I. Background

On June 1, 2020, the agencies published in the Federal Register an interagency policy statement  1 (original statement) in response to changes to GAAP as promulgated by the FASB in ASU 2016-13, Financial Instruments—Credit Losses (Topic 326): Measurement of Credit Losses on Financial Instruments and subsequent amendments issued between June 2016 and the date of issuance of the original statement (collectively, Topic 326).

In March 2022, the FASB further amended Topic 326 with the issuance of ASU 2022-02, Financial Instruments—Credit Losses (Topic 326): Troubled Debt Restructurings and Vintage Disclosures (ASU 2022-02). ASU 2022-02 eliminates the recognition and measurement accounting guidance for Troubled Debt Restructurings (TDRs) by creditors upon adoption of Topic 326.

To maintain conformance with GAAP following the issuance of ASU 2022-02, the agencies are revising the original statement to remove references to TDRs. The agencies are also correcting a citation to a regulation in footnote 4 of the original statement. No other changes are being made to the original statement. Through this notice, the agencies are publishing the revised statement.

Consistent with the original statement, the revised statement continues to describe the measurement of expected credit losses under the current expected credit losses (CECL) methodology and the accounting for impairment on available-for-sale debt securities in accordance with Topic 326; the design, documentation, and validation of expected credit loss estimation processes, including the internal controls over these processes; the maintenance of appropriate ACLs; the responsibilities of boards of directors and management; and examiner reviews of ACLs.

In accordance with the requirements of the Paperwork Reduction Act of 1995 (PRA), 2 the agencies may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number.

The revised statement does not create any new or revise any existing collections of information under the PRA. Therefore, no information collection request will be submitted to the OMB for review.

The text of the final interagency Policy Statement is as follows:

The Office of the Comptroller of the Currency (OCC), the Board of Governors of the Federal Reserve System (FRB), the Federal Deposit Insurance Corporation (FDIC), and the National Credit Union Administration (NCUA) (collectively, the agencies) are issuing this Interagency Policy Statement on Allowances for Credit Losses (hereafter, the policy statement) to promote consistency in the interpretation and application of Financial Accounting Standards Board (FASB) Accounting Standards Update 2016-13, Financial Instruments—Credit Losses (Topic 326): Measurement of Credit Losses on Financial Instruments, as well as the amendments issued since June 2016. 1 These updates are codified in Accounting Standards Codification (ASC) Topic 326, Financial Instruments—Credit Losses (FASB ASC Topic 326). FASB ASC Topic 326 applies to all banks, savings associations, credit unions, and financial institution holding companies (collectively, institutions), regardless of size, that file regulatory reports for which the reporting requirements conform to U.S. generally accepted accounting principles (GAAP). 2 This policy statement describes the measurement of expected credit losses in accordance with FASB ASC Topic 326; the design, documentation, and validation of expected credit loss estimation processes, including the internal controls over these processes; the maintenance of appropriate allowances for credit losses (ACLs); the responsibilities of boards of directors and management; and examiner reviews of ACLs.

This policy statement is effective at the time of each institution's adoption of FASB ASC Topic 326. 3 The following policy statements are no longer effective for an institution upon its adoption of FASB ASC Topic 326: the December 2006 Interagency Policy Statement on the Allowance for Loan and Lease Losses; the July 2001 Policy Statement on Allowance for Loan and Lease Losses Methodologies and Documentation for Banks and Savings Institutions; and the NCUA's May 2002 Interpretive Ruling and Policy Statement 02-3, Allowance for Loan and Lease Losses Methodologies and Documentation for Federally Insured Credit Unions (collectively, ALLL Policy Statements). After FASB ASC Topic 326 is effective for all institutions, the agencies will rescind the ALLL Policy Statements.

The principles described in this policy statement are consistent with GAAP, applicable regulatory reporting requirements, 4 safe and sound banking practices, and the agencies' codified guidelines establishing standards for safety and soundness. 5 The operational and managerial standards included in those guidelines, which address such matters as internal controls and information systems, an internal audit system, loan documentation, credit underwriting, asset quality, and earnings, should be appropriate for an institution's size and the nature, scope, and risk of its activities.

This policy statement describes the current expected credit losses (CECL) methodology for determining the ACLs applicable to loans held-for-investment, net investments in leases, and held-to-maturity debt securities accounted for at amortized cost. 6 It also describes the estimation of the ACL for an available-for-sale debt security in accordance with FASB ASC Subtopic 326-30. This policy statement does not address or supersede existing agency requirements or guidance regarding appropriate due diligence in connection with the purchase or sale of assets or determining whether assets are permissible to be purchased or held by institutions. 7

The CECL methodology described in FASB ASC Topic 326 applies to financial assets measured at amortized cost, net investments in leases, and off-balance-sheet credit exposures (collectively, financial assets) including:

• Financing receivables such as loans held-for-investment;

• Overdrawn deposit accounts ( i.e. overdrafts) that are reclassified as held-for-investment loans;

• Held-to-maturity debt securities;

• Receivables that result from revenue transactions within the scope of Topic 606 on revenue from contracts with customers and Topic 610 on other income, which applies, for example, to the sale of foreclosed real estate;

• Reinsurance recoverables that result from insurance transactions within the scope of Topic 944 on insurance;

• Receivables related to repurchase agreements and securities lending agreements within the scope of Topic 860 on transfers and servicing;

• Net investments in leases recognized by a lessor in accordance with Topic 842 on leases; and

• Off-balance-sheet credit exposures including off-balance-sheet loan commitments, standby letters of credit, financial guarantees not accounted for as insurance, and other similar instruments except for those within the scope of Topic 815 on derivatives and hedging.

The CECL methodology does not apply to the following financial assets:

• Financial assets measured at fair value through net income, including those assets for which the fair value option has been elected;

• Available-for-sale debt securities;  8

• Loans held-for-sale;

• Policy loan receivables of an insurance entity;

• Loans and receivables between entities under common control; and

• Receivables arising from operating leases.

An ACL is a valuation account that is deducted from, or added to, the amortized cost basis of financial assets to present the net amount expected to be collected over the contractual term  9 of the assets. In estimating the net amount expected to be collected, management should consider the effects of past events, current conditions, and reasonable and supportable forecasts on the collectibility of the institution's financial assets. 10 FASB ASC Topic 326 requires management to use relevant forward-looking information and expectations drawn from reasonable and supportable forecasts when estimating expected credit losses.

ACLs are evaluated as of the end of each reporting period. The methods used to determine ACLs generally should be applied consistently over time and reflect management's current expectations of credit losses. Changes to ACLs resulting from these periodic evaluations are recorded through increases or decreases to the related provisions for credit losses (PCLs). When available information confirms that specific loans, securities, other assets, or portions thereof, are uncollectible, these amounts should be promptly written off  11 against the related ACLs.

Estimating appropriate ACLs involves a high degree of management judgment and is inherently imprecise. An institution's process for determining appropriate ACLs may result in a range of estimates for expected credit losses. An institution should support and record its best estimate within the range of expected credit losses.

FASB ASC Topic 326 requires expected losses to be evaluated on a collective, or pool, basis when financial assets share similar risk characteristics. Financial assets may be segmented based on one characteristic, or a combination of characteristics.

Examples of risk characteristics relevant to this evaluation include, but are not limited to:

• Internal or external credit scores or credit ratings;

• Risk ratings or classifications;

• Financial asset type;

• Collateral type;

• Size;

• Effective interest rate;

• Term;

• Geographical location;

• Industry of the borrower; and

• Vintage.

Other risk characteristics that may be relevant for segmenting held-to-maturity debt securities include issuer, maturity, coupon rate, yield, payment frequency, source of repayment, bond payment structure, and embedded options.

FASB ASC Topic 326 does not prescribe a process for segmenting financial assets for collective evaluation. Therefore, management should exercise judgment when establishing appropriate segments or pools. Management should evaluate financial asset segmentation on an ongoing basis to determine whether the financial assets in the pool continue to share similar risk characteristics. If a financial asset ceases to share risk characteristics with other assets in its segment, it should be moved to a different segment with assets sharing similar risk characteristics if such a segment exists.

If a financial asset does not share similar risk characteristics with other assets, expected credit losses for that asset should be evaluated individually. Individually evaluated assets should not be included in a collective assessment of expected credit losses.

FASB ASC Topic 326 does not require the use of a specific loss estimation method for purposes of determining ACLs. Various methods may be used to estimate the expected collectibility of financial assets, with those methods generally applied consistently over time. The same loss estimation method does not need to be applied to all financial assets. Management is not precluded from selecting a different method when it determines the method will result in a better estimate of ACLs.

Management may use a loss-rate method, 12 probability of default/loss given default (PD/LGD) method, roll-rate method, discounted cash flow method, a method that uses aging schedules, or another reasonable method to estimate expected credit losses. The selected method(s) should be appropriate for the financial assets being evaluated, consistent with the institution's size and complexity.

FASB ASC Topic 326 requires an institution to measure estimated expected credit losses over the contractual term of its financial assets, considering expected prepayments. Renewals, extensions, and modifications are excluded from the contractual term of a financial asset for purposes of estimating the ACL unless the renewal and extension options are part of the original or modified contract and are not unconditionally cancellable by the institution. If such renewal or extension options are present, management must evaluate the likelihood of a borrower exercising those options when determining the contractual term.

Historical loss information generally provides a basis for an institution's assessment of expected credit losses. Historical loss information may be based on internal information, external information, or a combination of both. Management should consider whether the historical loss information may need to be adjusted for differences in current asset specific characteristics such as differences in underwriting standards, portfolio mix, or when historical asset terms do not reflect the contractual terms of the financial assets being evaluated as of the reporting date.

Management should then consider whether further adjustments to historical loss information are needed to reflect the extent to which current conditions and reasonable and supportable forecasts differ from the conditions that existed during the historical loss period. Adjustments to historical loss information may be quantitative or qualitative in nature and should reflect changes to relevant data (such as changes in unemployment rates, delinquency, or other factors associated with the financial assets).

When estimating expected credit losses, FASB ASC Topic 326 requires management to consider forward-looking information that is both reasonable and supportable and relevant to assessing the collectibility of cash flows. Reasonable and supportable forecasts may extend over the entire contractual term of a financial asset or a period shorter than the contractual term. FASB ASC Topic 326 does not prescribe a specific method for determining reasonable and supportable forecasts nor does it include bright lines for establishing a minimum or maximum length of time for reasonable and supportable forecast period(s). Judgment is necessary in determining an appropriate period(s) for each institution. Reasonable and supportable forecasts may vary by portfolio segment or individual forecast input. These forecasts may include data from internal sources, external sources, or a combination of both. Management is not required to search for all possible information nor incur undue cost and effort to collect data for its forecasts. However, reasonably available and relevant information should not be ignored in assessing the collectibility of cash flows. Management should evaluate the appropriateness of the reasonable and supportable forecast period(s) each reporting period, consistent with other inputs used in the estimation of expected credit losses.

Institutions may develop reasonable and supportable forecasts by using one or more economic scenarios. FASB ASC Topic 326 does not require the use of multiple economic scenarios; however, institutions are not precluded from considering multiple economic scenarios when estimating expected credit losses.

When the contractual term of a financial asset extends beyond the reasonable and supportable period, FASB ASC Topic 326 requires reverting to historical loss information, or an appropriate proxy, for those periods beyond the reasonable and supportable forecast period (often referred to as the reversion period). Management may revert to historical loss information for each individual forecast input or based on the entire estimate of loss.

FASB ASC Topic 326 does not require the application of a specific reversion technique or use of a specific reversion period. Reversion to historical loss information may be immediate, occur on a straight-line basis, or use any systematic, rational method. Management may apply different reversion techniques depending on the economic environment or the financial asset portfolio. Reversion techniques are not accounting policy elections and should be evaluated for appropriateness each reporting period, consistent with other inputs used in the estimation of expected credit losses.

FASB ASC Topic 326 does not specify the historical loss information that is used in the reversion period. This historical loss information may be based on long-term average losses or on losses that occurred during a particular historical period(s). Management may use multiple historical periods that are not sequential. Management should not adjust historical loss information for existing economic conditions or expectations of future economic conditions for periods beyond the reasonable and supportable period. However, management should consider whether the historical loss information may need to be adjusted for differences in current asset specific characteristics such as differences in underwriting standards, portfolio mix, or when historical asset terms do not reflect the contractual terms of the financial assets being evaluated as of the reporting date.

The estimation of ACLs should reflect consideration of all significant factors relevant to the expected collectibility of the institution's financial assets as of the reporting date. Management may begin the expected credit loss estimation process by determining its historical loss information or obtaining reliable and relevant historical loss proxy data for each segment of financial assets with similar risk characteristics. Historical credit losses (or even recent trends in losses) generally do not, by themselves, form a sufficient basis to determine the appropriate levels for ACLs.

Management should consider the need to qualitatively adjust expected credit loss estimates for information not already captured in the loss estimation process. These qualitative factor adjustments may increase or decrease management's estimate of expected credit losses. Adjustments should not be made for information that has already been considered and included in the loss estimation process.

Management should consider the qualitative factors that are relevant to the institution as of the reporting date, which may include, but are not limited to:

• The nature and volume of the institution's financial assets;

• The existence, growth, and effect of any concentrations of credit;

• The volume and severity of past due financial assets, the volume of nonaccrual assets, and the volume and severity of adversely classified or graded assets;  13

The Department of State's Directorate of Defense Trade Controls (DDTC) administers the ITAR (22 CFR parts 120 through 130) to regulate the export, reexport, retransfer, and temporary import of, and brokering activities related to certain items and services. The articles, services, and information subject to the jurisdiction of the Department of State under the ITAR ( e.g., “defense articles” and “defense services”) are identified on the USML at ITAR § 121.1. Items not subject to the ITAR or to the exclusive licensing jurisdiction of any other Department or Agency of the U.S. Government are subject to the Export Administration Regulations (EAR, 15 CFR parts 730 through 774, which includes the Commerce Control List (CCL) in Supplement No. 1 to part 774), administered by the Bureau of Industry and Security (BIS), U.S. Department of Commerce. This rule does not modify the list of defense articles subject to permanent import control by the Attorney General, as enumerated on the U.S. Munitions Import List at 27 CFR part 447.

The Department seeks to control on the USML those articles and services that provide a critical military or intelligence advantage. The Department undertakes these revisions pursuant to the discretionary statutory authority afforded the President in section 38(a)(1) of the AECA and delegated to the Department of State in Executive Order 13637, to control the export and temporary import of defense articles and defense services in furtherance of world peace and the security and foreign policy of the United States and to designate those items which constitute the USML. The Department, informed by consultations with its interagency partners, determined the articles removed from the USML under this rulemaking no longer warrant control pursuant to the ITAR.

With this rulemaking, the Department is removing from USML Category XI certain high-energy storage capacitors that it assesses have broad commercial application, are available internationally, and do not provide a critical military or intelligence advantage. The Department assesses that adding a 125-volt (125 V) voltage criterion for the high-energy capacitors described on the USML ensures the capacitors that remain warrant control on the USML. While adding the 125 V criterion to paragraph (c)(5), the Department is simultaneously reorganizing the paragraph to delineate each element of the control criteria more clearly and adding a note to explain those criteria.

These changes are warranted because the Department found that certain low-voltage high-energy storage capacitor technology has progressed such that many models that exceed the existing USML control criteria no longer provide a critical military or intelligence advantage. Although these lower-voltage capacitors meet the energy density and full energy life criteria, the technology for these lower-voltage capacitors is well understood, and the capacitors have been extensively integrated into commercial applications, such as Wi-Fi routers and civil aviation aircraft transponders. Further, comparable capacitors manufactured in other countries are widely available internationally without multilateral export restrictions placed on them.

The Department considered two methods of implementation for specifying this voltage criterion. First, the Department considered applying a voltage rating criterion, assessing it to be an industry-standard term used to describe a value for existing capacitors that is readily accessible to exporters and customers through the specifications typically provided by Original Equipment Manufacturers (OEMs). The Department assessed that this criterion would facilitate compliance and implementation. This approach also would be in keeping with the Department's intent to establish threshold criteria in language readily understood by practitioners. However, it is possible different OEMs determine voltage ratings using differing methodologies or underlying assumptions, which could produce significantly different ratings for equivalent products. The Department assesses this drawback could be mitigated by clearly defining the term “voltage rating” in the regulation but would require more information to do so appropriately.

Second, the Department considered identifying the voltage performance capability of the capacitors, as performance capability can be empirically tested and is potentially less prone to misinterpretation. However, it is not clear to the Department how much additional testing would be required to confirm a given capacitor model's capability or whether customers have ready access to that information to facilitate compliance.

In this interim final rule, the Department implements the 125 V criterion based on the voltage at which the capacitor is capable of operating, in order to allow for public comment on advantages or disadvantages of each approach and on potential definitions for “voltage rating” and “capable of.”

The Department further reaffirms a core concept for compliance programs:

When a commodity is described by a single criterion within a USML entry, it is imperative to evaluate the remaining criteria of the control to verify whether the commodity is described—even when the commodity was not intentionally designed to meet or exceed the control criteria.

Consistent with its ongoing USML review process, the Department is requesting public comments on the revisions described in this rulemaking. The Department encourages the public to provide comments directly related to this rule and responsive to the questions described below. To facilitate timely review and assessment, comments should be provided in a concise sentence or paragraph, followed by supporting explanatory paragraphs and examples, with each distinct comment treated separately (as opposed to multiple comments in one paragraph or section). The Department requests comments focused on the following questions:

1. Please provide specific examples of any high-energy storage capacitors that exceed the 125 V threshold but fall under a 500 V threshold that you believe do not provide a critical military advantage.

2. What implementation challenges are presented by the use of either “capable of operating” or “voltage rating” to describe the voltage threshold?

3. Is there additional guidance that would be useful in parsing “capable of operating,” as used in this rule?

a. Is it sufficiently clear in the “capable of operating” implementation that the voltage capability is for steady-state, versus transient or surge, operating conditions?

b. Is it sufficiently clear in the ‘capable of operating’ implementation that the voltage capability does not vary based on circuit design margins?

4. Could a “voltage rating” criterion be implemented more easily and consistently? If so,

a. Do you assess that a sufficient definition of “voltage rating” would be “the value, based on the capacitor's design, testing, and evaluation, that describes the maximum amount of continuous voltage that will not damage the capacitor”?

b. Is it sufficiently clear in the alternative ‘voltage rating’ implementation that the voltage rating is for steady-state, versus transient or surge, operating conditions?

c. Is it sufficiently clear in the alternative ‘voltage rating’ implementation that the voltage rating does not vary based on circuit design margins?

d. What would be the effect of adding a temperature criterion ( e.g., “measured at or below 85 °C”) and is it accurate that the voltage rating of a capacitor only declines with an increase in temperature?

e. Would a criterion such as “will not reduce the capacitor's full energy life below 10,000 discharges” address the fact that each charge and discharge cycle likely inflicts some damage on a capacitor?

5. Are these revisions unclear in any way, or can they be more concisely stated? For example, please identify any:

6. Are there other technical issues directly related to this entry which the Department should address in a future rulemaking?

Include the agency name and docket number or Regulatory Information Number (RIN) (1400-AF27) for all submissions related to this rulemaking. Relevant comments may be posted without substantive change to the DDTC website ( www.pmddtc.state.gov ). Please remove any personal information, because the Department will not edit comments. Parties who wish to comment anonymously may do so by submitting their comments via www.regulations.gov, leaving the fields that would identify the commenter blank and including no identifying information in the comment itself. Commenters are cautioned not to include proprietary, export-controlled, or other sensitive information that they are not comfortable making public in their comments. If such information would provide useful insight to the comment: (1) assemble that information in a separate document with proprietary markings; (2) include “Proprietary supplement on file with: [provide POC]” as the first line in the body of the email submission; (3) submit the public portion of the comment via email; and (4) call DDTC at (202) 663-1282 to coordinate submission of the proprietary supplement.

This rulemaking is exempt from section 553 (Rulemaking) and section 554 (Adjudications) of the Administrative Procedure Act (APA) pursuant to 5 U.S.C. 553(a)(1) as a military or foreign affairs function of the United States Government. Although the Department is of the opinion that this rule is exempt from the rulemaking provisions of the APA, the Department is publishing this rule with a 30-day provision for public comment and a delayed effective date, without prejudice to its determination that controlling the import and export of defense articles and defense services is a military or foreign affairs function.

Since the Department is of the opinion that this rule is exempt from the provisions of 5 U.S.C. 553, there is no requirement for an analysis under the Regulatory Flexibility Act.

This rulemaking does not involve a mandate that will result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector of $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

The Department assesses that this rulemaking is not a major rule under the criteria of 5 U.S.C. 804. Moving the subject commodities to the jurisdiction of the EAR will reduce regulatory restrictions and compliance costs, particularly for U.S. exporters as well as some importers who source the subject commodities from abroad. This will not increase costs or prices and should have no adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises in domestic and export markets. To the contrary, the rule is expected to reduce regulatory compliance costs in the long term and facilitate U.S. manufacturers' competitiveness with foreign manufacturers of similar commodities. The Department does not, however, expect this change to have an annual effect on the economy of $100 million or more.

This rulemaking does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this rulemaking.

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributed impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been deemed a “significant regulatory action” by the Office and Information and Regulatory Affairs under Executive Order 12866.

This rule moves the export regulation of certain capacitors from the ITAR to the EAR. This action reduces the regulatory burden on those who export, temporarily import, retransfer, reexport, or perform brokering activities involving the subject capacitors. In particular, this action averts substantial regulatory burdens that would otherwise apply to supply chains that rely on the subject capacitors and commercial items into which the subject capacitors have been integrated or incorporated. As discussed in ITAR § 120.11(c), defense articles remain subject to the ITAR after incorporation or integration into an item not described on the USML, unless otherwise provided in the ITAR. The Department assesses that continuing to subject these capacitors (which are used in a wide swath of everyday commercial items, including commercial aircraft and Wi-Fi equipment) to the ITAR is unnecessary and would have significant negative consequences for global commerce, including the grounding of civil aircraft and the disruption of supply chains.

In implementing this rule, the Department is also revising USML Category XI(c)(5) to clarify its structure and explain certain terms used therein to minimize the potential for uncertainty.

The Department assesses that the benefits of this rulemaking outweigh any costs, that modifying the USML in this manner is the most cost-effective method to achieve the Department's regulatory objectives on this matter, and that doing so will result in a net reduction of the burden on the regulated community.

The Department of State has reviewed this rulemaking in light of sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

The Department of State has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not preempt tribal law. Accordingly, the requirements of Executive Order 13175 do not apply to this rulemaking.

This rulemaking does not impose or revise any information collections subject to 44 U.S.C. Chapter 35.

Accordingly, for the reasons set forth above, Title 22, Chapter I, Subchapter M, part 121 is amended as follows:

Electronic Availability

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

OFAC is amending the Iranian Transactions and Sanctions Regulations, 31 CFR part 560 (ITSR), to replace the word “insure” with the word “ensure” in § 560.528.

OFAC is amending the Western Balkans Stabilization Regulations, 31 CFR part 588 (WBSR), to correct cross references in §§ 588.307 and 588.405. On December 21, 2022, OFAC issued an amendment to the WBSR (87 FR 78484). This amendment added a general license for activities of nongovernmental organizations to the WBSR, but because the amendment contained an error in the amendatory instructions, the general license could not be incorporated. OFAC is now amending the WBSR to redesignate a second general license currently in § 588.512 as § 588.513, and to properly add the nongovernmental organizations general license in § 588.512.

Because the amendment of the ITSR and the WBSR 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 ITSR and the WBSR 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 1505-0164. 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 parts 560 and 588 as follows:

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

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 it is impracticable. We must establish this safety zone by May 27, 2023 and lack sufficient time to provide a reasonable comment period and then consider those comments before issuing this rule.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port Pittsburgh (COTP) has determined that potential hazards associated with the boat race starting on May 27, 2023, will be a safety concern for anyone on the Monongahela River within a mile marker 89.8 and 90.8. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone.

This rule establishes a safety zone from 8 a.m. through 8 p.m. on May 27 and May 28, 2023. The safety zone will cover all navigable waters on Monongahela River, within mile marker 89.8 and 90.8. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters during a boat race.

No vessel or person is permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard (USCG) assigned to units under the operational control of the COTP. To seek permission to enter, contact the COTP or a designated representative via VHF-FM channel 13 or 16, or through Marine Safety Unit Pittsburgh at 412-221-0807. Persons and vessels permitted to enter the safety zone must comply with all lawful orders or directions issued by the COTP or designated representative. The COTP or a designated representative will inform the public of the effective period for the safety zone as well as any changes in the dates and times of enforcement through Local Notice to Mariners (LNMs), Broadcast Notices to Mariners (BNMs), and/or Marine Safety Information Bulletins (MSIBs), as appropriate.

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, and duration of the temporary safety zone. This safety zone impacts only a one-mile stretch of the Monongahela River for 12 hours a day starting May 27, 2023, at 8 a.m. until May 28, 2023, at 8 p.m. Vessel traffic will be informed about the safety zone through local notices to mariners. Moreover, the Coast Guard will issue LNMs, MSIBs, and/or BNMs via VHF-FM marine channel 13 or 16 about the zone and the rule allows vessels to seek permission from the COTP to transit the zone.

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

While some owners or operators of vessels intending to transit the 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 impacts only a one-mile stretch of the Monongahela River for 12 hours a day starting May 27, 2023, at 8 a.m. until May 28, 2023, at 8 p.m. 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 is amending 33 CFR part 100 as follows:

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

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 the Coast Guard has learned that significant shoaling has developed in the vicinity of the navigational channel, and the nature and location of the shoaling presents an imminent hazard to navigation. The safety zone must be established as soon as possible for the safety of all personnel, vessels, and the marine environment; thus, it is impracticable to publish an NPRM.

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 in order to mitigate the safety hazards associated with the shoaling in Fairport Harbor.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231), 46 U.S.C. 70051; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 00170.1, Revision No. 01.3. The Captain of the Port (COTP) Buffalo has determined that the hazards associated with shoaling in Fairport Harbor, OH are a safety concern for all marine traffic. This rule is necessary to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone until dredging can be completed in accordance with the U.S. Army Corps of Engineers' approved project depth for the federally maintained sections of the waterway.

This rule establishes a safety zone for all federally maintained waters of Fairport Harbor, OH. The duration of the safety zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while the federally maintained channel is dredged in accordance with the approved U.S. Army Corps of Engineers federal project depths. All vessels greater than 100 Gross Registered Tons shall not meet or pass another vessel while navigating within the safety zone.

The most recent U.S. Army Corps of Engineers project condition surveys and hydrological surveys can be found on their website: https://www.lrb.usace.army.mil/Library/Maps-and-Charts/ .

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, and duration of the safety zone. Moreover, the Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 regarding the safety zone, and this regulatory action allows vessel traffic to transit within and around the safety zone under the conditions outlined in this rulemaking.

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

While some owners or operators of vessels intending to transit the 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 lasting approximately 120 days, or until cancelled. This rule requires all vessels greater than 100 Gross Registered Tons shall not meet or pass another vessel while navigating within the safety zone. 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:

I. Table of Abbreviations CFR Code of Federal Regulations CUMB Cumberland River DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code CUMB Cumberland River MM Mile Marker II. Background Information and Regulatory History

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 it is impracticable. This safety zone must be established by May 4, 2023 and there is a lack of 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 the public interest because immediate action is needed to respond to the potential safety hazards associated with a jet ski race.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port (COTP) Sector Ohio Valley has determined that potential hazards associated with the large gathering of small craft vessels on to the Cumberland River (CUMB) MM 55 exists. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the event is occurring.

The COTP is establishing a safety zone from 6 a.m. May 4, 2023, to 5 p.m. on May 7, 2023. The safety zone would cover all navigable waters within two hundred fifty feet of the racecourse at any point of the event. The duration of the zone is intended to ensure the safety of vessels and persons during the event. No vessel or person would 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-day of the safety zone. The Marine Event will be within a protected cove not utilized for commercial traffic, causing minimal disruption to vessel traffic. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 22-A about the enforcement time of 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 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 lasting 96 hours that would prohibit entry within two hundred fifty feet of the event which is inside of a protected cove. Normally such actions are 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:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

On September 27, 2022, EPA proposed approval via a direct final rulemaking (87 FR 58471) of the Michigan SIP revisions submitted on March 8, 2022. During the public comment period, EPA received an adverse comment on the Michigan rule revisions to R 336.1285 “Permit to install exemptions; miscellaneous” and R 336.1291, “Permit to install exemptions; emission units with “de minimis” emissions”, which included two new exemptions from the permitting for small sources. On November 14, 2022 (87 FR 68634), EPA withdrew the direct final rule. EPA is approving the following revisions to the Michigan rule revision which did not receive adverse comment. We do not consider the comments received to be germane or relevant to EPA's proposal to approve Michigan's Part 1 and Part 2 rules as described below, and therefore not adverse to this action. EPA will respond to the comments received on R 336.1285 and R 336.1291 and take further action on that portion of the Michigan SIP revision at a later date.

EPA is approving revisions to Michigan's Part 1. Definitions, and Part 2. Air Use Approval for inclusion in the Michigan SIP. The following Michigan Air Pollution Control Rules are being added or revised: R 336.1101(q), R 336.1103(aa), R 336.1201a, R 336.1202-1203, R 336.1206-1207, R 336.1209, R 336.1214a, R 336.1219(1), R 336.1240-1241, R 336.1278.

The Part 1 definition revisions include new or revised definitions for the following, R 336.1101(q) “Aqueous based parts washer”, and R 336.1103(aa) “cold cleaner”.

The Part 2 modifications consist of wording changes made to help clarify the air use approval rules, and to update references and terminology. EPA is not approving at this time the two new exemptions from the permitting program for small sources found in R 336.1285 and R 336.1291. EPA will address the comments received on rules R 336.1285 and R 336.1291 at a later date.

EPA is removing the Michigan Air Pollution Control Rules R 336.1212 “Administratively complete applications; insignificant activities; streamlining applicable requirements; emissions reporting and fee calculations”, R 336.1216 “Modifications to renewable operating permits”, R 336.1219(2) “Amendments for change of ownership or operational control”, R 336.1220 (rescinded), and R 336.1299 (rescinded) from the Michigan SIP.

The rescinded rules have been moved to other sections in the Michigan Administrative Code where they have already been approved into the Michigan SIP and rescinded from the original Part 2 location. This action completes the transition process for these rescinded rules.

The other Part 2 rules removed from the Michigan SIP by this action do not address the requirements related to attainment and maintenance of the National Ambient Air Quality Standards (NAAQS) under section 110 of the Clean Air Act (CAA). EPA has determined that these rules were erroneously incorporated into the SIP. These rules instead address the requirements under title V of the CAA for operating permit programs. EPA fully approved Michigan's title V Renewable Operating Permit Program on November 10, 2003 (68 FR 63735), to implement its program. Since these rules do not address the requirements related to attainment and maintenance of the NAAQS under Section 110 of the CAA and have been approved as part of the title V program approval, EPA will remove them from this section of the Michigan SIP.

EPA proposed to rescind rule R 336.1220 in a February 6, 2013 (78 FR 8485), action (in addition to approval of revisions to Michigan rules in Parts 1 and 19). EPA did not receive any comments on that proposal and published a final action on December 16, 2013 (78 FR 76064).

As part of the SIP revision request, Michigan submitted a 110(l) demonstration for each of the proposed revisions to the SIP. Section 110(l) of the CAA governs the submittal of SIP revisions as part of Attachment E of its submittal. It states that each revision to an implementation plan submitted by a State under this chapter shall be adopted by such State after reasonable notice and public hearing. The Administrator shall not approve a revision of a plan if the revision would interfere with any applicable requirement concerning the attainment and reasonable further progress (as defined by 7501 of the title), or any other applicable requirement of the chapter. The 110(l) demonstration in the SIP revision request adequately addresses this requirement for each rule revision being approved in this action, and the revisions should cause minimal to no impact on the emissions of any source, will have no effect on Michigan's NAAQS attainment status, or any backsliding on achieved improvements. The revision for the removed and rescinded rules pertain to the Michigan title V renewable operating permit program which has already been approved.

EPA is approving revisions to Michigan's Part 1 and Part 2 regulations. Specifically, EPA is approving revisions to Michigan Air Pollution Control Rules R 336.1101, R 336.1103, R 336.1201a, R 336.1202, R 336.1203, R 336.1206, R 336.1207, R 336.1209, R 336.1214a, R 336.1219, R 336.1240, R 336.1241, R 336.1278, effective December 20, 2016. EPA is also removing Michigan Air Pollution Control Rules R 336.1212, R 336.1216, and R 336.1299 from the SIP.

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the Michigan Regulations described in Section I of this preamble and set forth in the amendments to 40 CFR part 52 below. EPA has made, and will continue to make, these documents generally available through www.regulations.gov and at the EPA Region 5 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 1

Also in this document, as described in Section I of this preamble and the proposed amendments to 40 CFR part 52 set forth below, EPA is proposing to remove provisions of the EPA-Approved Michigan Regulations from the Michigan SIP, which is incorporated by reference in accordance with the requirements of 1 CFR part 51.

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

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

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

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

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

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

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

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

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

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 26, 2023. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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

I. General Information A. Does this action apply to me?

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a, 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 numbers EPA-HQ-OPP-2021-0310 and EPA-HQ-OPP-2021-0529 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 June 26, 2023. 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 numbers EPA-HQ-OPP-2021-0310 and EPA-HQ-OPP-2021-0529, 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/where-send-comments-epa-dockets.

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 August 24, 2021 (86 FR 47275) (FRL-8792-02-OCSPP), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP1E8909) by IR-4, North Carolina State University, 1730 Varsity Drive, Venture IV, Suite 210, Raleigh, NC 27606. The petition requested that 40 CFR 180.411 be amended by establishing tolerances for residues of the herbicide fluazifop-P-butyl, butyl(R)-2-[4-[[5-(trifluoromethyl)-2-pyridinyl]oxy]phenoxy]propanoate, in or on berry, low growing, subgroup 13-07G at 3 parts per million (ppm); Brassica, leafy greens, subgroup 4-16B at 15 ppm; chive, dried leaves at 40 ppm; fruit, citrus, group 10-10 at 0.03 ppm; fruit, stone, group 12-12 at 0.05 ppm; leaf petiole vegetable subgroup 22B at 3 ppm; onion, green, subgroup 3-07B at 4 ppm; papaya at 0.01 ppm; and vegetable, brassica, head and stem, group 5-16 at 30 ppm. Upon the establishment of these tolerances, IR-4 requested that EPA remove the existing tolerances in 40 CFR 180.411 for residues of fluazifop-P-butyl in or on fruit, citrus, group 10 at 0.03 ppm; fruit, stone at 0.05 ppm; onion, green at 1.5 ppm; rhubarb at 0.50 ppm; and strawberry at 3.0 ppm. That document referenced a summary of the petition prepared by IR-4, the petitioner, which is available in the docket, https://www.regulations.gov in docket ID EPA-HQ-OPP-2021-0310. A comment was received on the notice of filing. EPA's response to the comment is discussed in Unit IV.C.

In the Federal Register of November 17, 2022 (87 FR 68959) (FRL-9410-07-OCSPP), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP0F8890) by Syngenta Crop Protection, LLC, P.O. Box 18300, Greensboro, NC 27419. The petition requested that 40 CFR part 180 be amended by establishing tolerances for inadvertent residues of fluazifop-P-butyl metabolite 5-(Trifluoromethyl)-2-Pyridone (TFP) in or on the raw agricultural commodities corn forage at 0.01 ppm; corn grain at 0.01 ppm; and corn stover at 0.015 ppm. That document referenced a summary of the petition prepared by Syngenta Crop Protection, LLC, the registrant, which is available in the docket, https://www.regulations.gov in docket ID EPA-HQ-OPP-2021-0529. There were no comments received in response to the notice of filing.

Based upon review of the data supporting the petition, EPA has modified the levels at which tolerances are being established for some commodities and has adjusted the commodity definition for others. The reasons for these changes are explained in Unit IV.D.

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

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

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

EPA has previously published a tolerance rulemaking for fluazifop-P-butyl in which EPA concluded, based on the available information, that there is a reasonable certainty that no harm results from aggregate exposure to fluazifop-P-butyl and established tolerances for residues of that chemical. EPA is incorporating previously published sections from this rulemaking as described further in this rulemaking, as they remain unchanged.

Toxicological profile. For a discussion of the Toxicological Profile of fluazifop-P-butyl, see Unit III.A. of the September 27, 2017, final rulemaking (82 FR 44936) (FRL-9966-67).

Toxicological points of departure/Levels of concern. For a summary of the Toxicological Points of Departure/Levels of Concern for fluazifop-P-butyl used for human risk assessment, please reference Unit III.B. of the September 27, 2017, final rulemaking. As explained in the Food Quality Protection Act (FQPA) safety factor section in this rule, the safety factor for inhalation exposure has decreased from 10X to 1X so the level of concern for short term inhalation exposures is now 100 rather than 1,000 like it was in 2017.

Exposure assessment. Much of the exposure assessment remains the same although updates have occurred to accommodate the exposures from the petitioned-for tolerances. These updates are discussed in this section; for a description of the rest of the EPA approach to and assumptions for the exposure assessment, please reference Unit III.C of the September 27, 2017, final rulemaking.

EPA's dietary exposure assessments have been updated to include the additional exposure from the proposed new uses and indirect/inadvertent residues of fluazifop-P-butyl on the commodities identified in this action and were conducted using the Dietary Exposure Evaluation Model software using the Food Commodity Intake Database (DEEM-FCID) Version 4.02, which uses the 2005-2010 food consumption data from the United States Department of Agriculture's (USDA's) National Health and Nutrition Examination Survey, What We Eat in America (NHANES/WWEIA). The acute dietary exposure assessment assumed tolerance-level residues for plant commodities, anticipated residues for livestock commodities, 100 percent crop treated (PCT) and default processing factors. The chronic dietary exposure assessment was based on mean residue levels from crop field trials, average PCT estimates for registered uses of fluazifop-P-butyl, projected PCT estimates for proposed new uses on broccoli and cauliflower, and experimentally determined processing factors where available. For both the acute and chronic exposure assessments, the residues were adjusted to account for additional metabolites of concern.

Anticipated residue and percent crop treated (PCT) information. Section 408(b)(2)(E) of FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide residues that have been measured in food. If EPA relies on such information, EPA must require, pursuant to FFDCA section 408(f)(1), that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. For the present action, EPA will issue such data call-ins as are required by FFDCA section 408(b)(2)(E) and authorized under FFDCA section 408(f)(1). Data will be required to be submitted no later than 5 years from the date of issuance of these tolerances.

Section 408(b)(2)(F) of FFDCA states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if:

• Condition a: The data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain the pesticide residue.

• Condition b: The exposure estimate does not underestimate exposure for any significant subpopulation group.

• Condition c: Data are available on pesticide use and food consumption in a particular area, and the exposure estimate does not understate exposure for the population in such area.

In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by FFDCA section 408(b)(2)(F), EPA may require registrants to submit data on PCT.

The Agency estimated the PCT for existing uses as follows:

For the acute dietary analysis, 100% crop treated was assumed for all crops. The average percent crop treated estimates were used in the chronic dietary risk assessments for the following crops that are currently registered for fluazifop-P-butyl: apricots 1%; asparagus 1%; carrots 25%; cherries 1%; cotton 1%; dry beans/peas 1%; garlic 5%; grapefruit 5%; grapes 1%; lemons 1%; onions 10%; oranges 1%; peaches 2.5%; peanuts 1%; plums/prunes 1%; potatoes 1%, soybeans 2.5%; strawberries 1%; sugar beets 1%.

In most cases, EPA uses available data from United States Department of Agriculture/National Agricultural Statistics Service (USDA/NASS), proprietary market surveys, and California Department of Pesticide Regulation (CalDPR) Pesticide Use Reporting (PUR) for the chemical/crop combination for the most recent 10 years. EPA uses an average PCT for chronic dietary risk analysis and a maximum PCT for acute dietary risk analysis. The average PCT figure for each existing use is derived by combining available public and private market survey data for that use, averaging across all observations, and rounding to the nearest 5%, except for those situations in which the average PCT is less than 1% or less than 2.5%. In those cases, the Agency would use 1% or 2.5% as the average PCT value, respectively. The maximum PCT figure is the highest observed maximum value reported within the recent 10 years of available public and private market survey data for the existing use and rounded up to the nearest multiple of 5%, except where the maximum PCT is less than 2.5%, in which case, the Agency uses 2.5% as the maximum PCT.

In addition, projected PCT was used for the proposed uses on broccoli (30% PCT) and cauliflower (45% PCT); 100 PCT was assumed for the other proposed uses. EPA assumes the percent crop treated for a new use (PCTn) is unlikely to exceed that of the PCT of the dominant pesticide ( i.e., the one with the greatest PCT) used on that crop over the three most recent years of available data, which spans from 2016—2020. Comparisons are only made among pesticides of the same pesticide types ( e.g., the dominant insecticide on the crop is selected for comparison with a new insecticide). The PCTs included in the analysis may be for the same pesticide or for different pesticides since the same or different pesticides may dominate each year. Typically, EPA uses USDA/NASS as the source for raw PCT data because it is publicly available and does not have to be calculated from available data sources. When USDA/NASS does not survey a specific use site, EPA uses other appropriate public data or private market research to calculate the PCTn.

The average PCT of the market leader(s) is appropriate for use in the chronic dietary risk assessment because it represents exposure over time. This method of estimating a PCT for a new use of a registered pesticide or a new pesticide produces a high-end estimate that is unlikely, in most cases, to be exceeded during the initial five years of actual use. The predominant factors that bear on whether the estimated PCTn could be exceeded are (1) the extent of pest pressure on the crops in question; (2) the pest spectrum of the new pesticide in comparison with the market; and (3) resistance concerns with the market leaders. EPA has examined the relevant data and concludes that it is unlikely that the actual PCT with fluazifop-P-butyl on broccoli and cauliflower will exceed the PCTn within the next 5 years.

The Agency believes that the three conditions discussed in this section have been met. With respect to Condition a, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. The Agency is reasonably certain that the percentage of the food treated is not likely to be an underestimation. As to Conditions b and c, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available reliable information on the regional consumption of food to which fluazifop-P-butyl may be applied in a particular area.

Dietary exposure from drinking water. The recommended estimated drinking water concentrations in the September 27, 2017, final rulemaking remain valid and are considered protective of potential drinking water residue levels anticipated from the proposed new uses.

Non-occupational exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure ( e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

There are no new proposed residential uses. Fluazifop-P-butyl is currently registered for use on lawns/turf (including home lawns and golf courses) and ornamentals in residential settings that could result in residential exposures. For these currently registered uses of fluazifop-P-butyl, there are no residential (handler and post-application) risk estimates of concern. The residential exposure scenarios recommended for aggregate risk assessment of fluazifop-P-butyl are dermal and inhalation handler exposure from applications to gardens/trees using a backpack sprayer for adults and combined dermal plus hand-to-mouth post-application exposure from high-contact activities on treated turf for children 1 to less than 2 years old.

Cumulative effects from substances with a common mechanism of toxicity. 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.” Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to fluazifop-P-butyl and any other substances, and fluazifop-P-butyl does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that fluazifop-P-butyl has a common mechanism of toxicity with other substances.

Safety factor for infants and children. Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) 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 on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the Food Quality Protection Act Safety Factor (FQPA SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

Prenatal and postnatal sensitivity. Increased quantitative sensitivity of the fetus was observed in the rat developmental studies in which no maternal toxicity was observed. Developmental toxicity in the rat was generally related to incomplete and/or delayed ossification. At higher doses, decreased fetal body weight and an increased incidence of diaphragmatic hernia were observed. In the rabbit, maternal and developmental toxicity were observed at the same dose. Maternal toxicity included abortions, weight loss, and death, while fetal toxicity included abortions, skeletal effects, and fetuses that were small and/or had cloudy eyes. In the rat reproduction and fertility study, maternal toxicity (increased liver weight, bile duct hyperplasia, and geriatric nephropathy) and offspring toxicity (decreased pup viability, decreased pup body weight, and hydronephrosis) were observed at the same dose level, and decreased female fertility was observed at the highest dose.

Conclusion. The FQPA Safety Factor is being retained at 10X for the acute dietary assessment, as an uncertainty factor for lowest observed adverse effect level (LOAEL) to no observed adverse effect level (NOAEL) extrapolation (UF L ) due to lack of a NOAEL in the acute neurotoxicity study from which the risk assessment endpoint was chosen. For the remaining applicable exposure scenarios, EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X. That decision is based on the following findings:

• The toxicity database is adequate for characterizing pre- and postnatal risk for infants and children. The database includes five rat developmental toxicity studies, two rabbit developmental toxicity studies, a rat reproduction study, acute and subchronic neurotoxicity studies, a delayed neurotoxicity study, and an immunotoxicity study. EPA previously retained the 10X FQPA SF when assessing short-term inhalation exposures due to a lack of a subchronic inhalation study; however, EPA has determined that the subchronic inhalation study is no longer necessary to assess risk to infants and children because of the low potential for volatilization, the low acute inhalation toxicity of fluazifop, the fact that the respiratory system is not a target organ, and the fact that the use of the oral point of departure (POD) results in margins of exposure (MOEs) greater than 1,000 for all residential handler scenarios. Thus, the available data is sufficient to ensure that the 1X will be protective.

• The endpoints selected are protective of any potential neurotoxic effects.

• There was no indication of increased fetal or offspring susceptibility compared to maternal toxicity in the rabbit developmental or rat reproduction studies. Quantitative susceptibility of the fetus was noted in the rat developmental studies. However, the selected PODs are protective for these effects. Therefore, the degree of concern is low.

• There is no residual uncertainty in the exposure database for fluazifop-P-butyl with respect to dietary (food and water) and residential (turf and ornamental use) exposure. The dietary food exposure assessments include assumptions that result in high-end estimates of dietary food exposure. Also included in the assessments are modeled drinking water estimates that are designed to be protective of the highest potential residue levels in drinking water from among a range of exposure scenarios. In addition, the residential exposure assessment was conducted based on the conservative assumptions for assessing post-application exposure of children found in the Residential Standard Operating Procedures and chemical-specific data such that residential exposure and risk will not be underestimated.

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

Acute dietary risks are below the Agency's level of concern of 100% of the aPAD; they are 38% of the aPAD for children 1 to 2 years old, the group with the highest exposure. Chronic dietary risks are below the Agency's level of concern of 100% of the cPAD; they are 66% of the cPAD for children 1 to 2 years old, the most highly exposed group. Fluazifop-P-butyl is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to fluazifop-P-butyl. The short-term aggregate MOE for adults is 200 and for children 1 to <2 years old is 480. These are greater than the level of concern of 100 and are not of concern. All residential exposures are anticipated to be short-term in duration; thus, an intermediate-term aggregate risk assessment is not required.

Fluazifop-P-butyl is classified as “Not Likely to be Carcinogenic to Humans”; therefore, EPA does not expect fluazifop-P-butyl exposures to pose an aggregate cancer risk.

Therefore, based on the risk assessments and information described above, EPA concludes there is a reasonable certainty that no harm will result to the general population, or to infants and children, from aggregate exposure to fluazifop-P-butyl residues. More detailed information on this action can be found in the document “Fluazifop-P-butyl. Human Health Risk Assessment for Proposed Uses and/or Tolerances on Brassica, leafy greens (subgroup 4-16B), Vegetable, Brassica, head and stem (group 5-16), Leaf petiole vegetable (subgroup 22B), Chive, dried leaves, and Papaya; Crop group expansions to Onion, green, subgroup 3-07B and Berry, low growing, subgroup 13-07G; Crop group conversions to Fruit, citrus, group 10-10 and Fruit, stone, group 12-12; and Rotational Field Corn” in docket ID EPA-HQ-OPP-2021-0310 and EPA-HQ-OPP-2021-0529.

Adequate enforcement methodology (High Performance Liquid Chromatography/Ultra-Violet Spectrometry (HPLC/UV)) is available to enforce the tolerance expression for crops. In addition, method GRM044.09A, a liquid chromatography and tandem mass spectroscopy (LC/MS/MS) method, is available for the enforcement of 5-(Trifluoromethyl)-2-Pyridone (TFP) residues in/on rotational crops.

The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: residuemethods@epa.gov.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The tolerances for fruit, citrus, group 10-10 and fruit, stone, group 12-12 are being harmonized with the respective Codex MRLs at 0.01 ppm. No Codex MRLs have been established for residues of fluazifop-P-butyl in or on the other commodities in this rulemaking.

One comment was received on the notice of filing, which opposed EPA establishing the requested tolerances and objected to the use of pesticides on crops. Although the Agency recognizes that some individuals believe that pesticides should be banned on agricultural crops, the existing legal framework provided by section 408 of the FFDCA authorizes EPA to establish tolerances when it determines that the tolerances are safe. Upon consideration of the validity, completeness, and reliability of the available data as well as other factors the FFDCA requires EPA to consider, EPA has determined that the fluazifop-P-butyl tolerances are safe. The commenter has provided no information indicating that a safety determination cannot be supported.

The tolerance levels for fruit, citrus, group 10-10 and fruit, stone, group 12-12 are being set at the method limit of quantitation (LOQ) of the analytical method, 0.01 ppm, to harmonize with the Codex MRLs for these crop groups. The Codex MRL for citrus and stone fruit is established at 0.01 ppm, reflecting the LOQ of the enforcement method and no detects in the field trial data. The established U.S. tolerances of 0.03 ppm for fruit, citrus, group 10 and 0.05 ppm for fruit, stone reflect the highest LOQ reported in the respective field trials. As sprays are directed to weeds at the base of the trees or vines, residue translocation into tree/vine fruit is not expected, and suitably sensitive analytical enforcement methods are available. Therefore, a tolerance of 0.01 ppm for groups 10-10 and 12-12 is not expected to lead to violative residues.

IR-4 requested a tolerance of 4 ppm for onion, green, subgroup 3-07B based partly on the established tolerance of 1.5 ppm for onion, green and field trial residue data on chives, fresh leaves that supports a tolerance of 4 ppm. Because green onion is the representative commodity for onion, green, subgroup 3-07B, EPA is establishing the tolerance for subgroup 3-07B at 1.5 ppm and is establishing a tolerance for chives, fresh leaves at 4 ppm based on the chives field trial residue data. In addition, EPA corrected the commodity definitions for the field corn commodities to reflect standard Agency terminology.

In this rule, EPA is establishing tolerances for fluazifop-P-butyl residues in or on fruit, citrus, group 10-10 and fruit, stone, group 12-12 at 0.01 ppm that are lower than the current tolerances of 0.03 ppm for fruit, citrus, group 10 and 0.05 ppm for fruit, stone. For the reasons explained in Unit IV.D, the Agency believes these revised, lower tolerances are appropriate based on available residue data and analytical methods.

In accordance with the World Trade Organization's (WTO) Sanitary and Phytosanitary Measures (SPS) Agreement, EPA intends to notify the WTO of the changes to these tolerances in order to satisfy its obligations under the Agreement. In addition, the SPS Agreement requires that Members provide a “reasonable interval” between the publication of a regulation subject to the Agreement and its entry into force to allow time for producers in exporting Member countries to adapt to the new requirement. Accordingly, EPA is retaining the existing tolerances for citrus group 10 and stone fruit by establishing an expiration date for these at the existing tolerance levels of 0.03 ppm and 0.05 ppm, respectively, to allow these tolerances to remain in effect for a period of 6 months after the effective date of this final rule. After the 6-month period expires, the allowable residues on members of the citrus fruit group 10-10 and the stone fruit group 12-12 must conform to the new lower tolerance level of 0.01 ppm. This reduction in tolerance level is not discriminatory; the same food safety standard contained in the FFDCA applies equally to domestically produced and imported foods. The new tolerance levels are supported by available residue data.

Therefore, tolerances are established for residues of fluazifop-P-butyl in or on berry, low growing, subgroup 13-07G at 3 ppm; Brassica, leafy greens, subgroup 4-16B at 15 ppm; chives, dried leaves at 40 ppm; chives, fresh leaves at 4 ppm; fruit, citrus, group 10-10 at 0.01 ppm; fruit, stone, group 12-12 at 0.01 ppm; leaf petiole vegetable subgroup 22B at 3 ppm; onion, green, subgroup 3-07B at 1.5 ppm; papaya at 0.01 ppm; and vegetable, Brassica, head and stem, group 5-16 at 30 ppm. The established tolerances for fruit, citrus, group 10 at 0.03 ppm and fruit, stone at 0.05 ppm are designated to expire 6 months from the publication of this document. EPA is removing the established tolerances for onion, green at 1.5 ppm; rhubarb at 0.50 ppm; and strawberry at 3.0 ppm as unnecessary upon the establishment of the new tolerances. In addition, EPA is revising the residue definition for fluazifop-P-butyl in both 40 CFR 180.411(a) and (c) to be consistent with Agency practice and to read as follows:

“Tolerances are established for residues of the herbicide fluazifop-P-butyl, butyl (2 R )-2-[4-[[5-(trifluoromethyl)-2-pyridinyl]oxy]phenoxy]propanoate, including its metabolites and degradates, in or on the commodities listed below. Compliance with the tolerance levels specified below is to be determined by measuring only those fluazifop-P-butyl residues convertible to fluazifop, 2-[4-[[5-(trifluoromethyl)-2-pyridinyl]oxy]phenoxy]propanoic acid, expressed as fluazifop, in or on the commodity”.

Additionally, tolerances are established for indirect or inadvertent residues of the fluazifop-P-butyl metabolite, 5-trifluoromethyl-2-pyridinone (TFP) in or on corn, field, forage at 0.01 ppm; corn, field, grain at 0.01 ppm; and corn, field, stover at 0.015 ppm.

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

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

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

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

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

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

I. Background

This final rule amends the Federal Management Regulation (FMR) to update current policy and remove outdated and unnecessary information as proposed with changes published on February 18, 2022 at 87 FR 9303. These changes, made as a result of public comments, are detailed in section II.B. of this notice. In 2018, the Government Accountability Office (GAO) Report 19-33, “GSA and VA Have Opportunities to Improve the Exchange/Sale Process”, identified confusion among some agencies on the use of the exchange/sale authority which could be alleviated by, among other actions, revising FMR Part 102-39.

Personal property includes a wide variety of Government items such as computers, office equipment, furniture, and vehicles, as well as more specialized items specific to agencies, such as medical equipment for the U.S. Department of Veterans Affairs (VA) and medical helicopters for the U.S. Army. The Federal Government owns and manages more than a trillion dollars of personal property. In Fiscal Year (FY) 2021, Federal agencies reported approximately $1.9 trillion in capitalized personal property assets under their control. Over time, agencies' personal property may no longer adequately perform the task for which it was acquired. Title 40, United States Code (U.S.C.), section 503 authorizes agencies to exchange (trade-in) or sell such property still needed to meet mission needs and apply the exchange allowance or sale proceeds to acquire similar replacement property.

Such transactions are known as personal property “exchange/sale” transactions. These transactions facilitate the replacement of personal property by allowing agencies to offset the cost of new, similar property, resulting in savings to agency funds. Without this authority, agencies would have to expend the full purchase price of new personal property from appropriations, while depositing the proceeds from the disposition of worn property in the U.S. Treasury. Because exchange/sale transactions provide agencies with opportunities to save costs, it is important that agencies using this authority establish policies, processes, and procedures with effective controls, in order to ensure that they meet applicable requirements and are good stewards of Government resources.

GSA's regulations at 41 Code of Federal Regulations (CFR) part 102-39 describe the terms, conditions, and reporting requirements for personal property exchanged or sold under this authority. The personal property exchange/sale authority allows agencies to replace property that is not excess or surplus, i.e., the property is still needed to meet the agency's continuing mission. In addition, agencies must meet the following requirements to use the exchange/sale authority:

• The property exchanged or sold is similar to the property acquired.

• The personal property exchanged or sold was not acquired for the principal purpose of later exchanging it or selling it using the authority. For example, an agency cannot purchase a more costly piece of equipment than necessary to meet mission needs for the sole reason that it will deliver a higher value when sold using this exchange/sale authority.

• Exchange allowances and sales proceeds can only be put toward the purchase of similar replacement property and cannot be used for services. In other words, an agency can use proceeds from the sale of a vehicle to purchase a new vehicle, but it cannot use proceeds to hire a mechanic to repair an existing vehicle.

• Exchange allowances and sales proceeds are available during the same fiscal year (FY) the property was exchanged or sold and the following FY. This means that for an item sold in FY 2023, an agency has the rest of FY 2023, as well as FY 2024 to purchase a replacement item. If agencies do not spend these funds by the end of the next FY, monies are to be deposited in the U.S. Treasury as miscellaneous receipts, except as otherwise authorized by law. Such legal authority may, for example, take the form of an authorized revolving fund where the rules of the program allow use of funds beyond the restrictions of the FMR.

• Agencies are prohibited from using the authority to replace certain types of property as detailed in FMR §  102-39.60 (weapons, nuclear ordinances, etc.).

Agencies may choose between two transaction methods to replace property, the exchange (trade-in) method or the sale method, but must determine which method provides the greatest return to the Government, including factoring in administrative and overhead expenses. A typical exchange occurs when the original manufacturer delivers a replacement item to the agency and removes the item being replaced. The manufacturer applies a trade-in credit (an allowance) for the purchase of the replacement item. If the sale method is used, the agency receives the sale proceeds for the sale of the item and applies those proceeds to the purchase of the replacement personal property.

If contemplating an exchange/sale, agencies are guided to follow a process similar to the disposal process for excess property by making it available to other Federal agencies and state agencies by posting it to GSAXcess at https://gsaxcess.gov/. This is GSA's website for reporting, searching, and selecting property. This process allows other Federal agencies or state agencies to obtain the property for the price required by the reporting agency to help fund the acquisition of replacement property under the exchange/sale authority.

Agencies are required to submit a summary report to GSA through the GSA Personal Property Reporting Tool (PPRT), https://www.property.reporting.gov, at the end of each FY on the type, the quantity, the exchange allowances and/or sale proceeds, as applicable, and the original acquisition cost of items for both exchange and sale transactions. Agencies with no transactions during a FY must submit a negative report. Ultimately, agencies decide whether to use the exchange/sale authority to replace personal property in their inventories.

The definition for “similar” in FMR § 102-39.20 is revised to include items designed or constructed for the same general purpose. A Note is also added to clarify that only one of the criteria in this definition needs to be met for the property to be considered “similar” for an exchange/sale transaction.

FMR § 102-39.25 is revised to allow deviations to the exchange/sale provisions except for those mandated by statute or otherwise described in the part, including FMR § 102-39.80, which details the accounting requirements for exchange allowances and sales proceeds.

FMR § 102-39.40 is revised to clarify the differences between the use of the exchange/sale authority and the disposal process for excess/surplus personal property. The primary difference is that personal property disposal under the excess/surplus process does not allow for the use of proceeds or allowances (if any), in acquiring replacement similar assets. Exchange/sale property is replacement property that is non-excess and nonsurplus, meaning the agency has a continuing need for the property, but the specific item(s) are no longer suitable to the need and must be replaced, and therefore are not reported to GSA as excess or surplus for transfer or donation purposes.

The following Federal Supply Classification (FSC) Groups are removed from the “prohibited list” at FMR § 102-39.60:

• FSC Group 42: Firefighting, rescue, and safety equipment;

• FSC Group 51: Hand tools; and

• FSC Group 54: Prefabricated structure and scaffolding (FSC 5410 Prefabricated and Portable Buildings, FSC 5411 Rigid Wall Shelters, and FSC 5419 Collective Modular Support System only).

The restrictions remaining in FMR § 102-39.60 involve assets which are inherently dangerous or could pose a significant public health or safety concern, comprising assets in the following FSC Groups of personal property:

• 10 Weapons.

• 11 Nuclear ordnance.

• 44 Furnace, Steam Plant, and Drying Equipment; and Nuclear Reactors (FSC Class 4470, Nuclear Reactors only);

• FSC Group 84: Clothing, individual equipment, and insignia; and

• 68 Chemical and chemical products.

This change also removes “except medicinal chemicals” from FMR § 102-39.60 as they are categorized under FSG 65, not FSG 68.

FMR § 102-39.65 is revised to clarify that an exchange or sale under this part may occur after the acquisition of the replacement property. For example, if a Magnetic Resonance Imaging (MRI) machine is needed for use daily, the replacement machine may be acquired and installed before the existing machine is removed and exchanged or sold. If the existing machine is sold, in accordance with agency policy, the funds may be returned to the appropriation used to acquire the replacement machine. If the existing machine is exchanged, in accordance with agency policy, the agency agreement with the entity providing the replacement must document the responsibilities of both parties to execute this transaction.

FMR § 102-39.80 is revised to add language that no deviations will be granted for this section.

FMR § 102-39.85 is revised to update the reporting policy and process to reflect the use of a new online reporting tool.

FMR § 102-39.90 is added in accordance with the recommendations of GAO report 19-33 to provide additional guidance to Federal agencies regarding the publication of GSA Bulletins, including Bulletin B-48, Guidance on Exchange/Sale Financial Accounting for Personal Property, and updates to GSA's exchange/sale website.

According to GSA's annual summary data, 27 agencies reported using the exchange/sale authority and received a total of about $2.8 billion in exchange allowances or sale proceeds from fiscal year 2016 through fiscal year 2020. While many agencies used the authority, a few agencies, particularly GSA, together accounted for about 88 percent of all allowances and proceeds. Specifically, 5 of 27 agencies reported nearly all exchange allowances and sale proceeds. GSA accounted for about $1.5 billion of about $2.8 billion (or about 55 percent) of reported allowances and proceeds across the Federal Government. Four other agencies—the Departments of Homeland Security, Agriculture, Defense, and the Interior—accounted for about $899 million (or about 32 percent) of the total. The other 22 agencies using the authority reported about $340 million (or about 12 percent) in exchange allowances or sales proceeds over the 5-year period. Finally, agencies reported using the sale method more than the exchange method. Sales by agencies accounted for about $2.5 billion (or about 91 percent), while use of the exchange method accounted for about $247 million (or about 9 percent) of total transactions reported, primarily due to GSA's reporting more use of the sale method over the exchange method.

While some agencies reported hundreds of millions of dollars in exchange allowances and sale proceeds, the data show that 8 Federal agencies—including the Department of Labor and the Office of Personnel Management—reported relatively few transactions, which totaled less than $200,000 in exchange allowances and sales proceeds.

By using the exchange/sale authority, agencies have an opportunity to be good stewards of government property by efficiently replacing needed property, including high-value items, that serves critical and continuing requirements to meet agency missions. GSA expects these amendments to increase agency flexibility and understanding of this program. GSA believes these amendments will help agencies take better advantage and increase the use of this authority, thereby becoming more effective stewards of government property and replenishing property more efficiently.

The proposed rule was published in the Federal Register on February 18, 2022 (87 FR 9303). Comments were received from six respondents, some of which included multiple questions, comments, or concerns. Of the comments received, there were five topics germane to and within the scope of the final rule. An analysis of these public comments follows:

Comment: Five respondents expressed concerns about the proposed revision to one of the criteria of the definition of “similar” in FMR § 102-39.20 to require that replacement property fall within a defined Federal Supply Classification (FSC), instead of the current, broader FSC Group. In particular, many objected that the revision would negatively impact agency missions and place extensive administrative and financial burden on their aviation, vehicle, and maritime programs.

Response: Agree. Revising the definition of “similar” to more narrowly tailor one of the criteria of “similar” to require that replacement property fall within a defined 4-digit Federal Supply Classification is unduly restrictive. The proposed revision to FMR § 102-39.20(2) was removed and is not included in the final rule.

Comment: In addition to the concern addressed directly above, one respondent suggested also adding “capability” to the definition of “similar” in FMR § 102-39.20(4).

Response: Disagree. GSA informed the commenting agency that the proposed revision to FMR § 102-39.20(2) was removed from the final rule. The commenting agency still recommended adding capability to FMR § 102-39.20(4), but does not object to leaving FMR § 102-39.20(4) as is. As a result, GSA chose to maintain the language of the proposed rule. Additionally, an item only needs to meet one of the four criteria of the definition of “similar.”

Comment: One respondent opposed prohibiting deviations to FMR § 102-39.80, which states exchange allowances or proceeds of sale will be available during the fiscal year in which the property was exchanged or sold and for one fiscal year thereafter for the purchase of replacement property.

Response: Disagree. GSA does not have the authority to alter an agency's applicable fiscal law constraints as determined by the GAO, and therefore, cannot extend the availability of funds. Please refer to the GAO, Principles of Federal Appropriations Law, 3rd ed., 2008 rev., ch. 12, sec. A.4, GAO-08-978SP (Washington, DC: Sept. 2008). The regulation does, however, recognize that agencies may be allowed to retain allowances or proceeds “as authorized by law.” GSA accordingly recommends that agencies consult their respective Offices of Chief Financial Officer and Offices of the General Counsel, as well as their Office of Management and Budget Resource Management Officers, as necessary, on the use and availability of these funds.

Comment: One respondent suggested that GSA should eliminate the proposed revision to FMR § 102-39.60, which would remove the following FSC Groups from the prohibited list: FSC Groups 42, Firefighting, rescue, and safety equipment; 51, Hand tools; and 54, Prefabricated structure and scaffolding (FSC 5410 Prefabricated and Portable Buildings, FSC 5411 Rigid Wall Shelters, and FSC 5419 Collective Modular Support System only).

Response: Disagree. The removal of the aforementioned FSC Groups will allow agencies to recoup funds for vital programs to support their agency missions. The remaining restrictions on the prohibited list involve assets which are inherently dangerous or pose a significant public health or safety concern.

Comment: One respondent suggested that GSA should add additional reporting requirements to FMR § 102-39.85. Specifically, the respondent suggested agencies should be required to include the four-digit FSC and the item nomenclature as part of the annual exchange/sale report.

Response: Disagree. As explained above under paragraph A of this section, the proposed revisions to FMR § 102-39.20(2) were removed and are not included in the final rule; therefore, collecting data at the 4-digit FSC Group level is not warranted.

There is no expected cost to the public from this rule, as this rule is largely administrative. The changes will clarify the exchange/sale provisions and improve the application of this important authority across Federal agencies.

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Office of Information and Regulatory Affairs (OIRA) has determined that this is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993.

OIRA has determined that this rule is not a “major rule” as defined by 5 U.S.C. 804(2). Additionally, this rule is excepted from Congressional Review Act reporting requirements prescribed under 5 U.S.C. 801 since it relates to agency management or personnel under 5 U.S.C. 804(3).

This final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because it applies to agency management or personnel. Therefore, an Initial Regulatory Flexibility Analysis has not been performed.

The Paperwork Reduction Act does not apply because the changes to the FMR do not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public that require the approval of the Office of Management and Budget (OMB) under 44 U.S.C. 3501, et seq. Reporting requirements are only addressed to Federal agencies regarding their Federal personal property transactions.

For the reasons set forth in the preamble, GSA amends 41 CFR part 102-39 as set forth below:

This final rule amends the DFARS to make needed editorial changes to 48 CFR part 212. Section 212.301(f)(vii) is amended to list the clauses in numerical order. Sections 212.503 and 212.504 are revised to list the statutory entries in numerical and alphabetical order, and add the descriptive term “(prohibits mandatory arbitration)” at the redesignated section 212.503 paragraph (vii) and section 212.504 paragraph (xiv). A typographical error is corrected at section 228.371.

Therefore, 48 CFR parts 212 and 228 are amended as follows:

Executive Summary

Why we need to publish a rule. Under the Act, a species warrants listing if it meets the definition of an endangered species (in danger of extinction throughout all or a significant portion of its range) or a threatened species (likely to become endangered within the foreseeable future throughout all or a significant portion of its range). If we determine that a species warrants listing, we must list the species promptly and designate the species' critical habitat to the maximum extent prudent and determinable. We have determined that the Big Creek crayfish and the St. Francis River crayfish both meet the definition of threatened species; therefore, we are listing them as such and finalizing designations of critical habitat for both species. Both listing a species as an endangered or threatened species and designating critical habitat can be completed only by issuing a rule through the Administrative Procedure Act rulemaking process.

What this document does. This rule lists the Big Creek crayfish ( Faxonius peruncus ) and the St. Francis River crayfish ( Faxonius quadruncus ) as threatened species and designates critical habitat for both species. We are designating approximately 1,069 river miles (1,720 river kilometers) for the Big Creek crayfish and 1,043 river miles (1,679 river kilometers) for the St. Francis River crayfish in Iron, Madison, St. Francois, Washington, and Wayne Counties, Missouri. We are also finalizing a rule under the authority of section 4(d) of the Act that provides measures that are necessary and advisable to provide for the conservation of these species.

The basis for our action. Under the Act, we may determine that a species is an endangered or threatened species based on any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We have determined that displacement (Factor E) by the woodland crayfish ( Faxonius hylas ) is the primary threat to both the Big Creek crayfish and the St. Francis River crayfish. However, degraded water quality (Factor A) from heavy metal mining activities in the watershed is impacting the species and may act synergistically with the spread of the nonnative woodland crayfish and subsequent displacement of the Big Creek crayfish and St. Francis River crayfish. The existing regulatory mechanisms are not adequately addressing these threats such that the species do not warrant listing (Factor D).

Section 4(a)(3) of the Act requires the Secretary of the Interior (Secretary) to designate critical habitat concurrent with listing to the maximum extent prudent and determinable. Section 3(5)(A) of the Act defines critical habitat as (i) the specific areas within the geographical area occupied by the species, at the time it is listed, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protections; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination by the Secretary that such areas are essential for the conservation of the species. Section 4(b)(2) of the Act states that the Secretary must make the designation on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impacts of specifying any particular area as critical habitat.

On September 17, 2020, we published in the Federal Register (85 FR 58192) a proposed rule to list the Big Creek crayfish and the St. Francis River crayfish as threatened species under the Act, to adopt a species-specific rule issued under section 4(d) of the Act (“4(d) rule”) that provides for the protection of the Big Creek crayfish and the St. Francis River crayfish, and to designate critical habitat for both species under the Act. Please refer to that proposed rule for a detailed description of previous Federal actions concerning this species.

During the public comment period for the September 17, 2020, proposed rule, we received a request for a public hearing. On April 27, 2021, we published a document (86 FR 22127) reopening the September 17, 2020, proposed rule's comment period for an additional 30 days and announcing a public informational meeting and public hearing on the proposed rule. We held the virtual public informational meeting followed by a public hearing on May 13, 2021.

The final rule incorporates changes to our September 17, 2020, proposed rule (85 FR 58192) and our species status assessment report based on the comments we received, as discussed below under Summary of Comments and Recommendations. We have also revised our significant portion of the range analysis.

Based on information we received in comments and our further consideration, in this rule, we refine the 4(d) rule for these species to more clearly define take prohibitions and to accurately regulate only those activities that are necessary and advisable for the protection of the Big Creek crayfish and the St. Francis River crayfish (see Provisions of the 4(d) Rule, below). The Missouri Department of Conservation (MDC) informed us that adopting two of the exceptions to the prohibitions in the proposed 4(d) rule (the exceptions to the incidental take prohibitions for a person capturing crayfish for educational and observation purposes, and for a person capturing and possessing up to 25 of each species for use as bait) would conflict with the Wildlife Code of Missouri (Missouri Code). Under the Missouri Code, any species added to the Federal List of Endangered and Threatened Wildlife is also added to Missouri's State list of endangered species. Because the Missouri Code also prohibits the purposeful take of any species listed by the State as endangered, allowing capture of the crayfishes for educational and observation purposes and for use as bait would be in direct conflict with the Missouri Code and hinder the MDC's ability to conserve the species. The MDC also expressed concerns that these two exceptions would hinder the enforcement of the prohibition on activities that may facilitate the introduction or spread of the invasive woodland crayfish. After reviewing the MDC's comment and further coordinating with the State of Missouri, we conclude that adopting those two exceptions to the prohibitions in the 4(d) rule would undermine the State's ability to provide conservation for the species, and we do not include them in this final rule.

In this rule, we also expand the exception to the prohibitions in the proposed 4(d) rule concerning incidental take caused by restoration activities or other activities that will result in an overall benefit to one or both of the species. In this exception, we now include the additional restoration activity of replacing in-stream low water crossings that obstruct movement of aquatic organisms with crossings that facilitate the movement of species and materials. Replacing these crossings is expected to result in an overall benefit to one or both species and including it as an exception is an additional activity that we would expect to be beneficial to the conservation of the species. We removed mention of specific Federal agencies that we may consult with on these activities. We removed the list of Federal agencies to reduce confusion, as we would consult whenever a Federal nexus exists, not only with the Federal agencies we specifically named in the proposed 4(d) rule. We also added “surface and groundwater withdrawals” to the list of prohibited activities that could impact the hydrological flows such that the species' reproduction or survival will be impacted, in an effort to provide a more detailed list of such activities.

Lastly, in this critical habitat designation, we do not include “[s]paces under rocks or shallow burrows in gravel that provide refugia” as a physical or biological feature. That physical and biological feature, which was included in the proposed designation, is redundant with the following physical or biological feature that remains in this designation: “Adequately low stream embeddedness so that spaces under rocks and cavities in gravel remain available to the Big Creek crayfish and St. Francis River crayfish.”

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

In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review of listing actions under the Act, we solicited independent scientific review of the information contained in the SSA report. We sent the SSA report to four independent peer reviewers and received one response. The peer reviews can be found at https://www.regulations.gov. In preparing the proposed rule, we incorporated the results of these reviews, as appropriate, into the SSA report, which was the foundation for the proposed rule and this final rule.

A thorough review of the taxonomy, life history, and ecology of the Big Creek crayfish and the St. Francis River crayfish is presented in the SSA report (Service 2022, entire).

The Big Creek crayfish ( Faxonius peruncus ) is a small, olive-tan crayfish with blackish blotches and specks over the upper surface of pincers, carapace, and abdomen. Length of adult individuals ranges from 1.1 to 2.2 inches (in) (2.8 to 5.6 centimeters (cm)). The St. Francis River crayfish ( Faxonius quadruncus ) is a small, dark brown crayfish with blackish blotches or specks over the upper surfaces of the pincers, carapace, and abdomen. Lengths of adult individuals of St. Francis River crayfish have been observed to be similar to adult Big Creek crayfish.

Both the Big Creek crayfish and the St. Francis River crayfish have localized distributions in the Upper St. Francis River watershed upstream of Wappapello Dam in Iron, Madison, St. Francois, Washington, and Wayne Counties in southeastern Missouri (see figure 1, below). The Big Creek crayfish appears most abundant in Big Creek and other streams on the west side of the watershed, as well as in the Twelvemile Creek subwatersheds on the east side; the St. Francis River crayfish mainly inhabits the upper St. Francis River tributaries on the upper end of the Upper St. Francis River watershed. Despite occupying the Upper St. Francis River watershed at a coarse spatial scale, these two species have been observed at the same location only seven times and exhibit mostly discrete distributions (Westhoff 2011, pp. 34-36).

Big Creek crayfish are generally found in streams with widths less than 33 feet (ft) (10 meters (m)) under small rocks or in shallow burrows in headwater streams and small rocky creeks in shallow depths. St. Francis River crayfish are generally found in swiftly moving streams under rocks and boulders in small headwater streams and up to moderately larger rivers. St. Francis River crayfish may prefer pool/backwater areas and run macrohabitats over faster riffles.

Given that both the Big Creek crayfish and St. Francis River crayfish are habitat generalists (Westhoff 2017, pers. comm.) and not all reaches of streams within the watershed have been sampled, it is likely that the species occur at more locations in the watershed. Therefore, we defined the species' ranges as the streams within subwatersheds (12-digit hydrologic units) known to be occupied by each species. We consider these ranges to be a more accurate depiction of the actual ranges of the Big Creek crayfish and St. Francis River crayfish than using only known locations. Within the St. Francis River mainstem (where it is a 5th order stream), the Big Creek crayfish also intermittently occurs in 86 river miles (rmi) (139 river kilometers (km)), and the St. Francis River crayfish occurs in 99 rmi (159 km). Thus, the Big Creek crayfish is found in 1,069 rmi (1,720 km) and the St. Francis River Crayfish is found in 1,043 rmi (1,679 km) in the Upper St. Francis watershed.

Individuals of the Big Creek crayfish and St. Francis River crayfish mate in the fall. Big Creek crayfish females generate an average of 61 eggs, and St. Francis River crayfish females generate an average of 43 to 81 eggs (Pflieger 1996, pp. 116, 122). The normal lifespan for both the Big Creek crayfish and the St. Francis River crayfish appears to be about 2 years (Pflieger 1996, pp. 116, 122). We presume that both species' feeding habits are similar to those of other crayfish species in the region, and their diets likely consist of plant detritus, periphyton, and invertebrates.

Based on genetic analyses (Fetzner and DiStefano 2008, pp. 12-15), we consider the Big Creek crayfish species to consist of two populations (referred to as the Main and Twelvemile Creek populations), whereas the St. Francis River crayfish species consists of a single population (see figure 1, below). We have no evidence to indicate that there has been a reduction in the number of populations for either species from historical conditions. For analytical purposes and for better representation of groups of individuals that occupy the same area and are subject to the same environmental pressures, we defined finer-scale subpopulations. We consider a subpopulation to be those individuals that are able to interbreed and occur within the same stream reach of occupied habitat. Therefore, multiple subpopulations make up the single population (and species) of the St. Francis River crayfish, and multiple subpopulations make up the two populations of the Big Creek crayfish. For Big Creek crayfish and St. Francis River crayfish subpopulations to be healthy, they require a population size and growth rate sufficient to withstand natural environmental fluctuations and habitat of sufficient quantity and quality to support all life stages (specific details of each of these requirements remains unclear). Healthy subpopulations of each species also require gene flow among subpopulations and a native community structure free from nonnative crayfish species that may outcompete and ultimately displace the two species (for more information, see chapter 2 of the SSA report).

Section 4 of the Act (16 U.S.C. 1533) and the implementing regulations in title 50 of the Code of Federal Regulations set forth the procedures for determining whether a species is an endangered species or a threatened species, issuing protective regulations for threatened species, and designating critical habitat for endangered and threatened species. In 2019, jointly with the National Marine Fisheries Service, the Service issued a final rule that revised the regulations in 50 CFR part 424 regarding how we add, remove, and reclassify endangered and threatened species and the criteria for designating listed species' critical habitat (84 FR 45020; August 27, 2019). On the same day, the Service also issued final regulations that, for species listed as threatened species after September 26, 2019, eliminated the Service's general protective regulations automatically applying to threatened species the prohibitions that section 9 of the Act applies to endangered species (84 FR 44753; August 27, 2019).

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

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

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

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

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

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

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

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

The Act does not define the term “foreseeable future,” which appears in the statutory definition of “threatened species.” Our implementing regulations at 50 CFR 424.11(d) set forth a framework for evaluating the foreseeable future on a case-by-case basis. The term “foreseeable future” extends only so far into the future as the Services can reasonably determine that both the future threats and the species' responses to those threats are likely. In other words, the foreseeable future is the period of time in which we can make reliable predictions. “Reliable” does not mean “certain”; it means sufficient to provide a reasonable degree of confidence in the prediction. Thus, a prediction is reliable if it is reasonable to depend on it when making decisions. It is not always possible or necessary to define foreseeable future as a particular number of years. Analysis of the foreseeable future uses the best scientific and commercial data available and should consider the timeframes applicable to the relevant threats and to the species' likely responses to those threats in view of its life-history characteristics. Data that are typically relevant to assessing the species' biological response include species-specific factors such as lifespan, reproductive rates or productivity, certain behaviors, and other demographic factors.

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

To assess the viability of the Big Creek crayfish and the St. Francis River crayfish, we used the three conservation biology principles of resiliency, redundancy, and representation (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency supports the ability of the species to withstand environmental and demographic stochasticity (for example, wet or dry, warm or cold years), redundancy supports the ability of the species to withstand catastrophic events (for example, droughts, large pollution events), and representation supports the ability of the species to adapt over time to long-term changes in the environment (for example, climate changes). In general, the more resilient and redundant a species is and the more representation it has, the more likely it is to sustain populations over time, even under changing environmental conditions. Using these principles, we identified the species' ecological requirements for survival and reproduction at the individual, population, and species levels, and described the beneficial and risk factors influencing the species' viability.

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

The following is a summary of the key results and conclusions from the SSA report; the full SSA report can be found at Docket No. FWS-R3-ES-2019-0020 on https://www.regulations.gov.

In this discussion, we review the biological condition of the species and its resources, and the threats that influence the species' current and future condition, in order to assess the species' overall viability and the risks to that viability.

The primary threat to the future viability of the Big Creek crayfish and the St. Francis River crayfish is displacement by a nonnative crayfish species (woodland crayfish). Currently, no means to slow or stop the spread of the woodland crayfish exist. Contamination from heavy metal mining and habitat degradation from sedimentation also affect the species' viabilities. A brief summary of these stressors is presented below; for a full description of these stressors, refer to chapter 3 of the SSA report for each species (USFWS 2022, pp. 13-22).

The introduction of nonnative crayfish is one of the primary factors contributing to declining crayfish populations (Taylor et al. 2007, p. 374). Nonnative crayfish species can displace native crayfishes through competition, differential predation, reproductive interference or hybridization, disease transmission, or a combination of these mechanisms (Lodge et al. 2000, pp. 9, 12).

Reproductive interference in the form of hybridization may be the main mechanism driving the displacement of the Big Creek crayfish and the St. Francis River crayfish. Woodland crayfish have been observed engaging in mating behavior with St. Francis River crayfish (Westhoff 2011, p. 117). There is also genetic evidence of hybridization between the woodland crayfish and the Big Creek crayfish, as well as between the woodland crayfish and the St. Francis River crayfish (Fetzner et al. 2016 pp. 19-26). Alleles from both parental species have been detected in individuals in areas invaded by the woodland crayfish, which suggest that both native species readily hybridize with the woodland crayfish (Fetzner et al. 2016, p. 28). Genetic swamping (a process by which the local genotype is replaced) appears to be the mechanism that leads to the eventual full displacement of the native species of crayfish, as at least some of the hybrid young appear to be viable (Fetzner et al. 2016, p. 29).

In 1984, the woodland crayfish, endemic to southeastern Missouri, was first documented in the Upper St. Francis River watershed, which is outside of its native range (Pflieger 1996, p. 82). It is estimated that by 2008 (22 years later), the crayfish had invaded 5 to 20 percent of the total 3,225 rmi in the watershed (DiStefano and Westhoff 2011, p. 40). Within areas invaded by the woodland crayfish, the distribution and abundance of the Big Creek crayfish and St. Francis River crayfish have been substantially impacted. In one stream, the Big Creek crayfish constituted 87 percent of the crayfish community in areas not invaded by the woodland crayfish, but only 27 percent in invaded areas (DiStefano and Westhoff 2011, p. 40). Similarly, the St. Francis crayfish constituted 50 percent of the crayfish community in uninvaded areas, but only 13 percent in invaded areas of the stream. In the invaded areas of these streams, the woodland crayfish had become the dominant species, constituting 57 to 86 percent of the crayfish community (DiStefano and Westhoff 2011, p. 40).

The woodland crayfish's impact on abundance of the Big Creek crayfish and St. Francis River crayfish has resulted in the range contraction of both of the native species. In one stream, the range of the Big Creek crayfish contracted 9.1 rmi (14.7 km) from 2004 to 2009, simultaneously with the woodland crayfish's expansion in the stream (DiStefano and Westhoff 2011, p. 40). In three other streams, the range of the St. Francis River crayfish contracted in conjunction with the woodland crayfish's invasion (Riggert et al. 1999, p. 1999; DiStefano 2008, p. 419).

The known locations of the woodland crayfish are likely an under-representation of where the species is present in the watershed, given that: (1) The majority of locations were documented prior to 2010, and the species can expand at a rate as high as 745 yards (yd) per year (681 meters (m) per year) in the upstream direction and 2,499 yd per year (2,285 m per year) in the downstream direction (DiStefano and Westhoff 2011, pp. 38, 40); and (2) the woodland crayfish has already been introduced at several locations throughout the watershed and has likely been introduced at additional, undocumented locations (it is not feasible to survey every stream throughout the watershed).

Approximately 22 percent of the Big Creek crayfish's range and 16 percent of the St. Francis River crayfish's range occur in areas with contaminated soil. Southeastern Missouri has been a primary producer of lead since the early 1700s, in an area referred to as the Old Lead Mining Belt, and more recently in an area referred to as the New Lead Mining Belt. Although most mining ceased in the 1970s, waste from mining operations is still present in the landscape, resulting in contamination of fish and other aquatic biota, alteration of fish and invertebrate communities, and public health advisories against human consumption of lead-contaminated fish (Czarneski 1985, pp. 17-23; Schmitt et al. 1993, pp. 468-471). The relocation of mine waste (chat) throughout the area as topsoil, fill material, and aggregate for roads, railroads, concrete, and asphalt has further expanded the area of contamination, as has aerial deposition from heavy metal smelters and the use of lead mining tailings for agricultural purposes due to their lime content (NASEM 2017, pp. 25-37). All of these uses have contributed to contamination of streams in portions of the Upper St. Francis River watershed. As a result, 24.2 rmi (38.9 km) of the Little St. Francis River are currently included in the Environmental Protection Agency's (EPA) 303(d) list of impaired waters for not meeting water quality standards for lead (EPA 2020, p. 28; MDNR 2020, p. 8). In 2012, a portion of Big Creek (34.1 rmi; 54.9 km) was added to the EPA's 303(d) list for not meeting water quality standards for lead and cadmium. That stream reach recently was removed from the 303(d) list for lead (in sediment) due to remediation efforts, but 1.8 rmi (2.9 km) remain listed for cadmium (EPA 2020, p. 16).

Studies conducted in southeastern Missouri and other areas demonstrate that heavy metal contamination adversely affects riffle-dwelling crayfish. In a study conducted in a watershed adjacent to that of the Upper St. Francis River, metal concentrations in crayfish at sites downstream of mining activities were significantly higher than those at reference sites (Allert et al. 2008, pp. 100-101). Significantly lower crayfish densities were observed at sites downstream of mining activities than those at reference sites, indicating that metals associated with mining activities have negative impacts on crayfish populations in Ozark streams (Allert et al. 2008, p. 100). Similar results were observed in other areas impacted by mining wastes (including sites in the Upper St. Francis River watershed), with sites downstream of mining activities having significantly higher metal concentrations in crayfish, reduced densities of crayfish (from 80 to 100 percent) (Allert et al. 2008, pp. 100-101; Allert et al. 2013, p. 567), and significantly lower survivorship. The mechanisms by which crayfish can be impacted by heavy metal contamination include interference with orienting (Hubschman 1967, pp. 144-147; Lahman et al. 2015, pp. 443-444), inhibition of respiration or aerobic metabolism, and increased susceptibility to predation.

Crayfish presence is dependent on rocks embedded in little or no sediment and open interstitial spaces (Loughman et al. 2016, p. 645; Loughman et al. 2017, p. 5). There is little gravel accumulation in the Upper St. Francis River watershed due to the surrounding geology. Streambank soils also are less likely to erode than in most Ozark streams because of these lower densities of gravel. Thus, stream channel substrates contain a significant proportion of stable cobble, stone, and boulders, which provide habitat for crayfishes (Boone 2001, p. GE1). However, similar to many Ozark streams, streams within the Upper St. Francis River watershed may experience increased sedimentation in the future if land uses change or if riparian corridors are cleared. Three streams within the watershed have experienced excessive sedimentation due to eroding or breached mine tailings (Boone 2001, p. WQ4; DiStefano 2008, p. 191). Breaches can allow a large volume of tailings to enter a stream, such as the 1,500 cubic yd (1,200 cubic m) spilled into a stream in 1992 (Boone 2001, p. WQ4), and it can take multiple years for the aquatic community to begin to recover following a breach. Excessive deposition of fine sediment from tailings or other sources can cover rocks and cavities used by the Big Creek crayfish and St. Francis River crayfish as refugia (an area in which a population of organisms can survive through a period of unfavorable conditions). The loss of refugia likely results in reduced foraging habitat, thereby reducing carrying capacity and the density of subpopulations. The loss of refugia may also increase competition with the woodland crayfish and potentially facilitate displacement of the Big Creek crayfish and St. Francis River crayfish. The loss of refugia, caused by sedimentation, likely also increases predation risk.

In addition to individually affecting the species, it is likely that several of the risk factors summarized above are acting synergistically or additively on both species. The combined impact of multiple stressors is likely more harmful than a single stressor acting alone. For example, in areas affected by lead mining contamination, the rate of displacement of Big Creek crayfish and St. Francis River crayfish by woodland crayfish may increase. Although lead contamination may have negative effects on woodland crayfish as well, we anticipate cumulative synergistic effects in areas where woodland crayfish have invaded and lead mining contamination is present. Additionally, in areas invaded by the woodland crayfish, the loss of refugia from sedimentation may increase competition between the native species and the woodland crayfish. The combination of stressors acting on the Big Creek crayfish and the St. Francis River crayfish will likely impact them more severely in combination than any one factor alone.

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

Monitoring and research on the Big Creek crayfish and St. Francis River crayfish have been conducted by the Missouri Department of Conservation (MDC) and various other organizations. Multiple evaluations of effects from lead mining contamination on crayfish, including the St. Francis River crayfish, have been conducted by the U.S. Geological Survey (USGS). Monitoring efforts benefit conservation efforts of the Big Creek crayfish and St. Francis River crayfish by providing information on population health and trends and on the magnitude and extent of threats; research efforts provide information on mechanisms by which threats may impact the native crayfishes.

To help curtail the spread of nonnative crayfish in Missouri, MDC amended the Wildlife Code of Missouri (Missouri Code) in 2011-2012, to increase regulations pertaining to the sale, purchase, and import of live crayfishes. While the virile crayfish ( Faxonius virilis ) may still be commercially sold in the State for live bait, all other live crayfishes can be imported, sold, or purchased in Missouri only for the purposes of human consumption or as food for captive animals kept by authorized entities (for example, research institutions/agencies, publicly owned zoos) (Missouri Code of State Regulations 2018b, pp. 6-7). This State regulation effectively bans the sale and purchase of live crayfish for bait, the import and sale of live crayfishes in pet stores, and the purchase and import of live crayfishes by schools for classroom study, all of which are vectors for crayfish invasions. It is also illegal in Missouri to release any baitfish or crayfish into public waters, except as specifically permitted by the MDC (Missouri Code of State Regulations 2018a, p. 3). These State regulations may help reduce the likelihood of future invasions of nonnative crayfishes within the Upper St. Francis River watershed. However, as the woodland crayfish has already been introduced at several locations in the watershed, these State regulations will not affect the inevitable spread of that species within the Upper St. Francis River watershed.

Approximately 41 percent of the Upper St. Francis River watershed is in Federal and State ownership, with the majority managed by the U.S. Forest Service as part of the Mark Twain National Forest. The U.S. Forest Service's management efforts benefit stream health by focusing on riparian protection and control and reduction of sediment entering streams. Other major public landowners in the watershed include the MDC, the U.S. Army Corps of Engineers, and the Missouri Department of Natural Resources. Additionally, 5.3 rmi (8.5 km) of Big Creek are designated an “Outstanding State Resource Water.” Missouri Outstanding State Resource Waters are high-quality waters with significant aesthetic, recreational, or scientific value and receive special protection against degradation in quality (Missouri Code of State Regulations 2018c, pp. 14, 16). These protections help maintain water quality and minimize additional sedimentation; therefore, these protections may maintain the quantity and quality of habitat of the Big Creek crayfish and St. Francis River crayfish.

The EPA has conducted, and has plans to continue, extensive remediation efforts in areas of southeastern Missouri impacted by lead mining, including the Upper St. Francis River watershed (EPA 2017, entire; EPA 2018b, entire). These efforts include sediment, soil, and mine waste removal. The EPA also has funded the development of a watershed master plan for the Little St. Francis River, located in the upper end of the watershed (EPA 2018a, entire). This plan will identify sources of pollution (related to lead mining) and measures to reduce the pollution.

To evaluate the current (and future viability) of the Big Creek crayfish and the St. Francis River crayfish, we assessed a range of conditions to allow us to consider the species' resiliency, representation, and redundancy. For the purposes of this assessment, populations were delineated using known locations and expanded to a subwatershed scale As previously stated, we scaled down to a subpopulation level for analytical purposes, as both species have a limited number of populations. In the case of the St. Francis River crayfish, population-level ecology is also species-level ecology because genetic analyses indicate the entire species exists as a single population. Scaling down to the subpopulation level allowed us to better represent and compare groups of individuals at a finer scale. A summary of the current condition of each species is given at the end of this section (Table 1 and Table 2).

The Big Creek crayfish and St. Francis River crayfish currently occur in 16 subwatersheds. In 2008, it was estimated that the woodland crayfish occupied 103 to 403 rmi (166 to 649 km) or 5 to 20 percent of the total 2,004 rmi (3,225 km) in the Upper St. Francis River watershed (DiStefano and Westhoff 2011, p. 40). Based on known locations of the woodland crayfish, we know that 5 of the 16 Big Creek crayfish subwatersheds have been invaded (31 percent) and 4 of the 16 St. Francis River subwatersheds have been invaded (25 percent). We also know that the invasion has resulted in extirpation of the Big Creek crayfish in 9.1 rmi (14.7 km) and of the St. Francis River crayfish in 8.5 rmi (13.7 stream km) (Figure 2). This is likely a sizable underestimate of the actual extent of both range contractions, given that data for known native range contractions represent conditions in only 2 of the 11 streams known to be invaded by the woodland crayfish (the range contractions for each species occurred in different streams).

In addition, the known locations of the woodland crayfish depicted in Figure 2 are likely an under-representation of where the species is present in the watershed given that (1) the majority of locations were documented prior to 2010, (2) the species can expand at a rate as high as 745 yards (y) per year (681 m per year) in the upstream direction and 2,499 y per year (2,285 m year) in the downstream direction (DiStefano and Westhoff 2011, pp. 38, 40) and (3) the woodland crayfish has already been introduced at several locations throughout the watershed and has likely been introduced at additional, undocumented locations (it is not feasible to survey every stream throughout the watershed). Finally, there is currently no means to slow or stop the spread of the woodland crayfish.

To evaluate the current condition of the Big Creek crayfish and St. Francis River crayfish in terms of the 3Rs, we reviewed available information on health of the subpopulations and queried species experts on the species' representation and redundancy. The full explanation of this analysis can be found in the SSA report; a summary of our conclusions is given below.

Although the Twelvemile Creek population of the Big Creek crayfish has not been invaded by the woodland crayfish, the woodland crayfish has been documented at 30 locations within the Main population, with 5 of the 14 (36 percent) of the population's subwatersheds invaded. Based on the Big Creek crayfish's range contractions and the rate at which the woodland crayfish can expand, we expect that range contractions are happening throughout the other invaded subwatersheds. We also conclude that it is likely that St. Francis River crayfish abundance in the Main population has been substantially reduced from heavy metal contamination given that 208 rmi (335 km) of the 940 rmi (1,514 km), or 22 percent, of the population occurs in areas with heavy metal surface contamination. Studies conducted in nearby watersheds demonstrate that heavy metal contamination reduces abundance. These impacts have reduced resiliency of the Main population and thus resiliency of the Big Creek crayfish has been reduced.

Four of the 16 subwatersheds occupied by the St. Francis River crayfish (25 percent) have been invaded by the woodland crayfish. Similar to the Big Creek crayfish, we expect that contractions of the St. Francis River crayfish are occurring in these areas based on range contractions documented elsewhere and the rate at which the woodland crayfish can expand. Resiliency of the St. Francis River crayfish has been further reduced due to impacts from heavy metal contamination, with 16 percent of the range occurring in areas with heavy metal contamination.

The narrow ranges of both the Big Creek crayfish and St. Francis River crayfish also inherently make them vulnerable to environmental variation and stochastic events that could affect their entire range (for example, extreme drought or flooding).

We consider Big Creek crayfish representation as having healthy subpopulations in both the Twelvemile Creek population and the Main population, to maintain the full breadth of adaptive diversity (and, thus, adaptive capacity). There appears to be gene flow throughout most of the Big Creek crayfish's range (Fetzner and DiStefano 2008, p. 12). However, the Big Creek crayfish in the Twelvemile Creek population contain unique haplotypes (a group of alleles that are inherited from a single parent) that were not found anywhere else in the watershed (Fetzner and DiStefano 2008, p. 12). Although the Twelvemile Creek population is currently not impacted by the woodland crayfish, the range of the Main population has been reduced due to woodland crayfish invasion, with 36 percent of the subwatersheds invaded (Table 1 and Table 2). Therefore, the species may have lost some level of representation. For the St. Francis River crayfish, we consider representation as having multiple, healthy subpopulations distributed across the range of the species to maintain the breadth of adaptive diversity (that is, throughout its range in the Upper St. Francis River watershed). Similar to the Big Creek crayfish, some level of representation of the St. Francis River crayfish may have been lost due to documented and undocumented range contractions, with 4 of the 16 (25 percent) of the St. Francis River subwatersheds invaded.

For the purposes of the SSA, we define a catastrophic event as a biotic or abiotic event that causes significant impacts at the population level such that the population cannot rebound from the effects or the population becomes highly vulnerable to normal population fluctuations or stochastic events.

Based on expert input (further described in the SSA report), we do not consider extreme drought or chemical spills as catastrophic events that are likely to have catastrophic effects on the Big Creek crayfish and St. Francis River crayfish at the species-level. While these events may not have the devastating effects of a catastrophic event, the occurrence of extreme droughts or chemical spills would reduce resiliency of the species acting as a stressor on a more localized scale. These stressors may potentially extirpate or compromise subpopulations throughout the impacted area (see chapter 3 of the SSA report). However, both species are inherently vulnerable to extreme events or large-scale stressors given their small range, and there has been some reduction of in-population redundancy due to the extirpation of individuals (and subpopulations) in some areas because of woodland crayfish invasion.

Executive Summary

Why we need to publish a rule. Under the Act, a species warrants listing if it meets the definition of an endangered species (in danger of extinction throughout all or a significant portion of its range) or a threatened species (likely to become endangered within the foreseeable future throughout all or a significant portion of its range). If we determine that a species warrants listing, we must list the species promptly and designate the species' critical habitat to the maximum extent prudent and determinable. We have determined that the South Llano springs moss meets the definition of an endangered species; therefore, we are listing it as such. Both listing a species as an endangered or threatened species and designating critical habitat can be completed only by issuing a rule through the Administrative Procedure Act rulemaking process.

What this document does. This rule lists the South Llano springs moss ( Donrichardsia macroneuron ) as an endangered species under the Act. We are excluding the single proposed critical habitat unit for the species.

The basis for our action. Under the Act, we may determine that a species is an endangered or threatened species because of any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We have determined that increased groundwater pumping from the Edwards-Trinity aquifer that supplies water for the springs that the South Llano springs moss is dependent on, as well as flash floods, sedimentation, invasive plant species, a single population, small population size, and lack of genetic diversity, and cumulative impacts from these threats, pose threats to this plant species to the degree that listing it as an endangered species under the Act is warranted.

Section 4(a)(3) of the Act requires the Secretary of the Interior (Secretary) to designate critical habitat concurrent with listing to the maximum extent prudent and determinable. Section 3(5)(A) of the Act defines critical habitat as (i) the specific areas within the geographical area occupied by the species, at the time it is listed, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protections; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination by the Secretary that such areas are essential for the conservation of the species. Section 4(b)(2) of the Act states that the Secretary must make the designation on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impacts of specifying any particular area as critical habitat.

Please refer to the proposed listing and critical habitat rule (86 FR 53609; September 28, 2021) for a detailed description of previous Federal actions concerning this species.

We reviewed the comments related to our proposed listing determination and critical habitat for the South Llano springs moss (see Summary of Comments and Recommendations, below) and completed our analysis of areas considered for exclusion under section 4(b)(2) of the Act. This final rule incorporates changes from our proposed listing and critical habitat rule (86 FR 53609; September 28, 2021) based on the exclusion analysis described in Exclusions Based on Other Relevant Impacts, below.

Specifically, we have determined that the benefits of excluding critical habitat outweigh the benefits of inclusion. For a complete description of our exclusion analysis, see Consideration of Impacts under Section 4(b)(2) of the Act, below. Based on our analysis, we are excluding the Upper South Llano River Unit (0.48 acre (ac) (0.19 hectares (ha))) of proposed critical habitat. As this was the only unit proposed for designation as critical habitat, no critical habitat is designated for this species in this rule.

Because we are not designating critical habitat for this species, we present an abbreviated list of determinations under Required Determinations in this rule (see below). In that portion of this rule, we present only those determinations that apply to listing actions due to the Act's requirement that listing decisions be made “solely on the basis of the best scientific and commercial data available” (16 U.S.C. 1533(b)(1)(A)), instead of the longer list of determinations that apply to critical habitat designations.

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

In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review of listing actions under the Act, we sought the expert opinions of four appropriate specialists regarding the SSA. We received one response. We also sent the SSA report to partners, including scientists with expertise regarding this species, for review. We received review from one partner (Texas Parks and Wildlife Department).

The South Llano springs moss is an aquatic moss that grows on submerged or partially submerged rocks. The deep, loosely interwoven mats are blue-green to blackish-brown when shaded and yellow-green when exposed to full sun. Like all mosses, the South Llano springs moss forms clonal colonies of leaf-bearing stems.

The South Llano springs moss has an extremely limited range: it has only been documented in two locations and is thought to be extirpated from one of those. The remaining extant site is from Seven Hundred Springs, on the South Llano River in Edwards County, Texas. The extirpated site, referred to as the Redfearn site, was about 5 kilometers (km) (3.1 miles (mi)) downstream from Seven Hundred Springs in Kimble County, Texas, although the exact location is unknown. Both sites occur within the Edwards Plateau. Researchers visited 10 other springs in the Llano and South Llano River watersheds in 1978 and 1979 but found no additional populations (Wyatt and Stoneburner 1980, pp. 514, 516).

The South Llano springs moss was discovered at Seven Hundred Springs in 1932 and was most recently confirmed there in 1979 (Wyatt and Stoneburner 1980, entire). When last observed in 1979, the South Llano springs moss was abundantly dispersed in the spring outflow, partially submerged in shaded areas within an area of about 10 by 100 meters (m) (33 by 328 feet (ft)) between the springs and the river below on privately owned land (Wyatt and Stoneburner 1980, p. 516). Observation of the habitat from the opposite side of the river in 2017 indicated that the habitat appears to be in excellent condition (Service 2017, entire). This is the best available information we have for this site; consequently, we consider the Seven Hundred Springs population to be extant. The South Llano springs moss was last documented at the Redfearn site in 1971. The two specimen labels from these collections state that they were collected “1 mile south of Telegraph” with one specimen collected on a dam and the other from limestone at the edge of the creek. On topographic maps, Telegraph is a location consisting of a single store that is not directly along the river; however, there is a road connecting Telegraph to the South Llano River with a bridge, and this may be the location from which Redfearn was measuring. Due to the vague location description, there is uncertainty around the exact location of the Redfearn site. In 2017, we conducted surveys along 5.7 km of the South Llano River, including the 2.25 km in which we believe Redfearn collected his specimens. All aquatic moss species encountered were collected and a sample of each of the four species encountered was sent to a bryologist at the Missouri Botanical Garden for identification. None of the species collected were found to be the South Llano springs moss. This is the best available information we have for this site; consequently, we consider the Redfearn population to be extirpated. It is possible that the species does not occur anywhere else. However, few surveys for this species have been conducted. Consequently, it is possible that this species occurs elsewhere along Paint Creek or the South Llano River. The best available data indicate that only the Seven Hundred Springs population persists.

A thorough review of the taxonomy, life history, and ecology of the South Llano springs moss is presented in the SSA report (version 1.1; Service 2023, entire).

Section 4 of the Act (16 U.S.C. 1533) and the implementing regulations in title 50 of the Code of Federal Regulations set forth the procedures for determining whether a species is an endangered species or a threatened species, issuing protective regulations for threatened species, and designating critical habitat for endangered and threatened species. In 2019, jointly with the National Marine Fisheries Service, the Service issued a final rule that revised the regulations in 50 CFR part 424 regarding how we add, remove, and reclassify endangered and threatened species and the criteria for designating listed species' critical habitat (84 FR 45020; August 27, 2019). On the same day, the Service also issued final regulations that, for species listed as threatened species after September 26, 2019, eliminated the Service's general protective regulations automatically applying to threatened species the prohibitions that section 9 of the Act applies to endangered species (84 FR 44753; August 27, 2019).

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

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

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

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

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

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

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

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

The Act does not define the term “foreseeable future,” which appears in the statutory definition of “threatened species.” Our implementing regulations at 50 CFR 424.11(d) set forth a framework for evaluating the foreseeable future on a case-by-case basis. The term “foreseeable future” extends only so far into the future as the Services can reasonably determine that both the future threats and the species' responses to those threats are likely. In other words, the foreseeable future is the period of time in which we can make reliable predictions. “Reliable” does not mean “certain”; it means sufficient to provide a reasonable degree of confidence in the prediction. Thus, a prediction is reliable if it is reasonable to depend on it when making decisions.

It is not always possible or necessary to define the foreseeable future as a particular number of years. Analysis of the foreseeable future uses the best scientific and commercial data available and should consider the timeframes applicable to the relevant threats and to the species' likely responses to those threats in view of its life-history characteristics. Data that are typically relevant to assessing the species' biological response include species-specific factors such as lifespan, reproductive rates or productivity, certain behaviors, and other demographic factors.

The SSA report documents the results of our comprehensive biological review of the best scientific and commercial data regarding the status of the species, including an assessment of the potential threats to the species. The SSA report does not represent our decision on whether the species should be listed as an endangered or threatened species under the Act. However, it does provide the scientific basis that informs our regulatory decisions, which involve the further application of standards within the Act and its implementing regulations and policies. The following is a summary of the key results and conclusions from the SSA report; the full SSA report can be found at Docket FWS-R2-ES-2020-0015 on https://www.regulations.gov.

To assess South Llano springs moss' viability, we used the three conservation biology principles of resiliency, redundancy, and representation (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency supports the ability of the species to withstand environmental and demographic stochasticity (for example, wet or dry, warm or cold years), redundancy supports the ability of the species to withstand catastrophic events (for example, droughts, large pollution events), and representation supports the ability of the species to adapt over time to long-term changes in the environment (for example, climate changes). In general, the more resilient and redundant a species is and the more representation it has, the more likely it is to sustain populations over time, even under changing environmental conditions. Using these principles, we identified the species' ecological requirements for survival and reproduction at the individual, population, and species levels, and described the beneficial and risk factors influencing the species' viability.

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

In this discussion, we review the biological condition of the species and its resources, and the threats that influence the species' current and future condition, in order to assess the species' overall viability and the risks to that viability.

Based on the conditions of the only known current and historical populations, the South Llano springs moss requires a constant flow of mineral-rich spring water or spring-fed river water over shallow limestone rocks. Seven Hundred Springs and the areas thought to contain the Redfearn sites are supported by spring flows within the Edwards-Trinity aquifer and the South Llano River watershed (Seven Hundred Springs and Big Paint Springs). These springs have never ceased flowing in recorded history. Water from these springs emerges at a very consistent temperature and is rich in travertine minerals. Rocks and plants immersed in the upper South Llano River quickly become encrusted with travertine- or tufa-like mineral deposits, to an unusual degree not seen in most springs in the Edwards-Trinity aquifer (Service 2017, p. 2). Thus, it is possible that high mineral concentrations, or the precipitation of minerals from solution, could be requirements for the establishment and growth of South Llano springs moss individuals.

The water temperature of Seven Hundred Springs was consistently 21.5 degrees Celsius (°C) (70.7 degrees Fahrenheit (°F)) in June, and the pH ranged from 7.0 to 7.2 (Wyatt and Stoneburner 1980, p. 516). The species occurred in both shaded and exposed niches at Seven Hundred Springs (Wyatt and Stoneburner 1980, p. 516). Associated vascular plant species included maidenhair fern ( Adiantum capillus-veneris ), southern shield fern ( Thelypteris kunthii ), watercress ( Nasturtium officinale ), and members of the mint family (Lamiaceae) and composite family (Asteraceae) (Wyatt and Stoneburner 1980, p. 516). Associated moss species included Hygroamblystegium tenax and Eucladium verticillatum (Wyatt and Stoneburner 1980, p. 517).

Mosses closely related to the South Llano springs moss reproduce both sexually and asexually. However, there is no evidence that sexual reproduction is occurring in the single remaining known site of occurrence, as no plants with female reproductive structures were observed in the wild population or during a 16-month propagation study in 1978 and 1979 (Wyatt and Stoneburner 1980, p. 517). The plants cultivated in captivity produced only male reproductive structures. It is possible that the known population may be a clone of a single or a few male individuals and that sexual reproduction is no longer possible for the species. Therefore, the South Llano springs moss has extremely low representation with one or just a few genetically identical individuals.

In addition to the habitat requirements described above, sufficiently resilient populations of South Llano springs moss need to be large enough that local stochastic events do not eliminate all individuals, allowing the overall population to recover from any one event. The larger a population is, the greater the chances that a portion of the population will survive. The minimum viable population size is not known for this species. However, the geographic extent is provided from the observations of Wyatt and Stoneburner (1980, p. 516). When last observed, the South Llano springs moss grew in the spring outflow partially submerged in shaded areas within a 10-m (33-ft) zone between the springs and the river below (Wyatt and Stoneburner 1980, p. 516). We assume that the population could be as large as the spring flow and substrate allow in this zone. The area occupied by a moss population is a practical surrogate for abundance, provided that it is understood that this does not address the number of genetically unique individuals. Since the South Llano springs moss occupies only a small area at one location, this species has no redundancy and would be unable to recolonize following a catastrophic event.

Recruitment is also needed for populations to be adequately resilient. The colony at Seven Hundred Springs may be a clone of a single individual, or only male individuals, and is presumed incapable of sexual reproduction (Wyatt and Stoneburner 1980, p. 520). Unless female individuals are present, the colony of South Llano springs moss at Seven Hundred Springs can persist and grow only through vegetative budding or through the establishment of fragments that happen to lodge in suitable niches. These mats can expand to occupy new habitats while the portion that established earlier dies. An individual remains alive as long as old stems die no faster than new stems develop. The same individual could migrate back and forth through available habitats for an unlimited period of time, and it is not inconceivable that the individuals we see today arose from spores that germinated many thousands of years ago. For the species to persist, the recruitment of new individuals must equal or exceed mortality.

The species' range may have been more extensive 10,000 years ago, and subsequently became restricted to this single location as the climate warmed and other springs periodically stopped flowing (Wyatt and Stoneburner 1980, pp. 519-520). To assess the climate changes that could affect this species into the future, we examined the climate parameters using both the representative concentration pathway (RCP) 4.5 and RCP 8.5 scenarios to provide a range of projected values. These models predict that by 2074, climate changes could result in a reduction of aquifer recharge and an increased duration and severity of droughts and heavy rainfall, thereby increasing the threats of interrupted spring flows and flash floods. Annual precipitation is highly variable in central Texas, and severe, multi-year droughts occurred during the 1950s and from 2006 through 2012. During these historical periods of drought, only the largest springs along the South Llano River, including Seven Hundred Springs, continued flowing, but at lower rates. Prolonged drought in combination with increased pumping from the Edwards-Trinity aquifer could increase the probability of interrupted flows of these springs and, consequently, the extirpation or extinction of the South Llano springs moss. Despite the frequency of prolonged drought, the region is also subject to extremely heavy rainfall, often resulting from tropical storms in the Gulf of Mexico as well as the Pacific Ocean. All of these factors contribute to flash floods (high intensity, low duration floods) that can drastically change stream beds and the surrounding vegetation, potentially scouring the South Llano springs moss from its rock substrate along the edge of the stream, or burying it beneath deposits of silt, sand, and gravel.

The amount of pumping from the Edwards-Trinity aquifer is one of the most important factors influencing storage in the aquifer and spring flows. Aquifer water levels are stable or have declined slightly over most of the Edwards-Trinity aquifer, but in some areas, heavy pumping has led to long-term declines in aquifer levels and diminished or interrupted spring flows (George et al. 2011, p. 35; Region F Water Planning Group 2015, pp. 1-34, 3-15; Plateau Region Water Planning Group 2016, pp. 7-11). These sources project relatively little growth in the human population in Edwards and Kimble Counties during the next 50 years. Conversely, population growth is projected to increase for five central Texas counties, which include the metropolitan areas of San Antonio, New Braunfels, San Marcos, Austin, Round Rock, and Georgetown, by 32 percent between 2017 and 2037, and by 53 percent between 2017 and 2050 (Texas Demographic Center 2017, p. 1). It is reasonably foreseeable that increased pumping may occur from the Edwards-Trinity aquifer for transfer to other regions to supply increased municipal water demands. This increased pumping could reduce water storage in the Edwards-Trinity aquifer and spring flows in the South Llano River. Loss of spring flows, even for a short time, would likely reduce or extirpate the only known remaining population of the South Llano springs moss because the species requires constant immersion in flowing spring water to persist.

The Upper Llano River Watershed Protection Plan (Broad et al. 2016, pp. 51, 64-66, 86) identifies increased runoff, evapotranspiration, and sediment loading as impacts to the upper Llano River watersheds due to the encroachment of woody species. Recharge into the Edwards-Trinity aquifer in Edwards County has been reduced during prior periods of vegetation loss from overgrazing, resulting in increased runoff and the drying of some smaller springs (Brune 1981, p. 173). Aquifer recharge may also have been reduced by the encroachment of brush into formerly grass-dominated uplands (South Llano Watershed Alliance 2012, p. 9; Broad et al. 2016, pp. 40-41, 51). Aquifer recharge would also be reduced by an increase in evapotranspiration, due to increased temperatures.

Small populations are less able to recover from losses caused by random fluctuations in recruitment (demographic stochasticity) or variations in spring outflow (environmental stochasticity) (Service 2015, p. 12). In addition to population size, it is likely that population density also influences population viability, as sexual reproduction, if it occurs at all in the species' current situation, requires male and female mosses to be in close proximity. Small, reproductively isolated populations are also susceptible to the loss of genetic diversity, to genetic drift, and to inbreeding (Barrett and Kohn 1991, pp. 3-30). The loss of genetic diversity may reduce the ability of a species or population to resist pathogens and parasites, to adapt to changing environmental conditions, or to colonize new habitats. The combined demographic and genetic consequences of small population sizes may reduce population recruitment, leading to even smaller populations and greater isolation, and further decreasing the viability of the species. These factors may already have contributed to the decline of the South Llano springs moss to its current state of extreme endemism in the upper South Llano River. All of the above stressors are exacerbated by the fact that the South Llano springs moss likely consists of only one small population. This species has an extremely low level of representation, no redundancy, and limited resiliency making it vulnerable to catastrophic events such as flash floods and droughts.

We note that, by using the SSA framework to guide our analysis of the scientific information documented in the SSA report, we have not only analyzed individual effects on the species, but we have also analyzed their potential cumulative effects. We have considered the cumulative effects from climate change, aquifer recharge, population growth, and groundwater pumping on the spring flows on which the South Llano springs moss is dependent. We have also considered the risk of prolonged drought and increased flash floods due to climate change. We incorporate the cumulative effects into our SSA analysis when we characterize the current and future condition of the species. To assess the current and future condition of the species, we undertake an iterative analysis that encompasses and incorporates the threats individually and then accumulates and evaluates the effects of all the factors that may be influencing the species, including threats and conservation efforts. Because the SSA framework considers not just the presence of the factors, but to what degree they collectively influence risk to the entire species, our assessment integrates the cumulative effects of the factors and replaces a standalone cumulative effects analysis.

We are not aware of any projects specifically dedicated to the conservation of the South Llano springs moss. However, all efforts to improve rangeland and vegetation management within the Edwards-Trinity Aquifer recharge zone, and within the upper South Llano River watershed, and all efforts to manage and conserve the Edwards-Trinity Aquifer itself, contribute to the uninterrupted flow of spring water and protection of this species' habitat. The Partners for Fish and Wildlife program has assisted several local landowners with conducting upland habitat restoration and management. The landowner of the Seven Hundred Springs property has worked with the Partners for Fish and Wildlife Program to conduct prescribed burning and restore 1,600 acres of upland native grassland habitat for migratory monarch butterflies.

The continued existence of the South Llano springs moss requires the uninterrupted flow of groundwater from the Edwards-Trinity Aquifer at Seven Hundred Springs. In Texas, the use of groundwater is managed through the overlapping authorities of Regional Water Planning groups and Groundwater Management Areas established by the Texas Water Development Board and by Groundwater Conservation Districts established by either the Texas Legislature or the Texas Commission on Environmental Quality. The hydrologic basin that supplies the springs of the South Llano River lies within Regional Water Planning regions F (32 counties, including Kimble) and J Plateau (6 counties, including Edwards). The Hydrologic Unit Code (HUC)-12 watersheds (sub-watersheds) of the upper South Llano River occur in four Groundwater Conservation Districts: Real-Edwards Conservation and Reclamation District, Kimble County Groundwater Conservation District, Sutton County Underground Water Conservation District, and Headwaters Underground Water Conservation District. These districts lie within Groundwater Management Area 7, which has established a desired future condition limiting average drawdown of the Edwards-Trinity aquifer to 2.1 m (7 ft). Therefore, if this limit on aquifer drawdown is not exceeded, we do not expect any interruptions to the flow of water at Seven Hundred Springs.

In the proposed rule published on September 28, 2021 (86 FR 53609), we requested that all interested parties submit written comments on the proposal by November 29, 2021. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. A newspaper notice inviting general public comment was published in the Junction Eagle. We did not receive any requests for a public hearing. All substantive information received during comment periods has either been incorporated directly into this final determination or is addressed below.

As discussed in Supporting Documents, above, we received comments from one peer reviewer. We reviewed the comments we received from the peer reviewer for substantive issues and new information regarding the information contained in the SSA report (version 1.1; Service 2023, entire). The peer reviewer generally concurred with our methods and conclusions and did not provide any additional information or substantive comments.

(1) Comment: We received a comment from the State of Texas stating that the Service lacks sufficient data on status, trends, and threats to warrant listing the South Llano springs moss as an endangered species or to designate critical habitat.

Our Response: We are required to make listing determinations based on the best scientific and commercial data available at the time of our rulemaking. In our September 28, 2021, proposed rule (86 FR 53609) and in this final rule, we considered the best scientific and commercial data available regarding the South Llano springs moss to evaluate the species' potential status under the Act. Even though the species was last confirmed to be present in 1979, the best available information indicates the species is extant because the habitat remains intact and there has been no interruption to spring flow since that time. In our SSA, we document ongoing threats to the only known location of the species. We solicited peer review of our evaluation of the available data, and the peer reviewer who responded supports our analysis. In making a listing decision, we are not required to document a decline in species abundance, but rather document threats to the species and the risks these threats pose to the survival of the species. To date, we have been unable to access this location to conduct surveys, but we would welcome the opportunity to do so. Science is a cumulative process, and the body of knowledge is ever-growing. In light of this, we will always take new research into consideration.

Based on the best scientific and commercial data available, in this rule, we list the South Llano springs moss as an endangered species under the Act. We are excluding the single proposed critical habitat unit for the species (for more information, see our exclusion analysis under Exclusions Based on Other Relevant Impacts, below).

(2) Comment: One commenter stated that the listing of the South Llano springs moss would affect the ability of the landowner to use their private property and would require the landowner to bear costs associated with the protection of the species.

Our Response: When a plant species is listed, owners of private property where the species occurs are not obligated to incur any costs related to the species' conservation or alter current land management. The presence of a listed species on privately owned property does not affect land ownership, establish any restrictions on use of or access to the designated areas, or establish specific land management standards or prescriptions. Additionally, the presence of a listed species does not allow the government or public to access private lands.

The Act's section 9 prohibitions apply to the import and export, removal and reduction to possession, interstate or foreign commerce, and sale or offer for sale in interstate or foreign commerce of endangered plants. The prohibition on removal and reduction to possession of endangered plants applies to removing and reducing to possession, and maliciously damaging or destroying, the species on areas under Federal jurisdiction, not on private lands. That prohibition also applies to removing, cutting, digging up, or damaging or destroying the species on any other area in knowing violation of any State (in this case, Texas) law or regulation or in the course of any violation of a State criminal trespass law.

Section 7 of the Act does require Federal agencies to review the projects they fund, regulate, or carry out, such as federally funded highways and federally regulated pipelines and powerlines, to assess their effects on listed plants that occur on private lands. Through consultation with the Service, such projects may be modified to avoid or reduce effects to listed plants. Programs are available to aid interested landowners in the voluntary conservation of listed species. These programs may provide technical or financial assistance and may be requested from a local Service field office.

(3) Comment: One commenter stated that the Service lacks the authority to regulate intrastate species.

Our Response: We have the legal authority to regulate intrastate species. Numerous Federal appellate courts have held that regulation of purely intrastate species is an essential part of the Act's regulatory scheme. See San Luis & Delta-Mendota Water Authority v. Salazar, 638 F.3d 1163 (9th Cir. 2011); Alabama-Tombigbee Rivers Coalition v. Kempthorne, 477 F.3d 1250 (11th Cir. 2007); GDF Realty Investments, LTD. v. Norton, 326 F.3d 622 (5th Cir. 2003); Gibbs v. Babbitt, 214 F.3d 483 (4th Cir 2000); and Nat'l Ass'n of Home Builders v. Babbitt, 130 F.3d 1041 (D.C.Cir. 1997). In particular, the Fifth Circuit Court of Appeals (the Fifth Circuit includes Texas) has held that regulation of purely intrastate species “is an essential part of” the Act's larger regulatory scheme ( GDF Realty, 326 F.3d at 640).

(4) Comment: One commenter stated that the proposed rule would designate much of the Edwards Aquifer as critical habitat.

Our Response: We proposed a critical habitat designation only in the immediate vicinity of Seven Hundred Springs, an area of 0.48 ac (0.19 ha). We have determined that the benefits of excluding this single unit of critical habitat outweigh the benefits of including it, so we are excluding this single 0.48-ac area from critical habitat designation (for more information, see our exclusion analysis under Exclusions Based on Other Relevant Impacts, below). As a result, no critical habitat is being designated for the South Llano springs moss in this rule.

(5) Comment: Two commenters expressed concerns that the listing of the South Llano springs moss would stop or reduce groundwater pumping from the Edwards aquifer.

Our Response: Nothing in this rule requires a reduction or stoppage of groundwater pumping from the Edwards aquifer. See our response to (2) Comment, above. As we state there, section 7 of the Act requires Federal agencies to review the projects they fund, regulate, or carry out, such as federally funded highways and federally regulated pipelines and powerlines, to assess their effects on listed plants. Although increased pumping from the Edwards-Trinity aquifer could potentially pose a threat to the species' survival, especially if combined with prolonged drought, pumping from this aquifer is not regulated by the Federal Government and is unlikely to have a Federal nexus.

(6) Comment: One commenter stated that the economic and societal costs from listing the South Llano springs moss outweigh the extinction of this species.

Our Response: Although we may consider economic impacts from a critical habitat designation, the decision on whether or not to list a species under the Act must rely solely on the best available scientific and commercial data (see 16 U.S.C. 1533(b)(1)(A)), without consideration of economic or societal costs.

(7) Comment: One comment stated that the proposed rule did not provide adequate alternatives through a National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq. ) analysis.

Our Response: It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to NEPA in connection with regulations adopted pursuant to section 4(a) of the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This position was upheld by the U.S. Court of Appeals for the Ninth Circuit ( Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

(8) Comment: One commenter stated that the Service should specify conservation measures for the species.

Our Response: The Act does not require this rule to specify conservation measures for the species. When we list a species as endangered or threatened under the Act, we first propose it as such, then we evaluate new information received through the public comment process, then we make a final determination through a final rule. For the South Llano springs moss, we have determined the species is in danger of extinction. During the rulemaking process, we developed a recovery outline that will be used as the foundation of a recovery plan following listing. The recovery outline will be posted to our Environmental Conservation Online System (ECOS) website ( https://ecos.fws.gov/ecp/ ) within 30 days after this final listing rule is published. The recovery outline presents a preliminary conservation strategy that will guide recovery actions until the full recovery plan is available. We then prepare a draft recovery plan, with the goal of completing it within 18 months of the publication of the final listing rule. We will post the draft recovery plan to ECOS when it is ready and provide a 60-day public review and comment period. The draft recovery plan will contain site-specific management actions needed for recovery, objective and measurable recovery criteria, and estimates of time and cost needed for recovery. Based on public and peer review comments, we will then prepare a final recovery plan, with a goal of completing it within 1 year after completing the draft recovery plan. We will also prepare a recovery implementation strategy, which will contain step-down activities or projects needed to implement the recovery actions described in the recovery plan.

(9) Comment: One commenter recommended that we designate additional unoccupied critical habitat downstream from Seven Hundred Springs.

Our Response: We have the ability to designate areas that are not occupied by the species ( i.e., unoccupied areas) as critical habitat if they possess one or more of the physical and biological features that are essential for the conservation of the species. While we find that the species needs additional populations in more locations in order to recover to the point of no longer needing the protections of the Act, we do not possess sufficient data to demonstrate that any other areas exist that possess habitat essential for the conservation of South Llano springs moss.

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

After evaluating threats to the species and assessing the cumulative effect of the threats under the Act's section 4(a)(1) factors, we are listing the South Llano springs moss as an endangered species throughout all of its range. Only two very small populations of South Llano springs moss have been documented, which were last observed in 1971 and 1979. One is now extirpated, and the other is restricted to a 10-by-100-m (33-by-328-ft) zone between Seven Hundred Springs and the South Llano River (Wyatt and Stoneburner 1980, p. 516). Therefore, the species has an extremely low level of representation, and no redundancy, making it vulnerable to catastrophic events such as flash floods and droughts. During historical droughts, such as in the 1950s and 2006-2012, many regional springs ceased flowing, and the flow of Seven Hundred Springs was greatly reduced. Projected climate changes include an increased frequency, duration, and severity of droughts (Factor E), thereby increasing the risk of interrupting the flow of Seven Hundred Springs and the desiccation and mortality of this obligately aquatic moss (Factor A). The amount of pumping from the Edwards-Trinity aquifer is one of the most important factors influencing storage in the aquifer and the spring flows on which the South Llano springs moss relies. Groundwater pumping is likely to increase as the human population grows and as the severity and duration of droughts increases. Prolonged drought (Factor E), in combination with increased pumping from the Edwards-Trinity aquifer (Factor E), further increase the probability of interrupting the flow of Seven Hundred Springs (Factor A) and, consequently, the probability of extinction of the South Llano springs moss.

The South Llano springs moss has little or no genetic diversity (Factor E) because this species likely consists of clones of one or a few male individuals and is no longer capable of sexual reproduction (Factor E). Consequently, the species has very low representation and likely has very little ability to adapt to environmental changes. In addition, the South Llano springs moss has poor redundancy because there is only one small population remaining. One future drought event that reduces the flow of Seven Hundred Springs could result in the extirpation of this species.

We find that the South Llano springs moss is presently in danger of extinction throughout its entire range based on the one small population that is likely genetically compromised. This status puts the species on the brink of extinction where normal stochastic events, such as drought, flooding, or a human-caused drop in the aquifer level, could lead to further decline or loss of the species entirely. The only other known population has not been observed since 1971 and is considered likely extirpated. This one remaining population could be affected by a variety of threats acting in combination to reduce the overall viability of the species. The risk of extinction is high because the remaining population is small, with no known potential for natural recolonization. We find that a threatened species status is not appropriate for the South Llano springs moss because of the species' current precarious condition due to its contracted range, small population size, and likely compromised genetics, and because these stressors are severe, ongoing, and expected to continue into the future.

Therefore, after assessing the best available information, we determine that the South Llano springs moss is in danger of extinction throughout all of its range.

Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range. We have determined that the South Llano springs moss is in danger of extinction throughout all of its range and accordingly did not undertake an analysis of any significant portions of its range. Because the South Llano springs moss warrants listing as endangered throughout all of its range, our determination does not conflict with the decision in Center for Biological Diversity v. Everson, 435 F. Supp. 3d 69 (D.D.C. 2020), because that decision related to significant portion of the range analyses for species that warrant listing as threatened, not endangered, throughout all of their range.

Our review of the best available scientific and commercial information indicates that the South Llano springs moss meets the Act's definition of an endangered species. Therefore, we are listing the South Llano springs moss as an endangered species in accordance with sections 3(6) and 4(a)(1) of the Act.

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

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

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

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

Once this species is listed (see DATES , above), funding for recovery actions may be available from a variety of sources, including Federal budgets, State programs, and cost-share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the State of Texas will be eligible for Federal funds to implement management actions that promote the protection or recovery of the South Llano springs moss. Information on our grant programs that are available to aid species recovery can be found at: https://www.fws.gov/service/financial-assistance.

Please let us know if you are interested in participating in recovery efforts for the South Llano springs moss. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT ).

Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of any endangered or threatened species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with us.

Federal agency actions within the species' habitat that may require conference, consultation, or both as described in the preceding paragraph include management and conservation projects conducted on private lands with support from the Service's Partners for Fish and Wildlife Program; issuance of section 404 Clean Water Act (33 U.S.C. 1251 et seq. ) permits by the U.S. Army Corps of Engineers; construction and maintenance of roads or highways by the Federal Highway Administration; construction and maintenance of railways by the Federal Railroad Administration; and discharge permits from the Environmental Protection Agency.

The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to endangered plants. The prohibitions of section 9(a)(2) of the Act, codified at 50 CFR 17.61, make it illegal for any person subject to the jurisdiction of the United States to: Import or export; remove and reduce to possession from areas under Federal jurisdiction; maliciously damage or destroy on any such area; remove, cut, dig up, or damage or destroy on any other area in knowing violation of any law or regulation of any State or in the course of any violation of a State criminal trespass law; deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in the course of a commercial activity; or sell or offer for sale in interstate or foreign commerce an endangered plant. Certain exceptions apply to employees of the Service, other Federal land management agencies, and State conservation agencies.

We may issue permits to carry out otherwise prohibited activities involving endangered plants under certain circumstances. Regulations governing permits are codified at 50 CFR 17.62. With regard to endangered plants, a permit may be issued for scientific purposes or for enhancing the propagation or survival of the species. The statute also contains certain exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.

It is our policy, as published in the Federal Register on July 1, 1994 (59 FR 34272), to identify to the maximum extent practicable at the time a species is listed those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of a final listing on proposed and ongoing activities within the range of a listed species. Based on the best available information, the following actions are unlikely to result in a violation of section 9, if these activities are carried out in accordance with existing regulations and permit requirements; this list is not comprehensive:

(1) Recreational use of the streams, such as fishing, swimming, and canoeing, as these activities normally take place in the river or on the river bank and not in the spring itself; and

(2) Normal residential landscaping activities, as these activities do not take place in the spring, nor do they affect the quantity or quality of water in the spring.

Based on the best available information, the following activities may potentially result in a violation of section 9 of the Act if they are not authorized in accordance with applicable law; this list is not comprehensive:

(1) Removing, cutting, digging up, or damaging or destroying the South Llano springs moss in knowing violation of any law or regulation of the State of Texas or in the course of any violation of a State criminal trespass law;

(2) Importing the South Llano springs moss into, or exporting it from, the United States;

(3) Delivering, receiving, carrying, transporting, or shipping the South Llano springs moss in interstate or foreign commerce, by any means and in the course of a commercial activity; and

(4) Selling or offering the South Llano springs moss for sale in interstate or foreign commerce.

Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Austin Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

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

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

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

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

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

Our regulations at 50 CFR 424.02 define the geographical area occupied by the species as an area that may generally be delineated around species' occurrences, as determined by the Secretary ( i.e., range). Such areas may include those areas used throughout all or part of the species' life cycle, even if not used on a regular basis ( e.g., migratory corridors, seasonal habitats, and habitats used periodically, but not solely by vagrant individuals).

This critical habitat designation was proposed when the regulations defining “habitat” (85 FR 81411; December 16, 2020) and governing the 4(b)(2) exclusion process for the Service (85 FR 82376; December 18, 2020) were in place and in effect. However, those two regulations have been rescinded (87 FR 37757; June 24, 2022, and 87 FR 43433; July 21, 2022) and no longer apply to any designations of critical habitat. Therefore, for this final rule designating critical habitat for the South Llano springs moss, we apply the regulations at 424.19 and the 2016 Joint Policy on 4(b)(2) exclusions (81 FR 7226; February 11, 2016).

Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.

Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation also does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the Federal agency would be required to consult with the Service under section 7(a)(2) of the Act. However, even if the Service were to conclude that the proposed activity would result in destruction or adverse modification of the critical habitat, the Federal action agency and the landowner are not required to abandon the proposed activity, or to restore or recover the species; instead, they must implement “reasonable and prudent alternatives” to avoid destruction or adverse modification of critical habitat.

Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat).

Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information from the SSA report and information developed during the listing process for the species. Additional information sources may include any generalized conservation strategy, criteria, or outline that may have been developed for the species; the recovery plan for the species; articles in peer-reviewed journals; conservation plans developed by States and counties; scientific status surveys and studies; biological assessments; other unpublished materials; or experts' opinions or personal knowledge.

Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act; (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species; and (3) the prohibitions found in section 9 of the Act. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.

In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12(b), in determining which areas we will designate as critical habitat from within the geographical area occupied by the species at the time of listing, we consider the physical or biological features that are essential to the conservation of the species and which may require special management considerations or protection. The regulations at 50 CFR 424.02 define “physical or biological features essential to the conservation of the species” as the features that occur in specific areas and that are essential to support the life-history needs of the species, including, but not limited to, water characteristics, soil type, geological features, sites, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity. For example, physical features essential to the conservation of the species might include gravel of a particular size required for spawning, alkaline soil for seed germination, protective cover for migration, or susceptibility to flooding or fire that maintains necessary early-successional habitat characteristics. Biological features might include prey species, forage grasses, specific kinds or ages of trees for roosting or nesting, symbiotic fungi, or absence of a particular level of nonnative species consistent with conservation needs of the listed species. The features may also be combinations of habitat characteristics and may encompass the relationship between characteristics or the necessary amount of a characteristic essential to support the life history of the species.

In considering whether features are essential to the conservation of the species, we may consider an appropriate quality, quantity, and spatial and temporal arrangement of habitat characteristics in the context of the life-history needs, condition, and status of the species. These characteristics include, but are not limited to, space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, or rearing (or development) of offspring; and habitats that are protected from disturbance.

We derive the specific physical or biological features essential to the conservation of South Llano springs moss from studies of the species' habitat, ecology, and life history as described below. Additional information can be found in the SSA report (Service 2023, entire; available at https://www.regulations.gov under Docket No. FWS-R2-ES-2020-0015). We have determined that the following physical or biological features are essential to the conservation of South Llano springs moss:

(1) The uninterrupted flow of spring water supplied by the Edwards-Trinity aquifer within the South Llano watershed.

(2) Relatively constant water temperature due to proximity to the point of spring outflow.

(3) A substrate of calcareous or travertine rock not more than 15 centimeters (cm) (6 inches (in)) below the surface of the water.

(4) Contaminant and sediment levels that do not exceed the tolerance limits of South Llano springs moss and associated plant and animal species.

When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features which are essential to the conservation of the species and which may require special management considerations or protection.

The features essential to the conservation of this species may require special management considerations or protection to reduce the following stressors: reduction or loss of spring flow, erosion, and sedimentation. Management activities that could ameliorate these stressors include (but are not limited to): prescribed fire, brush management, and grazing management to increase infiltration into the Edwards-Trinity aquifer and reduce runoff and subsequent flooding.

As required by section 4(b)(2) of the Act, we use the best scientific data available to designate critical habitat. In accordance with the Act and our implementing regulations at 50 CFR 424.12(b), we review available information pertaining to the habitat requirements of the species and identify specific areas within the geographical area occupied by the species at the time of listing and any specific areas outside the geographical area occupied by the species to be considered for designation as critical habitat. We are not designating any areas outside the geographical area occupied by the species because we have not identified any unoccupied areas that meet the definition of critical habitat. While we acknowledge that the conservation of the species will depend on increasing the number of sites, we are not aware of any other area that has habitat suitable to support the species. Therefore, we are unable at this time to identify any specific unoccupied areas that are essential to the species' conservation. For an area to be considered essential unoccupied habitat, we must have reasonable certainty both that the area will contribute to the conservation of the species and that the area contains one or more of the physical or biological features essential to the conservation of the species. The exact location of the Redfearn site is unknown, and, although there are a number of other large springs emerging from the Edwards-Trinity aquifer, it is unknown if these sites would be biologically suitable for the species. In addition, there is uncertainty that the species could be transplanted successfully if suitable sites existed for reintroduction.

In summary, for areas within the geographic area occupied by the species at the time of listing, we delineated critical habitat unit boundaries by evaluating the area of spring flow and submerged limestone within the geographic area occupied at the time of listing. We delineated one critical habitat unit that we determined to be occupied at the time of listing ( i.e., currently occupied) and that contains one or more of the physical or biological features that are essential to support life-history processes of the species.

As a result of our exclusion analysis (see Exclusions Based on Other Relevant Impacts, below), we are not designating critical habitat for this species.

We are not designating critical habitat for South Llano springs moss (see Exclusions Based on Other Relevant Impacts, below).

Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) provides that the Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense (DoD), or designated for its use, that are subject to an integrated natural resources management plan (INRMP) prepared under section 101 of the Sikes Act Improvement Act of 1997 (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation. In preparing this final rule, we have determined that the lands within the unit proposed as critical habitat for South Llano springs moss are not owned or managed by the DoD.

Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from designated critical habitat based on economic impacts, impacts on national security, or any other relevant impacts. Exclusion decisions are governed by the regulations at 50 CFR 424.19 and the Policy Regarding Implementation of Section 4(b)(2) of the Endangered Species Act (hereafter, the “2016 Policy”; 81 FR 7226, February 11, 2016), both of which were developed jointly with the National Marine Fisheries Service (NMFS). We also refer to a 2008 Department of the Interior Solicitor's opinion entitled, “The Secretary's Authority to Exclude Areas from a Critical Habitat Designation under Section 4(b)(2) of the Endangered Species Act” (M-37016). We explain each decision to exclude areas, as well as decisions not to exclude, to demonstrate that the decision is reasonable.

In considering whether to exclude a particular area from the designation, we identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and evaluate whether the benefits of exclusion outweigh the benefits of inclusion. If the analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, the Secretary may exercise discretion to exclude the area only if such exclusion would not result in the extinction of the species. In making the determination to exclude a particular area, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor. We describe below the process that we undertook for taking into consideration each category of impacts and our analyses of the relevant impacts.

Section 4(b)(2) of the Act and its implementing regulations require that we consider the economic impact that may result from a designation of critical habitat. In order to consider economic impacts, we prepared an incremental effects memorandum (IEM) and screening analysis which, together with our narrative and interpretation of effects, we consider our economic analysis of the critical habitat designation and related factors (IEc 2019, entire). The analysis, dated December 20, 2019, was made available for public review from September 28, 2021, through November 29, 2021 (see 86 FR 53609). The economic analysis addressed probable economic impacts of critical habitat designation for South Llano springs moss. Following the close of the comment period, we reviewed and evaluated all information submitted during the comment period that may pertain to our consideration of the probable incremental economic impacts of this critical habitat designation. Additional information relevant to the probable incremental economic impacts of critical habitat designation for the South Llano springs moss is summarized below and available in the screening analysis for the South Llano springs moss (IEc 2019, entire), available at https://www.regulations.gov.

The screening analysis found that the critical habitat designation for the South Llano springs moss would be likely to result in annual incremental costs of approximately $8,100 per year above those incurred due to the species listing alone. These costs would occur as a result of additional administrative efforts to consider adverse modification of critical habitat during section 7 consultations. The designation of critical habitat is not expected to trigger additional requirements under State or local regulations, nor is the designation expected to have perceptional effects on markets.

We considered the economic impacts of the critical habitat designation. The Secretary is not exercising her discretion to exclude any areas from this designation of critical habitat for the South Llano springs moss based on economic impacts.

In preparing this rule, we have determined that the lands within the proposed designation of critical habitat for South Llano springs moss are not owned or managed by the DoD or Department of Homeland Security (DHS), and, therefore, we anticipate no impact on national security or homeland security. We also received no requests for exclusion from DoD or DHS. We did not receive any additional information during the public comment period for the proposed designation regarding impacts of the designation on national security or homeland security that would support excluding any specific areas from the final critical habitat designation under authority of section 4(b)(2) and our implementing regulations at 50 CFR 424.19. Based on this information, the Secretary has determined not to exercise her discretion to exclude any areas from this designation of critical habitat based on impacts on national security or homeland security.

Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security discussed above. We consider a number of factors, including whether there are permitted conservation plans covering the species in the area—such as HCPs, safe harbor agreements (SHAs), or candidate conservation agreements with assurances (CCAAs)—or whether there are non-permitted conservation agreements and partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at the existence of Tribal conservation plans and partnerships and consider the government-to-government relationship of the United States with Tribal entities. We also consider any social impacts that might occur because of the designation.

When identifying the benefits of inclusion for an area, we consider the additional regulatory benefits that the area would receive due to the protection from destruction or adverse modification as a result of actions with a Federal nexus, the educational benefits of mapping essential habitat for recovery of the listed species, and any benefits that may result from a designation due to State or Federal laws that may apply to critical habitat.

In the case of the South Llano springs moss, the benefits of critical habitat include public awareness of the presence of the species and the importance of habitat protection, and, where a Federal nexus exists, increased habitat protection for the South Llano springs moss due to protection from destruction or adverse modification of critical habitat.

When identifying the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in conservation, or in the continuation, strengthening, or encouragement of partnerships. Additionally, continued implementation of an ongoing management plan that provides equal to or more conservation than a critical habitat designation would reduce the benefits of including that specific area in the critical habitat designation.

We evaluate the existence of a conservation plan when considering the benefits of inclusion. We consider a variety of factors, including, but not limited to, whether the plan is finalized; how it provides for the conservation of the essential physical or biological features; whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan will be implemented into the future; whether the conservation strategies in the plan are likely to be effective; and whether the plan contains a monitoring program or adaptive management to ensure that the conservation measures are effective and can be adapted in the future in response to new information.

After identifying the benefits of inclusion and the benefits of exclusion, we carefully weigh the two sides to evaluate whether the benefits of exclusion outweigh those of inclusion. If our analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, we then determine whether exclusion would result in extinction of the species. If exclusion of an area from critical habitat will result in extinction, we will not exclude it from the designation.

Based on the public comments we received, and the best scientific data available, we evaluated whether lands in the critical habitat unit identified in the proposed rule were appropriate for exclusion from the final designation under section 4(b)(2) of the Act. If the analysis indicates that the benefits of excluding lands from the final designation outweigh the benefits of designating those lands as critical habitat, then the Secretary may exercise her discretion to exclude the lands from the final designation. In the paragraphs below, we provide a detailed balancing analysis of the critical habitat being excluded under section 4(b)(2) of the Act.

We sometimes exclude specific areas from critical habitat designations based in part on the existence of private or other non-Federal conservation plans or agreements and their attendant partnerships. A conservation plan or agreement describes actions that are designed to provide for the conservation needs of a species and its habitat, and may include actions to reduce or mitigate negative effects on the species caused by activities on or adjacent to the area covered by the plan. Conservation plans or agreements can be developed by private entities with no Service involvement, or in partnership with the Service, sometimes through the permitting process under Section 10 of the Act.

When we undertake a discretionary section 4(b)(2) analysis, we evaluate a variety of factors to determine how the benefits of any exclusion and the benefits of inclusion are affected by the existence of private or other non-Federal conservation plans or agreements and their attendant partnerships. Shown below is a non-exhaustive list of factors that we consider in evaluating how non-permitted plans or agreements affect the benefits of inclusion or exclusion. These are not required elements of plans or agreements. Rather, they are some of the factors we may consider, and not all of these factors apply to every plan or agreement.

(i) The degree to which the record of the plan, or information provided by proponents of an exclusion, supports a conclusion that a critical habitat designation would impair the realization of the benefits expected from the plan, agreement, or partnership.

(ii) The extent of public participation in the development of the conservation plan.

(iii) The degree to which agency review and required determinations ( e.g., State regulatory requirements) have been completed, as necessary and appropriate.

(iv) Whether NEPA reviews or similar reviews occurred, and the nature of any such reviews.

(v) The demonstrated implementation and success of the chosen mechanism.

(vi) The degree to which the plan or agreement provides for the conservation of the physical or biological features that are essential to the conservation of the species.

(vii) Whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan or agreement will be implemented.

(viii) Whether the plan or agreement contains a monitoring program and adaptive management to ensure that the conservation measures are effective and can be modified in the future in response to new information.

Upper South Llano River Unit (also known as Seven Hundred Springs) —We proposed to designate critical habitat identified as the “Upper South Llano River Unit” (0.48 ac (0.19 ha)) on privately owned lands where the South Llano springs moss occurs.

Our Partners for Fish and Wildlife Program has a history of working with the private landowner on whose property Seven Hundred Springs occurs and where critical habitat was proposed. Since 2013, we have completed five habitat improvement projects in partnership with the private landowner. These projects included prescribed burning on over 1,000 ac plus mechanical restoration on 1,126 ac of upland native grassland habitat that benefit the South Llano springs moss by reducing runoff, flash flooding, and soil erosion, and increasing infiltration of rainwater into the aquifer that supplies Seven Hundred Springs. These benefits to the springs help ensure the physical and biological features necessary for the persistence of the species, including uninterrupted flow of spring water and sediment levels that do not exceed the tolerance limits of the South Llano springs moss.

The benefits of including lands in critical habitat can be regulatory, can be educational, or can aid in recovery of species as generally discussed above. We expect only minimal regulatory benefits from the designation of critical habitat for the South Llano springs moss. Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. The difference in the outcomes of the jeopardy analysis and the adverse modification analysis represents the regulatory benefits and costs of critical habitat. A critical habitat designation requires Federal agencies to consult on whether their activity would destroy or adversely modify critical habitat to the point where recovery could not be achieved. However, all proposed critical habitat is occupied by the species, and thus would require section 7 consultation for any project with a Federal nexus that may affect the South Llano springs moss. Any project that would destroy or adversely modify critical habitat would also jeopardize the continued existence of the species, since the species is entirely dependent upon Seven Hundred Springs for its survival. Additionally, as the proposed critical habitat is located entirely on private property, we foresee very few section 7 consultations due to a lack of a Federal nexus. Any additional projects conducted by the Partners for Fish and Wildlife Program would be covered by a section 7 consultation. The rarity of section 7 consultations results in very limited regulatory benefits for the designation of critical habitat in the proposed Upper South Llano River Unit. Given the anticipated rarity of section 7 consultation, the dependence on private conservation actions is more important.

Another important benefit of including lands in a critical habitat designation is that it can serve to educate landowners, agencies, Tribes, and the public regarding the potential conservation value of an area, and this may focus and contribute to conservation efforts by other parties by clearly delineating areas of high conservation value for certain species. Any information about the South Llano springs moss and its habitat that reaches a wide audience, including other parties engaged in conservation activities, would be considered valuable. We expect the educational benefits to be especially limited in the proposed Upper South Llano River Unit, because it occurs entirely on private lands that are not open to the public. With limited regulatory and educational benefits likely as a result of designating critical habitat, we foresee no other tangible benefits to further recovery of the species, and so the benefits of inclusion are outweighed by the benefits of exclusion as further explained below.

The only known population of the South Llano springs moss is fully within private ownership, and, therefore, Federal agencies have no jurisdiction to manage its habitat. As a result, partnerships with and among private individuals, like the landowner of the proposed Upper South Llano River Unit, are the key to conserving the species through habitat conservation projects such as the Partners for Fish and Wildlife projects that have been completed near Seven Hundred Springs. Therefore, we find it is important to consider the potential benefits that will be realized by fostering positive relationships with the landowner if we exclude the area from critical habitat designation.

Excluding the entirety of the proposed critical habitat, known as the Upper South Llano River Unit, would provide benefits through the continuance and strengthening of our effective cooperative relationship with the landowner to promote the conservation of the South Llano springs moss and its habitat. Since the South Llano springs moss occurs only in the privately owned Upper South Llano River Unit, continued conservation and recovery of this species is entirely dependent upon cooperation and coordination with the landowner. This landowner has worked with our Partners for Fish and Wildlife program in the past, and the aforementioned five habitat improvement projects accomplished in partnership with the private landowner since 2013 have benefited the South Llano springs moss and its habitat. The designation of critical habitat is anticipated to harm the previously cooperative working relationship that we have established with the landowner. We anticipate that continuing our cooperative relationship with the landowner will allow voluntary conservation work to continue, which will benefit the South Llano springs moss and its recovery.

The South Llano springs moss and its habitat are expected to benefit substantially from voluntary landowner management actions that implement appropriate and effective conservation strategies. Where consistent with the discretion provided by the Act, it is beneficial to implement policies that provide positive incentives to private landowners to voluntarily conserve natural resources and that remove or reduce disincentives to conservation (Wilcove et al. 1998, entire; Bean 2002, pp. 1-7). Thus, it is important for the South Llano springs moss's recovery to build on continued conservation activities such as these with a proven partner, and to provide positive incentives to the private landowner to implement voluntary conservation activities. These conservation actions help ensure the uninterrupted flow of spring water and sediment levels that do not exceed the tolerance limits of the South Llano springs moss, aiding the recovery of the species.

The benefits of excluding this area from critical habitat will encourage the continued conservation, land management, and coordination between the landowner and the Service. Excluding the proposed Upper South Llano River Unit from critical habitat helps ensure the future conservation, research, and information sharing for the recovery of the South Llano springs moss.

We have determined that the benefits of exclusion of the proposed Upper South Llano River Unit from critical habitat designation outweigh the benefits of inclusion of the unit because maintaining a positive working relationship and partnership with the landowner is vital to the conservation and recovery of the species. The benefits of designating critical habitat for the moss are few since these lands are privately owned and thus lack a trigger for section 7 consultation for adverse modification of critical habitat unless a project with a Federal nexus is proposed. Additionally, all habitat within the proposed critical habitat unit is occupied, so any project with a Federal nexus would require consultation with us due to the listing of the species. Section 9 of the Act provides few protections to listed plants, and protections to listed plants on private lands pertain only to prohibited actions conducted in knowing violation of any State law or regulation, or in violation of a State criminal trespass law. Without the presence of a Federal nexus which would require a consultation under section 7, the South Llano springs moss would have little to no protections. Since the only known population of this species occurs on this private land, the maintenance of a working relationship with the landowner is vital to the recovery and conservation of the species. Therefore, the benefits of excluding this area from designation as critical habitat for the South Llano springs moss outweigh the benefits of inclusion.

We have determined that excluding all proposed critical habitat from designation will not result in the extinction of the species, nor hinder its recovery. If a Federal action or Federal permitting occurs that may affect the moss, the listing of South Llano springs moss will require evaluation under the jeopardy standard of section 7 of the Act, even absent the designation of critical habitat, and thus will protect the species against extinction. Accordingly, based on the above discussion, the Secretary is exercising her discretion to exclude the entirety of the proposed Upper South Llano River Unit (approximately 0.48 ac (0.19 ha) of land) and, therefore, critical habitat for the moss will not be designated under section 4(b)(2) of the Act because the benefits of exclusion outweigh the benefits of inclusion and will not cause the extinction of the species.

Several Executive Orders, Secretary's Orders, and policies concern working with Tribes. These guidance documents generally confirm our trust responsibilities to Tribes, recognize that Tribes have sovereign authority to control Tribal lands, emphasize the importance of developing partnerships with Tribal governments, and direct the Service to consult with Tribes on a government-to-government basis.

A joint Secretary's Order that applies to both the Service and the National Marine Fisheries Service (NMFS)—Secretary's Order 3206, American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act (June 5, 1997) (S.O. 3206)—is the most comprehensive of the various guidance documents related to Tribal relationships and Act implementation, and it provides the most detail directly relevant to the designation of critical habitat. In addition to the general direction discussed above, the appendix to S.O. 3206 explicitly recognizes the right of Tribes to participate fully in any listing process that may affect Tribal rights or Tribal trust resources; this includes the designation of critical habitat. Section 3(B)(4) of the appendix requires us to consult with affected Tribes when considering the designation of critical habitat in an area that may impact Tribal trust resources, Tribally owned fee lands, or the exercise of Tribal rights. That provision also instructs us to avoid including Tribal lands within a critical habitat designation unless the area is essential to conserve a listed species, and it requires us to evaluate and document the extent to which the conservation needs of the listed species can be achieved by limiting the designation to other lands.

Our implementing regulations at 50 CFR 424.19 and the 2016 Policy are consistent with S.O. 3206. When we undertake a discretionary exclusion analysis under section 4(b)(2) of the Act, in accordance with S.O. 3206 we consult with any Tribe whose Tribal trust resources, tribally owned fee lands, or Tribal rights may be affected by including any particular areas in the designation. We evaluate the extent to which the conservation needs of the species can be achieved by limiting the designation to other areas and give great weight to Tribal concerns in analyzing the benefits of exclusion.

However, S.O. 3206 does not override the Act's statutory requirement of designation of critical habitat. As stated above, we must consult with any Tribe when a designation of critical habitat may affect Tribal lands or resources. The Act requires us to identify areas that meet the definition of “critical habitat” ( i.e., areas occupied at the time of listing that contain the essential physical or biological features that may require special management or protection and unoccupied areas that are essential to the conservation of a species), without regard to land ownership. While S.O. 3206 provides important direction, it expressly states that it does not modify the Secretary's statutory authority under the Act or other statutes.

There are no Tribal lands or Tribal trust resources within the range of the South Llano springs moss.

As discussed above, based on the information provided by entities seeking exclusion, as well as any additional public comments we received, we evaluated whether certain lands in the proposed critical habitat were appropriate for exclusion from final designation pursuant to section 4(b)(2) of the Act. We are not designating critical habitat for the South Llano springs moss; the area we proposed for critical habitat designation but that we are excluding in this rule is described in the table below.

It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to the National Environmental Policy Act (NEPA) in connection with regulations adopted pursuant to section 4(a) of the Act. We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq. ), need not be prepared in connection with listing a species as an endangered or threatened species under the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This position was upheld by the U.S. Court of Appeals for the Ninth Circuit ( Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with Federally recognized Tribes on a government-to-government basis. In accordance with Secretary's Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that Tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes. No Tribal lands or Tribal trust resources will be affected by this rule.

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

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

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

The Regional Administrator of the Greater Atlantic Regional Fisheries Office monitors river herring and shad catch by Atlantic herring vessels. River herring and shad catch caps are allocated to the herring fishery by area and gear type. The four river herring and shad catch caps that are currently allocated to the herring fishery are:

• Gulf of Maine Midwater Trawl Catch Cap;

• Cape Cod Midwater Trawl Catch Cap;

• Southern New England Bottom Trawl Catch Cap; and

• Southern New England Midwater Trawl Catch Cap.

Catch from all trips that land more than 6,600 lb (2,994 kg) of herring is counted towards the applicable river herring and shad catch cap. Regulations at 50 CFR 648.201(a)(4)(ii) require NMFS to implement a 2,000-lb (907.2-kg) herring possession limit for vessels fishing with the specified gear in a specified catch cap closure area beginning on the date that catch is projected to reach 95 percent of the river herring and shad catch cap for that area.

Based on vessel reports, dealer reports, and other available information, the Regional Administrator estimates that midwater trawl herring vessels will have caught 96 percent of the 2023 river herring and shad catch cap allocated to the Cape Cod Catch Cap Area by April 20, 2023. Therefore, effective 0001 hr local time April 26, 2023, through 2400 hr local time on December 31, 2023, midwater trawl vessels may not attempt or do any of the following: Fish for, possess, transfer, receive, land, or sell more than 2,000 lb (907.2 kg) of herring from the Cape Cod Catch Cap Closure Area per trip; or land herring from the Cape Cod Catch Cap Closure Area more than once per calendar day. Also effective 0001 hr local time, April 26, 2023, through 2400 hr local time, December 31, 2023, federally permitted dealers may not attempt or do any of the following: Purchase; receive; possess; have custody or control of; sell; barter; trade; or transfer more than 2,000 lb (907.2 kg) of herring per trip or calendar day from a midwater trawl vessel fishing in the Cape Cod Catch Cap Closure Area, unless it is from a vessel that enters port before 0001 hr local time on April 26, 2023, and catch is landed in accordance with State management measures.

Midwater trawl vessels may transit through or land in the Cape Cod Catch Cap Closure Area with more than 2,000 lb (907.2 kg) of herring on board, provided that: The herring were caught in an area not subject to a 2,000-lb (907.2-kg) limit; all fishing gear is stowed and not available for immediate use as defined by § 648.2; and the vessel is issued a permit appropriate to the amount of herring on board and the area where the herring was harvested.

This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.

NMFS finds good cause pursuant to 5 U.S.C. 553(b)(3)(B) to waive prior notice and the opportunity for public comment because it would be impracticable, unnecessary, and contrary to the public interest. Data only recently became available indicating that midwater trawl herring vessels will catch 95 percent of the river herring and shad catch cap allocated to the Cape Cod Catch Cap Area before the end of the fishing year. High-volume catch and landings in the herring fishery can increase river herring and shad catch relative to catch caps quickly. If implementation of this action is delayed to solicit prior public comment, the 2023 river herring and shad catch cap allocated to the Cape Cod Catch Cap Area will likely be exceeded; thereby undermining the conservation objectives of the Herring Fishery Management Plan (FMP). Additionally, the regulations at § 648.201(a)(4)(ii) are designed to be implemented as quickly as possible to prevent catch from exceeding river herring and shad catch caps and NMFS is acting in accordance with those regulations to carry out the fishery management plan under the authority provided in section 305(d) of the Magnuson-Stevens Fishery Conservation and Management Act. These regulations were subject to public notice and opportunity to comment when they were first adopted in 2014. Further, herring fishing industry participants monitor catch closely and anticipate potential possession limit adjustments as catch totals approach river herring and shad catch caps, and they expect these actions to occur in a timely way consistent with the FMP's objectives. For the reasons stated above, NMFS also finds good cause to waive the 30-day delayed effectiveness in accordance with 5 U.S.C 553(d)(3).