Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this proposed rule via the one of the methods and by the deadline stated above. All comments must be submitted in English, or accompanied by an English translation. The Department also invites comments that relate to the economic, environmental, or federalism effects that might result from this proposed rule. Comments that will provide the most assistance to the Department in developing these procedures will reference a specific portion of the rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change.

Please note that all comments received are considered part of the public record and made available for public inspection at www.regulations.gov. Such information includes personally identifying information (such as your name, address, etc.) voluntarily submitted by the commenter.

If you want to submit personally identifying information (such as your name address, etc.) as part of your comment, but do not want it to be posted online, you must include the phrase “PERSONALLY IDENTIFYING INFORMATION” in the first paragraph of your comment and identify what information you want redacted.

If you want to submit confidential business information as part of your comment, but do not want it to be posted online, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You also must prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted on http://www.regulations.gov.

Personally identifying information located as set forth above will be placed in the agency's public docket file, but not posted online. Confidential business information identified and located as set forth above will not be placed in the public docket file. The Departments may withhold from public viewing information provided in comments that they determine may impact the privacy of an individual or is offensive. For additional information, please read the Privacy Act notice that is available via the link in the footer of http://www.regulations.gov. To inspect the agency's public docket file in person, you must make an appointment with the agency. Please see the For Further Information Contact paragraph above for agency contact information.

The Department may withhold from public viewing information provided in comments that they determine may impact the privacy of an individual or is offensive. For additional information, please read the Privacy Act notice that is available via the link in the footer of http://www.regulations.gov.

The Immigration and Nationality Act (“INA”) provides that aliens appearing before an immigration judge “shall have the privilege of being represented, at no expense to the Government, by counsel of the alien's choosing who is authorized to practice in such proceedings.” INA 240(b)(4)(A), 8 U.S.C. 1229a(b)(4)(A); see also INA 292, 8 U.S.C. 1362 (“In any removal proceedings before an immigration judge and in any appeal proceedings before the Attorney General from any such removal proceedings . . . the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel . . . as [the person concerned] shall choose.”); 8 CFR 1003.16(b) (“The alien may be represented in proceedings before an Immigration Judge by an attorney or other representative of his or her choice in accordance with 8 CFR part 1292, at no expense to the government.”).

DOJ has promulgated regulations establishing rules of procedure and standards of professional conduct governing “practitioners”— i.e., attorneys, law students, law graduates, reputable individuals, and accredited representatives permitted to practice before EOIR. 8 CFR 1003.101(b) (defining practitioner); id. 1003.1-8 (Board of Immigration Appeals); id. 1003.12-47 (immigration court rules of procedure); id. 1003.101-11 (professional conduct for practitioners). Under those regulations, practitioners who represent an individual in proceedings before EOIR must file a Notice of Entry of Appearance as Attorney or Representative Before the Board of Immigration Appeals (“Form EOIR-27”) or a Notice of Entry of Appearance as Attorney or Representative Before the Immigration Court (“Form EOIR-28”). 8 CFR 1003.3(a)(3), 1003.17, 1292.4. Practitioners are subject to disciplinary sanctions if they provide representation before the BIA or the immigration courts and fail to submit a signed and completed Form EOIR-27 or Form EOIR-28 or fail to sign every pleading, application, motion, or other filing in their individual names. 8 CFR 1003.102(t).

Generally, when a practitioner enters a notice of appearance, the practitioner is obligated to represent the individual for the remainder of the proceeding unless the immigration judge or the Board of Immigration Appeals (“Board” or “BIA”) grants that practitioner's motion to withdraw or substitute counsel. 8 CFR 1003.17, 1003.38, 1292.4. In 2015, however, the Department published a final rule allowing practitioners to enter an appearance for the limited purpose of representing an alien in custody and bond proceedings. Separate Representation for Custody and Bond Proceedings, 80 FR 59500 (Oct. 1, 2015). Practitioners appearing before an immigration judge may indicate on Form EOIR-28 that their appearance is for “All proceedings,” for “Custody and bond proceedings only,” or “All proceedings other than custody and bond proceedings.” 8 CFR 1003.17(a); Form EOIR-28.

On March 27, 2019, the Department published an Advanced Notice of Proposed Rulemaking (“ANPRM”) with 11 questions to solicit public comments regarding whether the Department should allow practitioners who appear before EOIR to engage in limited representation, or representation of a client during only a portion of the case beyond what the regulations currently permit. Professional Conduct for Practitioners, Scope of Representation and Appearances, 84 FR 11446 (Mar. 27, 2019).

The Department received 30 comments  1 in response to the ANPRM. The vast majority of comments were submitted by organizations (16 comments) and individuals (9 comments) who provide legal services to aliens appearing before EOIR, including the American Immigration Lawyers Association (“AILA”), the American Civil Liberties Union (“ACLU”), non-profit legal service providers, immigration law clinics, private immigration attorneys, and law students. Three comments were submitted anonymously, including one by a law student intending to become an immigration attorney. Comments were also submitted by the National Association of Immigration Judges (“NAIJ”) and the Administrative Conference of the United States (“ACUS”).

The comments are summarized below in relation to the specific questions raised in the ANPRM.

Question 1: Should the Department permit certain types of limited representation currently impermissible under regulations? If so, to what extent? If not, why not?

The vast majority of the comments—26 of 30—supported allowing practitioners to assist clients in only part of a case. Two of the comments—one by NAIJ and one submitted by a commenter identifying only as a law student—opposed such limited representation. Two comments did not take a clear position. 2

Several comments supporting limited representation noted that the American Bar Association (“ABA”) and a majority of state bar associations allow the practice. See Model Code of Prof'l Conduct R. 1.2(c) (“A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.”); ABA Comm. on Ethics & Prof'l Responsibility, Formal Op. 472 (2015) (discussing proper attorney communication with a person receiving limited-scope legal services); but see “Ghostwriting Controversy: Is there an ethical problem with attorneys drafting for pro se clients?” ABA Journal (June 2018) (quoting an attorney regarding the provision of limited representation services without disclosure of such assistance to the court: “The lack of a clear and consistent position by courts and bar associations is one of the substantial challenges facing the profession on this issue. For example, bar associations have typically taken a more favorable view of ghostwriting than have the courts themselves. Even among courts there are differing viewpoints, with federal courts generally viewing ghostwriting less favorably than state courts. Likewise, different states have adopted different views on this issue.”). However, NAIJ, writing in strong opposition to limited representation, stated that while bar associations may theoretically allow limited representation, “NAIJ is not aware of any other state or federal courts allowing for such limited representation,” indicating that it is not workable in practice.

Most of the comments supported limited representation as a means to increase access to counsel. 3 Several commenters pointed to limited representation in the bond and custody context as an illustration of how limited representation can lead to better outcomes for respondents and greater immigration court efficiency. Some commenters pointed to the Department's past statements when allowing limited representation in custody and bond proceedings. See Separate Representation for Custody and Bond Proceedings, 80 FR 59500 (Oct. 1, 2015) (final rule); 79 FR 55660 (Sept. 17, 2014) (proposed rule) (noting that regulations that are expected to encourage more practitioners to agree to represent individuals who would otherwise navigate EOIR's proceedings on their own would, in turn, benefit the public by increasing the efficiency of the immigration courts). NAIJ cautioned, however, that although limited representation in bond proceedings is appropriate, “respondents are often unaware that they are only hiring attorneys for a limited portion of their case,” and predicted that “[a]llowing attorneys to further limit their representation of respondents in removal proceedings will only lead to additional confusion on the part of the respondents.”

Many commenters asserted that many practitioners are forced to decline to assist respondents because they are unable to commit to full representation for the entirety of the case as required under the current regulations. They noted that some cases involve multiple hearings over a number of years while others might be scheduled too quickly for practitioners to sufficiently prepare. These commenters suggested that practitioners would be more likely to assist individuals if they were not automatically committed to representation for the entirety of the proceedings.

Many of the commenters argued that individuals who are represented in proceedings before EOIR achieve better outcomes, with several providing statistics to support their claims. The comments supporting some form of limited representation either stated or implied that individuals who receive assistance in only a portion of their cases will fare better than those who receive no representation. Several comments stated that limited representation may improve the quality of representation and reduce the likelihood that respondents turn to notarios   4 or other bad actors. One commenter stated that limited representation would empower dissatisfied respondents to find new counsel and incentivize practitioners to provide quality representation if they wished to be retained for further work in a case. Additionally, commenters noted that practitioners could tailor their practice to matters in which they are the most qualified.

NAIJ disagreed that individuals would be better off with limited representation, arguing that it would result in “an undue and misplaced burden [being] placed on respondents who may not have representation at merit hearings, to account for lacking documentation and missed attorney deadlines set at the master hearings [where a limited representative was present].”

Several comments predicted that limited representation would increase immigration court efficiency because if more respondents are represented, even in a limited manner, immigration judges would not have to devote as much time, care, and attention during proceedings to make sure that respondents understand the proceedings. Some commenters also argued that with limited representation, relief applications may be presented more clearly and comprehensively, which would make it easier for immigration judges to decide the applications. One comment suggested that limited representation may improve appearance rates of non-detained respondents because respondents may feel more confident appearing if they have assistance of counsel.

NAIJ disagreed, predicting that immigration judges would have “to start hearings anew when a new attorney appears at the individual hearing contesting issues having been concluded at the master or previous hearing,” and judges would have to devote additional time to consider revised applications and motions for continuances.

Commenters in support of limited representation offered a variety of options for expanding limited representation. They suggested both limited representation without restrictions and limited representation restricted to certain respondents, practitioners, types of proceedings, or discrete parts of proceedings. One or more commenters recommended the following specific options for enacting limited representation:

• Limited representation, including appearances and filings, in all instances ( e.g., permitting limited appearances for each scheduled hearing in a given case);

• limited representation, including appearances and filings, except for particularly vulnerable clients ( e.g., juveniles and respondents with mental health issues would not be permitted to be represented in a limited capacity);

• limited appearances for vulnerable clients only in the scope of motions to change venue, motions to reopen, and motions to terminate;

• limited representation, including appearances and filings, for each form of relief ( e.g., allowing a practitioner to represent a client only for the client's application for cancellation of removal and another practitioner to represent the same client only for the client's application for asylum);

• limited appearances in the form of filing motions and applications for relief only; limited appearances for preparing and filing each “discrete” piece of a respondent's case ( e.g., dispositive motions or pleadings);

• limited representation for preparing and filing certain motions only (such as motions to change venue, motions to continue, motions to consolidate or sever, motions to re-calendar, and motions for stay);

• limited representation in-person for a master calendar hearing only, highlighting the possibility that unrepresented respondents might concede charges without understanding the implications of such concessions;

• limited representation in-person for credible and reasonable fear review hearings;

• limited representation permitted by pro bono practitioners, nonprofit practitioners, or EOIR-accredited representatives only;

• limited representation in-person as a pro bono representative for one day only; and

• limited representation in-person by all practitioners without distinction between profit and non-profit representation.

Question 2: Should limited representation be permitted to allow attorneys or representatives to appear at a single hearing in proceedings before EOIR, possibly leaving the respondent without representation for a subsequent hearing on the same filing? If so, to what extent? If not, why not?

Eighteen commenters expressed support for limited representation to permit a practitioner to appear at a single hearing or discrete segments of a case, such as pleadings, arguments on a motion drafted by the practitioner, or an individual hearing on the merits of an application for relief. These comments echoed the reasons given above in support of limited representation generally. They asserted that respondents and immigration courts would benefit from limited representation for a single hearing or segment of the case, even if a respondent had no representation at subsequent hearings. One supporter cautioned that appearances for a single hearing may not be appropriate in circumstances where an individual hearing is scheduled shortly after a master calendar hearing, leaving little time for a subsequent practitioner to prepare, or where a matter requires multiple hearings.

Three commenters opposed limited representation for a single hearing. These commenters expressed concern that immigration proceedings involve multiple hearings over a number of years, and respondents could compromise their case if they later had to proceed pro se and were unable to maintain representation throughout their proceedings. Commenters argued that pro se respondents, in the time between limited representation and an individual hearing, could become confused about their responsibilities regarding filing deadlines, be unable to sufficiently prepare their cases, or could be unaware of changes in the law or new forms of relief that become available.

Question 3: Should limited representation be permitted to allow attorneys or representatives to prepare or file a pleading, application, motion, brief, or other document without providing further representation in the case? If not, why not? If so, should attorneys or representatives be required to identify themselves as the author of the document or should anonymity ( i.e., ghostwriting) be permitted?

Nineteen comments advocated allowing practitioners to prepare or file a pleading, application, motion, brief, or other document without having to enter an appearance and without being obligated to assist the client in any other portion of the case. Only one comment advocated that EOIR allow uncredited “ghostwriting,” where “attorneys should indicate that an attorney provided assistance but should not be required to identify themselves.” The other commenters argued that the practitioner should provide identifying information. For example, AILA suggested, “[t]he lawyer should identify themselves by providing the same information on the document as if the lawyer were to enter an appearance, but there should be no formal requirement to enter an appearance that would create a future obligation to appear in court or perform other work.”

Commenters opposing anonymity argued that anonymity “would not allow for accountability if any individuals are committing any types of fraud or unethical techniques.” Other comments raised concerns that ghostwriting could preclude a respondent's ability to reopen proceedings based on ineffective assistance of counsel pursuant to Matter of Lozada, 19 I&N Dec. 637 (BIA 1988). See id. at 639 (stating that “[w]here essential information is lacking, it is impossible to evaluate the substance of” an ineffective assistance claim).

Three commenters opposed a broad rule allowing practitioners to assist on documents with no obligation to continue representing the individual. One commenter raised concerns that often, hearings are set “for years later” after all documents have been submitted, and during that time “the law could change or new relief could become available.” The commenter worried that the respondent could thus “be left unprotected and ignorant of the law.” The commenter acknowledged, however, that certain acts would not raise such concerns, such as assisting in motions to change venue, motions to continue, or motions for status docket.

Question 4: If limited representation is permitted in proceedings before EOIR, should an attorney or representative be required to file a Notice of Entry of Appearance regardless of the scope of the limited representation? If so, should a form separate from the EOIR-27 and EOIR-28 be created for such appearances?

Fourteen comments addressed this issue, with the majority supporting amendment of the current Form EOIR-27 and Form EOIR-28 to include an option for limited representation or the creation of a separate form. Some suggested that the form include the respondent's signature consenting to the limited representation or a space to define the scope of the limited representation. In the context of assistance in preparing documents, six commenters suggested the inclusion of identifying information about the practitioner with a filed document or completion of the preparer block on an application in order to preclude the submission of an appearance form. Only one of the commenters opposed filing a form, although the commenter suggested that the practitioner should make a statement on the record about the limited appearance and include a document in the record regarding the respondent's consent to limited representation.

Question 5: If limited representation is permitted, should attorneys or representatives certify to EOIR, either through a form or filings made, that the alien has been informed about the limited scope of the representation?

Of the 14 submissions that addressed the issue, the vast majority (11 submissions) opined that either practitioners should certify they have informed the individual about the limited scope of representation (9 submissions), or the judge should explain the limited scope of representation on the record (2 submissions). The commenters argued that this precaution was necessary to “create accountability for attorneys and representatives” and prevent clients from being “misled to think that the attorney or representative would be representing them from beginning to end.”

Commenters offered different suggestions as to the form of such certification. One commenter suggested a simple checkbox on EOIR's Notice of Entry of Appearance form would be sufficient. Others called for more detailed certifications. For example, the DeNovo Center for Healing and Justice argued that the practitioner should “be required to explain the limitations orally and in writing to the client in both English and the client's native language and obtain the client's informed consent to the limitation in a writing signed by both the client and the attorney.”

Two comments argued that certification is not necessary, because attorneys are already ethically obligated to inform clients as to the nature and scope of representation. Another comment opined that requiring certification to EOIR “could intrude upon privileged attorney-client communications,” especially where the client is a child. This commenter stated that state bar associations are better equipped to enforce safeguards with respect to limited representation than a notification requirement.

Question 6: If limited representation is permitted in proceedings before EOIR, to what extent should such attorneys or representatives have access to the relevant record of proceedings?

Sixteen comments argued that practitioners who engage in limited representation should have access to the relevant record of proceedings in order to competently assess cases, advise respondents, and take the appropriate actions. Commenters stated that practitioners making limited appearances should have the same access to the record of proceedings as those engaging in full representation; that access for practitioners, whether engaging in limited or full representation, should be codified in this regulation; and that access should be easier and faster.

Six of the comments stated that the Department should make access to the record of proceedings for practitioners engaging in limited representation available upon entry of an appearance or with written consent or authorization of the client.

One commenter stated that limited representation practitioners should not continue to have access to the record once the scope of the limited representation has completed, whereas another comment suggested that practitioners should have access to track the outcomes of matters, such as a motion, in which they provided limited representation.

Question 7: To what extent could different approaches for limited representation impair the adjudicative process or encourage abuse or other misconduct that adversely affects EOIR, the public, or aliens in proceedings, or lead to increased litigation regarding issues of ineffective assistance of counsel?

Question 8: What safeguards, if any, should be implemented to ensure the integrity of the process associated with limited representation in proceedings before EOIR, and to prevent any potential abuse and fraud?

Four comments predicted that allowing some form of limited representation would generally not negatively affect EOIR, the public, or respondents in proceedings. Most of the comments, however, recognized that limited representation could create some potential problems and recommended safeguards to address them.

For example, several comments raised concerns that aliens may not understand the limited scope of representation, either due to confusion on the alien's part or unethical behavior on the part of attorneys. Eleven commenters suggested that either practitioners should certify they have informed the individual about the limited scope of representation (9 submissions), or the judge should explain the limited scope of representation on the record (2 submissions). Two comments argued that EOIR should not place additional burdens on practitioners, as rules of professional conduct already require attorneys to inform their clients about the limited nature of representation. Another comment argued that action by EOIR could intrude upon privileged attorney-client communications. One commenter additionally suggested that EOIR also establish a hotline or complaint system so that respondents and petitioners could report fraud and abuse by practitioners. 5

Six submissions raised concerns that attorneys “might overcharge greatly for simple matters” or “may not adjust their fees downward when they engage in limited representation which could drain the available resources of a respondent's family.” Commenters offered a range of suggestions for addressing the issue. One comment suggested EOIR should regulate the fees that practitioners may charge for limited representation. Another comment recommended that EOIR publish a range of suggested fees. Nine comments opposed any interference by EOIR in fee arrangements. Several of these commenters argued that rules of professional responsibility already prohibit attorneys from charging exorbitant fees. Two comments urged the Department to restrict limited representation to pro-bono attorneys or to organizations and accredited representatives approved by EOIR's Office of Legal Access Programs in order to avoid price-gouging or other unscrupulous behavior.

Additionally, several commenters worried that notices and decisions might be mailed to the attorney of record only, and once the attorney's role ends, the respondent would not receive these documents. These commenters were concerned that this in turn could lead to an increase in absentia removal orders due to lack of notice to respondents, and they suggested that notices be mailed to both the representative and the client.

As discussed under Question 1, commenters disagreed strongly as to whether limited representation would impair or improve the efficiency of immigration courts and the Board. The comments opposing did not suggest any modifications, only that the Department should not expand limited representation.

Question 9: What kinds of constraints or legal concerns with respect to limited representation may arise under state rules of ethics or professional conduct for attorneys who are members of the bar in the various states?

Of the twelve comments received addressing this question, many commenters did not foresee any constraints or legal concerns arising under state rules of ethics or professional conduct with respect to limited representation. However, some commenters expressed concerns that states might determine that their rules prohibit limited representation and may possibly implement sanctions for licensed attorneys in their states if they engage in limited representation in immigration court.

One comment opined that a limited appearance rule might be difficult to implement while maintaining the standard of attorney ethical obligations given varied rules in different states. For example, ethical practitioners might not engage in limited representation because of uncertainty over whether the practitioner's state of licensure would consider such conduct ethical. Limited representation might impede a practitioner's obligation to exercise due diligence in representation and zealous advocacy, and, moreover, a succession of practitioners involved in a given respondent's case might also make it difficult to comply with client confidentiality.

Question 10: Should EOIR provide that practitioners, as a condition of representing aliens in a limited manner, be required to agree to limit their fees in charging for their services?

Nine of the 11 comments that addressed this question opposed EOIR interfering with fee arrangements or setting any limit on fees as a condition of permitting practitioners to represent respondents and petitioners on a limited basis. Five comments acknowledged that respondents and petitioners in immigration proceedings are particularly vulnerable to overcharging, but noted that state bar rules and EOIR's own regulations already regulate against unreasonable fees. See 8 CFR 1003.102(a) (prohibiting “grossly excessive” fees). These comments generally stressed that the Department should give practitioners and clients the latitude to determine appropriate fees, depending on the scope of the limited representation, within the confines of these rules.

Two comments stated that EOIR should require practitioners to limit their fees for limited representation. One of these comments expressed concern that practitioners would charge respondents and petitioners fees for full representation when the scope of the work was limited. The other comment suggested that EOIR offer a suggested range of fees for limited representation services, rather than a set amount, to account for the varying amount of work that the practitioner would need to perform in individual cases.

Question 11: The Department is interested in gathering other information or data relating to the issue of expanding limited appearances in EOIR proceedings. Are there any additional issues or information not addressed by the Department's questions that are important for the Department to consider? Please provide as much detail as possible in your response.

The majority of commenters supported their positions with citations to outside sources in the scope of their responses to questions 1 through 10 and, in some instances, in response to this question in particular. The Department appreciates the additional information and has taken it into consideration.

After reviewing the public comments received in response to the ANPRM, the Department is issuing this proposed rule, which would amend §§ 1001.1, 1003.17, and 1003.102 of chapter V of title 8 of the Code of Federal Regulations. The proposed rule would not expand in-court limited representation beyond the existing provisions for custody and bond proceedings. 6 Instead, the Department proposes to allow practitioners to assist pro se individuals with drafting, writing, or filing applications, motions, forms, petitions, briefs, and other documents with EOIR, as long as the nature of the assistance is disclosed on an amended Notice of Entry of Appearance as Attorney or Representative Before the Board of Immigration Appeals or a Notice of Entry of Appearance as Attorney or Representative Before the Immigration Court (Forms EOIR-27 and EOIR-28, collectively, “NOEA forms”). Further, the proposed rule would not allow such continued practice or preparation without additional disclosure following the same procedure. 7 Under this scenario, EOIR would not recognize the practitioner as a representative of record for the individual or case, but would maintain, in the record of proceeding, the practitioner's information as associated with the relevant filing. Moreover, while individuals would be permitted to obtain such assistance, the proposed rule would not create any right or entitlement for aliens to obtain such assistance, nor would it permit EOIR funds to be used for such assistance. Practitioners who assist a pro se alien without representing that alien before EOIR would be required to file the amended NOEA form disclosing the nature of that assistance, either practice or preparation, and related information.

Consistent with this change, the Department proposes to amend the definitions of “practice” and “preparation” to distinguish between acts that involve the provision of legal advice or exercise of legal judgment (practice) and acts that consist of purely non-legal assistance (preparation). Specifically, under the proposed rule, an individual would engage in practice when he or she provides legal advice or uses legal judgment and either appears in person before EOIR, or drafts or files documents with EOIR. Preparation, by contrast, would be limited to completing forms or applications without the provision of legal advice or the exercise of legal judgment—for example, by serving purely as a transcriber or translator. 8

Under the proposed rule, where the individual is pro se and the practitioner's role consists solely of non-representative practice or preparation, the practitioner would be required to submit an amended NOEA form listing his or her name, contact information, bar number (“BAR#”) or EOIR identification number (“EOIR ID#”), as applicable, 9 work done, and fees charged, as well as to complete an attestation and certification on the NOEA form attesting that the practitioner has explained, and the individual understands, the limited nature of the assistance.

Additionally, the proposed rule would make conforming changes to DOJ's regulations concerning limited representation in bond proceedings. The proposed rule would clarify that advocating in open court on behalf of a respondent for purposes of custody or bond proceedings constitutes practice and requires the filing of a notice of appearance. This clarification eliminates any confusion regarding practitioners who may appear in court and advocate on behalf of a respondent without clearly identifying themselves as the legal representative of the respondent. Finally, the proposed rule would make minor, non-substantive changes regarding capitalization of the term “immigration judge” and outdated references to the former INS.

The Department proposes to amend its regulations to more clearly differentiate between legal activities undertaken by attorneys and legal representatives, and non-legal activities that may be undertaken by lay persons.

DOJ's current regulations provide overlapping definitions for “practice” and “preparation.” 8 CFR 1001.1(i), (k). The regulations state that practice includes preparation, and preparation constitutes practice. Id. Both acts involve the provision of legal advice, with preparation being a subset of practice. See 8 CFR 1001.1(k) (defining “preparation” as “study of the facts of a case and the applicable laws, coupled with the giving of advice and auxiliary activities”); id. 1001.1(i) (defining “practice” as appearing before EOIR either in person or through the “preparation” or filing of papers). Moreover, the standards of professional conduct do not vary based on whether a representative engages in preparation or practice.

The Department believes it would be more useful to distinguish between acts that involve the provision of legal advice or exercise of legal judgment (practice) and acts that consist of purely non-legal assistance (preparation). Specifically, under the proposed rule, an individual would engage in practice when he or she provides legal advice or uses legal judgment and either appears in person before EOIR or writes or files documents with EOIR. “Practice” would thus encompass the actions typically regarded as the practice of law related to any matter or potential matter, before or with EOIR, and including both in-court and out-of-court representation. Such actions include legal research, the exercise of legal judgment regarding specific facts of a case, the provision of legal advice as to the appropriate action to take, drafting a document to effectuate the advice, or appearing on behalf of a respondent or petitioner, in person or through a filing.

“Preparation,” by contrast, would be limited to the completion of forms with information provided by the respondent or petitioner without any legal judgment, analysis, advice, or consideration as to the propriety of the form for a respondent or petitioner's circumstances. For example, individuals who appear before EOIR may have help completing applications or forms with such basic, factual information as their name, address, place of birth, etc. These activities do not involve the provision of legal advice or application of legal knowledge or judgment and thus constitute preparation. This proposed rule would not relieve any such preparer from the requirements that the preparer complete the preparer identification or disclosure on the forms containing such request for information. Further, it is important to note that those assisting an individual in completing forms as preparation must take care to avoid providing legal advice or exercising legal judgment regarding a specific case, as such actions would constitute practice and would trigger the additional requirements to which practice is subject as compared to preparation. For example, an individual who advises a client on what details to include in an asylum application in order to establish past persecution, or learns information about an alien's case and suggests taking a particular action, would be engaging in practice. The Department also notes that those not actively licensed in law or fully accredited through EOIR's recognition and accreditation process should not be providing legal judgment or advice, as such actions could constitute the unauthorized practice of law.

Finally, the current definition of “representation” merely cross-references the definitions of “preparation” and “practice.” 8 CFR 1001.1(m). In light of the changes to those definitions, the proposed rule also makes concomitant changes to the definition of “representation” to ensure consistency among the definitions. It also makes clear, consistent with the revised definition of “practice,” that an individual may not take legal action on behalf of an alien in open court in immigration court proceedings without representing that alien throughout the entire action.

The proposed rule would not expand limited representation beyond the existing provisions for custody and bond proceedings. Instead, the Department proposes to allow practitioners to assist pro se individuals with drafting, writing, or filing applications, motions, forms, petitions, briefs, and other documents with EOIR, provided that such assistance is clearly disclosed on an amended NOEA form. The proposed rule would not allow practitioners to advocate in open court on behalf of a respondent, however, without being recognized as the respondent's legal representative in immigration proceedings and without filing an NOEA form noticing the practitioner's entry of appearance.

In conjunction with the proposed rule, EOIR will amend each of its two NOEA forms to include a section limited to situations in which a practitioner has provided assistance in the form of non-representative practice, but does not wish to take on actual representation in the EOIR proceeding, and a section limited to the rare situation in which a practitioner has engaged in preparation.

In all cases in which a practitioner intends to represent an individual in immigration proceedings, including all cases in which a practitioner advocates on behalf of an individual in open court, the practitioner would complete the section of the amended NOEA form relating to representation similar to the current practice with the existing EOIR Forms 27 and 28.

In cases where a practitioner engages in non-representative practice, the practitioner would complete one of the new portions of the NOEA form disclosing the legal assistance and additional information discussed below. The practitioner would also attest that the alien understands the limited nature of the assistance being provided, and the alien would certify that he or she understands the limited nature of the practitioner's role. The NOEA form would then be filed with EOIR concomitantly with whatever filing was the subject of the legal assistance.

In all cases in which an individual, either a practitioner or non-practitioner, assists an alien with filling out an application form that requires disclosure of the assistance— e.g., an Application for Asylum and for Withholding of Removal (Form I-589); Application to Register Permanent Residence or Adjust Status (Form I-485); Application for Suspension of Deportation (Form EOIR-40); Application for Cancellation of Removal for Certain Permanent Residents (Form EOIR-42A); Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents (Form EOIR-42B); or, Application for Suspension of Deportation or Special Rule Cancellation of Removal (Form I-881)—the person assisting would still be required to disclose the assistance on the form where indicated.

In the unlikely or rare situation in which a practitioner engages in preparation that is not based on a form that already requires disclosure of the assistance, the practitioner would complete one of the new portions of the NOEA form disclosing the preparation and the additional information discussed below. The practitioner would also attest that the alien understands the preparatory nature of the assistance provided, and the alien would certify his or her understanding. The NOEA form would then be filed with EOIR concomitantly with whatever filing was the subject of the preparation. In all other cases— i.e., in which a non-practitioner engages in preparation—no separate form would need to be filed; however, any preparer instructions or disclosure would need to be completed upon assistance of any kind with a form requesting that information.

Thus, the proposed rule covers scenarios in which practitioners or non-practitioners provide only preparation to assist a pro se alien only by drafting, writing, or otherwise completing documents for filing with EOIR; and the filing  10 of those documents. 11

This proposed rule would not change the current requirement that a practitioner who wishes to appear in person before EOIR on behalf of an individual must enter a notice of appearance and remains obligated to represent his or her client unless and until an immigration judge permits withdrawal from representation. In this way, the proposed rule would ensure continuity of representation in cases in which a practitioner has entered an appearance while also providing pro se respondents with the opportunity to receive assistance with pleadings, applications, petitions, motions, briefs, or other documents, consistent with the clearer definitions of practice and preparation, from individuals who would not be required to enter a full appearance and incur a continuing representation obligation.

Under the proposed rule, EOIR would consider individuals to be pro se if a practitioner has not filed an NOEA form noticing that the practitioner is serving as the individual's legal representative in immigration proceedings. The filing of an amended NOEA form indicating that a practitioner has engaged in non-representative practice or preparation would not alter the alien's representation status. As with all pro se respondents, the individuals would remain responsible for their own representation while in court, including receiving notice of upcoming hearings and deadlines. The Department believes that this will help address commenters' concerns that notices and decisions might be sent to representatives who are no longer on the case, instead of being sent to the petitioner or respondent.

Further, EOIR would not recognize a practitioner as an attorney or other representative for the individual unless the practitioner filed an NOEA form for all proceedings or appropriate limited representation related to custody and bond proceedings. The proposed rule neither creates any right or entitlement for alien to obtain such assistance nor provides for Department funds to be put toward that purpose. The Department believes this may help mitigate concerns expressed by NAIJ that limited representation would lead to individuals filing multiple motions for continuance in order to replace counsel who only represent the individual for a short time.

For cases involving non-representative practice or preparation, the revised NOEA forms would require the practitioner to provide his or her name, contact information, BAR# or EOIR ID# (as applicable), general nature of work done, and fees charged, as well as to complete an attestation and certification on the NOEA form attesting that the practitioner has explained, and the individual understands, the limited nature of the assistance. 12

Only practitioners are affected by the proposed rule. 13 Typically, if an alien has a non-practitioner assist in the purely clerical task of completing blank spaces on printed forms, there would be no need to file an NOEA form. The non-practitioner, however, still would be required to follow any applicable form instructions for completing the preparer's block.

In adopting these disclosure requirements, the Department agrees with those comments warning against “ghostwriting.” Ghostwriting occurs when an unidentified individual assists with, drafts, or writes pleadings, applications, petitions, motions, briefs, or other documents on behalf of a respondent or petitioner, which are filed with EOIR without disclosing the identity of the person who provided assistance. Ghostwritten documents can contain false or fraudulent information, sometimes unbeknownst to respondents and petitioners. They often present substandard, inaccurate, or boilerplate work products. Ghostwriting harms the parties to EOIR proceedings and undermines the integrity of proceedings, candor to the tribunal, and accountability. See, e.g., Villagordoa Bernal v. Rodriguez, No. 16-cv-152—CAS, 2016 WL 3360951, at *7 (C.D. Cal. June 10, 2016) (“[T]he parties are reminded that ghostwriting of pro se filings is, of course, inappropriate and potentially sanctionable conduct.” (citing Ricotta v. California, 4 F. Supp. 2d 961, 986 (S.D. Cal. 1998))); Tift v. Ball, No. 07-cv-276—RSM, 2008 WL 701979, at *1 (W.D. Wash. Mar. 12, 2008) (“It is therefore a violation for attorneys to assist pro se litigants by preparing their briefs, and thereby escape the obligations imposed on them under Rule 11.”); Laremont-Lopez v. S.E. Tidewater Opportunity Ctr., 968 F. Supp. 1075, 1078-79 (E.D. Va. 1997) (explaining that ghostwriting causes confusion regarding representation, interferes with the administration of justice, constitutes a misrepresentation to the court under Rule 11, and while “convenient for counsel,” disrupts the proper conduct of proceedings); Clarke v. United States, 955 F. Supp. 593, 598 (E.D. Va. 1997) (“Notably, the true author of plaintiff's putatively pro se pleadings and supporting documents appears to have had formal legal training. Ghost-writing by an attorney of a `pro se' plaintiff's pleadings has been condemned as both unethical and a deliberate evasion of the responsibilities imposed on attorneys by Federal Rule of Civil Procedure 11 . . . Thus, if in fact an attorney has ghost-written plaintiff's pleadings in the instant case, this opinion serves as a warning to that attorney that this action may be both unethical and contemptuous.”), vacated on other grounds by 162 F.3d 1156 (4th Cir. 1998) (table); Johnson v. Board of County Com'rs of County of Fremont, 868 F. Supp. 1226, 1231-32 (D. Col. 1994) (“Moreover, such undisclosed participation by a lawyer that permits a litigant falsely to appear as being without professional assistance would permeate the proceedings. The pro se litigant would be granted greater latitude as a matter of judicial discretion in hearings and trials. The entire process would be skewed to the distinct disadvantage of the nonoffending party . . . . Having a litigant appear to be pro se when in truth an attorney is authoring pleadings and necessarily guiding the course of the litigation with an unseen hand is ingenuous to say the least; it is far below the level of candor which must be met by members of the bar.”), aff'd, 85 F.3d 489 (10th Cir. 1996). In short, most federal courts condemn the practice of ghostwriting without disclosure of professional legal assistance:

Ghostwriting is closely related to, and often a vehicle for, notarios   14 and other bad actors. These individuals either seek to deceive and mislead respondents, petitioners, and EOIR or, with the acquiescence of respondents and petitioners, seek to perpetuate fraud in and undermine EOIR proceedings. Accordingly, the Department proposes to follow the approach of federal courts regarding ghostwriting, based on concerns not only of misrepresentation to the tribunal regarding whether a respondent is truly pro se but also in order to protect respondents from the unique and significant negative impact notarios and other bad actors have on them and their cases in immigration proceedings generally. 15

DOJ believes that the proposed requirements may reduce the ability of notarios and other bad actors to operate in immigration proceedings through ghostwriting. Respondents and petitioners, through the proposed rule and education efforts, would know to avoid the assistance of practitioners or other bad actors who are unwilling to identify themselves on documents with which they assist. Practitioners or other bad actors' refusal to do so would be a clear sign that the respondent or petitioner should seek assistance elsewhere. Further, the identification requirement would enable respondents, petitioners, EOIR, and other authorities to properly address allegations of ineffective assistance of counsel or other issues related to the quality and substance of the limited representation, which may violate EOIR's Rules of Professional Conduct or state bar rules.

The proposed rule would also require practitioners to disclose the fees they charge when disclosing assistance. The Department agrees with those commenters who identified the risk that unscrupulous attorneys and representatives who seek to overcharge may pose to vulnerable individuals. The Department also agrees with those commenters who argue against EOIR setting fee schedules—whether mandatory or suggested. The Department believes that requiring practitioners to disclose their fees when disclosing out-of-court assistance strikes a reasonable middle ground. Such a disclosure requirement would act as a deterrent to overcharging and, thus, aid in protecting potentially vulnerable individuals. It would also facilitate EOIR's efforts to enforce its Rules of Professional Conduct prohibiting practitioners from charging “grossly excessive” fees for their services. 8 CFR 1003.102(a). The Department does not intend, however, to use the information collected for any purpose outside of the Department's System of Records Notice  16 or to involve itself in the fee arrangements between practitioners and clients.

Upon issuance of a final rule on this topic, the Department would also amend its NOEA forms to include—for cases involving non-representative practice and preparation—a practitioner's attestation that he or she explained to the alien the limited scope of the assistance being provided and that the practitioner believes the alien understood the limited representation. It would also require a certification by the individual verifying that he or she understands the limited nature of the assistance. In adopting these requirements, the Department agrees with those comments that reasoned that a certification and attestation requirement would help “create accountability for attorneys and representatives” and prevent clients from being “misled to think that the attorney or representative would be representing them from beginning to end.” This new attestation, while always presumed from practitioners under applicable ethics rules, could help deter fraud; a practitioner may be wary of submitting a document with a false attestation to a federal agency. Further, the certification requirement will help protect practitioners from unfounded complaints of ineffective assistance of counsel.

The Department notes that nothing in the amended NOEA forms requires practitioners to provide details as to legal strategy. Accordingly, contrary to some comments, the additional attestation would not intrude upon attorney-client privileged information. 17

The proposed rule would make conforming changes to the provisions governing limited appearances for custody and bond proceedings, requiring the disclosure of non- representative practice or preparation by practitioners in those proceedings.

Consistent with the changes to the definitions of “practice,” “preparation,” and “representation” in the proposed rule, and with the allowance for non-representative practice with disclosure, the proposed rule would also amend 8 CFR 1003.102(t) to provide that a practitioner who engages in practice or preparation as the terms are defined in § 1001.1(i) and (k) and fails to submit a signed and completed NOEA form as required by § 1003.17 or § 1003.38 would be subject to disciplinary sanction in the public interest. The current version of 8 CFR 1003.102(t) is premised on confusing definitions of “practice” and “preparation” and requires a pattern or practice of failing to submit an NOEA form before disciplinary action may be taken. In light of the clearer definitions of “practice” and “preparation” in the proposed rule and the allowance of non-representative practice, the Department views the “pattern or practice” requirement as no longer necessary in order to appropriately enforce the rules of professional conduct for practitioners. Moreover, because practitioners may engage in non-representative practice outside of court under the proposed rule, the importance of the disclosure requirements of the NOEA forms for both aliens and immigration judges is heightened, and the damage from just one instance of failing to file the appropriate form is accordingly greater. Consequently, the proposed rule deletes the requirement that there must be a pattern or practice of failing to file NOEA forms before a disciplinary sanction may result.

The Department of Homeland Security (“DHS”) maintains its own definitions of practice, preparation, and representation in 8 CFR 1.2 that are similar, though not identical, to the definitions utilized by the Department in 8 CFR 1001.1. DHS also relies on the categories enumerated in 8 CFR 1003.102 as a basis to impose disciplinary sanctions on individuals who practice before it pursuant to 8 CFR 292.3; however, 8 CFR 1003.102(t) cross-references only the Department's definitions of practice, preparation, and representation in 8 CFR 1001.1, and not DHS's definitions. Thus, the Department's proposal to change those definitions to account for activities unique to court proceedings, such the drafting of motions or briefs with electing to represent an alien in open court, may unintentionally impede DHS's ability to discipline those who practice before it. Accordingly, the Department is also amending 8 CFR 1003.102(t) to make clear that it also applies to the relevant definitions regarding practice, preparation, and representation before DHS in 8 CFR 1.2.

Finally, the proposed rule makes conforming changes to 8 CFR 1003.102(u) to make clear that practice provided by 8 CFR 1001.1(i)(2) may still be subject to disciplinary sanctions if the practice indicates a substantial failure to competently and diligently represent the client.

The proposed rule would not expand access to records of proceedings beyond the current law. Records of proceedings typically contain sensitive information protected from third-party disclosure by the Privacy Act, asylum confidentiality regulations, and other laws. Existing mechanisms, such as the Freedom of Information Act (“FOIA”), are sufficient for third parties to obtain access to such records. Under current practice, the record of proceedings is readily available for review by the alien and the alien's attorney or representative of record. Moreover, except in rare cases involving classified information or the issuance of a protective order or in cases involving in absentia hearings, every immigration court order and every document considered by an immigration judge in adjudicating a respondent's case is served on the respondent. Thus, an individual who wishes to assist an alien in immigration proceedings may quickly and easily obtain information or documents about a case directly from the alien.

Alternatively, that individual may obtain access to the record of proceedings by choosing to serve as the respondent's representative of record or by filing a FOIA request. Against the backdrop of applicable privacy and confidentiality laws, the presence of these multiple avenues of access to records of proceedings by those wishing to assist aliens in immigration proceedings strikes the proper balance between facilitating legal assistance and protecting sensitive information of respondents.

The Attorney General, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities. Practitioners who wish to represent aliens in person in immigration proceedings are already required to submit an NOEA form, and all individuals who prepare an application form for an alien are already required to disclose such preparation if the form requires it. Although this proposed rule will require practitioners who provide legal assistance to aliens outside of court but do not formally represent them in court to submit an NOEA form, most, if not all, such practitioners are already well-versed in submitting the form for cases in which they do represent an alien in immigration court proceedings. Further, the number of practitioners who solely provide preparation for a filing that does not otherwise require disclosure of such preparation will be exceedingly small because most practitioners do not solely provide preparation and all common immigration applications already require disclosure of preparation. Moreover, the form is not expected to be time-consuming and will involve only providing information the involved practitioner or other person providing assistance already knows well— i.e. their own contact information.

This proposed rule will not result in the expenditure by state, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This proposed rule is not a major rule as defined by section 804 of the Congressional Review Act. This proposed rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of U.S.-based enterprises to compete with foreign-based enterprises in domestic and export markets.

The Department has determined that this rulemaking is a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review. Accordingly, this proposed rule has been submitted to the Office of Management and Budget (“OMB”) for review. This proposed rule has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review,” section 1(b), Principles of Regulation; in accordance with Executive Order 13563, “Improving Regulation and Regulatory Review,” section 1(b), General Principles of Regulation; and in accordance with Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs.”

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health, and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of using the best available methods to quantify costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Similarly, Executive Order 13771 requires agencies to manage both the public and private costs of regulatory actions.

The rule imposes no new costs on either the Government or on practitioners or aliens. Immigration court personnel, including immigration judges, are already well-versed and familiar with reviewing existing NOEA forms. Further, as practitioners are expected to adhere to the rules of practice in fulfillment of ethical and professional responsibility obligations, the proposed rule should not increase disciplinary actions against practitioners or otherwise increase the time spent by immigration court personnel reviewing filings.

As discussed above, practitioners who wish to represent aliens in person in immigration proceedings are already required to submit an NOEA form, and all individuals who prepare an application form for an alien are already required to disclose such preparation if the form requires it. Thus, this proposed rule adds no new requirements to most immigration court filings or for practitioner behavior. Although this propsed rule will require practitioners who provide legal assistance to aliens outside of court but do not formally represent them in court to submit an NOEA form, most, if not all, such practitioners are already well-versed in submitting the form for cases in which they do represent an alien in immigration court proceedings. Further, the number of practitioners who solely provide preparation for a filing that does not otherwise require disclosure of such preparation is negligible. Moreover, the form, which mirrors existing forms, will not add any significant time burden and will involve only a writing of information the involved practitioner or other person providing assistance already knows well— i.e., their own contact information.

Thus, for the reasons explained above, the expected costs of this proposed rule are likely to be de minimis. This proposed rule is accordingly exempt from Executive Order 13771. See Office of Mgmt. & Budget, Guidance Implementing Executive Order 13771: Reducing Regulation and Controlling Regulatory Costs (2017).

This proposed rule will not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, the Department has determined that this proposed rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

This proposed rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

Under the Paperwork Reduction Act of 1995 (“PRA”), no person is required to respond to a federal collection of information unless the agency has in advance obtained a control number from OMB. In accordance with the PRA, the Department has submitted requests to OMB to revise the currently approved information collections contained in this proposed rule: Form EOIR-26, Notice of Appeal from a Decision of an Immigration Judge; Form EOIR-27, Notice of Entry of Appearance as Attorney or Representative Before the Board of Immigration Appeals; and Form EOIR-28, Notice of Entry of Appearance as Attorney or Representative Before the Immigration Court. These information collections were previously approved by OMB under the provisions of the PRA, and the information collections were assigned OMB Control Number 1125-0002 for the EOIR-26, 1125-0005 for Form EOIR-27, and 1125-0006 for Form EOIR-28. Through this notice of proposed rulemaking, the Department invites comments from the public and affected agencies regarding the revised information collections. Comments are encouraged and will be accepted for 60 days in conjunction with the proposed rule. Comments should be directed to the address listed in the ADDRESSES section at the beginning of this preamble. Comments should also be submitted to the Office of Management and Budget, Office of the Information and Regulatory Affairs, Attention: Desk Officer for EOIR, New Executive Building, 725 17th Street NW, Washington, DC 20053. This process is in accordance with 5 CFR 1320.10.

If you have any suggestions or comments, especially on the estimated public burden or associated response time, or need a copy of the proposed information collection instruments with instructions or additional information, please contact the Department as noted above. Written comments and suggestions from the public and affected agencies concerning the proposed collections of information are encouraged.

Comments on the proposed information collections should address one or more of the following four points: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) enhance the quality, utility, and clarity of the information to be collected; or (4) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology ( e.g., permitting electronic submission of responses).

Based on the proposed rule, the currently approved information collection instruments will need to be revised. The revised Form EOIR-27 will continue to be used by practitioners to enter an appearance before the Board of Immigration Appeals on appeals related to immigration judge decisions, DHS officer decisions, fines, and disciplinary proceedings. The revised Form EOIR-28 will continue to be used by practitioners to enter an appearance before the immigration court to represent aliens in removal or bond proceedings or to represent an individual in a practitioner disciplinary proceeding. Forms EOIR-27 and EOIR-28 also will be revised to allow practitioners to disclose non-representative practice or preparation as described above. All of the information required under the current information collection will continue to be required by the revised form. The Department invites comments as to whether additional changes need to be made to the forms to more clearly attest to consent received for representation, where appropriate, and certification that the alien understands the scope of the limited representation being provided.

Under the current information collection, which is not used for limited representation, the estimated average time to review and complete the forms is six minutes. The Department estimates that when disclosing non-representative practice or preparation, the average time to review and complete the forms will be eight minutes rather than the current six minutes, adding an additional two minutes to provide fee information and complete the attestation and certification. The total public burden of these revised collections are estimated to be 6,728,232 burden hours annually ((for Form EOIR-27, 53,816 respondents (FY 2019) × 1 response per respondent × 8 minutes per response = 7,175.5 burden hours) + (for Form EOIR-28, 787,213 respondents (FY 2019) × 1 response per respondent × 8 minutes per response = 104,961.73 burden hours) = 112,137.23 burden hours). The number of estimated responses was derived from the average annual responses received for the past three fiscal years for each form. Eight minutes was used for all responses to estimate the maximum burden possible to the public. The Department expects that the total number of responses received annually for each form may increase as the rule creates additional appearance types than what was previously permitted before EOIR, but is unable to estimate at this time how much of an increase is expected since receipts may not increase at all but just change in type of appearance.

There are no capital or start-up costs associated with these information collections. There are also no fees associated with filing these information collections. The estimated public cost is a maximum of $6,355,938.20. This amount is reached by multiplying the burden hours (112,137.23) by $56.68, which represents the current median hourly wage for attorneys, as set by the Bureau of Labor Statistics. The amount $6,355,938.20 represents the maximum estimate of cost burden. EOIR notes that this form is submitted by an immigration practitioner, including attorneys or accredited representatives; as such, respondents are not likely to retain a practitioner separately to assist them in filling out the forms. Forms EOIR-27 and EOIR-28 burden expectation is two minutes more per form than the current estimate of six minutes per form, so the burden hours noted are inflated as compared to the increase of burden on the public.

Accordingly, for the reasons set forth in the preamble, the Department of Justice proposes to amend parts 1001 and 1003 of chapter V of title 8 of the Code of Federal Regulations as follows:

The revisions read as follows:

On August 13, 2020, DOE published a NOPR in the Federal Register soliciting public comment on a proposal to amend the regulatory definition of the statutory term “showerhead.” 85 FR 49284. Comments were originally due on September 14, 2020. Subsequently, DOE published a notification of public meeting (webinar) and extension of comment period on August 31, 2020, extending the comment period until September 30, 2020. 85 FR 53707. On September 15, 2020, DOE received a comment from Appliance Standards Awareness Project (“ASAP”), Alliance for Water Efficiency, American Council for an Energy-Efficient Economy (“ACEEE”), Consumer Federation of America, the Northwest Energy Efficiency Alliance (“NEEA”), and Natural Resources Defense Council (“NRDC”) to extend to a total of 90 to 120 days the DOE comment period for the NOPR. 1 DOE has reviewed the request and considered the benefit to stakeholders in providing additional time to review the NOPR, and gather information/data that DOE is seeking. Accordingly, DOE has determined that an extension of the comment period is appropriate, and is hereby extending the comment period by an additional 14 days, until October 14, 2020 for a total of a 62 day comment period.

This document of the Department of Energy was signed on September 22, 2020, by Alexander N. Fitzsimmons, Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and Renewable Energy, 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 .

SBA's SBIC program is designed to enhance small business access to capital by stimulating and supplementing “the flow of private equity capital and long-term loan funds which small-business concerns need for the sound financing of their business operations and for their growth, expansion, and modernization, and which are not available in adequate supply.” Small Business Investment Act of 1958, as amended, 15 U.S.C. 661, et seq. (the “Act”). The SBIC program's primary objective is to “improve and stimulate the national economy in general and the small-business segment thereof in particular.” Id.

SBICs are privately owned and managed investment funds, licensed and regulated by SBA, that use capital raised from private investors (what SBA generally refers to as “Regulatory Capital”) to make equity and debt investments in qualifying small businesses. SBICs pursue investments in a broad range of industries, geographic areas, and stages of investment. SBA licenses many SBICs to issue SBA-guaranteed debentures (“Debentures”), an unsecured debt instrument, typically with a 10-year term, the repayment of which is guaranteed by SBA using the full faith and credit of the United States. SBA typically authorizes SBICs to issue Debentures up to a maximum of two times an SBIC's Regulatory Capital, but not to exceed $175 million per SBIC. Debentures are typically sold in public offerings twice a year. This process allows SBICs to borrow at favorable interest rates and increases the amount of investable capital available to SBICs to invest in small businesses.

From the inception of the SBIC program to December 31, 2019, SBICs have invested approximately $103.5 billion in approximately 184,135 financings to small businesses. In fiscal year 2019, SBICs invested $5.86 billion in 1,191 small businesses. As of December 31, 2019, there were a total of 299 licensed and operating SBICs with Regulatory Capital of approximately $17 billion. In addition, as of December 31, 2019, SBA had guaranteed outstanding Debentures or had outstanding commitments to guarantee Debentures to SBICs in the approximate aggregate amount of $14.5 billion.

SBA is proposing to remove from the CFR eighteen regulations that are no longer necessary, because the rules reflect statutes that have been repealed, do not have any current or future applicability, or are otherwise inefficient or unnecessary. Specifically, SBA is proposing to remove eight regulations relating to SSBICs (also referred to as “Section 301(d) Licensees”). Prior to 1996, Section 301(d) of the Act authorized SBA to issue licenses to SSBICs, which were required to invest “solely in small business concerns which will contribute to a well-balanced national economy by facilitating ownership in such concerns by persons whose participation in the free enterprise system is hampered because of social or economic disadvantages[.]” Section 301(d) was repealed by Section 208(b)(3)(A) of Public Law 104-208, enacted September 30, 1996 (the “Improvement Act of 1996”). Section 208(b)(3)(B) of the Improvement Act of 1996 provided, “[t]he repeal under subparagraph (A) shall not be construed to require the Administrator to cancel, revoke, withdraw, or modify any license issued under section 301(d) of the Small Business Investment Act of 1958 before the date of enactment of this Act.” As a result, no new SSBIC licenses have been issued since October 1, 1996, but existing SSBICs have been allowed to remain in the program. The Improvement Act of 1996 also repealed the special kinds of financial assistance (“Subsidized Leverage”) that SBA previously made available to SSBICs under former Section 303(c) of the Act. Such Subsidized Leverage was previously available to SSBICs in the form of Debentures with an interest rate subsidy or certain types of preferred stock (“Preferred Securities”) with a specified dividend. Although Subsidized Leverage can no longer be issued, the Improvement Act of 1996 did not require SSBICs to prepay or redeem such Subsidized Leverage prior to its scheduled maturity. Approximately six SSBICs are currently operating, but no Subsidized Leverage remains outstanding, so SBA proposes to remove the regulations related to Subsidized Leverage. The SSBICs remaining in the program will not be impacted by the changes proposed in this rule and, if eligible, those SSBICs may continue to apply to issue standard Debentures.

SBA is proposing to remove four regulations relating to Participating Securities (as defined in 13 CFR 107.50) and SBICs that issued Participating Securities (“Participating Securities SBICs”). The fees payable by Participating Securities SBICs were not sufficient to cover the projected net losses of the Participating Securities program and no funds have been appropriated for this program for over 15 years. As a result, since October 1, 2004, SBA has not been able to issue new commitments for Participating Securities. Approximately 25 Participating Securities SBICs remain operating in the program, but the last Participating Securities issued by Participating Securities SBICs were required to be redeemed by February 2019. The changes proposed in this rule will not impact any licensed Participating Securities SBIC.

SBA is proposing to remove two regulations relating to a category of SBICs created in 2012 by regulation, in which SBICs were required to invest at least fifty percent of their capital in early stage small businesses (“Early Stage SBICs”). The final rule (77 FR 25042, April 27, 2012) defining this category of Early Stage SBICs stated that SBA's intent was to license Early Stage SBICs over a 5-year period (fiscal years 2012 through 2016). SBA published a rule on September 19, 2016 (81 FR 64075) proposing to make the Early Stage SBIC initiative a permanent part of the SBIC program, but withdrew the proposed rule on June 11, 2018 (83 FR 26875) because, among other things, few qualified funds applied to the Early Stage SBIC initiative and the comments to the proposed rule did not demonstrate broad support for a permanent Early Stage SBIC program. SBA proposes to remove the licensing regulations related to Early Stage SBICs since SBA is no longer licensing these funds. The removal of these regulations will have no impact on the Early Stage SBICs remaining in the program.

Finally, SBA is proposing to remove four regulations that are duplicative, redundant, or otherwise inefficient or unnecessary. In connection with this rulemaking, SBA proposes certain non-substantive amendments to other regulations to remove internal references to the removed regulations or make certain other clarifying changes. SBA is also proposing one clarifying change unrelated to the removal of these regulations, but which is required by amendments to the Act that occurred in 2018. SBA is proposing to increase the maximum amount of Leverage (as defined in 13 CFR 107.50) available to a single SBIC from $150 million to $175 million.

On August 15, 2017 (82 FR 38617), SBA published in the Federal Register a request for information seeking input from the public on identifying which of the Agency's regulations should be repealed, replaced, or modified because they are obsolete, unnecessary, ineffective, or burdensome. On October 13, 2017 (82 FR 47645), SBA extended the comment period. SBA has reviewed the comments submitted by the public in response to that request. Further, in an effort to obtain additional feedback from SBIC program stakeholders, SBA held a series of roundtables with SBICs, third-party service providers, and investors on May 22, 2018, July 17, 2018, and August 7, 2018, respectively.

The comments SBA received addressed many aspects of the SBIC program and provided SBA with a better understanding of certain focus-areas of the regulations that program participants and stakeholders are concerned about. In this rule, SBA is proposing to remove certain regulations that commenters suggested removing— e.g., certain Participating Securities SBIC and Early Stage SBIC regulations—and proposing to remove certain others, which SBA believes will have broad support among program participants. SBA understands that this rulemaking does not address all comments and suggestions SBA has received from the public. To that end, SBA is continuing to review the regulations in part 107, and those in part 121 that are applicable to the SBIC program, to determine which regulations SBA believes are most appropriate for removal, streamlining, clarification, or updating. Once that process is complete, SBA intends to propose certain additional changes to its regulations.

On January 30, 2017, President Trump signed Executive Order 13771, Reducing Regulation and Controlling Regulatory Costs, which, among other objectives, is intended to ensure that an agency's regulatory costs are prudently managed and controlled so as to minimize the compliance burden imposed on the public. For every new regulation an agency proposes to implement, unless prohibited by law, this Executive Order requires the agency to: (i) Identify at least two existing regulations that the agency can cancel; and (ii) use the cost savings from the cancelled regulations to offset the cost of the new regulation. SBA believes the removal of the regulations identified herein will make part 107 less confusing and less burdensome for the reader and quantifies the amount of cost savings that may result from this rulemaking in the Executive Order 13771 discussion in Section III below.

On February 24, 2017, the President issued Executive Order 13777, Enforcing the Regulatory Reform Agenda, which further emphasized the goal of the Administration to alleviate the regulatory burdens placed on the public. Under Executive Order 13777, agencies must evaluate their existing regulations to determine which ones should be repealed, replaced, or modified. In doing so, agencies should focus on identifying regulations that, among other things: Eliminate jobs or inhibit job creation; are outdated, unnecessary, or ineffective; impose costs that exceed benefits; create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies; or are associated with Executive Orders or other Presidential directives that have been rescinded or substantially modified. SBA has engaged in this process and has identified the regulations in this rulemaking as appropriate for removal in accordance with Executive Order 13777.

SBA is proposing to amend 13 CFR 107.50 to revise the definition of “Venture Capital Financing.” Currently, this definition states that the term is as defined in 13 CFR 107.1160. SBA is proposing to remove 13 CFR 107.1160, but needs to retain this definition in the regulations because other sections use the defined term. Therefore, SBA is proposing to move the current definition in 13 CFR 107.1160 to 13 CFR 107.50. SBA is not proposing substantive changes to the definition.

In addition, SBA is proposing to revise the definition of “Early Stage SBIC” in 13 CFR 107.50 to remove the reference to 13 CFR 107.310, because SBA is proposing to remove that regulation. SBA is proposing to revise the definition to clarify that an Early Stage SBIC is one that was licensed in connection with SBA's Early Stage SBIC initiative. SBA is also proposing to revise the definition to reference redesignated 13 CFR 107.1810(f)(10) rather than current 13 CFR 107.1810(f)(11) but is not proposing any substantive changes to the definition.

This regulation currently addresses the requirements for ownership of an SSBIC by another SBIC. SBA no longer licenses SSBICs and no SBIC has utilized the structure authorized under this regulation in the recent history of the program. Further, because Subsidized Leverage is no longer available to SSBICs, such a structure would provide little to no benefit to an SBIC, economic or otherwise. For that reason, SBA believes that no SBIC will seek to be structured in the form authorized under this regulation going forward and, accordingly, proposes to remove this section.

This regulation currently provides for special rules applicable to SBICs formed as limited partnerships. SBA is not proposing substantive changes to this regulation. Rather, since this regulation contains a reference to a regulation that SBA is proposing to remove, 13 CFR 107.460, SBA is proposing to amend subsection (d) of 13 CFR 107.160 solely to remove this reference.

This regulation currently provides that stock options issued by any SBIC are not considered compensation and do not count as part of an SBIC's management expenses. Substantially all SBICs are formed as limited partnerships, which do not issue stock options. Further, Management Expenses are expressly defined in current 13 CFR 107.520(a), and that definition does not include stock options. Accordingly, the few SBICs formed as corporations do not rely on current 13 CFR 107.250. SBA proposes to remove this section, because it is no longer necessary.

This regulation currently sets forth the application procedures for Early Stage SBIC applicants. As described above, SBA no longer licenses Early Stage SBICs. Therefore, SBA proposes to remove this section.

This regulation currently sets forth the special evaluation requirements for Early Stage SBIC applicants. Since SBA no longer licenses Early Stage SBICs, SBA is proposing to remove this section.

This regulation currently provides that certain individuals and entities may not, without SBA's prior written approval, exercise control over, or have a greater than ten percent beneficial ownership interest in, two or more SBICs. This regulation is duplicative of the requirements in other SBA regulations. Specifically, sections 107.160, 107.400, and 107.410 require SBA prior approval for any individual or entity to exercise control over, or have a greater than ten percent beneficial ownership interest in, any individual SBIC. Accordingly, this section is not necessary, and SBA proposes to remove it.

SBA does not propose substantive changes to this section but proposes to amend this section to remove internal references to 13 CFR 107.1160 and 107.1170, which sections SBA is proposing to remove in this rulemaking.

13 CFR 107.830 (Minimum duration/term of financing) and 13 CFR 107.840 (Maximum term of Financing) each address the term of financing permissible in the SBIC Program—the minimum term and maximum term, respectively. SBA believes that having two regulations that address the same concept is inefficient. Accordingly, SBA is proposing to streamline these regulations by moving the substance of section 107.840 into section 107.830 and proposes to remove section 107.840. SBA does not intend any substantive changes to the minimum or maximum term of financing permitted under the regulations.

Subsection (d) of this regulation currently requires, in connection with any Leverage draw that would cause an SBIC and any other commonly controlled SBIC to have aggregate outstanding Leverage in excess of $150 million, that the SBIC drawing such Leverage certify that none of the commonly controlled SBICs has a condition of capital impairment. Consistent with the Small Business Investment Opportunity Act of 2017 (Pub. L. 115-187, June 21, 2018), which increased the maximum amount of Leverage available to a single SBIC from $150 million to $175 million, SBA proposes to amend this regulation to revise the dollar amount from $150 million to $175 million. In addition, in connection with the proposed redesignation of certain regulations discussed below, SBA is proposing to amend a reference in subsection (k) of this regulation to refer to 13 CFR 107.1810(f)(10). SBA is not proposing any substantive changes to subsection (k).

This regulation provides that all SBICs issuing Leverage after April 25, 1994, automatically agree to the terms and conditions in sections 107.1800 through 107.1820, as they exist at the time of issuance. The section is duplicative of 13 CFR 107.1800, 13 CFR 107.1810 and 13 CFR 107.1820. SBA proposes to remove the section because it is unnecessary. For the avoidance of doubt, all outstanding Leverage remains subject to 13 CFR 107.1810 or 107.1820, as applicable.

This regulation currently addresses the maximum amount of Leverage that SBICs other than SSBICs and Early Stage SBICs may draw. SBA is proposing three changes to this section. First, consistent with the Small Business Investment Opportunity Act of 2017 (Pub. L. 115-187, June 21, 2018), SBA proposes to amend this regulation to increase the maximum amount of Leverage available to a single SBIC from $150 million to $175 million. Second, SBA proposes to amend this regulation to make it expressly applicable to Section 301(d) Licensees. Currently, 13 CFR 107.1160 (the regulation that applies to Subsidized Leverage for Section 301(d) Licensees) limits Section 301(d) Licensees to the maximum amount of non-Subsidized Leverage available to Section 301(c) licensees. Because SBA is proposing in this rulemaking to remove 13 CFR 107.1160, SBA is proposing to amend 13 CFR 107.1150 to clarify that it applies to Section 301(d) Licensees. Third, SBA is proposing to remove 13 CFR 107.1150(d)(2). Paragraph (d)(2) implemented Section 303(b)(2)(C)(ii) of the Act, which gave SBICs access to additional Leverage if they made at least fifty percent (in dollar amount) of their investments in low-income geographic areas. See Public Law 111-5 (Feb. 17, 2009). When the maximum Leverage available under Section 303(b)(2)(A)(ii) of the Act to an individual SBIC and under Section 303(b)(2)(B) of the Act to SBICs under common control was increased to $175 million (Pub. L. 115-187, June 21, 2018) and $350 million (Pub. L. 114-113, Dec. 18, 2015), respectively, no corresponding change was made to Section 303(b)(2)(C)(ii). As a result, the maximum Leverage limits set forth in that Section of the Act and the implementing regulation at 13 CFR 107.1150(d)(2) are currently lower than the maximum amounts of Leverage available to all debenture SBICs. Paragraph (d)(2) of the regulation, therefore, is not necessary and SBA proposes to remove it.

This regulation currently addresses Subsidized Leverage for Section 301(d) Licensees. No Section 301(d) Licensee currently has any form of Subsidized Leverage outstanding, and, as a result of the Improvement Act of 1996 discussed above, no Section 301(d) Licensee is authorized to issue or draw Subsidized Leverage in the future. SBA proposes to remove this section because it is no longer necessary.

This regulation addresses the maximum amount of Participating Securities an SBIC may issue. As discussed above, since October 1, 2004, SBA has not been able to issue new commitments for Participating Securities. Because this section is no longer necessary, SBA proposes to remove it.

Sections 107.1400 through 107.1450 currently address Subsidized Leverage for Section 301(d) Licensees. No Section 301(d) Licensee currently has any form of Subsidized Leverage outstanding, and, as a result of the Improvement Act of 1996 discussed above, no Section 301(d) Licensee is authorized to issue or draw Subsidized Leverage in the future. SBA proposes to remove these sections because they are no longer necessary.

This section currently addresses the requirements of an exchange of Debentures for Participating Securities. No Participating Securities will be issued in the future. This section, therefore, is obsolete, and SBA proposes to remove it.

This regulation applies to SBICs licensed on or before March 31, 1993, that apply to issue Participating Securities. No SBIC may apply to issue Participating Securities and this rule does not have any current applicability. SBA proposes to remove this section.

SBA proposes to remove 13 CFR 107.1810(f)(9) in its entirety, which is an event of default based solely on the failure to satisfy the investment ratios required under 13 CFR 107.1160(c), a regulation which SBA is proposing to remove in this rulemaking.

SBA is proposing to amend 13 CFR 107.1820(e)(9) to remove the events of default triggered by noncompliance with 13 CFR 107.1160, a regulation which SBA is proposing to remove in this rulemaking.

This regulation currently provides for a forbearance period from application of SBA's capital impairment regulations for Participating Securities SBICs but only up to the first six years after the first issuance of Participating Securities. Since the last Participating Securities were required to be redeemed in February of 2019, this section has not applied to any SBIC for at least four years. This section is obsolete, and SBA proposes to remove it.

The Office of Management and Budget (“OMB”) has determined that this proposed rule does not constitute a significant regulatory action for purposes of Executive Order 12866 and is not a major rule under the Congressional Review Act, 5 U.S.C. 801, et seq.

This proposed rule is expected to be an Executive Order 13771 deregulatory action with an annualized net savings of $16,694 and a net present value of $238,485, both in 2016 dollars. This rule would remove information that is redundant or about obsolete programs, which would reduce confusion around whether these programs still exist. In addition, SBA proposes to increase the maximum amount of Leverage available to a single SBIC from $150 million to $175 million, consistent with the Small Business Investment Opportunity Act of 2017 (Pub. L. 115-187, June 21, 2018).

There are currently 300 SBIC licensees in operation. These calculations assume that 20% of SBIC licensees (60) read the regulations per year and that they will save 4 hours each from reading less burdensome and less confusing regulations because they will no longer contain obsolete information. This time is valued at $75.57 per hour—the median wage of an attorney based on 2018 Bureau of Labor Statistics (“BLS”) data adding 30% more for benefits. This produces total savings per year of $18,137.

In the first year this rule is published, it is expected that 25% of existing SBIC licensees (75) will read this Federal Register notice, which will take 2 hours to read. Assuming $75.57 per hour, the cost in the first year will be $11,336. This cost is not expected to continue into subsequent years.

Quantifying the effect of an increase in the maximum amount of Leverage available to a single SBIC is difficult, but this will provide SBICs more flexibility and will be beneficial to these entities.

Table 1 displays the costs and savings of this rule over the first two years it is published, with the savings and costs in the second year expected to continue into perpetuity. Table 2 presents the annualized net savings in 2016 dollars.

The Fair and Accurate Credit Transactions Act of 2003 (“FACT Act”) was signed into law on December 4, 2003. Public Law 108-159, 117 Stat. 1952. Section 312 of the FACT Act amended section 623  1 of the FCRA by requiring the FTC, with other agencies, to issue guidelines for use by furnishers regarding the accuracy and integrity of the information about consumers that they furnish to consumer reporting agencies (“CRAs”) and to prescribe regulations requiring furnishers to establish reasonable policies and procedures for implementing the guidelines. Section 312 also required the Commission and the other agencies to issue regulations identifying the circumstances under which a furnisher must reinvestigate direct consumer disputes concerning the accuracy of information provided by the furnisher to a CRA. On July 1, 2009, the Commission issued the Furnisher Rule and the accompanying guidelines that became effective July 1, 2010. 2

The Rule requires furnishers to establish and implement reasonable written policies and procedures regarding the accuracy and integrity of the information relating to consumers that they furnish to a CRA. 3 The Rule also requires that furnishers respond to direct disputes from consumers. 4

The Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”) was signed into law in 2010. 5 The Dodd-Frank Act substantially changed the federal legal framework for financial services providers. Among the changes, the Dodd-Frank Act transferred to the Consumer Financial Protection Bureau (“CFPB”) the Commission's rulemaking authority under portions of the FCRA. 6 Accordingly, in 2012, the Commission rescinded several of its FCRA rules that had been replaced by rules issued by the CFPB. 7 The FTC retained rulemaking authority for other rules to the extent the rules apply to motor vehicle dealers described in section 1029(a) of the Dodd-Frank Act  8 that are predominantly engaged in the sale and servicing of motor vehicles, the leasing and servicing of motor vehicles, or both (“motor vehicle dealers”). 9 The retained rules include the Furnisher Rule, which now applies only to motor vehicle dealers. 10 Furnishers that were originally covered by the Furnisher Rule that are not motor vehicle dealers are covered by the CFPB's rule. 11

The Commission adopted the Furnisher Rule at a time when it had rulemaking authority for a broader group of consumer report users. While the Dodd-Frank Act did not change the Commission's enforcement authority for the Furnisher Rule, it did narrow the Commission's rulemaking authority with respect to the Rule. It now covers only motor vehicle dealers. 12 The amendments in the Dodd-Frank Act necessitate technical revisions to the Furnisher Rule to ensure that the regulation is consistent with the text of the amended FCRA. Accordingly, the Commission proposes to modify the Furnisher Rule to reflect the Rule's scope.

The proposed amendment to § 660.1 narrows the scope of the Furnisher Rule to those entities set forth in the Dodd-Frank Act that are predominantly engaged in the sale and servicing of motor vehicles, excluding those dealers that directly extend credit to consumers and do not routinely assign the extensions of credit to an unaffiliated third party. 13 It does so by limiting the furnishers to which it applies from all furnishers within the FTC's enforcement authority to “motor vehicle dealers,” as defined in amended § 660.2. The amendments make no other substantive changes to the Rule.

The proposed amendment to § 660.2 adds a definition of “motor vehicle dealer” that defines motor vehicle dealers as those entities excluded from Consumer Financial Protection Bureau jurisdiction as described in the Dodd-Frank Act. 14 The proposed amendment also changes the definition of “identity theft” by replacing the Rule's reference to 16 CFR 603.2(a), which is an FTC rule that has been rescinded, 15 with a reference to 12 CFR 1022.3(h), the equivalent provision in the CFPB's rule.

In addition to proposing the changes described above, the Commission seeks information about costs and benefits of the Rule, and its regulatory and economic impact. It has been ten years since the Rule was enacted. Consistent with its practice of reviewing all of its rules and guides periodically, the Commission seeks to ascertain whether changes in technology, business models, or the law warrant modification or rescission of the Rule. As part of this review the Commission solicits comments on, among other things, the economic impact and benefits of the Furnisher Rule; possible conflict between the Furnisher Rule and state, local, or other federal laws or regulations; and the effect on the Furnisher Rule of any technological, economic, or other industry changes.

The Commission requests written comment on any or all of the following questions. These questions are designed to assist the public and should not be construed as a limitation on the issues about which public comments may be submitted. The Commission requests that responses to its questions be as specific as possible, including a reference to the question being answered, and refer to empirical data or other evidence upon which the comment is based whenever available and appropriate.

1. Is there a continuing need for specific provisions of the Furnisher Rule? Why or why not?

2. What benefits has the Furnisher Rule provided to consumers? What evidence supports the asserted benefits?

3. What modifications, if any, should be made to the Furnisher Rule to increase the benefits to consumers?

a. What evidence supports the proposed modifications?

b. How would these modifications affect the costs imposed by the Furnisher Rule?

4. What significant costs, if any, has the Furnisher Rule imposed on consumers? What evidence supports the asserted costs?

5. What modifications, if any, should be made to the Furnisher Rule to reduce any costs imposed on consumers?

a. What evidence supports the proposed modifications?

b. How would these modifications affect the benefits provided by the Furnisher Rule?

6. What benefits, if any, has the Furnisher Rule provided to businesses, including small businesses? What evidence supports the asserted benefits?

7. What modifications, if any, should be made to the Furnisher Rule to increase its benefits to businesses, including small businesses?

a. What evidence supports the proposed modifications?

b. How would these modifications affect the costs the Furnisher imposes on businesses, including small businesses?

c. How would these modifications affect the benefits to consumers?

8. What significant costs, if any, including costs of compliance, has the Furnisher Rule imposed on businesses, including small businesses? What evidence supports the asserted costs?

9. What modifications, if any, should be made to the Furnisher Rule to reduce the costs imposed on businesses, including small businesses?

a. What evidence supports the proposed modifications?

b. How would these modifications affect the benefits provided by the Furnisher Rule?

10. What evidence is available concerning the degree of industry compliance with the Furnisher Rule?

11. What modification, if any, should be made to the Furnisher Rule to account for changes in relevant technology or economic conditions? What evidence supports the proposed modifications?

12. Does the Furnisher Rule overlap or conflict with other federal, state, or local laws or regulations? If so, how?

a. What evidence supports the asserted conflicts?

b. With reference to the asserted conflicts, should the Furnisher Rule be modified? If so, why, and how? If not, why not?

13. The Commission proposes to amend the Rule to reflect that the Commission's rulemaking authority has been revised by statute to apply exclusively to motor vehicle dealers. Are the proposed modifications appropriate? Should additional amendments be made? Would these amendments create conflicts with any other federal, state, or local regulations or laws?

14. In 2018, the FCRA was amended to require CRAs to allow consumers to freeze their consumer reports, which restricts access to the reports in order to reduce the risk of identity theft, free of charge. Should § 660.4 be amended to exclude credit freezes from the mandatory investigation requirements of the Furnisher Rule, in the same manner as fraud alerts and active duty alerts under the current rule?

15. The Furnisher Rule is intentionally flexible, referring only to reasonable procedures, because it applies to many different types of entities. In light of the narrowing of the Rule's scope to only motor vehicle dealers, should the Rule be amended to include requirements that are specifically tailored to motor vehicle dealers? For example, should the Rule include provisions that require motor vehicle dealers to furnish specific pieces of information concerning an automobile loan to CRAs? If so, what provisions should be amended or added to more directly address motor vehicle dealers?

You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before December 14, 2020. Write “Furnisher Rule, 16 CFR part 660, Project No. P205408” on the comment. Your comment, including your name and your state, will be placed on the public record of this proceeding, including the https://www.regulations.gov website.

Due to the public health emergency in response to the COVID-19 outbreak and the agency's heightened security screening, postal mail addressed to the Commission will be subject to delay. We strongly encourage you to submit your comments online through the https://www.regulations.gov website. To make sure that the Commission considers your online comment, follow the instructions on the web-based form.

If you file your comment on paper, write “Furnisher Rule, 16 CFR part 660, Project No. P205408” on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex B), Washington, DC 20580; or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW, 5th Floor, Suite 5610 (Annex B), Washington, DC 20024. If possible, please submit your paper comment to the Commission by courier or overnight service.

Because your comment will be placed on https://www.regulations.gov, you are solely responsible for making sure that your comment does not include any sensitive or confidential information. In particular, your comment should not include any sensitive personal information, such as your or anyone else's Social Security number, date of birth, driver's license number or other state identification number or foreign country equivalent, passport number, financial account number, or credit or debit card number. You are also solely responsible for making sure that your comment does not include sensitive health information, such as medical records or other individually identifiable health information. In addition, your comment should not include any “trade secret or any commercial or financial information which . . . is privileged or confidential,” as provided by section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2), including in particular, competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.

Comments containing material for which confidential treatment is requested must be filed in paper form, must be clearly labeled “Confidential,” and must comply with FTC Rule 4.9(c). In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request, and must identify the specific portions of the comment to be withheld from the public record. Your comment will be kept confidential only if the FTC General Counsel grants your request in accordance with the law and the public interest. Once your comment has been posted on https://www.regulations.gov, we cannot redact or remove your comment from that website, unless you submit a confidentiality request that meets the requirements for such treatment under FTC Rule 4.9(c), and the General Counsel grants that request.

Visit the Commission website at https://www.ftc.gov to read this document and the news release describing it. The FTC Act and other laws that the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives on or before December 14, 2020. For information on the Commission's privacy policy, including routine uses permitted by the Privacy Act, see https://www.ftc.gov/site-information/privacy-policy.

Written communications and summaries or transcripts of oral communications respecting the merits of this proceeding, from any outside party to any Commissioner or Commissioner's advisor, will be placed on the public record. 16

The Furnisher Rule contains information collection requirements as defined by 5 CFR 1320.3(c), the definitional provision within the Office of Management and Budget (“OMB”) regulations that implement the Paperwork Reduction Act (“PRA”). 44 U.S.C. 3501 et seq. OMB has approved the Rule's existing information collection requirements through July 31, 2022 (OMB Control No. 3084-0144). Under the existing clearance, the FTC has attributed to itself the estimated burden regarding all motor vehicle dealers and then shares equally the remaining estimated PRA burden with the CFPB for other persons for which both agencies have enforcement authority regarding the Furnisher Rule. This proposal would amend 16 CFR part 660.

The proposed amendments do not modify or add to information collection requirements previously approved by OMB. The amendments narrow the scope to motor vehicle dealers. The Rule's OMB clearance already reflects that change in scope. Therefore, the Commission does not believe the proposed amendments would modify substantially or materially any “collections of information” as defined by the PRA.

The Regulatory Flexibility Act (“RFA”), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, requires an agency to either provide an Initial Regulatory Flexibility Analysis (“IRFA”) with a proposed rule, or certify that the proposed rule will not have a significant impact on a substantial number of small entities. 17 The Commission does not expect that the proposed changes to this Rule, if adopted, would have the threshold impact on small entities. The Commission does not expect the proposal to impose costs on small motor vehicle dealers because the amendments are primarily for clarification purposes and should not result in any increased burden on any motor vehicle dealer. Thus, a small entity that complies with current law need not take any different or additional action if the proposal is adopted.

Therefore, based on available information, the Commission certifies that amending the Furnisher Rule as proposed will not have a significant economic impact on a substantial number of small businesses. Although the Commission certifies under the RFA that the proposed amendment would not, if promulgated, have a significant impact on a substantial number of small entities, the Commission has determined, nonetheless, that it is appropriate to publish an IRFA to inquire into the impact of the proposed amendment on small entities. Therefore, the Commission has prepared the following analysis:

To address the Dodd-Frank Act's changes to the Commission's rulemaking authority, the Commission proposes to clarify that the Rule applies only to motor vehicle dealers.

The objectives of the proposed Rule are discussed above. The legal basis for the proposed Rule is 15 U.S.C. 1681s-2(e).

Determining a precise estimate of the number of small entities  18 is not readily feasible. Financial institutions covered by the Rule include certain motor vehicle dealers. A substantial number of these entities likely qualify as small businesses. The Commission estimates that the proposed amendment will not have a significant impact on small businesses because it imposes no new obligations.

The proposed amendments would impose no new reporting, recordkeeping, or other compliance requirements. The small entities potentially covered by the proposed amendment will include all such entities subject to the Rules.

The Commission has not identified any other federal statutes, rules, or policies that would duplicate, overlap, or conflict with the proposed amendment. Nonetheless, the Commission is requesting comment on the extent to which other federal standards involving consumer reports may duplicate, satisfy, or possibly conflict with the Rule's requirements for any covered financial institutions.

The Commission has not proposed any specific small entity exemption or other significant alternatives because the proposed amendment would not impose any new requirements or compliance costs. Nonetheless, the Commission welcomes comment on any significant alternative consistent with the FCRA that would minimize the impact of the proposed Rule on small entities.

For the reasons stated above, the Federal Trade Commission proposes to amend part 660 of title 16 of the Code of Federal Regulations as follows:

Please note that all comments received, including attachments and other supporting materials, are considered part of the public record. They will be made available by the Drug Enforcement Administration (DEA) for public inspection online at https://www.regulations.gov/. The Freedom of Information Act applies to all comments received. Confidential information or personal identifying information, such as account numbers or Social Security numbers, or names of other individuals, should not be included. Submissions will not be edited to remove any identifying or contact information.

Comments with confidential information, which should not be made available for public inspection, should be submitted as written/paper submissions. Two written/paper copies should be submitted. One copy will include the confidential information with a heading or cover sheet that states “CONTAINS CONFIDENTIAL INFORMATION.” DEA will review this copy, including the claimed confidential information, in its consideration of comments. The second copy should have the claimed confidential information redacted/blacked out. DEA will make this copy available for public inspection online at https://www.regulations.gov/. Other information, such as name and contact information, that should not be made available, may be included on the cover sheet but not in the body of the comment, and must be clearly identified as “confidential.” Any information clearly identified as “confidential” will not be disclosed.

An electronic copy of this document is available at https://www.regulations.gov/.

DEA implements and enforces Titles II and III of the Comprehensive Drug Abuse Prevention and Control Act of 1970 and the Controlled Substances Import and Export Act (21 U.S.C. 801-971), as amended, and referred to as the Controlled Substances Act (CSA or the Act). 1 The CSA is designed to prevent, detect, and eliminate the diversion of controlled substances and listed chemicals into the illicit market while providing for a sufficient supply of controlled substances and listed chemicals for legitimate medical, scientific, research, and industrial purposes. Controlled substances have the potential for abuse and dependence and are controlled to protect the public health and safety. To this end, controlled substances are classified into one of five schedules based upon: The potential for abuse, currently accepted medical use, and the degree of dependence if abused. 21 U.S.C. 812. Listed chemicals are separately classified based on their use in and importance to the manufacture of controlled substances (List I or List II chemicals). 21 U.S.C. 802(33)-(35).

The CSA establishes a closed system of distribution that requires DEA to monitor and control the manufacture, distribution, dispensing, import, and export of controlled substances until they reach their final lawful destination. In order to maintain this closed system of distribution, persons that manufacture, distribute, dispense, import, export, or conduct research or chemical analysis with controlled substances are required to register with DEA at each principal place of business or professional practice. Persons registered with DEA are permitted to possess controlled substances as authorized by their registration and must comply with the applicable requirements associated with their registration. 21 U.S.C. 822. The CSA also establishes a system to monitor and control the manufacture, distribution, import, and export of listed chemicals and requires that persons who seek to engage in these activities obtain a registration authorizing them to do so from DEA.

In carrying out its functions under the Act, DEA “may hold hearings, sign and issue subpoenas, administer oaths, examine witnesses, and receive evidence at any place in the United States.” 21 U.S.C. 875(a). See also 21 U.S.C. 965. The Act requires that, except as otherwise provided, hearings involving the proposed denial of an application for a registration or the proposed suspension or revocation of a registration  2 are to be conducted “in accordance with subchapter II of chapter 5 of Title 5,” which sets forth the procedures for adversary adjudications under the Administrative Procedure Act (APA). 3 21 U.S.C. 824(c)(4).

In accordance with the Attorney General's authority to “promulgate and enforce any rules, regulations, and procedures which he may deem necessary and appropriate for the efficient execution of his functions” under the Act, 21 U.S.C. 871(b), DEA's predecessor agency, the Department of Justice's Bureau of Narcotics and Dangerous Drugs, first issued regulations in 1971 to implement the Comprehensive Drug Abuse Prevention and Control Act of 1970. See 36 FR 7776 (Apr. 24, 1971). With a few exceptions, the administrative hearing provisions of those 1971 regulations are virtually identical to the ones in place today.

The general administrative hearing provisions which apply to all hearings brought pursuant to 21 U.S.C. 823, 824 and 958 are found at 21 CFR part 1316, subpart D. Specific administrative hearing provisions relating to the registration of manufacturers, distributors, dispensers, importers, and exporters of controlled substances are in 21 CFR 1301.32, 34 through 37, and 41 through 46, as well as 21 CFR 1316.41 through 68. Administrative hearing provisions relating to the registration of manufacturers, distributors, importers, and exporters of list I chemicals are in 21 CFR 1309.42, 43, 46, 51 through 55, and 21 CFR 1316.41 through 68.

The changes proposed in this action would apply only to hearings relating to the denial, revocation, or suspension of a DEA registration pursuant to 21 U.S.C. 823, 824, and 958. This proposed rulemaking does not contemplate changes for any other types of hearings that DEA may conduct, including hearings relating to quota issuance, revision, or denial, or those relating to the scheduling of controlled substances.

Current DEA hearing regulations in 21 CFR parts 1301 and 1309 relating to actions to deny, suspend, or revoke a DEA registration contain neither a rule requiring a responsive pleading to an OSC nor a default provision, in contrast to the hearing regulations of many other Federal agencies. Provisions requiring a responsive pleading to a complaint and authorizing the entry of a default are an accepted part of civil and administrative practice. See, e.g., 16 CFR 3.12 (Federal Trade Commission rule regarding answer and default); 40 CFR 22.15, 22.17 (Environmental Protection Agency rules regarding answer and default); 12 CFR 1081.201 (Consumer Financial Protection Bureau rule regarding answer and default); Fed. R. Civ. P. 8(b) and 55. Because of the absence of such provisions, DEA must expend significant resources to adjudicate registration matters even where the applicant or registrant has effectively opted not to litigate. This scenario occurs in a significant number of DEA administrative actions, and the addition of these provisions would conserve scarce agency resources  4 and greatly increase the efficiency of the adjudicatory process. Requiring the applicant/registrant to file an answer would improve efficiency even in cases where an applicant/registrant requests a hearing, by narrowing the scope of the hearing to those issues about which there is a legitimate disagreement between the parties.

DEA proposes to add provisions to §§ 1301.37 and 1309.46 requiring applicants/registrants served with an OSC that request a hearing to file an answer responding to each of the allegations contained in the OSC, and to amend § 1316.47 accordingly. DEA also proposes to amend §§ 1301.43(c) and (d), and 1309.53(b) and (c) by adding provisions allowing for entry of a default in various circumstances.

The addition of §§ 1301.37(d) and 1309.46(d) and the proposed changes to § 1316.47 would require an applicant/registrant who requests a hearing to file an answer within 30 days of the date of receipt of the OSC. The deadline to file a request for a hearing would be shortened to 15 days to expedite the hearing process, but the request form would be amended to only require the hearing request itself, and not a substantive response to the OSC. The substantive response material would still be included in the answer, but would retain the same 30-day deadline provided by the current regulations governing time allowed for filing a response to an OSC under §§ 1301.43(a), 1309.53(a), and 1316.47. These staggered deadlines help keep the administrative process on track by compelling the recipient of an OSC to signal their intention to engage the DEA administrative process within 15 days of being served. Without this sort of a staggered deadline, requests to extend the 30-day deadline to file an answer are likely to arrive on, or after the deadline, and if the request for extension is granted, the administrative litigation process will be delayed for an additional 30 to 60 days. The staggered deadlines are not expected to preclude the filing of all extension requests; however, staggering deadlines will help decrease the number of such filings and ensure they are filed earlier in the process. This proposed rule would signal to DEA whether an applicant/registrant intends to contest an OSC, without reducing the amount of time the applicant/registrant has to prepare a substantive response to the OSC. This earlier knowledge (at the 15-day mark) would allow DEA to prioritize its resources on those matters that will proceed to an administrative hearing, and to prepare for the hearings that are most likely to occur.

Staggered deadlines would place only a marginal burden on recipients of OSC. As noted, a recipient need only send an email to the address provided in the OSC stating “I request a hearing” within 15 days of being served with an OSC. DEA believes that these staggered deadlines are appropriate given the relative lack of effort and complexity of a hearing request affirming that the applicant/registrant intends to engage the administrative process in response to the OSC. Filing an answer would likely require more time and effort. Accordingly, DEA believes that requiring the filing of an answer in 30 days—which is more generous than deadlines set by the Federal Rules of Civil Procedure for analogous parties—is appropriate. See Fed. R. Civ. P. 12(a)(A)(i) (21 day deadline for filing answer).

For each factual allegation in the OSC, the answer must specifically admit, deny, or state that the party does not have, and is unable to obtain, sufficient information to admit or deny the allegation. The proposed rule provides that a party may amend its answer one time prior to the presiding officer's issuance of the prehearing ruling, after which a party may amend its answer only with leave of the presiding officers. These rules would also require an applicant/registrant to serve a copy of its request for a hearing and its answer on the Administration at the address listed in the OSC, in addition to filing these documents with the Office of the Administrative Law Judges (ALJ).

Under the proposed new language in §§ 1301.43(c)(1) and 1309.53(b)(1), a person who fails to timely request a hearing after properly being served with an OSC pursuant to § 1301.37 or 1309.46 would be deemed to have waived his/her/its right to a hearing and to be in default. The proposed new language of §§ 1301.43(c)(1) and 1309.53(b)(1) provides that a person who fails to timely request a hearing may seek to be excused from the default by filing a motion with the Office of ALJ establishing good cause to excuse the default no later than 45 days after the date on which the person received the OSC. Thereafter, any person who has failed to timely request a hearing and seeks to be excused from a default must file a motion with the Office of the Administrator, which shall have exclusive jurisdiction to rule on the motion.

Similarly, the proposed new language in §§ 1301.43(c)(2) and 1309.53(b)(2) provides that any person who has requested a hearing but fails to timely file an answer, or fails to demonstrate good cause (via a motion for relief) for failing to timely file an answer, will be deemed to have waived his/her/its right to a hearing and to be in default. The proposed new language also provides that, upon motion of the Administration in such circumstances, the presiding officer shall then enter an order terminating the proceeding. However, under § 1316.47(b), the presiding officer, upon request and a showing of good cause ( e.g., an unexpected medical emergency, death in the family, excusable neglect), may grant a reasonable extension of the time allowed for filing the answer. See e.g., Rene Casanova, M.D., 77 FR 58,150, 58, 150 n.2 (2012) (collecting cases applying “good cause” standard in context of request for extensions). As with any motion for relief from a deadline, a respondent could seek an extension of time prior to the deadline in question, and the non-moving party would have the opportunity to respond.

The proposed language in §§ 1301.43(c)(3) and 1309.53(b)(3) provides that if the Administration fails to prosecute, or a person who has requested a hearing fails to plead or otherwise defend, that party shall be deemed in default, and the opposing party may move to terminate the proceeding. The proposed rule further provides that upon such motion, the presiding officer shall then enter an order terminating the proceeding absent a showing of good cause by the party deemed to be in default. Upon termination of the proceeding by the presiding officer, a party may seek relief only by filing a motion establishing good cause to excuse its default with the Office of the Administrator. This rule is being proposed because on occasion, applicants/registrants have filed a timely hearing request but, for whatever reason, subsequently failed to participate further in the proceeding, repeatedly failed to adhere to the orders of the presiding officer, or otherwise defend the allegations in the OSC. This means that even if a party who timely filed an answer could subsequently be held in default if it essentially stopped participating in the litigation process, or if its conduct was sufficiently contumacious of the tribunal such that default was an appropriate sanction. This rule, which mirrors the authority trial judges have under the Federal Rules of Civil Procedure to dismiss cases for significant failures to defend or the failure of a party to prosecute a case, see Fed. R. Civ. P. 41(b), 55, would authorize the presiding officer to issue an order terminating the proceeding in such cases.

The proposed new language for §§ 1301.43(e) and 1309.53(d) provides that a default shall be deemed to constitute a waiver of the applicant's/registrant's right to a hearing and an admission of the factual allegations of the OSC.

The proposed new language in §§ 1301.43(f)(1) and 1309.53(e)(1) sets forth the procedures to be followed where a party is deemed to be in default. With respect to an applicant/registrant who is deemed to be in default based on the failure to file a timely hearing request, or where the applicant/registrant is deemed to be in default for failure to file an answer or otherwise defend and the presiding officer has issued an order terminating the proceeding, the proposed rule provides that the Administration may then file a request for final agency action along with a record to support its request with the Administrator who may enter a default pursuant to § 1316.67. This record should include, for instance, documents demonstrating adequate service of process and, where a party held to be in default asserted that the default should be excused, any pleadings filed by both the parties addressing this issue.

In contrast, under the current rules, in cases where the applicant/registrant waives his/her/its right to a hearing, DEA counsel must provide the Administrator with a much more voluminous record, including evidence to support each factual allegation which the Administration seeks to establish. This may include recordings and transcripts of undercover visits, medical records, invoices and dispensing records, and expert reports. Because DEA's current rules do not provide that an applicant's/registrant's waiver of his/her/its right to a hearing constitutes an admission of the factual allegations of the OSC, both the preparation of the record by DEA counsel for submission to the Administrator and the process of reviewing the record and drafting the Administrator's final order require a significant investment of agency resources. The changes proposed here would thus save these resources, which can then be devoted to other pending matters and reduce the time it takes for the Administrator's final order to issue in those cases where applicants/registrants choose not to challenge the proceeding or fail to properly participate in the proceeding.

The proposed rule provides that in the event the Administration is deemed to be in default pursuant to § 1301.43(f)(2) or 1309.53(e)(2), the presiding officer shall transmit the record to the Administrator for his consideration no later than five (5) business days after the date of issuance of the order. The proposed rule also provides that upon termination of the proceeding by the presiding officer, the Administration may seek relief only by filing a motion establishing good cause to excuse its default with the Office of the Administrator.

The proposed new language in §§ 1301.43(f)(3) and 1309.53(e)(3) provides that a party held to be in default may move to set aside an entry of default final order issued by the Administrator by filing a motion no later than 30 days from the date of issuance by the Administrator of an entry of default. However, any such motion shall be granted only upon a showing of good cause to excuse the default.

Under the proposed amendments to §§ 1301.43(e)(1) and 1309.53(d)(1), the Administrator would be authorized to issue a final order on the basis of a default, but would have the discretion not to take such action. For example, the Administrator might conclude that the factual allegations of the OSC, even deeming them admitted, do not establish violations of the CSA or other conduct which is inconsistent with the public interest. The Administrator may also conclude that any violations or misconduct proved by the admissions nonetheless do not warrant the sanction proposed by the Administration. In such instance, the Administrator would retain the discretion to dismiss the OSC, or issue an appropriate order imposing whatever sanction is warranted by the admitted allegations.

DEA also proposes to remove the provisions in §§ 1301.43(c) and 1309.53(b) that allow for the submission of a written statement in lieu of a hearing. For adjudications relating to registrations and applications, these provisions have proven to be unworkable in practice because these proceedings typically involve the need to resolve disputed historical facts and to make credibility determinations. Either party would, however, retain the ability (as exists currently) to seek summary disposition on any allegation for which no material facts were in dispute. The current provisions of §§ 1301.43(c) and 1309.53(b) are ambiguous and do not necessarily even allow for, or require the submission of, additional evidence supporting a position statement. Given that the Administration provides an opportunity for a full and fair hearing to any person issued an OSC in accordance with the Due Process Clause and the Administrative Procedure Act, the current provision allowing the submission of unsworn written statements does not enhance the reliability of the Administration's adjudications. Accordingly, DEA is proposing to remove this procedural option, which historically has been invoked by respondents only sparingly.

DEA is also proposing to remove the opportunity of third parties who are entitled to participate in a hearing under § 1301.43(c) to submit a written position statement in lieu of participating in the hearing. In DEA's experience, no party has ever requested this opportunity, and any such party retains the opportunity to participate in the hearing if the applicant/registrant avails itself of its right to a hearing.

This proposed rule was developed in accordance with the principles of Executive Orders 12866, 13563, and 13771. Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health, and safety effects; distributive impacts; and equity). Executive Order 13563 is supplemental to and reaffirms the principles, structures, and definitions governing regulatory review as established in Executive Order 12866. Executive Order 12866 classifies a “significant regulatory action,” requiring review by the Office of Management and Budget (OMB), as any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. DEA has determined that this proposed rule is not a “significant regulatory action” under Executive Order 12866, section 3(f).

DEA estimates that there are both costs and cost savings associated with the proposed rule. The provisions of this proposed rule apply only to the small minority of applicants and registrants who are issued an OSC. Therefore, a very small minority of registrants would potentially be economically impacted if this rule were promulgated. From 2016 to 2018, there were on average 81 OSCs issued annually. These 81 OSCs fall into one of three categories: (1) An average of 29 cases in which the registrant/applicant surrendered and/or withdrew his/her/its application, thus mooting the case, (2) an average of 11 cases in which the registrant/applicant properly requested a hearing, and (3) the remaining 41 registrants per year who failed to timely file a request for a hearing and were deemed to have waived their right to a hearing and who would be in default under the proposed rule. The 11 registrants per year who properly requested a hearing are estimated to incur costs while the registrants in the remaining two categories do not.

The proposed rule requires that an applicant/registrant must file an answer responding to every allegation in the OSC. The average of 29 cases in which the registrant/applicant surrenders or withdraws his/her/its application, thus mooting the case, would not result in the registrant/applicant filing an answer to the OSC. Therefore, these registrants/applicants would not incur any costs. The average of 11 cases per year where an applicant requests a hearing may incur a cost associated with answering the factual allegation(s) of the OSC. To estimate the cost of this proposed change, DEA estimates that, on average, it will take five hours for a registrant's attorney to review the OSC and prepare an answer to all allegations. The total estimated cost of this proposed change is $36,190 per year. 5

The remaining 41 cases, where there was neither a registration surrendered nor a hearing conducted, would be differently impacted by this proposed rule. The proposed rule provides that where a party defaults, the factual allegations of the OSC are deemed admitted. For these 41 cases, where there was registrant inaction, the registrant's cost of inaction is the same under current or proposed rules. There is no additional cost to registrants. This proposed rule would also provide that a default may only be set aside upon a party establishing good cause to excuse its default. DEA has no basis to estimate the number of affected parties who will seek to establish good cause to set aside a default and any costs associated with such activities.

However, under Kamir Garces Mejias, 72 FR 54931 (2007), a party seeking to be excused from an ALJ order terminating a proceeding for failing to comply with the ALJ's orders is required to show good cause to excuse its default. Thus, because this proposed requirement of the rule simply codifies case law, it imposes no additional cost to registrants.

Finally, this proposed rule would also result in cost savings for DEA by streamlining the Administrator's review process using the default determination. The proposed rule provides that when an applicant/registrant is deemed to be in default, the Administration may then file a request for final agency action along with a record to support its request with the Administrator who may enter a default. This record should include, for instance, documents demonstrating adequate service of process and, where a party held to be in default asserted that the default should be excused, any pleadings filed by both the parties addressing this issue. In contrast, under the current rules, in cases where the applicant/registrant waives his/her/its right to a hearing, DEA counsel must provide the Administrator with a much more voluminous record, including evidence to support each factual allegation which the Administration seeks to establish. Because DEA's current rules do not provide that an applicant's/registrant's waiver of his/her/its right to a hearing constitutes an admission of the factual allegations of the OSC, both the preparation of the record by DEA counsel for submission to the Administrator and the process of reviewing the record and drafting the Administrator's final order require a significant investment of agency resources. The changes proposed here would thus save these resources, which can then be devoted to other pending matters and reduce the time it takes for the Administrator's final order to issue in those cases where applicants/registrants choose not to challenge the proceeding or fail to properly participate in the proceeding.

To estimate the cost savings of this rule, DEA first estimates the amount of time and resources that would be saved for cases that would be resolved via entry of a default. The complexity of a given case would impact both how much time it would take to prepare the request for final agency action (FAA) and for the Administrator's Office to draft the final order based on that FAA request, which cumulatively would represent the amount of resources saved in a given case. For a case based solely on allegations related to a lack of state authority, or an exclusion from federal health care programs, the gathering of the evidence, including declarations, and preparation of the FAA motion take, on average, approximately 10-15 hours. For cases with allegations (most commonly, improper prescribing or filling of prescriptions), the preparation of the FAA materials is considerably longer—approximately 30-40 hours per case. It is estimated that of the cases in which there was neither a hearing request nor a registration surrender, roughly 30-40% are No State License (NSL) cases and 60-70% of cases would be considered other non-NSL cases. For the purpose of this analysis, DEA estimates that of the 41 cases this rule would impact on average each year, 65% would be considered non-NSL cases and take 35 hours to prepare a FAA for, while 35% would be considered NSL cases and take 13 hours to prepare a FAA for. Applying the loaded wage  6 for GS-15 Step 5 employees, 7 DEA estimates the cost savings of this rule for the time it would take to prepare the FAA request is around $134,065 per year. 8

Additionally, there are cost savings from the time it would take the Administrator's Office to draft the final order based on that FAA request. The cost savings for the Administrator's review process would be the most significant for all substantive cases that would be subject to the rule. The Administrator's review process consists of the time to review the FAA request, evaluate the evidence submitted by DEA counsel, draft a decision, and the time the Administrator must spend reviewing the proposed decision. On average, there are four substantive cases per year that would be subject to the rule. Currently, the estimated time it takes for the substantive cases is 30 days or 240 hours. With the rule promulgated, the estimated time it will take for these substantive cases will be between one day and two weeks depending on the complexity of the case. For the purpose of this analysis, DEA estimates it will take seven days or 56 hours with the rule promulgated. Using the loaded hourly wage of a GS-15 Step 5 employee, the estimated cost savings for substantive cases is $88,155 per year. 9 There is also cost savings for non-substantive cases, but DEA believes this cost savings to be minimal for the Administrator's review process. Also, while there is a difference in the legal definition of “deemed to have waived” versus “deemed to be in default,” there is no enhancement of potential sanctions. The Administrator will continue to issue the final order based on the same set of circumstances regarding the OSC and the default determination, versus the current “deemed to have waived” determination with the additional voluminous record provided. Therefore, the cost savings due to the Administrator's review process is estimated to be around $88,155 per year.

In summary, there are both costs and cost savings associated with this proposed rule. DEA has no basis to estimate the additional litigation costs for registrants who are “deemed to be in default” as a result of the proposed rule as compared to registrants who are “deemed to have waived” under the existing regulations, but believes this additional litigation cost to be minimal due to the small number of these cases occurring each year. The total cost to registrants due to the requirement that an applicant/registrant must file an answer to an OSC is $36,190 per year. This proposed rule has an estimated cost savings of $222,220 ($134,065 + $88,155) per year for DEA by streamlining the Administrator's review process using the default determination. The estimated net cost savings of this rule is $186,030 ($222,220 − $36,190) per year.

Therefore, DEA does not anticipate that this rulemaking will have an annual effect on the economy of $100 million or more or adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.

This proposed rule has been characterized as “Other” for purposes of E.O. 13771 because costs of this proposed rule have not finally been determined.

The proposed regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

This rulemaking does not have federalism implications warranting the application of Executive Order 13132. The rule does not have substantial direct effects on the States, on the relationship between the national government and the states, or the distribution of power and responsibilities among the various levels of government.

This proposed rule does not have substantial direct effects on the states, on the relationship between the national government and the states, or the distribution of power and responsibilities between the Federal Government and Indian tribes.

The Administrator, in accordance with the Regulatory Flexibility Act (5 U.S.C. 601-12) (RFA), has reviewed this rule and by approving it certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.

In accordance with the RFA, DEA evaluated the impact of this rule on small entities. The proposed rule would add provisions allowing the entry of a default where a party served with an OSC fails to request a hearing, fails to file an answer to the OSC, or otherwise fails to defend against the OSC. Cf. Fed. R. Civ. P. 55(a). The proposed rule provides that where a party defaults, the factual allegations of the OSC are deemed admitted. Further, the proposed rule would remove the current provisions allowing a recipient of an OSC to file a written statement while waiving his/her/its right to an administrative hearing. As all DEA registrants would be subject to the amended administrative enforcement procedures described in the notice of proposed rulemaking, the proposed rule could potentially affect any person holding or planning to hold a DEA registration to handle controlled substances and those manufactures, distributors, importers, and exporters of list I chemicals. As of March 2019, there were approximately 1.8 million DEA registrations for controlled substances and list I chemicals. Registrants include individual practitioners (such as physicians, dentists, mid-level practitioners, etc.), business entities (such as offices of physicians, pharmacies, hospitals, pharmaceutical manufacturers, distributors, importers, exporters, etc.), and governmental or tribal agencies that handle controlled substances or list I chemicals.

In practice, a very small minority of DEA registrants are served with OSCs in connection with the denial or cancellation of registration, and thus a very small minority of DEA registrants would be impacted by the proposed rule. Over the three-year period 2016-2018, there was an average of 81 OSCs served per year. These 81 OSCs fall into one of three categories: (1) An average of 29 cases in which the registrant/applicant surrendered the registration and/or withdrew his/her/its application, thus mooting the case, (2) an average of 11 cases in which the registrant/applicant properly requested a hearing, and (3) the remaining 41 registrants per year who failed to timely file a request for a hearing and were deemed to have waived their right to a hearing (and would be in default under the proposed rule). The 11 registrants per year who properly requested a hearing are estimated to incur costs while the registrants in the remaining two categories do not.

The proposed rule requires that an applicant/registrant must file an answer responding to every allegation in the OSC. The average of 29 cases in which the registrant/applicant surrenders or withdraws his/her/its application, thus mooting the case, would not result in the registrant/applicant filing an answer to the allegations in the OSC. Therefore, these registrants/applicants would not incur any costs. The average of 11 cases per year where a registrant/applicant requests a hearing may incur a cost associated with answering the allegation(s) of the OSC. To estimate the cost of this proposed change, DEA estimates that, on average, it will take five hours for a registrant/applicant's attorney to review the OSC and prepare an answer to all allegations, or an average of $3,290 per registrant. 10

The remaining 41 cases, where there was neither a registration surrendered nor a hearing conducted, would be differently impacted by this proposed rule. The proposed rule provides that where a party defaults, the factual allegations of the OSC are deemed admitted. This proposed rule would also provide that a default may only be set aside upon a party establishing good cause to excuse its default. DEA has no basis to estimate the number of affected parties who will seek to establish good cause to set aside a default and any costs associated with such activities. However, under Kamir Garces Mejias, 72 FR 54931 (2007), a party seeking to be excused from an ALJ order terminating a proceeding for failing to comply with the ALJ's orders is required to show good cause to excuse its default. Thus, because this proposed requirement of the rule simply codifies case law, it imposes no additional cost to registrants.

In summary, it is estimated that there will be an average of 11 cases per year, in which the registrant/applicant properly requests a hearing and will incur an economic impact of $3,290 if this proposed rule is promulgated. Because the subject of the 11 cases can be an individual or entity ( i.e., offices of physicians, pharmacies, hospitals, pharmaceutical manufacturers, distributors, importers, exporters, governmental or tribal agencies, etc.), DEA compared the estimated cost of $3,290 to the average revenue of the smallest entities for some representative North American Industry Classification System (NAICS) codes for DEA registrants using data from U.S. Census Bureau, Statistics of U.S. Businesses (SUSB).

For example, there are a total of 174,901 entities in NAICS code, 621111—Office of Physicians (Except Mental Health Specialists). Of the 174,901 total entities, DEA estimates that 97.6% are small entities. DEA compared the estimated cost of $3,290 to the revenue of the smallest of small entities, those with 0-4 employees. There are 95,494 entities in the 0-4 employee category with a combined total annual revenue of $42,823,012,000, or an average of $448,000 per entity (rounded to nearest thousand). 11 The estimated cost of $3,290 is 0.73% the average annual revenue of $448,000. The same analysis was conducted for each representative NAICS code. The cost as percent of average revenue for the smallest of small entities ranges from 0.24% to 1.30%. The table below summarizes the analysis and results.

The Coast Guard is issuing this Notice of Inquiry (NOI) to solicit comments from industry, the maritime community, local stakeholders and other interested persons regarding potential multiple changes to anchorages along the Lower Mississippi River (LMR). The Coast Guard was approached by industry, who identified multiple locations along the LMR where an anchorage could potentially be established, expanded or revised in order to accommodate the increasing vessel traffic along the Lower Mississippi River. The authority for the Coast Guard to establish or amend anchorage ground regulations is found in 33 U.S.C. 471 and Department of Homeland Security Delegation No. 0170.1. The requesting document is available in the docket.

There are currently 12 established anchorage grounds along the Lower Mississippi River between MM 12 AHP and MM 85 AHP that total of 33.54 statute miles of approved anchorage area, longitudinally along the Lower Mississippi River. The potential changes would add an additional 3.75 statute miles of longitudinal anchorage area. Those additions are broken into the following: 2.65 miles of space would be added to current anchorage grounds and 1.1 miles would be created in two new anchorage grounds locations.

At this time, the potential changes to these anchorage grounds would not affect the width of the previously established anchorage grounds, only the overall length of the anchorages. Current anchorage widths within this area of the Mississippi River from MM12-MM85 range from 400′ to 800′. The anchorage grounds widths are listed in the table below for reference purposes.

The current anchorages regulations for this area of the LMR can be found in 33 CFR 110.195. The recommended changes are listed in ascending mile-marker order as follows:

We seek your comments on whether we should consider modifying the anchorage grounds regulations covering MM 12 AHP to MM 85 AHP based on this report, and if so, how. In particular, the Coast Guard requests your input to determine if there remains a need for additional anchorage grounds in this area, and if so, to what extent and for what purpose; if the establishment of two additional anchorage grounds and the recommended changes to expand currently regulated anchorage grounds would meet current and anticipated industry needs; or if other options should be considered.

We encourage you to submit comments through the Federal portal at https://www.regulations.gov. If your material cannot be submitted using https://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions. In your submission, please include the docket number for this notice of inquiry and provide a reason for each suggestion or recommendation.

We accept anonymous comments. All comments received will be posted without change to https://www.regulations.gov and will include any personal information you have provided. For more about privacy and submissions in response to this document, see DHS's rulemaking System of Records notice (85 FR 14226, March 11, 2020).

Documents mentioned in this notice of inquiry as being available in the docket, and all public comments, will be in our online docket at https://www.regulations.gov and can be viewed by following that website's instructions.

This document is issued under authority of 5 U.S.C. 552(a).

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

Whenever EPA promulgates a new or revised NAAQS, CAA section 110(a)(1) requires states to make SIP submissions to provide for the implementation, maintenance, and enforcement of the NAAQS. This 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. Due to ambiguity in some of the language of CAA section 110(a)(2), EPA believes that it is appropriate to interpret these provisions in the specific context of acting on infrastructure SIP submissions. EPA has previously provided comprehensive guidance on the application of these provisions through our September 13, 2013 Infrastructure SIP Guidance and through regional actions on infrastructure submissions (EPA's 2013 Guidance). 1 Unless otherwise noted below, we are following that existing approach in acting on this submission. In addition, in the context of acting on such infrastructure submissions, EPA evaluates the submitting state's SIP for facial compliance with statutory and regulatory requirements, not for the state's implementation of its SIP. 2 EPA has other authority to address any issues concerning a state's implementation of the rules, regulations, consent orders, etc. that comprise its SIP.

Wisconsin provided a detailed synopsis of how various components of its SIP meet each of the applicable requirements in section 110(a)(2) for the 2015 ozone NAAQS, as applicable. The following review evaluates the State's submission.

This section requires SIPs to include enforceable emission limits and other control measures, means or techniques, schedules for compliance, and other related matters. EPA has long interpreted emission limits and control measures for attaining the standards as being due when nonattainment planning requirements are due. 3 In the context of an infrastructure SIP, EPA is not evaluating the existing SIP provisions for this purpose. Instead, EPA is only evaluating whether the state's SIP has basic structural provisions for the implementation of the NAAQS.

Under Wisconsin Statutes ( Wis. Stats. ) 227 and 285, the Wisconsin Department of Natural Resources (WDNR) holds the authority to create new rules and implement existing emission limits and controls. Authority to monitor, update, and implement revisions to Wisconsin's SIP, including revisions to emission limits and control measures as necessary to meet NAAQS, is contained in Wis. Stats. 285.11-285.19. Authority related to specific pollutants, including the establishment of ambient air quality standards and increments, identification of nonattainment areas, air resource allocations, and performance and emissions standards, is contained in Wis. Stats. 285.21-285.29.

Specifically, authority for WDNR to create new rules and regulations is found in Wis. Stats. 227.11, 285.11, 285.17, and 285.21. Wis. Stats. 227.11(2) expressly confers rulemaking authority to an agency. Wis. Stats. 285.11(1) and (6) require that WDNR promulgate rules and establish control strategies in order to prepare and implement the SIP for the prevention, abatement, and control of air pollution in Wisconsin. Wis. Stats. 285.17(1) requires WDNR to classify sources or categories of sources that may cause or contribute to air pollution, and Wis. Stats. 285.21(1) requires that WDNR promulgate ambient air quality standards that are similar to the NAAQS.

EPA's 2013 Guidance states that to satisfy section 110(a)(2)(A) requirements, “an air agency's submission should identify existing EPA-approved SIP provisions or new SIP provisions that the air agency has adopted and submitted for EPA approval that limit emissions of pollutants relevant to the subject NAAQS, including precursors of the relevant NAAQS pollutant where applicable.” WDNR identified existing controls and emission limits in the Wisconsin Administrative Code that can be applied to the 2015 ozone NAAQS. These regulations include controls and emission limits for volatile organic compounds (VOC) and nitrogen oxides (NO X ), which are precursors to ozone. VOC as an ozone precursor is regulated by Wisconsin Administrative Code Chapters Natural Resources (NR) 419-425, and NO X as an ozone precursor is regulated by NR 428.

In this rulemaking, EPA is not proposing to approve any new provisions in NR 419-425 or NR 428. EPA is also not proposing to approve or disapprove any existing state provisions or rules related to start-up, shutdown or malfunction or director's discretion in the context of section 110(a)(2)(A). EPA proposes that Wisconsin has met the infrastructure SIP requirements of section 110(a)(2)(A) with respect to the 2015 ozone NAAQS.

This section requires SIPs to provide for establishing and operating ambient air quality monitors, collecting and analyzing ambient air quality data, and, upon request, make these data available to EPA. EPA's review of a state's annual monitoring plan includes EPA's determination that the state: (i) Monitors air quality at appropriate locations throughout the state using EPA-approved Federal Reference Methods or Federal Equivalent Method monitors; (ii) submits data to EPA's Air Quality System (AQS) in a timely manner; and, (iii) provides EPA Regional Offices with prior notification of any planned changes to monitoring sites or the network plan.

In accordance with 40 CFR part 53 and 40 CFR part 58, WDNR continues to operate an air monitoring network that is used to determine compliance with the NAAQS. WDNR enters air monitoring data into AQS and provides EPA with prior notification when changes to its monitoring network or plan are being considered. Further, WDNR submits annual monitoring network plans to EPA. On October 2, 2019, EPA approved the State's 2020 Annual Air Monitoring Network Plan, including the plan for ozone. EPA proposes that Wisconsin has met the infrastructure SIP requirements of section 110(a)(2)(B) with respect to the 2015 ozone NAAQS.

This section requires SIPs to set forth a program providing for enforcement of all SIP measures, and the regulation of construction of new and modified stationary sources to meet New Source Review (NSR) requirements under Prevention of Significant Deterioration (PSD) and Nonattainment NSR (NNSR) programs. Part C of the CAA (sections 160-169B) addresses PSD, while part D of the CAA (sections 171-193) addresses NNSR requirements. EPA's 2013 Guidance states that the NNSR requirements of section 110(a)(2)(C) are generally outside the scope of infrastructure SIPs; however, a state must provide for regulation of minor sources and minor modifications (minor NSR).

A state's infrastructure SIP submission should identify the statutes, regulations, or other provisions in the SIP that provide for enforcement of emission limits and control measures.

WDNR maintains an enforcement program to ensure compliance with SIP requirements. The Bureau of Air Management houses an active statewide compliance and enforcement team that works in all geographic regions of the State. WDNR refers actions as necessary to the Wisconsin Department of Justice with the involvement of WDNR. Wis. Stats. 285.83 and Wis. Stats. 285.87 provide WDNR with the authority to enforce violations and assess penalties, to ensure that required measures are ultimately implemented. EPA proposes that Wisconsin has met the enforcement of SIP measures requirements of section 110(a)(2)(C) with respect to the 2015 ozone NAAQS.

An infrastructure SIP submission should identify the existing EPA-approved SIP provisions that govern the minor source pre-construction program that regulates emissions of the relevant NAAQS pollutant.

EPA approved Wisconsin's minor NSR program on January 18, 1995 (60 FR 3543); since that date, WDNR and EPA have relied on the existing minor NSR program to ensure that new and modified sources not captured by the major NSR permitting programs do not interfere with attainment and maintenance of the NAAQS. As stated in EPA's 2013 Guidance, the CAA allows EPA to approve infrastructure SIP submissions that do not implement the 2002 NSR Reform Rules. Therefore, EPA is not proposing action on existing NSR Reform regulations for Wisconsin. EPA proposes that Wisconsin has met the minor NSR requirements of section 110(a)(2)(C) with respect to the 2015 ozone NAAQS.

The evaluation of each state's submission addressing the PSD requirements of section 110(a)(2)(C) covers: (i) PSD provisions that explicitly identify NO X as a precursor to ozone in the PSD program; (ii) identification of precursors to PM 2.5   4 and the identification of PM 2.5 and PM 10   5 condensables in the PSD program; (iii) PM 2.5 increments in the PSD program; and (iv) greenhouse gas (GHG) permitting and the “Tailoring Rule” in the PSD program. 6

Some PSD requirements under section 110(a)(2)(C) overlap with elements of section 110(a)(2)(D)(i), section 110(a)(2)(E), and section 110(a)(2)(J). These links are discussed in the appropriate areas below.

EPA's “Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standard—Phase 2; Final Rule to Implement Certain Aspects of the 1990 Amendments Relating to New Source Review and Prevention of Significant Deterioration as They Apply in Carbon Monoxide, Particulate Matter, and Ozone NAAQS; Final Rule for Reformulated Gasoline” (Phase 2 Rule) was published on November 29, 2005 (70 FR 71612). Among other requirements, the Phase 2 Rule obligated states to revise their PSD programs to explicitly identify NO X as a precursor to ozone (70 FR 71612 at 71679, 71699-71700). This requirement was codified in 40 CFR 51.166. 7

The Phase 2 Rule required that states submit SIP revisions incorporating the requirements of the rule, including provisions specifically identifying NO X as a precursor to ozone, by June 15, 2007 ( see 70 FR 71612 at 71683, November 29, 2005).

EPA approved revisions to Wisconsin's PSD SIP reflecting these requirements on February 7, 2017 (82 FR 9515), and therefore proposes that Wisconsin has met this set of infrastructure SIP requirements of section 110(a)(2)(C) with respect to the 2015 ozone NAAQS.

On May 16, 2008 (73 FR 28321), EPA issued the Final Rule on the “Implementation of the New Source Review (NSR) Program for Particulate Matter Less than 2.5 Micrometers (PM 2.5 )” (2008 NSR Rule). The 2008 NSR Rule finalized several new requirements for SIPs to address sources that emit direct PM 2.5 and other pollutants that contribute to secondary PM 2.5 formation. One of these requirements is for NSR permits to address pollutants responsible for the secondary formation of PM 2.5, otherwise known as precursors. In the 2008 rule, EPA identified precursors to PM 2.5 for the PSD program to be sulfur dioxide (SO 2 ) and NO X (unless the state demonstrates to the Administrator's satisfaction or EPA demonstrates that NO X emissions in an area are not a significant contributor to that area's ambient PM 2.5 concentrations). The 2008 NSR Rule also specifies that VOCs are not considered to be precursors to PM 2.5 in the PSD program unless the state demonstrates to the Administrator's satisfaction or EPA demonstrates that emissions of VOCs in an area are significant contributors to that area's ambient PM 2.5 concentrations.

The explicit references to SO 2, NO X , and VOCs as they pertain to secondary PM 2.5 formation are codified at 40 CFR 51.166(b)(49)(i)( b ) and 40 CFR 52.21(b)(50)(i)( b ). As part of identifying pollutants that are precursors to PM 2.5, the 2008 NSR Rule also required states to revise the definition of “significant” as it relates to a net emissions increase or the potential of a source to emit pollutants. Specifically, 40 CFR 51.166(b)(23)(i) and 40 CFR 52.21(b)(23)(i) define “significant” for PM 2.5 to mean the following emissions rates: 10 tons per year (tpy) of direct PM 2.5 ; 40 tpy of SO 2 ; and 40 tpy of NO X (unless the state demonstrates to the Administrator's satisfaction or EPA demonstrates that NO X emissions in an area are not a significant contributor to that area's ambient PM 2.5 concentrations). The deadline for states to submit SIP revisions to their PSD programs incorporating these changes was May 16, 2011 ( see 73 FR 28321 at 28341, May 16, 2008). 8

The 2008 NSR Rule did not require states to immediately account for gases that could condense to form particulate matter, known as condensables, in PM 2.5 and PM 10 emission limits in NSR permits. Instead, EPA determined that states had to account for PM 2.5 and PM 10 condensables for applicability determinations and in establishing emissions limitations for PM 2.5 and PM 10 in PSD permits beginning on or after January 1, 2011. This requirement is codified in 40 CFR 51.166(b)(49)(i)( a ) and 40 CFR 52.21(b)(50)(i)( a ). Revisions to states' PSD programs incorporating the inclusion of condensables were due to EPA by May 16, 2011 ( see 73 FR 28321 at 28341, May 16, 2008).

EPA approved revisions to Wisconsin's PSD SIP reflecting these requirements on October 16, 2014 (79 FR 62008), and therefore proposes that Wisconsin has met this set of infrastructure SIP requirements of section 110(a)(2)(C) with respect to the 2015 ozone NAAQS.

On October 20, 2010, EPA issued the final rule on the “Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM 2.5 )—Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC)” (2010 NSR Rule). This rule established several components for making PSD permitting determinations for PM 2.5 , including a system of “increments” which is the mechanism used to estimate significant deterioration of ambient air quality for a pollutant. These increments are codified in 40 CFR 51.166(c) and 40 CFR 52.21(c), and are included in the table below.

The 2010 NSR Rule also established a new “major source baseline date” for PM 2.5 as October 20, 2010, and a new trigger date for PM 2.5 as October 20, 2011. These revisions are codified in 40 CFR 51.166(b)(14)(i)( c ) and (b)(14)(ii)( c ), and 40 CFR 52.21(b)(14)(i)( c ) and (b)(14)(ii)( c ). Lastly, the 2010 NSR Rule revised the definition of “baseline area” to include a level of significance of 0.3 micrograms per cubic meter, annual average, for PM 2.5. This change is codified in 40 CFR 51.166(b)(15)(i) and 40 CFR 52.21(b)(15)(i).

EPA approved revisions to Wisconsin's PSD SIP reflecting these requirements on February 7, 2017 (82 FR 9515), and therefore proposes that Wisconsin has met this set of infrastructure SIP requirements of section 110(a)(2)(C) with respect to the 2015 ozone NAAQS.

With respect to the requirements of section 110(a)(2)(C) as well as section 110(a)(2)(J), EPA interprets the CAA to require each state to make an infrastructure SIP submission for a new or revised NAAQS that demonstrates that the air agency has a complete PSD permitting program meeting the current requirements for all regulated NSR pollutants. The requirements of section 110(a)(2)(D)(i)(II) may also be satisfied by demonstrating that the air agency has a complete PSD permitting program correctly addressing all regulated NSR pollutants. Wisconsin has shown that it currently has a PSD program in place that covers all regulated NSR pollutants, including greenhouse gases (GHGs).

On June 23, 2014, the United States Supreme Court issued a decision addressing the application of PSD permitting requirements to GHG emissions. Utility Air Regulatory Group v. Environmental Protection Agency, 134 S.Ct. 2427. The Supreme Court said that EPA may not treat GHGs as an air pollutant for purposes of determining whether a source is a major source required to obtain a PSD permit. The Court also said that EPA could continue to require that PSD permits, otherwise required based on emissions of pollutants other than GHGs, contain limitations on GHG emissions based on the application of Best Available Control Technology (BACT).

In accordance with the Court's decision, on April 10, 2015, the U.S. Court of Appeals for the District of Columbia Circuit (the D.C. Circuit) issued an amended judgment vacating the regulations that implemented Step 2 of the EPA's PSD and Title V Greenhouse Gas Tailoring Rule, but not the regulations that implement Step 1 of that rule. Step 1 of the Tailoring Rule covers sources that are required to obtain a PSD permit based on emissions of pollutants other than GHGs. Step 2 applied to sources that emitted only GHGs above the thresholds triggering the requirement to obtain a PSD permit. The amended judgment preserves, without the need for additional rulemaking by the EPA, the application of the BACT requirement to GHG emissions from Step 1 or “anyway” sources. With respect to Step 2 sources, the D.C. Circuit's amended judgment vacated the regulations at issue in the litigation, including 40 CFR 51.166(b)(48)(v), “to the extent they require a stationary source to obtain a PSD permit if greenhouse gases are the only pollutant (i) that the source emits or has the potential to emit above the applicable major source thresholds, or (ii) for which there is a significant emission increase from a modification.”

EPA is planning to take additional steps to revise Federal PSD rules in light of the Supreme Court's opinion and subsequent D.C. Circuit's ruling. Some states have begun to revise their existing SIP-approved PSD programs in light of these court decisions, and some states may prefer not to initiate this process until they have more information about the planned revisions to EPA's PSD regulations. EPA is not expecting states to have revised their PSD programs in anticipation of EPA's planned actions to revise its PSD program rules in response to the court decisions. For purposes of infrastructure SIP submissions, EPA is only evaluating such submissions to assure that the state's program addresses GHGs consistent with both court decisions.

At present, EPA has determined the Wisconsin SIP is sufficient to satisfy the requirements of section 110(a)(2)(C), section 110(a)(2)(D)(i)(II), and section 110(a)(2)(J) with respect to GHGs. This is because the PSD permitting program previously approved by EPA into the SIP continues to require that PSD permits issued to “anyway” sources contain limitations on GHG emissions based on the application of BACT. On August 1, 2018, EPA updated the Wisconsin SIP to include revised PSD rules to reflect both courts' decisions, and preserving PSD permitting requirements for GHGs for “anyway” sources (83 FR 37434).

Section 110(a)(2)(D)(i)(I) requires SIPs to include provisions prohibiting any source or other type of emissions activity in one state from contributing significantly to nonattainment, or interfering with maintenance, of the NAAQS in another state. Section 110(a)(2)(D)(i)(II) requires SIPs to include provisions prohibiting any source or other type of emissions activity in one state from interfering with measures required of any other state to prevent significant deterioration of air quality, or from interfering with measures required of any other state to protect visibility. Section 110(a)(2)(D)(ii) requires each SIP to contain adequate provisions requiring compliance with the applicable requirements of CAA section 126 and section 115 (relating to interstate and international pollution abatement, respectively).

In this rulemaking, EPA is not evaluating section 110(a)(2)(D)(i)(I) requirements relating to significant contribution to nonattainment for the 2015 ozone NAAQS. Instead, EPA will evaluate these requirements in a separate rulemaking.

In this rulemaking, EPA is not evaluating section 110(a)(2)(D)(i)(I) requirements relating to interference with maintenance for the 2015 ozone NAAQS. Instead, EPA will evaluate these requirements in a separate rulemaking.

EPA notes that Wisconsin's satisfaction of the applicable infrastructure SIP PSD requirements for the 2015 ozone NAAQS has been detailed in the section addressing section 110(a)(2)(C). EPA further notes that the proposed actions in that section related to PSD are consistent with the proposed actions related to PSD for section 110(a)(2)(D)(i)(II), and they are reiterated below.

EPA has previously approved revisions to Wisconsin's SIP that meet certain requirements obligated by the Phase 2 Rule and the 2008 NSR Rule. These revisions included provisions that: Explicitly identify NO X as a precursor to ozone, explicitly identify SO 2 and NO X as precursors to PM 2.5 , and regulate condensable PM 2.5 and PM 10 in applicability determinations and for purposes of establishing emission limits. EPA has also previously approved revisions to Wisconsin's SIP that incorporate the PM 2.5 increments and the associated implementation regulations including the major source baseline date, trigger date, and level of significance for PM 2.5 per the 2010 NSR Rule. EPA is proposing that Wisconsin's SIP contains provisions that adequately address the 2015 ozone NAAQS.

States also have an obligation to ensure that sources located in nonattainment areas do not interfere with a neighboring state's PSD program. One way that this requirement can be satisfied is through an NNSR program consistent with the CAA that addresses any pollutants for which there is a designated nonattainment area within the state.

Wisconsin's SIP-approved NNSR regulations, specifically in chapter NR 408 of the Wisconsin Administrative Code, are consistent with 40 CFR 51.165, or 40 CFR part 51, appendix S. Therefore, EPA proposes that Wisconsin has met all of the applicable section 110(a)(2)(D)(i)(II) requirements relating to interference with PSD for the 2015 ozone NAAQS.

Under the applicable requirements for visibility protection of section 110(a)(2)(D)(i)(II), states are subject to visibility and regional haze program requirements under part C of the CAA (which includes sections 169A and 169B). EPA's 2013 Guidance states that these requirements can be satisfied by an approved SIP addressing reasonably attributable visibility impairment, if required, or an approved SIP addressing regional haze.

On August 7, 2012, EPA published its final approval of Wisconsin's regional haze plan (77 FR 46952). Therefore, EPA proposes that Wisconsin has met all the applicable section 110(a)(2)(D)(i)(II) requirements relating to interference with visibility protection for the 2015 ozone NAAQS.

Section 110(a)(2)(D)(ii) requires each SIP to contain adequate provisions requiring compliance with the applicable requirements of section 126 and section 115 (relating to interstate and international pollution abatement, respectively).

Section 126(a) requires new or modified sources to notify neighboring states of potential impacts from the source. The statute does not specify the method by which the source should provide the notification. States with SIP-approved PSD programs must have a provision requiring such notification by new or modified sources. A lack of such a requirement in state rules would be grounds for disapproval of this element.

Wisconsin's EPA-approved portion of its PSD program contains provisions requiring new or modified sources to notify neighboring states of potential negative air quality impacts. Wisconsin's submission references these provisions as being adequate to meet the requirements of section 126(a). Wisconsin has no pending obligations under section 115, and no sources in Wisconsin are the subject of an active finding under section 126. Therefore, EPA proposes that Wisconsin has met all the applicable section 110(a)(2)(D)(ii) requirements for the 2015 ozone NAAQS.

This section requires each state to provide for adequate personnel, funding, and legal authority under state law to carry out its SIP and related issues. Section 110(a)(2)(E)(ii) also requires each state to comply with the requirements respecting state boards under section 128.

To satisfy the adequate resources requirements of section 110(a)(2)(E), the state must provide assurances that its air agency has adequate resources, personnel, and legal authority to implement the relevant NAAQS.

Wisconsin's biennial budget ensures that EPA grant funds as well as state funding appropriations are sufficient to administer its air quality management program, and WDNR has routinely demonstrated that it retains adequate personnel to administer its air quality management program. Wisconsin's Environmental Performance Partnership Agreement with EPA documents certain funding and personnel levels at WDNR. As discussed in previous sections, basic duties and authorities in the State are outlined in Wis. Stats. 285.11. EPA proposes that Wisconsin has met the infrastructure SIP requirements of this portion of section 110(a)(2)(E) with respect to the 2015 ozone, NAAQS.

Section 110(a)(2)(E) also requires each SIP to set forth provisions that comply with the state board 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 this chapter 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 and enforcement orders under this chapter, 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 July 2, 2015, WDNR submitted rules from Wis. Stats. for incorporation into the SIP, pursuant to section 128 of the CAA. Under Wis. Stats. 15.05, the administrative powers and duties of the WDNR, including issuance of permits and enforcement orders, are vested in the Secretary. Therefore, Wisconsin has no further obligations under section 128(a)(1) of the CAA.

Under section 128(a)(2) of the CAA, the head of the executive agency with the power to approve permits or enforcement orders must adequately disclose any potential conflicts of interest. In Wisconsin, this power is vested in the Secretary of the WDNR. Wis. Stats. 19.45(2) prevents financial gain of any public official, which addresses the issue of deriving any significant portion of income from persons subject to permits and enforcement orders. Additionally, Wis. Stats. 19.46 prevents a public official from taking actions where there is a conflict of interest. As a public official under Wis. Stats. 19, the Secretary of the WDNR is subject to these ethical obligations. EPA concludes that WDNR's submission as it relates to the state board requirements under section 128 is consistent with applicable CAA requirements. EPA approved these rules on January 21, 2016 (81 FR 3334). Therefore, EPA is proposing that Wisconsin has satisfied the applicable infrastructure SIP requirements for this section of 110(a)(2)(E) for the 2015 ozone NAAQS.

In this rulemaking, EPA is not evaluating section 110(a)(2)(F) requirements relating to stationary source monitoring for the 2015 ozone NAAQS. Instead, EPA will evaluate these requirements in a separate rulemaking.

This section requires that a plan provide for authority that is analogous to what is provided in section 303 of the CAA, and adequate contingency plans to implement such authority. EPA's 2013 Guidance states that infrastructure SIP submissions should specify authority, vested in an appropriate official, to restrain any source from causing or contributing to emissions which present an imminent and substantial endangerment to public health or welfare, or the environment.

Wis. Stats. 285.85 provides the requirement for WDNR to act upon a finding that an emergency episode or condition exists. The language contained in this chapter authorizes WDNR to seek immediate injunctive relief in circumstances of substantial danger to the environment or to public health. EPA proposes that Wisconsin has met the applicable infrastructure SIP requirements for this portion of section 110(a)(2)(G) with respect to the 2015 ozone NAAQS.

This section requires states to have the authority to revise their SIPs in response to changes in the NAAQS, to the availability of improved methods for attaining the NAAQS, or to an EPA finding that the SIP is substantially inadequate.

Wis. Stats. 285.11(6) provides WDNR with the authority to develop all rules, limits, and regulations necessary to meet the NAAQS as they evolve, and to respond to any EPA finding of inadequacy for the overall Wisconsin SIP and air management programs. EPA proposes that Wisconsin has met the infrastructure SIP requirements of section 110(a)(2)(H) with respect to the 2015 ozone NAAQS.

The CAA requires that each plan or plan revision for an area designated as a nonattainment area meet the applicable requirements of part D of the CAA. Part D relates to nonattainment areas.

EPA has determined that section 110(a)(2)(I) is not applicable to the infrastructure SIP process. Instead, EPA will action on part D attainment plans through separate processes.

The evaluation of the submissions from Wisconsin with respect to the requirements of section 110(a)(2)(J) are described below.

States must provide a process for consultation with local governments and Federal Land Managers (FLMs) carrying out NAAQS implementation requirements.

Wis. Stats. 285.13(5) contains the provisions for WDNR to advise, consult, contract, and cooperate with other agencies of the state and local governments, industries, other states, interstate or inter-local agencies, the Federal government, and interested persons or groups during the entire process of SIP revision development and implementation and for other elements regarding air management for which WDNR is the officially charged agency. WDNR's Bureau of Air Management has effectively used formal stakeholder structures in the development and refinement of all SIP revisions. Additionally, Wisconsin is an active member of the Lake Michigan Air Directors Consortium (LADCO), which provides technical assessments and a forum for discussion regarding air quality issues to member states. EPA proposes that Wisconsin has satisfied the infrastructure SIP requirements of this portion of section 110(a)(2)(J) with respect to the 2015 ozone NAAQS.

Section 110(a)(2)(J) also requires states 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.

WDNR maintains portions of its website specifically for issues related to the 2015 ozone NAAQS. 9 Public notification is provided through this website, and through a contracted email subscription service known as “GovDelivery.” Information related to monitoring sites is also found on Wisconsin's website, as is the calendar for all public events and public hearings held in the State. EPA proposes that Wisconsin has met the infrastructure SIP requirements of this portion of section 110(a)(2)(J) with respect to the 2015 ozone NAAQS.

States must meet applicable requirements of section 110(a)(2)(C) related to PSD. Wisconsin's PSD program in the context of infrastructure SIPs has already been discussed above in the paragraphs addressing section 110(a)(2)(C) and section 110(a)(2)(D)(i)(II), and EPA notes that the proposed actions for those sections are consistent with the proposed actions for this portion of section 110(a)(2)(J).

Therefore, EPA proposes that Wisconsin has met all the infrastructure SIP requirements for PSD associated with section 110(a)(2)(D)(J) for the 2015 ozone NAAQS.

States are subject to visibility and regional haze program requirements under part C of the CAA (which includes sections 169A and 169B). 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 is no new visibility obligation “triggered” under section 110(a)(2)(J) when a new NAAQS becomes effective. In other words, the visibility protection requirements of section 110(a)(2)(J) are not germane to infrastructure SIPs for the 2015 ozone NAAQS.

SIPs must provide for performance of air quality modeling to predict the effects on air quality from emissions of any NAAQS pollutant and the submission of such data to EPA upon request.

WDNR maintains the capability of performing computer modeling of the air quality impacts of emissions of all criteria pollutants, including both source-oriented and more regionally directed complex photochemical grid models. WDNR collaborates with LADCO, EPA, and other Lake Michigan states in performing modeling. Wis. Stats. 285.11, Wis. Stats. 285.13, and Wis. Stats. 285.60-285.69 authorize WDNR to perform modeling. EPA proposes that Wisconsin has met the infrastructure SIP requirements of section 110(a)(2)(K) with respect to the 2015 ozone NAAQS.

This section requires SIPs to mandate each major stationary source to pay permitting fees to cover the cost of reviewing, approving, implementing, and enforcing a permit.

WDNR implements and operates the title V permit program, which EPA approved on December 4, 2001 (66 FR 62951). EPA approved revisions to the program on February 28, 2006 (71 FR 9934). NR 410 contains the provisions, requirements, and structures associated with the costs for reviewing, approving, implementing, and enforcing various types of permits. EPA proposes that Wisconsin has met the infrastructure SIP requirements of section 110(a)(2)(L) for the 2015 ozone NAAQS.

States must consult with and allow participation from local political subdivisions affected by the SIP.

In addition to the measures outlined in the paragraph addressing WDNR's submittals regarding consultation requirements of section 110(a)(2)(J), as contained in Wis. Stats. 285.13(5), the State follows a formal public hearing process in the development and adoption of all SIP revisions that entail new or revised control programs or strategies and targets. For SIP revisions covering more than one source, WDNR is required to provide the standing committees of the state legislature with jurisdiction over environmental matters with a 60-day review period to ensure that local entities have been properly engaged in the development process. EPA proposes that Wisconsin has met the infrastructure SIP requirements of section 110(a)(2)(M) with respect to the 2015 ozone NAAQS.

EPA is proposing to approve most elements of a submission from Wisconsin certifying that its current SIP is sufficient to meet the required infrastructure elements under section 110(a)(1) and (2) for the 2015 ozone NAAQS.

EPA's proposed actions for the State's satisfaction of infrastructure SIP requirements pursuant to section 110(a)(2) and NAAQS are contained in the table below.

In the above table, the key is as follows:

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

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

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

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

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

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

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

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

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

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

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

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

Registration: Individuals planning to participate in the online public meeting must register at this website www.epa.gov/dwsixyearreview/public-meeting-revisions-microbial-and-disinfection-products-rules no later than October 12, 2020. EPA will do its best to include all those interested, however, may need to limit attendance due to web conferencing size limitations and, therefore, urges potential attendees to register early. Please check the MDBP website for event materials as they become available, including a full meeting agenda and other meeting materials. Web conferencing meeting details will be emailed to registered participants in advance of the meeting. If you have any difficulty registering or have additional questions or comments about the public meeting, please email ( MDBPRevisions@epa.gov ).

Special Accommodations: For information on access or accommodations for individuals with disabilities, please contact Ashley Greene at (202) 566-1738 or by email at greene.ashley@epa.gov. Please allow at least five business days prior to the meeting to give EPA time to process your request.

Online Meeting: This online meeting will be open to the public and EPA encourages input and will provide opportunities for public engagement. Additionally, the public will have the opportunity to provide written public input. If you are unable to participate in the meetings, you will be able to submit comments at www.regulations.gov, Docket ID No. EPA-HQ-OW-2020-0486. Meeting attendees are also encouraged to send written statements to the public docket, as well as any scientific data they would like EPA to consider during its analysis of potential regulatory revisions. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or withdrawn. 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 written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments outside of the primary submission ( i.e., on the web, cloud, ot 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 http://www2.epa.gov/dockets/commenting-epa-dockets.

The Microbial and Disinfection Byproduct (MDBP) Rules: MDBP rules are a series of interrelated regulations that address risks from microbial pathogens and disinfectants/disinfection byproducts in drinking water. The purpose of the Surface Water Treatment Rules (SWTRs) within the scope of the potential regulatory revisions, including the Surface Water Treatment Rule (40 CFR 141.70-141.75; June 5, 1989), Interim Enhanced Surface Water Treatment Rule (40 CFR 141.170-141.175; December 16, 1998), and Long Term 1 Enhanced Surface Water Treatment Rule (40 CFR 141.500-141.571; January 5, 2002), are to reduce disease incidence associated with pathogens, including Cryptosporidium, Giardia lamblia, Legionella, and viruses in drinking water. The SWTRs require PWS to filter and disinfect surface water sources to provide protection from microbial pathogens. The purpose of the Stage 1 and Stage 2 Disinfectants and Disinfection Byproducts Rules (63 FR 69390; December 16, 1998 and 71 FR 388; January 3, 2006, respectively) are to reduce drinking water exposure to disinfection byproducts which can form in water when disinfectants used to control microbial pathogens react with naturally occurring materials found in source water. If consumed in excess of EPA's standard over many years, disinfection byproducts may increase health risks. On January 11, 2017 (82 FR 3518; January 11, 2017) EPA identified these MDBP rules as candidates for revision in the Agency's review of existing national primary drinking water regulations.

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).

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 http://www.epa.gov/dockets/comments.html.

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, the Agency 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 pesticides 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 174 and/or part 180 for residues of pesticide chemicals in or on various food commodities. The Agency 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 supports 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 pesticides in or on food commodities. Further information on the petition may be obtained through the petition summary referenced in this unit.

1. PP 0E8825. (EPA-HQ-OPP-2020-0228). Interregional Research Project Number 4 (IR-4), Rutgers, The State University of New Jersey, 500 College Road East, Suite 201 W, Princeton, NJ 08540 requests to amend 40 CFR 180 by removing established tolerances for residues of Fluxapyroxad, (BAS 700 F); 3-(difluoromethyl)-1-methyl-N-(3′,4′,5′-trifluoro[1,1′-biphenyl]-2-yl)-1H-pyrazole-4-carboxamide, its metabolites, and degradates in or on the raw agricultural commodities: Fruit, pome, group 11 at 0.8 parts per million (ppm); vegetables, fruiting, group 8 at 0.7 ppm; and cotton, undelinted seed at 0.30 ppm. Contact: RD.

2. PP 0E8827. (EPA-HQ-OPP-2020-0245). Interregional Research Project Number 4 (IR-4), Rutgers, The State University of New Jersey, 500 College Road East, Suite 201 W, Princeton, NJ 08540 requests to amend 40 CFR 180 by removing established tolerances for residues of fluazinam, (3-chloro-N-3-chloro-2,6-dinitro-4-(trifluoromethyl)phenyl-5-(trifluoromethyl)-2-pyridinamine) including its metabolites and degradates, in or on the raw agricultural commodities: Vegetable, legume, edible-podded, subgroup 6A, except pea at 0.10 ppm; pea and bean, succulent shelled, subgroup 6B, except pea at 0.04 ppm; pea and bean, dried shelled, except soybean, subgroup 6C, except pea at 0.02 ppm; vegetable, brassica leafy, group 5, except cabbage at 0.01 ppm; turnip, greens at 0.01 ppm. Contact: RD.

3. PP 0E8833. (EPA-HQ-OPP-2020-0336). Interregional Research Project Number 4 (IR-4), Rutgers, The State University of New Jersey, 500 College Road East, Suite 201 W, Princeton, NJ 08540 requests to remove established tolerances with general registrations for residues of the insecticide, methoxyfenozide, including its metabolites and degradates in or on the following commodities: Brassica, head and stem, subgroup 5A at 7.0 ppm; brassica, leafy greens, subgroup 5B at 30 ppm; cotton, undelinted seed at 2.0 ppm; date at 8.0 ppm; leaf petioles subgroup 4B at 25 ppm; leafy greens subgroup 4A at 30 ppm; lychee at 2.0 ppm; longan at 2.0 ppm; spanish lime at 2.0 ppm; turnip, greens at 30 ppm; vegetable, legume, edible podded, subgroup 6A at 1.5 ppm; pea and bean, succulent shelled, subgroup 6B at 0.2 ppm; pea and bean, dried shelled, except soybean, subgroup 6C, except pea, blackeyed, seed and pea, southern, seed a 0.50 ppm; and also to remove Section 18 emergency exemptions (time-limited tolerances) for residues of the insecticide, methoxyfenozide, including its metabolites and degradates in or on the commodities: Rice, bran at 4.0 ppm; rice, grain at 0.50 ppm. Contact: RD.

PP IN-11391. (EPA-HQ-OPP-2020-0451) Clorox Services Company (Representing Clorox Professional Products Company), P.O. Box 493, Pleasanton, CA 94566-0803, requests to establish an exemption from the requirement of a tolerance for residues of sodium lauroyl sarcosinate (CAS Reg. No. 137-16-6), when used as inert ingredients in pesticide formulations under 40 CFR 180.940(a) at an upper limit of 10,000 ppm. The petitioner believes no analytical method is needed because it is not required for an exemption from the requirement of a tolerance. Contact: RD.

PP 0E8824. (EPA-HQ-OPP-2020-0176). Interregional Research Project Number 4 (IR-4), 500 College Road East, Suite 201 W, Princeton, NJ 08540 requests, pursuant to section 408(d) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a(d), to amend 40 CFR part 180 to establish an exemption from the requirement of a tolerance in or on honey and honeycomb for oxalic acid dihydrate. Oxalic acid dihydrate may be analyzed using an HPLC method with UV detection. Contact: RD.

1. PP 0E8825. (EPA-HQ-OPP-2020-0228). Interregional Research Project Number 4 (IR-4), Rutgers, The State University of New Jersey, 500 College Road East, Suite 201 W, Princeton, NJ 08540 requesting, pursuant to section 408(d) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a(d), to amend 40 CFR part 180 by establishing a tolerance for residues of Fluxapyroxad, (BAS 700 F); 3-(difluoromethyl)-1-methyl-N-(3′,4′,5′-trifluoro[1,1′-biphenyl]-2-yl)-1H-pyrazole-4-carboxamide, its metabolites, and degradates in or on the raw agricultural commodities: Pomegranate at 0.2 ppm; vegetable, fruiting, group 8-10 at 0.7 ppm; fruit, pome, group 11-10 at 0.8 ppm; and cottonseed subgroup 20C at 0.3 ppm. Independently validated analytical methods have been submitted for analyzing residues of parent fluxapyroxad (BAS 700 F) plus metabolites M700F008, M700F048, and M700F002 with appropriate sensitivity in/on pomegranate. Contact: RD.

2. PP 0E8826. (EPA-HQ-OPP-2020-0227). Interregional Research Project Number 4 (IR-4), Rutgers, The State University of New Jersey, 500 College Road East, Suite 201 W, Princeton, NJ 08540 requests, pursuant to section 408(d) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a(d), to amend 40 CFR part 180 by establishing a tolerance for residues of the sum of pyraclostrobin, (carbamic acid, [2-[[[ 1-(4-chlorophenyl)-1H-pyrazol-3-yl]oxy] methyl]phenyl]methoxy-, methyl ester) and its desmethoxy metabolite (methyl-N-[[[1-(4-chlorophenyl)-1H-pyrazol-3-yl]oxy]methyl] phenylcarbamate), calculated as the stoichiometric equivalent of pyraclostrobin, in or on the raw agricultural commodity Pomegranate at 0.3 ppm. In plants the method of analysis is aqueous organic solvent extraction, column clean up and quantitation by LC/MS/MS. Contact: RD.

3. PP 0E8827. (EPA-HQ-OPP-2020-0245). Interregional Research Project Number 4 (IR-4), Rutgers, The State University of New Jersey, 500 College Road East, Suite 201 W, Princeton, NJ 08540 requesting, pursuant to section 408(d) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a(d), to amend 40 CFR part 180 by establishing tolerances for residues of fluazinam, (3-chloro-N-3-chloro-2,6-dinitro-4-(trifluoromethyl)phenyl-5-(trifluoromethyl)-2-pyridinamine) including its metabolites and degradates, in or on the raw agricultural commodities.

Individual commodities of Proposed Crop Subgroup 6-18A: Edible podded bean legume vegetable subgroup including: French bean, edible podded at 0.1 ppm; garden bean, edible podded at 0.1 ppm; green bean, edible podded at 0.1 ppm; scarlet runner bean, edible podded at 0.1 ppm; snap bean, edible podded at 0.1 ppm; kidney bean, edible podded at 0.1 ppm; navy bean, edible podded at 0.1 ppm; wax bean, edible podded at 0.1 ppm; asparagus bean, edible podded at 0.1 ppm; catjang bean, edible podded at 0.1 ppm; Chinese longbean, edible podded at 0.1 ppm; cowpea, edible podded at 0.1 ppm; moth bean, edible podded at 0.1 ppm; mung bean, edible podded at 0.1 ppm; rice bean, edible podded at 0.1 ppm; urd bean, edible podded at 0.1 ppm; yardlong bean, edible podded at 0.1 ppm; goa bean, edible podded at 0.1 ppm; guar bean, edible podded at 0.1 ppm; jackbean, edible podded at 0.1 ppm; lablab bean, edible podded at 0.1 ppm; vegetable soybean, edible podded at 0.1 ppm; sword bean, edible podded at 0.1 ppm; winged pea, edible podded at 0.1 ppm; velvet bean, edible podded at 0.1 ppm.

Individual commodities of Proposed Crop Subgroup 6-19B: Edible podded pea legume vegetable subgroup including: Dwarf pea, edible podded at 0.15 ppm; edible podded pea at 0.15 ppm; green pea, edible podded at 0.15 ppm; snap pea, edible podded at 0.15 ppm; snow pea, edible podded at 0.15 ppm; sugar snap pea, edible podded at 0.15 ppm; grass-pea, edible podded at 0.15 ppm; lentil, edible podded at 0.15 ppm; pigeon pea, edible podded at 0.15 ppm; chickpea, edible podded at 0.15 ppm.

Individual commodities of Proposed Crop Subgroup 6-19C: Succulent shelled bean subgroup including: Lima bean, succulent shelled at 0.04 ppm; scarlet runner bean, succulent shelled at 0.04 ppm; wax bean, succulent shelled at 0.04 ppm; blackeyed pea, succulent shelled at 0.04 ppm; moth bean, succulent shelled at 0.04 ppm; catjang bean, succulent shelled at 0.04 ppm; cowpea, succulent shelled at 0.04 ppm; crowder pea, succulent shelled 0.04 ppm; southern pea, succulent shelled at 0.04 ppm; Andean lupin, succulent shelled at 0.04 ppm; blue lupin, succulent shelled at 0.04 ppm; grain lupin, succulent shelled at 0.04 ppm; sweet lupin, succulent shelled at 0.04 ppm; white lupin, succulent shelled at 0.04 ppm; white sweet lupin, succulent shelled at 0.04 ppm; yellow lupin, succulent shelled at 0.04 ppm; broad bean, succulent shelled at 0.04 ppm; jackbean, succulent shelled at 0.04 ppm; goa bean, succulent shelled at 0.04 ppm; lablab bean, succulent shelled at 0.04 ppm; vegetable soybean, succulent shelled at 0.04 ppm; velvet bean, succulent shelled at 0.04 ppm.

Individual commodities of Proposed Crop Subgroup 6-19D: Succulent shelled pea subgroup including: Chickpea, succulent shelled at 0.03 ppm; English pea, succulent shelled at 0.03 ppm; garden pea, succulent shelled at 0.03 ppm; green pea, succulent shelled at 0.03 ppm; pigeon pea, succulent shelled at 0.03 ppm; lentil, succulent shelled at 0.03 ppm.

Individual commodities of Proposed Crop Subgroup 6-19E: Dried shelled bean, except soybean, subgroup including: African yam-bean, dry seed at 0.02 ppm; American potato bean, dry seed at 0.02 ppm; Andean lupin bean, dry seed at 0.02 ppm; blue lupin bean, dry seed at 0.02 ppm; grain lupin bean, dry seed at 0.02 ppm; sweet lupin bean, dry seed at 0.02 ppm; white lupin bean, dry seed at 0.02 ppm; white sweet lupin bean, dry seed at 0.02 ppm; yellow lupin bean, dry seed at 0.02 ppm; black bean, dry seed at 0.02 ppm; cranberry bean, dry seed at 0.02 ppm; dry bean, dry seed at 0.02 ppm; field bean, dry seed at 0.02 ppm; French bean, dry seed at 0.02 ppm; garden bean, dry seed at 0.02 ppm; great northern bean, dry seed at 0.02 ppm; green bean, dry seed at 0.02 ppm; kidney bean, dry seed at 0.02 ppm; Lima bean, dry seed at 0.02 ppm; navy bean, dry seed at 0.02 ppm; pink bean, dry seed at 0.02 ppm; pinto bean, dry seed at 0.02 ppm; red bean, dry seed at 0.02 ppm; scarlet runner bean, dry seed at 0.02 ppm; tepary bean, dry seed at 0.02 ppm; yellow bean, dry seed at 0.02 ppm; adzuki bean, dry seed at 0.02 ppm; blackeyed pea, dry seed at 0.02 ppm; asparagus bean, dry seed at 0.02 ppm; catjang bean, dry seed at 0.02 ppm; Chinese longbean, dry seed at 0.02 ppm; cowpea, dry seed at 0.02 ppm; crowder pea, dry seed at 0.02 ppm; mung bean, dry seed at 0.02 ppm; moth bean, dry seed at 0.02 ppm; rice bean, dry seed at 0.02 ppm; southern pea, dry seed at 0.02 ppm; urd bean, dry seed at 0.02 ppm; yardlong bean, dry seed at 0.02 ppm; broad bean, dry seed at 0.02 ppm; guar bean, dry seed at 0.02 ppm; goa bean, dry seed at 0.02 ppm; horse gram, dry seed at 0.02 ppm; jackbean, dry seed at 0.02 ppm; lablab bean, dry seed at 0.02 ppm; morama bean, dry seed at 0.02 ppm; sword bean, dry seed at 0.02 ppm; winged pea, dry seed at 0.02 ppm; velvet bean, dry seed at 0.02 ppm; vegetable soybean, dry seed at 0.02 ppm.

Individual commodities of Proposed Crop Subgroup 6-19F: Dried shelled pea subgroup including: Field pea, dry seed at 0.04 ppm; dry pea, dry seed at 0.04 ppm; green pea, dry seed at 0.04 ppm; garden pea, dry seed at 0.04 ppm; chickpea, dry seed at 0.04 ppm; lentil, dry seed at 0.04 ppm; grass-pea, dry seed at 0.04 ppm; pigeon pea, dry seed at 0.04 ppm; pea, field, hay at 40 ppm; pea, field, vines at 6 ppm; tomato subgroup 8-10A at 1.5 ppm; papaya at 3 ppm; vegetable, brassica, head and stem, group 5-16, except cabbage at 0.01 ppm; brassica, leafy greens, subgroup 4-16B at 0.01 ppm; kohlrabi at 0.01 ppm. An analytical method using LC-MS/MS for the determination of fluazinam and AMGT residues on peas, tomatoes and papaya was developed. Contact: RD.

4. PP 0E8833. (EPA-HQ-OPP-2020-0336). Interregional Research Project Number 4 (IR-4), Rutgers, The State University of New Jersey, 500 College Road East, Suite 201 W, Princeton, NJ 08540 requesting, pursuant to section 408(d) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a(d), to amend 40 CFR part 180 by establishing the following: Tolerances with general registrations for residues of the insecticide, methoxyfenozide, including its metabolites and degradates. Compliance with the tolerance levels is to be determined by measuring only methoxyfenozide (3-methoxy-2-methylbenzoic acid 2-(3,5-dimethylbenzoyl)-2-(1,1-dimethylethyl) hydrazide) in or on the commodities: Vegetable, leafy, group 4-16 at 30 ppm; vegetable, brassica, head and stem, group 5-16 at 7 ppm; celtuce at 25 ppm; fennel, Florence, fresh leaves and stalk at 25 ppm; kohlrabi at 7 ppm; leaf petiole vegetable subgroup 22B at 25 ppm; tropical and subtropical, palm fruit, edible peel, subgroup 23C at 8 ppm; tropical and subtropical, small fruit, inedible peel, subgroup 24A at 2 ppm; cottonseed subgroup 20C at 7 ppm; French bean, edible podded at 2 ppm; garden bean, edible podded at 2 ppm; green bean, edible podded at 2 ppm; scarlet runner bean, edible podded at 2 ppm; snap bean, edible podded at 2 ppm; kidney bean, edible podded at 2 ppm; navy bean, edible podded at 2 ppm; wax bean, edible podded at 2 ppm; asparagus bean, edible podded at 2 ppm; catjang bean, edible podded at 2 ppm; chinese longbean, edible podded at 2 ppm; cowpea, edible podded at 2 ppm; moth bean, edible podded at 2 ppm; mung bean, edible podded at 2 ppm; rice bean, edible podded at 2 ppm; urd bean, edible podded at 2 ppm; yardlong bean, edible podded at 2 ppm; goa bean, edible podded at 2 ppm; guar bean, edible podded at 2 ppm; jackbean, edible podded at 2 ppm; lablab bean, edible podded at 2 ppm; vegetable soybean, edible podded at 2 ppm; sword bean, edible podded at 2 ppm; winged pea, edible podded at 2 ppm; velvet bean, edible podded at 2 ppm; dwarf pea, edible podded at 2 ppm; edible podded pea, edible podded at 2 ppm; green pea, edible podded at 2 ppm; snap pea, edible podded at 2 ppm; snow pea, edible podded at 2 ppm; sugar snap pea, edible podded at 2 ppm; grass-pea, edible podded at 2 ppm; lentil, edible podded at 2 ppm; pigeon pea, edible podded at 2 ppm; chickpea, edible podded at 2 ppm; Lima bean, succulent shelled at 0.3 ppm; scarlet runner bean, succulent shelled at 0.3 ppm; wax bean, succulent shelled at 0.3 ppm; blackeyed pea, succulent shelled at 0.3 ppm; moth bean, succulent shelled at 0.3 ppm; catjang bean, succulent shelled at 0.3 ppm; cowpea, succulent shelled at 0.3 ppm; crowder pea, succulent shelled at 0.3 ppm; southern pea, succulent shelled at 0.3 ppm; Andean lupin, succulent shelled at 0.3 ppm; blue lupin, succulent shelled at 0.3 ppm; grain lupin, succulent shelled at 0.3 ppm; sweet lupin, succulent shelled at 0.3 ppm; white lupin, succulent shelled at 0.3 ppm; white sweet lupin, succulent shelled at 0.3 ppm; yellow lupin, succulent shelled at 0.3 ppm; broad bean, succulent shelled at 0.3 ppm; jackbean, succulent shelled at 0.3 ppm; goa bean, succulent shelled at 0.3 ppm; lablab bean, succulent shelled at 0.3 ppm; vegetable soybean, succulent shelled at 0.3 ppm; velvet bean, succulent shelled at 0.3 ppm; chickpea, succulent shelled at 0.3 ppm; English pea, succulent shelled at 0.3 ppm; garden pea, succulent shelled at 0.3 ppm; Green pea, succulent shelled at 0.3 ppm; Pigeon pea, succulent shelled at 0.3 ppm; lentil, succulent shelled at 0.3 ppm; African yam-bean, dry seed at 0.5 ppm; American potato bean, dry seed at 0.5 ppm; Andean lupin bean, dry seed at 0.5 ppm; blue lupin bean, dry seed at 0.5 ppm; grain lupin bean, dry seed at 0.5 ppm; sweet lupin bean, dry seed at 0.5 ppm; white lupin bean, dry seed at 0.5 ppm; white sweet lupin bean, dry seed at 0.5 ppm; yellow lupin bean, dry seed at 0.5 ppm; black bean, dry seed at 0.5 ppm; cranberry bean, dry seed at 0.5 ppm; dry bean, dry seed at 0.5 ppm; field bean, dry seed at 0.5 ppm; French bean, dry seed at 0.5 ppm; garden bean, dry seed at 0.5 ppm; great northern bean, dry seed at 0.5 ppm; green bean, dry seed at 0.5 ppm; kidney bean, dry seed at 0.5 ppm; Lima bean, dry seed at 0.5 ppm; navy bean, dry seed at 0.5 ppm; pink bean, dry seed at 0.5 ppm; pinto bean, dry seed at 0.5 ppm; red bean, dry seed at 0.5 ppm; scarlet runner bean, dry seed at 0.5 ppm; tepary bean, dry seed at 0.5 ppm; yellow bean, dry seed at 0.5 ppm; adzuki bean, dry seed at 0.5 ppm; asparagus bean, dry seed at 0.5 ppm; catjang bean, dry seed at 0.5 ppm; Chinese longbean, dry seed at 0.5 ppm; cowpea, dry seed at 0.5 ppm; crowder pea, dry seed at 0.5 ppm; mung bean, dry seed at 0.5 ppm; moth bean, dry seed at 0.5 ppm; rice bean, dry seed at 0.5 ppm; urd bean, dry seed at 0.5 ppm; yardlong bean, dry seed at 0.5 ppm; broad bean, dry seed at 0.5 ppm; guar bean, dry seed at 0.5 ppm; goa bean, dry seed at 0.5 ppm; horse gram, dry seed at 0.5 ppm; jackbean, dry seed at 0.5 ppm; lablab bean, dry seed at 0.5 ppm; morama bean, dry seed at 0.5 ppm; sword bean, dry seed at 0.5 ppm; winged pea, dry seed at 0.5 ppm; velvet bean, seed, dry seed at 0.5 ppm; vegetable soybean, dry seed at 0.5 ppm; field pea, dry seed at 0.5 ppm; dry pea, dry seed at 0.5 ppm; green pea, dry seed at 0.5 ppm; garden pea, dry seed at 0.5 ppm; chickpea, dry seed at 0.5 ppm; lentil, dry seed at 0.5 ppm; grass-pea, dry seed at 0.5 ppm; pigeon pea, dry seed at 0.5 ppm. Also, tolerances with regional registrations are requested for residues of the insecticide, methoxyfenozide, including its metabolites and degradates. Compliance with the tolerance levels is to be determined by measuring only methoxyfenozide (3-methoxy-2-methylbenzoic acid 2-(3,5-dimethylbenzoyl)-2-(1,1-dimethylethyl) hydrazide) in or on the commodities: Rice, grain at 30 ppm; rice, hulls at 55 ppm; rice, straw at 30 ppm. Adequate methods are available for tolerance enforcement in primary crops and animal commodities. Contact: RD.

5. PP 0E8848. (EPA-HQ-OPP-2019-0233). Interregional Research Project No. 4 (IR-4), IR-4 Project Headquarters, Rutgers, The State University of NJ, 500 College Road East, Suite 201 W, Princeton, NJ 08540, requests to amend 40 CFR part 180 by establishing tolerances for residues of 2,4-D in or on the raw agricultural commodity Sesame, seed at 0.05 ppm. An adequate GC/ECD enforcement method for plants (designated as EN-CAS Method No. ENC-2/93) which has been independently validated. Adequate radiovalidation data have been submitted and evaluated for the enforcement method using samples from the wheat metabolism study. Contact: RD.

6. PP 9E8745. (EPA-HQ-OPP-2019-0233). Interregional Research Project No. 4 (IR-4), IR-4 Project Headquarters, Rutgers, The State University of NJ, 500 College Road East, Suite 201 W, Princeton, NJ 08540, requests to amend 40 CFR part 180 by establishing tolerances for residues of 2,4-D in or on the raw agricultural commodities: Wheatgrass, intermediate, bran at 4 ppm; wheatgrass, intermediate, grain at 2 ppm; wheatgrass, intermediate, straw at 50 ppm; and wheatgrass, intermediate, forage at 25 ppm. An adequate GC/ECD enforcement method for plants (designated as EN-CAS Method No. ENC-2/93) which has been independently validated. Adequate radiovalidation data have been submitted and evaluated for the enforcement method using samples from the wheat metabolism study. Contact: RD.

7. PP 9E8819. (EPA-HQ-OPP-2020-0050). BASF Corporation, 26 Davis Drive, P.O. Box 13528, Research Triangle Park, NC 27709 requests to establish a tolerance in 40 CFR part 180.589 for residues of the fungicide boscalid in or on tea at 80 ppm. The gas chromatography using mass spectrometry (GC/MS) or liquid chromatography in tandem mass spectrometry detection (LC/MS/MS) method are used to measure and evaluate the chemical boscalid. Contact: RD.

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 sought the expert opinions of seven appropriate specialists regarding the species status assessment (SSA) report, which informed the proposed reclassification portion of this proposed rule. The purpose of peer review is to ensure that our reclassification determination is based on scientifically sound data, assumptions, and analyses. The peer reviewers have expertise in beach layia ecology, habitat, and threats to the species. We received a response from four of the seven peer reviewers, which we considered in our SSA report and this proposed rule. Additionally, we will consider all comments and information we receive during the comment period on this proposed rule as we prepare the final determination. Accordingly, the final decision may differ from this proposal.

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 any other interested parties concerning this proposed rule. Because we will consider all comments and information we receive during the comment period, our final determination may differ from this proposal. We particularly seek comments concerning:

(1) Reasons why we should or should not reclassify beach layia from an endangered species to a threatened species under the Act (16 U.S.C. 1531 et seq. );

(2) New biological or other relevant data concerning any threat (or lack thereof) to this species (for example, those associated with climate change);

(3) New information on any efforts by the State or other entities to protect or otherwise conserve the species;

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

(5) New information on the current or planned activities in the habitat or range that may adversely affect or benefit the species.

(6) Comments and suggestions regarding additional guidance and methods that the Service could provide or use, respectively, to streamline the implementation of the proposed 4(d) rule.

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.

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 .

All comments submitted electronically via http://www.regulations.gov will be presented on the website in their entirety as submitted. For comments submitted via hard copy, we will post your entire comment—including your personal identifying information—on http://www.regulations.gov. You may request at the top of your document that we withhold personal information such as your street address, phone number, or email address from public review; however, we cannot guarantee that we will be able to do so.

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

Please note that submissions merely stating support for or opposition to the reclassification 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.”

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

A species status assessment (SSA) team prepared an SSA report for beach layia. The SSA team was composed of Service biologists, in consultation with other species experts. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of beach layia, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species. As discussed above under Peer Review, the SSA report underwent independent peer review by scientists with expertise in beach layia ecology, habitat management, and stressors that negatively affect the species. The SSA report can be found on the internet at http://www.regulations.gov under Docket No. FWS-R8-ES-2018-0042, and at the Arcata Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT ).

On June 22, 1992, we published a final rule (57 FR 27848) to list beach layia as an endangered species. On September 29, 1998, we finalized a recovery plan for this and six other coastal species (Service 1998, entire). In 2011, we completed a 5-year review (Service 2011, entire) and concluded that there was evidence to support a decision to reclassify beach layia from an endangered species to a threatened species under the Act. We announced the availability of this review on April 27, 2012 (77 FR 25112).

It is our intent to discuss only those topics directly related to the reclassification of beach layia in this proposed rule. For more information on the species description, life history, genetics, and habitat of beach layia, please refer to the May 8, 2018, SSA report (Service 2018, entire), which is a comprehensive assessment of the biological status of beach layia. At the time of listing (57 FR 27848; June 22, 1992), we determined that human-induced disturbances (particularly off-highway vehicle (OHV) activity, but also other disturbances from agriculture, pedestrians, development, etc.) were significant threats to beach layia, resulting in ongoing negative population or rangewide impacts. Thus, we determined that the best available information indicated that the species was in danger of extinction throughout all of its range. Since that time, these activities have been significantly reduced, especially OHV activity, with records of the species demonstrating positive responses in abundance. Additionally, significant areas have been set aside as preserves and conservation areas. After taking into consideration our threats analysis and recovery criteria (Service 1998, pp. 43-48), we have determined that the species no longer meets the definition of an endangered species, but does meet the definition of a threatened species (likely to become an endangered species within the foreseeable future). Given this information, the best available scientific and commercial information now indicate that the species has improved to the point that it can be downlisted.

The SSA report provides a thorough account of the species' overall condition currently and into the future. In this section, we summarize the conclusions of that assessment, including: (1) The species' description, ecology, habitat, and resource needs; (2) beach layia's current condition, including population abundance, distribution, and factors affecting its viability; and (3) potential future conditions. The full report can be accessed on the internet at http://www.regulations.gov under Docket No. FWS-R8-ES-2018-0042.

Beach layia is a succulent annual herb belonging to the sunflower family (Asteraceae). Plants range up to 6 inches (in) (15.2 centimeter (cm)) tall and 16 in (40.6 cm) across (Baldwin et al. 2012, p. 369). Characteristics distinguishing beach layia from similar species include its fleshy leaves; inconspicuous flower heads with short (0.08 to 0.1 in (2 to 2.5 millimeter (mm)) long) white ray flowers (occasionally purple) and yellow disk flowers; and bristles around the top of the one-seeded achene, or dry fruit (Service 1998, p. 43).

Beach layia germinates during the rainy season between fall and mid-winter, blooms in spring (March to July), and completes its life cycle before the dry season (July-September) (Service 1998, p. 45). Populations tend to be patchy and subject to large annual fluctuations in size and dynamic changes in local distribution associated with the shifts in dune blowouts, remobilization, and natural dune stabilization that occur in the coastal dune ecosystem (Service 1998, p. 45). Beach layia plants often occur where sparse vegetation traps wind-dispersed seeds, but causes minimal shading. Seeds are dispersed by wind mostly during late spring and summer months (Service 1998, p. 45). Additionally, beach layia is self-compatible ( i.e., able to be fertilized by its own pollen), capable of self-pollination, and is visited by a variety of insects that may assist in cross-pollination (Sahara 2000, entire). Although the role of pollinators is currently unclear, sexual reproduction does add to genetic diversity.

Beach layia occurs in open spaces of sandy soil between the low-growing perennial plants in the Abronia latifolia—Ambrosia chamissonis herbaceous alliance (dune mat) and Leymus mollis herbaceous alliance (sea lyme grass patches) (Sawyer et al. 2009, pp. 743-745, 958-959). Typically, the total vegetation cover in both communities is relatively sparse, and many annual species, including beach layia, colonize the space between established, tufted perennials. Beach layia can also occur in narrow bands of moderately disturbed habitat along the edges of trails and roads in dune systems dominated by invasive species.

Coastal dune systems are composed of a mosaic of vegetation communities of varying successional stages (see additional discussion in section 4.4 of the SSA report (Service 2018, pp. 9-11). Beach layia occurs in early to mid-successional communities in areas where sand is actively being deposited or eroding. Too much sand movement prevents plants from establishing, but areas with some movement on a periodic basis support early successional communities. Movement of sand by wind is essential for the development and sustainability of a dune system. Wind is also important to beach layia specifically because it is the mechanism by which seeds are dispersed. The achenes (a small, dry, one-seeded fruit that does not open to release the seed) have pappus (feathery bristles) that allow them to be carried by wind for a short distance. Although not all seeds may land on suitable habitat, this adaptation allows the small annual to spread across the landscape into uninhabited areas.

As a winter germinating annual, beach layia requires rainfall during the winter months (November through February) for germination and, although it is relatively tolerant to the drought-like conditions of upland dunes, it does need some moisture through the spring to prevent desiccation. Moisture also reduces the risk of burial, as dry sand is more mobile and mortality caused by burial has been documented (Imper 2014, p. 6).

The overall resource needs that beach layia requires in order for individuals to complete their life cycles and for populations to maintain viability are:

(1) Sandy soils with sparse native vegetation cover,

(2) Rainfall during the winter germination period,

(3) Sunlight (full sun exposure for photosynthesis), and

(4) Unknown degree of cross-pollination (to add to genetic diversity).

For the purposes of our analysis as summarized in our SSA report (Service 2018, entire), we grouped the populations by ecoregions based on average annual rainfall (precipitation is directly correlated with abundance for this species), habitat characteristics, and distance between population centers. The North Coast Ecoregion contains the largest and most resilient populations and receives the highest average annual rainfall. The Central Coast Ecoregion receives less rain than the North Coast but more than the South Coast, and is comprised of three small populations on the Monterey peninsula that are less resilient due to low abundance, although habitat quality is high at two of the sites. The South Coast Ecoregion, both historically and currently, consists of a single population on the Vandenberg Air Force Base (AFB). Average annual rainfall varies across the three ecoregions. Rainfall in the North Coast Ecoregion is around 38 in (96 cm), while the Central Coast Ecoregion receives 20 in (51 cm), and the South Coast Ecoregion receives 14 in (36 cm) (National Oceanic and Atmospheric Administration (NOAA) 2017).

Historical distribution of beach layia is similar to that known currently, while abundance values have increased, primarily due to increased survey efforts, amelioration of some threats, and a better understanding of the species' reproduction pattern following years with high amounts of rainfall. The current distribution includes populations spread across dune systems in the following geographic areas (ecoregions) covering more than 500 miles (mi) (805 kilometers (km)) of shoreline in northern, central, and southern California (see figures 7-13 and table 2 in the SSA report (Service 2018, pp. 15-24)):

• North Coast Ecoregion:

• Central Coast Ecoregion:

• South Coast Ecoregion:

Of the known historical populations, four are considered extirpated, including the San Francisco population, the Point Pinos population in the Monterey area, and two populations north of the Mad River in Humboldt County. All currently extant populations were known at the time of listing and when the recovery plan was finalized (1992 and 1998, respectively), with the exception of the Freshwater Lagoon population discovered in 2000, at the far northern extent of the species' range (see table, below). The total number of individuals across the range of the species reported in the recovery plan was 300,000. However, sampling data collected at the Lanphere Dunes that same year yielded an estimate of over one million plants for that subpopulation alone, which indicates the estimate in the recovery plan was substantially lower than the actual number of individuals (Pickart 2018, pers. comm.).

Current conditions and trend information (when available) are summarized below for the 13 extant populations (including the North Spit Humboldt Bay population that is comprised of 8 subpopulations and the largest proportion of plants throughout the species' range). Information about extirpated populations is also shown in the table, below. Additional information on current conditions of these populations, as well as information about the four extirpated populations, is found in section 7.0 of the SSA report (Service 2018, pp. 25-38).

This is the northern-most population of beach layia, which was discovered during spring 2000, in northern Humboldt County at Redwood National Park, currently encompassing approximately 3 acres (ac) (1.2 hectares (ha)) (Julian 2017, pers. comm.). A census of the population has been conducted every year since 2000, and results indicate the population and individual patches fluctuate substantially, with a peak of 11,110 plants recorded in 2003, and as few as 263 plants in 2014 (Julian 2017, pers. comm.) (see figure 14 in the SSA report). The overall trend of this population is declining, likely due to drought conditions and high cover of native grasses (red fescue ( Festuca rubra )) adversely affecting its resource needs ( i.e., reduction of area of sparse vegetative cover and sunlight).

Mad River Beach Subpopulation: The Mad River Beach subpopulation is the northern-most subpopulation (one of eight) within the North Spit Humboldt Bay population (hereafter referred to as “North Spit”). There is little information available for this subpopulation, which resides on Humboldt County-owned land south of the mouth of the Mad River, as well as the nearby Humboldt Bay National Wildlife Refuge-owned Long parcel. Beach layia is fairly abundant and widely distributed within the dune mat habitat in this area (Goldsmith 2018, pers. obs.). However, the vegetation community is dominated by invasive, nonnative species including European beachgrass ( Ammophila arenaria ), annual grasses (ripgut brome ( Bromus diandrus ) and quaking grass ( Briza maxima )), and yellow bush lupine ( Lupinus arboreous ) (Goldsmith 2018, pers. obs.). The subpopulation is conservatively estimated to encompass approximately 1 ac (0.4 ha), although abundance, distribution, and trend information is unknown. Suitable habitat is limited due to overstabilization caused by a heavy invasion of invasive nonnative species. No efforts to restore ecosystem function are currently under way, nor does the County or Refuge have any restoration planned at this time.

Bair/Woll Subpopulation: This subpopulation occurs on the Refuge-owned Bair parcel and privately owned Woll parcel; acquisition and restoration of the entire subpopulation is a high priority for the Refuge (Refuge 2013, p. 2). The majority of the area is dominated by nonnative, invasive species including European beachgrass, iceplant ( Carpobrotus edulis and C. chilensis ), yellow bush lupine, and annual grasses (Pickart 2018, pers. comm.). To date, restoration has occurred on the southwest corner of the Bair parcel. The subpopulation encompasses approximately 13 ac (5.3 ha), although abundance and trend information, and adequacy of resource needs—beyond the visible reduction of sparse vegetative cover—are unknown.

Lanphere Dunes Subpopulation: This subpopulation occurs on the Lanphere Dunes Unit of the Refuge and encompasses a conservative estimate of approximately 33 ac (13 ha) (Service 2017, unpublished data). Restoration has been underway since the 1980s, including removal of invasive plants in an effort to restore ecosystem function. Ongoing nonnative species removal/maintenance appears necessary in this area to ensure that beach layia's resource needs are met. Over the years, this population of beach layia has responded positively to restoration actions and negatively to lack of rainfall in the winter months (see figure 15 in the SSA report). In 2017, abundance was estimated for both Lanphere Dunes and Ma-le'l North (see below) at approximately 1 million individual plants (Pickart 2017, pers. comm.).

Ma-le'l North Subpopulation: This subpopulation resides directly south of the Lanphere Dunes on the Ma-le'l North Dunes Unit of the Refuge and comprises the northern end of the Ma-le'l Cooperative Management Area (CMA), the southern portion of which is cooperatively owned/managed by BLM (see Ma-le'l South Subpopulation, below). Nonnative plants ( i.e., European beachgrass, annual grasses, iceplant, and yellow bush lupine) require continued control to maintain the open/sparse vegetative cover and adequate sunlight needs that beach layia relies on. The total subpopulation area is approximately 29 ac (11.7 ha) (Service 2017, unpublished data).

Ma-le'l South Subpopulation: Extending immediately south of the Ma-le'l North subpopulation, the Ma-le'l South subpopulation is approximately 48 ac (19.4 ha), had an estimate of approximately 2 million individuals in 2017, and is owned/managed by BLM. Restoration has produced positive results in favor of beach layia persistence, although periodic maintenance of nonnative, invasive plants is necessary (Wheeler 2017, pers. comm.) to ensure the open/sparse vegetative cover resource need that beach layia relies on. Additionally, the best available data indicate this subpopulation is less abundant during drought years (2012-2015), followed by a positive spike in abundance following a winter of substantial rainfall (Wheeler 2017, pers. comm.) (see also figure 16 in the SSA report). The results of this subpopulation's monitoring ( i.e., that beach layia is less abundant during drought years and more abundant following winters with heavy rainfall) are likely representative of the species across its entire range, based on the best available data to date regarding the species ecology and life history characteristics.

Manila North Subpopulation: This subpopulation encompasses two areas within close proximity to each other on lands owned/managed by the Manila Community Services District (CSD) and the nonprofit organization known as Friends of the Dunes. The total estimated subpopulation (both areas) was approximately 1.4 million individuals in 2017 and occupies approximately 82 ac (33 ha). Efforts have been made to remove nonnative, invasive species, but the efforts have not been consistent and many areas have been re-invaded. Active management is needed to ensure the open/sparse vegetative cover and adequate sunlight needs that beach layia relies on are available.

Manila South Subpopulation: This subpopulation is immediately south of the north population but resides on private property, encompassing approximately 47 ac (19 ha) as reported most recently in 2017 (Service 2017, unpublished data). The area is dominated with nonnative, invasive European beachgrass, iceplant, and annual grasses. Abundance and trend information, and adequacy of resource needs—beyond the visible reduction of area of sparse vegetative cover—are unknown.

Samoa/Eureka Dunes Subpopulation: This subpopulation is the southern extent/limit of the North Spit (Humboldt Bay) population, encompassing approximately 49 ac (20 ha) on lands owned/managed by both BLM and the City of Eureka and was estimated to include over 6 million individuals in 2017. The BLM lands occupied by the species are managed to provide both an Endangered Species Protection Area and an open OHV use area. The remainder of the City's occupied habitat includes an additional OHV use area, an industrial zoned area containing an operational airport facility, and an 84-ac (34-ha) parcel under conservation easement known as the Eureka Dunes Protected Area held by the Center for Natural Lands Management. Some of this subpopulation has been restored; however, nonnative, invasive species continue to envelop open areas where beach layia plants occur. Some monitoring data recently available indicate the protected areas harbor a higher density of beach layia compared to the OHV area, including increased density of beach layia over the past 2 years, which correlates with increased precipitation over this same time frame (BLM 2016b). Similar to the monitoring results discussed in the Ma-le'l South Subpopulation, above, the results of this subpopulation's monitoring ( i.e., beach layia occurring at higher densities in the restored, protected areas compared to heavily impacted OHV areas, and high densities of beach layia plants correlating with years that have heavy annual rainfall) are likely representative of the species across its entire range, based on the best available data to date regarding the species' ecology and life-history characteristics.

This population is owned and managed by the City of Eureka on the east shore of Humboldt Bay at the mouth of Elk River (see figure 8 in the SSA report). The spit is approximately 1.2 mi (1.9 km) long by up to 0.1 mi (0.16 km) wide, and beach layia occupies approximately 15 ac (6 ha) and was estimated to include 468,000 individuals in 2017 (Service 2017, unpublished data). Trend information is not available, although a recent survey in 2017 indicates the area is dominated by nonnative, invasive European beachgrass (Goldsmith 2017, pers. obs.).

The 5-mi (8-km) stretch of dune that supports beach layia extends south from Humboldt Bay's entrance to the base of Table Bluff (see Figure 8 in the SSA report). The majority of this population is owned by the California Department of Fish and Wildlife (CDFW) as the Mike Thompson Wildlife Area, and the remainder is owned by BLM, which also manages the entire population (BLM 2014b, p. 3). The best available information suggests this population has increased in size since 2003, currently encompassing 83 ac (34 ha) with a population estimate of approximately 6 million plants (Service 2017, unpublished data). The steady increase in occupied beach layia habitat over time is due to the continued restoration effort to remove nonnative, invasive European beachgrass and iceplant (BLM 2014b, p. 7; Wheeler 2017, pers. comm.). Additionally, monitoring data available from two plots established in 2008 indicate increased density of beach layia following restoration, decreased density during recent drought years, and a subsequent increased density with high levels of annual precipitation (BLM 2014b, p. 15). These monitoring data suggest that beach layia density increases dramatically following restoration, that density settles to a more moderate level as native plants fill in the previously invaded habitat, and that density is also strongly correlated to rainfall.

Located immediately south of the South Spit Humboldt Bay Population, this population encompasses 37 ac (15 ha) of conserved lands within the CDFW's Eel River Wildlife Area and was estimated to include 4.7 million individuals in 2017 (Service 2017, unpublished data). The area is dominated by nonnative, invasive species including European beachgrass, iceplant, yellow bush lupine, and annual grasses. Trend information and adequacy of resource needs—beyond the visible reduction of area of sparse vegetative cover—are unknown.

On the south side of the Eel River mouth, this population occurs on an area owned and managed by the Wildlands Conservancy, encompassing approximately 1.5 ac (0.6 ha) of occupied beach layia habitat and 11,307 plants as recorded in 2017 (Service 2017, unpublished data). It is likely that beach layia occurs in other areas of the property, although additional survey data do not yet exist. The area harbors nonnative, invasive European beachgrass that is reducing the availability of open sandy areas for beach layia to persist.

This population was discovered in 1987, on private property near the mouth of McNutt Gulch. Varied numbers of plants have been recorded, ranging from 200 to 500 plants (CNDDB 2017; Imper 2018, pers. comm.), although a complete survey has not yet occurred. The occupied area is estimated to be less than 1 ac (0.4 ha) (Imper 2018, pers. comm.). A comparison of current and historical aerial photos indicate encroachment of European beachgrass. At this time, there is no beach layia trend information available.

This is the southern extent of the known beach layia populations within Humboldt County. This population occupies approximately 27 ac (11 ha) within part of the King Range National Conservation Area and was estimated to include 3.1 million individuals in 2017 (Hassett 2017, pers. comm.). The area is owned and managed by BLM and is located 35 mi (56 km) south of the entrance to Humboldt Bay. Monitoring data available from 2017 indicate this population had a spike in abundance that year compared to the previous year (estimated to be 725,000 individuals) that correlates to an increase in precipitation (Hassett 2017, pers. comm.).

The next known population of beach layia to the south is located in Marin County, 200 mi (322 km) south of Humboldt Bay, in the dunes between Kehoe Beach Dunes and the Point Reyes lighthouse at Point Reyes (Service 1998, p. 44; figure 11 in the SSA report). This large dune system contains approximately 146 ac (59 ha) of dunes occupied by beach layia within 14 geographically concentrated areas, based on mapping conducted since 2001 (Point Reyes 2010, unpaginated). However, some of those areas were no longer occupied in 2017 (Goldsmith 2017, pers. obs.). The population was estimated to be 2.7 million in 2017 though varying levels of survey intensity over the years hamper our ability to track population trends (Parsons 2017, pers. comm.). However, sampling conducted from 2015-2017 in the Abbots Lagoon area, which includes recently restored areas, estimate increasing abundance (Parsons 2017, pers. comm.), which also correlates with an increase in precipitation. Restoration is ongoing and includes removal of nonnative, invasive European beachgrass and iceplant, which occur at various densities throughout the 14 subpopulations (Parsons 2017, pers. comm.).

The northern-most extant population in Monterey County was previously thought to be extirpated but was rediscovered in 1990 (Service 1998, p. 44). Since the time of the first survey effort in 1994, in which 192 plants were found, subsequent survey efforts found the abundance to remain relatively static within the same geographical footprint (Service 2011, p. 22; Gray 2017, pers. comm.). Most recently in 2017, the occupied beach layia habitat consisted of a sparse layer of native dune mat vegetation with no presence of nonnative, invasive species (Dorrell-Canepa 2017, pers. comm.). A total of 1,541 plants were counted within 0.17 ac (688 m 2 ) (Gray 2017, pers. comm.). This 2017 count is the highest on record for this population, possibly correlated with the high amount of rainfall during the germination period. This population appears to be stable given its consistent year-to-year presence and relative protection from threats.

The second of three populations in Monterey County, the Indian Village Dunes population occurs on restored dune habitat owned by the Pebble Beach Company, most recently (2017) estimated at 1,200 plants on 0.55 ac (0.2 ha) (Dorrell-Canepa 2017, pers. comm.). Trends on distribution and abundance are not available, beyond one additional 2009 survey result of 1,783 plants over the same size acreage. This area is preserved through a conservation easement, and restoration activities have occurred and the habitat consists of sparse native vegetation.

This southern-most population within Monterey County is located less than 1 mi (1.6 km) south of the Indian Village Dunes population and is also owned by Pebble Beach Company. No recent survey information exists. The best available information is from a 2001 survey effort indicating plants occurring in five semi-isolated areas (Zander Associates 2001, p. 7), likely encompassing less than 1 ac (0.4 ha). No information is known regarding adequacy of the area to meet the species' resource needs.

The southern-most population of beach layia occurs on Vandenberg AFB in Santa Barbara County, separated by a distance of approximately 235 mi (378 km) from the Signal Hill Dunes population. This area receives less annual rainfall than the Central and North Coast Ecoregions ( i.e., 14 in (36 cm) as compared to 20 in (51 cm) and 38 in (96 cm), respectively) (NOAA 2017). In both 2012 and 2016, a census of all known occupied habitat was conducted and 2,397 and 1,855 plants were counted, respectively. Most recently, in 2017, a total of 5,069 plants were counted (Schneider and Calloway 2017, p. 6). Due to varying levels of survey effort, there is no beach layia population trend information for this entire population, although the number of beach layia within a restoration area on the south side of the AFB demonstrates wide fluctuations in population size from year to year, which is often correlated to the amount of rainfall (see table 4 in the SSA report). Although restoration of beach layia habitat on Vandenberg AFB has occurred and is expected to continue into the future, it is highly stabilized due to the presence of nonnative, invasive species, including iceplant, European beachgrass, and veldt grass ( Ehrharta erecta ) (Schneider and Calloway 2017, p. 14), thus reducing the open sandy areas that beach layia relies on.

The Act directs us to determine whether any species is an endangered species or a threatened species because of any factors affecting its continued existence. 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.

In our determination, we correlate the threats acting on the species to the factors in section 4(a)(1) of the Act. We summarize the SSA for beach layia (Service 2018, entire) below. Determining whether the status of a species has improved to the point that it can be downlisted ( i.e., reclassified from endangered to threatened) or delisted ( i.e., removed from listed status) requires consideration of whether the species meets the definition of either endangered species or threatened species contained in the Act. For species that are already listed as endangered species or threatened species, this analysis of threats is an evaluation of both the threats currently facing the species and the threats that are reasonably likely to affect the species in the foreseeable future following the delisting or downlisting and the removal or reduction of the Act's protections.

As stated previously, at the time of listing (57 FR 27848; June 22, 1992), we determined that human-induced disturbances (particularly OHV activity, but also other disturbances from agriculture, pedestrians, development, etc.) were significant threats to beach layia, resulting in ongoing negative population or rangewide impacts; thus, we determined that the best available information indicated that the species was in danger of extinction throughout all of its range. Since that time, these activities have been significantly reduced, especially OHV activity, with records of the species subsequently demonstrating positive responses in abundance. Additionally, significant areas have been set aside, including preserves, conservation areas, and conservation easements.

This current analysis considers the beneficial influences on beach layia, as well as the potential risk factors ( i.e., threats) that are either remaining or new and could be affecting beach layia now or in the future. In this proposed rule, we will discuss in detail only those factors that could meaningfully impact the status of the species. The primary risk factors affecting beach layia are the present and threatened modification or destruction of its habitat from overstabilization/competition with invasive species (Factor A from the Act), modification of its habitat from changing climate conditions (Factor E), modification of its habitat from human-influenced erosion/high level of disturbance ( e.g., recreation) (Factor A), and modification of its habitat from vertical land movement/shoreline erosion ( i.e., varying levels of uplift and subsidence, as described below) (Factor A). Additional threats to the species include development (Factor A) and herbivory/disease (Factor C); however, our analysis shows that while these threats may be impacting individual beach layia plants, they are not having species-wide impacts. For a full description of all identified threats, refer to chapter 8 of the SSA report (Service 2018, pp. 38-48).

Areas described as overstabilized in this document (and discussed in detail in section 8.2.1 of the SSA report (Service 2018, pp. 41-43)) have high vegetation cover and restricted sand movement either due to presence of nonnative, invasive species or presence of species (native or nonnative) that move in after an area is stabilized by invasive species. Overstabilization caused by invasive species, as defined here, is a different ecological process from natural succession in which native vegetation changes over time from the semi-stable dune mat community to more stabilized communities. Both overstabilization and natural succession have a negative impact on the abundance of beach layia because the species requires open sand to colonize an area (see Ecology, Habitat, and Resource Needs of Beach Layia, above). At this time, the best available information indicates that large portions of the range of beach layia have been made unsuitable by overstabilization and competition with both native and nonnative invasive species (Service 2017 pp. 41-43). However, dune systems that are naturally succeeding often still contain areas of semi-stable dunes—although they may shift over time—that are suitable for beach layia. One population—the Freshwater Lagoon Spit—is the only beach layia population that is currently impacted by stabilization caused by native species, i.e., red fescue (Samuels 2017, pers. comm.). Although no measures are in place to address the stabilization effects, there is an experimental project underway to remove native species in order to create more suitable habitat for beach layia (Samuels 2017, pers. comm.).

The remainder of beach layia's range is subject to past introduction and invasion of its habitat by a variety of nonnative, invasive plant species (Service 1998, p. 45), which is one reason why the species was listed as an endangered species (57 FR 27848; June 22, 1992). These nonnative species adversely affect the long-term viability of coastal dune plants, including the entire distribution of beach layia (with the exception of the Freshwater Lagoon Spit population, as described above), through either direct competition for space (56 FR 12323; March 22, 1991); stabilization of the dunes (56 FR 12318; March 22, 1991); and in some cases, enrichment of the soils, which then stimulate invasion by other aggressive species (Maron and Connors 1996, p. 309; Pickart et al. 1998, pp. 59-68). Nonnative, invasive species are currently present at all populations throughout the species' range, although to a lesser degree at the Lanphere Dunes, Ma-le'l North, and Ma-le'l South subpopulations; the Mouth of Mattole River population; and Asilomar State Beach and Indian Village Dunes populations due to restoration activities. The most common invasive species (European beachgrass, iceplant, yellow bush lupine, and ripgut brome) in dune systems throughout the range of beach layia are described in section 8.2.1.1 of the SSA report (Service 2018, pp. 42-43). The high level of invasion throughout the range of beach layia suggests these taxa will continue to invade beach layia habitat ( i.e., invasive plants occur at varying densities within and adjacent to all extant populations), necessitating routine and long-term management actions. Many of the invasive plants have been mapped within the various dune systems occupied by beach layia (Johns 2009, p. 24; Point Reyes 2015, p. i; Mantech SRS Technologies 2018, p. 1), and there have been efforts for their removal or control (Service 2011, p. 10; Point Reyes 2015, p. 105; Mantech SRS Technologies 2018, p. 1). However, much potentially suitable habitat for beach layia remains to be restored, as identified in the 1992 recovery plan ( i.e., the portion of the species' range where the majority of occurrences are including the Mouth of the Mad River, the greater part of the North and South Spits of Humboldt Bay, Elk River Spit, the North and South Spits of the Eel River, McNutt Gulch, as well as Point Reyes, Signal Hill Dunes, and Vandenberg AFB (recovery criterion 2, see section 11.0)), in addition to routine maintenance to control this threat into the future.

Overall, overstabilization and competition with native or nonnative, invasive species are reducing the availability of sandy soils with sparse vegetative cover, causing beach layia throughout its range to compete for open sandy space, sunlight, and rainfall during its winter germination period. Efforts at some locations to remove invasive species (such as, but not limited to, European beachgrass, iceplant, yellow bush lupine, and ripgut brome) that are adversely affecting resources needed by beach layia are reducing these negative influences and thus have improved the species' current resiliency at many populations. However, the ability of land managers to continue manage the ongoing threat of invasive species into the future is uncertain.

Changes in weather patterns have been observed in recent years and are predicted to continue (Frankson et al. 2017, p. 1). This can include extreme events such as multi-year droughts or heavy rain events (Frankson et al. 2017, pp. 2-5). All of these have the potential to remove, reduce, and degrade habitat, as well as remove individual plants, reduce germination and survival rates, and reduce fecundity. The best available scientific and commercial information at this time does not indicate how historical changes in climate may have affected beach layia, although recent drought conditions have had a negative impact on population size (BLM 2016a, p. 6; ManTech SRS Technologies 2016, p. 29).

The best available information indicates that recent drought conditions (2012-2016) negatively influenced the abundance of beach layia ( e.g., lack of rainfall for germination, reduced fecundity, desiccation during dry periods in the growing season) across the species' range (BLM 2016a, p. 6; BLM 2014b, p. 16; Pickart 2017, pers. comm.; Gray 2017, pers. comm.; ManTech SRS Technologies 2018, p. 9). A subsequent increase in abundance was seen in 2017, corresponding with the increase in rainfall at the end of this multi-year drought period, indicating the seedbank for the species has some ability to withstand multi-year droughts. However, at this point in time the full longevity of the seedbank is unknown; therefore, it is impossible to predict whether the species could withstand even longer drought periods or whether drought conditions could reach a point at which the seedbank would no longer be viable. All that can be reasonably concluded from the available information is that multi-year droughts have a negative effect on beach layia abundance, reducing above-ground vegetative growth, and that the seedbank for the species appears to be able to withstand at least four years of consecutive drought and then regenerate new vegetative growth once more normal rainfall patterns return (noting a tendency for the species to experience a spike in abundance following a drought).

The Intergovernmental Panel on climate change states it is likely that the intensity and duration of droughts will increase on a regional to global scale (IPCC 2014, p. 53). We used the California Climate and Hydrology Change Graphs, a graphing tool that presents climate and hydrology data from the California Basin Characterization Model (BCM) dataset (Flint et al. 2013, entire), to analyze the potential impact of drought on beach layia in the future. Four future climate scenarios demonstrate a range of precipitation and temperatures projected by the 18 scenarios available from the BCM. We chose to use the climatic water deficit calculations because they take into account changes in air temperature, solar radiation, and evapotranspiration, and can be used as an estimate of drought stress on plants (Stephenson 1998, p. 857). There are large uncertainties with respect to future precipitation levels (some scenarios predict a hot dry future while others predict a hot wet future). While climatic water deficit magnitudes vary across the models, the trends are consistent in that all projections indicate increasing values. Climatic water deficit values, both historical (1931-2010) and projected (2021-2050), are higher in watersheds in the Central and South Coast Ecoregions. The South Coast Ecoregion has the highest values and is therefore considered to be the most vulnerable to stress caused by drought, followed by the Central Coast Ecoregion, and then the Point Reyes population at the southern end of the North Coast Ecoregion. The three watersheds in Humboldt County (which encompass all of the North Coast Ecoregion populations except Point Reyes) are least likely to be stressed by drought, both currently and into the future, but the trend in climatic water deficit is still increasing. See section 8.2.2.1 of the SSA report for additional discussion regarding impacts associated with drought.

While no definitive conclusions can be drawn about the potential for drought alone to result in permanent loss of beach layia populations, a compounding factor with changing climate conditions is the relationship to invasive plant species. Many of the invasive species that negatively affect beach layia or its habitat, such as European beachgrass and iceplant, are drought tolerant (Hertling and Lubke 2000, pp. 522-524; Hilton et al. 2005, pp. 175-185, Earnshaw et al. 1987, pp. 421-432). During a multi-year drought, it is possible that invasive species could persist and spread into areas where beach layia declined, resulting in less open space habitat for germination of beach layia when a sufficient amount of rainfall returns (assuming the seedbank survives).

The high level of abundance of beach layia in 2017 suggests that the potential for invasive species to take over habitat and exclude beach layia regeneration is not a significant threat, at least for drought periods up to four years in duration. However, the likelihood of the increased duration and intensity of drought into the future increases the potential for this outcome, which could be particularly problematic for those populations in the Central and South Coast Ecoregions.

In addition to drought, rising sea levels caused by changing climate conditions can lead to removal or reduction of habitat, and the removal of individual plants, seedbanks, and whole populations. However, an analysis conducted using RCP 8.5 and local sea level rise projections for 2050 based on the methodology developed by Kopp et al. (2014, pp. 384-393) as presented in Rising Seas in California (Griggs 2017, entire) suggests that rising seas are not likely to significantly influence beach layia into the foreseeable future, and it is unknown how changes in sea levels may have affected the species in the past. Likewise, projections for the lower emission scenario indicate that rising seas under RCP 4.5 are not likely to negatively influence beach layia (Griggs 2017, entire). For more information on the analysis conducted on the effects of sea level rise, please refer to section 10.3.2 of the SSA (Service 2017 pp. 52-58)

Erosion of soil in a dune system can be caused by many factors, and any form of erosion or heavy soil disturbance can result in the removal of beach layia habitat, individual plants, and seedbank. Erosion and disturbance of beach layia habitat discussed in this document is associated with high levels of disturbance caused by pedestrian, equestrian, OHV, and grazing activity.

First, the best available information suggests that trampling from both pedestrian and equestrian activities occur at insignificant levels at most populations throughout beach layia's range, with the possible exception of the Signal Hill Dunes population on the Monterey Peninsula (Service 2011, p. 11), although that current level of impact is unknown. Monitoring data and anecdotal evidence consistently indicate a strong preference by beach layia for moderately disturbed habitat adjacent to roads and trails (whether pedestrian or equestrian) in what otherwise would be unoccupied habitat (Service 2011, p. 11). Dispersed equestrian use has been allowed at the South Spit Humboldt Bay population since BLM began management of the area in 2002, and beach layia abundance has remained high, suggesting that dispersed equestrian use, at least where large areas of occupied habitat are concerned, is compatible with large populations (Wheeler 2017, pers. comm.).

Second, OHV activity within beach layia habitat across the species' range is significantly reduced since the time of listing. Most occupied habitat is restricted from OHV use with the exception of five populations in Humboldt County. Monitoring data from one recent study confirm lower beach layia abundance within riding areas as compared to preserved areas that are closed to OHV use and managed to reduce threats to the species (BLM 2016a; BLM 2016b; Hassett 2017, pers. comm.; see also figure 17 in the SSA report). Additionally, within the OHV riding area, beach layia is restricted to the edges of trails, and the remainder of the habitat is overstabilized and dominated by invasive vegetation. It is possible that the higher beach layia abundance in the protected areas of the study could have more to do with invasive species management than eliminating the direct impacts of OHV use (Wheeler 2017, pers. comm.).

Finally, livestock trampling was identified as a threat when beach layia was listed (57 FR 27848). Livestock trampling previously occurred at the Mouth of Mattole River population, but fencing was replaced in 1997, thereby eliminating this threat (BLM 2014a, p. 5). Additionally, livestock were removed from the South Spit Eel River population that occurs on the Wildlands Conservancy Preserve (Allee 2018, pers. comm.). At this time, the only populations that are exposed to livestock are the McNutt Gulch population (Imper 2018, pers. comm.) and some portions of the Point Reyes population (Parsons 2018, pers. comm.). Observations made at Point Reyes suggest that livestock trampling is negatively impacting portions of the population there (Goldsmith 2018, personal observation). The current status of the McNutt Gulch population is unknown.

Overall, the best available scientific and commercial information suggests that human-induced disturbances are not resulting in significant, negative, population-wide or rangewide impacts given most beach layia habitat is under some level of protection and responds well to slight disturbance. However, some risk to the species' viability in the North Coast Ecoregion populations remains for some populations in the form of trampling or crushing of individuals plants.

Uplift or subduction ( i.e., the geological process that occurs at convergent boundaries of tectonic plates where one plate moves under another and is forced to sink due to gravity into the mantle) both during and between seismic events can affect whether a beach/shoreline is prograding ( i.e., advancing toward the sea as a result of the accumulation of waterborne sediment) or eroding. Vertical land movement (VLM) is site specific and is influenced by a number of factors. A study conducted in the Humboldt Bay area indicates that direction and magnitude differ depending on location, although most areas around the bay, including areas near beach layia habitat, are subsiding (Patton et al. 2017, pp. 26-27). Removal or reduction of both habitat and individual plants can be caused by sea level rise associated with subduction while uplift may counterbalance those effects. Sudden movements associated with earthquakes can cause tsunamis, which have the potential to remove habitat and whole populations in one event.

As with many ecosystems, dunes often undergo periods of cyclic stabilization and rejuvenation (Pickart and Sawyer 1998, p. 4). Rejuvenation events can be the result of changes in relative sea level, which in turn are attributed, at least in the past, to tectonic activity, including tsunamis (such as the following, as cited in Pickart and Sawyer 1998: Vick 1988, Pacific Watershed Associates 1991, Clarke and Carver 1992, and Komar and Shih 1993). Both uplift and subsidence can theoretically trigger reactivation of dunes, with the former potentially building or expanding dunes through increased sediment supply, while the latter can destroy dunes through increased wave action or limit the expansion of new dunes (Pickart and Sawyer 1998, p. 4). The southern end of the North Spit Humboldt Bay population and the South Spit Eel River population are particularly vulnerable to shoreline erosion (McDonald 2017, pp. 10-13).

The San Andreas Fault, which runs along the eastern edge of Point Reyes and runs parallel to the Monterey Peninsula, regularly experiences plate movements. A vulnerability assessment conducted for Point Reyes indicates that the portion of shoreline where beach layia occurs has a high to very high vulnerability index (Pendleton et al. 2005, pp. 3, 15), suggesting that this population is subject to removal of occupied habitat caused by shoreline erosion. Similarly, the Monterey coastline where beach layia occurs has been shaped by varying levels of uplift and subsidence (Revell Coastal 2016, p. 2-1). The dunes at Asilomar are less vulnerable to erosion compared to those on the northern portion of the peninsula (EMC Planning Group 2015, figure 5). The best available information does not suggest any current or historical VLM or shoreline erosion for the Monterey Peninsula; thus, areas where beach layia occur appear relatively safe. No VLM/shoreline erosion information is available for Vandenberg AFB. While some populations are more at risk than others to lose habitat via VLM based on historical data, coastal dune habitat will always be threatened by the potential loss of large expanses of habitat caused by subduction events or tsunami.

While all of the threats discussed above have the potential to negatively influence the resiliency of beach layia populations, the threat that currently has the greatest negative impact on populations or the species rangewide is overstabilization/competition with invasive species. This threat reduces abundance of beach layia more than any other and has the potential to have significant negative impacts to populations across the range of the species by reducing the amount of open sandy areas with sparse vegetation that it needs. Although habitat has been restored for some populations, the threat of invasive species expanding their presence throughout the species' range is always present, especially since most restored sites are near currently invaded areas, and has the potential to increase if changing climate conditions result in longer duration and higher intensity multi-year droughts. Efforts to remove nonnative or native invasive species and reverse the effects of overstabilization are ongoing throughout the species' range (Martinez et al. 2013, p. 159; BLM 2014b, p. 17; ManTech SRS Technologies 2016, p. 1; California Department of Parks and Recreation (CDPR) 2004, p. 3-14). However, these efforts are time consuming and costly. There are current management plans that include restoration for some populations, however, many populations have no plans for restoration and dedicated funding into the future is only available for the Asilomar State Beach population. Thus, this threat is not considered to be causing a significant negative influence across the entire range of beach layia at this time, but is reasonably likely to in the foreseeable future.

Uncertainties regarding the species' ecology and current impacts (or level of impacts) to beach layia or its habitat include (but are not limited to): Defined timelines for implementation of restoration and ongoing control of nonnative, invasive species; limiting factors for the populations in Monterey County; seedbank longevity; and the optimal disturbance regime to maximize recovery efforts (see also section 9.1.2 in the SSA report (Service 2018, p. 50)).

For the purpose of this proposed rule, we define viability as the ability of the species to sustain populations in the wild over time. This discussion explains how the stressors associated with overstabilization/competition with invasive species, changing climate conditions, erosion/high level of disturbance ( e.g., recreation), and vertical land movement/shoreline erosion will influence resiliency, redundancy, and representation for beach layia throughout its current known range using the most likely plausible scenario. The future timeframes evaluated include a range of times that cover a variety of management plans that are expected to last the next 10 to 20 years and predictions for local sea level rise in the future through the year 2050. Thus, foreseeable future for this analysis is a range from approximately 15 to 30 years from current.

Suitable occupied and unoccupied habitat is limited to coastal dune systems that are subject to modification or destruction by overstabilization/competition with nonnative and native invasive species, changing climate conditions (which can result in drought and sea level rise), erosion from various disturbance activities ( e.g., recreation), and VLM/shoreline erosion (see section 6.2 in the SSA report (Service 2018, pp. 14-24)). Significant habitat modification in any portion of beach layia's range could lead to reduced population size, growth rate, and habitat quality for the affected population(s), thus resulting in a higher risk level for the species' viability into the future. Although the threats described above are generally spread throughout the species' range, the best available data indicate that the most vulnerable populations, given current and potential future impacts to availability of sparsely vegetated native dune mat habitat subject to periodic disturbance during the dormant season, include:

• North Coast Ecoregion —Freshwater Lagoon Spit, portions of North Spit Humboldt Bay (including the Mad River Beach, Bair/Woll, Manila South, and Samoa/Eureka Dunes subpopulations), portions of South Spit Humboldt Bay, Elk River, North Spit Eel River, South Spit Eel River, McNutt Gulch, and unrestored portions of Point Reyes;

• Central Coast Ecoregion —Signal Hill Dunes; and

• South Coast Ecoregion —Vandenberg AFB.

This includes two of the three largest population centers in the North Coast Ecoregion, of which the North Spit Humboldt Bay harbors greater than 75 percent of the species' abundance rangewide (see table, above). Depending on the severity of the impacts to the resources needed by beach layia, populations or portions thereof could be lost in the future.

Populations in areas where habitat is limited or unsuitable in the future (see section 8.1 in the SSA report (Service 2018, pp. 39-41)) are likely to be more susceptible to threats that continue or worsen in the future, potentially resulting in reduced population(s) size and growth rate. Loss of habitat caused by invasion of nonnative, invasive species is the most prominent negative influence on beach layia into the future.

The populations in the Central and South Coast Ecoregions are at the greatest at risk of declines in abundance in the future based on their small size, limited distribution and expected continued threats in the future, particularly competition with nonnative, invasive species and drought stress. No projected drought trends are available; however, extreme events, including multi-year droughts, are expected to increase in likelihood into the future (Frankson et al. 2017, pp. 2 -5) and an analysis on climatic water deficit shows an increasing trend throughout the range of the species into the future, particularly those in the Central and South Coast Ecoregions (See section 8.2.2.1 of the SSA report).

Overall, it is likely that the most significant threat to beach layia's resiliency in the future will be continued overstabilization/competition with invasive species and, to a lesser extent, changing climate conditions, erosion/high levels of disturbance and VLM/shoreline erosion. These threats are likely to result in a reduction in abundance of beach layia throughout its range stemming from removal, reduction, and degradation of habitat, and reduced abundance, such as from reduced germination, fecundity, and survival rates.

Many populations are likely to see a reduction in abundance of beach layia because there are no existing management activities or no management plans that provide long-term assurances that management activities will continue into the future to improve existing suboptimal habitat conditions ( e.g., invasive species), especially if the species is delisted. Very few populations have been managed in such a way that the natural processes that create habitat for the species are able to operate unhindered ( i.e. Lanphere and Ma-le'l). The remaining populations are dependent on continued management into the future to improve habitat conditions.

The low abundance and limited distribution of the species in the Central and South Coast Ecoregions make those populations particularly vulnerable to stochastic events, including, but not limited to, drought. It is likely that the intensity and duration of droughts will increase on a regional to global scale (IPCC 2014, p. 53). The high likelihood of increased intensity and duration of droughts in California (Frankson et al. 2017, pp. 2-5) is expected to negatively influence beach layia populations throughout the species' range because rain is required for germination, but particularly in the Central and South Coast Ecoregions due to high projections of climatic water deficit in those watersheds. A compounding factor in the analysis of drought effects on beach layia is that two of the most common nonnative, invasive species that compete for habitat with beach layia—European beachgrass and iceplant—are both drought tolerant (Hertling and Lubke 2000, pp. 522-524; Lechuga-Lago et al. 2016, pp. 8-9).

To characterize beach layia's viability and demographic risks, we consider the concepts of resiliency, redundancy, and representation, and how the threats may negatively impact the resource needs that it relies on for survival and reproduction. Taking into account the impacts of the most significant threats and the potential for cumulative impacts to the resources that the species needs, our projections for future conditions are that beach layia's ability to withstand and bounce back from stochastic events (resiliency) is currently high and likely to remain so into the future. This resiliency is demonstrated by the increased abundance at most populations during a heavy rainfall year ( e.g., 2017; table 2 in the SSA report (Service 2018, pp. 22-24)) that followed four years of drought conditions. However, this rebound in 2017 did not occur throughout all of the species' range, including at some of the smaller populations.

Of greater concern for beach layia's viability into the future is that the populations in the Central and South Coast Ecoregions are significantly smaller than the populations in the North Coast Ecoregion, thus decreasing the species' representation and redundancy in a large proportion of the species' range if these populations are lost in the future. The smaller abundance and acreage of these populations compared to the populations in the North Coast Ecoregion increases the chances of population loss in the foreseeable future, especially given the likelihood that:

(1) Overstabilization/competition with invasive species is not adequately being addressed ( e.g., lack of staff and funding for invasive species control at some locations).

(2) Drought conditions are expected to worsen (continued multi-year droughts that result in reduced annual precipitation levels) across the species' range, but particularly in the Central and South Coast Ecoregions.

(3) Drought conditions can possibly benefit the abundance and spread of drought-tolerant invasive plants that are already present and adversely impacting the resources that beach layia relies on.

See section 10.3 in the SSA report (Service 2018, pp. 52-59) for additional analysis and discussion of factors influencing the viability of beach layia in the future. Taking into account the impacts of the most significant threats and the potential for cumulative impacts to the resource needs, our projections for future conditions are that beach layia's ability to withstand and bounce back from stochastic events (resiliency) is currently high and likely to remain so into the future. Additionally, multiple populations currently spread across a wide geographic range suggest high redundancy and representation. However, at this time, the populations in the Central and South Coast Ecoregions have lower abundance than the North Coast Ecoregion populations. Given the lower abundance compared to the rest of the species range and the continued threats into the foreseeable future, the species overall ability to maintain adequate representation and redundancy into the future is low.

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 is no longer 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.

In 1998, we finalized the Seven Coastal Plants and the Myrtle's Silverspot Butterfly Recovery Plan, which included recovery objectives for beach layia (recovery plan; Service 1998, pp. 43-48). All of the downlisting criteria and a portion of the delisting criteria included in the recovery plan (Service 1998) applied to the entire suite of dune plant species covered by the plan. As such, some interpretation of those criteria may be warranted to account for the specific life history or other circumstances of the species in question. Therefore, we have based our analysis on the intent of the criteria as they relate to the five factor analysis for beach layia. Based on our review of the recovery plan and the information obtained from the various management activities, surveys, and research that have occurred to date, we conclude that the status of beach layia is improved throughout its range as a result of significant protections to preserve or conserve habitat, along with land use decisions and management activities implemented by many landowners undertaken since the time of listing. See appendix A in the SSA report for a detailed account of existing regulatory mechanisms and voluntary conservation efforts (Service 2018, pp. 75-80). Our analysis indicates that the intent of the downlisting criteria has been met. Our summary analysis of the downlisting criteria follows:

Downlisting Criterion 1 (addresses Listing Factors A, D, and E): Habitat occupied by the species that is needed to allow delisting has been secured, with long-term commitments and, if possible, endowments to fund conservation of the native vegetation.

There has been significant improvement in the security of habitat occupied by beach layia since the recovery plan was prepared, including land acquisition by Federal agencies, State and local agencies, and nongovernmental organizations; adoption of local coastal plans under the California Coastal Act; and implementation of management plans that address the needs of the species. Of the estimated 595 ac (240 ha) of dunes habitat currently occupied by beach layia, approximately 91 percent is owned by Federal and State governmental entities or other land owners with existing resource management direction precluding development within sensitive dunes habitat. Despite the fact that not all entities managing beach layia habitat have been able to demonstrate their ability to continue management into the future, especially if the species is delisted, due to the significant amount of occupied dune habitat that is now on protected lands ( i.e., long-term commitments of approximately 32 years, including resource management plans that contain a restoration component), and state and federal mandates to conserve the species as long as it remains listed, we conclude that this recovery criterion has been adequately met.

Downlisting Criterion 2 (in part, addresses Listing Factors A, D and E): Management measures are being implemented to address the threats of invasive species, pedestrians, and OHVs at some sites.

The Service, BLM, National Park Service (Redwood National Park, Point Reyes), and several other land managers in the northern portion of the range, and the CDPR, Department of Defense, and several other managers in the southern portion of the range have all instituted relevant management policies since the recovery plan was completed or since the species was listed. Those policies have reduced, and in many cases eliminated, the threats to beach layia posed by pedestrians and OHV activity, as well as reduced to a certain degree the threat of native and nonnative, invasive species. Because of the many management measures currently implemented across the range of beach layia to address the threats of pedestrians and OHVs, and the work conducted thus far to address the ongoing threat of invasive species, we conclude that this criterion has been adequately met.

Downlisting Criterion 3 (in part, addresses Listing Factor E): Monitoring reveals that management actions are successful in reducing threats of invasive, nonnative species.

Management actions over the past 12 years have reduced the threats from native and nonnative, invasive species, at least into the foreseeable future. Because of these successful invasive species management measures, we conclude that this criterion has been adequately met.

Downlisting Criterion 4 (in part, addresses Listing Factors A, D and E): Additional restored habitat has been secured, with evidence of either natural or artificial long-term establishment of additional populations, and long-term commitments (and endowments where possible) to fund conservation of the native vegetation.

Commitments by land managers across beach layia's range, as described under Downlisting Criterion 1, above, have resulted in secured habitat ( i.e., protected from development although native or nonnative, invasive species continue to reduce the availability of sandy soils with sparse vegetative cover) in multiple geographic areas since the recovery plan was completed. These include several protected areas on Federal, State, and local public lands, as well as land acquisition and protection ( e.g., conservation easements) by nongovernmental organizations (protections are described in each population descriptions found in section 7.0 of the SSA report (Service 2018, pp. 25-38)). Additionally, restoration has been conducted with a commensurate response by beach layia ( e.g., the creation of an Endangered Species Protection Area within the Samoa/Eureka Subpopulation, North Spit Humboldt Bay, Point Reyes National Seashore, Vandenberg AFB). As a result, we conclude that this criterion has been adequately met.

The intent of the delisting criteria has not yet been met for beach layia. The overarching goal for delisting beach layia includes removal of substantially all of the nonnative, invasive plants on the dunes where it occurs and securing written assurance of long-term support for continued management of the dunes, and monitoring (Service 1998, pp. 92-93). The overarching goal is to restore natural processes that have been disrupted by the presence of nonnative, invasive species to dune systems so that beach layia and other native plants adapted to those environments can persist into 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 an endangered species or a threatened species. The Act defines “endangered species” as a species “in danger of extinction throughout all or a significant portion of its range,” and “threatened species” as a species “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The Act requires that we determine whether a species meets the definition of “endangered species” or “threatened species” because of any of the following factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) The inadequacy of existing regulatory mechanisms; or (E) Other natural or manmade factors affecting its continued existence.

After evaluating threats to the species under the section 4(a)(1) factors, we examined the best scientific and commercial information available regarding the past, present, and future threats faced by the species. We reviewed information presented in the 2011 5-year review (Service 2011, entire), additional information that became available since the time our 2011 5-year review was completed, and other available published and unpublished information. We also consulted with species experts and land management staff who are actively managing for the conservation of beach layia.

We examined the following threats that may be affecting beach layia: Development (Factor A), herbivory/disease (Factor C), overstabilization/competition with invasive species (Factor A), changing climate conditions (Factor E), erosion/high level of disturbance ( e.g., recreation) (Factor A), and vertical land movement/shoreline erosion (Factor A). We found no threats associated with overutilization for commercial, recreational, scientific, or educational purposes, such as (but not limited to) collection of plants for scientific research (Factor B). We also considered and discussed existing regulatory mechanisms (Factor D) and voluntary conservation efforts as they relate to the threats that may affect beach layia (summarized within each threat discussions within chapters 8 and 10, and detailed in appendix A, of the SSA report, pp. 75-80).

The most significant factors influencing the viability of beach layia populations at the time of listing were displacement by nonnative, invasive vegetation; recreational uses such as OHV activities and pedestrians; and urban development (June 22, 1992, 57 FR 27848; Service 1998, p. 45). Currently, our analysis indicates that the level of impacts to beach layia and its habitat that placed the species in danger of extinction in 1992 ( i.e., human-induced disturbances including OHV activity, agriculture, pedestrians, development, etc.) have substantially been reduced as a result of the significant commitments made by landowners to conserve lands and institute restoration activities at multiple populations throughout the species' range. However, the extensive spread of nonnative, invasive vegetation throughout the species' range remains a significant negative influence on the viability of the species. Additionally, the ability of the majority of landowners to continue management of habitat for the species into the future is uncertain, particularly if the species were to be delisted.

At the time of the 5-year review (2011) and currently, we have become aware of the potential for anthropogenic climate change to affect all biota, including beach layia. Available information indicates that temperatures are increasing and annual rainfall is reduced during some years within beach layia's range, resulting in prolonged drought conditions that negatively influence beach layia abundance. Beach layia's response to these changes should be monitored into the future.

Of the factors identified above, overstabilization/competition with invasive species (Factor A), changing climate conditions (Factor E), erosion/high level of disturbance ( e.g., recreation) (Factor A), and vertical land movement/shoreline erosion (Factor A) are the most significant threats to the species currently or into the foreseeable future. After review and analysis of the best scientific and commercial information available regarding the threats as they relate to the five statutory factors, we find that this information does not indicate that these threats are affecting individual populations or the species as a whole across its range to the extent that they currently are of sufficient imminence, scope, or magnitude to rise to the level that beach layia is in danger of extinction throughout all of its range. However, our review of information indicates that, while the overall range of the species has slightly increased since the time of listing ( i.e., discovery of the northern-most population—Freshwater Lagoon Spit), the anticipated trajectory of the identified threats into the foreseeable future is likely to result in a condition whereby the abundance and density of the species across the majority of its range (including the population stronghold areas in a portion of Humboldt County) are likely to be negatively impacted.

Specifically, the best available information indicates there is a likelihood of population- and rangewide-level impacts to beach layia abundance in the foreseeable future, despite beneficial management actions at some of the populations at this time. Beach layia populations across the species' range are likely to be negatively influenced predominantly from overstabilization/competition with invasive species, in conjunction with predicted drought conditions. Our analysis reveals that one or more threats continue to act on the species at the population level, likely contributing to low abundance in most years that do not experience substantial rainfall. Additionally, there is a lack of range expansion at some small populations ( e.g., Asilomar State Beach, Indian Village Dunes, and Signal Hill Dunes populations), likely contributing to insufficient recruitment necessary for stable or, ideally, increasing populations. With respect to the remaining populations that are experiencing OHV and other recreation activities (noting this threat is substantially reduced with the exception of a few areas in the North Coast Ecoregion), the existing regulatory mechanisms are likely insufficient to manage the beach layia habitat specifically at the Signal Hill Dunes population. Overall, some disturbance appears compatible with large populations (Wheeler 2017, pers. comm.)

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

Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range. The court in Center for Biological Diversity v. Everson, 2020 WL 437289 (D.D.C. Jan. 28, 2020) ( Everson ), vacated the aspect of the 2014 Significant Portion of its Range Policy that provided that the Services do not undertake an analysis of significant portions of a species' range if the species warrants listing as threatened throughout all of its range. Therefore, we proceed to evaluating whether the species is endangered in a significant portion of its range—that is, whether there is any portion of the species' range for which both (1) the portion is significant; and, (2) the species is in danger of extinction in that portion. Depending on the case, it might be more efficient for us to address the “significance” question or the “status” question first. We can choose to address either question first. Regardless of which question we address first, if we reach a negative answer with respect to the first question that we address, we do not need to evaluate the other question for that portion of the species' range.

Following the court's holding in Everson, we now consider whether there are any significant portions of the species' range where the species is in danger of extinction now ( i.e., endangered). In undertaking this analysis for beach layia, we choose to address the status question first—we consider information pertaining to the geographic distribution of both the species and the threats that the species faces to identify any portions of the range where the species is endangered.

The statutory difference between an endangered species and a threatened species is the time horizon in which the species becomes in danger of extinction; an endangered species is in danger of extinction now, while a threatened species is not in danger of extinction now but is likely to become so in the foreseeable future. Thus, we considered the time horizon for the threats that are driving the beach layia to warrant its classification as a threatened species throughout all of its range. We examined the following threats: Overstabilization/competition with invasive species, changing climate conditions, erosion/high level of disturbance ( e.g., recreation), and vertical land movement/shoreline erosion, including cumulative effects. While some of these threats currently exist throughout the range of the species ( e.g., the presence of invasive species, recreational impacts), it is the anticipated future increase in overstabilization/competition with invasives, exacerbated by climate change-influenced drought, that is driving the threatened status of the species.

The best scientific and commercial data available indicate that the time horizon on which this heightened threat to beach layia from drought-influenced overstabilization/competition with invasive species, and beach layia's negative response to that heightened threat, is likely to occur is the foreseeable future. In addition, the best scientific and commercial data available do not indicate that this heightened threat is more immediate in any portions of the species' range. Therefore, we determine that the beach layia is not in danger of extinction now in any portion of its range, but that the species is likely to become in danger of extinction within the foreseeable future throughout all of its range. This 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), and Center for Biological Diversity v. Jewell, 248 F. Supp. 3d, 946, 959 (D. Ariz. 2017).

Therefore, on the basis of the best available scientific and commercial information, we propose to reclassify beach layia as a threatened species throughout all of its range in accordance with sections 3(20) and 4(a)(1) of the Act.

Our review of the best available scientific and commercial information indicates that beach layia meets the definition of a threatened species. Therefore, we propose to downlist beach layia from an endangered species to a threatened species in accordance with sections 3(20) and 4(a)(1) of the Act.

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

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

The Service has developed a species-specific 4(d) rule that is designed to address the beach layia specific threats and conservation needs. Although the statute does not require the Service to make a “necessary and advisable” finding with respect to the adoption of specific prohibitions under section 9, we find that this regulation is necessary and advisable to provide for the conservation of the beach layia. As discussed in the Determination of Beach Layia Status section, the Service has concluded that beach layia is at risk of extinction within the foreseeable future primarily due to overstabilization/competition with invasive species and drought conditions, in addition to loss of habitat and plants at some locations from recreational disturbance and erosion ( e.g., shoreline erosion, vertical land movement). The provisions of this 4(d) rule would promote conservation of beach layia by making it unlawful to remove and reduce to possession beach layia from Federal land. The provisions of this rule are one of many tools that the Service will use to promote the conservation of the beach layia. This proposed 4(d) rule would apply only if and when the Service makes final the listing of the beach layia as a threatened species.

This proposed 4(d) rule would provide for the conservation of beach layia by prohibiting the following activities, except as otherwise authorized or permitted: For any person subject to the jurisdiction of the United States to remove and reduce to possession beach layia from areas under Federal jurisdiction; maliciously damage or destroy the species on any area under Federal jurisdiction; or remove, cut, dig up, or damage or destroy the species on any area under Federal jurisdiction in knowing violation of any law or regulation of any State or in the course of any violation of a State criminal trespass law.

This proposed 4(d) rule would enhance the conservation of beach layia by prohibiting detrimental activities and allowing activities that would be beneficial to the species.

The proposed 4(d) rule only addresses Federal requirements under the Act and would not change any prohibitions provided for by State law. As explained above, the provisions included in this proposed 4(d) rule are necessary and advisable to provide for the conservation of beach layia. Nothing in this proposed 4(d) rule would change in any way the recovery planning provisions of section 4(f) of the Act, the consultation requirements under section 7 of the Act, or the ability of the Service to enter into partnerships for the management and protection of beach layia. However, the consultation process may be further streamlined through planned programmatic consultations between Federal agencies and the Service for these activities. We ask the public, particularly State agencies and other interested stakeholders that may be affected by the proposed 4(d) rule, to provide comments and suggestions regarding additional guidance and methods that the Service could provide or use, respectively, to streamline the implementation of this proposed 4(d) rule (see Information Requested, above).

As discussed in the Determination of Beach Layia Status (above), several factors are affecting the status of beach layia. A range of activities have the potential to impact the beach layia, including: The loss of habitat and plants at some locations from recreational disturbance. Regulating these activities will help preserve the species' remaining populations, slow their rate of decline, and decrease synergistic, negative effects from other stressors.

We may issue permits to carry out otherwise prohibited activities, including those described above, involving threatened plants under certain circumstances. Regulations governing permits for threatened plants are codified at 50 CFR 17.72, which states that “the Director may issue a permit authorizing any activity otherwise prohibited with regard to threatened species.” That regulation also states, “The permit shall be governed by the provisions of this section unless a special rule applicable to the plan is provided in §§ 17.73 to 17.78.” We interpret that second sentence to mean that permits for threatened species are governed by the provisions of § 17.72 unless a special rule provides otherwise. We recently promulgated revisions to § 17.71 providing that § 17.71 will no longer apply to plants listed as threatened in the future. We did not intend for those revisions to limit or alter the applicability of the permitting provisions in § 17.72, or require that every special rule spell out any permitting provisions that apply to that species and special rule. To the contrary, we anticipate that permitting provisions would generally be similar or identical for most species, so applying the provisions of § 17.72 unless a special rule provides otherwise would likely avoid substantial duplication. Moreover, this interpretation brings § 17.72 in line with the comparable provision for wildlife at 50 CFR 17.32, in which the second sentence states, “Such permit shall be governed by the provisions of this section unless a special rule applicable to the wildlife, appearing in §§ 17.40 to 17.48, of this part provides otherwise.” Under 50 CFR 17.72 with regard to threatened plants, a permit may be issued for the following purposes: scientific purposes, to enhance propagation or survival, for economic hardship, for botanical or horticultural exhibition, for educational purposes, or other purposes consistent with the purposes of the Act. Additional statutory exemptions from the prohibitions are found in sections 9 and 10 of the Act.

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

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 this proposed 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.

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

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-2018-0042, or upon request from the Assistant Field Supervisor, Arcata Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT ).

The primary authors of this proposed rule are the staff members of the U.S. Fish and Wildlife Service Species Assessment Team and the Arcata Fish and Wildlife Office.

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

Why we need to publish a rule. Under the Act, a species may warrant reclassification from endangered to threatened if it no longer meets the definition of endangered (in danger of extinction). The Virgin Islands boa is listed as endangered, and we are proposing to reclassify it as threatened because we have determined it is no longer in danger of extinction. Reclassifications can only be made by issuing a rule. Furthermore, extending the “take” prohibitions in section 9 of the Act to threatened species, such as those we are proposing for this species under a section 4(d) rule, can only be made by issuing a rule. Finally, the change of the scientific name of the Virgin Islands boa in the List from Epicrates monensis granti to Chilabothrus granti, can only be made effective by issuing a rule.

What this rule does. We propose to reclassify the Virgin Islands tree boa from an endangered species to a threatened species with a rule issued under section 4(d) of the Act to provide measures that are necessary and advisable to provide for the conservation of this species. We also change the scientific name in the List to reflect the currently accepted taxonomy.

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 Virgin Islands boa is not currently in danger of extinction and, therefore, does not meet the definition of an endangered species, but is still affected by the following current and ongoing stressors to the extent that the species meets the definition of a threatened species under the Act:

• Habitat loss and fragmentation from human development (Factor A).

• Direct and indirect predation/competition by exotic mammals such as rats, cats, and possibly, to a lesser extent, mongoose (Factor C).

• Stochastic events such as hurricanes and sea level rise, exacerbated by the cumulative effects of climate change (Factor E).

• Intentional harm due to fear of snakes (Factor E).

We are also proposing a section 4(d) rule. When we list a species as threatened, section 4(d) of the Act allows us to issue regulations that are necessary and advisable to provide for the conservation of the species. Accordingly, we are proposing a 4(d) rule for the Virgin Islands boa that would, among other things, prohibit take associated with capturing, handling, trapping, collecting, or other activities, including intentional or incidental introduction of exotic species, such as cats or rats that compete with, prey upon, or destroy the habitat of the Virgin Islands boa. The proposed 4(d) rule would also except from these prohibitions take associated with certain conservation efforts.

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 sought the expert opinions of six appropriate specialists regarding the species status assessment report (SSA). We received responses from five specialists on the SSA report, which informed this proposed rule. The purpose of peer review is to ensure that our listing determinations, critical habitat designations, and 4(d) rules are based on scientifically sound data, assumptions, and analyses. The peer reviewers have expertise in the biology, habitat, and threats to the species.

Because we will consider all comments and information we receive during the comment period, our final determination may differ from this proposal. Based on the new information we receive (and any comments on that new information), we may conclude that the species is endangered instead of threatened, or we may conclude that the species does not warrant listing as either an endangered species or a threatened species. 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 that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments and information from other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested party concerning this proposed rule.

We particularly seek comments on:

(1) Information concerning the biology and ecology of the Virgin Islands boa.

(2) Relevant data concerning any stressors (or lack thereof) to the Virgin Islands boa, particularly any data on the possible effects of climate change as it relates to habitat, and the extent of Territorial protection and management that would be provided to this boa as a threatened species.

(3) Reasons why we should or should not reclassify the Virgin Islands boa from an endangered species to a threatened species under the Act.

(4) Information concerning activities that should be considered under a rule issued in accordance with section 4(d) of the Act (16 U.S.C. 1531 et seq. ) as a prohibition or exception within U.S. territory that would contribute to the conservation of the species. In particular, we are seeking input from experts regarding species restoration and captive propagation practices and related activities, or whether take associated with any other activities should be considered excepted from the prohibitions in the 4(d) rule.

(5) Current or planned activities within the geographic range of the Virgin Islands boa that may either negatively impact or benefit the species.

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

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

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

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

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

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

The Virgin Islands boa was originally listed as an endangered subspecies ( Epicrates inornatus granti ) of the Puerto Rican boa ( Epicrates inornatus at time of listing, now Chilabothrus inornatus ) on October 13, 1970 (35 FR 16047), under the Endangered Species Conservation Act of 1969, and remained listed with the passage of the Act in 1973. In 1979, we published a technical correction (44 FR 70677, December 7, 1979) revising the scientific name of the Virgin Islands boa from Epicrates inornatus granti to Epicrates monensis granti. A recovery plan for this species was completed in 1986 (Service 1986, entire) and updated in September 2019. The most recent 5-year review, completed in 2009, recommended reclassifying the Virgin Islands boa to a threatened species due to the population stabilizing (Service 2009, entire). Based on this recommendation, we initiated a species status assessment (SSA) and completed an SSA report in 2018 (Service 2018, entire).

A species status assessment (SSA) team prepared an SSA report for the Virgin Islands boa. The SSA team was composed of Service biologists, in consultation with other species experts. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species. The Service sent the SSA report to six independent peer reviewers and received five responses. The Service also sent the SSA report to state partners, including scientists with expertise in Virgin Islands boa habitat, for review. We received review from two experts from the Puerto Rico Department of Natural and Environmental Resources.

A thorough review of the taxonomy, life history, ecology, and overall viability of the Virgin Islands boa is presented in the SSA report (Service 2018, entire; available at https://www.fws.gov/southeast/ and at http://www.regulations.gov under Docket No. FWS-R4-ES-2019-0069). A summary of this information follows:

The Virgin Islands boa is endemic to Puerto Rico and the Virgin Islands (U.S. and British). Originally, the Virgin Islands boa was considered a subspecies of the Puerto Rican boa ( Epicrates inornatus; Stull 1933, pp. 1-2), but was later found to be more closely related to the Mona Island boa, and the nomenclature for the two snakes was altered to reflect two subspecies, Epicrates monensis monensis (Mona Island boa) and E. m. granti (Virgin Islands boa) (Sheplan and Schwartz 1974, pp. 94-104). More recently, molecular phylogeny work indicates that the genus Epicrates is paraphyletic (a group composed of a collection of organisms, including the most recent common ancestor of all those organisms), and the West Indian clade (as opposed to the mainland clade) was designated as Chilabothrus (Reynolds et al. 2013, entire). As a result, the Virgin Islands boa is now considered its own species. We accept the change of the Virgin Islands boa's classification from the subspecies Epicrates monensis granti to the species Chilabothrus granti and are amending the scientific name to match the currently accepted nomenclature.

The Virgin Islands boa is a medium-length, slender, nonvenomous snake. The largest snout-vent lengths (SVL) recorded for the species were 1,066 millimeters (mm; 42 inches (in)) for females and 1,112 mm (44 in) for males (total body lengths 1,203 mm (47 in) and 1,349 mm (53 in), respectively; Tolson 2005, entire), although most specimens range between 600 and 800 mm (24-31 in) SVL, with an average mass of 165 grams (6 ounces) (USVI Division of Wildlife, unpub. data). Adults are gray-brown with dark-brown blotches that are partially edged with black, and feature a blue-purple iridescence on their dorsal surface; the ventral surface is creamy white or yellowish white. Newborns, on the other hand, have an almost grayish-white body color with black blotches and weigh 2.0-7.2 grams (0.07-0.25 ounces) with SVLs of 200-350 mm (approx. 8-14 inches) (Tolson 1992, pers. comm.).

The Virgin Islands boa occurs in subtropical dry forest and subtropical moist forest (Service 2009, p. 11). Subtropical dry forest covers approximately 14 percent (128,420 hectares (ha); 317,332 acres (ac)) of Puerto Rico and the U.S. Virgin Islands (USVI), typically receives less than 750 mm (29 in) rainfall annually (Ewel and Whitmore 1973, pp. 9-20), and is characterized by small (less than 5 meter (m; 16 feet (ft)) deciduous trees with high densities of interlocking branches and vines connecting adjacent tree canopies (Ewel and Whitmore 1973, p. 10). Subtropical moist forest covers approximately 58 percent (538,130 ha; 1,329,750 acres) of Puerto Rico and USVI and typically receives more than 1,100 mm (43 in) of annual rainfall. It is dominated by semi-evergreen and evergreen deciduous trees up to 20 m (66 ft) tall with rounded crowns. The Virgin Islands boa has also been reported to occur in mangrove forest, thicket/scrub, disturbed lower vegetation, and artificial structures (Harvey and Platenberg 2009, p. 114; Tolson 2003, entire).

Habitat needs for Virgin Islands boa can be divided into those for foraging and those for resting. Factors contributing to foraging habitat quality are tree density and connectivity, presence of arboreal and ground-level refugia, prey density, and rat presence/density (Tolson 1988, pp. 234-235). Tree density is more important than tree species or diversity; Virgin Islands boas do not appear to prefer a particular tree species after accounting for availability and structure (Platenberg 2018, pers. comm.). The highest densities of Virgin Islands boas are found where there are few or no exotic predators and high densities of lizard prey (Tolson 1988, p. 233; Tolson 1996b, p. 410). Resting habitat includes refugia for inactive boas to use during the day. Refugia can be the axils (angles between trunk and branches) of Cocos or Sabal species, tree holes, termite nests, or under rocks and debris (Tolson 1988, p. 233).

The Virgin Islands boa forages at night by gliding slowly along small branches in search of sleeping lizards (Service 1986, p. 6). The primary prey for the Virgin Islands boa is the Puerto Rican crested anole ( Anolis cristatellus ), and the greatest concentrations of Virgin Islands boa are found where Anolis densities exceed 60 individuals/100 m 2 (1,076 ft 2 ; Tolson 1988, p. 233). Other prey species include ground lizard ( Ameiva exsul ), house mouse ( Mus musculus ), small birds, iguana ( Iguana iguana ) hatchlings, and likely other small animals encountered (Maclean 1982, pp. 30-31, 37; Tolson 1989, p. 165; Tolson 2005, p. 9; Platenberg 2018, pers. comm.). The Virgin Islands boa may also compete for prey and other niche components with the Puerto Rican racer ( Borikenophis portoricensis ), a snake native to Puerto Rico, the U.S. and British Virgin Islands, and surrounding cays.

Much of what is known about Virgin Islands boa life history comes from studies in captivity. Lifespans in captivity often exceed 20 years, and sometimes exceed 30 years (7% of captive Virgin Islands boas exceeded 30 years of age; Smith 2018, pers. comm.), but typical lifespans in the wild are not known. Sexual maturity is reached at 2-3 years of age (Tolson 1989, Tolson and Piñero 1985), and boas are still reproductive at >20 years of age (Tolson 2018, pers. comm.). Females breed biennially, but studies have suggested that annual breeding may occur in some conditions (Tolson and Piñero 1985). Courtship behaviors and copulation occur from February through May, and interaction with conspecifics of the opposite sex appears to be necessary for reproductive cycling (Tolson 1989). The gestation period, observed from a single known copulation between two individuals, is about 132 days (Tolson 1989). Virgin Islands boas give birth to live young from late August through October to litters of 2-10 young, and litter size increases with female body size (Tolson 1992, pers. comm.).

The exact historical distribution of the Virgin Islands boa is unknown, but its present disjointed distribution suggests that it was once more widely distributed across small islands within its range. In the 1970s, when the Virgin Islands boa was originally listed, its range was identified as three islands: Puerto Rico (no specific site), St. Thomas, USVI (from a single record), and Tortola in the British Virgin Islands (BVI) (from one report) (44 FR 70677, December 7, 1979). When the recovery plan was written (1986), 71 individuals were reported in two populations: one on the eastern side of St. Thomas in the USVI, and one at Cayo Diablo, an offshore islet in Puerto Rico (Service 2009).

Currently, the Virgin Islands boa occurs on six islands between Puerto Rico, USVI, and BVI: the eastern Puerto Rican islands of Cayo Diablo and Culebra; Río Grande on the Puerto Rican main island; eastern St. Thomas and an offshore cay in USVI (USVI Cay; an introduced population); and Tortola. A seventh population (also introduced) on the Puerto Rican island of Cayo Ratones may still remain, although after the reestablishment of rats on this island after 2004, the status of this population is uncertain (Service 2018, p. 24). A recent survey did not find Virgin Islands boas on Cayo Ratones in 2018 (Island Conservation 2018, pp. 5, 17). However, because Virgin Islands boas are difficult to find, and the 2018 surveys were not extensive ( e.g., did not survey the whole island), there is currently not enough evidence to conclude the Cayo Ratones population has been extirpated. Lastly, there is also one report from 2004 that the species occurs on Greater St. James Island in St. Thomas, but nothing is known about that potential population (Dempsey 2019, pers. comm.). In 2009, based on all known populations in Puerto Rico and the USVI, an estimated 1,300-1,500 Virgin Islands boas were thought to occur (Service 2009, p. 8), although many population sizes used for this estimate are highly speculative. Based on the 2018 SSA (Service 2018, entire), current population trend estimates for Puerto Rico and USVI are either declining, potentially declining, considered rare, or unknown and most populations are small or considered rare (Service 2018, p. 30).

The population in Tortola Island, BVI, was confirmed in 2018, but there are no specific data regarding the status of that population (McGowan 2018, pers. comm.). In addition, according to anecdotal reports, the species is thought to occur on Jost Van Dyke, Guana Island, Necker Cay, Great Camanoe, and Virgin Gorda of the BVI (Mayer and Lazell 1988, entire), but data and confirmed observations are limited. There is not enough information to reliably assess the status of Virgin Islands boa populations on those islands.

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 SSA report documents the results of our comprehensive biological status review for the species, including an assessment of the potential threats to the species. The SSA report does not represent a decision by the Service on whether the species should be proposed for listing as an endangered or threatened species under the Act. It does, however, provide the scientific basis that informs our regulatory decisions, which involve the further application of standards within the Act and its implementing regulations and policies. The following is a summary of the key results and conclusions from the SSA report; the full SSA report can be found at Docket FWS-R4-ES-2019-0069 on http://www.regulations.gov and at https://www.fws.gov/southeast/.

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

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

In this discussion, we review the biological condition of the species and its resources, and the threats that influence the species' current and future condition, in order to assess the species' overall viability and the risks to that viability. In the SSA report (Service 2018, pp. 12-18), we reviewed all factors ( i.e., threats, stressors) that could be affecting the Virgin Islands boa now or in the future. However, in this proposed rule, we will focus our discussion only on those factors that could meaningfully impact the status of the species. The risk factors affecting the status of the Virgin Islands boa vary from location to location, but generally include habitat loss and degradation from development, introduced predators, sea level rise (SLR) and a changing climate, and public attitudes towards snakes. Where habitat is available but the species is not present ( i.e., most of the small islands in the eastern Puerto Rico bank and USVI), it is believed that absences are due to local extirpation resulting from habitat degradation and colonization of exotic species (Service 2009, p. 11). We discuss each of the risk factors below.

Virgin Islands boas occur on both privately and publicly owned land. Virgin Islands boas have been observed living in developed areas around residences and can persist within developed areas if habitat patches are available, but only if no cats or rats are around (Platenberg and Harvey 2010, p. 552; Platenberg 2018, pers. comm.). Where boas coexist with urban development, development continues to threaten populations via habitat destruction, especially in St. Thomas, Río Grande (Puerto Rico), and Culebra Island where habitat has declined throughout decades. In St. Thomas, available habitat has declined due to development for resorts, condos, and related infrastructure, and has become more constricted and isolated (Platenberg and Harvey 2010, p. 552). In Puerto Rico, human populations are decreasing, but residential development continues to increase island-wide, including around protected areas (Castro-Prieto et al. 2017, entire). Consequences of human development on the boa and its habitat not only include habitat loss and fragmentation due to deforestation, but also mortality from vehicular strikes, an increase in predators such as cats and rats, and an increase in human-boa conflicts that results in snakes being killed because of fear of snakes (Service 2018, pp. 13-14).

Both Puerto Rico and the USVI have regulatory mechanisms established to protect the species and its habitat throughout consultation processes for the authorization of development projects. Presently, the Virgin Islands boa is legally protected under Puerto Rico's Commonwealth Law No. 241-1999 (12 L.P.R.A. Sec.107), known as the New Wildlife Law of Puerto Rico. This law has provisions to protect habitat for all wildlife species, including plants and animals. In addition, the species is protected by Puerto Rico Department of Natural and Environmental Resources (PRDNER)'s Regulation 6766, which under Article 2.06 prohibits collecting, cutting, and removing, among other activities, listed plant and animal individuals within the jurisdiction of Puerto Rico (DRNA 2004). In USVI, Act No. 5665, known as the Virgin Islands' Indigenous and Endangered Species Act, which is enforced by the U.S. Virgin Islands Department of Planning and Natural Resources (VIDPNR), protects the species.

Despite these regulations being in place, including the requirement for developers to conduct environmental assessments and mitigate damage to the species and habitat, the regulations have proved difficult to enforce, they are often ignored by developers, and they do not cover all development activities in all Virgin Islands boa habitat (Platenberg 2011, pers. comm.). For example, in St. Thomas, major permit applications submitted for projects in the coastal zone require an environmental impact assessment that addresses endangered species and protected habitat, but these requirements do not apply to smaller projects or those outside of the coastal zone. Furthermore, as noted in one study, even though a protocol was developed and applied to delineate habitat on protected sites and identify mitigation strategies, the absence of a legal mechanism to enforce mitigation has led to varying success as developers are slow to accept, and often ignore, the mitigation process (Platenberg and Harvey 2010, pp. 551-552).

Most offshore cays within the species' range are part of the Territorial Government or protected as wildlife refuges, thus formally protecting Virgin Islands boa habitat for three of the six populations ( i.e., Cayo Diablo, Cayo Ratones, and USVI Cay). Cayo Ratones and Cayo Diablo are included in La Cordillera Natural Reserve managed by the PRDNER, and the offshore cay in USVI is managed and protected by the VIDPNR. Furthermore, even though Virgin Islands boa habitat on privately owned land on Culebra Island is currently under pressure from urban and tourism development and deforestation, more than 1,000 acres of suitable habitat on the island are protected within the Service's Culebra National Wildlife Refuge.

One of the primary threats to Virgin Islands boa populations is predation by exotic mammalian predators, mainly cats and rats, and possibly, to a lesser degree, mongoose. Mongoose are not likely a major predator of Virgin Islands boa because mongoose are terrestrial and active during the day, while Virgin Islands boas are arboreal and active primarily at night, although not exclusively (Service 2018, p. 14). Feral cats are known to prey upon boas (Tolson 1996b, p. 409), and cat populations around human development are further bolstered by cat feeding stations set up by residents. There has not been direct evidence of rats preying upon Virgin Islands boas, but boas are not present on islands with high densities of rats (Tolson 1986, unpaginated; Tolson 1988, p. 235). Rats likely negatively impact Virgin Islands boas by competing for prey, or by inducing behavioral changes in Anolis prey that make them less likely to be encountered by boas (Tolson 1988, p. 235). However, rats may also predate on neonate boas (Service 1986, p. 12). Complete predator removal on large developed islands is challenging, but is feasible on smaller cays. Prior to reintroduction of the boas, rats were eliminated from Cayo Ratones and the USVI Cay using anticoagulant poison (Tolson 1996b, p. 410), although Cayo Ratones was recolonized by rats sometime after August 2004, highlighting the importance of ongoing monitoring for rat presence after a removal project. Cayo Ratones was thought to harbor one of the most robust Virgin Islands boa populations, but during the recent 2018 survey, no boas were found (Island Conservation 2018, p. 20). There are no Virgin Islands boas present on islands with established rat populations and no rat predators (such as cats).

Climate change will continue to influence Virgin Islands boa persistence into the future. Species that are dependent on specialized habitat types or limited in distribution (including the Virgin Islands boa) are most susceptible to the impacts of climate change (Byers and Norris 2011, p. 22).

The climate in the southeastern United States and Caribbean has warmed about two degrees Fahrenheit from a cool period in the 1960s and 1970s, and temperatures are expected to continue to rise (Carter et al. 2014, pp. 398-399). Projections for future precipitation trends in this area are less certain than those for temperature, but suggest that overall annual precipitation will decrease, and that tropical storms will occur less frequently but with more force ( i.e., more category 4 and 5 hurricanes) than historical averages (Carter et al. 2014, pp. 398-399; Knutson et al. 2010, pp. 161-162). With increasing temperatures and decreasing precipitation, drought could negatively influence Virgin Islands boa populations. After a severe drought in eastern Puerto Rico, Anolis populations crashed on Cayo Diablo and body condition indices of the boas plummeted (Tolson 2018, pers. comm.).

Sea levels are expected to rise globally, potentially exceeding 1 m (3 feet) of SLR by 2100 (Reynolds et al. 2012, p. 3). Local SLR impacts will depend not only on how much the ocean level itself rises, but also on land subsidence or changes in offshore currents (Carter et al. 2014, p. 400). Impacts on terrestrial ecosystems can be temporary, via submergence of habitat during storm surges, or permanent, via salt water intrusion into the water table, inundation of habitat, and erosion. SLR and hurricane storm surges in the Caribbean are predicted to inundate low-lying islands and parts of larger islands (Bellard et al. 2014, pp. 203-204). The low-lying islands of Cayo Diablo and the USVI Cay, which support Virgin Islands boa populations, and the island of Cayo Ratones, which may still support a population, are all vulnerable to SLR and storm surges in the future. Boa populations on Río Grande, Culebra, and St. Thomas are not considered at risk from SLR; however, the three cays (Cayo Diablo, Cayo Ratones, and USVI Cay) could see 10-23 percent loss due to SLR over the next 30 years (Service 2018, pp. 38-46). Past and current observations suggest that the species can survive major hurricane events, although lasting impacts to habitat, particularly die-off of vegetation inundated by storm surges, have been observed (Platenberg 2018, pers. comm.; Smith 2018, unpaginated; Tolson 1991, pp. 12, 16; Yrigoyen 2018, pers. comm.). Loss of habitat due to storm surge impacts is similar to loss of habitat due to development; loss of low-lying forest habitat could result in decreased habitat availability for the Virgin Islands boas and their prey.

Intentional killing of the more common and larger sized Puerto Rican boa ( Chilabothrus inornatus ) due to fear or superstitious beliefs has been well documented in the literature (Bird-Picó 1994, p. 35; Puente-Rolón and Bird-Picó 2004, p. 343; Joglar 2005, p. 146). Thus, Virgin Islands boas in proximity to developed areas where people fear snakes are susceptible to intentional killings. Public encounters with Virgin Islands boas in the more populated Río Grande and Culebra locations are considered questionable because of the rarity of boas in those populations, and there are only a couple of anecdotal records of intentional killings between those areas (Service 2009, pp. 15-16). In the highly developed east side of St. Thomas, about 10 percent of the Virgin Islands boa records in St. Thomas are from dead boas killed by humans on private property (Platenberg 2006, unpub. data). We have no further information to assess the magnitude of this threat, but it is likely that intentional killings of Virgin Islands boas still occur, are not being documented, and would be particularly detrimental to rare populations such as in Río Grande. The Service is not aware of a law enforcement case related to the boa in Puerto Rico or the USVI. Populations that occur within protected areas are not expected to be exposed to this threat.

Positive influences on Virgin Islands boa viability have been habitat protection, predator control, and captive breeding and reintroduction. Two populations of Virgin Islands boa were reintroduced to protected cays after predators had been removed, one on Cayo Ratones (Puerto Rico) in 1993, and another on USVI Cay in 2002. Founders for these reintroductions came largely from a cooperative captive-breeding program initiated in 1985 between the Service, DNER, VIDPNR, and the Toledo Zoological Garden. Cayo Diablo provided the founding individuals for the captive population that was reintroduced to Cayo Ratones (6 kilometers (3.5 miles) away from Cayo Diablo), and St. Thomas provided the founding individuals for the captive population that was reintroduced to the USVI Cay (4 kilometers (2.5 miles) away from St. Thomas).

The Cayo Ratones population originated from 41 captive-born boas (offspring of Cayo Diablo boas) released between 1993 and 1995. Post-release survival was high: 82.6 percent of individuals and 89 percent of neonates survived at least 1 year (Tolson 1996a, unpaginated). By 2004, the population had grown to an estimated 500 boas (Tolson et al. 2008, p. 68). Unfortunately, since 2004, Cayo Ratones has been recolonized by rats, and no boas were found during surveys in 2018 (Island Conservation 2018, pp. 5, 20). However, because Virgin Islands boas are difficult to find, and this survey was not exhaustive, we believe it is premature to conclude the population has been extirpated. Intensive follow-up surveys are needed to confirm whether a population still persists or is extirpated, but it is clear that the population has declined.

The USVI Cay reintroduction was initiated with the release of 42 Virgin Islands boas in 2002 and 2003, 11 from captivity and 31 from St. Thomas. Follow-up surveys in 2003-2004 provided an estimate of 168 boas (202 boas/ha), which researchers suspected was near carrying capacity for the island (Tolson 2005, p. 9). More recent surveys in 2018 detected 20 boas over 2 nights, resulting in an estimate of 26-33 boas across the island (Island Conservation 2018, pp. 20-30). Differences in survey and analysis methodologies complicate direct comparisons of population size between these time points. Recent surveys also indicate that there are no rats on the island.

Factors for consideration for future reintroduction sites include the presence and amount of suitable habitat ( e.g., appropriate forest structure, adequate prey base, available refugia), protection status or threat of development, the presence/absence/eradication of exotic predators, and geomorphology that provides protection from SLR and hurricane storm surges that are likely to affect the persistence of low-lying habitat. Potential sites for new introductions have been suggested (Reynolds et al. 2015, p. 499) and need to be further assessed, although one new effort is in the early stages of implementation. Some areas may require that predators be removed before boas are moved and future monitoring is ensured to prevent recolonization. In addition to reintroductions to new sites, augmentation of existing populations may prove beneficial or necessary for the persistence of existing populations, particularly on developed islands and cays where predators have become reestablished.

In conclusion, the Virgin Islands boa still faces the threat of development on St. Thomas, Río Grande, and Culebra Island, and regulatory mechanisms addressing this threat are difficult to enforce or do not cover all development actions affecting the species. Human development results in habitat loss from deforestation and fragmentation, mortality from vehicular strikes, and increased predation by cats and rats. In addition, impacts from changes in climate could affect habitat. Drought could negatively influence Virgin Islands boa populations through loss of prey. SLR and storm surges are expected to inundate low-lying islands, such as Cayo Diablo, Cayo Ratones, and the USVI Cay, which currently support Virgin Islands boa populations. Finally, persecution of boas by citizens, due to fear or superstition, can affect individual boas, although there has never been a systematic study of the impact of these events on the overall population.

When considering conservation actions and how they influence the viability of Virgin Islands boa, about half of known localities where Virgin Islands boas occur are on small offshore islets managed for conservation. In addition, predator removal has been successful at smaller cays, such as USVI Cay, although the reestablishment of rats on Cayo Ratones illustrates the need for continued monitoring and removal efforts. Lastly, successful reintroductions of Virgin Islands boas occurred on these islands after the eradication of predators; however, additional predator removal and augmentation of reintroduced boa populations may be needed on cays where predators have become reestablished.

For the Virgin Islands boa to maintain viability, its populations, or some portion thereof, must be resilient. For the SSA, our classification of resiliency relied heavily on habitat characteristics in the absence of highly certain population size or trend estimates. The habitat characteristics we assessed were: Degree of habitat protection (or, conversely, development risk), presence of introduced predators, and vulnerability to storm surges (Service 2018, p. 31).

Representation can be measured by the breadth of genetic or environmental diversity within and among populations and gauges the probability that a species is capable of adapting to environmental changes. A range-wide genetic analysis of the Virgin Islands boa showed there was little genetic variation; however, the same study found that each sampled locality had unique mtDNA haplotypes, indicating a lack of gene flow between islands (Rodríguez-Robles et al. 2015, entire). Therefore, in the SSA we used genetics to delineate representative units.

The species also needs to exhibit some degree of redundancy in order to maintain viability. Catastrophic events that could affect both single and multiple populations of the Virgin Islands boa include drought, hurricanes, and colonization or recolonization of exotic predators. This species occurs in geographically isolated groups and does not disperse from island to island to interact and interbreed; therefore, for purposes of analyzing redundancy, all boas within each island were considered to be individual populations.

Because resiliency is a population-level attribute, the key to assessing it is the ability to delineate populations. As discussed above, we considered all boas within each island to be single populations. On small offshore cays, what we define as a population might consist of a single interbreeding deme (or subdivision) of Virgin Islands boas. On larger islands, what we define as a population functions more as a metapopulation, with multiple interbreeding groups in isolated habitat patches that may interact weakly via dispersal and recolonization of extirpated patches. Alternately, multiple occupied patches on large islands may be completely isolated from one another (Service 2018, p. 20).

Six island populations were considered: Cayo Diablo, Cayo Ratones, Culebra Island, Río Grande (Puerto Rico), St. Thomas, and USVI Cay (USVI). We acknowledge the uncertainty about the persistence of Virgin Islands boas on Cayo Ratones due to the recolonization of the island by rats; however, because of reasons described previously, we included this island in our analysis. Further, one or more populations exist in the BVI, but data are severely limited, and for the SSA, we lacked sufficient data from these islands to incorporate them into our viability analysis. In addition, other populations may occur on islands in Puerto Rico and USVI, but Virgin Islands boa habitat and activity patterns make them difficult to find, and we could not confirm any to be extant at the time we completed our analysis.

Resiliency scores for each population were generated by combining scores for three habitat metrics (Protection/Development Risk, Exotic Mammals, and Storm Surge Risk) and one population metric (Population Size and/or Trend, dependent on availability). Each metric was weighted equally, with the overall effect that habitat (three metrics) was weighted three times higher than population size/trend (one metric). For each metric, populations were assigned a score of −1, 0, or 1, as described below in table 1.

The scores were based on the best available information for each population, gathered from the literature and species experts. Monitoring data are scarce. The Virgin Islands boa recovery plan (Service 1986, pp. 16-19) called for periodic monitoring to estimate population sizes and trends, but surveys since then have been few and far between. Survey methodology and reporting have varied from population to population, with survey results given as estimated abundances, estimated densities, or encounter rates per person-hour of searching. The above-described factors in combination contribute to high levels of uncertainty in current and past population sizes, and how they have changed over time. Accordingly, resiliency classifications relied more heavily on habitat conditions than population size and trend estimates.

The scores for each population across all metrics were summed, and final population resiliency categories were assigned as follows:

Applying these resiliency categories to the six populations of Virgin Islands boa, we determined that one population has moderately high resiliency (Cayo Diablo), one has moderate resiliency (USVI Cay), one has moderately low resiliency (Culebra), and three have low resiliency (Cayo Ratones, Río Grande, and St. Thomas).

The population classified as having moderately high resiliency (Cayo Diablo) occurs on a small offshore island that is free of exotic rats and cats and is protected for conservation. In addition, Cayo Diablo was surveyed in 2018 with 10 boas being found (Island Conservation 2018). Extrapolating the density within the transect area (2.9 boas/ha) to the entire island, the model provides an estimate of 20 boas on the island (95% confidence interval 13-39), which is much lower than earlier unpublished survey results, however comparisons cannot be made between the surveys because of different survey and analytical methodologies (Service 2018, p.23). Primarily because of the protected and exotic-mammal-free state of the habitat, this population is considered to have moderately high resiliency to demographic and environmental stochastic events and disturbances ( e.g., fluctuations in demographic rates, variation in climatic conditions, illegal human activities).

The USVI Cay population, also on a protected offshore island with no exotic mammals, was determined to have moderate resiliency. Recent surveys have revealed a potential decline in abundance and the loss of two prey species (Smith 2018a, pp. 7-8), possibly as a result of density dependence as the population approached carrying capacity after reintroduction. Over two separate survey efforts in 2018, researchers found a total of 64 boas (Smith 2018ab, entire).

Three of the populations (Río Grande, Culebra, and St. Thomas) with low or moderately low resiliency occur on larger and higher elevation islands, which provide more protection from storm surges, but have more human-boa interactions, habitat loss and fragmentation from development, and exotic cats and rats. Recent surveys in 2018 on Río Grande found three boas (three survey nights) (Island Conservation 2018, p. 20). For Culebra, surveys in 2018 found no boas (Island Conservation 2018, p. 20); however, two individuals were documented in February 2019 within the Culebra National Wildlife Refuge (Puente-Rolón and Vega-Castillo 2019, p. 18). On October 2019, another individual was confirmed in an area outside of the Refuge (Román 2019, pers. comm.). For St. Thomas, there have been no recent systematic surveys for the species as much of eastern St. Thomas is inaccessible due to private ownership or impenetrable habitat; however, opportunistic observations have averaged about 10 observations of Virgin Islands boa per year since 2000. The remaining low-resiliency population (Cayo Ratones) is classified as such as a result of the recolonization of rats on the island and resulting declining trend—or possible extirpation—of boas, as no boas were detected during recent survey efforts (Island Conservation 2018).

A range-wide genetic analysis of Virgin Islands boa showed that there was little genetic variation within the species (Rodríguez-Robles et al. 2015, p. 150), supporting the idea that there is only one representative unit of Virgin Islands boa. However, each sampled island, and each sampled locality within the same island, had unique mtDNA haplotypes, indicating a lack of gene flow between islands/populations (Rodríguez-Robles et al. 2015, p. 150). These results suggest that each population has a different genetic signature, perhaps as a result of genetic adaptations to their local environment, or genetic drift with increasing isolation of small populations. The reintroduction program took this view, and managed captive populations sourced from Cayo Diablo and St. Thomas separately (Tolson 1996b, p. 412). To minimize the chances of introducing individuals poorly suited to their new environment, the captive population sourced from Cayo Diablo founded the reintroduced population on nearby Cayo Ratones, and the captive St. Thomas population founded the reintroduced population on the nearby USVI Cay (Tolson 1996b, p. 412).

In addition to genetic differences, the six populations also have noticeable phenotypic differences. These are not just limited to coloration differences between USVI and Puerto Rican populations (Tolson 1996b, p. 412); Cayo Diablo reportedly has lighter coloration than the Río Grande and Culebra populations (Tolson 2018, pers. comm.). The Río Grande population also occurs in a different habitat type (subtropical moist forest) than the others (subtropical dry or littoral forest; Tolson 1996b, p. 410).

In light of this information, we considered each of the four natural populations in Puerto Rico and USVI as a representative unit (table 2). The Cayo Diablo population is considered to have moderately high resiliency. As this was the source for the low-resiliency Cayo Ratones population, there are two populations representing the Cayo Diablo genetic signature. Similarly, the USVI Cay population was sourced from St. Thomas, so there are two populations with St. Thomas representation, with neither considered to have high resiliency. The other two natural populations, Culebra and Río Grande, both characterized as having moderately low or low resiliency, have not been used for captive breeding and reintroduction, so have no additional populations on other islands with the same genetic characteristics. Overall, three of four representative units have at least one moderate resilient population.

While currently we could consider the USVI Cay and Cayo Ratones reintroduced populations (currently with moderate and low resiliency, respectively) to be redundant populations sharing the same genetic signature and adaptive potential as their source populations, all of the islands occupied by Virgin Islands boa are isolated from each other. Without human-mediated movement of boas between islands, the reintroduced populations are expected to diverge genetically from their source populations over time, and may at some point in the future (decades to centuries; Reynolds et al. 2015, entire) be different enough to be considered its own unique representative unit.

Redundancy describes the ability of a species to withstand catastrophic events. Measured by the number of populations, their resiliency (ability of a species to withstand environmental and demographic stochasticity ( e.g., wet or dry years)) and their distribution (and connectivity), redundancy gauges the probability that the species has a margin of safety to withstand or return from catastrophic events (such as a rare destructive natural event or episode involving many populations).

The exact historical distribution of the Virgin Islands boa is unknown, but their present disjointed distribution suggests that they were once more widely distributed across small islands within their range, which have been subject to local extirpations from habitat degradation, invasive species, and historical climate and sea level changes. However, for current redundancy, we identified the six populations in Puerto Rico and USVI (and one or more populations in the BVI of unknown status). As discussed above, three of these populations are considered to have resiliency; therefore, the species is moderately buffered against the effects of catastrophic events.

Of the six assessed populations, the Cayo Diablo population is the only one that currently has moderately high resiliency, the USVI Cay population has moderate resiliency, and the Culebra population has moderately low resiliency. The other three assessed populations currently have low resiliency. Redundancy for the species includes populations on six islands in Puerto Rico and USVI, and possibly more in the BVI, although not part of this assessment. Representation consists of four representative units, two of which have two populations representing its genetic signature, and three of the four units have populations with some level of resiliency.

The Virgin Islands boa has demonstrated some ability to adapt to changing environmental conditions over time from both anthropogenic threats ( e.g., habitat disturbance due to development) and natural disturbances ( e.g., predation and hurricanes). Compared to historical distribution at the time of listing that included three locations (Puerto Rico, St. Thomas, and Tortola), the species currently has six populations (potentially more if the species persists in the BVI and others are eventually confirmed). Three of the six current populations exhibit varying levels of resiliency from moderately high to moderately low, whereas three exhibit low resiliency. Since the species was listed as an endangered species in 1970, it has demonstrated some degree of resiliency despite threats.

To assess the future resiliency, redundancy, and representation for the Virgin Islands boa, we considered impacts of human development, habitat protection and restoration, reintroductions, public outreach and education, and SLR. We predicted resiliency at two future time points, 30 years and ~80 years in the future (2048 and 2100). Predictions made at the 80-year time point are based only on SLR and hurricane storm surges as predictions about the other factors are too uncertain to allow for a meaningful analysis. As discussed in Determination of Status below, all of the impacts were considered at the 30-year time step. With input from species' experts, we chose the 30-year time step in order to encompass multiple generations of Virgin Islands boa (which can live past 20 years and reproduce at 2-3 years of age; Tolson 1989, p. 166; Tolson and Piñero 1985, unpaginated). In addition, we considered the time required to plan and execute a reintroduction (about 10 years; Tolson 2018, pers. comm.) and how a 30-year time step would allow us to see results of reintroduction efforts. Lastly, we considered the time required for habitat restoration to be realized (10 years or less; Platenberg 2018, pers. comm). The 30-year time step coincides with the foreseeable future for this analysis ( i.e., the period of time in which we can make reliable predictions). For information on predictions made at the 80-year time step, see the SSA report (Service 2018, pp. 38-46).

We did not explicitly consider the role that genetics may play in the future. Although the absence of natural migration of boas between islands isolates these populations and makes them vulnerable to inbreeding and genetic drift, no genetic abnormalities or evidence of inbreeding depression have been observed in the boa (Tolson 1996b, p. 412). We also did not explicitly consider the impacts of climate change (other than SLR and hurricane storm surges) on the boas and their habitat. Species that are dependent on specialized habitat types and limited in distribution and migration ability, such as the Virgin Islands boa, are susceptible to the impacts of climate change (Byers and Norris 2011, p. 22), but the direction, magnitude, and timeframe of these impacts on the species are uncertain.

Below we present three plausible future scenarios for the Virgin Islands boa over the next 30 years (to 2048): Status Quo, Conservation, and Pessimistic. Impacts of climate change and SLR are treated the same across all three scenarios, as the trajectory of climate change will proceed regardless of different levels of local conservation for Virgin Islands boa. For all three scenarios, SLR is considered to occur at a rate of 0.30 meters (1 foot) by 2048, and 0.61-0.91 meters (2-3 feet) by 2100 (Church et al. 2013; Service 2018, pp. 38-41). Multiple major hurricanes are expected to strike within the Virgin Islands boa's range.

Under a status quo scenario: Development continues at the current pace, and development and exotic mammals continue to negatively impact Virgin Islands boa populations. Boa population sizes in these developed areas decline, as they are suspected to currently be in decline by species experts (but hard data are lacking to confirm trends). No new habitat is protected. Under this scenario, one new reintroduction that has already been initiated with the 2018 capture of snakes to reinvigorate captive breeding takes place.

Under a conservation scenario: While development continues on human-occupied islands, under this scenario new Virgin Islands boa habitat is protected from development on the Puerto Rico main island, and additional habitat is protected on Culebra and St. Thomas (where some habitat is already protected), to preserve and restore habitat and habitat connectivity. Because of the size of the islands and human populations there, exotic cats and rats remain problematic, but this risk would be reduced by conservation efforts including predator control and effective community outreach and education about the effect of free-roaming cats on native wildlife. Regulations and enforcement improve on protected lands. Rats are eradicated (and eradication efforts are monitored) from Cayo Ratones and, if necessary, more boas are translocated there. Reintroductions occur at a rate of one site per decade, including the one reintroduction already planned, and struggling populations on developed islands are augmented.

Under a pessimistic scenario: Under the Pessimistic scenario, no reintroductions occur, presumably due to reduced funds or changes in governmental or conservation priorities. No additional habitat is protected, and development continues to impact populations on human-inhabited islands. Exotic mammals remain a threat where already present. Rats colonize Cayo Diablo and recolonize the USVI Cay.

Given current resources, priorities, and conservation momentum, the Status Quo scenario is the most likely scenario for the future. The Status Quo scenario includes the implementation of a new reintroduction, which is planned but contingent on continued funding (not yet secured) and a long-term commitment to manage and propagate a captive population, select a suitable site (which may involve rat eradication), reintroduce boas, and conduct post-release monitoring. The likelihoods of the Conservation and Pessimistic scenarios are contingent upon the decisions, resources, and priorities of management and conservation organizations, which are difficult to predict. The Pessimistic scenario is likely if funds and effort are not directed to captive breeding and reintroduction, community outreach and education, habitat protection and restoration, and ongoing monitoring of Virgin Islands boas, their habitat, and exotic species. The Conservation scenario is likely if abundant funds and effort are directed towards these initiatives.

Under all three future scenarios, the three populations on developed islands are predicted to remain at low resiliency or become extirpated by 2048 (table 3). Even with conservation efforts to prevent extirpation, none of the populations are expected to improve their resiliency because of the magnitude of the threats facing them. Cayo Diablo, the population with the highest resiliency, is expected to continue to have high resiliency unless the island is colonized by rats, which could drive the population to extirpation. Cayo Ratones, which presently has a robust rat population, will remain at low resiliency and potential extirpation unless rats are eradicated; supplemental translocations may also be necessary, but more surveys are necessary to determine the needs of the population. Given that the threats facing populations on developed islands will be very difficult to surmount, the most effective way to increase the overall resiliency of populations range-wide is to reintroduce new populations in quality protected habitat, prevent future colonization by exotic predators, and have continual predator eradication monitoring.

The total number of populations under the Status Quo scenario is three to seven depending on whether four populations become extirpated or remain at a low resiliency. Under the Pessimistic scenario, all populations are predicted to be extirpated or remain at low resiliency. The Conservation scenario improves redundancy by introducing three new populations that are expected to have high resiliency, improving the resiliency of the Cayo Ratones population by eradicating rats and providing translocations if needed, and preventing low-resiliency populations from becoming extirpated, for a total of nine populations. As time goes on after the horizon of our 30-year scenarios, SLR becomes more important to consider, as current populations with the highest resiliency potential are the same populations that will be most at risk from SLR.

In the Current Condition section above, we identified each natural (not introduced) Virgin Islands boa population as a representative unit. Under this concept, a reintroduced population is of the same representative unit as the source population used for the reintroduction, and future representation for the species depends highly on how reintroductions are carried out (table 11 in Service 2018, p. 59).

The Status Quo scenario includes one reintroduction sourced from the USVI Cay population, which was originally sourced from the St. Thomas population. Therefore, the new reintroduced population would be considered part of the St. Thomas representative unit. The Conservation scenario includes two additional reintroductions, which could be sourced from any population. Sourcing new reintroductions from Culebra or Río Grande would improve redundancy within representative units, but other factors such as geographic proximity to the reintroduction site and availability of source boas also factor into the decision of where to source reintroductions. The Pessimistic scenario does not include any new reintroduced populations.

Conservation of existing populations of Virgin Islands boas and their habitat on developed islands, via population augmentation and habitat restoration (in occupied areas and to establish migration corridors), is important to contribute to resiliency and redundancy within representative areas for the species. The future condition of the Virgin Islands boa was assessed under three scenarios 30 years into the future. Under the Status Quo scenario, development continues to impact the populations on developed islands, no new habitat is protected, and one new reintroduction takes place. Two moderately high or high-resiliency populations are predicted to remain after 30 years (Cayo Diablo and a new reintroduced population), while USVI Cay remains in moderate resiliency, and the remaining four populations are predicted to have low resiliency or potentially be extirpated.

Under the Conservation scenario, some habitat on the three developed islands is protected for conservation/restoration, reintroductions occur at a rate of one per decade, and presence of exotic mammals are monitored and controlled (though likely not eradicated) via continuous eradication efforts and public outreach. Six high-resiliency populations are predicted to exist after 30 years. Under this scenario, three populations are expected to have moderately low or low resiliency, but are protected from complete extirpation by active conservation measures. Under the Pessimistic scenario, development continues to impact populations on developed islands, no reintroductions occur, and rats colonize/recolonize the islands where they are not currently present. No highly resilient populations are predicted to remain after 30 years, and all six current populations are at risk of extirpation.

Redundancy increases under the Status Quo and Conservation scenarios; however, under the Pessimistic scenario, no high-resiliency populations remain. Representation remains the same four units under the Status Quo scenario. Under the Conservation scenario, redundancy may improve within representative units with the addition of two more reintroduced populations, depending on where those populations are sourced. Based on our analysis, we consider the Status Quo scenario to be the most likely scenario, and therefore expect the Virgin Islands boa will have three resilient populations at our 30-year timeframe, with continued redundancy and representation.

We also assessed the risk from SLR and hurricanes at 30 years into the future. In 30 years, SLR alone is unlikely to significantly impact Virgin Islands boa populations, with approximately 4-5 percent of land predicted to be inundated (Service 2018, p. 43). Habitat on low-lying cays (Cayo Diablo, Cayo Ratones, and USVI Cay) has proven to be resilient to hurricanes in the past, and likely will remain so with 0.30 meters (1 foot) of SLR expected over the next 30 years, although the exact impacts of any particular future storm are impossible to predict. Overall, USVI Cay is most at risk from SLR and storm impacts, while there is a moderate risk of SLR impacts to Virgin Islands boas and habitat on Cayo Diablo and Cayo Ratones, and low risk at Culebra, Río Grande, and St. Thomas.

We note that, by using the SSA framework to guide our analysis of the scientific information documented in the SSA report, we have not only analyzed individual effects on the species, but we have also analyzed their potential cumulative effects. We incorporate the cumulative effects into our SSA analysis when we characterize the current and future condition of the species. Our assessment of the current and future conditions encompasses and incorporates the threats individually and cumulatively. Our current and future condition assessment is iterative because it accumulates and evaluates the effects of all the factors that may be influencing the species, including threats and conservation efforts. Because the SSA framework considers not just the presence of the factors, but to what degree they collectively influence risk to the entire species, our assessment integrates the cumulative effects of the factors and replaces a standalone cumulative effects analysis.

Section 4(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. Recovery plans are not regulatory documents and are instead intended to establish goals for long-term conservation of a listed species; define criteria that are designed to indicate when the threats facing a species have been removed or reduced to such an extent that the species may no longer need the protections of the Act; and provide guidance to our Federal, State, and other governmental and nongovernmental partners on methods to minimize threats to listed species.

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

The Virgin Islands Tree Boa Recovery Plan, issued by the Service on March 27, 1986, did not contain measurable criteria. An amendment to the recovery plan was issued in September 2019 to include quantitative delisting criteria. The amended recovery plan suggests that recovery be defined in the following terms:

• Delisting Criterion 1. Existing two (2) Virgin Islands boa populations with the highest resiliency (Cayo Diablo and USVI Cay) exhibit a stable or increasing trend, evidenced by natural recruitment and multiple age classes. This criterion has been partially met. Ensuring the conservation of resilient populations is important for the recovery of the Virgin Islands boa as it will help those populations to further withstand catastrophic and stochastic events. The populations of the Virgin Islands boa at Cayo Diablo and USVI Cay are considered potentially declining (Tolson 2004, p. 11; Tolson et al. 2008, p. 68), and currently have moderately high and moderate resiliency, respectively (Service 2018, pp. 23, 28). Both Cayo Diablo and USVI cay are free of exotic predators/competitors and are protected as part of natural reserves. Habitat conditions are recovering following hurricanes, and Virgin Islands boas continue to persist, with upwards of 20 boas estimated on Cayo Diablo, and boas appear to be at carrying capacity on USVI Cay (Service 2018, pp. 23, 28). In addition, these resilient populations may serve as sources to establish the new populations outlined in Criterion 2, if maintained at their current level. Virgin Islands boas have already been collected from the USVI Cay population to establish a captive-breeding program in order to implement Criterion 2.

Five islands (Culebra, Río Grande (Puerto Rico), St. Thomas, Cayo Ratones, and Tortola) currently have Virgin Islands boas present, although population numbers and age class structures are unknown. Cayo Ratones had a thriving population, with 41 introduced boas in 1993-1995 having high survival and wild reproduction and were able to increase numbers to nearly 500 boas by 2005 (Tolson et al. 2008, p. 68; Service 2018, p. 24). However, recent surveys in 2018 did not detect any boas, but did uncover a robust rat population (Island Conservation 2018, entire; Service 2018, p. 24). Because Virgin Islands boas are hard to find and habitat conditions remain in good condition post hurricanes, there is not enough evidence to indicate boa extirpation, although the reestablishment of rats is likely causing decline in this population. For Culebra, surveys in 2018 found no boas (Island Conservation 2018, p. 20); however, two individuals were documented in February 2019 within the Culebra National Wildlife Refuge (Puente-Rolón and Vega-Castillo 2019, p. 18). On October 2019, another individual was confirmed in an area outside of the Refuge (Román 2019, pers. comm.). The Puerto Rican Río Grande population has consistent but very low encounter rates for Virgin Islands boas, with three observed during recent 2018 surveys. These two populations were determined to have low (Río Grande) and moderately low (Culebra) resiliency. Similarly, the species has been sighted on St. Thomas (Platenberg and Harvey 2010, entire), and earlier estimates assessed the population to be about 400 individuals (Tolson 1991, p. 11). Despite lack of recent surveys on St. Thomas (primarily due to inaccessibility of habitat), opportunistic reports indicate approximately 10 Virgin Islands boa observations per year since 2000 (Service 2018, p. 27). The SSA classifies this population as having low resiliency. Virgin Islands boas are known to occur on Tortola (and likely several other British Virgin islands); however, no data are available about the size or status of those populations (Service 2018, p. 29).

• Delisting Criterion 2. Establish three (3) additional populations that show a stable or increasing trend, evidenced by natural recruitment and multiple age classes. This criterion has not been met. Increasing the number of resilient populations will improve the species' viability. In order to expand the species' distribution, these new populations will be established on protected suitable habitat where threats from invasive mammals are not present and SLR will have minimal impact on the habitat. In addition, increasing the number of populations and broadening the species' distribution will enhance their ability to withstand catastrophic and stochastic events. For this species, it is believed that three additional populations exhibiting these traits is necessary to ensure sufficient redundancy such that the species will no longer require protection under the Act.

• Delisting Criterion 3. Threats are reduced or eliminated to the degree that the species is viable for the foreseeable future. This criterion has been partially met. The primary threats to Virgin Islands boa are development, predation/competition from exotic mammals, climate change, and persecution from the public. Virgin Islands boa populations have coexisted with urban development on Culebra, Río Grande, St. Thomas, and several British Virgin islands, although impacts from the development appear to cause a decline in these populations. Consequences of human development on the boa and its habitat include habitat loss and fragmentation due to deforestation, mortality from vehicular strikes, and an increase in predators/competitors, such as cats and rats. Three islands (Cayo Diablo, Cayo Ratones, and USVI Cay) are protected from development impacts. The threat of predation/competition by exotic mammals can be reduced/eliminated, but requires continual monitoring and eradication efforts. In 1985, a successful rat control program was started, and Cayo Ratones and USVI Cay were identified as potentially suitable for the reintroduction of the species. At one time, rats had been eliminated on Cayo Ratones, but they have since returned and are in robust numbers. Rats on USVI Cay have been eliminated, and Virgin Islands boas are established there. In areas where urban development is prevalent, it is unlikely that feral cats and rats will be fully eradicated. Storm surge and SLR are the effects of climate change that are projected to impact Virgin Islands boa populations; however, the species has thus far proven to be resilient to severe storms (and associated storm surge) and SLR is not expected to significantly impact the species in the foreseeable future (see Future Conditions, above). Finally, intentional killing of Virgin Islands boas, whether due to fear of snakes or confusion with other snakes, has been identified as a threat; however, the extent of the effect of persecution on Virgin Islands boa populations is unknown.

The amended Virgin Islands boa recovery plan (Service 2019) contains three recovery criteria for delisting the species: Two Virgin Islands boa populations exhibit a stable or increasing trend, evidenced by natural recruitment and multiple age classes; three additional populations show a stable or increasing trend, evidenced by natural recruitment and multiple age classes; and threats are reduced or eliminated to the degree that the species is viable for the foreseeable future. Based on the information gathered and analyzed, two of these criteria have been partially met.

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

After evaluating threats to the species and assessing the cumulative effects of the threats under the section 4(a)(1) factors, we find that, while the present or threatened destruction, modification, or curtailment of its habitat (Factor A) remains a threat for at least three of the populations, three of the six populations fully occur in protected areas, and we expect the species' population resiliency to ameliorate the threat in the future. The Virgin Islands boa's habitat is found on both private and publicly owned lands. Past, current and expanding urban development will continue to impact the Virgin Islands boa on the main islands ( i.e., St. Thomas, Río Grande (Puerto Rico), and Culebra), which are under development pressure related to urban expansion and tourism; however, not all areas of the species' range occur near population centers. Half of the currently known populations are found on islands and small islets that are managed for conservation by the territorial governments of Puerto Rico and USVI, and the Culebra Island population occurs both within private and protected areas ( i.e., Culebra National Wildlife Refuge).

Predation by exotic mammals, namely cats and rats, remains a threat to the Virgin Islands boa (Factor C). While there is no evidence of rats preying directly on the Virgin Islands boa, Virgin Islands boas are generally not present on islands with high densities of rats. This is likely due to competition for prey rather than predation. Reintroductions of Virgin Islands boas have been successful on islands where rat populations have been exterminated. Feral cats are known to prey on boas and are an ongoing threat to the species.

The fear of snakes, as well as superstitious beliefs and even confusion with other snakes, may contribute to the intentional killing of Virgin Islands boas (Factor E), although there has not yet been a systematic study done to determine if these individual deaths are having a species-wide effect.

Due to the limited distribution of Virgin Islands boas, climate change and SLR (Factor E) may also have an impact. Low-lying islands and parts of larger islands, where Virgin Islands boa populations are supported, are vulnerable to SLR and storm surge. The species has persisted despite major hurricane events, although there may be impacts to habitat ( e.g., die-off of vegetation) due to storm surge.

The Virgin Islands boa has demonstrated some ability to adapt to changing environmental conditions over time (representation) from both anthropogenic threats ( e.g., habitat disturbance due to development) and natural disturbances ( e.g., predation and hurricanes). Since the species was listed as an endangered species in 1970, it has demonstrated resiliency despite threats. Since the writing of the recovery plan (Service 1986, entire), two new populations have been reintroduced (Cayo Ratones and USVI Cay) and two previously unknown populations have been discovered (Culebra and Río Grande), although the continued persistence of the Cayo Ratones population is uncertain. There are currently at least six populations (not including those potentially on the BVI) with varying levels of resiliency; one population has moderately high resiliency, one has moderate resiliency, one has moderately low resiliency, and three have low resiliency. Based on the biology of the species and the documented responses to the development and reintroductions since listing, we expect the species to respond the same way in the foreseeable future.

Our implementing regulations at 50 CFR 424.11(d) set forth a framework within which we evaluate the foreseeable future on a case-by-case basis. The term foreseeable future extends only so far into the future as the 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 foreseeable future described here uses the best available data and considers the species' life-history characteristics, threat projection timeframes, and environmental variability, which may affect the reliability of projections. We also considered the timeframes applicable to the relevant threats and to the species' likely responses to those threats in view of its life-history characteristics. We determined the foreseeable future to be 30 years from present. As discussed above, the SSA's future scenarios considered impacts from development, habitat restoration and protection, reintroductions of the Virgin Islands boa, and SLR. Based on the modeling and scenarios evaluated for Virgin Islands boa, we considered our ability to make reliable predictions in the future and the uncertainty with regard to how and to what degree the species would respond to factors within this timeframe. In addition, the timing and response of habitat to restoration efforts (presumably multiple efforts needed, and spaced out over time as funding and resources permit) and the species' response to those improved habitat conditions, as well as the lifespan of the species (which can exceed 20 years in captivity) also informed our foreseeable future timeframe.

Taking into account the impacts of the factors based on the Status Quo scenario, and because the Virgin Islands boa contains three relatively resilient populations now ( i.e., having moderately high to moderately low resiliency), and two of those populations are predicted to maintain their moderate to moderately high resiliency in the future, especially in populations where exotic mammals are not present, we expect the species to maintain populations on two of the six islands within the foreseeable future. However, continuation of the current population trends for these two populations into the future is dependent on management ( e.g., habitat conservation/preservation and predator control/eradication). Under the Status Quo scenario, the three populations on developed islands are predicted to possibly become extirpated by 2048. Under the Conservation Scenario, up to six populations are predicted to become highly resilient within the foreseeable future. While threat intensity and management needs vary somewhat across the range of the species ( e.g., urban population areas versus non-populated conserved areas), Virgin Islands boa populations on islands throughout the range of the species continue to be reliant on active conservation management and require adequate implementation of regulatory mechanisms, and all remain vulnerable to threats that could cause substantial population declines in the foreseeable future ( e.g., feral cat predation).

Despite the existing regulatory mechanisms and conservation efforts, the factors identified above continue to affect the Virgin Islands boa. However, the species has persisted with varying degrees of resiliency since it was listed in 1970. Once known from three locations, now known from at least six locations, the species was successfully introduced to two new locations (one possibly extirpated by uncontrolled exotic mammals) and discovered at two new locations, and could be at additional locations in the unsurveyed BVI and other areas in St. Thomas; thus, the known distribution has expanded since listing. Thus, after assessing the best available information, we determine that the Virgin Islands boa is not currently in danger of extinction, but is likely to become in danger of extinction within the foreseeable future, throughout all of its range.

Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so within the foreseeable future throughout all or a significant portion of its range. The court in Center for Biological Diversity v. Everson, 2020 WL 437289 (D.D.C. Jan. 28, 2020) ( Center for Biological Diversity ), vacated the aspect of the 2014 Significant Portion of its Range Policy that provided that the Services do not undertake an analysis of significant portions of a species' range if the species warrants listing as threatened throughout all of its range. Therefore, we proceed to evaluating whether the species is endangered in a significant portion of its range—that is, whether there is any portion of the species' range for which both (1) the portion is significant; and, (2) the species is in danger of extinction in that portion. Depending on the case, it might be more efficient for us to address the “significance” question or the “status” question first. We can choose to address either question first. Regardless of which question we address first, if we reach a negative answer with respect to the first question that we address, we do not need to evaluate the other question for that portion of the species' range.

Following the court's holding in Center for Biological Diversity, we now consider whether there are any significant portions of the species' range where the species is in danger of extinction now ( i.e., endangered). In undertaking this analysis for Virgin Islands boa, we choose to address the status question first—we consider information pertaining to the geographic distribution of both the species and the threats that the species faces to identify any portions of the range where the species is endangered.

For Virgin Islands boa, we considered whether the threats are geographically concentrated in any portion of the species' range at a biologically meaningful scale. We examined the following threats: Habitat loss and degradation from development, introduced predators, SLR and a changing climate, and public attitudes towards snakes, including cumulative effects. For detailed descriptions of each threat, see Summary of Biological Status and Threats, above.

Impacts from habitat loss and degradation are prevalent throughout the range of the Virgin Islands boa. The boas occur on both privately and publicly owned land. Habitat loss and fragmentation from deforestation happens with the development of privately owned land, and even occurs around protected areas. Habitat loss also happens from SLR. Loss of habitat due to SLR and storm surge impacts is similar to loss of habitat due to development where the loss of low-lying forest habitat could result in decreased habitat availability for the Virgin Islands boas and their prey. All known islands and cays that are occupied by Virgin Islands boas are threatened with habitat loss and fragmentation.

Similarly, the threat of introduced predators is of concern range-wide for the Virgin Islands boa. Feral cats are known to prey upon boas, and rats may predate on neonate boas or compete with boas for prey. Cats and rats are easily introduced to islands, usually via boat. Efforts to eliminate exotic mammalian predators has been successful on some of the smaller cays, but requires continual removal and monitoring on the larger developed islands.

Climate change is expected to influence Virgin Islands boa persistence throughout its range into the future. Species that are limited in distribution, such as the Virgin Islands boa, are susceptible to the impacts of climate change. Temperatures throughout the Caribbean are expected to rise, precipitation is likely to decrease (resulting in drought), and tropical storms may occur less frequently but with more force. Every island and cay within the range of the Virgin Island boa is susceptible to these impacts from a changing climate.

The intentional killing of Virgin Islands boas is a threat to the species regardless of where it occurs. While those boas that live in proximity to developed areas are more susceptible to intentional killings, public fear towards snakes is a threat that can impact the boas throughout their range.

Low population numbers can be considered a threat such that the other threats acting on the species can result in a concentration of threats to extremely small populations. Data presented in the SSA indicate that current population trend estimates for Virgin Island boas in Puerto Rico and USVI are uncertain, indicating that they are either declining, potentially declining, considered rare, or unknown, but most populations are small or considered rare. Rarity does not necessarily equate to dangerously small population sizes, and because the survey methodologies and reporting has varied from population to population and over time, population size and trend estimates were not exclusively relied on to determine resiliency. Despite the rarity of Virgin Island boas on most islands, the species has demonstrated resiliency for decades, and is predicted to continue to maintain resiliency, despite threats. Therefore small population numbers across the range of the species are not considered to contribute to a concentration of threats.

We found no concentration of threats in any portion of the Virgin Islands boa's range at a biologically meaningful scale. Thus, there are no portions of the species' range where the species has a different status from its rangewide status. Therefore, no portion of the species' range provides a basis for determining that the species is in danger of extinction in a significant portion of its range, and we determine that the species is likely to become in danger of extinction within the foreseeable future throughout all of its range. This 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), and Center for Biological Diversity v. Jewell, 248 F. Supp. 3d, 946, 959 (D. Ariz. 2017).

Our review of the best available scientific and commercial information indicates that the Virgin Islands boa meets the definition of a threatened species. Therefore, we propose to reclassify the Virgin Islands boa as a threatened species in accordance with sections 3(20) and 4(a)(1) of the Act.

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

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

Exercising our authority under section 4(d), we have developed a species-specific proposed rule that is designed to address the Virgin Islands boa's specific threats and conservation needs. Although the statute does not require the Service to make a “necessary and advisable” finding with respect to the adoption of specific prohibitions under section 9, we find that this rule taken as a whole satisfies the requirement in section 4(d) of the Act to issue regulations deemed necessary and advisable to provide for the conservation of the Virgin Islands boa. As discussed above under Summary of Biological Status and Threats, the Service has concluded that the Virgin Islands boa is likely to become in danger of extinction within the foreseeable future primarily due to development-associated impacts ( i.e., habitat fragmentation and loss, vehicular strikes), predation/competition by exotic species, climate change, and persecution by the public. In addition, the species is management reliant in that it depends on maintaining current levels of management and establishing new populations into suitable habitat. Therefore, the provisions of this proposed 4(d) rule would promote conservation of the Virgin Islands boa by encouraging species restoration efforts. The provisions of this proposed rule are one of many tools that the Service would use to promote the conservation of the Virgin Islands boa. The proposed 4(d) rule would apply only if and when the Service makes final the reclassification of the Virgin Islands boa as a threatened species.

The proposed 4(d) rule would provide for the conservation of the Virgin Islands boa by prohibiting the following activities, except as otherwise authorized or permitted: Import or export; take; possession and other acts with unlawfully taken specimens; delivery, receipt, transport, or shipment in interstate or foreign commerce in the course of commercial activity; or sale or offering for sale in interstate or foreign commerce. We also propose several exceptions to these prohibitions, which along with the prohibitions are set forth under Proposed Regulation Promulgation, below.

Under the Act, “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Some of these provisions have been further defined in regulation at 50 CFR 17.3. Take can result knowingly or otherwise, by direct and indirect impacts, intentionally or incidentally. Regulating incidental and intentional take would help preserve the species' remaining populations, enable beneficial management actions to occur, and decrease synergistic, negative effects from other stressors.

Protecting the Virgin Islands boa from direct and indirect forms of take, such as physical injury or killing, whether incidental or intentional, will help preserve and recover the remaining populations of the species. Therefore, we propose to prohibit intentional and incidental take of Virgin Islands boa, including, but not limited to, capturing, handling, trapping, collecting, destruction and modification of its habitat, or any other activities that would result in take of the species.

As discussed above under Summary of Biological Status and Threats, a range of activities have the potential to impact the species, including development, intentional killing of boas by private citizens, and introduction of exotic predators/competitors ( e.g., cats, rats). Regulating these activities will help preserve the remaining populations and protect individual boas.

Protecting the Virgin Islands boa from incidental take, such as harm that results from habitat degradation, will likewise help preserve the species' populations and also decrease negative effects from other stressors impeding recovery of the species. The species' continuance may be dependent upon active management occurring on the islands and cays, especially as it concerns exotic predator control and human development. Most offshore islands and cays where the Virgin Islands boa is found are protected by municipal, territorial, and Federal agencies. However, existing land protections provided by those agencies are not comprehensive for the Virgin Islands boa and are often not enforced.

We determined that one of the primary threats to the Virgin Islands boa is the presence of exotic mammals, which, when present in high densities, is indicative of a lack of boa populations. Therefore, any introduction of exotic species, such as cats or rats, that compete with, prey upon, or destroy the habitat of the Virgin Islands boa would further impact the species and its habitat and therefore will also be prohibited by the proposed 4(d) rule.

Maintaining and expanding existing populations, and creating new populations, is also vital to the conservation of the Virgin Islands boa. Therefore, the proposed 4(d) rule would provide for the conservation of the species by excepting from the take prohibitions conservation efforts by Federal, Commonwealth, Territory, and municipal wildlife agencies to benefit the Virgin Islands boa, including control and eradication of exotic mammals, habitat restoration, and collection of broodstock, tissue collection for genetic analysis, captive propagation, and reintroduction into currently occupied and unoccupied areas within the historical range of the species. Efforts by these wildlife agency entities to monitor and survey Virgin Islands boa populations and habitat that require handling, temporary holding, pit tagging, tissue sampling, and release would also be excepted from the take prohibitions under this proposed 4(d) rule.

The fear of snakes, as well as superstitious beliefs, may contribute to the intentional killing of boas. Although we cannot address fear or beliefs in a 4(d) rule, we can except from the prohibitions take associated with removing boas from houses and other structures to provide alternatives to killing individual boas. Therefore, the proposed 4(d) rule would except from the prohibitions take associated with nonlethal removal of Virgin Islands boas from human structures, and returning them to natural habitat.

Even for activities prohibited by the 4(d) rule, including those described above, we may issue permits to carry out those activities involving threatened wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.32. With regard to threatened wildlife, a permit may be issued for the following purposes: for scientific purposes, to enhance propagation or survival, for economic hardship, for zoological exhibition, for educational purposes, for incidental taking, or for special purposes consistent with the purposes of the Act. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.

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

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

This proposal, if made final, would revise 50 CFR 17.11 to reclassify the Virgin Islands boa from endangered to threatened on the List of Endangered and Threatened Wildlife. Additionally, if the proposed 4(d) rule is adopted in a final rule, the Service will detail prohibitions set forth at 50 CFR 17.21 and 17.32, except for incidental take associated with conservation efforts by Federal, Commonwealth, Territory, or municipal wildlife agencies; nonlethal removal from human structures; and monitoring and survey efforts of Virgin Islands boa. In addition, we will revise the List of Endangered and Threatened Wildlife to change the species' scientific name to Chilabothrus granti.

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

(a) Be logically organized;

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

(c) Use clear language rather than jargon;

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

(e) Use lists and tables wherever possible.

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

It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq. ) in connection with designating critical habitat under 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, 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 references cited is available on the internet at http://www.regulations.gov under Docket No. FWS-R4-ES-2019-0069 and upon request from the Field Supervisor, Caribbean Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT , above).

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

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