Pursuant to 5 U.S.C. 553, proposes amendments to regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j) are proposed. This proposal is issued under Marketing Order No. 925, as amended (7 CFR part 925), regulating the handling of grapes grown in a designated area of southeastern California. Part 925 (referred to as the “Order”) is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Committee locally administers the Order and is comprised of grape producers and handlers operating within the area of production, and a public member.

The Department of Agriculture (USDA) is issuing this proposed rule in conformance with Executive Orders 12866 and 13563. Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review.

In addition, this proposed rule has been reviewed under Executive Order 13175—Consultation and Coordination with Indian Tribal Governments, which requires agencies to consider whether their rulemaking actions would have tribal implications. The Agricultural Marketing Service (AMS) has determined this proposed rule is unlikely to have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

This proposal has also been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This rule shall not be deemed to preclude, preempt, or supersede any State program covering grapes grown in a designated area of southeastern California.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 8c(15)(A) of the Act (7 U.S.C. 608 (15)(A)), any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed no later than 20 days after the date of entry of the ruling.

Section 1504 of the Food, Conservation, and Energy Act of 2008 (2008 Farm Bill) (Pub. L. 110-246) amended section 8c(17) of the Act, which in turn required the addition of supplemental rules of practice to 7 CFR part 900 (73 FR 49307; August 21, 2008). The amendment of section 8c(17) of the Act and supplemental rules of practice authorize the use of informal rulemaking (5 U.S.C. 553) to amend Federal fruit, vegetable, and nut marketing agreements and orders. USDA may use informal rulemaking to amend marketing orders depending upon the nature and complexity of the proposed amendments, potential regulatory and economic impacts on affected entities, and any other relevant matters.

AMS has considered these factors and has determined that the amendments proposed herein are not unduly complex and the nature of the proposed amendments is appropriate for utilizing the informal rulemaking process to amend the Order.

The Committee unanimously recommended the amendments following deliberations at a public meeting on April 13, 2021. This proposal would amend the Order by changing the Committee's size, and its quorum and voting requirements.

A proposed rule soliciting comments on the proposed amendments was published in the Federal Register on August 13, 2021 (86 FR 44644). Two comments were received in support of the proposed amendments, so no changes will be made to the proposed amendments.

AMS will conduct a producer referendum to determine support for the proposed amendments. If appropriate, a final rule will then be issued to effectuate the amendments, if they are favored by producers in the referendum.

§ 925.20 provides that the Committee consists of 12 members and, for each member of the Committee, there must be an alternate who has the same qualifications as the member. This proposal would amend § 925.20 by reducing the size of the Committee from 12 to 10 members. The requirement that each member has an alternate with the same qualifications as the member would remain unchanged. Four members and their alternates would be producers or officers or employees of producers (producer members). Four members and their alternates would be handlers or officers or employees of handlers (handler members). One member and alternate would be either a producer or handler or officer or employee thereof. One member and alternate would represent the public.

Since promulgation of the Order in 1980, the California table grape industry has seen reductions of about 55 percent of its producers and 58 percent of its registered handlers, which makes it difficult to find eligible members to fill all positions on the Committee. Industry consolidation and land development pressure due to conversion of lands for residential and commercial uses have contributed to this decline. Decreasing the Committee's size from 12 members to 10 members would make Committee membership more reflective of today's industry and enable the Committee to fill all its member positions without difficulty.

Currently, § 925.30 states that eight members of the Committee shall constitute a quorum, and any action of the committee shall require at least eight concurring votes.

The proposed change would modify § 925.30 to allow six members to constitute a quorum including, at a minimum, one producer member and one handler member, with six concurring votes required to pass any motion or approve any Committee action.

The Committee is experiencing difficulties filling member seats and obtaining a quorum at meetings to conduct business activities. Adjusting current requirements would enable the Committee to operate fully, mitigating the risk of not establishing a quorum during scheduled meetings and not having the required votes to pass any action. These changes would help to streamline the Committee's operations and increase its effectiveness.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS has considered the economic impact of this proposed rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be unduly or disproportionately burdened.

Small agricultural producers have been defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts of no more than $1,000,000. Small agricultural service firms (handlers) are defined as those with annual receipts of no more than $30,000,000.

Proposed amendments to the Order would reduce the number of members and alternates seats on the Committee from 12 to 10 and reduce the quorum and voting requirements from 8 to 6 members. These amendments are necessary to reflect the industry's consolidation. Since promulgation of the Order in 1980, the California table grape industry has lost roughly 55 percent of its producers and 58 percent of its registered handlers.

Committee reports that there are 21 producers and 10 handlers of table grapes in the production region. Committee packout reports show that average annual packout for 2018 through 2020 was 3.2127 million 18-pound containers, equivalent to 28,914 tons. The 3-year average of California fresh table grape prices was $1,267 per ton. Multiplying quantity by price yields an annual average crop value estimate of $36.634 million. Dividing the average crop value estimate by the number of producers (21) yields an average crop value per producer of $1.744 million, moderately larger than the SBA small farm size threshold of $1,000,000. Therefore, using the estimated prices, packout volume, and number of producers and assuming a normal bell-curve distribution of receipts among producers, AMS estimates the majority of producers would qualify as large businesses under the SBA definition.

Dividing the average crop value of $36.634 million by the number of handers (10) yields a per-handler estimate of $3.663 million, well below the SBA small business threshold of $30,000,000 in annual receipts. However, that computation measures handler annual receipts using producer-level crop value data, since AMS is unable to locate an estimate of a handler margin. A range of handler margin estimates would be 30 to 40 percent above the grower price. Applying those two percentages, a range of handler annual receipts estimates would be $4.8 to $5.1 million, still well below $30,000,000. Therefore, using these estimated prices, utilization volume, handler margin estimates and number of handlers, AMS estimates that the majority of handlers would meet the SBA definition of small businesses.

AMS has determined that the proposed amendments would not have a significant impact on a substantial number of small businesses. Both large and small entities would be expected to benefit from the Committee's improved ability to address important issues on a timely basis. The proposed reduction in the number of seats on the Committee, and the reduced quorum and voting requirements, would not require any significant changes in producer or handler business operations, and no significant industry educational effort would be needed. Producers and handlers, large and small would incur no additional costs. No small businesses would be unduly or disproportionately burdened.

The Committee unanimously recommended the proposed amendments at a public meeting on April 13, 2021. If these proposals are approved in a referendum, there would be no direct financial effects on producers or handlers. However, these proposed changes would have indirect financial effects—decreased administrative costs to producers and Committee staff stemming from fewer resources required to the annual preparation of multiple nomination notices and meetings, and reduced travel expenses associated with carrying out annual duties.

Since 1980, the number of producers and handlers operating in the industry has decreased, which makes it difficult to find enough members to fill positions on the Committee. Decreasing the Committee's size would make it more reflective of today's industry. No economic impact is expected if the proposed amendments are approved because they would not establish any new regulatory requirements on handlers, nor would they have any assessment or funding implications. There would be no change in financial costs associated with reporting or recordkeeping requirements if this proposal is approved.

Alternatives to this proposal, including making no changes at this time, were considered by the Committee. Due to changes in the industry, AMS believes the proposals are justified and necessary to ensure the Committee's ability to locally administer the program. Reducing the size of the Committee would enable it to satisfy membership, and quorum and voting requirements fully, thereby ensuring a more efficient and orderly flow of business.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Order's information collection requirements have been previously approved by OMB and assigned OMB No. 0581-0189, Fruit Crops. No changes in those requirements are necessary because of this action. Should any changes become necessary, they would be submitted to OMB for approval.

This proposed rule would impose no additional reporting or recordkeeping requirements on either small or large California table grape handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public-sector agencies.

AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this action.

The Committee's meetings are widely publicized throughout the southeastern California table grape production area. All interested persons are invited to attend the meetings, whether held virtually or in-person, and encouraged to participate in Committee deliberations on all issues. As with all Committee meetings, the April 13, 2021, meeting was public, and all entities, both large and small, were encouraged to express their views on the proposed amendments.

A proposed rule concerning this action was published in the Federal Register on August 13, 2021 (86 FR 44644). A copy of the rule was sent via email to the Committee Manager for disposal to all Committee members and California table grape handlers. Finally, the proposed rule was made available by USDA through the internet and the office of the Federal Register. A 60-day comment period ending October 12, 2021, was provided to allow interested persons to respond to the proposal. Two comments were received during the comment period, both of which were in support of the proposed amendments. However, one commentor was concerned that the restructure of the Committee might limit the participation of interested parties in the industry. Further, the commentor suggested adding a requirement for periodic review of the Committee structure to the regulations.

USDA and the Committee encourage the participation of all eligible interested parties in the administration of the Order. The proposed restructuring of the Committee is not intended to limit the participation of individuals on the Committee, but rather to reflect the current industry demographic and to facilitate the ability of the Committee to function moving forward. Furthermore, the Committee has the ability to recommend changes to the Committee structure when it is deemed appropriate, and the addition of a regulatory review requirement is not necessary. As such, no changes will be made to the amendments as proposed.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: https://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any questions about the compliance guide should be sent to Richard Lower at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

The findings and conclusions, and general findings and determinations included in the proposed rule set forth in the August 13, 2021, issue of the Federal Register are hereby approved and adopted.

Annexed hereto and made a part hereof is the document entitled “Order Amending the Order Regulating the Handling of Grapes Grown in a Designated Area of Southeastern California.” This document has been decided upon as the detailed and appropriate means of effectuating the foregoing findings and conclusions. It is hereby ordered that this entire proposed rule be published in the Federal Register .

It is hereby directed that a referendum be conducted in accordance with the procedure for the conduct of referenda (7 CFR 900.400 through 900.407) to determine whether the annexed order amending the Order regulating the handling of grapes grown in a designated area of southeastern California is approved by growers, as defined under the terms of the Order, who during the representative period were engaged in the production of grapes in the production area. The representative period for the conduct of such referendum is hereby determined to be January 1, 2021, through December 31, 2021.

The agents designated by the Secretary to conduct the referendum are Jeffery Rymer and Gary D. Olsen, Western Region Branch, Market Development Division, Specialty Crops Program, AMS, USDA; Telephone: (559) 487-5901, Fax: (559) 487-5906, or Email: Jeffery.Rymer@usda.gov or GaryD.Olsen@usda.gov, respectively.

The findings hereinafter set forth are supplementary to the findings and determinations which were previously made in connection with the issuance of Marketing Order 925; and all said previous findings and determinations are hereby ratified and affirmed, except insofar as such findings and determinations may be in conflict with the findings and determinations set forth herein.

1. Marketing Order 925 as hereby proposed to be amended and all the terms and conditions thereof, would tend to effectuate the declared policy of the Act;

2. Marketing Order 925 as hereby proposed to be amended regulates the handling of grapes grown in a designated area of southeastern California and is applicable only to persons in the respective classes of commercial and industrial activity specified in the Order;

3. Marketing Order 925 as hereby proposed to be amended is limited in application to the smallest regional production area which is practicable, consistent with carrying out the declared policy of the Act, and the issuance of several marketing orders applicable to subdivisions of the production area would not effectively carry out the declared policy of the Act;

4. Marketing Order 925 as hereby proposed to be amended prescribes, insofar as practicable, such different terms applicable to different parts of the production area as are necessary to give due recognition to the differences in the production and marketing of grapes produced or packed in the production area; and

5. All handling of grapes produced or packed in the production area as defined in Marketing Order 925 is in the current of interstate or foreign commerce or directly burdens, obstructs, or affects such commerce.

It is therefore ordered, that on and after the effective date hereof, all handling of grapes grown in a designated area of southeastern California shall be in conformity to, and in compliance with, the terms and conditions of the said Order as hereby proposed to be amended as follows:

The provisions of the proposed marketing order amending the Order contained in the proposed rule issued by the Administrator and published in the Federal Register (86 FR 44644) on August 13, 2021, will be and are the terms and provisions of this order amending the Order and are set forth in full herein.

For the reasons set forth in the preamble, the Agricultural Marketing Service proposes to amend 7 CFR part 925 as follows:

Consumer air cleaners are not currently subject to a DOE test procedure or energy conservation standards. On September 16, 2021, DOE published a notice of proposed determination (“NOPD”) in which DOE tentatively determined that consumer air cleaners qualify as a “covered product” under the Energy Policy and Conservation Act, as amended (“EPCA”)  1 (“September 2021 NOPD”). 86 FR 51629. DOE tentatively determined in the September 2021 NOPD that coverage of consumer air cleaners is necessary or appropriate to carry out the purposes of EPCA, and that the average U.S. household energy use for consumer air cleaners is likely to exceed 100 kilowatt-hours (“kWh”) per year. Id.

The following sections discuss DOE's authority to establish test procedures and energy conservation standards for covered products, relevant background information regarding DOE's consideration of establishing federal regulations for consumer air cleaners, if DOE determines such products are covered products, and a discussion of DOE's rulemaking process for test procedures and energy conservation standards.

EPCA authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. (42 U.S.C. 6291-6317) Title III, Part B  2 of EPCA established the Energy Conservation Program for Consumer Products Other Than Automobiles, which sets forth a variety of provisions designed to improve energy efficiency for certain products, referred to as “covered products.”  3 In addition to specifying a list of consumer products that are covered products, EPCA contains provisions that enable the Secretary of Energy to classify additional types of consumer products as covered products. To classify a consumer product as a covered product, the Secretary must determine that:

(1) Classifying the product as a covered product is necessary or appropriate to carry out the purposes of EPCA; and

(2) The average annual per household  4 energy use by products of such type is likely to exceed 100 kWh (or British thermal unit (“Btu”) equivalent) per year. (42 U.S.C. 6292(b)(1)) As stated, DOE has preliminarily determined that consumer air cleaners are covered products. 86 FR 51629.

The energy conservation program under EPCA consists essentially of four parts: (1) Testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of EPCA include definitions (42 U.S.C. 6291), test procedures (42 U.S.C. 6293), labeling provisions (42 U.S.C. 6294), energy conservation standards (42 U.S.C. 6295), and the authority to require information and reports from manufacturers (42 U.S.C. 6296).

Federal energy efficiency requirements for covered products established under EPCA generally supersede State laws and regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6297) DOE may, however, grant waivers of Federal preemption for particular State laws or regulations, in accordance with the procedures and other provisions of EPCA. (42 U.S.C. 6297(d))

The Federal testing requirements consist of test procedures that manufacturers of covered products must use as the basis for: (1) Certifying to DOE that their products comply with the applicable energy conservation standards adopted pursuant to EPCA (42 U.S.C. 6295(s)), and (2) making other representations about the efficiency of that product (42 U.S.C. 6293(c)). Similarly, DOE must use these test procedures to determine whether the product complies with relevant standards promulgated under EPCA. (42 U.S.C. 6295(s))

In 42 U.S.C. 6293, EPCA sets forth the criteria and procedures DOE must follow when prescribing or amending test procedures for covered products. Specifically, EPCA provides that DOE may, in accordance with certain requirements, prescribe test procedures for any consumer product classified as a covered product under section 6292(b). (42 U.S.C. 6293(b)(1)(B)) EPCA requires that any test procedures prescribed or amended under this section must be reasonably designed to produce test results which reflect energy efficiency, energy use or estimated annual operating cost of a given type of covered product during a representative average use cycle and must not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3))

In addition, EPCA requires DOE to amend its test procedures for all covered products to integrate measures of standby mode and off mode energy consumption into the overall energy efficiency, energy consumption, or other energy descriptor. (42 U.S.C. 6295(gg)(2)(A)) When doing so, DOE must take into consideration the most current versions of Standards 62301 and 62087 of the International Electrotechnical Commission (“IEC”), unless the current test procedure already incorporates the standby mode and off mode energy consumption, or if such integration is technically infeasible. If an integrated test procedure is technically infeasible, DOE must prescribe separate standby mode and off mode energy use test procedures for the covered product, if a separate test is technically feasible. ( Id. )

If the Secretary determines, on her own behalf or in response to a petition by any interested person, that a test procedure should be prescribed, the Secretary shall promptly publish in the Federal Register a proposed test procedure and afford interested persons an opportunity to present oral and written data, views, and arguments with respect to such a procedure. The comment period on a proposed rule to amend a test procedure shall be at least 60 days and no more than 270 days. In prescribing or amending a test procedure, the Secretary shall take into account such information as the Secretary determines relevant to such procedure, including technological developments relating to energy use or energy efficiency of the type (or class) of covered products involved. (42 U.S.C. 6293(b)(2)) In prescribing a new or amended test procedure, DOE must follow the statutory criteria of 42 U.S.C. 6293(b)(3)-(4), as discussed further in section I.C of this document, and follow the rulemaking procedures set out in 42 U.S.C. 6293(b)(2). Before prescribing any final test procedure, the Secretary must publish a proposed test procedure in the Federal Register , and afford interested persons an opportunity (of not less than 60 days' duration) to present oral and written data, views, and arguments on the proposed test procedure. (42 U.S.C. 6293(b)(2)).

Similarly, DOE must follow specific statutory criteria for prescribing new or amended standards for covered products. Following a coverage determination, DOE may prescribe an energy conservation standard for any type (or class) of covered products of a type specified in section 6292(a)(20) of EPCA, if the substantive and procedural requirements of 42 U.S.C. 6295(o) and (p) are met and the Secretary determines that: (1) The average per household energy use within the United States by products of such type (or class) exceeded 150 kWh (or its Btu equivalent) for any 12-month period ending before such determination; (2) the aggregate household energy use within the United States by products of such type (or class) exceeded 4,200,000,000 kWh (or its Btu equivalent) for any such 12-month period; (3) substantial improvement in the energy efficiency of products of such type (or class) is technologically feasible; and (4) the application of a labeling rule under section 6294 of this title to such type (or class) is not likely to be sufficient to induce manufacturers to produce, and consumers and other persons to purchase, covered products of such type (or class) which achieve the maximum energy efficiency which is technologically feasible and economically justified. (42 U.S.C. 6295(l)(1)) Further, any new or amended standard for covered products of a type specified in paragraph (20) of section 6292(a) of this title shall not apply to products manufactured within 5 years after the publication of a final rule establishing such standard. (42 U.S.C. 6295(1)(2)

Further, EPCA requires that any new or amended energy conservation standard prescribed by the Secretary be designed to achieve the maximum improvement in energy or water efficiency that is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A)) The Secretary may not prescribe an amended or new standard that will not result in significant conservation of energy, or is not technologically feasible or economically justified. (42 U.S.C. 6295(o)(3)) DOE must evaluate proposed new standards against the criteria of 42 U.S.C. 6295(o), as described further in section I.D of this document, and follow the rulemaking procedures set out in 42 U.S.C. 6295(p). DOE is publishing this RFI consistent with its authority and these obligations.

DOE has not previously conducted a rulemaking for consumer air cleaners. As stated, DOE tentatively determined in the September 2021 NOPD that: Coverage of consumer air cleaners is necessary or appropriate to carry out the purposes of EPCA; the average U.S. household energy use for consumer air cleaners is likely to exceed 100 kWh per year; and thus, consumer air cleaners qualify as a “covered product” under EPCA. 86 FR 51629. In the September 2021 NOPD, DOE sought comment on: (1) A proposed definition for consumer air cleaners; (2) the energy use analysis conducted in support of the September 2021 NOPD; and (3) additional information and data to support DOE's preliminary determination to classify consumer air cleaners as a covered product under EPCA. 86 FR 51629, 51632-51633.

DOE is currently evaluating comments received from interested parties in response to the September 2021 NOPD. DOE will address these comments and publish a final decision on coverage as a separate notice.

As stated, EPCA requires that any test procedure prescribed or amended must be reasonably designed to produce test results which reflect energy efficiency, energy use or estimated annual operating cost of a particular type of covered product during a representative average use cycle and not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3))

DOE will publish a notification in the Federal Register ( e.g., an RFI or notice of data availability (“NODA”)) whenever DOE is considering initiation of a rulemaking to establish or amend a test procedure. Section 8(a) of the Process Rule.

As part of such document(s), DOE will solicit submission of comments, data, and information on whether DOE should proceed with the rulemaking. Potential topics include whether a test procedure rule would more accurately measure energy efficiency, energy use, or estimated annual operating cost of a product during a representative average use cycle or period of use without being unduly burdensome to conduct; or reduce testing burden. Based on the information received in response to such request and its own analysis, DOE will determine whether to proceed with a rulemaking for a new or amended test procedure. Section 8(a)(1) and (a)(2) of the Process Rule.

As detailed throughout this RFI, DOE is publishing this document seeking input and data from interested parties to aid in DOE's determination whether (and if so, how) to establish a test procedure for consumer air cleaners.

As stated previously, following a coverage determination, DOE may prescribe an energy conservation standard for any type (or class) of covered products of a type specified in section 6292(a)(20) of EPCA, if the substantive and procedural requirements in 42 U.S.C. 6295(o) and (p) are met and the Secretary determines that: (1) The average per household energy use within the United States by products of such type (or class) exceeded 150 kWh (or its Btu equivalent) for any 12-month period ending before such determination; (2) the aggregate household energy use within the United States by products of such type (or class) exceeded 4,200,000,000 kWhs (or its Btu equivalent) for any such 12-month period; (3) substantial improvement in the energy efficiency of products of such type (or class) is technologically feasible; and (4) the application of a labeling rule under section 6294 of this title to such type (or class) is not likely to be sufficient to induce manufacturers to produce, and consumers and other persons to purchase, covered products of such type (or class) which achieve the maximum energy efficiency which is technologically feasible and economically justified. (42 U.S.C. 6295(l)(1)) Further, any new or amended standard for covered products of a type specified in paragraph (20) of section 6292(a) of this title shall not apply to products manufactured within 5 years after the publication of a final rule establishing such standard. (42 U.S.C. 6295(1)(2)

DOE must follow specific statutory criteria for prescribing new or amended standards for covered products. As stated, EPCA requires that any new or amended energy conservation standard prescribed by the Secretary be designed to achieve the maximum improvement in energy (or water efficiency for certain products specified by EPCA) that is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A)) Furthermore, DOE may not adopt any standard that would not result in the significant conservation of energy. (42 U.S.C. 6295(o)(3))

The significance of energy savings offered by a new or amended energy conservation standard cannot be determined without knowledge of the specific circumstances surrounding a given rulemaking. 5 For example, the United States rejoined the Paris Agreement on February 19, 2021. As part of that agreement, the United States has committed to reducing greenhouse gas (“GHG”) emissions in order to limit the rise in mean global temperature. As such, energy savings that reduce GHG emission have taken on greater importance. Additionally, some covered products and equipment have most of their energy consumption occur during periods of peak energy demand. The impacts of these products on the energy infrastructure can be more pronounced than products with relatively constant demand. In evaluating the significance of energy savings, DOE considers differences in primary energy and full-fuel-cycle (“FFC”) effects for different covered products and equipment when determining whether energy savings are significant. Primary energy and FFC effects include the energy consumed in electricity production (depending on load shape), in distribution and transmission, and in extracting, processing, and transporting primary fuels ( i.e., coal, natural gas, petroleum fuels), and thus present a more complete picture of the impacts of energy conservation standards.

Accordingly, DOE evaluates the significance of energy savings on a case-by-case basis.

To determine whether a standard is economically justified, EPCA requires that DOE determine whether the benefits of the standard exceed its burdens by considering, to the greatest extent practicable, the following seven factors:

DOE fulfills these and other applicable requirements by conducting a series of analyses throughout the rulemaking process. Table I.1 shows the individual analyses that are performed to satisfy each of the requirements within EPCA.

In determining whether to consider establishing or amending any energy conservation standard, DOE's general process is to publish one or more preliminary ( i.e., “pre-NOPR”) documents in the Federal Register intended to gather information on key issues. Section 6(a)(1) of the Process Rule. Such document(s) could take several forms depending upon the specific proceeding, including a framework document, RFI, NODA, preliminary analysis, or advance notice of proposed rulemaking. Section 6(a)(2) of the Process Rule. Such document(s) will be published in the Federal Register , with any accompanying documents referenced and posted in the appropriate docket. Section 6(a)(1) of the Process Rule.

The pre-NOPR-stage document(s) will solicit submission of comments, data, and information on whether DOE should proceed with the standards rulemaking, including whether any new or amended rule would, as EPCA requires, be economically justified, technologically feasible, and result in a significant savings of energy. Section 6(a)(1) of the Process Rule.

DOE will determine whether to proceed with a rulemaking for a new or amended energy conservation standard based on the information received in response to such request and its own analysis. Section 6(a)(3) of the Process Rule.

As detailed throughout this RFI, DOE is publishing this document seeking input and data from interested parties to aid in the development of the technical analyses on which DOE will ultimately rely to determine whether (and if so, how) to establish energy conservation standards for consumer air cleaners.

In accordance with Section 3(a) of 10 CFR part 430, subpart C, appendix A, DOE notes that it is deviating from that Appendix's provision that DOE will publish its final coverage determination prior to the initiation of any test procedure or energy conservation standards rulemaking. 10 CFR part 430, subpart C, appendix A, section 5(c). DOE is opting to deviate from this step because DOE believes that providing an opportunity for comment on potential test procedure and energy conservation standards prior to a final coverage determination for consumer air cleaners allows stakeholders an earlier opportunity to provide comment, information, and data that may help inform DOE's priority setting. DOE also notes that in the Energy Conservation Program for Appliance Standards: Procedures, Interpretations, and Policies for Consideration in New or Revised Energy Conservation Standards and Test Procedures for Consumer Products and Commercial/Industrial Equipment NOPR published on July 7, 2021, DOE proposed to eliminate the requirement that coverage determination rulemakings must be finalized prior to initiation of a test procedure or energy conservation standard rulemaking. 86 FR 35668, 35672. DOE explained that the coverage determination, test procedure, and energy conservation standard rulemakings are interdependent and a coverage determination defines the product/equipment scope for which DOE can establish test procedure and energy conservation standards. It also signals that inclusion of the consumer product is necessary to carry out the purpose of EPCA, i.e., to conserve energy and/or water. In order to make this determination, DOE needs to consider whether a test procedure and energy conservation standards can be established for the consumer product. If DOE cannot develop a test procedure that measures energy use during a representative average use cycle and is not unduly burdensome to conduct (42 U.S.C. 6293(b)(3)) or prescribe energy conservation standards that result in significant energy savings (42 U.S.C. 6295(o), then making a coverage determination is not necessary as it will not result in the conservation of energy. Thus, it is important that DOE be able to gather information and provide stakeholders an opportunity to comment and provide information and data pertinent to test procedure and energy conservation standard rulemakings, while DOE conducts a coverage determination rulemaking. Id.

In accordance with Section 3(a) of 10 CFR part 430, subpart C, appendix A, DOE notes that it is deviating from that Appendix's provision requiring a 75-day comment period for pre-NOPR rulemaking documents for standards. 10 CFR part 430, subpart C, appendix A, section 6(d)(2). DOE is opting to deviate from this step because the 30-day comment period will allow DOE to review comments received in response to this document before finalizing its coverage determination. It would also help inform the Department in prioritizing any potential rulemakings for air cleaners in light of its other on-going rulemakings and statutory requirements. The U.S. Environmental Protection Agency's (“EPA's”) ENERGY STAR® Program (“ENERGY STAR Program”) includes consumer air cleaners. In light of this, DOE expects that stakeholders have established a strong understanding of the key information and issues that would be of interest to DOE as it considers developing test procedure and energy conservation standards for consumer air cleaners. DOE also expects that test data are likely readily available from the ENERGY STAR Program as well as the Association of Home Appliance Manufacturers' (“AHAM's”) Directory of Certified Portable Electric Room Air Cleaners. 6

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2022-0011; Project Identifier MCAI-2021-00485-T” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend the proposal because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Jiwan Karunatilake, Aerospace Engineer, Airframe and Propulsion Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7300; fax 516-794-5531; email 9-avs-nyaco-cos@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued TCCA AD CF-2021-16, dated April 26, 2021 (TCCA AD CF-2021-16) (also referred to after this as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for certain MHI RJ Aviation ULC Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes, Model CL-600-2C10 (Regional Jet Series 700, 701 & 702) airplanes, Model CL-600-2C11 (Regional Jet Series 550) airplanes, Model CL-600-2D15 (Regional Jet Series 705) airplanes, Model CL-600-2D24 (Regional Jet Series 900) airplanes, and Model CL-600-2E25 (Regional Jet Series 1000) airplanes. You may examine the MCAI in the AD docket on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2022-0011.

This proposed AD was prompted by reports of corrosion on fuel clamshell couplings installed in the fuel tank, and a determination that new or more restrictive airworthiness limitations are necessary. The FAA is proposing this AD to address corroded fuel clamshell couplings in the fuel tank, which, if not removed and replaced, could reduce the ability of the fuel coupling to conduct lightning current and possibly lead to arcing and subsequent fuel tank ignition in the event of a lightning strike. See the MCAI for additional background information.

MHI RJ Aviation has issued Service Bulletin 601R-28-068, Revision A, dated December 21, 2020; and Service Bulletin 670BA-28-041, Revision B, dated January 27, 2021. This service information describes procedures for removing and replacing the fuel clamshell couplings. These documents are distinct because they apply to different airplane models.

MHI RJ Aviation has also issued Temporary Revision (TR) 2S4-002, dated September 1, 2021. This service information describes a Critical Design Configuration Control Limitations (CDCCL) item for bonding of fuel and vent lines for lightning protection to preclude a spark.

MHI RJ Aviation has also issued the following TRs, which describe airworthiness limitations for fuel tank systems.

• TR 2S4-003, dated September 1, 2021; CRJ Series Regional Jet TR ALI-0741, dated October 13, 2020; and CRJ700/900/1000 Series Regional Jet TR ALI-0751, dated April 8, 2021, describe a procedure for removing and replacing self-bonding couplings in the fuel tank.

• CRJ Series Regional Jet TR ALI-0740, dated October 13, 2020, describes a CDCCL item for bonding of fuel and vent lines for lightning protection to preclude a spark.

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

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

This proposed AD would require removing and replacing the fuel clamshell couplings on certain airplanes and revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations.

This proposed AD would require revisions to certain operator maintenance documents to include new actions ( e.g., inspections) and CDCCLs. Compliance with these actions and CDCCLs is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by this proposed AD, the operator may not be able to accomplish the actions described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph (m)(1) of this proposed AD.

The MCAI specifies to revise the CDCCL Items as introduced by Bombardier CL-600-2B19 TR 2D-009, dated October 24, 2020, in Appendix D—Fuel Systems Limitations of Part 2, Airworthiness Requirements, of the MHI RJ Maintenance Requirements Manual (MRM). This proposed AD does not require this action because the TR references Appendix D—Fuel Systems Limitations of Part 2, Airworthiness Requirements, of the MHI RJ MRM, which is not applicable to U.S. airplanes. As a result, this proposed AD would require that the information specified in MHI RJ TR 2S4-002, dated September 1, 2021, is incorporated into Supplement 4—FAA Fuel System Limitations of Part 2, Airworthiness Requirements, of the MHI RJ MRM as required by paragraph (h)(1) of this proposed AD. MHI RJ TR 2S4-002, dated September 1, 2021, addresses the unsafe condition with references that apply to U.S. airplanes and provides the same or better level of safety.

The MCAI also specifies to incorporate the new Fuel System Limitation Task 28-23-00-605 as introduced by Bombardier CL-600-2B19 TR 2D-008, dated October 24, 2020; and to revise the Task Description Effectivity as amended by Bombardier CL-600-2B19 TR 2D-010, dated April 8, 2021; in Appendix D—Fuel Systems Limitations of Part 2, Airworthiness Requirements, of the MHI RJ MRM. This proposed AD does not require these actions because these TRs also reference Appendix D—Fuel Systems Limitations of Part 2, Airworthiness Requirements, of the MHI RJ MRM, which is not applicable to U.S. airplanes. As a result, this proposed AD would require that the information specified in MHI RJ TR 2S4-003, dated September 1, 2021, is incorporated into Supplement 4—FAA Fuel System Limitations of Part 2, Airworthiness Requirements, of the MHI RJ MRM, as specified in paragraph (h)(2) of this proposed AD. MHI RJ TR 2S4-003, dated September 1, 2021, addresses the unsafe condition with references that apply to U.S. airplanes and provides the same or better level of safety.

The FAA estimates that this proposed AD affects 914 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

The FAA has determined that revising the maintenance or inspection program takes an average of 90 work-hours per operator, although the FAA recognizes that this number may vary from operator to operator. In the past, the FAA has estimated that this action takes 1 work-hour per airplane. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, the FAA estimates the total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).

According to the manufacturer, some or all of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. The FAA does not control warranty coverage for affected individuals. As a result, the FAA has included all known costs in the cost estimate.

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

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

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

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

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

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

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

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

FinCEN is issuing this NPRM pursuant to 31 U.S.C. 5318(g)(8), as added by section 6212 of the AML Act, 1 which requires the Secretary of the Treasury (the Secretary) to issue rules establishing a pilot program that permits a financial institution subject to a SAR reporting requirement under 31 U.S.C. 5318(g) to share SARs and related information, including the fact that a SAR has been filed, with the institution's foreign branches, subsidiaries, and affiliates for the purpose of combating illicit finance risks. 2

Enacted in 1970 and amended most recently by the AML Act, the BSA aids in the prevention of money laundering, terrorism financing, and other illicit financial activity, and the protection of U.S. national security. 3 The purposes of the BSA include, among other things, “requir[ing] certain reports or records that are highly useful in—(A) criminal, tax, or regulatory investigations, risk assessments, or proceedings; or (B) intelligence or counterintelligence activities, including analysis, to protect against terrorism” and “establish[ing] appropriate frameworks for information sharing” among financial institutions and government authorities, among others. 4

The Secretary is authorized to require domestic financial institutions or nonfinancial trades or businesses to maintain appropriate procedures to ensure compliance with the BSA and the regulations promulgated thereunder or to guard against money laundering, the financing of terrorism, and other forms of illicit finance. 5 The Secretary has delegated to the Director of FinCEN the authority to implement, administer, and enforce compliance with the BSA and associated regulations. 6

The BSA authorizes the Secretary to require the reporting of suspicious transactions. 7 FinCEN's implementing regulations require a financial institution to file a SAR if the financial institution knows, suspects, or has reason to suspect that a transaction conducted or attempted by, at, or through the financial institution: (i) Involves funds derived from illegal activity or is an attempt to disguise funds derived from illegal activity; (ii) is designed to evade regulations promulgated under the BSA; or (iii) lacks a business or apparent lawful purpose or is not the sort in which the particular customer would normally engage and the financial institution knows of no reasonable explanation for the transaction. 8 Pursuant to FinCEN's regulations implementing the BSA, financial institutions obligated to file SARs include banks, casinos and card clubs, money services businesses, brokers or dealers in securities, mutual funds, insurance companies, futures commission merchants and introducing brokers in commodities, loan and finance companies, and housing government-sponsored enterprises. 9

The BSA provides that a financial institution and its directors, officers, employees, and agents are prohibited from notifying any person involved in a suspicious transaction that the transaction was reported, or from otherwise revealing any information that would reveal that the transaction has been reported. 10 FinCEN has issued implementing regulations that generally prohibit the disclosure of a SAR or information revealing the existence of a SAR by a financial institution and its directors, officers, employees, and agents. 11 Provided that no person involved in a reported transaction is notified that the transaction has been reported, the regulation specifies that it is not to be construed as prohibiting disclosure to appropriate law enforcement agencies, regulatory authorities that examine the financial institution for compliance with the BSA, or FinCEN. 12 The regulation further specifies that it is not to be construed as prohibiting a financial institution to share the underlying facts, transactions, and documents upon which a SAR is based, including sharing such materials with another financial institution for the preparation of a joint SAR. 13 It also specifies that a financial institution can share a SAR within its corporate organizational structure for purposes consistent with Title II of the BSA as determined by regulation or in guidance. 14

In 2006, FinCEN and the Federal banking agencies issued guidance on the sharing of SARs with head offices and controlling companies (2006 Guidance). 15 The 2006 Guidance states that a U.S. branch of a foreign bank may share a SAR with its head office, and a U.S. bank or savings association may share a SAR with its controlling company, whether domestic or foreign. 16 At the same time, FinCEN issued similar guidance permitting securities broker-dealers, futures commission merchants, and introducing brokers in commodities to share SARs with parent entities, both domestic and foreign, and later in 2006, FinCEN released related guidance to mutual funds. 17 FinCEN permitted such sharing because a financial institution's head office or controlling entity may have a need to discharge oversight responsibilities with respect to enterprise-wide risk management and compliance with applicable laws and regulations. 18

In 2010, following an amendment to FinCEN's SAR regulations, 19 FinCEN issued guidance on sharing SARs with certain U.S. affiliates of depository institutions (2010 Guidance). 20 The 2010 Guidance generally permits the sharing of SARs and related information by depository institutions with their affiliates that are subject to a SAR regulation. U.S. affiliates of depository institutions that are subject to SAR filing obligations include brokers or dealers in securities, futures commission merchants and introducing brokers in commodities, money services businesses, and residential mortgage lenders or originators. 21 At the same time, FinCEN issued similar guidance permitting securities broker-dealers, mutual funds, futures commission merchants, and introducing brokers in commodities to share SARs with certain affiliates. 22 The 2010 Guidance also explained that “[b]ecause foreign branches of U.S. banks are regarded as foreign banks for purposes of the BSA, under this guidance, they are `affiliates' that are not subject to a SAR regulation” and therefore a U.S. bank may not share SARs, or any information that would reveal the existence of the SAR, with its foreign branches. In 2017, FinCEN also issued guidance confirming that casinos and card clubs may share SARs with domestic parents and affiliates, subject to certain limitations. 23

The 2006 and 2010 Guidance also made clear that there may be circumstances under which the financial institution, its affiliate, or both entities could be liable for direct or indirect disclosure of a SAR or any information that would reveal the existence of a SAR. Accordingly, the 2006 and 2010 Guidance stated that a financial institution, as part of its internal controls, should have policies and procedures in place to protect the confidentiality of the SAR. 24

On January 1, 2021, Congress enacted the AML Act to, among other things, improve coordination and information sharing among the agencies tasked with administering AML/countering the financing of terrorism (AML/CFT) requirements and to modernize the AML/CFT laws to better adapt the government and private sector response to new and emerging threats. 25

Section 6212(a) of the AML Act amends the BSA by adding 31 U.S.C. 5318(g)(8), which requires the Secretary to issue rules establishing a pilot program that permits a financial institution with a SAR reporting obligation to share SARs and related information with its foreign branches, subsidiaries, and affiliates for the purpose of combating illicit finance risks. 26 In issuing the rules, the Secretary must ensure that the sharing of information is limited by the requirements of Federal and State law enforcement operations, takes into account potential concerns of the intelligence community, is subject to appropriate standards and requirements regarding data security and the confidentiality of personally identifiable information, and excludes sharing with foreign branches, subsidiaries, and affiliates in certain jurisdictions. 27 Further, the pilot program permits the Secretary to consider, implement, and enforce provisions that would hold a foreign affiliate of a U.S. financial institution liable for the disclosure of SARs and related information shared under the pilot program. 28

The pilot program must terminate three years after the date of the AML Act's enactment ( i.e., January 1, 2024), unless the Secretary extends the pilot for not more than two years upon submitting a report to the Senate Committee on Banking, Housing, and Urban Affairs and the House Committee on Financial Services that includes: (1) A certification and a detailed explanation of the reasons that the extension is in the national interest of the United States; (2) an evaluation of the usefulness of the pilot program, including a detailed analysis of any illicit activity identified or prevented as a result of the program, after appropriate consultation by the Secretary with the participants in the pilot program; and (3) a detailed legislative proposal providing for a long-term extension of activities under the pilot program, measures to ensure data security, and confidentiality of personally identifiable information, including expected budgetary resources for those activities, if the Secretary determines that a long-term extension is appropriate. 29

Under the pilot program, a financial institution may not share SARs or related information with a foreign branch, subsidiary, or affiliate located in: (1) The People's Republic of China; (2) the Russian Federation; or (3) a jurisdiction that is a state sponsor of terrorism, that is subject to sanctions imposed by the Federal Government, or that the Secretary has determined cannot reasonably protect the security and confidentiality of such information. 30 The Secretary may make exceptions, on a case-by-case basis, for a financial institution located in the People's Republic of China or the Russian Federation by notifying the Senate Committee on Banking, Housing, and Urban Affairs and the House Committee on Financial Services that such an exception is in the national security interest of the United States. 31

Not later than 360 days after the pilot program rules are promulgated, and annually thereafter for three years, the Secretary, or the Secretary's designee, must brief the Senate Committee on Banking, Housing, and Urban Affairs and the House Committee on Financial Services on: (1) The degree of information sharing permitted under the pilot program and a description of criteria used by the Secretary to evaluate the appropriateness of the information sharing; (2) the effectiveness of the pilot program in identifying or preventing the violation of a United States law or regulation and mechanisms that may improve that effectiveness; and (3) any recommendations to amend the design of the pilot program. 32

Information related to reports of suspicious transactions received by a financial institution from a foreign affiliate with respect to a suspicious transaction relevant to a possible violation of law or regulation shall be subject to confidentiality requirements that are the same as those that apply to SARs filed under 31 U.S.C. 5318(g)(1). 33 No financial institution may establish or maintain any operation located outside of the United States the primary purpose of which is to ensure compliance with the BSA as a result of the sharing granted under the pilot program. 34 Finally, an “affiliate” is defined for purposes of the pilot program as “an entity that controls, is controlled by, or is under common control with another entity.”  35 The terms “Bank Secrecy Act,” “State bank Supervisor,” and “State credit union supervisor” have the same meanings given in Section 6003 of the AML Act.

This proposed rule would add a new section at 31 CFR 1010.240 establishing a pilot program that permits financial institutions with a SAR reporting obligation under 31 U.S.C. 5318(g) and FinCEN's regulations to share SARs and related information with their foreign branches, subsidiaries, and affiliates for the purpose of combating illicit finance risks.

Application process: In issuing the pilot program rules, FinCEN must take into account certain considerations to ensure that the sharing of information permitted under the pilot program is limited by the requirements of Federal and State law enforcement operations, takes into account potential concerns of the intelligence community, and is subject to appropriate standards and requirements regarding data security and the confidentiality of personally identifiable information. Participant financial institutions must also comply with the applicable jurisdictional restrictions described above.

To that end, the proposed rule requires a financial institution to submit a written application to FinCEN that: (1) Identifies the institution's point of contact for pilot program-related correspondence; (2) specifies the foreign branches, subsidiaries, and affiliates with which the financial institution intends to share SARs and related information; (3) specifies the particular purpose or purposes for which the foreign branches, subsidiaries, and affiliates intend to use SARs and related information, including the operational jurisdictions of such entities, as well as whether such entities will be providing reciprocal information to the applicant financial institution; (4) provides an estimated commencement date for the pilot program, and; (5) describes internal controls in place to prevent unauthorized disclosures of SARs and related information. 36 Given the sensitive nature of the information contained in or relating to a SAR, including personally identifiable information of U.S. persons, and the jurisdictional limitations set out in the statute, FinCEN believes a formal application and approval process is necessary to ensure that adequate safeguards are in place before allowing a financial institution to share SARs and related information with its foreign branches, subsidiaries, and affiliates.

The proposed rule also specifies that applicant financial institutions should, at a minimum, implement certain controls, including confidentiality agreements and procedures for personnel located in the United States to review requests from foreign law enforcement, foreign regulators, or an outside foreign party for SARs and related information, and to immediately notify FinCEN of such requests. Given the sensitive nature of SAR information, participant financial institutions and their foreign branches, subsidiaries, or affiliates must direct the requesting authority to both contact FinCEN about obtaining the requested SAR or related information and to seek to obtain such records or information through a request to the United States pursuant to a mutual legal assistance treaty or another appropriate mechanism for obtaining records from the United States. Participant financial institutions shall also maintain records sufficient to identify the specific foreign jurisdictions in which branches, subsidiaries, or affiliates of financial institutions are located and that received any specific SAR or related information. Such records shall be maintained so as to enable the participant financial institution to readily report this information to FinCEN upon request. FinCEN is including this requirement because, in the event of an unauthorized disclosure, it will assist in FinCEN's efforts to identify those individuals and entities that were in possession of SARs and related information that were inappropriately disclosed.

The proposed rule requires that an application specify those foreign branches, subsidiaries, and affiliates with which a financial institution intends to share SARs and related information pursuant to the proposed pilot program. Upon receipt of an application, FinCEN would determine a financial institution's suitability for participation in the pilot program based on FinCEN's assessment of the financial institution's internal controls, as well as the entities with which it intends to share information and corresponding jurisdictions in which the entities are located. FinCEN will notify the financial institution's relevant Federal functional regulator of the application. FinCEN will also consult with the relevant Federal functional regulator and other relevant agencies on the application, as needed. The proposed rule also states that FinCEN will share information received pursuant to the application process with relevant Federal functional regulators, or, as appropriate, other relevant agencies. 37 The proposed rule also states that FinCEN will limit the sharing of SARs and related information based on the requirements of Federal and State law enforcement operations, and will take into account concerns of the intelligence community.

FinCEN expects that the resourcing and strengths of compliance programs and internal control frameworks will vary among applicant financial institutions. Consequently, the proposed rule permits FinCEN to require implementation of additional internal controls to ensure data security and confidentiality of SARs and related information, including the personally identifiable information contained therein, as a prerequisite to approving an application. As the pilot program matures, and best practices for ensuring data security and confidentiality are identified, FinCEN may require certain participant financial institutions to implement additional internal controls as a condition for continued participation in the pilot program. In response to concerns of the intelligence community, or to take into account requirements for State and Federal law enforcement operations, FinCEN may also require participant financial institutions to enhance or modify internal controls as a condition for continued participation in the pilot program.

The proposed rule also provides a mechanism by which participant financial institutions may seek modifications to the internal controls specified in its FinCEN-approved application to address operational contingencies, resourcing challenges, or other circumstances. Specifically, the proposed rule would require participant financial institutions to submit a request to FinCEN that details the nature and extent of the requested changes to applicable internal controls before implementing any such modifications. FinCEN, in consultation with relevant Federal functional regulators, as needed, would approve or reject such requests for modification, or condition its approval on implementation of additional controls, as appropriate. FinCEN, in its sole discretion, may also modify a financial institution's participation in the pilot program based on the requirements of Federal and State law enforcement operations or concerns of the intelligence community.

The proposed rule would permit FinCEN to terminate a financial institution's participation in the pilot program at any time. Grounds for termination could include, but are not limited to, actual, or unreasonable risk of, unauthorized disclosures of SARs and related information; significant internal control deficiencies identified while participating in the pilot program; failure to adhere to the specific requirements for participation; or any other issues that indicate that a participant financial institution is unable to adequately safeguard against unauthorized disclosures of SARs and related information or to ensure adequate data security and confidentiality of personally identifiable information.

Given the limited duration of the pilot program, FinCEN will make every effort to expeditiously review applications and provide responses to potential participant financial institutions in a timely manner. To that end, FinCEN will seek to provide responses within 90 days of receipt of an application to participate in the pilot program. FinCEN welcomes comments on whether this time period is sufficient to encourage participation in the pilot program during the timeframe allotted by Congress.

Quarterly reporting requirement: The proposed rule would require participant financial institutions to report certain information to FinCEN on a quarterly basis, including: (1) The total number of SARs and related information shared; (2) the name and jurisdiction of each entity that received SARs and related information, the relationship between the entity and the participant financial institution, and the intended purposes and uses for which the SARs and related information were shared; (3) legal and compliance issues encountered; (4) technical difficulties and challenges; (5) enhancements to the financial institution's AML/CFT program enabled as a result of participating in the pilot program, to include reallocation of resources to higher-priority AML/CFT risks, such as those described in FinCEN's National AML/CFT Priorities, issued pursuant to Section 5318(h)(4)(A) of the BSA; and, (6) lessons learned, to include any identified inefficiencies in the institution's AML/CFT program. The proposed rule's quarterly reporting requirement would provide a control to ensure that the sharing of information permitted under the pilot program is in compliance with the statutory requirements with regard to Federal and State law enforcement operations, concerns of the intelligence community, and ensuring appropriate standards and requirements are in place with respect to data security and confidentiality of personally identifiable information. FinCEN expects that quarterly reporting will yield critical information and data that should shed light on the effectiveness of the pilot program and inform best practices for information sharing and confidentiality of SARs and related information. FinCEN intends to use this information to satisfy specific statutory reporting requirements, including annual implementation updates to Congress, as well as the report and accompanying legislative proposal for any request to extend the pilot program. 38

Quarterly reporting should also enable FinCEN, and Federal functional regulators, as appropriate, to identify pilot program-related internal control deficiencies at participant financial institutions that may need to be addressed as a condition for continued participation in the pilot program. For instance, a participant financial institution may report a legal and compliance issue under the rule, such as an internal audit finding of ineffective controls on SAR confidentiality. To ensure ongoing compliance with the requirements of the pilot program, and a financial institution's suitability to continue to participate, FinCEN intends to share these quarterly reports with relevant Federal functional regulators and consult with them as appropriate.

Prohibition involving certain jurisdictions: The proposed rule would prohibit participant financial institutions from sharing SARs and related information with foreign branches, subsidiaries, and affiliates in specific jurisdictions, including the People's Republic of China, the Russian Federation, jurisdictions that are state sponsors of terrorism, jurisdictions subject to sanctions imposed by the Federal Government, and jurisdictions the Secretary has determined cannot reasonably protect the security and confidentiality of such information.

For purposes of this section, a “state sponsor of terrorism” is a jurisdiction so determined by the U.S. Department of State. Jurisdictions “subject to sanctions imposed by the Federal Government” are jurisdictions with governments whose property and interests in property in U.S. jurisdiction are blocked pursuant to U.S. sanctions authorities, as well as jurisdictions subject to broad prohibitions on transactions by U.S. persons involving that jurisdiction, such as prohibitions on importing or exporting goods, services, or technology to the jurisdiction or dealing in goods or services originating from the jurisdiction, pursuant to U.S. sanctions authorities. FinCEN welcomes comments on this interpretation, and encourages financial institutions to monitor for sanctions issued by the U.S. Government to ensure compliance with this requirement.

Under 31 U.S.C. 5318(g)(8)(C)(i)(III)(c), as added by Section 6212(C)(i)(III)(cc) of the AML Act, FinCEN has determined that a jurisdiction that FinCEN has identified as a primary money laundering concern pursuant to Sections 311 of the USA PATRIOT Act (Pub. L. 107-56) or 9714 of the Combating Russian Money Laundering Act (Pub. L. 116-283) cannot reasonably protect the security and confidentiality of SARs and related information given the deficient AML/CFT controls in those jurisdictions as identified by FinCEN. The proposed rule, therefore, also prohibits financial institutions from sharing SARs and related information with foreign branches, subsidiaries, and affiliates in jurisdictions identified by FinCEN as such. 39 FinCEN may further restrict sharing of SARs and related information, as authorized by statute, based on requirements of Federal or State law enforcement operations, the concerns of the intelligence community, or where FinCEN has otherwise determined that such information cannot reasonably be protected.

The proposed rule would authorize the Secretary to grant narrow exceptions on a case-by-case basis for foreign branches, subsidiaries, and affiliates located in the People's Republic of China and the Russian Federation. Under the proposed rule, the Secretary would be required to notify the Committee on Banking, Housing, and Urban Affairs of the U.S. Senate and the Committee on Financial Services of the U.S. House of Representatives that such exceptions are in the national security interest of the United States.

Treatment of foreign jurisdiction-originated reports. As required by 31 U.S.C. 5318(g)(9), as added by the AML Act, information related to a report received by a financial institution from a foreign affiliate with respect to a suspicious transaction relevant to a possible violation of law or regulation shall be subject to the same confidentiality requirements as reports filed under 31 U.S.C. 5318(g).

Prohibition on offshoring compliance operations: As required by 31 U.S.C. 5318(g)(10), as added by the AML Act, the proposed rule would expressly prohibit participant financial institutions from establishing or maintaining any operation located outside of the United States the primary purpose of which is to ensure compliance with the BSA as a result of the information sharing granted by this pilot program.

Duration of the pilot program: The proposed rule implements the statutory requirement that the pilot program terminate three years after enactment of the AML Act. The rule would permit the Secretaryto extend the pilot program for not longer than two years upon reporting to the Committee on Banking, Housing, and Urban Affairs of the Senate and the Committee on Financial Services of the House of Representatives, as required by the AML Act.

Prohibition on Disclosure: Under 31 U.S.C. 5318(g)(8)(B)(ii), the pilot program shall “permit the Secretary to consider, implement, and enforce provisions that would hold a foreign affiliate of a U.S. financial institution liable for the disclosure of SARs and related information.” The proposed rule provides that, except to the extent authorized pursuant to the pilot program or in existing regulations or guidance, a participant financial institution, its foreign branches, subsidiaries and affiliates, and certain other associated individuals may not disclose a SAR or related information shared pursuant to the pilot program. The reference to “existing regulations and guidance” in the proposed rule accounts for exceptions to SAR confidentiality that apply to filing institutions located or doing business within the United States, and their directors, officers, employees, or agents. 40

A participant financial institution must implement policies, procedures, and internal controls that are reasonably designed to ensure that its foreign branches, subsidiaries, or affiliates do not permit unauthorized disclosures of SARs or related information. FinCEN, in consultation with relevant Federal functional regulators, as needed, will assess the sufficiency of a financial institution's internal controls before approving an application to participate in the pilot program. SARs and related information contain highly sensitive information, including sensitive information about U.S. persons, and it is vital that they be protected. FinCEN encourages participant financial institutions to ensure that their foreign branches, subsidiaries, or affiliates have sufficient internal controls in place prior to sharing any SARs or related information.

Under 31 U.S.C. 5321 and 31 U.S.C. 5322, civil penalties and criminal sanctions may be imposed on participant financial institutions, directors, officers, employees, or agents for violations of the prohibition on the disclosure of SARs and related information. The proposed rule makes clear that this prohibition also applies to foreign affiliates, and that foreign affiliates can be held liable for civil penalties and criminal sanctions pursuant to 31 U.S.C. 5321 and 31 U.S.C. 5322. Civil money penalties under 31 U.S.C. 5321(a)(1) apply to a “domestic financial institution or nonfinancial trade or business,” and the term “domestic financial institution” is defined as referring to “an action in the United States” of the financial institution. 41 However, 31 U.S.C. 5318(g)(8)(B)(ii) specifically authorizes the Secretary to implement and enforce “provisions that would hold a foreign affiliate of a U.S. financial institution liable for the disclosure of SARs and related information.” In light of that mandate, FinCEN would construe its authority to impose civil money penalties under 31 U.S.C. 5321(a)(1) as applying to foreign affiliates that disclose SARs and related information in violation of the proposed rule, without regard to whether the unauthorized disclosure occurs in the United States.

Definitions: 31 U.S.C. 5318(g)(11) defines an affiliate as “an entity that controls, is controlled by, or is under common control with another entity.” The broad nature of this definition would include branches and subsidiaries of participant financial institutions. Therefore, the proposed rule both adopts this definition and includes branches and subsidiaries within the term affiliate for the purpose of this proposed pilot program.

FinCEN welcomes comment on all aspects of this proposed rule and encourages all interested parties to provide their views.

With respect to the effect of establishing a pilot program to permit financial institutions to share SARs with foreign branches, subsidiaries, and affiliates, FinCEN in particular requests comment from financial institutions and members of the public on the following questions:

(1) Describe the expected costs and associated burdens of complying with the proposed pilot program requirements, to the extent that a financial institution chooses to participate.

(2) Describe the expected impact, including costs and/or associated burdens, of complying with the statutory prohibition on offshoring compliance operations within the context of the proposed pilot program.

(3) Describe expected technical challenges to implementation that could make it harder or more expensive to participate in the pilot program.

(4) Describe the expected benefits to a financial institution from being permitted to share SARs and related information with a foreign branch, subsidiary, or affiliate for the purpose of combating illicit finance risks. Would the proposed sharing of SARs and related information enable a financial institution to shift or allocate resources to higher-priority AML/CFT risks?

(5) Has FinCEN struck a reasonable balance between facilitating information sharing of SARs and related information permitted under the pilot program and imposing conditions to protect the confidentiality and prevent unauthorized disclosures of SARs and related information? If not, how could FinCEN more reasonably balance these considerations?

(6) Describe potential challenges in protecting the confidentiality of SARs and related information and preventing unauthorized disclosures in connection with participation in the pilot program. Are there additional provisions FinCEN could include in the pilot program that would better enable a financial institution to comply with the program confidentiality requirements and ensure accurate reporting? How does a financial institution expect to protect SAR confidentiality and prevent unauthorized SAR disclosures if foreign regulatory examinations of foreign affiliates of U.S. financial institutions requests access to such foreign institutions' files? Are there jurisdictions in which this information would be subject to disclosure to non-government parties by legal process?

(7) For the quarterly reports FinCEN is proposing to require, are there any other particular metrics FinCEN should include in the current list for required feedback?

(8) Is FinCEN's proposed timeline of 90 days to respond to application requests reasonable? Would such a timeline encourage financial institutions to participate in the pilot program?

(9) Should FinCEN consider a broader, longer-term program that would enable financial institutions to share SARs and related information with their foreign branches, subsidiaries, and affiliates for the purpose of combating illicit finance risks?

Executive Orders 13563 and 12866 direct agencies to assess costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, and public health and safety effects; distributive impacts; and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. It has determined that this proposed rule is not a significant regulatory action for purposes of Executive Order 12866. Accordingly, a regulatory impact analysis is not required.

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601, et seq. ) requires an agency either to provide an initial regulatory flexibility analysis with a proposed rule or certify that the proposed rule will not have a significant economic impact on a substantial number of small entities. This proposed regulation on its face would apply to all financial institutions with a SAR reporting obligation under 31 U.S.C. 5318(g). However, because of the voluntary nature of the proposed rule, only financial institutions choosing to participate in the pilot program would be affected. FinCEN believes the proposed regulatory changes are unlikely to have a significant economic impact on a substantial number of small entities, as smaller entities are less likely to have foreign-based branches, subsidiaries, and affiliates. FinCEN, however, recognizes the limitations in readily available data about potential costs and benefits and has prepared an initial regulatory flexibility analysis pursuant to the RFA. FinCEN welcomes comments on all aspects of the initial regulatory flexibility analysis. A final regulatory flexibility analysis will be conducted after consideration of comments received during the comment period.

The need for, and objectives of, the proposed regulations are established in 31 U.S.C. 5318(g), as amended by Section 6212 of the AML Act. The purpose of the proposed regulation is to establish a pilot program that permits a financial institution with a reporting obligation under 31 U.S.C. 5318(g) to share information related to SARs, including that such a report has been filed, with the institution's foreign branches, subsidiaries, and affiliates for the purpose of combating illicit finance risks.

The proposed regulations would apply to financial institutions with a reporting obligation under 31 U.S.C. 5318(g). FinCEN most recently identified these institutions in the Paperwork Reduction Act of 1995 (PRA) notice renewing information collection related to SARs. 42 While the full list of financial institutions with a reporting obligation under 31 U.S.C. 5318(g) includes a substantial number of small entities, FinCEN does not believe that a substantial number of small entities would be affected by the proposed regulation. The proposed pilot program would apply only to those institutions that choose to participate, and it is unlikely that small entities would choose to participate in a SAR sharing pilot program, as they are less likely to have foreign branches, subsidiaries, and affiliates.

The compliance costs for entities that choose to participate in the pilot program would include implementation and administrative costs. These would include costs to file an initial application with, and provide quarterly updates to, FinCEN, as well as costs associated with ensuring that adequate controls are in place to abide by the conditions imposed by FinCEN.

FinCEN is not aware of any duplicative, overlapping, or conflicting Federal rules with respect to pilot programs that enable financial institutions to share SARs and related information with their foreign branches, subsidiaries, and affiliates. As discussed previously, existing guidance from FinCEN and Federal functional regulators prohibits U.S. financial institutions from sharing SARs with foreign branches, subsidiaries, and affiliates, and allows only for sharing SARs with head offices and controlling entities of U.S. financial institutions, consistent with the 2006 Guidance, and U.S. affiliates within a financial institution's corporate organizational structure, consistent with the 2010 Guidance.

FinCEN considered foregoing the requirement for financial institutions to submit an application and provide quarterly updates on the progress of the pilot program. Given the sensitive nature of the information contained in or relating to a SAR, including personally identifiable information of U.S. persons, and the jurisdictional limitations set out in the statute, FinCEN proposes requiring an application and approval process to ensure that adequate safeguards are in place before allowing a financial institution to share information with its foreign branches, subsidiaries, and affiliates. Additionally, as required by the AML Act, FinCEN must provide annual updates to the Committee on Banking, Housing, and Urban Affairs of the Senate and the Committee on Financial Services of the House of Representatives on the pilot program, and submit a detailed legislative proposal concerning the long-term extension of the pilot, if appropriate. FinCEN therefore proposes to require financial institutions to provide quarterly updates to ensure that FinCEN, in consultation with relevant Federal functional regulators, as needed, can meet these statutory requirements.

Section 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), Public Law 104-4 (March 22, 1995), requires that an agency prepare a budgetary impact statement before promulgating a rule that may result in expenditure by the State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. If a budgetary impact statement is required, Section 202 of the Unfunded Mandates Act also requires an agency to identify and consider a reasonable number of regulatory alternatives before promulgating a rule. Taking into account the factors noted above and using conservative estimates of average labor costs in evaluating the cost of the burden imposed by the proposed regulation, FinCEN has determined that it is not required to prepare a written statement under Section 202.

The recordkeeping and reporting requirements contained in this proposed rule (31 CFR 1010.240) have been submitted by FinCEN to the Office of Management and Budget (“OMB”) for review in accordance with the PRA. Written comments and recommendations for the proposed information collection can be submitted by visiting www.reginfo.gov/public/do/PRAMain. Find this particular document by selecting “Currently Under Review—Open for Public Comments” or by using the search function. Comments are welcome and must be received by March 28, 2022. In accordance with the requirements of the PRA and its implementing regulations, 5 CFR part 1320, the following information concerning the collections of information is presented to assist those persons wishing to comment on the information collections. Currently, financial institutions subject to a SAR requirement must collect, retain, and report certain information related to suspicious activity that takes places by, at, or through the financial institution. This proposed rule would permit financial institutions to share this information with their foreign branches, subsidiaries, and affiliates, subject to the conditions and prohibitions described above. As part of the application process to request participation in the pilot program, FinCEN is proposing to require a written submission with quarterly updates. As there is no requirement to participate in the pilot program, FinCEN has calculated an hourly burden only for those financial institutions that voluntarily decide to participate.

Description of Recordkeepers: Banks, casinos and card clubs, money services businesses, brokers or dealers in securities, mutual funds, insurance companies, futures commission merchants and introducing brokers in commodities, loan or finance companies, and housing government sponsored enterprises.

Estimated Number of Affected Institutions: FinCEN estimates that approximately 100 financial institutions will decide to participate in the pilot program, which will permit the financial institutions to share SARs and related information with their foreign branches, subsidiaries, and affiliates. Because this is a new voluntary program, this is an estimate, and FinCEN is requesting comment from institutions that anticipate voluntarily participating in the pilot program.

Estimated Average Annual Burden Hours per Recordkeeper: Fewer than 59 hours per participant financial institution.

FinCEN estimates that the recordkeeping burden per recordkeeper to submit a written application to FinCEN requesting participation in the pilot program, including a description of internal controls in place to limit unauthorized disclosures of SARs and related information, is 20 hours per year. This includes filing an application to participate that includes notice that a person has been designated as a point-of-contact for ongoing correspondence with FinCEN during the pilot program, written pre-commencement notice that a participant financial institution has the appropriate agreements and internal controls in place to begin sharing SARs and related information, and written notice that a commencement date has been set. FinCEN estimates an additional one-hour-per-year burden in the event a participant financial institution needs to contact FinCEN in writing to request advance approval for any modifications to the commitments in the written application. FinCEN is requesting comment on how frequently a prospective participant financial institution anticipates that it may need to modify the commitments listed in its application.

FinCEN estimates that the recordkeeping burden to draft and maintain written confidentiality agreements for personnel granted access to shared information, and to draft and maintain documented policies and procedures to account for any requests or demands for SARs and related information under foreign law, is 20 hours per year. FinCEN estimates that the recordkeeping burden to prepare and submit quarterly reports, to include technical difficulties encountered, legal issues uncovered, the outcome of requests or demands made for SARs shared pursuant to the pilot program, successes or lessons learned, is four hours per report, for a total of 16 hours per year (4 hours × 4 reports per year).

FinCEN estimates one hour for the recordkeeping burden associated with the notice requirement, where a participant institution must notify FinCEN of any requests or demands from foreign law enforcement, foreign regulators, or other outside foreign party for SARs and related information shared with foreign branches, subsidiaries, and affiliates pursuant to the pilot program, and notify FinCEN of the outcome of such request and any further attempts to obtain such SARs and related information. FinCEN also estimates one hour for the burden associated with maintaining records sufficient to identify the specific foreign jurisdictions in which branches, subsidiaries, or affiliates of financial institutions are located and that received any specific SAR or related information.

FinCEN understands that some participant financial institutions may have existing SAR sharing procedures and confidentiality agreements in place that could be leveraged for the pilot program, whereas other institutions may need to create them. For that reason, FinCEN estimates that the proposed rule would add roughly 59 burden hours per participant financial institution a year based on the above calculations. 43

Estimated Total Annual Reporting Burden: 5,900 hours (100 financial institutions multiplied by 59 hours). This is a new regulatory requirement that requires a new OMB control number. The OMB control number assigned to the recordkeeping and reporting requirements described in this notice is 1506-XXXX. 5,900 hours will be assigned to new OMB control number 1506-XXXX.

Specific Questions for Comment:

(1) FinCEN is requesting comment from financial institutions that anticipate voluntarily participating in the pilot program on whether the estimate of 100 financial institutions that might participate in a pilot program is accurate, so that FinCEN can further refine its estimate of expected participants.

(2) Is FinCEN's burden estimate of 20 hours per year for a financial institution to draft and submit an application reasonable?

(3) Is FinCEN's burden estimate of 20 hours per year for a financial institution to draft and maintain written confidentiality agreements and maintain policies and procedures related to disclosure requests reasonable?

(4) Is FinCEN's burden estimate of 16 hours per year for a financial institution to submit four quarterly reports reasonable?

(5) Is FinCEN's burden estimate of one hour per year for a financial institution to refer law enforcement, regulator, or outside party requests to FinCEN reasonable?

(6) Is FinCEN's burden estimate of one hour per year for a financial institution to maintain records to sufficiently track SARs such that a participant financial institution can identify a specific SAR shared with a specific foreign branch, subsidiary, or affiliate?

(7) How often does an institution receive requests or demands for SARs and related information from law enforcement, a regulator, or other outside party?

General Questions for Comment: In addition to the questions listed above, FinCEN invites comment on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of FinCEN, including whether the information will have practical utility; (b) the accuracy of the estimated burden associated with the proposed collection of information; (c) how the quality, utility, and clarity of the information to be collected may be enhanced; and (d) how the burden of complying with the proposed collection of information may be minimized, including through the application of automated collection techniques or other forms of information technology.

For the reasons set forth in the preamble, part 1010 of chapter X of title 31 of the Code of Federal Regulations is proposed to be amended as follows:

The National Park Service (NPS) enters into concession contracts with other entities to provide commercial visitor services in over 100 units of the National Park System. Examples of such services include lodging, food, retail, marinas, transportation, and recreation. NPS concession contracts generate approximately $1.6 billion per year in gross receipts, while returning approximately $133 million in franchise fees to the NPS. What was commonly known as the National Park Service Concession Policies Act of 1965 (1965 Act), Public Law 89-249, provided the first comprehensive statutory authority for the NPS to issue concession contracts. Since the repeal of the 1965 Act, concession contracts have been awarded under the Concessions Management Improvement Act of 1998 (1998 Act), 54 U.S.C. 101901-101926. NPS regulations in 36 CFR part 51 govern the solicitation and award of concession contracts issued under the 1998 Act and the administration of concession contracts issued under the 1965 and 1998 Acts.

The National Park Service Centennial Act (Centennial Act), 54 U.S.C. 101931-101938, established the Visitor Experience Improvements Authority (VEIA) allowing the NPS to solicit, award, and administer commercial services contracts for the improvement, modernization, and expansion of commercial visitor facilities and visitor services programs in units of the National Park System. The VEIA supplements but does not replace the existing authority granted to the NPS in the 1998 Act to enter into concession contracts or any other existing NPS authorities to provide commercial visitor services in units of the National Park System. The VEIA is also separate from authorities granted under the Office of Federal Procurement Policy Act and Federal Acquisition Regulations.

The VEIA is intended to provide additional tools to expand, modernize, and improve the condition of commercial facilities and visitor services using contracting models that differ from and are in addition to the concession contracts used under the 1998 Act. These models include management agreements and percentage lease agreements (hereinafter referred to as percentage agreements) found in the private hospitality industry, as well as other contract models that are consistent with the VEIA. These models may be used to provide a variety of commercial visitor services such as lodging, food, retail, marinas, transportation, camping and recreation. The use of industry-standard models may allow and encourage additional companies to bid on new hospitality business opportunities in parks. The VEIA also provides flexibility in the solicitation process. For example, the 1998 Act requires the NPS to consider specific evaluation factors, while the VEIA does not dictate such criteria. This flexibility may allow businesses to more effectively respond to and be evaluated on how they will meet visitor needs for the services being offered. The flexibility of the VEIA also provides the potential to streamline the solicitation process to reduce the burden on businesses submitting proposals, including the ability to negotiate on the terms of the contract and greater ability to modify or adjust operations under existing contracts to reflect changes at the park or different visitor expectations during the contract term. Finally, there are differences in the revenue management and fee structure for contract models that may be used under the VEIA. Under a management agreement, the NPS would pay the operator a base fee plus an incentive fee. The incentive fee would be paid when the operator meets facility maintenance, operating, and visitor service goals. All other revenue would go to the NPS to directly fund operations and improvements. Any increased financial return to the NPS would be used to fund updates to real and personal property and provide commercial visitor services. Under a percentage agreement, the operator would retain the revenue and pay a fee to the NPS. This would be similar to the concession contract model, although the fee structure under a percentage agreement would include payment of a base fee plus a percentage of revenue.

In addition to commercial services contracts, the VEIA authorizes the NPS to enter into professional services contracts related to those commercial services contracts. These may include consulting contracts with hospitality and asset management experts for services such as developing requests for proposals, condition assessments, and operational and financial analysis.

The Centennial Act requires the NPS to promulgate regulations appropriate for implementation of the VEIA. 54 U.S.C. 101936. The Centennial Act also states that the VEIA expires seven years after the enactment of the law. 54 U.S.C. 101938. The NPS has consulted with hospitality industry experts, including academic leaders, hospitality asset management companies, hotel owners and operators, and state agencies to assess current visitor service contract models and best practices in the hospitality industry. The NPS engaged a nationally recognized hospitality management consulting and asset management firm to assist the NPS with developing contracts, requests for qualifications and proposals, and solicitation, contract management, and accounting practices.

The NPS learned that hospitality and other industry-standard practices for commercial services contracts, like those authorized in VEIA, typically include the use of a private bank account to hold the owner's funds for expenditure by the operator. To be consistent with applicable fiscal law, however, the NPS will not deposit Federal funds into a private bank account when implementing VEIA. The proposed rule contains alternative funding guidelines to mimic the benefits afforded the industry-standard commercial services contracts as VEIA intended, while still complying with applicable fiscal law.

The NPS has evaluated certain visitor services currently provided under concession contracts that may be suitable for VEIA commercial services contracts.

The NPS will provide information about the VEIA on the website for the NPS Commercial Services Program at https://www.nps.gov/orgs/csp/index.htm.

The proposed rule includes requirements and limitations applicable to the VEIA that are directed by the Centennial Act. These requirements and limitations would be promulgated in a new part 52 of title 36 CFR. They are explained below.

The NPS may only issue a commercial services contract under the VEIA if the Secretary of the Interior, in this proposed rule acting through the NPS, determines that the contract will expand, modernize, and improve the condition of commercial visitor facilities and the services provided to visitors. Commercial services contracts issued by the NPS under the VEIA must meet two additional criteria. First, the contract must be necessary and appropriate for public use and enjoyment of the National Park System unit where it is located. Second, the contract must be consistent with the preservation and conservation of the resources and values of the unit. These two criteria also must be met for concession contracts.

The NPS may not award contracts under the VEIA for the provision of certain outfitter and guide services, or to authorize the provision of facilities or services for which the Secretary, in this proposed rule acting through the NPS, has granted an existing concessioner a preferential right of renewal under the 1998 Act. The NPS may award contracts under the VEIA without regard to Federal laws and regulations governing procurement by Federal agencies, except for those laws and regulations related to Federal Government contracts that govern working conditions and wage rates and any civil rights provisions otherwise applicable thereto.

The NPS must award VEIA commercial services contracts through a competitive selection process, and must publicly solicit proposals for each commercial services contract before awarding such contract. The NPS must prepare a request for proposals and publish notice of its availability. The NPS may not award a commercial services contract under the VEIA for a term greater than 10 years. The person or entity awarded a contract under the VEIA will not receive leasehold surrender interest in capital improvements (as those terms are defined by the 1998 Act at 54 U.S.C. 101915) constructed under the terms of the contract.

Other than these basic requirements, the VEIA authorized the NPS to design a flexible process for the solicitation and evaluation of proposals. The NPS plans to adjust this process for solicitation and evaluation of proposals to reflect hospitality and other industry practices, accounting for any necessary NPS-specific conditions. In addition to the statutory requirements governing the VEIA, the proposed rule includes defined terms and other provisions that will govern the administration of contracts under the VEIA. These provisions explain solicitation, selection, and award procedures, including information about how the Director will publicly solicit proposals for a commercial services contract and how the Director will evaluate proposals. Other provisions govern the terms of the contracts themselves, including provisions related to termination, rate approval, assignments of contracts, and general funds management. The proposed rule also addresses access to information and records held by operators related to their performance under commercial services contracts and by contractors related to their performance under professional services contracts.

The NPS is interested in receiving comments from the public on both the proposed rule and the use of the VEIA. In particular, the NPS is interested in responses to the following questions:

(1) Does the bid process outlined in the proposed rule provide sufficient flexibility to allow bidders to suggest new services not anticipated by the NPS?

(2) Does the bid process outlined in the proposed rule provide sufficient opportunity to negotiate contract terms?

(3) What other best practices in hospitality contract models or bid processes might the NPS adopt to achieve the goals of expanding, modernizing and improving visitor services and the condition of commercial facilities?

(4) Where does the NPS need to expand, modernize and improve the condition of commercial facilities and visitor services?

(5) How should the NPS use the VEIA to improve the visitor experience?

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 proposed rule is not significant at the proposed rule stage and will make a separate significance determination at the final rule stage.

Executive Order 13563 reaffirms the principles of Executive Order 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. Executive Order 13563 emphasizes further that agencies must base regulations on the best available science and the rulemaking process must allow for public participation and an open exchange of ideas. The NPS has developed this proposed rule in a manner consistent with these requirements.

This proposed rule would not have a significant economic effect on a substantial number of small entities under the RFA (5 U.S.C. 601 et seq. ). This certification is based on the cost-benefit and initial regulatory flexibility analyses found in the report entitled “Visitor Experience Improvements Authority (VEIA) Proposed Rule Regulatory Assessment (RA) and Initial Regulatory Flexibility Analysis (IRFA)” which can be viewed in the docket for this rulemaking.

This proposed rule is not a major rule under 5 U.S.C. 804(2), the CRA. This proposed rule:

(a) Would not have an annual effect on the economy of $100 million or more;

(b) Would not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and

(c) Would 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.

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 proposed rule does not have a significant or unique effect on State, local or tribal governments or the private sector. This proposed rule clarifies NPS procedures and does not impose requirements on other agencies or governments. A statement containing the information required by the UMRA (2 U.S.C. 1531 et seq. ) is not required.

This proposed rule does not effect a taking of private property or otherwise have takings implications under Executive Order 12630. A takings implication assessment is not required.

Under the criteria in section 1 of Executive Order 13132, the proposed rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. A federalism summary impact statement is not required.

This proposed rule complies with the requirements of Executive Order 12988. This proposed rule:

(a) Meets the criteria of section 3(a) requiring agencies to review all regulations to eliminate errors and ambiguity and write them to minimize litigation; and

(b) Meets the criteria of section 3(b)(2) requiring agencies to write all regulations in clear language and contain clear legal standards.

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. The NPS has evaluated this proposed rule under the Department's consultation policy and under the criteria in Executive Order 13175, and has determined that it has no substantial direct effects on federally recognized Indian tribes and that consultation under the Department's tribal consultation policy is not required.

This proposed rule contains new information collections. All information collections require approval under the Paperwork Reduction Act (PRA) of 1995. The NPS 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. OMB must approve the new reporting and recordkeeping requirements identified below:

(1) Solicitation of Proposals—The VEIA requires that the NPS solicit proposals for commercial services contracts through a competitive process. The NPS may also award and administer related professional services contracts. The solicitation process may include one or more phases such as a request for qualifications followed by or in concert with a request for more detailed information through a request for proposals. The process could also include interviews with respondents and a negotiation phase. The NPS will use the information collected to evaluate and select the best operator to provide the contracted services. Information submitted in response to a solicitation may include, as applicable to the specific project, types of information similar to the following:

• Information concerning the respondent's ability to comply with the commercial service contract terms and conditions;

• Information that demonstrates that the respondent is a qualified entity;

• Information that demonstrates the respondent's experience and prior performance in operating similar facilities and providing similar services;

• Information concerning the respondent's financial capability;

• Information concerning the respondent's proposed approach and methodology to deliver the services specified; and

• Information that the respondent provides in response to other factors identified in the request for proposals.

(2) Reporting Requirements

(A) Commercial Services Operators—In order to monitor their performance and make appropriate NPS management decisions, the NPS will require operators providing commercial services under a VEIA contract to provide information to the NPS through reports and plans such as the following:

• Annual Plan that includes information summarizing prior year operating activities, capital projects and facility condition assessment, and financial performance, and outlining projected annual operating and capital budgets, projected annual operating plans, capital project plans and designs, and staffing and marketing plans;

• Monthly Performance Reports that include monthly financial performance statements, capital project and operating performance information; and

• Ad hoc Reports such as environmental or safety incidents reports.

The above types of plans and reports to owners ( e.g., NPS) are standard for those providing commercial services in the hospitality industry in the private and public sector. The NPS requires financial data be submitted in accordance with Generally Accepted Accounting Principles (GAAP); however, no standardized form or format is defined for any plans or reports at this time. The NPS expects this to evolve over the remaining years of the VEIA and may have forms and formats at a later time. The NPS will obtain OMB approval for any changes in reporting and/or recordkeeping requirements as they are developed.

(B) Professional Services Providers—Professional services providers will be required to provide information to the NPS through deliverables, reports and plans such as the following:

• Operators Annual Plan Review Report analyzing operator prior year performance and operational, capital project and financial plans for the upcoming year;

• Monthly Asset Manager Reports analyzing operator operational, capital project and financial performance; and

• Commercial Services Contract Solicitation Support Deliverables such as financial and business opportunity analysis reports, condition assessment reports, and draft Request for Qualifications/Request for Proposals documents for commercial services contracts.

There is no standard format or form associated with these information requests.

(3) Recordkeeping Requirements—Operators under commercial services contracts and contractors under professional services contracts must keep any records that the Director of the NPS may require for the term of the contract and for five calendar years after the termination or expiration of the contract to enable the Director to determine that all terms of the contract are or were faithfully performed. The Director, for the purpose of audit and examination, must have access to and the right to examine all pertinent records, books, documents, and papers of the operator, contractor, subcontractor, and any parent or affiliate of the operator or contractor (but with respect to parents and affiliates, only to the extent necessary to confirm the validity and performance of any representations or commitments made to the Director by a parent or affiliate of the operator or contractor).

Title of Collection: Administration of Visitor Experience Improvements Authority, 54 U.S.C. 101936.

OMB Control Number: 1024-New.

Form Number: None.

Type of Review: New.

Respondents/Affected Public: Business entities desiring to enter VEIA-authorized contracts with the National Park Service.

Total Estimated Number of Annual Respondents: 46 (Commercial Services Operators: 18; Professional Services Providers: 28).

Total Estimated Number of Annual Responses: 100 (Commercial Services Operators: 50; Professional Services Providers: 50).

Estimated Completion Time per Response: Average time (Varies from 24 hours to 800 hours, depending on respondent and/or activity).

Total Estimated Number of Annual Burden Hours: 7,016 hours.

Respondent's Obligation: Required to Obtain or Retain a Benefit.

Frequency of Collection: On occasion.

Total Estimated Annual Nonhour Burden Cost: $112,900 (for costs associated with solicitations, start-up costs, and recordkeeping requirements).

As part of our continuing effort to reduce paperwork and respondent burdens, we invite the public and other Federal agencies to comment on any aspect of this information collection, including:

(1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility;

(2) The accuracy of our estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;

(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and

(4) How the agency might minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of response.

Written comments and suggestions on the information collection requirements should be submitted by the date specified above in DATES to https://www.reginfo.gov/public/do/PRAMain. Find this particular information collection by selecting “Currently under Review—Open for Public Comments” or by using the search function. Please provide a copy of your comments to the NPS Information Collection Clearance Officer (ADIR-ICCO), 12201 Sunrise Valley Drive, Reston, VA 20191 (mail); or phadrea_ponds@nps.gov (email). Please include “1024-AE47” in the subject line of your comments.

This proposed rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under NEPA is not required. The NPS has determined the proposed rule is categorically excluded under 43 CFR 46.210(i) because it is administrative, financial, legal, and technical in nature. In addition, the environmental effects of this proposed rule are too speculative to lend themselves to meaningful analysis. NPS decisions to enter into contracts under the VEIA will be subject to compliance with NEPA at the time the contracts are executed. The NPS has determined the proposed rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.

This proposed rule is not a significant energy action under the definition in Executive Order 13211; this proposed rule is not likely to have a significant adverse effect on the supply, distribution, or use of energy, and this rule has not otherwise been designated by the Administrator of OIRA as a significant energy action. A Statement of Energy Effects is not required.

The NPS is required by Executive Orders 12866 (section 1(b)(12)) and 12988 (section 3(b)(1)(B)) and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule the NPS publishes must:

(a) Have logical organization;

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

(c) Use clear language rather than jargon;

(d) Have short sections and sentences; and

(e) Use lists and tables wherever possible.

If you believe that the NPS has not met these requirements, send comments by one of the methods listed in the ADDRESSES section. To better help the NPS revise the proposed rule, your comments should specifically identify where the NPS could improve. For example, you should tell the NPS the numbers of the sections or paragraphs you find unclear, which sections or sentences are too long, the sections where you would find lists or tables useful, etc.

In consideration of the foregoing, the National Park Service proposes to add part 52 to title 36 of the Code of Federal Regulations to read as follows:

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

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

Under CAA section 110(k)(1), the EPA must determine whether a SIP submittal meets the minimum completeness criteria established in 40 CFR part 51, appendix V for an official SIP submittal on which the EPA is obligated to take action. If the EPA does not make an affirmative determination of completeness or incompleteness within six months of receipt of a SIP submittal, the submittal is deemed to be complete by operation of law. The submitted rules listed in Table 1 were deemed complete by operation of law on the following dates: October 24, 2019 (SCAQMD Rule 1118.1), and September 12, 2021 (SJVUAPCD Rule 4311).

There are no previous versions of SCAQMD Rule 1118.1 in the SIP. SCAQMD locally adopted this rule on January 4, 2019, and CARB submitted it to us on April 24, 2019.

We approved an earlier version of SJVUAPCD Rule 4311 into the SIP on November 3, 2011 (76 FR 68106). The SJVUAPCD adopted revisions to the SIP-approved version on December 17, 2020, and CARB submitted them to us on March 12, 2021. If we take final action to approve the December 17, 2020 version of Rule 4311, this version will replace the previously approved version of this rule in the SIP.

Emissions of NO X and VOCs contribute to the production of ground-level ozone, which harms human health and the environment. Section 110(a) of the CAA requires states to submit regulations that control NO X emissions. The submitted rules set further requirements to control NO X and other emissions from flares. A description of these rules follows, and a more complete list of revisions and rule discussion can be found in the technical support documents (TSDs) and submitted district staff reports and rules for this rulemaking:

• SCAQMD Rule 1118.1 was adopted to fulfill reasonably available control technology (RACT) requirements for non-refinery flares and to facilitate the transition of the NO X RECLAIM (Regional Clean Air Incentives Market) program to a command-and-control regulatory structure. Rule 1118.1 is designed to reduce NO X and VOC emissions from non-refinery flares. The proposed rule establishes capacity thresholds for existing flares and emission limits for NO X , VOC, and carbon monoxide (CO) for new, replaced, or relocated non-refinery flares.

• SJVUAPCD amended Rule 4311 to fulfill SJVUAPCD's control measure commitments in their 2018 PM 2.5 Plan and their 2016 Ozone Plan, for reducing flare emissions. SJVUAPCD amended Rule 4311 to require owners and operators of flares to install Ultra Low NO X (ULN) flaring technologies and to encourage alternative uses of waste gas. Some of the revisions include establishing annual throughput thresholds that flares must not exceed, and adding a compliance schedule for meeting annual throughput limits.

Rules in the SIP must be enforceable (see CAA section 110(a)(2)), must not interfere with applicable requirements concerning attainment and reasonable further progress or other CAA requirements (see CAA section 110(l)), and must not modify certain SIP control requirements in nonattainment areas without ensuring equivalent or greater emissions reductions (see CAA section 193).

Generally, SIP rules must require RACT for each major source of NO X in ozone nonattainment areas classified as moderate or above (see CAA sections 182(b)(2) and 182(f)). The SCAQMD and SJVUAPCD regulate ozone nonattainment areas classified as Extreme for the 2008 8-hour ozone National Ambient Air Quality Standards (NAAQS), and the 2015 8-hour ozone NAAQS (40 CFR 81.305). Therefore, these rules must implement RACT.

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

1. “State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” 57 FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992).

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

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

These rules meet CAA requirements and are consistent with relevant guidance regarding enforceability, RACT, and SIP revisions. The TSDs have more information on our evaluation.

The TSDs include recommendations for the next time the local agencies modify their rules.

As authorized in section 110(k)(3) of the Act, the EPA proposes to fully approve the submitted rules because they fulfill all relevant requirements. We will accept comments from the public on this proposal until February 24, 2022. If we take final action to approve the submitted rules, our final action will incorporate these rules into the federally enforceable SIP.

In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the SCAQMD rule and the SJVUAPCD rule described in Table 1 of this preamble. The EPA has made, and will continue to make, these materials available through https://www.regulations.gov and at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 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 Clean Air Act; and

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

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

FIFRA section 25(a)(2)(A) requires the EPA Administrator to provide the Secretary of USDA with a copy of any draft proposed rule at least 60 days before signing it in proposed form for publication in the Federal Register . The draft proposed rule is not available to the public until after it has been signed by EPA. If the Secretary of USDA comments in writing regarding the draft proposed rule within 30 days after receiving it, then the EPA Administrator shall include the comments of the Secretary of USDA and the EPA Administrator's response to those comments with the proposed rule that publishes in the Federal Register . If the Secretary of USDA does not comment in writing within 30 days after receiving the draft proposed rule, then the EPA Administrator may sign the proposed rule for publication in the Federal Register any time after the 30-day period.

No. This document is merely a notification of submission to the Secretary of USDA. As such, none of the regulatory assessment requirements apply to this document.

For additional information, see the direct final rule published in the “Rules and Regulations” section of this issue of the Federal Register .

Executive Summary

Why we need to publish a rule. Under the Act, if we determine that a species warrants listing, we are required to promptly publish a proposal in the Federal Register , unless doing so is precluded by higher-priority actions and expeditious progress is being made to add and remove qualified species to or from the List of Endangered and Threatened Wildlife and Plants. The Service will make a determination on our proposal within 1 year. If there is substantial disagreement regarding the sufficiency and accuracy of the available data relevant to the proposed listing, we may extend the final determination for not more than six months. To the maximum extent prudent and determinable, we must designate critical habitat for any species that we determine to be an endangered or threatened species under the Act. Listing a species as an endangered or threatened species and designation of critical habitat can be completed only by issuing a rule.

What this document does. We propose to list the Sacramento Mountains checkerspot butterfly as an endangered species under the Act. As explained later in this document, we conclude that the designation of critical habitat for the Sacramento Mountains checkerspot butterfly is not determinable at this time.

The basis for our action. Under the Act, we may determine that a species is an endangered or threatened species because of any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We have determined that the Sacramento Mountains checkerspot butterfly is primarily threatened by overgrazing by large ungulates, recreation, climate change, nonnative plants, and an altered wildfire regime.

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

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

We particularly seek comments concerning:

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

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

(b) Genetics and taxonomy;

(c) Historical and current range, including distribution patterns;

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

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

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

(3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species and existing regulations that may be addressing those threats.

(4) Additional information concerning the historical and current status, range, distribution, and population size of this species, including the locations of any additional populations of this species.

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

Please note that submissions merely stating support for, or opposition to, the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act (16 U.S.C. 1531 et seq. ) directs that determinations as to whether any species is an endangered or a threatened species must be made “solely on the basis of the best scientific and commercial data available.”

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

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

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

Because we will consider all comments and information we receive during the comment period, our final determination may differ from this proposal. Based on the new information we receive (and any comments on that new information), we may conclude that the species is threatened instead of endangered, or we may conclude that the species does not warrant listing as either an endangered species or a threatened species.

Section 4(b)(5) of the Act provides for a public hearing on this proposal, if requested. Requests must be received by the date specified in DATES . Such requests must be sent to the address shown in FOR FURTHER INFORMATION CONTACT . We will schedule a public hearing on this proposal, if requested, and announce the date, time, and place of the hearing, as well as how to obtain reasonable accommodations, in the Federal Register and local newspapers at least 15 days before the hearing. For the immediate future, we will provide these public hearings using webinars that will be announced on the Service's website, in addition to the Federal Register . The use of these virtual public hearings is consistent with our regulations at 50 CFR 424.16(c)(3).

On January 28, 1999, we received a petition from the Southwest Center for Biological Diversity (now Center for Biological Diversity (CBD)) requesting emergency listing of the Sacramento Mountains checkerspot butterfly as endangered with critical habitat. On December 27, 1999, we published a 90-day finding that the petition presented substantial information that listing may be warranted, but that emergency listing was not warranted (64 FR 72300).

On September 6, 2001, we published a 12-month finding and proposed rule to list the Sacramento Mountains checkerspot butterfly as endangered with critical habitat (66 FR 46575). On December 21, 2004, we published a withdrawal of the proposed rule (69 FR 76428), concluding that the threats to the species were not as great as we had perceived when we proposed it for listing.

On July 5, 2007, we received another petition from Forest Guardians (now WildEarth Guardians) and CBD to list the Sacramento Mountains checkerspot butterfly under the Act due to ongoing threats, such as cattle and feral horse grazing, noxious weeds, collection, and climate change, and an imminent plan to spray for insect pests. On December 5, 2008, we published a 90-day finding that the petition presented substantial information that listing may be warranted (73 FR 74123). On September 2, 2009, we published a 12-month finding that listing was not warranted (74 FR 45396).

Please refer to the previous proposed listing and critical habitat rule (66 FR 46575; September 6, 2001), the withdrawal of the proposed listing and critical habitat rule (69 FR 76428; December 21, 2004), and the not-warranted 12-month finding (74 FR 45396; September 2, 2009) for the Sacramento Mountains checkerspot butterfly for a detailed description of previous Federal actions concerning this species.

Since we published the not-warranted rule in 2009, drought from climate change has worsened in New Mexico, worsening habitat conditions for the Sacramento Mountains checkerspot butterfly. Further, during abnormally dry conditions, both feral horses and elk switch to browsing certain plants that are important for the butterfly. Additionally, recreation on the Lincoln National Forest has increased in recent years. Due to heightened concern about the impact of these stressors on the habitat of the Sacramento Mountains checkerspot butterfly, we initiated a discretionary status review of the species in January 2021.

On March 1, 2021, we received a petition from CBD to list the Sacramento Mountains checkerspot butterfly as endangered with critical habitat. At that time, our analysis was already underway, and we included the information provided in the petition in our analysis of the species' status for consideration in this decision.

An assessment team prepared a current condition assessment report for the Sacramento Mountains checkerspot butterfly. The team was composed of Service biologists in consultation with other species experts. The report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past and present factors (both negative and beneficial) affecting the species. In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review of listing actions under the Act, we will seek the expert opinions of at least three appropriate specialists regarding the report. The report will be made available for peer and partner review concurrently with this proposed listing determination. Any information we receive will be incorporated into a final rule.

The Sacramento Mountains checkerspot butterfly (butterfly) is a subspecies of the Anicia checkerspot, or variable checkerspot, in the Nymphalidae (brush-footed butterfly) family that is native to the Sacramento Mountains in south-central New Mexico. The species requires host plants for larvae, nectar sources for adults, and climatic moisture.

The Sacramento Mountains checkerspot butterfly is a small butterfly with a wingspan of approximately 5 centimeters (cm) (2 inches (in)) that has a checkered pattern with dark brown, red, orange, cream, and black spots, punctuated with dark lines (Ferris and Holland 1980, p. 5). The butterfly's antennae have yellow-orange clubs at the tip, and they have orange legs and eyes (Glassberg 2017, p. 207). Sacramento Mountains checkerspot butterfly's larvae are between 0.5 to 1.0 cm (0.2 to 0.4 in) in length. Over time, the larvae change from bare and brown to wooly and black with orange hairs (Service et al. 2005, p. 7).

The Sacramento Mountains checkerspot butterfly inhabits high-altitude meadows in the upper-montane and subalpine zone at elevations between 2,380 and 2,750 meters (m) (7,800 and 9,000 feet (ft)) within the Sacramento Mountains, which are an isolated mountain range in south-central New Mexico (Service 2005 et al., p. 9). The ecosystem at this elevation usually is cool and wet, supporting diverse and robust plant life.

The main larval host plant for the Sacramento Mountains checkerspot butterfly is the New Mexico beardtongue ( Penstemon neomexicanus ) (Ferris and Holland 1980, p. 7), also known as New Mexico penstemon. The preferred adult nectar source is orange sneezeweed ( Helenium ( Hymenoxys ) hoopesii ), a native perennial forb (Service et al. 2005, p. 9). Other plants in the butterfly's habitat include valerian ( Valeriana edulis ), arrowleaf groundsel ( Senecio triangularis ), curlycup gumplant ( Grindelia squarrosa ), figworts ( Scrophularia sp.), penstemon ( Penstemon sp.), skyrocket ( Ipomopsis aggregata ), milkweed ( Asclepias sp.), Arizona rose ( Rosa woodsii ), and Wheeler's wallflower ( Erysimum capitatum ) (Forest Service 1999, entire).

In the Sacramento Mountains, small daily rainstorms (monsoons) are common during the summer months. During this cycle, adult butterflies are active during mid-morning when the sunlight has warmed the air but before rainstorms move into the area in the afternoon (Forest Service 1999, p. 3). On chilly, cloudy days when temperatures are around 60 degrees Fahrenheit (°F) (16 degrees Celsius (°C)), butterflies are inactive. Sacramento Mountains checkerspot butterflies are most active during sunny days when temperatures remain near 70 °F (21 °C) (Forest Service 1999, p. 4). The optimal temperature range is between 73 and 80 °F (23 and 27 °C) (Ryan 2021a, pers. comm.). When temperatures regularly exceed 80 °F (27 °C) during the summer months, few adult butterflies were detected (Hughes 2021a, pers. comm.).

The Sacramento Mountains checkerspot butterfly is univoltine, meaning there is one generation per year. The butterfly's life cycle is synchronized with the development of host and nectar plants. The flight season lasts from mid-June to the end of August. The exact timing of adult flight can vary dramatically from one year to the next (Service et al. 2005, pp. 10-11). The adult butterflies stagger their emergence from pupation, with numbers peaking around the second week of the flight season. Females deposit a cluster of eggs on the underside of New Mexico beardtongue leaves. A female can lay two to three sets of eggs during her short lifetime (Service et al. 2005, pp. 10-11). The eggs hatch within 2 weeks, and larvae collectively create a protective silken shelter, known as a tent, over the host plant, feeding upon it until winter or the plant is defoliated (Pratt and Emmel 2010, p. 108). Caterpillars at this stage are relatively immobile and rely on host plant health and abundance to complete the first stages of their life cycle (Arriens et al. 2020, p. 2). Caterpillars can leave the plant and search for additional resources, but it is unknown how far they can travel in search of food (Pratt and Emmel 2010, p. 108; Service et al. 2005, p. 11).

After the third or fourth growth cycle, the larvae enter a period of arrested metabolism known as diapause. Diapause begins between late September and early October, depending on environmental conditions. During diapause, larvae probably remain in leaf or grass litter near the base of shrubs, under the bark of conifers, or in the loose soils associated with pocket gopher ( Thomomys bottae ) mounds (see 66 FR 46575; September 6, 2001). The larvae remain in diapause until warm spring temperatures, moisture events, host plant growth, or some combination of these events prompts individuals to come out of their suspended state (Service et al. 2005, p. 11). It might be possible for caterpillars to re-enter or remain in diapause for more than one year if environmental conditions are not conducive for growth (Service et al. 2005, p. 11).

Between March and April, post-diapause larvae emerge and begin to feed again. In the spring, larvae are more mobile than they were in the fall, moving on average 2.6 meters from their natal tents (Pittenger and Yori 2003, p. 3). They have three or four more growth stages before pupating (forming a chrysalis). Precisely what triggers caterpillars to initiate pupation is not well understood, but likely relies on various environmental cues (Service et al. 2005, p. 11). As many as 98 percent of individuals do not survive to the adult stage (Ryan 2021b, pers. comm.).

Because the Sacramento Mountains checkerspot butterfly has a life-history pattern similar to other butterflies in the Euphydryas genus that exist as metapopulations, it is likely that this butterfly also has a metapopulation structure (Ehrlich et al. 1975, p. 221; Murphy and Weiss 1988, pp. 192-194). A metapopulation is a group of local populations within an area, where typically migration from one local population to other areas containing suitable habitat is possible, but not routine (Murphy and Weiss 1988, p. 192). Movement between areas containing suitable habitat ( i.e., dispersal) is restricted due to inhospitable conditions around and between areas of suitable habitat (Service et al. 2005, p. 15). Metapopulation-level processes appear to be critical to the long-term persistence of the Sacramento Mountains checkerspot butterfly.

Butterflies in the genus Euphydryas are typically restricted to specific habitats (Ehrlich et al. 1975, p. 225; Cullenward et al. 1979, p. 1; Murphy and Weiss 1988, p. 197). The extent of the historical range of the Sacramento Mountains checkerspot butterfly is unknown due to limited information collected on this subspecies before its description in 1980 (Ferris and Holland 1980, p. 7). Although the Sacramento Mountains checkerspot's historical range is unknown, the species is thought to have once occupied a more extensive (but still limited) area based upon the location of its meadow habitat.

Surveys completed between 1996 and 1997 found that the butterfly occupies roughly 85 square kilometers (33 square miles) within the vicinity of the village of Cloudcroft (see 66 FR 46575; September 6, 2001). However, recent surveys indicate that the butterfly's suitable habitat is likely less than 2 square miles within the range (Forest Service 2020b, entire). The U.S. Forest Service (Forest Service) has been conducting presence-or-absence surveys since 1998 to estimate the range of the butterfly (Forest Service 1999, p. 2). Based on the best available information, the butterfly continues to exist within the same general localities (Pittenger and Yori 2003, p. 15; McIntyre 2005, pp. 1-2; McIntyre 2008, p. 1; Ryan 2007, pp. 11-12).

The range of the Sacramento Mountains checkerspot butterfly has always been discontinuous and fragmented. Spruce-fir forests punctuate suitable butterfly habitat comprised of mountain meadows, creating intrinsic barriers to butterfly dispersal and effectively isolating populations from one another (Pittenger and Yori 2003, p. 1). It is likely that the meadow habitat upon which the Sacramento Mountains checkerspot butterfly relies was influenced by fire (Brown et al. 2001, pp. 116-117). The historical fire regime would have allowed for more temporary connectivity between populations as it opened up the canopy of trees that separate meadows. However, fire suppression on public and private lands to protect commercial and private development in suitable habitat has resulted in the encroachment of conifers.

The Mescalero Apache Nation shares the northern border with the Sacramento Ranger District on the Lincoln National Forest. This border is the northern limit of butterfly surveys. We do not know if the range of the butterfly extends into the lands of the Mescalero Apache Nation because, to our knowledge, no surveys have been conducted on their lands (see 66 FR 46575; September 6, 2001). Although we do not have information on habitat on Mescalero Apache Nation lands, it is unlikely that there is a significant amount of suitable habitat present there because it is generally lower elevation than the Sacramento Mountains checkerspot butterfly requires ( i.e., between 2,380 and 2,750 m (7,800 and 9,000 ft)) and is not proximal ( i.e., provides connectivity) to known butterfly localities (see 66 FR 46575; September 6, 2001).

Since 1998, populations have been known from 10 meadow units on Forest Service land (Forest Service, 1999, p. 2). The meadows cover the occupied areas within the species' range and give the most accurate representation of species and habitat conditions available. These meadow units include Bailey Canyon, Pines Meadow Campground, Horse Pasture Meadow, Silver Springs Canyon, Cox Canyon, Sleepygrass Canyon, Spud Patch Canyon, Deerhead Canyon, Pumphouse Canyon, and Yardplot Meadow. The species has been extirpated from several of these meadows recently. The Yardplot Meadow was sold and developed, while suitable habitat in Horse Pasture Meadow was eliminated by logging (Forest Service 2017, p. 3). No adults or caterpillars have been detected within Pumphouse Canyon since 2003, and the species has likely been extirpated at that site (Forest Service 2017, p. 3). In 2020, all 10 meadows were surveyed for butterflies and larvae, and a total of eight butterflies were detected in only Bailey Canyon and Pines Meadow Campground combined (Forest Service 2020b, p. 3), and no larval tents were found at any site (Forest Service 2020b, pp. 1-3; Hughes 2020, pers. comm.).

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species is an endangered species or a threatened species. The Act defines an “endangered species” as a species that is in danger of extinction throughout all or a significant portion of its range, and a “threatened species” as a species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act requires that we determine whether any species is an endangered species or a threatened species because of any of the following factors:

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

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

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

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

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

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

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

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

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

The current condition assessment report documents the results of our comprehensive biological review of the best scientific and commercial data regarding the status of the species, including an assessment of the potential threats to the species. The current condition assessment report does not represent a decision by the Service on whether the species should be proposed for listing as an endangered or threatened species under the Act. However, it does provide the scientific basis that informs our regulatory decisions, which involve the further application of standards within the Act and its implementing regulations and policies. The following is a summary of the key results and conclusions from the current condition assessment report; the full report can be found at http://www.regulations.gov under Docket No. FWS-R2-ES-2021-0069 and at https://www.fws.gov/southwest/es/NewMexico/.

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

Our analysis can be categorized into several sequential stages. During the first stage, we evaluated the individual species' life-history needs. The next stage involved an assessment of the historical and current conditions of the species' demographics and habitat characteristics, including an explanation of how the species arrived at its current condition. Throughout these stages, we used the best available information to characterize viability as the ability of a species to sustain populations in the wild over time. We use this information to inform our regulatory decision.

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

For the Sacramento Mountains checkerspot butterfly to maintain viability, its populations or some portion thereof must have sufficient resiliency, redundancy, and representation. Several factors influence the resiliency of Sacramento Mountains checkerspot butterfly populations, including larval and adult abundance and density, in addition to elements of the species' habitat that determine whether Sacramento Mountains checkerspot butterfly populations can survive and reproduce. These resiliency factors and habitat elements are discussed in detail in the current condition assessment report and are summarized here.

To successfully reproduce and increase their fecundity and abundance, butterflies need access to mates. The Sacramento Mountains checkerspot butterfly is not a long-distance flier and probably relies on local abundance and population density to successfully mate and reproduce (Pittenger and Yori 2003, p. 39). Higher densities and more abundant individuals result in more successful mating attempts and ensure species viability. Metapopulation dynamics are also maintained by abundance and density within meadows (Pittenger and Yori 2003, pp. 39-40).

The most crucial habitat factor for the Sacramento Mountains checkerspot butterfly is the New Mexico beardtongue's presence and abundance (McIntyre 2021a, pers. comm.). The larvae rely nearly entirely upon the New Mexico beardtongue during pre- and post-diapause. Because of the Sacramento Mountains checkerspot butterfly's dependency on New Mexico beardtongue, it is vulnerable to any type of habitat degradation, which reduces the host plant's health and abundance (Service et al. 2005, p. 9).

New Mexico beardtongue is a member of the Plantaginaceae, or figwort, family (Oxelman et al. 2005, p. 425). These perennial plants prefer wooded slopes or open glades in ponderosa pine and spruce/fir forests at elevations between 1,830 and 2,750 m (6,000 and 9,000 ft) (New Mexico Rare Plant Technical Council 1999, entire). New Mexico beardtongue is native to the Sacramento Mountains within Lincoln and Otero Counties (Sivinski and Knight 1996, p. 289). The plant is perennial, has purple or violet-blue flowers, and grows to be half a meter tall (1.9 ft). New Mexico beardtongue occurs in areas with loose soils or where there has been recent soil disturbance, such as eroded banks and pocket gopher burrows (Pittenger and Yori 2003, p. ii). Some plant species within the figwort family, including the New Mexico beardtongue, contain iridoid glycosides, a family of organic compounds that are bitter and an emetic (vomit-inducing) for most birds and mammal species. The Sacramento Mountains checkerspot butterfly, like other subspecies of Euphydryas anicia, sequester the iridoid glycosides as caterpillars. It is believed that these compounds make the larvae and adult butterflies unpalatable to predators (Gardner and Stermitz 1987, pp. 2152-2167).

Access to nectar sources is needed for adult Sacramento Mountains checkerspot butterflies to properly carry out their life cycle. The primary adult nectar source is orange sneezeweed (Service et al. 2005, p. 9). To contribute to the species' viability, orange sneezeweed must bloom at a time that corresponds with the emergence of adult Sacramento Mountain checkerspot butterflies. Although orange sneezeweed flowers are most frequently used, the butterfly has been observed collecting nectar on various other native nectar sources (Service et al. 2005, pp. 9-10). If orange sneezeweed is not blooming during the adult flight period ( i.e., experiencing phenological mismatch), survival and the butterfly's fecundity could decrease.

Before human intervention, the habitat of the Sacramento Mountains checkerspot butterfly was dynamic, with meadows forming and reconnecting due to natural wildfire regimes (Service et al. 2005, p. 21). These patterns would have facilitated natural dispersal and recolonization of meadow habitats following disturbance events, especially when there was high butterfly population density in adjacent meadows (Service et al. 2005, p. 21). Currently, spruce-fir forests punctuate suitable butterfly habitat, comprised of mountain meadows, creating intrinsic barriers to butterfly dispersal and effectively isolating populations from one another (Pittenger and Yori 2003, p. 1). Preliminary genetic research suggested there is extremely low gene flow across the species' range or between meadows surveyed (Ryan 2021a, pers. comm.). If new sites are to become colonized or recolonized by the butterfly, meadow areas will need to be connected enough to allow dispersal from occupied areas. Therefore, habitat connectivity is needed for genetically healthy populations across the species' range (Service 2021, p. 8).

We reviewed the potential risk factors ( i.e., threats, stressors) that could be currently affecting the Sacramento Mountains checkerspot butterfly. In this proposed rule, we will discuss only those factors in detail that could meaningfully impact the status of the species. Those risk factors that are unlikely to have significant effects on Sacramento Mountains checkerspot butterfly populations, such as human collection, disease, parasites, predation, insecticides, habitat loss, and livestock grazing, are not discussed here but are evaluated in the current condition assessment report. For example, livestock grazing has the potential to impact the Sacramento Mountains checkerspot butterfly through various mechanisms (Service et al. 2005, pp. 29-30; Forest Service 2008, p. 70; McIntyre 2010, pp. 76-77, 94-104; Forest Service 2019, p. 21). However, because there are no active grazing allotments in any areas occupied by the butterfly, livestock grazing is not a primary risk factor for the status of the Sacramento Mountains checkerspot butterfly. The primary risk factors ( i.e., threats) affecting the status of the Sacramento Mountains checkerspot butterfly are overgrazing by large ungulates (Factor A), recreation (Factor A), climate change (Factor E), nonnative plants (Factor A), and an altered wildfire regime (Factor A).

Historically, Merriam's elk ( Cervus canadensis merriami ), an extinct subspecies of elk, grazed meadows within the Sacramento Mountains. Under normal conditions, these species likely coexisted without impacting the existence of the butterfly. Rocky Mountain elk ( Cervus canadensis nelsoni ) have been introduced to the Sacramento Mountains, filling the previous ecological niche held by Merriam's elk (New Mexico Department of Game and Fish 2009, unpaginated). At natural population levels and normal environmental conditions, elk do not pose a significant threat to the Sacramento Mountains checkerspot butterfly or its habitat. In fact, some studies have shown a positive correlation between elk grazing and caterpillar abundance (McIntyre 2010, pp. 66-69). Should elk herds expand beyond natural levels or occur during times of resource scarcity, browse pressure from elk can pose a significant threat to the butterfly's habitat and viability (Service 2021, p. 13).

Feral horses were inadvertently released onto the Lincoln National Forest around 2012. Horses are not native to the Sacramento Mountains and add significant browse pressure to meadows. Larger than elk, horses consume large quantities of vegetation. Roughly 60,000 horses now live throughout the Sacramento Mountains (Ryan 2021, pers. comm.).

Under typical habitat conditions, the larval host plant, New Mexico beardtongue, is not a main food source for large ungulates. However, during abnormally dry conditions, both horses and elk switch to browsing New Mexico beardtongue as other food plants become scarce (McIntyre 2010, pp. 71-73). New Mexico beardtongue remains as small rosettes less than an inch tall and does not flower when there is significant browse pressure from large herbivores. These small, stunted plants are not large enough to support tent colonies of caterpillars; any larvae will starve after hatching (Forest Service 2020b, p. 11).

Feral horse and overpopulated elk browsing, compounded with drought due to climate change, significantly impact habitat within meadow ecosystems in the range of the Sacramento Mountains checkerspot butterfly. Over the past several years, sustained drought in Otero County has driven large herbivores to graze most meadow areas to the ground (McMahan et al. 2021, pp. 1-2). Currently, vegetation for host plant and nectar sources is scarce in all the meadows throughout the range of the species (Forest Service 2020, p. 11).

In summary, overgrazing by large ungulates results in decline of suitable habitat, limiting larval host plants and adult nectar sources. All meadow units within the range are experiencing impacts from overgrazing.

Over the past 10 years, recreation has increased in the Lincoln National Forest. The previous proposed listing rule (66 FR 46575; September 6, 2001) determined that off-road vehicle use on Forest Service trails posed some threat to meadow units; off-road vehicle use continues to this day and has increased in popularity. Large recreational vehicle (RV) use has also increased, and the Forest Service does not require permits for parking vehicles within the Lincoln National Forest (Service 2021, p. 14). Meadows within the range of the Sacramento Mountains checkerspot are popular with RV users because they are open, flat, and easily accessible by road (Hughes 2021b, pers. comm.). A variety of these impacts ( e.g., soil compaction, barren ground, trampled food plants, multiple trails, vehicle tracking) are evident in areas used by larval and adult life stages of the Sacramento Mountains butterflies; these impacts are reducing the quality or quantity of suitable habitat in and around developed campgrounds or undeveloped campsites in meadows known to support the Sacramento Mountains checkerspot butterfly (Hughes 2021b, pers. comm.).

Recreation can negatively affect the butterfly in several ways. Trampling and crushing can physically kill both individual butterflies and caterpillars. While adults can fly away, these butterflies are slow, especially on cold mornings. Recreational activities can also crush plants, including New Mexico beardtongue and orange sneezeweed. During times of drought, these plants are especially vulnerable and unlikely to survive repeated damage (Service 2021, p. 14). Additionally, RVs compact soil where large vehicles are parked. Repeated trampling by humans around the vehicles, caused by normal camping activities, will further compact soils, making it less likely for New Mexico beardtongue to recover or re-establish in former campsites (Hughes 2021b, pers. comm.).

In summary, recreation by humans can directly kill Sacramento Mountains checkerspot butterflies and their larvae. All meadow units within the range are experiencing some level of impact from recreation.

Climate change is impacting natural ecosystems in the southwestern United States (McMahan et al. 2021, p. 1). The Sacramento Mountains are sky islands surrounded by a matrix of desert grassland, which hosts a unique mix of flora and fauna (Brown et al. 2001, p. 116). This ecosystem is sensitive even to small changes in temperature and precipitation. Such changes to the environment can significantly alter air temperature, the amount of precipitation, and the timing of precipitation events (Service et al. 2005, p. 37).

New Mexico has been in a drought for the past several years. Roughly 54 percent of New Mexico is currently experiencing an exceptional drought, including the Sacramento Mountains (McMahan et al. 2021, pp. 1-2). Droughts of this severity push wildlife to alter behavior based on available resources, while vegetation in habitats becomes extremely degraded (McMahan et al. 2021, entire).

Over the past several years, annual precipitation levels have decreased throughout the butterfly's range. Snowfall and corresponding snowpack have remained well below normal levels (Forest Service 2020b, pp. 11-12). Some alpine butterflies need high levels of snowpack levels during diapause to shelter from wind and cold temperatures. The same might be true for the Sacramento Mountains checkerspot butterfly, as the species likely evolved with higher levels of winter snowpack than are common over the past decade (Hughes 2021a, pers. comm.). However, while snowpack might be an important factor, we do not have enough evidence to analyze the effects of low snow years on the butterfly.

Recent shifts in climate due to human-induced climate change can impact how species interact with their environment. The timing of butterfly life-history events during an annual cycle shift due to increases in temperature, changes in humidity, and length of growing season. These shifts can directly be attributed to the effects of climate change. For habitat specialists such as the Sacramento Mountains checkerspot butterfly, shifts in phenological timing can have important consequences for population dynamics and viability (Colorado-Ruiz et al. 2018, pp. 5706-5707). It is likely that climate change has already caused some level of phenotypic mismatch (when life-history traits are no longer advantageous due to changes in the environment) between the butterfly, host plants, and nectar sources. This shift negatively impacts the butterfly because it has adapted to specific timing of resource availability ( i.e., growth of host plants, blooming of nectar sources) in various stages of its life cycle, and climate change has altered the timing, quality, and quantity of those resources.

The Sacramento Mountains checkerspot butterfly needs adequate vegetation growth in host plants and nectar sources during the summer months to survive (Service et al. 2005, p. 15). Vegetation growth within the butterfly's range appears to rely heavily on summer rains. Large rainfall events typically form during the mid-summer months in the Sacramento Mountains, marking the beginning of the monsoon season. These midday showers occur almost daily for several months, stimulating much of the vegetation to grow and proliferate during the midsummer season. Specifically, New Mexico beardtongue growth increases in response to the monsoons. It is thought that moisture might also encourage the butterflies to emerge from diapause as well (Service et al. 2005, pp. 37-38).

Climate change is impacting the timing of monsoon events throughout the Southwest (Service 2021, p. 15). New Mexico beardtongue and other plant species in sub-alpine meadows are adapted to the pulse of moisture from monsoons (Service et al. 2005, pp. 37-38). With a lack of, or altered, monsoon rains, the butterfly is at risk, as the species relies on vegetation growth dependent upon the timing of precipitation.

The 2020 monsoon season was an exceptionally weak one, with far less precipitation falling than in an average summer (McMahan et al. 2021, unpaginated). As a result, New Mexico beardtongue growth was also weak; few plants grew larger than small rosettes on the ground. Even fewer plants survived to produce flowers (Forest Service 2020b, p. 12). Some experts believe that the dry conditions, compounded with increased browse pressure from large ungulates, contributed to the deterioration of habitat throughout the Sacramento Mountains checkerspot butterfly's range (Ryan et al. 2021, pers. comm.).

In summary, climate change impacts viability of the Sacramento Mountains checkerspot butterfly. All meadow units within the range are experiencing impacts from climate change.

Nonnative plants have begun to encroach into meadow areas within the Lincoln National Forest. Other species of butterfly had become scarcer when nonnative plants appeared in suitable butterfly habitats (Hughes 2021b, pers. comm.). During the drought, Kentucky bluegrass ( Poa pratensis ) proliferated within meadow areas. This aggressive, nonnative plant, which is primarily windblown, can outcompete native wildflowers, such as New Mexico beardtongue. As nonnative plants begin to expand their influence, native plants, host and nectar plants for butterflies, such as New Mexico beardtongue and orange sneezeweed, are likely to become scarcer (Kennedy 2020, pers. comm.; 62 FR 2313, January 16, 1997).

In summary, nonnative plants can outcompete the native plants that Sacramento Mountains checkerspot butterflies and their larvae require. All meadow units within the range are experiencing some level of impact from nonnative plants.

Fire is a natural part of the Sacramento Mountains ecosystem and would have historically maintained many of the ecosystem processes within the butterfly's range. The Lincoln National Forest has largely suppressed wildfires over the past 150 years (Service et al. 2005, p. 21). Before human intervention, there would have been gradual ecosystem clines between meadows and forests. Grassland corridors or sparsely forested glades would have connected meadow areas. These habitat types would have allowed for the butterfly to pass through, thereby maintaining metapopulation dynamics. Fire exclusion and suppression have reduced the size of grasslands and meadows by allowing the encroachment of conifers, and these trends are projected to continue (Service et al. 2005, pp. 21-22). No significant wildfires have occurred in butterfly habitat since 1916 (Service et al. 2005, p. 21). Before active fire suppression, fire in the Sacramento Mountains occurred at intervals between three and ten years (Forest Service 1998, p. 63). These frequent, low-intensity, surface fires historically maintained a forest that was more open ( i.e., more non-forested patches of different size; more large, older trees; and fewer dense thickets of evergreen saplings). Such low-intensity fires are now rare events. A large fire can occur within the range of the species; there have been at least nine large, severe wildfires (over 90,000 ac (34,000 ha)) in the Sacramento Mountains during the past fifty years (Forest Service 1998, p. 63). Trees and other woody vegetation have begun encroaching into suitable meadow habitats for the butterfly. Current forest conditions make the chances of a high-severity fire within the range of the butterfly increasingly likely (Service et al. 2005, p. 21).

It is likely that fire exclusion and historical cattle grazing have altered and increased the threat of wildfire in ponderosa pine ( Pinus ponderosa ) and mixed conifer forests in the semi-arid western interior forests, including New Mexico (Forest Service 1998, pp. 3, 63). Further, there has been a general increase in the dominance of woody plants, with a decrease in the herbaceous (non-woody) ground cover used by the butterfly (Service et al. 2005, pp. 32-33). These data indicate that the quality and quantity of the available butterfly habitat is decreasing rangewide. Therefore, we conclude that fire exclusion has substantially affected the species and will likely continue to significantly degrade the quality and quantity of suitable habitat.

In summary, the altered fire regime can impact Sacramento Mountains checkerspot butterflies and their larvae. All meadow units within the range are experiencing impacts from altered fire regime.

Our analysis of the current influences on the needs of the Sacramento Mountains checkerspot butterfly for long-term viability revealed there are several threats that pose the largest risk to viability: Overgrazing by large ungulates, recreation, climate change, nonnative plants, and an altered wildfire regime. These influences reduce the availability of host plants and nectar sources, thereby reducing the quantity and quality of habitat, in addition to reducing ecological and genetic diversity.

The current condition of the Sacramento Mountains checkerspot butterfly considers the risks to those populations that are currently occurring. In the current condition assessment report, for each population, we developed and assigned condition categories for two demographic factors and three habitat factors that are important for viability of the Sacramento Mountains checkerspot butterfly. The condition scores for each habitat factor were then used to determine an overall condition of each population and meadow: High, moderate, low, very low, or extirpated.

Two populations of the Sacramento Mountains checkerspot butterfly remain in two meadows, Bailey Canyon and Pines Meadow Campground. Historically, the populations likely had greater connectivity, but today they are small and isolated due to the altered wildfire regime resulting in a higher concentration of trees that separate meadows. Repopulation of extirpated locations is unlikely without human assistance. If butterflies have been detected at any site once or more during the last 3 years, that population is not considered extirpated. The two remaining populations are in very low condition in terms of demographic factors (adult density and larval density) (see Table 1, below) and low condition in terms of overall meadow condition (see Table 2, below). There have not been any observations of adults or larvae in the past 3 consecutive years in the any of other eight populations, and they are, therefore, considered demographically extirpated. Six of those eight populations have very low overall meadow condition, and two are considered extirpated for overall meadow condition because suitable habitat for the Sacramento Mountains checkerspot butterfly no longer exists there.

Bailey Canyon and Pines Meadow Campground are two adjacent meadows in the northwest part of the Sacramento Mountains checkerspot butterfly's range. During the 2020 survey season, approximately eight butterflies were detected in both meadows combined (Forest Service 2020b, p. 3), and no larval tents were found (Forest Service 2020b, pp. 1-3; Phillip Hughes 2020, pers. comm.). Because of these adult and larval density levels, we categorized resiliency for demographics as very low for both meadows, which were the only two where butterflies were found. In addition, the overall meadow condition for these sites was low because there are few host plants and nectar sources present. Although nectar sources are present, they are not blooming or providing enough resources for the butterfly colonies. Further, these meadows are within 800 meters of each other, which is within the dispersal distance of the butterfly, allowing for potential gene flow between populations.

Overall resiliency of Sacramento Mountains checkerspot butterfly populations is very low for demographic factors and low for habitat factors. This is because butterflies were only found in 2 of the 10 documented meadows, and both had very low recorded adult and larval abundance and density numbers. Additionally, these two meadows have poor habitat conditions (few host plants, nectar sources are abundant but provide insufficient resources, and some connectivity to other meadows), and the other eight meadows have either very low condition or are extirpated in terms of habitat factors.

We define representation for the Sacramento Mountains checkerspot butterfly as having ecological and genetic diversity. As a narrow-range endemic, the entire range of the species is approximately 32 square miles. However, suitable habitat is limited to only about 2 square miles. Today, only 0.2 square miles might be occupied by the butterfly. This range contraction suggests that most of the original representation present within the species has declined. The entirety of the butterfly's range represents one representation area because of the narrow range and limited ecological diversity. The populations are small and isolated in this single representation area with very little to no connectivity between populations. The occupied meadows are among spruce-fir forests, so some barriers limit the dispersal of individuals among the populations. Due to the limited habitat connectivity of populations, individual Sacramento Mountains checkerspot butterflies rarely, if ever, travel between populations. This effectively restricts the transfer of genetic material, thus limiting genetic diversity. There was likely greater habitat connectivity between populations in the past due to a more natural fire regime. Therefore, overall representation was always limited for this species and has declined in recent years.

We define redundancy for the Sacramento Mountains checkerspot butterfly as having populations or metapopulations spread across the range. There are only 2 extant Sacramento Mountains checkerspot butterfly populations located in adjacent meadows out of 10 documented metapopulations within the single representation area. Given the historical distribution of the butterfly, it is likely that Sacramento Mountains checkerspot butterfly populations were more abundant within the Sacramento Mountains. Therefore, redundancy of the butterfly has declined over time. As a consequence of these current conditions, the viability of the Sacramento Mountains checkerspot butterfly primarily depends on maintaining and restoring the remaining isolated populations and reintroducing populations where feasible.

We incorporated the cumulative effects of the operative threats into our analysis when we characterized the current condition of the species. Because our characterization of current condition considers not just the presence of the factors, but to what degree they collectively influence risk to the entire species, our assessment integrates the cumulative effects of the factors and replaces a standalone cumulative effects analysis.

Several habitat management actions can benefit the viability of the Sacramento Mountains checkerspot butterfly. To address the threat of overgrazing from large ungulates, the Lincoln National Forest erected exclosures to protect butterfly habitats from browsing. These efforts are currently focused within Bailey Canyon and Pines Meadow Campground, where adult butterflies were most recently found. Botanists involved with the Sacramento Mountains checkerspot butterfly working group are currently growing plants for habitat restoration. Biologists will soon plant nectar sources, including orange sneezeweed and New Mexico beardtongue, within exclosures to ensure the individual needs of caterpillars and adult butterflies are met.

The Forest Service has proposed that fire management aimed at reducing tree stocking within forested areas surrounding meadows might also help restore suitable habitat and connectivity throughout the range of the butterfly. Maintaining edge habitat and connectivity could greatly improve the butterfly's viability in the long term.

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

After evaluating threats to the species and assessing the cumulative effect of the threats under the Act's section 4(a)(1) factors, we find that the Sacramento Mountains checkerspot butterfly has declined in abundance, density, and number of populations. Currently, there are only two extant populations where the species exists in very low abundances and are isolated from one another. Furthermore, existing available habitat is reduced in quantity and quality relative to historical conditions. Our analysis revealed several threats that caused these declines and pose a meaningful risk to the viability of the species. These threats are primarily related to habitat changes (Factor A) and include overgrazing by large ungulates, recreation, nonnative plants, and altered wildfire regime, in addition to climate change (Factor E).

Over the past two decades, the species has declined, both in abundance and in the area occupied (Forest Service 2020b, p. 2). Because of increased populations of ungulates ( i.e., elk, horses), grazing has increased in the subalpine meadows that support the Sacramento Mountains checkerspot butterfly, reducing the availability of host plants and nectar sources. The reduction in habitat quality and quantity is further exacerbated by the impact of drought associated with climate change. Additionally, the altered wildfire regime has decreased habitat connectivity, and now populations are more isolated from one another with limited to no dispersal among populations.

We considered sites with butterfly detections during the last 3 years to be extant for the purposes of this proposed determination. Because adults or larvae have not been observed in the past 3 consecutive years in 8 of the 10 populations, we consider those 8 populations functionally extirpated. The two remaining populations are extremely small and isolated. The habitat at those sites is currently in very low condition due to a lack of both host plants for larvae and nectar sources for adults.

Historically, the species, with more abundant and larger populations, would have been more resilient to stochastic events. Even if such events extirpated some populations, they could be recolonized over time by dispersal from nearby surviving populations. Because many of the areas of suitable habitat may be small and support small numbers of butterflies, local extirpation of these small populations is probable. A metapopulation's persistence depends on the combined dynamics of these local extirpations and the subsequent recolonization of these areas by dispersal (Murphy and Weiss 1988, pp. 192-194). Habitat loss and the altered wildfire regime have reduced the size of and connectivity between patches of suitable butterfly habitat. The reduction in the extent of meadows and other suitable non-forested areas has likely eliminated connectivity among some localities and may have increased the distance beyond the normal dispersal ability of the Sacramento Mountains checkerspot butterfly, making recolonization of some patches following local extirpation more difficult. In addition, habitat reduction lowers the quality of remaining habitat by reducing the diversity of microclimates and food plants for larvae and adult butterflies (Murphy and Weiss 1988, p. 190).

Preliminary genetic evidence suggests little gene flow between these units (Ryan et al. 2021, pers. comm.). Connectivity, which would promote resiliency and representation, has been lost. Eight populations are functionally extirpated, and the remaining two populations are in very low condition in terms of demographic factors and low condition in terms of habitat factors and are at high risk of loss. The Sacramento Mountains checkerspot butterfly is extremely vulnerable to catastrophic events ( i.e., high-intensity, large wildfires) in suitable butterfly habitats.

In summary, much of the remaining suitable butterfly habitat, and therefore the long-term viability of the species, is at risk due to the direct and indirect effects of overgrazing by large ungulates, recreation, climate change, nonnative plants, and an altered wildfire regime. The remaining populations are fragmented and isolated from one another, unable to recolonize naturally. The populations are largely in a state of chronic degradation due to habitat loss, which is exacerbated by climate change, limiting their resiliency. The limited geographic range of the Sacramento Mountains checkerspot butterfly increases the threat of extinction for this species given the expected continuing loss and degradation of suitable habitat and increased risks of extinction from catastrophic events, such as catastrophic fire. Historically, with a larger range of likely interconnected populations, the species would have been more resilient to stochastic events because even if some populations were extirpated by such events, they could be recolonized over time by dispersal from nearby surviving populations. This connectivity, which would have made for a resilient species overall, has been lost, and with two populations in very low demographic condition and low habitat condition, the remnant populations are at risk of loss. A threatened status for the Sacramento Mountains checkerspot butterfly is not appropriate because the species has already shown significant declines in current resiliency, redundancy, and representation due to the threats mentioned above.

Thus, after assessing the best available information, we determine that the Sacramento Mountains checkerspot butterfly is in danger of extinction throughout all of its range.

Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range. We have determined that the Sacramento Mountains checkerspot butterfly is in danger of extinction throughout all of its range and accordingly did not undertake an analysis of any significant portion of its range. Because the Sacramento Mountains checkerspot butterfly warrants listing as endangered throughout all of its range, our determination is consistent with the decision in Center for Biological Diversity v. Everson, 2020 WL 437289 (D.D.C. Jan. 28, 2020), in which the court vacated the aspect of the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (79 FR 37578; July 1, 2014) that provided the Service does not undertake an analysis of significant portions of a species' range if the species warrants listing as threatened throughout all of its range.

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

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

The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Section 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.

Recovery planning consists of preparing draft and final recovery plans, beginning with the development of a recovery outline and making it available to the public within 30 days of a final listing determination. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan also identifies recovery criteria for review of when a species may be ready for removal from protected status (“delisting”), and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. When completed, the recovery outline, draft recovery plan, and the final recovery plan will be available on our website ( http://www.fws.gov/endangered ), or from our New Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

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

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

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

Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.

Federal agency actions within the species' habitat that may require conference or consultation or both as described in the preceding paragraph include management and any other landscape-altering activities on Federal lands administered by the Forest Service.

The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to endangered wildlife. The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 17.21, make it illegal for any person subject to the jurisdiction of the United States to take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these) endangered wildlife within the United States or on the high seas. In addition, it is unlawful to import; export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any species listed as an endangered species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to employees of the Service, the National Marine Fisheries Service, other Federal land management agencies, and State conservation agencies.

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

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

(1) Possession, delivery, or movement, including interstate transport and import into or export from the United States, involving no commercial activity, of dead specimens of this taxon that were collected prior to the effective date of a final rule adding this taxon to the Federal List of Endangered and Threatened Wildlife;

(2) Activities authorized, funded, or carried out by Federal agencies ( e.g., grazing management, non-forested area management, private or commercial development, recreational trail or forest road development or use, road construction, prescribed burns, timber harvest, pesticide/herbicide application, or pipeline or utility line construction crossing suitable habitat) when such activity is conducted in accordance with a biological opinion from the Service on a proposed Federal action;

(3) Low-impact, infrequent, dispersed human activities on foot or horseback that do not degrade butterfly habitat ( e.g., bird watching, sightseeing, backpacking, hunting, photography, camping, hiking);

(4) Activities on private lands that do not result in the take of the Sacramento Mountains checkerspot butterfly, including those activities involving loss of habitat, such as normal landscape activities around a personal residence, proper grazing management, road construction that avoids butterfly habitat, and pesticide/herbicide application consistent with label restrictions; and

(5) Activities conducted under the terms of a valid permit issued by the Service pursuant to section 10(a)(1)(A) and 10(a)(1)(B) of the Act.

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

(1) Capture ( i.e., netting), survey, or collection of specimens of this taxon without a permit from the Service pursuant to section 10(a)(1)(A) of the Act;

(2) Incidental take of Sacramento Mountains checkerspot butterfly without a permit pursuant to section 10(a)(1)(B) of the Act;

(3) Sale or purchase of specimens of this taxon, except for properly documented antique specimens of this taxon at least 100 years old, as defined by section 10(h)(1) of the Act;

(4) Use of pesticides/herbicides that are in violation of label restrictions resulting in take of Sacramento Mountains checkerspot butterfly;

(5) Unauthorized release of biological control agents that attack any life stage of this taxon;

(6) Removal or destruction of the native food plants being used by Sacramento Mountains checkerspot butterfly, defined as Penstemon neomexicanus, Helenium hoopesii, or Valeriana edulis, within areas that are used by this taxon that results in harm to this butterfly; and

(7) Destruction or alteration of Sacramento Mountains checkerspot butterfly habitat by grading, leveling, plowing, mowing, burning, herbicide or pesticide spraying, intensively grazing, or otherwise disturbing non-forested openings that result in the death of or injury to eggs, larvae, or adult Sacramento Mountains checkerspot butterflies through significant impairment of the species' essential breeding, foraging, sheltering, or other essential life functions.

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

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

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

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

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

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

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

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

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

Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features that occur in specific occupied areas, we focus on the specific features that are essential to support the life-history needs of the species, including, but not limited to, water characteristics, soil type, geological features, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity.

Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. The implementing regulations at 50 CFR 424.12(b)(2) further delineate unoccupied critical habitat by setting out three specific parameters: (1) When designating critical habitat, the Secretary will first evaluate areas occupied by the species; (2) the Secretary will only consider unoccupied areas to be essential where a critical habitat designation limited to geographical areas occupied by the species would be inadequate to ensure the conservation of the species; and (3) for an unoccupied area to be considered essential, the Secretary must determine that there is a reasonable certainty both that the area will contribute to the conservation of the species and that the area contains one or more of those physical or biological features essential to the conservation of the species.

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

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

As the regulatory definition of “habitat” at 50 CFR 424.02 reflects, habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act; (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species; and (3) the prohibitions found in section 9 of the Act. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of the species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of those planning efforts calls for a different outcome.

Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12) require that, to the maximum extent prudent and determinable, the Secretary shall designate critical habitat at the time the species is determined to be an endangered or threatened species. Our regulations (50 CFR 424.12(a)(1)) state that the Secretary may, but is not required to, determine that a designation would not be prudent in the following circumstances:

(i) The species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of such threat to the species;

(ii) The present or threatened destruction, modification, or curtailment of a species' habitat or range is not a threat to the species, or threats to the species' habitat stem solely from causes that cannot be addressed through management actions resulting from consultations under section 7(a)(2) of the Act;

(iii) Areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States;

(iv) No areas meet the definition of critical habitat; or

(v) The Secretary otherwise determines that designation of critical habitat would not be prudent based on the best scientific data available.

As discussed earlier in this document, there is currently no imminent threat of collection or vandalism identified under Factor B for this species, and identification and mapping of critical habitat is not expected to initiate any such threat. In our current condition assessment report and proposed listing determination for the Sacramento Mountains checkerspot butterfly, we determined that the present or threatened destruction, modification, or curtailment of habitat or range is a threat to Sacramento Mountains checkerspot butterfly and that those threats in some way can be addressed by section 7(a)(2) consultation measures. The species occurs wholly in the jurisdiction of the United States, and we are able to identify areas that meet the definition of critical habitat. Therefore, because none of the circumstances enumerated in our regulations at 50 CFR 424.12(a)(1) have been met and because the Secretary has not identified other circumstances for which this designation of critical habitat would be not prudent, we have determined that the designation of critical habitat is prudent for the Sacramento Mountains checkerspot butterfly.

Having determined that designation is prudent, under section 4(a)(3) of the Act we must find whether critical habitat for the Sacramento Mountains checkerspot butterfly is determinable. Our regulations at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following situations exist:

(i) Data sufficient to perform required analyses are lacking, or

(ii) The biological needs of the species are not sufficiently well known to identify any area that meets the definition of “critical habitat.”

When critical habitat is not determinable, the Act allows the Service an additional year to publish a critical habitat designation (16 U.S.C. 1533(b)(6)(C)(ii)).

We reviewed the available information pertaining to the biological needs of the species and habitat characteristics where this species is located. Careful assessments of the economic and environmental impacts that may occur due to a critical habitat designation are not yet complete, and we are in the process of working with the States and other partners in acquiring the complex information needed to perform those assessments. The information sufficient to perform a required analysis of the impacts of the designation is lacking. Therefore, we conclude that the designation of critical habitat for the Sacramento Mountains checkerspot butterfly is not determinable at this time. As noted above, the Act allows the Service an additional year to publish a critical habitat designation that is not determinable at the time of listing (16 U.S.C. 1533(b)(6)(C)(ii)).

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

It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq. ) in connection with regulations adopted pursuant to section 4(a) of the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This position was upheld by the U.S. Court of Appeals for the Ninth Circuit ( Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)). However, when the range of the species includes States within the Tenth Circuit, such as that of the Sacramento Mountains checkerspot butterfly, under the Tenth Circuit ruling in Catron County Board of Commissioners v. U.S. Fish and Wildlife Service, 75 F.3d 1429 (10th Cir. 1996), we undertake a NEPA analysis for critical habitat designation. We will invite the public to comment on the extent to which the upcoming proposed critical habitat designation may have a significant impact on the human environment, or fall within one of the categorical exclusions for actions that have no individual or cumulative effect on the quality of the human environment. We will complete our analysis, in compliance with NEPA, before finalizing the upcoming proposed critical habitat rule.

In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that Tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes. We solicited information from the Mescalero Apache Nation within the range of the Sacramento Mountain checkerspot butterfly to inform the development of the current condition assessment report, but we did not receive a response. We will also provide the Mescalero Apache Nation the opportunity to review a draft of the current condition assessment report and provide input prior to making our final determination on the status of the Sacramento Mountain checkerspot butterfly. We will continue to coordinate with affected Tribes throughout the listing process as appropriate.

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

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

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