Federal Register / Vol. 88, No. 176 / Wednesday, September 13, 2023 / Proposed Rules 62711 

(b) Affected ADs 

None. 

(c) Applicability 

This AD applies to MHI RJ Aviation ULC 

(Type Certificate previously held by 

Bombardier, Inc.) airplanes, certificated in 

any category, identified in paragraphs (c)(1) 

through (3) of this AD. 

(1) Model CL–600–2C10 (Regional Jet 

Series 700, 701 & 702) and CL–600–2C11 

(Regional Jet Series 550) airplanes, serial 

numbers (S/N) 10001 through 10348 

inclusive. 

(2) Model CL–600–2D15 (Regional Jet 

Series 705) and CL–600–2D24 (Regional Jet 

Series 900) airplanes, S/N 15001 through 

15499 inclusive. 

(3) Model CL–600–2E25 (Regional Jet 

Series 1000) airplanes, S/N 19001 through 

19064 inclusive. 

(d) Subject 

Air Transport Association (ATA) of 

America Code: 25, Equipment/Furnishings. 

(e) Unsafe Condition 

This AD was prompted by a report of a 

passenger seat Y-belt (lap-belt) re-installed in 

the wrong orientation, due to an incorrect 

maintenance manual. The FAA is issuing this 

AD to detect and address Y-belts that are 

incorrectly installed. The unsafe condition, if 

not addressed, could result in passenger 

injury due to head impact, on the front 

monument during an emergency landing. 

(f) Compliance 

Comply with this AD within the 

compliance times specified, unless already 

done. 

(g) Requirements 

Except as specified in paragraph (h) of this 

AD: Within 24 months after the effective date 

of this AD, inspect each Y-belt for correct 

installation and damage and, if any incorrect 

installation or damage is found, within 24 

months after the effective date of this AD, do 

all applicable corrective actions, in 

accordance with paragraph B, ‘‘Procedure,’’ 

of the Accomplishment Instructions of MHI 

RJ Service Bulletin 670BA–25–135, Revision 

B, dated November 25, 2022. For this AD, 

damage includes dents or misshapen hooks 

that attach the belt to the seat. 

Note 1 to paragraph (g): Y-belts are also 

known as lap belts. 

(h) Exceptions to Service Information 

Where paragraph B, ‘‘Procedure,’’ of the 

Accomplishment Instructions of MHI RJ 

Service Bulletin 670BA–25–135, Revision B, 

dated November 25, 2022, specifies to ‘‘refer 

to AMM’’ replace those words with ‘‘in 

accordance with AMM.’’ 

(i) Maintenance Task Prohibition 

As of the effective date of this AD, it is 

prohibited to use MHI RJ Aviation ULC 

Aircraft Maintenance Manual (AMM) task 

25–21–04–400–801, revision 69 or earlier. 

(j) Credit for Previous Actions 

This paragraph provides credit for actions 

required by paragraph (g) of this AD, if those 

actions were performed before the effective 

date of this AD using the service information 

identified in paragraph (j)(1) or (2) of this AD, 

provided the actions were done using MHI RJ 

AMM Revision 70, dated May 25, 2022, or 

Revision 71, dated December 16, 2022. 

(1) MHI RJ Service Bulletin 670BA–25– 

135, dated June 1, 2022. 

(2) MHI RJ Service Bulletin 670BA–25– 

135, Revision A, dated August 30, 2022. 

(k) Additional AD Provisions 

The following provisions also apply to this 

AD. 

(1) Alternative Methods of Compliance 

(AMOCs): The Manager, International 

Validation Branch, FAA, has the authority to 

approve AMOCs for this AD, if requested 

using the procedures found in 14 CFR 39.19. 

In accordance with 14 CFR 39.19, send your 

request to your principal inspector or 

responsible Flight Standards Office, as 

appropriate. If sending information directly 

to the Manager of the International 

Validation Branch, mail it to ATTN: Program 

Manager, Continuing Operational Safety, at 

the address identified in paragraph (l)(2) of 

this AD or email to: 9-AVS-AIR-730-AMOC@

faa.gov. If mailing information, also submit 

information by email. Before using any 

approved AMOC, notify your appropriate 

principal inspector, or lacking a principal 

inspector, the manager of the responsible 

Flight Standards Office. 

(2) Contacting the Manufacturer: For any 

requirement in this AD to obtain instructions 

from a manufacturer, the instructions must 

be accomplished using a method approved 

by the Manager, International Validation 

Branch, FAA; or Transport Canada or MHI RJ 

Aviation ULC’s Transport Canada Design 

Approval Organization (DAO). If approved by 

the DAO, the approval must include the 

DAO-authorized signature. 

(l) Additional Information 

(1) Refer to Transport Canada AD CF– 

2023–10, dated February 17, 2023, for related 

information. This Transport Canada AD may 

be found in the AD docket at regulations.gov 

under Docket No. FAA–2023–1823. 

(2) For more information about this AD, 

contact Fatin Saumik, Aviation Safety 

Engineer, FAA, 1600 Stewart Avenue, Suite 

410, Westbury, NY 11590; telephone (516) 

228–7300; email: 9-avs-nyaco-cos@faa.gov. 

(3) Service information identified in this 

AD that is not incorporated by reference is 

available at the addresses specified in 

paragraphs (m)(3) and (4) of this AD. 

(m) Material Incorporated by Reference 

(1) The Director of the Federal Register 

approved the incorporation by reference 

(IBR) of the service information listed in this 

paragraph under 5 U.S.C. 552(a) and 1 CFR 

part 51. 

(2) You must use this service information 

as applicable to do the actions required by 

this AD, unless the AD specifies otherwise. 

(i) MHI RJ Service Bulletin 670BA–25–135, 

Revision B, dated November 25, 2022. 

(ii) [Reserved] 

(3) For MHI RJ Aviation ULC service 

information identified in this AD, contact 

MHI RJ Aviation Group, Customer Response 

Center, 3655 Ave. des Grandes-Tourelles, 

Suite 110, Boisbriand, Que ́bec J7H 0E2 

Canada; North America toll-free telephone 

833–990–7272 or direct-dial telephone 450– 

990–7272; fax 514–855–8501; email thd.crj@

mhirj.com; website mhirj.com. 

(4) You may view this service information 

at the FAA, Airworthiness Products Section, 

Operational Safety Branch, 2200 South 216th 

St., Des Moines, WA. For information on the 

availability of this material at the FAA, call 

206–231–3195. 

(5) You may view this service information 

that is incorporated by reference at the 

National Archives and Records 

Administration (NARA). For information on 

the availability of this material at NARA, 

email: fr.inspection@nara.gov, or go to: 

www.archives.gov/federal-register/cfr/ibrlocations.html. 

Issued on September 7, 2023. 

Ross Landes, 

Deputy Director for Regulatory Operations, 

Compliance & Airworthiness Division, 

Aircraft Certification Service. 

[FR Doc. 2023–19673 Filed 9–12–23; 8:45 am] 

BILLING CODE 4910–13–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 63 

[EPA–HQ–OAR–2022–0441; FRL–8673–02– 

OAR] 

RIN 2060–AV47 

Regulatory Requirements for New HAP 

Additions 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The U.S. Environmental 

Protection Agency (EPA) is proposing to 

amend the General Provisions for 

National Emission Standards for 

Hazardous Air Pollutants (NESHAP) to 

address applicability and compliance 

issues resulting from the addition of a 

compound to the list of hazardous air 

pollutants (HAP) under the Clean Air 

Act (CAA). This action focuses on issues 

related to newly applicable standards 

for sources that become major sources 

solely from the addition of a compound 

to the CAA HAP list. This action also 

includes a discussion of the impacts of 

a newly listed HAP on the federal 

operating permit program. 

DATES: 

Comments: Comments must be 

received on or before November 13, 

2023. 

Public hearing: If anyone contacts us 

requesting a public hearing on or before 

September 18, 2023, we will hold a 

virtual public hearing. See 

SUPPLEMENTARY INFORMATION for 


ddrumheller on DSK120RN23PROD with PROPOSALS1
62712 Federal Register / Vol. 88, No. 176 / Wednesday, September 13, 2023 / Proposed Rules 

information on requesting and 

registering for a public hearing. 

ADDRESSES: You may send comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2022–0441, by any of the 

following methods: 

• Federal eRulemaking Portal: 

https://www.regulations.gov/ (our 

preferred method). Follow the online 

instructions for submitting comments. 

• Email: a-and-r-docket@epa.gov. 

Include Docket ID No. EPA–HQ–OAR– 

2022–0441 in the subject line of the 

message. 

• Fax: (202) 566–9744. Attention 

Docket ID No. EPA–HQ–OAR–2022– 

0441. 

• Mail: U.S. Environmental 

Protection Agency, EPA Docket Center, 

Docket ID No. EPA–HQ–OAR–2022– 

0441, Mail Code 28221T, 1200 

Pennsylvania Avenue NW, Washington, 

DC 20460. 

• Hand Delivery/Courier: EPA Docket 

Center, WJC West Building, Room 3334, 

1301 Constitution Avenue NW, 

Washington, DC 20004. The Docket 

Center’s hours of operations are 8:30 

a.m.–4:30 p.m., Monday–Friday (except 

Federal Holidays). 

Instructions: All submissions received 

must include the Docket ID No. for this 

rulemaking. Comments received may be 

posted without change to https://

www.regulations.gov/, including any 

personal information provided. For 

detailed instructions on sending 

comments and additional information 

on the rulemaking process, see the 

SUPPLEMENTARY INFORMATION section of 

this document. 

FOR FURTHER INFORMATION CONTACT: For 

questions about this proposed action, 

contact U.S. EPA, Attn: Susan Miller, 

Mail Drop: D205–02, 109 T.W. 

Alexander Drive, P.O. Box 12055, RTP, 

North Carolina 27711; telephone 

number: (919) 541–2443; email address: 

miller.susan@epa.gov. For additional 

information, see https://www.epa.gov/ 

stationary-sources-air-pollution/ 

infrastructure-new-hap-additions. 

SUPPLEMENTARY INFORMATION: 

Participation in virtual public hearing. 

To request a virtual public hearing, 

contact the public hearing team at (888) 

372–8699 or by email at 

SPPDpublichearing@epa.gov. If 

requested, the virtual hearing will be 

held on October 4, 2023. The hearing 

will convene at 11:00 a.m. Eastern Time 

(ET) and will conclude at 3:00 p.m. ET. 

The EPA may close a session 15 minutes 

after the last pre-registered speaker has 

testified if there are no additional 

speakers. The EPA will announce 

further details at https://www.epa.gov/ 

stationary-sources-air-pollution/ 

infrastructure-new-hap-additions. 

If a public hearing is requested, the 

EPA will begin pre-registering speakers 

for the hearing no later than 1 business 

day after a request has been received. To 

register to speak at the virtual hearing, 

please use the online registration form 

available at https://www.epa.gov/ 

stationary-sources-air-pollution/ 

infrastructure-new-hap-additions or 

contact the public hearing team at (888) 

372–8699 or by email at 

SPPDpublichearing@epa.gov. The last 

day to pre-register to speak at the 

hearing will be September 25, 2023. 

Prior to the hearing, the EPA will post 

a general agenda that will list preregistered speakers at: https://

www.epa.gov/stationary-sources-airpollution/infrastructure-new-hapadditions. 

The EPA will make every effort to 

follow the schedule as closely as 

possible on the day of the hearing; 

however, please plan for the hearings to 

run either ahead of schedule or behind 

schedule. 

Each commenter will have 4 minutes 

to provide oral testimony. The EPA 

encourages commenters to submit the 

text of your oral testimony as written 

comments to the rulemaking docket. 

The EPA may ask clarifying questions 

during the oral presentations but will 

not respond to the presentations at that 

time. Written statements and supporting 

information submitted during the 

comment period will be considered 

with the same weight as oral testimony 

and supporting information presented at 

the public hearing. 

Please note that any updates made to 

any aspect of the hearing will be posted 

online at https://www.epa.gov/ 

stationary-sources-air-pollution/ 

infrastructure-new-hap-additions. While 

the EPA expects the hearing to go 

forward as set forth above, please 

monitor our website or contact the 

public hearing team at (888) 372–8699 

or by email at SPPDpublichearing@

epa.gov to determine if there are any 

updates. The EPA does not intend to 

publish a document in the Federal 

Register announcing updates. 

If you require the services of a 

translator or a special accommodation 

such as audio description, please preregister for the hearing with the public 

hearing team and describe your needs 

by September 20, 2023. The EPA may 

not be able to arrange accommodations 

without advanced notice. 

Docket. The EPA has established a 

docket for this rulemaking under Docket 

ID No. EPA–HQ–OAR–2022–0441. All 

documents in the docket are listed in 

https://www.regulations.gov/. Although 

listed, some information is not publicly 

available, e.g., Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the internet and will be publicly 

available only in hard copy. With the 

exception of such material, publicly 

available docket materials are available 

electronically in Regulations.gov or in 

hard copy at the EPA Docket Center, 

Room 3334, WJC West Building, 1301 

Constitution Avenue NW, Washington, 

DC. The Public Reading Room is open 

from 8:30 a.m. to 4:30 p.m., Monday 

through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1744, 

and the telephone number for the EPA 

Docket Center is (202) 566–1742. 

Instructions. Direct your comments to 

Docket ID No. EPA–HQ–OAR–2022– 

0441. The EPA’s policy is that all 

comments received will be included in 

the public docket without change and 

may be made available online at https:// 

www.regulations.gov/, including any 

personal information provided, unless 

the comment includes information 

claimed to be CBI or other information 

whose disclosure is restricted by statute. 

Do not submit electronically to https:// 

www.regulations.gov any information 

that you consider to be CBI or other 

information whose disclosure is 

restricted by statute. This type of 

information should be submitted as 

discussed below. 

The EPA may publish any comment 

received to its public docket. 

Multimedia submissions (audio, video, 

etc.) must be accompanied by a written 

comment. The written comment is 

considered the official comment and 

should include discussion of all points 

you wish to make. The EPA will 

generally not consider comments or 

comment contents located outside of the 

primary submission (i.e., on the Web, 

cloud, or other file sharing system). For 

additional submission methods, the full 

EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

https://www.epa.gov/dockets/ 

commenting-epa-dockets. 

The https://www.regulations.gov/ 

website allows you to submit your 

comment anonymously, which means 

the EPA will not know your identity or 

contact information unless you provide 

it in the body of your comment. If you 

send an email comment directly to the 

EPA without going through https://

www.regulations.gov/, your email 

address will be automatically captured 

and included as part of the comment 


ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 88, No. 176 / Wednesday, September 13, 2023 / Proposed Rules 62713 

that is placed in the public docket and 

made available on the internet. If you 

submit an electronic comment, the EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

digital storage media you submit. If the 

EPA cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, the EPA may not 

be able to consider your comment. 

Electronic files should not include 

special characters or any form of 

encryption and be free of any defects or 

viruses. For additional information 

about the EPA’s public docket, visit the 

EPA Docket Center homepage at https:// 

www.epa.gov/dockets. 

Submitting CBI. Do not submit 

information containing CBI to the EPA 

through https://www.regulations.gov/. 

Clearly mark the part or all of the 

information that you claim to be CBI. 

For CBI information on any digital 

storage media that you mail to the EPA, 

note the docket ID, mark the outside of 

the digital storage media as CBI and 

identify electronically within the digital 

storage media the specific information 

that is claimed as CBI. In addition to 

one complete version of the comments 

that includes information claimed as 

CBI, you must submit a copy of the 

comments that does not contain the 

information claimed as CBI directly to 

the public docket through the 

procedures outlined in the Instructions 

section of this document. If you submit 

any digital storage media that does not 

contain CBI, mark the outside of the 

digital storage media clearly that it does 

not contain CBI and note the docket ID. 

Information not marked as CBI will be 

included in the public docket and the 

EPA’s electronic public docket without 

prior notice. Information marked as CBI 

will not be disclosed except in 

accordance with procedures set forth in 

40 Code of Federal Regulations (CFR) 

part 2. 

Our preferred method to receive CBI 

is for it to be transmitted electronically 

using email attachments, File Transfer 

Protocol (FTP), or other online file 

sharing services (e.g., Dropbox, 

OneDrive, Google Drive). Electronic 

submissions must be transmitted 

directly to the OAQPS CBI Office at the 

email address oaqpscbi@epa.gov, and as 

described above, should include clear 

CBI markings and note the docket ID. If 

assistance is needed with submitting 

large electronic files that exceed the file 

size limit for email attachments, and if 

you do not have your own file sharing 

service, please email oaqpscbi@epa.gov 

to request a file transfer link. If sending 

CBI information through the postal 

service, please send it to the following 

address: OAQPS Document Control 

Officer (C404–02), OAQPS, U.S. 

Environmental Protection Agency, 

Research Triangle Park, North Carolina 

27711, Attention Docket ID No. EPA– 

HQ–OAR–2018–0747. The mailed CBI 

material should be double wrapped and 

clearly marked. Any CBI markings 

should not show through the outer 

envelope. 

Preamble acronyms and 

abbreviations. Throughout this 

document the use of ‘‘we,’’ ‘‘us,’’ or 

‘‘our’’ is intended to refer to the EPA. 

We use multiple acronyms and terms in 

this preamble. While this list may not be 

exhaustive, to ease the reading of this 

preamble and for reference purposes, 

the EPA defines the following terms and 

acronyms here: 

1-BP 1-bromopropane 

ANPRM advanced notice of proposed 

rulemaking 

CAA Clean Air Act 

CBI Confidential Business Information 

CFR Code of Federal Regulations 

EPA Environmental Protection Agency 

HAP hazardous air pollutant(s) 

MACT maximum achievable control 

technology 

MSDL Major Source Due to Listing 

NESHAP national emission standards for 

hazardous air pollutants 

OMB Office of Management and Budget 

PRA Paperwork Reduction Act 

PTE potential to emit 

UMRA Unfunded Mandates Reform Act 

Organization of this document. The 

information in this preamble is 

organized as follows below. 

I. General Information 

A. What action is the Agency taking? 

B. Does this action apply to me? 

C. What is the statutory authority for this 

action? 

D. Where can I get a copy of this document 

and other related information? 

II. Basis for the Proposed Action 

A. What changes are we proposing? 

B. Are there any concurrent changes to 

Title V Programs in this action? 

C. What is our rationale for the proposed 

changes? 

1. Are newly listed HAP regulated under 

NESHAP promulgated before the 

effective date of the listing? 

2. When must a newly listed HAP be 

included in emission estimates and what 

are the potential regulatory implications? 

3. What standards apply to MSDL 

facilities? 

4. When does an MSDL facility have to be 

in compliance with new requirements? 

5. Are there any new notification 

requirements? 

III. Solicitation of Additional Comments 

A. Regulatory Changes 

B. Early Input on Future EPA Action to 

Integrate Newly Listed HAP Into the 

CAA Section 112 Program 

IV. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulations and 

Regulatory Review 

B. Paperwork Reduction Act (PRA) 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

(UMRA) 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination with Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children from Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

to Address Environmental Justice in 

Minority Populations and Low-Income 

Populations and Executive Order 14096: 

Revitalizing Our Nation’s Commitment 

to Environmental Justice for All 

I. General Information 

A. What action is the Agency taking? 

Section 112(b) of the CAA established 

a list of 189 hazardous air pollutants 

(HAP). This provision of the CAA also 

provides the EPA with the authority to 

modify the list. In response to a petition 

to the Administrator to list 1- 

bromopropane or 1-BP (also known as 

n-propyl bromide (nPB)), the EPA, for 

the first time, added a new HAP to the 

CAA section 112(b) HAP list (HAP list) 

on January 5, 2022. Based on this new 

addition to the HAP list, the EPA 

determined that there are several 

regulatory implications and issues that 

must be addressed to fully integrate a 

newly listed HAP into the existing CAA 

section 112 program. This rule, when 

finalized, will address the immediate 

regulatory effects of adding a pollutant 

to the HAP list. This proposal addresses 

three specific issues that we identified. 

The first issue is whether already 

promulgated National Emission 

Standards for Hazardous Air Pollutants 

(NESHAP) would apply to a newly 

listed HAP. For example, for a NESHAP 

with a limit for total HAP, owners or 

operators of sources that emit the newly 

listed HAP and are subject to the limit 

need to understand whether they must 

include the emissions of the newly 

listed HAP to determine whether the 

source meets that limit. The second 

issue is the consideration of the 

permitting implications for facilities 

that become major sources under CAA 

section 112 solely due to the addition of 

a new pollutant to the HAP list 

(hereinafter Major Source Due to Listing 

or ‘‘MSDL’’ facilities). The third issue 

for a MSDL facility that triggers the 

applicability of a major source NESHAP 

is the determination of the applicable 


ddrumheller on DSK120RN23PROD with PROPOSALS1
62714 Federal Register / Vol. 88, No. 176 / Wednesday, September 13, 2023 / Proposed Rules 

1 La. Envtl. Action Network v. Envtl. Prot. Agency, 

955 F.3d 1088, 1098 (D.C. Cir. 2020) (‘‘the Act[] 

specifie[s] processes for adding to or subtracting 

from the statutory list of hazardous air pollutants, 

and its direction to EPA [is] to act within 18 months 

on a petition to modify the list. 42 U.S.C. 

7412(b)(3)(A).’’) 

emission standards (in particular, 

whether the source is subject to the 

standards for new sources or existing 

sources) and the compliance deadlines 

for those newly applicable NESHAP 

requirements. 

The EPA is not proposing any changes 

to the part 70 regulations to address the 

addition of a new pollutant to the CAA 

section 112 HAP list as the current 

program appropriately covers these 

issues. However, after reviewing the 

existing NESHAP regulations, the EPA 

intends to clarify the applicability of 

previously promulgated NESHAP when 

the EPA adds a new pollutant to the 

HAP list by revising 40 CFR 63.64, 

subpart C. In addition, the EPA is 

proposing initial notifications, several 

alternatives to address applicable 

emission standards and compliance 

deadlines for MSDL facilities by 

revising 40 CFR, subpart A. 

This proposed rulemaking addresses 

the immediate compliance obligations 

for the regulated community following 

the addition of a new HAP. This is only 

one part of the overall program to 

incorporate a new HAP into the CAA 

section 112 regulatory framework. 

Future actions within individual 

NESHAP will address rule-specific 

issues, including identification of the 

sources that emit the new HAP; 

promulgation of standards, as 

warranted, that include the new HAP by 

either revising existing NESHAP 

standards or establishing new standards, 

as necessary; and identification of 

engagement and outreach needs with 

affected communities and other entities. 

The actions we are taking regarding 

section II. are pursuant to our authority 

under CAA section 112. We consider 

the regulatory provisions we are 

proposing under 40 CFR part 63, 

subpart A to be severable from the 

regulatory provisions being proposed 

under 40 CFR part 63, subpart C, as 

these are two separate regulatory 

requirements, each of which would 

operate independently from the other, 

when finalized. 

B. Does this action apply to me? 

Categories of entities potentially 

affected by this proposed action include 

sources that emit a pollutant that is 

added to the HAP list. As discussed in 

more detail in section IV. of this 

preamble the addition of a pollutant to 

the HAP list can, for those sources who 

emit that pollutant, change the source’s 

potential to emit (PTE) such that an area 

source may become a major source. This 

change to major source status has 

regulatory implications that may 

include CAA operating permitting 

obligations and applicability of one or 

more major source NESHAP. This 

proposed rule addresses these 

situations. 

C. What is the statutory authority for 

this action? 

The statutory authority for this action 

is provided by sections 112 and 301 of 

the CAA, as amended (42 U.S.C. 7401 et 

seq.). CAA section 112(a) provides 

‘‘Definitions’’ applicable to CAA section 

112. A major source of HAP is defined 

under CAA section 112(a) as any 

‘‘stationary source or group of stationary 

sources located within a contiguous area 

and under common control that emits or 

has the potential to emit considering 

controls, in the aggregate, 10 tons per 

year or more of any hazardous air 

pollutant or 25 tons per year or more of 

any combination of hazardous air 

pollutants.’’ Stationary sources of HAP 

that are not major sources are defined as 

‘‘area sources.’’ Section 112(b)(3)(A) of 

the CAA allows any person to petition 

the EPA to modify the CAA section 

112(b)(1) list of HAP by adding or 

deleting a substance.1 Section 112(d) of 

the CAA establishes the process for 

establishing national emissions 

standards for HAP, commonly referred 

to as NESHAP but also frequently 

referred to as either maximum 

achievable control technology (MACT) 

standards or generally available control 

technology (GACT) standards. Section 

112(i) of the CAA provides the schedule 

for compliance with emission standards. 

Collectively, these statutory provisions 

and the NESHAP General Provisions 

codified in 40 CFR part 63, subpart A, 

provide the framework for establishing 

emission standards and compliance 

timing for HAP regulation. These 

statutory provisions also provide the 

authority for the EPA to establish 

requirements to address the immediate 

regulatory effects when a pollutant is 

added to the HAP list. 

D. Where can I get a copy of this 

document and other related 

information? 

In addition to being available in the 

docket (Docket ID No. EPA–HQ–OAR– 

2022–0441), an electronic copy of this 

proposal is available on the internet. 

Following signature by the EPA 

Administrator, the EPA will post a copy 

of this proposed action at https://

www.epa.gov/stationary-sources-airpollution/infrastructure-new-hapadditions. Following publication in the 

Federal Register, the EPA will post the 

Federal Register version of the proposal 

and key documents at this same 

website. In addition, a copy of the 

redline/strikeout version of the 

regulatory language showing the 

possible edits needed to incorporate the 

proposed changes to 40 CFR part 63, 

subparts A and C is included in the 

docket for this action (Docket EPA–HQ– 

OAR–2022–0441). Following signature 

by the Administrator, the EPA also will 

post a copy of this document to https:// 

www.epa.gov/stationary-sources-airpollution/infrastructure-new-hapadditions. 

II. Basis for the Proposed Action 

In the 1990 CAA Amendments, 

Congress established a list of HAP. 

These HAP are associated with a wide 

variety of adverse health effects, 

including, but not limited to cancer, 

neurological effects, reproductive 

effects, and developmental effects. The 

health effects associated with various 

HAP differ depending upon the toxicity 

of the individual HAP and the 

circumstances of exposure, such as the 

amount of chemical present, the length 

of time a person is exposed and the 

stage of life at which the person is 

exposed. Prior to the 1990 CAA 

Amendments, the EPA was required to 

list HAP for regulation under a risk- and 

health-based approach, which called for 

a conclusion that a HAP could ‘‘cause 

or contribute to, an increase in 

mortality, an increase in serious 

irreversible, or incapacitating reversible 

illness.’’ CAA section 112(a)(1), Public 

Law 91–604, 84 Stat. 1676, 1685 (1970). 

This approach proved unsatisfactory in 

achieving the goal of improved public 

health. In the 1990 CAA Amendments, 

Congress dispensed with this provision, 

listed 189 HAP in CAA section 112(b)(1) 

for regulation under CAA section 

112(d), and provided for modifications 

of the HAP list either by petition or on 

the Administrator’s determination 

under CAA sections 112(b)(3)(A) and 

(B). 

As relevant here, in CAA section 

112(b)(3), Congress provided that any 

person may petition the Administrator 

to modify the list of HAP by adding or 

deleting a pollutant. On January 5, 2022, 

the EPA published a final rule that 

added 1–BP to the CAA HAP list, with 

an effective date of February 4, 2022 (87 

FR 393). This addition came as a result 

of the EPA’s determination that the 

petition we received requesting that we 

list 1–BP as a HAP provided adequate 

data to support that 1–BP is an air 

pollutant and that emissions, ambient 

concentrations, bioaccumulation or 


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2 82 FR 2354 at 2356 (January 9, 2017). 

deposition of 1–BP are known to cause 

or may reasonably be anticipated to 

cause adverse effects to human health or 

adverse environmental effects. Before 

publishing the final rule, EPA published 

a draft notice of its rationale for granting 

the petition.2 (American Forest and 

Paper Ass’n v. E.P.A, 294 F.3d 113, 117 

n.3 (D.C. Cir. 2002) (‘‘Section 112(b) 

does not contemplate a formal 

rulemaking and is not among the 

sections enumerated in section 307(d)(1) 

(although other subsections of section 

112 are included there).’’). This was the 

first time that a HAP was added to the 

HAP list that Congress created in 1990. 

While this was the first action to add a 

HAP to the list, the EPA is preparing for 

additional future listings. These listings 

could come from public petitions, as 

allowed by CAA section 112(b)(3), 

through action taken by the 

Administrator under CAA section 

112(b)(2) of the CAA, or through actions 

or directives from Congress. 

Prior to listing 1–BP as a HAP, the 

EPA evaluated whether any regulatory 

changes were warranted to the NESHAP 

program to ensure the effective and 

efficient implementation of any 

requirements stemming from the 

addition of a new pollutant to the HAP 

list. As part of this review, the EPA 

published an advanced notice of 

proposed rulemaking (ANPRM) on June 

11, 2021, that sought information about 

potential NESHAP regulatory 

requirements resulting from the listing 

of the first new HAP, 1–BP, as well as 

other potential implications of the 

listing of any future HAP (86 FR 31225). 

Based on the EPA’s review and the 

public comments received on the 

ANPRM, the EPA determined that there 

are several regulatory impacts that could 

ensue when a pollutant is added to the 

HAP list. As described in this 

document, the EPA considered each of 

these impacts. In some cases, the 

existing regulatory provisions were 

sufficient to ensure effective and 

efficient implementation of the newly 

listed HAP. In other cases, the EPA 

determined that the regulations did not 

adequately address the issues that arise 

when a pollutant is added to the HAP 

list. Therefore, for those instances, the 

EPA is proposing in this action 

regulatory language to ensure the 

effective and efficient implementation 

of a newly listed HAP. The EPA 

requests comments on whether 

additional changes are needed to fully 

and clearly implement provisions 

related to a new HAP listing. 

A. What changes are we proposing? 

The EPA evaluated several potential 

issues related to listing a new HAP. We 

reviewed whether a new HAP listing 

has any impact on NESHAP 

promulgated before the new HAP was 

added to the list. As discussed below, 

the EPA concluded that the statute does 

not support a new HAP being regulated 

by such a NESHAP unless and until the 

EPA first evaluates the specific HAP for 

regulation under CAA section 112 and 

promulgates standards that include the 

new HAP. In this action, the EPA is 

proposing language to be added to 40 

CFR part 63, subpart C to clarify this 

conclusion. 

Another question that arose was the 

period of time allowed for a source to 

include the newly listed HAP in the 

source’s PTE calculation. Based on the 

existing language in CAA section 112 

and the NESHAP General Provisions (40 

CFR part 63, subpart A), the EPA 

determined that a source must include 

the new HAP in the source’s PTE 

calculation on the effective date of the 

listing of the new HAP. This requires 

including the new HAP in the 

evaluation of whether the facility is a 

major source of HAP, or an area source 

based on the source’s PTE calculation. 

The addition of the emissions of a 

newly listed HAP in the calculations of 

the PTE for a facility could change the 

facility status from an area source to a 

major source per the major and area 

source definitions in CAA section 112. 

If this occurs, the MSDL facility will 

face new permitting requirements. In 

addition, the MSDL facility will need to 

evaluate whether, due to its major 

source status, any of its existing 

emission units are subject to one or 

more NESHAP that are applicable to 

emission units located at major sources. 

For example, in addition to evaluating 

the NESHAP applicable to the specific 

industry, the MSDL facility will need to 

evaluate for purposes of applicability 

NESHAP that regulate multiple 

industrial sections such as NESHAP for 

industrial boilers or reciprocating 

engines. If applicable NESHAP are 

identified, the facility would need to 

evaluate the requirements within each 

applicable NESHAP and determine 

compliance requirements. Based on the 

rationale discussed in section IV.D., this 

action proposes regulatory language to 

the NESHAP General Provisions to 

clarify both the applicability and 

compliance timelines of newly triggered 

NESHAP requirements for MSDL 

facilities. 

The EPA also evaluated whether there 

should be any notification requirements 

for facilities that emit a newly listed 

HAP, including requirements for the 

facility to notify nearby communities. 

As discussed in section II.B., a facility 

already operating under a title V 

operating permit that triggers 

applicability of any new NESHAP 

requirements as it becomes a major 

source (i.e., MSDL) may need to apply 

to modify its permit to include such 

new applicable NESHAP requirements 

in their permit. MSDL facilities seeking 

an operating permit for the first time 

would need to modify or submit a 

permit application that addresses all 

applicable requirements consistent with 

the permitting authority’s program. See 

40 CFR 70.3(c)(1) and 70.2. A facility 

that becomes newly subject to a major 

source NESHAP would also need to 

submit the initial notification required 

by the specific applicable NESHAP. 

This action proposes that initial 

notifications under 40 CFR part 63, 

subpart A require some minimal 

additional information from sources 

becoming major due to the inclusion of 

a newly listed HAP in emission 

calculations. 

B. Are there any concurrent changes to 

Title V Programs in this action? 

Section 502(d)(l) of the CAA, 42 

U.S.C. paragraph 766la(d)(1), requires 

each state to develop and submit to the 

EPA an operating permit program to 

meet the requirements of title V of the 

CAA and the EPA’s implementing 

regulations at 40 CFR part 70 

(hereinafter ‘‘title V’’). All major 

stationary sources of air pollution and 

certain other non-major sources are 

required to apply for and operate in 

accordance with title V operating 

permits that include emission 

limitations and other conditions as 

necessary to assure compliance with 

applicable requirements of the CAA, 

including the requirements of the 

applicable implementation plan. 42 

U.S.C. paragraphs 7661a(a), 7661b. 

When a pollutant is added to the HAP 

list, sources that have the potential to 

emit the new HAP must include the 

HAP in calculating the source’s 

potential to emit beginning on the 

effective date of the listing of the new 

HAP. The inclusion of a new HAP in the 

source’s PTE can result in a change in 

classification of the source from area 

source to major source. A source whose 

classification changes solely due to the 

addition of a HAP to the HAP list (i.e., 

MSDL) will need to determine what, if 

any, future permitting action must be 

taken. 

Since MSDL facilities are, by 

definition, not major HAP sources 

before the HAP listing action, they 

would be operating as a non-major HAP 


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3 86 FR 31225. 

4 87 FR 395. 

5See also Util. Air Regul. Grp. v. E.P.A., No. 01– 

1074, 2001 WL 936363, at *1 (D.C. Cir. July 26, 

2001)(dismissing challenge to listing of coal- and 

oil-fired electric utility steam generating units as a 

source category under Section 112(c) for lack of 

jurisdiction). ‘‘Section 112(e)(4) of the Clean Air Act 

provides that judicial review of the listing of a 

source category under section 112(c) of the Act is 

not available until after emission standards are 

issued. See 42 U.S.C. 7412(e)(4).’’ 

source under a permit or other 

authorization. As a non-major (e.g., area, 

synthetic area) HAP source, the facility 

may have a source specific permit, but 

could also be operating under a general 

permit or registration permit. Those 

MSDL facilities that wish to retain their 

non-major status will need to consider 

the newly listed HAP when they seek to 

reduce their PTE HAP and (unless they 

opt to become true area for HAP) will 

need to request enforceable permit 

terms sufficient to reduce the facility’s 

PTE to below HAP major source levels 

(i.e., 10 tons of any single HAP and 25 

tons of all HAP). Facilities should 

coordinate all changes in classification 

with their permitting authority. 

If an MSDL facility does not elect to 

reduce its HAP emissions or PTE to 

maintain its area source status, as a 

major source it would be subject to the 

obligation to obtain a title V operating 

permit. Under the title V operating 

permit program, the regulations provide 

that ‘‘[a] timely application for a source 

applying for a part 70 permit for the first 

time is one that is submitted within 12 

months after the source becomes subject 

to the permit program or on or before 

such earlier date as the permitting 

authority may establish.’’ 40 CFR 

70.5(a)(1)(i). Because permitting 

authorities can establish more stringent 

deadlines than 12 months, MSDL 

facilities should check with their 

appropriate title V permitting authority 

to determine when a timely part 70 

application is required. 

The EPA is not proposing changes to 

the title V program or regulations; 

however, some state, local, and tribal 

title V programs may need to initiate a 

conforming program revision to update 

their implementing regulations, e.g., to 

include newly listed HAP in their HAP 

definition if their current regulations do 

not include newly listed HAP. The EPA 

encourages state, local, and tribal 

programs to evaluate whether any 

regulatory changes are needed to their 

rules to implement newly listed HAP 

under their approved program and those 

programs should consult with their 

respective EPA regional permitting 

contact for the program if they have 

questions. State, local, and tribal 

programs must keep the EPA apprised 

of regulatory changes they believe are 

needed to their approved part 70. 40 

CFR 70.4(i). The EPA has determined 

that the current regulations for state 

programs (i.e., 40 CFR part 70) and the 

implementing regulations for federal 

operating permits (40 CFR part 71) do 

not need to be revised concurrently with 

this action because these regulations 

address permitting requirements in 

agreement with title V of the CAA, 

including permitting prompted when 

new HAP are listed. In particular, 40 

CFR 70.3 and 70.2, require that a state 

program must provide for permitting of, 

among other major sources, a ‘‘major 

source under section 112 of the Act’’ 

including those with potential to emit a 

HAP or multiple HAP ‘‘which has been 

listed pursuant to section 112(b) of the 

Act’’ above major source thresholds. 

States and some tribes implement title 

V permitting under their EPA approved 

programs for sources in their 

jurisdictions. For sources subject to the 

federal operating permits program 

implemented by the EPA, 40 CFR part 

71 includes similar applicability 

provisions (see e.g., 40 CFR 71.3 and 

71.2) inclusive of major sources due to 

listing and other provisions required for 

implementing permitting requirements 

for covered sources. The EPA requests 

comments on the determination that no 

edits are required to the title V program 

for this purpose. 

C. What is our rationale for the 

proposed changes? 

This section presents the EPA’s 

proposed rationale for the proposed 

changes to the NESHAP General 

Provisions (40 CFR part 63, subpart A) 

and our proposed conclusions regarding 

key issues and questions related to 

listing of new HAP. The issues and 

questions, along with our proposed 

conclusions and rationale, are discussed 

individually below. 

1. Are newly listed HAP regulated 

under NESHAP promulgated before the 

effective date of the listing? 

In the June 11, 2021, ANPRM 

addressing the addition of 1–BP to the 

HAP list, the EPA raised the question of 

whether an existing NESHAP should 

apply to a newly listed HAP on the 

effective date of the HAP listing. The 

ANPRM solicited data and comments on 

the potential regulatory impacts of the 

addition of a HAP to the HAP list.3

Because this was the first time the 

EPA was adding a pollutant to the HAP 

list, the ANPRM discussed several 

potential issues that could result from 

the addition of a pollutant to the CAA 

section 112 HAP list. One question the 

EPA raised in the ANPRM was whether 

a newly listed HAP is regulated under 

any NESHAP that is in existence on the 

effective date of the newly listed HAP. 

In the ANPRM, the EPA more fully 

discussed this question and provided an 

example of numeric limits in coating 

rules that are often based on a limitation 

on the amount of organic HAP per unit. 

The example was whether the addition 

of new pollutant to the HAP list could 

require counting emissions of the new 

HAP in compliance calculations for 

many NESHAP for coating operations. 

This is because in most instances these 

coatings NESHAP typically define HAP 

by a direct reference to the HAP list 

published in the 1990 CAA and as 

modified pursuant to section 112(b). We 

noted that any modifications to the HAP 

list are included in 40 CFR part 63, 

subpart C. In the ANPRM, the EPA 

requested comment on whether a newly 

listed HAP should be regulated under 

previously existing NESHAP. 

On January 5, 2022, the EPA 

published a final rule that added 1–BP 

to the HAP list (87 FR 393). Based on 

our consideration of the comments on 

the ANPRM and the EPA’s own review 

of statutory requirements, the EPA 

concluded that a newly listed HAP is 

not regulated under existing NESHAP 

and stated that the final rule would 

‘‘have no direct immediate impacts 

under 40 CFR part 63 on emissions of 

1–BP.’’ 4

The conclusion that existing NESHAP 

do not regulate a newly listed HAP is 

consistent with CAA section 112. First, 

CAA section 112(e)(4) states that ‘‘no 

action of the Administrator adding a 

pollutant to the list under subsection (b) 

or listing a source category or 

subcategory under subsection 112(c) 

shall be a final agency action subject to 

judicial review, except that any such 

action may be reviewed under such 

section 7607 [section 307] of this title 

when the Administrator issues emission 

standards for such pollutant or 

category.’’ This language, by 

establishing two distinct steps, supports 

the EPA’s conclusion that previously 

promulgated NESHAP do not regulate 

newly listed HAP.5 Rather it is only 

after the EPA establishes new standards 

or revises previous standards to include 

the newly listed HAP (for instance, 

adding a newly listed organic HAP to a 

standard that covers total organic HAP) 

that the listing of a new HAP is subject 

to review. 

Second, having listed the new HAP 

using the process in CAA section 112(b), 

CAA section 112(d) sets out prescriptive 

procedures for establishing emissions 

standards for major sources. These 

statutory procedures include that a 


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6U.S. Sugar Corp. v. EPA, 830 F.3d 579 (D.C. Cir. 

2016) (‘‘EPA’s pollutant-by-pollutant approach [to 

standard setting] is a reasonable interpretation and 

application of the statute;’’); National Lime 

Association v. EPA, 233 F. 3d 625, 634 (D.C. Cir. 

2000). (EPA must set standards under section 

112(d) for each listed HAP. EPA has a ‘‘clear 

statutory obligation to set emissions standards for 

each listed HAP.’’). 

7Cement Kiln Recycling Coalition v. EPA, 255 

F.3d at 86 (‘‘EPA may not deviate from section 

7413(d)(3)’s requirement that floors reflect what the 

best performers actually achieve by claiming that 

floors must be achievable by all sources using 

MACT technology.’’). 

8 40 CFR 63.2. 

9 ‘‘In the context of the CAA, ‘any’ has an 

expansive meaning that is, ‘one or some 

indiscriminately of whatever kind.’ ’’ New York v. 

EPA, 443 F.3d 880, 885 (D.C. Cir. 2006)(citations 

omitted). 

standard must be established for each 

HAP—a process that cannot occur until 

the EPA gathers sufficient information 

about which sources emit the HAP and 

the emission rate of the HAP.6

Moreover, CAA section 112(d) requires 

that the MACT floor be based on the 

emission level actually achieved by the 

best performing sources.7 As part of the 

MACT determination, we must also 

evaluate whether options more stringent 

than the floor are justified under the 

statute. This task thus requires not only 

the emissions information of the new 

HAP from sources, but a review of 

information related to the potential 

emission controls and systems of 

controls that are, or could be, employed 

to reduce the emissions of the newly 

listed HAP. Because the EPA did not 

consider a pollutant that was not a HAP 

at the time it established existing 

NESHAP, the statutory process for 

establishing a standard for the new HAP 

has not been followed; therefore, the 

conclusion that existing NESHAP do not 

regulate a newly listed HAP is 

consistent with the statute. 

In summary, the conclusion that a 

newly listed HAP is not regulated by 

any standards promulgated prior to the 

HAP being listed is consistent with this 

statutorily required and well-ordered 

process whereby under CAA section 

112(b) the EPA lists a new HAP; CAA 

section 112(d) requires the EPA to 

gather information (e.g., inventories and 

ranking of best performers) sufficient to 

establish new or revised standards for 

the newly listed HAP; and CAA section 

112(e) allows for review of the listing 

when the new or revised emission 

standards is finalized. 

The EPA is requesting comment on 

whether regulatory text should be 

included in either the NESHAP General 

Provisions, 40 CFR part 63, subpart A or 

in part 63, subpart C, where new HAP 

are listed, to make it clear that a new 

HAP is not regulated by a previously 

promulgated NESHAP until the 

NESHAP is reviewed and the inclusion 

of the new HAP is fully evaluated for 

regulation. A redline/strike out version 

of proposed regulatory language for the 

preferred options is included in the 

docket for this action. 

2. When must a newly listed HAP be 

included in emission estimates and 

what are the potential regulatory 

implications? 

While the emissions of a newly listed 

HAP are not regulated by NESHAP 

promulgated before the HAP was listed, 

the pollutant listed becomes a HAP on 

the effective date of the listing. On and 

after the effective date of the listing of 

a new HAP, it must be included in 

calculating the facility’s actual 

emissions and PTE for the purposes of 

determining whether a facility is a major 

source or area source under Part 63.8

This is because, under CAA section 

112(a)(1) a major source is ‘‘any 

stationary source or group of stationary 

sources . . . that emits or has the 

potential to emit considering controls, 

in the aggregate, 10 tpy or more of any 

hazardous air pollutant or 25 tpy or 

more of any combination of hazardous 

air pollutants.’’ 9 (Emphasis added) 

The inclusion of a new HAP could 

change a facility’s status from an area 

source to a major source of HAP. If the 

sole reason for a facility’s status change 

from area to major is the inclusion of the 

newly listed HAP, the facility would be 

considered a ‘‘major source due to 

listing’’ or ‘‘MSDL’’ facility. For the 

reasons discussed below MSDL 

facilities, as a result of becoming major 

on the effective date of the listing of a 

new HAP, would become subject to any 

applicable standards covering HAP 

other than the newly listed HAP in 

existing major source NESHAP. The 

EPA specifically requests comments and 

data on whether, as a result of the listing 

of a new HAP, there are other sources 

that are directly impacted by the listing 

of a new HAP. 

a. Permitting Impacts for Sources and 

Programs 

All major sources must operate in 

agreement with a title V operating 

permit. Consequently, upon listing of a 

new HAP, MSDL facilities will need to 

determine what, if any, future 

permitting action such as application for 

an initial title V operating permit or 

permit revision or an application for 

other type of permit must be taken. For 

example, a source with an individual 

PTE limit for HAP, issued in a minor 

source permit, would have to ensure the 

supporting data and calculations of 

actual HAP emissions used to verify the 

PTE limit account for newly listed HAP 

emissions. Any required permitting 

action depends on the individual 

situation as governed by the permitting 

authority rules; thus, sources are 

advised to coordinate these actions with 

the permitting authority with 

jurisdiction for the source. Facilities 

that wish to operate as area sources of 

HAP and avoid applicability of major 

source NESHAP requirements could do 

so at any time and must obtain legally 

and practically enforceable PTE HAP 

restrictions below major source levels 

available under their permitting 

authority programs. This does not 

include true area sources, which do not 

need enforceable PTE limits. 

However, if the MSDL facility does 

not wish to pursue non-major source 

status, as a major source of HAP they 

will be subject to the title V operating 

permit program. Under the title V 

operating permit program regulations 

‘‘A timely application for a source 

applying for a part 70 permit for the first 

time is one that is submitted within 12 

months after the source becomes subject 

to the permit program or on or before 

such earlier date as the permitting 

authority may establish.’’ 70.5(a)(1)(i). 

Because permitting authorities can 

establish different deadlines, MSDL 

facilities should check with their 

appropriate title V permitting authority 

to determine exactly when a timely Part 

70 application is required. 

The title V regulations are inclusive of 

all listed HAP; however, some state, 

local, and tribal title V programs may 

need to initiate a conforming program 

revision to update their implementing 

regulations, e.g., to include newly listed 

HAP in their HAP definition if their 

current regulations do not include 

newly listed HAP. The EPA encourages 

state, local, and tribal programs to 

evaluate whether any regulatory 

changes are needed to their rules to 

implement newly listed HAP under 

their approved program and those 

programs should consult with their 

respective regional permitting contact 

for the program if they have questions. 

State, local, and tribal programs must 

keep the EPA apprised of regulatory 

changes they believe are needed to their 

approved part 70 program. 40 CFR 

70.4(i). 

Also, the EPA is aware that some 

permitting authority programs for 

limiting PTE for categories of similar 

sources such as general permits, permits 

by rule, source registrations currently in 

use for limiting PTE HAP may not be 

authorized for newly listed HAP and 

may need revisions. The EPA 

encourages permitting authorities to 


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10 In particular, CAA section 112(d)(5) allows the 

EPA to set standards for area source categories 

based on ‘‘generally available control technology or 

management practices,’’ which may be less 

stringent than the standards required for major 

sources under sections 112(d) or 112(f). 

11See for example, National Emission Standards 

for Hazardous Air Pollutants for the Portland 

Cement Manufacturing Industry and Standards of 

Performance for Portland Cement Plants (78 FR 

10006, 10025; February 12, 2013). 

12See 85 FR 73854, 73867 (Nov. 19, 2020) 

(Revisions to 40 CFR part 63, subpart A to address 

the issue of compliance issues for sources that make 

the decision to increase their potential to emit and 

reclassify from area source status to major source 

status). 

13 In 1994 EPA first promulgated the NESHAP 

General Provisions, which are codified in 40 CFR 

part 63, subpart A, and which provide the general 

framework for establishing emission standards and 

compliance timing for HAP regulations (59 FR 

12408; March 16, 1994). 14CAA sections 112(a)(1); 40 CFR 63.2. 

review their programs for issuing PTE 

limits for HAP sources and ensure they 

have adequate regulatory authority as 

needed to implement legally and 

practicably enforceable PTE limits that 

include newly listed HAP. 

b. Part 63 NESHAP 

All sources that become MSDL 

facilities will need to evaluate whether 

any major source NESHAP apply to 

their operations. In some cases, there 

may be a transition from an area source 

NESHAP to a major source NESHAP for 

the same source category. For example, 

an MSDL facility may have been subject 

to the Boiler NESHAP for area sources 

prior to becoming an MSDL facility but 

would now become subject to the Boiler 

NESHAP for major sources. 

In addition to a larger number of 

potentially applicable rules, NESHAP 

for major sources tend to be more 

comprehensive than most area source 

NESHAP, covering more pollutants and 

emission sources and are generally at 

least as stringent as area source 

requirements due to differing 

requirements under the CAA.10 The 

EPA recognizes that there are some 

unique questions that arise for MSDL 

facilities when considering the 

application of a NESHAP that was 

developed before the MSDL facility 

became a major source. Two main 

questions that the EPA evaluated are: (1) 

what standards apply to MSDL facilities 

(whether new source or existing source 

standards apply to MSDL facilities)? and 

(2) what compliance time should be 

provided for the MSDL facilities? 

1. What standards apply to MSDL 

facilities? 

Section 112 of the CAA and its 

implementing regulations distinguish 

between ‘‘new source’’ and ‘‘existing 

source’’ for the purpose of both the 

stringency of the emission standard and 

the time allowed for compliance with 

applicable standards. Specifically, CAA 

section 112(a)(4) defines a new source 

as a source that commenced 

construction or reconstruction after the 

Administrator first proposes regulations 

under section 112, while CAA section 

112(a)(10) defines an existing source as 

any stationary source other than a new 

source. The EPA has also explained that 

the phrase ‘‘first proposes’’ in CAA 

section 112(a)(4) is somewhat 

ambiguous such that it could be viewed 

as referring to different dates in different 

circumstances. For example, it could be 

read as the first time the Agency 

proposes any standards for a source 

category, the first time the Agency 

proposes standards under a particular 

rulemaking record for a source category, 

or the first time the Agency proposes a 

particular standard.11 The 

determination of whether the standard 

that applies to a particular source is for 

‘‘new’’ or ‘‘existing’’ sources is also 

important to determining the 

compliance deadline. 

Current rules also address cases 

where, after the initial promulgation of 

a NESHAP, an area source makes the 

decision to increase its emissions such 

that it becomes a major source. 

Language is included in the NESHAP 

General Provisions at 40 CFR 63.6(b)(7) 

and (c)(5), as well as in many individual 

NESHAP, to address the consequences 

of this decision made by an individual 

facility. In this situation, the EPA has 

determined that the designation of ‘‘new 

source’’ and ‘‘existing source’’ should 

remain defined by the dates given in 

each individual NESHAP and that does 

not change when a source reclassifies 

from area to major source.12

However, the NESHAP General 

Provisions do not address the unique 

situation that arises when a new HAP is 

listed and an area source becomes a 

major source solely due to the addition 

of a new HAP when calculating the 

source’s PTE (i.e., MSDL facilities).13 In 

this action, the EPA is requesting 

comment on whether to amend the 

NESHAP General Provisions to 

specifically address this issue. In 

addressing this issue, the EPA has 

considered two alternatives: (1) as done 

with non-MSDL major sources facilities, 

determine whether an affected source 

was new or existing based on each 

specific NESHAP for MSDL facilities, or 

(2) designate all affected sources for 

newly applicable NESHAP at an MSDL 

facility to be existing affected sources. 

While the EPA is proposing the second 

option, i.e., all MSDL facilities should 

be considered existing sources, both 

alternatives are discussed below. 

Under the first alternative, an MSDL 

facility would continue to refer to each 

individual NESHAP and compare the 

date of construction of an affected 

source to the date an individual 

NESHAP was proposed. Under this 

approach, the determination of ‘‘existing 

source’’ and ‘‘new source’’ would be the 

same regardless of when a facility 

became major and regardless of how a 

facility became major (i.e., through their 

own action or through an EPA action of 

HAP listing). If the EPA were to finalize 

this alternative, no changes would be 

made to 40 CFR part 63, subpart A, 

§ 63.1 (Applicability). However, the EPA 

could provide a clarifying statement in 

the current regulatory text with respect 

to MSDL facilities. The EPA requests 

comments on whether such clarifying 

statements would be necessary or 

helpful. 

The EPA has some concerns about the 

potential impacts for MSDL facilities 

that would be considered new sources 

under this first alternative. These 

concerns center around (1) the lack of 

notice provided to the MSDL that it is 

becoming subject to major source 

requirements, and (2) the action that 

created the major source requirement 

was solely from the addition of a new 

HAP. 

A newly listed pollutant becomes a 

HAP on the effective date of the listing. 

As defined, a MSDL facility becomes a 

major source solely due to the EPA 

action to add a new HAP to the HAP 

list. This accounting is required because 

under CAA section 112(a)(1), a facility 

must include ‘‘any hazardous air 

pollutant’’ in calculating the potential to 

emit for the purposes of determining 

whether it is a major source under this 

section of the Act. Thus, on and after 

the effective date of the listing of a new 

HAP, a facility must include such HAP 

in the actual emissions and potential to 

emit calculations.14 Within each major 

source of HAP (defined at the facility 

level) there could be one or more 

affected sources, and where there are 

more than one affected source each one 

could be either a new or an existing 

source. Section 112(a)(4) of the CAA 

defines a new source as a source that 

commenced construction or 

reconstruction after the Administrator 

first proposes regulations under this 

section, while CAA section 112(a)(10) 

defines an existing source as any 

stationary source other than a new 

source. As previously noted above, 

‘‘first proposes’’ could be read to mean 

the first time the Agency proposes any 


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15See for example, National Emission Standards 

for Hazardous Air Pollutants for the Portland 

Cement Manufacturing Industry and Standards of 

Performance for Portland Cement Plants (78 FR 

10006, 10025; February 12, 2013). 

16For new sources, ‘‘the maximum degree of 

reduction in emissions that is deemed achievable 

. . . shall not be less stringent than the emission 

control that is achieved in practice by the best 

controlled similar source.’’ CAA section 112(d)(3). 

17 ‘‘It does not require increases in emissions or 

changes in the operation of previously existing 

facilities to be triggered. Since there is no threshold 

of emissions increase, it is not possible for an 

existing source adding new facilities to avoid being 

considered new by ‘netting out’ or reducing so that 

the increase is below some threshold of 

significance.’’ Id. 

18EPA also notes that the definition of a new 

affected source is made within each emission 

standard. When making the determination as to 

whether a new or revised emission limit warrants 

the re-designation of the new affected source date, 

the EPA must consider several factors. 

19American Forest and Paper Ass’n v. EPA, 294 

F.3d 113, 117 n.3 (D.C. Cir. 2002) (‘‘CAA section 

307(d)(9), however, by its terms applies only to 

‘rulemakings’ pursuant to the CAA sections 

enumerated in section 307(d)(1), 42 U.S.C. 

7607(d)(1). Section 112(b) does not contemplate a 

formal rulemaking and is not among the sections 

enumerated in section 307(d)(1) (although other 

subsections of section 112 are included there.’’). 

20 68 FR 28198, June 4, 1996. 

21CAA section 112(b)(3)(A) requires the 

Administrator to either grant or deny a petition 

within 18 months of the receipt of a complete 

petition by publishing a written explanation of the 

reasons for the Administrator’s decision. See for 

example 82 FR 2354, January 9, 2017 (draft notice 

of the rationale for granting petitions to add npropyl bromide to the HAP list); La. Envtl. Action 

Network v. Envtl. Prot. Agency, 955 F.3d 1088, 1098 

(D.C. Cir. 2020) (‘‘the Act[ ] specifie[s] processes for 

adding to or subtracting from the statutory list of 

hazardous air pollutants, and its direction to EPA 

[is] to act within 18 months on a petition to modify 

the list. 42 U.S.C. 7412(b)(3)(A).’’) 

22 ‘‘Section 112(e)(4) of the Clean Air Act 

provides that judicial review of the listing of a 

source category under section 112(c) of the Act is 

not available until after emission standards are 

issued. See 42 U.S.C. 7412(e)(4). This court 

therefore lacks jurisdiction at this time to review 

the determination of the Environmental Protection 

Agency (‘‘EPA’’) that regulation of coal- and oilfired electric utility steam generating units is 

appropriate and necessary, and that such units 

should be listed as a source category under section 

112(c).’’ See Util. Air Regul. Grp. v. E.P.A., No. 01– 

1074, 2001 WL 936363, at *1 (D.C. Cir. July 26, 

2001). See also, Conference Group, LLC v. Federal 

Communications Commission, 720 F.3d 957 (D.C. 

Cir. 2013). (Nonparty to adjudication lacks standing 

to challenge merits of adjudication). But see Teva 

Pharma. v. Sebelius, 595 F.3d 1303 (D.C. Cir. 2010) 

(Allowing challenge where there was imminent 

harm or injury from Agency decision). 

standards for a source category, the first 

time the Agency proposes standards 

under a particular rulemaking record for 

a source category, or the first time the 

Agency proposes a particular 

standard.15 Here, the EPA’s listing of a 

new HAP is not the proposal of 

standards under relevant statutory 

provisions, and as previously explained, 

existing NESHAP do not regulate a 

newly listed HAP. It also bears note that 

there is no specific period for 

promulgating standards for newly listed 

HAPs, under CAA section 112(b)(1). 

Additionally, the CAA distinction 

between new and existing sources is 

reasonably understood to be predicated 

on some basic principles, including that 

a new source can potentially be held to 

more stringent compliance requirements 

than existing ones. In some cases, new 

source requirements are based on the 

ability of these sources to design 

processes to accommodate air pollution 

control systems.16 The facility choosing 

to construct or reconstruct a new 

affected source can consider the 

applicable standards and other 

requirements in making both the 

technical and economic decisions that 

surround the evaluation to construct or 

not construct the emissions unit. 

Legislative history from the 1990 CAA 

Amendments also suggests that ‘‘the test 

of section 112(a)(4) as to whether a 

source is commencing construction or 

reconstruction is physical and 

economic, rather than emissions 

related.’’ S. Rep. No. 229, 101st Cong. 

1st Sess. 1989, 1990 U.S.C.C.A.N. at 

3385, 1989 WL 236970.17

In contrast, a MSDL facility is newly 

subject to standards that were published 

long before the HAP listing action that 

resulted in the facility exceeding the 

major source threshold. But when the 

facility was being constructed as an area 

source, the source had no reason to 

contemplate the applicability of major 

source NESHAP.18 As discussed above, 

notice of the requirements at the time 

that the facility is constructed or 

reconstructed is a key distinction 

between ‘‘new’’ and ‘‘existing’’ emission 

standards under CAA section 112 and 

the NESHAP regulations. This is 

because CAA section 112(a)(4) defines a 

new source as a source that commenced 

construction or reconstruction after the 

Administrator proposes regulations for 

the applicable source category. The 

notice of a proposed major source 

NESHAP allows a source to consider the 

proposed standard when considering 

the design of or constructing a 

potentially new affected emissions unit. 

Having this notice allows the source to 

alter the design to eliminate the 

emissions of the regulated HAP or alter 

the design of the emissions unit to 

ensure that when the emission unit 

commences operation it can meet the 

‘‘new’’ source limit. This is because a 

MSDL facility that was already 

operating when the EPA lists a new 

HAP is not aware at the time of 

construction or reconstruction that it 

would subsequently be subject to a 

major source NESHAP, since no 

standard applied at that time. Therefore, 

it could be more appropriate to treat 

such source as an existing source. 

Moreover, a listing action is not 

subject to the robust public notice and 

comment requirements provided in 

CAA section 307(d).19 The EPA 

acknowledges that the Agency could 

provide some degree of public notice 

before a new HAP is listed, with one or 

more documents in the Federal Register 

because ‘‘in most instances, even where 

there is no statutory requirement to take 

comment, the EPA solicits public 

comment on actions it is 

contemplating.’’ 20 But these documents 

would typically address the substantive 

requirements for listing a substance as a 

HAP and would likely provide little or 

no information on sources that would be 

impacted by the listing decision.21

Additionally, such notices would also 

have been published years after a 

facility constructed or reconstructed 

their affected source at an area source 

facility. Further, where the Agency lists 

a HAP in response to a petition, the 

Agency would be unable to impose 

compliance obligations for that HAP 

considering that not all affected sources 

were involved in the listing action and 

as such would be precluded from 

challenging the listing decision as 

specified by section 112(e)(4) until the 

Agency promulgates standards for the 

newly listed HAP.22

Further, not only is a MSDL facility 

not able to plan accordingly to meet the 

‘‘new’’ source standard, but there is also 

a possibility that the source, already in 

operation, cannot, as a technological 

matter, comply with the standard for 

new sources. For example, during the 

development of the NESHAP for 

Polyvinyl Chloride and Copolymers 

Production, the EPA acknowledged that 

due to the stringency difference between 

the new source and existing source 

standards that it might not be 

technically possible for an existing 

source to meet the new source standard. 

In the final rule the EPA modified the 

definition of existing source to ensure 

that existing sources were not subject to 

the new source standard, which was 

impossible for them to meet. See 77 FR 

22848 (April 17, 2002). 

Finally, unlike the situation where an 

area source becomes a major source (by 

increasing its HAP emissions or 

potential to emit), a MSDL facility 

becomes a major source due to EPA’s 

listing of a new HAP. As also previously 

explained, a MSDL facility has no direct 

notice as to the applicability of the 

major source NESHAP and more 

importantly as to the applicability of 

any ‘‘new’’ source standard for major 


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23Emissions standards ‘‘mean[s] a requirement 

established by the State or the Administrator which 

limits the quantity, rate, or concentration of 

emissions of air pollutants on a continuous basis, 

including any requirement relating to the operation 

or maintenance of a source to assure continuous 

emission reduction, and any design, equipment, 

work practice or operational standard promulgated 

under this chapter.’’ CAA section 302(k). 

24For new affected sources, CAA section 112(i) 

provides that compliance with standards 

promulgated under CAA section 112(d)(2) and (3) 

is on the effective date of the NESHAP or upon 

startup, whichever is later. 

25For existing sources, CAA section 112(i)(3) 

provides there shall be compliance ‘‘as 

expeditiously as practicable, but in no event later 

than 3 years after the effective date of such 

standard. . . .’’ (‘‘Section 112(i)(3)’s 3-year 

maximum compliance period applies generally to 

any emission standard . . . promulgated under 

[section 112].’’ Association of Battery Recyclers v. 

EPA, 716 F.3d 667, 672 (D.C. Cir. 2013) (brackets 

in original)). 

sources as contemplated under CAA 

section 112(a)(4). Therefore, the MSDL 

facility cannot develop plans to comply 

with the standard to which it was not 

subject before it becomes applicable and 

could potentially be in non-compliance 

immediately upon the effective date of 

the listing of the new HAP in the 

absence of any changes proposed in this 

action. This would mean that some 

rules, while not applicable to the facility 

when the rule was proposed, now apply 

due to the EPA listing action and 

through no action of the facility. 

Moreover, it is not the promulgation of 

emissions standards under relevant 

statutory provisions and precedent for 

the newly listed HAP that has resulted 

in a status change. Rather, it is the HAP 

listing itself. This would mean that 

some rules, while not applicable to the 

facility when the rule was proposed, 

now apply due to the EPA listing action 

and through no action of the facility. 

These concerns lead the EPA to also 

favor the alternative option where all 

newly impacted affected sources at 

MSDL facilities would be treated as 

existing sources. 

Under this preferred option, the EPA 

would treat affected sources at MSDL 

facilities as existing affected sources 

because affected sources at MSDL 

facilities that might otherwise be 

considered ‘‘new’’ under a NESHAPspecific evaluation are not new sources 

as contemplated under CAA section 

112(a)(4) in the circumstance where the 

source becomes a major source due to 

EPA’s listing of a new HAP. First, the 

increase in the facilities’ emissions or 

potential to emit that caused the facility 

to become a major source was caused 

solely by an EPA action to list a HAP 

and not based on any action by the 

facility to change its method of 

operation, add new equipment, or 

change any material throughput. 

Second, the facility was already 

operating the affected sources when the 

EPA’s listing action, which is not the 

promulgation of emissions standards 

under relevant statutory provisions and 

precedent, resulted in a status change.23

When considering the construction for 

these sources, the facility may have 

evaluated applicable requirements that 

would apply to them as a non-major 

source. Third, these sources were not 

afforded advance notice to tailor 

construction plans to meet the new 

source requirements for major sources, 

but instead would be required to 

develop a compliance strategy on 

already-constructed emission sources. 

In conclusion, the EPA has 

considered both options discussed 

above and is proposing that all affected 

facilities at MSDL facilities that become 

subject to major source requirements 

solely due to the listing of a new HAP 

should be considered existing sources. 

Under this option, regulatory language 

would be added to 40 CFR part 63, 

subpart A, § 63.1(c) applicability 

requirements and a definition of MSDL 

would be added to § 63.2. The EPA 

requests comments on all aspects of 

both alternatives presented above, as 

well as on the proposed selection of 

treating all MSDL facilities as existing 

sources. All significant comments 

received on issues related to effects of 

HAP listing on MSDL facilities during 

the public comment period will be 

considered. 

2. When does an MSDL facility have to 

be in compliance with new 

requirements? 

When an MSDL facility triggers 

existing source NESHAP requirements 

under our proposed approach described 

in section II.C.3., there is an additional 

question of the appropriate compliance 

date. Because the NESHAP of concern 

have already been promulgated, 

typically many years in the past, it is 

likely that most of the compliance dates 

will have passed for both existing and 

new affected sources. The EPA 

understands that a past compliance date 

would indicate that a facility would 

need to be in compliance on the day the 

NESHAP is triggered; in this case, the 

day the HAP listing is effective. The 

EPA does not view this outcome as 

necessarily the most practical 

conclusion flowing from the overall 

intent and reading of CAA section 112 

as well as rulemakings that implement 

CAA section 112. As this outcome can 

create significant, immediate 

compliance issues for facilities that have 

already been constructed, the EPA 

evaluated several options for 

establishing compliance dates for MSDL 

facilities. 

The General Provisions, 40 CFR part 

63, subpart A, include requirements for 

facilities that increase their emissions 

(or potential to emit) to major source 

levels. The provision in 40 CFR 63.6 

(b)(7) provides that new affected sources 

must comply with all requirements of a 

standard at start-up of the source.24 On 

the other hand, for existing sources, the 

provision in 40 CFR 63.6(c)(5) provides 

that a facility has the amount of time 

listed in a specific NESHAP for sources 

increasing emissions to major or 

‘‘equivalent to the compliance period 

specified in the relevant standard for 

existing sources in existence at the time 

the standard becomes effective.’’ 25

Several NESHAP include the provisions 

mentioned in 40 CFR 63.6(c)(5) for 

when an area source becomes a major 

source. Most, but not all, of these 

provisions tend to treat new sources 

very differently from existing sources, 

by providing time to come into 

compliance for existing affected sources 

that become major sources, but typically 

requiring immediate compliance for 

new sources that become major sources. 

The EPA reviewed these provisions 

for potential applicability to MSDL 

facility compliance times. The EPA 

determined that the current language in 

40 CFR 63.6(b)(7), 63.6(c)(5) and the 

area- to- major language in individual 

NESHAP were not developed with 

MSDL facilities in mind and are 

therefore not applicable to MSDL 

facilities. Therefore, the EPA is 

proposing that the NESHAP General 

Provisions at 40 CFR 63.6(d) be revised 

to address the compliance timing for 

MSDL facilities. As individual NESHAP 

are reviewed, the EPA can assess 

whether additional provisions 

addressing MSDL facilities are 

warranted. Any NESHAP-specific MSDL 

provision would supersede provisions 

promulgated in the General Provisions. 

The EPA is considering four possible 

approaches for establishing compliance 

schedules for MSDL facilities that 

trigger major source NESHAP: (a) 

Maintain the compliance deadlines in 

individual NESHAP, even past dates, 

and require all facilities to work with 

their regulatory authority to come into 

compliance; (b) Establish a compliance 

deadline consistent with time provided 

to existing sources under the applicable 

individual NESHAP; (c) Provide a single 

compliance timeline for MSDL facilities 

that have become subject to major 

source requirements, regardless of the 

times provided in the individual 

NESHAP; and (d) Provide compliance 


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26CAA section 112(b)(3)(A) merely calls for the 

Administrator to either grant or deny a petition 

within 18 months of the receipt of a complete 

petition by publishing a written explanation of the 

reasons for the Administrator’s decision. 

deadlines based on the types of 

emission limitations or requirements. 

Each of these options is discussed in 

more detail below. While the EPA is 

proposing to provide compliance 

deadlines based on the types of 

emission limitations or requirements 

(option d in this list), the EPA requests 

comments on each of the following 

options and may select any of these 

options in the final rule, depending on 

comments received and the EPA’s final 

analyses. 

a. Maintain Compliance Schedules in 

Individual NESHAP 

Under this alternative, the EPA would 

make no changes to the NESHAP 

General Provisions (40 CFR part 63, 

subpart A) and would instead allow 

compliance dates in the individual 

NESHAP to remain the applicable 

compliance dates. Under this approach 

an MSDL facility would likely be out of 

compliance with any major source 

NESHAP that applies on the effective 

date of the listing of a new HAP. This 

is because the majority of major source 

NESHAP have compliance dates that 

pre-date the effective date of the newly 

listed HAP. 

This approach would likely lead to 

the earliest requirements for emission 

reductions by MSDL facilities, as they 

may alter their operations or work 

practices to either minimize emissions 

or work with their regulatory authority 

to address their non-compliance status. 

Emission reduction will not include 

direct emission control requirements for 

the newly listed HAP, as the EPA must 

first promulgate standards for such 

HAP. It would, however, result in 

emissions reductions of other regulated 

HAP as the facility complies with the 

applicable NESHAP. As previously 

discussed, above, this approach is 

predicated on the assumption that 

facilities are aware of the EPA actions 

that may impact their CAA compliance 

status since pre-notice is provided by 

the EPA’s prior Federal Register 

documents on potential listings.26

b. Provide a Timeline Equivalent to the 

Time Provided for Initial Compliance 

Under this alternative, the EPA is 

considering whether the compliance 

time provided to MSDL sources for a 

specific NESHAP should be equivalent 

to the initial time provided to existing 

affected sources in that NESHAP. This 

approach would acknowledge the 

source category-specific evaluation of 

appropriate compliance time for the 

specific rule. 

The EPA reviewed numerous existing 

NESHAP and determined that the 

majority of NESHAP provided three 

years for existing sources to come into 

compliance with the standards. The 

specific justifications for allowing three 

years for existing sources to comply 

varied from NESHAP to NESHAP but 

were all predicated on a determination 

that three years was as expeditious as 

possible for those facilities. 

This option would call for the EPA to 

include in the NESHAP General 

Provisions regulatory language similar 

to existing language at 40 CFR 

63.6(c)(5). The regulatory language in 

the NESHAP General Provisions would 

provide MSDL facilities a ‘‘period of 

time to comply with the relevant 

emission standard that is equivalent to 

the compliance period specified in the 

relevant standard for existing sources’’ 

and would apply in the absence of any 

MSDL-specific language in individual 

NESHAP.’’ 

It should be noted that, at present, 

there are no MSDL-specific provisions 

in any individual NESHAP. Language 

currently in the General Provisions and 

NESHAP refers only to area sources that 

become major sources through a 

facility’s own action that causes an 

increase in emissions or in their 

potential to emit. If no MSDL-specific 

language is included in a specific 

NESHAP, then the time provided by the 

new MSDL language in the General 

Provision will dictate the requirements. 

As discussed in section II.C.3. (What 

Standards Apply to MSDL Facilities?), 

the EPA is proposing to define all 

affected sources at MSDL facilities as 

existing affected sources for the 

purposes of determining the applicable 

emission standards. If the EPA were to 

instead promulgate the option that 

would require some sources to meet the 

new source emission limits, the EPA is 

still proposing to provide time for all 

MSDL facilities to come into 

compliance under this option. In this 

proposal, the EPA is considering 

whether providing some amount of 

compliance time—as typically done for 

existing sources—is appropriate for all 

MSDL sources. Specifically, under this 

option, all MSDL sources (including 

new sources) would be provided a time 

period equivalent to the time period 

provided to existing affected sources in 

the specific NESHAP. 

As discussed below, this is not the 

option that the EPA is proposing 

because we believe the final option in 

this list best balances the EPA’s desire 

to obtain emission reductions as soon as 

practicable, but also allow time required 

for a facility to effectively and 

efficiently come into compliance with 

potentially multiple requirements; 

however, the EPA requests comments 

and supporting information on this 

option. 

c. Provide a Single Timeline for all 

NESHAP Newly Triggered for MSDL 

Facilities 

Under this alternative, the EPA is 

considering whether a single 

compliance schedule should be 

provided for any new requirements at 

an MSDL facility when a new HAP is 

listed. As discussed above, the EPA 

conducted a review of current NESHAP 

and determined that the predominant 

compliance time provided to any 

impacted existing affected source is 3 

years after a rule is promulgated. Based 

on this review, the EPA is considering 

whether to provide up to three years for 

all MSDL facilities to come into 

compliance with all newly applicable 

requirements. 

The EPA could consider a set 

deadline that is less than three years. In 

many instances, the EPA considered the 

availability of resources in assessing the 

amount of time needed to comply with 

a NESHAP. These resources could 

include the lack of enough vendors to 

supply the expected air pollution 

control devices in less than three years. 

The EPA does not expect that a 

significant number of sources that 

would draw on the same resources (e.g., 

the same air pollution control vendor) 

will become MSDL sources and solicits 

comment on whether this assumption is 

reasonable. To the extent that up to 

three years was provided in a specific 

NESHAP to account for the resource 

drain, it could be reasonable to consider 

a different set time period under this 

requirement for MSDL affected sources. 

The EPA is aware that an MSDL 

facility has the potential to trigger more 

than one NESHAP and associated 

requirements, and these different 

NESHAP could provide for different 

compliance time periods. The EPA is 

considering whether providing a single 

date would enable a facility to develop 

a comprehensive strategy to comply 

with all newly applicable major source 

NESHAP requirements. A single date 

would also provide absolute clarity to 

all stakeholders as to when compliance 

was required, regardless of the NESHAP 

subpart that becomes applicable to 

them. Under this option, the EPA could 

select the longest time period allowed in 

the various regulations (i.e., 3 years after 

promulgation date), the shortest time 

period (i.e., immediate compliance 

required for new sources), or some time 

in between. The EPA requests 


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comments on the potential for any of 

these time periods. 

The EPA recognizes that this option 

would allow some facilities more time 

than was allowed under the original 

NESHAP. However, this option 

recognizes that a facility may need to 

develop a compliance strategy for 

multiple NESHAP that may involve 

different types of compliance 

requirements. For example, a facility 

may need to design, order, install and 

activate an air pollution control device 

to comply with one NESHAP, and may 

need to implement operational changes, 

or work practice requirements, for a 

different NESHAP. Providing the facility 

with the ability to strategize their 

overall compliance approach might be 

significantly more efficient than 

requiring separate dates for 

simultaneously triggered requirements. 

This is not the option we are 

proposing in this document. While this 

approach may be reasonable when 

considering a facility could have 

multiple new requirements, the EPA 

believes that the chosen option best 

balances a reasonable time for facilities 

and the need to not unnecessarily delay 

the implementation of certain practices 

or technologies that would more quickly 

reduce emissions and associated risks. 

However, the EPA requests comments 

on this option, including whether it 

should be the selected option and 

whether a different compliance 

timeframe should be selected, e.g., 

within 2 years or within 18 months 

under this option. In addition, we ask 

for comment on whether the EPA, if it 

were to promulgate this option, should 

include additional conditions. For 

example, the EPA could provide an 

overall compliance timeframe of ‘‘no 

later than 3 years,’’ but require that a 

MSDL facility demonstrate that any 

compliance date after 2 years would 

have to be justified to and approved by 

the Administrator (or delegated 

authority), unless compliance for a 

specific requirement required the 

installation of equipment, such as air 

pollution control devices. 

If the EPA were to finalize regulatory 

text that included some MSDL facilities 

being required to meet new source 

requirements, the EPA might still 

provide that all facilities be provided 

with the identical time allowance for 

compliance. The EPA solicits comments 

on this conclusion, as well as comments 

on alternatives that should be 

considered. 

d. Provide Compliance Deadlines Based 

on the Types of Emission Limitations or 

Requirements 

As discussed above, the majority of 

existing NESHAP have provided the 3 

years to comply, as allowed under CAA 

section 112(i)(3)(A). However, the EPA 

also has a long-standing history of 

providing shorter periods to ensure that 

the compliance requirements are 

consistent with statutory requirements. 

These shorter compliance periods are 

based, in part, on the type of emission 

standard. Where the emission standard 

is a work practice or does not require 

installation of add-on emission control 

device, the EPA has, consistent with 

CAA section 112(i)(3)(A) that requires 

compliance ‘‘as expeditiously as 

practicable,’’ required compliance in 

less than 3 years. For example, in 

establishing the 1995 NESHAP for 

Chromium Emissions from Hard and 

Decorative Chromium Electroplating 

and Chromium Anodizing Tanks, the 

EPA stated, ‘‘The EPA believes that the 

1-year timeframe for decorative 

chromium electroplaters is sufficient 

because, based on the EPA’s survey 

data, 80 percent of existing sources 

already use fume suppressants and very 

few will need to install add-on air 

pollution control devices.’’ (60 FR 4948; 

January 25, 1995). In the 1994 NESHAP 

for Magnetic Tape Manufacturing 

Operations, the EPA provided 2 years to 

comply unless a new control device was 

needed. (December 15, 1994). In the 

2004 Iron and Steel NESHAP the EPA 

required existing iron and steel 

foundries to comply with the scrap 

selection and inspection program within 

1 year of the effective date of the final 

rule because no controls were required, 

and emission reductions would be 

achieved as expeditiously as practicable 

(69 FR 21906; April 22, 2004). 

Based on the EPA’s history of 

establishing compliance deadlines for 

existing sources based on the type of 

emission standard, the EPA is proposing 

that the compliance deadline for MSDL 

facilities should be based on the type of 

emission standard applicable to the 

facility. For example, if the applicable 

emission standard requires the 

installation of add-on controls the 

compliance deadline would be longer 

(e.g., a 2-year compliance deadline 

starting from the date the source 

becomes major due to the listing of a 

new HAP) as compared with an 

emission standard that does not require 

the addition of controls (e.g., 1 year 

from the date the source becomes major 

due to listing of a new HAP if the 

emission standard is a work practice). 

The EPA is requesting comment on the 

appropriate compliance deadline (e.g., 

from 0 up to 3 years) depending on the 

type of emission standard. The EPA 

acknowledges that the CAA allows title 

V permitting authorities to grant 

sources, on a case-by-case basis, 

extensions to the compliance time of up 

to 1 year if such time is needed for the 

installation of controls. See CAA section 

112(i)(4)(i)(A). Permitting authorities are 

already familiar with, and in many cases 

have experience with, applying the 1- 

year extension authority under CAA 

section 112(i)(4)(A) as the provision 

applies to all NESHAP. This option will 

remain available to MSDL facilities. 

In addition to the long-standing 

compliance deadline differentiation 

based on the type of emission standard, 

the EPA believes that establishing 

shorter compliance deadlines for MSDL 

facilities is reasonable because some of 

the reasons for providing the full 3 years 

for existing sources under initial 

NESHAP will not exist for MSDL 

facilities. For example, during the 

development of the NESHAP for the 

Industrial, Commercial, and 

Institutional Boilers and Process 

Heaters, commenters expressed concern 

about the compliance deadline for 

existing sources stating that a ‘‘large 

number of sources that will be 

competing for the needed resources and 

materials from engineering consultants, 

permitting authorities, equipment 

vendors, construction contractors, 

financial institutions, and other critical 

suppliers.’’ (78 FR 7138; January 31, 

2013). The EPA does not expect the 

number of MSDL facilities following the 

listing of a new HAP to be similar to the 

overall number of facilities subject to a 

NESHAP on its initial promulgation and 

therefore the resource availability 

concerns are not expected. 

Another factor that supported 

providing the full 3-year compliance 

deadline for initial NESHAP was the 

learning curve associated with 

implementing standards or installing 

new controls to an existing process. In 

contrast, MSDL facilities, by definition, 

only deal with facilities triggering 

already existing NESHAP and some of 

these NESHAP were promulgated over 

20 years ago. Therefore, the industry 

and equipment vendors have already 

experienced, dealt with, and solved 

many of the initial application issues 

associated with applying a NESHAP 

standard to a source category for the 

first time. The years of experience 

gained at applying standards and 

installing controls within a source 

category should reduce the time needed 

to apply the same technology today at 

MSDL facilities. 


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The EPA is proposing to provide 

compliance deadlines based on the 

types of emission limitations or 

requirements for MSDL facilities 

because it provides the optimum 

balance between acknowledging that 

some time is needed to develop and 

implement control strategies for newly 

applicable NESHAP requirements and 

the desire to not unnecessarily delay 

compliance and the resulting emission 

reductions. The EPA requests comments 

on the use of this approach and 

specifically the proposed compliance 

deadlines of 2 years for facilities that 

install add-on controls and 1 year for all 

other standards. The EPA is clarifying 

that no compliance deadline extension 

will be provided for NESHAP that have 

identical requirements for area and 

major sources, because these facilities 

would already be complying with the 

NESHAP before becoming an MSDL 

facility. 

The EPA recognizes that under any of 

the last three options, there could be 

situations where there is a possible 

temporal gap in regulatory coverage for 

MSDL facilities that were, prior to their 

MSDL status, subject to an area source 

NESHAP. For example, a facility that 

was subject to area source NESHAP 

prior to their MSDL status might not be 

subject to any emissions standard 

during a compliance deadline extension 

allowed for the newly applicable major 

source NESHAP. 

The EPA is taking comment on what 

standard should or can apply during 

this period if a compliance deadline 

extension is provided. For example, one 

option the EPA is considering is 

whether a MSDL facility might be 

required, either by their existing permit 

or by a requirement added to this 

rulemaking, to continue to comply with 

any pre-existing areas source NESHAP 

until they are in compliance with newly 

applicable major source NESHAP. This 

gap-filling approach would prevent any 

inadvertent increase in emissions that 

could occur during this compliance 

extension period. 

The EPA also requests comment and 

specific examples of how this would 

occur and whether existing area source 

operating permits would remain 

enforceable until a new major source 

permit is issued. 

3. Are there any new notification 

requirements? 

The EPA evaluated whether any 

additional data should be required from 

facilities when a new HAP is listed. 

Without any changes, there are two 

notifications that would be required 

under existing NESHAP requirements. 

First, any MSDL facility that requires a 

title V operating permit would need to 

apply for the permit within 12 months 

of becoming subject to the operating 

permit requirement. This application 

would likely be required to include 

substantive data about the newly listed 

HAP, including a description of the 

emission sources, the quantity of 

emissions, and whether any other 

requirements were triggered by 

becoming a major source. Presumably 

this would include the identification of 

any major source NESHAP that is now 

applicable to the facility. As with other 

title V operating permit requirements, 

the EPA is not proposing to make any 

changes to the existing language. 

Second, an MSDL facility that triggers 

one or more major source NESHAP 

would become subject to the 

requirement to submit an initial 

notification under each newly 

applicable NESHAP. These 

requirements are specified in each 

NESHAP and in the General Provisions 

to part 63, including the details of the 

information that must be included and 

where the notification must be sent. 

Typically, these notifications are 

required within 180 days of becoming 

subject to a NESHAP, so would be 

required before the facility is required to 

submit a title V operating permit 

application, if also required. A permit 

application would typically be allowed 

to serve as the initial notification, if it 

is submitted within the timeframe 

required by the NESHAP and includes 

all of the information required by the 

specific rule. In the absence of 

requirements listed in a specific 

NESHAP, the initial notification content 

requirements are dictated by the 

provision in 40 CFR 63.9(b). The EPA 

reviewed the contents of the initial 

notification requirements under 40 CFR 

63.9(b) and determined that the content 

for MSDL notifications should be 

virtually identical to other notifications 

but to provide clarity it warrants a 

required indication that the facility is 

submitting the notification because it is 

an MSDL facility. 

To provide this clarity, the EPA is 

proposing that MSDL facilities include 

in their notification a statement that the 

facility is a major source due to HAP 

listing (MSDL) if the sole reason that the 

facility became major and triggered 

NESHAP applicability is the addition of 

a new HAP to 40 CFR subpart C, § 63.64. 

A red-lined copy of the General 

Provisions, including the proposed 

notification amendments for MSDL 

facilities is included in the docket for 

review. See OAR–HQ–OAR–2022–0441. 

The EPA also considered whether 

additional information should be 

required from other facilities that emit 

a newly listed HAP but are already 

subject to major source NESHAP 

requirements and are not required to 

submit either of the above documents 

when a new HAP is listed. Additional 

information on HAP usage, HAP 

emissions, potential controls, and other 

inventory information could aid in the 

EPA’s development of the best strategy 

for regulating a new HAP. However, this 

benefit needs to be weighed against the 

potential burden for developing and 

submitting this information from 

facilities that emit the newly listed 

HAP, especially as the facilities could 

include small businesses. The EPA 

solicits comments on whether 

additional notifications should be 

required for facilities that emit a newly 

listed HAP but are not triggered to 

submit an initial notification upon the 

listing. For example, this proposal 

solicits comment on whether a 

notification should be required from any 

facility that emits the newly listed HAP 

over some de minimis level. The EPA 

also asks whether additional public 

notification requirements should be 

included to provide better 

communication of public health risks by 

facilities that emit a newly listed HAP 

or if other mechanisms already exist, or 

will exist, to serve this function. If 

notice is required, we request comment 

on how best to establish a de minimis 

level, if one is recommended, and the 

basis for the proposed level. 

III. Solicitation of Additional 

Comments 

In addition to soliciting comments on 

the topics discussed earlier in this 

document, including the applicability of 

existing source MACT requirements for 

MSDLs and the compliance time 

allowed for MSDLs, the EPA 

additionally requests comments and 

information on the following questions. 

A. Regulatory Changes 

The EPA has developed a redlinestrikeout version of sections of 40 CFR 

part 63, subparts A and C, that would 

be revised under the proposed changes 

listed in this document. The draft 

regulatory language for the 

recommended options is included for 

review in the docket for this rule. See 

EPA Docket EPA–HQ–OAR–2022–0441. 

The EPA is requesting comments on this 

language. 

B. Early Input on Future EPA Action to 

Integrate Newly Listed HAP Into the 

CAA Section 112 Program 

While the focus of this proposed 

rulemaking is on the immediate impacts 

to MSDL facilities, the EPA 

acknowledges that there are other steps 


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62724 Federal Register / Vol. 88, No. 176 / Wednesday, September 13, 2023 / Proposed Rules 

that must be taken to fully address a 

newly listed HAP under CAA section 

112 regulatory framework. Foremost 

among these steps is the regulation and 

the resulting reduction in emissions of 

a newly listed HAP. However, as 

discussed above, existing NESHAP do 

not regulate the newly listed HAP 

unless and until the NESHAP is revised 

and an emission standard is established 

following the requirements of CAA 

section 112(d). 

This proposed rulemaking addresses 

only one part of the overall program to 

incorporate a new HAP into CAA 

section 112 regulatory framework. 

Future steps that are not addressed in 

this rulemaking would likely include 

addressing issues such as how best to 

develop an accurate emissions 

inventory for the new HAP, identify the 

sources that emit the new HAP, and 

either revising existing NESHAP 

standards or establishing new standards, 

as necessary, to incorporate and thereby 

reduce the emissions of the new HAP. 

The EPA is seeking comments on how 

best to obtain information about which 

sources and source categories emit a 

newly listed HAP, how much these 

facilities emit, how best to inform the 

populations surrounding these facilities 

that the facilities that emit a newly 

listed HAP, and how to incorporate 

meaningful engagement with affected 

communities in future actions. 

The EPA seeks comment on how to 

best provide outreach to entities that 

could be subject to requirements as an 

MSDL facility because of an addition to 

the HAP list. 

IV. Statutory and Executive Order 

Reviews 

Additional information about these 

statutes and Executive Orders can be 

found at https://www.epa.gov/lawsregulations/laws-and-executive-orders. 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulations 

and Regulatory Review 

This action is a significant regulatory 

action that was submitted to the Office 

of Management and Budget (OMB) for 

review under Executive Order 12866, as 

amended by Executive Order 14094. 

Any changes made in response to 

reviewer recommendations have been 

documented in the docket. 

B. Paperwork Reduction Act (PRA) 

This action does not impose an 

information collection burden under the 

PRA. 

C. Regulatory Flexibility Act 

I certify that this action will not have 

a significant economic impact on a 

substantial number of small entities. 

This proposed rule will not impose any 

requirements on small entities. 

Specifically, this action proposes a 

regulatory requirement addressing 

requirements for when a new HAP is 

added to the CAA section 112 HAP list; 

any burden from the addition of a new 

HAP is rightfully considered under the 

individual NESHAP that is triggered 

and not under the actions in this 

document. 

D. Unfunded Mandates Reform Act 

(UMRA) 

This action does not contain an 

unfunded mandate of $100 million or 

more as described in UMRA, 2 U.S.C. 

1531–1538, and does not significantly or 

uniquely affect small governments. The 

action imposes no enforceable duty on 

any state, local or tribal governments or 

the private sector. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the Federal 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government. This action does 

not impose any requirements on 

facilities or other parties. 

This action proposes amendments to 

General Provisions that provide 

requirements for when a new HAP is 

added to the CAA section 112 HAP list. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications as specified in Executive 

Order 13175. It would not impose 

substantial direct compliance costs on 

tribal governments that have designated 

facilities located in their area of Indian 

country. This action also will not have 

substantial direct costs or impacts on 

the relationship between the Federal 

government and Indian tribes or on the 

distribution of power and 

responsibilities between the Federal 

government and Indian tribes, as 

specified in Executive Order 13175. 

Thus, Executive Order 13175 does not 

apply to the action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

The EPA interprets Executive Order 

13045 as applying only to those 

regulatory actions that concern 

environmental health or safety risks that 

the EPA has reason to believe may 

disproportionately affect children, per 

the definition of ‘‘covered regulatory 

action’’ in section 2–202 of the 

Executive Order. This action is not 

subject to Executive Order 13045 

because it does not concern an 

environmental health risk or safety risk. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not a ‘‘significant 

energy action’’ because it will not have 

a significant adverse effect on the 

supply, distribution or use of energy. 

Specifically, this action proposes 

amendments to General Provisions to 

provide requirements for when a new 

HAP is added to the CAA section 112 

HAP list. 

I. National Technology Transfer and 

Advancement Act 

This rulemaking does not involve 

technical standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations and Executive 

Order 14096: Revitalizing Our Nation’s 

Commitment to Environmental Justice 

for All 

Executive Order 12898 establishes 

Federal executive policy on 

environmental justice. Its main 

provision directs Federal agencies, to 

the greatest extent practicable and 

permitted by law, to make 

environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse health or environmental 

effects of their programs, policies and 

activities on minority populations and 

low-income populations in the U.S. 

This rule would not increase the level 

of environmental protection for all 

affected populations, and it also will not 

have any disproportionately high and 

adverse health or environmental effects 

on any population, including any 

minority, or low-income population. 

Specifically, this action proposes 

amendments to NESHAP General 

Provisions to provide requirements for 

when a new HAP is added to the CAA 

section 112 HAP list. These proposed 

changes would aid in the 

implementation of updated and new 


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Federal Register / Vol. 88, No. 176 / Wednesday, September 13, 2023 / Proposed Rules 62725 

NESHAP that will occur after a new 

HAP has been listed. 

Michael S. Regan, 

Administrator. 

[FR Doc. 2023–19674 Filed 9–12–23; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R2–ES–2023–0073; 

FF09E21000 FXES1111090FEDR 234] 

RIN 1018–BG35 

Endangered and Threatened Wildlife 

and Plants; Endangered Species 

Status for Quitobaquito Tryonia and 

Designation of Critical Habitat 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), propose to 

list the Quitobaquito tryonia (Tryonia 

quitobaquitae), a springsnail species 

from Arizona, as an endangered species 

under the Endangered Species Act of 

1973, as amended (Act). This 

determination also serves as our 12- 

month finding on a petition to list the 

Quitobaquito tryonia. After a review of 

the best available scientific and 

commercial information, we find that 

listing the species is warranted. We also 

propose to designate critical habitat for 

the Quitobaquito tryonia under the Act. 

In total, approximately 6,095 square feet 

(566 square meters) across 2 subunits in 

Pima County, Arizona, fall within the 

boundaries of the proposed critical 

habitat designation. We also announce 

the availability of a draft economic 

analysis (DEA) of the proposed 

designation of critical habitat for 

Quitobaquito tryonia. If we finalize this 

rule as proposed, it would extend the 

Act’s protections to this species and its 

designated critical habitat. 

DATES: We will accept comments 

received or postmarked on or before 

November 13, 2023. Comments 

submitted electronically using the 

Federal eRulemaking Portal (see 

ADDRESSES below) must be received by 

11:59 p.m. eastern time on the closing 

date. We must receive requests for a 

public hearing, in writing, at the address 

shown in FOR FURTHER INFORMATION

CONTACT by October 30, 2023. 

ADDRESSES: You may submit comments 

by one of the following methods: 

(1) Electronically: Go to the Federal 

eRulemaking Portal: https://

www.regulations.gov. In the Search box, 

enter FWS–R2–ES–2023–0073, which is 

the docket number for this rulemaking. 

Then, click on the Search button. On the 

resulting page, in the panel on the left 

side of the screen, under the Document 

Type heading, check the Proposed Rule 

box to locate this document. You may 

submit a comment by clicking on 

‘‘Comment.’’ 

(2) By hard copy: Submit by U.S. mail 

to: Public Comments Processing, Attn: 

FWS–R2–ES–2023–0073, U.S. Fish and 

Wildlife Service, MS: PRB/3W, 5275 

Leesburg Pike, Falls Church, VA 22041– 

3803. 

We request that you send comments 

only by the methods described above. 

We will post all comments on https:// 

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see 

Information Requested, below, for more 

information). 

Availability of supporting materials: 

Supporting materials, such as the 

species status assessment report, are 

available on the Service’s website at 

https://www.fws.gov/office/arizonaecological-services, at https://

www.regulations.gov at Docket No. 

FWS–R2–ES–2023–0073, or both. For 

the proposed critical habitat 

designation, the coordinates or plot 

points or both from which the map is 

generated are included in the decision 

file for this critical habitat designation 

and are available at https://

www.regulations.gov at Docket No. 

FWS–R2–ES–2023–0073 and on the 

Service’s website at https://

www.fws.gov/office/arizona-ecologicalservices. 

FOR FURTHER INFORMATION CONTACT: 

Heather Whitlaw, Field Supervisor, U.S. 

Fish and Wildlife Service, Arizona 

Ecological Services Field Office, 9828 

North 31st Ave #C3, Phoenix, AZ 

85051–2517; telephone 602–242–0210. 

Individuals in the United States who are 

deaf, deafblind, hard of hearing, or have 

a speech disability may dial 711 (TTY, 

TDD, or TeleBraille) to access 

telecommunications relay services. 

Individuals outside the United States 

should use the relay services offered 

within their country to make 

international calls to the point-ofcontact in the United States. 

SUPPLEMENTARY INFORMATION: 

Executive Summary 

Why we need to publish a rule. Under 

the Act, a species warrants listing if it 

meets the definition of an endangered 

species (in danger of extinction 

throughout all or a significant portion of 

its range) or a threatened species (likely 

to become an endangered species within 

the foreseeable future throughout all or 

a significant portion of its range). If we 

determine that a species warrants 

listing, we must list the species 

promptly and designate the species’ 

critical habitat to the maximum extent 

prudent and determinable. We have 

determined that the Quitobaquito 

tryonia meets the definition of an 

endangered species; therefore, we are 

proposing to list it as such and 

proposing a designation of its critical 

habitat. Both listing a species as an 

endangered or threatened species and 

making a critical habitat determination 

can be completed only by issuing a rule 

through the Administrative Procedure 

Act rulemaking process (5 U.S.C. 551 et 

seq.). 

What this document does. We 

propose to list the Quitobaquito tryonia 

as an endangered species under the Act, 

and we propose the designation of 

critical habitat for the species. 

The basis for our action. Under the 

Act, we may determine that a species is 

an endangered or threatened species 

because of any of five factors: (A) The 

present or threatened destruction, 

modification, or curtailment of its 

habitat or range; (B) overutilization for 

commercial, recreational, scientific, or 

educational purposes; (C) disease or 

predation; (D) the inadequacy of 

existing regulatory mechanisms; or (E) 

other natural or manmade factors 

affecting its continued existence. We 

have determined that Quitobaquito 

tryonia is endangered due to the 

following threats: decline in spring flow 

resulting from groundwater pumping 

and ongoing drought; effects of climate 

change; and spring modification. 

Section 4(a)(3) of the Act requires the 

Secretary of the Interior (Secretary), to 

the maximum extent prudent and 

determinable, to designate critical 

habitat concurrent with listing. Section 

3(5)(A) of the Act defines critical habitat 

as (i) the specific areas within the 

geographical area occupied by the 

species, at the time it is listed, on which 

are found those physical or biological 

features (I) essential to the conservation 

of the species and (II) which may 

require special management 

considerations or protection; and (ii) 

specific areas outside the geographical 

area occupied by the species at the time 

it is listed, upon a determination by the 

Secretary that such areas are essential 

for the conservation of the species. 

Section 4(b)(2) of the Act states that the 

Secretary must make the designation on 

the basis of the best scientific data 

available and after taking into 

consideration the economic impact, the 

impact on national security, and any 


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