FSIS administers a regulatory program under the Federal Meat Inspection Act (FMIA) (21 U.S.C. 601 et seq. ) to protect the health and welfare of consumers. FSIS is responsible for ensuring that the nation's commercial supply of meat and meat food products is safe, wholesome, not adulterated, and correctly labeled and packaged. Under the FMIA, FSIS has broad authority to promulgate rules and regulations necessary to carry out this mission (21 U.S.C. 621). However, like all executive branch agencies, FSIS must also prudently manage the costs associated with governmental imposition of private expenditures required to comply with its regulations (Executive Order (E.O.) 13771). FSIS, therefore, has a responsibility to identify and eliminate burdensome regulations that are not necessary to ensure the safety of meat and meat food products.

The Federal meat inspection regulations govern the saving of livestock blood for edible purposes (9 CFR 310.20). Prior to 1974, the regulations allowed establishments to collect edible blood from all livestock, except swine. However, in 1974, the Agency promulgated 9 CFR 310.20, which removed the swine blood prohibition, finding that it was not necessary for food safety (39 FR 1973, January 16, 1974). In the 1974 rule, the Agency also reasoned that the prohibition was burdensome, in that it denied specialty food producers a source of swine blood for their products.

There have been no substantive changes governing the saving of livestock blood since 1974. Since that time, 9 CFR 310.20 allows establishments to save edible blood from all livestock, including swine, provided the animals' carcasses are inspected and passed and the blood is collected, defibrinated, and handled in a manner so as not to render it adulterated under the FMIA. Defibrination is the process of preventing fibrin from forming in blood—fibrin being an insoluble protein that causes blood to coagulate. Defibrination, therefore, results in blood that does not clot and remains in a liquid state. As explained below, FSIS is proposing to remove the defibrination requirement from the Federal meat inspection regulations for many of the same reasons it eliminated the swine blood prohibition in 1974.

FSIS is proposing to remove the defibrination requirement from 9 CFR 310.20. Blood collected from inspected and passed livestock carcasses and handled in a manner so as not to render it adulterated under the FMIA is safe for human consumption. FSIS conducted a review of the peer-reviewed literature regarding coagulated, i.e. non-defibrinated, blood and did not identify any scientifically supportable food safety concerns. Thus, FSIS believes coagulated blood, like fluid blood, is safe for human consumption, provided the blood is saved from inspected and passed animals, and the blood is otherwise produced and prepared in compliance with all other FSIS regulations. Therefore, FSIS believes the defibrination requirement is not necessary to ensure food safety in accordance with the FMIA. 1

Furthermore, FSIS has become aware that some establishments are interested in collecting coagulated blood for use in human food products, including specialty and ethnic food products that require coagulated blood as an ingredient. Such foods include variations of blood sausage, blood pudding, and blood tofu. The current defibrination requirement denies specialty and ethnic food producers a source of coagulated blood, thereby placing an unnecessary economic burden on them and on the livestock slaughter establishments that could provide coagulated blood. This proposed rule would rectify that situation.

FSIS is proposing to remove the word “defibrinated” from the codified regulations. Under the proposed rule, official establishments would still have the option to defibrinate blood, provided they meet all other requirements in 9 CFR 310.20. The regulations would continue to prohibit the defibrination of blood by hand. The regulations would also continue to require the use of anticoagulants that meet cited requirements in title 9 and title 21 of the Code of Federal Regulations.

E.O.s 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This proposed rule has been designated as a “non-significant” regulatory action under section 3(f) of E.O. 12866. Accordingly, the rule has not been reviewed by the Office of Management and Budget (OMB) under E.O. 12866.

From October 2015 to December 3, 2019, FSIS received 15 askFSIS  2 questions about defibrination from 14 slaughter establishments. Therefore, FSIS assumes that at least 14 establishments would be affected by this proposed rule.

There are no expected costs associated with this proposed rule. If this proposed rule is finalized, FSIS would allow coagulated blood to be saved for edible purposes.

The proposed rule would benefit slaughter establishments that manufacture livestock blood and processing establishments that use the blood in their products, such as blood sausage, blood tofu, and blood pudding. This proposed rule would allow slaughter establishments manufacturing livestock blood for edible purposes to package and sell the item in its customary coagulated form, enhancing the marketability for these niche products. In addition, removing the unnecessary, prescriptive requirements would allow establishments additional flexibility to be innovative and to operate in the most efficient manner.

Removing the regulation that requires establishments to defibrinate livestock blood is expected to result in industry cost savings. Establishments would reduce anti-coagulant solution costs and labor costs associated with defibrination.

According to 9 CFR 424.21, sodium citrate is a FSIS approved anti-coagulant that can be used to defibrinate blood. FSIS estimated that the 2019 sodium citrate solution cost per gallon of blood was $1.39. 3 Based on askFSIS and Public Health Information System (PHIS)  4 data, all 14 establishments that process edible blood are small or very small establishments. FSIS experts estimated that small establishments that process edible blood products process two to five gallons of edible blood per production day. These establishments operate about 213  5 production days per year, which means that they each process an estimated 426 to 1,065 gallons of edible blood per year. Each of these establishment would save approximately $592  6 to $1,480  7 in anti-coagulate solution cost per year if they no longer defibrinate blood.

Establishments that process edible blood would also benefit from labor cost savings. FSIS experts estimate that it takes one production worker two to five minutes to defibrinate one gallon of livestock blood. FSIS estimated the total compensation rate of a production employee was $27.36  8 per hour or approximately $0.50  9 per minute based on 2018 estimates from the Bureau of Labor Statistics. Each establishment would save approximately $1,305 in labor costs per year, 10 with a range of $426 to $2,663 if they no longer defibrinate blood.

FSIS estimated that at least the 14 establishments that submitted askFSIS questions about defibrination from October 2015 to December 3, 2019 would benefit from the cost savings associated with this proposed rule. The total estimated annual industry cost savings are detailed in Table 1. FSIS requests comments and data on the total number of establishments that save livestock blood for edible purposes.

The FSIS Administrator has made a preliminary determination that this proposed rule would not have a significant economic impact on a substantial number of small entities in the United States, as defined by the Regulatory Flexibility Act (5 U.S.C. 601). Small and very small establishments would benefit from the cost savings associated with this proposed rule. However, the benefits to small and very small establishments would not be significant based on the total savings estimates in Table 1 ($14,252 to $58,002 over 10 years). Of the 14 establishments that submitted askFSIS questions about defibrination from October 2015 to December 3, 2019, about 64 percent were classified as Hazard Analysis and Critical Control Point (HACCP) size small and 36 percent were HACCP size very small. Under the HACCP size definitions, large establishments have 500 or more employees and small establishments have fewer than 500 but more than 10 employees. Very small establishments have fewer than 10 employees or annual sales of less than $2.5 million.

Consistent with E.O. 13771 (82 FR 9339, February 3, 2017), FSIS has estimated that this proposed rule would yield cost savings. Assuming a 7 percent discount rate, a perpetual time horizon, and a starting year of 2020, the proposed rule, if finalized, is estimated to yield approximately $25,003 (2016$) in annual cost savings. Therefore, if finalized as proposed, this rule would be an E.O. 13771 deregulatory action.

There are no new paperwork or recordkeeping requirements associated with this proposed rule under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Each USDA agency is required to comply with 7 CFR part 1b of the Departmental regulations, which supplements the National Environmental Policy Act regulations published by the Council on Environmental Quality. Under these regulations, actions of certain USDA agencies and agency units are categorically excluded from the preparation of an Environmental Assessment (EA) or an Environmental Impact Statement (EIS) unless the agency head determines that an action may have a significant environmental effect (7 CFR 1b.4(b)). FSIS is among the agencies categorically excluded from the preparation of an EA or EIS (7 CFR 1b.4(b)(6)).

FSIS has determined that this proposed rule, which would remove the defibrination requirement from 9 CFR 310.20, would not create any extraordinary circumstances that would result in this normally excluded action having a significant individual or cumulative effect on the human environment. Therefore, this action is appropriately subject to the categorical exclusion from the preparation of an environmental assessment or environmental impact statement provided under 7 CFR 1b.4 of the U.S. Department of Agriculture regulations.

FSIS and USDA are committed to achieving the purposes of the E-Government Act (44 U.S.C. 3601, et seq. ) by, among other things, promoting the use of the internet and other information technologies and providing increased opportunities for citizen access to Government information and services, and for other purposes.

No agency, officer, or employee of the USDA shall, on the grounds of race, color, national origin, religion, sex, gender identity, sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, or political beliefs, exclude from participation in, deny the benefits of, or subject to discrimination any person in the United States under any program or activity conducted by the USDA.

To file a complaint of discrimination, complete the USDA Program Discrimination Complaint Form, which may be accessed online at: http://www.ocio.usda.gov/sites/default/files/docs/2012/Complain_combined_6_8_12.pdf, or write a letter signed by you or your authorized representative. Send your completed complaint form or letter to USDA by mail, fax, or email:

Mail: U.S. Department of Agriculture, Director, Office of Adjudication, 1400 Independence Avenue SW, Washington, DC 20250-9410.

Fax: (202) 690-7442.

Email: program.intake@usda.gov .

Persons with disabilities who require alternative means for communication (Braille, large print, audiotape, etc.), should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).

Public awareness of all segments of rulemaking and policy development is important. Consequently, FSIS will announce this Federal Register publication on-line through the FSIS web page located at: http://www.fsis.usda.gov/federal-register .

FSIS also will make copies of this publication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations, Federal Register notices, FSIS public meetings, and other types of information that could affect or would be of interest to our constituents and stakeholders. The Constituent Update is available on the FSIS web page. Through the web page, FSIS is able to provide information to a much broader, more diverse audience. In addition, FSIS offers an email subscription service which provides automatic and customized access to selected food safety news and information. This service is available at: http://www.fsis.usda.gov/subscribe . Options range from recalls to export information, regulations, directives, and notices. Customers can add or delete subscriptions themselves and have the option to password protect their accounts.

For the reasons set forth in the preamble, FSIS is proposing to amend 9 CFR Chapter III as follows:

Under the Agricultural Marketing Act (AMA; 7 U.S.C. 1622 (h)) and the regulations at 9 CFR part 352, FSIS conducts voluntary inspection of exotic animals, when requested by an establishment. In the regulations at 9 CFR 352.1(k), FSIS defines “exotic animals” to include reindeer, elk, deer, antelope, water buffalo, and bison. Yak is not currently listed in the regulations as an “exotic animal.” However, the Agency has been inspecting yak under its voluntary program for several years.

In 2014, FSIS issued a memo rescinding all labels for yak product, because the species was not listed as an “exotic animal” eligible for voluntary inspection. On September 3, 2014, the International Yak Association (IYAK) submitted a petition for rulemaking, under 9 CFR part 392, requesting that FSIS amend 9 CFR 352.1(k) to include yak under the definition of an “exotic animal.” The petition is available on FSIS's website at: https://www.fsis.usda.gov/wps/wcm/connect/db2ac10c-7b92-4bb4-a0d3-885641738711/Petition-YAK-112014.pdf?MOD=AJPERES . The petitioner stated that because FSIS had voluntarily inspected yak for many years, it had created an expectation among breeders and buyers that FSIS would continue to inspect yak. Furthermore, the petitioner argued that withdrawing voluntary inspection services could significantly harm the yak industry. On November 21, 2014, IYAK submitted additional supporting data. IYAK had surveyed United States yak producers and found that continued FSIS inspection of yak meat is critical to the industry as a whole. 1 After reviewing the petition and supporting data, FSIS decided to grant the petition and stated that it would continue to voluntarily inspect yak while FSIS went through rulemaking to add yak to the list of exotic animals eligible for voluntary inspection ( https://www.fsis.usda.gov/wps/wcm/connect/aa5f69d7-ddc6-44bc-9ff3-bc9489fcd338/IYAK-FSIS-response-120314.pdf?MOD=AJPERES and https://www.fsis.usda.gov/wps/wcm/connect/c109452f-4497-4144-815e-6a382b94a113/FSIS-Final-Response-IAK-080315.pdf?MOD=AJPERES ). At the time, FSIS was unable to predict when it would initiate rulemaking.

FSIS is now proposing to amend 9 CFR part 352 to define yak and to add it to the list of exotic animals eligible for voluntary inspection. Under this proposed rule, yak would be defined as a long-haired bovid animal originally found throughout the Himalaya region of southern Central Asia and the Tibetan Plateau. As is noted above, FSIS is currently inspecting yak slaughter and processing under voluntary inspection services. Yak inspection is similar to that of other Bovidae, including cattle.

Over the years, FSIS has received inquiries about its voluntary inspection program from various animal producers and growers. Because of interest from these stakeholders, FSIS is requesting comments as to whether the regulations should be amended to list as eligible for voluntary inspection all farm-raised species in the biological families Cervidae ( e.g., moose, all deer and elk), all Bovidae not currently subject to mandatory inspection ( e.g., water buffalo and impalas), and Camelidae ( e.g., camel, llama, and alpaca).

FSIS provides voluntary inspection of some species in the biological families Bovidae and Cervidae under the AMA. Currently, all “exotic animals,” as defined in the regulations, fall under these two families. The Food and Drug Administration (FDA) currently has jurisdiction over the slaughter and processing of species of the biological family Camelidae, as do some state or local agencies. FSIS does not provide voluntary inspection for any of these species but is requesting comment on this issue because there has been stakeholder interest in FSIS expanding its services to include Camelidae.

Based on interest from stakeholders, FSIS also requests comment as to whether any species in these families, if not currently subject to mandatory inspection, should be. As discussed above, FSIS already requires the inspection of some species of the biological family Bovidae under the Federal Meat Inspection Act (FMIA; 21 U.S.C. 601(w)). These species include cattle, sheep, and goats.

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This proposed rule has been designated as a “non-significant” regulatory action under section 3(f) of E.O. 12866. Accordingly, the rule has not been reviewed by the Office of Management and Budget (OMB) under E.O. 12866.

If this rule is finalized, FSIS does not expect any additional industry or Agency costs because, although yak is not currently listed as an “exotic animal” eligible for voluntary inspection, FSIS has been inspecting yak under the voluntary inspection program for many years.

In 2014, IYAK conducted a National Yak Industry Survey to support its petition requesting that FSIS amend 9 CFR 352.1(k) to include Yak under the definition of an “exotic animal.” According to IYAK's survey, FSIS voluntarily inspected 109 yaks from 22 establishments in 2014. The IYAK survey also stated that there were 33 total establishments slaughtering yak in 2014. From 2014 to November 8, 2019, 22 unique establishments submitted a total of 70 yak product labels to the FSIS Labeling and Program Delivery Staff (LPDS) for approval. 2 These establishments would benefit from being able to continue to use their labels with FSIS's voluntary mark of inspection if this proposed rule is finalized. According to the 2014 IYAK survey, 90 percent of the establishments surveyed noted that USDA inspection is critical to the yak industry. Amending 9 CFR 352.1 to list yak as an “exotic animal” eligible for FSIS's voluntary inspection service would avoid disruption to the yak industry and the possible economic harm to producers if FSIS stopped voluntarily inspecting yak.

The FSIS Administrator has made a preliminary determination that this proposed rule would have a significant, but positive, economic impact on a substantial number of small yak entities, as defined by the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). This proposed rule would allow FSIS to continue to voluntarily inspect yak and there would be no increased costs to industry. About 14 percent of the establishments that submitted yak labels from 2014 to November 8, 2019 were classified as Hazard Analysis and Critical Control Point (HACCP) size small and 86 percent were HACCP size very small. 3 The proposed rule would benefit small and very small establishments because it would continue to give these establishments access to the FSIS voluntary mark of inspection and access to buyers who look for that mark of inspection when making purchasing decisions.

Consistent with E.O. 13771 (82 FR 9339, February 3, 2017), this proposed rule would expand marketing options for the Yak industry. Therefore, if finalized as proposed, this rule is expected to be an E.O. 13771 deregulatory action.

There are no new paperwork or recordkeeping requirements associated with this proposed rule under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Each USDA agency is required to comply with 7 CFR part 1b of the Departmental regulations, which supplements the National Environmental Policy Act regulations published by the Council on Environmental Quality. Under these regulations, actions of certain USDA agencies and agency units are categorically excluded from the preparation of an Environmental Assessment (EA) or an Environmental Impact Statement (EIS) unless the agency head determines that an action may have a significant environmental effect (7 CFR 1b.4(b)). FSIS is among the agencies categorically excluded from the preparation of an EA or EIS (7 CFR 1b.4(b)(6)).

FSIS has determined that this proposed rule, which amends its regulations to define yak and include it among “exotic animals” eligible for voluntary inspection under 9 CFR part 352, would not create any extraordinary circumstances that would result in this normally excluded action having a significant individual or cumulative effect on the human environment. Therefore, this action is appropriately subject to the categorical exclusion from the preparation of an EA or EIS provided under 7 CFR 1b.4 of the U.S. Department of Agriculture regulations.

FSIS and the U.S. Department of Agriculture (USDA) are committed to achieving the purposes of the E-Government Act (44 U.S.C. 3601, et seq. ) by, among other things, promoting the use of the internet and other information technologies and providing increased opportunities for citizen access to Government information and services, and for other purposes.

Pursuant to the Congressional Review Act at 5 U.S.C. 801 et seq., the Office of Information and Regulatory Affairs has determined that this proposed rule is not a “major rule,” as defined by 5 U.S.C. 804(2).

Public awareness of all segments of rulemaking and policy development is important. Consequently, FSIS will announce this Federal Register publication on-line through the FSIS web page located at: http://www.fsis.usda.gov/federal-register .

FSIS also will make copies of this publication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations, Federal Register notices, FSIS public meetings, and other types of information that could affect or would be of interest to our constituents and stakeholders. The Constituent Update is available on the FSIS web page. Through the web page, FSIS is able to provide information to a much broader, more diverse audience. In addition, FSIS offers an email subscription service which provides automatic and customized access to selected food safety news and information. This service is available at: http://www.fsis.usda.gov/subscribe . Options range from recalls to export information, regulations, directives, and notices. Customers can add or delete subscriptions themselves and have the option to password protect their accounts.

No agency, officer, or employee of the USDA shall, on the grounds of race, color, national origin, religion, sex, gender identity, sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, or political beliefs, exclude from participation in, deny the benefits of, or subject to discrimination any person in the United States under any program or activity conducted by the USDA.

To file a complaint of discrimination, complete the USDA Program Discrimination Complaint Form, which may be accessed online at http://www.ocio.usda.gov/sites/default/files/docs/2012/Complain_combined_6_8_12.pdf, or write a letter signed by you or your authorized representative.

Send your completed complaint form or letter to USDA by mail, fax, or email:

Mail: U.S. Department of Agriculture, Director, Office of Adjudication, 1400 Independence Avenue SW, Washington, DC 20250-9410.

Fax: (202) 690-7442.

Email: program.intake@usda.gov .

Persons with disabilities who require alternative means for communication (Braille, large print, audiotape, etc.), should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).

For the reasons set out in the preamble, FSIS is proposing to amend 9 CFR part 352 as follows:

Illuminated exit signs are included in the list of “covered products” for which DOE is authorized to establish and amend energy efficiency standards and test procedures. (42 U.S.C. 6295(w) and 42 U.S.C. 6293(b)(9)) DOE's test procedure for illuminated exit signs is prescribed at title 10 of the Code of Federal Regulations (CFR) part 431, subpart L. The following sections discuss DOE's authority to establish and amend the test procedure for illuminated exit signs, as well as relevant background information regarding DOE's consideration of test procedures for this product.

The Energy Policy and Conservation Act of 1975, as amended (EPCA), 1 among other things, authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. (42 U.S.C. 6291-6317) Title III, Part B  2 of EPCA established the Energy Conservation Program for Consumer Products Other Than Automobiles, which sets forth a variety of provisions designed to improve energy efficiency. These products include illuminated exit signs, the subject of this RFI. (42 U.S.C. 6293(b)(9); 42 U.S.C. 6295(w))  3

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

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

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

Under 42 U.S.C. 6293, EPCA sets forth the criteria and procedures DOE must follow when prescribing or amending test procedures for covered products. EPCA requires that any test procedures prescribed or amended under this section be reasonably designed to produce test results which measure energy efficiency, energy use or estimated annual operating cost of a covered product during a representative average use cycle or period of use and not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3))

If DOE determines that a test procedure amendment is warranted, it must publish proposed test procedures and offer the public an opportunity to present oral and written comments on them. (42 U.S.C. 6293(b)(2))

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

EPCA also requires that, at least once every 7 years, DOE evaluate test procedures for each type of covered product, including illuminated exit signs, to determine whether amended test procedures would more accurately or fully comply with the requirements for the test procedures to be reasonably designed to produce test results that reflect energy efficiency, energy use, and estimated operating costs during a representative average use cycle or period of use and not to be unduly burdensome to conduct. (42 U.S.C. 6293(b)(1)(A)) If the Secretary determines, on his own behalf or in response to a petition by any interested person, that a test procedure should be prescribed or amended, the Secretary shall promptly publish in the Federal Register proposed test procedures and afford interested persons an opportunity to present oral and written data, views, and arguments with respect to such procedures. (42 U.S.C. 6293(b)(2)) The comment period on a proposed rule to amend a test procedure shall be at least 60 days and may not exceed 270 days. In prescribing or amending a test procedure, the Secretary shall take into account such information as the Secretary determines relevant to such procedure, including technological developments relating to energy use or energy efficiency of the type (or class) of covered products involved. Id. If DOE determines that test procedure revisions are not appropriate, DOE must publish its determination not to amend the test procedures. DOE is publishing this RFI to collect data and information to inform its decision pursuant to EPCA's 7-year review requirement. (42 U.S.C. 6293(b)(1)(A))

The Energy Policy Act of 2005 (EPACT 2005) amended EPCA to provide a test procedure for illuminated exit signs, requiring that the procedure “be based on the test method used under version 2.0 of the ENERGY STAR  4 program of the Environmental Protection Agency for illuminated exit signs.” (42 U.S.C. 6293(b)(9)) In 2006, DOE published a final rule adopting a test procedure for illuminated exit signs at 10 CFR 431.204. 71 FR 71340, 71372-71373 (Dec. 8, 2006). Certification, compliance and enforcement (CCE) requirements for illuminated exit signs, including sample size, sampling plan, compliance, calculations and reporting, are found at 10 CFR 429.48 and 10 CFR 429.11.

On August 6, 2013, DOE published final guidance  5 clarifying that energy conservation standards apply to illuminated exit signs with auxiliary functions such as integrated egress lighting and/or audible alarms (sometimes referred to as combination exit signs). 6 DOE stated that the addition of auxiliary features or hardware in a combination exit sign does not transform an illuminated exit sign into non-covered equipment or otherwise exempt it from regulatory requirements, although the added features or hardware are not subject to the relevant energy conservation standard. In the August 2013 guidance, DOE noted that using the current DOE procedure used to test combination illuminated exit sign models may result in measured values that are not representative of solely the illuminated exit sign component's input power demand due to the typically larger battery required to accommodate operation of the auxiliary features. DOE's current test procedure does not provide a methodology for excluding the power consumed in charging the battery to operate auxiliary features from the power consumed to illuminate the exit sign faces. As such, DOE stated that manufacturers may seek a waiver from the DOE test procedure to test and certify combination illuminated exit sign models if manufacturers do not believe the result of the DOE test procedure is representative of an illuminated exit sign's input power demand.

DOE granted a waiver to Acuity Brands Lighting (Acuity), published on March 16, 2018, requiring Acuity to use an alternate test procedure to test and rate the combination illuminated exit sign basic models for which it requested a waiver. 83 FR 11740 (“March 2018 Acuity waiver”). DOE granted a waiver to Beghelli North America (Beghelli) published on June 21, 2019, for certain combination exit sign models similar to those basic models identified by Acuity in its waiver petition. 84 FR 29186 (“June 2019 Beghelli waiver”). DOE granted a waiver to Signify North America Corporation (Signify) published on January 31, 2020 for certain combination exit sign models, also similar to those identified by Acuity and Beghelli. 85 FR 5652 (“January 2020 Signify waiver”). Under applicable regulations, after issuing a waiver, DOE must update the relevant test procedure to establish how to test those basic models granted a waiver. 10 CFR 431.401(l). Therefore, DOE is considering an alternate test procedure for combination illuminated exit signs.

In the following sections, DOE has identified a variety of issues on which it seeks input to aid in the development of technical and economic analyses used to determine whether an amended test procedure for illuminated exit signs would more accurately or fully comply with the requirements in EPCA that test procedures: (1) Be reasonably designed to produce test results which reflect energy use during a representative average use cycle or period of use; and (2) not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3)). DOE also requests comment on any opportunities to streamline and simplify testing requirements for illuminated exit signs.

Additionally, DOE welcomes comment on other issues relevant to the conduct of this process. In particular, DOE notes that under Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs,” Executive Branch agencies such as DOE are directed to manage the costs associated with the imposition of expenditures required to comply with Federal regulations. 82 FR 9339 (Feb. 3, 2017). Consistent with that Executive Order, DOE encourages the public to provide input on measures DOE could take to lower the cost of its regulations applicable to illuminated exit signs, consistent with the requirements of EPCA.

This notice concerns illuminated exit signs; an illuminated exit sign is defined as a sign that is designed to be permanently fixed in place to identify an exit and consists of an electrically powered integral light source that both illuminates the legend “EXIT” and any directional indicators, and provides contrast between the legend, any directional indicators, and the background. (42 U.S.C. 6291(37)); see also 10 CFR 431.202. DOE's current energy conservation standards for illuminated exit signs limit input power demand to 5 W or less per face. 10 CFR 431.206. For example, a single face illuminated exit sign ( e.g., mounted flush to a wall with only one side illuminated) must have an input power demand of 5 W or less, and a two face illuminated exit sign ( e.g., mounted perpendicular to a wall, or ceiling mounted with two sides illuminated) must have an input power demand of 10 W or less.

As noted above, the August 2013 guidance clarified that energy conservation standards for illuminated exit signs apply to illuminated exit signs with integrated egress lighting or other auxiliary features ( i.e., “combination exit signs”). The guidance stated that a product meeting the statutory and regulatory definition of “illuminated exit sign” is subject to the applicable DOE regulations, regardless of whether that product also provides additional features. As explained in the August 2013 guidance; however, DOE interprets the input demand standard as a limit only on the energy use of components that illuminate the face(s), not on the energy use of other components beyond the definition of illuminated exit sign ( e.g., egress lighting, alarms).

DOE is considering whether a definition for “combination illuminated exit sign” is needed, in conjunction with test procedure provisions specific to combination illuminated exit signs (see section II.B.5 of this RFI). DOE is considering defining combination illuminated exit signs as illuminated exit signs that include or are packaged with (1) at least one auxiliary feature ( i.e., an electrically connected component or device with a function that does not support the illumination of the face(s) of an exit sign, such as egress lighting and audible alarms) and (2) a battery electrically connected to the illumination source for the face. Combination illuminated exit signs have auxiliary features ( e.g., egress lighting and/or audible alarms) that require larger capacity batteries than do illuminated exit signs without such features.

DOE is also considering revising or adding supporting definitions. For example, the existing definition of “face” is an illuminated side of an illuminated exit sign. DOE is considering aligning the definition of “face” with the definition of “illuminated exit sign” by specifying that each face must include the legend “EXIT” (read from left to right), and any directional indicators, if present. To illustrate the need for further clarity in the definition of “face,” DOE notes three configurations of edge-lighted illuminated exit signs  7 of which the Department is aware: (1) One side is illuminated and reads “EXIT” from left to right and the other side is not illuminated; (2) one side is illuminated and reads “EXIT” left to right and the other side is illuminated and displays a reversed, illegible version of the same text; and (3) both sides are illuminated and both sides read “EXIT” from left to right. DOE considers configurations (1) and (2) to have a single face because the legend “EXIT” can be read correctly ( i.e., from left to right) only when viewed from one side of the sign. DOE considers configuration (3) to have two faces because the legend can be read correctly from either side of the sign. The considered definition, above, would clarify that each view of the legend “EXIT” that can be read correctly constitutes one face. Based on this definition, it would be clear that configuration (3) has two faces, while configurations (1) and (2) each have one face.

Some illuminated exit signs can be configured by the user to have different numbers of faces ( e.g., an illuminated exit sign can be configured with one or two face(s)). The energy conservation standard for illuminated exit signs is a maximum input power demand per face. 10 CFR 431.206. To provide additional direction for calculating input power demand per face, DOE is considering defining “face count” as the lowest number of faces with which an exit sign can be configured with all electric light sources connected and energized. For example, if an illuminated exit sign can be configured with either one or two faces, while having all electric light sources connected and energized, then the number of faces would be one under the definition DOE is considering.

Issue 1: DOE requests comment on whether it should adopt definitions for any of the following terms: “combination illuminated exit sign,” “face,” and “face count.” DOE also requests comment on the definitions it is considering for these terms. Additionally, DOE requests comment on whether DOE should adopt any definitions in addition to those specified here, and the appropriate content of any such definitions.

EPCA requires energy conservation standards adopted for any covered product after July 1, 2010, to address standby mode and off mode energy use. (42 U.S.C. 6295(gg)(3)). EPCA defines “active mode” as the condition in which an energy-using product is connected to a main power source, has been activated, and provides one or more main functions. (42 U.S.C. 6295)(gg)(1)(A)(i)). “Standby mode” is the condition in which an energy-using product is connected to a main power source and offers one or more of the following user-oriented or protective functions: Facilitating the activation or deactivation of other functions (including active mode) by remote switch (including remote control), internal sensor, or timer; or providing continuous functions, including information or status displays (including clocks), or sensor-based functions. (42 U.S.C. 6295)(gg)(1)(A)(iii)). “Off mode” is the condition in which an energy-using product is connected to a main power source and is not providing any standby mode or active mode function. (42 U.S.C. 6295)(gg)(1)(A)(ii)).

Building safety codes generally require that exit signs be continuously illuminated. 8 Additionally, a preliminary review of the market indicates that illuminated exit signs may not operate in either standby mode or off mode, either through remote switching technology or continuous user-oriented or protection functions.

Issue 2: DOE requests comment on whether any illuminated exit sign models on the market or being developed for the market operate in standby mode and/or in off mode. If so, DOE requests information on the standby mode power consumption and/or off mode power consumption, as compared to the active mode power consumption of such models.

DOE's current test procedure for illuminated exit signs incorporates by reference EPA's “ENERGY STAR Program Requirements for Exit Signs,” Version 2.0 (hereafter “ENERGY STAR V2.0”), and requires determining the energy consumption of an illuminated exit sign by conducting the test procedure set forth in ENERGY STAR V2.0 section 4 (Test Criteria), “Conditions for testing” and “Input power measurement.” 10 CFR 431.204. The ENERGY STAR exit sign program was suspended in 2008 after EPACT 2005 established energy conservation standards for this equipment at the same input power demand limit as the ENERGY STAR specification. DOE is considering removing the incorporation by reference to ENERGY STAR V2.0 and providing specifications and requirements for testing illuminated exit signs directly in 10 CFR 431.204.

Issue 3: DOE requests comment on removing the reference to ENERGY STAR V2.0 and providing specifications and requirements for testing illuminated exit signs directly in 10 CFR 431.204.

The current test procedure specifies that an illuminated exit sign under test be operated at the rated input voltage which represents normal operation pursuant to section 4 of ENERGY STAR V2.0. Some illuminated exit signs are rated for multiple voltages, including the following combinations of voltages: 120/277 V, 120/347 V, 277/347 V, or 120/277/347 V. To ensure that the test procedure provides results that are representative of an average period of use while not being unduly burdensome to conduct, as required by EPCA, DOE is considering specifying the input voltage at which to test any unit that is rated for multiple voltages. This approach is also intended to improve the clarity of the test procedure.

Specifically, DOE is considering requiring that illuminated exit signs rated at multiple voltages be tested at 277 V if rated to operate at that voltage and, if not, at 120 V if rated to operate at that voltage. DOE notes that commercial buildings most commonly provide 277 V for illuminated exit signs; therefore, DOE is considering requiring testing at 277 V, if possible. If an illuminated exit sign is not rated to operate at either 277 V or 120 V, DOE is considering requiring testing at the highest rated input voltage specified by the manufacturer. Finally, if no rated input voltage is provided for the illuminated exit sign, DOE is considering requiring testing it at 277 V. Table II.1 summarizes the input voltages DOE is considering for specific scenarios.

Issue 4: DOE requests comment on whether, for each scenario of multiple rated input voltages in Table II.1, the test input voltage being considered by DOE will provide results representative of an average period of use. For illuminated exit signs that are rated to operate at multiple input voltages, DOE requests information on how such equipment is currently tested. DOE requests information on whether there are currently models of illuminated exit signs on the market, or in development for, the market for which the manufacturer does not provide an input rated voltage and, if there is such equipment, which input voltage is used for testing.

To ensure that test units are sufficiently stable for taking accurate and reproducible measurements, they must be operated for a period of time, i.e. conditioned, prior to taking measurements. The DOE test procedure, per section 4 of ENERGY STAR V2.0, specifies that prior to input power measurements, an exit sign model shall be operated at the rated input voltage for a period of 100 hours. For those units with an internal battery, the DOE test procedure requires that a unit under test be operated using the battery for an additional one-and-one-half hours ( i.e., 90 minutes), 9 and then recharged for the period specified by the sign manufacturer prior to input power measurements. On the other hand, the National Electrical Manufacturers Association's (NEMA) standard EM 1-2010, “Exit Sign Visibility Testing Requirements for Safety and Energy Efficiency” (hereafter “NEMA EM 1-2010”) states that the sign shall be energized for at least 100 hours before testing procedures begin, and immediately prior to testing the exit sign shall be energized for a manufacturer-specified time, but no less than 20 minutes. NEMA EM 1-2010 does not provide any additional steps for exit signs with internal batteries ( e.g., operating the internal battery for 90 minutes or recharging the internal battery prior to testing). Although NEMA EM 1-2010 has been rescinded, DOE considers it reflective of industry practice because it was developed based on a consensus among manufacturers. As such, it may not be necessary to require any illuminated exit sign with an internal battery to operate on battery power for at least 90 minutes and then recharge the battery in accordance with manufacturer specifications after the 100 hours of operation and prior to measuring input power demand. DOE is considering eliminating this requirement.

DOE is considering proposing that if, after the 100-hour conditioning period, a sample unit is disconnected from the main power source, the unit must be stabilized prior to taking power measurements. Specifically, this would require operating the equipment until it is energized, which DOE has tentatively determined would be at least 20 minutes. This aligns with direction provided in NEMA EM 1-2010 that the exit sign be energized immediately prior to testing for a time period specified by the manufacturer, but no less than 20 minutes. It is also consistent with results reported from testing conducted by the Lighting Research Center (LRC), a leading center for research and education in lighting. To evaluate the power characteristics of illuminated exit signs (both with and without an internal battery) the LRC took the following steps: (1) Conditioned them for a minimum of 100 hours and (2) operated for at least 20 minutes immediately before taking measurements. 10

Issue 5: DOE requests comment and information on whether the 100-hour conditioning requirement alone sufficiently charges an illuminated exit sign's internal battery and whether units with an internal battery require a 90-minute charging period and recharging prior to testing. DOE also requests comment on whether a minimum stabilization period of 20 minutes is appropriate if the illuminated exit sign (with or without an internal battery) is disconnected from the main power source after conditioning.

As discussed in section II.A, a combination exit sign has auxiliary features ( e.g., egress lighting and/or audible alarms) that require a larger capacity battery than an illuminated exit sign without such features. When alternating current (AC) power fails, the larger capacity battery operates not only the faces, but also the auxiliary features of the illuminated exit sign. When a combination illuminated exit sign runs on AC power ( i.e. power delivered to buildings from the electric grid), it may draw additional power to maintain a full battery charge, as compared to a sign with a smaller capacity battery and no auxiliary features. Further, the combination illuminated exit sign may require a higher-capacity rechargeable battery system, which requires a higher maintenance charge, 11 to operate the faces and the auxiliary features.

Hence, the input power demand of combination illuminated exit signs is influenced by the larger battery used for operation. DOE defines input power demand as the amount of power required to continuously illuminate an exit sign model. 10 CFR 431.202 (emphasis added). As explained in the August 2013 guidance, because auxiliary features such as egress lighting and/or audible alarms do not support the illumination of the faces of the exit sign, measurement of the input power demand consumed by these models may result in measured values that are not representative solely of the energy consumption of the exit sign's illuminated components.

DOE is considering an alternate test procedure for combination illuminated exit signs. For illuminated exit signs in which the face(s) remain illuminated when the battery is disconnected, and all auxiliary features can be disconnected in a manner that permits reinstallation using only the original parts as assembled by the manufacturer, testing could be conducted with the battery and all auxiliary features disconnected, and the input power demand measured in accordance with the current test procedure for illuminated exit signs. This method would require that the battery can be disconnected while allowing the illumination of the faces. This is only possible when the battery is connected in parallel rather than in series with the exit sign circuitry. Additionally, both the battery and any auxiliary features must be removable via a reversible process that requires no additional materials (such as tape, glue, or solder) for reinstallation; otherwise, the test unit would be altered so that it would no longer be the same product. This method would allow for a direct measurement of the input power demand required only for the illumination of all faces of the unit that is being tested.

Some units, however, do not permit such reversible removal of supplemental components there exists a unit that is equivalent except that it is not combination illuminated exit sign. The March 2018 Acuity waiver, the June 2019 Beghelli waiver, and the January 2020 Signify waiver addressed such cases with substantively similar alternate test procedures. 83 FR 11740 (Mar. 16, 2018); 84 FR 29186 (June 21, 2019); 85 FR 5652 (Jan. 31, 2020). For these cases, DOE is considering an alternate test procedure similar to those established in the March 2018 Acuity waiver, June 2019 Beghelli waiver, and January 2020 Signify waiver.

Specifically, this alternate test procedure would require the manufacturer to identify a unit of a non-combination illuminated exit sign (“non-combination unit”) equivalent to the combination unit. A non-combination unit would be equivalent only if it consists entirely of electricity-consuming components identical to all of those of the combination unit, but does not include any auxiliary features, and contains an electrically connected battery. The equivalent non-combination unit would also need to have the same number of faces as the combination unit and be produced by the same manufacturer. The manufacturer would test the equivalent non-combination unit using the DOE test procedure and assign the measured input power demand of the non-combination unit as the input power demand of the combination unit.

DOE is also considering specifying that, for each combination illuminated exit sign unit selected, the manufacturer would assign the measured input power demand of a separate corresponding equivalent non-combination unit. For example, if DOE regulations require testing of two units, the manufacturer would be required to identify and measure the input power demand of two equivalent non-combination units, and assign the measured input power of each unit to each of the two combination units, respectively. In those instances where only a single, non-combination unit is available, the manufacturer would be required to measure the input power demand of that single unit and assign the measured input power to the combination unit.

Some basic models of combination illuminated exit signs use only light-emitting diode (LED) light sources to illuminate all face(s), and do not have an equivalent non-combination models. The March 2018 Acuity waiver addressed such cases. DOE is considering the same approach for these models, as established in the March 2018 Acuity wavier. Specifically, DOE is considering that an input power demand be assigned according to the following formula:

This method would require determining the number of faces for each basic model. As discussed in section II.A, DOE is considering defining face count as the lowest number of faces (no fewer than one) with which an illuminated exit sign basic model can be configured by an end user when all electric light sources are connected and energized.

In the case where neither of the above-mentioned alternate test procedures under consideration can be applied, DOE is considering specifying that for such combination illuminated exit signs the current test procedure for illuminated exit signs remains in effect.

Issue 6: DOE requests comment on the test methods described above for combination illuminated exit signs.

In addition to the issues identified earlier in this document, DOE welcomes comment on any other aspect of the existing test procedure for illuminated exit signs. DOE recently issued an RFI to seek more information on whether its test procedures are reasonably designed, as required by EPCA, to produce results that measure the energy use or efficiency of a product during a representative average use cycle or period of use. 84 FR 9721 (Mar. 18, 2019). DOE seeks comment on this issue as it pertains to the test procedure for illuminated exit signs. DOE also seeks information that would improve the repeatability and reproducibility of the test procedure and limit manufacturer test burden.

DOE seeks comment on whether there have been changes in product testing methodology or new products on the market since the last test procedure update that may create the need to make amendments to the test procedure for illuminated exit signs. With respect to non-combination illuminated exit signs, DOE seeks data and information that could enable the agency to propose that the current test procedure produces results that are representative of an average use cycle for the product and is not unduly burdensome to conduct, and therefore does not need amendment. DOE also seeks information on whether an existing private-sector developed test procedure would produce such results and should be adopted by DOE rather than DOE establishing its own test procedure, either entirely or by adopting only certain provisions of one or more private-sector developed tests.

Additionally, DOE requests comment on whether the existing test procedure limits a manufacturer's ability to provide additional features to consumers on illuminated exit signs. DOE particularly seeks information on how the test procedure could be amended to reduce the cost of new or additional features and make it more likely that such features are included on illuminated exit signs while still meeting the requirements of EPCA.

DOE also requests comment on any potential amendments to the existing test procedures that would address impacts on manufacturers, including small businesses.

Finally, DOE recently published an RFI on the emerging smart technology appliance and equipment market. 83 FR 46886 (Sept. 17, 2018). In that RFI, DOE sought information to better understand market trends and issues in the emerging market for appliances and commercial equipment that incorporate smart technology. DOE's intent in issuing the RFI was to ensure that DOE did not inadvertently impede such innovation in fulfilling its statutory obligations in setting efficiency standards for covered products and equipment. DOE seeks comments, data and information on the issues presented in the RFI as they may be applicable to illuminated exit signs.

DOE invites all interested parties to submit in writing by July 16, 2020, comments and information on matters addressed in this notice and on other matters relevant to DOE's consideration of amended test procedures for illuminated exit signs. These comments and information will aid in the development of a test procedure notice of proposed rulemaking for illuminated exit signs if DOE determines that amended test procedures may be appropriate for these products.

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

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

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

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

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

Include contact information each time you submit comments, data, documents, and other information to DOE. If you submit via postal mail or hand delivery/courier, please provide all items on a CD, if feasible. It is not necessary to submit printed copies. No facsimiles (faxes) will be accepted.

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

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

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

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

DOE considers public participation to be a very important part of the process for developing test procedures and energy conservation standards. DOE actively encourages the participation and interaction of the public during the comment period in each stage of this process. Interactions with and between members of the public provide a balanced discussion of the issues and assist DOE in the process. Anyone who wishes to be added to the DOE mailing list to receive future notices and information about this process should contact Appliance and Equipment Standards Program staff at (202) 287-1445 or via email at ApplianceStandardsQuestions@ee.doe.gov.

This document of the Department of Energy was signed on April 30, 2020, by Alexander N. Fitzsimmons, Deputy Assistant Secretary for Energy Efficiency, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

Comments Invited

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-2020-0442; Project Identifier AD-2020-00260-E” at the beginning of your comments. The FAA specifically invites comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. The FAA will consider all comments received by the closing date and may amend this NPRM because of those comments.

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

Confidential Business Information (CBI) is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Carol Nguyen, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA received a report of an uncontained engine failure during a revenue flight. The failure resulted from a crack originating in the knife edge of the HPT 2nd-stage air seal assembly. After further analysis, it was determined that the knife-edge crack was due to seal rubbing that elevated the HPT 2nd-stage air seal temperature and induced fatigue. This condition, if not addressed, could result in uncontained HPT 2nd-stage air seal assembly release, damage to the engine, and damage to the airplane.

The FAA reviewed PW Service Bulletin (SB) PW2000 72-773, dated March 11, 2020. The SB describes procedures for performing a BSI of the HPT 2nd-stage air seal assembly. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA reviewed PW SB PW2000 72-754, Revision No. 2, dated April 30, 2019, and PW SB PWF117 72-402, Revision No. 2, dated May 3, 2019. The SBs describe procedures for inspecting and replacing the HPT 2nd-stage air seal assembly.

The FAA is proposing this AD because it 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 initial and repetitive BSIs, FPIs, and visual inspections of the HPT 2nd-stage air seal assembly and, depending on the results of the inspections, replacement of the HPT 2nd-stage air seal assembly with a part eligible for installation. This proposed AD would also require replacement of the affected HPT 2nd-stage air seal assembly, depending on the engine model, at either the next engine shop visit or the next piece-part opportunity.

The FAA estimates that this proposed AD affects 445 engines installed on airplanes of U.S. registry.

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

The FAA estimates the following costs to do any necessary replacements. The FAA has no way of determining how many replacements of the HPT 2nd-stage air seal assembly will be done with a modified HPT 2nd-stage air seal assembly and how many will be done with a new HPT 2nd-stage air seal assembly. The FAA also has no way of determining the number of engines that might need replacement of the HPT 2nd-stage air seal assembly, HPT 1st-stage disk, and HPT 2nd-stage hub.

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

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

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

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

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

(2) 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:

Comments Invited

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-2020-0457; Product Identifier 2020-NM-039-AD” at the beginning of your comments. The FAA specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. The FAA will consider all comments received by the closing date and may amend this NPRM based on those comments.

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

The FAA issued AD 2019-23-01, Amendment 39-19794 (84 FR 66579, December 5, 2019) (“AD 2019-23-01”), for certain Airbus SAS Model A318 series airplanes; A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes; A320-211, -212, -214, -216, -231, -232, -233, -251N, -252N, and -271N airplanes; and A321 series airplanes. AD 2019-23-01 requires revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations. AD 2019-23-01 resulted from a determination that new or more restrictive airworthiness limitations are necessary. The FAA issued AD 2019-23-01 to address fatigue cracking, accidental damage, or corrosion in principal structural elements, which could result in reduced structural integrity of the airplane. AD 2019-23-01 requires airworthiness limitations that are newer or more restrictive than those specified in AD 2018-25-02, Amendment 39-19513 (83 FR 62690, December 6, 2018) (“AD 2018-25-02”). AD 2019-23-01 specifies that accomplishing the revision required by paragraph (i) of AD 2019-23-01 terminates all requirements of AD 2018-25-02.

Since the FAA issued AD 2019-23-01, the agency has determined that new or more restrictive airworthiness limitations are necessary. In addition, the FAA has added Model A319-151N and -153N airplanes and Model A320-253N, -272N, and -273N airplanes to the applicability of this proposed AD.

The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2020-0036, dated February 26, 2020 (“EASA AD 2020-0036”) (also referred to as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus SAS Model A318 series airplanes; Model A319-111, -112, -113, -114, -115, -131, -132, -133, -151N, and -153N airplanes; Model A320-211, -212, -214, -215, -216, -231, -232, -233, -251N, -252N, -253N, -271N, -272N, and -273N airplanes; and Model A321 series airplanes. EASA AD 2020-0036 superseded EASA AD 2018-0288 (which corresponds to FAA AD 2019-23-01). Model A320-215 airplanes are not certified by the FAA and are not included on the U.S. type certificate data sheet; this AD therefore does not include those airplanes in the applicability.

Airplanes with an original airworthiness certificate or original export certificate of airworthiness issued after October 11, 2019, must be in compliance with the airworthiness limitations specified as part of the approved type design and referenced on the type certificate data sheet; this AD therefore does not include those airplanes in the applicability.

This proposed AD was prompted by a determination that new or more restrictive airworthiness limitations are necessary. The FAA is proposing this AD to address fatigue cracking, accidental damage, or corrosion in principal structural elements, which could result in reduced structural integrity of the airplane. See the MCAI for additional background information.

EASA AD 2020-0036 describes new or more restrictive airworthiness limitations for damage tolerance of airplane structures.

This proposed AD would also require Airbus A318/A319/A320/A321 Airworthiness Limitations Section (ALS) Part 2-Damage Tolerant Airworthiness Limitation Items (DT-ALI), Revision 07, dated June 13, 2018, which the Director of the Federal Register approved for incorporation by reference as of January 9, 2020 (84 FR 66579, December 5, 2019).

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

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the State of Design Authority, the FAA has been notified of the unsafe condition described in the MCAI referenced above. The FAA is proposing this AD because the FAA evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.

This proposed AD would retain the requirements of AD 2019-23-01. This proposed AD would also require revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations, which are specified in EASA AD 2020-0036 described previously, as incorporated by reference. Any differences with EASA AD 2020-0036 are identified as exceptions in the regulatory text of this proposed AD.

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

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA initially worked with Airbus and EASA to develop a process to use certain EASA ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has since coordinated with other manufacturers and civil aviation authorities (CAAs) to use this process. As a result, EASA AD 2020-0036 will be incorporated by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2020-0036 in its entirety, through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in the EASA AD does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in the EASA AD.

Service information specified in EASA AD 2020-0036 that is required for compliance with EASA AD 2020-0036 will be available on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2020-0457 after the FAA final rule is published.

The FAA's process of incorporating by reference MCAI ADs as the primary source of information for compliance with corresponding FAA ADs has been limited to certain MCAI ADs (primarily those with service bulletins as the primary source of information for accomplishing the actions required by the FAA AD). However, the FAA is now expanding the process to include MCAI ADs that require a change to airworthiness limitation documents, such as airworthiness limitation sections.

For these ADs that incorporate by reference an MCAI AD that changes airworthiness limitations, the FAA requirements are unchanged. Operators must revise the existing maintenance or inspection program, as applicable, to incorporate the information specified in the new airworthiness limitation document. The airworthiness limitations must be followed according to 14 CFR 91.403(c) and 91.409(e).

The FAA estimates that this proposed AD affects 1,553 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

The FAA estimates the total cost per operator for the retained actions from AD 2019-23-01 to be $7,650 (90 work-hours × $85 per work-hour).

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

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

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

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

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

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

(2) 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:

On December 11, 2019, the EEOC requested comments on a proposed rule, published at 84 FR 67683, to amend its rule covering official time for representatives who are employees of the federal government. The EEOC received more than 1,800 comments before the comment period closed on February 10, 2020. Due to the high level of interest on the topic, the Commission wants to ensure that it gives all interested stakeholders ample opportunity to comment. Therefore, the EEOC will reopen the comment period for 60 additional days. Parties should refer to the proposed rule, at 84 FR 67683, for further details about the issues under consideration.

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

Submit your comments, identified by Docket ID No. EPA-R07-OAR-2020-0256, at https://www.regulations.gov. Once submitted, comments cannot be edited or removed from Regulations.gov . The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

The EPA is proposing to approve revisions to 10 Code of State Regulation (CSR) 10-6.120, Restriction of Emission of Lead From Specific Lead Smelter-Refinery Installations, in the

Missouri SIP. The EPA received the Missouri Department of Natural Resources' (MoDNR) SIP revision submission on February 15, 2019. The revisions are described in detail in the technical support document (TSD) included in the docket for this action. The Environmental Protection Agency (EPA) is proposing to approve revisions to the Missouri State Implementation Plan (SIP).

The revisions to 10 CSR 10-6.120 eliminate restrictions for a facility that is no longer operational as a primary lead smelter, update the reference to the National Emissions Standards for Hazardous Air Pollutants (NESHAP), Subpart X, update the incorporation by reference information, and make editorial changes to the rule for clarity. The EPA believes that these revisions do not impact the stringency of the Missouri SIP and do not adversely impact air quality.

A list of the revisions Missouri made to 10 CSR 10-6.120 are as follows:

• The reference in paragraph (3), General Provisions, to the Herculaneum primary lead smelter and corresponding Table 1 which formerly contained lead emission limits has been removed because the Herculaneum facility no longer operating as a primary lead smelter. The Herculaneum area is a nonattainment area for the 2008 Lead National Ambient Air Quality Standard (NAAQS) and thus has an approved plan to bring the area back into attainment of the standard. See 79 FR 62572, October 20, 2014. The lead emissions limits in the approved attainment demonstration SIP are more stringent than those in table 1; thus, EPA did not approve table 1 of the General Provisions in its August 28, 2015, action. See 80 FR 52190. Missouri's removal of the emissions limitations from its State rule does not affect the enforceability of the attainment SIP and the controls required to meet the NAAQS.

• Paragraph (5), Test Methods, has also been revised to incorporate the Secondary Lead Smelter NESHAP by reference, as well as, reference specific EPA test methods described in Missouri's rule 10 CSR 10-6.030(22).

The revisions to this state regulation were placed on public notice for review and comment from June 29 through October 4, 2018. Missouri received three comments from two sources during the comment period: EPA provided two comments and Doe Run Resource Recycling Facility provided one comment on the rule revisions. Missouri responded to all three comments, as noted in the State submission included in the docket for this action. Missouri responded to all three comments in its Order of Rulemaking dated January 2, 2019. The three comments Missouri received were:

• EPA commented on paragraph (5) of the proposed rule revision that the SIP revision request for subsection 10 CSR 10-6.030 (22), upon which the revisions regarding test methods in 10 CSR 10-6.120 relies, had not yet been approved. Since EPA submitted its comment, the Missouri SIP has been approved as a separate action to incorporate the revisions to 10 CSR 10-6.030. See 85 FR 4229, January 24, 2020.

• EPA also commented on the revisions to paragraph (5) encouraging MoDNR to reference 40 CFR part 60, appendix A, rather that adding references to 10 CSR 10-6.030(22) in subsections 5(B) and 5(C). MoDNR did not amend the rule text in response to this comment. Missouri's reliance on test methods incorporated by reference in 10 CSR 10-6.030(22) does not affect the stringency of the rule and remains protective of air quality.

• Doe Run Buick Resource Recycling Division submitted one comment to Missouri stating that it believes the correct lead emission limit to be 0.00043 gr/dscf. MoDNR's response was to remove the reference to the specific numerical standard and to emphasize that Doe Run is still required to meet the Secondary Lead Smelter NESHAP, subpart X, which is incorporated in 10 CSR 10-6.075 as well. See 79 FR 371, June 10, 2014.

Based on a detailed analysis in its TSD of the revisions to the state rule that are listed above, EPA is proposing to approve the revisions to this rule because it promotes clarity by removing no longer needed emission limits for the former Herculaneum primary lead smelter refinery and will not have a negative impact on air quality.

The State submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. The State placed this rule revision on public notice from June 29 through October 4, 2008. MoDNR responded to all three comments received. As explained above, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

The EPA is proposing to approve Missouri's request to revise 10 CSR 10-6.120. We are processing this as a proposed SIP revision because we are soliciting comments on it. Final rulemaking will occur after consideration of any comments received. The EPA is soliciting comment on the substantive and administrative revisions detailed in this document and in the TSD. EPA is not soliciting comment on existing rule text that has been previously approved by EPA into the SIP.

In this document, the EPA is proposing to include regulatory text in an EPA final rule that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the Missouri Regulations described in the proposed amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 7 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

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

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

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

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

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

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

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

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

• Is not subject to requirements of the National Technology Transfer and Advancement Act (NTTA) because this rulemaking does not involve technical standards; and

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

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

For the reasons stated in the preamble, the EPA proposes to amend 40 CFR part 52 as set forth below:

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

On March 12, 2008, the EPA promulgated a new NAAQS for ozone, revising the levels of the primary and secondary 8-hour ozone standards from 0.08 parts per million (ppm) to 0.075 ppm. 1 More recently, on October 1, 2015, the EPA promulgated and revised the NAAQS for ozone, further strengthening the primary and secondary 8-hour standards to 0.070 ppm. 2 The October 1, 2015 standards are known as the 2015 ozone NAAQS.

Under sections 110(a)(1) and (2) of the CAA, after the promulgation of a new or revised NAAQS states are required to submit infrastructure SIPs to ensure their SIPs provide for implementation, maintenance, and enforcement of the NAAQS. 3 These submissions must contain any revisions needed for meeting the applicable SIP requirements of section 110(a)(2), or certifications that the existing SIPs already meet those requirements. The EPA highlighted and explained this statutory requirement in a series of guidance documents. 4

CAA section 110(a)(1) provides the procedural and timing requirements for SIP submissions after a new or revised NAAQS is promulgated. Section 110(a)(2) lists specific elements the SIP must contain or satisfy. These infrastructure elements include requirements such as modeling, monitoring, and emissions inventories, which are designed to assure attainment and maintenance of the NAAQS. The elements that are the subject of this action are listed below.

• 110(a)(2)(A): Emission limits and other control measures.

• 110(a)(2)(B): Ambient air quality monitoring/data system.

• 110(a)(2)(C): Program for enforcement of control measures.

• 110(a)(2)(D): Interstate transport.

• 110(a)(2)(E): Adequate resources and authority, conflict of interest, and oversight of local governments and regional agencies.

• 110(a)(2)(F): Stationary source monitoring and reporting.

• 110(a)(2)(G): Emergency powers.

• 110(a)(2)(H): Future SIP revisions.

• 110(a)(2)(J): Consultation with government officials, public notification, and prevention of significant deterioration (PSD) and visibility protection.

• 110(a)(2)(K): Air quality modeling/data.

• 110(a)(2)(L): Permitting fees.

• 110(a)(2)(M): Consultation/participation by affected local entities.

A detailed discussion of each of these elements for Utah is contained in section III of this document.

The Utah 2015 ozone NAAQS infrastructure SIP submissions demonstrates how the State, where applicable, has plans in place that meet the requirements of section 110 for the 2015 ozone NAAQS. The State submittals are available in the electronic docket for today's proposed action at www.regulations.gov. 5

The Utah Department of Environmental Quality (UDEQ) submitted a certification of Utah's infrastructure SIP for the 2015 ozone NAAQS on January 29, 2020. The State's submission references the current Utah Division of Air Quality (UDAQ) Rules (UAR). 6

The EPA is acting upon SIP submissions from Utah that address the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2015 ozone NAAQS. The requirement for states to make a SIP submission of this type arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon the EPA taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must address.

Whenever the 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. This particular type of SIP submission is commonly referred to as an “infrastructure SIP.” These submissions must meet the various requirements of CAA section 110(a)(2), as applicable. The 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. 7 Unless otherwise noted below, we are following that approach in acting on this submission. In addition, in the context of acting on infrastructure submissions, the EPA generally evaluates the state's SIP for facial compliance with statutory and regulatory requirements, not for the state's implementation of its SIP. 8 The EPA has other authority to address any issues concerning a state's implementation of the rules, regulations, consent orders, and other materials that comprise its SIP.

Section 110(a)(2)(A) requires SIPs to 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 of this Act.

Multiple SIP-approved UDAQ Rules cited in Utah's certification provide enforceable emission limitations and other control measures, means or techniques, schedules for compliance, and other related matters necessary to meet the requirements of the CAA section 110(a)(2)(A) for the 2015 NAAQS. The State's submission cites SIP section I ( Legal Authority ), which allows the adoption of emission standards and other limits necessary for attainment and maintenance of the NAAQS. SIP section I, in combination with other specific control measures adopted by the Utah Air Quality Board (AQB), and multiple SIP-approved state air quality regulations cited in Utah's certification, including SIP sections II ( Review of New and Modified Air Pollution Sources ), VIII ( Prevention of Significant Deterioration ), IX ( Part D: 8 Hour Ozone Provisions ), X ( Part A, B, C: Vehicle Inspection and Maintenance Program General Provisions ), ozone Reasonable Available Control Technology (RACT) rules and R307-325 ( Ozone Nonattainment and Maintenance Areas: General Requirement ), R307-326 ( Ozone Nonattainment and Maintenance Areas: Control of Hydrocarbon Emissions ), R307-327 ( Ozone Nonattainment and Maintenance Areas: Petroleum Liquid Storage ), R307-328 ( Gasoline Transfer and Storage ), R307-335 ( Ozone Nonattainment and Maintenance Areas: Degreasing and Solvent Cleaning Operations ), R307-340 ( Ozone Nonattainment and Maintenance Areas: Surface Coating Processes ) provide enforceable emission limitations and other control measures, means of techniques, schedules for compliance, and other related matters necessary to meet the requirements of the CAA section 110(a)(2)(A) for the 2015 ozone NAAQS, subject to the following clarifications. 9

The EPA does not consider the SIP requirements triggered by the nonattainment area mandates in part D of Title 1 of the CAA to be governed by the submission deadline of section 110(a)(1). Nevertheless, Utah has included some SIP provisions originally submitted in response to part D requirements in its certification for the infrastructure requirements of section 110(a)(2). For the purposes of this action, the EPA is reviewing any rules originally submitted in response to part D requirements solely for the purposes of determining whether they support a finding that the State has met the basic infrastructure requirements of section 110(a)(2). For example, in response to the requirement to have enforceable emission limitations under section 110(a)(2)(A), Utah's certification (contained within this docket) generally listed provisions within its SIP which regulate pollutants through various programs, including its stationary source permit program, which requires sources to demonstrate that emissions will not cause or contribute to a violation of any NAAQS. The EPA is approving those rules as meeting the requirement to have enforceable emission limitations on ozone precursors; any judgment about whether those emission limitations discharge the State's obligation to impose RACT under part D will be made separately, in an action reviewing those rules pursuant to the requirements of part D. This suffices, in the case of Utah, to meet the requirements of section 110(a)(2)(A) for the 2015 ozone NAAQS.

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.”

As discussed in Utah's submission, the UDEQ periodically submits a Quality Management Plan and a Quality Assurance Project Plan to the EPA. These plans cover procedures to monitor and analyze data. As part of the monitoring SIP, Utah submits an Annual Monitoring Network Plan (AMNP) each year for the EPA's approval.

A comprehensive AMNP, intended to fully meet the federal requirements, was submitted to the EPA by Utah on July 3, 2019 and subsequently approved by the EPA. 10 Utah's SIP-approved regulations provide for the design and operation of its monitoring network, reporting of data obtained from the monitors, and annual network review including notification to the EPA of any changes, and public notification of exceedances of NAAQS. As described in its submission, Utah operates a comprehensive monitoring network, including ozone monitoring, compiles and analyzes collected data, and submits the data to the EPA's Air Quality System on a quarterly basis.

Based on this information, we are proposing to approve the Utah SIP as meeting the requirements of CAA section 110(a)(2)(B) for the 2015 ozone NAAQS.

To generally meet the requirements of section 110(a)(2)(C), the State is required to have SIP-approved PSD, nonattainment New Source Review (NSR), and minor NSR permitting programs that are adequate to implement the 2015 ozone NAAQS. As explained elsewhere in this action, the EPA is not evaluating nonattainment-related provisions, such as the nonattainment NSR program required by part D of the Act. The EPA is evaluating the State's PSD program as required by part C of the Act, and the State's minor NSR program as required by 110(a)(2)(C).

The State's submissions for the 2015 ozone infrastructure requirements cite SIP section I ( Legal Authority ), which provides for enforcement of applicable laws, regulations, and standards, including injunctive relief, and also provides authority to prevent construction, modification, or operation of any stationary source at any location where emissions from such source will prevent the attainment or maintenance of a national standard or interfere with PSD requirements.

With respect to Element (C), the EPA interprets the CAA to require each state to make an infrastructure SIP submission for a new or revised NAAQS demonstrating that the air agency has a complete PSD permitting program meeting the current requirements for all regulated NSR pollutants. The requirements for Element (J) in relation to a comprehensive PSD permitting program are the same as the requirements with respect to Element (C). 11

Utah has shown that it has a PSD program in place that covers all regulated NSR pollutants, including greenhouse gases (GHGs). SIP section VIII ( Prevention of Significant Deterioration ) applies to all air pollutants regulated under the CAA. Utah implements the PSD program by, for the most part, incorporating by reference the Federal PSD program located in 40 CFR 52.21 as it existed on a specific date. On April 13, 2020, we proposed to approve portions of a Utah SIP revision revising the date of incorporation by reference of the Federal PSD program to July 1, 2018. 12 With this Utah SIP revision, the Utah SIP now generally reflects all changes to PSD requirements that the EPA has promulgated through the revised date of incorporation by reference.

For the above reasons, the EPA is proposing to approve Utah's SIP for the 2015 ozone NAAQS with respect to the requirement in section 110(a)(2)(C) to include a permit program in the SIP as required by part C of the Act.

The State has a SIP-approved minor NSR program, adopted under section 110(a)(2)(C) of the Act. 13 Since approval of the minor NSR program, the State and the EPA have relied on the program to assure that new and modified sources not captured by the major NSR permitting programs do not interfere with attainment and maintenance of the NAAQS. Utah's minor NSR program, as approved into the SIP, covers the construction and modification of stationary sources of regulated NSR pollutants, including PM 2.5 , lead, and ozone and its precursors.

The EPA is proposing to approve Utah's infrastructure SIP for the 2015 ozone NAAQS with respect to the general requirement in section 110(a)(2)(C) to include a program in the SIP that regulates the enforcement, modification, and construction of any stationary source as necessary to assure that the NAAQS are achieved.

CAA section 110(a)(2)(D)(i) consists of four separate elements, or “prongs.” CAA section 110(a)(2)(D)(i)(I) requires SIPs to contain adequate provisions prohibiting emissions that will contribute significantly to nonattainment of the NAAQS in any other state (prong 1), and adequate provisions prohibiting emissions that will interfere with maintenance of the NAAQS by any other state (prong 2). CAA section 110(a)(2)(D)(i)(II) requires SIPs to contain adequate provisions prohibiting emissions that will interfere with any other state's required measures to prevent significant deterioration of its air quality (prong 3), and adequate provisions prohibiting emissions which will interfere with any other state's required measures to protect visibility (prong 4). This proposed action will not address the prongs 1, 2, and 4 portions of the Utah 2015 ozone infrastructure SIP. We will act on these portions of Utah's infrastructure SIP in a separate rulemaking action.

As to in-state sources subject to PSD permitting, the prong 3 (PSD) requirement of CAA section 110(a)(2)(D)(II) may be met for all NAAQS by a state's confirmation in an infrastructure SIP submission that new major sources and major modifications in the state are subject to a comprehensive EPA-approved PSD permitting program in the SIP that applies to all regulated NSR pollutants and that satisfies the requirements of the EPA's PSD implementation rule(s). 14 As discussed above in connection with Element (C), Utah has provided that confirmation by demonstrating that it has a federally approved PSD program, current as of the most recent revisions to 40 CFR 52.21.

In-state sources that are not subject to PSD permitting—that is, in-state sources not subject to PSD for any one or more of the pollutants subject to regulation under the CAA because they are in a nonattainment area for a NAAQS related to those particular pollutants—may also have the potential to interfere with PSD in an attainment or unclassifiable area of another state. One way a state may satisfy prong 3 with respect to these sources is by citing the air agency's EPA-approved nonattainment NSR provisions addressing all pollutants for which the state has designated nonattainment areas. Utah has a SIP-approved nonattainment NSR program  15 which ensures regulation of major sources and major modifications in nonattainment areas, and therefore we find that this satisfies prong 3 with regard to this requirement.

Accordingly, the EPA is proposing to approve the infrastructure SIP submission as meeting the applicable prong 3 requirements of section 110(a)(2)(D)(i)(II) for the 2015 ozone NAAQS.

CAA section 110(a)(2)(D)(ii) requires SIPs to include provisions ensuring compliance with the applicable requirements of CAA sections 126 and 115 (relating to interstate and international pollution abatement). CAA section 126 requires notification to neighboring states of potential impacts from a new or modified major stationary source and specifies how a state may petition the EPA when a major source or group of stationary sources in a state is thought to contribute to certain pollution problems in another state. CAA section 115 governs the process for addressing air pollutants emitted in the United States that cause or contribute to air pollution that may reasonably be anticipated to endanger public health or welfare in a foreign country.

To address CAA section 110(a)(2)(D)(ii), Utah states that no sources within the State are the subject of an active finding under CAA section 126 with respect to the 2015 ozone NAAQS, and that there are no final findings under CAA section 115 against Utah with respect to the 2015 ozone NAAQS. In the assessing CAA section 110(a)(2)(D)(ii), we reviewed the information presented by Utah in its 2015 ozone infrastructure SIP submission, as well as relevant portions of the EPA-approved Utah SIP. As required by 40 CFR 51.166(q)(2)(iv), Utah's SIP-approved PSD program requires major new or modified sources to provide notice to states whose air quality may be impacted by the emissions of sources subject to PSD. 16 This suffices to meet the notice requirement of section 126(a). Utah also has no pending obligations under sections 126(c) or 115(b) of the CAA. Therefore, the Utah infrastructure SIP currently meets the requirements of those sections. For these reasons, the EPA is proposing to approve the Utah SIP as fully meeting the requirements of CAA section 110(a)(2)(D)(ii) for the 2015 ozone NAAQS.

Section 110(a)(2)(E)(i) requires each state to provide necessary assurances that it will have adequate personnel, funding, and authority under state law to carry out the SIP (and is not prohibited by any provision of federal or state law from carrying out the SIP or portion thereof). Section 110(a)(2)(E)(ii) requires each state to comply with the requirements respecting state boards under CAA section 128. Section 110(a)(2)(E)(iii) requires each state to “provide necessary assurances that, where the State has relied on a local or regional government, agency, or instrumentality for the implementation of any [SIP] provision, the State has responsibility for ensuring adequate implementation of such [SIP] provision.”

The provisions in Chapter 2 of Title 19 of the Utah Code and Utah SIP section I ( Legal Authority ) provide the UDAQ and the AQB adequate authority to carry out SIP obligations with respect to the 2015 ozone NAAQS. The State receives section 105 grant funds through its Performance Partnership Grant, along with required state matching funds to provide funding necessary to carry out Utah's SIP requirements (Utah SIP section V, Resources ). Utah's Performance Partnership Agreement with the EPA documents that the State has the resources needed to carry out agreed environmental program goals, measures, and commitments, including developing and implementing appropriate SIPs for all areas of the State. Annually, states update these grant commitments based on current SIP requirements, air quality planning, and applicable requirements related to the NAAQS. Furthermore, R307-414, Permits: Fees for Approval Orders, requires the owner and operator of each new major source or major modification to pay a fee sufficient to cover reasonable costs of reviewing and acting upon the notice of intent and implementing and enforcing requirements placed on such source by any approval order issued. Collectively, these rules and commitments provide evidence that UDEQ has adequate personnel, funding, and legal authority to carry out the State's implementation plan and related issues.

With respect to section 110(a)(2)(E)(iii), the regulations cited by Utah in their submittals (Utah SIP section VI, Intergovernmental Cooperation ) also provide the necessary assurances that the State has responsibility for adequate implementation of SIP provisions by local governments. Therefore, we propose to approve Utah's SIP as meeting the requirements of section 110(a)(2)(E)(i) and (E)(iii) for the 2015 ozone NAAQS.

Section 110(a)(2)(E)(ii) requires each state's SIP to contain provisions that comply with the requirements of section 128 of the CAA. Section 128 contains two explicit requirements: (i) That “any board or body which approves permits or enforcement orders under [the CAA] shall have at least a majority of members who represent the public interest and do not derive any significant portion of their income from persons subject to permits or enforcement orders” under the CAA; and (ii) that “any potential conflicts of interest by members of such board or body or the head of an executive agency with similar powers be adequately disclosed.”

On February 14, 2006, EPA approved SIP section 1 ( Legal Authority ) into the Utah SIP as codified in UAR R307-110-2. 17 Utah SIP section 1 ( Legal Authority ) specifies certain requirements regarding the composition of the State board and disclosure by its members of potential conflicts of interest. Details on how this portion of the Procedural Rules meet the requirements of section 128 are provided in our April 26, 2016 proposal. 18 In our August 2, 2016 final action, we correspondingly approved Utah's infrastructure SIP for the 2008 ozone NAAQS for element (E)(ii). 19 Section 128 is not NAAQS-specific, and once the State has met the requirements of section 128, that is sufficient for purposes of section 110(a)(2)(E)(ii) for all NAAQS. Therefore, Utah's SIP continues to meet the requirements of section 110(a)(2)(E)(ii). We are proposing to approve the State's January 29, 2020 SIP submission as meeting the requirements of section 128 because it continues to comply with the statutory requirements and is consistent with the EPA's guidance recommendations concerning section 128.

Under section 110(a)(2)(F), the SIP must require, as may be prescribed by the EPA: (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 the Act, which reports shall be available at reasonable times for public inspection.

In its submission, Utah includes reference to EPA-approved section III ( Source Surveillance ) which describes the State's program of periodic emissions testing, emissions inventories, plant inspections and source monitoring. 20 Additionally, the State cites EPA-approved SIP section II ( Review of New and Modified Air Pollution Sources ) and SIP section VIII ( Prevention of Significant Deterioration ) as the State's program for new or modified sources to submit plans to UDEQ (and receive approval) prior to construction or modification of stationary sources. Utah also cites UAR rules in its submission (including R307-150, R307-165 and R307-170) that require certain large sources to install and maintain continuous emission monitors to assure compliance with emission limitations established in approval orders and the SIP. 21 In addition, Utah provides for monitoring, recordkeeping, and reporting requirements for sources subject to minor and major source permitting.

Additionally, Utah is required to submit emissions data to the EPA for purposes of the National Emissions Inventory (NEI). The NEI is the EPA's central repository for air emissions data. The EPA published the Air Emissions Reporting Rule (AERR) on December 5, 2008, which modified the requirements for collecting and reporting air emissions data (73 FR 76539). The AERR shortened the time states had to report emissions data from 17 to 12 months, giving states one calendar year to submit emissions data. All states are required to submit a comprehensive emissions inventory every three years and report emissions for certain larger sources annually through the EPA's online Emissions Inventory System. States report emissions data for the six criteria pollutants and their associated precursors—nitrogen oxides, sulfur dioxide, ammonia, lead, carbon monoxide, particulate matter and volatile organic compounds. Many states also voluntarily report emissions of hazardous air pollutants. Utah made its latest update to the NEI in November 2019. The EPA compiles the emissions data, supplementing it where necessary, and releases it to the general public through the website https://www.epa.gov/air-emissions-inventories.

Based on the analysis above, we propose to approve the Utah SIP as meeting the requirements of CAA section 110(a)(2)(F) for the 2015 ozone NAAQS.

Section 110(a)(2)(G) of the CAA requires infrastructure SIPs to “provide for authority comparable to that in [CAA Section 303] and adequate contingency plans to implement such authority.” Under CAA section 303, the Administrator has authority to file suit to immediately restrain an air pollution source that presents an imminent and substantial endangerment to public health or welfare, or the environment. If it is not practicable to assure prompt protection by filing suit, then the Administrator has authority to issue temporary administrative orders to protect the public health or welfare, or the environment. Those orders can be extended if the EPA subsequently files a civil suit.

In our April 2016 proposed Utah infrastructure SIP action, we explained how Utah meets the requirement that the plan provide for State authority comparable to that in CAA section 303. 22 For the reasons stated in the April 2016 document, we are proposing to approve the State's submittal for this requirement of section 110(a)(2)(G) with respect to the 2015 ozone NAAQS.

As discussed above, each state must also have adequate contingency plans adopted into the SIP to implement the air agency's emergency episode authority. This can be done by submitting a plan that meets the applicable requirements of 40 CFR part 51, subpart H for the relevant NAAQS, if the NAAQS is covered by those regulations. Evaluating Utah's plan in our 2016 infrastructure SIP action, we found that Utah's air pollution emergency rules, consistent with the subpart H requirements, address ozone (as well as several other pollutants); establish stages of episode criteria; provide for public announcement whenever any episode stage has been determined to exist; and specify emission control actions to be taken at each episode stage. 23 The 2016 action concerned the 2008 ozone standard, but as to ozone, Utah's SIP-approved criteria for emergency episodes remain consistent with the Significant Harm Levels established in EPA's regulations. 24 Accordingly, Utah's contingency plans remain approvable with respect to the 2015 ozone standard.

For these reasons, we propose approval of Utah's SIP as meeting the requirements of CAA section 110(a)(2)(G) for the 2015 ozone NAAQS.

Section 110(a)(2)(H) requires that SIPs provide for revision “(i) from time to time 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), except as provided in paragraph (3)(C), whenever the Administrator finds on the basis of information available to the Administrator that the SIP is substantially inadequate to attain the NAAQS which it implements or to otherwise comply with any additional requirements” under the Act.

Utah SIP section I cites 19-2-104 (describing the powers of the Air Quality Board) and 19-2-109 (the State's Air Conservation Act) and of the Utah Code. We have previously found that these provisions give the AQB sufficient authority to meet the requirements of CAA section 110(a)(2)(H), and find that the basis for that finding is still valid. 25 We therefore propose to approve Utah's SIP as meeting the requirements of CAA section 110(a)(2)(H).

There are two elements identified in CAA section 110(a)(2) that are not governed by the three-year submission deadline of CAA section 110(a)(1) because SIPs incorporating necessary local nonattainment area controls are due on nonattainment area plan schedules pursuant to section 172 and the various pollutant-specific subparts 2 through 5 of part D. These are submissions required by: (i) CAA section 110(a)(2)(C) to the extent that subsection refers to a permit program as required in part D, Title I of the CAA; and (ii) section 110(a)(2)(I) which pertain to the nonattainment planning requirements of part D, Title I of the CAA. As a result, this action does not address CAA section 110(a)(2)(C) with respect to nonattainment NSR or CAA section 110(a)(2)(I).

CAA section 110(a)(2)(J) requires states to provide a process for consultation with local governments and FLMs pursuant to CAA section 121. In addition, states must satisfy the requirements of CAA section 127 concerning measures to notify the public if NAAQS are exceeded in an area, and to enhance public awareness of measures that can be taken to prevent exceedances and of the ways for the public to participate in air quality improvement efforts. Finally, as noted above, CAA section 110(a)(2)(J) requires states to meet applicable requirements of part C, Title I of the CAA related to PSD and visibility protection.

In its submittals, the State cites SIP section I ( Legal Authority ) adopting requirements for transportation consultation, SIP section VI ( Intergovernmental Cooperation ), and SIP section XII ( Transportation Conformity Consultation ) to meet the requirements of CAA section 121. 26 The State has thereby demonstrated that it has the authority and rules in place to provide a process of consultation with general purpose local governments, designated organizations of elected officials of local governments and any Federal Land Manager having authority over federal land to which the SIP applies, consistent with the requirements of CAA section 121. In its submission, Utah cites SIP section XVI ( Public Notification ), which is the State's plan to report monitored levels of emissions both daily and annually, which meets the general requirements of CAA section 127 to notify the public when the NAAQS have been exceeded.

As to the section 110(a)(2)(J) requirement to address Part C's PSD requirements, we have discussed the State's program above in connection with section 110(a)(2)(C). As we have noted, the requirements for Element (J) in relation to a comprehensive PSD permitting program are the same as the requirements with respect to Element (C). Our proposed approval of the State's submissions with respect to Element (C) therefore applies to the PSD component of Element (J).

Finally, with regard to the applicable requirements for visibility protection, the EPA recognizes that states are subject to visibility and regional haze program requirements under Part C of the Act. In the event of the establishment of a new NAAQS, however, the visibility and regional haze program requirements under Part C do not change. Thus, we find that there are no newly applicable visibility requirements under section 110(a)(2)(J) when a new NAAQS becomes effective, and thus no requirement for Utah to address the visibility component of Element (J) in its infrastructure SIP.

For these reasons, we propose to approve the Utah SIP as meeting the requirements of CAA section 110(a)(2)(J) for the 2015 ozone NAAQS.

CAA section 110(a)(2)(K) requires that SIPs provide for (i) the performance of air quality modeling as the Administrator may prescribe for the purpose of predicting the effect on ambient air quality of any emissions of any NAAQS pollutant, and (ii) the submission, upon request, of data related to such air quality modeling to the Administrator. Applicable EPA requirements for air quality modeling for criteria pollutants are found in 40 CFR part 51, appendix W, Guideline on Air Quality Models. 27

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

1. Submitting CBI. Do not submit this information to EPA through regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for preparing your comments. When preparing and submitting your comments, see the commenting tips at https://www.epa.gov/dockets/commenting-epa-dockets.

3. Environmental justice. EPA seeks to achieve environmental justice, the fair treatment and meaningful involvement of any group, including minority and/or low-income populations, in the development, implementation, and enforcement of environmental laws, regulations, and policies. To help address potential environmental justice issues, EPA seeks information on any groups or segments of the population who, as a result of their location, cultural practices, or other factors, may have atypical or disproportionately high and adverse human health impacts or environmental effects from exposure to the pesticide discussed in this document, compared to the general population.

EPA is announcing receipt of a pesticide petition filed under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, requesting the establishment or modification of regulations in 40 CFR part 180 for residues of a pesticide chemical in or on various food commodities. EPA is taking public comment on the request before responding to the petitioner. EPA is not proposing any particular action at this time. EPA has determined that the pesticide petition described in this document contains data or information prescribed in FFDCA section 408(d)(2), 21 U.S.C. 346a(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the pesticide petition. After considering the public comments, EPA intends to evaluate whether and what action may be warranted. Additional data may be needed before EPA can make a final determination on this pesticide petition.

Pursuant to 40 CFR 180.7(f), a summary of the petition that is the subject of this document, prepared by the petitioner, is included in a docket EPA has created for this rulemaking. The docket for this petition is available at http://www.regulations.gov.

As specified in FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), EPA is publishing notice of the petition so that the public has an opportunity to comment on this request for the establishment or modification of regulations for residues of a pesticide chemical in or on various food commodities. Further information on the petition may be obtained through the petition summary referenced in this unit.

PP 9F8780. Syngenta Crop Protection, LLC, 410 South Swing Rd., Greensboro, NC 27409, requests to amend an exemption from the requirement of a tolerance in 40 CFR 180.1254 to include residues of the fungicide Aspergillus flavus strain NRRL 21882 in or on all food and feed commodities of almond; corn, field; corn, pop; corn, sweet; peanut; and pistachio. The petitioner believes no analytical method is needed because a petition for an amendment to the currently existing exemption from tolerance for Aspergillus flavus strain NRRL 21882 has been submitted. Note: In the Federal Register of February 10, 2020 (85 FR 7499) (FRL-10004-54), EPA announced the filing of this petition to amend an exemption from the requirement of a tolerance for residues of Aspergillus flavus strain NRRL 21882 to include residues in or on almond and pistachio. Since that time, the petitioner provided a revised petition requesting a revision to the existing tolerance exemption to include all food and feed commodities of almond; corn, field; corn, pop; corn, sweet; peanut; and pistachio. In order to give the public an opportunity to comment on this new information, EPA is republishing its receipt of this tolerance exemption petition filing with an updated and accurate description.

Executive Summary

Why we need to publish a rule. Under the Act, a species may warrant removal ( i.e., “delisting”) from the Federal List of Endangered and Threatened Plants if it no longer meets the definition of an endangered species or a threatened species. Delisting a species can only be completed by issuing a rule.

What this document does. We propose to remove San Benito evening-primrose ( Camissonia benitensis ) from the Federal List of Endangered and Threatened Plants.

The basis for our action. Under the Act, we may determine that a species is an endangered or threatened species because of any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We have determined that the threats to the species have been reduced or eliminated so that the plant no longer meets the definition of an endangered or threatened species under the Act. We are seeking information and comments from the public regarding this proposed rule and the draft post-delisting monitoring plan for the species. We will also seek peer review.

San Benito evening-primrose, a small annual plant with bright yellow flowers, is found in the central coast range in California's San Benito, Monterey, and Fresno counties. The scientific community's understanding of the San Benito evening-primrose's ecology and habitat has improved since time of listing due to the efforts of the Bureau of Land Management (BLM) to survey and study the plant over the last three decades. We listed San Benito evening-primrose as threatened in 1985 due to ongoing threats of motorized recreation activities and commercial mining operations. At the time of listing, the San Benito evening-primrose was documented in only nine locations in a small area of only San Benito County.

Off-highway vehicle recreation, the greatest persistent threat to the species, has been reduced to levels that no longer pose a significant threat of extinction to San Benito evening- primrose or its habitat due to the closure of the Serpentine Area of Critical Environmental Concern, and the restriction of off-highway vehicle use within the Clear Creek Management Area. Most significantly, the species is much more wide-ranging and common than originally known and occurs across a broader range of habitat types (BLM 2018, p. 32). The number of known occurrences has increased from nine to 79 and the range of the species is now known from three watersheds and occupied habitat covers 63.2 acres (25.6 ha). The species persists through periods of disturbance due to the persistence of a robust and long lived seedbank that facilitates reestablishment, dispersal, and buffers against stochastic events. Annual surveys of San Benito evening-primrose have demonstrated a large amount of interannual variation in numbers of individuals observed. We conclude that the 27 occurrences that have been monitored since 1983 have remained relatively stable around a 5-year moving average when the abnormally high count year (1988) is considered. Furthermore, the significant increase in the number of occurrences detected by recent BLM surveys is not represented in the analysis of the 27 occurrences that were known at the time the Recovery Plan was written. The existing regulatory mechanisms in place are adequate to ensure the continued persistence of San Benito evening-primrose occurrences and suitable potential habitat. Based on the best available information, the intent of the recovery criteria and the recovery goal identified in the Recovery Plan has been met for the species. We, therefore, conclude that San Benito evening-primrose is no longer a threatened species throughout its range, nor is it likely to become so within the foreseeable future.

Peer review. In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review of listing actions under the Act, we will seek the expert opinions of at least three appropriate specialists regarding this proposed rule. The purpose of peer review is to ensure that our classification determinations are based on scientifically sound data, assumptions, and analyses. The peer reviewers have expertise in the biology, habitat, and threats to the species. A peer review panel will conduct an assessment of the proposed rule and the specific assumptions and conclusions regarding the proposed delisting. This assessment will be completed during the public comment period.

Because we will consider all comments and information we receive during the comment period, our final determinations may differ from this proposal. Based on the new information we receive (and any comments on that new information), we may conclude that the species is still warranted for listing. Such final decisions would be a logical outgrowth of this proposal, as long as we: (1) Base the decisions on the best scientific and commercial data available after considering all of the relevant factors; (2) do not rely on factors Congress has not intended us to consider; and (3) articulate a rational connection between the facts found and the conclusions made, including why we changed our conclusion.

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

(1) The extent of any current threats to the species and its habitat.

(2) The potential for shrub encroachment to reduce suitable habitat for the species.

(3) The ability of previously degraded habitat to return to suitable habitat for colonization and/or reintroduction.

(4) The lasting effects of past off-highway vehicle (OHV) use and the level of natural restoration to those areas of suitable habitat disturbed by OHV use.

(5) The potential for climate change to either positively or negatively affect the species.

(6) The climatic conditions under which germination naturally occurs and by which seed set is initiated.

(7) The monitoring guidelines proposed for the post-delisting monitoring plan and whether they appropriately characterize the extent of disturbance and can adequately identify the thresholds at which San Benito evening-primrose can persist.

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

Please note that submissions merely stating support for, or opposition to, the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act 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.”

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, Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT ).

Section 4(b)(5)(E) of the Act provides for one or more public hearings on this proposal, 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 a public hearing on this proposal, if any are requested, and announce the date, time, and place of those hearings, as well as how to obtain reasonable accommodation, in the Federal Register at least 15 days before the first hearing. For the immediate future, we will provide these public hearings using webinars that will be announced on the Service's website, in addition to the Federal Register . The use of these virtual public hearings is consistent with our regulation at 50 CFR 424.16(c)(3).

On February 12, 1985, we listed San Benito evening-primrose as a threatened species (50 FR 5755-5759) based primarily on the threats from motorized recreation and active gravel mining. Nine occurrences of the plant were known at the time, ranging from only 10 to 100 individuals each (50 FR 5755). At the time of listing, we found that designation of critical habitat was not prudent, and no further action regarding critical habitat has been taken (50 FR 5757-5759). Accordingly, we do not address critical habitat in this proposed rule.

A recovery plan for San Benito evening-primrose was published on September 19, 2006 (71 FR 54837-54838) (Recovery Plan). In the Recovery Plan, we noted the need to fully map the extent and range of the species, acknowledging that additional occurrences had been found since listing in 1985. We also noted that, during 20 years of monitoring known occurrences, only 2 of those years had produced large numbers of individuals. This determination led recovery actions to focus heavily on preserving suitable habitat and the seed bank since target numbers of individuals were unlikely to be reliable indicators of population health (USFWS 2006, p. 51).

In 2009, the Service conducted a 5-year review pursuant to 16 U.S.C. 1533(c)(2)(A) to evaluate whether the species' status had changed since listing in 1985 and publication of the Recovery Plan in 2006 (USFWS 2009, entire). In the 5-year review, we reported an increase in the number of known sub-occurrences from 53 in 2006 at the time of the Recovery Plan to 69 in 2009 as well as changes in the management of OHV use.

We published a notice announcing the initiation of a 5-year review of the status of San Benito evening-primrose on June 18, 2018 (83 FR 28251-28254). This proposed rule to remove San Benito evening-primrose from the Federal List of Endangered and Threatened Plants also serves as a status review for the species.

In 2009, a 5-year review was prepared for San Benito evening-primrose. At the time, the review represented a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species. Where we have more recent information than was contained in the 5-year review, we have incorporated it as appropriate into this proposed rule.

San Benito evening-primrose is a small, yellow-flowered, annual species in the evening-primrose family (Onagraceae). The plant is slender with narrowly elliptic leaves 0.3 inches (in) (7-20 millimeters (mm)) in length and minutely serrate. The stem may be erect or decumbent (lying on the ground with the extremity curving upward) and ranges in height from 1.2 to 7.9 in (3-20 centimeters (cm)) with branches widely spreading. Petals are 0.1 to 0.2 in (3.5 to 4 mm) and may fade from yellow to reddish (Wagner 2012, pp. 925-929). San Benito evening-primrose is autogamous (self-fertilizing) and produces seed that persists for long periods of time, which creates well-established seed banks where the species occurs (Taylor 1990, pp. 7-8).

San Benito evening-primrose is known only from the southeastern portion of San Benito County, the western edge of Fresno County, and the northeastern edge of Monterey County, largely within the New Idria serpentinite mass (figure 1). Serpentine is a rock formed from ancient volcanic activity that results in minerals with a greenish and brownish appearance such as antigorite, lizardite, and chrysotile. The New Idria serpentinite mass covers approximately 13,000 hectares (32,124 acres) and is one of the largest serpentine formations in the southern Coast Ranges of California (Rajakaruna et al. 2011, p. 698). Average rainfall in areas occupied by San Benito evening-primrose is 16-17 in (40-42 cm) annually with temperatures ranging from lows of 21 to 34 degrees Fahrenheit (F) (−6.7 to −1.1 degrees Celsius (C)) in the winter to highs of 90 to 100 degrees F (32.2 to 37.8 degrees C) in the summer (USFWS 2009, p. 8). Occupied habitat of San Benito evening-primrose occurs primarily on land managed by the Bureau of Land Management (BLM) (36.5 acres), as well as on private land (26.6 acres).

San Benito evening-primrose occurs at elevations between 1,969 to 3,938 feet (ft) (600 and 1,200 meters (m)) on alluvial terraces and upland geologic transition zones containing sandy to gravelly serpentine derived soil, but may also be found on greywacke, chert, and syenite derived soils (Raven 1969, pp. 332-333, Taylor 1990, pp. 24-36, 39-42, BLM 2018, pp. 17-19). Alluvial terrace habitat is characterized by serpentine soils that are deeper and better developed than neighboring slopes, generally flat (<3 degrees slope), and contain less than 25 percent cover of chaparral or woody vegetation (Taylor 1990, pp. 69, 71-72, USFWS 2006, p. 13). Geologic transition zone habitat is characterized by sandy soils within uplands on slopes between 15 degrees and 60 degrees as well as rock outcrops and talus (Dick et al. 2014, p. 167, BLM 2018, p. 18). The transition zone that the habitat type refers to is the boundary between serpentine masses and non-serpentine rock (BLM 2014, pp. 110-112). Generally, alluvial habitat is found closer to water and in association with Quercus durata (leather oak), Arctostaphylos spp. (manzanita), Pinus jeffreyi (Jeffrey pine), P. sabiniana (bull pine), and P. coulteri (Coulter pine). Geologic transition zone habitat is found far from water and in association with Q. douglassii (blue oak), Juniperus californicus (California juniper), and Q. berberidifolia (scrub oak) (Dick et al. 2014, p. 167).

The BLM first identified the geologic transition zone habitat type in 2009 through surveys of potential habitat and known occurrences of San Benito evening-primrose. The discovery of the new habitat type, and associated new occurrences, increased the number of known point locations from 69 in 2009 to 658 in 2018 (BLM 2018, p. 32). The difference between geologic transition zone habitat and alluvial terrace habitat suggested the possibility that there were two genetically distinct lineages of San Benito evening-primrose or that the species may be hybridizing with the close relatives plains evening primrose ( C. contorta ) and sandysoil suncup ( C. strigulosa ). However, it was determined that hybridization was not occurring and that watersheds and habitat type did not explain any genetic differences that were identified (Dick et al. 2014, entire). The findings suggest that the known occurrences of San Benito evening-primrose are all part of the same genetic population (Dick et al. 2014, entire).

The BLM has been conducting surveys for San Benito evening-primrose since 1980 within the Clear Creek Management Area, where the majority of sub-occurrences are located. The surveys conducted by the BLM have resulted in an increase in the understanding of the range of the species, habitat preferences, life history, and numbers (BLM 2018, entire). The monitoring has resulted in the identification of 658 point locations occurring within and outside of the boundary of the Clear Creek Management Area (CCMA), including a substantial number on private land (5 known point locations in 2009 and 290 known point locations in 2018). The species' current known range is bordered on the north by New Idria Road near the confluence of Larious Creek and San Carlos Creek, to the South at the Monterey County Line near Lewis Creek, to the west near the Hernandez Reservoir, and to the east by the eastern boundary of the serpentine area of critical environmental concern (ACEC), an area of approximately 307 square miles. The BLM's ACEC designations highlight areas where special management attention is needed to protect important historical, cultural, and scenic values, or fish and wildlife or other natural resources. ACECs can also be designated to protect human life and safety from natural hazards. The known occurrences cover 64 ac (26 ha) of public and private land, and potential suitable habitat is currently estimated at 260 ac (105 ha) (BLM 2018, p. 31). The findings of the BLM have been documented in annual reports from 2009 to 2018 and are the source of the most recent information regarding the status of the occurrences of San Benito evening-primrose.

This document presents data that was provided by the BLM within the 2018 Annual Report (BLM 2018, entire) and from spatial data provided by the BLM in 2018. Within this report a single “occurrence” refers to areas where San Benito evening-primrose has been mapped. Mapped areas within 0.25 mi (0.4 km) of each other, but discontinuous, are considered a single occurrence consisting of multiple sub-occurrences. The BLM has recorded point data, in addition to polygon sub-occurrences for San Benito evening-primrose, which are referred to as point locations in this report. Point locations are mapped point features while sub-occurrences are mapped polygon features. In 2018, 79 occurrences, consisting of 519 sub-occurrences, and 658 point locations were mapped by the BLM (table 1) (BLM 2018, p. 32; BLM 2018, spatial data).

The BLM compared historical occurrence data to their point location counts in their annual reports, and Service used those comparisons in the Recovery Plan (USFWS 2006, entire) and 5-Year Review (USFWS 2009, entire). Here, we have chosen to update the occurrence organization because the numbers of occurrences, sub-occurrences, and point locations have increased dramatically since 2009. Table 1 illustrates the nested nature of the way the data are presented. When possible we use the same terminology as previous reports.

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: “[O]bjective, 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 an endangered species or threatened species (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.” Therefore, recovery criteria should help indicate when we would anticipate that an analysis of the species' status under section 4(a)(1) would result in a determination that the species is no longer an endangered species or threatened species.

Thus, 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 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 meets the definition of an endangered species or a threatened species, regardless of whether that information differs from the recovery plan. Below, we summarize the recovery plan goals and discuss progress toward meeting the recovery objectives and how they inform our analysis of the species' status and the stressors affecting it.

The Recovery Plan (USFWS2006, pp. 48-74) describes the recovery goal and criteria that need to be achieved in order to consider removing San Benito evening-primrose from the Federal List of Endangered and Threatened Plants. We summarize the goal and then discuss progress toward meeting the recovery criteria in the following sections.

In the Recovery Plan, the stated goal is to restore occurrences of San Benito evening-primrose so that they are self-sustaining and protected from future threats (USFWS 2006, p. 51). This goal is broadly evaluated through trends in the observed numbers of individuals indicated by annual monitoring, the abundance and distribution of suitable habitat, evaluation of the seed bank, and the effectiveness of protective measures that have been implemented to reduce threats from human activities such as mining, OHV use, and other recreational activity (USFWS2006, pp. 51-52). In order to evaluate threats to the species we must consider potential impacts within the foreseeable future. The Recovery Plan (USFWS 2006, entire) uses 20 years as the appropriate period of time to evaluate population stability because the number of individuals fluctuates widely from year to year and a longer monitoring time will better reflect changes in trends despite this variation (USFWS 2006, p. 51, 53). Given this and information on potential threats into the future, in this proposed rule we have adopted 20 to 30 years as the foreseeable future to evaluate potential threats and the species' responses to those threats.

The Recovery Plan identified five criteria for removing San Benito evening-primrose from the Federal List of Endangered and Threatened Plants (USFWS 2006, pp. 52-54):

(1) Research has evaluated the possibility for restoration of suitable habitat and the natural rate of the replacement of suitable habitat ( i.e., succession from open habitat to woody vegetation), the ecology of the seedbank, and population viability modeling. The results of completed research, and any other research that was conducted, should inform all other recovery criteria suggested by the Recovery Plan and are listed below.

(2) Known occurrences and sufficient additional suitable habitat within each watershed unit throughout its range are protected from direct effects from OHV use and other recreational activities. Appropriate levels of compliance with use regulations by recreationists have prevented adverse impacts to San Benito evening-primrose occurrences and habitat.

(3) Currently occupied and suitable habitat for the species has been restored and maintained over an appropriate period of time, as informed by monitoring and research. Twenty years was estimated as “the appropriate period of time” in the Recovery Plan (USFWS 2006, p. 53). The Recovery Plan emphasizes maintaining suitable habitat and more precisely defining the requirements of suitable habitat. Additionally, disturbance and erosion rates should not be elevated above natural levels and the seed bank should be evaluated for continued persistence, as above-ground numbers of individuals are known to fluctuate widely from year to year.

(4) Population sizes have been maintained over a monitoring period that includes multiple rainfall cycles (successive periods of drought and wet years). The Recovery Plan states that the trend of above-ground counts of species should be stable or increasing and defines non-drought years as those with greater than 15 in (38 cm) of rainfall from October through April at the Priest Valley weather station.

(5) A post-delisting monitoring plan for San Benito evening-primrose has been developed.

Criterion 1: Research has been completed.

Research to increase the understanding of the extent of existing occurrences, the range of suitable habitat, the persistence of the seed bank, and analysis of the genetic variability across watersheds and habitat types have been undertaken since listing in 1985 (Taylor 1990, entire; BLM 2010, entire; BLM 2014, entire; BLM 2015, entire; BLM 2018, entire; Dick et al. 2014, entire).

Habitat Suitability. Research conducted in 1990 (Taylor 1990, entire) provided the first comprehensive overview of the ecology of San Benito evening-primrose that established the initial understanding for the requirements of suitable habitat for the species, the species' life history, including early examination of the seed bank and germination characteristics, and the known distribution of the species as well as threats to the known occurrences. From 1990 through 2010, San Benito evening-primrose was thought to be restricted to alluvial terrace habitat that was characterized by relatively deep and well-developed, serpentine-derived soils on flat ground (compared to nearby barren serpentine slopes), association with ephemeral or intermittent streams, and open habitat lacking woody vegetation (Taylor 1990, pp. 39-40). In 2010, the BLM identified a second type of habitat, termed the “geologic transition zone,” that was suitable for San Benito evening-primrose (BLM 2010, pp. 8-16). The geologic transition zone was characterized by relatively steeper slopes (0-~60 degrees) of uplands on serpentine soils at the interface with non-serpentine soils. Geologic transition zone habitat is not topographically constrained to the toe of slopes, whereas alluvial stream terrace habitat is. From the time of listing through 2018, the BLM conducted extensive surveys within these habitat types, which led to the discovery and documentation of over 600 new point locations. The results indicated that the majority of both occupied and potential habitat is greatest within the geologic transition zone type (BLM 2018, p. 32). The new sub-occurrences identified within the geologic transition zone habitat are relatively undisturbed in comparison to the highly disturbed sites of the initial locations known from alluvial stream terraces (BLM 2010, p. 11). The majority of new point locations are found outside of the historical areas used by OHVs and as a result have not been subjected to the same levels of disturbance. Approximately one-third to half of the currently known occurrences exist on private land outside of the Clear Creek Management Area (table 2, table 3) (BLM 2018, p. 33).

Seed Bank Analysis. Our understanding of the role of the seed bank in the life history of San Benito evening-primrose has similarly increased due to research efforts. The number of viable seeds within the seed bank was often many times greater than the above-ground expression in any given year—including those years in which there was a large above-ground expression (Taylor 1990, p. 57). The size of the seed bank at existing locations was reevaluated in 2010 by the BLM (BLM 2011, pp. 36-42). The BLM found that there were 519 times as many seeds as emergent plants when averaged across 67 sub-occurrences in 2010, emphasizing that the size of the seedbank is much greater than the total number of observed individuals in a given year. Maintaining a large amount of seed within the soil is a common strategy for short-lived annuals in habitats with frequent disturbance because the persistent seed bank buffers against stochastic environmental events such as drought (Kalisz and McPeek 1993, pp. 319-320; Fischer and Matthies 1998, pp. 275-277; Adams et al. 2005, p. 434). In species that develop large seed banks, it is not uncommon to see no above-ground expression one year and to see a large expression the following year, and this pattern has been well-documented with San Benito evening-primrose (BLM 2018, p. 11).

Disturbance Ecology. Frost heaving (the expansion and contraction of water within the soil during freeze-thaw cycles), small mammal soil disturbance ( e.g., gopher burrowing), sediment movement from adjacent slopes, and erosion from stream flows were identified as the primary sources of natural disturbance experienced by San Benito evening-primrose (Taylor 1990, pp. 39-42, 57). Quantifiable measures of erosion (natural or anthropogenic) and a scale to measure disturbance severity and persistence, as well as the corresponding effect to San Benito evening-primrose and associated species, have not been developed. While San Benito evening-primrose tolerates, and is adapted to, disturbance from natural processes, anthropogenic disturbances from activities such as mining, road and building construction, and OHV use are much more severe and may lead to loss of habitat through soil removal, soil compaction, and increased rates of erosion (BLM 2010, p. 29, Snyder et al. 1976, pp. 29-30, Brooks and Lair 2005, p. 7, Groom et al. 2007, pp. 130-131, Lovich and Bainbridge 1999, pp. 315-317, Switalski et al. 2017, p. 88). Alluvial terrace habitat that was greater than 50 percent disturbed from OHV use was considered to be unsuitable for San Benito evening-primrose (Taylor 1990, p. 71; USFWS 2006, p. 13). Geologic transition zone habitat was not considered here because it had not yet been recognized as suitable habitat, but tends to have less OHV disturbance than alluvial terrace habitat. The seed bank of San Benito evening-primrose is very large, and the amount of seed present is many times greater than the amount of individuals that germinate in any given year (Taylor 1990, p. 57, BLM 2011, pp. 33-42). Additionally, the BLM found that the majority of the existing seed bank is found within the top 1 to 3 in (4 to 8 cm) of soil (BLM 2013, pp. 19-34). As a result, any damage to, or loss of, the top layer of soil has the potential to negatively affect the ability of the species to persist through time.

Recolonization. Natural rates of recolonization of native flora in arid environments following disturbance have been estimated to be between 65-76 years for a return to predisturbance cover of annuals and perennials, and from 148-215 (and greater) years for a return to predisturbance species composition and cover (Abella 2010, pp. 1,258-1,260, Berry et al. 2015, pp. 149-150). Persistent OHV use reduced the number of Astragalus magdalenae var. peirsonii (Peirson's milk-vetch) by 4-5 times the amount of comparable undisturbed areas (Groom et al. 2006, pp. 126-127). The reduction in mature individuals led to a decrease in the amount of seeds produced and suggested that persistent impacts from OHVs over extended periods of time may result in the depletion of the existing seedbank (Groom et al. 2006, pp. 131-132). We can use this information as an indicator of how San Benito evening-primrose recolonization may be similarly affected by OHV.

The Recovery Plan recommends target numbers of individuals for a sub-set (27) of the known occurrences of San Benito evening-primrose (USFWS 2006, pp. 56-58). These occurrences also generally have the longest record of survey data and include the initial occurrences described in Taylor (1990, entire). Data from the BLM indicate that, despite cessation of OHV use in 2008, the number of individuals observed annually at these occurrences has not increased and may be decreasing (figure 2). The 5-year moving average indicates a decrease in the average number of individuals from 1988 through 1993 followed by stable to slightly increasing numbers of individuals. However, 1988 was an abnormal year, and the number of individuals counted during surveys was significantly greater than any other recorded year. The abnormally high numbers of individuals identified that year have a large effect on the observed trend in annual number of individuals. These data are consistent with available literature that suggests that a return to predisturbance conditions likely occurs on time scales of greater than 65-76 years and possibly even greater than 150 years.

Population Genetics. The occurrences of San Benito evening-primrose that the BLM began finding within geologic transition zone habitat were at first thought to be genetically distinct from occurrences within alluvial terrace habitat. The new occurrences were also located within different watersheds from the first known occurrences, and there was some question as to whether or not the species may be hybridizing with a close relative, Camissonia strigulosa (contorted primrose). If the occurrences were genetically distinct, recovery actions, such as restoration of degraded habitat and out-planting efforts, would need to be identified for each habitat type. There were three distinct genetic clusters of San Benito evening-primrose found but none of the genetic clusters coincided with type of habitat or watershed (Dick et al. 2014, entire). Additionally, the same study found no evidence of hybridization between San Benito evening-primrose and contorted primrose. Because the genetic diversity identified within the occurrences was widespread and uncorrelated with habitat and watershed, future out-planting efforts would not need to be restricted to genetic type. The study instead concluded that seed from different occurrences should be mixed to increase diversity across the entire geographic range. In summary, research to increase the understanding of the extent of existing occurrences, the range of suitable habitat, the persistence of the seed bank, and analysis of the genetic variability across watersheds and habitat types have been undertaken fulfilling recovery criterion 1.

Criterion 2: Known occurrences and sufficient additional suitable habitat within each watershed unit throughout its range are protected from direct effects from OHV use and other recreational activities.

Wire fencing, steel pipe barriers, signage, and enforcement of trail restrictions were used to protect San Benito evening-primrose and suitable habitat prior to the 2006 amendment to the Resource Management Plan. The 2006 amendment to the Resource Management Plan closed to OHVs all areas not marked for limited or open use. This restricted the total OHV use area to 242 miles (390 km) of OHV trails and directed OHV use away from areas that provided suitable habitat for, or were occupied by, San Benito evening-primrose (BLM 2006 p. 3-1). By 2009, non-compliance with the 2006 Resource Management Plan had declined (BLM 2008, pp. 5-9; USFWS 2009, pp. 19-21). In 2008, the EPA issued a report concluding that exposure to naturally occurring asbestos during recreational activities, including OHV use, was higher than the acceptable risk range for causing cancer within the CCMA (EPA 2008, p. 6-3). The level of exposure to asbestos varied with recreational activity and participant age, but was significant enough to warrant an emergency temporary closure of the CCMA (BLM 2008, p. 2). Although not the intent, the closure effectively temporarily protected all known occurrences of San Benito evening-primrose from OHV disturbance. The temporary closure remained in place until the 2014 amendment to the Resource Management Plan was adopted (BLM 2014, entire). The 2014 Resource Management Plan further restricted OHV access to areas of suitable habitat and known sub-occurrences of San Benito evening-primrose by reducing the amount of open trails and restricting access to the Serpentine Area of Critical Environmental Concern (ACEC) to 5 days per year per recreationalist through a permit system and a series of locked gates (BLM 2014, pp. 1-18).

The BLM has conducted OHV non-compliance monitoring as part of the annual San Benito evening-primrose surveys since 2008 and the initial closure of the Serpentine ACEC (table 2). During this time non-compliance has remained relatively low with the number of point locations or potential habitat being impacted by OHV ranging from 2 to 11 locations in a given year. The amount of disturbance within each area has been observed to be low, and natural recovery was observed. Upper Clear Creek, Larious Canyon, and San Carlos Creek are areas of repeated non-compliance despite annual repairing of fencing and barriers and issuance of citations for violating the closures when users are caught (BLM 2013, p. 5, BLM 2015, p. 6). The intensity of non-compliance varied from heavy (greater than 10 tracks observed) to moderate or low (less than 10 tracks observed). The BLM assumes that non-compliant OHV use originates from private land adjacent to the CCMA.

By 2014, the number of known point locations of San Benito evening-primrose had grown to 500 with the majority occurring within the geologic transition zone habitat. Approximately half of those locations were protected from OHV use due to the restrictions imposed by the 2014 Resource Management Plan (BLM 2014, pp. 1-18; BLM 2015, pp. 7-16). By 2018, 658 point locations of San Benito evening-primrose had been mapped by the BLM (BLM 2018, pp. 32-47). The 658 point locations correspond to 79 occurrences consisting of 519 sub-occurrences and covering 63.2 acres (25.6 ha) (table 1, figure 1). Twenty-three occurrences (81 sub-occurrences) are located within the Serpentine ACEC and are effectively protected from OHV use due to the 2014 Resource Management Plan (BLM 2018, p. 33) (table 3). There are 36 occurrences (260 sub-occurrences) within BLM-managed land outside of the Serpentine ACEC. OHV use within the CCMA, but outside of the Serpentine ACEC, has been designated as “limited,” meaning that motorized use is restricted to highway-licensed vehicles and ATVs and utility task vehicles on designated routes only (BLM 2014, pp. 1-13 through 1-14). Forty-five occurrences (178 sub-occurrences) are known to occur on private land that are not subject to management by the BLM or other Federal agencies (table 3, table 4).

When the recovery plan criteria were written, there were 27 known occurrences. Twenty- three of those occurrences were on land managed by the BLM, and four were on private property. Currently, there are 59 occurrences on BLM-managed land and 45 occurrences on private property. Although protections for the occurrences on private land cannot be guaranteed, the number of occurrences on land managed by the BLM has exceeded the goal of Recovery Criterion 2 through discovery of new occurrences.

The majority of the known occurrences and sub-occurrences occur within the geologic transition zone identified by the BLM as habitat in 2010 (table 4). Occurrences of San Benito evening-primrose within geologic transition zone habitat are assumed to be less likely to be affected by OHV recreation since OHV riders have historically preferred the terrain associated with alluvial terrace habitat (BLM 2010, p. 11). In summary, known occurrences and sufficient additional suitable habitat within each watershed unit throughout its range are protected from direct effects from OHV use and other recreational activities, fulfilling recovery criterion 2.

Criterion 3: Currently occupied and suitable habitat for the species has been restored and maintained over an appropriate period of time, as informed by monitoring and research.

In the Recovery Plan, 20 years was identified as the appropriate period of time to conduct and evaluate the success of restoration activities. Twenty years was chosen to allow enough time for observations of natural and restored occurrences during non-drought years to be made in order to evaluate the stability of San Benito evening-primrose occurrences (USFWS 2006, pp. 53-54). Thirty-three years have passed since San Benito evening-primrose was listed by the Service as a threatened species. Restoration began prior to listing by using fencing to discourage disturbance by OHVs (Taylor 1990, pp. 24-36, 71). The BLM has continued to implement passive restoration measures such as installation of additional wire fencing and steel pipe barriers to reduce OHV trespass and signage to promote awareness of the natural resources (BLM 2018 pp. 50-56). Photopoint monitoring has demonstrated an increase in the amount of woody vegetation cover in previously open and disturbed areas. The increase in woody vegetation cover suggests that fencing and other barriers have been effective in reducing ground disturbance from OHV use prior to the temporary closure in 2008 and the permanent restrictions in 2014.

Seed of San Benito evening-primrose was introduced between 1990 and 1991 at six areas near existing point locations. At five of the reintroduction sites, 30,000 seeds were broadcast into areas that were each 2,153 ft 2 (200-300 m 2 ) in area. Sixty thousand seeds were broadcast into the sixth site (BLM 2013, Excel data, Taylor 1993, p. 14). Very few plants, relative to the amount of seed reintroduced, were observed (between 3 and 147 plants) in the years immediately following the seeding. It has been determined that San Benito evening-primrose establishment from artificially sown seed is very low and that seeding introduction is not likely to be a successful restoration tool (Taylor 1993, p. 14). The areas where seed was introduced have continued to have small numbers of individuals observed each year. Approximately 3,000 seeds were sown in 2008 and 2012 in areas where San Benito evening-primrose had not been observed but where potential habitat existed that could support new occurrences. The number of individuals at these areas have remained similarly low ranging from 0 to 320 individuals in a single year (BLM 2018, pp. 34-47).

Restoration of five staging areas located on stream terraces that were heavily degraded from OHV use and mining (prior to 1939) was completed in 2010 (BLM 2011, pp. 4-10). The staging areas were characterized by a mix of lack of vegetation, soil compaction, buried original soil surface, debris from facilities, and erosion on adjacent hillslopes. A total of 2.01 ac (0.81 ha) of San Benito evening-primrose habitat was restored. Annual counts of San Benito evening-primrose at each of the staging areas and associated sub-occurrences have indicated that the number of individuals in any given year fluctuates greatly (BLM 2018, pp. 34-47). Staging areas 1, 4, and 5 have relatively stable annual counts, while staging areas 2 and 3 have had more variable, and possibly slightly declining, annual counts.

The BLM has also undertaken efforts to improve watershed quality by identifying the most appropriate species and methods to restore streambanks (BLM 2011, pp. 10-12). While the immediate stream banks are not suitable habitat for San Benito evening-primrose, restoring natural hydrology and maintaining bank composition can reduce sedimentation and erosion in the watershed that indirectly supports the persistence of San Benito evening-primrose habitat. The BLM found that revegetation of degraded streambanks using sod of Agrostis exarata (spike bentgrass) was most effective. Additionally, six vehicle routes were closed and restored by removing access and ripping the compacted soil (BLM 2011 p. 10). In summary, currently occupied and suitable habitat for the species has been restored and maintained over an appropriate period of time, as informed by monitoring and research, fulfilling recovery criterion 3.

Criterion 4: Population sizes have been maintained over a monitoring period that includes multiple rainfall cycles (successive periods of drought and wet years).

The Recovery Plan recommended a target average number of individuals for 27 occurrences of San Benito evening-primrose (USFWS 2006, pp. 54-58; BLM 2018, pp. 34-35). The target counts were based on past observations of the number of individuals observed during favorable years and were considered to be approximate. Four of the 27 locations with a target number of individuals had an average annual count that met or exceeded the target levels between 1983 and 2017 (USFWS 2006, pp. 56-58; BLM 2018, pp. 34-35; USFWS Review of BLM reporting data). Five of the 27 locations had an annual average count that met or exceeded the target number of individuals when only years with normal precipitation are considered. We consider the average number of individuals because the number of individuals at any given site fluctuate greatly from year to year causing single year counts to be inaccurate measures of the stability of the species (figure 2).

The total annual number of individuals for the same 27 sites has fluctuated around a mean of approximately 9,600 individuals since 1983 (Figure 2). Over time, a slight decrease in the species count is observable, but is small enough to be affected by a single year's count. The slight negative trend is due to a significantly above-average year in 1988 where the total number of individuals observed was an order of magnitude greater than during any other annual count. The 5-year moving average indicates a decrease in the average number of individuals from 1988 through 1993, followed by stable to slightly increasing numbers of individuals. We also recognize that only those occurrences that were known by 2006, and had suggested target numbers of individuals, are represented in the 27 locations. This does not take into consideration the majority of currently known occurrences. Evaluating the trend of each of the 79 occurrences (658 point locations, see table 1) is not feasible because census data for the entirety of known point locations are not available.

The target number of individuals has not been met for 23 of the 27 occurrences with target criteria. However, the target numbers were estimates and the lack of a consistent decline in mean annual counts suggest that, while the occurrences are not increasing in abundance of San Benito evening-primrose, they are not threatened with extinction. The lack of decline in number of individuals over a 27-year monitoring period and an increase in the number of known occurrences indicate that the criteria of maintaining population numbers over an appropriate period of time has been met.

Criterion 5: A post-delisting monitoring plan for the species has been developed.

Section 4(g)(1) of the Act requires us, in cooperation with the States, to implement a system to monitor effectively, for not less than 5 years, all species that have been recovered and delisted (50 CFR 17.11, 17.12). The purpose of this post-delisting monitoring is to verify that a species remains secure from risk of extinction after it has been removed from the protections of the Act. The monitoring is designed to detect the failure of any delisted species to sustain itself without the protective measures provided by the Act. 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 under section 4(b)(7) of the Act. Section 4(g) of the Act explicitly requires us to cooperate with the States in development and implementation of post-delisting monitoring programs, but we remain responsible for compliance with section 4(g) and, therefore, must remain actively engaged in all phases of post-delisting monitoring. We also seek active participation of other entities that are expected to assume responsibilities for the species' conservation post delisting.

Post-delisting Monitoring Guidelines. Post-delisting monitoring is designed to verify that San Benito evening-primrose remains secure from risk of extinction after delisting by detecting changes in trend that indicate that the known occurrences have become unstable and/or are at risk of becoming once again threatened or endangered. The Act has a minimum post-delisting monitoring requirement of 5 years, but a longer period of time may be necessary to account for fluctuations in counts from year to year, potential changes in land use, and climatic variability. If a decline in abundance or a substantial new threat arises, post-delisting monitoring may be extended or modified and the status of the species will be reevaluated. The Service is responsible for establishing a final post-delisting monitoring plan. As the sole Federal entity that manages land where San Benito evening-primrose occurs, the BLM will contribute expertise for development and implementation of the final post-delisting monitoring plan. The draft post-delisting monitoring plan can be found at http://www.regulations.gov in Docket No. FWS-R8-ES-2019-0065. The Service intends to work with the BLM to finalize the post-delisting monitoring plan upon publication of this proposed rule.

Research and survey efforts have clarified the distribution, extent, and habitat characteristics of San Benito evening-primrose. The seed bank has been demonstrated to be prolific and an integral part of the species' ecology in responding to, and persisting through, negative stochastic events. A genetic evaluation of the newly identified sub-occurrences have shown that there is no genetic distinction based upon habitat type or watershed among the different sub-occurrences. Existing research has resulted in a better understanding of the species' ecology and has shown an increase in the species' range, suitable habitat, and number of occurrences. With the currently completed research, the intent of the first recovery criteria has been met.

The second recovery criteria has been achieved through the 2014 Resource Management Plan, which restricted OHV access to areas of suitable habitat and known sub-occurrences of San Benito evening-primrose by reducing the amount of open trails and restricting access to the Serpentine ACEC to 5 days per year per recreationalist through a permit system and a series of locked gates (BLM 2014, pp. 1-18). The identification of a new habitat type, the geologic transition zone, and numerous new point locations have increased the known range and amount of known occupied habitat. The topography and composition of geologic transition zone habitat is not typical of areas preferred by OHV users, and many of the new occurrences of San Benito evening-primrose were not subject to OHV disturbance. As a result, the majority of the currently known occurrences of San Benito evening-primrose have not been disturbed from OHV use. The existing Resource Management Plan (BLM 2014, entire) will continue to provide protection for San Benito evening- primrose occurrences within the Serpentine ACEC and the CCMA through trail restrictions and a permitting system. The Post-delisting Monitoring Plan will provide guidelines for evaluating the species following delisting to detect substantial declines that may lead to consideration of reclassification to threatened or endangered. Changes in land use will still be subject to State and Federal environmental review.

Annual monitoring of 27 locations of San Benito evening-primrose listed in the Recovery Plan have shown that numbers of individuals at historically occupied habitat have remained relatively stable. Active and passive restoration efforts undertaken by the BLM, in conjunction with the closure of the Serpentine ACEC to OHV use, have improved degraded areas into suitable habitat for San Benito evening-primrose. The reduction in OHV use described in the 2014 Resource Management Plan provided protection of occupied habitat within the CCMA, and continued prohibition on OHV use will ensure that future degradation of occupied habitat will not occur within the CCMA. The Recovery Plan suggested target numbers of individuals that could be used as a point of reference to assess the stability of San Benito evening-primrose. Those goals have been met for four (five if only normal precipitation years are considered) of the 27 locations that are listed in the Recovery Plan. Those values were considered an approximation, and it appears that the 27 locations listed in the Recovery Plan have remained relatively stable around a 5-year moving average when the abnormally high-count year (1988) is considered (figure 2). Furthermore, the 27 locations are no longer representative of the entire range of San Benito evening-primrose due to the discovery of the geologic transition zone as suitable habitat and the associated increase in the known total number of individuals and occupied acreage.

Therefore, we conclude that based on the best available information, the recovery criteria in the Recovery Plan have been achieved and the recovery goal identified in the Recovery Plan has been met for San Benito evening-primrose. Recovery criterion 1 has been met with research to increase the understanding of the extent of existing occurrences, the range of suitable habitat, the persistence of the seed bank, and analysis of the genetic variability across watersheds and habitat types. Recovery criterion 2 has been met with protection of known occurrences and sufficient additional suitable habitat within each watershed unit throughout its range. Recovery criteria three and four have been met through the closure of the Serpentine ACEC, restoration of degraded areas, and observed stability of 27 of the 79 occurrences over a period that included 18 years of normal rainfall over a 27-year period. Recovery criterion 5 has been met through the development of a draft post-delisting monitoring plan for the species, which will be finalized in collaboration with the BLM.

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

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

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

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

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

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

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

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

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

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

The 5-year review documents the results of our comprehensive biological status review for the species, including an assessment of the potential threats to the species. The review provides the scientific basis that informs our regulatory decisions, which involve the further application of standards within the Act and its implementing regulations and policies. The 5-year review can be found at http://www.regulations.gov under Docket FWS-R8-ES-2019-0065. Where information in the 5-year review is out of date, we have provided updated information in this proposed rule.

Historical analyses and discussion of the threats to San Benito evening-primrose are detailed in the Recovery Plan (USFWS 2006, pp. 26-36) and 5-Year Review (USFWS 2009, pp. 10-18). An updated analysis and discussion follows here. Primary threats to San Benito evening-primrose identified in the listing rule included OHV use of occupied and potential habitat and gravel mining. Uncertainty about the reproductive capacity of the species and vandalism were also considered additional threats at listing. Vandalism was considered a threat due to the small population size and public resistance to listing the species under the Act. The resistance came from the OHV community perception that listing the species would inhibit their ability to continue recreating. However, vandalism was not believed to be significant with subsequent reviews of the species in the Recovery Plan and 5-Year Review and is not considered further in this proposed rule. Since listing, the Recovery Plan and 5-Year Review identified as additional threats: Soil loss and elevated erosion rates from OHV trails and staging areas, camping, facilities construction and maintenance, habitat alteration due to invasive species and/or natural vegetation community succession, climate change and the local effect on precipitation patterns and temperature, and stochastic events. The following sections provide a summary of the past, current, and potential future threats relating to San Benito evening-primrose.

Off-highway vehicle use of open serpentine barrens and alluvial terraces was considered the primary threat to San Benito evening-primrose when it was listed in 1985. Soil disturbance from OHVs use increased soil loss, soil compaction, and could result in the physical removal of plants. Staging areas and camping associated with OHV use had similar negative impacts to the species and its habitat. Between 1985 and 2010, the BLM implemented a series of measures to reduce effects to known habitat and occurrences of San Benito evening-primrose through fencing of sensitive areas, signage, designation of specific open riding areas, and enforcement and management of designated OHV trails. In 2005, the BLM estimated 50,000 visitor-use days per year occurred within the CCMA (USFWS 2006, p. 27). OHV use decreased in 2008 following the release of an EPA report that found high levels of naturally occurring asbestos that posed a significant health risk to visitors within the Serpentine ACEC.

To address the EPA findings, the BLM issued new Management Plans and associated Records of Decision in 2014, which restricted OHV access to areas of suitable habitat and known sub-occurrences of San Benito evening-primrose by reducing the amount of open trails and restricting access to the Serpentine ACEC to 5 days per year per recreationalist through a permit system and a series of locked gates (BLM 2014, pp. 1-18). Currently, only highway-licensed vehicles are allowed within the Serpentine ACEC on designated roads and by permit, which is limited to five use-days per year per person. These restrictions on OHV use have effectively removed OHV impacts to San Benito evening-primrose. OHV non-compliance with fencing and trail restrictions has been monitored within lands managed by the BLM. Findings of non-compliance remain low compared to levels of use prior to closure (table 2). Occurrences located on private property are not protected from OHV use, and occurrences on BLM land near private land are at greater risk of disturbance from OHV trespass. Under the current Resource Management Plan (BLM 2014, entire), because of its implementation of closures and restrictions, we do not consider OHV use will become a threat to occurrences on BLM land in the foreseeable future. While BLM restrictions do not provide protection to occurrences on private land, the best available data on historical and current recreation levels do not indicate that the level of OHV use on private land will increase from current levels to levels that would threaten the persistence of the species in the foreseeable future.

The last commercial mining in the CCMA ceased extraction activities in 2002 (BLM 2018, p. 66). The BLM has acquired surface rights to 208 ha (520 ac) along the lower reaches of Clear Creek up to and including the confluence with the San Benito River. This acquisition protects habitat and occurrences of San Benito evening-primrose, but without having the mineral rights to the land, it cannot be considered fully under the control of the BLM (USFWS 2009, p. 13). The BLM decided in the 2014 Resource Management Plan that no mineral leasing or sales on public lands will occur within the Serpentine ACEC and that mineral leasing and sales on public lands outside of the Serpentine ACEC will have “no surface occupancy” stipulations where occupied special status species habitat occurs (BLM 2018, pp. 1-36 through 1-37). With these requirements, and no active mining leases within suitable habitat and known occurrences, we conclude that mining is no longer a significant threat to San Benito evening-primrose and is not likely to become a threat in the foreseeable future

Rock hounding (hobby of collecting rock and mineral specimens from the natural environment) within the CCMA persists as a recreation activity, although quantifying the amount and effect of rock hounding on San Benito evening-primrose is lacking. However, given the restricted vehicle access and relatively low impact of an individual user versus a commercial mining operation, we consider that effects to San Benito evening-primrose from rock hounding are negligible and are not likely to become a threat in the foreseeable future.

Soil loss and erosion may occur naturally due to seasonal disturbances as would be expected by frost heaving, overland sheet flow from precipitation, unconsolidated soil, sparse vegetation, and flood events. These natural disturbances promote areas relatively free of dense vegetation, increase water infiltration, and may aid in dispersal of the San Benito evening-primrose downstream or downslope from existing occurrences. Many of the threats presented under Factor A may be considered a “disturbance” to the habitat of the species, but this does not mean that they are beneficial. For example, the effects to soil from frost heaving and overland sheet flow are very different from those resulting from repeated use of OHVs. The BLM attempted to quantify the differences between the natural, or background, rates of soil loss and erosion, and those that result from OHV and highway vehicle use. The mean background soil loss in the Clear Creek Watershed was 8 yards 3 (yd 3 )/ac-year (11 tons/ac-year) and that soil loss resulting from OHV open riding resulted in soil loss of 12 yd 3 /ac-year (16 tons/ac-year) (PTI Environmental 1993, pp. 36-39). The erosion rate from roads was estimated at 59 yd 3 /ac-year (80 tons/ac-year).

Increased erosion and elevated soil loss are indicative of loss of suitable habitat. The seed bank may be lost as soil erodes and the remaining soil may become compacted, decreasing germination potential as well as water retention. Trails that form from repeated use on open slopes or terraces may collect and funnel water, creating runnels, which in turn increase erosion while drawing water away from adjacent areas (Brooks and Lair 2005, p. 7; Ouren et al. 2007, pp. 5-16). The BLM has recognized this issue and has attempted to enact minimization measures for soil loss and erosion. In the most recent Resource Management Plan, the BLM includes guidelines that call for road closures during extreme wet weather, prioritizing closed roads for restoration and reclamation, and establishing automated weather stations to monitor precipitation and soil moisture and requires approved erosion control strategies to be evaluated for any soil-disturbing activities on slopes of 20-40 percent (BLM 2014, p. 1-30). Presently, the threat of soil loss and erosion is limited to natural cycles, remnant effects of past land use, and roads (for which the above minimization measures apply). Considering that additional sub-occurrences of San Benito evening-primrose continue to be identified and persist within habitat that is more prone to erosion (upland slopes of the geologic transition zone habitat type), it is unlikely that natural rates of soil loss and erosion present a threat to the continued existence of the species and is not likely to do so in the foreseeable future.

The construction of the BLM Section 8 Administrative Site in 1988 and associated structures resulted in direct loss of San Benito evening-primrose and its habitat, although the species still occurs in the vicinity of the disturbance (USFWS 2009, pp. 12-13, BLM 2018, p. 34). The Section 8 Administrative Site was decommissioned in 2010 and replaced by the Clear Creek Administrative Site. The new administrative site was not constructed on occupied or potential habitat for San Benito evening-primrose, although the impacts resulting from the original disturbance remain (BLM 2018, p. 66). The old Section 8 Administrative Site is infrequently used and, at current levels of use, does not present a threat to the persistence of San Benito evening-primrose due to the discovery of new sub-occurrences and potential habitat throughout the CCMA (BLM 2018 p. 66). No new facilities and construction projects are planned, and it is not likely that new projects in occupied or potential habitat will be proposed in the foreseeable future.

The serpentine-derived soils inhibit invasion from nonnative plant species where San Benito evening-primrose occurs. However, the habitat may still be degraded if invasion by nonnative species is allowed to occur on adjacent land. High densities of nonnative species may negatively influence existing or potential habitat for San Benito evening-primrose by providing a persistent threat of colonization. Yellow star thistle ( Centaurea solstitialis ) and tocalote ( C. melitensis ) have been actively controlled near occurrences of San Benito evening-primrose within the CCMA since 2005 (BLM 2018, p. 62). The BLM has identified prescribed fire followed by broadcast application of clopyralid, a broadleaf specific herbicide, as the most effective means of reducing the cover of invasive species threatening San Benito evening-primrose. The cover of yellow star thistle has been reduced by 95 percent in the Clear Creek drainage, and San Benito evening-primrose has expanded into the improved habitat (BLM 2018, p. 62). The natural buffer that the serpentine-derived soils provide, coupled with BLM's management of invasive species and the expansion of known sub-occurrences and potential habitat, make it unlikely that invasive species present a significant threat either now or into the future to the persistence of San Benito evening-primrose. The abundance of invasive species will be monitored as part of the Post-delisting Monitoring Plan. The Post-delisting Monitoring Plan will suggest thresholds that will determine the necessary control efforts on federally managed land.

San Benito evening-primrose habitat is typically open and relatively free of high amounts of woody vegetation and canopy cover. Succession to a woody shrub community in habitat that presently or historically supported San Benito evening-primrose could result in increased canopy cover (potentially shading out San Benito evening-primrose) and increased competition for resources (lessening the success of establishment and survival) (Taylor 1990, p. 66). Photopoints initiated by the BLM in 1980 suggest that open serpentine barrens are less susceptible to encroachment by woody shrubs (typically chaparral species such as manzanita ( Arctostaphylos spp.)) than alluvial terrace habitat. This is presumably due to the greater concentration of serpentine soils on the open barrens compared to the more organic rich soils of the alluvial terraces. Continued evidence of encroachment into areas occupied by San Benito evening-primrose has been observed at established photomonitoring points (BLM 2018, pp. 56-57).

The immediate effect of encroachment by woody vegetation would be to reduce, or possibly eliminate, known occurrences and potential habitat of San Benito evening-primrose through competition and alteration of habitat structure. It is possible that the seed bank, once established, is long lived enough that it may persist through cycles of vegetation community shifts due to natural events such as fires. However, the species has not been studied for sufficient time to observe the effects of vegetation succession. The BLM has estimated that seed may remain viable for 107 years in the presence of common co-occurring shrubs (BLM 2015, pp. 16-28).

San Benito evening-primrose has not been observed in the geologic transition zone habitat for as long a period of time as either alluvial terrace habitat or the open serpentine barrens. As a result, the rate of succession to woody vegetation is not as well understood. It is likely that the rate of succession to woody habitat is less within geologic transition zone habitat than alluvial terrace, but greater than the rate of succession compared to open serpentine barrens. Succession of plant communities is a natural process and may result in loss of current or potential habitat. However, the amount of new sub-occurrences that have been identified lessen the immediate risk to the existence of the species; therefore, succession to woody shrub community is not currently a species-level threat. No occurrences of San Benito evening-primrose have been extirpated due to succession of woody vegetation since monitoring began in 1980, and, because San Benito evening-primrose grows on serpentine soils, threats to the species from succession to woody vegetation is also unlikely to be a threat in the foreseeable future.

At the time of listing, only nine occurrences of San Benito evening-primrose were known within a relatively restricted range. The small number of occurrences increased the susceptibility of the species to extinction from a stochastic event, such as a fire, flood, drought, or other unpredictable event, because a single event had the capability to negatively impact all known occurrences at the same time. The threat from stochastic events due to a small number of occurrences has decreased as the number of known occurrences has increased to 79 occurrences (519 sub-occurrences or 658 point locations) occurring across multiple watersheds, and into a new habitat type (the geologic transition zone). The species' current known range is bordered on the north by New Idria Road near the confluence of Larious Creek and San Carlos Creek, to the south at the Monterey County line near Lewis Creek, to the west near the Hernandez Reservoir, and to the east by the eastern boundary of the Serpentine ACEC, an area of approximately 307 square miles.

Within this broad range, approximately 260 ac (105 ha) is considered potential habitat (BLM 2018, p. 31) and 63.2 ac (25.6 ha) are known to be occupied. Despite the occupied area being relatively small, it is spread over a large geographic area across multiple habitat types and many occurrences, suggesting a low possibility of extinction from a single stochastic event. The presence of a long-lived and well-established seed bank further insulates San Benito evening-primrose from the possibility of extinction due to a single stochastic event. The land management practices of the BLM within the CCMA have promoted preserving and restoring San Benito evening-primrose habitat and the natural soil processes and hydrology of the watersheds it occurs within as well. Stochastic events are unlikely to threaten the species in the foreseeable future due to the current range of San Benito evening-primrose and number of known occurrences.

The terms “climate” and “climate change” are defined by the Intergovernmental Panel on Climate Change. The term “climate change” thus refers to a change in the mean or variability of one or more measures of climate (for example, temperature or precipitation) that persists for an extended period, whether the change is due to natural variability or human activity (IPCC 2014a, pp. 119-120). The effects of climate change are wide ranging but include alteration of historical climate patterns including storm frequency and severity, seasonal shifts in temperatures, and changing precipitation patterns. Globally, these effects may be positive, neutral, or negative for any given species, ecosystem, land use, or resource, and they may change over time (IPCC 2014b, pp. 49-54; IPCC 2018, pp. 9-12). Potential effects derived from climate change have consequences for the biological environment and may result in changes to the suitability of currently occupied habitat through increased drought stress, shortened growing seasons, and alteration of the historical soil and hydrologic cycles. The synthesis report that was issued by IPCC is conclusive that future climate conditions will be dissimilar from current climate conditions. The effects of these changes to San Benito evening-primrose and its habitat are not known, but we may reasonably infer potential effects from the globally anticipated changes. The State of California assessment on climate change provides a better estimate for the effects of climate change to areas occupied by San Benito evening-primrose.

California released its fourth climate change assessment in 2018 (Langridge 2018, entire). The California assessment differs from the IPCC assessments in that it is localized to the State and has specific analyses for nine regions within the State. California's Fourth Climate Change Assessment uses downscaled versions of the global climate models used by IPCC to create localized predictions based on future emissions scenarios in order to provide relevant predictions for management and planning. The range of San Benito evening-primrose falls within the Central Coast region of California's fourth climate change assessment. In general, the region is expected to experience increasing minimum and maximum temperatures and slight increases in precipitation with significant increases in variability (Langridge 2018, p. 6). These expected trends are slightly variable across the three watersheds within which San Benito evening-primrose occurs (hydrologic unit code (HUC) 10): Upper San Benito River, Los Gatos Creek, and Larious Creek-Silver Creek. The predicted increases in minimum temperature, maximum temperature, and precipitation are similar for both high (representative concentration pathway (RCP) 8.5) and low (RCP 4.5) emissions scenarios and across model variations (Cal-adapt 2018, p. NA; table 5).

Based on the state of California assessment of climate change, the IPCC data, taking into account known uncertainties with climate change projection, the effects of the predicted changes due to climate change to occurrences of San Benito evening-primrose are varied. A slight increase in precipitation may provide additional water during the growing season, but the variability between seasons may result in long periods of drought followed by high-volume precipitation that may cause erosion. Increasing minimum temperatures may reduce the amount of days with frost, thereby altering the physical cues for germination, and increasing maximum temperatures could result in increased stress for flowering individuals. Conversely, increased amounts of rain may promote increased germination and seedling success. In order to precisely understand the effects of climate change, location-specific data on temperature, precipitation, San Benito evening-primrose germination, seedling success, and seed bank cycling over multiple years would be needed.

Shifts in community composition are likely to occur as a result of changes in California's climate and may impact the long-term suitability of currently occupied and potential habitat for San Benito evening-primrose. All California macrogroups of vegetation are expected to have moderate to high risk of vulnerability to climate change (Thorne et al. 2016, p. 1). This means that all vegetation communities are susceptible to portions of their current range becoming unsuitable. It is also possible that previously unsuitable areas for a given macrogroup will become suitable as physical parameters that were previously unfavorable become favorable. Vegetation communities migrating higher in elevation along temperature gradients or moving upland as sea levels rise along hydrological gradients are typical examples of this scenario. However, the ability of a vegetation macrogroup to migrate assumes that natural seed dispersal pathways are available and that undeveloped land exists along dispersal pathways.

San Benito evening-primrose occurs within three macrogroups within San Benito and Fresno Counties: California foothill and valley forests and woodlands, chaparral, and California annual and perennial grassland. California foothill and valley forests and woodlands and chaparral are both ranked at moderate risk of vulnerability, and California annual and perennial grassland is ranked as moderate to high risk of vulnerability (Thorne et al. 2016, p. 3; table 6). Estimates of the percent of existing habitat that will become unsuitable, have no change, or become newly suitable based on low and high emissions scenarios are shown in table 6 based on data within Thorne et al. (2016, pp. 33-41; 114-122; 132-140).

Under both high and low emissions scenarios, currently suitable habitat for San Benito evening-primrose is lost due to changes in climate. Conversely, the species that compose the vegetation communities that are associated with San Benito evening-primrose are expected to have the capability to migrate into newly suitable habitat. The primary concern, in regard to San Benito evening-primrose habitat, is the threat of an increase in woody vegetation as a response to climate change. However, San Benito evening-primrose is found in serpentine and serpentine-derived soils that are not likely to be affected by climate change in the foreseeable future. The edaphic (soil) conditions may restrain woody vegetation migration into areas currently occupied. While the soil type may mitigate habitat loss due to habitat conversion, it may also restrain the species from dispersing to areas where climatic conditions are more favorable for survival. The currently predicted changes in precipitation and climate do not suggest that the species may become endangered due to those changes in the foreseeable future.

San Benito evening-primrose is not a State-listed taxon under the California Endangered Species Act. The species is listed by the California Native Plant Society (CNPS) as 1B.1, indicating that the taxon is rare throughout its range and is generally endemic to California as well as having been reduced throughout its historical range. Species listed by CNPS as 1B.1 meet the definition of threatened in the California Endangered Species Act as described in the California Fish and Game Code (CNPS 2018 Rare Plant Inventory website) and must therefore be considered during environmental analysis for California Environmental Quality Act (CEQA) documentation (CEQA 2018 Guidelines Section 15380).

In 2001, the BLM published the National Management Strategy for Motorized Off-Highway Vehicle Use on Public Lands. This guiding document ensures consistent and positive management of environmentally responsible motorized OHV use on public lands. Detailed regulations are established in BLM's 2014 Resource Management Plan for the CCMA that provides for protections of San Benito evening-primrose. BLM's 2014 Resource Management Plan for the CCMA is in place until superseded. The restriction of OHV use within the CCMA and the Serpentine ACEC is based on concerns of health risks and will be unaffected by the delisting of San Benito evening-primrose. Currently, only highway-licensed vehicles are allowed within the Serpentine ACEC on designated roads and by permit, which is limited to five use-days per year per person, and within the CCMA trail riding is restricted to designated areas near Condon Peak (BLM 2014, p. 1-18). The Post-delisting Monitoring Plan will provide for continued evaluation of the status of occurrences to prevent the species from again becoming warranted for listing under the Federal Endangered Species Act.

The BLM has regulations and policies that guide the management of natural resources on the public lands they manage. In particular, Congress passed the Federal Land Policy and Management Act of 1976 to provide policy for “the management, protection, development, and enhancement” of public lands managed by the BLM. This law directs the BLM to “take any action necessary to prevent unnecessary or undue degradation of the lands” during mining operations (43 U.S.C. 1732(b)). Mining operations that exceed 5 acres (2.02 ha), and certain other defined operations, require a plan of operations approved by the BLM (43 CFR 3809.1-4, 1-6).

BLM may enact special rules to protect soil, vegetation, wildlife, threatened or endangered species, wilderness suitability, and other resources by immediately closing affected areas to off-road vehicles that are causing resource damage until the adverse effects are eliminated and measures are implemented to prevent recurrence (43 FR 8340-8364).

Two Executive Orders (E.O.) apply specifically to off-road vehicles on public lands: E.O. 11644 directs agencies to designate zones of off-road use that are based on protecting natural resources, the safety of all users, and minimizing conflicts among various land uses. The BLM and other agencies are to locate such areas and trails to minimize damage to soil, watershed, vegetation, or other resources, and to minimize disruption to wildlife and their habitats. Areas may be located in designated park and refuge areas or natural areas only if the head of the agency determines that off-road use will not adversely affect the natural, aesthetic, or scenic values of the locations. The respective agencies are to ensure adequate opportunity for public participation in the designation of areas and trails.

E.O. 11989 amends the previous order by adding the following stipulations: (a) Whenever the agency determines that the use of off-road vehicles will cause or is causing considerable adverse effects on the soil, vegetation, wildlife, wildlife habitat, or cultural or historic resources of particular areas or trails on public lands, it is to immediately close the areas or trails to the type of off-road vehicle causing the effects until it determines that the adverse effects have ceased and that measures are in place to prevent future recurrence; and (b) each agency is to close portions of public lands within its jurisdiction to off-road vehicles except areas or trails designated as suitable and open to off-road vehicle use.

As San Benito evening-primrose is a listed species under the Act, the BLM is required to consult with the Service on any activities it funds, authorizes, or carries out that may affect San Benito evening-primrose. There are no Federal prohibitions under the Act for negatively impacting listed plants on non-Federal lands, unless a person damages or destroys federally listed plants while in violation of a State law or a criminal trespass law. Where the species occurs on private lands, protections afforded by section 7(a)(2) of the Act are triggered only if there is a Federal nexus ( i.e., an action funded, permitted, or carried out by a Federal agency). If the species is delisted, the protections afforded by the Act would no longer apply. Even in the absence of the protections of the Act, adequate regulatory mechanisms are in place, such as the Federal Land Policy and Management Act of 1976, E.O. 11644 and E.O. 11989, to ensure the continued persistence of San Benito evening-primrose s occurrences and suitable potential habitat.

A very limited range, small number of occurrences, and direct and indirect threats from OHV use and mining and associated facilities and road maintenance were the primary threats to San Benito evening-primrose at the time of listing in 1985 (50 FR 5755-5759, February 12, 1985). OHV use continued to be a significant threat to San Benito evening-primrose until the temporary closure of the Serpentine ACEC in 2008. The 2014 Resource Management Plan permanently reduced the amount of exposure San Benito evening-primrose has to OHV recreation and has resulted in indirectly removing the most significant threat to the species, which was direct loss of individuals by OHV recreation and indirect loss of habitat and seed bank through erosion on slopes and soil compaction on alluvial terraces. The threat from mining was reduced by 2002 with the closure of the last commercial mine, and future threats from mining are unlikely based on BLM management actions listed in the 2014 Resource Management Plan for the CCMA. Habitat alteration from invasive species and succession to woody vegetation communities are not likely to threaten San Benito evening-primrose because invasive species and woody vegetation communities are intolerant to serpentine soils. The significant increase in the number of known occurrences and the associated increase in range and the new habitat association greatly reduce the threat of stochastic events resulting in significant loss to the species. The effects of climate change on the species are predicted changes in temperature and rainfall by 2050, and do not suggest species-level threats to survival.

When individual threats that influence reproductive output, germination, and survival occur together, one threat may add to, or exacerbate, the effects of another, resulting in a disproportionate increase in threat to the species. When this occurs, we call the interactive effects synergistic or cumulative. The lack of current threats to San Benito evening-primrose reduce the possibility of synergistic or cumulative effects occurring, and, given the current range of the species, number of known occurrences, and likelihood of new occurrences to become known, synergistic and cumulative effects do not pose a significant population-level impact to San Benito evening-primrose at this time nor do we anticipate that they will in the future.

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.” For a more detailed discussion on the factors considered when determining whether a species meets the definition of “endangered species” or “threatened species” and our analysis on how we determine the foreseeable future in making these decisions, see Regulatory Framework, above.

After evaluating threats to the species and assessing the cumulative effect of the threats under the section 4(a)(1) factors, we have assessed the best scientific and commercial information available regarding the past, present, and future threats faced by San Benito evening-primrose in this proposed rule. At the time of listing in 1985 (50 FR 5755-5759, February 12, 1985), San Benito evening-primrose was known from only nine occurrences within a very narrow range that were all subject to potential loss from the threats listed in Factors A through E.

Off-highway vehicle recreation (Factor A), the greatest persistent threat to the species, has been reduced to levels that no longer pose a significant threat of extinction to San Benito evening-primrose or loss of its habitat, due to the closure of the Serpentine ACEC and the restriction of OHV use within the CCMA but outside of the Serpentine ACEC. Most significantly, surveys by the BLM have shown that the species is much more wide-ranging and common than originally known and occurs across a broader range of habitat types. The number of known occurrences has increased from 9 to 79 and includes 658 mapped point locations. The range of the species is now known from three watersheds, and occupied habitat covers 63.2 acres (25.6 ha). Our understanding of the ecology of the species has demonstrated that the species may persist through periods of disturbance due to the persistence of a robust and long-lived seedbank that facilitates reestablishment, dispersal, and buffers against stochastic events. Annual surveys of San Benito evening-primrose have demonstrated that there is a large amount of interannual variation in numbers of individuals observed. We believe that the 27 occurrences that have been monitored since 1983 have remained relatively stable around a 5-year moving average when the abnormally high count year (1988) is considered. Furthermore, the significant increase in the number of occurrences is not represented in the analysis of the 27 occurrences that were known at the time the Recovery Plan was written. The best available information indicates that Factors B, C, and E are not affecting the species and are unlikely to do so in the foreseeable future. The existing regulatory mechanisms in place are adequate to ensure the continued persistence of San Benito evening-primrose occurrences and suitable potential habitat because a majority of occurrences are managed on Federal land and are protected by a 2014 BLM Resources Management Plan and a BLM Area of Critical Environmental Concern (ACEC) designation. Based on the information presented in this status review, the recovery criteria in the Recovery Plan have been achieved and the recovery goal identified in the Recovery Plan has been met for San Benito evening-primrose. Thus, after assessing the best available information, we conclude that San Benito evening-primrose is not in danger of extinction throughout all of its range either now or within the foreseeable future.

Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so within the foreseeable future throughout all or a significant portion of its range.

Having determined that San Benito evening-primrose is not in danger of extinction or likely to become so within the foreseeable future throughout all of its range, we now consider whether it may be in danger of extinction or likely to become so within the foreseeable future in a significant portion of its range. 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. Conversely, 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 “significant portion of the range prongs”: (1) The portion is significant and (2) the species is, in that portion, either in danger of extinction or likely to become so within 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 significant portion of the range prongs would the species warrant listing because of its status in a significant portion of its range.

We evaluated the range of San Benito evening-primrose to determine if any area may be a significant portion of the range. San Benito evening-primrose is a narrow endemic that occurs over 300 square miles, but occupies a relatively small amount of acreage (63.2 ac (25.6 ha) of occupied habitat). Genetic analysis indicated no differentiation in occurrences based on watershed or habitat and that there was no hybridization with a close relative. Every threat to the species in any portion of its range is a threat to the species throughout all of its range, and so the species has the same status under the Act throughout its narrow range. Therefore, we conclude, based on this screening analysis, that 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 conclusion—that we do not undertake additional analysis if we determine that the species has the same status under the Act throughout its narrow range—is consistent with the courts' holdings in Desert Survivors v. Department of the Interior, No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018); Center for Biological Diversity v. Jewell, 248 F. Supp. 3d, 946, 959 (D. Ariz. 2017); and Center for Biological Diversity v. Everson, 2020 WL 437289 (D.D.C. Jan. 28, 2020).

Our review of the best scientific and commercial data available indicates that the San Benito evening-primrose does not meet the definition of an endangered species or a threatened species in accordance with sections 3(6) and 3(20) of the Act. Therefore, we propose to delist the San Benito evening-primrose from the List of Endangered and Threatened Plants.

If this proposed rule is made final, it would revise 50 CFR 17.12(h) to remove San Benito evening-primrose 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 San Benito evening-primrose. 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 San Benito evening-primrose.

Section 4(g)(1) of the Act requires us to implement a system to monitor effectively, for not less than 5 years, all species that have been recovered and delisted (50 CFR 17.11, 17.12). The purpose of this post-delisting monitoring is to verify that a species remains secure from the risk of extinction after it has been removed from the protections of the Act. The monitoring is designed to detect the failure of any delisted species to sustain itself without the protective measures provided by the Act. 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 under section 4(b)(7) of the Act. Section 4(g) of the Act explicitly requires us to cooperate with the States in development and implementation of post-delisting monitoring programs, but we remain responsible for compliance with section 4(g) and, therefore, must remain actively engaged in all phases of post-delisting monitoring. We also seek active participation of other entities that are expected to assume responsibilities for the species' conservation post-delisting.

If we make this proposed rule final, the post-delisting monitoring is designed to verify that San Benito evening-primrose remains secure from the risk of extinction after its removal from the Federal List of Endangered and Threatened Plants by detecting changes in trend and habitat suitability. A draft post-delisting monitoring plan for the species can be found at http://www.regulations.gov under Docket No. FWS-R8-ES-2019-0065. If this proposed rule is finalized, the final post-delisting monitoring plan will be agreed upon by the Service and the BLM prior to publication of a final 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 names of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare an environmental analyses pursuant to the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq. ) in connection with regulations adopted pursuant to section 4(a) of the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This position was upheld by the U.S. Court of Appeals for the Ninth Circuit ( Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

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

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-R8-ES-2019-0065, or upon request from the Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT ).

The primary authors of this proposed rule are the staff members of the Ventura Fish and Wildlife Office in Ventura, California, in coordination with the Pacific Southwest Regional Office in Sacramento, California.

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