Executive Orders (E.O.) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health, and safety effects; distributive impacts; and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This rule does not meet the definition of a significant regulatory action contained in section 3(f) of E.O. 12866 and is therefore not subject to review by the Office of Management and Budget (OMB).

This proposed rule has been reviewed under E.O. 12988, Civil Justice Reform. This rule is not intended to have retroactive effect.

Section 11 of the Act (7 U.S.C. 2910) provides that nothing in the Act may be construed to preempt or supersede any other program relating to soybean promotion organized and operated under the laws of the U.S. or any State. There are no administrative proceedings that must be exhausted prior to any judicial challenge to the provisions of this rule.

This action has been reviewed in accordance with the requirements of E.O. 13175, Consultation and Coordination with Indian Tribal Governments. The review reveals that this regulation would not have substantial and direct efforts on Tribal governments or significant Tribal implications.

In accordance with OMB regulations (5 CFR part 1320) that implement the Paperwork Reduction Act of 1995 (44 U.S.C. part 35), the information collection and recordkeeping requirements contained in the Order and accompanying Rules and Regulations have previously been approved by OMB and were assigned OMB control number 0581-0093.

The Board was initially appointed on July 11, 1991, pursuant to the provisions of the Act (7 U.S.C. 6301-6311), and the Order (7 CFR part 1220) issued thereunder. The Order established an initial Board with 60 members, composed of soybean producers. For purposes of establishing the Board, the United States was divided into 31 States and geographical units. Representation on the Board from each unit was determined by the level of production in each unit.

Section 1220.201(c) of the Order provides that at the end of each 3-year period, the Board shall review soybean production levels in the geographic units throughout the United States. Section 1220.130 of the Order defines a unit as each State, or group of States, which is represented on the Board. The Board may recommend to the Secretary modification in the levels of production necessary for Board membership for each unit.

Section 1220.201(d) of the Order provides that at the end of each 3-year period, the Secretary must review the volume of production of each unit and adjust the boundaries of any unit and the number of Board members from each such unit as necessary to conform with the criteria set forth in § 1220.201(e): (1) To the extent practicable, States with annual average soybean production of less than 3 million bushels shall be grouped into geographically contiguous units, each of which has a combined production level equal to or greater than 3 million bushels, and each such group shall be entitled to at least one member on the Board; (2) units with at least 3 million bushels, but fewer than 15 million bushels shall be entitled to one board member; (3) units with 15 million bushels or more but fewer than 70 million bushels shall be entitled to two Board members; (4) units with 70 million bushels or more but fewer than 200 million bushels shall be entitled to three Board members; and (5) units with 200 million bushels or more shall be entitled to four Board members.

The Board was last reapportioned in 2018. The total Board membership increased from 73 to 78 members, with Alabama, Kentucky, North Dakota, South Dakota, and Tennessee each gaining one additional member. The final rule was published in the Federal Register (83 FR 53365) on October 23, 2018. This change was effective with the 2019 appointments.

This proposed rule would decrease total membership on the Board from 78 to 77. Production data for years 2015-2019 (excluding the crops in years in which production was the highest and in which production was the lowest in each State) as reported by USDA's National Agricultural Statistics Service (NASS). This change would not affect the number of geographical units.

This proposed rule would adjust representation on the Board as follows:

Board adjustments as proposed by this rulemaking would become effective, if adopted, with the 2022 appointment process.

This proposed rule would also correct the number of States and units to the Order. During a previous reapportionment, the final rule did not account for the change in the number of States and units, as New Jersey production levels met the threshold to separate from the Eastern Region. Due to that oversight, AMS is making the correction. Technical corrections to the regulations would adjust the number of States and units from 30 to 31.

Pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS considered the economic effect of this action on small entities and determined that this proposed rule would not have a significant economic impact on a substantial number of small entities. The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly burdened.

Effective November 20, 2019, the Small Business Administration (SBA) [13 CFR 121.201] published an interim final rule (84 FR 64013) that adjusts the monetary-based size standards for inflation. As a result of this rule, the size classification for soybean producers changed from sales of $750,000 or less to sales of $1,000,000 or less. There are an estimated 515,008 soybean producers and an estimated 10,000 first purchasers who collect the assessment, most of whom would be considered small businesses under the criteria established by SBA.

According to USDA's NASS 2017 Census of Agriculture, the number of operations in the United States with soybean production totaled 303,191. 1 The most recent (2017) Census of Agriculture data show that roughly 2 percent of producers with soybean production, or 35,852 operations, have annual receipts of $1,000,000 or more. 2 Therefore, the vast majority of soybean producers, 98 percent, would be considered small businesses with the new SBA guidance. It should be noted that producers are only indirectly impacted by the proposed rule.

The proposed rule imposes no new burden on the industry, as it only adjusts representation on the Board to reflect changes in soybean production. The adjustments are required by the Order and would result in a decrease in Board membership from 78 to 77.

AMS is committed to complying with E-Government Act of 2002 to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to government information and services, and for other purposes.

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

For the reasons set forth in the preamble, AMS proposes to amend 7 CFR part 1220 as follows:

SIGPR was established by the Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020. SIGPR has the duty to conduct, supervise, and coordinate audits, evaluations, and investigations of the making, purchase, management, and sale of loans, loan guarantees, and other investments made by the Secretary of the Treasury under programs established by the Secretary, as authorized by Section 4018(c) of the CARES Act, and the management by the Secretary of programs, as authorized by Section 4018(c) of the CARES Act. SIGPR's duties and responsibilities are set forth in Section 4018 of the CARES Act, and in the Inspector General Act of 1978, 5 U.S.C. app. 3. SIGPR plans to create these systems of records to facilitate SIGPR's audits, evaluations, investigations, and other operations to (1) promote economy, efficiency, and effectiveness in the administration of such programs; (2) prevent and detect fraud and abuse in the programs and operations within its jurisdiction; and (3) keep the head of the establishment and the Congress fully informed about problems and deficiencies relating to the administration of such programs and operations and the necessity for and progress of corrective action. Treasury is publishing separately the notice of the new system of records to be maintained by SIGPR.

Under 5 U.S.C. 552a(j)(2) and (k)(2), the head of a federal agency may promulgate rules to exempt a system of records from certain provisions of 5 U.S.C. 552a if the system of records contains investigatory materials compiled for law enforcement purposes. Pursuant to these provisions, Treasury proposes to exempt the following system of records from 5 U.S.C. 552a(c)(3), (c)(4), (d)(1), (d)(2), (d)(3), (d)(4), (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (f), and (g) of the Privacy Act:

(1) Exempted from 5 U.S.C. 552a(e)(4)(G) and (f)(l) (Agency Requirements and Rules) because release would give individuals an opportunity to learn whether they have been identified as suspects or subjects of investigation. As further described in the following paragraph, access to such knowledge may impair the ability of the Department of the Treasury and SIGPR (the Department/SIGPR) to carry out its respective missions, since individuals could:

(i) Take steps to avoid detection;

(ii) Inform associates that an investigation is in progress;

(iii) Learn the nature of the investigation;

(iv) Learn whether they are suspects or, instead, have been identified as alleged law violators;

(v) Begin, continue, or resume illegal conduct upon learning that they are not identified in the system of records; or

(vi) Destroy evidence needed to prove the violation.

(2) Exempted from 5 U.S.C. 552a(d)(1), (e)(4)(H) and (f)(2), (3) and (5) (Access to Records and Agency Requirements and Rules) because release might compromise the Department's/SIGPR's ability to provide useful tactical and strategic information to law enforcement agencies by:

(i) Permitting access to records contained in the systems of records such that it might provide information concerning the nature of current investigations and enable possible violators to avoid detection or apprehension by:

(A) Allowing the discovery of facts that could form the basis for violators' arrests;

(B) Enabling violators to destroy or alter evidence of alleged criminal conduct that could form the basis for arrest; and

(C) Using knowledge of the status of criminal investigations to delay the commission of a crime, or commit a crime at a location that might not be under surveillance.

(ii) Permitting access to either on-going or closed investigative files might also reveal investigative techniques and procedures, the knowledge of which could enable individuals planning crimes to structure their operations to avoid detection or apprehension.

(iii) Permitting access to investigative files and records also could disclose the identity of confidential sources and informants and the nature of the information supplied, and thereby endanger the physical safety of those sources by exposing them to possible reprisals for having provided the information. In addition, confidential sources and informants might refuse to provide criminal investigators with valuable information if they fear their identities may be revealed through disclosure of their names or the nature of the information they supplied. Loss of access to such sources would seriously impair the Department's/SIGPR's ability to carry out its respective mandate.

(iv) Furthermore, providing access to information contained in the systems of records could reveal the identities of undercover law enforcement officers who compiled information regarding the individual's alleged criminal activities and thereby endanger the physical safety of those undercover officers or their families by exposing them to possible reprisals.

(v) By compromising the law enforcement value of the systems of records for the reasons outlined in paragraph (2), subsections (i) through (iv), permitting access in keeping with these provisions would discourage other law enforcement and regulatory agencies, foreign and domestic, from freely sharing information with the Department/SIGPR and thus would restrict the Department's/SIGPR's access to information necessary to accomplish its respective mission most effectively.

(vi) Finally, the dissemination of certain information that the Department/SIGPR maintains in the systems of records is restricted by law.

(3) Exempted from 5 U.S.C. 552a(d)(2), (3) and (4), (e)(4)(H), and (f)(4) (Access to Records) because these provisions pertain to requesting an amendment or noting a dispute to records that are exempt from access for the reasons set forth in paragraph (2) above.

(4) Exempted from 5 U.S.C. 552a(c)(3) (Accounting for Disclosures) because release of the accounting of disclosures of the records in this system could impair the ability of law enforcement agencies outside the Department/SIGPR from making effective use of information provided by the Department/SIGPR. Making accountings of disclosures available to the subjects of an investigation could alert them to the fact that another agency is conducting an investigation into their alleged criminal activities and could reveal the geographic location of the other agency's investigation, the nature and purpose of that investigation, and the dates on which that investigation was active. Individuals possessing such knowledge could take measures to avoid detection or apprehension by altering their operations, transferring their alleged criminal activities to other geographical areas, or destroying or concealing evidence that would form the basis for arrest. In the case of a delinquent account, such release might enable the subject of the investigation to dissipate assets before levy.

(ii) Moreover, providing accountings to the subjects of investigations would alert them to the fact that the Department/SIGPR has information regarding their alleged criminal activities and could inform them of the general nature of that information. Access to such information could reveal the operations of the Department/SIGPR's information-gathering and analysis systems and permit individuals to take steps to avoid detection or apprehension.

(5) Exempted from 5 U.S.C. 552a(c)(4) (Accounting of Disclosures/Notice of Record Correction or Dispute) because this provision depends on an individual's having access to and an opportunity to request amendment of records that are exempt from access for the reasons set out above, this provision should not apply to the systems of records.

(6) Exempted from 5 U.S.C. 552a(e)(4)(I) (Agency Requirements/Publication of the Categories of Records) because it could compromise the Department/SIGPR's ability to provide useful information to law enforcement agencies, since revealing sources for the information could:

(i) Disclose investigative techniques and procedures;

(ii) Result in threats or reprisals against informants by the subjects of investigations; and

(iii) Cause informants to refuse to give full information to criminal investigators for fear of having their identities as sources disclosed.

(7) Exempted from 5 U.S.C. 552a(e)(1) (Agency Requirements/Maintaining Records) because the term “maintain” includes “collect” and “disseminate,” and application of this provision to the systems of records could impair the Department/SIGPR's ability to collect and disseminate valuable law enforcement information in the following ways:

(i) In many cases, especially in the early stages of an investigation, it may be impossible to immediately determine whether information collected is relevant and necessary, and information that initially appears irrelevant and unnecessary often may, upon further evaluation or upon collation with information developed subsequently, prove particularly relevant to a law enforcement program.

(ii) Not all violations of law discovered by the Department/SIGPR fall within the investigative jurisdiction of the Department or SIGPR. To promote effective law enforcement, the Department/SIGPR may disclose such violations to other law enforcement agencies, including state, local and foreign agencies, that have jurisdiction over the offenses to which the information relates. Otherwise, the Department/SIGPR might be placed in the position of having to ignore information relating to violations of law not within the jurisdiction of the Department or SIGPR when that information comes to the Department/SIGPR's attention during the collation and analysis of information in its respective records.

(8) Exempted from 5 U.S.C. 552a(e)(2) (Agency Requirements/Collection from an Individual) because it could impair the Department's ability to collate, analyze, and disseminate investigative, intelligence, and enforcement information. In addition:

(i) Most information collected about an individual under criminal investigation is obtained from third parties, such as witnesses and informants. It is usually not feasible to rely upon the subject of the investigation as a source for information regarding his or her alleged criminal activities.

(ii) An attempt to obtain information from the subject of a criminal investigation will often alert that individual to the existence of an investigation, thereby affording the individual an opportunity to attempt to conceal his or her alleged criminal activities and thus avoid apprehension.

(iii) In certain instances, the subject of a criminal investigation may assert his or her constitutional right to remain silent and refuse to supply information to criminal investigators upon request.

(iv) During criminal investigations, it is often a matter of sound investigative procedure to obtain information from a variety of sources to verify information already obtained from the subject of a criminal investigation or other sources.

(9) Exempted from 5 U.S.C. 552a(e)(3) (Agency Requirements/Informing Individuals) because it could impair the Department/SIGPR's ability to collect and collate investigative, intelligence, and enforcement data. In addition:

(i) Confidential sources or undercover law enforcement officers often obtain information under circumstances in which it is necessary to keep the true purpose of their actions secret so as not to let the subject of the investigation, or his or her associates, know that a criminal investigation is in progress.

(ii) If it became known that the undercover officer was assisting in a criminal investigation, that officer's physical safety could be endangered through reprisal, and that officer may not be able to continue working on the investigation.

(iii) Individuals often feel inhibited talking to a person representing a criminal law enforcement agency but are willing to talk to a confidential source or undercover officer whom they believe is not involved in law enforcement activities.

(iv) Providing a confidential source of information with written evidence that he or she was a source, as required by this provision, could increase the likelihood that the source of information would be subject to retaliation by the subject of the investigation.

(v) Individuals may be contacted during preliminary information gathering, surveys, or compliance projects concerning the administration of the internal revenue laws before any individual is identified as the subject of an investigation. Informing the individual of the matters required by this provision could impede or compromise subsequent investigations.

(10) Exempted from 5 U.S.C. 552a(e)(5) (Agency Requirements/Record Maintenance). Because the definition of “maintain” includes “collect” and “disseminate,” this provision could hinder the initial collection of any information that might not be determined or determinable, at the moment of collection, to be accurate, relevant, timely, and complete. Similarly, application of this provision could seriously restrict the Department/SIGPR's ability to disseminate information pertaining to a possible violation of law to law enforcement and regulatory agencies. In collecting information during a criminal investigation, it is often impossible or unfeasible to determine accuracy, relevance, timeliness, or completeness prior to collection of the information. In disseminating information to law enforcement and regulatory agencies, it is often impossible to determine accuracy, relevance, timeliness, or completeness prior to dissemination because the Department/SIGPR may not have the expertise with which to make such determinations. Information that may initially appear inaccurate, irrelevant, untimely, or incomplete may, when collated and analyzed with other available information, become more pertinent as an investigation progresses. In addition, application of this provision could seriously impede criminal investigators and intelligence analysts in the exercise of their judgment in reporting results obtained during criminal investigations.

(11) Exempted from 5 U.S.C. 552a(e)(8) (Agency Requirements/Notice) because it could reveal investigative techniques and procedures outlined in those records and to prevent revelation of the existence of an ongoing investigation where there is need to keep the existence of the investigation secret.

(12) Exempted from 5 U.S.C. 552a(g) (Civil Remedies) because, if the civil remedies relate to provisions of 5 U.S.C. 552a from which these rules exempt the systems of records, there should be no civil remedies for failure to comply with provisions from which the Department/SIGPR is exempted. Exemption from this provision will also protect the Department/SIGPR from baseless civil court actions that might hamper its ability to collate, analyze, and disseminate investigative, intelligence, and law enforcement data.

Any information from a system of records for which an exemption is claimed under 5 U.S.C. 552a(j)(2) or 5 U.S.C. 552a(k)(2), which is also included in another system of records, retains the same exempt status such information has in the system of records for which such exemption is claimed.

This proposed rule is not a “significant regulatory action” ' under Executive Order 12866.

Pursuant to the requirements of the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, it is hereby certified that this rulemaking will not have significant economic impact on a substantial number of small entities. The term “small entity” is defined to have the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction” as defined in the RFA.

The proposed regulation, issued under sections (j)(2) and (k)(2) of the Privacy Act, is to exempt certain information maintained by the Department/SIGPR in the above-referenced systems of records from certain Privacy Act requirements in this system of records by individuals who are United States citizens or aliens lawfully admitted for permanent residence. In as much as the Privacy Act rights are personal and apply only to U.S. citizens or an alien lawfully admitted for permanent residence, small entities, as defined in the RFA, are not provided rights under the Privacy Act and are outside the scope of this regulation.

Part 1, Subpart C of Title 31 of the Code of Federal Regulations is proposed to be amended as follows:

On November 8, 2019, DC DOEE submitted a revision to its SIP to address regional haze for the second implementation period (“DC DOEE 2019 Regional Haze SIP submission”). DC DOEE made this SIP submission to satisfy the requirements of the CAA's regional haze program pursuant to CAA sections 169A and 169B and 40 CFR 51.308. EPA is proposing to find that the DC DOEE 2019 Regional Haze SIP submission meets the applicable statutory and regulatory requirements and thus proposes to approve the District's submission into its SIP.

EPA is also proposing to correct an error in the citations of the regulatory provisions in our final rule (FRN) and identification of plan of the DC NO X RACT rule (February 24, 2020, 85 FR 10295) according to our authority to make corrections to prior SIP actions under Section 110(k)(6) of the CAA.

In the 1977 CAA amendments, Congress created a program for protecting visibility in the nation's mandatory Class I Federal areas, which include certain national parks and wilderness areas. 1 42 U.S.C. 7491. The CAA establishes as a national goal the “prevention of any future, and the remedying of any existing, impairment of visibility in mandatory class I Federal areas which impairment results from manmade air pollution.” 42 U.S.C. 7491(a)(1). The CAA further directs EPA to promulgate regulations to assure reasonable progress toward meeting this national goal. 42 U.S.C. 7491(a)(4). On December 2, 1980, EPA promulgated regulations to address visibility impairment in mandatory Class I Federal areas (hereinafter referred to as “Class I areas”) that is “reasonably attributable” to a single source or small group of sources. 45 FR 80084. These regulations, codified at 40 CFR 51.300 through 51.307, represented the first phase of EPA's efforts to address visibility impairment. In 1990, Congress added section 169B to the CAA to further address visibility impairment, specifically, impairment from regional haze. 42 U.S.C. 7492. EPA promulgated the RHR, codified at 40 CFR 51.308, 2 on July 1, 1999. 64 FR 35714. These regional haze regulations are a central component of EPA's comprehensive visibility protection program for Class I areas.

Regional haze is visibility impairment that is produced by a multitude of sources and activities which are located across a broad geographic area and that emit pollutants that impair visibility. Visibility impairing pollutants include fine and coarse particulate matter (PM) ( e.g., sulfates, nitrates, organic carbon, elemental carbon, and soil dust) and their precursors ( e.g., sulfur dioxide (SO 2 ), NO X , and, in some cases, volatile organic compounds (VOC) and ammonia (NH 3 )). Fine particle precursors react in the atmosphere to form fine particulate matter (PM 2.5 ), which impairs visibility by scattering and absorbing light. Visibility impairment reduces the perception of clarity and color, as well as visible distance. 3

To address regional haze visibility impairment, the 1999 RHR established an iterative planning process that requires states in which Class I areas are located and states “the emissions from which may reasonably be anticipated to cause or contribute to any impairment of visibility” in a Class I area to periodically submit SIP revisions to address regional haze visibility impairment. 42 U.S.C. 7491(b)(2); 40 CFR 51.308(b) and (f); see also 64 FR 35768 (July 1, 1999). Under the CAA, each SIP submission must contain “a long-term (ten to fifteen years) strategy for making reasonable progress toward meeting the national goal,” 42 U.S.C. 7491(b)(2)(B); the initial round of SIP submissions also had to address the statutory requirement that certain older, larger sources of visibility impairing pollutants install and operate the best available retrofit technology (BART). 42 U.S.C. 7491(b)(2)(A); 40 CFR 51.308(d) and (e). States' first regional haze SIPs were due by December 17, 2007, 40 CFR 51.308(b), with subsequent SIP submissions containing revised long-term strategies originally due July 31, 2018, and every ten years thereafter. 64 FR 35768, July 1, 1999. EPA established in the 1999 RHR that all states either have Class I areas within their borders or “contain sources whose emissions are reasonably anticipated to contribute to regional haze in a Class I area;” therefore, all states must submit regional haze SIPs. 4 64 FR 35721, July 1, 1999.

Much of the focus in the first implementation period of the regional haze program, which ran from 2007 through 2018, was on satisfying states' BART obligations. First implementation period SIPs were additionally required to contain long-term strategies for making reasonable progress toward the national visibility goal. The core required elements for the first implementation period SIPs (other than BART) are laid out in 40 CFR 51.308(d). Those provisions required that states containing Class I areas establish reasonable progress goals (RPGs) that are measured in deciviews and reflect the visibility conditions at the end of the implementation period. The first planning period RPGs were required to provide for an improvement in visibility for the most impaired days over the period of the implementation plan and ensure no degradation in visibility for the least impaired days over the same period. In establishing the RPGs for any Class I area in a state, the state was required to consider four statutory factors: The costs of compliance, the time necessary for compliance, the energy and non-air quality environmental impacts of compliance, and the remaining useful life of any potentially affected sources. 42 U.S.C. 7491(g)(1); 40 CFR 51.308(d)(1).

States were also required to calculate baseline (using the five year period of 2000-2004)  5 and natural visibility conditions ( i.e., visibility conditions without anthropogenic visibility impairment) for each Class I area, and to calculate the linear rate of progress needed to attain natural visibility conditions, assuming a starting point of baseline visibility conditions in 2004 and ending with natural conditions in 2064. This linear interpolation is known as the uniform rate of progress (URP) and is used as a tracking metric to help states assess the amount of progress they are making towards the national visibility goal over time in each Class I area. 6 40 CFR 51.308(d)(1)(i)(B) and (d)(2). The 1999 RHR also provided that States must submit long-term strategies that include the “enforceable emissions limitations, compliance, schedules, and other measures as necessary to achieve the reasonable progress goals,” id. at 40 CFR 51.308(d)(3), and required that, in establishing their long-term strategies, states consult with other states that also contribute to visibility impairment in a Class I area and include all measures necessary to obtain their shares of the emission reductions needed to meet the RPGs. Id. at 40 CFR 51.308(d)(3)(i) and (ii). Section 51.308(d) also contains seven additional factors states must consider in formulating their long-term strategies, id. at 40 CFR 51.308(d)(3)(v), as well as provisions governing monitoring and other implementation plan requirements, id. at 40 CFR 51.308(d)(4). Finally, the 1999 RHR required states to submit periodic progress reports—SIP revisions due every five years that contain information on states' implementation of their regional haze plans and an assessment of whether anything additional is needed to make reasonable progress, see 40 CFR 51.308(g) and (h)—and to consult with the Federal Land Manager(s)  7 (FLMs) responsible for each Class I area according to the requirements in 42 U.S.C. 7491(d) and 40 CFR 51.308(i).

On January 10, 2017, EPA promulgated revisions to the RHR that apply for the second and subsequent implementation periods. 82 FR 3078. The 2017 rule made several changes to the requirements for regional haze SIPs to clarify States' obligations and streamline certain regional haze requirements. The revisions to the regional haze program for the second and subsequent implementation periods focused on the requirement that States' SIPs contain long-term strategies for making reasonable progress towards the national visibility goal. The reasonable progress requirements as revised in the 2017 rule (referred to here as the 2017 RHR Revisions) are codified at 40 CFR 51.308(f). Among other changes relative to the first period requirements, the 2017 RHR Revisions adjusted the deadline for States to submit their second-implementation-period SIPs from July 31, 2018 to July 31, 2021, clarified the order of analysis and the relationship between RPGs and the long-term strategy, and focused on making visibility improvements on the days with the most anthropogenic visibility impairment, as opposed to the days with the most visibility impairment overall. EPA also revised requirements of the visibility protection program related to periodic progress reports and FLM consultation. The specific requirements applicable to second implementation period regional haze SIP submissions are addressed in detail below.

EPA provided guidance to the States for their second implementation period SIP submissions in the preamble to the 2017 RHR Revisions as well as in subsequent, stand-alone guidance documents. In August 2019, EPA issued “Guidance on Regional Haze State Implementation Plans for the Second Implementation Period” (“2019 Guidance”). 8 Additionally, EPA further clarified the recommended procedures for processing ambient visibility data and optionally adjusting the URP to account for international anthropogenic and prescribed fire impacts in two technical guidance documents: The December 2018 “Technical Guidance on Tracking Visibility Progress for the Second Implementation Period of the Regional Haze Program”  9 (2018 Visibility Tracking Guidance), and the June 2020 “Recommendation for the Use of Patched and Substituted Data and Clarification of Data Completeness for Tracking Visibility Progress for the Second Implementation Period of the Regional Haze Program” and associated Technical Addendum. 10

Because the air pollutants and pollution affecting visibility in Class I areas can be transported over long distances, successful implementation of the regional haze program requires long-term, regional coordination among multiple jurisdictions and agencies that have responsibility for Class I areas and the emissions that impact visibility in those areas. In order to address regional haze, states need to develop strategies in coordination with one another, considering the effect of emissions from one jurisdiction on the air quality in another. Five regional planning organizations (RPOs), which include representation from state and tribal governments, EPA, and FLMs, were developed in the lead-up to the first implementation period to address regional haze. RPOs evaluate technical information to better understand how emissions from State and Tribal land impact Class I areas across the country, pursue the development of regional strategies to reduce emissions of particulate matter and other pollutants leading to regional haze, and help states meet the consultation requirements of the RHR.

The Mid-Atlantic/Northeast Visibility Union (MANE-VU), one of the five RPOs described above, is a collaborative effort of state governments, tribal governments, and various Federal agencies established to initiate and coordinate activities associated with the management of regional haze, visibility, and other air quality issues in the Mid-Atlantic and Northeast corridor of the United States. Member states and tribal governments (listed alphabetically) include: Connecticut, Delaware, the District of Columbia, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Penobscot Indian Nation, Rhode Island, St. Regis Mohawk Tribe, and Vermont. The non-voting Federal partner members of MANE-VU are EPA, U.S. National Parks Service (NPS), U.S. Fish and Wildlife Service (FWS), and U.S. Forest Service (USFS).

Under the CAA and EPA's regulations, all 50 states, the District of Columbia, and the U.S. Virgin Islands are required to submit regional haze SIPs satisfying the applicable requirements for the second implementation period of the regional haze program by July 31, 2021. Each state's SIP must contain a long-term (ten to fifteen years) strategy for making reasonable progress toward meeting the national goal of remedying any existing and preventing any future anthropogenic visibility impairment in Class I areas. 42 U.S.C. 7491(b)(2)(B). To this end, 40 CFR 51.308(f) lays out the process by which states determine what constitutes their long-term strategies, with the order of the requirements in 40 CFR 51.308(f)(1) through (3) generally mirroring the order of the steps in the reasonable progress analysis  12 and (f)(4) through (6) containing additional, related requirements. Broadly speaking, a state first must identify the Class I areas within the state and determine the Class I areas outside the state in which visibility may be affected by emissions from the state. These are the Class I areas that must be addressed in the state's long-term strategy. See 40 CFR 51.308(f) introductory text and (f)(2). For each Class I area within its borders, a state must then calculate the baseline, current, and natural visibility conditions for that area, as well as the visibility improvement made to date and the URP. See 40 CFR 51.308(f)(1). Each state having a Class I area and/or emissions that may affect visibility in a Class I area must then develop a long-term strategy that includes the enforceable emission limitations, compliance schedules, and other measures that are necessary to make reasonable progress in such areas. Reasonable progress is determined by applying the four factors in CAA section 169A(g)(1) to a set of sources of visibility-impairing pollutants the state has selected to assess for controls for the second implementation period. See 40 CFR 51.308(f)(2). After a state has developed its long-term strategy, including by determining what level of control for visibility-impacting sources represents reasonable progress, it then establishes RPGs for each Class I area within its borders by modeling the visibility impacts of all reasonable progress controls at the end of the second implementation period, i.e., in 2028, as well as the impacts of other requirements of the CAA. The RPGs include reasonable progress controls not only for sources in the state in which the Class I area is located, but also for sources in other states that contribute to visibility impairment in that area. The RPGs are then compared to the baseline visibility conditions and the uniform rate of progress to ensure that progress is being made towards the statutory goal of preventing any future and remedying any existing visibility impairment in Class I areas. Id. 40 CFR 51.308(f)(3).

In addition to satisfying the requirements at 40 CFR 51.308(f) related to reasonable progress, the SIP submissions due by July 31, 2021, for the second implementation period must address the requirements in 40 CFR 51.308(g)(1) through (5) pertaining to periodic reports describing progress towards the RPGs, 40 CFR 51.308(f)(5), as well as requirements for FLM consultation that apply to all visibility protection SIPs and SIP revisions. 40 CFR 51.309(i). A state must submit its regional haze SIP and subsequent SIP revisions to EPA according to the requirements applicable to all SIP revisions under the CAA and EPA's regulations. See 42 U.S.C. 7491(b)(2); 7410(a). Upon EPA approval, a SIP is enforceable by the Agency and the public under the CAA. If EPA finds that a state fails to make a required SIP revision, or if EPA finds that a state's SIP is incomplete or if disapproves the SIP, the Agency must promulgate a federal implementation plan (FIP) that satisfies the applicable requirements. 42 U.S.C. 7410(c)(1).

The SIP revision submission due by July 31, 2021, “must address regional haze in each mandatory Class I Federal area located within the State and in each mandatory Class I Federal area located outside the State that may be affected by emissions from within the State.” 40 CFR 51.308(f); see also 40 CFR 51.308(f)(2). 13 Thus, the first step in developing a regional haze SIP is for a state to determine which Class I areas, in addition to those within its borders, “may be affected” by emissions from within the state. In the 1999 RHR, EPA determined that all states contribute to visibility impairment in at least one Class I area (64 FR 35720-22, July 1, 1999) and explained that the statute and regulations lay out an “extremely low triggering threshold” for determining “whether States should be required to engage in air quality planning and analysis as a prerequisite to determining the need for control of emissions from sources within their State.” Id. at 35721.

A state must determine which Class I areas must be addressed by its SIP by evaluating the total emissions of visibility impairing pollutants from all sources within the state. While the RHR does not require this assessment to be conducted in any particular manner, EPA's 2019 Guidance provides recommendations for how such an assessment might be accomplished, including by, where appropriate, using the determinations previously made for the first implementation period. 2019 Guidance at 8-9. As explained below, the determination of which Class I areas may be affected by a state's emissions is subject to the requirement in 40 CFR 51.308(f)(2)(iii) to “document the technical basis, including modeling, monitoring, cost, engineering, and emissions information, on which the State is relying to determine the emission reduction measures that are necessary to make reasonable progress in each mandatory Class I Federal area it affects.”

As part of assessing whether a proposed SIP submission for the second implementation period is providing for reasonable progress towards the national visibility goal, the RHR contains requirements in 40 CFR 51.308(f)(1) related to tracking visibility improvement over time. The requirements of this subsection apply only to states having Class I areas within their borders; the required calculations must be made for each such Class I area. EPA's 2018 Visibility Tracking Guidance  14 provides recommendations to assist states in satisfying their obligations under 40 CFR 51.308(f)(1), specifically, in developing information on baseline, current, and natural visibility conditions, and in making optional adjustments to the URP to account for the impacts of international anthropogenic emissions. See 82 FR 3103-05 (January 10, 2017).

The RHR requires tracking of visibility conditions on two sets of days: the clearest and the most impaired days. Visibility conditions for both sets of days are expressed as the average deciview index for the relevant five-year period (the period representing baseline or current visibility conditions). The RHR provides that the relevant sets of days for visibility tracking purposes are the 20% clearest (the 20% of monitored days in a calendar year with the lowest values of the deciview index) and 20% most impaired days (the 20% of monitored days in a calendar year with the highest amounts of anthropogenic visibility impairment). 15 40 CFR 51.301. A state must calculate visibility conditions for both the 20% clearest and 20% most impaired days for the baseline period of 2000-2004 and the most recent five-year period for which visibility monitoring data are available (representing current visibility conditions). 40 CFR 51.308(f)(1)(i) and (iii). States must also calculate natural visibility conditions for the clearest and most impaired days, 16 by estimating the conditions that would exist on those two sets of days absent anthropogenic visibility impairment. 40 CFR 51.308(f)(1)(ii). Using all these data, states must then calculate, for each Class I area, the amount of progress made since the baseline period (2000-2004) and how much improvement is left to achieve in order to reach natural visibility conditions.

Using the data for the set of most impaired days only, states must plot a line between visibility conditions in the baseline period and natural visibility conditions for each Class I area to determine the URP—the amount of visibility improvement, measured in deciviews, that would need to be achieved during each implementation period in order to achieve natural visibility conditions by the end of 2064. The URP is used in later steps of the reasonable progress analysis for informational purposes and to provide a non-enforceable benchmark against which to assess a Class I area's rate of visibility improvement. 17 Additionally, in the 2017 RHR Revision, EPA provided states the option of proposing to adjust the end-point of the URP to account for impacts of anthropogenic sources outside the United States and/or impacts of certain types of wildland prescribed fires. These adjustments, which must be approved by EPA, are intended to avoid any perception that states should compensate for impacts from international anthropogenic sources and to give states the flexibility to determine that limiting the use of wildland-prescribed fire is not necessary for reasonable progress. 82 FR 3107 n.116 (January 10, 2017).

The core component of a regional haze SIP submission is a long-term strategy that addresses regional haze in each Class I area within a state's borders and each Class I area that may be affected by emissions from the state. The long-term strategy “must include the enforceable emissions limitations, compliance schedules, and other measures that are necessary to make reasonable progress, as determined pursuant to 40 CFR 51.308(f)(2)(i) through (iv).” 40 CFR 51.308(f)(2). The amount of progress that is “reasonable progress” is determined by applying the four statutory factors in CAA section 169A(g)(1) in an evaluation of potential control options for sources of visibility impairing pollutants, which is referred to as a “four-factor” analysis. The outcome of that analysis is the level of control of emissions that a particular source or group of sources needs to achieve in order to make reasonable progress towards the national visibility goal. The RHR refers to the controls identified pursuant to a four-factor analysis as “emission reduction measures.” See, e.g., 40 CFR 51.308(f)(2)(i). Such measures, along with any “enforceable emissions limitations, compliance schedules, and other measures” ( i.e., any compliance tools) that are necessary to ensure that the level of control identified as “reasonable progress” is in fact achieved, become part of a state's long-term strategy. 40 CFR 51.308(f)(2).

Section 51.308(f)(2)(i) provides the requirements for the four-factor analysis. The first step of this analysis entails selecting the sources to be evaluated for emission reduction measures; to this end, the RHR requires states to consider “major and minor stationary sources or groups of sources, mobile sources, and area sources” of visibility impairing pollutants to which the four statutory factors will be applied in an analysis of potential controls. 40 CFR 51.308(f)(2)(i). While states have the option to analyze all sources, the 2019 Guidance explains that “an analysis of control measures is not required for every source in each implementation period,” and that “[s]electing a set of sources for analysis of control measures in each implementation period is . . . consistent with the Regional Haze Rule, which sets up an iterative planning process and anticipates that a state may not need to analyze control measures for all its sources in a given SIP revision.” 2019 Guidance at 9. The 2019 Guidance further provides recommendations and considerations for potential approaches to selecting sources for a four-factor analysis based on the fundamental premise that “[a] state opting to select a set of its sources to analyze must reasonably choose factors [ i.e., considerations for source selection] and apply them in a reasonable way given the statutory requirement to make reasonable progress towards natural visibility.” 2019 Guidance at 10. To this end, 40 CFR 51.308(f)(2)(i) requires that a state's SIP submission include “a description of the criteria it used to determine which sources or groups of sources it evaluated.” The technical basis for source selection, which may include methods for quantifying potential visibility impacts such as emissions divided by distance metrics, trajectory analyses, residence time analyses, and/or photochemical modeling, is also subject to 40 CFR 51.308(f)(2)(iii)'s documentation requirement.

Once a state has selected the set of sources (if it has chosen not to analyze all sources of visibility impairment), the next step is to apply the four factors—“the costs of compliance, the time necessary for compliance, and the energy and quality environmental impacts of compliance, and the remaining useful life of any existing source subject to such requirements,” 42 U.S.C. 7491A(g)(1)—to determine what level of emissions from those sources represents reasonable progress for the second implementation period. 18 EPA has explained that the four-factor analysis is an assessment of potential emission reduction measures ( i.e., control options) for sources; “use of the terms `compliance' and `subject to such requirements' in section 169A(g)(1) strongly indicates that Congress intended the relevant determination to be the requirements with which sources would have to comply in order to satisfy the CAA's reasonable progress mandate.” 82 FR 3091 (January 10, 2017). Thus, for each source it has selected for four-factor analysis, 19 a state must consider a “meaningful set” of technically feasible control options for reducing emissions of visibility impairing pollutants. Id. at 3088. The 2019 Guidance provides that “[a] state must reasonably pick and justify the measures that it will consider, recognizing that there is no statutory or regulatory requirement to consider all technically feasible measures or any particular measures. A range of technically feasible measures available to reduce emissions would be one way to justify a reasonable set.” 2019 Guidance at 29.

After identifying a reasonable set of control options for the sources it has selected, a state then collects information on the four factors with regard to each control option identified; this information will be considered when weighing the factors and selecting the control option that represents reasonable progress. EPA has also explained that, in addition to the four statutory factors, states have flexibility under the CAA and RHR to reasonably consider visibility benefits as an optional fifth factor alongside the four statutory factors. 20 Here, again, the 2019 Guidance provides recommendations for the types of information that can be used to characterize the four factors (with or without visibility), as well as ways in which states might reasonably consider and balance that information to determine which of the potential control options is necessary to make reasonable progress. See 2019 Guidance at 30-36. While states have discretion to reasonably weigh the factors and to determine what level of control is needed, 40 CFR 51.308(f)(2)(i) provides that a state “must include in its implementation plan a description of . . . how the four factors were taken into consideration in selecting the measure for inclusion in its long-term strategy.”  21

As explained above, 40 CFR 51.308(f)(2)(i) requires states to determine the emission reduction measures for sources that are necessary to make reasonable progress by considering the four factors. Section 51.308(f)(2) in turn requires that a state's long-term strategy, which becomes part of its SIP, include “the enforceable emissions limitations, compliance schedules, and other measures” that are necessary to ensure that the level of control identified pursuant to the four-factor analysis, i.e., the amount of progress that is “reasonable progress,” is achieved. That is, a state must include in its SIP any emission limitations and other compliances measures ( e.g., compliance schedules and monitoring, reporting, and recordkeeping requirements) that are needed to ensure that a source in fact achieves and continues to achieve the level of emissions control that resulted from application of the four factors.

As with source selection, the characterization of information on each of the factors is also subject to the documentation requirement in 40 CFR 51.308(f)(2)(iii). The reasonable progress analysis, including source selection, information gathering, characterization of the four statutory factors (and potentially visibility), balancing of the four factors, and selection of the emission reduction measures that represent reasonable progress, is a technically complex exercise, but also a flexible one that provides states with bounded discretion to design and implement approaches appropriate to their circumstances. Given this flexibility, 40 CFR 51.308(f)(2)(iii) plays an important function in requiring a state to document the technical basis for its decision making so that the public and EPA can comprehend and evaluate the information and analysis the state relied upon to determine what emission reduction measures must be in place to make reasonable progress. The technical documentation must include the modeling, monitoring, cost, engineering, and emissions information on which the state relied to determine the measures necessary to make reasonable progress. This documentation requirement can be met through the provision of and reliance on technical analyses developed through a regional planning process, so long as that process and its output has been approved by all state participants.

The four statutory factors (and potentially visibility) are used to determine what emission reduction measures for selected sources must be included in a state's long-term strategy for making reasonable progress. Additionally, the RHR at 40 CFR 51.308(f)(2)(iv) separately provides five additional factors  22 that states must consider in developing their long-term strategies, which we paraphrase: (1) Emission reductions due to ongoing air pollution control programs (2) measures to reduce the impacts of construction activities; (3) source retirement and replacement schedules; (4) basic smoke management practices; and (5) the anticipated net effect on visibility. EPA has explained that a state may satisfy this requirement by considering these additional factors in the process of selecting sources for four-factor analysis, when performing that analysis, or both, and that not every one of the additional factors needs to be considered at the same stage of the process. See 2019 Guidance at 21.

Because the air pollution that causes regional haze crosses state boundaries, 40 CFR 51.308(f)(2)(ii) requires a state to consult with other states that also have emissions that are reasonably anticipated to contribute to visibility impairment in a given Class I area. The purpose of consultation is for each state that impacts visibility in an area to share whatever technical information, analyses, and control determinations may be necessary to develop coordinated emission management strategies. This coordination may be managed through inter- and intra-RPO consultation and the development of regional emissions strategies; additional consultations between states outside of RPO processes may also occur. While there is no requirement that a state include in its long-term strategy the emission reduction measures identified by other states, the RHR does require that a state at least consider such measures for its own sources. 40 CFR 51.308(f)(2). If a state, pursuant to consultation, agrees that certain measures ( e.g., a certain emission limitation) are necessary to make reasonable progress at a Class I area, it must include those measures in its SIP. 40 CFR 51.308(f)(2)(ii)(A). However, if a state has been asked to consider or adopt certain emission reduction measures, but ultimately determines those measures are not necessary to make reasonable progress, that state must document in its SIP the actions taken to resolve the disagreement. 40 CFR 51.308(f)(2)(ii)(C). EPA will consider the technical information and explanations presented by the submitting state and the state with which it disagrees when considering whether to approve the state's SIP. Id.; 2019 Guidance at 53. Under all circumstances, a state must document in its SIP submission all substantive consultations with other contributing states. 40 CFR 51.308(f)(2)(ii)(C).

Reasonable progress goals “measure the progress that is projected to be achieved by the control measures states have determined are necessary to make reasonable progress based on a four-factor analysis,” 82 FR at 3091, January 10, 2017; their primary purpose is to assist the public and EPA in assessing the reasonableness of states' long-term strategies for making reasonable progress towards the national visibility goal. See 40 CFR 51.308(f)(3)(iii) through (iv). States in which Class I areas are located must establish two RPGs, both in deciviews—one representing visibility conditions on the clearest days and one representing visibility on the most anthropogenically impaired days—for each such area within their borders. 40 CFR 51.308(f)(3)(i). The two RPGs are intended to reflect the projected impacts, on the two sets of days, of the measures the state with the Class I area, as well as all other contributing states, have included in their long-term strategies for the second implementation period. 23 The RPGs also account for the projected impacts of implementing other CAA requirements, including non-SIP based requirements. For this implementation period, the RPGs are set for 2028. Reasonable progress goals are not enforceable targets, 40 CFR 51.308(f)(3)(iii); rather, they “provide a way for the states to check the projected outcome of the [long-term strategy] against the goals for visibility improvement.” 2019 Guidance at 46. While states are not legally obligated to achieve the visibility conditions described in their RPGs, 40 CFR 51.308(f)(3)(i) requires that “[t]he long-term strategy and the reasonable progress goals must provide for an improvement in visibility for the most impaired days since the baseline period and ensure no degradation in visibility for the clearest days since the baseline period.” Thus, states are required to have emission reduction measures in their long-term strategies that are projected to achieve visibility on the most impaired days that is better than the baseline period, and shows no degradation on the clearest days compared to the clearest days from the baseline period. The baseline period for the purpose of this comparison is the baseline visibility condition—the annual average visibility condition for the period 2000-2004. See 40 CFR 51.308(f)(1)(i), 82 FR 3097-98 (January 10, 2017).

So that RPGs may also serve as a metric for assessing the amount of progress a state is making towards the national visibility goal, the RHR requires states with Class I areas to compare the 2028 RPG for the most impaired days to the corresponding point on the URP line (representing visibility conditions in 2028 if visibility were to improve at a linear rate from conditions in the baseline period of 2000-2004 to natural visibility conditions in 2064). If the most impaired days RPG in 2028 is above the URP ( i.e., if visibility conditions are improving more slowly than the rate described by the URP), each contributing state must demonstrate, based on the four-factor analysis required under 40 CFR 51.308(f)(2)(i), that no additional emission reduction measures would be reasonable to include in its long-term strategy. 40 CFR 51.308(f)(3)(ii). To this end, 40 CFR 51.308(f)(3)(ii) requires that each state contributing to visibility impairment in a Class I area that is projected to improve more slowly than the URP provide “a robust demonstration, including documenting the criteria used to determine which sources or groups [of] sources were evaluated and how the four factors required by paragraph (f)(2)(i) were taken into consideration in selecting the measures for inclusion in its long-term strategy.” The 2019 Guidance provides suggestions about how such a “robust demonstration” might be conducted. See 2019 Guidance at 50-51.

The 2017 RHR and 2019 Guidance also explain that projecting an RPG that is on or below the URP based on only on-the-books and/or on-the-way control measures ( i.e., control measures already required or anticipated before the four-factor analysis is conducted) is not a “safe harbor” from the CAA's and RHR's requirement that all states must conduct a four-factor analysis to determine what emission reduction measures constitute reasonable progress. See 82 FR 3078 at 3093, 3099-3100, January 10, 2017; 2019 Guidance at 22.

Section 51.308(f)(6) requires states to have certain strategies and elements in place for assessing and reporting on visibility. Individual requirements under this subsection apply either to states with Class I areas within their borders, states with no Class I areas but that are reasonably anticipated to cause or contribute to visibility impairment in any Class I area, or both. A state with Class I areas within its borders must submit with its SIP revision a monitoring strategy for measuring, characterizing, and reporting regional haze visibility impairment that is representative of all Class I areas within the state. SIP revisions for such states must also provide for the establishment of any additional monitoring sites or equipment needed to assess visibility conditions in Class I areas, as well as reporting of all visibility monitoring data to EPA at least annually. Compliance with the monitoring strategy requirement may be met through a state's participation in the Interagency Monitoring of Protected Visual Environments (IMPROVE) monitoring network, which may be used to measure visibility impairment caused by air pollution at the 156 Class I areas covered by the visibility program. 40 CFR 51.308(f)(6) introductory text and (f)(6)(i) and (iv). The IMPROVE monitor data is used to determine the 20 percent most anthropogenically impaired and 20 percent clearest sets of days every year at each Class I area and tracks visibility impairment over time.

All states' SIPs must provide for procedures by which monitoring data and other information are used to determine the contribution of emissions from within the state to regional haze visibility impairment in affected Class I areas. 40 CFR 51.308(f)(6)(ii) and (iii). Section 51.308(f)(6)(v) further requires that all states' SIPs provide for a statewide inventory of emissions of pollutants that are reasonably anticipated to cause or contribute to visibility impairment in any Class I area; the inventory must include emissions for the most recent year for which data are available and estimates of future projected emissions. States must also include commitments to update their inventories periodically. The inventories themselves do not need to be included as elements in the SIP and are not subject to EPA review as part of the Agency's evaluation of a SIP revision. 24 All states' SIPs must also provide for any other elements, including reporting, recordkeeping, and other measures, that are necessary for states to assess and report on visibility. 40 CFR 51.308(f)(6)(vi). Per the 2019 Guidance, a state may note in its regional haze SIP that its compliance with the Air Emissions Reporting Rule (AERR) in 40 CFR part 51, subpart A, satisfies the requirement to provide for an emissions inventory for the most recent year for which data are available. To satisfy the requirement to provide estimates of future projected emissions, a state may explain in its SIP how projected emissions were developed for use in establishing RPGs for its own and nearby Class I areas. 25

Separate from the requirements related to monitoring for regional haze purposes under 40 CFR 51.308(f)(6), the RHR also contains a requirement at 40 CFR 51.308(f)(4) related to any additional monitoring that may be needed to address visibility impairment in Class I areas from a single source or a small group of sources. This is called “reasonably attributable visibility impairment.”  26 Under this provision, if EPA or the FLM of an affected Class I area has advised a state that additional monitoring is needed to assess reasonably attributable visibility impairment, the state must include in its SIP revision for the second implementation period an appropriate strategy for evaluating such impairment.

Section 51.308(f)(5) requires a state's regional haze SIP revision to address the requirements of 40 CFR 51.308(g)(1) through (5) so that the plan revision due in 2021 will serve also as a progress report addressing the period since submission of the progress report for the first implementation period. The regional haze progress report requirement is designed to inform the public and EPA about a state's implementation of its existing long-term strategy and whether such implementation is in fact resulting in the expected visibility improvement. See 81 FR 26942, 26950 (May 4, 2016), 82 FR 3119, January 10, 2017. To this end, every state's SIP revision for the second implementation period is required to describe the status of implementation of all measures included in the state's long-term strategy, including BART and reasonable progress emission reduction measures from the first implementation period, and the resulting emissions reductions. 40 CFR 51.308(g)(1) and (2).

A core component of the progress report requirements is an assessment of changes in visibility conditions on the clearest and most impaired days. Section 51.308(g)(3) requires states with Class I areas within their borders to first determine current visibility conditions for each area, 40 CFR 51.308(g)(3)(i), and then to calculate the difference between those current conditions and baseline (2000-2004) visibility conditions in order to assess progress made to date. See 40 CFR 51.308(g)(3)(ii). For the purposes of 40 CFR 51.308(f)(5) and (g)(3)(iii) provides that the relevant period for assessing changes in visibility is the period since the most recent progress report. EPA interprets this period as starting from the period that represented “current visibility conditions” in the first implementation period progress report. Since different states submitted their first implementation period progress reports at different times, the period reflecting “current visibility conditions” referenced in each state's progress report will vary.

Similarly, the relevant period for the purpose of 40 CFR 51.308(g)(4)'s analysis of emissions of visibility impairing pollutants starts with the period that represented “current visibility conditions” in the progress report for the first implementation period and runs through “current conditions” for the second implementation period. This provision requires an analysis tracking the change in emissions of pollutants contributing to visibility impairment from all sources and activities within the state; changes should be identified by ( i.e., attributed to) type of source(s) or activity(ies). Section 51.308(g)(5) also addresses changes in emissions since the period addressed by the previous progress report and requires states' SIP revisions to include an assessment of any significant changes in anthropogenic emissions within or outside the state. This assessment must include an explanation of whether these changes in emissions were anticipated and whether they have limited or impeded progress in reducing emissions and improving visibility relative to what the state projected based on its long-term strategy for the first implementation period.

Clean Air Act section 169A(d) requires that before a state holds a public hearing on a proposed regional haze SIP revision, it must consult with the appropriate FLM or FLMs; pursuant to that consultation, the state must include a summary of the FLMs' conclusions and recommendations in the notification to the public. Consistent with this statutory requirement, the RHR also requires that states “provide the [FLM] with an opportunity for consultation, in person and at a point early enough in the State's policy analyses of its long-term strategy emission reduction obligation so that information and recommendations provided by the [FLM] can meaningfully inform the State's decisions on the long-term strategy.” 40 CFR 51.308(i)(2). Consultation that occurs 120 days prior to any public hearing or public comment opportunity will be deemed “early enough,” but the RHR provides that in any event the opportunity for consultation must be provided at least 60 days before a public hearing or comment opportunity. This consultation must include the opportunity for the FLMs to discuss their assessment of visibility impairment in any Class I area and their recommendations on the development and implementation of strategies to address such impairment. 40 CFR 51.308(i)(2). In order for EPA to evaluate whether FLM consultation meeting the requirements of the RHR has occurred, the SIP submission should include documentation of the timing and content of such consultation. The SIP revision submitted to EPA must also describe how the state addressed any comments provided by the FLMs. 40 CFR 51.308(i)(3). Finally, a SIP revision must provide procedures for continuing consultation between the state and FLMs regarding the state's visibility protection program, including development and review of SIP revisions, five-year progress reports, and the implementation of other programs having the potential to contribute to impairment of visibility in Class I areas. 40 CFR 51.308(i)(4).

The District submitted its regional haze SIP for the first implementation period to EPA on October 27, 2011. EPA published a final rule fully approving the first DC regional haze SIP submission on February 2, 2012 (77 FR 5191). The requirements for regional haze SIPs for the first implementation period are contained in 40 CFR 51.308(d) and (e). 40 CFR 51.308(b). The District has no Class I areas within its borders. In the first implementation period, MANE-VU used two criteria to determine whether certain SO 2 emissions from individual jurisdictions within the region affected visibility in any Class I areas: Contribution of greater than 0.1 microgram per cubic meter (µg/m 3 ) or two percent of sulfate emission contribution. 77 FR 70929, 70935 (November 16, 2011). The District relied on MANE-VU contribution assessment modeling to assert that emissions from the District did not meet either of these criteria. Regardless, EPA explained that “the District . . . is responsible for developing a regional haze SIP that describes its long-term emission strategy, its role in the consultation processes, and how the SIP meets the other requirements in EPA's regional haze regulations.” Id. Finding the District's SIP submission met the applicable requirements of 40 CFR 51.308(d) and (e), EPA approved its plan for the first implementation period. Pursuant to 40 CFR 51.308(g), the District was also responsible for submitting a five-year progress report as a SIP revision for the first implementation period, which it did on March 2, 2016. EPA approved the progress report into the DC SIP on August 10, 2017 (82 FR 37305).

In accordance with CAA sections 169A and the RHR at 40 CFR 51.308(f), on November 8, 2019, DC DOEE submitted a revision to the DC SIP to address the jurisdiction's regional haze obligations for the second implementation period, which runs through 2028. The District made its 2019 Regional Haze SIP submission available for public comment on August 30, 2019 and held a hearing on September 30, 2019. No public comments were received.

The following sections describe the District's SIP submission, including the analyses conducted by MANE-VU and the District's determinations based on those analyses, the District's assessment of progress made since the first implementation period in reducing emissions of visibility impairing pollutants, and the visibility improvement progress at nearby Class I areas. This document also contains EPA's evaluation of the District's submission against the requirements of the CAA and RHR for the second implementation period of the regional haze program.

Section 169(A)(b)(2) of the CAA requires each state in which any Class I area is located or “the emissions from which may reasonably be anticipated to cause or contribute to any impairment of visibility” in a Class I area to have a plan for making reasonable progress toward the national visibility goal. The RHR incorporates this statutory requirement at 40 CFR 51.308(f) introductory text, which provides that each state's plan “must address regional haze in each mandatory Class I Federal area located within the State and in each mandatory Class I Federal area located outside the State that may be affected by emissions from within the State,” and (f)(2), which requires each state's plan to include a long-term strategy that addresses regional haze in such Class I areas.

EPA explained in the 1999 RHR preamble that the CAA section 169A(b)(2) requirement that states submit SIPs to address visibility impairment establishes “an `extremely low triggering threshold' in determining which States should submit SIPs for regional haze.” 64 FR 35721, July 1, 1999. In concluding that each of the contiguous 48 states and the District of Columbia meet this threshold, 27 EPA relied on “a large body of evidence demonstrat[ing] that long-range transport of fine PM contributes to regional haze,” id., including modeling studies that “preliminarily demonstrated that each State not having a Class I area had emissions contributing to impairment in at least one downwind Class I area.” Id. at 35722. In addition to the technical evidence supporting a conclusion that each state contributes to existing visibility impairment, EPA also explained that the second half of the national visibility goal—preventing future visibility impairment—requires having a framework in place to address future growth in visibility-impairing emissions and makes it inappropriate to “establish criteria for excluding States or geographic areas from consideration as potential contributors to regional haze visibility impairment.” Id. at 35721. Thus, EPA concluded that the agency's “statutory authority and the scientific evidence are sufficient to require all States to develop regional haze SIPs to ensure the prevention of any future impairment of visibility, and to conduct further analyses to determine whether additional control measures are needed to ensure reasonable progress in remedying existing impairment in downwind Class I areas.” Id. at 35722. EPA's 2017 revisions to the RHR did not disturb this conclusion. See 82 FR 3094, January 10, 2017.

For the second implementation period, MANE-VU performed technical analyses to help inform source and state-level contributions to visibility impairment and the need for interstate consultation. 28 MANE-VU used the results of these analyses to determine which states' emissions “have a high likelihood of affecting visibility in MANE-VU's Class I areas.”  29 The MANE-VU analyses used a combination of data analysis techniques, including emissions data, distance from Class I areas, wind trajectories, and CALPUFF dispersion modeling. Many of the analyses focused only on SO 2 emissions and resultant particulate sulfate contributions to visibility impairment, while others also incorporated NO X emissions to estimate particulate nitrate contributions.

One MANE-VU analysis used for contribution assessment was CALPUFF air dispersion modeling. The CALPUFF model simulated sulfate and nitrate formation and transport in MANE-VU and nearby regions from large electric generating units (EGU) point sources and other large industrial and institutional sources in the eastern and central United States. The CALPUFF modeling run included sources selected using emissions divided by distance, or “Q/d” analysis. The CALPUFF modeling summary report included the top 10 most impacting EGUs and the top 5 most impacting industrial sources for each Class I area and compiled those results into a ranked list of the most impacting EGUs and industrial sources at MANE-VU Class I areas. 30 Due to a lack of large EGUs or industrial sources, no District emissions were included in the MANE-VU CALPUFF modeling. 31

The other MANE-VU analysis used a meteorologically weighted Q/d calculation. 32 The variable “Q” is the quantity of cumulative SO 2 emissions from a source or a state, which is divided by the variable “d,” which is the distance of the source or state to the IMPROVE monitor receptor at a Class I area. The result is then multiplied by a constant (C i ), which is determined based on the prevailing wind patterns. MANE-VU selected a meteorologically weighted Q/d analysis as an inexpensive initial screening tool that could easily be repeated to determine which states, sectors, or sources have a larger relative impact and warrant further analysis. MANE-VU's analysis estimated the District's maximum sulfate contribution at 0.13% at any Class I area based on the maximum daily impact. The largest impacts from District SO 2 emissions were to Brigantine Wilderness and Shenandoah National Park. The MANE-VU Q/d analysis was further extended to account for nitrate contributions from NO X emissions. Nitrate impacts were not originally estimated using Q/d, but MANE-VU wanted to include an approximation of nitrate impacts from area and mobile sources. MANE-VU developed a ratio of nitrate to sulfate impacts based on the previously described CALPUFF modeling and applied those to the sulfate Q/d results. Several states, including the District, did not have CALPUFF nitrate to sulfate ratio results because there were no point sources modeled with CALPUFF. For the District, MANE-VU developed a surrogate ratio from the Maryland CALPUFF results.

In order to develop a final set of contribution estimates, MANE-VU weighted the results from both the Q/d and CALPUFF analyses. However, only Q/d results were used for the District, since there were no CALPUFF results for the District. The MANE-VU mass-weighted sulfate and nitrate contribution results were reported for the MANE-VU Class I areas (the Q/d summary report included results for several non-MANE-VU areas as well). The largest District mass-weighted sulfate and nitrate contribution to any Class I area was 0.2% to Brigantine Wilderness. Based on the results of the MANE-VU screening analyses, the District concludes in its regional haze submission that it is “not `reasonably anticipated to contribute to visibility impairment' in any Class I Federal area.”  33

As explained above, EPA concluded in the 1999 RHR that “all [s]tates [including the District of Columbia] contain sources whose emissions are reasonably anticipated to contribute to regional haze in a Class I area,” 64 FR 35721, July 1, 1999 and this determination was not changed in the 2017 RHR. Critically, the statute and regulation both require that the cause-or-contribute assessment consider all emissions of visibility-impairing pollutants from a state, as opposed to emissions of a particular pollutant or emissions from a certain set of sources. Consistent with these requirements, the 2019 Guidance makes it clear that “all types of anthropogenic sources are to be included in the determination” of whether a state's emissions are reasonably anticipated to result in any visibility impairment. 2019 Guidance at 8.

The screening analyses on which MANE-VU relied are useful for certain purposes. MANE-VU used the technical analysis information to rank the largest contributing states to sulfate and nitrate impairment in five Class I areas within MANE-VU states and three additional, nearby Class I areas. 34 The rankings were used to determine upwind states that were deemed important to include in state-to-state consultation (based on an identified impact screening threshold), and large individual source impacts were used to target MANE-VU control analysis “Asks” of states and sources both within and upwind of MANE-VU. 35 EPA finds the nature of the analyses appropriate to make those types of conclusions. The District has participated in the MANE-VU visibility analysis and has provided information in its SIP submission on the magnitude of visibility impacts from certain District emissions on nearby Class I areas. However, the analyses did not account for all emissions and all components of visibility impairment ( e.g. primary PM emissions, and impairment from fine PM, elemental carbon, and organic carbon). In addition, a Q/d analysis with a relatively simplistic accounting for wind trajectories and CALPUFF applied to major industrial sources of SO 2 and NO X are not scientifically rigorous tools capable of ruling out a contribution to visibility impairment from all emissions in a state. This is particularly true for the District since the MANE-VU CALPUFF modeling did not include any District sources and because the nitrate impacts used in the Q/d analysis were derived from another state's ratio of nitrate to sulfate impacts. EPA does agree that the contribution to visibility impairment from District emissions at all nearby Class I areas is relatively small, and in fact may be amongst the smallest impacts to visibility impairment from the MANE-VU states. However, based on the information presented in the District's submission, there is not sufficient evidence for EPA to either agree or disagree with the conclusion that emissions from the District are not reasonably anticipated to cause or contribute to any impairment of visibility at any Class I area.

Regardless, the District took part in the emission control strategy consultation process as a member of MANE-VU. As part of that process, MANE-VU developed a set of emissions reduction measures identified as being necessary to make reasonable progress in the five MANE-VU Class I areas. This strategy consists of six Asks for states within MANE-VU and five Asks for states outside the region that were found to impact visibility at Class I areas within MANE-VU. 36 The District's submission discusses each of the Asks and explains why or why not each is applicable and how it has complied with the relevant components of the emissions control strategy MANE-VU has laid out for its states. As discussed in further detail below, EPA is proposing to find that the District has submitted a regional haze plan that meets the requirements of 40 CFR 51.308(f)(2) related to the development of a long-term strategy for the second implementation period.

Section 51.308(f)(1) requires states to determine the following for each mandatory Class I Federal area located within the State: Baseline visibility conditions for the most impaired and clearest days, natural visibility conditions for the most impaired and clearest days, progress to date for the most impaired and clearest days, the differences between current visibility condition and natural visibility condition, and the uniform rate of progress. This section also provides the option for states to propose adjustments to the URP line to account for the impacts from anthropogenic sources outside the United States and the impacts from wildland prescribed fires that were conducted for certain, specified objectives. 40 CFR 51.308(f)(1)(vi)(B). Because the District does not have any Class I areas within its borders, it is not required to calculate baseline, current, and natural visibility conditions, or to calculate a URP line. 37

Each state having a Class I area within its borders or emissions that may affect visibility in a Class I area must develop a long-term strategy for making reasonable progress towards the national visibility goal. CAA 169A(b)(2)(B). As explained in Section II.A. of this document, the long-term strategy must include the enforceable emission limitations, compliance schedules, and other measures that are necessary to make reasonable progress, as determined pursuant to 40 CFR 51.308(f)(2)(i) through (iv). 40 CFR 51.308(f)(2). In determining the emission reduction measures necessary to make reasonable progress, the state must consider the costs of compliance, time necessary for compliance, energy and non-air quality environmental impacts of compliance, and the remaining useful life of any existing source. 40 CFR 51.308(f)(2)(i). As part of this analysis, the state must describe the criteria used to determine which sources or group of sources were evaluated ( i.e., subjected to four-factor analysis) for the second implementation period and how the four factors were taken into consideration in selecting the measures for inclusion in the long-term strategy. 40 CFR 51.308(f)(2)(iii). The long-term strategy for making reasonable progress also encompasses any other emission reduction measures a state chooses to include in its overall strategy to address visibility impairment, e.g., newly adopted or on-the-books/on-the-way measures identified pursuant to the five additional factors in 40 CFR 51.308(f)(2)(iv).

This section of the document summarizes how the District's SIP submission addressed the requirements of 40 CFR 51.308(f)(2)(i); specifically, it describes MANE-VU's development of the six Asks and how the District addressed each. EPA's evaluation of the District's SIP revision with regard to the same is contained in the following section, Section IV.E.2. of this document.

States may rely on technical information developed by the RPOs of which they are members to select sources for four-factor analysis and to conduct that analysis, as well as to satisfy the documentation requirements under 40 CFR 51.308(f). Where an RPO has performed source selection and/or four-factor analyses (or considered the five additional factors in 40 CFR 51.308(f)(2)(iv)) for its member states, those states may rely on the RPOS's analyses for the purpose of satisfying the requirements of 40 CFR 51.308(f)(2)(i) so long as the states have a reasonable basis to do so and all state participants in the RPO process have approved the technical analyses. States may also satisfy the requirement of 40 CFR 51.308(f)(2)(ii) to engage in interstate consultation with other states that have emissions that are reasonably anticipated to contribute to visibility impairment in a given Class I area under the auspices of intra- and inter-RPO engagement.

The District is a member of the MANE-VU RPO and participated in the RPO's regional approach to developing a strategy for making reasonable progress towards the national visibility goal in the MANE-VU Class I areas. MANE-VU's strategy includes a combination of (1) measures for certain source sectors and groups of sectors that the RPO determined were reasonable for states to pursue, and (2) a request for member states to conduct four-factor analyses for individual sources that it identified as contributing to visibility impairment. MANE-VU refers to each of the components of its overall strategy as an Ask of its member states. On August 25, 2017, the Executive Director of MANE-VU, on behalf of the MANE-VU states and tribal nations, signed a statement that identifies six emission reduction measures that comprise the Asks for the second implementation period. 38 The Asks were “designed to identify reasonable emission reduction strategies that must be addressed by the states and tribal nations of MANE-VU through their regional haze SIP updates.”  39 The Statement explains that “[i]f any State cannot agree with or complete a Class I State's Asks, the State must describe the actions taken to resolve the disagreement in the Regional Haze SIP.”  40

MANE-VU's recommendations as to the appropriate control measures were based on technical analyses documented in the RPO's reports and included as appendices to or referenced in the District's regional haze SIP submission. One of the initial steps of MANE-VU's technical analysis was to determine which visibility-impairing pollutants should be the focus of its efforts for the second implementation period. In the first implementation period, MANE-VU determined that sulfates were the most significant visibility impairing pollutant at the region's Class I areas. To determine the impact of certain pollutants on visibility at Class I areas for the purpose of second implementation period planning, MANE-VU conducted an analysis comparing the pollutant contribution on the clearest and most impaired days in the baseline period (2000-2004) to the most recent period (2012-2016)  41 at MANE-VU and nearby Class I areas. MANE-VU found that while SO 2 emissions were decreasing and visibility was improving, sulfates still made up the most significant contribution to visibility impairment at MANE-VU and nearby Class I areas. According to the analysis, NO X emissions have begun to play a more significant role in visibility impacts in recent years, especially at Brigantine Wilderness Area. The District included this analysis in its submission. 42

To support development of the Asks, MANE-VU gathered information on each of the four factors for six source sectors it determined “had emissions that were reasonabl[y] anticipated to contribute to visibility degradation in MANE-VU:” Electric generating units (EGUs), industrial/commercial/institutional boilers (ICI boilers), cement kilns, heating oil, residential wood combustion, and outdoor wood combustion. 43 MANE-VU also collected data on individual sources within the EGU, ICI boiler, and cement kiln sectors. 44 Information for the six sectors included explanations of technically feasible control options for SO 2 or NO X , illustrative cost-effectiveness estimates for a range of model units and control options, sector-wide cost considerations, potential time frames for compliance with control options, potential energy and non-air-quality environmental impacts of certain control options, and how the remaining useful lives of sources might be considered in a control analysis. 45 Source-specific data included SO 2 emissions  46 and existing controls  47 for certain existing EGUs, ICI boilers, and cement kilns. MANE-VU had this information on the four factors as well as the analyses developed by the RPO's Technical Support Committee before it when it determined the specific emission reduction measures that are reasonable for certain sources within two of the sectors it had examined—EGUs and ICI boilers.

MANE-VU Ask 1 is “ensuring the most effective use of control technologies on a year-round basis” at EGUs with a nameplate capacity larger than or equal to 25 megawatts (MW) with already installed NO X and/or SO 2 controls. 48 In its submission, the District explained that it has no coal-fired EGUs with a nameplate capacity greater than 25 MW and that it is currently meeting Ask 1.

MANE-VU Ask 2 consists of a request that states “perform a four-factor analysis for reasonable installation or upgrade to emissions controls” for specified sources. MANE-VU developed its Ask 2 list of sources for analysis by performing modeling and identifying facilities with the potential for 3.0 inverse megameters (Mm − 1 ) or greater impacts on visibility at any Class I area in the MANE-VU region. The District explained that it has no facilities that were modeled by MANE-VU to impact visibility at any Class I area by 3.0 Mm − 1 or more and concluded that it is currently meeting Ask 2.

Ask 3 is for each MANE-VU state to pursue an ultra low-sulfur fuel oil standard if it has not already done so in the first implementation period. The Ask includes percent by weight standards for #2 distillate oil (0.0015% sulfur by weight or 15 part per million (ppm)), #4 residual oil (0.25-0.5% sulfur by weight), and #6 residual oil (0.3-0.5% sulfur by weight). The District explains that, in 2016, EPA approved into the DC SIP the District's regulation to reduce the sulfur content of commercial fuel oil (20 DCMR Section 801). 81 FR 70020 (Oct. 11, 2016). The final rule called for a 2,500 ppm limit (0.25% sulfur by weight) on #4 oil in 2016 and a 15 ppm limit (0.0015% sulfur by weight) on #2 oil starting in 2018. The rule also banned the sale of #5 and #6 fuel oil after July 1, 2016. The emissions reductions expected from implementing the 15 ppm provisions will be achieved during the second implementation period and the ultra low-sulfur fuel oil regulations in the District are a part of its long-term strategy. The District therefore concluded that it is meeting Ask 3.

MANE-VU Ask 4 requests states to update permits to “lock in” lower emissions rates for NO X , SO 2 , and PM at emissions sources larger than 250 million British Thermal Units (MMBtu) per hour heat input that have switched to lower emitting fuels. According to the District's SIP submission, the only facility in the District that is larger than 250 MMBtu is the U.S. General Services Administration Central Heating and Refrigeration Plant (“GSA Central Heating Plant”). While the facility originally burned coal, in July 2000 it was limited through a federally enforceable Title V permit revision to the use of natural gas, with #2 fuel oil (maximum 0.05% sulfur by weight) to be used only as a back-up fuel when the natural gas supply is interrupted by the supplier. The District stated that no additional updates are needed at the facility for this Ask.

Ask 5 requests that states “control NO X emissions for peaking combustion turbines” (capable of generating 15 MW or more of electricity) “that have the potential to operate on high electric demand days” by either (1) meeting NO X emissions standards specified in the Ask for turbines that run on natural gas and for fuel oil, (2) performing a four-factor analysis for reasonable installation of or upgrade to emission controls, or (3) obtaining equivalent emission reductions on high electric demand days. 49 The District states in its submission that it has no combustion turbines that sell electricity to the grid during high electricity demand days, but also notes that its reasonably available control technology (RACT) rule for combustion turbines, associated heat recovery steam generators, and duct burners that was approved into the SIP on February 24, 2020 (85 FR 10295), applies to all combustion turbines in the District regardless of their electricity generation capabilities. The District further explains that its RACT rule, which the District adopted to comply with the NO X RACT requirements under the 2008 Ozone National Ambient Air Quality Standards (NAAQS), meets the NO X emission rates that MANE-VU provided states should strive to meet under Ask 5. 50 The District states in its submission that it finds that this RACT rule would comply with Ask 5.

The last Ask for states within MANE-VU (Ask 6) requests states to report in their regional haze SIPs about programs that decrease energy demand and increase the use of combined heat and power (CHP) and other distributed generation technologies such as fuel cells, wind and solar. The District explains in its SIP submission that it “has a variety of programs and initiatives underway that reduce air pollution through reduced energy use, energy efficiency, cogeneration, or clean distributed generation.”  51 The SIP submission specifically cites three cogeneration facilities the District has permitted since 2011 as well as its 2006 Green Building Act.

EPA is proposing to find that the District has satisfied the requirements of 40 CFR 51.308(f)(2)(i) related to development of a long-term strategy. As explained above, MANE-VU conducted an inventory analysis to identify the source sectors that produced the greatest amount of SO 2 and NO X emissions in 2011; inventory data were also projected to 2018. Based on this analysis, MANE-VU identified the top-emitting sectors for each of the two pollutants, which for SO 2 include coal-fired EGUs, industrial boilers, oil-fired EGUs, and oil-fired area sources including residential, commercial, and industrial sources. Major-emitting sources of NO X include on-road vehicles, non-road vehicles, and EGUs. 52 The RPO's documentation explains that “[EGUs] emitting SO 2 and NO X and industrial point sources emitting SO 2 were found to be sectors with high emissions that warranted further scrutiny. Mobile sources were not considered in this analysis because any ask concerning mobile sources would be made to EPA and not during the intra-RPO and inter-RPO consultation process among the states and tribes.”  53 Thus, in selecting sources and source sectors for further analysis, we are proposing to find that the District's reliance on the technical analysis provided by MANE-VU, and adopted by all “State participants,” per 40 CFR 51.308(f)(2)(iii), demonstrates that the District reasonably evaluated sources of the two pollutants—SO 2 and NO X —that drive visibility impairment within the MANE-VU region and that it adequately explained and supported its choice of sources and source categories for further analysis.

Section 51.308(f)(2)(i) requires states to evaluate and determine the emission reduction measures that are necessary to make reasonable progress by applying the four factors to sources. As explained previously, the MANE-VU Asks are a mix of measures for sectors and groups of sources identified as reasonable for states to address in their regional haze plans and requests for states to perform four-factor analyses for specific sources the RPO identified as potentially contributing to visibility impairment. As laid out in further detail below, EPA is proposing to find that MANE-VU's four-factor analysis conducted to support Ask 3, in conjunction with the District's analysis and explanation of how it has either complied with each Ask or determined that it is not applicable, satisfies the requirement to determine the emission reduction measures that are necessary to make reasonable progress by considering the costs of compliance, time necessary for compliance, energy and non-air quality impacts of compliance, and remaining useful life of any potentially affected sources.

The District concluded that it satisfied Ask 1 because it has no coal-fired EGUs with a nameplate capacity of greater than 25 MW. EPA notes that Ask 1 does not refer exclusively to coal-fired EGUs; however, a review of the NEI and Clean Air Markets Division data shows that the District does not have any EGUs with a capacity greater than 25 MW. 54 EPA therefore proposes to find that the District's conclusion that it is currently meeting Ask 1 is reasonable.

Ask 2 addresses the sources MANE-VU determined have the potential for ≥3 Mm − 1 visibility impact at any MANE-VU Class I area; the Ask requests MANE-VU states to conduct four-factor analyses for the specified sources within their borders. This Ask explicitly engages with the statutory and regulatory requirement to determine reasonable progress based on the four factors; MANE-VU considered it “reasonable to have the greatest contributors to visibility impairment conduct a four-factor analysis that would determine whether emission control measures should be pursued and what would be reasonable for each source.”  55

The District did not conduct a four-factor analysis for any individual point sources of visibility-impairing pollutants. It is relevant to our evaluation of the reasonableness of this decision that not only did MANE-VU not identify any large EGUs or other industrial sources of visibility impairing pollutants within the District, the District does not actually contain any point sources with large emissions of visibility impairing pollutants. The 2014 NEI data included in the District's submission show that total actual point source emissions for SO 2 District-wide were less than 50 tons and less than 500 tons for NO X . Data EPA pulled from the 2017 NEI show that total actual point source emissions for SO 2 District-wide were less than 30 tons and less than 400 tons for NO X . 56 That the District's emissions are this low on a jurisdiction-wide basis reinforces the reasonableness of the its decision to not apply the four factors to any individual point source of visibility impairing pollutants in the second implementation period.

The District does contain one source that is >250 MMBtu/hour, the GSA Central Heating Plant; a steam plant and refrigeration facility (produces both steam for heat and process energy and chilled water for refrigeration) that also uses co-generation to produce both heat energy and electricity for use on site. The GSA Central Heating Plant is the largest point source of emissions (by combined NO X and SO 2 emissions) in the District as reported under the NEI. It was also the subject of the NPS's 2018 early engagement source evaluation request in which that agency provided a list of sources and requested that states review and consider those sources for inclusion in their long-term strategies. 57 For the following reasons, EPA believes the District reasonably declined to conduct a four-factor analysis for the GSA Central Heating Plant. 58 First, as reported under the 2017 NEI, the GSA Central Heating Plant's total emissions are relatively low at 127 tons per year NO X and 0.6 tons per year SO 2 . 59 Second, emissions from the source are already subject to both operational limits and enforceable emission limits including the District's NO X RACT rule, which has been adopted into its SIP. 60 The Plant's NO X emissions come from five boilers and one cogeneration system that is comprised of two combustion turbine generators, one heat recovery steam generator, and duct burners. 61 Each of the five boilers is equipped with low NO X burners or dry low NO X burners  62 and is limited by the source's Title V permit (permit No. 032) to burning natural gas except for periods of service interruption, when the boilers are permitted to burn #2 fuel oil. 63 The 15 ppm low sulfur fuel oil rule applies to any fuel oil that would be used at the GSA Central Heating Plant. The boilers, three of which are rated at 250 MMBtu/hour and two of which are rated at 500 MMBtu/hour, are additionally limited under the NO X RACT rule to 0.25 lb NO X /MMBtu when powered by fuel oil or a combination of oil and natural gas, and 0.2 lb NO X /MMBtu when powered by natural gas. The two larger boilers, as well as the cogeneration unit, are further subject to a cap of 25 tons of NO X total per ozone season; this cap was required pursuant to EPA's NO X SIP call and has been approved into the District's SIP. 64 The combustion turbines that are part of the GSA Central Heating Plant's cogeneration system are also limited to burning natural gas except for periods of service interruption, when they are permitted to burn #2 fuel oil. The turbines are inherently low emitting by virtue of their dry low NO X burners and emissions are also limited by the NO X RACT rule, which contains requirements for combustion turbines and associated heat recovery steam generators and duct burners equivalent to the New Source Performance Standards (NSPS) in subpart KKKK. The duct burners at the GSA Central Heating Plant are fired exclusively on natural gas. 65 Based on the fact that the GSA Central Heating Plant's emissions are already relatively low and controlled as the result of SIP-based limits on SO 2 (low sulfur fuel oil rule) and NO X (NO X RACT rule and limits related to NO X SIP call), EPA believes it was reasonable for the District not to conduct a four-factor analysis for this source, whether or not it was on the MANE-VU list of sources pursuant to Ask 2.

Ask 3, which addresses the sulfur content of heating oil used in MANE-VU states, is based on a four-factor analysis for the heating oil sulfur reduction regulations contained in that Ask;  66 specifically, for reducing the sulfur content of distillate oil to 15 ppm. The analysis started with an assessment of the costs of retrofitting refineries to produce 15 ppm heating oil in sufficient quantities to support implementation of the standard, as well as the impacts of requiring a reduction in sulfur content on consumer prices. The analysis noted that, as a result of previous EPA rulemakings to reduce the sulfur content of on-road and non-road-fuels to 15 ppm, technologies are currently available to achieve sulfur reductions and many refiners are already meeting this standard, meaning that the capital investments for further reductions in the sulfur content of heating oil are expected to be relatively low compared to costs incurred in the past. The analysis also examined, by way of example, the impacts of New York's existing 15 ppm sulfur requirements on heating oil prices and concluded that the cost associated with reducing sulfur was relatively small in terms of the absolute price of heating oil compared to the magnitude of volatility in crude oil prices. It also noted that the slight price premium is compensated by cost savings due to the benefits of lower-sulfur fuels in terms of equipment life and maintenance and fuel stability. Consideration of the time necessary for compliance with a 15 ppm sulfur standard was accomplished through a discussion of the amount of time refiners had needed to comply with EPA's on-road and non-road fuel 15 ppm requirement, and the implications existing refinery capacity and distribution infrastructure may have for compliance times with a 15 ppm heating oil standard. The analysis concluded that with phased-in timing for states that have not yet adopted a 15 ppm heating oil standard there “appears to be sufficient time to allow refiners to add any additional heating oil capacity that may be required.”  67 The analysis further noted the beneficial energy and non-air quality environmental impacts of a 15 ppm sulfur heating oil requirement and that reducing sulfur content may also have a salutary impact on the remaining useful life of residential furnaces and boilers. 68

EPA proposes to find that the District reasonably relied on MANE-VU's four-factor analysis for a low-sulfur fuel oil regulation, which engaged with each of the factors and explained how the information supported a conclusion that a 15 ppm-sulfur fuel oil standard is reasonable. The agency further proposes to determine that the District's SIP-approved ultra-low sulfur fuel oil rule satisfies the requirement of 40 CFR 51.308(f)(2) that its long-term strategy include the enforceable measures that are necessary to make reasonable progress, as determined through consideration of the four factors. 69

The District concluded that no additional updates were needed to meet Ask 4, which requests MANE-VU states to pursue updating permits, enforceable agreements, and/or rules to lock-in lower emission rates for sources >250 MMBtu per hour that have switched to lower emitting fuels. As explained above, the GSA Central Heating Plant is the only point source >250 MMBtu per hour in the District. While the boilers were originally configured to burn coal, in 2000 the source updated its Title V permit to limit the source to using only natural gas as a primary fuel and #2 fuel oil during natural gas supply interruptions. 70 Thus, EPA proposes to find that the District reasonably determined it has satisfied Ask 4.

Ask 5 addresses NO X emissions from peaking combustion turbines that have the potential to operate on high electric demand days. The District notes that, while it has no combustion turbines that sell electricity to the grid during such days, its SIP-adopted NO X RACT rule applies to all combustion turbines and meets the emission rates contained in Ask 5. EPA therefore proposes to find that the District reasonably concluded that its existing regulations would comply with Ask 5.

Finally, with regard to Ask 6, the District reports three cogeneration facilities it has permitted and describes the provisions of its 2006 Green Building Act. EPA is proposing to find that the District has satisfied Ask 6's request to consider and report in its SIP measures or programs related to energy efficiency, cogeneration, and other clean distributed generation technologies.

In sum, EPA is proposing to find that, based on the District's participation in the MANE-VU planning process, how it has addressed each of the Asks, and EPA's assessment of the District's emissions and point sources, the District has complied with the requirements of 40 CFR 51.308(f)(2)(i). The Agency notes that MANE-VU concluded that sulfates from SO 2 emissions were still the primary driver of visibility impairment in the second implementation period  71 and that MANE-VU conducted a four-factor analysis to support Ask 3, which requests that states pursue ultra-low sulfur fuel oil standards to address SO 2 emissions. The District has done so and included its regulations in its SIP, thus satisfying the requirements that states determine the emission reduction measures necessary to make reasonable progress by considering the four factors and that their long-term strategies include the enforceable emission limitations, compliance schedules, and other measures necessary to make reasonable progress. EPA further believes it is reasonable that the District did not examine additional sources for potential emission reduction measures in the second implementation period because there are no large point sources of visibility-impairing pollutants in the jurisdiction; furthermore, the largest category of area sources of SO 2 emissions are oil-fired residential, commercial, and industrial sources that are covered by the fuel oil standard and the largest area source category of NO X emissions is mobile sources. In particular, EPA believes it was reasonable for the District not to conduct a four-factor analysis for the GSA Central Heating Plant—the largest point source of emissions—because that facility's emissions are already relatively low and, critically, are already limited by SIP-based emission limits, in addition to permit-based fuel requirements. Additionally, to the extent that MANE-VU has identified the measures in Asks 4 through 6 as being part of the region's strategy for making reasonable progress, we propose to find it reasonable for the District to address these Asks by pointing to existing and on-the-way measures that satisfy each.

EPA also proposes to determine that the District has satisfied the consultation requirements of 40 CFR 51.308(f)(2)(ii). The District participated in and provided documentation of the MANE-VU intra- and inter-RPO consultation processes and addressed each of the MANE-VU Asks, either by explaining why an Ask is not applicable or providing information on the measures it has in place that satisfy an Ask. 72 EPA proposes to find that the District's explanations with regard to Asks 1 and 2, for which the District did not offer any measures pursuant to MANE-VU's requests, are reasonable given the District's lack of sources that fit the applicability criteria for those Asks (EGUs with capacity ≥25 MW and sources with the potential for ≥3.0 m − 1 visibility impact).

The District chose to rely on MANE-VU's technical information, modeling, and analysis to support development of its long-term strategy. EPA proposes to find that the documentation developed by MANE-VU and provided and referenced by the District in its submission satisfies the requirements of 40 CFR 51.308(f)(2)(iii). As required in 40 CFR 51.308(f)(2)(iii), the emissions information considered to determine what is necessary to make reasonable progress included information on emissions for the most recent year for which the state has submitted triennial emissions data to EPA (or a more recent year), with a 12-month exemption period for newly submitted data. The District's submission includes emissions inventory data from 2014, which was the most recent year of data that the District had submitted to EPA to meet the triennial reporting requirement within 12 months prior to the District's submittal in November 2019. 73 EPA proposes to find that the District has satisfied the emission inventory requirement in 40 CFR 51.308(f)(2)(iii).

EPA also proposes to find that the District considered the five additional factors in 40 CFR 51.308(f)(2)(iv) in developing its long-term strategy. Pursuant to 40 CFR 51.308(f)(2)(iv)(A), the District noted that ongoing federal emission control programs, including boiler and Reciprocating Internal Combustion Engine (RICE) National Emission Standards for Hazardous Air Pollutants (NESHAP) requirements, portable fuel container rules, and New Source Performance Standards (NSPS) for stationary compression ignition engines, would impact emissions from point and nonpoint sources in the second implementation period. For the on-road and non-road source categories, the District identified equipment turnover, fuel requirements, and the transportation conformity regulation (May 28, 2010, 75 FR 29894) as continuing factors that contribute to emission reductions through 2028. On-going measures from various source categories that the District considered in developing its long-term strategy were the NOx emissions budget approved by EPA on February 22, 2016 (81 FR 8656), NOx RACT requirements for Combustion Turbines (February 24, 2020, 85 FR 10295), and the sulfur content of fuel oil rule (October 11, 2016, 81 FR 70020).

The District's consideration of measures to mitigate the impacts of construction activities as required by 40 CFR 51.308(f)(2)(iv)(B) includes discussion of a report that found that, from a regional haze perspective, crustal material from anthropogenic sources does not play a major role in visibility impairment at MANE-VU Class I areas. 74 While construction activities can be responsible for direct PM emissions in the region, the dust settles out of the air relatively close to the sources and does not impact visibility at distant Class I areas significantly. The District cited its `Control of Fugitive Dust' regulation which requires reasonable precautions to minimize emissions of fugitive dust (August 28, 1995, 60 FR 44431) as one measure used to control PM emissions in the District. A summary of the PM emission inventory in the District can be found in Section IV.H. of this rulemaking. 75

Source retirements and replacement schedules are addressed pursuant to 40 CFR 51.308(f)(2)(iv)(C) in section 2.7.3 of the District's submission. The shutdown of only one large EGU or industrial source in the District—the Pepco Benning Road Generation Station, which retired in 2012—is reflected in the emissions inventories used for the MANE-VU contribution assessment. In addressing smoke management as required in 40 CFR 51.308(f)(2)(iv)(D), the District explained that it is an urban area and does not have agricultural or prescribed forest burns and thus does not have a smoke management plan. 76 The District also asserts that additional measures to mitigate smoke emissions from agricultural and forest fires are not needed in its SIP, although the submission does cite a regulation that limits seasonal open burning (August 28, 1995, 60 FR 44431).

The District discussed its consideration of the anticipated net effect of projected changes in emissions as required by 40 CFR 51.308(f)(2)(iv)(E) by explaining how MANE-VU's visibility modeling for 2028 incorporates such projected changes. MANE-VU conducted photochemical modeling for the 2018-2028 implementation period after consultation with states within and outside of the RPO. The 2028 base case considers only on-the-books controls, and a 2028 control case considers implementation of the MANE-VU Asks. For the District, the 2028 base-case modeling included the District's measures pursuant to Asks 4 and 5, while the low sulfur fuel oil measure consistent with Ask 3 was included only in the 2028 control case modeling. The SIP revision notes the projected visibility conditions in five Class I areas—Brigantine Wilderness, Otter Creek/Dolly Sods Wildernesses, James River Face Wilderness, and Shenandoah National Park—on the most impaired and clearest days under the 2028 base case. 77

Because the District has considered each of the five additional factors, discussed the measures it has in place to address each (or discussed why such measures are not needed), and, where relevant, explained how each factor informed MANE-VU's technical analysis for second implementation period planning for reasonable progress, EPA proposes to find that the District has satisfied the requirements of 40 CFR 51.308(f)(2)(iv).

Section 51.308(f)(3)(i) requires a state in which a Class I area is located to establish reasonable progress goals-one each for the most impaired and clearest days-reflecting the visibility conditions that will be achieved as a result of implementing the long-term strategy. The District is not required to establish RPGs because it does not have a Class I area.

Section 51.308(f)(3)(ii) applies in circumstances in which a Class I area's RPG for the most impaired days represents a slower rate of visibility improvement than the uniform rate of progress calculated under 40 CFR 51.308(f)(1)(vi). Under 40 CFR 51.308(f)(3)(ii)(B), a state that contains sources that are reasonably anticipated to contribute to visibility impairment in such a Class I area must demonstrate that there are no additional emission reduction measures that would be reasonable to include in its long-term strategy. The District's SIP revision included the modeled MANE-VU 2028 visibility projections at nearby Class I areas. 78 While these projections may not represent the final RPGs for these Class I areas, all of the 2028 projections for the most impaired days at these areas (Brigantine, Dolly Sods/Otter Creek, Shenandoah, and James River Face) are well below the respective 2028 glidepaths. In addition, we note that the District's largest contribution is to Brigantine Wilderness in New Jersey. New Jersey submitted its regional haze SIP to EPA on March 26, 2020 and the proposed RPG for Brigantine was also well below the 2028 glidepath. 79 EPA proposes to determine that the District has satisfied the applicable requirements of 40 CFR 51.308(f)(3) relating to reasonable progress goals.

Section 51.308(f)(6) specifies that each comprehensive revision of a state's regional haze SIP must contain or provide for certain elements, including monitoring strategies, emissions inventories, and any necessary reporting and recordkeeping measures needed to assess and report on visibility. A main requirement of this subsection is for states with Class I areas to submit monitoring strategies for measuring, characterizing, and reporting on visibility impairment. The District does not have a Class I area and therefore its SIP is not required to provide for a monitoring strategy and associated requirements. It is also not subject to the requirements of 40 CFR 51.308(f)(6)(i), (ii), and (iv), which apply only to states with Class I areas and pertain to the establishment of monitoring sites and reporting and use of monitoring data. However, the District's SIP is required to provide for procedures by which monitoring data and other information are used in determining the contribution to emissions to visibility impairment in other states. 40 CFR 51.308(f)(6)(iii). Pursuant to this requirement, the District commits to continuing support of ongoing IMPROVE visibility monitoring in Class I areas. 80

The District asserts that it is subject only to the requirements of 40 CFR 51.308(f)(6)(iii). 81 EPA disagrees with this statement; the District is also subject to 40 CFR 51.308(f)(6)(v) and (vi), which apply to all states regardless of whether it has a Class I area. Despite the District's misstatement, EPA is proposing to find that its SIP provides for the necessary elements to satisfy the applicable requirements.

Section 51.308(f)(6)(v) requires each state, including states without Class I areas, to provide for an inventory of emissions of pollutants that are reasonably anticipated to cause or contribute to visibility impairment, including emissions for the most recent year for which data are available and estimates of future projected emissions. It also requires a commitment to update the inventory periodically. The District provides for emissions inventories and estimates for future projected emissions by participating in the MANE-VU RPO and complying with the AERR. In 40 CFR part 51, subpart A, the AERR requires states and the District of Columbia to submit emissions inventories for criteria pollutants to EPA's Emissions Inventory System (EIS) every three years. The emission inventory data is used to develop the NEI, which provides for a triennial state-wide inventory of pollutants that are reasonably anticipated to cause or contribute to visibility impairment. MANE-VU also developed projections of future emissions of visibility impairing pollutants and in its submission the District commits to continue coordinating with MANE-VU on progress reports, SIP revisions, and face-to-face consultation meetings as necessary to maintain and improve the visibility in Class I Federal areas. 82

Section 2.20 of the District's second implementation period regional haze SIP submission includes tables of National Emissions Inventory (NEI) data. The source categories of the emissions inventories included are: (1) Point sources; (2) nonpoint sources; (3) non-road mobile sources; and (4) on-road mobile sources. The point source category is further divided into Air Markets Program Data (AMPD) point sources and non-AMPD point sources. 83 The District included NEI emissions inventories for the following years: 2002 (one of the regional haze program baseline years), 2008, 2011, and 2014; and for the following pollutants: SO 2 , NO X , PM 10 , and NH 3 . The District's SIP revision was submitted in November 2019 and the 2017 NEI was not published until 2020; therefore, the year of the most recent NEI at the time of submission to EPA was 2014. There are additional data from the years of 2016 and 2017 for SO 2 and NO X from the only AMPD source listed in the District: The GSA Central Heating Plant. While not included in its regional haze submission, the District has a complete NEI for 2017.

As required in 40 CFR 51.308(f)(6)(v), states must commit to update the inventory of emissions of pollutants that are reasonably anticipated to cause or contribute to visibility impairment periodically. The District chose to rely on the NEI as the inventory of these emissions. Under the AERR, states are required to submit estimates for all emissions categories to EPA on a three-year cycle. EPA finds that the requirements to periodically update the national inventory for all emission categories suffices to meet the requirement to commit to updating a visibility impairing pollutant inventory for the District.

Section 51.308(f)(6)(v) also requires states to include estimates of future projected emissions and include a commitment to update the inventory periodically. The District explains in its submission that MANE-VU projected emissions to 2028, which is the end of the second implementation period. 84 MANE-VU completed two 2028 projected emissions modeling cases—a 2028 base case that considers only on-the-books controls and a 2028 control case that considers implementation of the MANE-VU Asks. 85 For the District, the only emission reductions from new measures included in the control case was implementation of the low sulfur fuel oil standard Ask 3. EPA proposes that the District has met the requirements of 40 CFR 51.308(f)(6)(v) by its continued participation in MANE-VU and on-going compliance with the AERR, and that no further elements are necessary at this time for the District to assess and report on visibility pursuant to 40 CFR 51.308(f)(6)(vi).

Section 51.308(f)(5) requires that periodic comprehensive revisions of states' regional haze plans also address the progress report requirements of 40 CFR 51.308(g)(1) through (5). The purpose of these requirements is to evaluate progress towards the reasonable progress goal for each Class I area within the state and each Class I area outside the state that may be affected by emissions from within that state. Section 51.308(g)(1) and (2) apply to all states and require a description of the status of implementation of all measures included in a state's first implementation period regional haze plan and a summary of the emission reductions achieved through implementation of those measures. Section 51.308(g)(3) applies only to states with Class I areas within their borders and requires such states to assess current visibility conditions, changes in visibility relative to baseline (2000-2004) visibility conditions, and changes in visibility conditions relative to the period addressed in the first implementation period progress report. Section 51.308(g)(4) applies to all states and requires an analysis tracking changes in emissions of pollutants contributing to visibility impairment from all sources and sectors since the period addressed by the first implementation period progress report. This provision further specifies the year or years through which the analysis must extend depending on the type of source and the platform through which its emission information is reported. Finally, 40 CFR 51.308(g)(5), which also applies to all states, requires an assessment of any significant changes in anthropogenic emissions within or outside the state have occurred since the period addressed by the first implementation period progress report, including whether such changes were anticipated and whether they have limited or impeded expected progress towards reducing emissions and improving visibility.

The District's submission describes the status of the measures of the long-term strategy from the first implementation period and contains a summary of the emission reductions achieved by implementing those measures. 86 As a member of MANE-VU, the District considered the MANE-VU Asks and adopted corresponding measures into its long-term strategy for the first implementation period.

One of the MANE-VU Asks from the first implementation period was for states to address emissions from 167 EGUs across the middle and eastern United States. The District did not have any of those sources within its borders, and so did not incorporate any measures in response to this Ask into its plan. The District did have two units that met the eligibility requirements for BART, but the facility—the Pepco Benning Road Generation Station—took enforceable permit conditions to shut down both units in 2012 and therefore did not undergo BART determinations. The shutdown met another of the MANE-VU Asks, i.e., timely implementation of BART, by elimination of the would-be BART sources and their emissions from the inventory entirely. The emission reductions achieved through these source closures are summarized in the source retirement section of the submission. 87 Lastly, in response to a MANE-VU Ask in 2015 the District promulgated a rule to reduce the sulfur content in commercial heating oil and to prohibit the use of heavy heating oils that contain high levels of sulfur. EPA approved this rule into the SIP on May 1, 2017. 82 FR 20270. The SO 2 and NO X emission reductions achieved by implementing this measure are presented in section 2.18 of the District's submission.

EPA proposes to find that the District has met the requirements of 40 CFR 51.308(g)(1) and (2) because its SIP submission describes the measures included in the long-term strategy from the first implementation period, as well as the status of their implementation and the emission reductions achieved through such implementation.

Section 51.308(g)(3) requires states with Class I areas to report on the visibility conditions and changes at those areas. The District does not have any Class I areas and is not required to address this provision.

Pursuant to 40 CFR 51.308(g)(4), the District provided a summary of emissions of SO 2 , NO X , PM 10 , and NH 3 from all sources and activities, including from point, nonpoint, non-road mobile, and on-road mobile sources, for the time period from 2002 to 2014. 88 The District explained that 2014 was the most recent year for which it had submitted emission estimates to fulfill the requirements of part 51 subpart A (the AERR).

The emissions information submitted by the District indicates that SO 2 emissions decreased over the 2002 through 2014 period. Due to source retirements, the District had zero tons of SO 2 emissions in 2014 from EGUs that report to EPA's AMPD and the submission indicates these emissions continued to be zero in 2016 and 2017. SO 2 emissions from non-AMPD point sources and nonpoint, non-road, and on-road sources all declined steadily from 2002 to 2014. 89

Total NO X emissions have also declined from 2002 to 2014, although not all categories have shown a consistent decrease. Reductions in NO X emissions from AMPD sources are primarily due to EGU retirements, while reductions in non-road and on-road NO X are due to a range of federal requirements for different types of engines and fuels. 90

Emissions of PM 10 decreased overall from 2002 to 2014, with point, nonpoint, and non-road categories having lower emissions in 2014 and on-road sources showing an increase in PM 10 emissions. Similarly, NH 3 emissions in the District were lower overall in 2014 relative to 2002, although emissions from nonpoint sources do show an increase relative to the baseline. 91

EPA is proposing to find that the District has satisfied the requirements of 40 CFR 51.308(g)(4) by providing emissions information for SO 2 , NO X , PM 10 , and NH 3 broken down by type of source. At the time of the District's SIP submission, the year of the most recent data submitted to NEI was 2014; therefore, the endpoint of the analysis of changes in emissions is 2014. The District also provided SO 2 and NO X data for sources that report to EPA's AMPD for 2016 and 2017.

The District uses the emissions trend data to support the assessment that anthropogenic haze-causing pollutant emissions in the District have decreased during the reporting period and that changes in emissions have not limited or impeded progress for the regional haze program. EPA is proposing to find that the District has met the requirements of 40 CFR 51.308(g)(5).

Section 51.308(i)(2)'s FLM consultation provision requires that a state must provide FLMs with an opportunity for consultation that is early enough in the state's policy analyses of its long-term strategy emission reduction obligation for the FLMs' input to meaningfully inform the state's decisions. If the consultation has taken place at least 120 days before a public hearing or public comment period, the opportunity for consultation will be deemed early enough, however, the opportunity for consultation must be provided at least sixty days before a public hearing or public comment period at the state level. Section 51.308(i)(2) also provides two substantive topics which FLMs must be provided an opportunity to discuss with states, and 40 CFR 51.308(i)(3) requires states, in developing their implementation plans, to include a description of how they addressed FLMs' comments.

The states in the MANE-VU RPO conducted FLM consultation early in the planning process concurrent with the state-to-state consultation that formed the basis of the RPO's decision making process. As part of the consultation, the FLMs were given the opportunity to review and comment on the technical documents developed by MANE-VU. The FLMs were invited to attend the intra- and inter-RPO consultations calls among states and at least one FLM representative was documented to have attended seven intra-RPO meetings and all inter-RPO meetings. The District participated in these consultation meetings and calls. 92

As part of this early engagement with the FLMs, in April 2018 the NPS sent letters to the MANE-VU states requesting that they consider evaluating particular sources for inclusion in their long-term strategies. 93 The sources the NPS identified were selected based on a Q/d analysis it performed using cumulative NO X and SO 2 emissions as the quantity variable Q and the distance to the nearest national park as the variable d. Sources with a Q/d greater than or equal to 1 were included on the 2018 NPS source list; the GSA Central Heating Plant met this threshold based on 2014 NEI data and its proximity to Shenandoah National Park. The District noted that the NPS's methodology did not account for meteorological considerations such as wind direction, and that it disagreed with the NPS's conclusion that the GSA Central Heating Plant was reasonably anticipated to impair visibility at Shenandoah National Park. However, the District decided to respond to the consultation request by explaining the existing emission control measures at the facility. The District's explanation is summarized in section IV.E.2. of this document (addressing EPA's evaluation of the District's response to MANE-VU Ask 2).

On April 10, 2019, the District submitted a draft Regional Haze SIP to the U.S. Forest Service, the U.S. Fish and Wildlife Service, and the National Park Service for a 60-day review and comment period pursuant to 40 CFR 51.308(i)(2). 94 The U.S. Forest Service commented that the draft it received was acceptable and no changes were needed. 95 The National Park Service and the U.S. Fish and Wildlife Service did not provide comments during this consultation period. The District published its regional haze SIP in the District of Columbia Register for a 30-day comment period within the District on August 30, 2019. A public hearing was held on September 30, 2019. No comments were received. Consistent with 40 CFR 51.308(i)(2), the opportunity for FLM consultation took place more than 120 days prior to holding any public hearing.

For the reasons stated above, EPA proposes to find that the District has met its requirements under 40 CFR 51.308(i) to consult with the FLMs on its regional haze SIP for the second implementation period. The District committed in its SIP to ongoing consultation with the FLMs on regional haze issues throughout the implementation period, consistent with the requirement of 40 CFR 51.308(i)(4). 96

Section 110(k)(6) of the CAA provides EPA with authority to make corrections to prior SIP actions that are subsequently found to be in error in the same manner as the prior action, and to do so without requiring any further submission from the state. This determination and the basis must be provided to the state and the public.

EPA approved the District's revision to the DC NO X RACT rule (20 DCMR 805) into the SIP on February 24, 2020 (85 FR 10295). The revisions to that rule amended the regulation to remove old provisions and replace them with new and/or more stringent regulations or controls for combustion turbines and associated heat recovery steam generators and duct burners and amended the applicability provisions of these regulations to include all combustion turbines and associated heat recovery steam generators and duct burners, among other related revisions and updates to the rule.

After we finalized the rulemaking, EPA discovered that we had erred in identifying the particular sections of the DC NO X RACT rule for incorporation by reference into the DC SIP. In several instances, the substance of the District's revisions to its rule in section 805.4(a) and (b) were correctly represented and evaluated in EPA rulemaking, but were cited as being in section 805.1 of the DC NO X RACT rule. The District also submitted revisions to section 805.1(a) and 805.1(a)(2), which were appropriately discussed and correctly cited in the rulemaking (see 84 FR at 47918, September 11, 2019). Throughout the prior rulemaking we incorrectly referred to section 805.4 as being section 805.1 in both in the narrative and regulatory table.

EPA is proposing to use our authority under CAA section 110(k)(6) to correct errors in the regulatory citation in our February 24, 2020 final action on the DC NO X RACT rule and to codify this correction by revising the appropriate entries under 40 CFR 52.470 (Identification of Plan). EPA previously proposed and took public comment on the substance of the DC NO X RACT rule and our evaluation thereof in the September 11, 2019 NPRM (84 FR 47914). Because this proposed rulemaking is limited to correcting our error in conflating the citations for 805.1 and 805.4, the scope of our present request for comment is limited to whether we are properly effectuating this correction and we will not be taking comment on the substance of the DC NO X RACT rule. Therefore, as required in CAA section 110(k)(6), in the same manner as the prior action, EPA is proposing for public review and comment the correction to the citations of the provisions which were approved in the previous action. Specifically, we are proposing to amend the table in paragraph (c) of 40 CFR 52.470 to correctly reflect our approval of 20 DCMR sections 805.1(a), 805.1(a)(2), 805.4(a) and 805.4(b), as described in our February 24, 2020 final rule action. This proposal is separate from the proposal to approve the DC DOEE 2019 Regional Haze SIP submission, and as such EPA is taking public comments on the citation correction through this docket, but as a severable action.

EPA is proposing to approve the revision to the District of Columbia SIP submitted by the District through DC DOEE on November 8, 2019. EPA is proposing to approve the District's SIP submission as satisfying the regional haze requirements for the second implementation period.

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 proposed 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);

• 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 (Public Law 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, this proposed rulemaking, the District's regional haze state implementation plan for the second implementation period and correction for the RACT rule for major stationary sources of NO X , does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

Title X of the Public Health Service Act (PHS Act or the Act) (42 U.S.C. 300 through 300a-6) was enacted in 1970 by Public Law 91-572 as a means of “making comprehensive voluntary family planning services readily available to all persons desiring such services.”  1 Section 1001 of the Act (42 U.S.C. 300(a)), as amended, authorizes the Secretary of Health and Human Services “to make grants to and enter into contracts with public or nonprofit private entities to assist in the establishment and operation of voluntary family planning projects which shall offer a broad range of acceptable and effective family planning methods and services (including natural family planning methods, infertility services, and services for adolescents).” Section 1006 of the Act (42 U.S.C. 300a-4) ensures that priority of services is given to clients from low-income families and authorizes the Secretary to promulgate regulations governing the program.

Enacted as part of the original Title X legislation, Section 1008 of the Act (42 U.S.C. 300a-6) directs that “None of the funds appropriated under this title shall be used in programs where abortion is a method of family planning.” The Conference Report accompanying the legislation described the intent of this provision as follows:

Since 1970 when Title X was first enacted, Congress has amended the law several times both through changes to the Title X statute itself and through yearly appropriations riders. For example, in 1975, Congress amended Title X to include “natural family planning methods” as part of the broad range of family planning methods to be offered by Title X projects. 2 PHS Act 1001(a) (42 U.S.C. 300(a)). In 1978, Congress amended Title X to codify HHS past practice by specifically requiring that Title X projects include “services for adolescents.”  3 PHS Act 1001(a) (42 U.S.C. 300(a)). The Act was again amended in 1981 to provide that “[t]o the extent practicable, entities which receive grants or contracts under this subsection shall encourage family participation in projects under this subsection.”  4 PHS Act sec. 1001(a) (42 U.S.C. 300(a)).

Congress has also imposed additional requirements through annual appropriations riders. For example, since Fiscal Year (FY) 1996, the annual Title X appropriation includes the proviso that “all pregnancy counseling shall be nondirective.”  5 See, e.g., Consolidated Appropriations Act, 2021, Public Law 116-260, Div. H, 134 Stat 1182, 1570 (2021). Also since FY 1996, the Title X appropriation has directed that Title X funds “shall not be expended for any activity (including the publication or distribution of literature) that in any way tends to promote public support or opposition to any legislative proposal or candidate for public office.” Id. Since FY 1998, Congress has included a rider in HHS's annual appropriations act that provides that “[n]one of the funds appropriated in this Act may be made available to any entity under Title X of the PHS Act unless the applicant for the award certifies to the Secretary that it encourages family participation in the decision of minors to seek family planning services.” 6 See, e.g., Consolidated Appropriations Act, 2021, Public Law 116-260, Div. H, sec. 207, 134 Stat. 1182, 1590. The same appropriations rider also requires that such an applicant certify to the Secretary that it “provides counseling to minors on how to resist attempts to coerce minors into engaging in sexual activities.” Id. And, since FY 1999, in a separate rider, Congress has required that, “[n]otwithstanding any other provision of law, no provider of services under Title X of the PHS Act shall be exempt from any State law requiring notification or the reporting of child abuse, child molestation, sexual abuse, rape, or incest.”  7 See, e.g., Consolidated Appropriations Act, 2021, Public Law 116-260, Div. H, sec. 208, 134 Stat. 1182, 1590 (2021).

The Department first promulgated regulations for the Title X program in 1971 but did not directly address section 1008. 36 FR 18465 (Sept. 15, 1971). With experience, the Department interpreted section 1008 to prohibit grantees  8 from promoting or encouraging abortion as a method of family planning in any way and to require that Title X activities be separate and distinct from any abortion activities. 53 FR 2922, 2923 (Feb. 2, 1988) (describing the Department's interpretation in the early years of the program). In 1981, the Department built upon this experience and issued guidelines directing grantees to provide “nondirective counseling” to pregnant clients “upon request” including: (1) Prenatal care and delivery; (2) infant care, foster care, or adoption; and (3) pregnancy termination. Counseling included “referral upon request.” OPA, Program Guidelines for Project Grants for Family Planning Services at 13 (1981).

In 1988, reacting in large part to a directive from President Reagan, the Department changed course. 53 FR 2922 (Feb. 2, 1988). Regulations promulgated then—commonly called the “gag rule”—prohibited the discussion of or referral for abortion. The regulations also required grantees to maintain strict physical and financial separation between Title X projects and abortion related activities, to be determined by the “facts and circumstances” of each grantee. Additionally, the regulations prohibited lobbying, education, dues-paying, or any other activities which could be interpreted to encourage or promote abortion as a method of family planning.

The 1988 regulations were immediately subject to multiple lawsuits and ultimately upheld by the Supreme Court in Rust v. Sullivan, 500 U.S. 173 (1991). In Rust, the Supreme Court held that section 1008 was “ambiguous” and “at no time did Congress directly address the issues of abortion counseling, referral or advocacy.” Id at 185. The Court was nearly unanimous on this point. Blackmun dissenting at 207; O`Connor Dissenting at 223. 9 Given the lack of clarity regarding section 1008, the Court deferred to the Secretary's construction of the statute as “reasonable” under Chevron U.S.A. v. NRDC, 467 U.S. 837 (1984).

The Court also upheld the regulations against constitutional attack under the Fifth and First Amendments. Following recent precedent, the Court held that the Government could constitutionally subsidize some activities over others and that plaintiffs were still free to pursue abortion related activities and speech “when they are not acting under the auspices of the Title X project.” Id. at 199.

On November 5, 1991, responding to widespread concerns over the regulation's overreach into the doctor-patient relationship, President Bush issued a directive to the Department to allow for open communications between doctors and patients for all aspects of their medical condition. See Nat'l Family Planning & Reprod. Health Ass'n v. Sullivan, 979 F.2d 227 (D.C. Cir 1992). However, the Department did not engage in rulemaking to carry out the directive, as required by the Administrative Procedure Act. Therefore, the D.C. Court of Appeals upheld a lower court injunction prohibiting the directives from taking effect. Id.

Almost immediately after taking office, President Clinton issued a memorandum to the Secretary of HHS, directing suspension of the “gag rule” and commencement of new rulemaking regarding the Title X program. 58 FR 7455 (Feb. 5, 1993). The Department suspended the 1988 regulations and adopted compliance standards predating the 1988 rules on an interim basis. 58 FR 7462 (Feb. 5, 1993). The Department also sought comment on adopting as final the rules and guidance in effect prior to the 1988 rules. 58 FR 7464 (Feb. 5, 1993). In response to this proposed rulemaking, the Department received 146 comments, and finalized new Title X rules in July of 2000. 65 FR 41270 (July 3, 2000). On that same day, the Department published interpretations relating to the statutory requirement that no funds appropriated under Title X of the Public Health Service Act be used in programs in which abortion is a method of family planning. 65 FR 41281 (July 3, 2000).

The new rules rescinded the 1988 rules prohibiting counseling and referral for abortion. They also eliminated the provisions requiring strict physical and financial separation between Title X projects and abortion related activities, while still requiring that abortion and Title X activities are separated by more than “mere bookkeeping.” 65 FR 41270, 41271. Section 59.10 concerning lobbying restrictions was also repealed, while still adhering to long established interpretations of the statute forbidding promotion of abortion through advocacy activities. Id. at 41277. Finally, the Department codified the 1981 guidance requiring, upon request of the pregnant patient, nondirective counseling and referral, regarding any option requested: “(1) prenatal care and delivery; (2) infant care, foster care, or adoption; and (3) pregnancy termination.” Id. at 41279 [42 CFR 59.5(a)(5) (2000 reg)].

In promulgating the 2000 regulations, the Department concluded that revoking the 1988 regulations was within its administrative discretion and that there was no evidence the “gag rule” would—or could—work in practice. The Department concluded experience had taught that the rules and policies previous to the 1988 regulations had been accepted by grantees and enabled the program to operate successfully during virtually its entire history. Additionally, the Department relied on the direction from Congress in appropriations riders beginning in 1996 (Pub. L. 104-134), requiring that “all pregnancy counseling be nondirective,” believing any referral to a prenatal or other provider when not requested would raise real questions of coercion. The rule also incorporated referrals as a “logical and appropriate outcome” of nondirective counseling and consistent with the requirement that the project provide referrals for any medical services not provided by the project [42 CFR 59.5(b)(1)]. Id. 41274. For two decades after these rules were finalized (and nearly three decades after they had been in place following the 1988 rule's suspension in 1993), Title X faced no litigation or controversy over these regulations. 10

In 2018, under a new Administration, the Department proposed new rules again. 83 FR 25502 (June 1, 2018). These rules largely mirrored the 1988 regulations and were finalized in 2019. 84 FR 7714 (March 24, 2019). The Department promulgated the 2019 rules because of its stated view, at that time, that they represented the best interpretation of the statute and provided the most appropriate guidance for compliance with the statutory provisions, including section 1008. While pointing to no direct violations of Title X, associated laws, or the 2000 regulations, the Department believed the 2000 regulations “fostered an environment of ambiguity surrounding appropriate Title X activities.” Id. at 7721. Therefore, “bright line rules” would ameliorate any confusion by grantees and the public.

The Department also cited several conscience protection laws enacted by Congress to support the changes to the 2000 regulations. These laws prohibit public health service grantees from requiring individuals to assist in the performance of health service activities against their religious beliefs or convictions, 42 U.S.C. 300a-7(d), and prohibit discrimination against both individual and institutional providers for their refusal to provide, cover, or refer for abortions. Consolidated Appropriations Act, 2021, Public Law 116-260, Div. H, sec. 507(d) (2020), Consolidated Appropriations Act, 2021, Public Law 116-260, Div. H, sec. 507(d) (2020). The Department concluded in 2019 that the 2000 regulations, if enforced against objecting grantees, would be inconsistent with these statutory protections and dissuade otherwise qualified providers from applying for Title X funds.

The 2019 rules also re-imposed the physical separation provisions of the 1988 rule, as well re-codifying the lobbying restrictions. Additionally, the rule added requirements on grantees and subrecipients regarding compliance with state reporting laws, as well as expanded application and record-keeping requirements. And, with respect to minors, the 2019 rule required providers to document what specific actions were taken to encourage family participation.

As to nondirective counseling and referral for abortion, in recognition of the Congressional direction for nondirective counseling on abortion in yearly appropriations riders, the 2019 rule allowed, but did not require, counseling by grantees, limited to physicians and advanced care providers. Id. at 7744. However, the Department believed that the abortion referral requirement was inconsistent with section 1008 and that, though permissible for nearly the entire history of the program, such referrals must be prohibited. Id.

Litigation over the 2019 rule immediately ensued. The Department was sued by 23 states, every major medical organization, Title X grantee organizations, and individual grantees. The suits were lodged in multiple district courts and alleged a variety of claims under the Administrative Procedure Act, the Affordable Care Act, and the Constitution. The rule was ultimately upheld by an en banc Court of Appeals for the Ninth Circuit and enjoined (only as to the state of Maryland) by a district court in Maryland in a decision upheld by the en banc Court of Appeals for the Fourth Circuit. Both court of appeals decisions were issued over substantial dissents.

In California v. Azar, 950 F.3d 1067 (9th Cir. 2020), the Ninth Circuit relied heavily on Rust in upholding the rule. A majority of the en banc panel found that the Department “could” interpret section 1008 as it did in the 2019 rule, and nothing in subsequent legislation prevented this reading. Id. at 1085. The Ninth Circuit upheld the rule against an arbitrary and capricious challenge, stating, “that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better.” Id. at 1097 (emphasis in original). Conversely, a majority of the Fourth Circuit found the Department's 2019 rule arbitrary and capricious. Mayor of Baltimore v. Azar, 973 F.3d 258 (4th Cir. 2020). The Fourth Circuit also held the 2019 rule violated the non-directive mandate. 11

1. Submitting Classified Business Information. Do not submit CBI to EPA website https://www.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 submitting comments, remember to:

• Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).

• Follow directions—The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) Part or section number.

• Explain why you agree or disagree, suggest alternatives, and substitute language for your requested changes.

• Describe any assumptions and provide any technical information and/or data that you used.

• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

• Provide specific examples to illustrate your concerns, and suggest alternatives.

• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

• Make sure to submit your comments by the comment period deadline identified.

3. Instructions: All submissions received must include the Docket ID No. for this rulemaking. Comments received may be posted without change to https://;www.regulations.gov/, including any personal information provided. For detailed instructions on sending comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document. Out of an abundance of caution for members of the public and our staff, the EPA Docket Center and Reading Room are closed to the public, with limited exceptions, to reduce the risk of transmitting COVID-19. Our Docket Center staff will continue to provide remote customer service via email, phone, and webform. We encourage the public to submit comments via https://www.regulations.gov/ or email, as there may be a delay in processing mail and faxes. Hand deliveries and couriers may be received by scheduled appointment only. For further information on EPA Docket Center services and the current status, please visit us online at https://www.epa.gov/dockets. The EPA continues to carefully and continuously monitor information from the Centers for Disease Control and Prevention (CDC), local area health departments, and our Federal partners so that we can respond rapidly as conditions change regarding COVID-19.

The EPA is amending an existing EPAAR clause to further address electronic invoicing at EPA via the Invoice Processing Platform (IPP). Currently EPA has one clause that addresses IPP, which is clause 1552.232-70, Submission of Invoices. Clause 1552.232-70 is written for cost-reimbursable and time-and-materials contracts and orders where considerable supporting documentation is required. Such documentation is necessary for those types of contracts and orders but is not necessary for other contract types, like firm-fixed-price (FFP). Therefore, the subject clause is being amended to include other contract and order types like FFP, when it is not suitable to use clause 1552.232-70 in its current form.

The proposed rule amends EPA Acquisition Regulation (EPAAR) part 1532, Contract Financing, by amending § 1532.908, Contract Clauses. EPAAR Subpart 1552.2, Texts of Provisions and Clauses, is amended by modifying EPAAR § 1552.232-70 and also changing the clause title, from Submission of Invoices to Additional Instructions for Submission of Electronic Invoices via the Invoice Processing Platform (IPP).

1. EPAAR § 1532.908 amends the prescription for use of § 1552.232-70 by adding a prescription for Alternate 2 use.

2. EPAAR § 1552.232-70, Submission of Invoices, is changed to Additional Instructions for Submission of Electronic Invoices via the Invoice Processing Platform (IPP), and adds an Alternate 2.

This action is not a “significant regulatory action” under the terms of Executive Order (E.O.) 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the E.O.

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b).

The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute; unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impact of this proposed rule on small entities, “small entity” is defined as: (1) A small business that meets the definition of a small business found in the Small Business Act and codified at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; or (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. After considering the economic impacts of this rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, because the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the proposed rule on small entities” 5 U.S.C. 503 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule. This action establishes a new EPAAR clause that will not have a significant economic impact on a substantial number of small entities. We continue to be interested in the potential impacts of the rule on small entities and welcome comments on issues related to such impacts.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, Pub. L. 104-4), establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, Local, and Tribal governments and the private sector. This rule contains no Federal mandates (under the regulatory provisions of the Title II of the UMRA) for State, Local, and Tribal governments or the private sector. The rule imposes no enforceable duty on any State, Local or Tribal governments or the private sector. Thus, the rule is not subject to the requirements of sections 202 and 205 of the UMRA.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and Local officials in the development of regulatory policies that have federalism implications. “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government as specified in Executive Order 13132.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This rule does not have tribal implications as specified in Executive Order 13175.

Executive Order 13045, entitled “Protection of Children from Environmental Health and Safety Risks” (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be economically significant as defined under E.O. 12886, and (2) concerns an environmental health or safety risk that may have a proportionate effect on children. This rule is not subject to E.O. 13045 because it is not an economically significant rule as defined by Executive Order 12866, and because it does not involve decisions on environment health or safety risks.

This action is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use” (66 FR 28335 (May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.

Section 12(d) (15 U.S.C. 272 note) of the National Technology Transfer and Advancement Act of 1995, Public Law 104-113, directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g., materials specifications, test methods, sampling procedures and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This action does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.

Executive Order 12898 (59 FR 7629 (February 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment in the general public.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a major rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 804(2) defines a “major rule” as any rule that the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget finds has resulted in or is likely to result in (1) an annual effect on the economy of $100,000,000 or more; (2) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or (3) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. EPA is not required to submit a rule report regarding this action under section 801 as this is not a major rule by definition.

For the reasons set forth in the preamble, EPA proposes to amend EPAAR parts 1532 and 1552 as follows:

Executive Summary

Why we need to publish a rule. Under section 4(d) of the Act, whenever any species is listed as a threatened species, we are required to issue any regulations deemed necessary and advisable to provide for the conservation of such species. Also, any species that is determined to be endangered or threatened under the Act requires critical habitat to be designated, to the maximum extent prudent and determinable. The Panama City crayfish is proposed as a threatened species under the Act, and this document proposes regulations we deem necessary and advisable under section 4(d) of the Act, and also proposes to designate critical habitat. Designations and revisions of critical habitat can only be completed by issuing a rule. In light of the time that has passed since the publication of the proposed listing rule and the receipt of new scientific information, we are also reopening the comment period for the proposed listing rule.

What this document does. We are concurrently reopening the comment period for the proposed listing rule, proposing a 4(d) rule, and proposing to designate critical habitat for the Panama City crayfish. A draft economic analysis on impacts expected from the critical habitat proposal is also available.

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. Our proposed rule identified habitat loss and fragmentation from development (Factor A) as a primary threat to the Panama City crayfish, making the species warranted for protection as a threatened species under the Act.

The Act provides a specific list of prohibitions for endangered species under section 9, but the Act does not automatically extend these same prohibitions to threatened species. Under section 4(d), the Act instructs the Secretary of the Interior (Secretary) to issue any protective regulations deemed necessary and advisable for the conservation of threatened species. It also indicates the Secretary may extend some or all of the prohibitions in section 9 to threatened species. We are proposing a 4(d) rule that specifically tailors measures that provide for the conservation of the Panama City crayfish.

Section 4(a)(3) of the Act requires the Secretary to designate critical habitat concurrent with listing to the maximum extent prudent and determinable. Section 3(5)(A) of the Act defines critical habitat as (i) the specific areas within the geographical area occupied by the species, at the time it is listed, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protections; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination by the Secretary that such areas are essential for the conservation of the species. Section 4(b)(2) of the Act states that the Secretary must make the designation on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impacts of specifying any particular area as critical habitat.

We prepared an economic analysis of the proposed designation of critical habitat. In order to consider economic impacts, we prepared an analysis of the economic impacts of the proposed critical habitat designation. We hereby announce the availability of the draft economic analysis and seek public review and comment.

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 nine appropriate specialists regarding version 1.1 of the species status assessment (SSA) report, and four appropriate specialists regarding version 2.0 of the SSA report. We received responses from four specialists for each version (total of eight peer reviews), 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 species' biology, habitat, and response to threats.

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 or information from other government agencies, Native American Tribes, the scientific community, industry, or any other interested party concerning this proposed rule. We particularly seek comments concerning:

(1) The historical and current status and distribution of the Panama City crayfish, its biology and ecology, specific threats (or lack thereof) and regulations that may be addressing those threats and ongoing conservation measures for the species and its habitat.

(2) Information relevant to the factors that are the basis for making a listing determination for a species under section 4(a) of the Act, which are:

(a) The present or threatened destruction, modification, or curtailment of the species' 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 and threats to the species or its habitat.

(3) The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Act (16 U.S.C. 1531 et seq. ), including information to inform the following factors that the regulations identify as reasons why designation of critical habitat may be not prudent:

(a) The species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of such threat to the species;

(b) The present or threatened destruction, modification, or curtailment of a species' habitat or range is not a threat to the species, or threats to the species' habitat stem solely from causes that cannot be addressed through management actions resulting from consultations under section 7(a)(2) of the Act;

(c) Areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States; or

(d) No areas meet the definition of critical habitat.

(4) Specific information on:

(a) The amount and distribution of Panama City crayfish habitat;

(b) What areas, that are occupied at the time of listing and that contain the physical or biological features essential to the conservation of the species, should be included in the designation and why;

(c) Special management considerations or protection that may be needed in critical habitat areas we are proposing, including managing for the potential effects of climate change;

(d) What areas not occupied at the time of listing are essential for the conservation of the species and why;

(e) Information about conservation efforts that may affect proposed critical habitat areas; and

(f) Information about the proposed 100-meter (328-foot) buffer within secondary soils, and whether we should consider increasing or decreasing that buffer.

(5) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.

(6) Information on the projected and reasonably likely impacts of climate change on the Panama City crayfish and proposed critical habitat.

(7) Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation, and the benefits of including or excluding specific areas.

(8) Information on the extent to which the description of probable economic impacts in the draft economic analysis is a reasonable estimate of the likely economic impacts and the description of the environmental impacts in the draft environmental assessment is complete and accurate, especially in light of impacts from Hurricane Michael in October 2018.

(9) Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act.

(10) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.

(11) Information on regulations that are necessary and advisable to provide for the conservation of the Panama City crayfish and that the Service can consider in developing a 4(d) rule for the species. In particular, information concerning the extent to which we should include any of the section 9 prohibitions in the 4(d) rule or whether any other forms of take should be excepted from the prohibitions in the 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.

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.” Comments previously submitted need not be resubmitted, as they will be fully considered in preparation of the final rule.

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 the 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.

Because we will consider all comments and information we receive during the comment period, our final determinations may differ from this proposal. Based on the new information we receive (and any comments on that new information), we may conclude that the species is endangered instead of threatened, or we may conclude that the species does not warrant listing as either an endangered species or a threatened species. In addition, we may change the parameters of the prohibitions or the exceptions to those prohibitions if we conclude it is appropriate in light of comments and new information received. For example, we may expand the incidental-take prohibitions to include prohibiting additional activities if we conclude that those additional activities are not compatible with conservation of the species. Conversely, we may establish additional exceptions to the incidental-take prohibitions in the final rule if we conclude that the activities would facilitate or are compatible with the conservation and recovery of the species. For critical habitat, our final designation may not include all areas proposed, may include some additional areas, and may exclude some areas if we find the benefits of exclusion outweigh the benefits of inclusion.

We are holding a public informational meeting followed by a public hearing on the date and at the time listed in DATES . We are holding the public informational meeting and public hearing via the Zoom online video platform and via teleconference so that participants can attend remotely. For security purposes, registration is required. To listen and view the meeting and hearing via Zoom, listen to the meeting and hearing by telephone, or provide oral public comments at the public hearing by Zoom or telephone, you must register. For information on how to register, or if you encounter problems joining Zoom the day of the meeting, visit http://www.fws.gov/panamacity. Registrants will receive the Zoom link and the telephone number for the public informational meeting and public hearing. If applicable, interested members of the public not familiar with the Zoom platform should view the Zoom video tutorials ( https://support.zoom.us/hc/en-us/articles/206618765-Zoom-video-tutorials ) prior to the public informational meeting and public hearing.

We are holding the public informational meeting to present information about the January 3, 2018, proposed rule to list the Panama City crayfish as a threatened species (83 FR 330) and to provide interested parties an opportunity to ask questions about the proposed 4(d) rule and proposed designation of critical habitat. The public hearing will provide interested parties an opportunity to present verbal testimony (formal, oral comments) regarding the January 3, 2018, proposed rule to list the Panama City crayfish as a threatened species (83 FR 330), the proposed 4(d) rule, and the proposed designation of critical habitat. While the public informational meeting will be an opportunity for dialogue with the Service, the public hearing is not: It is a forum for accepting formal verbal testimony. In the event there is a large attendance, the time allotted for oral statements may be limited. Therefore, anyone wishing to make an oral statement at the public hearing for the record is encouraged to provide a prepared written copy of their statement to us through the Federal eRulemaking Portal, or U.S. mail (see ADDRESSES , above). There are no limits on the length of written comments submitted to us. Anyone wishing to make an oral statement at the public hearing must register before the hearing ( http://www.fws.gov/panamacity ). The use of a virtual public hearing is consistent with our regulations at 50 CFR 424.16(c)(3).

The Service is committed to providing access to the public informational meeting and public hearing for all participants. Closed captioning will be available during the public informational meeting and public hearing. Further, a full audio and video recording and transcript of the public hearing will be posted online at http://www.fws.gov/panamacity after the hearing. Participants will also have access to live audio during the public informational meeting and public hearing via their telephone or computer speakers. Persons with disabilities requiring reasonable accommodations to participate in the meeting and/or hearing should contact the person listed under FOR FURTHER INFORMATION CONTACT at least 5 business days prior to the date of the meeting and hearing to help ensure availability. An accessible version of the Service's public informational meeting presentation will also be posted online at http://www.fws.gov/panamacity prior to the meeting and hearing (see DATES , above). See http://www.fws.gov/panamacity for more information about reasonable accommodation.

All previous Federal actions are described in the proposal to list the Panama City crayfish as a threatened species under the Act published in the Federal Register on January 3, 2018 (83 FR 330).

A species status assessment (SSA) team prepared an SSA report for the Panama City crayfish. 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 version 1.1 of the SSA report to nine independent peer reviewers and received four responses. The Service also sent the SSA report to two academic partners for review, and we received review from both partners. The Service sent version 2.0 of the SSA report to four peer reviewers and received four responses.

It is our intent to discuss in this document only those topics directly relevant to the new scientific information procured and analyzed since the proposed listing rule's publication, in addition to discussing the proposed section 4(d) rule and designation of critical habitat for the Panama City crayfish. For more information on the Panama City crayfish generally, refer to the proposed listing rule published in the Federal Register on January 3, 2018 (83 FR 330). A thorough review of the taxonomy, life history, and ecology of the Panama City crayfish ( Procambarus econfinae ) is presented in the revised SSA report, version 2.0 (Service 2019).

The Panama City crayfish is a small, semi-terrestrial crayfish that grows to about 2 inches (in) (50.8 millimeters (mm)) in length (minus claws), and is found in south-central Bay County, Florida. The species' color pattern consists of a medium dark-brown background color, lighter brown mid-dorsal stripe, and darker brown dorsolateral stripes (FWC 2016, p. 1). The Panama City crayfish was first described by Hobbs in 1942 from Bay County, Panama City, Florida. Currently, the Panama City crayfish is classified in the family Cambaridae and is considered a valid taxon by the scientific community (Taylor et al. 1996, 2007; Integrated Taxonomic Information System 2017).

The life history of the Panama City crayfish specifically is not well known. Cambarid crayfish may live about 2.5 to 3 years (Hobbs 2001, p. 977), with a generation period of 2 years. For this family of crayfish, the majority breed more than once, with mating among mature yearlings frequent; however, many individuals do not become sexually active until late summer or fall. Females may produce between 30 and 160 eggs and have been found with eggs and/or young from March through September. Juveniles are most frequently found in the summer and have been observed through December, so young appear to be produced from at least March through December. Juveniles can be carried overland by moving water during rainy periods, which aids in dispersal (Keppner and Keppner 2002, p. 11).

Eight crayfish species occur within the range of the Panama City crayfish, although only the hatchet crayfish, Procambarus kilbyi, and the jackknife crayfish, Procambarus hubbelli, are found in the same habitat as the Panama City crayfish and may co-occur with it (FWC 2017). The Panama City crayfish is not known to hybridize with other species of crayfish.

Historically, the species inhabited natural and often temporary bodies of shallow fresh water within open pine flatwoods and wet prairie-marsh communities. However, most of these communities have been cleared for residential or commercial development or replaced with slash pine plantations. The Panama City crayfish currently inhabits the waters of grassy, gently sloped ditches and swales, slash pine plantations, utility rights-of-way, and a few remnant parcels protected under wetland and private easements (FWC 2016, p. 2).

The highest densities of Panama City crayfish have been recorded in areas with little to no shrub or tree cover (FWC 2016, p. 2). Suitable habitat is normally dominated by herbaceous vegetation. Lowest population densities have occurred in small, open sites where shrubs or trees were present, or in the furrows between bedding rows in some pine plantations (Keppner and Keppner 2005). When encountered in dense titi ( Cyrilla racemiflora and Cliftonia monophylla ) swamps, the species was associated with temporarily inundated areas open to the sun with some herbaceous vegetation. Such sites may be considered secondary or suboptimal habitat for the species. On sites where mixed habitat features are present ( e.g., partially wooded sites or sites with permanent, deep-water ponds), the Panama City crayfish appears to select favorable areas dominated by herbaceous vegetation, with shallow or fluctuating water levels (FWC 2016, p. 3; Keppner and Keppner 2005).

The Panama City crayfish relies on particular soil types for burrow construction and supporting the herbaceous vegetation; these soil types are categorized as core or secondary soils. Core soils provide the best substrate to support the species; secondary soils are less ideal but still used. The core and secondary soil types that support Panama City crayfish within the species' known range are described in more detail in the SSA report (Service 2019, pp. 23-24).

Panama City crayfish build burrows for shelter, which are normally in or adjacent to surface water when it is present on the hydric soils they inhabit (Hobbs 1981). They construct burrows that contact the water table as the surface water of their habitat recedes, and they occupy burrows when surface water is absent or during periods of extreme water temperatures. They emerge from the burrows when surface water is present again or water temperatures are favorable. It appears that they can survive significant periods of drought in their burrows when they can maintain contact with the water table. During these dry periods, the Panama City crayfish excavates and lives in unbranched burrows up to 3 feet long that extend down to the water table, thereby enabling the species to remain adequately hydrated and survive (FWC 2016, p. 3).

Little is known about the specific feeding habits of the Panama City crayfish. Observations on Panama City crayfish that were held in aquaria spanning 1.5 plus years (Keppner 2014, entire) indicate that they are detritivores and herbivores. Specimens were offered dead animal material, but they avoided it in favor of processing the substrate for particles of prepared fish food and the fresh aquatic vegetation that were provided as primary food sources. Herbaceous vegetation likely serves as a food source for the Panama City crayfish.

The Panama City crayfish historically ranged throughout south-central Bay County, Florida, within a 56-square-mile area (see figure, below). The historical range likely created one population connected by core and secondary soils. As urban growth came to Panama City, the range became fragmented and isolated patches. Today, the species has 12 localized populations that can be divided into two distinct groups: The western and eastern group. The western group includes eight populations, and the eastern group includes four populations. The 12 populations are described in more detail in the SSA report (Service 2019, pp. 37-52), and are referred to as 19th Street, Old Airport, 390 West, Talkington, Minnesota, Edwards, Transmitter West, College Point, Deer Point, High Point, Star, and Transmitter East.

We developed a conservation strategy for Panama City crayfish to identify critical conservation needs (Service 2017, entire). In this conservation strategy, we rely on the known persistence over time of small populations and published meta-analysis (Traill 2007, entire) to estimate that 2,200 acres of actively managed habitat permanently protected and managed within at least seven population units should ensure the Panama City crayfish remains viable for the foreseeable future. This acreage amount is based on a minimum viable population size (MVP) for Panama City crayfish of 5,137 individuals.

Applying the MVP of 5,137 individuals to an estimate of Panama City crayfish population density gives us an estimate of the minimum viable habitat area required to support highly resilient crayfish populations. Thus far, our estimated population sizes at three sites (19th Street, Transmitter West, Talkington) have ranged from 34 to 623 Panama City crayfish in overall habitat areas ranging from 3 to 232 acres (1.2 to 93.9 hectares). Population estimates ranged from 3 to 9 crayfish per acre, which would equate to 6,600 to 19,800 Panama City crayfish if applied across the currently occupied range of the species.

The Panama City crayfish needs multiple resilient populations spread across its range to avoid extinction, although how much redundancy among populations is often uncertain. We currently estimate that 2,200 acres (890 hectares) of permanently protected Panama City crayfish habitat would sustain the viability of multiple (up to 7) populations depending on habitat quality. We estimate that protecting at least four large core populations with between 200 and 800 acres (81 and 324 hectares) within each population, in addition to three smaller populations (less than 200 acres (81 hectares) in size), to be managed with fire or mowing every 2 to 3 years, along with a plan to restore existing conservation easements that have suitable soils for the crayfish will sustain the crayfish into the future (Service 2017, entire). While additional field studies should help to refine this estimate, we determined the conservation goal of 2,200 acres that are permanently protected (890 hectares) would support Panama City crayfish for the foreseeable future. However, at this time, agreements are not in place to ensure the necessary protections, and we do not have certainty about whether and where, or in what configuration, those protections may occur on the landscape.

On January 3, 2018, we proposed to list the Panama City crayfish as a threatened species (83 FR 330). We accepted comments on the proposal for 60 days, ending on March 5, 2018. Based on information we received during the public comment period, we revised the analysis in our SSA report (version 2.0, Service 2019, entire). See Appendix IV of the report for details regarding the changes made from version 1.1 to version 2.0 (Service 2019, p. 114). Notably, new genetic information was incorporated into the analysis resulting in the 231-north population being combined with the Star population because they were found to be not genetically distinct; that combined population is now referred to as the Star Avenue population (Duncan et al. 2017, entire). In addition, several of the names of the populations were modified to better reflect location information.

Based on comments received, the current condition analysis was revised to adjust population factors and add information on mark-recapture population estimates. Additionally, the habitat ranking analysis was revised based on information provided during peer review, resulting in revised current habitat conditions for several of the populations (Service 2019, pp. 61-62).

Subsequent to the proposed listing, Hurricane Michael made landfall in Panama City, Florida, on October 10, 2018. A quick assessment was conducted a few weeks post-storm by the Florida Fish and Wildlife Commission (FWC) (FWC 2018, entire), noting downed trees and difficulty for mowing maintenance activities in Panama City crayfish habitats. Power outages from the storm necessitated use of heavy equipment in powerline habitat areas, resulting in extensive rutting and soil compaction in Panama City crayfish habitat. Despite widespread impacts to many areas post-storm, preliminary mark-recapture survey efforts did not show any reduction in Panama City crayfish population size estimates compared to pre-storm estimates.

The future condition tables and subsequent interpretations were revised based on new analysis (Service 2019, pp. 79-93). In summary, the overall estimate of the Panama City crayfish's resiliency remains low across the majority of its geographic range, particularly in the urbanized western portion. As a result, Panama City crayfish may become extirpated from the vast majority of its range. Future development will likely result in low resiliency, redundancy, and representation across 70 percent of the species' range by 2030. However, as described below, if the remainder ( i.e., eastern portion) is protected from development and conservation efforts are focused in the less developed habitat areas, the species is predicted to sustain populations in the wild for the foreseeable future. The most notable revision to the SSA report is the inclusion of a new conservation scenario for our analysis of future conditions (Service 2019, pp. 93-98). This conservation scenario is based on the conservation strategy that includes permanent protection and management of approximately 2,200 acres (890 hectares) of habitat across seven populations (Service 2017, entire). The predicted outcomes of the conservation scenario are straightforward, with populations with higher resiliency continuing to maintain or have improved resiliency in the future as land management efforts improve. Although anticipated habitat protection and habitat management will not immediately change any of the overall current condition ranks, it should, when coupled with the population management measures agreed to by FWC and the Service, ensure that populations with high resiliency will remain so regardless of future development, which is the primary threat to the Panama City crayfish. Additionally, population management measures ( e.g., translocation) detailed in this scenario should improve the genetic health and population size of several managed populations. Finally, improved monitoring and applied research agreed to by the Service and FWC should also improve our knowledge of the status of each population to better adjust management actions as needed in the future.

Bay County staff and staff with the Florida Department of Transportation (FDOT) have taken the initiative to expedite conservation of the Panama City crayfish. These efforts, when merged with a longstanding partnership between the FWC and the Service, provide the potential for a significant change in the outlook on the future status of the Panama City crayfish. The prospect of a large acquisition of land to protect the species from its primary threat of habitat loss through development is being considered by those who have a stake in the conservation of the Panama City crayfish. Along with a variety of habitat management commitments to be implemented by, or with the oversight of, FWC, the Service, and local partners, this could provide a substantial and immediate benefit to a species that is experiencing rapid declines in its small remaining habitat areas.

We have carefully assessed this new scientific and commercial information in light of the past, present, and future threats to the Panama City crayfish. Our analysis of this information indicates that, at the species level, habitat development continues to be the primary factor affecting the Panama City crayfish now and into the future.

Based on our analysis of the species' current and future conditions, we conclude that the population and habitat factors used to determine the resiliency, representation, and redundancy for Panama City crayfish will continue to decline so that it is likely that the species will become in danger of extinction within the foreseeable future throughout its range. Therefore, on the basis of the best available scientific and commercial information, we affirm our proposed listing of the Panama City crayfish 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 this authority under the Act's section 4(d), we have developed a proposed rule that is designed to address the Panama City crayfish's specific threats and conservation needs. Although the statute does not require us to make a “necessary and advisable” finding with respect to the adoption of specific prohibitions under section 9, we find that this rule 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 Panama City crayfish. As described in the Summary of Biological Status and Threats section of the proposed listing rule (83 FR 330; January 3, 2018), we concluded that the Panama City crayfish is likely to become in danger of extinction within the foreseeable future primarily due to habitat loss and degradation, habitat fragmentation, and subpopulation isolation due to development.

The provisions of this proposed 4(d) rule would promote conservation of the Panama City crayfish by encouraging management of the landscape in ways that meet the conservation needs of the Panama City crayfish and are consistent with land management considerations. The provisions of this proposed rule are one of many tools that we would use to promote the conservation of the Panama City crayfish. This proposed 4(d) rule would apply only if and when we finalize the listing of the Panama City crayfish as a threatened species.

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

Multiple factors are affecting the status of the Panama City crayfish, with the primary threats resulting in habitat loss and degradation, habitat fragmentation, and population isolation. A range of activities have the potential to affect these species, including farming and grazing practices, improper silvicultural practices, creation of roadside ditches, rights-of-way, development of residential or commercial properties, and collection for bait (Service 2019, pp. 65-66). These threats, which are expected to be exacerbated by continued development along with the effects of climate change, were central to our assessment of the future viability of the Panama City crayfish.

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 regulations 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, slow their rate of decline, and decrease synergistic, negative effects from other stressors. Therefore, we propose to prohibit intentional and incidental take of the Panama City crayfish, except for those actions and activities specifically excepted by the 4(d) rule.

We may issue permits to carry out otherwise prohibited activities, including those described above, involving threatened wildlife under certain circumstances. Regulations governing permits for threatened wildlife 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 the propagation or survival of the species, 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 proposed 4(d) rule would also provide for the conservation of the species by allowing exceptions to actions and activities that, while they may have some minimal level of disturbance or take to the Panama City crayfish, are not expected to rise to the level that would negatively impact the species' conservation and recovery efforts. The proposed exceptions to these prohibitions include conservation efforts by the Service or State wildlife agencies, and certain development practices, select land management activities, and some utility actions (described below) that are expected to have negligible impacts to the Panama City crayfish and its habitat.

The first exception is for conservation and restoration efforts for listed species by the Service or State wildlife agencies, including, but not limited to, collection of broodstock, tissue collection for genetic analysis, captive propagation, and subsequent stocking into unoccupied areas within the historical range of the species, and follow-up monitoring. The proposed 4(d) rule would allow take of the Panama City crayfish without a permit by any employee or agent of the Service or a State conservation agency designated by the agency for such purposes and when acting in the course of their official duties if such action is necessary to aid a sick, injured, or orphaned specimen; to dispose of a dead specimen; or to salvage a dead specimen which may be useful for scientific study.

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

The second exception is for certain development activities that will have negligible or beneficial effects on the Panama City crayfish and its habitat, including: Maintenance of existing structures and construction or reconstruction activities that occur within the existing footprint of previously developed areas; new structures that occur within 100 feet of existing structures on an individual private landowner's property and with a new footprint less than 1,000 square feet (ft 2 ), such as a pool or shed associated with an existing house; culvert installations for individual landowners not associated with larger developments; installation of platforms or boardwalks for recreational purposes on conservation lands that allow sunlight of sufficient levels to maintain herbaceous groundcover; and paths used for nonmotorized activities as long as the project footprint, including construction impacts, impacts no more than 5 percent of the acreage in core or secondary soils within properties under a conservation easement.

The third exception is for select land management activities related to silvicultural (forestry) activities and invasive species control that help maintain habitat for Panama City crayfish and agricultural maintenance activities, that have de minimus effects. Silviculture activities within secondary soils including tree thinning, harvest (including clearcutting), site preparation, planting, and replanting following state best management practices (BMPs) (FDACS 2008, entire) are excepted as the species has persisted in lands under timber management where native groundcover species recolonize naturally. Prescribed burning, wildfire control efforts, herbicide applications targeting exotic plants or shrub species are excepted when following all other state and federal BMPs or permits associated with these actions. Finally, agricultural maintenance activities in pasture and rangelands (including cattle operations) that were established prior to publication of the proposed listing rule (January 3, 2018) that do not have indirect impacts to adjacent Panama City crayfish habitat will be excepted.

The fourth exception is for some utility actions that are expected to have minimal impacts to the Panama City crayfish or its habitat. These include ditch mowing and maintenance activities outside of critical habitat units, or ditch mowing and maintenance within critical habitat units after coordination with the local FWS office. Culvert replacements or maintenance that do not adversely affect, but improve or restore, the natural hydrology are excepted. In coordination with the local FWS office, the following are excepted: Maintenance of rights-of-way, powerline and pole placements and replacements, and directional boring by utility owners.

We reiterate that these actions and activities may have some minimal level of take of the Panama City crayfish, but any such take is expected to be rare and insignificant, and is not expected to negatively impact the species' conservation and recovery efforts. We expect the restoration activities to have a net beneficial effect on the species. Across the species' range, habitat has been degraded and fragmented by development and land use changes. The habitat restoration activities in the proposed 4(d) rule are intended to improve habitat conditions for the species in the long term.

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 Panama City crayfish. However, interagency cooperation may be further streamlined through planned programmatic consultations for the species between Federal agencies and the Service, where appropriate. 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).

Critical habitat is defined in section 3 of the Act as:

(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features.

(a) Essential to the conservation of the species, and

(b) Which may require special management considerations or protection; and

(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

Our regulations at 50 CFR 424.02 define the geographical area occupied by the species as an area that may generally be delineated around species' occurrences, as determined by the Secretary ( i.e., range). Such areas may include those areas used throughout all or part of the species' life cycle, even if not used on a regular basis ( e.g., migratory corridors, seasonal habitats, and habitats used periodically, but not solely by vagrant individuals).

Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.

Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Designation also does not allow the government or public to access private lands, nor does designation require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the Federal agency would be required to consult with the Service under section 7(a)(2) of the Act. However, even if the Service were to conclude that the proposed activity would result in destruction or adverse modification of the critical habitat, the Federal action agency and the landowner are not required to abandon the proposed activity, or to restore or recover the species; instead, they must implement “reasonable and prudent alternatives” to avoid destruction or adverse modification of critical habitat.

Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features that occur in specific occupied areas, we focus on the specific features that are essential to support the life-history needs of the species, including, but not limited to, water characteristics, soil type, geological features, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity.

Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. When designating critical habitat, the Secretary will first evaluate areas occupied by the species. The Secretary will only consider unoccupied areas to be essential where a critical habitat designation limited to geographical areas occupied by the species would be inadequate to ensure the conservation of the species. In addition, for an unoccupied area to be considered essential, the Secretary must determine that there is a reasonable certainty both that the area will contribute to the conservation of the species and that the area contains one or more of those physical or biological features essential to the conservation of the species.

Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information from the SSA report and information developed during the listing process for the species. Additional information sources may include any generalized conservation strategy, criteria, or outline that may have been developed for the species; the recovery plan for the species; articles in peer-reviewed journals; conservation plans developed by States and counties; scientific status surveys and studies; biological assessments; other unpublished materials; or experts' opinions or personal knowledge.

Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, and where the species may be present, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act; (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species; and (3) the prohibitions found in section 9 of the Act. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.

Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12) require that, to the maximum extent prudent and determinable, the Secretary shall designate critical habitat at the time the species is determined to be an endangered or threatened species. Our regulations (50 CFR 424.12(a)(1)) state that the Secretary may, but is not required to, determine that a designation would not be prudent in the following circumstances:

(i) The species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of such threat to the species;

(ii) The present or threatened destruction, modification, or curtailment of a species' habitat or range is not a threat to the species, or threats to the species' habitat stem solely from causes that cannot be addressed through management actions resulting from consultations under section 7(a)(2) of the Act;

(iii) Areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States;

(iv) No areas meet the definition of critical habitat; or

(v) The Secretary otherwise determines that designation of critical habitat would not be prudent based on the best scientific data available.

As discussed in the January 3, 2018, proposed listing rule (83 FR 330), there is currently no imminent threat of take attributed to collection or vandalism identified under Factor B for this species, and identification and mapping of critical habitat is not expected to initiate any such threat. In our SSA and proposed listing determination for the Panama City crayfish, we determined that the present or threatened destruction, modification, or curtailment of habitat or range is a threat to the Panama City crayfish and that those threats in some way can be addressed by section 7(a)(2) consultation measures. The species occurs wholly in the jurisdiction of the United States, and we are able to identify areas that meet the definition of critical habitat. Therefore, because none of the circumstances enumerated in our regulations at 50 CFR 424.12(a)(1) apply and because there are no other circumstances the Secretary has identified for which this designation of critical habitat would be not prudent, we have determined that the designation of critical habitat is prudent for the Panama City crayfish.

Having determined that designation is prudent, under section 4(a)(3) of the Act we must find whether critical habitat for the Panama City crayfish is determinable. Our regulations at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following situations exist:

(i) Data sufficient to perform required analyses are lacking, or

(ii) The biological needs of the species are not sufficiently well known to identify any area that meets the definition of “critical habitat.”

When critical habitat is not determinable, the Act allows the Service an additional year to publish a critical habitat designation (16 U.S.C. 1533(b)(6)(C)(ii)).

We reviewed the available information pertaining to the biological needs of the species and habitat characteristics where this species is located. This and other information represent the best scientific data available and led us to conclude that the designation of critical habitat is determinable for the Panama City crayfish.

In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12(b), in determining which areas we will designate as critical habitat from within the geographical area occupied by the species at the time of listing, we consider the physical or biological features that are essential to the conservation of the species and that may require special management considerations or protection. The regulations at 50 CFR 424.02 define “physical or biological features essential to the conservation of the species” as the features that occur in specific areas and that are essential to support the life-history needs of the species, including, but not limited to, water characteristics, soil type, geological features, sites, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity. For example, physical features essential to the conservation of the species might include gravel of a particular size required for spawning, alkaline soil for seed germination, protective cover for migration, or susceptibility to flooding or fire that maintains necessary early-successional habitat characteristics. Biological features might include prey species, forage grasses, specific kinds or ages of trees for roosting or nesting, symbiotic fungi, or a particular level of nonnative species consistent with conservation needs of the listed species. The features may also be combinations of habitat characteristics and may encompass the relationship between characteristics or the necessary amount of a characteristic essential to support the life history of the species.

In considering whether features are essential to the conservation of the species, we may consider an appropriate quality, quantity, and spatial and temporal arrangement of habitat characteristics in the context of the life-history needs, condition, and status of the species. These characteristics include, but are not limited to, space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, or rearing (or development) of offspring; and habitats that are protected from disturbance. These characteristics are described below for the Panama City crayfish:

(1) Space for individual and population growth and for normal behavior: The Panama City crayfish naturally inhabits shallow, ephemeral, freshwater wetlands that are associated with early successional wet prairie-marsh and wet pine flatwoods and their associated communities. These locations historically supported a native herbaceous plant community dominated by native wetland grasses and sedges with an accompanying overstory of no to low-density pines and were naturally maintained by periodic wildfire.

(2) Food, water, air, light, minerals, or other nutritional or physiological requirements: Native herbaceous vegetation is important to the Panama City crayfish for food, detritus formation, and cover. Absence of vegetation increases exposure of this small crayfish to predation and reduced availability of food. Although Panama City crayfish are facultative air breathers, moisture is required to facilitate the respiratory process. Burrowing to groundwater or access to surface water are both important habitat features needed to prevent desiccation of individuals and populations. The Panama City crayfish cannot burrow much deeper than 3 feet below the surface and prefer surface waters less than 1 foot deep (E.Keppner 2003, pers. comm.).

(3) Cover or shelter: The Panama City crayfish relies mostly on herbaceous vegetation that grows on core and secondary soils, which allow them to burrow for shelter and to rear young. The ability to burrow to the water table during times of drought is essential to the persistence of the species. Core soils have depth to water tables that meet the depth threshold that is important for long-term Panama City crayfish population persistence. These core soils provide the sediment structure needed for burrow construction to the water table and also support the herbaceous vegetation upon which the species relies for food and cover. Young crayfish are often captured clinging to vegetation in emergent, yet shallow, water bodies.

Secondary soil types are drier, and it is believed the species cannot persist when only secondary soils are available with below-average water tables. They are mentioned here because they may support Panama City crayfish after recent rainfalls and longer periods of time after above-average rainfall that influences water table depths, and they may provide connectivity between two patches of core soils. Ninety-six percent of known occurrences of Panama City crayfish occur within either core soils or within secondary soils that are within 100 meters (328 feet) of core soils. These secondary soils also provide the sediment structure needed for burrow construction to the water table and also support the herbaceous vegetation upon which the species relies for food and cover except during times of drought.

(4) Sites for breeding, reproduction, or rearing (or development) of offspring: Shelters, such as burrows, are an important resource for crayfish as they provide for protection from predation and space for mating and for rearing hatchlings. Burrows also help to maintain hydration and preferred body temperatures. Surface waters provide shelter for juveniles to grow prior to being large enough to burrow. These surface water locations also provide for breeding and feeding grounds. Surface water must be sufficiently deep, but usually less than 1 foot (0.3 meters) deep, to support the species but shallow enough to sustain herbaceous vegetation. Waters greater than 1 foot (0.3 meters) deep sustain other crayfish species that may outcompete the Panama City crayfish.

(5) Habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of a species: The Panama City crayfish's historical range is estimated to cover a 56-square-mile area (Service 2019, entire). Hardwood swamps fall within the core soil category but are not actually suitable for the Panama City crayfish (except the transition edge habitat). Land acreages within the Panama City crayfish's range total 35,658 acres, with a composition of the following soils: (1) Core with 14,880 acres (6,022 hectares; 42 percent of the land area); (2) secondary with 12,379 acres (5,010 hectares; 35 percent of the land area), and (3) unsuitable soils with 8,399 acres (3,399 hectares; 23 percent of the land area). We estimate that approximately 9,180 acres (3,715 hectares) of core and 5,647 acres (2,285 hectares) of secondary soils remain undeveloped (using 2016 data) and are therefore suitable for the Panama City crayfish. We estimate that 3,606 acres (1,459 hectares) of the core (3,242 acres (1,312 hectares, or 22 percent)) and secondary (364 acres (147 hectares, or 3 percent)) soils are hardwood swamp, which are not directly used by the Panama City crayfish but are included within acreage totals because they provide transition habitat.

We derive the specific physical or biological features essential to the conservation of the Panama City crayfish from studies of this species' habitat, ecology, and life history as described above. Additional information can be found in the proposed listing rule published in the Federal Register on January 3, 2018 (83 FR 330), and the Panama City Crayfish SSA report (version 2.0; Service 2019, entire). We have determined that the following physical or biological features are essential to the conservation of the Panama City crayfish:

(1) Undeveloped lands, including cropland, utilities rights-of-way, timberlands, or grazing lands, that support open wet pine flatwoods and wet prairie habitats that contain the following:

(a) Appropriate herbaceous groundcover vegetation;

(b) Permanent or temporary pools of shallow (usually less than 1 foot) freshwater locations; and

(c) Gently-sloped ground level swales with a 3:1 or shallower slope ratio along ecotonal or transitional areas.

(2) Soil types within undeveloped lands that provide sediment structure needed for burrow construction and that support some native herbaceous vegetation and the likelihood of native seed bank that with management will provide vegetation needed for additional food and cover, and where the ground water is always within 3 feet of the ground surface and surface waters occur on occasion. These soil types include:

(a) Core soils for Panama City crayfish, including (note: prefix numbers refer to map units in the Soil Survey for Bay County, Florida (USDA 1984, entire)): (22) Pamlico-Dorovan Complex, (29) Rutlege Sand, (32) Plummer Sand, (33) Pelham Sand, (39) Pantego Sandy Loam, and (51) Rutledge- Pamlico Complex;

(b) Secondary soils within 100 meters (328 feet) of core soils: (1) Albany Sand, (12) Leefield Sand, (13) Leon Fine Sand, (31) Osier Fine Sand, and (36) Alapaha Loamy Sand; and

(c) Soils that support native herbaceous vegetation such as, but not limited to, wiregrass ( Aristida beyrichiana ), redroot ( Lachnanthes caroliniana ), beakrushes ( Rhynchospora spp.), pitcher plants ( Sarracenia spp.), sundews ( Drosera spp.), butterworts ( Pinguicula spp.), and lilies ( Hymenocallis spp.).

(3) Undeveloped lands that contain surface and groundwater of sufficient quality to support all life stages of the Panama City crayfish and the herbaceous vegetation on which they rely. This includes surface waters with:

(a) Oxygen levels that range between 2 and 9 milligrams per liter;

(b) pH levels between 4.1 and 9.2; and

(c) Temperatures between 42 and 94 degrees Fahrenheit (°F) (5 and 34.4 degrees Celsius (°C)), although optimum temperatures are thought to be in the range of 68 to 79 °F (20 to 26 °C) (Butler et al. 2003).

When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features which are essential to the conservation of the species and which may require special management considerations or protection. The features essential to the conservation of this species may require special management considerations or protection to reduce the following threats: Habitat loss and destruction due to residential and commercial development, as well as habitat loss due to changes in the natural disturbance and hydrological regimes that maintain the wet prairie and flatwoods that Panama City crayfish originally inhabited. Historically, the Panama City crayfish inhabited natural and often temporary bodies of shallow fresh water within open pine flatwoods and prairie-marsh communities (as described in the SSA report (version 2.0; Service 2019, p. 56)). However, most of these communities have been cleared for residential or commercial development or replaced with slash pine (Pinus elliottii) plantations. Thus, the Panama City crayfish currently is known to inhabit the waters of grassy, gently-sloped ditches and swales; furrows within slash pine plantations; and utility rights-of-way.

Special management considerations or protections are required within critical habitat areas to address these habitat loss and destruction threats. The occupied units we are proposing to designate as critical habitat for Panama City crayfish will require some level of management to address the current and future threats to the physical or biological features. Management activities that could ameliorate these threats include (but are not limited to): (1) Protection of lands from development through purchase, easement, or other conservation agreements that will prevent permanent conversion of Panama City crayfish habitat to other land uses; and (2) restoration and management of habitat to maintain the appropriate vegetative and hydrological characteristics for the Panama City crayfish.

These management activities will protect the physical or biological features for the species by protecting currently suitable habitat from being converted to other land uses and by promoting the appropriate vegetative and hydrological characteristics that the Panama City crayfish needs for survival. Additionally, management of habitat to protect the physical or biological features on occupied critical habitat will help achieve recovery of the Panama City crayfish.

As required by section 4(b)(2) of the Act, we use the best scientific data available to designate critical habitat. In accordance with the Act and our implementing regulations at 50 CFR 424.12(b), when designating critical habitat, the Secretary will first evaluate areas occupied by the species. The Secretary will only consider unoccupied areas to be essential where a critical habitat designation limited to geographical areas occupied would be inadequate to ensure the conservation of the species. We are not currently proposing to designate any areas outside the geographical area occupied by the species because we have not identified any unoccupied areas that meet the definition of critical habitat and because occupied areas are sufficient to ensure the conservation of the species.

We reviewed available information that pertains to the habitat requirements of this species using information that was cited within the SSA report (Service 2019, entire) and information presented in the Service's conservation strategy for Panama City crayfish critical conservation needs (Service 2017, entire); sources of information on habitat requirements include existing State management plans, endangered species reports, studies conducted at occupied sites and published in peer-reviewed articles, agency reports, and data collected during monitoring efforts (Service 2019, entire). Based on known occurrences and habitat requirements, critical habitat units were mapped in ArcMap (ESRI, Inc.) using the U.S. Department of Agriculture, Natural Resources Conservation Service, Soil Survey Geographic Database (USDA 2019, unpaginated). ArcGIS software was used to calculate the acreage of core and secondary soils within the historical range of the Panama City crayfish prior to anthropogenic habitat disturbances. Core soil types (as described in Species Description in the proposed listing rule (83 FR 330, January 3, 2018, pp. 332-333) and in Physical or Biological Features Essential to the Conservation of the Species, above) were buffered by 100 meters. We used 100 meters as our buffer because we found that 96 percent of known occurrences of Panama City crayfish occur within 100 meters of core soils and this buffer encompasses the secondary soil types (as described in Species Description in the proposed listing rule (83 FR 330, January 3, 2018, pp. 332-333) and in Physical or Biological Features Essential to the Conservation of the Species, above). In geographic information systems (GIS) mapping, the buffered soils were spatially processed by clipping to the population buffer of one-quarter mile, and developed areas were excluded based on 2016 Florida Department of Transportation aerial imagery (FDOT 2016, unpaginated).

In summary, for areas within the geographic area occupied by the species at the time of listing and with sufficient availability of land, we delineate critical habitat unit boundaries using the following criteria:

(1) Suitable habitat surrounding each of 10 known populations of Panama City crayfish, delineated by polygons using one-quarter mile (0.4 kilometer (km)) circles around sample points with known species occurrences, based on the movement patterns of small crayfishes ( Note: Habitat surrounding two populations was not included for critical habitat designation, as explained below);

(2) Core and secondary soils within 100 meters (328 feet) of core soils that contain one or more of the physical or biological features to support life-history functions essential for conservation of the Panama City crayfish.

Hardwood swamps found within core soils are considered unsuitable for the crayfish, and this habitat type was removed to the maximum extent possible.

The total acreage calculated for critical habitat based upon the above criteria amounted to 7,177 acres (2,904 hectares). Accordingly, we propose to designate as critical habitat those areas that contain the physical and biological features essential to the Panama City crayfish and that are currently occupied by the species.

For the purposes of critical habitat designation, we determined a unit to be occupied if it contains recent ( i.e., observed since 2015) observations of Panama City crayfish. The proposed critical habitat designation does not include all lands known to have been occupied by the species historically; instead, it focuses on currently occupied lands that have retained the necessary physical or biological features that will allow for the maintenance and expansion of existing populations. The following locations ( i.e., populations as defined in the SSA) meet the definition of areas occupied by the species at the time of listing and that present sufficient availability of lands to support a population: 19th Street, Talkington, Minnesota, Transmitter West, Deer Point, High Point, Star, and Transmitter East. College Point and Old Airport populations were not consistently occupied, nor was there sufficient suitable habitat within the one-quarter-mile (0.4-km) polygon to support recovery, and these populations, therefore, are not included in the proposed designation. We also do not include Edwards, a population representing an original collection site from 1942, nor 390 West given the fragmentation of that population by the industrial park resulted in too little remaining habitat to support a viable population over time. While both areas are still occupied by Panama City crayfish, Edwards is surrounded by industrial buildings and bordered by U.S. Route 231 on its west edge, and 390 West will soon be bisected by a four-lane highway as it is currently under construction. Potential habitat for recovery in either of these locations is limited and potentially fragmented. Long-term management will be challenging given proximity to major roadways and industrial development. As mentioned above, we exclude developed areas within the proposed designation to the extent possible in the mapping exercise and in the text of the rule, as explained below. Designating critical habitat in these eight occupied areas of the Panama City crayfish would sufficiently conserve the species, leading to its recovery.

We are not proposing to designate any areas outside the geographical area occupied by the species because we have not identified any unoccupied areas that are essential to the conservation of the species. In addition, based on our conservation strategy, the protection of the eight occupied units (as further described below) are sufficient for the conservation of the species.

When determining proposed critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack physical or biological features necessary for the Panama City crayfish. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this proposed rule have been excluded by text in the proposed rule and are not proposed for designation as critical habitat. Therefore, if the critical habitat is finalized as proposed, a Federal action involving these lands would not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical or biological features in the adjacent critical habitat.

We propose to designate as critical habitat lands that we have determined are occupied at the time of listing ( i.e., currently occupied) and that contain one or more of the physical or biological features that are essential to support life-history processes of the species.

Units are proposed for designation based on one or more of the physical or biological features being present to support Panama City crayfish's life-history processes. All units contain all of the identified physical or biological features and support multiple life-history processes.

The critical habitat designation is defined by the map or maps, as modified by any accompanying regulatory text, presented at the end of this document under Proposed Regulation Promulgation. We include more detailed information on the boundaries of the critical habitat designation in the preamble of this document. We will make the shapefiles on which each map is based available to the public on http://www.regulations.gov at Docket No. FWS-R4-ES-2020-0137, on our internet site http://ecos.fws.gov, and at the Florida Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

We are proposing eight units as critical habitat for the Panama City crayfish. The critical habitat units we describe below constitute our assessment based on the best available science of areas that meet the definition of critical habitat for the Panama City crayfish. In total, they comprise 7,177 acres (2,904 hectares) of land, entirely within Bay County, Florida. The table below summarizes the approximate area and ownership of the units, which are described in detail below.

The eight units we propose as critical habitat are broken into two groups, based on the western (Units 1 through 4) and eastern (Units 5 through 8) groups described in the SSA report (Service 2019, pp. 37-52). These two groups are distinguished by east-west genetic differentiation based on proximity to other populations and amounts of fragmentation within a population polygon. Below we describe each unit, and reasons why they meet the definition of critical habitat for the Panama City crayfish.

The western group is comprised of four units supporting geographically isolated populations scattered throughout the species' range primarily in the cities of Panama City and Lynn Haven in Bay County, Florida. The Service proposes designation of 390.8 acres (158.2 hectares) in total for the western group. These populations have been isolated by residential and commercial development, which resulted in habitat loss and fragmentation. These populations are currently supported by an average of 83.4 acres (33.8 hectares) of habitat (range 24.3-248.4 acres (9.8-100.5 hectares)). However, the Transmitter West population is by far the largest at 248.4 acres (100.5 hectares), and this population may have historically been a critical link both genetically and geographically between the western and eastern representative groups. The remaining three populations are supported by an average of 50.3 acres (20.4 hectares) (range 24.3-65.0 acres (9.8-26.3 hectares)). Limited habitat area needed to support each population and lack of habitat connectivity to other populations in this group are the greatest management challenges.

The 19th Street population is the southwestern-most population located off 19th Street in Panama City, Florida. It is located on both sides of an active railroad track with habitat totaling 24.3 acres (9.8 hectares). Land ownership is mostly private, but some is in public ownership with 3.7 acres (1.5 hectares) owned by Bay County. Only secondary soils remain undeveloped, but the elevated railroad track has artificially provided a water barrier, often keeping the site ponded when all others have dried up. Maintenance ( i.e., mowing and woody vegetation removal) for the railroad has kept the adjacent right-of-way covered in dense, herbaceous vegetation that is ideal for the Panama City crayfish. Adjacent unmanaged slash pine stands, where burrows have been documented, and a mowed grass field also provide habitat.

Panama City crayfish occurrence was documented in 2001, 2012-2014, and 2016-2018. All of the essential physical or biological features are found within the unit. The essential features ( e.g., appropriate herbaceous groundcover vegetation and permanent or temporary pools of shallow fresh water) for this unit may require special management, particularly mowing, to ensure maintenance or improvement of the existing habitat.

The Talkington population is located off of Jenks Avenue in Panama City, Florida, with habitat totaling 53.1 acres (21.5 hectares). Land ownership is entirely private, although 10 acres (4 hectares) is under easement for conservation. The Talkington Family Nature Preserve forms the centerpiece of this population, with land ownership held by the Bay County Conservancy (BCC), and the associated conservation easement held by Florida Department of Environmental Protection (FDEP). The preserve is primarily pine flatwoods with a cluster of pond pine trees in the center portion. The Service and FWC have a management agreement in place with BCC that allows for mowing to manage the habitat on a 2- to 3-year interval, to mimic the natural fire regime and maintain ideal conditions for the Panama City crayfish. The remaining 43.1 acres (17.4 hectares) of core and secondary soils in the vicinity provide opportunity for additional land protections and management, although much of this area would require restoration of vegetation.

Panama City crayfish occurrence was documented in 2000, 2001, 2003, 2006, 2012, 2013, and 2016-2018. All essential physical and biological features are found within the unit. The essential features, especially appropriate herbaceous groundcover vegetation and permanent or temporary pools of shallow fresh water, for this unit may require special management; establishment of sloped swales and removal of dense shrub thickets would improve conditions for the Panama City crayfish in this unit.

The Minnesota population is located off Minnesota Avenue in Lynn Haven, Florida, with undeveloped habitat totaling 65.0 acres (26.3 hectares). Land ownership is a mix of private and public, and some area is under easement for conservation. This site is largely hardwood-cypress swamp with some possibilities for improving the habitat along 6 acres (2.4 hectares) near and adjacent to the swamp ecotone. The City of Lynn Haven owns 37.2 acres (15.1 hectares), which is under a conservation easement held by FDEP.

The Service and FWC have a management agreement with the City of Lynn Haven that allows the agencies to manage the property when funding is available. Minimal actions have occurred to date to remove some of the pine canopy layer. Other core and secondary soils surrounding the easement consist of dense slash pine plantations. The property has deep rutting from off-road vehicles, horses, and heavy equipment, which may affect the hydrology of the habitat.

Panama City crayfish occurrence was documented in 2015 and 2016. All essential physical and biological features are found within the unit. Achieving the right mosaic of water and grasses requires special management.

The Transmitter West population is located off Transmitter Road in Lynn Haven and Panama City, Florida, with habitat totaling 248.4 acres (100.5 hectares). Land ownership is a mix of private and public, with approximately 40 percent under easement for conservation. The FDEP holds multiple conservation easements for private landowners with a total 100.5 acres (40.7 hectares) of pine flatwoods. The easements are managed as required by permit with either mowing or burning, and are in good condition for the Panama City crayfish. The remaining habitats, including the 4.7 acres (1.9 hectares) in public ownership owned by the City of Lynn Haven and Bay County, are in mixed condition and in need of regular management ( e.g., prescribed fire or mowing).

Panama City crayfish occurrence was documented in 2004, 2013, and 2016. All essential physical and biological features are found within the unit, with grasses maintained by fire in the past and mowing more recently. Different depths of water bodies occur that provide a mosaic of water features with herbaceous grasses to make this a good area for the Panama City crayfish. Management is required to reduce encroaching shrubs and to remove tree debris caused by Hurricane Michael in October 2018.

The eastern group is comprised of four units supporting populations scattered throughout the species' range primarily in the unincorporated portions of Bay County, Florida. The Service proposes designation of 6,785.9 acres (2,746.2 hectares) in total for the eastern group. These populations are currently supported by an average of 1,696.5 acres (686.5 hectares) of habitat (range 38.4-3,571.5 acres (15.5-1,445.3 hectares)). However, the Star and Transmitter East populations are the largest at 2,761.4 and 3,571.5 acres (1,117.5 and 1,445.3 hectares), respectively. These two populations represent the largest connected blocks of core and secondary soils with appropriate vegetation. Although the vegetation and hydrology have been altered from native wet prairie and pine flatwoods habitats by silvicultural and agricultural uses, the geographic extent of these two populations forms the basis for the species' long-term resilience.

The Deer Point population occurs on a peninsula located near Bay County Road 2321 in Lynn Haven and Panama City, Florida, and is supported by 414.6 acres (167.8 hectares) of habitat. The land is bordered by Willams Bayou on the northeast, Mill Bayou on the southwest, and North Bay to the north. Land ownership is almost entirely private, although some areas under easement for conservation. Only 0.9 acres (0.4 hectares) is in public ownership by Bay County.

Four privately owned easements lie within or are adjacent to areas included in this unit. These easements protect 95.0 acres (38.4 hectares) of core and secondary soil habitat, although some of the secondary soil habitats do not meet the criteria for inclusion within critical habitat due to distance from core soils. The Trust for Public Lands holds 90.0 acres (36.4 hectares) under easement, but that easement is to be transferred to the City of Lynn Haven in the near future. FDEP holds three easements totaling 35.0 acres (14.2 hectares) that are still owned by a private landowner (D&H Properties, LLC). The Service and FWC hold a management agreement with D&H Properties, LLC, and have mowed and burned 24.0 acres (9.7 hectares) of this 35.0-acre (14.2-hectare) property that are held in easements by FDEP. The remaining habitat is on lands that are heavily timbered and unmanaged, resulting in dense overgrowth of titi and slash pine, and hydrology may be affected by these activities as well as borrow pits and dirt roads that traverse the unit. Only the portions of these easements that meet the criteria are included as critical habitat. All need regular management, especially the lands with dense vegetation, for the crayfish to thrive.

Panama City crayfish occurrence was documented on easement lands in 2012 and 2014-2018. All of the essential physical or biological features are found within the unit. Herbaceous groundcover is spotty, and shallow pools of water are small and unreliable, often caused by vehicle tracks, and too deep for Panama City crayfish. Management is required to remove Hurricane Michael tree debris. Considerations on whether there are ways to improve the hydrology are also warranted.

The High Point population is the northern-most population and is located off Bay County Road 2311 in Bay County, Florida. The population is supported by habitat totaling 38.4 acres (15.5 hectares), and land ownership is almost entirely private, with some acreage under easement for conservation. Only 0.5 acres (0.2 hectares) is in public ownership by Bay County. The 11-acre (4.5 hectare) Marjorie's Magical Marsh-Symone's Sanctimonious Swamp conservation easement owned by BCC contains most of the known Panama City crayfish population.

Panama City crayfish occupy 6.0 (2.4 hectares) of the 11-acre (4.5 hectare) easement, which is in the process of being restored by the Service and FWC under a management agreement with BCC. These six acres are being restored to primarily herbaceous vegetation from a more recent dense mixture of titi shrub thicket in the under- and mid-story and slash pines in the overstory, which has lacked fire management. The remaining core and secondary soil habitat surrounding the easement was historically managed for timber but currently contains dense titi with an intermittent slash pine overstory.

Panama City crayfish occurrence was documented in 2010, 2012-2014, and 2015-2017. All essential physical and biological features are found within the unit. This population, albeit small, has herbaceous ground cover vegetation, pools of shallow water, and appropriate slope ratios, but the unit will require management to maintain the groundcover and keep shrubs from encroaching.

A portion of this unit is located north of the intersection of Bay County Road 2321 and U.S. Highway 231 in Bay County, Florida. Land ownership is a mix of private and public. There are no conservation easements in place, but one 1.4-acre (0.6-hectare) parcel is owned by the State of Florida and used by the Florida Highway Patrol. Although the appropriate core and secondary soil habitat exists, the lands that run parallel to the county road are mostly in dense slash pine plantations for timber production with overgrown groundcover. The plantations east of the county road have been harvested recently. This management is sub-optimal for the Panama City crayfish because of the dense overstory canopy, lack of herbaceous ground cover, infrequent (<3 year) fire management, and bedding that may additionally affect the hydrology of the unit.

The remainder of this habitat unit is adjacent and south of U.S. Highway 231. It forms the farthest east-northeast boundary of the species' geographic range in Bay County, Florida. The population is bordered on the west by U.S. Highway 231, the north by Bayou George Creek, and the south by an unnamed tributary of Mill Bayou. These lands are mostly under timber management since the mid-1980s and in various stages of management from recent harvest to dense slash pines with dense titi shrub layers. The current timber management is sub-optimal for Panama City crayfish because of the dense overstory canopy, lack of herbaceous ground cover, infrequent (<3 year) fire management, and bedding that may additionally affect the hydrology of the unit. Land ownership is predominantly private, with only 9.7 acres (3.9 hectares) in public ownership by Bay County. Gulf Power Company manages rights-of-way along 86 acres (34.8 hectares). The Service and FWC have a management agreement with Gulf Power Company incorporating best management practices, primarily regular mowing, that have stimulated herbaceous vegetation as the primary groundcover. Currently a two-lane road, Star Avenue, bisects this population.

The population in the unit is supported by 2,761.4 acres (1,117.5 hectares). Panama City crayfish occurrence was documented in 2001, 2003-2004, 2006, 2012-2013, and 2016. All essential physical and biological features are found within the unit. Intermittent herbaceous groundcover vegetation and temporary pools of shallow water with hardwood swamp ecotone areas do occur, but much management is required to maintain and improve these biological features needed for increased or more connected populations. Much tree debris remains throughout the unit as a result of Hurricane Michael's 2018 impact to the landscape. It is assumed that some debris will be removed from timber company land and on other small tracts of land, but it is unknown at this time what impacts are likely to occur to Panama City crayfish populations as lands are cleared at large-scale levels.

The Transmitter East population forms the farthest south-southeast boundary of the species' geographic range in Bay County, Florida. The population is bordered on the west by Transmitter Road, the south by U.S. Highway 98 and State Highway 22, the east by Callaway Creek, and the north by an unnamed tributary of Mill Bayou. The population in this unit is supported by 3,571.5 acres (1,445.3 hectares) of habitat, which has been primarily under timber management since the mid-1980s and in various stages of management from recent harvest to dense slash pines with dense titi shrub layers.

The current management regime is sub-optimal for Panama City crayfish because of the dense overstory canopy, lack of herbaceous ground cover, infrequent (<3 year) fire management, and bedding that may additionally affect the hydrology of the unit. Land ownership is predominantly private, with only 82.5 acres (33.4 hectares) in public ownership by the City of Springfield, Bay County, and the State of Florida. Gulf Power Company manages rights-of-way along approximately 114 acres (46.1 hectares) of land that is populated with the Panama City crayfish. The Service and FWC have a management agreement with Gulf Power incorporating best management practices, primarily regular mowing, that have stimulated herbaceous vegetation as the primary groundcover.

Two conservation easements, 11.3 and 7.3 acres (4.6 and 3.0 hectares) in size, are held by FDEP for two separate landowners. Currently, a two-lane road, Star Avenue, bisects this population. Tram Road also bisects the lower third of the area. It is currently a dirt road and there are plans for converting it to a four-lane asphalt road.

Panama City crayfish occurrence was confirmed in 2001, 2002, and 2006, and extensive efforts documented the species in 2003-2004, 2012-2013, and 2016. All essential physical and biological features are found within the unit. Much tree debris, which will require management, remains throughout as a result of Hurricane Michael's 2018 impact to the landscape. It is assumed that some debris will be removed from timber company land and on other small tracts of land, but it is unknown at this time what impacts are likely to occur on the Panama City crayfish populations as lands are cleared at large-scale levels.

Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat.

We published a final rule revising the definition of destruction or adverse modification on August 27, 2019 (84 FR 44976). Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species.

If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions on State, Tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq. ) or a permit from the Service under section 10 of the Act) or that involve some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency). Federal actions not affecting listed species or critical habitat and actions on State, Tribal, local, or private lands that are not federally funded, authorized, or carried out by a Federal agency do not require section 7 consultation. Compliance with the requirements of section 7(a)(2) is documented through our issuance of:

(1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or

(2) A biological opinion for Federal actions that may affect, and are likely to adversely affect, listed species or critical habitat.

When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define “reasonable and prudent alternatives” (at 50 CFR 402.02) as alternative actions identified during consultation that:

(1) Can be implemented in a manner consistent with the intended purpose of the action,

(2) Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction,

(3) Are economically and technologically feasible, and

(4) Would, in the Service Director's opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat.

Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.

Regulations at 50 CFR 402.16 set forth requirements for Federal agencies to reinitiate formal consultation on previously reviewed actions. These requirements apply when the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law) and, subsequent to the previous consultation, we have listed a new species or designated critical habitat that may be affected by the Federal action, the action has been modified in a manner that affects the species or critical habitat in a way not considered in the previous consultation, new information reveals effects of the action may affect the species or critical habitat in a way not previously considered, or incidental take is exceeded. In such situations, Federal agencies sometimes may need to request reinitiation of consultation with us, but the regulations also specify some exceptions to the requirement to reinitiate consultation on specific land management plans after subsequently listing a new species or designating new critical habitat. See the regulations for a description of those exceptions.

The key factor related to the destruction or adverse modification determination is whether implementation of the proposed Federal action directly or indirectly alters the designated critical habitat in a way that appreciably diminishes the value of the critical habitat as a whole for the conservation of the listed species. As discussed above, the role of critical habitat is to support physical or biological features essential to the conservation of a listed species and provide for the conservation of the species.

Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may violate section 7(a)(2) of the Act by destroying or adversely modifying such habitat, or that may be affected by such designation.

Activities that the Services may, during a consultation under section 7(a)(2) of the Act, find are likely to destroy or adversely modify critical habitat include, but are not limited to:

(1) Actions that would significantly alter hydrological and soil characteristics. Such activities could include, but are not limited to, those that result in wetland fill or draining or, conversely, provide additional waters to the wetland. Activities drying the wetland (via fill or draining) can result in changes in depth to water tables that are less than the depth threshold that is important for long-term Panama City crayfish population persistence. These activities can also alter soils from those that provide the sediment structure needed to allow for burrow construction down to the water table and also support the herbaceous vegetation upon which the species relies for food and cover. Activities providing additional water can allow other crayfish species that persist in deeper waters to outcompete the Panama City crayfish.

(2) Actions that would significantly alter water quality parameters including oxygen content, temperature, and chemical composition. Such activities could include, but are not limited to, release of chemicals, excess nutrients, pesticides, and biological or other pollutants into the surface water or connected groundwater at a point source or by dispersed release (non-point source). These activities could alter water conditions to levels that are beyond the tolerances of the crayfish and result in direct or cumulative adverse effects to these individuals and their life cycles.

(3) Actions that would significantly and permanently alter vegetative characteristics. Such activities could include, but are not limited to, residential and commercial construction; road construction; and draining, filling or otherwise destroying or altering wetlands. These activities may lead to changes in hydrology and soil characteristics that prevent the appropriate vegetation from growing. These activities can result in an absence or reduced levels of herbaceous vegetation that is important to the Panama City crayfish for food, detritus formation, and cover.

Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) provides that the Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense (DoD), or designated for its use, that are subject to an integrated natural resources management plan (INRMP) prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation. There are no DoD lands with a completed INRMP within the proposed critical habitat designation.

Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making the determination to exclude a particular area, the plain language of the statute, as well as the legislative history, make clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor.

We describe below the process that we undertook for taking into consideration each category of impacts and our analyses of the relevant impacts.

Section 4(b)(2) of the Act and its implementing regulations require that we consider the economic impact that may result from a designation of critical habitat. To assess the probable economic impacts of a designation, we must first evaluate specific land uses or activities and projects that may occur in the area of the critical habitat. We then must evaluate the impacts that a specific critical habitat designation may have on restricting or modifying specific land uses or activities for the benefit of the species and its habitat within the areas proposed. We then identify which conservation efforts may be the result of the species being listed under the Act versus those attributed solely to the designation of critical habitat for this particular species. The probable economic impact of a proposed critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.”

The “without critical habitat” scenario represents the baseline for the analysis, which includes the existing regulatory and socio-economic burden imposed on landowners, managers, or other resource users potentially affected by the designation of critical habitat ( e.g., under the Federal listing as well as other Federal, State, and local regulations). The baseline, therefore, represents the costs of all efforts attributable to the listing of the species under the Act ( i.e., conservation of the species and its habitat incurred regardless of whether critical habitat is designated). The “with critical habitat” scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species. The incremental conservation efforts and associated impacts would not be expected without the designation of critical habitat for the species. In other words, the incremental costs are those attributable solely to the designation of critical habitat, above and beyond the baseline costs. These are the costs we use when evaluating the benefits of inclusion and exclusion of particular areas from the final designation of critical habitat should we choose to conduct a discretionary 4(b)(2) exclusion analysis.

For this particular designation, we developed an incremental effects memorandum (IEM) considering the probable incremental economic impacts that may result from this proposed designation of critical habitat. The information contained in our IEM was then used to develop a screening analysis of the probable effects of the designation of critical habitat for the Panama City crayfish (IEC 2018). We began by conducting a screening analysis of the proposed designation of critical habitat in order to focus our analysis on the key factors that are likely to result in incremental economic impacts. The purpose of the screening analysis is to filter out particular geographic areas of critical habitat that are already subject to such protections and are, therefore, unlikely to incur incremental economic impacts. In particular, the screening analysis considers baseline costs ( i.e., absent critical habitat designation) and includes probable economic impacts where land and water use may be subject to conservation plans, land management plans, best management practices, or regulations that protect the habitat area as a result of the Federal listing status of the species. Ultimately, the screening analysis allows us to focus our analysis on evaluating the specific areas or sectors that may incur probable incremental economic impacts as a result of the designation. If there are any unoccupied units in the proposed critical habitat designation, the screening analysis assesses whether any additional management or conservation efforts may incur incremental economic impacts. This screening analysis combined with the information contained in our IEM are what we consider our draft economic analysis (DEA) of the proposed critical habitat designation for the Panama City crayfish; our DEA is summarized in the narrative below.

Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to assess the costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Consistent with the E.O. regulatory analysis requirements, our effects analysis under the Act may take into consideration impacts to both directly and indirectly affected entities, where practicable and reasonable. If sufficient data are available, we assess to the extent practicable the probable impacts to both directly and indirectly affected entities. As part of our screening analysis, we considered the types of economic activities that are likely to occur within the areas likely affected by the critical habitat designation. In our evaluation of the probable incremental economic impacts that may result from the proposed designation of critical habitat for the Panama City crayfish, first we identified, in the IEM dated July 13, 2018, probable incremental economic impacts associated with the following categories of activities: Agriculture, forest management (silviculture, timber), development, recreation, restoration and conservation management activities, transportation, and utilities. We considered each industry or category individually. Additionally, we considered whether their activities have any Federal involvement. Critical habitat designation generally will not affect activities that do not have any Federal involvement; under the Act, designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies. If we finalize our proposal to list the species, in areas where the Panama City crayfish is present, Federal agencies would be required to consult with the Service under section 7 of the Act on activities they fund, permit, or implement that may affect the species. If we finalize this proposed critical habitat designation, consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process.

In our IEM, we attempted to clarify the distinction between the effects that would result from the species being listed and those attributable to the critical habitat designation ( i.e., difference between the jeopardy and adverse modification standards) for the Panama City crayfish's critical habitat. Because the proposed critical habitat for the Panama City crayfish coincides with currently occupied areas by the species, it has been our experience that it is more difficult to discern which conservation efforts are attributable to the species being listed and those which will result solely from the designation of critical habitat. However, the following specific circumstances in this case help to inform our evaluation: (1) The essential physical or biological features identified for critical habitat are the same features essential for the life requisites of the species, and (2) any actions that would result in sufficient harm or harassment to constitute jeopardy to the Panama City crayfish would also likely adversely affect the essential physical or biological features of critical habitat. The IEM outlines our rationale concerning this limited distinction between baseline conservation efforts and incremental impacts of the designation of critical habitat for this species. This evaluation of the incremental effects has been used as the basis to evaluate the probable incremental economic impacts of this proposed designation of critical habitat.

The proposed critical habitat designation for the Panama City crayfish includes eight units, each of which contains one geographically and/or genetically distinct population of the Panama City crayfish. All of these units are in Bay County, Florida, and none occur on Federal lands. For the purposes of critical habitat designation, we determined a unit to be occupied if it contains recent ( i.e., observed since 2015) observations of Panama City crayfish. All units are occupied because they contain populations of Panama City crayfish at the time of proposed listing, and each unit is considered essential to the conservation of the species. In total, we are proposing 7,177 acres (2,904 hectares) for designation as critical habitat for the Panama City crayfish. In occupied areas, any actions that may affect the species or its habitat would also affect critical habitat, and it is unlikely that any additional conservation efforts would be recommended to address the adverse modification standard over and above those recommended as necessary to avoid jeopardizing the continued existence of the Panama City crayfish. Incremental costs of the proposed critical habitat designation for the Panama City crayfish are likely to be limited to additional administrative costs to consider adverse modification in consultations in all units. The incremental administrative burden resulting from the designation of critical habitat for the Panama City crayfish is not anticipated to reach an annual effect of $100 million (which is the economic threshold for a “significant regulatory action” (see section 3(f)(1) of Executive Order 12866)) based on the anticipated annual number of consultations and associated consultation costs, which are not expected to exceed $60,000 in any year. The designation is unlikely to trigger additional requirements under State or local regulations and is not expected to have perceptional effects.

We are soliciting data and comments from the public on the DEA discussed above, as well as all aspects of this proposed rule and our required determinations. During the development of a final designation, we will consider the information presented in the DEA and any additional information on economic impacts we receive during the public comment period to determine whether any specific areas should be excluded from the final critical habitat designation under authority of section 4(b)(2) of the Act and our implementing regulations at 50 CFR 424.19. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of this species.

Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or areas that pose potential national-security concerns ( e.g., a DoD installation that is in the process of revising its INRMP for a newly listed species or a species previously not covered). If a particular area is not covered under section 4(a)(3)(B)(i), national-security or homeland-security concerns are not a factor in the process of determining what areas meet the definition of “critical habitat.” Nevertheless, when designating critical habitat under section 4(b)(2), the Service must consider impacts on national security, including homeland security, on lands or areas not covered by section 4(a)(3)(B)(i). Accordingly, we will always consider for exclusion from the designation areas for which DoD, Department of Homeland Security (DHS), or another Federal agency has requested exclusion based on an assertion of national-security or homeland-security concerns.

We cannot, however, automatically exclude requested areas. When DoD, DHS, or another Federal agency requests exclusion from critical habitat on the basis of national-security or homeland-security impacts, it must provide a reasonably specific justification of an incremental impact on national security that would result from the designation of that specific area as critical habitat. That justification could include demonstration of probable impacts, such as impacts to ongoing border-security patrols and surveillance activities, or a delay in training or facility construction, as a result of compliance with section 7(a)(2) of the Act. If the agency requesting the exclusion does not provide us with a reasonably specific justification, we will contact the agency to recommend that it provide a specific justification or clarification of its concerns relative to the probable incremental impact that could result from the designation. If the agency provides a reasonably specific justification, we will defer to the expert judgment of DoD, DHS, or another Federal agency as to: (1) Whether activities on its lands or waters, or its activities on other lands or waters, have national-security or homeland-security implications; (2) the importance of those implications; and (3) the degree to which the cited implications would be adversely affected in the absence of an exclusion. In that circumstance, in conducting a discretionary section 4(b)(2) exclusion analysis, we will give great weight to national-security and homeland-security concerns in analyzing the benefits of exclusion.

In preparing this proposal, we have determined that the lands within the proposed designation of critical habitat for Panama City crayfish are not owned, managed, or used by the DoD or DHS, and, therefore, we anticipate no impact on national security or homeland security. However, during the development of a final designation, we will consider any additional information received through the public comment period on the impacts of the proposed designation on national security or homeland security to determine whether any specific areas should be excluded from the final critical habitat designation under authority of section 4(b)(2) and our implementing regulations at 50 CFR 424.19.

Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security discussed above. We consider a number of factors, including whether there are permitted conservation plans covering the species in the area such as HCPs, safe harbor agreements (SHAs), or candidate conservation agreements with assurances (CCAAs), or whether there are non-permitted conservation agreements and partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at the existence of Tribal conservation plans and partnerships and consider the government-to-government relationship of the United States with Tribal entities. We also consider any social impacts that might occur because of the designation.

In preparing this proposal, we have determined that there are currently no HCPs or other management plans for the Panama City crayfish, and the proposed designation does not include any Tribal lands or trust resources. We anticipate no impact on Tribal lands, partnerships, or HCPs from this proposed critical habitat designation. Additionally, as described above, we are not considering excluding any particular areas from critical habitat on the basis of impacts to national security or economic impacts. However, during the development of a final designation, we will consider any additional information we receive through the public comment period regarding other relevant impacts of the proposed designation and will determine whether any specific areas should be excluded from the final critical habitat designation under authority of section 4(b)(2) and our implementing regulations at 50 CFR 424.19.

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:

(1) Be logically organized;

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

(3) Use clear language rather than jargon;

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

(5) 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.

Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. OIRA has determined that this rule is not significant.

Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq. ), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA; 5 U.S.C. 801 et seq. ), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities ( i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the RFA to require Federal agencies to provide a certification statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities.

According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.

Under the RFA, as amended, and as understood in light of recent court decisions, Federal agencies are required to evaluate the potential incremental impacts of rulemaking on those entities directly regulated by the rulemaking itself; in other words, the RFA does not require agencies to evaluate the potential impacts to indirectly regulated entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried out by the agency is not likely to destroy or adversely modify critical habitat. Therefore, under section 7, only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Consequently, it is our position that only Federal action agencies would be directly regulated if we adopt the proposed critical habitat designation. There is no requirement under the RFA to evaluate the potential impacts to entities not directly regulated. Moreover, Federal agencies are not small entities. Therefore, because no small entities would be directly regulated by this rulemaking, the Service certifies that, if made final as proposed, the proposed critical habitat designation will not have a significant economic impact on a substantial number of small entities.

In summary, we have considered whether the proposed designation would result in a significant economic impact on a substantial number of small entities. For the above reasons and based on currently available information, we certify that, if made final, the proposed critical habitat designation would not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required.

Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. In our economic analysis, we did not find that the designation of this proposed critical habitat would significantly affect energy supplies, distribution, or use because these were not identified as land use sectors within the critical habitat areas. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ), we make the following finding:

(1) This proposed rule would not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”

The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.

(2) We do not believe that this rule would significantly or uniquely affect small governments. Small governments will be affected only to the extent that any programs having Federal funds, permits, or other authorized activities must ensure that their actions will not adversely affect the critical habitat. Therefore, a Small Government Agency Plan is not required.

In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for the Panama City crayfish in a takings implications assessment. The Act does not authorize the Service to regulate private actions on private lands or confiscate private property as a result of critical habitat designation. Designation of critical habitat does not affect land ownership, or establish any closures, or restrictions on use of or access to the designated areas. Furthermore, the designation of critical habitat does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. However, Federal agencies are prohibited from carrying out, funding, or authorizing actions that would destroy or adversely modify critical habitat. A takings implications assessment has been completed for the proposed designation of critical habitat for the Panama City crayfish, and it concludes that, if adopted, this designation of critical habitat does not pose significant takings implications for lands within or affected by the designation.

In accordance with E.O. 13132 (Federalism), this proposed rule does not have significant Federalism effects. A federalism summary impact statement is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of this proposed critical habitat designation with, appropriate State resource agencies. From a federalism perspective, the designation of critical habitat directly affects only the responsibilities of Federal agencies. The Act imposes no other duties with respect to critical habitat, either for States and local governments, or for anyone else. As a result, the proposed rule does not have substantial direct effects either on the States, or on the relationship between the national government and the States, or on the distribution of powers and responsibilities among the various levels of government. The proposed designation may have some benefit to these governments because the areas that contain the features essential to the conservation of the species are more clearly defined, and the physical or biological features of the habitat necessary for the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist State and local governments in long-range planning because they no longer have to wait for case-by-case section 7 consultations to occur.

Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) of the Act would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.

In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. We have proposed designating critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the species, this proposed rule identifies the elements of physical or biological features essential to the conservation of the species. The proposed areas of critical habitat are presented on maps, and the proposed rule provides several options for the interested public to obtain more detailed location information, if desired.

This rule does not contain information collection requirements, and a submission to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) is not required. We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number.

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 regulations adopted pursuant to section 4(a) of the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This position was upheld by the U.S. Court of Appeals for the Ninth Circuit ( Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

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

A complete list of references cited in this rulemaking is available on the internet at http://www.regulations.gov and upon request from the Panama City Field Office (see FOR FURTHER INFORMATION CONTACT ).

The primary authors of this proposed rulemaking are the staff members of the Fish and Wildlife Service's Species Assessment Team and the Florida 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:

On January 25, 2021, we received a petition from Defenders of Wildlife to list the shortfin mako shark ( Isurus oxyrinchus ) as a threatened or endangered species under the ESA and to designate critical habitat concurrent with the listing. The petition asserts that I. oxyrinchus is threatened by 4 of the 5 ESA section 4(a)(1) factors: (1) Present and threatened modification of its habitat; (2) overutilization for commercial and recreational purposes; (3) inadequacy of existing regulatory mechanisms; and (4) other natural or manmade factors. The petition is available online (see ADDRESSES ).

Section 4(b)(3)(A) of the ESA of 1973, as amended (16 U.S.C. 1531 et seq. ), requires, to the maximum extent practicable, that within 90 days of receipt of a petition to list a species as threatened or endangered, the Secretary of Commerce make a finding on whether that petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted, and to promptly publish such finding in the Federal Register (16 U.S.C. 1533(b)(3)(A)). When it is found that substantial scientific or commercial information in a petition indicates the petitioned action may be warranted (a “positive 90-day finding”), we are required to promptly commence a review of the status of the species concerned during which we will conduct a comprehensive review of the best available scientific and commercial information. In such cases, we conclude the review with a finding as to whether, in fact, the petitioned action is warranted within 12 months of receipt of the petition. Because the finding at the 12-month stage is based on a more thorough review of the available information, as compared to the narrow scope of review at the 90-day stage, a “may be warranted” finding does not prejudge the outcome of the status review.

Under the ESA, a listing determination may address a species, which is defined to also include subspecies and, for any vertebrate species, any distinct population segment (DPS) that interbreeds when mature (16 U.S.C. 1532(16)). A joint NMFS-U.S. Fish and Wildlife Service (USFWS) (jointly, “the Services”) policy clarifies the agencies' interpretation of the phrase “distinct population segment” for the purposes of listing, delisting, and reclassifying a species under the ESA (61 FR 4722; February 7, 1996). A species, subspecies, or DPS is “endangered” if it is in danger of extinction throughout all or a significant portion of its range, and “threatened” if it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range (ESA sections 3(6) and 3(20), respectively, 16 U.S.C. 1532(6) and (20)). Pursuant to the ESA and our implementing regulations, we determine whether species are threatened or endangered based on any one or a combination of the following five section 4(a)(1) factors: (1) The present or threatened destruction, modification, or curtailment of habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) inadequacy of existing regulatory mechanisms to address identified threats; (5) or any other natural or manmade factors affecting the species' existence (16 U.S.C. 1533(a)(1), 50 CFR 424.11(c)).

ESA-implementing regulations issued jointly by NMFS and USFWS (50 CFR 424.14(h)(1)(i)) define “substantial scientific or commercial information” in the context of reviewing a petition to list, delist, or reclassify a species as credible scientific or commercial information in support of the petition's claims such that a reasonable person conducting an impartial scientific review would conclude that the action proposed in the petition may be warranted. Conclusions drawn in the petition without the support of credible scientific or commercial information will not be considered “substantial information.” In reaching the initial (90-day) finding on the petition, we will consider the information described in sections 50 CFR 424.14(c), (d), and (g) (if applicable).

Our determination as to whether the petition provides substantial scientific or commercial information indicating that the petitioned action may be warranted will depend in part on the degree to which the petition includes the following types of information: (1) Information on current population status and trends and estimates of current population sizes and distributions, both in captivity and the wild, if available; (2) identification of the factors under section 4(a)(1) of the ESA that may affect the species and where these factors are acting upon the species; (3) whether and to what extent any or all of the factors alone or in combination identified in section 4(a)(1) of the ESA may cause the species to be an endangered species or threatened species ( i.e., the species is currently in danger of extinction or is likely to become so within the foreseeable future), and, if so, how high in magnitude and how imminent the threats to the species and its habitat are; (4) information on adequacy of regulatory protections and effectiveness of conservation activities by States as well as other parties, that have been initiated or that are ongoing, that may protect the species or its habitat; and (5) a complete, balanced representation of the relevant facts, including information that may contradict claims in the petition. See 50 CFR 424.14(d).

If the petitioner provides supplemental information before the initial finding is made and states that it is part of the petition, the new information, along with the previously submitted information, is treated as a new petition that supersedes the original petition, and the statutory timeframes will begin when such supplemental information is received. See 50 CFR 424.14(g).

We may also consider information readily available at the time the determination is made. We are not required to consider any supporting materials cited by the petitioner if the petitioner does not provide electronic or hard copies, to the extent permitted by U.S. copyright law, or appropriate excerpts or quotations from those materials ( e.g., publications, maps, reports, letters from authorities). See 50 CFR 424.14(c)(6).

The “substantial scientific or commercial information” standard must be applied in light of any prior reviews or findings we have made on the listing status of the species that is the subject of the petition. Where we have already conducted a finding on, or review of, the listing status of that species (whether in response to a petition or on our own initiative), we will evaluate any petition received thereafter seeking to list, delist, or reclassify that species to determine whether a reasonable person conducting an impartial scientific review would conclude that the action proposed in the petition may be warranted despite the previous review or finding. Where the prior review resulted in a final agency action—such as a final listing determination, 90-day not-substantial finding, or 12-month not-warranted finding—a petition will generally not be considered to present substantial scientific and commercial information indicating that the petitioned action may be warranted unless the petition provides new information or analysis not previously considered. See 50 CFR 424.14(h)(1)(iii).

At the 90-day finding stage, we do not conduct additional research, and we do not solicit information from parties outside the agency to help us in evaluating the petition. We will accept the petitioners' sources and characterizations of the information presented if they appear to be based on accepted scientific principles, unless we have specific information in our files that indicates the petition's information is incorrect, unreliable, obsolete, or otherwise irrelevant to the requested action. Information that is susceptible to more than one interpretation or that is contradicted by other available information will not be dismissed at the 90-day finding stage, so long as it is reliable and a reasonable person conducting an impartial scientific review would conclude it supports the petitioners' assertions. In other words, conclusive information indicating the species may meet the ESA's requirements for listing is not required to make a positive 90-day finding. We will not conclude that a lack of specific information alone necessitates a negative 90-day finding if a reasonable person conducting an impartial scientific review would conclude that the unknown information itself suggests the species may be at risk of extinction presently or within the foreseeable future.

To make a 90-day finding on a petition to list a species, we first evaluate whether the information presented in the petition, in light of the information readily available in our files, indicates that the petitioned entity constitutes a “species” eligible for listing under the ESA. Next, if we conclude the petition presents substantial scientific or commercial information suggesting that the petitioned entity may constitute a “species,” we evaluate whether the information indicates that the species may face an extinction risk such that listing, delisting, or reclassification may be warranted; this may be indicated in information expressly discussing the species' status and trends, or in information describing impacts and threats to the species. We evaluate whether the petition presents any information on specific demographic factors pertinent to evaluating extinction risk for the species ( e.g., population abundance and trends, productivity, spatial structure, age structure, sex ratio, diversity, current and historical range, habitat integrity or fragmentation), and the potential contribution of identified demographic risks to extinction risk for the species. We then evaluate whether the petition presents information suggesting potential links between these demographic risks and the causative impacts and threats identified in section 4(a)(1) of the ESA.

Information presented on impacts or threats should be specific to the species and should reasonably suggest that one or more of these factors may be operative threats that act or have acted on the species to the point that it may warrant protection under the ESA. Broad statements about generalized threats to the species, or identification of factors that could negatively impact a species, do not constitute substantial information indicating that listing may be warranted. We look for information indicating that not only is the particular species exposed to a factor, but that the species may be responding in a negative fashion; then we assess the potential significance of that negative response.

Many petitions identify risk classifications made by nongovernmental organizations, such as the International Union on the Conservation of Nature (IUCN), the American Fisheries Society, or NatureServe, as evidence of extinction risk for a species. Risk classifications by other organizations or made under other Federal or state statutes may be informative, but such classification alone may not provide the rationale for a positive 90-day finding under the ESA. For example, as explained by NatureServe, their assessments of a species' conservation status do “not constitute a recommendation by NatureServe for listing under the U.S. Endangered Species Act” because NatureServe assessments “have different criteria, evidence requirements, purposes and taxonomic coverage than government lists of endangered and threatened species, and therefore these two types of lists should not be expected to coincide” ( https://explorer.natureserve.org/AboutTheData/DataTypes/ConservationStatusCategories ). Additionally, species classifications under IUCN and the ESA are not equivalent; data standards, criteria used to evaluate species, and treatment of uncertainty are also not necessarily the same. Thus, when a petition cites such classifications, we will evaluate the source of information that the classification is based upon in light of the standards on extinction risk and impacts or threats discussed above.

The shortfin mako is a large pelagic shark that occurs across all temperate and tropical ocean waters (Rigby et al. 2019; Santos et al. 2020). The species is highly migratory and is known to travel long distances in open ocean, continental shelf, shelf edge, and shelf slope habitats (Rogers et al. 2015). The species also displays fidelity to small geographic areas on or near continental shelves and coastal areas of high productivity, although this resident behavior is rarely observed in the open ocean (Rogers et al. 2015; Francis et al. 2019). Shortfin mako shark vertical distribution in the water column is affected by water temperature, dissolved oxygen (DO) concentration, and time of day. The preferred water temperature of the species is thought to range between 17 °C and 22 °C (Casey and Kohler 1992; Nasby-Lucas et al. 2019; Santos et al. 2020), though the species also regularly occupies waters between 22 °C and 31 °C (Vaudo et al. 2017). As the species has one of the highest measured metabolic rates of any shark, it typically inhabits waters with DO concentrations of at least 3 milliliters per liter and avoids areas with low levels of DO (Sepulveda et al. 2007; Abascal et al. 2011). Individuals spend most of their time in the upper part of the water column but dive to depths of several hundred meters, allowing them to forage for mesopelagic fishes and squid, though dives may have other functions including navigation (Francis et al. 2019). Tagging studies have found that the species typically spends more time in deeper, colder water during the daytime and at night moves to shallower, warmer waters (Sepulveda et al. 2004; Loefer et al. 2005; Stevens et al. 2010; Abascal et al. 2011; Nasby-Lucas et al. 2019). Although thermal barriers have consistently been shown to limit shortfin mako movement between different regions (Casey and Kohler 1992; Vaudo et al. 2017; Corrigan et al. 2018; Santos et al. 2020), genetic studies indicate a globally panmictic population with some genetic structuring between ocean basins (Schrey and Heist 2003; Corrigan et al. 2018).

Shortfin makos are estimated to live to at least 29 years, and males and females reach maturity at approximately 7-8 years and 18-19 years, respectively (Bishop et al. 2006; Natanson et al. 2006). Natural mortality levels for the species are low (Bishop et al. 2006). Females have a 3-year reproductive cycle (Mollet et al. 2000), and estimates of gestation time vary from 9 months to 25 months (Mollet et al. 2000; Duffy and Francis 2001; Joung and Hsu 2005; Semba et al. 2011). Litter size typically ranges from 4 to 25 pups (Mollet et al. 2000; Joung and Hsu 2005). As the species is late maturing and slow growing with moderately high longevity and low annual fecundity, its productivity is very low (Bishop et al. 2006).

While there are no data available on the global abundance of shortfin mako sharks, stock assessments and standardized catch-per-unit-effort (CPUE) data indicate that the species is declining globally (CITES 2019; Rigby et al. 2019). Overall, the species has experienced an estimated median population reduction of 46.6 percent, with the highest probability of 50-79 percent reduction over three generation lengths (72-75 years) (Rigby et al. 2019). All regional populations are in decline with the exception of the South Pacific, which shows some evidence of population increases (Rigby et al. 2019).

The steepest population declines are indicated in the North and South Atlantic (Rigby et al. 2019). The most recent stock assessment by the International Commission for the Conservation of Atlantic Tunas (ICCAT) indicates a 90 percent probability that the North Atlantic stock is in an overfished state and is experiencing overfishing (ICCAT 2019b). Trend analysis of modeled biomass in the North Atlantic estimates a median decline of 60 percent between 1950 and 2017 (Rigby et al. 2019). Although ICCAT reports a high degree of uncertainty in the status of the South Atlantic stock (ICCAT 2019b), standardized catch rates in South Atlantic longlines indicate steep declines of 99 percent in the average CPUE of 1979-1997 and 1998-2007 (Rigby et al. 2019 citing Barreto et al. 2016). Further, long-term combined trends for shortfin mako and porbeagle ( Lamna nasus ) in the Mediterranean Sea indicate a 99.99 percent decrease in abundance and biomass since the early 19th century (Ferretti et al. 2008).

Declines in the Indian and North Pacific Oceans are also evident, but not as steep as those indicated in the Atlantic (Rigby et al. 2019). Although the International Scientific Committee for Tuna and Tuna-like Species in the North Pacific Ocean (ISC) Shark Working Group (2018) found that the North Pacific stock was likely not in an overfished condition and was likely not experiencing overfishing between 1975 and 2016 (42 years), the IUCN Red List assessment of the trend over three generations (72 years) indicated a median decline of 36.5 percent (Rigby et al. 2019). Additionally, data from the Western and Central Pacific Fisheries Commission (WCPFC) indicate that longline catch rates of mako sharks (shortfin and longfin mako ( Isurus paucus ) combined) in the North Pacific declined significantly by an average of 7 percent (90 percent confidence interval: 3 to 11 percent) annually between 1995 and 2010 (Clarke et al. 2013). A preliminary stock assessment in the Indian Ocean indicates that the stock is experiencing overfishing, but is not yet overfished (Brunel et al. 2018). The trend analysis for modeled biomass in the Indian Ocean indicates a median decline of 47.9 percent over three generation lengths (Rigby et al. 2019).

In the South Pacific, trend analysis of modeled biomass indicates a median increase of 35.2 percent over three generation lengths (Rigby et al. 2019). Longline catch rates reported to WCPFC did not indicate a significant trend in abundance of mako (shortfin and longfin combined) in the South Pacific between 1995 and 2010 (Clarke et al. 2013).

In sum, while data on abundance and trends are incomplete, the information presented in the petition indicates that the species is declining across its range, with the exception of the South Pacific.

The petition asserts that I. oxyrinchus is threatened by four of the five ESA section 4(a)(1) factors: Present and threatened modification of its habitat, overutilization for commercial and recreational purposes, inadequacy of existing regulatory mechanisms, and other natural or manmade factors, including climate change. Information in the petition and readily available in our files indicates that the primary threat facing the species is overutilization in fisheries worldwide, and we find that listing the shortfin mako as a threatened or endangered species under the ESA may be warranted based on this threat alone. As such, we focus our discussion below on the evidence of overutilization in commercial fisheries. However, we note that in the status review for this species, we will evaluate all ESA section 4(a)(1) factors to determine whether any one or a combination of these factors are causing declines in the species or are likely to substantially negatively affect the species within the foreseeable future to such a point that the shortfin mako is at risk of extinction or likely to become so in the foreseeable future.

According to information cited in the petition and readily available in our files, the greatest threat to the shortfin mako shark is historical and ongoing overfishing. Shortfin mako sharks are targeted in semi-industrial and artisanal fisheries in the Indian Ocean and as sportfish in recreational fisheries, though the majority of the catch is taken incidentally in commercial fisheries targeting tuna, billfish, and swordfish throughout the species' range (Camhi et al. 2008). According to the Food and Agriculture Organization of the United Nations (FAO) global capture production statistics, total reported catch for the shortfin mako in the period 2010-2016 totaled 91,989 metric tons (t) (CITES 2019). Landings in the Atlantic totaled 45,959 t (50 percent of global reported catch), in the Pacific totaled 31,838 t (34 percent of global reported catch), in the Indian Ocean totaled 14,043 t (15 percent of global reported catch), and in the Mediterranean totaled 152 t (less than 1 percent of global reported catch) (CITES 2019). Reported catch, however, is a substantial underestimate of actual catch. Campana (2016) estimates that in the Atlantic, only 25 percent of the total catch is reported to ICCAT. Reported catch also does not account for mortalities that result from fisheries interactions, including sharks that are discarded, finned, or that experience post-release mortality. In fact, levels of fishing mortality in the Northwest Atlantic estimated through fisheries-independent satellite telemetry data were found to be 10 times greater than previous estimates from fisheries-dependent data, and 5-18 times greater than those associated with maximum sustainable yield (Byrne et al. 2017). Therefore, impacts of commercial fishing fleets on the shortfin mako are likely much greater than reported catch numbers suggest.

Shortfin makos are most commonly caught as bycatch in longline fisheries, and are also caught in gillnets, purse seines, trammel nets, and trawls (CITES 2019). When bycaught, the species experiences mortality through at-vessel or hooking mortality, and post-release mortality. Rates of at-vessel mortality, or mortality resulting from interactions with fishing gear prior to being brought onboard, have been estimated at 26.2 percent for shortfin makos bycaught in Northwest Atlantic pelagic longlines, though this varies by target species and fishing vessel (Campana et al. 2016). The proportion of shortfin makos that experience at-vessel mortality was significantly higher than that of blue sharks, likely because shortfin makos are obligate ram ventilators ( i.e., they must be continuously swimming forwards to move water over the gills) with high oxygen requirements, and their ability to ram ventilate is compromised once hooked (Campana 2016; Campana et al. 2016). The rate of post-release mortality has been estimated at 31.3 percent for shortfin makos bycaught by Northwest Atlantic pelagic longlines (Campana et al. 2016). Combining at-vessel and post-release mortality, total bycatch mortality in the Canadian pelagic longline fishery is estimated at 49.3 percent (95 percent confidence interval: 23-73 percent), assuming that no live sharks are retained (Campana et al. 2016). Other available estimates of post-release mortality for the species include 47 percent in the Hawaiian deep-set commercial longline fishery and 31.6 percent in the Hawaiian shallow-set commercial longline fishery (Walsh et al. 2009). In sum, shortfin makos experience substantial mortality as a result of being incidentally caught in commercial fisheries.

Shortfin makos also experience mortality through opportunistic retention, and are more frequently retained than other pelagic sharks based on their highly valued meat and fins (CITES 2019). The species is preferred in the Hong Kong fin market, one of the largest fin trading markets in the world (Fields et al. 2018). Clarke et al. (2006a) estimate that the species makes up approximately 2.7 percent (95 percent probability interval: 2.3 to 3.1 percent) of the Hong Kong shark fin trade, the fourth highest proportion of auctioned fin weight after blue ( Prionace glauca, 17.3 percent), hammerhead ( Sphyrna zygaena or S. lewini, 4.4 percent) and silky ( Carcharhinus falciformis, 3.5 percent) sharks. A more recent study found shortfin makos to be the fifth most commonly traded species in Hong Kong based on random samples of fin trimmings from retail markets (Fields et al. 2018). The estimated number of shortfin makos utilized in the worldwide shark fin trade each year is between 300,000 and 1,000,000, totaling between 20,000 and 55,000 t in biomass (Clarke et al. 2006b). Beyond the fin trade, shortfin mako sharks are highly valued for their meat, which is utilized fresh, frozen, smoked, dried, and salted for human consumption (CITES 2019; Dent and Clarke 2015). Shortfin mako liver oil, teeth, jaws, and skin are also traded, though most of these products are of lower value and are not traded in significant quantities (CITES 2019).

The shortfin mako's low productivity and high susceptibility to capture give it one of the highest risks of overexploitation of sharks caught by Atlantic pelagic longline fleets (Cortés et al. 2015). Additionally, fisheries mortality primarily affects sub-adults (approximate ages of 3-15 years), meaning that as this exploited age-class matures, the reproductive population will shrink (Winker et al. 2020). For this reason, ICCAT (2019a) projects that even with zero total allowable catch in the North Atlantic, the stock would continue to decline until 2035, and would have only a 53 percent probability of being rebuilt and no longer subject to overfishing by 2045. Overall, the shortfin mako's recent population declines, low productivity, high vulnerability to overexploitation, and the long lag time between implementation of management measures ( e.g., reducing or eliminating allowable catch) and the start of population recovery lead us to conclude that listing the species as threatened or endangered may be warranted.

After reviewing the petition, the literature cited in the petition, and other information readily available in our files, we find that listing I. oxyrinchus as a threatened or endangered species may be warranted. Therefore, in accordance with section 4(b)(3)(A) of the ESA and NMFS' implementing regulations (50 CFR 424.14(h)(2)), we will commence a status review of this species. During the status review, we will determine whether I. oxyrinchus is in danger of extinction (endangered) or likely to become so (threatened) throughout all or a significant portion of its range. As required by section 4(b)(3)(B) of the ESA, within 12 months of the receipt of the petition (January 25, 2021), we will make a finding as to whether listing the shortfin mako shark as an endangered or threatened species is warranted. If listing is warranted, we will publish a proposed rule and solicit public comments before developing and publishing a final rule.

To ensure that the status review is based on the best available scientific and commercial data, we are soliciting comments and information from interested parties on the status of the shortfin mako shark. Specifically, we are soliciting information in the following areas:

(1) Historical and current abundance and population trends of I. oxyrinchus throughout its range;

(2) Historical and current distribution and population structure of I. oxyrinchus;

(3) Historical and current condition of habitat for I. oxyrinchus;

(3) Historical and current data on bycatch and retention of I. oxyrinchus in industrial, commercial, artisanal, and recreational fisheries worldwide;

(4) Data on trade of shortfin mako products, including fins, meat, jaws, skin, and liver oil; and

(5) The effects of other known or potential threats to I. oxyrinchus over the short-term or long-term; and

(5) Management, regulatory, or conservation programs for I. oxyrinchus, including mitigation measures related to any known or potential threats to the species throughout its range.

We request that all data and information be accompanied by supporting documentation such as maps, bibliographic references, or reprints of pertinent publications. Please send any comments in accordance with the instructions provided in the ADDRESSES section above. We will base our findings on a review of the best available scientific and commercial information available, including all information received during the public comment period.

A complete list of all references cited herein is available upon request (See FOR FURTHER INFORMATION CONTACT ).