Please refer to Docket ID NRC-2019-0108 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:

• Federal Rulemaking Website: Go to https://www.regulations.gov/ and search for Docket ID NRC-2019-0108.

• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly available documents online in the ADAMS Public Document collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select “ Begin Web-based ADAMS Search.” For problems with ADAMS, contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to pdr.resource@nrc.gov. The “Instructions for Completing Nuclear Material Transaction Reports,” NUREG/BR-0006 and “Instructions for and the Preparation and Distribution of Material Status Reports,” NUREG/BR-0007 are available in ADAMS under Accession Nos. ML19214A180 and ML19212A768.

• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.

Please include Docket ID NRC-2019-0108 in your comment submission.

The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at https://www.regulations.gov/ as well as enter the comment submissions into ADAMS. The NRC does not routinely edit comment submissions to remove identifying or contact information.

If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.

NUREG/BR-0006 and NUREG/BR-0007 provide instructions for reporting information to the Nuclear Materials Management and Safeguards Systems (NMMSS), as required by NRC regulations. The NRC is revising these documents to provide additional clarification and examples of nuclear material transaction reports and nuclear material status reports, to aid the licensee community in preparing clear and accurate submittals. The draft revisions of these NUREGs are being made available for public comments to allow opportunity for further suggestions to improve their clarity and utility.

The Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., provides among other things, that “[e]ach agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.” (5 U.S.C. 553(e)) DOE received similar petitions from Ms. Jill Adams and the State of Ohio, as described in this notice and set forth verbatim below, requesting that DOE issue regulations to (1) allow States and their agents to collaboratively develop new nuclear technologies with DOE, and under the authority of DOE, to include the development of small nuclear reactors, and (2) establish programs that would allow States to develop collaborative nuclear and non-nuclear laboratories with DOE on currently licensed or formerly licensed nuclear facility grounds, and allow for the construction of collaborative nuclear experimentation containment facility testing platforms. The petitioners argue that DOE should take such actions pursuant to the authority granted by the Atomic Energy Act of 1954, Public Law 83-703, as amended. Petitioners cite various provisions found at 42 U.S.C. 2013 and 2021 in support of this position. In publishing these petitions for public comment, DOE is seeking views on whether it should grant the petitions and undertake a proposed rulemaking or other appropriate action. By seeking comment on whether to grant these petitions, DOE takes no position at this time regarding the merits of the suggested rulemaking or the assertions made by the Petitioner.

DOE welcomes comments and views of interested parties on any aspect of the petitions.

DOE invites all interested parties to submit in writing by November 13, 2019 comments and information regarding these petitions.

Submitting comments via http://www.regulations.gov. The http://www.regulations.gov web page will require you to provide your name and contact information prior to submitting comments. Your contact information will be viewable to DOE Building Technologies staff only. Your contact information will not be publicly viewable except for your first and last names, organization name (if any), and submitter representative name (if any). If your comment is not processed properly because of technical difficulties, DOE will use this information to contact you. If DOE cannot read your comment due to technical difficulties and cannot contact you for clarification, DOE may not be able to consider your comment.

However, your contact information will be publicly viewable if you include it in the comment or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. Persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.

Do not submit to http://www.regulations.gov information for which disclosure is restricted by statute, such as trade secrets and commercial or financial information (hereinafter referred to as Confidential Business Information (CBI)). Comments submitted through http://www.regulations.gov cannot be claimed as CBI. Comments received through the website will waive any CBI claims for the information submitted. For information on submitting CBI, see the Confidential Business Information section.

DOE processes submissions made through http://www.regulations.gov before posting. Normally, comments will be posted within a few days of being submitted. However, if large volumes of comments are being processed simultaneously, your comment may not be viewable for up to several weeks. Please keep the comment tracking number that http://www.regulations.gov provides after you have successfully uploaded your comment.

Submitting comments via email, hand delivery, or postal mail. Comments and documents via email, hand delivery, or postal mail will also be posted to http://www.regulations.gov. If you do not want your personal contact information to be publicly viewable, do not include it in your comment or any accompanying documents. Instead, provide your contact information on a cover letter. Include your first and last names, email address, telephone number, and optional mailing address. The cover letter will not be publicly viewable as long as it does not include any comments.

Include contact information in your cover letter each time you submit comments, data, documents, and other information to DOE. If you submit via postal mail or hand delivery, please provide all items on a CD, if feasible, in which case it is not necessary to submit printed copies. No telefacsimiles (faxes) will be accepted.

Comments, data, and other information submitted electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, written in English, and free of any defects or viruses. Documents should not include any special characters or any form of encryption, and, if possible, they should carry the electronic signature of the author.

Campaign form letters. Please submit campaign form letters by the originating organization in batches of between 50 to 500 form letters per PDF or as one form letter with a list of supporters' names compiled into one or more PDFs. This reduces comment processing and posting time.

Confidential Business Information. Pursuant to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit via email, postal mail, or hand delivery two well-marked copies: One copy of the document marked “Confidential” including all the information believed to be confidential, and one copy of the document marked “Non-confidential” with the information believed to be confidential deleted. Submit these documents via email or on a CD, if feasible. DOE will make its own determination about the confidential status of the information and treat it according to its determination.

Factors of interest to DOE when evaluating requests to treat submitted information as confidential include: (1) A description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known by or available from other sources; (4) whether the information has previously been made available to others without obligation concerning its confidentiality; (5) an explanation of the competitive injury to the submitting person which would result from public disclosure; (6) when such information might lose its confidential character due to the passage of time, and (7) why disclosure of the information would be contrary to the public interest.

It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).

DOE considers public participation to be a very important part of its process for considering rulemaking petitions. DOE actively encourages the participation and interaction of the public during the comment period. Interactions with and between members of the public provide a balanced discussion of the issues and assist DOE in determining how to proceed with a petition. Anyone who wishes to be added to DOE's mailing list to receive future notices and information about this petition should contact Office of Nuclear Energy program staff at (202) 586-7856 or via email at Mark.Yale@hq.doe.gov.

The Secretary of Energy has approved publication of this notice of petitions for rulemaking.

Part 1003 was promulgated in 1995 to replace 10 CFR part 205, a procedural regulation designed to apply to matters involving the former oil price and allocation control regulations effective during the 1970s. As the oil price and allocation control program wound down, the OHA's jurisdiction expanded to include other programs. Part 1003 was intended to apply to most proceedings before the OHA that did not involve the former federal petroleum price and allocation control regulations. Namely, part 1003 contained a number of subparts that set forth procedures specific to the following types of proceedings: Requests for exceptions or exemptions from DOE rules, appeals of DOE orders, applications for stays, applications for modification or revision of DOE orders, requests for OHA conferences and hearings, and requests for special redress relief or other extraordinary assistance.

Since 1995, the OHA's jurisdictional portfolio has changed significantly, shifting away from petroleum product refund proceedings to include primarily personnel security hearings, Freedom of Information Act appeals, and proceedings under the DOE's Contractor Employee Whistleblower Protection Program. Most of the proceedings that OHA oversees currently are governed by their own procedural regulations and are not subject to the procedures found in part 1003. As the nature of the OHA's work has evolved and technology has improved, the procedures set forth in part 1003 have become more cumbersome and less effective. Part 1003 proceedings involve fewer parties, few to no hearings, and fewer stakeholders than other types of OHA proceedings. In addition, Part 1003 mandates outdated methods of communication that are far less efficient than modern methods. Accordingly, the OHA has decided to propose revisions to part 1003 as described in Section II.

The OHA is proposing a number of updates to part 1003. Specifically, the OHA seeks to eliminate the subparts specific to individual types of proceedings and to consolidate those procedures in a single part with general applicability. The new consolidated procedures would govern all proceedings before OHA where a comprehensive procedural scheme is not found in another DOE regulation, including appeals of DOE orders, requests for exceptions or exemptions from DOE rules, and requests for modification or rescission of DOE orders. This proposal is intended to simplify and streamline the procedures for appearing before the OHA, and to reduce cost and administrative burdens for parties.

In executing its duties under the revised part 1003, the OHA intends to make use of the regulations.gov federal portal. Currently, except in unusual circumstances, all documents submitted in exception relief proceedings are posted to an e-docket on that website and are available for public comment through the website as well. The OHA would expand this practice to all proceedings conducted under part 1003. In addition, OHA proposes to eliminate requirements that communications and disclosures under part 1003 be transmitted by any one particular method, allowing for greater flexibility as technology changes. For instance, the proposed revisions do not mandate a particular method by which service must be carried out, and the OHA may allow service by a method other than those specified in the regulation.

1. Applicability to Other Regulations. The OHA proposes to clarify that part 1003's procedures are not applicable to proceedings that are subject to specific and comprehensive procedural schemes found in other parts of DOE's regulations. Examples of regulations with comprehensive adjudicative procedures include 10 CFR parts 708, 710, 712, and 1004.

2. Elimination of Subparts. The OHA proposes to consolidate subparts B through G of the current part 1003 into a single part. Each of subparts B through G in the current part 1003 sets forth procedures for a different type of proceeding, such as stay proceedings, appeal proceedings, and exception relief proceedings. Many of the procedures contained in these subparts—such as the procedures for filing a petition and providing notice to interested persons—are duplicative. The primary area where the subparts differ is in their descriptions of the legal standards applicable to each type of proceeding. Thus, the OHA believes that consolidation of the subparts—while still differentiating the legal standards specific to each type of proceeding—would simplify litigation before the OHA and make part 1003 more accessible to pro se parties.

Multiple parts of DOE's regulations make reference to subparts B through G as they appear in the current part 1003. With the proposed consolidation of the subparts, rather than attempt to identify and amend each and every reference throughout all of DOE's regulations, the OHA proposes to add § 1003.1(b), which clarifies that all such references shall be considered to refer to part 1003 generally, rather than to a specific subpart. For example, DOE's Energy Conservation Program for Consumer Products, at 10 CFR part 430, states, “To exhaust administrative remedies, any person aggrieved by an action under this section must file an appeal with the DOE's Office of Hearings and Appeals as provided in 10 CFR part 1003, subpart C.” 10 CFR 430.27(m). Under the proposed part 1003, subpart C would not exist, but in accordance with proposed § 1003.1(b), the general procedures contained in part 1003 would still apply to the appeals process required by § 430.27(m).

1. The OHA proposes to add a definition of “Alternative Dispute Resolution” (ADR). The OHA is proposing to add a provision to the regulation encouraging ADR and an explicit definition is necessary for clarity.

2. As part of its effort to consolidate the multiple iterations of procedures contained in the current part 1003 into a single procedure, the OHA proposes to use the term “petition” to refer to all initial filings in all proceedings governed by part 1003. A petition could be an appeal, an application for exception, or another type of filing that initiates a proceeding before OHA. Use of the single term “petition” is intended to increase the clarity and accessibility of part 1003. Similarly, any person who files an initial submission with the OHA would be called a “petitioner” for purposes of the regulation. However, in practice, the person could still be referred to as an appellant, applicant, or other appropriate designation.

3. The OHA proposes to define “verified email address,” a new term created to assist with electronic notice and filing.

4. The OHA proposes to define the terms “action,” “Decision and Order,” “final disposition of DOE,” “party,” and “participant.” Defining these terms will allow for greater precision and specificity in language and will reduce ambiguity in the regulation.

The OHA proposes to allow for methods of service other than the U.S. Mail. Specifically, the OHA proposes to allow service via email. This would increase efficiency and reduce costs for parties. The OHA also proposes to allow for service via unspecified alternative methods, allowing for flexibility as communications technology evolves. For example, a petitioner could request that the OHA allow him to send a link to the e-docket on the regulations.gov federal portal in lieu of sending copies of the documents.

The OHA proposes to mandate that all documents filed with the OHA be filed electronically, except when permission is granted to file in another manner. Electronic filing is faster, more reliable, and more cost-efficient than paper filing. It also coordinates with DOE electronic records retention methods. However, not everyone can file electronically, and some materials are better mailed or faxed for logistical reasons. Accordingly, any person wishing to file via non-electronic means could contact the OHA and request permission to do so. The OHA would consider granting such requests in circumstances where good cause has been shown why the document cannot or should not be filed electronically.

The consolidated procedures proposed by the OHA would be initiated by the filing of a petition by a person who believes he has been adversely affected by a DOE decision or action, or who is otherwise authorized by law.

1. Form and Elements of a Petition. The proposed revisions contain requirements for the form and elements of a petition. While the proposed form is substantially similar to the form of like filings under the current regulation, the proposed elements are more specific and comprehensive and are intended to reduce the need for information requests from the OHA. Under the current regulation, the required contents of a filing are often insufficient for the OHA to determine the relief sought, the circumstances the filer believes warrant relief, and the factual and legal justifications for relief. By requiring such information in the initial filing, the proposed regulation would ensure that petitions give the OHA a clearer picture of what the petitioner is seeking and why, thereby streamlining the initial phases of the proceeding. The OHA believes that this change has the potential to reduce its time to decision by weeks or, in some cases, months.

2. Motions for Stay. The OHA also proposes to require that motions for a stay be filed at the same time as petitions. A stay is a type of order that has the effect of pausing a legal process, such as a proceeding or order. Unlike under the current part 1003, where the procedure for requesting a stay is set forth in its own subpart, subpart D, the consolidated procedures the OHA proposes in this proposed rulemaking do not apply to requests for stays. Under the proposed part 1003, the OHA would issue stays as interlocutory orders, rather than as Decisions and Orders. This treatment mirrors that of the federal courts and is logical in the sense that a stay is nearly always incidental to a substantive proceeding. The legal standard for consideration of stay requests is outlined in previous OHA decisions, which have precedential authority. Motions and interlocutory orders would be posted to the e-docket, allowing the public an opportunity to comment.

The requirement that a motion for a stay be filed concurrently with a petition would serve to streamline proceedings by giving early notice to the OHA, DOE as a whole, and potentially aggrieved or interested parties that a stay is being sought. However, if a petitioner can show good cause as to why it should be able to file a motion for stay later, the proposed revisions would allow the OHA the flexibility to fairly address the situation.

The OHA proposes to allow notice via electronic or other means. Part 1003 was created before electronic communication was common and, as email became ubiquitous over time, the specific requirement that notice be served through the U.S. Mail has created unnecessary burdens, both administrative and financial, for litigants. The proposed revisions would allow for greater flexibility in notice requirements so that litigants would not be forced to use a single method of communication after it becomes outdated. Additionally, the proposed revisions would allow the OHA to require additional or alternative notice if the standard provisions prove ineffective or overly burdensome.

The OHA proposes to add a section encouraging the use of Alternative Dispute Resolution. This reflects DOE's policy toward dispute resolution, while underscoring the benefits of the process.

1. Timing. The OHA proposes to impose time limits, mandatory communication with litigants, and procedural guidelines on its evaluation of petitions. These changes are designed to provide litigants with increased guidance and certainty regarding when they will receive a decision and how that decision will be reached.

2. Conduct of the Proceedings. The OHA proposes to specify that the OHA Director has the judicial powers necessary to conduct proceedings, including, but not limited to, granting or denying motions and entering interlocutory orders. This provision would allow the OHA Director to exercise the full range of judicial powers—even those not specified in the regulation—that are necessary to ensure a fair and full evaluation of the petition. For example, while discovery is not typically a part of part 1003 proceedings, it may be ordered by the OHA Director in certain cases where appropriate.

3. Hearings. The majority of proceedings brought under Part 1003 in the last several years have not required a hearing. Through use of the regulations.gov rulemaking portal, interested parties can comment on proceedings at length without having to travel to a hearing to put their concerns on the record. Accordingly, the OHA proposes to eliminate the subpart on hearings—current subpart F—and insert a new section outlining the criteria used to determine whether a hearing should be conducted. Nothing in this proposed regulation prohibits a party from requesting a hearing.

1. The OHA proposes to change the term “Special Report Order” to “information request,” which the OHA considers a more accurate description of the tool used by the OHA to elicit information related to a proceeding.

2. The OHA proposes to add standards for oaths or affirmations. The oath or affirmation must now refer the witness to federal statutes describing penalties for perjury and falsification.

The OHA understands 18 U.S.C. 1001 and 18 U.S.C. 1621 to apply to all statements and submissions to the OHA, whether oral or written. Therefore, the OHA proposes to remove duplicative references to these statutes from the regulation.

The OHA proposes to expand upon and codify the circumstances under which it may dismiss petitions. The proposed revisions separate dismissals into two categories: Dismissal with prejudice and dismissal without prejudice. A dismissal is considered a Decision and Order.

Dismissal with prejudice ends a proceeding and precludes the petitioner from bringing the same petition again. This is appropriate when circumstances argue that further legal proceedings would be inappropriate or duplicative. The proposed reasons for dismissal with prejudice relate primarily to justiciability issues (such as mootness) and substantial, willful noncompliance with procedures (such as provision of false statements under oath or refusal to comply with an OHA order).

Dismissal without prejudice ends a proceeding without precluding the petitioner from filing another petition with regard to the same subject matter. The proposed reasons for dismissal without prejudice relate primarily to technical and procedural errors by the petitioner—such as failure to include a required element of the petition or failure to timely provide information at the OHA's request. The proposed reasons for dismissal without prejudice also include the petitioner's failure to state a claim upon which the OHA can grant relief. This is analogous to dismissal under Federal Rule of Civil Procedure 12(b)(6), and the OHA applies the same legal standard used by federal courts to determine whether a petitioner has failed to state a claim upon which relief can be granted. Finally, the proposed reasons for dismissal without prejudice also include circumstances in which the OHA does not have enough information to make a decision. Dismissal under these circumstances allows the OHA to avoid making an uninformed decision.

The OHA proposes a default standard of review for petitions not otherwise governed by an authority that prescribes a standard of review. The proposed standard is similar to the standard set forth in the current § 1003.36(c). A petitioner that seeks relief from an action of the DOE must show that the DOE acted arbitrarily, capriciously, or in violation of law, rule, regulation, or delegation. Under this standard, the OHA would pay deference to the subject matter expertise of the DOE component whose action is under review, while at the same time ensuring that such component acted legally and with appropriate consideration.

The OHA's standard of review for petitions filed under the authority of 42 U.S.C. 7194 will continue to include a consideration of whether the petitioner has made a showing of serious hardship, gross inequity or unfair distribution of burdens.

The OHA proposes to require that a decision granting or denying the relief sought by a petitioner be presented in a particular format, referred to as a Decision and Order. The Decision and Order would include the legal and factual basis for the decision, state whether it is the DOE's final agency action on the matter, and state what review is available to the parties.

The OHA proposes that there be no administrative appeal of a Decision and Order, except as provided by federal statute. This proposal stems from logistical necessity. Decisions under part 1003 are issued by the OHA Director. There is no higher authority in the OHA to which a person could appeal. Furthermore, as the OHA's jurisdiction under part 1003 is almost entirely delegated from the Secretary of Energy, there is no other entity within the DOE with authority to make decisions or hear appeals on such matters.

The OHA proposes to allow for reconsideration of a Decision and Order if the motion to do so is filed by the 20th day after the Decision and Order is made available to the public. The Director would grant a motion for reconsideration only if he determines that the Decision and Order contains an error that materially influenced the proceeding's outcome.

Interested persons are invited to participate in this rulemaking proceeding by submitting data, views, or arguments. Written comments should be submitted to the address, and in the form, indicated in the ADDRESSES section of this notice of proposed rulemaking. To assist in DOE's review of the comments, interested persons are asked to refer to specific proposed rule provisions, if possible.

If you submit information that you believe to be exempt by law from public disclosure, you should submit one complete copy, as well as one copy from which the information requested to be exempt by law from public disclosure has been redacted. DOE is responsible for the final determination regarding disclosure or nondisclosure of the information, and for treating information appropriately under the Freedom of Information Act and DOE implementing regulations at 10 CFR part 1004.

It was determined that this action is not a significant regulatory action subject to review under Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (Oct. 4, 1993) by the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB).

On January 30, 2017, the President issued Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs.” That Order stated the policy of the executive branch is to be prudent and financially responsible in the expenditure of funds from both public and private sources. The Order stated it is essential to manage the costs associated with the governmental imposition of private expenditures required to comply with Federal regulations.

Additionally, on February 24, 2017, the President issued Executive Order 13777, “Enforcing the Regulatory Reform Agenda.” The Order required that the head of each agency designate an agency official as its Regulatory Reform Officer (RRO). Each RRO oversees the implementation of regulatory reform initiatives and policies to ensure that agencies effectively carry out regulatory reforms, consistent with applicable law. Further, E.O. 13777 requires the establishment of a regulatory task force at each agency. The regulatory task force is required to make recommendations to the agency head regarding the repeal, replacement, or modification of existing regulations, consistent with applicable law. At a minimum, each regulatory reform task force must attempt to identify regulations that:

(i) Eliminate jobs, or inhibit job creation;

(ii) Are outdated, unnecessary, or ineffective;

(iii) Impose costs that exceed benefits;

(iv) Create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies;

(v) Are inconsistent with the requirements of Information Quality Act, or the guidance issued pursuant to that Act, in particular those regulations that rely in whole or in part on data, information, or methods that are not publicly available or that are insufficiently transparent to meet the standard for reproducibility; or

(vi) Derive from or implement Executive Orders or other Presidential directives that have been subsequently rescinded or substantially modified.

Pursuant to OMB's Guidance Implementing Executive Order 13771, titled “Reducing Regulation and Controlling Regulatory Costs (April 5, 2017), this action does not constitute an “E.O. 13771 regulatory action” because it does not meet the E.O. 12866 definition of a significant regulatory action. DOE determined, however, that this action furthers the policy goals outlined in Executive Order 13777, “Enforcing the Regulatory Reform Agenda,” which encourages the repeal, replacement, or modification of existing regulations that, among other things, are outdated, unnecessary, or ineffective. Prior to this action, Part 1003 was outdated, repetitive, and, in some sections, inefficient. Certain provisions, particularly the requirement that notice be served via U.S. Mail, had become onerous for regulated parties. This action clarifies the regulation's language, streamlines the proceedings, and removes burdensome requirements. This should result in increased time and resource savings for litigants and DOE.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires preparation of an initial regulatory flexibility analysis for any rule that, by law, must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by Executive Order 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” 67 FR 53461 (August 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the rulemaking process (68 FR 7990). DOE has made its procedures and policies available on the Office of General Counsel's website: http://www.gc.doe.gov.

DOE has reviewed this proposed rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. This proposed rule would simplify procedural rules primarily for litigants and reduce the financial and administrative burdens involved in bringing cases before the OHA. DOE has determined that the proposed rule, if adopted, would not result in a significant economic impact on a substantial number of small entities because the revisions are specifically designed to ease and reduce the obligations of litigants. For example, allowing service via email and other electronic methods significantly reduces the time and expense of bringing a 1003 proceeding for petitioners, most of whom are corporations and small businesses. Moving the public reference room from a physical location in Washington, DC, to an online location makes research far easier for litigants outside the Capital region. In making changes such as the ones mentioned here and described elsewhere in the preamble, the OHA has not added new burdens on participants in part 1003 proceedings, resulting in a net decrease in burdens.

DOE will provide its certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the Small Business Administration for review under 5 U.S.C. 605(b).

The proposed changes to part 1003 do not contain information collection requirements subject to review and approval by OMB under the Paperwork Reduction Act.

The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally requires Federal agencies to examine closely the impacts of regulatory actions on State, local, and tribal governments. Section 101(5) of Title I of that law defines a Federal intergovernmental mandate to include any regulation that would impose upon State, local, or tribal governments an enforceable duty, except a condition of Federal assistance or a duty arising from participating in a voluntary Federal program. Title II of that law requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and tribal governments, in the aggregate, or to the private sector, other than to the extent such actions merely incorporate requirements specifically set forth in a statute. Section 202 of that title requires a Federal agency to perform a detailed assessment of the anticipated costs and benefits of any rule that includes a Federal mandate which may result in costs to State, local, or tribal governments, or to the private sector, of $100 million or more in any one year (adjusted annually for inflation). 2 U.S.C. 1532(a) and (b). Section 204 of that title requires each agency that proposes a rule containing a significant Federal intergovernmental mandate to develop an effective process for obtaining meaningful and timely input from elected officers of State, local, and tribal governments. 2 U.S.C. 1534.

The proposed rule would not 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 one year. Accordingly, no assessment or analysis is required under the Unfunded Mandates Reform Act of 1995.

Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any proposed rule that may affect family well-being. The proposed rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, the DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

Executive Order 13132, “Federalism,” 64 FR 43255 (Aug. 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. The DOE has examined this proposed rule and has determined that it would not preempt State law and would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. No further action is required by Executive Order 13132.

With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (Feb. 7, 1996), imposes on Executive agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. With regard to the review required by section 3(a), section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or whether it is unreasonable to meet one or more of them. The DOE has completed the required review and determined that, to the extent permitted by law, the proposed rule meets the relevant standards of Executive Order 12988.

The Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). The DOE has reviewed this proposed rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

The Secretary of Energy has approved publication of this notice of proposed rulemaking.

For the reasons set out in the preamble, the DOE proposes to amend part 1003 of title 10, Code of Federal Regulations, to read as follows:

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2019-0557; Product Identifier 2019-NE-17-AD” at the beginning of your comments. The FAA specifically invites comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. The FAA will consider all comments received by the closing date and may amend this NPRM because of those comments.

The FAA will post all comments received, without change, to http://www.regulations.gov, including any personal information you provide. The FAA will also post a report summarizing each substantive verbal contact received about this NPRM.

The European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD 2018-0264R1, dated April 4, 2019 (referred to after this as “the MCAI”), to address the unsafe condition on these products. The MCAI states:

You may obtain further information by examining the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2019-0557.

The FAA reviewed Aviointeriors Mandatory Service Bulletin (MSB) No. 16/18, Rev. 1, dated October 11, 2019, and Aviointeriors Optional Service Bulletin (OSB) No. 18/18, Rev. 2, dated March 11, 2019. The MSB describes procedures for inspection and horizontal installation of the life vest pouch assembly. The OSB describes procedures for an alternative (vertical) inspection and installation of the life vest pouch assembly. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

This product has been approved by EASA, and is approved for operation in the United States. Pursuant to our bilateral agreement with the European Community, EASA has notified us of the unsafe condition described in the MCAI and service information referenced above. The FAA is proposing this AD because it evaluated all the relevant information provided by EASA and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would require inspection of the life vest pouch assembly and, depending on the results of the inspection, replacement of the life vest pouch.

EASA AD 2018-0264R1, dated April 4, 2019, refers to Aviointeriors OSB No. 18/18, Rev. 1, dated October 16, 2018. This FAA AD refers to Aviointeriors OSB No. 18/18, Rev. 2, dated March 11, 2019. EASA reasoned that they are aware of Aviointeriors OSB No. 18/18, Rev. 2, but because none of their operators opted to implement the optional vertical installation modification within Aviointeriors OSB No. 18/18, EASA determined it was not necessary to refer to the latest revision of the service bulletin.

The FAA estimates that this proposed AD affects an unknown number of passenger seats installed on, but not limited to, Boeing 777-200 and 777-300 airplanes of U.S. registry.

The FAA estimates the following costs to comply with this proposed AD:

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

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

This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to engines, propellers, and associated appliances to the Manager, Engine and Propeller Standards Branch, Policy and Innovation Division.

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

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

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

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

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

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

I. Background

On March 25, 2016, OSHA published a final rule regulating occupational exposure to respirable crystalline silica (81 FR 16286). The final rule established a new permissible exposure limit (PEL) for respirable crystalline silica of 50 micrograms per cubic meter of air (50 μg/m 3 ) as an 8-hour time-weighted average in all industries covered by the rule. The rule also included other provisions, such as requirements for exposure assessment, methods for controlling exposure, respiratory protection, medical surveillance, hazard communication, and recordkeeping. OSHA issued two separate standards—one for construction (29 CFR 1926.1153) and one for general industry and maritime (29 CFR 1910.1053). 1

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background, Purpose, and Legal Basis

The Breakwater Powerboat Association submitted an application to Coast Guard Sector Ohio Valley for a marine event permit to conduct a power boat race from August 31, 2019 through September 02, 2019. This race will be the National Championship for two classes of powerboats. The race course will be the area from Ohio River Mile Marker (MM) 355.5 to MM 356.8. Hazards from the regatta include collision of vessels, wake, capsizing, and interference to Aids to Navigation. The Captain of the Port Sector Ohio Valley (COTP) has determined that potential hazards associated with the regatta would be a safety concern for anyone within the race course area.

The purpose of this rulemaking is to ensure the safety of vessels and the navigable waters within the race course before, during, and after the scheduled event. The Coast Guard is proposing this rulemaking under the authority in 46 U.S.C. 70041 (previously 33 U.S.C 1233)

The COTP is proposing to establish a Special Local Regulation from August 31, 2019 through September 02, 2019. The special local regulation would cover all navigable waters from Ohio River Mile Marker (MM) 355.5 to MM 356.8. The duration of the regulation is intended to ensure the safety of vessels and these navigable water before, during, and after the scheduled regatta. No person would be permitted to enter the area without obtaining approval from the Captain of the Port or a designated representative. The event sponsor has scheduled commercial traffic breaks to prevent a back-up of vessels. The regulatory text we are proposing appears at the end of this document.

We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on size, location, and duration of the special local regulation. The safety zone will be enforced on a small area of the Ohio River from 9 a.m. through 6 p.m. on August 31, 2019, from 7 a.m. through 5:30 p.m. on September 1, 2019, and from 7 a.m. through 4 p.m. on September 2, 2019. Breaks have been scheduled so that the event does not significantly impede commercial traffic. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone and the rule would allow vessels to seek permission to enter or transit the zone.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.

While some owner or operators of vessels intending to transit the area may be small entities, for the reasons stated in section IV.A above, this proposed rule would not have a significant economic impact on any vessel owner or operator

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132 (Federalism), if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this proposed rule does not have tribal implications under Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) because it would not have a substantial direct effect 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. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this proposed rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a special local regulation lasting from August 31, to September 02, 2019 that would restrict entry into the race course from MM 355.5 to MM 356.8. Normally such actions are categorically excluded from further review under paragraph L[61] of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

We encourage you to submit comments through the Federal eRulemaking Portal at https://www.regulations.gov. If your material cannot be submitted using https://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

We accept anonymous comments. All comments received will be posted without change to https://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, visit https://www.regulations.gov/privacyNotice.

Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at https://www.regulations.gov and can be viewed by following that website's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

For the reasons discussed in the preamble, the Coast Guard is proposing to amend part 100 as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

On May 30, 2019, the Illinois Environmental Protection Agency (IEPA) submitted a request to EPA to incorporate revisions to the Illinois air pollution control rules in Title 35 of the Illinois Administrative Code, Part 243—Air Quality Standards (Part 243). The submission updates the following rules in Part 243: Sections 243.108, 243.120, 243.122, 243.125, and 243.126. Part 243 includes Illinois's regulation adoption of ambient air quality standards related to the NAAQS.

Illinois revised Part 243 to reflect amendments to EPA's “List of Designated References and Equivalent Methods” used to determine compliance with the NAAQS (fine particulate matter (PM 2.5 ) and coarse particulate matter (PM 10 ), SO 2 , carbon monoxide (CO), Pb, oxides of nitrogen (NO X ), and ozone (O 3 )). In addition to these changes Illinois updated existing rule language to address EPA's revocation of the 1971 SO 2 and the 1978 Pb NAAQS.

Other revisions to Part 243 include a range of administrative changes, such as making grammatical corrections to language updates; removing the unnecessary version date from the Code of Federal Regulations (CFR) citations and updating the CFR citations to the latest version available.

EPA is proposing to approve the revisions to Part 243 which are described below:

Section 243.108 Incorporation by Reference —incorporates by reference EPA's “List of Designated Reference and Equivalent Methods” for measuring ambient concentrations to demonstrate compliance with the NAAQS (PM 2.5 and PM 10, SO 2 , CO, Pb, NO X , and O 3 ).

EPA designated two new Federal reference monitoring methods on February 13, 2018 (83 FR 6174) and on June 1, 2018 (83 FR 13198) for nitrogen dioxide (NO 2 ) in ambient air. On June 15, 2018, EPA updated the “List of Designated Reference and Equivalent Methods” to include these new Federal reference monitoring methods for NO 2 . The proposed SIP revision would update section 243.108 to incorporate the changes based on EPA's action dated June 15, 2018.

Additionally, Illinois updated section 243.108, to incorporate by reference the following monitoring methods: Appendices A-1, A-2, B, C, D, F, G, H, I, J, K, L, N, O, P, Q, R, S, T and U of 40 CFR part 50, to the 2018 edition of the CFR.

Section 243.120 PM 10 and PM 2.5 —contains the 1987 and 1997 primary and secondary standards and measurement methods for PM 10 and PM 2.5. In this section, the revisions are administrative changes.

Section 243.122 Sulfur Oxides (Sulfur Dioxide) —contains the 1971 primary and secondary standards and measurement methods for sulfur oxide (as SO 2 ), respectively, in subsections 243.122(a) and (b).

In this section, Illinois revised subsection 243.122(a)(5) by updating the “Board note” listing the specific areas where the 1971 NAAQS no longer applies. These areas in Illinois have been designated nonattainment for the more stringent 2010 primary SO 2 NAAQS. Thus, the proposed revision will only revoke the 1971 standard where EPA has adopted Round 1 and Round 2 area designations for the 2010 NAAQS for SO 2 (78 FR 47191; 81 FR 45039).

Section 243.125 Ozone —contains the 2008 and 2015 primary and secondary 8-hour standards and measurement methods for O 3. In this section the revisions are administrative changes.

Section 243.126 Lead —contains the 1978 and 2008 primary and secondary standards and measurement methods for Pb, respectively, in subsections 243.126(a) and 243.126(b). In this section, Illinois proposed to revoke the 1978 NAAQS for Pb by removing the provision in subsection 243.126(a).

EPA's final 2008 Pb regulation states that the 1978 NAAQS for Pb no longer applies one year after the effective date. (November 12, 2008, 73 FR 66964). Illinois updated a Board note explaining the reason for the removal of the 1978 NAAQS based on EPA designation of the Granite City area nonattainment for the 2008 primary and secondary three-month average NAAQS for Pb effective December 31, 2011 and an area of Chicago effective December 31, 2012. See 75 FR 71033, 71042 (Nov. 22, 2010); 76 FR 72097, 79108 (Nov. 22, 2011)). The remaining areas of the state were designated as “unclassifiable/attainment”, effective December 31, 2012.

EPA is proposing to approve the revisions to Part 243 discussed above because the revisions meet all applicable requirements under the Clean Air Act (CAA), consistent with section 110(k)(3) of the CAA. Furthermore, Illinois has shown that the revisions to Part 243 do not interfere with any applicable requirement concerning attainment and reasonable further progress or any other applicable CAA requirement, consistent with section 110(l) of the CAA.

Under Section 110(l) of the CAA, EPA shall not approve a SIP revision if it would interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in section 171 of the CAA) or any other applicable requirement of the CAA. The proposed SIP revision would not interfere with any applicable CAA requirements based on technical analysis submitted by Illinois. Part 243 contains the state's ambient air quality standards, which are consistent with the NAAQS. The changes to the ambient air quality standards in Part 243 rules will have no effect on actual or allowable emissions as they only clarify EPA's rulemaking related to the NAAQS.

Illinois has shown there is no impact of revising Part 243 that would hinder Illinois's ability to maintain and meet the NAAQS for NO 2 , O 3 , Pb, PM 2.5 , PM 10 , SO 2 , and CO. Therefore, these revisions to Part 243 are approvable as they update Part 243 to be consistent with EPA's rulemaking related to the NAAQS. The revisions will not increase any emissions to the atmosphere because they do not impact on any source applicability or emissions.

EPA is proposing to approve revisions to Illinois's Part 243 submitted on May 30, 2019, as a revision to the Illinois SIP. EPA is also proposing approval of a revision removing the provisions of the 1978 NAAQS for Pb, specifically, section 243.126(a)(1) and (2) from Part 243.

In this rule, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA proposes to incorporate by reference revisions to 35 Illinois Administrative Code Part 243 “Air Quality Standards”, sections 243.108, 243.120, 243.122, 243.125, and 243.126, effective February 19, 2019. EPA has made, and will continue to make, these documents generally available through www.regulations.gov and at the EPA Region 5 Office (please contact the person identified in the For Further Information Contact section of this preamble for more information).

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

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

• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;

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

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

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

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

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

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

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

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

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

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

The EPA designated the Denver Area as nonattainment and classified the area as Marginal on July 20, 2012. On May 4, 2016, the EPA published its determination that the Denver Area had failed to attain the 2008 8-hour ozone NAAQS by the attainment deadline, and that the Denver area was accordingly reclassified to a Moderate ozone nonattainment area. 1 On November 14, 2018, the EPA proposed to grant the request from the State of Colorado for a 1-year attainment date extension for the Denver Area for the 2008 ozone NAAQS. 2 On March 26, 2019, the Governor of Colorado sent a letter to EPA Region 8 Administrator to withdraw the State's previous request for a 1-year attainment date extension for the 2008 ozone NAAQS. 3 Accordingly, the EPA is now proposing to determine that the Denver Area failed to attain the 2008 ozone NAAQS by its applicable attainment date. 4

The 2008 ozone NAAQS is met at an ambient monitoring site when the design value  5 does not exceed 0.075 parts per million (ppm). For areas classified as Moderate nonattainment for the 2008 ozone NAAQS, the attainment date was July 20, 2018. Because the design value is based on the three most recent complete calendar years of data prior to the attainment date, the EPA's proposed determination for the Denver Area is based upon the complete, quality-assured and certified ozone monitoring data from calendar years 2015, 2016, and 2017.

Data from all monitors in an area must be evaluated when determining if the area attains the NAAQS. For the EPA to make a determination as to whether an area has attained the NAAQS, each monitor must have a valid  6 design value meeting the standard. If one or more monitors in an area have a design value that exceeds the standard, the area does not attain the NAAQS. The Denver Area's 2015-2017 design value was 0.079 ppm, exceeding the standard of 0.075 ppm. See 83 FR 56784.

As noted above, the State has withdrawn its previous request for a 1-year extension of the attainment date to July 20, 2019, and as a result the Denver Area is no longer eligible for a 1-year attainment date extension under section 181(a)(5) of the CAA and 40 CFR 51.1107. As stated in the Clean Air Act's attainment date extension provision for ozone nonattainment areas, section 181(a)(5), “[u]pon application by any State,” the EPA may extend an area's attainment date by one year provided certain criteria are met. The EPA interprets a state's application to be a necessary prerequisite to granting the 1-year extension. 7 Therefore, based on the applicable ozone design value, in this document the EPA is proposing to determine that the Denver Area did not attain by the attainment date of July 20, 2018, and is providing notice of the area's proposed reclassification to Serious, as required under CAA section 181(b)(2). If the EPA finalizes the determination that the area failed to attain by the attainment date, it will be reclassified to Serious by operation of law. The reclassified area will then be subject to the Serious area requirement to attain the 2008 ozone NAAQS as expeditiously as practicable, but not later than 9 years from the date of original designation, or July 20, 2021.

Once an area is reclassified as Serious, the state must submit to the EPA the SIP revisions for the area that satisfy the statutory and regulatory requirements applicable to Serious areas established in CAA section 182(c) and in the 2008 Ozone NAAQS SIP Requirements Rule. 8 Since the deadlines in section 182(c) were based on the 1990 date of enactment of amendments to the CAA and have already passed, in separate rulemakings the EPA is adjusting the deadlines  9 for submitting the SIP revisions required for Serious areas. 10 The EPA is finalizing SIP revision and RACT Implementation deadlines for reclassified Serious areas in an August 2019 national rulemaking. 11 A copy of the pre-publication version of the national rulemaking can be found at https://www.epa.gov/ground-level-ozone-pollution/2008-ozone-national-ambient-air-quality-standards-naaqs-nonattainment.

In accordance with CAA section 182(i), in order to “assure consistency among the required submissions” for Moderate areas across the country that failed to attain by the July 20, 2018 attainment date, for the Denver Area we are proposing the same SIP submission due dates and implementation deadlines as we are finalizing in the August 2019 national rulemaking.

We note that these proposed deadlines will result in shorter timeframes between a final action on this determination and reclassification and the SIP submission and RACT implementation deadlines for Denver than for the other reclassified Moderate areas addressed in the national rulemaking. However, the governor's letter withdrawing the extension request committed to “moving aggressively forward and without delay in our efforts to reduce ground level ozone concentrations in the Denver Metro/North Front Range nonattainment area,” and the EPA intends to support these efforts. As the Governor requested, we will continue to work with Colorado's air planning agencies to “to develop appropriate and achievable schedules and strategies for continuing progress towards attainment of the 2008 NAAQS.”

Given the State's commitment to addressing its Serious Area obligations, and given section 182(i)'s focus on consistency, we propose that aligning Colorado's deadline with the national deadlines is appropriate and necessary for achieving “consistency among the submissions” of all reclassified areas across the country and supports achieving timely attainment in the Denver Area. A general discussion of CAA section 172(c) state submittal requirements for attainment plans and 182(c) SIP requirements that apply to Serious areas for the 2008 ozone NAAQS is included in the preamble of the November 14, 2018 proposed rulemaking. 12

1. Due date for Serious area SIP revisions (including RACT tied to attainment), and implementation deadline for RACT tied to attainment.

Consistent with the final national notice, we are proposing for the Denver Area the same August 3, 2020 due date to submit Serious area SIP revisions, including RACT measures the State determines necessary for meeting reasonable further progress (RFP) or demonstrating timely attainment in the area, and to implement those RACT measures that are tied to timely attainment.

2. Due date for SIP revisions for Serious area RACT not tied to attainment, and implementation deadline for Serious area RACT not tied to attainment.

For Serious areas reclassified from Moderate, the requirement for RACT expands to include all sources that emit, or have the potential to emit, 50 tons per year of volatile organic compounds (VOC) or nitrogen oxides (NO X ). 13 For the Denver Area, we are proposing the same due date for submitting SIP revisions for any RACT provisions not otherwise needed for attainment purposes as the date finalized in the August 2019 national rulemaking for other areas: 18 months from the effective date of that national rulemaking. Additionally, consistent with the national notice, we propose for the Denver Area the deadline of July 20, 2021 for implementation of any new RACT requirements not otherwise needed for RFP or timely attainment purposes.

For further information and rationale supporting these proposed SIP due dates and implementation deadlines, please see our August 2019 rulemaking.

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

This action is not expected to be an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866.

This rulemaking does not impose any new information collection burden under the PRA not already approved by the Office of Management and Budget. This action proposes to: (1) Find that the Denver Area Moderate ozone nonattainment area failed to attain the 2008 NAAQS by the applicable attainment date; (2) identify the area subject to reclassification as Serious ozone nonattainment area by operation of law upon the effective date of the reclassification notice; and (3) adjust any applicable implementation deadlines. Thus, the proposed action does not establish any new information collection burden that has not already been identified and approved in the EPA's information collection request. 14

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. The proposed determination of failure to attain the 2008 ozone NAAQS (and resulting reclassification) does not in and of itself create any new requirements beyond what is mandated by the CAA. Instead, this rulemaking only makes factual determinations, and does not directly regulate any entities.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action imposes no enforceable duty on any state, local or tribal governments or the private sector.

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

This action does not apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the proposed rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

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

This rulemaking does not involve technical standards.

The EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income, or indigenous populations. The results of this evaluation are contained in the section of the preamble titled “Environmental Justice Considerations.”

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

Executive Summary

On July 2, 1964, President Lyndon B. Johnson signed the landmark Civil Rights Act of 1964. See Public Law 88-352, 78 Stat. 241. This legislation prohibited discrimination on various grounds in many of the most important aspects of civic life. Its Title VII extended these protections to employment opportunity, prohibiting discrimination on the basis of race, color, religion, sex, or national origin. In Title VII, Congress also provided a critical accommodation for religious employers. Congress permitted religious employers to take religion into account for employees performing religious activities: “This title shall not apply . . . to a religious corporation, association, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, or society of its religious activities. . . .” See sec. 702(a), Public Law 88-352, 78 Stat. 255 (codified as amended at 42 U.S.C. 2000e-1(a)). Congress provided a similar exemption for religious educational institutions. See sec. 703(e)(2), Public Law 88-352, 78 Stat. 256 (codified at 42 U.S.C. 2000e-2(e)(2)).

Title VII's protections for religious organizations were expanded by Congress in 1972. Congress added a broad definition of “religion”: “The term `religion' includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business.” Equal Employment Opportunity Act of 1972, sec. 2(7), Public Law 92-261, 86 Stat. 103 (codified at 42 U.S.C. 2000e(j)). Congress also expanded the religious exemption in section 702 of Title VII and added educational institutions to the list of those eligible for exemption. In addition, Congress broadened the scope of the section 702 exemption to cover not just religious activities, but all activities of a religious organization: “This title [VII] shall not apply . . . to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.” Sec. 3, Public Law 92-261, 86 Stat. 104 (codified at 42 U.S.C. 2000e-1(a)). This expansion of the religious exemption to all activities of religious organizations was upheld against an Establishment Clause challenge unanimously  1 by the Supreme Court. See Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 330 (1987).

One year after President Johnson signed the Civil Rights Act, he signed Executive Order 11246, requiring equal employment opportunity in federal government contracting. The order mandated that all government contracts include a provision stating that “[t]he contractor will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin.” Sec. 202(1), E.O. 11246, 30 FR 12319, 12320 (Sept. 28, 1965). Two years later, President Johnson expressly acknowledged Title VII of the Civil Rights Act when expanding Executive Order 11246 to prohibit, as does Title VII, discrimination on the bases of sex and religion. See sec. 3, E.O. 11375, 32 FR 14303 (Oct. 17, 1967). In 1978, the responsibilities for enforcing Executive Order 11246 were consolidated in DOL. See E.O. 12086, 43 FR 46501 (Oct. 5, 1978). In its implementing regulations, DOL imported Title VII's exemption for religious educational institutions. See 43 FR 49240, 49243 (Oct. 20, 1978) (now codified at 41 CFR 60-1.5(a)(6)); cf. 42 U.S.C. 2000e-2(e)(2). Finally, in 2002, President George W. Bush amended the executive order by expressly importing Title VII's exemption for religious organizations, which likewise has since been implemented by DOL's regulations. See sec. 4, E.O. 13279, 67 FR 77143 (Dec. 12, 2002); 68 FR 56392 (Sept. 30, 2003) (codified at 41 CFR 60-1.5(a)(5)); cf. 42 U.S.C. 2000e-1(a).

Because the exemption administered by OFCCP springs directly from the Title VII exemption, it should be given a parallel interpretation, consistent with the Supreme Court's repeated counsel that the decision to borrow statutory text in a new statute is a “strong indication that the two statutes should be interpreted pari passu.” Northcross v. Bd. of Educ. of Memphis City Sch., 412 U.S. 427, 428 (1973) (per curiam). OFCCP generally interprets the nondiscrimination provisions of Executive Order 11246 consistent with the principles of Title VII. There has been some variation among federal circuit courts in interpreting the scope and application of the Title VII religious exemption. And many of the relevant court opinions predate the recent Supreme Court decisions and executive orders discussed below. In this proposed rule, OFCCP has sought to follow the principles articulated by these recent decisions and orders, and has interpreted the circuit-level case law in light of them. OFCCP draws on Title VII case law regarding religious employers because of its persuasiveness on issues in common with federal contractor issues arising under Executive Order 11246.

These recent Supreme Court decisions have addressed the freedoms and anti-discrimination protections that must be afforded religion-exercising organizations and individuals under the U.S. Constitution and federal law. See, e.g., Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n, 138 S. Ct. 1719, 1731 (2018) (government violates the Free Exercise Clause of the First Amendment when its decisions are based on hostility to religion or a religious viewpoint); Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2022 (2017) (government violates the Free Exercise Clause of the First Amendment when it conditions a generally available public benefit on an entity's giving up its religious character, unless that condition withstands the strictest scrutiny); Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2775 (2014) (the Religious Freedom Restoration Act applies to federal regulation of the activities of for-profit closely held corporations); Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 196 (2012) (the ministerial exception, grounded in the Establishment and Free Exercise clauses of the First Amendment, bars an employment-discrimination suit brought on behalf of a teacher against the religious school for which she worked). Although these decisions are not specific to the federal government's regulation of contractors, they have reminded the federal government of its duty to protect religious exercise—and not to impede it. Recent executive orders have done the same. See E.O. 13831; E.O. 13798, 82 FR 21675 (May 9, 2017).

Some religious organizations have previously provided feedback to OFCCP that they were reluctant to participate as federal contractors because of uncertainty regarding the scope of the religious exemption contained in section 204(c) of Executive Order 11246 and codified in OFCCP's regulations. This proposal is intended to provide clarity regarding the scope and application of the religious exemption consistent with the legal developments discussed above by proposing definitions of key terms in 41 CFR 60-1.3 and a rule of construction in 41 CFR 60-1.5. Among other changes, this proposal is intended to make clear that the Executive Order 11246 religious exemption covers not just churches but employers that are organized for a religious purpose, hold themselves out to the public as carrying out a religious purpose, and engage in exercise of religion consistent with, and in furtherance of, a religious purpose. It is also intended to make clear that religious employers can condition employment on acceptance of or adherence to religious tenets without sanction by the federal government, provided that they do not discriminate based on other protected bases. In addition, consistent with the administration policy to enforce federal law's robust protections for religious freedom, the proposed rule states that it should be construed to provide the broadest protection of religious exercise permitted by the Constitution and other laws. While only a subset of contractors and would-be contractors may wish to seek this exemption, the Supreme Court, Congress, and the President have each affirmed the importance of protecting religious liberty for those organizations who wish to exercise it.

OFCCP proposes to add definitions of the following five terms, appearing in alphabetical order, to the list of definitions in 41 CFR 60-1.3: Exercise of religion; Particular religion; Religion; Religious corporation, association, educational institution, or society; and Sincere. These definitions are interrelated and are therefore discussed below in the order in which they build on one another.

OFCCP proposes defining Religion to provide that the term is not limited to religious belief but also includes all aspects of religious observance and practice. The proposed definition is identical to the primary definition of “religion” in Title VII: “The term `religion' includes all aspects of religious observance and practice, as well as belief. . . .” 42 U.S.C. 2000e(j). The proposed definition omits the second portion of the Title VII definition, which refers to an employer's accommodation of an employee's religious observance or practice, because that is redundant with OFCCP's existing regulations. OFCCP's regulations at 41 CFR part 60-50, Guidelines on Discrimination Because of Religion or National Origin, contain robust religious protections for employees, including accommodation language substantially the same as that in the portion of the Title VII definition omitted here. Compare 42 U.S.C. 2000e(j) with 41 CFR 60-50.3. Those provisions continue to govern contractors' obligations to accommodate employees' and potential employees' religious observance and practice.

The definition of Religion proposed here has been used by other agencies. It would be identical to the definition used by the Department of Justice in grant regulations implementing section 815(c) of the Justice System Improvement Act of 1979. See 28 CFR 42.202(m). The Small Business Administration has used the same definition as well in its grant regulations. See 13 CFR 113.2(c).

Building on the proposed definition of Religion, OFCCP proposes to define Particular religion to clarify that the religious exemption allows religious contractors not only to prefer in employment individuals who share their religion, but also to condition employment on acceptance of or adherence to religious tenets as understood by the employing contractor. This proposed definition flows directly from the broad definition of Religion, discussed above, to include all aspects of religious belief, observance, and practice as understood by the employer. It is also consistent with Title VII case law holding that “the permission to employ persons `of a particular religion' includes permission to employ only persons whose beliefs and conduct are consistent with the employer's religious precepts.” Little v. Wuerl, 929 F.2d 944, 951 (3d Cir. 1991); see also, e.g., Kennedy v. St. Joseph's Ministries, Inc., 657 F.3d 189, 194 (4th Cir. 2011) (“Congress intended the explicit exemptions to Title VII to enable religious organizations to create and maintain communities composed solely of individuals faithful to their doctrinal practices, whether or not every individual plays a direct role in the organization's `religious activities.' ” (quoting Little, 929 F.2d at 951)); Hall v. Baptist Mem'l Health Care Corp., 215 F.3d 618, 624 (6th Cir. 2000) (“The decision to employ individuals `of a particular religion' under [42 U.S.C.] § 2000e-1(a) and § 2000e-2(e)(2) has been interpreted to include the decision to terminate an employee whose conduct or religious beliefs are inconsistent with those of its employer.” (citing, inter alia, Little, 929 F.2d at 951)); Killinger v. Samford Univ., 113 F.3d 196, 200 (11th Cir. 1997) (“[T]he exemption [in 42 U.S.C. 2000e-1(a)] allows religious institutions to employ only persons whose beliefs are consistent with the employer's when the work is connected with carrying out the institution's activities.”).

This approach, which recognizes contractors' exercise of religion, is also consistent with Supreme Court decisions emphasizing that “condition[ing] the availability of benefits upon a recipient's willingness to surrender his religiously impelled status effectively penalizes the free exercise of his constitutional liberties.” Trinity Lutheran, 137 S. Ct. at 2022 (alterations omitted) (quoting McDaniel v. Paty, 435 U.S. 618, 626 (1978) (plurality opinion)). These decisions naturally extend to include the right to compete on a level playing field for federal government contracts. See id. (government burdens religious exercise when it so conditions “a benefit or privilege,” “eligibility for office,” “a gratuitous benefit,” or the ability “to compete with secular organizations for a grant” (quoted sources omitted)). Accord sec. 1, E.O. 13831 (the executive branch's policy is to allow “faith-based and community organizations, to the fullest opportunity permitted by law, to compete on a level playing field for . . . contracts . . . and other Federal funding opportunities”).

OFCCP believes this clarification will assist contractors who have looked for guidance on the religious exemption in OFCCP's past statements. These past statements may have suggested that the exemption permits qualifying organizations only to prefer members of their own faith in their employment practices. See, e.g., OFCCP, Compliance Webinar (Mar. 25, 2015), https://www.dol.gov/ofccp/LGBT/FTS_TranscriptEO13672_PublicWebinar_ES_QA_508c.pdf (“This exemption allows religious organizations to hire only members of their own faith.”). OFCCP based such statements on guidance from the Equal Employment Opportunity Commission (EEOC), the agency primarily responsible for enforcing Title VII. See, e.g., EEOC, EEOC Compliance Manual sec. 12-I.C.1 (July 22, 2008) (“Under Title VII, religious organizations are permitted to give employment preference to members of their own religion.”). However, with this rulemaking, OFCCP clarifies that it applies the principles discussed above, permitting qualifying employers to take religion—defined more broadly than simply preferring coreligionists—into account in their employment decisions. The case law makes clear that qualifying employers “need not enforce an across-the-board policy of hiring only coreligionists.” LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d 217, 230 (3d Cir. 2007); Killinger, 113 F.3d at 199-200 (“We are also aware of no requirement that a religious educational institution engage in a strict policy of religious discrimination—such as always preferring Baptists in employment decisions—to be entitled to the exemption.”).

As is made clear by the text of section 204(c) of Executive Order 11246 and the corresponding regulation at 41 CFR 60-1.5(a)(5), the religious exemption itself does not exempt or excuse a contractor from complying with other applicable requirements. Although Title VII does not contain a corresponding proviso, courts have generally interpreted the Title VII religious exemption to be similarly precise, so that religious employers are not exempted from Title VII's other provisions protecting employees. See, e.g., Kennedy, 657 F.3d at 192; Rayburn v. Gen. Conference of Seventh-Day Adventists, 772 F.2d 1164, 1166 (4th Cir. 1985); cf. Hobby Lobby, 134 S. Ct. at 2783 (rejecting “the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction”); Bob Jones Univ. v. United States, 461 U.S. 574, 604 (1983) (“the Government has a fundamental, overriding interest in eradicating racial discrimination in education”). Thus, an employer may not, under Title VII or Executive Order 11246, invoke religion to discriminate on other bases protected by law.

Thus, when evaluating allegations of discrimination on bases other than religion against employers that are entitled to the Title VII religious exemption, courts carefully evaluate whether the employment action was permissibly based on religion. The particulars vary. Some courts have invoked the burden-shifting rules of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to determine whether a religious employer's invocation of religion (or a religiously motivated policy) in making an employment decision was genuine or, instead, was merely a pretext for discrimination prohibited under Title VII. See Cline v. Catholic Diocese of Toledo, 206 F.3d 651 (6th Cir. 2000); Boyd v. Harding Academy of Memphis, Inc., 88 F.3d 410 (6th Cir. 1996); cf. Geary v. Visitation of Blessed Virgin Mary Parish Sch., 7 F.3d 324 (3d Cir. 1993) (applying McDonnell Douglas in assessing religious-exemption defense to claim under the Age Discrimination in Employment Act). At least one other case has noted that “[o]ne way” to show discriminatory intent using circumstantial evidence “is through the burden-shifting framework set out in McDonnell Douglas,” but another way is to “show enough non-comparison circumstantial evidence to raise a reasonable inference of intentional discrimination.” Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1320 (11th Cir. 2012).

Other decisions have not used the McDonnell Douglas framework, particularly when an inquiry into purported pretext would risk entangling the court in the internal affairs of a religious organization or require a court or jury to assess religious doctrine or the relative weight of religious considerations. See Geary, 7 F.3d at 330-31 (discussing cases). Depending on the circumstances, such an inquiry by a court or an agency could impermissibly infringe on the First Amendment rights of the employer.

This arises most prominently in the context of the ministerial exception, a judicially recognized exemption grounded in the First Amendment from employment-discrimination laws for decisions regarding employees who “minister to the faithful.” Hosanna Tabor, 565 U.S. at 189. The exemption “is not limited to the head of a religious congregation,” nor subject to “a rigid formula for deciding when an employee qualifies as a minister.” Id. at 190. “The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission.” Id. at 189. The ministerial exception thus bars “an employment discrimination suit brought on behalf of a minister.” Id. In such a situation, it is dispositive that the employee is a minister; there is no further inquiry into the employer's motive. See id. at 706 (“[b]y imposing an unwanted minister, the state infringes the Free Exercise Clause . . . and the Establishment Clause”); see, e.g., Rayburn, 772 F.2d at 1169 (“In `quintessentially religious' matters, the free exercise clause of the First Amendment protects the act of decision rather than a motivation behind it.” (quoting Serbian E. Orthodox Diocese for U.S. of Am. & Canada v. Milivojevich, 426 U.S. 696, 720 (1976))).

Courts also apply a different framework when an employer makes an employment decision based on religious criteria, yet the employee disputes the religious criteria. In those situations, courts have stated that “if a religious institution . . . presents convincing evidence that the challenged employment practice resulted from discrimination on the basis of religion, § 702 deprives the EEOC of jurisdiction to investigate further to determine whether the religious discrimination was a pretext for some other form of discrimination.” Little, 929 F.2d at 948 (quoting EEOC v. Miss. Coll., 626 F.2d 477, 485 (5th Cir. 1980)). Courts have noted the constitutional dangers of “choos[ing] between parties' competing religious visions” and entangling themselves in deciding whether the employer or the employee has the better reading of doctrine, or which tenets an employee must follow or believe to remain in employment. Geary, 7 F.3d at 330; see Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130, 141 (3d Cir. 2006) (“While it is true that the plaintiff in Little styled her allegation as one of religious discrimination whereas [this plaintiff] alleges gender discrimination, we do not believe the difference is significant in terms of whether serious constitutional questions are raised by applying Title VII. Comparing [plaintiff] to other Ursuline employees who have committed `offenses' against Catholic doctrine would require us to engage in just the type of analysis specifically foreclosed by Little.” ); Little, 929 F.2d at 949 (“In this case, the inquiry into the employer's religious mission is not only likely, but inevitable, because the specific claim is that the employee's beliefs or practices make her unfit to advance that mission. It is difficult to imagine an area of the employment relationship less fit for scrutiny by secular courts.”); Maguire v. Marquette Univ., 627 F. Supp. 1499, 1507 (E.D. Wisc. 1986) (“Despite [plaintiff's] protests that she is a Catholic, `of a particular religion,' the determination of who fits into that category is for religious authorities and not for the government to decide.”), aff'd in part, vacated in part on other grounds, 814 F.2d 1213 (7th Cir. 1987).

Finally, there may be other instances where an inquiry by a court or an agency into employment practices otherwise threatens First Amendment rights. See DeMarco v. Holy Cross High Sch., 4 F.3d 166, 172 (2d Cir. 1993) (“There may be cases involving lay employees in which the relationship between employee and employer is so pervasively religious that it is impossible to engage in an age-discrimination inquiry without serious risk of offending the Establishment Clause.”). These turn on their individual facts, and OFCCP does not attempt to enumerate such situations here.

With the foundation of those proposed definitions, the next term in the present proposed regulation is Religious corporation, association, educational institution, or society. This term is used in Executive Order 11246 section 204(c) and 41 CFR 60-1.5(a)(5), and it is the same term used in the Title VII religious exemption at 42 U.S.C. 2000e-1(a). The proposed definition applies to a corporation, association, educational institution, society, school, college, university, or institution of learning. The words “school, college, university, or institution of learning” also appear in 41 CFR 60-1.5(a)(6), the exemption for religious educational organizations. They are included in the proposed definition to make clear that the definition's listing of “educational institution” includes schools, colleges, universities, and institutions of learning. Depending on the facts, an educational organization may qualify under the § 60-1.5(a)(5) exemption, the § 60-1.5(a)(6) exemption, both, or neither.

The proposed definition of Religious corporation, association, educational institution, or society seeks to clarify which organizations can qualify for the religious exemption. Federal circuit courts have applied a confusing variety of tests for doing so under Title VII. In 2007, the Third Circuit noted:

The World Vision court reasoned that an approach like that exemplified in LeBoon, in which the court assesses the religiosity of an organization's various characteristics, can lead the court into a “constitutional minefield.” Id. at 730 (O'Scannlain, J., concurring); see also id. at 741 (Kleinfeld, J., concurring) (concurring in this part of Judge O'Scannlain's opinion). When the parties dispute whether a particular practice, position, or purpose has religious meaning, “[t]he very act of making that determination . . . runs counter to the `core of the constitutional guarantee against religious establishment.' ” Id. at 731 (O'Scannlain, J., concurring) (quoting New York v. Cathedral Acad., 434 U.S. 125, 133 (1977)). “[I]nquiry into . . . religious views . . . is not only unnecessary but also offensive. It is well established . . . that courts should refrain from trolling through a person's or institution's religious beliefs.” Id. (alterations in original) (quoting Mitchell v. Helms, 530 U.S. 793, 828 (2000) (plurality opinion) (internal quotation marks omitted)).

The World Vision court had other reasons for doubting LeBoon' s inquiries into the depths of religious practice. It noted that courts are “ill-equipped to determine whether an activity or service is religious or secular in nature.” Id. at 732; see also id. at 732 n.8. Favoring institutions with denominational affiliations could lead a court or an agency to discriminate among religions, which could also violate the First Amendment's Establishment Clause. See id. at 732 & n.9; see also id. at 738 & n.19 (Judge O'Scannlain pointing out that requiring the restriction of membership or benefits to coreligionists as a condition of Title VII exemption could similarly cause inter-religion discrimination that violates the Establishment Clause). And finally, a “multifactor test,” like LeBoon' s, “does not work well because it is inherently too indeterminate and subjective.” Id. at 741 (Kleinfeld, J., concurring).

Although the World Vision majority agreed on those principles, its two judges differed slightly on the test to be used. Judge O'Scannlain put forward a three-part test: That “a nonprofit entity qualifies for the [Title VII religious] exemption if it establishes that it (1) is organized for a self-identified religious purpose (as evidenced by Articles of Incorporation or similar foundational documents), (2) is engaged in activity consistent with, and in furtherance of, those religious purposes, and (3) holds itself out to the public as religious.” Id. at 734 (O'Scannlain, J., concurring) (footnote omitted). His test drew upon similar formulations by the D.C. Circuit and by then-Judge Breyer on the First Circuit rejecting, due to Establishment Clause concerns, National Labor Relations Board assertions of jurisdiction over religious educational institutions. See id. (citing Univ. of Great Falls v. NLRB, 278 F.3d 1335, 1343 (D.C. Cir. 2002); Universidad Cent. de Bayamon v. NLRB, 793 F.2d 383, 399-400, 403 (1st Cir. 1985) (en banc) (Breyer, J.)). Judge Kleinfeld would not have restricted the exemption to nonprofit entities but would have included, as an additional factor, that the entity charge only nominal fees for its goods and services. See id. at 746-48 (Kleinfeld, J., concurring). World Vision' s controlling per curiam opinion thus put forward a four-part test: That an entity, to qualify for the religious exemption, must be “organized for a religious purpose, . . . [be] engaged primarily in carrying out that religious purpose, . . . hold[ ] itself out to the public as an entity for carrying out that religious purpose, and . . . not engage primarily or substantially in the exchange of goods or services for money beyond nominal amounts.” Id. at 724 (per curiam).

OFCCP agrees with the World Vision court's reasoning that it would be inappropriate and constitutionally suspect for OFCCP to contradict a claim, found to be sincere, 2 that a particular activity or purpose has religious meaning. See World Vision, 633 F.3d at 733 (O'Scannlain, J., concurring) (“[W]here there is no dispute that a particular activity or purpose is religious in nature, we may rely on the parties' characterization. In a case such as this, where the matter is hotly contested, however, we should stay our hand and rely on considerations that do not require us to engage in constitutionally precarious inquires.”). Earlier Title VII decisions illustrate the problems of doing so, drawing the government into a balancing of secular and religious characteristics, with no clear indicia of how heavily which characteristics should weigh or how much religiosity or secularity is needed to tip the balance toward one side or the other.

For example, the Third Circuit in LeBoon applied a balancing test to decide whether a Jewish community center qualified as a religious corporation, organization, or institution. See 503 F.3d at 221. The court noted the center's various religious and secular characteristics, including some that weighed on both sides: For example, the center “ `espoused Jewish values' although `the Jewish values it espoused are universal,' ” id. at 227 (quoting testimony from the center's corporate designee) (alterations omitted); rabbis from three local synagogues advised the center but were honorary, non-voting members; the center received financial support from a local Jewish federation, but most of its income came from programming services and rentals; several of its “activities involved observance of the Jewish religious calendar, although these activities did not necessarily involve holy services,” id. at 228; and the center “kept a kosher kitchen, although non-kosher foods could be brought into the building,” id.

A test that relies on the government—as opposed to the organization itself—identifying whether certain features of an organization, or its character as a whole, are religious or secular may require the comparison of things that may not be comparable, as demonstrated by the decisions above. It may, for example, invite inquiries that are aptly described as “judging whether a particular line is longer than a particular rock is heavy.” Bendix Autolite Corp. v. Midwesco Enters., Inc., 486 U.S. 888, 897 (1988) (Scalia, J., concurring in the judgment). Further, the Supreme Court has cautioned especially against judging the centrality of religious beliefs and, by extension, the centrality of religion in an organization:

The competing opinions in World Vision also underscore the problem of asking the government to identify the primary purpose of certain organizations as religious or secular. See 633 F.3d at 737 (O'Scannlain, J., concurring) (World Vision “attempts to express its `Christian witness . . . in holistic ways through . . . ministries of relief, development, advocacy and public awareness.' ”) (alterations in original); id. at 747 (Kleinfeld, J., concurring) (“the idea [behind World Vision] is not merely foreign aid in poor countries, but what amounts to missionary work by making its service providers exemplars of Christian charity”). But cf. id. at 764 (Berzon, J., dissenting) (“World Vision's purpose and daily operations are defined by a wide range of humanitarian aid that is, on its face, secular.”). Cf. also, e.g., St. Elizabeth Cmty. Hosp. v. NLRB, 708 F.2d 1436, 1441 (9th Cir. 1983) (“St. Elizabeth does not have a substantial religious character. Its primary purpose, like that of any secular hospital, is rather humanitarian, devoted to medical care for the sick.”).

Consequently, in its definition of Religious corporation, association, educational institution, or society, OFCCP proposes to adopt the test set out in World Vision, with some modifications discussed below. Most important, as explained in World Vision, all the factors below are determined with reference to the contractor's own sincerely held view of its religious purposes and the religious meaning (or not) of its practices. See World Vision, 633 F.3d at 733 (O'Scannlain, J., concurring).

First, the contractor must be organized for a religious purpose, meaning that it was conceived with a self-identified religious purpose. This need not be the contractor's only purpose. Cf. Universidad Cent. de Bayamon, 793 F.2d at 401 (no NLRB jurisdiction when, among other things, an educational institution's mission had “admittedly religious functions but whose predominant higher education mission is to provide . . . students with a secular education”). A religious purpose can be shown by articles of incorporation or other founding documents, but that is not the only type of evidence that can be used. See World Vision, 633 F.3d at 736 (O'Scannlain, J., concurring); id. at 745 (Kleinfeld, J., concurring) (noting that some religious entities have “no corporate apparatus”). And finally, “the decision whether an organization is `religious' for purposes of the exemption cannot be based on its conformity to some preconceived notion of what a religious organization should do, but must be measured with reference to the particular religion identified by the organization.” Id. at 735-36 (O'Scannlain, J., concurring) (quoting LeBoon, 503 F.3d at 226-27) (internal quotation mark omitted).

Second, the contractor must hold itself out to the public as carrying out a religious purpose. Again here, “religious purpose” “must be measured with reference to the particular religion identified by the contractor.” Id. at 736. A contractor can satisfy this requirement in a variety of ways, including by evidence of a religious purpose on its website, publications, advertisements, letterhead, or other public-facing materials, or by affirming a religious purpose in response to inquiries from a member of the public or a government entity.

Third, the contractor must exercise religion consistent with, and in furtherance of, a religious purpose. Here too, “religious purpose” means religious as “measured with reference to the particular religion identified by the contractor.” Id. The test here is similar to that in Judge O'Scannlain's concurring opinion in World Vision rather than that in the per curiam opinion. Cf. id. at 734.

OFCCP proposes this approach because it offers simpler administration for OFCCP and clearer notice to contractors. While OFCCP generally follows Title VII case law, the agency is an enforcement body, not a court, and it has authority over federal contractors specifically, rather than employers generally. Those differences counsel in favor of OFCCP's proposed revision to this aspect of the World Vision test.

OFCCP's staff can easily and consistently apply the test as proposed. As discussed earlier, an inquiry into whether an entity is engaged “primarily” in religious activity invites the balancing of things that cannot be balanced in any consistent way. How much expressly religious instruction must a school require of its students to be primarily engaged in a religious purpose? See Kamehameha, 990 F.2d at 463-64. How much funding must an organization receive from an ecclesiastical organization to be primarily engaged in a religious purpose? See Killinger, 113 F.3d at 199. What percentage of an organization's controlling body or employees must be made up of a certain religion to be primarily engaged in a religious purpose? See, e.g., Siegel v. Truett-McConnell Coll., Inc., 13 F. Supp. 2d 1335, 1341 (N.D. Ga. 1994). 3 These and similarly intractable questions have arisen repeatedly in cases involving the religious exemption. And those questions remain intractable despite courts' having the benefit of full adversarial presentation and development of the record, two conditions not present at the beginning of OFCCP reviews. Avoiding such difficult-to-draw lines would better promote consistency in OFCCP's administration and give field staff better guidance.

Likewise, the test as proposed would be clearer for contractors. OFCCP's power to regulate any private entity springs entirely from that entity's contracting with the federal government. See Sec. 201-202, E.O. 11246; 29 U.S.C. 793 (a)-(b); 38 U.S.C. 4212(a)(1)-(2); see also 48 CFR 52.222-26, -35, -36. Both contractors and the government have an interest in ensuring that the terms of their agreements are as clear as possible. As the discussion earlier makes apparent, a “primarily engaged” inquiry lacks the clarity that ought to prevail in contractual relations—organizations should understand the obligations they will take on before entering into a binding agreement with the government. See generally Fed. Crop Ins. Co. v. Merill, 332 U.S. 380 (1947) (contractors are bound to obligations imposed by law even when government agents, acting beyond their authority, say otherwise); cf. Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981) (“There can, of course, be no knowing acceptance if a State is unaware of the conditions [on federal funds] or is unable to ascertain what is expected of it.”). This need for clear regulation is especially acute given that the contractual conditions enforced by OFCCP are animated in part by the government's economic interest in the efficient fulfillment of its contracts, for which clarity is critical. See Contractors Ass'n of E. Pa. v. Sec'y of Labor, 442 F.2d 159, 171 (3d Cir. 1971) (antidiscrimination requirements in federal procurement and federally assisted construction contracts go beyond “merely . . . impos[ing] [the President's] notions of desirable social legislation”; they further the government's “financial and completion interests”); cf. UAW-Labor Emp't & Training Corp. v. Chao, 325 F.3d 360, 366-67 (D.C. Cir. 2003); AFL-CIO v. Kahn, 618 F.2d 784, 792 (D.C. Cir. 1979).

For these same reasons of contractual clarity and efficiency of administration, OFCCP's proposed definition extends no further than the three components listed therein, which, if satisfied, entitle an organization to the religious exemption. They are intended to be stand-alone components and not factors guiding an ultimate inquiry into whether an organization is “primarily religious” or secular as a whole.

The regulatory text proposed here uses the phrase “engages in exercise of religion” rather than Judge O'Scannlain's phrase, “engages in activity.” See World Vision, 633 F.3d at 734 (O'Scannlain, J., concurring) (“engaged in activity consistent with, and in furtherance of, those religious purposes”). This change, along with accompanying definitions described next, has been made for clarity, since OFCCP is proposing regulatory text in the form of a definition rather than a judicial opinion-style narrative in which terms like “activity” can be explicated at length. No change in substantive meaning is intended. The phrasing proposed here, along with the other definitions, makes clear that the activities furthering a religious purpose must be themselves of the kind that the contractor itself views as religious. OFCCP believes this formulation gives due regard to religious contractors' sincere religious exercise by recognizing that such organizations ascribe deep religious significance to their humanitarian, healing, charitable, and educational work. With that said, OFCCP does not see a scenario in which an entity's single religiously motivated employment action, standing alone, would be sufficient to satisfy this element of the definition, if that were the only religiously motivated action the entity could identify.

OFCCP does not propose to adopt the fourth factor set out in World Vision, that the entity seeking exemption “not engage primarily or substantially in the exchange of goods or services for money beyond nominal amounts.” Id. at 724 (per curiam). OFCCP believes that the adoption of this factor could yield unexpected results and that it is difficult to square with other case law. First, there are many religious entities that engage “primarily or substantially in the exchange of goods or services for money beyond nominal amounts.” For instance, religious entities may operate discount retail stores or otherwise engage in the marketplace. 4 Religiously oriented hospitals, senior-living facilities, and hospices may also engage in substantial and frequent financial exchanges. 5 A test that makes financial exchange a dispositive factor may sweep more broadly than Executive Order 11246 intended, especially when considering that Executive Order 11246—and its religious exemption—pertain to government contracting, an economic activity in which most participants are for-profit entities. 6

Second, and perhaps for this reason, this factor has not been determinative for other courts. An entity's for-profit or nonprofit status, or the volume or amount of its financial transactions, may be a factor, but not necessarily a dispositive one, under the LeBoon test. See 503 F.3d at 227 (“[N]ot all factors will be relevant in all cases, and the weight given each factor may vary from case to case.”). Likewise, in an earlier Ninth Circuit decision involving a claim for religious exemption brought by a for-profit organization, the court did not hold that the organization's for-profit status alone disqualified it from exemption. See Townley, 859 F.2d at 619. 7

Although the Supreme Court considered and upheld the Title VII religious exemption against Establishment Clause challenge as applied “to the secular nonprofit activities of religious organizations,” Amos, 483 U.S. at 330, the Supreme Court's more recent decision in Hobby Lobby counsels against a stark distinction between for-profit and nonprofit corporations in this context. The Supreme Court wrote, “No conceivable definition of the term [`person'] includes natural persons and nonprofit corporations, but not for-profit corporations.” Hobby Lobby, 134 S. Ct. at 2769. Hobby Lobby forcefully rejected the argument that only nonprofit corporations can exercise religion. See id. at 2769-75. In Hobby Lobby, the Supreme Court observed that furthering the religious freedom of corporations, whether for-profit or nonprofit, furthers individual religious freedom. See id. at 2769. The Supreme Court found no reason to distinguish between for-profit sole proprietorships—which had brought Free Exercise claims before the Supreme Court in earlier cases—and for-profit closely held corporations. See id. at 2769-70. And the Supreme Court noted that every U.S. jurisdiction permits corporations to be formed “for any lawful purpose or business,” id. at 2771 (quoted source omitted), including a religious one: “For-profit corporations, with ownership approval, support a wide variety of charitable causes, and it is not at all uncommon for such corporations to further humanitarian and other altruistic objectives. . . . If for-profit corporations may pursue such worthy objectives, there is no apparent reason why they may not further religious objectives as well.” Id. An argument to the contrary “flies in the face of modern corporate law.” Id. at 2770. Hobby Lobby answered the question whether a for-profit closely held corporation can exercise religion, and its affirmative answer supports OFCCP's proposal not to disqualify organizations from the religious exemption on the basis of their for-profit or nonprofit status. 8 However, for the same reasons discussed by the Supreme Court in Hobby Lobby with respect to the application of RFRA to for-profit entities, OFCCP does not anticipate that large, publicly held corporations would seek exemption or fall within the proposed definition. See id. at 2774 (“the idea that unrelated shareholders—including institutional investors with their own set of stakeholders—would agree to run a corporation under the same religious beliefs seems improbable”).

With the definition of Religious corporation, association, educational institution, or society set forth in this proposal, OFCCP intends to clarify the scope of the exemption and to “rely on considerations that do not require [it] to engage in constitutionally precarious inquiries.” World Vision, 633 F.3d at 733 (O'Scannlain, J., concurring). Accordingly, the proposed definition also identifies a number of features that are not required for OFCCP to determine that a contractor is religious. With this proposed definition, OFCCP intends to identify contractors that qualify for the exemption without engaging in an analysis that is inherently subjective and indeterminate, outside its competence, susceptible to discrimination among religions, or prone to entanglement with religious activity. See, e.g., Mitchell, 530 U.S. at 828 (plurality opinion); Colorado Christian Univ., 534 F.3d at 1261-62; Univ. of Great Falls, 278 F.3d at 1342-43.

OFCCP proposes to define Exercise of religion —which appears in the proposed definition of Religious corporation, association, educational institution, or society just discussed—as the term is defined for purposes of RFRA. RFRA, in 42 U.S.C. 2000bb-2(4), defines “exercise of religion” to mean “religious exercise” as defined in the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. 2000cc-5(7). RLUIPA, in turn, defines “religious exercise” as including “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” This definition is well-established and prevents the kinds of problematic inquiries into the “centrality” of a religious practice highlighted above.

The proposed definition of Exercise of religion also clarifies that the touchstone for religious exercise is sincerity, and therefore an exercise of religion must only be sincere. As the Supreme Court has repeatedly counseled, “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993) (quoting Thomas v. Review Bd. of Ind. Emp't Sec. Div., 450 U.S. 707, 714 (1981)) (internal quotation marks omitted); see also, e.g., United States v. Ballard, 322 U.S. 78, 86 (1944) (“[People] may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs.”). To merit protection, religious beliefs must simply be “sincerely held.” E.g., Frazee v. Ill. Dept. of Emp't Sec., 489 U.S. 829, 834 (1989); United States v. Seeger, 380 U.S. 163, 185 (1965). Courts have appropriately relied on the “sincerely held” standard when evaluating religious discrimination claims in the Title VII context. See, e.g., Davis v. Fort Bend Cnty., 765 F.3d 480, 485 (5th Cir. 2014), on remand, No. 4:12-CV-131, 2016 WL 4479527 (S.D. Tex. Aug. 24, 2016), rev'd, 893 F.3d 300 (5th Cir. 2018), cert. granted, No. 18-525 (U.S. Jan. 11, 2019); Philbrook v. Ansonia Bd. of Educ., 757 F.2d 476, 481-82 (2d Cir. 1985), aff'd on other grounds, 479 U.S. 60 (1986); Redmond v. GAF Corp., 574 F.2d 897, 901 n.12 (7th Cir. 1978). In such cases, a court must “vigilantly separate the issue of sincerity from the factfinder's perception of the religious nature of the [employee's] beliefs.” EEOC v. Union Independiente de la Autoridad de Acueductos y Alcantarillados, 279 F.3d 49, 57 (1st Cir. 2002) (alteration in original) (quoting Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir. 1984)) (internal quotation mark omitted).

These principles are incorporated in the proposed definition of Sincere. In line with court precedent and OFCCP's principles, the critical inquiry for OFCCP is whether a particular employment decision was in fact a sincere exercise of religion. OFCCP, like courts, “merely asks whether a sincerely held religious belief actually motivated the institution's actions.” Geary, 7 F.3d at 330. The religious organization's burden “to explain is considerably lighter than in a non-religious employer case,” since the organization, “at most, is called upon to explain the application of its own doctrines.” Id. “Such an explanation is no more onerous than is the initial burden of any institution in any First Amendment litigation to advance and explain a sincerely held religious belief as the basis of a defense or claim.” Id.; see Seeger, 380 U.S. at 185 (whether a belief is “truly held” is “a question of fact”). The sincerity of religious exercise is often undisputed or stipulated. See, e.g., Hobby Lobby, 134 S. Ct. at 2774 (“The companies in the case before us are closely held corporations, each owned and controlled by a single family, and no one has disputed the sincerity of their religious beliefs.”); Holt v. Hobbs, 135 S. Ct. 853, 862 (2015) (“Here, the religious exercise at issue is the growing of a beard, which petitioner believes is a dictate of his religious faith, and the Department does not dispute the sincerity of petitioner's belief.”).

In assessing sincerity, OFCCP takes into account all relevant facts, including whether the contractor had a preexisting basis for its employment policy and whether the policy has been applied consistently to comparable persons, although absolute uniformity is not required. See Kennedy, 657 F.3d at 194 (noting that the Title VII religious exemption permits religious organizations to “consider some attempt at compromise”); LeBoon, 503 F.3d at 229 (“religious organizations need not adhere absolutely to the strictest tenets of their faiths to qualify for Section 702 protection”); see also Killinger, 113 F.3d at 199-200. OFCCP will also evaluate any factors that indicate an insincere sham, such as acting “in a manner inconsistent with that belief” or “evidence that the adherent materially gains by fraudulently hiding secular interests behind a veil of religious doctrine.” Philbrook, 757 F.2d at 482 (quoting Int'l Soc'y for Krishna Consciousness, Inc. v. Barber, 650 F.2d 430, 441 (2d Cir. 1981)) (internal quotation mark omitted); cf., e.g., Hobby Lobby, 134 S. Ct. at 2774 n.28 (“To qualify for RFRA's protection, an asserted belief must be `sincere'; a corporation's pretextual assertion of a religious belief in order to obtain an exemption for financial reasons would fail.”); United States v. Quaintance, 608 F.3d 717, 724 (10th Cir. 2010) (Gorsuch, J.) (“the record contains additional, overwhelming contrary evidence that the [defendants] were running a commercial marijuana business with a religious front”).

OFCCP likewise acknowledges the constitutional and prudential limitations on its inquiry that may come into play when religious matters are involved. OFCCP respects and will apply the ministerial exception. OFCCP will not compare religious doctrines or practices in evaluating sincerity. See, e.g., Curay-Cramer, 450 F.3d at 139 (comparing “the relative severity of [religious] offenses . . . would violate the First Amendment”); Hall, 215 F.3d at 626 (“the First Amendment does not permit federal courts to dictate to religious institutions how to carry out their religious missions or how to enforce their religious practices”). Nor will OFCCP require contractors to adhere to strict, uniform procedures to demonstrate sincerity. See Kennedy, 657 F.3d at 194; LeBoon, 503 F.3d at 229. And where “it is impossible to avoid inquiry into a religious employer's religious mission or the plausibility of its religious justification for an employment decision,” then OFCCP will apply the Executive Order 11246 religious exemption. Curay-Cramer, 450 F.3d at 141.

Finally, OFCCP proposes to apply a but-for standard of causation when evaluating claims of discrimination by religious organizations based on protected characteristics other than religion. 9 Specifically, where a contractor that is entitled to the religious exemption claims that its challenged employment action was based on religion, OFCCP will find a violation of Executive Order 11246 only if it can prove by a preponderance of the evidence that a protected characteristic other than religion was a but-for cause of the adverse action. See Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362-63 (2013); Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009). OFCCP believes this approach is necessary in the context in which a religious organization, acting on a sincerely held belief, takes adverse action against an employee on the basis of the employee's religion. 10

This rule proposes to add paragraph (e) to 41 CFR 60-1.5 to establish a rule of construction for subpart A of 41 CFR part 60-1 that provides for the broadest protection of religious exercise permitted by the Constitution and laws including RFRA. This rule of construction is adapted from RLUIPA, 42 U.S.C. 2000cc-3(g). Significantly, RFRA applies to all government conduct, not just to legislation or regulation. 42 U.S.C. 2000bb-1. The proposed paragraph (e) is clarifying, since the Constitution and federal law, including RFRA, already bind OFCCP.

Under Executive Order 12866, OMB's Office of Information and Regulatory Affairs (OIRA) determines whether a regulatory action is significant and, therefore, subject to the requirements of Executive Order 12866 and OMB review. Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action that is likely to result in a rule that: (1) Has an annual effect on the economy of $100 million or more, or adversely affects in a material way a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities (also referred to as economically significant); (2) creates serious inconsistency or otherwise interferes with an action taken or planned by another agency; (3) materially alters the budgetary impacts of entitlement grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) raises novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in Executive Order 12866.

Executive Order 13563 directs agencies to propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs; tailor the regulation to impose the least burden on society, consistent with obtaining the regulatory objectives; and in choosing among alternative regulatory approaches, select those approaches that maximize net benefits. Executive Order 13563 recognizes that some benefits are difficult to quantify and provides that, where appropriate and permitted by law, agencies may consider and discuss qualitatively values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.

This proposed rule has been designated a “significant regulatory action” although not economically significant, under section 3(f) of Executive Order 12866. The Office of Management and Budget has reviewed the proposed rule. The designation, under Executive Order 13771, of any finalization of this proposed rule will be informed by feedback received during the public comment period.

The proposed regulatory changes are needed to provide clarity regarding the scope and application of the Executive Order 11246 religious exemption consistent with recent legal developments. The proposed rule is designed to clarify the requirements of the religious exemption, thus giving contractors and potential contractors better information and more predictability for ordering their affairs.

In this section, the Department presents a summary of the costs associated with the new definitions proposed in § 60-1.3 and the new rule of construction proposed in § 60-1.5. The Department determined that there are approximately 420,000 entities registered in the General Services Administration's System for Award Management (SAM) database. 11 Entities registered in the SAM database consist of contractor firms, and other entities such as state and local governments and other organizations that are interested in federal contracting opportunities, and other forms of federal financial assistance. The total number of entities in the SAM database fluctuates and is posted on a monthly basis. The current database includes approximately 420,000 entities. Thus, the Department determines that 420,000 entities are a reasonable representation of the number of entities that may or may not be affected by the proposed rule. 12 This SAM number, however, likely results in an overestimation for two reasons: The system captures firms that do not meet the jurisdictional dollar thresholds for the three laws that OFCCP enforces, and it captures contractor firms for work performed outside the United States by individuals hired outside the United States, over which OFCCP does not have authority. On the other hand, there is at least one reason to believe that the data may result in an underestimation because SAM data does not include all subcontractors. 13

The Department estimated the hourly compensation of the employees who would likely review the rule. The Department assumes that a Human Resource Manager (SOC 11-3121) would review the rule. The mean hourly wage of Human Resource Managers is $59.38. 14 The Department adjusted this wage rate to reflect fringe benefits such as health insurance and retirement benefits, as well as overhead costs such as rent, utilities, and office equipment. The Department used a fringe benefits rate of 46 percent  15 and an overhead rate of 17 percent, 16 resulting in a fully loaded hourly compensation rate for Human Resources Managers of $96.79 ($59.38 + ($59.38 × 46%) + ($59.38 × 17%)).

The Department acknowledges that 5 CFR 1320.3(b)(1)(i) requires agencies to include in the burden analysis for a new information-collection requirement the estimated time it will take for contractors to review and understand the instructions for compliance. In order to minimize the burden, OFCCP will publish compliance assistance materials, such as fact sheets and answers to frequently asked questions. OFCCP will also host webinars for interested persons that describe the new regulations and conduct listening sessions to identify any specific challenges contractors believe they face, or may face, when complying with the new regulations. The Department notes that such informal compliance guidance is not binding.

The Department believes that human resource managers at each contractor firm would be the employees responsible for understanding the new regulations. Therefore, the Department estimates that it will take a minimum of one-half hour for a human resource professional at each contractor firm to read the rule, read the compliance assistance materials provided by OFCCP, or participate in an OFCCP webinar to learn the new requirements. 17 Consequently, the estimated burden for rule familiarization would be 210,000 hours (420,000 contractor firms × 1/2 hour). The Department calculates the total estimated cost of rule familiarization as $20,325,900 (210,000 hours × $96.79/hour) in the first year, which amounts to a 10-year annualized cost of $2,313,413 at a discount rate of 3 percent (which is $5.51 per contractor firm) or $2,704,627 at a discount rate of 7 percent (which is $6.44 per contractor firm). The Department seeks public comments regarding the estimated number of firms that would review this rule, the estimated time to review the rule, and whether human resource managers would be the most likely staff member to review the rule.

The proposed rule does not include any additional costs because it adds no new requirements. The proposed definitions in § 60-1.3 ( Exercise of religion; Particular religion; Religion; Religious corporation, association, educational institution, or society; and Sincere ) simply clarify the scope and application of Executive Order 11246's religious exemption. The proposed rule of construction in § 60-1.5(e) likewise clarifies the application of Executive Order 11246 and affirms legal requirements that already bind OFCCP.

The total first year cost of the regulation is estimated at $20,325,900. Below, in Table 2, is a summary of the total quantifiable costs.

The Department expects that contractors impacted by the rule will experience cost savings. Specifically, the clarity provided in the new definitions and the interpretation provided will reduce the risk of non-compliance to contractors and the potential costs of litigation such findings of non-compliance with OFCCP's requirements might impose.

Executive Order 13563 recognizes that some rules have benefits that are difficult to quantify or monetize but are nevertheless important, and states that agencies may consider such benefits. Those benefits include equity, fairness, and religious freedom. This proposed rule improves equity, fairness, and religious freedom by giving contractors clear guidance on the scope and application of the religious exemption to Executive Order 11246.

If the proposed rule increases clarity for federal contractors, this impact most likely yields a benefit to taxpayers (if contractor fees decrease because they do not need to engage third-party representatives to interpret OFCCP's requirements). In addition, by increasing clarity for both contractors and for OFCCP enforcement, the proposed rule may reduce the number and costs of enforcement proceedings by making it clearer to both sides at the outset what is required by the regulation. This would also most likely represent a benefit to taxpayers (since fewer resources would be spent in OFCCP administrative litigation and appeals).

The Department expects that the number of new contractors may increase by religious entities' being more willing to contract with the government in reliance on this clarified religious exemption and seeks comment on the costs, benefits, and distributional impacts on contractors and their employees.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 et seq., establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation.” Public Law 96-354. The RFA requires agencies to consider the impact of a proposed regulation on a wide range of small entities, including small businesses, nonprofit organizations, and small governmental jurisdictions.

Agencies must review whether a proposed or final rule would have a significant economic impact on a substantial number of small entities. See 5 U.S.C. 603. If the rule would, then the agency must prepare a regulatory flexibility analysis as described in the RFA. See id.

However, if the agency determines that the rule would not be expected to have a significant economic impact on a substantial number of small entities, then the head of the agency may so certify and the RFA does not require a regulatory flexibility analysis. See 5 U.S.C. 605. The certification must provide the factual basis for this determination. The Department does not expect this rule to have a significant economic impact on a substantial number of small entities. The Department does not believe the proposed rule has any recurring costs. The regulatory familiarization cost discounted at a 7 percent rate of $45.23 per contractor or $6.44 annualized is a de minimis cost.

The Department must determine the compliance costs of this proposed rule on small contractor firms, and whether these costs will be significant for a substantial number of small contractor firms ( i.e., small firms that enter into contracts with the federal government). If the estimated compliance costs for affected small contractor firms are less than 3 percent of small contractor firms' revenues, the Department considers it appropriate to conclude that this proposed rule will not have a significant economic impact on small contractor firms.

A threshold of 3 percent of revenues has been used in prior rulemakings for the definition of significant economic impact. See, e.g., 79 FR 60634 (October 7, 2014, Establishing a Minimum Wage for Contractors) and 81 FR 39108 (June 15, 2016, Discrimination on the Basis of Sex). This threshold is also consistent with that sometimes used by other agencies. See, e.g., 79 FR 27106 (May 12, 2014, Department of Health and Human Services rule stating that under its agency guidelines for conducting regulatory flexibility analyses, actions that do not negatively affect costs or revenues by more than 3 percent annually are not economically significant). The Department believes that its use of a 3 percent of revenues significance criterion is appropriate.

A standard definition of “substantial” impact has not been established; however, the EPA provided a determination chart to decide whether a substantial impact exists. If the percentage of all small entities subject to the rule that are experiencing a given economic impact (in this case 3 percent of revenue or greater) is greater than or equal to 15 percent of all entities within that industry, then the economic impact should be considered substantial. The Department has used a threshold of 15 percent of small entities in prior rulemakings for the definition of substantial number of small entities. See, e.g., 79 FR 60633 (October 7, 2014, Establishing a Minimum Wage for Contractors). According to the Small Business Administration's (SBA's) Guide for Government Agencies: How to Comply with the Regulatory Flexibility Act, the determination of what constitutes a substantial number of small entities is open to interpretation, and is primarily dependent on the size of the industry. 18 Analysts should determine both the total number and percentage of regulated small entities experiencing significant economic impacts when determining whether a substantial number of small entities may be significantly affected. 19

To analyze the proposed rule's impact on small contractor firms, the Department used as data sources the SBA's Table of Small Business Size Standards  20 and the U.S. Census Bureau's Statistics of U.S. Businesses (SUSB). 21 Since federal contractors are not limited to specific industries, the Department assessed the impact of this proposed rule across 19 industrial classifications. Because data limitations do not allow the Department to determine which of the small firms within these industries are federal contractors, the Department assumes that these small firms are not significantly different from the small federal contractors that will be directly affected by the proposed rule.

The Department used the following steps to estimate the cost of the proposed rule per small contractor firm as measured by a percentage of total annual receipts. First, the Department used Census SUSB data that disaggregates industry information by firm size in order to perform a robust analysis of the impact on small contractor firms. The Department applied the SBA small-business size standards to the SUSB data to determine the number of small firms in the affected industries. Then the Department used receipts data from the SUSB to calculate the cost per firm as a percentage of total receipts by dividing the estimated first year cost and the annualized cost per firm discounted at a 7 percent rate by the average annual receipts per firm. The methodology and results of two industries (construction and management of companies and enterprises) are presented in Tables 3 and 4.

In sum, the increased first year cost and annualized cost of compliance resulting from the proposed rule are de minimis relative to the revenue at small contractor firms no matter their size. All of the industries had a first year cost and annualized cost per firm as a percentage of receipts of less than 3 percent. For instance, the first year cost for the construction industry is estimated to range from 0.00 percent of revenue for firms that have average annual receipts of approximately $36 million to 0.09 percent of revenue for firms that have average annual revenue receipts under $100,000. Likewise, the annualized cost for the construction industry is estimated to range from 0.00 percent of revenue for firms that have average annual receipts of approximately $36 million to 0.01 percent of revenue for firms that have average annual revenue receipts of under $100,000. Management of companies and enterprises is the industry with the highest relative first year costs, with a range of 0.00 percent for firms that have average annual receipts of approximately $2 million to 0.15 percent for firms that have average annual receipts of under $31,000. With respect to the annualized costs for the management of companies and enterprises industry, the impact as a percentage of revenue ranges from 0.00 percent for firms that have average annual receipts of approximately $2 million to 0.02 percent for firms that have average annual receipts of under $31,000. Therefore, the first year and annualized burdens as a percentage of the smallest employer's revenue would be far less than 1 percent. Accordingly, OFCCP certifies that the proposed rule would not have a significant economic impact on a substantial number of small entities.

The Paperwork Reduction Act of 1995 requires that OFCCP consider the impact of paperwork and other information collection burdens imposed on the public. See 44 U.S.C. 3507(d). An agency may not collect or sponsor the collection of information or impose an information collection requirement unless the information collection instrument displays a currently valid OMB control number. See 5 CFR 1320.5(b)(1).

OFCCP has determined that there is no new requirement for information collection associated with this proposed rule. The proposed rule provides definitions and a rule of construction to clarify the scope and application of current law. The information collection contained in the existing Executive Order 11246 regulations are currently approved under OMB Control Number 1250-0001 (Construction Recordkeeping and Reporting Requirements) and OMB Control Number 1250-0003 (Recordkeeping and Reporting Requirements—Supply and Service). Consequently, this proposed rule does not require review by the Office of Management and Budget under the authority of the Paperwork Reduction Act.

For purposes of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532, this proposed rule does not include any federal mandate that may result in excess of $100 million in expenditures by state, local, and tribal governments in the aggregate or by the private sector.

OFCCP has reviewed this proposed rule in accordance with Executive Order 13132 regarding federalism, and has determined that it does not have “federalism implications.” This rule will not “have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

This proposed rule does not have tribal implications under Executive Order 13175 that would require a tribal summary impact statement. The proposed rule will not “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.”

For the reasons set forth in the preamble, OFCCP proposes to revise 41 CFR part 60-1 as follows:

Background

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations in title 50 of the Code of Federal Regulations (50 CFR part 424) set forth the procedures for adding a species to, or removing a species from, the Federal Lists of Endangered and Threatened Wildlife and Plants (Lists) in 50 CFR part 17. Section 4(b)(3)(A) of the Act requires that we make a finding on whether a petition to add a species to the Lists ( i.e., “list” a species), remove a species from the Lists ( i.e., “delist” a species), or change a listed species' status from endangered to threatened or from threatened to endangered ( i.e., “reclassify” a species) presents substantial scientific or commercial information indicating that the petitioned action may be warranted. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition and publish the finding promptly in the Federal Register .

Our regulations establish that substantial scientific or commercial information with regard to a 90-day petition finding refers to “credible scientific or commercial information in support of the petition's claims such that a reasonable person conducting an impartial scientific review would conclude that the action proposed in the petition may be warranted” (50 CFR 424.14(h)(1)(i)).

A species may be determined to be an endangered species or a threatened species because of one or more of the five factors described in section 4(a)(1) of the Act (16 U.S.C. 1533(a)(1)). The five factors are:

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

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

(c) Disease or predation (Factor C);

(d) The inadequacy of existing regulatory mechanisms (Factor D); or

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

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, affect individuals of a species negatively. 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) may not be sufficient to compel a finding that the information in the petition is substantial information indicating that the petitioned action may be warranted. The information presented in the petition must include evidence sufficient to suggest that these threats may be affecting the species to the point that the species may meet the definition of an endangered species or threatened species under the Act.

If we find that a petition presents such information, our subsequent status review will evaluate all identified threats by considering the individual-, population-, and species-level effects and the expected response by the species. We will evaluate individual threats and their expected effects on the species, then analyze the cumulative effect 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 are expected to have positive effects on the species—such as any existing regulatory mechanisms or conservation efforts that may ameliorate threats. It is only after conducting this cumulative analysis of threats and the actions that may ameliorate them, and the expected effect on the species now and in the foreseeable future, that we can determine whether the species meets the definition of an endangered species or threatened species under the Act.

If we find that a petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted, the Act requires that we promptly commence a review of the status of the species, and we will subsequently complete a status review in accordance with our prioritization methodology for 12-month findings (81 FR 49248; July 27, 2016).

The petition findings contained in this document are listed in the tables below, and the basis for each finding, along with supporting information, is available on http://www.regulations.gov under the appropriate docket number.

We are required to make a finding whether or not a petitioned action is warranted within 12 months after receiving any petition for which we have determined contained substantial scientific or commercial information indicating that the petitioned action may be warranted (section 4(b)(3)(B) of the Act (16 U.S.C. 1531 et seq. )) (“12-month finding”). We must make a finding that the petitioned action is: (1) Not warranted; (2) warranted; or (3) warranted but precluded. “Warranted but precluded” means that (a) the petitioned action is warranted, but the immediate proposal of a regulation implementing the petitioned action is precluded by other pending proposals to determine whether species are endangered or threatened species, and (b) expeditious progress is being made to add qualified species to the Lists of Endangered and Threatened Wildlife and Plants (Lists) and to remove from the Lists species for which the protections of the Act are no longer necessary. Section 4(b)(3)(C) of the Act requires that we treat a petition for which the requested action is found to be warranted but precluded as though resubmitted on the date of such finding, that is, requiring that a subsequent finding be made within 12 months of that date. We must publish these 12-month findings in the Federal Register .

Section 4 of the Act (16 U.S.C. 1533) and the implementing regulations at part 424 of title 50 of the Code of Federal Regulations (50 CFR part 424) set forth procedures for adding species to, removing species from, or reclassifying species on the Lists. The Act defines “endangered species” as any species that is in danger of extinction throughout all or a significant portion of its range (16 U.S.C. 1532(6)), and “threatened species” as any species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range (16 U.S.C. 1532(20)). Under section 4(a)(1) of the Act, a species may be determined to be an endangered species or a threatened species because of any of the following five factors:

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

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

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

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

In considering whether a species may meet the definition of an endangered species or a threatened species because of any of the five factors, we must look beyond the mere exposure of the species to the stressor to determine whether the species responds to the stressor in a way that causes actual impacts to the species. If there is exposure to a stressor, but no response, or only a positive response, that stressor does not cause a species to meet the definition of an endangered species or a threatened species. If there is exposure and the species responds negatively, we determine whether that stressor drives or contributes to the risk of extinction of the species such that the species warrants listing as an endangered or threatened species. The mere identification of stressors that could affect a species negatively is not sufficient to compel a finding that listing is or remains warranted. For a species to be listed or remain listed, we require evidence that these stressors are operative threats to the species and its habitat, either singly or in combination, to the point that the species meets the definition of an endangered or a threatened species under the Act.

In conducting our evaluation of the five factors provided in section 4(a)(1) of the Act to determine whether the Arapahoe snowfly ( Arsapnia arapahoe ), brook floater ( Alasmidonta varicosa ), golden orb ( Cyclonaias aurea ), Yucca brevifolia and Yucca jaegeriana (Joshua tree), Alnus maritima (seaside alder), smooth pimpleback ( Cyclonaias houstonensis ), tricolored blackbird ( Agelaius tricolor ), and yellow-banded bumble bee ( Bombus terricola ) meet the definition of “endangered species” or “threatened species,” we considered and thoroughly evaluated the best scientific and commercial information available regarding the past, present, and future stressors and threats. We reviewed the petitions, information available in our files, and other available published and unpublished information. These evaluations may include information from recognized experts; Federal, State, and tribal governments; academic institutions; foreign governments; private entities; and other members of the public.

The species assessment forms for the Arapahoe snowfly, brook floater, golden orb, Joshua tree, seaside alder, smooth pimpleback, tricolored blackbird, and yellow-banded bumble bee contain more detailed biological information, a thorough analysis of the listing factors, and an explanation of why we determined that these species do not meet the definition of an endangered species or a threatened species. This supporting information can be found on the internet at http://www.regulations.gov under the appropriate docket number (see ADDRESSES , above). The following are informational summaries for each of the findings in this document.

On April 6, 2010, we received a petition from the Xerces Society for Invertebrate Conservation, Dr. Boris Kondratieff, Save the Poudre: Poudre Water Keeper, Cache la Poudre River Foundation, WildEarth Guardians, and Center for Native Ecosystems, requesting that the Arapahoe snowfly be listed as an endangered species under the Act. On April 26, 2011, we published a 90-day finding in the Federal Register (76 FR 23256), concluding that the petition presented substantial scientific and commercial information indicating that listing Arapahoe snowfly may be warranted. On May 10, 2012, we published a 12-month finding in the Federal Register (77 FR 27386) in which we stated that listing the Arapahoe snowfly as endangered or threatened was warranted. However, listing was precluded at that time by higher priority actions, and the species was added to the candidate species list. From 2012 through 2016, we addressed the status of the Arapahoe snowfly annually in our candidate notice of review, with the determination that listing was warranted but precluded (see 77 FR 69994, November 21, 2012; 78 FR 70104, November 22, 2013; 79 FR 72450, December 5, 2014; 80 FR 80584, December 24, 2015; 81 FR 87246, December 2, 2016).

The Arapahoe snowfly is a winter stonefly found in small streams characterized by substrates of pebble, cobble, and bedrock along the northern Front Range of the Rocky Mountains of Colorado. At the time of the preparation of the 12-month finding (77 FR 27386; May 10, 2012), the Arapahoe snowfly was documented in only 2 small tributaries of the Cache la Poudre River. Subsequently, the species has been documented in a total of 19 streams along the northern Front Range of Colorado. The number of Arapahoe snowfly individuals at these sites are consistently low; in sampling studies targeted at Arapahoe snowfly, only 41 of 26,170 specimens were morphologically identified as that taxon, and all were males. Arapahoe snowfly always co-occurred with two more-widely distributed and common stoneflies, Arsapnia decepta and Capnia gracilaria.

Genetic analyses, involving two mitochondrial genes, one nuclear gene, and thousands of individual nuclear polymorphisms, of 98 specimens from nine separate locations, demonstrated that all individuals examined were the first-generation progeny of crosses between female Arsapnia decepta and male Capnia gracilaria. No backcrosses or later-generation hybrids were observed, indicating that these progeny do not represent a self-sustaining lineage. Instead of representing a distinct taxon, individuals formerly recognized as being the distinct species Arsapnia arapahoe (the Arapahoe snowfly) are actually first-generation hybrids between female A. decepta and male C. gracilaria that appear in the narrow zone of range overlap between the parental species in northern Colorado. Therefore, we find the Arapahoe snowfly is not a valid taxonomic entity; does not meet the definition of a species or subspecies under the Act; and, as a result, cannot warrant listing under the Act. A detailed discussion of the basis for this finding can be found in the Arapahoe snowfly species assessment form and other supporting documents (see ADDRESSES , above).

On April 20, 2010, we received a petition from the Center for Biological Diversity, Alabama Rivers Alliance, Clinch Coalition, Dogwood Alliance, Gulf Restoration Network, Tennessee Forests Council, and West Virginia Highlands Conservancy to list 404 aquatic, riparian, and wetland species, including the brook floater, as endangered or threatened species under the Act. On September 27, 2011, we published a 90-day finding in the Federal Register (76 FR 59836), concluding that the petition presented substantial information indicating that listing the brook floater may be warranted. This notice constitutes the 12-month finding on the April 20, 2010, petition to list the brook floater under the Act.

The brook floater is a small freshwater mussel usually less than 75 millimeters (2.95 inches) in length. The species is an Atlantic slope freshwater mussel historically native to the District of Columbia, 16 States in the eastern United States, and two Canadian provinces. The mussel has a widespread distribution, is currently found in 14 of the 16 historically known States, and is considered extirpated in Delaware and Rhode Island and in the District of Columbia.

The most robust populations of brook floaters inhabit creeks and rivers of varying size with stable substrates, intact riparian buffers (vegetated areas comprised of forest, shrub, or herbaceous plants located adjacent to streams), excellent water quality, and little to no anthropogenic influences. The species needs clean, low to moderately flowing water, with stable substrate (sand, gravel, and cobble), appropriate food levels, water temperatures above 14 °C (57.2 °F) for glochidia release, and interstitial chemistry and presence of fish hosts for glochidia attachment and dispersal.

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the brook floater, and we evaluated all relevant factors under the five listing factors, including any regulatory mechanisms and conservation measures addressing these stressors. The primary stressors affecting the brook floater's biological status include disjunct populations facing habitat loss or fragmentation; changes in water flows; and degraded water quality from development, energy production, and agriculture. We also assessed impacts to the brook floater from effects of climate change. There are uncertainties in predicting precipitation changes over such a wide range and assessing the species' response, but we do not expect effects from climate change to be a primary stressor affecting the species' viability. We examined a number of other factors, including inherent factors (small population size and low fecundity), predation, invasive species, and hybridization, and we found that these factors did not rise to such a level that affected multiple populations or the species as a whole.

Despite impacts from the primary stressors, the species has maintained resilient populations throughout its range. Although we predict some continued impacts from these stressors in the future, we anticipate the species will continue to maintain resilient populations throughout the foreseeable future that are distributed widely throughout each of its representative units. Therefore, we find that listing the brook floater as endangered or threatened is not warranted. A detailed discussion of the basis for this finding can be found in the brook floater species assessment form and other supporting documents (see ADDRESSES , above).

On June 25, 2007, we received a petition from WildEarth Guardians (then Forest Guardians), to list 475 species in the Southwest Region, including the golden orb, as endangered or threatened species under the Act. On December 15, 2009, we published a 90-day finding in the Federal Register (74 FR 66260), concluding that the petition presented substantial information indicating that listing the golden orb may be warranted. On October 6, 2011, we published a 12-month finding in the Federal Register (76 FR 62166) in which we stated that listing the golden orb was warranted. However, listing was precluded at that time by higher priority actions, and the species was added to the candidate species list. From 2012 through 2016, we addressed the status of the golden orb annually in our candidate notice of review, with the determination that listing was warranted but precluded (see 77 FR 69994, November 21, 2012; 78 FR 70104, November 22, 2013; 79 FR 72450, December 5, 2014; 80 FR 80584, December 24, 2015; 81 FR 87246, December 2, 2016).

Recent genetic studies revealed that individuals thought to be golden orb are actually members of a more widespread, common species, the pimpleback ( Cyclonaias pustulosa ). These studies have been widely accepted by the relevant scientific community and the Service. Due to being synonymized with pimpleback, golden orb is not a valid taxonomic entity; does not meet the definition of a species or subspecies under the Act; and, as a result, cannot warrant listing under the Act. A detailed discussion of the basis for this finding can be found in the golden orb species assessment form and other supporting documents (see ADDRESSES , above).

On September 29, 2015, we received a petition from Wild Earth Guardians to list the Joshua tree as a threatened species under the Act. On September 14, 2016, we published a 90-day finding in the Federal Register (81 FR 63160), concluding that the petition presented substantial information indicating that listing the Joshua tree may be warranted. Recent research has suggested Joshua tree is comprised of two species, based on morphological, pollinator, and genetic differences: Yucca brevifolia and Yucca jaegeriana. After reviewing these genetic analyses and corresponding with experts on plant taxonomy, we now consider that Yucca brevifolia and Yucca jaegeriana are two distinct species, and we conducted status reviews of both entities separately. This notice constitutes the 12-month finding on the September 29, 2015, petition to list Joshua tree under the Act.

The Joshua tree is a distinctive and iconic plant of the Mojave Desert and surrounding areas. The two species of Joshua tree are distinguished in the field by their respective vegetative and flora morphology, and by their differing obligate yucca moth pollinator. Yucca brevifolia is a 5- to 12-meters (16- to 40-feet) tall, evergreen, xerophytic monocot with a somewhat spongy, indehiscent (remaining closed at maturity) fruit that is pollinated by Tegeticula synthetica, a species of yucca moth. The leaves are between 19 to 37 centimeters (7.5 to 14.6 inches) long, and are clustered in rosettes at the branch ends. The flowers are nearly spherical with short, wide petals that curve over the tip of the pistils and occur in dense, heavy panicles. Yucca jaegeriana is a 3- to 6-meters (9- to 20-feet) tall, evergreen, xerophytic monocot with spongy, indehiscent fruit that is pollinated by Tegeticula antithetica, a species of yucca moth. Yucca jaegeriana displays dichotomous branching and generally has shorter leaves (less than 22 centimeters (8.7 inches)) and shorter height to first branching at 0.75 to 1.0 meter (2.3 to 3.3 feet) than Y. brevifolia.

Joshua trees generally occur on flats, mesas, bajadas, and gentle slopes (alluvial fans). Joshua trees grow on a wide variety of soil types but generally on old alluvia of igneous, rather than sedimentary, origin that consist of silty, loamy, or sandy soils that have minimal runoff. Joshua trees are able to tolerate alkaline or saline soils in soil temperatures that range from 4 °C (39 °F) in winter to 46 °C (110 °F) in summer.

We have carefully assessed the best scientific and commercial information regarding the past, present, and future threats to Joshua tree, and we evaluated all relevant factors under the five listing factors, including any regulatory mechanisms and conservation measures addressing these stressors. The primary stressors to Joshua trees include wildfire, invasive plants, effects of climatic changes, and habitat loss. While these threats are currently acting on Yucca jaegeriana and Y. brevifolia individually, we did not find that they were acting on the two species at either a population- or species-level scale. With the two species still occupying their historical ranges, which extend to over 2.2 million hectares (5.6 million acres) for Y. brevifolia and 2.5 million hectares (6.4 million acres) for Y. jaegeriana, as well as a hybrid zone of approximately 52,000 hectares (130,000 acres), the current conditions of the two species still provide for enough resiliency, redundancy, and representation despite the identified threats acting on them. There is no evidence to indicate recent population size reductions or range contractions for either species over the last 40 years based on distribution mapping. Recruitment of both Y. jaegeriana and Y. brevifolia is occurring across their respective ranges.

Similarly, estimates of future resiliency, redundancy, and representation for Yucca jaegeriana and Y. brevifolia are high. The two species will most likely face the same threats they are currently facing into the future (wildfire, invasive plants, effects of climatic changes, and habitat loss). We evaluated environmental conditions and threat factors acting on the two species into the future (approximately 80 years) and developed two future scenarios to assist in determining the potential future conditions for the two species. Because the two species are long-lived, have such large ranges and distributions, mostly occur on Federal land, and occupy numerous ecological settings, we have determined that future stochastic and catastrophic events would not lead to population- or species-level declines in the foreseeable future. As a result, we have determined that neither Yucca jaegeriana nor Yucca brevifolia are in danger of extinction or likely to become so within the foreseeable future throughout all or a significant portion of their ranges. Therefore, we find that listing the Joshua tree as an endangered or threatened species is not warranted. A detailed discussion of the basis for this finding can be found in the Joshua tree species assessment form and other supporting documents (see ADDRESSES , above).

On April 20, 2010, we received a petition from the Center for Biological Diversity, the Alabama Rivers Alliance, the Clinch Coalition, Dogwood Alliance, the Gulf Restoration Network, Tennessee Forests Council, and the West Virginia Highlands Conservancy to list 404 aquatic, riparian, and wetland species, including seaside alder, as endangered or threatened species under the Act. On September 27, 2011, we published a 90-day finding in the Federal Register (76 FR 59836), concluding that the petition presented substantial information indicating that listing the seaside alder may be warranted. Although the petitioned entity is seaside alder, the best available information indicates that seaside alder comprises three subspecies: Alnus maritima ssp. maritima (Delmarva alder), A. maritima ssp. georgiensis (Georgia alder), and A. maritima ssp. oklahomensis (Oklahoma alder). The Service used its discretion to conduct the status review at the species and subspecies levels. This notice constitutes the 12-month finding on the April 20, 2010, petition to list seaside alder under the Act.

Seaside alder is a large, deciduous shrub or small tree, 16 to 23 feet (5 to 7 meters) tall that grows in multistemmed clumps, instead of individual trees, in the wet soils of river, stream, or pond edges. Despite its name, it is known to occur only in freshwater habitats and prefers areas with full sun and soils that are at least periodically saturated or inundated. The species is capable of both sexual and asexual reproduction, but evidence of new plants from seedlings is rare, and, like many other riparian shrubs, seaside alder primarily reproduces asexually through clones and runners. Despite this, genetic diversity appears to be adequate.

The species currently occurs in three regional populations that have been described and accepted as subspecies: Delmarva alder ( A. maritima spp. maritima ) in Dorchester, Somerset, Wicomico, and Worcester Counties in Maryland, and Kent and Sussex Counties in Delaware; Georgia alder ( A. maritima spp. georgiensis ) in Bartow County, Georgia; and Oklahoma alder ( Alnus maritima spp. oklahomensis ) in Pontotoc and Johnston Counties of south-central Oklahoma. The seaside alder occupies at least 35 known watersheds, and the species' current distribution is similar to its historical distribution. We are aware of additional records of occurrence on private lands; however, supporting information on those records is not available to us, and, therefore, these records are not included in our assessment.

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to seaside alder, and we evaluated all relevant factors under the five listing factors, including any regulatory mechanisms and conservation measures addressing these stressors. The primary stressors to seaside alder, which vary depending on the subspecies, include changes to natural processes such as drought cycles, air temperature, precipitation patterns, flooding regimes, and sea level rise, or human-mediated actions ( e.g., human population growth, development, and mining) that cause decreased water quantity and water quality degradation. Despite effects from these stressors, seaside alder has maintained resilient populations throughout its range and in each of the subspecies' ranges, and is expected to continue to do so into the foreseeable future. The species is represented by three genetically diverse subspecies, which occur in many types of freshwater habitat (tidal rivers, marshes and ponds, and spring-fed streams and rivers) that are adapted to three distinct climates (mid-Atlantic, Southeast, and Southwest); thus, the species is expected to retain its ability to adapt to changes in its environment. In summary, our review of the best available scientific and commercial information indicates that seaside alder does not meet the definition of an endangered species or threatened species. We also find that Delmarva alder, Georgia alder, and Oklahoma alder do not meet the definition of endangered species or threatened species. Therefore, we find that listing seaside alder or any of its subspecies as an endangered or threatened species under the Act is not warranted. A detailed discussion of the basis for this finding can be found in the seaside alder species assessment form and other supporting documents (see ADDRESSES , above).

On October 15, 2008, we received a petition from WildEarth Guardians, to list six species of freshwater mussels, including the smooth pimpleback, as endangered or threatened species under the Act. On December 15, 2009, we published a 90-day finding in the Federal Register (74 FR 66260), concluding that the petition presented substantial information indicating that listing the smooth pimpleback may be warranted. On October 6, 2011, we published a 12-month finding in the Federal Register (76 FR 62166) in which we stated that listing the smooth pimpleback was warranted. However, listing was precluded at that time by higher priority actions, and the species was added to the candidate species list. From 2012 through 2016, we addressed the status of the smooth pimpleback annually in our candidate notice of review, with the determination that listing was warranted but precluded (see 77 FR 69994, November 21, 2012; 78 FR 70104, November 22, 2013; 79 FR 72450, December 5, 2014; 80 FR 80584, December 24, 2015; 81 FR 87246, December 2, 2016).

Recent genetic studies revealed that smooth pimpleback is synonymous with pimpleback, a wide-ranging species that is very common. These studies have been widely accepted by the relevant scientific community and the Service. Due to being synonymized with pimpleback, smooth pimpleback is not a valid taxonomic entity; does not meet the definition of a species or subspecies under the Act; and, as a result, cannot warrant listing under the Act. A detailed discussion of the basis for this finding can be found in the smooth pimpleback species assessment form and other supporting documents (see ADDRESSES , above).

On February 3, 2015, we received a petition from the Center for Biological Diversity to list the tricolored blackbird as an endangered or threatened species under the Act. On September 18, 2015, we published a 90-day finding in the Federal Register (80 FR 56423), concluding that the petition presented substantial information indicating that listing the tricolored blackbird may be warranted. This document constitutes the 12-month finding on the February 3, 2015, petition to list the tricolored blackbird under the Act.

The tricolored blackbird occurs throughout most of lower-elevation California and additional smaller nesting colonies in Oregon, Washington, and Nevada in the United States, and in Baja California, Mexico. The tricolored blackbird exhibits a unique breeding behavior that is a combination of colonial, nomadic, and itinerant behaviors. Its colonial and generally highly synchronous nesting behavior is thought to be an adaptation to unpredictable insect outbreaks and/or high rates of predation pressure, as well as allowing the species to exploit available nesting and foraging opportunities in a changing environment. The species requires a protected nesting substrate (a vegetative substrate that is sturdy enough for nest placement and is protected by being surrounded by water, by having spines, and/or by being dense), such as wetland habitats with cattails and/or bulrushes; spiny, nonnative plants such as Himalayan blackberry or thistle; or silage crops grown for dairy cattle feed. Young tricolored blackbirds are fed a diet comprised almost entirely of insects, and adult blackbirds consume both native insects and other plant material such as grains and seeds.

We have carefully assessed the best scientific and commercial information regarding the past, present, and future threats to the tricolored blackbird, and we evaluated all relevant factors under the five listing factors, including any regulatory mechanisms and conservation measures addressing these stressors. The tricolored blackbird is currently facing many threats throughout its range, and the species has undergone a substantial decline in recent decades. Still, more than 100,000 tricolored blackbirds were recorded in the most recent Statewide surveys, and individuals in the central portions of the species' range are well-connected, with birds frequently shifting their use of nesting sites and regions based on availability of suitable habitat.

Many threats are continuing to impact the tricolored blackbird and its habitat, and drought may result in a decrease in habitat quality across the species' range. Furthermore, several researchers have indicated that, as a colonial nesting species, the tricolored blackbird may undergo a similarly rapid decline as have other colonial nesting birds. However, the tricolored blackbird has shown high nesting success in both small and large colonies, indicating that they may be adaptable to changing colony size as well as changing nesting habitat types. Additionally, regulatory mechanisms such as the California Endangered Species Act are currently acting to ameliorate the severity of some existing threats, such as impacts to colonies nesting in silage fields. Furthermore, the most likely future scenarios project that the tricolored blackbird will maintain its current resiliency, representation, or redundancy, or undergo only a slight decrease in habitat and population condition in some regions in the foreseeable future. Therefore, we find that listing the tricolored blackbird as endangered or threatened is not warranted. A detailed discussion of the basis for this finding can be found in the tricolored blackbird species assessment form and other supporting documents (see ADDRESSES , above).

On September 15, 2015, we received a petition from Defenders of Wildlife requesting that the yellow-banded bumble bee be listed as an endangered or threatened species and critical habitat be designated for this species under the Act. On March 16, 2016, we published a 90-day finding in the Federal Register (81 FR 14058), concluding that the petition presented substantial scientific or commercial information indicating that listing the yellow-banded bumble bee may be warranted. This document constitutes the 12-month finding on the September 15, 2015, petition to list the yellow-banded bumble bee under the Act.

The yellow-banded bumble bee is an early-spring emerging bumble bee living in colonies that include a queen, worker bees (sterile females), and reproductives (new queens and fertile males). Colonies are annual, and the founding queen, workers, and males all die in the late summer or early fall. The mated new queens overwinter in a state of dormancy. Adult yellow-banded bumble bees have black hairs on their heads, legs, and base of the abdomen; yellow hairs on the front of the thorax and second and third segments; and slightly brown wings.

The yellow-banded bumble bee's current range includes Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, New Hampshire, New York, North Dakota, Pennsylvania, South Dakota, Vermont, West Virginia, and Wisconsin in the United States; and Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland, Northwest Territories, Nova Scotia, Ontario, Prince Edward Island, Quebec, Saskatchewan, and Yukon Territory in Canada. The species inhabits a variety of forest types, including riparian woodland, mature deciduous and conifer forests, and treeline conifer forests. The species also uses wetlands, undisturbed bogs, alpine tundra, and prairies. The yellow-banded bumble bee requires diverse and abundant floral resources in proximity to nesting habitat throughout the spring, summer, and fall. It also requires suitable nesting and overwintering habitat.

We have carefully assessed the best scientific and commercial information regarding the past, present, and future threats to the yellow-banded bumble bee, and we evaluated all relevant factors under the five listing factors, as well as existing conservation measures and the synergistic effects of the threats. The primary stressors are habitat loss and fragmentation, pesticide use, pathogens and parasites, the effects of small and isolated populations, and the effects of climate change.

In the species' current condition, there is representation ( i.e., occupancy) across the majority of the yellow-banded bumble bee's historical range. Although there has been a reduction in range with the apparent extirpation of the species from three ecoregions, the species continues to be found across 15 ecoregions, spanning much of the northern United States and much of Canada. Also, while the relative abundance has declined, there remains relatively consistent numbers of yellow-banded bumble bees captured across multiple States since the 1950s. The continued captures of the yellow-banded bumble bee indicate ongoing resiliency and redundancy supporting multiple populations of the species across its range. The continued persistence of occupied habitat across the species' range provides sufficient resiliency, redundancy, and representation to sustain the species beyond the near term.

We evaluated four future scenarios for the yellow-banded bumble bee. The future scenarios all retain resiliency, redundancy, and representation to a sufficient degree such that the risk is low that the species will be in danger of extinction in the foreseeable future. The large range that the yellow-banded bumble bee inhabits provides for redundancy, as populations are distributed across the species' range such that it can withstand a catastrophic event. The species will continue to exhibit high or moderate resiliency in at least four ecoregions that are spread across the species' range; in two of the four future scenarios, seven ecoregions are projected to be in high or moderate resiliency in 20 years. Finally, the species would exhibit representation by continuing to occur across its range in various ecoregions to maintain ecological and genetic diversity. Taking into account the effects of the most likely threats and the potential for cumulative effects to the yellow-banded bumble bee's resource needs, our projections for the viability of the yellow-banded bumble bee in the future are that it will continue to be represented throughout its range, albeit at likely reduced occupancy and relative abundance percentages than currently found.

Our review of the best available scientific and commercial information indicates that the yellow-banded bumble bee is not in danger of extinction throughout all or a significant portion of its range or likely to become endangered within the foreseeable future throughout all or a significant portion of its range. Therefore, we find that listing the yellow-banded bumble bee is not warranted. A detailed discussion of the basis for this finding can be found in the yellow-banded bumble bee species assessment form and other supporting documents (see ADDRESSES , above).

We request that you submit any new information concerning the taxonomy of, biology of, ecology of, status of, or stressors to the Arapahoe snowfly, brook floater, golden orb, Joshua tree, seaside alder, smooth pimpleback, tricolored blackbird, and yellow-banded bumble bee to the appropriate person, as specified under FOR FURTHER INFORMATION CONTACT , whenever it becomes available. New information will help us monitor these species and make appropriate decisions about their conservation and status. We encourage local agencies and stakeholders to continue cooperative monitoring and conservation efforts.

Lists of the references cited in the petition findings are available on the internet at http://www.regulations.gov in the dockets provided above in ADDRESSES and upon request from the appropriate person, as specified under FOR FURTHER INFORMATION CONTACT .

The primary authors of this document are the staff members of the Species Assessment Team, Ecological Services Program.

The authority for this action is section 4 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq. ).