On October 1, 2021, DOE published a RFI undertaking the preliminary stages of a rulemaking to consider potential test procedures for fans and blowers, including air circulating fan heads. DOE is seeking data and information to evaluate whether new test procedures would accurately and fully comply with the requirement that a test procedure measures energy use during a representative average use cycle for the equipment without being unduly burdensome to conduct. Specifically, DOE is seeking information regarding the definition, scope, test procedure and metrics for air circulating fan heads. 86 FR 54412. On October 15, 2021, AMCA requested an extension of the public comment period for the RFI. AMCA commented that the extension is necessary to research the issues that DOE is asking about and to collaborate with other organizations responding to the RFI. AMCA stated that they believe an extension will serve the public interest through improving not only the quality of the information industry submits to the department, but also increasing the likelihood of presenting the department with consensus recommendations on many of the questions being asked. (AMCA, No. 2 at p. 1)  1

DOE has reviewed the requests and is extending the comment period to allow additional time for interested parties to submit comments. As noted, the RFI was issued as part of the preliminary stages of a rulemaking to consider potential test procedures for fans and blowers, including air circulating fan heads. If DOE determines that test procedures may be appropriate, additional notifications will be published ( e.g., a notice of proposed rulemaking) providing interested parties with an additional opportunity to submit comment. DOE has determined that an extension of 14 days is sufficient for this preliminary stage. Therefore, DOE is extending the comment period until November 15, 2021.

This document of the Department of Energy was signed on October 19, 2021, by Kelly Speakes-Backman, Principal Deputy Assistant Secretary and Acting Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

This ANPRM on Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings follows this outline:

Heat is the leading cause of death among all weather-related phenomena (NWS, September 8, 2021a; NWS, September 8, 2021b). Excessive heat exacerbates existing health problems like asthma, kidney failure, and heart disease, and can cause heat stroke and even death if not treated properly and promptly. Workers in both outdoor and indoor work settings without adequate climate-controlled environments are at risk of hazardous heat exposure. In an evaluation of 66 heat-related illness enforcement investigations from 2011-2016, 80% of heat-related fatalities occurred in outdoor work environments. However, 61% of non-fatal heat-related illness cases occurred during or after work in an indoor work environment (Tustin et al., August 2018). Pregnant workers (NIOSH, April 20, 2017) and workers of color are disproportionately exposed to hazardous levels of heat in essential jobs across these work settings (Gubernot et al., February 2015). In addition, climate change is increasing the frequency and intensity of extreme heat events, as well as increasing daily average daytime and nighttime temperatures. OSHA is initiating a rulemaking to protect both indoor and outdoor workers from hazardous heat, and as a first step is seeking additional information about the extent and nature of hazardous heat in the workplace and the nature and effectiveness of interventions and controls used to prevent heat-related illness. This ANPRM provides an overview of the problem of heat stress in the workplace and the measures that have been taken to prevent it. This ANPRM also seeks information on issues that may be considered in developing a standard, including the scope of the standard and the types of controls that might be required.

OSHA uses several terms related to excessive heat exposure throughout this document. Heat stress means the load of heat that a person experiences due to sources of heat or heat retention, or the presence of heat in a work setting. Heat strain means the physiological response to heat exposure (ACGIH, 2017). Heat-related illness means adverse clinical health outcomes that occur due to exposure to hazardous heat. Heat-related injury means an injury linked to heat exposure that is not considered one of the typical symptoms of heat-related illness, such as a fall or cut. The document also uses the combined terms of heat injury and illness when talking about prevention or programming to demonstrate that both injury and illness should be considered, with the exception of the names of existing programs.

According to the Bureau of Labor Statistics (BLS) Census of Fatal Occupational Injuries, exposure to excessive environmental heat stress has killed 907 U.S. workers from 1992-2019, with an average of 32 fatalities per year during that time period (BLS, September 10, 2021a). In 2019, there were 43 work-related deaths due to environmental heat exposure (BLS, September 1, 2021). A recent analysis of BLS data by National Public Radio and Columbia Journalism Investigations found that the three-year average of heat-related fatalities among U.S. workers has doubled since the early 1990s (Shipley et al., August 17, 2021). The BLS Annual Survey of Occupational Injuries and Illnesses estimates that 31,560 work-related heat injuries and illnesses involving days away from work have occurred from 2011-2019, with an average of 3,507 injuries and illnesses of this severity occurring per year during this period (BLS, September 10, 2021b). However, the estimates provided here on occupational heat-related illnesses, injuries, and fatalities are likely vast underestimates, as discussed further in Underreporting of occupational illnesses, injuries, and fatalities due to hazardous heat (Section I.B. of this ANPRM).

In a warm environment, the human body maintains a healthy internal body temperature by getting rid of excess heat through mechanisms like sweating and increasing blood flow to the skin. This is especially true during physical activity or exertion. Briefly, if the body is not able to dissipate heat, the body temperature may rise, and symptoms of heat-related injury and illness can result. These can include heat rashes, heat syncope (fainting), heat cramps, heat exhaustion, rhabdomyolysis (a complex medical condition involving muscle breakdown), kidney injury, and even heat stroke (the inability of the body to cool which can lead to death) if the thermoregulatory capacity of the body is exceeded (Ebi et al., August 21, 2021; NIOSH, February 2016). A multi-country meta-analysis of dozens of studies involving thousands of workers globally found that of those exposed to hazardous heat during a single work shift, 35% experienced heat strain while 15% of those who frequently worked in hazardous heat experienced kidney disease or acute kidney injury (Flouris et al., December 2018).

Exposure to hazardous heat can also result in the exacerbation of pre-existing medical conditions, such as diabetes or cardiovascular disease. A study of U.S. Army personnel demonstrated that those who have been hospitalized in U.S. hospitals for heat-related illness may experience organ damage that can persist for years afterward, even resulting in an increased risk of death from cardiovascular disease and ischemic heart disease compared to those previously hospitalized for other reasons (Wallace et al., 2007). Recurrent exposure to hazardous heat, and resulting dehydration, has also been found to be associated with acute and chronic kidney disease and injury in agricultural workers and others performing manual labor in outdoor work settings, particularly in South America, central America and certain South Asian countries. These illnesses appear to be unrelated to traditional causes of the disease (Glaser et al., August 8, 2016; Johnson et al., May 9, 2019; Sorensen and Garcia-Trabanino, August 22, 2019). Although much of this research has focused on international populations, there is emerging evidence of this health hazard in occupational populations within the U.S. (Mix et al., 2019; Glaser et al., August 8, 2016).

The following questions are intended to solicit information on the topics related to assessing the nature and magnitude of occupational illness, injuries, and fatalities occurring due to hazardous heat.

(1) What are the occupational health or safety impacts of hazardous heat exposure?

(2) What sources of data are important to consider when evaluating occupational heat-related illnesses, injuries, and fatalities?

(3) Beyond the studies discussed in this ANPRM, are there other data that provide more information about the scope and magnitude of injuries, illnesses, and fatalities related to occupational heat exposure?

Heat-related illnesses, injuries, and fatalites are underreported (EPA, April 2021; Popovich and Choi-Schagrin, August 11, 2021). Occupational heat-related illnesses, injuries, and fatalities may be underestimated for several reasons. First, the full extent of heat-related health outcomes is underreported generally because heat is not always recognized as a contributing factor and the criteria for defining a heat-related death or illness may vary by state, and among physicians, medical examiners, and coroners. (Gubernot et al., October 2014). Due to the varying nature of heat-related illness symptoms, some of which ( e.g., headache, fatigue) may have other causes, not all cases of illness or injury are reported. Further, if the illness or injury does not require medical treatment beyond first aid, or result in restrictions or days away from work, loss of consciousness, diagnosis by a healthcare professional as a significant injury, or death, an employer is not required to report the incident under OSHA's existing injury reporting requirements (see 29 CFR 1904.7(a)). There may also be situations where an illness, injury, or fatality is deemed to be unrelated to work, but heat exposure at work may have contributed to that incident (Gubernot et al., October 2014; Shipley et al., August 17, 2021).

Second, hazardous heat can impair job tasks related to complex cognitive function (Ebi et al., August 21, 2021), and also reduce decision-making abilities and productivity. A recent global meta-analysis showed that 30% of workers who experienced hazardous heat during a single shift reported productivity losses (Flouris et al., December 2018). Additionally, a growing body of evidence has demonstrated that these heat-induced impairments may result in significant occupational injuries that are not currently factored into assessments of the health hazards resulting from occupational heat exposure (Park et al., July 2021). In California, the likelihood of same-day workplace injury risk significantly increased by approximately 5-7% when comparing a day that was 60-65 degrees Fahrenheit to a day that was 85-90 degrees Fahrenheit. Same-day workplace injury risk increased 10-15% when comparing a day that was 60-65 degrees Fahrenheit to a day that was above 100-degrees Fahrenheit. These increased risks were demonstrated in certain indoor and outdoor work environments, contributing to approximately 360,000 additional workplace injuries in California alone from 2001-2018 (Park et al., July 2021).

Third, self-reporting of health outcomes can result in bias which can lead to over- or under-estimates of health outcomes (Althubaiti, May 4, 2016). In 2009, the Government Accountability Office (GAO) reported that the BLS Survey of Occupational Injuries and Illnesses, which relies heavily on employer self-report of non-fatal injuries and illnesses, may underreport employer-reported injury and illness data (GAO, October 2009). This underreporting of non-fatal illnesses and injuries may be particularly present in some industries, like agriculture, where some employers ( e.g., employers with 10 or fewer employees) are excluded from reporting requirements (Leigh et al., April 2014). While there may be multiple factors influencing underreporting, BLS investigations of this issue have found that employers and employees may face disincentives for reporting injuries and illnesses (BLS, December 8, 2020). By reporting injuries and illness, employers may increase their workers' compensation costs and jeopardize their reputation. Employees may also face disincentives for reporting if they are reluctant to report for fear of retaliation or may not realize an illness or injury is heat-related. Employees may decide to continue working for economic incentives and to avoid losing wages. Employee fear of retaliation, including the potential loss of employment, may be of particular concern with heat-related illness and injuries given the disproportionate number of undocumented, migrant, low-wage, or other vulnerable workers that make up sectors that are at high risk of hazardous heat exposure such as agriculture and construction. These workers may lack the awareness of their right to, and perceived ability to, speak out about workplace conditions. Additional concerns related to the inequalities in hazardous heat exposure and resulting health outcomes are discussed below in more detail. Despite potential underreporting, these datasets are important indicators of occupational safety and health, and through the questions below, OSHA seeks additional information and data to better assess the fullest extent of occupational illnesses, injuries, and fatalities due to hazardous heat exposure in the workplace.

Finally, there are some health conditions associated with occupational heat exposure that may take many years to manifest in workers previously exposed to hazardous heat due to the latency period between exposure and symptom onset (Gubernot et al., October 2014). For these illnesses that develop over time, it is unlikely that the current national datasets of occupational illnesses and injuries associate those outcomes with hazardous heat exposure.

The following questions are intended to solicit information on the topics related to assessing and addressing underreporting of occupational illness, injuries, and fatalities occurring due to hazardous heat.

(4) Are there quantitative estimates of the magnitude of occupational illnesses, injuries, and fatalities related to hazardous heat, beyond what is described in this ANPRM?

(5) Are there quantitative estimates or other quantitative or non-quantitative examinations of the magnitude of underreporting of occupational illnesses, injuries, and fatalities related to hazardous heat?

(6) What factors lead to the underreporting of occupational heat-related illness, injuries, and fatalities of which OSHA should be aware?

(7) What datasets are available to address some of the limitations associated with the underreporting of occupational heat-related illnesses, injuries, and fatalities?

Workers across hundreds of industries are at risk for hazardous heat exposure and resulting health impacts. Since 2018, 789 heat-related hospitalizations and 54 heat-related fatalities across nearly 275 unique industries have been documented by OSHA through workplace inspections and violations . During this time, hospitalizations occurred most frequently in postal and delivery service, landscaping, and commercial building, as well as highway, street, and bridge construction workers. Fatalities were reported in landscaping, masonry, and highway, street, and bridge construction workers (OSHA, August 20, 2021).

Also since 2018, over 230 unique industries (as identified by 6-digit NAICS codes) across indoor and outdoor work settings have had at least one heat-related inspection by OSHA. During 2019, for example, OSHA heat-related inspections occurred most often in industries and workplaces such as roofing, postal and delivery service, construction and contracting, masonry, landscaping, restaurants, and warehousing and storage (OSHA, August 20, 2021).

Further, multiple analyses of OSHA enforcement investigations and the Census of Fatal Occupational Injuries have found that Agriculture (NAICS code 11), Construction (NAICS code 23), Transportation and Warehousing (NAICS codes 48-49), and Administrative and Support and Waste Management and Remediation Services (NAICS code 56) experience the highest rates of heat-related mortality (Gubernot et al., February 2015; Tustin et al., August 2018). Compared to the average annual heat-related workplace fatality rate in all other industries of 0.09 deaths per 1 million workers, Agriculture, Forestry, Fishing, and Hunting was found to have 35 (95% confidence interval, 26.3-47.0) times the risk of heat-related deaths with 3.06 deaths per 1 million workers from 2000-2010. Construction had 13 (95% confidence interval, 10.1-16.7) times the risk of heat-related deaths with 1.13 deaths per 1 million workers during that time period (Gubernot et al., February 2015).

Many job tasks, regardless of the industry in which they are performed, may also result in the risk of exertional heat stress in workers. The American Conference of Governmental Industrial Hygienists (ACGIH) has developed categories of work intensity based on their estimated metabolic rate, with the metabolic rate increasing across categories: rest ( e.g., sitting), light ( e.g., sitting, standing, light arm/handwork, occasional walking), moderate ( e.g., normal walking, moderate lifting), heavy ( e.g., heavy material handling, walking at a fast pace), very heavy ( e.g., pick and shovel work) (ACGIH, 2017; OSHA, September 15, 2017). In an evaluation of 14 heat-related workplace fatalities that occurred from 2011-2016, the workload was moderate, heavy, or very heavy in 13 of the incidents (Tustin et al., July 6, 2018). Of 20 enforcement cases from 2012-2013 that resulted in heat-related citations under the Occupational Safety and Health Act's General Duty Clause, all fatalities and non-fatal heat-related illnesses occurred under moderate or heavy workloads (Arbury et al., April 2016).

The following questions are intended to solicit information about how hazardous heat exposure and risk varies across industries, occupations, and job tasks.

(8) Are there industries, occupations, or job tasks that should be considered when evaluating the health and safety impacts of hazardous heat exposure in indoor and outdoor work environments? Please provide examples and data.

(9) Are there any industries, occupations, or job tasks that are facing changes in the rate or frequency of occupational heat-related illness? Please provide examples and data.

The structure of work and various work arrangements, such as the use of temporary, gig, or contingent workers, has been found in some studies, including of non-US workers, to be associated with increased health and safety risks to workers (Caban-Martinez et al., April 2018; Virtanen et al., 2005). This may be due to a variety of reasons, including workers in these work arrangements being assigned more hazardous work tasks, being less aware of their ability to report unsafe work conditions, being less acclimatized to the heat conditions of the work environment, or not receiving adequate personal protective equipment (PPE) or training for the job duties they are conducting. These work arrangements are present in a variety of industries where workers face hazardous heat exposure, such as construction, agriculture, and landscaping, in part due to outdoor work settings and seasonality of work.

Additionally, multi-employer contexts may impact the health and safety of workers due to the need for and challenges associated with close coordination across employers on health and safety issues such as training and monitoring safe work practices (OSHA, October 6, 2021a; OSHA and NIOSH, October 6, 2021). OSHA recognizes that any rulemaking will need to consider the challenges for employers and employees related to protecting those in non-traditional, variable, and multi-employer work arrangements.

The following questions are intended to solicit information about how unique and non-traditional work arrangements contribute to workers' risk of heat-related injuries and illnesses, as well as the best practices and challenges for reducing those risks in these work settings.

(10) In addition to traditional work arrangements, are there specific types of work arrangements or multi-employer work arrangements that should be considered when evaluating the health and safety impacts of hazardous heat exposure in indoor and outdoor work environments?

(11) What are current and best practices for protecting workers in various types of work arrangements, including temporary and multi-employer work arrangements, from hazardous heat exposure?

(12) What are current challenges in and limitations of protecting workers in various types of work arrangements, including temporary and multi-employer work arrangements, from hazardous heat exposure?

Heat-related illnesses can occur in businesses of all sizes. An evaluation of 38 enforcement investigations involving 66 incidents of fatal and non-fatal heat-related illness from 2011-2016 found that 92% of workplaces investigated had less than 250 employees (Tustin et al., August 2018). In a different assessment of workplace heat-related fatalities from 2000-2010, almost half of all fatalities where establishment size was known (244 cases out of 359 fatalities) occurred in what the authors termed “very small establishments,” or those with fewer than 10 employees (Gubernot et al., February 2015). However, approximately a quarter of fatalities during that time period occurred in “very large establishments” with more than 100 employees (Gubernot et al., February 2015).

The following questions are intended to solicit information about how business size may influence the practices and interventions implemented to prevent heat-related injuries and illnesses and the challenges experienced by businesses of varying sizes when implementing these prevention strategies. There are additional questions on the economic considerations for small entities included in Impacts on Small Entities (Section IV.B. of this ANPRM).

(13) How are employers in businesses of various sizes currently preventing heat-related injury and illness in workers?

(14) Are there limitations or concerns in preventing heat-related injury and illness in workers that vary among businesses of various sizes?

Heat-related injury and illness among workers can occur anywhere in the United States. In 2015, Texas and California had the highest number of nonfatal injuries and illnesses with days away from work (BLS, August 30, 2017). Texas and California also accounted for a quarter of all heat-related workplace fatalities from 2000-2010 (Gubernot et al., February 2015).

However, when the size of the worker populations are taken into account, states across the southern United States, including Mississippi, Arkansas, Nevada, West Virginia, and South Carolina, have been found to have the highest rates of heat-related workplace fatalities from 2000-2010 (Gubernot et al., February 2015). In 2015, Kansas and South Carolina had the highest rates of heat-related nonfatal injuries and illnesses with days away from work, at 1.3 and 1.0 per 10,000 workers, respectively (BLS, August 30, 2017). Recent evidence also shows that the Southeast United States accounts for the most cases officially reported to OSHA.

As discussed in Under-reporting of Occupational Illnesses, Injuries, and Fatalities due to Hazardous Heat (Section I.B. of this ANPRM), significant underreporting of workplace heat-related injury and illness limits the understanding of the full geographic scope of outcomes. Additionally, populations that are less accustomed to hazardous heat, such as those in the Northeast or Midwest U.S., may be at increased risk of health impacts from extreme heat, particularly during early season high heat events (Anderson and Bell, February 2011).

The following questions are intended to solicit information, relevant data sources, and considerations related to occupational heat exposure and outcomes based on geographic region.

(15) How does geographic region contribute to occupational heat hazards and the outcomes experienced by workers? Please provide examples and data.

(16) Are there regions with improving or worsening occupational heat hazards and associated outcomes? Please provide examples and data.

(17) Do regions with traditional and pervasive heat hazards address the hazard differently than regions with more episodic exposures ( e.g., heat waves in a normally temperate region)?

(18) What regional differences should be considered or accounted for when determining the appropriate interventions and practices to prevent heat-related injuries and illnesses among workers?

Disproportionate exposure to hazardous working conditions and their resulting health and safety impacts on workers exacerbates socioeconomic and racial inequalities in the U.S. In assessments of national work-related injuries, illnesses, and fatalities, employment in high-risk occupations has been disproportionately held by those who are Black, foreign-born, or low wage-earners, after adjusting for other demographic characteristics like sex and education (Steege et al., 2014). Non-Hispanic Black workers and foreign-born Hispanic workers tend to work in jobs with the highest injury risks even after adjusting for sex and education (Seabury et al., February 2017). Sociodemographic disparities in hazardous occupational exposures to dust and chemicals, noise, musculoskeletal hazards, and strain have been found to persist even after accounting for industry and job (Quinn et al., 2007).

These disparities are also present when focusing on health and safety outcomes that result from hazardous heat exposure. Black and Hispanic workers had higher relative risks of heat-related fatalities compared to white workers from 2000-2010 (Gubernot et al., February 2015), and one-third of workplace heat-related fatalities since 2010 have occurred in Hispanic workers (Shipley et al., August 17, 2021). From 1992-2006, agricultural crop workers were estimated to be 20 times more likely to suffer a heat-related fatality at work when compared to all other civilian occupations, with the majority of fatalities occurring among immigrant workers (CDC, June 20, 2008), and from 2000-2010, agricultural workers had 35 (95% confidence interval, 26.3-47.0) times the risk of dying from heat-related causes compared to all other industries (Gubernot et al., February 2015). Lower-wage workers are more likely to live and work in areas facing greater exposure to hazardous heat, to work in dangerous occupations, and to have limited access to air conditioning at home or other housing which may limit the ability to recover from occupational and non-occupational heat exposures. In California, lower-wage workers experienced five times as many heat-related injuries compared to the highest-wage workers between 2001 and 2018 (Park et al., July 2021). As climate change increases extreme heat events, Hispanic and Latino individuals, as well as American Indian and Alaska Native individuals, individuals with low income, and individuals lacking a high school diploma are more likely to live in areas with the highest projected labor hour losses (EPA, September 2, 2021).

The following questions are intended to solicit information, relevant data sources, and considerations related to inequalities in occupational heat exposure and disproportionate outcomes experienced by vulnerable occupational populations.

(19) Are there specific populations facing disproportionate exposure to or outcomes from hazardous heat in indoor or outdoor work settings? Please provide examples and data.

(20) Are there data sources available to assess inequalities in exposure to or outcomes from hazardous heat in indoor or outdoor work settings?

(21) Are there industries or employers who are addressing occupational heat-related illness with an environmental justice approach ( i.e., with a focus on fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income) to appropriately address the disproportionate exposures and outcomes faced by workers of color, low-wage workers, immigrant workers, or pregnant workers (NIOSH, April 20, 2017)? Please provide examples and data.

Climate change is increasing the frequency and intensity of extreme heat events, as well as increasing daily average daytime and nighttime temperatures. The National Climate Assessment, the United States' quadrennial report assessing climate change science and impacts and published by the U.S. Global Change Research Program, states that high summer temperatures are linked to increased illness and death, that hot days are associated with increased heat-related illnesses, that health risks may be higher earlier in warmer seasons before people have had time to acclimatize, and that workers will face an increased risk of heat-related illness due to heat exposure. This will be especially true in rural areas, particular sectors and occupations such as agriculture, forestry, construction, utilities, warehousing, manufacturing, and indoor workplaces producing additional heat or lacking adequate cooling, such as steel mills, dry cleaning, and others, and for workers of color, those who are older, and of lower socioeconomic status (USGCRP, 2016; USGCRP, 2018). It is estimated that under a high emissions scenario, climate change will result in the annual loss of almost 2 billion labor hours with an annual cost of an estimated $160 billion in lost wages (in 2015 dollars) due to extreme temperatures alone, the vast majority of which is due to heat (EPA, May 2017; USGCRP, 2018). As the number of days above 90 degrees Fahrenheit increases due to climate change, so do lost hours of work. Nationally, the average losses are projected to be 14 to 34 hours annually per “weather-exposed” worker due to high temperature days. Weather-exposed workers in parts of the Southwest and Southern Great Plains could lose up to 84 hours per worker annually, depending on the level of temperature increases (EPA, September 1, 2021).

The following questions are intended to solicit information, relevant data sources, and considerations to further assess the impact of climate change on occupational heat exposure and outcomes.

(22) Are there data sources available to assess how climate change is altering hazardous heat exposure in outdoor and indoor work environments?

(23) How will climate change affect existing inequities in occupational heat exposure and related health outcomes? Please provide relevant data.

(24) How will climate change affect the risk of occupational heat-related illness and mortality in the different regions of the United States?

(25) How should climate change be factored into an OSHA heat illness and injury prevention standard?

(26) What efforts are employers currently taking to prepare for and respond to the ways that climate change is altering hazardous heat exposure in their workplaces?

OSHA has taken a multi-pronged approach to address hazardous heat among both indoor and outdoor workers. This includes efforts ranging from education and awareness building, guidance, compliance assistance, stakeholder engagement, and enforcement.

OSHA has a long-running Heat Illness Prevention Campaign ( https://www.osha.gov/heat ), which was initiated in 2011 to build awareness of prevention strategies and tools for employers and workers to reduce occupational heat-related illness. Historically, the Campaign has utilized the slogan “Water. Rest. Shade.” The agency updated Campaign materials in 2021 to recognize both indoor and outdoor heat hazards, as well as the importance of protecting new and returning workers from hazardous heat. These efforts, which are ongoing, incorporate stakeholder feedback and feature materials available in an increasing number of languages. Despite the strengths and reach of the Campaign, these guidance and communication materials are not legally enforceable requirements.

In addition to the Heat Illness Prevention Campaign materials, OSHA publishes a heat specific Safety and Health Topics page ( https://www.osha.gov/heat-exposure ), which provides additional information and resources on heat topics. The page provides information on planning and supervision in hot environments, identification of heat-related illness and first aid, information on prevention such as training, calculating heat stress and controls, personal risk factors, descriptions of other heat standards and case study examples of situations where workers developed heat-related illness. OSHA and the National Institute for Occupational Safety and Health (NIOSH) also co-developed a Heat Safety Tool Smartphone App for both Android and iPhone devices. The app provides outdoor location sensitive temperature, humidity, and heat index readings, as well as provides a corresponding risk level for ranges of heat index. The app is not for indoor use if using automatically downloaded data for the heat index calculation. Each risk level provides relevant information on identifying signs and symptoms of heat-related illness and steps that should be taken at that risk level to prevent heat-related illness.

On June 22, 2021, at a meeting of the National Advisory Committee for Occupational Safety and Health (NACOSH), the agency announced its intention to form a NACOSH work group to engage stakeholders and better understand current best practices and challenges in occupational heat-related illness prevention across a variety of industries to inform OSHA's response to this important hazard. This NACOSH Heat Illness Prevention Work Group (WG) will consist of experts who have extensive knowledge and experience in causes of, identification of, and factors that affect heat-related illness hazards in the workplace, as well as best practices and interventions for mitigating occupational heat-related illness. OSHA intends to initially convene the work group in late fall 2021.

Although OSHA does not have a specific standard governing hazardous heat conditions at workplaces, the agency currently enforces Section 5(a)(1) (General Duty Clause) of the OSH Act against employers that expose their workers to this recognized hazard. Section 5(a)(1) states that employers have a general duty to furnish to each of their employees employment and a place of employment free from recognized hazards that cause or are likely to cause death or serious physical harm to employees (29 U.S.C. 654(a)(1)). To prove a violation of the General Duty Clause, OSHA needs to establish—in each individual case—that: (1) The employer failed to keep the workplace free of a hazard to which its employees were exposed; (2) the hazard was recognized; (3) the hazard was causing or likely to cause death or serious injury; and (4) a feasible means to eliminate or materially reduce the hazard existed. (See, e.g., A.H. Sturgill Roofing, Inc., 2019 O.S.H. Dec. (CCH) ¶ 33712, 2019 WL 1099857, (No. 13-0224, 2019)).

OSHA has relied on the General Duty Clause to cite employers for heat-related hazards for decades. Additionally, OSHA has issued various forms of guidance for employers and employees whose work occurs in indoor and outdoor heat environments and has addressed heat-related illness in Regional Emphasis Programs in an attempt to protect workers from heat-related injury. (Please see OSHA Heat Illness Prevention Campaign and Guidance Efforts and Other Enforcement Efforts, Sections II.A.1 and II.A.4 of this ANPRM, respectively.) However, the General Duty Clause does not specifically prescribe hazardous heat exposure thresholds or provide specifics on how employers are to eliminate or reduce their employees' exposure to hazardous heat. A standard specific to heat-related injury and illness prevention would more clearly set forth employer obligations and help employers to identify the measures necessary to more effectively protect employees from hazardous heat.

OSHA's enforcement efforts to protect employees from hazardous heat conditions using the General Duty Clause, although important, have been met with significant legal challenges, leaving many workers vulnerable to heat-related hazards. Because there are no specific, authoritative exposure thresholds for OSHA to rely on, it has been challenging for the agency to prove the existence of a recognized hazard, even in cases in which a heat-related fatality has occurred. (See, e.g., A.H. Sturgill Roofing, Inc., 2019 O.S.H. Dec. (CCH) ¶ 33712, 2019 WL 1099857, (No. 13-0224, 2019); Aldridge Elec., Inc., 26 BNA OSHC 1449, 2016 WL 8581709, (No. 13-2119, 2016)).

Moreover, in litigated cases OSHA has been largely unsuccessful in relying on third-party scientific documents—such as ACGIH exposure thresholds and NIOSH criteria—to prove the existence of a recognized hazard. (See Aldridge Elec., Inc., 2016 WL 8581709 at *14 (noting that “none of these documents is a mandatory document that [employers] must follow akin to an OSHA regulation.”); Industrial Glass, 15 BNA OSHC 1594, 1992 WL 88787, at *12 n. 10, (No. 88-348, 1992) (noting that the NIOSH criteria “[do] not have the force or effect of law.”)). Additionally, because the available scientific information is not currently defined in terms of a workplace hazard standard, adjudicators have found that crucial terms and methods for determining the severity of risk for heat-related illness are too vague or insufficiently defined to effectively determine the existence of a recognized hazard in the context of a particular case. (See, e.g., A.H. Sturgill Roofing, Inc., 2019 WL 1099857 at *4 (noting that the National Oceanic and Atmospheric Administration's (NOAA) National Weather Service Heat Index chart does not define “prolonged exposure” or explain what factors must be considered to increase heat index values; only stating that “exposure to full sunshine can increase heat index values by up to 15 °F.”)).

Under the General Duty Clause, OSHA cannot require abatement before proving in an enforcement proceeding that specific workplace conditions are hazardous; whereas a standard would establish the existence of the hazard at the rulemaking stage, thus allowing OSHA to identify and require specific abatement measures without having to prove the existence of a hazard in each case. Given OSHA's burden under the General Duty Clause, it is currently difficult for OSHA to ensure necessary abatement before employee lives and health are unnecessarily endangered. Moreover, under the General Duty Clause OSHA must largely rely on expert witness testimony to prove both the existence of a hazard and the availability of feasible abatement measures that will materially reduce or eliminate the hazard in each individual case. (See, e.g., Industrial Glass, 1992 WL 88787 at *4-7).

In 2019, OSHA conducted 289 heat-related inspections (OSHA, August 20, 2021). More than 110 of these were initiated by complaints and 20 were due to the occurrence of a fatality or catastrophe. As a result of these inspections, OSHA issued 155 Hazard Alert Letters (HALs), which provide employers with information to mitigate hazards and resources to assist in this process when OSHA determines a formal citation cannot be issued. OSHA issued only 31 General Duty Clause citations during the same period (OSHA, August 20, 2021). Thus, HALs were issued at five times the rate of 5(a)(1) citations in 2019.

On September 1, 2021, OSHA's Directorate of Enforcement Programs issued an Inspection Guidance for Heat-Related Hazards, which establishes a new enforcement initiative to prevent heat-related illnesses and fatalities while working in hazardous hot indoor and outdoor environments (OSHA, September 1, 2021). The guidance provides that days when the heat index exceeds 80 degrees Fahrenheit will be considered heat priority days. Enforcement efforts will be increased on heat priority days for a variety of indoor and outdoor industries, with the aim of identifying and mitigating potential hazards and preventing heat-illnesses before they occur.

OSHA's Region VI regional office, located in Dallas, TX, has a heat-related special Regional Emphasis Program (REP) (OSHA, October 1, 2019). This region covers Texas, New Mexico, Oklahoma, Arkansas, and Louisiana, which have a high number of heat-related injuries, illnesses, and fatalities. This REP allows field staff to conduct heat illness inspections of outdoor work activities on days when the high temperature is forecast to be above 80 degrees Fahrenheit. This REP includes employers with fewer than 11 employees. Under the authority of this REP, Region VI conducted 78 inspections on heat-related illness, which identified 89 violations, in 2019 alone.

Heat-related inspections are also initiated by heat-related complaints, hospitalizations or fatalities, and during an unrelated programmed or unprogrammed inspection where a heat hazard is identified. In addition, OSHA Area Offices can initiate heat interventions or inspections based on local knowledge of establishments, referrals from the local health department, or from other Federal agencies with joint jurisdictions, such as U.S. Department of Agriculture (USDA), Environmental Protection Agency (EPA), media referrals or previous OSHA inspection history.

OSHA currently has other existing standards that, while applicable to some issues related to hazardous heat, have not proven to be adequate in fully protecting workers. OSHA's Recordkeeping standard (29 CFR 1904.7) requires employers to record and report injuries and illnesses that meet recording criteria. If an injury or illness does not require medical treatment beyond the provision of first aid, it does not need to be reported. Some actions that a worker may be recommended to take when experiencing heat-related illness, such as hydration, are considered to be first aid, and therefore are not recordable.

The agency's Sanitation standards (29 CFR 1910.141, 29 CFR 1915.88, 29 CFR 1917.127, 29 CFR 1926.51, and 29 CFR 1928.110) require employers to provide potable water readily accessible to workers. While these standards require that drinking water be made available in “sufficient amounts,” it does not specify what those amounts are, and employers are only mandated to encourage workers to frequently hydrate on hot days.

OSHA's Safety Training and Education standard (29 CFR 1926.21) requires employers in the construction industry to train employees in the recognition, avoidance, and prevention of unsafe conditions in their workplaces. OSHA's PPE standards (29 CFR 1910.132, 29 CFR 1915.152, 29 CFR 1917.95, and 29 CFR 1926.28) require employers to conduct a hazard assessment to determine the appropriate PPE to be used to protect employees from the hazards identified in the assessment. However, hazardous heat is not specifically identified as a hazard for which workers need training or PPE, complicating the application of these requirements to hazardous heat.

The following questions are intended to solicit information related to the existing efforts OSHA has undertaken to prevent occupational heat-related illness, injuries, and fatalities.

(27) Are OSHA's existing efforts and authorities adequate or effective in protecting workers from hazardous heat in indoor and outdoor work settings?

(28) What additional efforts or improvements should be undertaken by OSHA to protect workers from hazardous heat in indoor and outdoor work settings?

(29) What are the gaps and limitations of existing applicable OSHA standards, as well as existing campaign, guidance, enforcement, and other efforts for preventing occupational heat-related illness in indoor and outdoor work settings?

OSHA has received three petitions from Public Citizen and supporting organizations, in 2011, 2018, and 2021, to implement a heat standard. The petitions presented data on the impacts of heat on workers' morbidity and mortality. The 2011 petition was for an Emergency Temporary Standard under section 6(c) of the OSH Act and was denied for failing to meet the grave danger requirement of the Act. The 2018 petition asked for an OSHA heat standard under section 6(b) of the OSH Act and was co-signed by over 130 organizations and nearly 100 individuals. The 2021 petition again requested that OSHA issue an Emergency Temporary Standard. The agency has not yet responded to the 2018 and 2021 petitions.

Over the last several years, many members of Congress have also urged OSHA to initiate rulemaking for a Federal heat standard. In 2019, OSHA received a request for rulemaking from members of the Senate (Brown et al., November 18, 2019). In August 2021, OSHA received a request for rulemaking from members of both the Senate and the House of Representatives (Padilla et al., August 3, 2021; Chu et al., August 6, 2021). Both chambers of Congress also have pending legislation in the 2021-2022 legislative session that would order OSHA to develop and implement a Federal heat standard (U.S. Senate, 117th Congress, April 12, 2021; U.S. House of Representatives, 117th Congress, March 26, 2021). This legislation has also been considered in past legislative sessions.

NIOSH first proposed details of a potential Federal heat standard in 1972 in its Criteria for a Recommended Standard (NIOSH, 1972). Criteria documents, issued under the authority of section 20(a) of the Occupational Safety and Health Act of 1970, recommend occupational safety and health standards based on exposure limits and work intensity that are safe for various periods of employment as established by a critical review of scientific and technical information. NIOSH's criteria for a recommended standard have since been updated in 1986 (NIOSH, April 1986) and again in 2016 (NIOSH, February 2016). The 2016 criteria recommend that a Federal heat standard include provisions for medical screening and physiological monitoring, heat stress thresholds, rest breaks, hydration, shade, acclimatization plans, engineering controls ( e.g., air conditioners, fans, tents), administrative controls ( e.g., rest breaks and altered work schedules), PPE and auxiliary body cooling ( e.g., cooled or iced vests, jackets, or other wearable garments), exposure and medical monitoring, hazard notification alerts, worker training and education, medical surveillance, and recordkeeping (NIOSH, February 2016).

The 2016 criteria document recommends occupational exposure limits for heat stress, such that no worker be “exposed to combinations of metabolic and environmental heat greater than” the recommended alert limit (RAL, for unacclimatized workers) or the recommended exposure limit (REL, for acclimatized workers). The NIOSH criteria recommend that environmental heat should be assessed with hourly measurements of Wet Bulb Globe Temperature (WBGT) (NIOSH, February 2016), and metabolic heat should be assessed using the metabolic-work-rates set by ACGIH (ACGIH, 2017). There are lower recommended exposure limits for unacclimatized workers, workers who are wearing work clothing that minimizes heat dissipation from the body, and those who have underlying personal risk factors. These exposure limits were highly sensitive, meaning the exposure limits were met or exceeded, in an investigation of a subset of 14 cases of fatal (100% sensitivity) and 11 nonfatal (72% sensitivity) heat-related illness in workers that occurred during outdoor work (Tustin et al., July 6, 2018).

As of October 2021, four states have promulgated hazardous heat standards requiring employers in various industries and workplace settings to provide protections and abatement measures to reduce the risk of heat-related illness for their employees: California, Minnesota, Oregon, and Washington. Oregon issued a temporary rule in July of 2021 after experiencing temperatures well above 100 °F for an extended period. Washington State also issued emergency heat rules during the summer of 2021 that provide additional worker protections to its previously promulgated heat rule. Additionally, since 2020, three more states, Colorado, Maryland, and Nevada, have passed laws requiring state health and safety administrators to promulgate rules related to hazardous heat in the workplace. Virginia's Safety and Health Codes Board is also considering a standard on this topic.

State standards differ in the scope of coverage. For example, Minnesota's standard covers only indoor workplaces. California and Washington standards cover only outdoor workplaces, although California is engaged in rulemaking for a potential indoor heat standard. Oregon's emergency rule covers both indoor and outdoor workplaces. California, Washington, and Oregon all have additional protections that are triggered by high heat, however, they differ as to the trigger for these additional protections: In California it is at a temperature reading of 95 °F (and only includes certain industries), in Washington it is at a temperature reading of 100 °F, and in Oregon it is at a heat index of 90 °F. State rules also differ in the methods used for triggering the heightened protections against hazardous heat. Minnesota's standard considers the type of work being performed (light, moderate, or heavy) and has calculated a threshold WBGT for each work activity. California's heat-illness prevention protections go into effect at 80 °F, ambient temperature. Washington's rule also relies on ambient temperature readings combined with considerations for the weight and breathability of workers' clothing. Oregon's emergency rule relies on the heat index as calculated by NOAA's National Weather Service.

All of the state standards require training for employees and supervisors. All of the state standards except for Minnesota require employers to provide at least 1 quart of water per hour for each employee, require some form of emergency response plan, mention the importance of acclimatization for workers, and require access to shaded break areas. Washington and Oregon require that employers provide training in a language that the workers understand. Similarly, California's standard requires that employers create a written heat-illness prevention plan in English as well as in whatever other language is understood by the majority of workers at a given workplace. California has the most robust acclimatization program, which requires close monitoring of new employees for up to fourteen days and monitoring of all employees during a heat wave. Table II.D.1, below, highlights these and additional similarities and differences between the existing state standards on hazardous heat.

The following questions are intended to solicit information related to the existing efforts at the state level to prevent occupational heat-related illness, injuries, and fatalities.

(30) What are the most effective aspects of existing state standards aimed at preventing occupational heat-related illness?

(31) What are the challenges with the implementation of existing state standards aimed at preventing occupational heat-related illness?

(32) Of the existing state standards, have any been more effective or challenging in their implementation than others? Why?

(33) What components of a state standard or program should be included in Federal guidance or regulatory efforts on heat-related illness prevention?

(34) Would any of the elements of the state standards not be feasible to include at the Federal level?

Various other organizations have also either identified the need for standards to prevent heat-related injury and illness or published their own standards. In 2019, the American National Standards Institute/American Society of Safety Professionals A10 Committee (ANSI/ASSP) announced a proposed consensus standard on heat stress management. The International Organization for Standardization has a standard estimating heat stress: ISO 7243: Hot Environments—Estimation of Heat Stress on Working Man, Based on the WBGT-Index (ISO, 2017). Additional standards address predicting sweat rate and core temperature (ISO 7933), methods for determining metabolic rate (ISO 8996), physiological strain (ISO 9886), and thermal characteristics for clothing (ISO 9920) (NIOSH, February 2016). The ISO heat stress standard uses WBGT values to assess hot environments and assumes workforces to which thresholds are applied are healthy, physically fit, and are wearing standard clothing.

ACGIH has identified Threshold Limit Values or TLVs for heat stress and heat strain (ACGIH, 2017). The TLVs utilize WBGT and take into consideration metabolic rate or work load categories: Light (sitting, standing, light arm/handwork, occasional walking), moderate (normal walking, moderate lifting), heavy (heavy material handling, walking at a fast pace), very heavy (pick and shovel work). Additionally, ACGIH provides clothing adjustment factors in degrees Celsius that should be added to the assessed WBGT for certain types of work clothing. The TLVs range from WBGTs of approximately 24.5 degrees Celsius at the highest level of work to just under 34 degrees Celsius at light work and low metabolic rates (ACGIH, 2017). ACGIH emphasizes that the TLVs are appropriate for healthy, acclimatized workers and they encourage screening of workers for potential sensitivities to heat and provide guidelines for physiological monitoring for heat strain. An action limit that is below the level of the TLV is identified for unacclimatized workers.

The U.S. Armed Forces has developed extensive heat-related illness prevention and management strategies. The Warrior Heat and Exertion Related Events Collaborative is a tri-service group of military leaders focused on clinical, educational, and research efforts related to exercise and exertional heat-related illnesses and medical emergencies (HPRC, October 6, 2021). The U.S. Army has a Heat Center at Fort Benning which focuses on management, research, and prevention of heat-related illness and death (Galer, April 8, 2019). In 2016, the U.S. Army updated its Training and Doctrine Command (TRADOC) Regulation 350-29 addressessing heat and cold casualties. The regulation includes requirements for rest and water consumption according to specific WBGT levels and work intensity (Department of the Army, July 18, 2016). The U.S. Navy has developed Physiological Heat Exposure Limit curves based on metabolic and environmental heat load and represent the maximum allowable heat exposure limits, which were most recently updated in 2009. The Navy monitors WBGT, with physical training diminishing as WBGTs increase and all nonessential outdoor activity stopped when WBGTs exceed 90 degrees Fahrenheit (Department of the Navy, February 12, 2009). The U.S. Marine Corps follows the Navy's guidelines for implementation of the Marine Corps Heat Injury Prevention Program (Commandant of the Marine Corps, June 6, 2002). The U.S. Army and U.S. Air Force issued a technical heat stress bulletin in 2003 with measures to prevent indoor and outdoor heat-related illness in soldiers, with recommended limitations of continuous work at “moderate” or “hard” intensities, acclimatization planning, work-rest cycles, and fluid and electrolyte replacement (Department of the Army and Air Force, March 7, 2003).

The following questions are intended to solicit information related to the existing efforts undertaken to prevent occupational heat-related illness, injuries, and fatalities by other entities.

(35) Do any of these existing standards contain elements that should be considered for a Federal standard?

(36) Are there other industry standards that contain elements that should be considered for a Federal standard?

(37) Are there elements of these standards that would not be appropriate or feasible for a Federal heat standard?

While this section has primarily detailed efforts undertaken by OSHA, other Federal agencies, states, and industry trade associations, OSHA also recognizes that some employers may be engaged on this topic and implementing their own heat-related illness prevention efforts.

The following questions are intended to solicit information, relevant data sources, and considerations to further assess the current employer efforts to prevent heat-related illness and their efficacy in preventing heat-related illnesses.

(38) What efforts are employers currently taking to prevent occupational heat-related illness in their workplace? Please provide examples and data.

(39) How effective have employers been in preventing occupational heat-related illness in their workplaces, and how are employer-driven heat injury and illness prevention programs being evaluated?

Workers in both indoor and outdoor occupations in a variety of sectors are exposed to heat at work through process, exertional, and/or environmental heat. Hazardous heat exposure can reduce the body's ability to regulate physiological processes and can result in heat-related injury or illness, heat stroke, or death. Determining when heat becomes hazardous is complex. Heat exposure and its resultant health effects depend on multiple factors, such as heat-generating practices within a workplace, level of exertion during work, air temperature, humidity, whether work is occurring in direct sunlight or shade, wind, and cloud cover (OSHA, September 2, 2021). Individual-level factors such as age, pharmaceutical use, underlying health conditions (such as cardiovascular diseases), and the ability to cool at night (during heat waves or access to night time air conditioning, for example) also play a role (Kilbourne, 1997; Quandt et al., 2013; OSHA, October 6, 2021b).

Multiple metrics and thresholds exist for measuring heat and identifying when it may become hazardous to a population. Ambient temperature, heat index, and WBGT are available metrics for measuring environmental heat and identifying conditions that may lead to heat-related injury or illness. Ambient temperature, which can be calculated using a common thermometer, is the most accessible and understandable metric that most people are familiar with. However, ambient temperature measurements alone do not take into consideration humidity, which is an important factor that influences the body's ability to cool. Heat index combines air temperature and humidity and is a widely reported weather statistic that many people are familiar with and is often referred to as the “feels like” or “apparent” temperature. Heat index is used for setting heat advisories (NWS, September 2, 2021) but does not take into consideration radiant heat or wind speed, which the more health-relevant WBGT does. WBGT is a health-relevant measurement that incorporates air temperature, wind, radiant heat, and humidity (Budd, 2008; OSHA, September 15, 2017; Oliveira et al., 2019). Measuring WBGT requires specialized thermometers or equipment, and may not always be available as a forecast through the National Weather Service. Additionally, WBGT may require guidance and training to avoid confusion with more well-known scales like temperature or heat index.

Another challenge with each of these metrics is identifying appropriate thresholds for each metric that will prevent adverse health impacts due to hazardous heat exposure. There is no universally accepted threshold for ambient temperature, heat index, or WBGT at which heat is considered hazardous. Determining thresholds is complicated by differences in regional climatology, where one region's population may become vulnerable to heat-related illness at lower heat levels (Grundstein et al., January 2015; NWS, August 25, 2021). NOAA, NIOSH, OSHA, the U.S. Military, and other organizations currently offer differing thresholds and metrics for the identification of hazardous heat (Department of the Army and Air Force, March 2007; NIOSH, 2016; NWS, August 25, 2021; OSHA, September 2021; NWS, September 1, 2021). Existing state standards also apply different thresholds and metrics. Further, existing thresholds for various metrics may not be protective in the occupational setting because injuries and illnesses have been reported below these existing thresholds (Morris et al., January 28, 2019; Park et al. July 2021), and many of the thresholds indicating the potential for heat-related injury or illness are based on older data or studies that included populations that may not be most appropriate for evaluating heat stress or strain in the occupational setting, such as military populations (Steadman, April 11, 1979; Rothfusz, July 1, 1990; Budd, 2008).

The following questions are intended to solicit information, relevant data sources, and considerations to further assess the application of various heat metrics and the identification and definition of hazardous heat using metric thresholds.

(40) What metrics are currently being used to monitor and assess hazardous heat exposure in the workplace ( e.g., heat index, ambient temperature, WBGT)?

(41) What are the advantages and disadvantages of using each of these metrics ( e.g., heat index, ambient temperature, WBGT) in indoor and outdoor work settings? Are there any challenges associated with training employers and employees on these different metrics?

(42) Are there other metrics used to assess hazardous heat exposure in the workplace that are not discussed here?

(43) What are current and best practices in defining hazardous heat exposure in outdoor and indoor workplaces, and what are the limitations or challenges associated with those practices?

(44) Are there industries implementing exposure monitoring for heat? Please provide examples and data.

(45) What thresholds are utilized for various metrics implemented in existing occupational heat prevention plans or activities? Are these thresholds effective for preventing heat-related illness and fatalities?

(46) Which metrics and accompanying thresholds are both feasible and health-protective in both indoor and outdoor occupational settings?

(47) Does application of certain heat metrics require more training than the use of other heat metrics?

Air temperature, humidity, wind, and whether work occurs in direct sunlight all contribute to the potential for heat stress for outdoor workers. Additionally, physical exertion contributes to heat stress by increasing metabolic heat production. Exertion is an important consideration for the development of heat stress especially since physical activities may take place over prolonged periods of time in a work setting and in environmental conditions that limit the body's ability to cool, such as working in direct sunlight or under warm and humid conditions. These factors that contribute to heat stress can lead to heat strain and heat-related illness when the body fails to lose heat. Some surfaces, such as asphalt, absorb heat and can add to heat exposure. The urban heat island effect is a well-studied phenomenon that can elevate temperatures in areas concentrated with heat absorbent surfaces. For example, dense urban areas may experience afternoon temperatures 15-20 degrees higher than surrounding areas with more natural land cover and vegetation (NIHHIS, August 25, 2021). PPE can also contribute to heat stress by interfering with the body's ability to cool. PPE intended to protect workers from chemical, physical, or biological hazards can reduce sweat evaporation and subsequent cooling ( i.e., limit the body's ability to sweat), can trap heat and moisture next to the skin, and can increase the level of exertion required to complete a task (NIOSH, February 2016).

The factors that contribute to heat stress in outdoor settings contribute to heat stress in indoor settings as well, especially in buildings that lack adequate climate control. Additionally, heat-producing processes and equipment such as those that generate steam, generate heat, or use certain tools and combustion, can increase ambient temperature and contribute to heat stress in indoor work settings. Lack of adequate climate control in indoor work settings can also contribute to occupational heat stress since indoor settings can increase in temperature and humidity as outdoor temperatures increase, and there is no relief for process or task-related heat production. Additionally, buildings with windows may be further heated by sunlight that enters windows and warms the workspace.

The vulnerability of the energy grid is another variable that may place many workers at risk of experiencing heat-related illness. In many areas of the country, energy grids are vulnerable to brownouts and blackouts in conditions of high heat due to the increased demand and stress placed on the energy infrastructure (Stone, Jr., et al., 2021). Because of this vulnerability of a key cooling mechanism, more workers in more industries may be at risk for experiencing heat stress, strain, and heat-related illness than is currently realized, especially during heat waves or during other natural disasters that impact the functionality of energy grids.

In both indoor and outdoor settings, individual risk factors contribute to the risk of heat-related illness as some individuals are more susceptible to the detrimental effects of heat. Occupational heat-related fatalities have been found to occur more frequently in men than in women, in those with preexisting conditions ( e.g., obesity, diabetes, hypertension, cardiac disease), and in those with a preexisting use of certain medications or illicit drugs that predispose individuals to heat-related illness (Gubernot et al., February 2015; Tustin et al., July 6, 2018; Tustin et al., August 2018). Other factors, such as age, fitness level, alcohol consumption, prior heat-related illness, and lack of access to air conditioning in housing, also reduce the body's ability to regulate heat and can increase individual risk of heat-related illness. Workplace controls should focus on making indoor and outdoor work safe for all employees, while also complying with the Americans with Disabilities Act and the Age Discrimination in Employment Act.

The following questions are intended to solicit information, relevant data sources, and considerations to further assess contributions to heat stress in indoor and outdoor work settings as well as individual risk factors that may contribute to heat-related illness in occupational settings.

(48) What factors, beyond those discussed above, contribute to heat stress in outdoor and/or indoor occupational settings?

(49) Is air conditioning provided in employer-provided or sponsored housing?

(50) Are there existing employer efforts or programs to ensure that employees have the ability to adequately cool at night in order to recover from occupational heat exposure?

(51) What factors are the most important contributors to heat-related illness risk?

(52) Are there other individual risk factors that contribute to the risk of heat-related illness?

(53) What individual risk factors are the most important contributors to heat-related illness risk?

(54) Are there existing employer-led heat prevention programs that consider individual-level risk factors in their prevention guidance? If so, how are they implemented? What are the challenges associated with this?

Workplace heat-related injury and illness is preventable, and many effective controls can be implemented. The following sections provide a brief overview and targeted questions about controls that would be important to consider as part of an effective heat injury and illness prevention program.

Safety and health programs aim to prevent workplace injuries, illnesses, and fatalities by using a proactive approach to managing workplace safety and health. An effective heat injury and illness prevention program would include elements on: Assessing heat hazards that may occur at the workplace, acclimatizing new and returning workers, evaluating how and when heat will be measured, and determining what controls will be put into place and what training will be provided to workers and supervisors. Evaluations of heat-related enforcement cases have shown that in investigations of heat-related fatalities or heat-related illness that resulted in 5(a)(1) violations from 2012-2013, no employer had a complete heat illness prevention program that addressed all of the recommended components, and 12 of the 20 cases evaluated had no heat illness prevention program at all (Arbury et al., April 2016). In one study, the implementation of a heat illness prevention program was found to decrease workers' compensation costs associated with heat-related illness incidents and reduce the total number of heat-related illnesses experienced by outdoor municipal workers in Texas (McCarthy et al., September 2019).

The following questions are intended to solicit information and relevant data sources that OSHA should consider when evaluating the need for and elements of a heat injury and illness prevention program for indoor and outdoor work environments.

(55) What are the elements of a successful employer-led heat injury and illness prevention program? How are these programs implemented? What are the challenges associated with them? Please provide examples and data.

(56) Are there other elements of a heat injury and illness prevention program that are important to consider?

(57) Are there limitations associated with implementing a heat injury and illness prevention program across indoor or outdoor work settings, or across businesses of various sizes? If so, what are they?

(58) Are there demonstrated evaluations on the successes or limitations of various components of any existing state or employer heat injury and illness prevention program, including quantitative or qualitative evaluations?

Engineering controls, such as air conditioning or increased ventilation, increase evaporative cooling and can keep body temperatures at safe levels. Other examples of engineering controls that may reduce the amount of hazardous heat present could include the use of local exhaust ventilation at points of high heat production, insulating hot surfaces or equipment ( e.g., furnaces), and providing shade tents, or other building modifications where appropriate.

Administrative controls, such as making changes to workloads or work schedules, can be useful in keeping workers cool during hazardous heat exposure. For example, work schedules may shift from the hottest parts of the day to cooler times of the day, like overnight or early in the morning. Employers may implement work-rest cycles by adding additional rest breaks in the shade or air conditioning away from heat sources as environmental and exertional heat increases. Some employers have implemented self-pacing for workers as an alternative to work-rest cycles, allowing employers to pace themselves throughout the work shift when heat is hazardous. Other examples of administrative controls could include reducing physical demands during the hottest times of the day or implementing buddy systems to ensure workers are watching out for signs and symptoms of heat-related illness in each other.

OSHA's Heat Illness Prevention Campaign has historically recommended the implementation of “Water. Rest. Shade.,” which is a combination of engineering and administrative controls to provide workers with adequate amounts of water, rest, and shade. As discussed above in more detail, because the Campaign is not mandatory, these controls are not always implemented in workplaces. An evaluation of 38 enforcement investigations from 2011-2016 found that while nearly 85% of the inspected employers provided accessible water, none of them enforced or required rest breaks during periods of hazardous heat (Tustin et al., August 2018). In some work settings, such as in agricultural workplaces, workers may be paid piecemeal or receive wages based on their productivity or output. These payment schemes can result in workers making tradeoffs between reduced productivity and lost wages versus taking breaks to rest or drink water (Wadsworth et al., 2019). However, without breaks, overall productivity can decline during hazardous heat due to workers being less able to work efficiently, as well as from higher rates of accidents and heat-related illnesses (Ebi et al., August 21, 2021).

In some situations, PPE and auxiliary body cooling methods ( e.g., cooled or iced vests, jackets, or other wearable garments) may further reduce the risk of heat strain in those working in hazardous heat conditions. For example, reflective and breathable clothing, cooling neck wraps, and cooling vests or jackets may provide enhanced protection to some workers.

The following questions seek to solicit additional information, data sources, and considerations for engineering and administrative controls, as well as PPE, and their use in preventing heat-related illness in indoor and outdoor work settings.

(59) What engineering controls, administrative controls, or PPE can be used to prevent heat-related illness in indoor and outdoor work settings? Have the qualitative or quantitative effectiveness of these controls been evaluated?

(60) Are there data that demonstrate the role of facility energy efficiency in maintaining optimal thermal conditions, optimizing worker performance, and cost-effectiveness of cooling strategies?

(61) Are certain controls that are more effective or more feasible than others? If so, which ones? Do effectiveness and feasibility of controls differ due to setting (indoor/outdoor, business size, arrangement of work, etc.)?

(62) What are the limitations associated with implementing water, rest, and shade effectively in indoor and outdoor work settings?

(63) How are work-rest cycles currently implemented in indoor and outdoor work settings? What are the limitations for implementation?

(64) Are there additional sources of data or evidence that describe the quantitative or qualitative impacts of work-rest cycles on productivity?

(65) How do productivity or output based payment schemes affect the ability of workers to follow heat illness and injury prevention training, guidance or requirements?

(66) How do productivity or output based payment schemes affect employer implementation of heat illness and injury prevention training, guidance or requirements?

(67) Are there additional sources of data or evidence that describe the quantitative or qualitative impacts of self-pacing as an alternative to work-rest cycles to prevent occupational heat-related illness?

Acclimatization refers to the process of the human body becoming accustomed to new environmental conditions by gradually adapting to the conditions over time. Gradual exposure to the condition of concern ( e.g., heat) allows the body to develop more robust physiological responses, such as a greater sweat response, to adapt to heat more efficiently. Workers who are new to working in warm environments may not be acclimatized to heat, and their bodies need time to gradually adapt to working in hot environments. Evaluations of workplace fatalities have shown that approximately 70% of deaths occur within the first few days of work, and upwards of 50% occur on the first day of work (Arbury et al., August 8, 2014; Tustin et al., August 2018), highlighting the consequences of workers not becoming acclimatized to the environmental conditions of the workplace. Acclimatization is also important for those who may have been previously acclimatized but were out of the workforce or hot environment of the workplace for more than 2 weeks ( e.g., due to vacation or sick leave). All outdoor workers may need time to acclimatize to heat during early season hazardous heat, or during particularly severe or long-lasting heat events, which are associated with higher mortality in the general population (Anderson and Bell, February 2011). During a heat wave, environmental conditions may become extremely hazardous, even to workers who may have been previously acclimatized.

OSHA and NIOSH have historically recommended the “Rule of 20 Percent” for acclimatizing workers. Under this regimen, workers would only work 20 percent of the normal duration of work on their first day in hazardous heat conditions performing job tasks similar in intensity to their expected work, increasing the work duration by 20 percent on each subsequent day until performing a normal work schedule. For example, if the normal workday lasts 8 hours, then new workers should work no more than 1 hour and approximately 40 minutes (20 percent of 8 hours) on their first day in the heat, and spend the remainder of the workday doing work tasks without heat stress (OSHA, October 7, 2021). They should be given at least one rest break during the period when they are working. Workers with underlying medical conditions may need more time to fully adapt to the heat.

The following questions aim to solicit additional information, relevant data sources, and considerations on the design and implementation of acclimatization plans for workers in indoor and outdoor work settings.

(68) What are current and best practices for implementing acclimatization in various industries and across businesses of various sizes?

(69) What are the challenges with acclimatizing workers, including workers in non-traditional/multi-employer work arrangements ( e.g., temporary workers)?

(70) Are there different challenges and best practices for acclimatization in indoor work settings versus outdoor work settings?

(71) Are there unique concerns or approaches for implementing acclimatization for a small versus large business?

(72) Are there additional sources of data or evidence that describe the quantitative or qualitative impacts of acclimatization schedules on productivity?

Physiological, medical, and exposure monitoring of workers exposed to heat hazards can prevent heat strain from progressing to heat-related illness or death. Monitoring can alert both employees and employers when workers have been exposed to hazardous heat and are experiencing heat strain and should seek water, rest, shade, cooling, or medical attention. Monitoring activities may include monitoring environmental conditions regularly, self-monitoring of urine color, and monitoring of heart rate and core body temperature. Individual-level biomonitoring with wearable technologies may be an option in some occupational settings. Monitoring activities may also include buddy systems where workers are educated in signs and symptoms of heat-related illness and proactively look for signs and symptoms in fellow workers and encourage them to rest, hydrate, and find shade or seek emergency medical attention if the worker is experiencing signs of heat-related illness.

The following questions are intended to solicit information, relevant data sources, and considerations to further assess heat monitoring activities or programs in occupational settings.

(73) Are there industries or individual employers implementing exposure, medical, and/or physiological monitoring to assess workers' health and safety during hazardous heat events?

(74) What are the best practices for implementing a monitoring program? How effective are the monitoring activities in preventing heat-related illness in workers?

(75) If physiological and medical monitoring programs are used, who implements these programs? Does that individual(s) have specialized training or experience?

(76) If physiological and medical monitoring programs are used, are data protected by confidentiality or privacy requirements? Please describe how data are maintained to ensure employee privacy and to meet any confidentiality or privacy requirements.

(77) How is exposure, medical, or physiological monitoring currently implemented or tracked across various time scales ( e.g., hourly, daily) in an occupational setting?

(78) What are the risks or challenges with this type of medical or physiological monitoring in a workplace?

(79) Do you use physiological or medical monitoring to assist in identifying high risk employees?

(80) How do you use physiological monitoring data ( e.g., as a short term response to heat stress conditions, to address long term examination in protecting employees, to identify high risk categories of workers)?

(81) Do you require that notification of monitoring results be provided to employees?

(82) Do you use physiological monitoring to validate the effectiveness of recommended controls?

(83) Are there unique concerns or approaches in developing a monitoring program for small versus large businesses?

A heat-illness emergency occurs when a worker is experiencing a health crisis due to over-exposure to hazardous heat. Workers and employers need to be able to identify a heat-illness emergency, know how to respond to an emergency to protect the health of the affected worker, to have materials on-site to respond to an emergency, and know how to contact emergency medical care when needed. Emergency response plans can ensure that workers understand how to respond in an emergency and can help prevent heat-related illness from progressing to heat stroke or death.

The following questions are intended to solicit information, relevant data sources, and considerations to further assess the role of heat-illness emergency planning and response in indoor and outdoor work settings in responding to heat stress in the workplace and preventing heat-related injury and illness from progressing to heat stroke or death.

(84) How do organizations in both indoor and outdoor work environments currently deal with heat-illness emergencies if they arise?

(85) What are current best practices in workplace response to occupational heat-illness emergencies?

(86) What are the challenges with responding to a heat-illness emergency in various work environments ( e.g., indoor settings, outdoor settings, remote locations)?

(87) What should be included in an employer's heat emergency response plan?

(88) What materials or supplies should employers have on-site to respond to a heat emergency?

(89) When should employers refer employees for medical treatment or seek medical treatment for an employee who is experiencing a heat-illness emergency?

(90) When and how do employers refer employees for medical treatment or seek medical treatment for them when experiencing a heat-illness emergency?

Employers informing employees of the hazards to which employees may be exposed while working is a cornerstone of occupational health and safety (OSHA, 2017). Training is an effective tool to reduce injury and illness (Burke et al., February 2006). Employees must know what protective measures are being utilized and be trained in their use so that those measures can be effectively implemented. Training and education provide employees and managers an increased understanding of existing safety and health programs. Training provides managers, supervisors, and employees with the knowledge and skills needed to do their work safely, as well as awareness and understanding of workplace hazards and how to identify, report, and control them.

Because OSHA has long recognized the importance of training in ensuring employee safety and health, many OSHA standards require employers to train employees ( e.g., the Bloodborne Pathogen standard at 29 CFR 1910.1030(g)(2)). When required as a part of OSHA standards, training helps to ensure that employees can conduct work safely and healthfully (OSHA, April 28, 2010). Training is essential to ensure that both employers and employees understand the sources of potential exposure to hazardous heat, control measures to reduce exposure to the hazard, signs and symptoms of heat-related illness, and how to respond in the event of an emergency. A 2018 analysis of OSHA enforcement investigations of 66 heat-related illnesses showed that nearly two-thirds of the employers did not provide employees with training on occupational heat-related illness (Tustin et al., August 2018).

The following questions are intended to solicit information, relevant data sources, and considerations to further assess existing worker training and engagement programs and their effectiveness for preventing occupational heat injury and illness.

(91) How do employers currently involve workers in heat injury and illness prevention?

(92) What types of occupational heat injury and illness prevention training programs have been implemented and how effective are they? What is the scope and format of these training programs? Are workers in non-traditional/multi-employer work arrangements included in these training programs?

(93) What are best practices in worker training and engagement in heat injury and illness prevention?

(94) How do employers involve workers in the design and implementation of heat injury and illness prevention activities?

(95) What challenges are there with worker training and engagement for heat injury and illness prevention?

OSHA also seeks information on the costs, economic impacts, and benefits of heat injury and illness prevention practices. In addition to information regarding the costs and economic impacts of heat injury and illness prevention practices, OSHA is interested in the benefits of such practices in terms of reduced injuries, illnesses, deaths, and compromised operations ( i.e., emotional distress, staffing turnover, and unexpected reallocation of resources), as well as any other productivity effects. As discussed above in Part I of this ANPRM, millions of workers across hundreds of occupations are likely to be exposed to conditions that could lead to heat-related injury, illness, and death.

The effects of heat-related injury and illness can be significant to employers and workers alike. They harm workers financially, physically, and mentally, and employers also bear several costs and reduced revenue. A single serious injury or illness can lead to workers' compensation losses of thousands of dollars, along with thousands of dollars in additional costs for overtime, temporary staffing, or recruiting and training a replacement. Even if a worker does not have to miss work, heat stress can still lead to higher turnover and deterioration of productivity and morale.Globally, the International Labour Organization (ILO) has estimated that increased heat stress could result in a productivity decline by the equivalent of 80 million full-time jobs by the year 2030 (ILO, 2019).

According to BLS, as shown below in Table IV.A.1, exposure to environmental heat results in thousands of injury and illness cases and dozens of deaths per year (BLS, December 22, 2020 and BLS, January 28, 2021). Note that these data do not provide a comprehensive account of the number of heat-related injuries and fatalities, for a variety of reasons, such as employee reluctance to report and lack of awareness of the contributing effects of heat to symptoms.

The following questions are intended to solicit information on the topics covered in this section.

(96) OSHA requests any workers' compensation data related to heat-related injury and illness. Any other information on your workplace's experience would also be appreciated.

(97) Are there additional data (other than workers' compensation data) from published or unpublished sources that describe or inform about the incidence or prevalence of heat-related injuries, illness, or fatalities in particular occupations and industries?

(98) What are the potential economic impacts associated with the promulgation of a standard specific to the risk of heat-related injury and illness? Describe these impacts in terms of benefits, including reduction of incidents; effects on costs, revenue, and profit; and any other relevant impact measurements.

(99) If you utilize the WBGT method when making your work determinations, what were the costs of any associated equipment and/or training to implement this measurement method?

(100) If you utilize a temperature metric other than WBGT when making work determinations, what were the costs associated with measurement and/or training to implement this measurement method?

(101) Have you instituted programs or policies directed at mitigating heat-related injury and illness at your worksite? If so, what were the resulting benefits?

(102) If you have implemented a heat injury and illness program or policy, what was the cost of implementing the program or policy, in terms of both time and expenditures for supplies and equipment? Please describe in detail the resource requirements and associated costs expended to initiate the program(s) and to conduct the program(s) annually. If you have any other estimates of the costs of preventing or mitigating heat-related injury and illness, please provide them. It would be helpful to OSHA to learn both overall totals and specific components of the program ( e.g., cost of equipment, equipment installation, equipment maintenance, training programs, staff time, facility redesign).

a. What are the ongoing operating and maintenance costs for the program?

b. Has your program reduced incidents of heat-related injury and illness and by how much? Can you identify which elements of your program most reduced incidents? Which elements did not seem effective?

c. Has your program reduced direct costs for your facility ( e.g., workers' compensation costs, fewer lost workdays)? Please quantify these reductions, if applicable.

d. Has your program reduced indirect costs for your facility ( e.g., reductions in absenteeism and worker turnover; increases in reported productivity, satisfaction, and level of safety in the workplace)?

(103) Do you provide wearable devices (specific to heat) to workers? Does each worker get a device or only specific members of the crew?

a. If wearables are provided, what were the associated upfront costs of the equipment and how often do they need to be replaced?

b. Which specific wearable did you choose? What were your deciding factors ( i.e., price, ease of use)?

(104) If you are in a state with standards requiring programs and/or policies to reduce heat stress, how did implementing the program and/or policy affect the facility's budget and finances?

(105) What changes, if any, in market conditions would reasonably be expected to result from issuing a standard on heat stress prevention? Describe any changes in market structure or concentration, and any effects on the prices of products and services to consumers, that would reasonably be expected from issuing such a standard.

(106) If you have implemented acclimatization practices in your workplace, were there any associated costs?

(107) How does your workplace address the costs of any rest breaks necessary to prevent heat-related injury and illness?

As part of the agency's consideration of a heat stress standard, OSHA is concerned about whether its actions will have a significant economic impact on a substantial number of small entities. Small entities included small businesses, small non-profit organizations, and small governmental jurisdictions with a population of less than 50,000. These other small employer organizations may experience heat stress issues in much the same manner as small businesses. Injury and illness incidence rates are known to vary by establishment size. In the construction industry, for example, across all nonfatal occupational injuries and illnesses, establishments between 11 and 49 employees had an average incidence rate of 3.3 per 100 Full Time Equivalent (FTE) workers, whereas establishments with 1,000 or more employees had an average incidence rate of 0.9 per 100 FTE workers. (BLS, August 31, 2021). If the agency pursues the development of a standard that would have such impacts on small businesses, OSHA is required to develop a regulatory flexibility analysis and convene a Small Business Advocacy Review panel under the Small Business Regulatory Enforcement Fairness Act (before publishing a proposed rule (see Regulatory Flexibility Act, 5 U.S.C. 601 et seq. )). Regardless of the significance of the impacts, OSHA seeks ways of minimizing the burdens on small businesses consistent with OSHA's statutory and regulatory requirements and objectives.

The following questions are intended to solicit information on the topics covered in this section.

(108) How many, and what type of small firms, or other small entities, have heat-related injury and illness training, or a heat injury and illness program, and what percentage of their industry (NAICS code) do these entities comprise? Please specify the types of heat stress risks employees in these firms face.

(109) How, and to what extent, would small entities in your industry be affected by a potential OSHA standard to prevent heat stress? Do special circumstances exist that make preventing heat stress more difficult or more costly for small entities than for large entities? Please describe these circumstances.

(110) How many, and in what type of small entities, is heat-related injury and illness a threat, and what percentage of their industry (by NAICS codes) do these entities comprise?

(111) Are there alternative regulatory or non-regulatory approaches OSHA could use to mitigate possible impacts on small entities?

(112) For very small entities (historically defined by OSHA as those with fewer than 20 employees), what types of heat-related injury and illness threats are faced by workers? Does your experience with heat-related injury and illness reflect the lower rates reported by BLS?

(113) For very small entities, what are the unique challenges establishments face in addressing heat-related injury and illness?

(114) If you are in a jurisdiction with standards requiring programs and/or policies to reduce heat stress, how did implementing the program and/or policy affect your small entity or other small entities in your jurisdiction?

James S. Frederick, Acting Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC 20210, authorized the preparation of this document pursuant to the following authorities: 29 U.S.C. 653, 655, and 657, Secretary's Order 8-2020 (85 FR 58393; Sept. 18, 2020), and 29 CFR part 1911.

On December 21, 2018, the Coast Guard published a notice of study and request for comments for the Port Access Route Study: Alaskan Artic Coast (83 FR 65701). The comment period in that document closed September 1, 2019. On September 4, 2019 (84 FR 46501), the Coast Guard published a document extending the public comment period until January 30, 2020. On January 13, 2020 (85 FR 1793), the Coast Guard published a document extending the public comment period until June 30, 2020. On July 6, 2020 (85 FR 40155), the Coast Guard published a document reopening the public comment period until September 30, 2021. In this action, the Coast Guard is providing notice that the public comment period is reopened until March 31, 2022. The Coast Guard has reopened the comment period to provide adequate opportunity for public meetings in impacted Arctic communities, given COVID-19 impacts to travel. These discussions are vital to the Port Access Route Study and necessary to creating a well-informed proposal. The Port Access Route Study remains a high priority for the Coast Guard, critical to maintaining waterway safety in the Arctic. Documents mentioned in this notification, and all public comments, are in our online docket at https://www.regulations.gov and can be viewed by searching the docket number “USCG-2018-1058”.

This notification is issued under authority of 33 U.S.C. 1223(c) and 5 U.S.C. 552.

On September 29, 2021, the U.S. Copyright Office issued a notice of proposed rulemaking (“NPRM”) regarding initiating proceedings before the Copyright Claims Board (“CCB”). The Office solicited public comments on a broad range of procedures governing the initial stages of a CCB proceeding, including filing the initial claim, opting out of a proceeding, and filing a response and any counterclaims.

To ensure that members of the public have sufficient time to comment, and to ensure that the Office has the benefit of a complete record, the Office is extending the deadline for the submission of initial comments to no later than 11:59 p.m. Eastern Time on November 12, 2021. The Office is also extending the deadline for the submission of reply comments to no later than 11:59 p.m. Eastern Time on November 30, 2021.

Under section 109 of the Clean Air Act (CAA), EPA has established NAAQS for certain pervasive air pollutants (referred to as “criteria pollutants”) and conducts periodic reviews of the NAAQS to determine whether they should be revised or whether new NAAQS should be established.

Under the CAA, EPA must establish a NAAQS for SO 2 . SO 2 is primarily released to the atmosphere through the burning of fossil fuels by power plants and other industrial facilities. SO 2 is also emitted from industrial processes including metal extraction from ore and heavy equipment that burn fuel with a high sulfur content. Short-term exposure to SO 2 can damage the human respiratory system and increase breathing difficulties. Small children and people with respiratory conditions, such as asthma, are more sensitive to the effects of SO 2 . Sulfur oxides at high concentrations can also react with compounds to form small particulates that can penetrate deeply into the lungs and cause health problems.

EPA first established primary, health-based SO 2 standards in 1971 at 0.14 parts per million (ppm) over a 24-hour averaging period and 0.3 ppm over an annual averaging period (36 FR 8186, April 30, 1971). In June 2010, EPA revised the NAAQS for SO 2 to provide increased protection of public health, providing for revocation of the 1971 primary annual and 24-hour SO 2 standards for most areas of the country following area designations under the new NAAQS. 1 The 2010 NAAQS is 75 parts per billion (ppb) (equivalent to 0.075 ppm) over a 1-hour averaging period (75 FR 35520, June 22, 2010). A violation of the 2010 1-hour SO 2 NAAQS occurs when the annual 99th percentile of ambient daily maximum 1-hour average SO 2 concentrations, averaged over a 3-year period, exceeds 75 ppb. 2

Following promulgation of any new or revised NAAQS, EPA is required by CAA section 107(d) to designate areas throughout the nation as attaining or not attaining the NAAQS. On August 5, 2013, EPA finalized its first round of designations for the 2010 primary SO 2 NAAQS (78 FR 47191). In the 2013 action, EPA designated 29 areas in 16 states as nonattainment for the 2010 SO 2 NAAQS, including the Detroit area in Michigan and the Rhinelander area in Wisconsin. 3 EPA's initial round of designations for the 2010 SO 2 NAAQS, including the Detroit and Rhinelander areas, became effective on October 4, 2013. Pursuant to CAA sections 172(a)(2) and 192(a), the maximum attainment date for the Detroit and Rhinelander areas was October 4, 2018, five years after the effective date of the final action designating each area as nonattainment for the 2010 SO 2 NAAQS.

For a number of nonattainment areas, including the Detroit area, EPA published an action on March 18, 2016, effective April 18, 2016, finding that Michigan and other pertinent states had failed to submit the required SO 2 nonattainment plan by the submittal deadline (81 FR 14736). Under CAA section 110(c), the finding triggered a requirement that EPA promulgate a Federal implementation plan (FIP) within two years of the finding unless, by that time (a) the state had made the necessary complete submittal and (b) EPA had approved the submittal as meeting applicable requirements. Michigan submitted a complete nonattainment plan on May 31, 2016 and submitted associated final enforceable measures on June 30, 2016. However, on March 19, 2021, EPA partially approved and partially disapproved Michigan's SO 2 plan as submitted in 2016 (86 FR 14827). Therefore, the FIP clock was not stopped. EPA disapproved the attainment demonstration, in part because it relied on an invalidated rule (Michigan Administrative Code 336.1430) that was no longer enforceable. EPA also disapproved the plan for failing to meet the requirements for meeting reasonable further progress (RFP) toward attainment of the NAAQS, reasonably available control measures and reasonably available control technology (RACM/RACT), and contingency measures. To date, Michigan has not submitted an approvable plan for the Detroit area, and EPA is currently working on a FIP.

For the Rhinelander area, Wisconsin submitted a nonattainment plan on January 22, 2016, and supplemented it on July 18, 2016, and November 29, 2016. On March 23, 2021, EPA partially approved and partially disapproved Wisconsin's Rhinelander SO 2 plan as submitted and supplemented in 2016 (86 FR 15418). EPA disapproved the attainment demonstration for failing to comply with EPA's stack height regulations. Additionally, EPA disapproved the plan for failing to meet the requirements for meeting RFP toward attainment of the NAAQS, RACM/RACT, emission limitations and control measures as necessary to attain the NAAQS, and contingency measures. Under CAA section 110(c), the partial disapproval triggered a requirement that EPA promulgate a FIP within two years of the finding unless, by that time (a) the state had made the necessary complete submittal and (b) EPA had approved the submittal as meeting applicable requirements. On March 29, 2021, Wisconsin submitted a permit containing a more stringent emission limit for Ahlstrom-Munksjö's Rhinelander facility, the main SO 2 source in the area, along with supplemental information in order to remedy the plan's deficiencies specified in EPA's March 23, 2021 rulemaking. EPA proposed to approve Wisconsin's revised plan for the Rhinelander SO 2 nonattainment area on July 22, 2021 (86 FR 38643).

On August 6, 2020, the Center for Biological Diversity, the Center for Environmental Health, and the Sierra Club filed a complaint in the United States District Court (amended October 29, 2020), alleging that EPA failed to perform certain non-discretionary duties in accordance with the CAA, including to make timely findings that the Detroit and Rhinelander areas attained the 2010 SO 2 NAAQS by the attainment date. Under court order, EPA must determine whether Detroit and Rhinelander areas have attained the SO 2 NAAQS by January 31, 2022. The court order provides that if a covered nonattainment area is redesignated to attainment before the applicable deadline for EPA's determination, then EPA's duty to make the determination for that area is automatically terminated. Therefore, EPA may not finalize this action if either area is redesignated to attainment of the 2010 SO 2 NAAQS before January 31, 2022.

Section 179(c)(1) of the CAA requires EPA to determine whether a nonattainment area attained an applicable standard by the applicable attainment date based on the area's air quality as of the attainment date. In determining the attainment status of SO 2 nonattainment areas, EPA may consider ambient monitoring data, air quality dispersion modeling, and/or a demonstration that the control strategy in the SIP has been fully implemented. 4

Under EPA regulations in 40 CFR 50.17 and in accordance with 40 CFR part 50, appendix T, the 2010 1-hour annual SO 2 standard is met at a monitoring site when the design value is less than or equal to 75 ppb. Design values are calculated by computing the three-year average of the annual 99th percentile daily maximum 1-hour average concentrations. 5 When calculating 1-hour primary standard design values, the calculated design values are rounded to the nearest whole number or 1 ppb by convention. A SO 2 1-hour primary standard design value is valid if it encompasses three consecutive calendar years of complete monitoring data or modeling data.

The determination of failure to attain for the Detroit area was based on air quality dispersion modeling, using actual and allowable emissions from the most recent three complete calendar years, prior to the attainment date of October 4, 2018 ( i.e., from 2015-2017).

As previously noted, EPA may consider air quality dispersion modeling in addition to monitoring data when determining the attainment status of SO 2 nonattainment areas. EPA's 2014 SO 2 Guidance states that “[i]f the EPA determines that the air quality monitors located in the affected area are located in the area of maximum concentration, the EPA may be able to use the data from these monitors to make the determination of attainment without the use of air quality modeling data.”  6 Although all the monitors in the Detroit area are showing values below the NAAQS, EPA may not use the monitoring data for this proposed determination of failure to attain because the modeling results show that the monitors are not in the area of maximum ambient SO 2 concentration. The modeling data show that SO 2 concentrations near the monitors are below the NAAQS while showing concentrations that violate the NAAQS at other modeling receptors in the Detroit area.

EPA's modeling requirements to support SIP attainment demonstrations are specified by regulation in appendix W of 40 CFR part 51 ( Guideline on Air Quality Models ), as referenced by 40 CFR 51.112. Additionally, specific SO 2 modeling guidance can be found in EPA's document titled, “SO 2 NAAQS Designations Modeling Technical Assistance Document” (Modeling TAD), which was most recently updated in August 2016. EPA conducted a modeling demonstration, based on guidelines from appendix W and the Modeling TAD, that contained an assessment of the air quality impacts from the following sources: U.S. Steel Ecorse, U.S. Steel Zug Island, EES Coke, DTE Energy (DTE) River Rouge, DTE Trenton Channel, Carmeuse Lime, DTE Monroe, Severstal Steel, Dearborn Industrial Generation (DIG), and Marathon Refinery.

EPA's Modeling TAD notes that for area designations under the 2010 SO 2 NAAQS, the American Meteorological Society/Environmental Protection Agency Regulatory Model (AERMOD) modeling system should be used, unless use of an alternative model can be justified. In some instances, the recommended model may be a model other than AERMOD, such as the BLP model for buoyant line sources. The AERMOD modeling system contains the following components: AERMOD (the dispersion model), AERMAP (the terrain processor for AERMOD), AERMET (the meteorological data processor for AERMOD), BPIPPRIME (the building input processor), AERMINUTE (a pre-processor to AERMET incorporating 1-minute automated surface observation system (ASOS) wind data), AERSURFACE (the surface characteristics processor for AERMET), and AERSCREEN (a screening version of AERMOD).

EPA conducted its air dispersion modeling demonstration with AERMOD, the preferred model for this application. EPA used version 19191 of AERMOD, which was the most recent version at that time.

EPA's recommended procedure for characterizing an area by prevalent land use is based on evaluating the dispersion environment within 3 kilometers of the facility. According to EPA's modeling guidelines contained in documents such as the Modeling TAD, rural dispersion coefficients are to be used in the dispersion modeling analysis if more than 50% of the area within a 3 kilometer radius of the facility is classified as rural. Conversely, if more than 50% of the area is urban, urban dispersion coefficients should be used in the modeling analysis.

Although EPA's modeling guidelines recommend that areas such as Detroit should be modeled using urban dispersion coefficients, it was found that using urban dispersion coefficients caused the model to overpredict monitored concentrations by 2-3 times due to emissions from the tall stacks becoming trapped in the nighttime boundary layer. Section 5.1 of the AERMOD Implementation Guide  7 describes how prior to AERMOD version 15181, the application of the urban option on tall stacks in small to moderate size urban areas may have limited the plume height resulting in high concentrations. While this issue was mitigated beginning with bug fixes in version 15181 of AERMOD, a model to monitor comparison conducted by EPA determined that modeled concentrations at the monitor receptor locations correlated with monitoring concentrations when the tall stacks were modeled with the rural dispersion option instead of urban. In addition, peak monitored concentrations occur during the daytime. When modeling the tall stacks with the rural dispersion option the peak modeled concentrations occurred during the daytime hours, while using the urban option resulted in peak modeled concentrations during the nighttime hours. Therefore, the rural dispersion option was used for the tall stacks at EES Coke, DTE River Rouge, DTE Trenton Channel, and DTE Monroe, and the urban dispersion option was used for the remaining modeled sources with a population of 1,000,000.

EPA believes that a reasonable first step towards characterization of air quality in the Detroit area is to determine the extent of the area of analysis, i.e., receptor grid. Considerations presented in the Modeling TAD include but are not limited to: The location of the SO 2 emission sources or facilities considered for modeling; the extent of significant concentration gradients of nearby sources; and sufficient receptor coverage and density to adequately capture and resolve the model predicted maximum SO 2 concentrations.

For the Detroit area modeling analysis, a uniform Cartesian receptor grid was used with receptor spacing of 100 meters throughout the modeled domain. The receptor network contained 5,432 receptors and covered 12 kilometers by 12 kilometers area over the city of Detroit. EPA determined that this was the appropriate distance in order to adequately characterize air quality from the sources in the Detroit area which may have a potential impact in the area of analysis where maximum concentrations of SO 2 are expected.

EPA characterized the sources within the area of analysis in accordance with practices outlined as acceptable in the Modeling TAD. Specifically, EPA used actual stack heights in conjunction with actual or allowable emissions. EPA also adequately characterized the sources' building layouts and locations, as well as the stack parameters, e.g., exit temperature, exit velocity, location, and diameter.

Guidance on modeling SO 2 actual emissions is provided in section 5.2 of EPA's Modeling TSD. EPA believes that continuous emissions monitoring systems (CEMS) data provide acceptable historical emissions information when it is available and that these data are available for many electric generating units. The Modeling TAD also provides for the flexibility of using allowable emissions.

EPA ran AERMOD using 2015-2017 actual average CEMS emissions data for DTE River Rouge and Trenton Channel, and 2016 actual emissions data for U.S. Steel, the source with the most significant contribution to the maximum NAAQS violations in the area, from Michigan's annual emissions database. Table 1 shows the actual emissions used for this analysis.

For EES Coke, Carmeuse Lime, DTE Monroe, Severstal Steel, DIG, and Marathon Refinery in the area of analysis, EPA modeled the facilities using the most recent federally enforceable allowable limits for SO 2 . The facilities in EPA's area of analysis and their associated allowable rates are summarized in Table 2 below.

As noted in the Modeling TAD, the selection of meteorological data should be based on spatial and climatological (temporal) representativeness. The representativeness of the data are based on: (1) The proximity of the meteorological monitoring site to the area under consideration, (2) the complexity of terrain, (3) the exposure of the meteorological site, and (4) the period of time during which data are collected. Sources of meteorological data include National Weather Service stations, site-specific or onsite data, and other sources such as universities, the Federal Aviation Administration, and military stations.

EPA used the Detroit Metropolitan Wayne County Airport's meteorological surface data and the White Lake meteorological upper air data for the years 2013-2017 for modeling the Detroit area. This meteorological data set was processed by Michigan and obtained from its website.

Meteorological data from the above surface and upper air stations were used in generating AERMOD-ready files with the AERMET processor. The output meteorological data created by the AERMET processor is suitable for being applied with AERMOD input files for AERMOD modeling runs. EPA followed the methodology and settings presented in appendix W in the processing of the raw meteorological data into an AERMOD-ready format and used AERSURFACE to best represent surface characteristics.

The terrain in the area of analysis is best described as generally flat. To account for these terrain changes, the AERMAP terrain program within AERMOD was used to specify terrain elevations for all the receptors. The source of the elevation data incorporated into the model was the U.S. Geological Survey National Elevation Database.

The Modeling TAD offers two mechanisms for characterizing background concentrations of SO 2 that are ultimately added to the modeled design values: (1) A “first tier” approach, based on monitored design values, or (2) a temporally varying approach, based on the 99th percentile monitored concentrations by hour of day and season or month. For the Detroit area modeling analysis, hourly SO 2 data from 2015-2017 at the Allen Park monitor, which is approximately 17 kilometers southwest of Detroit, along with Allen Park wind data was used to generate Season/Hour-of-Day concentrations. Monitored concentrations associated with wind directions between and including 40 to 205 degrees were excluded to avoid concentrations associated with sources explicitly modeled in the demonstration. The Season/Hour-of-Day background concentrations for this area of analysis were determined by EPA to be between 0.9 and 13.2 ppb, and these values were incorporated into the final AERMOD results.

EPA's modeling analysis indicated that the highest predicted 3-year average 99th percentile 1-hour average concentration within the chosen modeling domain is 139 ppb or 363.3 micrograms per cubic meter. The AERMOD analysis included an output unit factor of 381,680 to convert the model results from grams per second to ppb. This modeled concentration included the background concentration of SO 2 , and is based on actual and allowable emissions from the facilities in the Detroit area.

For an area to attain the 2010 SO 2 NAAQS by the October 4, 2018 attainment date, the design value based upon modeled actual and allowable air quality data from 2015-2017 at the area of maximum ambient SO 2 concentration must be equal to or less than 75 ppb for the 1-hour standard. EPA's modeling results show that the maximum modeled design concentration in the Detroit area exceeds 75 ppb. Therefore, based on modeled actual and allowable emissions for the 2015-2017 period, EPA is proposing to determine that the Detroit area failed to attain the 2010 1-hour SO 2 standard by the October 4, 2018 attainment date.

The determination of failure to attain for the Rhinelander area was based upon the most recent three complete calendar years, prior to the attainment date of October 4, 2018, of complete, quality-assured measured data gathered at an established state and local air monitoring station (SLAMS) in the nonattainment area and entered into EPA's Air Quality System (AQS) database. 8 A year is considered complete when all four quarters are complete, and a quarter is complete when at least 75 percent of the sampling days are complete. A sampling day is considered complete if 75 percent of the hourly concentration values are reported; this includes data affected by exceptional events that have been approved for exclusion by the Administrator. 9 Data from ambient air monitors operated by state and local agencies in compliance with EPA monitoring requirements must be submitted to AQS. 10 Monitoring agencies annually certify that these data are accurate to the best of their knowledge. 11 All data are reviewed to determine the area's air quality status in accordance with 40 CFR part 50, appendix T.

With regard to the use of monitoring data for determining the attainment status of SO 2 nonattainment areas, EPA's 2014 SO 2 Guidance specifically notes that “[i]f the EPA determines that the air quality monitors located in the affected area are located in the area of maximum concentration, the EPA may be able to use the data from these monitors to make the determination of attainment without the use of air quality modeling data.”  12 This language might be read to suggest that EPA must always assess whether the air quality monitors in the affected area are located in the area of maximum concentration prior to using monitoring data to determine an SO 2 nonattainment area's attainment status. However, this language was intended to refer to a situation where EPA is considering making a determination that the area has attained the NAAQS based on a finding that all of the monitoring sites within the affected area had an attaining design value for the relevant period. As described in section II.B of this action, in this instance, the monitoring site in the Rhinelander area did not have attaining design values for the relevant period. Consequently, even if the monitoring sites are not located in the area of maximum concentration, any monitors that would be located in the area of maximum concentration could not record concentrations lower than those recorded at the existing monitor at the Rhinelander site. Accordingly, since the Rhinelander Tower monitor design value for the 2015-2017 period was above the NAAQS, it is not necessary to consider whether the monitor is located in the area of maximum concentration in order to determine that the Rhinelander area did not attain the 2010 SO 2 NAAQS by the October 4, 2018 attainment date.

Section 110(a)(2)(B)(i) of the CAA requires states to establish and operate air monitoring networks to compile data on ambient air quality for all criteria pollutants. EPA's monitoring requirements are specified by regulation in 40 CFR part 58. These requirements are applicable to state, and where delegated, local air monitoring agencies that operate criteria pollutant monitors.

In section 4.4 of appendix D to 40 CFR part 58, EPA specifies minimum monitoring requirements for SO 2 to operate at SLAMS. SLAMS produce data that are eligible for comparison with the NAAQS, and therefore, the monitor must be an approved Federal reference method (FRM), Federal equivalent method (FEM), or approved regional method (ARM) monitor.

The minimum number of required SO 2 SLAMS is described in sections 4.4.2 and 4.4.3 of appendix D to 40 CFR part 58. According to section 4.4.2, the minimum number of required SO 2 monitoring sites is determined by the population weighted emissions index for each state's core based statistical area. Section 4.4.3 describes additional monitors that may be required by an EPA regional administrator.

Under 40 CFR 58.10, states are required to submit annual monitoring network plans (AMNP) for ambient air monitoring networks for approval by EPA. Within the Rhinelander area, Wisconsin is responsible for ensuring that the area meets air quality monitoring requirements. Wisconsin submits annual monitoring network plans to EPA that describe the various monitoring sites that it operates. 13 Each AMNP discusses the status of the air monitoring network as required under 40 CFR 58.10 and addresses the operation and maintenance of the air monitoring network in the previous year. EPA regularly reviews these AMNPs for compliance with the applicable reporting requirements in 40 CFR part 58. 14

EPA also conducts regular “technical systems audits” (TSAs) during which EPA reviews and inspects ambient air monitoring programs to assess compliance with applicable regulations concerning the collection, analysis, validation, and reporting of ambient air quality data. 15 As part of its 2018 TSA of Wisconsin, EPA required Wisconsin to prepare and submit a corrective action plan, and EPA accepted Wisconsin's TSA finding response forms in 2019. 16

During the 2015-2017 data period, Wisconsin operated one SO 2 SLAMS in the Rhinelander area: Rhinelander Tower monitor (AQS ID 55-085-0996). The Rhinelander Tower monitor site is located at 434 High Street under the Rhinelander municipal water tower. The primary monitor at this site is an FEM monitor.

Based on EPA's review of Wisconsin's AMNPs for the years 2016-2018  17 and the 2018 TSA of Wisconsin's monitoring program, EPA proposes to find that the monitoring network in the Rhinelander area is adequate for the purpose of collecting ambient SO 2 concentration data for use in determining whether the nonattainment area attained the 2010 SO 2 NAAQS by the October 4, 2018 attainment date.

Under 40 CFR 58.15, monitoring agencies must certify, on an annual basis, data collected at all SLAMS and at all FRM, FEM, and ARM special purpose monitor stations that meet EPA quality assurance requirements. In doing so, monitoring agencies must certify that the previous year of ambient concentration and quality assurance data are completely submitted to AQS and that the ambient concentration data are accurate to the best of their knowledge. Wisconsin annually certifies that the data it submits to AQS are quality assured, including data collected by Wisconsin at the monitoring site in the Rhinelander area.

For the Rhinelander area, for reasons discussed in section I.B of this action, the applicable attainment date was October 4, 2018. In accordance with appendix T to 40 CFR part 50, determinations of SO 2 NAAQS compliance are based on three consecutive calendar years of data. To determine the air quality as of the attainment date in the Rhinelander area, EPA must review the data collected during the three calendar years immediately preceding the attainment date, or January 1, 2015-December 31, 2017.

The SO 2 data for the Rhinelander area from January 1, 2015-December 31, 2017, have been certified by Wisconsin. EPA has also evaluated the completeness of these data in accordance with the requirements of 40 CFR part 50, appendix T. The data collected by Wisconsin meet the quarterly completeness criterion for all 12 quarters in the three calendar years preceding the attainment date at the Rhinelander Tower SO 2 monitoring site.

The 1-hour SO 2 design values at the Rhinelander Tower monitor for the 2015-2017 period are presented in Table 3. Table 3 demonstrates that the 1-hour SO 2 design values for the 2015-2017 period are greater than 75 ppb at the eligible monitoring site.

The data in Table 3 demonstrates that the monitoring site in the Rhinelander area failed to attain the 2010 1-hour SO 2 NAAQS by the applicable attainment date of October 4, 2018. The 3-year design value for the Rhinelander Tower monitor was deemed valid due to meeting the criteria in 40 CFR part 50, appendix T, section 3(c)(i), which requires that “at least 75 percent of the days in each quarter of each of three consecutive years have at least one reported hourly value, and the design value calculated according to the procedures specified in section 5 is above the level of the primary 1-hour standard.”

For an area to attain the 2010 SO 2 NAAQS by the October 4, 2018 attainment date, the design value based upon monitored air quality data from 2015-2017 at each eligible monitoring site must be equal to or less than 75 ppb for the 1-hour standard. Table 3 shows that the design value at the monitoring site in the Rhinelander area exceeds 75 ppb. Therefore, based on quality-assured and certified data for the 2015-2017 data period, EPA is proposing to determine that the Rhinelander area failed to attain the 2010 1-hour SO 2 standard by the October 4, 2018 attainment date.

The consequences for SO 2 nonattainment areas for failing to attain the standards by the applicable attainment date are set forth in CAA section 179(d). Under section 179(d), a state must submit a SIP revision for the area meeting the requirements of CAA sections 110 and 172, the latter of which requires, among other elements, a demonstration of attainment and reasonable further progress and contingency measures. In addition, under CAA section 179(d)(2), the SIP revision must include such additional measures as EPA may reasonably prescribe, including all measures that can be feasibly implemented in the area in light of technological achievability, costs, and any non-air quality and other air quality-related health and environmental impacts. The state is required to submit the SIP revision within one year after EPA publishes a final action in the Federal Register determining that the nonattainment area failed to attain the SO 2 NAAQS.

On March 19, 2021 (86 FR 14827), and March 23, 2021 (86 FR 15418), EPA published actions partially disapproving the 2010 SO 2 attainment plans for the Detroit and Rhinelander areas, respectively, as submitted and supplemented in 2016. Although final findings of failure to attain will not eliminate each state's obligation to address the disapproved elements of its prior plan submittal, EPA anticipates that the submission of a new, approvable attainment plan in response to these findings would also satisfy these obligations for Michigan and Wisconsin.

On July 22, 2021 (86 FR 38643), EPA proposed to approve Wisconsin's revised plan, submitted to EPA on March 29, 2021. If EPA takes final action to approve that revised SIP submission from Wisconsin, EPA is proposing to find that the State has also satisfied the requirement to submit a SIP revision to address the finding, if finalized, that the area failed to timely attain the 2010 SO 2 NAAQS.

Under CAA sections 179(d)(3) and 172(a)(2), the new attainment date for each nonattainment area is the date by which attainment can be achieved as expeditiously as practicable, but no later than five years after EPA publishes a final action in the Federal Register determining that the nonattainment area failed to attain the SO 2 NAAQS. In the meantime, EPA's FIP obligations for both the Detroit and Rhinelander areas remain in force, and this finding, if finalized, would not negate EPA's FIP deadlines. For the Detroit area, the statutory deadline for EPA to promulgate a FIP has passed, and EPA is actively working on a FIP.

In addition to triggering requirements for a new SIP submittal, a final determination that a nonattainment area failed to attain the NAAQS by the attainment date would trigger the implementation of contingency measures adopted under 172(c)(9).

EPA is proposing under CAA section 179(c)(1) to determine that the Detroit and Rhinelander areas failed to attain the 2010 1-hour SO 2 standard by the applicable attainment date of October 4, 2018. If finalized as proposed, Michigan and Wisconsin would be required under CAA section 179(d) to submit revisions to the SIP for the Detroit and Rhinelander SO 2 nonattainment areas, respectively. The required SIP revision for each area must, among other elements, demonstrate expeditious attainment of the standards within the time period prescribed by CAA section 179(d). If finalized as proposed, the SIP revisions required under CAA section 179(d) would be due for submittal to EPA no later than one year after the publication date of the final action. However, for the Rhinelander area, if EPA approves the recently revised SIP submission submitted by the State of Wisconsin, EPA is proposing to treat that submission as satisfying the requirement to submit revisions to the SIP to address the failure to timely attain the 2010 SO 2 NAAQS.

EPA is soliciting public comments on the issues discussed in this action. EPA will accept comments from the public on this proposal for the next 30 days and will consider these comments before taking final action.

Additional information about these statutes and Executive Orders can be found at https://www2.epa.gov/laws-regulations/laws-and-executive-orders.

This action is not a significant regulatory action and therefore was not submitted to the Office of Management and Budget (OMB) for review.

This action does not impose an information collection burden under the provisions of the PRA because it does not contain any information collection activities.

EPA certifies that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This proposed action, if finalized, would require the State to adopt and submit SIP revisions to satisfy CAA requirements and would not itself directly regulate any small entities.

This action does not contain any 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. This action itself imposes no enforceable duty on any state, local, or tribal governments, or the private sector. This action proposes to determine that the Detroit and Rhinelander SO 2 nonattainment areas failed to attain the NAAQS by the applicable attainment dates. If finalized, this determination would trigger existing statutory timeframes for the State to submit SIP revisions. Such a determination in and of itself does not impose any Federal intergovernmental mandate.

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the National Government and the states, or on the distribution of power and responsibilities among the various levels of government.

This action does not have tribal implications as specified in Executive Order 13175. The proposed finding of failure to attain the SO 2 NAAQS does not apply to tribal areas, and the proposed rule would not impose a burden on Indian reservation lands or other areas where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction within the Detroit and Rhinelander SO 2 nonattainment areas. Thus, this proposed rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175.

EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that 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 proposed action is not subject to Executive Order 13045 because the effect of this proposed action, if finalized, would be to trigger additional planning requirements under the CAA. This proposed action does not establish an environmental standard intended to mitigate health or safety risks.

This proposed rule is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

This rulemaking does not involve technical standards.

EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The effect of this proposed action, if finalized, would be to trigger additional planning requirements under the CAA.

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

Section 110 of the Act requires states to develop air pollution regulations and control strategies to ensure that air quality meets the EPA's National Ambient Air Quality Standards (NAAQS). These ambient standards are established under section 109 of the Act and they currently address six criteria pollutants: Carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide. The state's air regulations are contained in its SIP, which is basically a clean air plan. Each state is responsible for developing SIPs to demonstrate how the NAAQS will be achieved, maintained, and enforced. The SIP must be submitted to the EPA for approval, and any changes a state makes to the approved SIP also must be submitted to the EPA for approval.

On December May 15, 2020, Mr. Kenneth Wagner, Secretary of Energy and Environment, submitted revisions to the Oklahoma SIP that included the annual SIP updates for 2019. The submittal included revisions to OAC 252:100, Subchapter 2 and Appendix Q to update the incorporation by reference of Federal requirements, which will be addressed in this proposal. The submittal also included revisions to OAC 252:100, Subchapter 39, to revise the regulations for control of volatile organic compounds (VOCs) in nonattainment areas and former nonattainment areas. The EPA has determined that the May 15, 2020, submitted revisions to OAC 252:100, Subchapter 39 will be addressed in a separate rulemaking. 1

On February 9, 2021, Mr. Wagner, Secretary of Energy and Environment, submitted revisions to the Oklahoma SIP that included the annual SIP updates for 2020. The submittal included revisions to OAC 252:100, Subchapter 1 to update the definitions for the Oklahoma SIP and revisions to OAC 252:100, Subchapter 2 and Appendix Q to update the incorporation by reference of Federal requirements. This proposal will address the submitted revisions to OAC 252:100-1-3, Subchapter 2 and Appendix Q. We have determined that the revisions to the statutory definitions at OAC 252:100-1-2 should be reviewed in a separate action. The submittal also included revisions to OAC 252:100, Subchapter 13, to revise the open burning regulations; Subchapters, 37, 39, and Appendix N to revise the regulations for control of VOC emissions in nonattainment areas and former nonattainment areas from aerospace industries coating operations; and revisions to Subchapters 39-49 to revise the regulations for the control of VOC emissions in nonattainment areas and former nonattainment areas from manufacturing of fiberglass reinforced plastic products. The EPA has determined that the February 9, 2021, submitted revisions to OAC 252:100, Subchapters 13, 37, 39-49, and Appendix N will be addressed in a separate rulemaking action.

The accompanying Technical Support Document for this action includes a detailed analysis of the submitted revisions to the Oklahoma SIP which are the subject of this proposed rulemaking. Our analysis indicates that the May 15, 2020, and the February 9, 2021, SIP revisions addressed in this proposed rulemaking action were developed in accordance with the CAA and the State provided reasonable notice and public hearing.

The general SIP provisions of OAC 252:100, Subchapter 1, incorporate statutory definitions at OAC 252:100-1-2 and general definitions at OAC 252:100-1-3. On February 9, 2021, the ODEQ submitted revisions to OAC 252:100-1-2 and OAC 252:100-1-3 adopted on June 25, 2020, effective September 15, 2020. The EPA is only addressing the submitted revisions to OAC 252:100-1-3 at this time.

The revisions to OAC 252:100-1-3, update the definitions used throughout the Oklahoma SIP. The revisions to the definitions of “Best available control technology” and “responsible official” and the new definition for “Title V permit” are consistent with the underlying federal requirements.

The ODEQ submitted revisions on May 15, 2020 and February 9, 2021, to update the Incorporation by Reference provisions found in the Oklahoma SIP. These revisions ensure the Oklahoma SIP maintains consistency with current federal requirements.

On May 15, 2020, the ODEQ submitted revisions to OAC 252:100-2-3 and Appendix Q that were adopted on May 28, 2019 and effective September 15, 2019. These revisions updated the incorporation by reference date in the opening paragraph of OAC 252:100-2-3 and revoked and replaced the previous version of OAC 252, Chapter 100, Appendix Q.

On February 9, 2021, the ODEQ submitted another set of revisions to OAC 252:100-2-3 and Appendix Q that were adopted on June 25, 2020, and effective September 15, 2020. The February 9, 2021, revisions updated the opening paragraph of OAC 252:100-2-3 to include the current incorporation by reference date and revoked and replaced the prior version of Appendix Q that was submitted on May 15, 2020.

Following the U.S. Supreme Court decision in McGirt v. Oklahoma , 140 S. Ct. 2452 (2020), the Governor of the State of Oklahoma requested approval under Section 10211(a) of the Safe, Accountable, Flexible, Efficient Transportation Equity Act of 2005: A Legacy for Users, Public Law 109-59, 119 Stat. 1144, 1937 (August 10, 2005) (“SAFETEA”), to administer in certain areas of Indian country (as defined at 18 U.S.C. 1151) the State's environmental regulatory programs that were previously approved by the EPA for areas outside of Indian country. The State's request excluded certain areas of Indian country further described below. In addition, the State only sought approval to the extent that such approval is necessary for the State to administer a program in light of Oklahoma Dept. of Environmental Quality v. EPA, 740 F.3d 185 (D.C. Cir. 2014). 2

On October 1, 2020, the EPA approved Oklahoma's SAFETEA request to administer all the State's EPA-approved environmental regulatory programs, including the Oklahoma SIP, in the requested areas of Indian country. As requested by Oklahoma, the EPA's approval under SAFETEA does not include Indian country lands, including rights-of-way running through the same, that: (1) Qualify as Indian allotments, the Indian titles to which have not been extinguished, under 18 U.S.C. 1151(c); (2) are held in trust by the United States on behalf of an individual Indian or Tribe; or (3) are owned in fee by a Tribe, if the Tribe (a) acquired that fee title to such land, or an area that included such land, in accordance with a treaty with the United States to which such Tribe was a party, and (b) never allotted the land to a member or citizen of the Tribe (collectively “excluded Indian country lands”).

EPA's approval under SAFETEA expressly provided that to the extent EPA's prior approvals of Oklahoma's environmental programs excluded Indian country, any such exclusions are superseded for the geographic areas of Indian country covered by the EPA's approval of Oklahoma's SAFETEA request. 3 The approval also provided that future revisions or amendments to Oklahoma's approved environmental regulatory programs would extend to the covered areas of Indian country (without any further need for additional requests under SAFETEA).

The EPA is proposing to approve revisions to the general definitions used in the Oklahoma SIP as well as updates to the incorporation by reference provisions to maintain consistency with federal requirements, which will apply statewide in Oklahoma. Consistent with the D.C. Circuit's decision in ODEQ v. EPA and with EPA's October 1, 2020 SAFETEA approval, if this approval is finalized as proposed, these SIP revisions will apply to all Indian country within the State of Oklahoma, other than the excluded Indian country lands, as described above. Because—per the State's request under SAFETEA—EPA's October 1, 2020 approval does not displace any SIP authority previously exercised by the State under the CAA as interpreted in ODEQ v. EPA, the SIP will also apply to any Indian allotments or dependent Indian communities located outside of an Indian reservation over which there has been no demonstration of tribal authority. 4

We are proposing to approve under section 110 of the CAA, revisions to the Oklahoma SIP that update the definitions relied on throughout the SIP and update the incorporation by reference dates for Federal requirements. We have determined that the revisions submitted on May 15, 2020, and February 9, 2021, were developed in accordance with the CAA and EPA's regulations, policy, and guidance for SIP development.

The EPA proposes approval of the following revisions to the Oklahoma SIP adopted on May 28, 2019, effective September 15, 2019, and submitted to the EPA on May 15, 2020:

• Revisions to OAC 252:100-2-3, Incorporation by Reference,

• Repeal of OAC 252:100, Appendix Q, and

• Adoption of new OAC 252:100, Appendix Q.

The EPA proposes approval of the following revisions to the Oklahoma SIP adopted on June 25, 2020, effective September 15, 2020, and submitted to the EPA on February 9, 2021:

• Revisions to OAC 252:100-1-3, Definitions,

• Revisions to OAC 252:100-2-3, Incorporation by Reference,

• Repeal of OAC 252:100, Appendix Q, and

• Adoption of new OAC 252:100, Appendix Q.

In this action, we are proposing to include in a final rule regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, we are proposing to incorporate by reference revisions to the Oklahoma regulations as described in the Proposed Action section above. We have made, and will continue to make, these documents generally available electronically through www.regulations.gov (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

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

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

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

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

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

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

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

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

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

This proposal to approve revisions to the Oklahoma SIP that update the definitions relied on throughout the SIP and update the incorporation by reference dates for Federal requirements as discussed more fully elsewhere in this document will apply, if finalized as proposed, to certain areas of Indian country as discussed in the preamble, and therefore has tribal implications as specified in E.O. 13175 (65 FR 67249, November 9, 2000). However, this action will neither impose substantial direct compliance costs on federally recognized tribal governments, nor preempt tribal law. This action will not impose substantial direct compliance costs on federally recognized tribal governments because no actions will be required of tribal governments. This action will also not preempt tribal law as no Oklahoma tribe implements a regulatory program under the CAA, and thus does not have applicable or related tribal laws. Consistent with the EPA Policy on Consultation and Coordination with Indian Tribes (May 4, 2011), the EPA has offered consultation to tribal governments that may be affected by this action.

On August 29, 2016, EPA finalized revised Standards of Performance for new MSW landfills and Emission Guidelines and Compliance Times for existing MSW Landfills in 40 CFR part 60, subparts XXX and Cf, respectively (81 FR 59331 and 81 FR 59275). These actions were taken in accordance with section 111 of the CAA.

Section 111(d) of the CAA requires EPA to establish a procedure for a state to submit a plan to EPA which establishes standards of performance for any existing source for any air pollutant: (1) For which air quality criteria have not been issued or which is not included on a list published under CAA section 108 or emitted from a source category which is regulated under CAA section 112, but (2) to which a standard of performance under CAA section 111 would apply if such existing source were a new source. EPA established these requirements for state plan submittals in 40 CFR part 60, subpart B. State submittals under CAA sections 111(d) must be consistent with the relevant emission guidelines, in this instance 40 CFR part 60, subpart Cf, and the requirements of 40 CFR part 60, subpart B, and 40 CFR part 62, subpart A. If the state plan is complete and approvable with reference to these requirements, EPA notifies the public, promulgates the plan pursuant to 40 CFR part 62, and delegates implementation and enforcement of the standards and requirements of the emission guidelines to the state under the terms of the state plan as published in the CFR.

On December 22, 2020, the FDEP submitted to EPA a formal section 111(d) plan for existing MSW landfills. The section 111(d) plan was submitted in response to the August 29, 2016, promulgation of Federal New Source Performance Standards (NSPS) and emission guidelines requirements for MSW landfills, 40 CFR part 60, subparts XXX and Cf, respectively (81 FR 59331 and 81 FR 59275).

On July 7, 2021, the FDEP sent EPA a letter modifying its original plan. The modifications identified in the letter involve withdrawing the initial design capacity reporting requirement in 40 CFR 60.38f(a) and the initial nonmethane organic compound emission rate reporting requirement in 40 CFR 60.38f(c). The basis for withdrawing these reporting requirements is that, prior to the effective date of the Florida plan, owners and operators of existing municipal solid waste landfills in Florida, will have already satisfied these reporting requirements under provisions in the Federal plan for existing municipal solid waste landfills. Under the Federal plan in 40 CFR part 62, subpart OOO, the deadline for submitting initial design capacity and nonmethane organic emission rate reports is September 20, 2021.

EPA has reviewed the Florida section 111(d) plan submittal in the context of the plan completeness and approvability requirements of 40 CFR part 60, subparts B and Cf, and part 62, subpart A. EPA is proposing to determine that the submitted section 111(d) plan meets the above cited requirements. The Florida state plan submittal package includes all materials necessary to be deemed administratively and technically complete according to the criteria of 40 CFR 60.27. Included within the section 111(d) plan are regulations under the Florida Administrative Code (F.A.C.) specifically, F.A.C. 62-204.800(9)(h)—“Municipal Solid Waste Landfills, 40 CFR part 60, subpart Cf, Emissions Guidelines and Compliance Times for Municipal Solid Waste Landfills that Commenced Construction, Reconstruction, or Modification on or Before July 17, 2014.” Florida houses its implementation and enforcement authority for the state plan requirements in these regulations. In this action, EPA is proposing to incorporate by reference F.A.C. 62-204.800(9)(h), which became effective in the State of Florida on June 15, 2020. A detailed explanation of the rationale behind this proposed approval is available in the Technical Support Document (TSD) included in the docket for this action.

EPA is proposing to approve the Florida section 111(d) plan for MSW landfills pursuant to 40 CFR part 60, subparts B and Cf. Therefore, EPA is proposing to amend 40 CFR part 62, subpart K, to reflect this action. This approval is based on the rationale previously discussed and in further detail in the TSD associated with this action.

The EPA Administrator continues to retain authority for approval of alternative methods to determine the nonmethane organic compound concentration or a site-specific methane generation rate constant (k), as stipulated in 40 CFR 60.30f(c).

In this document, EPA is proposing to include regulatory text that incorporates by reference the state plan. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference F.A.C. 62-204.800(9)(h), which became effective in the State of Florida on June 15, 2020. F.A.C. 62-204.800(9)(h) provides details regarding Florida's adoption of the applicability provisions, compliance times, emission guidelines, operational standards, test methods, compliance provisions, monitoring requirements, reporting guidelines, recordkeeping guidelines, specifications for active landfill gas collection systems and definitions contained in EPA's emission guidelines for existing municipal solid waste landfills (40 CFR part 60, subpart Cf). EPA has made, and will continue to make, these materials generally available through the docket for this action, EPA-R04-OAR-2021-0370, at https://www.regulations.gov and at EPA Region 4 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

In reviewing state plan submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

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

• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because this action is not significant under Executive Order 12866.

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

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

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

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

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

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

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

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

In addition, this proposed approval of Florida's State plan submittal for existing MSW landfills does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the State plan is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

The Department of the Interior Acquisition Regulations (DIAR) are in title 48, chapter 14 of the Code of Federal Regulations (48 CFR parts 1401-1499) and include regulations implementing the Buy Indian Act (25 U.S.C. 47, as amended). The Department recently reviewed the DIAR consistent with Executive Order (E.O.) 13985, Advancing Racial Equity and Support for Underserved Communities Through the Federal Government. The Department has identified various aspects of parts 1426, 1452, and 1480 that are barriers to equal opportunity for Indians and Indian Tribes in the Department of the Interior (DOI) procurement process. These barriers inhibit job creation, are ineffective at promoting maximum economic development in Indian Country, and limit Indian country from fully participating in Interior procurements subject to the Buy Indian Act.

This rule supplements the Federal Acquisition Regulation (FAR) and revises the DIAR. For this reason, the rule is issued by the Assistant Secretary for Policy, Management and Budget and follows the numbering system established by the FAR and DIAR. The DIAR was last revised in 2013 and included the addition of a new part 1480 to address acquisitions under the Buy Indian Act. See 78 FR 34266 (June 7, 2013).

This rule proposes to revise the DIAR in the following ways, as explained below: Eliminate the restriction on Indian Economic Enterprises (IEE) from competing on “covered” construction contracts issued under the Buy Indian Act; expand IEEs' ability to subcontract work subject to the Buy Indian Act consistent with other government socio-economic set-aside programs; give greater preference to IEEs; update the process and thresholds for deviations; and clarify applicability.

Interior's review of DIAR parts 1426, 1480, and 1452 identified changes in law that affect how Interior applies the Andrus v. Glover Construction Co. Supreme Court decision, 446 U.S. 608 (1980). The case has underpinned the current language of the DIAR part 1480, which restricts IEE set-asides to “covered” construction. Interior has determined that the underlying law upon which the case was decided has significantly changed since the case was decided in 1980. The decision references 41 U.S.C. 252, which was amended by The Deficit Reduction Act of 1984 (Pub. L. 98-369) and moved to 41 U.S.C. 253. Interior has reviewed 41 U.S.C. 253 as currently codified (and now reclassified to 41 U.S.C. 3301 et seq. per Pub. L. 111-315) and has determined that the “covered” construction language in the regulation is no longer required by law. Interior has removed all references to “covered” construction throughout the regulation. Removal of this language will allow for the set-aside of construction contracts to IEEs.

Since Interior proposes to remove references to “covered” construction and allow IEEs to compete for all construction contracts, Interior has identified restrictions on IEEs that exceed restrictions in other government socio-economic set-aside programs. Currently, 48 CFR 1452.280-3 restricts the ability of IEEs from subcontracting more than 50% of the work to firms other than IEEs. This rule does not change the 50% subcontract limitation for supplies and services. However, the 50% limitation is currently not consistent with FAR clause 52.219-14 Limitation on Subcontracting which has different limitations for construction awards. This rule ensures that the 48 CFR 1452.280-3 clause is consistent with the FAR 52.219-14 clause. The change will allow IEEs to subcontract up to 75% for construction by special trade contractors and 85% for general construction. Consistency with FAR clause 52.219-14 ensures equal treatment of IEEs in Federal procurement and removes subcontracting barriers for IEEs.

The proposed rule revises 48 CFR 1480.4 to clarify and simplify the preferences granted to IEEs under the Buy Indian Act. The current language of section 1480.403(b) directs Contracting Officers (CO) to solicit purchases as an unrestricted small business set-aside open to non-ISBEE firms when the CO determines two or more Indian Small Business Economic Enterprises (ISBEE) would not provide competitive offers and the CO has an approved deviation. The proposed rule would delete existing language, because it has been determined to not be fully compliant with the Buy Indian Act.

The revised section 1480.401(c) adds language that the CO will give priority to ISBEEs for all purchases subject to the Buy Indian Act. The current language of 1480.4 only gives preference to ISBEEs when the purchase is commercial or a simplified acquisition. Section 1480.401(d) adds language that if a CO determines that there is not a reasonable expectation of obtaining competitive offers, then the CO will give priority to IEEs. The updated language would also allow sole source awards to an ISBEE or IEE authorized under the FAR to be compliant with the Buy Indian Act.

Interior has determined the existing deviation process at 48 CFR 1480.403 to be burdensome in implementation and not fully compliant with the Buy Indian Act. The proposed rule clarifies the deviation process by identifying acquisitions that do not require a deviation and streamlining the actions taken after a deviation is approved. As proposed at section 1480.403(b), if a contract follows the requirements of FAR 6.3 or is subject to a previously approved deviation, the contract no longer requires an approved deviation. As proposed at section 1480.403(f), acquisitions made under an authorized deviation from the Buy Indian Act must follow the FAR and DIAR unless specified otherwise.

Other changes to the deviation process include:

• Adding section 1480.403(a) which ensures sole source awards made to IEEs or ISBEEs comply with the requirements of the Buy Indian Act and do not require a deviation;

• Adding COs as authorized to approve deviations under $25,000 at section 1480.403(c);

• Updating deviation approval thresholds in section 1480.403(c) from $550,000 to $700,000 to be consistent with changes in FAR 6.304; and

• Adding “one level above the CO” to officials authorized to approve deviations for actions exceeding $25,000 but not exceeding $700,000 in section 1480.403(c).

The proposed rule removes language referencing the Indian Self Determination and Education Assistance Act (ISDEAA) (Pub. L. 93-638) in 48 CFR 1426.70 and 1480.504(b). Contracts issued under the authority of ISDEAA are not covered under the FAR and are codified separately under 25 CFR part 900. Since the contracts under ISDEAA are not a procurement action subject to the FAR and are separately codified, there is no need to address contracts subject to ISDEAA in the DIAR. This rule specifically removes 48 CFR 1426.70, 1452.226-70, 1452.226-71, and 1480.504(b) in their entirety and removes all other references to those sections.

The Office of the Assistant Secretary—Indian Affairs will be hosting Tribal consultation and Alaska Native corporation consultation meetings addressing this rule on Wednesday, December 1, 2 p.m.-4 p.m. ET. Please register in advance at: https://www.zoomgov.com/meeting/register/vJItduyhrDsqEqErEEGizgMi5rooyGrj12s.

This proposed rule has been developed with consideration of prior rule-making comments and from experience in implementing existing regulations. Prior comments on previous proposed rules were published in the Federal Register and may be viewed there. Previous proposed rules were published on October 8, 1982 (47 FR 44678), November 15, 1984 (49 FR 45187), June 30, 1988 (53 FR 24738), September 12, 1991 (56 FR 46468), and July 26, 2012 (77 FR 43782).

1. Regulatory Planning and Review (Executive Orders 12866 and 13563). Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. OIRA has determined that this proposed rule is not significant.

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

2. Regulatory Flexibility Act. The Secretary certifies that the adoption of this proposed rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Therefore, under 5 U.S.C. 605(b), this rulemaking is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

3. Small Business Regulatory Enforcement Fairness Act. This proposed rule is not a major rule under the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2)). This rule does not have an annual effect on the economy of $100 million or more. This proposed rule will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. This proposed rule does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

4. Unfunded Mandates Reform Act. This proposed rule does not impose an unfunded mandate on State, local, or Tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or Tribal governments, or the private sector nor does the rule impose requirements on State, local, or Tribal governments. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq. ) is not required.

5. Takings (E.O. 12630). This proposed rule does not affect a taking of private property or otherwise have taking implications under Executive Order 12630. A takings implication assessment is not required.

6. Federalism (E.O. 13132). Under the criteria in section 1 of E.O. 13132, this proposed rule does not have sufficient Federalism implications to warrant the preparation of a federalism summary impact statement. It would not substantially and directly affect the relationship between the Federal and State governments. A federalism summary impact statement is not required.

7. Civil Justice Reform (E.O. 12988). This proposed rule complies with the requirements of E.O. 12988. Specifically, this rule (1) meets the criteria of section 3(a) of this E.O. requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and (2) meets the criteria of section 3(b)(2) of this E.O. requiring that all regulations be written in clear language and contain clear legal standards.

8. Consultation with Indian Tribes (E.O. 13175). The Department of the Interior strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation with Indian Tribes and recognition of their right to self-governance and Tribal sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria in E.O. 13175 and have determined there may be substantial direct effects on federally recognized Indian Tribes that will result from this rulemaking. The Department has invited Tribes by letter to consult on these proposed regulations and will hold consultation sessions with Tribes on October 15 and 20, 2021, 1 p.m. to 3 p.m. by webinar.

9. Paperwork Reduction Act, 44 U.S.C. 3501, et seq. This proposed rule requires offerors to certify whether they met the definition of an “Indian Economic Enterprise”. These statements are considered simple representations that an offeror submitted to support its claim for eligibility to participate in contract awards under the authority of the Buy Indian Act (25 U.S.C. 47, as amended). Because these statements are a simple certification or acknowledgment related to a transaction, they do not qualify as a collection of information under the Paperwork Reduction Act. See 5 CFR 1320.3(h).

10. National Environmental Policy Act. This proposed rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (NEPA) is not required because the rule is covered by the categorical exclusion listed in 43 CFR 46.210(c). We have also determined that the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.

11. Effects on the Energy Supply (E.O. 13211). This proposed rule is not a significant energy action under the definition in E.O. 13211. A Statement of Energy Effects is not required.

12. Clarity of this Regulation. We are required by Executive Orders 12866 (section 1(b)(12)), and 12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must: (1) Be logically organized; (2) use the active voice to address readers directly; (3) use common, everyday words and clear language rather than jargon; (4) be divided into short sections and sentences; and (5) use lists and tables wherever possible.

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

13. Public availability of comments. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. When submitting comments please identify what topic your comment covers from the following list:

This action is taken pursuant to delegated authority.

For the reasons set out in the preamble, the DOI proposes to amend chapter 14 of title 48 CFR as follows:

Title 50 of the Code of Federal Regulations (CFR) pertains to Wildlife and Fisheries. Chapter I, which consists of parts 1 through 199, includes regulations administered by the Service. The implementing regulations for the designation of critical habitat for listed species are located in 50 CFR part 424. Relevant definitions are at 50 CFR 424.02, and the standards and procedures for identifying critical habitat are at 50 CFR 424.12. These regulations are jointly administered by the Service and the National Marine Fisheries Service (NMFS) (collectively, the Services). On February 11, 2016, the Services issued a joint policy describing how they implement the authority to exclude areas from critical habitat designations (Policy Regarding Implementation of Section 4(b)(2) of the Endangered Species Act, 81 FR 7226; “the Policy”).

On December 18, 2020, the Service (“we” or “our”) amended portions of our regulations that implement section 4 of the Endangered Species Act of 1973, as amended (codified at 16 U.S.C. 1531 et seq. ) (“the Act”). The final regulation (85 FR 82376 (“the Final Rule”)) was incorporated into 50 CFR part 17 (at § 17.90) because the rule applied solely to critical habitat designated by the U.S. Fish and Wildlife Service. The Final Rule set forth a process for implementing section 4(b)(2) of the Act, which requires us to consider the impacts of designating critical habitat and allows us to exclude particular areas following a discretionary exclusion analysis subject to certain limitations (16 U.S.C. 1533(b)(2)). The Final Rule also summarized and responded to numerous public comments that we received on the proposed rule, which was published on September 5, 2020, (85 FR 55398). That proposed rule provided the background for proposed revisions in terms of the statute, legislative history, and case law.

Section 4(b)(2) of the Act requires that the Service consider the economic impact, the impact on national security, and any other relevant impact of designating any particular areas as critical habitat. It provides that the Service then may engage in a further discretionary consideration and exclude particular areas from the designation if the benefits of exclusion outweigh the benefits of inclusion and exclusion would not result in extinction of the species. In the Final Rule, we discussed our desire to articulate clearly when and how we will undertake such an exclusion analysis under section 4(b)(2), including identifying a non-exhaustive list of categories of potential impacts for the Service to consider (85 FR at 82376; December 18, 2020).

The Final Rule revisited certain language in the preamble of the Policy, as well as certain statements in the preamble to a 2013 rule that had revised the regulations on the timing of our economic analyses at 50 CFR 424.19 (78 FR 53058, August 28, 2013) (“the 2013 Rule”)). Our goal for the Final Rule was to clarify, based on agency experience, how the Service considers impacts caused by critical habitat designations and conducts our discretionary exclusion analyses, partially in light of the Supreme Court's recent decision in Weyerhaeuser Co. v. U.S. FWS, 139 S. Ct. 361 (2018) ( Weyerhaeuser). The Final Rule also stated that the Service's implementation of the 2016 Policy would be superseded by implementation of the regulations at 50 CFR 17.90.

On January 20, 2021, the President issued Executive Order 13990 (86 FR 7037; “the E.O.”), which, among other things, required all agencies to review agency actions issued between January 20, 2017 and January 20, 2021 to determine consistency with the purposes articulated in section 1 of the E.O. A “Fact Sheet” supporting the E.O. set forth a non-exhaustive list of specific agency actions that agencies were required to review. One of the agency actions included on the Fact Sheet was the December 18, 2020 Final Rule. Pursuant to the direction in the E.O., we have reviewed the Final Rule to assess whether to keep the rule in place or to revise any aspects of it. Our review included evaluating the benefits or drawbacks of the rule, the necessity of the rule, its consistency with applicable case law, its inconsistency with NMFS's process for applying section 4(b)(2) of the Act, and other factors. Based on our evaluation, we propose to rescind the Final Rule. If we make a final decision to rescind the Final Rule, the 2016 Policy will no longer be superseded, and we will resume full implementation of the Policy and the regulations at 50 CFR 424.19. In proposing the specific changes to the regulations in this document and setting out the accompanying clarifying discussion in this preamble, FWS is proposing prospective standards only. Nothing in this proposed rescission is intended to require (if this rule becomes final) that any previously finalized critical habitat designations be reevaluated on the basis of the final decision.

In the preamble to the Final Rule, we explained that, in light of the Supreme Court's decision in Weyerhaeuser, we needed to revisit certain language in the preambles for the 2013 Rule and the Policy that asserted that exclusion decisions are committed to agency discretion and therefore judicially unreviewable. For example, in the preamble to the 2013 Rule, the Services had cited case law that supported their conclusion that exclusions are wholly discretionary and that the discretion not to exclude an area is judicially unreviewable (78 FR 53072; August 28, 2013). The Services also stated in the preamble to the Policy that then-recent court decisions resoundingly upheld the discretionary nature of the Secretaries' consideration of whether to exclude areas from critical habitat (81 FR 7226, 7233; February 11, 2016), and that, although the Services will explain their rationale for not excluding a particular area, that decision is judicially unreviewable because it is committed to agency discretion ( id. at 7234).

The Supreme Court's opinion in Weyerhaeuser rendered inaccurate prior statements regarding judicial reviewability. Although the word “may” in the second sentence of section 4(b)(2) indicates discretionary authority, such that the Secretary is not required to exclude areas in any particular circumstances (16 U.S.C. 1533(b)(2)), the Court in Weyerhaeuser held that decisions not to exclude areas may be reviewed by courts for abuse of discretion under section 706(2) of the Administrative Procedure Act (APA, 5 U.S.C. 706(2)). 139 S. Ct. at 371. In response, we stated in our December 18, 2020, Final Rule that the ruling in Weyerhaeuser underscored the importance of being deliberate and transparent about how the Service goes about making exclusion decisions, such that we were proposing regulations to provide that “transparency, clarity, and certainty to the public and other stakeholders” (85 FR 82385).

During the comment period for the proposed rule, we received numerous public comments that provided both support and opposition for many of the provisions included in the proposed rule. At that time, we considered all of the comments and decided that finalization of the Final Rule was an appropriate policy decision. In issuing the Final Rule, we concluded that the criticisms brought forth by commenters were not sufficient to change our approach in that rulemaking.

We acknowledge that we are now adopting many of those criticisms as support for rescinding the Final Rule. Upon our reconsideration, we are now changing our view of the best way to provide a balance between transparency and predictability on the one hand, and flexibility and discretion on the other. We explain below why we have concluded that this changed approach is preferable to the Final Rule. We now find that the Final Rule is problematic because it unduly constrained the Service's discretion in administering the Act, potentially limiting or undermining the Service's role as the expert agency and its ability to further the conservation of endangered and threatened species through designation of their critical habitats. Our specific rationale for why we now find that the Final Rule does not achieve its stated goals or further the conservation of species is set forth below.

First, the Final Rule potentially limits or undermines the Service's role as the expert agency responsible for administering the Act because it potentially gives undue weight to outside parties in guiding the Secretary's statutory authority to exclude areas from critical habitat designations. Through the Secretary, Congress delegated the authority to designate critical habitat for listed species to the Service. Performance of parts of these responsibilities is outlined in section 4(b)(2) of the Act and includes evaluating information about the impacts of designating particular areas as critical habitat on economic, national security, and other considerations; determining which among competing data on potential impacts is the “best available”; comparing the impacts of designation against the benefits of designating those areas and determining the weight that each should receive in the analysis; and making exclusion decisions based on the best scientific data available. The Final Rule potentially limits the Service from fulfilling aspects of this role by giving parties other than the Service, including proponents of particular exclusions, an outsized role in determining whether and how the Secretary will conduct exclusion analyses. This undue reliance on outside, directly affected parties in certain aspects of the process interferes with the Secretary's authority to evaluate and weigh the information provided by those parties, when determining what specific areas to designate as critical habitat for a species.

Second, the Final Rule employs a rigid ruleset in all situations regardless of the specific facts as to when and how the Secretary will exercise the discretion to exclude areas from critical habitat designations. Although the preamble and response to comments in the Final Rule refers to using the best available information and based on the case-specific information to support exclusions analyses, the regulatory text mandates a rigid process for when the Secretary will enter into an exclusion analysis, how weights are assigned to impacts, and when an area is excluded. Therefore, implementing the Final Rule undermines the Service's ability to further the conservation of the species because the ruleset applies in all situations regardless of the specific facts at issue or the conservation outcomes. We now recognize that keeping the Final Rule would result in competing and potentially conflicting legal requirements when we undertake an exclusion analysis and could increase our legal vulnerability. Prior to the Final Rule, we implemented the Policy and 2013 Rule—neither of which set forth a rigid ruleset regarding the level of information needed for us to consider excluding areas, the weight we would assign to the information about impacts of designation, or any requirement to exclude areas under certain circumstances. In the Service's view, this approach achieved the balance that Congress sought when it enacted section 4(b)(2): It furthered the conservation of the species while still allowing for exclusions of particular areas when the benefits of exclusion outweighed the benefits of inclusion.

Finally, we find that the Final Rule does not accomplish the goal of providing clarity and transparency. Section 4(b)(2) requires the Service to consider relevant information provided by other Federal agencies, Tribes, States, and other potentially affected stakeholders and members of the public about the economic, national security, and other relevant impacts of critical habitat designations. This responsibility makes it particularly important that potentially affected entities and other relevant stakeholders have a clear understanding of what information is relevant to the Secretary's evaluation of impacts of critical habitat designations and of how that information fits into the exclusion process. Thus, in this context it is preferable for the Service's section 4(b)(2) processes and standards to be consistent with those of NMFS. Having different regulations from those NMFS applies ( i.e., 50 CFR 424.19) could result in different outcomes in analogous circumstances or for species where the Services share jurisdiction and therefore poses a significant risk of confusing other Federal agencies, Tribes, States, other potentially affected stakeholders and members of the public, and agency staff responsible for drafting critical habitat designations. We have not identified a science- or mission-based reason for separate regulations that would outweigh that risk. Thus, we find that the previous approach—in which both agencies follow the joint implementing regulations at 50 CFR 424.19 and the Policy—provides greater clarity for the public and Service staff. The Weyerhaeuser decision made clear that we now need to explain decisions not to exclude areas from critical habitat. Therefore, we will always explain our decisions not to exclude, with or without the Final Rule. Although we stated in the Final Rule that Weyerhaeuser was, in part, its impetus, even without the Final rule, and implementing the Final policy and 50 CFR 424.19, we will always explain our decisions not to exclude. We did not issue the final rule solely because of that decision. Rather, our intent was to provide greater clarity and transparency about the analyses we undertake and explain decisions not to exclude. However, the Policy and the regulations at 50 CFR 424.19 already provided that, and we have now concluded that the Final Rule was unnecessary and that it increased confusion and decreased clarity by articulating an approach that differed from both NMFS's approach and the jointly promulgated Policy. For these reasons, the Service now concludes that rescinding the Final Rule and resuming implementation of the 2013 Rule and the Policy will better enable the Service to ensure conservation of endangered and threatened species and the ecosystems on which they depend, as mandated by the Act. In addition to this overarching rationale, we explain below our basis for rescinding each of the primary substantive provisions contained in the Final Rule: The mandate to undertake a discretionary exclusion analysis whenever a proponent of an exclusion provides credible information supporting the exclusion; the generic prescription for weighing impacts; the mandate to exclude areas from a critical habitat designation whenever the benefits of exclusion outweigh the benefits of inclusion; the treatment of Federal lands; and the enumeration of factors to consider under section 4(b)(2).

The Final Rule commits the Secretary to conduct a discretionary exclusion analysis whenever a proponent of an exclusion presents “credible information” regarding the existence of a meaningful economic or other relevant impact supporting a benefit of exclusion for that particular area (85 FR at 82388; December 18, 2020). The preamble describes “credible information” as information that constitutes a “reasonably reliable indication” regarding the impact, and stated that, in determining what constitutes “credible information,” we will look at whether the proponent presents factual information in support of the claimed impact (85 FR at 82380; December 18, 2020).

We find that the “credible information” standard is vague and does not accomplish the stated goal of improving transparency about what information will or will not trigger an exclusion analysis, potentially resulting in inefficiencies and wasting the Service's limited resources. A requirement to always undertake an exclusion analysis when this standard is met does not accomplish its stated goal of providing transparency and clarity as to when the Service would conduct an exclusion analysis because the standard is not clear. In the Final Rule, we did not define “meaningful impact,” but we stated our intention for the phrase to mean only more than a de minimis impact. The Act requires us to take into consideration the best available data about the impacts of specifying particular areas as critical habitat, including information that any proponents of exclusions provide about the impacts of the designation (See 16 U.S.C. 1533(b)(2)). In addition, the Supreme Court's opinion in Weyerhaeuser already made clear that decisions not to exclude areas from critical habitat designation are judicially reviewable for abuse of discretion. 139 S. Ct. at 371. In light of that opinion, and regardless of the Final Rule, we must provide an explanation and support for our decisions to exclude any particular area, as well as decisions not to exclude (where a request with specific and relevant information has been made), as part of our critical habitat designations. Regardless of the Final Rule, the statutory requirement to designate critical habitat on the basis of the best scientific data available requires the Service to consider any information submitted by the public, including proponents of exclusions. Moreover, multiple court decisions have outlined standards and requirements to guide the Service's compliance with the best-scientific-data-available requirement; these court decisions provide the Service with sufficient guidance on this topic. For example, the courts have held that, to comply with the requirement to designate critical habitat on the basis of the best scientific data available, the Service cannot ignore evidence just because it falls short of scientific certainty. Additionally, courts have held that, to comply with the requirement to designate critical habitat on the basis of the best scientific data available, the Service (1) must provide substantial evidence to support its designations of critical habitat, Otay Mesa Property v. U.S. DOI, 646 F.3d 914, 916-17 (D.C. Cir. 2011) (conclusion that San Diego fairy shrimp occupied an area at the time of listing was held to be invalid because it was not supported by substantial evidence); (2) may use flawed studies or data if the agency acknowledges and explains the limitations, In re Polar Bear ESA Listing and Section 4(d) Rule Litigation, 709 F.3d 1, 13 (D.C. Cir. 2013) (listing of the polar bear was valid even though it relied on flawed climate models because the Service explained the methodology of the models, acknowledged their limitations, and only used the models for the limited purpose of confirming the “general direction and magnitude” of the population trends; but (3) may reject studies if they are not reliable, Home Builders Ass'n of Cal. v. U.S. FWS, 529 F. Supp. 2d 1110, 1121 (N.D. Cal. 2007) (listing of the California tiger salamander, after rejecting a population estimate study as not being the best scientific data available, was valid because FWS had evaluated the study and founds its methodology to be flawed to the point of not being reliable), aff'd, 321 Fed. Appx. 704 (9th Cir. 2009); and (4) cannot ignore information if it is in some way better than the evidence on which it relies, Kern County Farm Bureau v. Allen, 450 F.3d 1072, 1080-81 (9th Cir. 2006) (listing of the Buena Vista lake shrew was valid because the agency did not ignore three studies that were inconsistent with the final rule and instead evaluated and incorporated the studies into its analysis); (5) even if the information falls short of scientific certainty, Alabama-Tombigbee Rivers Coal. v. Kempthorne, 477 F.3d 1250, 1260 (11th Cir. 2007) (listing of Alabama sturgeon as an endangered species was valid despite taxonomic uncertainty as to whether it is a separate species from the shovelnose sturgeon; “[w]hen specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts”). The “credible information” provision is not necessary for improving clarity, and, to the contrary, it creates confusion by deviating from both the statutory standard and the Service's longstanding approach and practice.

Prior to the Final Rule, under the Policy, the Service always considered requests for exclusion; in fact, in a response to a comment on the Policy, the Services stated that if a commenter provided a reasoned rationale for an exclusion, including measures undertaken to conserve species and habitat on the land at issue (such that the benefit of inclusion is reduced), the Services would consider exclusion of those lands. However, that provision retained the Secretaries' discretion to decide not to conduct exclusion analyses in appropriate circumstances. The Final Rule, on the other hand, makes a commitment to undertake exclusion analyses whenever proponents of an exclusion submit “credible information” of a meaningful impact. This commitment reduces the Secretary's discretion not to conduct exclusion analyses in individual circumstances, even in situations in which it is clear to the Service, in its expert judgment and experience, that the benefits of exclusions are not going to outweigh the benefits of inclusion, thereby likely leading to unnecessary and time-consuming analyses. Because Congress appropriates a finite amount of funding for completing listing and critical habitat actions to protect endangered and threatened species, any resources that the Service expends on undertaking, and then potentially defending, unnecessary exclusion analyses for one species will reduce the Service's capacity to make listing and critical habitat decisions to protect other species.

Furthermore, NMFS applies the Policy to guide the exercise of the Secretary's discretion in implementation of section 4(b)(2) of the Act. This significant difference in implementation of the same provision of the Act is likely to be confusing to other Federal agencies, Tribes, States, and other potentially affected stakeholders and members of the public, particularly in situations where fact patterns are largely similar. Implementing the Policy instead of the Final Rule would provide for a consistent approach between the Service and NMFS as to when we undertake an exclusion analysis at the request of a landowner, land manager, or other entity without compromising transparency or clarity in our implementation of section 4(b)(2) of the Act.

The Final Rule (85 FR 82380) states that, for impacts outside the scope of the Service's expertise, which was narrowly defined to extend only to biological issues, the Secretary will assign weights to the benefits of inclusion or exclusion consistent with the available information from experts and parties with firsthand knowledge, unless the Secretary has knowledge or material evidence that rebuts that information. “Impacts that are outside the scope of the Service's expertise,” according to the Final Rule, expressly include nonbiological impacts identified by States or local governments.

After reconsidering the Final Rule, we find the provision to automatically assign weights based on the nonbiological impacts identified by entities outside the agency does not advance the conservation goals of the Act. Not only does it unduly constrain our authority and responsibility as the agency with the expert judgment in implementation of the Act, but it could also be at odds with the Act's mandate to base designations on the best scientific data available. Although the preamble and response to comments in the Final Rule addressed this concern by pointing out that we would make exclusion decisions on a case-by-case basis using the best available information, the regulatory text mandates a rigid process for how weights are assigned to impacts. We now recognize that keeping the Final Rule would result in competing and potentially conflicting legal requirements when we undertake an exclusion analysis and could increase our legal vulnerability. In section 4(b)(2) of the Act, Congress vested in the Secretary the authority and responsibility to assign weights to the impacts of designating particular areas as critical habitat. Automatically assigning weights based on information from parties other than the Secretary or their chain of command, including to parties that may have direct economic or other interests in the outcome of the exclusion analysis, regardless of whether those parties have expert or firsthand information, is in tension with Congress's decision to place that authority with the Secretary. Furthermore, the requirement that, unless we have rebutting information, the Secretary must assign weights to non-biological impacts based strictly on information from those entities constrains the Secretary's discretion to use their expert judgment and mandate to base designations on the best scientific data available.

In addition, the requirement to assign weights consistent with expert or firsthand information submitted by proponents of exclusions was unnecessary. Even without that provision, the Service was already required to, and did, take into consideration expert and firsthand information submitted by proponents when it assigned weights to the impacts of designation. The Service applied the Policy, which states that the Secretary will assign weights to the benefits of inclusion and exclusion when conducting an exclusion analysis. Without the Final Rule, our consideration of impacts, including the weights we assigned to the impacts and identification of the best available data, would still be subject to judicial review under the APA's “abuse of discretion” standard. See Weyerhaeuser 139 S. Ct. at 371. The Policy would again guide the Service to consider relevant information provided by commenters without creating presumptions in tension with the statute's requirement that we designate critical habitat. Therefore, in applying the Policy (if this proposed rule were finalized), we would continue to consider information submitted by proponents of exclusions, as we did before the Final Rule was promulgated.

We now find that the significant constraints that the Final Rule places on the Secretary's discretion undermine our role in undertaking an impartial evaluation of the relevant data, including information that proponents of exclusions provide, and hinders our ability to designate critical habitat based on the scientific data available as required by the statute and to provide for conservation of species.

The Policy states we would generally not exclude Federal lands from a designation of critical habitat because of the unique obligations of Federal land managers under the Act to conserve listed species and their habitats. The Final Rule states that the standards for evaluating Federal and non-Federal lands are the same and provided that our consideration of nonbiological impacts to permittees, lessees, or others with a permit, lease, or contract would be the same regardless of land ownership. It also states that the Secretary will assign weights to nonbiological impacts consistent with information provided by permittees, lessees, or contractor applicants for permits, leases, or contracts on Federal lands.

Some commenters in the rulemaking process for the Final Rule asserted that the change in policy with respect to considering exclusion of Federal lands was arbitrary and capricious because we did not adequately explain the basis for the change or elaborate on any changed circumstances. The reasoning that the preamble described for making this change in the Final Rule was that we did not wish to foreclose the potential to exclude areas under Federal ownership in cases where the benefits of exclusion outweigh the benefits of inclusion. We find that the reasoning that the preamble describes for this change was incomplete because it overlooked some key context underscoring the benefits of focusing critical habitat designations on Federal lands.

First, Congress declared its policy that “all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this Act.” (U.S.C 1531(c)(1)).

Second, all Federal agencies have responsibilities under section 7 of the Act to carry out programs for the conservation of listed species and to ensure their actions are not likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat. Federal agencies should use their authorities to further the purposes of the Act, and Federal lands are often important to the recovery of listed species. To the extent possible, we intend to focus designation of critical habitat on Federal lands in an effort to avoid the real or perceived regulatory burdens on non-Federal lands.

Finally, while the Final Rule acknowledges a change in the consideration of Federal lands from the Policy, it fails to recognize that the Policy does not prohibit exclusions of Federal lands, nor does it prohibit consideration of information provided by permittees, lessees, or contractors on Federal lands when the Secretary assigns weights to impacts under section 4(b)(2) of the Act. Thus, if this proposed rule were finalized, consistent with the Policy, the Secretary would retain their discretion to exclude Federal lands when the factual circumstances merit it. We find that the approach in the Policy better equips the Service with the flexibility necessary to account for the wide variability of circumstances in which the Secretary makes exclusion decisions—variability in the needs of the species, in the geography and quality of critical habitat areas, and of land ownership arrangements. For example, while the transactional costs of consultation with Federal agencies tend to be a relatively minor cost in most situations, and while activities on Federal lands automatically have a Federal nexus (which usually would require consultation and thus increase the potential for conservation benefits if those lands are designated), we have found that in some instances the benefits of exclusion nevertheless outweigh the benefits of designating those areas. In those situations when the benefits of excluding Federal lands outweigh the benefits of designating them as critical habitat, the Policy provides sufficient discretion for the Secretary to exclude Federal lands. Therefore, we find that it is unwise to constrain the Secretary's discretion in the regulations. Further, resuming the implementation of the Policy would realign our implementation of section 4(b)(2) of the Act with that of NMFS.

The Final Rule states that the Secretary “shall” exclude an area where the benefits of exclusion outweigh those of inclusion, so long as the exclusion will not result in the extinction of the species concerned. Using the phrase “shall exclude” requires exclusion of the area when a balancing analysis finds the benefits of exclusion outweighs those of inclusion. Although, as we stated in the preamble to the Final Rule, adding this requirement to the regulations was an exercise of the Secretary's discretion, we now find that exercising the Secretary's discretion in this way interferes with the statute's conservation goals by making a binding rule that ties the hands of current and future Secretaries in a particular way in all situations, regardless of the case-specific facts or the conservation outcomes. We recognize this change may result in a decrease in the exclusion proponent's sense of predictability in the ultimate outcome of an exclusion analysis. However, we find that advancing the conservation goals of the statute and providing a rational basis for our decision are more important than providing increased predictability, and the statute's conservation goals will be better achieved if we rescind the Final Rule and resume the implementation of the provisions of the Policy, under which the Secretary would retain discretion not to exclude an area when the benefits of exclusion outweigh those of inclusion. Although the Policy does not require exclusion when the benefits of exclusion outweigh the benefits of inclusion, it states that we would generally exclude an area in those circumstances. One difference is that the Policy acknowledges that we cannot anticipate all possible fact patterns; thus, it preserves the Secretary's discretion on exclusions regardless of the outcome of the balancing. Regardless of implementation of the Final Rule, or the Policy, when the Secretary undertakes an exclusion analysis, Weyerhaeuser requires us to be transparent and provide a rational basis to support the decision. Therefore, our explanation will make the basis of our decision clear to proponents of an exclusion and to the general public. We find that the “shall exclude” language in the Final Rule is an unnecessarily broad constraint on the Secretary's discretion. Moreover, in light of the numerous possible fact patterns regarding the relationship between critical habitat and conservation of a particular species, we find that preserving the Secretary's discretion regarding whether or not to exclude areas when the benefits of exclusion outweigh the benefits of inclusion is most consistent with the Supreme Court's characterization of the Act as representing “a policy [of] `institutionalized caution.' ” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 194 (1978).

The Final Rule contains other provisions identifying factors for the Secretary to consider when conducting exclusion analyses that involve particular categories of impacts. For example, 50 CFR 17.90(a) includes non-exhaustive lists of the types of impacts that the terms “economic impacts” and “other relevant impacts” may include. Because these lists are examples of possible factors to be considered, and are neither mandatory nor exhaustive, with or without the Final Rule the Secretary can consider whatever factors on or off of those lists that they determine appropriate given the specific facts of a designation and its impacts. As a result, removing them, if this proposed rule is made final, will not affect the Service's implementation. Similarly, 50 CFR 17.90(d) identifies factors for the Secretary to consider in evaluating impacts related to economics, national and homeland security, and conservation plans that are or are not permitted under section 10 of the Act. These factors are mostly the same as the factors identified in the Policy. Therefore, we find that it is unnecessary to include these provisions in the regulations and that, if the Final Rule is rescinded, resuming the implementation of the Policy would not alter our implementation of section 4(b)(2) of the Act with respect to these factors.

The one change in the Final Rule as compared to the Policy is the fourth factor for evaluating non-permitted plans and partnerships. The fourth factor in the Policy is whether compliance with the National Environmental Policy Act (NEPA) (codified at 42 U.S.C. 4321 et seq. ) is required, but the Final Rule adds language to make clear that we may consider plans that have had reviews similar to NEPA review even if the reviews were not technically completed under NEPA. However, that language was unnecessary because the Policy specifies that the factors it identifies for evaluating nonpermitted plans are not exclusive. As a result, even without that added language under the fourth factor in the Final Rule, we may consider plans that have had reviews similar to NEPA review, but no NEPA reviews. In short, we find that it is unnecessary to include in the regulations the additional language regarding reviews of nonpermitted plans that are similar to NEPA reviews, and that, if the Final Rule is rescinded, resuming the implementation of the Policy would not substantially change our implementation of section 4(b)(2) of the Act with respect to evaluating nonpermitted plans.

We are soliciting public comment on this proposal and supporting material. All relevant information will be considered prior to making a final determination regarding the regulations for exclusions from critical habitat. You may submit your comments and materials concerning the proposed rule by one of the methods listed in ADDRESSES . Comments must be submitted to https://www.regulations.gov (Docket FWS-HQ-ES-2019-0115) before 11:59 p.m. (Eastern Time) on the date specified in DATES . We will not consider mailed comments that are not postmarked by the date specified in DATES .

We will post all comments on https://www.regulations.gov. This generally means that we will post any personal information you provide us. If you provide personal identifying information in your comment, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so.

Executive Order 12866 (“E.O. 12866”) provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this rule is significant.

Executive Order 13563 (“E.O. 13563”) reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. E.O. 13563 directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives and further emphasizes that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this proposed rule in a manner consistent with these requirements. This proposed rule is consistent with E.O. 13563, and in particular with the requirement of retrospective analysis of existing rules designed “to make the agency's regulatory program more effective or less burdensome in achieving the regulatory objectives.”

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

This rulemaking proposes to rescind a rule that outlines Service procedures regarding exclusion of areas from designations of critical habitat under the Act. If finalized, the Service would resume the implementation of the 2013 Rule and the Policy jointly with NMFS.

As discussed above, resuming the implementation of the 2013 Rule and the Policy will not substantially alter our implementation of section 4(b)(2) of the Act. To the extent that the Final Rule differs from the Policy, it is limited to identifying specific factors for consideration that the Policy already authorizes the Service to consider in weighing the benefits of excluding areas against the benefits of including them, but in a more general sense. Moreover, the Service is the only entity that would be directly affected by this rule because the Service is the only entity that was implementing the final regulations under this portion of the CFR. No external entities, including any small businesses, small organizations, or small governments, will experience any economic impacts directly from this rule because the Service would continue to take into consideration the relevant impacts of designating specific areas as critical habitat and retain the ability to apply the factors identified in the Final Rule. In addition, our decisions to exclude or not exclude areas (where a specific request has been made) based on this consideration of impacts will continue to be judicially reviewable in accordance with the Supreme Court's opinion in Weyerhaeuser.

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

(a) On the basis of information contained in the Regulatory Flexibility Act section above, this proposed rule would not “significantly or uniquely” affect small governments. We have determined and certify pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502, that this proposed rule would not impose a cost of $100 million or more in any given year on local or State governments or private entities. A Small Government Agency Plan is not required. As explained above, small governments would not be affected because the proposed rule would not place additional requirements on any city, county, or other local municipalities.

(b) This proposed rule would not produce a Federal mandate on State, local, or Tribal governments or the private sector of $100 million or greater in any year; that is, this proposed rule is not a “significant regulatory action” under the Unfunded Mandates Reform Act. This proposed rule would impose no obligations on State, local, or Tribal governments.

In accordance with E.O. 12630, this proposed rule would not have significant takings implications. This proposed rule would not directly affect private property, nor would it cause a physical or regulatory taking. It would not result in a physical taking because it would not effectively compel a property owner to suffer a physical invasion of property. Further, the proposed rule would not result in a regulatory taking because it would not deny all economically beneficial or productive use of the land or aquatic resources and it would substantially advance a legitimate government interest (conservation and recovery of endangered species and threatened species) and would not present a barrier to all reasonable and expected beneficial use of private property.

In accordance with E.O. 13132, we have considered whether this proposed rule would have significant federalism effects and have determined that a federalism summary impact statement is not required. This proposed rule pertains only to factors for designation of critical habitat under the Act and would 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 proposed rule does not unduly burden the judicial system and meets the applicable standards provided in sections 3(a) and 3(b)(2) of E.O. 12988. This proposed rule would rescind a rule that was solely focused on exclusions from critical habitat under the Act.

In accordance with E.O. 13175, “Consultation and Coordination with Indian Tribal Governments,” and the Department of the Interior's manual at 512 DM 2, we are considering possible effects of this proposed rule on federally recognized Indian Tribes. The Service has reached a preliminary conclusion that the changes to these implementing regulations are general in nature and do not directly affect specific species or Tribal lands. This proposed rule would rescind the December 18, 2020 Final Rule that modified certain aspects of the critical habitat designation processes that we have been implementing in accordance with previous guidance and policies. If finalized, we would resume the implementation of the 2013 Rule and the Policy jointly with NMFS. Further, the 2013 Rule and the Policy are almost identical to the treatment of Tribal lands under the Final Rule and will not have Tribal implications. These proposed regulatory revisions directly affect only the Service, and with or without these revisions the Service would be obligated to continue to designate critical habitat based on the best available data. Therefore, we conclude that these proposed regulations do not have “tribal implications” under section 1(a) of E.O. 13175, and therefore formal government-to-government consultation is not required by E.O. 13175 and related policies of the Department of the Interior. We will continue to collaborate with Tribes on issues related to federally listed species and their habitats and work with them as we implement the provisions of the Act. See Secretarial Order 3206, “American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act” (June 5, 1997).

This proposed rule does not contain any new collections of information that require approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (45 U.S.C. 3501 et seq. ). We may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number.

We are analyzing this proposed regulation in accordance with the criteria of the NEPA, the Department of the Interior regulations on Implementation of the National Environmental Policy Act (43 CFR 46.10-46.450), and the Department of the Interior Manual (516 DM 8). The effect of this proposed rulemaking would be to rescind the Service-only procedures for considering exclusion of areas from a designation of critical habitat under the Act and return to implementing the 2013 Rule and the Policy jointly with NMFS. As we discussed earlier, resuming the implementation of the Policy will not substantially alter our implementation of section 4(b)(2) of the Act, and to the extent the Final Rule differs from the Policy, it is limited to identifying specific factors for consideration that the Policy already authorizes the Service to consider in weighing the benefits of excluding areas against the benefits of including them, but in a more general sense.

As a result, we anticipate, similar to our conclusion stated in the Final Rule, that the categorical exclusion found at 43 CFR 46.210(i) likely applies to the proposed regulation changes. In 43 CFR 46.210(i), the Department of the Interior has found that the following categories of actions would not individually or cumulatively have a significant effect on the human environment and are, therefore, categorically excluded from the requirement for completion of an environmental assessment or environmental impact statement: “Policies, directives, regulations, and guidelines: that are of an administrative, financial, legal, technical, or procedural nature.” However, as a result of public comments received, the final rule may differ from this proposed rule and our analysis under NEPA may also differ from the proposed rule. We will complete our analysis, in compliance with NEPA, before finalizing this regulation.

Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. The proposed revised regulation is not expected to affect energy supplies, distribution, and use. Therefore, this action is a not a significant energy action, and no Statement of Energy Effects is required.

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

(1) Be logically organized;

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

(3) Use clear language rather than jargon;

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

(5) Use lists and tables wherever possible.

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

We issue this proposed rule under the authority of the Endangered Species Act, as amended (16 U.S.C. 1531 et seq. ).

For the reasons discussed in the preamble, the U.S. Fish and Wildlife Service proposes to amend part 17 of chapter I, title 50 of the Code of Federal Regulations as set forth below:

On December 16, 2020, we published a final rule adding a definition of the term “habitat” to our implementing regulations at 50 CFR 424.02 (85 FR 81411). The final rule summarized and responded to numerous public comments on our proposed rule that published on August 5, 2020 (85 FR 47333).

The definition of “habitat” that we adopted in that final rule is: For the purposes of designating critical habitat only, habitat is the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species.

On January 20, 2021, the President issued Executive Order 13990 (hereafter referred to as “the E.O.”), which, among other things, required all agencies to review agency actions issued between January 20, 2017, and January 20, 2021. In support of the E.O., a “Fact Sheet” was issued that set forth a non-exhaustive list of specific agency actions that agencies are required to review to determine consistency with section 1 of the E.O. (See www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/ ). One of the agency actions included on the Fact Sheet was our December 16, 2020, final rule promulgating a regulatory definition for “habitat” under the Endangered Species Act of 1973, as amended (hereafter referred to as “the Act”; 16 U.S.C. 1531 et seq. ). We have reevaluated that final rule, and we are now proposing to rescind it. The following discussion provides our rationale for rescinding that rule.

First, upon reconsideration of the final rule's discussion of the extent to which areas that may need some degree of restoration can be considered “habitat” for a species, we find that the definition and the preamble of the final rule inappropriately constrain the Services' ability to designate areas that meet the definition of “critical habitat” under the Act. The definition of “habitat” requires that the areas contain the resources and conditions necessary to support one or more life processes of a species. As stated in the preamble to the final rule, this definition of “habitat” excludes areas that do not currently or periodically contain the requisite resources and conditions, even if such areas could meet this requirement in the future after restoration activities or other changes occur. We have reviewed the statute's broad definition of “conservation” and find significant tension between that definition and that of “habitat” as defined in our December 16, 2020, final rule. The statute's definition of “conservation” expressly contemplates a wide range of tools for furthering the ultimate goal of recovering listed species. “Conservation” is defined as follows: To use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary; such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation (16 U.S.C. 1532(3); defining “conserve,” “conserving,” and “conservation”).

We find that the broad definition of “conservation,” along with the statute's recognition of destruction or loss of habitat as a key factor in the decline of listed species (in section 4(a)(1) of the Act), indicates that areas not currently in an optimal state to support the species could nonetheless be considered “habitat” and “critical habitat.” The quality of habitat varies along a continuum, and species, and individuals within a species, often use habitats with variable quality over the course of their life histories. Some individuals of a listed species may use degraded or suboptimal areas, whereas other individuals may not. Including those areas in critical habitat designations, where appropriate, may be essential for the conservation of some species and is consistent with the Services' practice prior to the final rule becoming effective in January 2021. To hold otherwise would lead to the illogical result that the more a species' habitat has been degraded, the less ability there is to attempt to recover the species. While we acknowledged in the final rule that we have the ability to revise critical habitat after resources and conditions within a specific area change ( e.g., the area is restored or naturally improves), Congress required the Services to identify unoccupied areas that are “essential for the conservation” of the species when designating critical habitat. Identifying and protecting those areas when we determine they are essential, rather than delaying until an arbitrary point in time when conditions that are not required under the Act's definition are realized, better fulfills the conservation purposes of the Act and ensures that important areas of habitat are protected in section 7 consultations from destruction or adverse modification. Moreover, designating as critical habitat areas of habitat that are unoccupied but essential for the conservation of the species may guide future habitat-restoration efforts and make them more efficient and effective. Therefore, we find that some of the language included in the preamble to the final rule reflects an unnecessarily limiting interpretation of the Act that effectively hinders its stated purpose, and that the better reading of the Act is that an area should not be precluded from qualifying as habitat because some management or restoration is necessary for it to provide for a species' recovery.

In addition, our attempt to codify a single, one-size-fits-all definition of “habitat” under the Act that would cover a wide array of species' habitat requirements and also satisfy the underlying need that the definition be broad enough to include areas that could meet the Act's definition of unoccupied critical habitat resulted in the use of overly vague terminology in the definition. The resulting definition was one that neither stemmed from the scientific literature nor had a clear relationship with the statutory definition of “critical habitat.” We had reviewed and considered definitions from the ecological literature ( e.g., Odum 1971, Kearney 2006) and found there is inconsistent use of the term “habitat” ( e.g., Hall et al. 1987). We also received many suggestions for definitions of habitat from public comments on the proposed rule. Some were ecological-based definitions; others were revisions of our definition in the proposed rule; and others introduced concepts that were either in tension with the ecological principles or the definition of “critical habitat” in the Act. We rejected the available ecological definitions for use as our regulatory definition because we determined they were either too broad or too narrow to guide designation of areas that could qualify under the statute as unoccupied critical habitat. In addition, because the scientific literature evolves over time, and there is currently some ambiguity in the use of the term “habitat” (cf. Bamford and Calver 2014), codifying a single definition in regulation could constrain the Services' ability to incorporate the best available ecological science in the future.

The Act clearly indicates critical habitat should be determined on the best available science and provides a definition for the term “critical habitat.” Upon reconsideration, the separate regulatory definition of “habitat” could conflict with this mandate by shaping or limiting how the Services can consider what areas meet the definition of “critical habitat.” Rather, we find relying on the best available scientific data as specified in the Act, including species-specific ecological information, is the best way to determine whether areas constitute habitat and meet the definition of critical habitat for a species. We had also deliberately avoided using terminology from the statutory definition of “critical habitat” because we wanted to make clear that “habitat” is logically and necessarily broader than “ critical habitat.” So, for example, we avoided use of the phrase “physical or biological features.” However, we now find that in doing so, we resorted to terminology that is unclear and has no established meaning in the statute or our prior regulations or practices ( i.e., the phrases “biotic and abiotic setting” and “resources and conditions”). Thus, after reevaluating the 2020 rule, we now find that, despite our efforts to promulgate a definition that was both sufficiently broad and clear, the resulting definition is not only insufficiently clear, but also confusing.

Further, the definition of “habitat” was developed specifically for use in the context of critical habitat designations under the Act. As the Services expressed at the time we adopted the rule, the addition of this definition to the Code of Federal Regulations was not intended to create an additional step in the process of designating critical habitat for any species (85 FR 81411, December 16, 2020). Rather, the intent was that this definition would act as a regulatory standard that would be relevant in only a limited set of cases where questions arose as to whether an area was in fact “habitat” for a particular species. As the Services explained, for areas that are within the occupied range of the species, a determination that those areas meet the statutory definition of “critical habitat” (at 16 U.S.C. 1532(5)(A)(i)) inherently validates that the area is in fact “habitat” (85 FR 81411, December 16, 2020) because the area must: (1) Be part of the geographical area occupied by the species; and (2) contain physical or biological features essential to the conservation of the species. Thus, as we explained in our final rule, the applicability of the definition of “habitat” is limited only to designations with unoccupied areas and further to a subset of those where “genuine questions” might exist as to whether areas are habitat for a species (85 FR 81411, December 16, 2020; p. 81414). However, we now recognize that the approach of codifying a regulatory definition of “habitat” with a limited application, which was not intended to be applied regularly in the course of designating critical habitat, is inherently confusing.

As noted, we intended the definition to apply only to the process of designating critical habitat under the Act and therefore included the phrase, “For purposes of designation of critical habitat only” in the definition. However, even with the specific limitation of the definition's applicability, we understand that there is continuing concern that a definition of “habitat” may appear to conflict, or create inconsistencies, with other Federal agency statutory authorities or programs that also have definitions or understandings of habitat. Having multiple definitions and interpretations of what constitutes habitat that varies based on the application is confusing.

Finally, although adoption of the regulation was in part intended to be a response to the Supreme Court's decision in Weyerhaeuser Co. v. U.S.F.W.S., 139 S. Ct. 361, 372 (2018) ( Weyerhaeuser ), that decision did not require that the Services adopt a regulatory definition for “habitat.” Rather, the Court remanded the case to the lower court to consider whether the particular record supported a finding that the area disputed in the litigation was habitat for the particular species at issue (the dusky gopher frog). Similarly, we find after reconsidering the Court's decision that we can adequately address, on a case-by-case basis and on the basis of the best scientific data available, any concerns that may arise in future designations as to whether unoccupied areas are habitat for a particular species.

Having reconsidered the definition in light of E.O. 13990 and the issues discussed above, we now find that it would be more appropriate to return to implementing the statute as we had done for decades prior to January 2021, when the Services did not have a codified definition of “habitat.” Therefore, we propose to remove this definition from 50 CFR 424.02.

We are soliciting public comment on this proposal. All relevant information will be considered prior to making a final determination regarding the regulatory definition of “habitat.” You may submit your comments and materials concerning the proposed rule by one of the methods listed in ADDRESSES . Comments must be submitted to https://www.regulations.gov before 11:59 p.m. (Eastern Time) on the date specified in DATES . We will not consider mailed comments that are not postmarked by the date specified in DATES .

We will post all comments on https://www.regulations.gov. This generally means that we will post any personal information you provide us. If you provide personal identifying information in your comment, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so.

Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this rule is significant.

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

We have developed this proposed rule in a manner consistent with the requirements of E.O. 13563, and in particular with the requirement of retrospective analysis of existing rules designed “to make the agency's regulatory program more effective or less burdensome in achieving the regulatory objectives.”

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

NMFS and FWS are the only entities that are directly affected by this rule because we are the only entities that designate critical habitat under the Act. No other entities, including any small businesses, small organizations, or small governments, will experience any direct economic impacts from this rule. Therefore, we certify that, if adopted as proposed, this rule would not have a significant economic effect on a substantial number of small entities.

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

(a) On the basis of information contained in the Regulatory Flexibility Act section, this proposed rule would not “significantly or uniquely” affect small governments. We have determined and certify pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502, that this rule would not impose a cost of $100 million or more in any given year on local or State governments or private entities. A Small Government Agency Plan is not required. As explained above, small governments would not be affected because the proposed rule would not place additional requirements on any city, county, or other local municipalities.

(b) This proposed rule would not produce a Federal mandate on State, local, or Tribal governments or the private sector of $100 million or greater in any year; therefore, this proposed rule is not a “significant regulatory action” under the Unfunded Mandates Reform Act. This proposed rule would impose no obligations on State, local, or Tribal governments.

In accordance with E.O. 12630, this proposed rule would not have significant takings implications. This proposed rule would not directly affect private property, nor would it cause a physical or regulatory taking. It would not result in a physical taking because it would not effectively compel a property owner to suffer a physical invasion of property. Further, the proposed rule would not result in a regulatory taking, because it would not deny all economically beneficial or productive uses of the land or aquatic resources, it would substantially advance a legitimate government interest (conservation and recovery of endangered species and threatened species), and it would not present a barrier to all reasonable and expected beneficial uses of private property.

In accordance with E.O. 13132, we have considered whether this proposed rule would have significant federalism effects, and we have determined that a federalism summary impact statement is not required. This proposed rule pertains only to designation of critical habitat under the Act and would 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 proposed rule does not unduly burden the judicial system and meets the applicable standards provided in sections 3(a) and 3(b)(2) of E.O. 12988. This proposed rule pertains only to designation of critical habitat under the Act.

In accordance with E.O. 13175, “Consultation and Coordination with Indian Tribal Governments,” the Department of the Interior's manual at 512 DM 2, the Department of Commerce Tribal Consultation and Coordination Policy (May 21, 2013), the Department of Commerce Departmental Administrative Order (DAO) 218-8 (April 2012), and the National Oceanic and Atmospheric Administration (NOAA) Administrative Order (NAO) 218-8 (April 2012), we considered the possible effects of this proposed rule on federally recognized Indian Tribes. This proposed rule is general in nature and does not directly affect any specific Tribal lands, treaty rights, or Tribal trust resources. This regulation, if finalized, would remove the definition of “habitat” from 50 CFR 424.02, which only has a direct effect on the Services. With or without the regulatory definition of “habitat,” the Services would be obligated to continue to designate critical habitat based on the best available data and would continue to coordinate and consult as appropriate with Indian Tribes and Alaska Native corporations on critical habitat designations, per our longstanding practice. Therefore, we preliminarily conclude that this rule does not have “tribal implications” under section 1(a) of E.O. 13175; thus, formal government-to-government consultation is not required by E.O. 13175 and related policies of the Departments of Commerce and the Interior. We will continue to collaborate with Tribes on issues related to federally listed species and their habitats and work with the Tribes as we implement the provisions of the Act. See Joint Secretarial Order 3206 (“American Indian Tribal Rights, Federal Tribal Trust Responsibilities, and the Endangered Species Act”, June 5, 1997).

This proposed rule does not contain any new collections of information that require approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA) (45 U.S.C. 3501 et seq. ). In accordance with the PRA, we may not conduct or sponsor a collection of information, and you are not required to respond to a collection of information, unless it displays a currently valid OMB control number.

We are analyzing this proposed regulation in accordance with the criteria of the National Environmental Policy Act (NEPA), the Department of the Interior regulations on Implementation of the National Environmental Policy Act (43 CFR 46.10-46.450), the Department of the Interior Manual (516 DM 8), the NOAA Administrative Order 216-6A, and the NOAA Companion Manual (CM), “Policy and Procedures for Compliance with the National Environmental Policy Act and Related Authorities” (effective January 13, 2017). We have made an initial determination that a detailed statement under the NEPA is not required because the proposed rule is covered by a categorical exclusion. At 43 CFR 46.210(i), the Department of the Interior has found that the following categories of actions would not individually or cumulatively have a significant effect on the human environment and are, therefore, categorically excluded from the requirement for completion of an environmental assessment or environmental impact statement: “Policies, directives, regulations, and guidelines: that are of an administrative, financial, legal, technical, or procedural nature.” We have also determined that the proposed rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.

NOAA's NEPA procedures include a similar categorical exclusion for “preparation of policy directives, rules, regulations, and guidelines of an administrative, financial, legal, technical, or procedural nature” (Categorical Exclusion G7, at CM Appendix E). This proposed rule does not involve any of the extraordinary circumstances provided in NOAA's NEPA procedures, and therefore does not require further analysis to determine whether the action may have significant effects (CM at 4.A).

As a result, we anticipate that the categorical exclusion found at 43 CFR 46.210(i) and in the NOAA CM applies to the proposed regulation rescission, and neither Service has identified any extraordinary circumstances that would preclude this categorical exclusion. We will review any comments submitted prior to completing our analysis or finalizing this action, in accordance with applicable NEPA regulations.

Executive Order 13211 requires agencies to prepare statements of energy effects when undertaking certain actions. The proposed rescission of the regulatory definition of “habitat” is not expected to affect energy supplies, distribution, and use. Therefore, this action is a not a significant energy action, and no statement of energy effects is required.

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

(1) Be logically organized;

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

(3) Use clear language rather than jargon;

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

(5) Use lists and tables wherever possible.

If you believe that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES .

We issue this proposed rule under the authority of the Endangered Species Act, as amended (16 U.S.C. 1531 et seq ).

For the reasons set out in the preamble, we hereby propose to amend part 424, subchapter A of chapter IV, title 50 of the Code of Federal Regulations, as set forth below:

NMFS proposes to specify a 2022 catch limit of 2,000 t of longline-caught bigeye tuna for each U.S. Pacific territory. NMFS would also authorize each U.S. Pacific territory to allocate up to 1,500 t of its 2,000 t bigeye tuna limit, not to exceed a 3,000 t total annual allocation limit among all the territories, to U.S. longline fishing vessels that are permitted to fish under the Fishery Ecosystem Plan for Pelagic Fisheries of the Western Pacific (FEP). Those vessels must be identified in a specified fishing agreement with the applicable territory. The Council recommended these specifications.

The proposed catch limits and accountability measures are identical to those that NMFS has specified for U.S. Pacific territories in each year since 2014. The proposed individual territorial allocation limit of 1,500 t is identical to what NMFS specified for 2020 and 2021. The overall allocation limit among all of the territories may not exceed 3,000 t for the year, which is consistent with previous years. NMFS has determined that the existing EA and SEA adequately address the potential impacts on the human environment by the proposed action, and that no additional analyses are required.

NMFS will monitor catches of longline-caught bigeye tuna by the longline fisheries of each U.S Pacific territory, including catches made by U.S. longline vessels operating under specified fishing agreements. The criteria that a specified fishing agreement must meet, and the process for attributing longline-caught bigeye tuna, will follow the procedures in 50 CFR 665.819. When NMFS projects that a territorial catch or allocation limit will be reached, NMFS would, as an accountability measure, prohibit the catch and retention of longline-caught bigeye tuna by vessels in the applicable territory (if the territorial catch limit is projected to be reached), and/or vessels in a specified fishing agreement (if the allocation limit is projected to be reached).

NMFS will consider public comments on the proposed action and will announce the final specifications in the Federal Register . NMFS also invites public comments that address the impact of this proposed action on cultural fishing in American Samoa.

NMFS must receive any comments on this proposed action by the date provided in the DATES heading. NMFS may not consider any comments not postmarked or otherwise transmitted by that date. Regardless of the final specifications, all other existing management measures will continue to apply in the longline fishery.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the NMFS Assistant Administrator has determined that this proposed specification is consistent with the FEP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

The Chief Counsel for Regulation for the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that these proposed specifications, if adopted, would not have a significant economic impact on a substantial number of small entities.

The proposed action would specify a 2022 limit of 2,000 t of longline-caught bigeye tuna for each U.S. Pacific territory (American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands (CNMI)). NMFS would also allow each territory to allocate up to 1,500 t of its 2,000 t limit, not to exceed an overall allocation limit of 3,000 t, to U.S. longline fishing vessels in a specified fishing agreement that meets established criteria set forth in 50 CFR 665.819. As an accountability measure, NMFS would monitor, attribute, and restrict (if necessary) catches of longline-caught bigeye tuna by vessels in the applicable U.S. territory (if the territorial catch limit is projected to be reached), or by vessels operating under the applicable specified fishing agreement (if the allocation limit is projected to be reached). Payments under the specified fishing agreements support fisheries development in the U.S. Pacific territories and the long-term sustainability of fishery resources of the U.S. Pacific Islands.

This proposed action would apply directly to longline vessels that hold Federal permits under the FEP, specifically Hawaii, American Samoa, and Western Pacific General permits. In 2020, of the 164 allowable Hawaii permits, 147 were assigned to vessels active in the fishery; 24 of those were dual-permitted with both Hawaii and American Samoa permits. Forty-seven (47) had American Samoa longline permits, with 11 active in the fishery and landing catch in American Samoa. There are no active vessels with Western Pacific General permits.

Based on dealer data collected by the State of Hawaii and the Pacific Fisheries Information Network, Hawaii longline vessels landed approximately 12,655 t of pelagic fish valued at $72.8 million in 2020. With 147 vessels making either a deep- or shallow-set trip in 2020, the ex-vessel value of pelagic fish caught by Hawaii-based longline fisheries averaged almost $495,238 per vessel. In 2020, American Samoa-based longline vessels landed approximately 852 t of pelagic fish valued at $2.1 million; albacore made up the largest proportion of pelagic longline commercial landings. With 11 active longline vessels in 2020, the ex-vessel value of pelagic fish caught by the American Samoa fishery averaged almost $190,909 per vessel. In 2020, these fisheries experienced declines in prices, landings, revenue and other fishery performance measures due to the effects of travel restrictions and reduced tourism on market demand for locally caught seafood. Hawaii longline fishery revenue in 2020 was 30.4 percent lower than the average annual revenue over the previous 5 year (2015-2019) time period, while landings and prices declined by 21.9 percent and 11.5 percent compared to the average annual landings and prices over the previous 5 years. As travel and other restrictions have eased, market demand has started to resume for locally caught seafood, market prices, and fishing effort. In American Samoa, the longline fishery revenues and landings in 2020 declined 60 percent compared to the previous 5 year period.

NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide. Based on available information, NMFS has determined that all vessels permitted federally under the Pelagic FEP are small entities, i.e., they are engaged in the business of fish harvesting (NAICS 114111), are independently owned or operated, are not dominant in their field of operation, and have annual gross receipts not in excess of $11 million. Even though this proposed action would apply to a substantial number of vessels, the implementation of this action would not result in significant adverse economic impact to individual vessels. The proposed action would potentially benefit the Hawaii longline fishermen by allowing them to fish under specified fishing agreements with a territory, which could extend fishing effort for bigeye tuna in the western Pacific and provide more bigeye tuna for markets in Hawaii and elsewhere.

In accordance with Federal regulations at 50 CFR part 300, subpart O, vessels that possess both an American Samoa and Hawaii longline permit are not subject to the U.S bigeye tuna limit. Therefore, these vessels may retain bigeye tuna and land fish in Hawaii after the date NMFS projects the fishery would reach that limit. Further, catches of bigeye tuna made by such vessels are attributed to American Samoa, provided the fish was not caught in the U.S. Exclusive Economic Zone around Hawaii.

The 2022 U.S. bigeye tuna catch limit in the western and central Pacific Ocean (WCPO) is 3,554 t, the same as 2021. In 2021, NMFS received separate specified fishing agreements between the CNMI and the Hawaii Longline Association (HLA) and between American Samoa and HLA, each of which included a specification of 1,500 t of bigeye tuna. NMFS began allocating catches to the CNMI on August 30, 2021, prior to the U.S. fishery reaching the WCPO bigeye tuna catch limit. Based on logbooks submitted by longline vessels, the CNMI allocation would likely be reached sometime in December of 2021, at which time NMFS would begin allocating catches to American Samoa. These combined measures, including the remaining available U.S limit and specified fishing agreements, should enable the U.S. fishery to fish through the end of 2021.

In 2022, as with prior years, under this proposed action Hawaii longline vessels could enter into one or more fishing agreements with participating territories. This would enhance the ability of these vessels to extend fishing effort in the western and central Pacific Ocean after reaching the 2022 U.S. limit and provide more bigeye tuna for markets in Hawaii. Providing opportunity to land bigeye tuna in Hawaii in the last quarter of the year when market demand is generally high will result in positive economic benefits for fishery participants and net benefits to the nation. Allowing participating territories to enter into specified fishing agreements under this action is consistent with Western and Central Pacific Fishery Commission (WCPFC) conservation and management objectives for bigeye tuna in CMM 2018-01, and benefits the territories by providing funds for territorial fisheries development projects. Establishing a 2,000 t longline limit for bigeye tuna, where territories are not subject to WCPFC longline limits, is not expected to adversely affect vessels based in the territories.

Historical catches of bigeye tuna by the American Samoa longline fleet have been less than 2,000 t, including the catch by vessels based in American Samoa, catch by dual permitted vessels that land their catch in Hawaii, and catch attributed to American Samoa from U.S. vessels under specified fishing agreements. Longline fishing has not occurred since 2011 in Guam or the CNMI.

Under the proposed action, longline fisheries managed under the FEP are not expected to expand substantially nor change the manner in which they are currently conducted ( i.e., area fished, number of vessels and trips, number and depth of hooks, or deployment techniques) due to existing operational constraints in the fleet, the limited entry permit programs, and protected species mitigation requirements. The proposed action does not duplicate, overlap, or conflict with other Federal rules and is not expected to have significant impact on small organizations or government jurisdictions. Furthermore, there would be little, if any, disproportionate adverse economic impacts from the proposed action based on gear type or relative vessel size. The proposed action also will not place a substantial number of small entities, or any segment of small entities, at a significant competitive disadvantage to large entities.

For the reasons above, NMFS does not expect the proposed action to have a significant economic impact on a substantial number of small entities. As such, an initial regulatory flexibility analysis is not required and none has been prepared.

This action is exempt from review under Executive Order 12866.

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