of the notice, the date the notice was received by the parent, Indian custodian, and Tribe, and the date the petition was filed. Commenters indicated it is “easily located and are not qualitative or too detailed in nature and provides important additional information regarding whether notice was timely.”

Response: We did not add any data elements requiring the state to report the dates of notices or petitions because there is no need to have aggregated national statistics on this information. First, the ICWA statute at 25 U.S.C. 1912(a) contains the specification that the notice must be received at least 10 days before the proceeding, thus a response from a state of “yes” in paragraphs (b)(5)(i) and (iii) indicates that the timeframes are met. We did not add any data elements on petition dates because information must to be reported to AFCARS only when a child enters the Out-of-Home Care Reporting Population. Per § 1355.42, a child must be in “foster care” as defined in § 1355.20 and in § 1355.44(d)(1) the state reports the removal date when a child enters the placement and care responsibility of the title IV-E agency. Thus, children with only a removal petition filed and who are not in the placement and care responsibility of the state are not included in the Out-of-Home Care Reporting Population.

Comment: One commenter requested adding data elements on notice to other adult relatives, non-Indian relatives, and kin because this should align with “the Fostering Connections to Success and Increasing Adoptions Act of 2006 require[ment] that adult grandparents and other adult relatives of the child be identified and notified within 30 days of when a child is removed from his or her home.”

Response: We did not add data elements on this because there are no requirements in the ICWA statute or BIA regulations for notice to other adult relatives, non-Indian relatives, or kin. The commenter is not referring to a requirement in ICWA. The commenter is referencing a required notice to relatives under section 471(a)(29) of the Act (42 U.S.C. 671(a)(29)) that is much more expansive and applies to all children in foster care, including children to whom ICWA applies. State compliance with the notice to relatives requirement is monitored through the Child and Family Services Review (see item 10C of the on-site review instrument).

Comment: One commenter requested adding data elements on: when in the case the Tribe was notified; how the Tribe was notified; when in the case the Tribe intervened; what was the Tribe's level of participation; was the Tribe a “party” to the case; a definition of “proper notice” to the Tribe; and Tribal affiliation information.

Response: We did not add data elements as suggested because they are too detailed for aggregated national statistics, and ACF does not have a reason to know this information. Regarding the suggestion for adding “when in the case the Tribe was notified,” ACF does not have a need for states to report the dates of when a Tribe was notified because a response of “yes” in paragraphs (b)(5)(i) and (iii) would indicate that the Indian child's Tribe, parent or Indian custodian were given proper legal notice of the child custody proceeding more than 10 days prior to the first child custody proceeding in accordance with 25 U.S.C. 1912(a). Regarding adding “how the Tribe was notified,” the ICWA statute and BIA regulations define what constitutes notice and specifies the methods of how notice must be sent, so we do not see a need to collect this information since the procedure is already contained within the statutory and regulatory requirements at 25 CFR 23.111 and § 1912(a). Regarding adding “when in the case that the Tribe intervened,” “the Tribe's level of participation” in a case, and whether the Tribe was a “party” to a case, those proposed data elements are impossible to report to AFCARS because narrative information cannot be reported to AFCARS and aggregated into national statistics due to the wide variation in what could be written. Reporting “when in the case that the Tribe intervened,” “the Tribe's level of participation” in a case, and whether the Tribe was a “party” to a case would not yield any insight when this final rule is requiring reporting of requests to transfer cases to Tribal court in paragraph (i)(1). Additionally, there are no requirements in the ICWA statute, BIA regulations or titles IV-B or IV-E that guide recording or measuring such information. Tribal affiliation is reported in paragraph (b)(4) on child's Tribal membership.

Application of ICWA. In paragraph (b)(6), ACF requires the state title IV-E agency to report information related to ICWA's application. In paragraph (b)(6)(i), the state title IV-E agency must report whether a court determined that ICWA applies or that the court is applying ICWA because it knows or has reason to know a child is an Indian child as defined in ICWA in accordance with 25 CFR 23.107(b)(2). If the state title IV-E agency indicates “yes, ICWA applies,” then it must complete paragraphs (b)(6)(ii) and (iii) and new paragraph (i) of this section. In paragraphs (b)(6)(ii) and (iii), the state title IV-E agency must report the date that the court determined that ICWA applies and the Indian Tribe that the court determined is the Indian child's Tribe for ICWA purposes. Of the total commenters, seven commented on this element and all of them expressed support. ACF did not receive comments for changes to our proposal for this paragraph, thus we finalize this data element as proposed.

In new paragraph (i), we propose to obtain information on certain requirements related to ICWA. This paragraph applies only to state title IV-E agencies that reported “yes, ICWA applies” in paragraph (b)(6)(i); otherwise, the state title IV-E agency must leave paragraph (i) blank. Tribal title IV-E agencies do not report information in paragraph (i). This section is new and is an expansion of the ICWA-related information state title IV-E agencies are currently required to report under § 1355.44. The information proposed to be reported relates to transfers to Tribal court, involuntary and voluntary terminations/modifications of parental rights, active efforts, and placement preferences under ICWA.

Request to transfer to Tribal court. In paragraph (i)(1), the state title IV-E agency must report information on requests to transfer to Tribal court. In paragraph (i)(1)(i), the state title IV-E agency must report whether there was a request to transfer to Tribal court for each removal date reported in § 1355.44(d)(1). If the state title IV-E agency indicates “yes,” it must report whether there was a denial of the request to transfer to Tribal court in paragraph (i)(1)(ii). If the state title IV-E agency indicated “yes” in paragraph (i)(1)(ii), then it must complete paragraph (i)(1)(iii) indicating whether each reason for denial in paragraphs (i)(1)(iii)(A) through (C) “applies” or “does not apply.” The reasons are: Either of the parents objected to transferring the case to the Tribal court; the Tribal court declined the transfer to the Tribal court; The state court determined good cause exists for denying the transfer to the Tribal court.

Comment: Twenty-four commenters requested adding a data element asking for the “reason for the denial of transfer,” if the state reports “yes” for paragraph (i)(1)(ii) and 20 commenters requested adding an element on the reason for the good cause that exists for denying the transfer to Tribal court. Commenters stated that this additional data might “uncover unfair state practices” and would provide information on “what state courts consider good cause to deny transfers,” which could indicate a need for state and Tribal courts to collaborate to provide alternative forums, such as video conferencing.

Response: ACF agrees with commenters that the data element on “reason for denial of transfer” should be added and is adding a data element asking for the reason for denial of the request to transfer to Tribal court. We included this reporting at new paragraph (i)(1)(iii) and the language used is modeled after the data element that was in the 2016 final rule (81 FR 90571). ACF added this for the reasons expressed by the commenters, as well as that this information may improve understanding of case transfers for continued quality improvement and could deepen an understanding of ICWA, specifically where state courts and Tribal courts interact. However, ACF did not add another data element asking for the “reason for good cause” to deny transfers because ACF does not have any indication of what potential reasons could be without more input from public comment and the data element would be of limited use without additional detail on what those potential reasons could be.

Comment: Two commenters requested that we remove the language of “case record indicated” from paragraphs (i)(1)(i) and (ii) because these are the only elements that ask whether the case record indicated a specific fact, but all elements in this NPRM could be indicated by the case record.

Response: We removed the language “the child's case record indicated” as recommended by the commenters, which will allow for consistency in the final rule.

Involuntary termination/modification of parental rights under ICWA. In paragraph (i)(2), ACF requires that the title IV-E agency report information on involuntary terminations or modifications of parental rights under ICWA. If the title IV-E agency indicated “involuntary” in paragraph (c)(5) they must complete this paragraph, if applicable. In paragraph (i)(2)(i), the title IV-E agency must report whether the state court found beyond a reasonable doubt that continued custody of the Indian child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the Indian child in accordance with 25 U.S.C. 1912(f). In paragraph (i)(2)(ii), the state title IV-E agency must report whether the court decision to involuntarily terminate parental rights included the testimony of one or more qualified expert witnesses in accordance with 25 U.S.C. 1912(f). In paragraph (i)(2)(iii), the state title IV-E agency must report whether, prior to terminating parental rights, the court concluded that active efforts had been made to prevent the breakup of the Indian family and that those efforts were unsuccessful in accordance with 25 U.S.C. 1912(d).

ACF did not receive comments suggesting changes to our proposal for this paragraph, thus we finalize this data element as proposed. Three commenters expressed support for this data element and one commenter supported the element but said their state will need to make changes to their electronic case management system to capture information to report for paragraph (i)(2)(ii) because currently it is located only in court minute entries and not in an extractable data field. Another commenter opposed this data element, saying these elements “are process oriented elements that lend more to in-depth individual case review than to quantitative reporting,” that they are not captured in their existing data system and “would need to be identified through time consuming case-by-case review of individual court orders.” The commenter further said that “this type of data analysis would more effectively be accomplished through case review processes.” ACF continues to believe that this data element reflects a key protection of ICWA (89 FR 13653) and that including this data element contributes to fulfilling the statutory requirements of the AFCARS mandate by providing comprehensive national information on the demographics and status of adoptive and foster children and their biological and adoptive or foster parents in the foster care program. This data will enable policymakers and researchers to develop more effective polices and support mechanisms tailored to the needs of AI/AN children and their families.

Voluntary termination/modification of parental rights under ICWA. In paragraph (i)(3), we require the state title IV-E agency to report information on voluntary terminations or modifications of parental rights under ICWA. The state title IV-E agency must complete the information in this paragraph if it indicated the termination of parental rights was “voluntary” in § 1355.44(c)(5). In paragraph (i)(3)(i) through (iii), in accordance with 25 CFR 23.125, the state title IV-E agency must indicate whether the consent to termination of parental or Indian custodian rights was:

• Executed in writing.

• Recorded before a court of competent jurisdiction.

• Accompanied with a certification by the court that the terms and consequences of consent were explained on the record in detail and were fully understood by the parent or Indian custodian in accordance with 25 CFR 23.125(a) and (c).

ACF did not receive comments suggesting changes to the proposal for this paragraph, thus we finalize this data element as proposed. In general, five commenters expressed support for this element. Another commenter opposed this data element saying the data elements proposed to be collected were “process oriented,” lend themselves more to in-depth individual case review than to quantitative reporting,” are not captured in their existing data system, “would need to be identified through time consuming case-by-case review of individual court orders,” and that “this type of data analysis would more effectively be accomplished through case review processes.” ACF continues to believe that this data element is a key protection of ICWA (89 FR 13653) and aims to fulfill the statutory requirements of the AFCARS mandate by providing comprehensive national information on the status of adoptive and foster children and their biological and adoptive or foster parents in the foster care program. It also seeks to address the lack of data on AI/AN children. This data may enable policymakers and researchers to develop more effective polices and support mechanisms tailored to the needs of AI/AN children and their families.of data on AI/AN children. This data may enable policymakers and researchers to develop more effective polices and support mechanisms tailored to the needs of AI/AN children and their families.

Removals under ICWA. In paragraph (i)(4), the state title IV-E agency must report information on removals under ICWA, for each removal date that is reported in paragraph (d)(1). In paragraph (i)(4)(i), the state title IV-E agency must indicate whether the court order for foster care placement was made as a result of clear and convincing evidence that continued custody of the Indian child by the parent or Indian custodian was likely to result in serious emotional or physical damage to the Indian child in accordance with 25 U.S.C. 1912(e) and 25 CFR 23.121(a). In paragraph (i)(4)(ii), the state title IV-E agency must indicate whether the evidence presented for foster care placement, as reported in paragraph (i)(4)(i), included the testimony of a qualified expert witness in accordance with 25 U.S.C. 1912(e) and 25 CFR 23.121(a). In paragraph (i)(4)(iii), the state title IV-E agency must indicate whether the evidence presented for foster care placement, as reported in paragraph (i)(4)(i), indicates that prior to each removal date reported in paragraph (d)(1) of this section, active efforts have been made to prevent the breakup of the Indian family and that those efforts were unsuccessful in accordance with 25 U.S.C. 1912(d).

Comment: Twenty commenters requested adding data elements on “voluntary removals under ICWA,” stating that collecting this information would “help remedy a statutory hole within ICWA.” Further, they stated that 25 U.S.C. 1913 “does not offer the same procedural due process protections found under the involuntary proceedings as 25 U.S.C. 1912 does.” They said that in practice, “very few voluntary foster care placements, such as those done via a safety plan with the state agency or under the Families First Prevention Services Act in Title IV-E,” meet the requirements of 25 U.S.C. 1913, thus collecting this data would “help with education on this issue and to ensure federal coordination between enforcement of Title IV-E funding goals and ICWA's protections.” However, commenters did not provide further details to inform such an additional data collection.

Response: ACF did not add a data element on “voluntary foster care removals under ICWA.” The NPRM did not indicate that we were considering collecting data on such removals, and therefore, we will not finalize a new data element without public input and Tribal consultation on issues such as what constitutes a voluntary foster placement under ICWA and which requirements in 25 U.S.C. 1913 are most important to collect in AFCARS.

Comment: One commenter recommended adding a data element on when states enter into voluntary service agreements with parents prior to a child custody proceeding.

Response: We did not add a data element on this for several reasons. ICWA statute and BIA regulations do not require the state to provide a notice to Tribes when they engage in pre-removal voluntary agreements with a child's parents. AFCARS does not capture information about services provided to the family prior to the child entering foster care, thus it would not be feasible to have states report this information. The state is not required to report information in AFCARS until a child enters the Out-of-Home Care Reporting Population. Lastly, the NPRM did not indicate that we were considering collecting data on pre-removal voluntary services agreements and we would want further public input and Tribal consultation before adding this as a new data element.

Comment: One commenter asked for a measurable or clear definition of “active efforts” and recommended adding data elements on whether an active efforts finding was made to preserve and reunify the family and the timing in the case of such finding.

Response: We did not add a data element on this because reporting whether active efforts were made to preserve and reunify the family are reported in paragraph (i)(4)(iii). We did not add data elements to report the timing of active efforts decisions because there is no need for this information to be reported to ACF to be aggregated at the national level. A definition of “active efforts” is not needed or appropriate in AFCARS because BIA regulations already define “active efforts” (25 CFR 23.2).

Available ICWA foster care and pre-adoptive placement preferences. In paragraph (i)(5), the state title IV-E agency must report which foster care or pre-adoptive placements (reported in § 1355.44(e)(1)) that meet the placement preferences of ICWA in 25 U.S.C. 1915(b) and (c) were willing to accept placement for the child, from a list of five options. The following five options in paragraph (i)(5)(i) through (v) are: A member of the Indian child's extended family (as defined in ICWA); a foster home licensed, approved, or specified by the Indian child's Tribe; an Indian foster home licensed or approved by an authorized non-Indian licensing authority; an institution for children approved by an Indian Tribe or operated by an Indian organization which has a program suitable to meet the Indian child's needs; and a placement that complies with the order of preference for foster care or pre-adoptive placements established by an Indian child's Tribe. The state title IV-E agency must indicate in each paragraph (i)(5)(i) through (v) “yes,” or “no,” or “not applicable.” If the Indian child's Tribe established a different order of preference by resolution in accordance with 25 U.S.C. 1915(c), the state title IV-E agency must complete paragraph (i)(5)(v) and leave paragraph (i)(5)(i) through (iv) blank.

ACF did not receive comments for changes to our proposal for this paragraph, thus we finalize this data element as proposed. In general, five commenters expressed support for this data element and one commenter supported the element and said they will need to make changes to their electronic case management system to capture information to report this data element. Two commenters opposed this data element, stating that information on placement histories is already reported to AFCARS and this data element does not add “sufficient value” compared to the effort to report it. ACF believes that this data element is a key protection of ICWA (89 FR 13653) and aims to fulfill the statutory requirements of the AFCARS mandate by providing comprehensive national information on the status of adoptive and foster children and their biological and adoptive or foster parents in the foster care program. It also seeks to address the lack of data on AI/AN children. We believe that this data may enable policymakers and researchers to develop more effective polices and support the needs of AI/AN children and their families. Additionally, a commenter stated that the collection of this data may show where resources, training and recruitment efforts might be needed to increase the number of available preferred placement options. Another commenter said that the placement preferences are crucial to keeping families together, and this data may aid in understanding the needs of AI/AN children and tribal communities, and respecting the intent of ICWA. Establishing this requirement will not be duplicative because while placement information is reported in AFCARS at § 1355.44(e), that information is not specifically asking about available placements.

Foster care and pre-adoptive placement preferences under ICWA. In paragraph (i)(6), the state title IV-E agency must report whether each of the Indian child's foster care or pre-adoptive placements (reported in § 1355.44(e)(1)) meet the placement preferences of ICWA at 25 U.S.C. 1915(b) and (c) by indicating with whom the Indian child is placed from a list of six response options: a member of the Indian child's extended family; a foster home licensed, approved, or specified by the Indian child's Tribe; an Indian foster home licensed or approved by an authorized non-Indian licensing authority; an institution for children approved by an Indian Tribe or operated by an Indian organization which has a program suitable to meet the Indian child's needs; placement that complies with the order of preference for foster care or pre-adoptive placements established by an Indian child's Tribe; or placement does not meet ICWA placement preferences.

ACF did not receive comments suggesting changes to our proposal for this paragraph, thus we finalize this data element as proposed. Five commenters expressed support for this data element and one commenter supported the element and said they will need to make changes to their electronic case management system to capture information to report this data element. Two commenters opposed this data element, stating that reporting data related to ICWA placement preference without additional context is not useful when developing policy or program changes and there are multiple factors that determine whether a child is placed within ICWA placement preference or not. ACF believes that this data element is a key protection of ICWA (89 FR 13653) and aims to fulfill the statutory requirements of the AFCARS mandate by providing comprehensive national information on the status of adoptive and foster children and their biological and adoptive foster parents in the foster care program. It also seeks to address the lack of data on AI/AN children. We believe that this data may enable policymakers and researchers to develop more effective polices and support the needs of AI/AN children and their families. A commenter said that collecting information on placement preferences may help ensure that children grow up in culturally appropriate environments that maintain their connections with their families, Tribes, and heritage, provide an understanding around placement preferences, and identify areas for improvement in serving AI/AN children and families, including cross-system collaborations between local and state child welfare agencies and Tribes.

Good cause under ICWA and Basis for good cause, foster care. For placements that do not meet the ICWA placement preferences (reported in paragraph (i)(6)), the state title IV-E agency must report in paragraph (i)(7) whether the court determined by clear and convincing evidence, on the record or in writing, a good cause to depart from the ICWA placement preferences in accordance with 25 U.S.C. 1915(b) or to depart from the placement preferences of the Indian child's Tribe in accordance with 25 U.S.C. 1915(c). If the response is “yes,” then the state title IV-E agency must complete paragraph (i)(8), in which we propose to require that the state title IV-E agency report the state court's basis for determining good cause to depart from the ICWA placement preferences. The state title IV-E agency must indicate “yes” or “no” in each paragraph (i)(8)(i) through (v):

• Request of one or both of the Indian child's parents.

• Request of the Indian child.

• The unavailability of a suitable placement after a determination by the court that a diligent search was conducted to find suitable placements meeting the placement preferences in ICWA at 25 U.S.C. 1915, but none has been located.

• The extraordinary physical, mental, or emotional needs of the Indian child, such as specialized treatment services that may be unavailable in the community where families who meet the placement preferences live.

• The presence of a sibling attachment that can be maintained only through a particular placement.

Comment: In general, five commenters expressed support for this data element and one commenter supported the element and said they will need to make changes to their electronic case management system to capture information to report this data element. Two commenters opposed this data element, stating that reporting data related to ICWA placement preference without additional context is not useful when developing policy or program changes and there are multiple factors that determine whether a child is placed within ICWA placement preference or not.

Response: We believe that this data element is a key protection of ICWA (89 FR 13653) and aims to fulfill the statutory requirements of the AFCARS mandate by providing comprehensive national information on the status of adoptive and foster children and their biological and adoptive foster parents in the foster care program. It also seeks to address the lack of data on AI/AN children. We believe that this data may enable policymakers and researchers to develop more effective polices and support mechanisms tailored to the needs of AI/AN children and their families. A commenter said that gathering data on which of the possible good cause exceptions was relied upon may help states, Tribes, and advocates get a better sense of where they need to focus their efforts to increase the number of preferred placement options.

Comment: One commenter suggested adding data elements on whether a good cause finding was made to deviate from ICWA's placement preferences, the basis of the good cause finding, and how good cause was reached.

Response: We did not add any of the suggested data elements because whether a good cause finding was made and the basis for good cause will already be collected in paragraph (i)(7)-(8) and (12)-(13) of this final rule. In reference to collecting good cause information using a qualitative method of collection, we did not add data elements on that because it is impossible to collect narrative information in AFCARS and for ACF to aggregate such information into national statistics.

Active Efforts. In paragraph (i)(9), the state title IV-E agency must report whether it made active efforts to prevent the breakup of the Indian family in accordance with 25 U.S.C. 1912(d) and 25 CFR 23.2.

Comment: One commenter suggested adding data elements on the details on active efforts, such as whether they were culturally appropriate services and the standard to measure culturally appropriate services.

Response: We did not add these data elements for several reasons as it represents a data collection outside the scope of the NPRM. We understand that it is important to provide culturally appropriate services, however, adding more details for active efforts without much more context would be difficult to interpret and burdensome. Additionally, there is no need or use for this information to be reported to ACF to be aggregated at the national level. This data element only collects information on whether the state provided active efforts (yes or no) and not the types of efforts provided. Therefore, it is not possible to ascertain whether services were culturally responsive or how they were measured because we do not have any measurements for this type of information. Lastly, there is no definition of “culturally appropriate” services outlined in statute or regulations and therefore, no guidelines on how to report such information.

Comment: One commenter suggested adding a definition of active efforts to AFCARS.

Response: We did not make any changes to the final rule. A definition is not needed or necessary because the element cross-references to the citation in the BIA regulations for the definition of “active efforts” (25 CFR 23.2).

Comment: One commenter suggested adding data elements to collect data on the steps that the state title IV-E agency took to make active efforts “using a qualitative method instead of a quantitative method.”

Response: We did not add data elements on this because adding more details for active efforts without much more context would be difficult to interpret and burdensome. Also, it is impossible for AFCARS to collect in AFCARS narrative information and for ACF to aggregate this information into national statistics due to the wide variation in what could be written.

Available ICWA adoptive placements. If the state title IV-E agency indicated the child exited to adoption in § 1355.44(g)(3) Exit reason, the state title IV-E agency must report in paragraph (i)(10) which adoptive placements from a list of four were willing to accept placement of the child. The following four options in paragraphs (i)(10)(i) through (iv) are: a member of the Indian child's extended family; other members of the Indian child's Tribe; other Indian families; a placement that complies with the order of preference placements established by an Indian child's Tribe. If the Indian child's Tribe established a different order of preference by resolution in accordance with 25 U.S.C. 1915(c), the state title IV-E agency must complete paragraph (i)(10)(iv) and leave paragraph (i)(10)(i) through (iii) blank.

ACF did not receive comments suggesting changes to our proposal for this paragraph, thus we finalize this data element as proposed. In general, five commenters expressed support for this data element and one commenter supported the element and said they will need to make changes to their electronic case management system to capture information to report this data element. Two commenters opposed this data element, stating that reporting data related to ICWA placement preference without additional context is not useful when developing policy or program changes and there are multiple factors that determine whether a child is placed within ICWA placement preference or not.

ACF believes that this data element is a key protection of ICWA (89 FR 13653) and aims to fulfill the statutory requirements of the AFCARS mandate by providing comprehensive national information on the status of adoptive and foster children and their biological and adoptive foster parents in the foster care program. It also seeks to address the lack of data on AI/AN children. We believe that this data may enable policymakers and researchers to develop more effective polices and support mechanisms tailored to the needs of AI/AN children and their families. A commenter said that collecting information on placement preferences may help ensure that children grow up in culturally appropriate environments that maintain their connections with their families, Tribes, and heritage, provide an understanding around placement preferences, and identify areas for improvement in serving AI/AN children and families, including cross-system collaborations between local and state child welfare agencies and Tribes.

Adoption placement preferences under ICWA. If the state title IV-E agency indicated the child exited to adoption in § 1355.44(g)(3) Exit reason, the state title IV-E agency must report in paragraph (i)(11) whether the child's adoptive placement meets the adoptive placement preferences of ICWA in 25 U.S.C. 1915(a) or (c) by indicating with whom the Indian child is placed from a list of the following five options: a member of the Indian child's extended family; other members of the Indian child's Tribe; other Indian families; placement that complies with the order of preference for adoptive placements established by an Indian child's Tribe; or placement does not meet ICWA placement preferences.

Comment: In general, five commenters expressed support for this data element and one commenter supported the element and said they will need to make changes to their electronic case management system to capture information to report this data element. Two commenters opposed this data element, stating that information on placement histories is already reported to AFCARS and this data element does not add “sufficient value” compared to the effort to report it.

Response: We believe that this data element is a key protection of ICWA (89 FR 13653) and aims to fulfill the statutory requirements of the AFCARS mandate by providing comprehensive national information on the status of adoptive and foster children and their biological and adoptive foster parents in the foster care program. It also seeks to address the underrepresentation of data on AI/AN children. We believe that this data may enable policymakers and researchers to develop more effective polices and support mechanisms tailored to the needs of AI/AN children and their families. A commenter said that collecting information on placement preferences may help ensure that children grow up in culturally appropriate environments that maintain their connections with their families, Tribes, and heritage, provide an understanding around placement preferences, and identify areas for improvement in serving AI/AN children and families, including cross-system collaborations between local and state child welfare agencies and Tribes.

Comment: One commenter suggested adding data elements on: whether a guardianship or adoption of a child was with a Tribal member, the child's Tribe, other; whether the placement preferences were provided; and whether placement preferences were accommodated.

Response: We did not add any data elements because AFCARS already collects whether the adoptive parent or guardian is a member of an Indian Tribe in § 1355.44(h)(4) and (9). We do not collect the name of a Tribe when a child exits to adoption or guardianship because we do not have a need for this information aggregated at the national level. The data elements on placement preferences in this final rule will provide information on whether the preferences were followed and whether the child was placed for adoption with “a member of the Indian child's extended family,” “other members of the Indian child's Tribe,” or “other Indian families.

Good cause under ICWA and Basis for good cause, adoption. For placements that do not meet the ICWA placement preferences (as reported in paragraph (i)(11)), ACF proposes to require that the state title IV-E agency indicate in paragraph (i)(12) whether the court determined by clear and convincing evidence, on the record or in writing, a good cause to depart from the ICWA placement preferences under 25 U.S.C. 1915(a) or to depart from the placement preferences of the Indian child's Tribe under 25 U.S.C. 1915(c). If the response for paragraph (i)(12) is “yes,” then the state title IV-E agency must complete paragraph (i)(13), in which we propose to require that the state title IV-E agency report the state court's basis for determining good cause to depart from the ICWA placement preferences. The state title IV-E agency must indicate “yes” or “no” in each paragraph (i)(13)(i) through (v):

• Request of one or both of the child's parents.

• Request of the Indian child.

• The unavailability of a suitable placement after a determination by the court that a diligent search was conducted to find suitable placements meeting the adoptive placement preferences in ICWA at 25 U.S.C. 1915, but none has been located.

• The extraordinary physical, mental, or emotional needs of the Indian child, such as specialized treatment services that may be unavailable in the community where families who meet the adoptive placement preferences live.

• The presence of a sibling attachment that can be maintained only through a particular adoptive placement.

Comment: In general, five commenters expressed support for this data element and one commenter supported the element and said they will need to make changes to their electronic case management system to capture information to report this data element. Two commenters opposed this data element, stating that reporting data related to ICWA placement preference without additional context is not useful when developing policy or program changes and there are multiple factors that determine whether a child is placed within ICWA placement preference or not.

Response: We believe that this data element is a key protection of ICWA (89 FR 13653) and aims to fulfill the statutory requirements of the AFCARS mandate by providing comprehensive national information on the status of adoptive and foster children and their biological and adoptive foster parents in the foster care program. It also seeks to address the underrepresentation of data on AI/AN children. We believe that this data may enable policymakers and researchers to develop more effective polices and support mechanisms tailored to the needs of AI/AN children and their families. A commenter said that collecting information on placement preferences may help ensure that children grow up in culturally appropriate environments that maintain their connections with their families, Tribes, and heritage, provide an understanding around placement preferences, and identify areas for improvement in serving AI/AN children and families, including cross-system collaborations between local and state child welfare agencies and Tribes.

Comment: One commenter suggested adding data elements on: whether a good cause finding was made to deviate from ICWA's placement preferences; the basis of the good cause finding; and how good cause was reached using a qualitative data collection method to obtain data that is informative and serves as a foundation for training and support needs, regarding ICWA.

Response: We did not add any data elements because whether a good cause finding was made and the basis for good cause will already be collected in paragraph (i)(7)-(8) and (12)-(13) of this final rule. In reference to collecting good cause information using a qualitative method of collection, ACF did not add data elements as suggested because it is impossible for AFCARS to collect narrative information and for ACF to aggregate this information into national statistics.

The Congressional Review Act (CRA) allows Congress to review major rules issued by Federal agencies before the rules take effect (see 5 U.S.C. 801(a)(1)(A)). The CRA defines a “major rule” as one that has resulted, or is likely to result, in (1) an annual effect on the economy of $100 million or more; (2) a major increase in costs or prices for consumers; individual industries; Federal, State, or local government agencies; or geographic regions; or (3) significant adverse effects on competition, employment, investment, productivity, or innovation, or on the ability of United States-based enterprises to compete with foreign- based enterprises in domestic and export markets (see 5 U.S.C. chapter 8). OMB's Office of Information and Regulatory Affairs has determined that this rule does not meet the criteria set forth in 5 U.S.C. 804(2).

The Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq. ), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, requires) requires Federal agencies to determine, to the extent feasible, a rule's impact on small entities, explore regulatory options for reducing any significant impact on a substantial number of such entities, and explain their regulatory approach. The term “small entities,” as defined in the RFA, comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. HHS considers a rule to have a significant impact on a substantial number of small entities if it has at least a three percent impact on revenue on at least 5 percent of small entities. However, the Secretary certifies, under 5 U.S.C. 605(b), as enacted by the RFA (Pub. L. 96-354), that this rulemaking will not result in a significant impact on a substantial number of small entities. This rule does not affect small entities because it is applicable only to state title IV-E agencies. Therefore, an initial regulatory flexibility analysis is not required for this rule.

The Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4) was enacted to avoid imposing unfunded Federal mandates on state, local, and Tribal governments, or on the private sector. Section 202 of UMRA requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any one year of $100 million in 1995 dollars, updated annually for inflation. In 2024, that threshold is approximately $183 million. This rule does not contain mandates that will impose spending costs on state, local, or Tribal governments in the aggregate, or on the private sector, in excess of the threshold.

Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to determine whether a policy or regulation may negatively affect family well-being. If the agency determines a policy or regulation negatively affects family well-being, then the agency must prepare an impact assessment addressing seven criteria specified in the law. ACF concluded it is not necessary to prepare a family policymaking assessment (see Pub. L. 105-277) because this rule would not have any impact on the autonomy or integrity of the family as an institution.

Executive Order 13132 on Federalism requires that Federal agencies consult with state and local government officials in the development of regulatory policies with Federalism implications. Consistent with Executive Order 13132, ACF solicited comments from state and local government officials on the 2024 NPRM and considered them in finalizing this rule. See sections II through IV of the preamble, where we address the elements of the federalism summary impact statement: the extent of the agency's prior consultation with State and local officials, a summary of the nature of their concerns and the agency's position supporting the need to issue the regulation, and a statement of the extent to which the concerns of State and local officials have been met.

Executive Orders 12866, 13563, and 14094 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 is supplemental to, and reaffirms the principles, structures, and definitions governing regulatory review as established in Executive Order 12866, emphasizing the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Section 3(f) of Executive Order 12866 defines “a significant regulatory action” and was amended by Executive Order 14094 to mean “any regulatory action that is likely to result in a rule that may: (1) have an annual effect on the economy of $200 million or more . . . or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, territorial, or Tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues for which centralized review would meaningfully further the President's priorities, or the principles set forth in the Executive Order, as specifically authorized in a timely manner by the Administrator of OIRA in each case”. A regulatory impact analysis must be prepared for rules determined to be significant regulatory actions within the scope of section 3(f)(1) of Executive Order 12866. ACF consulted OMB and determined that this rule meets the criteria for a significant regulatory action under Executive Order 12866 and was subject to OMB review.

AFCARS is the only comprehensive case-level data set on the incidence and experiences of children who are in out-of-home care under the placement and care of the title IV-E agency or who are under a title IV-E adoption or guardianship assistance agreement. The statute requires that AFCARS provide comprehensive national information with respect to these children. Collecting robust ICWA-related data will provide the major benefit of allowing ACF to better understand the underlying reasons for the disproportionality of AI/AN child involvement in the child welfare system.

Federal reimbursement under title IV-E will be available for a portion of the costs that state title IV-E agencies will incur as a result of the revisions in this rule, depending on each state title IV-E agency's cost allocation plan, information system, and other factors. Estimated costs to the Federal Government are provided below in the Burden estimate section. ACF estimates the Federal portion of the overall information collection costs to be approximately $2,486,304 annually.

Federal agencies must justify the need for regulatory action and consider a range of policy alternatives. We speak to two alternatives that were considered and rejected.

• ACF considered not seeking to expand the ICWA related data elements in AFCARS. An alternative course of action would be to do nothing and leave the requirements at 45 CFR 1355.44 in place because they were streamlined in the 2020 final rule in response to comments solicited at that time. ACF rejected this option because of the reasons described earlier in the final rule. Under this alternative, state title IV-E agencies would continue to report the ICWA-related data required through the 2020 final rule. However, this information would not be robust enough to provide the data on AI/AN children needed to understand their experiences in the foster care system.

• ACF also considered the alternative of implementing a process to monitor ICWA's procedural protections through a case review outside of AFCARS. ACF decided against that approach because we believe that requiring state title IV-E agencies to collect and report information related to the more detailed aspects of ICWA's procedural protections via AFCARS is preferable because it will result in comprehensive national data (§ 479(c)(2) and (3) of the Act (42 U.S.C. 679(c)(2) and (3))). The fact that the statutory penalties for noncompliant AFCARS submissions apply to data under this final rule may incentivize agencies to provide timely and complete data submissions (§ 474(f) of the Act (42 U.S.C. 674)). (Note that agencies are afforded an opportunity to correct and resubmit noncompliant data files, as outlined in 45 CFR 1355.46).

This rule contains information collection requirements (ICRs) that are subject to review by OMB under the Paperwork Reduction Act (PRA) of 1995, 44 U.S.C. 3501-3520. The PRA sought to minimize government-imposed burdens from information collections on the public. In keeping with the notion that government information is an asset, it also is intended to improve the practical utility, quality, and clarity of information collected, maintained, and disclosed. The PRA defines “information” as any statement or estimate of fact or opinion, regardless of form or format, whether numerical, graphic, or narrative form, and whether oral or maintained on paper, electronic, or other media (5 CFR 1320.3(h)). A description of the PRA provisions is given in the following paragraphs with an estimate of the annual burden. To fairly evaluate whether an information collection should be approved by OMB, the Department solicits comment on the following issues:

• The need for the information collection and its usefulness in carrying out the proper functions of our agency.

• The accuracy of our estimate of the information collection burden.

• The quality, utility, and clarity of the information to be collected.

• Recommendations to minimize the information collection burden on the affected public, including automated collection techniques.

Information collection for AFCARS is currently authorized under OMB number 0980-0267. This rule contains information collection requirements in § 1355.44 the Out-Of-Home Care Data File that the Department has submitted to OMB for its review. This final rule requires state title IV-E agencies to report ICWA-related information for children who are in the Out-of-Home Care Reporting Population (§ 1355.42(a)) for the data elements in § 1355.44(b) and (i).

There were few comments made on the burden and costs of the 2024 NPRM and fewer provided estimated burden hours and cost amounts. ACF did not make changes to the burden estimates in this final rule based on this information because there was not enough detailed information to draw any different conclusions than we did in calculating the burden estimates for the 2024 NPRM. OMB did not receive comments in response to the 2024 NPRM. Thus, what follows is a burden estimate for this final rule, using the 2024 NPRM burden estimate since we did not make substantive changes in this final rule. Changes in the final rule estimate are attributed to updated input numbers, such as labor rate, number of children in foster care, and adding several additional data points to be reported.

Eleven commenters (including states, organizations, and one individual) expressed a concern that states will struggle with implementing this final rule, even if they have a CCWIS, and that burden will vary greatly among states depending on the number of ICWA-eligible children in their reporting population, e.g., it is possible that states with large populations may have data collection methods already in place and can more easily adapt to the requirements. Five states said the 2024 NPRM will impose “significant” fiscal, staffing, system changes, and time burden on states. An individual said that the proposal is “an unnecessary recordkeeping . . . cost” to the state. One organization and two states said that child welfare workers are already “overburdened,” and that “data entry . . . would take time away from direct casework.” One state added that while reimbursement may be available under title IV-E to support the activities required for implementation, “ICWA is not a funding source and no additional funding appears to be made available” for implementation and so the proposal is a “burden on state funds to cover state match and for costs associated with foster children that do not meet IV-E eligibility requirements.”

Two states, one Tribe, and one organization expressed support for the 2024 NPRM, saying that the value of the data proposed outweighs the burden and cost of updating systems. Two states said that the additional data is necessary and fulfills unmet data needs. One Tribe and one organization countered arguments for state burdens by saying that if states are practicing “good case management,” then they will have access to court documents. One Tribe added that “although there will be additional efforts and resources required to collect this new data, for over 30 years since the establishment of the AFCARS in 1993, there has been little effort to close this gap in data collection for AI/AN children and families until recently.” One organization also said that due to the “data deficit . . . Native children and families have carried the burden of overrepresentation in child welfare systems, negatively impacting their wellbeing, without data-driven approaches to address the families' needs or to prevent system involvement.”

Three of the nine commenters who expressed concern about burden provided estimates for burden hours and cost amounts and we summarize their input below:

• One commenter said they have eight children receiving foster care services to whom ICWA applies, which is less than 0.13% of their Out-of-Home Care Reporting Population. They estimated total costs for developing and implementing the proposed modifications from the 2024 NPRM to their existing legacy system would be approximately $491,556.30. They explained that this would comprise one-time costs of $419,400.52 and $15,504.08 to verify and adjust existing procedures to comply with the requirements each year after the changes are implemented. They also estimated a cost of $56,651.70 for the tasks associated with staff training and administrative tasks to deploy system updates state-wide. They estimated that it will take approximately 10,396 hours to complete the initial work and 344 hours for ongoing work after the changes are implemented.

• One commenter estimated total initial project costs, including implementation and training, to be $201,751. This comprised 1,200 hours of technical staff time and a cost of $188,400 for development and implementation of CCWIS and AFCARS changes. They estimated total hours for staff for development, testing, implementation, and training is 450 hours for a total cost of $13,351. They estimated ongoing costs for data quality oversight to be $2,967 based on previous projects. Regarding staff time to enter the additional data elements, they estimated burden hours to be 12,952 per year, for a total annual cost of $367,577. They included some estimates for staff labor rates being $26.84 per hour for a Family Services Specialist and $33.00 per hour for a Family Services Specialist Supervisor.

• Another commenter only provided an estimated burden hour amount of cumulatively 687 hours annually collecting and entering the proposed data.

While ACF considered the information provided by these three commenters, information from these few entities cannot be used to change average burden hours/cost across all states, as the burden calculations in this rule follow. However, we used this limited information to see whether the generalized estimates that follow (which are spread across all states and do not account for states of very different sizes and of which, some may have larger populations of children served than others) may be in line with what some states may experience in implementing this final rule. Since these are rough estimates based on the information available to ACF, we believe they are consistent.

Discussion: The following are estimates. ACF estimates the burden and costs associated with this final rule using the estimates from the 2024 NPRM, which used the 2020 final rule as a base by which to estimate the burden of adding the ICWA-related data elements. The 2020 final rule estimates can be seen beginning at 85 FR 28421. This final rule has a narrow focus in that ACF is adding data elements related to ICWA's procedural protections applicable only to state title IV-E agencies. Because ICWA does not apply to Tribal title IV-E agencies, they do not have to report the data elements in this final rule, thus they are not included in this burden estimate.

Respondents: The respondents comprise 52 state title IV-E agencies.

Recordkeeping Burden: Searching data sources, gathering information, and entering the information into the system, developing or modifying procedures and systems to collect, validate, and verify the information and adjusting existing ways to comply with AFCARS requirements (including testing), administrative tasks associated with training personnel on the AFCARS requirements ( e.g., reviewing instructions, developing the training and manuals), and training personnel on AFCARS requirements. ACF understands that actual burden hours and costs will vary due to sophistication and capacity of information systems and availability of staff and financial resources, thus this is an average across states. ACF wants to note that regardless of the size of the state's population of children in out-of-home care to whom ICWA applies, recordkeeping tasks such as training and modifications to case management systems and electronic case files will still need to occur because the state must be prepared to report the applicable AFCARS data elements should a child enter the reporting population.

Reporting burden: Extracting the information for AFCARS reporting and transmitting the information to ACF, which includes modifying, or developing a new data file for reporting.

ACF made several assumptions when calculating the burden and costs. First, we will describe the 2024 NPRM estimates and then describe how the estimates changed for this final rule.

• 2024 NPRM Estimated Burden Hours: The 2024 NPRM burden estimates were used by calculating the increase in data elements proposed over the 2020 final rule.

○ 2024 NPRM Recordkeeping Burden Hours: The 2024 NPRM estimated the total recordkeeping burden to be 48,183 hours annually.

The 2024 NPRM estimated an average 44,875 hours annually for searching data sources, gathering information, and entering the information into the case management system for children who enter foster care. This comprised of 0.20 hours annually for each child who entered foster care for the data elements in § 1355.44(b)(3) through (6) (a 5 percent increase in data points to report for all children who enter foster care) and 0.76 hours annually for the data elements in § 1355.44(i) (a 19 percent increase in data points to report for children to whom ICWA applies). ACF is again using a child's reported race as AI/AN as a proxy for a child to whom ICWA applies. These percentage increases were derived from the increase in reporting over the 2020 final rule, which was 4.02 hours annually for each child who entered foster care for all 2020 final rule data points and 206,812 children who had entered foster care in FY 2022.

The 2024 NPRM estimated 1,608 hours annually for developing or modifying standard operating procedures and IT systems to collect, validate, and verify the information and adjust existing ways to comply with the AFCARS requirements, and testing. This comprises 335 hours annually for the data elements in § 1355.44(b)(3) through (6) (a 5 percent increase in data points to report for all children who enter foster care) and 1,273 hours annually for the data elements in § 1355.44(i) (a 19 percent increase in data points to report for children to whom ICWA applies). The 2020 final rule estimated 6,700 hours for these tasks for all 2020 final rule data points.

The 2024 NPRM estimated 1,621 annual burden hours for modifying IT systems and adjust existing ways to comply with the proposal. This comprises 354 hours annually for the data elements in § 1355.44(b)(3) through (6) (a 5 percent increase in data points to report for all children who enter foster care) and 1,346 hours annually for the data elements in § 1355.44(i) (a 19 percent increase in data points to report for children to whom ICWA applies). Administrative tasks associated with training personnel on the requirements include reviewing instructions and developing training and manuals. ACF understands that training hours will vary depending on the size of the agency's workforce needing training and the current training conducted regarding ICWA, therefore ACF assumes that implementing the data elements here will be incorporated in ongoing training efforts. The 2020 final rule estimated 7,086 hours for all 2020 final rule data points.

○ 2024 NPRM Reporting Burden Hours: The 2024 NPRM estimated the total reporting burden to be 8 hours annually. This comprises 2 hours annually for each child who entered foster care for the data elements in § 1355.44(b)(3) through (6) (a 5 percent increase in data points to report for all children who enter foster care) and 6 hours annually for the data elements in § 1355.44(i) (a 19 percent increase in data points to report for children to whom ICWA applies). Reporting burden is compiling the data file and transmitting to ACF. The 2020 final rule estimated reporting would take 34 hours annually extracting and reporting information for all 2020 final rule data points.

• Number of children in out-of-home care: To determine the number of children for which state title IV-E agencies will have to report the expanded ICWA-related data in the Out-of-Home Care Data File on average, ACF used the most recent FY 2022 AFCARS data available (report #30): 186,602 children entered in foster care during FY 2022. Of those, 4,276 children were reported to have a race of AI/AN. ACF used the number of children who entered foster care rather than the entire population of children in foster care because states will not have to collect and report all data elements on all children in foster care.

• Additional and Revised Data Elements for State Title IV-E Agencies: The current Out-of-Home Care Data File contains 186 data points (see Appendix A of Technical Bulletin #20). ACF proposes to revise or add in the Out-Of-Home Care Data File approximately 49 data points related to state title IV-E agencies reporting the new/revised ICWA-related information. The reason why the number of data points increased is because ACF added a data element in § 1355.44(b)(3)(vii) and added 3 data elements in § 1355.44(i)(1)(iii)(A)-(C). Thus, the percentage increase in reporting over the 2020 final rule represents revisions to the current ICWA-related data elements to expand the information to be reported in § 1355.44(b)(3)-(6), which represents a six percent increase in data points for state title IV-E agencies to report for all children who enter foster care over the 2020 final rule (11 new data points/186 current data points = 0.06). New data points to be added in § 1355.44(i) represents a 20 percent increase in data points for state title IV-E agencies to report for children to whom ICWA applies (38 new data points/186 current data points = 0.20). These percent increases in data points will be used in calculating the reporting and recordkeeping burden for state title IV-E agencies as a result of this final rule. ACF understands from states during the implementation period of the 2020 final rule and comments to the 2024 NPRM that to report the revised/new information related to ICWA, much work will need to be accomplished to examine paper or electronic case notes, court records, court orders, and other documents to locate the needed information and enter it into the case management system. ACF also understands that the burden will vary across jurisdictions, depending on how robust the agency's electronic case management system is and the availability of documents.

• Systems changes: As of May 2023, 46 state title IV-E agencies have declared that they are implementing or intend to implement a Comprehensive Child Welfare Information Systems (CCWIS) (see 45 CFR 1355.50 et seq. for requirements). ACF recognizes that state title IV-E agencies will require revisions to electronic case management systems to meet the requirements proposed in this final rule, regardless of CCWIS status. As more states build CCWIS, ACF anticipates it will lead to more efficiency in reporting. However, ACF understands from the 2024 NPRM that the bulk of the information that would be used to respond to the expanded ICWA-related data collection is located in paper files or court documents.

• Labor rate: ACF assumes that there will be a mix of the following positions working to meet both the one-time and annual requirements of this rule. ACF understands that approximately half of the state title IV-E agencies will utilize a contract to implement IT/case management systems changes to comply with an eventual final rule based on state advance planning documents approved by ACF. To inform this estimate, ACF also reviewed 2023 Bureau of Labor Statistics data for job roles in categories of information technology (IT) and computer programming, administrative, management, caseworkers, subject matter experts, and legal staff and used the average hourly wage for each job role. ACF used the job roles for social services and legal staff who may be employed by the child welfare agency and systems/engineer staff who may be employed by the agency or retained by a contract to build or revise case management systems. The wages are described below.

○ Office and Administrative Support Occupations (43-0000) ( e.g., Administrative Assistants, Data Entry, Legal Secretaries, Government Program Eligibility Interviewers, Information and Record Clerks) at $23.05, Social and Community Service Managers (11-9151) at $40.10, Community and Social Service Operations (21-0000) ( e.g., Social Workers, Child and Family Social Workers, Counselors, Social Service Specialists) at $28.36, Social Workers (21-1020) at $30.23, Child, Family, and School Social Workers (21-2021) at $29.68, and Paralegals and Legal Assistants (23-2011) at $31.95, Computer Information and Systems Managers (11-3021) at $86.88, Computer and Mathematical Occupations (15-0000) ( e.g., computer and information analysts, computer programmers, and database and systems administrators) at $54.39, Information Security Analysts (15-1212) at $59.97, Computer Hardware Engineers (17-2061) at $71.04, Database Administrators (15-1242) at $50.39, Database Architects (15-1243) at $65.88, and Computer Programmers (15-1251) at $51.80. The rounded average labor rate for these wages is $48 and to account for associated overhead costs, ACF doubled this rate, which is $96.

Recordkeeping Burden Estimate for State Title IV-E Agencies: Adding the burden hours estimated in the bullets below produced a total of 51,789 recordkeeping hours annually, as summarized below. As stated earlier in the “Assumptions for Estimates” discussion, the bullet on “Additional and Revised Data Elements for State Title IV-E Agencies” above, ACF estimates that this final rule has an increase in reporting of 6 percent in data points for state title IV-E agencies to report for all children who enter foster care in § 1355.44(b)(3) through (6) (11 new data points/186 current data points = 0.06); and 19 percent in new data points in § 1355.44(i) for state title IV-E agencies to report for children to whom ICWA applies (38 new data points/186 current data points = 0.20).

• ACF estimates that searching data sources, gathering information, and entering the information into the case management system for children who enter foster care would take on average 48,205 hours annually. The 2020 final rule estimated these tasks to be 4.02 hours annually for each child who entered foster care for all 2020 final rule data points. For this final rule, the expanded ICWA-related information to be added in:

○ Section 1355.44(b)(3) through (6) is a 6 percent increase in data points to report for all children who enter foster care (4.02 × 0.06 = 0.24 hours). These data points apply to all children who enter foster care (0.24 hours × 186,602 children = 44,784 hours).

○ Section 1355.44(i) is a 20 percent increase in data points to report for children to whom ICWA applies (4.02 × 0.20 = 0.80 hours). ACF again used a child's reported race as AI/AN as a proxy for a child to whom ICWA applies (0.80 hours × 4,276 children = 3,421 hours).

○ The total estimate of searching/gathering/entering information into the case management system is 48,205 annual burden hours (44,784 + 3,421 = 48,205).

• Developing or modifying standard operating procedures and IT systems to collect, validate, and verify the information and adjust existing ways to comply with the AFCARS requirements, and testing ACF estimates would take 1,742 hours annually. The 2020 final rule estimated 6,700 hours for these tasks for all 2020 final rule data points. For this final rule, the expanded ICWA-related information to be added in:

○ Section 1355.44(b)(3) through (6) is a 6 percent increase in data points to report for all children who enter foster care (6,700 × 0.06 = 402 hours).

○ Section 1355.44(i) is a 20 percent increase in data points to report for children to whom ICWA applies (6,700 × 0.20 = 1,340 annual hours).

○ The total estimate of developing or modifying standard operating procedures and IT systems is 48,205 annual burden hours (402 + 1,340 = 1,742).

• Administrative tasks associated with training personnel on the requirements include reviewing instructions, developing training and manuals and training personnel on the requirements and ACF estimates it will take on average 1,842 annual burden hours. ACF understands that training hours will vary depending on the size of the agency's workforce needing training and the current training conducted regarding ICWA, therefore ACF assumes that implementing the data elements here will be incorporated in ongoing training efforts. The 2020 final rule estimated 7,086 hours for all 2020 final rule data points. For this final rule, the information to be added in:

○ Section 1355.44(b)(3) through (6) is a 6 percent increase in data points to report for all children who enter foster care (7,086 × 0.06 = 425 hours).

○ Section 1355.44(i) is a 20 percent increase in data points to report for children to whom ICWA applies (7,086 × 0.20 = 1,417 hours).

○ The total estimate of administrative tasks associated with training personnel to comply with the final rule is 1,842 annual burden hours (425 + 1,417 = 1,842).

Thus, the total recordkeeping burden estimate is 48,205 hours searching and gathering information + 1,742 hours developing or modifying IT systems + 1,842 hours administrative tasks = 51,789 hours.

Reporting Burden Estimate for State Title IV-E Agencies: ACF estimates that extracting the additional ICWA-related information for AFCARS reporting and transmitting the information to ACF would take on average 9 hours annually for all states. The 2020 final rule estimated reporting would take 34 hours annually extracting and reporting information for all 2020 final rule data points. For this final rule, the expanded ICWA-related information to be added in:

• Section 1355.44(b)(3) through (6) is a 6 percent increase in data points to report for all children who enter foster care (34 × 0.06 = 2 hours).

• Section 1355.44(i) is a 20 percent increase in data points to report for children to whom ICWA applies (34 × 0.20 = 7 hours).

The total estimate of reporting the expanded ICWA related information to comply with the final rule is 9 annual burden hours (2 + 7 = 9).

Federal reimbursement under title IV-E will be available for a portion of the costs that state title IV-E agencies will incur because of the revisions in this final rule and actual costs will vary, depending on each agency's cost allocation, information system, and other factors. ACF estimates that it would cost the Federal government approximately $2,486,304 for reimbursement. For this estimate, ACF used the 50 percent Federal financial participation (FFP) rate thus, we estimate the costs for Federal and non-Federal to be the same.

In the above estimates, ACF acknowledges the following: (1) ACF has used average figures for state title IV-E agencies of very different sizes and of which, some may have larger populations of children served than other agencies, and (2) these are rough estimates of burden and costs based on the information available to ACF.

OMB is required to make a decision concerning the collection of information contained in this regulation between 30 and 60 days after publication of this document in the Federal Register . Therefore, a comment is best assured of having its full effect if OMB receives it within 30 days of publication. Written comments to OMB or the information collection should be sent directly to the following: Office of Management and Budget, either by fax to 202-395-6974 or by email to OIRA_submission@omb.eop.gov. Please mark faxes and emails to the attention of the desk officer for ACF.

Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, requires agencies to consult with Indian Tribes when regulations 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. Similarly, ACF's Tribal Consultation Policy notes that consultation is triggered for a new rule adoption that significantly affects Tribes, meaning the new rule adoption has substantial direct effects on one or more Indian Tribes, on the amount or duration of ACF program funding, on the delivery of ACF programs or services to one or more Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. This final rule does not meet either standard for consultation. Executive Order 13175 does not apply to this final rule because it does not impose any burden or cost on Tribal title IV-E agencies, nor does it impact the relationship or distribution of power between the Federal Government and Indian Tribes. ICWA does not apply to Tribal title IV-E agencies, and therefore, they do not have to report the data elements in this final rule. However, while E.O. 13175 and ACF's Tribal Consultation Policy do not formally apply to this final rule, ACF still sought Tribal input on the 2024 NPRM during the comment period via Tribal consultation.

ACF announced the Tribal consultation in writing via a “Dear Tribal Leader Letter” (DTLL) on March 6, 2024 noting the date, purpose, virtual location, and registration process for consultation. The DTLL was also shared in the publication “News from CB,” via the Children's Bureau (CB), the Resource Center for Tribes, and through CB's program offices and community partners. Tribal Consultation was held via a Zoom webinar on April 3, 2024, at 3:30 p.m. Eastern and there were 55 attendees. During the webinar, CB provided a background and history of regulation development and an overview of the NPRM. ACF invited general comments on the NPRM and comments on the potential benefits and disadvantages of including this data in AFCARS. In general, participants expressed support for the proposal and said that Tribes have advocated for including these data elements for a long time. One participant expressed their view that states do not have a sufficient understanding of the importance of ICWA and as a result, do not work well with Tribes on these issues. The participant felt that the proposed elements will give Tribes data that they can use to communicate with states regarding ICWA and Tribal children who are in the placement and care responsibility of states. A few participants did not provide a specific comment but instead asked questions related to interpreting ICWA's requirements, which are outside the scope of this final rule.

Additionally, prior to publication of the NPRM, the Department addressed collecting ICWA-related information in AFCARS at the Secretary's Tribal Advisory Council (STAC), which is a group of tribal leaders that advises the Secretary on Tribal affairs, meetings in 2022. In September 2022, ACF updated the STAC of ACF's intention to seek revision of AFCARS to propose ICWA-related data elements similar to what was in the 2016 final rule. The members of the STAC have consistently expressed support for restoring ICWA-related data elements to AFCARS.

Meg Sullivan, Principal Deputy Assistant Secretary for the Administration for Children and Families, performing the delegable duties of the Assistant Secretary for Children and Families

For the reasons set forth in the preamble, ACF proposes to amend 45 CFR part 1355 as follows:

This is a summary of the Commission's Report and Order, in IB Docket No. 22-273, FCC 24-70, adopted on September 26, 2024, and released on September 27, 2024. The full text of this document is available at https://www.fcc.gov/document/fcc-unlocks-spectrum-support-advanced-satellite-services-0.

The Regulatory Flexibility Act of 1980, as amended (RFA), requires that an agency prepare a regulatory flexibility analysis for notice and comment rulemakings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” The Commission has prepared an Final Regulatory Flexibility Analysis (FRFA) concerning the potential impact of the rule changes in the Report and Order. The FRFA is set forth in the appendix of the FCC Document https://www.fcc.gov/document/fcc-changes-certain-space-station-regulatory-fees-fy-2024 and a summary is included in the Procedural Matters section below.

The Report and Order does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, the Commission notes that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission previously sought specific comment on how the Commission might further reduce the information collection burdens for small business concerns with fewer than 25 employees. In the Report and Order, the Commission assessed the effects of its adoption of rules implementing the Part 25 licensing and operating provisions and technical requirements. The Commission finds that such requirements are unlikely to directly impact businesses with fewer than 25 employees.

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 Report and Order to Congress and the Government Accountability Office, pursuant to 5 U.S.C. 801(a)(1)(A).

In the Report and Order, the Commission adopts rule changes to permit use of the 17.3-17.8 GHz band by NGSO operators in the FSS in the downlink direction. This action provides a contiguous 1300 MHz of spectrum for NGSO FSS downlink operations, allowing for technologically innovating and enhanced satellite services to the benefit of American consumers. The allocations in the Report and Order align the U.S. Table with the International Table of Allocations to provide a more cohesive global framework for FSS operators and maximize the efficient use of the 17 GHz band spectrum.

The Report and Order specifically permits use of the 17.3-17.7 GHz band for NGSO FSS downlink operations on a co-primary basis with other primary incumbent services operating in the band and on a shared, co-primary basis with GSO space stations. The Commission also permits NGSO FSS downlink use of the 17.7-17.8 GHz band on a co-primary basis with GSO FSS operations and on an unprotected basis with respect to terrestrial fixed services. The Commission accordingly amends the United States Table of Frequency Allocations and 47 CFR part 2 and modifies 47 CFR part 25 to authorize NGSO FSS operations in the 17 GHz band.

In permitting use of the 17 GHz band for NGSO FSS operators, the Report and Order adopts technical rules to facilitate operations between NGSO FSS downlink services and incumbent providers operating in the 17.3-17.8 GHz band. The technical measures adopted in the Report and Order also create a more consistent regulatory framework in the 17 GHz band. Specifically, the Commission requires that NGSO FSS operators comply with the power limits established by the International Telecommunications Union (ITU) applicable to Region 2. The Report and Order adopts the ITU equivalent power flux density (EPFD) limits applicable in the 17.3-17.8 GHz band and power flux density limits (PFD) limits applicable in the 17.7-17.8 GHz band, and further extends both sets of power limits to the entire 17.3-17.8 GHz band to protect incumbent operators.

The Report and Order additionally extends the authorization of individual and blanket-licensed earth stations in the 17.3-17.8 GHz band to include NGSO FSS earth stations. Blanket licenses in the 17.7-17.8 GHz bands will be authorized for operation on an unprotected basis with respect to current and future systems operating in the fixed service. The Report and Order also revises the Commission's rules to include the 17.3-17.7 GHz and 17.7-17.8 GHz bands in list of frequencies available for use by Earth Stations in Motion (ESIMs) communicating with NGSO FSS space stations.

The following standards appear in the amendatory text of this document and were previously approved for the locations in which they appear: 2016 ITU Radio Regulations, Article 21, Section V and Article 22, Section II.

The Table of Frequency Allocations is comprised of the International Table of the ITU Radio Regulations (International Table) and the U.S. Table. In Region 2 of the International Table, the 17.3-17.7 GHz band is allocated to FSS operations (in both uplink (Earth-to-space) and downlink (space-to-Earth) directions and to the broadcasting-satellite service (BSS) on a co-primary basis, as well as to the radiolocation service on a secondary basis. The adjacent 17.7-17.8 GHz band is allocated internationally in ITU Region 2 to the terrestrial fixed service, BSS, and FSS (in both uplink and downlink directions) on a primary basis and to the mobile service on a secondary basis. Prior to the changes adopted in the Report and Order, in the U.S. Table, the 17.3-17.7 GHz band was allocated to the FSS and BSS on a co-primary basis and to the radiolocation services on a secondary basis. Use of the 17.3-17.8 GHz band by BSS and FSS downlink was limited to GSO FSS systems in the U.S. Table. The 17.7-17.8 GHz band was allocated to terrestrial fixed service and FSS (uplink and downlink) on a co-primary basis in the U.S. Table.

The 17.3-17.8 GHz band was historically used for FSS feeder uplinks that transmit programming to Direct Broadcast Satellite (DBS) service GSO space stations, in addition to terrestrial fixed service use of the 17.7-17.8 GHz band. DBS feeder link operations typically involve the use of large, high-gain antennas at a limited number of individually-licensed earth station locations. The DBS service satellites then downlink that video programming directly to consumers in the 12.2-12.7 GHz band. BSS, used as the “17/24 GHz BSS,” provides service downlinks to consumers in the 17.3-17.8 GHz band and is also used for feeder uplinks to DBS space stations, i.e., reverse band operations. The Commission has previously adopted rules to avoid interference between DBS and 17/24 GHz BSS operations, both in-orbit (“space path” interference) and on the ground (“ground path” interference).

On August 3, 2022, the Commission adopted a Report and Order (87 FR 72388, November 25, 2022) ( 17 GHz GSO Order ) to permit use of the 17.3-17.8 GHz band by GSO FSS downlink space stations. In the 17 GHz GSO Order, the Commission permitted FSS downlinks from GSOs to operate in the 17.3-17.7 GHz band on a co-primary basis with other primary services in that band. In addition, the Commission made certain other changes to the U.S. Table to permit GSO FSS downlink operations in the adjacent 17.7-17.8 GHz band and revised the existing primary FSS allocation in the U.S. Table to permit GSO FSS space-to-Earth operations. The 17 GHz GSO Order authorized individually-licensed FSS receiving earth stations to receive FSS emissions from GSOs in the 17.3-17.8 GHz band, subject to coordination methodologies, and to receive FSS emissions from GSOs in the 17.7-17.8 GHz band on an unprotected basis with respect to fixed service operations. The Commission further authorized blanket-licensed receiving FSS earth stations and ESIMs in the 17.3-17.8 GHz band on an unprotected basis. The 17 GHz GSO Order adopted a number of technical rules to both allow for FSS flexibility in the band and prevent harmful interference between GSO FSS downlinks and incumbent operators.

The Commission adopted a Notice of Proposed Rulemaking (87 FR 64750, October 26, 2022) ( 17 GHz NGSO Notice ) along with the 17 GHz GSO Order. The 17 GHz NGSO Notice sought comment on proposals raised in response to the Commission's Notice of Proposed Rulemaking (86 FR 7660, February 1, 2021) ( 17 GHz FSS Notice ), released in August 2020, to permit NGSO FSS downlink operations in both the 17.3-17.7 GHz and 17.7-17.8 GHz bands, similar to the actions taken with regard to GSO FSS operations in the 17 GHz GSO Order.

The 17 GHz NGSO Notice asked for input on specific NGSO FSS spectrum needs to permit NGSO FSS downlink operations in the band and asked commenters to provide supporting technical data and studies to determine whether such an allocation would benefit the public interest while continuing to protect incumbent users. The Commission asked what technical rules would be necessary considering DBS/BSS, GSO FSS, or terrestrial fixed services operations and what rules would need to be adopted or modified to enable effective sharing while protecting these incumbent users in the band. In particular, the Commission asked whether the EPFD limits in the adjacent bands are sufficient to protect DBS/BSS and GSO FSS stations and if there are methods of protection other than EPFD limits that would be applicable. Further, the Commission asked whether the addition of an NGSO allocation would further degrade the reference situation for the DBS stations operating in accordance with the ITU Radio Regulations Appendix 30 plan, and sought input on any domestic or international coordination issues or other technical challenges that should be addressed in coordination.

The 17 GHz NGSO Notice discussed that, after the release of the prior 17 GHz GSO FSS Notice, sharing and compatibility studies were underway to analyze use of the 17 GHz band in preparation for World Radiocommunication Conference 2023 (WRC-23), specifically addressing certain sharing issues and the potential for use of the 17.3-17.7 GHz band by NGSO FSS downlink satellites, along with ESIM operations in the 17.7-18.6 GHz and other bands. Among the decisions adopted for consideration at WRC-23 was Agenda Item 1.19, which contemplated an FSS downlink allocation in the 17 GHz band for both GSO and NGSO in Region 2. The ITU Radio Regulations had previously included an FSS allocation in the 17.7-17.8 GHz band in Region 2, but Agenda Item 1.19 for WRC-23 outlined a new primary allocation to the FSS downlink in the 17.3-17.7 GHz band.

WRC-23 modified the ITU Radio Regulations and added an FSS allocation in 17.3-17.7 GHz FSS downlink for both GSO and NGSO operations in Region 2. WRC-23 extended the Article 22 technical limitations of the ITU Radio Regulations to the 17.3-17.7 GHz band, which requires that NGSO FSS systems operating in accordance with ITU Radio Regulations shall neither cause unacceptable interference to nor claim protection from GSO systems in the FSS and BSS. WRC-23 also adopted modifications to Resolution 85 (REV.WRC-23), revising the application of Article 22 and compliance procedures for its corresponding EPFD limits. In order to receive a “qualified favorable” finding of compliance from the ITU, which is required for NGSO FSS operation under the Commission's rules, NGSO FSS systems must submit a commitment of compliance along with calculations and technical descriptions of the system's Article 22 EPFD compliance using EPFD validation software. The revisions to the International Table and Articles 21 and Article 22 of the Radio Regulations will become effective January 1, 2025.

Comments in response to the 17 GHz NGSO Notice were due on December 27, 2022, and reply comments were due on January 24, 2023. The Commission received seven comments and six reply comments. GSO FSS providers, NGSO FSS providers, and terrestrial fixed service organizations filed comments and reply comments. The Commission also received thirteen ex parte filings from commenters, several of which were received after the close of WRC-23, with parties calling attention to the adopted resolutions for the 17 GHz band. Notably, parties filing post-WRC-23 ex partes agree that the actions taken by WRC-23 provide a foundation for Commission action to facilitate domestic NGSO FSS operations in the 17 GHz and, in fact, resolve specific concerns raised in the earlier comment cycle.

Accordingly, for the reasons discussed in the Report and Order, the Commission permits an NGSO FSS downlink allocation in the 17 GHz band, subject to technical conditions, in furtherance of the Commission's goals of promoting efficient use of the spectrum, competition, and innovation, and providing consumers with access to advanced telecommunications services. In the Report and Order, the Commission first addresses the respective allocations for the 17.3-17.7 GHz and 17.7-17.8 GHz bands, followed by the technical components and conditions adopted specific to NGSO FSS downlink operations.

The Ka-band is used by FSS operators to provide satellite-based broadband access services using high-throughput satellites. After review of the record, in the Report and Order, the Commission adopts modifications to the U.S. Table and non-Federal government footnotes for NGSO FSS downlink transmission in the 17.3-17.8 GHz band to provide a contiguous 1300 MHz of spectrum for NGSO FSS downlink operations. The Commission permits FSS downlinks from NGSO FSS systems to operate in the 17.3-17.8 GHz band on a co-primary basis with GSO FSS operations and on a co-primary basis with other primary services operating in the band. The Commission also permits NGSO FSS receiving earth stations to operate in the 17.7-17.8 GHz band on an unprotected basis with respect to terrestrial fixed service operations. The Commission modifies § 2.106(d)(58)(i) (non-federal government footnote NG58 of the U.S. Table) by removing the prohibition on NGSO FSS downlink operations in the 17.3-17.8 GHz band. The Commission additionally modifies § 2.106(d)(58)(iv) (non-federal government footnote NG58 of the U.S. Table) to authorize NGSO FSS receiving earth stations in the 17.7-17.8 GHz band, subject to the condition that such receiving earth stations must operate on an unprotected basis with respect to non-federal fixed-service stations operating in the band.

The Commission discusses the 17.3-17.7 GHz band and 17.7-17.8 GHz band separately in the following sections.

The 17.3-17.7 GHz band is allocated on a co-primary basis in the U.S. Table to FSS uplink operations (limited to feeder links for the BSS (DBS)), FSS downlink operations and BSS (17/24 GHz BSS). The 17 GHz GSO Order extended use of the band to FSS downlinks, limited to GSO FSS networks, on a co-primary basis with the incumbent users of the band, feeder links for DBS networks, and “reverse band” use for the downlink portion of 17/24 GHz BSS operations. The Commission concluded that FSS downlink communications are technically similar to DBS/BSS communications, and thus permitting GSO FSS operations in the band was in the public interest to use the band more intensively and efficiently while also providing additional downlink capacity for GSO fixed satellite communications.

In the 17 GHz NGSO Notice, the Commission sought comment on its proposal to make the 17.3-17.7 GHz band available for NGSO FSS systems downlink, similar to the actions taken with regard to GSO FSS operations in the 17 GHz GSO Order. The 17 GHz NGSO Notice further sought technical data and studies from commenters to help determine how an NGSO FSS downlink allocation in the band would facilitate efficient NGSO FSS operations, what technical rules would be needed for DBS/BSS, GSO FSS, and terrestrial services, and whether any EPFD or other limits would be needed to protect existing and incumbent operations.

The record in this proceeding supports allocating the 17.3-17.7 GHz band for NGSO FSS downlink operations. Commenters assert that such an allocation is in the public interest because it would establish a contiguous 1300 MHz of spectrum for NGSO FSS services, resulting in more efficient use of the 17 GHz band, increased competition, and increased quality and availability of satellite broadband services, thus helping to close the digital divide. O3b Limited and SES Americom, Inc., Telesat Canada, and WorldVu Satellites, Ltd. (collectively, “the Satellite Companies”) state that this allocation will serve the public interest by mitigating spectrum constraints and affording consumers greater access to satellite-enabled services. Kuiper agrees and further adds that increasing the availability and quality of satellite broadband services will mitigate the disparate impacts on rural and impoverished communities. Kuiper notes that the 17 GHz GSO Order addressed “major technical and practical concerns regarding coexistence between FSS downlinks and incumbent communications, many of which are common to NGSO and GSO systems,” and the Commission concluded that the technical rules adopted were sufficient to prevent interference and promote sharing in the band even without a Region 2 allocation for FSS downlinks. Commenters also note that studies prepared in advance of WRC-23 measuring the feasibility of sharing the 17 GHz band with both FSS GSO and NGSO along with existing incumbent services confirm that NGSO FSS operations are fully compatible with other 17 GHz band services and that existing frameworks are in place to support coexistence among these services.

Some commenters raised concerns with the Commission adopting an NGSO FSS allocation in the 17 GHz band prior to any resolutions adopted at WRC-23, arguing that doing so would be premature and instead recommending that “awaiting international adoption is necessary to remain ‘consistent with Commission precedent.’ ” However, some commenters originally opposed to adopting an FSS allocation acknowledge that, following the adopted WRC-23 Region 2 NGSO FSS downlink allocation in the 17 GHz band, the proposed domestic allocation in the band is in alignment with both international policy and the public interest, but reiterate calls to adopt technical safeguards to protect GSO FSS and BSS operations. Viasat initially argued that NGSO stakeholders' comments failed to establish an adequate basis for allowing NGSO FSS operations in the 17.3-17.8 GHz band, but pointed to the more stringent protections of GSO networks in Article 22 of the ITU Radio Regulations and advocated that a better approach would be for the Commission to factor the outcomes of WRC-23 into its consideration of appropriate technical limits for the 17.3-17.8 GHz band. Viasat more recently asserts that the outcomes of WRC-23 “provide useful input into the Commission's own decision-making process with respect to potential NGSO FSS operations in the 17 GHz band,” and that the actions taken at WRC-23 in fact “provide a basis for subsequent action by the Commission to facilitate domestic NGSO FSS operations within the 17 GHz band.”

Satellite operators further support allocating the 17.3-17.7 GHz band to NGSO FSS downlink operations on a co-primary basis. These commenters argue that a co-primary allocation is justified to support technological satellite innovation and swift deployment of commercially viable services while simultaneously helping to mitigate spectrum constraints. GSO operators oppose a co-primary allocation, instead arguing that the Commission should allocate the 17.3-17.7 GHz band on only either a secondary or unprotected basis to protect GSO FSS and BSS operations and ensure that incumbent GSO operators are not unduly impacted by the addition of NGSO FSS systems in the band. DIRECTV and EchoStar argue that a secondary or unprotected basis, as applicable, is consistent with both ITU Article 22.2 and the Commission's rules requiring NGSO systems to protect GSO systems from interference, and a secondary allocation would ensure that incumbent GSO FSS operations are not unduly impacted or precluded by NGSO systems in the 17 GHz band. NGSO operators, however, assert that GSO FSS systems are presently afforded significant protections under § 25.289 of the Commission's rules and Article 22 of the ITU Radio Regulations, and are also given priority over NGSO FSS in other domestic spectrum band plans, thus bolstering the need for equal status of NGSO and GSO FSS in the 17 GHz band. These commenters argue that a co-primary allocation for downlink spectrum in the 17 GHz would balance the uplink and downlink spectrum available to NGSO FSS systems while encouraging more robust broadband service offering and promoting competition across NGSO, GSO, and terrestrial fixed services to provide more options for connectivity.

The Commission concludes that it would serve the public interest to allocate the 17.3-17.7 GHz band to NGSO FSS downlink operations on a co-primary basis with incumbent services. The Commission finds that NGSO FSS downlinks in the 17 GHz band are compatible with incumbent services, specifically GSO FSS downlinks, feeder links for DBS networks, and “reverse band” use for the downlink portion of 17/24 GHz BSS operations. Further, the Commission finds that the technical measures adopted in the Report and Order, in combination with existing Commission and ITU frameworks requiring NGSO FSS protection of GSO systems and coordination, provide sufficient interference protection to GSO FSS systems. The Commission disagrees with concerns that a co-primary allocation for NGSO FSS system will preclude GSO FSS operators from the 17 GHz band. The Commission concludes that a co-primary allocation for NGSO FSS operations will support the most efficient use of the 17 GHz band spectrum by aligning this allocation with adjacent bands while mandating protection of GSO FSS operators with the technical protections within those bands.

In addition to providing greater bandwidth for services to consumers across the country, this allocation will provide increased communications capability to unserved and underserved areas, help to close the digital divide, and ensure that this valuable spectrum band is used in the most efficient and effective manner. The Commission notes that permitting NGSO FSS downlink services in the 17 GHz band is consistent with the modifications to the International Table and aligning the U.S Table with the International Table will serve the public interest by providing regulatory certainty and consistency with operations in Region 2. Accordingly, the Commission modifies non-Federal government footnote NG58(i) to permit NGSO FSS downlink operations in the 17.3-17.7 GHz band on a co-primary basis by removing the prohibition on NGSO FSS downlink operations in the 17.3-17.8 GHz band.

The International Table allocates the 17.7-17.8 GHz band segment in Region 2 to terrestrial fixed service, FSS in both directions and to BSS on a primary basis, and to the mobile service on a secondary basis. In the United States, the band is allocated to the non-federal terrestrial fixed service and to FSS uplink and downlink operations on a primary basis. The Commission added a limitation in footnote NG58 to the U.S. Table in the 17 GHz FSS Order stating that in the band 17.7-17.8 GHz, earth stations in the fixed-satellite service may be authorized for the reception of GSO FSS emissions, subject to the condition that these earth stations shall not claim protection from transmissions of non-Federal stations in the fixed service that operate in that band.

Commenters supporting NGSO FSS downlink operations in the 17.3-17.7 GHz band generally also support permitting NGSO FSS downlink operations on an unprotected basis vis-à-vis terrestrial fixed services in the 17.7-17.8 GHz band. Terrestrial fixed providers express concerns about extending the sharing of the 17.7-17.8 GHz band to NGSO operations and argue that further technical study is needed to determine whether NGSO operations can operate concurrently with and protect incumbent fixed service operations in the 17.7-17.8 GHz band. AT&T and Verizon argue that the technical studies and data to support an NGSO FSS downlink do not affirmatively prove that NGSO FSS sharing of the 17.7-17.8 GHz band is feasible. However, they propose that should NGSO FSS operations be permitted in the 17.7-17.8 GHz band, the Commission should do so on a secondary and unprotected basis relative to terrestrial fixed service operations. The terrestrial fixed providers also agree with DIRECTV and EchoStar that NGSO constellations should be required to submit a showing that they can share the 17.7-17.8 GHz band without interference.

The Commission finds that permitting NGSO FSS downlink operations in the 17.7-17.8 GHz band is in the public interest. Earth stations receiving in the 17.7-17.8 GHz band are not entitled to protection from the terrestrial fixed service, and NGSO FSS downlink operations therefore will not disrupt the balance between facilitating FSS operations and protecting incumbent use of the 17.7-17.8 GHz band. This action is consistent with the Commission's decision to permit GSO FSS downlink operations on a co-primary basis. Similar to the actions taken with regard to GSO FSS systems, the Commission permits authorization of earth stations receiving transmissions from NGSO FSS space stations in the 17.7-17.8 GHz band on an unprotected basis vis-à-vis the terrestrial fixed service (both existing and future fixed service operations) and on a shared basis with GSO FSS space stations, discussed in the following section. This is consistent with the Commission's goal to use scarce spectrum resources intensely in an efficient and effective manner. The Commission modifies footnote NG58(iv) of the U.S. Table of Allocations for the reasons discussed previously.

In the 17 GHz NGSO Notice, the Commission sought comment on the technical rules needed to protect DBS and BSS, GSO FSS, and terrestrial services should NGSO FSS downlink operations be permitted in the 17 GHz band. The Commission asked whether the current EPFD limits in the adjacent bands are sufficient to protect DBS and BSS stations and GSO FSS stations, or if there are methods of protection other than EPFD limits that would be more effective. The Commission adopts the technical measures and conditions detailed in the Report and Order to facilitate operations between NGSO FSS downlink services and incumbent providers and create a more consistent regulatory framework in the 17.3-17.8 GHz band.

In the 17 GHz GSO Order, the Commission adopted a number of technical rules to prevent harmful interference and facilitate intra-service operations between 17.3-17.8 GHz FSS space stations and inter-service operations between FSS and 17/24 GHz BSS space stations operating in the downlink direction. The Commission extended a number of requirements that were already applicable to 17/24 GHz BSS space stations transmitting in the band to 17.3-17.8 GHz band GSO FSS space stations, with certain modifications. In the Report and Order, the Commission adopts the following modifications to the FSS technical requirements to account for NGSO FSS downlink operations in the 17.3-17.8 GHz band.

Equivalent Power Flux Density Limits. The Commission sought comment in the 17 GHz NGSO Notice on whether the existing EPFD limits in the adjacent 17.8-18.6 GHz bands are sufficient to protect DBS and BSS stations, GSO FSS stations, and terrestrial fixed services in the 17.3-17.8 GHz band, or if there are alternative methods of protection, other than EPFD limits, that would be better applied in the 17.3-17.8 GHz band.

EPFD limits have been established by the ITU Radio Regulations as a technical mechanism to allow NGSO and GSO systems to operate in a compatible manner. There is broad support in the record that BSS and GSO FSS downlink services can be protected through the use of existing EPFD limits in the adjacent 17.8-18.6 GHz band. The Satellite Companies assert that international studies show that NGSO FSS operations are compatible with other 17 GHz band services and support the Commission extending the downlink EPFD limits outlined in Article 22.2 and in Table 22-1B to the 17.3-17.8 GHz band to protect BSS and GSO FSS downlink operations. Kuiper proposes that the Commission extend the current rules requiring compliance with the applicable EPFD limits to the 17 GHz band and agrees that extending the EPFD downlink limits to the 17.3-17.7 GHz band would ensure that NGSO FSS systems do not cause unacceptable interference to BSS networks. Kuiper states this would result in even lower interference levels to BSS receiving earth stations than under the current rules. SpaceX argues that EPFD limits are not necessary to ensure that NGSO FSS systems can operate without causing interference, but proposes that, if the Commission does employ EPFD limits, it should only extend international limits that apply to protect BSS receive stations. GSO FSS operators agree and support extending the ITU EPFD limits adopted at WRC-23. Viasat recommends that the Commission consider adopting EPFD limits for the 17.3-17.8 GHz band, and supports extending the Article 22 EPFD limits to the 17 GHz band in alignment with WRC-23, should the Commission permit NGSO FSS operations in the 17 GHz band. DIRECTV and EchoStar also support applying the EPFD limits in the adjacent 17.8-18.6 GHz band to the 17.3-17.7 GHz band, support extending the EPFD limits to the 17.7-17.8 GHz band, and further propose that the Commission should require NGSO FSS operators to certify EPFD compliance for entire constellations, submit technical data and calculations of EPFD compliance for public review, and obtain a finding of EPFD compliance from either the Commission or the ITU prior to commencing operations.

Section 25.146(a)(2) of the Commission's rules already require that NGSO FSS space stations comply with any EPFD levels in Article 22, Section II, and Resolution 76 of the ITU Radio Regulations. Section 25.289 further requires that NGSO systems must not cause unacceptable interference to, or claim protection from, a GSO FSS or GSO BSS network, and that NGSO FSS operators in compliance with the applicable ITU EPFD limits will be considered to have fulfilled its obligation to protect GSO networks from interference. Article 22.2 requires that NGSO systems not cause unacceptable interference to and, unless otherwise specified, shall not claim protection from GSO networks in the FSS and the BSS operating in accordance with the Radio Regulations. WRC-23 modified footnote 5.517 of the International Table to require that, in Region 2, use of the fixed satellite (space-to-Earth) service in the 17.3-17.8 GHz band shall not cause harmful interference to nor claim protection from assignments in the BSS operating in conformity with the Radio Regulations. In tandem with the FSS downlink allocation in the 17 GHz band, WRC-23 revised Table 22-1B of the Radio Regulations to extend the limits to the EPFD downlink radiated by NGSO FSS systems in the 17.3-17.7 GHz band in Region 2. WRC-23 added an additional provision to Table 22.1B to state that operators of NGSO FSS systems providing service in Region 2 must meet the limits of Table 22-1B in the 17.3-17.7 GHz band with respect to GSO systems in the BSS.

The Commission adopts the ITU EPFD limits for the 17.3-17.7 GHz segment of the 17 GHz band and extend these limits to apply to the 17.7-17.8 GHz band to ensure efficient NGSO FSS downlink operations and sufficient technical protections for incumbent operators throughout the entire 17 GHz band. The Commission accordingly modifies § 25.146(a)(2) of the Commission's rules to state that the ITU EPFD limits that apply to NGSO FSS systems operating in the 17.3-17.7 GHz band shall also apply to NGSO FSS systems operating in the 17.7-17.8 GHz band. The Commission finds that it would serve the public interest to align the domestic EPFD limits with those adopted in the ITU Radio Regulations to provide certainty for NGSO FSS operators while protecting incumbent systems. These limits apply to NGSO operations in Region 2 internationally, and the record in this proceeding supports adoption of the same international EPFD limits domestically. With respect to facilitating NGSO and GSO coordination efforts, the Commission agrees with commenters' assertions that the Commission has frameworks in place for sharing and coordination between NGSO and GSO operators, and the Commission declines to modify such existing frameworks in favor of adopting an additional compliance approval process in this proceeding. As discussed in greater detail in the Report and Order, the Commission permits operators to enter into coordination agreements consistent with the Commission's current framework for NGSO and GSO spectrum sharing.

Downlink Power Limits. The Commission has typically applied downlink power flux density (PFD) limits for space stations transmissions to facilitate both inter-service and intra-service sharing. Under the Commission's rules, NGSO FSS systems operating in the 10.7-30.0 GHz bands are required to comply with applicable ITU PFD limits in Article 21 of the Radio Regulations, but NGSO FSS systems have not been authorized for domestic operation in the 17 GHz band. In the 17 GHz GSO Order, the Commission adopted rules to apply regional PFD limits for GSO FSS space stations in the 17.3-17.7 GHz band to harmonize with the limits applicable to 17/24 GHz BSS systems and to adequately facilitate both inter-service and intra-service sharing. The Commission also clarified that earth stations operating FSS downlinks in the 17.7-17.8 GHz band shall not claim protection from terrestrial fixed service operations in that band, and that the adopted PFD limits will apply vis-à-vis fixed services in the 17.7-17.8 GHz band or adjacent 17.8-18.3 GHz band.

NGSOs assert that taking the same approach to NGSO FSS services is appropriate and supports adopting the ITU PFD limits to protect terrestrial fixed services operating in the 17.7-17.8 GHz segment. The Satellite Companies support relying on the Commission's existing rules requiring NGSO systems to comply with the applicable Article 21 PFD limits and operate on an unprotected basis with respect to fixed services in the band. Mangata similarly suggests extending the same PFD limits adopted for GSO satellite operations to NGSO FSS systems, rather than limit use of the 17 GHz band, and says that while NGSO systems may need to adjust operations to meet these limits, the PFD limits ensure that terrestrial fixed services will not experience harmful interference at equivalent arrival angles. Kuiper supports applying the PFD limit in the 17.7-17.8 GHz band and argues that the Commission has already resolved concerns about potential interference in the 17.3-17.8 GHz band when it adopted the technical framework for GSO FSS operations in the 17 GHz GSO Order, specifically the coordination requirements and PFD limits, which includes an exhaustive record proving that NGSO FSS operations can coexist with other services in the 17 GHz band. Further, Kuiper maintains that NGSO and GSO FSS systems already successfully share the adjacent 17.8-18.3 GHz band with fixed services because of the PFD limits in place. Kuiper explains that, since interference levels would be nearly identical in the 17.7-17.8 GHz band, PFD limits should be adopted for the 17.7-17.8 GHz band as well where utilization by fixed services is even lower than in the adjacent band. SpaceX agrees, and advocates that extending the ITU PFD limits applicable to the 17.7-19.3 GHz band to the 17.3-17.7 GHz band will enable NGSO FSS operators to share the band without causing harmful interference to existing operations while harmonizing the limits for NGSO FSS operations with existing limits for GSO FSS and BSS transmissions. SpaceX further notes that NGSO operators will solely bear any interference impact to fixed operators, not the protected fixed services. GSO operators did not comment on PFD limits in the 17.7-17.8 GHz band.

Kuiper additionally submitted a technical analysis simulating interference from NGSO FSS systems into fixed service systems in the band consistent with methodologies used in ITU Recommendations. Kuiper's dynamic simulations show that the anticipated aggregate interference from combined NGSO FSS systems into fixed services systems is far below the ITU's recommended threshold limits, demonstrating that these systems can coexist with fixed services in the 17.7-17.8 GHz band with little likelihood of interference. Kuiper also cites operational factors that protect fixed service receivers, which combined with the dynamic interference-to-noise analysis, shows compatibility for fixed and NGSO FSS systems to co-exist in the 17.7-17.8 GHz band without risk of harmful interference from current or future NGSO FSS systems. SpaceX supports Kuiper's study showing that the potential for interference from NGSO operations to fixed services is negligible and that the aggregate emissions of NGSO FSS systems will remain well below the statistical interference-to-noise limits specified by the ITU.

Terrestrial fixed service providers AT&T and Verizon oppose applying the current PFD limits, arguing that these limits are outdated and do not account for the increase of NGSO satellite authorizations in recent years or the differences in NGSO compared to GSO operations. They claim that past records showing no interference to fixed services are not a reliable predictor for future interference and instead recommend that further study is needed before permitting shared NGSO FSS use of the 17.7-17.8 GHz band. AT&T and Verizon also submitted a static analysis (FS Interference Analysis) based on calculations of interference-to-noise ratios to demonstrate the potential for aggregate interference into fixed service antennas from present and future NGSO FSS and GSO FSS operations. These providers argue that the FS Interference Analysis shows that the aggregate interference calculation values could exceed the interference-to-noise thresholds adopted by the ITU and the Commission for protecting terrestrial fixed services in other frequency bands and therefore oppose relying on PFD limits to support an NGSO FSS allocation.

The Commission adopts the ITU PFD limits for NGSO FSS operations in the 17 GHz band, applying to the 17.7-17.8 GHz band and extending to the 17.3-17.7 GHz band, and accordingly modify § 25.146(a)(1) of the Commission's rules. The Commission finds the technical studies and dynamic analyses in favor of adopting the current PFD limits more representative of real-world scenarios in demonstrating that the existing PFD limits will facilitate sharing of the 17.7-17.8 GHz band with minimal risk of interference to fixed service operations. The Commission has previously determined that the PFD limits are effective in protecting terrestrial fixed services from interference, considering that satellite and terrestrial services have long co-existed in these bands using PFD limits without issue. This is consistent with the lack of record evidence of interference regarding NGSO FSS systems in the adjacent 17.8-18.6 GHz band, and the Commission find no evidence that would support deviating from the established limits in the 17.7-17.8 GHz band. The Commission additionally notes that the Commission has previously determined that the ITU-R PFD limits in these bands are scalable to NGSO FSS systems, which integrate the number of satellites in a constellation, to more effectively protect fixed service operations.

Adopting internationally consistent power limits simplifies compliance for both GSO and NGSO operators, as NGSO FSS space systems are not typically limited to U.S. systems and must meet this ITU PFD limits outside U.S. territory. Further, the Commission agrees that the PFD limits in the 17 GHz band should be consistent with those applicable to the adjacent 17.8-18.3 GHz band and extend the PFD limits applicable in the 17.7-17.8 GHz band to the 17.3-17.7 GHz band to harmonize the limits for NGSO FSS operations with existing limits for GSO FSS and BSS transmissions and bolster protections for incumbent operators across the entire 17 GHz band.

As discussed previously, receiving NGSO FSS downlinks shall not claim protection from existing and future stations in the fixed service operating in the 17.7-17.8 GHz band and NGSO FSS operations must still comply with the PFD levels detailed in Article 21 of the ITU Radio Regulations. The Commission notes that GSO FSS and the fixed service will share the 17.7-18.3 GHz band with NGSO FSS operating on an unprotected basis, and that the rules should be consistent throughout the adjacent bands. The Commission therefore extends the PFD limits to the 17.3-17.7 GHz segment of the 17 GHz band for NGSO FSS systems. Although the NGSO FSS allocation will be co-primary in the 17.3-17.8 GHz band and subject to the adopted PFD limits, earth stations operating in the FSS downlink in the 17.7-17.8 GHz band shall not claim protection from existing and future terrestrial fixed service operations.

In the 17 GHz GSO Order, the Commission adopted technical requirements applicable to GSO FSS space stations to mitigate space path interference into DBS receivers. In the 17.3-17.8 GHz reverse-band sharing environment, receiving DBS space stations are vulnerable to space path interference from nearby co-frequency 17/24 GHz BSS space station transmissions. The Commission sought comment in the 17 GHz NGSO Notice on any rules that may need to be modified to enable effective sharing with NGSO FSS downlink operations and account for any necessary technical requirements should the Commission permit an NGSO FSS downlink allocation in the 17.3-17.8 GHz band.

EPFD(is) Limits. Similar to the previously-discussed EPFD limits, WRC-23 modified Table 22-3 of Article 22 to extend the application of the inter-satellite equivalent power flux density (EPFD(is)) limits from the adjacent 17.8-18.4 GHz band to apply to the 17.3-17.7 GHz band in Regions 1 and 2. WRC-23 additionally added a new footnote, 22.5F.4 to Table 22-3, which details limits to the EPFD(is) radiated by NGSO systems in the FSS in Region 2 in the 17.3-17.7 GHz band, requiring that NGSOs operating at any orbital position in Region 2 meet the EPFD(is) limits for the 17.3-17.7 GHz band with respect to a receiving space station in the BSS feeder link of Appendix 30A in all three Regions.

Several commenters discussed the existing EPFD(is) limits detailed in the ITU Radio Regulations, now applicable to the 17.3-17.7 GHz band in Region 2, as an effective method to further protect all incumbent operators in the band from NGSO FSS downlink interference in the 17.3-17.8 GHz band. Kuiper suggests that sharing between FSS feeder uplinks for DBS service, GSO FSS operations, and NGSO FSS downlink operations can be facilitated by applying the EPFD(is) limits in the adjacent 17.8-18.4 GHz band and by requiring coordination between certain DBS feeder uplink earth stations with individually licensed NGSO FSS receiving earth stations. Kuiper and the Satellite Companies note that NGSO FSS space stations have already been permitted to operate NGSO FSS downlinks in Region 1 in the 17.3-17.8 GHz band under the ITU Radio Regulations and that space path interference has not occurred at regional boundaries. Kuiper suggests that the Commission can incorporate the same proven solutions that have been applied in other frequencies and regions, like EPFD(is) limits, to successfully manage coexistence between NGSO FSS and incumbent operations in the 17.3-17.8 GHz band. Further, commenters note that NGSO FSS downlinks already share spectrum with receiving DBS space stations in the 17.7-18.4 GHz band and, in Region 1, in the 17.3-17.7 GHz band, and that BSS space stations only receive protection in the 17.8-18.4 GHz band as a result of EPFD(is) limits.

Commenters also agree that the EPFD(is) limits will offer protection to GSO FSS operators, extending beyond protecting DBS feeder links and BSS incumbent services. DIRECTV and EchoStar specifically support extending the EPFD(is) limits in the adjacent band to ensure protection of BSS downlinks and GSO FSS operations, asking the Commission to apply the same EPFD limits applicable to NGSO FSS downlinks and inter-satellite links in the 17 GHz band. Viasat also encouraged the Commission to take action on the 17 GHz band “so long as that action is consistent with the extension by WRC-23 of existing Article 22 EPFD limits to the 17 GHz band.” Kuiper provided technical support to demonstrate the effectiveness of EPFD(is) limits, showing that NGSO FSS operations operating even at the EPFD(is) limit would still be well below the coordination thresholds for DBS feeder links. Kuiper also notes that EPFD(is) limits are based on the received power level at the point of the affected system receiver, making these limits agnostic to specific design and operational parameters, and considering that EPFD(is) limits are designed to apply to EPFD from all space stations in an NGSO FSS system, the ITU is the best body to address space-path interference concerns that may extend across geographic boundaries.

Based on the record, the Commission finds that the ITU EPFD(is) limits applicable to the 17.8-18.3 GHz band are appropriate for operations in the adjacent 17.3-17.8 GHz band to protect incumbent operators in the bands from NGSO FSS downlink interference. The Commission finds that the EPFD(is) limits delineated in Article 22, Table 22-3 of the Radio Regulations will facilitate sharing of the 17 GHz band amongst NGSO FSS downlink operations and incumbent operations while further minimizing the potential for inter-satellite interference caused by NGSO FSS downlinks. The Commission agrees with commenters that the ITU's established EPFD(is) limits are sufficient to protect DBS space stations and BSS receive stations from potential interference, and will mitigate interference concerns of GSO FSS operators. NGSO FSS operators are required to comply with the ITU EPFD(is) limits in both the 17.3-17.7 GHz and 17.7-17.8 GHz band as reflected in the modification to § 25.146(a)(2) of the Commission's rules adopted in the Report and Order.

Off-axis Power Flux Density Coordination Trigger. In the 17 GHz GSO Order, the Commission modified § 25.264(b)(1) and (2) of the rules and extended a PFD trigger of -117 dBW/m 2 /100 kHz, applicable to BSS space station transmissions, to FSS space station transmissions in the band. DIRECTV and EchoStar ask the Commission to adopt the same PFD coordination trigger as adopted in the 17 GHz GSO Order to NGSO FSS transmissions in the 17.3-17.8 GHz band to ensure that GSO FSS and BSS operations are protected from NGSO operations, in addition to the previously-discussed EPFD(is) limits. Kuiper disagrees with this proposal, arguing that applying this same coordination trigger to NGSO FSS systems is redundant and not necessary to protect DBS space stations from NGSO FSS operations because the ITU Radio Regulations already require compliance with EPFD(is) limits to protect feeder links to GSO systems, and that further studies demonstrate that EPFD(is) limits are effective at protecting DBS space stations from interference. Kuiper also notes that NGSO FSS stations have already been permitted to operate downlinks in Region 1 in the International Table and the space-to-space interference path does not exist between regions. The Satellite Companies also disagree, arguing that a PFD coordination trigger is not needed to protect DBS feeder links from space-path interference and that their proposed solution for EPFD(is) limits renders a PFD coordination trigger superfluous.

The Commission concludes that the ITU EPFD(is) limits provide a more stringent standard than a PFD coordination trigger to protect DBS space stations from potential interference via NGSO FSS operations. DIRECTV and EchoStar offer no evidence of interference to GSO FSS and BSS stations or technical studies demonstrating the need for a PFD coordination trigger for NGSO FSS operations and thus the Commission does not see a need to deviate from the existing EPFD(is) limits. Accordingly, the Commission declines to adopt a PFD coordination trigger for NGSO FSS systems and clarifies that the ITU EPFD(is) limits adopted for the 17.3-17.7 GHz band under Article 22 of the Radio Regulations will apply to the full 17.3-17.8 GHz band and will be applicable pursuant to § 25.146(a)(2) of the Commission's rules to protect DBS space stations from potential interference.

Arc Avoidance Angle. DIRECTV and EchoStar, jointly, and Viasat propose that the Commission should establish an effective arc avoidance angle, or an “exclusion zone,” around the GSO arc from NGSO FSS transmissions. Specifically, DIRECTV and EchoStar propose that the Commission require NGSO FSS satellite transmitters to maintain a minimum of 25 dB reduction from maximum equivalent isotropically radiated power (EIRP) in the direction of the GSO arc, arguing that such an exclusion zone is consistent with ITU Recommendations S. 1528. Viasat proposes that NGSO FSS systems operate with a “suitable avoidance angle with respect to the GSO arc” in the 17.3-17.8 GHz band.

Kuiper disagrees, arguing that DIRECTV and EchoStar do not specify what interference concerns this restriction would potentially address, nor do they provide a technical demonstration that such operational restrictions are necessary to prevent harmful interference. Kuiper and SpaceX argue that existing solutions in the 17 GHz band and adjacent bands render this an arc avoidance angle unnecessary, specifically EPFD(is) limits and EPFD protection for BSS services, and offer technical analysis demonstrating that DBS stations and BSS operators are sufficiently protected from NGSO FSS transmissions under the EPFD(is) limits. Kuiper also notes that DIRECTV and EchoStar's proposal fails to account for differences in operational parameters between NGSO systems and would result in inconsistent received power levels at the GSO arc depending on these specific parameters. Further, Kuiper argues that DIRECTV and EchoStar's proposal to allow NGSO FSS applicants to obtain a certification from either the Commission or the ITU of EPFD compliance would be an inefficient use of resources because the ITU will still perform its own analysis to determine compliance and a new compliance framework would unnecessarily delay the deployment of more robust NGSO FSS operations in the 17 GHz band. Either way, Kuiper finds that the ITU is the best body to address any space-path interference concerns, not the Commission.

While arc avoidance angles can be used to address interference, they vary from system to system, and there is not enough technical evidence in the record to support adopting a specific avoidance angle or deviating from the EPFD limits. As the Commission requires in the Report and Order, NGSO FSS operators in the 17 GHz band must comply with applicable ITU EPFD limits, which include arc avoidance angles as part of EPFD compliance. Section 25.289 of the Commission's rules expressly states that if an NGSO FSS licensee is operating in compliance with applicable ITU EPFD limits, the licensee has fulfilled its obligation to not cause unacceptable interference to any GSO network. NGSO FSS applicants are also required to include in each application for service the information required by § 25.146, which includes the ITU EPFD and PFD limits discussed in the Report and Order, in the narrative of the application pursuant to § 25.114(d)(12) of the Commission's rules. As discussed previously, and as supported by Kuiper's ex parte, the Commission concludes that the EPFD(is) limits provide sufficient protection for GSO FSS operators, negating the need for non-system-specific arc avoidance angles. Prior to initiating service, an NGSO FSS operator licensed or holding a market access authorization to operate in the 10.7-30.0 GHz range must receive a “favorable” or “qualified favorable” finding by the ITU Radiocommunication Bureau demonstrating compliance with the applicable ITU EPFD limits, which includes EPFD(is) limits, ensuring that any NGSO FSS operator is in compliance with these international limits prior to operation. The Commission finds that technical conditions adopted in the Report and Order in combination with the existing frameworks to ensure NGSO FSS operators comply with the ITU's established power limits in the 17.3-17.7 GHz and 17.7-17.8 GHz band will protect GSO FSS operations in the 17.3-17.8 GHz band without requiring compliance with a more stringent arc avoidance angle.

The Commission notes that in particular circumstances, NGSO FSS and GSO FSS operators may jointly conclude that compliance with all applicable EPFD limits may not sufficiently protect the specific GSO FSS operations from in-line events, in which case GSO and NGSO FSS operators may coordinate to implement a protective arc avoidance angle. The Commission confirms that GSO FSS and NGSO FSS operators are permitted to enter into coordination agreements to specify a negotiated arc avoidance angle that is more protective than the angle detailed in the ITU EPFD input data files for systems operating in the 17.3-17.8 GHz band.

Additionally, the Commission declines to adopt DIRECTV and EchoStar's proposal to create a process that would allow NGSO FSS operators to obtain a finding of EPFD compliance from the Commission as an alternative to an ITU finding of compliance. The Commission has previously determined that since NGSO FSS operators are required to use the ITU-approved validation software to assess compliance with EPFD limits, the Commission's review would duplicate that performed by the ITU Radio Communication Bureau. The Commission reaches the same conclusion in the Report and Order. Further, there is no record to support adopting a separate compliance framework that would function as an alternative to the ITU process and any such framework for independent Commission review is outside the scope of this proceeding.

In the 17 GHz GSO Order, the Commission adopted technical requirements and coordination procedures to protect 17.3-17.8 GHz band receiving FSS earth stations from ground path interference arising from uplink transmissions from nearby co-frequency DBS feeder link earth stations. The Commission amended § 25.203 of the rules to apply the coordination approach used to facilitate operations between DBS and 17/24 GHz BSS earth stations to FSS earth stations in the entire 17.3-17.8 GHz band, although FSS earth stations would not be entitled to protection from terrestrial fixed service stations in the 17.7-17.8 GHz band. In the 17 GHz GSO Order, the Commission adopted rules to extend interference protection to individually licensed FSS receiving earth stations and facilitate authorization of blanket-licensed FSS earth stations and ESIMs on an unprotected basis in the 17.3-17.8 GHz band.

Individual and Blanket-Licensed Earth Stations and ESIMs. The 17 GHz GSO Order amended § 25.115(e) of the rules to facilitate individual and blanket-licensed FSS earth stations in the 17.3-17.8 GHz band, with blanket licensed earth stations operating on an unprotected basis with respect to feeder links and all receiving FSS earth stations operating on an unprotected basis with respect to the fixed service in the 17.7-17.8 GHz band. The Commission also amended § 25.202 and footnote NG527A to streamline authorization of receiving ESIM earth stations on an unprotected basis in the band, finding that such receiving stations do not pose an interference threat to other services and will not place any undue coordination burden on incumbent operators if they are operating on an unprotected basis.

Commenters in the record voiced support for taking a similar approach in this proceeding and authorizing blanket-licensed earth stations and ESIMs receiving from NGSO FSS systems in the 17 GHz band. Mangata believes that any concerns from fixed services providers about ESIMs receiving in the 17.3-17.8 GHz band are misplaced, noting that there is little difference between an ESIM and fixed FSS terminals with respect to transmission and that the PFD limits will sufficiently protect terrestrial fixed services from potential interference from NGSO transmissions, including receiving ESIMs. Kuiper also supports permitting blanket-licensed earth stations and ESIMs to operate in the 17 GHz band on an unprotected basis, consistent with the approach in the 17 GHz GSO Order. Kuiper asserts that allowing NGSO ESIMs in the band will provide improved connectivity and enhanced vehicle diagnostics in areas that GSO ESIMs may not be able to reach, and that allowing both GSO and NGSO ESIMs will encourage competition and use the available spectrum more intensively. SpaceX also agrees that the Commission can extend the existing technical rules adopted for GSO FSS use to apply to NGSO FSS operations, including allowing blanket licensed earth station and ESIMs operations on an unprotected basis. SpaceX further notes that NGSO ESIMs can help to supplement gaps in service for maritime, airborne, and land operations, and that the Commission has already determined that allowing blanket licensing on an unprotected basis in the band will increase FSS operators' ability to use the band more efficiently for advanced satellite services without risk of interference to other services.

The Commission concluded in the 17 GHz GSO Order that blanket-licensed earth stations and ESIMs operating on an unprotected basis in the 17.3-17.8 GHz band pose no interference threat to other services, nor will they place any undue coordination burden on incumbent operators. The Commission determined that it is in the public interest to allow these operations to increase FSS operators' flexibility to use the band more efficiently for the provisioning of advanced satellite services for the benefit of American consumers. With respect to concerns about the potential for harmful interference to terrestrial fixed services, the Commission found that the risk of interference is minimal and that the technical standards adopted in the 17 GHz GSO Order are sufficient to protect those services irrespective of whether or not blanket-licensed earth stations or ESIMs would be permitted in the band.

The Commission finds that it is in the public interest to take the same approach in this proceeding and accordingly extend the authorization of individual and blanket-licensed earth stations in the 17.3-17.8 GHz band to include NGSO FSS earth stations. The Commission modifies § 25.115(f)(2) of the Commission's rules to permit individual or blanket licensed earth stations in the 17.3-17.8 GHz band by amending the rule to include the 17.3-17.7 GHz band and the 17.7-17.8 GHz band as authorized bands for operation of individual or blanket license applications. Additionally, the Commission clarifies that blanket licensing in the 17.7-17.8 GHz band is on an unprotected basis with respect to current and future systems operating in the fixed service. Section 25.202(a)(10)(iii) of the Commission's rules is also revised to add the “17.3-17.7 GHz (space-to-Earth)” and “17.7-17.8 GHz (space-to-Earth)” frequency bands to the list of frequencies available for use by ESIMs communicating with NGSO FSS space stations. Accordingly, the Commission also modifies § 2.106(d)(527)(vi) (non-Federal government NG527A of the U.S. Table) to reflect this allocation.

In the 17 GHz NGSO Notice, the Commission noted its continuing efforts to advance digital equity for all, including people of color, persons with disabilities, persons who live in rural or Tribal areas, and others who are or have been historically undeserved, marginalized, or adversely affected by persistent poverty or inequality. Specifically, the Commission asked for comment on any equity-related considerations and benefits associated with the proposals included in the 17 GHz NGSO Notice, and how such proposals may promote or inhibit advances in diversity, equity, and inclusion, and accessibility, as well as the scope of the Commission's relevant legal authority.

Several parties commented on how digital equity and inclusion can be advanced with the proposals included in the 17 GHz NGSO Notice. Kuiper asserts that allocating the 17.3-17.8 GHz band to NGSO FSS systems will increase the availability and quality of satellite broadband services, as NGSO FSS systems are well positioned to reach consumers in rural or impoverished areas and can help to mitigate disproportionate impacts of inadequate connectivity in these areas. Additionally, Kuiper notes that opening the band to NGSO FSS will help to bridge the digital divide by allowing for a greater variety of service providers offering more cost-effective broadband offerings to consumers and businesses, thereby creating more accessible and affordable service options and increasing competition for consumers in remote or rural regions. SpaceX asserts that opening the 17 GHz band for NGSO FSS use presents an opportunity to provide critical broadband connectivity to consumers and businesses in all areas of the country with high-capacity, low latency broadband services. The Satellite Companies also note that permitting an NGSO FSS allocation in the 17 GHz band will allow for more efficient and intensive use of the band, in turn allowing consumers greater access to reliable satellite-enabled services in even the most remote locations and will help to meet the growing demands for spectrum resources for advanced, next-generation satellite services. Mangata agrees, asserting that the additional downlink capacity will further the Commission's goals of delivering high-speed broadband to unserved and underserved consumers, businesses, schools, and healthcare facilities.

The Commission agrees with commenters' positions that permitting NGSO FSS downlink operations in the 17 GHz band will provide increased availability of satellite services, resulting in greater and more reliable broadband services to consumers in rural and underserved areas and to all Americans. The Commission also agrees that these efforts to increase connectivity to historically underserved communities are in line with the Commission's mandate under the Communications Act and efforts to comply with Executive Order 13985. With these critical considerations in mind, the actions taken in the Report and Order to authorize NGSO FSS services in the 17 GHz band are aimed at increasing accessibility, supporting technological innovation and competition, and furthering the Commission's goal of increasing connectivity for all consumers.

As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IFRA) was incorporated in the 17 GHz NGSO Notice. The Commission sought written public comment on the proposals in the 17 GHz NGSO Notice, including comment on the IFRA. No comments were received on the IFRA. The Final Regulatory Flexibility Analysis (FRFA) in the Report and Order conforms to the RFA.

The Report and Order allocates spectrum for NGSO FSS downlink operations in the 17.3-17.7 GHz and 17.7-17.8 GHz frequency bands. More specifically, the Commission permits use of the 17.3-17.7 GHz band by NGSO FSS in the space-to-Earth (downlink) direction on a co-primary basis with incumbent services and on a shared, co-primary basis with geostationary satellite orbit space stations. The Commission also permits NGSO FSS downlink use of the 17.7-17.8 GHz on a co-primary basis with GSO FSS downlink operations and permit authorization of receiving FSS receiving earth stations and on a shared basis with respect to GSO FSS downlink operations. In addition, the Report and Order adopts technical standards to prevent harmful interference from NGSO satellites to incumbent service operations, geostationary satellite orbit operations, and terrestrial fixed services operating in the 17 GHz band. The Commission finds that NGSO in the FSS can share the 17 GHz band in an efficient and effective manner with GSO FSS and incumbent terrestrial fixed service without causing harmful interference. The rules adopted in the Report and Order will continue to facilitate the deployment of NGSO FSS systems capable of providing advanced satellite communication services across the nation, promote growth and innovation within the domestic and global space economy, and promote competition among NGSO FSS system operators in the provision of satellite communications services to consumers, as well as continue to advance the Commission's goal of furthering the efficient use of spectrum.

There were no comments filed that specifically addressed the rules and policies in the IFRA.

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.

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 rules adopted in the Report and Order. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.

Satellite Telecommunications. The industry comprises firms “primarily engaged in providing telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.” Satellite telecommunications service providers include satellite and earth station operations. The SBA small business size standard for this industry classifies a business with $44 million or less in annual receipts as small. U.S. Census Bureau data for 2017 show that 275 firms in this industry operated for the entire year. Of this number, 242 firms had revenue of less than $25 million. Additionally, based on Commission data in the 2022 Universal Service Monitoring Report, as of December 31, 2021, there were 65 providers that reported they were engaged in the provision of satellite telecommunications services. Of these providers, the Commission estimates that approximately 42 providers have 1,500 or fewer employes. Consequently, using the SBA's small business size standard, a little more than half of these providers can be considered small entities.

All Other Telecommunications. This industry is comprised of establishments primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Establishments providing internet services or voice over internet protocol (VoIP) services via client-supplied telecommunications connections are also included in this industry. Establishment in this industry do not operate as telecommunications carriers. The SBA small business size standard for this industry classifies firms with annual receipts of $40 million or less as small. U.S. Census Bureau data for 2017 show that there were 1,079 firms in this industry that operated for the entire year. Of those firms, 1,039 had revenue of less than $25 million. Based on this data, the Commission estimates that the majority of “All Other Telecommunications” firms can be considered small.

The Report and Order adopts several rule changes that would affect compliance requirements for entities operating NGSO FSS systems in the 17 GHz band. For example, the Report and Order adopts rules for operations by NGSO FSS operators in the 17.3-17.8 GHz band, including revisions to some existing technical requirements that will now apply to these FSS operations. With regard to compliance costs that could result from requirements adopted in this proceeding, the record does not include the requisite cost analysis or information that would allow the Commission to quantify the costs of compliance for any impacted small entities, including whether it will be necessary for small entities to hire professionals to comply with the adopted rules. In total, the actions in the Report and Order are designed to achieve the Commission's mandate to regulate in the public interest while imposing the lowest necessary burden on all affected parties, including small entities.

The RFA requires an agency to provide, “a description of the steps the agency has taken to minimize the significant economic impact on small entities . . . including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.”

In the Report and Order, the Commission considers whether and how to apply various technical rules to enable NGSO FSS operations to share the 17.3-17.8 GHz band with other services in an efficient and effective manner while protecting other authorized users of the band from harmful interference. This includes consideration, for example, of power levels and other technical considerations, and what information the Commission may need to assess compliance with technical requirements, taking into consideration potential impact on the applicant or operator. As one example, the Commission declines to require submission of additional technical information prior to satellite operation, instead requiring that NGSO FSS applicants submit information that operators will have already prepared and submitted to international bodies for review and certification. The Commission also declines to impose reporting requirements that would require operators to gather or produce any new other data specific to the rules adopted in the Report and Order.

With regard to EPFD limits applicable to the 17.8-18.4 GHz band, the Commission considers and extends the EPFD limits applicable to the 17.8-18.4 GHz band to the adjacent 17.3-17.7 GHz band, and similarly extends these EPFD limits to the 17.7-17.8 GHz band. The Commission agrees with commenters that the existing EPFD limits are sufficient to protect DBS space stations and BSS receive stations from potential interference, and are sufficient to address concerns raised by GSO FSS operators that proposed an exclusion zone angle. Therefore, the Commission declines to adopt additional requirements which could increase the economic impact and burden of compliance with the Report and Order. The Commission also declines to require additional technical showings regarding arc avoidance angle compliance in applications for NGSO licenses which would add an additional component to the application requirements and could increase the burden of compliance. Similarly regarding coordination, consistent with commenters' positions that the Commission has sufficient frameworks in place for sharing and coordination between NGSO and GSO operators, the Commission declines to modify these existing frameworks to add an additional compliance approval process in this proceeding. Overall, the Commission's actions not to impose certain new and/or additional reporting and other requirements will help minimize the economic impact and reduce the compliance burdens for small and other affected licensees.

The Commission will send a copy of the Report and Order, including the FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the Report and Order, including the FRFA, to the Chief Counsel for Advocacy of the SBA.

Accordingly, it is ordered that, pursuant to the authority found in §§ 4(i), 7(a), 303(c), 303(f), 303(g), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 157(a), 303(c), 303(f), 303(g), and 303(r), the Report and Order is hereby adopted.

It is further ordered that the Report and Order, including the rules set forth at Appendix A, shall be effective 30 days after publication in the Federal Register .

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

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

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 2 and 25 as follows:

Why we need to publish a rule. Under the Act (16 U.S.C. 1531 et seq. ), a species warrants listing if it meets the definition of an endangered species (in danger of extinction throughout all or a significant portion of its range) or a threatened species (likely to become 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 swale paintbrush meets the Act's definition of an endangered species; therefore, we are listing it as such. Listing a species as an endangered or threatened species can be completed only by issuing a rule through the Administrative Procedure Act rulemaking process (5 U.S.C. 551 et seq. ).

What this document does. This rule lists the swale paintbrush as an endangered species under the Act.

The basis for our action. Under the Act, we may determine that a species is an endangered or threatened species because of any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We have determined that habitat loss and fragmentation, hydrological alteration, altered fire regimes, effects from intensive grazing pressure, exotic plant invasion, climate change impacts ( i.e., drought and increased cool season temperatures), and the cumulative effects of multiple stressors are threats to the swale paintbrush to the degree that listing it as an endangered species under the Act is warranted. Additionally, future collection risk may have compounding impacts on the species' viability.

Section 4(a)(3) of the Act requires the Secretary of the Interior (Secretary), to the maximum extent prudent and determinable, concurrently with listing designate critical habitat for the species. We have determined that designating critical habitat for the swale paintbrush is not prudent due to the threat of collection and/or vandalism.

Please refer to our June 8, 2023, proposed listing rule (88 FR 37490) for a detailed description of previous Federal actions concerning the swale paintbrush.

A species status assessment (SSA) team prepared an SSA report for the swale paintbrush. The SSA team was composed of Service biologists, in consultation with other species experts. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species.

In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review in listing and recovery actions under the Act, we solicited independent scientific review of the information contained in the swale paintbrush SSA report. As discussed in our June 8, 2023, proposed rule (88 FR 37490), we sent the SSA report to four independent peer reviewers and received two responses. The peer reviews can be found at https://www.regulations.gov at Docket No. FWS-R2-ES-2022-0173. In preparing the proposed rule, we incorporated the results of these reviews, as appropriate, into the SSA report, which is the foundation for the proposed rule and this final rule. A summary of the peer review comments and our responses can be found in the proposed rule (88 FR 37490 at 37491-37492, June 8, 2023).

Based on information we received during the June 8, 2023, proposed rule's public comment period, we made the following changes in this final rule:

(a) We refine our discussion of grazing as a threat under Summary of Biological Status and Threats, below;

(b) We provide additional discussion under Prudency Determination for critical habitat, below, to better convey the risks and consequences of collection events for the species. These additions provide additional support for our not-prudent critical habitat determination; and

(c) We update our list of activities that may qualify as “take” under section 9 of the Act (see Available Conservation Measures, below) to minimize redundant wording.

In the proposed rule published on June 8, 2023 (88 FR 37490), we requested that all interested parties submit written comments on the proposal by August 7, 2023. We also contacted appropriate Federal and State agencies, Tribal entities, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. A newspaper notice inviting general public comment was published in the Hidalgo County Herald. We did not receive any requests for a public hearing. All substantive information we received during the comment period has either been incorporated directly into this final determination or is addressed below.

(1) Comment: Multiple commenters requested that we designate a sufficiently large area of critical habitat—hundreds if not thousands of acres—to obviate the risk of illegal collection and that we designate at least two areas of unoccupied critical habitat in the United States—ideally on Federal or public lands—to serve as reintroduction habitat. They suggested that much of the southern Animas Valley could be assumed to be potential habitat given that species had been documented at a second site, the Cowan Ranch site, in 1993, and the area contains many of the physical or biological features essential for the conservation of the species ( i.e., areas within the elevational range with the same fine-textured soils, vegetative communities, and low-gradient swales).

Our response: As we explain in our response to (2) Comment, below, we maintain that designating occupied areas as critical habitat places increased risk on the swale paintbrush; thus, designating critical habitat for the species is not prudent. Accordingly, we do not think it prudent to designate the area suggested by these commenters.

That said, we acknowledge that there are likely additional areas throughout the Animas Valley that may contain the physical and biological features essential for the conservation of the species. As mentioned in the species' SSA report, we acknowledge that the species may possibly be extant at the Cowan Ranch site, given its similarity of climatic and environmental conditions and land-use history to the Gray Ranch site (Service 2023, pp. 48-49). However, available information that we have on the species' habitat requirements indicates that the swale paintbrush may be more reliant on microhabitat features that are unknown or unmeasured (Service 2023, pp. 99-100).

To aid in the conservation of the species, we have conducted habitat assessments to identify areas of State and Federal lands in the vicinity of the known occupied habitat that might contain additional populations of the species and/or serve as suitable habitat for potential future reintroduction efforts. Multiple searches for suitable habitat on public trust lands—across years and surveyors—have failed to yield additional observations of swale paintbrush or locate habitat comparable to the Gray Ranch site (Roth 2017, pp. 4-6; Service 2024a, entire; Service 2024b, entire). Additionally, surveys within areas of potentially suitable habitat on private land in the vicinity of the known site have not yielded additional populations of the species (Roth 2017, pp. 4-6; Roth 2020, pp. 3, 5).

When designating critical habitat, the Act and our implementing regulations require that we distinguish areas that are occupied by the species from those that are unoccupied by the species at the time of listing. That means that we cannot designate a large tract of the Animas Valley as critical habitat for the swale paintbrush without distinguishing those areas within the designation that are occupied by the species from those areas unoccupied by the species. To claim that the entire designation is “occupied” would stretch that term beyond its reasonable definition and imply that we assume the swale paintbrush is more widely distributed than it is based on the best available information. Therefore, the approach suggested by the commenters would not avoid the publication of relatively precise swale paintbrush locality data, which would put this rare species at risk of illegal collection and/or vandalism events. These risks are explained further below, under Prudency Determination.

(2) Comment: Multiple commenters requested that we reconsider our “not prudent” determination for critical habitat. The commenters suggested that a “not prudent” determination was not defensible for a few reasons. First, one of the commenters suggested that we did not adequately weigh the collection risk against the benefits of critical habitat designation, citing as support the Natural Resources Defense Council v. U.S. Dept. of Interior, 113 F.3d 1121 (9th Cir. 1997) court opinion. Second, multiple commenters stated that there is not a documented collection risk to swale paintbrush or other plant species; the given examples of illegal collection were all from herpetofauna and were all dated examples. Finally, they stated that the plant has little to no commercial value and, thus, does not have as much inherent risk for illegal collection.

Our response: The Act requires the Service to designate critical habitat to the maximum extent prudent and determinable, and we recognize that—while the Act provides some limited flexibility to find that the designation of critical habitat should not be undertaken for a particular species—not-prudent determinations are generally expected to be rare (see 88 FR 40764 at 40768; June 22, 2023, and 89 FR 24300 at 24315-24317; April 5, 2024). Our regulations at 50 CFR 424.12 outline a non-exhaustive list of circumstances in which such designation may not be prudent, including when 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.

In the case that we find the designation of critical habitat would not be prudent, we must state the rationale in our proposed and final rules. While we must provide our rationale, a weighing analysis—such as the one suggested by one of the commenters—is conducted in situations when we are designating critical habitat and considering whether any areas should be excluded from such designation under section 4(b)(2) of the Act; weighing analyses are not a component of a determination of whether designation of critical habitat may not be prudent. This point was noted in the dissenting opinion of the Natural Resources Defense Council v. U.S. Dept. of Interior, 113 F.3d 1121, lawsuit.

In the preamble to both the 2018 proposed rule (83 FR 35193 at 35197, July 25, 2018) and the 2019 final rule (84 FR 45020 at 45040, August 27, 2019) revising the critical habitat regulations at 50 CFR 424.12 that we administer jointly with the National Marine Fisheries Service (collectively referred to as the “Services”), we recognized the confusion surrounding past regulatory language that indicated that it would not be prudent to designate critical habitat when “designation of critical habitat would not be beneficial to the species.” As this phrase has been interpreted in ways that we did not intend, including creating the implication that a balancing analysis was a required component of prudency determinations under the Act, the Services removed the “not be beneficial to the species” language from the regulations in 2019 (84 FR 45020 at 45053, August 27, 2019). In the 2023 proposed rule (88 FR 40764 at 40768 and 40774, June 22, 2023) and the 2024 final rule (89 FR 24300 at 24318; April 5, 2024) to revise the regulations at 50 CFR 424.12, the Services do not propose to reinstate the “not be beneficial to the species” language.

As noted above, under the Act's implementing regulations, we may determine that a critical habitat designation is not prudent if 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 (50 CFR 424.12(a)(1)(i)). This portion of the Act's implementing regulations has remained constant between the 2019 regulatory change (84 FR 45020, August 27, 2019) and the 2024 regulatory change (89 FR 24300; April 5, 2024). As we state in the proposed listing rule for swale paintbrush, effects from illegal collection (removal of plants and damage to habitat) will exacerbate the degree of risk to the known population of swale paintbrush (88 FR 37490 at 37502-37503, June 8, 2023).

In supporting our not-prudent critical habitat determination in the proposed listing rule for swale paintbrush, we outlined both documented instances of harm to similar species in other areas and documented instances of such harm to other species in the same geographic area (88 FR 37490 at 37502-37503, June 8, 2023). Castilleja species may not be as desirable as other plant species ( e.g., orchids, cacti, and carnivorous plants); however, commercial value for Castilleja seed is apparent from online native seed markets. Although we evaluate the exposure likelihood for illegal collection of swale paintbrush to range from unlikely to possible, the severity of consequences is moderate to severe, depending on the intensity of the collection pressure relative to the abundance of plants in a given year. For instance, the estimated abundance of the known population in 2017 may have been as few as two individuals; if collection had occurred within that year, the implications could have been catastrophic to reproductive effort and/or seedbank replenishment. In short, given the limited distribution and abundance of the species, the limited longevity of the plant's seeds in the seedbank and dependence of the species on the seedbank, and the high severity of consequences that increased collection pressure could have on the species and its seedbank, the risks of adverse effects from collection pose a threat to the species.

Since proposing to designate critical habitat involves publicly publishing precise locality information and distinguishing occupied from unoccupied critical habitat units, this risk cannot be mitigated. Therefore, we maintain the determination that it is not prudent to designate critical habitat for swale paintbrush. We added additional discussion pertaining to the risks associated with a critical habitat designation under Prudency Determination, below.

(3) Comment: One commenter suggested that, as an alternative to designating critical habitat, we develop and implement a conservation plan for swale paintbrush sufficient to support a critical habitat exclusion.

Our response: Although there is not a formal conservation plan in place that lists swale paintbrush as a covered species, there are multiple ongoing efforts aimed at benefitting the species, its habitat, or both. Critical habitat designation is one tool in our toolbox for enacting conservation and/or recovery of the species, and the lack of a critical habitat designation does not beget a lack of conservation effort for the species. As part of our survey and monitoring efforts for the swale paintbrush—which were initiated prior to proposing to list this species—we have been working to identify areas of potentially suitable swale paintbrush habitat within the Animas Valley that might contain unknown populations and/or serve as potential reintroduction sites for future conservation or recovery efforts. Additionally, we have worked with the landowners as well as State, nongovernmental, and other Federal agency partners to collect and maintain ex situ seed storage of 77 maternal lines of the species, with 59 lines being maintained at two storage institutions (Service 2023, p. 33). One storage collection is intended for research, grow out, seed increases, and eventual return to the wild; the other collection is intended for long-term back-up storage. Finally, although the swale paintbrush is not listed as a covered species under the Malpai Borderlands Habitat Conservation Plan (HCP), discussed in more detail under Conservation Efforts and Regulatory Mechanisms, below, this plan has the potential to maintain and enhance the grassland ecosystems in which the swale paintbrush occurs (Service 2023, pp. 31-33). Finally, during the June 8, 2023, proposed rule's public comment period, we received information from the landowners stating that they have, and will, continue to avoid grazing near swale paintbrush populations during the plant's active season (Animas Foundation 2023, entire).

Additionally, for a critical habitat exclusion under section 4(b)(2) of the Act, the mechanism through which areas of critical habitat would be excluded from designation based on conservation plans, we must first propose to designate critical habitat. As discussed in other comments, above, and under Prudency Determination, below, we are not proposing to designate critical habitat due to the risk that doing so would exacerbate the degree of risk to the known population by publishing locality information.

(4) Comment: One commenter provided information and suggested that grazing is a more nuanced influential factor for the swale paintbrush than was presented in the June 8, 2023, proposed rule. The commenter also stated that observations from the known population indicate that the species may be reliant on heavy disturbance.

Our response: In this final rule, we add more nuance to the discussion of grazing and disturbance under “Effects of Intensive Grazing,” below. While the swale paintbrush requires canopy gaps that are maintained by periodic disturbance through natural processes ( e.g., hydrological cycles, seasonally appropriate fires, burrowing, cool season grazing), intensive disturbance, such as mechanical tillage, particularly during the active season, is currently a documented threat for Castilleja species (see 62 FR 31740, June 11, 1997; 88 FR 46088 at 46092, July 19, 2023; Service 2023, pp. 53-82). Thus, the best available information does not support that the swale paintbrush is reliant on heavy disturbance, and further research would be needed to assess the use of anthropogenic disturbance for stimulating swale paintbrush emergence and growth.

A thorough review of the taxonomy, life history, and ecology of the swale paintbrush is presented in the SSA report (Service 2023, entire). The swale paintbrush (also known as the glowing Indian paintbrush and the ornate paintbrush) is an annual species of flowering plant in the family Orobanchaceae. There is no taxonomic uncertainty surrounding the validity of swale paintbrush as a species (Egger 2002, pp. 193, 195; Integrated Taxonomic Information System (ITIS) 2022, unpaginated); thus, we recognize swale paintbrush as a valid species and, therefore, a listable entity under the Act.

The swale paintbrush is native to the grassland ecosystems of Hidalgo County, New Mexico, in the United States and to the eastern Sierra Madre Occidental in Chihuahua and Durango in Mexico (McIntosh 1994, pp. 329-330). The species has been historically documented from 13 sites: 2 sites within Hidalgo County, New Mexico; 10 sites in Chihuahua, Mexico; and 1 site in Durango, Mexico. The swale paintbrush was first observed from a site in Chihuahua, Mexico, in 1887, but not discovered in New Mexico until 1993 (Service 2023, pp. 6-11). The swale paintbrush was last observed in Mexico in 1985, and in New Mexico in 2021. Currently, the species is only known to occur at a single site in the Animas Valley of Hidalgo County, New Mexico: the Gray Ranch site. Additional surveys within suitable habitat in the vicinity of known sites have not yielded additional locations for the species (Roth 2017, p. 3; Roth 2020, pp. 5, 7; Service 2024b, entire). The current status of swale paintbrush at the other historical sites is unknown.

Given the species' overall rarity, little is known about the habitat requirements for swale paintbrush. Across the species' historical range, swale paintbrush has been observed in relatively level, seasonally wet grassland habitats at elevations ranging from approximately 1,500-2,300 meters (m) (4,920-7,550 feet (ft)) (Service 2023, pp. 6-20). Species within the genus Castilleja are root hemiparasites, meaning that plant vigor depends on exploitation of host plants for carbon, nitrogen, and other nutrients (Heckard 1962, p. 29). Castilleja plants begin to establish connections with host plant roots (via structures called haustoria) as seedlings (Heckard 1962, p. 28). For the swale paintbrush, alkali sacaton ( Sporobolus airoides ) and blue grama ( Bouteloua gracilis ) are thought to be the primary host plants within the Animas Valley populations.

Swale paintbrush individuals have one or a few erect stems that stand 20-50 centimeters (cm) (7.9-19.7 inches (in)) in height. Plants have oblong leaves with strongly wavy leaf margins, and floral bracts are typically off-white to very pale yellow (New Mexico Rare Plant Technical Council (NMRPTC) 1999, unpaginated), although reddish phases of the plant have been observed within herbarium records. Across the range, aspects of the swale paintbrush's life cycle seem timed to monsoon season precipitation patterns. Plants germinate between April and June, flower between late-May and late-August (coincident with monsoonal rainfall), and set seed in late August through October (NMRPTC 1999, unpaginated). The longevity of swale paintbrush in the seedbank is unknown; however, the longevity of surrogate Castilleja species is up to 5 years in storage and 2 years in the wild (Service 2023, pp. 22-24).

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 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 decision would be the same. 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 species' expected response and the effects of the threats—in light of those actions and conditions that will ameliorate the threats—on an individual, population, and species level. We evaluate each threat and its expected effects on the species, then analyze the cumulative effect of all of the threats on the species as a whole. We also consider the cumulative effect of the threats in light of those actions and conditions that will have positive effects on the species, such as any existing regulatory mechanisms or conservation efforts. The Secretary determines whether the species meets the definition of an “endangered species” or a “threatened species” only after conducting this cumulative analysis and describing the expected effect on the species.

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 U.S. Fish and Wildlife Service and National Marine Fisheries Service (hereafter, the Services) can make reasonably reliable predictions about the threats to the species and the species' responses to those threats. We need not identify the foreseeable future in terms of a specific period of time. We 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 documents the results of our comprehensive biological review of the best scientific and commercial data regarding the status of the species, including an assessment of the potential threats to the species. The SSA report does not represent our decision on whether the species should be 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 swale paintbrush viability, we used the three conservation biology principles of resiliency, redundancy, and representation (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency is the ability of the species to withstand environmental and demographic stochasticity (for example, wet or dry, warm or cold years); redundancy is the ability of the species to withstand catastrophic events (for example, droughts, large pollution events); and representation is the ability of the species to adapt to both near-term and long-term changes in its physical and biological environment (for example, climate conditions, pathogens). In general, species viability will increase with increases in resiliency, redundancy, and representation (Smith et al. 2018, p. 306). Using these principles, we identified the species' ecological requirements for survival and reproduction at the individual, population, and species levels, and described the beneficial and risk factors influencing the species' viability.

The SSA process can be categorized into three sequential stages. 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, which we then used to inform our regulatory decision.

The following is a summary of the key results and conclusions from the SSA report; the full SSA report can be found at Docket No. FWS-R2-ES-2022-0173 on https://www.regulations.gov.

In this discussion, we review the biological condition of the species and its resources, and the threats that influence the species' current and future condition, in order to assess the species' overall viability and the risks to that viability. We note that, by using the SSA framework to guide our analysis of the scientific information documented in the SSA report, we have analyzed the cumulative effects of identified threats and conservation actions on the species. To assess the current and future condition of the species, we evaluate the effects of all the relevant factors that may be influencing the species, including threats and conservation efforts. Because the SSA framework considers not just the presence of the factors, but to what degree they collectively influence risk to the entire species, our assessment integrates the cumulative effects of the factors and replaces a standalone cumulative-effects analysis. For a full description of our analyses, see the swale paintbrush SSA report (Service 2023, entire).

The individual, population-level, and species-level needs of the swale paintbrush are summarized in tables 1 through 3, below. For additional information, please see the SSA report (Service 2023, chapter 2).

The primary factors influencing swale paintbrush viability are habitat loss and fragmentation, hydrological alteration, altered fire regimes, effects from intensive grazing pressure, exotic plant invasion, climate change impacts ( i.e., drought and increased cool season temperatures), and the cumulative effects of multiple stressors. Additionally, future collection risk may have compounding impacts on the species' viability. The majority of information pertaining to these threats is based on the New Mexico portion of the species' range; however, based on visual inspections of aerial imagery and the limited information we have on the historical sites, we estimate that these are rangewide threats to this species. These stressors and their effects to the swale paintbrush are summarized below.

Habitat loss (Factor A) results in mortality of active plants, within-site seedbank loss, reduction in available habitat, overall decline in occupied area and abundance, increased edge effects, and decreased genetic exchange (Oostermeijer 2003, p. 3 and references therein). Edge effects include reduced wildlife use of and travel through habitat (and the associated decrease in genetic exchange through decreased rates of pollinator visitation and/or seed dispersal), reduced infiltration of precipitation, altered surface and subsurface hydrology, increased human activities, and exotic plant invasion (Forman and Alexander 1998, pp. 210, 223; Bhattacharya et al. 2003, p. 37; Raiter et al. 2018, pp. 445-446; Sawyer et al. 2020, p. 934). The combined effects of habitat loss and edge effects can lead to fragmented and small populations that have reduced genetic exchange, which leads to reduced reproductive potential and adaptive capacity (Oostermeijer 2003, p. 1 and reference therein). Major sources of habitat loss and fragmentation within the swale paintbrush's range include land conversion to agriculture and development associated with human habitation and transportation.

The swale paintbrush relies on cool season precipitation, monsoon precipitation, and a suitable surface/subsurface hydrology to complete its life cycle and maintain its seedbank. Thus, this species is sensitive to hydrological alterations (Factor A), such as artificial drought and emergence season inundation. Artificial drought occurs when upslope obstacles to, or diversions of, surface flows starve downslope areas that would have otherwise received those flows (Raiter et al. 2018, pp. 445-446; Roth 2020, p. 5; Nichols and Degginger 2021, entire). One report suggests that disturbance altered local hydrology in the Gray Ranch area, starving previously occupied patches of habitat and rendering them unsuitable for the species (Roth 2020, p. 5). Alternately, downslope obstacles to surface flows may permanently or seasonally flood upslope areas that would have otherwise shed flows to downslope areas. Prolonged inundation causes forb mortality, reducing forb cover and increasing graminoid (grass-like) cover and height (Insausti et al. 1999, pp. 267, 269-271). If inundation interrupts the species' annual life cycle, existing seedbanks may become depleted and/or seedbank replenishment may be thwarted, depending on the timing, intensity, and/or duration of flooding (Insausti et al. 1999, p. 272).

Fire intensity, frequency, and seasonality (Factor A) have direct and indirect influences on swale paintbrush. Swale paintbrush relies heavily on canopy gaps and mineralized soil nutrient inputs for establishment and growth. Fire fosters these conditions and also reduces the cover of woody vegetation. It stimulates the growth of other grasses, including blue grama (which is one of swale paintbrush's host plants), and forbs (which support pollinators and, hence, swale paintbrush pollination) (Johnson 2000, unpaginated; Anderson 2003, unpaginated; Lybbert et al. 2017, p. 1030; Sam 2020, p. 69; Bestelmeyer et al. 2021, p. 181).

Prehistoric fire return intervals in Madrean ecosystems range from 2.5-10 years. Grasslands, a key ecosystem for the swale paintbrush, are more likely to convert to shrublands or woodlands when fire return intervals exceed 10 years. Fire management regimes and grazing intensity (described below) affect fire frequency, and these habitats are sensitive to fire suppression and herbivore removal of fine fuels, which decrease fire frequency and may lead to increased intensity of fires when they do occur (Kaib et al. 1996, pp. 253, 260; Swetnam and Baisan 1996, pp. 23, 25; Brown and Archer 1999, pp. 2393-2394; Poulos et al. 2013, pp. 3-4, 8; NatureServe 2021, unpaginated). Excessive fire frequency, though less likely to occur, may also have detrimental impacts on swale paintbrush populations. For example, alkali sacaton's post-fire recovery time is 2-4 years, and high fire frequency can lower pollinator abundance and diversity (Johnson 2000, unpaginated; Carbone et al. 2019, p. 7). In turn, decreased pollinator abundance and diversity results in decreased pollination rates of swale paintbrush, which then leads to decreased reproduction and seedbank replenishment.

Uncharacteristic fire seasonality is likely to adversely affect swale paintbrush. While a spring fire season is characteristic of the Sierra Madre Occidental and adjacent Madrean ecosystems, a summer fire season is characteristic of the rest of the desert Southwest (Swetnam et al. 2001, pp. 5, 8; Poulos et al. 2013, p. 8). Current natural ignitions for the historical Gray Ranch area are reported to rarely start before the middle of April or after the middle of July (Brown 1998, p. 250). However, fire prescriptions for the Animas Valley area are timed to avoid the breeding seasons of several wildlife species, potentially pushing prescription burns into mid-August, the swale paintbrush's reproductive season (Malpai Borderlands Group (MBG) 2008, pp. 63-116). If fire interrupts the species' annual life cycle, existing seedbanks may become depleted and/or seedbank replenishment may be thwarted.

The swale paintbrush occurs in grasslands that are used for grazing. Cool season grazing and/or other natural processes help to create the canopy gaps that this species needs for establishment (see Species Needs, above). Exclusion of grazing promotes canopy gap closure, especially under circumstances of reduced fire frequency, which results in reduced habitat suitability for the swale paintbrush's germination, establishment, and growth (Service 2023, pp. 22, 28, 51). However, excessive grazing pressure that results in significant canopy loss (Factor A) increases the potential for evaporation, erosion, and nutrient loss (Li et al. 2007, pp. 318, 329-331). These effects can reduce swale paintbrush productivity both directly and indirectly through impacts on the productivity of symbiotic and host species (Pimentel and Kounang 1998, pp. 419-421).

Palatability of species in the genus Castilleja is considered poor for horses, poor to fair for cattle, and fair to good for sheep (New Mexico State University n.d., unpaginated). However, the swale paintbrush's slender stem morphology and erect growth habitat make them vulnerable to trampling by livestock when habitats are grazed during the plant's growing season. If grazing or trampling interrupt the species' annual life cycle, existing seedbanks may become depleted and/or seedbank replenishment may be thwarted, depending on the timing, intensity, and/or duration of the grazing. Winter-spring grazing is least likely to affect the swale paintbrush's survival and reproduction directly. Excessive herbivory during winter-spring could result in shifting the fire season further into the growing season, which could have negative impacts on seedbank replenishment and viability.

Exotic plants (Factor A) can become introduced to, and dispersed within, grassland habitats by the travel of both humans and animals. Invasive exotic plants could reduce the availability of canopy gaps and/or outcompete the swale paintbrush for available gaps, soil moisture, and soil nutrients, potentially both depleting the existing seedbank and reducing seedbank replenishment. Co-occurring noxious plant species also increase the risks of herbicide exposure. For a list of documented introduced species within the Gray Ranch area, see the SSA report (Service 2023, pp. 29-30). Introduced species in the vicinity of historical swale paintbrush sites in Mexico are unknown.

Climate change (Factor E) has the potential to affect all of the following factors: drought (and associated increases in grazing pressure), flood, fire, and vulnerability to exotic plant invasion. The New Mexico sites are classified as an Apacherian-Chihuahuan Semi-Desert Grassland and Steppe ecological system within the U.S. Environmental Protection Agency (EPA) level 3 Madrean Archipelago ecoregion and the EPA level 4 Madrean Basin Grasslands ecoregion. This system is highly vulnerable to future climate changes. The remaining historical collection sites in Mexico are in Chihuahuan Semi-Desert Grassland and Steppe ecological systems within Sierra Madre Occidental ecoregions, which are moderately vulnerable to future climate changes.

Projections for the Cloverdale hydrologic unit code (HUC) 08 watershed predict increasing temperatures and less available soil moisture, which would be akin to prolonged drought. The elevated temperatures and increased aridity projected across the swale paintbrush's historical range render these systems vulnerable to conversion to shrub-steppe (Caracciolo et al. 2016, pp. 2-3; NatureServe 2021, unpaginated). These changes are likely to impact swale paintbrush populations at the northern- and southern-most extents of this species' range, including the verified extant population in New Mexico.

Increased growing season aridity may stress the germination, establishment, growth, and reproduction of swale paintbrush plants, and increased winter temperatures may reduce swale paintbrush's capacity to overcome seed dormancy before seeds in the soil seedbank become nonviable. The combined effects of increased soil seedbank loss and reduced seedbank replenishment lead to smaller population sizes, and, thus, the species would be more susceptible to environmental and demographic stochasticity.

A future threat to the species is the emerging risk of collection (Factor B). Although no illegal collection events of swale paintbrush have been documented, other species within the genus Castilleja are horticulturally desirable. Many Castilleja species are readily available via online companies, and yellow-bracted species, aesthetically similar to the swale paintbrush, are marketed as rare.

Currently, due to the species' rarity and limited distribution and risks of illegal collection to rare species, swale paintbrush locality data below the county level are not publicly available through online databases ( e.g., SEINet, Natural Heritage New Mexico, New Mexico Rare Plants website). If the location of known occupied habitat became publicly available, risk of illegal collection could increase.

There is a history of illegal collection occurring for other species at or within the near vicinity of the Gray Ranch site. These collection efforts targeted the Sonoran Desert toad ( Incilius (=Bufo) alvarius; New Mexico Department of Game and Fish 2020, pp. 78-79), New Mexico ridge-nosed rattlesnake ( Crotalus willardi obscurus; Harris Jr. and Simmons 1975, p. 6; Malpai Borderlands Group 2008, p. 60), and Mexican hog-nosed snake ( Heterodon kennerlyi; Medina 2021, pers. comm.). For the New Mexico ridge-nosed rattlesnake specifically, collection over the period of 1961-1974 may have resulted in the loss of 130 individuals from the population (Service 2008, p. 37), and researchers encountered 15 illegal collectors from six States during a single season (Harris Jr. and Simmons 1975, p. 6). The swale paintbrush is easier to detect and collect than these mobile, camouflaged species. Thus, given the desirability of paintbrush species for horticultural use, the increased desirability of rare species, the inability of this species to evade detection and collection, and the history of illegal collection in the vicinity of the Gray Ranch, illegal collection is a potential future emerging threat for this species, especially if the location of known occupied habitat becomes publicly available. Further, given the small known extant range and population size of the swale paintbrush, its annual duration and reliance on frequent seedbank replenishment, and risks to its seedbank from stochastic events and other ongoing threats to the species, effects from collection (removal of plants and damage to habitat) would be deleterious and potentially catastrophic to the swale paintbrush.

In summary, swale paintbrush is likely adapted to withstand stochastic stressor events individually and intermittently. However, the increased intensity of, the increased frequency of, the co-occurrence or consecutive occurrence of, and the synergistic effects between stochastic stressor events increase the risks to this species. Given the swale paintbrush's annual duration, reliance on frequent seedbank replenishment, and low seed longevity, as few as 2 consecutive years of adverse environmental conditions or human-caused or natural adverse stochastic events could have catastrophic consequences for this species.

The swale paintbrush was historically documented from 13 sites in the United States and Mexico: 2 sites in the Animas Valley of Hidalgo County, New Mexico, and 11 sites in the eastern Sierra Madre Occidental of Chihuahua and northern Durango in Mexico. Currently, only one known occupied site—the Gray Ranch site—exists within the Animas Valley of Hidalgo County, New Mexico, and the species was last observed at this site in 2021. The last observations of historical sites were in 1993 in New Mexico, and in 1985 in Mexico.

We assessed the swale paintbrush's current condition using a two-pronged approach. First, for all known occupied and historically collected swale paintbrush sites, we derived the amount and intensity of disturbed area and currently protected areas within the vicinity of each site using aerial imagery from the period of 2000 to 2020. Then, we used these data to estimate the possibility of swale paintbrush occupancy within the vicinity of the historical location and assigned each site into one of four categories: (1) known extant, (2) possibly extant, (3) possibly extirpated, and (4) presumed extirpated. Known extant means that the population has been observed within the last decade. Possibly extant means that the site is only known from herbarium records but has a reasonable potential for rediscovery; evidence of habitat loss or degradation is not substantial enough to presume complete loss of swale paintbrush habitat since the time of collection. Possibly extirpated means that the population is known only from herbarium records and has a low potential for rediscovery; evidence of habitat loss or degradation is substantial enough that loss of the species at the site is possible. Presumed extirpated means that the population is only known from herbarium records and has a very low potential for rediscovery; evidence of habitat loss or alteration is significant enough to presume complete loss of suitable habitat since the time of collection.

Second, we conducted a more detailed assessment of the resiliency for the known occupied site at the Gray Ranch in the Animas Valley. Briefly, we considered the demographic factors (population abundance, occupied area, and count of patches within the last 2 years) and habitat factors (surface disturbance, herbicide exposure, fire regime, grazing regime, inundation seasonality, growing season canopy cover, and precipitation history). We assigned each factor into three condition categories; (1) high (factor values that are compatible with stable to increasing populations); (2) moderate (factor values that contribute to minimal rates of decline), or (3) low (factor values that contribute to high rates of decline). Our methodology and evaluations of viability are described in more detail in the swale paintbrush SSA report (Service 2023, chapter 4).

Based on our assessment of the swale paintbrush's current conditions across all sites, one site (the Gray Ranch site) is known extant, four sites ranked as possibly extant, six sites ranked as possibly extirpated, and two sites ranked as presumed extirpated. Of the four possibly extant sites, swale paintbrush plants were last observed at the sites in 1899, 1903, 1979, and 1993. Although potentially suitable habitat may remain at some of the historical sites, particularly the four possibly extant sites, the size and abundance ( i.e., resiliency) of the historical sites are unknown, and we cannot reasonably assume anything about the status of the species at these sites. Thus, the swale paintbrush has no verifiable redundancy and very limited representation throughout its known range.

Based on our detailed assessment of current condition, the swale paintbrush has moderate to high resiliency at the Gray Ranch site. The most recent survey in September 2021 documented a minimum abundance of 6,000 plants—higher than our range of provisional minimum viable population sizes (1,500-5,000 plants)—distributed across 2 patches and 11 hectares (28 acres) of habitat in the Animas Valley. Generally, the site has moderate amounts of surface disturbance that would have limited influence on pollinator visitation rates. There has been no recent herbicide exposure within 300 meters (984 feet) of swale paintbrush patches within the last 15 years. Grazing during the species' active season within recent years has been avoided, and the disturbance regime (fire return intervals, inundation seasonality, grazing regime) combined with the recent precipitation history, have maintained favorable canopy cover that allows for the swale paintbrush's growth, establishment, and recent seedbank replenishment within the core of the population area.

Although the Gray Ranch site is considered to have moderate to high resiliency currently, the small area that the species is known to occupy increases its risk of extirpation due to catastrophic events. The swale paintbrush is at risk of impacts from the cumulative impacts of multiple stressors because it is an annual species with a provisional seedbank viability of 2 years in the wild and frequent replenishment of the seedbank is essential to population persistence. Replenishment of the seedbank with viable seeds requires flower production, successful pollination, and ovule maturation, all of which are impacted by stochastic and catastrophic events such as: habitat loss and fragmentation (Factor A), hydrological alteration (Factor A), altered fire regimes (Factor A), effects from intensive grazing pressure (Factor A), exotic plant invasion (Factor A), climate change impacts ( i.e., drought and increased cool season temperatures; Factor E), and the cumulative effects of multiple stressors. Additionally, future collection risk (Factor B) may have compounding impacts on the species' viability.

Drought is the primary threat to the species, as increased frequency, intensity, and/or duration of drought can lead to decreased swale paintbrush survival through direct ( e.g., drought stress, trampling, or herbivory) and indirect ( e.g., increased grazing pressure within the habitat, increased fire risk, delayed post-fire recovery) mortality. Although grazing and fires help maintain canopy gaps, grazing and/or fires during the growing season can result in decreased swale paintbrush survival. Currently, grazing during the growing season is generally avoided at the Gray Ranch site; however, this site is used as a grass-banking pasture and may experience increased grazing pressure during times of drought. Grazing during the active season can result in trampling and mortality of the species. Fires during the growing season result in swale paintbrush mortality and, depending on the duration and intensity of the fire, prolonged recovery times for native vegetation. Decreased recovery times leave soils vulnerable to evaporation, erosion, nutrient loss, and invasive species establishment, all of which lead to decreased swale paintbrush survival.

Taken altogether, the swale paintbrush has moderate to high resiliency within 1 population and unknown resiliency across the other 12 historical sites. Although our analysis reflects our best assessment of the current conditions of disturbance at or in the vicinity of our estimates of historical site locations, the status of historically collected sites at Cowan Ranch of the Animas Valley and in the eastern Sierra Madre Occidental of Mexico is unknown. Rangewide, specimens were collected from 1887-2021, with the most recent record from Mexico being collected in 1985. Additionally, outside of the known extant New Mexico site (the Gray Ranch site), there have been no reported estimates of abundance with the exception of qualitative reports of “occasional” for the distribution at the Keil 13388 site and “few plants” for Palmer 320 (Palmer 1906, unpaginated; Keil 1978, unpaginated; Service 2023, p. 19). Thus, we cannot reasonably conclude anything about the health or resiliency of any site except for the Gray Ranch site. Accordingly, the swale paintbrush has limited to no redundancy, depending on the status of the species at the historical sites. Even if the swale paintbrush remains extant at sites outside of Gray Ranch, the majority of sites are isolated, and there is limited potential for interpopulation rescue in the event of local extirpations. Finally, the swale paintbrush has limited representation. The Gray Ranch site exists at the northern periphery of the species' range and reflects only a small portion of the historical genetic and ecological diversity of the species.

As part of the SSA, we also developed future condition scenarios to capture the range of uncertainties regarding future threats and the projected responses by the swale paintbrush. Our future condition assessments considered the projected impacts of increased habitat disturbance and climate changes across the swale paintbrush's historical range. Specifically, we considered the upper and lower bounds of plausible impacts of environmental variables related to aridity during the growing and reproductive seasons and seed chilling and cold stratification during the cool season. Because we determined that the current condition of the swale paintbrush is consistent with an endangered species (see Determination of Swale Paintbrush's Status, below), we are not presenting the results of the future scenarios in this rule. Please refer to the SSA report (Service 2023, chapter 5) for the full analysis of future scenarios.

Below is a brief description of conservation measures and regulatory mechanisms currently in place. Please see the SSA report for a more detailed description (Service 2023, chapter 3).

The swale paintbrush is listed as an endangered species by the State of New Mexico. In New Mexico, the swale paintbrush exists on lands managed for livestock production in an ecologically responsible manner by the Animas Foundation (Brown 1998, p. 248). The Nature Conservancy (TNC), the former landowners of the Gray Ranch site, retains a conservation easement prohibiting development on the lands formerly known as the Gray Ranch (TNC 2022, unpaginated). While the easement does not ensure that range improvements will avoid adverse effects to the swale paintbrush, it ensures that the covered areas will remain open space.

The Animas Foundation is a member of the Malpai Borderlands Group, a private, nonprofit organization that is dedicated to maintaining or increasing rangeland health and the viability of traditional livelihoods that maintain rangelands as open space (Malpai Borderlands Group 1994, p. 2; Brown 1998, p. 249; Malpai Borderlands Group 2008, pp. 1-2). Malpai Borderlands Group activities related to use, maintenance, and enhancement of rangelands fall within the scope of a habitat conservation plan (HCP) for all privately owned and State-trust rangelands in the Malpai Borderlands of Southern Arizona and New Mexico. Although the swale paintbrush is not a covered species under this plan, the species may benefit from the plan's covered activities and associated conservation measures (Service 2023, pp. 35-36, table 3-1). These covered activities and associated conservation measures have the potential to maintain and enhance swale paintbrush habitat by restoring fire, minimizing erosion, and controlling invasive and exotic plant species. The Animas Foundation's participation in the HCP, beyond the grassbanking program, is unknown.

Finally, we have partnered with the Animas Foundation, the State of New Mexico, and Albuquerque Bio Park to conduct and maintain ex situ seed collections of the swale paintbrush from the Gray Ranch site. Currently, 77 maternal lines have been collected and retained in offsite storage institutions for germination studies, grow out, seed increase, and potential reintroduction efforts.

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.

After evaluating threats to the species and assessing the cumulative effect of the threats under the Act's section 4(a)(1) factors, we found that the swale paintbrush's distribution has declined from historical conditions. The swale paintbrush was documented from 13 sites historically: 2 sites in the Animas Valley of Hidalgo County, New Mexico, and 11 sites in the eastern Sierra Madre Occidental of Chihuahua and northern Durango in Mexico. Of the 13 historical sites, only 1 site—the Gray Ranch site within the Animas Valley of Hidalgo County, New Mexico—is currently known to be extant. Swale paintbrush plants were last observed at the Gray Ranch site in September of 2021, with a minimum abundance of 6,000 plants distributed across 11 hectares (28 acres) of habitat. Of the 12 other historical sites, our analyses found that four sites ranked as “possibly extant,” six sites ranked as “possibly extirpated,” and two sites ranked as “presumed extirpated.” Although potentially suitable habitat may remain at some of the historical sites, the size and abundance ( i.e., resiliency) of the historical sites is unknown, and we do not have information that these sites are resilient, stable, or able to contribute to the viability of the species.

Although the Gray Ranch site is considered to have moderate to high resiliency currently—based on the most recent abundance estimate exceeding the minimum viable population size and habitat conditions of the Animas Valley being generally favorable—the small area that the species is known to occupy increases its risk of extirpation due to catastrophic events. The swale paintbrush is at risk from the cumulative impacts of multiple stressors because it is an annual species with a provisional seedbank viability of 2 years and frequent replenishment of the seedbank is essential to population persistence. Replenishing the seedbank with viable seeds requires flower production, successful pollination, and ovule maturation, all of which are impacted by stochastic and catastrophic events such as habitat loss and fragmentation (Factor A), hydrological alteration (Factor A), altered fire regimes (Factor A), effects from intensive grazing pressure (Factor A), exotic plant invasion (Factor A), climate change impacts ( i.e., drought and increased cool season temperatures; Factor E), and the cumulative effects of multiple stressors. Additionally, future collection risk (Factor B) may have compounding impacts on the species' viability.

Drought is the primary threat to the species, as increased frequency, intensity, and/or duration of drought can lead to decreased swale paintbrush survival through direct and indirect mortality. Although grazing and fires can help maintain canopy gaps, grazing and/or fires during the growing season can result in decreased swale paintbrush survival. Currently, grazing during the growing season is avoided at the Gray Ranch site; however, this site is used as a grass-banking pasture and may experience increased grazing pressure during times of drought. Grazing during the active season can result in trampling and mortality of the species. Fires during the growing season result in swale paintbrush mortality and, depending on the duration and intensity of the fire, prolonged recovery times for native vegetation. Decreased recovery times leave soils vulnerable to evaporation, erosion, nutrient loss, and invasive species establishment, all of which lead to decreased swale paintbrush survival. Thus, decreased swale paintbrush survival results in decreased seedbank replenishment and, by extension, decreased seedbank viability, which increases the species' risk of extinction.

Overall, the swale paintbrush has limited viability due to its limited resiliency, lack of redundancy, and limited representation at the species level. The species currently occurs at a single site at the northern periphery of its known historical range and is vulnerable to the impacts of catastrophic events. Given its limited distribution, the species likely reflects only a small portion of its historical genetic and ecological diversity; thus, the swale paintbrush has limited capacity to adapt to long-term environmental changes ( i.e., limited representation). Even if the swale paintbrush is extant at sites outside of the Gray Ranch, the majority of these potentially extant historical sites are isolated, and, therefore, there is limited potential for interpopulation rescue in the event of local extirpations.

Accordingly, we find that the swale paintbrush is presently in danger of extinction throughout all of its range based on small population size and the species' risk from a number of contemporary threats. The risk of extinction is high due to a small population with no known potential for recolonization from nearby sources (no redundancy) and the species having limited viability within the seedbank. We do not find that a threatened status is warranted for the swale paintbrush because the species occupies a small geographic range that is currently vulnerable to stressors with the potential for catastrophic synergistic consequences. Thus, the species' limited resiliency, lack of redundancy, and limited representation currently place the species in danger of extinction, and these contemporary threats are only projected to increase in frequency, severity, extent, and/or duration into the future.

Thus, after assessing the best available information, we determine that the swale paintbrush is in danger of extinction throughout all of its range.

Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so within the foreseeable future throughout all or a significant portion of its range. We have determined that the swale paintbrush is in danger of extinction throughout all of its range and accordingly did not undertake an analysis of any significant portions of its range. Because the swale paintbrush warrants listing as endangered throughout all of its range, our determination does not conflict with the decision in Center for Biological Diversity v. Everson, 435 F. Supp. 3d 69 (D.D.C. 2020), because that decision related to significant portion of the range analyses for species that warrant listing as threatened, not endangered, throughout all of their range.

Our review of the best available scientific and commercial information indicates that the swale paintbrush meets the Act's definition of an endangered species. Therefore, we are listing the swale paintbrush as an endangered species in accordance with sections 3(6) and 4(a)(1) of the Act.

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

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

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

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

When this rule is effective (see DATES , above), 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 New Mexico will be eligible for Federal funds to implement management actions that promote the protection or recovery of the swale paintbrush. 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 swale paintbrush. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT ).

Section 7 of the Act is titled, “Interagency Cooperation,” and it 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 swale paintbrush that may be subject to consultation procedures under section 7 are land management or other landscape-altering activities on Federal lands administered by the Bureau of Land Management and the U.S. Forest Service, as well as actions on State, Tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq. ) or a permit from the Service under section 10 of the Act) or that involve some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or 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.

The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to endangered plants. The prohibitions of section 9(a)(2) of the Act, and the Service's implementing regulations codified at 50 CFR 17.61, make it illegal for any person subject to the jurisdiction of the United States to commit, to attempt to commit, to solicit another to commit, or to cause to be committed any of the following acts with regard to any endangered plant: (1) import into, or export from, the United States; (2) remove and reduce to possession from areas under Federal jurisdiction; maliciously damage or destroy on any such area; or remove, cut, dig up, or damage or destroy on any other area in knowing violation of any law or regulation of any State or in the course of any violation of a State criminal trespass law; (3) deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in the course of a commercial activity; or (4) sell or offer for sale in interstate or foreign commerce. Certain exceptions to these prohibitions apply to employees or agents of the Service, other Federal land management agencies, and State conservation agencies.

We may issue permits to carry out otherwise prohibited activities involving endangered plants under certain circumstances. Service regulations governing permits for endangered plants are codified at 50 CFR 17.62, and general Service permitting regulations are codified at 50 CFR part 13. With regard to endangered plants, a permit may be issued for scientific purposes or for enhancing the propagation or survival of the species. The statute also contains certain exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.

It is the policy of the Services, as published in the Federal Register on July 1, 1994 (59 FR 34272), to identify, to the extent known at the time a species is listed, specific activities that will not be considered likely to result in violation of section 9 of the Act. To the extent possible, activities that will be considered likely to result in violation of section 9 of the Act 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.

As mentioned above, certain activities that are prohibited under section 9 may be permitted under section 10 of the Act. In addition, to the extent currently known, the following activities will not be considered likely to result in violation of section 9 of the Act:

(1) Normal residential landscaping activities on non-Federal lands that do not occur within known swale paintbrush habitat; and

(2) Cool season livestock grazing (November to April) that is conducted in a manner that does not result in degradation of swale paintbrush habitat.

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

At this time, we are unable to identify specific activities that will be considered likely to result in a violation of section 9 of the Act beyond what is already clear from the descriptions of the prohibitions in section 9(a)(2) of the Act and at 50 CFR 17.61. Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the New Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

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.

Our regulations at 50 CFR 424.02 define the geographical area occupied by the species as an area that may generally be delineated around species' occurrences, as determined by the Secretary ( i.e., range). Such areas may include those areas used throughout all or part of the species' life cycle, even if not used on a regular basis ( e.g., migratory corridors, seasonal habitats, and habitats used periodically, but not solely by vagrant individuals).

Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.

Critical habitat receives protection under section 7 of the Act through the requirement that each Federal action agency ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of designated critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation also does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Rather, designation requires that, where a landowner requests Federal agency funding or authorization for an action that may affect an area designated as critical habitat, the Federal agency consult with the Service under section 7(a)(2) of the Act. If the action may affect the listed species itself (such as for occupied critical habitat), the Federal action agency would have already been required to consult with the Service even absent the critical habitat designation because of the requirement to ensure that the action is not likely to jeopardize the continued existence of the species. Even if the Service were to conclude after consultation that the proposed activity is likely to result in destruction or adverse modification of the critical habitat, the Federal action agency and the landowner are not required to abandon the proposed activity, or to restore or recover the species; instead, they must implement “reasonable and prudent alternatives” to avoid destruction or adverse modification of critical habitat.

Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat).

Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information from the SSA report and information developed during the listing process for the species. Additional information sources may include any generalized conservation strategy, criteria, or outline that may have been developed for the species; the recovery plan for the species; articles in peer-reviewed journals; conservation plans developed by States and counties; scientific status surveys and studies; biological assessments; other unpublished materials; or experts' opinions or personal knowledge.

Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act; (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species; and (3) the prohibitions found in section 9 of the Act. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, HCPs, or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.

Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12) require that, to the maximum extent prudent and determinable, the Secretary shall designate critical habitat at the time the species is determined to be an endangered or threatened species. On April 5, 2024, we published a final rule that revised our regulations at 50 CFR part 424 to further clarify when designation of critical habitat may not be prudent (89 FR 24300). Our regulations (50 CFR 424.12(a)(1)) state that designation of critical habitat may not be prudent in circumstances such as, but not limited to, the following:

(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;

(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; or

(iv) No areas meet the definition of critical habitat.

In the proposed listing rule, we determined that designation of critical habitat for swale paintbrush would not be prudent (88 FR 37490 at 37502-37503, June 8, 2023). We invited public comment and requested information on our rationale that designation of critical habitat was not prudent based on circumstance (i). Comments we received during the public comment period indicated some disagreement that collection is a threat to the species, which is described and addressed in further detail in the Public Comments section, above. After review and consideration of the comments we received, we now make a final determination that the designation of critical habitat for the swale paintbrush is not prudent, in accordance with 50 CFR 424.12(a)(1). Our not prudent finding for the swale paintbrush is based on the threat of collection—circumstance (i)—which is identical in the 2019 regulations (under which the proposed rule published) and the 2024 regulations (under which this final rule is being published); thus, there is no functional or operation difference in application or outcome. Analysis under both the 2019 and 2024 regulation provisions is identical.

In our June 8, 2023, proposed rule, we noted that because of the small known extant range and population size of this species, its annual duration and reliance on frequent seedbank replenishment, and risks to its seedbank from stochastic events and other ongoing threats to the species, effects from illegal collection (removal of plants and damage to habitat) would be deleterious to the swale paintbrush (88 FR 37490 at 37502-37503, June 8, 2023).

Although no known illegal collection events of the swale paintbrush have been documented, other species within the genus Castilleja are horticulturally desirable. Seeds of many Castilleja species are readily available via online companies, and yellow-bracted species, aesthetically similar to the swale paintbrush, are marketed as rare. There is a history of illegal collection occurring for other species at or within the near vicinity of the Gray Ranch site. These collection efforts involved the Sonoran Desert toad (New Mexico Department of Game and Fish 2020, pp. 78-79), New Mexico ridge-nosed rattlesnake (Harris Jr. and Simmons 1975, p. 6; Malpai Borderlands Group 2008, p. 60), and Mexican hog-nosed snake (Medina 2021, pers. comm.). The swale paintbrush is easier to detect and collect than these mobile, camouflaged species. Illegal collection and/or vandalism events are difficult to document, especially in the case of rare plant species, but they are suspected as a possible cause for the declines of many rare plant species (Krigas et al. 2014, p. 86; Margulies et al. 2019, pp. 174, 178; Lavorgna et al. 2020, p. 28).

Additionally, swale paintbrush locality data are not published within online databases due to the species' rarity and limited distribution (Gilbert and Pearson 2021, unpaginated; iNaturalist 2023, unpaginated; Natural Heritage New Mexico n.d., unpaginated). Designation of critical habitat requires the publication of maps and a narrative description of specific critical habitat areas in the Federal Register . The degree of detail necessary to properly designate critical habitat is considerably greater than the general descriptions of location provided in this rule to list the swale paintbrush as an endangered species. We find that the publication of maps and descriptions outlining the locations could further facilitate unauthorized collection and/or vandalism by providing currently unavailable precise location information.

Furthermore, we assessed the risks associated with a critical habitat designation for the swale paintbrush, and some of them would be catastrophic. The swale paintbrush is an annual plant species, and Castilleja seed longevity is not documented at greater than 2 years in the wild; thus, frequent replenishment of the seedbank is essential to population persistence (Service 2023, p. 22). As few as 2 consecutive years of adverse environmental conditions or human-caused or natural adverse stochastic events could lead to population extirpation for this species (Service 2023, p. 30). Factors that thwart seedbank replenishment include growing season inundation, fire, or grazing/trampling; vegetative competition; drought; and illegal collection (Service 2023, pp. 28-31, 34, 95). These factors can occur simultaneously or consecutively, and synergistic interactions between these threats are possible (Service 2023, p. 30). Given the small known extant range—approximately 11 hectares (28 acres)—and population size of the species, combined with risks to its seedbank from stochastic events and other ongoing threats to the species, the swale paintbrush is exceptionally vulnerable to adverse effects from illegal collection (including removal of swale paintbrush seeds from the wild) and/or vandalism. Such adverse effects include genetic effects (loss of genetic diversity, evolutionary potential, and adaptive capacity) and habitat effects (changes in habitat quality) in addition to demographic effects (reduced seed bank abundance and, therefore, reduced population abundance). The actual severity of impact from a collection event depends on how a collection is conducted as well as the population abundance and fecundity at the site in years preceding, during, and following the collection event. While the consequences of any given collection event are unpredictable, increased collection pressure—combined with the impacts of other, ongoing stressors—is likely to result in increased risk of population extirpation and, thus, species extinction in the wild.

Overall, given the small known extant range and population size of this species, its annual duration and reliance on frequent seedbank replenishment, and risks to its seedbank from stochastic events and other ongoing threats to the species, effects from illegal collection (removal of plants and damage to habitat) would be deleterious to the swale paintbrush. Therefore, in accordance with 50 CFR 424.12(a)(1), we determine that designation of critical habitat is not prudent for the swale paintbrush.

In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951, May 4, 1994), Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), the President's memorandum of November 30, 2022 (Uniform Standards for Tribal Consultation; 87 FR 74479, December 5, 2022), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with federally recognized Tribes and Alaska Native Corporations (ANCs) 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. We contacted all Tribal entities with documented cultural interests in Hidalgo County, New Mexico—the Hopi Tribe, the White Mountain Apache Tribe, the Mescalero Apache Tribe, and the Fort Sill Apache Tribe—to provide them notice of our status review; solicit information and invite their participation in the SSA process; and inform them of the publication of our June 8, 2023, proposed rule and its open public comment period. We did not receive any information from Tribal entities during the SSA process or during our June 8, 2023, proposed rule's public comment period. We will continue to coordinate with Tribal entities throughout the recovery process for the swale paintbrush.

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

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

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

Regulations governing the summer flounder fishery are found at 50 CFR 648.100 through 648.111. The regulations require annual specification of a commercial quota that is apportioned on a percentage basis among the coastal states from Maine through North Carolina. The process to set the annual commercial quota and the percent allocated to each state is described in § 648.102.

The commercial quota for summer flounder for 2024 was set equal to 8,789,830 pounds (lb; 3,987,000 kilograms (kg)) (88 FR 88266, December 23, 2023). The amount allocated to vessels landing summer flounder in Rhode Island is 1,378,507 lb (625,280 kg). Rhode Island received commercial summer flounder quota transfers of 3,799 lb (1,723 kg) (89 FR 51986, June 21, 2024) from Virginia, and 12,120 lb (5,498 kg) (89 FR 70124, August 29, 2024) and 1,835 lb (832 kg) (89 FR 80795, October 4, 2024) from North Carolina, resulting in a revised commercial summer flounder quota for Rhode Island of 1,396,261 lb (633,333 kg).

The NMFS Regional Administrator for the Greater Atlantic Region monitors the state commercial landings and determines when a state's commercial quota has been harvested. NMFS is required to publish notification in the Federal Register advising and notifying commercial vessels and dealer permit holders that, effective upon a specific date, the state's commercial quota has been harvested and no commercial quota is available for landing summer flounder in that state. Based on dealer reports and other available information, the Regional Administrator has determined that the available quota has been harvested. The Rhode Island Division of Marine Fisheries closed the state fishery on December 2, 2024, and this action promotes consistency between the state and Federal management measures.

The regulations at 50 CFR 648.14(n) prohibit Federally permitted vessels from landing summer flounder for sale in a state, and prohibit all persons from purchasing or otherwise receiving summer flounder for a commercial purpose after the effective date published in the Federal Register notification that commercial quota is no longer available in that state. Therefore, effective 0001 hours on December 5, 2024, landings of summer flounder in Rhode Island by vessels holding Federal summer flounder commercial fishery permits are prohibited for the remainder of the 2024 calendar year, unless additional quota becomes available through a transfer and is announced in the Federal Register . Effective 0001 hours on December 5, 2024, federally permitted dealers are also notified that they may not purchase summer flounder from federally permitted vessels that land in Rhode Island for the remainder of the calendar year, or until additional quota becomes available through a transfer from another state.

This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.

The Assistant Administrator for Fisheries, NOAA, finds good cause pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment because it would be contrary to the public interest. This action closes the commercial summer flounder fishery for Rhode Island until January 1, 2025, under current regulations. The regulations at 50 CFR 648.103(b) require such action to ensure that summer flounder vessels do not exceed quotas allocated to the states. If implementation of this closure was delayed to solicit prior public comment, the quota for this fishing year will be exceeded, thereby undermining the conservation objectives of the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan. The Assistant Administrator further finds, pursuant to 5 U.S.C. 553(d)(3), good cause to waive the 30-day delayed effectiveness period for the reason stated above.