This final rule is issued pursuant to the Commodity Promotion, Research, and Information Act of 1996 (1996 Act) (7 U.S.C. 7411-7425).

As part of this rulemaking process, two proposed rulemakings were published in the Federal Register on October 16, 2023. The first rulemaking described the industry's proposed Order (88 FR 71306), and the second rulemaking proposed referendum procedures for the Order (88 FR 71302). Both proposed rulemakings provided a 60-day comment period that ended December 15, 2023. A total of 72 comments were received for the proposed referendum procedures and 174 comments were received for the proposed Order. The comments for the proposed Order are addressed in a separate proposed rulemaking published in this issue of the Federal Register .

Executive Orders (E.O.) 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). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. E.O. 14094 updates and modernizes E.O. 12866 and directs agencies to conduct proactive outreach to engage interested and affected parties through a variety of means, such as through field offices, and alternative platforms and media. This final rule does not meet the definition of a significant regulatory action contained in section 3(f) of E.O. 12866, as amended by E.O. 14094, and, therefore, the Office of Management and Budget (OMB) has waived review of this action.

This final rule has been reviewed under E.O. 12988, Civil Justice Reform. It is not intended to have retroactive effect. Section 524 of the 1996 Act provides that it shall not affect or preempt any other Federal or State law authorizing promotion or research relating to an agricultural commodity.

Under section 519 of the 1996 Act, a person subject to an order may file a written petition with the Secretary of Agriculture (Secretary) stating that the order, any provision of the order, or any obligation imposed in connection with the order, is not established in accordance with the law, and requesting a modification of the order or an exemption from the order. Any petition filed challenging an order, any provision of an order, or any obligation imposed in connection with an order, shall be filed within two years after the effective date of the order, provision, or obligation subject to challenge in the petition. The petitioner will have the opportunity for a hearing on the petition. Thereafter, the Secretary will issue a ruling on the petition. The 1996 Act provides that the district court of the United States for any district in which the petitioner resides or conducts business shall have jurisdiction to review a final ruling on the petition, if the petitioner files a complaint for that purpose not later than 20 days after the date of the entry of Secretary's final ruling.

This final rule has been reviewed under E.O. 13175, Consultation and Coordination with Indian Tribal Governments. E.O. 13175 requires Federal agencies to consult and coordinate with tribes on a government-to-government basis on: (1) policies that have tribal implications, including regulations, legislative comments, or proposed legislation; and (2) other policy statements or actions that 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.

AMS has assessed the impact of this final rule on Indian tribes and determined that this final rule will not have tribal implications that require consultation under E.O. 13175. AMS hosts a quarterly teleconference with tribal leaders where matters of mutual interest regarding the marketing of agricultural products are discussed. Information about the regulation will be shared during an upcoming quarterly call, and tribal leaders will be informed about the proposed Order and the opportunity to vote. AMS will work with the U.S. Department of Agriculture (USDA) Office of Tribal Relations to ensure meaningful consultation is provided as needed with regards to the regulations.

AMS will conduct the referendum. AMS will also conduct extensive outreach to natural grass sod producers to inform them of the referendum voting process and the deadlines for voting. As an up-front referendum, producers will vote on whether they favor issuance of the proposed Order, which was revised based on comments received from the public. The program will be implemented if it is favored by a simple majority of natural grass sod producers voting in the referendum that have been engaged in the production and sale of natural grass sod products in the United States during a representative period determined by the Secretary. The revised proposed Order, including comment analysis, is published separately in this issue of the Federal Register .

Should the referendum result in support for the creation of the program, AMS will publish a final rule for the Order that will include the date when assessments will begin. The referendum procedures in this final rule will also be used for any subsequent referenda conducted under the Order.

The 1996 Act (7 U.S.C. 7411-7425) authorizes USDA to establish agricultural commodity research and promotion orders that may include a combination of promotion, research, industry information, and consumer information activities funded by mandatory assessments. These programs are designed to maintain and expand markets and uses for agricultural commodities as defined under section 513(1) of the 1996 Act (7 U.S.C. 7412(1)). The 1996 Act provides for alternatives within the terms of a variety of provisions. Paragraph (e) of section 518 of the 1996 Act (7 U.S.C. 7417(e)) provides three options for determining industry approval of a new research and promotion program: (1) by a majority of those persons voting; (2) by persons voting for approval who represent a majority of the volume of the agricultural commodity; or (3) by a majority of those persons voting for approval who also represent a majority of the volume of the agricultural commodity. In addition, paragraphs (a) and (b) of section 518 of the 1996 Act (7 U.S.C. 7417(a) and (b)) provide for referenda to ascertain approval of an order to be conducted either prior to its going into effect or within three years after assessments first begin under the order.

AMS received a proposal for a national research and promotion program for natural grass sod from Turfgrass Producers International (TPI). TPI is an industry organization made up of members from across the natural grass seed and sod industry worldwide. If favored, the program would be financed by an assessment on natural grass sod products and administered by a board of industry members selected by the Secretary. Initially, producers would pay one-tenth (1/10th) of one penny ($0.01) per square foot, or the equivalent thereof, of natural grass sod products sold in the United States. No natural grass sod producer would be exempt from paying the assessment unless producing a certified organic product under the National Organic Program.

If favored, the purpose of the program would be to strengthen the position of natural grass in the marketplace, maintain and expand markets for natural grass, and develop new uses for natural grass. TPI proposed that a referendum be held among eligible natural grass sod producers to determine whether they favor implementation of the program prior to the Order going into effect. TPI recommended that the program be implemented if it is favored by a simple majority of the natural grass sod producers voting in the referendum.

This section highlights key provisions of the referendum procedures for the proposed Order. The referendum procedures will be located in the U.S. Code of Federal Regulations at 7 CFR part 1240, subpart B—Referendum Procedures.

Section 1240.81 of the Referendum Procedures defines certain terms that will be used throughout. All terms have the same meaning as set forth in the proposed rulemaking published in the Federal Register on October 16, 2023 (88 FR 71306) in § 1240.20 of subpart A.

Section 1240.83 discusses eligibility and manner of persons voting. An eligible natural grass sod producer; an officer or employee of an eligible natural grass sod producer; or an administrator, executor, or trustee of an eligible natural grass sod producer may cast a ballot. Any individual voting in a referendum shall certify that such individual has the authority to take such action. Upon request of the referendum agent, the individual must submit adequate evidence of such authority.

Section 1240.84 discusses the referendum agent, appointed by the Administrator, who will provide instructions for voting and conduct the referendum. The referendum agent will determine the time period during which ballots may be cast and give reasonable public notice of the referendum, not less than thirty (30) days before the referendum is conducted. No person who claims to be an eligible natural grass sod producer will be refused a ballot. At the end of the voting period the agent will tabulate the results, prepare a report on the referendum, and announce the results to the public.

In accordance with the Regulatory Flexibility Act (5 U.S.C. 601-612), AMS is required to examine the impact of this final rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the Regulatory Flexibility Act is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be disproportionately burdened. At the time this analysis was prepared, the Small Business Administration defined small agricultural producers (NAICS Code 111421) as those having annual receipts of no more than $3,250,000 (13 CFR 121.201). This represents an increase from the size standard ($750,000) that was applied when AMS prepared the initial regulatory flexibility analysis. AMS applied the updated threshold for purposes of analysis in this final rule. The changes do not impact AMS's ultimate determination regarding the impact of the rule on small entities.

According to the 2022 USDA Census of Agriculture data, there are 1,447 farms in the U.S. producing natural grass; of those, approximately 80 percent (or 1,150 farms) are small agricultural producers based on value of sales per farm.

USDA will conduct the referendum to determine if eligible natural grass sod producers favor issuance of the proposed Order. As previously mentioned, paragraph (e) of section 518 of the 1996 Act (7 U.S.C. 7417) provides three options for determining industry approval of a new research and promotion program: (1) by a majority of those persons voting; (2) by persons voting for approval who represent a majority of the volume of the agricultural commodity; or (3) by a majority of those persons voting for approval who also represent a majority of the volume of the agricultural commodity.

This program is an industry-led effort to drive consumer demand for natural grass sod products through the development and implementation of programs, plans, and projects of research, information, and promotion, with funding for such efforts provided by the industry through assessments paid by natural grass sod producers involved in the production of monostands or blends or mixtures of Bentgrass, Bermudagrass, Buffalograss, Centipedegrass, Fine fescue, Kentucky bluegrass, Ryegrass, Seashore Paspalum, Saint Augustinegrass, Tall fescue, Zoysiagrass, Bahiagrass, and other native or adapted grasses harvested and sold as sod, and products containing natural grass with artificial elements that are sold as sod (“natural grass sod products”). In order to ensure that natural grass sod producers decide whether this program should be implemented and, subsequently, whether it should continue or not, this program will be implemented only if it is favored by a majority of natural grass sod producers voting in a referendum. This procedure will also be used for any subsequent referendum under the Order. Eligible natural grass sod producers will have the opportunity to participate in the referendum. Voting in the referendum is optional and this rule outlines the requirements for doing so.

Regarding alternatives, USDA will consider a variety of options to hold the referendum vote including email, mail, electronic voting through a smartphone application or website, sending ballots to one central location by mail ballot or through electronic mail, or by other means selected by the Administrator. AMS has previously conducted referenda through USDA Farm Service Agency County Offices for some larger checkoff programs. For more recently created programs, AMS has utilized an online voting application. AMS will provide easy access to information for potential voters through an email, telephone number, and internet-based resources.

This action will impose an additional reporting burden on natural grass sod producers. Natural grass sod producers will have the opportunity to complete and submit a ballot to USDA indicating whether they favor implementation of the proposed Order or, for subsequent referenda of an approved program, a continuance of the program. The specific burden for the ballot is detailed later in this document in the section titled Paperwork Reduction Act. As with all Federal promotion programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. Finally, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

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.

Regarding outreach efforts, AMS will keep natural grass sod producers informed throughout the program implementation and referendum process to ensure that they are aware of and are able to participate in the program implementation process. AMS will also publicize information regarding the referendum process so that trade associations and related industry media are informed and can amplify the information to eligible producers.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the referendum ballot, which represents the information collection and recordkeeping requirements that is imposed by this rule, has been submitted to OMB for approval.

Title: Natural Grass Sod Promotion, Research, and Information Order; Referendum Procedures.

OMB Number: 0581-0348.

Expiration Date of Approval: 3 years from OMB date of approval.

Type of Request: New information collection for research and promotion programs.

Abstract: The information collection requirements in the request are essential to carry out the intent of the 1996 Act. The information collection concerns a proposal received by USDA for a national research and promotion program for natural grass sod. The program would be financed by an assessment on natural grass sod and would be administered by a board of industry members selected by the Secretary.

A referendum will be held among natural grass sod producers to determine whether they favor issuance of the proposed Order before it goes into effect. The purpose of the program would be to help build the market for natural grass sod.

The information collection requirements in this final rule concern the initial referendum that will be held to determine whether the program is favored by industry and any subsequent referenda conducted under the proposed Order, if it is approved. The ballot will be completed by natural grass sod producers who want to indicate whether they support implementation or continuation of the program.

For the purpose of estimating the cost of reporting and recordkeeping, this final rule uses $56.18 per hour. To arrive at this amount, AMS used the mean hourly earnings of farmers, ranchers, and other agricultural managers from the U.S. Department of Labor, Bureau of Labor Statistics, May 2023 National Occupational Employment and Wages Estimates, 1 that is, $43.35 and added an additional 29.6 percent to account for benefits and compensation. 2 This calculation results in a total hourly wage of $56.18. Costs of benefits and compensation guidance was obtained from the Bureau of Labor Statistics News Release issued September 10, 2024. 3

Information collection requirement that is included in this final rule is:

LP-8 Referendum Ballot and LP-8-1 Envelope (OMB Form No. 0581-0348).

Estimate of Burden: Public recordkeeping burden for this collection of information is estimated to average 0.25 hours per referendum ballot.

Respondents: Natural grass sod producers.

Estimated Number of Respondents: 1,447.

Estimated Number of Responses per Respondent: 1 for initial referenda (Once implemented, subsequent referenda every 7 years thereafter 0.14 per year.)

Estimated Total Annual Burden on Respondents: 362 hours for initial referenda (20 hours for subsequent referendum.)

Total Cost: (362 hours × $56.18) $20,337.16.

The ballot will be added to the other information collections approved under OMB No. 0581-0348.

An estimated 1,447 respondents would provide information to AMS. The estimated cost of providing the information to AMS by respondents is $20,337.16. This total has been estimated by multiplying 362 total hours required for reporting and recordkeeping by $56.18 per hour, representing the average hourly earnings plus benefits by various occupations involved in keeping this information. Data for computation of this hourly rate was obtained from the U.S. Department of Labor Statistics.

A proposed rule describing the referendum procedures was published in the Federal Register on October 16, 2023 (88 FR 71302). A notice to trade was announced by AMS and the proposed rulemaking provided a 60-day comment period ending December 15, 2023. Seventy-two total comments were received. Of the 72 comments, 62 supported the proposed Order and the referendum procedures as written. Three comments were in favor of the referendum procedures but suggested various edits to the proposed rulemaking. Two comments did not support the referendum and provided further recommendations to change the proposed rulemaking. Four comments were not in favor of establishing a sod program. 4 One comment neither supported nor opposed the proposed referendum procedures.

Of the 62 commentors who supported the referendum procedures as written, 36 commentors expressed specific support for the voting provision in § 1240.83(a), which states that “[e]ach eligible natural grass sod producer . . . shall be entitled to cast only one ballot in any referenda.” These commentors agreed that each producer should be allowed one vote regardless of the size of their farm(s) or production volume. These commentors stated that this was the most equitable and fair method for voting.

Only six commentors said they disagreed with the one-producer one-vote procedure in proposed § 1240.83(a). Four of the six commentors would rather apply option 2 of section 518(e) of the 1996 Act (7 U.S.C. 7417(e)), under which industry approval of a new research and promotion program is determined by persons voting for approval who represent a majority of the volume of the agricultural commodity. In their opinion, because large producers would pay more in assessments than smaller producers, acreage or production should be considered. One commentor supported a voting process that would combine options 2 and 3 of the 1996 Act; however, the commentor did not provide any further details. Another commentor stated that the proposed Order should be approved only if it is favored by a majority (50 percent + one vote) of all industry producers in the United States who are eligible to vote, or by those voting who represent a majority of all production acreage in the United States.

Section 518(e) of the 1996 Act (7 U.S.C. 7417(e)) provides three options for determining industry approval of a new research and promotion program: (1) by a majority of those persons voting; (2) by persons voting for approval who represent a majority of the volume of the agricultural commodity; or (3) by a majority of those persons voting for approval who also represent a majority of the volume of the agricultural commodity. Allowing a majority of persons voting in a referendum to determine whether an order should be approved (and allocating one vote to each eligible natural grass sod producer, as provided in proposed § 1240.83(a)), is an acceptable option to count votes and determine industry approval of a new research and promotion program. Considering this is acceptable under the 1996 Act and the majority of the commentors supported the referendum procedures as written, § 1240.83(a) remains unchanged.

Twenty comments encouraged AMS to conduct a referendum using electronic voting as this method could yield higher voter participation, decrease referendum costs, and would be the safest and most efficient method. One comment stated that paper ballots should be optional. Section 1240.83(c) of the referenda procedures allows ballots to be cast “by mail, electronic mail, electronic voting . . . or by any other means set forth by the Department.” Since this section allows for multiple methods of casting ballots, this section will remain as written.

Two commentors were opposed to the proposed referendum procedures, suggested the referendum is being conducted prematurely, and provided several recommendations. 5

First, they recommended “modify[ing]” the “eligible natural grass sod producer” definition to require AMS to identify all natural grass sod producers in the United States and ensure that each producer is informed about the proposed program prior to any referendum. AMS will use several methods to identify as many eligible natural grass sod producers as possible, to include self-identification from producers and industry input.

Second, they stated that AMS should conduct a remedial round of public outreach to re-assess industry support for the program following an approximately 3-year period, during which they claim the proposed Order was not visible or part of regular industry discussions. However, TPI conducted extensive industry engagement regarding the proposed program, including educational outreach to local organizations and individual producers, solicited input on industry's interest in a national checkoff program, and determined that there was substantial interest in moving forward with a national program.

As the commentors noted, industry hosted a webinar to get feedback from natural grass sod producers regarding their interest in developing a national grass sod checkoff program. On May 19, 2020, U.S. sod producers participated in a 2-hour online seminar to learn more about USDA research and promotion programs. After this webinar, attendees were polled to determine their interest in developing a national checkoff program for the natural grass sod industry and 64 percent stated they were very interested, 20 percent stated they were interested, 13 percent stated they were interested in learning more, and only 3 percent stated they were not interested. Since the industry formally submitted its proposed Order on June 18, 2021, USDA has been conducting various required steps to offer a new research and promotion program for industry consideration. This work included the preparation and review of numerous documents, shepherding the proposed program through OMB's regulatory review process, and the drafting and ultimate publication of the proposed program and referendum rules on October 16, 2023.

Additionally, TPI submitted industry letters of support that confirmed the industry's desire to pursue a research and promotion program to fund research and communicate the benefits of natural grass to the public. Further, if in the future the industry determines that the Order is no longer in their best interests, the Order may be amended through the regulatory process or terminated.

Third, an additional recommendation encouraged USDA to establish a clear schedule and procedures for the referendum. This commentor provided a sample schedule that included a 120-day enrollment period to identify all eligible sod producers and a 120-day period to conduct industry education and outreach. AMS, through public notice on its website, post cards, letters, and through its external networks, will make a referendum schedule, instructions, and any other relevant information available for all eligible producers so that trade associations and related industry media can amplify the information.

The fourth and final recommendation encouraged USDA to complete an improved analysis to consider various factors such as the cost to collect, report, and remit assessments, particularly for operations with multiple farms, in multiple States. AMS recognizes that each industry is diverse in various ways such as size, method of production and distribution, business practices, marketing strategies, staff size, and region. The updated regulatory analysis in this rule and subpart A did not factor every unique method of collecting assessments but rather focused on the number of farms reported and square foot of sod sold nationwide according to the 2022 U.S. Census. Furthermore, the commentors did not include any information or data to show that USDA's analysis of the impact of assessments on sod producers under the proposed program is inaccurate. The initial referendum will provide eligible sod producers an opportunity to vote to determine whether they favor establishment of the checkoff program.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends the Class D airspace and the Class E airspace extending upward from 700 feet above the surface at Youngstown/Warren Regional Airport, Youngstown/Warren, OH, to support IFR operations at this airport, and revokes the Class E airspace extending upward from 700 feet above the surface at Lansdowne Airport, Youngstown, OH.

The FAA published an NPRM for Docket No. FAA-2024-2294 in the Federal Register (89 FR 80433; October 3, 2024) proposing to amend the Class D and Class E airspace and revoke Class E airspace at Youngstown/Warren, OH. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

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

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

This amendment to 14 CFR part 71:

Modifies the Class D airspace to within a 4.5-mile (increased from a 4.4-mile) radius of Youngstown/Warren Regional Airport, Youngstown/Warren, OH; updates the name (previously Youngstown-Warren Regional Airport) and the geographic coordinates of the airport to coincide with the FAA's aeronautical database;

And modifies the Class E airspace extending upward from 700 feet above the surface at Youngstown/Warren Regional Airport by removing the Youngstown VORTAC and associated extension from the airspace legal description; removes the Lansdowne Airport, Youngstown, OH, and the associated airspace from the airspace legal description as the instrument procedures have been cancelled and the airspace is no longer required; updates the header of the airspace legal description from “Youngstown-Warren Regional Airport, OH” to “Youngstown/Warren, OH” to coincide with the FAA's aeronautical database and comply with changes to FAA Order JO 7400.2P, Procedures for Handling Airspace Matters; and updates the name (previously Youngstown-Warren Regional Airport) and the geographic coordinates of the airport to coincide with the FAA's aeronautical database.

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

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

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

This rule amends 14 CFR part 97 by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The applicable FAA Forms are 8260-3, 8260-4, 8260-5, 8260-15A, 8260-15B, when required by an entry on 8260-15A, and 8260-15C.

The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the Federal Register expensive and impractical. Further, pilots do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAPS, Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure, and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPs as identified in the amendatory language for part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Air Missions (NOTAM) as an emergency action of immediate flights safety relating directly to published aeronautical charts.

The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making some SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore-(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, 14 CFR part 97 is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:

This rule amends 14 CFR part 97 by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Air Missions (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, pilots do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained on FAA form documents is unnecessary. This amendment provides the affected CFR sections, and specifies the SIAPs and Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.

The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.

The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.

Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, 14 CFR part 97 is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:

This document states the basis and purpose for the Commission's decision to adopt amendments to the TSR that were proposed and published for public comment in the Federal Register on April 16, 2024, in a notice of proposed rulemaking (“2024 NPRM”). 1 The Commission has carefully reviewed and considered the entire record on the issues presented in this rulemaking proceeding. The record includes 25 public comments submitted by a variety of interested parties, none of which opposed the issuance of a final rule amending the TSR to cover technical support calls made by consumers in response to solicitations. The Commission has decided to adopt, with one modification, the proposed amendments to the TSR that are intended to address consumer injury from deceptive technical support scams.

Congress enacted the Telemarketing and Consumer Fraud and Abuse Prevention Act (“Telemarketing Act” or “Act”) in 1994 to curb abusive telemarketing practices and provide key anti-fraud and privacy protections to consumers. 2 The Act directed the Commission to adopt a rule prohibiting deceptive or abusive telemarketing practices. 3 Pursuant to the Act, the Commission promulgated the TSR on August 23, 1995. 4

The Rule prohibits deceptive or abusive telemarketing practices, such as misrepresenting several categories of material information or making false or misleading statements to induce a person to pay for a good or service. 5 The Rule also requires sellers and telemarketers to make specific disclosures and keep certain records of their telemarketing activities. 6

Since 1995, the Commission has amended the Rule on five occasions: (1) in 2003 to create the National Do Not Call (“DNC”) Registry and extend the Rule to telemarketing calls soliciting charitable contributions (“charity calls”);  7 (2) in 2008 to prohibit prerecorded messages (“robocalls”) in sales calls and charity calls;  8 (3) in 2010 to ban the telemarketing of debt relief services requiring an advance fee;  9 (4) in 2015 to bar the use in telemarketing of certain payment mechanisms widely used in fraudulent transactions;  10 and (5) in 2024 to modify the Rule's recordkeeping requirements and prohibit deception in calls between businesses. 11

The Rule exempts from its coverage certain calls that consumers make to telemarketers, known as inbound calls. 12 The Rule generally exempts inbound calls that are: (1) not the result of any solicitation, (2) in response to certain advertisements, and (3) in response to a direct mail solicitation that contains certain information. 13 However, the exemptions for inbound calls contain exclusions for certain types of calls that are often deceptive, such as inbound calls relating to investment opportunities, debt relief services, and prize promotions. 14 In the 2024 NPRM, the Commission proposed covering inbound telemarketing of technical support services (or tech support) in the Rule ( i.e., adding it to the exclusions identified in § 310.6(b)(5) and (6)) because of the harm associated with telemarketing these products and services. 15

Tech support scams consistently generate large numbers of consumer complaints. 16 The scams can begin in a variety of ways. Sometimes the scammer places an outbound call to consumers warning them that their computers have been infected. 17 Other scammers use deceptive computer pop-up messages that claim the consumer's computer has a problem and direct the consumer to call a phone number to fix the errors. 18 Still other scammers place advertisements with search engines that appear when consumers search for their computer company's tech support telephone number. 19 And sometimes, scammers pay computer security software companies so that when consumers call to activate their service, they reach the scammer and are pitched additional and unnecessary products and services. 20 Once consumers connect with the scammer, whether through outbound telemarketing or inbound telemarketing, the scammers deceive consumers about a variety of problems with their computers and persuade consumers to purchase subscription tech support services or software that they do not need. 21

Although tech support scams have typically targeted consumers looking for help with computers, tech support scams also target consumers looking for help with other electronic devices, such as cellular phones and smart home devices. News stories report on consumers encountering tech support scams when they search for help with their iPhones, 22 receive pop-up messages on their iPads, 23 or look for support for their Kindle tablets. 24 In August 2022, Amazon filed a lawsuit alleging that a deceptive tech support operation targeted consumers who were seeking help with their smart home doorbells and streaming video services. 25

Consumer complaints about tech support scams have increased dramatically over the last few years, ranging from approximately 40,000 complaints in 2017 to more than 90,000 complaints in 2023. 26 In 2023, consumers reported losing approximately $242 million to these scams, with a median loss of $1,400. 27

Moreover, tech support scams disproportionately harm older consumers. In 2023, consumers 60 years of age and older were six times more likely to report a financial loss to tech support scams compared to younger consumers. 28 Analysis of consumer fraud reports confirm that a disproportionate number of older consumers have reported losing money to tech support scams. From 2015 to 2018, older consumers filed more reports on tech support scams than on any other fraud category. 29

The Commission has responded to tech support scams through consumer education and law enforcement actions. For consumer education, the Commission has issued guidance to consumers including “New tech support scammers want your life savings,”  30 “How to Spot, Avoid, and Report Tech Support Scams,”  31 and “Keep tech support strangers out of your computer.”  32 The Commission has also responded to particular tech support campaigns with consumer education such as “Fake Calls from Apple and Amazon Support: What you need to know,”  33 “No gift cards for tech support scammers,”  34 and “FTC asking for access to your computer? It's a scam.”  35 Other government agencies and consumer organizations have also issued guidance on tech support scams. 36

In addition to consumer education, the Commission and other State and Federal law enforcement partners have brought a multitude of actions against tech support scammers. For example, on May 12, 2017, the Commission announced “Operation Tech Trap” which consisted of 29 law enforcement actions brought by the Commission and other law enforcement agencies against tech support schemes. 37 On March 7, 2019, the Department of Justice announced the largest-ever elder fraud sweep, which focused on tech-support scams and involved actions against “more than 260 defendants from around the globe who victimized more than two million Americans.”  38 In addition, the Commission has filed numerous tech support cases outside the scope of such coordinated law enforcement sweeps. 39

Section 203(b)(4) of the Immigration and Nationality Act (INA), as amended 8 U.S.C. 1153(b)(4), generally provides that visas may be issued to qualified special immigrants described in INA section 101(a)(27). Among the individuals considered “special immigrants” as defined in this provision, INA section 101(a)(27)(D), 8 U.S.C. 1101(a)(27)(D), defines “special immigrant” to include employees, or honorably retired former employees, of the U.S. Government abroad, or of the American Institute in Taiwan, who have performed faithful service for a total of fifteen years or more, in addition to their accompanying spouse and children, and who have been recommended and approved for such status in accordance with enumerated criteria.

Section 403(a) of the Emergency Security Supplemental Appropriations Act, 2021 (“ESSAA”), Public Law 117-31, 135 Stat. 309, 318, amended the definition of a special immigrant at INA section 101(a)(27)(D) to include a new subclause (ii). The new subclause includes in the definition of “special immigrant” the surviving spouse or child of an employee of the United States Government abroad: Provided, [t]hat the employee performed faithful service for a total of not less than 15 years or was killed in the line of duty.” Under this provision, the qualifying surviving spouse or child of a U.S. Government employee is a principal applicant for special immigrant status, and consequently, their current spouse and minor child(ren) are entitled to SIVs as derivatives under INA section 203(d), 8 U.S.C. 1153(d), if accompanying or following to join the qualifying surviving spouse or parent. Pursuant to section 403(d) of the ESSAA, these changes are effective June 30, 2021, and have retroactive effect.

In addition to the qualifications for this group of “special immigrants,” INA section 204(a)(1)(G)(ii) governs the process through which an individual claiming status as a special immigrant under INA section 101(a)(27)(D) must file a petition with the Department of State, requiring that they first be recommended and approved for such status.

Under INA sections 204(a)(1)(G)(ii) and 101(a)(27)(D)(i), acquisition of special immigrant status under INA section 101(a)(27)(D) requires multiple sequential steps. First, the principal officer of the U.S. embassy or consulate with jurisdiction over where the individual was employed must have recommended the granting of special immigrant status in exceptional circumstances, and the Secretary of State or appropriate designee must have approved the recommendation and found that it is in the national interest to grant such status. Second, under INA section 204(a)(1)(G)(ii), only after the approval of the recommendation, the applicant may submit a Form DS-1884, Petition to Classify Special Immigrant Under INA 203(b)(4) as an Employee or Former Employee of the U.S. Government Abroad, or the Surviving Spouse or Child of an Employee of the U.S. Government Abroad, to a consular officer at a foreign service post. Under Department regulations at 22 CFR 42.34(b)(2), the date the applicant's properly completed DS-1884 is accepted becomes the applicant's priority date. Those same regulations at 22 CFR 42.34(b)(4) provide that a petition from a qualifying individual is valid for six months from the date of approval or the date an immigrant visa number becomes available, whichever is later.

Prior to passage of the ESSAA, if the employee were to die before entering the United States using their immigrant visa, the surviving spouse or child would be ineligible for immigrant status. With the passage of the ESSAA, a surviving spouse and surviving child(ren), as a principal applicant, are eligible to seek qualification as a special immigrant. Additionally, in situations where the employee did not pursue special immigrant status prior to the employee's death, their surviving spouse and/or child may now qualify to be approved for status. These changes apply retroactively, meaning that the surviving spouse or child of an employee who died prior to the effective date of the ESSAA may also seek to qualify. To be a surviving spouse, the spousal relationship must have existed at the time of the deceased employee's death. To be a surviving child, the adult son or daughter of the deceased employee must have met the definition of “child” under INA section 101(b)(1) on the date of the employee's death.

This rule makes updates to the Department's regulations at 22 CFR 42.11 that list the symbols of the current immigrant visa classifications to conform with the new classifications added by the ESSAA. Specifically, under the “Employment 4th Preference (Certain Special Immigrants)” header, the Department is adding: The “SS1” symbol that will be used for issuance of SIVs to the surviving spouse or child of a U.S. Government employee; the “SS2” symbol that will be used for issuance of an SIV to the current spouse of an SS1 who qualifies as a derivative under INA 203(d); and the “SS3” symbol that will be used for issuance of an SIV to the minor child(ren) of an SS1 who meet(s) the definition of “child” under INA 101(b)(1) and 203(h), and qualify(ies) as a derivative under INA 203(d).

This rule makes changes to Department regulations at 22 CFR 42.34 to conform with the expanded definition of “special immigrant” under the ESSAA. For the reasons explained below, the Department believes these (or equivalent) changes are necessary to implement the best reading of the ESSAA. The changes include the explanation of the classification of a surviving spouse or child of an employee of the United States Government abroad who was killed in the line of duty, or who performed faithful service for at least fifteen years before their death.

As summarized above, the ESSAA added a new subsection (ii) to INA 101(a)(27)(D) and amended INA 101(a)(27)(D) to specify that a “special immigrant” includes an individual described in clause (D)(i) “or” clause (D)(ii). The ESSAA did not amend INA 204(a)(1)(G)(ii), which governs the process through which an individual petitions for status “as a special immigrant under INA 101(a)(27)(D).” Consequently, as this provision was not amended to distinguish the petition process for special immigrants described in INA 101(a)(27)(D)(i) or INA 101(a)(27)(D)(ii), INA 204(a)(1)(G)(ii) continues to govern the petition process for both subcategories of “special immigrants” described in section 101(a)(27)(D), providing that applicants seeking status under either subcategory “may file a petition . . . only after notification by the Secretary of State that such status has been recommended and approved pursuant to such section.” Although INA 101(a)(27)(D)(ii) as amended does not expressly reference a framework for recommendation and approval, INA 101(a)(27)(D)(i) establishes the standards for a recommendation and approval process, including that the recommendation of an individual for special immigrant status be made in “exceptional circumstances” and the approval be “in the national interest,” as well as identifies officers vested with authority for those respective functions. Incorporating into INA 101(a)(27)(D)(ii) the standards and process for recommendation and approval expressly provided by Congress in INA 101(a)(27)(D)(i) reflects the best reading of the statutory framework as amended by ensuring consistency with the companion provision in INA 204(a)(1)(G)(ii) requiring recommendation and approval of such cases and ensuring the consistent application of the longstanding framework for the granting of special immigrant visas to U.S. Government employees.

To address potential inconsistencies in how this change would be implemented using the existing definition of “exceptional circumstances” at 22 CFR 42.34(c)(7), this rule explains the circumstances in which a surviving spouse or child would be recommended for special immigrant status, based on the criteria described in INA section 101(a)(27)(D)(ii). In addition to qualifying employees' deaths that occurred in the line of duty, these include when the deceased employee performed at least 15 years of faithful service for the U.S. Government and either would have qualified for special immigrant status before dying or was employed by the U.S. Government as of the date of their death or in the immediately preceding five-year period. These parameters will encompass those family members of deceased employees who, but for their death following at least 15 years of faithful service, were likely to have soon qualified for special immigrant status by accumulating 20 years of faithful service (where 20 years is a strong indicator of exceptional circumstances under 22 CFR 42.34(c)(7)(ii)(E)). This standard encompasses those who were employed by the U.S. Government in the period immediately preceding their death, as the Department anticipates that in some cases, an employee may have ceased employment by the U.S. Government with the intention of returning, but for circumstances out of their control. For example, an employee who dies following a serious illness may have ceased or temporarily left their employment for a period to combat their illness. Consequently, to provide clarity to the public and support consistent application, the rule establishes a rebuttable presumption that a death occurring more than five years after cessation of employment is not related to the cessation of their employment for purposes of their surviving spouse or child qualifying for special immigrant status.

The Department believes this five-year presumption will account for the gravity and severity of the circumstances surrounding cessation of employment, and the likelihood that a previously employed individual would have returned to work to complete 20 years of service, if they were able to do so. This presumption is rebuttable and will require case-specific consideration of those individuals whose circumstances fall outside the five-year presumption and who wish to provide evidence to establish their qualifications. Surviving spouses and children of employees who died for reasons unrelated to cessation of employment are not precluded from qualifying as special immigrants, provided they can demonstrate that the employee demonstrated at least one form of “exceptional circumstances” while still employed. The changes also highlight that the processes to qualify for eligibility are the same for a surviving spouse or child as they are for employees. These changes make necessary amendments to 22 CFR 42.34 to provide for the issuance of SIVs to qualified surviving spouses and children of U.S. Government employees, and to reflect the amended citations in INA section 101(a)(27)(D) under the ESSAA.

This rule also makes corrections throughout 22 CFR 42.34 to replace the term “alien” with the term “applicant” or “employee,” as appropriate. This change is consistent with current Department practice. 1

Finally, this rule also amends the certification, required as part of the principal officer's recommendation, that the individual being recommended is prepared to pursue an immigrant visa application “within one year of the Department's notification to the post of approval of special immigrant status.” As applicants in numerically limited immigrant visa categories, including INA section 203(b)(4), may not pursue an immigrant visa application until such time that a visa number becomes available in that category, this requirement has been changed to reflect that the recommended individual must be prepared to pursue their application “within one year of the Department's notification to the post of approval of special immigrant status, or of an immigrant visa becoming available, whichever is later.”

This rule is exempted from the notice and comment and delayed effective date rulemaking procedures set forth in 5 U.S.C. 553 because the rule involves a foreign affairs function. 5 U.S.C. 553(a)(1). This exemption applies when the rule's subject matter “is clearly and directly involved in a foreign affairs function.” Mast Indus. v. Regan, 596 F. Supp. 1567, 1582 (C.I.T. 1984) (quotation marks omitted). In addition, although the text of the APA does not require an agency invoking this exemption to show that rulemaking with public notice and comment would result in “definitely undesirable international consequences,” some courts have required such a showing. See, e.g., Yassini v. Crosland, 618 F.2d 1356, 1360 n.4 (9th Cir. 1980). This rule satisfies both standards.

This rule extends the authority to grant special immigrant status to the surviving spouse or child of a U.S. Government employee who performed faithful service for at least fifteen years or was killed in the line of duty. As with the availability of special immigrant status to qualifying locally employed staff, eligibility for employees' surviving spouses and children encourages employees to remain in their jobs and to provide long-term, institutional memory to U.S. Government agencies abroad. This is particularly essential in countries where local staff members and their families face retribution by the host government, making it even more challenging to recruit and retain a locally employed workforce. For this reason, extending eligibility to the employee's surviving spouse and children critically impacts the willingness of foreign nationals to become, and remain, employees of the U.S. Government in overseas posts, and hence directly impacts the effectiveness of U.S. diplomatic efforts in those countries.

The Department's establishment of criteria for surviving spouses and child(ren) to qualify for special immigrant status under ESSAA clearly and directly relates to U.S. foreign affairs, because the criteria itself is critical for the U.S. Government to recruit and retain loyal, valuable local staff outside the United States, without whom the Department could not fulfill its diplomatic functions overseas. The Department alone employs approximately 50,000 local staff at over 200 Foreign Service posts overseas. Expanded qualifications for surviving spouses and child(ren) is critical to recruitment, retention, and morale of these locally employed staff who help the Department carry out its foreign affairs functions overseas. For example, following the 2013 death of Mustafa Akarsu, a member of the local guard force for U.S. Embassy Ankara for 22 years, when he confronted a suicide bomber outside the Embassy, Department employee organizations including the American Foreign Service Association, advocated for passage of legislation eventually enacted in ESSAA to provide SIVs to the surviving spouses and children of U.S. Government employees killed in the line of duty. Consequently, implementation of these standards for surviving family members clearly and directly involves a U.S. foreign affairs function.

Finally, the Department considers that providing the opportunity for public notice and comment would provide “definitely undesirable international consequences,” in that conducting and resolving a public debate regarding the safety of surviving spouses and children of U.S. Government employees killed abroad would risk impairing U.S. relations with other countries. See, e.g., Rajah v. Mukasey, 544 F.3d 427, 437 (2d Cir. 2008). The loss of United States local employees in the line of duty has previously had the effect of straining bilateral relations, and has the continued potential to do so, particularly when such losses involve local foreign authorities or other parties over which the host country exercises control. This may be even more so in countries with which the United States already has sensitive or strained relations, which may oppose the availability of immigrant visas to the surviving spouses and children of such staff, who are usually nationals of the host country. Accordingly, the promulgation of standards for approval under the Secretary of State's authority in INA 101(a)(27)(D) involves an inherently foreign affairs function of the Department of State.

As this final rule is exempt from notice and comment rulemaking under 5 U.S.C. 553(a)(1), it is exempt from the regulatory flexibility analysis requirements set forth by the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Nonetheless, as this action only directly impacts visa applicants, the Department certifies that this rule will not have a significant economic impact on a substantial number of small U.S. entities.

This rule is not a major rule as defined in 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based companies to compete with foreign-based companies in domestic and import markets.

This rule has been drafted in accordance with the principles of Executive Orders 12866 (as amended by Executive Order 14094) and 13563. The Department has submitted this rule to OIRA for review and it has been deemed a significant regulatory action.

The Department of State has reviewed the rule considering sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burdens.

The Department of State has determined that this rulemaking will not have Tribal implications, will not impose substantial direct compliance costs on Indian Tribal Governments, and will not pre-empt Tribal law. Accordingly, the requirements of Section 5 of Executive Order 13175 do not apply to this rulemaking.

This rule does not impose any new reporting or record-keeping requirements subject to the Paperwork Reduction Act (PRA), 44 U.S.C. Chapter 35. The Form DS-1884, Petition to Classify Special Immigrant under INA 203(b)(4) as an Employee or Former Employee of the U.S. Government Abroad, is approved under the PRA (OMB Control No. 1405-0082).

The Department has also considered the Unfunded Mandates Reform Act of 1995 and Executive Orders 12372 and 13132 and affirms this rule is consistent with the applicable mandates or guidance therein.

Accordingly, for the reasons set forth in the preamble, 22 CFR part 42 is amended as follows:

This final rule implements a change and increase in registration fees for certain persons required under 22 U.S.C. 2778(b) to register with the Department of State's Directorate of Defense Trade Controls (DDTC) and pay a registration fee. It also returns the amount of fees registrants must pay to the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120 through 130) and makes clarifying revisions to part 122 of the ITAR. This final rule follows a proposed rule (89 FR 31119), published on April 24, 2024, which included the proposed revisions to DDTC's registration fees and corresponding amendments to the ITAR.

As noted in its proposed rule, for the first time in fifteen years, the Department proposed to revise and increase the registration fees (also referred to as “fees”) charged to those required to register with DDTC. This increase is necessary because DDTC operations are primarily funded by fees. Without a sufficient increase to meet operational costs that have significantly risen since 2008, DDTC would be faced with untenable budget deficits and would be forced to reduce its services.

In accordance with section 38(b) of the Arms Export Control Act (AECA) (22 U.S.C. 2778(b)) and ITAR § 122.1 (22 CFR 122.1), every person who engages in the business of manufacturing, exporting, temporarily importing, or brokering any defense articles or defense services is required to register with DDTC, the agency charged with administering the relevant sections of the AECA. Section 38(b) of the AECA also requires that every person required to register pay a registration fee. As the ITAR implements section 38 of the AECA, and as its parts 122 and 129 (22 CFR parts 122 and 129) address registration, the Department proposed to revise those provisions to restate registration requirements without substantive change, to revise the Department's methodology for determining the fees paid by certain registrants, to increase registration fees, and to reinsert the actual amount of fees within the ITAR itself. The Department now provides responses to comments received on the proposed rule and amends the ITAR as of the effective date of this rule, with one correction from the proposed rule.

In this final rule, the Department makes the changes it previously proposed, with one minor change. Due to a typographical error, the Tier 3 fee multiplier for favorable determinations was misidentified in two places as $1,110 instead of the correct amount of $1,100. The Tier 3 fee multiplier was correctly introduced in the preamble as $1,100 (89 FR 31121), but a subsequent preamble reference to the Tier 3 fee multiplier was misidentified as $1,110 (89 FR 31122). In addition, the incorrect reference was carried forward to amendatory instruction 3 of the proposed rule and identified the Tier 3 fee multiplier at proposed § 122.3(a)(3) as $1,110 (89 FR 31124). This final rule adopts the correct Tier 3 fee multiplier of $1,100 at ITAR § 122.3(a)(3).

During the 45-day public comment period (April 24, 2024, through June 10, 2024) DDTC received 19 separate submissions from individuals, corporations, and industry associations in response to the notice of proposed rulemaking, some of which discussed more than one aspect of the proposed rule. All relevant comments addressed only ITAR § 122.3, which included proposed changes to the registration fees. The Department received no questions or comments on other changes in the proposed rule.

Several commenters expressed a view that the proposed increase is an unjust burden on small business and may be a barrier to entry for new small business registrants. One commenter in particular claimed that the increase in registration fees would be especially difficult for manufacturers who do not export but are required by large corporations to be registered with DDTC to do business with them and advised the new registration fee would subject their company to paying 1 percent of their gross revenue to be able to sell products domestically for DoD end-use. As a threshold matter, the Department is aware that some private sector businesses elect to have their own separate requirement for businesses with which they contract to be registered with DDTC, even when those contracting businesses are not legally required to register with DDTC under ITAR § 122.1. Such varying requirements by some private sector businesses are outside of the scope of ITAR § 122.1. Pursuant to ITAR § 122.1, persons who are not engaged in the business of manufacturing, exporting, or temporarily importing defense articles are not required by ITAR § 122.1 to register with DDTC. With respect to the fee amount, the Department notes that registrants who do not export fall within Tier 1 and pay the base fee of $3,000. That base fee represents a 33.1 percent increase from the prior Tier 1 fee, which is approximately 12 percent less than the increase for Tier 2 and is slightly less than it would have been had the Department used the 40.1 percent inflation adjustment based on 2008 dollars, when the registration fees were last amended.

The Department acknowledges and understands the commenters' concerns regarding small businesses. In response, the Department is instituting a planned one-year initiative for qualifying Tier 1 registrants, during which the Department will assess impact and consider extension. Tier 1 registrants may petition DDTC for consideration of a $500 discount (for a total registration fee of $2,500). To qualify, registrants must provide some form of proof that $3,000 was 1 percent or more of their total revenue for the last calendar year. “Total revenue” is the total amount of income and is not limited to sales of items controlled on the U.S. Munitions List (USML). Applicants must submit a complete request for special consideration to DDTC at least 30 calendar days prior to expiration of their current registration term. More information is available on the DDTC website, by searching “registration fee.” Moreover, as a result of the feedback received, the Department will review its registration fee structure more regularly to avoid large-percentage changes to registration fees.

In addition, the Department continues to have a process for registrants where they may address registration fee concerns. Tier 2 and Tier 3 registrants whose registration fees are greater than $3,500 may petition DDTC for a pre-set alternate payment schedule. To be considered for an alternate payment schedule, registrants must provide some form of proof that their registration fee is greater than 1 percent of their total sales in the given year. Total sales include domestic and international sales and are not limited to sales of items described on the USML. Additionally, the Department continues to have discounts available for Tier 3 renewals. To ensure fairness to those registrants in Tier 3, if the registrant timely shows that their total registration fee is greater than 3 percent of the total value of favorable determinations on license applications or other requests for authorization during the 12-month period ending 90 days prior to expiration of the current registration, the registration fee may be reduced to 3 percent of the value of such authorizations, or $4,000, whichever is greater. The Department also has discounts for exporters and temporary importers of low-value authorizations who fall under Tier 3, as described on the DDTC website ( https://www.pmddtc.state.gov; under Support > Review FAQs > DECCS—Registration > “Understanding the Renewal Fee Download File”). Registrants who are wholly exempt from income taxation pursuant to 26 U.S.C. 501(c)(3) also qualify for the Tier 1 registration fee of $3,000.

One commenter agreed the proposal is fair for Tier 3 registrants to pay more than Tier 1 and Tier 2 registrants as they consume more services from DDTC, while expressing overall concern about the higher registration fees for all tiers.

Multiple commenters stated that the Tier 1 and Tier 2 inflationary adjustments are difficult for small businesses, citing negative economic impacts for their companies and that the registration fee increase is more than the rate of inflation increase since 2008. The Department appreciates that any increase in registration fees may cause difficulties for businesses, particularly small businesses. However, the Department assessed that after fifteen years of inflation, increasing technological improvements, and improved services, that an increase in the amount of registration fees is necessary for the continued and modernized operations of DDTC. Reflecting considerations such as those in the comments it expected to receive, DDTC set the Tier 1 and Tier 2 registration fee amounts to reflect an increase fairly consistent with inflation over the last fifteen years. Several commenters expressed concern that the Tier 3 proposed registration fee is significantly above the inflation rate when the additional fee multiplier for favorable determinations is factored in. The Department acknowledges this is accurate. The proposed registration fee structure allows DDTC to fund a large share of the many critical functions it provides to exporters, importers, brokers, manufacturers, and the public—such as the DDTC Response Team, Help Desk, commodity jurisdiction determinations, advisory opinions, guidance on brokering, and support for registration—all of which offer services for the approximately 14,500 current DDTC registrants and also for the general public. The Department has concluded that Tier 3 registrants have benefited the most from DDTC's improvements, specifically the Defense Export Control and Compliance System (DECCS) and customer service improvements, and that they are best positioned to contribute from their export-derived revenue to continue and improve DDTC's services. Additionally, Tier 3 registrants have more frequent interactions with DDTC and thus require more DDTC services. Because these improvements primarily benefit Tier 3 registrants, it is those registrants that will be asked to contribute more. Finally, the Department again notes the availability of discounted registration fees for high-volume, low-value Tier 3 registrants.

One commenter asked for clarification of how favorable determinations are classified and defined, and whether the scope of other requests for authorization encompasses application amendments and proviso reconsiderations. The commenter also asked the following questions: Are proviso reconsiderations included in the total? Are agreement amendments included in the total? The Department acknowledges this comment and clarifies that a favorable determination is an approval, an approval with provisos (sometimes also referred to as an approval with conditions), or written authorization from DDTC to conduct an activity regulated by the ITAR. An application that is returned without action or denied is not a type of favorable determination. That said, amendment requests and requests for proviso reconsiderations are considered in the registration fee calculation when they are positively adjudicated.

One commenter inquired how DDTC was able to temporarily reduce its Tier 1 and Tier 2 registration fees to $500 for 1 year due to the coronavirus (COVID-19) pandemic, yet the agency needs to increase its registration fees now. Given the extraordinary impact of COVID-19 on the national economy and Defense Industrial Base, DDTC temporarily reduced registration fees for registrants in Tier 1 and Tier 2 to $500 to help mitigate against the uncertain economic impact of the COVID-19 public health emergency. The temporary reduction in registration fees that occurred four years ago was a special circumstance and is unrelated to the current proposed registration fee changes.

One commenter suggested that DDTC consider implementing pricing scales for different types of licenses or consider additional streams of revenue available outside of registration fees. For example, the commenter suggested that DSP-6, DSP-74, and DSP-62 may be billed at a lower rate due to the limited time and resources needed to review and approve applications. Further, the same commenter also suggested limited fee structures may be explored for foreign entities that request DSP-6004 for reexports or retransfers. The Department notes that under the Arms Export Control Act, DDTC is authorized to charge for registration fees, not a fee per license.

One commenter noted that as a risk mitigation practice, companies often apply for a license when the regulatory language or environment is unclear. DDTC's proposed license fee increases may disincentivize companies from submitting licenses when the regulatory requirements are ambiguous. The Department notes the ITAR requires a license for the export, temporary import, or furnishing of defense services. Industry may submit a request for an Advisory Opinion to get more information on regulatory language. The “Advisory Opinions (AO)” application in DECCS allows industry users to electronically submit inquiries pursuant to ITAR §§ 120.22(a) (for preliminary authorization determinations) and (c) (for interpretations of ITAR requirements other than brokering) and 129.9(a) (for guidance whether an activity is a brokering activity) and (c) (for guidance on other areas of brokering).

One commenter inquired how the new registration fees will increase the investments in DECCS and technology. The Department provides that DDTC plans include continuing to update DECCS with user-requested and other enhancements, specifically as it applies to the DECCS-Licensing application and its integrations with other external applications ( e.g., USXports, Automated Export System). The DDTC IT Modernization Team is tracking these enhancements for continued improvements and meets periodically with the DECCS User Group (DUG) and the Defense Trade Advisory Group (DTAG) regarding information technology (IT) user matters and responds to feedback from both. The DDTC IT Modernization Team will continue to share periodic updates with and solicit feedback from both the DTAG and the DUG.

One commenter suggested that DDTC take a phased approach to increasing its registration fees so that registrants may account for budgeting while mitigating their financial risks. The Department understands the need for entities to budget for this proposed increase and is therefore delaying the effective date and implementation of this new rule until January 2025. DDTC will continue to socialize the new registration fee structure so that registrants are aware of the new registration fees ahead of the implementation. All registrants will continue to receive a letter in DECCS that states their new registration fee 90 days ahead of their due date. Additionally, DDTC plans to conduct registration fee analyses every two-years, which should mitigate the need for a similarly significant increase in the future. DDTC will continue to solicit public comment to gather industry's point of view.

The Department received a few comments asking for additional detail about how the Department determined the new registration fee costs. One commenter suggested that DDTC should disclose a budget for these increased estimated funds “and then justify that spend in how it will continue to serve and improve industry.” Based on the Department's analysis, the proposed increase in registration fees allows DDTC to adjust for inflation, to continue to make IT and other internal improvements, and to efficiently address industry's needs, as stated above. The increased registration fees are necessary to maintain the high level of service of the statutorily required export control system. DDTC will continue to engage with industry (via the DTAG, DUG, and industry events) to provide insights into how the organization serves the regulated community.

In addition to the comments addressed above, the Department received several comments outside the scope of this rulemaking. The Department takes note of these comments but is not entertaining substantive revisions to other existing text of the ITAR in this rulemaking.

The Department has historically determined that rulemakings implementing the Arms Export Control Act or amending the ITAR involve a military or foreign affairs function of the United States under 5 U.S.C. 553(a). However, due to Department's interest in seeking public comment on this rule, the Department solicited comments during a 45-day comment period, to which it is now responding in this final rule.

Since this rule is exempt from the notice-and-comment rulemaking provisions of 5 U.S.C. 553, it does not require analysis under the Regulatory Flexibility Act.

This rulemaking does not involve a mandate that will result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rulemaking does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this rulemaking.

The Department does not believe that this rulemaking is a major rule, as defined by the Congressional Review Act, 5 U.S.C. 800 et seq.

Executive Orders 12866 (as amended by Executive Order 14094) 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, distributed 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. This final rule has not been designated as a significant regulatory action by the Office of Information and Regulatory Affairs under Executive Order 12866, as amended.

As noted in the proposed rule, roughly 14,500 registrants in fiscal year (FY) 2023 contributed registration fees to DDTC's FY 2023 collections amounting to $33.8 million. Based on projections made from registrant data from recent years, the new registration fee structure, which presumes roughly the same number of registrants, is expected to bring in an overall total of roughly $67.2 million per year, which would be an overall increase of $33.4 million per year. Although this is a 99 percent projected increase in collections overall from current registration fees for FY 2025, DDTC's projected operational budget will be nearly $60 million, and that amount is expected to continue to increase based on inflation and other increases in expenses. DDTC's $60 million budget includes (but is not limited to) contract labor support, IT services, personnel salaries, outreach, and travel. Accordingly, the revised registration fee structure is necessary for DDTC to continue operating to meet its mission. No action or an insufficient increase would cause budget deficits or a cut in necessary services. Further to a qualitative benefit-cost analysis, the registration fee structure finalized here benefits DDTC by meeting its budget demands in a way that also reasonably accounts for unknown variables such as changes in the number of registrants, or potential exemptions that would not require specific license applications or approvals and therefore decreases the expected collections from Tiers 2 and 3. It also allows for benefits to the regulated community, enabling DDTC to address unexpected contingencies as it did in 2020, when it temporarily lowered registration fee amounts as a relief measure during the COVID-19 pandemic.

The largest increase, on a per-registrant basis, falls on Tier 3 registrants. The Department believes this increase is justified for the reasons discussed previously, including that Tier 3 registrants derive greater benefits from engaging in regulated activities while also consuming a disproportionate amount of DDTC support services. As stated above, the Department continues to have discounts available for Tier 3 renewals. To ensure fairness to those registrants in Tier 3, if they timely show that their total registration fee is greater than 3 percent of the total value of favorable determinations on license applications or other requests for authorization during the 12-month period ending 90 days prior to expiration of the current registration, the registration fee may be reduced to 3 percent of the total license value of such authorizations, or $4,000, whichever is greater, as described on the DDTC website ( https://www.pmddtc.state.gov ) under Support > Review FAQs > DECCS—Registration > “Understanding the Renewal Fee Download File.” Because we project registrants in Tier 3 to account for over 22,000 of the roughly 26,000 applications expected to be adjudicated by DDTC, the Department believes that this is a more equitable distribution of financial costs. Tier 1 and Tier 2 registrants, on the other hand, will see a 33 percent and 45 percent increase, respectively, not far from the near 40 percent inflation rate in the over fifteen years since the registration fees were last adjusted.

As mentioned above, the Department is putting a new consideration in place for Tier 1 registrants. This was done both in response to comments received and due to a resulting benefit-cost analysis. Qualitatively, the Department does not aim to impose unnecessary costs on registrants, particularly small-business registrants. On the other hand, quantitatively, the Department does not know how many registrants, let alone how many Tiers 1 registrants, are small businesses. Nor does it know their average sales or revenues. The Department does not collect any of this information. Moreover, North American Industry Classification System (NAICS) codes do not provide suitable estimates as there are many industry codes that may have certain companies become registrants based on their activities, and not based on any one or several codes. Consequently, estimating the impact of lower registration fees for such entities on DDTC's necessary revenues and operating budget is not possible. Despite the quantitative uncertainty and risk, the qualitative benefits and the chance to assist some small businesses outweighed the costs to DDTC when the scope of that assistance could be reasonably targeted. To that end, the $500 registration fee-discount petition process introduced above for Tier 1 registrants whose fees equal 1 percent or more of their total revenue in a given year is a way that the Department could mitigate against the burdens that come from the registration fee increase. Tier 1 registrants who receive this discount would end up with a registration fee increase of $250 more, or 11.1 percent more, than their current registration fee, which was last adjusted sixteen years ago in September 2008. The $500 registration fee discount would be 16.67 percent less than the usual Tier 1 registration fee this rule establishes. Because of the unknown volume and effect of this discount, the Department will offer the petition process for one year; however, based on how it affects the budget, the Department will reevaluate whether it may continue the process in future years. Additionally, a further-out delayed effective date until January 2025 for the new registration fee structure was part of the Department's benefit-cost analysis and was done so as to give more lead time to entities to plan for new costs.

The Department of State has reviewed this rulemaking in light of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

The Department of State has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian Tribal governments, and will not preempt Tribal law. Accordingly, the requirements of Executive Order 13175 do not apply to this rulemaking.

This rulemaking does not impose or revise any information collections subject to 44 U.S.C. chapter 35.

The Under Secretary, Arms Control and International Security, Bonnie D. Jenkins, having reviewed and approved this document, has delegated the authority to electronically sign this document to Stanley L. Brown, Acting Assistant Secretary, Bureau of Political-Military Affairs, for purposes of publication in the Federal Register .

For the reasons discussed in the preamble and under the authority of 22 U.S.C. 2778, the Department of State amends title 22, chapter I, subchapter M, parts 122 and 129 of the Code of Federal Regulations as follows:

This final rule revises MSHA's regulations under title 30, Code of Federal Regulations (CFR) part 18 (Part 18), concerning testing, evaluation, and approval specifications and requirements for electric motor-driven mine equipment and accessories intended for use in hazardous atmospheres encountered in gassy mines. While this final rule does not change MSHA's approval process, it offers more flexibility in the testing, evaluation, and approval requirements that product designers and manufacturers must meet in seeking MSHA approvals. Under the final rule, manufacturers that design and build electric motor-driven equipment and accessories conforming to voluntary consensus standards (VCS) may obtain MSHA approval without having to redesign or modify the equipment to meet MSHA-unique requirements. 1

This final rule incorporates by reference eight VCS approved by the American National Standards Institute (ANSI) and allows applicants seeking MSHA approvals to follow either Part 18 requirements that are unique to MSHA or the ANSI-approved VCS. While adding flexibility for product designers and manufacturers, this final rule maintains the safety measures associated with the Agency's testing, evaluation, and approval requirements for equipment used in gassy mines.

This final rule will promote the use of innovative and advanced technologies for electrical equipment used in gassy mines, leading to improvements in mine safety and health. Until now, the introduction of innovative and advanced electrical equipment in U.S. mines may have been limited by the need to meet MSHA-unique requirements for approval. The final rule will allow manufacturers that design and build electric motor-driven equipment and accessories (hereafter referred to as electrical equipment) conforming to the VCS listed in Part 18 to obtain MSHA approval without having to redesign or modify the equipment to meet MSHA-unique requirements. The use of VCS will make the approval process more efficient for applicants seeking MSHA approval for their products. As a result, MSHA's acceptance and use of VCS will make technologically advanced equipment available for use in U.S. mines more quickly and cost-effectively than is possible under existing MSHA-unique requirements, without sacrificing the safety measures associated with MSHA approvals.

Additionally, the Office of Management and Budget (OMB) Circular A-119, entitled “Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities.” (Jan. 27, 2016 (81 FR 4673)) directs agencies to use VCS in lieu of government-unique standards except where doing so would be inconsistent with law or otherwise impractical. In response to Circular A-119 and stakeholder comments, MSHA is incorporating the use of VCS in this final rule. The VCS included in the final rule are suitable for gassy mining environments and provide protection against fire or explosion hazards.

The final rule has three major provisions: accepting and using VCS; incorporating by reference eight ANSI-approved VCS while also allowing the use of existing Part 18 requirements for MSHA approvals; and reviewing more recent versions of the approved VCS as well as other VCS for use in Part 18. Below is a summary of each of the three major provisions.

MSHA is accepting the use of VCS in lieu of existing Part 18 requirements in its approval process for products to be used in gassy mines. Specifically, MSHA is accepting VCS that the Agency has incorporated by reference and determined are suitable for gassy mining environments and that provide protection against fire or explosion, if used in their entirety and without modification, as alternatives to the requirements in subparts B through E in Part 18. Using and accepting VCS is also consistent with the principles and policies in Circular A-119.

This final rule is incorporating by reference eight ANSI-approved VCS in their entirety and without modification. These eight VCS are ANSI 60079 series standards for explosive atmospheres. When product designers or manufacturers seek MSHA approval under Part 18, the specifications of these eight ANSI-approved VCS can be used, as applicable.

The final rule is not incorporating by reference the six VCS from the International Electrotechnical Commission (IEC) that were included in the proposed rule. This change was made due to concerns that the IEC standards may not provide sufficient protection against fire or explosions when used for electric motor-driven mine equipment and accessories in U.S. mines because the IEC standards do not contain certain U.S.-specific electrical and safety requirements that are included in the ANSI-approved VCS.

Also, unlike the proposed rule, the final rule is not restricting applicants to use only VCS after a transition period of 12 months. The final rule allows product designers and manufacturers to choose either existing Part 18 requirements or the ANSI-approved VCS when they seek approval for new products or for modification to MSHA-approved products. This change was made in response to public comments requesting more time for product designers and manufacturers to adapt their designs and equipment to the VCS specifications, as well as raising the concern that the mandatory transition to VCS would be problematic for some product manufacturers. The final rule provides more flexibility to both new applicants for product approval and current approval holders seeking product modifications.

Under this final rule, MSHA will review, in the future, more recent editions of the VCS listed in Part 18 to determine whether they can be used in their entirety and without modification for MSHA approval. Also, MSHA may review VCS not listed in Part 18 for possible future adoption.

This final rule is issued under section 508 of the Federal Mine Safety and Health Act of 1977 (Mine Act), as amended. 30 U.S.C. 957. Section 508 of the Mine Act gives the Secretary the authority to issue regulations to carry out any provision of the Mine Act.

In 2018, MSHA sought stakeholders' assistance in identifying regulations that could be repealed, replaced, or modified without reducing miners' safety or health. As a result of this solicitation, MSHA received recommendations for the Agency's product approval regulations. Specifically, stakeholders recommended that MSHA replace Part 18 requirements with VCS to provide a clearer and timelier path for approval of new technologies that could improve the health and safety of miners.

On November 19, 2020, MSHA published in the Federal Register a notice of proposed rulemaking that would revise the existing testing, evaluation, and approval requirements for electric motor-driven mine equipment and accessories intended for use in gassy mines to include VCS (85 FR 73656). MSHA proposed to incorporate by reference 14 VCS (8 approved by ANSI and 6 by IEC) in their entirety and without modification to replace, as applicable, existing approval requirements in Part 18.

During the comment period, MSHA received 20 comments from product manufacturers, safety certification companies, industry associations, a representative of a voluntary consensus standards body, the National Institute of Occupational Safety and Health (NIOSH), and private citizens. All of the public comments are available at MSHA's website at www.msha.gov and at www.regulations.gov.

The Mine Act requires MSHA to establish requirements for the technical design, construction, and testing of electrical products and to approve as “permissible” electrical equipment that meets MSHA's specifications. 30 U.S.C. 865. MSHA's requirements for product approval ensure that electrical equipment will not cause a fire or explosion if operated in hazardous atmospheres encountered in gassy mines, where, for example, methane-air mixtures are present. Before electrical equipment can be used in a gassy mine in the U.S., the equipment must first be approved for such use by MSHA. MSHA-approved equipment is affixed with an MSHA approval plate to indicate that the equipment is permitted for use in gassy mines.

MSHA approval requirements for mining or related equipment are organized by the type of equipment and are listed in different parts of 30 CFR. 2 Part 18 specifies the procedures and requirements for obtaining MSHA approval, certification, extension, or acceptance of electric motor-driven mine equipment and accessories intended for use in gassy mines. Examples of this equipment include remote control units for mining machinery, longwall mining systems, portable oxygen detectors, miner-wearable components for proximity detection systems, and powered air-purifying respirators (PAPRs).

To avoid a fire or an explosion, Part 18 requires electrical equipment to be designed in one of two ways. One method is to design intrinsically safe electrical equipment, which cannot produce a spark strong enough or temperatures sufficient to ignite hazardous gasses such as flammable methane-air mixtures. The other method is to house electrical equipment in an explosion-proof or flameproof enclosure that will withstand internal explosions of methane-air mixtures, without damage to or excessive distortion of its walls or covers and will prevent ignition of surrounding methane-air mixtures.

To market electrical equipment for use in U.S. gassy mines, product designers and manufacturers must obtain MSHA approval for these products. To obtain that approval, applicants must submit a sample of the completely assembled electrical machine or accessory, drawings and specifications of the product components, and any product-testing documentation, if available.

When MSHA receives an application for approval of a completely assembled electrical machine or accessory for use in gassy mines, MSHA reviews the application using the following general steps. MSHA first determines whether the applicant has met the technical requirements of Part 18 by examining the documents in the application package, which may include drawings, specifications, or photographs. These technical requirements, as described under subpart B of Part 18 (entitled Construction and Design Requirements ), address design and construction specifications ( e.g., quality of material, workmanship and design, electrical clearances, design of enclosures, and electrical protection of circuits and equipment). MSHA also checks the product or parts of the product against the technical requirements of Part 18, which may require disassembling and examining parts of the product for conformity to the submitted drawings and specifications.

As part of the product approval process, the product must also undergo testing and evaluation, which may include testing for explosion-proof characteristics of an enclosure and impact tests. Testing and evaluation can be conducted by MSHA or an independent laboratory, pursuant to 30 CFR 6.10, Use of independent laboratories. 3 If the applicant chooses MSHA to conduct the testing and evaluation of the product, then MSHA tests and evaluates the applicant's product to determine whether it performs according to the safety and testing requirements. Alternatively, if the applicant chooses an independent laboratory to conduct the testing and evaluation, then MSHA reviews the testing and evaluation results from the independent laboratory to determine whether the product performs according to the safety and testing requirements. MSHA will also verify the laboratory's independence and accreditation.

Once MSHA determines that the product meets all the approval requirements under Part 18 and is safe for use in gassy mines, the Agency issues an approval. The applicant then becomes an approval holder and must place an MSHA approval plate on the product to indicate that the product is permissible for use in gassy mines.

The use of the MSHA approval plate obligates the approval holder to maintain the quality of the completely assembled product according to the requirements upon which the approval was based. If an approval holder wants to modify an approved product and maintain its approval, then the approval holder must submit the proposed changes to MSHA. If the proposed changes are approved, MSHA issues either an extension of approval or a notice of acceptance of the modified product to the approval holder.

The VCS that MSHA proposed to incorporate by reference were developed or approved by voluntary consensus standards bodies through the use of voluntary consensus standards development processes with the attributes described in OMB Circular A-119. According to Circular A-119, the VCS development process includes the following attributes or elements: openness; balance of interest; due process; appeals process; and consensus. Each of the 14 VCS considered by MSHA demonstrates these attributes because they were developed by standard-setting bodies through a transparent, open, and consensus-based process.

Of the 14 VCS that MSHA considered, 6 were developed by the International Electrotechnical Commission and 8 were approved by the American National Standards Institute. This final rule refers to these as IEC VCS (or non-ANSI approved VCS) and ANSI-approved VCS. Below the two VCS bodies and their standard-development processes are discussed.

IEC is a global, not-for-profit membership organization that administers conformity assessment systems and publishes international standards used in testing and certification of devices, systems, installations, and services. IEC's international standards reflect the global consensus of technical experts who are delegated by their countries to participate in the IEC. Members are technical committee representatives, as well as experts nominated by their home countries' national committees in the areas of concern.

IEC generally develops a standard in the following manner. A proposal for a new or revised standard is generally driven by needs of specific stakeholder groups in one or several countries. During the preparatory stage, a working draft of the standard or revision is developed by an IEC committee (IEC, 2024b). The committee draft is submitted to all IEC members, including those who participate actively in IEC work, and those who have observer status only for comment and approval. Each national committee can submit its comments and then the committee members work together to reach a consensus on the technical content. Once consensus is reached among the committee members, the standard is published as an IEC international standard (IEC, 2024b).

ANSI is a non-profit organization that administers and coordinates the U.S. voluntary standards and conformity assessment system by working in close collaboration with stakeholders from industry and government to identify and develop American National Standards (ANSI, 2024b). ANSI accredits the procedures of VCS bodies including UL Solutions (UL), formerly Underwriters Laboratories, and the International Society of Automation (ISA) (ANSI, 2024c). ANSI accreditation ensures that standards developed by the VCS bodies meet the standard-development process requirements for openness, balance, consensus, and due process, and adhere to neutral oversight set by ANSI. The accredited VCS bodies are allowed to submit individual standards for approval as an American National Standard (ANSI, 2024d). For a standard to become ANSI-approved, its submission and review process must have met ANSI's requirements, and the standard must have achieved consensus (ANSI, 2024d). For example, those standards that are submitted by an ANSI-accredited VCS body like UL or ISA and are later approved by ANSI are classified as ANSI-approved standards and labeled as ANSI/UL or ANSI/ISA.

In the notice of proposed rulemaking, MSHA proposed to incorporate by reference eight ANSI-approved and six IEC VCS in their entirety and without modification, to replace existing approval criteria in Part 18 for products covered by the VCS. These VCS included:

The ANSI standards are based on the similarly numbered IEC standards. The ANSI standards include modifications of the IEC standards to account for U.S.-specific requirements (U.S. deviations). The U.S. deviations are developed by nationally recognized and vetted experts and are approved as American National Standards.

Both the IEC and ANSI 60079 series standards listed above cover a wide array of topics concerning explosive atmosphere standards. The ANSI 60079 series standards are generally based on the IEC 60079 series standards but include U.S.-specific requirements to make them compatible or consistent with U.S. safety and industry specifications or practices.

During the comment period of the notice of proposed rulemaking, MSHA received 20 comments from product manufacturers, safety certification companies, industry associations, a representative of a voluntary consensus standards body, NIOSH, and private citizens. This section presents public comments that are general in nature or crosscutting because they span multiple provisions of the proposed rule. Those comments that are specific and directly related to individual provisions are addressed in section VI, Section-by-Section Analysis.

Generally, most commenters supported MSHA's acceptance of VCS in its approval process. Some commenters, including NIOSH, Komatsu, Rosebud Mining Company, National Mining Association (NMA), Fletcher, and Alliance Coal, agreed with MSHA that adopting VCS in Part 18 would promote the use of innovative and advanced technologies that lead to improvements in mine safety and health (Document ID 0015; 0013; 0012; 0020; 0019; 0027). 4

Several other commenters stated that MSHA should expand the use of VCS beyond Part 18. MSHA received comments from NIOSH, Dräger, and an individual that the Agency should use VCS for part 22 of title 30 of the CFR, which concerns portable methane detectors (Document ID 0015; 0023; 0016). NIOSH further suggested that MSHA consider adopting VCS for various types of electrical equipment approved for use in mines. Examples include electric cap lamps under 30 CFR part 19, electric mine lamps other than standard cap lamps under 30 CFR part 20, telephones and signaling devices under 30 CFR part 23, and methane-monitoring systems under 30 CFR part 27 (Document ID 0015).

Any changes to other parts of title 30 are outside the scope of this rulemaking because the proposed rule addressed the use of VCS for product approvals only under Part 18 requirements. In future rulemakings, MSHA may address the expanded use of VCS that would be appropriate for other product approvals.

The Essential Minerals Association (EMA, formerly the Industrial Minerals Association—North America, IMA-NA) encouraged MSHA to participate actively in the VCS development processes at various VCS bodies so that the Agency can persuade other participants in the standard-setting bodies to propose changes in a standard and have those proposed changes thoroughly studied by experts and adopted if justified (Document ID 0018). MSHA agrees that active participation in a standards development process is useful and will consider participating in appropriate standards-development processes.

MSHA also received comments disapproving of MSHA's use of VCS in general and of specific non-ANSI-approved VCS for Part 18. A private citizen stated that MSHA should not use VCS because of concerns about the lack of public participation and oversight in the VCS development process (Document ID 0026). The VCS in MSHA's proposed rule, the commenter argued, were developed and set mostly by manufacturers, including entities outside of the U.S. and outside of the U.S. mining industry. In this commenter's view, these entities change and modify the VCS without any cost-benefit analysis and with little or no regard for the impact on public safety. In addition, the commenter raised a concern about limited public access to the VCS because the VCS are not free of charge. Consol Energy, Inc. (Consol) stated that MSHA should make copies of standards available to operators by negotiating licensing agreements with the VCS bodies since there may be copyright issues with providing copies (Document ID 0014).

In response, MSHA points out that, as discussed earlier, all VCS listed above were developed and approved by voluntary consensus standards bodies through transparent, open, and consensus-based processes. The standard-development processes meet the attributes described in Circular A-119—openness, balance of interest, due process, an appeals process, and consensus. Regarding VCS being updated without any cost-benefit analysis, MSHA notes that final section 18.102 incorporates by reference eight voluntary consensus standards and identifies the specific edition of each VCS. Additionally, as indicated in final section 18.103, MSHA will review updated editions of the VCS and other VCS to determine whether they can be used to provide protection against fire or explosion. Following such review and determination, MSHA will use the appropriate rulemaking process. The rulemakings that MSHA conducts will include the assessment of potential impacts including societal costs and benefits, as required by Executive Order (E.O.) 12866, as amended by E.O. 14094, and E.O. 13563. Regarding public access to the VCS, MSHA notes that the VCS being incorporated by reference in the final rule will be available to the public for review at MSHA headquarters and at MSHA's Approval and Certification Center. More information on the availability of the VCS incorporated by reference in the final rule is presented in section XI.L, Incorporation by Reference.

UL opposed MSHA's proposal to accept non-ANSI standards, such as the IEC 60079 series (Document ID 0021). This commenter stated that the non-ANSI-approved standards do not include key explosion safety requirements specific to the U.S. One example UL cited was that the IEC 60079 series permit “less robust” electrical writing methods (Document ID 0021).

After careful consideration of this comment and further review of the VCS concerning explosive atmospheres, MSHA has determined that the final rule will accept the eight ANSI-approved VCS only. In the proposed rule, given that many products conforming to the ANSI-approved and IEC VCS are broadly recognized across various industries and in other countries, MSHA considered that both ANSI-approved and IEC VCS provide an appropriate level of safety for miners and others in work environments with hazards similar to those encountered in the mining industry. However, recognizing and agreeing with the commenter that the IEC VCS do not reflect U.S. explosion safety requirements, MSHA concluded that the six IEC VCS will not provide adequate protection against fire or explosion if used in their entirety and without modification. More discussion on this point is included in section VI, Section-by Section Analysis, of this preamble.

Finally, MSHA received multiple comments regarding the Agency's approval process. Those comments generally concerned the following: (1) how the Agency's proposed acceptance of VCS affects the approval process; (2) whether the Agency should approve as “permissible” products that are tested by third-party entities, such as Nationally Recognized Test Laboratories (NRTLs) or other product-certification bodies; (3) whether the Agency should forgo the MSHA approval process and automatically accept products that are certified under VCS, and (4) whether the Agency should mandate third-party certification.

First, commenters questioned how the Agency's acceptance of VCS would affect the approval process. NIOSH, Fletcher, Matrix Design Group (hereafter referred to as “Matrix”), and KH Controls requested clarification on how MSHA's proposed incorporation by reference of the VCS would affect the Agency's product approval process (Document ID 0015; 0019; 0024; 0025). Additionally, a private citizen expressed concern that this rulemaking would remove the MSHA approval process (Document ID 0026). Consol stated that they believe the rule does not address protracted delays caused by the current approval process and that under the proposed rule the approval will continue to follow the same approval process which results in delays and discourages manufacturers from seeking approval (Document ID 0014).

MSHA clarifies that the final rule does not remove the MSHA approval process. MSHA will continue to review and approve as “permissible” all electrical equipment used in gassy mines. As explained above, MSHA's approval process (as described in section IV, Background, of this preamble) will remain unchanged under the final rule and will continue to ensure that electrical equipment used in gassy mines can be safely operated by miners in hazardous environments. This means that, under the final rule, all product designers and manufacturers seeking MSHA approval must submit their application package for product approval, as specified in 30 CFR part 18. MSHA will continue to determine whether the electrical equipment is safe for use in gassy mines.

Second, MSHA received comments regarding whether to approve products that are tested by third-party entities, such as NRTLs or other product-certification bodies (Document ID 0010; 0015). Specifically, NIOSH commented that while MSHA must approve equipment, the mining community has expressed a strong preference for MSHA to accept testing and certification of equipment by NRTLs as the basis for the approval (Document ID 0015). 5

MSHA notes that the Agency already accepts testing and evaluation by independent laboratories, including NRTLs, under its existing standards and approval process. As stated in section IV, Background, of this preamble, MSHA's existing approval process includes product testing and evaluation by either MSHA or an independent laboratory chosen by the applicant. Under 30 CFR 6.10, Use of independent laboratories, the Agency accepts testing and evaluation performed by an independent laboratory for purposes of MSHA product approval, provided that MSHA receives the information required by the application. Applicants that choose to use an independent laboratory for testing or evaluation must submit the test or evaluation results to MSHA for review, along with written evidence of the laboratory's independence and current recognition by an accrediting organization. MSHA will continue to accept, as part of a complete approval application under Part 18, testing and evaluation results from NRTLs or other independent laboratories.

Third, some commenters recommended that the Agency forgo the MSHA approval process when products are already certified under VCS (Document ID 0019; 0025; 0013). Fletcher expressed the opinion that certification to a listed VCS should be sufficient for MSHA approval (Document ID 0019). Matrix and Komatsu discussed the IEC Standards Relating to Equipment for Use in Explosive Atmospheres (IECEx) and the associated IEC certification system (IECEx System) (Document ID 0025, 0013). 6 Matrix recommended that MSHA accept an approval certificate from accredited, independent IECEx Certification Bodies (ExCBs), under the IECEx System (Document ID 0025). Komatsu commented that, when more confidence is obtained in the IECEx scheme, MSHA should consider acceptance of the IECEx certification, removing the need for additional MSHA approvals (Document ID 0013).

MSHA does not automatically approve products that have laboratory approval certificates from certifying laboratories. Under the Mine Act, MSHA is responsible for safety standards for the protection of life and prevention of injuries in coal and other mines. 30 U.S.C. 811. To ensure safety, MSHA maintains oversight of the approval process. After MSHA determines that the product meets all the approval requirements and determines that the product is safe for use in gassy mines, the Agency will issue an approval and authorize the use of an MSHA approval plate.

Fourth, MSHA received a comment regarding whether to mandate third-party certification. A private citizen stated that the typical costs of obtaining VCS certification, depending on the complexity of the component or machine, is extremely excessive, and therefore, MSHA should not require VCS certification for approval (Document ID 0026).

MSHA does not and will not require VCS certification by a third-party laboratory for approvals. MSHA understands that some manufacturers have no intention to sell their products outside the U.S. mining industry or may be concerned with the costs of VCS certification in addition to the costs associated with MSHA approval. Under the final rule, when an application relies on the incorporated VCS as the basis for approval, VCS certification by a third-party laboratory is not mandated.

One definition is modified and two new definitions are added in final § 18.2, as in the proposed rule. MSHA received no comments on the three proposed definitions: permissible equipment, voluntary consensus standard, and voluntary consensus standards body.

Under the final rule, the term permissible equipment is modified to mean “a completely assembled electrical machine or accessory for which an approval has been issued.” The reference to the Mining Enforcement and Safety Administration (MESA) is removed from the existing definition. Because MESA and all of its responsibilities were transferred to MSHA in 1978 under the Mine Act, the reference to MESA is no longer necessary (43 FR 12314, March 24, 1978).

Under the final rule, the new term voluntary consensus standard means “a safety standard that:

(1) Is developed or adopted by a voluntary consensus standards body; and

(2) Prescribes safety requirements applicable to equipment for which applicants are seeking approval, certification, extension, or acceptance under Part 18.”

Under the final rule, the new term v oluntary consensus standards body means “a domestic or international organization that plans, develops, establishes, or coordinates voluntary consensus standards using agreed-upon procedures that are consistent with the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 3710) and the Office of Management and Budget's Circular A-119 (Jan. 27, 2016).” Under Circular A-119, a voluntary consensus standards body plans, develops, establishes, or coordinates voluntary consensus standards using a voluntary consensus standards development process that includes the following attributes or elements: openness, balance of interest, due process, appeals process, and consensus. This type of standards body typically adopts, publishes, and makes the VCS it adopts available to the public. Lastly, the voluntary consensus standards body must maintain each voluntary consensus standard through a schedule of review.

Final paragraph (e) of § 18.6 removes the existing requirement that each drawing an applicant submits under Part 18 include a warning stating that any changes in design must be authorized by MSHA before the changes are made to approved equipment. Final paragraph (e) of § 18.6 is unchanged from the proposal. MSHA did not receive any comments on this proposed change.

MSHA has determined that the warning on each drawing is unnecessary since MSHA notifies successful applicants in its approval letters that approval holders cannot make changes to designs without MSHA approval. Furthermore, the Agency communicates with applicants during the approval process and ensures that they fully understand approval holders' responsibility to notify MSHA of changes to approved equipment.

Under the final rule, paragraph (c) of § 18.15 is revised to clarify the requirements for an application for a formal extension of approval or certification, or modification of an existing approval. In the proposed rule, MSHA would issue an approval if the changes in the equipment or component met: (1) the requirements applied to the last approval, certification, or formal extension; or (2) the VCS requirements listed in Part 18, as applicable. Under the proposed rule, any approval holder who chose to use VCS requirements for modifications of an existing approval could no longer go back and use the requirements in subparts B through E of Part 18 for future modifications. However, the final rule allows the approval holder to choose either existing Part 18 requirements or VCS requirements for each modification of an existing approval, irrespective of the last approval, certification, or formal extension. This means that under the final rule, for any modification of an existing approval, approval holders can choose either the existing Part 18 requirements or VCS requirements.

MSHA received two comments on this proposed rule language relating to the timing of the approval. The NMA and Matrix recommended that MSHA approve applications for a formal extension of approval or certification, or for modifications of an existing approval, within 30 days (Document ID 0020, 0025).

As stated previously, MSHA's approval process will remain unchanged under the final rule and will continue to ensure that electrical equipment used in gassy mines can be safely operated by miners in hazardous environments. However, MSHA revised the final § 18.15 language to conform with the final rule, which allows the approval holder to choose either existing Part 18 requirements or VCS requirements for each modification of an existing approval.

Like the proposed rule, the final rule adds a new subpart entitled “subpart F Voluntary Consensus Standards.” The new subpart F, consisting of three sections—§§ 18.101 through 18.103—lays out how MSHA will generally accept, use, review, and update VCS, along with a list of specific VCS incorporated by reference in this final rule.

Final § 18.101 is changed from the proposal to allow product designers and manufacturers to choose either existing Part 18 requirements or the listed VCS requirements. Section 18.101 sets forth how MSHA will accept and use VCS. In the proposed rule, paragraph (a) included MSHA's intent to replace the requirements in subparts B through E of Part 18 with VCS in their entirety and without modification. In proposed paragraph (b), a transition period of 12 months was provided, during which product designers and manufacturers seeking MSHA approval would be allowed to use either existing Part 18 requirements or VCS requirements. Once the transition period ended, the use of VCS would have been required under proposed paragraph (c).

In the final rule, final paragraphs (a) and (b) differ from the proposed rule to allow the use of either the VCS or the existing Part 18 requirements. Consequently, there is no 12-month transition period to using VCS only, so proposed paragraph (c) is not included in the final rule. Under the final rule, product designers and manufacturers can choose either existing Part 18 requirements or VCS requirements for MSHA approval because the final rule includes no requirement to transition to the use of only VCS for MSHA approvals. Under the final rule, the use of VCS is not and will not be mandatory.

As described in section V, Comments Received on the Proposed Rule, most commenters supported MSHA's acceptance of VCS in its approval process. Commenters, including NIOSH, Komatsu, Rosebud Mining Company, NMA, Fletcher, and Alliance Coal, agreed with MSHA that adopting VCS in Part 18 would promote the use of innovative and advanced technologies that lead to improvements in mine safety and health (Document ID 0015; 0013; 0012; 0020; 0019; 0027). MSHA agrees with these commenters.

Under final paragraph (a) of § 18.101, the VCS that the Agency incorporates by reference and determines are suitable for gassy mining environments and provide protection against fire or explosion may be used as alternatives to the requirements in subparts B through E in Part 18 if used in their entirety and without modification. Using VCS is consistent with the principles and policies in Circular A-119. MSHA's acceptance of VCS will provide more mining product choices to mine operators and miners.

Final paragraph (b) of § 18.101 allows manufacturers to choose between the requirements in subpart B through E or the requirements of the listed VCS as the basis for approvals at all times. By contrast, the proposed rule allowed manufacturers to choose between the requirements of the last approval or the listed VCS requirements only during a limited transition period of 12 months from the effective date, after which the use of listed VCS was mandatory for new MSHA approval applications.

Several commenters, including Consol Energy, Inc. (Consol), NIOSH, and NMA, stated that the proposed 1-year transition period from Part 18 requirements to VCS for new applications should be extended (Document ID 0014; 0015; 0020). KH Controls recommended that the transition period be extended to 3 years (Document ID 0024). NIOSH suggested that MSHA consider accepting either the listed VCS or Part 18 requirements for 5 years or more for new applications, and indefinitely for modifications (Document ID 0015). NIOSH stated that the 1-year transition period to mandatory use of the listed VCS may be problematic for some manufacturers and that businesses involved in rebuilding and overhauling equipment could be harmed (Document ID 0015). NIOSH further commented that a potential issue arises when a small manufacturer needs to make changes to a product due to component obsolescence (Document ID 0015). If the changes are extensive, they may prefer to submit a new design. However, if the manufacturer already understands and builds their equipment to the Part 18 requirements, they may not have the resources or the willingness to fully transition their product engineering to the listed VCS and potentially redesign their products for such limited applications (Document ID 0015).

Consol, with agreement by NMA, expressed concern that after the 1-year transition period, some manufacturers may be forced to leave the mining market because they do not believe it is economically feasible to change-over the equipment to comply with the listed VCS (Document ID 0014; 0020). The commenter stated that there are too few manufacturers in the market already and believes that the proposed rule should be modified to permit use of the previous approval requirements after the transition period (Document ID 0014).

MSHA agrees with the commenters who stated that the mandatory transition to the VCS-only requirements could be problematic for certain manufacturers and product developers. Under the proposal, some product developers would have to rebuild and overhaul equipment to meet the listed VCS only, while other manufacturers may not have sufficient resources to transition their engineering to the listed VCS only. In response to these concerns, final paragraph (b) allows manufacturers to choose between the requirements in subparts B through E or the requirements of the listed VCS, if the listed VCS apply, as the basis for approvals starting on the effective date. Allowing both the existing Part 18 and VCS requirements eliminates the need for a mandatory transition period. Under the final rule, there is no transition period and manufacturers can decide which requirements, the requirements in subparts B through E or the requirements of the listed VCS, would best fit their business needs.

Under final paragraph (b), new applications for approval may meet either subparts B through E requirements, or the requirements of the VCS listed in § 18.102. Also, applications for a modification of an existing approval or certification may meet either subparts B through E requirements, or the requirements of the VCS listed in § 18.102.

Final paragraph (b)(2) contains non-substantive changes from the proposal. It includes the specific Group and Levels of Protection provisions, which are unchanged from proposed paragraphs 18.102(b)(2) and (b)(3). The specified Group and Levels of Protection to be used from each of the VCS listed in final paragraph 18.102 are suitable for gassy mining environments and will protect against fire or explosion hazards. MSHA has determined that the VCS which the Agency has incorporated by reference with the Group and Levels of Protection for hazardous locations designated as Group I, Zone 0, and highest Levels of Protection, “ma,” “da,” and “ia,” listed in final paragraph (b)(2) can be used as alternatives to requirements in subparts B through E of Part 18. The Groups and Zones for hazardous locations and Levels of Protection in the VCS are explained in the following paragraphs.

Several commenters, including manufacturers, NIOSH, a safety testing laboratory, and a coal mine operator stated that the Group and Levels of Protection for the VCS proposed by MSHA should be expanded to include other Group designations and Levels of Protection in addition to hazardous locations designated as Group I, Zone 0, and highest Levels of Protection, “ma,” “da,” and “ia” (Document ID 0005; 0011; 0013; 0015; 0017; 0024; 0025; 0027).

In the U.S., the hazardous location classification system is defined by the National Fire Protection Association® (NFPA®) 70®, NEC® (2023). The NFPA 70® NEC® Hazardous Locations Groups defines Group I as mines susceptible to firedamp ( i.e., flammable mixture of gases naturally occurring in a mine). Also, NFPA 70® NEC® Hazardous Locations defines Zone 0 as an area where ignitable concentrations of flammable gases or vapors are present continuously or for long periods of time (NFPA®, 2023). In each instance, the Group I mines and Zone 0 areas are designated as the most hazardous when measuring explosive atmospheres.

The “ma” designation is the highest Level of Protection against explosion protection for encapsulation (ANSI/UL, 2015b). Encapsulation of electrical equipment is a protection principle that encloses the equipment to prevent the potentially explosive atmosphere from reaching the ignition source (ANSI/UL 2015a).

The “da” designation is the highest Level of Protection for a flameproof enclosure (ANSI, 2015b). The flameproof classification is a type of protection in which the machine parts or components that can ignite in an explosive atmosphere are placed within an enclosure that can withstand the force created and pressure developed during an internal explosion (NFPA®, 2023). Therefore, if an explosion should occur inside of the enclosure, it will either be contained within, or have a flame path that will arrest the propagation of the explosion. This reduces the risk of igniting an external explosive atmosphere.

The “ia” designation offers the highest Level of Protection for intrinsic safety and is generally considered as being adequately safe for use in the most hazardous locations (Zone 0) because the possibility of two “faults” is in the safety assessment (ANSI, 2013). Intrinsic safety is an explosion protection concept in which the electrical energy within the equipment is restricted to a level which is below what may cause an ignition or to limit the heating of the surface of the hazardous area equipment (NFPA®, 2023).

Eickhoff Bergbautechnik and NIOSH both noted that the highest Levels of Protection are usually only applied to intrinsically safe methane monitors, cap lamps, and other equipment which need to be operated even in the presence of an explosive methane atmosphere (Document ID 0011; 0015). Eickhoff Bergbautechnik also noted that a typical intrinsically safe product intended for use in underground mining has the middle Level of Protection, “ib,” and must be switched off when an explosive atmosphere arises (Document ID 0011). Matrix stated that underground coal mines do not operate continuously in Zone 0 atmospheres and noted that mines are more likely described as Zone 1 or sometimes Zone 2 (Document ID 0025). 7 Matrix also suggested that, in addition to Zone 1, requiring middle Levels of Protection, MSHA should also include Zone 2, requiring the lowest Levels of Protection for some of the VCS.

In response to the commenters above, MSHA believes that “ma,” “da,” and “ia” Levels of Protection, which are suitable for Group I, Zone 0 hazardous areas, for the listed VCS are appropriate. MSHA has determined, based on NIOSH research, that to provide at least the same degree of protection as the existing Part 18 requirements, Group I, Zone 0 required Levels of Protection are suitable and will not result in a diminution of safety. As discussed in the proposed rule, researchers at NIOSH presented a paper to the Institute of Electrical and Electronics Engineers' (IEEE) Industry Applications Society titled “Intrinsically Safe Systems: Equivalency of International Standards Compared to U.S. Mining Approval Criteria.”  8 The researchers concluded that the relative Levels of Protection afforded to miners by the application of the ANSI/ISA 60079 two-fault Intrinsically Safe (IS) standard is a safe alternative to MSHA's requirements when such electrical equipment is installed in mines. 9 They also concluded that the use of such equipment would provide at least an equivalent level of safety as that provided by equipment approved under MSHA criteria. 10 MSHA believes that Levels of Protection consistent with Zones 1 and 2 provide less protection than the existing Part 18 requirements. Therefore, in this final rule, MSHA is allowing the use of the ANSI-approved VCS with the Group I, Zone 0 required Levels of Protection for intrinsic safety, as proposed.

Komatsu proposed extending the adoption of the 60079-1 standard for flameproof enclosures to include equipment “db,” suitable for Zone 1 (Document ID 0013). The commenter stated flameproof equipment currently approved to MSHA standards would not meet the criteria to operate in Zone 0. The commenter also stated that accepting Level of Protection “db” would not compromise safety compared to what is currently enforced. The commenter explained that 30 CFR 27.24 requires that all equipment shut down automatically at a methane concentration of 2.0 volume percent and at all higher concentrations of methane. The commenter stated that this ensures that equipment will not be operating in a Zone 0 environment with methane present for an extended period.

MSHA considered the commenter's statement that flameproof equipment currently approved to MSHA standards would not meet the criteria to operate in Zone 0, thus allowing Level of Protection “db”; however, such flameproof enclosures are beyond the scope of this rulemaking. In 2006, MSHA evaluated a comparison of enclosures certified as flameproof under IEC 60079-0, Fourth Edition, 2004-01, and IEC 60079-1, Fifth Edition, 2003-11, versus MSHA certified and approved explosion-proof products (71 FR 28581). (See 30 CFR 6.30). MSHA determined that flameproof equipment approved to IEC 60079-0 and IEC 60079-1 “db” must be modified to provide the same Level of Protection as the MSHA flameproof equipment. This equipment must meet additional requirements such as design requirements limiting the length of an enclosure and external surface temperature limits in 30 CFR 7.10(c)(1) for motors and in 30 CFR 18.6(a)(3) for enclosures. Accordingly, MSHA is not including Levels of Protection “db” and “dc” in this rule. The Agency will consider flameproof enclosures meeting the listed VCS using the Zone 0, “da” Level of Protection as providing at least an equivalent level of safety as that provided by equipment approved under the MSHA criteria in Part 18. Level of Protection “da” is only applicable to catalytic sensors of portable combustible gas detectors (Intertek, 2020).

NIOSH stated that MSHA should consider including language in the rule that states that the middle Levels of Protection for VCS are acceptable, subject to additional ventilation monitoring with integrated power cutoff or other supplementary safety measures acceptable to MSHA (Document ID 0015). NIOSH further recommended that the additional measures should be included in the MSHA-approved ventilation plan.

In response to NIOSH suggesting that Zone 1 Levels of Protection may be appropriate under certain circumstances, and that Zone 1 Levels of Protection for certain machinery would only be appropriate if changes to mines' ventilation plans were made and that additional conditions of use would be required for the machinery, MSHA believes that implementing NIOSH's recommendations would require changes to 30 CFR part 75 and possibly other MSHA standards, which is outside the scope of this rulemaking. Therefore, MSHA will continue to require the highest Levels of Protection, “ma,” “da,” and “ia” for the VCS incorporated by reference in Part 18.

Paragraph (c) of § 18.101 of the proposed rule is removed. To provide manufacturers flexibility to choose the best option for their needs, this final rule removes mandatory use of listed VCS for applicable components. As a result, paragraph (c) of § 18.101 is no longer necessary and is removed.

Final § 18.102 incorporates by reference eight ANSI-approved VCS. MSHA determined that the VCS listed in § 18.102 are suitable for gassy mining environments and provide protection against fire or explosion hazards if used in their entirety and without modification, in lieu of the requirements in subparts B through E of this part. The non-ANSI-approved VCS in the proposal are excluded.

Final paragraphs (a)(1) through (b)(6) contain non-substantive edits to the titles of the ANSI-approved VCS and clarify that the VCS must be used in in accordance with the Types of Protection and Levels of Protection in § 18.101. In this IBR section, each standard name is shown exactly as it appears on the cover of the standard. 11

Also, final paragraph (b) lists the name “UL Solutions” instead of “UL LLC,” which was in the proposed rule. This change is made to reflect the company's name change in 2022. Proposed paragraph (b)(4) has been redesignated as final Note 1 to § 18.102 and edited for clarity from the proposal because it only provides the public with information on obtaining copies of the listed VCS from ANSI. ANSI is an additional source for obtaining copies of the VCS in Part 18.

MSHA received multiple comments related to the use of and differences between ANSI-approved VCS and non-ANSI-approved VCS ( i.e., IEC VCS). Some commenters, including manufacturers, mine operators, a trade association, and a private citizen, supported MSHA's proposal to incorporate by reference both ANSI-approved and IEC VCS (Document ID 0011; 0012; 0014; 0020; 0023; 0022; 0027). Eickhoff Bergbautechnik stated that by accepting these established standards, MSHA could enhance the efficiency and effectiveness of its approval process (Document ID 0011). Rosebud Mining Company stated that many companies have equipment approved under ANSI or IEC standards that would meet the hazard rating for use in underground coal mines but currently are not able to be used in mines due to the lack of MSHA approval under 30 CFR (Document ID 0012). They also stated that, with MSHA's acceptance of the proposed VCS (both ANSI and IEC standards), a significantly larger amount of equipment and technologies would be available for use in underground mining (Document ID 0012). Consol stated that manufacturers have become increasingly reluctant to seek approval of equipment because of the cost of MSHA's approval process (Document ID 0014). The NMA stated that it is likely that devices manufactured to be intrinsically safe under both MSHA-unique standards and VCS would incur additional costs because the manufacturing process would have to accommodate both designs. These costs would be avoided if a common standard were used (Document ID 0020).

The NMA stated that Australia, New Zealand, Canada, and South Africa allow miners and mine operators to use devices and equipment not currently approved in the U.S. but that have been evaluated as safe for use in underground gassy mines in those countries using the IEC standards (Document ID 0020). NMA gave an example that miners working at operations outside the U.S. are currently using PAPRs evaluated under VCS from IEC, ANSI, UL, and ATEX, and because of this MSHA should accept IEC VCS so that U.S. miners may use these PAPRs as well (Document ID 0020). 12 Dräger stated that its products are currently used in coal mining operations outside of the U.S., all of which recognize the proposed VCS (Document ID 0023). This commenter stated that they are unaware of a product-related incident due to any gap in the protection stipulated by the proposed VCS (Document ID 0023). Dräger further stated that, due to the nature of its products' use in mining and other hazardous applications such as firefighting, and the products' unique approval requirements, they have extensive experience with different types of explosion protection including intrinsic safety. Based on this experience, Dräger agreed that the proposed VCS would offer an equal level of safety and protection to MSHA's requirements, since the VCS undergo regular revision cycles, as well as new requirements based on technological advancements (Document ID 0023). A private citizen supported the use of the proposed VCS if the VCS are equally safe compared to existing MSHA requirements (Document ID 0022).

However, a commenter from UL, which publishes the ANSI/UL 60079 series of VCS, stated that they do not support MSHA's inclusion of non-ANSI standards, such as the IEC 60079 series (Document ID 0021). The commenter stated that the non-ANSI-approved standards under the IECEx System do not reflect key U.S. explosion safety requirements such as:

(1) The applicable requirements related to risk of fire, electric shock, and injury to persons: the IEC 60079 series permits self-declaration to these requirements, while the ANSI/UL 60079 series requires third-party declaration;

(2) Wiring methods: the IEC 60079 series permits less robust wiring methods compared to the ANSI/UL 60079 series; and

(3) Production control: the IEC 60079 series permits production control at a frequency of only every 18 months compared to the ANSI/UL 60079 series, which requires more frequent production control.

For UL's comment on non-ANSI-approved standards and their first example regarding declaration to the requirements of risk of fire, electric shock, and injury to persons, MSHA agrees that several of the IEC standards do not require third-party verification of compliance with relevant industrial standards. The ANSI versions require third-party verification of compliance, which MSHA believes is a key explosion safety requirement.

Regarding UL's second example about wiring methods, MSHA also agrees with the commenter, and found that most national differences between the ANSI/UL 60079 series and the IEC 60079 series are based on `national regulations,' where the IEC lacks alignment with specific requirements of the National Electrical Code®, ANSI/NFPA® 70 (NEC®), which is a U.S. standard for safe electrical design, installation, and inspection to protect people and property from electrical hazards. The IEC 60079 series wiring methods does not align with NEC® requirements.

Regarding UL's third example about production control, MSHA agrees that the IECEx scheme, which uses the IEC standards, mandates quality audits every 18 months, while the OSHA NRTL program, which specifies the ANSI standards, requires “no fewer than four (4) factory surveillance visits per year at manufacturing facilities.” MSHA will continue to apply the Quality Assurance requirements mandated in 30 CFR parts 6 and 18 for MSHA-approved equipment that is evaluated to the VCS.

The final rule supports the introduction of existing equipment that manufacturers have already designed to acceptable VCS without redesigning those products to meet certain MSHA-unique requirements in Part 18. The Agency also accepts testing and evaluation performed by an independent laboratory for purposes of MSHA product approval through existing regulations under § 6.10. Consequently, MSHA agrees with commenters that stated both the ANSI-approved and the non-ANSI-approved VCS offer advantages such as enhancing the efficiency and effectiveness of the approval process, as well as allowing a greater amount of equipment and technologies to be available for use in U.S. gassy mining environments. However, MSHA also agrees with UL that the non-ANSI-approved standards do not reflect certain U.S. explosion safety requirements, since the development and approval of IEC standards differ from that of ANSI standards. The 60079 series ANSI-approved standards are based on IEC-developed standards; however, unlike the IEC standards, the 60079 series ANSI-approved standards include U.S.-specific adaptations to make them compatible with U.S. safety and industry practices. The IEC standards do not completely align with U.S. electrical safety practices. ANSI-approved standards are domestic VCS that establish quality and performance specifications for products, processes, personnel, and systems, and also typically include design and build requirements to ensure consistency of equipment from various manufacturers for specific use in the U.S.

Electrical testing and ratings between ANSI and IEC generally are not the same or equivalent. IEC equipment may not pass the equivalent ANSI test, and vice versa, due to these differences. For example, ANSI and IEC differ in their approach to temperature rise testing, with higher or lower temperature restrictions required between ANSI and the IEC standards. Another example is enclosure types that do not compare among ANSI and IEC standards. The enclosure ratings used with ANSI standards do not compare directly to Ingress Protection ratings in IEC standards.

MSHA recognizes that there can be safety and compatibility issues between ANSI-approved and non-ANSI-approved standards (BSEE, 2018). MSHA has not found such safety and compatibility issues between the existing Part 18 approval requirements and the ANSI-approved VCS included in this final rule. For instance, ANSI-approved electrical standards include general compliance with NEC® requirements, as described in the scope of the standards. The ANSI-approved standards dictate how the equipment must be installed, based on the NEC®. In comparison, installation of equipment and components meeting non-ANSI-approved IEC standards must be performed in accordance with IEC 60079-14, which is not based on the NEC®. U.S. mine electricians work with the NEC®, American Wire Gauge (AWG) sizing (the accepted standard in North America to denote electrically conducting wire sizes), and U.S. electrical system compatible components. U.S. mine electricians may not have sufficient electrotechnical knowledge and training on the non-ANSI-approved standards. However, the Part 18 approval for a machine or system will dictate the interconnection of certified components that mine electricians must follow.

Another example is that non-ANSI-approved standards use metric/European wire gauges with compatible circuit breakers, which are not the same as U.S.-based AWG wire sizing and circuit breakers. MSHA is aware that mixing different wire gauges and circuit breakers could lead to inadequate overcurrent protection and increase the risk of a mine fire or explosion (Fowler and Miles, 2009). Some ANSI-approved standards have allowable temperature rises that are higher or lower than the non-ANSI-approved standards for different types of electrical contacts, leading to compatibility issues (Fuhrmann et al., 2014; Sim, J.H., 2007). Consequently, interconnecting components approved to ANSI-approved and non-ANSI-approved standards may create an electrical or fire hazard. A mine electrician may believe that they are connecting compatible components; however, one component could meet the testing requirements of an ANSI-approved VCS and an interconnected component could meet the testing requirements of a non-ANSI-approved VCS. In this example, it is possible for one or both of the components to fail because of issues with compatibility, causing fire, explosion, or electric shock hazards for miners.

Based on these issues, MSHA agrees with UL that the IEC standards do not consider U.S. explosion safety requirements, and thus do not provide adequate protection if used in their entirety and without modification in U.S. mining environments.

In addition, NIOSH recommended that MSHA accept the US-adopted version of the IEC standard as an alternative to the MSHA criteria for 2-fault intrinsic safety (Document ID 0015). MSHA understands NIOSH's reference to “US-adopted version of the IEC standard” to mean the ANSI 60079 series of VCS. Therefore, MSHA agrees with NIOSH that the US-adopted version of the IEC standard should be accepted as an alternative to the MSHA criteria for 2-fault intrinsic safety because it provides an equivalent Level of Protection.

In agreement with UL and NIOSH, MSHA will only accept the ANSI-approved VCS in this final rule. The list of VCS that MSHA is incorporating by reference in final paragraphs (a) and (b) of §  18.102 does not include the IEC VCS that was in the proposed rule.

MSHA received comments from manufacturers and EMA regarding other standards that the Agency should consider as a VCS for incorporation by reference (Document ID 0010; 0013; 0016; 0019; 0018; 0020; 0023). MSA Safety, a manufacturer of safety products, recommended that the gas detection performance standards, such as ANSI/UL 60079-29-1, ANSI/FM 60079-29-1, IEC 60079-29-1, and ANSI/UL 121303, be added to the VCS list in § 18.102 (Document ID 0010). Komatsu recommended that MSHA consider adopting IEC 60079-7 and UL 60079-7 (Document ID 0013). Fletcher and NMA suggested that MSHA accept ATEX certified equipment and components (Document ID 0019; 0020). EMA requested that Factory Mutual (FM), an insurance company and testing laboratory for electrical equipment, be considered as a VCS, especially for the following testing standards: FM 3600, 3610, 3611, 3613 and 3615 (Document ID 0018).

MSHA has determined that some of these VCS, such as the gas detection performance standards in ANSI/FM 60079-29-1 and the ANSI/UL 121303 standards, are outside the scope of this final rule because the VCS are not applicable to Part 18 product approvals; they are related to 30 CFR parts 22 and 75. As discussed in section VI.D.3, Section 18.103—Review and update of applicable voluntary consensus standards, MSHA may consider incorporating by reference other VCS applicable to other MSHA product approval parts in future rulemakings.

MSHA analyzed IEC 60079-7 and UL 60079-7 and determined that these standards provide a Level of Protection for hazardous atmospheres encountered in gassy mines that is less protective than the Levels of Protection the Agency requires for VCS. The 60079-7 standard, “Increased Safety,” is for products in which electrical arcs and sparks do not occur in normal service (and in specific abnormal conditions) and in which surface temperatures are controlled below incendive values. Increased Safety is achieved by enhancing insulation values and creepage and clearance distances above those required for normal service, thus providing a safety factor against accidental breakdown. This protection is not as rigorous as the protection techniques that MSHA currently accepts; the enclosures are not as robust as MSHA-certified explosion-proof enclosures with circuits not considered as intrinsically safe. Furthermore, the final rule includes VCS that provide the highest level of protection ( e.g., “ia”, “da”, and “ma”); Increased Safety is not one of those techniques. The Levels of Protection required by the VCS are discussed in § 18.101. TIEC 60079-7 and UL 60079-7 do not meet the Levels of Protection required by Part 18.

MSHA understands that FM is a third-party global testing and certification agency focused on property loss prevention for use in commercial and industrial facilities. FM 3600, FM 3610, FM 3611, FM 3613, and FM 3615 do not appear to address the level of protection suitable for gassy mining environments for U.S. mines. The Scope of each of these documents note that they are intended for equipment for use in “Classes I, II & III, Division 1 hazardous (classified) locations as defined in Article 500 of the NEC®.” Areas where permissibility is required in gassy underground mines are not included in those locations.

MSHA also understands that ATEX is a mandatory directive that requires products used in hazardous atmospheres to comply with specified requirements within the European Union (Health and Safety Executive, n.d.). ATEX is intended for use in the European Union. MSHA has determined that it would not be applicable to U.S.-based product approvals because it does not address U.S. national standards.

In final § 18.103, MSHA will review more recent editions of VCS and additional VCS that could lead to the use of innovative and advanced technologies in U.S. mines. Final § 18.103 is similar to the proposed rule, with minor changes in paragraphs (a) through (c) to align with §  18.101. The language in paragraphs (a) and (b) are revised because the final rule does not replace the Part 18 requirements in subparts B through E with VCS.

Consol supported proposed § 18.103 concerning the Agency's commitment to review, update, and possibly expand the list of VCS in § 18.102 (Document ID 0014). EMA stated that for updates of applicable VCS, MSHA should do so in a rulemaking process with notice and comment rulemaking procedures equivalent to the procedures utilized to implement the original incorporation by reference. The commenter stated that stakeholders may not have participated in the development of an updated VCS and the MSHA rulemaking procedure may be the only opportunity they have to provide input on a proposed incorporation by reference (Document ID 0018).

MSHA is aware that manufacturers of approved products currently used in mines may wish to design and manufacture products to more recent versions of MSHA-accepted VCS to keep products up-to-date for improvements and marketability. Under final paragraph (a) of § 18.103, MSHA will review more recent editions of the listed VCS and determine whether to use them to ensure timely updating of the VCS listed in § 18.102. Under final paragraph (b) of § 18.103, MSHA will review other VCS that are not listed in § 18.102 and determine whether they are suitable for gassy mining environments and provide protection against fire and explosion hazards. Under final paragraph (c) of § 18.103, MSHA will use the appropriate rulemaking process to update the list of VCS approved for incorporation by reference in lieu of approval requirements in subparts B through E in Part 18. MSHA may also remove a standard from the list in final § 18.102 if it is withdrawn by a voluntary consensus standards body or for other reasons.

Under the final rule, paragraph (b) of § 74.5 and paragraph (d) of § 74.11 are unchanged from the proposal. In the proposal, MSHA proposed conforming amendments to Coal Mine Dust Sampling Devices in existing part 74 based on the proposed changes in Part 18. Specifically, MSHA proposed to change cross-references in existing paragraph (b) of § 74.5 and paragraph (d) of § 74.11 for evaluation and testing for permissibility of Coal Mine Dust Sampling Devices from § 18.68 of Part 18. This change in part 74 would conform to the proposed changes in Part 18 and would allow the use of MSHA-designated VCS for the approval of coal mine dust sampling devices.

MSHA received no comments on the proposed changes. The final rule makes technical changes to 30 CFR part 74 regarding the approval requirements for Coal Mine Dust Sampling Devices to conform to the proposed changes in Part 18, which will allow the use of MSHA-designated VCS for the approval of coal mine dust sampling devices.

MSHA's Regulatory Impact Analysis assesses the costs and benefits of this final rule. Executive Order (E.O.) 12866, as amended by E.O. 14094, and E.O. 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). 13

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

The EPA is responding to a set of comments that together raise a question regarding the method by which the Agency developed the Good Neighbor Plan (88 FR 36654; June 5, 2023). Namely: would the conclusions the EPA reached regarding states' obligations under CAA section 110(a)(2)(D)(i)(I) for the 2015 ozone NAAQS have been different, had the rule been promulgated for, or if it covered, a smaller or different group of states than the 23 states that were included in that the rule? In short, for reasons that are provided in the record of the Good Neighbor Plan itself and elaborated upon in this document, the answer to that question is no. The EPA applied its 4-step interstate transport analytical framework in the Good Neighbor Plan to determine each included state's obligations. That framework, which accounts for the multistate “collective contribution” nature of ozone problems throughout the United States, nonetheless defines the amount of emissions from each state that constitutes “significant contribution to nonattainment or interference with maintenance” of the NAAQS in other states and implements programs to prohibit those emissions through federal implementation plans (FIPs) promulgated for each state accordingly. As the Good Neighbor Plan itself indicated, the EPA's methodology is designed to be applicable in any state that may become subject to a federal plan to address its “significant contribution” to other states' ozone problems for the 2015 ozone NAAQS; it provides an equitable and efficient solution to a “thorny causation problem,” EME Homer City, 572 U.S. 489, 514 (2014), by holding any linked state's largest industrial NO X -emitting sources to widely achievable emissions levels, and ensures fairness among states by not being dependent on the order in which they are addressed.

By issuing this document, the Agency is addressing a particular issue that the U.S. Supreme Court preliminarily found had been raised by commenters with reasonable specificity, but which the Court considered the Agency had likely failed to adequately address when it originally promulgated the rule. See Ohio v. EPA, 144 S. Ct. 2040 (2024) (granting applications to stay enforcement of the Good Neighbor Plan pending judicial review). This document summarizes the relevant comments identified by the Supreme Court and, after summarizing our initial responses to these comments in section II.B., provides a fuller response in section III. of this document concerning how these comments relate or could be read as relating to the question of the Good Neighbor Plan's application and severability on a state-by-state basis, consolidating material and discussions from the existing administrative record at the time the EPA issued the action. To provide the most complete possible response to the issues identified by the Supreme Court, the Agency has considered these comments from all angles, even considering arguments that are not evident on the face of the comments themselves. For this reason, we do not concede that each of the topics discussed in this document was in fact raised with “reasonable specificity” by the commenters themselves, as required by CAA section 307(d)(7)(B), but the Agency views it to be appropriate in light of the Court's preliminary findings in Ohio to address all of the issues commenters potentially could be seen to have raised, to ensure a thorough and complete response to the commenters' concerns.

In responding to these comments, the Agency is relying solely on the information and data available in the record at the time the Good Neighbor Plan was signed by the EPA Administrator and promulgated on March 15, 2023 (88 FR 36654; June 5, 2023). See CAA section 307(d)(6)(C) (limiting the basis for CAA rules issued under section 307(d) to “information [and] data . . . placed in the docket as of the date of [ ] promulgation”). The purpose of this document is not to supplement the record of the Good Neighbor Plan with new findings, information, data, or new record support, but rather only to consolidate the existing material in the record to more fully respond to the relevant comments received during the public comment period following proposal of the Good Neighbor Plan. In this document, we provide an “amplified articulation” of the methodology underlying the design of the Good Neighbor Plan to more fully explain why, at the time the EPA issued the Good Neighbor Plan, it understood the Good Neighbor Plan's requirements to reasonably function on a state-by-state basis and therefore to be severable by state. See Dep't of Homeland Sec. v. Regents of the Univ. of Cal., 591 U.S. 1, 20-21 (2020) (quoting Alpharma, Inc. v. Leavitt, 460 F. 3d 1, 5-6 (D.C. Cir. 2006)).

Thus, in this document, we compile and present together discussions and components of the analysis that are already in the record and explain how they relate to one another and together demonstrate that the Good Neighbor Plan fulfills the statutory mandate for each state regardless of the number of states included in the rule at any given time.

As described in more detail in section II.A. of this document, following the Supreme Court's opinion in Ohio, the EPA sought a voluntary partial remand of the Good Neighbor Plan from the D.C. Circuit to provide the explanation that the Supreme Court concluded was likely lacking in the Good Neighbor Plan. The D.C. Circuit ordered “that the record be remanded to permit the Environmental Protection Agency to further respond to comments in the record.” State of Utah et al. v. EPA, No. 23-1157 (D.C. Cir. September 12, 2024).

The statutory authority for the Good Neighbor Plan is provided by the CAA as amended (42 U.S.C. 7401 et seq. ). The most relevant portions of CAA section 110 are subsections 110(a)(1), 110(a)(2) (including 110(a)(2)(D)(i)(I)), and 110(c)(1). For further information, see section II.C. of the preamble for the Good Neighbor Plan, 88 FR 36667-68.

On March 15, 2023, in accordance with CAA sections 110(a)(2)(D)(i)(I) and 110(c)(1), the EPA promulgated the Good Neighbor Plan, a rule determining the good neighbor obligations of 23 states with respect to the 2015 ozone NAAQS and establishing for these states federal implementation plans (FIPs) for emissions sources in these states to address each state's obligations by reducing emissions of nitrogen oxides (NO X ), an ozone precursor. 1 Prior to promulgating the Good Neighbor Plan, the EPA had disapproved state implementation plans for 21 of those states and had found that several states had failed to submit complete plans—predicates to EPA's authority to promulgate FIPs for those states. 2 Following the Good Neighbor Plan's promulgation, in response to judicial orders partially staying the SIP Disapproval as to several states, the EPA issued two sets of interim amendments (referred to here as the First and Second Interim Final Rules) staying the Good Neighbor Plan's effectiveness for emissions sources in those states pending the resolution of judicial review of that action and further EPA rulemaking. 3 As modified by the First and Second Interim Final Rules, the Good Neighbor Plan's FIPs applied to electric generating units (EGUs) within the borders of Illinois, Indiana, Maryland, Michigan, New Jersey, New York, Ohio, Pennsylvania, Virginia, and Wisconsin and to non-EGU sources within the borders of nine of the same ten states (all except Wisconsin) as well as California. 4

In October 2023, after the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) denied motions to stay the Good Neighbor Plan pending judicial review, 5 four sets of parties submitted emergency applications to the United States Supreme Court seeking a stay of some or all of the Good Neighbor Plan's requirements. 6 In an opinion issued on June 27, 2024 (referred to here as the Stay Order), the Supreme Court granted the emergency applications and ordered that “[e]nforcement of EPA's rule against the applicants shall be stayed” while judicial review of the Good Neighbor Plan on the merits proceeds, first in the D.C. Circuit and then potentially in the Supreme Court. 7

The Court found that, with respect to the “explanation why the number and identity of participating States does not affect what measures maximize cost-effective downwind air-quality improvements,” the stay applicants “are likely to prevail on their argument that EPA's final rule was not `reasonably explained,' that the agency failed to supply `a satisfactory explanation for its action[,]' and that it instead ignored `an important aspect of the problem' before it”. Ohio v. EPA, 144 S. Ct. 2040, 2054 (2024) (citations omitted). The Court focused in particular on the fact that the Good Neighbor Plan's FIPs had been stayed in several states pending judicial review of the EPA's disapproval of those states' state implementation plan (SIP) submissions. 144 S. Ct. at 2051-52. Stay applicants had argued that the “EPA's plan rested on an assumption that all 23 upwind States would adopt emissions-reduction tools up to a `uniform' level of `costs' to the point of diminishing returns” and the EPA had not explained how the rule was substantiated for a smaller number of states. Id. at 2053 (citations omitted). The Court preliminarily interpreted several comments filed on the proposed Good Neighbor Plan as raising this concern, i.e., that if a different number or grouping of states were subject to the EPA's FIPs promulgated in the Good Neighbor Plan rulemaking, then the EPA's cost-effectiveness analysis would have changed, and therefore the obligations would or could be different for the remaining states. Id. at 2050-51. The Court did not conclude that the EPA's methodology was unlawful, or that petitioners were correct in their assessment that the Good Neighbor Plan's obligations could change depending on the number or group of states subject to it. Rather, the Court preliminarily found that the EPA had failed to adequately respond to the relevant comments and thus the rule was likely not “reasonably explained.” Id. at 2054. The Court noted that the rule's “severability” discussion did not adequately address the issue, since that discussion, in itself, contained no supporting analysis. Id. at 2054-55.

On March 27, 2024, several months before the Supreme Court issued this ruling, the EPA partially denied several petitions for reconsideration of the Good Neighbor Plan objecting to the rule on the basis that it had been stayed in certain states and was no longer lawful or workable in the remaining states, as well as objecting that the rule should not have been published at all following judicial stays of the SIP Disapproval as to certain states. The EPA's “basis for denial” addressed both issues and determined that these objections were not “centrally relevant” because, after examining the objections in detail, the EPA concluded they failed to establish that the rule should be revised. See 89 FR 23526 (April 4, 2024) (providing notice of issuance of the partial denial). 8 The Supreme Court declined to consider the EPA's Denial in evaluating the applications for stay. See 144 S. Ct. at 2068 n.11.

Following the Supreme Court's decision granting the applications to stay enforcement of the Good Neighbor Plan, the EPA implemented the Court's stay of the effectiveness of the Good Neighbor Plan's requirements for the sources that would have been subject to the rule pursuant to the 23 states' FIPs originally promulgated, pending judicial review. See 89 FR 87960 (November 6, 2024). In addition, the EPA sought a voluntary partial remand of the Good Neighbor Plan. The D.C. Circuit granted a remand of the record of the rule so that the EPA might respond to the comments related to the rule's appropriateness for each state and operation. State of Utah et al. v. EPA, No. 23-1157 (D.C. Cir. September 12, 2024). The D.C. Circuit retains jurisdiction of the case, has placed the case in abeyance pending further order of the court, and has directed the parties to file motions to govern future proceedings in the case within 30 days after completion of this remand or December 30, 2024, whichever is earlier. Id.

The following section, II.B. of this document, summarizes the comments identified by the Supreme Court as relevant to the issue of the Good Neighbor Plan's operation if one or more upwind States were no longer participating and provides a summary of the EPA's responses to these comments in the Good Neighbor Plan with citations to the record. 9 The EPA does not intend to reopen its prior response to those comments through this document by summarizing those prior responses. Section III. of this document provides a fuller explanation in response to a specific issue identified by the Supreme Court derived from these comments: whether the Good Neighbor Plan would lawfully define and implement good neighbor obligations for any particular state if it were not in effect for some other state or states. As the EPA originally concluded based on the information in the record at the time of promulgation, the Good Neighbor Plan appropriately defines each state's obligations on an individual basis and is severable on a state-by-state basis. See 88 FR 36693.

Comment category 1 (SIP/FIP sequencing): Multiple commenters (the Missouri Department of Natural Resources (MO DNR), the Louisiana Department of Environmental Quality (LA DEQ), and the Texas Commission on Environmental Quality (TX CEQ)) expressed concern that the EPA had proposed FIPs prior to finalization of the SIP disapprovals for states included in the FIP rulemaking, without knowing which states would ultimately be covered by a FIP. Commenters state that this kept the EPA from being able to receive and consider the technical, procedural, and legal issues that they identified in their comments. Commenters state that the proposed FIPs presume the result of the proposed disapproval of SIPs even though the comment period for the SIP Disapproval action was ongoing at the time of the proposed FIPs.

Commenters (LA DEQ and TX CEQ) requested that the EPA withdraw both the proposed FIPs for their states and the proposed SIP disapproval so that both states could have a further opportunity to show that their respective SIPs address their supposed significant contribution to nonattainment or interference with maintenance in downwind states. One commenter (MO DNR) requested that the EPA withdraw the proposed FIP for Missouri and other states so that the EPA can consider and respond to all comments received on the SIP Disapproval action. The commenter goes on to request that the EPA respond to all comments on the proposed disapproval of the Missouri SIP in the final action for the Good Neighbor Plan if it does not withdraw the proposed FIP, as the SIP Disapproval action and the proposed FIP are “inextricably linked.”  10 Relevant portions of the comment are included immediately below.

Citations to previous responses: The EPA explained that FIPs can be proposed before final action is taken on SIP disapprovals, because the statute provides that the EPA is required to promulgate a FIP “at any time within 2 years” of a SIP disapproval or a finding of failure to submit. This statutory sequence necessarily permits the proposal of a FIP before the finalization of a SIP disapproval. See 88 FR 36689 (citing CAA section 110(c)(1); EME Homer City, 572 U.S. 489, 509). The EPA was clear in both the proposed and final rulemaking documents that it was issuing FIPs on a state-by-state basis, with adjustments in the scope of states covered by the Good Neighbor Plan's uniform regulatory programs occurring from proposal to final based on changes in the underlying analytics, similar to changes in state coverage that had occurred under prior good neighbor rulemakings. 15 The EPA explained that it had predicate FIP authority for each of the 23 covered states at the time of signature and promulgation of the Good Neighbor Plan. See 88 FR 36688-89 and the Good Neighbor Plan Response to Comments (RTC) Document at 6-8. 16 The EPA explained the timing of its action to promulgate FIPs in relation to the need to address good neighbor obligations as expeditiously as practicable, and to the extent possible by the 2023 ozone season, 88 FR 36690, and explained why we would not delay our action to afford states additional opportunities to develop new submissions or instead issue a call for SIP revisions, though we noted that states remain free to develop and submit SIP revisions at any time. See Good Neighbor Plan RTC at 12-15. The EPA further explained its reasoning concerning the sequencing of its actions and that this sequencing did not prejudice the Agency's evaluation of states' SIP submissions in the separate SIP Disapproval action. See Good Neighbor Plan RTC at 149-51. The EPA noted that it was not finalizing its proposed FIPs for several states, and the EPA acknowledged that several states remained to be addressed for which it either lacked predicate authority to issue a FIP or because further rulemaking proceedings were appropriate. 88 FR 36658. The EPA explained that specific technical or legal objections to the SIP Disapproval were addressed in that action and were out of scope of the Good Neighbor Plan. Id. at 144-45, 155.

Comment category 2 (potential for new modeling at Steps 1 and 2): Comments from the Air Stewardship Coalition (ASC) and the Portland Cement Association (PCA) asserted that if the EPA took different action on SIPs than contemplated in the FIP rulemaking proposal, the EPA would be required to conduct a new assessment and modeling of contribution and subject those findings to public comment. In a section titled “EPA Step Two Screening is Premised on the Premature Disapproval of 19 Upwind States Good Neighbor SIPs” (sections III.C. and II.C. of their respective comments) the ASC and the PCA stated that the EPA's screening at Step 2 of the 4-step interstate transport framework for the Proposed Good Neighbor Plan included states that already had good neighbor SIPs for the 2015 ozone NAAQS. Commenters state the EPA should not have included these states in this proposed rule's screening as the final disapproval of said SIPs was not issued prior to the proposed FIP. The commenters claim that the EPA rushed to take final action on its good neighbor SIPs when the EPA proposed to disapprove 19 good neighbor SIP submissions and four findings of failure to issue a complete SIP on February 22, 2022. Commenters state that in doing so the EPA prejudged the outcome of the pending SIP actions in their separate FIP action and did not account for the possibility that the EPA may take a different course of action at final than what was proposed in the SIP Disapproval action.

Commenters indicate that as a consequence of this prejudgment the EPA may need to conduct a new assessment and modeling of contribution at Step 2 of the 4-step interstate transport framework if the EPA chooses to take a different action on any of the SIPs they have proposed to disapprove or found as having failed to issue a complete SIP. As such, commenters urged the EPA to stay action on the proposals and coordinate with states to ensure the appropriate sequence of actions is taken. The relevant text of the ASC's comment is included immediately below. 17

Citations to previous responses: The EPA explained that, partially in response to comments concerning technical issues with the modeling used at proposal for Steps 1 and 2, it conducted a new round of modeling and air quality analysis at Steps 1 and 2 in taking final action on the SIP Disapproval and the Good Neighbor Plan. 88 FR 36673-74; 88 FR 9339. The EPA explained that it also reviewed recent ozone monitoring data indicating persistent elevated ozone levels at many locations throughout the country. Id. at 36704-05. The EPA explained that for most states its updated air quality analysis for the final rule was confirmatory of its proposed findings concerning which states contribute to downwind receptors at Step 2, and even its older 2011-based modeling. Id. at 36674, 36707. The EPA explained that where its updated analysis at Steps 1 and 2 indicated that a state was not contributing or that the basis for finding contribution had changed, it was not finalizing a FIP for that state in the Good Neighbor Plan; the EPA indicated its intent to address these and other states in subsequent actions. Id. at 36656, 36658, 36689; see also SIP Disapproval, 88 FR 9354. 19

Comment category 3 (cost-effectiveness at Step 3): Comments from ASC, PCA, the Indiana Municipal Power Agency (IMPA), the Lower Colorado River Authority (LCRA), and the Wisconsin Paper Council (WPC) question the methodology by which the EPA identified a cost-threshold used to establish the cost-effectiveness of the proposed controls.

Commenters (ASC and PCA) both ask the EPA to reconsider the $7,500/ton average marginal cost-effectiveness threshold used for non-EGUs stating that it is too high and a departure from past practices. Both commenters state the EPA has failed to explain why the EPA relied on a “knee in the curve” approach instead of the past “clear breakpoint” approach to determine the $7,500/ton number. Commenters state that there is no noticeable break at that point for Tier 1 industries but there is a break at $1,600/ton mark; however, commenters concede there is a difference at $7,500/ton in Tier 2 industries and the combined Tier 1 and 2 industries line. In addition, commenters question why the EPA departed from the cost-effectiveness threshold used in the 2021 Revised CSAPR Update Rule ($2,000/ton in $2016) as it appears to commenters that the EPA had not collected any new information on costs or technologies or used different implementation timelines since the Revised CSAPR Update Rule. The relevant text of the Air Stewardship Coalition's comment is included immediately below. 20

Other commenters (IMPA, LCRA, and the WPC) state that cost-effectiveness varies based on operational characteristics of the unit in question, that installing controls on existing EGUs may not be cost-effective, and that emissions from certain industries (specifically pulp and paper mills) would have a negligible effect on air quality.

One commenter (IMPA) objected that requiring a specific type of emissions control will result in a lack of flexibility. They state that the cost-effectiveness of employing selective non-catalytic reduction (SNCR) will be highly variable, and that units employed at peak timeframes will not see similar emissions reductions to those that are used as base load generation. The commenter then states that technology specific dictates are not the best means of emissions control but would prefer controls that maintain flexibility.

To support their claim that the EPA's EGU controls are unlawful because they are not cost-effective, another commenter (LCRA) states that the installation of controls on existing sources (as compared to new sources) is not “per se reasonable or cost-effective.”  22 The commenter goes on to state that EGUs that have already invested in state-of-the-art combustion controls have already undertaken significant costs and will have less to gain from additional controls such as an selective catalytic reduction (SCR) retrofit.

Finally, one commenter (WPC) states that the emissions reductions coming from adding controls to pulp and paper mills “would have a negligible effect on air quality.”  23 The commenter states that this, coupled with a continued decreasing trend of Wisconsin-based stationary source NO X emissions, anticipated mobile source NO X reductions, and additional reductions that they assert were not accounted for in the EPA's analysis, indicates that inclusion of Wisconsin pulp and paper mills are not needed to achieve downwind air quality improvement.

The relevant text of the various commenters is included immediately below.

Citations to previous responses: The EPA explained that, as it had in all prior good neighbor rulemakings for ozone, it was establishing uniform emissions control levels for all covered states, using a comparative analysis of the cost-effectiveness of different emissions control technologies as a key metric to establish the appropriate degree of stringency to define “significant contribution.” 88 FR 36675-77, 36678-79, 36683, 36718-19, 36741. The EPA explained that it determined in the final Good Neighbor Plan it would require controls up to the $11,000/ton representative cost threshold identified for EGUs associated with retrofit of SCR post-combustion control technology and that non-EGU costs on a per ton basis were generally commensurate with this level of control stringency. 88 FR 36746-47. The EPA explained there could be variation in costs for particular units depending on their configurations or level of operation but that this variation did not impact its selection of the overall appropriate level of stringency. Id.; id. at 36740-41. The EPA explained it was not relying on the $7,500/ton preliminary threshold identified in the Non-EGU Screening Assessment, recognizing costs were more heterogeneous than that single figure, and that nonetheless, the Screening Assessment adequately served its function of helping the EPA target the most impactful non-EGU emissions control strategies in defining “significant contribution.” Id.; Good Neighbor Plan RTC at 113-15. The EPA explained that for EGUs, the trading program would allow for cost-efficient compliance planning for all sources and adjusted its proposed trading program “enhancements” to preserve greater flexibility for EGUs through the 2020s, id. at 36729-30, 36684, while for non-EGUs, the EPA made available flexibilities such as alternative emissions limits for any units facing excessively high costs or technical infeasibility, id. at 36818-19. The EPA explained that it believed its selected level of stringency as compared to prior transport rules was appropriate in light of the more protective 2015 ozone NAAQS and its projections of persistent elevated ozone levels. Id. at 36660. It explained how its analysis compared and was consistent with the determinations in the Revised CSAPR Update and other previous rulemakings taken pursuant to CAA section 110(a)(2)(D)(i)(I). 88 FR 36660; Good Neighbor Plan RTC at 37-39, 92-93. The EPA explained how it had derived its estimates of representative costs for both EGUs and non-EGUs, which accounted for a range of costs associated with retrofit of controls on existing sources. 88 FR at 36720-31, 36738-40. The EPA explained how its selected level of control was also roughly commensurate with the level of control required of existing sources in downwind states. Good Neighbor Plan RTC at 62-63.

The EPA explained how it evaluated the air quality factor in its Step 3 analysis, viewing it as serving a confirmatory role that an appropriate level of emissions control stringency would be achieved overall, that (based on available information) no cost-effective strategies had been overlooked, and that if the identified cost-effective level of control stringency were applied uniformly across the linked upwind states, there would be, on average and in the aggregate, widespread reductions in ozone levels at downwind receptors. Id. at 36683, 36741, 36748-50.

The EPA explained that it generally focused on large stationary sources of NO X emissions in upwind states, consistent with the science of regional-scale ozone transport and all of its prior good neighbor rulemakings for ozone. Id. at 36660, 36671, 36719. The EPA explained it recognized that air quality improvement from any particular source or group of sources may appear relatively small, but this is simply an expression of the “collective contribution” problem that ozone presents. Good Neighbor Plan RTC at 98, 103-04. The EPA explained why, given this problem and the need to control many sources over a wide area, it makes sense to define obligations for each state subject to a FIP through the application of a uniform level of emissions control across the linked states and to regulate on an industry-by-industry basis across those states, as a matter of both efficiency and equity. 88 FR 36673, 36675-76, 36677, 36680, 36683, 36691, 36719, 36741; Good Neighbor Plan RTC at 8, 48, 56-58, 83, 92-93, 118.

The EPA explained that it considered boilers in several industries to be impactful and controllable non-EGU types and that boilers in the pulp and paper industry were among those sources with well-demonstrated, cost-effective NO X -emissions control options. 88 FR 36681-82, 36736, 36739-40; Good Neighbor Plan RTC at 93, 97, 99-100, 107, 119-21. The EPA explained that it was nevertheless not including non-EGU requirements for Wisconsin in the final rule because based on the updated modeling used for the final rule, Wisconsin was no longer projected to be linked to downwind receptors in the 2026 analytic year. Id. at 118.

The EPA addressed SNCR operating characteristics and effectiveness for existing EGUs, both in terms of optimizing SNCR controls that had already been installed, and in terms of installing new SNCRs on existing EGUs. 88 FR 36725-26. The EPA evaluated comments concerning SNCR performance where specifically raised, see, e.g., Good Neighbor Plan RTC at 229. The EPA also gave consideration to certain EGUs that have widely varying operating levels because they serve a “peaking” function rather than supplying baseload power to the grid and did not include them in setting the stringency of the rule for EGUs at Step 3. 88 FR 36732.

In this section, the EPA provides a fuller explanation why the Good Neighbor Plan can and should apply on a state-by-state basis for any state for which the EPA has a responsibility to promulgate a FIP, regardless of the number of states covered at any given time. Drawing together the Agency's legal and technical reasoning, based on the information and data available at the time, provided in the record when the Good Neighbor Plan was signed and promulgated, the EPA provides a more thorough response to the relevant comments that together can be read to have raised that issue.

As the EPA stated in the final rule, the Good Neighbor Plan by design is severable by state. 88 FR 36693. The rule implements the statute's prohibition on “significant contribution” under CAA section 110(a)(2)(D)(i)(I) for the 2015 ozone NAAQS by promulgating state-level FIPs that require the industries in each contributing upwind state to achieve at least minimum levels of emissions performance deemed to be cost-effective. Id. at 36741. So long as they meet that level of performance, the industries in any state regulated under the Good Neighbor Plan are understood to have lawfully addressed good neighbor obligations and eliminated that portion of a state's significant contribution to downwind air pollution. While the EPA must necessarily account for the multi-state nature of the interstate-ozone problem, consistent with the statute and case law, the Good Neighbor Plan imposes obligations on sources in each individual state that are appropriate for those sources and are achievable.

Those requirements result from the application of a longstanding analytical framework that the EPA has applied when evaluating interstate transport obligations for multiple prior ozone NAAQS. 88 FR 36660, 36668-69. Shaped through the years by input from state air agencies  27 and other stakeholders on the EPA's prior interstate transport rulemakings and SIP submission actions, 28 as well as court decisions, the EPA has developed and used a “4-step interstate transport framework” to evaluate states' obligations to eliminate interstate transport emissions under the interstate transport provision for each prior ozone NAAQS: (Step 1) identify monitoring sites that are projected to have problems attaining and/or maintaining the NAAQS ( i.e., nonattainment and/or maintenance receptors); (Step 2) identify states that impact those air quality problems in other ( i.e., downwind) states sufficiently such that the states are considered to “contribute” ( i.e., are considered “linked”) to those receptors and whose emissions therefore warrant further review and analysis; (Step 3) identify the emissions reductions necessary (if any), applying a multifactor analysis, to eliminate each linked upwind State's significant contribution to nonattainment or interference with maintenance of the NAAQS at the locations identified in Step 1; and (Step 4) adopt permanent and enforceable measures needed to achieve those emissions reductions. The EPA does not require states to use the 4-step interstate transport framework in good neighbor SIP submissions, nor has the EPA ever maintained that this is the only way states could satisfy their obligations under CAA section 110(a)(2)(D)(i)(I). However, it is a useful organizational tool and evaluation framework that comports with the statutory text and structure of the Act. The application of uniform levels of emissions control stringency at Step 3 across all linked states has been upheld by the Supreme Court as “permissible, workable, and equitable.” EPA v. EME Homer City Generation, L.P., 572 U.S. 489, 524 (2014). The Supreme Court there expressly rejected that the Act mandates a definition of “significance” that is directly proportional to each state's contribution, finding that reading “appears to work neither mathematically nor in practical application.” Id. at 516. As the EPA explained in the Good Neighbor Plan, the 4-step interstate transport framework, including the application of uniform minimum control stringency, remains a particularly fair and equitable approach to apply in the case of a multistate pollution problem like ozone, characterized by “collective contribution” and in which widespread emissions reductions of a single precursor pollutant (nitrogen oxides or NO X ) over a wide geographic area are known to be effective in improving ozone levels downwind. 88 FR 36719.

Because the methodology for defining those obligations ultimately relies on a determination regarding what level of widely available emissions performance each type of regulated source can cost-effectively achieve, the obligations set for sources in each state are independent of the number of states included in the Good Neighbor Plan. Accordingly, the fact that obligations may be suspended or not yet operative with regard to some states does not impact the Good Neighbor Plan's conclusions as they apply in other states. Rather, as the EPA explained, the framework yields an “amount” of pollution for “each State” that the EPA is authorized to “prohibit,” CAA section 110(a)(2)(D)(i), standing in the shoes of a state, CAA section 110(c)(1), based on the amounts of pollution that would be avoided in that state by applying the control technologies the EPA determined were cost-effective for the covered industries. 88 FR 36675. The amounts to be prohibited are thus premised on reasonable levels of pollution control upwind rather than on a specific, aggregate quantum of ozone reduction that must be achieved downwind. Michigan v. EPA, 213 F.3d 663, 674-80 (D.C. Cir. 2000).

Under this framework, while the emissions-control requirements are uniform across the same types of sources in each state, the size of each state's total incremental emissions-reductions obligation under the Good Neighbor Plan, and the resulting improvement in air quality downwind, depends on the particular sources present in that state and the level of pollution reduction those sources are already achieving. 88 FR 36683. If a state's sources are already well-controlled, they will have less to do to meet the EPA's defined level of control stringency; if the state's sources are not already well-controlled, they will have to do more. But these state-specific obligations derive from the application of common, uniform levels of emissions control stringency calculated for each type of source based on the demonstrated performance of pollution control technologies that can be replicated in any linked upwind state. EME Homer City, 572 U.S. at 519-20. Calculating “significance” according to source type and concluding that the good neighbor provision can be reasonably implemented by bringing all covered sources up to a common level of control ensures the EPA can fairly administer the program in any state that becomes subject to a need for federal regulation, while avoiding inequities that could arise if state plans (and relevant sources) were addressed seriatim. See 88 FR 36749 (explaining the need to avoid a “which state goes first” problem). The achievement of that level of performance for any particular state is not dependent on the number of states in the Good Neighbor Plan, nor on the order in which the states are addressed. In this way, the Good Neighbor Plan prohibits each covered state's “significant contribution” to downwind ozone problems in a “permissible, workable, and equitable” manner. 572 U.S. at 524.

Given this statutory structure and regulatory framework, the Good Neighbor Plan is “modular” by nature, defining and implementing the obligations for each state.

First, in line with the statutory text, structure, and case law, the EPA determines the “significant contribution” that must be prohibited at the individual state level. See 88 FR 36687 (citing North Carolina v. EPA, 531 F.3d 896, 906-08, 921 (D.C. Cir. 2008)). None of the steps in the 4-step interstate transport framework differ based on the number of states included in the Good Neighbor Plan. For example, the control technologies and cost-effectiveness figures the EPA considers at Step 3 do not depend on the number of states included. Instead, the Good Neighbor Plan regulates certain relatively large emitting sources in each included state (including both new and existing sources meeting the relevant criteria), up to a uniform level of pollution control that is common across sources of that type in all potentially contributing states. Once the “amount” of pollution for each state is determined, whether the 4-step interstate transport framework is applied to one state or fifty, it would yield the same emissions control obligations for the included states. That means that when the number of states whose sources are included in the Good Neighbor Plan's regulatory programs for EGUs or non-EGUs changes from the number included at promulgation, which is historically common in interstate transport rules and consistent with states' authority under the Act to replace federal plans with state plans, the emissions reduction obligations of the states remaining in the Good Neighbor Plan's programs stay the same, and the obligations of states joining the Good Neighbor Plan's programs are the same as those that were applied to the states already included.

Second, given the state-specific statutory mandate, for those components of the Good Neighbor Plan that necessitate consideration of multi-state effects, the EPA is careful to avoid creating any interdependency among the particular states included, both in the Agency's analytical methodology and in the Good Neighbor Plan's regulatory requirements. As the EPA explained in the rule, interstate ozone pollution continues to present a “collective contribution” challenge wherein many sources of emissions over a wide geographic area comprise a substantial portion of the ozone problems downwind. 88 FR 36678, 36712. Where the EPA is called upon to fill a gap in state planning efforts, it must therefore develop solutions for the relevant state(s) that reasonably account for the efforts other states may undertake, even in the face of uncertainty concerning what those states may do. Id. at 36695-96. For example, when evaluating the Good Neighbor Plan to ensure it did not “overcontrol” ( i.e., yield more reductions than necessary), the EPA did not just look at the states included in the original Good Neighbor Plan, but also looked at all of the other states the modeling showed were potentially affecting downwind air quality above the “contribution” threshold (as well as each receptor's “home” state), even if those states were not included in the Good Neighbor Plan. 29 See infra note 47 supra and accompanying text (providing record citations). Taking this broad view, the EPA found that even making all cost-effective reductions available in all linked upwind states, and assuming equivalent emissions reductions from the two downwind states not included in the Good Neighbor Plan, the rule would not constitute overcontrol. 88 FR 36749-50. Accordingly, because the overcontrol analysis already assumes the emissions reductions that can reasonably be anticipated from the implementation of the good neighbor provision for a given NAAQS, requiring available emissions reductions in any subset of those states does not constitute overcontrol of those upwind states. See section III.B.2.c. of this document (providing record citations). Finally, the Good Neighbor Plan's regulatory requirements, including the emissions trading program for power plants, are designed to be fully implementable in each individual state and do not depend on participation from a minimum number of states. See section III.B.3. of this document (providing record citations). In these ways, the EPA's methodological approach to devising good neighbor FIPs for ozone ensures against inter-dependency among states, through accounting for the effects of emissions reductions within a web of “overlapping and interwoven” linkages among many states, EME Homer City, 572 U.S. at 496-97, while at the same time setting technology-based emissions limits and other control measures that the sources in each state can meet. 88 FR 36741, 36749.

Third, while equity and consistency in obligations among states are at the core of the statute and the EPA's 4-step interstate transport framework, the suspension or removal of the Good Neighbor Plan's requirements in some states does not provide a lawful basis to suspend them in others. Just as each state has an individual obligation to satisfy the good neighbor requirements of CAA section 110(a)(2)(D), regardless of whether other states have done so, the EPA has a statutory obligation to address the good neighbor obligations of “each State” where it has a federal responsibility to act. CAA section 110(c)(1). Indeed, the goals of equity and consistency extend to the downwind states for whom the good neighbor provision was enacted. The good neighbor provision's requirement of consistency with the rest of the CAA, see CAA section 110(a)(2)(D)(i), including the air quality attainment schedules that are the “heart” of the Act, Train v. NRDC, 421 U.S. 60, 66 (1975), means that each downwind state with identified air quality problems has a statutory right to timely relief from the public health and regulatory burdens of upwind pollution. See 88 FR 36694 (discussing case law). It would be contrary to this statutory purpose to revise or suspend the Good Neighbor Plan as to upwind states for which the EPA is under a statutory requirement to act because the Good Neighbor Plan's requirements were suspended for other states.

These principles are applicable in a variety of circumstances where the EPA may approve a state's SIP as sufficiently meeting its good neighbor obligations even if the state's approach is different than the EPA's approach, for that state or for other states. The EPA's interstate ozone transport actions are typically taken on a national basis and with the goal of ensuring consistency, including in terms of alignment of the timing of obligations, because doing so ensures equitable treatment of all states and is administratively efficient given the commonality in analysis and obligations across many states, particularly in the case of interstate ozone transport. In addition, the establishment of interstate emissions trading programs has allowed for more cost-efficient compliance activities, and it is far more efficient to establish these programs through a consolidated, multistate rulemaking action. Historically, this has also been coupled with the EPA's practice of seeking consolidated judicial review of such actions in the D.C. Circuit to ensure that a consistent caselaw regime applies across the entire country on matters of interstate ozone pollution and is not varied by which federal judicial circuit a state happens to be located in. 88 FR 36859-60. 30

Nonetheless, the EPA acknowledged states' ability to develop alternative, potentially approvable approaches to meeting their good neighbor obligations. See 88 FR 36838-43. In evaluating alternative approaches, the EPA must consider interstate consistency, 88 FR 36839-40; id. n.405; 87 FR 9338, 9380-81, but it has never been the Agency's view that its methodology for defining one state's obligations would have to be redone simply because it found an approach in another state also approvable.

Thus, as explained in more detail in section III.B., the comments asserting that the EPA should stay, revise, or withdraw the Good Neighbor Plan for any particular state depending on the status of implementation of good neighbor obligations of other upwind states cannot be squared with the state-specific mandate of the Act, nor would this be compelled as a result of any element of the EPA's 4-step interstate transport framework. For those states where the Good Neighbor Plan may be currently suspended, good neighbor obligations will ultimately be met, either through an approved state plan or a federal plan as necessary. Meanwhile, sources in upwind states regulated by the Good Neighbor Plan would be under the same legal obligation to control their pollution even if the EPA developed a federal plan containing just those states or some subset of them or separate federal plans for each state.

A review of the EPA's methodology demonstrates why each upwind state would bear the same emissions reduction obligations, regardless of how many states were included in a particular rulemaking. The EPA's method for defining good neighbor obligations, while applied consistently across the nation and respectful of the multistate “collective contribution” nature of the interstate ozone problem, produces a definition of “significant contribution”  31 for the sources in each individual state, and provides for the prohibition of such emissions in a manner that is not dependent on the inclusion of any particular number or grouping of states. As tested and refined through case law over the past quarter-century, the EPA's methodology is consistent with the state-specific structure of the Act and the fundamental statutory obligation to define and prohibit each state's own significant contribution. See CAA section 110(a)(1) and 110(a)(2)(D); Wisconsin v. EPA, 938 F.3d 303, 324-25 (D.C. Cir. 2019); North Carolina, 531 F.3d at 906-08, 920-21.

Consistent with the statutory text and structure and judicial precedent, the EPA's 4-step interstate transport framework was designed to be independent of the number or scope of included states. Because the statute allows states to replace a FIP with a SIP—and because as a practical matter the EPA does not necessarily receive or act on each state's SIP submission at the same time—the Good Neighbor Plan is expressly designed to allow states to be added to or removed from the federal emissions control program over time, as circumstances require (including where a state submits an approvable SIP to replace their FIP, see 88 FR 36838-39). The Good Neighbor Plan does so primarily by setting good neighbor obligations based on the available, cost-effective technologies that can be applied to each type of high-emitting source—a technology-focused definition of “significant contribution” that the Supreme Court upheld in EME Homer City and that can be evenhandedly applied to existing sources and those that may be newly located in any contributing State in the future. 88 FR 36675-77, 36678-79, 36683, 36718-19, 36741. This ensures fairness and consistency across all states when the EPA must act pursuant to its FIP authority to implement CAA section 110(a)(2)(D)(i)(I), regardless of when any particular state is addressed—it avoids the problem of “which state goes first”; that is, it avoids producing unfairly varying levels of emissions-control stringency depending on the order in which states' obligations are addressed. 88 FR 36749. As the Supreme Court aptly illustrated in EME Homer City, where multiple states contribute to multiple other states (as remains the case across the contiguous U.S. for the 2015 ozone NAAQS), addressing each state's obligations in proportion to its contribution to each receptor in seriatim fashion becomes mathematically unworkable and economically inefficient. 572 U.S. at 516. The EPA's approach to developing ozone good neighbor FIPs avoids these pitfalls, avoids interdependence, and avoids unfairness—it works for each state that may need federal regulation of its sources. Accordingly, under each step of the 4-step interstate transport framework discussed further later, a change in the number of states covered does not impact the obligations of the states or sources that remain covered.

The EPA identifies receptors based on nationwide modeling and monitoring data and evaluates each state's contribution to receptors in downwind states on an individual-state basis to identify upwind-state-to-downwind-state linkages. The air quality modeling and the monitoring data the EPA considered for Steps 1 and 2 cover the contiguous United States. See 88 FR 36696.

At Step 1, the EPA identified downwind receptors that are expected to have problems attaining or maintaining the NAAQS. For a detailed explanation of what receptors are and how the EPA identified them, see 88 FR 36703-08. At Step 2, the EPA identified which upwind states contribute to the identified receptors in amounts that would be sufficient in the EPA's interpretation of “contribution” to “link” the individual upwind states to downwind air quality problems. For a detailed explanation of how the EPA identified these linkages, see 88 FR 36708-12.

The nationwide identification of receptors expected to have problems attaining or maintaining the NAAQS and of states “contributing” to those receptors does not rely upon nor necessarily dictate the number of states included in a particular rulemaking. The EPA historically has applied a common numerical threshold for determining which states “contribute” to downwind air quality problems, and the contributions from each state are evaluated independently with respect to this threshold. 88 FR 36677-78. The modeling of baseline conditions did not contain or rely on the emissions reductions in the Good Neighbor Plan, and the monitoring data were based on measurements during years prior to when the Good Neighbor Plan was final and thus these data do not reflect the impacts of emissions reductions from the Good Neighbor Plan. 32 This approach creates a level playing field from which to assess each state's level of contribution. 88 FR 36713.

In addition to promoting national consistency, the EPA has explained that using a single contribution threshold avoids creating potential inter-dependencies among states. When the EPA had previously considered whether to approve individual states' use of a higher contribution threshold, it had proposed (for the State of Iowa) to consider the effects of other states' efforts to reduce their pollution at shared receptors. See 88 FR 36715. On further consideration, however, the EPA found this would have introduced an interdependency. Id. When the EPA gave consideration to this approach in its SIP Disapproval action disapproving 21 state implementation plans (88 FR 9336; February 13, 2023), in response to comments, it explained that this factor would inappropriately introduce an inequity in which some states could evade obligations through reliance on the incidental effects of other states' efforts. 33 See also 88 FR at 36713 (explaining that “use of alternative thresholds would allow certain states to avoid further evaluation of potential emissions controls while other states must proceed to a Step 3 analysis. This could create significant equity and consistency problems among states.”).

The EPA's analytical methodology at Steps 1 and 2 ensures the EPA can impose FIP obligations, where they may be needed, according to a common rubric that maintains equity and consistency between the potentially subject states. Thus, the analytic methods in both Step 1 and Step 2 to determine “contributing” states rely on emissions and air quality data that are independent of which or how many states are covered by the Good Neighbor Plan.

We note that comments from ASC and PCA in Comment Category 2 summarized in section II.B. of this document contained several statements the meaning of which the EPA could not clearly ascertain. Those comments said the EPA's Step 2 screening analysis included states that “already had Good Neighbor SIPs for the 2015 ozone NAAQS.” See ASC Comment Letter at 13. The meaning of this statement is unclear. States may have made SIP submissions for these obligations, but at the time of this comment, the EPA had not approved all of those submissions and was in the process of disapproving many of them, and so the statement read that way ( i.e., to suggest that the States already had approved SIPs) is factually incorrect. 34 The sentence in the ASC comment letter goes on to state that the EPA “prematurely disapproved” these SIPs, but the disapprovals had only been proposed at the time the comment was submitted. The commenter did not explain what made the EPA's proposed disapprovals “premature.”

This comment might be read as in relation to the previous approvals of SIPs for certain states, and thus an argument that these states' emissions should be excluded from modeling analyses. Or the comment might be read in relation to a subsequent statement in the comment, that states should not be included in the Good Neighbor Plan's “screening” at Step 2 if final action on the SIP submission had not yet been taken. In either of these cases, the comment would be misplaced, in that our analysis of the Steps 1 and 2 modeling looks at the transport of pollution as a factual matter and does not remove from consideration the emissions of states based on the procedural status of their SIP submissions. In addition, as explained in section III.B.1., the EPA's baseline air quality and contribution modeling for Steps 1 and 2 is conducted for a modeling domain that includes the entire contiguous United States and accounts for all emissions sources. 88 FR 36696. Removing emissions from certain states from this modeling would produce erroneous, unrealistic, and counterfactual results.

These comments also stated that the EPA may need to conduct a new analysis at Step 2 in the event the EPA takes a different action on those SIPs than contemplated in the proposed Good Neighbor Plan. In that case, according to commenter, the EPA “would need to conduct a new assessment and modeling of contribution and subject those findings to public comment.” ASC Comment Letter at 14. On the one hand, the EPA agrees with the commenter to the extent they are suggesting that if updated modeling the EPA conducted ( e.g., the 2016v3 modeling used in the final Good Neighbor Plan) showed a state was no longer contributing at Step 2, and the EPA approved that state's SIP submission or had deferred taking action, then the EPA would not promulgate a FIP for that state given that disapproval (or a finding of failure to submit) is a necessary predicate to FIP authority. This is precisely how the EPA proceeded in the final SIP Disapproval and Good Neighbor Plan and in taking subsequent rulemaking actions for states where its final analysis at Steps 1 and 2 had materially changed from its proposed SIP and FIP actions. See 88 FR 36656, 36658, 36689; see also SIP Disapproval, 88 FR 9354. 35 On the other hand, the comment might be read to suggest that if the EPA's analysis changed for any particular state at Steps 1 or 2, then it would have to conduct a whole new analysis of every other state at Steps 1 or 2. If so, that comment is in error because the EPA's baseline air quality and contribution analysis at Steps 1 and 2 already accounts for emissions across all states regardless of their inclusion in the rule, and the results of that analysis would not change for one state simply because the results indicated that another state had fallen below the Step 2 contribution threshold.

Taken as a whole, this set of comments appears to be primarily about the need for the EPA to ensure consistency in how it analyzed each state's obligations between the separate SIP and FIP rulemakings (a consistency that the EPA agrees is important and abided by). The commenter did not state that the EPA's analysis must be redone if for reasons beyond the Agency's control the Good Neighbor Plan were stayed or not in effect for any particular state; rather, the commenter emphasized the need for consistency in the EPA's own, substantive analytical determinations. If the commenter intended to argue that a change in analysis at Steps 1 or 2 for one state would necessarily alter the EPA's substantive assessment for other states and would need to be subjected to additional notice and comment, the commenter did not state that, nor provide a theory or reasoning as to why that would be the case, and for the reasons explained in this section (III.B.1.), such an assertion would reflect a misunderstanding of how baseline air quality and contribution analysis is conducted at Steps 1 and 2.

The Act requires each state to eliminate its “significant contribution” to downwind nonattainment or interference with maintenance of air quality standards. To determine which emissions from contributing states are “significant” at Step 3, the EPA analyzes available emissions control strategies and their costs. Based on that analysis, the EPA then identifies a uniform degree of emissions control stringency that is reasonable to require from upwind sources, calculated based on the emissions performance those sources would achieve through the application of the technologies the EPA found were most cost-effective. Step 3 is a multi-factor analysis, with its primary focus on technology availability and associated cost, the level of emissions reductions that are thereby achieved, and the associated air quality benefits delivered to downwind receptors. The approach applies uniform levels of emissions control stringency across all upwind states, with the objective of bringing the covered sources in each state up to a minimum level of emissions performance to reduce ozone-precursor emissions. See 88 FR 36675-77, 36678-79, 36683, 36718-19, 36741. This approach is tailored to a pollution problem characterized by collective contribution from many similar sources all emitting a similar precursor pollutant (NO X ) over a wide geographic area; it ensures an efficient and equitable solution that avoids interdependency. Id. at 36719, 36741, 36749.

Thus, when the EPA uses the term “uniform” in the context of Step 3, it is not referring to the division of a specific “pie” of air pollution, total emissions, or total cost divided proportionally among the upwind states; rather it is referring to application of a pollution technology applied equally across all applicable units of a common size and type. 88 FR at 36746-47. One example of a uniform control stringency level is the assumption that all EGU units with already-installed selective catalytic reduction (SCR) technology operate and optimize the performance of these controls. Id. at 36720-21. The EPA estimated that this would be realized through emissions rates (on average across the fleet) of 0.08 pounds per million British thermal units at costs of about $1,600 per ton of NOx removed. Id. The translation of this technology stringency into the definition of significant contribution is specific to each state's unique group of sources and the operating characteristics of the affected units at those sources. Id. at 36683. In no way is the amount of emissions mitigation required of sources in each state interdependent on another state's mitigation responsibility. The “amount” of pollution that is identified for elimination at Step 3 of the 4-step interstate transport framework is therefore that amount of emissions that is above the level of emissions remaining after the cost-effective emissions control strategies are implemented. Id. at 36676. Because it is possible that a uniform level of stringency may produce more emissions reductions than is necessary to fully resolve a particular upwind state's linkages to all downwind receptors, the EPA tests its identified level of stringency for “overcontrol.” For a detailed explanation of how the EPA applies Step 3, see 88 FR 36718-54.

Acknowledging that some of the factors considered in the Step 3 analysis are considered at a national scale while certain components of that analysis account for state-level or linkage-specific data, the EPA here explains in more detail why the selected levels of control stringency for particular industries, and therefore the particular obligations of individual states, do not vary depending on the number of states subject to FIPs under the Good Neighbor Plan.

The EPA identified potential levels of emissions control stringency that could be applied for each industry, and thus for the set of sources found in each state, regardless of the number of States covered by an approved SIP or a FIP or not yet covered by either. In evaluating those potential levels of stringency, the EPA conducted a wide-ranging survey of emissions control technologies (and associated cost data) used throughout the United States and even internationally. Then, the EPA conducted the air-quality-improvement and overcontrol analyses considering the effects of the potential uniform stringency levels at each identified receptor. The primary way in which the EPA conducts that assessment is to apply the potential stringency levels across all of the states linked to each particular receptor as well as the downwind, “home” state for that receptor. The EPA then assesses the average resulting improvements across all receptors as well as tabulates the aggregate effects. This allowed the EPA to ascertain whether a selected level of stringency was effective at achieving improvements in the air quality downwind that were reasonable in relation to the identified costs, while also ensuring a selected stringency level is not more stringent than necessary to bring any given receptor into attainment. 88 FR 36741, 36749-50. But given the overlapping linkages among multiple upwind and downwind states, as well as varying levels of baseline emissions control in each state, further complicated by the year-to-year variability in ozone levels due to meteorology, id. at 36750, the EPA's methodology, going back to the original NO X SIP Call in 1998, has never attempted to pinpoint a precise level of emissions control for each state that maximizes cost-effectiveness in relation to each specific linkage. See 88 FR 36748 (finding the aggregate and average air quality effects of the combined EGU and non-EGU strategies across all receptors would achieve “meaningful downwind air quality improvements”).

Expressed in simpler terms, the EPA's long-standing interpretation of CAA section 110(a)(2)(D)(i)(I)—an approach that the Supreme Court expressly upheld in EME Homer City— is that a state may satisfy its good neighbor obligations by ensuring that its emissions do not exceed what would result from the application of cost-effective emissions controls. The purpose of Step 3 is to identify a set of widely available and well-established, cost-effective emissions controls that can be applied in any upwind state, while checking to ensure that those emissions controls will achieve downwind improvements in air quality without overcontrol.

As described in more detail in sections III.B.2.a.-III.B.2.c., none of the determinations that underlie Step 3 are contingent on a particular state or set of states being covered by the Good Neighbor Plan. Accordingly, the EPA's Step 3 analysis can be extended to states not covered by the Good Neighbor Plan either because the state is covered by an approved SIP or prior FIP or because the EPA has not yet taken action to review a SIP or impose a FIP. By identifying cost-effective approaches to reducing multi-state ozone pollution in a manner that does not depend on the participation of any particular state or set of states, the EPA's approach reasonably fulfills Congress's direction in CAA section 110(a)(2)(D)(i)(I) to address the multi-state ozone problem in a way that defines each state's obligations on an individualized basis. 36

Specifically, the EPA took the following steps in conducting its Step 3 analysis in the Good Neighbor Plan:

The EPA's analysis started by examining emissions control technologies (sometimes also referred to as “strategies”) and their associated costs and emissions reductions. The Good Neighbor Plan identified conventional, at-the-source, NO X emissions control technologies that have been available in the covered industries for many years. See, e.g., 88 FR 36738 (identifying control technologies for EGUs); id. at 36739 (identifying control technologies for non-EGUs). These analyses were not specific to the particular group of upwind states whose inclusion the EPA had proposed or finalized in the Good Neighbor Plan but looked instead at demonstrated technologies and associated estimated costs across each industry and technology type as a whole, without any geographic limitation. The EPA reasonably considered a wide range of technology and cost information (including information from examples and technical literature throughout the U.S. or even internationally) rather than just the data available in any particular state or regional grouping, since this allows for a more comprehensive assessment of the technologies available and associated costs for each source type. 37

For EGUs, the EPA conducted an inquiry nearly identical to prior good neighbor rules, looking at several widely available and well-understood NO X control strategies that can be and have been applied to EGUs for decades throughout the United States. See 88 FR 36720. For non-EGUs, the EPA similarly consulted a wide range of sources of information, starting with national databases like the National Emissions Inventory and the Control Measures Database (CMDB), and proceeding from there to additional national and international technical literature, as well as a variety of existing state and federal NO X control requirements. See id. at 36732-33; see generally Non-EGU Sectors Final Rule Technical Support Document (TSD);  38 EGU NO X Mitigation Strategies Final Rule TSD. 39 These included trade association literature; academic studies; multi-state regional organization publications; state rules and publications; contractor studies; EPA rules, publications, and databases like the RACT/BACT/LAER Clearinghouse; European Commission publications; operating permits; and data on what emissions limits specific facilities or companies were achieving. See, e.g., Non-EGU Sectors Final Rule TSD at 9-11 (reciprocating internal combustion engines (RICE)), 27-29 (cement kilns), 35-39 (reheat furnaces), 42-43, 45-47 (glass furnaces), 62-65, 68-84 (boilers), 92-94 (Municipal Waste Combustors (MWCs)).

The EPA derived estimated “representative” costs for particular control strategies for EGUs through a wide-ranging analysis of the likely costs associated with capital, material, equipment, and labor. See generally EGU NO X Mitigation Strategies Final Rule TSD. The EPA derived its cost estimates for non-EGUs primarily from the CMDB, which contains a compilation of a variety of sources of technical literature and examples. 40 The “representative” costs that the EPA identified for different levels of control stringency and for different industries were derived from this nationwide analysis and were not specific to the particular states included in the proposed or final Good Neighbor Plan. See 88 FR 36727 (explaining derivation of $11,000/ton estimate). The EPA reasonably considered a wider range of cost information than the data that might be available in any particular state since it allows for a more comprehensive assessment of the costs each source type might be expected to face. 41 While the EPA provided for more individualized consideration of the costs particular facilities might bear and made available alternative emissions limits through its implementing regulations that could be justified on the basis of excessive cost, see 88 FR 36818-19, the EPA explained that cost in the Step 3 analysis “is not intended to represent the maximum cost any facility may need to expend but is rather intended to be a representative figure for evaluating technologies to allow for a relative comparison between different levels of control stringency.” 88 FR 36740.

The EPA also used its technology analysis to calculate the anticipated emissions reductions that could be achieved if those strategies were applied to the population of sources in each state potentially contributing to at least one downwind receptor. 88 FR 36737-40. At this stage of the analysis, the EPA's assessment of the emissions reductions expected from particular control strategies under consideration again did not depend on the number or identity of the states included in the Good Neighbor Plan rulemaking itself. Rather, these estimates provided the inputs by which air quality benefits and overcontrol could then be assessed in the next stages of the Step 3 analysis (discussed next).

After compiling the data on available technologies, their relative cost-per-ton, and the expected emissions reductions that would result from each state, the EPA's Step 3 methodology then proceeded to evaluate the effect those emissions control strategies would have on downwind ozone levels. 88 FR 36741-42. This component of the EPA's analysis looked at the incremental ozone improvement that would be accomplished at each receptor from the reductions accruing from the upwind states linked to that particular receptor (whether included in a particular rule or not) at each of the assessed stringency levels. The analysis of air quality improvement as the EPA has conducted it (in the Good Neighbor Plan and in the prior CSAPR rulemakings) displays the improvements that are incremental to an uneven baseline in which states have imposed differing levels of control stringency. Another way to think about the level of air quality benefit achieved would be to assume an uncontrolled baseline across all states and then apply the different levels of control stringency that were evaluated. This would illustrate far higher levels of air quality benefit as the uniform stringency levels are increased but would not credit the achievements in emissions control that some states have already adopted compared to others.

To calculate air quality change for any given upwind state-receptor linkage, the relevant group of states assumed to make comparable emissions reductions will vary, and in the EPA's primary method of analysis, it does not matter whether the other upwind states or the downwind state are in fact subject to the same emissions control requirements. Rather the purpose of the analytical exercise is to isolate, for comparative purposes, the effects of the potential stringency levels just to the states that are linked to a receptor while also assuming that the “home” state undertakes an equivalent level of stringency with respect to its own sources. See 88 FR 36742, 36748-50. Thus, the total number of states where the EPA has assumed emissions control stringencies as part of its Step 3 air quality assessment for purposes of the Good Neighbor Plan is 30 states. That is, the total of the 23 states included in the Good Neighbor Plan, the five other states that the EPA's analysis identified as potentially or likely to be linked at Step 2, plus, for their own receptors, Colorado and Connecticut as home states, even though they are not linked to other states' receptors.

The EPA's conclusions in the Good Neighbor Plan did not depend on a particular improvement at each individual receptor, but rather on an assessment that there would be widespread improvement in ozone levels across receptors in the aggregate and on average when the selected level of control stringency is applied uniformly across upwind states. See 88 FR 36742-43, 36747-48. In the Good Neighbor Plan, as relevant metrics, the EPA displayed how ozone levels would be expected to change at each receptor, what the average effect of the potential stringency levels would be across all receptors, and what the aggregated effect of the potential stringency levels would be across all receptors. Id. at 36742-43, 36747-48. This analytical exercise allowed the EPA to evaluate what level of stringency was appropriate in terms of delivering an acceptable level of air quality benefit to downwind receptors considering associated costs.

The role of the air-quality factor in the Good Neighbor Plan is essentially no different than in CSAPR. 88 FR 36678. The CSAPR analysis was conducted on a nationwide scale and focused on cost-breakpoints of different technologies, while also accounting for multiple factors other than a singular “knee-in-the-curve;” CSAPR looked holistically at both the “pattern” of linkages and the “average” air quality benefits that could be realized at representative cost/ton thresholds if those technologies were applied uniformly; CSAPR selected stringency levels that appeared to deliver the greatest air quality improvement on average, not state- or linkage-specific. See id.; 76 FR 48255-59. Likewise, in the Good Neighbor Plan, the Agency focused on mandating those NO X reduction strategies across contributing states that were found to be relatively widely-adopted and cost-effective on a per-ton basis, with the understanding that if these strategies were implemented uniformly across the upwind-state region, widespread air quality improvement would be achieved—without tethering that conclusion to some precise knee-in-the-curve specific to each linkage or receptor. See 88 FR 36741.

Commenters allege that this analysis necessarily depends on the specific group of states for which it is conducted, since different groups of states would have different sets of sources, with varying levels of emissions control already installed, and the application of emissions control strategies will have varying effects on downwind air quality. Effectively, these commenters seem to assert, for its methodology to function on an individual basis for each state, the EPA must determine for each state what level of emissions control applied only to its own sources would maximize cost-effectiveness relative to reducing ozone levels at a given downwind receptor. Under this theory, if the EPA conducted such an analysis, the appropriate level of stringency would vary for any particular state from what the EPA determined was appropriate in the Good Neighbor Plan on a uniform basis across states—and perhaps a lesser degree of stringency would be warranted for particular states.

Fundamentally, these comments misapprehend the role of air quality improvement in the EPA's Step 3 analysis and are, in effect, at odds with the EPA's historical approach that the Supreme Court's opinion in EME Homer City upheld, i.e., the use of uniform control stringency (using cost as a proxy for technology type and compliance burden) to allocate responsibility across multiple upwind states despite varying effects of that stringency to downwind receptors. 572 U.S. at 518-19. Consistent with the same statutory interpretation and methodology the EPA has applied throughout each of its prior good neighbor rulemakings for ozone, the Good Neighbor Plan is not premised on accomplishing a precise, aggregate air quality result at each receptor, such that the omission of some states (even if they were legally exempted from obligations rather than simply under a temporary stay order or did not yet have their obligations addressed through a SIP or FIP) would increase the “share” of the problem that must be addressed by the remaining states. Rather, the Good Neighbor Plan holds the industries in each contributing upwind state subject to a federal plan to a uniform, minimum level of emissions performance deemed to be cost-effective. So long as they meet that level of performance, the industries in any state regulated under the Good Neighbor Plan are understood to have lawfully addressed good neighbor obligations and eliminated that portion of a state's significant contribution to downwind air pollution.

Even though this methodology does not purport to achieve attainment at all downwind receptors, it is consistent with the EPA's and the courts' understanding of the good neighbor provision. Under that provision, it is not upwind states' responsibility to ensure that downwind receptors are brought into attainment; each state must only eliminate its own significant contribution to nonattainment or interference with maintenance of the NAAQS in other states. CAA section 110(a)(2)(D)(i)(I). In reviewing the division of responsibility under this contribution standard, courts have upheld the EPA's approach as a reasonable way to allocate good neighbor obligations among multiple states for regional-scale pollutants like ozone, even though the air quality benefits resulting from a particular degree of control stringency will necessarily vary by state and receptor. This variation in effect is the consequence of an approach that respects several well-understood characteristics of the interstate ozone problem: the “overlapping and interwoven linkages between upwind and downwind States,” “the vagaries of the wind” ( i.e., the variability in meteorological conditions that makes precise ozone projections impossible), and the wide variation in the degree of baseline levels of emissions control that different states have already achieved. EME Homer City, 572 U.S. at 496-97, 519-20; see also Wisconsin, 938 F.3d at 322; Michigan, 213 F.3d at 679-80. Commenters may believe that the EPA could at least establish different levels of cost-effective control stringency for each group of states linked to a particular receptor, rather than considering air quality improvement in the aggregate across all receptors— i.e., to pick a knee in the curve that is specific to each particular receptor. Setting aside the problem of meteorological variability, this still presents the same problem the EPA faced in CSAPR, as recognized in EME Homer City: each set of states for one receptor has overlap with a different set of states for a different receptor. 42 Thus, for any given state, there cannot mathematically be a single, “correct” “knee-in-the-curve” that defines a maximally cost-effective stringency. EME Homer City, 572 U.S. at 514-18. Thus, as was the case in CSAPR, an approach that requires high-emitting sources in each state to come up to a uniform level of cost-effective emissions control, so long as it does not overcontrol, functions as a reasonable definition of each covered state's “significant contribution,” and fulfills those covered upwind states' legal obligations under the good neighbor provision. 88 FR 36675-76, 36741.

Both the Supreme Court and the D.C. Circuit have recognized that variation in what a good neighbor rule will achieve at any particular receptor is a logical consequence of defining “significance” through identifying a uniform level of emissions control based on cost-effectiveness. As the Supreme Court explained in EME Homer City, “by imposing uniform cost thresholds on regulated States, EPA's rule subjects to stricter regulation those States that have done relatively less in the past to control their pollution” and ensures that “[u]pwind States that have not yet implemented pollution controls of the same stringency as their neighbors will be stopped from free riding on their neighbors' efforts to reduce pollution.” EME Homer City, 572 U.S. at 519. The fact that a particular state may have a very small emissions reduction obligation, and so improve downwind air quality by a very small amount, does not call the approach into question. The fact that a state may have less to do to meet the EPA's selected levels of emissions control may reflect that its sources are already well controlled. But whether a state's required reductions under a FIP applying this methodology are large or small, the approach allows for a fair alignment of investments in pollution control across all of the contributing states, which is at the heart of the methodological construct the Court approved in EME Homer City. See Wisconsin, 938 F.3d at 322 (concluding that the EPA reasonably regulated sources in Wisconsin, a contributing upwind state whose available cost-effective reductions would only benefit downwind air quality “by just two ten-thousandths of a part per billion”).

This is not to say that delivering air quality improvement to the downwind receptors is not important—indeed, it is, as the EPA described in the Good Neighbor Plan, a “central component” of the EPA's analysis. 88 FR 36741. If the identified control strategies that were cost-effective on a cost-per-ton basis did not have any effect on downwind air quality at any receptors, this may call into question whether requiring those strategies was worth it. 43 Thus, the Good Neighbor Plan explains that the purpose of the EPA's air quality analysis at Step 3 is to check on whether a level of emissions reduction that appeared cost-effective on a cost-per-ton basis would in fact deliver measurable progress toward attainment of the 2015 ozone NAAQS at the downwind receptors. “These analytical findings cement EPA's identification of the selected EGU and non-EGU mitigation measures as the appropriate control stringency . . . .” 88 FR 36741.

The EPA's analysis in the Good Neighbor Plan demonstrates that with each incremental increase in the stringency of the assessed control strategies, there is also incremental improvement in air quality at the receptors. See, e.g., 88 FR 36743, 36747- 48 (tables showing air quality improvement at each receptor); Ozone Transport Policy Analysis Final Rule TSD at 70 (table C-12) (Ozone Policy TSD) (showing reductions in the maximum contribution of each upwind State to receptors in 2026). 44 Further, the Agency explained that it could not identify a point of diminishing returns within the suite of emissions control strategies that it ultimately selected. 88 FR 36741. The Agency also cautioned that the purpose of this exercise was not to pinpoint a precise “knee-in-the-curve” but to serve as “a useful indicator for informing potential stopping points.” Id. Thus, the EPA's review of the effects of different emissions-reduction strategies on air quality primarily helps the Agency ensure that no impactful emissions reduction strategies have been overlooked and that those selected can be anticipated to deliver reductions in ozone at the identified receptors if applied consistently across all of the upwind states linked to each receptor (including each receptor's home state).

Commenters have not put forward an alternative, more cost-effective methodology or set of emissions-control strategies for reducing ozone at the downwind receptors; rather, they seek to avoid emissions control obligations in one state on the basis that the Good Neighbor Plan may not be operative in another. However, the EPA has an ongoing statutory obligation to issue FIPs for those states where it has issued a SIP disapproval or made a finding of failure to submit. In the absence of information detailing that cost-effective emissions reduction opportunities have been overlooked that would have an even greater benefit on ozone levels at downwind receptors, the EPA reasonably concluded that its identification of emissions limitations consistent with the cost-effective emissions control technologies that it has identified to be widely available at the new and existing EGU and non-EGU sources in the states covered by the Good Neighbor Plan passed its Step 3 air quality check, and these measures would constitute a sufficient and appropriate definition of “significant contribution” for these states. 45

Although the air quality benefits to downwind receptors anticipated in the Good Neighbor Plan would not be fully realized so long as certain states have not yet fulfilled their obligations, this does not serve as a justification for allowing these obligations for those states where the EPA has a responsibility to act to go unaddressed or to be altered. Simply put, the CAA requires each state to address its own contributions to downwind air quality problems, regardless of whether other states have taken action to do so under a SIP or a FIP. That other states contributing to downwind receptors may have their good neighbor obligations stayed or not yet addressed does not relieve other states covered by the Good Neighbor Plan of their own good neighbor obligations under CAA section 110. Given the state-by-state procedural framework of the Act and the need for the EPA to develop equitable and consistent FIPs, it cannot be the case that the EPA must successfully simultaneously resolve all states' good neighbor obligations at once or lose the authority to act. Though the EPA has done its best to achieve consistent, timely, and concordant implementation of these obligations, like the construction of a jigsaw puzzle, each individual piece ( i.e., each individual state's obligations) is necessary to complete the whole picture, and not every piece may be connected at once.

Commenters attempt to fault the EPA for developing a methodology that they claim necessarily depends on the inclusion of other states. Setting aside that for the reasons explained here the methodology does not depend on simultaneous inclusion (or even full inclusion, if states address their good neighbor obligations in some other adequate way through a SIP), the problem commenters identify is not in the particular methodology that the EPA uses but in the science of ozone transport as a multistate problem characterized by meteorological variability and overlapping linkages, coupled with the state-by-state implementation structure of the Act. Under these constraints, any methodology would need to take into account the relative contributions of and the effects of air pollution control technologies in other states.

To perform the air quality check for any particular receptor, it makes sense to consider the effect of emissions reductions from all of the states linked to that receptor, not just those covered by a particular FIP rulemaking, because all states must ultimately discharge their good neighbor obligations whether through an approved SIP or a FIP. Thus, the Step 3 air quality analysis is a “test” that serves to confirm that an appropriate degree of emissions-control stringency has been reached for any given state without overcontrolling. It does not depend on the actual, simultaneous inclusion of a certain number of states in a given rulemaking; however, it appropriately accounts for the reality that multiple states are linked to multiple other states and that the amount of emissions reduction necessary to achieve attainment varies among receptors. This complexity, recognized for years by the EPA and by the Supreme Court in EME Homer City, 572 U.S. at 514-17, makes it analytically inappropriate if not impossible to assign an obligation to each state that is simply proportional to its contribution to a particular receptor. See 88 FR 36683. 46 Nonetheless, that does not prevent the EPA (or for that matter an individual upwind State) from being able to conduct a Step 3 test looking at the effects of uniform control stringencies using a publicly available tool such as the Air Quality Assessment Tool (AQAT). Given the multistate nature of the interstate ozone pollution problem, analysis of the air quality benefit produced by regulating sources in any particular upwind state assumes that other states linked to a common receptor and the home state of that receptor make emissions reductions at a comparable level of emissions control regardless of whether they are covered by the Good Neighbor Plan.

It is true that the EPA's analysis of air quality change at Step 3 uses state-specific data and calibration factors. See Ozone Transport Policy Analysis Final Rule TSD at 43. Commenters may have had uncertainty concerning the respective roles of state-level versus national-level analytical determinations within the air quality analysis at Step 3, with a potential concern being that if the EPA was relying on state-level determinations, then the stringency of the Good Neighbor Plan would be dependent on particular state groupings. But this would over-interpret the role of these particular datapoints in the larger analysis. State-level emissions data and calibration factors ensure an accurate representation of the effects of emissions reductions across the different States. However, this does not imply the Good Neighbor Plan fails to define obligations on a reasonable basis for each state. To the contrary, it confirms that the EPA's analysis already accounts for the emissions reductions and air quality change that can be anticipated from each state individually, rather than merely treating them as an undifferentiated regional mass specific to the group of states included in a particular rulemaking. More importantly, as described above, the regulatory conclusions the EPA drew from the AQAT analysis focused not on the individualized outcomes of each linkage but rather on the averaged and aggregated data drawn from that analysis for the entire country, which “cemented” the EPA's finding that an overall appropriate level of stringency was obtained, without overcontrolling. 88 FR 36741, 36747-48. 47

Illustrating that the Good Neighbor Plan's regulatory conclusions were drawn from this nationwide assessment of air quality effects of different control stringencies, rather than from the particulars of the 23-state grouping included in the Good Neighbor Plan, the EPA's primary Step 3 air quality and overcontrol analysis in the Good Neighbor Plan included any other linked upwind states found at Steps 1 and 2 of the EPA's framework, regardless of whether or not they were included in the Good Neighbor Plan, on the view that this was the most appropriate way to analyze the collective effects of identified stringency levels at Step 3. See Ozone Policy TSD at 46, 55 (explaining that the EPA included all upwind states modeled to be contributing in this assessment, i.e., including states that were not presently included in the Good Neighbor Plan but might be through a future rule, such as Iowa, New Mexico, and Arizona  48 ). Accordingly, the EPA's Step 3 air quality analysis did not rely on a 23-state scope of coverage, and nowhere in the record for the Good Neighbor Plan did the EPA state or imply that its methodology relied on a 23-state scope of coverage. 49 For any particular receptor, the EPA's analysis looked at the group of upwind states linked to that receptor in the modeling (the numbers of which vary), and also assigned the home state for that receptor a “fair share” ( i.e., the same stringency that would be imposed in the upwind states for that receptor). 88 FR 36742 n.238. The analysis did not depend on the actual inclusion of those particular states in the Good Neighbor Plan; it simply looked at what the effect would be if, for any given upwind state and any given receptor, the other upwind linked states and the downwind state were held to the same stringency level.

Stated differently, the EPA's analysis identified a total of 28 states as contributing at Step 2. 88 FR 36709-12. As such, subject to the caveats in notes 48 and 49 supra concerning certain limitations in the data, the EPA appropriately assessed the effect of applying the uniform levels of emissions control stringency across all contributing States to any given receptor ( i.e., varying combinations of the 28 states plus home state for each receptor)—regardless of their inclusion in the Good Neighbor Plan—in evaluating whether the Good Neighbor Plan reasonably addresses the “significant contribution” of any particular state.

The emissions control measures identified at Step 3 do not depend on which particular states adopt cost-effective controls as part of the EPA's analysis of air quality benefits. The role of the air quality analysis is simply to verify that the cost-effective controls identified by the EPA for any particular state would, in fact, have an impact on downwind receptors if they were uniformly adopted in all states contributing to that receptor (and the home state), without overcontrolling. Whether all of those states ultimately adopt those emissions controls, or do so simultaneously, or adopt equivalent controls but on different sources, or may otherwise develop an alternative approach that is approvable for that particular state, does not affect the EPA's determination at Step 3 that those controls, as to the state(s) where the EPA applies them through FIP(s), are cost-effective—and that the sets of sources within any individual state must achieve performance consistent with those controls to satisfy the state's good neighbor obligations.

Thus, the EPA's analysis of air quality benefits at Step 3 was not limited to the specific set of states expected to be covered by a FIP, but appropriately considered the cost-effective emissions reductions available from all upwind states linked to each downwind receptor (as well as the receptor's home state). Consistent with the Act, that methodology functions as an appropriate analytical method to define any particular state's good neighbor obligations for ozone and does so without requiring, or possessing definitive knowledge, that the same methodology would be applied in other states.

Finally, at Step 3, the EPA “tests” whether its selected uniform emissions-control stringency levels result in any “overcontrol.” 88 FR 36749-50. In EME Homer City, the Supreme Court held that the EPA cannot “require[] an upwind State to reduce emissions by more than the amount necessary to achieve attainment in every downwind State to which it is linked.” 572 U.S. at 521. To find overcontrol, the EPA must conclude that the uniform control stringencies the EPA selected produced more emissions reductions and resulting air quality improvements than necessary to resolve all of any state's linkages to downwind receptors, or more than necessary to bring receptors into attainment. In that case, under the overcontrol holding in EME Homer City, the EPA would need to adjust the requirements of the rule to avoid overcontrol. This overcontrol assessment is conducted using the same air quality effects analysis derived from AQAT, described in section III.B.2.b.

If the Good Neighbor Plan were to be suspended from operation in some number of upwind states, this could not result in overcontrol, because the analysis (presented in the Ozone Policy TSD) demonstrates no overcontrol even when all upwind states found to be contributing are included—much less the 23 states included in the originally promulgated Good Neighbor Plan itself. 50 As long as fewer states are making fewer emissions reductions, the downwind receptors cannot be cleaner than they were under the Good Neighbor Plan's original scope. See 88 FR 36749-50.

To ensure a complete response to the commenters, the EPA has reviewed in greater detail all elements of the Step 3 methodology of the Good Neighbor Plan to evaluate whether any components of its analysis pose a concern that the EPA's analytical findings are not severable among the various states. Two elements of the EPA's technology and cost analysis for non-EGUs in the Good Neighbor Plan incorporate analytical methodologies related to some extent to the upwind region covered by the rule and warrant further discussion here. These are: (1) the identification of potentially impactful industries in the “Screening Assessment” used in the Good Neighbor Plan to assist the EPA in narrowing the scope of industries to be included in its non-EGU regulations; and (2) the “weighting” of average costs for two non-EGU industries and a specific emissions unit type (boilers) where multiple control technologies were identified at Step 3. The EPA has reviewed, based on the record for the Good Neighbor Plan, whether either of those elements materially influenced the determination of each state's “significant contribution.” As explained in the “ Use of Screening Assessment to Identify Potentially Impactful Industries” and “ Weighted Averaging Costs” below, they did not. Neither of these aspects of the analysis suggest that the EPA should reach different conclusions as to each covered state's “significant contribution” while the Good Neighbor Plan applies in a different group of States.

For non-EGUs, the EPA elected to screen for industries and emissions-unit types appropriate for analysis of cost-effective NO X reductions. While power plants have consistently been understood to have high levels of controllable NO X emissions and have been included in each good neighbor rulemaking, non-EGUs have not been consistently addressed. See 88 FR 36720. Certain non-EGU industries and emissions units/sources were included in the 1998 NO X SIP Call, but not in subsequent rules, although the EPA had acknowledged that such sources may necessitate regulation to prohibit significant contribution and had in the past analyzed such sources on a “parallel track” to its EGU analysis at Step 3. See 88 FR 36719. For the 2015 ozone NAAQS, the EPA concluded that it could not determine it could eliminate the entirety of the covered states' “significant contributions” to downwind nonattainment by addressing power plants alone. 88 FR 36680-82. To that end, the EPA was required to look beyond the power sector, and when it did so, the EPA determined that certain large industrial sources have substantial amounts of ozone-precursor emissions that could be cost-effectively controlled and therefore, consistent with its longstanding methodology, should be obligated to reduce those emissions, so long as such measures would not result in “overcontrol.” Id. at 36660-61. Because the potential number of industries and source types is large, the EPA used a screening methodology to assist in narrowing the scope of industries to be potentially regulated to those with potential cost-effective NO X reductions.

To screen for industries and emissions-unit types to further assess for cost-effective NO X emissions reductions, the EPA prepared a “Screening Assessment.”  51 In the Screening Assessment, the EPA used emissions and control technology information to screen for industries and emissions unit types where emissions reductions were more likely to be cost-effective and to screen out industries where emissions reductions were less likely to be cost-effective. As part of this analysis, the EPA used air quality criteria to identify how emissions reductions from industries and emissions units would likely benefit downwind areas. See Screening Assessment at 1-3. This analysis used modeled nonattainment and maintenance receptors in 2023 and an inventory of sources in those upwind states that were identified using the air quality modeling that was available at the time the EPA was developing the assessment. 52 See Screening Assessment, appendix A (table A-3). This modeling had identified 27 states as upwind contributors to at least one downwind receptor. In conducting its screening analysis, the EPA took these states to be broadly representative and appropriate for the purpose of screening non-EGU NO X sources by industry across a large set of upwind states, as identified by the then-available modeling. 53

The EPA concluded in finalizing the Good Neighbor Plan that this portion of the non-EGU analysis did not need to be redone on the basis of changes in the scope of coverage of the rule. See Good Neighbor Plan RTC at 104 (“The purpose [of the Screening Assessment] is not a precise replication of exactly which sources contributed exactly how much to any particular receptor during a particular high-ozone event. The purpose is to identify those industries with relatively large emissions sufficient to have interstate effects on ozone levels, and to analyze emissions units within those industries further for cost-effective emissions reduction opportunities.”). Thus, the EPA was clear in the record of the Good Neighbor Plan that the Screening Assessment served an important but limited purpose: to screen for industries and emissions-unit types where further analysis was likely to identify more impactful and less costly emissions reduction opportunities. See also 88 FR 36740; Good Neighbor Plan RTC at 90-92.

Consistent with the statutory language of the good neighbor provision, the EPA could have chosen to forgo this analysis, which assisted the Agency in narrowing the set of non-EGU industries and emissions source types it considered for inclusion in the Good Neighbor Plan, and include more stationary industrial sources of NO X . See CAA section 110(a)(2)(D) (authorizing regulation of “any source or other type of emissions activity” for significant contribution); see also 88 FR 36680-81. 54 However the EPA might have proceeded, in the rule the Agency was appropriately informed by a longstanding understanding of regional-scale ozone transport, which is that the control of any large sources of NO X emissions in linked upwind states will generally beneficially affect downwind ozone levels. 88 FR 36719. While states are afforded discretion under the Act to select the control measures they would prefer to use to meet the Act's requirements, such discretion devolves to the EPA when it steps into the shoes of a state under CAA section 110(c). Id. at 36675 (collecting case law). Within the exercise of that discretion, the EPA's method of proceeding made sense. The EPA's approach provided a technically rigorous method for narrowing the industries in a manner that treated each industry similarly. As the EPA explained in rejecting comments that its modeling projections in the Screening Assessment were too imprecise, the Assessment was done not for the purpose of “project[ing] changes in air quality in an absolute sense,” but rather to “conduct a comparative analysis among different industries,” where the EPA's modeling techniques “would apply consistently and equally to each industry the EPA evaluated.” Good Neighbor Plan RTC at 105. 55

This approach of identifying uniform emissions control opportunities at the industry-level rather than based on a state-by-state or unit-by-unit impact analysis accords with the way the EPA has analyzed emissions control opportunities from both EGUs and non-EGUs throughout the history of implementation of the good neighbor provision. See id. at 92 (quoting 63 FR 57399 (uniformity at industry level “assure[s] equity among the various source categories and the industries they represent”)); 88 FR 36683 (explaining that the EPA's analysis of non-EGUs sources “parallels the analysis previously conducted only for EGUs” and “relies on evaluation of uniform levels of control stringency across all upwind states”). When commenters argued that the EPA had not adequately established that their particular facilities were sufficiently impactful to be worth regulating, the EPA rejected this mode of analysis:

Good Neighbor Plan RTC at 98 (citing 63 FR 57386); see also 88 FR 36685 (similar reasoning supports including new sources of the same type as existing sources in good neighbor implementation plans); id. at 36746-47 (explaining that uniform control by unit type avoids risk of production and emissions shifting). In short, when the EPA must devise a federal solution to interstate ozone transport for one or more states, its objective is to implement measures that are comprehensive, durable, and robust, not to engage in a never-ending game of whack-a-mole at each emissions point.

The Screening Assessment was one step along the way of focusing the Agency's limited resources and narrowing the scope of the regulation of NO X emissions “sources” and “activities”; it was not intended to dictate final determinations regarding “significant contribution.” See, e.g., Good Neighbor Plan RTC at 97-99, 101. The EPA concluded when finalizing the Good Neighbor Plan that its initial Screening Assessment—although based on a slightly different group of states than at final (and the use of other data regarding baseline emissions levels and air quality conditions that was subject to change)—had served its purpose in helping to identify a reasonable starting point for further analysis of non-EGU emissions-control opportunities and did not need to be redone. See 88 FR 36685, 36719.

The Screening Assessment served that purpose for each state where it had a responsibility to regulate non-EGU emissions, and the Good Neighbor Plan's ultimate identification of non-EGU emissions control strategies to eliminate “significant contribution” is likewise sound for any state or grouping of states that may necessitate such federal regulation. Nonetheless, as is always the case with regard to meeting the CAA's requirements, states remain free to address a different set of sources than the EPA identified in the Good Neighbor Plan if they prefer to regulate through a SIP in a manner different than the EPA proceeded in the FIP. Id. at 36842.

In the EPA's final analysis of non-EGU representative costs in the Good Neighbor Plan, for two industries (Pipeline Transportation of Natural Gas and Solid Waste Combustors and Incinerators) and a specific emissions unit type (boilers), the Agency identified a weighted average of costs to address multiple control technologies identified in the Step 3 analysis, rather than a single control technology. 88 FR 36739-40 (table V.C.2-3). For those industries and for boilers, the analysis weighted the average cost according to the control technologies that certain sources, anticipated to be subject to the Good Neighbor Plan across the 20 states with non-EGU requirements, might select as their method of compliance. Representative costs for these sources were calculated by weighting the average costs derived from national data sources by estimated emissions reductions for the applicable control technologies. Non-EGU Memorandum at 5-7. For these industries and for boilers, looking at different groupings of states could result in a different “representative” cost (as displayed in the Non-EGU Memorandum at 10 (table 6)).

However, any differences in the identified “representative” costs for these sources would not affect the outcome of the analysis. For each of these types of sources, the record shows that the costs associated with each of the different control technologies falls within the range of costs that the EPA had concluded were reasonable to impose. See 88 FR 36746-47. In other words, even if a different group of states produces a higher representative cost when weighted by those states' population of sources, the results still fall within the upper bound of the cost-per-ton that the EPA found appropriate. The EPA's conclusion—that the representative cost was reasonable—would be the same.

For example, for RICE, the following table shows the data sources and cost-per-ton estimates the EPA adapted from the CMDB to inform its determination of representative cost for these sources. These were the figures, adjusted to 2016 dollars, that informed the EPA's average cost derived from national data sources used in the weighting to generate a representative cost figure of $4,981/ton for RICE.

Likewise, for MWCs in the Solid Waste Combustors and Incinerators industry, the EPA provided the cost assumptions used for the different control types in appendix B of the Non-EGU Memorandum.

For boilers, the EPA explained that its cost estimates were derived from the CMDB, and the EPA identified a number of assumptions used in developing representative cost figures, which the EPA was clear may not be reflective of all sources' circumstances. Non-EGU Memorandum at 7. Noting that boilers have the highest representative costs among the non-EGU source types, the EPA explained in the Good Neighbor Plan that for individual sources, costs on a per-ton basis could well be higher than the estimated $14,595/ton representative cost, but still be commensurate with the range of costs that informed the identification of the most stringent control strategy selected in the Good Neighbor Plan for EGUs (for which costs at the 90th percentile ran as high as $20,900/ton). 88 FR 36746.

The EPA also emphasized that cost-per-ton figures are only one factor in the Step 3 multi-factor analysis, can vary widely depending on the assumptions used, and the conclusions in the Good Neighbor Plan regarding appropriate stringency levels were informed by a broader review of how widely adopted and proven various control strategies had become. Id. at 36746-47. Because of this, the determinations in the Good Neighbor Plan regarding the appropriate level of emissions control that could be expected of a particular type of source considered not just cost-per-ton estimates, but analysis of which technologies were already in wide use or on which existing standards had been based. Good Neighbor Plan RTC at 62-63. Still, recognizing that individual sources may face circumstances of extreme economic hardship or infeasibility, the EPA also provided a mechanism for sources to obtain alternative emissions limits, among other mechanisms for flexibility in the Good Neighbor Plan, to address outlier cases. See 40 CFR 52.40(e). These provisions are adequate to cover any potential gap in the Good Neighbor Plan's estimate of representative costs.

Accordingly, recalculating the weighted average representative cost for these particular non-EGU sources for any particular state or state grouping would not produce a representative cost falling outside the acceptable range. Thus, any change in the weighted average used to derive “representative” costs for these industries and emissions unit types resulting from looking at some subset of states would not materially affect the analysis.

At Step 4, the EPA establishes regulatory requirements to achieve the “prohibition” of significant contribution identified at Step 3. CAA section 110(a)(2)(D)(i). Under the Good Neighbor Plan, implementation of these requirements occurs through compliance activities at the source level, for both EGUs and for non-EGUs. Contrary to commenters' allegations, and as explained in more detail here, in section III.B.3., the trading program for EGUs, which is a compliance flexibility, does not depend on an interstate trading region for viability. Because all of the obligations of the Good Neighbor Plan can be met by the sources in each state regardless of the application of the Good Neighbor Plan in any other state, the implementation framework at Step 4 is severable on a state-by-state basis.

This can be seen in the structure of the regulations themselves. The Good Neighbor Plan determines on a state-by-state basis which of the EGU and the non-EGU emissions-control programs (or both) should be applied through state-specific FIPs. See 40 CFR 52.38(b)(2) (as amended by 88 FR 36862-63) (identifying states subject to the Good Neighbor Plan's “Group 3” EGU emissions trading program promulgated at 40 CFR part 97, subpart GGGGG); 40 CFR 52.40(c)(2) (as promulgated at 88 FR 36869) (identifying states subject to non-EGU emissions control requirements promulgated at id. 52.41-46). The regulations at 40 CFR part 97, subpart GGGGG and 40 CFR 52.41-46 are uniform in nature. But states are “enrolled” via FIPs into these requirements based on state-specific findings regarding the level of their contribution to other states' ozone problems and how long that contribution is projected to continue into the future. 56

It is through the application of those uniform programs, as appropriate, in each state, via FIPs, that the Good Neighbor Plan eliminates each covered state's significant contribution, as required by CAA section 110(a)(2)(D)(i)(I). The state-specific coverage of the Good Neighbor Plan (for the 23 states for which originally promulgated), by regulatory program, is as follows:

• EGUs in all covered states except California (22 States total) are required to participate in the Group 3 EGU emissions trading program at the level of stringency associated with near term emissions-control strategies that the EPA found can be implemented in 2023 and 2024.

• EGUs in Alabama, Minnesota, and Wisconsin are only subject to this “near-term” stringency level within the Group 3 Trading Program, and no more, because the EPA found these states are no longer linked to downwind ozone problems in the 2026 analytic year.

• EGUs in 19 States (excluding the three states listed in the preceding bullet) that are covered by the Group 3 trading program, are subject to the enhanced stringency in the budgets that takes effect over 2026 and 2027 because these states are linked through the 2026 analytic year.

• The EPA found California has no cost-effective fossil-fuel fired EGU emissions reductions available at the stringency levels determined in the Good Neighbor Plan and so is not subject to the Group 3 Trading Program at all.

• Non-EGUs in 20 states are subject to the uniform emissions control regulations. Because the EPA found these requirements may take up to three years to be implemented ( i.e., until 2026), this number excludes Alabama, Minnesota, and Wisconsin, for the same reason as above: these states are not “linked” in 2026.

These state groupings illustrate how the application of each set of regulatory requirements promulgated in the Good Neighbor Plan depends on the circumstances of each state, as determined through the analytical application of the 4-step interstate transport framework on a nationwide basis. No particular requirement is applicable in all 23 states, and the workability of the Good Neighbor Plan is not premised on an assumption that it must be applicable in specifically 23 states or any particular number of states.

As a practical matter, compliance is achievable through the at-the-source control technologies on which the EPA's determination of “significant contribution” at Step 3 rested (or their equivalents, because the Good Neighbor Plan does not mandate the use of particular control technologies). For non-EGUs, all requirements are established at the source-specific level. See 88 FR 36675. The same is true of EGUs: the stringency of the Good Neighbor Plan is premised on at-the-source, conventional control technologies. See 88 FR 36737-39 (tables identifying technology types). The EPA also designed a market-based, interstate emissions trading program to allow EGU sources to achieve their required emissions reductions as efficiently and cost-effectively as possible, but that trading program is merely a more flexible means of implementing the source-specific requirements that otherwise apply under the Good Neighbor Plan. Indeed, the enhancements the EPA established for the Good Neighbor Plan's trading program (as compared to prior good neighbor trading programs) were meant to ensure the flexibility of the trading program did not undermine the benefits of defining source-specific emissions controls in the first place, which helps assure that EGU sources in each state have eliminated their own significant contribution and thus provided improvements in air quality to the downwind receptors to which their home states are linked. See 88 FR at 36657, 36684, 36752. 57

Commenters may be concerned that without the participation of all states originally included in the Good Neighbor Plan, market liquidity will be affected, allowance prices will increase, and/or there will not be sufficient allowances available for compliance. But the record of the Good Neighbor Plan shows that these concerns are unjustified.

While interstate trading—especially among sources in a large group of states—would generally increase the size of the allowance trading market and thus may increase market liquidity in ways that can improve market efficiency, the use of a trading program does not render implementation of a good neighbor rule in a smaller group of states, or even a single state, unreasonable. That is because, in the first instance, the good neighbor provision regulates EGU sources, not states. Even within a single state, there would be multiple participating sources to populate and benefit from an emissions trading program. Moreover, the history of the EPA's good neighbor rulemakings shows that these trading programs have continued to provide valuable, effective compliance flexibility even where they cover a smaller group of states. 58 Indeed, each state's budget is set in the Good Neighbor Plan at levels that provide sufficient allowances for each state, assuming EGUs achieve a level of reduction equivalent to what can be achieved by the at-the-source technologies identified to eliminate significant contribution. 88 FR 36680. And as explained further in section III.C., all of the EPA's good neighbor rules, including the Good Neighbor Plan, are designed with the understanding that states have the option to develop SIPs that remove their sources from a trading program, which necessarily changes the number of states subject to the FIP, and that the number of states covered by FIPs may otherwise change.

As a consequence, the size of the trading regions used to implement the good neighbor provision has both varied between rules and regularly changed within trading programs over time. This has never posed a challenge to compliance feasibility, nor does the EPA have any evidence of allowance shortages occurring in any of these programs. See 88 FR 36687 (noting opposite problem of banked-allowance surpluses). For example:

• Currently, Georgia is the only state whose EGUs remain in the original CSAPR “Group 1” ozone season NO X trading program, which originally included 25 states.

• In 2021, the Revised CSAPR Update created a 12-state trading region to complete the remedy to significant contribution for the 2008 ozone NAAQS ( i.e., the original “Group 3” program).

• With the Revised CSAPR Update in place, the 2016 CSAPR Update “Group 2” program trading region was reduced from 22 states to 10 states.

In light of these successful implementation experiences and given the at-the-source technologies on which the Good Neighbor Plan's EGU budgets are premised, coupled with other flexibilities, even individual-state trading programs would not be expected to unduly affect market liquidity or make allowances either scarce or unaffordable. To the extent the comments may be read as asserting that smaller trading regions would undermine grid reliability, the EPA disagrees for the same reasons. These comments did not present any data or analysis in support of that contention. The EPA thoroughly explained how the Good Neighbor Plan's regulatory program for EGUs is designed to avoid interfering with resource adequacy and grid reliability, see 88 FR 36771-75.

In short, under the Good Neighbor Plan, the sources in each individual state are fully able to comply without regard to what sources in other states are doing—and even where cooperative market-based mechanisms are available to aid in that compliance, those mechanisms remain sound for smaller state groupings or even at the individual-state level despite a smaller marketplace. 88 FR 36760-61, 36817.

Commenters may also be concerned that the application of the Good Neighbor Plan in some upwind states if not operative in others may create a dynamic of competitive disadvantage. However, even if this were the case (and commenters supplied no evidence that it would be), this would not be sufficient justification to suspend the operation of the rule in states where it lawfully could be in effect. As an initial matter, because the good neighbor provision imposes legal obligations on each state individually, it does not allow individual states to defer compliance with their legal obligations based on circumstances in other upwind states. That is consistent with the provision's purpose, which is intended to ensure equity and fairness among states by prohibiting harmful upwind state emissions that impose regulatory, economic, and health burdens on downwind states. See 88 FR 36658, 36687, 36741; see also 64 FR 28250, 28258-62 (May 25, 1999) (reviewing legislative history of the good neighbor provision and related statutory provisions, which reflects an intent to “equalize the positions of the States with respect to interstate pollution by making a source at least as responsible for polluting another State as it would be for polluting its own State”). The inaction of some upwind states is not an appropriate justification for further relaxing all upwind states' obligations, when it is downwind states who will suffer. That burden will fall not just on downwind communities, but on industries in downwind states with ozone nonattainment problems, who will likely bear greater competitive disadvantages vis-à-vis their competitors in upwind states whose pollution is contributing to the enhanced regulatory burdens they already face under the Act. See EME Homer City, 489 U.S. at 519; Maryland, 958 F.3d at 1200-01, 1203-04. This consideration is particularly acute given the August 3, 2024, attainment date for compliance with the 2015 ozone NAAQS for Moderate nonattainment areas located throughout the country, and the Good Neighbor Plan's objective of further assisting downwind states in time for the 2027 Serious area attainment date. 88 FR 36690, 36695. 59 In any case, in light of the unique ability of the power sector to shift generation among sources in supplying electricity to the power grid, the EPA conducted an analysis in the Good Neighbor Plan of the potential for power generators to shift production and emissions from EGUs in states covered by the Good Neighbor Plan to states not covered by the Good Neighbor Plan and found that the risk, while not zero, was relatively small. Good Neighbor Plan RTC at 604-05. Further, that risk is attendant and unavoidable at the boundaries of any multistate or regional program, regardless of its size and regardless of whether that program uses emissions trading or is based on source-specific emissions limitations, and so not particular to the circumstances here.

In short, the implementation of the regulatory requirements of the Good Neighbor Plan, at Step 4, is achievable by the sources in each state and is therefore severable by state.

In light of the statutory text and context, the Good Neighbor Plan, like prior interstate transport rules, is designed to be modular— i.e., to apply on a state-by-state basis and to whichever states are presently subject to the EPA's responsibility to issue a FIP. That the Good Neighbor Plan functions to appropriately define and prohibit significant contribution on a state-by-state basis, regardless of the number of states covered, can be seen in a number of other features and elements of the Good Neighbor Plan and by reviewing the history of implementation of the good neighbor provision for ozone across prior rulemakings and case law.

First, as directed by the statute and relevant precedent, the EPA must define significant contribution in such a way that sources in “each State” are held responsible for the elimination of their own significant contribution. CAA section 110(a)(2)(D); see 88 FR 36687-88, 36762. The D.C. Circuit's review of a good neighbor rule invalidated in North Carolina v. EPA, and the EPA's subsequent action to address a specific holding in North Carolina concerning regional- versus state-level compliance, helpfully illustrates why, and how, the EPA's current approach avoids any inter-dependency among states' obligations.

In an earlier good neighbor rule, the Clean Air Interstate Rule (CAIR), the EPA quantified emissions reduction requirements at the regional level based on a regional analysis, and then apportioned the responsibility for reducing each pollutant among the contributing states based on either the total allowance allocations for the states' EGUs under the Acid Rain Program (ARP) (in the case of required sulfur dioxide reductions) or the total historical heat input amounts for the states' EGUs, adjusted for the types of fuels used (in the case of required NO X reductions). See 70 FR 25162, 25176 (May 12, 2005); see also 88 FR 36668.

In North Carolina, the D.C. Circuit found that CAIR had unlawfully defined “significant contribution” at a regional level rather than on a state-specific basis. 531 F.3d at 906-08, 919-21. After this ruling, the EPA took care to ensure the successor rule to CAIR, CSAPR, defined and prohibited significant contribution for each State. See 76 FR 48271. It did this by evaluating and selecting appropriate uniform levels of control stringency for the set of upwind states linked to identified downwind receptors and then quantifying and implementing the required emissions reductions resulting from the selected control stringencies independently for each upwind state. See id. In other words, at this point in the analysis, the EPA removed from CSAPR (and all subsequent good neighbor rules) the interdependency of a regional solution that North Carolina had found in CAIR, as this interdependency resulted in a failure to identify each state's own obligations. In CSAPR, each receptor and the states linked to that receptor were evaluated independently, which led the EPA to establish different regional groupings of states with different levels of emissions control stringency ( e.g., in that case, the Group 1 and Group 2 SO 2 control programs). See 76 FR 48252. The courts reviewing CSAPR in EME Homer City further required that the EPA evaluate each state to ensure an otherwise permissible uniform emissions control stringency does not overcontrol the emissions of any particular upwind state. 572 U.S. 489, 521. Taken together, these refinements from CAIR opened up the potential that individual states could be assigned different cost/stringency levels based on whether their receptors (or their linkages to those receptors) would fully resolve at different cost/stringency levels or would fully resolve before additional emissions control measures could be implemented. This state-specific treatment can be seen in the Good Neighbor Plan's recognition that control strategies only available by the 2026 analytic year are not required in Alabama, Minnesota, or Wisconsin, given that their specific linkages were projected to resolve by that year. For the remaining 20 states in the Good Neighbor Plan, no overcontrol was observed in the 2026 analytic year and so no adjustments in the program's stringency were needed. 88 FR 36749. 60

At Step 4, CSAPR maintained an interstate EGU trading program, but the EPA took steps to ensure that this too complied with North Carolina and the statutory obligation to define and prohibit each state's significant contribution. To ensure that each state would eliminate its own significant contribution within the flexible compliance mechanism of an interstate trading program for EGUs, the EPA imposed a constraint on interstate trading within the trading program, through “assurance provisions” that imposed a 3-to-1 allowance-surrender ratio for emissions in excess of a certain percentage of each state's budget. As explained in the Good Neighbor Plan, “The establishment [in CSAPR] of assurance levels with associated extra allowance surrender requirements was intended to respond to the D.C. Circuit's holding in North Carolina requiring the EPA to ensure within the context of an interstate trading program that sources in each State are required to address their good neighbor obligations within the State and may not simply shift those obligations to other States by failing to reduce their own emissions and instead surrendering surplus allowances purchased from sources in other States.” 88 FR 36786.

The features of CSAPR included to address the North Carolina decision have been retained in the Good Neighbor Plan and enhanced to further ensure that each state remains responsible for elimination of its own significant contribution. 61 See id. at 36687-88, 36762 (citing North Carolina, at 906-08, 921; see also Good Neighbor Plan RTC at 42 (“[T]he D.C. Circuit has held that the EPA may not implement an emissions reduction program under the good neighbor provision that fails to ensure that each State has eliminated its own significant contribution. North Carolina, 531 F.3d at 921.”); id. at 48 (same).

Second, also consistent with the state-by-state structure of CAA section 110, as recognized in North Carolina, the EPA made specific findings regarding its authority to promulgate a FIP for each individual state covered by the Good Neighbor Plan. 88 FR 36689 n.109. Notably, the EPA had originally proposed that the Good Neighbor Plan rulemaking would promulgate FIPs for 26 states, not 23. See 87 FR 20036, 20038 (April 6, 2022). The modeling that informed the final rule indicated that Delaware and Wyoming were not linked to any out-of-state receptors, and that Tennessee would only be linked to a new class of “violating monitor” receptors. Thus, these three states were excluded from the final Good Neighbor Plan. Including fewer states in the final rule than were included in the proposal did not alter the approach to defining each remaining states' significant contribution, nor cause any change in each covered state's obligations or the requirements imposed on emitting sources in those covered states. The final modeling also indicated that several additional states were potentially linked and may “contribute significantly,” and thus the EPA acknowledged in the final Good Neighbor Plan that these states' obligations still needed to be addressed. See 88 FR 36658 (identifying Arizona, Iowa, Kansas, New Mexico, Tennessee, and Wyoming as needing to be further addressed in a subsequent action). 62 Critically, under the EPA's analytical approach to the Good Neighbor Plan, the absence of these states from the final Good Neighbor Plan did not, in the Agency's view at the time, pose any challenge to finalizing and moving forward with implementing the Good Neighbor Plan for the states included.

Third, the Good Neighbor Plan, consistent with the statute and like all prior good neighbor federal rulemakings, recognizes that states may choose to replace their FIP with a SIP. See, e.g., 88 FR 36838-42 (discussing in detail various options states have for developing SIPs). When the EPA approves a replacement SIP, that state is withdrawn from the FIP, thus changing the number of states subject to Good Neighbor Plan FIPs. In developing SIPs, states may opt to leave the interstate trading program for EGUs in favor of an adequate, alternative approach to addressing their good neighbor obligations. Id. at 36841-42. This echoes nearly identical discussions included in prior good neighbor rules, see, e.g., CSAPR, 76 FR 48328. Both the proposed and final Good Neighbor Plan contained an extended discussion of how states could exit the Good Neighbor Plan through several options for submitting approvable SIPs. 87 FR 20149-51; see also id. at 20040 (“[T]his proposal will provide States with as much information as the EPA can supply at this time to support their ability to submit SIP revisions to achieve the emissions reductions the EPA believes necessary to eliminate significant contribution.”). In the final Good Neighbor Plan, the EPA explained that it encouraged states to replace their FIP with an approvable SIP, specifically identifying that states could choose to exit the trading program, regulate different sources, or devise adequate alternative methodologies to defining “significant contribution.” See 88 FR 36839.

Fourth, the EPA's experience with prior good neighbor rules informs its determinations concerning the ability of the Good Neighbor Plan to function sensibly regardless of the number of states included. The EPA has removed states from coverage of prior good neighbor rules (including from interstate trading programs) in the past without any loss of program viability. See 88 FR 36669. In addition, at times the EPA has been required to remove specific states from a good neighbor program as a result of adverse court decisions. For example, CSAPR was remanded as to multiple states based on overcontrol concerns in the aftermath of the Supreme Court's decision in EME Homer City, but the D.C. Circuit expressly declined to vacate CSAPR, even as to those states. See EME Homer City Generation, LP v. EPA, 795 F.3d 118, 132 (D.C. Cir. 2015). Subsequent rulemakings moved several states out of the original CSAPR programs, without any issues concerning the feasibility or propriety of the remaining states' obligations. See, e.g., 81 FR 74504, 74506-07 (October 26, 2016); see also 86 FR 23056-57. Similarly, in Michigan, 213 F.3d at 695, the D.C. Circuit vacated the NO X SIP Call as to Wisconsin, Missouri, and Georgia, but left the rule in place and remanded without vacatur as to certain issues as to other states. 63 The modular nature of past good neighbor rules has functioned well and ensured that when the scope of a rule might change based on issues specific to particular states, the rule can continue to function properly for the states that remain covered by the rule.

Finally, there are no statements in the record of the Good Neighbor Plan that suggest the EPA considered the Good Neighbor Plan interdependent among states or dependent on exactly 23 states or any other minimum number of states' participation. 64 To the contrary, the severability section in the Good Neighbor Plan preamble indicated the Agency's expectation that the Good Neighbor Plan could be implemented in individual states as necessary. 88 FR 36693. While in one instance, the Good Neighbor Plan did refer to the “interdependent nature of interstate pollution transport,” see 88 FR 36860, this was in reference to the nature of the pollution problem, not the nature of the EPA's solution. While the variable, interstate nature of ozone transport certainly presents a “thorny causation problem,” EME Homer City, 489 U.S. at 514, the EPA's solution to that problem when promulgating FIPs, through a consistent application of the 4-step interstate transport framework to each state, is expressly designed to avoid the creation of unworkable interdependencies.

By contrast, commenters' apparent view that the analysis underlying the Good Neighbor Plan would change depending on its scope of coverage at any given moment misapprehends how the Good Neighbor Plan is designed and operates. If commenters were correct that the EPA had designed a good neighbor rule that was contingent for any particular state on whether the rule covered other states, this would seemingly introduce an interdependency problem and render the rule invalid under North Carolina. It could also require that the EPA revise a good neighbor rule every time a state opted to impose a SIP to exit its FIP or was moved into a new FIP for a revised NAAQS or to fully address its obligations. The practical problems of such an approach reinforce why this would be an unreasonable way to define states' obligations. It would render good neighbor obligations an ever-shifting target, undermining regulatory certainty for sources and states. The Good Neighbor Plan is designed to avoid such complications.

The comments discussed in section II.B. may be interpreted to argue that the Good Neighbor Plan must be re-analyzed where a court stays, as to a particular state or states, either the rule itself or an antecedent action such as the SIP Disapproval that is a predicate to the exercise of FIP authority under CAA section 110(c)(1). Courts may enter temporary stays of agency actions pending judicial review to preserve the status quo. A stay order is not a final judgment and in itself does not alter or force a change in the substantive analysis an agency has applied in taking the action under review. Thus, stay orders would not alter the analysis of good neighbor obligations for the 2015 ozone NAAQS for any particular state, and the EPA would come to the same result as was already reached, because the analytical underpinnings and the implementation of the Good Neighbor Plan do not depend on the specific number of states that it covers.

The comments may also be interpreted as an assertion that the Good Neighbor Plan would not function or would be unreasonable because stays may be put in place, or because a large amount of the emissions reductions that the Good Neighbor Plan calls for would become unenforceable pending judicial review. However, this does not serve to identify what technical and analytical conclusions the Agency reached through its notice-and-comment rulemaking were flawed or must be changed. The obligations as defined for each state remain promulgated even if they are stayed pending judicial review.

Similarly, the effects of merits holdings in the SIP Disapproval litigation or a vacatur of the SIP Disapproval as to a particular state would not necessarily require a change in the way the EPA may lawfully define that state's good neighbor obligations in a FIP, much less those of other states. To be sure, in general a vacatur of a SIP disapproval would at a minimum require that the FIP remain stayed as to that state, pending action on remand (if that disapproval had been the only basis for the exercise of FIP authority). And the EPA will always comply with the final judgments of the courts. However, the degree to which a change in analysis for a particular state, with respect to the EPA's action on its SIP submission, would be required following any merits holdings in the various cases challenging the SIP Disapproval would depend on the nature of those holdings, as to that state, which is speculative at this time. Whether such holdings would in turn require a change in the EPA's analysis or outcomes concerning other states' SIP submissions is still more speculative, and whether any such changes could then separately impact the EPA's approach to defining the obligations of the state in question through a FIP, much less the obligations of other states via FIPs, is more speculative still.

Several commenters urge that the EPA must simply accept their view, or the view of commenters on the SIP Disapproval, that either or both of the rules are legally or procedurally flawed and will not survive judicial review. The EPA has addressed the substantive arguments raised in such comments elsewhere in the record of the Good Neighbor Plan, or it has indicated that it had addressed those issues in the SIP Disapproval and those matters are not within scope of the rule. See Good Neighbor Plan RTC at 6-8, 149-51, 155; see also section II.B. supra (summarizing responses to comments in the original Good Neighbor Plan record). Where the Agency has reviewed such comments and is satisfied that it is acting lawfully, mere speculation that a reviewing court may disagree cannot supply a reasoned basis for the Agency to stay, modify, or withdraw its rule.

Thus, the methodology and regulatory programs of the Good Neighbor Plan are reasonably designed and operate to define the obligations of each state, in a manner that is severable on a state-by-state basis. While the analytical methods, technical analyses, and policy judgments that informed the Good Neighbor Plan were developed and conducted consistently across the nation, they ultimately produced a determination of significant contribution at the state level. The implementation of the measures necessary to eliminate significant contribution is achievable by the sources within each state, irrespective of other states' participation. It would not matter if there were one state or 50 states in the Good Neighbor Plan—the methodology and the result for any particular state— i.e., the definition of “significant contribution to nonattainment and interference with maintenance” under CAA section 110(a)(2)(D)(i)(I) for the 2015 ozone NAAQS—would remain the same.

The EPA acknowledges that although the substantive circumstances of the states remain constant, the circumstances of the rulemaking and litigation are likely to remain in flux in the short-to-near term. Courts that may grant stays pending judicial review may later affirm the SIP Disapproval or may remand the SIP Disapproval as to particular states, with or without vacatur. Indeed, both the NO X SIP Call and CSAPR were ultimately implemented despite initial stay orders, and notwithstanding that some elements of each rule were remanded without vacatur. See, e.g., EME Homer City, 795 F.3d at 138; Michigan, 213 F.3d at 695. Should there be any remand of the SIP Disapproval, the EPA will have to act on that state's SIP submission again, in accordance with the court's holdings. See Calcutt v. Federal Deposit Ins. Corp., 598 U.S. 623, 629 (2023). And, at any point, any state may submit a new SIP to the EPA, and the EPA will review that SIP. Ultimately, under the statute, every state will need to be covered by either an approved SIP or a FIP that meets the requirements of the good neighbor provision—with the number subject to each potentially changing at any point.

Finally, the EPA's conclusion that the Good Neighbor Plan is severable also reflected the important public health and environmental benefits of the rule in eliminating significant contribution and to ensure to the greatest extent possible the ability of both upwind states and downwind states and other relevant stakeholders to be able to rely on the rule in their planning. 88 FR 36693. Cf. Wisconsin, 938 F.3d at 336-37 (“As a general rule, we do not vacate regulations when doing so would risk significant harm to the public health or the environment.”); North Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008) (noting the need to preserve public health benefits).

The EPA's determinations under the relevant statutory and Executive Order reviews for the Good Neighbor Plan can be found at 88 FR 36856-60. This document provides further explanation in response to comments concerning a particular aspect of the Good Neighbor Plan and does not alter or amend any of the requirements of the rule. Additional information about the relevant statutes and Executive Orders can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

The Office of Management and Budget (OMB) has determined that this document is significant for purposes of review under Executive Order 12866, as amended by Executive Order 14094. Accordingly, the EPA submitted this document to the OMB for Executive Order 12866 review. Documentation of any changes made in response to the Executive Order 12866 review is available in the docket.

Judicial review of the Good Neighbor Plan is in the United States Court of Appeals for the District of Columbia Circuit for the reasons stated in the final rulemaking document. See 88 FR 36859-60. Petitions for review of the Good Neighbor Plan are currently pending in that court, and this document completes proceedings on remand of the record as ordered by that court. State of Utah et al. v. EPA, No. 23-1157 (D.C. Cir. September 12, 2024). The D.C. Circuit retains jurisdiction over the case.

Please refer to the proposed listing rule (88 FR 48414, July 27, 2023) for the Fluminense swallowtail butterfly, Harris' mimic swallowtail butterfly, and Hahnel's Amazonian swallowtail butterfly for a detailed description of previous Federal actions concerning these species. Hereafter in this document, we will abbreviate their common names by removing the word “butterfly” and referring to these species as “swallowtails.”

A species status assessment (SSA) team prepared an SSA report for the Fluminense swallowtail, Harris' mimic swallowtail, and Hahnel's Amazonian swallowtail. The SSA team was composed of Service biologists, in consultation with other species experts. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species.

In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review in listing actions under the Act, we solicited independent scientific review of the information contained in the Fluminense swallowtail, Harris' mimic swallowtail, and Hahnel's Amazonian swallowtail SSA report. As discussed in the proposed rule, we sent the SSA report to seven independent peer reviewers and received four responses. The peer reviews can be found at https://www.regulations.gov. In preparing the proposed rule, we incorporated the results of these reviews, as appropriate, into the SSA report, which was the foundation for the proposed rule and this final rule. A summary of the peer review comments and our responses can be found in the proposed rule (88 FR 48414).

In preparing this final rule, we reviewed and fully considered all public comments received during the comment period, and we make no substantive changes from the July 27, 2023, proposed rule (88 FR 48414). We considered all relevant references provided by commenters in our final determination and incorporated them into this final rule (see Habitat Loss and Degradation and Capture, below).

In the proposed rule published on July 27, 2023 (88 FR 48414), we requested that all interested parties submit written comments on the proposal by September 25, 2023. We also contacted appropriate Federal agencies, scientific experts and organizations, range country CITES authorities and other appropriate agencies, and other interested parties and invited them to comment on the proposal. We did not receive any requests for a public hearing. All substantive information received during the comment period has either been incorporated directly into this final determination or is addressed below.

(1) Comment: One commenter suggested that the length of time between when we were petitioned to list the three swallowtails in 1994 and the proposed listing in 2023 is too long, particularly because we had determined the species warranted listing in 1994 but was precluded by other priorities.

Our response: We recognize the length of time between first making the three Brazilian swallowtails candidate species and this final listing rule. For more information on our process and progress making listing decisions with foreign species, see the most recently published annual review of candidate species, annual notification of findings on resubmitted petitions, and description of progress on listing actions (88 FR 41560; June 27, 2023).

(2) Comment: One commenter claims there is not sufficient evidence and data to list the three swallowtails.

Our response: We are required to make our determination based on the best scientific and commercial data available at the time of our rulemaking. We considered the best scientific and commercial data available regarding the Fluminense swallowtail, Harris' mimic swallowtail, and Hahnel's Amazonian swallowtail to evaluate their status under the Act. We solicited peer review of our evaluation of the available data, and our peer reviewers supported our analysis. Science is a cumulative process, and the body of knowledge is ever-growing. In light of this, the Service will always take new research into consideration.

(3) Comment: One commenter claims the Service needs to assess the economic impact of listing and designating critical habitat for the three swallowtails.

Our response: The Act requires us to use the best scientific and commercial data available in our listing determinations. The Act does not allow us to consider the impacts of listing on economics or human activities over the short term, long term, or cumulatively. No critical habitat will be designated for the Fluminense swallowtail, Harris' mimic swallowtail, nor Hahnel's Amazonian swallowtail. Under our regulations at 50 CFR 424.12(g), we do not designate critical habitat within foreign countries or in areas outside the jurisdiction of the United States.

The Fluminense swallowtail, Harris' mimic swallowtail, and Hahnel's Amazonian swallowtail are all butterflies belonging to the Papilonidae family. Swallowtail butterflies get their name from extended tails on their hindwings; however, not all swallowtails possess this feature. The Fluminense swallowtail ( Parides ascanius ) and Hahnel's Amazonian swallowtail ( Parides hahneli ) are both full species in the multi-species genus Parides (Tyler et al. 1994, pp. 179, 185; Racheli and Olmisani 1998, p. 126; Racheli et al. 2006, pp. 73, 77; Bánki et al. 2022, unpaginated). The Harris's mimic swallowtail, Eurytides (= Mimoides or Graphium ) lysithous harrisianus (Swainson 1822), is a subspecies of E. (= M. ) lysithou s (D'Abrera 1981 and D'Almeida 1966 as cited in Collins and Morris 1985, p. 208; Zhang et al. 2019, p. 3).

All three swallowtails are endemic to Brazil. The Fluminense swallowtail is a black-white-and-red butterfly with a 45-millimeter (mm) (1.77-inch (in)) wingspan (Otero and Brown 1984, p. 2). Mimicking the Fluminense swallowtail, Harris' mimic swallowtail is a similar-looking medium-sized black-white-and-red butterfly with narrow and relatively short tails (Collins and Morris 1985, p. 208). Hahnel's Amazonian swallowtail is a large black-and-yellow butterfly with a wingspan of 80-100 mm (3.14-3.93 in) (Collins and Morris 1985, p. 242).

The Fluminense swallowtail, endemic to sand forests or “restingas,” currently occupies an estimated 36 to 288 square kilometers (km 2 ) of sparse habitat fragments across the swampy coastal forests of the State of Rio de Janeiro and the southern part of the State of Espírito Santo (Soares et al. 2011, p. 69; Seraphim et al. 2016, p. 534; H. Grice et al. 2019b, p. 2; Almeida 2023, unpaginated; Brant 2023, pers. comm.; Rosa et al. 2023, p. 8). Larvae feed exclusively on pipevine (also known as Dutchman's pipe) ( Aristolochia trilobata ), which grows primarily in rich, wet soils and is endemic to restinga habitats (Almeida 2015a, unpaginated; Seraphim et al. 2016, p. 534). Adult Fluminense swallowtails have been documented to feed on more than 30 flowering plant species from more than 12 families (Almeida 2015a, unpaginated).

The Fluminense swallowtail typically has six generations per year and develops from egg to adult in approximately 50-58 days, with adult male life expectancy averaging 12.3 days (Otero and Brown 1984, pp. 5-6, 8-9; Herkenhoff et al. 2013, pp. 29-32; Almeida 2015b, p. 387). Adult males can travel distances of 400 to 1,000 meters (m) but are not found above 60 m of altitude (Soares et al. 2011, p. 69; Herkenhoff et al. 2013, pp. 29, 32; Seraphim et al. 2016, p. 544).

Fluminense swallowtails are known to have a sparse distribution throughout their range; sex ratios are male-dominated; and population numbers increase in the austral spring, peaking in October, correlated with warmer temperatures and lower relative humidity (Herkenhoff et al. 2013, p. 32; dos Santos Pereira et al. 2020, pp. 371-372). The Fluminense swallowtail currently occupies at least eight sites in the State of Rio de Janeiro where the species exhibits a metapopulation structure (a group of separate subpopulations that has some level of mixing) (Seraphim et al. 2016, pp. 534, 544). The species has also recently been seen in the southern part of the State of Espírito Santo, but records of this occurrence are not yet published (Brant 2023, unpaginated). Both the number of subpopulations as well as the numbers of individuals within each subpopulation have continually declined, but total population estimates do not currently exist (Seraphim et al. 2016, p. 535; Almeida 2017, unpaginated; H. Grice et al. 2019b, p. 4).

The Harris' mimic swallowtail currently occupies approximately 96 km 2 in Rio de Janeiro city, Barra de São João, Poço das Antas Biological Reserve, Jurubatiba National Park, and possibly near Vitória City in the State of Espírito Santo. In these areas, the Harris' mimic swallowtail inhabits sand-forest habitats composed of mixed dense and open vegetation adjacent to and in the lowland restinga swamps and in sandy flats above the tidal margins of the coastal Atlantic Forest (Otero and Brown, 1984, p. 10; Collins and Morris 1985, p. 209; Tyler, Hamilton A., Brown, and Wilson 1994, p. 179; Brown, Jr. 2004, pers. comm.; Monteiro et al. 2004, entire; Brant 2023, pers. comm.; Rosa, Ribeiro, and Freitas 2023, p. 8).

Harris' mimic swallowtail feeds on several plant species in the larval stage, and adults feed on nectar from flowering plants (Collins and Morris 1985, p. 209; Tyler, Hamilton A., Brown, and Wilson 1994, p. 179; Xerces Society 2006, unpaginated). The Harris' mimic swallowtail has one brood per year, and individuals can remain in the pupal stage for 9 months to a year (Collins and Morris 1985, p. 209; Tyler, Hamilton A., Brown, and Wilson 1994, p. 179; Almeida 2015a, unpaginated). The adult flight season is from September to February, and flight activity is strongly associated with high humidity and sunshine (Collins and Morris 1985, p. 209).

Population ecology data are limited for Harris' mimic swallowtail. While new and unpublished information indicates more colonies may have recently been discovered, the current best available data indicates only five known colonies of the subspecies, with abundance estimates for only one site from the early 2000s (Tyler, Hamilton A., Brown, and Wilson 1994, p. 179; Brown, Jr. 2004, pers. comm.; Monteiro et al. 2004, entire; Almeida 2015a, unpaginated; Brant 2023, pers. comm.). Information on sex ratio, population structure, and total population size is unknown, but the best available data indicates the total population size is decreasing due to ongoing habitat loss and degradation.

Hahnel's Amazonian swallowtail is very rare with a patchy distribution, inhabiting old sand strips ( i.e., stranded beaches) in remote regions along the tributaries of the middle and lower Amazon River basin in the States of Amazonas and Pará (Brown in litt. 1982, as cited in Collins and Morris 1985, p. 242; New and Collins 1991, p. 29; Tyler et al. 1994, p. 178; Racheli et al. 2006, p. 77; H. Grice et al. 2019c, p. 4). Hahnel's Amazonian swallowtail's location records span a wide range, and, due to lack of recent surveys, it is unknown whether the species persists in these locations (Brown, Jr. 2004, pers. comm.; H. Grice et al. 2019c, p. 2).

Very limited information is available on the ecology, population size, population trends, or sex ratio of Hahnel's Amazonian swallowtail due to its extremely low densities and occurrence in remote regions. We are unaware of any information on the number of generations per year, life span, or duration of each life stage. The species likely feeds on only one or a few larval host plants, and while it has not been identified to species, it is believed to be in the Dutchman's pipe genus, either Aristolochia lanceolato-lorato or A. acutifolia (Collins and Morris 1985, p. 242; Tyler et al. 1994, p. 337; Racheli et al. 2006, p. 13). Like other swallowtail butterflies, it has been seen flying high, at or above the canopy (Brown, Jr. 2004, pers. comm.). The species is known to have a linear and patchy distribution, which might limit gene flow (Collins and Morris 1985, p. 242; H. Grice et al. 2019c, p. 4).

A thorough review of the taxonomy, life history, and ecology of the Fluminense, Harris' mimic, and Hahnel's Amazonian swallowtails is presented in the SSA report (Service 2023, pp. 1-11).

Section 4 of the Act (16 U.S.C. 1533) and the implementing regulations in title 50 of the Code of Federal Regulations set forth the procedures for determining whether a species is an endangered species or a threatened species, issuing protective regulations for threatened species, and designating critical habitat for endangered and threatened species. On April 5, 2024, jointly with the National Marine Fisheries Service (NMFS), the Service issued a final rule that revised the regulations in 50 CFR part 424 regarding how we add, remove, and reclassify endangered and threatened species and what criteria we apply when designating listed species' critical habitat (89 FR 24300). On the same day, the Service published a final rule revising our protections for endangered species and threatened species at 50 CFR part 17 (89 FR 23919). These final rules are now in effect and are incorporated into the current regulations. Our analysis for this final decision applied our current regulations. Given that we proposed listing this species under our prior regulations (revised in 2019), we have also undertaken an analysis of whether our decision would be different if we had continued to apply the 2019 regulations; we concluded that the decision would be the same. The analyses under both the regulations currently in effect and the 2019 regulations are available on https://www.regulations.gov.

The Act defines an “endangered species” as a species that is in danger of extinction throughout all or a significant portion of its range and a “threatened species” as a species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act requires that we determine whether any species is an endangered species or a threatened species because of any of the following factors:

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

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

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

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

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

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

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

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, which is further described in the 2009 Memorandum Opinion on the foreseeable future from the Department of the Interior, Office of the Solicitor (M-37021, January 16, 2009; “M-Opinion,” available online at https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/M-37021.pdf ). The foreseeable future extends as far into the future as the Service and NMFS can make reasonably reliable predictions about the threats to the species and the species' responses to those threats. We need not identify the foreseeable future in terms of a specific period of time. We will describe the foreseeable future on a case-by-case basis, using the best available data and taking into account considerations such as the species' life-history characteristics, threat-projection timeframes, and environmental variability. In other words, the foreseeable future is the period of time over which we can make reasonably reliable predictions. “Reliable” does not mean “certain”; it means sufficient to provide a reasonable degree of confidence in the prediction, in light of the conservation purposes of the Act.

The SSA report documents the results of our comprehensive biological review of the best scientific and commercial data regarding the status of the species, including an assessment of the potential threats to the species. The SSA report does not represent our decision on whether the species should be listed as an endangered or threatened species under the Act. However, it does provide the scientific basis that informs our regulatory decisions, which involve the further application of standards within the Act and its implementing regulations and policies.

To assess the Fluminense, Harris' mimic, and Hahnel's Amazonian swallowtails' viability, we used the three conservation biology principles of resiliency, redundancy, and representation (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency is the ability of the species to withstand environmental and demographic stochasticity (for example, wet or dry, warm or cold years); redundancy is the ability of the species to withstand catastrophic events (for example, droughts, large pollution events), and representation is the ability of the species to adapt to both near-term and long-term changes in its physical and biological environment (for example, climate conditions, pathogens). In general, species viability will increase with increases in (or decrease with decreases in) resiliency, redundancy, and representation (Smith et al. 2018, p. 306). Using these principles, we identified the species' ecological requirements for survival and reproduction at the individual, population, and species levels, and described the beneficial and risk factors influencing the species' viability.

The SSA process can be categorized into three sequential stages. During the first stage, we evaluated the individual species' life-history needs. The next stage involved an assessment of the historical and current condition of the species' demographics and habitat characteristics, including an explanation of how the species arrived at its current condition. The final stage of the SSA involved making predictions about the species' responses to positive and negative environmental and anthropogenic influences. Throughout all of these stages, we used the best available data to characterize viability as the ability of a species to sustain populations in the wild over time. We use this information to inform our regulatory decision.

The following is a summary of the key results and conclusions from the SSA report; the full SSA report can be found at Docket FWS-HQ-ES-2023-0067 on https://www.regulations.gov.

In this discussion, we review the biological condition of each of these three species and their resources, and the threats that influence the species' current and future conditions, in order to assess the species' overall viability and the risks to that viability.

Based on each species' biology described above (see discussion under Background) and in the SSA report (Service 2023, pp. 1-11), the three Brazilian swallowtails all need sufficient quantity, quality, and connectivity of their respective specialized habitats; host plants for larval development and food sources; an abundance of flowering plants for nectar sources for the adult butterflies; and like most species, sufficient conspecific individuals to find a mate. Owing to the limited data available, our assessment of species-level needs is developed further based on general principles as they apply to butterfly biology.

Butterfly viability is fostered—and thereby extinction risk reduced—by having multiple, connected demographically and genetically robust populations distributed widely across heterogeneous environmental conditions (referred to as spatial heterogeneity) and the breadth of diversity (genetic, morphological, physiological, and ecological variation). Spatial heterogeneity fosters asynchronous fluctuations among populations, guarding against concurrent population declines. Maintaining historical patterns and levels of gene flow maintains genetic health (increases heterozygosity), while continued connectivity allows for demographic rescue following population decline or extirpation and supports dispersal in response to shifting conditions. Gene flow and spatial heterogeneity also support continuing adaptive responses, as does conserving genetic diversity across the landscape. Conversely, butterfly species composed of reduced or isolated populations are vulnerable to genetic drift and have reduced adaptive capacity, or the ability to respond to ( i.e., cope with, accommodate, or evolve in response to) environmental change (Forester et al. 2022, p. 507). Habitat loss, degradation, and fragmentation are the main factors that affect all three species' viability throughout their ranges, with additional impacts from climate change, fire, and capture. The Fluminense swallowtail's viability is further impacted by parasitism.

Habitat loss and degradation is the primary factor negatively impacting the three Brazilian swallowtails, with all species experiencing high levels of deforestation in their ranges (Collins and Morris 1985, pp. 22, 67, 152, 209, 242; Tyler et al. 1994, p. 179; Brown, Jr. 1996, pp. 45-46, 52, 57; Seraphim et al. 2016, p. 534). The Fluminense and Harris' mimic swallowtails both occupy the Atlantic Forest, which has experienced an estimated 88 to 95 percent deforestation, and the remaining tracts of its habitat are severely fragmented (Saatchi et al. 2001, p. 868; Monteiro et al. 2004, p. 786; Tabarelli et al. 2005, p. 695; Ribeiro et al. 2009, pp. 1141-1145). Within the Atlantic Forest, the highly specialized restinga habitat required by the Fluminense and Harris' mimic swallowtails comprises only 0.4 percent of its historical distribution, and the remaining patches of restinga habitat are under strong pressure from anthropogenic disturbance (Otero and Brown 1984, pp. 3-6, 10-12; Brown, Jr. 2004, pers. comm.; Rocha et al. 2007, entire; Uehara-Prado and Fonseca 2007, pp. 264-266). The States of Pará and Amazonas, where the Hahnel's Amazonian swallowtail occurs, have also experienced and are continuing to experience high rates of deforestation, losing 66 percent and 11 percent of forests, respectively, over less than three decades (Soares-Filho et al. 2006, p. 250; The Economist 2013, unpaginated; Fraser 2015, unpaginated; Instituto Nacional de Pesquisas Espaciais (INPE) 2017, unpaginated). Deforestation in areas of Pará has continued and accelerated in more recent years, with indication of a threefold increase in yearly rates of deforestation in the period 2018-2021 compared to 2011-2018 (Kuschnig et al. 2023, pp. 4-5). Considering the life history and biology of all three swallowtails, increased and ongoing habitat loss and deforestation has and is continuing to decrease their viability throughout their ranges due to their specialized habitat requirements and patchy distributions.

Across Brazil, climate change is expected to increase temperatures and alter precipitation patterns as well as increase heatwaves and the length of the dry season in the Amazon (The World Bank Group 2021, unpaginated). Studies of butterflies in other fragmented tropical landscapes indicate an adverse effect on species richness as a result of altered precipitation patterns (Shuey 2022, pers. comm.). As progressing global climate change increases storm surge and causes sea level to rise (Intergovernmental Panel on Climate Change (IPCC) 2022, pp. 6-13), the extent of the Fluminense and Harris' mimic swallowtails' habitats is projected to be further reduced. Given the narrow distribution and habitat fragmentation of all three of these Brazilian swallowtails, coupled with reliance on specialized habitat, they are likely to be increasingly susceptible to negative impacts from climatic changes with limited adaptive capacity (Bellaver et al. 2022, p. 654).

Fire is another factor impacting all three swallowtails' viability. The Poco das Antas Biological Reserve, a large reserve where both the Fluminense and Harris' mimic swallowtails occur, has experienced frequent fire since the 1980s following drainage and damming projects in the region (Herkenhoff et al. 2013, p. 29; Sansevero et al. 2020, p. 32). Regarding the Hahnel's Amazonian swallowtail, fire in the Amazon has increased in recent years and is correlated with increased deforestation (Silveira et al. 2020, entire; 2022, entire). Fire has and will likely continue to cause habitat fragmentation and reduce the availability of specialized habitat for the three swallowtails.

Rare and aesthetic butterflies and moths are highly prized by collectors, and all three swallowtails have been collected and sold internationally (Collins and Morris 1985, pp. 155-179; Morris et al. 1991, pp. 332-334; Wang et al. 2023, entire; Williams 1996, entire). Despite some protections under Brazilian and European laws, monitoring the trade of insects is difficult and these existing regulations have minimal impact on regulating trade or collection (H. Grice et al. 2019a, p. 4; 2019b, p. 4; 2019c, p. 4). Both the Fluminense and Harris' mimic swallowtail occur near urban areas, increasing opportunity and ease of capture (Brown, Jr. 2004, pers. comm.). Additionally, species such as these three swallowtails with restricted distributions or localized populations tend to be more vulnerable to overcollection than those with a wider distribution (Brown, Jr. 2004, pers. comm.).

Parasitism has been identified as another stressor of the Fluminense swallowtail, with several parasites known to target the species and some colonies experiencing annual patterns of parasitism (Tavares et al. 2006, entire; Almeida 2015b, p. 388; 2017, pers. comm.). While impacts of parasitism on the species are unknown, parasitism and subsequent mortality of early life stages could potentially contribute to local extirpations of the remaining small, fragmented subpopulations.

Our evaluation of the status of the species takes into account the extent to which threats are reduced or removed as a result of conservation efforts or existing regulatory mechanisms.

All three swallowtails are afforded some protections under Brazilian and international laws, including Brazilian environmental laws for endangered species (Fluminense and Harris' mimic swallowtails), protections in the State of Pará through its list of threatened species (Hahnel's Amazonian swallowtail), and inclusion in Annex B of the European Union (EU) Wildlife Trade Regulations (Fluminense and Hahnel's Amazonian swallowtails) (Snt'Anna et al. 2016, unpaginated; European Commission 2017, p. 802; Biodiversidade 2022, unpaginated). However, due to the difficulty in monitoring the insect trade, these existing regulations have minimal impact, and none of the three swallowtails is listed in the Appendices to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) (H. Grice et al. 2019a, p. 4; 2019b, p. 4; 2019c, p. 4).

Habitat protection is generally lacking for all three swallowtails, although there is some overlap of protected areas in the Fluminense and Harris' mimic swallowtails' ranges. While most extant subpopulations of the Fluminense swallowtail exist outside protected areas, it is afforded some protection where it occurs in small municipal parks and conservation units as well as in one protected reserve, Poço das Antas Biological Reserve (Seraphim et al. 2016, p. 536; Almeida 2017, pers. comm.). The Harris' mimic swallowtail also is afforded some protections from conservation units and the Poço das Antas Biological Reserve, in addition to occupying Jurubatiba National Park, which holds the largest remaining remnant of restinga habitat (Critical Ecosystem Partnership Fund (CEPF) 2001, p. 9; Rocha et al. 2007, pp. 263-269). While some habitat protections are in place in known occurrence locations for the Fluminense and Harris' mimic swallowtail, they occupy a highly urbanized matrix undergoing continuing development pressures (International Finance Corporation (IFC) 2002, entire; Khalip 2007, unpaginated). It is unknown if the Hahnel's Amazonian swallowtail currently occurs in any protected areas, but limited resources for conservation application minimize effectiveness of protected areas in the Amazon (Collins and Morris 1985, p. 234; Laurance and Williamson 2001, p. 1533; H. Grice et al. 2019c, p. 4).

Captive-reared Fluminense swallowtails were released over several years throughout the city of Rio de Janeiro in an attempt to increase subpopulation sizes and genetic diversity, but limited post-release monitoring took place to determine the success of this effort (Instituto Chico Mendes De Conservação Da Biodiversidade (ICMBio) 2007, pp. 82-89; Almeida 2017, pers. comm.; Monteiro 2017, pers. comm.). Captive-rearing may be reinitiated in the future, but it is unclear when or how effective it might be at conserving the species (Almeida 2017, pers. comm.). No captive-rearing efforts for the Harris' mimic swallowtail or the Hahnel's Amazonian swallowtail are known.

The best available scientific and commercial data indicate the Fluminense swallowtail is a narrow endemic with low genetic diversity composed of a single metapopulation that occupies an estimated 36 to 288 km 2 (Tyler et al. 1994, p. 179; Seraphim et al. 2016, p. 534; Almeida 2017, pers. comm.). The remnant subpopulations occur in a highly urbanized landscape undergoing increased isolation from habitat loss, degradation, and fragmentation, with the majority occurring in small habitat patches under high risk of local extinction (Almeida 2015a, unpaginated; Almeida 2017, pers. comm.; Seraphim et al. 2016, p. 534; Monteiro 2017, pers. comm.). While some of the subpopulations occur in protected areas, most are afforded limited or no protections (Soares et al. 2011, entire; Seraphim et al. 2016, pp. 536, 544).

The Fluminense swallowtail's small and isolated colonies are at increased risk of extirpation due to stochasticity and catastrophic events, and although we cannot quantify the level of risk, their vulnerability increases the longer they remain in this impaired condition. The requisite restinga habitat of the Fluminense swallowtail, once the dominant habitat type along the eastern coast of Brazil, was reduced to less than 1 percent of its former range by 2007. Past deforestation resulted in extirpation of multiple colonies and fragmentation and isolation of remaining sites. Considering the severe reduction in the specialized requisite habitat for the Fluminense swallowtail and its reliance on a single larval host plant, the species has limited resiliency and ability to withstand environmental and demographic stochasticity. With only a single metapopulation and a reduced number of subpopulations inhabiting a highly urbanized and fragmented landscape, the Fluminense swallowtail has minimal redundancy to safeguard against catastrophic events. Lastly, while the species is already known to have low genetic diversity and an inherently limited ability to adapt (owing to its specialized habitat requirements, a single larval host plant, and a narrow climatic niche breadth), as subpopulations are increasingly isolated from habitat loss and fragmentation the species' representation and ability to adapt to changing and shifting environmental conditions is further constrained.

The Harris' mimic swallowtail is a narrow endemic that occupies an estimated 96 km 2 across approximately six sites in the State of Rio de Janeiro and possibly one site in the State of Espírito Santo (Collins and Morris 1985, p. 208; Tyler et al. 1994, p. 179; Brown, Jr. 2004, pers. comm.; Monteiro et al. 2004, p. 153; Almeida 2015a, unpaginated; H. Grice et al. 2019a, p. 2; Brant 2023, pers. comm.; Rosa et al. 2023, p. 8). Current population estimates do not exist for any of these sites, and whether Harris' mimic swallowtail still occurs in these locations is uncertain. Two colonies in the City of Rio de Janeiro occur in small patches of vegetation possibly under high risk of local extirpation, and recent observations are scarce of the colony in Barra de São João, which was previously characterized as vigorous and stable (Tyler et al. 1994, p. 179; Brown, Jr. 2004, pers. comm.; Almeida 2015a, unpaginated; H. Grice et al. 2019a, p. 2).

By the early 2000s, the restinga habitat was reduced to only 0.4 percent of its historical distribution with restinga remnants already generally small and surrounded by areas undergoing rapid urbanization or already urbanized (Ribeiro et al. 2009, as cited in Seraphim et al. 2016, p. 534; Rocha et al. 2007, pp. 263, 265). This severely reduced habitat has continued to decline. Over the last 20 years, the forest in the Harris' mimic swallowtail's remaining range has experienced an estimated 2.14 percent loss, and at times protected areas experienced higher rates of deforestation than outside protected areas (Service 2023, p. 21).

In the absence of historical or current population data, the large quantities of habitat loss seen in the range of the Harris' mimic swallowtail suggest the population has likely experienced comparable declines in size. The subspecies has been extirpated from portions of its historical range, and in its once strongest colony it now appears to be scarce. While the Harris' mimic swallowtail occupies two protected areas of intact restinga habitat, has some diversity in habitat types used, and has larva that feed on multiple host plants, its extent of occurrence is severely reduced and is within a highly urbanized landscape, limiting the subspecies' resiliency and ability to withstand environmental and demographic stochasticity. The subspecies' reliance on a severely reduced specialized habitat in a highly urbanized and fragmented landscape with only a few known colonies indicates the Harris' mimic swallowtail has limited redundancy to safeguard against catastrophic events. Finally, the highly urbanized and fragmented landscape that the Harris' mimic swallowtail inhabits likely limits migration and gene flow between colonies, which, coupled with the subspecies' reliance on specialized habitat, hinders the Harris' mimic swallowtail's representation and leaves it vulnerable to changing and shifting environmental conditions.

The Hahnel's Amazonian swallowtail has an estimated extent of occurrence of 189,015 km 2 , has an unknown area of occupancy, and is known from a linear and patchy distribution along the tributaries of the middle and lower Amazon River basin (Collins and Morris 1985, p. 242; New and Collins 1991, p. 29; Tyler et al. 1994, p. 178; Racheli et al. 2006, p. 77; H. Grice et al. 2019c, p. 2). The species is known to be scarce; however, even when rarity is natural, rarer species are at higher risk of extinction than those that are common (Flather and Sieg 2007, entire; Johnson 1998, entire).

Regions where the Hahnel's Amazonian swallowtail was previously known to occur have experienced continued and increasing rates of deforestation (H. Grice et al. 2019a, p. 4). In the period 2000-2020, the range of the Hahnel's Amazonian swallowtail experienced 5.65 percent forest cover loss, and similar trends in forest loss occurred between protected areas and non-protected areas (Service 2023, p. 24). About 85 percent of forest cover remains in the species' known extent of occurrence; however, the species is inherently rare, restricted to a highly specialized habitat, and likely has only a single larval host plant, which limits the species' resiliency and ability to withstand environmental and demographic stochasticity. While the large extent of occurrence provides some level of redundancy to safeguard against catastrophic events, the species has been found in only a few locations, suggesting that localized extirpations from habitat loss or other factors would likely be detrimental to the species. Finally, considering the species' scarcity and patchy linear distribution, gene flow between populations is unlikely, limiting the species' representation and making it vulnerable to changing and shifting environmental conditions.

As part of the SSA report, we developed future-condition scenarios to capture the range of uncertainties regarding future threats and the projected responses by the Fluminense, Harris' mimic, and Hahnel's Amazonian swallowtails. Our future scenarios reflect the conclusion from our analysis that the primary factor influencing the future viability of all three of these swallowtails is habitat loss and degradation resulting from (1) deforestation from land-use change and urbanization and (2) climate-change impacts on the species' climatic niche breadths and habitat availability. The best available data indicates that all three swallowtails' populations and distributions will decline in the future. However, because we have determined that the Fluminense, Harris' mimic, and Hahnel's Amazonian swallowtails meet the Act's definition of endangered species based on their current conditions (see Determination of Status for the Fluminense Swallowtail, Harris' Mimic Swallowtail, and Hahnel's Amazonian Swallowtail, below), we are not presenting the results of the future scenarios in this rule. Please refer to the SSA report (Service 2023, entire) for the full analysis of future scenarios.

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

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 endangered species or 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 determined that the Fluminense swallowtail's distribution and population have been reduced across its range as evidenced by the extensive loss and degradation of its requisite specialized habitat. The remnant subpopulations occur in a highly urbanized landscape undergoing increased isolation from habitat loss, degradation, and fragmentation and consequently are at increased risk of extirpation due to stochasticity and catastrophic events. Coupled with the species' specialized habitat requirements, the isolation and fragmentation of the remaining subpopulations, which make up a single metapopulation, have left the species with insufficient resiliency, redundancy, and representation for its continued existence to be secure.

Thus, after assessing the best scientific and commercial data available regarding threats to the species and assessing the cumulative effect of the threats under the Act's section 4(a)(1) factors, we determine that the Fluminense swallowtail is in danger of extinction throughout all of its range primarily due to historical and ongoing habitat loss and degradation from development and urbanization (Factor A) and the additive threat from capture (Factor B). The existing regulatory mechanisms and other conservation measures are inadequate to address the identified threats to the species (Factor D). The species does not fit the statutory definition of a threatened species because it is currently in danger of extinction, whereas threatened species are those likely to become in danger of extinction within the foreseeable future.

After evaluating threats to the species and assessing the cumulative effect of the threats under the Act's section 4(a)(1) factors, we determined the Harris' mimic swallowtail's distribution and population have been reduced across its range as evidenced by the extensive loss and degradation of its requisite specialized habitat. The remnant colonies occur in a highly urbanized landscape undergoing increased isolation from habitat loss, degradation, and fragmentation and consequently are at increased risk of extirpation due to stochasticity and catastrophic events. Coupled with the species' specialized habitat requirements, the isolation and fragmentation of the remaining colonies have left the subspecies with insufficient resiliency, redundancy, and representation for its continued existence to be secure.

Thus, after assessing the best scientific and commercial data available regarding threats to the species and assessing the cumulative effect of the threats under the Act's section 4(a)(1) factors, we determine that the Harris' mimic swallowtail is in danger of extinction throughout all of its range due to historical and ongoing habitat loss and degradation from anthropogenic activities (Factor A) and the additive threat from capture (Factor B). The existing regulatory mechanisms and other conservation measures are inadequate to address the identified threats to the species (Factor D). The species does not fit the statutory definition of a threatened species because it is currently in danger of extinction, whereas threatened species are those likely to become in danger of extinction within the foreseeable future.

After evaluating threats to the species and assessing the cumulative effect of the threats under the Act's section 4(a)(1) factors, we determined that the viability of the Hahnel's Amazonian swallowtail is limited as a result of extensive habitat loss and degradation coupled with the species' rarity and patchy distribution. The species is inherently rare, is restricted to a highly specialized habitat, and likely has only a single larval host plant, which, when coupled with habitat loss and degradation, makes the species vulnerable to changing and shifting environmental conditions and catastrophic events and has left it with insufficient resiliency, redundancy, and representation for the species' continued existence to be secure.

Thus, after assessing the best scientific and commercial data available regarding threats to the species and assessing the cumulative effect of the threats under the Act's section 4(a)(1) factors, we determine that the Hahnel's Amazonian swallowtail is in danger of extinction throughout all of its range primarily due to ongoing and increasing habitat loss and degradation from deforestation and fire (Factor A) and the additive threat from capture (Factor B). The existing regulatory mechanisms and other conservation measures are inadequate to address the identified threats to the species (Factor D). The species does not fit the statutory definition of a threatened species because it is currently in danger of extinction, whereas threatened species are those likely to become in danger of extinction within the foreseeable future.

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 Fluminense swallowtail, Harris' mimic swallowtail, and Hahnel's Amazonian swallowtail are in danger of extinction throughout all of their ranges and accordingly did not undertake an analysis of any significant portion of their ranges. Because the Fluminense swallowtail, Harris' mimic swallowtail, and Hahnel's Amazonian swallowtail warrant listing as endangered throughout all of their ranges, our determination does not conflict with the decision in Center for Biological Diversity v. Everson, 435 F. Supp. 3d 69 (D.D.C. 2020), which vacated the provision of the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (Final Policy) (79 FR 37578; July 1, 2014) providing that if the Service determines that a species is threatened throughout all of its range, the Service will not analyze whether the species is endangered in a significant portion of its range.

Our review of the best available scientific and commercial data indicates that the Fluminense swallowtail, Harris' mimic swallowtail, and Hahnel's Amazonian swallowtail meet the definition of an endangered species. Therefore, we are listing the Fluminense swallowtail, Harris' mimic swallowtail, and Hahnel's Amazonian swallowtail as endangered species in accordance with sections 3(6) and 4(a)(1) of the Act.

The purposes of the Act are to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions set forth in the Act. Under the Act, a number of steps are available to advance the conservation of species listed as endangered or threatened species. As explained further below, these conservation measures include: (1) recognition, (2) recovery actions, (3) requirements for Federal protection, (4) financial assistance for conservation programs, and (5) prohibitions against certain activities.

Recognition through listing results in public awareness, as well as in conservation by Federal, State, Tribal, and local agencies, foreign governments, 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.

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

Section 7(a)(2) states that each Federal action agency shall, in consultation with the Secretary, ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat.

A Federal “action” that is subject to the consultation provisions of section 7(a)(2) is defined in our implementing regulations at 50 CFR 402.02 as all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States or upon the high seas. With respect to the Fluminense swallowtail, Harris' mimic swallowtail, and Hahnel's Amazonian swallowtail, no known actions would require consultation under section 7(a)(2) of the Act. Given the regulatory definition of “action,” which clarifies that it applies to activities or programs “in the United States or upon the high seas,” the Fluminense swallowtail, Harris' mimic swallowtail, and Hahnel's Amazonian swallowtail are unlikely to be the subject of section 7 consultations, because the entire life cycles of these species occur in terrestrial areas outside of the United States and are unlikely to be affected by U.S. Federal actions. Additionally, no critical habitat will be designated for these species because, under 50 CFR 424.12(g), we will not designate critical habitat within foreign countries or in other areas outside of the jurisdiction of the United States.

Section 8(a) of the Act (16 U.S.C. 1537(a)) authorizes the provision of limited financial assistance for the development and management of programs that the Secretary of the Interior determines to be necessary or useful for the conservation of endangered or threatened species in foreign countries. Sections 8(b) and 8(c) of the Act (16 U.S.C. 1537(b) and (c)) authorize the Secretary to encourage conservation programs for foreign listed species, and to provide assistance for such programs, in the form of personnel and the training of personnel.

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

We may issue permits to carry out otherwise prohibited activities involving endangered wildlife species under certain circumstances. Regulations governing permits for endangered wildlife are codified at 50 CFR 17.22, and general Service permitting regulations are codified at 50 CFR part 13. With regard to endangered wildlife, a permit may be issued for scientific purposes, for enhancing the propagation or survival of the species, or for take incidental to otherwise lawful activities. The statute also contains certain exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.

The Service may also register persons subject to the jurisdiction of the United States through its captive-bred wildlife (CBW) program if certain established requirements are met under the CBW regulations (see 50 CFR 17.21(g)). Through a CBW registration, the Service may allow a registrant to conduct certain otherwise prohibited activities under certain circumstances to enhance the propagation or survival of the affected species, including take; export or re-import; delivery, receipt, carriage, transport, or shipment in interstate or foreign commerce in the course of a commercial activity; or sale or offer for sale in interstate or foreign commerce. A CBW registration may authorize interstate purchase and sale only between entities that both hold a registration for the taxon concerned. The CBW program is available for species having a natural geographic distribution not including any part of the United States and other species that the Service Director has determined to be eligible by regulation. The individual specimens must have been born in captivity in the United States.

It is our policy, as published in the Federal Register on July 1, 1994 (59 FR 34272), to identify, to the extent known at the time a species is listed, specific activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effects of a listing on proposed and ongoing activities within the range of the species.

At this time, we are unable to identify specific activities that would not be considered likely to result in a violation of section 9 of the Act beyond what is already clear from the descriptions of prohibitions or already excepted through our regulations at 50 CFR 17.21. Also, at this time, we are unable to identify specific activities that would be considered likely to result in a violation of section 9 of the Act beyond what is already clear from the descriptions of the prohibitions at 50 CFR 17.21.

Applicable wildlife import/export requirements established under the Act (16 U.S.C. 1538(d)-(f)), the Lacey Act Amendments of 1981 (16 U.S.C. 3371 et seq. ), and 50 CFR part 14 must also be met for imports and exports of the Fluminense swallowtail, Harris' mimic swallowtail, and Hahnel's Amazonian swallowtail. Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Service's Division of Management Authority ( managementauthority@fws.gov; 703-358-2104).

We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act (42 U.S.C. 4321 et seq. ), need not be prepared in connection with listing a species as an endangered or threatened species under the Endangered Species Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

A complete list of references cited in this rulemaking is available on the internet at https://www.regulations.gov in Docket No. FWS-HQ-ES-2023-0067 and upon request from the Branch of Delisting and Foreign Species (see FOR FURTHER INFORMATION CONTACT ).

The primary authors of this rule are the staff members of the Fish and Wildlife Service's Species Assessment Team and the Branch of Delisting and Foreign Species.

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

Regulations governing the summer flounder fishery are found at 50 CFR 648.100 through 648.111. The regulations require annual specification of a commercial quota that is apportioned on a percentage basis among the coastal states from Maine through North Carolina. The process to set the annual commercial quota and the percent allocated to each state is described in § 648.102.

The commercial quota for summer flounder for 2024 was set equal to 8,789,830 pounds (lb; 3,987,000 kilograms (kg)) (88 FR 88266, December 23, 2023). The amount allocated to vessels landing summer flounder in Connecticut is 198,394 lb (89,990 kg).

The NMFS Regional Administrator for the Greater Atlantic Region monitors the state commercial landings and determines when a state's commercial quota has been harvested. NMFS is required to publish notification in the Federal Register advising and notifying commercial vessels and dealer permit holders that, effective upon a specific date, the state's commercial quota has been harvested and no commercial quota is available for landing summer flounder in that state. Based on dealer reports and other available information, the Regional Administrator has determined that the available quota has been harvested. The Marine Fisheries Program of the Connecticut Department of Energy and Environmental Protection determined that its 2024 commercial summer flounder quota has been harvested and closed the state fishery on December 1, 2024. This action promotes consistency between state and Federal management measures.

The regulations at 50 CFR 648.14(n) prohibit federally permitted vessels from landing summer flounder for sale in a state, and prohibit all persons from purchasing or otherwise receiving summer flounder for a commercial purpose after the effective date published in the Federal Register notification that commercial quota is no longer available in that state. Therefore, effective 0001 hours on December 10, 2024, landing of summer flounder in Connecticut by vessels holding Federal summer flounder commercial fishery permits is prohibited for the remainder of the 2024 calendar year, unless additional quota becomes available through a transfer and is announced in the Federal Register . Effective 0001 hours on December 10, 2024, federally permitted dealers are also notified that they may not purchase summer flounder from federally permitted vessels that land in Connecticut for the remainder of the calendar year, or until additional quota becomes available through a transfer from another state.

This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.

The Assistant Administrator for Fisheries, NOAA, finds good cause pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment because it would be contrary to the public interest. This action closes the commercial summer flounder fishery for Connecticut until January 1, 2025, under current regulations. The regulations at 50 CFR 648.103(b) require such action to ensure that summer flounder vessels do not exceed quotas allocated to the states. If implementation of this closure was delayed to solicit prior public comment, the quota for this fishing year will be exceeded, thereby undermining the conservation objectives of the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan. The Assistant Administrator further finds, pursuant to 5 U.S.C. 553(d)(3), good cause to waive the 30-day delayed effectiveness period for the reason stated above.

The Mid-Atlantic Fishery Management Council (Council) and the Atlantic States Marine Fisheries Commission (Commission) cooperatively develop management measures for the summer flounder, scup, black sea bass, and bluefish fisheries. The Council, pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) develops recommendations regarding fisheries in Federal waters seaward of New York, New Jersey, Delaware, Pennsylvania, Maryland, Virginia, and North Carolina. The Commission, pursuant to the Atlantic Coastal Fisheries Cooperative Management Act, addresses fisheries in state waters from Florida to Maine. These bodies work together in the development of complementary FMPs for species like summer flounder, scup, black sea bass, and bluefish that are harvested in both Federal and state waters, and each year, these bodies work together to develop specifications for these fisheries. The Council provides its recommendations to NMFS, and NMFS engages in a Federal rulemaking process by which the agency adopts specifications that become binding on the Federal fisheries. Specifications in these fisheries include various catch and landing subdivisions, such as the commercial and recreational sector annual catch limits (ACL), annual catch targets (ACT), and sector-specific landing limits ( i.e., the commercial fishery quota and recreational harvest limit (RHL)) established for 1 to 3 years at a time. Adjustments to commercial management measures are also considered in the specifications process. The process for measures used to manage the recreational fisheries ( i.e., minimum fish sizes, seasonal closures, and possession restrictions) for these four species occurs separately and is not discussed further in this final rule. This action implements 2025 acceptable biological catches (ABC), as well as the recreational and commercial ACLs, ACTs, commercial quotas, and RHLs for all four species.

This action adopts the Council and the Commission's Summer Flounder Board-recommended 2025 summer flounder catch and landings limits shown in table 1.

The final 2025 state-by-state summer flounder quotas are provided in table 2. As required in Amendment 21 (85 FR 80661), if the commercial quota in any year is higher than 9.55 million lb (4,332 mt), the first 9.55 million lb (4,322 mt) is distributed according to the baseline formula found in the regulations at 50 CFR 648.102(c)(1)(i) (the baseline allocations were established through Amendment 2 (57 FR 57358) and modified by Amendment 4 (58 FR 49937)). Any additional quota is distributed in equal shares to all states except Maine, Delaware, and New Hampshire, which split 1 percent of the additional quota. Because this year's quota is below 9.55 million lb (4,322 mt), the state-by-state allocations are based on the baseline allocations. This final rule includes adjustments for previously unaccounted for 2023 and preliminary 2024 overages to determine the final state quotas.

The fishery for Atlantic cobia in Federal waters is managed under the authority of the Atlantic Coastal Fisheries Cooperative Management Act (Atlantic Coastal Act) by regulations at 50 CFR part 697.

Separate migratory groups of cobia are managed in the Gulf of Mexico and Atlantic. Atlantic cobia is managed from Georgia through New York [50 CFR 697.2(a)]. The southern boundary for Atlantic cobia is a line that extends due east of the Florida and Georgia state border at 30°42′45.6″ N latitude. The northern boundary for Atlantic cobia is the jurisdictional boundary between the Mid-Atlantic and New England Fishery Management Councils, as specified in 50 CFR 600.105(a). The fishing year for Atlantic cobia is January 1 through December 31 [50 CFR 697.28(a)].

Amendment 31 to the Fishery Management Plan (FMP) for Coastal Migratory Pelagic Resources of the Gulf of Mexico and Atlantic Region and the implementing final rule removed Atlantic cobia from Federal management under the Magnuson-Stevens Fishery Conservation and Management Act, while also implementing comparable regulations in Federal waters under the Atlantic Coastal Act (84 FR 4733, February 19, 2019).

The Atlantic States Marine Fisheries Commission (ASMFC) approved Amendment 1 to the Interstate FMP for Atlantic Cobia in 2019 and Addendum 1 to Amendment 1 in 2020. Amendment 1 and Addendum 1 provided for an increase in the commercial quota and transferred quota monitoring responsibility to the ASMFC. NMFS subsequently issued comparable regulations for Amendment 1 and Addendum 1 on November 8, 2021 (86 FR 61714, November 8, 2021). That final rule increased the commercial quota to 73,116 pounds (lb) or 33,165 kilograms (kg) and transferred quota monitoring responsibility from NMFS to the ASMFC [50 CFR 697.28(f)(1)]. Additionally as described in that final rule, during the fishing year if the ASMFC estimates that the sum of commercial landings (cobia that are sold), reaches or is projected to reach the commercial quota, then the ASMFC will notify NMFS of the need for a commercial closure in Atlantic Federal waters for Atlantic cobia [50 CFR 697.28(f)(1)].

Atlantic cobia are unique among federally managed species in the U.S. southeast region, because no commercial permit is required to harvest and sell them, and so the distinction between the commercial and recreational sectors is not as clear as with other federally managed stocks. However, for purposes of this temporary rule, Atlantic cobia that are harvested and sold are considered commercially caught, and those that are harvested and not sold are considered recreationally caught.

On November 18, 2024, the ASMFC notified NMFS that commercial landings information indicated that the commercial quota is estimated to be met by December 18, 2024. Accordingly, the ASMFC requested that NMFS close commercial harvest of Atlantic cobia in Atlantic Federal waters on December 18, 2024, to prevent the commercial quota from being exceeded.

Regulations for the commercial sector of Atlantic cobia at 50 CFR 697.28(f)(1) require that NMFS file a notification with the Office of the Federal Register to prohibit the harvest, sale, trade, barter, or purchase of Atlantic cobia for the remainder of the fishing year when commercial landings reach or are projected to reach the commercial quota specified in 50 CFR 697.28(f)(1). Accordingly, the commercial sector for Atlantic cobia is closed in Federal waters beginning on December 18, 2024, and will remain closed until the start of the next fishing year on January 1, 2025.

The recreational bag and possession limits for Atlantic cobia apply while the recreational sector is open [50 CFR 697.28(e)]. The prohibition on sale and purchase does not apply to Atlantic cobia that were harvested, landed ashore, and sold before December 18, 2024, and were held in cold storage by a dealer or processor.

NMFS issues this action pursuant to the Atlantic Coastal Act. This action is required by 50 CFR 697.28(f)(1) and is exempt from review under Executive Order 12866.

These measures are exempt from the procedures of the Regulatory Flexibility Act, because the temporary rule is issued without opportunity for prior notice and comment.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment, as such procedures are unnecessary and contrary to the public interest. Such procedures are unnecessary because the regulations associated with the commercial quota and closure provisions for Atlantic cobia have already been subject to notice and comment, and all that remains is to notify the public of the commercial closure for the remainder of the 2024 fishing year. Prior notice and opportunity for public comment on this action is contrary to the public interest because of the need to immediately implement the commercial closure to protect Atlantic cobia, since the capacity of the fishing fleet allows for rapid harvest of the commercial quota. Prior notice and opportunity for public comment would require time and would likely result in a harvest that exceeds the commercial quota.

For the reasons just stated, there is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in the effective date of this action.