The Agency is issuing a technical correction to its regulations in 7 CFR part 1714, which were amended by a final rule that published in the Federal Register on July 9, 2021 (86 FR 36193).

Accordingly, 7 CFR part 1714 is corrected by making the following correcting amendments:

The FAA was notified by the manufacturer of the detection of iron inclusion in three non-LEAP-1A HPT rotor disks. Further investigation by the manufacturer determined that the iron inclusion is attributed to deficiencies in the manufacturing process. The investigation by the manufacturer also determined that certain CFM International, S.A. LEAP-1A HPT stage 1 disks and a stages 6-10 compressor rotor spool manufactured using the same process may have reduced material properties and a lower fatigue life capability due to iron inclusion, which may cause premature fracture and uncontained failure. This condition, if not addressed, could result in uncontained debris release, damage to the engine, and damage to the aircraft. The FAA is issuing this AD to address the unsafe condition on these products.

The FAA is issuing this AD because the agency has determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

The FAA reviewed CFM International, S.A. Service Bulletin LEAP-1A-72-00-0474-01A-930A-D, Issue 001-00, dated June 10, 2022. The service information describes procedures for removing and replacing the HPT stage 1 disk and stages 6-10 compressor rotor spool.

This AD requires the replacement of certain HPT stage 1 disks and a stages 6-10 compressor rotor spool.

The FAA considers this AD to be an interim action. This unsafe condition is still under investigation by the manufacturer and, depending on the results of that investigation, the FAA may consider further rulemaking action.

Section 553(b)(3)(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 requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies foregoing notice and comment prior to adoption of this rule because the presence of iron inclusion in the HPT stage 1 disks and stages 6-10 compressor rotor spool could lead to premature fracture and uncontained failure, which indicates an immediate safety of flight problem. The manufacturer identified 12 parts manufactured from material suspected to have iron inclusion and calculated reduced life limits for these parts. These parts are predicted to exceed the reduced life limits prior to October 2022 and will thus require replacement within the next 90 days. The longer these parts remain in service, past their calculated life, the higher the probability of failure. Therefore, the compliance time for the required actions is shorter than the time necessary to allow public comment and the FAA to publish a final rule. Accordingly, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(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 FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include “FAA-2022-0803 and Project Identifier AD-2022-00732-E” 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 https://www.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 Mehdi Lamnyi, Aviation Safety Engineer, ECO Branch, FAA, and 1200 District Avenue, Burlington, MA 01803. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

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 1 engine installed on airplanes of U.S. registry. The FAA estimates that zero engines installed on airplanes of U.S. registry require replacement of the stages 6-10 compressor rotor spool.

The FAA estimates the following costs to comply with this AD:

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

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

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

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

(1) Is not a “significant regulatory action” under Executive Order 12866, 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 the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it expands the availability of RNAV in Alaska and improve the efficient flow of air traffic within the National Airspace System by lessening the dependency on ground based navigation.

The FAA published a notice of proposed rulemaking for Docket No. FAA-2021-0817 in the Federal Register (86 FR 58611; October 22, 2021), establishing United States Area Navigation (RNAV) route T-308 in the vicinity of Anvik, AK in support of a large and comprehensive T-route modernization project for the state of Alaska. Interested parties were invited to participate in this rulemaking effort by submitting comments on the proposal. There were no comments received.

United States Area Navigation Routes are published in paragraph 6011 of FAA Order JO 7400.11F dated August 10, 2021 and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The RNAV route listed in this document would be published subsequently in FAA Order JO 7400.11F.

This document amends FAA Order JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021, and effective September 15, 2021. FAA Order JO 7400.11F is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11F 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 RNAV route T-308 in the vicinity of Anvik, AK in support of a large and comprehensive T-route modernization project for the state of Alaska.

The proposed route is described below.

T-308: This action establishes T-308 to extend between the Emmonak, AK, (ENM) VHF Omni-Directional Range (VOR) and the WEREL, AK, waypoint (WP) which is a new WP replacing the Anvik, AK, (ANV) Non-Directional Beacon (NDB). The T-308 route mirrors the current VOR Federal airway V-510, and serves as an acceptable alternative.

FAA Order JO 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

The FAA 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 Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that 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 determined that this airspace action of establishing RNAV route T-308 in the vicinity of Anvik, AK qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321 et seq. ) and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points), and paragraph 5-6.5i, which categorically excludes from further environmental review the establishment of new or revised air traffic control procedures conducted at 3,000 feet or more above ground level (AGL); procedures conducted below 3,000 feet AGL that do not cause traffic to be routinely routed over noise sensitive areas; modifications to currently approved procedures conducted below 3,000 feet AGL that do not significantly increase noise over noise sensitive areas; and increases in minimum altitudes and landing minima. As such, this action is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. Accordingly, the FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

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 the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies the route description, but retains the route structure as necessary to preserve the safe and efficient flow of air traffic within the National Airspace System (NAS).

RNAV route Q-440 extends through the Great Lakes region into New England between the HUFFR, MN, WP and the RAAKK, NY, WP. After reviewing Q-440 in preparation of upcoming planned navigational aid decommissioning actions, the FAA determined one route point listed in the route description could be removed without affecting the route's structure or charted alignment. The SLLAP, MI, WP in the Q-440 description does not denote a route turn point, have established holding requirements, and does not result in PBN leg length maximum allowable distances being exceeded; therefore, it is not required in the description.

Further, the FAA is changing the DEANI, MI, fix to become a WP in the aeronautical database. As such, the DEANI, MI, fix will be amended in the Q-440 description to reflect the route point as a WP.

Once this action is completed, the SLLAP, MI, WP will continue to be depicted on the IFR En Route High Altitude charts and support air traffic control requirements.

United States Area Navigation Routes (Q-routes) are published in paragraph 2006 of FAA Order JO 7400.11F, dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The Q-440 route listed in this document will be published subsequently in FAA Order JO 7400.11.

This document amends FAA Order JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021, and effective September 15, 2021. FAA Order JO 7400.11F is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11F 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 Q-440 in Michigan. Q-440 extends between the HUFFR, MN, WP and the RAAKK, NY, WP. The DEANI, MI, fix will be changed to reflect the route point as the DEANI, MI, WP in the route description. The SLLAP, MI, WP route point is removed from the description of Q-440 between the DEANI, MI, WP and the BERYS, MI, WP. The SLLAP WP is on a straight segment of the route and not required to retain the route's structure. The charted depiction of Q-440 is unchanged and the full route description is listed in The Amendment section, below.

This is an administrative change and does not affect the Q-440 route structure, charted alignment, or the operating requirements of the route. Therefore, notice and public procedure under 5 U.S.C. 553(b) is unnecessary.

FAA Order JO 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

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 Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that 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 of amending the legal description of RNAV route Q-440, by changing one route point from a fix to a WP and removing an unnecessary route point from the route description, qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321 et seq. ) and its implementing regulations at 40 CFR part 1500. This is also in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points), and paragraph 5-6.5k, which categorically excludes from further environmental impact review the publication of existing air traffic control procedures that do not essentially change existing tracks, create new tracks, change altitude, or change concentration of aircraft on these tracks. As such, this action is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. The FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

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 the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it expands the availability of RNAV in Alaska and improve the efficient flow of air traffic within the National Airspace System by lessening the dependency on ground based navigation.

The FAA published a notice of proposed rulemaking for Docket No. FAA-2021-0853 in the Federal Register (86 FR 58613; October 22, 2021), establishing United States Area Navigation (RNAV) route T-375 in the vicinity of Bettles, AK in support of a large and comprehensive T-route modernization project for the state of Alaska. Interested parties were invited to participate in this rulemaking effort by submitting comments on the proposal. There were no comments received.

United States Area Navigation Routes are published in paragraph 6011 of FAA Order JO 7400.11F dated August 10, 2021 and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The RNAV route listed in this document would be published subsequently in FAA Order JO 7400.11F.

This document amends FAA Order JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021, and effective September 15, 2021. FAA Order JO 7400.11F is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11F 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 RNAV route T-375 in the vicinity of Bettles, AK in support of a large and comprehensive T-route modernization project for the state of Alaska.

The route is described below.

T-375: This action establishes RNAV route T-375 extending between the Bettles, AK, (BTT) VHF Omnidirectional Range/Distance Measuring Equipment (VOR/DME) navigational aide and the DERIK, AK, waypoint (WP), located northeast of Anaktuvuk Pass, AK.

FAA Order JO 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

The FAA 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 Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that 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 determined that this airspace action of establishing RNAV route T-375 in the vicinity of Bettles, AK qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321 et seq. ) and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points), and paragraph 5-6.5i, which categorically excludes from further environmental review the establishment of new or revised air traffic control procedures conducted at 3,000 feet or more above ground level (AGL); procedures conducted below 3,000 feet AGL that do not cause traffic to be routinely routed over noise sensitive areas; modifications to currently approved procedures conducted below 3,000 feet AGL that do not significantly increase noise over noise sensitive areas; and increases in minimum altitudes and landing minima. As such, this action is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. Accordingly, the FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

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

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

On June 6, 2003, OFAC issued the Global Terrorism Sanctions Regulations, 31 CFR part 594 (68 FR 34196, June 6, 2003) (“the Regulations”), to implement Executive Order (E.O.) 13224 of September 23, 2001, “Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten To Commit, or Support Terrorism” (66 FR 49079, September 25, 2001). OFAC has amended the Regulations on several occasions.

On September 9, 2019, the President, invoking the authority of, inter alia, the International Emergency Economic Powers Act (50 U.S.C. 1701-1706) (IEEPA) and the United Nations Participation Act (22 U.S.C. 287c) (UNPA), issued E.O. 13886, “Modernizing Sanctions To Combat Terrorism” (84 FR 48041, September 12, 2019), effective September 10, 2019. In E.O. 13886, the President, finding it necessary to consolidate and enhance sanctions to combat acts of terrorism and threats of terrorism by foreign terrorists, terminated the national emergency declared in E.O. 12947 of January 23, 1995, “Prohibiting Transactions With Terrorists Who Threaten To Disrupt the Middle East Peace Process” (60 FR 5079, January 25, 1995), and revoked E.O. 12947, as amended by E.O. 13099 of August 20, 1998, “Prohibiting Transactions With Terrorists Who Threaten To Disrupt the Middle East Peace Process” (63 FR 45167, August 25, 1998). In addition, the President amended E.O. 13224, in order to build upon initial steps taken in E.O. 12947, to further strengthen and consolidate sanctions to combat the continuing threat posed by international terrorism, and in order to take additional steps to deal with the national emergency declared in E.O. 13224, with respect to the continuing and immediate threat of grave acts of terrorism and threats of terrorism committed by foreign terrorists, which include acts of terrorism that threaten the Middle East peace process.

Section 1 of E.O. 13886 replaces in its entirety section 1 of E.O. 13224, which had been amended by a number of prior Executive orders (E.O. 13224, as amended by all such authorities, is referred to herein as “amended E.O. 13224”), but does not amend the Annex to E.O. 13224, which was previously amended by E.O. 13268 of July 2, 2002, “Termination of Emergency With Respect to the Taliban and Amendment of Executive Order 13224 of September 23, 2001” (67 FR 44751, July 3, 2002) (“amended Annex to E.O. 13224”). New section 1(a) of amended E.O. 13224 blocks all property and interests in property that are in the United States, that hereafter come within the United States, or that are or hereafter come within the possession or control of any United States person of: (i) the persons listed in the amended Annex to E.O. 13224; (ii) foreign persons determined by the Secretary of State, in consultation with the Secretary of the Treasury, the Attorney General, and the Secretary of Homeland Security: (A) to have committed or have attempted to commit, to pose a significant risk of committing, or to have participated in training to commit acts of terrorism that threaten the security of United States nationals or the national security, foreign policy, or economy of the United States; or (B) to be leader of an entity: (1) listed in the amended Annex to E.O. 13224; or (2) whose property and interests in property are blocked pursuant to a determination by the Secretary of State pursuant to amended E.O. 13224; (iii) persons determined by the Secretary of the Treasury, in consultation with the Secretary of State, the Secretary of Homeland Security, and the Attorney General: (A) to be owned, controlled, or directed by, or to have acted or purported to act for or on behalf of, directly or indirectly, or any person whose property and interests in property are blocked pursuant to amended E.O. 13224; (B) to own or control, directly or indirectly, any person whose property and interests in property are blocked pursuant to amended E.O. 13224; (C) to have materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of, an act of terrorism as defined in section 3(d) of amended E.O. 13224, or any person whose property and interests in property are blocked pursuant to amended E.O. 13224; (D) to have participated in training related to terrorism provided by any person whose property and interests in property are blocked pursuant to amended E.O. 13224; (E) to be a leader or official of an entity whose property and interests in property are blocked pursuant to: (1) a determination by the Secretary of the Treasury pursuant to amended E.O. 13224; or (2) section (a)(iv) of section 1 of amended E.O. 13224; or (F) to have attempted or conspired to engage in any of the activities described in sections (a)(iii)(A) through (E) of section 1 of amended E.O. 13224; and (iv) persons whose property and interests in property were blocked pursuant to E.O. 12947, as amended, on or after January 23, 1995 and remained blocked immediately prior to September 24, 2001 (the effective date of amended E.O. 13224). The property and interests in property of the persons described above may not be transferred, paid, exported, withdrawn, or otherwise dealt in.

New section 1(b) of amended E.O. 13224 authorizes the Secretary of the Treasury to prohibit the opening, and prohibit or impose strict conditions on the maintaining, in the United States, of a correspondent account or payable-through account of any foreign financial institution that the Secretary of the Treasury, in consultation with the Secretary of State, has determined, on or after September 24, 2001 (the effective date of amended E.O. 13224), has knowingly conducted or facilitated any significant transaction on behalf of any person whose property and interests in property are blocked pursuant to amended E.O. 13224.

Section 2 of E.O. 13886 amends section 5 of E.O. 13224 by replacing the reference to section 1(d) with a reference to section 1(a)(iii) to make a conforming change to reference the similar, but expanded, designation criteria in new section 1(a)(iii) of amended E.O. 13224.

OFAC is amending the Regulations to implement the provisions of E.O. 13886 that amend sections 1(a) and 5 of E.O. 13224, as well as to make other technical and conforming changes for this amendment. Specifically, OFAC is amending the Regulations as follows: (i) amending the authority citation to incorporate E.O. 13886 as a new authority and the Hizballah International Financing Prevention Act of 2015 (Pub. L. 114-102, 129 Stat. 2205, 50 U.S.C. 1701 note), as amended; (ii) amending § 594.201 to reflect the new designation criteria contained in section 1(a) of amended E.O. 13224; (iii) updating the definition of the term effective date in § 594.302 to account for revisions to § 594.201; (iv) adjusting or removing cross-references in § 594.301 and elsewhere in the Regulations to certain subparagraphs of revised § 594.201; and (v) updating § 594.802 to add certain presidential delegations. OFAC anticipates implementing section 1(b) of amended E.O. 13224 at a later date.

Because the amendment of the Regulations involves a foreign affairs function, the provisions of E.O. 12866 of September 30, 1993, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), and the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, opportunity for public participation, and delay in effective date are inapplicable. Because no notice of proposed rulemaking is required for this rule, the Regulatory Flexibility Act (5 U.S.C. 601-612) does not apply.

The collections of information related to the Regulations are contained in 31 CFR part 501 (the “Reporting, Procedures and Penalties Regulations”). Pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), those collections of information have been approved by the Office of Management and Budget under control number 15015-0164. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number.

For the reasons set forth in the preamble, OFAC amends 31 CFR part 594 as follows:

On April 22, 2022, the Human Access Project notified the Coast Guard that it will need to reschedule The Big Float, an annually recurring marine event. The event consists of a float parade from 11 a.m. to 6 p.m. on July 10, 2022. In response, on June 2, 2022, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Safety Zone; Parade, Willamete River, Portland, OR (87 FR 33695). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to this event. During the comment period that ended July 21, 2022, we received no comments.

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

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Columbia River (COTP) has determined that the potential hazards associated with the float parade would be a safety concern for anyone within the designated area of the safety zone before, during, or after the parade. The purpose of this rulemaking is to protect personnel, vessels, and the marine environment in these navigable waters before, during, and after the scheduled event.

As noted above, we received no comments on our NPRM published June 2, 2022. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.

This rule establishes a safety zone from 10:30 a.m. to 6:30 p.m. on July 10, 2021. The safety zone will cover all navigable waters of the Willamette River, in Portland Oregon, enclosed by the Hawthorne Bridge, the Marquam Bridge, and west of a line beginning at the Hawthorne Bridge at approximate location 45°30′50″ N; 122°40′21″ W, and running south to the Marquam Bridge at approximate location 45°30′27″ N; 122°40′11″ W. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled 11 a.m. to 6 p.m. parade. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

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

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

This regulatory action determination is based on the size, location, duration, and time-of-year of the safety zone. The safety zone created by this rule is designed to minimize its impact on navigable waters. This rule prohibits entry into certain navigable waters of the Willamette River and is not anticipated to exceed 7 hours in duration. Thus, restrictions on vessel movement within that particular area are expected to be minimal. Moreover, under certain conditions vessels may still transit through the safety zone when permitted by the COTP. The Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone and the rule allows 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 received no comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting 7 hours that will prohibit entry within a 1 mile length of the Willamette River for the duration of the float event. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

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

On January 27, 2022, Kaneohe Bay Air Show 2022 coordinators informed the U.S. Coast Guard of a State of Hawaii approved Air Show plan that include an aerial performance “show box” extending beyond the Kaneohe Bay Naval Defensive Sea Area as established by Executive Order No. 8681 of February 14, 1941. Within this “show box”, the U.S. Navy Blue Angels Squadron will conduct aerobatic performances, exhibiting their aircraft's maximum performance capabilities, over Kaneohe Bay, Oahu, Hawaii during a 3-day period. Taking into account the hazards associated within this “show box” during the Squadron's high powered multiple jet aircraft performances, and that Kaneohe Bay normally experiences heavy waterway traffic during the weekends, the COTP determined that a safety zone for the portions of the “show box” that extend beyond the Kaneohe Bay Naval Defensive Sea would be appropriate to ensure the safety of all watercraft and the general public during the Blue Angels' performances. In response, on March 28, 2022, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Safety Zone; Blue Angels at Kaneohe Bay Air Show; Oahu, HI (87 FR 17246). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to this air show. During the comment period that ended April 27, 2022, we received no comments.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The COTP has determined that potential hazards associated with the air show scheduled to take place August 12-14, 2022 will be a safety concern for anyone within the “show box.” The purpose of this rule is to ensure safety of vessels and the general public in the safety zone before, during, and after the scheduled event.

As noted above, we received no comments on our NPRM published March 28, 2022. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.

This rule establishes a temporary safety zone while the U.S. Navy Blue Angels Squadron conducts aerobatic performances over Kaneohe Bay, Oahu, Hawaii from 9 a.m. through 5 p.m., August 12-14, 2022. This safety zone will encompass a small area of the Kaneohe Bay Naval Defensive Sea Area, including an area that extends approximately 200 yards northeast and 1,000 yards southwest of the Naval Defensive Sea Area and is bound by the following points: 21°26.159′ N, 157°47.312′ W; then south to 21°25.890′ N, 157°47.250′ W; then northeast to 21°27.943′ N, 157°44.953′ W; then west to 21°28.016′ N, 157°45.250′ W; and returning southwest to the starting point. This safety zone will extend from the surface of the water to the ocean floor. These safety zones are necessary to protect watercraft and the general public from hazards associated with the U.S. Navy Blue Angels aircraft low flying, high powered jet aerobatics over open waters. Vessels requiring emergency transit through the zone may request permission by contacting the on scene Patrol Commander on VHF channel 16 (156.800 MHz) or the Honolulu Captain of the Port at telephone number 808-842-2600.

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. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. Vessel traffic will be able to safely transit around this safety zone which would impact a small designated area of Kaneohe Bay and offshore waters. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow 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 received no comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969(42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone that extends the Kaneohe Bay Naval Defense Sea Area on both sides that would prevent vessels from entering the flight paths for the air show. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because we must establish this safety zone by June 30, 2022. This urgent safety zone is required to protect the maritime public and the surrounding waterways from hazards associated with a U.S. Navy construction project. The Coast Guard lacks sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be contrary to public interest because action is needed to ensure the safety of life on the navigable waters of San Diego Bay during construction activities scheduled to begin on June 30, 2022.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port San Diego (COTP) has determined that the potential hazards associated with the U.S. Navy construction activities scheduled to begin on June 30, 2022 poses a potential safety concern in the regulated area. This rule is needed to protect non-involved personnel in the navigable waters of San Diego Bay during the exercise.

This rule establishes a safety zone from 7:30 a.m. through 3:30 p.m. daily on June 30, July 1, 5, 6, and 7, 2022. The safety zone will cover all navigable waters of San Diego Bay within a 1,900-foot radius centered at Pier 14 at the Naval Amphibious Base on Naval Base Coronado. The purpose of the safety zone is to protect non-involved personnel in the navigable waters of San Diego Bay during the construction project. No swimming or diving will be permitted within the safety zone without obtaining permission from the COTP or his designated representative.

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

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

This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone, and will only prohibit swimming and diving within the safety zone. Vessel traffic will be able to transit through this safety zone, which will impact a small designated area of the San Diego Bay. The Coast Guard will issue a Local Notice to Mariners and Broadcast Notice to Mariners via VHF-FM marine channel 16 about 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 swimmers or divers intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any swimmer or diver.

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone that will prohibit entry within a 1,900-foot radius of a designated coordinate in the vicinity of Naval Base Coronado in San Diego Bay. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

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

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of 40 CFR part 180 through the Office of the Federal Register's e-CFR site at https://www.ecfr.gov/current/title40.

Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2021-0682 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 August 30, 2022. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2021-0682, by one of the following methods.

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

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

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

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

In the Federal Register of October 21, 2021 (86 FR 58239) (FRL-8792-04-OCSPP), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the receipt of a pesticide petition (PP IN-11566) by Spring Regulatory Sciences (6620 Cypresswood Dr, Suite 250, Spring, TX 77379), on behalf of Evonik Corporation, (P.O. Box 34628, Richmond, VA 23234). The petition requested that 40 CFR 180.940(a) be amended by establishing an exemption from the requirement of a tolerance for residues of sodium dioctyl sulfosuccinate (CAS Reg. No. 577-11-7) for use as an inert ingredient in antimicrobial pesticide formulations. That document referenced a summary of the petition prepared by the petitioner, which is available in the docket, and solicited comments on the petitioner's request at http://regulations.gov. There were no comments received in response to the notice of filing.

Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.

Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but 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.”

EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be shown that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no harm to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.

Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(c)(2)(B), EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure to sodium dioctyl sulfosuccinate including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with sodium dioctyl sulfosuccinate follows.

EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Sodium dioctyl sulfosuccinate is also known as dioctyl sodium sulfosuccinate or DSS. Specific information on the studies received and the nature of the adverse effects caused by sodium dioctyl sulfosuccinate, as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies, are discussed in the November 5, 2012 document titled “Dioctyl Sodium Sulfosuccinate: Preliminary Human Health Risk Assessment in Support of Registration Review,” which is available at https://www.regulations.gov in docket ID number EPA-HQ-OPP-2010-1006, and in the June 10th, 2022 document titled “IN-11566; Petition to an amend Tolerance Exemption for Sodium dioctyl sulfosuccinate (CAS No. 577-11-7), adding it to the approved list of food use inert ingredients under 40 CFR 180.940(a) in Pesticide Formulations.” which is available at https://www.regulations.gov in the docket for this action.

Sodium dioctyl sulfosuccinate has low acute oral, dermal and inhalation toxicity. It is neither a skin sensitizer nor a skin or eye irritant. Toxicity to offspring occurred in the reproduction and developmental studies only at the limit dose and in the presence of parental toxicity. The subchronic toxicity, chronic toxicity, and mutagenicity studies did not demonstrate any significant toxicity of sodium dioctyl sulfosuccinate.

In a 90-day oral toxicity study in Sprague-Dawley rats with sodium dioctyl sulfosuccinate, no adverse effects were observed up to the highest dose tested and the NOAEL is 1000 mg/kg/day.

The toxicological points of departure/levels of concern of sodium dioctyl sulfosuccinate remain unchanged from the Toxicological Profile in Preliminary Human Health Risk Assessment in Support of Registration Review. D405928, November 5, 2012. No toxicological endpoints of concern were identified for sodium dioctyl sulfosuccinate because there was no offspring susceptibility and the only effects observed occurred at the limit dose.

Dietary and residential (non-occupational and non-dietary) exposures are expected from the proposed and existing uses of sodium dioctyl sulfosuccinate. However, no quantitative dietary or residential exposure assessments were conducted because no toxicological endpoints of concern were identified.

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.”

EPA has not determined that sodium dioctyl sulfosuccinate share a common mechanism of toxicity with any other substances, and sodium dioctyl sulfosuccinate does not appear to produce a toxic metabolite produced by other substances. For the purposes of this action, therefore, EPA has assumed that sodium dioctyl sulfosuccinate does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at https://www.epa.gov/pesticides/cumulative .

Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database unless EPA concludes that a different margin of safety will be safe for infants and children. Based on an assessment of sodium dioctyl sulfosuccinate, EPA has concluded that there are no toxicological endpoints of concern for the U.S. population, including infants and children, and a qualitative assessment is being conducted for sodium dioctyl sulfosuccinate. The qualitative assessment does not use safety factors for assessing risk, and no additional safety factor is needed for assessing risk to infants and children.

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 sodium dioctyl sulfosuccinate residues. More detailed information about the Agency's analysis can be found at https://www.regulations.gov in the November 5, 2012 document titled “Dioctyl Sodium Sulfosuccinate: Preliminary Human Health Risk Assessment in Support of Registration Review” in docket ID number EPA-HQ-OPP-2010-1006, and in the June 10th, 2022 document titled “IN-11566; Petition to an amend Tolerance Exemption for Sodium dioctyl sulfosuccinate (CAS No. 577-11-7), adding it to the approved list of food use inert ingredients under 40 CFR 180.940(a) in Pesticide Formulations.” in the docket for this action.

An analytical method is not required for enforcement purposes since the Agency is not establishing a numerical tolerance for residues of sodium dioctyl sulfosuccinate in or on any food commodities.

Therefore, an exemption from the requirement of a tolerance is established under 40 CFR 180.940(a) for sodium dioctyl sulfosuccinate when used as an inert ingredient in antimicrobial pesticide formulations applied to food-contact surfaces in public eating places, dairy-processing equipment, and food-processing equipment and utensils.

This action establishes a tolerance exemption 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 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 exemption 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 I as follows:

The Mexican wolf ( Canis lupus baileyi ) is a subspecies of gray wolf that historically occurred in portions of the southwestern United States and central and northern Mexico. Today, Mexican wolves occupy the Mexican Wolf Experimental Population Area in central and southern Arizona and New Mexico in the United States, and portions of the states of Sonora and Chihuahua in Mexico. Mexican wolves predominantly prey on elk in the United States, but other sources of prey throughout their current range include deer, small mammals, and birds. Mexican wolves are also known to scavenge on livestock (USFWS 2017b, pp. 12-19). Similar to other gray wolves, Mexican wolves are social predators that live and hunt in packs with an established territory. Mexican wolf territories are dozens to several hundred square miles in size, and Mexican wolves may disperse long distances to establish a new territory (86 FR 59953, October 29, 2021, p. 86 FR 59959). Mexican wolves face threats across their range from demographic stochasticity (fluctuations in survival and reproduction associated with small population size); genetic issues including inbreeding, loss of heterozygosity, and loss of adaptive potential; and excessive human-caused mortality, including illegal killing (80 FR 2488, January 16, 2015; see also USFWS 2017a, pp. 23-34, and USFWS 2017b, p. 9, for additional discussion of these threats).

The Mexican wolf is listed under the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 et seq. ), as endangered wherever it is found (80 FR 2488; January 16, 2015) except in the Mexican Wolf Experimental Population Area, where is it listed as a nonessential experimental population. The current List of Endangered and Threatened Wildlife under the ESA is found in part 17 of title 50 of the Code of Federal Regulations (CFR) at 50 CFR 17.11(h).

The 1982 amendments to the ESA included the addition of section 10(j), which allows for the designation of populations of listed species planned for reintroduction as “experimental populations.” Our implementing regulations at 50 CFR 17.81 state that the Service may designate a population of endangered or threatened species that we have released or will release into suitable natural habitat outside the species' current natural range, but within its probable historical range, as an experimental population. Hereafter in this document, we refer to a species-specific rule issued under section 10(j) of the ESA as a “10(j) rule.”

This final rule designates Mexican wolves in the Mexican Wolf Experimental Population Area (MWEPA) as a nonessential experimental population on the List of Endangered and Threatened Wildlife at 50 CFR 17.11(h) with a revised rule issued under section 10(j) of the ESA at 50 CFR 17.84(k). We developed the rule to comply with the District Court of Arizona remand (“March 31, 2018, order”) of our 2015 10(j) rule for the Mexican wolf (80 FR 2512; January 16, 2015).

On October 29, 2021, we published in the Federal Register (86 FR 59953) a proposed rule to revise the regulations for the nonessential experimental population designation of the Mexican wolf in the MWEPA in Arizona and New Mexico (“proposed rule”). The proposed rule included a revised population objective, a new genetic objective, and the temporary restriction of three take provisions for the Mexican wolf in the MWEPA, as well as a fresh essentiality determination under section 10(j) of the ESA. We proposed revisions that would individually and collectively contribute to the long-term conservation and recovery of the Mexican wolf by alleviating significant threats and achieving recovery goals consistent with our recovery strategy for the Mexican wolf (USFWS 2017b, pp. 10-17). We sought comments on the proposed rule and on a draft supplemental environmental impact statement (DSEIS) during a 90-day public comment period, ending January 27, 2022. We held three public information sessions and two public hearings during the public comment period. In total, we received more than 82,000 written and oral comments on the proposed rule and DSEIS.

In accordance with our policy, “Notice of Interagency Cooperative Policy for Peer Review in Endangered Species Act Activities” (59 FR 34270, July 1, 1994), and a recent memo updating the peer review policy for listing and recovery actions (August 22, 2016), we also sought the expert opinion of five appropriate independent specialists regarding the scientific data and interpretations contained in the proposed rule. The purpose of such peer review is to ensure that we base our decision on scientifically sound data, assumptions, and analysis. This final rule incorporates and addresses comments received during the public comment and peer review processes.

For further information on the biology of the Mexican wolf, including its habitat use and lifecycle, the history of conservation and recovery efforts for this species under the ESA, and our legal and statutory framework (including the basis for our action), please see the proposed rule (86 FR 59953; October 29, 2021), which is available at https://www.regulations.gov in Docket No. FWS-R2-ES-2021-0103.

Our revisions to the experimental population designation for the MWEPA contribute to the long-term conservation and recovery of the Mexican wolf by alleviating threats and achieving demographic and genetic management objectives that align with several of our recovery criteria for the Mexican wolf from the Mexican Wolf Recovery Plan, First Revision (USFWS 2017b, pp. 18-20) (“revised recovery plan”). The revised recovery plan was not available to serve as a foundation for the revisions to the MWEPA that we finalized in the 2015 10(j) rule (80 FR 2512, January 16, 2015, pp. 2514-2515). First, this rule revises the population objective established in the 2015 10(j) rule of 300 to 325 wolves. In this rule, we state that, based on end-of-year counts, we will manage to achieve and sustain a population average greater than or equal to 320 wolves in Arizona and New Mexico. This average must be achieved over an 8-year period, the population must exceed 320 Mexican wolves each of the last 3 years of the 8-year period, and the annual population growth rate averaged over the 8-year period must demonstrate a stable or increasing population, as calculated by a geometric mean.

We estimate that when the MWEPA population reaches and maintains the revised population objective in this rule, the population will have a 90 percent likelihood of persistence over 100 years. We consider this level of persistence to demonstrate that demographic threats have been alleviated to an extent that is consistent with our recovery strategy and criteria for the Mexican wolf (USFWS 2017a, pp. 32-33, 35-36; USFWS 2017b, pp. 9, 11, 13, 18-22; Miller 2017, entire). Therefore, the revised population objective will contribute to the long-term conservation and recovery of the Mexican wolf because it will result in a population in which the threat of demographic stochasticity has been sufficiently ameliorated.

Second, this rule establishes a new genetic objective for the MWEPA. In this rule, we state that the USFWS and designated agencies will conduct a sufficient number of releases into the MWEPA from captivity to result in at least 22 released Mexican wolves surviving to breeding age.

We estimate that when the MWEPA population reaches the genetic objective, 90 percent of the gene diversity available in captivity will have been transferred to the MWEPA. We expect this infusion of available gene diversity to the MWEPA to alleviate the risk of genetic threats in the MWEPA such as inbreeding, lack of heterozygosity, and lack of adaptive potential, consistent with our recovery strategy and criteria for the Mexican wolf (USFWS 2017b, pp. 9, 11, 13-15, 18-20, 22-24). Therefore, the new genetic objective will contribute to the long-term conservation and recovery of the Mexican wolf by lessening or alleviating genetic threats.

Third, this rule temporarily restricts the use of three take provisions from the 2015 10(j) rule: take on Federal land, take on non-Federal land in conjunction with a removal action, and take in response to an unacceptable impact to a wild ungulate herd. For take on Federal and non-Federal land, this rule states that until the USFWS has achieved the genetic objective by documenting that at least 22 released wolves have survived to breeding age in the MWEPA, the USFWS or a designated agency may issue permits only on a conditional, annual basis according to the following provisions: Either

1. Annual release benchmarks (for the purposes of this paragraph, the term “benchmark” means the minimum cumulative number of released wolves surviving to breeding age since January 1, 2016, as documented annually in March) have been achieved based on the following schedule:

2. Permitted take on non-Federal land, or on Federal land during the previous year (April 1 to March 31) did not include the lethal take of any released wolf or wolves that were or would have counted toward the genetic objective.

After the USFWS has achieved the new genetic objective described above, the conditional annual basis for issuing permits will no longer be in effect.

For the provision for take in response to an unacceptable impact to a wild ungulate herd, this rule states that no requests for take in response to unacceptable impacts to a wild ungulate herd may be made by the State game and fish agency or accepted by the USFWS until the genetic objective has been met.

We expect the temporary restriction of three take provisions to reduce the take of released wolves during the near-term period in which we are trying to improve the gene diversity of the MWEPA because the Service will not issue take permits for take on Federal and non-Federal land unless conditional benchmarks toward recovery are met, or accept requests to take wolves in response to an unacceptable impact to a wild ungulate herd, until the genetic objective is met (USFWS 2022a, pp. 26-32, including table 2.1 on pp. 28-29). Reducing the take of released wolves will decrease the amount of time it takes to reach the genetic objective compared to not restricting these forms of take (USFWS 2022a, pp. 116-118). The growth of the MWEPA population in recent years necessitates a strong temporal focus on improving gene diversity in the near term because it will be more difficult to improve gene diversity and alleviate genetic threats at larger population sizes (USFWS 2017b, pp. 33-34).

The time period for the restriction of these three take provisions is based on our expectation that once the genetic objective is reached, the gene diversity of released wolves will have integrated into the population through breeding events between released and wild wolves such that released wolves will no longer represent a pool of unique gene diversity. In other words, as more released wolves survive and breed in the wild, the unique contribution of each released wolf to the gene diversity of the MWEPA diminishes. Because of this scenario, restricting these take provisions beyond the time at which we achieve the genetic objective would not result in the protection of unique gene diversity contributed by wolves released from captivity. Therefore, the short-term restriction of these three take provisions contributes to the long-term conservation and recovery of the Mexican wolf because the restriction will support achieving the genetic objective, which will lessen genetic threats in the MWEPA consistent with our recovery strategy and criteria for the Mexican wolf as just described.

We note that the 2021 minimum population count of 196 wolves in the MWEPA demonstrates the sixth consecutive year of steady growth in recent years and that the population has doubled in size since 2015 (2015 minimum population count of 98 wolves) (USFWS files). With each continued year of positive population growth trajectory, the threat of demographic stochasticity in the MWEPA lessens. Inherent in our efforts to achieve the population objective is our recognition that Mexican wolf mortality from all sources, including human-caused mortality, must be sufficiently low to support population growth and persistence (USFWS 2017a, pp. 31-32; USFWS 2017b, pp. 20-22, 31-34). Therefore, the Service and our partners continue to monitor key demographic rates, balance our utilization of nonlethal and lethal management techniques to address conflict situations, and strengthen efforts to reduce the illegal killing of Mexican wolves (USFWS 2017b, pp. 31-34; USFWS 2019, entire; USFWS 2022b, pp. 30-42).

We note that as of April 1, 2022, we have documented 13 released wolves surviving to breeding age in the MWEPA that contribute to meeting the genetic objective. Also, over the last 4 years (2018-2021), we have seen a steady increase in gene diversity (from 74.54 to 76.23) and a decrease in mean kinship (a measure of the relatedness of individuals in a population to each other) (from 0.2546 to 0.2377), suggesting that our efforts to improve the genetic status of the population are beginning to exert a positive effect. As of August 17, 2021, both of these metrics are at their best values since 2010, when gene diversity measured 76.47 and mean kinship measured 0.235 (Scott et al. 2022, 2020, 2019; Siminski and Spevak 2011-2017; USFWS files). We expect to continue documenting the number of released wolves that survive to breeding age, including their reproductive activity, and to track population-level genetic metrics to validate improvements in the genetic status of the population.

Additional discussion of our rationale for these revisions is provided in the proposed rule (86 FR 59953, October 29, 2021, pp. 59959-59963).

The Mexican wolf experimental population is located in the MWEPA, as designated in the 2015 10(j) rule (80 FR 2512, January 16, 2015, p. 2558). The boundaries of the MWEPA are the portions of Arizona and New Mexico that are south of Interstate Highway 40 (I-40) to the international border with Mexico (see map at 50 CFR 17.84(k)(4)). The boundaries of the MWEPA are consistent with the recovery strategy established in the revised recovery plan, and the MWEPA is wholly geographically separate from any nonexperimental populations of the same (sub)species, as described in the proposed rule (86 FR 59953, October 29, 2021, pp. 59963-59964).

The MWEPA is a large area in Arizona and New Mexico that includes Federal, State, Tribal, and private land. It contains three managements zones, Zone 1, Zone 2, and Zone 3, that provide areas for initial release, translocation, and occupancy of Mexican wolves (see definitions at 50 CFR 17.84(k)(3) and the map of the MWEPA designated area at 50 CFR 17.84(k)(4)).

The USFWS and our partners release Mexican wolves into the MWEPA using several different management strategies, including the cross-fostering of captive pups into wild dens as a form of initial release; the initial release of adults or sub-adults individually, as pairs with and without pups, or as multigenerational packs; and translocations of wild wolves from one location to another. We intend to continue releasing Mexican wolves from captivity into the MWEPA primarily to increase the gene diversity of the experimental population as necessary to achieve our genetic objective and alleviate genetic threats to the population. In addition, we may release or translocate wolves for other management purposes such as replacing a mate for a breeding pair due to a wolf mortality or transferring wolves to Mexico. We provide additional detail about our release procedures in the proposed rule (86 FR 59953, October 29, 2021, p. 59964), including our procedures to utilize permanent identification marks and radio-collars to identify Mexican wolves in the MWEPA and differentiate them from wolves that may disperse from other gray wolf populations.

We intend to manage the MWEPA population to achieve the recovery criteria in the revised recovery plan for a population of Mexican wolves in the United States (USFWS 2017b, pp. 18-25; 86 FR 59953, October 29, 2021, p. 59965). The following information is summarized from our proposed rule, which can be referenced for additional supporting information (86 FR 59953, October 29, 2021, pp. 59965-59967).

Adverse effects on the captive population of Mexican wolves will not occur from the release of captive wolves to the MWEPA because the captive population is managed specifically to support the reintroduction of wolves to the wild and remains capable of supporting both the U.S. and Mexico reintroduction efforts through the release of surplus wolves (Scott et al. 2022, entire). Adverse effects to the wild population in Mexico will not occur because we do not rely on, nor have we conducted any, translocation of wolves from Mexico into the MWEPA.

The MWEPA has demonstrated that it is an established population with a high likelihood of survival. In particular, in the last 6 years under the management provisions of the 2015 10(j) rule, the population has grown steadily in size to its current minimum population size of 196 wolves. The Service's Mexican Wolf Recovery Program has transitioned from its previous focus on preventing the extinction of the Mexican wolf (USFWS 2010, p. 79) to pursuing a binational recovery strategy that we intend to achieve within two to three decades (USFWS 2017b, pp. 28-29).

The MWEPA population contributes to the binational recovery of the Mexican wolf because it serves as the population that counts toward the recovery criteria in the revised recovery plan for a population in the United States. The revisions in this rule bring the management of the MWEPA into alignment with our recovery strategy and criteria for the Mexican wolf in the revised recovery plan to ensure that the experimental population contributes to the long-term conservation and recovery of the Mexican wolf.

Consistent with our findings in the past (63 FR 1752, January 12, 1998, p. 1755; 80 FR 2512, January 16, 2015, p. 2551), we do not foresee that the introduced population will be adversely affected by existing or anticipated Federal or State actions or private activities because although some actions or activities may affect individual wolves, these effects will not hinder the growth or distribution of the population or its ability to achieve the demographic and genetic objectives established in this rule, as described in our proposed rule (86 FR 59953, October 29, 2021, p. 59966).

The following requirements are summarized or expanded upon from our discussion in the proposed rule (86 FR 59953, October 29, 2021, pp. 59967-59970):

The location of the experimental population is the MWEPA, as defined at 50 CFR 17.84(k). We can identify Mexican wolves based on the permanent identification marks we give them prior to release, by radio collar, DNA analysis, or visual observation.

Essential experimental populations are those whose loss would be likely to appreciably reduce the likelihood of survival of the species in the wild (50 CFR 17.80(b)). The Service defines “survival” as the condition in which a species continues to exist in the future while retaining the potential for recovery (USFWS and NMFS 1998, p. xix). Inherent in the definition of “essential” is the effect the potential loss of the experimental population would have on the species (49 FR 33885, August 27, 1984, p. 49 FR 33890).

The ESA states that, prior to any release, the Secretary must find by regulation that such release will further the conservation of the species (16 U.S.C. 1539(j)(2)). Reintroductions are, by their nature, experiments, the fate of which is uncertain. However, it is always our goal for reintroductions to be successful and contribute to recovery. The importance of reintroductions to recovery does not necessarily mean these populations are “essential” under section 10(j) of the ESA. In fact, Congress' expectation was that “in most cases, experimental populations will not be essential” (H.R. Conference Report No. 835, supra at 34). The preamble to our August 27, 1984, final rule reflects this understanding, stating that an essential population will be a special case and not the general rule (49 FR 33885, August 27, 1984, p. 49 FR 33888). When the Service published the final rule for the MWEPA designation in 1998, we did not anticipate making another essentiality determination for the MWEPA in the future. However, the remand of the 2015 10(j) rule requires the Service to make a fresh essentiality determination because the geographic expansion of the MWEPA results in wolves occupying new areas that were not contemplated for wolf occupancy during the original essentiality determination. At the time of the original determination, we found the experimental population to be “nonessential” because the captive population provided a secure source of surplus animals for reintroduction and the primary repository of genetic material for the species; therefore, if the reintroduced wolves did not survive, additional reintroduction efforts could be taken if the reasons for failure were understood (63 FR 1752, January 12, 1998, p. 1754).

This rule determines that the experimental population in the MWEPA, as defined by the geographic revision and expansion of the MWEPA in the 2015 10(j) rule, is not essential to the continued existence of the Mexican wolf in the wild under section 10(j) of the ESA. We reference our proposed determination (86 FR 59953, October 29, 2021, pp. 59967-59969), and offer the following rationale to clarify the information we relied on in our determination.

Mexican wolves currently occur in two locations in the wild: in the MWEPA in the United States, and in the Sierra Madre Occidental in northern Mexico, where the population numbers around 45 wolves in 2022. Reintroduction efforts in Mexico have been underway for over a decade, demonstrating sustained effort to establish and manage a wild population that contributes to recovery under the ESA. Mexico continues to focus on releasing wolves to the wild (from captivity or translocated from the MWEPA) and monitor natural population growth and expansion toward achieving the recovery criteria in the revised recovery plan. If the Mexican wolf population in the MWEPA were lost, Mexican wolves would continue to persist in the wild with Federal legal protection from Mexico. Thus, the existence of a protected wild population outside of the MWEPA is one of the factors in our determination that the experimental population is not essential to the continued existence of the Mexican wolf in the wild.

The second, and equally important, factor in our determination is our expectation that we could restart a population in the MWEPA or elsewhere in suitable habitat in the United States if the unexpected loss of the MWEPA were to occur. Our expectation is supported by our history—that is, the experiment to reintroduce Mexican wolves to the wild, which we began in 1998 as part of the species recovery effort under section 10(j) of the ESA, has demonstrated success and is repeatable. Several pieces of information influence our expectation that a future re-reintroduction is feasible and, therefore, support a nonessential determination, including the following:

If the unexpected loss of the MWEPA population were to occur, the Service and our partners have the knowledge and logistical capability to re-start the population and manage it to contribute to the long-term conservation and recovery of the Mexican wolf. To start, the Mexican wolf is a well-known subspecies for which we have gained first-hand biological and ecological knowledge for more than two decades. We have observed, monitored, and analyzed wolves' natural behavior in the wild such as the establishment of territories, dispersal, reproduction, survival, and mortality. We have reported our findings throughout the course of the reintroduction and recovery effort, including program reviews (Paquet et al. 2001, entire; AMOC and IFT 2005, entire), recovery plans (USFWS 1982; USFWS 2017a; USFWS 2017b), regulatory documents ( e.g., 80 FR 2488, January 16, 2015; 80 FR 2512, January 16, 2015), environmental impact statements (USFWS 1996, entire; USFWS 2014, entire; USFWS 2022a, entire), and annual progress reports covering every year of the reintroduction (USFWS files). In addition, significant scientific research has been conducted regarding many facets of Mexican wolf biology and ecology ( e.g., Parsons and Nicholopoulos 1995, entire; Hedrick et al. 1997, entire; Reed et al. 2006, entire; Asa et al. 2007, entire). Because of our experience establishing and maintaining a population and the extent of supporting biological information available, we understand the needs of this subspecies sufficiently to undertake another reintroduction.

In addition, since 1998, we have learned about the communities in which the reintroduction and recovery effort takes place. Within this context, we have demonstrated our ability to explore solutions to a variety of challenges and to adaptively manage the reintroduction effort. We have:

• Tested and utilized different wolf release techniques, including hard and soft releases; release of adults, pairs, or packs; and cross-fostering puppies;

• Adapted our response to conflicts based on the demographic status of the experimental population and the needs of local communities, including our use of management tools such as translocations, removals, and novel nonlethal techniques;

• Provided animal husbandry in captive, semi-captive, and wild settings, including vaccination protocols to reduce the risk of diseases in Mexican wolves or the transfer of diseases to humans;

• Developed and expanded collaborative recovery efforts with partners in both the United States and Mexico;

• Sustained budgetary and staffing capacity for the reintroduction effort for several decades, including public outreach programs and stakeholder engagement;

• Championed and participated in financial programs to reduce economic impacts on livestock operators; and

• Adjusted the regulatory, policy, and guidance frameworks that provide the structure for the reintroduction and recovery effort.

Therefore, we have the capability to construct a management approach for a new reintroduction (again, assuming understanding of the reasons for the loss of the current population) and adjust it as necessary to support the release, establishment, growth, vigor, and maintenance of an experimental population within a human-dominated landscape. Specifically, we expect to release packs, pairs, and individual animals over several years to re-establish the population as appropriate to the circumstances. While the release of adult wolves is not currently our preferred release strategy, we recognize that the release of adult wolves would be necessary and appropriate if we were restarting a reintroduction, and we would work with our partners to select preferred release sites. We do not expect to achieve a population of the current size (close to 200 wolves) within the first few years, but rather seek to establish a base of released wolves representative of the gene diversity available in captivity. We will continue releases as necessary and, with our partners, support the natural growth and expansion of the population through the use of a variety of adaptive management strategies and tools such as those we have utilized since the reintroduction began.

If we were to conduct a new reintroduction due to the loss of the current population, we would rely on the availability of captive Mexican wolves for release to the wild. Therefore, the capability of the captive breeding program to provide wolves to re-start the population and provide long-term support of the reintroduction over at least several decades is an important factor in our essentiality determination. Our assessment of the capability of the captive breeding program rests first on the mission of the Mexican Wolf Species Survival Program (“SSP”), which is to support the reestablishment of the Mexican wolf in the wild through captive breeding, public education, and research. The dedication of this program to reestablishment supports our expectation that participating facilities will support and engage in the new reintroduction effort (Scott 2022, pers. comm.). Second, the logistical capacity of the captive breeding program has increased significantly since 1998, such that it is more capable of producing surplus wolves for release to the wild today than it was when we first designated the MWEPA over two decades ago. In 2021, the captive program housed 387 wolves in 62 facilities (Scott et al. 2022, p. 7), compared to fewer than 200 wolves in less than 50 facilities in 1998. The physical capacity of the captive breeding program could continue to expand with the addition of new facilities, which would further increase the number of surplus wolves produced as well as benefitting ongoing genetic management needs (Scott et al. 2022, p. 10). In addition to its expanded physical capacity, the SSP has benefitted from over four decades of husbandry experience and research across many participating institutions, again supporting our contention that the captive breeding program has the capacity and capability to re-start and sustain support for a wild population.

Importantly, one question that is central to the potential to restart a reintroduction of the Mexican wolf in the future is whether surplus wolves produced by the SSP would have sufficient gene diversity to establish a genetically robust population. This concern stems from the slow loss of gene diversity that has occurred, and will continue to occur, in the captive population because no new founders are available to add diversity (Scott et al. 2022, pp. 9-10). This is a difficult question to answer because a finite threshold of gene diversity below which reintroduction would not be possible for Mexican wolves has not been defined or observed by the Service, the SSP, or other researchers. In other words, we recognize that re-starting a reintroduction at some point in the future when the captive population has lower gene diversity than its current level (Scott et al. 2022, p. 9) means that genetic concerns will be amplified more than they are today, but that does not equate to infeasibility. Rather, surplus wolves would be available to release to the wild that would still represent the available gene diversity remaining from the founding wolves and the three integrated captive lineages. In fact, a population could be restarted today that would potentially be equally or more genetically diverse with lower overall mean kinship and better representation of the three Mexican wolf lineages than the first reintroduction effort simply by the selection of different wolves and different management strategies in the wild when the population was small. In addition, genetic management strategies, such as an expansion of the number of breeding pairs in the captive population (Scott et al. 2022, p. 10), the use of stored genetic material from captive wolves (such as frozen semen and oocytes (Scott et al. 2022, appendix 9, pp. 82-85)), or the use of other novel reproductive or genetic technologies, could be used to slow the loss of gene diversity in captivity over time and offer robust future reintroduction scenarios with appropriately diverse surplus wolves.

As we have discussed throughout this rule, we expect the MWEPA to further the conservation and recovery of the Mexican wolf by contributing to the persistence of a population that achieves specific recovery goals for the subspecies. However, we consider the MWEPA nonessential because the loss of all reintroduced Mexican wolves within the MWEPA is not likely to appreciably reduce the likelihood of survival of the subspecies in the wild. Our determination is based on the existence of a second wild population of Mexican wolves, our increased capability to initiate and maintain a reintroduced population of Mexican wolves, and the ongoing maintenance of the captive population.

We have developed a section 10(a)(1)(A) permit under section 10 of the ESA to allow for certain activities with Mexican wolves that occur both inside and outside the MWEPA. If Mexican wolves travel outside the MWEPA, we intend to capture and return them to the MWEPA or place them in captivity. This approach is consistent with the revised recovery plan, which directs Mexican wolf recovery south of Interstate Highway 40 (I-40) in Arizona and New Mexico. Mexican wolves are managed south of I-40 under this rule, which provides management flexibility and contributes to the conservation and recovery of the Mexican wolf. Mexican wolves that move outside of the geographic boundaries of the MWEPA are fully endangered and the allowable forms of take provided for in this rule to address conflict situations are not available. Livestock operators and the public cannot haze or harass wolves outside of the MWEPA without violating the ESA.

As described at more length in our October 29, 2021, proposed rule, the following evaluations of the MWEPA population and the rangewide progress of the Mexican wolf toward recovery will be forthcoming:

• Evaluation of this revised rule 5 years after rule implementation begins ( i.e., one evaluation based on data through the 2027 annual population count, synchronized with the 2027 recovery plan evaluation, below, for publication in 2028);

• MWEPA quarterly reports ( i.e., four reports per year, annually, ongoing);

• MWEPA annual reports ( i.e., one report per year, annually, ongoing);

• 5-year status evaluations of the Mexican wolf subspecies pursuant to section 4(c)(2) of the ESA ( i.e., one report every 5 years, with next evaluations occurring in 2023 and 2028, ongoing);

• 5- and 10-year recovery progress evaluations, pursuant to the revised recovery plan ( i.e., one report for each evaluation, using data through 2022 and 2027, with publication in 2023 and 2028, respectively); and

• A phasing evaluation for western Arizona pursuant to 50 CFR 17.84(k)(9)(iv)(D) ( i.e., one evaluation in 2023).

In accordance with 50 CFR 17.81(d), to the maximum extent practicable, this rule represents an agreement between the USFWS, the affected State and Federal agencies, and persons holding any interest in land that may be affected by the establishment of this experimental population. In addition to the information provided in the proposed rule (86 FR 59953, October 29, 2021, p. 59970), we also describe our coordination and consultation efforts in the final supplemental environmental impact statement (FSEIS) (USFWS 2022a, pp. 164-166).

From April 15 to June 15, 2020, we conducted a public scoping process under the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq. ) based on our intent to modify the 2015 final 10(j) rule (see 85 FR 20967, April 15, 2020). We received more than 87,000 public comments during scoping. We responded to these comments in the draft supplemental environmental impact statement (DSEIS), appendix G (USFWS 2021, pp. 182-227). We subsequently opened a 90-day public comment period on the proposed 10(j) rule and DSEIS on October 29, 2021 (86 FR 59953). During the public comment period, we held three public information sessions and two public hearings; approximately 400 members of the public attended and participated in these events. We received more than 82,000 public written and oral comments during the comment period. In total, we received more than 169,000 comment submissions over the course of the two comment periods.

As part of this rulemaking, we have carefully reviewed the requirements of NEPA and its regulations (Council on Environmental Quality regulations at 40 CFR 1502.9); this final rule, as well as the process by which it was developed and finalized, complies with all provisions of the ESA, NEPA, and applicable regulations. We identified public comments specific to the NEPA process and provided responses to these issues in the FSEIS rather than in this rule; in addition, we carried the scoping comments and responses forward from the DSEIS to the FSEIS because the scoping comments and responses addressed a number of issues that were brought up subsequently during the public comment period on the DSEIS and proposed rule (USFWS 2022a, pp. 188-240). In a few cases, a comment was equally pertinent to the rule as well as the FSEIS, in which case we have included our response in this rule as well.

Below, we provide synthesized, substantive comments pertinent to the rulemaking and our responses. We considered substantive comments to be those that provided information relevant to our requested action such as data, pertinent anecdotal information, or opinions backed by relevant experience or information, and literature citations. Due to the similarity of many comments, we combined multiple comments into a single, synthesized comment for many issues. We considered non-substantive those comments that expressed a statement or opinion without providing supporting information or relevance; restated data or information that we already have but without an alternate perspective to consider; restated elements of the March 31, 2018, order; or were beyond the scope of our proposed revisions as defined during scoping. Comments from peer reviewers, Federal agencies, and State agencies are grouped separately. Comments from local governments are included in the general public comments. We did not receive any comments from Native American Tribes. All substantive information provided during the comment periods, including the public hearings, has either been incorporated directly into this final determination or is addressed below.

In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited and received expert opinions from five knowledgeable individuals with expertise that included a Doctor of Philosophy degree (Ph.D.) or Master of Science degree (M.S.) with significant experience in wildlife ecology or a related field; expert knowledge of wildlife biology and management, demographic management of mammals (especially carnivores), population modeling, small population management, genetics of small populations, captive breeding and reintroduction of a species to the wild, scientific literature on wolves or other carnivores, and/or human dimensions or socioeconomic considerations related to large carnivore management; and prior experience as a peer reviewer for scientific publications.

We asked peer reviewers to respond to seven scientific questions regarding the proposed revision to the regulations for the experimental population designation of the Mexican wolf, as appropriate to their expertise, in addition to providing their general review. We reviewed all peer review comments that we received. Below, we provide a summary of the peer reviewers' answers to our seven questions, as well as our responses to singular issues raised by peer reviewers that we consider having particular bearing on our ability to support the final rule with the best available information. In addition to the summary and responses below, we have incorporated their information and recommendations into this final rule as appropriate.

1. A 10(j) rule may provide flexibility for managing a reintroduced species but must foremost further the conservation of the species. Does the balance of the proposed rule, in total, contribute to the conservation and recovery of the Mexican wolf?

Four peer reviewers answered this question. One peer reviewer did not think the proposed rule, in total, contributes to the conservation and recovery of the Mexican wolf. This reviewer stated that the proposed rule relies heavily on Mexico and private entities to contribute to recovery, and that designating and managing the population as nonessential is a high-risk approach. One reviewer agreed that the proposed rule would contribute to the conservation and recovery of the Mexican wolf, but identified concerns with the methodologies used to depict the population's trajectory and to measure gene diversity, and also identified the need for additional clarity related to allowable forms of take outside of the MWEPA, the relationship between the proposed restricted forms of take and illegal take, and whether the program's human-wolf conflict measures are effective in reducing illegal take. Another reviewer agreed that all of the proposed revisions would contribute to the conservation and recovery of the Mexican wolf and cited recent population growth and the use of supplemental feeding and cross-fostering techniques as indications of, or contributing factors in, the Service's recent progress toward demographic and genetic recovery goals. The fourth reviewer responded that in total the proposed rule would contribute to the conservation and recovery of the Mexican wolf but caveated that “contribute to” is not synonymous with “ensure.”

2. Are the expected effects of the proposed revisions on the overall biological status of the experimental population adequately described and supported by relevant analysis? If not, what information is missing and how is it relevant?

One reviewer stated that the population viability analysis in the revised recovery plan relied on by the Service as the foundation for establishing the proposed population and genetic objectives is likely very robust for predicting population growth at low population densities. However, this reviewer suggested updating the model in 5 to 10 years with updated vital rates and incorporating density-dependent effects to address the potential for the model to underestimate extinction probabilities and overestimate genetic diversity in the long term, because the data used in the population viability model (Miller 2017, entire) may overestimate the proportion of females breeding and do not include a link between density and reproduction. This same reviewer also cautioned that removal of wild-born wolves could impact gene diversity if those wolves had advantageous mutations.

Another reviewer stated that the proposed population objective is an improvement from the population objective in the 2015 10(j) rule and provided critique that the program's current methodology to document minimum population size annually may not provide an accurate and precise population estimate against which to measure progress toward the proposed population objective.

A third reviewer responded to this question by reiterating a concern that the methodology used to document the minimum population size may be inadequate to determine whether the population's growth rate is stable or increasing, as necessitated by the proposed population objective. This reviewer provided recommendations on several methodologies and statistical models to estimate survival or other demographic parameters for the Service to consider and stated support for updating the population viability model used in the revised recovery plan during the 5-year evaluation of the recovery plan. The reviewer also questioned how the Service arrived at the genetic objective of 22 released wolves surviving to breeding age based on the population viability model in the revised recovery plan and cautioned against using model results as actual targets rather than as guideposts. This reviewer suggested that measuring genetic variation would be a more appropriate method to assess genetic diversity in the MWEPA than counting the number of released wolves that survive to breeding age. The reviewer discussed inbreeding and reduced fitness in Mexican wolves and suggested that allowing Mexican wolves to hybridize with other wolf ecotypes (gray wolves from other populations) may contribute to the future adaptive potential of the Mexican wolf.

The fourth reviewer stated that each of the proposed revisions should have a positive impact on population performance and that the expected effects of the revisions are adequately described, noting that the removal of an upper target for abundance is particularly important for long-term sustainability of the Mexican wolf. This reviewer noted that the inclusion of more than 15 years of Mexican wolf data in the population viability model and the selection of conservative values for model parameters add significant confidence to the model's predictive power for demographic and genetic uses. The reviewer noted that the habitat modeling by Martínez-Meyer et al. (2017) also substantively informs recovery efforts, while noting that updating the habitat model over time with information on population performance could address general concerns related to the reliability of habitat quality assessments that rely solely on presence data. This reviewer questioned why the Service did not use a direct measure of genetic diversity as a genetic objective and stated that the Service overstated the future conditions of the population in response to released wolves surviving to breeding age.

3. Does the proposed rule, including the allowable forms of take, allow for the experimental population to achieve the demographic recovery criterion for the United States in the Mexican Wolf Recovery Plan, First Revision (2017)?

One reviewer stated that the proposed rule does not allow for the experimental population to achieve the demographic recovery criterion because there is no numerical trigger to determine when different allowable forms of take are permitted. Another reviewer stated that the proposed reduction in take would have a positive effect on Mexican wolf recovery but would not address the problem of illegal take, which accounts for the majority of human-caused mortality for the Mexican wolf. This reviewer recommended using a “similarity of appearance” listing for coyotes within the MWEPA under section 4(e) of the ESA. A third reviewer stated that they believe the proposed rule would contribute to achieving the recovery criterion in the revised recovery plan based on the recent annual increases in the MWEPA population, the Service's ongoing efforts to reduce conflict and increase support for the recovery effort, and the removal of the upper threshold on wolf abundance.

4. Does the proposed rule, including the allowable forms of take, allow for the experimental population to achieve the genetic recovery criterion for the United States in the Mexican Wolf Recovery Plan, First Revision (2017)?

One reviewer stated that the proposed revisions to the allowable forms of take may not avoid the potential for negative impacts to genetic diversity because the revisions consider only released wolves, they do not consider wild-born wolves with new genetic mutations that may be important to the population's genetic diversity, especially its heterozygosity. Another reviewer restated concern for whether the proposed genetic objective is valid compared to other ways to measure the genetic status of the population. A third reviewer did not mention the effect of the take provisions on the ability of the proposed rule to achieve the genetic criterion beyond a general statement acknowledging the Service's efforts through memoranda of understanding (MOUs), education/outreach, and diversionary feeding to reduce conflicts that could lead to wolf removals. This reviewer stated that the success of cross-fostering also provides evidence that the genetic criterion will be met. This reviewer reiterated concern that the genetic objective is not a direct measure of genetic health but stated that the genetic objective will likely lead to the genetic benefits the Service is expecting and is easy to quantify and measure.

5. Is the information, data, and analysis we provide to substantiate our essentiality determination based on the best available science? Is there scientific information or data that we did not include in our essentiality determination that is relevant and should be considered?

One reviewer stated that the logic behind designating the MWEPA as nonessential is not well supported and is a high-risk approach due to the other wild population occurring in Mexico and the captive population being run by private entities that are not legally bound to recover the Mexican wolf. Another reviewer agreed that the MWEPA population could likely be restarted from captivity but suggested the Service consider an essentiality designation because the growth of the second wild population of Mexican wolves in Mexico has been fairly stagnant and the reintroduction effort is very expensive. This reviewer also questioned whether the nonessential determination limits the ability of the Service to reintroduce the Mexican wolf outside of its historical range. A third reviewer communicated their impression that the concept of essentiality is convoluted and ambiguous, and that the Service was unclear in its discussion whether we were referring to the subspecies at-large or the Mexican wolf in the wild. This reviewer stated that given the emphasis on the “three Rs” (resilience, representation, and redundancy) in the recovery of the Mexican wolf, considering the MWEPA as nonessential to the persistence of wild wolves seems tenuous, although according to strict legal definitions may be true.

6. Do the proposed revisions, and the rule as a whole, allow for flexible and responsive management of conflict situations that can address local community concerns related to social and economic impacts while still providing for the conservation and recovery of the Mexican wolf?

One reviewer stated that the rule allows for flexible and response management of conflict situations but may not adequately provide for the conservation and recovery of the Mexican wolf. Another reviewer stated that the management activities provided for in the rule are generally consistent with recommendations from the literature on reducing wildlife conflicts to support conservation. This reviewer stated that the scientific literature contains mixed evidence as to how depredation compensation rates should be determined, with some literature suggesting that full compensation reduces incentives for producers to undertake proactive measures to reduce conflicts and therefore may lead to more depredations, while other literature suggests that additional indirect costs should be incorporated to fully compensate losses. A third reviewer stated that the conflict management efforts appear to be comprehensive, and an evaluation may assist in determining which components of the program are most effective. The fourth reviewer stated that the answer to the question is values-based and therefore difficult to predict. This reviewer gave the example that the rule may make demonstrable progress toward reestablishing Mexican wolves but still may not satisfy certain stakeholders. However, this reviewer stated that, collectively, the proposed revisions and the rule would allow for flexible and responsive management to address conflicts, further stating that the rule clearly attempts to minimize significant impacts and to produce realistic predictions for various expenses, recognizes the need for adaptive management and maintaining broad support for recovery efforts, and demonstrates continued effort to pursue funding and partnerships to ensure the overall success of the program.

7. Is the rule based on the best available biological and social science? Are there demonstrable errors of fact or interpretation of data or scientific information in the proposed rule?

One reviewer stated that using a geometric mean, rather than the arithmetic mean, would better capture population performance in the demographic recovery criterion and population objective. Another reviewer provided recommendations on new analytical methods to evaluate data that could lead to improved inferences and management decisions.

Several reviewers commented on the proposed nonessential designation. One reviewer stated that reliance on a captive population to replenish wild populations after an extinction event does not represent the survival of the species in the wild or recovery across ecologically and geographically diverse areas in the subspecies' range, as recommended in the recovery strategy in the revised recovery plan. This reviewer further cautioned that the proposed rule considers wolves in captive-breeding facilities and in Mexico to be “populations,” but this is a very high-risk approach because private facility participation in captive breeding is voluntary (facilities are not legally bound to recover Mexican wolves), and the Mexican government is not bound to U.S. law. Additionally, this commenter stated that more than 90 percent of the remaining wild Mexican wolves inhabit the MWEPA, and it is likely that new genetic mutations have emerged, providing an evolutionary avenue for locally adapted Mexican wolves. Because these alleles do not exist in the captive population or in Mexico's population, the reviewer considers the MWEPA essential.

One reviewer stated that while there were no observable errors of fact or interpretation with the social science data or literature presented by the Service, there is additional literature related to cattle prices, indirect effects from livestock depredations, and management costs that may have relevance for the determination of economic impacts of the proposed revisions. This reviewer provided specific examples of cattle price variability to highlight the variation in economic impacts experienced by an individual producer from a depredation and the management decisions that follow. This reviewer also provided information about the potential indirect economic effects of depredations and noted that the Service had accounted for some, but not all, possible indirect effects in its analysis, while also noting that a systematic accounting of all possible indirect effects is not available in the literature. The reviewer stated that there is insufficient evidence to establish the extent of indirect effects. The reviewer also provided examples of management costs associated with depredation activity, including fence maintenance and repair from livestock prone-to-flight behavior, veterinary costs of injured animals, and other management interventions such as herding dogs and additional riders to check herds.

Another reviewer stated that the proposed rule is arguably based on the best available science, although that does not mean there may not be debate in the scientific community over the choice of models, data to populate them, statistical evaluations, and interpretation of results. This reviewer clarified that no single issue or issues collectively mentioned by the reviewer would result in the inability to achieve recovery. This reviewer suggested the Service add a description of our annual count methods because that is how the Service will assess progress toward the population objective, recommended that the Service conduct a cost-benefit analysis of diversionary feeding related to effective law enforcement levels or other actions, and questioned whether the potential impacts of the border wall on Mexican wolf recovery, other than on the probability of wolf dispersal across the border, were considered.

Comment: The MWEPA population estimates are based on an ad hoc estimation approach (USFWS 2019, pp. 21-22) and these point estimates are used to depict population trajectory and estimate population growth rate. There is no measure of the precision of the estimates; this could influence estimates of extinction risk.

Our response: We conduct an annual population minimum count in the MWEPA. Our methods for conducting these counts have been consistent since 2008, and thus should be comparable over time and reflect the population trend. The minimum counts represent wolves and/or wolf sign observed between November and early February each year. Because we utilize a minimum count, we consider our results to serve as a conservative population estimate ( i.e., the true population is above the reported count). Thus, extinction risk is appropriately conservative and may be slightly overestimated based on utilizing minimum counts. For small populations of mammals, population counts are likely the best method; however, we also recognize that research is appropriate at this stage of the MWEPA reintroduction (196+ wolves) to determine appropriate population estimate methods in the future for a larger population of wolves ( i.e., more than 300).

Comment: MWEPA population estimates are essentially point estimates of the “minimum number known alive,” and their validity, as actual population estimates, is dependent on whether the probability of detection each year remains constant. These counts are an index of population size, yet they are used to estimate population growth rate, but there are two issues here. As mentioned, it is not known if the probability of detection between years is constant (in this case it is assumed), and there is no measure of precision around the count, so whether the count of population size between years actually differs is obscured.

Our response: See our response above. In addition, for small populations of mammals that are hard to detect through sightability models or double counts from the air ( e.g., wolves avoid detection from helicopters by simply not moving, and it is only through radio telemetry that we are able to find collared wolves or the uncollared wolves associated with them), minimum population counts are likely the best method to determine or estimate population size. We have had very limited success attempting to grid areas with helicopters to detect wolves without radio telemetry, even with food caches placed in areas of known wolf occupancy. Thus, we rely on tracks, scats, and remote cameras to document uncollared packs.

Comment: Population estimates are made at the end of the year and include all age classes; the number of adult and subadult wolves should be presented separate from the number of pups surviving until the end of the year.

Our response: We document the number of pups surviving until the end of the year during our annual population count. We are currently updating the content and format of our annual reports (for 2021 and subsequent years) and will consider providing this information in future annual reports.

Comment: The genetic objective of releasing 22 wolves does not ensure that these wolves actually breed and contribute their allelic diversity to the wild. Despite the realistic probabilities used to predict the success of released wolves contributing their genes to the population, they are still just predictions and should be stated as such.

Our response: We have clarified our language to describe the future conditions of the population where they are speculative.

Comment: The continued monitoring of the genetic variation present in the wild Mexican wolf populations would be a more appropriate method to assess genetic diversity and its erosion over time, compared to assuming that when a certain number of wolves reaches breeding age they will mate, their offspring will survive and reproduce, and genetic diversity will be maintained.

Our response: The genetic objective we are establishing serves as an indicator that we have transferred a large degree of the gene diversity available in captivity to the wild population. Our genetic monitoring will continue to include multiple components, including the number of released wolves surviving to breeding age and their reproductive success when known, as well as genetic metrics for the population such as gene diversity and mean kinship. As stated in our responses above, we recognize that we need to adapt our current genetic and population monitoring strategies in the near future to address logistical issues associated with monitoring a growing population and ensuring our methods continue to produce reliable estimates to track progress toward recovery. We are beginning to explore different monitoring schemes and will discuss relevant findings or decisions in upcoming program reviews.

Comment: Permitting or facilitating adaptive introgression may be necessary to ensure the adaptive potential of the MWEPA population. Is the Service planning an introgression zone between gray wolves in Colorado and Mexican wolves?

Our response: Genetic monitoring of the MWEPA population will continue to be necessary to ensure that genetic threats to the Mexican wolf are lessened and alleviated. We currently collect and report genetic data on individual wolves and the population based on the known pedigrees of collared wolves and blood and scat samples taken in the field; as explained in our responses above, we expect to modify our genetic monitoring scheme over time. We recognize adaptive introgression can be a useful genetic tool in certain situations. At the current time, the Service does not have any intention to initiate or allow adaptive introgression between gray wolves and Mexican wolves as part of our genetic management of Mexican wolves. As of April 2022, Colorado Parks and Wildlife has not solidified its gray wolf reintroduction strategy; therefore, it is difficult to determine the timing and extent of future dispersal contact that may occur between gray wolves and Mexican wolves or the potential genetic effect of this contact on Mexican wolves. As more information becomes available, we will consider the implications in our management and monitoring strategies.

Comment: Where did the policy of releasing 22 wolves that attain breeding age, which are then assumed to contribute allelic diversity to the wild population, originate from?

Our response: Miller (2017) explored various population viability scenarios that demonstrated that 22 released wolves surviving to breeding age, with some portion of surviving animals breeding, would achieve representation in the wild of 90 percent of the gene diversity available in captivity (see table 16 in Miller 2017). Specifically, the “[EISx2]” scenarios resulted in gene diversity retention relative to the SSP for the MWEPA of 0.897-0.901, which is effective in achieving the Service's objective to ensure the wild population represents 90 percent of the gene diversity in captivity.

Comment: It appears that inbreeding depression or reduced fitness is likely occurring in the MWEPA. A reanalysis of data that explores the effect of the inbreeding coefficient of wild pairs on whether they successfully produce a litter, on litter size, and pup survival is warranted with a more up-to-date dataset (1998 to 2021).

Our response: The Service agrees that reanalysis of inbreeding depression will be a necessary task during the recovery of the Mexican wolf. We will consider a reanalysis of inbreeding depression during the 5- or 10-year recovery plan evaluations in order to guide the ongoing recovery effort; however, we have not solidified our plans for the evaluations at this time. The inbreeding analysis conducted in association with the revised recovery plan and supporting biological report (USFWS 2017b, p. 33 and appendix C) is based on the largest, most comprehensive, and up-to-date data set available (89 litters over 16 years). It suggests that inbreeding may affect the probability of producing a litter but is not significantly affecting litter size, as previously thought (Fredrickson et al. 2007).

Comment: Illegal take of Mexican wolves has been high, particularly in the last decade. Although there is a comprehensive human-wolf conflict management program in place, its effectiveness or relation to allowable forms of take is not clear; will restricting forms of legal take reduce illegal take?

Our response: We have not conducted a formal assessment of our human-wolf conflict management strategies at this time to determine their individual efficacy in reducing human-caused mortality of Mexican wolves. The purpose of the take restrictions in this rule is to ensure that the management flexibility authorized in the MWEPA supports the long-term conservation and recovery of the Mexican wolf, and that the likelihood of take is reduced during conflict situations in which other management options are available. We note that we are currently revising the revised recovery plan to diversify and strengthen the recommended actions the Service and our partners may implement to reduce human-caused mortality. We will assess the efficacy of our efforts to reduce human-caused mortality in the 5-year review of the revised recovery plan in 2023.

Comment: Under section 4(e) of the ESA (“Similarity of Appearance Cases”), the Secretary of the Interior can deem another species as endangered or threatened if that species is so similar in appearance that curtailing take of that species would help conserve the endangered species. In this case, preventing take of coyotes ( Canis latrans ), which can be confused with the Mexican wolf, may help curtail illegal take of wolves.

Our response: A section 4(e) “similarity of appearance” listing would be a separate regulatory action under the ESA and is therefore beyond the purview of this rule.

Comment: Cross-fostering and supplemental feeding appear critical to achieving genetic goals. Carroll et al. (2019) argued that supplemental feeding could mask the effects of inbreeding; however, relevant field data indicate survival of wolf pups that are supplementally fed is likely enhanced and this methodology will likely increase the rate at which 22 individuals are integrated into the population.

Our response: We agree. We supplementally feed most packs (a few packs are logistically too difficult to feed) that have cross-fostered pups to increase the likelihood that cross-fostered pups survive.

Comment: Carroll et al. (2019) criticized the population viability model for maintaining a long-term reliance on supplemental feeding because it provided a demographic boost that was important in achieving demographic goals, but Miller (2017) also demonstrated that if ultimately it is determined that supplemental feeding is inappropriate, there are other ways to maintain growth in the wolf population ( e.g., boosting adult survival).

Our response: We agree. We are committed to maintaining the growth of the Mexican wolf population until we reach our recovery goals through a variety of management actions; we expect to reduce supplemental or diversionary feeding in the future as we scale back management support of the population in association with meeting recovery goals and documenting that threats have been alleviated.

Comment: The population viability model (Miller 2017) did not include density dependence or a link between density and reproduction. The model results may be reliable for near-term population projections (5 to 10 years) but likely underestimate extinction probabilities and overestimate genetic diversity in the long term, because they overestimate effective population size from too many breeding females. The population viability model could be revised in the future by updating the vital rates populating the model and including density-dependent effects and group sizes, particularly if density increases.

Our response: Miller (2017) did not include density-dependent reproduction in the model because there is no scientific evidence supporting a link between the number of pups born, their survival, and population density (p. 6). The model did include a density-dependent mortality function but acknowledged that Mexican wolf density in the MWEPA is low enough that density-dependent effects on mortality are not likely to occur (ibid, p. 7). We intend to revisit the population viability model in the future and will investigate data for any demonstrable changes from previous projections. For instance, we have observed higher annual growth rates than predicted by the model.

Comment: The proposed rule states that if no released wolves were removed during the prior year, then any removals that were conducted would not negatively impact gene diversity. This may not be true. It depends on which wolves are removed; for example, removing diverse wild-born individuals could have a negative effect on gene diversity if those wolves have new, advantageous mutations.

Our response: We understand the perspective offered by the reviewer but consider it important to recognize that we may not always have the ability or information to determine whether a particular wolf has a new, advantageous mutation when we are trying to resolve a conflict situation. We have revised our language where relevant to ensure we do not suggest that wild wolves may not have valuable gene diversity. Our approach to count the number of released wolves surviving to breeding age in both the genetic objective and associated benchmarks is focused on the transfer of captive gene diversity to the wild and supporting the success of those wolves to reach breeding age.

Comment: Although Miller (2017) used population and vital rate estimates from Mexican wolves, estimates of survival of Mexican wolves were made using the Heisey and Fuller (1985) method, and this method has assumptions and sampling requirements that can be difficult to verify. Given the large number of wolves that have been radio-collared over the course of the recovery program, estimates of survival could be explored using more robust statistical models, such as Cox-proportional hazard models or known-fate models, or integrated population models. Such modeling approaches should be considered in subsequent analyses.

Our response: We will consider alternative analytical approaches in the future for estimating survival; however, the methods utilized are within scientific standards, particularly for a population with limited emigration or immigration (Miller 2017, appendix D, pp. 67-72).

Comment: Beyond decreasing the probability of wolf dispersal, were other potential implications of a border wall and the associated increase in human disturbance ( e.g., related to law enforcement) considered?

Our response: We did not consider the implications of the border wall during the development of the regulatory revisions in this rule because we do not think the border wall or associated human disturbance will affect the ability of the MWEPA to support a robust population of Mexican wolves. We agree that the border wall could affect wolf territory configuration and dispersal in localized areas near the border occasionally, but not to an extent that threatens the persistence of the population or its ability to achieve the population objective. Habitat along the border is typically unsuitable, or has low suitability, and we do not expect wolves to occupy this area consistently.

Comment: There does not appear to be a numerical trigger to distinguish when different allowable forms of take are permitted. The proposed rule would allow the population to be reduced to a low number as long as no released wolves are part of the allowable take. Recovery goals are both genetic and numerical; with no numerical threshold for when proposed allowable take is permitted or not, progress toward recovery could be hindered.

Our response: This rule does not include a numerical trigger that dictates the utilization of allowable forms of take in relation to population size, as our focus in this rule is to comply with the March 31, 2018, order to ensure that the expanded take flexibility authorized by the 2015 10(j) rule is protective of genetic diversity. We expect to adjust the amount of take allowed by the Service and conducted by the Service and our partners, through our management actions as needed, to ensure that adult wolf mortality remains below 25 percent (USFWS 2017a, pp. 20-22). We currently do not consider the level of take expected to occur through the three forms of take that are restricted in this rule to affect population demography (USFWS 2022a, p. 117).

Comment: Much of the rationale in the proposed rule's Regulatory Flexibility Act discussion is based on Ramler et al. (2014). This study was a non-random survey of 18 ranches and a correlation to calf weights. The subsequent assumptions in the proposed rule about the number of ranches affected are simple, as noted. The rule also states that effects on livestock production are not significant, and do not need to be addressed when not significant.

Our response: Ramler et. al (2014) found no evidence that wolf packs with home ranges that overlap ranches have any detrimental effects on calf weights. Primary factors that contributed to weight loss were determined to be associated with climate and individual ranch husbandry practices. However, the study did find that for ranches that experienced a confirmed cattle depredation by wolves, calves on average experienced a weight loss of approximately 22 pounds, or 3.5 percent of body weight. Ramler et. al (2014) was one of several studies used to estimate the indirect effects of wolf presence on weight loss due to associated stresses.

Comment: There is mixed evidence in the literature as to how compensation rates should be determined to be most effective at mitigating wildlife-livestock conflicts. Some argue that direct compensation programs may create a moral hazard problem (see e.g., Nyhus et al. 2005), which would imply that 100 percent (or higher) compensation reduces incentives for producers to undertake other risk-reducing management activities; thus, full compensation may lead to more depredations. In contrast, other literature suggests that compensations ratios need to be greater than 1 ( i.e., more than 100 percent compensation for confirmed depredations) to fully compensate producers for the economic impacts of wolves, including unconfirmed depredations and the indirect effect of depredations ( e.g., Ramler et al. 2014; Steele et al. 2013; Laporte et al. 2010; Sommers et al. 2010; Oakleaf et al. 2003).

Our response: We have followed, and will continue to follow, the available literature on this topic, which we agree suggests that different approaches may be relevant in determining adequate and appropriate depredation compensation and does not reach consensus. Livestock producers in the MWEPA currently have compensation programs available in Arizona and New Mexico, including compensation for confirmed depredations and access to collaborative nonlethal conflict avoidance tools and techniques.

Comment: To estimate the potential value of depredated livestock, the USFWS uses a 10-year weighted average of market values, where weights are determined by the proportion of depredated animals that are calves versus cows and prices per hundredweight (cwt) were based on 500-pound (lb) calves and 1,000-lb cows (USFWS 2021, p. 124). These assumptions result in an expected average value of $1,094.72 per depredated cow/calf based on 2020 dollars. This approach is not inherently flawed—it can provide a reasonable average estimate over long-time horizons—but it oversimplifies the cattle market and the potential economic impacts of a depredation of a specific animal at a specific time and place.

Our response: Our economic analysis presented data on cattle prices since 1996. Over that period, the price for cattle in 2020 dollars (per hundred pounds, or cwt) ranged from a low of $94.92 in 1998, to a high of $169.83 in 2014. The average price during this period was $117.50/cwt compared to the average price over the last 10 years (2010-2019), which we used in our analysis, of $134.45/cwt.

There are many independent factors affecting cattle prices on a yearly basis that lie beyond the control of ranchers. These include supply-side factors such as the quality and quantity of cattle from other areas and demand-side factors related to consumer choices. Independently, ranchers try to raise their optimal herd size based on local factors such as the cost of forage, labor, medical expenses, loan rates, and expected sales price. It is beyond the scope of our study to try and develop a detailed, predictive macroeconomic model of the Arizona/New Mexico cattle industry. Recognizing the numerous factors that can influence prices and quantities, we decided to limit our selection of market prices to only the last 10 years of data because including older data would pick up historical influences on market prices and quantities that more likely than not are not as influential or relevant in today's market. We agree that relying on the last 10 years of data to predict future cattle prices represents a simplified approach, but as noted by our peer reviewer, the approach is not flawed and is reasonable given the limitations.

Comment: The USFWS references the documented indirect effects of predator pressure on livestock weight gain, and explicitly attempts to account for it in their calculation of potential economic impacts. Other indirect effects, however, do not appear to be considered or accounted for. It would, admittedly, be difficult to accurately account for the full range of indirect effects.

Our response: Our economic analysis recognizes that in addition to the direct effects that the presence of wolves can have on cattle stocks ( i.e., depredations), there are a number of potential indirect effects on the herds as well. One of these indirect effects, which we specifically attempt to account for in our economic analysis, is the effect of stress on cattle herds foraging within the vicinity of wolves. As our reviewer points out, indirect effects may include weight loss; reduction in conception rates; reduced utilization of available forage; increased risks of injury, illnesses, and diseases; and general effects on manageability. We have attempted to review the existing literature on these factors, and where reasonable data exists, we have attempted to use this information to quantitatively estimate the indirect effects on cattle herds due to the presence of wolves. Specifically, we considered the impact of weight losses on affected herds and how that may impact the profitability of ranching operations. As our peer reviewer notes, it is difficult to model the other specific effects, many of which would also manifest themselves in the form of weight loss, due to a scarcity of applicable studies that attempt to better understand all of these interactive effects that may be caused by the presence of wolves. We believe that by accounting for the indirect effects of potential weight losses, we have realistically captured the most significant financial impact of indirect effects on affected ranches.

Comment: The proposed rule explicitly acknowledges potential management responses, noting that estimated costs are likely an overestimate since proactive and reactive management tools are available to reduce the indirect effects associated with weight loss; however, the costs of said management tools do not appear to be explicitly accounted for within estimates of the economic impact on small enterprises (although some may be offset by federally funded or subsidized programs). Additionally, some existing literature (see e.g., Rashford et al. 2010; Lehmkuhler et al. 2007) has identified a range of potential costs associated with managing livestock in the presence of wolves, including fence maintenance and repair, veterinary costs, reporting/verification costs, and other management adjustments.

Our response: Our economic analysis recognizes the fact that ranch operations within the vicinity of wolves may experience indirect economic effects associated with depredations. We recognize there are several potential categories of indirect economic effects, including stress-related effects of wolf presence on the herd, additional labor time for ranch owners to pursue depredation claims, and the investment in additional range labor time and materials in order to prevent depredations (USFWS 2014, chapter 4, pp. 29-48). The FSEIS attempted to reasonably estimate the financial cost of several of these indirect effects on affected ranches based on the studies available that provided credible research and results that could be incorporated into the analysis. We specifically were able to factor in an estimate for owner-operator labor time associated with processing depredation claims, as well as estimating the financial impact of expected weight losses on a stressed herd.

We were unable to find research that would enable us to also attempt to credibly measure the financial impact associated with undertaking additional measures to prevent depredations. While there are some studies that do recognize these impacts ( e.g., Rashford et al. 2010; Lehmkuhler et al. 2007) in association with other indirect impacts ( e.g., weight loss) in association with the presence of gray wolves, we were unable to extrapolate any findings that could be credibly applied to our analysis. We note that by explicitly accounting for the financial impact of weight loss of stressed herds that we are, in fact, accounting for some of the interactive costs associated with preventative measures, as such measures would not only serve as a detriment to depredations but also serve to reduce stresses on the herd and any associated weight losses. Relatedly, our Mexican wolf recovery program provides both management and financial assistance to ranchers to minimize potential wolf-cattle conflicts. Our latest Mexican wolf recovery program progress report (number 22, January-December 2019) discusses how the Service engaged in such practices during this period and intends to develop a future database to aid in monitoring and evaluating the effectiveness of such activities (USFWS 2019, pp. 37-39).

Comment: Given there is only one population of Mexican wolves under the Service's control, coupled with the uncertainties associated with alternative population sources, it is unclear how the MWEPA cannot be considered essential.

Our response: Neither section 10(j) of the ESA nor our implementing regulations specify that management control of nonexperimental populations is a factor in determining whether an experimental population is essential.

Comment: The MWEPA holds most of the remaining wild Mexican wolves (more than 90 percent), including several wild-born generations. It is highly likely that new genetic mutations have emerged in the wild, providing an evolutionary avenue for locally adapted Mexican wolves. Those alleles will not be in the captive population or Mexico's population, thus making the MWEPA essential.

Our response: We agree that there is potential for new genetic mutations to have emerged, or to emerge in the future, in the wild that may benefit the adaptive potential of Mexican wolves in the MWEPA. However, this fact alone does not equate to essentiality as defined by statutory language or our regulations.

Comment: The Service should clarify its process to consider whether future range expansion beyond the MWEPA via natural dispersal is appropriate for the Mexican wolf due to the potential effects of climate change, and whether the increase in genetic diversity from the genetic objective is sufficient to provide adaptive capacity against climate change. The Service should consider the updated National Fish, Wildlife and Plants Climate Adaptation Strategy and consider implementing an adaptive approach where clear trends in wolf movements north of I-40 result in consideration of expanded experimental population boundaries.

Our response: The Service's recovery strategy for the Mexican wolf in the revised recovery plan includes discussion of the geographic and genetic representation needed for long-term conservation and recovery of the Mexican wolf. The revised recovery plan builds two evaluation periods into the recovery process to ensure that the plan's strategy continues to be appropriate and effective (USFWS 2017a, p. 26); therefore, although we do not currently consider climate change a threat to the Mexican wolf, we will continue to revisit this issue as we evaluate our recovery strategy in the future. We also refer the commenter to our discussion of climate change related to our strategy for Mexican wolf recovery in our response to public comments on the revised recovery plan (see USFWS 2017c, pp. 12-13).

Comments we received from the States regarding our October 29, 2021, proposal to revise the regulations for the nonessential experimental population of the Mexican wolf in the MWEPA are addressed below. We note that some comments from the States expressed support for various features of the rule, such as the Service's intention to align the 10(j) designation with the revised recovery plan, the Service's current focus on pursuing recovery within the historical range of the Mexican wolf, and the Service's intention to capture and return to the MWEPA or captivity any Mexican wolf that disperses outside of the MWEPA. We do not provide responses to statements that are consistent with our approach. In other instances, we have incorporated information supplied in these comments directly into the rule and similarly do not restate those issues here.

Comment: One State agency requested that we add language to the regulatory text in the rule stating that we have developed a 10(a)(1)(A) permit to allow for specific management activities within and outside of the MWEPA and clarifying that we will capture and return to the MWEPA or place in captivity Mexican wolves that travel outside of the MWEPA.

Our response: We state our intention to manage wolves that disperse beyond the MWEPA through the 10(a)(1)(A) permit in the preamble of the rule (see Management Restrictions, Protective Measures, and Other Special Management, above). However, only management activities that take place within the experimental population boundaries are included in the regulatory text of the rule.

Comment: Maintenance of the nonessential experimental population designation is critical to the Service's ability to implement responsive management actions such as cross fostering, translocations, and removals. Maintaining the existing designation is also important for maintaining the trust of the public and other agencies as a precedent for other reintroduction efforts under the ESA's section 10(j).

Our response: The Service acknowledges the importance of maintaining the trust of our partners. An essentiality determination under section 10(j) of the ESA is based on whether the best available information supports that the population is essential to the continued existence of the species. Based on the best available information, we have determined the MWEP to be nonessential. We note that the primary difference between an essential and nonessential experimental population is the requirement to conduct interagency consultation under section 7(a)(2) of the ESA for populations determined to be essential and the potential to designate critical habitat under section 4(b)(2) of the ESA. Regardless of the designation as an essential or nonessential experimental population, members of the experimental population will be treated as a threatened species which allows for developing regulations to allow for responsive and flexible management.

Comment: The final rule should stress that the new population objective is not intended to portray an unlimited number of wolves growing indefinitely, but rather recognizes natural variation around a target population size.

Our response: We discuss our expectations for the future growth of the population in the FSEIS (USFWS 2022a, pp. 24, 28, table 2.1). We have ensured that the preamble of this rule does not suggest that we expect an unlimited number of wolves growing indefinitely in the MWEPA under the revised population objective; we point to our statement in the proposed rule that, under the proposed population objective, we would continue to manage Mexican wolves in the MWEPA to maintain a population average greater than or equal to 320 wolves until delisting occurs (86 FR 59953, October 29, 2021, p. 59959), which remains consistent with the final rule.

Comment: The final rule should include timeframes or guidelines for when the States can request management of Mexican wolves if adverse impacts to ungulates are occurring.

Our response: The final rule provides this information at § 17.84(k)(7)(vi)(E).

Comment: Recent efforts to cross-foster genetically valuable Mexican wolf pups from captivity to the wild are demonstrating that this approach can be successfully used to achieve the proposed genetic objective. It is resulting in improvements in the population's gene diversity, mean kinship, and founder genome equivalents. The Service is on track to achieve the benchmark in the recovery plan for 9 released wolves to survive to breeding age at the 5-year review.

Our response: The Service and our partners have committed significant resources since 2014 to test cross-fostering as a release strategy to improve the genetic health of the MWEPA. We agree that this technique appears to be proving successful and has become a valuable tool to address genetic threats in the MWEPA. As of April 1, 2022, 13 released wolves surviving to breeding age have been counted toward the genetic objective and genetic recovery criterion (USFWS files).

Comment: While the proposed genetic and population objectives are appropriate and necessary for the recovery of the Mexican wolf, they may result in additional hardships for livestock producers. Therefore, a companion provision should be included in the rule to implement an aggressive program to improve the coexistence component of the recovery program.

Our response: The Service acknowledges that the increased number of wolves in the MWEPA could result in impacts to livestock producers and that permit restrictions will decrease the ability of some livestock operators to assist in conflict resolution in certain situations. We will continue to work with our partners and livestock operators to expand and improve our coexistence efforts as an integral part of the recovery program, but we have not added any mandatory coexistence measures to the regulatory text of this rule.

Comment: Many commenters stated that a single population of an average of 320 wolves in the MWEPA is insufficient for recovery. Many of these commenters stated that a metapopulation of three populations with 750 to 1,000 wolves is necessary for recovery because multiple interbreeding populations are necessary for resiliency and increasing genetic diversity. Other commenters discussed the concept of ecological effectiveness, recommending a population objective of 500 breeding animals.

Our response: These commenters did not provide new information that the Service has not already considered and responded to in its development of the recovery criteria in the revised recovery plan for the Mexican wolf (USFWS 2017c, pp. 19-20) or the population objective for the MWEPA (85 FR 20967, April 15, 2020; USFWS 2021, pp. 202-206). Therefore, we did not make any changes to this rule in response to these comments.

Comment: Commenters questioned or expressed concern with the recovery strategy to have one population in the MWEPA and one in Mexico, stating that dispersal between the two areas would be infrequent, associated with a high risk of mortality, and dependent on successful navigation of low habitat quality and an impermeable border wall.

Our response: We provide our rationale for the recovery strategy for the Mexican wolf in the revised recovery plan and address issues such as dispersal between Mexican wolf populations in the United States and Mexico. The 2015 10(j) rule revisions included the extension of the experimental population boundaries to the international border with Mexico in recognition that management of dispersing wolves between the two populations would be necessary. We addressed comments about this topic in the DSEIS (USFWS 2021, pp. 199-202) and previously in our response to public comments on the revised recovery plan (USFWS 2017c, p. 18).

Comment: One commenter expressed concern that under the proposed population objective, the requirement of an 8-year average of 320 with the last 3 years stable or increasing could allow for the Service to translocate or remove/take around 150 wolves at some point after the population objective has been reached and exceeded.

Our response: The Service is establishing a population objective in this rule that will result in a robust population that contributes to recovery; we intend to manage the population in accordance with meeting and maintaining this objective.

Comment: A commenter mentioned the proposed rule does not include a human-caused mortality criterion or management actions that will substantively address this issue.

Our response: Human-caused mortality is a broad term that encompasses several forms of mortality for Mexican wolves, including vehicular collision, shooting, trapping, and management removal. This rule maintains multiple provisions from the existing regulations in the 2015 10(j) rule that address the threat of human-caused mortality, including prohibitions to restrict the take of Mexican wolves (§ 17.84(k)(5)) and limitations on activities that may disturb Mexican wolves and affect their persistence (§ 17.84(k)(8)). In addition, this rule provides new restrictions on three forms of take that could result in human-caused mortality, as well as providing a revised population objective to ensure the population continues to grow as necessary to alleviate demographic threats. In addition, the Service is expanding our efforts to address human-caused mortality in our revisions to the revised recovery plan (USFWS 2022b, pp. 30-33).

Comment: Several commenters noted the delay in receiving compensation for depredations and stated that an increase in the wolf population will make the situation more severe for livestock operators.

Our response: The Service is aware of the delays in receiving compensation in previous years. The Service's Wolf Livestock Loss Demonstration Project Grant Program for eligible States and Tribes has served as the primary funding source for compensation and requires a 50:50 non-Federal match; most delays in receiving compensation have occurred as a result of grant funding and match funding not being available at the same time. The Service has made improvements to the Wolf Livestock Loss Demonstration Project Grant Program and worked with its partners to secure match funding, helping to alleviate this issue.

Comment: One commenter noted that the Service is inconsistent because it says that no unique genes would be lost if released wolves did not survive in the MWEPA, but then it uses genetic importance as a reason not to remove wolves during conflict situations.

Our response: Wolves released to the wild from captivity are considered surplus wolves whose genes are represented by related wolves still held in captivity. Therefore, a released wolf could be replaced with a related surplus wolf from captivity if necessary. However, because we are trying to improve gene diversity in the MWEPA, it is important for released wolves to survive and breed so that genes from captivity that are currently underrepresented in the wild become integrated into a more genetically diverse MWEPA population.

Comment: Multiple commenters questioned whether the Service has objectives related to ensuring specific representation of the three founding lineages of the captive population, such as to achieve 50 percent, 25 percent, and 25 percent, respectively, of the Certified (McBride), Ghost Ranch, and Aragon lineages.

Our response: We currently focus on increasing founder representation rather than lineage representation in the wild; however, we do not have specific objectives related to this metric at the current time.

Comment: Many commenters discussed the basis of the proposed genetic objective to ensure that 90 percent of the genes in the captive population are expressed in the MWEPA population. Several commenters noted that wildlife managers typically set genetic retention goals relative to the current source population. These commenters questioned or critiqued the Service's approach to aim to retain 90 percent of gene diversity at 100 years in the future because the projected diversity in the captive population 100 years in the future is a much lower value. These commenters expressed concern over the already-depleted genetic status of the captive population and the concept of tying the genetic future of the wild populations to the ongoing deterioration of gene diversity in captivity. Another commenter stated that the SSP uses 90 percent gene retention as a standard in conserving some captive populations, but this does not make it a “community of practice standard” as claimed in the revised recovery plan nor is it appropriate for the Service to use it as a foundation for recovery criteria.

Our response: We expect to achieve the genetic objective in this rule within 8 years.

We used a metric ( i.e., the number of animals that survive to breeding age) as the basis of the revised recovery plan genetic criterion that coupled model performance with performance of the wild populations (Miller 2017, entire) to ensure that a large degree of the gene diversity available in captivity is transferred to the wild population to reduce the likelihood of genetic threats such as inbreeding. We provide our rationale for our objectives and strategy in the revised recovery plan (USFWS 2017a, pp. 13-15, 22-24; USFWS 2017c, pp. 28-29), which formed the basis for the genetic objective in this rule.

Comment: Some of the commenters recommended releasing adult pairs with pups instead of, or in addition to, cross-fostering captive puppies into wild dens because adult wolves could more quickly affect the genetics of the MWEPA and because adult releases have had a higher success rate. Several of these commenters stated that the concept of “effective migrants” is a better scientific principle than released wolves surviving to breeding age because it ensures that reproduction of released wolves takes place and that genes from captive wolves are integrated into the population. These commenters stated that the Service's proposal is insufficient scientifically for genetic recovery and should be replaced by actual evidence of increased heterozygosity and increased allelic diversity in the population, validated by monitoring to ensure retention. Commenters stated that the rule should commit to all release strategies to achieve genetic objectives.

Our response: This rule maintains the zone definitions of the 2015 10(j) rule, which allow for the release and translocation of adult and sub-adult wolves or puppies in specific geographic locations within the MWEPA. While we have stated our current preference for cross-fostering puppies compared to releasing adult wolves, this rule does not alter the availability of the release strategies supported by the commenters. We provide our rationale for using “released wolves surviving to breeding age” as the metric for the establishment of a genetic objective from the MWEPA in our FSEIS (USFWS 2022a, pp. 11, 24-26) and have previously addressed this in our response to comments on the revised recovery plan (USFWS 2017c, p. 79).

Comment: Commenters recommended that released wolves should be tracked, and that genomic survey and analysis should be used to determine how many released captive wolves have contributed genetically to the wild population and what their actual contribution has been. Commenters also restated the recommendation for a replacement release objective, in which the Service would release captive wolves to make up for wolves lost due to removal or illegal killing.

Our response: We track released wolves using global positioning system (GPS) or radio-collars and provide data on survival and reproduction of released wolves in quarterly and/or annual reports. We establish our expectations for releases and translocations in our annual Initial Release and Translocation Plan and during annual management meetings with the SSP. Both of these processes are reflective of the needs of the population, including awareness of demographic rates, progress toward management objectives, or other special management considerations.

Comment: One commenter recommended that at a minimum, captive releases should result in increasing the level of gene diversity, founder genome equivalents, and mean kinship to a level at least 50 percent between that expected in the captive population and that expected in the wild population, given no releases, because if achieved, this could relieve some of the deleterious impacts of inbreeding depression in the wild population.

Our response: We will continue to monitor the gene diversity, founder genome equivalents, and mean kinship of the MWEPA, as stated in this rule in response to other comments, to validate that genetic threats are being alleviated over time. There is no definitive standard in the literature upon which to assess the extent to which deleterious impacts of inbreeding depression would be reduced according to the commenter's recommendation, although we recognize it as a protective recommendation that strives to ensure adequate gene diversity in the MWEPA for the long-term health of the population, as consistent with the purpose of our genetic objective.

Comment: One commenter stated that it is unlikely that the pedigree of cross-foster pups released to the wild would closely match the pedigree of the releases simulated by the population viability model used in the revised recovery plan (Miller 2017); therefore, the model results suggesting that 22 released wolves surviving to breeding age is sufficient may not be robust. Other commenters questioned whether cross-foster releases have less genetic impact than adult releases because cross-fostered pups come from the same litter.

Our response: The Miller 2017 population viability model ran 1,000 iterations to explore the range of outcomes possible for each scenario. We agree that any single model run may not accurately represent the same specific wolves that we have released in the MWEPA, but the model results are robust in estimating that 22 released wolves will ensure that approximately 90 percent of the gene diversity available in captivity is represented in the wild because the results stem from averaging the results of many iterations (see Miller 2017, p. 16). We recognize that cross-foster pups come from the same litter and are therefore related, but we do not expect all pups placed in a wild den to survive; that is, we expect pup survival of approximately 50 percent during their first year of life. Therefore, the 22 released wolves surviving to breeding age will come from different litters placed during different cross-fostering events. Regardless, the wolves prioritized for release to the wild are those that have gene diversity that is not represented, or that is underrepresented, in the MWEPA and that will, therefore, be beneficial to release.

Comment: Some commenters questioned whether the SSP can continue to support the number of cross-foster events the Service has conducted in recent years or raised concern that cross-fostering could lead to higher relatedness in the MWEPA if cross-foster puppies continue to come from the same captive pairings each year.

Our response: The Service works with SSP facilities on an annual basis to plan breeding events to support cross-fostering in the MWEPA. The number of breeding events that can be supported across SSP facilities and the relative genetic importance of specific pairings (breeding events) to produce puppies that would provide unique gene diversity to the MWEPA are integral components of our planning. The SSP can continue to provide puppies for cross-fostering based on the number of breeding age animals in the population and the number of facilities available to support breeding events.

Comment: One commenter questioned how it is possible that captive wolves being released could have gene diversity that is not represented in the MWEPA population, given that the Service has been releasing wolves since 1998.

Our response: No new genes have been added to the captive population since the merging of the three founding lineages occurred in the mid-1990s; however, the captive population still contains genes not represented in the MWEPA because wolves with those genes have either not yet been released, have not been integrated into the population due to mortality, or are significantly underrepresented in the MWEPA.

Comment: One commenter stated that the frozen semen bank developed by the SSP contains genetic variation not currently expressed in the wild population. The commenter recognized that it may take several more years to develop artificial insemination procedures from frozen semen but stated that the Service should pursue this strategy in addition to ensuring 22 released wolves survive to breeding age.

Our response: We agree that the frozen semen bank may offer an opportunity to infuse additional gene diversity to the MWEPA. We will continue to explore and support opportunities to test and utilize technological procedures to slow the loss of gene diversity in the captive population and ensure the representation of available diversity in the wild as these procedures become available.

Comment: Genomic survey and analysis in wolves is readily available and inexpensive compared to the overall cost estimated for Mexican wolf recovery. In 2022, the best state-of-the-art scientific information, such as actual genetic variation using genomic survey and analysis, should be used for this important aspect of the recovery plan.

Our response: We agree that genomic survey and analysis techniques are available, may be affordable, and can be further integrated into our ongoing monitoring of the genetic status of the MWEPA population.

Comment: One or more commenters stated that the inbreeding depression documented by Fredrickson et al. (2007) likely still exists in the population, because it would be unlikely for it to disappear without an extreme breeding scheme. A commenter noted that natural selection would be more likely to result in the purging of inbreeding if supplemental feeding were stopped, as supplemental feeding may be improving the survival of inbred litters. This commenter recommended that any future evaluation of the genetic fitness of Mexican wolves contributing to a determination on their recovery must be made in the absence of supplemental feeding for at least five generations (20 years). Another commenter stated that viability estimates for the population from the population viability model (Miller 2017) would likely be different if the effect of inbreeding had been calculated differently for packs that are supplementally fed versus those that are not. This commenter suggested looking at larger, longer-term datasets from other gray wolf populations to inform input parameters related to inbreeding. A commenter stated that supplemental feeding is likely accelerating inbreeding accumulation and the loss of genetic variation in the population.

Our response: As stated in our responses to other comments, we expect to conduct additional analyses related to inbreeding during the recovery process for the Mexican wolf. When we collect that future data set, we can determine the appropriate methods for incorporating data from packs/litters that have been supplementally fed. We expect to decrease the use of supplemental feeding as the population reaches recovery and some management activities are curtailed; this may include assessing genetic health within the context of a different (lesser) supplemental feeding regime such as suggested by the commenter.

Comment: One commenter questioned what will happen if 22 released wolves have not survived to breeding age by 2030, which is the end of the benchmarks proposed by the Service.

Our response: If 22 released wolves have not survived to breeding age by 2030, we will extend the temporary restriction until the genetic objective is reached, using the same annual process that accompanies the benchmarks to evaluate whether permits for take on Federal and non-Federal land will be issued in the year ahead.

Comment: Several commenters noted that very few take permits have been issued to the public. Some commenters made this statement as support that take restrictions are not needed, while others stated that the Service and its partner agencies have been the ones taking Mexican wolves and the proposed revisions to the regulations do not limit this form of killing and removal. One commenter stated that the Service acknowledges in the 2017 biological report (USFWS 2017a) that management removals function as a type of mortality to the population, and therefore the Service needs to address its own level of removal in the 10(j) rule.

Our response: The Service considers it important to retain the ability to remove wolves in specific situations in which nonlethal management actions are ineffective at resolving conflicts. The agency's level of removal is consistent with the recovery needs of the Mexican wolf, as evidenced by the growth of the population for the last 6 years during the implementation of the 2015 10(j) rule.

Comment: One commenter stated that the proposed revised take provisions do not result in significant differences in take compared to the 2015 10(j) rule. One commenter stated that basing the projection on the number of permits that have been issued does not limit what could be issued in the future.

Our response: The Service did not intend for the take provisions in the 2015 10(j) rule to lead to an excessive level of take that would hinder the recovery of the Mexican wolf, nor have we used any take provision excessively since implementation of the 2015 10(j) rule began. However, we recognize that as written in the 2015 10(j) rule, several of the take restrictions provide expanded take flexibility without ensuring commensurate progress toward recovery. To analyze the possible effects of the take provisions on Federal and non-Federal land, we extrapolated the number of permits that may be issued in the future based on our current level of permit issuance (USFWS 2022, pp. 28-29, table 2.1). We agree that based on this approach, there are not large differences in take compared to the 2015 10(j) rule, and that it would be possible to issue many more permits than our projections estimate. The potential for issuance of a large number of permits emphasizes that without limiting or restricting the take provisions, this rule may not support the long-term conservation and recovery of the Mexican wolf. By temporarily restricting three take provisions during a critical period of recovery, as we do in this rule, we ensure that genetic threats to the Mexican wolf are rapidly lessened and alleviated.

Comment: One commenter questioned what the incentive is for Service staff to achieve the benchmarks, since not meeting the benchmarks will continue to result in restricted take.

Our response: The Service considers the permits to be a form of management flexibility to address conflict situations across the MWEPA, in particular as the wolf population grows and the number of conflicts increases. Therefore, the Service would utilize the permits when doing so will be appropriate in the context of the long-term conservation and recovery of the Mexican wolf; in other words, the incentive for Service staff to achieve the benchmarks is to reach recovery targets and to increase our management flexibility to address conflicts.

Comment: A number of commenters stated that the Service and State agencies should ban coyote hunting in the MWEPA due to the loophole provided by the McKittrick policy for people who shoot wolves claiming they thought they were coyotes.

Our response: Regulating coyote hunting is beyond the scope of these revisions that the Service is taking to comply with the March 31, 2018, order.

Comment: Several commenters recommended that the Service should not remove wolves for natural predation on wild ungulates. These commenters recommended the Service remove the take provision for unacceptable impact to a wild ungulate herd. In contrast, other commenters questioned whether the Service has any mechanisms to address drastic declines in elk herds during the (estimated) 6 years in which State game and fish agencies would not be able to request take in response to an unacceptable impact to a wild ungulate herd. One of these commenters stated that the level of wolf removal that may be needed after the period of restriction is likely to be much more severe than without the restriction. Several other commenters questioned why we would need to limit the State game and fish agencies from requesting to utilize the unacceptable impact take provision if translocation of wolves is an option, or why the restriction is necessary at all given the strict process by which the Service would approve any requests made by the States. This commenter clarified that the Service's statement that we would not know how much take would occur is false, because the Service would have to approve the take.

Our response: Mexican wolf predation on wild ungulates occurs as a normal part of Mexican wolf ecology. We recognize that in infrequent situations, predation could result in a drastic decline in a localized wild ungulate herd, and that this may be a management concern for the State game and fish agencies and hunting and guiding businesses in the MWEPA. The take provision for take in response to an unacceptable impact to a wild ungulate herd addresses these infrequent situations, rather than the ongoing, natural background level of predation that occurs from the presence of Mexican wolves across the landscape. Therefore, we consider this take provision to be a reasonable component of our management in the MWEPA, and consistent with the recovery of the Mexican wolf. Our temporary restriction of this take provision ensures that the gene diversity of the MWEPA population improves sufficiently to decrease gene threats prior to allowing for the removal of wolves in response to an unacceptable impact to a wild ungulate herd. As we explain in the FSEIS (USFWS 2022, pp. 111-116), we do not expect wolf density to reach a level where unacceptable impacts occur during the period of restriction. However, the restriction of take provisions motivates the Service and our partners to accomplish the genetic objective as quickly as possible, which will benefit the recovery of the Mexican wolf. Therefore, if drastic declines were to begin to be observed, efforts to release more wolves could shorten the period of restriction. While we understand the commenters' statement that the Service would approve future take requests under this take provision and would therefore know how many wolves would be taken, we meant that because we have not used this provision and do not know the circumstances of future requests, it is difficult at this time to estimate the level of take of released wolves that could occur through this provision. After the genetic objective is achieved and the period of restriction ends, the take of released wolves will not hinder the genetic health of the MWEPA because released wolves will no longer represent unique gene diversity, as described elsewhere in this rule.

Comment: Commenters expressed concern about the Service's proposal to restrict take provisions because take provisions promote management flexibility and coexistence between wolves and local residents. These commenters pointed out that the MWEPA is a working landscape where wolves should be managed in a manner that is compatible with other uses, such as livestock operations. These commenters stated that without take authority, livestock operators will not be able to protect themselves from direct economic impacts. Several commenters suggested that at specific population sizes ( e.g., more than 320 wolves) any ongoing restriction of take provisions should be removed to ensure that wolves do not cause additional impact and harm.

Our response: The Service strives to balance the recovery needs of the Mexican wolf with the needs and concerns of local communities, including livestock operators. The take restrictions in this rule were developed to ensure that progress toward recovery dictates the availability of management flexibility such as the issuance of permits to livestock operators, while also ensuring that the Service and our partners maintain the ability to address conflict situations. During the period of restriction, the Service and our partners will work with livestock operators to utilize nonlethal management response to conflict situations, or, in the event that nonlethal measures are ineffective, may remove a wolf or wolves to resolve the situation. These management approaches will continue, regardless of population size, until the genetic objective is reached. In addition, during the period of restriction, domestic animal owners on non-Federal land will maintain the ability to take a wolf that is in the act of biting, killing, or wounding a domestic animal at the time of take.

Comment: Some commenters stated that ranchers in the MWEPA no longer attempt to obtain a permit for take of Mexican wolves on Federal or non-Federal land because the Service requirements for issuance are so stringent and delayed that, even if granted, wolves have already inflicted damage. The commenter stated that livestock operators and local citizens believe no permits will be issued, making the take permit on non-Federal land as currently managed a meaningless management tool for depredating wolves. This commenter requested that the Service assign additional staff to facilitate and deliver permits.

Our response: The Service will work towards improving the timing of the issuance of permits. However, permits can only be issued in conjunction with removal actions and are by definition a response to inflicted damage by wolves that has already occurred.

Comment: Commenters stated that the rule must address all forms of take to ensure the rule will protect the genetic diversity of the Mexican wolf; one commenter recommended the Service initiate a process to account for the genetic value of every wolf being considered for removal. Another commenter stated that the Service's approach assumes that only wolves released after 2016 are genetically valuable, which the commenter states is not true.

Our response: The establishment of the genetic objective provides an overarching strategy to improve the gene diversity of the MWEPA and engages all management actions in the pursuit of achieving the objective. Per the March 31, 2018, order, we specifically focus on restricting three forms of take that were expanded in the 2015 10(j) rule. We incorporate benchmarks for two of these take provisions that connect the issuance of permits ( i.e., management flexibility) to the number of released wolves surviving to breeding age; these benchmarks motivate the Service and our partners to release wolves and to utilize nonlethal methods to manage conflicts so that released wolves that could count toward the genetic objective may not be taken during the course of management activities. The genetic objective we are establishing serves as an indicator that we have transferred a large degree of the gene diversity available in captivity to the wild population. We do not intend to suggest that wild wolves may not have valuable gene diversity. However, because we are trying to improve gene diversity in the MWEPA, it is important for released wolves to survive and breed so that genes from captivity that are currently underrepresented in the wild become integrated into a more genetically diverse MWEPA population. The Service and designated agencies currently evaluate the genetic value of every wolf being considered for removal within the context of other management considerations such as the level of conflict occurring and the range of conflict response measures available.

Comment: Several commenters questioned how the Service will verify whether a wolf taken with a permit in the previous year was a released wolf.

Our response: We intend to collar released wolves to assist in our ability to determine whether a wolf taken with a permit was a released wolf. Because cross-fostered pups are too small to be fitted with collars, we microchip pups and obtain genetic markers through blood samples to identify individuals. At 1 year of age, pups are nearly the size of adults and can be fitted with collars. In any case, because we take blood samples from released wolves prior to release, we will be able to determine the identify of a wolf taken with a permit through its microchip or subsequent blood or scat samples.

Comment: Several commenters recommended that the proposed restriction of take provisions be made permanent rather than temporary in order to ensure that take does not negatively affect Mexican wolf recovery. One commenter stated that by making the restrictions temporary, the rule will only serve short-term conservation needs of the Mexican wolf and, therefore, falls into the same error as the 2015 10(j) rule. This commenter recommended implementing a monitoring protocol that would require the restrictive provisions be put into place again if the genetic health of the population declines in the future.

Our response: As described throughout this rule, this rule aligns the nonessential experimental population designation with the recovery strategy and criteria outlined in the revised recovery plan for the Mexican wolf, and therefore contributes to the long-term conservation and recovery of the Mexican wolf. We consider temporary restriction of the take provisions appropriate during the period in which we are focused on achieving the genetic objective because this is when the release of captive wolves will have the most positive contribution to the MWEPA in lessening the risk of genetic threats. After we have integrated a large degree of the gene diversity available from captivity into the wild, the gene diversity of captive wolves will not be as significant; in other words, it will already be represented in the wild. Therefore, restricting the take provisions after the genetic objective is met will not have the protective effect that it will have prior to achieving the genetic objective.

Comment: Numerous commenters referenced scientific literature related to the relationship between poaching (illegal killing) and the level of legal protection afforded to wolves ( e.g., Louchouarn et al. 2021). These commenters stated that the scientific literature makes clear that illegal killing of wolves increases when protections for wolves are lessened and that nonlethal methods to address conflict are effective when properly implemented. These commenters stated that Service policies to liberalize take permits will incentivize and encourage poaching, and therefore recommended that the Service permanently suspend the use of any type of take permit or restrict all forms of take significantly. Many of these commenters recognized that the Service currently uses nonlethal methods to address conflict in some situations and recommended that the Service increase its focus on nonlethal methods to reduce and address conflicts by adding language to the rule in support of, or to mandate, nonlethal methods of management. Several commenters specified that instead of the Service expecting livestock owners to assist with management actions in the future, the Service should use its resources to expand the use and training of nonlethal methods with livestock operators. In contrast, several commenters noted that some nonlethal measures cause unexpected consequences or are impractical, citing examples that range riders push wolves onto a ranchers' neighbors and that it is impractical to expect ranchers to install fladry (a rope mounted along the top of a fence, from which are suspended strips of fabric or colored flags, that will flap in a breeze) across tens of miles of fencing.

Our response: The effectiveness of nonlethal deterrents is dependent on various characteristics of the area and individual livestock operations. For instance, many tools (fladry, radio-activated guard boxes, and electric fencing) are only effective in small areas. The southwestern U.S. differs from other geographic areas where much of the scientific literature has been developed in several aspects that are relevant to the efficacy and logistical feasibility of nonlethal tools, such as: (1) Calving pastures that are hundreds of square miles versus less than 2 square miles, (2) reduced stocking rates that are reflective of reduced feed and water in localized areas, and (3) year-round calving rather than seasonal calving. Many nonlethal tools that may be effective in other areas may not be as effective or logistically feasible in the MWEPA. Nevertheless, some innovative tools (diversionary feeding, range riding, hazing) have reduced depredations in the MWEPA in certain situations. The Service will continue to focus on, and expand, the use of nonlethal tools where appropriate and utilize removal as a last resort to prevent depredations. Further, this rule is more restrictive relative to take than the 2015 10(j) rule. Based on the hypothesis referenced by commenters of an inverse relationship between illegal killing and the level of protection afforded to wolves, the prediction would be for this rule to result in reduced illegal killing relative to the previous time period. We note that this conclusion is far from a consensus in the literature.

Comment: Commenters suggested that the loss of newly released wolves outside of the area previously designated as the Blue Range Wolf Recovery Area (BRWRA) in the original 10(j) rule for the MWEPA (63 FR 1752; January 12, 1998) would not appreciably reduce the likelihood of the species' survival because it would have no effect on the survival of the previously established wolf population.

Our response: We consider all Mexican wolves in the MWEPA to function as a single population regardless of their current location compared to the previous geographic area designated as the BRWRA; therefore, our essentiality determination is based on the MWEPA as a whole, rather than solely the area beyond the boundaries of the previously designated BRWRA that became allowable for wolf occupancy under the 2015 10(j) rule.

Comment: Several commenters expressed support for an essential determination because they claimed that an essential designation would reduce illegal take or better support the SSP in providing genetic diversity for Mexican wolves in the wild.

Our response: A determination of essential would result in several changes to the experimental population, including conducting interagency consultation under section 7(a)(2) of the ESA and the potential to designate critical habitat under section 4(b)(2) of the ESA. Neither of these provisions would directly impact the level of illegal take occurring or the function or ability of the SSP to support the reintroduction of the Mexican wolf to the wild.

Comment: Many commenters stated that an essential designation would better support recovery due to the section 7 consultation requirements and the potential to designate critical habitat for the Mexican wolf.

Our response: An essentiality determination under section 10(j) of the ESA is based on whether the best available information supports that the population is essential to the continued existence of the species, not whether the consultation or critical habitat requirements of the ESA resulting from an essential determination would have a conservation benefit to the subspecies' recovery.

Comment: Several commenters stated that if we lose the wild population, we lose several decades representing multiple generations of adaptive evolution, and this supports an essential designation.

Our response: The ESA does not specify that maintenance of adaptive evolution is a factor in an essentiality determination. We agree that if we lost the MWEPA population we may lose some local adaptations in that process; however, we consider the ability to restart a population using captive wolves as a determining factor in our decision because wolves from the captive population are still able to provide gene diversity sufficient for reintroduction.

Comment: Commenters expressed concern that Mexican wolves should be designated as essential because the population in Mexico is not big enough or genetically diverse enough to promote the recovery of the species.

Our response: We recognize that further alleviation of demographic and genetic threats is necessary for the population in Mexico to achieve recovery objectives. However, Mexico has released and managed Mexican wolves in the wild for more than a decade, demonstrating a consistent effort to establish a population for recovery. Because we consider the wolves in Mexico to function as a population, and due to Mexico's concerted and ongoing efforts to increase the abundance and distribution of the population, we consider it a valid population to consider in the context of our essentiality determination.

Comment: One commenter recommended that the Service should provide examples of a 10(j) population that has been designated as essential for comparison's sake and to show the agency's factual bar for an essential determination.

Our response: The Service has never designated a 10(j) population of any species as essential; therefore, we are unable to provide the example requested by the commenter. In fact, Congress' expectation was that “in most cases, experimental populations will not be essential” (H.R. Conference Report No. 835, supra at 34). The preamble to our August 27, 1984, final rule reflects this understanding, stating that an essential population will be a special case and not the general rule (49 FR 33885, August 27, 1984, p. 49 FR 33888). We consider each essentiality determination on a case-by-case basis due to the varying circumstances and life history of the species. As we explain in our determination in this rule, the existence of a robust captive population and another wild population of Mexican wolves are central factors in our determination.

Comment: Some commenters expressed concern that continued Mexican wolf generations in captivity may result in evolutionary maladaptation to the captive environment ( e.g., see Frankham 2008).

Our response: We will continue to evaluate the suitability of captive wolves prior to their release to the wild. SSP facilities adhere to strict husbandry protocols to minimize the likelihood of maladaptive behaviors.

Comment: One commenter stated that based on the size of the MWEPA population and the number of breeding wolves in the captive population it would be untenable to replace the MWEPA population because over 90 percent of the captive breeding-age wolves would need to be released.

Our response: We would not expect to restart a wild population in the MWEPA that would immediately obtain the current size of the MWEPA population (close to 200 wolves). We explain our approach to restarting a population in the MWEPA in this rule (see above under Is the experimental population essential to the continued existence of the species in the wild? )

Comment: The Service received published scientific papers and gray literature (reports) during the public comment period related to the following topics: population viability analysis, Mexican wolf genetics, the impact of lethal management on illegal killing, large carnivore poaching, livestock predation, population estimation analysis, predator tolerance/control, science and policy, large carnivore management, research and independent/peer review transparency, improving the framework of the ESA, threats to biodiversity and binational conservation, the Mexican wolf's geographic range, metapopulation connectivity, the vulnerability of the Mexican wolf to climate change, and wolf conservation planning.

Our response: We have reviewed and incorporated this information into this final rule where applicable.

Comment: A number of commenters raised concern that the Service is aligning the 10(j) rule with the recovery plan. Commenters stated that the Federal court prohibits aligning the 10(j) rule with the recovery plan. Commenters are also concerned that aligning the 10(j) rule with the recovery plan does not promote recovery since recovery plans are discretionary and not mandatory. Some commenters expressed concern that tying the new rule to the recovery plan is unnecessarily making the rule vulnerable. Specifically, commenters referenced the judge's statement that the rule must be flexible enough to remain valid through changing conditions and future revisions for recovery plans. Commenters also raised concern over the court-ordered revision of the recovery plan due in October 2022, and the 5-year status review scheduled for 2022-2023, which they stated could result in changes to the recovery plan, which they claim would render this new rule invalid or subject to further litigation. Other commenters expressed that given the significant scientific flaws in the recovery plan, the Service is violating the court's order and the ESA's best available science mandate by aligning the revised rule to the recovery plan.

Our response: See our discussion, above, in Rationale for Revisions to the Experimental Population Designation in Relation to Recovery. While implementation of recovery plans is discretionary and no partner is required to implement a recovery plan, the Act requires the Service to develop recovery plans for the conservation and survival of listed species. Such plans must include criteria which, when met, would result in a determination that the species be removed from listed status ( i.e., that the species is recovered). Because we must also determine that our experimental population designations will further the conservation of the species, it is appropriate for us to align our 10(j) rule with the recovery plan developed for the conservation of the species. As noted above in Review and Evaluation of the MWEPA Population, multiple reviews are built into our processes in acknowledgement that conditions may change and necessitate adjustments.

Comment: One commenter stated that the judge told the Service that it could not depend on another population when ensuring that the MWEPA population furthers the conservation of the Mexican wolf, yet the MWEPA population and genetic objectives are dependent on Mexico achieving its recovery goals.

Our response: This final rule revises several features of the MWEPA designation to ensure that the MWEPA supports the Service's recovery strategy for the Mexican wolf as laid out in the revised recovery plan (USFWS 2017b, pp. 10-17). Specifically, the population objective and genetic objective in this final rule ensure that the MWEPA population is robust and free from demographic and genetic threats. In other words, the MWEPA population must function as an independent, robust, healthy population in order to contribute to recovery, but it is not the only population necessary for recovery.

Comment: Some commenters raised issues with the consultation that was conducted on the 2015 10(j) rule under section 7 of the ESA. One commenter stated that there were severe deficiencies in the consultation process for the 2015 rule and the Service needs to conduct a new consultation on the new rule and associated section 10(a)(1)(A) permit; another commenter stated that the proposed revision provides no indication that the Service initiated or completed intra-agency consultation on the revised 10(j) rule.

Our response: As part of the Service's action to revise the experimental population designation of the Mexican wolf in the MWEPA, we have conducted section 7 consultation.

Comment: Some commenters expressed concern over trapping of Mexican wolves. One commenter stated that the provisions in 50 CFR 17.84(k) that relate to trapping must be modified in recognition that, except for a few specific exceptions, trapping on public lands in New Mexico is now illegal. Another commenter stated that private wolf trapping or snaring should be a violation of the 10(j) rule and the FSEIS must consider the effects of trapping on Mexican wolves. Other commenters expressed concern about the impact of New Mexico's trapping regulation on the ability of the Service to manage wolves.

Our response: Our regulations at § 17.84(k)(5)(iii) and (k)(7)(iv) provide the regulatory prohibitions and exceptions to those prohibitions for taking a Mexican wolf with a trap, snare, or other type of capture device in the MWEPA, including our due care provisions at § 17.84(k)(5)(iii)(A), which state that due care includes following the regulations, proclamations, recommendations, guidelines, and/or laws within the State or Tribal trust lands where the trapping takes place.

Comment: Several commenters expressed confusion over whether the numbering in the regulatory text of the October 29, 2021, proposed rule would negate provisions with the same numbering from the 2015 10(j) rule.

Our response: We are not eliminating any of the regulations established by the 2015 10(j) rule other than those that are revised by this final rule. We have ensured that the revisions and additions to the regulatory text of § 17.84(k) in this rule do not erroneously negate any of the regulations established by the 2015 10(j) rule.

Comment: Many commenters mentioned geographic issues related to the MWEPA, primarily in support of geographic expansion of the MWEPA beyond the current MWEPA boundaries, especially the I-40 boundary. These commenters offered many reasons for geographic expansion, such as population resiliency and redundancy, including a metapopulation configuration for recovery; adaption to climate change; habitat availability; and issues related to depicting historical range based on mitochondrial DNA rather than previous morphological data.

Our response: We explained during scoping that we would not revise the geographic boundaries of the MWEPA during the revision of the 2015 10(j) rule. Our focus in this rule is to comply with the March 31, 2018, order. We responded to public comments about geographic issues in our response to scoping comments (USFWS 2022a, pp. 201-205) and previously in our response to comments on the revised recovery plan (USFWS 2017c, pp. 8-18).

Comment: Several commenters stated that the revised rule must ensure the conservation of the Mexican wolf's ecosystems; this should be done based on an analysis of the Mexican wolf's historical range, the subspecies' genetic status, the size of the population, and the area that will be required to support it in order to ensure future viability and recovery. After identifying the Mexican wolf's ecosystems, commenters recommended the Service must then consider important features to conserve in those ecosystems.

Our response: This rule clearly explains the contribution of the experimental population to the recovery of the Mexican wolf. For a broader discussion of Mexican wolf recovery, including historical range, genetics, population viability, habitat suitability, and other aspects of ecosystem conservation as mentioned by the commenter, we refer the commenter to the revised recovery plan and to the related biological report and its appendices (USFWS 2017a, entire; USFWS 2017b, entire).

Comment: Several commenters expressed disagreement with the findings of the Service's takings analysis, stating that destruction of livestock by Mexican wolves is a taking by the Federal Government.

Our response: Damage to private property caused by protected wildlife does not constitute a “taking” of that property by a Federal agency that protects or reintroduces that wildlife.

In this rule, we:

• Revise the wording of the population objective in response to peer review of the October 29, 2021, proposed rule (86 FR 59953) to clarify our methodology to verify a stable or increasing population over an 8-year period. This clarification is set forth under Regulation Promulgation, below.

• Revise and restructure our essentiality determination from the October 29, 2021, proposed rule (86 FR 59953) to clarify the information and rationale used in our determination. The essentiality determination in this rule is provided above under Is the experimental population essential to the continued existence of the species in the wild?

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

Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the Nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The Executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

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

According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include such businesses as manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and forestry and logging operations with fewer than 500 employees and annual business less than $7 million. To determine whether small entities may be affected, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.

Importantly, the impacts of a rule must be both significant and substantial to prevent certification of the rule under the Regulatory Flexibility Act and to require the preparation of a regulatory flexibility analysis. If a substantial number of small entities are affected by the rule, but the per-entity economic impact is not significant, the USFWS may certify. Likewise, if the per-entity economic impact is likely to be significant, but the number of affected entities is not substantial, the USFWS may also certify.

In our 2015 10(j) rule, we found that the experimental population would not have significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act. The 2015 10(j) rule expanded the geographic boundaries of the MWEPA, established new management zones with provisions for initial release and translocation of Mexican wolves, revised and added allowable forms of take, and clarified definitions. We concluded that the rule would not significantly change costs to industry or governments. Furthermore, the rule produced no adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. enterprises to compete with foreign-based enterprises in domestic or export markets. We further concluded that no significant direct costs, information collection, or recordkeeping requirements were imposed on small entities by the action and that the rule was not a major rule as defined by 5 U.S.C. 804(2) (80 FR 2512, January 16, 2015, pp. 2553-2556).

Under this rule, we modify the population objective, establish a genetic objective, and temporarily restrict three of the forms of take of Mexican wolves in the MWEPA that we adopted in the January 16, 2015, final 10(j) rule (80 FR 2512). We are making these revisions to ensure the experimental population contributes to the long-term conservation and recovery of the Mexican wolf. In addition, we are maintaining the nonessential designation for the experimental population.

Because of the regulatory flexibility for Federal agency actions provided by the MWEPA's 10(j) designation, we continue to expect this rule not to have significant effects on any activities within Federal, State, or private lands within the experimental population. In regard to section 7(a)(2) of the ESA, except on National Park Service and National Wildlife Refuge System lands, the population is treated as proposed for listing, and Federal action agencies are not required to consult on their activities. Section 7(a)(4) of the ESA requires Federal agencies to confer (rather than consult) with the USFWS on actions that are likely to jeopardize the continued existence of a species. However, because a nonessential experimental population is, by definition, not essential to the survival of the species, conferencing is unlikely to be required within the MWEPA. Furthermore, the results of a conference are strictly advisory in nature and do not restrict agencies from carrying out, funding, or authorizing activities. In addition, section 7(a)(1) of the ESA requires Federal agencies to use their authorities to carry out programs to further the conservation of listed species within the experimental population area. As a result, and in accordance with these regulations, some modifications to the Federal actions within the experimental population area may occur to benefit the Mexican wolf, but we do not expect projects on Federal lands to be halted or substantially modified as a result of these regulations.

This rule will result in a larger population of Mexican wolves occupying the MWEPA over the timeframe of recovery than the 2015 10(j) rule, which has the potential to affect a greater number of small entities involved in ranching and livestock production, particularly beef cattle ranching (business activity code North American Industry Classification System (NAICS) 112111), sheep farming (business activity code NAICS 112410), and outfitters and guides (business activity code NAICS 114210). Small entities in these sectors may be affected by Mexican wolves depredating on, or causing weight loss of, domestic animals (particularly beef cattle), or preying on wild native ungulates, respectively. We have assessed impacts to small entities in the FSEIS.

Small businesses involved in ranching and livestock production may be affected by Mexican wolves depredating on domestic animals, particularly beef cattle. Direct effects to small businesses could include foregone calf or cow sales at auctions due to depredations. Indirect effects could include impacts such as increased ranch operation costs for surveillance and oversight of the herd, and weight loss of livestock when wolves are present. Ranchers have also expressed concern that a persistent presence of wolves may negatively impact their property and business values. We do not foresee a significant economic impact to a substantial number of small entities in the ranching and livestock production sector based on the information provided below.

The small size standard for beef cattle ranching entities and sheep farms as defined by the Small Business Administration are those entities with less than $1.0 million in average annual receipts ( http://www.sba.gov/content/summary-size-standards-industry-sector ). We consider close to 100 percent of the cattle ranches and sheep farms in Arizona and New Mexico to be small entities. The 2017 Census of Agriculture reports that there were 7,057 cattle and calf operations and 7,509 sheep farms in Arizona, and 10,880 cattle and calf operations and 4,047 sheep farms in New Mexico.

Of the approximately 18,000 cattle ranches in Arizona and New Mexico, 12,334 occur in counties in the MWEPA (USDA 2017). These operations account for approximately 69 percent of the total for both States. The actual number of ranches within the project area is far less than this estimate because several counties extend beyond the borders of the project area, or the ranches occur in areas where we do not expect wolf occupancy due to low habitat suitability. The Agricultural Census does not report sub-county farms or inventory, so we rely on the county numbers as the best available data for estimating the number of potentially affected small ranching operations.

Cattle ranches vary significantly in herd size, with classifications ranging from a herd of 1 to 9 animals, to those with more than 2,500 animals (2017 Census of Agriculture). Over 80 percent of these ranches have fewer than 50 head of cattle.

We assessed whether a substantial number of entities will be impacted by the regulatory revisions for the MWEPA by estimating the annual number of depredations we expect to occur within the project area when the Mexican wolf population reaches its population objective of an average of 320 wolves. We reported in the October 29, 2021, proposed rule (86 FR 59953) that between 1998 and 2019, on average, there were 151 total depredations (confirmed and unconfirmed) by Mexican wolves in any given year, which equates to 1.7 cow/calves killed for every Mexican wolf. Based on this, we estimated the average number of cattle killed (both confirmed and unconfirmed) in any given year for 320 wolves would be 544 individuals (86 FR 59953, October 29, 2021, p. 59972). We expect the experimental population to grow from its current minimum population estimate of 186 wolves to an 8-year average population of 320 wolves. Assuming that one cow is depredated per ranch, we stated in the October 29, 2021, proposed rule that we expected the number of affected ranches to increase from 151 ranches to 544 ranches when the wolf population reaches 320 individuals. At this point, if each expected depredation affects a unique ranch, then a total of approximately 4 percent of ranches in the area would be impacted. With the addition of more recently available data (wolf population and confirmed depredations in 2020 and 2021), for this final rule, we expect the average number of cattle killed (both confirmed and unconfirmed) in any given year for 320 wolves will be 607 individuals (USFWS files), affecting up to 607 individual ranches.

To the extent that some cattle ranches will most likely not be impacted by wolf recovery because they are not located in suitable habitat but are included in the total estimate of potentially affected ranches because the Agricultural Census does not provide data at a sub-county level, this estimate could understate the percentage of ranches potentially affected. However, for other reasons, this estimate could very well overstate the percentage of cattle ranches affected as we recognize that annual depredation events have not been, and may not be, uniformly distributed across the ranches operating in occupied wolf range. Rather, wolves seem to concentrate in particular areas, and to the extent that livestock are targeted by the pack for depredations, some ranch operations will be disproportionately affected. Therefore, it is more likely that fewer than 607 ranches may experience more than one depredation, rather than each of 607 ranches experiencing one depredation.

Compared to the 2017 total inventory of estimated ranch cattle (259,192) for the project area of the Blue Range Wolf Recovery Area (BRWRA), both confirmed and unconfirmed depredations per 100 Mexican wolves account for 0.2 percent of the herd size. The economic cost of Mexican wolf depredations in this time period has been a small percentage of the total value of the livestock operations. With a population objective of an average of 320 Mexican wolves in the MWEPA, the expected value of 607 cattle (189 cattle killed per 100 Mexican wolves on average for any year) at auction based on a weighted average market value for a depredated cow/calf of $1,094.72 ($2020), the total annual impact would be $664,495. If depredations uniquely affect a separate operation, then a total of 607 operations would incur an expected corresponding loss of $1,095.

Small businesses involved in ranching and livestock production could also be indirectly affected by weight loss of livestock due to the presence of Mexican wolves. For example, livestock may lose weight because wolves force them off suitable grazing habitat or away from water sources. Livestock may try to protect themselves by staying close together in protected areas where they are more easily able to see approaching wolves and defend themselves and their calves. A consequence of such a behavioral change would likely be weight loss, especially if the wolves are allowed to persist in the area for a significant amount of time because the cattle would be afraid to spread out to find more lucrative forage areas. Weight loss could also occur if the presence of wolves causes the herd to move around more rapidly as they try to keep away from wolves. Based on Ramler et al. 2014, weight loss of cattle is associated with the ranches that have suffered depredations. Therefore, we would expect the same ranches—that is, 607 ranches or fewer—that are impacted by depredations to potentially be impacted by weight loss of their cattle. Because wolves' tendency to prey on cattle is localized, we do not expect all 607 ranches and their associated herds to be impacted.

Using a mid-point estimate of 6 percent weight loss for calves at the time of auction, we calculated the impact on 2019 model ranches assuming that wolf presence pressures persisted throughout the foraging year. Based on mean market prices, a 6 percent weight loss for the herd at the time of sale could result in a profit loss of $3,079 to $16,613, depending on the size of the ranch. Under such a scenario, an affected ranch could incur a 20 percent loss in profit using the model ranch assumptions discussed in the report. This, however, is likely an overestimate of impacts that would occur, as once wolves are detected in an area, a variety of proactive and reactive management tools are available to the landowner or the USFWS and our designated agencies such that wolf presence would not persist throughout a foraging year.

This final rule is based on alternative one in our FSEIS. Under this alternative, the experimental population regulations continue to offer several provisions for harassment and take of Mexican wolves on Federal and non-Federal land to address conflict situations between wolves and livestock, although we are temporarily restricting two of these until we reach the genetic objective of 22 released wolves surviving to breeding age. The MWEPA regulations continue to provide for the initial release of captive wolves into suitable habitat in Zones 1 and 2, and we have demonstrated our intention to reduce nuisance behavior associated with adult releases by using the cross-fostering technique. Further, depredation compensation programs are available to offset some of the economic impacts of livestock depredations; these payments fully offset the impacts of confirmed depredations for some operators but do not fully offset impacts for all operators, such as those who experience unconfirmed losses for which payment is not provided.

Based on the preceding information, we find that the impact of direct and indirect effects of Mexican wolf depredations on livestock is not significant and substantial. That is, if impacts are evenly spread, less than 5 percent of small ranches in the MWEPA will be impacted, which we do not consider to be a substantial number. If impacts are disproportionately felt (several ranchers bear the burden of the depredations), the number of affected ranches will be even less (not substantial), but the impact to those affected may be significant depending on the number of cattle on the ranch and other characteristics.

Our revision of the experimental designation may also impact small business entities associated with big game hunting, due to wolves' predation on wild ungulates, specifically elk, in the MWEPA. Effects to small businesses in this sector could occur from impacts to big game populations, loss of hunter visitation, or a decline in hunter success, leading to lost income or increased costs to guides and outfitters. We would expect impacts to big game hunting to potentially occur from the increased number of wolves in the MWEPA or from the temporary restriction of the provision for take in response to an unacceptable impact to a wild ungulate herd. Negative impacts to the big game hunting economic sector would be most likely to occur during the period that this take provision is restricted because State agencies will not be able to request the removal of wolves if they are causing ungulate herds to fall below management goals ( i.e., an unacceptable impact).

As we describe in the FSEIS, we do not have a high degree of certainty as to when impacts to ungulates may occur, but we speculate based on information from gray wolves in other geographic areas that impacts will not occur prior to the wolf-to-1,000-elk ratio reaching above 4 wolves to 1,000 elk (potentially around 2024 or after). We expect to meet our genetic objective by 2030, resulting in the temporary restriction of this take provision for not more than 6 years. After the genetic objective is reached and the restriction on this take provision is lifted, the States could request the removal of wolves causing unacceptable impacts, which would result in mitigation of any reduction in hunting revenue occurring in that area. Currently, we (the Service and the State game and fish agencies) do not have information suggesting that impacts have occurred. No observable impact on wild ungulates due to wolves has been documented, nor reductions in big game hunting. In Arizona, total harvest of elk and percent success of hunters increased from 2012 to 2017 (the most recent year for which we have data) (AZGFD 2011, 2017) and stayed stable or increased slightly in New Mexico from 2012 to 2019 (NMDGF files).

For the above reasons and based on currently available information, we certify that the revision to the existing nonessential experimental population designation of the Mexican wolf will not have a significant economic impact on a substantial number of small business entities. Therefore, a regulatory flexibility analysis is not required.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ):

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

(2) This rule is not a “significant regulation action” under this act; it will not produce a Federal mandate of $100 million or greater in any year. The regulatory revisions to the MWEPA will not impose any additional management or protection requirements on the States or other entities.

In accordance with E.O. 12630, this rule does not have significant takings implications. When reestablished populations of federally listed species are designated as nonessential experimental populations, the ESA's regulatory requirements regarding the reestablished listed species within the experimental population are significantly reduced. In the 1998 final rule (63 FR 1752; January 12, 1998), we stated that one issue of concern is the depredation of livestock by reintroduced Mexican wolves, but such depredation by a wild animal would not be a taking under the 5th Amendment. One of the reasons for the experimental population is to allow the agency and private entities flexibility in managing Mexican wolves, including the elimination of a wolf when there is a confirmed kill of livestock.

A takings implication assessment is not required because this rule will not effectively compel a property owner to suffer a physical invasion of property and will not deny all economically beneficial or productive use of the land or aquatic resources. Damage to private property caused by protected wildlife does not constitute a taking of that property by a government agency that protects or reintroduces that wildlife. This rule will substantially advance a legitimate government interest (conservation and recovery of a listed species) and will not present a barrier to all reasonable and expected beneficial use of private property.

In accordance with E.O. 13132, we have considered whether this rule has significant federalism effects and have determined that a federalism summary impact statement is not required. This rule will not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. In keeping with Department of the Interior policy, we requested information from and coordinated development of this rule with the affected resource agencies in New Mexico and Arizona. Achieving the population objective for the MWEPA, which serves as one of the recovery criteria for the Mexican wolf, will contribute to the rangewide recovery of the species, which will contribute to its eventual delisting and its return to State management. No intrusion on State policy or administration is expected, roles or responsibilities of Federal or State governments will not change, and fiscal capacity will not be substantially or directly affected. This rule will operate to maintain the existing relationship between the State and the Federal Government. Therefore, this rule does not have significant federalism effects or implications to warrant a federalism assessment under the provisions of E.O. 13132.

In accordance with E.O. 12988 (February 7, 1996; 61 FR 4729), the Office of the Solicitor has determined that this rule will not unduly burden the judicial system and will meet the requirements of sections (3)(a) and (3)(b)(2) of the E.O.

This rule does not contain any new collection of information that requires approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). OMB has previously approved the information collection requirements associated with permitting and reporting requirements associated with native endangered and threatened species, and experimental populations, and assigned the following OMB control numbers:

• 1018-0094, “Federal Fish and Wildlife Permit Applications and Reports—Native Endangered and Threatened Species; 50 CFR 10, 13, and 17” (expires 01/31/2024), and

• 1018-0095, “Endangered and Threatened Wildlife, Experimental Populations, 50 CFR 17.84” (expires 9/30/2023).

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.

In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relatives with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we have considered possible effects of the revisions in this rule on federally recognized Indian Tribes. Our revisions do not include a revision to the geographic boundaries of the MWEPA, and we continue to recognize that the MWEPA overlaps with or is adjacent to Tribal lands. We notified the Native American Tribes within and adjacent to the MWEPA about this rule and invited eight Indian Tribes to serve as cooperating agencies in the development of the DSEIS. We communicated with all Indian Tribes in Arizona and New Mexico, as well as Tribes outside of Arizona and New Mexico that may have interest in land within the MWEPA, through written contact, including informational mailings from the USFWS and email notifications to attend video and teleconference informational sessions and public hearings, and to provide an opportunity to comment on the DSEIS and proposed rule. We invited all Tribes in Arizona and New Mexico to request government-to-government consultation under Secretarial Order 3206, and we held Tribal Working Group meetings, open to all Tribes, to discuss our proposed revisions within the context of Tribal land. If future activities resulting from this rule may affect Tribal resources, the USFWS will communicate and consult on a government-to-government basis with any affected Native American Tribes in order to find a mutually agreeable solution.

We have prepared a final supplemental environmental impact statement (FSEIS) pursuant to the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq. ) in connection with this rule to revise the Mexican wolf experimental population designation. The purpose of the FSEIS is to identify and disclose the environmental consequences resulting from the revision of the existing experimental population designation of the Mexican wolf. The FSEIS is an outgrowth of the public scoping process we conducted from April 15, 2020, to June 15, 2020 (85 FR 20967; April 15, 2020), and the public and peer review comments we received on the draft supplemental environmental impact statement (DSEIS) (see 86 FR 60029; October 29, 2021) and our October 29, 2021, proposed rule (86 FR 59953). We used the FSEIS, which we published in the Federal Register on May 13, 2022 (87 FR 29272), to inform our final decision on the revision to the regulations for the experimental population of Mexican wolves in the MWEPA.

E.O. 13211 requires agencies to prepare statements of energy effects when undertaking certain actions. This rule is not expected to significantly affect energy supplies, distribution, or use because this rule allows the reintroduction and management of Mexican wolves. Mexican wolves reintroduced and managed in the MWEPA do not change where, when, or how energy resources are produced or distributed. Because this action is not a significant energy action, no statement of energy effects is required.

A complete list of all references cited in this rule is available at https://www.regulations.gov at Docket No. FWS-R2-ES-2021-0103, or upon request from the Mexican Wolf Recovery Program, U.S. Fish and Wildlife Service, New Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

The primary authors of this document are the staff members of the Mexican Wolf Recovery Program (see FOR FURTHER INFORMATION CONTACT ).

The authorities for this action are the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq. ), as amended, and the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ).

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

Atlantic shark fisheries are managed primarily under the authority of the Magnuson-Stevens Act (16 U.S.C. 1801 et seq. ) and ATCA (16 U.S.C. 971 et seq. ). The 2006 Consolidated Atlantic HMS Fishery Management Plan (2006 Consolidated HMS FMP) and its amendments are implemented by regulations at 50 CFR part 635. ATCA authorizes the Secretary of Commerce to promulgate such regulations as necessary and appropriate to carry out ICCAT recommendations. The authority to issue regulations under the Magnuson-Stevens Act and ATCA has been delegated from the Secretary of Commerce to the NMFS Assistant Administrator.

Background information about the need to implement a retention limit for shortfin mako sharks was provided in the preamble to the proposed rule (87 FR 21077, April 11, 2022) and is not repeated here. The comment period for the proposed rule closed on May 11, 2022. NMFS received 22 written comments as well as oral comments during the public hearing held by webinar on April 27, 2022. The comments received, and the responses to those comments, are summarized in the Response to Comments section. After considering public comments on the proposed rule, NMFS is finalizing the rule as proposed. As described, no changes are made from the proposed rule.

NMFS has prepared an Environmental Assessment (EA), Regulatory Impact Review (RIR), and Final Regulatory Flexibility Analysis (FRFA), which analyze the anticipated environmental, social, and economic impacts of several alternatives for each of the major issues contained in this final rule. The full list of alternatives and their analyses are provided in the final EA/RIR/FRFA and are not repeated here. A summary of the FRFA is provided below. A copy of the final EA/RIR/FRFA prepared for this final rule is available from NMFS (see ADDRESSES ).

As described in the proposed rule, Recommendation 21-09, adopted at the November 2021 ICCAT annual meeting, prohibits retention of North Atlantic shortfin mako sharks caught in association with ICCAT fisheries in 2022 and 2023. Limited retention of shortfin mako sharks may be allowed in 2023 and future years if ICCAT determines that fishing mortality is at a low enough level North Atlantic-wide to allow retention consistent with the conservation objectives of the recommendation.

In order to meet domestic management objectives, implement Recommendation 21-09, and acknowledge the possibility of future retention, this final rule implements a flexible shortfin mako shark retention limit with a default limit of zero in commercial and recreational HMS fisheries. The retention limit applies to commercial vessels issued a Shark Directed or Shark Incidental LAP using pelagic longline, bottom longline, or gillnet gear, and to recreational HMS permit holders (those who hold HMS Angling or Charter/Headboat permits). It also applies to Atlantic Tunas General category and Swordfish General Commercial permits when participating in a registered HMS tournament. Retention already is not allowed for other permits and gear types (see §§ 635.21(a)(4) and 635.24(a)(4)(i) and (iii)). Thus, retention in all commercial and recreational fisheries is prohibited for 2022 consistent with the ICCAT recommendation, and all commercial and recreational fishermen are required to release all shortfin mako sharks, whether dead or alive, at haulback.

The shortfin mako shark retention limit per trip of zero will remain in place unless changed after consideration of the inseason trip limit adjustment criteria (§ 635.24(a)(8)) and consistent with any ICCAT retention allowances pursuant to Recommendation 21-09. If the retention limit is increased, it would apply only to commercial vessels issued a Shark Directed or Shark Incidental LAP using pelagic longline, bottom longline, or gillnet gear, and/or to recreational HMS permit holders (those who hold HMS Angling or Charter/Headboat permits) and Atlantic Tunas General category and Swordfish General Commercial permits when participating in a registered HMS tournament). It would not apply to other fisheries and gear types where retention is otherwise prohibited. If a retention limit greater than zero is implemented for the commercial fishery, the commercial shortfin mako shark fishing restrictions in effect prior to this final rule would once again also apply. Similarly, if a retention limit greater than zero is implemented for the recreational fishery, the recreational shortfin mako shark fishing restrictions in effect prior to this final rule would again also apply.

Additionally, under this final rule, research and sampling of shortfin mako sharks continues to be allowable under exempted fishing permits (EFPs) and scientific research permits (SRPs) (see §§ 635.27(b)(4) and 635.32). Collection of shortfin mako sharks under display permits is not allowed. Applications for EFPs and/or SRPs will be considered on a case-by-case basis. Collection of shortfin mako sharks under EFPs and/or SRPs could include sampling or limited retention where needed for scientific research. Only non-lethal sampling would be permitted on shortfin mako sharks that are alive at haulback. NMFS intends to limit any such EFPs and/or SRPs to closely monitored studies and to limit the number of such permits and the number of sharks that may be sampled and/or retained. When retention is otherwise prohibited, any retention pursuant to an EFP and/or SRP will be accounted for under the applicable shark research and display quota. If retention is otherwise permitted, consistent with ICCAT recommendations, NMFS will count any retention under EFPs and/or SRPs against the applicable ICCAT retention allowance.

NMFS is also making a minor modification to the pelagic longline gear restrictions at § 635.21(c)(1)(iv) to further clarify the shortfin mako shark live release requirements.

Written comments can be found at www.regulations.gov by searching for “NOAA-NMFS-2022-0015.” Below, NMFS summarizes and responds to the comments made on the proposed rule during the comment period.

Comment 1: NMFS received several comments in support of the proposed measures (preferred Alternative 2 in the EA for this action). Commenters stated that they supported these measures due to the ICCAT stock assessment showing that the North Atlantic shortfin mako shark stock is overfished and subject to overfishing; the role of shortfin mako sharks as apex predators in the marine ecosystem; the life history traits of this species including slow growth and late reproductive maturity; the high risk of this species to overfishing; and listing of this species as endangered on the International Union for Conservation of Nature (IUCN) Red List of Threatened Species. Some commenters supported the zero retention limit in order to allow sustainable commercial and recreational fishing for shortfin mako sharks in the future.

Response: NMFS agrees that these measures, along with other conservation and management measures that are in place, are appropriate given the stock assessment conclusion that the North Atlantic shortfin mako shark stock is overfished and subject to overfishing. These measures are based on the best scientific information available, which recognizes the species' life history traits, including late reproductive maturity. NMFS shares the commenters' view that putting a retention limit of zero in place now should contribute to allowing the population to support future sustainable fisheries.

Regarding the IUCN Red List status of shortfin mako sharks, NMFS scientists participate in the species assessment for the Red List, but NMFS does not base management actions on IUCN designations. The IUCN uses different criteria than applicable under the Endangered Species Act (ESA) for determining whether a species is threatened or endangered or for determining whether stocks are overfished or overfishing is occurring under the Magnuson-Stevens Act.

Comment 2: Several comments supported a retention limit of zero for shortfin mako sharks but stated that the retention limit should be extended domestically beyond 2023, even if some level of retention is allowed beginning in 2023 under Recommendation 21-09, and stay in place until the population is rebuilt, as determined by a stock assessment. Some commenters urged NMFS to take a precautionary approach to shortfin mako shark management. Some commenters stated that allowing retention before the population is rebuilt would be inconsistent with the best scientific information available, as required under National Standard 2 of the Magnuson-Stevens Act.

Response: NMFS disagrees that the HMS regulations should specify that the retention limit of zero for shortfin mako sharks should remain in place until the population is determined to be rebuilt. The purpose of this action is to implement ICCAT Recommendation 21-09, which includes the possibility of limited future retention of shortfin mako sharks as determined by ICCAT consistent with this recommendation. Recommendation 21-09 specifies that retention may only occur when the overall level of fishing mortality prevents overfishing with a high probability ( i.e., under 250 mt for all ICCAT parties combined). Recommendation 21-09 also provides that a rebuilding program for North Atlantic shortfin mako shark is being undertaken starting in 2022 to end overfishing immediately and gradually achieve biomass levels sufficient to support maximum sustainable yield (MSY) by 2070 with a probability of a range of between 60 and 70 percent at least. The initial aim of the recommendation is to reduce total fishing mortality, to maintain mortality at sustainable levels to rebuild the stock, and to establish a process to determine whether in any given year there is a possibility for retention. ICCAT determinations regarding longer-term retention or measures that are appropriately part of a rebuilding plan have not yet been made. As described in Chapter 4.1 of the EA, possible future increase of the shortfin mako shark retention limit above zero, consistent with the limits specified in Recommendation 21-09 and the domestic inseason adjustment criteria, would not be expected to have an adverse impact on the stock. Additionally, the U.S. portion of total ICCAT shortfin mako shark catch has historically been low (approximately 14 percent, on average, at the time of the 2017 stock assessment). Under a retention limit greater than zero, U.S. retention would continue to be limited by the commercial and recreational restrictions under the current regulations. Further, Recommendation 21-09 limits possible future retention of shortfin mako sharks to those that are dead at haulback.

Regarding National Standard 2 of the Magnuson-Stevens Act, as described in Chapter 8 of the EA, National Standard 2 requires that conservation and management measures be based on the best scientific information available. NMFS determined that the preferred Alternative 2, implemented in this action, is consistent with National Standard 2. These measures are based on the latest ICCAT Standing Committee on Research and Statistics (SCRS) stock assessment for shortfin mako sharks, and specific SCRS advice regarding recommended management approaches ( i.e., no retention) pending reduction of catch below 250 mt. Any shortfin mako shark retention allowed by ICCAT would take into consideration the best scientific information available regarding landings and dead discards across all ICCAT parties. Results from the stock assessment and the other data sources represent the best available science.

Comment 3: One commenter stated that the current commercial fishery restrictions would apply if the flexible shortfin mako shark retention limit were increased above zero, and that the current restrictions are inadequate to rebuild the population.

Response: Regarding the commercial fishery regulations in effect prior to this final rule, in the FEIS for Amendment 11 to the 2006 Consolidated HMS FMP (Amendment 11), NMFS concluded that the commercial measures would have short- and long-term minor beneficial ecological impacts to the North Atlantic shortfin mako shark stock. The Amendment 11 measures were implemented to reduce U.S. shortfin mako shark catch to levels consistent with ending overfishing and beginning to rebuild the stock. U.S. shortfin mako shark catch is a small percentage of total North Atlantic-wide catch and so domestic reductions in shortfin mako shark mortality alone cannot end overfishing of, or rebuild, the entire North Atlantic stock.

Comment 4: NMFS received several comments in support of a non-preferred alternative (Alternative 3) to prohibit retention of shortfin mako sharks through placing the species on the Atlantic HMS prohibited sharks list. Commenters stated that this alternative would be in line with the SCRS advice and Recommendation 21-09. Commenters also stated that NMFS' analyses show that this measure would not have substantial economic impacts on commercial or for-hire fisheries or HMS tournaments. One commenter stated that shortfin mako sharks also meet one of the criteria for putting sharks on the prohibited species list, § 635.34(c)(4), because the species is difficult to distinguish from other prohibited species, since it is easily confused with longfin mako sharks.

Response: NMFS is not implementing Alternative 3 (prohibit retention of shortfin mako sharks) at this time because that measure would be beyond the scope of this action to implement ICCAT Recommendation 21-09. Under § 635.34(c), NMFS considers four criteria when placing a species on the Atlantic HMS prohibited species list. These criteria are: (1) Biological information indicating that the stock warrants protection; (2) Information indicating that the species is rarely encountered or observed caught in HMS fisheries; (3) Information indicating that the species is not commonly encountered or observed caught as bycatch in fishing operations for species other than HMS; and (4) Whether the species is difficult to distinguish from other prohibited species.

Although shortfin mako sharks meet criteria 1 and 3 of the four prohibited species criteria, NMFS is not adding shortfin mako sharks to the prohibited species list for several reasons. First, if ICCAT should make changes to the retention allowance in the future under Recommendation 21-09, the preferred alternative gives NMFS flexibility to make changes to the retention limit quickly to allow U.S. fishermen the opportunity to potentially land shortfin mako sharks, or to again prohibit retention quickly by setting the limit at zero when needed. Additionally, the shortfin mako shark mortality associated with current U.S. landings is minimal when compared to the total North Atlantic shortfin mako shark mortality. Therefore, NMFS is not implementing this alternative at this time.

Regarding criterion four, shortfin mako sharks are not easily confused with other shark species. The species that look the most like shortfin mako sharks are porbeagle and white sharks. However, there are several clear differences in their dorsal fin coloration, second dorsal fin position, and teeth. Porbeagle sharks have a unique white patch on the trailing edge of the first dorsal fin, which makes the mark a great identification characteristic that can easily be seen while the shark is alive and in the water. The position of the second dorsal fin is in line with the anal fin in porbeagle and shortfin mako sharks, while the second dorsal fin is positioned between the pelvic and anal fin in white sharks. If the shark is brought to the vessel dead, fishermen could also examine the teeth before deciding whether the species can be retained. Specifically, porbeagle sharks have smooth, bladelike teeth with cusplets, while shortfin mako sharks have smooth, bladelike teeth without cusplets, and white sharks have large, triangular, serrated teeth. One of the commenters suggested that shortfin mako sharks could be mistaken for longfin mako sharks. NMFS has not found that to be true. Longfin mako sharks have been on the prohibited species list since 2000. During that time, few fishermen have mistaken the species for shortfin mako sharks. Compared to shortfin mako sharks, longfin mako sharks have much longer pectoral fins, have a different body shape, and are dark on the underside of the snout.

Comment 5: One comment supported the proposed flexible retention limit for shortfin mako sharks as a short-term solution with the goal of ultimately adding the shortfin mako shark to the prohibited sharks list in the long-term.

Response: For the reasons described in the responses to Comments 1 and 4 and Chapter 4 of the EA, NMFS is implementing the measures under preferred Alternative 2 to implement a flexible shortfin mako shark retention limit with a default limit of zero, and is not adding the species to the HMS prohibited sharks list under Alternative 3. This does not preclude NMFS from adding shortfin mako sharks to the prohibited sharks list in the future if new information or international or domestic action necessitate that measure, for example, under a future ICCAT recommendation or following domestic determinations under the ESA.

Comment 6: NMFS received several comments supporting a ban on shortfin mako shark retention, rather than a flexible retention limit with a default limit of zero. Commenters supported banning retention due to the ICCAT stock assessment showing that the North Atlantic shortfin mako shark stock is overfished and subject to overfishing; the scientific advice and projections from the SCRS, including that the population will continue to decline for several years before it begins to recover, even with no retention; the need to incentivize avoidance of this species by fishing vessels; the high susceptibility of the species as identified in the SCRS Ecological Risk Assessment for sharks; the role of shortfin mako sharks as apex predators in the marine ecosystem; the life history traits of this species including slow growth and late reproductive maturity; listing of this species as endangered on the IUCN Red List; the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) status of this species; and the need to save this species from extinction. Some commenters specifically opposed flexibility in the retention limit. One commenter supported maintaining a full retention ban until at least 2035 or whenever a new stock assessment demonstrates rebuilding will be successful.

Response: NMFS disagrees that the Agency should implement a retention ban for shortfin mako sharks, which NMFS understands to mean implementing a retention limit of zero with no flexibility to increase the retention limit in the future. NMFS believes that implementation of the preferred alternative, including a flexible retention limit, best meets the purpose and need for this action: to implement ICCAT Recommendation 21-09. If retention is later allowed by ICCAT pursuant to the provisions in the recommendation, section 304(g)(1)(D) of the Magnuson-Stevens Act requires the Agency to provide fishing vessels with a reasonable opportunity to harvest U.S. allocation or quota under an international fishery agreement. Under these measures, NMFS could change the shortfin mako shark retention limit based on the inseason trip limit adjustment criteria where consistent with any future retention allowance that is determined by ICCAT consistent with Recommendation 21-09. ICCAT adopted Recommendation 21-09 in order to address the stock status of North Atlantic shortfin mako sharks (overfished and experiencing overfishing) and recognizing the results of the SCRS ecological risk assessment for sharks and the SCRS advice that, regardless of allowable catch levels, the shortfin mako shark spawning stock biomass will continue to decline until 2035 before any increase can occur, owing to the time it takes juveniles to reach maturity. As described in Chapter 4 of the EA, these measures may have the effect of disincentivizing shortfin mako shark catch, although only to the extent commercial fishermen could further explore and find ways to avoid shortfin mako sharks through gear modification or changing fishing locations.

Regarding CITES status, the CITES status of shortfin mako sharks has been addressed in the United States through appropriate permitting requirements, and is outside the scope of this rulemaking. CITES classifies species based on the level of trade monitoring needed to ensure the population recovers or remains healthy. Through CITES, the United States has agreed to increase protections and international trade monitoring for a number of shark species, including shortfin mako sharks. Shortfin mako sharks are included in CITES Appendix II, under which commercial international trade is allowed, and in the United States permit requirements specific to CITES are managed primarily by the U.S. Fish and Wildlife Service. IUCN Red List status of shortfin mako sharks is discussed in the response to Comment 1.

Comment 7: NMFS received a comment that retention of shortfin mako sharks for scientific research should be banned as well, because that activity risks fatal injuries to the sharks.

Response: Determinations regarding individual EFPs or SRPs for shortfin mako research would be made on a case-by-case basis; NMFS is not authorizing any particular research, retention, or sampling with this final rule. NMFS disagrees that scientific research sampling of shortfin mako sharks should be banned under HMS EFPs and SRPs. As described in Chapter 2 of the EA, considering the fact that the shortfin mako shark retention limit will otherwise be set at zero, NMFS intends to limit any EFPs and SRPs to closely monitored studies, and to limit the number of such permits and the number of sharks that may be retained, if any. Research on shortfin mako sharks is critical to gathering scientific information about the stock and to helping ensure that stock assessments have sufficient data. Permitted collection of shortfin mako sharks for scientific research is consistent with the biological sampling and research needs described in Recommendation 21-09 and other relevant ICCAT recommendations, as well as research needs identified by the SCRS, including to provide data for future shortfin mako shark stock assessments. For example, Recommendations 21-09 and 13-10 ( Recommendation on Biological Sampling of Prohibited Shark Species by Scientific Observers ) provide for collection of biological samples of shortfin mako and other sharks that are dead at haulback during commercial fishing operations by scientific observers or individuals duly permitted by the ICCAT party.

Comment 8: Some comments supported including all relevant commercial and recreational fisheries in the scope of this rulemaking, including fisheries, such as bottom longline and gillnet shark fisheries, which are not considered ICCAT fisheries.

Response: NMFS agrees with the commenters on including gears that are not associated with ICCAT fisheries, such as bottom longline and gillnet shark fisheries, in this action. This approach is consistent with the approach taken in Amendment 11, where NMFS determined it was appropriate to implement parallel management measures in the non-ICCAT shark fisheries given that the stock remained overfished with overfishing occurring. This approach ensures consistency in HMS regulations across gear types, which will provide clarity for both the regulated community and for enforcement purposes and thus ensure more effective implementation. The purpose of this action is to implement ICCAT Recommendation 21-09, which prohibits the retention of North Atlantic shortfin mako sharks caught in association with ICCAT fisheries in 2022 and 2023, among other measures. In this action, after considering the measures implemented under Amendment 11 that considered the requirements of the Magnuson-Stevens Act, the status of shortfin mako sharks, and the need for consistency, NMFS is applying a flexible retention limit with a default of zero to non-ICCAT fishery gear types (bottom longline and gillnet).

Comment 9: NMFS received a comment that the alternative to prohibit retention of shortfin mako sharks is the most consistent with National Environmental Policy Act (NEPA) requirements, since public comment would be taken on any future action to allow retention. The commenter stated that the flexible retention limit under the preferred alternative, on the other hand, would not require public comment to increase the retention limit, which would be inconsistent with NEPA requirements. The commenter further stated that the preferred alternative did not analyze an upper retention limit and therefore the analyses in the EA are inadequate.

Response: NMFS disagrees that increasing the shortfin mako shark retention limit in the future would be inconsistent with NEPA requirements. Inseason trip limit adjustment criteria are described in the current HMS regulations (see § 635.24(a)(8)), as augmented in this action, and those regulatory criteria would be used for any future adjustment of the shortfin mako shark retention limit, as they are currently for adjustment of other shark retention limits (for example, § 635.24(a)(2)). In addition, any future change to the shortfin mako shark retention limit would be implemented only to the extent future retention is allowable as determined by ICCAT consistent with Recommendation 21-09. Although an upper per trip retention limit for shortfin mako sharks is not analyzed in this action, the EA effectively analyzes the possible effects of any retention limit increases that fall within (and would effectuate) a future U.S. retention allowance under the current Recommendation. A future U.S. retention allowance would occur within the Recommendation's overall limit on total fishing mortality and the United States' portion of that allowance and would not have additional impacts outside those analyzed. Furthermore, any retention allowance for the United States would likely be small since it must be under 250 mt for all ICCAT parties combined, and the U.S. portion of total ICCAT shortfin mako shark catch has historically been low. When NMFS establishes a per-trip retention limit, it will constrain U.S. catch within that U.S. retention allowance. Additionally, under a retention limit greater than zero, U.S. shortfin mako shark retention would continue to be limited by the commercial and recreational restrictions in the current regulations, along with additional restrictions on retention of sharks that are alive at haulback. Recommendation 21-09 only allows for possible future retention of shortfin mako sharks that are dead at haulback, which further restricts possibilities for U.S. retention under a possible future retention allowance. These measures for shortfin mako sharks are analyzed in the EA for this action under preferred Alternative 2, considering public comments received on the proposed rule and draft EA and IRFA, consistent with NEPA requirements.

Comment 10: NMFS received comments, including from the State of Georgia, opposing implementation of a default retention limit of zero for shortfin mako sharks in directed shark fisheries or in recreational fisheries. Commenters stated that the United States has already effectively reduced shortfin mako shark catch in proportion to the U.S. contribution to stock-wide catches. The State of Georgia also commented that the Agency should not implement measures beyond those under Amendment 11 in directed shark fisheries, and that the HMS regulations implementing ICCAT recommendations on oceanic whitetip sharks and hammerhead sharks were not implemented in non-ICCAT, directed shark fisheries for consistency.

Response: NMFS agrees that the measures implemented under Amendment 11 were effective at meeting the management objectives of that action, and reduced catch levels of shortfin mako sharks in U.S. fisheries to a level consistent with ending overfishing of the stock. However, as described under the No Action Alternative (Alternative 1) in Chapter 4 of the EA, the current measures are not sufficient to meet the purpose and need for the present action. The purpose of this action is to implement ICCAT Recommendation 21-09, which prohibits the retention of North Atlantic shortfin mako sharks. The action is needed because the current HMS regulations, which allow limited retention of shortfin mako sharks in commercial and recreational fisheries, are inconsistent with the requirements of Recommendation 21-09.

NMFS disagrees that shortfin mako shark retention limit should not apply in directed shark fisheries. As described in Chapter 2 of the EA, the flexible retention limit would apply in the HMS bottom longline and gillnet fisheries for sharks, although those fisheries are not considered to be ICCAT fisheries, which are defined as fisheries for tuna or tuna-like species under the current ICCAT Convention. This approach is consistent with the approach taken in Amendment 11, where NMFS determined it was appropriate to implement parallel management measures in the non-ICCAT shark fisheries given that the stock remained overfished with overfishing occurring. This approach would ensure consistency in HMS regulations, which would provide clarity for both the regulated community and for enforcement purposes and thus ensure more effective implementation. NMFS did not, however, implement the ICCAT requirement that electronic monitoring be onboard in these fisheries, because bottom longline and gillnet fisheries have minimal interactions with this species, and electronic monitoring was unnecessary to track such interactions effectively. After considering the measures implemented under Amendment 11 that considered the requirements of the Magnuson-Stevens Act, the status of shortfin mako sharks, and the need for consistency, NFMS would apply a flexible retention limit with a default of zero to these gears.

Comment 11: Several commenters suggested measures that could be implemented instead of a retention limit of zero in the recreational fishery. Suggestions included a recreational limit of one shortfin mako shark per vessel per year; a limit of two sharks per year: one trophy size and one for personal consumption; banning the retention of females; banning retention in tournaments; mandatory reporting; increasing the minimum sizes; and managing shortfin mako sharks like deer ( i.e., through administration of a system that provides fishermen with a tag or limited number of tags). NMFS received a suggestion to implement a fee for each shortfin mako shark caught, and a higher fee if the shark is brought to the vessel dead.

Response: NMFS appreciates the comments suggesting ways to allow retention of shortfin mako sharks while reducing the overall number of sharks harvested. However, allowing retention of shortfin mako sharks would not be consistent with the purpose of this action to implement ICCAT Recommendation 21-09, which prohibits the retention of North Atlantic shortfin mako sharks in 2022 and 2023. NMFS is implementing a flexible shortfin mako shark retention limit with a default limit of zero for HMS permit holders. The limit of zero remains in place until NMFS changes it following consideration of regulatory criteria for inseason adjustment of shark trip limits and consistent with any ICCAT retention allowances pursuant to Recommendation 21-09. If a retention limit greater than zero is implemented for the recreational fishery, the current recreational shortfin mako shark restrictions would again also apply, including minimum size limits of 71 inches fork length (FL) (180 cm FL) for male and 83 inches FL (210 cm FL) for female shortfin mako sharks. Also of note, Recommendation 21-09 limits possible future retention of shortfin mako sharks to those that are dead at haulback. NMFS may consider additional management measures if ICCAT restrictions allow more retention of shortfin mako sharks in the future. For example, mandatory recreational catch reporting for pelagic sharks, including shortfin mako, may be considered in an upcoming rulemaking focused on reporting.

Comment 12: The State of Georgia commented that retention of oceanic whitetip and scalloped hammerhead sharks should be prohibited in Atlantic HMS fisheries due to their ESA threatened status.

Response: This comment is outside the scope of this rulemaking. NMFS notes, however, that in 2020, NMFS released two Biological Opinions for HMS Fisheries under section 7(a)(2) of the ESA. These Biological Opinions strongly encouraged the inclusion of oceanic whitetip and scalloped hammerhead sharks as prohibited shark species for recreational and/or commercial Atlantic HMS fisheries. As a result, NMFS is currently considering undertaking rulemaking that considers prohibiting the commercial and recreational retention of scalloped hammerhead sharks in the Central and Southwest distinct population segment and of oceanic whitetip sharks throughout their range, consistent with the 2020 Biological Opinions. That proposed rule is expected later in 2022. This information is also included in Chapter 4.8 of the EA.

Comment 13: Some comments opposed allowing targeted catch-and-release recreational fishing for shortfin mako sharks.

Response: NMFS disagrees that targeted catch-and-release recreational fishing for shortfin mako sharks should not be permitted when the default retention limit of zero is in place. The purpose of this action is to implement ICCAT Recommendation 21-09, which prohibits retention of shortfin mako sharks. Catch-and-release fishing is consistent with the measures in Recommendation 21-09 and with implementation of a flexible retention limit with a default of zero. The retention limit of zero would prevent recreational fishermen from retaining shortfin mako sharks, which would reduce mortality. Allowing catch-and-release fishing is consistent with non-retention requirements. As described in Chapter 4 of the EA, studies have shown that post-release mortality among recreationally caught shortfin mako sharks is relatively low. Overall, the recreational measures, including a default retention limit of zero while allowing catch-and-release fishing, are anticipated to have a minor, beneficial effect on the stock. Additionally, by allowing fishermen to catch-and-release shortfin mako sharks, data required for stock assessments would continue to be collected. Specifically, NMFS could continue to collect recreational survey data for shortfin mako sharks, including data on effort and catch rates. Regarding socioeconomic impacts on the recreational fishery, as described in Chapter 4 of the EA, prohibiting catch-and-release fishing for shortfin mako sharks would double the estimated loss to supporting businesses and industries in recreational trip expenditures, increasing adverse impacts compared to the preferred alternative (reduction of $2.4 million in trip expenditures, compared to reduction of $1.1 million under the preferred alternative).

Comment 14: NMFS received a comment that the proposed rule only considered commercial fisheries and tournaments. The commenter requested that the recreational sector outside of tournaments be included if retention is allowed.

Response: This final rule implements a flexible shortfin mako shark retention limit with a default limit of zero in commercial and recreational HMS fisheries. To the extent that any future retention is allowed, consistent with the inseason trip limit adjustment criteria and Recommendation 21-09, any increase of the shortfin mako shark retention limit from the default, or subsequent decrease, could apply to the commercial fishery, the recreational fishery, or both. If the retention limit is increased above zero in the recreational fishery, that change could apply to both tournament and non-tournament fishing. Individual anglers, in additional to tournaments, are included in this action overall and in the analyses in the EA.

Comment 15: One commenter requested data on where overharvest of shortfin mako sharks is occurring and the harvest data for each country involved.

Response: NMFS acknowledges that countries other than the United States are responsible for the majority of North Atlantic shortfin mako shark fishing mortality, hence the need for international coordination through ICCAT on measures to end overfishing and rebuild the stock. Reported harvest levels by country are provided in the Task I catch data tables in the annual SCRS reports (2021 report available at https://www.iccat.int/Documents/Meetings/Docs/2021/REPORTS/2021_SCRS_ENG.pdf, shortfin mako shark data table on pages 260-261) and the ICCAT statistical database website ( https://www.iccat.int/en/accesingdb.html ).

Comment 16: NMFS received comments that the Magnuson-Stevens Act requires the Agency to develop a rebuilding plan for shortfin mako sharks since the stock was determined to be in an overfished condition.

Response: NMFS has an obligation to implement binding ICCAT recommendations under ATCA, consistent with our obligations under the ICCAT treaty. The Magnuson-Stevens Act requires NMFS to take measures to end overfishing and to rebuild the stocks. North Atlantic shortfin mako shark distribution spans a large portion of the North Atlantic Ocean basin and many countries besides the United States interact with the species. Addressing overfishing and an overfished status can only effectively be accomplished through international efforts where other countries that have large landings of shortfin mako sharks actively and equitably participate in mortality reduction and rebuilding plan discussions. Because of the small U.S. contribution to North Atlantic shortfin mako shark mortality, domestic reductions of shortfin mako shark mortality alone would not end overfishing of the entire North Atlantic stock. Under Amendment 11, NMFS established the foundation for developing an international rebuilding plan for shortfin mako sharks, by adopting measures to end overfishing and taking action at the international level through ICCAT to develop a rebuilding plan. As part of that measure, Amendment 11 stated that any international management recommendations adopted by ICCAT to address shortfin mako shark rebuilding and to reduce mortality would be implemented domestically consistent with ATCA, including measures implemented under that amendment. This action implements ICCAT Recommendation 21-09 in an effective way, addressing overfishing and starting to rebuild the stock. The measures in Recommendation 21-09 were adopted as part of a rebuilding program for North Atlantic shortfin mako shark starting in 2022, with the objectives to “end overfishing immediately and gradually achieve biomass levels sufficient to support maximum sustainable yield (MSY) by 2070 with a probability of a range of between 60 and 70 percent at least.”

Comment 17: One commenter stated that NMFS should specify and implement additional catch monitoring and reporting measures to collect accurate and precise shortfin mako shark catch and bycatch information. Suggested measures include improving recreational data, enhancing commercial monitoring, and creating a public reporting portal for the recreational and commercial fisheries.

Response: NMFS agrees that catch monitoring and reporting are critical components of managing shortfin mako sharks, both at ICCAT and domestically, and that improvements to recreational data reporting are necessary at the international level. Toward this end, the United States advocated for strong reporting requirements to be included in Recommendation 21-09, including that ICCAT parties present their statistical methodology used to estimate dead discards and live releases to the SCRS and that the SCRS review and approve or provide feedback on those methods, and that parties that do not appropriately report their shortfin mako shark landings and discards would not be able to retain this species when retention is otherwise allowable. These provisions were included in the recommendation (see paragraphs 13 and 14).

NMFS is not adopting additional catch monitoring and reporting requirements in this action. The purpose of this action is to implement ICCAT Recommendation 21-09. U.S. shortfin mako shark catch monitoring and reporting meet the requirements of Recommendation 21-09 and other relevant ICCAT recommendations, as well as domestic requirements. Therefore, NMFS does not agree that additional measures should be implemented under this action. Enhanced reporting may be considered in future rulemakings, for example, mandatory reporting of recreational catch of all pelagic sharks.

Comment 18: NMFS received a comment that the Agency should require full-chain traceability for all catches of shortfin mako sharks through the Seafood Import Monitoring Program and the pending Food and Drug Administration traceability rules, in order to close a loophole for any illegal catch of North Atlantic shortfin mako sharks.

Response: This comment is beyond the scope of this rulemaking. The purpose of this action is to implement ICCAT Recommendation 21-09, which prohibits the retention of North Atlantic shortfin mako sharks caught in association with ICCAT fisheries in 2022 and 2023, among other measures. For more information on the Seafood Import Monitoring Program, please refer to the website: https://www.fisheries.noaa.gov/international/seafood-import-monitoring-program.

Comment 19: NMFS received comments that the Agency recommends a probability of 70 percent for rebuilding of overfished stocks in domestic fisheries, which commenters stated was not in line with past U.S. proposals on shortfin mako shark management at ICCAT, or with the 250-mt mortality threshold in Recommendation 21-09.

Response: Consistent with the 2006 Consolidated HMS FMP, the HMS management risk policy for most Atlantic shark stocks is to ensure a 70-percent likelihood of success in ending and preventing overfishing, rebuilding overfished stocks, and maintaining healthy stocks, because most sharks have low reproductive potential, are long-lived, and have slow population growth rates. Within the existing risk policy, a range between 50 and 70 percent likelihood of success has also been considered depending on the stock and relevant circumstances, and is determined on a case-by-case basis.

The purpose of this action is to implement ICCAT Recommendation 21-09 on North Atlantic shortfin mako sharks. The measures in Recommendation 21-09 were adopted as part of a rebuilding program for North Atlantic shortfin mako shark starting in 2022 with the objectives to “end overfishing immediately and gradually achieve biomass levels sufficient to support MSY by 2070 with a probability of a range of between 60 and 70 percent at least.” These measures are consistent with ICCAT Recommendation 11-13 on the principles of decision making for ICCAT conservation and management measures and are also consistent with the HMS shark management risk policy and Magnuson-Stevens Act requirements.

Comment 20: One comment suggested that NMFS should consider the example of barndoor skate management, in which only limited landings under special permits were allowed before the population was declared fully rebuilt.

Response: Barndoor skates are managed by the New England Fishery Management Council under the Northeast Skate Complex FMP (Skate FMP). The stock was determined to be overfished and possession and landing were prohibited in 2003 when the Skate FMP was first implemented (68 FR 49693, August 19, 2003). As the stock was rebuilding, segments of the commercial skate fishery expressed an interest in developing an experimental fishery where limited landings would be permitted while collecting fishery and biological data. The study was approved under an EFP in 2014 (79 FR 26414, May 8, 2014), and the retention prohibition was ultimately removed in 2018 after the barndoor skate stock was determined to be rebuilt (83 FR 48985, September 28, 2018). While NMFS and the New England Fishery Management Council felt that this approach and timing were appropriate given the stock conditions and specific fishery circumstances in this case, there are a wide variety of considerations and information that fishery managers must evaluate when determining whether to prohibit retention of a species and potentially permitting retention of prohibited species. There are a number of critical differences between the barndoor skate fishery and fisheries that catch shortfin mako sharks; for example, barndoor skate is not internationally managed, is not a North Atlantic-wide stock, and does not have a recreational fishery.

The purpose of this action is to implement ICCAT Recommendation 21-09, including allowing for the possibility of limited future retention of shortfin mako sharks as determined by ICCAT consistent with this recommendation. Prohibiting shortfin mako shark retention while also allowing limited commercial retention under EFPs would not be consistent with the purpose of this action. Therefore, NMFS does not agree that barndoor skate fishery management is an appropriate model for U.S. shortfin mako shark fishery management.

Comment 21: NMFS received comments that the Agency should expand the electronic monitoring requirement for retention of shortfin mako sharks that are dead at haulback in commercial fisheries to cover vessels fishing with bottom longline or gillnet gear, in addition to vessels fishing with pelagic longline gear.

Response: In this action, the flexible shortfin mako shark retention limit with a default of zero applies in the HMS bottom longline and gillnet fisheries for sharks, although those fisheries are not considered to be ICCAT fisheries, which are defined as fisheries for tuna or tuna-like species under the current ICCAT Convention. This approach is described in the responses to Comments 8 and 10. NMFS did not, however, implement a requirement that electronic monitoring be onboard in these fisheries in Amendment 11, because bottom longline and gillnet fisheries have minimal interactions with this species, and electronic monitoring was unnecessary to track such interactions effectively. The details of the bottom longline and gillnet requirements under Amendment 11 were referenced in this action in order to better explain the scope of the gears included under changes to the shortfin mako shark retention limit. However, NMFS did not propose or consider any changes to the electronic monitoring requirements in this action. The purpose of the action is to implement ICCAT Recommendation 21-09, which does not require any regulatory changes in the United States regarding electronic monitoring. Therefore, this comment is beyond the scope of this rulemaking.

Comment 22: NMFS received comments encouraging the Agency to respond to the 2021 petition from Defenders of Wildlife to list shortfin mako sharks as a threatened or endangered species under the ESA.

Response: NMFS is actively working on the 12-month finding to consider listing shortfin mako sharks under the ESA and plans to release the determination soon. Because this comment refers to listing species under the ESA, this is beyond the scope of this rulemaking.

Comment 23: NMFS received comments that the United States should seek to extend no retention of shortfin mako sharks at ICCAT, rather than adhering to possible future retention according to Recommendation 21-09. Another comment suggested that the United States should submit a proposal at ICCAT to limit total mortality of South Atlantic shortfin mako sharks, including the same reporting requirements as in Recommendation 21-09.

Response: These comments are beyond the scope of this rulemaking. To the extent that these comments are suggesting development of U.S. proposals at ICCAT, U.S. proposals and priorities for ICCAT generally are discussed in the context of the U.S. ICCAT Advisory Committee meetings, which typically have at least one session open to the public.

Comment 24: NMFS received a comment calling for banning longline gear and all shark fisheries.

Response: National Standard 1 of the Magnuson-Stevens Act requires NMFS to prevent overfishing while achieving, on a continuing basis, optimum yield from each fishery for the U.S. fishing industry. NMFS continually monitors the federal shark fisheries and, based on the best available scientific information, takes action needed to conserve and manage the fisheries. The purpose of this action is to implement ICCAT Recommendation 21-09 regarding North Atlantic shortfin mako sharks, as necessary and appropriate pursuant to ATCA, and to achieve domestic management objectives under the Magnuson-Stevens Act. Recommendation 21-09 prohibits retention of North Atlantic shortfin mako sharks caught in association with ICCAT fisheries in 2022 and 2023, among other measures. The measures in Recommendation 21-09 were adopted as part of a rebuilding program for North Atlantic shortfin mako shark starting in 2022, with the objectives to “end overfishing immediately and gradually achieve biomass levels sufficient to support maximum sustainable yield (MSY) by 2070 with a probability of a range of between 60 and 70 percent at least.” Banning longline gear and shark fisheries is beyond the scope of this action.

NMFS is issuing this rule pursuant to section 305(d) of the Magnuson-Stevens Act. The NMFS Assistant Administrator has determined that the final rule is consistent with the 2006 Consolidated HMS FMP and its amendments, other provisions of the Magnuson-Stevens Act, ATCA, and other applicable law.

There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effective date and to make the rule effective three days after publication in the Federal Register . Further delaying the effectiveness of these regulations could undermine the purpose of this action to implement ICCAT Recommendation 21-09, which was adopted in November 2021 and enters into force June 17, 2022. If effectiveness is delayed, retention of shortfin mako sharks will continue to be allowed in Atlantic HMS fisheries under the current regulations well past the entry into force date of, and contrary to the requirements of, this binding international measure. For all of these reasons, there is good cause to waive the 30-day delay in the date of effectiveness.

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

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

A final regulatory flexibility analysis (FRFA) was prepared for this rule. The FRFA incorporates the initial regulatory flexibility analysis (IRFA), a summary of the significant issues raised by the public comments in response to the IRFA, NMFS' responses to those comments, and a summary of the analyses completed to support the action. A copy of this analysis is available from NMFS (see ADDRESSES ). A summary is provided below.

Section 604(a)(1) of the Regulatory Flexibility Act (RFA) requires agencies to state the need for, and objective of, the final action. This action is needed because the current HMS regulations allow retention of shortfin mako sharks in certain limited circumstances in HMS fisheries, which is inconsistent with the 2021 ICCAT recommendation. Under ATCA, NMFS is required to promulgate regulations as necessary and appropriate to implement binding ICCAT measures. This action is also needed in the non-ICCAT fisheries to provide consistency for the regulated community and for enforcement purposes, making the management measures more effective in addressing overfishing and starting to rebuild the stock.

The objective of this action is to implement ICCAT Recommendation 21-09 regarding North Atlantic shortfin mako sharks, as necessary and appropriate pursuant to ATCA, and to achieve domestic management objectives under the Magnuson-Stevens Act. Recommendation 21-09 prohibits retention of North Atlantic shortfin mako sharks caught in association with ICCAT fisheries in 2022 and 2023, among other measures. The measures in Recommendation 21-09 were adopted as part of a rebuilding program for North Atlantic shortfin mako shark starting in 2022, with the objectives to “end overfishing immediately and gradually achieve biomass levels sufficient to support maximum sustainable yield (MSY) by 2070 with a probability of a range of between 60 and 70 percent at least.” See Chapter 1 of the EA for a full description of the need for and objectives of the final rule.

Section 604(a)(2) of the RFA requires a summary of significant issues raised by the public in response to the IRFA, a summary of the agency's assessment of such issues, and a statement of any changes made as a result of the comments. NMFS received 22 written comments on the proposed rule and Draft EA during the public comment period. A summary of those comments and the agency's responses are described above. The comments did not refer to the IRFA or the economic impacts of the rule. One commenter (see Comment 3) noted that the rule would not have substantial economic impacts on commercial or for-hire fisheries or HMS tournaments.

Section 604(a)(3) of the RFA requires the response of the agency to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA) in response to the proposed rule, and a detailed statement of any change made to the proposed rule in the final rule as a result of the SBA comments. NMFS did not receive comments from the Chief Counsel for Advocacy of the SBA in response to the proposed rule.

Section 604(a)(4) of the RFA requires agencies to provide descriptions of, and where feasible, an estimate of the number of small entities to which the rule would apply. NMFS established a small business size standard of $11 million in annual gross receipts for all businesses in the commercial fishing industry (NAICS 11411) for RFA compliance purposes. The SBA has established size standards for all other major industry sectors in the United States, including the scenic and sightseeing transportation (water) sector (NAICS code 487210), which includes for-hire (charter/party boat) fishing entities. The SBA has defined a small entity under the scenic and sightseeing transportation (water) sector as one with average annual receipts (revenue) of less than $8 million.

NMFS considers all HMS permit holders, both commercial and for-hire, to be small entities because they had average annual receipts of less than their respective sector's standard of $11 million and $8 million. Regarding those entities that would be directly affected by the final measures, the average annual revenue per active pelagic longline vessel is estimated to be $202,000, based on approximately 90 active vessels that produced an estimated $18.2 million in revenue in 2020, well below the NMFS small business size standard for commercial fishing businesses of $11 million. No single pelagic longline vessel has exceeded $11 million in revenue in recent years. Other non-longline HMS commercial fishing vessels typically earn less revenue than pelagic longline vessels and, thus, would also be considered small entities.

The final rule would apply to the 213 Shark Directed limited access permit (LAP) holders, 256 Shark Incidental LAP holders, and 4,055 HMS Charter/Headboat permit holders, based on 2021 data. Of those HMS Charter/Headboat permit holders, 3,021 obtained shark endorsements. In 2018 and 2019, 800 HMS for-hire trips targeting shortfin mako sharks were taken per year on average (7 percent on average of total HMS for-hire trips), from Maine to Virginia as captured in Large Pelagics Survey data. These trips were taken by, on average, 10 percent of HMS for-hire charter/headboat vessels. On average, there were 44 Atlantic HMS tournaments that targeted pelagic sharks (primarily shortfin mako sharks) in 2018 through 2021. There were approximately 1,555 directed shortfin mako shark trips in registered HMS tournaments on average in 2018 through 2021. On average, 26 federally-permitted dealers per year purchased shortfin mako sharks in 2018 through 2020. NMFS has determined that the preferred alternative would not likely directly affect any small organizations or small government jurisdictions defined under the RFA, nor would there be disproportionate economic impacts between large and small entities.

Section 604(a)(5) of the RFA requires agencies to describe any new reporting, record-keeping, and other compliance requirements. This action does not contain any new collection of information, reporting, or record-keeping requirements.

Section 604(a)(6) of the RFA requires agencies to describe the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, 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.

As described below, NMFS analyzed several different alternatives in this final rulemaking and provides rationales for identifying the preferred alternatives to achieve the desired objectives. The FRFA assumes that each vessel will have similar catch and gross revenues to show the relative impact of the final action on vessels.

Alternative 1, the no action alternative, would not implement any new management measures in the commercial or for-hire shark fisheries to decrease mortality of shortfin mako sharks. In recent years, about 49,000 pounds dressed weight (dw) (22,000 kilograms dw) of shortfin mako sharks have been landed commercially on average from 2018 through 2020 and the commercial revenues from shortfin mako sharks have averaged approximately $96,000 per year. The number of pounds of shortfin mako shark landed, revenue, and number of pelagic longline vessels that landed shortfin mako sharks was lower in 2020 compared to 2018 and 2019 (average landings in 2018 and 2019 were 55,700 pounds dw (25,000 kilograms dw), average revenue was approximately $109,600 per year, and average number of pelagic longline vessels landing shortfin mako sharks was 53). Almost all of the shortfin mako shark commercial landings, based on dealer reports, were made by pelagic longline vessels. An average of 49 pelagic longline vessels landed shortfin mako sharks from 2018 through 2020. Therefore, the average annual revenue from shortfin mako shark landings per pelagic longline vessel is approximately $1,960 per year ($96,000/49) under the current regulations. For-hire shark fishing operations by HMS Charter/Headboat permit holders as well as HMS tournament operations would also remain the same. This alternative would result in no additional economic impacts on small entities associated with these fisheries in the short- or long-term.

Alternative 2, the preferred alternative, would implement a flexible shortfin mako shark retention limit with a default limit of zero. The limit of zero would be in place unless and until changed after considering inseason trip limit adjustment criteria (§ 635.24(a)(8)) and when consistent with ICCAT retention allowances pursuant to Recommendation 21-09. This would apply to commercial vessels issued a Shark Directed or Shark Incidental LAP and to HMS Charter/Headboat permit holders. Under a retention limit of zero, HMS for-hire fishermen and commercial vessels would be required to release all shortfin mako sharks that are alive at haulback and discard all shortfin mako sharks that are dead at haulback.

In recent years, about 49,000 pounds dw (22,000 kilograms dw) of shortfin mako sharks have been landed commercially on average from 2018 through 2020, and the commercial revenues from shortfin mako sharks have averaged approximately $96,000 fishery-wide per year. Almost all of the shortfin mako shark commercial landings, based on dealer reports, were made by pelagic longline vessels. An average of 49 pelagic longline vessels landed shortfin mako sharks from 2018 through 2020. Therefore, the average loss in annual revenue from shortfin mako shark landings per pelagic longline vessel that landed shortfin mako sharks would be approximately $1,960 per year ($96,000/49). However, the overall economic impacts associated with these reductions in revenue are not expected to be substantial, as shortfin mako sharks comprise less than one percent of total HMS ex-vessel revenues on average. Additionally, the magnitude of shortfin mako landings by other commercial gear types (bottom longline and gillnet) is very small.

This alternative would have minor economic costs on small entities in those commercial fisheries compared to the no action alternative because these measures would reduce the number of shortfin mako sharks landed and sold by these fishing vessels. Shortfin mako sharks are rarely a target species, however, and generate much less revenue overall than other more valuable target species. In for-hire fisheries and tournaments, retention would be prohibited, and fishermen would only be authorized to catch and release shortfin mako sharks. A retention limit of zero for shortfin mako sharks is likely to be a disincentive to fishing by some portion of the for-hire shark fishery, particularly those individuals that would otherwise have planned to target and retain shortfin mako sharks. Charter/Headboat operators may experience some decline in demand if shortfin mako sharks may not be retained, resulting in minor adverse economic impacts. For Atlantic HMS tournaments, the 1,555 directed shortfin mako shark trips, on average, that take place in HMS tournaments would likely no longer take place, resulting in a loss of approximately $1.1 million in expenditures, out of an estimated $85.6 million in total HMS tournament expenditures by participating teams. Overall, this alternative would have minor economic costs on small entities in the short-term compared to the no action alternative.

During the fishing year, based on the inseason trip limit adjustment criteria (§ 635.24(a)(8)), and to the extent consistent with any future retention allowance that is determined by ICCAT pursuant to Recommendation 21-09, NMFS could increase the shortfin mako shark retention limit for the commercial fishery, the recreational fishery, or both, as appropriate. If the retention limit for the commercial and recreational fisheries is greater than zero, the current shortfin mako shark regulatory requirements, described under Alternative 1, would apply. This would result in no additional economic impacts on small entities associated with this fishery in the long-term compared to the no action alternative.

Alternative 3 would add shortfin mako sharks to the prohibited sharks species group to prohibit any catch or retention of shortfin mako sharks in commercial and recreational HMS fisheries. See Table 1, section D, in appendix A to 50 CFR part 635 (list of prohibited sharks), § 635.24(a)(5) (related vessel restrictions), and § 635.34(c) (criteria for adding species to, or removing species from, the prohibited shark species group). The overall economic impacts associated with reductions in revenue for the commercial and for-hire fisheries and HMS tournaments would be similar to those described under Alternative 2 and are not expected to be substantial, as shortfin mako sharks comprise less than one percent of total HMS ex-vessel revenues on average. This alternative would have minor economic costs on small entities in commercial fisheries because no shortfin mako sharks would be landed and sold by these fishing vessels under these measures. Shortfin mako sharks are rarely a target species, however, and generate less revenue overall than other more valuable target species. In for-hire fisheries and tournaments, retention would be prohibited, and fishermen would only be authorized to catch and release shortfin mako sharks. A prohibition on the retention of shortfin mako sharks is likely to be a disincentive for some portion of the for-hire shark fishery, particularly those individuals that would otherwise have planned to target and retain shortfin mako sharks. Charter/Headboat operators may experience some decline in demand, resulting in adverse economic impacts. For Atlantic HMS tournaments, the 1,555 directed shortfin mako shark trips, on average, that take place in HMS tournaments would likely no longer take place, resulting in a loss of approximately $1.1 million in expenditures, out of an estimated $85.6 million in total HMS tournament expenditures by participating teams. Overall, Alternative 3 would have minor economic costs on small entities in the short- and long-term.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a web page that also serves as small entity compliance guide (the guide) was prepared. This final rule and the guide are available on the HMS Management Division website at https://www.fisheries.noaa.gov/action/proposed-changes-atlantic-shortfin-mako-shark-retention-limits or by contacting Carrie Soltanoff at carrie.soltanoff@noaa.gov or 301-427-8503.

For the reasons set out in the preamble, 50 CFR part 635 is amended as follows:

Atlantic HMS fisheries, including BFT fisheries, are managed under the authority of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971 et seq. ) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq. ). The 2006 Consolidated Atlantic HMS Fishery Management Plan (FMP) and its amendments are implemented by regulations at 50 CFR part 635. Section 635.27 divides the U.S. BFT quota recommended by the International Commission for the Conservation of Atlantic Tunas (ICCAT) and as implemented by the United States among the various domestic fishing categories, per the allocations established in the 2006 Consolidated Atlantic HMS FMP and its amendments. NMFS is required under the Magnuson-Stevens Act to provide U.S. fishing vessels with a reasonable opportunity to harvest quotas under relevant international fishery agreements such as the ICCAT Convention, which is implemented domestically pursuant to ATCA.

Under § 635.28(a)(1), NMFS files a closure notice with the Office of the Federal Register for publication when a BFT quota (or subquota) is reached or is projected to be reached. Retaining, possessing, or landing BFT under that quota category is prohibited on and after the effective date and time of a closure notice for that category, for the remainder of the fishing year, until the opening of the subsequent quota period or until such date as specified.

The 2022 BFT fishing year, which is managed on a calendar-year basis and subject to an annual calendar-year quota, began January 1, 2022. The Angling category season opened January 1, 2022, and continues through December 31, 2022. The Angling category baseline quota is 232.4 metric tons (mt), of which 5.3 mt is allocated for the harvest of large medium and giant (trophy) BFT by vessels fishing under the Angling category quota, with 1.8 mt allocated for each of the following areas: North of 39°18′ N lat. (off Great Egg Inlet, NJ; the “northern area”); south of 39°18′ N lat. and outside the Gulf of Mexico (the “southern area”); and in the Gulf of Mexico. Trophy BFT measure 73 inches (185 cm) curved fork length or greater.

Based on landings data from the NMFS Automated Catch Reporting System, as well as average catch rates and anticipated fishing conditions, NMFS has determined that the codified Angling category northern area trophy BFT subquota of 1.8 mt has been reached and exceeded. Therefore, retaining, possessing, or landing large medium or giant ( i.e., measuring 73 inches (185 cm) curved fork length or greater) BFT north of 39°18′ N lat. by persons aboard HMS Angling and HMS Charter/Headboat permitted vessels (when fishing recreationally) must cease at 11:30 p.m. local time on June 29, 2022. This closure will remain effective through December 31, 2022. This action applies to HMS Angling and HMS Charter/Headboat permitted vessels when fishing recreationally for BFT, and is taken consistent with the regulations at § 635.28(a)(1). This action is intended to prevent overharvest of the Angling category northern area trophy BFT subquota. NMFS previously closed the 2022 trophy BFT fishery in the southern area on February 12, 2022 (87 FR 8983, February 17, 2022) and in the Gulf of Mexico area on May 17, 2022 (87 FR 30838, May 20, 2022). Therefore, with this closure of the northern area trophy BFT fishery, the Angling category trophy BFT fishery will be closed in all areas for 2022.

If needed, subsequent Angling category adjustments will be published in the Federal Register . Information regarding the Angling category fishery for Atlantic tunas, including daily retention limits for BFT measuring 27 inches (68.5 cm) to less than 73 inches (185 cm) and any further Angling category adjustments, is available at hmspermits.noaa.gov or by calling 978-281-9260. HMS Angling and HMS Charter/Headboat permit holders may catch and release (or tag and release) BFT of all sizes, subject to the requirements of the catch-and-release and tag-and-release programs at § 635.26. Anglers are also reminded that all BFT that are released must be handled in a manner that will maximize survival, and without removing the fish from the water, consistent with requirements at § 635.21(a)(1). For additional information on safe handling, see the “Careful Catch and Release” brochure available at https://www.fisheries.noaa.gov/resource/outreach-and-education/careful-catch-and-release-brochure/.

HMS Angling and Charter/Headboat permitted vessel owners are required to report the catch of all BFT retained or discarded dead, within 24 hours of the landing(s) or end of each trip, by accessing hmspermits.noaa.gov, using the HMS Catch Reporting app, or calling 888-872-8862 (Monday through Friday from 8 a.m. until 4:30 p.m.).

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act and regulations at 50 CFR part 635 and is exempt from review under Executive Order 12866.

The Assistant Administrator for NMFS finds that it is impracticable and contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action for the following reasons:

The regulations implementing the 2006 Consolidated HMS FMP and its amendments provide for inseason adjustments and fishery closures to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. This fishery is currently underway and delaying this action could result in excessive trophy BFT landings that may result in future potential quota reductions for the Angling category, depending on the magnitude of a potential Angling category overharvest. NMFS must close the northern area trophy BFT fishery before additional landings of these sizes of BFT occur. Therefore, the Assistant Administrator for NMFS finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment. For all of the above reasons, there is good cause under 5 U.S.C. 553(d) to waive the 30-day delay in effectiveness.

NMFS manages the Pacific sardine fishery in the U.S. exclusive economic zone (EEZ) off the Pacific coast (California, Oregon, and Washington) in accordance with the Coastal Pelagic Species (CPS) Fishery Management Plan (FMP). The FMP and its implementing regulations require NMFS to set annual catch levels for the Pacific sardine fishery based on the annual specification framework and control rules in the FMP. These control rules include the harvest guideline (HG) control rule, which, in conjunction with the overfishing limit (OFL) and acceptable biological catch (ABC) rules in the FMP, are used to manage harvest levels for Pacific sardine, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act (MSA), 16 U.S.C. 1801 et seq.

This final rule implements the annual catch levels, reference points, and management measures for the 2022-2023 fishing year. The final rule adopts, without changes, the catch levels and restrictions that NMFS proposed in the rule published on May 9, 2022. The proposed rule for this action included additional background on the specifications and details of how the Pacific Fishery Management Council (Council) derived its recommended specifications for Pacific sardine. Those details are not repeated here. For additional information on this action, please refer to the proposed rule (87 FR 27557).

This final rule implements an OFL of 5,506 metric tons (mt) and an ABC/annual catch limit (ACL) of 4,274 mt, based on CPS FMP control rules and a biomass estimate of Pacific sardine of 27,369 mt. This biomass estimate is from the 2022 update stock assessment, which was identified by the Council's Scientific and Statistical Committee to represent the best scientific information available for management of Pacific sardine. Per the CPS FMP, because the estimated biomass is less than 150,000 mt ( i.e., the Rebuilding target and CUTOFF in the harvest guideline control rule), the primary directed fishery is set to 0 mt, meaning there is no primary directed fishery for Pacific sardine. This is the eighth consecutive year the primary directed fishery has been closed. Because the estimated biomass is below the minimum stock size threshold (50,000 mt) the FMP requires that incidental catch of Pacific sardine in other CPS fisheries be limited to an incidental allowance of no more than 20 percent by weight. Although these management measures, triggered by the FMP, are expected to keep catch far below the ACL as they have done in recent history, this rule also implements an annual catch target (ACT) of 3,800 mt and implements management measures intended to ensure harvest opportunity throughout the year.

A summary of the 2022-2023 fishing year specifications can be found in Table 1, and management measures are summarized in the list below Table 1.

Following are the management measures for commercial sardine harvest during the 2022-2023 fishing year:

(1) If landings in the live bait fishery reach 1,800 mt of Pacific sardine, then a 1 mt per-trip limit of sardine would apply to the live bait fishery.

(2) An incidental per-landing limit of 20 percent (by weight) of Pacific sardine applies to other CPS primary directed fisheries ( e.g., Pacific mackerel).

(3) If the ACT of 3,800 mt is attained, then a 1-mt per-trip limit of Pacific sardine landings would apply to all CPS fisheries ( i.e., (1) and (2) would no longer apply).

(4) An incidental per-landing allowance of 2 mt of Pacific sardine would apply to non-CPS fisheries until the ACL is reached.

All sources of catch, including any exempted fishing permit (EFP) set-asides, the live bait fishery, and other minimal sources of harvest, such as incidental catch in CPS and non-CPS fisheries and minor directed fishing, will be accounted for against the ACT and ACL. At the April 2022 Council meeting, the Council approved 830 mt of the ACL for three EFP proposals to support stock assessments for Pacific sardine. If the effective date of this final rule is after July 1, 2022, any Pacific sardine harvested between July 1, 2022, and the effective date will count toward the 2022-2023 ACT.

The NMFS West Coast Regional Administrator will publish notification in the Federal Register to announce when catch reaches the incidental limits as well as any resulting changes to allowable incidental catch percentages. Additionally, to ensure the regulated community is informed of any closure, NMFS will make announcements through other means available, including emails to fishermen, processors, and state fishery management agencies.

On May 9, 2022, NMFS published a proposed rule for this action and solicited public comments through May 24, 2022 (87 FR 27557). NMFS received two public comments—one from the industry group California Wetfish Producers Association (Association) and one from the environmental group Oceana. The Association supported the proposed rule in its entirety. After considering the public comments, NMFS made no changes from the proposed rule. NMFS summarizes and responds to the comment from Oceana below.

Comment: Oceana supported the prohibition on directed fishing for Pacific sardine, but recommended that NMFS: use a different E (maximum sustained yield (MSY)—fishing rate) value to calculate the OFL and ABC; use survey results without the distribution factor instead of the model-based stock assessment to set limits, or incorporate additional precautionary buffers if using the assessment; set the ACL no higher than 800 mt; limit the incidental catch allowance to no more than 10 percent; and reduce allowable catch levels for the live bait fishery. In addition to those recommendations on the proposed rule, Oceana also recommended what they state are necessary reforms to various aspects of Pacific sardine management. Changes to the management framework of Pacific sardine and to the Pacific sardine harvest control rules are set in the CPS FMP and are beyond the scope of this rulemaking. These include Oceana's recommendations to: revise the E MSY formula; change the fishing season dates to January 1-December 31 to align with using survey data estimates; change the distribution factor; increase the cutoff factor; and coordinate international management of the fishery. NMFS will consider these recommendations as appropriate in future related discussions on sardine management. But because they are not within the scope of this action, they will not be addressed with a response here.

Response: As it relates to the comment that NMFS should use an E MSY of 5 percent to calculate the OFL and ABC, NMFS has determined that the OFL and ABC being implemented through this action will prevent overfishing and are supported by the best scientific information available. Oceana claimed that the E MSY fishing rate and distribution factor NMFS used “are overestimated, resulting in an OFL that does not prevent overfishing;” however, we note that overfishing has never occurred in this fishery. Additionally, the reference points proposed for the 2022-2023 fishing year were recommended by the Council's SSC and determined by them to represent the best available science and are based on the formulas in the CPS FMP, including the formula adopted for calculating E MSY. Regarding recent Council discussions related to E MSY , NMFS notes that the Council's SSC—the scientific advisory body that is responsible for recommending changes to E MSY —can (as it has done in the past) recommend changes to E MSY at any time if the best available science warrants such a revision, and it has not determined that a change is necessary at this time.

NMFS is aware of the 2019 scientific publication referenced by Oceana in their comment letter and of ongoing Council discussions related to E MSY. NMFS is committed to participating in discussions about new science and whether that science justifies a change to how E MSY is calculated for management purposes. Regarding the 2019 paper mentioned by Oceana that was authored by researchers at the SWFSC, NMFS notes that research related to the appropriate temperature index to inform E MSY is ongoing. NMFS has not yet determined whether, based on that paper, a change in how E MSY is calculated is necessary for management purposes. NMFS will continue to examine whether this new publication warrants a change in management; however, as previously stated, NMFS has determined that the reference points set through this action are based on the best scientific information available.

As it relates to the comment that NMFS base limits on acoustic trawl survey results (without the distribution factor) instead of the model-based stock assessment, this is out of the scope of this action; additionally this methodology has not been scientifically analyzed and therefore cannot be considered the best scientific information available at this time. NMFS disagrees with Oceana's alternative suggestion (in the event the model is still used instead of the survey data, per Oceana's initial suggestion) to increase the buffer between the OFL and ABC to account for uncertainty in the 2022 stock assessment update. NMFS disagrees with this because the stock assessment was endorsed by the Council's SSC as the best scientific information available for management, and NMFS determined that it represents the best available science for management as well. Oceana points to uncertainties in the stock assessment, but the ABC being implemented through this action is from the Council's SSC, which is responsible for making ABC recommendations to the Council, and which already incorporates a buffer to account for uncertainty. The buffer between OFL and ABC for this year's fishing season is appropriately smaller than the buffer between OFL and ABC for last year's fishing season because the SSC determined that this year's assessment is less uncertain than last year's assessment due to the addition of new data. NMFS also notes that, contrary to Oceana's assertions, there have been no “indications of overfishing in several previous years” that would warrant a more precautionary approach to setting the ABC. NMFS has therefore determined that it is not necessary to further reduce the ABC from the OFL to prevent overfishing.

NMFS disagrees with Oceana's recommendation that the ACL should be no higher than 800 mt. Further reductions in catch levels beyond those recommended by the Council are unnecessary at this time to rebuild the stock or for other reasons. The OFL/ABC/ACL were all calculated in alignment with the rebuilding plan. The ACL should be viewed in the context of the OFL of 5,506 mt and the ABC of 4,274 mt, which takes into account scientific uncertainty surrounding the OFL. The reference points being implemented through this action were recommended by the Council based on the control rules in the FMP and were endorsed by the Council's SSC as the best scientific information available for setting the 2022-2023 harvest specifications for Pacific sardine. In addition, the management measures adopted by the Council, including an ACT that was set even lower than the ACL (3,800 mt), are more than adequate to ensure catch does not exceed the ACL/ABC and OFL. The reference points implemented through this action should also be viewed in the context of the non-discretionary harvest restrictions already in place, pursuant to the CPS FMP, which generally restrict the fishery from catching the full ACL. These non-discretionary restrictions include the continued closure of the primary directed fishery ( i.e., the largest fishery that takes the majority of Pacific sardine catch) and restrictions on incidental harvest of Pacific sardine in other CPS fisheries (which are currently less than half of typical incidental limits). The Council considered the overfished status of Pacific sardine, as well as the uncertainty around the 2022 update assessment, and incorporated precautionary measures in their recommendations to NMFS to account for those factors. Those precautionary measures included: (1) deeming the assessment Tier 2; (2) using a P* value of 0.4; (3) reducing the ACT from the ACL; (4) reducing the EFP allowance from the requested amount; and (5) incorporating accountability measures. These accountability measures include: (1) limiting live bait landings to 1 mt per landing once 1,800 mt of sardine is attained; (2) imposing a per-trip limit of 1 mt of sardine in all CPS fisheries once the ACT is attained; and (3) implementing an incidental per-landing allowance of 2 mt in non-CPS fisheries until the ACL is reached.

As it relates to the comment that NMFS set the incidental catch allowance at 10 percent, NMFS notes that all harvest, regardless of how it is taken or at what level ( i.e. 10 percent or 20 percent), is accounted for under the OFL/ABC/ACL/ACT for this action, and these levels have been determined to prevent overfishing of Pacific sardine and support the rebuilding of the stock. Additionally, reducing the incidental catch allowance is not necessary to ensure these reference points are not exceeded, therefore NMFS does not see a justification to restrict this sector further than the low catch allowance already in place.

Lastly, with regard to reducing allowable catch levels for the live bait fishery, Oceana does not outline to what level or why restricting this sector beyond the ways this sector is already restricted is necessary. This action implements a measure providing that, if the live bait fishery attains 1,800 mt, there will be a 1-mt trip limit on the live bait fishery; this measure provides for another precautionary step to ensure the ACL is not exceeded.

Pursuant to section 304(b)(1)(A) of the MSA, the NMFS Assistant Administrator has determined that this final rule is consistent with the CPS FMP, other provisions of the MSA, and other applicable law.

There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in the date of effectiveness of these final harvest specifications for the 2022-2023 Pacific sardine fishing season. In accordance with the FMP, this rule was recommended by the Council at its meeting in April 2022. The contents of this rule are based on the best scientific information available on the population status of Pacific sardine, which became available at that April 2022 meeting. Making these final specifications effective on July 1, the first day of the fishing year, is necessary for the conservation and management of the Pacific sardine resource because last year's restrictions on harvest are not effective after June 30. The FMP requires a prohibition on primary directed fishing for Pacific sardine for the 2022-2023 fishing year because the sardine biomass has dropped below the CUTOFF. The purpose of the CUTOFF in the FMP, and for prohibiting a primary directed fishery when the biomass drops below this level, is to protect the stock when biomass is low and provide a buffer of spawning stock that is protected from fishing and can contribute to rebuilding the stock. A delay of a full 30 days in the date of effectiveness for this rule would result in the re-opening of the primary directed commercial fishery on July 1.

Delaying the effective date of this rule beyond July 1 would be contrary to the public interest because it would jeopardize the sustainability of the Pacific sardine stock. Furthermore, most affected fishermen have already been operating under a prohibition of the primary directed fishery for years, and are aware that the Council recommended that primary directed commercial fishing be prohibited again for the 2022-2023 fishing year, and are fully prepared to comply with the prohibition.

This final rule is exempt from review under Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities for the purposes of the Regulatory Flexibility Act. The factual basis for the certification was published in the proposed rule (87 FR 27557, May 9, 2022) and is not repeated here. As a result, a final regulatory flexibility analysis was not required and none was prepared.

Pursuant to Executive Order 13175, this proposed rule was developed after meaningful consultation and collaboration with the Council's tribal representative, who has agreed with the provisions that apply to tribal vessels.

This action does not contain a collection-of-information requirement for purposes of the Paperwork Reduction Act. There are no relevant Federal rules that may duplicate, overlap, or conflict with the proposed action.