The objective of this proposed rule is to strengthen the safety and soundness of the System's ICFR by requiring Attestation Reports from certain institutions. As further discussed in section II, complexity and concentration of System banks and their affiliated associations have changed dramatically since 2006 (the fiscal year before § 630.5 was last amended), leading to an increased risk that an internal control weakness or failure, such as an undetected management error, negligence, or fraud event at one association could affect the safety and soundness of the entire System. By requiring certain associations to obtain an Integrated Audit, FCA's proposed rule would help reduce undetected and evolving financial reporting risks in the System.

The amendments in the proposed rule include changes to financial reporting requirements set forth in 12 CFR 620.3 and 630.5 that:

• Revise § 620.3 to mandate all System banks obtain an Attestation Report from their external auditors.

• Revise § 620.3 to mandate all System associations that meet the following thresholds or conditions obtain an Attestation Report from their external auditors:

○ The association's total assets were one percent or more of total System assets as of December 31 of the previous fiscal year; or

○ The association's direct note payable to its bank was 15 percent or more of the bank's direct loans to associations as of December 31 of the previous fiscal year; or

○ FCA staff determines that a material weakness exists in the association's ICFR, or other developments have occurred or are expected to occur that could adversely impact, or result in significant changes to, the association's ICFR that impacts the safety and soundness of the association.

• Revise § 630.5(d)(2), to correspond with the proposed language in § 620.3(d)(2) and (3) that an Attestation Report be made in accordance with GAAS. Refer to section II for additional information.

FCA believes requiring associations to obtain an Attestation Report when their assets equal or exceed one percent of total System assets is appropriate because this threshold captures the associations that pose a systemic risk to the System. FCA also believes requiring associations to obtain an Attestation Report when their direct note payable to their bank equals or exceeds 15 percent of the bank's direct loans to associations is appropriate because these associations hold a large concentration of their bank's direct loans and may pose a systemic risk to the safety and soundness of their bank without meeting the one percent of total System assets. This requirement ensures associations that hold a large concentration of bank direct loans also obtain an Attestation Report.

An association would generally have three fiscal years to obtain its Attestation Report. Additionally, the proposed rule also details how and when merging associations are to obtain Attestation Reports.

All System banks currently obtain an Integrated Audit, as required by the Funding Corporation. FCA now proposes to formalize this requirement in this regulation.

The Farm Credit Amendments Act of 1985  1 revised the Farm Credit Act of 1971, as amended (Act), 2 to require FCA regulate the disclosure and reporting practices of System institutions and require each System institution to prepare and publish annual financial reports to shareholders. Section 5.19(b) of the Act requires financial statements be prepared in accordance with generally accepted accounting principles (GAAP) and be audited by an independent public accountant.

In December 2006, FCA issued a final rule at 12 CFR 630.5(d) (71 FR 76111) that, in part, requires the Funding Corporation to require its external auditor to express an opinion on the Funding Corporation's effectiveness of ICFR in preparing disclosures to investors in System-wide and consolidated bank debt obligations. When proposed, FCA stated that a System-wide opinion at the Funding Corporation level on ICFR would accomplish many of the same objectives as requiring an opinion on ICFR at the bank and association levels. 3

Additionally, 12 CFR 620.3(d) of FCA regulations requires all System institutions with over $1 billion in total assets at the end of the prior fiscal year include in their annual reports a report by management assessing the effectiveness of ICFR. These institutions must also report to their board of directors and disclose in their quarterly and annual reports any material changes in ICFR during the reporting period. Associations with assets of less than $1 billion in total assets do not have reporting requirements.

As discussed below, the complexity and concentration of System banks and associations have changed dramatically, leading to an increased risk that an internal control weakness or failure at one institution could affect the safety and soundness of the entire System, due to the System's cooperative structure. This proposed rule, if adopted, would decrease risks related to the detection and reporting of internal control weakness or failure. FCA believes an Integrated Audit will strengthen the safety and soundness of the System.

Internal Control over Financial Reporting. ICFR is a process consisting of policies and procedures designed to assess financial statement risk and provide reasonable assurance that an institution prepares reliable financial statements. 4

Audit of ICFR. An audit of ICFR is an audit of the design and operating effectiveness of an entity's ICFR. 5

Integrated Audit. An Integrated Audit is an audit of ICFR that is integrated with an audit of financial statements. 6 An Integrated Audit also considers financial reporting systems related to ICFR. The auditor provides an opinion, known as an Attestation Report, on both the financial statements and ICFR in the annual financial statements. Attestation Report and Integrated Audit are used interchangeably in this preamble.

The cooperative structure of the System creates a unique environment in which an adverse event at one institution could impact the entire System and affect the Funding Corporation's ability to issue System-wide disclosures on a timely, well-controlled basis as required in § 630.3. Moreover, debt securities are the joint and several obligations of the System banks and are not obligations of or guaranteed by the United States government. As such, any material weakness or other development, such as an undetected management error, negligence, fraud event, or failure, that have occurred, or are expected to occur, could adversely impact, or result in significant changes to ICFR at a bank or one or more of the associations that could impact investor confidence and public trust in the entire System.

While the System has implemented standards, created workgroups, and employed other practices mentioned below, risks arise from inconsistencies in the design and implementation of ICFR at different institutions. Only the Funding Corporation, System banks, and one association (as a condition of merger)  7 obtain Integrated Audits, which exacerbates this risk of inconsistency.

When FCA issued 12 CFR 630.5(d) in December 2006, there were five System banks and 95 associations with $162.9 billion in total System assets  8 with associations holding $100.7 billion. 9 Since then, as of December 31, 2023, there are four System Banks (20 percent decrease) and 56 associations (41 percent decrease). System assets totaled $507.8 billion (212 percent increase) and association assets totaled $308.4 billion (206 percent increase).

The average and median total asset size for associations has also increased markedly. As of December 31, 2006, associations averaged $1.1 billion in total assets and the median total asset size was $462 million. As of December 31, 2023, associations averaged $5.5 billion in total assets (420 percent increase), and the median total asset size was $1.8 billion (285 percent increase).

When comparing associations as of December 31, 2006, to associations as of December 31, 2023, asset sizes and concentrations for the associations that held either one percent of total System assets or 15 percent of their bank's direct loans have also increased.

As of December 31, 2006, 14 associations held one percent or more of total System assets, with these associations holding a combined $57.6 billion in total assets. As of December 31, 2023, 12 associations held one percent or more of total System assets, with these associations holding a combined $236.1 billion in total assets (310 percent increase). As of December 31, 2006, the 14 associations cited above held 35 percent of total System assets. As of December 31, 2023, the 12 associations cited above held 46 percent of total System assets (31 percent increase).

System bank direct loans to associations have also become more concentrated. As of December 31, 2006, eight associations held 15 percent or more of their bank's direct loans to associations (eight percent of associations). As of December 31, 2023, seven associations held 15 percent or more of their bank's direct note. While the number of associations holding 15 percent or more of their bank's direct note decreased, the percentage of associations holding 15 percent or more of their bank's direct loans increased (13 percent of associations). As of December 31, 2006, those eight associations held approximately 42 percent of all System bank direct notes to associations. As of December 31, 2023, the seven associations held approximately 60 percent of all System bank direct notes to associations (42 percent increase).

As associations become more complex, and the System has fewer overall associations, an ICFR weakness at one association can become significant to the association's bank and the entire System. As associations become more complex, the effectiveness of ICFR becomes more important to the association, as well as to its bank and the System, more broadly.

Additionally, the Farm Credit System Insurance Corporation (FCSIC), views concentration risk as an increasing concern. The association concentration mentioned above has significantly increased direct loan concentration for System banks, which in turn has impacted FCSIC's risks of insuring System banks. Concentrated associations pose significant inherent risks to their banks and FCSIC's Insurance Fund. FCA consulted with FCSIC on the proposed rule and FCSIC stated that it believes that an Integrated Audit requirement would provide further assurances on the integrity of financial and accounting information at the affected associations, as well as help mitigate large losses to the Insurance Fund that could result from undetected management errors, negligence, a fraud event, or failure.

FCA regulatory requirements for ICFR audits are limited. As required by § 630.5(d)(2), the Funding Corporation must obtain an Integrated Audit of the combined System-wide financial statements. However, there is no equivalent regulation at the association or Bank level.

FCA believes requiring associations to obtain an Attestation Report when their assets equal or exceed one percent of total System assets is appropriate because this threshold captures the associations that pose a systemic risk to the System. FCA also believes requiring associations to obtain an Attestation Report when their direct note payable to their bank equals or exceeds 15 percent of the bank's direct loans to associations is appropriate because these associations hold a large concentration of their bank's direct loans and may pose a systemic risk to the safety and soundness of their bank without meeting the one percent of total System assets. This requirement ensures associations that hold a large concentration of bank direct loans also obtain an Attestation Report.

FCA acknowledges that System associations have an ICFR review performed by their System bank. System banks may impose monetary penalties, i.e., increased funding costs due to increased risks, if associations do not maintain adequate ICFR. Additionally, the external auditor of all significant associations (one percent or more of total System assets) performs additional ICFR reviews yearly and at all other associations on a three-year rotation.

The System has also implemented practices related to ICFR. In order to express an opinion on ICFR at the Funding Corporation, all associations must establish a system of internal controls. System associations must make quarterly assertions related to ICFR to the Funding Corporation. The System has also established an ICFR workgroup. This workgroup provides tools and training to System institutions on how to establish and maintain their ICFR environment.

However, these additional ICFR reviews and practices are designed to support the ICFR opinion at the Funding Corporation and System Bank level and not the individual association level. FCA believes that the scope of such work is not adequate for an external auditor to express an opinion on the effectiveness of the individual association's ICFR. Thus, FCA believes a regulation requiring an Attestation Report will provide an independent review of an association's ICFR environment and reduce the probability and magnitude of an internal control weakness or failure. Additionally, an Attestation Report would examine different controls and in different detail than current requirements for management assessments.

Integrated Audits are more robust than financial statement audits. The objective of a financial statement audit is to determine if the financial statements are presented fairly, in all material respects. As part of a financial statement audit, auditors obtain an understanding of a System Institution's ICFR. Although a financial statement audit assesses factors that affect the risks of material misstatement on ICFR, the scope of work and level of testing is less than an Integrated Audit. An Integrated Audit is structured to achieve the same objectives as a financial statement audit and additionally tests the design and operating effectiveness of all ICFR controls that can have a material effect on the financial statements and provides an opinion on the controls.

The Securities and Exchange Commission (SEC), has considered various studies when promulgating audit requirements for regulated entities that show Integrated Audits offer two benefits compared to financial statement audits:

• Integrated Audits have been found to provide information to investors about the reliability of the financial statements. For example, a 2011 SEC Staff Study  10 highlighted evidence that Attestation Reports generally resulted in the identification and disclosure of material weaknesses that were not previously identified or whose severity was misclassified when identified by management in its assessment of ICFR.

• The reliability of the financial statements can be enhanced through the execution of Integrated Audits. Studies considered in SEC Release No. 34-88365, Amendments to the Accelerated and Large Accelerated Filer Definitions, documented a significant correlation between audits of ICFR and the maintenance of better internal controls, thereby improving reliability of financial statements. The SEC also found that a failure to maintain effective ICFR has been associated with a higher rate of future restatements and lower earnings quality and a higher rate of future fraud revelations (among other things).

The SEC Release No. 34-88365 noted the following:

• Risks of fraud and financial statement restatements or misstatements were found to be greater for registrants that would not be subject to a requirement to obtain Attestation Reports. From 2003 to 2020, non-accelerated U.S. filers (which did not obtain Attestation Reports) accounted for 62 percent of the total U.S. financial statement restatements.

• Registrants not subject to a requirement to obtain Attestation Reports were found to have higher levels of ineffective ICFR compared with issuers subject to that requirement. Over 40 percent of non-accelerated filers (not required to obtain Auditor Attestations) had ineffective ICFR, compared to less than approximately nine and five percent of accelerated and large accelerated filers, respectively (accelerated filers were subject to Integrated Audit requirements).

While the referenced SEC insights pertain to public companies, FCA believes that this information provides meaningful insights into reporting risks and their reduction at System institutions. Although there are costs in obtaining an Integrated Audit for each institution, there are safety and soundness benefits to the entire System. Consequently, FCA believes requiring certain System institutions to obtain Attestation Reports will reduce financial reporting risks described above that stem from significant changes in the complexity and concentration of System banks and associations justifying the cost to require certain associations obtain Integrated Audits.

When drafting the proposed rule, FCA reviewed the audit requirements that govern publicly traded financial institutions, institutions regulated by the Federal Deposit Insurance Corporation (FDIC), 11 and other Federal financial institution regulatory agencies. 12 In general, other regulators have established requirements that mandate a regulated entity engage an external auditor to conduct an annual audit of its financial statements as well as, under certain circumstances, an Integrated Audit. We reviewed other regulators thresholds and determined the compliance tailored and focused requirements in this proposal are more appropriate for the Farm Credit System than the asset minimums imposed by other regulators.

As discussed, the complexity and concentration of System banks and associations have changed dramatically leading to an increased risk that an internal control weakness or failure at one institution could affect the safety and soundness of the entire System, due to the System's cooperative structure. An Integrated Audit will strengthen shareholder and investor confidence in the System's ICFR. By requiring certain associations to obtain an Integrated Audit, FCA's proposed rule would help reduce undetected and evolving financial reporting risks in the System.

FCA acknowledges the effort and cost an association would bear to obtain and prepare for its first Integrated Audit. Therefore, FCA believes that the first Integrated Audit for associations should begin in the third full fiscal year after the effective date of this regulation, unless FCA determines it is appropriate to require an association to obtain an Attestation Report sooner because, as considered in § 620.3(d)(3)(i)(C), as proposed, material weaknesses in ICFR are identified or FCA has assessed that other developments have occurred, or are expected to occur, that could adversely impact, or result in significant changes to the association's ICFR that impacts the safety and soundness of the association. FCA believes that three years should provide an adequate period of time to allow affected associations to prepare for their first Integrated Audit.

All System banks currently obtain an Integrated Audit, as required by the Funding Corporation. Therefore, an Integrated Audit would be formally required for System banks upon the effective date of this regulation given that no transition period would be deemed necessary.

FCA proposes an amendment to § 620.3 that would require an Integrated Audit:

• By all Farm Credit System banks;

• By associations with one percent or more of total System assets;

• By an association when the direct note payable to its System bank is 15 percent or more of the System bank's direct loans to associations; or

• when FCA's Office of Examination (referred to as FCA staff in the regulatory text) determines that a material weakness in an association's ICFR exists such that an Integrated Audit is warranted. This could be based on material weaknesses in ICFR controls or other developments which occurred, or are expected to occur, that could adversely impact, or result in significant changes to an association's ICFR that impacts the safety and soundness of the association.

An association would generally have three fiscal years to obtain its Attestation Report. Additionally, the proposed rule also details how and when merging associations will obtain Attestation Reports. 13

With respect to the Funding Corporation, the proposed rule would amend § 630.5(d)(2) to require that an Attestation Report be made in accordance with GAAS to correspond to proposed language in § 620.3(d)(2) and (3).

Pursuant to section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), FCA hereby certifies that the proposed rule will not have a significant economic impact on a substantial number of small entities. Each of the banks in the Farm Credit System, considered together with its affiliated associations, has assets and annual income in excess of the amounts that would qualify them as small entities. Therefore, Farm Credit System institutions are not “small entities” as defined in the Regulatory Flexibility Act.

For the reasons stated in the preamble, the Farm Credit Administration proposes to amend 12 CFR parts 620 and 630 as follows:

The FAA invites interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the proposed special conditions, explain the reason for any recommended change, and include supporting data.

The FAA will consider all comments received by the closing date for comments and will consider comments filed late if it is possible to do so without incurring delay. The FAA may change these special conditions based on the comments received.

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

Confidential Business Information (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 these special conditions contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to these special conditions, 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 the indicated comments will not be placed in the public docket of these proposed special conditions. Send submissions containing CBI to the individual listed in the For Further Information Contact section above. Comments the FAA receives, which are not specifically designated as CBI, will be placed in the public docket for these proposed special conditions.

On July 2, 2018, Boeing applied for a supplemental type certificate (STC) for the installation of stairs for inflight flightcrew to access the forward and aft lower lobe compartments that will have two main functions: access of service items that have been stored and that of a Class C cargo compartment in the Model 747-8 series airplane. The modified Boeing Model 747-8 series airplane, which is a derivative of the Model 747-8F series airplane currently approved under Type Certificate No. A20WE, is a four-engine, transport category airplane with a VIP interior configuration, not for common carriage, seating for 93 passengers and 15 flightcrew, and a maximum takeoff weight of 987,000 pounds.

Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Boeing must show that changes to the Boeing Model 747-8 series airplane, as changed, continues to meet the applicable provisions of the regulations listed in Type Certificate No. A20WE or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.

If the Administrator finds that the applicable airworthiness regulations ( e.g., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Boeing Model 747-8 series airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a STC to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 747-8 series airplanes must comply with the exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.

Certain Boeing Model 747-8 series airplanes will incorporate the following novel or unusual design features:

The installation of stairs for flightcrew to access the forward and aft lower lobe compartments during flight. The compartments will have two main functions: storage of service items and that of a Class C cargo compartment.

Existing regulations address service areas and Class C cargo compartments independently, but do not address compartments that have both uses. A service compartment can be occupied, and the Class C cargo compartment cannot. Further, firefighting is dealt with differently in each compartment. The crew fights a fire in a service compartment and a flooding suppression system is used to fight a fire in a Class C cargo compartment.

The proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

As discussed above, these proposed special conditions are applicable to the Boeing Model 747-8 airplanes as modified by Boeing. Should the applicant apply for a STC to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would apply to the other model as well.

This action affects only a certain novel or unusual design feature on certain modified Boeing Model 747-8 series airplanes. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplanes.

The authority citation for these special conditions is as follows:

Accordingly, the Federal Aviation Administration (FAA) proposes the following special conditions as part of the type certification basis for Boeing Model 747-8 series airplanes, as modified by The Boeing Company.

(a) Alerts and indications are required in the lower lobe compartments to indicate decompression, smoke/fire detection, and the need to return to one's seat. (Definition for alert categorization must be consistent with 14 CFR 25.1322).

(1) There must be a flight deck indication to advise the flightcrew when the lower lobe service/cargo compartment(s) are occupied. The indication must be accompanied by a placard or message in the flight deck indicating someone is in the lower lobe compartment(s). The flight deck indication must be initiated automatically when the compartments become occupied, without input from the occupying flightcrew other than required to gain access. The flight deck indication must be canceled automatically when the compartment(s) are no longer occupied, and the means of access is returned to the unoccupied configuration.

(i) There must be flight deck indication to advise the flightcrew that the in-flight accessible doors to the lower lobe compartments are closed prior to initiation of the fire suppression system.

(2) There must be an “on/off” visual alert light located outside and on or near the access doors to each lower lobe service/cargo compartment with a placard stating, “When light is illuminated entrance is prohibited” (or similar words). The alert is to be automatic in the event of decompression, smoke/fire detection or anytime the compartment visual alerting system is activated.

(3) A flightcrew operated visual alerting system, which is recognized in accessible areas within the lower lobe compartment(s), must be installed to indicate, during turbulence, that persons must return to their seats. Appropriate procedures and limitations (if required) must be established to ensure that the flightcrew alerting systems notify the occupants to return to their seats at the onset of turbulence and prior to taxi, takeoff and landing.

(4) An automatically activated aural and visual decompression alerting system must be present and immediately recognizable in accessible areas of the lower lobe compartments to notify occupants when to don oxygen masks.

(5) An automatically activated aural and visual alerting system, which is recognized in the lower lobe compartment(s), must be installed. This aural and visual alerting system is to indicate that, in the event of smoke detection in the lower lobe compartment(s), persons must don their oxygen masks and initiate oxygen flow, exit the compartment, ensure that the door is closed (smoke barrier) and that communication with the flight deck is established. Entry must not be allowed during flight after release of fire suppressant.

(6) These alerting requirements must be distinctive and effective, and:

(i) Visual alerts must be visible from all occupant locations during all expected operational conditions including a rapid decompression where moisture in the air may condense.

(ii) Aural alerts must be loud enough to be heard during all expected operational conditions including a rapid decompression where the ambient noise level will increase.

(iii) If there are two or more alerts that an occupant may hear or is expected to respond to, there must be an automatic visual alert in addition to the automatic aural alert. There must be training in the sound of the alerting system, the meaning of the alerting system, and the response to the signal ( i.e., procedures for donning the masks and activating the flow of oxygen).

(b) Placards

(1) There must be appropriate placards installed inside and outside each access door to the lower lobe compartment(s) to indicate:

(i) The maximum number of occupants allowed, or number of occupants required, as applicable to the compartment.

(ii) Occupancy is restricted to crewmembers trained in the procedures of the lower lobe compartment(s).

(iii) Occupancy is prohibited during taxi, takeoff, and landing, and whilst the fire suppression system is activated.

(iv) The access door must remain closed except when someone is entering or exiting the compartment.

(v) Occupancy of the compartment should be of minimum duration.

(vi) Anyone entering the lower lobe compartment(s) during flight must carry portable oxygen equipment for the entire time that they are in the compartment.

(2) There must be appropriate placards located conspicuously on or near each lower lobe compartment exit defining the location and operating instructions for each evacuation route. Placards must be readable from a distance of 30 inches under emergency lighting conditions.

(3) There must be a placard located adjacent to the visual alert light required by condition (a) (2) that states, “When light is illuminated, entrance is prohibited” (or similar words).

(4) In addition to the above requirements, the following additional placards must be included for an Electronic/Equipment (E/E) Bay:

(i) No stowage allowed within an E/E Bay.

(ii) In-flight access for panels/cabinets not designed to be used in-flight is prohibited.

(iii) Provided the in-flight maintenance requirements in ICA section (g) are met, placarding must declare that “Entrance is prohibited except by permission of the pilot in command” (or similar words).

(iv) “Access is not permitted during flight” if the in-flight maintenance requirements in ICA Section (g) are not met.

(v) A placard must be installed on all access panels and doors within lower lobe compartments prohibiting use of those that are not intended for use in flight.

(c) Equipment: In lieu of that required by §§ 25.819, 25.851(a), 25.1439(a) and 25.1447(c) the following equipment is required:

(1) There must be a portable oxygen bottle with mask attached to it meeting the requirements § 25.1439(b)(1), (2)(i), (4) for each crewmember occupying the lower lobe compartment(s). The equipment must be mounted outside each access door to the lower lobe service/cargo compartment(s). The equipment and system must be designed to prevent any inward leakage to the inside of the device and prevent any outward leakage causing significant increase in the oxygen content of the local atmosphere ( i.e., full face mask type). A portable oxygen bottle must be carried by each crewmember who is occupying the lower lobe service/cargo compartment. The portable oxygen bottle must also meet the minimum performance requirements of § 25.1443(a) or (b), or the equipment must be shown to protect the occupant from hypoxia at an activity level required to return to a seat on the main deck where oxygen is available following a rapid decompression.

(2) In addition to the emergency illumination required by § 25.819(a), at least two flashlights, each equipped with a locator light, must be provided. One flashlight must be located adjacent to each emergency exit and entrance in the lower lobe compartment(s).

(3) In addition to the evacuation route requirements of § 25.819(a), all entrances and exits from the lower lobe service/cargo compartment must be capable of being closed after entering and exiting and, after closing, must prevent hazardous quantities of smoke, flames, or fire suppressant agent from entering any compartments occupied by passengers or crew and must prevent loss of fire suppressant agent when activated.

(4) In lieu of the emergency equipment required by §§ 25.851(a) and 25.1439(a), when the procedures allow for a single occupant in a potential “dead end” volume further than 5 feet from an exit in the lower lobe compartment(s) there must be a readily accessible fire extinguisher, appropriate to the types and kinds of fires that may occur.

(5) A means must be in place to preclude anyone from being trapped inside the lower lobe compartment(s). If a locking mechanism is installed in the door, it must be capable of being unlocked from the either side of the door without the aid of any tools.

(6) A means must be in place to restrict access and prevent inadvertent damage to critical aircraft systems and equipment located within the compartment during flight.

(7) There must be a means to communicate with the flight deck from within the E/E Bay.

(d) Training: Training manuals and training must include:

(1) Use and actions associated with aural and visual alerts and placards specified herein.

(2) Entering and exiting the lower lobe compartment(s), including emergency exiting.

(3) Checking the oxygen bottle pressure for adequacy prior to entering the lower lobe service/cargo compartment.

(4) Carrying the oxygen bottle when entering the lower lobe compartment(s) and using the bottle in emergency situations.

(5) Maintaining exit path aisle and access for the evacuation routes.

(6) Identification of equipment related hazards such as the potential for electric shock and burns.

(7) Limiting the occupancy for duration of the required tasks.

(e) Procedures

(1) A procedure must be established to ensure that the appropriate actions are taken in the event of smoke/fire detection. These actions are to include evacuation of the lower lobe compartments if occupied, communication with flight deck, determination of the event severity and the closure of the compartment doors for compartment sealing. These actions ensure the fire barriers ( i.e., doors) are closed prior to release of fire suppressant agent in the cargo compartments. Reentry into the lower lobe service/cargo compartments after a smoke/fire detection event would only be allowed by the pilot in command, via controlled procedures.

(2) A procedure must be established to ensure that required equipment, such as portable oxygen, fire extinguishers, protective breathing equipment, and warning light are functional prior to takeoff.

(f) Limitations of Special Condition

(1) An FAA approved Cabin Crew Manual requiring the cabin crew verify the lower lobe compartment(s) are not occupied during taxi, takeoff, landing, or after fire suppression activation must be created. The Cabin Crew Manual must include instructions for allowing access; procedures for fire/smoke detection/firefighting; procedures for decompression. The Cabin Crew Manual must be specified by the master drawing list and called out on the description of type design change section of the STC.

(2) The Airplane Flight Manual (AFM) supplement must include instructions for: allowing access; procedures for fire/smoke detection/firefighting; procedures for decompression.

(3) The weight and balance manual must include cargo loading restrictions to maintain escape paths.

(g) Instructions for Continued Airworthiness (ICAs)

(1) The ICAs must contain appropriate procedures to ensure maintenance can be safely accomplished in-flight.

(i) The ICA supplement must contain instructions that highlight the special considerations associated with in-flight maintenance. This content includes any assumptions or requirements for compliance with §§ 25.1309, 25.1360, 25.1529 and 25.1721.

(ii) The ICAs must establish an appropriate foreign object damage (FOD) control process for performing maintenance in-flight. The hazards associated with FOD may be mitigated by design and existing FOD control processes.

(iii) The ICAs must establish an appropriate lock-out/tag-out procedure for performing maintenance in-flight. A new single lock-out/tag-out procedure may be created for both ground and flight.

(h) The stairway must have essentially straight route segments with a landing at each significant change in segment direction.

(i) The stairway must have essentially rectangular treads.

(j) The stairway must accommodate the carriage of an incapacitated occupant from the lower deck to the main deck. The crewmember procedures for such carriage must be established and included in the AFM.

(k) In normal operation, the general illumination level must not be less than 0.05 foot-candles when measured along the center lines of each tread and landing.

(l) The stairway must have a handrail on at least one side to allow occupants to steady themselves during moderate turbulence in flight. The handrail(s) must be constructed so there is no obstruction on them that will cause the user to release his/her grip or hinder the continuous movement of the hands along the handrail. The design must accommodate the stature of a 5th percentile female and a 95th percentile male.

(m) The public address system must be intelligible in the stairway during all flight phases.

(n) “Return to seat” signs must be installed and visible in the stairway both going up and down and at the stairway entrances.

(o) Appropriate placards must be located outside each main deck entrance to the lower lobe access stairs to indicate:

(1) The maximum number of occupants allowed in flight.

(2) Occupancy during flight is restricted to crewmembers that are trained in the procedures for the lower lobe compartments.

(3) Occupancy is prohibited during taxi, take-off, and landing.

(4) The stowage of cargo or passenger baggage is not allowed in the stair enclosure. This placard is also required at each stair landing.

(p) Passengers must be prevented from entering the stairway in the event of an emergency or when no flight attendant is present.

(q) The means required by condition (p) must be capable of being quickly opened from inside the stairway, even when crowding occurs at the passenger cabin side of the stair entrance.

(r) A means must be in place to preclude anyone from being trapped inside the stairway. If a locking mechanism is installed, it must be capable of being unlocked from either side without the aid of tools.

(s) There must be appropriate placards conspicuously located as follows:

(1) Inside the stairs on or near each exit to the main deck defining the operating instructions for the door.

(2) On the cabin side, when the door is closed, no higher than 4 feet from the floor, indicating that the door is not an emergency exit. For the placards required by condition (s) the following applies:

(3) Placards must be readable from a distance of 30 inches under emergency lighting conditions.

(4) Placards must be illuminated to at least 160 micro-lamberts under emergency lighting conditions.

(t) There shall be a means (visible and audible) to notify an occupant of the stairway of the need to don supplemental oxygen equipment in the event of a decompression. The aural and visual alerts must activate before the cabin pressure altitude exceeds 15,000 feet.

(u) A means must be available, in the event of failure of the airplane's main power system, or of the normal stairway lighting system, for emergency illumination to be automatically provided in the stairway.

(1) This emergency illumination must be independent of the main lighting system.

(2) The sources of general illumination may be common to both the emergency and the main lighting systems if the power supply to the emergency lighting system is independent of the power supply to the main lighting system.

(3) Emergency illumination must be provided so that, when measured along the centerlines of each tread and landing, the illumination is not less than 0.05 foot-candles.

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-2024-2542; Project Identifier MCAI-2023-00611-R” 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 the 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 Hye Yoon Jang, Aviation Safety Engineer, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; phone: (206) 231-3758; email: hye.yoon.jang@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA issued AD 2008-10-01, Amendment 39-15507 (73 FR 24856, May 6, 2008) (AD 2008-10-01), for Eurocopter France (now Airbus Helicopters) Model EC120B helicopters with spherical thrust bearings part number (P/N) 7050A3622036 having serial number LK0130, LK0142, LK0155, or LK0158, installed. AD 2008-10-01 was prompted by Direction generale de l'aviation civile France (DGAC), which was the aviation authority for France before the European Aviation Safety Agency, AD F-2006-040, dated February 15, 2006 (DGAC France AD F-2006-040), to address a batch of non-conforming spherical thrust bearings. AD 2008-10-01 requires removing any identified spherical thrust bearing and installing an airworthy spherical thrust bearing. The FAA issued AD 2008-10-01 to prevent failure of a spherical thrust bearing during flight, which, if not addressed, could cause the M/R system to separate from the helicopter, which would be catastrophic.

The FAA issued AD 2010-05-51, Amendment 39-16265 (75 FR 22510, April 29, 2010) (AD 2010-05-51), for Eurocopter France (now Airbus Helicopters) Model EC120B helicopters with a rotor hub P/N C622A1002103, C622A1002104, or C622A1002105, installed. AD 2010-05-51 was prompted by European Aviation Safety Agency, which was the aviation authority for France after the DGAC and before the European Union Aviation Safety Agency, Emergency AD 2010-0026-E, dated February 19, 2010 (European Aviation Safety Agency Emergency AD 2010-0026-E), to address failure of a rotor hub attachment area in one of the three drag damper fittings. AD 2010-05-51 requires repetitively inspecting the rotor hub, and depending on the results, sanding the area to inspect for cracks, and replacing the rotor hub if cracks are found. The FAA issued AD 2010-05-51 to prevent failure of a rotor hub, excessive vibrations, loss of an M/R blade, and subsequent loss of control of the helicopter.

Since the FAA issued AD 2008-10-01 and AD 2010-05-51, EASA, which is the Technical Agent for the Member States of the European Union (including France), has issued EASA AD 2023-0083, dated April 19, 2023 (EASA AD 2023-0083), to supersede DGAC France AD F-2006-040 and European Aviation Safety Agency Emergency AD 2010-0026-E. EASA advises that airworthiness limitations instructions are identified as mandatory for continued airworthiness and that Revision 3 of AH [Airbus Helicopters] EC 120 B Chapter 4 ALS, dated July 18, 2022, was issued to introduce new, or more restrictive tasks, or both, including incorporation of the requirements of DGAC France AD F-2006-040 and EASA Emergency AD 2010-0026-E. Consequently, EASA AD 2023-0083 retains the requirements of DGAC France AD F-2006-040 and European Aviation Safety Agency Emergency AD 2010-0026-E and requires accomplishing the actions specified in, and the incorporation into the Aircraft Maintenance Programme (AMP) of, AH [Airbus Helicopters] EC 120 B Chapter 4 ALS, Revision 3, dated July 18, 2022. According to EASA, failure to accomplish these instructions could result in an unsafe condition. You may examine EASA AD 2023-0083 in the AD docket at regulations.gov under Docket No. FAA-2024-2542.

Lastly, since the FAA issued AD 2008-10-01 and AD 2010-05-51, Eurocopter France changed its name to Airbus Helicopters; this NPRM reflects that change.

The FAA reviewed EASA AD 2023-0083, which requires replacing components before exceeding their life limits and accomplishing all applicable maintenance tasks within thresholds and intervals specified in the ALS as defined within. Depending on the results of the maintenance tasks, EASA AD 2023-0083 requires accomplishing corrective action(s) or contacting AH [Airbus Helicopters] for approved instructions and accomplishing those instructions.

Additionally, EASA AD 2023-0083 requires revising the AMP by incorporating the limitations, tasks, and associated thresholds and intervals described in the specified ALS, as applicable. Revising the AMP constitutes terminating action for the requirement to record accomplishment of the actions of replacing components before exceeding their life limits and accomplishing maintenance tasks within thresholds and intervals specified in the applicable ALS as required by EASA AD 2023-0083 for demonstration of AD compliance on a continued basis.

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

These products have been approved by the aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in its AD referenced 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 revising the ALS of the existing MM or ICAs and the existing approved maintenance or inspection program, as applicable, by incorporating new or more restrictive actions and associated thresholds and intervals, including any life limits, specified in EASA AD 2023-0083, described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this proposed AD and except as discussed under “Differences Between this Proposed AD and the EASA AD.”

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to incorporate EASA AD 2023-0083 by reference in the FAA final rule. Using common terms that are the same as the heading of a particular section in EASA AD 2023-0083 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2023-0083. Material referenced in EASA AD 2023-0083 for compliance will be available at regulations.gov under Docket No. FAA-2024-2542 after the FAA final rule is published.

EASA AD 2023-0083 requires, as individual tasks, replacing certain components before exceeding applicable life limits, accomplishing certain maintenance tasks within thresholds and intervals as specified in the ALS, as defined within, and depending on the results, accomplishing corrective action(s), whereas this proposed AD would not. EASA AD 2023-0083 also requires revising the approved AMP to incorporate the limitations, tasks, and associated thresholds and intervals described in that ALS within 12 months, whereas this proposed AD would require revising the ALS of the existing MM or ICAs and the existing approved maintenance or inspection program, as applicable, by incorporating the limitations, tasks, and associated thresholds and intervals described in that ALS within 30 days, and clarifies that if the initial instance of an incorporated limitation or threshold therein is reached before 30 days after the effective date of the final rule of this proposed AD, you still have up to 30 days after the effective date of the final rule of this proposed AD to accomplish the corresponding task.

Lastly, the material referenced in “the ALS,” as defined in EASA AD 2023-0083, specifies contacting Airbus [Helicopters] if there is a crack in the rotor hub, whereas this proposed AD would not require contacting Airbus Helicopters.

The FAA estimates that this AD, if adopted as proposed, would affect 65 helicopters of U.S. registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this proposed AD.

Revising the ALS of the existing MM or ICAs and the existing approved maintenance or inspection program, as applicable, would take 1 work-hour, at an estimated cost of $85 per helicopter and $5,525 for the U.S. fleet.

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 that the 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:

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2024-2541; Project Identifier MCAI-2023-00006-R 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 Hye Yoon Jang, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; phone: (206) 231-3758; email: Hye.Yoon.Jang@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.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2023-0002, dated January 5, 2023 (EASA AD 2023-0002) (also referred to as the MCAI), to correct an unsafe condition on Airbus Helicopters Model SA 341 G and SA 342 J (Gazelle) helicopters if equipped with a pilot collective pitch stick having part number (P/N) 341A27-5041-0057, P/N 341A27-5041-0058, P/N 341A27-5041-0060, P/N 341A27-5041-0063, P/N 341A27-5041-0064, P/N 341A27-5041-0066, P/N 341A27-5041-0067, or P/N 341A27-5041-0068. The MCAI states that a pilot collective pitch stick handle grip broke into two pieces when a maintenance technician pulled the handle grip during helicopter maintenance. According to the MCAI, following investigation and analysis, the handle grip material (Rilsan) is sensitive to aging, with consequent degradation of the structural strength of the handle grip.

The FAA is proposing this AD to prevent failure of the handle grip, which if not addressed, could result in reduced integrity of the flight control system and subsequent loss of control of the helicopter.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2024-2541.

EASA AD 2023-0002 requires replacing handle grips P/N 41A27-1377-00 installed on pilot collective pitch sticks before June 15, 2022, and replacing certain part-numbered pilot collective pitch sticks complete with a handle grip. EASA AD 2023-0002 also prohibits installing the affected handle grips and pilot collective pitch sticks equipped with an affected handle grip on any helicopter. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

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

This proposed AD would require accomplishing the actions specified in EASA AD 2023-0002, described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this proposed AD and except as discussed under “Differences Between this NPRM and the MCAI.”

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to incorporate EASA AD 2023-0002 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2023-0002 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in EASA AD 2023-0002 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2023-0002. Material referenced in EASA AD 2023-0002 for compliance will be available at regulations.gov under Docket No. FAA-2024-2541 after the FAA final rule is published.

The MCAI requires using Airbus Helicopters ASB SA341 67.06 and ASB SA342 67.06 (co-published as one document and referred to as ASB No. “GAZ-67.06”), Revision 0, dated June 15, 2022, for compliance, and allows using future revisions of that material, whereas this proposed AD would instead require using Airbus Helicopters ASB No. GAZ-67.06, Revision 1, dated November 2, 2022, and allows using future revisions of that material as specified in the Ref. Publications section of EASA AD 2023-0002, which is proposed for incorporation.

The FAA estimates that this AD, if adopted as proposed, would affect 16 helicopters of U.S. registry.

Replacing the collective pitch handle grip would take 4 work-hours and parts would cost $230 for an estimated cost of $570 per helicopter and $9,120 for the U.S. fleet.

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:

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

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should submit only one time if comments are filed electronically, or commenters should send only one copy of written comments if comments are filed in writing.

The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The FAA may change this proposal in light of the comments it receives.

Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

An electronic copy of this document may be downloaded through the internet at www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Operations office (see ADDRESSES section for address, phone number, and hours of operations). An informal docket may also be examined during regular business hours at the office of the Eastern Service Center, Federal Aviation Administration, Room 210, 1701 Columbia Ave., College Park, GA, 30337.

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

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

This action proposes to amend 14 CFR part 71 by amending Class E airspace extending upward from 700 feet above the surface for Goldsboro, NC, by adding airspace within a 6-mile radius of Wayne Memorial Hospital Inc. Heliport, Goldsboro, NC. Additionally, this would remove the city associated with the airports in the airspace legal description header and update Wayne Executive Jetport, NC, and Mount Olive Municipal Airport, NC, to comply with changes to FAA Order JO 7400.2P, Procedures for Handling Airspace Matters. Also, this action would replace the terms Notice to Airmen with Notice to Air Missions and Airport/Facility Directory with Chart Supplement in the Class D description. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations in the area.

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

This proposal would be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” prior to any FAA final regulatory action.

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

In FR Doc. 2024-25876 beginning on page 88684 in the issue of Friday, November 8, 2024, make the following correction:

On page 88685, in the third column, correct the heading “C. Assessment of the JPMA Request” to read “C. Assessment of The Toy Association Request”.

On August 30, 2024, OSHA published in the Federal Register a Notice of Proposed Rulemaking (NPRM) for Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings. The proposed standard would apply to all employers conducting outdoor and indoor work in all general industry, construction, maritime, and agriculture sectors where OSHA has jurisdiction. The standard would require employers to create a plan to evaluate and control heat hazards in their workplace. It would clarify employer obligations and the steps necessary to effectively protect employees from hazardous heat.

The public comment period for the NPRM was to close on December 30, 2024, 120 days after publication of the NPRM. However, OSHA received requests from stakeholders to extend the public comment period ( see, e.g., Document ID 18667, 18380, 18373, 18664). Stakeholders requested additional time to carefully review the questions in the NPRM, gather data, and prepare their submissions. Several noted that the current deadline falls during the holiday season, when personal schedules may make finalizing comments difficult.

OSHA agrees to an extension of the public comment period and believes a 15-day extension is sufficient and appropriate to balance the agency's need for stakeholder input with the agency's desire to proceed with the rulemaking in a timely manner. The comment period extension will also avoid the comment deadline falling during the holiday season. Therefore, OSHA is extending the public comment period until January 14, 2025.

Additionally, several commenters (see, e.g., Document ID 18377, 18373, 18345) requested that OSHA hold a public hearing. OSHA agrees to hold a fully virtual public hearing, which will begin June 16, 2025, and continue on subsequent weekdays, if necessary. Witnesses are welcome to testify about any topics, issues, or concerns they have with the proposed rule.

OSHA invites interested persons to participate in this rulemaking by providing oral testimony and documentary evidence at the informal public hearing to provide the agency with the best available evidence to use in developing a final rule. The public hearing will be fully virtual to provide the opportunity for more stakeholders from across the country to participate in and/or observe the hearing without the financial and logistical burden of traveling to Washington, DC to attend in person.

Pursuant to 29 CFR 1911.15(a) and 5 U.S.C. 553(c), members of the public have an opportunity at the informal public hearing to provide oral testimony and evidence on issues raised by the proposal. An administrative law judge (ALJ) will preside over the hearing and will resolve any procedural matters relating to the hearing.

OSHA's regulation governing public hearings (29 CFR 1911.15) establishes the purpose and procedures of informal public hearings. Although the presiding officer of the hearing is an ALJ and questioning of witnesses is allowed on crucial issues, the proceeding is largely informal and essentially legislative in purpose. Therefore, the hearing provides interested persons with an opportunity to make oral presentations in the absence of rigid procedures that could impede or protract the rulemaking process. The hearing is not an adjudicative proceeding subject to the Federal Rules of Evidence. Instead, it is an informal administrative proceeding convened for the purpose of gathering and clarifying information. Accordingly, questions of relevance, procedure, and participation generally will be resolved in favor of developing a clear, accurate, and complete record.

Although the ALJ presiding over the hearing makes no decision or recommendation on the merits of the proposal, the ALJ has the responsibility and authority necessary to ensure that the hearing progresses at a reasonable pace and in an orderly manner. To ensure a full and fair hearing, the ALJ has the power to regulate the course of the proceedings; dispose of procedural requests, objections, and comparable matters; confine presentations to matters pertinent to the issues the proposed rule raises; use appropriate means to regulate the conduct of persons present at the hearing; question witnesses and permit others to do so; limit the time for such questioning; and leave the record open for a reasonable time after the hearing for the submission of additional data, evidence, comments, and arguments from those who participated in the hearing (29 CFR 1911.16). In addition, pursuant to 29 CFR 1911.4, the Assistant Secretary may, on reasonable notice, issue additional or alternative procedures to expedite the proceedings, to provide greater procedural protections to interested persons, or to further any other good cause consistent with applicable law.

At the close of the hearing, there will be a post-hearing comment period during which those persons who submitted a NOITA may submit final briefs, arguments, summations, and additional data and information to OSHA.

Interested persons who intend to provide oral testimony or documentary evidence at the hearing must file a written NOITA prior to the hearing and in accordance with the instructions in the ADDRESSES section earlier in this document. To testify or question other witnesses at the hearing, interested persons must electronically submit their NOITA on or before May 2, 2025. The NOITA must provide the following information:

(1) Name, address, email address, and telephone number of each individual who will give oral testimony;

(2) Name of the establishment or organization each individual represents, if any;

(3) Occupational title and position of each individual testifying; and

(4) A brief statement of the position each individual will take with respect to the issues raised by the proposed rule.

The agency will consider the information in each submission when setting the hearing schedule. Before the hearing, OSHA will make the hearing procedures and hearing schedule available at https://www.osha.gov/heat-exposure/rulemaking and in the docket. OSHA emphasizes that the hearing is open to the public; however, only individuals who file a NOITA may testify at the hearing.

Witnesses will be asked to specify the approximate amount of time requested for each individual or group's testimony (5, 10, 15, or 20 minutes). Individuals or groups who request more than 10 minutes to present their oral testimony at the hearing or who will submit documentary evidence at the hearing must submit the full text of their testimony and all documentary evidence no later than May 23, 2025. The agency will review each submission and determine if the information it contains warrants the amount of time the individual requested for the presentation. If OSHA believes the requested time is excessive, the agency will allocate an appropriate amount of time for the presentation. The agency also may limit to 5 minutes the presentation of any participant who fails to comply substantially with these procedural requirements and may request that the participant return for questioning at a later time. Before the hearing, OSHA will notify participants of the time the agency will allow for their presentation and, if less than requested, the reasons for its decision.

Following the close of the hearing and the post-hearing comment period, the ALJ will certify the record to the Assistant Secretary of Labor for Occupational Safety and Health. The record will consist of all written comments, oral testimony, and documentary evidence received during the proceeding. The ALJ, however, will not make or recommend any decisions as to the content of the final standard. Following certification of the record, OSHA will review all the evidence received into the record and will issue the final rule based on the record as a whole.

This document was prepared under the direction of Douglas L. Parker, Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC 20210. It is issued under the authority of sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); 5 U.S.C. 553; Secretary of Labor's Order No. 8-2020 (85 FR 58393); and 29 CFR part 1911.

Throughout this document, “we,” “us” and “our” refer to the EPA.

Table 1 lists the rules addressed by this proposal with the dates that they were adopted by the local air agency and submitted by the California Air Resources Board (CARB).

On July 10, 2024, the submittal for BAAQMD Rule 9-4 and Rule 9-6 were deemed complete by operation of law to meet the completeness criteria in 40 CFR part 51, appendix V.

We approved an earlier version of Rule 9-4 into the SIP on January 7, 1986 (47 FR 29231). The BAAQMD adopted revisions to the SIP-approved version on March 15, 2023, and CARB submitted them to us on January 10, 2024. If we take final action to approve the March 15, 2023 version of Rule 9-4, this version will replace the previously approved version of this rule in the SIP.

There is no previous version of Rule 9-6 in the SIP. The BAAQMD locally adopted an earlier version of Rule 9-6 on April 1, 1992, and an amended version of the rule (amended March 15, 2023) was submitted by CARB to the EPA on January 10, 2024.

Emissions of NO X contribute to the production of ground-level ozone, smog and particulate matter, which harm human health and the environment. Section 110(a) of the CAA requires states to submit plans that provide for implementation, maintenance, and enforcement of the NAAQS. The CAA section 172(c)(1) and section 182 requires areas that are designated as “Moderate” or above for ozone nonattainment to implement Reasonably Available Control Technology (RACT) for specific sources. The San Francisco Bay Area is designated as “Marginal” nonattainment for the 2015, 2008, and 1997 8-hour ozone National Ambient Air Quality Standards (NAAQS). 1 The San Francisco Bay Area is a Marginal ozone nonattainment area, which is a less severe classification than Moderate, and thus is not required to implement RACT for the sources regulated by the submitted rules.

CAA section 189 requires areas that are are designated Moderate or above for particulate matter nonattainment to assure that reasonably available control measures (RACM) are being implemented within the nonattainment area. The San Francisco Bay Area was designated as Moderate nonattainment for the 2006 24-hour PM 2.5 NAAQS (74 FR 58688, November 13, 2009). In 2017, the EPA made a determination of attainment by the attainment date (December 31, 2015) for this standard based on air monitoring data. 2 The EPA generally evaluates PM 2.5 RACM requirements in the context of broader attainment planning actions as opposed to individual rule submissions. Nonetheless, pursuant to 40 CFR 51.1015(a), an EPA determination that a Moderate PM 2.5 nonattainment area has attained the PM 2.5 NAAQS suspends the requirement for the State to demonstrate RACM. Thus, although the State may choose to rely on reductions from these rules in a future plan or RACM demonstration, we will not evaluate the rules for PM 2.5 RACM in this rulemaking. Accordingly, Rules 9-4 and 9-6 are not being evaluated for RACT or RACM at this time.

BAAQMD Rule 9-4 is an amended rule that sets emission limits for natural gas-fired furnaces sold, installed, or offered for sale within the District. Amended Rule 9-4 instates more stringent emission requirements that prohibit the sale or installation of natural gas-fired furnaces manufactured after January 1, 2024, that emit more than 14 ng/J (nanograms per Joule) of NO X and natural gas-fired furnaces manufactured after January 1, 2029, that emit more than 0.0 ng/J of NO X . All natural gas-fired furnaces must be certified for sale, installation, or offering for sale within the District. Test methods and procedures are provided in Rule 9-4 for compliance demonstrations.

BAAQMD Rule 9-6 is a locally adopted rule that has not been previously approved into the SIP. The rule applies similar emission limit timelines for natural gas-fired water heaters and boilers, where appliances with higher heat input ratings receive a lower NO X emission limit at a later date. Natural gas-fired appliances with a 75,000 British Thermal Unit (BTU)/hour or less rated heat input capacity manufactured after January 1, 2027, cannot be sold, installed, or offered for sale within the district if the appliance emits more than 0 ng/J of NO X . Mid-range and large appliances (75,001 BTU/hour-2,000,000 BTU/hour) manufactured after January 1, 2031, cannot be sold, installed, or offered for sale within the district if the appliance emits more than 0.0 ng/J of NO X . 3 Mobile Home Water Heaters manufactured after January 1, 2008, cannot emit more than 40 ng/J of NO X . Pools and Spa Heaters manufactured after January 1, 2008, cannot emit more than 40 ng/J of NO X and units manufactured after January 1, 2013, cannot emit more than 14 ng/J of NO X . Appliances subject to Rule 9-6 must be certified for sale or installation within the District. Test methods and procedures are provided for certification for compliance demonstration. The EPA's technical support document (TSD) has more information about these rules.

Rules in the SIP must be enforceable (see CAA section 110(a)(2)), and must not interfere with applicable requirements concerning attainment and reasonable further progress or other CAA requirements (see CAA section 110(l)). As discussed above, these rules are not being evaluated for RACT or RACM in this rulemaking.

Guidance and policy documents that we used to evaluate enforceability, revision/relaxation and rule stringency requirements for the applicable criteria pollutants include the following:

1. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,” EPA, May 25, 1988 (the Bluebook, revised January 11, 1990).

2. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001 (the Little Bluebook).

Rule 9-4 and Rule 9-6 improve the SIP by establishing more stringent emission limits. The rules are largely consistent with CAA requirements and relevant guidance regarding enforceability and SIP revisions. Rule provisions which do not meet the evaluation criteria are summarized below and discussed further in the TSD.

The District has committed to adopt specific enforceable measures to remedy the identified deficiencies within one year of the EPA's action, and CARB has committed to submit the adopted revisions to the EPA within 12 months of the effective date of the EPA's final conditional approval. These commitment letters are included in the docket for the action, and are described in the TSD.

The EPA is proposing to determine that the following provisions in Rule 9-4 and Rule 9-6 do not satisfy the requirements of section 110 of the CAA.

1. Rule 9-4 section 201 contains an outdated reference to “Section 4.2.35 of the Code of Federal Regulations (CFR), Title 10, Part 430, Subpart B, Appendix N.” This reference does not exist in the current version of the CFR and thus, does not properly define a variable used in calculating emissions.

2. Rule 9-4 section 401 contains an outdated reference to “Section 3.1 of the Code of Federal Regulations, Title 10, Part 430, Subpart B, Appendix N.” This reference does not exist in the current version of the CFR and as a consequence does not contain any test method language to verify compliance.

3. Rule 9-4 section 402.2 references South Coast Air Quality Management District (SCAQMD) Rule 1111 certification methods for compliance determination purposes. These certification methods have not been submitted for approval into the SIP and Rule 9-4 does not reference an EPA approved version of the rule. As a result, the certification methods in section 402.2 cannot be utilized to ensure enforceability under the CAA.

4. Rule 9-4 Section 402 does not require emissions test results used for certifications to be reported to the Air Pollution Control Officer (APCO) when certification takes place through the District. The rule also allows for the use of SCAQMD's certification method. Although, as discussed in the previous deficiency, that manner in which that method is referenced is not approvable, we note that the SCAQMD method requires submittal of the test results, in contrast to the District-only certification option. As a result, the District's certification method does not provide a sufficiently enforceable means for determining compliance.

5. Rule 9-4 Section 601.3 and 601.4 contain references to Method ST-5 and Method ST-14 from the Bay Area Manual of Procedures. The procedures and test methods have not previously been EPA approved and Rule 9-6 does not reference an EPA approved version of the rule.

6. Rule 9-6 Section 205 contains an outdated reference to “Section 6.1.3 of the Code of Federal Regulation, Title 10, Part 430, Subpart B, Appendix E.” However, section 6.1.3 does not exist in the current CFR.

7. Rule 9-6 Section 402.2 references certification methods from SCAQMD Rule 1121 and 1146.2. These methods have not been previously EPA approved and lie outside the SIP.

The TSD includes recommendations for the next time BAAQMD amends the rules.

Section 110(k)(4) of the CAA authorizes the EPA to conditionally approve a plan revision based on a commitment by the State to adopt specific enforceable measures by a date certain but not later than one year after the date of the plan approval. 42 U.S.C. 7410(k)(4). In this instance, the enforceable measures that the State must submit are new or revised rules that correct the rule deficiencies identified above. On October 30, 2024, the State transmitted a commitment letter, dated October 2, 2024, from the BAAQMD committing to correct the deficiencies identified in this proposed action. The State also submitted a letter, dated October 30, 2024, from CARB committing to submit the revised rules to the EPA within 12 months of the publication of the final conditional approval by the EPA. As authorized in section 110(k)(4) of the CAA, the EPA proposes to conditionally approve the submitted rules based on the commitment by the state to adopt specific enforceable measures by a date certain but not later than one year after the date of the plan approval.

If this proposed conditional approval is finalized as proposed, and the BAAQMD or the State fail to comply with this commitment, the conditional approval would convert to a disapproval.

We will accept comments from the public on this proposal until December 30, 2024. If we take final action to approve the submitted rules, our final action will incorporate these rules into the federally enforceable SIP.

In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference BAAQMD, Rule 9-4, Nitrogen Oxides from Natural Gas-Fired Furnaces, amended on March 15, 2023 and BAAQMD, Rule 9-6, Nitrogen Oxides from Natural Gas-Fired Boilers and Water Heaters, adopted March 15, 2023, as discussed in section I. of this document. The EPA has made, and will continue to make, these materials available through https://www.regulations.gov and at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

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

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

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

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

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

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

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

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

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

Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, Feb. 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on communities with environmental justice (EJ) concerns to the greatest extent practicable and permitted by law. Executive Order 14096 (Revitalizing Our Nation's Commitment to Environmental Justice for All, 88 FR 25251, April 26, 2023) builds on and supplements E.O. 12898 and defines EJ as, among other things, “the just treatment and meaningful involvement of all people, regardless of income, race, color, national origin, or Tribal affiliation, or disability in agency decision-making and other Federal activities that affect human health and the environment.”

The air agency evaluated EJ considerations as part of its rule development process even though the CAA and applicable implementing regulations neither prohibit nor require an evaluation. The EPA is taking action under the CAA on bases independent of the air agency's evaluation of EJ. Due to the nature of the action being taken here, this action is expected to have a neutral to positive impact on the air quality of the affected area. In addition, there is no information in the record upon which this decision is based that is inconsistent with the stated goal of Executive Orders 12898 and 14096 of achieving EJ for communities with EJ concerns.

TSCA section 5(a)(2) (15 U.S.C. 2604(a)(2)) authorizes EPA to determine that a use of a chemical substance is a “significant new use.” EPA must make this determination by rule after considering all relevant factors, including the factors in TSCA section 5(a)(2) (see also the discussion in Unit II.).

EPA is proposing SNURs for chemical substances that were the subject of PMNs as discussed in Unit III. These SNURs, if finalized as proposed, would require persons who intend to manufacture or process any of these chemical substances for an activity that is designated as a significant new use to notify EPA at least 90 days before commencing that activity.

This action applies to you if you manufacture, process, or use the chemical substances contained in this proposed rule. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Manufacturers or processors of one or more subject chemical substances (NAICS codes 325 and 324110), e.g., chemical manufacturing and petroleum refineries.

This action may also apply to certain entities through pre-existing import certification and export notification requirements under TSCA ( https://www.epa.gov/tsca-import-export-requirements ).

Chemical importers are subject to TSCA section 13 (15 U.S.C. 2612), the requirements promulgated at 19 CFR 12.118 through 12.127, 19 CFR 127.28, and the EPA policy in support of import certification at 40 CFR part 707, subpart B. Chemical importers must certify that the shipment of the chemical substance complies with all applicable rules and orders under TSCA, including regulations issued under TSCA sections 5, 6, 7 and Title IV.

Pursuant to 40 CFR 721.20, any persons who export or intend to export a chemical substance that is the subject of this proposed rule on or after December 30, 2024 are subject to TSCA section 12(b) (15 U.S.C. 2611(b)) and must comply with the export notification requirements in 40 CFR part 707, subpart D.

EPA has evaluated the potential costs of establishing SNUN reporting requirements for potential manufacturers (including importers) and processors of the chemical substances subject to these proposed SNURs. This analysis, which is available in the docket, is briefly summarized here.

If a SNUN is submitted, costs are an estimated $45,000 per SNUN submission for large business submitters and $14,500 for small business submitters. These estimates include the cost to prepare and submit the SNUN (including registration for EPA's Central Data Exchange (CDX)), and the payment of a user fee. Businesses that submit a SNUN would be subject to either a $37,000 user fee required by 40 CFR 700.45(c)(2)(ii) and (d), or, if they are a small business as defined at 13 CFR 121.201, a reduced user fee of $6,480 (40 CFR 700.45(c)(1)(ii) and (d)) per fiscal year 2022. The costs of submission for SNUNs will not be incurred by any company unless a company decides to pursue a significant new use as defined in these SNURs. Additionally, these estimates reflect the costs and fees as they are known at the time of this rulemaking.

EPA has also evaluated the potential costs associated with the export notification requirements under TSCA section 12(b) and the implementing regulations at 40 CFR part 707, subpart D. For persons exporting a substance that is the subject of a SNUR, a one-time notice to EPA must be provided for the first export or intended export to a particular country. The total costs of export notification will vary by chemical, depending on the number of required notifications ( i.e., the number of countries to which the chemical is exported). While EPA is unable to make any estimate of the likely number of export notifications for the chemical substances covered by these SNURs, as stated in the accompanying economic analysis, the estimated cost of the export notification requirement on a per unit basis is approximately $106.

Do not submit CBI to EPA through email or https://www.regulations.gov. If you wish to include CBI in your comment, please follow the applicable instructions at https://www.epa.gov/dockets/commenting-epa-dockets#rules and clearly mark the information that you claim to be CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR parts 2 and 703.

When preparing and submitting your comments, see the commenting tips at https://www.epa.gov//epa-dockets.

This unit provides general information about SNURs. For additional information about EPA's new chemical program go to https://www.epa.gov/reviewing-new-chemicals-under-toxic-substances-control-act-tsca.

TSCA section 5(a)(2) states that EPA's determination that a use of a chemical substance is a significant new use must be made after consideration of all relevant factors, including:

• The projected volume of manufacturing and processing of a chemical substance.

• The extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance.

• The extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance.

• The reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance.

In determining what would constitute a significant new use for the chemical substances that are the subject of these SNURs, EPA considered relevant information about the toxicity of the chemical substances, and potential human exposures and environmental releases that may be associated with the substances, in the context of the four bulleted TSCA section 5(a)(2) factors listed in this unit and discussed in Unit III.

These proposed SNURs include PMN substances that received a “not likely to present an unreasonable risk” determination in TSCA section 5(a)(3)(c). During its review of these chemicals, EPA identified certain conditions of use that are not intended by the submitters, but reasonably foreseen to occur. EPA is proposing to designate those conditions of use as significant new uses.

Under TSCA, no person may manufacture a new chemical substance or manufacture or process a chemical substance for a significant new use until EPA makes a determination as described in TSCA section 5(a) and takes any required action. The issuance of a SNUR is not a risk determination itself, only a notification requirement for “significant new uses,” so that the Agency has the opportunity to review the SNUN for the significant new use and make a TSCA section 5(a)(3) risk determination.

During review of the PMNs submitted for the chemical substances that are the subject of these proposed SNURs and as further discussed in Unit III., EPA identified certain other conditions of use, in addition to those conditions of use intended by the submitter. EPA has determined that the chemical under the conditions of use is not likely to present an unreasonable risk. However, EPA has not assessed risks associated with certain conditions of use. EPA is proposing to designate these other circumstances of use as significant new uses. As a result, those significant new uses cannot occur without going through a separate, subsequent EPA review and determination process associated with a SNUN.

EPA is proposing these SNURs because the Agency wants:

• To be able to complete its review and determination on each of the PMN substances, while deferring analysis on the significant new uses proposed in these rules unless and until the Agency receives a SNUN.

• To have an opportunity to review and evaluate data submitted in a SNUN before the submitter begins manufacturing or processing a listed chemical substance for the described significant new use.

• To be obligated to make a determination under TSCA section 5(a)(3) regarding the use described in the SNUN, under the conditions of use. The Agency will either determine under TSCA section 5(a)(3)(C) that the significant new use is not likely to present an unreasonable risk, including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant by the Administrator under the conditions of use, or make a determination under TSCA section 5(a)(3)(A) or (B) and take the required regulatory action associated with the determination, before manufacture or processing for the significant new use of the chemical substance can occur.

Issuance of a proposed SNUR for a chemical substance does not signify that the chemical substance is listed on the TSCA Chemical Substance Inventory (TSCA Inventory). Guidance on how to determine if a chemical substance is on the TSCA Inventory is available at https://www.epa.gov/ tsca-inventory.

EPA is proposing to establish certain significant new uses which have been claimed as CBI subject to Agency confidentiality regulations at 40 CFR part 2 and 40 CFR part 720, subpart E. Absent a final determination or other disposition of the confidentiality claim under 40 CFR part 2 procedures, EPA is required to keep this information confidential. EPA promulgated a procedure to deal with the situation where a specific significant new use is CBI, at 40 CFR 721.11.

Under these procedures a manufacturer or processor may request EPA to identify the confidential significant new use under the rule. The manufacturer or processor must show that it has a bona fide intent to manufacture or process the chemical substance and must identify the specific use for which it intends to manufacture or process the chemical substance. If EPA concludes that the person has shown a bona fide intent to manufacture or process the chemical substance, EPA will identify the confidential significant new use to that person. Since most of the chemical identities of the chemical substances subject to these SNURs are also CBI, manufacturers and processors can combine the bona fide submission under the procedure in 40 CFR 721.11 into a single step.

General provisions for SNURs appear in 40 CFR part 721, subpart A. These provisions describe persons subject to SNURs, recordkeeping requirements, exemptions to reporting requirements, and applicability of the rule to uses occurring before the effective date of the rule. Pursuant to 40 CFR 721.1(c), persons subject to SNURs must comply with the same requirements and EPA regulatory procedures as submitters of PMNs under TSCA section 5(a)(1)(A). In particular, these requirements include the information submission requirements of TSCA sections 5(b) and 5(d)(1), the exemptions authorized by TSCA sections 5(h)(1), 5(h)(2), 5(h)(3), and 5(h)(5) and the regulations at 40 CFR part 720. In addition, provisions relating to user fees appear at 40 CFR part 700.

Once EPA receives a SNUN, EPA must either determine that the significant new use is not likely to present an unreasonable risk of injury under the conditions of use for the chemical substance or take such regulatory action as is associated with an alternative determination under TSCA section 5 before the manufacture (including import) or processing for the significant new use can commence. If EPA determines that the significant new use of the chemical substance is not likely to present an unreasonable risk, EPA is required under TSCA section 5(g) to make public, and submit for publication in the Federal Register , a statement of EPA's findings.

As discussed in Unit I.C.2., persons who export or intend to export a chemical substance identified in a proposed or final SNUR are subject to the export notification provisions of TSCA section 12(b), and persons who import a chemical substance identified in a final SNUR are subject to the TSCA section 13 import certification requirements. See also https://www.epa.gov/tsca-import-export-requirements.

To establish a significant new use, EPA must determine that the use is not ongoing. The chemical substances subject to this proposed rule have undergone premanufacture review. In cases where EPA has not received a notice of commencement (NOC) and the chemical substance has not been added to the TSCA Inventory, no person may commence such activities without first submitting a PMN. Therefore, for chemical substances for which an NOC has not been submitted EPA concludes that the designated significant new uses are not ongoing. The identities of many of the chemical substances subject to this proposed rule have been claimed as confidential per 40 CFR 720.85 and the PMN submitter did not intend to engage in the other circumstances of use that are designated as significant new uses for the chemical substances subject to this proposed rule. Based on this, the Agency believes that it is highly unlikely that any of the significant new uses identified in Unit III. are ongoing.

When the chemical substances identified are added to the TSCA Inventory, EPA recognizes that, before the rule is effective, other persons might engage in a use that has been identified as a significant new use. Persons who begin manufacture or processing of the chemical substances for a significant new use identified on or after the designated cutoff date specified in Unit III.A. would have to cease any such activity upon the effective date of the final rule. To resume their activities, these persons would have to first comply with all applicable SNUR notification requirements and EPA would have to take action under TSCA section 5 allowing manufacture or processing to proceed.

SNUNs must be submitted on EPA Form No. 7710-25, generated using e-PMN software, and submitted to the Agency in accordance with the procedures set forth in 40 CFR 720.40 and 721.25. E-PMN software is available electronically at https://www.epa.gov/reviewing-new-chemicals-under-toxic-substances-control-act-tsca.

EPA recognizes that TSCA section 5 does not require development of any particular new information ( e.g., generating test data) before submission of a SNUN. There is an exception: If a person is required to submit information for a chemical substance pursuant to a rule, order or consent agreement under TSCA section 4, then TSCA section 5(b)(1)(A) requires such information to be submitted to EPA at the time of submission of the SNUN.

In the absence of a rule, TSCA order, or consent agreement under TSCA section 4 covering the chemical substance, persons are required only to submit information in their possession or control and to describe any other information known to or reasonably ascertainable by them (see 40 CFR 720.50). However, upon review of PMNs and SNUNs, the Agency has the authority to require appropriate testing. To assist with EPA's analysis of the SNUN, submitters are encouraged, but not required, to provide the potentially useful information identified for the chemical substance in Unit III.C.

EPA strongly encourages persons, before performing any testing, to consult with the Agency pertaining to protocol selection. Furthermore, pursuant to TSCA section 4(h), which pertains to reduction of testing in vertebrate animals, EPA encourages consultation with the Agency on the use of alternative test methods and strategies (also called New Approach Methodologies, or NAMs), if available, to generate the recommended test data. EPA encourages dialog with Agency representatives to help determine how best the submitter can meet both the data needs and the objective of TSCA section 4(h). For more information on alternative test methods and strategies to reduce vertebrate animal testing, visit https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/alternative-test-methods-and-strategies-reduce.

The potentially useful information described in Unit III. may not be the only means of providing information to evaluate the chemical substance associated with the significant new uses. However, submitting a SNUN without any test data may increase the likelihood that EPA will take action under TSCA sections 5(e) or 5(f). EPA recommends that potential SNUN submitters contact EPA early enough so that they will be able to conduct the appropriate tests.

SNUN submitters should be aware that EPA will be better able to evaluate SNUNs which provide detailed information on the following:

• Human exposure and environmental release that may result from the significant new use of the chemical substances.

EPA designates November 29, 2024 as the cutoff date for determining whether the new use is ongoing. This designation is explained in more detail in Unit II.E.

For each chemical substance identified in Unit III.C., EPA provides the following information:

• PMN number (the proposed CFR citation assigned in the regulatory text section of this document).

• Chemical name (generic name, if the specific name is claimed as CBI).

• Chemical Abstracts Service Registry Number (CASRN) (if assigned for non-confidential chemical identities).

• Basis for the SNUR.

• Potentially useful information.

The regulatory text section of this document specifies the activities designated as significant new uses. Certain new uses, including production volume limits and other uses designated in the proposed rules, may be claimed as CBI.

The chemical substances have undergone premanufacture review. In addition to those conditions of use intended by the submitter, EPA has identified certain other circumstances of use. EPA has preliminarily determined that the chemicals under their conditions of use are not likely to present an unreasonable risk. However, EPA has not assessed risks associated with the other circumstances of use for these chemicals. EPA is proposing to designate these other circumstances of use as significant new uses. As a result, those significant new uses cannot occur without first going through a separate, subsequent EPA review and determination process associated with a SNUN.

The substances subject to the proposed rules in this document are as follows:

Chemical Name: Polyolefin polyamine succinimide, carbopolycycle alkoxylated (generic).

CASRN: Not available.

Basis for Action: The PMN states that the use of the PMN substance will be as a lubricating additive for engine oils, transmission and hydraulic fluid, and gear oil applications. Based on comparison to analogous chemical substances and the structural alert for aliphatic amines, EPA has identified concerns for irritation to the eyes, skin, and respiratory tract if the chemical substance is not used following the limitation noted. The conditions of use of the PMN substance as described in the PMN include the following protective measure:

• Use of the PMN substance only as a lubricating additive for engine oils, transmission and hydraulic fluid, and gear oil applications.

The proposed SNUR would designate as a “significant new use” the absence of this protective measure.

Potentially Useful Information: EPA has determined that certain information may be potentially useful to characterize the health effects of the PMN substance if a manufacturer or processor is considering submitting a SNUN for a significant new use that will be designated by this SNUR. EPA has determined that the results of skin irritation testing may be potentially useful to characterize the health effects of the PMN substance.

Chemical Name: Carbonmonocyclic alkene polymer with alkyl alkenoate, alkyl alkenoate, alkyl alkenoate and polyalkyldiene alkenoate (generic).

CASRN: Not available.

Basis for Action: The PMN states that the use of the PMN substance will be as a polymeric additive in gear oils. Based on comparison to analogous chemical substances, information provided in the Safety Data Sheet (SDS), and physical/chemical properties, EPA has identified concerns for skin and eye irritation and lung effects (lung overload) if the chemical substance is not used following the limitation noted. The conditions of use of the PMN substance as described in the PMN include the following protective measure:

• No manufacture, processing, or use of the PMN substance in any manner that results in worker inhalation exposure to the PMN substance.

The proposed SNUR would designate as a “significant new use” the absence of this protective measure.

Potentially Useful Information: EPA has determined that certain information may be potentially useful to characterize the health effects of the PMN substance if a manufacturer or processor is considering submitting a SNUN for a significant new use that will be designated by this SNUR. EPA has determined that the results of skin irritation, eye irritation, and specific target organ toxicity testing may be potentially useful to characterize the health effects of the PMN substance.

Chemical Name: 1-tetradecene, homopolymer, hydrogenated, by-products from, C28-42 fraction.

CASRN: 2263959-83-5.

Basis for Action: The PMN states that the use of the PMN substance will be as a base oil for crankcase motor oil, transmission oil, and other industrial applications such as compressor and gear fluids and consumer use as a carrier fluid for additives to motor oils and automatic transmission fluids. Based on comparison to an analogous chemical substance and on physical/chemical properties, EPA has identified concerns for blood, respiratory tract, and lung effects including aspiration hazard if the chemical substance is not used following the limitation noted. The conditions of use of the PMN substance as described in the PMN include the following protective measure:

• No processing of the PMN substance other than in an enclosed system when heated.

The proposed SNUR would designate as a “significant new use” the absence of this protective measure.

Potentially Useful Information: EPA has determined that certain information may be potentially useful to characterize the health effects of the PMN substance if a manufacturer or processor is considering submitting a SNUN for a significant new use that will be designated by this SNUR. EPA has determined that the results of specific target organ toxicity and pulmonary effects testing may be potentially useful to characterize the health effects of the PMN substance.

Chemical Name: Carbonic acid, ester, polymer with alkanediol (C=4,5) (generic).

CASRN: Not available.

Basis for Action: The PMN states that the generic (non-confidential) use of the PMN substance will be as a raw material for polyurethane. Based on test data submitted on the PMN substance, EPA has identified concerns for aquatic toxicity if the chemical substance is not used following the limitation noted. The condition of use of the PMN substance as described in the PMN includes the following protective measure:

• No release of the PMN substance resulting in surface water concentrations that exceed 200 ppb.

The proposed SNUR would designate as a “significant new use” the absence of this protective measure.

Potentially Useful Information: EPA has determined that certain information may be potentially useful to characterize the environmental effects of the PMN substance if a manufacturer or processor is considering submitting a SNUN for a significant new use that will be designated by this SNUR. EPA has determined that the results of chronic aquatic toxicity testing may be potentially useful to characterize the environmental effects of the PMN substance.

Chemical Name: Hydrolyzed collagen, polymer with aromatic isocyanate, N-triethoxysylil-alkanamine, pectic polysaccharide and poly alkyl alcohol (generic).

CASRN: Not available.

Basis for Action: The PMN states that the use of the PMN substance will be as an encapsulant for time-released delivery of fragrance. Based on potential changes to the molecular weight or composition of the PMN substance, EPA has identified concerns for lung toxicity if the chemical substance is not used following the limitation noted. The conditions of use of the PMN substance as described in the PMN include the following protective measure:

• Use of the PMN substance only as an encapsulant for time-released delivery of fragrance.

The proposed SNUR would designate as a “significant new use” the absence of this protective measure.

Potentially Useful Information: EPA has determined that certain information may be potentially useful to characterize the health effects of the PMN substance if a manufacturer or processor is considering submitting a SNUN for a significant new use that will be designated by this SNUR. EPA has determined that the results of pulmonary effects testing may be potentially useful to characterize the health effects of the PMN substance.

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

This action proposes to establish SNURs for new chemical substances that were the subject of PMNs. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866 (58 FR 51735, October 4, 1993), as amended by Executive Order 14094 (88 FR 21879, April 11, 2023).

According to the PRA (44 U.S.C. 3501 et seq. ), an agency may not conduct or sponsor, and a person is not required to respond to a collection of information that requires OMB approval under PRA, unless it has been approved by OMB and displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in title 40 of the CFR, after appearing in the Federal Register , are listed in 40 CFR part 9, and included on the related collection instrument or form, if applicable.

The information collection requirements related to SNURs have already been approved by OMB pursuant to PRA under OMB control number 2070-0038 (EPA ICR No. 1188). This action does not impose any burden requiring additional OMB approval. If an entity were to submit a SNUN to the Agency, the annual burden is estimated to average between 30 and 170 hours per submission. This burden estimate includes the time needed to review instructions, search existing data sources, gather and maintain the data needed, and complete, review, and submit the required SNUN.

EPA always welcomes your feedback on the burden estimates. Send any comments about the accuracy of the burden estimate, and any suggested methods for improving the collection instruments or instruction or minimizing respondent burden, including through the use of automated collection techniques.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA (5 U.S.C. 601 et seq. ). The requirement to submit a SNUN applies to any person (including small or large entities) who intends to engage in any activity described in the final rule as a “significant new use.” Because these uses are “new,” based on all information currently available to EPA, EPA has concluded that no small or large entities presently engage in such activities.

A SNUR requires that any person who intends to engage in such activity in the future must first notify EPA by submitting a SNUN. Although some small entities may decide to pursue a significant new use in the future, EPA cannot presently determine how many, if any, there may be. However, EPA's experience to date is that, in response to the promulgation of SNURs covering over 1,000 chemicals, the Agency receives only a small number of notices per year. For example, the number of SNUNs received was 16 in Federal fiscal year (FY) FY2018, five in FY2019, seven in FY2020, 13 in FY2021, 11 in FY2022, and 15 in FY2023, and only a fraction of these submissions were from small businesses.

In addition, the Agency currently offers relief to qualifying small businesses by reducing the SNUN submission fee from $37,000 to $6,480. This lower fee reduces the total reporting and recordkeeping cost of submitting a SNUN to about $14,500 per SNUN submission for qualifying small firms. Therefore, the potential economic impacts of complying with these proposed SNURs are not expected to be significant or adversely impact a substantial number of small entities. In a SNUR that published in the Federal Register of June 2, 1997 (62 FR 29684) (FRL-5597-1), the Agency presented its general determination that SNURs are not expected to have a significant economic impact on a substantial number of small entities, which was provided to the Chief Counsel for Advocacy of the Small Business Administration.

This action does not contain an unfunded mandate of $100 million or more (in 1995 dollars) in any one year as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. Based on EPA's experience with proposing and finalizing SNURs, State, local, and Tribal governments have not been impacted by SNURs, and EPA does not have any reasons to believe that any State, local, or Tribal government will be impacted by these SNURs. In addition, the estimated costs of this action to the private sector do not exceed $183 million or more in any one year (the 1995 dollars are adjusted to 2023 dollars for inflation using the GDP implicit price deflator). The estimated costs for this action are discussed in Unit I.D.

This action will not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it is not expected to have a substantial direct effect on 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. Accordingly, the requirements of Executive Order 13132 do not apply to this action.

This action will not have Tribal implications as specified in Executive Order 13175 (65 FR 67249, November 9, 2000), because it is not expected to have substantial direct effects on Indian Tribes, significantly or uniquely affect the communities of Indian Tribal governments and does not involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of Executive Order 13175 do not apply to this action.

This action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it does not concern an environmental health or safety risk. Since this action does not concern a human health risk, EPA's 2021 Policy on Children's Health also does not apply. Although the establishment of these SNURs do not address an existing children's environmental health concern because the chemical uses involved are not ongoing uses, SNURs require that persons notify EPA at least 90 days before commencing manufacture (defined by statute to include import) or processing of any of these chemical substances for an activity that is designated as a significant new use by this rulemaking. This notification allows EPA to assess the intended uses to identify potential risks and take appropriate actions before the activities commence.

This action is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

This action does not involve any technical standards subject to NTTAA section 12(d) (15 U.S.C. 272 note).

This action does not concern human health or environmental conditions and therefore cannot be evaluated with respect to the potential for disproportionate impacts on non-white and low-income populations in accordance with Executive Order 12898 (59 FR 7629, February 16, 1994) and Executive Order 14096 (88 FR 25251, April 26, 2023). Although this action does not concern human health or environmental conditions, the premanufacture notifications required by these SNURs allows EPA to assess the intended uses to identify potential disproportionate risks and take appropriate actions before the activities commence.

Therefore, for the reasons stated in the preamble, EPA proposes to amend 40 CFR chapter I as follows:

TSCA section 5(a)(2) (15 U.S.C. 2604(a)(2)) authorizes EPA to determine that a use of a chemical substance is a “significant new use.” EPA must make this determination by rule after considering all relevant factors, including the factors in TSCA section 5(a)(2) (see also the discussion in Unit II.).

EPA is proposing SNURs for chemical substances discussed in Unit III. These SNURs, if finalized as proposed, would require persons who intend to manufacture or process any of these chemical substances for an activity that is designated as a significant new use to notify EPA at least 90 days before commencing that activity.

This action applies to you if you manufacture, process, or use the chemical substances contained in this proposed rule. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Manufacturers or processors of one or more subject chemical substances (NAICS codes 325 and 324110), e.g., chemical manufacturing and petroleum refineries.

This action may also apply to certain entities through pre-existing import certification and export notification requirements under TSCA ( https://www.epa.gov/tsca-import-export-requirements ).

Chemical importers are subject to TSCA section 13 (15 U.S.C. 2612), the requirements promulgated at 19 CFR 12.118 through 12.127 (see also 19 CFR 127.28), and the EPA policy in support of import certification at 40 CFR part 707, subpart B. Chemical importers must certify that the shipment of the chemical substance complies with all applicable rules and orders under TSCA, including regulations issued under TSCA sections 5, 6, 7 and Title IV.

Pursuant to 40 CFR 721.20, any persons who export or intend to export a chemical substance that is the subject of this proposed rule on or after December 30, 2024 are subject to the export notification provisions of TSCA section 12(b) (15 U.S.C. 2611(b)) and must comply with the export notification requirements in 40 CFR part 707, subpart D.

EPA has evaluated the potential costs of establishing SNUN reporting requirements for potential manufacturers (including importers) and processors of the chemical substances subject to these proposed SNURs. This analysis, which is available in the docket, is briefly summarized here.

If a SNUN is submitted, costs are an estimated $45,000 per SNUN submission for large business submitters and $14,500 for small business submitters. These estimates include the cost to prepare and submit the SNUN (including registration for EPA's Central Data Exchange (CDX)), and the payment of a user fee. Businesses that submit a SNUN would be subject to either a $37,000 user fee required by 40 CFR 700.45(c)(2)(ii) and (d), or, if they are a small business as defined at 13 CFR 121.201, a reduced user fee of $6,480 (40 CFR 700.45(c)(1)(ii) and (d)) per fiscal year 2022. The costs of submission for SNUNs will not be incurred by any company unless a company decides to pursue a significant new use as defined in these SNURs. Additionally, these estimates reflect the costs and fees as they are known at the time of this rulemaking.

EPA has also evaluated the potential costs associated with the export notification requirements under TSCA section 12(b) and the implementing regulations at 40 CFR part 707, subpart D. For persons exporting a substance that is the subject of a SNUR, a one-time notice to EPA must be provided for the first export or intended export to a particular country. The total costs of export notification will vary by chemical, depending on the number of required notifications ( i.e., the number of countries to which the chemical is exported). While EPA is unable to make any estimate of the likely number of export notifications for the chemical substances covered by these SNURs, as stated in the accompanying economic analysis, the estimated cost of the export notification requirement on a per unit basis is approximately $106.

Do not submit CBI to EPA through email or https://www.regulations.gov. If you wish to include CBI in your comment, please follow the applicable instructions at https://www.epa.gov/dockets/commenting-epa-dockets#rules and clearly mark the information that you claim to be CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR parts 2 and 703.

When preparing and submitting your comments, see the commenting tips at https://www.epa.gov//epa-dockets.

This unit provides general information about SNURs. For additional information about EPA's new chemical program go to https://www.epa.gov/reviewing-new-chemicals-under-toxic-substances-control-act-tsca.

TSCA section 5(a)(2) states that EPA's determination that a use of a chemical substance is a significant new use must be made after consideration of all relevant factors, including:

• The projected volume of manufacturing and processing of a chemical substance.

• The extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance.

• The extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance.

• The reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance.

In determining what would constitute a significant new use for the chemical substances that are the subject of these SNURs, EPA considered relevant information about the toxicity of the chemical substances, and potential human exposures and environmental releases that may be associated with the substances, in the context of the four bulleted TSCA section 5(a)(2) factors listed in this unit and discussed in Unit III.

These proposed SNURs include PMN substances that are subject to Orders issued under TSCA section 5(e)(1)(A), as required by the determinations made under TSCA section 5(a)(3)(B). The proposed SNURs identify significant new uses consistent with TSCA section 5(f)(4).

Under TSCA, no person may manufacture a new chemical substance or manufacture or process a chemical substance for a significant new use until EPA makes a determination as described in TSCA section 5(a) and takes any required action. The issuance of a SNUR is not a risk determination itself, only a notification requirement for “significant new uses,” so that the Agency has the opportunity to review the SNUN for the significant new use and make a TSCA section 5(a)(3) risk determination.

During review of the PMNs that are subject to these proposed SNURs, EPA concluded that regulation was warranted under TSCA section 5(e), pending the development of information sufficient to make reasoned evaluations of the health or environmental effects of the chemical substances. The basis for such findings is outlined in the December 2022 proposal (87 FR 74072, December 2, 2022 (FRL-9972-01-OCSPP)). Based on these findings, TSCA section 5(e) Orders requiring the use of exposure controls were negotiated with the PMN submitters. As a general matter, EPA believes it is necessary to follow the TSCA Orders with a SNUR that identifies the absence of those protective measures as significant new uses to ensure that all manufacturers and processors—not just the original submitter—are held to the same standard.

EPA previously proposed SNURs for these seventeen chemical substances in the December 2022 proposal. Those SNURs would have required notice to EPA by any person prior to manufacturing or processing the chemical substances in a way that does not conform to the measures in the Order; additionally, EPA proposed to require notice for annual production volumes greater than 2,500 pounds and for uses other than the uses described in the PMNs, on the basis that notices of commencement (NOC) had not been received for these chemical substances and the substances were not on the TSCA Inventory.

A commenter on the December 2022 proposal stated that EPA should designate “any use” of a substance not on the TSCA Inventory as a significant new use, stating that the Agency has the authority to do so given there are currently no ongoing uses. The commenter noted that this would enable EPA to reassess risks from the substances under any conditions of use according to current weight-of-evidence on these substances, stating that the SNURs in the December 2022 proposal may not be sufficient to prevent unreasonable risk given the substances' persistent, bioaccumulative, and toxic nature, and noting that based on analogous substances there may be health risks even at limited production volumes that may present unreasonable risks to human health.

EPA agrees with the commenter and is issuing this supplemental proposal for the seventeen chemical substances for which NOCs have not been received and the substances are not on the TSCA Inventory; furthermore, EPA has not granted any exemption from full PMN review ( e.g., a low volume exemption) for these chemical substances to any manufacturer. Because these seventeen chemical substances are not on the TSCA Inventory (and no exemptions were granted for their manufacture), EPA proposes to find that there are no ongoing uses of these chemicals. Therefore, EPA is proposing SNURs that identify manufacture (which includes import) or processing these chemical substances for any use as a significant new use, to enable the Agency to evaluate and manage risks, where appropriate, from activities associated with use of these chemical substances before manufacture or processing were to begin.

This proposed rule advances one of the “key actions” in the Per- and Polyfluoroalkyl Substances (PFAS) Strategic Roadmap where EPA stated it plans to revisit past PFAS regulatory decisions and address those that are insufficiently protective by imposing additional notification requirements. In this way, the Agency can ensure it has the opportunity to review PFAS before they are used in new ways that might present concerns. To view the PFAS Strategic Roadmap and learn more about EPA actions to address PFAS, please visit https://www.epa.gov/pfas/epa-actions-address-pfas and https://www.epa.gov/system/files/documents/2021-10/pfas-roadmap_final-508.pdf.

EPA is proposing these SNURs because the Agency wants:

• To identify as significant new uses any manufacturing, processing, use, distribution in commerce, or disposal of these chemical substances for any use.

• To have an opportunity to review and evaluate data submitted in a SNUN before the submitter begins manufacturing or processing a listed chemical substance for the described significant new use.

• To be obligated to make a determination under TSCA section 5(a)(3) regarding the use described in the SNUN, under the conditions of use. The Agency will either determine under TSCA section 5(a)(3)(C) that the significant new use is not likely to present an unreasonable risk, including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant by the Administrator under the conditions of use, or make a determination under TSCA section 5(a)(3)(A) or (B) and take the required regulatory action associated with the determination, before manufacture or processing for the significant new use of the chemical substance can occur.

Issuance of a proposed SNUR for a chemical substance does not signify that the chemical substance is listed on the TSCA Chemical Substance Inventory (TSCA Inventory). Guidance on how to determine if a chemical substance is on the TSCA Inventory is available at https://www.epa.gov/ tsca-inventory.

General provisions for SNURs appear in 40 CFR part 721, subpart A. These provisions describe persons subject to SNURs, recordkeeping requirements, exemptions to reporting requirements, and applicability of the rule to uses occurring before the effective date of the rule. Pursuant to 40 CFR 721.1(c), persons subject to SNURs must comply with the same requirements and EPA regulatory procedures as submitters of PMNs under TSCA section 5(a)(1)(A). In particular, these requirements include the information submission requirements of TSCA sections 5(b) and 5(d)(1), the exemptions authorized by TSCA sections 5(h)(1), 5(h)(2), 5(h)(3), and 5(h)(5) and the regulations at 40 CFR part 720. In addition, provisions relating to user fees appear at 40 CFR part 700.

Once EPA receives a SNUN, EPA must either determine that the significant new use is not likely to present an unreasonable risk of injury under the conditions of use for the chemical substance or take such regulatory action as is associated with an alternative determination under TSCA section 5 before the manufacture (including import) or processing for the significant new use can commence. If EPA determines that the significant new use of the chemical substance is not likely to present an unreasonable risk, EPA is required under TSCA section 5(g) to make public, and submit for publication in the Federal Register , a statement of EPA's findings.

As discussed in Unit I.C.2., persons who export or intend to export a chemical substance identified in a proposed or final SNUR are subject to the export notification provisions of TSCA section 12(b), and persons who import a chemical substance identified in a final SNUR are subject to the TSCA section 13 import certification requirements. See also https://www.epa.gov/tsca-import-export-requirements .

EPA is proposing that the general reporting exemption described in 40 CFR 721.45(i) not apply to these SNURs. 40 CFR 721.45(i) provides that the notification requirements of 40 CFR 721.25 do not apply, unless otherwise specified in a specific SNUR, if: “The person is operating under the terms of a consent order issued under section 5(e) of the Act applicable to that person. If a provision of such section 5(e) order is inconsistent with a specific significant new use identified in subpart E of this part, abiding by the provision of the section 5(e) order exempts the person from submitting a significant new use notice for that specific significant new use.” EPA is proposing to make that exemption inapplicable to each SNUR in this document to ensure that persons subject to the Order would also be subject to the significant new use notification requirements in the proposed SNURs.

To establish a significant new use, EPA must determine that the use is not ongoing. The chemical substances subject to this proposed rule have undergone premanufacture review and received determinations under TSCA section 5(a)(3)(C). Further, the seventeen substances in this proposed rule are not on the TSCA Inventory (and EPA has not granted any exemption from full PMN review for these chemical substances to any manufacturer). Based on this, the Agency finds that the significant new uses identified in the proposed SNURs are not ongoing.

SNUNs must be submitted on EPA Form No. 7710-25, generated using e-PMN software, and submitted to the Agency in accordance with the procedures set forth in 40 CFR 720.40 and 721.25. E-PMN software is available electronically at https://www.epa.gov/reviewing-new-chemicals-under-toxic-substances-control-act-tsca.

EPA recognizes that TSCA section 5 does not require development of any particular new information ( e.g., generating test data) before submission of a SNUN. There is an exception: If a person is required to submit information for a chemical substance pursuant to a rule, order or consent agreement under TSCA section 4, then TSCA section 5(b)(1)(A) requires such information to be submitted to EPA at the time of submission of the SNUN.

In the absence of a rule, TSCA order, or consent agreement under TSCA section 4 covering the chemical substance, persons are required only to submit information in their possession or control and to describe any other information known to or reasonably ascertainable by them (see 40 CFR 720.50). However, upon review of PMNs and SNUNs, the Agency has the authority to require appropriate testing. To assist with EPA's analysis of the SNUN, submitters are encouraged, but not required, to provide the potentially useful information that was identified for the chemical substances in the December 2022 proposal.

EPA strongly encourages persons, before performing any testing, to consult with the Agency pertaining to protocol selection. Furthermore, pursuant to TSCA section 4(h), which pertains to reduction of testing in vertebrate animals, EPA encourages consultation with the Agency on the use of alternative test methods and strategies (also called New Approach Methodologies, or NAMs), if available, to generate the recommended test data. EPA encourages dialog with Agency representatives to help determine how best the submitter can meet both the data needs and the objective of TSCA section 4(h). For more information on alternative test methods and strategies to reduce vertebrate animal testing, visit https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/alternative-test-methods-and-strategies-reduce.

The potentially useful information described in the December 2022 proposal may not be the only means of providing information to evaluate the chemical substance associated with the significant new uses. However, submitting a SNUN without any test data may increase the likelihood that EPA will take action under TSCA sections 5(e) or 5(f). EPA recommends that potential SNUN submitters contact EPA early enough so that they will be able to conduct the appropriate tests.

SNUN submitters should be aware that EPA will be better able to evaluate SNUNs that provide detailed information on the following:

• Human exposure and environmental release that may result from the significant new use of the chemical substances.

EPA designates November 29, 2024 as the cutoff date for determining whether the new use is ongoing. This designation is explained in more detail in Unit II.D.

For each chemical substance identified in Unit III.C., EPA provides the following information:

• PMN number (the proposed CFR citation assigned in the regulatory text section of the proposed rule).

• Chemical name (generic name, if the specific name is claimed as CBI).

• Chemical Abstracts Service Registry Number (CASRN) (if assigned for non-confidential chemical identities).

• Basis for the action and potentially useful information.

The regulatory text section of this document specifies the activities proposed to be designated as significant new uses. The proposed SNURs identify as significant new uses manufacture (including import) or processing for any use.

The 17 substances subject to the proposed rules in this document are as follows:

PMN Numbers (proposed CFR citation): P-05-491 (40 CFR 721.11735), P-05-492 (40 CFR 721.11736), P-05-503 (40 CFR 721.11737), P-05-504 (40 CFR 721.11738), P-05-505 (40 CFR 721.11739), P-05-838 (40 CFR 721.11740), P-06-206 (40 CFR 721.11741), P-06-207 (40 CFR 721.11742), P-06-208 (40 CFR 721.11743), P-06-211 (40 CFR 721.11744), P-06-212 (40 CFR 721.11745), P-06-213 (40 CFR 721.11746), P-06-214 (40 CFR 721.11747), P-06-215 (40 CFR 721.11748), P-06-216 (40 CFR 721.11749), P-06-217 (40 CFR 721.11750), and P-06-224 (40 CFR 721.11751).

Chemical Names: Fluoroalkylacrylate copolymer (generic) (P-05-491, P-05-492, P-05-504, P-05-505, P-05-838, P-06-207, P-06-208, P-06-211, P-06-212, P-06-213, P-06-214, P-06-215, P-06-216, P-06-217, and P-06-224), Fluorochemical urethane; (generic) (P-05-503), and Fluoroalkyl acrylate (generic) (P-06-206).

CASRN or Accession Numbers: Not Available.

Basis for the action and potentially useful information: The December 2022 proposal provided the basis for and effective date of the TSCA Order for each of these substances, and also identified potentially useful information.

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

This action proposes to establish SNURs for new chemical substances that were the subject of PMNs. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866 (58 FR 51735, October 4, 1993), as amended by Executive Order 14094 (88 FR 21879, April 11, 2023).

According to the PRA (44 U.S.C. 3501 et seq. ), an agency may not conduct or sponsor, and a person is not required to respond to a collection of information that requires OMB approval under PRA, unless it has been approved by OMB and displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in title 40 of the CFR, after appearing in the Federal Register, are listed in 40 CFR part 9, and included on the related collection instrument or form, if applicable.

The information collection requirements related to SNURs have already been approved by OMB pursuant to PRA under OMB control number 2070-0038 (EPA ICR No. 1188). This action does not impose any burden requiring additional OMB approval. If an entity were to submit a SNUN to the Agency, the annual burden is estimated to average between 30 and 170 hours per submission. This burden estimate includes the time needed to review instructions, search existing data sources, gather and maintain the data needed, and complete, review, and submit the required SNUN.

EPA always welcomes your feedback on the burden estimates. Send any comments about the accuracy of the burden estimate, and any suggested methods for improving the collection instruments or instruction or minimizing respondent burden, including through the use of automated collection techniques.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA (5 U.S.C. 601 et seq. ). The requirement to submit a SNUN applies to any person (including small or large entities) who intends to engage in any activity described in the final rule as a “significant new use.” Because these uses are “new,” based on all information currently available to EPA, EPA has concluded that no small or large entities presently engage in such activities.

A SNUR requires that any person who intends to engage in such activity in the future must first notify EPA by submitting a SNUN. Although some small entities may decide to pursue a significant new use in the future, EPA cannot presently determine how many, if any, there may be. However, EPA's experience to date is that, in response to the promulgation of SNURs covering over 1,000 chemicals, the Agency receives only a small number of notices per year. For example, the number of SNUNs received was 16 in Federal fiscal year (FY) 2018, five in FY2019, seven in FY2020, 13 in FY2021, 11 in FY2022, and 15 in FY2023, and only a fraction of these submissions were from small businesses.

In addition, the Agency currently offers relief to qualifying small businesses by reducing the SNUN submission fee from $37,000 to 6,480. This lower fee reduces the total reporting and recordkeeping cost of submitting a SNUN to about $14,500 per SNUN submission for qualifying small firms. Therefore, the potential economic impacts of complying with these proposed SNURs are not expected to be significant or adversely impact a substantial number of small entities. In a SNUR that published in the Federal Register on June 2, 1997 (62 FR 29684) (FRL-5597-1), the Agency presented its general determination that SNURs are not expected to have a significant economic impact on a substantial number of small entities, which was provided to the Chief Counsel for Advocacy of the Small Business Administration.

This action does not contain an unfunded mandate of $100 million or more (in 1995 dollars) in any one year as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. Based on EPA's experience with proposing and finalizing SNURs, State, local, and Tribal governments have not been impacted by SNURs, and EPA does not have any reasons to believe that any State, local, or Tribal government will be impacted by these SNURs. In addition, the estimated costs of this action to the private sector do not exceed $183 million or more in any one year (the 1995 dollars are adjusted to 2023 dollars for inflation using the GDP implicit price deflator). The estimated costs for this action are discussed in Unit I.D.

This action will not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it is not expected to have a substantial direct effect on 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. Accordingly, the requirements of Executive Order 13132 do not apply to this action.

This action will not have Tribal implications as specified in Executive Order 13175 (65 FR 67249, November 9, 2000), because it is not expected to have substantial direct effects on Indian Tribes, significantly or uniquely affect the communities of Indian Tribal governments and does not involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of Executive Order 13175 do not apply to this action.

This action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it does not concern an environmental health or safety risk. Since this action does not concern a human health risk, EPA's 2021 Policy on Children's Health also does not apply. Although the establishment of these SNURs do not address an existing children's environmental health concern because the chemical uses involved are not ongoing uses, SNURs require that persons notify EPA at least 90 days before commencing manufacture (defined by statute to include import) or processing of any of these chemical substances for an activity that is designated as a significant new use by this rulemaking. This notification allows EPA to assess the intended uses to identify potential risks and take appropriate actions before the activities commence.

This action is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

This action does not involve any technical standards subject to NTTAA section 12(d) (15 U.S.C. 272 note).

EPA believes that this type of action does not concern human health or environmental conditions and therefore cannot be evaluated with respect to potentially disproportionate and adverse effects on communities with environmental justice concerns in accordance with Executive Order 12898 (59 FR 7629, February 16, 1994) and Executive Order 14096 (88 FR 25251, April 26, 2023). Although this action does not concern human health or environmental conditions, the premanufacture notifications required by these SNURs allows EPA to assess the intended uses to identify potential disproportionate risks and take appropriate actions before the activities commence.

Therefore, for the reasons stated in the preamble, EPA proposes to amend 40 CFR chapter I as follows:

This rule proposes to amend multiple FAR parts to further implement 41 U.S.C. 1908. Section 1908 requires an adjustment every five years (on October 1 of each year evenly divisible by five) of statutory acquisition-related thresholds for inflation, using the Consumer Price Index (CPI) for all urban consumers, except for the Construction Wage Rate Requirements statute (Davis-Bacon Act), Service Contract Labor Standards statute, performance and payment bonds, and trade agreements thresholds (see FAR 1.109). As a matter of policy, DoD, GSA, and NASA are also proposing to use the same methodology to adjust nonstatutory FAR acquisition-related thresholds on October 1, 2025.

This is the fifth review of FAR acquisition-related thresholds since the statute was passed on October 28, 2004 (section 807 of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005). The last review was conducted under FAR Case 2019-013 during fiscal year (FY) 2020. The final rule under that case was published in the Federal Register on October 2, 2020 (85 FR 62485), effective October 1, 2020.

This case builds on the review of FAR thresholds in FY 2005, FY 2010, FY 2015, and FY 2020, using the same interpretation of an acquisition-related threshold. 41 U.S.C. 1908 is applicable to “a dollar threshold that is specified in law as a factor in defining the scope of the applicability of a policy, procedure, requirement, or restriction provided in that law to the procurement of property or services by an executive agency, as the Federal Acquisition Regulatory Council (the Council) determines.”

There are other thresholds in the FAR that, while not specified in law, nevertheless meet all the other criteria. These thresholds may have their origin in Executive order or regulation. Therefore, the Council has determined that in this case “acquisition-related threshold” has a broader meaning, i.e., a threshold that is specified in law, Executive order, or regulation as a factor in defining the scope of the applicability of a policy, procedure, requirement, or restriction provided in that law, Executive order, or regulation to the procurement of property or services by an Executive agency. DoD, GSA, and NASA conclude that acquisition-related thresholds are generally tied to the value of a contract, subcontract, or modification.

This rule does not address thresholds that are not acquisition-related. Examples of thresholds that are not “acquisition-related,” as defined in this proposed rule, include thresholds relating to claims, penalties, withholding, payments, required levels of insurance, small business size standards, liquidated damages, and protests.

41 U.S.C. 1908 does not permit escalation of acquisition-related thresholds established by the Construction Wage Rate Requirements statute (Davis Bacon Act), the Service Contract Labor Standards statute, performance and payment bonds (formerly the Miller Act), or the United States Trade Representative pursuant to the authority of the Trade Agreements Act of 1979.

Also, the statute does not authorize the FAR to escalate thresholds originating in Executive order or the implementing agency (such as the Department of Labor or the Small Business Administration), unless the Executive order or agency regulations are first amended.

If an acquisition-related threshold is based on statute, the matrix at https://www.regulations.gov identifies the statute and the statutory threshold, including the original threshold and any FAR revisions.

With the exception of thresholds set by the Construction Wage Rate Requirements statute (Davis-Bacon Act), Service Contract Labor Standards statute, performance and payment bonds (formerly the Miller Act), and the United States Trade Representative pursuant to the authority of the Trade Agreements Act of 1979, 41 U.S.C. 1908 requires that the Councils adjust the acquisition-related thresholds for inflation using the CPI for all urban consumers. Acquisition-related thresholds in statutes that were in effect on October 1, 2000, are only subject to escalation from that date forward. For purposes of this proposed rule, the matrix includes calculation of escalation based on the estimated CPI value for March 2025 (currently projected at 323.193) divided by the CPI for the date of enactment of the statute or regulation (October 2000, for statutes enacted prior to October 1, 2000). The Councils will subsequently adjust as necessary before issuance of the final rule.

Once the escalation factor is applied to the acquisition-related threshold, then the threshold must be rounded as follows:

The calculations in this proposed rule are all based on the base year amount, because escalated amounts in the 2020 rule were subject to rounding. Therefore, using those amounts as the base would distort future calculations.

In 2020, some thresholds, although subject to inflation calculation, did not actually change, because the inflation in 2020 was insufficient to overcome the rounding requirements— i.e., the escalation factor when applied did not cause the escalated values to be high enough to round to the next higher value. However, in FY 2025 many thresholds that did not escalate in 2020 have increased through other statutory actions or will now escalate because of five additional years of inflation. Likewise, some thresholds that were escalated in 2020 will not escalate in 2025.

The thresholds for defining a major system differ for the civilian agencies and DoD. The FAR will continue to escalate the major systems threshold for the civilian agencies; however, DoD has determined that for DoD the major systems thresholds in the FAR must be consistent with the major systems thresholds in DoD Instruction 5000.85, Major Capability Acquisition, established in accordance with the authority in 10 U.S.C. 3041. For the purposes of this rule, the thresholds are unchanged.

This proposed rule has been coordinated with the Department of Labor and the Small Business Administration in areas of the regulation for which they are the lead agency.

No statutory authorization is required to escalate thresholds that are policy-based within the FAR. For consistency, escalation of the FAR policy-based acquisition-related thresholds is recommended using the same formula applied to the statutory thresholds, unless there is a valid reason for not doing so.

This rule includes the following proposed changes to heavily-used thresholds. All these inflation increases assume that the current rate of inflation continues.

• The micro-purchase threshold at FAR 2.101 will increase from $10,000 to $15,000. Paragraphs (3)(i) and (ii) of the definition, for acquisitions to support contingency operations or to facilitate defense against certain attacks, are proposed to increase from $20,000 to $25,000 and from $35,000 to $40,000, respectively. Paragraph (4)(i), for acquisitions from institutions of higher education, nonprofit entities, or nonprofit and independent research activities, is proposed to increase from $10,000 to $15,000.

• The simplified acquisition threshold will increase from $250,000 to $350,000. Paragraphs (1)(i) and (ii) of the definition, for acquisitions to support contingency operations or to facilitate defense against certain attacks, are proposed to increase from $800,000 to $1 million and from $1.5 million to $2 million, respectively. Paragraph (2) of the definition, for acquisitions to support humanitarian or peacekeeping operations, is proposed to increase from $500,000 to $650,000.

• The threshold for reporting first-tier subcontract information including executive compensation (FAR subpart 4.14) will increase from $30,000 to $40,000.

• The preaward and postaward notices (FAR part 5) remain at $25,000 because of trade agreements.

• The threshold requirement for limiting competition (FAR part 6) to eligible 8(a) awards over $25 million is increased to $30 million.

• Approval thresholds of justifications for other than full and open competition (FAR 6.304) will increase from $750,000 to $950,000. Paragraphs (a)(3) and (4) will increase from $15 million to $20 million and from $75 million to $95 million, respectively. The $100 million threshold applicable to DoD, NASA, and the Coast Guard will increase to $150 million.

• The ceiling for using simplified procedures for certain commercial products and commercial services (FAR 13.500) will increase from $7.5 million to $9.5 million. For acquisitions described at FAR 13.500(c), the ceiling will increase from $15 million to $20 million.

• The cost or pricing data threshold (FAR 15.403-4) will increase from $2 million to $2.5 million.

• The threshold for justifications of single-award indefinite-delivery contracts (FAR 16.504(c)(1)(ii)(D)( 1 )) will increase from $100 million to $150 million.

• The prime contractor subcontracting plan (FAR 19.702) floor will increase from $750,000 to $950,000. The construction threshold will increase from $1.5 million to $2 million.

This proposed rule is based on a projected CPI of 323.193 for March 2025. If the actual CPI for March 2025 is higher than 323.193, then additional statutory thresholds may be subject to escalation in the final rule, even though not included in the proposed rule.

This proposed rule does not create any new provisions or clauses, nor does it change the applicability of any existing provisions or clauses included in solicitations and contracts valued at or below the SAT, or for commercial products, including COTS items, or for commercial services.

The proposed rule is not expected to have a significant impact on the public or the Government because the rule is intended to maintain the status quo by adjusting acquisition-related thresholds for inflation. The escalation of statutory acquisition-related thresholds is mandated by 41 U.S.C. 1908, including how to calculate the escalation. The impact on heavily-used FAR thresholds is described in Section II.E. of this preamble.

The most impactful threshold escalations will likely be associated with the proposed increases to the micro-purchase threshold (MPT) and SAT. According to data from the Federal Procurement Data System (FPDS), the average number of Federal awards valued at or below the current MPT ($10,000) during FY 2022 through FY 2024 was approximately 562,324. Those actions were awarded to approximately 18,440 unique entities. For the same period, FPDS data indicates that between the current MPT and the proposed threshold value of $15,000, another 49,321 awards were made to approximately 13,788 unique entities. While it is unclear how much duplication there is between the unique entities for each data point, the data illustrates an approximate 9 percent increase in the number of actions that would be considered under the MPT.

For actions above the current MPT but valued at or below the current SAT ($250,000), FPDS data for the same period indicates that an average of 235,020 contract actions were awarded to approximately 48,686 unique entities. According to FPDS data between the current SAT and the proposed threshold value of $350,000, another 5,150 (2 percent) contract actions could be awarded to approximately 3,580 entities using the flexibilities afforded to contracts at or below the SAT.

While not significant in number or percentage, the data appears to illustrate slight decreases in the number of contract actions that were valued at or under the MPT for each of the reported fiscal years. However, the number of contract actions having a value between the MPT and the SAT have increased slightly. DoD, GSA, and NASA assume that these changes, however insignificant, illustrate that the value of Federal procurements have increased, resulting in more regulatory burden on offerors and contractors.

DoD, GSA, and NASA expect this proposed rule to provide the adjustments necessary to mitigate the impact of inflation on both the public and the Government as intended under 41 U.S.C. 1908. The rule does not change direction to contracting officers, nor does it change the applicability of any requirements for offerors and contractors.

Executive Orders (E.O.s) 12866 (as amended by E.O. 14094) and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993.

DoD, GSA, and NASA do not expect this rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601-612, because the rule maintains the status quo by adjusting thresholds for actual inflationary increases in the CPI. However, an Initial Regulatory Flexibility Analysis has been performed and is summarized as follows:

The Regulatory Secretariat Division has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat Division. DoD, GSA, and NASA invite comments from small business concerns and other interested parties on the expected impact of this rule on small entities.

DoD, GSA, and NASA will also consider comments from small entities concerning the existing regulations in subparts affected by the rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (FAR Case 2024-001), in correspondence.

The Paperwork Reduction Act does apply. The proposed changes to the FAR do not impose new information collection requirements that require the approval of the Office of Management and Budget (OMB) under 44 U.S.C. 3501, et seq. By adjusting the thresholds for inflation, the status quo for the current information collection requirements is maintained under the following OMB clearance numbers: 9000-0007, 1250-0004, and 1293-0005.

Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 1, 2, 3, 4, 5, 6, 8, 9, 10, 12, 13, 15, 16, 17, 19, 22, 23, 25, 26, 30, 32, 36, 42, 50, and 52 as set forth below:

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Why we need to publish a rule. Under the Endangered Species Act (Act), any species that is determined to be threatened or endangered requires critical habitat to be designated to the maximum extent prudent and determinable. Designations and revisions of critical habitat can be completed only by issuing a rule through the Administrative Procedure Act rulemaking process (5 U.S.C. 551 et seq. ).

The contiguous U.S. distinct population segment (DPS) of the Canada lynx DPS was listed as a threatened species in 2000. We designated critical habitat for the Canada lynx DPS in 2006 and revised the designation in 2009 and 2014. In 2022, the Service committed in a settlement agreement to submit to the Federal Register a proposed rule on the revised designation of critical habitat for the Canada lynx DPS by November 21, 2024.

What this document does. This document proposes to revise the existing designation of critical habitat for the threatened contiguous U.S. DPS of the Canada lynx. Because the Western United States was the subject of a 2016 court order that found fault with our 2014 final critical habitat rule for not designating critical habitat in Colorado and in five National Forests in Idaho and Montana, and because we have new scientific information on lynx habitat in the Western United States, we are proposing to revise Canada lynx critical habitat in the Western United States only. We are not proposing any revisions to critical habitat in Maine and Minnesota.

The basis for our action. Section 3(5)(A) of the Act defines critical habitat as (i) the specific areas within the geographical area occupied by the species, at the time it is listed, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protections; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination by the Secretary of the Interior (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) Specific information on:

(a) The amount and distribution of Canada lynx habitat in the Western United States;

(b) Any additional areas occurring within the range of the species in the Western United States that should be included in the designation because they (i) were 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) were unoccupied at the time of listing and are essential for the conservation of the species; and

(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.

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

(3) 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.

(4) 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 and any additional information regarding probable economic impacts that we should consider.

(5) Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, 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. In particular, we are considering excluding all Tribal lands (in Montana and New Mexico) as well as lands in (a) Montana, managed in accordance with the Montana Department of Natural Resources and Conservation (DNRC) Forested State Trust Lands Habitat Conservation Plan (Montana DNRC and U.S. Fish and Wildlife Service 2010, entire), and (b) Washington, managed in accordance with the Washington Department of Natural Resources (DNR) Lynx Habitat Management Plan for DNR-managed Lands (Washington DNR 2006, entire). If you think we should exclude any additional areas, please provide information supporting a benefit of exclusion.

(6) 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), 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).

The Service listed the Canada lynx DPS as a threatened species under the Act in 2000 (65 FR 16052, March 24, 2000). The Service first designated Canada lynx critical habitat in 2006 (71 FR 66008, November 9, 2006), revised the designation in 2009 (74 FR 8616, February 25, 2009), and revised critical habitat again in 2014 (79 FR 54782, September 12, 2014). The 2014 designation was challenged and in 2016 the District Court for the District of Montana held that the Service erred by excluding Colorado and five National Forests in Montana and Idaho from the critical habitat designation, WildEarth Guardians v. U.S. Department of the Interior, 205 F. Supp.3d 1176 (D. Mont. 2016). The court remanded the critical habitat designation to the Service to reconsider. In 2017, we completed the species status assessment (SSA) report to summarize the best available scientific information on the status and likely future viability of the Canada lynx DPS (Service 2017a, entire). The SSA provided the scientific basis for a 5-year review completed on November 13, 2017, in which we recommended removing the Canada lynx DPS from the Federal List of Endangered and Threatened Wildlife (Service 2017b, entire). Given this recommendation, on December 20, 2017, we issued a memorandum on our section 4(f)(1) determination regarding recovery planning for the Canada lynx that found a recovery plan will not promote the conservation of the species (Service 2017c, entire).

In 2020, the Service was challenged for its failure to revise Canada lynx critical habitat in accordance with the 2016 court order. The Service reached a settlement agreement for the date it would comply with the 2016 court order. On April 25, 2022, the court ordered the Service to submit a proposed revised critical habitat rule for the Canada lynx DPS to the Federal Register by November 21, 2024, and a final critical habitat rule within the statutory timeframe in accordance with the settlement agreement.

On December 1, 2023, the Service completed and released an addendum to the SSA report (Service 2023a, entire), to inform recovery planning and critical habitat revision. We published a notice of availability of the draft recovery plan and made it available for public comment on December 1, 2023.

For more information on previous Federal actions concerning the Canada lynx DPS, refer to the final listing rule published in the Federal Register on March 24, 2000 (65 FR 16052); the clarification of findings published in the Federal Register on July 3, 2003 (68 FR 40076); the Recovery Outline for the Contiguous United States DPS of Canada Lynx (recovery outline; Service 2005, entire); the final rule designating critical habitat for Canada lynx published in the Federal Register on November 9, 2006 (71 FR 66008); the final rule designating revised critical habitat published in the Federal Register on February 25, 2009 (74 FR 8616); the 12-month finding on a petition to change the final listing of the DPS of the Canada lynx to include New Mexico published in the Federal Register on December 17, 2009 (74 FR 66937); the proposed rule to revise the designation of critical habitat and the boundary for the Canada lynx DPS published in the Federal Register on September 26, 2013 (78 FR 59430); and the final rule designating revised critical habitat for Canada lynx published in the Federal Register on September 12, 2014 (79 FR 54782). These documents and others addressing the status and conservation of the Canada lynx in the contiguous United States may be viewed and downloaded from the Service's website: https://ecos.fws.gov/ecp/species/A073?.

On December 1, 2023, a team of Service biologists, in consultation with recognized lynx and climate experts, completed an addendum to the 2017 SSA for the Canada lynx DPS. The SSA report and addendum represent a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species.

In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review in listing and recovery actions under the Act, we solicited independent scientific review of the information contained in the Canada lynx SSA report addendum. We sent the SSA report addendum to five independent peer reviewers and received five 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 addendum, which is the foundation for this proposed rule.

As discussed in Peer Review above, we received comments from five peer reviewers on the draft SSA report addendum. We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding the contents of the SSA report addendum. The peer reviewers generally concurred with our methods and conclusions. The peer reviewers provided additional information, terminology clarifications, suggestions to explain uncertainties, clarifications to the explanation of our resiliency model, and other editorial suggestions. Peer reviewer comments and suggestions were incorporated as appropriate in the final version of the SSA report addendum (Service 2023a, entire).

Critical habitat is defined in section 3(5)(A) 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(b)(2) 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 compiled in 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 the 4(d) rule. 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 scientific data available 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.

A comprehensive review of the species description, biology, taxonomy, genetics, life history, ecology, distribution, species needs, habitat, and ecological requirements of the Canada lynx DPS is presented in the SSA report (Service 2017a, entire) and SSA report addendum (Service 2023a, entire). Here we present a summary of information relevant to the physical and biological features essential to the conservation of the species.

The Canada lynx (hereafter referred to as lynx) is a North American wild cat that is most strongly associated with northern-latitude boreal forests (taiga) of Canada and Alaska (McCord and Cardoza 1982, p. 729; Agee 2000, pp. 39-41; Aubry et al. 2000, pp. 373-374; Mowat et al. 2000, p. 272). The southern peripheries of the boreal forest and lynx range extend into the northern contiguous United States (Service 2017a, pp. 11-12). The Canada lynx is a medium-sized cat with long legs and large, well-furred paws, which make it well-adapted for traversing and hunting in deep, powdery snow. Its low foot-loading (weight per surface area of foot) is thought to provide a competitive advantage (Buskirk et al. 2000a, p. 90; Buskirk et al. 2000b, p. 400; Interagency Lynx Biology Team (ILBT) 2013, pp. 26, 36, 81) over other terrestrial predators of snowshoe hares, the lynx's primary prey.

Lynx rely heavily on snowshoe hare to support survival, reproduction, recruitment, and, therefore, population persistence (Ruggiero et al. 2000a, p. 110; Mowat et al. 2000, p. 270; Steury and Murray 2004, pp. 128, 136-138; Service 2005, p. 2; ILBT 2013, p. 30-34; 79 FR 54782, September 12, 2014). All aspects of lynx life history are inextricably tied to the snowshoe hare, which comprises most of the lynx diet throughout its range (Nellis et al. 1972, pp. 323-325; Brand et al. 1976, pp. 422- 425; Koehler and Aubry 1994, pp. 75, 85; Apps 2000, pp. 358-359, 363; Aubry et al. 2000, pp. 375-378; Mowat et al. 2000, pp. 267-268), including the DPS (Koehler 1990, p. 848; von Kienast 2003, pp. 37-38; Squires et al. 2004, p. 15, table 8; Moen 2009, p. 7; Vashon et al. 2012, p. 11; Olson 2015, pp. 60-69; Ivan and Shenk 2016, p. 1053). Being highly specialized hare predators, lynx require landscapes that consistently support relatively high hare densities (McCord and Cardoza 1982, p. 744; Quinn and Parker 1987, pp. 684-685; Aubry et al. 2000, pp. 375-378).

The best available science, including recent research in the DPS' range, suggests that landscape-level hare densities consistently ≥ 0.5 hares/hectare (ha) (0.2 hares/acre (ac)) and favorable snow conditions (deep and persistent unconsolidated (“fluffy”) snow) for about 4 months per year are needed to support lynx occupancy, reproduction, and recruitment (Hoving et al. 2005, p. 749; Gonzalez et al. 2007, p. 7; Squires and Ruggiero 2007, pp. 313-314; Moen et al. 2012, pp. 352-354; Simons-Legaard et al. 2013, pp. 567, 574-575). At the southern periphery of lynx distribution, some places, including within the range of the DPS, seem to be at minimum thresholds to meet these requirements or do so inconsistently.

Lynx and snowshoe hares are strongly associated with moist boreal forests, where winters are long, cold, and snowy (Bittner and Rongstad 1982, p. 154; McCord and Cardoza 1982, p. 743; Quinn and Parker 1987, pp. 684-685; Agee 2000, pp. 39-47; Aubry et al. 2000, pp. 373-382; Hodges 2000a, pp. 183-191; Hodges 2000b, pp. 136-140; McKelvey et al. 2000a, pp. 211-232). The predominant vegetation of boreal forest is conifer trees, primarily species of spruce ( Picea spp.) and fir ( Abies spp; Elliot-Fisk 1988, pp. 34-35, 37-42). Snowshoe hares feed on conifers, deciduous trees, and shrubs (Hodges 2000a, pp. 181-183) and are most abundant in forests with dense understories that provide forage, cover to escape from predators, and protection during extreme weather (Wolfe et al. 1982, pp. 665-669; Litvaitis et al. 1985, pp. 869-872; Hodges 2000a, pp. 183-195; Hodges 2000b, pp. 136-140). Lynx population dynamics, survival, and reproduction are closely tied to snowshoe hare availability, making snowshoe hare habitat the primary component of lynx habitat.

Lynx distribution and population persistence are also influenced by snow conditions (Peers et al. 2012, pp. 4-9). The species is generally restricted to areas that receive deep and persistent unconsolidated (“fluffy”) snow, which is thought to allow lynx, with their proportionately longer limbs and very large feet, to outcompete other terrestrial hare predators that are less efficient in such conditions (McCord and Cardoza 1982, pp. 748-749; Quinn and Parker 1987, p. 684; Buskirk et al. 2000a, pp. 89-94; Buskirk et al. 2000b, pp. 400-401; Ruggiero et al. 2000b, pp. 445-449; Hoving 2001, p. 75; Hoving et al. 2005, pp. 744-749; Carroll 2007, entire; Gonzalez et al. 2007, entire; ILBT 2013, pp. 25-26; 79 FR 54782, September 12, 2014). The lynx's physical adaptations are thought to provide the lynx a seasonal advantage over potential terrestrial competitors and predators, which generally have higher foot-loading, causing them to sink into the snow more than the lynx (McCord and Cardoza 1982, p. 748; Murray and Boutin 1991, entire; Buskirk et al. 2000a, pp. 86-95; Ruediger et al. 2000, pp. 1-11; Ruggiero et al. 2000b, pp. 445, 450).

Buskirk et al. (2000a, entire) described potential exploitation (for food) and interference (avoidance) competition between lynx and other terrestrial and avian predators of hares, several of which have also been documented to prey on lynx. Coyotes ( Canis latrans ) were thought most likely to exert local or regionally important exploitation competition impacts to lynx (Buskirk et al. 2000a, p. 89). However, subsequent research showed little evidence of meaningful competition for hares between lynx and coyotes in winter (Kolbe et al. 2007, p. 1416; Dowd and Gese 2012, entire; Guillaumet et al. 2015, pp. 141-144), and evidence of competition with, and displacement of lynx by, bobcats ( Lynx rufus ) (Robinson 2006, pp. 120-129; Peers et al. 2012, pp. 4-9; Peers et al. 2013, entire; Sirén et al. 2021, p. 1768; Sirén et al. 2022, pp. 761-762). Coyotes, bobcats, and cougars ( Puma concolor; also mountain lion) are capable of imparting interference competition ( i.e., aggressive encounters) effects on lynx (Buskirk et al. 2000a, p. 89; Scully et al. 2018, pp. 765-766; King et al. 2020, p. 338). Interference would most likely be during summer but could also occur during winter in areas lacking deep, unconsolidated snow (ILBT 2013, p. 36).

Individual lynx require large landscapes with hare densities that maximize their chances of (1) surviving from birth to independence, (2) establishing and maintaining a home range, (3) breeding successfully, and (4) contributing genes to future generations (Breitenmoser et al. 1993, p. 552). These landscapes also must provide conditions that allow lynx to compete sufficiently for hares and minimize the likelihood of predation and other sources of lynx mortality.

Lynx populations need large (thousands of square kilometers) boreal forest landscapes with hare densities capable of supporting (1) multiple lynx home ranges, (2) reproduction and recruitment most years, and (3) at least some survival even during years when hare numbers are low. Lynx populations estimated at fewer than 25 individuals or occupying habitat areas too small (<483 mi 2 (1,250 km 2 )) to support at least 25 individual lynx are considered “not resilient/functionally extirpated” because populations that small are unlikely to persist over time (Service 2023a, p. 50-51). Large boreal forest landscapes also must have snow conditions (consistency, depth, and duration) that allow lynx to outcompete other terrestrial hare predators. To persist, lynx populations must exhibit recruitment and immigration rates that equal or exceed mortality and emigration rates on average over the long term. Immigration may be particularly important to the persistence and stability of lynx populations at the southern periphery of the range, including those within the DPS, where hare densities are generally low and hare populations are either non-cyclic or weakly-cyclic compared to northern populations. Low hare densities reduce the likelihood that lynx recruitment will consistently equal or exceed mortality. Non-cyclic or weakly-cyclic hare populations are unlikely to allow the rapid lynx population recovery observed in northern lynx populations outside of the DPS when hare numbers increase dramatically after cyclic population crashes. Conversely, more stable hare populations, even at lower landscape-level densities, likely provide stability ( i.e., prevent periodic steep declines) among lynx populations on the periphery of the range in the DPS and in southern Canada. Although immigration rates for DPS populations are unknown, as is the rate and periodicity of immigration needed to provide demographic stability among them, connectivity with and immigration from lynx populations in Canada are believed to be important to the persistence of lynx populations in the DPS (McKelvey et al. 2000a, pp. 232-242; McKelvey et al. 2000b, pp. 32-34; Schwartz et al. 2002, entire; Service 2005, p. 2; ILBT 2013, pp. 34, 42, 47, 54, 60, 65; Squires et al. 2013, p. 187; 79 FR 54782, September 12, 2014).

We derive the specific physical or biological features essential to the conservation of Canada lynx from studies of the species' habitat, ecology, and life history as described below. Additional information can be found in the 2014 final critical habitat rule (79 FR 54782, September 12, 2014), the 2017 SSA report (Service 2017a, entire), and the SSA report addendum (Service 2023a, entire); available on https://www.regulations.gov under Docket No. FWS-R6-ES-2024-0142.

We have determined that the following physical or biological features are essential to the conservation of the Canada lynx DPS:

(1) Snowshoe hare densities adequate to support lynx residency and reproduction over time, distributed across large landscapes.

(2) A mosaic of boreal/subalpine forest at variable forest structural stages, the majority of which provide year-round dense horizontal cover at ground or snow level.

(3) Winter conditions that provide and maintain deep fluffy snow for extended periods of time.

(4) Suitable habitat large enough (483 mi 2 (≥1,250 km 2 )) to support breeding populations.

(5) Permeable landscapes conducive to within-unit lynx daily movements and dispersal.

We note here that the 2014 critical habitat rule included a discussion of primary constituent elements (PCEs) essential to the conservation of the species (79 FR 54782 at 54811, September 12, 2014). The Service no longer uses PCEs to define critical habitat; rather, we now evaluate and describe the physical or biological features that are essential to the conservation of the species in accordance with the definitions in the Act and our implementing regulations at 50 CFR 424.12(b). We have identified the physical or biological features in this revised proposed critical habitat rule for the Canada lynx DPS in the Western United States. The analysis provided in the 2014 critical habitat rule in support of critical habitat Units 1 (Maine) and 2 (Minnesota), including the description of PCEs, still applies to those units that are not subject to this revision. Even though the eastern critical habitat units are based on PCEs, those PCEs are biologically very similar to the physical and biological features used in this proposed rule.

When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features which are essential to the conservation of the species and which may require special management considerations or protection. The features essential to the conservation of this species may require special management considerations or protection to reduce the following threats: climate change; vegetation management; wildland fire management; and habitat loss/fragmentation through development, roads, and mining (ILBT 2013, pp. 68-78; Service 2017a, pp. 51-105). A detailed discussion of activities influencing the Canada lynx DPS and its habitat can be found in the SSA report (Service 2017a, pp. 51-105) and SSA report addendum (Service 2023a, pp. 31-46).

Since the DPS was listed in 2000, nearly all Federal forest plans and resource management plans throughout the DPS range have been revised in coordination with the Service and the lynx research community to include science-based measures and management practices consistent with lynx conservation, thereby greatly reducing the potential for population-scale habitat deterioration on Federal lands. These efforts have contributed significantly to addressing the threat for which the DPS was listed—the inadequacy, at that time, of regulatory mechanisms in U.S. Forest Service (USFS) and Bureau of Land Management (BLM) land and resource management plans. Additionally, Federal partners continue to incorporate the best available science into lynx habitat management practices on Federal lands. However, in the future, climate change-related impacts have the potential to reduce lynx and snowshoe hare habitat within the DPS. Special management considerations or protection that may be required within critical habitat areas to address these threats include (but are not limited to) the following: maintaining high-quality lynx habitat and potential climate refugia; maintaining boreal forest vegetation communities that support high densities of snowshoe hares and resident lynx breeding populations; supporting connectivity between DPS populations; implementation of forest management practices that prevent or reduce risk of catastrophic wildfire; reducing indirect impacts to habitat from activities adjacent to critical habitat units; and minimizing habitat disturbance, fragmentation, and destruction through use of best management practices for vegetation management activities.

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. The occupied areas identified encompass the varying habitat types and distribution of the species and provide sufficient habitat to allow for maintaining the populations. We are not currently proposing to designate any areas outside the geographical area occupied by the species at the time of listing because we have not identified any unoccupied areas that meet the definition of critical habitat. Designating areas outside the geographical area occupied by the species at the time of listing would not improve the likelihood of recovery (the point at which the protections of the Act are no longer necessary and delisting the DPS would be appropriate). We do not find that the DPS can only be conserved and recovered if we were to designate areas not occupied at the time of listing. Because these areas are not essential for the conservation and recovery of the DPS, designating them would not comply with the Act.

We developed a conservation strategy for the Canada lynx DPS to determine and select appropriate areas occupied at the time of listing that contain the physical or biological features essential to the conservation of the species. The goal of our conservation strategy for lynx is to recover the DPS to the point where the protections of the Act are no longer necessary. The role of critical habitat in achieving this conservation goal is to identify the specific areas within the range of the Canada lynx DPS that provide the essential physical and biological features without which the species' range-wide resiliency, redundancy, and representation would be insufficient to achieve recovery. This, in turn, requires an understanding of the fundamental parameters of Canada lynx biology and ecology based on well-accepted conservation-biology and ecological principles for conserving species and their habitats, such as those described in the 2017 SSA report (Service 2017a, entire), the 2023 SSA report addendum (Service 2023a, entire), and the 2023 draft recovery plan for the Canada lynx (Service 2023b, entire).

The conservation strategy is the outline for the long-term viability of the Canada lynx DPS. In developing our conservation strategy, we focused on maintaining sufficient representation and redundancy within the DPS by maintaining or improving the resiliency of lynx populations and conserving their habitats. The conservation strategy includes the following:

(1) Maintenance or improvement of the current resiliency of the five breeding lynx populations (Maine, Minnesota, North Cascades, Northern Rocky Mountains, Southern Rocky Mountains) to preserve the redundancy and representation of the DPS.

(2) Identification and conservation of high-quality lynx habitat and potential climate refugia within the previously mentioned five areas and the Greater Yellowstone Area (GYA).

(3) Continued implementation and refinement of regulatory mechanisms and other conservation measures that incorporate the best available science to ensure the conservation of lynx habitats and populations.

(4) Populations distributed across the three large representative units in the DPS range (Northeast, Midwest, and West), and habitat that:

(a) Supports high or moderate-resiliency, resident lynx breeding populations.

(b) Supports connectivity between DPS populations and the core of the species' range in Canada.

(c) Provides the climatic conditions that support resident populations.

(d) Provides the boreal forest vegetation communities that support high densities of snowshoe hares and resident lynx breeding populations.

(e) Is potentially capable of providing climate refugia.

In previous critical habitat designations, we identified lynx habitat using expert judgement of vegetation and habitat types and elevation thresholds. For the Western United States, we now have new, state-of-the-art models of lynx habitat (Olson et al. 2021, entire; Squires et al., in review) based on the best empirical data of lynx locations across the Western United States. The models accurately map environmental covariates (abiotic and biotic features) found at lynx locations, as compared to a random sample of background locations, within and outside of known home ranges. These models were built using data from thousands of verified fine-scale global positioning system (GPS) locations of radio-marked resident lynx in Montana, Washington, Wyoming, and Colorado. Additionally the models were tested and verified using location data withheld from building the models and incidental lynx occurrence data that included locations within home ranges and locations outside of home ranges. The models cover the western extent of the Canada lynx DPS range and indicate the relative likelihood of lynx presence in Washington, Idaho, western Montana, northwestern and south-central Wyoming, northeastern Utah, western Colorado, and northern New Mexico.

These models and the use of them to identify high-quality lynx habitat were documented in the 2022 interagency Western Lynx Biology Team (WLBT) report (WLBT 2022, entire). The WLBT included species experts from the Service, USFS, and BLM, as well as scientists from the U.S. Department of Agriculture Rocky Mountain Research Station who led the development of the new habitat models. The WLBT framework also underwent formal peer review. The interagency team used a science-based approach to identify key habitat areas from the models and developed a tiered approach to model outputs by evaluating the extent and proportion of modeled high-quality habitat.

The WLBT used the models to identify areas of high conservation value for lynx where high-quality habitat is abundant, and further assigned those areas into three tiers. Tier 1 polygons provide large and well-connected areas with high proportions of high-quality habitat, and support long-term lynx occupancy and reproduction. Tier 2 polygons contain lower proportions of high-quality habitat, and they provide habitat for expansion or redundant habitat areas. In tier 2, the objective is to provide habitat to support periodic to regular occupancy, which may include reproductively successful individuals at times. Tier 3 areas are generally smaller islands of habitat that may function as “stepping stones” for dispersing lynx; these areas may be important to maintain connectivity and facilitate dispersal across the landscape and among tiers.

The WLBT mapping effort and underlying species distribution models identify habitat with the climatic and vegetation characteristics necessary to support lynx residency and reproduction. This includes boreal and subalpine forested habitats with a mosaic of variable forest successional and structural stages, dense horizontal cover, persistent snow, and moderate to high snowshoe hare densities. To inform our delineation of revised critical habitat in the Western United States, the Service used the tier 1 habitat described by the WLBT. When designating critical habitat, we are not required to designate all areas where a species occurs. We chose to focus on tier 1 polygons because these are the areas that have at least 50 percent of the polygon in the highest quality habitat. Tier 1 habitat is the most valuable to long-term lynx occupancy and reproduction and sufficient to provide for the conservation of the Canada lynx DPS. We did not use tier 2 or 3 polygons, as those areas have lower proportions of high-quality lynx habitat, such that they are not likely to support long-term occupancy and reproduction. We identified tier 1 polygons that exceeded or were in close proximity to other polygons that exceeded 1,250 contiguous km 2 (483 mi 2 ) of high-quality habitat as the areas on the landscape that contain the physical and biological features essential to the conservation of the Canada lynx DPS.

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 and methodology. We mapped all WLBT tier 1 polygons in the Cascades, Northern Rocky Mountains, and Southern Rocky Mountains. These polygons were then reviewed by Service biologists, using the best available information, to ensure that all polygons have the physical and biological features essential to Canada lynx. These features include (1) snowshoe hare densities adequate to support lynx residency and reproduction over time, distributed across large landscapes; (2) a mosaic of boreal/subalpine forest at variable forest structural stages, the majority of which provide year-round dense horizontal cover at ground or snow level; (3) winter conditions that provide and maintain deep fluffy snow for extended periods of time; (4) suitable habitat large enough (483 mi 2 (≥1,250 km 2 )) to support breeding populations; (5) permeable landscapes conducive to within-unit lynx daily movements and dispersal.

We then removed any isolated polygons not occupied at the time of listing and smaller than 483 mi 2 (≥1,250 km 2 ), which is the minimum area thought necessary to support a resilient lynx population as identified in the SSA report addendum (Service 2023a, pp. 50-51).

When determining proposed critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack physical or biological features necessary for lynx. 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 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.

The proposed critical habitat designation is defined by the map or maps, 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.

Critical habitat was last designated for the Canada lynx DPS in 2014 and included five units in the contiguous United States (79 FR 54782, September 12, 2014). We are proposing to revise critical habitat for the Canada lynx in the Western United States. Existing critical habitat units 1 (Maine) and 2 (Minnesota) are not included in this proposed revision to lynx critical habitat and remain in place as described in the 2014 critical habitat final rule. The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for lynx in the Western United States. The four areas we propose as critical habitat are: (1) Unit 3: Northern Rockies; (2) Unit 4: North Cascades; (3) Unit 5: Greater Yellowstone Area (GYA); and (4) Unit 6: Southern Rockies. Table 1, below, shows the proposed critical habitat units and the approximate area of each unit. All units were occupied at the time of listing in 2000. Table 1 lists the proposed critical habitat units and their approximate sizes broken down by major land ownership.

We present brief descriptions of all units, and reasons why they meet the definition of critical habitat for the Canada lynx DPS below.

Unit 3 consists of 7,959 mi 2 (20,613 km 2 ) located in northwestern Montana in portions of Flathead, Glacier, Granite, Lake, Lewis and Clark, Lincoln, Mineral, Missoula, Pondera, Powell, Ravalli, and Teton Counties and northern and east-central Idaho in portions of Bonner, Boundary, Clearwater, and Idaho Counties. The current proposal represents a 1,808-mi 2 (4,683-km 2 ) reduction in the 2014 designation for this unit, although it includes new areas of proposed critical habitat in northern Idaho and along the central Idaho-Montana border. This unit was occupied by lynx at the time of listing and is currently occupied by the species. Lynx are known to be widely distributed throughout this unit and breeding has been documented in multiple locations. This unit supports a resident population thought by lynx researchers to number between 200 and 300 lynx (Lynx SSA Team 2016, p. 41). This unit is directly connected to lynx habitats and populations in southwestern Alberta and southeastern British Columbia, Canada. Lynx in this unit represent the southern extent of a larger cross-border population, most of which occurs in Western Canada.

Land ownership within the unit is 90 percent Federal, 4 percent State, 3 percent Tribal, and 3 percent private. Federal lands in this unit include National Forest System lands within the Kootenai, Flathead, Lolo, and Helena-Lewis and Clark National Forests in Montana and the Idaho Panhandle National Forest and the Clearwater portion of the Nez Perce-Clearwater National Forest in Idaho; National Park Service lands in Glacier National Park; and BLM lands in the Garnet Resource Area. State lands in this unit include areas managed by the Montana Department of Natural Resources and Conservation; Montana Fish, Wildlife, and Parks; and the Idaho Department of Lands. Tribal lands within this unit include parts of the Confederated Salish and Kootenai Tribes Flathead Reservation and the Blackfeet Reservation, both in Montana. State and Tribal lands in this unit are included in the proposed critical habitat designation but will be considered for exclusion in accordance with section 4(b)(2) of the Act and some or all may be excluded from the final designation.

The physical or biological features essential to the conservation of the Canada lynx in this unit may require special management considerations or protection to address activities that may result in removal or reduction of boreal/subalpine forest conditions that support Canada lynx and snowshoe hares. Such activities may include, but are not limited to road construction and maintenance, and commercial, recreational, and energy/mineral development, when they remove or reduce boreal forest in a manner that impacts snowshoe hare densities, the size of suitable habitat patches to support breeding lynx populations, and permeability of landscapes for lynx daily movements and dispersal in this unit. Climate change is expected to negatively impact the duration of deep fluffy snow conditions favorable to lynx in this unit over time.

Unit 4 consists of 2,354 mi 2 (6,097 km 2 ) located in north-central Washington in portions of northern Chelan, Okanogan, and eastern Skagit and Whatcom Counties. The current proposal represents a 520-mi 2 (1,346-km 2 ) increase from the 2014 designation for this unit. This unit was occupied by lynx at the time of listing and is currently occupied by the species. Lynx are known to be distributed throughout much of this unit and breeding has been documented. The Service estimates that this unit is potentially capable of supporting a resident population of 90-120 lynx, but extensive large wildfires in roughly half of lynx habitat over the past 15-20 years are thought to have reduced its carrying capacity commensurately (but perhaps temporarily). Nonetheless, a systematic lynx DNA collection effort between 2018 to 2023 documented 73 individual lynx in north central Washington (Akins and Ransom 2024, pers. comm.). This unit is directly connected to lynx habitats and populations in southern British Columbia, Canada, and lynx in this unit represent the southern extent of a larger cross-border population, most of which occurs in Western Canada.

Land ownership within the unit is 93 percent Federal and 7 percent State, with small parcels of private lands that represent less than one-half of 1 percent of the unit. Federal lands include 1,732 mi 2 (4,485 km 2 ) within the Okanogan-Wenatchee National Forest and 117 mi 2 (303 km 2 ) of North Cascades National Park. It also includes 39 mi 2 (100 km 2 ) of State Forest lands within the Loomis Natural Resources Conservation Area, which is managed by the Washington Department of Natural Resources. We excluded these State Forest lands from previous critical habitat designations and will again consider them for exclusion under section 4(b)(2) of the Act.

The physical or biological features essential to the conservation of the Canada lynx in this unit may require special management considerations or protection to address activities that may result in removal or reduction of boreal/subalpine forest conditions that support Canada lynx and snowshoe hares. Such activities may include, but are not limited to extensive, high-intensity wildfires, road construction and maintenance, and commercial, recreational, and energy/mineral development, when they remove or reduce boreal forest in a manner that impacts snowshoe hare densities, the size of suitable habitat patches to support breeding lynx populations, and permeability of landscapes for lynx daily movements and dispersal in this unit. Climate change is expected to negatively impact the duration of deep fluffy snow conditions favorable to lynx in this unit over time.

Unit 5 consists of 1,121 mi 2 (2,902 km 2 ) located in west-central and northwestern Wyoming in portions of Fremont, Lincoln, Sublette, and Teton Counties. The current proposal represents an 8,025-mi 2 (20,785-km 2 ) reduction from the 2014 designation for this unit. Previous research documented very low snowshoe hare densities throughout much of the Greater Yellowstone Area (GYA) (Hodges et al. 2009, entire), but with small pockets of habitat on the Bridger-Teton National Forest in the southern part of the GYA supporting high hare densities (Berg et al. 2012, p. 1483). Recent habitat modeling that is foundational to this critical habitat revision (Olson et al. 2021, entire) demonstrated that most of the GYA, including areas previously designated as lynx critical habitat, does not contain the physical and biological features necessary to support persistent lynx residency. This unit was occupied at the time of listing and occasional lynx occurrence has been documented since then. It is uncertain whether this unit historically supported a small resident population or if lynx presence and reproduction were and are naturally ephemeral and intermittent. The area currently does not appear to support a resident breeding population.

Based on home range sizes and lynx densities estimated elsewhere in the western part of the DPS range (Montana, Washington, Colorado), the Service estimates that this unit could potentially support a population of 25-50 lynx if sufficient habitat conditions and hare densities could be achieved and maintained, and a resident lynx population is established via translocation. This unit is not directly connected to lynx habitats and populations elsewhere in the DPS range or in the core of the species' range in Western Canada. However, historical records suggest that dispersing lynx associated with cyclic irruptions of lynx from Canada into the northern contiguous United States occasionally reached the GYA (McKelvey et al. 2000a, pp. 229-230). Additionally, at least nine radio-marked lynx released in Colorado subsequently moved into or through the GYA unit in the period 1999-2010, with several establishing temporary residency in the area proposed for critical habitat designation (Ivan 2017, entire).

Land ownership within the unit is more than 99 percent Federal and includes small (less than 4 mi 2 (10 km 2 ) parcels of private and State lands; there are no Tribal lands. Most of this unit occurs within the Bridger-Teton National Forest, with a smaller area in the Shoshone National Forest and several small parcels of BLM lands managed by the Kemmerer and Pinedale Field Offices.

The physical or biological features essential to the conservation of the Canada lynx in this unit may require special management considerations or protection to address activities that may result in removal or reduction of boreal/subalpine forest conditions that support Canada lynx and snowshoe hares. Such activities may include, but are not limited to road construction and maintenance, and commercial, recreational, and energy/mineral development, when they remove or reduce boreal forest in a manner that impacts snowshoe hare densities, the size of suitable habitat patches to support breeding lynx populations, and permeability of landscapes for lynx daily movements and dispersal in this unit. Climate change is expected to negatively impact the duration of deep fluffy snow conditions favorable to lynx in this unit over time.

Unit 6 consists of 7,679 mi 2 (19,889 km 2 ) located in west-central and southwestern Colorado in portions of Archuleta, Boulder, Chaffee, Clear Creek, Conejos, Dolores, Eagle, Gilpin, Grand, Gunnison, Hinsdale, La Plata, Lake, Mineral, Montezuma, Montrose, Ouray, Park, Pitkin, Rio Grande, Saguache, San Juan, San Miguel, and Summit Counties, and northern New Mexico in portions of Rio Arriba County. Critical habitat was not previously designated in the Southern Rockies. At the time of listing, this unit was occupied by lynx translocated from Canada and Alaska and it is currently occupied by the descendants of those released lynx. It is uncertain whether this unit historically supported a resident population or if lynx presence was naturally ephemeral and intermittent.

The area currently supports a resident breeding population that is the result of the State of Colorado's Canada Lynx Reintroduction Program, which included the 1999-2006 translocations of 218 lynx from Canada and Alaska into the San Juan Mountains in southwestern Colorado, with continued lynx occurrence and reproduction documented annually since then. Lynx researchers with Colorado Parks and Wildlife estimate the current size of the population at 75-150 resident lynx. This unit is not directly connected to lynx habitats and populations elsewhere in the DPS range or in the core of the species' range in western Canada. However, historical records suggest that dispersing lynx associated with cyclic irruptions of lynx from Canada into the northern contiguous United States occasionally reached the Southern Rockies. Some of the lynx released into Colorado dispersed into surrounding States, with some traveling north into the GYA, Montana and Idaho.

Land ownership within the unit is almost 89 percent Federal, almost 9 percent private, 1 percent State, and less than 1 percent Tribal and local government. Most (96 percent of) Federal lands occur on national forests, including the Arapaho, Gunnison, Pike, Rio Grande, Roosevelt, San Isabel, San Juan, Uncompahgre, and White River National Forests in Colorado, and the Carson National Forest in New Mexico. The remaining 4 percent of Federal lands occur on BLM lands, mostly those managed by the Gunnison Field Office with smaller parcels managed by the Kremmling, Royal Gorge, and Uncompahgre field offices, and smaller parcels of U.S. Fish and Wildlife Service and Bureau of Reclamation lands. Less than 1 percent of this unit includes Off-Reservation Tribal Trust lands of the Jicarilla Apache Nation in northern New Mexico. Tribal lands will be considered for exclusion in accordance with section 4(b)(2) of the Act and some or all may be excluded from the final designation. It also includes small parcels of State and local government lands which, combined, represent less than one-half of 1 percent of the proposed critical habitat designation.

The physical or biological features essential to the conservation of the Canada lynx in this unit may require special management considerations or protection to address activities that may result in removal or reduction of boreal/subalpine forest conditions that support Canada lynx and snowshoe hares. Such activities may include, but are not limited to road construction and maintenance, and commercial, recreational, and energy/mineral development, when they remove or reduce boreal forest in a manner that impacts snowshoe hare densities, the size of suitable habitat patches to support breeding lynx populations, and permeability of landscapes for lynx daily movements and dispersal in this unit. Climate change is expected to negatively impact the duration of deep fluffy snow conditions favorable to lynx in this unit over time.

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.

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 (50 CFR 402.02).

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 formal 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 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. Reinitiation of consultation is required and shall be requested by the Federal agency, where discretionary Federal involvement or control over the action has been retained or is authorized by law and: (1) If the amount or extent of taking specified in the incidental take statement is exceeded; (2) if 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) if 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) if a new species is listed or critical habitat designated that may be affected by the identified action. 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 BLM 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 that our Federal Register documents “shall, to the maximum extent practicable also include a brief description and evaluation of those activities (whether public or private) which, in the opinion of the Secretary, if undertaken may adversely modify [critical] habitat, or may be affected by such designation.” Activities that may be affected by designation of critical habitat for the Canada lynx include those that may affect the physical or biological features of the Canada lynx' critical habitat (see Physical or Biological Features Essential to the Conservation of the Species).

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 any area from critical habitat if the benefits of exclusion outweigh those of inclusion, so long as exclusion will not result in extinction of the species concerned. 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 4(b)(2) exclusion analysis.

Executive Order (E.O.) 12866 and E.O. 13563 direct Federal agencies to assess the costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Consistent with these 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. To determine whether the designation of critical habitat may have an economic effect of $200 million or more in any given year (which would trigger section 3(f)(1) of E.O. 12866, as amended by E.O. 14094), we used a screening analysis to assess whether a revised designation of critical habitat for the Canada lynx DPS is likely to exceed this 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 Canada lynx DPS (Industrial Economics, Inc. (IEc) 2024, 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 economic analysis of the proposed critical habitat designation for the Canada lynx DPS and 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 proposed critical habitat designations. In our evaluation of the probable incremental economic impacts that may result from the proposed designation of critical habitat for the Canada lynx, first we identified, in the IEM dated May 31, 2024, probable incremental economic impacts associated with the following categories of activities: (1) timber harvest; (2) silviculture; (3) wildfire response and management; (4) fuels reduction; (5) recreation management; (6) domestic livestock grazing; (7) infrastructure/facilities maintenance/development; and (8) residential development/construction. 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 affects only activities conducted, funded, permitted, or authorized by Federal agencies. Because the species is listed, in areas where the Canada lynx is present, Federal agencies are 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 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 Canada lynx's critical habitat. Because this species has been listed since 2000 and critical habitat has been designated since 2006, we have a long consultation history to inform this distinction. 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 revision and 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 revised critical habitat designation for the Canada lynx DPS in the Western United States includes approximately 19,112 mi 2 (49,500 km 2 ) in four occupied critical habitat units in Colorado, Idaho, Montana, New Mexico, Washington, and Wyoming. This proposed revision results in an approximately 1,650-mi 2 (4,274-km 2 ) reduction from the 2014 critical habitat designation in the Western United States. Land ownership is approximately 91 percent Federal, 5 percent private, 3 percent State, 1 percent Tribal, and less than 1 percent other. This rule makes no updates to existing critical habitat in Maine and Minnesota; therefore, the economic analysis does not consider the effects of critical habitat in those States.

The incremental effects of revising critical habitat for the Canada lynx are likely to be limited to changes in administrative effort to evaluate the potential for adverse modification of Canda lynx critical habitat. The entities most likely to incur incremental costs are parties to section 7 consultations, including Federal action agencies and, in some cases, third parties, most frequently State agencies or municipalities. This analysis finds that administrative costs and cost savings are on the order of $66,000 and $47,000 respectively, in a given year (2024 dollars). The expected net effect of revising critical habitat for the Canada lynx is a $19,000 increase in administrative costs per year. Thus, this analysis finds that despite a net reduction in the size of critical habitat for the species, the costs of critical habitat are expected to increase given the geographic representation of consultations across the new and removed areas. Incremental economic benefits and forgone benefits are not anticipated. Therefore, the rule is unlikely to meet the threshold for a significant rule as defined in section 3(f)(1) of E.O. 12866, as amended by E.O. 14094.

This finding is based on several factors, including:

• No change in costs of complying with critical habitat in existing critical habitat that is included in the proposed revised critical habitat.

• The proposed units are considered occupied by the Canada lynx, and occupied units are afforded significant baseline protection under the Act due to the presence of the listed species.

• All projects with a Federal nexus would be subject to section 7 consultation regardless of the designation of critical habitat due to the presence of the listed species.

• Critical habitat is not likely to change the Service's recommendation for project modifications as part of future consultations considering the Canada lynx.

• The Canada lynx receives additional baseline protection from co-occurring listed species, which include species with overlapping critical habitat and similar resource and habitat needs.

Our analysis finds that the proposed revised critical habitat for the Canada lynx is unlikely to result in economic impacts that exceed $200 million in any single year; therefore, they would not be significant. The incremental effects resulting from the proposed critical habitat for the Canada lynx are subject to uncertainty due to limited information on what future projects may require section 7 consultation that considers Canada lynx habitat. However, the focus of the screening analysis is on the likelihood that this proposed rule is economically significant. It is unlikely that additional data gathering and analysis to address uncertainty would change the findings of this analysis.

We are soliciting data and comments from the public on the economic analysis discussed above. During the development of a final designation, we will consider the information presented in the economic analysis 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), 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, we 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 us 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 the Canada lynx DPS 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 approved and permitted conservation agreements or plans covering the species in the area—such as safe harbor agreements (SHAs), candidate conservation agreements with assurances (CCAAs) or “conservation benefit agreement” or “conservation agreement” (CBAs) (CBAs are a new type of agreement replacing SHAs and CCAAs in use after April 2024 (89 FR 26070; April 12, 2024)) or HCPs, 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.

When analyzing other relevant impacts of including a particular area in a designation of critical habitat, we weigh those impacts relative to the conservation value of the particular area. To determine the conservation value of designating a particular area, we consider a number of factors, including, but not limited to, the additional regulatory benefits that the area would receive due to the protection from destruction or adverse modification as a result of actions with a Federal nexus, the educational benefits of mapping essential habitat for recovery of the listed species, and any benefits that may result from a designation due to State or Federal laws that may apply to critical habitat.

In the case of the Canada lynx, the benefits of critical habitat include public awareness of the presence of Canada lynx and the importance of habitat protection, and, where a Federal nexus exists, increased habitat protection for Canada lynx due to protection from destruction or adverse modification of critical habitat. Continued implementation of an ongoing management plan that provides conservation equal to or more than the protections that result from a critical habitat designation would reduce those benefits of including that specific area in the critical habitat designation.

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

As mentioned above, as part of our section 4(b)(2) analysis, we consider whether there are approved and permitted conservation agreements or plans covering the species in the area such as SHAs, CCAAs, CBAs or HCPs. Under sections 10(a)(1)(A) and 10(a)(1)(B) of the Act, non-Federal entities may develop these agreements or plans when they seek authorization for take that may otherwise be prohibited under section 9 through an enhancement of survival (EOS) or incidental take permit (ITP), respectively.

Property owners seeking an EOS permit collaborate with the Service to develop a CBA to support the application. The EOS permit authorizes take associated with implementing the agreement and ongoing land management activities that provide a net conservation benefit to the covered species. The CBA replaces two previous types of voluntary agreements (SHAs and CCAAs) going forward for new agreements after May 2024. However, permitted SHAs and CCAAs or those noticed in the Federal Register prior to May 2024 remain in effect.

For incidental take permits issued under section 10(a)(1)(B) of the Act, applicants are required to develop a conservation plan, more commonly known as an HCP, to support their application. ITPs authorize take that is incidental to, but not the purpose of, carrying out otherwise lawful activities provided that the impact of the taking is minimized and mitigated to the maximum extent practicable.

For both section 10(a)(1)(A) and 10(a)(1)(B) permits, we provide permittees with assurances. In the case of section 10(a)(1)(A) permits, we may not require additional or different conservation measures to be undertaken by a permittee without the consent of the permittee. In the case of section 10(a)(1)(B), we will not impose further land-, water-, or resource-use restrictions, or require additional commitments of land, water, or finances, beyond those agreed to in the HCP.

We place great value on the partnerships that are developed during the preparation and implementation of conservation plans and agreements. In some cases, permittees agree to do more for the conservation of the species and their habitats on private lands than designation of critical habitat would provide alone.

When we undertake a discretionary section 4(b)(2) exclusion analysis based on conservation plans or agreements, we anticipate consistently excluding such areas if incidental take caused by the activities in those areas is covered by the permit under section 10 of the Act and the plan meets all of the following three factors:

a. The permittee is properly implementing the CCAA/SHA/HCP and is expected to continue to do so for the term of the agreement. A CCAA/SHA/HCP is properly implemented if the permittee is and has been fully implementing the commitments and provisions in the CCAA/SHA/HCP, implementing agreement, and permit.

b. The species for which critical habitat is being designated is a covered species in the CCAA/SHA/HCP, or very similar in its habitat requirements to a covered species. The recognition that the Services extend to such an agreement depends on the degree to which the conservation measures undertaken in the CCAA/SHA/HCP would also protect the habitat features of the similar species.

c. The CCAA/SHA/HCP specifically addresses that species' habitat and meets the conservation needs of the species in the planning area.

See the 2016 Policy for additional details. Because combining types of agreements such as SHAs and CCAAs into the term “CBAs” is a recent development (89 FR 26070; April 12, 2024), the 2016 Policy did not expressly reference CBAs. However, because CBAs replace CCAAs and SHAs moving forward we treat CBAs similarly to how we treat CCAAs/SHAs/HCPs described above.

The proposed critical habitat designation includes areas that are covered by the following permitted plan providing for the conservation of the Canada lynx: Montana Department of Natural Resources and Conservation (DNRC) Forested State Trust Lands Habitat Conservation Plan. After considering the factors described above, we have identified 159 mi 2 (413 km 2 ) that we have reason to consider excluding because of this permitted plan. We describe below our reasons for considering these areas for potential exclusion.

The Montana DNRC multi-species HCP includes a lynx conservation strategy that minimizes impacts of forest management activities on lynx, complements lynx conservation objectives set forth in the States' comprehensive fish and wildlife conservation strategy (Montana Department of Fish, Wildlife and Parks 2005, entire), and describes conservation commitments that are based on recent information from lynx research in Montana (Montana DNRC and U.S. Fish and Wildlife Service 2010, pp. 2-45-2-61). It also commits to active lynx monitoring and adaptive management programs (Montana DNRC and U.S. Fish and Wildlife Service 2010, pp. 4-27-4-37). The Montana DNRC worked closely with the Service in developing and completing a National Environmental Policy Act (NEPA) analysis on this multi-species HCP (Montana DNRC and U.S. Fish and Wildlife Service 2010, entire).

In our biological opinion regarding potential impacts to lynx of implementation of this HCP, the Service concluded that the HCP promotes the conservation of lynx and their habitat through increased conservation commitments by [Montana] DNRC for forest management practices, maintenance of the habitat mosaic, structure, and components required to support lynx and their primary prey, the snowshoe hare, monitoring, and adaptive management (Service 2011, p. III-94). We determined that the proposed action is not likely to jeopardize the continued existence of Canada lynx within the contiguous U.S. DPS and that forest management activities managed under the conservation commitments of the DNRC HCP would not appreciably reduce the likelihood of survival and recovery of Canada lynx (Service 2011, p. III-94).

In the previous final revised critical habitat designation, published in the Federal Register on September 12, 2014 (79 FR 54782), we determined that the benefits of excluding lands managed in accordance with the DNRC HCP outweighed the benefits of including them in the designation, and that doing so would not result in extinction of the species. We, therefore, again consider excluding 159 mi 2 (413 km 2 ) of forested State Trust lands managed in accordance with the DNRC HCP from the revised lynx critical habitat designation in Unit 3. However, in the final rule, we will again weigh the benefits of inclusion versus exclusion of these lands in the final critical habitat designation.

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

Shown below is a non-exhaustive list of factors that we consider in evaluating how non-permitted plans or agreements affect the benefits of inclusion or exclusion. These are not required elements of plans or agreements. Rather, they are some of the factors we may consider, and not all of these factors apply to every plan or agreement.

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

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

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

(iv) Whether National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq. ) compliance was required.

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

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

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

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

The proposed critical habitat designation includes areas that are covered by the following non-permitted plan providing for the conservation of the Canada lynx: State of Washington Department of Natural Resources (WDNR) Lynx Habitat Management Plan for DNR-managed Lands (WDNR LHMP). After considering the factors described above, we have identified 168 mi 2 (435 km 2 ) that we have reason to consider excluding because of this plan. We describe below our reasons for considering these areas for potential exclusion.

The WDNR LHMP encompasses 197 mi 2 (510 km 2 ) of WDNR-managed lands distributed throughout north-central and northeastern Washington in areas delineated as Lynx Management Zones in the Washington State Lynx Recovery Plan (Stinson 2001, p. 39; Washington DNR 2006, pp. 5-13). Of the area covered by the plan, 168 mi 2 (435 km 2 ) overlaps the area proposed for designation as critical habitat. The WDNR LHMP was finalized in 2006 and is a revision of the lynx plan that WDNR began implementing in 1996. The 1996 plan was developed as a substitute for a species-specific critical habitat designation required by Washington Forest Practices rules in response to the lynx being State-listed as threatened (Washington DNR 2006, p. 5). The 2006 WDNR LHMP provided further provisions to avoid the incidental take of lynx (Washington DNR 2006, p. 6). WDNR is committed to following the LHMP until 2076, or until the lynx is delisted (Washington DNR 2006, p. 6). WDNR requested that lands subject to the plan be excluded from previous critical habitat designation in 2014.

The WDNR LHMP contains measures to guide WDNR in creating and preserving quality lynx habitat through its forest management activities. The objectives and strategies of the LHMP are developed for multiple planning scales (ecoprovince and ecodivision, lynx management zone, lynx analysis unit (LAU), and ecological community), and include:

(1) Encouraging genetic integrity at the species level by preventing bottlenecks between British Columbia and Washington by limiting size and shape of temporary non-habitat along the border and maintaining major routes of dispersal between British Columbia and Washington;

(2) Maintaining connectivity between subpopulations by maintaining dispersal routes between and within zones and arranging timber harvest activities that result in temporary non-habitat patches among watersheds so that connectivity is maintained within each zone;

(3) Maintaining the integrity of requisite habitat types within individual home ranges by maintaining connectivity between and integrity within home ranges used by individuals and/or family groups; and

(4) Providing a diversity of successional stages within each LAU and connecting denning sites and foraging sites with forested cover without isolating them with open areas by prolonging the persistence of snowshoe hare habitat and retaining coarse woody debris for denning sites (Washington DNR 2006, p. 29).

The LHMP identifies specific guidelines to achieve the objectives and strategies at each scale; it also describes how WDNR will monitor and evaluate the implementation and effectiveness of the LHMP by providing implementation monitoring reports to the Service and Washington Department of Fish and Wildlife every 2 years (Washington DNR 2006, pp. 29-63).

In both of the previous final revised critical habitat designations for lynx, published in the Federal Register on February 25, 2009 (74 FR 8616) and September 12, 2014 (79 FR 54782), we determined that the benefits of excluding lands managed in accordance with the WDNR LHMP outweighed the benefits of including them in the designation, and that doing so would not result in extinction of the species. We again consider excluding 168 mi 2 (435 km 2 ) of lands managed in accordance with the WDNR LHMP from the revised lynx critical habitat designation. However, in the final rule, we will again weigh the benefits of inclusion versus exclusion of these lands in the final critical habitat designation.

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

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

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

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

The proposed critical habitat designation includes the following Tribal lands or resources: the Confederated Salish and Kootenai Tribes of the Flathead Indian Reservation in Montana (Unit 3), the Blackfeet Indian Reservation in Montana (Unit 3), and Jicarilla Apache Tribal Trust Lands in New Mexico (Unit 6).

In the previous final rules designating revised critical habitat for lynx, published in the Federal Register on February 25, 2009 (74 FR 8616) and September 12, 2014 (79 FR 54782), we determined that the benefits of excluding Flathead Indian Reservation Lands outweighed the benefits of including them. We determined that exclusion of these Tribal lands from the designation of critical habitat for the lynx will not result in the extinction of the species because the Confederated Salish and Kootenai Tribes of the Flathead Nation implement programs for the conservation of the species, and physical and biological features essential to it, in occupied areas. The protections afforded to the lynx under the jeopardy standard will remain in place for the areas considered for exclusion from revised critical habitat. Therefore, and in light of Secretary's Order 3206 and Tribal management of lynx and their habitat, we are considering excluding 186 mi 2 (482 km 2 ) of Flathead Indian Reservation Lands from the revised lynx critical habitat designation. However, in the final rule, we will again weigh the benefits of inclusion versus exclusion of these lands in the final critical habitat designation.

Approximately 44 mi 2 (114 km 2 ) of Blackfeet Indian Reservation Lands and 37 mi 2 (97 km 2 ) of Jicarilla Apache Tribal Trust lands overlaps the area proposed for designation as critical habitat for the Canada lynx in the Western United States. In light of Secretary's Order 3206, we will consider these lands for exclusion from the final critical habitat designation. We will coordinate with these Tribes to evaluate any programs that are implemented for the conservation of the species, and physical and biological features essential to it, in occupied areas on Tribal lands. We will weigh the benefits of inclusion versus exclusion of these lands in the final critical habitat designation.

We have reason to consider excluding the following areas under section 4(b)(2) of the Act from the final critical habitat designation for the Canada lynx DPS in the Western United States. Table 2 below provides approximate areas (mi 2 , km 2 ) of lands that meet the definition of critical habitat, but for which we are considering possible exclusion under section 4(b)(2) of the Act from the final critical habitat rule.

In conclusion, for this proposed rule, we have reason to consider excluding the areas identified above from the final designation based on other relevant impacts. We specifically solicit comments on the inclusion or exclusion of such areas. We also solicit comments on whether there are potential economic, national security, or other relevant impacts from designating any other particular areas as critical habitat. As part of developing the final designation of critical habitat, we will evaluate the information we receive regarding potential impacts from designating the areas described above or any other particular areas, and we may conduct a discretionary exclusion analysis to determine whether to exclude those areas under authority of section 4(b)(2) 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.) 14094 amends and reaffirms the principles of E.O. 12866 and E.O. 13563 and states that regulatory analysis should facilitate agency efforts to develop regulations that serve the public interest, advance statutory objectives, and are consistent with E.O.s 12866 and 13563. Regulatory analysis, as practicable and appropriate, shall recognize distributive impacts and equity, to the extent permitted by law. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this proposed rule in a manner consistent with these requirements.

Executive Order 12866, as reaffirmed by E.O. 13563 and amended and reaffirmed by E.O. 14094, provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this rule is significant.

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; title II of Pub. L. 104-121, March 29, 1996), 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, 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 “to the extent permitted by law” when undertaking actions identified as significant energy actions (66 FR 28355; May 22, 2001). E.O. 13211 defines a “significant energy action” as an action that (i) is a significant regulatory action under E.O. 12866 or E.O. 14094 (88 FR 21879; April 11, 2023)); and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy. This rule is a significant regulatory action under E.O. 12866. In our economic analysis, we did not find that this proposed critical habitat designation revision would significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and there is no requirement to prepare a statement of energy effects for this action.

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 mandates” include 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 much of the proposed designation (91 percent) occurs on Federal lands. Furthermore, based on an analysis conducted for the previous designation of critical habitat in 2014 and extrapolated to this designation, we do not expect this rule to significantly or uniquely affect small governments. Small governments will be affected only to the extent that any programs having Federal funds, permits, or other authorized activities must ensure that their actions will not adversely affect the critical habitat. 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 Canada lynx in a takings implications assessment. The Act does not authorize the Services 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 Canada lynx, 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, the 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 essential to 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 are presented on maps, 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 and species-specific protective regulations promulgated concurrently with a decision to list or reclassify a species as threatened. The courts have upheld this position ( e.g., Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995) (critical habitat); Center for Biological Diversity v. U.S. Fish and Wildlife Service, 2005 WL 2000928 (N.D. Cal. Aug. 19, 2005) (concurrent 4(d) rule)).

However, when we designate as “critical habitat” any of the areas that fall within the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, including this designation proposed for the Canada lynx, we undertake a NEPA analysis for that critical habitat designation consistent with the Tenth Circuit's ruling in Catron County Board of Commissioners v. U.S. Fish and Wildlife Service, 75 F.3d 1429 (10th Cir. 1996). We invite the public to comment on the extent to which this proposed critical habitat designation may have a significant impact on the human environment, or fall within one of the categorical exclusions for actions that have no individual or cumulative effect on the quality of the human environment. We will complete our analysis, in compliance with NEPA, before finalizing this proposed rule.

In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951, May 4, 1994), E.O. 13175 (Consultation and Coordination with Indian Tribal Governments), the President's memorandum of November 30, 2022 (Uniform Standards for Tribal Consultation; 87 FR 74479, December 5, 2022), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with federally recognized Tribes and Alaska Native Corporations (ANCs) on a government-to-government basis. In accordance with joint Secretary's Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that Tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes.

On October 13, 2022, the Service sent a letter to Tribal partners across the range of the Canada lynx in the Western United States, indicating that we would be updating the SSA, explaining why it was necessary to revise the SSA to inform this critical habitat revision, and requesting additional information. We will coordinate with Tribes that have lands within the boundary of this proposed critical habitat revision to determine eligibility for exclusion of those lands from the final designation of critical habitat. We will continue to work with Tribal entities during the development of a final rule for the designation of critical habitat for the Canada lynx.

A complete list of references cited in this rulemaking is available on the internet at https://www.regulations.gov and upon request from the Montana 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 Montana Ecological Services Field Office.

Martha Williams, Director of the U.S. Fish and Wildlife Service, approved this action on November 18, 2024, for publication. On November 21, 2024, Martha Williams authorized the undersigned to sign the document electronically and submit it to the Office of the Federal Register for publication as an official document of the U.S. Fish and Wildlife Service.

Accordingly, the U.S. Fish and Wildlife Services proposes to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:

The revisions and additions read as follows:

NMFS manages the GOA groundfish fisheries in the exclusive economic zone (EEZ) of the GOA under the FMP. The Council prepared and NMFS approved the FMP under the authority of the Magnuson-Stevens Act (16 U.S.C. 1801 et seq. ). Regulations governing U.S. fisheries and implementing the FMP appear at 50 CFR parts 600, 679, and 680.

The FMP and its implementing regulations require that NMFS, after consultation with the Council, specify the total allowable catch (TAC) for each target species, the sum of which must be within the optimum yield (OY) range of 116,000 to 800,000 metric tons (mt) (§ 679.20(a)(1)(i)(B) and 679.20(a)(2)). Section 679.20(c)(1) further requires NMFS to publish and solicit public comment on proposed annual TACs and apportionments thereof for each target species, Pacific halibut PSC limits, and seasonal allowances of pollock and Pacific cod. The proposed harvest specifications in tables 1 through 19 of this rule satisfy these requirements. For 2025 and 2026, the sum of the proposed TAC amounts is 482,000 mt.

Under § 679.20(c)(3), NMFS will publish the final 2025 and 2026 harvest specifications after (1) considering comments received within the comment period (see DATES ), (2) consulting with the Council at its December 2024 meeting, (3) considering information presented in the 2025 SIR to the Final EIS that assesses the need to prepare a Supplemental EIS (see ADDRESSES ), and (4) considering information presented in the final 2024 SAFE report, including the 2024 Ecosystem Status Report (ESR) for the GOA.

The Alaska Board of Fisheries (BOF) is considering five proposals for management of fishing in State waters that if adopted could potentially affect the GOA groundfish harvest specifications for 2025 and 2026. The BOF will not take action on these proposals until after the December 2024 Council meeting.

Proposal 8, if adopted by the BOF, would increase the Prince William Sound (PWS) Pacific cod fishery guideline harvest level (GHL) from 25 percent to a minimum of 35 percent and a maximum of 50 percent of the acceptable biological catch (ABC) for the Eastern Regulatory Area of the GOA. The final 2025 and 2026 harvest specifications would have to account for this increase in the GHL when specifying the Pacific cod TAC for the Eastern Regulatory Area to ensure that the sum of all State waters and Federal waters Pacific cod removals from the GOA do not exceed ABC recommendations. Proposal 13, if adopted, allows for 100 percent retention of longnose and big skate in the PWS Pacific cod and Pacific halibut fisheries until 25 percent of the TAC for the Eastern Regulatory Area is reached. The final 2025 and 2026 harvest specifications would need to account for this change when specifying TACs for longnose and big skates for the Eastern Regulatory Area to ensure that the sum of all skate removals from State and Federal waters of the GOA do not exceed ABC recommendations. Proposals 14 and 16, if adopted, would limit or close the PWS pollock fishery, which would mean a reduced or no GHL, and the final 2025 and 2026 harvest specifications would account for this change to the GHL by changing the TAC. Proposal 43, if adopted, would establish a directed octopus fishery in PWS, which means the State could set a GHL. The final 2025 and 2026 harvest specifications would have to account for this GHL for octopus in PWS when specifying the TAC to ensure that the sum of all octopus removals from the State and Federal waters of the GOA do not exceed ABC recommendation.

In October 2024, the Council's Scientific and Statistical Committee (SSC), its Advisory Panel (AP), and the Council reviewed the most recent biological and harvest information about the condition of the GOA groundfish stocks. The Council's GOA Groundfish Plan Team (Plan Team) compiled and presented this information in the final 2023 SAFE report for the GOA groundfish fisheries, dated December 2023 (see ADDRESSES ). The final 2024 SAFE report, including individual stock assessments, will be available online (see ADDRESSES ). The SAFE report contains a review of the latest scientific analyses and estimates of each species' biomass and past, present, and possible future condition of the stocks and groundfish fisheries off Alaska. The SAFE report also contains an economic summary informed by the Economic SAFE report (available online, see ADDRESSES ) and ecosystem information summarized from the ESR. The SAFE provides information to the Council and NMFS for recommending and setting, respectively, annual harvest levels for each stock and documenting significant trends or changes in the resource, marine ecosystems, and fisheries over time.

An ESR is prepared for the GOA ecosystem (as well as for the Bering Sea and Aleutian Islands ecosystems). ESRs compile and summarize information about the status of the Alaska marine ecosystems for the Plan Team, SSC, AP, Council, NMFS, and the public, and they are updated annually. These ESRs include ecosystem report cards, ecosystem assessments, and ecosystem-based management indicators ( i.e., climate indices, sea surface temperature), which together provide context for ecosystem-based fisheries management in Alaska. The ESRs inform stock assessments and are integrated into the annual harvest recommendations primarily through inclusion in stock assessment-specific risk tables that inform the specification of ABC for each target species. The ESRs provide context for the SSC's recommendations for overfishing levels (OFL) and ABC, as well as for the Council's TAC recommendations. The SAFE reports and the ESRs are presented at the October and December Council meetings before the SSC, AP, and the Council make groundfish harvest recommendations, and they aid NMFS in implementing these annual groundfish harvest specificaitions.

In addition to the 2023 SAFE report (the most recent final SAFE report available), the Plan Team, SSC, and Council also reviewed preliminary survey data from 2024 surveys, updates on ecosystem and socioeconomic profiles (ESPs) for certain species, initial updates on climate and oceanography for Alaska ecosystems, summaries of potential changes to models, and stock assessment methodologies. From these data and analyses, the Plan Team and SSC recommend the proposed OFL and ABC for each species and species group. The AP and Council also review the data and analyses, including the 2023 SAFE report, as well as Plan Team and SSC recommendations for OFL and ABC to develop their TAC recommendations. The AP and Council recommended that the proposed 2025 and 2026 TACs be set equal to proposed ABCs for all species and species groups (a species or species groups' TAC cannot exceed its ABC), with the exception of the species and species groups further discussed below. The proposed OFLs, ABCs, and TACs could be changed in the final harvest specifications depending on the most recent scientific information contained in the final 2024 SAFE report and comments on this proposed rule. The individual stock assessments that comprise, in part, the 2023 SAFE report are available online (see ADDRESSES ). The final 2024 SAFE report will be available from the same source.

In November 2024, the Plan Team will update the 2023 SAFE report to include new information collected during 2024, such as NMFS stock surveys, revised stock assessments, and catch data. The Plan Team will compile this information and present the draft 2024 SAFE report at the December 2024 Council meeting. At that meeting, the SSC and the Council will review the 2024 SAFE report, and the Council will approve the 2024 SAFE report for use in informing the Council's final recommendations to NMFS. The Council will consider information in the 2024 SAFE report, recommendations from the November 2024 Plan Team meeting and December 2024 SSC and AP meetings, public testimony, and relevant written public comments in making its recommendations to NMFS for the final 2025 and 2026 harvest specifications. Pursuant to § 679.20(a)(2) and (3), NMFS will specify the final TACs based on the biological condition of groundfish stocks, a variety of socioeconomic considerations; ensuring that the sum of all the TACs is to fall within the OY range.

In previous years, the most significant changes (relative to the amount of assessed tonnage of fish) to the OFLs and ABCs from the proposed to the final harvest specifications have been based on the most recent NMFS stock surveys. These surveys provide updated estimates of stock biomass and spatial distribution and inform changes to the models used for producing stock assessments. At the September 2024 Plan Team meeting, NMFS scientists presented updated and new survey results. Scientists also discussed potential changes to assessment models and accompanying preliminary stock estimates. At the October 2024 Council meeting, the SSC reviewed this information. Species and species groups with proposed changes to assessment models include pollock, Pacific cod, dusky rockfish, and northern rockfish. Model changes may result in changes to the final OFLs, ABCs, and TACs.

In November 2024, the Plan Team will consider updated survey results and updated stock assessments for groundfish stocks, which will be included in the draft 2024 SAFE report. If the 2024 SAFE report indicates that the stock biomass trend is increasing for a species, then the final 2025 and 2026 harvest specifications for that species may reflect an increase from the proposed harvest specifications. Conversely, if the 2024 SAFE report indicates that the stock biomass trend is decreasing for a species, then the final 2025 and 2026 harvest specifications for that species may reflect a decrease from the proposed harvest specifications.

The proposed 2025 and 2026 OFLs and ABCs are based on the best available biological and scientific information, including projected biomass trends, information on assumed distribution of stock biomass, and revised technical methods used to calculate stock biomass. The FMP specifies the tiers to be used to calculate OFLs and ABCs. The tier applicable to a particular stock or stock complex is determined by the level of reliable information available to the fisheries scientists. This information is categorized into a successive series of six tiers to define OFLs and ABCs, with Tier 1 representing the highest level of information quality available and Tier 6 representing the lowest level of information quality available. The Plan Team used the FMP tier structure to calculate OFLs and ABCs for each groundfish species. The SSC adopted the proposed 2025 and 2026 OFLs and ABCs recommended by the Plan Team for all groundfish species. The proposed 2025 and 2026 TACs are based on the best available biological and socioeconomic information. In making its recommendations, the Council adopted the SSC's OFL and ABC recommendations and the AP's TAC recommendations for all groundfish species. NMFS has reviewed the recommendations of the SSC and Council for OFLs, ABCs, and TACs for target species and species groups in the GOA as well as any other relevant information. Based on that review, NMFS is proposing the OFLs, ABCs, and TACs set forth in the tables of this proposed rule as consistent with the Magnuson-Stevens Act, the FMP, and other applicable law, subject to further review and consideration after public comment.

The combined Western and Central (W/C) Regulatory Areas and the West Yakutat (WYK) District of the Eastern Regulatory Area (the W/C/WYK) pollock TAC and the GOA Pacific cod TACs are set to account for the State GHLs for the State waters pollock and Pacific cod fisheries so that the ABCs are not exceeded. These reductions are described below. The shallow-water flatfish TAC in the Western Regulatory Area, arrowtooth flounder TACs in the Western Regulatory Area and the Southeast Outside (SEO) District, and flathead sole TAC in the Western Regulatory Area are set to allow for increased harvest opportunities for these target species while conserving the halibut PSC limit for use in other fisheries. The Atka mackerel TAC is set to accommodate incidental catch amounts (ICA) in other fisheries. The other rockfish TAC in the SEO District of the Eastern Regulatory Area is set to reduce the amount of discards of the species in that complex.

NMFS's proposed apportionments of groundfish species are based on the distribution of biomass among the regulatory areas over which NMFS manages the species. Additional regulations govern the apportionment of pollock, Pacific cod, and sablefish. Additional detail on apportionments of pollock, Pacific cod, and sablefish are described below.

The proposed 2025 and 2026 TAC for the pollock stock in the combined W/C/WYK Regulatory Area is set to account for the GHL established by the State for the PWS pollock fishery. The Plan Team, SSC, AP, and Council have recommended that the sum of all State waters and Federal waters pollock removals from the GOA not exceed ABC recommendations. State fisheries managers set the PWS GHL at 2.5 percent of the annual W/C/WYK pollock ABC. Currently, this GHL is based on the GHL historical percent average from 2001 to 2010. For 2025 and 2026, this yields a projected PWS pollock GHL of 3,942 mt, a decrease of 17 percent from the 2024 PWS GHL of 4,769 mt. After reductions for the PWS GHL, the remaining 2025 and 2026 pollock ABC for the combined W/C/WYK areas is then apportioned among four statistical areas (Areas 610, 620, 630, and 640) and corresponding TACs are proposed to be set equal to the ABCs, as described below and detailed in table 1. The total TACs for the four statistical areas, plus the State GHL, do not exceed the combined W/C/WYK ABC. The proposed W/C/WYK 2025 and 2026 pollock ABC is 157,687 mt, and the proposed TAC is 153,745 mt.

Apportionments of pollock to the W/C/WYK management areas are considered to be apportionments of the TAC. Apportionments of the TAC in this manner allow NMFS to balance any transfer of TAC among Areas 610, 620, and 630 pursuant to § 679.20(a)(5)(iv)(B) and to ensure that the combined W/C/WYK ABC, ACL, and TAC are not exceeded.

NMFS proposes pollock TACs in the Western (Area 610) and Central (Areas 620 and 630) Regulatory Areas and the WYK (Area 640) and the SEO (Area 650) Districts of the GOA (see table 1). NMFS also proposes seasonal apportionment of the annual pollock TAC in the Western and Central Regulatory Areas of the GOA among Statistical Areas 610, 620, and 630. These apportionments are divided equally among the following two seasons: the A season (January 20 through May 31) and the B season (September 1 through November 1) (§§ 679.23(d)(2) and 679.20(a)(5)(iv)). Additional detail is provided below; table 2 lists these amounts.

The proposed 2025 and 2026 Pacific cod TACs (see table 1) are set to account for the State's GHLs for Pacific cod in State waters in the Western and Central Regulatory Areas, as well as in PWS (in the Eastern Regulatory Area). The Plan Team, SSC, AP, and Council recommended that the sum of all State waters and Federal waters Pacific cod removals from the GOA not exceed ABC recommendations. Accordingly, the Council recommended and NMFS proposes that the 2025 and 2026 Pacific cod TACs in the Western, Central, and Eastern Regulatory Areas account for State GHLs. Therefore, the proposed 2025 and 2026 Pacific cod TACs are less than the proposed ABCs by the following amounts: (1) Western GOA, 2,291 mt; (2) Central GOA, 4,495 mt; and (3) Eastern GOA, 641 mt. These amounts reflect the State's projected 2025 and 2026 GHLs in these areas, which are 30 percent of the Western GOA proposed ABC, and 25 percent of both the Eastern and Central GOA proposed ABCs.

The Western and Central GOA Pacific cod TACs are allocated among various gear and operational sectors. NMFS also establishes seasonal apportionments of the annual Pacific cod TACs in the Western and Central Regulatory Areas. The Pacific cod sector and seasonal apportionments are discussed in detail in a subsequent section and in table 4 of this rule.

The Council's recommendation for sablefish area apportionments takes into account the prohibition on the use of trawl gear in the SEO District of the Eastern Regulatory Area (§ 679.7(b)(1)) and makes available 5 percent of the Eastern Regulatory Area (WYK and SEO Districts combined) TAC to vessels using trawl gear for use as incidental catch in other trawl groundfish fisheries in the WYK District (§ 679.20(a)(4)(i)). Additional detail is provided below. Tables 5 and 6 list the proposed 2025 and 2026 allocations of the sablefish TAC to fixed gear and trawl gear in the GOA.

For 2025 and 2026, the Council recommends, and NMFS proposes, the OFLs, ABCs, and TACs listed in table 1. These amounts are consistent with the biological condition of groundfish stocks as described in the 2023 SAFE report. The proposed ABCs reflect harvest amounts that are less than the specified OFLs. The proposed TACs are adjusted for other biological and socioeconomic considerations and do not exceed ABCs. The sum of the proposed TACs for all GOA groundfish target species is 482,000 mt for 2025 and 2026, which is within the OY range specified by the FMP and implementing regulations. These proposed amounts and apportionments by area, season, and sector are subject to change by NMFS pending consideration of the 2024 SAFE report, public comment, and the Council's recommendations for the final 2025 and 2026 harvest specifications during its December 2024 meeting.

Section 679.20(b)(2) requires NMFS to set aside 20 percent of each TAC for pollock, Pacific cod, flatfish, sharks, and octopuses in reserve for possible apportionment at a later date during the fishing year. Section 679.20(b)(3) authorizes NMFS to reapportion all or part of these reserves. In 2024, NMFS reapportioned all of the reserves in the final 2024 and 2025 harvest specifications. For 2025 and 2026, NMFS proposes reapportionment of each of the reserves for pollock, Pacific cod, flatfish, sharks, and octopuses back into the original TAC from which the reserve was derived. NMFS expects, based on recent harvest patterns, that such reserves will not be necessary for the management of these fisheries and that the entire TAC for each of these species will be caught or are needed to promote efficient fisheries. The TACs in table 1 reflect this proposed reapportionment of reserve amounts to the original TAC for these species and species groups, i.e., each proposed TAC for the above-mentioned species or species groups contains the full TAC recommended by the Council.

In the GOA, pollock is apportioned by season and is further allocated for processing by inshore and offshore components. Pursuant to § 679.20(a)(5)(iv)(B), the annual pollock TAC specified for the Western and Central Regulatory Areas of the GOA is apportioned into two seasonal allowances of 50 percent each. As established by § 679.23(d)(2), the A and B season allowances are available from January 20 through May 31 and September 1 through November 1, respectively.

Pollock TACs in the Western and Central Regulatory Areas of the GOA are apportioned among Statistical Areas 610, 620, and 630 in proportion to the distribution of pollock biomass determined by the most recent NMFS surveys, pursuant to § 679.20(a)(5)(iv)(A). The pollock chapter of the 2023 SAFE report (see ADDRESSES ) contains a comprehensive description of the apportionment and reasons for the minor changes from past apportionments. Pollock is specified between two seasons for the Western and Central Regulatory Areas of the GOA (A and B seasons). There are four seasonal apportionments: A, B, C, and D seasons as outlined in the 2023 GOA pollock assessment in the 2023 SAFE report. The GOA pollock stock assessment continues to use a four-season methodology to determine pollock distribution in the Western and Central Regulatory Areas of the GOA to maintain continuity in the historical pollock apportionment time-series. A and B seasons from the assessment are aggregated into the A season for the purposes of specifications and C and D seasons from the assessement are aggregated into the B season for the purposes of specifications. This method is described and calculated in the 2023 GOA pollock assessment.

Within any fishing year, the amount by which a seasonal allowance is underharvested or overharvested may be added to, or subtracted from, subsequent seasonal allowances in a manner to be determined by the Regional Administrator (§ 679.20(a)(5)(iv)(B)). The rollover amount is limited to 20 percent of the subsequent seasonal TAC apportionment for the statistical area. Any unharvested pollock above the 20 percent limit could be further distributed to the subsequent season in the other statistical areas in proportion to the estimated biomass of the subsequent season and in an amount no more than 20 percent of the seasonal TAC apportionment in those statistical areas (§ 679.20(a)(5)(iv)(B)). The proposed 2025 and 2026 pollock TACs in the WYK District of 4,601 mt and the SEO District of 9,749 mt are not allocated by season.

Table 2 lists the proposed 2025 and 2026 area apportionments and seasonal allowances of pollock in the Western and Central Regulatory Areas. The amounts of pollock for processing by the inshore and offshore components are not shown. Section 679.20(a)(6)(i) requires allocation of 100 percent of the pollock TAC in all regulatory areas and all seasonal allowances to vessels catching pollock for processing by the inshore component after subtraction of amounts projected by the Regional Administrator to be caught by, or delivered to, the offshore component incidental to directed fishing for other groundfish species. Thus, the amount of pollock available for harvest by vessels harvesting pollock for processing by the offshore component is the amount that will be taken as incidental catch during directed fishing for groundfish species other than pollock, up to the maximum retainable amounts allowed by §  679.20(e) and (f). At this time, these ICAs of pollock are unknown and will be determined during the fishing year during the course of fishing activities by the offshore component.

Section 679.20(a)(12)(i) requires allocations for the 2025 and 2026 Pacific cod TACs in the Western and Central Regulatory Areas of the GOA among gear and operational sectors as well as seasonal apportionments of the Pacific cod TACs in the Western and Central Regulatory Areas. A portion of the annual TAC is apportioned to the A season for hook-and-line, pot, and jig gear from January 1 through June 10 and for trawl gear from January 20 through June 10. The remainder of the annual TAC is apportioned to the B season for jig gear from June 10 through December 31, for hook-and-line and pot gear from September 1 through December 31, and for trawl gear from September 1 through November 1 (§§ 679.23(d)(3) and 679.20(a)(12)). Section 679.20(a)(6)(ii) requires allocations of the 2025 and 2026 Pacific cod TACs annually between the inshore (90 percent) and offshore (10 percent) components in the Eastern Regulatory Area of the GOA.

In the Western GOA, the Pacific cod TAC is apportioned seasonally first to vessels using jig gear and then among catcher vessels (CVs) using hook-and-line gear, catcher/processors (CPs) using hook-and-line gear, CVs using trawl gear, CPs using trawl gear, and vessels using pot gear (§ 679.20(a)(12)(i)(A)). In the Central GOA, the Pacific cod TAC is apportioned seasonally first to vessels using jig gear and then among CVs less than 50 feet (15.2 meters (m)) in length overall using hook-and-line gear, CVs equal to or greater than 50 feet (15.2 m) in length overall using hook-and-line gear, CPs using hook-and-line gear, CVs using trawl gear, CPs using trawl gear, and vessels using pot gear (§ 679.20(a)(12)(i)(B)). Allocations to the jig sector for the Western and Central GOA are apportioned between the A season (60 percent) and the B season (40 percent) (§ 679.20(a)(12)(i)). Excluding seasonal apportionments to the jig gear sector, the remainder of the annual Pacific cod TACs are apportioned as follows: the seasonal apportionments of the annual TAC are 63.84 percent to the A season and 36.16 percent to the B season in the Western GOA and 64.16 percent to the A season and 35.84 percent to the B season in the Central GOA.

Under § 679.20(a)(12)(ii), any overage or underage of the Pacific cod allowance from the A season may be subtracted from, or added to, the subsequent B season allowance. In addition, any portion of the hook-and-line, trawl, pot, or jig sector allocations that is determined by NMFS as likely to go unharvested by a sector may be reallocated to other sectors for harvest during the remainder of the fishing year consistent with the factors set forth in regulation.

Pursuant to § 679.20(a)(12)(i)(A) and (B), a portion of the annual Pacific cod TACs in the Western and Central GOA will be allocated to vessels with a Federal fisheries permit that use jig gear before the TACs are apportioned among other non-jig sectors. In accordance with the FMP, the annual jig sector allocations may increase to up to 6 percent of the annual Western and Central GOA Pacific cod TACs, depending on the annual performance of the jig sector (see table 1 of amendment 83 to the FMP for a detailed discussion of the jig sector allocation process (76 FR 74670, December 1, 2011)). Jig sector allocation increases are established for a minimum of 2 years.

NMFS has evaluated the historical harvest performance of the jig sector in the Western and Central GOA and is proposing the 2025 and 2026 Pacific cod apportionments to this sector based on its historical harvest performance through 2024. For 2025 and 2026, NMFS proposes that the jig sector receive 3.5 percent of the annual Pacific cod TAC in the Western GOA. The 2025 and 2026 allocation consists of a base allocation of 1.5 percent of the Western GOA Pacific cod TAC and a harvest performance increase of 2 percent based on prior harvest performance. If the jig sector does not reach 90 percent of its Western GOA Pacific cod allocation for the 2024 fishing year, which appears likely based on catch through October 2024, the prior harvest performance increase of 2 percent would be maintained because allocation increases are established for a minimum of 2 years. For 2025 and 2026, NMFS also proposes that the jig sector receive 3 percent of the annual Pacific cod TAC in the Central GOA. The 2025 and 2026 allocation consists of a base allocation of 1 percent and a harvest performance increase of 2 percent based on harvest performance through 2024 because the jig sector did reach 90 percent of its Central GOA Pacific cod allocation for the 2024 fishing year. The Pacific cod jig allocations, catch, and percent allocation changes are listed in table 3.

NMFS will re-evaluate the annual 2024 harvest performance of the jig sector in the Western and Central GOA when the 2024 fishing year is complete to determine whether to change the jig sector allocations proposed by this action in conjunction with the final 2025 and 2026 harvest specifications. The current catch through October 2024 by the Central GOA jig sector indicates that the Pacific cod allocation percentage for this sector will increase by 1 percent in the Central GOA. However, based on catch through October 2024, an increase is unlikely for the jig sector in the Western GOA. Table 4 lists the seasonal apportionments and allocations of the proposed 2025 and 2026 Pacific cod TACs.