This action, pursuant to 5 U.S.C. 553, proposes an amendment to regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This proposed rule is issued under Marketing Agreement and Order No. 930, both as amended (7 CFR part 930), regulating the handling of tart cherries produced in the states of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin. Part 930 (referred to as the “Order”) is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Board locally administers the Order and is comprised of producers and handlers of tart cherries operating within the production area, and a public member.

The Department of Agriculture (USDA) is issuing this proposed rule in conformance with Executive Orders 13563 and 13175. This proposed rule falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review. Additionally, because this proposed rule does not meet the definition of a significant regulatory action, it does not trigger the requirements contained in Executive Order 13771. See OMB's Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017, titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017).

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the Order now in effect, tart cherry handlers are subject to assessments. Funds to administer the Order are derived from such assessments. It is intended that the assessment rate would be applicable to all assessable tart cherries for the 2019-20 crop year and continue until amended, suspended, or terminated.

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

This proposed rule would decrease the assessment rate from $0.0075, the rate that was established for the 2016-17 and subsequent fiscal years, to $0.00575 per pound of tart cherries handled for the 2019-20 and subsequent fiscal years. Under the marketing order, the Board also recommends an allocation of assessments for operations and for promotion activities. This action would decrease the portion of assessments allocated to research and promotion activities from $0.0065 to $0.005 per pound of tart cherries and decrease the portion allocated to administrative expenses from $0.001 to $0.00075 per pound of tart cherries.

The Order provides authority for the Board, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members are familiar with the Board's needs and with the costs of goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.

For the 2016-17 and subsequent fiscal years, the Board recommended, and USDA approved, an assessment rate that would continue in effect from fiscal year to fiscal year unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Board or other information available to USDA.

The Board met on September 12, 2019, and unanimously recommended 2019-20 expenditures of $1,956,500, and an assessment rate of $0.00575 per pound of tart cherries, divided into $0.005 for promotional expenses and $0.00075 for administrative expenses. In comparison, last year's budgeted expenditures were $2,374,450. The assessment rate of $0.00575 is $0.00175 lower than the rate currently in effect. The Board recommended decreasing the assessment rate to reduce the assessment burden on handlers and utilize funds from the authorized reserve to help cover its expenses.

The major expenditures recommended by the Board for the 2019-20 year include $1,514,500 for research and promotion, $250,000 for salaries and wages, and $130,000 for administrative expenses. Budgeted expenses for these items in 2018-19 were $1,867,450, $275,000, and $130,000, respectively.

The Board derived the recommended assessment rate by considering anticipated expenses, an estimated crop of 230.74 million pounds of tart cherries, and the amount of funds available in the authorized reserve. Income derived from handler assessments, calculated at $1,326,755 (230.74 million pounds × $0.00575/pound), along with interest income and funds from the Board's authorized reserve, would be adequate to cover budgeted expenses of $1,956,500. Funds in the reserve are estimated to be $81,553 at the end of the 2019-20 fiscal year.

The assessment rate proposed in this rule would continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Board or other available information.

Although this assessment rate would be in effect for an indefinite period, the Board will continue to meet prior to or during each fiscal year to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Board meetings are available from the Board or USDA. Board meetings are open to the public and interested persons may express their views at these meetings. USDA would evaluate Board recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking would be undertaken as necessary. The Board's 2019-20 budget and those for subsequent fiscal years will be reviewed and, as appropriate, approved by USDA.

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

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 400 producers of tart cherries in the regulated area and approximately 40 handlers of tart cherries who are subject to regulation under the Order. Small agricultural producers are defined by the Small Business Administration (SBA) as those having annual receipts of less than $1,000,000, and small agricultural service firms have been defined as those whose annual receipts are less than $30,000,000 (13 CFR 121.201).

According to the National Agricultural Statistics Service (NASS) and Board data, the average annual grower price for tart cherries utilized for processing during the 2018-19 season was approximately $0.196 per pound. With total utilization at 288.8 million pounds for the 2018-19 season, the total 2018-19 value of the crop utilized for processing is estimated at $56.6 million. Dividing the crop value by the estimated number of producers (400) yields an estimated average receipt per producer of $141,500. This is well below the SBA threshold for small producers.

A free on board (FOB) price of $0.80 per pound for frozen tart cherries was reported by the Food Institute during the 2018-19 season. Based on utilization, this price represents a good estimate of the price for processed cherries. Multiplying this FOB price by total utilization of 288.8 million pounds results in an estimated handler-level tart cherry value of $231 million. Dividing this figure by the number of handlers (40) yields estimated average annual handler receipts of $5.8 million, which is below the SBA threshold for small agricultural service firms. Assuming a normal distribution, the majority of producers and handlers of tart cherries may be classified as small entities.

This proposal would decrease the assessment rate collected from handlers for the 2019-20 and subsequent fiscal years from $0.0075 to $0.00575 per pound of tart cherries, with $0.005 per pound allocated to promotion and research and $0.00075 per pound allocated to administrative expenses. The Board unanimously recommended 2019-20 expenditures of $1,956,500, and an assessment rate of $0.00575 per pound of tart cherries. The proposed assessment rate of $0.00575 per pound is $0.00175 lower than the 2018-19 rate. The volume of assessable tart cherries for the 2019-20 fiscal year is estimated at 230.74 million. Thus, the $0.00575 rate should provide $1,326,755 in assessment income (230.74 million pounds × $0.00575/pound). Income derived from handler assessments, along with interest income and funds from the Board's authorized reserve, would be adequate to cover budgeted expenses.

The major expenditures recommended by the Board for the 2019-20 year include $1,514,500 for research and promotion, $250,000 for salaries and wages, and $130,000 for administrative expenses. Budgeted expenses for these items in 2018-19 were $1,867,450, $275,000, and $130,000, respectively.

The Board recommended decreasing the assessment rate and utilizing funds from its authorized reserve in order to relieve the assessment burden on handlers. This action would also use the Board's reserve balance and maintain it below the levels authorized under the Order.

Prior to arriving at this budget and assessment rate, the Board considered information from the Board's Executive Committee (Committee). Alternative expenditure levels were discussed by the Committee, which reviewed the relative value of various activities to the tart cherry industry. The Committee determined all program activities were adequately funded and essential to the functionality of the Order; thus, no alternate expenditure levels were deemed appropriate. Additionally, the Board discussed alternatives of maintaining the current assessment rate of $0.0075 per pound or reducing marketing expenditures to achieve a lower rate. However, the Board determined it would be appropriate to reduce the assessment burden to handlers using some of the reserves built up following recurring seasons with large crops. The Board also determined the recommended promotion expenditures, which are lower than in previous seasons, were appropriate and further reduction might hinder sales growth.

Based on these discussions and estimated deliveries, the recommended assessment rate of $0.00575 per pound of tart cherries would provide $1,326,755 in assessment income. Further, the Board recommended allocating $0.005 for promotional expenses and $0.00075 for administrative expenses. The Board determined that assessment revenue, along with funds from the reserve and interest income, would be adequate to cover budgeted expenses for the 2019-20 fiscal year.

A review of historical information and preliminary information pertaining to the upcoming fiscal year indicates that the average grower price for the 2019-20 crop year should be approximately $0.20 per pound of tart cherries. Therefore, the estimated assessment revenue for the 2019-20 crop year as a percentage of total grower revenue would be about 2.9 percent.

This proposed rule would decrease the assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers, and some of the costs may be passed on to producers. However, decreasing the assessment rate reduces the burden on handlers and may also reduce the burden on producers.

The Board's meeting was widely publicized throughout the tart cherry industry. All interested persons were invited to attend the meeting and participate in Board deliberations on all issues. Like all Board meetings, the September 12, 2019, meeting was a public meeting, and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit comments on this proposed rule, including the regulatory and information collection impacts of this action on small businesses.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Order's information collection requirements have been previously approved by the OMB and assigned OMB No. 0581-0177, Tart Cherries Grown in Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin. No changes in those requirements would be necessary as a result of this proposed rule. Should any changes become necessary, they would be submitted to OMB for approval.

This proposed rule would not impose any additional reporting or recordkeeping requirements on either small or large tart cherry handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

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

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

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

A 30-day comment period is provided to allow interested persons to respond to this proposed rule.

For the reasons set forth in the preamble, 7 CFR part 930 is proposed to be amended as follows:

On September 25, 2014, C-10, with assistance from the Union of Concerned Scientists (UCS), submitted a petition for rulemaking to the NRC (ADAMS Accession No. ML14281A124). The NRC docketed the petition on October 8, 2014, and assigned Docket No. PRM-50-109 to the petition. The petitioner requests that the NRC amend its applicable regulations to provide identification techniques for better protection against concrete degradation due to ASR at U.S. nuclear power plants. Specifically, the petitioner requests that the NRC require that all licensees comply with American Concrete Institute (ACI) Committee Report 349.3R, “Evaluation of Existing Nuclear Safety-Related Concrete Structures” (ACI 349.3R), and American Society for Testing and Materials (ASTM) Standard C856-11, “Standard Practice for Petrographic Examination of Hardened Concrete” (ASTM C856-11).

The petitioner previously submitted a request for enforcement action in accordance with § 2.206 of title 10 of the Code of Federal Regulations (10 CFR), “Requests for action under this subpart,” specific to Seabrook Station (ADAMS Accession No. ML16006A002). That petition was rejected by the NRC in a letter dated July 6, 2016 (ADAMS Accession No. ML16169A172), because the request addressed deficiencies within existing NRC rules, similar to those raised in PRM-50-109. While mention of Seabrook Station, which is the only nuclear power plant with a documented occurrence of ASR to date, is included in this document in response to the petitioner's comments, the NRC's focus in this denial is on the generic request that the NRC require that all licensees of nuclear plants comply with ACI 349.3R and ASTM C856-11.

The petitioner raises the following three specific issues in PRM-50-109.

Issue 1: Visual inspections are not adequate to detect ASR, confirm ASR, or provide the current state of ASR damage.

The petitioner asserts that visual inspections are not capable of adequately identifying ASR, confirming ASR, or providing accurate information on the state of ASR damage ( i.e., its effect on structural capacity). The petitioner also asserts that only petrographic examinations (the use of microscopes to examine samples of rock or concrete to determine their mineralogical and chemical characteristics) in accordance with ASTM C856-11 are capable of determining or confirming whether ASR is present and determining the state of ASR damage. The petitioner offers additional information in five areas related to this issue.

A. At an NRC public meeting at Seabrook Station on June 24, 2014, when C-10 asked if the NRC was investigating U.S. nuclear power plants for ASR concrete degradation, the NRC staff responded that ASR concrete degradation could be adequately identified through visual examination.

B. When structural degradation is occurring, the petitioner asserts that it is critical to determine the root cause and confirm the form of degradation. The petitioner also asserts that the NRC has stated that ASR is confirmed only through petrographic examination, and in support of this statement the petitioner references an enclosure to a letter from the licensee for Seabrook Station, NextEra Energy Seabrook, LLC (NextEra) to the NRC, May 1, 2013 (ADAMS Accession No. ML13151A328).

C. Commentaries by materials science expert Dr. Paul Brown, provided by C-10 and the UCS, challenge the central hypothesis in the report submitted by NextEra, “Seabrook Station: Impact of Alkali-Silica Reaction on Concrete Structures and Attachments” (ADAMS Accession No. ML12151A397). As summarized in the petition, Dr. Brown challenges the conclusion in the report that “confinement reduces cracking, and taking a core bore test would no longer represent the context of the structure once removed from the structure.”

D. The petitioner also asserts that the NRC memorandum titled, “Position Paper: In Situ Monitoring of Alkali-Silica Reaction (ASR) Affected Concrete: A Study on Crack Indexing and Damage Rating Index to Assess the Severity of ASR and to Monitor ASR Progression” (ADAMS Accession No. ML13108A047), supports the assertion that visual examination is insufficient to reliably identify ASR or evaluate its state (including contribution to rebar stress). The petitioner cites portions of the paper, which state that ASR can exist without indications of pattern cracking, visible surface cracking may be suppressed by heavy reinforcement while internal damage exists through the depth of the section, and crack mapping alone to determine ASR effects on the structure does not allow for the consideration of rebar stresses.

E. Finally, the petitioner asserts that visual inspections are of limited scope and cannot identify areas of degradation in many portions of concrete structures, such as below-grade portions that cannot be visually examined but are most likely to be exposed to groundwater and be more vulnerable to ASR. The petitioner notes as an example cracking in the concrete wall of the shield building of the Davis-Besse Nuclear Power Station. This condition was discovered in 2011, when a hole was cut through the building's wall to replace the reactor vessel head, but had remained undetected by visual inspections for a long period.

Issue 2: ACI and ASTM codes and standards address the detection and evaluation of ASR damage.

The petitioner asserts that ACI 349.3R provides an acceptable means of protecting against excessive ASR concrete degradation and is endorsed by the NRC in Information Notice (IN) 2011-20, “Concrete Degradation by Alkali-Silica Reaction” (ADAMS Accession No. ML112241029). Quantitative criteria in ACI 349.3R can be used to evaluate inspection results. The petitioner also states that ASTM C856-11 is an acceptable means of conducting petrographic examination.

The petitioner also provided information specific to activities at Seabrook Station related to the implementation of ACI 349.3R and the American Society of Mechanical Engineers (ASME) Boiler and Pressure Vessel Code (BPV Code), Section XI, Subsection IWL. The petitioner states that ACI 349.3R requires the formation of a “composite team,” consisting of qualified civil or structural engineers, concrete inspectors, and technicians familiar with concrete degradation mechanisms and long-term performance issues, to effectively identify and evaluate concrete degradation, including degradation due to ASR.

The petitioner claims that NextEra did not have a composite team as specified in ACI 349.3R, and since it became the owner of Seabrook Station, NextEra has not had a trained and dedicated “responsible engineer” conducting the inspections to accurately record the results or take further action as required. The petitioner asserts that NextEra failed to test the concrete despite the extent of cracking visibly increasing, and that NextEra never had a code-certified “responsible engineer” doing the visual inspections of the Seabrook containment in accordance with ASME BPV Code, Section XI, Subsection IWL.

Issue 3: Regulations should require compliance with ACI 349.3R and ASTM C856-11.

The petitioner states that, although both ACI 349.3R and ASTM C856-11 are endorsed by the NRC, the NRC does not require nuclear power plant licensees to implement either of these standards.

To support the position that use of the standards should be required, the petitioner offers Seabrook Station's ASR concrete degradation as an example that would have been identified before it caused moderate to severe degradation in seismic Category I structures if the NRC had required compliance with these existing standards. The petitioner claims that when NextEra determined 131 locations with “assumed” ASR visual signs within multiple power-block structures during 2012, further engineering evaluations were not done. The petitioner also claims that, since discovering the situation, the NRC has not required Seabrook Station to: (1) Test a core bore taken from the containment; (2) use certified laboratory testing of key material properties to determine the extent of condition; or (3) obtain the data necessary to monitor the rate of progression.

The NRC published a notice of docketing of PRM-50-109 on January 12, 2015 (80 FR 1476). The public comment period closed on March 30, 2015. Comment submissions on this petition are available electronically via https://www.regulations.gov using docket number NRC-2014-0257.

The NRC received 10 different comment submissions on the PRM. A comment submission is a communication or document submitted to the NRC by an individual or entity, with one or more individual comments addressing a subject or issue. Eight of the comment submissions were received during the public comment period. Two of the comment submissions were received after the comment period closed. The NRC determined that it was practical to consider the comment submissions received after the public comment period closed and considered all 10 received. Key information for each comment submission is provided in the following table.

Seven commenters expressed support for the PRM and proposed identification techniques, while the three remaining commenters (numbers 7, 8, and 10) opposed the PRM in part or in whole. Based on similarity of content, the public comments were grouped into six bins. The NRC reviewed and considered the comments in making its decision to deny the PRM. Summaries of each bin and the NRC's responses are provided in the following discussion in an order that provides appropriate context for the response to each of the comment bins.

Comment Bin 1: Existing inspection techniques will not adequately detect concrete degradation due to ASR, and C-10's proposed solutions (i.e., requiring compliance with ACI 349.3R and ASTM C856-11 via regulation) are appropriate to adequately detect ASR degradation. (Submission 4, Submission 5, Submission 6)

NRC Response: Although the NRC agrees with the petitioner that visual inspections are not enough to positively confirm ASR, the staff finds visual inspection sufficient to detect ASR concrete degradation before the safety function of a structure or component would be significantly degraded. The NRC disagrees with the comments that ACI 349.3R and ASTM C856-11 should be regulatory requirements. The current ASR literature and case history, as described in Section III and referenced in Section V, “Availability of Documents,” of this document, provide no evidence that ASR would degrade the safety function of a structure or component before it expands to a degree that would cause visible symptoms, such as cracking. Existing regulations require inspection methods that can detect applicable degradation mechanisms (including ASR) and require that significant degradation regardless of cause be addressed appropriately through additional plant-specific inspections or structural evaluations. Furthermore, the documents (ACI 349.3R and ASTM C856-11) do not provide specific guidance for identifying ASR degradation in structures. Therefore, requiring their use via regulation would not provide improved techniques for identifying ASR degradation. Additional details on the NRC's position can be found in Section III, “Reasons for Denial,” of this document.

Comment Bin 2: The NRC should grant the C-10 petition for rulemaking because visual inspection of ASR concrete degradation is insufficient. (Submission 1, Submission 2)

NRC Response: The NRC disagrees with this comment. As indicated in the response to Comment Bin 1, there is no evidence in current ASR literature and case history that ASR would degrade the safety function of a structure or component before it expands to a degree that would cause visible symptoms. In addition, NRC staff finds visual inspection sufficient to detect ASR concrete degradation before the safety function of a structure or component would be degraded. Moreover, the commenters did not provide a basis for their position that visual inspection of concrete degradation is insufficient to identify ASR that would lead to unacceptable changes in concrete structural properties.

Comment Bin 3: The NRC should investigate the concrete cracks at Seabrook Station because the concrete degradation poses serious safety concerns. (Submission 3)

NRC Response: The NRC views this comment as a request for regulatory action outside the scope of PRM-50-109. As discussed in Section III of this document, the NRC has referred this comment to its Region I allegations staff, and has advised the commenter of this request.

Comment Bin 4: The nuclear industry does not believe that rulemaking is necessary to resolve issues related to inspecting concrete for ASR degradation. Following the issuance of NRC IN 2011-20, licensees took appropriate actions by: (a) Recording the issue in the Institute for Nuclear Power Operations Operating Experience system; and (b) updating their Structures Monitoring Program, improving procedures, and informing responsible individuals concerning examination for conditions that could potentially indicate the presence of ASR. In addition, there already exist ample regulatory requirements to ensure appropriate attention is given to potentially degraded concrete, including due to ASR. (Submission 7, Submission 10)

NRC Response: The NRC agrees with the comment. By issuing IN 2011-20, the NRC made the U.S. nuclear power industry aware of the operating experience related to ASR concrete degradation at Seabrook Station. Licensees are expected to evaluate INs in their operating experience programs and to incorporate, as appropriate and applicable, the information into their monitoring programs and procedures. Multiple license renewal applications (LRAs) submitted after the issuance of IN 2011-20 included information that demonstrates the monitoring programs have been updated to inspect for ASR degradation, regardless of the aggregate reactivity test results from construction (see, for example, Section 3.5.2.2.2.1.2 of LaSalle County Station LRA (ADAMS Accession No. ML14343A849), Waterford Steam Electric Station LRA (ADAMS Accession No. ML16088A324), and River Bend Station LRA (ADAMS Accession No. ML17153A282)).

Existing regulations such as § 50.55a, “Codes and Standards”; § 50.65, “Requirements for monitoring the effectiveness of maintenance at nuclear power plants”; 10 CFR part 50, appendix B, “Quality Assurance Criteria for Nuclear Power Plants and Fuel Reprocessing Plants”; 10 CFR part 50, appendix J, “Primary Reactor Containment Leakage Testing for Water-Cooled Power Reactors”; and 10 CFR part 54, “Requirements for Renewal of Operating Licenses for Nuclear Power Plants,” require licensees to monitor the performance or condition of structures and take corrective action to address degraded or nonconforming conditions in a manner commensurate with the safety significance of the structures. Compliance with these regulations provides reasonable assurance that affected structures remain capable of performing their intended functions. Further, the NRC confirms the acceptability of licensees' approaches through processes such as the reactor oversight process, license renewal, and review of licensees' responses to generic communications ( e.g., bulletins, generic letters, and INs that address significant industry events, operating experience, and degradation-specific issues that may have generic applicability). The existing regulatory requirements and processes provide reasonable assurance of adequate protection of public health and safety against the potential results of degradation of concrete structures; therefore, it is not necessary to amend the NRC's regulations.

The technical comments and clarifications made by the commenters related to ACI 349.3R and the role of visual inspections are addressed in Section III of this document.

Comment Bin 5: New rulemaking is not necessary to resolve issues related to inspecting concrete for ASR. The ACI 349.3R and ASTM C856-11 have been used for investigation of ASR conditions at Seabrook Station; however, neither standard provides inspectors with new or improved means to identify, monitor, or assess ASR-impacted structures, as implied by the petition. The commenter questions the basis of the petition, including misconceptions and factual errors made in the petition concerning NextEra activities at Seabrook Station. (Submission 8)

NRC Response: The NRC agrees with the comment that new rulemaking is not needed. The guidance in ACI 349.3R is primarily based on visual inspection, addresses only commonly occurring degradation conditions in nuclear structures, and provides very limited guidance with regard to ASR identification, monitoring, and evaluation. Therefore, it is not considered an authoritative document for ASR. ASTM C856-11 is a consensus standard that provides an established method for conducting petrography that can be used to confirm the diagnosis of ASR. Neither ACI 349.3R nor ASTM C856-11, however, provides a method for monitoring progression, or evaluating and quantifying observed ASR effects on structural capacity or performance. These documents have been in existence since 1996 (for ACI 349.3R) and 1977 (for ASTM C856-11) and do not provide any new or improved methods beyond what is already standard practice in the concrete industry.

The portions of the comment concerning NextEra activities at Seabrook Station are addressed in Section III of this document.

Comment Bin 6: Current ASME testing protocols should be followed. Ultrasonic testing should be conducted for reactor pressure vessels to test for defects and radiation filters should be installed on pressure vents as a post-Fukushima precaution. (Submission 9)

NRC Response: As stated in Section III of this document, Section 50.55a(g)(4) requires compliance with the ASME BPV Code, Section XI. The ASME BPV Code, Section XI, Subsection IWL, provides techniques for examination and evaluation of concrete surfaces that licensees follow under their licensing bases. The comments pertaining to ultrasonic testing of reactor pressure vessels and installation of radiation filters are not related to ASR degradation and are outside the scope of PRM-50-109.

The NRC has determined that rulemaking, as requested in the petition, is not needed for reasonable assurance of adequate protection of public health and safety at nuclear power plants with respect to ASR. The NRC's evaluation of the three issues raised in PRM-50-109 are set forth below.

Issue 1: Visual Inspections are not adequate to detect ASR, confirm ASR, or provide the current state of ASR damage.

The NRC agrees with the petitioner that visual inspections are not enough to positively confirm ASR. However, given the slow progression of ASR, visual inspections are sufficient to identify manifestations of potentially damaging ASR before the safety function of a structure or component would be degraded. This would be sufficient to inform whether further actions should be taken. Therefore, the NRC's position is that visual examination is acceptable for routinely monitoring concrete structures to identify areas of potential structural distress or degradation, including degradation due to ASR. This position is supported by the current ASR literature and case history, as referenced in Section V of this document. The occurrence of ASR expansion results in one or more common visual indications ( e.g., expansion causing deformation, movement, or displacement; cracking; surface staining; gel exudations; pop-outs) prior to causing significant structural degradation (as shown in Federal Highway Administration (FHWA)-HIF-09-004 and Canadian Standards Association (CSA) A864-00, referenced in Section V of this document). However, the presence of one or more of these visual symptoms is not necessarily an indication that ASR is the main factor responsible for the observed symptoms. If there are visual indications, the presence or absence of ASR should be confirmed by an acceptable method such as petrographic examination.

Based on this information, the NRC maintains that visual examination is an acceptable method for detecting indications of ASR degradation. Once ASR is suspected based on visual indications, the licensee would need to conduct additional inspections, testing (non-destructive or invasive), petrographic analysis, or structural evaluations, as appropriate to the specific case, to evaluate the effects of ASR on structural performance under design loads. This general approach is similar to and consistent with the approach recommended in literature related to ASR ( e.g., FHWA-HIF-09-004 and guidance by the Institution of Structural Engineers, referenced in Section V of this document).

The NRC evaluated the following five areas in which the petitioner provided additional information related to this issue.

A. Regarding the statements made by the NRC staff during the June 24, 2014, public meeting the NRC staff stated that it finds the use of visual examination acceptable for routine periodic monitoring, in implementing a structures monitoring program under § 50.65 and the containment inservice inspection program under § 50.55a, and in identifying the general condition of concrete structures and areas that are suspected to have deterioration or distress due to any degradation mechanism, including ASR. If the licensee identifies visual indications of ASR, the next step would be to confirm ASR by petrographic examination or other acceptable methods, and conduct further assessments, as necessary, to determine the impact on the structure's intended functions and the need for corrective actions, as required by appendix B to 10 CFR part 50. While visual inspections alone would not confirm the presence or absence of ASR, a petrographic examination of concrete is not necessary prior to manifestation of visual symptoms of ASR, given the minimal impact ASR has on structural performance of reinforced concrete structures at this stage. The NRC maintains its position that visual examination is an acceptable approach for assessing the concrete's general condition and identifying areas of potential structural distress or deterioration, including areas where ASR is suspected.

B. Specific to the petitioner's statement related to the need to determine the root cause of degradation, existing NRC regulations require that licensees promptly identify conditions adverse to quality, determine the cause, and take corrective actions. Specifically, Criterion XVI, “Corrective Action,” of 10 CFR part 50, appendix B requires that conditions adverse to quality such as failures, malfunctions, deficiencies, deviations, defective material and equipment, and nonconformances are promptly identified and corrected. In the case of significant conditions adverse to quality, the measures shall assure that the cause of the condition is determined and corrective action taken to preclude repetition. The NRC agrees that, while other techniques may emerge, petrographic examination of the concrete sample under a microscope is a well-established technique to confirm the presence or absence of ASR at any stage.

Once ASR is confirmed at a site by petrographic examination (conducted after manifestation of characteristic visual symptoms), it is conservative to assume that other structures exhibiting visible symptoms are also affected, based on similarity of materials and environmental exposure conditions. The degradation can then be addressed accordingly.

Appendix B to 10 CFR part 50 already requires the identification of a significant condition adverse to quality, the determination of the cause of the condition through root cause analyses and appropriate follow-up corrective actions. Therefore, a generic revision to the NRC's regulations is not necessary.

C. The NRC has previously responded to the statements referenced by the petitioner from Dr. Paul Brown, which were included in a letter from UCS to the NRC dated November 4, 2013 (ADAMS Accession No. ML13309B606). In a December 6, 2013 response (ADAMS Accession No. ML13340A405), the NRC noted that information from drilled cores may be valuable for assessing the impact of ASR on concrete; however, the use of test data from cores alone may not be an appropriate, realistic indicator of overall structural performance.

Additionally, the NRC notes that ASR literature and case history indicate that ASR has a much more detrimental effect on the mechanical properties of concrete cores and cylinders than on the structural behavior of reinforced concrete structural components and systems (as described in TXDOT Technical Report No. 12-8XXIA006 and the ACI Structural Journal article referenced in Section V of this document). These documents indicate that the empirical relationships in the ACI codes between concrete-cylinder compressive strength and other mechanical properties, including structural capacity, may not necessarily remain valid for ASR-affected structures. Reinforced concrete structures and components respond to load as part of a composite structural system in which there are external restraints, internal confinement, and interaction between the steel reinforcement and the concrete. Therefore, an evaluation of the impact of ASR on performance of affected reinforced concrete structural components and systems should consider the context to obtain a realistic assessment of the impact on structural capacity. The use of core test data in the traditional manner, alone, may not be appropriate or realistic to assess structural performance of ASR-affected structures.

D. Regarding the petitioner's reference to the NRC position paper (ADAMS Accession No. ML13108A047), that document is not an official NRC position on the topic, but rather was prepared by an individual staff member to facilitate internal technical discussion and inform staff review of an issue. The NRC's current position on the role of visual inspections in identifying ASR is set forth in this document. The referenced position paper does not state that visual examination is insufficient to identify indications of ASR. However, it does note that surface cracking or crack mapping, alone, may not indicate the severity of ASR degradation and is not adequate to determine structural effects of ASR. The NRC agrees that surface crack mapping alone is not adequate to monitor ASR progression and to address its structural effects. In addition, petrographic examination provides very limited information to evaluate the structural effects of ASR.

Addressing visual indications of a potential concrete-degradation issue does not end with the visual inspection. Under existing NRC regulations, if indications of distress or deterioration are visually identified, licensees are required to address the effects of the observed degradation and demonstrate that the structure remains capable of performing its safety functions. Depending on the observed conditions, this can be accomplished through additional inspections, testing, structural evaluations, or a combination thereof.

E. Specific to the petitioner's comment on the limited scope of visual inspections, the NRC agrees that visual inspections cannot directly identify degradation in inaccessible portions of concrete structures. However, many below-grade structures in nuclear power plants are accessible for visual inspection on the interior face of the concrete. Additionally, ASR degradation or expansion in inaccessible areas would manifest visually in accessible areas, in the form of cracking, displacements, or deformations, before causing a significant structural impact. As noted previously, current ASR literature and case history show that visual inspections are sufficient to identify manifestations of potentially damaging ASR before there would be significant structural impacts. For concrete containment structures, existing regulations in § 50.55a(b)(2)(viii) require evaluation of the acceptability of inaccessible areas when conditions exist in accessible areas that could indicate the presence of, or could result in, degradation to such inaccessible areas. Therefore, existing regulations, regulatory guidance, and licensee programs have provisions to adequately address degradation in inaccessible areas.

The issue of laminar cracking in the shield building at Davis-Besse, referenced by the petitioner, has no connection to ASR detection. Davis-Besse was a unique situation resulting from a combination of extreme environmental conditions and the design configuration of the shield building. The licensee evaluated the issue, including operability determinations and root cause analysis in its corrective action program; and the NRC's continued oversight of the issue has been documented in a series of NRC inspection reports, the latest of which is IR 05000346/2014008, dated May 28, 2015 (ADAMS Accession No. ML15148A489).

Issue 2: Codes and standards exist for detecting and evaluating ASR damage.

The NRC disagrees that there are consensus codes or standards sufficient to provide guidance for detecting and evaluating ASR damage. The scope of both ACI 349.3R and ASTM C856-11 are discussed separately below.

A. The ACI 349.3R is an ACI committee technical report intended to provide recommended guidance for developing and implementing a procedure for inspection and evaluation of many common concrete degradation mechanisms in nuclear concrete structures. It contains only very limited general information regarding ASR. ASR is not a common condition in nuclear power plants, and the quantitative evaluation criteria provided in the document have little or no specific applicability to ASR degradation. Therefore, ACI 349.3R is not an authoritative document to address and evaluate the impact of ASR on intended functions of affected structures.

The discussion of evaluation techniques in ACI 349.3R recommends visual inspection as the initial technique used for any evaluation, and states that visual inspection can provide significant quantitative and qualitative data regarding structural performance and the extent of any degradation. The recommended approach places emphasis on the use of general condition survey practices (visual inspection) in the evaluation, supplemented by additional testing or analysis as needed, based on the results of the general survey. Chapter 5, “Evaluation Criteria,” of ACI 349.3R states: “these guidelines focus on common conditions that have a higher probability of occurrence and are not meant to be all-inclusive. These criteria primarily address the classification and treatment of visual inspection findings because this technique will have the greatest usage.”

Although ACI 349.3R provides useful general guidance for the development and implementation of a monitoring plan for concrete structures, the NRC has neither formally endorsed nor approved it for use. Instead, IN 2011-20 simply mentions ACI 349.3R as a resource where additional information may be found regarding visual inspections (ADAMS Accession No. ML112241029). Since ASR degradation would need to be addressed on a degradation-specific and plant-specific basis, requiring the use of ACI 349.3R would not provide better protection against ASR concrete degradation than the current NRC requirements.

Related to the petitioner's comments on “composite teams,” the NRC agrees that qualified personnel should be used to conduct activities pertaining to safety-related functions of structures, systems, and components (SSCs). Existing regulations provide for this in the quality assurance program requirements under appendix B to 10 CFR part 50. This appendix requires applicants and licensees to establish and implement a quality assurance program that applies to all activities affecting the safety-related functions of SSCs. This program specifies controls to provide adequate confidence that SSCs will perform satisfactorily in service, including appropriate qualification and training of personnel performing activities affecting quality to assure suitable proficiency. This adequate confidence is part of the basis for concluding that reasonable assurance of adequate protection is provided. The ASME BPV Code, Section XI, Subsection IWL, defines specific qualifications and responsibilities of the “responsible engineer,” who evaluates the examination results and the condition of the structural concrete related to the containment. Section 50.55a(g)(4) requires compliance with the ASME BPV Code, Section XI. In addition to § 50.55a requirements for containments, safety-related structures are monitored under § 50.65 (the maintenance rule), and the associated qualification requirements are typically provided in the licensee's implementing procedures, based on their 10 CFR part 50, appendix B program.

As for the petitioner's claim related to the implementation of ACI 349.3R at Seabrook Station, including the formation of a composite team, this topic is outside the scope of the NRC's consideration of the generic rulemaking action in response to PRM-50-109. However, this apparent claim of licensee wrongdoing was considered by the NRC's allegations staff in Region I. After discussions with the petitioner, it was confirmed that the petitioner cited the issues with NextEra as examples of its concerns with regulations and did not intend the issues to be considered as allegations.

B. Regarding the petitioner's comments on ASTM C856-11, although the NRC has neither formally endorsed nor approved its use, the NRC agrees that ASTM C856-11 is a consensus standard that details how to conduct petrographic analysis of concrete bores and provides an acceptable method to positively confirm the diagnosis of ASR. However, it does not provide any guidance on when cores should be taken, from where cores should be taken, how many cores should be taken, or how frequently cores should be taken. Also, it does not provide a method to evaluate ASR damage for impact on structural performance.

ASTM C856-11 outlines procedures for the petrographic examination of samples of hardened concrete for a variety of purposes. One of the purposes of this consensus standard is identifying visual evidence to establish whether ASR has taken place, what aggregate constituents were affected, and what evidence of the reaction exists. Petrographic examination provides an assessment of the extent of ASR gel development and its intrusion into the pores of the concrete sample; however, petrographic examination does not indicate the impact of the ASR reaction on the structural performance under design loads. Furthermore, ASTM C856-11 does not provide any guidance on monitoring or evaluating a concrete structure, such as when to take cores, or which portion of a structure should be evaluated via core bores.

Materials laboratories that perform petrographic examination of hardened concrete samples typically follow the current ASTM C856 standard practice for the application, unless another specific procedure is specified in the request. The standard to which a plant-specific petrographic examination is performed is specified by the licensee and not addressed in the regulations. However, appendix B to 10 CFR part 50 requires licensees to ensure that activities affecting safety-related functions are controlled to provide adequate confidence that SSCs will perform satisfactorily in service. Also, 10 CFR part 50, appendix A, “General Design Criteria for Nuclear Power Plants,” Criterion 1, “Quality standards and records,” requires, in part, that “where generally recognized codes and standards are used, they shall be identified and evaluated to determine their applicability, adequacy, and sufficiency and shall be supplemented or modified as necessary to assure a quality product in keeping with the required safety function. ” Therefore, the licensee must ensure the analysis is sufficient to identify ASR.

In summary, both ACI 349.3R and ASTM C856-11 provide useful guidance and methods licensees may adopt, as applicable, to meet requirements in existing NRC regulations, such as § 50.55a, § 50.65, and 10 CFR part 54. However, neither of the documents provide methods to comprehensively address the long-term structural impact and management of ASR degradation.

Issue 3: Regulations should require compliance with ACI 349.3R and ASTM C856-11.

The NRC disagrees that its regulations need to be revised to require compliance with ACI 349.3R and ASTM C856-11. The NRC's existing regulations are sufficient to provide reasonable assurance of adequate protection of public health and safety due to concrete degradation, including ASR.

The petition does not take into account the NRC's existing regulatory requirements that each nuclear power reactor licensee must meet to demonstrate the ongoing capability of structures to perform their intended safety functions. The NRC's regulatory requirements are applicable to all operating reactors and focused on overall structure and component performance requirements necessary to maintain intended safety functions. The NRC's regulations do not typically prescribe how licensees must meet the requirements, nor do the regulations normally address degradation-specific issues. The following discussion identifies and briefly summarizes the relevant regulatory requirements and processes and explains how they require licensees to address ASR before it becomes a safety issue.

• Section 50.65 requires licensees to monitor the performance or condition of SSCs under its scope, including safety-related structures, considering industry-wide operating experience, in a manner sufficient to provide reasonable assurance that these SSCs are capable of fulfilling their intended functions. For structures, this requirement is normally met by periodically monitoring their condition on a frequency that is commensurate with their safety significance and condition. If the basic assessments identify degradation, additional degradation-specific condition monitoring is required, along with more frequent assessments until the degradation is addressed. Regulatory Guide (RG) 1.160, “Monitoring the Effectiveness of Maintenance at Nuclear Power Plants,” provides guidance on methods acceptable to the NRC staff for implementation of the maintenance rule and includes the attributes of an acceptable structural monitoring program. In summary, § 50.65 already requires structural assessments that are adequate to detect visual indications of ASR before it would pose a significant structural concern.

• Criterion XVI, “Corrective Action,” of appendix B to 10 CFR part 50 requires licensees to implement a corrective action program to assure that conditions adverse to quality and non-conformances are promptly identified and corrected. In the case of significant conditions adverse to quality, the measures shall assure that the cause of the condition is determined, and corrective action is taken to preclude repetition. This requirement applies to all degradation mechanisms, including ASR. In the case of ASR, a licensee would have to identify the root cause of the degradation and address the degradation, such that intended safety functions are not impacted. Accordingly, Criterion XVI is an NRC regulatory requirement that provides for the identification and further technical evaluation of ASR, before there would be significant degradation to the structural integrity of safety-related concrete structures at nuclear power plants.

• Section 50.55a(g)(4) requires licensees to inspect concrete containments in accordance with the ASME BPV Code, Section XI, Subsection IWL, as incorporated by reference and subject to conditions. Subsection IWL requires that a general visual examination of all accessible containment concrete surfaces be conducted every 5 years by qualified personnel under the direction of the “responsible engineer.” Further, Subsection IWL requires a detailed visual examination to determine the magnitude and extent of deterioration and distress of suspect containment concrete surfaces initially detected by general visual examinations. Subsection IWL specifies acceptance standards based on acceptance by examination, acceptance by engineering evaluation (requires preparation of an engineering evaluation report including cause of the condition), or acceptance by repair/replacement. In accordance with the condition on use of Section XI in § 50.55a(b)(2)(viii)(E), licensees must evaluate the acceptability of inaccessible areas when conditions exist in accessible areas that could indicate the presence of or result in degradation to such inaccessible areas. These requirements are designed to ensure that visual indications of ASR will be detected prior to causing significant structural degradation that could impact the intended safety function of the containment. Accordingly, § 50.55a is a requirement that provides for the identification and further technical evaluation of ASR, before there would be significant degradation of structural integrity of concrete containment structures at nuclear power plants.

• Appendix J to 10 CFR part 50, “Primary Reactor Containment Leakage Testing Requirements for Water Cooled Reactors,” requires that primary reactor containments periodically meet the leakage-rate test requirements to ensure that (a) leakage does not exceed allowable rates listed in the technical specifications; and (b) integrity of the containment structure is maintained during its service life. This regulation requires periodic performance monitoring of the containment to demonstrate that the containment can perform its intended safety function, regardless of identified degradation. If the containment were unable to meet the requirements of 10 CFR part 50, appendix J, it would be declared inoperable and the plant could not return to operation until the issue was addressed. Accordingly, appendix J of 10 CFR part 50 is a regulatory requirement that provides for the identification and technical evaluation of ASR, before there would be significant degradation of structural integrity of concrete containment structures at nuclear power plants.

• Section 54.21(a)(3) requires applicants for license renewal to demonstrate that the effects of aging will be adequately managed, such that the intended functions of structures and components subject to aging management are maintained, consistent with the current licensing basis for the period of extended operation. Regulatory guidance for developing aging management programs, including for ASR aging effects on concrete structures, is provided in NUREG-1801, “Generic Aging Lessons Learned Report” (GALL Report). Any licensee applying for license renewal must have a structural aging management program in place that can identify indications of concrete degradation, including degradation due to ASR, before it becomes an issue that could impact an intended safety function. Accordingly, § 54.21(a)(3) is a regulatory requirement that provides for the identification and further technical evaluation of ASR, before there is significant degradation to the structural integrity of safety-related concrete structures at nuclear power plants.

• The Reactor Oversight Process (ROP) is the process that the NRC uses to verify that power reactors are operating in accordance with NRC rules and regulations. Under the ROP, the NRC conducts routine baseline inspections, problem identification and resolution inspections, reactive inspections, and other assessments of plant performance. If licensees are not properly meeting the regulations, the NRC can take actions to protect public health and safety.

• The generic communications process is used to address potential generic issues that are safety significant and may necessitate action by licensees to resolve. Generic communications, which include bulletins, generic letters and INs, are used to convey safety significant issues and operating experience, including degradation-specific issues. The NRC has issued a generic communication (IN 2011-20) to inform the industry of the generic impacts of ASR. Information about the NRC's Generic Communications Program is available at https://www.nrc.gov/about-nrc/regulatory/gencomms.html .

• The enforcement process may be used if licensees fail to adequately address safety-significant issues, consistent with the regulatory requirements as outlined above. The NRC may use enforcement actions, including issuing orders pursuant to § 2.202, “Orders,” to modify, suspend, or revoke a license if ASR becomes a safety-significant issue that a licensee is not adequately addressing.

In addition to these generic requirements and processes, the GALL Report (NUREG-1801) makes specific reference to ACI 349.3R in its guidance for aging management programs (AMPs). AMP XI.S6, “Structures Monitoring,” recommends that visual inspection be used to identify structural distress or deterioration of concrete, such as that described in ACI 201.1R and ACI 349.3R. In addition, the GALL Report notes that the personnel qualifications in Chapter 7 and the evaluation criteria in Chapter 5 of ACI 349.3R are acceptable for concrete structures. However, the GALL Report also notes that use of plant-specific criteria may also be justified. Although ACI 349.3R is one acceptable method to monitor concrete structures for degradation, it is not the only method, and so there is no need for the NRC to require its exclusive use via regulation.

With respect to ASTM C856-11, the NRC agrees that it is an acceptable and established consensus testing standard for conducting petrographic examination of hardened concrete that can be used to confirm the diagnosis of ASR. However, as discussed previously, the NRC's existing regulations in 10 CFR part 50, appendix A and appendix B, ensure appropriate methods or standards are used when conducting tests associated with safety-related structures. Therefore, there is no need to require the use of ASTM C856-11 through regulation.

The NRC also considered whether ASR concrete degradation raises new safety concerns that would justify additional regulatory requirements for all licensees beyond those already included in NRC regulations. While it is possible that there could be plants that used a potentially reactive aggregate in their concrete, the NRC is not aware of any U.S. nuclear power plants, other than Seabrook Station, that have a documented occurrence of ASR. The NRC notes that the use of a potentially reactive aggregate does not necessarily result in the occurrence of ASR. In addition to reactive aggregates, relatively high alkali content in the cement, and high relative humidity levels are necessary for ASR to occur. Through the issuance of IN 2011-20, the NRC has informed licensees of the occurrence of ASR-induced concrete degradation at Seabrook Station, with the expectation that the operating experience would be evaluated by licensees and considered for appropriate action. Thus, the nuclear power industry is aware of the potential for ASR to occur, even if aggregates were screened out based on reactivity or other tests conducted at the time of construction. For the reasons outlined above, the NRC has determined that the agency's existing regulatory structure is sufficient for the identification and technical evaluation of ASR before there is significant degradation to the structural integrity of safety-related concrete structures at nuclear power plants. Therefore, new or amended regulations are not needed to require industry-wide compliance with ACI 349.3R and ASTM C856-11.

The petitioner's claims related to Seabrook Station are outside the scope of the NRC's consideration of the generic rulemaking action in response to PRM-50-109; however, the apparent claims of NRC wrongdoing were forwarded to the NRC's Office of the Inspector General and subsequently to the NRC's allegations staff in Region I. After discussions with the petitioner, the NRC confirmed that the petitioner cited the issues as examples of their concerns with the regulations and did not intend them to be considered as allegations or claims of wrongdoing.

For the reasons cited in Section III of this document, the NRC is denying PRM-50-109 under § 2.803. Existing NRC regulations establish programmatic and design basis requirements that are adequate to address the effects of concrete degradation mechanisms, including ASR, in safety-related structures. Compliance with these regulations, verified through NRC licensing and oversight processes, provide reasonable assurance of adequate protection of public health and safety. Specifically, existing NRC regulations ensure that concrete degradation due to ASR will not result in unacceptable reductions in structural capacity of safety-related structures at nuclear power plants. Therefore, new or amended regulations to require the use of the documents identified in the PRM (ACI 349.3R and ASTM C856-11) to provide better protection against concrete degradation due to ASR are not needed in order to provide reasonable assurance of adequate protection of public health and safety at U.S. nuclear power plants.

The documents identified in the following table are available to interested persons through one or more of the following methods, as indicated. For more information on accessing ADAMS, see the ADDRESSES section of this document.

The NRC received and docketed a petition for rulemaking (PRM), dated February 28, 2019 (ADAMS Accession No. ML19081A015) filed by Dr. Michael D. Meier, on behalf of the Southern Nuclear Operating Company (the petitioner). The NRC published a notice of docketing and request for comment in the Federal Register on June 10, 2019 (84 FR 26774). The petitioner requested that the NRC revise its regulations in part 171 of title 10 of the Code of Federal Regulations (10 CFR), “Annual fees for reactor licenses and fuel cycle licenses and materials licenses, including holders of certificates of compliance, registrations, and quality assurance program approvals and government agencies licensed by the NRC,” related to the start of the assessment of annual fees for a combined license (COL) holder, to align with commencement of “commercial operation”  1 of a licensed nuclear power plant. Specifically, the petitioner requested that the NRC revise the timing of when annual license fees commence for holders of a COL under 10 CFR part 52, “Licenses, certifications, and approvals for nuclear power plants,” in order to coincide with the time when a reactor achieves commercial operation, rather than when a § 52.103(g) finding is issued, which is when the NRC finds that the acceptance criteria in the COL are met and the licensee can begin operating the facility.

The petitioner stated that the issuance of the § 52.103(g) finding will occur prior to reactor startup, and several months before commercial operation of the reactor. The petitioner further noted that during this startup phase, the reactor will not have achieved commercial operation, and the licensee will be incapable of deriving revenue from the production of energy beyond the de minimis amounts from test energy. The petitioner asserted that because commercial operation does not occur until several months after the § 52.103(g) finding, the current language of § 171.15(a), “Annual fees: Reactor licensees and independent spent fuel storage licenses,” does not align with the NRC's stated policy to assess annual fees based on the benefits of receiving authorization to operate. The petitioner proposed that the regulations in § 171.15(a) be revised such that the responsibility of 10 CFR part 52 licensees to pay annual fees under 10 CFR part 171 be imposed at the time when the power reactor is deemed available for commercial operation under the licensee's and/or State regulatory agency's accounting rules.

The NRC identified two main issues in the petition related to the start of the assessment of annual fees for certain nuclear power plants:

Issue 1: To amend the regulations, for 10 CFR part 52 COL holders, to commence the assessment of annual fees at a time after the § 52.103(g) finding is issued.

Issue 2: To amend the regulations, for 10 CFR part 52 COL holders, to commence the assessment of annual fees when the “facility has been declared available for commercial operation under applicable standards of the licensee or the State regulatory commission with jurisdiction over the facility.”

The docketing notice for the petition invited interested persons to submit comments. The comment period closed on July 10, 2019. During the 30-day public comment period, the NRC received five public comment submissions with a total of seven comments, from the Nuclear Energy Institute, industry stakeholders, and one non-government organization. Comments received on the petition will be addressed in the proposed rule, “Revision of Fee Schedules: Fee Recovery for FY 2020” (NRC-2017-0228; RIN 3150-AK10).

The NRC will consider Issue 1 in the rulemaking process.

The petitioner proposed that § 171.15(a) be revised such that the responsibility for 10 CFR part 52 licensees to pay NRC annual fees under 10 CFR part 171 begin when the power reactor is deemed available for commercial operation under the licensee's and/or State regulatory agency's accounting rules. The petitioner stated there could be several months between the issuance of the § 52.103(g) finding and when the reactor has achieved commercial operation—that is, “capable of deriving revenue from the production of energy beyond the de minimis amounts from test energy.”

The NRC regulations at § 171.15 currently require a 10 CFR part 52 COL holder to pay the annual fee upon the Commission's finding under § 52.103(g) that all acceptance criteria in the COL are met. Historically, annual fees commence when a licensee becomes authorized to possess and use licensed material, because this is when the licensee receives the benefits of a license. For 10 CFR part 52 COL holders, the authorization to use the material ( i.e., begin operating the reactor) is currently received when a § 52.103(g) finding is issued. Additionally, the NRC does not base fees on economic considerations such as licensees' economic status, market conditions, or the inability of licensees to pass through costs to its customers.

The NRC is required by statute, the Omnibus Budget Reconciliation Act of 1990, as amended, to apply fairness and equity in the assessment of fees to licensees. The NRC has found that it is fair and equitable to change the timing of when annual fees commence for 10 CFR part 52 licensees from when a § 52.103(g) finding is issued to a time that aligns more closely with becoming fully operational after the start up and initial testing phase. The NRC recognizes that, after the § 52.103(g) finding, fuel must be loaded and power ascension testing must be completed to provide assurance that the facility is fully operational. This process includes written notification to the NRC that successful power ascension testing is competed. 2

Based on the NRC's review of this issue in PRM-171-1 and the public comments received, the NRC also will consider amending the timing regarding the assessment of annual fees to apply to future 10 CFR part 50 power reactor licensees. Public commenters were supportive of the proposed change, including the Nuclear Energy Institute, which represents numerous members of the class of licensees that would be directly impacted by this change. This issue will be considered in the FY 2020 proposed fee rule.

The NRC is denying Issue 2 raised by the petitioner.

The petitioner proposed that the regulations in § 171.15(a) be revised such that the responsibility for NRC annual fees under 10 CFR part 171 for 10 CFR part 52 licensees be imposed at the time when the power reactor is deemed available for commercial operation under the licensee's and/or State regulatory agency's accounting rules. The petitioner recommended revising § 171.15(a) to commence annual fees “after the facility for which such license was issued has been declared available for commercial operation under applicable standards of the licensee or the State regulatory commission with jurisdiction over the facility.” The petitioner also recommended deleting “after the Commission has made the finding under § 52.103(g).”

The Commission has previously addressed this issue in the statement of considerations for the FY 2002 final fee rule (67 FR 42611; June 24, 2002). Specifically, the Commission stated that “the NRC has not based its fees on licensees' economic status, market conditions, or the ability of licensees to pass through the costs to its customers.” In keeping with the agency's safety and security mission, the NRC's regulations deliberately are not tied to economic viability or profitability, and the NRC has not assessed fees based on these concepts.

The petitioner interpreted the statement of considerations from the FY 2007 final fee rule (72 FR 31426, June 6, 2007) to mean that charging annual fees is associated with the “benefits of receiving the NRC's authorization to operate.” The petitioner maintained that this benefit is not gained with the issuance of a § 52.103(g) finding but with the start of commercial operation of the reactor. The petitioner defined commercial operation as the point at which “the power reactor will be capable of generating sufficient energy to reliably serve the licensee's customers and generate sufficient revenue for the licensees to justify imposition of the annual fee.”

For three reasons, the NRC did not elect to adopt this approach. First, in contrast to the point at which power ascension tests are complete, there is no regulatory requirement for a licensee to notify the NRC when the licensee first begins commercial operation. Second, the term “commercial operation” is undefined in NRC regulations. Third, the Commission's longstanding and fundamental policy underlying the fee structure states that the imposition of the annual fee should not be related to the licensee's financial justification if the NRC is to maintain the integrity of the statutorily mandated fee collection requirements. The statement of considerations for the FY 2007 final fee rule, which the petitioner references, discusses that annual fees are based on the benefits of receiving operation authorization, regardless of whether the licensee chooses to operate. The “benefits” received, as described therein, are not related to a determination of when commercial operation begins or the licensee's ability to generate revenue. The collection of annual fees is required to recover the resources needed to regulate each fee class that are not otherwise recovered through charges assessed for specific services in each fee class under 10 CFR part 170, “Fees for facilities, materials, import and export licenses, and other regulatory services under the Atomic Energy Act of 1954, as amended.” Additionally, NRC fees are not based on whether a licensed entity is commercially operating or commercially viable, and the NRC achieves fairness and equity by conducting an annual public rulemaking process to update its fees. Furthermore, an analysis of a licensee's commercial viability is outside the mission of the agency. Therefore, the NRC will not consider amending fee regulations to begin annual fee assessments based upon commercial operation under the licensee's and/or State regulatory agency's accounting rules.

For the reasons cited in this document, the NRC will consider one issue raised in this petition in its rulemaking process and will deny the remaining issue. The NRC will consider the one issue in the FY 2020 proposed fee rule. The NRC notes that acceptance of this portion of the petition into the rulemaking process does not mean that the petitioner's concerns will be addressed exactly as the petitioner requested. The NRC tracks the status of petitions and rules on its websites at https://www.nrc.gov/reading-rm/doc-collections/rulemaking-ruleforum/petitions-by-year.html and https://www.nrc.gov/about-nrc/regulatory/rulemaking/rules-petitions.html . The public may monitor the docket for the rulemaking addressing Issue 1 on the Federal rulemaking website, https://www.regulations.gov, by searching on Docket ID NRC-2017-0228. In addition, the Federal rulemaking website allows members of the public to receive alerts when changes or additions occur in a docket folder. To subscribe: (1) Navigate to the docket folder (NRC-2017-0228); (2) click the “Email Alert” link; and (3) enter an email address and select the frequency for email receipts (daily, weekly, or monthly). As in all rulemakings, the NRC will request and consider public comments during the proposed rule phase before determining the approach that will be the basis for the final rule.

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-2019-0875; Product Identifier 2019-NM-143-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 agency 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 https://www.regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this proposed AD.

The FAA has received a report indicating that installation of a fuselage modification (Mod) doubler common to station (STA) 1640 to STA 1820 at stringer (STR)-34 and STR-40, done as part of a The Boeing Company Model 747-400BCF conversion, interferes with existing required inspections, which are intended to detect fatigue cracks. As a result, the existing inspections, which are required by AD 2008-16-14, Amendment 39-15632 (73 FR 47035, August 13, 2008) (“AD 2008-16-14”), do not provide adequate fatigue crack detection in the area of the modification. This condition, if not addressed, could result in sudden decompression and loss of structural integrity of the airplane.

The FAA reviewed Boeing Alert Requirements Bulletin 747-53A2901 RB, dated July 25, 2019. This service information describes procedures for repetitive LFEC inspections of a certain fuselage upper skin lap splice for cracks, repetitive HFEC inspections of a certain fuselage upper skin lap splice for cracks, and applicable on-condition actions. On-condition actions include repair. 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.

The FAA is proposing this AD because the agency evaluated all the relevant information 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 accomplishment of the actions identified in Boeing Alert Requirements Bulletin 747-53A2901 RB, dated July 25, 2019, described previously, except for any differences identified as exceptions in the regulatory text of this proposed AD.

For information on the procedures and compliance times, see this service information at https://www.regulations.gov by searching for and locating Docket No. FAA-2019-0875.

The FAA worked in conjunction with industry, under the Airworthiness Directive Implementation Aviation Rulemaking Committee (AD ARC), to enhance the AD system. One enhancement is a process for annotating which steps in the service information are “required for compliance” (RC) with an AD. Boeing has implemented this RC concept into Boeing service bulletins.

In an effort to further improve the quality of ADs and AD-related Boeing service information, a joint process improvement initiative was worked between the FAA and Boeing. The initiative resulted in the development of a new process in which the service information more clearly identifies the actions needed to address the unsafe condition in the “Accomplishment Instructions.” The new process results in a Boeing Requirements Bulletin, which contains only the actions needed to address the unsafe condition ( i.e., only the RC actions).

The FAA estimates that this proposed AD would affect 3 airplanes of U.S. registry. The agency estimates the following costs to comply with this proposed AD:

The FAA has received no definitive data that would enable the agency to provide cost estimates for the on-condition actions specified in 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 proposed 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 transport category airplanes and associated appliances to the Director of the System Oversight 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:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend the Class E airspace area designated as a surface area and the Class E airspace extending upward from 700 feet above the surface at Bowling Green-Warren County Regional Airport, Bowling Green, KY, and Lake Cumberland Regional Airport, Somerset, KY, to support instrument flight rule operations at these airports.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2019-0834; Airspace Docket No. 19-ASO-22.” The postcard will be date/time stamped and returned to the commenter.

All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the internet at https://www.regulations.gov . Recently published rulemaking documents can also be accessed through the FAA's web page at https://www.faa.gov/air_traffic/publications/airspace_amendments/ .

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the Federal Aviation Administration, Air Traffic Organization, Central Service Center, Operations Support Group, 10101 Hillwood Parkway, Fort Worth, TX 76177.

This document proposes to amend FAA Order 7400.11D, Airspace Designations and Reporting Points, dated August 8, 2019, and effective September 15, 2019. FAA Order 7400.11D is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11D lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by:

Amending the Class E airspace area designated as a surface area at Bowling Green-Warren County Regional Airport, Bowling Green, KY, by removing the Bowling Green VORTAC and associated extension from the airspace legal description; and adding an extension within 1 mile each side of the 030° bearing from the airport extending from the 4.2-mile radius to 4.5 miles north of the airport;

Amending the Class E airspace area designated as a surface area at Lake Cumberland Regional Airport, Somerset, KY, by removing the Bowling Green VORTAC from the airspace legal description; adding an extension within 1 mile each side of the 043° bearing from the airport extending from the 4-mile radius to 4.8 miles northeast of the airport; and updating the name and geographic coordinates of Lake Cumberland Regional Airport (previously Somerset—Pulaski County—J.T. Wilson Field Airport) to coincide with the FAA's aeronautical database;

Amending the Class E airspace extending upward from 700 feet above the surface to within a 6.7-mile radius (increased from a 6.6-mile radius) of Bowling Green-Warren County Regional Airport; and removing the Bowling Green VORTAC and associated extension from the airspace legal description;

And amending the Class E airspace extending upward from 700 feet above the surface to within a 6.5-mile radius (decreased from an 8.6-mile radius) of Lake Cumberland Regional Airport; removing the Cumberland River NDB and associated extension as they are no longer required; adding an extension 8 miles south and 3.8 miles north of the 228° bearing from the Lake Cumberland Regional: RWY 05-LOC extending from the 6.5-mile radius of the Lake Cumberland Regional Airport to 10 miles southwest of the Lake Cumberland Regional: RWY 05-LOC; and updating the name and geographic coordinates of the Lake Cumberland Regional Airport (previously Somerset—Pulaski County—J.T. Wilson Field Airport) to coincide with the FAA's aeronautical database.

This action is the result of an airspace review caused by the decommissioning of the Bowling Green VOR, which provided navigation information for the instrument procedures at these airports, as part of the VOR MON Program.

Class E airspace designations are published in paragraph 6002 and 6005, respectively, of FAA Order 7400.11D, dated August 8, 2019, and effective September 15, 2019, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order. FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

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

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend the Class E airspace extending upward from 700 feet above the surface at C E `Rusty' Williams Airport, Mansfield, LA, to support instrument flight rule operations at this airport.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2019-0833; Airspace Docket No. 19-ASW-13.” The postcard will be date/time stamped and returned to the commenter.

All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the internet at https://www.regulations.gov . Recently published rulemaking documents can also be accessed through the FAA's web page at https://www.faa.gov/air_traffic/publications/airspace_amendments/ .

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the Federal Aviation Administration, Air Traffic Organization, Central Service Center, Operations Support Group, 10101 Hillwood Parkway, Fort Worth, TX 76177.

This document proposes to amend FAA Order 7400.11D, Airspace Designations and Reporting Points, dated August 8, 2019, and effective September 15, 2019. FAA Order 7400.11D is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11D lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by amending the Class E airspace area extending upward from 700 feet above the surface to within a 6.4-mile radius (decreased from a 6.5-mile radius) at C E `Rusty' Williams Airport, Mansfield, LA; removing the city associated with the airport to comply with changes to FAA Order 7400.2M, Procedures for Handling Airspace Matters; removing the Mansfield RBN and associated extension from the airspace legal description; and updating the name and geographic coordinates of the C E `Rusty' Williams Airport (previously DeSoto Parish Airport) to coincide with the FAA's aeronautical database.

These actions are the result of an airspace review caused by the decommissioning of the Mansfield NDB, which provided navigation information for the instrument procedures at this airport.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11D, dated August 8, 2019, and effective September 15, 2019, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order. FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

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

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

A representative payee is a person or an organization that we select to receive and manage Social Security benefits, Special Veterans benefits, and Supplemental Security Income (SSI) payments on behalf of a beneficiary. Generally, beneficiaries have the right to receive their benefits directly and manage them independently. However, we may determine that a beneficiary is unable to manage or direct the management of benefit payments because of the beneficiary's mental or physical condition, or because of the beneficiary's age. 1 In these cases, we appoint a representative payee when we believe it will serve the beneficiary's interest to receive benefits through a representative payee instead of receiving them directly. 2

When we select a representative payee, we will choose the designee of the beneficiary's highest priority, provided that the designee is willing and able to serve, is not prohibited from serving, 3 and supports the best interest of the beneficiary. 4 It is important for us to select the best possible representative payee to ensure that the benefits are used for purposes in the best interest of the beneficiary and in accordance with other responsibilities and requirements discussed in our regulations. 5

President Trump signed the Strengthening Protections Act into law on April 13, 2018. 6 Section 201 of that Act, “Advance Designation of Representative Payees,” amends section 205(j)(1) of the Social Security Act  7 to allow for advance designation of representative payees. It also requires us to promulgate regulations specifying the information that an individual must provide to designate a representative payee in advance.

Before we developed these proposed regulations, we hosted a National Disability Forum (NDF) on Advance Designation of Representative Payees, at which we received feedback from panelists with experience in fields relevant to our representative payee program. 8 We considered this feedback in developing these proposed regulations.

Section 201 of the Strengthening Protections Act establishes that individuals who are entitled to or applying for a benefit under title II, title VIII, or title XVI, and who have attained 18 years of age or are emancipated minors, are permitted to designate in advance one or more other individuals as a possible representative payee. We propose that these applicants or beneficiaries may designate one or more possible representative payees, provided that we have not determined the applicant or beneficiary is mentally or physically incapable of managing benefit payments, or that the applicant or beneficiary has not been found legally incompetent. Based on feedback we received at the NDF, these advance designations would not expire. Consistent with the Strengthening Protections Act, we would only permit advance designations of individuals, not organizations. 9

We propose that these individuals may designate possible representative payees in advance by providing us with the required information. This required information would include the name and telephone number of each advance designee and the priority order in which the individual would like us to consider the advance designees, if more than one are designated. Our current systems will allow for an applicant or beneficiary to designate up to three possible representative payees, however the relevant systems prevent us from receiving more than three designees at this time. Based on the feedback we received at the NDF, we also propose that an individual will have the option to identify the relationship of the advance designee to the individual. Further, we propose to collect and store the information provided and the date of the designation for recordkeeping purposes. We will store the information in a new system developed for this purpose. We would not collect the advance designee's Social Security number, which reflects preferences expressed during the panelist discussion at the NDF.

We also propose to consider advance designees first when selecting a representative payee. When we determine that a representative payee is necessary, 10 we would first review the advance designees previously identified by the individual (if any), in the order of priority established by the individual. However, the Strengthening Protections Act allows us to certify payments to another individual or organization if the advance designee is unwilling or unable to serve, if the payment of the benefits to the advance designee would not satisfy the requirements in section 205(j)(2) of the Social Security Act, or if other good cause exists to not appoint an advance designee. 11 We would follow the established guidance set forth in our existing regulations to determine whether other good cause exists to appoint another representative payee who is not one of the advanced designees. 12 If none of the individuals designated in advance by the individual are willing, able, or suitable to be a representative payee, we would then consider other potential representative payees by referring to our current established order of preference for representative payee selection. 13

Our proposed selection process aligns with the input we received at the NDF, which underlined the need for a robust evaluation of an advance designee during the selection process. Ensuring that we select a representative payee who would best serve the beneficiary's interest continues to be our primary concern.

In addition to considering advance designees during the initial representative payee selection, we also propose considering advance designees when we select a subsequent representative payee. Accordingly, if an individual who currently has a representative payee requires a new representative payee, we would consider any other designees identified by the individual at a time in which that individual was eligible to make an advanced designation. If we are unable to select from remaining advance designees, we would continue to use the regulations in subpart U of part 404 and subpart F of part 416 to guide representative payee selection.

Finally, we propose that individuals who are eligible to make advance designations may withdraw or revise their advance designations at any time, provided that at the time of modification they are still eligible to make advanced designations, by informing us of the change in writing, in person, by telephone, or by direct electronic submission through our website. If the individual wishes to revise advance designations, the individual must provide the required information for any newly designated individuals.

For our title II regulations, we propose to add a new section, § 404.2018 Advance designation of representative payees, to cover: (1) General information about advance designation; (2) how to designate possible representative payees in advance; (3) how to change an advance designation; (4) how we consider an advance designation when we select a representative payee; (5) how we consider an advance designation when we select a subsequent representative payee; and (6) that organizations may not be designated in advance as a possible representative payee. We also propose to add paragraph (g) in § 404.2020 to indicate that we would consider advance designation when we select representative payees. Finally, we propose to make a change to § 404.2021 to state that we will consider an advance designee before our current order of preference for representative payees.

For our title XVI regulations, we propose parallel changes. We would add a new section, § 416.618 Advance designation of representative payees, to cover the same six categories that we propose for title II. We would also add paragraph (g) in section § 416.620 to indicate that we would consider advance designation when we select representative payees. Similarly, we propose to make a change to § 416.621 to state that we will consider an advance designee before our current order of preference for representative payees. Finally, we propose to correct a grammatical error in the authority citation for subpart F of part 416.

For title VIII, we propose adding a new section, § 408.618 Advance designation of representative payees, to refer to § 404.2018, § 404.2020, and § 404.2021 for relevant information related to advance designation.

We will consider all comments we receive on or before the close of business on the comment closing date indicated above. The comments will be available for examination in the rulemaking docket for these rules at the above address. We will file comments received after the comment closing date in the docket and will consider those comments to the extent practicable. However, we will not respond specifically to untimely comments. We may publish a final rule at any time after close of the comment period.

Executive Order 12866, as supplemented by Executive Order 13563, requires each agency to write all rules in plain language. In addition to your substantive comments on these proposed rules, we invite your comments on how to make them easier to understand.

For example:

• Would more, but shorter, sections be better?

• Are the requirements in the rules clearly stated?

• Have we organized the material to suit your needs?

• Could we improve clarity by adding tables, lists, or diagrams?

• What else could we do to make the rules easier to understand?

• Do the rules contain technical language or jargon that is not clear?

• Would a different format make the rules easier to understand, e.g., grouping and order of sections, use of headings, paragraphing?

We consulted with the Office of Management and Budget (OMB) and determined that these proposed rules do not meet the criteria for a significant regulatory action under Executive Order 12866, as supplemented by Executive Order 13563.

We also determined that this final rule meets the plain language requirement of Executive Order 12866.

We analyzed this proposed rule in accordance with the principles and criteria established by Executive Order 13132, and determined that the proposed rule will not have sufficient Federalism implications to warrant the preparation of a Federalism assessment. We also determined that this proposed rule would not preempt any State law or State regulation or affect the States' abilities to discharge traditional State governmental functions.

We certify that this proposed rule will not have a significant economic impact on a substantial number of small entities because it affects only individuals. Therefore, the Regulatory Flexibility Act, as amended, does not require us to prepare a regulatory flexibility analysis.

This proposed rule is not subject to the requirements of Executive Order 13771 because it is administrative in nature, and because it does not impose costs that reach the E.O. 12866 threshold for significance.

SSA's Office of the Chief Actuary estimates that implementation of this rule will result in a very small increase in program cost for the Social Security and Supplemental Security Income programs over the 10-year period 2020 through 2029. This small increase would be considered de minimis under E.O. 13771.

Our Office of Budget, Finance, and Management estimates that this change will result in administrative costs to the agency of approximately $275 million over 10 years, with none of the annual costs meeting or exceeding the E.O. 12866 threshold of $100 million. The administrative estimates comprise the costs for creating and running the online application; field office interviews; employee processing time; and sending annual mailers.

Section 404.2018 of these proposed rules imposes a new public reporting burden: The requirement for affected members of the public to use SSA's prescribed paper form or online application to submit the names of advance designees. SSA previously solicited comment on these proposed information collection instruments via a notice published in the Federal Register . 14 In response to that notice, several members of the public submitted comments. We provide a document detailing these comments, as well as our responses, as a supplemental document to this proposed rulemaking.

We have not changed the proposed Information Collection Request (ICR) since the publication of the above-referenced standalone Federal Register notice. However, we are again soliciting comment on the proposed ICR for section 404.2018 as part of this notice of proposed rule. Below is a chart showing current burden estimates for the proposed information collection instruments that will implement section 404.2018.

We note that this burden calculation assumes 100 percent of beneficiaries and applicants who are eligible to advance designate will choose to do so.

We are requesting public comments on this Information Collection Request. We are soliciting comments on the burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility, and clarity; and ways to minimize the burden on respondents, including the use of automated techniques or other forms of information technology. If you would like to submit comments, please send them to the following locations:

In the Federal Register of September 25, 2019, FDA published a proposed rule that would, if finalized, establish requirements related to the content and format of premarket tobacco product applications, application review procedures, and recordkeeping. Interested persons were originally given until November 25, 2019, to comment on the proposed rule.

Following publication of the proposed rule in the Federal Register of September 25, 2019, FDA received a request to allow interested persons additional time to comment. The requester asserted that the time period of 60 days was insufficient to allow potential respondents to thoroughly evaluate and address pertinent issues. FDA has considered the request and is reopening the comment period for the proposed rule for 20 days. The Agency believes that a 20-day reopening of the comment period allows adequate time for interested persons to submit comments without significantly delaying rulemaking on these important issues.

The Milwaukee River is approximately 104 miles long, beginning in Fond du Lac County the river flows easterly to a low head dam just above the Humboldt Avenue Bridge at mile 3.22 in downtown Milwaukee, WI. From here the river flows south to Lake Michigan. This southerly course of the Milwaukee River divides the lakefront area from the rest of the city. The Menomonee River joins the Milwaukee River at Mile 1.01 with the Kinnickinnic River joining the Milwaukee River at Mile 0.39. In total 21 bridges cross the Milwaukee River from mile 0.19 to mile 3.22. In the early 20th Century the Milwaukee River was heavily used to support the industries in and around the Great Lakes. Today, the river has been redeveloped as a tourist and recreational destination. From its confluence with the Milwaukee River the Menomonee River flows west for 33 miles. The lower three miles of the Menomonee River is passable by vessels over 600 feet in length. Seven bridges cross the navigable portion of the Menomonee River.

Over the years the flour mills, packing plants, breweries, machine shops, railways, and tanneries have been replaced with parks, a casino, microbreweries, and the Harley-Davidson Museum. The coal powered heat plant near mile 1.61 was converted to natural gas, which eliminated the need for coal to be delivered by barge. At present the only docks receiving vessels are the two cement silos located near mile 1.61.

The South Menomonee Canal and the Burnham Canal were both excavated during a waterways improvement project in 1864. Both man-made canals are tributaries of the Menomonee River branching just above its mouth. The South Menomonee Canal is crossed by two bridges and the Burnham Canal is crossed by three bridges.

The Kinnickinnic River flows north through the southern portion of the City of Milwaukee connecting with the Milwaukee River near Lake Michigan. Only the lower 2.30 miles of the river have been improved for vessel use. Five bridges cross the river with the Lincoln Avenue Bridge at the head of navigation. Freighters up to 1,000 feet in length transfer cargos at the confluence of the Kinnickinnic and Milwaukee Rivers.

The Port of Milwaukee won the 2016 Saint Lawrence Seaway Development Pacesetter Award for significantly increasing international tonnage shipped through their port. Salt, cement, aggregate, liquid bulk products, coal, grain, and general cargo goods are shipped through this portion of the port. 2.4 million tons of materials were shipped and received in 2018. The Port of Milwaukee is currently ranked 23rd in tonnage among the Great Lakes harbors and is a designated harbor of refuge for the eastern side of Lake Michigan and can accommodate emergency docking of vessels up to 1,000 feet long. Most of the recreational vessels in Milwaukee moor in the lake front marinas and only transit the rivers. Boat yards on the Menomonee and Kinnickinnic rivers haul out and store most of the recreational vessels in the fall and winter months and launch the vessels in the spring. This action contributes to a considerable surge in drawbridge openings in the fall and spring.

In response to downtown Milwaukee residents' concerns regarding in a pronounced increase in vehicular traffic in the area, the City of Milwaukee has requested a complete review of the bridge regulations in this area.

Over the years these regulations have been amended considerably. This has had the effect of making them difficult to comprehend to the average person. In addition the cyclic higher water levels over the past 3 years and increased number of passenger vessels in the downtown area have resulted in significantly more bridge openings. Lastly, the conversion of older business building into condominiums have increased the evening vehicle traffic causing major traffic delays when the bridges are lifted. While the Milwaukee River is the primary concern with residents and mariners, this rulemaking proposes changes to the language governing bridges in the entire Milwaukee Harbor area, for the purpose of updating these regulations accurately reflect the current operational needs of these bridges and make them easier to understand by the general public.

Currently, the Canadian Pacific Railroad Bridge at Mile 1.74 over the Burnham Canal and the Sixth Street Bridge at Mile 1.37 over the Menomonee River are closed by regulation and do not need to open for the passage of vessels. The City of Milwaukee has requested that the Sixteenth Street Bridge, mile 2.14, over the Menomonee River remain closed and not open by regulation. No vessels have requested a bridge opening in at least 10 years and the bridge provides a horizontal clearance of 120 feet and a vertical clearance of 35 feet above LWD, allowing most vessels to pass under the bridge without an opening. The Coast Guard is working with the City of Milwaukee to convert the Sixteenth Street Bridge to a fixed structure.

Ice has historically hindered or prevented navigation during the winter months. For the last eight years the Coast Guard has authorized the drawbridges to open on signal with a 12-hour advance notice of arrival for vessels from November 19th to April 16th. After careful review of the drawtender logs provided by the City of Milwaukee, the Coast Guard proposes to allow all bridges to require a 12-hour advance notice for openings from November 1st to April 15th each year.

The City of Milwaukee requested that from 11 p.m. to 7 a.m. daily, the bridges would open on signal with a 2-hour advance notice. During these hours the bridges would not be manned and roving drawtenders would open the bridges for vessels. After reviewing the 2016, 2017, and 2018 drawtender logs it was found that for those hours between April and November of each year an average of 45 vessels requested openings. Of these requests an average of 32 openings were between the hours of 11 p.m. and midnight. From midnight to 7 a.m. there were only 13 vessels that requested openings. Based on the data reviewed we have concluded that, due to a lack of openings from midnight to 7 a.m. daily, the bridges shall open on signal if provided a 2-hour advance notice of arrival, meets the reasonable needs of navigation.

The City of Milwaukee also reported receiving several complaints from residents in the downtown area concerning the noise associated with the waterfront. To improve the quality of downtown living we propose to remove the special sound signals listed in the CFR for each bridge. Mariners would request openings by using the standard sound signal of one prolonged blast followed by one short blast or by agreement on VHF-FM Marine Radio or by telephone. From Midnight to 7 a.m. the bridges would require a 2-hour advance notice of arrival provided by VHF-FM Marine Radio or by telephone thus reducing some of the noise associated with the waterfront.

The City of Milwaukee requests to operate the following bridges remotely: North Plankinton Avenue, mile 1.08, and North Sixth Street, mile 1.37, and North Ember Lane, mile 1.95, all over the Menomonee River. Each remotely operated bridge will have sufficient equipment to operate as if a drawtender is in attendance at the bridge. No drawtender will be responsible for monitoring or operating more than 3 drawbridges at any time. At a minimum each remotely operated drawbridge will have the capabilities to communicate by 2-way public address system, equipment capable of making appropriate sound signals as required, and have adequate camera systems in place to safely operate the bridge.

The current regulation allows for no openings from 7:30 a.m. to 8:30 a.m. and from 4:30 p.m. to 5:30 p.m. for vehicular rush hours. The city has requested to start the evening rush hour at 4 p.m. instead of 4:30 p.m. to help relieve vehicle congestion. The city of Milwaukee provided the following vehicle data provided by the Wisconsin Department of Transportation to support the additional 30 minutes of evening rush hour times. We have averaged the data into this spreadsheet:

Based on the data provided we intend to extend the rush hour times of no lifts to 4 p.m. to 5:30 p.m. Monday through Friday, except Federal Holidays.

Additionally, at the time when the original regulation was being written the stipulating regulation regarding the opening of bridges for public safety vessels had not yet been promulgated. An exception was included for vessels carrying U.S. mail and vessels that carry over 50 passengers for hire. The mail service no longer arrives by vessel. Limiting the exclusion by passenger count excludes other commercial vessels from transiting the river. This exclusion is only for the times the bridges do not need to open during high traffic times. During the test deviation, which is planned for the summer of 2020, the intent is to modify this exception to read: “commercial vessels documented over 50 tons.” This prevents tug and barge, cement boats, and other large commercial vessels from getting trapped between bridges, which creates an especially unsafe condition.

We developed this proposed rule after considering numerous statutes and Executive Orders related to rulemaking. Below we summarize our analyses based on these statutes and Executive Orders and we discuss First Amendment rights of protestors.

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 Proposed rule is soliciting comments for the test deviation planned for the summer navigation season of 2020. Additional comments are encouraged throughout the test deviation, when that publishes.

The Regulatory Flexibility Act of 1980 (RFA), 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 owners or operators of vessels intending to transit the bridge 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. The bridges will open on signal with advance notice. The hours the bridges would be closed to accommodate high number of vehicle crossings is only 1 hour in the morning and 1.5 hours in the evening and supports other small business by eliminating traffic congestion and accessibility to those downtown business.

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 , above. 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 call for no 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 above.

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 will not result in such an expenditure, we do discuss the effects of this proposed rule elsewhere in this preamble.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01, U.S. Coast Guard Environmental Planning Policy COMDTINST 5090.1 (series) and U.S. Coast Guard Environmental Planning Implementation Procedures (series) which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f). We 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 promulgates the operating regulations or procedures for drawbridges. Normally this action is categorically excluded from further review, under paragraph L49, of Chapter 3, Table 3-1 of the U.S. Coast Guard Environmental Planning Implementation Procedures.

Neither a Record of Environmental Consideration nor a Memorandum for the Record are required for this rule.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

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 http://www.regulations.gov . If your material cannot be submitted using http://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 http://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, visit http://www.regulations.gov/privacynotice .

Documents mentioned in this NPRM as being available in this docket and all public comments, will be in our online docket at http://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 proposes to amend 33 CFR part 117 as follows:

On September 25, 2019, the Office of the Mayor-President of Baton Rouge, Louisiana, notified the Coast Guard that it will be conducting a fireworks display from 11:55 p.m. on December 31, 2019, through 12:30 a.m. on January 01, 2020, to commemorate the New Year. The fireworks are to be launched from the East Bank of the Mississippi River in Baton Rouge, Louisiana, near mile marker 230. Hazards from firework displays include accidental discharge of fireworks, dangerous projectiles, and falling hot embers or other debris. The Captain of the Port New Orleans (COTP) has determined that potential hazards associated with the fireworks to be used in this display would be a safety concern for anyone within a half mile of the display.

The purpose of this rulemaking is to ensure the safety of vessels and the navigable waters within a half mile of the fireworks before, during, and after the scheduled event. The Coast Guard is proposing this rulemaking under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231).

The COTP is proposing to establish a safety zone from 11:30 p.m. on December 31, 2019, through 12:30 a.m. on January 1, 2020. The safety zone covers all navigable waters of the Lower Mississippi River in Baton Rouge, LA, from mile marker (MM) 229.5 to MM 230.5 above Head of Passes. The duration of the zone is intended to ensure the safety of persons, vessels, and the marine environment before, during, and after the scheduled fireworks display. Entry into this zone is prohibited unless authorized by the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard assigned to units under the operational control of USCG Sector New Orleans. Vessels requiring entry into this safety zone must request permission from the COTP or a designated representative. They may be contacted on VHF-FM Channel 16 or 67, or through the Marine Safety Unit Baton Rouge Officer of the Day at 225-281-4789. All persons and vessels permitted to enter this safety zone must transit at the slowest safe speed and comply with all lawful directions issued by the COTP or the designated representative. The COTP or a designated representative will inform the public of the enforcement times and date for this safety zone through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and/or Marine Safety Information Bulletins (MSIBs), as appropriate.

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 and we discuss First Amendment rights of protestors.

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 the size, location, duration, and time-of-day of the safety zone. This temporary safety zone would only restrict navigation on a one-mile portion of the Lower Mississippi River for approximately one hour on one evening. Moreover, the Coast Guard will issue BNMs via VHF-FM marine channel 16 about the zone, and the rule allows vessels to seek permission to enter 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 owners or operators of vessels intending to transit the safety zone 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 call or email 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 call or email 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 Environmental Planning COMDTINST 5090.1 (series), 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 safety zone lasting one hour that would prohibit entry within a half mile of a fireworks display. Normally such actions are categorically excluded from further review under paragraph L60(a) in Table 3-1 of U.S. Coast Guard Environmental Planning Implementing Procedures. A preliminary Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES . We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places, or vessels.

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, call or email 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 submissions in response to this document, see DHS's Correspondence System of Records notice (84 FR 48645, September 26, 2018).

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 33 CFR part 165 as follows:

On October 1, 2015 (published October 26, 2015, see 80 FR 65292), EPA promulgated a revised primary and secondary NAAQS for ozone, revising the 8-hour ozone standards from 0.075 parts per million (ppm) to a new more protective level of 0.070 ppm. Pursuant to section 110(a)(1) of the CAA, states are required to submit SIP revisions meeting the applicable requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS or within such shorter period as EPA may prescribe. Section 110(a)(2) requires states to address basic SIP elements such as requirements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the NAAQS. This particular type of SIP is commonly referred to as an “infrastructure SIP.” States were required to submit such SIPs for the 2015 8-hour ozone NAAQS to EPA no later than October 1, 2018. 1

This action is proposing to approve Alabama's August 20, 2018, 2 revision provided to EPA through the Alabama Department of Environmental Management (ADEM)) and South Carolina's September 7, 2018, revision provided to EPA through the Department of Health and Environmental Control (SC DEHC), for the applicable infrastructure SIP requirements of the 2015 8-hour ozone NAAQS, with the exception of the interstate transport provisions of section 110(a)(2)(D)(i)(I), pertaining to contribution to nonattainment or interference with maintenance in other states. With respect to the interstate transport provisions of section 110(a)(2)(D)(i)(I), EPA will address these provisions in separate rulemaking actions.

Section 110(a) of the CAA requires states to submit SIPs to provide for the implementation, maintenance, and enforcement of a new or revised NAAQS within three years following the promulgation of such NAAQS, or within such shorter period as EPA may prescribe. Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. In particular, the data and analytical tools available at the time the state develops and submits the SIP for a new or revised NAAQS affects the content of the submission. The contents of such SIP submissions may also vary depending upon what provisions the state's existing SIP already contains.

More specifically, section 110(a)(1) provides the procedural and timing requirements for SIPs. Section 110(a)(2) lists specific elements that states must meet for infrastructure SIP requirements related to a newly established or revised NAAQS. As mentioned above, these requirements include basic SIP elements such as requirements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the NAAQS. The requirements of section 110(a)(2) are summarized in section IV below, and in EPA's September 13, 2013, memorandum entitled “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2).”  3

EPA is acting upon portions of the SIP submissions from Alabama and South Carolina that address certain infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2015 8-hour ozone NAAQS. Whenever EPA promulgates a new or revised NAAQS, CAA section 110(a)(1) requires states to make SIP submissions to provide for the implementation, maintenance, and enforcement of the NAAQS, commonly referred to as “infrastructure SIPs.” These infrastructure SIP submissions must meet the various requirements of CAA section 110(a)(2), as applicable. Due to ambiguity in some of the language of CAA section 110(a)(2), EPA believes that it is appropriate to interpret these provisions in the specific context of acting on infrastructure SIP submissions. EPA has previously provided comprehensive guidance on the application of these provisions through a guidance document for infrastructure SIP submissions and through regional actions on infrastructure submissions. 6 Unless otherwise noted below, we are following that existing approach in acting on these submissions. In addition, in the context of acting on such infrastructure submissions, EPA evaluates the submitting state's SIP for facial compliance with statutory and regulatory requirements, not for the state's implementation of its SIP. 7 The EPA has other authority to address any issues concerning a state's implementation of the rules, regulations, consent orders, etc. that comprise its SIP.

Alabama's and South Carolina's infrastructure SIP submissions address certain provisions of sections 110(a)(1) and (2) as described below.

1. 110(a)(2)(A): Emission Limits and Other Control Measures: Section 110(a)(2)(A) requires that each implementation plan include enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements. Several regulations within Alabama's and South Carolina's SIPs and state statutes are relevant to air quality control regulations. Below provides more detail for each state addressed in this proposed rulemaking.

Alabama cites to the following regulations to satisfy this requirement. ADEM Admin. Code r. 335-3-1-.03— Ambient Air Quality Standards, 8 authorizes ADEM to provide for attainment of the NAAQS. ADEM Admin. Code r. 335-3-1-.06— Compliance Schedule, sets the schedule for compliance with the State's Air Pollution Control rules and regulations. ADEM Admin. Code r. 335-3-1-.05— Sampling and Testing Methods, details the authority and means with which ADEM can require testing and emissions verification. ADEM Admin. Code r. 335-3-14-.03(l)(g)— Standard for Granting Permits, which authorizes ADEM to grant permits. Also, the following ADEM Administrative Code rules address this element: 335-3-14-.03(2)— Stack Heights, subparagraphs (d) and (e), 335-3-15-.02(9) —Stack Heights, subparagraphs (d) and (e), and 335-3-16-.02(10) —General Provisions, subparagraphs (d) and (e).

South Carolina cites to the following provisions to satisfy this requirement. South Carolina's Regulation  9 61-62.5, Standard No. 2, Ambient Air Quality Standards and Regulation 61-62.1, Definitions and General Requirements, provide enforceable emission limits and other control measures, means, and techniques. Section 48-1-50(23) of the 1976 South Carolina Code of Laws, as amended, (S.C. Code Ann.) provides SC DHEC with the authority to “Adopt emission and effluent control regulations standards and limitations that are applicable to the entire state, that are applicable only within specified areas or zones of the state, or that are applicable only when a specified class of pollutant is present.” Collectively these provisions establish enforceable emissions limitations and other control measures, means or techniques, for activities that contribute to ozone concentrations in the ambient air and provide authority for SC DHEC to establish such limits and measures as well as schedules for compliance to meet the applicable requirements of the CAA.

EPA has made the preliminary determination that the provisions contained in Alabama's and South Carolina's SIP-approved State regulations and State statutes are adequate for enforceable emission limitations and other control measures, means, or techniques, as well as schedules and timetables for compliance to satisfy the requirements of Section 110(a)(2(A) for the 2015 8-hour ozone NAAQS in each of the states.

2. 110(a)(2)(B) Ambient Air Quality Monitoring/Data System: Section 110(a)(2)(B) requires SIPs to provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to: (i) monitor, compile, and analyze data on ambient air quality, and (ii) upon request, make such data available to the Administrator. Below provides more detail for each state addressed in this proposed rulemaking.

ADEM Admin. Code r. 335-3-1-.04— Monitoring, Records, and Reporting, authorizes the Director of ADEM to require sources to install, use and maintain monitoring equipment and submit emissions monitoring reports as prescribed by the Director. Pursuant to this regulation, these sources collect air monitoring data, quality assure the results, and report the data as prescribed by the Director. ADEM Admin. Code r. 335-3-1-.05— Sampling and Testing Methods, details the authority and means through which ADEM can require testing and emissions verification.

South Carolina's Regulation 61-62.5, Standard No. 7, Prevention of Significant Deterioration, addresses ambient monitoring requirements for major new source review. The South Carolina Network Description and Ambient Air Network Monitoring Plan provides for an ambient air quality monitoring system in the State. S.C. Code Ann. § 48-1-50(14) provides the Department with the necessary authority to “collect and disseminate information on air and water control.”

Annually, states develop and submit to EPA for approval statewide ambient monitoring network plans consistent with the requirements of 40 CFR parts 50, 53, and 58. The annual network plan involves an evaluation of any proposed changes to the monitoring network and includes the annual ambient monitoring network design plan and a certified evaluation of the agency's ambient monitors and auxiliary support equipment. 10

On July 8, 2019 and July 1, 2019, Alabama and South Carolina, submitted their monitoring network plans to EPA, respectively. On October 30, 2019 and October 25, 2019, EPA approved these monitoring network plans. Alabama's and South Carolina's, approved monitoring network plan can be accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-2019-0014. EPA has made the preliminary determination that Alabama's and South Carolina's SIPs and practices are adequate for the ambient air quality monitoring and data system related to the 2015 8-hour ozone NAAQS.

3. 110(a)(2)(C) Programs for Enforcement of Control Measures and for Construction or Modification of Stationary Sources: This element consists of three sub-elements: Enforcement, state-wide regulation of new and modified minor sources and minor modifications of major sources, and preconstruction permitting of major sources and major modifications in areas designated attainment or unclassifiable for a NAAQS as required by CAA title I part C ( i.e., the major source PSD program).

For the PSD sub-element, EPA interprets the CAA to require that a state's infrastructure SIP submission for a particular NAAQS demonstrate that the state has a complete PSD permitting program in place covering the PSD requirements for all regulated NSR pollutants. 11 A state's PSD permitting program is complete for this sub-element (and prong 3 of D(i) and J related to PSD) if EPA has already approved or is simultaneously approving the state's implementation plan with respect to all PSD requirements that are due under EPA regulations or the CAA on or before the date of EPA's proposed action on the infrastructure SIP submission.

Alabama's and South Carolina's 2015 8-hour ozone NAAQS infrastructure SIP submissions cited a number of SIP provisions to address these requirements. See below for more details on these SIP provisions.

Alabama's infrastructure SIP submission cited the following provisions of the ADEM Admin. Code to satisfy 110(a)(2)(C):

Enforcement: Alabama's infrastructure SIP submission cited SIP-approved regulations Admin. Code r. 335-3-14-.01, General Provisions, and Admin. Code r. 335-3-14-.03, Standards for Granting Permits, which provide for enforcement of ozone precursor emission limits and control measures through permitting for new or modified stationary sources. ADEM has authority to issue enforcement orders and assess penalties through Code sections 22-22A-5, 22-28-10 and 22-28-22.

PSD Permitting for Major Sources: Alabama's infrastructure SIP submission cited ADEM Admin. Code r. 335-3-14-.04, Prevention of Significant Deterioration in Permitting, 335-3-14-.02, Permit Procedure and 335-3-14-.03— Standards for Granting Permits . These SIP-approved regulations provide that new major sources and major modifications in areas of the State designated attainment or unclassifiable for any given NAAQS are subject to a federally-approved PSD permitting program meeting all the current structural requirements of part C of title I of the CAA.

Regulation of minor sources and modifications: Alabama's infrastructure SIP submission cited ADEM Admin. Code r. 335-3-14-.01 General Provisions, 335-3-14-.02 Permit Procedure, and 335-3-14-.03— Standards for Granting Permits . These SIP approved regulations govern the preconstruction permitting of minor modifications and construction of minor stationary sources.

South Carolina's infrastructure SIP submission cited the following provisions to satisfy 110(a)(2)(C):

Enforcement: SC DHEC's SIP-approved permitting regulations, described below in this section, provide for enforcement of ozone emission limits and control measures through construction permitting for new or modified stationary sources. South Carolina's infrastructure SIP submission cites to statute 48-1-50(11), which provides SC DHEC the authority to administer penalties for violations of any order, permit, regulation or standards; and 48-1-50(10), which authorizes SC DHEC to require and approve construction plans for sources and inspect the construction thereof for compliance with the approved plan. Additionally, SC DHEC is authorized under 48-1-50(3) and (4) to issue orders requiring the discontinuance of the discharge of air contaminants into the ambient air that create an undesirable level and seek an injunction to compel compliance with the Pollution Control Act and permits, permit conditions and orders.

PSD Permitting for Major Sources: South Carolina's authority to regulate new and modified sources to assist in the protection of air quality in South Carolina is established in Regulations 61-62.1, Section II, Permit Requirements; 61-62.5, Standard No. 7, Prevention of Significant Deterioration of South Carolina's SIP. These regulations pertain to the construction of any new major stationary source or any modification at an existing major stationary source in an area designated as attainment or unclassifiable. These regulations provide that new major sources and major modifications in such areas are subject to a federally-approved PSD permitting program meeting all the current structural requirements of part C of title I of the CAA, which satisfies the infrastructure SIP PSD elements.

Regulation of minor sources and modifications: Regulation 61-62.1, Section II, Permit Requirements governs the preconstruction permitting of minor modifications and construction of minor stationary sources in South Carolina.

EPA has made the preliminary determination that Alabama's and South Carolina's SIPs are adequate for enforcement of control measures, the PSD element, and regulation of construction of minor stationary sources and minor modifications for the 2015 8-hour ozone NAAQS.

4. 110(a)(2)(D)(i)(I) and (II) Interstate Pollution Transport: Section 110(a)(2)(D)(i) has two components: 110(a)(2)(D)(i)(I) and 110(a)(2)(D)(i)(II). Each of these components has two subparts resulting in four distinct components, commonly referred to as “prongs,” that must be addressed in infrastructure SIP submissions. The first two prongs, which are codified in section 110(a)(2)(D)(i)(I), are provisions that prohibit any source or other type of emissions activity in one state from contributing significantly to nonattainment of the NAAQS in another state (“prong 1”) and interfering with maintenance of the NAAQS in another state (“prong 2”). The third and fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are provisions that prohibit emissions activity in one state from interfering with measures required to prevent significant deterioration of air quality in another state (“prong 3”), or to protect visibility in another state (“prong 4”).

110(a)(2)(D)(i)(I)—prongs 1 and 2: EPA is not proposing any action in this rulemaking related to the interstate transport provisions pertaining to the contribution to nonattainment or interference with maintenance in other states of section 110(a)(2)(D)(i)(I) (prongs 1 and 2). EPA will address prongs 1 and 2 in separate rulemakings.

110(a)(2)(D)(i)(II)—prong 3: With regard to section 110(a)(2)(D)(i)(II), the PSD element, referred to as prong 3, this requirement may be met by a state's confirmation in an infrastructure SIP submission that new major sources and major modifications in the state are subject to: a PSD program meeting current structural requirements of part C of title I of the CAA, or (if the state contains a nonattainment area that has the potential to impact PSD in another state) a NNSR program.

As explained regarding 110(a)(2)(C), Alabama's SIP contains a PSD program meeting current federal requirements for such programs at 335-3-14-.04— Prevention of Significant Deterioration in Permitting, which satisfies prong 3 with respect to areas in the State designated as attainment and unclassifiable. Alabama's SIP also contains a NNSR program at 335-3-14-.05— Air Permits Authorizing Construction in or Near Nonattainment Areas, which satisfies prong 3 to the extent there are nonattainment areas within the State.

As explained regarding 110(a)(2)(C), South Carolina's SIP contains a PSD program meeting current federal requirements for such programs at Regulation 61-62.5, Standard No. 7, Prevention of Significant Deterioration which satisfies prong 3 with respect to areas in the State designated as attainment and unclassifiable. South Carolina's SIP also contains a NNSR program at 61-62.5, Standard No. 7.1, Nonattainment New Source Review, which satisfies prong 3 to the extent there are nonattainment areas within the State.

EPA has made the preliminary determination that Alabama's and South Carolina's SIPs are adequate for interstate transport for PSD permitting of major sources and major modifications related to the 2015 8-hour ozone NAAQS for section 110(a)(2)(D)(i)(II) (prong 3).

110(a)(2)(D)(i)(II)—prong 4: Section 110(a)(2)(D)(i)(II) requires that the SIP contain adequate provisions to protect visibility in other states. This requirement is satisfied for any relevant NAAQS when the state has a fully approved regional haze SIP.

Alabama's SIP contains a fully-approved regional haze plan, which was submitted to EPA on July 15, 2008, amended on October 16, 2015, and fully approved by EPA on October 12, 2017 (82 FR 47385). EPA's approval of the Alabama regional haze SIP therefore ensures that emissions from Alabama are not interfering with measures to protect visibility in other states, satisfying the requirements of prong 4 of section 110(a)(2)(D)(i)(II) for the 2015 8-hour ozone NAAQS.

South Carolina's SIP contains a fully-approved regional haze plan. At the time of the SIP submittal, EPA had proposed full approval of the plan on June 4, 2018 (83 FR 25604). EPA fully approved South Carolina's regional haze plan into the South Carolina SIP on September 24, 2018 (83 FR 48237). EPA's approval of South Carolina's regional haze SIP therefore ensures that emissions from South Carolina are not interfering with measures to protect visibility in other states, satisfying the requirements of prong 4 of section 110(a)(2)(D)(i)(II) for the 2015 8-hour ozone NAAQS.

EPA has made the preliminary determination that Alabama's and South Carolina's SIPs meet the requirements of prong 4 of section 110(a)(2)(D)(i)(II) for the 2015 8-hour ozone NAAQS.

5. 110(a)(2)(D)(ii) Interstate and International Transport Provisions: Section 110(a)(2)(D)(ii) requires SIPs to include provisions ensuring compliance with section 115 and 126 of the Act, relating to interstate and international pollution abatement.

ADEM Admin. Code r. 335-3-14-.04— Prevention of Significant Deterioration in Permitting describes how Alabama notifies neighboring states of potential emission impacts from new or modified sources applying for PSD permits. This regulation requires ADEM to provide an opportunity for a public hearing to the public, which includes state or local air pollution control agencies, “whose lands may be affected by emissions from the source or modification.” Additionally, Alabama does not have any pending obligation under sections 115 and 126 of the CAA.

South Carolina's Regulation 61-62.5, Standards 7 and 7.1(q)(2)(iv), Public Participation, requires SC DHEC to notify air agencies “whose lands may be affected by emissions” from each new or modified major source if such emissions may significantly contribute to levels of pollution in excess of a NAAQS in any air quality control region outside of South Carolina. Additionally, South Carolina does not have any pending obligation under section 115 and 126 of the CAA.

EPA has made the preliminary determination that Alabama's and South Carolina's SIPs and practices are adequate for ensuring compliance with the applicable requirements relating to interstate and international pollution abatement for the 2015 8-hour ozone NAAQS.

6. 110(a)(2)(E) Adequate Resources and Authority, Conflict of Interest, and Oversight of Local Governments and Regional Agencies: Section 110(a)(2)(E) requires that each implementation plan provide: (i) Necessary assurances that the state will have adequate personnel, funding, and authority under state law to carry out its implementation plan, (ii) that the state comply with the requirements respecting state boards pursuant to section 128 of the Act, and (iii) necessary assurances that, where the state has relied on a local or regional government, agency, or instrumentality for the implementation of any plan provision, the state has responsibility for ensuring adequate implementation of such plan provisions. EPA's rationale respecting each sub-element for which EPA is proposing action in this rulemaking is described below.

In support of sub-elements 110(a)(2)(E)(i) and (iii), the ADEM SIP submission cites to Ala. Code section 22-28-11, which authorizes ADEM to adopt emission requirements through regulations, and section 22-28-9, which authorizes ADEM to employ necessary staff to carry out its responsibilities. As evidence of the adequacy of ADEM's resources with respect to sub-elements (i) and (iii), EPA submitted a letter to Alabama on March 25, 2019, outlining 105 grant commitments and current status of these commitments for fiscal year 2018. The letter EPA submitted to Alabama can be accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-2019-0014. Annually, states update these grant commitments based on current SIP requirements, air quality planning, and applicable requirements related to the NAAQS. There were no outstanding issues in relation to the SIP for fiscal year 2018, therefore, Alabama's grants were finalized and closed out. Alabama's funding is also met through the State's title V fee program at ADEM Admin. Code r. 335-1-7— Air Division Operating Permit Fees   12 and ADEM Admin. Code r. 335-1-6— Application Fees . 13 For 110(a)(2)(E)(iii), requirements dictating the roles of local or regional governments are derived from Ala. Code section 22-28-23, which do not allow local programs to be less strict than the Alabama SIP and allows for oversight from the Alabama Environmental Commission.

Section 110(a)(2)(E)(ii) requires that the state comply with section 128 of the CAA. Section 128 requires that the SIP contain requirements providing that: (a)(1) The majority of members of the state board or body which approves permits or enforcement orders represent the public interest and do not derive any significant portion of their income from persons subject to permitting or enforcement orders under the CAA; and (a)(2) any potential conflicts of interest by such board or body, or the head of an executive agency with similar powers be adequately disclosed. Alabama's infrastructure SIP submission cites to the following SIP-approved provisions: ADEM Admin. Code r. 335-1-1.03, “Organization and Duties of the Commission”, 335-1-1.04, “Organization of the department”. These regulations mandate that members of the Alabama Environmental Management Commission (EMC), and the ADEM Director, Deputy Director, Division Chiefs, and all ADEM personnel meet all requirements of the state ethics law and the conflict of interest provisions of applicable Federal laws. ADEM and the EMC are the entities that have the authority to issue and approve CAA permits and enforcement orders. The ADEM Air Director has the authority to approve permits and enforcement orders for Alabama. In the case of appeal, permits and enforcement orders are sent to the EMC and the EMC has final approval authority.

In support of sub-elements 110(a)(2)(E)(i) and (iii), South Carolina's infrastructure SIP submission cites to several provisions. S.C. Code Ann. Section 48, Title 1, as referenced in South Carolina's infrastructure SIP submission, provides the SC DHEC's general legal authority to establish a SIP and implement related plans. S.C. Code Ann. Section 48-1-50(12) grants SC DHEC the statutory authority to “[a]ccept, receive and administer grants or other funds or gifts for the purpose of carrying out any of the purposes of this chapter; [and to] accept, receive and receipt for federal money given by the Federal government under any Federal law to the State of South Carolina for air or water control activities, surveys or programs .” S.C. Code Ann. Section 48, Title 2 grants SC DHEC statutory authority to establish environmental protection funds, which provide resources for SC DHEC to carry out its obligations under the CAA. Specifically, in Regulation 61-30, Environmental Protection Fees, SC DHEC established fees for sources subject to air permitting programs. SC DHEC notes that it implements the SIP in accordance with the provisions of S.C. Code Ann § 1-23-40 (the Administrative Procedures Act) and S.C. Code Ann. Section 48, Title 1. For Section 110(a)(2)(E)(iii), the submission states that South Carolina does not rely on localities for implementing any portion of the CAA.

As evidence of the adequacy of SC DHEC's resources with respect to sub-elements (i) and (iii), EPA submitted a letter to South Carolina on May 2, 2019, outlining 105 grant commitments and the current status of these commitments for fiscal year 2018. The letter EPA submitted to South Carolina can be accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-2019-0014. Annually, states update these grant commitments based on current SIP requirements, air quality planning, and applicable requirements related to the NAAQS. There were no outstanding issues in relation to the SIP for fiscal year 2018, therefore, SC DHEC's grants were finalized and closed out.

With respect to 110(a)(2)(E)(ii), 14 South Carolina satisfies the requirements of CAA section 128(a)(1) for the South Carolina Board of Health and Environmental Control, which is the “board or body which approves permits and enforcement orders” under the CAA in South Carolina, through S.C. Code Ann. Sections 8-13-100, 8-13-700(A) and (B), and 8-13-730. S.C. Code Ann. Section 8-13-730 provides that “[u]nless otherwise provided by law, no person may serve as a member of a governmental regulatory agency that regulates business with which that person is associated,” and S.C. Code Ann. Section 8-13-700(A) which provides in part that “[n]o public official, public member, or public employee may knowingly use his official office, membership, or employment to obtain an economic interest for himself, a member of his immediate family, an individual with whom he is associated, or a business with which he is associated.” S.C. Code Ann. Section 8-13-700(B)(1)-(5) provides for disclosure of any conflicts of interest by a public official, public member or public employee. These State statutes have been approved into the South Carolina SIP as required by CAA section 128 and meet the requirement of CAA Section 128(a)(1) concerning boards and bodies representing the public interest and not deriving significant income from regulated entities; and 128(2) concerning adequate disclosure of potential conflicts of interest.

EPA has made the preliminary determination that Alabama's and South Carolina's SIPs have adequately addressed the requirements of section 128(a), and accordingly have met the requirements of section 110(a)(2)(E)(ii) with respect to infrastructure SIP requirements. EPA is proposing to approve Alabama's and South Carolina's, infrastructure SIP submissions as meeting the requirements of sub-elements 110(a)(2)(E)(i), (ii) and (iii).

7. 110(a)(2)(F) Stationary Source Monitoring and Reporting: Section 110(a)(2)(F) requires SIPs to meet applicable requirements addressing: (i) The installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources, (ii) periodic reports on the nature and amounts of emissions and emissions related data from such sources, and

(iii) correlation of such reports by the state agency with any emission limitations or standards established pursuant to this section, which reports shall be available at reasonable times for public inspection. EPA's rules regarding how SIPs need to address source monitoring requirements at 40 CFR 51.212 require SIPs to exclude any provision that would prevent the use of credible evidence of noncompliance.

Additionally, States are required to submit emissions data to EPA for purposes of the National Emissions Inventory (NEI), pursuant to Subpart A to 40 CFR part 51—“Air Emissions Reporting Requirements.” The NEI is EPA's central repository for air emissions data. All states are required to submit a comprehensive emission inventory every three years and report emissions for certain larger sources annually through EPA's online Emissions Inventory System. States report emissions data for the six criteria pollutants and the precursors that form them—nitrogen oxides, sulfur dioxides, ammonia, lead, carbon monoxide, particulate matter, and volatile organic compounds. Many states also voluntarily report emissions of hazardous air pollutants.

Alabama's infrastructure SIP submission cites to ADEM Admin. Code r. 335-3-1-.04— Monitoring, Records, and Reporting, 335-3-12— Continuous Monitoring Requirements for Existing Source, and ADEM Admin. Code r. 335-3-1-.13— Credible Evidence for this requirement. ADEM Admin. Code r. 335-3-1-.04— Monitoring, Records, and Reporting, authorizes the Director of ADEM to require sources to install, use and maintain monitoring equipment and submit emissions monitoring reports as prescribed by the Director. Pursuant to this regulation, these sources collect air monitoring data, quality assure the results, and report the data as prescribed by the Director. ADEM Admin. Code r. 335-3-12— Continuous Monitoring Requirements for Existing Sources requires certain existing sources to continuously monitor emissions of specified pollutants. Additionally, ADEM Admin. Code r. 335-3-12-.02 requires owners and operators of emissions sources to “install, calibrate, operate and maintain all monitoring equipment necessary for continuously monitoring the pollutants.”  15 ADEM Admin. Code r. 335-3-1-.13— Credible Evidence, makes allowances for owners and/or operators to utilize “any credible evidence or information relevant” to demonstrate compliance with applicable requirements if the appropriate performance or compliance test had been performed, for the purpose of submitting compliance certification and can be used to establish whether or not an owner or operator has violated or is in violation of any rule or standard. Accordingly, EPA is unaware of any provision preventing the use of credible evidence in the Alabama SIP.

Alabama's most recently published triennial compiled emissions information is available as part of the 2014 NEI. EPA compiles the emissions data, supplementing it where necessary, and releases it to the public through the website: https://www.epa.gov/air-emissions-inventories/2014-national-emissions-inventory-nei-data .

The South Carolina submissions cites to SIP-approved Regulation 61-62.1, Definitions and General Requirements, Section III, Emission Inventory which provides for emission inventories and other emission monitoring and reporting requirements for stationary sources. Specifically, this regulation provides an emission inventory plan that establishes reporting requirements for various pollutants from permitted facilities on annual or three-year cycles, depending on emission levels and nonattainment area status. Further, S.C. Code Ann. § 48-1-22 provides the Department with the necessary authority to “Require the owner of operator of any source or disposal system to establish and maintain such operational records; make reports; install, use and maintain monitoring equipment or methods; samples and analyze emissions or discharges in accordance with prescribed methods, at locations, intervals, and procedures as the Department shall prescribe; and provide such other information as the Department reasonably may require.” Finally, R. 61-62.1, Section V, Credible Evidence, specifies that non-reference test data and other information already available and utilized for other purposes may be used to demonstrate compliance or noncompliance with emission standards. Accordingly, EPA is unaware of any provision preventing the use of credible evidence in the South Carolina SIP.

South Carolina's most recently published triennial compiled emissions information is available as part of the 2014 NEI. EPA compiles the emissions data, supplementing it where necessary, and releases it to the public through the website: https://www.epa.gov/air-emissions-inventories/2014-national-emissions-inventory-nei-data .

EPA has made the preliminary determination that Alabama's and South Carolina's SIP and practices are adequate for the stationary source monitoring systems related to the 2015 8-hour ozone NAAQS. Accordingly, EPA is proposing to approve Alabama's and South Carolina's infrastructure SIP submission with respect to section 110(a)(2)(F).

8. 110(a)(2)(G) Emergency Powers: This section requires that states demonstrate authority comparable with section 303 of the CAA and adequate contingency plans to implement such authority.

Alabama's infrastructure SIP submission cites Ala. Code sections 22-28-22, 22-28-14 and 22-28-21, which gives ADEM authority to adopt regulations for the purpose of protecting human health, welfare and the environment as required by section 303 of the CAA. ADEM Admin. Code r. 335-3-2— Air Pollution Emergency, provides for the identification of air pollution emergency episodes, episode criteria, and emissions reduction plans. Alabama's compliance with section 303 of the CAA and adequate contingency plans to implement such authority is also met by Ala. Code section 22-28-21 Air Pollution Emergencies . Ala. Code Section 22-28-21 provides ADEM the authority to order the “person or persons responsible for the operation or operations of one or more air contaminants sources” causing “imminent danger to human health or safety in question to reduce or discontinue emissions immediately.” The order triggers a hearing no later than 24-hours after issuance before the Environmental Management Commission which can affirm, modify or set aside the Director's order. Additionally, the Governor can, by proclamation, declare, as to all or any part of said area, that an air pollution emergency exists and exercise certain powers in whole or in part, by the issuance of an order or orders to protect the public health. Under Ala. Code sections 22-28-3(a) and 22-28-10(2), ADEM also has the authority to issue such orders as may be necessary to effectuate the purposes of the Alabama Pollution Control Act, which includes achieving and maintaining such levels of air quality as will protect human health and safety and, to the greatest degree practicable, prevent injury to plant and animal life and property, foster the comfort and convenience of the people, promote the social development of this state and facilitate the enjoyment of the natural attractions of the state.

South Carolina's infrastructure SIP submission cites Regulation 61-62.3, Air Pollution Episodes, which provides for contingency measures when an air pollution episode or exceedance may lead to a substantial threat to the health of persons in the state or region. S.C. Code Ann. Section 48-1-290 provides SC DHEC, with concurrent notice to the Governor, the authority to issue an order recognizing the existence of an emergency requiring immediate action as deemed necessary by SC DHEC to protect the public health or property. Any person subject to this order is required to comply immediately. Additionally, S.C. Code Ann. Section 1-23-130 provides SC DHEC with the authority to establish emergency regulations to address an imminent peril to public health, or welfare, and authorizes emergency regulations to protect natural resources if any natural resource related agency in the State finds that abnormal or unusual conditions, immediate need, or the State's best interest require such emergency action.

EPA has made the preliminary determination that Alabama's and South Carolina's SIPs state laws are adequate for emergency powers related to the 2015 8-hour ozone NAAQS. Accordingly, EPA is proposing to approve Alabama's and South Carolina's infrastructure SIP submission with respect to section 110(a)(2)(G).

9. 110(a)(2)(H) SIP Revisions: Section 110(a)(2)(H), in summary, requires each SIP to provide for revisions of such plan: (i) As may be necessary to take account of revisions of such national primary or secondary ambient air quality standard or the availability of improved or more expeditious methods of attaining such standard, and (ii) whenever the Administrator finds that the plan is substantially inadequate to attain the NAAQS or to otherwise comply with any additional applicable requirements.

As previously discussed, ADEM is responsible for adopting air quality rules and revising SIPs as needed to attain or maintain the NAAQS. Alabama has the ability and authority to respond to calls for SIP revisions and has provided a number of SIP revisions over the years for implementation of the NAAQS. ADEM Admin. Code r. 335-1-1-.03— Organization and Duties of the Commission, 16 provides the Alabama Environmental Management Commission with the authority to establish, adopt, promulgate, modify, repeal and suspend rules, regulations, or environmental standards which may be applicable to Alabama or “any of its geographic parts.” Admin. Code r. 335-3-1-.03— Ambient Air Quality Standards, incorporates NAAQS, as amended or revised, and provides that the NAAQS apply throughout the State.

SC DHEC is responsible for adopting air quality rules and revising SIPs as needed to attain or maintain the NAAQS in South Carolina. The State has the ability and authority to respond to calls for SIP revisions and has provided a number of SIP revisions over the years for implementation of the NAAQS. S.C. Code Ann. Section 48, Title 1, provides SC DHEC with the necessary authority to revise the SIP to accommodate changes in the NAAQS and thus revise the SIP as appropriate.

EPA has made the preliminary determination that Alabama's and South Carolina's SIP submissions, adequately provide for future SIP revisions related to the 2015 8-hour ozone NAAQS when necessary. Accordingly, EPA is proposing to approve Alabama's, and South Carolina's infrastructure SIP submission with respect to section 110(a)(2)(H).

10. 110(a)(2)(J) Consultation with government officials, public notification, and PSD and visibility protection: EPA is proposing to approve Alabama's, and South Carolina's infrastructure SIP for the 2015 8-hour ozone NAAQS with respect to the general requirement in section 110(a)(2)(J) to include a program in the SIP that complies with the applicable consultation requirements of section 121, the public notification requirements of section 127 and PSD.

With regard to the PSD element of section 110(a)(2)(J), this requirement is met by a state's confirmation in an infrastructure SIP submission that the state has a SIP-approved PSD program meeting all the current requirements of part C of title I of the CAA for all NSR regulated pollutants. As discussed in more detail above under the section discussing 110(a)(2)(C), the Alabama and South Carolina SIPs contain provisions for the State's PSD programs that reflect current PSD requirements to satisfy the PSD element of section 110(a)(2)(J).

With regard to the visibility protection element of section 110(a)(2)(J), EPA's 2013 Guidance notes that it does not treat the visibility protection aspects of section 110(a)(2)(J) as applicable for purposes of the infrastructure SIP approval process. EPA recognizes that states are subject to visibility protection and regional haze program requirements under part C of the Act (which includes sections 169A and 169B). However, there are no newly applicable visibility protection obligations after the promulgation of a new or revised NAAQS. Thus, EPA has determined that states do not need to address the visibility component of 110(a)(2)(J) in infrastructure SIP submittals. As such, Alabama's and South Carolina's infrastructure SIP submissions related to the 2015 8-hour ozone NAAQS do not address the visibility protection element of section 110(a)(2)(J).

With regard to consultation, Section 110(a)(2)(J) of the CAA requires states to provide a process for consultation with local governments, designated organizations and Federal Land Managers (FLMs) carrying out NAAQS implementation requirements pursuant to section 121 relative to consultation. EPA's rationale for the consultation and public notice sub-elements for Alabama and South Carolina are described below.

Alabama Consultation with government officials (121 consultation): ADEM Admin. Code r. 335-3-1-.03— Ambient Air Quality Standards, as well as its Regional Haze Implementation Plan (which allows for continued consultation with appropriate state, local, and tribal air pollution control agencies as well as the corresponding FLMs), provide for consultation with government officials whose jurisdictions might be affected by SIP development activities. In addition, Alabama adopted state-wide consultation procedures for the implementation of transportation conformity which includes the development of mobile inventories for SIP development. Required partners covered by Alabama's consultation procedures include federal, state and local transportation and air quality agency officials.

Public notification (127 public notification): ADEM Admin. Code r. 335-3-14-.01(7)— Public Participation, and 335-3-14-.05(13)— Public Participation, and Ala. Code section 22-28-21— Air Pollution Emergencies, provide for public notification when air pollution episodes occur. Furthermore, ADEM has several public notice mechanisms in place to notify the public of ozone forecasting. Alabama maintains a public website on which daily air quality index forecasts are posted for the Birmingham, Huntsville, and Mobile areas. This website can be accessed at: http://adem.alabama.gov/programs/air/airquality.cnt .

Consultation with government officials (121 consultation): South Carolina's Regulation 61-62.5, Standard No. 7, Prevention of Significant Deterioration, as well as the State's Regional Haze Implementation Plan (which allows for consultation between appropriate state, local, and tribal air pollution control agencies as well as the corresponding FLM), provide for consultation with government officials whose jurisdictions might be affected by SIP development activities. South Carolina has SIP-approved state-wide consultation procedures for the implementation of transportation conformity. Implementation of transportation conformity as outlined in the consultation procedures requires SC DHEC to consult with federal, state and local transportation and air quality agency officials on the development of motor vehicle emissions budgets. Additionally, S.C. Code Section 48-1-50(8) provides SC DHEC with the necessary authority to “Cooperate with the governments of the United States or other states or state agencies or organizations, official or unofficial, in respect to pollution control matters or for the formulation of interstate pollution control compacts or agreements.”

Public notification (127 public notification): Regulation 61-62.3, Air Pollution Episodes, requires that SC DHEC notify the public of any air pollution episode or NAAQS violation. S.C. Code Ann. § 48-1-60 establishes that “Classification and standards of quality and purity of the environment [are] authorized after notice and hearing.” Additionally, Regulation 61-62.5, Standard 7.1(q), Public Participation, notifies the public by advertisement in a newspaper of general circulation in each region in which a proposed plant or modifications will be constructed of the degree of increment consumption that is expected from the plant or modification, and the opportunity for comment at a public hearing as well as the opportunity to provide written public comment. An opportunity for a public hearing for interested persons to appear and submit written or oral comments on the air quality impact of the plant or modification, alternatives to the plant or modification, the control technology required, and other appropriate considerations is also offered.

EPA also notes that SC DHEC maintains a website that provides the public with notice of ozone NAAQS exceedances, measures the public can take to help prevent such exceedances, and the ways in which the public can participate in the regulatory process. See https://www.scdhec.gov/environment/your-air/most-common-air-pollutants/ozone-forecast .

EPA has made the preliminary determination that Alabama's and South Carolina's SIPs and practices adequately demonstrate that the States meets applicable requirements related to consultation with government officials, ability to provide public notification, and PSD of section 110(a)(2)(J) for the 2015 8-hour ozone NAAQS. Thus, EPA is proposing to approve Alabama's, and South Carolina's infrastructure SIP for the 2015 8-hour ozone NAAQS with respect to the general requirement in section 110(a)(2)(J).

11. 110(a)(2)(K) Air Quality Modeling and Submission of Modeling Data: Section 110(a)(2)(K) of the CAA requires that SIPs provide for performing air quality modeling so that effects on air quality of emissions from NAAQS pollutants can be predicted and submission of such data to EPA can be made.

ADEM Admin. Code r. 335-3-14-.04— Prevention of Significant Deterioration Permitting, specifically sub-paragraph (11)— Air Quality Models, specifies that required air modeling be conducted in accordance with the applicable EPA air quality models specified in the “Guideline on Air Quality Models.” ADEM Admin. Code r. 335-3-1-.04— Monitoring, Records, and Reporting details how sources are required as appropriate to establish and maintain records; make reports; install, use, and maintain such monitoring equipment or methods; and provide periodic emission reports as the regulation requires. These reports and records are required to be compiled and submitted to the State. These regulations also demonstrate that Alabama has the authority to provide relevant data for the purpose of predicting the effect on ambient air quality of the 2015 8-hour ozone NAAQS.

Additionally, Alabama participates in a regional effort to coordinate the development of emissions inventories and conduct regional modeling for several NAAQS, including the 2015 8-hour ozone NAAQS, for the southeastern states. Taken as a whole, Alabama's air quality regulations and practices demonstrate that ADEM has the authority to provide relevant data for the purpose of predicting the effect on ambient air quality of any emissions of any pollutant for which a NAAQS has been promulgated, and to provide such information to EPA Administrator upon request.

South Carolina's Regulations 61-62.5, Standard No. 2, Ambient Air Quality Standards, and Regulation 61-62.5, Standard No. 7, Prevention of Significant Deterioration, of the South Carolina SIP specify that required air modeling be conducted in accordance with 40 CFR part 51, Appendix W, Guideline on Air Quality Models . Also, S.C. Code Ann. § 48-1-50(14) provides SC DHEC with the necessary authority to “Collect and disseminate information on air and water control.”

Additionally, South Carolina participates in a regional effort to coordinate the development of emissions inventories and conduct regional modeling for several NAAQS, including the 2015 8-hour ozone NAAQS, for the southeastern states. Taken as a whole, South Carolina's air quality regulations and practices demonstrate that SC DHEC has the authority to provide relevant data for the purpose of predicting the effect on ambient air quality of any emissions of any pollutant for which a NAAQS had been promulgated, and to provide such information to EPA Administrator upon request.

EPA has made the preliminary determination that Alabama's and South Carolina's SIP and practices adequately demonstrate the State's ability to provide for air quality modeling, along with analysis of the associated data, related to the 2015 8-hour ozone NAAQS. Accordingly, EPA is proposing to approve Alabama's and South Carolina's infrastructure SIP submissions with respect to section 110(a)(2)(K).

12. 110(a)(2)(L) Permitting Fees: This section requires the owner or operator of each major stationary source to pay to the permitting authority, as a condition of any permit required under the CAA, a fee sufficient to cover: (i) The reasonable costs of reviewing and acting upon any application for such a permit, and (ii) if the owner or operator receives a permit for such source, the reasonable costs of implementing and enforcing the terms and conditions of any such permit (not including any court costs or other costs associated with any enforcement action), until such fee requirement is superseded with respect to such sources by the Administrator's approval of a fee program under title V.

ADEM Admin. Code r. 335-1-6— Application Fees   17 requires ADEM to charge permit-specific fees to the applicant/source as authorized by Ala. Code section 22-22A-5. ADEM relies on these State requirements to demonstrate that its permitting fee structure is sufficient for the reasonable cost of reviewing and acting upon PSD and NNSR permits. Additionally, Alabama has a fully-approved title V operating permit program—ADEM Admin. Code r. 335-1-7— Air Division Operating Permit Fees   18 —that covers the cost of implementation and enforcement of PSD and NNSR permits after they have been issued.

S.C. Code Ann. Section 48-2-50 prescribes that SC DHEC charge fees for environmental programs it administers pursuant to federal and State law and regulations including those that govern the costs to review, implement and enforce PSD and NNSR permits. Regulation 61-30, Environmental Protection Fees   19 prescribes fees applicable to applicants and holders of permits, licenses, certificates, certifications, and registrations, establishes procedures for the payment of fees, provides for the assessment of penalties for nonpayment, and establishes an appeal process for refuting fees. Additionally, South Carolina has a federally-approved title V program, Regulation 61-62.70, Title V Operating Permit Program , 20 which assesses fees to provide for the implementation and enforcement of the requirements of PSD and NNSR for facilities once they begin operating.

EPA has made the preliminary determination that Alabama's and South Carolina's state rules and practices adequately provide for permitting fees related to the 2015 8-hour ozone NAAQS, when necessary. Accordingly, EPA is proposing to approve Alabama's and South Carolina's infrastructure SIP submissions with respect to section 110(a)(2)(L).

13. 110(a)(2)(M) Consultation and Participation by Affected Local Entities: Section 110(a)(2)(M) of the Act requires states to provide for consultation and participation in SIP development by local political subdivisions affected by the SIP.

ADEM coordinates with local governments affected by the SIP. ADEM Administrative Code 335-3-17-.01— Transportation Conformity is one way that Alabama provides for consultation with affected local entities. More specifically, Alabama adopted state-wide consultation procedures for the implementation of transportation conformity which includes the development of mobile inventories for SIP development and the requirements that link transportation planning and air quality planning in nonattainment and maintenance areas. Required partners covered by Alabama's consultation procedures include federal, state and local transportation and air quality agency officials. Furthermore, ADEM has worked with the Federal Land Managers as a requirement of the regional haze rule.

South Carolina's Regulation 61-62.5, Standard No. 7, Prevention of Significant Deterioration, of the South Carolina SIP requires that SC DHEC notify the public, which includes local entities, of an application, preliminary determination, the activity or activities involved in the permit action, any emissions change associated with any permit modification, and the opportunity for comment prior to making a final permitting decision. Also, as noted above, S.C. Code Ann. Section 48-1-50(8) allows SC DHEC to “Cooperate with the governments of the United States or other states or state agencies or organizations, officials, or unofficial, in respect to pollution control matters or for the formulation of interstate pollution control compacts or agreements.” By way of example, SC DHEC has worked closely with local political subdivisions during the development of its Transportation Conformity SIP and Regional Haze Implementation Plan.

EPA has made the preliminary determination that Alabama's and South Carolina's SIP and practices adequately demonstrate consultation with affected local entities related to the 2015 8-hour ozone NAAQS when necessary.

With the exception of interstate transport provisions pertaining to contribution to nonattainment or interference with maintenance in other states of section 110(a)(2)(D)(i)(I) (prongs 1 and 2), EPA is proposing to approve Alabama's and South Carolina's August 20, 2018 and September 7, 2018, SIP submissions for the 2015 8-hour ozone NAAQS for the above described infrastructure SIP requirements, respectively. EPA is proposing to approve Alabama's and South Carolina's infrastructure SIP submissions for the 2015 8-hour ozone NAAQS because the submissions are consistent with section 110 of the CAA.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. See 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. These actions merely propose to approve state law as meeting Federal requirements and do not impose additional requirements beyond those imposed by state law. For that reason, these proposed actions:

• Are not significant regulatory actions 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);

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

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

• Are 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. );

• Do 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);

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

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

• Are not significant regulatory actions subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Are 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

• Do 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).

The Alabama 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 as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

Because this SIP action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law, this proposed SIP action for the State of South Carolina does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). Therefore, this action will not impose substantial direct costs on Tribal governments or preempt Tribal law. The Catawba Indian Nation (CIN) Reservation is located within the boundary of York County, South Carolina. Pursuant to the Catawba Indian Claims Settlement Act, S.C. Code Ann. 27-16-120 (Settlement Act), “all state and local environmental laws and regulations apply to the [Catawba Indian Nation] and Reservation and are fully enforceable by all relevant state and local agencies and authorities.” The CIN also retains authority to impose regulations applying higher environmental standards to the Reservation than those imposed by state law or local governing bodies, in accordance with the Settlement Act.

EPA is proposing to approve changes to the Alabama SIP that were provided to EPA through two letters dated August 27, 2018, and October 25, 2018. 1 Specifically, EPA is proposing to approve two SIP revisions that include changes to Alabama's CSAPR regulations, found in ADEM Administrative Code Rules 335-3-5-.13, 335-3-8-.14, 335-3-8-.40, and 335-3-8-.46. 2

Alabama's August 27, 2018, SIP revision makes changes to ADEM's CSAPR regulations by adding the term “Group 2” in several places to Rule 335-3-8-.40 to make the terminology consistent with EPA's CSAPR NO X Ozone Season Group 2 Trading Program regulations. Alabama's October 25, 2018, SIP revision changes the CSAPR regulations in Rules 335-3-5-.13, 335-3-8-.14, and 335-3-8-.46 by explicitly addressing the disposition of any allowances that remain after allocations to all existing units have reached their historical emission caps as well as any allowances set aside for new units in Indian country within the State and not used for that purpose. In addition, the October 25, 2018, SIP revision makes minor and administrative changes, such as correcting typographical errors.

EPA issued CSAPR in July 2011 and the CSAPR Update in September 2016 to address the requirements of CAA section 110(a)(2)(D)(i)(I) concerning interstate transport of air pollution for specific National Ambient Air Quality Standards (NAAQSs). 3 Under CSAPR, large electricity generating units (EGUs) in Alabama were subject to the Federal Implementation Plan (FIP) provisions requiring the units to participate in federal allowance trading programs for annual emissions of sulfur dioxide (SO 2 ) and annual and ozone season emissions of nitrogen oxides (NO X ). CSAPR includes provisions under which states may submit for EPA approval SIP revisions to modify or replace the CSAPR FIP requirements while allowing states to continue to meet their transport-related obligations using either CSAPR's federal emissions trading programs or state emissions trading programs integrated with the federal programs, provided that the SIP revisions meet all relevant criteria. Alabama previously submitted, and EPA has approved, SIP revisions to replace the CSAPR and CSAPR Update FIP requirements applicable to the State's EGUs with requirements established under Alabama's own CSAPR state trading program regulations. See 81 FR 59869 (August 31, 2016); 82 FR 46674 (October 6, 2017).

Alabama's August 27, 2018, SIP revision makes changes to the State's CSAPR regulations by adding the term “Group 2” throughout Rule 335-3-8-.40. These changes were intended to make the terminology in ADEM's Transport Rule (TR) NO X Ozone Season Group 2 Trading Program rule consistent with EPA's CSAPR regulations.

Alabama's October 25, 2018, SIP revision makes changes to the State's CSAPR regulations by amending Rules 335-3-8-.14 and 335-3-8-.46, in the CSAPR NO X trading rules in Chapter 335-3-8, and Rule 335- 3-5-.13, in the CSAPR SO 2 trading rules in Chapter 335-3-5, to more clearly address the distribution of any allowances that may remain after allocations to all existing units have reached their historical emissions caps. These revisions ensure that Alabama's rules contain provisions explicitly providing for the disposition of the total budget established for units in Alabama by EPA for each trading program, consistent with Alabama's original intent in adopting its trading program regulations and with EPA's understanding when initially approving the regulations into the SIP. 4 Similarly, language was also added to Rule 335-3-8-.14 to explicitly provide for the disposition of 13 allowances that are set aside for any new CSAPR NO X Ozone Season Group 2 units in Indian country within the State of Alabama in the event that EPA does not allocate the allowances to such units. Finally, as discussed above, addition, the October 25, 2018, SIP revision makes minor changes that do not change the substance of the regulations, such as correcting typographical errors.

With the aforementioned changes, the State's CSAPR regulations as revised remain consistent with all the applicable requirements in 40 CFR 52.38 and 52.39 for approval of CSAPR SIP revisions. EPA proposes to find that these changes to Rule 335-3-5 and Rule 335-3-8 also will not interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in section 171), or any other applicable requirement of the CAA. Therefore, EPA is proposing to approve these changes into the Alabama SIP.

In this document, 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 is proposing to incorporate by reference ADEM Administrative Code Rules 335-3-5-.13, 335-3-8-.14, 335-3-8-.40, and 335-3-8-.46, which make the following revisions to Alabama's SIP: Add the term “Group 2” to the State's rules consistent with EPA's CSAPR NO X Ozone Season Group 2 Trading Program regulations, address the disposition of any allowances that remain after allocations to all existing units have reached their historical emission caps as well as any allowances set aside for new CSAPR NO X Ozone Season Group 2 units in Indian country within Alabama and not used for that purpose, and make other minor changes. The revisions were state effective on October 5, 2018, and December 7, 2018. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 4 office (please contact the person identified in the For Further Information Contact section of this preamble for more information).

EPA is proposing to approve changes to the Alabama SIP, that were provided to EPA through Alabama's August 27, 2018, and October 25, 2018, SIP revisions. Specifically, EPA is proposing to approve changes to ADEM Administrative Code Rules 335-3-5-.13, 335-3-8-.14, 335-3-8-.40, and 335-3-8-.46, as described above, in order to make the terminology in Alabama's regulations more consistent with the federal CSAPR regulations and explicitly provide for the disposition of certain allowances included in the State's overall budgets. This action is limited to the rules currently before the Agency and does not modify any other CSAPR rules in Alabama's SIP.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. See 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. These actions merely propose to approve state law as meeting Federal requirements and do not impose additional requirements beyond those imposed by state law. For that reason, these proposed actions:

• Are not significant regulatory actions 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);

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

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

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

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

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

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

• Are not significant regulatory actions subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Are 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

• Do 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).

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 as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

Stage I and Stage II vapor recovery systems at gasoline dispensing facilities (GDFs) control hydrocarbon vapors, such as volatile organic compounds (VOC), at the point of the delivery truck's dispensing gasoline to storage tanks (Stage I) and during the refueling of motor vehicles (Stage II). Stage I vapor recovery systems (Stage I Systems), which have been in place nationwide since the 1970s, route displaced vapors back to the delivery truck (through either a dual-point or a single-point delivery and vent system) during unloading of gasoline from the truck to the storage tank. A dual-point system utilizes two hoses: One to deliver the product and the other to return the vapors back to the tanker truck with rotatable adapters located on the product port and the vapor port. A single-point vapor recovery system utilizes one co-axial hose that is essentially a hose within a hose, allowing product to enter and vapors to exit at the same time.

Stage II vapor recovery systems (Stage II Systems) have been required in New Jersey since 1988. They utilize nozzles and hoses, installed on the GDF dispenser, that capture the fuel vapors from the gas tank of the refueling vehicle and return the vapors to the underground or aboveground storage tank via underground piping to prevent vapors from escaping to the atmosphere. GDFs in New Jersey employ two types of Stage II Systems—vacuum-assist and vapor balance systems. Vacuum-assist systems rely on a vacuum pump in the dispensing nozzle to move vapors from the vehicle into the GDF storage tank. Vapor balance systems transfer vapors from the vehicle to the storage tank based on pressure differential. Vacuum-assist systems work best with vehicles that are not equipped with technology to capture hydrocarbon emission inside the vehicle.

Onboard refueling vapor recovery (ORVR) systems, a type of hydrocarbon emission control technology, is a carbon canister installed in automobiles to capture fuel vapors evacuated from the vehicle gasoline tank before those vapors reach the GDF pump nozzle. The ORVR captures and holds the vapors until they are combusted in the engine during operation. Incompatibility between the ORVR and vacuum-assist Stage II Systems could result in excess emissions from the GDF storage tank. Such an incompatibility could result from the ORVR's causing the vacuum pump on the nozzle to pump air rather than gasoline vapors back to the GDF storage tank. Vapor return to the GDF can lead to vapor growth, over-pressurization of the GDF storage tank, and potentially excess emissions. Thus, Stage II vapor recovery programs have become largely redundant and potentially incompatible controls. As such, the continued use of Stage II Systems achieves a declining emission reduction as an increasing proportion of the on-road motor vehicle fleet in New Jersey comprise of ORVR-equipped vehicles.

To address the potential incompatibility, some GDFs have installed ORVR-compatible Stage II Systems; these include: Vapor balance systems; vapor recovery systems with tank pressure management emission control equipment that are installed on the atmospheric vent of the GDF tank and operated in conjunction with Stage I and Stage II equipment; and vacuum assist systems that have ORVR-compatible pump nozzles.

Stage II Systems and ORVR systems were both required by the 1990 Amendments to the Clean Air Act (CAA). 1 However, Congress recognized that the two technologies would, in time, become redundant; therefore, the CAA allows GDFs to phase out of the Stage II program as more ORVR-equipped vehicles come into use.

On November 29, 2017, the New Jersey Department of Environmental Protection (the State) submitted a revision to its State Implementation Plan (SIP). The SIP revision consists of the State's newly adopted New Jersey Administrative Code (N.J.A.C.) 7:27-16.3, “Gasoline Transfer Operations,” (the Rule), which makes the following changes to the controls required for Phase II  2 vapor recovery at GDFs operating in New Jersey. For GDFs with existing ORVR-compatible Stage II Systems, the Rule allows GDFs to choose either: To decommission non-compliant systems within three years, or to continue to maintain the system as an ORVR-compatible system and comply with the requirement to test to ensure the system is working properly under N.J.A.C. 7:27-16.3(j). As part of decommissioning, under N.J.A.C. 7:27-16.3(g), each GDF with a storage tank greater than 2,000 gallons must be equipped with CARB-certified dripless enhanced conventional dispensing nozzles and dispenser hoses that are CARB-certified low permeation hoses. An existing GDF is not required to replace nozzles and hoses immediately with CARB-certified but may make the replacements as part of maintenance if prior to decommissioning. If no nozzle is CARB-certified at the time of the installation, decommissioning, or nozzle replacement, a conventional nozzle may be installed. This reflects the latest technology and furthers the State's efforts for attainment of the ozone NAAQS.

Under CAA Section 202(a)(6), Congress provided authority to EPA to allow states to remove ( e.g., decommission) Stage II vapor recovery programs from their SIPs, through a SIP revision, after EPA finds that ORVR is in widespread use nationwide. Nationally, the ORVR system has been phased in for new passenger vehicles since the model year 1998 and for light-duty trucks and most heavy-duty gasoline powered vehicles since model year 2001. Since 2006, nearly all new gasoline-powered light-duty vehicles, light-duty trucks, and heavy-duty vehicles have been equipped with ORVR systems.

On May 16, 2012, the EPA determined that ORVR systems are in widespread use nationwide for control of gasoline emissions during refueling of vehicles at GDFs (Widespread Use Rule). See 77 FR 28772 (May 16, 2012). The ORVR Widespread Use Rule also allowed the EPA to exempt all new ozone nonattainment areas classified serious or above from the requirement to adopt Stage II vapor recovery programs. Following promulgation of the Widespread Use Rule, the EPA issued guidance  3 on how states may develop approvable SIP revisions that seek to remove Stage II programs from SIPs (the EPA Guidance). The EPA Guidance provides recommendations on how states may assess and demonstrate compliance with relevant CAA requirements and consistency with the EPA Widespread Use Rule in decommissioning Stage II programs. First, the EPA Guidance indicates that Incremental Equation 1 may be used to demonstrate compliance with the non-interference provisions under Section 110(l) and comparable measures provisions under Section 184(b)(2) of the CAA. Second, the EPA Guidance states that Delta Equation 2 may be used to demonstrate that removal of a state's pre-1990 Stage II vapor recovery program would not constitute backsliding and that the state would be in compliance with Section 193 of the CAA.

The 2012 EPA widespread use analysis included in the EPA Guidance was based on the projected installation of ORVR systems on new model vehicles and estimates that in 2012 more than 75 percent of gasoline refueling nationwide would occur with ORVR-equipped vehicles. 4 The State, in its November 2017 submission, estimates that by 2017 approximately 90 percent of the vehicle fleet in New Jersey will have been equipped with ORVR technology.

The current proposed Rule allows for strengthening Stage I Systems to include, with a few exceptions, CARB-certified Stage I enhanced vapor recovery components. The amendments allow existing GDFs one year to install a CARB-certified Stage I enhanced vapor recovery pressure/vacuum relief vent valve and seven years to comply with the remaining equipment requirements. Unlike the CARB regulations, the proposed rule does not require all the components to be approved in the same Executive Order. The State's amendments also include an exception to the CARB requirements for single-point vapor balance systems and rotatable adapters for existing systems. The State requires a dual-point vapor balance system for new Stage I Systems. However, an existing facility that has already installed a single-point vapor balance system does not need to replace it with a dual-point system nor install rotatable adapters.

In reviewing the proposed SIP revision, the EPA must ensure that: (1) The State has demonstrated that the proposed action would not interfere with ozone attainment; (2) that the proposed action would achieve equivalent or greater emission reductions; and (3) that the ultimate period to remove Stage II Systems in New Jersey is during a time when the State can demonstrate de minimis incremental benefits. The EPA finds that the State has demonstrated widespread use of ORVR systems throughout the motor vehicle fleet and that implementation of the Rule in the proposed SIP revision would comply with CAA Sections 110(l), 184(b)(2), and 193. As outlined in the SIP revision, the modifications authorized under the proposed Rule  5 will result in an emission reduction of approximately 3.5 tons per day of VOC. In evaluating the State's analysis, the EPA also considered previous EPA approvals of the removal of Stage II System from other SIPs to ensure consistency to similar Stage II-related SIP revisions.

The State's proposed SIP revision also includes requirements for CARB-certified Stage I enhanced vapor recovery components for tank breathing and refueling systems. The Stage I enhancements will achieve approximately 5 tons per day of VOC emission reductions.

CAA Section 110(l) specifies that the EPA cannot approve a SIP revision if it would interfere with attainment of National Ambient Air Quality Standards (NAAQS), reasonable further progress towards attainment, or any other applicable requirement of the CAA. The State has demonstrated through application of the Incremental Equation 1 and the Motor Vehicle Emissions Simulator (MOVES) model to the relevant state emissions data, in accordance with the EPA Guidance, that the combination of the widespread use ORVR-equipped vehicles and the decommissioning of ORVR-incompatible vapor control systems will not result in an actual increase of VOC emissions in the State. For purposes of the current proposed rulemaking, the incremental emissions impact derived from Incremental Equation 1 is the difference between the refueling vapors that Stage II captures from non-ORVR vehicles and associated incompatible excess emissions. The EPA Guidance calls for demonstrating “the point in time at which de minimis incremental benefits are reached.” Using emissions data from a sample of urban and rural non-attainment areas ( i.e., Essex, Middlesex, Camden, Ocean, and Salem counties) the State estimated this time period to be a nine-year span from 2014 through 2022. As recommended in the EPA Guidance, the State used the MOVES model to estimate the fraction of gasoline dispensed to ORVR-equipped vehicles and the fraction of annual vehicle miles traveled by ORVR-equipped vehicles. The State used the above-mentioned nine-year span  6 and the five counties for the time and geographic parameters, respectively. Because a small, but declining, number of non-ORVR vehicles remain in the State highway fleet, there is a small, but ever-decreasing, level of future emission reduction that could be achieved from Stage II Systems. However, the State has demonstrated that statewide overall benefits from Stage II Systems become zero during the mid-2017 to mid-2021 timeframe; that is, Stage II System implementation provides no net difference in the total VOC emission. Because the timing of this proposed rulemaking coincides with the mid-2017 and mid-2021 timeframe ( i.e., the effective date for N.J.A.C. 7:27-16.3 is on or before December 23, 2020), the removal of the Stage II program from the SIP will not interfere with the State's attainment of the ozone NAAQS.

Because New Jersey is located in the northeast Ozone Transport Region, under CAA Section 184(b)(2), the State must adopt and implement either Stage II controls at GDFs or control measures capable of achieving emission reductions comparable to those achievable through Stage II Systems. The State conducted a statewide comparable measure analysis in accordance with the EPA Guidance that shows that phasing out the Stage II program would result in zero or de minimis   7 incremental loss of area wide emission control during the mid-2017 and mid-2021 timeframe. This is because as the number of ORVR vehicles increases, the efficiency of refueling ORVR vehicles at the Stage II GDFs decreases.

In determining the optimal period for requiring the decommissioning of Stage II Systems ( i.e., mid-2017 and mid-2021), the State analyzed Stage II related gasoline throughput distribution ( i.e., amount of gasoline dispensed) and the associated inefficiency that is due to ORVR-Stage II incompatibilities. The State's review included: Permitting and enforcement data; existing EPA and CARB throughput distribution estimates; and an NJDEP-administered survey  8 of GDFs. The State examined the effect on incremental loss of a range of gasoline throughputs ( i.e., 29 to 71 percent) that would occur at vacuum-assist facilities from the years 2014 to 2022. Based on its analysis, the State concluded that the incremental potential loss of area wide emission control for in the five representative counties under study would be de minimis under the EPA Guidance. See summary in Appendix A in the Docket. For example, Appendix A shows that for Middlesex County in the year 2017, if 29 percent of the gasoline throughput were to occur at Stage II facilities, given widespread use of ORVR-equipped vehicles, the incremental loss of emissions would be 3.5 percent; and if 71 percent of the gasoline throughput were to occur at Stage II facilities, the incremental loss would be 0.45 percent. Thus, the incremental loss would be less than 10 percent ( de minimis under the EPA Guidance) for 2017. The State's full analysis shows that for all the years under study ( i.e., 2014 to 2022) and for all five counties, the incremental loss would be de minimis under the EPA Guidance.

As part of the throughput distribution analysis, the State also undertook a determination of the “crossover period,” the timeframe over which use of Stage II Systems is expected to yield no net difference in controlled emissions and therefore represents the ideal time for the State to phase out the use of Stage II controls. The crossover period for New Jersey is from mid-2017 to mid-2021. The proposed rule amendments require decommissioning of ORVR-incompatible Stage II Systems on or before December 23, 2020, a date that is well within the projected crossover period. Therefore, the State's analysis has demonstrated that the decommissioning compliance date will not result in emission increases, hence the State will not need to adopt and implement any additional Stage II controls at GDFs or control measures capable of achieving emission reductions comparable to those achievable through Stage II Systems.

CAA Section 193 applies to nonattainment areas in states that adopt Stage II control programs into the SIP prior to November 15, 1990 and prohibits modification of any control unless the modification insures equivalent or greater emission reductions. As discussed above, the State adopted the Stage II program in 1988 and, therefore, must show that the proposed action will not result in backsliding of the ozone nonattainment requirements for the State.

To demonstrate compliance with CAA Section 193, the State used the EPA Guidance's Delta Equation 2 to show that the removal of Stage II Systems will have no impact on area-wide emissions reductions based on the difference between Stage II and ORVR efficiencies. As stated in Section V.a. above, the State demonstrated that statewide overall benefits from Stage II Systems would become zero during the mid-2017 and mid-2021 crossover period. Because Stage II decommissioning compliance date of on or before December 23, 2020 falls well within the crossover period, EPA finds no potential for backsliding.

The EPA is proposing to approve the State's November 29, 2017 SIP revision, which would incorporate into the State's SIP N.J.A.C. 7:27-16.3, “Gasoline Transfer Operations.” The SIP revision would allow for strengthening the Stage I vapor recovery requirements and decommissioning of Stage II Systems at GDFs. The EPA's proposal is based on the conclusion that the SIP revision conforms with the EPA Guidance, will not interfere with any applicable requirement of any NAAQS or with other applicable requirements of the CAA, and meets all applicable requirements of the CAA. The proposed gasoline transfer operation provisions will reduce emissions of gasoline vapors resulting in a reduction of VOCs, which contribute to the formation of ozone.

The State's November 29, 2017 SIP revision is approvable under CAA section 110(l) because VOC emissions increase that may have occurred between the years 2017 to 2021 are too small to interfere with attainment and reasonable further progress towards attainment of ozone NAAQS. The State's SIP submission also demonstrates that continuing a Stage II vapor recovery program would have resulted in an increase in refueling emissions due to excess emissions resulting from incompatibility between the ORVR and Stage II Systems. Preventing an increase in refueling emissions is consistent with non-interference requirements of the CAA Section 110(l).

The revision to the SIP also satisfies the “comparable measures” requirement of CAA section 184(b)(2), which requires OTR states proposing to remove Stage II control programs to implement measures that would achieve “comparable,” and not “equivalent,” reductions to existing Stage II programs. As stated in the EPA Guidance, “the comparable measures requirement is satisfied if phasing out a Stage II control program in a particular area is estimated to have no, or a de minimis, incremental loss of area-wide emission control.” In this case, the State has demonstrated that any temporary emissions increase resulting from phasing out of Stage II controls during the years 2017 to 2021 would be de minimis .

Finally, the State has satisfied the anti-backsliding requirements of CAA Section 193. The compliance date of on or about December 23, 2020 for decommissioning Stage II Systems and removal of the Stage II program from the SIP is well within the crossover period of mid-2017 and mid-2021 timeframe.

The State's November 29, 2017 comprehensive SIP submittal also proposed amendments for the air permitting program and for t-butyl acetate emission reporting requirements. However, the EPA will act on these amendments in a separate action.

The EPA is soliciting public comments on the issues discussed in this notice. These comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to this proposed rule by following the instructions listed in the ADDRESSES section of this Federal Register .

In this document, the EPA is proposing to include regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference revisions to NAJC 7:27-16.3, “Gasoline Transfer Operations” as described in this preamble.

The EPA has made, and will continue to make, these documents generally available electronically through http://www.regulations.gov and in hard copy at the appropriate EPA regional office, 290 Broadway, 25th floor, New York, New York, 10007-1866. Please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information.

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Clean Air Act 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 Clean Air Act. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 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 Clean Air Act; and

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

In addition, this proposed rule does not have tribal implications as specified by Executive Order 13175, because the SIP is not approved to apply in Indian country located in the state, and the EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply to this action.

This document consists of: (1) A summary of the most recent review of the status of Bradshaw's lomatium, resulting in a recommendation that the species be removed from the Federal List of Endangered and Threatened Plants (List); and (2) a proposal to remove Bradshaw's lomatium from the Federal List of Endangered and Threatened Plants.

Any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate as possible. Therefore, we request comments or information from other concerned governmental agencies, Tribes, the scientific community, industry, or other interested parties concerning this proposed rule. The comments that will be most useful and likely to influence our decisions are those supported by data or peer-reviewed studies and those that include citations to, and analyses of, applicable laws and regulations. Please make your comments as specific as possible and explain the basis for them. In addition, please include sufficient information (such as scientific journal articles or other publications) with your comments to allow us to authenticate any scientific or commercial data you reference or provide. In particular, we seek comments concerning the following:

(1) Reasons why we should or should not remove Bradshaw's lomatium from the Federal List of Endangered and Threatened Plants ( i.e., “delist” the species under the Act, 16 U.S.C. 1531 et seq. ).

(2) New biological or other relevant data concerning any threat (or lack thereof) to Bradshaw's lomatium and any existing regulations that may be addressing these or any of the stressors to the species discussed here.

(3) New information concerning the population size or trends of Bradshaw's lomatium.

(4) New information on the current or planned activities within the range of Bradshaw's lomatium that may either adversely affect or benefit the plant.

(5) New information or data on the projected and reasonably likely impacts to Bradshaw's lomatium or its habitat associated with climate change or any other factors that may affect the species in the future.

(6) Information pertaining to the requirements for post-delisting monitoring of Bradshaw's lomatium.

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

Prior to issuing a final rule on this proposed action, we will take into consideration all comments and any additional information we receive. Such information may lead to a final rule that differs from this proposal. All comments and recommendations, including names and addresses, will become part of the administrative record.

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

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

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Oregon Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT ).

Section 4(b)(5) of the Act provides for a public hearing on this proposal, if requested. Requests must be received within 45 days after the date of publication of this proposed rule in the Federal Register (see DATES , above). Such requests must be sent to the address shown in FOR FURTHER INFORMATION CONTACT . We will schedule a public hearing on this proposal, if requested, and announce the date, time, and place of the hearing, as well as how to obtain reasonable accommodations, in the Federal Register and local newspapers at least 15 days before the hearing.

In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), we sought the expert opinions of four appropriate and independent specialists with knowledge of the biology and ecology of Bradshaw's lomatium regarding the species status assessment report (Service 2018; see Status Assessment for Bradshaw's lomatium, below) that forms the basis for our 5-year review and this proposed rule. The purpose of peer review is to ensure that our determination regarding the status of the species under the Act is based on scientifically sound data, assumptions, and analyses. We received feedback from three of the four peer reviewers contacted; their comments and corrections have been incorporated into the species status assessment report, as appropriate.

A thorough review of the taxonomy, life history, and ecology of Bradshaw's lomatium is presented in the document “Species Status Assessment Report for Bradshaw's lomatium ( Lomatium bradshawii (Rose ex. Math.) Mathias & Constance) Version 1.0” (hereafter “species status report”; Service 2018), which is available at http://www.regulations.gov in Docket No. FWS-R1-ES-2019-0013, under Supporting Documents. The species status report documents the results of our comprehensive biological status review for Bradshaw's lomatium, and has undergone peer review. The species status report does not represent any decision by the Service regarding the status of Bradshaw's lomatium under the Act. It does, however, provide the scientific basis that informed our most recent 5-year review, which resulted in a recommendation that the species should be removed from the List. The species status report also serves as one of the bases for this proposed rule and our regulatory decision, which involves the further application of standards within the Act and its implementing regulations and policies.

In this proposed rule, we present only a summary of the key results and conclusions from the species status report; the full report is available at http://www.regulations.gov, as referenced above.

Bradshaw's lomatium is a perennial herb in the carrot or parsley family (Apiaceae) that is endemic to wet prairie habitats in western Oregon's Willamette Valley and adjacent southwestern Washington. These seasonally wet habitats may be flooded in the spring, or have soils saturated at or near the surface due to factors such as heavy precipitation in winter and spring, flooding, and poor drainage. A high light environment is important for Bradshaw's lomatium to complete its life cycle and reproduce, as reduced sunlight is associated with lower flower and seed production (Alverson 1993, unpublished data). This species is often associated with tufted hairgrass ( Deschampsia cespitosa ), and frequently occurs on and around the small mounds created by senescent tufted hairgrass plants. In wetter areas, Bradshaw's lomatium occurs on the edges of tufted hairgrass or sedges in patches of bare or open soil. In drier areas, it is found in low areas, such as small depressions, trails, or seasonal channels, with open, exposed soils. Self-fertilization is rare in Bradshaw's lomatium (Kaye and Kirkland 1994, p. 8), indicating that pollinator-mediated outcrossing is required for reproduction. Over 30 species of solitary bees, flies, wasps, and beetles have been observed visiting the flowers (Kaye 1992, p. 3; Kaye and Kirkland 1994, p. 9; Jackson 1996, pp. 72-76). Bradshaw's lomatium does not reproduce asexually and depends exclusively on seeds for reproduction (Kaye 1992, p. 2), but does not maintain a persistent seed bank in the soil. Although some fruit survives in the soil for 1 year, the seeds are not viable (Kaye et al. 2001, p. 1376). Further information on the basic biology and ecology of Bradshaw's lomatium is summarized in the species status report (Service 2018, entire).

Section 12 of the Act directed the Secretary of the Smithsonian Institution to prepare a report on those plants considered to be endangered, threatened, or extinct. This report, designated as House Document No. 94-51, was presented to Congress on January 9, 1975. On July 1, 1975, the Service published a notice in the Federal Register (40 FR 27823) of its acceptance of the report of the Smithsonian Institution as a petition within the context of former section 4(c)(2) of the Act (petition acceptance is now governed by section 4(b)(3) of the Act), and of its intention to review the status of the plant taxa named within. On June 16, 1976, the Service published a proposed rule in the Federal Register (41 FR 24523) to determine approximately 1,700 vascular plant species to be endangered species pursuant to section 4 of the Act. This list of 1,700 plant taxa was assembled on the basis of comments and data received by the Smithsonian Institution and the Service in response to House Document No. 94-51 and the July 1, 1975, Federal Register publication. Bradshaw's lomatium was included in the July 1, 1975, notice of review and in the June 16, 1976, proposal.

The Amendments of 1978 to the Act (Pub L. 95-632, November 10, 1978) required that all proposals over 2 years old be withdrawn. A 1-year grace period was established for proposals already over 2 years old. On December 10, 1979, the Service published a document in the Federal Register (44 FR 70796) withdrawing the still-pending portion of the June 16, 1976, proposal, along with four other proposals that had expired. The withdrawal of the proposal to list Bradshaw's lomatium was not based on biological considerations, but instead was the result of the administrative requirements of the Act prior to the 1982 Amendments.

An updated notice of review, published on December 15, 1980 (45 FR 82480), listed Bradshaw's lomatium in Category 1, which comprised taxa for which sufficient information was available to support the proposal of listing as endangered or threatened. On February 15, 1983, the Service published notice (48 FR 6752) of its finding that the petitioned listing of Bradshaw's lomatium may be warranted, in accordance with section 4(b)(3)(A) of the Act, as amended in 1982. On October 13, 1983, October 12, 1984, and again on October 11, 1985, the petition finding was made that listing of this taxon was warranted, but precluded by other pending listing actions, in accordance with section 4(b)(3)(B)(iii) of the Act (see 51 FR 42117; November 21, 1986). Such a finding requires that the petition be treated as a petition that is resubmitted, pursuant to section 4(b)(3)(C)(i) of the Act. Therefore, a new finding was made; the Service found that the petitioned action was warranted, and on November 21, 1986, published a proposal to list the species as endangered (51 FR 42116). Bradshaw's lomatium was added to the Federal List of Endangered and Threatened Plants (50 CFR 17.12) as an endangered species with the publication of a final rule in the Federal Register on September 30, 1988 (53 FR 38448)

A recovery plan for Bradshaw's lomatium (Service 1993, entire) was first made available to the public on April 8, 1993 (58 FR 18139, pp. 18225-18226). Subsequently, a new recovery plan was developed for Bradshaw's lomatium in conjunction with several other plant and animal species found in prairie ecosystems of western Oregon and southwestern Washington. The Recovery Plan for the Prairie Species of Western Oregon and Southwest Washington, hereafter referred to as “the recovery plan,” constitutes the revised recovery plan for Bradshaw's lomatium, and was made available to the public on June 29, 2010 (75 FR 37460).

On July 6, 2005, we published a notice (70 FR 38972) announcing that we were conducting a 5-year review of the status of Bradshaw's lomatium under section 4(c)(2)(A) of the Act. The 5-year review, completed on September 24, 2009 (Service 2009, entire), resulted in a recommendation that Bradshaw's lomatium remain listed as an endangered species.

On February 13, 2015, we published a notice (80 FR 8100) announcing that we were conducting a new 5-year review of the status of Bradshaw's lomatium, and requested that the public provide us any new information concerning this species. We developed the species status report for the purposes of conducting this 5-year review. This most recent assessment of the status of the species led us to recommend that Bradshaw's lomatium be removed from the List, because the species is considered to be recovered. Because it is our conclusion that Bradshaw's lomatium does not now meet the definition of either an endangered or a threatened species, as summarized here, we are proposing to remove Bradshaw's lomatium from the Federal List of Endangered and Threatened Plants (50 CFR 17.12).

Section 4(f) of the Act directs us to develop and implement recovery plans for the conservation and survival of endangered and threatened species unless we determine that such a plan will not promote the conservation of the species. Under section 4(f)(1)(B)(ii), recovery plans must, to the maximum extent practicable, include objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of section 4 of the Act, that the species be removed from the List. However, revisions to the List (adding, removing, or reclassifying a species) must reflect determinations made in accordance with sections 4(a)(1) and 4(b) of the Act. Section 4(a)(1) requires that the Secretary determine whether a species is endangered or threatened (or not) because of one or more of five threat factors. Section 4(b) of the Act requires that the determination be made “solely on the basis of the best scientific and commercial data available.”

While recovery plans provide important guidance to the Service, States, and other partners on methods of minimizing threats to listed species and measurable objectives against which to measure progress towards recovery, they are not regulatory documents and cannot substitute for the determinations and promulgation of regulations required under section 4(a)(1) of the Act. A decision to revise the status of a species or remove a species from the Federal List of Endangered and Threatened Plants (50 CFR 17.12) is ultimately based on an analysis of the best scientific and commercial data then available to determine whether a species is no longer an endangered species or a threatened species, regardless of whether that information differs from the recovery plan.

Recovery plans may be revised to address continuing or new threats to the species as new substantive information becomes available. The recovery plan recommends site-specific management actions that will help recover the species, identifies measurable criteria that set a trigger for eventual review of the species' listing status ( e.g., under a 5-year review conducted by the Service), and methods for monitoring recovery progress. Recovery plans are intended to establish goals for long-term conservation of listed species and define criteria that are designed to indicate when the threats facing a species have been removed or reduced to such an extent that the species may no longer need the protections of the Act.

There are many paths to accomplishing recovery of a species, and recovery may be achieved without all criteria being fully met. For example, one or more criteria may be exceeded while other criteria may not yet be met. In that instance, we may determine that the threats are minimized sufficiently to delist. In other cases, recovery opportunities may be discovered that were not known when the recovery plan was finalized. These opportunities may be used instead of methods identified in the recovery plan. Likewise, information on the species may be learned that was not known at the time the recovery plan was finalized. The new information may change the extent that criteria need to be met for recognizing recovery of the species. Recovery of a species is a dynamic process requiring adaptive management that may, or may not, fully follow the guidance provided in a recovery plan.

In 2010, we finalized the revised recovery plan for Bradshaw's lomatium (Service 2010). The recovery plan states that Bradshaw's lomatium could be considered for downlisting to threatened status when there are 12 populations and 60,000 plants distributed in such a way as to reflect the species' historical geographic distribution, when the number of individuals in the populations have been stable or increasing over a period of 10 years, when sites are managed to meet established habitat quality guidelines, when a substantial portion of the species' habitat is protected for conservation, and when populations are managed to ensure maintenance of habitat and to control threats. To achieve desired habitat quality, the recovery plan provides guidelines for a variety of prairie habitat metrics. These metrics include:

(1) Sites with populations of target species should have 50 percent or more relative cover of native vegetation;

(2) Woody vegetation should make up no more than 15 percent of the absolute vegetative cover, and woody species of concern should make up no more than 5 percent;

(3) Native prairie species richness should exceed 10 species, with at least 7 forbs and 1 bunchgrass; and

(4) No single nonnative should have more than 50 percent cover, and nonnative species of particular concern should have no greater than 5 percent cover.

The recovery plan states that Bradshaw's lomatium could be considered for delisting when there are 20 populations and 100,000 plants properly distributed, in addition to the criteria described above. To reflect the historical distribution of Bradshaw's lomatium, the species' range was divided into eight recovery zones (called Southwest Washington, Portland, Salem West, Salem East, Corvallis West, Corvallis East, Eugene West, and Eugene East), and targets for number of populations and number of plants for each zone were established based on historical presence (Service 2010, pp. IV-1-IV-6, IV-31-IV-34).

Two of the recovery zones (Portland and Salem West) are within the range of Bradshaw's lomatium, but do not have population targets for the species based on a lack of historical occurrence data. These recovery zones were nonetheless retained because if any populations of Bradshaw's lomatium were to be discovered or introduced within these zones, they could be considered as contributing to the recovery criteria for the species (under the category “additional populations”).

The expression of recovery criteria in terms of population abundance, numbers of populations, and distribution across recovery zones reflects a foundational principle of conservation biology: That there is a positive relationship between the relative viability of a species over time and the resiliency, redundancy, and representation of its constituent populations (Shaffer and Stein 2000, pp. 307-310; Wolf et al. 2015, entire). To look at it another way, extinction risk is generally reduced as a function of increased population abundance (resiliency), numbers of populations (redundancy), and distribution or geographic or genetic diversity (representation). The recovery criteria laid out in the recovery plan for Bradshaw's lomatium were, therefore, informative for our review of the status of the species, as that analysis leans upon these measures of viability to assess the current and future status of the species (Service 2018, pp. 1-2).

The downlisting criteria for number and distribution of populations and numbers of plants were intended to help identify the point at which imminent threats to the plant had been ameliorated so that the populations were no longer in immediate risk of extirpation; the delisting criteria for number and distribution of populations and numbers of plants were intended to identify the point at which the species was unlikely to become in danger of extinction. The estimated abundance of individuals in all populations has increased over time, from approximately 25,000 to 30,000 individuals in 11 populations at listing in 1988, to an estimated 11,277,614 individuals in at least 24 known populations at present (Service 2018, p. 39, updated based on Wilderman 2018, entire). These 24 populations occur on 71 distinct sites that are owned by a mix of Federal, State, and local governments; nongovernmental organizations (NGOs); and private citizens. Multiple sites are considered to be part of the same population when those sites are within a defined pollinator flight distance of 3 kilometers (km) (2 miles (mi)) of each other. The current population estimate is the combined count data from all sites; for some sites the plant count was the result of a full census (54 sites), while for others it was derived by visual estimate or calculated from count subsamples that were then extrapolated over the total area of the site (17 sites). The increase in known populations and number of plants over time is due to a combination of population augmentation and introductions, improved habitat management, and increased survey effort across the range of the species. Bradshaw's lomatium has been the focus of concentrated recovery efforts since it was listed in 1988. We now believe there are likely more than the recent grand total count of an estimated 11,277,614 individuals across the range of Bradshaw's lomatium because not all areas of suitable habitat within the range of the species have been surveyed, and recent visits to previously unsurveyed areas have resulted in the identification of formerly unknown populations ( e.g., Service 2018, p. 10).

In our species status report, we evaluated and ranked the resiliency of each population of Bradshaw's lomatium using the following criteria: (1) Population size, (2) current habitat conditions, (3) protection of the site from development, and (4) site management to restore and maintain appropriate habitat condition. Using these criteria, each population was given a rank of high, moderate, or low condition (Service 2018, pp. 26-30). The resiliency score for each population incorporates the degree to which the primary threats to the species have been addressed at each site as well as recovery criteria (population size and habitat quality), site protection (addressing habitat loss), and site management (addressing woody encroachment and invasive species). For details on evaluation and ranking of population condition, see the species status report (Service 2018, pp. 26-43).

The table below summarizes our current knowledge of the abundance and distribution of Bradshaw's lomatium relative to the downlisting and delisting criteria presented in the recovery plan for the species (from Service 2018, p. 39, updated based on Wilderman 2018, entire). Because the table below summarizes only the abundance and distribution data for the species, the information in the table must be considered in conjunction with the five-factor analysis of threats to arrive at the status determination for Bradshaw's lomatium.

Based on the most recent count, the grand total number of known plants is 11,277,614 (this total includes plants from populations with fewer than 200 individuals, which we did not count as contributing toward recovery). Of this total, an estimated 10,790,658 occur in a single population in southwestern Washington. The other approximately 486,956 plants are within 23 populations in Oregon. Considering only the populations in moderate or high condition, and with more than 200 plants ( i.e., those we are counting toward recovery and presented in the table above), we estimate there are 485,595 plants within the 23 populations in Oregon. These populations are distributed from southeast of Salem, Oregon south to Creswell, Oregon, both east and west of the Willamette River. The greatest density of populations occurs in the southern portion of the Willamette Valley near Eugene, Oregon.

Therefore, the most recent counts of Bradshaw's lomatium identify nearly 500,000 individuals in 23 known populations distributed across the historical range of the species in Oregon, and distributed among 69 known sites under various types of land ownership. We considered the abundance and distribution of Bradshaw's lomatium without the roughly 10.8 million individuals concentrated in a single population (made up of 2 sites) in southwestern Washington to ensure our evaluation considered the abundance and distribution of the species across its entire range and to ensure our evaluation was not unduly influenced by the single large population in southwestern Washington. Of the 71 known sites, 51 are in public ownership, are within a public right-of-way, or are owned by a conservation-oriented NGO. Of the 20 remaining sites, 9 are under conservation easement or are enrolled in the Service's Partners for Fish and Wildlife Program (Service 2018, pp. 30-35, 36, 38, Appendix A). The remaining 11 sites are on private lands and are not currently under any formal protection agreements.

The figure below shows the results of this assessment across the range of the species. Of the 24 known populations, 4 are in low condition, 9 are in moderate condition, 10 are in high condition, and 1 is in unknown condition due to the lack of data (Service 2018, pp. 36-39). Populations occur in all recovery zones that have population goals. As noted above, the Portland and Salem West Recovery Zones contain no known current populations, were not assigned specific targets by the Recovery Team, and have no documented historical occurrences of the species within them.

Based on this information, we conclude Bradshaw's lomatium is much more numerous than at the time of listing and is distributed throughout its known historical range. Across the 23 populations in Oregon, greater than 99 percent of known Bradshaw's lomatium plants are found on sites receiving some degree of protection from development such as public lands, conservancy lands, or private lands with conservation easements (Service 2018, Appendix A). The single largest population of the species occurs in southwestern Washington, and is composed of individuals from two sites. The vast majority of plants in the southwestern Washington population occur on private property that is not under some type of protection, but the site is consistently managed in a manner conducive to supporting Bradshaw's lomatium. The other portion of the population in southwestern Washington contains approximately 658 plants, and this site is owned by the Washington Department of Natural Resources (WDNR). The WDNR has been actively protecting, managing, and augmenting this smaller portion of the southwestern Washington population, and they are currently working to further expand protection at this site. Furthermore, WDNR is working to conserve the sizeable Bradshaw's lomatium site that is on private land.

Due to ongoing threats from woody encroachment and the spread of nonnative invasive plants, sites containing Bradshaw's lomatium require regular management to maintain the open prairie conditions that support robust populations. Management activities may include, but are not limited to, herbicide application, mowing, and prescribed fire. Although guarantee of management into perpetuity exceeds the requirements of the Act in evaluating whether a species meets the statutory definition of endangered or threatened, it is necessary to evaluate whether current and expected future management is sufficient to maintain resilient populations of Bradshaw's lomatium into the foreseeable future. Across the range of Bradshaw's lomatium, 53 of 71 sites (75 percent) receive some form of management as described above, accounting for greater than 99 percent of known Bradshaw's lomatium plants. Of the sites with some form of management, 41 sites (58 percent of total sites) have a management plan with goals for the conservation of Bradshaw's lomatium, or with goals for maintenance of the wet prairie habitat upon which this species depends. Sites with management plans include those owned by the U.S. Army Corps of Engineers, Bureau of Land Management, U.S. Fish and Wildlife Service, The Nature Conservancy, and privately owned sites covered by the Natural Resources Conservation Service's Wetland Reserve Program (Service 2018, pp. 30-35, Appendix A).

These and other data that we analyzed indicate that most threats identified at listing and in the recovery plan are reduced in areas occupied by Bradshaw's lomatium. The status of the species has improved primarily due to: (1) Discovery of previously unknown populations; (2) reestablishment and augmentation of populations over the 30 years since the species was listed; (3) improvement in habitat management; and (4) an increase in protection from development.

Section 4 of the Act and its implementing regulations (50 CFR part 424) set forth the procedures for listing species, reclassifying species, or removing species from listed status. The term “species” includes “any subspecies of fish or wildlife or plants, and any distinct population segment [DPS] of any species of vertebrate fish or wildlife which interbreeds when mature” (16 U.S.C. 1532(16)). As previously stated, a species may be determined to be an endangered species or threatened species because of any one or a combination of the five factors described in section 4(a)(1) of the Act. We may consider listing a species due to one or more of the following: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We must consider these same five factors in delisting (removal from the Federal Lists of Endangered and Threatened Wildlife and Plants) or downlisting (reclassification from endangered to threatened) a species.

For species that are already listed as endangered or threatened, this analysis of threats is an evaluation of both the threats currently facing the species and the threats that are reasonably likely to affect the species in the foreseeable future following the delisting or downlisting and the removal of the Act's protections. A recovered species is one that no longer meets the Act's definition of endangered or threatened. A species is “endangered” for purposes of the Act if it is in danger of extinction throughout all or a “significant portion of its range” and is “threatened” if it is likely to become an endangered species within the foreseeable future throughout all or a “significant portion of its range.” The word “range” in the “significant portion of its range” phrase refers to the range in which the species currently exists. For the purposes of this analysis, we first evaluate the status of Bradshaw's lomatium throughout all of its range, then consider whether this plant is in danger of extinction or likely to become so in any significant portion of its range within the foreseeable future.

The Act does not define the term “foreseeable future.” Our implementing regulations at 50 CFR 424.11(d) set forth a framework within which we evaluate the foreseeable future on a case-by-case basis. The term foreseeable future extends only so far into the future as the Service can reasonably determine that both the future threats and the species' responses to those threats are likely. We consider 25 to 50 years to be a reasonable period of time within which reliable predictions can be made for potential stressors and responses for Bradshaw's lomatium. This period of time is sufficient to observe population trends for the species and captures the terms of many of the management plans that are in effect at Bradshaw's lomatium sites; it also provides a reasonable timeframe for the assessment of the effects of climate change. Although information exists regarding potential impacts from climate change beyond a 50-year timeframe, the projections depend on an increasing number of assumptions, and thus become more uncertain with increasingly long timeframes. We, therefore, use a maximum timeframe of 50 years to provide the best balance of scope of impacts considered versus the certainty of those impacts being realized.

In considering what factors might constitute threats, we must look beyond the exposure of the species to a particular factor to evaluate whether the species may respond to the factor in a way that causes actual impacts to the species. If there is exposure to a factor and the species responds negatively, the factor may be a threat, and during the status review, we attempt to determine the significance of a threat. The threat is significant if it drives or contributes to the risk of extinction of the species, such that the species warrants listing as endangered or threatened as those terms are defined by the Act. However, the identification of factors that could impact a species negatively may not be sufficient to compel a finding that the species warrants listing. The information must include evidence sufficient to suggest that the potential threat is likely to materialize and that it has the capacity ( i.e., it should be of sufficient magnitude and extent) to affect the species' status such that it meets the definition of endangered or threatened under the Act.

At the time of listing, the primary threats to Bradshaw's lomatium were habitat loss due to land use conversion for agriculture or urbanization and the invasion of prairie vegetation by various woody plant species (Factor A) (53 FR 38449-38450; September 30, 1988). The listing rule did not find that overutilization for commercial, recreational, scientific, or educational purposes (Factor B) posed a threat to Bradshaw's lomatium. The listing rule did note that several parasitic organisms (a fungus, spittle bug, and two aphids) could potentially have negative effects on smaller, stressed populations of the plant (but not the species as a whole; Factor C) and questioned whether inbreeding depression might pose a threat to the species since the populations known at the time appeared to be small and isolated from one another (Factor E). The rule noted that further study was required to determine the significance of these putative threat factors. Finally, the listing rule noted that State and Federal regulations existing at the time did not adequately protect the plant from habitat loss or other potential threats (Factor D) (53 FR 38450; September 30, 1988). By the time the recovery plan was developed in 1993, these same threats were still considered relevant (Service 1993, p. 12). There are three potential threats that were not known or considered at the time of listing: (1) Competition from nonnative, invasive plant species (Factor A); (2) potential impacts resulting from the effects of climate change (Factor E); and (3) predation by voles ( Microtus spp.) (Factor C), which has been observed within Bradshaw's lomatium sites. Subsequently, we have conducted a 5-year status review based on the species status report for Bradshaw's lomatium that includes an analysis of all factors known to affect the viability of the species (Service 2018, entire).

As discussed in our 2018 species status report, the threat of habitat loss from land conversion for agriculture and urbanization (Factor A) has decreased since the time of listing due to land protection efforts. Although a few privately owned sites are still at risk, land use conversion is no longer considered a significant threat to the viability of Bradshaw's lomatium due to the number of sites now receiving some degree of protection from development (Service 2018, pp. 36-39, Appendix A). As described above, in Oregon, which supports 23 of the 24 known populations of the species, greater than 99 percent of known Bradshaw's lomatium plants occur on sites protected through public or NGO ownership, through designation as a right-of-way, or by conservation easements on private lands. In Washington, one of two sites that support Bradshaw's lomatium is owned by WDNR, and the State is actively working toward the conservation of the very large adjacent site that supports the majority of known individuals of the species. As the threat posed to Bradshaw's lomatium from habitat loss is no longer considered significant, we additionally no longer consider State or Federal protections to be inadequate to address this threat (Factor D).

The present threat to Bradshaw's lomatium from modification of habitat due to invasion of prairies by nonnative, invasive plants and by woody species (Factor A) has been reduced in many populations due to active habitat management using herbicides, mowing, and prescribed fire, but ongoing habitat management is required to maintain these improvements. As noted above, across the range of Bradshaw's lomatium, 75 percent of the known sites receive active management that benefits the species, and 58 percent of total sites have a management plan in place with goals for the conservation of Bradshaw's lomatium, or for maintenance of the wet prairie habitat upon which it depends (Service 2018, pp. 36-39, Appendix A). Based on the high proportion of sites protected or managed, the history of positive management observed to date, and ongoing efforts to further restore and protect wet prairie habitats, we have confidence that management of Bradshaw's lomatium sites will continue to provide adequate protection to the species in the long term. We found no evidence that negative impacts due to parasitic organisms (Factor C) constitute a threat to the viability of the Bradshaw's lomatium. Predation by voles (Factor C) appears to vary year to year, and can substantially reduce aboveground biomass and reproduction in years when vole abundance is high. However, the effect on populations is believed to be minimal over time as long as there is sufficient time for Bradshaw's lomatium to regenerate taproot reserves between vole outbreaks (Drew 2000, pp. 54-55), and no consistent long-term declines attributable to vole predation have been reported (Service 2018, p. 20).

Concerns over the possibility of inbreeding depression (Factor E) expressed at the time of listing are now reduced due to a subsequent study indicating that overall genetic diversity in Bradshaw's lomatium is relatively high for a rare species (Gitzendanner and Soltis 2001, pp. 352-353), and is greater than that found in other rare Lomatium species (Gitzendanner and Soltis 2000, p. 787), though the most disjunct population in southwestern Washington showed relatively lower genetic diversity than less geographically isolated populations (Gitzendanner and Soltis 2001, p. 353). The threat of inbreeding depression is further considered reduced since we now understand Bradshaw's lomatium to be primarily an outcrossing species (which promotes increased genetic diversity), rather than an obligate self-pollinating species as was believed at the time of listing (Service 2018, pp. 7, 20).

The potential threat posed to Bradshaw's lomatium from the effects of climate change (Factor E) is difficult to predict. The primary threat to the species from the effects of climate change is likely reduced moisture availability due to warmer temperatures and alterations to precipitation patterns resulting in increased evapotranspiration. The vulnerability of Bradshaw's lomatium to the effects of climate change, assessed over a range of potential future emissions scenarios, has been ranked as anywhere from low to moderate (Steel et al. 2011, pp. 25, 89) to highly vulnerable (Kaye et al. 2013, p. 20). Possible effects of climate change on Bradshaw's lomatium include a shift toward life cycle completion earlier in the growing season in response to warmer temperatures and earlier drying, and reduced population sizes due to some portions of habitat drying too much to support Bradshaw's lomatium populations. We assessed the potential impacts of climate change on Bradshaw's lomatium projected out over a period up to 50 years in the future. Published assessments provide only qualitative appraisals of the potential response of Bradshaw's lomatium to the effects of climate change; therefore, to be conservative in our analysis, we evaluated a “worst case” future scenario in which all populations would be reduced in size by 50 percent. Even in the face of such a severe population reduction, the species is anticipated to remain viable as indicated by appreciable levels of resiliency, redundancy, and representation. We estimated that populations currently in low condition or with very low abundance may be extirpated due to the combined effects of climate change impacts and stochastic events; this translated to an estimated loss of up to five small populations, with other populations reduced in size. However, even with a presumed 50 percent reduction in abundance, at least 14 to 16 populations of Bradshaw's lomatium in moderate or high condition are expected to persist on the landscape with ongoing management. We do not anticipate any significant effect on representation, that is, the ability of the species to adapt to changing environmental conditions over time (Service 2018, pp. 42-46).

When multiple stressors co-occur, one may exacerbate the effects of the other, leading to effects not accounted for when each stressor is analyzed individually. The full impact of these synergistic effects may be observed within a short period of time, or may take many years before they are noticeable. For example, high levels of predation on Bradshaw's lomatium during vole outbreaks can cause large temporary population declines, but are not generally considered a significant threat to long-term viability; populations that are relatively large and well distributed should be able to withstand such naturally occurring events. However, the relative impact of predation by voles may be intensified when outbreaks occur in conjunction with other factors that may lessen the resiliency of Bradshaw's lomatium populations, such as prolonged woody species encroachment; extensive nonnative, invasive plant infestations; or possible hydrological alterations resulting from the effects of climate change.

Although the types, magnitude, or extent of potential cumulative impacts are difficult to predict, we are not aware of any combination of factors that are likely to co-occur with significant negative consequences for the species. We anticipate that any negative consequence of co-occurring threats will be successfully addressed through the same active management actions that have contributed to the ongoing recovery of Bradshaw's lomatium and that are expected to continue into the future. The best scientific and commercial data available indicate that Bradshaw's lomatium is composed of multiple populations, primarily in moderate to high condition, which are sufficiently resilient, well distributed, protected, and managed such that they will be robust to any potential cumulative effects to which they may be exposed.

Overall, we conclude that under current conditions, most populations of Bradshaw's lomatium are resilient, because they have abundant numbers of individuals. There are redundant populations of Bradshaw's lomatium, meaning that multiple populations occur in most recovery zones, indicating that the species has the ability to minimize potential loss from catastrophic events. The concern at the time of listing about a possible genetic bottleneck has been alleviated by genetic studies demonstrating that Bradshaw's lomatium has relatively high genetic diversity for a rare species. Also, with populations distributed across the known historical range of the species (Service 2018, p. 40), Bradshaw's lomatium has likely retained much of its adaptive capacity ( i.e., representation). We also considered the potential future conditions of Bradshaw's lomatium, taking into account the current condition and additional stressors not considered at the time of recovery plan development ( e.g., the effects of climate change). Projecting 25 to 50 years into the future, under a conservative estimate that conditions could potentially worsen such that all existing populations are reduced by half, the species would retain its resiliency and redundancy. With an estimated 14 to 16 populations in moderate or high condition expected to persist on the landscape with ongoing management; representation was not anticipated to be affected (Service 2018, p. 44). As noted earlier, the degree to which threats to the species have been successfully addressed is incorporated into the evaluation of population resiliency at each site ( i.e., site protection and management actions were considered in the scoring of each population's current condition; Service 2018, p. 28). The continuation of these conservation measures was an assumption of our projection.

See the species status report (Service 2018, entire) for a more detailed discussion of our evaluation of the biological status of the Bradshaw's lomatium and the influences that may affect its continued existence. Our conclusions are based upon the best available scientific and commercial data and the expert opinions of the species status assessment team members.

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

After evaluating threats to the species under the section 4(a)(1) factors, we found that the known range of Bradshaw's lomatium was considered dramatically reduced when we listed it as an endangered species in 1988, and we estimated that there were 11 small populations that included a total of roughly 25,000 to 30,000 individuals. In addition, the species faced threats from habitat loss due to land conversion for agriculture and urbanization, as well as natural succession to woody species dominance due to loss of historical disturbance regimes. As such, it was perceived to be upon the brink of extinction. Bradshaw's lomatium has been the subject of intensive recovery efforts since it was listed under the Act 30 years ago, and the discovery of new, previously unknown populations; success in augmentation and habitat restoration and management efforts; and the protection of Bradshaw's lomatium populations and habitats on public lands and on private lands through conservation easements and management agreements with NGOs and other parties have led to a significant reduction in threats and improvement in the status of the species since that time.

Recovery goals for delisting Bradshaw's lomatium were set at a minimum of 20 populations with a total of 100,000 individual plants distributed across its historical range. Under current conditions, there are 24 known populations of Bradshaw's lomatium distributed throughout the species' historical range; if we consider only those populations in high or moderate condition and containing at least 200 individuals as contributing to recovery, there are 17 such populations throughout the range of the species (see table above). Considering only those 17 populations in high or moderate condition and with greater than 200 plants, the most recent counts demonstrate there are an estimated 486,253 individuals known distributed throughout the historical range of the species (our evaluation does not include the southwestern Washington population to ensure our evaluation considered the abundance and distribution of the species across its entire range and that it was not unduly influenced by this single large population). Our analysis of current population condition on the basis of plant abundance, habitat quality, management, and protection from development resulted in rankings of 10 populations in high condition overall, 9 populations in moderate condition, and 4 populations in low condition. Therefore, we are significantly less concerned about small population sizes or limited distribution of the species than we were at the time of listing. The increase in known populations is due in large part to increased survey efforts and incidental discovery of more occupied habitat, leaving open the potential of finding even more populations of Bradshaw's lomatium in the future. Acquisition by conservation NGOs, or enrollment into conservation easement programs, of sites containing Bradshaw's lomatium populations has substantially reduced the risk of habitat and population losses due to land use conversion (Factor A). In addition, population augmentation or introduction, combined with ongoing active management of woody encroachment and of nonnative, invasive plant infestations, has ameliorated the threat posed by these processes (Factor A) and increased the resilience of many Bradshaw's lomatium populations on protected sites. Other potential threats identified at the time of listing have either never materialized (parasitism by other organisms (Factor C) or negative effects of inbreeding depression (Factor E)) or have been addressed through other means ( i.e., habitat protections and management, addressing Factor D).

Since listing, we have become aware of the potential for the effects of climate change (Factor E) to affect organisms and ecosystems, including potentially Bradshaw's lomatium. We considered the potential consequences of climate change and evaluated a future scenario with up to a 50 percent reduction in the size of all known populations across the range of the species. Even in the face of such a severe population reduction, the species retained appreciable levels of resiliency, redundancy, and representation such that we did not consider the effects of climate change to pose a significant threat (Service 2018, pp. 42-46). To be conservative, our analysis of future conditions did not consider that ongoing efforts to improve population sizes and habitat quality have the potential to further increase the number of resilient populations of Bradshaw's lomatium. Many stressors to the species are being addressed through habitat management and population augmentation, but ongoing management is necessary to maintain resilient populations throughout the species' range.

In sum, significant impacts at the time of listing such as habitat loss due to land use conversion and woody encroachment that could have resulted in the extirpation of all or parts of populations have been either eliminated or reduced since listing. An assessment of likely future conditions, including the status of known stressors, management trends, and possible impacts of climate change, finds that although populations may decline in abundance, at least 14 to 16 populations across the range of the species are expected to maintain high or moderate resiliency over a timeframe of 25 to 50 years into the future (Service 2018, pp. 42-46). We, therefore, conclude that the previously recognized impacts to Bradshaw's lomatium from present or threatened destruction, modification, or curtailment of its habitat or range (specifically, habitat development for agriculture or urbanization and invasion of prairie vegetation by various woody plant species) (Factor A); disease or predation (specifically, parasitism by insects and predation by voles) (Factor C); the inadequacy of existing regulatory mechanisms (Factor D); and other natural or manmade factors affecting its continued existence (specifically, genetic isolation, inbreeding depression, and the effects of climate change) (Factor E) do not rise to a level of significance, either individually or in combination, such that the species is in danger of extinction now or likely to become so within the foreseeable future. Overutilization for commercial, recreational, scientific, or educational purposes (Factor B) was not a factor in listing and based on the best available information, we conclude that it does not constitute a threat to the Bradshaw's lomatium now or in the foreseeable future. The Service recognizes that woody encroachment and nonnative, invasive plant species are stressors with ongoing impacts to Bradshaw's lomatium, but finds that current and expected trends in site protection and habitat management are sufficient to prevent these stressors from constituting a threat to the continued existence of the species. Thus, after assessing the best available information, we conclude that Bradshaw's lomatium is not in danger of extinction or likely to become so within the foreseeable future throughout all of its range.

Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range (SPR). Where the best available information allows the Services to determine a status for the species rangewide, that determination should be given conclusive weight because a rangewide determination of status more accurately reflects the species' degree of imperilment and better promotes the purposes of the Act. Under this reading, we should first consider whether the species warrants listing “throughout all” of its range and proceed to conduct a “significant portion of its range” analysis if, and only if, a species does not qualify for listing as either an endangered or a threatened species according to the “throughout all” language.

Having determined that Bradshaw's lomatium is not in danger of extinction or likely to become so in the foreseeable future throughout all of its range, we now consider whether it may be in danger of extinction or likely to become so in the foreseeable future in an SPR. The range of a species can theoretically be divided into portions in an infinite number of ways, so we first screen the potential portions of the species' range to determine if there are any portions that warrant further consideration. To do the “screening” analysis, we ask whether there are portions of the species' range for which there is substantial information indicating that: (1) The portion may be significant; and, (2) the species may be, in that portion, either in danger of extinction or likely to become so in the foreseeable future. For a particular portion, if we cannot answer both questions in the affirmative, then that portion does not warrant further consideration and the species does not warrant listing because of its status in that portion of its range. We emphasize that answering both of these questions in the affirmative is not a determination that the species is in danger of extinction or likely to become so in the foreseeable future throughout a significant portion of its range—rather, it is a step in determining whether a more-detailed analysis of the issue is required.

If we answer these questions in the affirmative, we then conduct a more thorough analysis to determine whether the portion does indeed meet both of the SPR prongs: (1) The portion is significant and (2) the species is, in that portion, either in danger of extinction or likely to become so in the foreseeable future. Confirmation that a portion does indeed meet one of these prongs does not create a presumption, prejudgment, or other determination as to whether the species is an endangered species or threatened species. Rather, we must then undertake a more detailed analysis of the other prong to make that determination. Only if the portion does indeed meet both SPR prongs would the species warrant listing because of its status in a significant portion of its range.

At both stages in this process—the stage of screening potential portions to identify any portions that warrant further consideration and the stage of undertaking the more detailed analysis of any portions that do warrant further consideration—it might be more efficient for us to address the “significance” question or the “status” question first. Our selection of which question to address first for a particular portion depends on the biology of the species, its range, and the threats it faces. Regardless of which question we address first, if we reach a negative answer with respect to the first question that we address, we do not need to evaluate the second question for that portion of the species' range.

The Service's most-recent definition of “significant” has been invalidated by the courts (for example, Desert Survivors v. Dep't of the Interior, No. 16-cv-01165-JCS (N.D. Cal. Aug. 24, 2018)). Therefore, we determined whether the populations in Oregon and Washington could be significant under any reasonable definition of “significant.” To do this, we evaluated whether these populations taken together may be biologically important in terms of the resiliency, redundancy, or representation of the species.

We identified the population of Bradshaw's lomatium in southwestern Washington as a potential portion of the range warranting further detailed consideration due to its potential contributions to the resiliency, redundancy, and representation of the species. This population is the northernmost known population of the species (contributing to representation), and is separated from the majority of the range by the Columbia River and a large, historically unoccupied area in northern Oregon (contributing to redundancy). It is also the largest known population of Bradshaw's lomatium (contributing to resiliency).

The southwestern Washington population of Bradshaw's lomatium is composed of individuals occurring at two separate sites in close proximity to each other. The smaller of the two sites contained an estimated 658 Bradshaw's lomatium individuals in 2018 (Wilderman 2018, entire), and is owned and managed by the WDNR. The WDNR manages this site with an emphasis on habitat management, population augmentation, and monitoring to benefit Bradshaw's lomatium. The larger site occurs on the rough of a privately owned golf course, and contained approximately 10.8 million Bradshaw's lomatium plants at the most recent survey in 2010 (Service 2018, p. 57). Although a count was not done, a recent visit by Service biologists confirmed that expansive areas of suitable habitat remain occupied by Bradshaw's lomatium, and there was no sign of any obvious substantial stressors to the species (Brumbelow 2018, pers. obs.). Although not managed specifically for Bradshaw's lomatium, ongoing management to maintain open conditions in the rough area, primarily through mowing, appears to benefit the species, which is clearly robust. Managers of the golf course have demonstrated interest in the conservation of Bradshaw's lomatium by placing signs, which highlight the presence of a listed species, along pathways. Although the southwestern Washington population of Bradshaw's lomatium is the largest known population of the species, genetic diversity at the smaller WDNR site is lower than other sampled sites for this species (Gitzendanner and Soltis, 2001 p. 353); genetic information is not available specific to the larger site.

Having identified the southwestern Washington population as a portion of the range of Bradshaw's lomatium that warrants further consideration, we now analyze whether the species is in danger of extinction or likely to become so within the foreseeable future in this portion.

We determine the status of the species in a portion of its range the same way we determine the status of a species throughout all of its range. We consider whether threats are reasonably likely to affect the species in that portion to such an extent that the species is in danger of extinction or likely to become so in the foreseeable future in that portion.

Of the two sites that comprise the sole population of Bradshaw's lomatium in southwestern Washington, one is on the Lacamas Prairie Natural Area, a preserve owned and managed by the WDNR. Due to this ownership, there is currently no risk of loss of habitat due to development, nor is there any reason to believe this area would be at risk of such a loss within the foreseeable future. Habitat quality at the site is considered high, and the site is managed specifically for prairie habitat conditions that support Bradshaw's lomatium (Service 2018, pp. 29, 57), using a combination of manual invasive species removal, herbicide treatments, mowing, and prescribed burning (Abbruzzese 2017, entire). The other site is located on a privately owned golf course, and has high-quality habitat. Current management at the site, as in past years, supports open wet prairie conditions (Service 2018, pp. 29, 57), primarily through mowing. Although no formal protections are in place that would prevent future development, we have no information to indicate that it is likely the site would be developed or that habitat management will change in any way that would substantially impact Bradshaw's lomatium. In addition, the areas occupied by Bradshaw's lomatium are within wetlands, which may have protections from development under State or Federal law. Based on the current protections of the Lacamas Prairie Natural Area, the lack of any present threat of destruction or degradation at the privately owned golf course site, and ongoing appropriate management at both sites, we have confidence that habitat at these sites will continue to support Bradshaw's lomatium for the foreseeable future. Thus the present or threatened destruction, modification, or curtailment of habitat (Factor A) is not a concern for Bradshaw's lomatium in this portion of its range, now or within the foreseeable future.

We have no information to suggest that overutilization for commercial, recreational, scientific, or educational purposes poses a threat to Bradshaw's lomatium in any part of its range, including southwestern Washington, now or in the foreseeable future (Factor B).

We found no evidence that negative impacts due to parasitic organisms constitute a threat to the viability of Bradshaw's lomatium in any part of its range, including southwestern Washington, now or in the foreseeable future. Predation by voles appears to vary year to year, and can substantially reduce aboveground biomass and reproduction of Bradshaw's lomatium in years when vole abundance is high. However, the effect on populations is believed to be minimal over time, as long as there is sufficient time for Bradshaw's lomatium to regenerate taproot reserves between vole outbreaks (Drew 2000, pp. 54-55), and no consistent long-term declines attributable to vole predation have been reported (Service 2018, p. 20). Predation by voles has not been previously reported in either site within the southwestern Washington population of Bradshaw's lomatium. We, therefore, have no information to indicate that predation is a threat to Bradshaw's lomatium in this portion of its range, now or within the foreseeable future (Factor C).

We do not consider State or Federal protections to be inadequate to address the loss of Bradshaw's lomatium habitat in southwestern Washington, now or within the foreseeable future (Factor D). As described above, we do not consider habitat loss to be a threat to the species in this portion of its range. Of the two known sites containing Bradshaw's lomatium in this portion of the range, one is protected through ownership by the WDNR. Although the second, larger site lacks formal protection, it faces no currently known threat of habitat loss or degradation, either now or within the foreseeable future. Additionally, the WDNR continues to make efforts to provide additional conservation at the site. Bradshaw's lomatium remains listed as endangered by the State of Washington.

Concerns over the possibility of inbreeding depression expressed at the time of listing are now reduced due to a subsequent study indicating that overall genetic diversity in Bradshaw's lomatium is relatively high for a rare species (Gitzendanner and Soltis 2001, pp. 352-353), and is greater than that found in other rare Lomatium species (Gitzendanner and Soltis 2000, p. 787). Although the most disjunct population in southwestern Washington showed relatively lower genetic diversity than less geographically isolated populations (Gitzendanner and Soltis 2001, p. 353), the threat of inbreeding depression is considered reduced, as we now understand Bradshaw's lomatium to be primarily an outcrossing species (which promotes increased genetic diversity), rather than an obligate self-pollinating species as was believed at the time of listing (Service 2018, pp. 7, 20).

In our species status report, we assessed the potential impacts of climate change on Bradshaw's lomatium projected up to 50 years in the future, and conservatively evaluated a future scenario in which the potential negative effects of climate change were such that all populations were reduced in size by up to 50 percent. Such an impact would reduce population numbers at Lacamas Prairie Natural Area to approximately 329 individuals. Although substantial, such losses are not expected to cause extirpation of the species from this site, especially as beneficial management actions targeted specifically at the preservation of wetland prairie habitat are anticipated to continue at this preserve area. At the privately owned golf course site, a 50 percent reduction from the most recently estimated population size would result in approximately 5.4 million plants at this site, which would still represent by far the largest known population of the species. We, therefore, have no information to indicate that other natural or manmade factors pose a threat to the continued existence of Bradshaw's lomatium (Factor E), now or within the foreseeable future.

Although the types, magnitude, or extent of potential cumulative impacts are difficult to predict, we are not aware of any combination of factors that are likely to co-occur with significant negative consequences for the species within the southwestern Washington portion of its range. We anticipate that any negative consequence of co-occurring threats will be successfully addressed through the same active management actions that have contributed to the ongoing recovery of Bradshaw's lomatium and that are expected to continue into the future.

Therefore, we have determined that Bradshaw's lomatium is not in danger of extinction, or likely to become so in the foreseeable future, within a significant portion of its range. Our approach to analyzing SPR in this determination is consistent with the court's holding in Desert Survivors v. Department of the Interior, No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018).

Our review of the best available scientific and commercial information indicates that Bradshaw's lomatium is not in danger of extinction or likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. Therefore, we are removing Bradshaw's lomatium from the Federal List of Endangered and Threatened Plants at 50 CFR 17.12(h) due to recovery.

This proposed rule, if made final, would revise 50 CFR 17.12(h) by removing Bradshaw's lomatium from the Federal List of Endangered and Threatened Plants. The prohibitions and conservation measures provided by the Act, particularly through sections 7 and 9, would no longer apply to this species. Federal agencies would no longer be required to consult with the Service under section 7 of the Act in the event that activities they authorize, fund, or carry out may affect Bradshaw's lomatium. There is no critical habitat designated for this species, so there would be no effect to 50 CFR 17.96.

Section 4(g)(1) of the Act requires the Secretary of the Interior, through the Service and in cooperation with the States, to implement a monitoring program for not less than 5 years for all species that have been delisted due to recovery. The purpose of this requirement is to develop a program that detects the failure of any delisted species to sustain itself without the protections of the Act. If, at any time during the monitoring period, data indicate that the protective status under the Act should be reinstated, we can initiate listing procedures, including, if appropriate, emergency listing.

We propose to delist Bradshaw's lomatium based on new information that has become available as well as recovery actions taken. Because delisting would be due to recovery, we have prepared a draft post-delisting monitoring plan. The draft post-delisting monitoring plan discusses the current status of the species and describes the methods proposed for monitoring if the species is removed from the Federal List of Endangered and Threatened Plants. Monitoring would take place for a minimum of 5 years. It is our intent to work with our partners to maintain the recovered status of Bradshaw's lomatium. We seek public and peer review comments on the draft post-delisting monitoring plan, including its objectives and procedures (see Public Comments, above), with the publication of this proposed rule.

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

(a) Be logically organized;

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

(c) Use clear language rather than jargon;

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

(e) Use lists and tables wherever possible.

We determined we do not need to prepare an environmental assessment or an environmental impact statement, as defined under the authority of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ), in connection with regulations adopted pursuant to section 4(a) of the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

In accordance with the President's memorandum of April 29, 1994, Government-to-Government Relations with Native American Tribal Governments (59 FR 22951), Executive Order 13175, and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that Tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Native American culture, and to make information available to Tribes.

We do not believe that any Tribes would be affected if we adopt this rule as proposed.

A complete list of all references cited in this proposed rule is available on the internet at http://www.regulations.gov under Docket No. FWS-R1-ES-2019-0013 or upon request from the State Supervisor, Oregon Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT ).

The primary authors of this proposed rule are the staff of the Oregon Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT ).

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

We want any final rule resulting from this proposal to be as accurate as possible. Therefore, we invite tribal and governmental agencies, the scientific community, industry, and other interested parties to submit comments or recommendations concerning any aspect of this proposed rule. Comments should be as specific as possible. We particularly seek comments concerning:

(1) Biological or ecological reasons why we should or should not reclassify June sucker from endangered to threatened on the List of Endangered and Threatened Wildlife ( i.e., “downlist” the species) under the Act.

(2) New biological or other relevant data concerning any threat (or lack thereof) to this species or any current or planned activities in the habitat or range that may impact the species.

(3) New information on any efforts by the State or other entities to protect or otherwise conserve June sucker.

(4) New information concerning the range, distribution, and population size or trends of this species.

(5) Information on activities that may warrant consideration in the rule issued under section 4(d) of the Act (16 U.S.C. 1531 et seq. ), including:

(a) Whether a provision should be added to the 4(d) rule that excepts take of June suckers resulting from educational or outreach activities that would benefit the conservation of June sucker.

(b) Additional provisions or information the Service may wish to consider for a 4(d) rule in order to conserve, recover, and manage the June sucker.

Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include. Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, may not meet the standard of information required by section 4(b)(1)(A) of the Act (16 U.S.C. 1531 et seq. ), which directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”

To issue a final rule to implement this proposed action, we will take into consideration all comments and any additional information we receive. Such communications may lead to a final rule that differs from this proposal. All comments, including commenters' names and addresses, if provided to us, will become part of the supporting record.

You may submit your comments and materials concerning the proposed rule by one of the methods listed in ADDRESSES . Comments must be submitted to http://www.regulations.gov before 11:59 p.m. (Eastern Time) on the date specified in DATES .

We will post your entire comment--including your personal identifying information--on http://www.regulations.gov . If you provide personal identifying information in your comment, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so.

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours at the U.S. Fish and Wildlife Service, Utah Ecological Services Field Office. (See FOR FURTHER INFORMATION CONTACT ).

In accordance with our policy, “Notice of Interagency Cooperative Policy for Peer Review in Endangered Species Act Activities,” which was published on July 1, 1994 (59 FR 34270) and our August 22, 2016, Director's Memorandum “Peer Review Process,” we will seek the expert opinion of at least three appropriate and independent specialists regarding scientific data and interpretations contained in this proposed rule. We will send copies of this proposed rule to the peer reviewers immediately following publication in the Federal Register . We will ensure that the opinions of peer reviewers are objective and unbiased by following the guidelines set forth in the Director's Memo, which updates and clarifies Service policy on peer review (U.S. Fish and Wildlife Service 2016). The purpose of such review is to ensure that our decisions are based on scientifically sound data, assumptions, and analysis. Accordingly, our final decision may differ from this proposal.

Section 4(b)(5)(E) of the Act provides for one or more public hearings on this proposed rule, if requested. We must receive requests for public hearings, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by the date shown in DATES. We will schedule public hearings on this proposal, if any are requested, and places of those hearings, as well as how to obtain reasonable accommodations, in the Federal Register at least 15 days before the first hearing.

On April 12, 1982, the Desert Fishes Council petitioned us to list 17 fishes, including the June sucker. On December 20, 1982, we included the June sucker in a notice of review in the Federal Register (47 FR 58454). On June 14, 1983, we published our finding that the petition from the Desert Fishes Council contained substantial information for us to consider the June sucker for listing (48 FR 27273).

On July 2, 1984, we proposed the June sucker for listing as endangered under the Act with proposed critical habitat (49 FR 27183). On March 31, 1986 (51 FR 10851), we published the final rule listing June sucker as an endangered species and designating critical habit comprising the lower 4.9 miles (mi) (7.8 kilometers (km)) of the Provo River in Utah County, Utah.

On June 25, 1999, we finalized a recovery plan for the June sucker (Service 1999, entire). On November 13, 2001, we published a notice in the Federal Register formally declaring our intention to participate in the multi-agency June Sucker Recovery Implementation Program (JSRIP) in partnership with the U.S. Bureau of Reclamation (USBR), Utah Reclamation Mitigation and Conservation Commission (URMCC), the Department of the Interior (DOI), State of Utah Department of Natural Resources (UDNR), the Central Utah Water Conservancy District (CUWCD), Provo River Water Users Association, Provo Reservoir Water Users Company, and outdoor interest groups (66 FR 56840). The JSRIP was designed to implement recovery actions for the endangered June sucker and facilitate resolution of conflicts associated with June sucker recovery in the Utah Lake and Provo River basins in Utah. We have participated in the JSRIP since this time and remain an active program member.

On October 6, 2008, we published a notice of initiation of a 5-year review for June sucker in the Federal Register and requested new information that could have a bearing on the status of June sucker (73 FR 58261). This document serves as a completion of that 5-year review.

It is our intent to discuss only those topics directly related to downlisting June sucker in this proposed rule. For more information on the description, biology, ecology, and habitat of the species, please refer to the final listing rule published in the Federal Register on March 31, 1986 (51 FR 10851) and the recovery plan (Service 1999). These documents will be available as supporting materials on http://www.regulations.gov under Docket No. FWS-R6-ES-2019-0026.

We identify the species' ecological requirements for survival and reproduction using the concepts of resiliency, redundancy, and representation (the 3Rs). Resiliency is the ability of a species to withstand stochastic events. It is associated with population size, growth rate, and habitat quality. Redundancy is the ability of a species to withstand catastrophic events for which adaptation is unlikely. It is associated with the number, distribution, and resilience of populations. Representation is the ability of a species to adapt to novel changes in its environment, as measured by its ecological and genetic diversity. It is associated with the distribution of populations of the species across its range.

The June sucker, a unique lake sucker named for the month in which it was known to spawn, was first collected and described by David S. Jordan in 1878, in Utah Lake, Utah County, Utah (Jordan 1878, entire). However, taxonomic questions regarding hybridization of the June sucker and co-occurring Utah sucker ( Catostomus ardens ) ultimately resulted in reclassification of the species.

The two species likely evolved together in Utah Lake. During the 1930s, a severe drought stressed the sucker populations in Utah Lake, increasing the incidence of June and Utah sucker hybridization (Miller and Smith 1981, p. 7). After this hybridization event, as sucker populations increased in abundance, the new genes that occurred in both the June sucker and Utah sucker populations resulted in hybrid characteristics within both populations (Evans 1997, p. 8). It is likely that the two species may have hybridized at multiple points in the past, in response to environmental bottlenecks (Evans 1997, pp. 9-12). As a result of the hybridization event in the 1930s, two subspecies of June sucker were originally identified— Chasmistes liorus liorus to sucker specimens collected in Utah Lake in the late 1800s, and Chasmistes liorus mictus to specimens collected after 1939, following the drought years (Miller and Smith 1981, p. 11). This classification was never corroborated, and because the June sucker maintained its distinctiveness from other lake suckers, we determined that it should be listed as a full species under the name Chasmistes liorus (51 FR 10851, March 31, 1986).

The June sucker has a large, robust body, a wide, rounded head, and a distinct hump on the snout (Scoppettone and Vinyard 1991, p. 1). Adults are 17-24 inches (in) (43.2-61.0 centimeters (cm)) in length (Scoppettone and Vinyard 1991, p. 1; Belk 1998, p. 2). Lake suckers are mid-water planktivores (plankton feeders). June sucker is a long-lived species, living to 40 years or more (Scoppettone and Vinyard 1991, p. 3; Belk 1998, p. 6). In the wild, June suckers reach reproductive maturity at 5 to 10 years of age. They exhibit rapid growth for the first 3 to 5 years, with intermediate growth rates between ages 8 to 10, and a further reduced growth rate after age 10. Growth between sexes does not differ within the first 10 years (Scoppettone and Vinyard 1991, p. 9).

The June sucker is native to Utah Lake and its tributaries, which are the primary spawning habitat for the species, and is not found outside of its native range except in man-made refuge populations. A refuge population was established in Red Butte Reservoir, Salt Lake County, Utah, and has been maintained there since 2004 (Utah Division of Wildlife Resources (UDWR) 2010, pp. 4-5). The only other population of June sucker is maintained at UDNR's Fisheries Experiment Station (FES) in Logan, Utah, as part of the JSRIP stocking program to enhance the species' population in Utah Lake. The FES also uses ponds at Rosebud, Box Elder County, Utah, as a grow-out facility to allow fish bred at FES to increase in size prior to stocking in Utah Lake (UDWR 2018, entire). Refuge populations have aided in retaining ecologic and genetic diversity in June sucker, which in turn aids the species in adapting to changing environmental conditions ( i.e., increases representation).

Utah Lake is a remnant of ancient Lake Bonneville, and is one of the largest natural freshwater lakes in the western United States. It covers an area of approximately 150 square miles (mi 2 ) (400 square kilometers (km 2 )) and is relatively shallow, averaging 9 feet (ft) (2.7 meters (m)) in depth. The lake lies west of Provo, Utah, and is the terminus for several rivers and creeks, including the Provo, Spanish Fork, and American Fork Rivers and Hobble and Battle Creeks. The outflow of Utah Lake is the Jordan River, which flows north into the Great Salt Lake, a terminal basin.

Utah Lake is located in a sedimentary drainage basin dominated by erosive soils with high salt concentrations. Available geologic data indicate that Utah Lake had a sediment filling rate of about 0.03 in (1 millimeter (mm)) per year over the past 10,000 years; this rate more than doubled with the urbanization of Utah Valley (Brimhall and Merritt 1981, pp. 3-5). Faults under the lake appear to be lowering the lake bed at about the same rate as sediment is filling it (Brimhall and Merritt 1981, pp. 10-11). Inputs of nutrient-rich sediments combined with the lake's high evaporation rate cause high levels of sediment loading, high soluble salt concentrations, and high nutrient levels as a baseline condition (Brimhall and Merritt 1981, p. 11).

Shallow lakes, such as Utah Lake, are typically characterized as having one of two ecological states: A clear water state or a turbid water state (Scheffer 1998, p. 10). The clear water state is often dominated by rooted aquatic macrophytes (aquatic plants) that can greatly reduce turbidity by securing bottom sediments (Carpenter and Lodge 1986, p. 4; Madsen et al. 2001, p. 6) and preventing excessive phytoplankton (algae) production through a suite of mechanisms (Timms and Moss 1984, pp. 3-5). Alternatively, a shallow lake in a turbid water state contains little or no aquatic vegetation to secure bottom sediments (Madsen et al. 2001, p. 9). As a result, fish movement and wave action can easily suspend lake-bottom sediments (Madsen et al. 2001, p. 9). In addition, fish can promote algal production by recycling nutrients (both through feeding activity and excretion). Fish can also suppress zooplankton densities through predation, and the zooplankton would otherwise suppress algal abundance (Timms and Moss 1984, p. 11; Brett and Goldman 1996, p. 3).

Historically, Utah Lake existed in a clear water state dominated by rooted aquatic vegetation, as shown in sediment cores extracted from Utah Lake (Macharia and Power 2011, p. 3). This clear water state is a habitat characteristic necessary to improve resiliency of June sucker. Sediment cores reveal a shift in the state of the lake shortly after European settlement of Utah Valley to an algae-dominated, turbid condition, lacking macrophytic vegetation that serves as refugial habitat for June sucker (Brimhill and Merritt 1981, p. 16; Scheffer 1998, p. 6; Hickman and Thurin 2007, p. 8; Macharia and Power 2011, p. 5). This shift is believed to be a result of excessive nutrient input, management-induced fluctuations in lake levels, and the introduction of common carp ( Cyprinus carpio ). The end result of compounded natural and human-caused effects is a present-day lake ecosystem that is dominated by algae, rather than the clear water state in which June sucker evolved.

The extent of ideal riverine habitat available for spawning adults and developing larval June sucker was more abundant historically than it is currently. Prior to settlement of Utah Valley, spawning tributaries, such as the Provo, Spanish Fork, and American Fork Rivers and Hobble Creek, contained large deltas with braided, slow, meandering channels and aquatic vegetation that provided suitable spawning and larval rearing habitat (Olsen et al. 2002, p. 4). Multiple spawning tributaries provided redundancy for June sucker. The range of diverse habitats historically present within these tributaries was essential to larval sucker survival and maintaining the species' resiliency. Most importantly, slow water pool and marsh habitats provided refuge from predation by larger fishes.

Since settlement, changes to the tributaries have decreased the available habitat for June sucker spawning and rearing, although recent restoration projects have improved conditions in the Provo River and Hobble Creek. The Provo River contains many natural characteristics that support the majority of the June sucker spawning run and also play an important role in contributing to the recovery of the species. The Provo River is the largest tributary to the lake in terms of annual flow, width, and watershed area (Stamp et al. 2002, p. 19). All of these characteristics contribute to higher numbers of spawning June sucker using the Provo River than the other Utah Lake tributaries. These characteristics also best support the proper timing of the June sucker spawning period and help protect against further hybridization with Utah sucker. Continued increase and improvement of available spawning and larval rearing habitat in the Provo River is necessary for recovery of the species.

June suckers are highly mobile and can cover large portions of their range in a short period of time (Radant and Sakaguchi 1981, p. 7; Buelow 2006, p. 4; Landom et al. 2006, p. 13). Adult June suckers exhibit lake-wide distributional behavior throughout most of the year (Buelow 2006). However, in the fall, June suckers congregate along the western lakeshore, and in the winter, move to the eastern areas. One explanation for the easterly orientation in the winter may be the presence of relatively warm fresh-water springs along the eastern shore of Utah Lake (SWCA 2002, p. 14).

During pre-spawn staging, in April and May, June suckers congregate in large numbers near the mouths of the Provo River, Hobble Creek, Spanish Fork River, and American Fork River (Radant and Hickman 1984, p. 3; Buelow et al. 2006, p. 4; Hines 2011, p. 8). June suckers generally initiate a spawning migration into Utah Lake tributaries (primarily the Provo River, but also Hobble Creek and, to a lesser extent Spanish Fork River and American Fork River) during the second and third weeks of May (Radant and Hickman 1984, p. 7). Provo Bay is likely one of their primary pre-spawn and post-spawn congregation areas (Buelow 2006, p. 4).

Most spawning is completed within 5-8 days. Post-spawning suckers congregate near the mouth of Provo Bay, which could be a response to the high food productivity that remains in the bay until the fall (Radant and Shirley 1987, p. 13; Buelow 2006, p. 8). Zooplankton densities are greater in Provo Bay than in other lake areas (Kreitzer et al. 2011, p. 9), providing abundant food to meet the energy demands of post-spawn suckers, as well as an ideal location for the growth and survival of young-of-year June suckers recently emerged from the spawning tributaries (Kreitzer et al. 2011, p. 10).

June sucker spawning habitat consists of moderately deep runs and riffles in slow to moderate current with a substrate composed of 4-8 in (100-200 mm) coarse gravel or small cobble that is free of silt and algae. Deeper pools adjacent to spawning areas may provide important resting or staging areas (Stamp et al. 2002, p. 5).

Under natural conditions, June sucker larvae drift downstream and rear in shallow vegetated habitats near tributary mouths in Utah Lake (Modde and Muirhead 1990, pp. 7-8; Crowl and Thomas 1997, p. 11; Keleher et al. 1998, p. 47). Juvenile June suckers then migrate into Utah Lake and use littoral aquatic vegetation as cover and refuge (Crowl and Thomas 1997, p. 11). June sucker juveniles form schools near the water surface, presumably feeding on zooplankton in the shallows. Young-of-year suckers form shoals (aggregations of hundreds of fish) near the surface under the cover of aquatic vegetation (Billman 2008, p. 3).

However, effects from nonnative common carp, altered tributary flows, lake water level management, nutrient loading, poor water quality, and river channelization have reduced the amount of shallow, warm, and complex vegetated aquatic habitat for rearing at the tributary mouths and Utah Lake interface. This reduction in rearing habitat has reduced survival of June suckers during the early life stages (Modde and Muirhead 1990, p. 9; Olsen et al. 2002, p. 6). As June suckers reach the subadult stage, they begin to move offshore (Billman 2005, p. 16).

Early accounts indicate that Utah Lake supported an enormous population of June sucker (Heckmann et al. 1981, p. 8), and was proclaimed “the greatest sucker pond in the universe” (Jordan 1878, p. 2). The first major reductions in the number of June suckers were in the late 1800s. Through the mid-1800s, June suckers were caught during their spawning runs and were widely used as fertilizer and food (Carter 1969, p. 7). During this period, an estimated 1,653 tons (1,500 metric tons) of spawning suckers were killed when 2.1 mi (3.3 km) of the Provo River was dewatered due to reduced water availability and high demand (Carter 1969, p. 8).

Hundreds of tons of suckers also died when Utah Lake was nearly emptied during a 1932-1935 drought (Tanner 1936, p. 3). After the drought, June sucker populations gradually increased, but due to the combined impacts of drought, overexploitation, and habitat destruction, the population did not return to its historical level (Heckmann et al. 1981, p. 9). June suckers were rare in monitoring surveys during the 1950s through the 1970s (Heckmann et al. 1981, p. 11; Radant and Sakaguchi 1981, p. 5).

By the time the species was listed under the Act in 1986, the June sucker had an estimated wild spawning population of fewer than 1,000 individuals. In 1999, we estimated the wild spawning population to be approximately 300 individuals, with no evidence of wild recruitment (Keleher et al. 1998, pp. 12, 53; Service 1999, p. 5).

Due to the immediate threat of June sucker extinction at the time of listing, the UDWR began raising populations in hatcheries and at secure refuge sites. These efforts resulted in the stocking of June sucker into Utah Lake to boost population numbers beginning in the 1990s and continuing through the present day (UDWR 2018b, p. 3). As of 2017, more than 800,000 captive-bred June suckers have been stocked in Utah Lake (UDWR 2017b, p. 6). The vast majority of fish detected spawning in Utah Lake tributaries are stocked fish that have become naturalized (UDWR 2018c, p. 7).

An estimated 3,500 June suckers, most of them stocked fish, were spawning annually in Utah Lake tributaries as of 2016 (Conner and Landom 2018, p. 2).This represents a ten-fold increase in spawning fish from when the recovery plan was finalized in 1999 (Conner and Landom 2018, p. 2). For all spawning tributaries combined, the spawning population size for both sexes substantially increased from 2008 to 2016. The estimated total population size grew by 22 percent. However, this estimate may be low, as monitoring efforts in tributaries were not consistent across all years, and data were not available for one year due to high flows. We do not have a population estimate for the entire June sucker population in Utah Lake.

Additionally, monitoring of June suckers in the lower Provo River during the 2018 spawning period captured a significant portion of fish that were not PIT tagged (2018 UDWR, p. 3). It is unclear if these untagged fish were the result of wild recruitment or of hatchery origin. The natural geochemical markers (signatures) in the otoliths (ear bones) and fin rays of collected, unmarked June suckers show that 39 percent (12 of 31) of these fish likely originated from the FES hatchery, 42 percent from Red Butte Reservoir, other rearing facilities, or inconclusive; and 19 percent (6 of 31) had signatures indicating they originated in Utah Lake (Wolff and Johnson 2013, p. 9), meaning they were likely recruited naturally into Utah Lake. These results suggest that successful natural reproduction and recruitment is occurring, although the exact location and conditions that contributed to this successful natural recruitment are not known. Additional analysis of June suckers of unknown origin is planned in 2019, to determine the level of natural recruitment occurring in Utah Lake. Regardless of origin, capture of untagged fish indicates there is an unknown number of spawning June suckers that were not accounted for in the spawning population estimate.

The year-to-year survival rate of fish stocked into Utah Lake varies significantly depending on a number of factors including length of fish at stock (which correlates to age) and time of year stocked (Goldsmith et al. 2016, p. 5). June suckers stocked in early summer that were 11.6 in (296 mm) in length or more (usually representing an individual that was 2 years old) had a survival rate of 83 percent. June suckers stocked at age one had survival rates ranging from zero to 67 percent. The smallest June suckers, those stocked at under 7.9 in (200 mm), had a survival rate into the next year of only two percent (Goldsmith et al. 2016, p. 14).

Year-to-year survival rates for spawning June suckers ranged from 65 to 95 percent depending on the tributary and the year (Goldsmith et al. 2016, p. 3). Additionally, June suckers that were stocked more than 10 years prior were detected spawning on multiple occasions, indicating the capability for long-term survival in Utah Lake (Conner and Landom 2018, p. 3). Between 2013 and 2016, June sucker showed a positive population trend with a combined annual growth rate of 1.06 for females and 1.04 for males across three tributaries (Provo River, Spanish Fork, and Hobble Creek), with Provo River having the highest population growth rate and Hobble Creek showing an overall decline (Conner and Landom 2018, p. 3). However, as nearly 50 percent of spawning June sucker detected in Hobble Creek were of unknown origin, a decline in detected spawners in this tributary does not necessarily mean fewer fish overall are using the tributary, because naturally recruited fish that have never been tagged would not be detected by the remote electronic methods used to collect June sucker presence information at spawning locations.

In summary, the viability of June sucker in its native range—as indicated by its representation, resiliency, and redundancy—has improved significantly since the time of listing, largely due to the efforts of the JSRIP (see Recovery). Stocking of June sucker, a program designed to maximize representation through genetic diversity, has been very successful at increasing the number of fish in Utah Lake. Stocked individuals are behaving as wild fish by migrating to new habitats, surviving many years, and participating in spawning activities. The JSRIP stocking program is planned to continue until the June sucker reaches self-sustaining population levels, with a focus on stocking 2-year-old fish over 12 in (300 mm) long to increase their chances of survival. The spawning population has increased at least ten-fold since 1999; there is evidence of high year-to-year survival rates and long-term survival for spawning individuals; and the spawning population is increasing at a high rate, improving the resiliency of the wild population. The stocking program and maintenance of refuge populations both at Red Butte reservoir and FES also provided redundancy to the wild populations. Moving forward, a planned origin study using fin-rays is meant to improve our understanding of the degree of natural recruitment of June sucker in Utah Lake, which will yield more accurate population estimates and inform future stocking rates and management decisions for the purposes of further bolstering the species' representation, resiliency, and redundancy to achieve full recovery.

Section 4(f) of the Act directs us to develop and implement recovery plans for the conservation and survival of endangered and threatened species unless we determine that such a plan will not promote the conservation of the species. Under section 4(f)(1)(B)(ii), recovery plans must, to the maximum extent practicable, include “objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions [of section 4 of the Act], that the species be removed from the list.” Recovery plans provide a roadmap for full recovery success to the Service, States, and other partners on methods of enhancing conservation and minimizing threats to listed species, as well as measurable criteria against which to evaluate progress towards recovery and assess the species' likely future condition. However, they are not regulatory documents and do not substitute for the determinations and promulgation of regulations required under section 4(a)(1) of the Act.

There are many paths to accomplishing recovery of a species, and recovery may be achieved without all of the criteria in a recovery plan being fully met. For example, one or more criteria may be exceeded while other criteria may not yet be accomplished. In that instance, we may determine that the threats are minimized sufficiently and the species is robust enough such that it no longer meets the definition of endangered or threatened. In other cases, recovery opportunities may be discovered that were not known when the recovery plan was finalized. These opportunities may be used instead of methods identified in the recovery plan. Likewise, information on the species may be learned that was not known at the time the recovery plan was finalized. The new information may change the extent to which existing criteria are appropriate for identifying recovery of the species. Recovery of a species is a dynamic process requiring adaptive management that may, or may not, follow all of the guidance provided in a recovery plan.

We finalized a recovery plan for June sucker in 1999, which included recovery actions and recovery criteria for downlisting and delisting of June sucker. These criteria lack specific metrics and may require updating. However, they are still relevant to the evaluation of recovery, and we discuss them in this document as one way to evaluate the change in status of June sucker.

Since 2002, the JSRIP has funded, implemented, and overseen recovery actions for the conservation of June sucker in accordance with the guidance provided by the recovery plan, including using adaptive management techniques to address new stressors as they arose. These recovery actions include: (1) Acquiring and managing water flows, (2) restoring habitat, (3) removing carp, and (4) augmenting the wild June sucker population. These efforts, and how they relate to the recovery criteria, are described in the following paragraphs.

The first downlisting criterion requires that Provo River flows essential for June sucker spawning and recruitment are protected (Service 2011, p. 5). We do not have enough information to determine the exact flow level required for June sucker spawning and recruitment. However, the JSRIP provides annual recommendations for June sucker on the Provo River and Hobble Creek based on the known biology of the species and the historical flow levels to the CUWCD and other water-managing bodies. These recommendations are currently supported by several reviews under the National Environmental Policy Act performed for their most recent restoration projects (Hobble Creek in 2016 and Provo River in 2015). The JSRIP has also acquired water totaling over 21,000 acre-ft (25,903,080 cubic m (m 3 )) per year to enhance flows during the spawning season on the Provo River and to supplement base flows through the summer for the benefit of larval June sucker. Approximately 13,000 acre-ft (16,035,240 m 3 ) of this water is permanently allocated, and the remainder is allocated through 2021. The JSRIP is pursuing additional water, permanent and temporary, to bolster June sucker allocations after 2021 (JSRIP 2018, p. 5). Additionally, the JSRIP has acquired 8,500 acre-ft (10,485,000 m 3 ) of permanent water for Hobble Creek (USBR 2017, pp. 3-5). These protected water sources, when delivered as additional water, provide added resiliency by improving habitat quality for the species.

The amount of water delivered to supplement flows in the Provo River and Hobble Creek and the timing of those deliveries is determined annually through a cooperative process involving multiple agencies. In 1996, the June Sucker Flow Work Group was formed by the USBR, DOI Central Utah Project Completion Act (CUPCA) Office, Provo River Water Users Association, Provo River Water Commissioner, CUWCD, UDWR, the Service, Provo City Public Works, and the URMCC. These agencies initially worked together to adjust reservoir releases to mimic a Provo River spring runoff hydrograph and improve June sucker spawning success. Since 2002, this process has been overseen by the JSRIP.

As recovery-specific water was acquired, the role of this work group has expanded to provide a forum for determining the optimal delivery pattern of supplemental flows. Based on existing conditions for a given year ( e.g., snow pack and reservoir storage), the multi-disciplinary work group uses operational flexibility for reservoir water delivery and runoff timing to evaluate and operate the system to deliver year-round flows to benefit June sucker recovery. Based on the meetings of the Flow Work Group, the JSRIP makes an annual recommendation for flow deliveries to the Provo River and Hobble Creek, adjusted for the available water conditions. Water managers (including USBR, CUPCA, Provo River Water Users Association, the Provo River Water Commissioner, CUWCD, and Provo City Public Works) then work to deliver water to meet that specific annual recommendation and have been successful in meeting the hydrograph scenarios agreed to by the Flow Work Group on an annual basis since 2004.

In 2004, the CUWCD, in cooperation with the Service and other members of the Flow Work Group, agreed on operational scenarios that mimic dry, moderate, and wet year flow patterns for the Provo River (CUWCD et al. 2004, p. 17). The Flow Work Group applied these operational scenarios in determining the spawning season flow pattern for the Provo River with the goal of benefiting June sucker recovery. In 2008, an ecosystem-based flow regime recommendation was finalized for the lower Provo River, based on available site-specific information (Stamp et al. 2008, p. 13). This year-round flow recommendation refined the operational scenarios identified in 2004 through the incorporation of relevant ecological functions into the in-stream flow analysis. Hydrologic variability, geomorphology, water quality, aquatic biology, and riparian biology were considered as aspects of flow recommendations, which were adjusted in consideration of these functions. The year-round flow recommendations are adaptive, with consideration of the variability within and among each water year. These include recommendations for a baseline flow, a spring runoff flow, and the duration of the rising and receding flow periods before and after runoff. As more is learned about the associations between flow and river functions, the recommendations can be adjusted (Stamp et al. 2008, p. 10).

In 2009, ecosystem-based flow recommendations were developed for Hobble Creek in the Lower Hobble Creek Ecosystem Flow Recommendations Report (Stamp et al. 2009, pp. 11-12). These recommendations were adopted by the JSRIP, included in the East Hobble Creek Restoration project Environmental Analysis (JSRIP 2009, p. 5), and are currently considered each year by April in determining the annual recommendations for delivery of flows to Hobble Creek (DOI et al. 2013, p. 41). Similar to the Provo River, these recommendations are intended to be adaptive.

The second downlisting criterion for June sucker requires that habitat in the Provo River and Utah Lake be enhanced or established to provide for the continued existence of all life stages (Service 1999, p. 4). Habitat restoration projects have taken place both on the Provo River and Hobble Creek, and habitat quality has also been enhanced in Utah Lake as a result of nonnative species removal (see Common Carp, below).

Modifications of the Fort Field diversion structure on the Provo River, located within critical habitat, were completed in October 2009. This modification made an additional 1.2 mi (1.9 km) of spawning habitat available for the June sucker, permitting fish passage further upstream in their historical range (URMCC 2009, pp. 8-9; JSRIP 2008, p. 12). During the 2010 spawning season, June sucker were observed in the Provo River upstream of the modified Fort Field Diversion structure (UDWR 2011, pp. 7-8). In cooperation with the JSRIP, the CUWCD and URMCC are working with other diverters on the Provo River to evaluate further diversion structure removal or modification.

The JSRIP is also implementing a large-scale stream channel and delta restoration project for the lower Provo River and particularly its interface with Utah Lake to restore, enhance, and create habitat conditions in the lower Provo River for spawning, hatching, larval transport, rearing, and recruitment of the June sucker to the adult life stage, increasing the species' resiliency (Olson et al. 2002, p. 15; BIO-WEST 2010, p. 3). The Provo River Delta Restoration Project (PRDRP) will reestablish some of the historical delta conditions in the Provo River, thereby increasing habitat complexity and providing appropriate physical and biological conditions necessary for egg hatching, larval development, growth, young-of-year survival, and recruitment of young fish into the adult population. A Final Environmental Impact Statement for the PRDRP was released in April 2015, with a Record of Decision signed in May 2015. Federal agencies are currently acquiring lands needed for the PRDRP and developing a detailed design to provide optimal rearing habitat for June sucker (PRDRP 2017, entire).

Shortly after formation of the JSRIP, and based on delisting criteria identified in the 1999 June Sucker Recovery Plan (Service 1999, pp. 5-6), several Utah Lake tributaries were evaluated for the purpose of establishing a second spawning run of June sucker in addition to the Provo River spawning run (Stamp et al. 2002, p. 13). An additional spawning run would improve redundancy for the species by providing security in the event that a catastrophic event eliminated the Provo River spawning population. The study concluded that Hobble Creek provided the best opportunity, but would require habitat enhancements to make it suitable for June sucker spawning and allow for the development of quality rearing habitat for young suckers (Stamp et al. 2002, p. 13).

In 2008, the lower 0.5 mi (0.8 km) of Hobble Creek was relocated and reconstructed on land purchased by the JSRIP to provide June sucker spawning habitat, a more naturally functioning stream channel, and suitable nursery habitat for young suckers. The JSRIP partnered with the Utah Transit Authority to implement the habitat restoration project on the purchased property (DOI 2008, p. 14). The project re-created a functioning delta at the interface between Hobble Creek and Utah Lake and allowed the reestablishment of a June sucker spawning run. The restoration design results in more active river processes and includes numerous seasonally inundated off-channel ponds, which serve as larval nursery and rearing habitat to increase larval fish growth and survival (DOI 2008, p. 22).

In 2009, June suckers were documented spawning in the restored Hobble Creek, with verified larval production (Landom and Crowl 2010, pp. 1-12), and in 2010, juvenile June sucker (from 2009 spawning) were collected with seines in ponds within the Hobble Creek restoration area (Landress 2011, p. 4). Due to the success of the restoration, additional reaches of Hobble Creek have been selected for habitat enhancements to increase the amount of available spawning habitat. For example, directly upstream of the lower Hobble Creek restoration area, the East Hobble Creek Restoration Project was completed to enhance the stream channel by increasing sinuosity and floodplain connectivity, modify or remove diversion structures, and provide additional stream flows for Hobble Creek (JSRIP 2016b, p. 17). An age-1 June sucker was observed in this area in January 2018, indicating that June sucker are using this area for rearing (Fonken 2018, pers. comm.).

The third downlisting criterion requires that nonnative species that present a significant threat to the continued existence of June sucker are reduced or eliminated from Utah Lake. Common carp was identified as the nonnative species having the greatest adverse impact on June sucker habitat and resiliency, due to the large scale changes in water quality and macrophytic vegetation caused by carp introduction (see Distribution and Habitat, above).

In 2009, a mechanical removal program was instituted to remove common carp from Utah Lake. Between 2009 and 2017, over 13,000 tons (11,750 metric tons) of common carp were removed from the lake (UDWR 2017c, p. 2). This removal resulted in a decline of the common carp population. Catch-per-unit effort of common carp has decreased over the past 4 years, while average weight of individual common carp has increased, thus indicating a trend of reduction in common carp density in Utah Lake (Gaeta and Landom 2017, p. 7).

In 2015, after 6 years of common carp removal, native macrophytes were observed in Utah Lake vegetation monitoring studies for the first time (Landom 2016, pers. comm.). As of 2017, multiple sites in the lake have native littoral vegetation, including sites with increasing complexity supporting more than four native macrophytic species at one site (Dillingham 2018, entire). Sites with more complex vegetation support a higher diversity of macroinvertebrates, which provide additional food for June sucker, provide greater opportunities for June sucker to shelter from predators, and indicate improved water quality in the lake (Dillingham 2018, entire).

The common carp removal program in Utah Lake has had a positive impact on habitat quality, which may be contributing to natural recruitment and survival rates for June sucker (Gaeta and Landom 2017, p. 8; see Species Abundance and Trends ). Ongoing research by Utah State University is continuing to assess the relationship between common carp removal, habitat improvement, and June sucker population response as well as develop long-term recommendations for sustainable common carp management (Gaeta et al. 2018, entire). The JSRIP is prioritizing continued suppression of the common carp population via mechanical removal, as well as research into genetically modified sterile (YY) male technology that has the potential to reduce or eliminate carp from Utah Lake in the future (JSRIP 2018, p. 2).

The fourth and final downlisting criterion in the June sucker recovery plan is that an increasing self-sustaining spawning run of wild June sucker resulting in significant recruitment over 10 years has been reestablished in the Provo River. This criterion does not define “significant” recruitment. Although the spawning population of June sucker is increasing, annual stocking continues in order to support the population. The augmentation plan for the June sucker set a goal, for the purposes of meeting the recovery criterion of a self-sustaining population, of stocking 2.8 million individuals into Utah Lake (Service and URMCC 1998, entire). The goal was based on early studies of June sucker survival and the production capabilities of the facilities. As of 2017, more than 800,000 captive-bred June sucker have been stocked in Utah Lake from the various rearing locations, and a long-term, continued stocking strategy based on the most up-to-date research on stocking success and survival rates is under development (JSRIP 2008, p. 8; UDWR 2017b, p. 6).

Although the June sucker has not met this downlisting criterion identified in the 1999 recovery plan, we find that the population increases and trends achieved thus far (see Species Abundance and Trends ), with the addition of refuge populations to increase redundancy and genetic representation, will help prevent the species becoming endangered or extinct due to catastrophic stochastic events and provide a more realistic metric for downlisting eligibility.

Overall, recovery actions have addressed many of the threats and stressors affecting June sucker. The JSRIP has been effective in collaborating to implement a stocking program, increase June sucker spawning locations, acquire and manage water flows, remove nonnative common carp, and develop and conduct habitat restorations that target all life stages of June sucker. Studies are planned to improve understanding of the effects of other threats and stressors, including lake water quality and the impact of other invasive species on the June sucker. The JSRIP continues to be active and committed to full recovery of the June sucker.

Section 4 of the Act and its implementing regulations (50 CFR part 424) set forth the procedures for listing species, reclassifying species, or removing species from listed status. “Species” is defined by the Act as including any species or subspecies of fish or wildlife or plants, and any distinct vertebrate population segment of fish or wildlife that interbreeds when mature (16 U.S.C. 1532(16)). A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence.

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

We must consider these same five factors in downlisting a species. We may downlist a species according to 50 CFR 424.11(d) if the best available scientific and commercial data indicate that the species no longer meets the definition of an endangered species, but that it meets the definition of a threatened species.

For the purposes of this analysis, we evaluate whether or not June sucker meets the definition of an endangered or threatened species, based on the best scientific and commercial information available. We use the term “threat” to refer in general to actions or conditions that are known to or are reasonably likely to negatively affect individuals of a species. The term “threat” includes actions or conditions that have a direct impact on individuals (direct impacts), as well as those that affect individuals through alteration of their habitat or required resources (stressors). The term “threat” may encompass—either together or separately—the source of the action or condition or the action or condition itself.

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

In our determination, we correlate the threats acting on the species to the factors in section 4(a)(1) of the Act.

The following analysis examines the five factors currently affecting June sucker or that are likely to affect it within the foreseeable future. For each factor, we examine the threats at the time of listing in 1986 (or if not present at the time of listing, the status of the threat when first detected), the downlisting criterion pertinent to the threat, what conservation actions have been taken to meet the downlisting criteria or otherwise mitigate the threat, the current status of the threat, and its likely future impact on June sucker. We also consider stressors not originally considered at the time of listing, most notably climate change.

Loss and alteration of spawning and rearing habitat were major factors leading to the listing of the June sucker (51 FR 10851, March 31, 1986) and continue to threaten the species' overall resiliency and its recovery. Suitable spawning and rearing habitat in Utah Lake and its tributaries has declined due to water development, habitat modification, introduction of common carp, nutrient loading, and urbanization.

Water development and substantial habitat modifications have occurred in the Utah Lake drainage since the mid-1800s. These include the reduction in riverine flows (including the Provo River) from numerous water diversions, various water storage projects, channelization, and additional lake and in-stream alterations (Radant et al. 1987, p. 13; UDWR and UDNR 1997, p. 11; Andersen et al. 2007, p. 8). Many of these modifications and water depletions remain today, and continue to hinder the quantity and quality of June sucker rearing and spawning habitat, which in turn impacts species resiliency.

In 1849, settlers founded Fort Utah along the Provo River and began modifying the waters of Utah Lake and its main tributaries (USBR 1989, p. 3). In 1872, a low dam was placed across the lake outflow to the Jordan River, changing the function of Utah Lake into a storage reservoir (CUWCD 2004, p. 2). By the early 1900s, a pumping plant was constructed at the outflow to allow the lake to be lowered below the outlet elevation; this structure has since been modified and enlarged (Andersen et al. 2007, p. 5). The present capacity of the pumping plant is 1,050 cubic feet per second (cfs) (29.7 cubic meters per second (cms)), and it can lower the lake level 8-10 ft (2.4-3.0 m) below the compromise elevation of 4,489 ft (1,368 m) (Andersen et al. 2007, p. 5). The compromise elevation is a managed lake elevation target that the interested water authorities have agreed not to exceed through the active storage of water. This compromise elevation was intended to balance the threat of flooding among lands adjacent to Utah Lake and those downstream along the Jordan River (CUWCD 2004, p. 7).

As a storage reservoir, the surface elevation of Utah Lake fluctuates widely. Prior to the influence of water development projects, annual fluctuations averaged 2.1 ft (0.6 m) per year. For approximately 50 years, under the influence of water development projects, water levels fluctuated an average of 3.5 ft (1.0 m) annually prior to the completion of the Central Utah Project. After its completion, annual lake fluctuations averaged 2.5 ft (0.8 m) (Hickman and Thurin 2007, p. 20). Fluctuation in surface elevation is one of the possible factors contributing to the marked degradation of shoreline habitat and aquatic vegetation in the lake and may contribute to a decline in June sucker refugial habitat from predators (Hickman and Thurin 2007, p. 23).

The long history of water management in the Provo River, including river alterations, dredging, and channelization efforts, have modified the historical braided and complex delta into a single trapezoidal channel (Radant et al. 1987, p. 15; Olsen et al. 2002, p. 11). The current channel lacks vegetative cover, habitat complexity, and the food sources necessary to sustain larval fishes rearing in the lower Provo River (Stamp et al. 2008, p. 20). Additionally, the lower 2 mi (3.2 km) of the Provo River experiences a back-water effect, where the velocity stalls under low-flow scenarios and a high seasonal lake level causes the water to back up from the lake into the Provo River (Stamp et al. 2008, p. 20). The slack-water substantially reduces the number of larvae drifting into the lake; as a result, the larvae, with poorly developed swimming abilities, either starve or are consumed by predators in this lower stretch of river (Ellsworth et al. 2010, p. 9). Because of the extensive modification of the lower Provo River, in the past June sucker larvae have not survived longer than 20 days after hatching (Ellsworth et al. 2010, pp. 9-10). The upcoming PRDRP is designed to increase survival of larvae by providing additional rearing habitat along the Provo (PRDRP 2017, entire).

Similar to the Provo River, Hobble Creek and other tributaries of significance (Spanish Fork River and American Fork River), have been extensively modified by human activities. The hydrological regimes have been altered by multiple dams and diversions, and the stream channels have been straightened and dredged into incised trapezoidal canals (Stamp et al. 2002, p. 5). As a result, the streams are isolated from their historical floodplains and have modified flow velocities and pool-riffle sequences (Stamp et al. 2002, p. 6). Until recent restoration efforts, the Hobble Creek channel had almost no gradient and ended without a defined connection to the lake interface in Provo Bay due to diversion structures and dredging. In the past, the channel was blocked by debris accumulation that created barriers to fish migration, preventing adult June sucker access to the main stem of Hobble Creek.

Located south of Provo Bay, the Spanish Fork River is the second largest stream inflow to Utah Lake, but the majority of the discharge is diverted during the irrigation season (June-September) (Psomas 2007, p. 12). While adult and larval June sucker occur in the Spanish Fork River (UDWR 2006, p. 2; 2007, p. 2; 2008a, p. 3; 2009a, p. 4; and 2010b, p. 2), the seasonally inadequate flows, poor June sucker rearing habitat at the Utah Lake interface, low water clarity, diversion structures, and miles of levees along the channel are obstacles to successful recruitment (Stamp et al. 2002, p. 5). Adult spawning habitat is limited to the lower 2.7 mi (4.3 km) of the Spanish Fork River, where it is of poor quality. Other tributaries where spawning may occur under favorable conditions include the American Fork River and Battle Creek, but streamflow to Utah Lake in these tributaries is not available most years; therefore, they are not believed to comprise a significant portion of June sucker spawning habitat.

Recovery actions for the June sucker to address impacts from water development and habitat modification have included water acquisition, water flow management, and habitat restoration (see Recovery). The availability of quality spawning habitat will improve species resiliency, and multiple spawning tributaries will improve species redundancy. The positive trend in spawning population numbers, increased number of June suckers, and observations of young-of-year and age-1 June sucker in the wild indicate that water acquisition, water flow management, and habitat restoration have had a positive impact on June sucker reproduction (JSRIP 2018, p. 1; see Species Abundance and Trends ).

Historically, Utah Lake had a rich array of rooted aquatic vegetation, which provided nursery and rearing habitat for young June sucker (Heckmann et al. 1981, p. 2; Ellsworth et al. 2010, p. 9). However, with the introduction of common carp around the 1880s (Sigler and Sigler 1996, pp. 5-6), this refugial habitat largely disappeared. Common carp physically uproot and consume macrophytes and disturb sediments, increasing turbidity and decreasing light penetration, which inhibits macrophyte establishment (Crowl and Miller 2004, pp. 11-12). Although not specifically identified at the time of listing, the successful establishment of common carp and their effect on the Utah Lake ecosystem is a threat to the persistence of the species (SWCA 2002, p. 19). However, the previously described carp removal program has reduced carp populations and increased macrophytic vegetation in the lake, improving resiliency of June sucker (see Recovery).

Rapid urbanization on the floodplains of Utah Lake tributaries stimulated extensive flood and erosion control activities in lake tributaries and reduced available land for the natural meandering of the historical river channels (Stamp et al. 2008, p. 4). Channelization for flood control and additional channel manipulation for erosion control further reduced riverine habitat complexity and reduced the total length of tributary rivers for spawning and early-life-stage use (Stamp et al. 2008, pp. 12-13). It is anticipated that further urban infrastructure development is likely as the populations of cities bordering Utah Lake and its tributaries continue to increase.

Among the potential impacts from continued urbanization near Utah Lake is the potential for the construction of bridges or other transportation crossings. One example is the Utah Crossing project, a causeway across Utah Lake proposed in 2009. An updated application has not been filed with Utah's Department of Transportation for the project to proceed; however, as development continues on the western side of Utah Lake, the potential need for some type of crossing may increase.

A large-scale project to dredge Utah Lake, remove invasive species, and build habitable islands for private development was proposed in 2017 and is under early stages of planning and review at the State level (ULRP 2018, entire). This project has not received any approval or necessary permits at the State or Federal level. We do not expect the Utah Lake Restoration Project or the Utah Crossing project to move forward or impact June sucker in the next 5-10 years. All development projects on Utah Lake are subject to Federal and State laws and require consultation with the Service prior to beginning work. However, such projects could potentially impact June sucker by increasing habitat for predatory fish and restricting June sucker movement in Utah Lake (Service 2009, entire). Additional impacts to water quality due to the runoff from new structures could also pose a threat to June sucker (Service 2009, entire). The Utah Division of Water Quality (UDWQ) is partnering with the Utah Lake Commission and other stakeholders to research and provide recommendations to improve water quality and address impacts of urbanization and other factors that may negatively impact future water quality (UDWQ 2017, entire).

Water development and habitat modification, common carp, and urbanization have been identified as threats to June sucker. Since the time of listing, the following recovery actions have been implemented: (1) 21,500 acre-feet of permanent water for instream flows has been secured to benefit the June sucker; (2) a mechanism for annually recommending and providing flows for June sucker spawning has been implemented; (3) the common carp population has been suppressed resulting in measurable habitat improvement in Utah Lake; (4) the impacts of urbanization are being considered through active research and planning; and (5) a landscape-scale stream channel and delta restoration for the Provo River is being implemented (see Recovery). We find that the severity of the threats under Factor A have decreased since the time of listing; adaptive management of these threats is ongoing, and increased resiliency and redundancy are evident as indicated by increasing survival rates and overall population numbers.

Commercial fishing, including fishing for June sucker, was historically an important use of Utah Lake (Heckman et al. 1981, p. 9). Some commercial fishing for June sucker occurred through the 1970s, but on a very limited basis. Shortly thereafter, commercial harvest for the species largely stopped due to the limited population size. Currently, June sucker is a prohibited species and cannot be harvested (Utah Regulation 657-14-8). Consequently, commercial or recreational fishing is no longer considered a threat to the species. Regulated collections of June sucker for scientific purposes continue at a very limited level, but do not pose a threat to the population status. We do not consider overutilization for commercial, recreational, scientific, or educational purposes a threat to June sucker.

Neither disease nor the presence of parasites were considered threats to June sucker at the time of listing. Although parasites likely exist in June sucker habitat, there is no evidence that June sucker at the individual or population levels are significantly compromised by the presence of parasites. Fish health inspections are regularly conducted on June sucker at the FES hatchery and in Red Butte Reservoir, and no known pathogens have been detected (JSRIP 2018c, entire). At this time, there is no information indicating that the presence of parasites or disease negatively affects June sucker.

Predation by nonnative fishes threatens the successful recruitment of young suckers into the spawning adult life stage (Radant and Hickman 1984, p. 6) and was a major factor for listing the species as endangered (51 FR 10851; March 31, 1986). The introduction of nonnative fishes significantly altered the native Utah Lake fish assemblage. Historically, Bonneville cutthroat trout ( Oncorhynchus clarkii ) was the top-level piscivore (fish-eating predator) in Utah Lake; however, 30 fish species have been introduced since the late 1800s. Twelve nonnative fish species have established self-sustaining populations, and seven of these are piscivorous (SWCA 2002, p. 14). As a result, June suckers currently face an array of predator species, including white bass ( Morone chrysops ), walleye ( Sander vitreus ), largemouth bass ( Micropterus salmoides ), black crappie ( Pomoxis nigromaculatus ), black bullhead ( Ameiurus melas ), northern pike ( Esox lucius ), and channel catfish ( Ictalurus punctatus ).

Predation by nonnative fishes primarily targets the early life stages of June sucker. Adult June sucker are larger than the gape size of the average predatory fish, and therefore, are significantly less vulnerable. At the time of listing, the effects of predation were exacerbated by the lack of vegetated refuge habitat within Utah Lake.

White bass may have the highest potential to limit recruitment of young suckers into the spawning adult population (SWCA 2002, p. 132; Landom et al. 2010, p. 18). White bass become piscivorous at age-0 in Utah Lake (Radant and Sakaguchi 1981, p. 12; Landom et al. 2010, pp. 11-12) and are the most abundant piscivore (UDWR 2010, p. 9). The white bass population in Utah Lake could consume as many as 550 million fish of various species throughout the course of 1 year (Landom et al. 2010, pp. 8-10). However, it appears that restored habitat with complex aquatic vegetation provides the sucker with effective refuge from white bass. Thus, habitat restoration is likely paramount to young-of-year June sucker resiliency and survival (see Recovery).

The recent illegal introduction of northern pike and its increasing population in Utah Lake raises concerns similar to white bass. Northern pike predominantly feed on juvenile fish; predation on adults is less than one percent (Reynolds and Gaeta 2017, p. 12). Thus far, the lake-wide number of northern pike has not measurably increased and active removal efforts continue to suppress populations (Reynolds and Gaeta 2017, p. 13). However, a northern pike population model shows potential for a high degree of population increase with potential for a high negative impact on the June sucker population by the year 2040 (Gaeta et al. 2018, entire). Despite these modeling results, unique factors impacting northern pike population dynamics in Utah Lake are still not understood. Recent habitat improvements in the lake from common carp removal (see Recovery) may help mitigate northern pike predation by providing refugia for June sucker. Additionally, high levels of total dissolved solids (TDS), similar to the levels found in Utah Lake, may suppress northern pike (Scannell and Jacobs 2001, entire; Koel 2011, p. 7). The JSRIP is funding research to clarify this relationship and to determine a course of action to prevent northern pike from becoming a greater threat to June sucker in the future.

While predation from nonnative species remains a threat, June suckers continue to persist in the lake, with spawning populations and the number of untagged fish ( e.g., possibly natural recruitment) increasing. Adaptive management of nonnative fish is ongoing.

Under this factor, we examine the stressors identified within the other factors as ameliorated or exacerbated by any existing regulatory mechanisms or conservation efforts. Section 4(b)(1)(A) of the Act requires that the Service take into account “those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species . . .” In relation to Factor D under the Act, we interpret this language to require the Service to consider relevant Federal, State, and Tribal laws, regulations, and other such binding legal mechanisms that may ameliorate or exacerbate any of the threats we describe in threat analyses under the other four factors or otherwise enhance the species' conservation. Our consideration of these mechanisms is described below.

As a listed species, the primary regulatory mechanism for protection of the June sucker is through section 9(a) of the Act, as administered by the Service, which broadly prohibits import, export, take ( e.g., to harm, harass, kill, capture), and possession of the species. Additional regulatory mechanisms are provided through section 7(a)(2) of the Act, which states that each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species that is determined by the Secretary, after soliciting comments from affected States, counties, and equivalent jurisdictions, to be critical. Section 10(a)(1)(A) of the Act provides a mechanism for research and propagation of listed species for recovery purposes through a permitting system that allows incidental take of a listed species in the course of scientific projects that will benefit the species as a whole. For non-Federal actions, section 10(a)(1)(B) of the Act authorizes the Service to issue a permit allowing take of species provided that the taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. Section 10(a)(2)(A) of the Act requires that a conservation plan, which is part of an application for an incidental take permit, describe the impact of the taking and identify steps to minimize and mitigate the impacts.

The Act would continue to provide protection to June sucker after downlisting to threatened status, but would not provide protection for the species after delisting. However, after delisting, the June sucker and its habitat would continue to receive consideration and some protection through other regulatory mechanisms discussed below.

The National Environmental Policy Act (NEPA; 42 U.S.C. 4321-4370d) requires Federal agencies to evaluate the potential effects of their proposed actions on the quality of the human environment and requires the preparation of an environmental impact statement whenever projects may result in significant impacts. Federal agencies must identify adverse environmental impacts of their proposed actions and develop alternatives that undergo the scrutiny of other public and private organizations as a part of their decision-making process. However, impacts may still occur under NEPA, and the implementation of conservation measures is largely voluntary. Actions evaluated under NEPA only affect June sucker if they address potential impacts to the species or its habitat. Because of this, NEPA provides some protection for June sucker in the cases of projects that directly impact its habitat in Utah Lake or its tributaries.

The Fish and Wildlife Coordination Act (16 U.S.C. 661-666c) requires that Federal agencies sponsoring, funding, or permitting activities related to water resource development projects request review of these actions by the Service and the State natural resource management agency. Similar to caveats noted for NEPA, actions considered under the Fish and Wildlife Coordination Act are only relevant if they potentially impact the species or its habitat. The Fish and Wildlife Coordination Act does not provide strong or broad protections for June sucker on its own, but does provide an additional layer of review for projects likely to directly impact June sucker and works in concert with other regulatory mechanisms.

Section 101(a) of the Federal Water Pollution Control Act ( i.e., Clean Water Act; 33 U.S.C. 1251-13287) states that the objective of this law is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters and provide the means to assure protection of fish and wildlife. This statute contributes in a significant way to the protection of the June sucker through provisions for water quality standards, protection from the discharge of harmful pollutants and contaminants (sections 303(c), 304(a), and 402), and discharge of dredged or fill material into all waters, including certain wetlands (section 404).

The Clean Water Act requires every State to establish and maintain water quality standards designed to protect, restore, and preserve water quality in the State. However, Utah Lake has failed to meet water quality standards due to exceedance of total phosphorus and TDS concentrations (Psomas 2007, p. 11), and it is listed as a section 303(d) “impaired” water (Utah Lake Commission 2018, p. 7). Poor water quality in Utah Lake could alter food availability for June sucker and contribute to increases in harmful algal bloom events and toxin concentrations from those events, which could increase the risk of large-scale June sucker mortality events. To meet Clean Water Act requirements, UDWR and the Utah Lake Commission are studying water quality in Utah Lake and have organized a steering committee and science panel for the purposes of providing recommendations to improve water quality standards in Utah Lake (Utah Lake Commission 2018, entire).

June sucker also receives some protections at the State level. Commercial or recreational fishing for June sucker is not allowed. Possession of June sucker is prohibited in the State of Utah and it cannot be harvested (Utah Regulation 657-14-8).

Improved implementation of regulatory mechanisms described above is necessary for recovery of the June sucker and to ensure long-term conservation of the species. If the species were to be delisted, there will be a need for conservation plans and agreements to provide assurances that the recovered June sucker population will be maintained. However, in the case of downlisting, the June sucker will continue to receive protection under the Act when listed as threatened. The species will also receive the same level of protection under the other aforementioned regulatory mechanisms.

At the time of listing, the impact of pollution from local communities was considered to be adversely affecting June sucker, but more information was needed to document this threat. Water quality in Utah Lake continues to be a threat to the species, and climate change is considered a new threat. Riverine water quality has improved in two of the tributaries (Provo River and Hobble Creek) due to the water acquisitions and the augmentation of stream flow for the protection of the species.

Utah Lake is hypereutrophic, characterized by frequent algal blooms and high turbidity (Merritt 2004, p. 14; Psomas 2007, p. 12). The increased turbidity, decreased water quality, and historical change in the plant community, from macrophyte-dominated to algae-dominated, affect the fishes of Utah Lake, including June sucker.

High turbidity can decrease the feeding ability of many species of planktivorous fish (Brett and Groot 1963, pp. 5-6; Vinyard and O'Brien 1976, p. 3), which could indicate a lack of access to sufficient food for rearing juveniles. Thus, elevated turbidity levels may decrease feeding efficiency of June sucker by limiting their ability to visually prey on preferred plankton food types.

Utah Lake is listed on Utah's 2016 section 303(d) list for exceedance of State criteria for total phosphorus and TDS concentrations (UDWQ 2018, p. 3-7). The majority of the total phosphorus load to Utah Lake is from point sources. Utah Lake also has naturally elevated salinity levels compared to other intermountain freshwater lakes, and there is anecdotal evidence that the concentrations are substantially higher today than they were before human development (Psomas 2007, p. 8). Within Utah Lake, natural salinity levels are due in part to high evaporation rates, which are a function of the lake's large surface-area-to-depth ratio and drainage basin characteristics. Evaporation naturally removes about 50 percent of the total volume of water that flows into the lake, resulting in a doubling of the mean salt concentration in water passing through the lake (Fuhriman et al. 1981, p. 7).

In addition, several natural mineral springs near the shore of Utah Lake contribute dissolved salts, although the magnitude and effect of these sources has not been quantitatively evaluated (Hatton 1932, p. 2). Evaporative losses continue to be the main driver of salinity concentrations in Utah Lake. However, settlement and development of the Utah Lake basin since the 1800s led to increases in irrigation return flows containing dissolved salts, which likely exacerbated natural salinity concentrations within Utah Lake (Sanchez 1904, p. 1). Despite the human influences on inflows, in recent years, salinity levels in Utah Lake have not increased markedly (Psomas 2007, p. 13). The UDWQ continues to monitor Utah Lake for any changes in salinity concentrations.

The effects of increased salinity concentrations on the various life stages of June sucker are unknown. Egg size, hatching success, and mean total length of larvae decreased as salinity levels increased for another lake sucker that occurs in Nevada, the cui-ui ( Chasmistes cujus; Chatto 1979, p. 7). However, salinity concentrations were much higher in the cui-ui habitat than any recorded concentrations in Utah Lake.

Natural nutrient loading to the lake is high due to the nutrient- and sediment-rich watershed surrounding the lake. However, human development in the drainage increased the naturally high inflow of sediments and nutrients to the lake (Fuhriman et al. 1981, p. 12). Sewage effluent entering the lake accounts for 50, 76, and 80 percent of all nitrogen, total phosphorous, and ortho-phosphate, respectively (Psomas 2007, p. 12). Phosphorus inputs to the lake (297.6 tons (270.0 metric tons) per year) exceed exports (83.5 tons (75.7 metric tons) per year) during all months of the year. Thus, the lake acts as a phosphorus sink, accumulating approximately 214 tons (194.1 metric tons) annually (Psomas 2007, p. 15). These high nutrient loads increase the frequency and extent of large blue-green algal blooms, which greatly affect overall food web dynamics in Utah Lake (Crowl et al. 1998b, p. 13). Blue-green algae is inedible to many zooplankton species, which decreases zooplankton abundance and its availability as a food source for June sucker (Landom et al. 2010, p. 19). Reductions in feeding rates translate into long-term effects such as decreased condition, growth rates, and fish survival (Sigler et al. 1984, p. 7; Hayes et al. 1992, p. 9). Furthermore, the increased algal biomass limits available light for submergent vegetation (Scheffer 1998, p. 19), thus reducing refugial habitat for early life stages of June sucker. The frequency and size of algal blooms may be increasing as large-scale algal blooms occurred in 2016 and 2017 (UDWQ 2017, p. 3).

Although there is a significant amount of research indicating that algal blooms can be harmful to many types of fish, we do not have direct evidence regarding the degree or manner in which they impact June sucker in Utah Lake (Psomas 2007, p. 14; Crowl 2015, entire). No fish kills were documented during recent bloom events, but post-stocking monitoring of June sucker has noted that, during algal blooms, fish movement decreased measurably (Goldsmith et al. 2017, p. 13).

An average Utah Lake TDS concentration is about 900 parts per million (ppm)/milligrams per liter (mg/L), but large variations occur, depending on the water year (Hickman and Thurin 2007, p. 9). There is no evidence of direct mortality to June sucker due to higher salinity levels, but it is possible that increased salinity, when combined with increased nutrient input and turbidity, may adversely affect June sucker by reducing zooplankton and refugial habitat abundance as described above. Further study of June sucker responses during high salinity events is needed to better understand this relationship.

Water quality concerns in Utah Lake are being addressed through a large-scale study and the formation of a steering committee and science panel to develop recommendations for Utah Lake water quality for the benefit of June sucker (UDWQ 2017, entire).

Prior to listing, riverine water quality was heavily impacted by water withdrawal, agricultural and municipal effluents, and habitat modification. The water withdrawals reduced the ability of the rivers to effectively transport sediments and other materials from the river channel. Furthermore, withdrawals influenced temperature, dissolved oxygen, and pollutant/nutrient concentrations (Stamp et al. 2008, p. 18). Diverted streams with reduced, shallow summertime base flows are very susceptible to solar heating and can experience lethally warm water temperatures (over 80 °F or 27 °C, depending on life stage). High water temperature, especially if combined with stagnant flow velocities, can lead to low dissolved oxygen levels in streams where flows have been reduced (Stamp et al. 2008, p. 19).

Artificially high temperatures may also occur in streams where flow regime alterations and channelization have limited the recruitment of woody riparian vegetation, thereby reducing the amount of streamside shading (Stamp et al. 2008, p. 19). Subsequently, extensive colonization by filamentous algae can occur in warmer temperatures, creating extreme daily dissolved oxygen fluctuations that are harmful to June sucker (Service 1994, p. 12). Agricultural and municipal effluents can enrich production of algae, further impacting daily dissolved oxygen levels. These effluents can cause fish kills if significant runoff from agricultural and municipal properties occurs during low flow periods. Furthermore, heavy algal growth can cause the armoring of spawning gravels and aid in the accumulation of fine sediments that degrade spawning habitat quality (Stamp et al. 2008, p. 32).

The Provo River is listed on Utah's 2016 section 303(d) list for impairments harmful to cold-water aquatic life. Additionally, water quality has been considered poor in the river's lower reaches during summer low-flow periods due to low dissolved oxygen levels and elevated temperatures (Stamp et al. 2008, p. 34). It is likely that the recent supplementation of flows for June sucker recovery in the Provo River are minimizing the risk of lethal temperatures and dissolved oxygen fluctuations by providing water during critical periods and maintaining base flows throughout the summer while larvae are developing. The planned Provo River Delta Restoration Project will provide additional water storage and refugial habitat (see Recovery).

Hobble Creek is not currently on the Utah section 303(d) list as being an impaired waterbody. However, there are indications that total phosphorus and temperature may be problematic in Hobble Creek during certain times of the year (Stamp et al. 2009, pp. 22-23). Based on review of data collected since 1999 at the water quality station on Hobble Creek at I-15 (STORET site #4996100), average total phosphorous concentration is 0.06 ppm/mg/L, which exceeds the Utah indicator value of 0.05 ppm/mg/L (Stamp et al. 2009, p. 24). In addition, creek temperatures exceed 68 °F (20 °C), which is the State cold-water fishery standard; this temperature increase typically occurs during summer days when air temperatures are high and flow in the channel is low (Stamp et al. 2009, p. 26). Similar to the Provo River, the augmentation of stream flows in Hobble Creek has likely minimized the risk of lethal temperatures by providing flows during critical periods.

The predicted increase in global average temperatures is expected to negatively affect water quality in shallow lakes (Mooij et al. 2007, p. 2). Turbid shallow lakes such as Utah Lake are likely to have higher summer chlorophyll- a concentrations with a stronger dominance of blue-green algae and reduced zooplankton abundance with climate change (Mooij et al. 2007, p. 5). This could affect June sucker food resources since zooplankton are the primary food source for the species.

In Utah, the intensity of naturally occurring future droughts are expected to increase and historically unprecedented warming is projected by the end of the 21st Century. Projected changed in winter precipitation include an increase in the fractions falling as rain, rather than snow, and potentially decreasing snowpack water storage (Frankson et al. 2017; p. 2). These changes in timing and amount of flow could affect June sucker spawning, because the spawning cues of increased runoff and water temperature, on which the June sucker relies to determine spawning time, would potentially occur earlier in the year.

As changes to water availability and timing occur in the future, the JSRIP will need to coordinate reservoir operations to ensure timely releases. If runoff and upstream reservoir volumes are insufficient, peak and base flows desired in spawning tributaries will be reduced. This in turn would negatively impact the early season attractant flows needed by spawning adults, and potentially limit flows needed by larval suckers to move into downstream rearing habitats. While 13,000 acre-ft (16,035,240 m 3 ) of permanent water have been acquired for the Provo River and 8,500 acre-ft (10,485,000 m 3 ) have been acquired for Hobble Creek, and flows in both systems are intensively managed with consideration for June sucker, additional permanent water acquisitions may become necessary to secure water that can be used to supplement flows during critical spawning and rearing periods as the climate shifts.

Water quality in Utah Lake continues to be a threat to June sucker, although water acquisitions and effective water management practices to benefit the species have greatly reduced its impact and increased resiliency in the species. In the future, climate change may make addressing this threat more difficult due to increased temperatures and decreased precipitation. However, both water quality and availability of water in the future are actively being studied and prioritized by the JSRIP, UDWQ, and the Utah Lake Commission. Current conditions in the Utah lake ecosystem support an increasing population of June sucker in the lake and increasing spawning populations in key tributaries. In addition, three refuge populations exist to prevent extinction should an unforeseen catastrophic water quality event occur, thereby ensuring continued redundancy. Therefore, we find that adaptive management of the threats under Factor E, through on-going water management and acquisition for the benefit of June sucker, as well as efforts to improve water quality in Utah Lake, prevents them from rising to the level that would place June sucker in imminent danger of extinction.

As required by the Act, we considered the five factors in assessing whether the June sucker is an endangered or threatened species throughout all of its range. We carefully examined the best scientific and commercial information available regarding the past, present, and future threats faced by June sucker. We reviewed the information available in our files and other available published and unpublished information, and we consulted with recognized experts and State agencies. We evaluated the changes in resiliency, redundancy, and representation for June sucker since the time of listing.

June sucker resiliency has improved since the time of listing, with an increase in wild spawning population of at least ten-fold, a positive population trend, and increases in both the quality and quantity of habitat, which we project will continue to improve based on plans to continue successful management actions and implement new projects, such as the Provo River Delta Restoration and the Utah Water Quality Study. Redundancy in June sucker is assured by the existence of several refuge population, including a naturally self-sustaining population in Red Butte Reservoir and the stocking population maintained at FES and Rosebud Pond, as well as the presence of water flows in at least two spawning tributaries each year, with up to five spawning tributaries available in good water years. Prior to listing there were no refuge populations and in low water years there might be no available spawning tributaries with water throughout the summer. Representation for June sucker exists in the form of genetic diversity in the breeding and stocking program, which has preserved a high degree of genetic variation in the fish stocked in Utah Lake since listing. Based on these elements, we find that overall viability for June sucker has improved since the time of listing, to the point where it no longer meets the definition of endangered.

Factor B is not considered a threat to the June sucker due to the fact that harvest and collection of the species are strictly regulated and very limited. June suckers are affected by loss and degradation of habitat (Factor A), predation (Factor C), and other effects of human activities including climate change (Factor E). Existing regulatory mechanisms outside of the Act (Factor D) do not address all the identified threats to the June sucker, as indicated by the fact that these threats continue to affect the species throughout its range. However, recovery actions have significantly improved viability of the June sucker and reduced the immediacy of these threats.

The June sucker faces threats primarily from degraded habitat and water quality, water availability, predation from nonnative species, and urbanization. Furthermore, existing regulatory mechanisms do not adequately address these threats. The June sucker also faces a future threat of climate change, which may exacerbate other existing threats. These factors may act cumulatively on the species. For example, urbanization can result in increased pressure on existing water resources as well as degraded water quality, which when combined with rising temperatures and decreased rainfall can result in less available water, increased water temperatures, and decreased habitat quality. These factors can cause reduced availability of food for June sucker, decreased reproductive success, and increased mortality.

However, since the time of listing, all of the identified threats to June sucker have either improved measurably or are being adaptively managed according to the best available scientific information for the benefit of June sucker (see Recovery). Conservation measures, including stocking of June sucker in Utah Lake, habitat restoration projects on spawning tributaries, and nonnative fish removal, have resulted in increased numbers of June sucker in the lake, evidence of wild reproduction, and improved habitat within the lake and its tributaries. As a result, resiliency, redundancy, and representation have all improved. Continued research and monitoring provide an avenue to respond to new and evolving threats, such as the effects of climate change, to recovery progress. The existence of refuge populations ensures that, should a stochastic event or extreme combination of existing threats greatly impact the population in Utah Lake, the June sucker would not become extinct.

This resilience to the cumulative threats is due largely to the actions of an active, committed, and well-funded recovery partnership. The JSRIP has been the driving force behind the reduction in threats, habitat improvement, and population augmentation and is able to adaptively manage new stressors as they arise. The improvement of conditions and success of the recovery program can be measured via the increased number of spawning June suckers, the positive population trend, and the high level of year-to-year survival.

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

After evaluating threats to the species and assessing the cumulative effects of the threats under the section 4(a)(1) factors, we find that the threats of loss and degradation of habitat (Factor A), predation (Factor C), and other effects of human activities including climate change (Factor E) are still acting on June sucker. Existing regulatory mechanisms outside of the Act (Factor D) do not address all the identified threats to the June sucker, as indicated by the fact that these threats continue to affect the species throughout its range, although with less intensity than at the time of listing. Based on the analysis above and given increases in population numbers due to recovery efforts, we conclude the June sucker no longer meets the Act's definition of an endangered species.

Although population numbers have increased and the intensity of the identified threats has decreased, our analysis indicates that, because of the remaining threats and stressors, the species remains likely to become in danger of extinction in the foreseeable future throughout all of its range.

Based solely on biological factors, we consider 25 years to be the foreseeable future within which we can reasonably determine that the future threats and the June sucker's response to those threats is likely. This time period includes multiple generations of the species and allows adequate time for impacts from conservation efforts or changes in threats to be indicated through population response. The foreseeable future for the individual threats vary. In terms of population and threats, management and recovery progress are overseen by the JSRIP. The charter of this program states that the purpose of the JSRIP is to recover June sucker to the point at which it no longer requires protections under the Act, and to do so based on recovery guidance provided by the Service using the best available scientific and biological information in an adaptive management approach. Because the JSRIP is committed to achieving full recovery and the partners have committed to providing funding through that point, threats to June sucker will continue to be adaptively managed by the JSRIP until such time as we find it no longer requires protections under the Act. For at least as long as the species remains listed, the JSRIP will continue to manage threats, stressors, and population health and trends in an adaptive way, ensuring that it is extremely unlikely to go extinct. The Service will then rely on management actions that have been put in place by the JSRIP, and other factors such as a population viability analysis, habitat improvements, and future long-term agreements, when delisting is being considered. This ensures continued stability in the absence of the protections of the Act after the June sucker reaches full recovery.

The breeding and stocking program and the nonnative fish removal program are expected to be on-going, with the development of long-term strategies to maintain recovery progress expected within the next 2 years. Permanent water acquired by the JSRIP is expected to be managed through the existing mechanisms indefinitely. Temporary water expires in 2 years, but the JSRIP is actively pursuing the acquisition of additional permanent water, which will be managed through those same mechanisms for the benefit of June sucker spawning. The Provo River Delta Restoration Project should be completed within 5 years, but it will take at least several years before the impact on June sucker recruitment can be detected, and potentially longer as the changes made by the PRDRP are likely to evolve over time as vegetation matures and hydrology adapts to the structural alterations (PRDRP 2017, entire). Models of nonnative fishes provided by Utah State University extend until 2040, but are subject to a large range of variables and are in the process of being refined (Reynolds and Gaeta 2017, entire; Gaeta et al. 2018, p. 8-10).

Thus, after assessing the best available information, we conclude that the June sucker is not currently in danger of extinction, but is likely to become in danger of extinction within the foreseeable future throughout all of its range.

Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range. Because we have determined that the June sucker is likely to become an endangered species within the foreseeable future throughout all of its range, we find it unnecessary to proceed to an evaluation of potentially significant portions of the range. Where the best available information allows the Services to determine a status for the species rangewide, that determination should be given conclusive weight because a rangewide determination of status more accurately reflects the species' degree of imperilment and better promotes the purposes of the Act. Under this reading, we should first consider whether the species warrants listing “throughout all” of its range and proceed to conduct a “significant portion of its range” analysis if, and only if, a species does not qualify for listing as either an endangered or a threatened species according to the “throughout all” language. We note that the court in Desert Survivors v. Department of the Interior, No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), did not address this issue, and our conclusion is therefore consistent with the opinion in that case.

Our review of the best available scientific and commercial information indicates that the June sucker meets the definition of a threatened species. Therefore, we propose to list the June sucker as a threatened species throughout all of its range in accordance with sections 3(20) and 4(a)(1) of the Act.

Section 4(d) of the Act states that the “Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation” of species listed as threatened. The U.S. Supreme Court has noted that very similar statutory language demonstrates a large degree of deference to the agency (see Webster v. Doe, 486 U.S. 592 (1988)). Conservation is defined in the Act to mean “the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to [the Act] are no longer necessary.” Additionally, section 4(d) of the Act states that the Secretary “may by regulation prohibit with respect to any threatened species any act prohibited under section 9(a)(1), in the case of fish or wildlife, or section 9(a)(2), in the case of plants.” Thus, regulations promulgated under section 4(d) of the Act provide the Secretary with wide latitude of discretion to select appropriate provisions tailored to the specific conservation needs of the threatened species. The statute grants particularly broad discretion to the Service when adopting the prohibitions under section 9.

The courts have recognized the extent of the Secretary's discretion under this standard to develop rules that are appropriate for the conservation of a species. For example, courts have approved rules developed under section 4(d) that include a taking prohibition for threatened wildlife, or include a limited taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007 U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D. Wash. 2002)). Courts have also approved 4(d) rules that do not address all of the threats a species faces (see State of Louisiana v. Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when the Act was initially enacted, “once an animal is on the threatened list, the Secretary has an almost infinite number of options available to him with regard to the permitted activities for those species. He may, for example, permit taking, but not importation of such species, or he may choose to forbid both taking and importation but allow the transportation of such species” (H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973).

The Service has developed a species-specific 4(d) rule that is designed to address the June sucker's specific threats and conservation needs. Although the statute does not require the Service to make a “necessary and advisable” finding with respect to the adoption of specific prohibitions under section 9, we find that this regulation is necessary and advisable to provide for the conservation of the June sucker. As discussed in the Overall Summary of Factors Affecting June Sucker section, the Service has concluded that the June sucker is at risk of extinction in the foreseeable future primarily due to the identified threats of water development, habitat degradation, and the introduction of nonnative species. The provisions of this proposed 4(d) rule would promote conservation of the June sucker by encouraging management of the Utah Lake system in ways that take into consideration the stakeholders while also meeting the conservation needs of the June sucker. The provisions of this rule are one of many tools that the Service will use to promote the conservation of the June sucker. This proposed 4(d) rule would apply only if and when the Service makes final the listing of the June sucker as a threatened species.

This proposed 4(d) rule would provide for the conservation of the June sucker by prohibiting the following activities, except as otherwise authorized or permitted: Importing or exporting; possession and other acts with unlawfully taken specimens; delivering, receiving, transporting, or shipping in interstate or foreign commerce in the course of commercial activity; or selling or offering for sale in interstate or foreign commerce.

Anyone taking, attempting to take, or otherwise possessing a June sucker, or parts thereof, in violation of section 9 of the Act would still be subject to a penalty under section 11 of the Act, except for the actions that would be covered under the proposed 4(d) rule. Under section 7 of the Act, Federal agencies must continue to ensure that any actions they authorize, fund, or carry out are not likely to jeopardize the continued existence of June sucker.

As discussed under Summary of Biological Status and Threats (above), nonnative species, water development, and habitat degradation are affecting the status of the June sucker. A range of beneficial conservation activities have the potential to impact the June sucker, including: Nonnative fish removal, habitat restoration projects, monitoring of June sucker, research or educational projects, and maintaining June sucker refuges.

Under the Act, “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Some of these provisions have been further defined in regulation at 50 CFR 17.3. Take can result knowingly or otherwise, by direct and indirect impacts, intentionally or incidentally. Allowing incidental and intentional take in certain cases, such as for the purposes of scientific inquiry, monitoring, or to improve habitat or water availability and quality would help preserve the species' remaining populations, slow their rate of decline, and decrease synergistic, negative effects from other stressors.

We may issue permits to carry out otherwise prohibited activities, including those described above, involving threatened wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.32. With regard to threatened wildlife, a permit may be issued for the following purposes: Scientific purposes, to enhance propagation or survival, for economic hardship, for zoological exhibition, for educational purposes, for incidental taking, or for special purposes consistent with the purposes of the Act. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.

The Service recognizes the special and unique relationship with our state natural resource agency partners in contributing to conservation of listed species. State agencies often possess scientific data and valuable expertise on the status and distribution of endangered, threatened, and candidate species of wildlife and plants. State agencies, because of their authorities and their close working relationships with local governments and landowners, are in a unique position to assist the Services in implementing all aspects of the Act. In this regard, section 6 of the Act provides that the Services shall cooperate to the maximum extent practicable with the States in carrying out programs authorized by the Act. Therefore, any qualified employee or agent of a State conservation agency that is a party to a cooperative agreement with the Service in accordance with section 6(c) of the Act, who is designated by his or her agency for such purposes, would be able to conduct activities designed to conserve the June sucker that may result in otherwise prohibited take without additional authorization.

This proposed 4(d) rule targets activities to facilitate conservation and management of June sucker where they currently occur and may occur in the future by eliminating the Federal take prohibition under certain conditions. These activities are intended to increase management flexibility and encourage support for the conservation and habitat improvement of June sucker. Under the proposed 4(d) rule, take will generally continue to be prohibited, but the following forms of take would be allowed under the Act, provided they were approved by the Service, in coordination with any existing designated recovery program, for the purpose of June sucker conservation or recovery:

• Incidental take resulting from activities intended to reduce or eliminate nonnative fish from Utah Lake or its tributaries, including but not limited to common carp, northern pike, and white bass.

• Incidental take resulting from habitat restoration projects or projects that would allow for the increase of instream flows in Utah Lake tributaries, such as diversion removals.

• Incidental take resulting from monitoring of June sucker in Utah Lake and its tributaries.

• Incidental and limited direct take resulting from research projects approved by the Service, in coordination with any existing designated recovery program, to study factors affecting June sucker or its habitat for the purposes of providing management recommendations or improved condition of June sucker.

• Incidental and limited direct take resulting from maintaining June sucker refuges and moving June sucker from refuges for the purposes of stocking them in Utah Lake.

These forms of allowable take are explained in more detail below. For all forms of allowable take, reasonable care must be practiced, to minimize the impacts from the actions. Reasonable care means limiting the impacts to June sucker individuals and population by complying with all applicable Federal, State, and Tribal regulations for the activity in question; using methods and techniques that result in the least harm, injury, or death, as feasible; undertaking activities at the least impactful times and locations, as feasible; procuring and implementing technical assistance from a qualified biologist on projects regarding all methods prior to the implementation of those methods; ensuring the number of individuals removed or sampled minimally impacts the existing wild population; ensuring no disease or parasites are introduced into the existing June sucker population; and preserving the genetic diversity of wild populations.

Control of nonnative fish is vital for the continued recovery of June sucker. At this point in time, control of nonnative fish is primarily conducted with mechanical removal via commercial seine netting and to a limited extent through angling (for northern pike). Other methods, including the use of genetically modified nonnative fish and electrofishing to reduce existing populations, may be implemented in the future.

This proposed 4(d) rule defines nonnative fish removal excepted from incidental take as any action with the primary or secondary purpose (such as the introduction of genetically engineered nonnative fish as part of an elimination strategy) of removing nonnative fish from Utah Lake and its tributaries that compete with, predate upon, or degrade the habitat of June sucker. These removal methods must be approved by the Service, in coordination with any existing designated recovery program, for that purpose. Such methods may include but are not limited to mechanical removal, chemical treatments, or biological controls. All methods used must be in compliance with State and Federal regulations.

Whenever possible, June sucker that are caught alive as part of nonnative fish removal should be returned to their source as quickly as possible.

Habitat restoration projects are needed to provide additional spawning and rearing habitat and refugia for June sucker. Improvements in the ability to obtain and deliver water to spawning tributaries will allow for improved spawning conditions, entrainment of June sucker larvae for development, and periodic high flows providing scouring of spawning habitats. This proposed 4(d) rule defines habitat restoration or water delivery improvement projects excepted from incidental take as any action with the primary or secondary purpose of improving habitat conditions in Utah Lake and its tributaries or improving water delivery and available in-stream flows in spawning tributaries. These projects must be approved by the Service, in coordination with any existing designated recovery program, for that purpose. Examples of planned or suggested projects excepted from incidental take include the Provo River Delta Restoration Project and the removal of water diversion structures from the Provo River and Hobble Creek.

Monitoring of June sucker is vital to understanding the population dynamics, health, and trends; for measuring the success of the stocking program; for evaluating impacts from threats; and for evaluating recovery actions that address threats to the species. With the use of PIT tag technology, monitoring is becoming less disruptive to the June sucker. However, many monitoring methods, including the initial PIT tagging of individuals, may harm fish or result in death. In addition to PIT tag readers, methods that may be used to detect June sucker in the wild include trammel netting, spotlighting, minnow trapping, trap netting, gill-netting, spotlighting, electrofishing, and seining. This proposed 4(d) rule excepts incidental take associated with any method used to detect June sucker in the wild for the purposes of better understanding population numbers, trends, or response to stressors that is not intended to be destructive, but that may unintentionally cause harm or death. Only activities conducted by UDWR, their agents, or agents (included academic researches) specifically designated and approved by the Service, in coordination with any existing designated recovery program, are excepted from take restrictions through this 4(d) rule.

Additional research is needed on June sucker biology, ecology, habitat needs, predators, and response to threats in order to improve species status and provide recommendations for management, habitat improvement, and threat reduction. Research may involve capture of June suckers using methods described above, or a variety of other activities to study water quality, nonnative fishes, lake and riverine ecosystems, tributary flows, habitat, or other factors affecting June suckers that may impact individual fish inadvertently. In some cases, lethal sampling of June suckers for research purposes may be necessary and appropriate. This proposed 4(d) rule defines June sucker research excepted from take as any activity undertaken for the purposes of increasing our understanding of June sucker biology, ecology, or recovery needs under the auspices of UDWR, a recognized academic institution, or a qualified scientific contractor and approved by the Service, in coordination with any existing designated recovery program, as a necessary and productive study for June sucker recovery.

Maintaining refuge populations and stocking the June sucker in Utah Lake is an integral part of June sucker recovery. The process of breeding, rearing, growing, maintaining, and stocking June suckers may result in incidental take at all life stages, but the benefits to the species far outweigh any losses. At the present time, one facility (FES) breeds the June sucker for stocking in Utah Lake; this facility also functions as a refuge. FES uses offsite ponds as a grow-out facility to allow fish to reach a larger size before they are stocked in Utah Lake. An additional refuge population of June sucker exists in Red Butte reservoir and is maintained, but not actively managed, for stocking purposes. However, as fish from Red Butte consistently have the highest post-stocking success rates, Red Butte is an important source population and may be used for stocking more intensively in the future.

This proposed 4(d) rule defines June sucker stocking and refuge maintenance excepted from incidental take as any activity undertaken for the long-term maintenance of June sucker at facilities outside of Utah Lake and its tributaries or for the production of June sucker for stocking in Utah Lake. Such incidental take could occur from necessary facility maintenance or water management, including at Red Butte reservoir and its downstream drainages. Any breeding, stocking, or refuge program must be approved by the Service, in coordination with any existing designated recovery program. Any June sucker breeding program should be in compliance with all applicable regulations and best hatchery and fishery management practices as described in the American Fisheries Society's Fish Hatchery Management (Wedemeyer 2002).

Nothing in this proposed 4(d) rule would change in any way the recovery planning provisions of section 4(f) of the Act, the consultation requirements under section 7 of the Act, or the ability of the Service to enter into partnerships for the management and protection of the June sucker. However, interagency cooperation may be further streamlined through planned programmatic consultations for the species between Federal agencies and the Service. We ask the public, particularly State agencies and other interested stakeholders that may be affected by the proposed 4(d) rule, to provide comments and suggestions regarding additional guidance and methods that the Service could provide or use, respectively, to streamline the implementation of this proposed 4(d) rule (see Information Requested, above).

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

(a) Be logically organized;

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

(c) Use clear language rather than jargon;

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

(e) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES . To help us with revisions to this proposed rule, your comments should be as specific as possible. For example, you should identify the sections or paragraphs that are unclear, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ), need not be prepared in connection with regulations pursuant to section 4 of the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

In accordance with the President's memorandum of April 29, 1994, Government-to-Government Relations with Native American Tribal Governments (59 FR 22951), E.O. 13175, and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes. We have determined that no Tribes will be affected by this rule because there are no tribal lands or interests within or adjacent to June sucker habitat.

A complete list of all references cited in this proposed rule is available at http://www.regulations.gov at Docket No. FWS-R6-ES-2019-0026, or upon request from the Utah Ecological Services Field Office (see ADDRESSES ).

The primary authors of this proposed rule are staff members of the Service's Mountain Prairie Region and the Utah Ecological Services Field Office (see ADDRESSES and FOR FURTHER INFORMATION CONTACT ).

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

We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments and information from other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested party concerning this proposed rule. Because we will consider all comments and information we receive during the comment period, our final determination may differ from this proposal. We particularly seek comments on:

(1) Information concerning the biology and ecology of the Nashville crayfish;

(2) Relevant data concerning any threats (or lack thereof) to the Nashville crayfish, particularly any data on the possible effects of climate change as it relates to habitat, and the extent of State protection and management that would be provided to this crayfish as a delisted species;

(3) Current or planned activities within the geographic range of the Nashville crayfish that may negatively impact or benefit the species; and

(4) The draft PDM plan and the methods and approach detailed in it.

Please include sufficient information (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include. All comments submitted electronically via http://www.regulations.gov will be presented on the website in their entirety as submitted. For comments submitted via hard copy, we will post your entire comment—including your personal identifying information—on http://www.regulations.gov . You may request at the top of your document that we withhold personal information such as your street address, phone number, or email address from public review; however, we cannot guarantee that we will be able to do so.

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Tennessee Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

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

Section 4(b)(5)(E) of the Act provides for a public hearing on this proposal, if requested. Requests must be received within 45 days after the date of publication of this proposed rule in the Federal Register (see DATES ). Such requests must be sent to the address shown in FOR FURTHER INFORMATION CONTACT . We will schedule a public hearing on this proposal, if requested, and announce the date, time, and place of the hearing, as well as how to obtain reasonable accommodations, in the Federal Register at least 15 days before the hearing.

On September 26, 1986, we published a final rule in the Federal Register (51 FR 34410) listing the Nashville crayfish as endangered due to siltation, stream alterations, and water quality deterioration resulting from urban development pressures. On February 8, 1989, we released a recovery plan for the Nashville crayfish (USFWS 1989, entire). The latest 5-year review for the species, completed in February 2017, recommended reclassifying the Nashville crayfish to a threatened species due to recovery (USFWS 2017a, entire). Based on this recommendation, a species status assessment (SSA) was initiated and completed. Six peer reviewers were requested to review the SSA and provide feedback. Reviewers were selected based on their knowledge of the species' biology and habitat. Two peer reviewers submitted feedback. One of the commenters informed us that Nashville crayfish have been observed to be active on the surface diurnally during certain times of the year and suggested we add otters as predators to the crayfish. Another commenter asked about the conservation work being done by two Tennessee agencies. This information was incorporated into the final SSA and this proposed rule.

A thorough review of the taxonomy, life history, ecology, and overall viability of the Nashville crayfish is presented in the SSA report (USFWS 2017b; available at https://www.fws.gov/southeast/ and at http://www.regulations.gov under Docket No. FWS-R4-ES-2018-0062).

The Nashville crayfish is endemic to the Mill Creek watershed south of Nashville in Davidson and Williamson Counties, Tennessee. The species is currently known to occur in Mill Creek and its tributaries, including Collins Creek, Owl Creek, Edmonson Branch, Sims Branch, Sevenmile Creek, Sorghum Branch, Whittemore Branch, Turkey Creek, Indian Creek, Holt Creek, four unnamed tributaries to Mill Creek, and one unnamed tributary to Owl Creek (USFWS 2017b, p. 5). There has been no change in the distribution of the species within its historical range (USFWS 2016, unpublished data).

Biologists conducting the pre-listing status survey for the species surveyed 148 streams in the following central Tennessee drainages (Korgi and O'Bara 1985, entire): Collins River, Stones River, Caney Fork River, Cumberland River, Red River, Mill Creek, Harpeth River, and Elk River. Nashville crayfish were only found in Mill Creek and its tributaries.

Nonetheless, at the time of listing in 1986, the species was thought to have occurred historically in several locations outside of the Mill Creek watershed, including Big Creek in Giles County (Elk River drainage), the South Harpeth River in Davidson County (Harpeth River drainage), and Richland Creek in Davidson County (Cumberland River drainage) (USFWS 1987, entire). The Service now believes that the Big Creek and South Harpeth River records are the result of accidental introduction by anglers using the species as bait and are no longer thought to be historical locations for the crayfish (USFWS 2017b, p. 4). The Service originally believed that the Richland Creek occurrence had been displaced by a more competitive crayfish species (USFWS 2017b, p. 4). However, it was later determined that specimens of Nashville crayfish ( Orconectes shoupi ) collected from Richland Creek were misidentified, and the collections were subsequently correctly identified as the bigclaw crayfish ( Orconectes placidus ) (USFWS 1989, entire). In short, we now conclude that Mill Creek and its tributaries constitute both the historical and current ranges of the species.

The Nashville crayfish is a relatively large crayfish ranging from young-of-the-year at about 0.6 centimeters (cm) (0.24 inches (in)) total length (TL) to adults at about 17.8 cm (7 in) (TDNA 2009, p. 11; O'Bara et al. 1985, entire). Other Orconectes species reported from the Mill Creek watershed, including O. rhoadesi and O. durelli, can easily be distinguished from the Nashville crayfish by gonopod (reproductive) structure and body coloration. However, even young-of-the-year crayfish from the Mill Creek watershed often can be identified as the Nashville crayfish, as no other saddle-bearing species are present in the system. The saddle-bearing features include elongate pincers with red tips and adjacent narrow black banding, a usually light-colored “saddle” on the carapace extending from the posterior to the anterior and terminating as lateral stripes on both sides, and distinctive gonopods markedly different from any of its congeners.

The Nashville crayfish has been found in a wide range of environments, including gravel and cobble runs, pools with up to 10 cm (3.9 in) of settled sediment, and in small pools with intermittent flow (Stark 1986, 44 pp; Miller and Hartfield 1985, entire). The species has also been found in impoundments that include overflow pools and retention ponds adjacent to Mill Creek and its tributaries (Cook and Walton 2008, p. 121; Service 2011, entire). It is estimated that approximately 54 percent (104 stream miles) of the 192 stream miles of the Mill Creek watershed that have the potential to support Nashville crayfish is currently occupied by the species (USFWS 2017b, p. 30).

Population estimates from surveys are limited to the mainstem of Mill Creek and Sevenmile Creek, although surveys in other streams have detected Nashville crayfish and indicate consistent presence over time (USFWS 2017, pp. 29-30, 35-40). Between 1999 and 2001, surveys conducted within the mainstem and Sevenmile Creek led to overall estimates of 1,854 to 3,217 individuals and 404 to 1,425 individuals per 100 linear meters, respectively. (USFWS 2017b, p. 29). Long-term monitoring, conducted between 2011 and 2015, has documented a total of 1,763 crayfish per 100 linear meters at five main stem Mill Creek sampling sites. This long-term monitoring, conducted by the Nashville Zoo, found Nashville crayfish to be the predominant species, comprising more than 90 percent of all crayfish documented at all five sites surveyed. According to these surveys, the Nashville crayfish has remained stable throughout the Mill Creek watershed.

The Act directs us to determine whether any species is an endangered or a threatened species because of any factors affecting its continued existence. The SSA report documents the results of our comprehensive biological status review for the Nashville crayfish, including an assessment of the potential stressors to the species. The SSA report does not represent a decision by the Service on whether the species should be listed as an endangered or a threatened species under the Act. It does, however, provide the scientific basis for our regulatory decision, which involves the further application of standards within the Act and its implementing regulations and policies. The following is a summary of the key results and conclusions from the SSA report; the full SSA report can be found on the Southeast Region website at https://www.fws.gov/southeast/ and at http://www.regulations.gov under Docket No. FWS-R4-ES-2018-0062.

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

The SSA process can be divided into three sequential stages. During the first stage, we use the conservation biology principles of resiliency, redundancy, and representation (together, the 3Rs) to evaluate individual life-history needs. The next stage involves an assessment of the historical and current condition of species' demographics and habitat characteristics, including an explanation of how the species arrived at its current condition. The final stage of the SSA involves making predictions about the species' responses to positive and negative environmental and anthropogenic influences. This process uses the best available information to characterize viability as the ability of a species to sustain populations in the wild over time. We used this information to inform our decision in this proposed rule.

For the Nashville crayfish to maintain viability, its populations or some portion thereof must be resilient. Stochastic factors that have the potential to affect Nashville crayfish include impacts to water quality, particularly phosphorus loading, sedimentation, and significant alterations to dissolved oxygen.

Silt deposition in streams contributes to several of the impairments in the Mill Creek watershed, and can also be a risk factor for crayfish. Stream channelization and silt deposition has been reported to be directly responsible for the permanent loss of some crayfish populations (Reynolds et al. 2013, p. 197-218). As crayfish are primarily active at night, the chief requirement of all size classes is for hiding spaces during the daytime. Where loss of hiding spaces occurs through bank reconstruction or siltation from natural or human causes, the habitat's carrying capacity for crayfish diminishes (Reynolds et al. 2013, p. 197-218). Therefore, good quality habitat for Nashville crayfish has minimal silt deposition such that availability of vital hiding spaces, and thus carrying capacity, are maximized.

Dissolved oxygen (DO) levels are an important water quality parameter for all aquatic life, including crayfish. Oxygen is dissolved into the water in streams through diffusion, aeration, and as the waste product of plants that are photosynthesizing. The amount of DO found in water can vary due to several factors including water temperature, level of pollutants and water velocity. Extended periods of supersaturation can occur in highly aerated waters, often near hydropower dams and waterfalls, or due to excessive photosynthetic activity. Algae blooms can cause air saturations of over 100% due to large amounts of oxygen as a photosynthetic byproduct. This is often coupled with higher water temperatures, which also affects saturation (Fondriest 2013, entire). High levels of DO may be stressful to crayfish because of physiological effects, such as gas bubble disease, or because higher oxygen levels allow invasion of invasive crayfish species, who better tolerate higher DO concentrations. If DO levels are very low, it is harder for individual crayfish to take in oxygen, and in extreme cases the lack of DO results in death. Although the tolerance level of Nashville crayfish for DO is not known, levels below 2.0 mg/L typically result in invertebrates abandoning the area (Fondriest 2013, entire).

Other factors that influence the resiliency of Nashville crayfish populations include population size and the presence of slab rock (TDNA 2009, entire). Influencing those factors are elements of Nashville crayfish ecology ( e.g., dispersal and reproductive success) that determine whether populations can grow to maximize habitat occupancy, thereby increasing resiliency of populations (USFWS 2017b, p. 22). Slab rock is defined as moderately to large sized rocks in the stream channel, typically limestone, found on top of bedrock, cobble, or gravel. Adult Nashville crayfish occur in various habitats in streams with slab rocks or other debris for cover. Adults tend to be solitary, seeking cover under large rocks, logs, debris, or rubble; the largest individuals generally selected the largest cover available (USFWS 1987, entire). Cover, particularly presence of large rocks, is also important to Nashville crayfish (Cook and Walton 2008, p. 121). Nashville crayfish were found half of the time in runs, using rocks with a surface area of 0.05 m 2 (0.54 ft 2 ) as cover, and half of the time in pools, when cover rock area increased to 0.10 m 2 (1.1 ft 2 ). Larger rock areas may be needed in pools to decrease risk of predation, whereas smaller rock areas would provide adequate protection in runs (Cook and Walton 2008, p. 121). Reproductive females are typically found under large slab rocks. Females seek out large slab rocks when they are carrying eggs and young, and these secluded places are also needed for molting. Cover rocks of at least 0.02 m 2 (2.15 ft 2 ) may be important habitats for females releasing broods and for protection during molting after releasing broods (USFWS 1987, entire). Gravel-cobble substrate provided good cover for juveniles (Stark 1986, Miller and Hartfield 1985, entire).

Representation can be measured by the breadth of genetic or environmental diversity within and among populations, and gauges the probability that a species is capable of adapting to environmental changes. In the absence of species-specific genetic and ecological diversity information, we evaluated representation based on the extent and variability of habitat characteristics across the geographical range of the species.

For the Nashville crayfish to maintain viability, the species as a whole also needs to exhibit some degree of redundancy. We measured redundancy for Nashville crayfish in terms of the number and distribution of resilient populations across the range of the species. It is important to note that Nashville crayfish has a naturally limited range, so measures of redundancy reflect the distribution within a relatively small area.

The Nashville crayfish is restricted to the Mill Creek watershed, which we now understand to represent the species' historical range. For this assessment, we measured resiliency at the population segment level, but also reported resiliency in total stream miles across the species' range. Because resiliency is a population-level attribute, key to assessing it is the ability to delineate populations. Because there is insufficient information on dispersal and genetics to accurately delineate demographic populations for Nashville crayfish, we delineated population segments. These were delineated based on habitat quality ( i.e., presence of slab rock and qualitative assessments of water quality) and species occurrence data from natural heritage data of the Tennessee Department of Environment and Conservation (TDEC) and opinions of species experts. We identified 174 stream segments based on watershed features, stream characteristics, and expert opinion (USFWS 2017b, p. 19). This resulted in delineation of 10 population segments within 3 representative units: Upper Mill Creek, Middle Mill Creek, and Lower Mill Creek watershed catchments (Table 1; and Figure 1).

Element Occurrence (EO; an area of land or water where a species is or was present) data were available through TDEC Natural Heritage Data shapefiles. These data represent survey detections for Nashville crayfish conducted since 1985, and each EO has an associated EO viability score. The EO viability scores provide a succinct assessment of the estimated viability of the species, or an estimation of the likelihood that, if current conditions prevail, a species occurrence will persist for a period of time. The EO viability scores for Nashville crayfish were delineated by Service biologists following NatureServe descriptions (Hammerson et al. 2008) as follows:

• Excellent—species occurrence exhibits optimal or at least exceptionally favorable characteristics with respect to population size and/or quantity and quality of occupied habitat, and if current conditions prevail, the occurrence is very likely to persist for the foreseeable future ( i.e., at least 20-30 years).

• Good—species occurrence exhibits favorable characteristics with respect to population size and/or quantity and quality of occupied habitat, and if current conditions prevail, the occurrence is very likely to persist for the foreseeable future ( i.e., at least 20-30 years).

• Fair—species occurrence characteristics (size, condition, and landscape context) are non-optimal such that occurrence persistence is uncertain under current conditions, but may persist for the foreseeable future with appropriate management or protection.

• Poor—If current conditions prevail, occurrence has a high risk of extirpation because of small population size or area of occupancy, deteriorated habitat, poor conditions for reproduction, or other factors.

We looked at EO viability scores based on the element occurrence data, and elicited the opinions of Nashville crayfish experts as to how we should characterize resiliency of that population segment. The EO viability scores provided a succinct assessment of the estimated viability of the species, or an estimation of the likelihood that, if current conditions prevail, a species occurrence will persist for a period of time.

The EO data, combined with other survey efforts and expert opinion resulted in the delineation of 174 stream segments. These stream segments were scaled up to the population segment scale based on watershed features such as physical hydrology and stream characteristics, and species expert opinion, resulting in identification of 10 population segments. We categorized resiliency for each of these population segments using stream segment viability scores ( e.g., excellent, good, fair, poor, and uncertain) and expert opinion. We considered stream segment viability scores of excellent and good as a single category, with fair, poor, and uncertain being the other three stream viability scores used in the resilience categorization. We considered populations to be high resiliency when more than 50 percent of its stream segments had EO viability scores of Excellent or Good. Populations where greater than 50 percent of stream segments had EO viability scores of Fair were considered to be moderate resiliency. We considered populations to be low resiliency if more than 50 percent of its stream segments had Poor EO viability scores. Finally, for populations where over 50 percent of stream segment viability scores were uncertain, we used a combination of EO viability scores (where this was available) and expert opinion to determine whether they were high, moderate, or low resiliency. Within each of the 10 population segments, we calculated the total stream miles within each stream segment viability category to determine the proportion of various viability ranks represented (USFWS 2017b, p. 21).

Of the 10 population segments, currently six (145 stream miles; 76 percent of the total range) display high resiliency (likely to persist for at least 20 to 30 years); two (20 stream miles; 10 percent of the total range) display moderate resiliency (may persist for at least 20 to 30 years); and two (26.5 stream miles; 14 percent of the total range) display low resiliency (high risk of extirpation in 20 to 30 years).

We lack genetic and ecological diversity data to characterize representation for Nashville crayfish. In the absence of this information, we evaluated representation based on the extent and variability of habitat characteristics across the species' geographical range. For the Nashville crayfish, we characterized representative units by using physical stream hydrology, and measured representation as the number of resilient populations within three delineated representative units as originally proposed in Jones (2006, p. 6)—MCW-A or Upper, MCW-B or Middle, and MCW-C or Lower (see discussion and Table 1 above). The three units have different stream and watershed characteristics, such as stream order, surrounding drainage landscapes, depth, and flow, but are primarily delineated based on amount of development. The landscape in unit MCW-A is primarily agricultural, unit MCW-B encompasses the suburban subwatersheds, and unit MCW-C is primarily urban (Jones 2006, p. 6). The representative units are catchments created by using flow direction, flow accumulation, and a 3-meter resolution digital elevation model (Jones 2006, entire).

Differences in hydrology in these three areas could result in differences in how the species may adapt to changing environmental conditions. Because the mainstem population segment crosses representative unit boundaries, we report representation as the percentage of stream miles categorized as low, moderate, and high within each representative unit:

• Upper (MCW-A): There are 61.8 total stream miles within this unit. Of those, 49.6 miles (80 percent) are portions of population segments classified as high resiliency; 12.2 miles (20 percent) are classified as low resiliency.

• Middle (MCW-B): There are 72.6 total stream miles within this unit. Of those, 43.6 miles (60 percent) are portions of population segments classified as high resiliency; 19.7 miles (27 percent) are classified as moderate resiliency; and 9.3 miles (13 percent) are classified as low resiliency.

• Lower (MCW-C): There are 57.1 total stream miles within this unit. Of those, 52.1 miles (91 percent) are portions of population segments classified as high resiliency; 5.0 miles (9 percent) are classified as low resiliency.

For the Nashville crayfish, our expert noted that the sub-watersheds we used were a good way to spatially delineate adaptive capacity. In fact, our spatial analysis was confirmed by a dissertation done previously that looked at variability within that watershed discussed in the SSA (Jones 2006, entire). From north to south the species clearly showed some adaptive capacity, as evidenced by the differences in habitat from north to south. Because of this we established the three representative units (upper, middle, lower).

To measure representation we then looked at the number of resilient stream segments and their resiliency score, assuming that a high number of stream segments in a high resiliency status means there is sufficient representation in that unit. If, for example, we had a representative unit with a majority of low resiliency stream segments we would then be concerned the species may lose some of its representation. As this was not the case, we believe that representation is not limiting the species' ability to maintain resilient populations. We therefore conclude that representation is high because the majority of stream miles in each segment are highly resilient.

For the Nashville crayfish to maintain viability, the species needs to exhibit some degree of redundancy. Redundancy describes the ability of a species to withstand catastrophic events. Measured by the number of populations, their resiliency, and their distribution (and connectivity), redundancy gauges the probability that the species has a margin of safety to withstand or return from catastrophic events (such as a rare destructive natural event or episode involving many populations). We report redundancy for Nashville crayfish as the total number of population segments and their distribution within and among representative units.

As discussed above, there are 10 population segments distributed across the range of the Nashville crayfish between the three representative units. Six of these population segments are highly resilient; two population segments are moderately resilient; and two population segments are of low resiliency. As also discussed above, there is adequate redundancy based on the distribution in the three representative units for the Nashville crayfish to withstand catastrophic events. The catastrophic events likely to affect the Nashville crayfish are spills associated with increasing human population and urbanization (see Summary of Threats below). However, the likelihood of such events occurring is not equal across the three units: They are far more likely to occur in the lower, highly urbanized unit MCW-C (the farthest downstream) and much less likely to occur in the middle (MCW-B) and upper (MCW-A) units because these units are less developed. Therefore, if a spill were to occur, it is more likely to affect only one unit and not all three.

In any case, even in the unlikely circumstance a catastrophic event would impact the entire range of the species, the Nashville crayfish has demonstrated a high degree of resistance to disturbance. In the Mill Creek watershed, there have been frequent spills/releases of raw sewage and hazardous substances, particularly in the lower reaches (USFWS 2018, p. 50-51). However, despite these events, the species has been found in large numbers at several locations that are already heavily developed. Although the Metropolitan Nashville area is experiencing significant growth, with numerous residential, commercial, utility, and other infrastructure developments occurring in the watershed, Nashville crayfish populations have been documented to be stable or increasing in size.

Based on our analysis of these three factors, the species demonstrates high viability, indicating that it is likely to persist in the future. Since the Nashville crayfish was listed, individuals have been found in large numbers at several locations in the watershed that are heavily developed and subjected to consistent storm water and sediment inputs, as well as frequent spills and releases of raw sewage and hazardous substances. Despite these stressors, Nashville crayfish density has increased in all three representative units (McGinnity 2016, p. 3)

Section 4(a)(1) of the Act directs us to determine whether any species is an endangered species or a threatened species because of any of the following factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence.

In the assessment report, we reviewed the factors ( i.e., threats, stressors) that could be affecting the Nashville crayfish now or in the future. However, in this proposed rule, we will focus our discussion on those factors that could meaningfully impact the status of the species. The primary risk factor affecting the status of the Nashville crayfish is development in the Mill Creek watershed that results in destruction or alteration of habitat. This was a primary factor in our decision to list the species in 1986. Specifically, increased development in the watershed leads to increased impervious cover, which in turn often leads to water quality deterioration. This takes the form of siltation, stream alteration, and urban runoff (particularly of phosphorus), resulting from development in Nashville and surrounding urbanized areas, all of which have the potential to negatively impact the Nashville crayfish. Secondary risk factors include the species' limited distribution, which makes it vulnerable to catastrophic events, such as chemical spills or other contamination sources. Development in the watershed can also increase the probably of catastrophic spills as well as increase road density and create new contaminant sources. Competition with invasive crayfish species could also be problematic, but presently, this is not a known threat for the species. Similarly, climate change and its associated effects will not have a negative impact on the Nashville crayfish now or in the foreseeable future.

The primary threat to the continued existence of the Nashville crayfish is still development in the Mill Creek watershed that results in destruction or alteration of the aquatic habitat. The population of Davidson County grew by 5.1 percent between 2010 and 2013. Adjacent Williamson County grew by 8.6 percent in the same time period (USFWS 2017a, p. 12). As Nashville and the surrounding areas have grown, commercial and residential development has increased within the Mill Creek watershed. Areas in the upper reaches of the Mill Creek watershed that were once rural agricultural areas are now being developed for residential purposes. Development often results in removal of riparian vegetation and canopy cover over the stream that may result in bank collapse. Runoff from denuded areas can result in heavy input of sediment into the stream, excessive in-stream sediment deposition, and increased water turbidity and temperatures. Sediment has been shown to break down and or suffocate bottom-dwelling algae and other organisms by clogging gills and reducing aquatic insect diversity and abundance (Waters 1995, p. 251). We anticipate population growth in the Nashville metropolitan area to continue, with associated increases in development. Five of the ten counties in Tennessee with the highest projected growth rates through 2040—Williamson, Rutherford, Wilson, Robertson, and Sumner—are in the Nashville metropolitan area. Approximately 69 percent of the population growth in Tennessee from 2010 to 2040 is expected to occur in 10 counties across the state, including Davidson and Williamson counties (Boyd Center 2015, entire). However, despite the increased development, the species has been found in several locations and in large numbers.

Highway and road construction, as well as utility line construction and right-of-way maintenance, within and adjacent to streams, may also alter or destroy habitat. Additionally, short-term dewatering to excavate trenches for utility lines could also result in temporary loss of habitat. The settling and filling in of crevices and interstitial spaces with sediment under slab rocks is likely to result in increased biological oxygen demand and longer term or permanent loss of habitat for crayfish (Cook and Walton 2008, p. 121). These are all potential impacts to crayfish habitat. We know that these actions result in degradation of riparian areas and stream health, but there is uncertainty regarding how tolerant the Nashville crayfish is to such changes. The only area where we know the species was negatively impacted was near the airport where toxic releases caused abandonment of that stream reach. However, years later, the area was recolonized, albeit at a lower abundance (USFWS 2017b, p. 51).

To avoid direct adverse impacts to the crayfish and its habitat, developers increasingly use directional boring under the stream as a means of accomplishing crossings for utility and communication lines; however, if not done properly, boring can cause fracturing of the stream bottom. This can result in release of bentonite and other slurries as well as toxic materials from the bore hole into the stream. Dewatering of short or long reaches of the stream channel downstream from the fracture may also occur. Dewatering can be permanent if the fracture causes the entire surface flow to go underground. Materials released into the stream from bore holes range from inert slurries to potentially toxic chemicals and lubricants; however, inert slurry, if released in large amounts, could result in mortality to crayfish and other benthic fauna by smothering adults and juveniles. In 2000, during installation of fiber optic cables in the Mill Creek drainage, several incidents of fracturing occurred resulting in the release of large amounts of bentonite slurry into the streams. In 2013, a Piedmont Natural Gas Pipeline boring under Sevenmile Creek impacted its tributary, releasing a bentonite slurry that resulted in mortality of six individual crayfish. Due to these incidents, areas where known bedrock fracturing potential exists are now being trenched (surface cut) for projects involving utility line crossings (USFWSb 2017, p. 52).

Another potential threat to the species' continued existence is the improper use or overuse of lawn pesticides and fertilizers. Intentional or inadvertent application of chemicals to the stream or runoff from yards after application has resulted in significant mortality of aquatic organisms, including Nashville crayfish. We have received periodic reports of mortality of stream fauna that likely resulted from input of pesticides into streams in the Mill Creek watershed. This threat is likely to increase in the future as residential development increases (USFWS 2017b, p. 50).

Additionally, there have been consistent stormwater and sediment inputs to the Mill Creek watershed, as well as frequent spills/releases of raw sewage and hazardous substances, yet the Nashville crayfish persists in high numbers. The species exhibits a high degree of resistance to disturbance, indicating that the species has a low susceptibility to threats and high degree of stability (USFWS 2017a, p. 16).

As of 2014, numerous stream segments in Mill Creek and its tributaries were listed as impaired on the State of Tennessee's 303(d) list (TDEC 2018, entire). Impairment of stream reaches in the drainage is the result of low dissolved oxygen, siltation, removal of riparian vegetation, nutrient enrichment and high bacteria levels from stormwater discharges, sewage collection system failures, land development, and unrestricted cattle access (TDEC 2018, entire).

Our analysis of threats and risk factors, as well as the past, current, and future influences on what the Nashville crayfish needs for long term viability revealed that the most risk to future viability of the species is posed by water quality issues: The risk of a catastrophic spill and impairment of water quality associated with increasing human populations and urbanization. However, the species has been found in large numbers at several locations that are already heavily developed, and the species has been found in several additional tributaries to Mill Creek since its original listing under the ESA (USFWSb 2017, p. 73). Although the Metropolitan Nashville area is experiencing significant growth, with numerous residential, commercial, utility, and other infrastructure developments occurring in the watershed, Nashville crayfish populations have been documented to be stable or increasing in size (USFWS 2017b, entire). Additionally, there have been consistent stormwater and sediment inputs to the Mill Creek watershed, as well as frequent spills/releases of raw sewage and hazardous substances, yet the Nashville crayfish persists in high numbers. The species exhibits a high degree of resistance to disturbance, indicating the species has a low susceptibility to threats and a high degree of stability.

We have received reports over the past five years (2010-2015) that fish and aquatic invertebrates, including Nashville crayfish, are being harvested from Mill Creek for food (USFWS 2016, entire). Although we do not know the full impact of harvesting on the species at this time, populations are stable or improving across the range, indicating any harvesting that is occurring is not affecting population resiliency.

This factor was determined to not apply to the Nashville crayfish at the time of its 1986 listing. Currently, porcelain disease ( Thelohania contejeani), known from crustaceans in Australia, may pose a threat if infected crustaceans are accidently introduced into the Mill Creek watershed from the pet trade (see Factor E discussion, below). There is anecdotal evidence that porcelain disease was observed in Cambarus sphenoides on the Cumberland Plateau. The Cumberland Plateau is the southern part of the Appalachian Plateau in the Appalachian Mountains of the United States. It includes much of eastern Kentucky, Tennessee, and portions of Alabama and Georgia.

Although our earlier determination that a population of Nashville crayfish was displaced by another crayfish species turned out to be incorrect (see Background, above), competition or predation by released nonnative crayfish also could potentially pose a threat to the species in the future (Bizwell and Mattingly 2010, p. 359). Urbanization may result in increased numbers of scavengers, such as raccoons, that might prey on aquatic organisms. However, we currently have no information to indicate that disease or predation are threats to this crayfish.

In our discussions under Factors A, B, C, and E, we evaluate the significance of threats as mitigated by any conservation efforts and existing regulatory mechanisms. Where threats exist, we analyze the extent to which conservation measures and existing regulatory mechanisms address the specific threats to the species. Regulatory mechanisms, if they exist, may reduce or eliminate the impacts from one or more identified threats. The following provides an overview of the existing regulatory protections that protect the Nashville crayfish ecosystem and the Nashville crayfish.

Tennessee Wildlife Resources Agency has regulations in place to address the collection of baitfish, including amphibians and crayfish, which specifically prohibit the taking of and possession of crayfish from Mill Creek and its tributaries in Davidson and Williamson Counties (TWRA 1994, rule 1660-1-26-.04). The Tennessee Fish and Wildlife Commission also issued a proclamation (TFWC 2014, p. 13-15) which states that the collection of crayfish from Mill Creek in Davidson and Williamson Counties is specifically prohibited. It is also prohibited to possess or use crayfish for bait in Mill Creek, which is key to preventing accidental introductions of nonnative species.

Currently there are no State laws that provide specific protection for the species' habitat. However, the CWA and the Tennessee Water Quality Control Act of 1977 provide water quality protections for streams in the State. Agencies implementing these laws routinely issue notices of violation (NOVs) when actions are reported that have adverse impacts on waters in the State. NOVs are typically issued after the fact— i.e., after destruction or alteration of the species and habitat has occurred. Agencies are not staffed to oversee, supervise, or inspect all of the actions for which permits have been issued. Also, penalties levied on violators by the State are likely not severe enough to deter future violations. Even if more drastic enforcement action is taken by Federal agencies, the time between the violation and conclusion of the law enforcement action is likely long enough to suppress the deterrent effect of the penalty.

TDEC and Metropolitan Nashville Water Services (MNWS) routinely issue CWA NOVs for incidents in the Mill Creek watershed. Service Law Enforcement personnel have assisted the State in numerous investigations. As an example, in 2011, a contractor constructing a replacement sewage forcemain bypassed a section of an existing sewage forcemain by pumping past the section of forcemain to be replaced. The pump failed, releasing a significant amount of sewage into Mill Creek. Crayfish mortality was observed; however, the Service did not pursue an enforcement action under the Act because this was an accidental release. The Service will continue to provide technical assistance to the state agency to address future incidents within the Mill Creek watershed. Mill Creek is currently listed as an impaired stream with the U.S. Environmental Protection Agency (EPA).

Although numerous NOVs have been issued in the Mill Creek watershed since 2009, State and Federal water quality laws have not prevented pollution from development activities or from municipal and industrial sources. Portions of Mill Creek and some of its tributaries are currently listed on TDEC's impaired stream list (TDEC 2018, in draft). State and Federal agencies have identified impairments to address which include low dissolved oxygen, siltation, other anthropogenic habitat alterations, Escherichia coli ( E. coli ), total phosphorus, nitrate-nitrite, and propylene glycol.

The CWA makes it unlawful to discharge any pollutant from a point source into navigable waters, unless a permit is obtained. Section 404 of the CWA establishes a program to regulate the discharge of dredged or fill material in waters of the United States, including wetlands. The basic purpose of the program is that no discharge of dredged or fill material may be permitted if: (1) A practicable alternative exists that is less damaging to the aquatic environment or (2) the nation's waters would be significantly degraded. An individual permit is required for potentially significant impacts. Individual permits are reviewed by the U.S. Army Corps of Engineers, which evaluates applications under a public interest review, as well as the environmental criteria set forth in the CWA Section 404(b)(1) Guidelines, regulations promulgated by EPA. For the Nashville crayfish, the Corps permits would still be applicable and have relevant conditions. Furthermore, through our authorities under the Fish and Wildlife Coordination Act, the Service will provide technical assistance to the Corps during the permit review process. The state would also require Aquatic Resource Alteration Permits with conditions as well.

TDEC and the Service conducted a natural resource damage assessment (NRDA) and developed specific recommendations for stormwater treatment, monitoring, and compliance to the Metropolitan Nashville Airport Authority (MNAA). The purpose of the NRDA program is to restore natural resources injured as a result of oil spills or hazardous substance releases into the environment. The NRDA process evaluates and restores wildlife, habitats, and human resources impacted by oil spills, hazardous waste sites, and vessel groundings. Damage assessments provide the basis for determining the extent of restoration needed to address the public's natural resource losses. Should a future oil spill or hazardous substance release adversely affect the Nashville crayfish, the State, acting as a natural resource trustee, would assess injury and determine appropriate restoration. Once the damages are assessed, the NRDA Restoration Program negotiates legal settlements or takes other legal actions against the responsible parties for the spill or release. Funds from these settlements are then used to restore the injured resources at no expense to the taxpayer. Settlements often include the recovery of the costs incurred in assessing the damages. These funds may also be used to fund damage assessments in future incidents. Civil penalties were also assessed by TDEC (USFWS 2017b, p. 51). In cooperation with the Service and our partners, MNAA made substantial improvements to the stormwater collection and treatment system at the airport. The Service also provided specific recommendations to TDEC in the revision of MNAA's national pollutant discharge elimination system permit.

In this section, we will discuss other natural and man-made threats affecting the species including limited geographic range, vehicle accident spills, introduction of invasive crayfish and climate change.

The Nashville crayfish's limited geographic range and apparent small population size leave the species vulnerable to localized extinctions from accidental toxic chemical spills or other stochastic disturbances. Species that are restricted in range and population size are more likely to suffer loss of genetic diversity due to genetic drift, potentially increasing their susceptibility to inbreeding depression and decreasing their ability to adapt to environmental changes (Allendorf and Luikart 2007, p. 642). However, the Nashville crayfish has always occupied a small range. The crayfish is endemic to one watershed and still occupies the watershed. Highly resilient populations are more than likely to survive stochastic events and there are several highly resilient populations spread across the range.

Potential sources of such spills include accidents involving vehicles transporting chemicals over road crossings of streams and accidental or intentional release into streams of chemicals used in industrial, agricultural, or residential applications. Dead crayfish, including Nashville crayfish, have been collected downstream from construction sites and sewage releases on numerous occasions. For instance, in 2010 and 2011, discharges of propylene glycol de-icing fluids from the runways and tarmac at the Metropolitan Nashville International Airport adversely affected Sims Branch. Response agencies located affected Nashville crayfish. An attempt to translocate these individuals to the Cumberland River Aquatic Center failed, as the specimens died during transport.

With regard to the effects of invasive species on Nashville crayfish, most crayfish experts believe the introduction of invasive crayfish species is not occurring at a rate that could negatively impact native species, especially species with small distributions. In east Tennessee, there have been several introductions; the most serious is the Kentucky River crayfish ( O. juvenilis ), which has replaced the surgeon crayfish ( O. forceps ) in most of the Holston River system above Cherokee Reservoir. Although these water bodies are not within the Mill Creek system, it is conceivable that one of these extremely aggressive species could be introduced into that system and, once established, there is no known method to remove them. A simple aquarium release of a single ovigerous (egg bearing) female or other live specimens would be detrimental to the Nashville crayfish. However, we have no information suggesting the invasive crayfish are utilized in the local pet trade or as bait for fishing in the Mill Creek watershed.

Our analyses under the Act include consideration of ongoing and projected changes in climate. A recent compilation of climate change and its effects is available from reports of the IPCC (IPCC 2014, entire).

The IPCC concluded that evidence of warming of the climate system is unequivocal (IPCC 2014, pp. 2, 40). Numerous long-term climate changes have been observed including changes in arctic temperatures and ice, widespread changes in precipitation amounts, ocean salinity, and aspects of extreme weather including heavy precipitation and heat waves (IPCC 2014, pp. 40-44). Since 1970, the average annual temperature across the Southeast has increased by about 0.8 degrees Celsius (°C) with the greatest increases occurring during winter months. The geographic extent of areas in the Southeast region affected by moderate to severe spring and summer drought has increased over the past three decades by 12 and 14 percent, respectively (Karl et al. 2009, p. 111). These trends are expected to increase. Rates of warming are predicted to more than double in comparison to what the Southeast has experienced since 1975, with the greatest increases projected for summer months. Depending on the emissions scenario used for modeling change, average temperatures are expected to increase by 2.5 °C (lower emissions scenario, or IPCC SRES B1) to 5 °C (higher emissions scenario, or A2) by the 2080s (Karl et al. 2009, p. 111). While there is considerable variability in rainfall predictions throughout the region, increases in evaporation of moisture from soils and loss of water by plants in response to warmer temperatures are expected to contribute to increased frequency, intensity, and duration of drought events (Karl et al. 2009, p. 112).

There is also a growing concern that climate change may lead to increased frequency of severe storms and droughts (McLaughlin et al. 2002, p. 6074; Golladay et al. 2004, p. 504; Cook et al. 2004, p. 1015). Specific effects of climate change to crayfish habitat could include changes in stream temperature regimes; the timing and levels of precipitation, causing more frequent and severe floods and droughts; and alien species introductions. The following systematic changes are expected to be realized to varying degrees in the southeastern United States (NCILT 2012, p. 27; IPCC 2013, p. 7):

• More frequent drought;

• More extreme heat (resulting in increases in air and water temperatures);

• Flooding;

• More intense storms ( e.g., frequency of major hurricanes increases).

Despite the recognition of potential climate effects on ecosystem processes, there is uncertainty about what the exact climate future for the southeastern United States will be and how the ecosystems and species in this region will respond. Effects from climate change may also result from synergistic effects. That is, factors associated with a changing climate may act as risk multipliers by increasing the risk and severity of more imminent threats. As a result, impacts from rapid urbanization in the region might be exacerbated under long-term climate change. However, our approach to assessing the future condition of the species (see Future Conditions, below) is focused on a 20- to 25-year projection timeframe, because beyond this time, much uncertainty remains in both the degree of climate change and the species' response to changes in precipitation and temperature. We currently do not have information on the effect of future drought on specific stream segments the species occupies within the watershed. We also do not know the species temperature tolerance in response to long-term temperature increases within those streams. While the Nashville crayfish has multiple populations, future impacts due to the effects of climate change may reduce the resiliency of the species although the long-term effects remain unknown.

The Mill Creek Watershed Association (MCWA) was formed in 2009. The MCWA was strengthened in 2013 by the Cumberland River Compact with the support of the Tennessee Department of Agriculture Division of Forestry. The goal of the MCWA is to provide education and support for improving and protecting the Mill Creek Watershed. It endeavors to clean the water in Mill Creek, eliminate water pollution in local neighborhoods, and make the water safe for wildlife and human use. Focal activities for the MCWA include adopt a stream, riparian buffers, pollution prevention, rain gardens and barrels, and protecting the Nashville crayfish.

The Cumberland River Compact sponsors meetings every other month to bring all interested stakeholders together to reach a realistic approach to ensure a brighter future for the Mill Creek Watershed. These meetings provide stakeholders an opportunity to learn and provide perspective on current conditions, recommendations for improvements, and plan activities to address the current concerns and needs in the watershed. Current participants include Cumberland River Compact, Tennessee Department of Agriculture, Tennessee Division of Forestry, Metro Water Services, Nashville Zoo at Grassmere, Tennessee Department of Environment and Conservation, Tennessee Scenic Rivers Association, Tennessee Wildlife Resources Agency, the Corps, and the Service (USFWS 2017b, p. 57).

The Tennessee Stream Mitigation Program (TSMP) was established under the Tennessee Wildlife Resources Foundation in 2002, as a statewide in-lieu fee wetlands mitigation program. The TSMP provides mitigation for improving instream and riparian habitat, and overall water quality. It funds projects on significantly degraded streams to arrest bank erosion, improve water quality, and restore aquatic and riparian habitat. The TSMP has implemented 28 projects, restoring over 45 miles of degraded stream and over 800 acres of riparian habitat. One of these projects was initiated in the Mill Creek Watershed in 2009. The project encompassed 2,385 feet of Mill Creek near Nolensville in Williamson County, in the Upper Mill Creek segment (MCW-A). The existing channel was highly degraded due to channelization, vegetation removal, and infrastructure including roadway fills, and had been listed on the 303(d) list due to impacts from unrestricted livestock access. The primary goals of the project were to restore riparian buffer function by the excluding of livestock from the channel and riparian corridor which would reduce non-point source pollutants (such as sedimentation and nutrients). This work resulted in improved water quality, channel stability, aquatic habitat, and elimination of accelerated bank erosion problems; reestablishment of instream habitat by restoring bed form diversity in the form of riffles and pools; and enhancement of the riparian zone by planting native plants. The restored riparian buffer resulted in decreased stream temperatures, which improved water quality for the crayfish. The floodplain basins helped improve water quality, decrease peak flows, and provide valuable flood plain habitat (USFWS 2017b, p. 58). All of the goals of this project were met, which has improved the habitat for the Nashville crayfish, thereby increasing the resiliency of the species.

The Nashville Zoo at Grassmere has been heavily involved in Nashville crayfish recovery efforts. In March 2017, the zoo, in collaboration with the Cumberland River Compact, Tennessee Wildlife Resource Agency, and KCI Technologies Inc., removed two dams on Cathy Jo Branch in the Lower Mill Creek segment (USFWS 2017b, p. 58). The dams, which were located on zoo property, created a barrier to crayfish, small fish, and other small aquatic life, preventing the migration of aquatic species upstream and reducing the biodiversity of the aquatic systems. Dam removal generally allows for the migration of aquatic species that were previously blocked by dams within a watershed, including the Nashville crayfish, and improves aquatic biodiversity. These dam removals opened up 3 miles of habitat and restored the stream as a free-flowing system. Nashville crayfish now have access to 10 miles of creek and improved habitat and this reach is now occupied by a highly resilient population of Nashville crayfish.

The Nashville Zoo has also implemented a stormwater management project that benefits the Nashville crayfish and other aquatic organisms. The Nashville Zoo had a stormwater detention pond on the edge of its property that captured runoff from a large office park next door to the zoo, but several times a year, excess water was discharged from the pond's outlet pipe, where it carried sediment and other pollutants into Cathy Jo Branch. Runoff from the office park also damaged the perimeter fence and carried trash and debris into the pond. The project retrofitted the detention pond to modify the two inlet structures and expand the water holding capacity. In addition, the brushy area below the outfall pipe was transformed into an infiltration zone to slow, spread, and soak in the excess water discharges after rain events. This project has directly improved water quality in known occupied Nashville crayfish habitat.

In the SSA, our analysis of threats and risk factors, as well as the past, current, and future influences on what the Nashville crayfish needs for long-term viability, revealed that there are two factors that pose the largest risk to future viability of the species: The risk of a catastrophic spill and impairment of water quality (USFWS 2017b, p. 59). Both factors are primarily related to habitat changes. We did not assess overutilization for scientific and commercial purposes, disease, or competition with invasive crayfish because these risks do not appear to be occurring at levels that affect Nashville crayfish populations. Accordingly, the risk of a catastrophic spill and impairment of water quality, as well as management efforts (aside from those associated with the 2010 biological opinion with the Corps), were carried forward in our assessment of future conditions of Nashville crayfish populations.

We assessed viability under three scenarios—status quo, worst case, and conservation—projected over 20 to 25 years. We chose this timeframe as the “foreseeable future” for two reasons. First, the main threats influencing viability for the Nashville crayfish (the risk of a catastrophic spill and impairment of water quality) are all measurable within this timeframe. Also, the E.O. scores that underlie the resilience of the population segments were determined based on a 20-30 year future time horizon. Qualitative assessments of urban development for each population segment are based on the Slope, Land-use, Exclusion, Urban, Transportation and Hillshade (SLEUTH) model predictions (USFWS 2017b, p. 59). The next metric, element occurrence (E.O.), data were available through TDEC Natural Heritage Data shapefiles. These data represent survey detections for Nashville crayfish conducted since 1985, and each E.O. has an associated E.O. viability score. The E.O. scores provide a succinct assessment of the estimated viability or likelihood of persistence of the species; as such, the scores underlie the resilience of the population segments. These scores were determined based on a 20- to 30-year future time horizon based on Nature Serve criteria. Because occurrence ranks are used to represent the relative overall “quality” of an occurrence as it currently exists, they are based solely on criteria that reflect the present status of that occurrence (Hammerson et al. 2008, entire). Therefore, based on the species' lifespan and the uncertainty in the models, a 20- to 25-year time frame for “foreseeable future” is appropriate for determining whether threatened status is appropriate for this species.

The three scenarios are intended to capture the range of changes, likely to be observed in the Mill Creek watershed, to which the Nashville crayfish will be exposed. These scenarios considered the three elements described above: Water quality, catastrophic spill risk, and conservation effort. While we considered these scenarios to be plausible, we acknowledge that each scenario has a different probability of materializing at different times. To account for this difference in probability, a range of probabilities was used to describe the likelihood each scenario will occur. We assumed rates of increase in human population and, therefore, increase in impervious cover, to be similar across all three scenarios. The differences in the likelihood of the three scenarios represented our best assessment of: (1) The degree to which projected increases in human population and impervious cover will manifest in water quality degradation and increased spill risk; (2) how the Nashville crayfish will actually respond to these changes based on past observations; and (3) how likely conservation measures will be implemented within population segments in the Mill Creek watershed. For more information about how the scenarios were developed, please see the SSA (USFWS 2017b, pp. 60-61).

Under the status quo scenario in the SSA, we analyzed the factors that influence populations of Nashville crayfish ( e.g., human population growth, urban development, impervious cover, and catastrophic spills) would continue at current rates. Human population increases at currently predicted rates would lead to substantial increases in urban development and impervious cover in a few high-intensity areas throughout the watershed ( e.g., MCW-B) (USFWS 2017b, p. 61). In this scenario, the risk of a contaminant spill increased in and around the high urban growth areas of development and resulted in some decreases in water quality. Impairment of stream reaches in the drainage was the result of low dissolved oxygen, siltation, removal of riparian vegetation, nutrient enrichment and high bacteria levels from stormwater discharges, sewage collection system failures, land development and unrestricted cattle access (TDEC 2014, entire). However, the species is currently thriving in very poor quality streams in downtown Nashville, it has shown since its listing that it is more resilient to the threat of development than previously thought and we would expect it to respond in the same manner to future development stressors. Therefore, under the status quo scenario, the Nashville crayfish's viability would remain high. There would be a small loss in population resiliency (Owl Creek drops from moderate to low; Upper Mill Creek System drops from high to moderate), but with no loss in redundancy. Representation would be impacted, in that the two populations predicted to lose resiliency were both in the same representative unit, but all representative units were predicted to retain the same number of populations.

Under the worst case scenario, the factors that influence populations of Nashville crayfish would continue at increased rates compared to the status quo scenario. Human population would increase at currently predicted rates, which would lead to substantial increases in urban development and impervious cover in the same high-intensity areas throughout the watershed as the status quo scenario. However, in this scenario, effects associated with increasing human populations and impervious cover (water quality degradation and catastrophic spill risk) would be much greater in magnitude compared to the status quo scenario. The risk of a contaminant spill increased significantly in the urban and suburban high-growth areas and resulted in substantial decreases in water quality in several population segments ( e.g., MCW-C).

We included this scenario because there is uncertainty as to the magnitude of effects on water quality, spill risk associated with a growing human population, and subsequent increases in impervious cover, as well as uncertainty concerning how fast the development will take place. However, even with this higher risk, our modeling predicted that there would only be a moderate loss in Nashville crayfish population resiliency (Mainstem, Sevenmile, Collins Creek, and Upper Mill Creek System drop from high to moderate; Owl Creek drops from moderate to low; possible extirpation of Sims Branch in the Lower Mill Creek Streams population segment), with no loss in redundancy. Also, all representative units were predicted to retain the same number of populations, although many at a lower resilience level. Therefore, under the worst case scenario, the Nashville crayfish's viability would sustain moderate losses in population resiliency (Mainstem, Sevenmile, Collins Creek, and Upper Mill Creek System drop from high to moderate; Owl Creek drops from moderate to low; possible extirpation of Sims Branch in the Lower Mill Creek Streams population segment), with no loss in redundancy. All representative units are predicted to retain the same number of populations, although many at a lower resilience level.

Under the conservation scenario, the factors that influence populations of Nashville crayfish would continue at current rates, but targeted conservation, such as the TSMP (see Conservation Measures that Affect the Species, above), would ameliorate some of the associated impacts of water quality degradation. Human population increases would continue at currently predicted rates, leading to increases in urban development and impervious cover in a few high-intensity areas throughout the watershed. In this scenario, the risk of a contaminant spill would increase in and around some of the urban growth areas, and increases in population and impervious cover would result in some decreases in water quality. However, this scenario assumes some targeted conservation actions would be implemented, including riparian protection and restoration; therefore, water quality degradation in some streams would be reduced (USFWS 2017b, p. 61-62). Because of the implementation of these conservation measures, our modeling predicted that there would be no losses in resiliency, redundancy, or representation for the Nashville crayfish. The Lower Mill Creek streams were predicted to increase their resiliency due to targeted conservation implemented by the City of Nashville, and minimization of spills by the nearby Nashville International airport. Upper Mill Creek Streams were predicted to increase their resiliency due, in part, to targeted conservation implemented by the TSMP. Therefore, under the conservation scenario, the Nashville crayfish's viability sustains no losses in resiliency, redundancy, or representation. In fact, the Lower Mill Creek Streams are predicted to increase their resiliency due to targeted conservation implemented by the City of Nashville, and minimization of spills by the nearby Nashville International airport. Upper Mill Creek Streams are predicted to increase their resiliency due, in part, to targeted conservation implemented by the Tennessee Stream Mitigation Program.

The Nashville Crayfish Recovery Plan was issued by the Service on August 12, 1987, and revised on February 8, 1989. The recovery plan did not contain delisting criteria, as it was thought unlikely that the species would be sufficiently protected from all threats associated with the rapid development occurring in the Nashville area such that it could be delisted. Furthermore, no quantitative recovery level was defined due to the lack of data on historical population levels, population trends, and apparent historical population size. However, the recovery plan provided the following criteria that were to be met before reclassification to a threatened species could be considered (USFWS 1989, p. 4):

• Criterion 1. Through protection of the existing Mill Creek basin population and by reintroduction of the species into some as yet unknown historic habitat or by discovery of an additional distinct population, there must exist two distinct viable populations . This criterion has been partially met due to implementation of monitoring of water quality and, where needed, initiation of enforcement actions by State and local agencies to ensure the protection of the existing Mill Creek Basin population. However, we believe this criterion is not appropriate given the best available information concerning the historical range of the species. At the time of listing, the species was thought to exist in multiple locations outside the Mill Creek drainage, but subsequently those determinations were found to be in error (see Background, above). Current information indicates that the species is endemic to the Mill Creek drainage. Thus, we have determined that it is no longer appropriate to introduce or recover the species in locations outside of the Mill Creek drainage. Within the Mill Creek watershed, the species is present throughout the drainage; therefore, if some portion of the range was impacted by a catastrophic event, the impacted area could be repopulated. Therefore, we also have determined that the intent of this criterion—to provide an additional refuge—is not necessary.

• Criterion 2. A newly discovered or reintroduced population must (a) have been established or be self-sustaining for a minimum of 10 years without augmentation from an outside source, (b) represent a significant component of the crayfish fauna throughout most of that creek, and (c) be stable or increasing in numbers . For the same reason as for Criterion 1, this criterion has not been met and is likely unachievable. No new populations of the species have been reintroduced. A population of the species has not been discovered outside of the Mill Creek drainage (USFWS 2017b, p. 14). As described above, we have determined that the establishment of a second population outside of the Mill Creek drainage is not appropriate. The Nashville crayfish has faced stressors from degraded water quality and potential catastrophic spills associated with increasing human populations and urbanization. However, the species has been found in large numbers at several locations that are already heavily developed. The Nashville crayfish population is stable or increasing throughout its range despite significant human population growth, consistent storm water drainage, and frequent spills. Furthermore, our analysis of possible future scenarios demonstrated that, even under a worst-case scenario, the species will remain viable in the Mill Creek watershed within the foreseeable future.

• Criterion 3. The species and its habitat in the Mill Creek system and one other system are protected from human-related and natural threats that would be likely to cause the species' extinction in the foreseeable future . This criterion has been partially met. Service biologists have worked with other agencies, groups, and individuals to protect the species and its habitat from human-related threats within the Mill Creek watershed. During project reviews for routine Corps' section 404 permits and TDEC aquatic resource alteration permits, recommended measures to protect the species are included as permit conditions. These permits will remain applicable upon the delisting of the species. Furthermore, we have authority under the FWCA to provide technical assistance to the Corps during permit reviews. We also routinely interact with Metro Water Services on stormwater best management practices and compliance activities for project developments in the watershed. This, too, will continue upon delisting. Finally, the Service is also actively involved with nongovernmental organizations to address potential habitat loss for the species. (USFWS 2017a, p. 16).

In summary, we consider the recovery plan to be outdated. We now know the species is endemic only to the Mill Creek watershed; therefore, establishing a population outside of the Mill Creek watershed is not appropriate, and we will not find additional populations outside of the watershed. The SSA highlights that Nashville crayfish exhibits a high degree of resistance to disturbance, indicating the species has a low susceptibility to threats and a high degree of stability. In fact, the Nashville crayfish is widely distributed, stable and increasing throughout most of its range. The species is also more resilient to poor water quality conditions that we understood at the time the recovery plan was developed.

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species meets the definition of “endangered species” or “threatened species.” The Act defines an “endangered species” as a species that is “in danger of extinction throughout all or a significant portion of its range,” and a “threatened species” as a species that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” We may determine that a species is an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence.

We must consider these same five factors in reclassifying or delisting a species. In other words, for species that are already listed as endangered or threatened, the analysis for a delisting due to recovery must include an evaluation of the threats that existed at the time of listing, the threats currently facing the species, and the threats that are reasonably likely to affect the species in the foreseeable future following the delisting or downlisting and the removal of the Act's protections.

After evaluating threats to the species and assessing the cumulative effect of the threats under the section 4(a)(1) factors, we find that the Nashville crayfish is not in danger of extinction throughout all of its range. As discussed above, the Service has applied these listing factors to the Nashville crayfish. The Service finds that the present or threatened destruction, modification, or curtailment of its habitat (Factor A), which was the basis for listing the species when it was thought to have been extirpated from three of the four watersheds in which it historically occurred, is no longer a threat to the continued existence of the Nashville crayfish, and we do not expect it to be a threat in the future. The Nashville crayfish has faced and will face stressors from degraded water quality and potential catastrophic spills associated with increasing human populations and urbanization. However, the species has been found in large numbers at several locations that are already heavily developed. The Nashville crayfish population is stable or increasing throughout its range despite significant human population growth, consistent storm water drainage and frequent spills. Targeted conservation has ameliorated many threats associated with reductions in water quality, and under a best-case scenario will continue to do so, but even without these efforts, all population segments are predicted to at least persist within the foreseeable future.

Overutilization for commercial, sporting, scientific, or educational purposes is considered to be a potential threat to the Nashville crayfish (Factor B). Over the period from 2010 to 2015 we received reports that fish and aquatic invertebrates, including the Nashville crayfish, have been harvested from Mill Creek for food. We currently do not know the extent to which this is occurring; however, we conclude that harvesting presently is not a threat to the species because the species possesses multiple resilient populations across its range.

Disease and predation (Factor C) were not considered to be threats to the Nashville crayfish at the time of listing. We have no new information indicating that disease or predation has become a significant threat to the species.

The Nashville crayfish and its habitat have been and will continue to be protected under the CWA, Tennessee Water Quality Control Act, and the Tennessee Nongame and Endangered or Threatened Wildlife Species Conservation Act. These existing regulatory mechanisms (Factor D) are adequate to protect the Nashville crayfish now and in the future based on the crayfish populations continuing to be stable throughout the Mill Creek watershed.

The Nashville crayfish has demonstrated the ability to adapt to changing environmental conditions over time (resiliency) from both anthropogenic and natural disturbances. Since the species was listed as an endangered species in 1986, it has demonstrated a high degree of viability even in stream segments that are impaired. Based on the biology of the species and the documented responses to the development in the Nashville metropolitan area since listing, we expect the species to respond the same way in the foreseeable future. In addition, although there is no genetic information available for the Nashville crayfish, there are no indications of a decreased fitness or that a lack of representation is adversely affecting species mortality or limiting its ability to adapt. Although the Nashville crayfish is an endemic species, residing only in the Mill Creek watershed, no immediate risk of extirpation has been identified. The fact that the species is found throughout Mill Creek watershed and persists even in stream segments of poor water quality indicates a large, well-represented population with demonstrated resiliency to threats.

Because the Nashville crayfish is considered self-sustaining, contains a relatively large number of individuals, and has demonstrated high resilience and viability, we expect this population to persist into the future. The species is considered abundant within its habitat, which consists of adequate area and quality to maintain survival and reproduction in spite of disturbances. It appears to have highly resilient population attributes ( e.g., ability to use storm water detention ponds). Nashville crayfish are represented across the entire watershed, and no extirpations have been recorded anywhere in the species' historical range; therefore, we conclude it has high redundancy across the historical and current range.

Even with continued risks from degraded water quality and catastrophic spills (Factor E), the best scientific and commercial information indicates that this species is viable and will remain viable in the foreseeable future. Therefore, this species is no longer in danger of extinction, nor is it likely to become in danger of extinction in the foreseeable future. Based on the analysis above and after considering the best available scientific and commercial information, we conclude that the Nashville crayfish does not currently meet the Act's definition of either an endangered or a threatened species throughout its range.

Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range (SPR). Where the best available information allows the Services to determine a status for the species rangewide, that determination should be given conclusive weight because a rangewide determination of status more accurately reflects the species' degree of imperilment and better promotes the purposes of the Act. Under this reading, we should first consider whether the species warrants listing “throughout all” of its range and proceed to conduct a “significant portion of its range” analysis if, and only if, a species does not qualify for listing as either an endangered or a threatened species according to the “throughout all” language.

Having determined that the Nashville crayfish is not in danger of extinction or likely to become so in the foreseeable future throughout all of its range, we now consider whether it may be in danger of extinction or likely to become so in the foreseeable future in an SPR. The range of a species can theoretically be divided into portions in an infinite number of ways, so we first screen the potential portions of the species' range to determine if there are any portions that warrant further consideration. To do the “screening” analysis, we ask whether there are portions of the species' range for which there is substantial information indicating that: (1) The portion may be significant; and, (2) the species may be, in that portion, either in danger of extinction or likely to become so in the foreseeable future. For a particular portion, if we cannot answer both questions in the affirmative, then that portion does not warrant further consideration and the species does not warrant listing because of its status in that portion of its range. We emphasize that answering these questions in the affirmative is not a determination that the species is in danger of extinction or likely to become so in the foreseeable future throughout a significant portion of its range—rather, it is a step in determining whether a more detailed analysis of the issue is required.

If we answer these questions in the affirmative, we then conduct a more thorough analysis to determine whether the portion does indeed meet both of the SPR prongs: (1) The portion is significant and (2) the species is, in that portion, either in danger of extinction or likely to become so in the foreseeable future. Confirmation that a portion does indeed meet one of these prongs does not create a presumption, prejudgment, or other determination as to whether the species is an endangered species or threatened species. Rather, we must then undertake a more detailed analysis of the other prong to make that determination. Only if the portion does indeed meet both SPR prongs would the species warrant listing because of its status in a significant portion of its range.

At both stages in this process—the stage of screening potential portions to identify any portions that warrant further consideration and the stage of undertaking the more detailed analysis of any portions that do warrant further consideration—it might be more efficient for us to address the “significance” question or the “status” question first. Our selection of which question to address first for a particular portion depends on the biology of the species, its range, and the threats it faces. Regardless of which question we address first, if we reach a negative answer with respect to the first question that we address, we do not need to evaluate the second question for that portion of the species' range.

For Nashville crayfish we chose to evaluate the status question ( i.e., identifying portions where the Nashville crayfish may be in danger of extinction or likely to become so in the foreseeable future) first. To conduct this screening, we considered whether the threats are geographically concentrated in any portion of the species' range at a biologically meaningful scale. We examined the following threats: Human population growth, urban development, impervious cover, and catastrophic spills including cumulative effects. We found no concentration of threats in any portion of the Nashville crayfish range at a biologically meaningful scale.

If both (1) a species is not in danger of extinction or likely to become so in the foreseeable future throughout all of its range and (2) the threats to the species are essentially uniform throughout its range, then the species could not be in danger of extinction or likely to become so in the foreseeable future in any biologically meaningful portion of its range. For the Nashville crayfish, we found both: The species is not in danger of extinction or likely to become so in the foreseeable future throughout all of its range, and there is no geographical concentration of threats so the threats to the species are essentially uniform throughout its range. Therefore, no portions warrant further consideration through a more detailed analysis, and the species is not in danger of extinction or likely to become so in the foreseeable future in any significant portion of its range. Our approach to analyzing SPR in this determination is consistent with the court's holding in Desert Survivors v. Department of the Interior, No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018).

Our review of the best available scientific and commercial information indicates that the Nashville crayfish is not in danger of extinction nor likely to become endangered within the foreseeable future throughout all or a significant portion of its range. Therefore, we find that the Nashville crayfish does not meet the Act's definition of an endangered species or of a threatened species, and we propose to remove the Nashville crayfish from the List of Endangered and Threatened Wildlife.

This proposal, if made final, would revise 50 CFR 17.11(h) to remove the Nashville crayfish from the Federal List of Endangered and Threatened Wildlife. The prohibitions and conservation measures provided by the Act, particularly through sections 7 and 9, would no longer apply to this species. Federal agencies would no longer be required to consult with the Service under section 7 of the Act in the event that activities they authorize, fund, or carry out may affect Nashville crayfish. There is no critical habitat designated for this species.

Section 4(g)(1) of the Act requires us to monitor for not less than 5 years the status of all species that are delisted due to recovery. Post-delisting monitoring (PDM) refers to activities undertaken to verify that a species delisted due to recovery remains secure from the risk of extinction after the protections of the Act no longer apply. The primary goal of PDM is to monitor the species to ensure that its status does not deteriorate, and if a decline is detected, to take measures to halt the decline so that proposing it as an endangered or a threatened species is not again needed. If at any time during the monitoring period, data indicate that protective status under the Act should be reinstated, we can initiate listing procedures, including, if appropriate, emergency listing. At the conclusion of the monitoring period, we will review all available information to determine if relisting, the continuation of monitoring, or the termination of monitoring is appropriate.

Section 4(g) of the Act explicitly requires that we cooperate with the States in development and implementation of PDM programs. However, we remain ultimately responsible for compliance with section 4(g) of the Act and, therefore, must remain actively engaged in all phases of PDM. We also seek active participation of other entities that are expected to assume responsibilities for the species' conservation after delisting.

Concurrent with this proposed delisting rule, we announce the draft plan's availability for public review at http://www.regulations.gov under Docket No. FWS-R4-ES-2018-0062. Copies can also be obtained from the U.S. Fish and Wildlife Service, Tennessee Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ). We seek information, data, and comments from the public regarding this proposed delisting of the Nashville crayfish and the PDM plan. We are also seeking peer review of the draft PDM plan concurrently with this comment period. We anticipate finalizing the PDM plan, considering all public and peer review comments, prior to making a final determination on the proposed delisting rule.

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

(a) Be logically organized;

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

(c) Use clear language rather than jargon;

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

(e) Use lists and tables wherever possible.

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

We have determined that we do not need to prepare an environmental assessment or environmental impact statement, as defined in the National Environmental Policy Act (42 U.S.C. 4321 et seq. ), in connection with regulations adopted pursuant to section 4(a) of the Endangered Species Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes. There are no tribal interests associated with this proposed rule.

A complete list of references cited is available on the internet at http://www.regulations.gov under Docket No. FWS-R4-ES-2018-0062 and upon request from the Field Supervisor, Tennessee Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT , above).

The primary authors of this proposed rule are staff members of the Service's Southeastern Region Recovery Team and the Tennessee Ecological Services Field Office.

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