Comments Invited

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2023-1823; Project Identifier MCAI-2023-00314-T” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Fatin Saumik, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7350; email: Fatin.R.Saumik@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

Transport Canada, which is the aviation authority for Canada, has issued Transport Canada AD CF-2023-10, dated February 17, 2023 (Transport Canada AD CF-2023-10) (also referred to after this as the MCAI), to correct an unsafe condition on certain MHI RJ Aviation ULC (formerly Bombardier, Inc.) Model CL-600-2C10, CL-600-2C11, CL-600-2D15, CL-600-2D24, and CL-600-2E25 airplanes. The MCAI states that following maintenance on a Model CL-600-2C10 airplane, a Y-belt (also known as lap belt) was re-installed in the wrong orientation. The MCAI further states that the instructions contained within the aircraft maintenance manual (AMM) on how to install the passenger seat Y-belts, showed an incorrect orientation of the Y-belt assembly. The MCAI confirms the manufacturer updated the AMM tasks and these instructions have been corrected. Y-belts installed in the wrong orientation, if not corrected, could result in passenger injury due to head impact on the front monument during an emergency landing.

The FAA is proposing this AD to address the unsafe condition on these products.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-1823.

The FAA reviewed MHI RJ Service Bulletin 670BA-25-135, Revision B, dated November 25, 2022. This service information specifies procedures to inspect for correct installation (as shown in certain maintenance tasks) of each passenger seat Y-belt. This service information also specifies corrective actions, which include re-installing each incorrectly installed Y-belt per certain maintenance tasks and addressing damage (includes dents or misshapen hooks that attach the belt to the seat).

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

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

This proposed AD would require inspecting certain Y-belts for correct installation and damage and corrective actions if necessary. This proposed AD would also prohibit the use of certain revisions of a maintenance task.

The FAA estimates that this AD, if adopted as proposed, would affect 606 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

The FAA estimates the following costs to do any necessary replacements that would be required based on the results of the proposed inspection. The agency has no way of determining the number of aircraft that might need these replacements.

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

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

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

For the reasons discussed above, I certify this proposed regulation:

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

(2) Would not affect intrastate aviation in Alaska, and

(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

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

Participation in virtual public hearing. To request a virtual public hearing, contact the public hearing team at (888) 372-8699 or by email at SPPDpublichearing@epa.gov. If requested, the virtual hearing will be held on October 4, 2023. The hearing will convene at 11:00 a.m. Eastern Time (ET) and will conclude at 3:00 p.m. ET. The EPA may close a session 15 minutes after the last pre-registered speaker has testified if there are no additional speakers. The EPA will announce further details at https://www.epa.gov/stationary-sources-air-pollution/infrastructure-new-hap-additions.

If a public hearing is requested, the EPA will begin pre-registering speakers for the hearing no later than 1 business day after a request has been received. To register to speak at the virtual hearing, please use the online registration form available at https://www.epa.gov/stationary-sources-air-pollution/infrastructure-new-hap-additions or contact the public hearing team at (888) 372-8699 or by email at SPPDpublichearing@epa.gov. The last day to pre-register to speak at the hearing will be September 25, 2023. Prior to the hearing, the EPA will post a general agenda that will list pre-registered speakers at: https://www.epa.gov/stationary-sources-air-pollution/infrastructure-new-hap-additions.

The EPA will make every effort to follow the schedule as closely as possible on the day of the hearing; however, please plan for the hearings to run either ahead of schedule or behind schedule.

Each commenter will have 4 minutes to provide oral testimony. The EPA encourages commenters to submit the text of your oral testimony as written comments to the rulemaking docket.

The EPA may ask clarifying questions during the oral presentations but will not respond to the presentations at that time. Written statements and supporting information submitted during the comment period will be considered with the same weight as oral testimony and supporting information presented at the public hearing.

Please note that any updates made to any aspect of the hearing will be posted online at https://www.epa.gov/stationary-sources-air-pollution/infrastructure-new-hap-additions. While the EPA expects the hearing to go forward as set forth above, please monitor our website or contact the public hearing team at (888) 372-8699 or by email at SPPDpublichearing@epa.gov to determine if there are any updates. The EPA does not intend to publish a document in the Federal Register announcing updates.

If you require the services of a translator or a special accommodation such as audio description, please pre-register for the hearing with the public hearing team and describe your needs by September 20, 2023. The EPA may not be able to arrange accommodations without advanced notice.

Docket. The EPA has established a docket for this rulemaking under Docket ID No. EPA-HQ-OAR-2022-0441. All documents in the docket are listed in https://www.regulations.gov/. Although listed, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy. With the exception of such material, publicly available docket materials are available electronically in Regulations.gov or in hard copy at the EPA Docket Center, Room 3334, WJC West Building, 1301 Constitution Avenue NW, Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the EPA Docket Center is (202) 566-1742.

Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR-2022-0441. The EPA's policy is that all comments received will be included in the public docket without change and may be made available online at https://www.regulations.gov/, including any personal information provided, unless the comment includes information claimed to be CBI or other information whose disclosure is restricted by statute. Do not submit electronically to https://www.regulations.gov any information that you consider to be CBI or other information whose disclosure is restricted by statute. This type of information should be submitted as discussed below.

The EPA may publish any comment received to its public docket. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e., on the Web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

The https://www.regulations.gov/ website allows you to submit your comment anonymously, which means the EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to the EPA without going through https://www.regulations.gov/, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the internet. If you submit an electronic comment, the EPA recommends that you include your name and other contact information in the body of your comment and with any digital storage media you submit. If the EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, the EPA may not be able to consider your comment. Electronic files should not include special characters or any form of encryption and be free of any defects or viruses. For additional information about the EPA's public docket, visit the EPA Docket Center homepage at https://www.epa.gov/dockets.

Submitting CBI. Do not submit information containing CBI to the EPA through https://www.regulations.gov/. Clearly mark the part or all of the information that you claim to be CBI. For CBI information on any digital storage media that you mail to the EPA, note the docket ID, mark the outside of the digital storage media as CBI and identify electronically within the digital storage media the specific information that is claimed as CBI. In addition to one complete version of the comments that includes information claimed as CBI, you must submit a copy of the comments that does not contain the information claimed as CBI directly to the public docket through the procedures outlined in the Instructions section of this document. If you submit any digital storage media that does not contain CBI, mark the outside of the digital storage media clearly that it does not contain CBI and note the docket ID. Information not marked as CBI will be included in the public docket and the EPA's electronic public docket without prior notice. Information marked as CBI will not be disclosed except in accordance with procedures set forth in 40 Code of Federal Regulations (CFR) part 2.

Our preferred method to receive CBI is for it to be transmitted electronically using email attachments, File Transfer Protocol (FTP), or other online file sharing services ( e.g., Dropbox, OneDrive, Google Drive). Electronic submissions must be transmitted directly to the OAQPS CBI Office at the email address oaqpscbi@epa.gov, and as described above, should include clear CBI markings and note the docket ID. If assistance is needed with submitting large electronic files that exceed the file size limit for email attachments, and if you do not have your own file sharing service, please email oaqpscbi@epa.gov to request a file transfer link. If sending CBI information through the postal service, please send it to the following address: OAQPS Document Control Officer (C404-02), OAQPS, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711, Attention Docket ID No. EPA-HQ-OAR-2018-0747. The mailed CBI material should be double wrapped and clearly marked. Any CBI markings should not show through the outer envelope.

Preamble acronyms and abbreviations. Throughout this document the use of “we,” “us,” or “our” is intended to refer to the EPA. We use multiple acronyms and terms in this preamble. While this list may not be exhaustive, to ease the reading of this preamble and for reference purposes, the EPA defines the following terms and acronyms here:

Organization of this document. The information in this preamble is organized as follows below.

Section 112(b) of the CAA established a list of 189 hazardous air pollutants (HAP). This provision of the CAA also provides the EPA with the authority to modify the list. In response to a petition to the Administrator to list 1-bromopropane or 1-BP (also known as n-propyl bromide (nPB)), the EPA, for the first time, added a new HAP to the CAA section 112(b) HAP list (HAP list) on January 5, 2022. Based on this new addition to the HAP list, the EPA determined that there are several regulatory implications and issues that must be addressed to fully integrate a newly listed HAP into the existing CAA section 112 program. This rule, when finalized, will address the immediate regulatory effects of adding a pollutant to the HAP list. This proposal addresses three specific issues that we identified. The first issue is whether already promulgated National Emission Standards for Hazardous Air Pollutants (NESHAP) would apply to a newly listed HAP. For example, for a NESHAP with a limit for total HAP, owners or operators of sources that emit the newly listed HAP and are subject to the limit need to understand whether they must include the emissions of the newly listed HAP to determine whether the source meets that limit. The second issue is the consideration of the permitting implications for facilities that become major sources under CAA section 112 solely due to the addition of a new pollutant to the HAP list (hereinafter Major Source Due to Listing or “MSDL” facilities). The third issue for a MSDL facility that triggers the applicability of a major source NESHAP is the determination of the applicable emission standards (in particular, whether the source is subject to the standards for new sources or existing sources) and the compliance deadlines for those newly applicable NESHAP requirements.

The EPA is not proposing any changes to the part 70 regulations to address the addition of a new pollutant to the CAA section 112 HAP list as the current program appropriately covers these issues. However, after reviewing the existing NESHAP regulations, the EPA intends to clarify the applicability of previously promulgated NESHAP when the EPA adds a new pollutant to the HAP list by revising 40 CFR 63.64, subpart C. In addition, the EPA is proposing initial notifications, several alternatives to address applicable emission standards and compliance deadlines for MSDL facilities by revising 40 CFR, subpart A.

This proposed rulemaking addresses the immediate compliance obligations for the regulated community following the addition of a new HAP. This is only one part of the overall program to incorporate a new HAP into the CAA section 112 regulatory framework. Future actions within individual NESHAP will address rule-specific issues, including identification of the sources that emit the new HAP; promulgation of standards, as warranted, that include the new HAP by either revising existing NESHAP standards or establishing new standards, as necessary; and identification of engagement and outreach needs with affected communities and other entities.

The actions we are taking regarding section II. are pursuant to our authority under CAA section 112. We consider the regulatory provisions we are proposing under 40 CFR part 63, subpart A to be severable from the regulatory provisions being proposed under 40 CFR part 63, subpart C, as these are two separate regulatory requirements, each of which would operate independently from the other, when finalized.

Categories of entities potentially affected by this proposed action include sources that emit a pollutant that is added to the HAP list. As discussed in more detail in section IV. of this preamble the addition of a pollutant to the HAP list can, for those sources who emit that pollutant, change the source's potential to emit (PTE) such that an area source may become a major source. This change to major source status has regulatory implications that may include CAA operating permitting obligations and applicability of one or more major source NESHAP. This proposed rule addresses these situations.

The statutory authority for this action is provided by sections 112 and 301 of the CAA, as amended (42 U.S.C. 7401 et seq. ). CAA section 112(a) provides “Definitions” applicable to CAA section 112. A major source of HAP is defined under CAA section 112(a) as any “stationary source or group of stationary sources located within a contiguous area and under common control that emits or has the potential to emit considering controls, in the aggregate, 10 tons per year or more of any hazardous air pollutant or 25 tons per year or more of any combination of hazardous air pollutants.” Stationary sources of HAP that are not major sources are defined as “area sources.” Section 112(b)(3)(A) of the CAA allows any person to petition the EPA to modify the CAA section 112(b)(1) list of HAP by adding or deleting a substance. 1 Section 112(d) of the CAA establishes the process for establishing national emissions standards for HAP, commonly referred to as NESHAP but also frequently referred to as either maximum achievable control technology (MACT) standards or generally available control technology (GACT) standards. Section 112(i) of the CAA provides the schedule for compliance with emission standards. Collectively, these statutory provisions and the NESHAP General Provisions codified in 40 CFR part 63, subpart A, provide the framework for establishing emission standards and compliance timing for HAP regulation. These statutory provisions also provide the authority for the EPA to establish requirements to address the immediate regulatory effects when a pollutant is added to the HAP list.

In addition to being available in the docket (Docket ID No. EPA-HQ-OAR-2022-0441), an electronic copy of this proposal is available on the internet. Following signature by the EPA Administrator, the EPA will post a copy of this proposed action at https://www.epa.gov/stationary-sources-air-pollution/infrastructure-new-hap-additions. Following publication in the Federal Register , the EPA will post the Federal Register version of the proposal and key documents at this same website. In addition, a copy of the redline/strikeout version of the regulatory language showing the possible edits needed to incorporate the proposed changes to 40 CFR part 63, subparts A and C is included in the docket for this action (Docket EPA-HQ-OAR-2022-0441). Following signature by the Administrator, the EPA also will post a copy of this document to https://www.epa.gov/stationary-sources-air-pollution/infrastructure-new-hap-additions.

In the 1990 CAA Amendments, Congress established a list of HAP. These HAP are associated with a wide variety of adverse health effects, including, but not limited to cancer, neurological effects, reproductive effects, and developmental effects. The health effects associated with various HAP differ depending upon the toxicity of the individual HAP and the circumstances of exposure, such as the amount of chemical present, the length of time a person is exposed and the stage of life at which the person is exposed. Prior to the 1990 CAA Amendments, the EPA was required to list HAP for regulation under a risk- and health-based approach, which called for a conclusion that a HAP could “cause or contribute to, an increase in mortality, an increase in serious irreversible, or incapacitating reversible illness.” CAA section 112(a)(1), Public Law 91-604, 84 Stat. 1676, 1685 (1970). This approach proved unsatisfactory in achieving the goal of improved public health. In the 1990 CAA Amendments, Congress dispensed with this provision, listed 189 HAP in CAA section 112(b)(1) for regulation under CAA section 112(d), and provided for modifications of the HAP list either by petition or on the Administrator's determination under CAA sections 112(b)(3)(A) and (B).

As relevant here, in CAA section 112(b)(3), Congress provided that any person may petition the Administrator to modify the list of HAP by adding or deleting a pollutant. On January 5, 2022, the EPA published a final rule that added 1-BP to the CAA HAP list, with an effective date of February 4, 2022 (87 FR 393). This addition came as a result of the EPA's determination that the petition we received requesting that we list 1-BP as a HAP provided adequate data to support that 1-BP is an air pollutant and that emissions, ambient concentrations, bioaccumulation or deposition of 1-BP are known to cause or may reasonably be anticipated to cause adverse effects to human health or adverse environmental effects. Before publishing the final rule, EPA published a draft notice of its rationale for granting the petition. 2 ( American Forest and Paper Ass'n v. E.P.A, 294 F.3d 113, 117 n.3 (D.C. Cir. 2002) (“Section 112(b) does not contemplate a formal rulemaking and is not among the sections enumerated in section 307(d)(1) (although other subsections of section 112 are included there).”). This was the first time that a HAP was added to the HAP list that Congress created in 1990. While this was the first action to add a HAP to the list, the EPA is preparing for additional future listings. These listings could come from public petitions, as allowed by CAA section 112(b)(3), through action taken by the Administrator under CAA section 112(b)(2) of the CAA, or through actions or directives from Congress.

Prior to listing 1-BP as a HAP, the EPA evaluated whether any regulatory changes were warranted to the NESHAP program to ensure the effective and efficient implementation of any requirements stemming from the addition of a new pollutant to the HAP list. As part of this review, the EPA published an advanced notice of proposed rulemaking (ANPRM) on June 11, 2021, that sought information about potential NESHAP regulatory requirements resulting from the listing of the first new HAP, 1-BP, as well as other potential implications of the listing of any future HAP (86 FR 31225).

Based on the EPA's review and the public comments received on the ANPRM, the EPA determined that there are several regulatory impacts that could ensue when a pollutant is added to the HAP list. As described in this document, the EPA considered each of these impacts. In some cases, the existing regulatory provisions were sufficient to ensure effective and efficient implementation of the newly listed HAP. In other cases, the EPA determined that the regulations did not adequately address the issues that arise when a pollutant is added to the HAP list. Therefore, for those instances, the EPA is proposing in this action regulatory language to ensure the effective and efficient implementation of a newly listed HAP. The EPA requests comments on whether additional changes are needed to fully and clearly implement provisions related to a new HAP listing.

The EPA evaluated several potential issues related to listing a new HAP. We reviewed whether a new HAP listing has any impact on NESHAP promulgated before the new HAP was added to the list. As discussed below, the EPA concluded that the statute does not support a new HAP being regulated by such a NESHAP unless and until the EPA first evaluates the specific HAP for regulation under CAA section 112 and promulgates standards that include the new HAP. In this action, the EPA is proposing language to be added to 40 CFR part 63, subpart C to clarify this conclusion.

Another question that arose was the period of time allowed for a source to include the newly listed HAP in the source's PTE calculation. Based on the existing language in CAA section 112 and the NESHAP General Provisions (40 CFR part 63, subpart A), the EPA determined that a source must include the new HAP in the source's PTE calculation on the effective date of the listing of the new HAP. This requires including the new HAP in the evaluation of whether the facility is a major source of HAP, or an area source based on the source's PTE calculation.

The addition of the emissions of a newly listed HAP in the calculations of the PTE for a facility could change the facility status from an area source to a major source per the major and area source definitions in CAA section 112. If this occurs, the MSDL facility will face new permitting requirements. In addition, the MSDL facility will need to evaluate whether, due to its major source status, any of its existing emission units are subject to one or more NESHAP that are applicable to emission units located at major sources. For example, in addition to evaluating the NESHAP applicable to the specific industry, the MSDL facility will need to evaluate for purposes of applicability NESHAP that regulate multiple industrial sections such as NESHAP for industrial boilers or reciprocating engines. If applicable NESHAP are identified, the facility would need to evaluate the requirements within each applicable NESHAP and determine compliance requirements. Based on the rationale discussed in section IV.D., this action proposes regulatory language to the NESHAP General Provisions to clarify both the applicability and compliance timelines of newly triggered NESHAP requirements for MSDL facilities.

The EPA also evaluated whether there should be any notification requirements for facilities that emit a newly listed HAP, including requirements for the facility to notify nearby communities. As discussed in section II.B., a facility already operating under a title V operating permit that triggers applicability of any new NESHAP requirements as it becomes a major source ( i.e., MSDL) may need to apply to modify its permit to include such new applicable NESHAP requirements in their permit. MSDL facilities seeking an operating permit for the first time would need to modify or submit a permit application that addresses all applicable requirements consistent with the permitting authority's program. See 40 CFR 70.3(c)(1) and 70.2. A facility that becomes newly subject to a major source NESHAP would also need to submit the initial notification required by the specific applicable NESHAP. This action proposes that initial notifications under 40 CFR part 63, subpart A require some minimal additional information from sources becoming major due to the inclusion of a newly listed HAP in emission calculations.

Section 502(d)(l) of the CAA, 42 U.S.C. paragraph 766la(d)(1), requires each state to develop and submit to the EPA an operating permit program to meet the requirements of title V of the CAA and the EPA's implementing regulations at 40 CFR part 70 (hereinafter “title V”). All major stationary sources of air pollution and certain other non-major sources are required to apply for and operate in accordance with title V operating permits that include emission limitations and other conditions as necessary to assure compliance with applicable requirements of the CAA, including the requirements of the applicable implementation plan. 42 U.S.C. paragraphs 7661a(a), 7661b.

When a pollutant is added to the HAP list, sources that have the potential to emit the new HAP must include the HAP in calculating the source's potential to emit beginning on the effective date of the listing of the new HAP. The inclusion of a new HAP in the source's PTE can result in a change in classification of the source from area source to major source. A source whose classification changes solely due to the addition of a HAP to the HAP list ( i.e., MSDL) will need to determine what, if any, future permitting action must be taken.

Since MSDL facilities are, by definition, not major HAP sources before the HAP listing action, they would be operating as a non-major HAP source under a permit or other authorization. As a non-major ( e.g., area, synthetic area) HAP source, the facility may have a source specific permit, but could also be operating under a general permit or registration permit. Those MSDL facilities that wish to retain their non-major status will need to consider the newly listed HAP when they seek to reduce their PTE HAP and (unless they opt to become true area for HAP) will need to request enforceable permit terms sufficient to reduce the facility's PTE to below HAP major source levels ( i.e., 10 tons of any single HAP and 25 tons of all HAP). Facilities should coordinate all changes in classification with their permitting authority.

If an MSDL facility does not elect to reduce its HAP emissions or PTE to maintain its area source status, as a major source it would be subject to the obligation to obtain a title V operating permit. Under the title V operating permit program, the regulations provide that “[a] timely application for a source applying for a part 70 permit for the first time is one that is submitted within 12 months after the source becomes subject to the permit program or on or before such earlier date as the permitting authority may establish.” 40 CFR 70.5(a)(1)(i). Because permitting authorities can establish more stringent deadlines than 12 months, MSDL facilities should check with their appropriate title V permitting authority to determine when a timely part 70 application is required.

The EPA is not proposing changes to the title V program or regulations; however, some state, local, and tribal title V programs may need to initiate a conforming program revision to update their implementing regulations, e.g., to include newly listed HAP in their HAP definition if their current regulations do not include newly listed HAP. The EPA encourages state, local, and tribal programs to evaluate whether any regulatory changes are needed to their rules to implement newly listed HAP under their approved program and those programs should consult with their respective EPA regional permitting contact for the program if they have questions. State, local, and tribal programs must keep the EPA apprised of regulatory changes they believe are needed to their approved part 70. 40 CFR 70.4(i). The EPA has determined that the current regulations for state programs ( i.e., 40 CFR part 70) and the implementing regulations for federal operating permits (40 CFR part 71) do not need to be revised concurrently with this action because these regulations address permitting requirements in agreement with title V of the CAA, including permitting prompted when new HAP are listed. In particular, 40 CFR 70.3 and 70.2, require that a state program must provide for permitting of, among other major sources, a “major source under section 112 of the Act” including those with potential to emit a HAP or multiple HAP “which has been listed pursuant to section 112(b) of the Act” above major source thresholds. States and some tribes implement title V permitting under their EPA approved programs for sources in their jurisdictions. For sources subject to the federal operating permits program implemented by the EPA, 40 CFR part 71 includes similar applicability provisions (see e.g., 40 CFR 71.3 and 71.2) inclusive of major sources due to listing and other provisions required for implementing permitting requirements for covered sources. The EPA requests comments on the determination that no edits are required to the title V program for this purpose.

This section presents the EPA's proposed rationale for the proposed changes to the NESHAP General Provisions (40 CFR part 63, subpart A) and our proposed conclusions regarding key issues and questions related to listing of new HAP. The issues and questions, along with our proposed conclusions and rationale, are discussed individually below.

In the June 11, 2021, ANPRM addressing the addition of 1-BP to the HAP list, the EPA raised the question of whether an existing NESHAP should apply to a newly listed HAP on the effective date of the HAP listing. The ANPRM solicited data and comments on the potential regulatory impacts of the addition of a HAP to the HAP list. 3

Because this was the first time the EPA was adding a pollutant to the HAP list, the ANPRM discussed several potential issues that could result from the addition of a pollutant to the CAA section 112 HAP list. One question the EPA raised in the ANPRM was whether a newly listed HAP is regulated under any NESHAP that is in existence on the effective date of the newly listed HAP. In the ANPRM, the EPA more fully discussed this question and provided an example of numeric limits in coating rules that are often based on a limitation on the amount of organic HAP per unit. The example was whether the addition of new pollutant to the HAP list could require counting emissions of the new HAP in compliance calculations for many NESHAP for coating operations. This is because in most instances these coatings NESHAP typically define HAP by a direct reference to the HAP list published in the 1990 CAA and as modified pursuant to section 112(b). We noted that any modifications to the HAP list are included in 40 CFR part 63, subpart C. In the ANPRM, the EPA requested comment on whether a newly listed HAP should be regulated under previously existing NESHAP.

On January 5, 2022, the EPA published a final rule that added 1-BP to the HAP list (87 FR 393). Based on our consideration of the comments on the ANPRM and the EPA's own review of statutory requirements, the EPA concluded that a newly listed HAP is not regulated under existing NESHAP and stated that the final rule would “have no direct immediate impacts under 40 CFR part 63 on emissions of 1-BP.”  4

The conclusion that existing NESHAP do not regulate a newly listed HAP is consistent with CAA section 112. First, CAA section 112(e)(4) states that “no action of the Administrator adding a pollutant to the list under subsection (b) or listing a source category or subcategory under subsection 112(c) shall be a final agency action subject to judicial review, except that any such action may be reviewed under such section 7607 [section 307] of this title when the Administrator issues emission standards for such pollutant or category.” This language, by establishing two distinct steps, supports the EPA's conclusion that previously promulgated NESHAP do not regulate newly listed HAP. 5 Rather it is only after the EPA establishes new standards or revises previous standards to include the newly listed HAP (for instance, adding a newly listed organic HAP to a standard that covers total organic HAP) that the listing of a new HAP is subject to review.

Second, having listed the new HAP using the process in CAA section 112(b), CAA section 112(d) sets out prescriptive procedures for establishing emissions standards for major sources. These statutory procedures include that a standard must be established for each HAP—a process that cannot occur until the EPA gathers sufficient information about which sources emit the HAP and the emission rate of the HAP. 6 Moreover, CAA section 112(d) requires that the MACT floor be based on the emission level actually achieved by the best performing sources. 7 As part of the MACT determination, we must also evaluate whether options more stringent than the floor are justified under the statute. This task thus requires not only the emissions information of the new HAP from sources, but a review of information related to the potential emission controls and systems of controls that are, or could be, employed to reduce the emissions of the newly listed HAP. Because the EPA did not consider a pollutant that was not a HAP at the time it established existing NESHAP, the statutory process for establishing a standard for the new HAP has not been followed; therefore, the conclusion that existing NESHAP do not regulate a newly listed HAP is consistent with the statute.

In summary, the conclusion that a newly listed HAP is not regulated by any standards promulgated prior to the HAP being listed is consistent with this statutorily required and well-ordered process whereby under CAA section 112(b) the EPA lists a new HAP; CAA section 112(d) requires the EPA to gather information ( e.g., inventories and ranking of best performers) sufficient to establish new or revised standards for the newly listed HAP; and CAA section 112(e) allows for review of the listing when the new or revised emission standards is finalized.

The EPA is requesting comment on whether regulatory text should be included in either the NESHAP General Provisions, 40 CFR part 63, subpart A or in part 63, subpart C, where new HAP are listed, to make it clear that a new HAP is not regulated by a previously promulgated NESHAP until the NESHAP is reviewed and the inclusion of the new HAP is fully evaluated for regulation. A redline/strike out version of proposed regulatory language for the preferred options is included in the docket for this action.

While the emissions of a newly listed HAP are not regulated by NESHAP promulgated before the HAP was listed, the pollutant listed becomes a HAP on the effective date of the listing. On and after the effective date of the listing of a new HAP, it must be included in calculating the facility's actual emissions and PTE for the purposes of determining whether a facility is a major source or area source under Part 63. 8 This is because, under CAA section 112(a)(1) a major source is “any stationary source or group of stationary sources . . . that emits or has the potential to emit considering controls, in the aggregate, 10 tpy or more of any hazardous air pollutant or 25 tpy or more of any combination of hazardous air pollutants.”  9 (Emphasis added)

The inclusion of a new HAP could change a facility's status from an area source to a major source of HAP. If the sole reason for a facility's status change from area to major is the inclusion of the newly listed HAP, the facility would be considered a “major source due to listing” or “MSDL” facility. For the reasons discussed below MSDL facilities, as a result of becoming major on the effective date of the listing of a new HAP, would become subject to any applicable standards covering HAP other than the newly listed HAP in existing major source NESHAP. The EPA specifically requests comments and data on whether, as a result of the listing of a new HAP, there are other sources that are directly impacted by the listing of a new HAP.

All major sources must operate in agreement with a title V operating permit. Consequently, upon listing of a new HAP, MSDL facilities will need to determine what, if any, future permitting action such as application for an initial title V operating permit or permit revision or an application for other type of permit must be taken. For example, a source with an individual PTE limit for HAP, issued in a minor source permit, would have to ensure the supporting data and calculations of actual HAP emissions used to verify the PTE limit account for newly listed HAP emissions. Any required permitting action depends on the individual situation as governed by the permitting authority rules; thus, sources are advised to coordinate these actions with the permitting authority with jurisdiction for the source. Facilities that wish to operate as area sources of HAP and avoid applicability of major source NESHAP requirements could do so at any time and must obtain legally and practically enforceable PTE HAP restrictions below major source levels available under their permitting authority programs. This does not include true area sources, which do not need enforceable PTE limits.

However, if the MSDL facility does not wish to pursue non-major source status, as a major source of HAP they will be subject to the title V operating permit program. Under the title V operating permit program regulations “A timely application for a source applying for a part 70 permit for the first time is one that is submitted within 12 months after the source becomes subject to the permit program or on or before such earlier date as the permitting authority may establish.” 70.5(a)(1)(i). Because permitting authorities can establish different deadlines, MSDL facilities should check with their appropriate title V permitting authority to determine exactly when a timely Part 70 application is required.

The title V regulations are inclusive of all listed HAP; however, some state, local, and tribal title V programs may need to initiate a conforming program revision to update their implementing regulations, e.g., to include newly listed HAP in their HAP definition if their current regulations do not include newly listed HAP. The EPA encourages state, local, and tribal programs to evaluate whether any regulatory changes are needed to their rules to implement newly listed HAP under their approved program and those programs should consult with their respective regional permitting contact for the program if they have questions. State, local, and tribal programs must keep the EPA apprised of regulatory changes they believe are needed to their approved part 70 program. 40 CFR 70.4(i).

Also, the EPA is aware that some permitting authority programs for limiting PTE for categories of similar sources such as general permits, permits by rule, source registrations currently in use for limiting PTE HAP may not be authorized for newly listed HAP and may need revisions. The EPA encourages permitting authorities to review their programs for issuing PTE limits for HAP sources and ensure they have adequate regulatory authority as needed to implement legally and practicably enforceable PTE limits that include newly listed HAP.

All sources that become MSDL facilities will need to evaluate whether any major source NESHAP apply to their operations. In some cases, there may be a transition from an area source NESHAP to a major source NESHAP for the same source category. For example, an MSDL facility may have been subject to the Boiler NESHAP for area sources prior to becoming an MSDL facility but would now become subject to the Boiler NESHAP for major sources.

In addition to a larger number of potentially applicable rules, NESHAP for major sources tend to be more comprehensive than most area source NESHAP, covering more pollutants and emission sources and are generally at least as stringent as area source requirements due to differing requirements under the CAA. 10 The EPA recognizes that there are some unique questions that arise for MSDL facilities when considering the application of a NESHAP that was developed before the MSDL facility became a major source. Two main questions that the EPA evaluated are: (1) what standards apply to MSDL facilities (whether new source or existing source standards apply to MSDL facilities)? and (2) what compliance time should be provided for the MSDL facilities?

Section 112 of the CAA and its implementing regulations distinguish between “new source” and “existing source” for the purpose of both the stringency of the emission standard and the time allowed for compliance with applicable standards. Specifically, CAA section 112(a)(4) defines a new source as a source that commenced construction or reconstruction after the Administrator first proposes regulations under section 112, while CAA section 112(a)(10) defines an existing source as any stationary source other than a new source. The EPA has also explained that the phrase “first proposes” in CAA section 112(a)(4) is somewhat ambiguous such that it could be viewed as referring to different dates in different circumstances. For example, it could be read as the first time the Agency proposes any standards for a source category, the first time the Agency proposes standards under a particular rulemaking record for a source category, or the first time the Agency proposes a particular standard. 11 The determination of whether the standard that applies to a particular source is for “new” or “existing” sources is also important to determining the compliance deadline.

Current rules also address cases where, after the initial promulgation of a NESHAP, an area source makes the decision to increase its emissions such that it becomes a major source. Language is included in the NESHAP General Provisions at 40 CFR 63.6(b)(7) and (c)(5), as well as in many individual NESHAP, to address the consequences of this decision made by an individual facility. In this situation, the EPA has determined that the designation of “new source” and “existing source” should remain defined by the dates given in each individual NESHAP and that does not change when a source reclassifies from area to major source. 12

However, the NESHAP General Provisions do not address the unique situation that arises when a new HAP is listed and an area source becomes a major source solely due to the addition of a new HAP when calculating the source's PTE ( i.e., MSDL facilities). 13 In this action, the EPA is requesting comment on whether to amend the NESHAP General Provisions to specifically address this issue. In addressing this issue, the EPA has considered two alternatives: (1) as done with non-MSDL major sources facilities, determine whether an affected source was new or existing based on each specific NESHAP for MSDL facilities, or (2) designate all affected sources for newly applicable NESHAP at an MSDL facility to be existing affected sources. While the EPA is proposing the second option, i.e., all MSDL facilities should be considered existing sources, both alternatives are discussed below.

Under the first alternative, an MSDL facility would continue to refer to each individual NESHAP and compare the date of construction of an affected source to the date an individual NESHAP was proposed. Under this approach, the determination of “existing source” and “new source” would be the same regardless of when a facility became major and regardless of how a facility became major ( i.e., through their own action or through an EPA action of HAP listing). If the EPA were to finalize this alternative, no changes would be made to 40 CFR part 63, subpart A, § 63.1 (Applicability). However, the EPA could provide a clarifying statement in the current regulatory text with respect to MSDL facilities. The EPA requests comments on whether such clarifying statements would be necessary or helpful.

The EPA has some concerns about the potential impacts for MSDL facilities that would be considered new sources under this first alternative. These concerns center around (1) the lack of notice provided to the MSDL that it is becoming subject to major source requirements, and (2) the action that created the major source requirement was solely from the addition of a new HAP.

A newly listed pollutant becomes a HAP on the effective date of the listing. As defined, a MSDL facility becomes a major source solely due to the EPA action to add a new HAP to the HAP list. This accounting is required because under CAA section 112(a)(1), a facility must include “ any hazardous air pollutant” in calculating the potential to emit for the purposes of determining whether it is a major source under this section of the Act. Thus, on and after the effective date of the listing of a new HAP, a facility must include such HAP in the actual emissions and potential to emit calculations. 14 Within each major source of HAP (defined at the facility level) there could be one or more affected sources, and where there are more than one affected source each one could be either a new or an existing source. Section 112(a)(4) of the CAA defines a new source as a source that commenced construction or reconstruction after the Administrator first proposes regulations under this section, while CAA section 112(a)(10) defines an existing source as any stationary source other than a new source. As previously noted above, “first proposes” could be read to mean the first time the Agency proposes any standards for a source category, the first time the Agency proposes standards under a particular rulemaking record for a source category, or the first time the Agency proposes a particular standard. 15 Here, the EPA's listing of a new HAP is not the proposal of standards under relevant statutory provisions, and as previously explained, existing NESHAP do not regulate a newly listed HAP. It also bears note that there is no specific period for promulgating standards for newly listed HAPs, under CAA section 112(b)(1). Additionally, the CAA distinction between new and existing sources is reasonably understood to be predicated on some basic principles, including that a new source can potentially be held to more stringent compliance requirements than existing ones. In some cases, new source requirements are based on the ability of these sources to design processes to accommodate air pollution control systems. 16 The facility choosing to construct or reconstruct a new affected source can consider the applicable standards and other requirements in making both the technical and economic decisions that surround the evaluation to construct or not construct the emissions unit. Legislative history from the 1990 CAA Amendments also suggests that “the test of section 112(a)(4) as to whether a source is commencing construction or reconstruction is physical and economic, rather than emissions related.” S. Rep. No. 229, 101st Cong. 1st Sess. 1989, 1990 U.S.C.C.A.N. at 3385, 1989 WL 236970. 17

In contrast, a MSDL facility is newly subject to standards that were published long before the HAP listing action that resulted in the facility exceeding the major source threshold. But when the facility was being constructed as an area source, the source had no reason to contemplate the applicability of major source NESHAP. 18 As discussed above, notice of the requirements at the time that the facility is constructed or reconstructed is a key distinction between “new” and “existing” emission standards under CAA section 112 and the NESHAP regulations. This is because CAA section 112(a)(4) defines a new source as a source that commenced construction or reconstruction after the Administrator proposes regulations for the applicable source category. The notice of a proposed major source NESHAP allows a source to consider the proposed standard when considering the design of or constructing a potentially new affected emissions unit. Having this notice allows the source to alter the design to eliminate the emissions of the regulated HAP or alter the design of the emissions unit to ensure that when the emission unit commences operation it can meet the “new” source limit. This is because a MSDL facility that was already operating when the EPA lists a new HAP is not aware at the time of construction or reconstruction that it would subsequently be subject to a major source NESHAP, since no standard applied at that time. Therefore, it could be more appropriate to treat such source as an existing source.

Moreover, a listing action is not subject to the robust public notice and comment requirements provided in CAA section 307(d). 19 The EPA acknowledges that the Agency could provide some degree of public notice before a new HAP is listed, with one or more documents in the Federal Register because “in most instances, even where there is no statutory requirement to take comment, the EPA solicits public comment on actions it is contemplating.”  20 But these documents would typically address the substantive requirements for listing a substance as a HAP and would likely provide little or no information on sources that would be impacted by the listing decision. 21 Additionally, such notices would also have been published years after a facility constructed or reconstructed their affected source at an area source facility. Further, where the Agency lists a HAP in response to a petition, the Agency would be unable to impose compliance obligations for that HAP considering that not all affected sources were involved in the listing action and as such would be precluded from challenging the listing decision as specified by section 112(e)(4) until the Agency promulgates standards for the newly listed HAP. 22

Further, not only is a MSDL facility not able to plan accordingly to meet the “new” source standard, but there is also a possibility that the source, already in operation, cannot, as a technological matter, comply with the standard for new sources. For example, during the development of the NESHAP for Polyvinyl Chloride and Copolymers Production, the EPA acknowledged that due to the stringency difference between the new source and existing source standards that it might not be technically possible for an existing source to meet the new source standard. In the final rule the EPA modified the definition of existing source to ensure that existing sources were not subject to the new source standard, which was impossible for them to meet. See 77 FR 22848 (April 17, 2002).

Finally, unlike the situation where an area source becomes a major source (by increasing its HAP emissions or potential to emit), a MSDL facility becomes a major source due to EPA's listing of a new HAP. As also previously explained, a MSDL facility has no direct notice as to the applicability of the major source NESHAP and more importantly as to the applicability of any “new” source standard for major sources as contemplated under CAA section 112(a)(4). Therefore, the MSDL facility cannot develop plans to comply with the standard to which it was not subject before it becomes applicable and could potentially be in non-compliance immediately upon the effective date of the listing of the new HAP in the absence of any changes proposed in this action. This would mean that some rules, while not applicable to the facility when the rule was proposed, now apply due to the EPA listing action and through no action of the facility. Moreover, it is not the promulgation of emissions standards under relevant statutory provisions and precedent for the newly listed HAP that has resulted in a status change. Rather, it is the HAP listing itself. This would mean that some rules, while not applicable to the facility when the rule was proposed, now apply due to the EPA listing action and through no action of the facility.

These concerns lead the EPA to also favor the alternative option where all newly impacted affected sources at MSDL facilities would be treated as existing sources.

Under this preferred option, the EPA would treat affected sources at MSDL facilities as existing affected sources because affected sources at MSDL facilities that might otherwise be considered “new” under a NESHAP-specific evaluation are not new sources as contemplated under CAA section 112(a)(4) in the circumstance where the source becomes a major source due to EPA's listing of a new HAP. First, the increase in the facilities' emissions or potential to emit that caused the facility to become a major source was caused solely by an EPA action to list a HAP and not based on any action by the facility to change its method of operation, add new equipment, or change any material throughput. Second, the facility was already operating the affected sources when the EPA's listing action, which is not the promulgation of emissions standards under relevant statutory provisions and precedent, resulted in a status change. 23 When considering the construction for these sources, the facility may have evaluated applicable requirements that would apply to them as a non-major source. Third, these sources were not afforded advance notice to tailor construction plans to meet the new source requirements for major sources, but instead would be required to develop a compliance strategy on already-constructed emission sources.

In conclusion, the EPA has considered both options discussed above and is proposing that all affected facilities at MSDL facilities that become subject to major source requirements solely due to the listing of a new HAP should be considered existing sources. Under this option, regulatory language would be added to 40 CFR part 63, subpart A, § 63.1(c) applicability requirements and a definition of MSDL would be added to § 63.2. The EPA requests comments on all aspects of both alternatives presented above, as well as on the proposed selection of treating all MSDL facilities as existing sources. All significant comments received on issues related to effects of HAP listing on MSDL facilities during the public comment period will be considered.

When an MSDL facility triggers existing source NESHAP requirements under our proposed approach described in section II.C.3., there is an additional question of the appropriate compliance date. Because the NESHAP of concern have already been promulgated, typically many years in the past, it is likely that most of the compliance dates will have passed for both existing and new affected sources. The EPA understands that a past compliance date would indicate that a facility would need to be in compliance on the day the NESHAP is triggered; in this case, the day the HAP listing is effective. The EPA does not view this outcome as necessarily the most practical conclusion flowing from the overall intent and reading of CAA section 112 as well as rulemakings that implement CAA section 112. As this outcome can create significant, immediate compliance issues for facilities that have already been constructed, the EPA evaluated several options for establishing compliance dates for MSDL facilities.

The General Provisions, 40 CFR part 63, subpart A, include requirements for facilities that increase their emissions (or potential to emit) to major source levels. The provision in 40 CFR 63.6 (b)(7) provides that new affected sources must comply with all requirements of a standard at start-up of the source. 24 On the other hand, for existing sources, the provision in 40 CFR 63.6(c)(5) provides that a facility has the amount of time listed in a specific NESHAP for sources increasing emissions to major or “equivalent to the compliance period specified in the relevant standard for existing sources in existence at the time the standard becomes effective.”  25 Several NESHAP include the provisions mentioned in 40 CFR 63.6(c)(5) for when an area source becomes a major source. Most, but not all, of these provisions tend to treat new sources very differently from existing sources, by providing time to come into compliance for existing affected sources that become major sources, but typically requiring immediate compliance for new sources that become major sources.

The EPA reviewed these provisions for potential applicability to MSDL facility compliance times. The EPA determined that the current language in 40 CFR 63.6(b)(7), 63.6(c)(5) and the area- to- major language in individual NESHAP were not developed with MSDL facilities in mind and are therefore not applicable to MSDL facilities. Therefore, the EPA is proposing that the NESHAP General Provisions at 40 CFR 63.6(d) be revised to address the compliance timing for MSDL facilities. As individual NESHAP are reviewed, the EPA can assess whether additional provisions addressing MSDL facilities are warranted. Any NESHAP-specific MSDL provision would supersede provisions promulgated in the General Provisions.

The EPA is considering four possible approaches for establishing compliance schedules for MSDL facilities that trigger major source NESHAP: (a) Maintain the compliance deadlines in individual NESHAP, even past dates, and require all facilities to work with their regulatory authority to come into compliance; (b) Establish a compliance deadline consistent with time provided to existing sources under the applicable individual NESHAP; (c) Provide a single compliance timeline for MSDL facilities that have become subject to major source requirements, regardless of the times provided in the individual NESHAP; and (d) Provide compliance deadlines based on the types of emission limitations or requirements.

Each of these options is discussed in more detail below. While the EPA is proposing to provide compliance deadlines based on the types of emission limitations or requirements (option d in this list), the EPA requests comments on each of the following options and may select any of these options in the final rule, depending on comments received and the EPA's final analyses.

Under this alternative, the EPA would make no changes to the NESHAP General Provisions (40 CFR part 63, subpart A) and would instead allow compliance dates in the individual NESHAP to remain the applicable compliance dates. Under this approach an MSDL facility would likely be out of compliance with any major source NESHAP that applies on the effective date of the listing of a new HAP. This is because the majority of major source NESHAP have compliance dates that pre-date the effective date of the newly listed HAP.

This approach would likely lead to the earliest requirements for emission reductions by MSDL facilities, as they may alter their operations or work practices to either minimize emissions or work with their regulatory authority to address their non-compliance status. Emission reduction will not include direct emission control requirements for the newly listed HAP, as the EPA must first promulgate standards for such HAP. It would, however, result in emissions reductions of other regulated HAP as the facility complies with the applicable NESHAP. As previously discussed, above, this approach is predicated on the assumption that facilities are aware of the EPA actions that may impact their CAA compliance status since pre-notice is provided by the EPA's prior Federal Register documents on potential listings. 26

Under this alternative, the EPA is considering whether the compliance time provided to MSDL sources for a specific NESHAP should be equivalent to the initial time provided to existing affected sources in that NESHAP. This approach would acknowledge the source category-specific evaluation of appropriate compliance time for the specific rule.

The EPA reviewed numerous existing NESHAP and determined that the majority of NESHAP provided three years for existing sources to come into compliance with the standards. The specific justifications for allowing three years for existing sources to comply varied from NESHAP to NESHAP but were all predicated on a determination that three years was as expeditious as possible for those facilities.

This option would call for the EPA to include in the NESHAP General Provisions regulatory language similar to existing language at 40 CFR 63.6(c)(5). The regulatory language in the NESHAP General Provisions would provide MSDL facilities a “period of time to comply with the relevant emission standard that is equivalent to the compliance period specified in the relevant standard for existing sources” and would apply in the absence of any MSDL-specific language in individual NESHAP.”

It should be noted that, at present, there are no MSDL-specific provisions in any individual NESHAP. Language currently in the General Provisions and NESHAP refers only to area sources that become major sources through a facility's own action that causes an increase in emissions or in their potential to emit. If no MSDL-specific language is included in a specific NESHAP, then the time provided by the new MSDL language in the General Provision will dictate the requirements.

As discussed in section II.C.3. (What Standards Apply to MSDL Facilities?), the EPA is proposing to define all affected sources at MSDL facilities as existing affected sources for the purposes of determining the applicable emission standards. If the EPA were to instead promulgate the option that would require some sources to meet the new source emission limits, the EPA is still proposing to provide time for all MSDL facilities to come into compliance under this option. In this proposal, the EPA is considering whether providing some amount of compliance time—as typically done for existing sources—is appropriate for all MSDL sources. Specifically, under this option, all MSDL sources (including new sources) would be provided a time period equivalent to the time period provided to existing affected sources in the specific NESHAP.

As discussed below, this is not the option that the EPA is proposing because we believe the final option in this list best balances the EPA's desire to obtain emission reductions as soon as practicable, but also allow time required for a facility to effectively and efficiently come into compliance with potentially multiple requirements; however, the EPA requests comments and supporting information on this option.

Under this alternative, the EPA is considering whether a single compliance schedule should be provided for any new requirements at an MSDL facility when a new HAP is listed. As discussed above, the EPA conducted a review of current NESHAP and determined that the predominant compliance time provided to any impacted existing affected source is 3 years after a rule is promulgated. Based on this review, the EPA is considering whether to provide up to three years for all MSDL facilities to come into compliance with all newly applicable requirements.

The EPA could consider a set deadline that is less than three years. In many instances, the EPA considered the availability of resources in assessing the amount of time needed to comply with a NESHAP. These resources could include the lack of enough vendors to supply the expected air pollution control devices in less than three years. The EPA does not expect that a significant number of sources that would draw on the same resources ( e.g., the same air pollution control vendor) will become MSDL sources and solicits comment on whether this assumption is reasonable. To the extent that up to three years was provided in a specific NESHAP to account for the resource drain, it could be reasonable to consider a different set time period under this requirement for MSDL affected sources.

The EPA is aware that an MSDL facility has the potential to trigger more than one NESHAP and associated requirements, and these different NESHAP could provide for different compliance time periods. The EPA is considering whether providing a single date would enable a facility to develop a comprehensive strategy to comply with all newly applicable major source NESHAP requirements. A single date would also provide absolute clarity to all stakeholders as to when compliance was required, regardless of the NESHAP subpart that becomes applicable to them. Under this option, the EPA could select the longest time period allowed in the various regulations ( i.e., 3 years after promulgation date), the shortest time period ( i.e., immediate compliance required for new sources), or some time in between. The EPA requests comments on the potential for any of these time periods.

The EPA recognizes that this option would allow some facilities more time than was allowed under the original NESHAP. However, this option recognizes that a facility may need to develop a compliance strategy for multiple NESHAP that may involve different types of compliance requirements. For example, a facility may need to design, order, install and activate an air pollution control device to comply with one NESHAP, and may need to implement operational changes, or work practice requirements, for a different NESHAP. Providing the facility with the ability to strategize their overall compliance approach might be significantly more efficient than requiring separate dates for simultaneously triggered requirements.

This is not the option we are proposing in this document. While this approach may be reasonable when considering a facility could have multiple new requirements, the EPA believes that the chosen option best balances a reasonable time for facilities and the need to not unnecessarily delay the implementation of certain practices or technologies that would more quickly reduce emissions and associated risks. However, the EPA requests comments on this option, including whether it should be the selected option and whether a different compliance timeframe should be selected, e.g., within 2 years or within 18 months under this option. In addition, we ask for comment on whether the EPA, if it were to promulgate this option, should include additional conditions. For example, the EPA could provide an overall compliance timeframe of “no later than 3 years,” but require that a MSDL facility demonstrate that any compliance date after 2 years would have to be justified to and approved by the Administrator (or delegated authority), unless compliance for a specific requirement required the installation of equipment, such as air pollution control devices.

If the EPA were to finalize regulatory text that included some MSDL facilities being required to meet new source requirements, the EPA might still provide that all facilities be provided with the identical time allowance for compliance. The EPA solicits comments on this conclusion, as well as comments on alternatives that should be considered.

As discussed above, the majority of existing NESHAP have provided the 3 years to comply, as allowed under CAA section 112(i)(3)(A). However, the EPA also has a long-standing history of providing shorter periods to ensure that the compliance requirements are consistent with statutory requirements. These shorter compliance periods are based, in part, on the type of emission standard. Where the emission standard is a work practice or does not require installation of add-on emission control device, the EPA has, consistent with CAA section 112(i)(3)(A) that requires compliance “as expeditiously as practicable,” required compliance in less than 3 years. For example, in establishing the 1995 NESHAP for Chromium Emissions from Hard and Decorative Chromium Electroplating and Chromium Anodizing Tanks, the EPA stated, “The EPA believes that the 1-year timeframe for decorative chromium electroplaters is sufficient because, based on the EPA's survey data, 80 percent of existing sources already use fume suppressants and very few will need to install add-on air pollution control devices.” (60 FR 4948; January 25, 1995). In the 1994 NESHAP for Magnetic Tape Manufacturing Operations, the EPA provided 2 years to comply unless a new control device was needed. (December 15, 1994). In the 2004 Iron and Steel NESHAP the EPA required existing iron and steel foundries to comply with the scrap selection and inspection program within 1 year of the effective date of the final rule because no controls were required, and emission reductions would be achieved as expeditiously as practicable (69 FR 21906; April 22, 2004).

Based on the EPA's history of establishing compliance deadlines for existing sources based on the type of emission standard, the EPA is proposing that the compliance deadline for MSDL facilities should be based on the type of emission standard applicable to the facility. For example, if the applicable emission standard requires the installation of add-on controls the compliance deadline would be longer ( e.g., a 2-year compliance deadline starting from the date the source becomes major due to the listing of a new HAP) as compared with an emission standard that does not require the addition of controls ( e.g., 1 year from the date the source becomes major due to listing of a new HAP if the emission standard is a work practice). The EPA is requesting comment on the appropriate compliance deadline ( e.g., from 0 up to 3 years) depending on the type of emission standard. The EPA acknowledges that the CAA allows title V permitting authorities to grant sources, on a case-by-case basis, extensions to the compliance time of up to 1 year if such time is needed for the installation of controls. See CAA section 112(i)(4)(i)(A). Permitting authorities are already familiar with, and in many cases have experience with, applying the 1-year extension authority under CAA section 112(i)(4)(A) as the provision applies to all NESHAP. This option will remain available to MSDL facilities.

In addition to the long-standing compliance deadline differentiation based on the type of emission standard, the EPA believes that establishing shorter compliance deadlines for MSDL facilities is reasonable because some of the reasons for providing the full 3 years for existing sources under initial NESHAP will not exist for MSDL facilities. For example, during the development of the NESHAP for the Industrial, Commercial, and Institutional Boilers and Process Heaters, commenters expressed concern about the compliance deadline for existing sources stating that a “large number of sources that will be competing for the needed resources and materials from engineering consultants, permitting authorities, equipment vendors, construction contractors, financial institutions, and other critical suppliers.” (78 FR 7138; January 31, 2013). The EPA does not expect the number of MSDL facilities following the listing of a new HAP to be similar to the overall number of facilities subject to a NESHAP on its initial promulgation and therefore the resource availability concerns are not expected.

Another factor that supported providing the full 3-year compliance deadline for initial NESHAP was the learning curve associated with implementing standards or installing new controls to an existing process. In contrast, MSDL facilities, by definition, only deal with facilities triggering already existing NESHAP and some of these NESHAP were promulgated over 20 years ago. Therefore, the industry and equipment vendors have already experienced, dealt with, and solved many of the initial application issues associated with applying a NESHAP standard to a source category for the first time. The years of experience gained at applying standards and installing controls within a source category should reduce the time needed to apply the same technology today at MSDL facilities.

The EPA is proposing to provide compliance deadlines based on the types of emission limitations or requirements for MSDL facilities because it provides the optimum balance between acknowledging that some time is needed to develop and implement control strategies for newly applicable NESHAP requirements and the desire to not unnecessarily delay compliance and the resulting emission reductions. The EPA requests comments on the use of this approach and specifically the proposed compliance deadlines of 2 years for facilities that install add-on controls and 1 year for all other standards. The EPA is clarifying that no compliance deadline extension will be provided for NESHAP that have identical requirements for area and major sources, because these facilities would already be complying with the NESHAP before becoming an MSDL facility.

The EPA recognizes that under any of the last three options, there could be situations where there is a possible temporal gap in regulatory coverage for MSDL facilities that were, prior to their MSDL status, subject to an area source NESHAP. For example, a facility that was subject to area source NESHAP prior to their MSDL status might not be subject to any emissions standard during a compliance deadline extension allowed for the newly applicable major source NESHAP.

The EPA is taking comment on what standard should or can apply during this period if a compliance deadline extension is provided. For example, one option the EPA is considering is whether a MSDL facility might be required, either by their existing permit or by a requirement added to this rulemaking, to continue to comply with any pre-existing areas source NESHAP until they are in compliance with newly applicable major source NESHAP. This gap-filling approach would prevent any inadvertent increase in emissions that could occur during this compliance extension period.

The EPA also requests comment and specific examples of how this would occur and whether existing area source operating permits would remain enforceable until a new major source permit is issued.

The EPA evaluated whether any additional data should be required from facilities when a new HAP is listed. Without any changes, there are two notifications that would be required under existing NESHAP requirements. First, any MSDL facility that requires a title V operating permit would need to apply for the permit within 12 months of becoming subject to the operating permit requirement. This application would likely be required to include substantive data about the newly listed HAP, including a description of the emission sources, the quantity of emissions, and whether any other requirements were triggered by becoming a major source. Presumably this would include the identification of any major source NESHAP that is now applicable to the facility. As with other title V operating permit requirements, the EPA is not proposing to make any changes to the existing language.

Second, an MSDL facility that triggers one or more major source NESHAP would become subject to the requirement to submit an initial notification under each newly applicable NESHAP. These requirements are specified in each NESHAP and in the General Provisions to part 63, including the details of the information that must be included and where the notification must be sent. Typically, these notifications are required within 180 days of becoming subject to a NESHAP, so would be required before the facility is required to submit a title V operating permit application, if also required. A permit application would typically be allowed to serve as the initial notification, if it is submitted within the timeframe required by the NESHAP and includes all of the information required by the specific rule. In the absence of requirements listed in a specific NESHAP, the initial notification content requirements are dictated by the provision in 40 CFR 63.9(b). The EPA reviewed the contents of the initial notification requirements under 40 CFR 63.9(b) and determined that the content for MSDL notifications should be virtually identical to other notifications but to provide clarity it warrants a required indication that the facility is submitting the notification because it is an MSDL facility.

To provide this clarity, the EPA is proposing that MSDL facilities include in their notification a statement that the facility is a major source due to HAP listing (MSDL) if the sole reason that the facility became major and triggered NESHAP applicability is the addition of a new HAP to 40 CFR subpart C, § 63.64. A red-lined copy of the General Provisions, including the proposed notification amendments for MSDL facilities is included in the docket for review. See OAR-HQ-OAR-2022-0441.

The EPA also considered whether additional information should be required from other facilities that emit a newly listed HAP but are already subject to major source NESHAP requirements and are not required to submit either of the above documents when a new HAP is listed. Additional information on HAP usage, HAP emissions, potential controls, and other inventory information could aid in the EPA's development of the best strategy for regulating a new HAP. However, this benefit needs to be weighed against the potential burden for developing and submitting this information from facilities that emit the newly listed HAP, especially as the facilities could include small businesses. The EPA solicits comments on whether additional notifications should be required for facilities that emit a newly listed HAP but are not triggered to submit an initial notification upon the listing. For example, this proposal solicits comment on whether a notification should be required from any facility that emits the newly listed HAP over some de minimis level. The EPA also asks whether additional public notification requirements should be included to provide better communication of public health risks by facilities that emit a newly listed HAP or if other mechanisms already exist, or will exist, to serve this function. If notice is required, we request comment on how best to establish a de minimis level, if one is recommended, and the basis for the proposed level.

In addition to soliciting comments on the topics discussed earlier in this document, including the applicability of existing source MACT requirements for MSDLs and the compliance time allowed for MSDLs, the EPA additionally requests comments and information on the following questions.

The EPA has developed a redline-strikeout version of sections of 40 CFR part 63, subparts A and C, that would be revised under the proposed changes listed in this document. The draft regulatory language for the recommended options is included for review in the docket for this rule. See EPA Docket EPA-HQ-OAR-2022-0441. The EPA is requesting comments on this language.

While the focus of this proposed rulemaking is on the immediate impacts to MSDL facilities, the EPA acknowledges that there are other steps that must be taken to fully address a newly listed HAP under CAA section 112 regulatory framework. Foremost among these steps is the regulation and the resulting reduction in emissions of a newly listed HAP. However, as discussed above, existing NESHAP do not regulate the newly listed HAP unless and until the NESHAP is revised and an emission standard is established following the requirements of CAA section 112(d).

This proposed rulemaking addresses only one part of the overall program to incorporate a new HAP into CAA section 112 regulatory framework. Future steps that are not addressed in this rulemaking would likely include addressing issues such as how best to develop an accurate emissions inventory for the new HAP, identify the sources that emit the new HAP, and either revising existing NESHAP standards or establishing new standards, as necessary, to incorporate and thereby reduce the emissions of the new HAP.

The EPA is seeking comments on how best to obtain information about which sources and source categories emit a newly listed HAP, how much these facilities emit, how best to inform the populations surrounding these facilities that the facilities that emit a newly listed HAP, and how to incorporate meaningful engagement with affected communities in future actions.

The EPA seeks comment on how to best provide outreach to entities that could be subject to requirements as an MSDL facility because of an addition to the HAP list.

Additional information about these statutes and Executive Orders can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

This action is a significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review under Executive Order 12866, as amended by Executive Order 14094. Any changes made in response to reviewer recommendations have been documented in the docket.

This action does not impose an information collection burden under the PRA.

I certify that this action will not have a significant economic impact on a substantial number of small entities. This proposed rule will not impose any requirements on small entities. Specifically, this action proposes a regulatory requirement addressing requirements for when a new HAP is added to the CAA section 112 HAP list; any burden from the addition of a new HAP is rightfully considered under the individual NESHAP that is triggered and not under the actions in this document.

This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector.

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the Federal government and the states, or on the distribution of power and responsibilities among the various levels of government. This action does not impose any requirements on facilities or other parties.

This action proposes amendments to General Provisions that provide requirements for when a new HAP is added to the CAA section 112 HAP list.

This action does not have tribal implications as specified in Executive Order 13175. It would not impose substantial direct compliance costs on tribal governments that have designated facilities located in their area of Indian country. This action also will not have substantial direct costs or impacts 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, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to the action.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

This action is not a “significant energy action” because it will not have a significant adverse effect on the supply, distribution or use of energy. Specifically, this action proposes amendments to General Provisions to provide requirements for when a new HAP is added to the CAA section 112 HAP list.

This rulemaking does not involve technical standards.

Executive Order 12898 establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse health or environmental effects of their programs, policies and activities on minority populations and low-income populations in the U.S. This rule would not increase the level of environmental protection for all affected populations, and it also will not have any disproportionately high and adverse health or environmental effects on any population, including any minority, or low-income population. Specifically, this action proposes amendments to NESHAP General Provisions to provide requirements for when a new HAP is added to the CAA section 112 HAP list. These proposed changes would aid in the implementation of updated and new NESHAP that will occur after a new HAP has been listed.

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 an endangered species within the foreseeable future throughout all or a significant portion of its range). If we determine that a species warrants listing, we must list the species promptly and designate the species' critical habitat to the maximum extent prudent and determinable. We have determined that the Quitobaquito tryonia meets the definition of an endangered species; therefore, we are proposing to list it as such and proposing a designation of its critical habitat. Both listing a species as an endangered or threatened species and making a critical habitat determination can be completed only by issuing a rule through the Administrative Procedure Act rulemaking process (5 U.S.C. 551 et seq. ).

What this document does. We propose to list the Quitobaquito tryonia as an endangered species under the Act, and we propose the designation of critical habitat 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 Quitobaquito tryonia is endangered due to the following threats: decline in spring flow resulting from groundwater pumping and ongoing drought; effects of climate change; and spring modification.

Section 4(a)(3) of the Act requires the Secretary of the Interior (Secretary), to the maximum extent prudent and determinable, to designate critical habitat concurrent with listing. 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 protection; 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.

We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other governmental agencies, Native American Tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning:

(1) The species' biology, range, and population trends, including:

(a) Biological or ecological requirements of the species, including habitat requirements for feeding, breeding, and sheltering;

(b) Genetics and taxonomy;

(c) Historical and current range, including distribution patterns and the locations of any additional populations of this species;

(d) Historical and current population levels, and current and projected trends; and

(e) Past and ongoing conservation measures for the species, its habitat, or both.

(2) Threats and conservation actions affecting the species, including:

(a) Factors that may be affecting the continued existence of the species, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors;

(b) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species; and

(c) Existing regulations or conservation actions that may be addressing threats to this species.

(3) Additional information concerning the historical and current status of this species.

(4) Specific information on:

(a) The amount and distribution of Quitobaquito tryonia habitat;

(b) Any additional areas occurring within the range of the species that should be included in the designation because they (i) are occupied at the time of listing and contain the physical or biological features that are essential to the conservation of the species and that may require special management considerations or protection, or (ii) are unoccupied at the time of listing and are essential for the conservation of the species;

(c) Special management considerations or protection that may be needed in critical habitat areas we are proposing, including managing for the potential effects of climate change; and

(d) Whether occupied areas are adequate for the conservation of the species, as this will help us evaluate the potential to include areas not occupied at the time of listing. Additionally, please provide specific information regarding whether or not unoccupied areas would, with reasonable certainty, contribute to the conservation of the species and contain at least one physical or biological feature essential to the conservation of the species. We also seek comments or information regarding whether areas not occupied at the time of listing qualify as habitat for the species.

(5) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.

(6) Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation, and the related benefits of including or excluding specific areas.

(7) Information on the extent to which the description of probable economic impacts in the draft economic analysis is a reasonable estimate of the likely economic impacts.

(8) Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act (16 U.S.C. 1531 et seq. ), and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act. If you think we should exclude any areas, please provide information supporting a benefit of exclusion.

(9) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.

Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.

Please note that submissions merely stating support for, or opposition to, the action under consideration without providing supporting information, although noted, do not provide substantial information necessary to support a determination. Section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or a threatened species must be made solely on the basis of the best scientific and commercial data available, and section 4(b)(2) of the Act directs that the Secretary shall designate critical habitat on the basis of the best scientific data available.

You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES . We request that you send comments only by the methods described in ADDRESSES .

If you submit information via https://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the website. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on https://www.regulations.gov.

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on https://www.regulations.gov.

Our final determination may differ from this proposal because we will consider all comments we receive during the comment period as well as any information that may become available after this proposal. Based on the new information we receive (and, if relevant, any comments on that new information), we may conclude that the species is threatened instead of endangered, or we may conclude that the species does not warrant listing as either an endangered species or a threatened species. For critical habitat, our final designation may not include all areas proposed, may include some additional areas that meet the definition of critical habitat, or may exclude some areas if we find the benefits of exclusion outweigh the benefits of inclusion and exclusion will not result in the extinction of the species. In our final rule, we will clearly explain our rationale and the basis for our final decision, including why we made changes, if any, that differ from this proposal.

Section 4(b)(5) of the Act provides for a public hearing on this proposal, if requested. Requests must be received by the date specified in DATES . Such requests must be sent to the address shown in FOR FURTHER INFORMATION CONTACT . We will schedule a public hearing on this proposal, if requested, and announce the date, time, and place of the hearing, as well as how to obtain reasonable accommodations, in the Federal Register and local newspapers at least 15 days before the hearing. We may hold the public hearing in person or virtually via webinar. We will announce any public hearing on our website, in addition to the Federal Register . The use of virtual public hearings is consistent with our regulations at 50 CFR 424.16(c)(3).

On June 25, 2007, we received a petition dated June 18, 2007, from Forest Guardians (now WildEarth Guardians) to list 475 species, including the Quitobaquito tryonia, in the southwestern United States as endangered or threatened species and to designate critical habitat under the Act. On December 16, 2009, we published a partial 90-day finding (74 FR 66866) on 192 species from that petition; in that document, we announced that the petition presented substantial information that the Quitobaquito tryonia may be warranted for listing.

A species status assessment (SSA) team prepared an SSA report for the Quitobaquito tryonia. 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 Quitobaquito tryonia SSA report. We sent the SSA report to four independent peer reviewers and received two responses. We also sent the SSA report to six partner reviewers and received three responses. Results of this structured peer review process can be found at https://www.regulations.gov. In preparing this proposed rule, we incorporated the results of these reviews, as appropriate, into the SSA report, which is the foundation for this proposed rule.

As discussed in Peer Review above, we received comments from two peer reviewers on the draft SSA report. We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding the information contained in the SSA report. The peer reviewers generally concurred with our methods and conclusions, and provided additional information, clarifications, and suggestions that we incorporated into an updated version of the SSA report. One reviewer requested that we analyze water quality quantitatively in the report. We clarified that although some water quality parameters have been recorded in the springs that the Quitobaquito tryonia inhabits, we do not know the full suite of parameters, nor the thresholds to which the species is sensitive. Otherwise, no substantive changes to our analysis and conclusions within the SSA report were deemed necessary, and peer reviewer comments are addressed in version 1.1 of the SSA report (Service 2022, entire).

The Quitobaquito tryonia is a small freshwater snail with a conical shell that measures 0.05 to 0.08 inches (in) (1.4 to 2.1 millimeters (mm)) in length. The shell has 3.5 to 4.5 highly convex whorls with deep sutures (or indentations where whorls meet) and is typically clear, gray, or black in color. Quitobaquito tryonia is dioecious (Hershler 2001, pp. 3-5), meaning male and female organs occur in separate individuals. The lifespan of springsnails is thought to be annual (Lysne et al. 2007, p. 649; Brown et al. 2008, p. 487), with estimates of longevity ranging from 9 to 15 months (Pennak 1989, p. 552).

Quitobaquito tryonia is likely an herbivore or detritivore that primarily grazes on periphyton (a mixture of algae, bacteria, detritus, fungi, diatoms, and protozoa that grow on exposed surfaces (Lysne et al. 2007, p. 649)) and aquatic plants (Pyron and Brown 2015, pp. 386, 401). The species can more easily consume periphyton, which is also more nutrient-rich than aquatic plants; however, if periphyton availability is limited or depleted, Quitobaquito tryonia will consume aquatic plants (Pyron and Brown 2015, p. 399).

Historically, Quitobaquito tryonia is known from three proximal springs or spring complexes, Quitobaquito Springs, Williams Spring, and Burro Spring, that lie near the international border of the United States (Arizona) and Mexico; these springs/spring complexes are in the southwestern corner of Organ Pipe Cactus National Monument, which is managed by the National Park Service (NPS), in Pima County, Arizona (Hershler and Landye 1988, p. 50). Quitobaquito tryonia was first collected in 1963, from Quitobaquito Springs (Hershler and Landye 1988, p. 50; Rosen et al. 2010, p. 8). The species has been extirpated from Williams and Burro Springs but remains extant at Quitobaquito Springs. The species is found in the 200-meter (m) (700-foot (ft)) spring channel of Quitobaquito Springs, which is a human-made, concrete-lined channel with riffle, run, and pool habitat types that was built as part of a restoration project in 1989. The channel is fed by two springs, the Northeast and Southwest springs. The NPS regularly manages vegetation along the stream channel to reduce submerged and emergent vegetation, creating a mosaic of available habitats and ensuring water can flow freely through the channel.

The Quitobaquito tryonia was recently detected at a fourth location in October 2020, a seep (Hillside Seep #2) located approximately 100 m (328 ft) southeast of the main channel at Quitobaquito Springs. Hillside Seep #2 is located to the southeast and slightly upslope from the Southwest Spring at Quitobaquito. The seep is not hydrologically connected overland to the concrete-lined spring channel at Quitobaquito Springs and, for the purposes of this analysis, is being considered a separate population. While there are no surface water connections between the seep and spring channel, it is likely that they have the same groundwater source based on proximity and local geology. Quitobaquito tryonia is the only species in the Cochliopidae family of small freshwater snails that occurs in the spring complex. There are six additional seeps (including Hillside Seep #1) that have been surveyed in the area near Quitobaquito Springs that have low flow and possible springsnail habitat, but no Quitobaquito tryonia were found (Sorensen 2021, p. 10). The presence of dense vegetation precluded searching all possible habitat, so it is possible that Quitobaquito tryonia individuals are present in the inaccessible portions of these seeps. Based on the hydrology and geology of the area, additional undocumented seeps may exist in the area of Quitobaquito Springs that have not been investigated for presence of Quitobaquito tryonia.

Tohono O'odham and Hia Ced O'odham farmers inhabited the area including the Quitobaquito Springs complex for several centuries prior to the arrival of Europeans in the 1600s, and the spring water was used for irrigation (Bennett and Kunzmann 1989, p. 1; Nabhan et al. 1982, pp. 124-126). Large-scale water management of the springs likely began in 1863, when Euro-American settlers excavated Quitobaquito Pond and built a dam to hold water diverted from the two main spring sources (Bennett and Kunzmann 1989, p. 15; Pearson and Conner 2000, p. 392). Irrigation ditches were constructed from the pond for agricultural fields to the south and west. In 1915-1919, grazing pressure intensified with the establishment of a large cattle operation and ranch that encompassed all of present-day Organ Pipe Cactus National Monument (Bennett and Kunzmann 1989, pp. 21-22).

The Quitobaquito tryonia requires perennial spring flow, adequate water quality, and substrates or aquatic vegetation of sufficient type and quantity. Brooded young, juveniles, and adults all need adequate spring flow and water quality to meet their resource functions, which include feeding, growth, survival, and breeding (Hershler 1984, p. 68; Hershler and Sada 2002, p. 256; Martinez and Thome 2006, p. 14). Specifically, spring flow must be perennial to prevent desiccation (drying out) of individuals and to maintain stable water quality parameters. The Quitobaquito tryonia also needs suitable substrate and aquatic vegetation for shelter and periphyton growth. While Tryonia spp. are found on a variety of substrate types, there is some evidence that coarse substrates may promote higher abundances of Quitobaquito tryonia (Bogan 2018, entire; Williams and Sorensen 2019, p. 2).

For a thorough review of the taxonomy, life history, and ecology of the Quitobaquito tryonia, please refer to the SSA report (Service 2022, pp. 4-7).

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 species' expected response and the effects of the threats—in light of those actions and conditions that will ameliorate the threats—on an individual, population, and species level. We evaluate each threat and its expected effects on the species, then analyze the cumulative effect of all of the threats on the species as a whole. We also consider the cumulative effect of the threats in light of those actions and conditions that will have positive effects on the species, such as any existing regulatory mechanisms or conservation efforts. The Secretary determines whether the species meets the definition of an “endangered species” or a “threatened species” only after conducting this cumulative analysis and describing the expected effect on the species 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 we 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 proposed for listing 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 Quitobaquito tryonia viability, we used the three conservation biology principles of resiliency, redundancy, and representation (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency is the ability of the species to withstand environmental and demographic stochasticity (for example, wet or dry, warm or cold years), redundancy is the ability of the species to withstand catastrophic events (for example, droughts, large pollution events), and representation is the ability of the species to adapt to both near-term and long-term changes in its physical and biological environment (for example, climate conditions, pathogens). In general, species viability will increase with increases in resiliency, redundancy, and representation (Smith et al. 2018, p. 306). Using these principles, we identified the species' ecological requirements for survival and reproduction at the individual, population, and species levels, and described the beneficial and risk factors influencing the species' viability.

The SSA process can be categorized into three sequential stages. During the first stage, we evaluated the individual species' life-history needs. The next stage involved an assessment of the historical and current condition of the species' demographics and habitat characteristics, including an explanation of how the species arrived at its current condition. The final stage of the SSA involved making predictions about the species' responses to positive and negative environmental and anthropogenic influences. Throughout all of these stages, we used the best available information to characterize viability as the ability of a species to sustain populations in the wild over time. 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-R2-ES-2023-0073 on https://www.regulations.gov and at https://www.fws.gov/office/arizona-ecological-services.

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. For the Quitobaquito tryonia to maintain viability, its populations must be highly resilient with sufficient redundancy and representation. Several factors influence the resiliency of the Quitobaquito tryonia populations, including: (1) the reduction of spring discharge, (2) effects of climate change, (3) spring modification, and (4) conservation actions. These resiliency factors and habitat elements are discussed in detail in the SSA report (Service 2022, entire) and are summarized here.

Spring flow in spring systems is maintained by groundwater, and individual springs may range widely in size, water chemistry, morphology, landscape setting, and persistence (Springer and Stevens 2009, p. 84). Groundwater recharge of aquifers occurs through precipitation, through surface water from rivers, or as an anthropogenic input from irrigation and municipal returns (Trček and Zojer 2010, p. 87). A decline in groundwater recharge or increase in groundwater discharge ( e.g., from groundwater withdrawal, drought, or increased evapotranspiration) can lead to reductions, disruptions, or cessation of spring flow. While the Quitobaquito tryonia possesses an operculum (Johnson et al. 2013, p. 248), which enables the shell to be sealed, this only provides protection from drying for a very limited period of time ( i.e., hours to days).

While the full suite of water quality conditions that the Quitobaquito tryonia prefers has not been determined, water quality measurements have been recorded for some parameters in springs inhabited by the Quitobaquito tryonia or other closely related species. The water chemistry of a spring is strongly influenced by aquifer geology. Several habitat variables, such as dissolved oxygen, pH, conductivity, and temperature, may influence the distribution and abundance of springsnails (O'Brien and Blinn 1999, pp. 231-232; Mladenka and Minshall 2001, pp. 209-211; Malcom et al. 2005, p. 75; Martinez and Thome 2006, pp. 12-15; Lysne et al. 2007, p. 650). No known sources of contaminants are present in the Quitobaquito Springs system, although some concern has been raised regarding the aerial application of agricultural pesticides in the Rio Sonoyta watershed of Mexico and the threat of wind drift (NPS 2006a, p. 1). However, a contaminant study from the early 1990s found no evidence of contamination from sediment samples taken from Quitobaquito Pond (King et al. 1996, pp. 3-5).

While Tryonia spp. are found on a variety of substrate types, there is some evidence that coarse substrates may promote higher abundances of Quitobaquito tryonia. Bogan (2018, entire) noted differences in densities of Quitobaquito tryonia within the 200-m (700-ft) spring channel at Quitobaquito Springs. The spring channel at Quitobaquito Springs is a concrete-lined channel with riffle, run, and pool habitat types. The NPS regularly manages vegetation along the stream channel to reduce submerged and emergent vegetation, creating a mosaic of available habitats and ensuring water can flow freely through the channel. Within the channel, Quitobaquito tryonia were densest in gravel riffles, followed by concrete runs and riffles, then vegetated pools. However, surveys by Arizona Game and Fish Department (AZGFD) biologists at Quitobaquito Springs have not found any Quitobaquito tryonia along the densely vegetated margins of the pond, located at the terminus of the spring channel (Williams and Sorensen 2019, p. 2).

Organ Pipe Cactus National Monument was established in 1937, but cattle operations near Quitobaquito, Williams, and Burro Springs continued until large-scale cattle operations ended in 1976 (Warren and Anderson 1987, p. 1). In 1978, the remaining cattle were removed from the Monument (Bennett and Kunzmann 1989, pp. 15, 21-22). After the large-scale cattle operations ended, spring sources became dense with vegetation and standing water was reduced (Warren and Anderson 1987, p. 13). These effects of intensive livestock grazing on vegetation change and soil disturbance ended in 1978-79 across the Springs at Organ Pipe Cactus National Monument. Occasionally, trespass cattle and other livestock ( i.e., horses and burros) still occur within the greater Organ Pipe Cactus National Monument, but they are not common near Quitobaquito Springs. The concrete channel that was installed in 1989 (NPS 1992, pp. 28-30) also created a more stable system within the Springs, so the Quitobaquito tryonia population experiences less of an effect of vegetation change, soil disturbance, and reductions/fluctuations in preferred substrates.

We reviewed the potential risk factors ( i.e., threats, stressors) that could be currently affecting the Quitobaquito tryonia. In this proposed rule, we will discuss only those factors in detail that could meaningfully impact the status of the species. Those risk factors that are unlikely to have significant effects on the Quitobaquito tryonia, such as vegetation and soil disturbance, invasive species, and predation, are not discussed here but are evaluated in the SSA report. For example, the introduction of nonnative or invasive predators has the potential to negatively affect the Quitobaquito tryonia (Hershler 1998, p. 14; Sada 2017, p. 11). However, nonnative predators such as bullfrogs, crayfish, and cichlids are not currently present in areas occupied by the Quitobaquito tryonia. Quitobaquito Springs is a remote, isolated natural water, and is neither a destination for anglers ( e.g., bait bucket dump), nor is stocked with fish from State or Federal hatcheries. The primary risk factors ( i.e., threats) affecting the status of the Quitobaquito tryonia are the reduction of spring discharge (Factor A), effects of climate change (Factor E), and spring modification (Factor A).

Quitobaquito Springs complex is likely supplied by prehistoric water ( i.e., water that was deposited many millennia before current day) stored beneath an area centered around Aguajita Wash with the Quitobaquito Hills roughly delineating the western boundary, shallow bedrock to the east, and Rio Sonoyta to the south (Carruth 1996, pp. 18, 20; see figure 4.2 in the SSA report for a map of the area). Groundwater recharge in the approximately 100-square-mile area is primarily from the limited infiltration (5-10 percent) of local rainfall (6.6 inches/year; Carruth 1996, p. 18). The historically consistent spring flows at Quitobaquito Springs were highly dependent on large, stored water volumes (Carruth 1996, p. 21). However, long-term spring flow has declined over the last 25 years (see figure 1, below; Zamora 2018, p. 146; Zamora et al. 2020, pp. 5-6). Although it is uncertain how impacts to the regional aquifer may affect Quitobaquito Springs complex outputs (Carruth 1996, p. 21; Zamora et al. 2020, p. 15), stressors on the Rio Sonoyta aquifer may include municipal water usage for the city of Sonoyta (Sonora, Mexico); local agriculture ( i.e., irrigated crop fields and cattle ranching); and water usage associated with local construction of the U.S.-Mexico border wall.

The City of Sonoyta has grown in human population since the late 1960s (Brown 1991, p. 6). By 1988, there were 212 wells (165 for irrigation) pumping in or near the city of Sonoyta (Brown 1991, p. 18). Even with the Mexican government placing a moratorium on any new wells being dug in 1988, groundwater withdrawals are exceeding recharge to the aquifer (Brown 1991, p. 47). Under conditions in the early 1990s, annual pumping capacity was approximately 2.5 times greater than the annual rate of recharge (Brown 1991, p. 27), and the number of irrigated acres has remained constant since 1982 (Brown 1991, p. 47). Census data from 1995 to present day show a peak population for Sonoyta and the surrounding area in 2010 with steady declines since. While the existing pumping infrastructure is capable of greatly exceeding the recharge rate in the Rio Sonoyta basin, during a study from 2001 to 2006, it was observed that many of the irrigation wells, pumps, and ditches were not in use (Rosen et al. 2010, p. 13).

Additionally, beginning in 2020, there has been water withdrawal associated with border wall construction between the United States and Mexico; this water withdrawal affected the groundwater and aquifer systems supplying Quitobaquito Springs. A permit filed by U.S. Customs and Border Protection requested 84,000 gallons per day for a 45-day build period. Two new wells were drilled to meet the water demand, which may hasten the “drawdown” of water resources in an area where groundwater withdrawals from the nearby Rio Sonoyta alluvial aquifer exceed the recharge rate (Brown 1991, p. 27). These new wells were located 11 to 13 kilometers (7 to 8 miles) from Quitobaquito Springs to minimize any potential stress on spring output (Morawe 2021, pers. comm.). Future border wall construction has been paused, but construction, and thus water withdrawal, may resume in the future.

Drought has the potential to impact spring flow by reducing the amount of recharge into the groundwater system and increasing evaporation of surface water due to extended periods of high ambient temperatures. Statewide trends in Arizona over the last 100 years show 60 percent of the last 20 years were in drought conditions (NOAA 2021, unpaginated). Pima County, Arizona, has been in an extended drought since 2000, which coincides with continued declines in spring flow output at Quitobaquito Springs. Along with drought, a trend of warmer and drier conditions in Organ Pipe Cactus National Monument has been observed (NPS 2014, entire). Climate change is expected to further exacerbate drought conditions.

As a result of groundwater withdrawals and drought, spring discharge has declined at Quitobaquito, Williams, and Burro Springs. Monitoring of spring discharge at Quitobaquito Springs began in 1973 and has continued intermittently through the present day. Methods for measuring discharge varied over the years, but long-term spring flow measurements show a decline in discharge over the last 25 years (see figure 1, below; Zamora 2018, p. 146; Zamora et al. 2020, pp. 5-6). By the early 2000s, Williams and Burro Springs had ceased flowing completely (NPS 2006b, p. 9), and the species is now considered extirpated from these areas, though there is some evidence of seasonally intermittent surface water occurring at Williams Spring (Williams and Sorensen 2019, p. 3). Burro Spring became intermittent sometime prior to 1992 (NPS 1992, p. 28), while Williams Spring still maintained perennial discharge during the summer of 1991 (Goodman 1992, p. 143).

There is a broad consensus among climate models that arid ecosystems are especially vulnerable to the impacts of climate change (Seager et al. 2007, pp. 1181-1184; Weiss and Overpeck 2005, p. 2075; Archer and Predick 2008, p. 24). The current prognosis of climate change impacts on the Sonoran Desert includes fewer frost days; warmer temperatures; greater water demand by plants, animals, and people; and an increased frequency of extreme weather events (such as heat waves, droughts, and floods) (Weiss and Overpeck 2005, p. 2074; Archer and Predick 2008, p. 24). For the southwestern United States, the following influences of climate change are projected: (1) Continued warming with longer and hotter heat waves in summer; (2) decreased average precipitation in the southern portion; (3) more frequent and intense extreme precipitation in winter; (4) decreased late-season snowpack; (5) decreased river flow and soil moisture; (6) more frequent and intense flooding in some seasons and some parts of the Southwest, and less frequent and intense in other seasons; and (7) hotter, more severe, and more frequent droughts in parts of the Southwest (Garfin et al. 2013, pp. 5-6).

Reductions in annual rainfall associated with climate change, coupled with hotter temperatures that are projected with very high confidence, will likely bring reductions in aquifer inputs due to reduced recharge and higher evaporation rates, and will likely have negative effects on aquifers across the Southwest. Virtually every plausible future climate scenario projects longer dry spells between rains, which can have more severe impacts on the landscape, especially in spring and summer (Lenart 2007, entire). It is therefore possible that some existing Quitobaquito tryonia habitat will periodically dry up in the spring and summer during the current century. Bigger and more frequent floods caused by more intense, heavy rainfall events are also expected episodically in the winter (Overpeck et al. 2013, p. 6) and may be even more destructive as riparian vegetation declines within the greater system, although flooding may not have as pronounced of an effect on the concrete-lined channel of Quitobaquito Springs. Climate change trends are highly likely to continue (Overpeck et al. 2013, entire). Climatic impacts on the Quitobaquito tryonia will likely be further complicated by interactions with other factors ( e.g., interactions with nonnative species and other habitat-disturbing activities).

Spring modifications include channel modification, surface water diversions, and impoundment at springs. Spring modifications may occur for development, management, or restoration purposes and have been extensively documented at Quitobaquito Springs, although some modification also occurred at Williams Spring. These modifications may be either beneficial or detrimental to springsnail populations depending on the context. Human alterations of springheads to concentrate or divert discharge negatively affect spring systems and have resulted in the decline or loss of springsnail populations throughout the southwestern United States and northern Mexico (Unmack and Minckley 2008, p. 20; Hershler et al. 2011, p. 12; Hershler et al. 2014, pp. 51, 53, 56, 58-63). Surface water diversions are sources of multiple stresses to springs, including altering physical integrity, creating conditions that favor nonnative aquatic species, and degrading habitat conditions for native riparian vegetation (Sada 2017, pp. 10-11). Additionally, the presence of pipes, dikes, dams, impoundments, channel modifications and dredging, or spring boxes indicate further stress in the form of spring diversions and loss of occupancy of springsnails at some sites. Although surface water diversions can cause stress to springs and springsnails, populations of springsnails in historically disturbed habitats can recover if the disturbance is low in magnitude and infrequent (Sada 2017, p. 22).

While restoration may be a temporary source of stress to a spring system and springsnails, there is often an overall benefit to springsnails by improving all of the species' needs within a spring ( e.g., water quality, substrate and vegetation, and spring flow). Aquatic habitat at Quitobaquito Springs was severely reduced in the 1970s when flow from the Southwest Spring was directed into an underground pipe. However, a restoration project in 1989 restored aboveground flow through channel modification and the creation of a concrete-lined stream that mimics riffle, run, and pool habitats; that stream is currently inhabited by the Quitobaquito tryonia.

Several historical and ongoing influences, including reductions in spring discharge, effects of climate change, and spring modification, may affect the viability of the Quitobaquito tryonia. The most pervasive threat to the species is the historical and ongoing loss or decline in spring discharge. Quitobaquito tryonia populations in two springs (Burro and Williams) are now extirpated because of a loss of perennial flow, while Quitobaquito Springs has seen a documented decline in discharge. The causes of the decline in spring discharge are not definitive but are likely related to ongoing drought conditions and groundwater pumping. Climate change is expected to exacerbate these conditions. Spring modification has had both positive and negative influences on the viability of the Quitobaquito tryonia. Historical anthropogenic modification of Quitobaquito Springs severely curtailed available habitat, while ongoing conservation efforts have restored spring channel habitat.

The current condition of the Quitobaquito tryonia considers the risks to the populations that are currently occurring. In the SSA report, for each population, we developed and assigned condition categories for one demographic factor and three habitat factors that are important for the viability of the Quitobaquito tryonia. We used abundance to measure demographics of the populations, and we characterized habitat using spring flow, water quality, and substrate and vegetation as our metrics. The condition scores for each factor were then used to determine an overall condition of each population: high, moderate, low, or extirpated.

The Quitobaquito Springs population is in high condition for all metrics, with an overall high population resiliency. Hillside Seep #2 is in low condition for abundance, moderate condition for spring flow and substrate and vegetation, and high condition for water quality, for an overall moderate population resiliency (see table 1, below). Williams Spring and Burro Spring are extirpated.

Repopulation of extirpated locations (Williams Spring and Burro Spring) is unlikely because although the springs may be intermittent, perennial surface water is absent, making habitat unsuitable for the Quitobaquito tryonia (Williams and Sorensen 2019, p. 3). The exact date when the Quitobaquito tryonia became extirpated from these locations is unknown, but habitat was deemed unsuitable for springsnails in 2004, and no Quitobaquito tryonia were found at this time or during subsequent visits (Martinez and Sorensen 2016, p. 4; Williams and Sorensen 2019, p. 3).

Redundancy for the Quitobaquito tryonia is characterized by having multiple, sufficiently resilient populations distributed across the spring systems historically occupied by the species for the species to be able to withstand catastrophic events. Species that are well-distributed across their historical range are less susceptible to the risk of extirpation (Carroll et al. 2010, entire; Redford et al. 2011, entire). Currently, because there are two extant populations with moderate or high resiliency and two extirpated populations, redundancy of the species has been reduced from historical levels. Additionally, the Quitobaquito tryonia has always been a highly localized endemic (it historically occupied springs occurring within a 1-kilometer (0.6-mile) radius of one another); the two extant populations are separated by roughly only 100 m (328 ft). Thus, a catastrophic event (such as drought) is highly likely to simultaneously affect both remaining populations of the Quitobaquito tryonia. Conversely, despite their proximity, the populations are isolated and not connected by overland flow; thus, some catastrophic events, such as the introduction of an invasive species, may only affect one of the two populations. However, this isolation would also limit the ability of the Quitobaquito tryonia to naturally recolonize given its limited dispersal ability. Because of the species' small size and dependence on water, dispersal events are rare and opportunistic, with overland transportation likely occurring by “hitchhiking” on birds or other animals (Hershler et al. 2005, pp. 1755-1756, 1763). Therefore, species redundancy for the Quitobaquito tryonia is currently limited to two populations that occur within a reduced geographical extent, which reduces the species' ability to withstand catastrophic events.

Representation reflects a species' capacity to adapt to changing environmental conditions over time and can be characterized by genetic and ecological diversity within and among populations. We describe species representation in terms of habitat variability across its historical range because data on the species' life history, demographics, and population genetics are lacking. Quitobaquito Springs has the greatest discharge of the four springs. It is possible that some local adaptation to water temperature, flow velocity, and/or community interactions occurred among the populations. Gene flow between populations is unlikely due to the isolation of separate springs and the species' limited dispersal ability. Because the species is limited in range and dispersal abilities and the spring habitats of its populations share several characteristics, the adaptive capacity, and thus the species' representation, is limited.

As part of the SSA, we also developed two future condition scenarios at two time steps (10 years and 40 years into the future) to capture the range of uncertainties regarding future threats and the projected responses by the Quitobaquito tryonia. Our scenarios assumed a continued rate changing climate conditions, water withdrawals, or drought that may impact groundwater levels and the rate of spring flow decline, as well as those factors at increased levels. Because we determined that the current condition of the Quitobaquito tryonia is consistent with an endangered species (see Determination of Status, below), we are not presenting the results of the future scenarios in this proposed rule. Please refer to the SSA report (Service 2022) for the full analysis of future scenarios.

We note that, by using the SSA framework (Service 2016) to guide our analysis of the scientific information documented in the SSA report, we have analyzed the cumulative effects of identified threats and conservation actions on the species. To assess the current and future condition of the species, we evaluate the effects of all the relevant factors that may be influencing the species, including threats and conservation efforts. Because the SSA framework considers not just the presence of the factors, but to what degree they collectively influence risk to the entire species, our assessment integrates the cumulative effects of the factors and replaces a standalone cumulative effects analysis.

Several habitat management actions can benefit the viability of the Quitobaquito tryonia by reducing or removing threats to the species. The concrete channel that was installed in 1989 (NPS 1992, pp. 28-30) created a more stable system within the spring population that is less affected by vegetation change, soil disturbance, and reductions/fluctuations in preferred substrates. The concrete channel prevents establishment of dense vegetative stands that may impede flow, which is required to maintain species viability. Additionally, staff at Organ Pipe Cactus National Monument regularly remove dense aquatic vegetation from the spring channel to maintain stream flow and provide a mosaic of habitat types throughout the spring channel (Raymond et al. 2019, pp. 18-19; Martin 2023a, pers comm.). Quitobaquito tryonia are less abundant in pool habitat and on aquatic vegetation compared to run or riffle habitat and on other substrates (Bogan 2018, entire; Williams and Sorensen 2019, p. 11; Sorensen 2021, pp. 5-8, 12). Aquatic vegetation removal may result in the loss of some Quitobaquito tryonia individuals, but this action is necessary to maintain flow of the spring channel.

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 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.

After evaluating threats to the species and assessing the cumulative effect of the threats under the Act's section 4(a)(1) factors, we find that although the Quitobaquito tryonia has sufficiently resilient extant populations, it has declined in number of populations from known historical levels. Our analysis revealed several factors that caused this decline and pose a meaningful risk to the viability of the species. These threats are primarily related to habitat changes (Factor A) and include the reduction of spring discharge and spring modification, in addition to effects of climate change (Factor E).

The Quitobaquito tryonia is known from four historical populations, but two of those have become extirpated (Williams Spring and Burro Spring). As a narrow endemic species, it historically occupied springs occurring within a 1-kilometer (0.6-mile) radius. Because the Williams Spring and Burro Spring populations are extirpated, current redundancy of the species has been reduced 50 percent from historical levels. The Quitobaquito tryonia has always been a highly localized endemic, and the two extant populations (Quitobaquito Springs and Hillside Seep #2) are only separated by roughly 100 m (328 ft). Therefore, a catastrophic event, such as drought, is highly likely to simultaneously affect both remaining populations of the Quitobaquito tryonia.

The most pervasive threat to the species is the historical and ongoing loss or decline in spring discharge. The species' populations at two springs (Burro Spring and Williams Spring) are extirpated because of a loss of perennial flow, while the Quitobaquito Springs complex has seen a documented decline in discharge. From January 2020 to October 2021, daily mean discharge ranged from 26 to 51 lpm and averaged 35 lpm, which is a decrease from recorded levels from 1981 to 1992 of 57 to 151 lpm and averaged 106 lpm (Carruth 1996, p. 15). Although discharge at Hillside Seep #2 has not been measured, it is a less wetted area and has even lower flow velocity than Quitobaquito Springs (AZGFD 2021, p. 3). The causes of the decline in spring discharge are likely related to ongoing drought conditions and groundwater pumping. Climate change is expected to exacerbate these conditions with increased temperatures, and more severe and frequent droughts. Historical modification of the spring complex has severely curtailed available habitat, and the loss of spring flow is ongoing and expected to continue (see figure 1, above).

Despite their proximity, the populations are isolated and not connected by overland flow, and this isolation also limits the ability of the Quitobaquito tryonia to naturally recolonize given the species' lack of dispersal ability. Because of the species' small size and dependence on water, dispersal events are rare and opportunistic, with overland transportation likely occurring by “hitchhiking” on birds or other animals (Hershler et al. 2005, pp. 1755-1756, 1763). Therefore, gene flow between the populations is limited or nonexistent.

In summary, the Quitobaquito tryonia is more susceptible to extirpation from catastrophic events and has reduced adaptive capacity. The number of known populations has already been reduced by 50 percent because of loss of spring flow, which is continuing to occur and is impacting the remaining two populations. The species is currently in danger of extinction because reduction of spring discharge, spring modification, and the effects of climate change are all risks that have historically impacted, and are currently impacting, the species and are reducing its viability across its range. We do not find the species meets the definition of a threatened species because the species has already shown declines in the number and resiliency of populations. Two of the four known populations have already become extirpated due to the threats mentioned above. Although one population is currently in high condition and the other population is currently in moderate condition, both are currently experiencing impacts from the aforementioned threats. Because current redundancy is reduced from known historical levels, and representation is limited due to the close proximity of the two remaining populations, the species is vulnerable to catastrophic and stochastic events. Thus, after assessing the best available information, we determine that the Quitobaquito tryonia 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 Quitobaquito tryonia is in danger of extinction throughout all of its range and accordingly did not undertake an analysis of any significant portion of its range. Because the Quitobaquito tryonia 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), which vacated the provision of the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (79 FR 37578; July 1, 2014) providing that if the Service determines that a species is threatened throughout all of its range, the Service will not analyze whether the species is endangered in a significant portion of its range.

Our review of the best available scientific and commercial information indicates that the Quitobaquito tryonia meets the Act's definition of an endangered species. Therefore, we propose to list the Quitobaquito tryonia as an endangered species in accordance with sections 3(6) and 4(a)(1) of the Act.

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

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

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

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

Although the Quitobaquito tryonia is only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for this species. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT ).

Section 7 of the Act is titled “Interagency Cooperation” and mandates all Federal action agencies to use their existing authorities to further the conservation purposes of the Act and to ensure that their actions are not likely to jeopardize the continued existence of listed species or adversely modify critical habitat. Regulations implementing section 7 are codified at 50 CFR part 402.

Section 7(a)(2) states that each Federal action agency shall, in consultation with the Secretary, ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat. Each Federal agency shall review its action at the earliest possible time to determine whether it may affect listed species or critical habitat. If a determination is made that the action may affect listed species or critical habitat, formal consultation is required (50 CFR 402.14(a)), unless the Service concurs in writing that the action is not likely to adversely affect listed species or critical habitat. At the end of a formal consultation, the Service issues a biological opinion, containing its determination of whether the Federal action is likely to result in jeopardy or adverse modification.

In contrast, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of critical habitat proposed to be designated for such species. Although the conference procedures are required only when an action is likely to result in jeopardy or adverse modification, action agencies may voluntarily confer with the Service on actions that may affect species proposed for listing or critical habitat proposed to be designated. In the event that the subject species is listed or the relevant critical habitat is designated, a conference opinion may be adopted as a biological opinion and serve as compliance with section 7(a)(2) of the Act.

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

The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to endangered wildlife. The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 17.21, make it illegal for any person subject to the jurisdiction of the United States to commit, to attempt to commit, to solicit another to commit, or to cause to be committed any of the following: (1) Import endangered wildlife into, or export from, the United States; (2) take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct) endangered wildlife within the United States or on the high seas; (3) possess, sell, deliver, carry, transport, or ship, by any means whatsoever, any such wildlife that has been taken illegally; (4) deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or (5) sell or offer for sale in interstate or foreign commerce. Certain exceptions to these prohibitions apply to employees or agents of the Service, the National Marine Fisheries Service, other Federal land management agencies, and State conservation agencies.

We may issue permits to carry out otherwise prohibited activities involving endangered wildlife under certain circumstances. Regulations governing permits for endangered wildlife are codified at 50 CFR 17.22. With regard to endangered wildlife, a permit may be issued for scientific purposes, for enhancing the propagation or survival of the species, or for take incidental to otherwise lawful activities. The statute also contains certain exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.

It is the policy of the Services, as published in the Federal Register on July 1, 1994 (59 FR 34272), to identify, to the extent known at the time a species is listed, specific activities that would not be considered likely to result in violation of section 9 of the Act. To the extent possible, activities that would be considered likely to result in violation would also be identified in as specific a manner as possible. The intent of this policy is to increase public awareness of the effect of a proposed listing on proposed and ongoing activities within the range of the species proposed for listing.

At this time, we are unable to identify specific activities that would not be considered likely to result in a violation of section 9 of the Act beyond what is already clear from the descriptions of prohibitions or already excepted through our regulations at 50 CFR 17.21 ( e.g., 50 CFR 17.21(c)(2), which provides that any person may take endangered wildlife in defense of his own life or the lives of others). Also, as discussed above, certain activities that are prohibited under section 9 may be permitted under section 10 of the Act.

To the extent currently known, the following is a list of examples of activities that would be considered likely to result in violation of section 9 of the Act in addition to what is already clear from the descriptions of the prohibitions found at 50 CFR 17.21:

(1) Unauthorized handling or collecting of the Quitobaquito tryonia.

(2) Destruction/alteration of Quitobaquito tryonia habitat by discharge of fill material, draining, ditching, tiling, pond construction, stream channelization or diversion, or removal or destruction of emergent aquatic vegetation; or diversion or alteration of surface or ground water flow into or out of the Quitobaquito Springs complex ( i.e., due to roads, impoundments, discharge pipes, storm water detention basins, etc.) or in any body of water in which the Quitobaquito tryonia is known to occur.

(3) Direct or indirect destruction of riparian habitat where the Quitobaquito tryonia occurs.

(4) Introduction of nonnative species that compete with or prey upon the Quitobaquito tryonia, such as the introduction of nonnative fish and crayfish species into any waters in which the Quitobaquito tryonia is known to occur.

(5) Release of biological control agents that attack any life stage of this species in or near Quitobaquito tryonia habitat.

(6) Discharge of chemicals or fill material into any waters in which the Quitobaquito tryonia is known to occur.

The list above is intended to be illustrative and not exhaustive; additional activities that would be considered likely to result in violation of section 9 of the Act may be identified during coordination with the local field office, and in some instances ( e.g., with new or site-specific information), the Service may conclude that one or more activities identified here would not be considered likely to result in violation of section 9. Questions regarding whether specific activities would constitute violation of section 9 of the Act should be directed to the Arizona Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

Critical habitat is defined in section 3 of the Act as:

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

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

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

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

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

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

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

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

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

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

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

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

Brooded young, juvenile, and adult Quitobaquito tryonia all need adequate spring flow and water quality to meet their resource functions, which include feeding, growth, survival, and breeding (Hershler 1984, p. 68; Hershler and Sada 2002, p. 256; Martinez and Thome 2006, p. 14). Specifically, spring flow must be perennial to prevent desiccation and maintain stable water quality parameters.

Quitobaquito tryonia need adequate periphyton growth for food. Tryonia species are likely herbivores or detritivores that primarily graze on periphyton and macrophytes by scraping surfaces with their file-like radula (Pyron and Brown 2015, pp. 386, 401). Periphyton is a mixture of algae, bacteria, detritus, fungi, diatoms, and protozoa contained within a polysaccharide matrix known as a biofilm that grows on exposed surfaces, such as macrophytes or substrate (Lysne et al. 2007, p. 649). Production of periphyton and algae in a natural spring system is likely tied to water quality, nutrient availability, and exposure to sunlight (Brown et al. 2008, p. 488; Martinez and Thome 2006, p. 14). Additionally, larger substrates (such as gravel or cobble) develop a richer periphyton coating than finer substrates (Brown and Lydeard 2010, p. 285). Therefore, periphyton is essential to the Quitobaquito tryonia because it is its primary food source.

Suitable substrate is important for shelter and periphyton growth. Substrate characteristics influence the abundance and productivity of springsnails. Tryonia spp. appear to use a broad array of substrate types, including cobble, gravel, sand, and silt (Hershler et al. 2011, entire), although Quitobaquito tryonia appear to be most abundant on hard substrates within the spring channel at Quitobaquito Springs (Bogan 2018, entire). We assume that if a substrate type has a higher density of Quitobaquito tryonia, then that substrate is preferred by the species when compared to other suitable substrates. Presumed preferred substrates include hard and/or coarse substrates, such as cobble and gravel, which increase springsnail productivity by promoting robust periphyton growth. Other suitable substrate includes fine-grained sediment, such as sand and silt. Suitable substrates still provide adequate food resources but are not as productive as presumed preferred substrates because of limited periphyton growth. Therefore, habitat with presumed preferred substrates or a combination of presumed preferred and suitable substrates is essential to the species.

Aquatic vegetation is also important for shelter and periphyton growth. Vegetation density influences the abundance and productivity of springsnails. We assume that vegetation that occurs at lower densities is preferable to the Quitobaquito tryonia when compared to higher densities of vegetation. Important vegetation includes native macrophytes, such as sedges ( Schoenoplectus spp.) and rushes ( Juncus spp.), occurring at low densities that do not impede spring flow. Other native macrophytes may also be considered suitable for shelter and periphyton growth when they occur at higher densities. Therefore, habitat including aquatic vegetation present at levels that do not impede spring flow is essential to the species.

The introduction of nonnative or invasive predators has the potential to negatively affect springsnails (Hershler 1998, p. 14; Sada 2017, p. 11). The nonnative New Zealand mudsnail ( Potamopyrgus antipodarum ) is an invasive freshwater snail of the family Hydrobiidae that is known to compete with and slow the growth of native freshwater snails, including springsnails (Lysne and Koetsier 2008, pp. 103, 105; Lysne et al. 2007, pp. 647-653). New Zealand mudsnails may outcompete hydrobiid snails for food and shelter resources. Nonnative crayfish (notably Faxonius virilis and Procambarus clarkii ) are known predators to springsnails and have been found in springs and streams at and near springsnail sites in Arizona. Crayfish have been found to consume snails that occupy similar habitats as springsnails and their eggs (Fernandez and Rosen 1996, pp. 24-25). Therefore, the absence of nonnative species, or a level of nonnative species low enough that it does not impede resource availability for or result in mortality of Quitobaquito tryonia individuals, is essential to the Quitobaquito tryonia.

Tryonia and other springsnails show a pattern of decreasing abundance with distance from the spring source (Hershler and Sada 2002, p. 256; Martinez and Thome 2006, p. 14; Rogowski 2012, pp. 34, 37), indicating that water chemistry such as stable dissolved oxygen, pH, conductivity, and temperature, as well as absence of or low enough levels of contaminants, may influence the distribution and abundance of springsnails (O'Brien and Blinn 1999, pp. 231-232; Mladenka and Minshall 2001, pp. 209-211; Malcom et al. 2005, p. 75; Martinez and Thome 2006, pp. 12-15; Lysne et al. 2007, p. 650). However, the full suite of water quality conditions that the Quitobaquito tryonia prefers has not been determined. Nevertheless, we assume that overall sufficient water quality that provides appropriate conditions for the Quitobaquito tryonia is essential to the species.

We derive the specific physical or biological features essential to the conservation of the Quitobaquito tryonia from studies of the species' habitat, ecology, and life history as described below. Additional information can be found in the SSA report (Service 2022, entire; available on https://www.regulations.gov under Docket No. FWS-R2-ES-2023-0073). We have determined that the following physical or biological features are essential to the conservation of the Quitobaquito tryonia:

(1) Perennially free-flowing spring water with sufficient flow rate.

(2) Sufficient amount of periphyton to support all life stages of the Quitobaquito tryonia.

(3) Presence of hard or coarse substrates (including cobble and gravel) or a combination of coarse and fine substrates (including sand and/or silt).

(4) Aquatic emergent and submergent vegetation, including native macrophytes such as sedges ( Schoenoplectus spp.) and rushes ( Juncus spp.), occurring at densities that do not impede spring flow.

(5) Water quality parameters that support all life stages of the Quitobaquito tryonia, including:

(a) Adequate levels of temperature, pH, and conductivity; and

(b) Absence of contaminants, or a level of contaminants low enough that it does not negatively impact necessary water quality conditions for Quitobaquito tryonia individuals.

(6) Absence of nonnative species, or a level of nonnative species low enough that it does not impede resource availability for or result in mortality of Quitobaquito tryonia individuals.

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 the Quitobaquito tryonia may require special management considerations or protection to reduce the following threats: (1) reduction of spring discharge, (2) effects of climate change, and (3) spring modification.

Management activities that could ameliorate these threats and protect the quantity and quality of the habitat include, but are not limited to: (1) decreasing groundwater pumping to maintain spring flow that supports spring habitat; (2) removing dense aquatic vegetation from the spring channel to maintain stream flow and provide a mosaic of habitat types throughout the spring channel; and (3) controlling and removing introduced nonnative predators and competitors, such as crayfish.

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 currently proposing to designate 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. No unoccupied areas have at least one essential physical or biological feature and a reasonable certainty of contributing to conservation of the species.

In order to analyze possible habitat locations, in November 2018, several seeps to the northwest of Quitobaquito Springs were surveyed, but none had perennial spring flow (Williams and Sorensen 2019, p. 9), which is essential for the Quitobaquito tryonia. In October 2020, two seeps east of Quitobaquito Pond were surveyed; Quitobaquito tryonia were detected at only Hillside Seep #2, one of the two surveyed locations. In November 2021, several additional seeps east of Quitobaquito Pond were surveyed and Hillside Seep #1 and #2 were revisited. Five seeps had low flow and possible springsnail habitat, but no Quitobaquito tryonia were found (Sorensen 2021, p. 10). There are other unnamed seeps that occur within the broader Quitobaquito Springs area that have yet to be fully surveyed for the Quitobaquito tryonia, but none of them occur in the historical range of the species. It is unknown how many seeps in the area have the perennial flow necessary for brooded young, juvenile, and adult Quitobaquito tryonia to meet their resource functions, which include feeding, growth, survival, and breeding (Service 2022, p. 13). Specifically, spring flow must be perennial to prevent desiccation and maintain stable water quality parameters (Hershler 1984, p. 68; Hershler and Sada 2002, p. 256; Johnson et al. 2013, p. 248; Martinez and Thome 2006, p. 14). Therefore, for a seep to be suitable habitat and have reasonable certainty that it would contribute to the conservation of the Quitobaquito tryonia, it must contain the essential physical or biological feature of perennially free-flowing spring water with sufficient flow rate. In the current condition and in all plausible future scenarios, it is unlikely that any of the seeps in the area would contain or be able to be managed to achieve the spring flow necessary for the Quitobaquito tryonia, especially when conditions are exacerbated by climate change. Accordingly, for those springs that occur outside of the historical range, we cannot identify the exact habitat parameters that will ensure the success of the species there. Therefore, there are no areas other than those included in this proposed critical habitat designation that we are reasonably certain would contribute to the conservation of the Quitobaquito tryonia.

We are proposing to designate critical habitat units that we have determined based on the best scientific data available are known to be currently occupied and contain the physical or biological features essential to the conservation of the Quitobaquito tryonia. Additional areas outside the aquatic habitat within each subunit are included in the proposed designation to assist in maintaining the hydrology of the aquatic features. Sources of occupancy data on the Quitobaquito tryonia are from all available reports since monitoring of the species began in 2002 (Martinez and Sorensen 2016, entire; Bogan 2018, entire; Williams and Sorensen 2019, entire; AZGFD 2021, entire; Sorensen 2022, entire). We determined localities to be occupied at the time of listing if they are identified as extant in the SSA report (Service 2022, pp. 16-20). Extirpated populations are not included because the spring sources that supported them no longer have the essential physical or biological features to support the species now or in the future. Specifically, these areas no longer have water, and it is unlikely that groundwater would support spring flow in these areas.

We obtained information on ecology and habitat requirements of the Quitobaquito tryonia from multiple sources, as identified in the SSA report as explained above (Service 2022, pp. 7-13). For mapping of proposed critical habitat, we used Organ Pipe Cactus National Monument geo-referenced data of aquatic habitats that have perennial spring flow, adequate water quality, and substrates and aquatic vegetation that support extant populations of the Quitobaquito tryonia. There are two areas that contain the physical or biological features needed by the Quitobaquito tryonia: a human-made concrete spring run and a natural seep. We delineated the extent of critical habitat along the spring run by the physical boundary of the concrete channel and southwest spring trench with an average width of 2 m (6.4 ft) along this length to capture areas where water pools along the channel. Water provided by the springs does not flow outside of this human-made channel and corresponding pools. For Hillside Seep #2, we delineated the extent of critical habitat along the seep from the point of origin of the seep downhill a distance of 15.2 m (50 ft), which is the longest known length of flow from the seep (Service 2022, p. 20). We included all area within 5 m (16.4 ft) of this length to capture any future hydrological changes of flow patterns that may occur over time in this area, both upslope and downslope of the seep. This also captures the habitat associated with the upslope and downslope of the watershed. In other words, this area incorporates most of the habitat that has the potential to impact the seep and any Quitobaquito tryonia individuals depending on that seep (Martin 2023b, pers. comm.). We used two different methods because the water in the channel is confined within a human-made concrete structure, and the seep is naturally occurring, so there is more variability in width of sheet flow (overland storm runoff).

In summary, for areas within the geographical area occupied by the species at the time of listing, we delineated critical habitat unit boundaries using the following criteria:

(1) We compiled all available data from observations of the Quitobaquito tryonia;

(2) We identified, based on the best scientific data available, populations that are extant at the time of listing (current) versus those that are extirpated;

(3) We identified areas containing the components comprising the essential physical or biological features that may require special management considerations or protection; and

(4) We circumscribed boundaries of potential critical habitat based on the above information that reflect current habitat conditions.

While the human-made concrete spring run that provides habitat for the Quitobaquito tryonia is included in the proposed critical habitat designation for the species, when determining proposed critical habitat boundaries, we made every effort to avoid including other developed areas such as lands covered by buildings, pavement, and other structures because such lands lack physical or biological features necessary for the Quitobaquito tryonia. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such other developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this proposed rule have been excluded by text in the proposed rule and are not proposed for designation as critical habitat. Therefore, if the critical habitat is finalized as proposed, a Federal action involving these lands would not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical or biological features in the adjacent critical habitat. We propose to designate as critical habitat areas that we have determined are occupied at the time of listing ( i.e., currently occupied) and that contain one or more of the physical or biological features that are essential to support the life-history processes of the species.

One unit, composed of two subunits, is proposed for designation based on one or more of the physical or biological features being present to support the Quitobaquito tryonia's life-history processes. Both subunits contain all of the identified physical or biological features and support multiple life-history processes.

The proposed critical habitat designation is defined by the map, as modified by any accompanying regulatory text, presented at the end of this document under Proposed Regulation Promulgation. We include more detailed information on the boundaries of the critical habitat designation in the preamble of this document. We will make the coordinates or plot points or both on which the map is based available to the public on https://www.regulations.gov at Docket No. FWS-R2-ES-2023-0073 and on our internet site at https://www.fws.gov/office/arizona-ecological-services.

We are proposing one unit, composed of two subunits, as critical habitat for the Quitobaquito tryonia. The critical habitat area we describe below constitutes our current best assessment of areas that meet the definition of critical habitat for the Quitobaquito tryonia. Table 2 shows the proposed critical habitat unit and the approximate area of each subunit. Both subunits of the Quitobaquito Unit are occupied.

We present brief descriptions of both subunits, and reasons why they meet the definition of critical habitat for the Quitobaquito tryonia, below.

Subunit A in the Quitobaquito Unit consists of 4,455 square feet (ft 2 ) (414 square meters (m 2 )) of the spring channel. This subunit is occupied and contains all of the physical or biological features essential to the conservation of the species. This subunit is entirely on Federal (NPS) land within Organ Pipe Cactus National Monument. Threats that are occurring in this area include decline in spring flow from groundwater withdrawal and drought, effects of climate change, and spring modification. This subunit may require special management considerations, such as vegetation removal, and to the extent possible, protection from future groundwater withdrawals in close proximity. NPS is already actively managing this unit by periodically removing a portion of emergent and submerged vegetation to improve water flow from the spring source, and NPS has worked with U.S. Customs and Border Protection on placement of wells for border construction activities.

Subunit B in the Quitobaquito Unit consists of 1,640 ft 2 (152 m 2 ) of a seep located approximately 338 ft (103 m) from the spring channel. This subunit is occupied and contains all of the physical or biological features essential to the conservation of the species. This subunit is entirely on Federal (NPS) land within Organ Pipe Cactus National Monument. Threats that are occurring in this area include decline in spring flow from groundwater withdrawal and drought, effects of climate change, and spring modification. This subunit may require the same special management considerations and protection as Subunit A. The NPS may manage this unit similar to the management discussed for Subunit A by periodically removing a portion of emergent and submerged vegetation.

Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they authorize, fund, 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. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat.

We published a final rule revising the definition of destruction or adverse modification on August 27, 2019 (84 FR 44976). Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species.

Compliance with the requirements of section 7(a)(2) is documented through our issuance of:

(1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or

(2) A biological opinion for Federal actions that may affect, and are likely to adversely affect, listed species or critical habitat.

When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define “reasonable and prudent alternatives” (at 50 CFR 402.02) as alternative actions identified during consultation that:

(1) Can be implemented in a manner consistent with the intended purpose of the action,

(2) Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction,

(3) Are economically and technologically feasible, and

(4) Would, in the Service Director's opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat.

Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.

Regulations at 50 CFR 402.16 set forth requirements for Federal agencies to reinitiate consultation if any of the following four conditions occur: (1) the amount or extent of taking specified in the incidental take statement is exceeded; (2) new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered; (3) the identified action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the biological opinion or written concurrence; or (4) a new species is listed or critical habitat designated that may be affected by the identified action. The reinitiation requirement applies only to actions that remain subject to some discretionary Federal involvement or control. As provided in 50 CFR 402.16, the requirement to reinitiate consultations for new species listings or critical habitat designation does not apply to certain agency actions ( e.g., land management plans issued by the Bureau of Land Management in certain circumstances).

The key factor related to the destruction or adverse modification determination is whether implementation of the proposed Federal action directly or indirectly alters the designated critical habitat in a way that appreciably diminishes the value of the critical habitat for the conservation of the listed species. As discussed above, the role of critical habitat is to support physical or biological features essential to the conservation of a listed species and provide for the conservation of the species.

Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may violate section 7(a)(2) of the Act by destroying or adversely modifying such habitat, or that may be affected by such designation.

Activities that we may, during a consultation under section 7(a)(2) of the Act, consider likely to destroy or adversely modify critical habitat include, but are not limited to:

(1) Actions that would decrease the amount of water available in the spring channel or seep used by the Quitobaquito tryonia. Such activities could include, but are not limited to, groundwater pumping, impoundment, and water diversion. These activities could decrease the amount of springflow so that the spring channel or seep becomes smaller, intermittent, or dry, and thereby could reduce the amount of space, prey, and cover available for Quitobaquito tryonia.

(2) Actions that would alter habitat used by the Quitobaquito tryonia. Such actions could include the maintenance of springheads, stream or channel courses, and ponds. Maintaining springheads and human-made or natural spring channels will maximize the amount of springflow available to Quitobaquito tryonia. The spring channel that supports Quitobaquito tryonia was channelized and requires constant management to stop encroaching vegetation from completely filling in the channel.

(3) Actions that would impact water quality of the spring system used by the Quitobaquito tryonia. Such activities could include, but are not limited to, presence of contaminants, livestock grazing, and spring modification.

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. No DoD lands with a completed INRMP are within the proposed critical habitat designation.

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).

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. In our final rules, we explain any decision to exclude areas, as well as decisions not to exclude, to make clear the rational basis for our decision. We describe below the process that we use for taking into consideration each category of impacts and any initial 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. To assess the probable economic impacts of a designation, we must first evaluate specific land uses or activities and projects that may occur in the area of the critical habitat. We then must evaluate the impacts that a specific critical habitat designation may have on restricting or modifying specific land uses or activities for the benefit of the species and its habitat within the areas proposed. We then identify which conservation efforts may be the result of the species being listed under the Act versus those attributed solely to the designation of critical habitat for this particular species. The probable economic impact of a proposed critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.”

The “without critical habitat” scenario represents the baseline for the analysis, which includes the existing regulatory and socio-economic burden imposed on landowners, managers, or other resource users potentially affected by the designation of critical habitat ( e.g., under the Federal listing as well as other Federal, State, and local regulations). Therefore, the baseline represents the costs of all efforts attributable to the listing of the species under the Act ( i.e., conservation of the species and its habitat incurred regardless of whether critical habitat is designated). The “with critical habitat” scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species. The incremental conservation efforts and associated impacts would not be expected without the designation of critical habitat for the species. In other words, the incremental costs are those attributable solely to the designation of critical habitat, above and beyond the baseline costs. These are the costs we use when evaluating the benefits of inclusion and exclusion of particular areas from the final designation of critical habitat should we choose to conduct a discretionary section 4(b)(2) exclusion analysis.

Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to assess the costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Executive Order 14094 reaffirms the principles of E.O. 12866 and E.O. 13563 and states that regulatory analysis should facilitate agency efforts to develop regulations that serve the public interest, advance statutory objectives, and are consistent with E.O. 12866, E.O. 13563, and the Presidential Memorandum of January 20, 2021 (Modernizing Regulatory Review). Consistent with the E.O. regulatory analysis requirements, our effects analysis under the Act may take into consideration impacts to both directly and indirectly affected entities, where practicable and reasonable. If sufficient data are available, we assess to the extent practicable the probable impacts to both directly and indirectly affected entities. Section 3(f) of E.O. 12866, as amended by E.O. 14094, identifies four criteria when a regulation is considered a “significant regulatory action” and requires additional analysis, review, and approval if met. The criterion relevant here is whether the designation of critical habitat may have an economic effect of $200 million or more in any given year (section 3(f)(1)). Therefore, our consideration of economic impacts uses a screening analysis to assess whether a designation of critical habitat for the Quitobaquito tryonia is likely to exceed the economically significant threshold.

For this particular designation, we developed an incremental effects memorandum (IEM) considering the probable incremental economic impacts that may result from this proposed designation of critical habitat. The information contained in our IEM was then used to develop a screening analysis of the probable effects of the designation of critical habitat for the Quitobaquito tryonia (IEc 2023, entire). We began by conducting a screening analysis of the proposed designation of critical habitat in order to focus our analysis on the key factors that are likely to result in incremental economic impacts. The purpose of the screening analysis is to filter out particular geographical areas of critical habitat that are already subject to such protections and are, therefore, unlikely to incur incremental economic impacts. In particular, the screening analysis considers baseline costs ( i.e., absent critical habitat designation) and includes any probable incremental economic impacts where land and water use may already be subject to conservation plans, land management plans, best management practices, or regulations that protect the habitat area as a result of the Federal listing status of the species. Ultimately, the screening analysis allows us to focus our analysis on evaluating the specific areas or sectors that may incur probable incremental economic impacts as a result of the designation.

The presence of the listed species in occupied areas of critical habitat means that any destruction or adverse modification of those areas is also likely to jeopardize the continued existence of the species. Therefore, designating occupied areas as critical habitat typically causes little if any incremental impacts above and beyond the impacts of listing the species. As a result, we generally focus the screening analysis on areas of unoccupied critical habitat (unoccupied units or unoccupied areas within occupied units). Overall, the screening analysis assesses whether designation of critical habitat is likely to result in any additional management or conservation efforts that may incur incremental economic impacts. This screening analysis combined with the information contained in our IEM constitute what we consider to be our draft economic analysis (DEA) of the proposed critical habitat designation for the Quitobaquito tryonia; our DEA is summarized in the narrative below.

As part of our screening analysis, we considered the types of economic activities that are likely to occur within the areas likely affected by the critical habitat designation. In our evaluation of the probable incremental economic impacts that may result from the proposed designation of critical habitat for the Quitobaquito tryonia, first we identified, in the IEM dated March 8, 2023, probable incremental economic impacts associated with the following categories of activities: (1) Federal lands management (NPS, Organ Pipe Cactus National Monument); (2) groundwater pumping; and (3) border security operations (U.S. Customs and Border Protection). We considered each industry or category individually. Additionally, we considered whether their activities have any Federal involvement. Critical habitat designation generally will not affect activities that do not have any Federal involvement; under the Act, designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies. If we list the species, in areas where the Quitobaquito tryonia is present, Federal agencies would be required to consult with the Service under section 7 of the Act on activities they authorize, fund, or carry out that may affect the species. If, when we list the species, we also finalize this proposed critical habitat designation, Federal agencies would be required to consider the effects of their actions on the designated habitat, and if the Federal action may affect critical habitat, our consultations would include an evaluation of measures to avoid the destruction or adverse modification of critical habitat.

In our IEM, we attempted to clarify the distinction between the effects that would result from the species being listed and those attributable to the critical habitat designation ( i.e., difference between the jeopardy and adverse modification standards) for the Quitobaquito tryonia's critical habitat. Because the designation of critical habitat for the Quitobaquito tryonia is being proposed concurrently with the listing, it has been our experience that it is more difficult to discern which conservation efforts are attributable to the species being listed and those which would result solely from the designation of critical habitat. However, the following specific circumstances in this case help to inform our evaluation: (1) The essential physical or biological features identified for critical habitat are the same features essential for the life requisites of the species, and (2) any actions that would likely adversely affect the essential physical or biological features of occupied critical habitat are also likely to adversely affect the species itself. The IEM outlines our rationale concerning this limited distinction between baseline conservation efforts and incremental impacts of the designation of critical habitat for this species. This evaluation of the incremental effects has been used as the basis to evaluate the probable incremental economic impacts of this proposed designation of critical habitat.

The proposed critical habitat designation for the Quitobaquito tryonia consists of a single unit with two subunits currently occupied by the species. We are not proposing to designate any units of unoccupied habitat. The proposed Quitobaquito Unit totals 6,095 square feet (566 square meters) and is entirely within federally owned land at Organ Pipe Cactus National Monument. In this area, any actions that may affect the species or its habitat would also affect designated critical habitat, and it is unlikely that there would be any additional recommendations or project modifications to avoid adversely modifying critical habitat above those we would recommend for avoiding jeopardy. Therefore, only administrative costs of conducting any section 7 consultation are expected in all of the proposed critical habitat designation. While this additional analysis will require time and resources by both the Federal action agency and the Service, it is believed that, in most circumstances, these costs would predominantly be administrative in nature and would not be significant.

We estimate that approximately one informal consultation may occur annually in proposed critical habitat areas. Annual incremental costs to the Service, Federal action agencies, and third parties associated with this consultation are anticipated to be approximately $2,600. The designation of critical habitat for the Quitobaquito tryonia, which is located on Federal lands, is not expected to trigger additional requirements under State or local regulations, nor is the designation expected to have perceptional effects on markets. Additional section 7 efforts to conserve the Quitobaquito tryonia are not predicted to result from the designation of critical habitat. As this economic screening analysis finds that the designation is not likely to result in additional or different project modifications, ancillary economic benefits are not anticipated. The above-mentioned administrative costs are highly unlikely to exceed $200 million in a given year.

We are soliciting data and comments from the public on the DEA discussed above. During the development of a final designation, we will consider the information presented in the DEA and any additional information on economic impacts we receive during the public comment period to determine whether any specific areas should be excluded from the final critical habitat designation under authority of section 4(b)(2) of the Act, our implementing regulations at 50 CFR 424.19, and the 2016 Policy. We may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of this species.

Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or areas that pose potential national-security concerns ( e.g., a DoD installation that is in the process of revising its INRMP for a newly listed species or a species previously not covered). If a particular area is not covered under section 4(a)(3)(B)(i), then national-security or homeland-security concerns are not a factor in the process of determining what areas meet the definition of “critical habitat.” However, the Service must still consider impacts on national security, including homeland security, on those lands or areas not covered by section 4(a)(3)(B)(i) because section 4(b)(2) requires the Service to consider those impacts whenever it designates critical habitat. Accordingly, if DoD, Department of Homeland Security (DHS), or another Federal agency has requested exclusion based on an assertion of national-security or homeland-security concerns, or we have otherwise identified national-security or homeland-security impacts from designating particular areas as critical habitat, we generally have reason to consider excluding those areas.

However, we cannot automatically exclude requested areas. When DoD, DHS, or another Federal agency requests exclusion from critical habitat on the basis of national-security or homeland-security impacts, we must conduct an exclusion analysis if the Federal requester provides information, including a reasonably specific justification of an incremental impact on national security that would result from the designation of that specific area as critical habitat. That justification could include demonstration of probable impacts, such as impacts to ongoing border-security patrols and surveillance activities, or a delay in training or facility construction, as a result of compliance with section 7(a)(2) of the Act. If the agency requesting the exclusion does not provide us with a reasonably specific justification, we will contact the agency to recommend that it provide a specific justification or clarification of its concerns relative to the probable incremental impact that could result from the designation. If we conduct an exclusion analysis because the agency provides a reasonably specific justification or because we decide to exercise the discretion to conduct an exclusion analysis, we will defer to the expert judgment of DoD, DHS, or another Federal agency as to: (1) Whether activities on its lands or waters, or its activities on other lands or waters, have national-security or homeland-security implications; (2) the importance of those implications; and (3) the degree to which the cited implications would be adversely affected in the absence of an exclusion. In that circumstance, in conducting a discretionary section 4(b)(2) exclusion analysis, we will give great weight to national-security and homeland-security concerns in analyzing the benefits of exclusion.

In preparing this proposal, we have determined that the lands within the proposed designation of critical habitat for Quitobaquito tryonia are not owned or managed by the DoD or DHS, and, therefore, we anticipate no impact 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. To identify other relevant impacts that may affect the exclusion analysis, 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, or candidate conservation agreements with assurances—or whether there are non-permitted conservation agreements and partnerships that may be impaired by designation of, or exclusion from, critical habitat. In addition, we look at whether Tribal conservation plans or partnerships, Tribal resources, or government-to-government relationships of the United States with Tribal entities may be affected by the designation. We also consider any State, local, social, or other impacts that might occur because of the designation.

In preparing this proposal, we have determined that no HCPs or other management plans for the Quitobaquito tryonia currently exist, and the proposed designation does not include any Tribal lands or trust resources or any lands for which designation would have any economic or national security impacts. Therefore, we anticipate no impact on Tribal lands, partnerships, or HCPs from this proposed critical habitat designation; thus, as described above, we are not considering excluding any particular areas from the designation on the basis of the presence of conservation agreements or impacts to trust resources.

However, if through the public comment period we receive information that we determine indicates that there are potential economic, national security, or other relevant impacts from designating particular areas as critical habitat, then as part of developing the final designation of critical habitat, we will evaluate that information and may conduct a discretionary exclusion analysis to determine whether to exclude those areas under the authority of section 4(b)(2) of the Act and our implementing regulations at 50 CFR 424.19. If we receive a request for exclusion of a particular area and after evaluation of supporting information we do not exclude, we will fully describe our decision in the final rule for this action.

We are required by E.O.s 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(1) Be logically organized;

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

(3) Use clear language rather than jargon;

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

(5) Use lists and tables wherever possible.

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

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

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

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

We have developed this proposed rule in a manner consistent with these requirements.

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq. ), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA; 5 U.S.C. 801 et seq. ), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities ( i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the RFA to require Federal agencies to provide a certification statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities.

According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine whether potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.

Under the RFA, as amended, and as understood in light of recent court decisions, Federal agencies are required to evaluate the potential incremental impacts of rulemaking on those entities directly regulated by the rulemaking itself; in other words, the RFA does not require agencies to evaluate the potential impacts to indirectly regulated entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried out by the agency is not likely to destroy or adversely modify critical habitat. Therefore, under section 7, only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Consequently, it is our position that only Federal action agencies would be directly regulated if we adopt the proposed critical habitat designation. The RFA does not require evaluation of the potential impacts to entities not directly regulated. Moreover, Federal agencies are not small entities. Therefore, because no small entities would be directly regulated by this rulemaking, the Service certifies that, if made final as proposed, the proposed critical habitat designation will not have a significant economic impact on a substantial number of small entities.

In summary, we have considered whether the proposed designation would result in a significant economic impact on a substantial number of small entities. For the above reasons and based on currently available information, we certify that, if made final, the proposed critical habitat designation would not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required.

Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare statements of energy effects when undertaking certain actions. In our economic analysis, we did not find that this proposed critical habitat designation would significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no statement of energy effects is required.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ), we make the following finding:

(1) This proposed rule would not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or Tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or Tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and Tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or Tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”

The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions are not likely to destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.

(2) We do not believe that this rule would significantly or uniquely affect small governments because it will not produce a Federal mandate of $200 million or greater in any year, that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. The designation of critical habitat imposes no obligations on State or local governments. Therefore, a small government agency plan is not required.

In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for the Quitobaquito tryonia in a takings implications assessment. The Act does not authorize the Service to regulate private actions on private lands or confiscate private property as a result of critical habitat designation. Designation of critical habitat does not affect land ownership, or establish any closures, or restrictions on use of or access to the designated areas. Furthermore, the designation of critical habitat does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. However, Federal agencies are prohibited from carrying out, funding, or authorizing actions that would destroy or adversely modify critical habitat. A takings implications assessment has been completed for the proposed designation of critical habitat for the Quitobaquito tryonia, and it concludes that, if adopted, this designation of critical habitat does not pose significant takings implications for lands within or affected by the designation.

In accordance with E.O. 13132 (Federalism), this proposed rule does not have significant Federalism effects. A federalism summary impact statement is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of this proposed critical habitat designation with, appropriate State resource agencies. From a federalism perspective, the designation of critical habitat directly affects only the responsibilities of Federal agencies. The Act imposes no other duties with respect to critical habitat, either for States and local governments, or for anyone else. As a result, the proposed rule does not have substantial direct effects either on the States, or on the relationship between the Federal government and the States, or on the distribution of powers and responsibilities among the various levels of government. The proposed designation may have some benefit to these governments because the areas that contain the features essential to the conservation of the species are more clearly defined, and the physical or biological features of the habitat necessary for the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist State and local governments in long-range planning because they no longer have to wait for case-by-case section 7 consultations to occur.

Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) of the Act would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.

In accordance with E.O. 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule would not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. We have proposed designating critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the species, this proposed rule identifies the physical or biological features essential to the conservation of the species. The proposed areas of critical habitat is presented on a map, and the proposed rule provides several options for the interested public to obtain more detailed location information, if desired.

This rule does not contain information collection requirements, and a submission to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) is not required. We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number.

Regulations adopted pursuant to section 4(a) of the Act are exempt from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq. ) and do not require an environmental analysis under NEPA. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This includes listing, delisting, and reclassification rules, as well as critical habitat designations. In a line of cases starting with Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), the courts have upheld this position.

In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), E.O. 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 Secretaries' Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that Tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes. We have determined that no Tribal lands fall within the boundaries of the proposed critical habitat for the Quitobaquito tryonia, so no Tribal lands would be affected by the proposed designation.

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

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

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

What is the List of Fisheries?

Section 118 of the MMPA requires NMFS to place all U.S. commercial fisheries into one of three categories based on the level of incidental mortality and serious injury of marine mammals occurring in each fishery (16 U.S.C. 1387(c)(1)). The classification of a fishery on the LOF determines whether participants in that fishery may be required to comply with certain provisions of the MMPA, such as those on registration, observer coverage, and take reduction plan requirements. NMFS must reexamine the LOF annually, considering new information in the Marine Mammal Stock Assessment Reports (SARs) and other relevant sources, and publish in the Federal Register any necessary changes to the LOF after notice and opportunity for public comment (16 U.S.C. 1387 (c)(1)(C)).

The definitions for the fishery classification criteria can be found in the implementing regulations for section 118 of the MMPA (50 CFR 229.2). The criteria are also summarized here.

The fishery classification criteria consist of a two-tiered, stock-specific approach that first addresses the total impact of all fisheries on each marine mammal stock and then addresses the impact of individual fisheries on each stock. This approach is based on consideration of the rate, in numbers of animals per year, of incidental mortalities and serious injuries of marine mammals due to commercial fishing operations relative to the potential biological removal (PBR) level for each marine mammal stock. The MMPA (16 U.S.C. 1362 (20)) defines the PBR level as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock, while allowing that stock to reach or maintain its optimum sustainable population. This definition can also be found in the implementing regulations for section 118 of the MMPA (50 CFR 229.2).

Tier 1: Tier 1 considers the cumulative fishery mortality and serious injury for a particular stock. If the total annual mortality and serious injury of a marine mammal stock, across all fisheries, is less than or equal to 10 percent of the PBR level of the stock, all fisheries interacting with the stock will be placed in Category III (unless those fisheries interact with other stock(s) for which total annual mortality and serious injury is greater than 10 percent of PBR). Otherwise, these fisheries are subject to the next tier (Tier 2) of analysis to determine their classification.

Tier 2: Tier 2 considers fishery-specific mortality and serious injury for a particular stock.

Category I: Annual mortality and serious injury of a stock in a given fishery is greater than or equal to 50 percent of the PBR level ( i.e., frequent incidental mortality and serious injury of marine mammals).

Category II: Annual mortality and serious injury of a stock in a given fishery is greater than 1 percent and less than 50 percent of the PBR level ( i.e., occasional incidental mortality and serious injury of marine mammals).

Category III: Annual mortality and serious injury of a stock in a given fishery is less than or equal to 1 percent of the PBR level ( i.e., a remote likelihood of or no known incidental mortality and serious injury of marine mammals).

Additional details regarding how the categories were determined are provided in the preamble to the final rule implementing section 118 of the MMPA (60 FR 45086, August 30, 1995).

Because fisheries are classified on a per-stock basis, a fishery may qualify as one category for one marine mammal stock and another category for a different marine mammal stock. A fishery is typically classified on the LOF at its highest level of classification ( e.g., a fishery qualifying for Category III for one marine mammal stock and for Category II for another marine mammal stock will be listed under Category II). Stocks driving a fishery's classification are denoted with a superscript “1” in tables 1 and 2.

The tier analysis requires a minimum amount of data, and NMFS does not have sufficient data to perform a tier analysis on certain fisheries. Therefore, NMFS has classified certain fisheries by analogy to other fisheries that use similar fishing techniques or gear that are known to cause mortality or serious injury of marine mammals, or according to factors discussed in the final LOF for 1996 (60 FR 67063, December 28, 1995) and listed in the regulatory definition of a Category II fishery. In the absence of reliable information indicating the frequency of incidental mortality and serious injury of marine mammals by a commercial fishery, NMFS will determine whether the incidental mortality or serious injury is “occasional” by evaluating other factors such as fishing techniques, gear used, methods used to deter marine mammals, target species, seasons and areas fished, qualitative data from logbooks or fishermen reports, stranding data, and the species and distribution of marine mammals in the area, or at the discretion of the Assistant Administrator for Fisheries (50 CFR 229.2).

Further, eligible commercial fisheries not specifically identified on the LOF are deemed to be Category II fisheries until the next LOF is published (50 CFR 229.2).

The LOF includes a list of marine mammal species and/or stocks incidentally killed or injured in each commercial fishery. The list of species and/or stocks incidentally killed or injured includes “serious” and “non-serious” documented injuries as described later in the List of Species and/or Stocks Incidentally Killed or Injured in the Pacific Ocean and List of Species and/or Stocks Incidentally Killed or Injured in the Atlantic Ocean, Gulf of Mexico, and Caribbean sections. To determine which species or stocks are included as incidentally killed or injured in a fishery, NMFS annually reviews the information presented in the current SARs and injury determination reports. SARs are brief reports summarizing the status of each stock of marine mammals occurring in waters under U.S. jurisdiction, including information on the identity and geographic range of the stock, population statistics related to abundance, trend, and annual productivity, notable habitat concerns, and estimates of human-caused mortality and serious injury (M/SI) by source. The SARs are based upon the best available scientific information and provide the most current and inclusive information on each stock's PBR level and level of interaction with commercial fishing operations. The best available scientific information used in the SARs and reviewed for the 2024 LOF generally summarizes data from 2016-2020. NMFS also reviews other sources of new information, including injury determination reports, bycatch estimation reports, observer data, logbook data, stranding data, disentanglement network data, fishermen self-reports ( i.e., MMPA mortality/injury reports), and anecdotal reports from that time period. In some cases, more recent information may be available and used in the LOF.

For fisheries with observer coverage, species or stocks are generally removed from the list of marine mammal species and/or stocks incidentally killed or injured if no interactions are documented in the five-year timeframe summarized in that year's LOF. For fisheries with no observer coverage and for observed fisheries with evidence indicating that undocumented interactions may be occurring ( e.g., fishery has low observer coverage and stranding network data include evidence of fisheries interactions that cannot be attributed to a specific fishery), species and stocks may be retained for longer than five years. For these fisheries, NMFS will review the other sources of information listed above and use its discretion to decide when it is appropriate to remove a species or stock.

The best available information on the level of observer coverage and the spatial and temporal distribution of observed marine mammal interactions is presented in the SARs. Data obtained from the observer program and observer coverage levels are important tools in estimating the level of marine mammal mortality and serious injury in commercial fishing operations. Starting with the 2005 SARs, each Pacific and Alaska SAR includes an appendix with detailed descriptions of each Category I and II fishery on the LOF, including the observer coverage in those fisheries. For Atlantic fisheries, this information can be found in the LOF Fishery Fact Sheets. The SARs do not provide detailed information on observer coverage in Category III fisheries because, under the MMPA, Category III fisheries are not required to accommodate observers aboard vessels due to the remote likelihood of mortality and serious injury of marine mammals. Fishery information presented in the SARs' appendices and other resources referenced during the tier analysis may include: level of observer coverage; target species; levels of fishing effort; spatial and temporal distribution of fishing effort; characteristics of fishing gear and operations; management and regulations; and interactions with marine mammals. Copies of the SARs are available on the NMFS Office of Protected Resources website at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region. Information on observer coverage levels in Category I, II, and III fisheries can be found in the fishery fact sheets on the NMFS Office of Protected Resources' website: https://www.fisheries.noaa.gov/national/marine-mammal-protection/list-fisheries-summary-tables. Additional information on observer programs in commercial fisheries can be found on the NMFS National Observer Program's website: https://www.fisheries.noaa.gov/national/fisheries-observers/national-observer-program.

The LOF includes three tables that list all U.S. commercial fisheries by Category. table 1 lists all of the commercial fisheries in the Pacific Ocean (including Alaska); table 2 lists all of the commercial fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean; and table 3 lists all U.S. authorized commercial fisheries on the high seas. A fourth table, table 4, lists all commercial fisheries managed under applicable TRPs or take reduction teams (TRT).

Beginning with the 2009 LOF, NMFS includes high seas fisheries in table 3 of the LOF, along with the number of valid High Seas Fishing Compliance Act (HSFCA) permits in each fishery. As of 2004, NMFS issues HSFCA permits only for high seas fisheries analyzed in accordance with the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). The authorized high seas fisheries are broad in scope and encompass multiple specific fisheries identified by gear type. For the purposes of the LOF, the high seas fisheries are subdivided based on gear type ( e.g., trawl, longline, purse seine, gillnet, troll, etc. ) to provide more detail on composition of effort within these fisheries. Many fisheries operate in both U.S. waters and on the high seas, creating some overlap between the fisheries listed in tables 1 and 2 and those in table 3. In these cases, the high seas component of the fishery is not considered a separate fishery, but an extension of a fishery operating within U.S. waters (listed in table 1 or 2). NMFS designates those fisheries in tables 1, 2, and 3 with an asterisk (*) after the fishery's name. The number of HSFCA permits listed in table 3 for the high seas components of these fisheries operating in U.S. waters does not necessarily represent additional effort that is not accounted for in tables 1 and 2. Many vessels/participants holding HSFCA permits also fish within U.S. waters and are included in the number of vessels and participants operating within those fisheries in tables 1 and 2.

HSFCA permits are valid for 5 years, during which time Fishery Management Plans (FMPs) can change. Therefore, some vessels/participants may possess valid HSFCA permits without the ability to fish under the permit because it was issued for a gear type that is no longer authorized under the most current FMP. For this reason, the number of HSFCA permits displayed in table 3 is likely higher than the actual U.S. fishing effort on the high seas. For more information on how NMFS classifies high seas fisheries on the LOF, see the preamble text in the final 2009 LOF (73 FR 73032, December 1, 2008). Additional information about HSFCA permits can be found at https://www.fisheries.noaa.gov/permit/high-seas-fishing-permits.

Starting with the 2010 LOF, NMFS developed summary documents, or fishery fact sheets, for each Category I and II fishery on the LOF. These fishery fact sheets provide the full history of each Category I and II fishery, including: (1) when the fishery was added to the LOF; (2) the basis for the fishery's initial classification; (3) classification changes to the fishery; (4) changes to the list of species and/or stocks incidentally killed or injured in the fishery; (5) fishery gear and methods used; (6) observer coverage levels; (7) fishery management and regulation; and (8) applicable TRPs or TRTs, if any. These fishery fact sheets are updated after each final LOF and can be found under “How Do I Find Out if a Specific Fishery is in Category I, II, or III?” on the NMFS Office of Protected Resources' website: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-protection-act-list-fisheries, linked to the “List of Fisheries Summary” table. NMFS is developing similar fishery fact sheets for each Category III fishery on the LOF. However, due to the large number of Category III fisheries on the LOF and the lack of accessible and detailed information on many of these fisheries, the development of these fishery fact sheets is taking significant time to complete. NMFS began posting Category III fishery fact sheets online with the LOF for 2016.

Owners of vessels or gear engaging in a Category I or II fishery are required under the MMPA (16 U.S.C. 1387(c)(2)), as described in 50 CFR 229.4, to register with NMFS and obtain a marine mammal authorization to lawfully take marine mammals incidental to commercial fishing operations. The take of threatened or endangered marine mammals requires an additional authorization. Owners of vessels or gear engaged in a Category III fishery are not required to register with NMFS or obtain a marine mammal authorization.

NMFS has integrated the MMPA registration process, implemented through the Marine Mammal Authorization Program (MMAP), with existing state and Federal fishery license, registration, or permit systems for Category I and II fisheries on the LOF. Participants in these fisheries are automatically registered under the MMAP and are not required to submit registration or renewal materials.

In the Pacific Islands, West Coast, and Alaska regions, NMFS will issue vessel or gear owners an authorization certificate via U.S. mail or with their state or Federal license or permit at the time of issuance or renewal. In the Southeast Region, NMFS will issue vessel or gear owners an authorization certificate via U.S. mail automatically at the beginning of each calendar year. In the Greater Atlantic Region, NMFS will issue vessel or gear owners an authorization certificate electronically. The certificate can be downloaded and/or printed at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-authorization-program#obtaining-a-marine-mammal-authorization-certificate. Printed copies can be mailed upon request by contacting nmfs.gar.mmapcert@noaa.gov or 978-281-9120.

Vessel or gear owners who participate in fisheries in these regions and have not received authorization certificates by the beginning of the calendar year, or with renewed fishing licenses, must contact the appropriate NMFS Regional Office (see FOR FURTHER INFORMATION CONTACT ). Authorization certificates may also be obtained by visiting the MMAP website https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-authorization-program#obtaining-a-marine-mammal-authorization-certificate.

The authorization certificate, or a copy, must be on board the vessel while it is operating in a Category I or II fishery, or for non-vessel fisheries, in the possession of the person in charge of the fishing operation (50 CFR 229.4(e)). Although efforts are made to limit the issuance of authorization certificates to only those vessel or gear owners that participate in Category I or II fisheries, not all state and Federal license or permit systems distinguish between fisheries as classified by the LOF. Therefore, some vessel or gear owners in Category III fisheries may receive authorization certificates even though they are not required for Category III fisheries.

Individuals fishing in Category I and II fisheries for which no state or Federal license or permit is required must register with NMFS by contacting their appropriate Regional Office (see ADDRESSES ).

In accordance with the MMPA (16 U.S.C. 1387(e)) and 50 CFR 229.6, any vessel owner or operator, or gear owner or operator (in the case of non-vessel fisheries), participating in a fishery listed on the LOF must report to NMFS all incidental mortalities and injuries of marine mammals that occur during commercial fishing operations, regardless of the category in which the fishery is placed (I, II, or III) within 48 hours of the end of the fishing trip or, in the case of non-vessel fisheries, fishing activity. “Injury” is defined in 50 CFR 229.2 as a wound or other physical harm. In addition, any animal that ingests fishing gear or any animal that is released with fishing gear entangling, trailing, or perforating any part of the body is considered injured, regardless of the presence of any wound or other evidence of injury, and must be reported.

Mortality/injury reporting forms and instructions for submitting forms to NMFS can be found at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-authorization-program#reporting-a-death-or-injury-of-a-marine-mammal-during-commercial-fishing-operations or by contacting the appropriate regional office (see FOR FURTHER INFORMATION CONTACT ). Forms may be submitted via any of the following means: (1) online using the electronic form; (2) emailed as an attachment to nmfs.mireport@noaa.gov; (3) faxed to the NMFS Office of Protected Resources at 301-713-0376; or (4) mailed to the NMFS Office of Protected Resources (mailing address is provided on the postage-paid form that can be printed from the web address listed above). Reporting requirements and procedures are found in 50 CFR 229.6.

Individuals participating in a Category I or II fishery are required to accommodate an observer aboard their vessel(s) upon request from NMFS. MMPA section 118 states that the Secretary is not required to place an observer on a vessel if the facilities for quartering an observer or performing observer functions are so inadequate or unsafe that the health or safety of the observer or the safe operation of the vessel would be jeopardized; thereby authorizing the exemption of vessels too small to safely accommodate an observer from this requirement. Observer requirements are found in 50 CFR 229.7.

Table 4 provides a list of fisheries affected by TRPs and TRTs. TRP regulations are found at 50 CFR 229.30 through 229.37. A description of each TRT and copies of each TRP can be found at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-take-reduction-plans-and-teams. It is the responsibility of fishery participants to comply with applicable take reduction regulations.

Information regarding the LOF and the MMAP, including registration procedures and forms; current and past LOFs; descriptions of each Category I and II fishery and some Category III fisheries; observer requirements; and marine mammal mortality/injury reporting forms and submittal procedures; may be obtained at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-protection-act-list-fisheries, or from any NMFS Regional Office at the addresses listed below:

NMFS, Greater Atlantic Regional Fisheries Office, 55 Great Republic Drive, Gloucester, MA 01930-2298, Attn: Cheryl Cross;

NMFS, Southeast Region, 263 13th Avenue South, St. Petersburg, FL 33701, Attn: Jessica Powell;

NMFS, West Coast Region, Long Beach Office, 501 W Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213, Attn: Dan Lawson;

NMFS, Alaska Region, Protected Resources, P.O. Box 22668, 709 West 9th Street, Juneau, AK 99802, Attn: Suzie Teerlink; or

NMFS, Pacific Islands Regional Office, Protected Resources Division, 1845 Wasp Blvd., Building 176, Honolulu, HI 96818, Attn: Elena Duke.

NMFS reviewed the marine mammal incidental mortality and serious injury information presented in the SARs for all fisheries to determine whether changes in fishery classification are warranted. The SARs are based on the best scientific information available at the time of preparation, including the level of mortality and serious injury of marine mammals that occurs incidental to commercial fishery operations and the PBR levels of marine mammal stocks. The information contained in the SARs is reviewed by regional Scientific Review Groups (SRGs) representing Alaska, the Pacific (including Hawaii), and the U.S. Atlantic, Gulf of Mexico, and Caribbean. The SRGs were established by the MMPA to review the science that informs the SARs, and to advise NMFS on marine mammal population status, trends, and stock structure; uncertainties in the science, research needs, and other issues.

NMFS also reviewed other sources of new information, including marine mammal stranding and entanglement data, observer program data, fishermen self-reports, reports to the SRGs, conference papers, FMPs, and ESA documents.

The LOF for 2024 was based on, among other things, stranding data; fishermen self-reports; and SARs, primarily the 2022 SARs, which are based on data from 2016-2020. The SARs referenced in this LOF include: 2021 (87 FR 47385, August 3, 2022) and 2022 (88 FR 54592, August 11, 2023). The SARs are available at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region.

As information on risks to marine mammals from aquaculture remains limited, NMFS is soliciting public comment to inform how we evaluate the potential risk to marine mammals from aquaculture operations for future LOFs. Specifically, we are requesting information on the following in both state and Federal waters in the Atlantic, Caribbean and Pacific:

1. Incidences of marine mammal interactions with aquaculture gear, including details of where and when these interactions occurred, the gear type(s) involved, and whether or not mortality and/or injury occurred.

2. Gear characteristics, operational practices used ( e.g., anchoring systems, deterrence technologies to avoid interactions), and temporal and spatial variation in aquaculture operations.

3. Practical ways of grouping different aquaculture gears into a single fishery, such as grouping according to regional differences and/or operational and/or gear characteristics ( e.g., if similar gears are used to farm shellfish and macroalgae, both target species should be listed under the same fishery).

4. How integrated multi-trophic aquaculture (the cooperative cultivation of multiple organisms occupying different trophic levels) should be characterized. For example, whether multi-trophic aquaculture should be classified holistically as a separate fishery, or by the gear type that presents the highest risk amongst the gear types that are being used.

The following summarizes changes to the LOF for 2024, including the classification of fisheries, fisheries listed, the estimated number of vessels/persons in a particular fishery, and the species and/or stocks that are incidentally killed or injured in a particular fishery. In the 2022 Pacific and Alaska SARs, stock structure for humpback whales and the Southeast Alaska harbor porpoise were revised, respectively. The three existing North Pacific humpback whale stocks (Central North Pacific, Western North Pacific and CA/OR/WA) were replaced by five stocks: (1) Western North Pacific, (2) Hawai'i, (3) Mexico-North Pacific, (4) Central America/Southern Mexico CA/OR/WA and (5) Mainland Mexico-CA/OR/WA (Young et al., 2023, Carretta et al., 2023). The Southeast Alaska harbor porpoise stock was revised and split into three stocks: (1) the Northern Southeast Alaska inland waters, (2) Southern Southeast Alaska inland waters, and (3) Yakutat/Southeast Alaska offshore waters (Young et al., 2023). Changes to the LOF for 2024 based on these revised stock structures are summarized below.

NMFS adds one fishery, removes six fisheries and reclassifies four fisheries in the LOF for 2024. NMFS also makes changes to the estimated number of vessels/persons and list of species and/or stocks killed or injured in certain fisheries. The classifications and definitions of U.S. commercial fisheries for 2024 are identical to those provided in the LOF for 2023, except for the changes discussed below. State and regional abbreviations used in the following paragraphs include: AK (Alaska), CA (California), FL (Florida), GA (Georgia), HI (Hawaii), NC (North Carolina), OR (Oregon), SC (South Carolina), WA (Washington) and WNA (Western North Atlantic).

NMFS proposes to reclassify the Category II AK Southeast salmon drift gillnet fishery to a Category I fishery based on M/SI of the Southern Southeast Alaska inland waters stock of harbor porpoise. Mean annual estimated M/SI of the Southern Southeast Alaska inland waters stock of harbor porpoise in the AK Southeast salmon drift gillnet fishery is 7.4 which is 121 percent of the stock's PBR (6.1) (Young et al., 2023). Therefore, because the estimated M/SI is greater than or equal to 50 percent of PBR (Tier 2 analysis), NMFS proposes to reclassify the AK Southeast salmon drift gillnet fishery from a Category II to a Category I fishery.

NMFS proposes to reclassify the Category II CA Dungeness crab pot fishery to a Category I fishery based on M/SI of the Central America/Southern Mexico-CA/OR/WA stock of humpback whale. Mean annual estimated M/SI of the Central America/Southern Mexico-CA/OR/WA stock of humpback whale is 2.01 which is 57 percent of the stock's PBR (3.5 whales) (Carretta et al., 2023). Therefore, because the estimated M/SI is greater than or equal to 50 percent of PBR, NMFS proposes to reclassify the CA Dungeness crab pot fishery from a Category II to a Category I fishery.

NMFS proposes to reclassify the Category II AK Bering Sea, Aleutian Islands Pacific cod pot fishery to a Category III fishery. The Category II classification of this fishery was based on the mean annual estimated M/SI of the Western North Pacific stock of humpback whale. Total annual fishery M/SI for the Western North Pacific stock of humpback whale is 0.012 and PBR for the stock is 0.2 (Young et al., 2023). A Tier 1 analysis indicates total annual M/SI for the Western North Pacific stock of humpback whale is six percent of PBR. Therefore, since total cumulative fishery M/SI is less than 10 percent for the Western North Pacific stock of humpback whale and no other stocks are driving the Category II classification of this fishery, NMFS proposes to reclassify the AK Bering Sea, Aleutian Islands Pacific cod pot fishery to a Category III fishery.

NMFS proposes to combine the Category III AK Dungeness crab fishery with the Category III AK miscellaneous invertebrates handpick fishery. These two fisheries are prosecuted in the same way and generally at the same time.

NMFS proposes to remove the Category III AK roe herring and food/bait herring beach seine fishery from the LOF because there are no participants in this fishery.

NMFS proposes to remove the Category III AK state-managed waters of Prince William Sound groundfish trawl fishery. This fishery is included in the Category III AK Gulf of Alaska trawl fisheries.

NMFS proposes to remove the Category III AK Bering Sea, Aleutian Islands groundfish hand troll and dinglebar troll fishery from the LOF because there are no participants in this fishery.

NMFS proposes to remove the Category III AK herring spawn on kelp dive hand/mechanical collection fishery from the LOF because there are no participants in this fishery.

NMFS proposes to add the superscript “1” to the southern Southeast Alaska inland waters stocks of harbor porpoise to indicate the stock is driving the Category I classification of the AK Southeast salmon drift gillnet fishery.

NMFS proposes to add the superscript “1” to the Central America/Southern Mexico-CA/OR/WA stocks of humpback whale to indicate the stock is driving the Category I classification of the CA Dungeness crab pot fishery. NMFS also proposes to remove the superscript “1” from Eastern North Pacific stock of blue whale to indicate the stock is not driving the Category I classification of the CA Dungeness crab pot fishery.

NMFS proposes to remove the superscript “1” from the CA/OR/WA stock of minke whale to indicate the stock is no longer driving the Category II classification of the CA thresher shark/swordfish drift gillnet (≥14 inch (in) mesh) fishery.

NMFS proposes to add the superscript “1” to the Central America/Southern Mexico-CA/OR/WA stock of humpback whale to indicate the stock is driving the Category II classification of the CA halibut/white seabass and other species set gillnet (>3.5 in mesh) fishery.

NMFS proposes to add the superscript “2” to the Category II AK Cook Inlet salmon set gillnet fishery to indicate this fishery is classified by analogy. This fishery was originally classified by analogy to other Category II Alaska gillnet fisheries on the 1996 LOF (60 FR 67063, December 28, 1995).

NMFS proposes to remove the superscript “2” from the Category II AK Yakutat salmon set gillnet fishery to indicate this fishery is not classified by analogy to other Category II gillnet fisheries. Alaska marine mammal observer program (AMMOP) bycatch data is used to estimate incidental M/SI in this fishery. NMFS also proposes to add the superscript “1” to the Yakutat/Southeast Alaska offshore waters stock of harbor porpoise to indicate the stock is driving the Category II classification of the AK Yakutat salmon set gillnet fishery.

NMFS proposes to remove the superscript “1” from both the Eastern North Pacific Alaska resident stock of killer whale and Western North Pacific stock of humpback whale to indicate the stocks are no longer driving the Category II classification of the AK Bering Sea, Aleutian Islands flatfish trawl fishery.

NMFS proposes to add the superscript “1” to the Central America/Southern Mexico-CA/OR/WA stock of humpback whale to indicate the stock is driving the Category II classification of the CA coonstripe shrimp pot fishery.

NMFS proposes to add the superscript “1” to the Central America/Southern Mexico-CA/OR/WA stock of humpback whale to indicate the stock is driving the Category II classification of the CA spiny lobster fishery.

NMFS proposes to add the superscript “1” to the Central America/Southern Mexico-CA/OR/WA stock of humpback whale to indicate the stock is driving the Category II classification of the CA spot prawn pot fishery.

NMFS proposes to add the superscript “1” to the Central America/Southern Mexico-CA/OR/WA stock of humpback whale to indicate the stock is driving the Category II classification of the OR Dungeness crab pot fishery.

NMFS proposes to add the superscript “1” to both the Central America/Southern Mexico-CA/OR/WA and Mainland Mexico-CA/OR/WA stocks of humpback whale to indicate the stocks are driving the Category II classification of the WA/OR/CA sablefish pot fishery.

NMFS proposes to add the superscript “1” to the Central America/Southern Mexico-CA/OR/WA stock of humpback whale to indicate the stock is driving the Category II classification of the WA coastal Dungeness crab pot fishery.

NMFS proposes to add the superscript “1” to the North Pacific stock of sperm whale to indicate the stock is driving the Category II classification of the AK Gulf of Alaska sablefish longline fishery.

NMFS proposes to update the estimated number of vessels/persons in the Pacific Ocean (table 1) as follows:

• HI deep-set longline fishery from 150 to 146 vessels/persons;

• AK Southeast salmon drift gillnet fishery from 474 to 371 vessels/persons;

• AK Bristol Bay salmon drift gillnet fishery from 1,862 to 1,521 vessels/persons;

• AK Bristol Bay salmon set gillnet fishery from 979 to 855 vessels/persons;

• AK Kodiak salmon set gillnet fishery from 188 to 128 vessels/persons;

• AK Cook Inlet salmon set gillnet fishery from 736 to 479 vessels/persons;

• AK Cook Inlet salmon drift gillnet fishery from 569 to 355 vessels/persons;

• AK Peninsula/Aleutian Islands salmon drift gillnet fishery from 162 to 148 vessels/persons;

• AK Peninsula/Aleutian Islands salmon set gillnet fishery from 113 to 75 vessels/persons;

• AK Prince William Sound salmon drift gillnet fishery from 537 to 483 vessels/persons;

• AK Yakutat salmon set gillnet fishery from 168 to 95 vessels/persons;

• AK Bering Sea, Aleutian Islands flatfish trawl fishery from 32 to 29 vessels/persons;

• AK Bering Sea, Aleutian Islands pollock trawl fishery from 102 to 116 vessels/persons;

• AK Gulf of Alaska sablefish longline fishery from 295 to 177 vessels/persons;

• American Samoa longline fishery from 18 to 11 vessels/persons;

• HI shortline fishery from 11 to 8 vessels/persons;

• AK Kuskokwim, Yukon, Norton Sound, Kotzebue salmon gillnet fishery from 1,778 to 360 vessels/persons;

• AK Prince William Sound salmon set gillnet fishery from 29 to 25 vessels/persons;

• AK roe herring and food/bait herring gillnet fishery from 920 to 15 vessels/persons;

• HI inshore gillnet fishery form 27 to 26 vessels/persons;

• AK Cook Inlet salmon purse seine fishery from 83 to 16 vessels/persons;

• AK Kodiak salmon purse seine fishery from 376 to 159 vessels/persons;

• AK Southeast salmon purse seine fishery from 315 to 206 vessels/persons;

• AK roe herring and food/bait herring purse seine fishery from 356 to 31 vessels/persons;

• AK salmon beach seine fishery from 31 to 2 vessels/persons;

• AK salmon purse seine (Prince William Sound, Chignik, Alaska Peninsula) fishery from 936 to 298 vessels/persons;

• HI throw net, cast net fishery from 16 to 13 vessels/persons;

• HI seine net fishery from 16 to 17 vessels/persons;

• AK Gulf of Alaska groundfish hand troll and dinglebar troll fishery from unknown to 4 vessels/persons;

• AK salmon troll fishery from 1,908 to 850 vessels/persons;

• American Samoa tuna troll fishery from 3 to 6 vessels/persons;

• HI troll fishery from 1,293 to 1,124 vessels/persons;

• HI rod and reel fishery from 246 to 235 vessels/persons;

• Guam tuna troll fishery from 465 to 450 vessels/persons;

• AK Bering Sea, Aleutian Islands Pacific cod longline fishery from 45 to 26 vessels/persons;

• AK Bering Sea, Aleutian Islands sablefish longline fishery from 22 to 8 vessels/persons;

• AK Bering Sea, Aleutian Islands halibut longline fishery from 127 to 84 vessels/persons;

• AK Gulf of Alaska halibut longline fishery from 855 to 689 vessels/persons;

• AK Gulf of Alaska Pacific cod longline fishery from 92 to 23 vessels/persons;

• AK octopus/squid longline fishery from 3 to 0 vessels/persons;

• HI kaka line fishery from 16 to 17 vessels/persons;

• HI vertical line fishery from 5 to 6 vessels/persons;

• AK Bering Sea, Aleutian Islands Atka mackerel trawl fishery from 13 to 17 vessels/persons;

• AK Bering Sea, Aleutian Islands Pacific cod trawl fishery from 72 to 64 vessels/persons;

• AK Bering Sea, Aleutian Islands rockfish trawl fishery from 17 to 22 vessels/persons;

• AK Gulf of Alaska flatfish trawl fishery from 36 to 16 vessels/persons;

• AK Gulf of Alaska Pacific cod trawl fishery from 55 to 12 vessels/persons;

• AK Gulf of Alaska pollock trawl fishery from 67 to 60 vessels/persons;

• AK Gulf of Alaska rockfish trawl fishery from 43 to 35 vessels/persons;

• AK Kodiak food/bait herring otter trawl fishery from 4 to 0 vessels/persons;

• AK shrimp otter trawl and beam trawl fishery from 38 to 12 vessels/persons;

• AK Bering Sea, Aleutian Islands Pacific cod pot fishery from 59 to 80 vessels/persons;

• AK Bering Sea, Aleutian Islands sablefish pot fishery from 16 to 15 vessels/persons;

• AK Bering Sea, Aleutian Islands crab pot fishery from 540 to 73 vessels/persons;

• AK Gulf of Alaska crab pot fishery from 271 to 86 vessels/persons;

• AK Gulf of Alaska Pacific cod pot fishery from 116 to 48 vessels/persons;

• AK Gulf of Alaska sablefish pot fishery from 248 to 129 vessels/persons;

• AK Southeast Alaska shrimp pot fishery from 99 to 104 vessels/persons;

• AK shrimp pot, except Southeast fishery from 141 to 77 vessels/persons;

• AK octopus/squid pot fishery from 15 to 0 vessels/persons;

• HI crab trap fishery from 3 to 4 vessels/persons;

• HI crab net fishery from 3 to 4 vessels/persons;

• HI Kona crab loop net fishery from 24 to 13 vessels/persons;

• American Samoa bottomfish fishery from 46 to 44 vessels/persons;

• Commonwealth of the Northern Mariana Islands bottomfish fishery from 12 to 7 vessels/persons;

• Guam bottomfish fishery from 84 to 63 vessels/persons;

• HI bottomfish handline fishery from 404 to 382 vessels/persons;

• HI inshore handline fishery from 182 to 158 vessels/persons;

• HI pelagic handline fishery from 311 to 271 vessels/persons;

• AK Gulf of Alaska groundfish jig fishery from 214 to 68 vessels/persons;

• AK halibut jig fishery from 71 to 5 vessels/persons;

• AK herring spawn on kelp pound net fishery from 291 to 143 vessels/persons;

• AK Southeast herring roe/food/bait pound net fishery from 2 to 1 vessels/persons;

• AK clam fishery from 130 to 57 vessels/persons;

• AK miscellaneous invertebrates handpick fishery from 214 to 188 vessels/persons;

• HI black coral diving fishery from less than 3 to none recorded;

• HI handpick fishery from 28 to 25 vessels/persons;

• HI lobster diving fishery from 10 to 12 vessels/persons;

• HI spearfishing fishery from 79 to 67 vessels/persons, and

• HI aquarium collecting fishery from 39 to none recorded.

NMFS proposes to add the Beringia stock of bearded seal to the list of species/stocks incidentally killed or injured in the Category II AK Bering Sea, Aleutian Islands pollock trawl fishery based on an observed mortality in 2020 (Freed et al., 2022).

NMFS proposes to add the U.S. stock of California sea lion to the list of species/stocks incidentally killed or injured in the Category III CA sea cucumber trawl fishery based on an observed mortality in 2019 (Carretta et al., In Review).

NMFS proposes to remove the Hawaii stock of striped dolphin from the list of species/stocks incidentally killed or injured in the Category I HI deep-set longline fishery. This fishery is consistently monitored through an observer program. From 2016-2020, there have been no reported or observed M/SI within the EEZ in the HI deep-set longline fishery (Carretta et al., 2023).

NMFS proposes to remove the Hawaii stock of fin whale and Central North Pacific stock of humpback whale from the list of species/stocks incidentally killed or injured in the Category II HI shallow-set longline fishery. This fishery has 100 percent observer coverage, and from 2016-2020, there have been no reported or observed M/SI within the EEZ in the HI shallow-set longline fishery (Carretta et al., 2023).

NMFS proposes to revise marine mammal stock names on the list of species/stocks incidentally killed or injured for consistency with the current stock names in the SARs as follows:

• Harbor seal, Bering Sea to harbor seal, Bristol Bay; and

• Northern elephant seal, California to Northern elephant seal, California breeding.

NMFS proposes to update the harbor porpoise stocks on the list of species/stocks incidentally killed or injured based on the revised stock structures in the 2022 SAR (Young et al., 2023) as follows:

• Harbor porpoise, southeast Alaska to harbor porpoise, southern Southeast Alaska inland waters and harbor porpoise, northern Southeast Alaska inland waters, and

• Harbor porpoise, southeast Alaska to harbor porpoise, Yakutat/Southeast Alaska offshore waters.

NMFS proposes to update the humpback whale stocks on the list of species/stocks incidentally killed or injured based on the revised stock structures in the 2022 SAR (Carretta et al., 2023; Young et al., 2023) as follows:

• Humpback whale, Central North Pacific to humpback whale, Hawai'i and humpback whale, Mexico-North Pacific;

• Humpback whale, CA/OR/WA to humpback whale, Central America/Southern Mexico-CA/OR/WA and humpback whale, Mainland Mexico-CA/OR/WA stock;

• Humpback whale, CA/OR/WA to humpback whale, Central America/Southern Mexico-CA/OR/WA and humpback whale, Mainland Mexico-CA/OR/WA stock;

• Humpback whale, Central North Pacific to humpback whale, Hawai'i and humpback whale, Mexico-North Pacific;

• Humpback whale, Central North Pacific to humpback whale, Hawai'i and humpback whale, Mexico-North Pacific;

• Humpback whale, Central North Pacific to humpback whale, Hawai'i and humpback whale, Mexico-North Pacific;

• Humpback whale, Central North Pacific to humpback whale, Hawai'i and humpback whale, Mexico-North Pacific;

• Humpback whale, Central North Pacific to humpback whale, Hawai'i and humpback whale, Mexico-North Pacific;

• Humpback whale, CA/OR/WA to humpback whale, Central America/Southern Mexico-CA/OR/WA and humpback whale, Mainland Mexico-CA/OR/WA stock;

• Humpback whale, CA/OR/WA to humpback whale, Central America/Southern Mexico-CA/OR/WA and humpback whale, Mainland Mexico-CA/OR/WA stock;

• Humpback whale, CA/OR/WA to humpback whale, Central America/Southern Mexico-CA/OR/WA and humpback whale, Mainland Mexico-CA/OR/WA stock;

• Humpback whale, CA/OR/WA to humpback whale, Central America/Southern Mexico-CA/OR/WA and humpback whale, Mainland Mexico-CA/OR/WA stock;

• Humpback whale, CA/OR/WA to humpback whale, Central America/Southern Mexico-CA/OR/WA and humpback whale, Mainland Mexico-CA/OR/WA stock;

• Humpback whale, CA/OR/WA to humpback whale, Central America/Southern Mexico-CA/OR/WA and humpback whale, Mainland Mexico-CA/OR/WA stock;

• Humpback whale, CA/OR/WA to humpback whale, Central America/Southern Mexico-CA/OR/WA and humpback whale, Mainland Mexico-CA/OR/WA stock;

• Humpback whale, Central North Pacific to humpback whale, Hawai'i and humpback whale, Mexico-North Pacific;

• Humpback whale, Central North Pacific to humpback whale, Hawai'i and humpback whale, Mexico-North Pacific;

• Humpback whale, Central North Pacific to humpback whale, Hawai'i and humpback whale, Mexico-North Pacific;

• Humpback whale, Central North Pacific to humpback whale, Hawai'i and humpback whale, Mexico-North Pacific;

• Humpback whale, Central North Pacific to humpback whale, Hawai'i and humpback whale, Mexico-North Pacific;

• Humpback whale, Central North Pacific to humpback whale, Hawai'i and humpback whale, Mexico-North Pacific;

• Humpback whale, Central North Pacific to humpback whale, Hawai'i, and

• Humpback whale, Central North Pacific to humpback whale, Hawai'i and humpback whale, Mexico-North Pacific.

NMFS proposes to reclassify the Category III U.S. Mid-Atlantic mixed species stop seine/weir/pound net (except the NC roe mullet stop net) fishery to a Category II based on M/SI of the Northern NC estuarine system stock of bottlenose dolphin. Mean annual estimated M/SI of the Northern NC estuarine stock of bottlenose dolphin in this fishery is 2.56 percent of PBR (7.8 dolphins). Because the estimated M/SI is between 1 and 50 percent of the stock's PBR, NMFS proposes to reclassify U.S. Mid-Atlantic mixed species stop seine/weir/pound net (except the NC roe mullet stop net) fishery from a Category III to a Category II fishery. NMFS also proposes to add the fishery to the list of affected fisheries for the Bottlenose Dolphin Take Reduction Plan in table 4.

NMFS proposes to add the Virginia shrimp trawl fishery as a Category II fishery. This new fishery operates in the Commonwealth of Virginia's coastal waters (within three nautical miles) from October 1 through January 1. The fishery uses beam trawl gear with a fixed frame no larger than 4 feet by 16 feet, with mesh size ranging from 1.5-2.0 inches (stretched mesh). Tows are not to exceed 30 minutes in duration. There are 12 authorized permits for this fishery.

There is no information on marine mammal M/SI incidental to this fishery. Therefore, no marine mammal species/stocks are identified in table 2. Marine mammal species/stocks will be added to the list, if incidental mortalities or injuries are documented in this fishery.

The regulatory definition of a Category II fishery (50 CFR 229.2) provides for NMFS to evaluate other factors such as: fishing techniques, gear used, methods used to deter marine mammals, target species, seasons and areas fished, qualitative data from logbooks or fisher reports, stranding data, and the species and distribution of marine mammals in the area when there is no reliable information on the frequency of incidental M/SI in a given fishery. In the absence of reliable information on incidental M/SI, the Virginia shrimp trawl fishery is proposed as a Category II fishery, because there is no evidence of a remote likelihood of or no known incidental M/SI in the fishery.

NMFS proposes to remove the superscript “1” from the WNA stock of long-finned pilot whale to indicate the stock is no longer driving the Category II classification of the Northeast mid-water trawl (including pair trawl) fishery.

NMFS proposes to combine the Category II Northeast anchored float gillnet fishery into the Category I Northeast sink gillnet fishery. Federal Vessel Trip Report codes do not distinguish anchored float gillnet gear from other types of gillnet gear. Consequently, fishing effort for the Northeast anchored float gillnet fishery is included as part of reported fishing effort for the Northeast sink gillnet fishery. Additionally, marine mammal bycatch in the Northeast anchored float gillnet fishery is included in bycatch analyses for the Northeast sink gillnet fishery. The species that are currently listed under the Northeast anchored float gillnet fishery are already included in the list of species incidentally taken in the Northeast sink gillnet fishery. This proposed change does not affect either fisheries' requirements under the Harbor Porpoise or Atlantic Large Whale TRPs (see table 4).

NMFS proposes to revise the fishery descriptions for the Category I Northeast/Mid-Atlantic American lobster trap/pot fishery and Category II Atlantic mixed species trap/pot fishery. NMFS proposes to add Jonah crab as a target species for the Category I Northeast/Mid-Atlantic American lobster trap/pot fishery and remove Jonah crab as a target species from the Category II Atlantic mixed species trap/pot fishery. NMFS also proposes to revise the name of the Category I Northeast/Mid-Atlantic American lobster and Jonah crab trap/pot fishery.

This proposed change aligns the Northeast/Mid-Atlantic American lobster and Atlantic mixed species trap/pot fisheries descriptions with how the two target species are collectively managed. Jonah crab distribution overlaps with that of American lobster, and Jonah crab are caught using the exact same gear used in the Category I Northeast/Mid-Atlantic American lobster trap/pot fishery. The gear used to target Jonah crab is consistent with what is currently described for the Category II Northeast/Mid-Atlantic American lobster trap/pot fishery. Currently, participation in the Jonah crab fishery is limited to American lobster permit holders. The Jonah crab fishery conforms to the specifications of the Interstate Fishery Management Plan for American Lobster and complies with regulatory requirements specified for each Lobster Management Area.

NMFS proposes to update the estimated number of vessels/persons in the Atlantic Ocean, Gulf of Mexico, and Caribbean (table 2) as follows:

• Northeast sink gillnet fishery from 4,072 to 4,924 vessels/persons;

• NC inshore gillnet fishery from 2,676 to 1,157 vessels/persons; and

• NC long haul seine fishery from 22 to 10 vessels/persons.

NMFS corrects an administrative error in table 2. NMFS proposes to update the bottlenose dolphin stock name from FL Bay estuarine to FL Bay in the list of species/stocks incidentally killed or injured in the Category III FL spiny lobster trap/pot fishery.

NMFS proposes to add the WNA stock of harp seal to the list of species/stocks incidentally killed or injured in the Category I mid-Atlantic gillnet fishery. From 2015 through 2019, there were 14 observed harp seal mortalities in the mid-Atlantic gillnet fishery (Hayes et al., 2022).

NMFS proposes to add the WNA stock of white-sided dolphin to the list of species/stocks incidentally killed or injured in the Category II Northeast mid-water trawl (including pair trawl) fishery based on a self-reported mortality in 2020.

NMFS proposes to add the Biscayne Bay estuarine stock of bottlenose dolphin to the list of species/stocks incidentally killed or injured in the Category II Atlantic blue crab trap/pot fishery. In 2020, one dolphin was disentangled from commercial blue crab trap/pot gear and released alive (Hayes et al., 2023). The animal was determined to be seriously injured (Maze-Foley and Garrison, In Prep).

NMFS proposes to add the Charleston estuarine system stock of bottlenose dolphin to the list of species/stocks incidentally killed or injured in the Category III Atlantic Ocean, Gulf of Mexico, Caribbean commercial passenger fishing vessel fishery. In 2017, there was one mortality where monofilament line was found during the necropsy; however, it could not be determined whether the hook and line gear contributed to cause of death (Hayes et al., 2023).

NMFS proposes to remove both the SC/GA coastal and Southern migratory coastal stocks of bottlenose dolphin from the list of species/stocks incidentally killed or injured in the Category II Southeast Atlantic gillnet fishery. This fishery is observed; and, from 2016-2020, there have been no reported or observed M/SI in this fishery (Hayes et al., 2023).

NMFS proposes to remove the Charleston estuarine system stock of bottlenose dolphin from the list of species/stocks incidentally killed or injured in the Category II Southeastern U.S. Atlantic, Gulf of Mexico shrimp trawl fishery. This fishery is observed; and, from 2016-2020, there have been no reported or observed M/SI in this fishery (Hayes et al., 2023).

NMFS proposes to remove Category II Atlantic Highly Migratory Species trawl fishery from the LOF because there are no participants in this fishery.

NMFS proposes to remove Category II South Pacific tuna fisheries troll fishery from the LOF because there are no participants in this fishery.

NMFS proposes to update the estimated number of HSFCA permits for high seas fisheries (table 3) as follows:

• Western Pacific pelagic (HI deep-set component) longline fishery from 150 to 146 HSFCA permits;

• Pacific highly migratory species drift gillnet fishery from 3 to 2 HSFCA permits;

• Western and Central Pacific Ocean tuna purse seine fishery from 34 to 14 HSFCA permits;

• South Pacific albacore troll longline fishery from 8 to 6 HSFCA permits;

• Pacific highly migratory species handline/pole and line fishery from 45 to 36 HSFCA permits;

• South Pacific albacore troll handline/pole and line fishery from 7 to 1 HSFCA permits;

• South Pacific albacore troll fishery from 24 to 23 HSFCA permits;

• Western Pacific pelagic troll fishery from 7 to 6 HSFCA permits;

• Northwest Atlantic bottom longline fishery from 2 to 1 HSFCA permits;

• Pacific highly migratory species longline fishery from 127 to 119 HSFCA permits;

• Pacific highly migratory species purse seine fishery from 2 to 1 HSFCA permits;

• Northwest Atlantic trawl fishery from 3 to 1 HSFCA permits; and

• Pacific highly migratory species troll fishery from 93 to 95 HSFCA permits.

NMFS proposes to remove the Hawaii stock of striped dolphin from the list of species/stocks incidentally killed or injured in the Category I Western Pacific Pelagic longline fishery (HI deep-set component). As noted in table 3, the list of marine mammal species and/or stocks killed or injured in this fishery is identical to the list of marine mammal species and/or stocks killed or injured in U.S. waters component of the fishery, minus species and/or stocks that have geographic ranges exclusively in coastal waters. From 2016-2020, there have been no reported or observed M/SI in the HI deep-set longline fishery (Carretta et al., 2023); the fishery is currently observed at about 20-percent coverage. Therefore, NMFS proposed to remove the stock from both the HI deep-set longline fishery and the Western Pacific Pelagic longline fishery (HI deep-set component).

NMFS proposes to remove the unknown stock of pygmy killer whale from the list of species/stocks incidentally killed or injured in the Category II Western and Central Pacific Ocean tuna purse seine fishery. From 2016-2020, there have been no reported or observed M/SI in the fishery (Carretta et al., 2023); the fishery is currently observed at about 20 percent coverage.

NMFS proposes to remove the Hawaii stock of fin whale and Central North Pacific stock of humpback whale from the list of species/stocks incidentally killed or injured in the Category II Western Pacific Pelagic longline fishery (HI shallow-set component). As noted in table 3, the list of marine mammal species and/or stocks killed or injured in this fishery is identical to the list of marine mammal species and/or stocks killed or injured in U.S. waters component of the fishery, minus species and/or stocks that have geographic ranges exclusively in coastal waters. From 2016-2020, there have been no reported or observed M/SI in the HI shallow-set longline fishery (Carretta et al., 2023), which is observed at 100 percent. Therefore, NMFS proposed to remove the stocks from both the HI shallow-set longline fishery and the Western Pacific Pelagic longline fishery (HI shallow-set component).

The following tables set forth the list of U.S. commercial fisheries according to their classification under section 118 of the MMPA. Table 1 lists commercial fisheries in the Pacific Ocean (including Alaska), table 2 lists commercial fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean, table 3 lists commercial fisheries on the high seas, and table 4 lists fisheries affected by TRPs or TRTs.

In tables 1 and 2, the estimated number of vessels or persons participating in fisheries operating within U.S. waters is expressed in terms of the number of active participants in the fishery, when possible. If this information is not available, the estimated number of vessels or persons licensed for a particular fishery is provided. If no recent information is available on the number of participants, vessels, or persons licensed in a fishery, then the number from the most recent LOF is used for the estimated number of vessels or persons in the fishery. NMFS acknowledges that, in some cases, these estimates may be inflations of actual effort. For example, the State of Hawaii does not issue fishery-specific licenses, and the number of participants reported in the LOF represents the number of commercial marine license holders who reported using a particular fishing gear type/method at least once in a given year, without considering how many times the gear was used. For these fisheries, effort by a single participant is counted the same whether the fisherman used the gear only once or every day. In the Mid-Atlantic and New England fisheries, the numbers represent the potential effort for each fishery, given the multiple gear types for which several state permits may allow. Changes made to Mid-Atlantic and New England fishery participants will not affect observer coverage or bycatch estimates, as observer coverage and bycatch estimates are based on vessel trip reports and landings data. Tables 1 and 2 serve to provide a description of the fishery's potential effort (state and Federal). If NMFS is able to gather more accurate information on the gear types used by state permit holders in the future, the numbers will be updated to reflect this change. For additional information on fishing effort in fisheries found on table 1 or 2, contact the relevant regional office (contact information included above in the section: Where can I find more information about the LOF and the MMAP?).

For high seas fisheries, table 3 lists the number of valid HSFCA permits currently held. Although this likely overestimates the number of active participants in many of these fisheries, the number of valid HSFCA permits is the most reliable data on the potential effort in high seas fisheries at this time. As noted previously, the number of HSFCA permits listed in table 3 for the high seas components of fisheries that also operate within U.S. waters does not necessarily represent additional effort that is not accounted for in tables 1 and 2. Many vessels holding HSFCA permits also fish within U.S. waters and are included in the number of vessels and participants operating within those fisheries in tables 1 and 2.

Tables 1, 2, and 3 also list the marine mammal species and/or stocks incidentally killed or injured (seriously or non-seriously) in each fishery based on SARs, injury determination reports, bycatch estimation reports, observer data, logbook data, stranding data, disentanglement network data, fishermen self-reports ( i.e., MMAP reports), and anecdotal reports. The best available scientific information included in these reports is based on data through 2020. This list includes all species and/or stocks known to be killed or injured in a given fishery, but also includes species and/or stocks for which there are anecdotal records of a mortality or injury. Additionally, species identified by logbook entries, stranding data, or fishermen self-reports ( i.e., MMAP reports) may not be verified. In tables 1 and 2, NMFS has designated those species/stocks driving a fishery's classification ( i.e., the fishery is classified based on mortalities and serious injuries of a marine mammal stock that are greater than or equal to 50 percent (Category I), or greater than 1 percent and less than 50 percent (Category II), of a stock's PBR) by a “1” after the stock's name.

In tables 1 and 2, there are several fisheries classified as Category II that have no recent documented mortalities or serious injuries of marine mammals, or fisheries that did not result in a mortality or serious injury rate greater than 1 percent of a stock's PBR level based on known interactions. NMFS has classified these fisheries by analogy to other Category I or II fisheries that use similar fishing techniques or gear that are known to cause mortality or serious injury of marine mammals, as discussed in the final LOF for 1996 (60 FR 67063, December 28, 1995), and according to factors listed in the definition of a “Category II fishery” in 50 CFR 229.2 ( i.e., fishing techniques, gear types, methods used to deter marine mammals, target species, seasons and areas fished, qualitative data from logbooks or fishermen reports, stranding data, and the species and distribution of marine mammals in the area). NMFS has designated those fisheries listed by analogy in tables 1 and 2 by adding a “2” after the fishery's name.

There are several fisheries in tables 1, 2, and 3 in which a portion of the fishing vessels cross the EEZ boundary and therefore operate both within U.S. waters and on the high seas. These fisheries, though listed separately on table 1 or 2 and table 3, are considered the same fisheries on either side of the EEZ boundary. NMFS has designated those fisheries in each table with an asterisk (*) after the fishery's name.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed rule would not have a significant economic impact on a substantial number of small entities. Any entity with combined annual fishery landing receipts less than $11 million is considered a small entity for purposes of the Regulatory Flexibility Act. Under the size standard, all entities subject to this action were considered small entities; thus, they all would continue to be considered small under the new standards.

Under existing regulations, all individuals participating in Category I or II fisheries must register under the MMPA and obtain an authorization certificate. The authorization certificate authorizes the taking of marine mammals incidental to commercial fishing operations under the MMPA. Additionally, individuals may be subject to a TRP and requested to carry an observer. NMFS has estimated that up to approximately 49,014 fishing vessels, most with annual revenues below the SBA's small entity thresholds, may operate in Category I or II fisheries. As fishing vessels operating in Category I or II fisheries, they are required to register with NMFS. The MMPA registration process is integrated with existing state and Federal licensing, permitting, and registration programs. Therefore, individuals who have a state or Federal fishing permit or landing license, or who are authorized through another related state or Federal fishery registration program, are currently not required to register separately under the MMPA or pay the $25 registration fee. Through this integrated process, registration under the MMPA, including the $25 registration fee, is only required for vessels participating in a Category I or II non-permitted fishery. All Category I and II fisheries listed on the 2024 proposed LOF are permitted through state or Federal processes, and registration under the MMPA is covered through the integrated process. Therefore, this proposed rule would not impose any direct costs on small entities.

The MMPA requires any vessel owner or operator participating in a fishery listed on the LOF to report to NMFS, within 48 hours of the end of the fishing trip, all marine mammal incidental mortalities and injuries that occur during commercial fishing operations. These marine mammal mortalities and injuries are reported using a postage-paid, Office of Management and Budget (OMB) approved form (OMB Control Number 0648-0292). This postage-paid form requires less than 15 minutes to complete and can be dropped in any mailbox, faxed, emailed, or completed online within 48 hours of the vessel's return to port. Therefore, recordkeeping and reporting costs associated with this LOF are minimal and would not have a significant impact on a substantial number of small entities.

If a vessel is requested to carry an observer, vessels will not incur any direct economic costs associated with carrying that observer. As a result of this certification, an initial regulatory flexibility analysis is not required and none has been prepared. In the event that reclassification of a fishery to Category I or II results in a TRP, economic analyses of the effects of that TRP would be summarized in subsequent rulemaking actions.

This proposed rule contains existing collection-of-information (COI) requirements subject to the Paperwork Reduction Act and would not impose additional or new COI requirements. The COI for the registration of individuals under the MMPA has been approved by the OMB under OMB Control Number 0648-0293 (0.15 hours per report for new registrants). The requirement for reporting marine mammal mortalities or injuries has been approved by OMB under OMB Control Number 0648-0292 (0.15 hours per report). These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the COI. Send comments regarding these reporting burden estimates or any other aspect of the COI, including suggestions for reducing burden, to NMFS (see ADDRESSES ). You may also submit comments on these or any other aspects of the collection of information at https://www.reginfo.gov/public/do/PRAMain.

Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with a COI, subject to the requirements of the Paperwork Reduction Act, unless that COI displays a currently valid OMB control number.

This proposed rule has been determined to be not significant for the purposes of Executive Orders 12866 and 13563.

In accordance with the Companion Manual for NOAA Administrative Order (NAO) 216-6A, NMFS determined that publishing this proposed LOF qualifies to be categorically excluded from further NEPA review, consistent with categories of activities identified in Categorical Exclusion G7 (“Preparation of policy directives, rules, regulations, and guidelines of an administrative, financial, legal, technical, or procedural nature, or for which the environmental effects are too broad, speculative or conjectural to lend themselves to meaningful analysis and will be subject later to the NEPA process, either collectively or on a case-by-case basis”) of the Companion Manual and we have not identified any extraordinary circumstances listed in Chapter 4 of the Companion Manual for NAO 216-6A that would preclude application of this categorical exclusion. If NMFS takes a management action, for example, through the development of a TRP, NMFS would first prepare an Environmental Impact Statement or Environmental Assessment, as required under NEPA, specific to that action.

This proposed rule would not affect species listed as threatened or endangered under the ESA or their associated critical habitat. The impacts of numerous fisheries have been analyzed in various biological opinions, and this proposed rule will not affect the conclusions of those opinions. The classification of fisheries on the LOF is not considered to be a management action that would adversely affect threatened or endangered species. If NMFS takes a management action, for example, through the development of a TRP, NMFS would consult under ESA section 7 on that action.

This proposed rule would have no adverse impacts on marine mammals and may have a positive impact on marine mammals by improving knowledge of marine mammals and the fisheries interacting with marine mammals through information collected from observer programs, stranding and sighting data, or take reduction teams.

This proposed rule would not affect the land or water uses or natural resources of the coastal zone, as specified under section 307 of the Coastal Zone Management Act.