Vol. 85 Friday, No. 95 May 15, 2020

Pages 29323–29590

OFFICE OF THE FEDERAL REGISTER

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The FEDERAL REGISTER (ISSN 0097–6326) is published daily, SUBSCRIPTIONS AND COPIES Monday through Friday, except official holidays, by the Office PUBLIC of the Federal Register, National Archives and Records Administration, under the Federal Register Act (44 U.S.C. Ch. 15) Subscriptions: and the regulations of the Administrative Committee of the Federal Paper or fiche 202–512–1800 Register (1 CFR Ch. I). The Superintendent of Documents, U.S. Assistance with public subscriptions 202–512–1806 Government Publishing Office, is the exclusive distributor of the official edition. Periodicals postage is paid at Washington, DC. General online information 202–512–1530; 1–888–293–6498 Single copies/back copies: The FEDERAL REGISTER provides a uniform system for making available to the public regulations and legal notices issued by Paper or fiche 202–512–1800 Federal agencies. These include Presidential proclamations and Assistance with public single copies 1–866–512–1800 Executive Orders, Federal agency documents having general (Toll-Free) applicability and legal effect, documents required to be published FEDERAL AGENCIES by act of Congress, and other Federal agency documents of public Subscriptions: interest. Assistance with Federal agency subscriptions: Documents are on file for public inspection in the Office of the Federal Register the day before they are published, unless the Email [email protected] issuing agency requests earlier filing. For a list of documents Phone 202–741–6000 currently on file for public inspection, see www.federalregister.gov. The seal of the National Archives and Records Administration The Federal Register Printing Savings Act of 2017 (Pub. L. 115- authenticates the Federal Register as the official serial publication 120) placed restrictions on distribution of official printed copies established under the Federal Register Act. Under 44 U.S.C. 1507, of the daily Federal Register to members of Congress and Federal the contents of the Federal Register shall be judicially noticed. offices. Under this Act, the Director of the Government Publishing The Federal Register is published in paper and on 24x microfiche. Office may not provide printed copies of the daily Federal Register It is also available online at no charge at www.govinfo.gov, a unless a Member or other Federal office requests a specific issue service of the U.S. Government Publishing Office. or a subscription to the print edition. For more information on how to subscribe use the following website link: https:// The online edition of the Federal Register is issued under the www.gpo.gov/frsubs. authority of the Administrative Committee of the Federal Register as the official legal equivalent of the paper and microfiche editions (44 U.S.C. 4101 and 1 CFR 5.10). It is updated by 6:00 a.m. each day the Federal Register is published and includes both text and graphics from Volume 1, 1 (March 14, 1936) forward. For more information, contact the GPO Customer Contact Center, U.S. Government Publishing Office. Phone 202-512-1800 or 866-512- 1800 (toll free). E-mail, gpocusthelp.com. The annual subscription price for the Federal Register paper edition is $860 plus postage, or $929, for a combined Federal Register, Federal Register Index and List of CFR Sections Affected (LSA) subscription; the microfiche edition of the Federal Register including the Federal Register Index and LSA is $330, plus postage. Six month subscriptions are available for one-half the annual rate. The prevailing postal rates will be applied to orders according to the delivery method requested. The price of a single copy of the daily Federal Register, including postage, is based on the number of pages: $11 for an issue containing less than 200 pages; $22 for an issue containing 200 to 400 pages; and $33 for an issue containing more than 400 pages. Single issues of the microfiche edition may be purchased for $3 per copy, including postage. Remit check or money order, made payable to the Superintendent of Documents, or charge to your GPO Deposit Account, VISA, MasterCard, American Express, or Discover. Mail to: U.S. Government Publishing Office—New Orders, P.O. Box 979050, St. Louis, MO 63197-9000; or call toll free 1-866-512-1800, DC area 202-512-1800; or go to the U.S. Government Online Bookstore site, see bookstore.gpo.gov. There are no restrictions on the republication of material appearing in the Federal Register. How To Cite This Publication: Use the volume number and the page number. Example: 85 FR 12345. Postmaster: Send address changes to the Superintendent of Documents, Federal Register, U.S. Government Publishing Office, Washington, DC 20402, along with the entire mailing label from the last issue received.

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Contents Federal Register Vol. 85, No. 95

Friday, May 15, 2020

Agriculture Department Commodity Credit Corporation See Animal and Plant Health Inspection Service NOTICES See Commodity Credit Corporation Solicitation of Applications: See Food and Nutrition Service Higher Blends Infrastructure Incentive Program for Fiscal See Forest Service Year 2020, 29394–29395 See Rural Business-Cooperative Service Corporation for National and Community Service Animal and Plant Health Inspection Service NOTICES NOTICES Privacy Act; Systems of Records, 29412–29413 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Defense Department Imported Seeds and Screenings, 29392–29393 NOTICES Solicitation for Membership: Science and Technology Reinvention Laboratory Personnel General Conference Committee of the National Poultry Management Demonstration Project in the Joint Warfare Improvement Plan; Correction, 29393 Analysis Center of the United States Strategic Command, 29414–29440 Centers for Disease Control and Prevention NOTICES Drug Enforcement Administration Agency Information Collection Activities; Proposals, PROPOSED RULES Submissions, and Approvals, 29450–29458 Schedules of Controlled Substances: Meetings: Placement of para-Methoxymethamphetamine (PMMA) in Healthcare Infection Control Practices Advisory Schedule I, 29359–29366 Committee; Cancellation, 29454 NOTICES Request for Information: Importer of Controlled Substances Application: Personnel and the Retention of Next Generation Restek Corporation, 29486 Sequencing Data in Clinical and Public Health Education Department Laboratories, 29456–29457 NOTICES Waivers Granted Under Section 3511 of the Coronavirus Children and Families Administration Aid, Relief, and Economic Security Act, 29440–29441 NOTICES Meetings: Election Assistance Commission Tribal Consultation, 29458–29459 NOTICES Meetings; Sunshine Act, 29441–29442 Civil Rights Commission NOTICES Energy Department Meetings: See Federal Energy Regulatory Commission North Dakota Advisory Committee, 29395–29396 PROPOSED RULES Washington Advisory Committee, 29396 Energy Conservation Program: Test Procedure for Consumer Boilers, 29352–29358 Coast Guard PROPOSED RULES Environmental Protection Agency Special Local Regulations: RULES Marine Events Within the Fifth Coast Guard District; Air Quality State Implementation Plans; Approvals and Withdrawal, 29369 Promulgations: NOTICES Nebraska, 29329–29331 Solicitation for Members: Nebraska; Lincoln-Lancaster County Health Department, National Merchant Marine Personnel Advisory 29327–29329 Committee, 29467–29468 Virginia; Emissions Statement Certification for the 2015 Ozone National Ambient Air Quality Standard, Commerce Department 29325–29327 See Foreign-Trade Zones Board Designation of Areas for Air Quality Planning Purposes: See Industry and Security Bureau Indiana; Redesignation of the Muncie, Indiana Lead See International Trade Administration Nonattainment Area, 29331–29338 See National Oceanic and Atmospheric Administration Pesticide Tolerances: See National Telecommunications and Information Acequinocyl, 29338–29340 Administration Isoxaben, 29340–29345 PROPOSED RULES Committee for Purchase From People Who Are Blind or Air Quality State Implementation Plans; Approvals and Severely Disabled Promulgations: NOTICES California; San Diego County Air Pollution Control Procurement List; Additions and Deletions, 29410–29412 District; Stationary Source Permits, 29377–29381

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Kentucky; Redesignation of the Jefferson County 2010 1- Incidental Take; Proposed Habitat Conservation Plan for Hour Sulfur Dioxide Nonattainment Area to the Sand Skink, Orange County, FL; Categorical Attainment, 29381–29391 Exclusion, 29475–29477 Oregon; 2010 Sulfur Dioxide National Ambient Air Quality Standards Interstate Transport Requirements, Food and Drug Administration 29369–29377 NOTICES NOTICES Agency Information Collection Activities; Proposals, Administration of Cross-State Air Pollution Rule Trading Submissions, and Approvals, 29459–29461 Program Assurance Provisions for 2019 Control Policy for Coronavirus Disease–2019 Tests During the Periods, 29445–29446 Public Health Emergency: Environmental Impact Statements; Availability, etc.: Immediately in Effect Guidance for Clinical Laboratories, Weekly Receipt, 29446 Commercial Manufacturers, and Food and Drug Exemption; Issuance: Administration Staff, 29461–29463 Underground Injection Control Program; Hazardous Waste Injection Restrictions; Petition for Food and Nutrition Service Reissuance—Class I Hazardous Waste Injection; The NOTICES Chemours Co., FC, LLC, Chemours Titanium Agency Information Collection Activities; Proposals, Technologies DeLisle Plant, Pass Christian, MS, Submissions, and Approvals, 29393–29394 29447 Meetings: Foreign-Trade Zones Board Toxic Substances Control Act Science Advisory NOTICES Committee on Chemicals, 29446–29447 Approval of Subzone Status: Cheniere Energy, Inc., Portland, TX, 29396–29397 Federal Emergency Management Agency Proposed Production Activity: NOTICES CoLinx, LLC, Foreign-Trade Zone 148; Knoxville, TN, Agency Information Collection Activities; Proposals, 29397–29398 Submissions, and Approvals: LiCAP Technologies, Inc., Foreign-Trade Zone 143; West Preparedness Grants: Nonprofit Security Grant Program, Sacramento, CA, 29397 29471–29472 Subzone Application: Puma Energy Caribe, LLC; Foreign-Trade Zone 7; Federal Energy Regulatory Commission Mayaguez, PR, 29397 NOTICES Application: Forest Service Texas Eastern Transmission, LP, 29443–29444 NOTICES Combined Filings, 29442–29443 Meetings: Initial Market-Based Rate Filings Including Requests for Tri-County Resource Advisory Committee, 29394 Blanket Section 204 Authorizations: Aurora Wind Project, LLC, 29442 General Services Administration Request Under Blanket Authorization: NOTICES Dominion Energy Overthrust Pipeline, LLC, 29444–29445 Land Ports of Entry: Revised Project Action, 29449–29450 Federal Highway Administration NOTICES Health and Human Services Department Final Federal Agency Actions: See Centers for Disease Control and Prevention Proposed Highway Project in Rhode Island, 29504–29505 See Children and Families Administration See Food and Drug Administration Federal Reserve System See Health Resources and Services Administration NOTICES See National Institutes of Health Agency Information Collection Activities; Proposals, Submissions, and Approvals, 29447–29449 Health Resources and Services Administration NOTICES Federal Trade Commission Meetings: PROPOSED RULES Advisory Committee on Infant Mortality, 29464 Semiannual Regulatory Agenda; Withdrawal, 29359 Homeland Security Department Fish and Wildlife Service See Coast Guard RULES See Federal Emergency Management Agency Endangered and Threatened Species: See U.S. Customs and Border Protection Endangered Species Status for Southern Sierra Nevada NOTICES Distinct Population Segment of Fisher, 29532–29589 Determination Pursuant to the Illegal Immigration Reform NOTICES and Immigrant Responsibility Act, 29472–29473 Environmental Impact Statements; Availability, etc.: Upper Santa Ana River Wash Habitat Conservation Plan; Housing and Urban Development Department San Bernardino County, CA, 29474–29475 NOTICES Permit Application: Agency Information Collection Activities; Proposals, Incidental Take; Proposed Habitat Conservation Plan for Submissions, and Approvals the Sand Skink, Lake County, FL; Categorical Allocation of Operating Fund Grant Under the Operating Exclusion, 29477–29479 Fund Formula: Data Collection, 29473–29474

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Industry and Security Bureau Labor Department NOTICES NOTICES Agency Information Collection Activities; Proposals, Amendment to Procedural Guidelines for the Development Submissions, and Approvals: and Maintenance of the List of Goods Produced by Technology Letter of Explanation, 29398–29399 Child Labor or Forced Labor, 29487–29490 Meetings: Regulations and Procedures Technical Advisory National Drug Control Policy Office Committee, 29398 PROPOSED RULES Criteria for Designation of Emerging Drug Threats in the Institute of Museum and Library Services United States, 29366–29368 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: National Foundation on the Arts and the Humanities Museums Empowered: Professional Development See Institute of Museum and Library Services Opportunities for Museum Staff, 29490–29491 National Institutes of Health Interior Department NOTICES See Fish and Wildlife Service Meetings: See National Park Service Center for Scientific Review, 29464–29466 Eunice Kennedy Shriver National Institute of Child Internal Revenue Service Health and Human Development, 29464 RULES National Institute of Diabetes and Digestive and Kidney Foreign Tax Credit Guidance Related to the Tax Cuts and Diseases, 29467 Jobs Act, Overall Foreign Loss Recapture, and Foreign National Institute of General Medical Sciences, 29466 Tax Redeterminations; Correcting Amendment, 29323 National Institute on Aging, 29466 PROPOSED RULES National Institute on Minority Health and Health Guidance Related to the Allocation and Apportionment of Disparities, 29466–29467 Deductions and Foreign Taxes, Financial Services Income, Foreign Tax Redeterminations, Foreign Tax Credit Disallowance Under Section 965(g), and National Oceanic and Atmospheric Administration Consolidated Groups; Correction, 29368–29369 RULES NOTICES Fisheries of the Northeastern United States: Agency Information Collection Activities; Proposals, Summer Flounder, Scup, and Black Sea Bass Fisheries; Submissions, and Approvals: Revised 2020 and Projected 2021 Black Sea Bass and Disclosure of Returns and Return Information by Other Scup Specifications, 29345–29347 Agencies, 29528–29529 NOTICES Agency Information Collection Activities; Proposals, International Trade Administration Submissions, and Approvals: NOTICES Coastal and Marine Ecological Classification Standard Antidumping or Countervailing Duty Investigations, Orders, Solicitation for Revisions, 29407 or Reviews: Nautical Discrepancy Reporting System, 29405–29406 Certain Hot-Rolled Steel Flat Products From Turkey, Southeast Region Individual Fishing Quota Programs, 29399–29401 29408–29409 Stainless Steel Sheet and Strip From the People’s Meetings: Republic of China, 29401–29403 Caribbean Fishery Management Council, 29406–29407 Steel Wire Garment Hangers From the People’s Republic Fisheries of the Atlantic; Southeast Data, Assessment, of China:, 29403–29405 and Review, 29408 Fisheries of the Gulf of Mexico; Southeast Data, International Trade Commission Assessment, and Review, 29409–29410 NOTICES New England Fishery Management Council, 29406 Investigations; Determinations, Modifications, and Rulings, etc.: National Park Service Carbon Steel Wire Rod From China, 29483–29484 NOTICES Certain Child Carriers and Components Thereof, 29484– Agency Information Collection Activities; Proposals, 29485 Submissions, and Approvals: Certain Tobacco Heating Articles and Components National Heritage Areas Program Annual Reporting Thereof, 29482–29483 Forms, 29481–29482 Non-Refillable Steel Cylinders From China, 29484 Inventory Completion: Justice Department Columbus State University, Columbus, GA, 29479–29480 Pueblo Grande Museum, Phoenix, AZ, 29480–29481 See Drug Enforcement Administration See Justice Programs Office National Telecommunications and Information Justice Programs Office Administration NOTICES NOTICES Request for Information: Agency Information Collection Activities; Proposals, Physical and Digital Management Software Products Submissions, and Approvals: Market Survey, 29486–29487 911 Grant Program Annual Performance Report, 29410

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Nuclear Regulatory Commission Exemption for Intra-Corporate Family Transaction: PROPOSED RULES Fortress Investment Group LLC; Ohio River Partners Backfitting, Forward Fitting, and Issue Finality Guidance, Shareholder LLC and Katahdin Railcar Services LLC, 29358–29359 29502–29503 Trackage Rights Exemption: Pension Benefit Guaranty Corporation Clarkdale Arizona Central Railroad, LC; Drake Cement, RULES LLC, 29501–29502 Benefits Payable in Terminated Single-Employer Plans; Interest Assumptions for Paying Benefits, 29323–29324 Trade Representative, Office of United States Personnel Management Office NOTICES PROPOSED RULES Product Exclusion Extensions: Appointment of Current and Former Land Management China’s Acts, Policies, and Practices Related to Employees, 29348–29352 Technology Transfer, Intellectual Property, and NOTICES Innovation, 29503–29504 Meetings: Federal Prevailing Rate Advisory Committee; Cancellation, 29491 Transportation Department See Federal Highway Administration Pipeline and Hazardous Materials Safety Administration See Pipeline and Hazardous Materials Safety NOTICES Administration Hazardous Materials: New York City Permit Requirements for Transportation of Certain Hazardous Materials, 29505–29511 Treasury Department Washington Crude Oil by Rail Volatility Requirements, See Internal Revenue Service 29511–29528 U.S. Customs and Border Protection Postal Regulatory Commission NOTICES RULES Agency Information Collection Activities; Proposals, Reorganization of Postal Regulatory Commission Rules; Submissions, and Approvals: Correction, 29324–29325 NOTICES Passenger and Crew Manifest, 29469–29471 Market Test of Experimental Product, 29491–29492 Revocation of Customs Brokers’ Licenses, 29468–29469 New Postal Product, 29491 Tuna Tariff-Rate Quota for Calendar Year 2020 for Tuna Classifiable Under Subheading 1604.14.22, Harmonized Postal Service Tariff Schedule of the United States, 29469 NOTICES Privacy Act; Systems of Records, 29492–29497 Rural Business–Cooperative Service Separate Parts In This Issue NOTICES Solicitation of Applications: Part II Higher Blends Infrastructure Incentive Program for Fiscal Interior Department, Fish and Wildlife Service, 29532– Year 2020, 29394–29395 29589 Securities and Exchange Commission NOTICES Self-Regulatory Organizations; Proposed Rule Changes: Reader Aids Miami International Securities Exchange, LLC, 29497– 29499 Consult the Reader Aids section at the end of this issue for The Nasdaq Stock Market, LLC, 29499–29501 phone numbers, online resources, finding aids, and notice of recently enacted public laws. Surface Transportation Board To subscribe to the Federal Register Table of Contents NOTICES electronic mailing list, go to https://public.govdelivery.com/ Abandonment Exemption: accounts/USGPOOFR/subscriber/new, enter your e-mail CSX Transportation, Inc. in Dickenson County, VA, address, then follow the instructions to join, leave, or 29501 manage your subscription.

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CFR PARTS AFFECTED IN THIS ISSUE

A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.

5 CFR Proposed Rules: 315...... 29348 335...... 29348 10 CFR Proposed Rules: Ch. 1 ...... 29358 430...... 29352 16 CFR Proposed Rules: Ch. 1 ...... 29359 21 CFR Proposed Rules: 1308...... 29359 1401...... 29366 26 CFR 1...... 29323 Proposed Rules: 1...... 29368 301...... 29368 29 CFR 4022...... 29323 33 CFR Proposed Rules: 100...... 29369 39 CFR 3045...... 29324 40 CFR 52 (4 documents) ...... 29325, 29327, 29329, 29331 70...... 29329 81...... 29331 180 (2 documents) ...... 29338, 29340 Proposed Rules: 52 (3 documents) ...... 29369, 29377, 29381 81...... 29381 50 CFR 17...... 29532 648...... 29345

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Rules and Regulations Federal Register Vol. 85, No. 95

Friday, May 15, 2020

This section of the FEDERAL REGISTER Correction of Publication amended return) either for all taxable contains regulatory documents having general Accordingly, 26 CFR part 1 is years beginning after December 31, applicability and legal effect, most of which 2017, and before January 1, 2020, or for are keyed to and codified in the Code of corrected by making the following correcting amendments: its last taxable year beginning before Federal Regulations, which is published under January 1, 2020, without the prior 50 titles pursuant to 44 U.S.C. 1510. PART 1—INCOME TAXES consent of the Commissioner. * * * The Code of Federal Regulations is sold by * * * * * the Superintendent of Documents. ■ Paragraph 1. The authority citation for part 1 continues to read in part as § 1.904–4 [Amended] follows: ■ Par. 4. Section 1.904–4(c)(6)(iii) is DEPARTMENT OF THE TREASURY Authority: 26 U.S.C. 7805 * * * amended by removing the language Internal Revenue Service ■ Par. 2. Section 1.861–8 is amended by ‘‘deemed paid or accrued’’ and adding revising the second and third sentence the language ‘‘deemed paid’’ in its 26 CFR Part 1 in paragraph (c)(4) and revising the first place. sentence in paragraph (e)(6)(i) to read as § 1.904–5 [Amended] [TD 9882] follows: ■ Par. 5. Section 1.904–5 is amended by RIN 1545–BP19; 1545–BK55; 1545–AC09 § 1.861–8 Computation of taxable income removing paragraph (c)(1)(ii). from sources within the United States and § 1.904(g)–0 [Amended] Foreign Tax Credit Guidance Related from other sources and activities to the Tax Cuts and Jobs Act, Overall * * * * * ■ Par. 6. Section 1.904(g)–0 is amended Foreign Loss Recapture, and Foreign (c) * * * by adding ‘‘the’’ in the heading for Tax Redeterminations; Correcting (4) * * * In determining whether two § 1.904(g)–3 before the word Amendment or more corporations are members of the ‘‘recapture’’. same controlled group under section AGENCY: Internal Revenue Service (IRS), 267(b)(3), a person is considered to own Martin V. Franks, Treasury. stock owned directly by such person, Chief, Publications and Regulations Branch, Legal Processing Division, Associate Chief ACTION: Correcting amendments. stock owned by application of section Counsel, (Procedure and Administration). 1563(e)(1), and stock owned by SUMMARY: This document contains application of section 267(c). In [FR Doc. 2020–08995 Filed 5–14–20; 8:45 am] corrections to Treasury Decision 9882, determining whether a corporation is BILLING CODE 4830–01–P which was published in the Federal related to a partnership under section Register on Tuesday, December 17, 267(b)(10), a person is considered to 2019. Treasury Decision 9882 contained own the partnership interest owned PENSION BENEFIT GUARANTY final and temporary regulations that directly by such person and the CORPORATION provide guidance relating to the partnership interest owned by 29 CFR Part 4022 determination of the foreign tax credit application of section 267(e)(3). under the Internal Revenue Code. * * * * * Benefits Payable in Terminated Single- DATES: These corrections are effective (e) * * * Employer Plans; Interest Assumptions on May 15, 2020 and applicable (6) * * * for Paying Benefits December 17, 2019. (i) * * * The deduction for foreign FOR FURTHER INFORMATION CONTACT: income, war profits and excess profits AGENCY: Pension Benefit Guaranty Jeffrey P. Cowan, (202) 317–4924 (not a taxes allowed by section 164 (including Corporation. toll-free number). with respect to a controlled foreign ACTION: Final rule. SUPPLEMENTARY INFORMATION: corporation) is allocated and apportioned among the applicable SUMMARY: This final rule amends the Background statutory and residual groupings under Pension Benefit Guaranty Corporation’s regulation on Benefits Payable in The final regulations (TD 9882) that the principles of § 1.904–6(a)(1)(i), (ii), Terminated Single-Employer Plans to are the subject of this correction are and (iv). * * * prescribe certain interest assumptions under sections 861 and 904 of the * * * * * under the regulation for plans with Internal Revenue Code. ■ Par. 3. Section 1.861–17 is amended valuation dates in June 2020. These Need for Correction by revising the first sentence in interest assumptions are used for paying paragraph (e)(3) to read as follows: As published December 17, 2019 (84 certain benefits under terminating FR 69022), the final and temporary § 1.861–17 Allocation and apportionment single-employer plans covered by the regulations (TD 9882; FR Doc. 2019– of research and experimental expenditures. pension insurance system administered 24848) contained errors that need to be * * * * * by PBGC. corrected. (e) * * * DATES: Effective June 1, 2020. (3) * * * A taxpayer otherwise FOR FURTHER INFORMATION CONTACT: List of Subjects in 26 CFR Part 1 subject to the binding election described Gregory Katz ([email protected]), Income taxes, Reporting and in paragraph (e)(1) of this section may Attorney, Regulatory Affairs Division, recordkeeping requirements. change its method (on an original or an Pension Benefit Guaranty Corporation,

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1200 K Street NW, Washington, DC This final rule updates appendices B PBGC has determined that this action 20005, 202–326–4400 ext. 3829. (TTY and C of the benefit payments regulation is not a ‘‘significant regulatory action’’ users may call the Federal relay service to provide the rates for June 2020 under the criteria set forth in Executive toll-free at 1–800–877–8339 and ask to measurement dates. Order 12866. be connected to 202–326–4400, ext. The June 2020 lump sum interest Because no general notice of proposed 3829.) assumptions will be 0.00 percent for the rulemaking is required for this SUPPLEMENTARY INFORMATION: PBGC’s period during which a benefit is (or is amendment, the Regulatory Flexibility regulation on Benefits Payable in assumed to be) in pay status and 4.00 Act of 1980 does not apply. See 5 U.S.C. Terminated Single-Employer Plans (29 percent during any years preceding the 601(2). CFR part 4022) prescribes actuarial benefit’s placement in pay status. In List of Subjects in 29 CFR Part 4022 assumptions—including interest comparison with the interest assumptions—for paying plan benefits assumptions in effect for May 2020, Employee benefit plans, Pension under terminated single-employer plans these assumptions represent a decrease insurance, Pensions, Reporting and covered by title IV of the Employee of 0.50 percent in the immediate rate recordkeeping requirements. Retirement Income Security Act of 1974 and are otherwise unchanged. In consideration of the foregoing, 29 (ERISA). The interest assumptions in PBGC updates appendices B and C CFR part 4022 is amended as follows: the regulation are also published on each month. PBGC has determined that PBGC’s website (https://www.pbgc.gov). notice and public comment on this PBGC uses the interest assumptions in PART 4022—BENEFITS PAYABLE IN amendment are impracticable and appendix B to part 4022 (‘‘Lump Sum TERMINATED SINGLE-EMPLOYER Interest Rates for PBGC Payments’’) to contrary to the public interest. This PLANS determine whether a benefit is payable finding is based on the need to issue as a lump sum and to determine the new interest assumptions promptly so ■ 1. The authority citation for part 4022 amount to pay. Because some private- that they are available for plans that rely continues to read as follows: sector pension plans use these interest on our publication of them each month to calculate lump sum benefit amounts. Authority: 29 U.S.C. 1302, 1322, 1322b, rates to determine lump sum amounts 1341(c)(3)(D), and 1344. payable to plan participants (if the Because of the need to provide resulting lump sum is larger than the immediate guidance for the payment of ■ 2. In appendix B to part 4022, rate set amount required under section 417(e)(3) benefits under plans with valuation 320 is added at the end of the table to of the Internal Revenue Code and dates during June 2020, PBGC finds that read as follows: section 205(g)(3) of ERISA), these rates good cause exists for making the are also provided in appendix C to part assumptions set forth in this Appendix B to Part 4022—Lump Sum 4022 (‘‘Lump Sum Interest Rates for amendment effective less than 30 days Interest Rates for PBGC Payments Private-Sector Payments’’). after publication. * * * * *

For plans with a valuation Immediate Deferred annuities Rate set date annuity rate (percent) (percent) On or after Before i1 i2 i3 n1 n2

******* 320 6–1–20 7–1–20 0.00 4.00 4.00 4.00 7 8

■ 3. In appendix C to part 4022, rate set Appendix C to Part 4022—Lump Sum 320 is added at the end of the table to Interest Rates for Private-Sector read as follows: Payments * * * * *

For plans with a valuation Immediate Deferred annuities Rate set date annuity rate (percent) (percent) On or after Before i1 i2 i3 n1 n2

******* 320 6–1–20 7–1–20 0.00 4.00 4.00 4.00 7 8

Issued in Washington, DC. POSTAL REGULATORY COMMISSION ACTION: Correcting amendment. Hilary Duke, Assistant General Counsel for Regulatory 39 CFR Part 3045 SUMMARY: On April 20, 2020, the Postal Affairs, Pension Benefit Guaranty Regulatory Commission revised Corporation. [Docket No. RM2019–13; Order No. 5407] Commission rules. That document [FR Doc. 2020–10075 Filed 5–14–20; 8:45 am] incorrectly listed a cross-reference. This Reorganization of Postal Regulatory BILLING CODE 7709–02–P document corrects the final regulations Commission Rules; Correction by removing the incorrect cross- AGENCY: Postal Regulatory Commission. reference.

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DATES: Effective on May 15, 2020. submitted by the Commonwealth of under 9VAC5–20–160 (Registration) of FOR FURTHER INFORMATION CONTACT: Virginia (Virginia). The revision the Virginia Administrative Code and David A. Trissell, General Counsel, at provides Virginia’s certification that its are SIP-approved under 40 CFR 202–789–6820. existing emissions statement program 52.2420(c). According to Virginia, these SUPPLEMENTARY INFORMATION: The rule satisfies the emissions statement provisions mandate that facilities published on April 20, 2020 (85 FR requirements of the Clean Air Act (CAA) emitting more than 25 tons per year 9614), incorrectly listed a cross- for the 2015 ozone National Ambient (tpy) of nitrogen oxides (NOX) or reference in § 3045.18(d)(2)(i)(B), and Air Quality Standard (NAAQS). EPA is volatile organic compounds (VOC) must this document corrects the final approving Virginia’s emissions submit emissions statements to Virginia regulations by removing that incorrect statement program certification for the while those emitting less than 25 tpy cross-reference. 2015 ozone NAAQS as a SIP revision in must comply with inventory accordance with the requirements of the requirements. List of Subjects in 39 CFR Part 3045 CAA. EPA’s review of the Commonwealth Administrative practice and DATES: This final rule is effective on of Virginia’s submittal finds that procedure, Postal Service. June 15, 2020. Virginia’s existing, SIP-approved emissions statement program under Accordingly, 39 CFR part 3045 is ADDRESSES: EPA has established a 9VAC5–20–160 satisfies the emissions corrected by making the following docket for this action under Docket ID statement requirements of CAA section correcting amendment: Number EPA–R03–OAR–2019–0694. All 182(a)(3)(B) for stationary sources documents in the docket are listed on located in nonattainment areas in PART 3045—RULES FOR MARKET the https://www.regulations.gov Virginia, including such sources in the TESTS OF EXPERIMENTAL website. Although listed in the index, Virginia portion of the Washington, DC– PRODUCTS some information is not publicly MD–VA nonattainment area, for the available, e.g., confidential business ■ 2015 ozone NAAQS. Pursuant to CAA 1. The authority for part 3045 information (CBI) or other information continues to read as follows: section 182, Virginia is required to have whose disclosure is restricted by statute. an emissions statement program for Authority: 39 U.S.C. 503; 3641. Certain other material, such as sources located in nonattainment areas. ■ 2. Amend § 3045.18 by revising copyrighted material, is not placed on EPA finds the provisions under 9VAC5– paragraph (d)(2)(i)(B) to read as follows: the internet and will be publicly 20–160 satisfy the requirements of CAA available only in hard copy form. section 182(a)(3)(B) for the 2015 ozone § 3045.18 Request to add a non- Publicly available docket materials are experimental product or price category NAAQS because they apply to the available through https:// Northern Virginia Emissions Control based on an experimental product to the www.regulations.gov, or please contact product list. Area, which includes the Virginia the person identified in the FOR FURTHER * * * * * portion of the Washington, DC–MD–VA INFORMATION CONTACT section for 2015 ozone NAAQS nonattainment area (d) * * * additional availability information. (2)(i) * * * (i.e. Arlington County, Fairfax County, FOR FURTHER INFORMATION CONTACT: Erin (B) The market test is expected to Loudoun County, Prince William Malone, Planning & Implementation exceed any authorized limitation County, Alexandria City, Fairfax City, Branch (3AD30), Air & Radiation specified in §§ 3045.15 and 3045.16 Falls Church City, Manassas City, and Division, U.S. Environmental Protection during any fiscal year, whichever is Manassas Park City). EPA also finds Agency, Region III, 1650 Arch Street, earlier. Virginia’s emissions thresholds for Philadelphia, Pennsylvania 19103. The sources that are required to submit an * * * * * telephone number is (215) 814–2190. emissions statement meet the By the Commission. Ms. Malone can also be reached via requirements of CAA section Erica A. Barker, electronic mail at [email protected]. 182(a)(3)(B)(ii). As stated previously, Secretary. SUPPLEMENTARY INFORMATION: 9VAC5–20–160 requires the owner of any stationary source located in an [FR Doc. 2020–09023 Filed 5–14–20; 8:45 am] I. Background BILLING CODE 7710–FW–P emissions control area that emits 25 tpy On February 10, 2020 (85 FR 7496), or more of VOC or NOX to annually EPA published a notice of proposed submit an emissions statement. This 25 ENVIRONMENTAL PROTECTION rulemaking (NPRM) for the tpy threshold is equivalent to the AGENCY Commonwealth of Virginia. In the threshold required by CAA section NPRM, EPA proposed approval of 182(a)(3)(B)(ii). As previously 40 CFR Part 52 Virginia’s certification that Virginia’s mentioned, per CAA section emissions statement regulation meets 182(a)(3)(B)(ii), states may waive this [EPA–R03–OAR–2019–0694; FRL–10008– the emissions statement requirement of requirement for sources that emit less 56–Region 3] section 182(a)(3)(B) of the CAA for the than 25 tpy of NOX or VOC if the state Air Plan Approval; Virginia; Emissions 2015 ozone NAAQS. The formal SIP provides an inventory of emissions from Statement Certification for the 2015 revision was submitted by Virginia, such class or category of sources as Ozone National Ambient Air Quality through the Virginia Department of required by CAA sections 172 and 182. Standard Environmental Quality (VADEQ), on Virginia provides emissions inventories July 30, 2019. for nonattainment areas as required by AGENCY: Environmental Protection CAA section 172(c)(3).1 Therefore, EPA II. Summary of SIP Revision and EPA Agency (EPA). Analysis ACTION: Final rule. 1 See, e.g. ‘‘Approval and Promulgation of Air In Virginia’s July 30, 2019 SIP Quality Implementation Plans; District of Columbia, SUMMARY: revision submittal, Virginia states that Maryland, and Virginia; 2011 Base Year Emissions The Environmental Protection Inventories for the Washington DC–MD–VA Agency (EPA) is approving a state the emissions statement requirements of Nonattainment Area for the 2008 Ozone National implementation plan (SIP) revision CAA section 182(a)(3)(B) are contained Continued

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has determined that 9VAC5–20–160, information ‘‘required by law,’’ 42 U.S.C. 7410(k); 40 CFR 52.02(a). which is currently in the Virginia SIP, including documents and information Thus, in reviewing SIP submissions, is appropriate to address the emissions ‘‘required by Federal law to maintain EPA’s role is to approve state choices, statement requirements in section program delegation, authorization or provided that they meet the criteria of 182(a)(3)(B) for the 2015 ozone NAAQS. approval,’’ since Virginia must ‘‘enforce the CAA. Accordingly, this action merely approves state law as meeting III. Final Action Federally authorized environmental programs in a manner that is no less Federal requirements and does not EPA is approving, as a SIP revision, stringent than their Federal impose additional requirements beyond the Commonwealth of Virginia’s July 30, counterparts. . . .’’ The opinion those imposed by state law. For that 2019 emissions statement certification concludes that ‘‘[r]egarding § 10.1–1198, reason, this action: for the 2015 ozone NAAQS as therefore, documents or other • Is not a ‘‘significant regulatory approvable under CAA section information needed for civil or criminal action’’ subject to review by the Office 182(a)(3)(B). Virginia’s emissions enforcement under one of these of Management and Budget under statement certification certifies that programs could not be privileged Executive Orders 12866 (58 FR 51735, Virginia’s existing SIP-approved because such documents and October 4, 1993) and 13563 (76 FR 3821, emissions statement program under information are essential to pursuing January 21, 2011); 9VAC5–20–160 satisfies the enforcement in a manner required by • Is not an Executive Order 13771 (82 requirements of CAA section Federal law to maintain program FR 9339, February 2, 2017) regulatory 182(a)(3)(B) for the 2015 ozone NAAQS. delegation, authorization or approval.’’ action because SIP approvals are IV. General Information Pertaining to Virginia’s Immunity law, Va. Code exempted under Executive Order 12866. SIP Submittals From the Sec. 10.1–1199, provides that ‘‘[t]o the • Does not impose an information Commonwealth of Virginia extent consistent with requirements collection burden under the provisions imposed by Federal law,’’ any person of the Paperwork Reduction Act (44 In 1995, Virginia adopted legislation making a voluntary disclosure of U.S.C. 3501 et seq.); that provides, subject to certain information to a state agency regarding • Is certified as not having a conditions, for an environmental a violation of an environmental statute, significant economic impact on a assessment (audit) ‘‘privilege’’ for regulation, permit, or administrative substantial number of small entities voluntary compliance evaluations order is granted immunity from under the Regulatory Flexibility Act (5 performed by a regulated entity. The administrative or civil penalty. The U.S.C. 601 et seq.); legislation further addresses the relative Attorney General’s January 12, 1998 • burden of proof for parties either Does not contain any unfunded opinion states that the quoted language mandate or significantly or uniquely asserting the privilege or seeking renders this statute inapplicable to disclosure of documents for which the affect small governments, as described enforcement of any federally authorized in the Unfunded Mandates Reform Act privilege is claimed. Virginia’s programs, since ‘‘no immunity could be legislation also provides, subject to of 1995 (Pub. L. 104–4); afforded from administrative, civil, or • Does not have federalism certain conditions, for a penalty waiver criminal penalties because granting for violations of environmental laws implications as specified in Executive such immunity would not be consistent Order 13132 (64 FR 43255, August 10, when a regulated entity discovers such with Federal law, which is one of the violations pursuant to a voluntary 1999); criteria for immunity.’’ • Is not an economically significant compliance evaluation and voluntarily Therefore, EPA has determined that discloses such violations to the regulatory action based on health or Virginia’s Privilege and Immunity safety risks subject to Executive Order Commonwealth and takes prompt and statutes will not preclude the appropriate measures to remedy the 13045 (62 FR 19885, April 23, 1997); Commonwealth from enforcing its • Is not a significant regulatory action violations. Virginia’s Voluntary program consistent with the Federal Environmental Assessment Privilege subject to Executive Order 13211 (66 FR requirements. In any event, because 28355, May 22, 2001); Law, Va. Code Sec. 10.1–1198, provides EPA has also determined that a state • a privilege that protects from disclosure Is not subject to requirements of audit privilege and immunity law can section 12(d) of the National documents and information about the affect only state enforcement and cannot content of those documents that are the Technology Transfer and Advancement have any impact on Federal Act of 1995 (15 U.S.C. 272 note) because product of a voluntary environmental enforcement authorities, EPA may at assessment. The Privilege Law does not application of those requirements would any time invoke its authority under the be inconsistent with the CAA; and extend to documents or information CAA, including, for example, sections • that: (1) Are generated or developed Does not provide EPA with the 113, 167, 205, 211 or 213, to enforce the discretionary authority to address, as before the commencement of a requirements or prohibitions of the state voluntary environmental assessment; (2) appropriate, disproportionate human plan, independently of any state health or environmental effects, using are prepared independently of the enforcement effort. In addition, citizen assessment process; (3) demonstrate a practicable and legally permissible enforcement under section 304 of the methods, under Executive Order 12898 clear, imminent and substantial danger CAA is likewise unaffected by this, or to the public health or environment; or (59 FR 7629, February 16, 1994). any, state audit privilege or immunity The SIP is not approved to apply on (4) are required by law. law. On January 12, 1998, the any Indian reservation land as defined Commonwealth of Virginia Office of the V. Statutory and Executive Order in 18 U.S.C. 1151 or in any other area Attorney General provided a legal Reviews where EPA or an Indian tribe has demonstrated that a tribe has opinion that states that the Privilege A. General Requirements law, Va. Code Sec. 10.1–1198, precludes jurisdiction. In those areas of Indian granting a privilege to documents and Under the CAA, the Administrator is country, the rule does not have tribal required to approve a SIP submission implications and will not impose Ambient Air Quality Standard,’’ 80 FR 27255 (May that complies with the provisions of the substantial direct costs on tribal 13, 2015). CAA and applicable Federal regulations. governments or preempt tribal law as

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specified by Executive Order 13175 (65 C. Petitions for Judicial Review Dated: April 17, 2020. FR 67249, November 9, 2000). Under section 307(b)(1) of the CAA, Cosmo Servidio, Regional Administrator, Region III. B. Submission to Congress and the petitions for judicial review of this Comptroller General action must be filed in the United States 40 CFR part 52 is amended as follows: Court of Appeals for the appropriate The Congressional Review Act, 5 circuit by July 14, 2020. Filing a petition PART 52—APPROVAL AND U.S.C. 801 et seq., as added by the Small for reconsideration by the Administrator PROMULGATION OF Business Regulatory Enforcement of this final rule does not affect the IMPLEMENTATION PLANS Fairness Act of 1996, generally provides finality of this action for the purposes of that before a rule may take effect, the judicial review nor does it extend the ■ 1. The authority citation for part 52 agency promulgating the rule must time within which a petition for judicial continues to read as follows: review may be filed, and shall not submit a rule report, which includes a Authority: 42 U.S.C. 7401 et seq. copy of the rule, to each House of the postpone the effectiveness of such rule or action. This action approving Congress and to the Comptroller General Subpart VV—Virginia Virginia’s emissions statement of the United States. EPA will submit a certification for the 2015 ozone NAAQS ■ 2. In § 52.2420, the table in paragraph report containing this action and other may not be challenged later in (e)(1) is amended by adding an entry for required information to the U.S. Senate, proceedings to enforce its requirements. ‘‘Emissions Statement Certification for the U.S. House of Representatives, and (See section 307(b)(2).) the Comptroller General of the United the 2015 Ozone National Ambient Air States prior to publication of the rule in List of Subjects in 40 CFR Part 52 Quality Standard’’ at the end of the table the Federal Register. A major rule Environmental protection, Air to read as follows: cannot take effect until 60 days after it pollution control, Incorporation by § 52.2420 Identification of plan. reference, Intergovernmental relations, is published in the Federal Register. * * * * * This action is not a ‘‘major rule’’ as Nitrogen dioxide, Ozone, Reporting and (e) * * * defined by 5 U.S.C. 804(2). recordkeeping requirements, Volatile organic compounds. (1) * * *

Name of State non-regulatory Applicable geographic area submittal EPA approval date Additional explanation SIP revision date

******* Emissions Statement Virginia portion of the Washington, DC– 7/30/19 5/15/20, [insert Fed- Certification that Virginia’s previously SIP- Certification for the MD–VA nonattainment area for the eral Register cita- approved regulations at 9VAC5–20– 2015 Ozone Na- 2015 ozone NAAQS (i.e. Arlington tion]. 160 meet the emissions statement re- tional Ambient Air County, Fairfax County, Loudoun quirements of CAA section 182(a)(3)(B) Quality Standard. County, Prince William County, Alexan- for the 2015 ozone NAAQS. dria City, Fairfax City, Falls Church City, Manassas City, and Manassas Park City).

[FR Doc. 2020–08743 Filed 5–14–20; 8:45 am] This action will amend the Nebraska copyrighted material, is not placed on BILLING CODE 6560–50–P SIP by removing a portion of the SIP the internet and will be publicly that addresses the authority of LLCHD available only in hard copy form. regarding the Prevention of Significant Publicly available docket materials are ENVIRONMENTAL PROTECTION Deterioration (PSD) Program; available through https:// AGENCY specifically: Article 2. Section 19. www.regulations.gov or please contact Prevention of Significant Deterioration the person identified in the FOR FURTHER 40 CFR Part 52 of Air Quality (PSD) Lincoln-Lancaster INFORMATION CONTACT section for [EPA–R07–OAR–2019–0666; FRL–10008– County Health Department (LLCHD). additional information. This SIP revision will have no impact to 62-Region 7] FOR FURTHER INFORMATION CONTACT: Will air quality and eliminate confusion Stone, Environmental Protection regarding the authority to issue PSD Air Plan Approval; Nebraska; Lincoln- Agency, Region 7 Office, Air Quality permits in Lancaster County. Lancaster County Health Department Planning Branch, 11201 Renner (LLCHD) DATES: This final rule is effective on Boulevard, Lenexa, Kansas 66219; June 15, 2020. AGENCY: Environmental Protection telephone number (913) 551–7714; Agency (EPA). ADDRESSES: The EPA has established a email address [email protected] ACTION: Final rule. docket for this action under Docket ID SUPPLEMENTARY INFORMATION: No. EPA–R07–OAR–2019–0666. All Throughout this document ‘‘we,’’ ‘‘us,’’ SUMMARY: The Environmental Protection documents in the docket are listed on and ‘‘our’’ refer to EPA. Agency (EPA) is taking final action to the https://www.regulations.gov approve a revision to the State website. Although listed in the index, Table of Contents Implementation Plan (SIP) submitted by some information is not publicly I. What is being addressed in this document? the State of Nebraska that addresses the available, i.e., CBI or other information II. Have the requirements for approval of a authority of the Lincoln-Lancaster whose disclosure is restricted by statute. SIP revision been met? County Health Department (LLCHD). Certain other material, such as III. The EPA’s Response to Comments

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IV. What action is the EPA taking? removes a redundant regulation from • Is not an Executive Order 13771 (82 V. Incorporation by Reference the SIP and will have no effect on air FR 9339, February 2, 2017) regulatory VI. Statutory and Executive Order Reviews permitting or air quality in Lancaster action because SIP approvals are I. What is being addressed in this County, Nebraska. exempted under Executive Order 12866. • document? Does not impose an information Comment 2 collection burden under the provisions The EPA is approving a revision to This comment noted that the State of the Paperwork Reduction Act (44 Nebraska’s SIP received from the State submission was not provided in the U.S.C. 3501 et seq.); of Nebraska on July 23, 2019. docket to allow the reviewer the ability • Is certified as not having a Specifically, the EPA is amending the to fully evaluate EPA’s proposed action. significant economic impact on a Nebraska SIP by removing a portion of substantial number of small entities the SIP as follows: Article 2. Section 19. Response 2 under the Regulatory Flexibility Act (5 Prevention of Significant Deterioration As a result of this comment, we U.S.C. 601 et seq.); • of Air Quality (PSD) Lincoln-Lancaster provided the State’s submission in the Does not contain any unfunded County Health Department (LLCHD). docket and reopened the public mandate or significantly or uniquely II. Have the requirements for approval comment period from March 5, 2020 to affect small governments, as described of a SIP revision been met? April 6, 2020 to afford stakeholders an in the Unfunded Mandates Reform Act opportunity to comment on the of 1995 (Pub. L. 104–4); The State submission has met the • proposed SIP revision (85 FR 12876, Does not have federalism public notice requirements for SIP March 5, 2020). No additional implications as specified in Executive submissions in accordance with 40 CFR comments were received during this Order 13132 (64 FR 43255, August 10, 51.102. The submission also satisfied period. 1999); the completeness criteria of 40 CFR part • Is not an economically significant 51, appendix V. The State provided a IV. What action is the EPA taking? regulatory action based on health or public comment period for this SIP safety risks subject to Executive Order The EPA is taking final action to revision from May 20, 2019 to June 21, 13045 (62 FR 19885, April 23, 1997); amend the Nebraska SIP by removing 2019, and at the same time, offered an • Is not a significant regulatory action LLCHD Article 2. Section 19. Prevention opportunity for a public hearing. No subject to Executive Order 13211 (66 FR of Significant Deterioration of Air comments or request for public hearing 28355, May 22, 2001); were received. Quality (PSD). The removal of this • Is not subject to requirements of the portion of the SIP will not impact air National Technology Transfer and III. The EPA’s Response to Comments quality because the regulation Advancement Act (NTTA) because this The public comment period on the duplicates the State’s regulation, which rulemaking does not involve technical EPA’s proposed rule opened January 3, applies in the same jurisdiction. standards; and 2020, the date of its publication in the V. Incorporation by Reference • Does not provide EPA with the Federal Register and closed on February discretionary authority to address, as 3, 2020. (85 FR 274, January 3, 2020.) In this document, the EPA is appropriate, disproportionate human During this period, EPA received two amending regulatory text that includes health or environmental effects, using comments. The comments are not incorporation by reference. As described practicable and legally permissible adverse and can be found in the docket. in the amendments to 40 CFR part 52 set methods, under Executive Order 12898 The comments are addressed below. forth below, the EPA is removing (59 FR 7629, February 16, 1994). provisions of the EPA-Approved In addition, the SIP is not approved Comment 1 Nebraska Regulations from the Nebraska to apply on any Indian reservation land I believe that it would be in the State Implementation Plan, which is or in any other area where the EPA or public’s best interest to eliminate the incorporated by reference in accordance an Indian tribe has demonstrated that a confusion regarding the permits in with the requirements of 1 CFR part 51. tribe has jurisdiction. In those areas of Lancaster County, and have the local VI. Statutory and Executive Order Indian country, the rule does not have authorities be responsible for issuing the Reviews tribal implications and will not impose permits. substantial direct costs on tribal Under the Clean Air Act (CAA), the governments or preempt tribal law as Response 1 Administrator is required to approve a specified by Executive Order 13175 (65 This action eliminates confusion SIP submission that complies with the FR 67249, November 9, 2000). regarding the authority to issue PSD provisions of the CAA and applicable The Congressional Review Act, 5 permits in Lancaster County. As noted Federal regulations. 42 U.S.C. 7410(k); U.S.C. 801 et seq., as added by the Small in the proposal, all PSD permits issued 40 CFR 52.02(a). Thus, in reviewing SIP Business Regulatory Enforcement in the State of Nebraska, including those submissions, EPA’s role is to approve Fairness Act of 1996, generally provides issued in Lancaster County, are issued state choices, provided that they meet that before a rule may take effect, the pursuant to the authority of the State of the criteria of the CAA. Accordingly, agency promulgating the rule must Nebraska under title 129, chapter 19 this action merely approves state law as submit a rule report, which includes a PREVENTION OF SIGNIFICANT meeting Federal requirements and does copy of the rule, to each House of the DETERIORATION OF AIR QUALITY not impose additional requirements Congress and to the Comptroller General (PSD). However, under the delegation beyond those imposed by state law. For of the United States. EPA will submit a agreement between the State of that reason, this action: report containing this action and other Nebraska and LLCHD, LLCHD issues • Is not a significant regulatory action required information to the U.S. Senate, PSD permits in Lancaster County under subject to review by the Office of the U.S. House of Representatives, and the state’s authority. Nothing in this Management and Budget under the Comptroller General of the United action changes this delegation Executive Orders 12866 (58 FR 51735, States prior to publication of the rule in agreement, which is included in the October 4, 1993) and 13563 (76 FR 3821, the Federal Register. A major rule docket for this action. The SIP revision January 21, 2011); cannot take effect until 60 days after it

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is published in the Federal Register. approve the removal of Nebraska program. Title V permits include all This action is not a ‘‘major rule’’ as Administrative Code title 129, chapter SIP-approved permit terms, but do not defined by 5 U.S.C. 804(2). 8, section 007.06 from Nebraska’s State supersede, void, replace or otherwise Under section 307(b)(1) of the Clean Implementation Plan (SIP) and title V eliminate their legal existence and Air Act CAA, petitions for judicial provisions. Nebraska submitted this enforceability. This removal of this review of this action must be filed in the revision to the EPA on July 19, 2019. provision confirms that construction United States Court of Appeals for the Title 129, chapter 8 contains Nebraska’s permits are not vacated when an appropriate circuit by July 14, 2020. operating permit program and is operating permit is issued. Removal of Filing a petition for reconsideration by approved under title V and EPA’s this provision is appropriate, consistent the Administrator of this final rule does regulations. The EPA’s approval of this with Federal regulations and not affect the finality of this action for action makes the State rule consistent strengthens both the title V program and the purposes of judicial review nor does with Federal regulations and the SIP. The EPA is taking final action it extend the time within which a strengthens the SIP and the title V for approval of this revision. petition for judicial review may be filed, program. and shall not postpone the effectiveness II. Have the requirements for approval DATES: This final rule is effective on of such rule or action. This action may of a SIP revision been met? June 15, 2020. not be challenged later in proceedings to The State submission has met the ADDRESSES: enforce its requirements. (See section The EPA has established a public notice requirements for SIP 307(b)(2)). docket for this action under Docket ID submissions in accordance with 40 CFR No. EPA–R07–OAR–2020–0036. All List of Subjects in 40 CFR Part 52 51.102. The submission also satisfied documents in the docket are listed on the completeness criteria of 40 CFR part Environmental protection, Air the https://www.regulations.gov 51, appendix V. The State provided pollution control, Incorporation by website. Although listed in the index, public notice on this SIP revision from reference, Intergovernmental relations. some information is not publicly February 28, 2019 to April 3, 2019 and available, i.e., CBI or other information Dated: April 21, 2020. received one comment from EPA on whose disclosure is restricted by statute. James Gulliford, March 5, 2019, supporting the revision. Certain other material, such as In addition, as explained above the Regional Administrator, Region 7. copyrighted material, is not placed on For the reasons stated in the revision meets the substantive SIP the internet and will be publicly requirements of the Clean Air Act preamble, the EPA amends 40 CFR part available only in hard copy form. 52 as set forth below: (CAA), including section 110 and Publicly available docket materials are implementing regulations. available through https:// PART 52—APPROVAL AND www.regulations.gov or please contact III. The EPA’s Response to Comments PROMULGATION OF the person identified in the FOR FURTHER The public comment period on the IMPLEMENTATION PLANS INFORMATION CONTACT section for EPA’s proposed rule opened February additional information. ■ 1. The authority citation for part 52 13, 2020, the date of its publication in continues to read as follows: FOR FURTHER INFORMATION CONTACT: the Federal Register and closed on Lachala Kemp, Environmental Authority: 42 U.S.C. 7401 et seq. March 16, 2020 (85 FR 8240, February Protection Agency, Region 7 Office, Air 13, 2020). During this period, EPA Subpart—CC Nebraska Quality Planning Branch, 11201 Renner received one comment. The comment Boulevard, Lenexa, Kansas 66219; was not substantive or adverse and can § 52.1420 [Amended] telephone number (913) 551–7214; be found in the docket. ■ 2. In § 52.1420, the table in paragraph email address [email protected]. (c) is amended by removing the entry SUPPLEMENTARY INFORMATION: IV. What action is the EPA taking? ‘‘Section 19’’ under the headings Throughout this document ‘‘we,’’ ‘‘us,’’ EPA is taking final action to approve ‘‘Lincoln-Lancaster County Air and ‘‘our’’ refer to EPA. the removal of title 129, chapter 8, Pollution Control Program’’, ‘‘Article Table of Contents section 007.06 from the Nebraska title V 2—Regulations and Standards’’. program and SIP because it is [FR Doc. 2020–08760 Filed 5–14–20; 8:45 am] I. What is being addressed in this document? inconsistent with EPA’s interpretation II. Have the requirements for approval of a BILLING CODE 6560–50–P of the title V program. SIP revision been met? III. The EPA’s Response to Comments V. Incorporation by Reference IV. What action is the EPA taking? ENVIRONMENTAL PROTECTION V. Incorporation by Reference In this document, the EPA is AGENCY VI. Statutory and Executive Order Reviews finalizing regulatory text that includes incorporation by reference. In 40 CFR Parts 52 and 70 I. What is being addressed in this accordance with requirements of 1 CFR [EPA–R07–OAR–2020–0036; FRL–10008– document? 51.5, the EPA is finalizing the 54-Region 7] The EPA is taking final action to incorporation by reference of the approve the removal of title 129, chapter Nebraska Regulations described in the Air Plan Approval; Nebraska; Approval 8, section 007.06 from the Nebraska amendments to 40 CFR part 52 set forth of State Implementation Plan and Administrative Code of the previously below. The EPA has made, and will Operating Permits Program approved SIP. Section 007.06 stated that continue to make, these materials AGENCY: Environmental Protection permits used under title 129 chapter 8 generally available through Agency (EPA). superseded all other previously issued www.regulations.gov and at the EPA ACTION: Final rule. operating or construction permits. This Region 7 Office (please contact the section, which was previously approved person identified in the FOR FURTHER SUMMARY: The Environmental Protection in Nebraska’s SIP, is inconsistent with INFORMATION CONTACT section of this Agency (EPA) is taking final action to the EPA’s interpretation of the title V preamble for more information).

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Therefore, these materials have been • Is certified as not having a specified by Executive Order 13175 (65 approved by the EPA for inclusion in significant economic impact on a FR 67249, November 9, 2000). the State Implementation Plan, have substantial number of small entities List of Subjects been incorporated by reference by EPA under the Regulatory Flexibility Act (5 into that plan, are fully federally U.S.C. 601 et seq.); 40 CFR Part 52 • Does not contain any unfunded enforceable under sections 110 and 113 Environmental protection, Air mandate or significantly or uniquely of the CAA as of the effective date of the pollution control, Incorporation by affect small governments, as described final rulemaking of the EPA’s approval, reference, Intergovernmental relations, in the Unfunded Mandates Reform Act and will be incorporated by reference in Reporting and recordkeeping 1 of 1995 (Public Law 104–4); the next update to the SIP compilation. requirements. • Does not have federalism VI. Statutory and Executive Order implications as specified in Executive 40 CFR Part 70 Reviews Order 13132 (64 FR 43255, August 10, Environmental protection, 1999); Under the CAA, the Administrator is Administrative practice and procedure, • Is not an economically significant required to approve a SIP submission Air pollution control, Intergovernmental regulatory action based on health or that complies with the provisions of the relations, Operating permits, Reporting safety risks subject to Executive Order Act and applicable Federal regulations. and recordkeeping requirements. 13045 (62 FR 19885, April 23, 1997); 42 U.S.C. 7410(k); 40 CFR 52.02(a). • Thus, in reviewing SIP submissions, the Is not a significant regulatory action Dated: April 20, 2020. EPA’s role is to approve state choices, subject to Executive Order 13211 (66 FR James Gulliford, provided that they meet the criteria of 28355, May 22, 2001); Regional Administrator, Region 7. • Is not subject to requirements of the the CAA. Accordingly, this action For the reasons stated in the merely approves state law as meeting National Technology Transfer and Advancement Act (NTTA) because this preamble, the EPA amends 40 CFR parts Federal requirements and does not 52 and 70 as set forth below: impose additional requirements beyond rulemaking does not involve technical standards; and those imposed by state law. For that • PART 52—APPROVAL AND reason, this action: Does not provide EPA with the PROMULGATION OF • discretionary authority to address, as IMPLEMENTATION PLANS Is not a significant regulatory action appropriate, disproportionate human subject to review by the Office of health or environmental effects, using ■ Management and Budget under 1. The authority citation for part 52 practicable and legally permissible continues to read as follows: Executive Orders 12866 (58 FR 51735, methods, under Executive Order 12898 October 4, 1993) and 13563 (76 FR 3821, (59 FR 7629, February 16, 1994). Authority: 42 U.S.C. 7401 et seq. January 21, 2011); The SIP is not approved to apply on Subpart—CC Nebraska • Is not an Executive Order 13771 (82 any Indian reservation land or in any FR 9339, February 2, 2017) regulatory other area where EPA or an Indian tribe ■ 2. In § 52.1420, the table in paragraph action because SIP approvals are has demonstrated that a tribe has (c) is amended by revising the entry exempted under Executive Order 12866. jurisdiction. In those areas of Indian ‘‘129–8’’ to read as follows: • Does not impose an information country, the rule does not have tribal collection burden under the provisions implications and will not impose § 52.1420 Identification of plan. of the Paperwork Reduction Act (44 substantial direct costs on tribal * * * * * U.S.C. 3501 et seq.); governments or preempt tribal law as (c)* * *

EPA-APPROVED NEBRASKA REGULATIONS

State effective Nebraska citation Title date EPA approval date Explanation

STATE OF NEBRASKA

Department of Environmental Quality

Title 129—Nebraska Air Quality Regulations

******* 129–8 ...... Operating Permit Content ...... 6/24/2019 5/15/2020, [insert Federal Register citation].

*******

* * * * * PART 70—STATE OPERATING PERMIT ■ 4. Appendix A to part 70 is amended PROGRAMS by adding paragraph (q) under ‘‘Nebraska; City of Omaha; Lincoln- ■ 3. The authority citation for part 70 Lancaster County Health Department’’ continues to read as follows: to read as follows: Authority: 42 U.S.C. 7401, et seq.

1 62 FR 27968 (May 22, 1997).

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Appendix A to Part 70—Approval Environmental Protection Agency, Register notices. Thus, EPA should Status of State and Local Operating Region 5, Air and Radiation Division, 77 publish a supplemental proposal that Permits Programs West Jackson Boulevard, Chicago, includes the 2016 ambient monitoring * * * * * Illinois 60604. This facility is open from data which was final by no later than Nebraska; City of Omaha; Lincoln- 8:30 a.m. to 4:30 p.m., Monday through May 1, 2017.’’ Lancaster County Health Department Friday, excluding Federal holidays and EPA Response: Indiana submitted its redesignation request to EPA on April * * * * * facility closures due to COVID–19. We (q) The Nebraska Department of recommend that you telephone Mary 14, 2016. The State included Muncie Environment and Energy submitted revisions Portanova at (312) 353–5954 before lead monitoring data from 2013–2015 in to NDEQ Title 129 Chapter 8 ‘‘Operating visiting the Region 5 office. its submittal. At the time of Indiana’s Permit Content’’ on July 19, 2019. The State FOR FURTHER INFORMATION CONTACT: submittal, these data represented the effective date is June 24, 2019. The revision Mary Portanova, Environmental most recent available full three years of effective date is June 15, 2020. Engineer, Control Strategies Section, Air monitoring data, and EPA used them in * * * * * Programs Branch (AR–18J), evaluating Indiana’s redesignation [FR Doc. 2020–08654 Filed 5–14–20; 8:45 am] Environmental Protection Agency, request. BILLING CODE 6560–50–P Region 5, 77 West Jackson Boulevard, Indiana is required to certify and Chicago, Illinois 60604, (312) 353–5954, submit to EPA each year of air quality [email protected]. monitoring data by May 1 of the ENVIRONMENTAL PROTECTION SUPPLEMENTARY INFORMATION: following year. For 2016 data, the AGENCY Throughout this document whenever deadline for state certification was May 1, 2017. The Regional Administrator 40 CFR Parts 52 and 81 ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean EPA. This supplementary information signed the proposal to redesignate the [EPA–R05–OAR–2016–0137; FRL–10008– section is arranged as follows: Muncie area on May 4, 2017. During the 15–Region 5] time that EPA staff were reviewing I. What is being addressed by this document? Indiana’s submittal and preparing the Designation of Areas for Air Quality II. What comments did we receive on the notice of proposed rulemaking, proposed action and what are EPA’s Planning Purposes; Indiana; responses to those comments? monitoring data for 2016 was not yet Redesignation of the Muncie, Indiana III. What action is EPA taking? certified, and the ‘‘most recent’’ fully Lead Nonattainment Area IV. Statutory and Executive Order Reviews certified data during this time was the data through 2015, which showed AGENCY: Environmental Protection I. What is being addressed by this attainment of the 2008 lead NAAQS. Agency (EPA). document? The 2008 lead NAAQS are met when ACTION: Final rule. On May 30, 2017 (82 FR 24553), EPA the maximum arithmetic three-month issued a direct final approval and mean concentration for a three-year SUMMARY: The Environmental Protection associated proposed rulemaking (82 FR Agency (EPA) is approving the April 14, period is less than or equal to 0.15 24635) addressing Indiana’s April 14, micrograms per cubic meter (mg/m3 2016, request from the Indiana ). 2016 submittal of a redesignation See 40 CFR 50.16. The maximum three- Department of Environmental request, maintenance plan, and month average lead concentration over Management (IDEM) to redesignate the attainment year lead emissions three years is also known as the design Muncie nonattainment area to inventory for the Muncie lead value. Although the 2016 data was attainment for the 2008 national nonattainment area. The main source of certified a few days before EPA’s notice ambient air quality standards (NAAQS) lead emissions in the Muncie area is the of proposed rulemaking was signed, the for lead. EPA is also approving the Exide Technologies secondary lead 2015 monitor data was clearly the most State’s maintenance plan and smelter. See the direct final action for recent certified, quality-assured data attainment year emission inventory for the full discussion of our basis for available at the time of the State’s lead. EPA is approving these actions in approval. Because we received adverse redesignation request and during EPA’s accordance with the Clean Air Act comments on the direct final approval, review process, and the 2013–2015 (CAA) and EPA’s implementation we withdrew the direct final approval design value was the appropriate regulations and guidance regarding the on July 10, 2017 (82 FR 31722). Below, measure for evaluating the State’s 2008 lead NAAQS. we address the comments that we redesignation request and proposing DATES: This final rule is effective on received, and finalize our proposed action. As the preliminary 2016 data May 15, 2020. rulemaking action. continued to show attainment of the ADDRESSES: EPA has established a 2008 lead NAAQS, EPA did not delay docket for this action under Docket ID II. What comments did we receive on its action on the redesignation. No. EPA–R05–OAR–2016–0137. All the proposed action and what are EPA’s Moreover, air quality monitoring data documents in the docket are listed on responses to those comments? at the Muncie lead monitor continues to the www.regulations.gov website. EPA received a set of comments from show that the area is attaining the 2008 Although listed in the index, some one party during the public comment lead NAAQS, providing further support information is not publicly available, period on the May 30, 2017 action. The for EPA’s finding that the area has i.e., Confidential Business Information comments, and EPA’s response to each attained the NAAQS under CAA section (CBI) or other information whose comment, are as follows: 107(d)(3)(E)(i). Table 1 below includes disclosure is restricted by statute. Comment: The commenter stated that all fully certified and preliminary data Certain other material, such as the proposal ‘‘incorrectly states that the available for the area and shows that the copyrighted material, is not placed on 2015 ambient monitoring data is the area’s lead design value is well below the internet and will be publicly most recent available. That is not true the level of the NAAQS. available only in hard copy form. and it wasn’t even true when the Acting EPA does not agree that a Publicly available docket materials are Regional Administrator signed the rule. supplemental proposal is required available either through EPA has a legal and moral obligation to under these circumstances. The CAA www.regulations.gov or at the not provide false information in Federal contemplates that EPA publish a

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proposed and final rule in order to attaining, EPA has disapproved 96–4274, 1998 U.S. App. LEXIS 21686, effectuate redesignations. CAA section redesignations. See Southwestern Pa. at *11–12 (6th Cir. Sept. 2, 1998) 107(d)(2). It is not reasonable to require Growth Alliance v. Browner, 121 F.3d (affirming EPA’s disapproval of a additional supplemental proposals 106 (3rd Cir. 1997) (upholding EPA’s redesignation and finding that ‘‘[a]s the every time additional data becomes disapproval of a redesignation and EPA interprets the CAA, the CAA available, given that new preliminary stating in dicta, ‘‘The use of the term requires the EPA to determine and certified data are continually ‘‘has attained’’ . . . may be interpreted attainment based on all data available at updated, nor is it necessary. Where an as suggesting that the attainment must the time the EPA issues its ruling.’’). area has violated the NAAQS such that continue until the date of the EPA can no longer find that the area is redesignation.’’); Kentucky v. EPA, No. TABLE 1—THREE-MONTH ROLLING LEAD AVERAGES AND DESIGN VALUES FOR MUNCIE, INDIANA [2012–2019]

Three-Month Rolling Lead Averages (μg/m3) for Muncie-Mt. Pleasant Blvd. (18–035–0009) Three-Year Design Values

2012

Nov 2011–Jan 2012 Dec 2011–Feb 2012 Jan– Feb– Mar– Apr– May– Jun– Jul– Aug– Sep– Oct– 3-Year Design Value Mar Apr May Jun Jul Aug Sep Oct Nov Dec Period (years)

0.30 0.34 0.29 0.17 0.12 0.11 0.09 0.05 0.06 0.05 0.05 0.05 DV (μg/m3)

2013

Nov 2012–Jan 2013 Dec 2012–Feb 2013 Jan– Feb– Mar– Apr– May– Jun– Jul– Aug– Sep– Oct– Mar Apr May Jun Jul Aug Sep Oct Nov Dec

0.05 0.06 0.04 0.03 0.03 0.03 0.03 0.04 0.04 0.05 0.04 0.04

2014

Nov 2013–Jan 2014 Dec 2013–Feb 2014 Jan– Feb– Mar– Apr– May– Jun– Jul– Aug– Sep– Oct– 2012–2014 Mar Apr May Jun Jul Aug Sep Oct Nov Dec

0.03 0.04 0.04 0.04 0.04 0.05 0.05 0.04 0.03 0.03 0.03 0.03 0.34

2015

Nov 2014–Jan 2015 Dec 2014–Feb 2015 Jan– Feb– Mar– Apr– May– Jun– Jul– Aug– Sep– Oct– 2013–2015 Mar Apr May Jun Jul Aug Sep Oct Nov Dec

0.03 0.03 0.04 0.05 0.06 0.06 0.06 0.05 0.03 0.04 0.04 0.11 0.11

2016

Nov 2015–Jan 2016 Dec 2015–Feb 2016 Jan– Feb– Mar– Apr– May– Jun– Jul– Aug– Sep– Oct– 2014–2016 Mar Apr May Jun Jul Aug Sep Oct Nov Dec

0.11 0.10 0.03 0.02 0.03 0.03 0.03 0.03 0.03 0.03 0.03 0.03 0.11

2017

Nov 2016–Jan 2017 Dec 2016–Feb 2017 Jan– Feb– Mar– Apr– May– Jun– Jul– Aug– Sep– Oct– 2015–2017 Mar Apr May Jun Jul Aug Sep Oct Nov Dec

0.03 0.03 0.02 0.02 0.03 0.03 0.04 0.04 0.03 0.04 0.03 0.04 0.11

2018

Nov 2017–Jan 2018 Dec 2017–Feb 2018 Jan– Feb– Mar– Apr– May– Jun– Jul– Aug– Sep– Oct– 2016–2018 Mar Apr May Jun Jul Aug Sep Oct Nov Dec

0.03 0.03 0.01 0.01 0.02 0.02 0.02 0.01 0.01 0.02 0.02 0.02 0.11

2019

Not yet certified Nov 2018–Jan 2019 Dec 2018–Feb 2019 Jan– Feb– Mar– Apr– May– Jun– Jul– Aug– Sep– Oct– 1 2017–2019 Mar Apr May Jun Jul Aug Sep Oct Nov Dec

0.02 0.02 0.02 0.02 0.02 0.03 0.03 0.03 0.03 0.03 0.02 0.02 0.04 1 Maximum 3-month value through December 2019; not a valid DV until certified.

Comment: The commenter stated that secondary lead smelters applies to Exide EPA Response: To meet criterion 3, EPA has not met criterion 3 of the Technologies does not establish that the the EPA Administrator must determine redesignation requirements. The fact implementation of the NESHAP caused that the improvement in air quality is that the National Emission Standards for the area to come into attainment. due to permanent and enforceable Hazardous Air Pollutants (NESHAP) for emission reductions resulting from

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implementation of the applicable SIP, Muncie’s ambient lead concentrations affirmative defense to civil penalty Federal air pollution control began to improve in mid-2012, although claims for exceedances caused by a regulations, or other permanent and its three-year design value still showed narrow category of malfunctions.2 See 40 enforceable emission reductions. The nonattainment of the 2008 lead NAAQS CFR 63.552. For two reasons, this Exide Technologies facility is subject to for 2012–2014. The highest three-month narrowly crafted affirmative defense the NESHAP as well as to lead emission average lead monitor reading in Muncie provision is no barrier to redesignation. limits and control requirements in the after its nonattainment designation was First, this affirmative defense does not federally approved Indiana SIP, which for December 2011–February 2012 (0.34 legally or functionally ‘‘exempt’’ are permanent and enforceable at all mg/m3). Since that time, the three-month covered sources from any emission times. The Indiana SIP limits on rolling average values at the Muncie standards because even with the emissions units at Exide Technologies monitor dropped rapidly, with no affirmative defense provision, any and the requirements for total plant further three-month rolling averages exceedance of the emission standard at enclosure and control of fugitive dust exceeding the level of the 2008 lead any time is still a violation. The emissions at Exide are contained in 326 NAAQS recorded at the site after the provision is expressly ‘‘not available for Indiana Administrative Code (IAC) 20– February–April 2012 (0.17 mg/m3) claims for injunctive relief.’’ Id. 13.1. EPA approved 326 IAC 20–13.1 1 averaging period. The Muncie area Accordingly, even for that narrow into the Indiana SIP on July 17, 2015 (80 reached full attainment of the 2008 lead category of malfunction-caused FR 42393). Therefore, EPA finds that the NAAQS as of the 2013–2015 design exceedances, any exceedance is a Indiana SIP contains permanent and value period. The area has continued to violation of the emission standard and enforceable limits for Exide attain the 2008 lead NAAQS for three the NESHAP can be enforced through Technologies in Muncie. more years, through the 2016–2018 suits for injunctive relief by states, EPA, Indiana has been working to reduce design value period. Preliminary 2019 and affected citizens. See, e.g., 42 U.S.C. ambient lead concentrations in Muncie data also suggest that the area is still 7604(a)(1), (f)(3). With respect to lead over many years. Lead emission control attaining the 2008 lead NAAQS. See emissions in Muncie, the ready measures were implemented at Exide Table 1. EPA is satisfied that the availability of this injunctive relief Technologies over time, both before and imposition of the NESHAP and SIP ensures that the state and Federal after the current NESHAP was emission control requirements for Exide regulators, as well as the public, can implemented. The Muncie area was Technologies, with full compliance effectively enforce the NESHAP at Exide designated nonattainment for the 2008 facilitated by Exide Technologies’ Technologies. This approach is lead NAAQS on November 22, 2010 (75 recently improved housekeeping consistent with other EPA FR 71033). The NESHAP for secondary measures and operating procedures, redesignations. See, e.g., 79 FR 55645, lead smelters was amended on January was, in fact, responsible for the 55649 (September 17, 2014) (affirmative 5, 2012 (77 FR 556). At that time, Exide reduction in lead emissions and the defense in SIP provision was Technologies was already complying improvement in Muncie’s monitored ‘‘sufficiently enforceable for purposes of with the previous version of the lead concentrations since the Muncie redesignation’’ because of, inter alia, the NESHAP. Indiana’s SIP rule 326 IAC lead nonattainment designation. ‘‘continued availability of injunctive 20–13.1 contains lead emission Comment: The commenter stated that relief’’). standards for some emission units to the extent that the NESHAP for Second, regardless of the permanent which are more stringent than those in secondary lead smelting ‘‘does not and enforceable reductions pursuant to apply during startup, shutdown, and/or the NESHAP. Exide was required to the lead NESHAP, Indiana’s approved malfunction,’’ the Exide Technologies comply with the SIP limits by October lead SIP contains additional provisions facility is not subject to any enforceable 1, 2013. Indiana informed EPA that applicable to the Exide Technologies emission limits during startup, some of the physical controls required facility. Although some of these shutdown, and/or malfunction, and in the 2012 NESHAP were already in provisions are based on the NESHAP for accordingly, criterion 3 is not met. place at Exide Technologies before secondary lead smelters, these approved EPA Response: The commenter is SIP rules do not include any exemptions 2012. Indiana also confirmed that, incorrect that the lead standard ‘‘does following inspections in 2012 by IDEM or affirmative defense provisions for not apply’’ during those periods of lead or any other pollutants. Pertinent to and EPA staff, multiple housekeeping startup, shutdown, or malfunction adjustments were made at the plant after the issue of startup, shutdown, and (SSM). The NESHAP for secondary lead malfunction, the Indiana SIP rule for the nonattainment designation, which smelters does not contain exemptions improved the facility’s ability to control secondary lead smelters states at 326 from emission limits for lead during IAC 20–13.1–1(f), ‘‘Emission standards its fugitive lead emissions and helped to SSM; the existing exemptions in the bring the facility operations into full in this rule apply at all times.’’ NESHAP apply only to emissions of Additionally, 326 IAC 20–13.1–5(h) compliance with the NESHAP and the dioxins and furans. Compare, e.g., 40 SIP emission limits. For example, Exide requires, ‘‘At all times, the owner or CFR 63.543(a)–(b) (lead standards for operator of a secondary lead smelter Technologies revised its procedures for process vents), with id. § 63.543(c) servicing baghouse control devices to shall operate and maintain any affected (furan and dioxin standards for process emission unit, including associated air avoid allowing fugitive material to vents). Accordingly, for purposes of the escape the enclosed space; located and pollution control equipment and Muncie area’s attainment of the 2008 monitoring equipment, in a manner sealed gaps and areas of leakage in the lead NAAQS, the permanent and enclosed buildings; and installed or consistent with safety and good air enforceable measure within the pollution control practices for upgraded monitors for measuring the secondary lead smelter NESHAP negative pressure inside the facility. minimizing emissions.’’ Although, as a contributing to that attainment applies matter of State law, Indiana’s rule 326 at all times. IAC 20–13.1–15 contains affirmative 1 EPA’s July 17, 2015 approval excluded certain The NESHAP for secondary lead sections of 326 IAC 20–13.1–1, 20–13.1–5, 20–13.1– 10, 20–13.1–11, 20–13.1–12, 20–13.1–13, 20–13.1– smelters presently contains a provision 2 As a legal matter, this narrowly crafted 14; and all of 326 IAC 20–13.1–15. See 40 CFR that purports to allow a source, in affirmative defense does not ‘‘exempt’’ sources in 52.770(c). limited circumstances, to assert an Muncie or elsewhere from the NESHAP.

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defense language for malfunctions 2015. An elevated air quality monitor value over three years as the design similar to that of the NESHAP, the value was recorded at the Muncie site value, the design values for 2013–2015, provision is not part of Indiana’s on December 14, 2015. Exide 2014–2016, and 2016–2018 were all approved, federally enforceable lead Technologies told IDEM that on that 0.11 mg/m3, since those three-year SIP. See 80 FR 42393, 42394 (July 17, date, errors occurring while replacing averaging periods all included the three- 2015) (noting that Indiana expressly bags in the baghouse caused eight bags month average of 0.11 mg/m3 for asked EPA not to approve 326 IAC 20– to fall off when the unit undertook its October–December 2015 and/or 13.1–15 into the lead SIP); 40 CFR routine mechanical action to remove the November 2015-January 2016. 52.770(c) (identifying EPA-approved sediment which had deposited on the The monitoring data demonstrate an rules). Therefore, regardless of the bags. After the bags were properly overall pattern that strongly supports a enforceability of the lead NESHAP, EPA reinstalled, subsequent monitor redesignation to attainment. The is satisfied that Indiana’s federally readings improved. EPA reiterates that Muncie lead three-month average enforceable lead SIP requirements for Muncie’s monitored design value for concentrations have typically ranged Exide Technologies do not contain any 2013–2015 (which represents the from 0.01 mg/m3 to 0.06 mg/m3 from exemptions for emissions during SSM, highest single three-month average June–August 2012 through the present. despite the commenter’s allegations. concentration over the three-year The only higher three-month averages Comment: The commenter stated that period) was below the NAAQS of 0.15 were the October–December 2015 three- the ambient monitoring values are not mg/m3. The December 2015 incident at month average value cited by the consistent with a conclusion that the Exide Technologies’ baghouse did not commenter, and the two three-month NESHAP caused the area to attain. cause or contribute to any violation of average values following it, but these Specifically, the commenter stated, ‘‘All the 2008 lead NAAQS. EPA is satisfied have been shown to be caused by a of the values for 2013–2015 are below that Exide Technologies’ compliance single month’s short-lived emission 0.06 except in the last quarter, the value with its lead SIP requirements, which increase. As shown in Table 1, the almost doubles to 0.11. This seems to include proper operation of control remaining 74 certified three-month indicate that something else was technologies, will ensure that monitored average values since June–August 2012 3 happening during all of the quarters air quality in Muncie will remain below have been no higher than 0.06 mg/m . except the last quarter. Was the Exides the 2008 lead NAAQS. Considering preliminary monitoring [sic] plant even operating at full data for 2019, the maximum three- The commenter was concerned that capacity during all of the quarters month average lead concentration value except last quarter of 2015? If so, was EPA could be overlooking an upward from 2017–2019 (specifically, beginning the plant voluntarily operating in a emissions trend after concentrations with the three-month average for manner to keep the ambient values low? appeared to rise at the end of 2015. November 2016 to January 2017 and By voluntarily, I mean operating in a More monitoring data for Muncie has continuing through October–December manner not required by the NESHAP. become available since EPA’s proposal. of 2019) appears likely to be as low as Without an answer to these questions, See Table 1. Considering only the data 0.04 mg/m3. EPA is satisfied that the EPA cannot conclude that the NESHAP through 2015, it might appear that the Muncie lead monitoring data suggest caused the area to come into lead emissions in Muncie had been low that the December 2015 incident does compliance.’’ The commenter further but suddenly climbed at the end of not represent a return to pre-2012 stated that the 2016 monitoring data, 2015. However, EPA believes that the ambient lead concentrations. Instead, with a three-month maximum high of three-month average concentration of the data indicate that the area is 3 0.11 mg/m3, ‘‘once again establishes that 0.11 mg/m for October–December 2015 attaining the 2008 lead NAAQS. something other than the NESHAP did not demonstrate a return to The commenter speculates that the caused the 2013–2015 values to be so routinely high emissions that could lead Muncie area’s monitored attainment low. Furthermore, the fact that the First to violations of the 2008 lead NAAQS, may be due to the Exide facility’s Max and Second Max on Monitor 3 was nor does it call into question EPA’s voluntary operation in a manner that above the level of the NAAQS indicates conclusion that the permanent and reduces emissions, and that absent proof that rather than the NESHAP causing enforceable measures on the facilities at that the facility is not voluntarily attainment of the NAAQS, Indiana DEM issue are the cause of the area’s curtailing emissions, EPA cannot just got lucky do [sic] to some random attainment of the standard. The alleged conclude that the NESHAP is the cause factor like meteorology or the plant is baghouse incident in December 2015 of the area’s compliance. The operating in a manner to make apparently resulted in a monthly commenter also suggests that EPA voluntary reductions to above [sic] average concentration of 0.2519 mg/m3. should review all communications violating the NAAQS. EPA should also Although the monthly monitored lead between IDEM and Exide Technologies review communications between IDEM concentrations for the months in order to ensure there is no collusion and Exides [sic] to ensure that they are surrounding December 2015 were much to use voluntary curtailment of not working together to use voluntary lower, the three consecutive three- emissions to meet the NAAQS. Per measures to avoid the monitors’ month lead averages which included EPA’s longstanding guidance regarding detecting NAAQS exceedances.’’ December 2015 were calculated to be at redesignations to attainment, EPA EPA Response: EPA does not agree or near 0.11 mg/m3. The surrounding interprets CAA section 107(d)(3)(E)(iii) that the single three-month average single-month values were 0.0505 mg/m3 to require a showing that the state must cited by the commenter indicates that (October 2015) and 0.0347 mg/m3 be able to ‘‘reasonably attribute’’ the the area’s attainment of the NAAQS (November 2015), and 0.0319 mg/m3 improvement in air quality to emission cannot be the result of permanent and (January 2016) and 0.0233 mg/m3 reductions which are permanent and enforceable measures. The 2013–2015 (February 2016). The subsequent three- enforceable. Memorandum from John design value of 0.11 mg/m3 meets the month averages after the December Calcagni, ‘‘Procedures for Processing lead NAAQS of 0.15 mg/m3. However, as 2015–February 2016 period were all Requests to Redesignate Areas to the commenter pointed out, there much lower than 0.11 mg/m3. Because Attainment,’’ (Sept. 4, 1992) (‘‘Calcagni appeared to be a sudden rise in the the form of the 2008 lead NAAQS uses Memo’’), at 4. The record demonstrates three-month average value at the end of the maximum three-month average that the State has done so here. In its

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redesignation request and maintenance the NAAQS. For the 2008 lead NAAQS, the strength or direction of local plan submission, Indiana modeled the design value for an air quality dispersion of lead emissions, or the projected ambient lead concentrations monitor is defined as the maximum uptake of windblown surface sediments, for the Muncie area using allowable three-month mean concentration at that but these effects would be short-lived emission limits at the single source of monitor over three years. See 40 CFR and variable. The historical pattern of lead in the area, Exide Technologies. 50.16. An area’s design value is based monitored levels at Muncie is more See [Maintenance Plan at 21–22]. Given on the monitor in the area which indicative of emission reductions taking the State’s technical demonstration that records the highest design value over effect while daily variation continues to the area would continue to attain the the three-year period. Muncie has one occur as expected. The monthly and 2008 lead NAAQS if the source at issue regulatory air quality monitor for lead, three-month average monitored values were to emit at allowable levels, there the Mt. Pleasant Boulevard monitor, 18– have been less variable in recent years is no record support for commenter’s 035–0009. An area attains the 2008 lead than before 2013, which does not seem speculation that Muncie’s attainment is NAAQS if the area’s design value is to indicate that favorable weather due to Exide’s voluntary curtailment of equal to or below 0.15 mg/m3. The ‘‘first conditions have reduced monitored emissions (i.e., actual emissions that are max’’ and ‘‘second max’’ cited by the values more than recent emission below the level that would be permitted commenter do not indicate that the reductions have done. under the emission limits), rather than Muncie area is violating the 2008 lead Comment: EPA should also review the permanent and enforceable limits NAAQS. A more relevant value for data from monitors 1 and 2 at the for Exide Technologies and the NAAQS comparison, which can be Muncie monitoring location. Even if NESHAP cited by Indiana. EPA does not found in the Monitor Values Report, is these monitors’ data cannot be used for agree that given the record evidence, it the maximum three-month average criterion 1, they can be used to evaluate must prove the negative—that the area’s value for the year reported. The the other criteria. attainment was not caused by the maximum three-month average value at EPA Response: There is one lead emission limits imposed here. There is Muncie has been below the level of the monitor in Muncie (18–035–0009) that a single source in the Muncie area, NAAQS since 2013. is used for comparison to the lead emission limits were imposed on that As for the elevated single-day NAAQS. It is located at 2601 W Mt. source, those limits correlate with a monitored values cited by the Pleasant Boulevard. There is another measured and sustained drop in commenter, EPA notes that short-term monitor collocated with monitor 18– ambient lead concentrations (excepting ambient levels of lead can be affected by 035–0009, but it is only used to fill in short-term variations in lead emissions expected short-term variability), and the missing data at the main monitor. A from industrial sources, or local State has provided additional modeling third Muncie monitor, known as Exide meteorological conditions that can affect showing that even if emissions were to East (18–035–0008), is an industrial site the entrainment of nearby lead-bearing go up to permitted levels, the area monitor owned and operated by Exide dust or the strength or direction of the would still maintain the NAAQS. We Technologies and is not used for dispersion of industrial lead emissions therefore disagree that it is necessary to regulatory purposes. EPA has reviewed in the atmosphere. The State’s modeled review communications between the data from all three monitors. attainment demonstration also accounts Indiana and Exide Technologies before Although the data from the Exide East for the variety of meteorological we may draw the conclusion that CAA monitor and the Mt. Pleasant Boulevard section 107(d)(3)(E)(iii) has been conditions which can occur in the Muncie area, and the analysis has collocated monitor are not directly used satisfied. shown that at allowable emissions, the for NAAQS evaluation, EPA notes that The comment also cited the first and Muncie area will meet the 2008 lead for 2013 through 2018, the Exide East second maximum values of Monitor 3 as NAAQS. EPA does not find that the lead monitor and the collocated monitor evidence that something other than the occurrence of occasional elevated daily show three-month average values and NESHAP caused the area’s attainment of monitored values, which do not result three-year design values of similar the NAAQS. The May 30, 2017 direct in three-month averages above the 2008 magnitude to those of the Mt. Pleasant final/proposed action did not publish or lead NAAQS, indicate that this area Boulevard reporting monitor. Neither discuss first and second maximum should not be redesignated. monitor reported three-month average monitored values. The commenter did Regarding the comment that random values in that period which would not provide the monitor data reports outside factors such as weather may exceed the NAAQS. which formed the basis of these have played a role in the reduced Comment: The commenter stated that comments, but if the commenter’s data ambient concentrations evident at the in order to meet criterion 3 as well as source reports were similar to those monitor in recent years, the monitoring criterion 4, EPA must model the found in EPA’s air quality data website’s data do not appear to support that ambient levels of lead in all ambient air Monitor Values Report (https:// conclusion. The monitor has been in the locations using the maximum allowable www.epa.gov/outdoor-air-quality-data), same location for more than ten years emissions under the NESHAP. The then EPA notes that the Monitor Values and has measured ambient lead commenter suggested that it is Reports for lead for the individual concentrations both above and below extremely likely that such modeling will calendar years do show the first through the NAAQS during that interval. The show violations of the NAAQS and thus fourth maximum data points. These are pattern of ambient monitored levels of require EPA to disapprove the the four highest single-day monitored lead at the Muncie monitor since 2012 redesignation request and maintenance values at the site. These overall shows a distinct drop below the 2008 plan. maximum daily values are not intended lead NAAQS, and then remains EPA Response: The May 30, 2017 to be directly compared to the NAAQS. generally steady at or near that low action cited Indiana’s modeling Compliance with the 2008 lead NAAQS level. Three-month ambient lead levels analysis, included in the docket at EPA– is not determined by whether an area’s are not as sensitive to weather R05–OAR–2016–0137, which daily maximum concentrations exceed conditions as pollutants formed in the demonstrated that the maximum the level of the NAAQS, but rather by atmosphere such as ozone. Wind allowable federally enforceable whether an area’s design value meets variations or weather events may affect emission limits for Exide Technologies

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will provide for attainment of the Indiana has complied with CAA section effective on the date of publication of NAAQS. 107(d)(3)(E)(v), which requires Indiana these actions. Comment: The commenter stated that to have ‘‘met all requirements IV. Statutory and Executive Order as to redesignation criteria 1, 3, and 5, applicable to the area under section 110 Reviews EPA has determined that the Indiana of this title and part D of this SIP is defective because it allows subchapter.’’ Not every requirement in Under the CAA, redesignation of an emissions above emission limits during the CAA is ‘‘applicable’’ for purposes of area to attainment and the malfunctions even if those emissions determining whether a nonattainment accompanying approval of the cause violations of a NAAQS. In support area may be redesignated, per CAA maintenance plan under CAA section of this proposition, the commenter cites section 107(d)(3)(E)(v). The provision at 107(d)(3)(E) are actions that affect the the final notice for the SSM SIP Call at issue here does not apply to any lead status of the geographical area and do 80 FR 33840, 33966 (June 12, 2015). The sources in the Muncie area, and is not not impose any additional regulatory commenter asserts that, accordingly, ‘‘applicable’’ for purposes of evaluating requirements on sources beyond those EPA ‘‘cannot approve this redesignation Muncie’s request for redesignation. required by state law. A redesignation to until Indiana or EPA removes 326 Ind. attainment does not in and of itself Admin. Code 1–6–4(a) from the Indiana III. What action is EPA taking? impose any new requirements, but SIP.’’ EPA is redesignating the Muncie lead rather results in the application of EPA Response: Criteria 1, 3, and 5, nonattainment area to attainment of the requirements contained in the CAA for cited by the commenter, appear to refer 2008 lead NAAQS. The Muncie lead areas that have been redesignated to to CAA sections 107(d)(3)(E)(i), (iii), and nonattainment area in Delaware County, attainment. Moreover, the Administrator (v). The commenter also cites EPA’s Indiana, consists of a portion of the City is required to approve a SIP submission June 12, 2015 SSM SIP Call concerning of Muncie, Indiana, bounded to the that complies with the provisions of the how provisions in SIPs treat excess north by West 26th Street/Hines Road, CAA and applicable Federal regulations. emissions during periods of SSM (80 FR to the east by Cowan Road, to the south 42 U.S.C. 7410(k); 40 CFR 52.02(a). 33840). As the commenter stated, the by West Fuson Road, and to the west by Thus, in reviewing SIP submissions, Indiana SIP rule identified in the SIP a line running south from the eastern EPA’s role is to approve state choices, Call is 326 IAC 1–6–4(a), approved by edge of Victory Temple’s driveway to provided that they meet the criteria of EPA in 1984. That rule, however, South Hoyt Avenue and then along the CAA. Accordingly, this action applies only to non-major sources South Hoyt Avenue. EPA is also merely approves state law as meeting whose potential emissions are so small approving Indiana’s lead maintenance Federal requirements and does not that their sole permitting requirement is plan for the Muncie area and the 2013 impose additional requirements beyond either a registration permit or minor lead attainment year emission inventory those imposed by state law. For these source permit under 326 IAC 2–1–1 or for Muncie. reasons, this action: 326 IAC 2–1–4, respectively. It does not • Is not a significant regulatory action In accordance with 5 U.S.C. 553(d), apply to Exide Technologies, the source subject to review by the Office of EPA finds there is good cause for these that Indiana identified as the only Management and Budget under actions to become effective immediately contributor to ambient lead Executive Orders 12866 (58 FR 51735, upon publication. This is because a concentrations in Muncie. Exide October 4, 1993) and 13563 (76 FR 3821, delayed effective date is unnecessary Technologies has a major source January 21, 2011); due to the nature of a redesignation to operating permit issued by IDEM • Is not an Executive Order 13771 (82 attainment, which relieves the area from pursuant to rules approved by EPA FR 9339, February 2, 2017) regulatory certain CAA requirements that would under title V of the CAA and 40 CFR action because it is not a significant otherwise apply to it. The immediate part 70. Exide Technologies’ part 70 regulatory action under Executive Order effective date for this action is permit states at section B.11(d) that 12866; Exide Technologies’ permit conditions authorized under both 5 U.S.C. • Does not impose an information supersede 326 IAC 1–6. 553(d)(1), which provides that collection burden under the provisions With respect to commenter’s specific rulemaking actions may become of the Paperwork Reduction Act (44 allegations regarding the redesignation effective less than 30 days after U.S.C. 3501 et seq.); criteria, we do not agree that the SSM publication if the rule ‘‘grants or • Is certified as not having a provision at issue in 326 IAC 1–6–4(a) recognizes an exemption or relieves a significant economic impact on a calls into question EPA’s finding that restriction,’’ and section 553(d)(3), substantial number of small entities the area has attained the NAAQS. The which allows an effective date less than under the Regulatory Flexibility Act (5 air quality monitoring data clearly show 30 days after publication ‘‘as otherwise U.S.C. 601 et seq.); that the area is attaining the NAAQS, provided by the agency for good cause • Does not contain any unfunded and the status of the SSM SIP Call does found and published with the rule.’’ mandate or significantly or uniquely not alter those factual circumstances. The purpose of the 30-day waiting affect small governments, as described We also disagree that the SSM provision period prescribed in section 553(d) is to in the Unfunded Mandates Reform Act impacts EPA’s conclusion that CAA give affected parties a reasonable time to of 1995 (Public Law 104–4); section 107(d)(3)(E)(iii) is satisfied. The adjust their behavior and prepare before • Does not have federalism permanent and enforceable lead the final rule takes effect. This rule, implications as specified in Executive emission reductions at Exide however, does not create any new Order 13132 (64 FR 43255, August 10, Technologies, which were demonstrated regulatory requirements such that 1999); to provide for attainment in Muncie, affected parties would need time to • Is not an economically significant would not be affected in any way by 326 prepare before the rule takes effect. regulatory action based on health or IAC 1–6–4(a), which plainly does not Rather, this rule relieves the State of safety risks subject to Executive Order apply to the single, relevant source. planning requirements for this lead 13045 (62 FR 19885, April 23, 1997); Finally, EPA believes that the SSM nonattainment area. For these reasons, • Is not a significant regulatory action provision cited by the commenter is not EPA finds good cause under 5 U.S.C. subject to Executive Order 13211 (66 FR relevant to the inquiry of whether 553(d)(3) for these actions to become 28355, May 22, 2001);

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• Is not subject to requirements of submit a rule report, which includes a reference, Intergovernmental relations, Section 12(d) of the National copy of the rule, to each House of the Lead. Technology Transfer and Advancement Congress and to the Comptroller General Act of 1995 (15 U.S.C. 272 note) because of the United States. EPA will submit a 40 CFR Part 81 application of those requirements would report containing this action and other Environmental protection, Air be inconsistent with the CAA; and required information to the U.S. Senate, pollution control, National parks, • the U.S. House of Representatives, and Does not provide EPA with the Wilderness areas. discretionary authority to address, as the Comptroller General of the United appropriate, disproportionate human States prior to publication of the rule in Dated: April 20, 2020. health or environmental effects, using the Federal Register. A major rule Kurt Thiede, practicable and legally permissible cannot take effect until 60 days after it Regional Administrator. methods, under Executive Order 12898 is published in the Federal Register. (59 FR 7629, February 16, 1994). This action is not a ‘‘major rule’’ as 40 CFR parts 52 and 81 are amended In addition, the SIP is not approved defined by 5 U.S.C. 804(2). as follows: to apply on any Indian reservation land Under section 307(b)(1) of the CAA, or in any other area where EPA or an petitions for judicial review of this PART 52—APPROVAL AND Indian tribe has demonstrated that a action must be filed in the United States PROMULGATION OF tribe has jurisdiction. In those areas of Court of Appeals for the appropriate IMPLEMENTATION PLANS Indian country, the rule does not have circuit by July 14, 2020. Filing a petition tribal implications as specified by for reconsideration by the Administrator ■ 1. The authority citation for part 52 Executive Order 13175 (65 FR 67249, of this final rule does not affect the continues to read as follows: November 9, 2000), because finality of this action for the purposes of Authority: 42 U.S.C. 7401 et seq. redesignation is an action that affects judicial review nor does it extend the the status of a geographical area and time within which a petition for judicial ■ 2. In § 52.770, the table in paragraph review may be filed, and shall not does not impose any new regulatory (e) is amended by adding entries for postpone the effectiveness of such rule requirements on tribes, impact any ‘‘Muncie 2008 lead emissions existing sources of air pollution on or action. This action may not be challenged later in proceedings to inventory’’ and ‘‘Muncie 2008 lead tribal lands, nor impair the maintenance maintenance plan’’ following the entry of lead NAAQS in tribal lands. enforce its requirements. (See section 307(b)(2).) for ‘‘Muncie Hydrocarbon Control The Congressional Review Act, 5 Strategy’’ to read as follows: U.S.C. 801 et seq., as added by the Small List of Subjects Business Regulatory Enforcement § 52.770 Identification of plan. 40 CFR Part 52 Fairness Act of 1996, generally provides * * * * * that before a rule may take effect, the Environmental protection, Air agency promulgating the rule must pollution control, Incorporation by (e) * * *

EPA-APPROVED INDIANA NONREGULATORY AND QUASI-REGULATORY PROVISIONS

Indiana Title date EPA approval Explanation

******* Muncie 2008 lead emissions inventory ...... 4/14/2016 5/15/2020, [insert Federal Register citation]. Muncie 2008 lead maintenance plan ...... 4/14/2016 5/15/2020, [insert Federal Register citation].

*******

■ 3. Section 52.797 is amended by (g) Approval — The 2008 lead Authority: 42 U.S.C. 7401, et seq. adding paragraphs (f) and (g) to read as maintenance plan for the Muncie, ■ follows: Indiana nonattainment area has been 5. Section 81.315 is amended by approved as submitted on April 14, revising the entry for Muncie, IN in the § 52.797 Control strategy: Lead. 2016. table entitled ‘‘Indiana—2008 Lead * * * * * NAAQS’’ to read as follows: (f) Approval—Indiana’s 2008 lead PART 81—DESIGNATION OF AREAS emissions inventory for the Muncie FOR AIR QUALITY PLANNING § 81.315 Indiana. area, as submitted on April 14, 2016, PURPOSES * * * * * satisfying the emission inventory requirements of section 172(c)(3) of the ■ 4. The authority citation for part 81 Clean Air Act for the Muncie area. continues to read as follows:

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INDIANA—2008 LEAD NAAQS

Designation for the 2008 a Designated area NAAQS Date 1 Type

Muncie, IN

Delaware County (part) ...... May 15, 2020 Attainment. A portion of the City of Muncie, Indiana bounded to the north by West 26th Street/Hines Road, to the east by Cowan Road, to the south by West Fuson Road, and to the west by a line running south from the eastern edge of Victory Temple’s driveway to South Hoyt Avenue and then along South Hoyt Avenue.

******* a Includes Indian Country located in each county or area, except as otherwise specified. 1 December 31, 2011, unless otherwise noted.

[FR Doc. 2020–08874 Filed 5–14–20; 8:45 am] FOR FURTHER INFORMATION CONTACT: proper receipt by EPA, you must BILLING CODE 6560–50–P Michael Goodis, Registration Division identify docket ID number EPA–HQ– (7505P), Office of Pesticide Programs, OPP–2019–0387 in the subject line on Environmental Protection Agency, 1200 the first page of your submission. All ENVIRONMENTAL PROTECTION Pennsylvania Ave. NW, Washington, DC objections and requests for a hearing AGENCY 20460–0001; main telephone number: must be in writing, and must be (703) 305–7090; email address: received by the Hearing Clerk on or 40 CFR Part 180 [email protected]. before July 14, 2020. Addresses for mail [EPA–HQ–OPP–2019–0387; FRL–10007–38] SUPPLEMENTARY INFORMATION: and hand delivery of objections and hearing requests are provided in 40 CFR Acequinocyl; Pesticide Tolerances I. General Information 178.25(b). In addition to filing an objection or AGENCY: Environmental Protection A. Does this action apply to me? hearing request with the Hearing Clerk Agency (EPA). You may be potentially affected by as described in 40 CFR part 178, please this action if you are an agricultural ACTION: Final rule. submit a copy of the filing (excluding producer, food manufacturer, or any Confidential Business Information SUMMARY: This regulation establishes pesticide manufacturer. The following (CBI)) for inclusion in the public docket. tolerances for residues of acequinocyl in list of North American Industrial Information not marked confidential or on the bushberry subgroup 13–07B. Classification System (NAICS) codes is pursuant to 40 CFR part 2 may be Interregional Research Project Number 4 not intended to be exhaustive, but rather disclosed publicly by EPA without prior (IR–4) requested these tolerances under provides a guide to help readers notice. Submit the non-CBI copy of your the Federal Food, Drug, and Cosmetic determine whether this document objection or hearing request, identified Act (FFDCA). applies to them. Potentially affected by docket ID number EPA–HQ–OPP– DATES: This regulation is effective May entities may include: 2019–0387, by one of the following 15, 2020. Objections and requests for • Crop production (NAICS code 111). methods: hearings must be received on or before • Animal production (NAICS code • Federal eRulemaking Portal: http:// July 14, 2020, and must be filed in 112). • www.regulations.gov. Follow the online accordance with the instructions Food manufacturing (NAICS code instructions for submitting comments. provided in 40 CFR part 178 (see also 311). • Do not submit electronically any Unit I.C. of the SUPPLEMENTARY Pesticide manufacturing (NAICS information you consider to be CBI or INFORMATION). code 32532). other information whose disclosure is ADDRESSES: The docket for this action, B. How can I get electronic access to restricted by statute. identified by docket identification (ID) other related information? • Mail: OPP Docket, Environmental number EPA–HQ–OPP–2019–0387, is You may access a frequently updated Protection Agency Docket Center (EPA/ available at http://www.regulations.gov electronic version of EPA’s tolerance DC), (28221T), 1200 Pennsylvania Ave. or at the Office of Pesticide Programs regulations at 40 CFR part 180 through NW, Washington, DC 20460–0001. Regulatory Public Docket (OPP Docket) the Government Publishing Office’s e- • Hand Delivery: To make special in the Environmental Protection Agency CFR site at http://www.ecfr.gov/cgi-bin/ arrangements for hand delivery or Docket Center (EPA/DC), West William text-idx?&c=ecfr&tpl=/ecfrbrowse/ delivery of boxed information, please Jefferson Clinton Bldg., Rm. 3334, 1301 Title40/40tab_02.tpl. follow the instructions at http:// Constitution Ave. NW, Washington, DC www.epa.gov/dockets/contacts.html. 20460–0001. The Public Reading Room C. How can I file an objection or hearing Additional instructions on commenting is open from 8:30 a.m. to 4:30 p.m., request? or visiting the docket, along with more Monday through Friday, excluding legal Under FFDCA section 408(g), 21 information about dockets generally, is holidays. The telephone number for the U.S.C. 346a, any person may file an available at http://www.epa.gov/ Public Reading Room is (202) 566–1744, objection to any aspect of this regulation dockets. and the telephone number for the OPP and may also request a hearing on those Docket is (703) 305–5805. Please review objections. You must file your objection II. Summary of Petitioned-For the visitor instructions and additional or request a hearing on this regulation Tolerance information about the docket available in accordance with the instructions In the Federal Register of August 30, at http://www.epa.gov/dockets. provided in 40 CFR part 178. To ensure 2019 (84 FR 45702) (FRL–9998–15),

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EPA issued a document pursuant to tropical and subtropical, small fruit, of 100 for all scenarios assessed and are FFDCA section 408(d)(3), 21 U.S.C. inedible peel, subgroup 24A based on not of concern. 346a(d)(3), announcing the filing of a the Agency’s conclusion that aggregate Therefore, based on the risk pesticide petition (PP 9E8768) by IR–4, exposure to acequinocyl is safe for the assessments and information described IR–4 Project Headquarters, Rutgers, The general population, including infants above, EPA concludes there is a State University of New Jersey, 500 and children. See (83 FR 26369) (FRL– reasonable certainty that no harm will College Road East, Suite 201 W, 9978–20). That document contains a result to the general population, or to Princeton, NJ 08540. The petition summary of the toxicological profile and infants and children from aggregate requested that 40 CFR part 180 be points of departure, assumptions for exposure to acequinocyl residues. More amended by establishing a tolerance for exposure assessment, and the Agency’s detailed information on the subject residues of acequinocyl, 2-(acetyloxy)-3- determination regarding the children’s action to establish a tolerance in or on dodecyl-1,4,naphthalenedione and its safety factor, which have not changed. the Bushberry subgroup 13–07B can be metabolite 2-dodecyl-3-hydroxy-1,4- EPA’s exposure assessments have found in the document entitled, naphthoquinone expressed as been updated to include the additional ‘‘Acequinocyl. Human Health Risk acequinocyl equivalents in or on the exposure from use of acequinocyl on the Assessment to Support the Petition for bushberry subgroup 13–07B at 3 parts bushberry subgroup 13–07B, i.e., Tolerance for Residues in/on the per million (ppm). That document reliance on tolerance-level residues and Bushberry Subgroup 13–07B’’ by going referenced a summary of the petition an assumption of 100 percent crop to http://www.regulations.gov. The prepared by Arysta LifeScience North treated (PCT). EPA’s aggregate exposure referenced document is available in the America Corporation, the registrant, assessment incorporated this additional docket established by this action, which which is available in the docket, http:// dietary exposure, as well as exposure in is described under ADDRESSES. Locate www.regulations.gov. There were no drinking water and from residential and click on the hyperlink for docket ID comments received in response to the sources, although those latter exposures number EPA–HQ–OPP–2019–0387. notice of filing. are not impacted by the new use on the IV. Other Considerations III. Aggregate Risk Assessment and bushberry subgroup 13–07B and thus Determination of Safety have not changed since the last A. Analytical Enforcement Methodology assessment. Further information about Section 408(b)(2)(A)(i) of FFDCA EPA’s risk assessment and There are adequate residue analytical allows EPA to establish a tolerance (the determination of safety supporting the methods for enforcing tolerances for legal limit for a pesticide chemical acequinocyl residues of concern in/on residue in or on a food) only if EPA tolerances established in the June 7, 2018 Federal Register action, as well as the registered plant and livestock determines that the tolerance is ‘‘safe.’’ commodities. These methods include Section 408(b)(2)(A)(ii) of FFDCA the new acequinocyl tolerance can be found at http://www.regulations.gov in two high-performance liquid defines ‘‘safe’’ to mean that ‘‘there is a chromatography methods with tandem reasonable certainty that no harm will the document titled ‘‘Acequinocyl. Human Health Risk Assessment to mass-spectroscopy detection (HPLC/ result from aggregate exposure to the MS/MS) for determining residues in/on pesticide chemical residue, including Support the Petition for Tolerance for Residues in/on Guava and Tropical and fruit and nut crops and livestock all anticipated dietary exposures and all matrices. other exposures for which there is Subtropical, Small Fruit, Inedible Peel, reliable information.’’ This includes Subgroup 24A.’’ dated May 16, 2018, in The method may be requested from: exposure through drinking water and in docket ID EPA–HQ–OPP–2017–0376 Chief, Analytical Chemistry Branch, residential settings but does not include and the document titled, ‘‘Acequinocyl. Environmental Science Center, 701 occupational exposure. Section Human Health Risk Assessment to Mapes Rd., Ft. Meade, MD 20755–5350; 408(b)(2)(C) of FFDCA requires EPA to Support the Petition for Tolerance for telephone number: (410) 305–2905; give special consideration to exposure Residues in/on the Bushberry Subgroup email address: residuemethods@ of infants and children to the pesticide 13–07B’’ in docket ID number EPA–HQ– epa.gov. OPP–2019–0387. chemical residue in establishing a B. International Residue Limits tolerance and to ‘‘ensure that there is a Acute dietary risks are below the reasonable certainty that no harm will Agency’s level of concern: 58% of the In making its tolerance decisions, EPA result to infants and children from acute population adjusted dose (aPAD) seeks to harmonize U.S. tolerances with aggregate exposure to the pesticide for children 1 to 2 years old, the international standards whenever chemical residue . . . .’’ population group of concern. Chronic possible, consistent with U.S. food Consistent with FFDCA section dietary risks are below the Agency’s safety standards and agricultural 408(b)(2)(D), and the factors specified in level of concern: 54% of the chronic practices. EPA considers the FFDCA section 408(b)(2)(D), EPA has population adjusted dose (cPAD) for international maximum residue limits reviewed the available scientific data children 1 to 2 years old, the group with (MRLs) established by the Codex and other relevant information in the highest exposure. There is not Alimentarius Commission (Codex), as support of this action. EPA has expected to be any residential handler required by FFDCA section 408(b)(4). sufficient data to assess the hazards of exposure, and only post-application The Codex Alimentarius is a joint and to make a determination on dermal exposures are expected from United Nations Food and Agriculture aggregate exposure for acequinocyl registered uses of acequinocyl in Organization/World Health including exposure resulting from the residential areas. Residential post- Organization food standards program, tolerance established by this action. application oral and inhalation and it is recognized as an international EPA’s assessment of exposures and risks exposures are not expected. Using the food safety standards-setting associated with acequinocyl follows. exposure assumptions described for organization in trade agreements to On June 7, 2018, EPA published in short-term exposures, EPA has which the United States is a party. EPA the Federal Register a final rule concluded the combined short-term may establish a tolerance that is establishing tolerances for residues of food, water, and residential exposures different from a Codex MRL; however, acequinocyl in or on guava and the result in aggregate MOEs above the LOC FFDCA section 408(b)(4) requires that

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EPA explain the reasons for departing relationship between the National Commodity Parts per from the Codex level. Government and the States or Tribal million The Codex has not established a MRL Governments, or on the distribution of for acequinocyl in or on the bushberry power and responsibilities among the ***** subgroup 13–07B. various levels of government or between Bushberry subgroup 13–07B ...... 3 V. Conclusion the Federal Government and Indian ***** Tribes. Thus, the Agency has Therefore, a tolerance is established determined that Executive Order 13132, for residues of acequinocyl, including * * * * * entitled ‘‘Federalism’’ (64 FR 43255, [FR Doc. 2020–09451 Filed 5–14–20; 8:45 am] its metabolites and degradates in or on August 10, 1999) and Executive Order BILLING CODE 6560–50–P the bushberry subgroup 13–07B at 3 13175, entitled ‘‘Consultation and ppm. Coordination with Indian Tribal VI. Statutory and Executive Order Governments’’ (65 FR 67249, November ENVIRONMENTAL PROTECTION Reviews 9, 2000) do not apply to this action. In AGENCY This action establishes a tolerance addition, this action does not impose under FFDCA section 408(d) in any enforceable duty or contain any 40 CFR Part 180 response to a petition submitted to the unfunded mandate as described under [EPA–HQ–OPP–2019–0070; FRL–10001–14] Agency. The Office of Management and Title II of the Unfunded Mandates Budget (OMB) has exempted these types Reform Act (UMRA) (2 U.S.C. 1501 et Isoxaben; Pesticide Tolerances of actions from review under Executive seq.). This action does not involve any AGENCY: Environmental Protection Order 12866, entitled ‘‘Regulatory technical standards that would require Agency (EPA). Planning and Review’’ (58 FR 51735, Agency consideration of voluntary October 4, 1993). Because this action consensus standards pursuant to section ACTION: Final rule. has been exempted from review under 12(d) of the National Technology SUMMARY: This regulation establishes Executive Order 12866, this action is Transfer and Advancement Act tolerances for residues of isoxaben in or not subject to Executive Order 13211, (NTTAA) (15 U.S.C. 272 note). on the caneberry subgroup 13–07A and entitled ‘‘Actions Concerning VII. Congressional Review Act hop, dried cones. Interregional Research Regulations That Significantly Affect Project Number 4 (IR–4) requested these Energy Supply, Distribution, or Use’’ (66 Pursuant to the Congressional Review tolerances under the Federal Food, FR 28355, May 22, 2001) or Executive Act (5 U.S.C. 801 et seq.), EPA will Drug, and Cosmetic Act (FFDCA). Order 13045, entitled ‘‘Protection of submit a report containing this rule and DATES: This regulation is effective May Children from Environmental Health other required information to the U.S. 15, 2020. Objections and requests for Risks and Safety Risks’’ (62 FR 19885, Senate, the U.S. House of hearings must be received on or before April 23, 1997), nor is it considered a Representatives, and the Comptroller July 14, 2020, and must be filed in regulatory action under Executive Order General of the United States prior to accordance with the instructions 13771, entitled ‘‘Reducing Regulations publication of the rule in the Federal provided in 40 CFR part 178 (see also and Controlling Regulatory Costs’’ (82 Register. This action is not a ‘‘major Unit I.C. of the SUPPLEMENTARY FR 9339, February 3, 2017). This action rule’’ as defined by 5 U.S.C. 804(2). INFORMATION). does not contain any information ADDRESSES: collections subject to OMB approval List of Subjects in 40 CFR Part 180 The docket for this action, under the Paperwork Reduction Act identified by docket identification (ID) Environmental protection, (PRA) (44 U.S.C. 3501 et seq.), nor does number EPA–HQ–OPP–2019–0070, is Administrative practice and procedure, it require any special considerations available at http://www.regulations.gov Agricultural commodities, Pesticides under Executive Order 12898, entitled or at the Office of Pesticide Programs and pests, Reporting and recordkeeping ‘‘Federal Actions to Address Regulatory Public Docket (OPP Docket) requirements. Environmental Justice in Minority in the Environmental Protection Agency Populations and Low-Income Dated: April 1, 2020. Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Populations’’ (59 FR 7629, February 16, Michael Goodis, 1994). Constitution Ave. NW, Washington, DC Director, Registration Division, Office of 20460–0001. The Public Reading Room Since tolerances and exemptions that Pesticide Programs. are established on the basis of a petition is open from 8:30 a.m. to 4:30 p.m., under FFDCA section 408(d), such as Therefore, 40 CFR chapter I is Monday through Friday, excluding legal the tolerance in this final rule, do not amended as follows: holidays. The telephone number for the require the issuance of a proposed rule, Public Reading Room is (202) 566–1744, the requirements of the Regulatory PART 180—[AMENDED] and the telephone number for the OPP Flexibility Act (RFA) (5 U.S.C. 601 et Docket is (703) 305–5805. Please review seq.), do not apply. ■ 1. The authority citation for part 180 the visitor instructions and additional This action directly regulates growers, continues to read as follows: information about the docket available at http://www.epa.gov/dockets. food processors, food handlers, and food Authority: 21 U.S.C. 321(q), 346a and 371. retailers, not States or Tribes, nor does FOR FURTHER INFORMATION CONTACT: this action alter the relationships or ■ 2. In § 180.599, amend the table in Michael Goodis, Registration Division distribution of power and paragraph (a) by adding in alphabetical (7505P), Office of Pesticide Programs, responsibilities established by Congress order an entry for ‘‘Bushberry subgroup Environmental Protection Agency, 1200 in the preemption provisions of FFDCA 13–07B’’ to read as follows: Pennsylvania Ave. NW, Washington, DC section 408(n)(4). As such, the Agency 20460–0001; main telephone number: has determined that this action will not § 180.599 Acequinocyl; tolerances for (703) 305–7090; email address: have a substantial direct effect on States residues. [email protected]. or Tribal Governments, on the * * * * * SUPPLEMENTARY INFORMATION:

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I. General Information instructions for submitting comments. of infants and children to the pesticide Do not submit electronically any chemical residue in establishing a A. Does this action apply to me? information you consider to be CBI or tolerance and to ‘‘ensure that there is a You may be potentially affected by other information whose disclosure is reasonable certainty that no harm will this action if you are an agricultural restricted by statute. result to infants and children from producer, food manufacturer, or • Mail: OPP Docket, Environmental aggregate exposure to the pesticide pesticide manufacturer. The following Protection Agency Docket Center (EPA/ chemical residue. . . .’’ list of North American Industrial DC), (28221T), 1200 Pennsylvania Ave. Consistent with FFDCA section Classification System (NAICS) codes is NW, Washington, DC 20460–0001. 408(b)(2)(D), and the factors specified in not intended to be exhaustive, but rather • Hand Delivery: To make special FFDCA section 408(b)(2)(D), EPA has provides a guide to help readers arrangements for hand delivery or reviewed the available scientific data determine whether this document delivery of boxed information, please and other relevant information in applies to them. Potentially affected follow the instructions at http:// support of this action. EPA has entities may include: www.epa.gov/dockets/contacts.html. sufficient data to assess the hazards of • Crop production (NAICS code 111). Additional instructions on commenting and to make a determination on • Animal production (NAICS code or visiting the docket, along with more aggregate exposure for isoxaben 112). information about dockets generally, is including exposure resulting from the • Food manufacturing (NAICS code available at http://www.epa.gov/ tolerances established by this action. 311). dockets. EPA’s assessment of exposures and risks • Pesticide manufacturing (NAICS associated with isoxaben follows. code 32532). II. Summary of Petitioned-For Tolerance A. Toxicological Profile B. How can I get electronic access to In the Federal Register of June 7, 2019 EPA has evaluated the available other related information? (84 FR 26630) (FRL–9993–93), EPA toxicity data and considered its validity, You may access a frequently updated issued a document pursuant to FFDCA completeness, and reliability as well as electronic version of EPA’s tolerance section 408(d)(3), 21 U.S.C. 346a(d)(3), the relationship of the results of the regulations at 40 CFR part 180 through announcing the filing of a pesticide studies to human risk. EPA has also the Government Publishing Office’s e- petition (PP 8E8731) by IR–4, IR–4 considered available information CFR site at http://www.ecfr.gov/cgi-bin/ Project Headquarters, Rutgers, The State concerning the variability of the text-idx?&c=ecfr&tpl=/ecfrbrowse/ University of New Jersey, 500 College sensitivities of major identifiable Title40/40tab_02.tpl. Road East, Suite 201 W, Princeton, NJ subgroups of consumers, including 08540. The petition requested that 40 infants and children. C. How can I file an objection or hearing CFR 180.650 be amended by Isoxaben shows low acute toxicity by request? establishing tolerances for residues of all routes. In chronic oral studies, the Under FFDCA section 408(g), 21 isoxaben, N-[3-(1-ethyl-1-methylpropyl)- liver (mouse) and kidney (rat) were U.S.C. 346a, any person may file an 5-isoxazolyl]-2, 6-dimethoxybenzamide target organs, and decreased body objection to any aspect of this regulation in or on the raw agricultural weight was observed in the rat, mouse, and may also request a hearing on those commodities Hop, dried cones at 0.01 and dog. There was no indication of objections. You must file your objection parts per million (ppm) and Caneberry neurotoxicity or immunotoxicity. There or request a hearing on this regulation subgroup 13–07A at 0.01 ppm. That was no evidence of increased in accordance with the instructions document referenced a summary of the quantitative susceptibility for pre- and/ provided in 40 CFR part 178. To ensure petition prepared by the Dow Chemical or post-natal effects in the rat and rabbit proper receipt by EPA, you must Company, the registrant, which is developmental toxicity studies, nor in identify docket ID number EPA–HQ– available in the docket, http:// the rat multigeneration reproductive OPP–2019–0070 in the subject line on www.regulations.gov. A comment was toxicity study. Increased qualitative the first page of your submission. All received on the notice of filing. EPA’s susceptibility was observed in the rat objections and requests for a hearing response to this comment is discussed reproductive toxicity study; however, must be in writing and must be received in Unit IV.C. concern for qualitative susceptibility is by the Hearing Clerk on or before July low because these effects were only III. Aggregate Risk Assessment and 14, 2020. Addresses for mail and hand observed at the limit dose of 1,000 mg/ Determination of Safety delivery of objections and hearing kg/day in the presence of maternal requests are provided in 40 CFR Section 408(b)(2)(A)(i) of FFDCA effects. 178.25(b). allows EPA to establish a tolerance (the Isoxaben is currently classified as In addition to filing an objection or legal limit for a pesticide chemical having ‘‘suggestive evidence of hearing request with the Hearing Clerk residue in or on a food) only if EPA carcinogenic potential,’’ based on the as described in 40 CFR part 178, please determines that the tolerance is ‘‘safe.’’ presence of liver tumors in male and submit a copy of the filing (excluding Section 408(b)(2)(A)(ii) of FFDCA female mice. Because the tumors were any Confidential Business Information defines ‘‘safe’’ to mean that ‘‘there is a benign and observed at dose levels (CBI)) for inclusion in the public docket. reasonable certainty that no harm will exceeding the limit dose of 1,000 mg/kg/ Information not marked confidential result from aggregate exposure to the day and there was low concern for pursuant to 40 CFR part 2 may be pesticide chemical residue, including genotoxicity, the chronic reference dose disclosed publicly by EPA without prior all anticipated dietary exposures and all is considered protective of potential notice. Submit the non-CBI copy of your other exposures for which there is carcinogenicity and a separate objection or hearing request, identified reliable information.’’ This includes quantitative assessment of cancer risk by docket ID number EPA–HQ–OPP– exposure through drinking water and in was not conducted. 2019–0070, by one of the following residential settings, but does not include Specific information on the studies methods: occupational exposure. Section received and the nature of the adverse • Federal eRulemaking Portal: http:// 408(b)(2)(C) of FFDCA requires EPA to effects caused by isoxaben as well as the www.regulations.gov. Follow the online give special consideration to exposure no-observed-adverse-effect-level

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(NOAEL) and the lowest-observed- possibility of an effect of concern Isoxaben is currently registered for the adverse-effect-level (LOAEL) from the occurring as a result of a 1-day or single following uses that could result in toxicity studies can be found at http:// exposure. residential exposures: Landscape www.regulations.gov in the document No such effects were identified in the ornamentals, lawns/turf, and trees. EPA titled ‘‘Isoxaben. Human Health Risk toxicological studies for isoxaben; assessed residential exposure using the Assessment to Support Proposed New therefore, a quantitative acute dietary following assumptions: Isoxaben Uses on Caneberry Subgroup 13–07A exposure assessment is unnecessary. residential uses constitute short- and and Hops’’ on page numbers 32–37 in ii. Chronic exposure. In conducting intermediate-term exposure scenarios. docket ID number EPA–HQ–OPP–2019– the chronic dietary exposure For residential handlers, since a dermal 0070. assessment, EPA used 2003–2008 food endpoint was not selected, the only consumption data from the U.S. route of exposure quantitatively B. Toxicological Points of Departure/ Department of Agriculture’s (USDA’s) assessed for adult handlers is through Levels of Concern National Health and Nutrition inhalation. For post-application Once a pesticide’s toxicological Examination Survey, What We Eat in exposures, only intermediate-term profile is determined, EPA identifies America (NHANES/WWEIA). As to incidental oral exposures for children toxicological points of departure (POD) residue levels in food, EPA assumed were assessed due to the persistence of and levels of concern to use in tolerance-level residues and 100 percent isoxaben residues in soil. Neither a evaluating the risk posed by human crop treated (PCT). short-term dermal nor short-term exposure to the pesticide. For hazards iii. Cancer. Based on the data incidental oral endpoint was selected that have a threshold below which there summarized in Unit III.A., EPA has for children. Although there is potential is no appreciable risk, the toxicological concluded that a nonlinear RfD for post-application inhalation exposure POD is used as the basis for derivation approach is appropriate for assessing of both adults and children, the of reference values for risk assessment. cancer risk to isoxaben. Cancer risk was estimated exposure is anticipated to be PODs are developed based on a careful assessed using the same exposure negligible; therefore, a quantitative post- analysis of the doses in each estimates as discussed in Unit III.C.1.ii., application inhalation assessment was toxicological study to determine the chronic exposure. not required. dose at which no adverse effects are iv. Anticipated residue and PCT For the purpose of performing an observed (the NOAEL) and the lowest information. EPA did not use aggregate assessment, the Agency dose at which adverse effects of concern anticipated residue or PCT information selected only the most conservative, or are identified (the LOAEL). Uncertainty/ in the dietary assessment for isoxaben. worst-case, residential adult and child safety factors are used in conjunction Tolerance-level residues and 100 PCT scenarios to be included in the with the POD to calculate a safe were assumed for all food commodities. aggregate, based on the lowest overall exposure level—generally referred to as 2. Dietary exposure from drinking MOE (highest exposure estimates). For a population-adjusted dose (PAD) or a water. The Agency used screening-level adults, handler inhalation exposure reference dose (RfD)—and a safe margin water exposure models in the dietary resulting from applications of isoxaben- of exposure (MOE). For non-threshold exposure analysis and risk assessment treated mulch by hand has been used to risks, the Agency assumes that any for isoxaben in drinking water. These estimate adult aggregate exposure. The amount of exposure will lead to some simulation models take into account inhalation exposure was added to degree of risk. Thus, the Agency data on the physical, chemical, and fate/ background exposure from food and estimates risk in terms of the probability transport characteristics of isoxaben. water and compared to the short-term of an occurrence of the adverse effect Further information regarding EPA inhalation POD. Post-application risks expected in a lifetime. For more drinking water models used in pesticide for adults in residential settings were information on the general principles exposure assessment can be found at not assessed due to the lack of a dermal EPA uses in risk characterization and a http://www2.epa.gov/pesticide-science- endpoint. complete description of the risk and-assessing-pesticide-risks/about- For children, an intermediate-term assessment process, see http:// water-exposure-models-used-pesticide. aggregate assessment was conducted by www2.epa.gov/pesticide-science-and- Based on the Surface Water adding the incidental soil ingestion assessing-pesticide-risks/assessing- Concentration Calculator (SWCC exposure, and average food and water human-health-risk-pesticides. v1.106) and Pesticide Root Zone Model exposure (chronic dietary exposure). A summary of the toxicological Ground Water (PRZM GW), the The incidental oral residential exposure endpoints for isoxaben used for human estimated drinking water concentrations value selected for the aggregate analysis risk assessment is discussed in Unit (EDWCs) of isoxaben for chronic is based on children ingesting soil III.B. of the final rule published in the exposures are estimated to be 43.6 parts particles containing pesticide residues Federal Register of February 7, 2018 (83 per billion (ppb) for surface water and while playing on treated turf. Due to the FR 5307) (FRL–9972–75). 909 ppb for ground water. persistence of isoxaben in the soil, the Modeled estimates of drinking water Agency used a conservative approach by C. Exposure Assessment concentrations were directly entered using the maximum seasonal 1. Dietary exposure from food and into the dietary exposure model. For the application rate for estimating soil feed uses. In evaluating dietary chronic dietary risk assessment, the ingestion by children rather than the exposure to isoxaben, EPA considered water concentration value of 909 ppb standard maximum single application exposure under the petitioned-for was used to assess the contribution to rate. This scenario resulted in the tolerances as well as all existing drinking water. highest calculated exposure levels; isoxaben tolerances in 40 CFR 180.650. 3. From non-dietary exposure. The therefore, it is protective for all other EPA assessed dietary exposures from term ‘‘residential exposure’’ is used in oral post-application exposure and risk isoxaben in food as follows: this document to refer to non- for children in residential settings. i. Acute exposure. Quantitative acute occupational, non-dietary exposure Further information regarding EPA dietary exposure and risk assessments (e.g., for lawn and garden pest control, standard assumptions and generic are performed for a food-use pesticide, indoor pest control, termiticides, and inputs for residential exposures may be if a toxicological study has indicated the flea and tick control on pets). found at http://www2.epa.gov/pesticide-

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science-and-assessing-pesticide-risks/ assessment PODs were selected to be and no acute dietary endpoint was standard-operating-procedures- protective for these effects. selected. Therefore, isoxaben is not residential-pesticide. 3. Conclusion. EPA has determined expected to pose an acute risk. 4. Cumulative effects from substances that reliable data show the safety of 2. Chronic risk. Using the exposure with a common mechanism of toxicity. infants and children would be assumptions described in this unit for Section 408(b)(2)(D)(v) of FFDCA adequately protected if the FQPA SF chronic exposure, EPA has concluded requires that, when considering whether were reduced to 1x. That decision is that chronic exposure to isoxaben from to establish, modify, or revoke a based on the following findings: food and water will utilize 98% of the tolerance, the Agency consider i. The toxicity database for isoxaben is cPAD for all infants less than 1-year-old, ‘‘available information’’ concerning the complete to allow the Agency to assess the population group receiving the cumulative effects of a particular the toxicological profile of isoxaben. greatest exposure. Based on the pesticide’s residues and ‘‘other ii. There is no indication that explanation in Unit III.C.3., regarding substances that have a common isoxaben is a neurotoxic chemical and residential use patterns, chronic mechanism of toxicity.’’ there is no need for a developmental residential exposure to residues of neurotoxicity study or additional UFs to EPA has not found isoxaben to share isoxaben is not expected. account for neurotoxicity. 3. Short-term risk. Short-term a common mechanism of toxicity with iii. There was no evidence of aggregate exposure takes into account any other substances, and isoxaben does increased quantitative susceptibility for short-term residential exposure plus not appear to produce a toxic metabolite pre- and/or post-natal effects in the rat chronic exposure to food and water produced by other substances. For the and rabbit developmental toxicity (considered to be a background purposes of this tolerance action, studies, nor in the rat multigeneration exposure level). therefore, EPA has assumed that reproductive toxicity study. Increased Isoxaben is currently registered for isoxaben does not have a common qualitative susceptibility was observed uses that could result in short-term mechanism of toxicity with other in the rat reproductive toxicity study, residential exposure, and the Agency substances. For information regarding however, concern for qualitative has determined that it is appropriate to EPA’s efforts to determine which susceptibility is low because these aggregate chronic exposure through food chemicals have a common mechanism effects were only observed at the limit and water with short-term residential of toxicity and to evaluate the dose of 1,000 mg/kg/day in the presence exposures to isoxaben. cumulative effects of such chemicals, of maternal effects. The regulatory see EPA’s website at http:// endpoint is protective of the offspring Using the exposure assumptions www2.epa.gov/pesticide-science-and- effects. described in this unit for short-term assessing-pesticide-risks/cumulative- iv. There are no residual uncertainties exposures, EPA has concluded the assessment-risk-pesticides. identified in the exposure databases. combined short-term food, water, and The dietary food exposure assessments residential exposures result in an D. Safety Factor for Infants and aggregate MOE of 10,500 for females 13 Children were performed based on 100 PCT and tolerance-level residues. EPA made to 49 years old. Because EPA’s level of 1. In general. Section 408(b)(2)(C) of conservative (protective) assumptions in concern for isoxaben is a MOE of 100 or FFDCA provides that EPA shall apply the ground and surface water modeling below, this MOE is not of concern. an additional tenfold (10X) margin of used to assess exposure to isoxaben in 4. Intermediate-term risk. safety for infants and children in the drinking water. EPA used similarly Intermediate-term aggregate exposure case of threshold effects to account for conservative assumptions to assess post- takes into account intermediate-term prenatal and postnatal toxicity and the application exposure of children as well residential exposure plus chronic completeness of the database on toxicity as incidental oral exposure of toddlers. exposure to food and water (considered and exposure unless EPA determines These assessments will not to be a background exposure level). based on reliable data that a different underestimate the exposure and risks Isoxaben is currently registered for margin of safety will be safe for infants posed by isoxaben. uses that could result in intermediate- and children. This additional margin of term residential exposure, and the safety is commonly referred to as the E. Aggregate Risks and Determination of Agency has determined that it is FQPA Safety Factor (SF). In applying Safety appropriate to aggregate chronic this provision, EPA either retains the EPA determines whether acute and exposure through food and water with default value of 10X, or uses a different chronic dietary pesticide exposures are intermediate-term residential exposures additional safety factor when reliable safe by comparing aggregate exposure to isoxaben. data available to EPA support the choice estimates to the acute PAD (aPAD) and Using the exposure assumptions of a different factor. chronic PAD (cPAD). For linear cancer described in this unit for intermediate- 2. Prenatal and postnatal sensitivity. risks, EPA calculates the lifetime term exposures, EPA has concluded that There was no evidence of increased probability of acquiring cancer given the the combined intermediate-term food, quantitative susceptibility for pre- and/ estimated aggregate exposure. Short-, water, and residential exposures result or post-natal effects in the rat and rabbit intermediate-, and chronic-term risks in an aggregate MOE of 7,200 for developmental toxicity studies, nor in are evaluated by comparing the children 1 to 2 years old. Because EPA’s the rat multigeneration reproductive estimated aggregate food, water, and level of concern for isoxaben is a MOE toxicity study. Increased qualitative residential exposure to the appropriate of 100 or below, this MOE is not of susceptibility was observed in the rat PODs to ensure that an adequate MOE concern. reproductive toxicity study, however, exists. 5. Aggregate cancer risk for U.S. concern for qualitative susceptibility is 1. Acute risk. An acute aggregate risk population. Based on the discussion in low because these effects were only assessment takes into account acute Unit III.A., EPA considers the chronic observed at the limit dose of 1,000 mg/ exposure estimates from dietary aggregate risk assessment to be kg/day in the presence of maternal consumption of food and drinking protective of any aggregate cancer risk. effects. The NOAEL/LOAEL for these water. No adverse effect resulting from As there is no chronic risk of concern, effects is well-defined, and risk a single oral exposure was identified EPA does not expect any cancer risk to

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the U.S. population from aggregate available data as well as other factors Government and the States or tribal exposure to isoxaben. the FFDCA requires EPA to consider, governments, or on the distribution of 6. Determination of safety. Based on EPA has determined that these isoxaben power and responsibilities among the these risk assessments, EPA concludes tolerances are safe. The commenter has various levels of government or between that there is a reasonable certainty that provided no information supporting a the Federal Government and Indian no harm will result to the general contrary conclusion. tribes. Thus, the Agency has determined population, or to infants and children V. Conclusion that Executive Order 13132, entitled from aggregate exposure to isoxaben ‘‘Federalism’’ (64 FR 43255, August 10, residues. Therefore, tolerances are established 1999) and Executive Order 13175, for residues of isoxaben in or on the entitled ‘‘Consultation and Coordination IV. Other Considerations caneberry subgroup 13–07A at 0.01 ppm with Indian Tribal Governments’’ (65 FR and hop, dried cones at 0.01 ppm. A. Analytical Enforcement Methodology 67249, November 9, 2000) do not apply An adequate analytical method VI. Statutory and Executive Order to this action. In addition, this action utilizing liquid chromatography with Reviews does not impose any enforceable duty or tandem mass spectrometric detection This action establishes tolerances contain any unfunded mandate as (LC/MS/MS), GRM 02.26.S.1 (a revision under FFDCA section 408(d) in described under Title II of the Unfunded of GRM 02.26), is available for response to a petition submitted to the Mandates Reform Act (UMRA) (2 U.S.C. enforcement of isoxaben residues in Agency. The Office of Management and 1501 et seq.). crop commodities. Budget (OMB) has exempted these types This action does not involve any The method may be requested from: of actions from review under Executive technical standards that would require Chief, Analytical Chemistry Branch, Order 12866, entitled ‘‘Regulatory Agency consideration of voluntary Environmental Science Center, 701 Planning and Review’’ (58 FR 51735, consensus standards pursuant to section Mapes Rd., Ft. Meade, MD 20755–5350; October 4, 1993). Because this action 12(d) of the National Technology telephone number: (410) 305–2905; has been exempted from review under Transfer and Advancement Act email address: residuemethods@ Executive Order 12866, this action is (NTTAA) (15 U.S.C. 272 note). epa.gov. not subject to Executive Order 13211, entitled ‘‘Actions Concerning VII. Congressional Review Act B. International Residue Limits Regulations That Significantly Affect In making its tolerance decisions, EPA Energy Supply, Distribution, or Use’’ (66 Pursuant to the Congressional Review seeks to harmonize U.S. tolerances with FR 28355, May 22, 2001); Executive Act (5 U.S.C. 801 et seq.), EPA will international standards whenever Order 13045, entitled ‘‘Protection of submit a report containing this rule and possible, consistent with U.S. food Children from Environmental Health other required information to the U.S. safety standards and agricultural Risks and Safety Risks’’ (62 FR 19885, Senate, the U.S. House of practices. EPA considers the April 23, 1997); or Executive Order Representatives, and the Comptroller international maximum residue limits 13771, entitled ‘‘Reducing Regulations General of the United States prior to (MRLs) established by the Codex and Controlling Regulatory Costs’’ (82 publication of the rule in the Federal Alimentarius Commission (Codex), as FR 9339, February 3, 2017). This action Register. This action is not a ‘‘major required by FFDCA section 408(b)(4). does not contain any information rule’’ as defined by 5 U.S.C. 804(2). The Codex Alimentarius is a joint collections subject to OMB approval List of Subjects in 40 CFR Part 180 United Nations Food and Agriculture under the Paperwork Reduction Act Organization/World Health (PRA) (44 U.S.C. 3501 et seq.), nor does Environmental protection, Organization food standards program, it require any special considerations Administrative practice and procedure, and it is recognized as an international under Executive Order 12898, entitled Agricultural commodities, Pesticides food safety standards-setting ‘‘Federal Actions to Address and pests, Reporting and recordkeeping organization in trade agreements to Environmental Justice in Minority requirements. which the United States is a party. EPA Populations and Low-Income may establish a tolerance that is Populations’’ (59 FR 7629, February 16, Dated: April 3, 2020. different from a Codex MRL; however, 1994). Michael Goodis, FFDCA section 408(b)(4) requires that Since tolerances and exemptions that Director, Registration Division, Office of EPA explain the reasons for departing are established on the basis of a petition Pesticide Programs. from the Codex level. under FFDCA section 408(d), such as The Codex has not established any the tolerances in this final rule, do not Therefore, 40 CFR chapter I is MRLs for isoxaben. require the issuance of a proposed rule, amended as follows: the requirements of the Regulatory C. Response to Comments PART 180—[AMENDED] Flexibility Act (RFA) (5 U.S.C. 601 et One comment was received that seq.), do not apply. stated in part that isoxaben ‘‘should (sic) This action directly regulates growers, ■ 1. The authority citation for part 180 not be allowed to be used on hop, etc.’’ food processors, food handlers, and food continues to read as follows: Although the Agency recognizes that retailers, not States or tribes, nor does Authority: 21 U.S.C. 321(q), 346a and 371. some individuals believe that pesticides this action alter the relationships or should be banned on agricultural crops, distribution of power and ■ 2. In § 180.650, add alphabetically the the existing legal framework provided responsibilities established by Congress entries ‘‘Caneberry subgroup 13–07A’’ by section 408 of the Federal Food, Drug in the preemption provisions of FFDCA and ‘‘Hop, dried cones’’ to the table in and Cosmetic Act (FFDCA) authorizes section 408(n)(4). As such, the Agency paragraph (a) to read as follows: EPA to establish tolerances when it has determined that this action will not determines that the tolerance is safe. have a substantial direct effect on States § 180.650 Isoxaben; tolerances for residues. Upon consideration of the validity, or tribal governments, on the completeness, and reliability of the relationship between the National (a) * * *

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Commodity Parts per million Environment Assessment, and other stock assessment results and make supporting documents for the action, are recommendations to the Council for ***** available upon request from Dr. revised catch and landings limits. The Caneberry subgroup 13– 0.01 Christopher M. Moore, Executive SSC applied the Council’s risk policy 07A. Director, Mid-Atlantic Fishery and acceptable biological catch (ABC) Management Council, Suite 201, 800 N control rule to derive recommended ***** State Street, Dover, DE 19901. These Hop, dried cones ...... 0.01 overfishing limits (OFL) and ABC values documents are also accessible via the for fishing years 2020 and 2021. ***** internet at http://www.mafmc.org. The Council and Board reviewed the FOR FURTHER INFORMATION CONTACT: new operational stock assessment * * * * * Emily Keiley, Fishery Policy Analyst, information and the SSC and MC- [FR Doc. 2020–08962 Filed 5–14–20; 8:45 am] (978) 281–9116. recommended specifications at their BILLING CODE 6560–50–P SUPPLEMENTARY INFORMATION: joint meeting in October 2019, and took final action on revised 2020 and Background projected 2021 specifications. This DEPARTMENT OF COMMERCE The Mid-Atlantic Fishery action implements the Council and Management Council and the Atlantic Board’s preferred alternatives. National Oceanic and Atmospheric States Marine Fisheries Commission This action is being published Administration jointly manage the scup and black sea without prior notice and a formal public bass fisheries as part of the Summer comment period. The revised 2020 scup 50 CFR Part 648 Flounder, Scup, and Black Sea Bass and black sea bass specifications [Docket No. 200420–0118] Fishery Management Plan (FMP). Scup included in this action were anticipated and black sea bass annual catch and during development of the interim RIN 0648–XH043 landings limits do not roll over from one specifications, which were the subject of year to the next. To meet the FMP Fisheries of the Northeastern United a notice and comment rulemaking objectives and requirements of the process. Prior to our rulemaking, the States; Summer Flounder, Scup, and Magnuson-Stevens Act, commercial Black Sea Bass Fisheries; Revised Council and Board discussed that the quotas and recreational harvest limits interim measures would be replaced as 2020 and Projected 2021 Black Sea (RHL) must be in place by January 1 of Bass and Scup Specifications quickly as possible once the operational each year. At a joint meeting in October stock assessment process was complete. AGENCY: National Marine Fisheries 2019, the Council and the Commission’s The public was also notified of our Service (NMFS), National Oceanic and Summer Flounder, Scup, and Black Sea intent to publish revised specifications Atmospheric Administration (NOAA), Bass Board adopted interim 2020 catch in the proposed and final rules of the Commerce. and landings limits for scup and black interim scup and black sea bass sea bass in late 2019 (84 FR 54041, ACTION: Final rule. specifications action (84 FR 54041, October 9, 2019). The interim limits October 9, 2019). SUMMARY: This action approves revised were identical to 2019 limits and 2020 and projected 2021 specifications intended to be replaced as soon as Revised Specifications for the scup and black sea bass fisheries. possible following operational stock Black Sea Bass Specifications Changes to the specifications are assessments for both species conducted necessary to better achieve optimum in the fall of 2019. Interim 2020 The Council and Board recommended yield within the fishery while specifications were necessary because 2020–2021 black sea bass catch and controlling overfishing, consistent with there was not sufficient time to landings limits are shown in Table 1. recent stock assessment updates and the complete the specification development The recommendations are based on the Magnuson-Stevens Fishery and rulemaking between the stock averaged 2020–2021 ABCs Conservation and Management Act. assessment peer review and January 1, recommended by the SSC. This This rule informs the public of the 2020. This action implements the approach allows for constant catch and changes to the specifications for the updated 2020 specifications replacing landings limits across both years. The remainder of the 2020 fishing year and the interim measures and announces ABCs are based on an SSC-modified announces projected 2021 projected 2021 specifications for scup OFL and the Council’s risk policy for a specifications. and black sea bass. species with a typical life history and The Council’s Scientific and biomass level above BMSY, resulting in DATES: Effective May 15, 2020, through Statistical Committee (SSC) and the a 40-percent probability of overfishing. December 31, 2020. Summer Flounder, Scup, and Black Sea The final 2020 commercial quota and ADDRESSES: Copies of the revised Bass Monitoring Committee (MC) met in RHL are 59 percent higher than the specifications, including the October 2019 to review the operational interim 2020 limits.

TABLE 1—2020–2021 BLACK SEA BASS CATCH AND LANDINGS LIMITS *

Measure Mil lb. Metric ton

OFL ...... 2020: 19.39 2020: 8,795 2021: 17.68 2021: 8,021 ABC ...... 15.07 6,835 ABC Landings Portion ...... 11.39 5,164 ABC Discards Portion ...... 3.68 1,671 Expected Commercial Discards ...... 1.4 637 Expected Recreational Discards ...... 2.28 1,034 Commercial ACL = ACT ...... 6.98 3,167 Commercial Quota ...... 5.58 2,530

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TABLE 1—2020–2021 BLACK SEA BASS CATCH AND LANDINGS LIMITS *—Continued

Measure Mil lb. Metric ton

Recreational ACL = ACT ...... 8.09 3,668 RHL ...... 5.81 2,634 * All values except OFL are the same for both years.

Scup Specifications recommendations are based on the history and biomass level above BMSY, 2020–2021 ABCs recommended by the resulting in a 40-percent probability of The Council and Board recommended SSC. The ABCs are based on an SSC- overfishing. The final 2020 commercial 2020–2021 scup catch and landings modified OFL and the Council’s risk quota and RHL are 7 percent lower than limits are shown in Table 2. The policy for a species with a typical life the interim 2020 limits.

TABLE 2—2020–2021 SCUP CATCH AND LANDINGS LIMITS

2020–2021 varying ABC approach Measure 2020 2021 mil lb mt mil lb mt

OFL ...... 41.17 18,674 35.30 16,012 ABC ...... 35.77 16,227 30.67 13,913 ABC Discards...... 7.03 3,190 7.26 3,295 Commercial ACL = ACT ...... 27.90 12,657 23.92 10,852 Projected Commercial Discards ...... 5.67 2,574 5.86 2,659 Commercial Quota ...... 22.23 10,083 18.06 8,194 Recreational ACL = ACT ...... 7.87 3,570 6.75 3,061 Projected Recreational Discards ...... 1.36 616 1.40 636 RHL ...... 6.51 2,954 5.34 2,424

The 2020 scup commercial quota is divided into three commercial fishery quota periods, as outlined in Table 3.

TABLE 3—COMMERCIAL SCUP QUOTA ALLOCATIONS FOR 2020 BY QUOTA PERIOD

Quota period Percent share lb mt

Winter I ...... 45.11 10,027,597 4,548 Summer ...... 38.95 8,658,277 3,927 Winter II ...... 15.94 3,543,336 1,607

Total ...... 100.0 22,229,210 10,083

The current quota period possession limits are not changed by this action, and are outlined in Table 4.

TABLE 4—COMMERCIAL SCUP POSSESSION LIMITS BY QUOTA PERIOD

Federal possession limits Quota period Percent share (per trip) lb kg

Winter I ...... 45.11 50,000 22,680 Summer ...... 38.95 N/A N/A Winter II ...... 15.94 12,000 5,443

Total ...... 100.0 N/A N/A

The Winter I possession limit will transferred to Winter II. The Winter II regulations specify that the Winter II drop to 1,000 lb (454 kg) when 80 possession limit may be adjusted (in possession limit increases consistent percent of that period’s allocation is association with a transfer of unused with the increase in the quota, as landed. If the Winter I quota is not fully Winter I quota to the Winter II period) described in Table 5. harvested, the remaining quota is via notice in the Federal Register. The

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TABLE 5—POTENTIAL INCREASE IN WINTER II POSSESSION LIMITS BASED ON THE AMOUNT OF UNUSED SCUP ROLLED OVER FROM WINTER I TO WINTER II

Initial Rollover from Increase in Final Winter II possession limit Winter II Winter I Initial Winter II after rollover from possession limit to Winter II possession limit Winter I to Winter II lb kg lb kg lb kg lb kg

12,000 ...... 5,443 0–499,999 0–226,796 0 0 12,000 5,443 12,000 ...... 5,443 500,000– 226,796– 1,500 680 13,500 6,123 999,999 453,592 12,000 ...... 5,443 1,000,000– 453,592– 3,000 1,361 15,000 6,804 1,499,999 680,388 12,000 ...... 5,443 1,500,000– 680,389– 4,500 2,041 16,500 7,484 1,999,999 907,184 12,000 ...... 5,443 * 2,000,000– 907,185– 6,000 2,722 18,000 8,165 2,500,000 1,133,981 * This process of increasing the possession limit in 1,500 lb (680 kg) increments would continue past 2,500,000 lb (1,122,981 kg), but we end here for the purpose of this example.

Classification in effectiveness would unnecessarily assessment became available in October Pursuant to section 304(b)(1)(A) of the disadvantage fishermen who wish to 2019, and while the Council and Board Magnuson-Stevens Act, the NMFS take advantage of the increased quotas. also took final action on the revised Assistant Administrator has determined A delay would be contrary to the public specifications in October, we did not that this final rule is consistent with the interest for this loss of potential receive the Council’s recommendations Summer Flounder, Scup, and Black Sea economic opportunity, and it could and supporting analysis until January Bass FMP, the national standards and create confusion in the black sea bass 2020. A delay in implementing the new other provisions of the Magnuson- fishery. This rule should be effective as catch limits would be contrary to the Stevens Act, and other applicable law. soon as possible to fully realize the public interest. This final rule is exempt from review intended benefits to the fishery. This Furthermore, there exists good cause under Executive Order 12866 because action is necessary to adjust the scup to waive the otherwise applicable this action contains no implementing quotas based on the newest stock requirement of a 30-day delay before regulations. assessment. The commercial scup quota this rule becomes effective. Unlike This final rule does not duplicate, is decreasing by 19 percent, and the actions that require an adjustment conflict, or overlap with any existing recreational quota is being reduced by period to comply with new rules, Federal rules. 18 percent. A delay in its effectiveness fishery participants will not be required This action does not contain a would unnecessarily increase the to purchase new equipment or collection of information requirement probability of overfishing the stock. This otherwise expend time or money to for purposes of the Paperwork rule should be effective as soon as comply with these management Reduction Act. possible to ensure that the catch limits measures. Rather, complying with this This final rule is exempt from the are consistent with the most recent rule simply means adhering to the catch procedures of the Regulatory Flexibility assessment of the stock. limits and management measures set for Act because the rule is issued without This action, revising 2020 scup and the remainder of the fishing year. opportunity for prior notice and black sea bass specifications to account Fishery stakeholders have been opportunity for public comment. for the stock assessment results, was involved in the development of this Pursuant to 5 U.S.C. 553(b)(B), the anticipated during development and action and are anticipating this rule. For Assistant Administrator for Fisheries, implementation of the interim the reasons explained above any further NOAA, finds good cause to waive the specifications put in place to start the delay would be contrary to the public otherwise applicable requirement for fishing year. Because of this, the public interest because it would undermine the notice and an opportunity and comment was notified of our intent to publish intended effect of the rule. because it would be contrary to the revised specifications in the proposed For these reasons, there is good cause public interest. Additionally, the and final rules on that action (84 FR to waive the 30-day delay in Assistant Administrator finds good 54041, October 9, 2019). The effectiveness and these specifications cause under 5 U.S.C. 553(d)(3) to waive information for and development of this shall be made effective on May 15, 2020. the 30-day delay of effectiveness period action was discussed and subject to Authority: 16 U.S.C. 1801 et seq. for this rule. This action revises the public comment following the existing 2020 specifications (i.e., annual assessment results at a public Dated: April 20, 2020. catch limits) for the scup and black sea monitoring committee meeting in Samuel D. Rauch, III, bass fisheries to account for new stock October 2019, and at the joint Mid- Deputy Assistant Administrator for assessment results. The black sea bass Atlantic Council and Board meeting in Regulatory Programs, National Marine commercial and recreational harvest October 2019. Fisheries Service. limits increase by 59 percent based on This rule is being issued at the earliest [FR Doc. 2020–08829 Filed 5–14–20; 8:45 am] the updated stock assessment. A delay possible date. The results of the BILLING CODE 3510–22–P

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Proposed Rules Federal Register Vol. 85, No. 95

Friday, May 15, 2020

This section of the FEDERAL REGISTER number; if your comments relate to the Flexibility Act, which was subsequently contains notices to the public of the proposed supplementary information, please refer codified at 5 U.S.C. 9601 and 9602. On issuance of rules and regulations. The to the heading and page number. All December 23, 2016, the President signed purpose of these notices is to give interested comments received will be posted the National Defense Authorization Act persons an opportunity to participate in the without change, including any personal (NDAA) for Fiscal Year (FY) 2017 (‘‘the rule making prior to the adoption of the final rules. information provided. Please ensure Act’’). Section 1135 of the Act amended your comments are submitted within section 9602 of title 5, United States the specified open comment period. Code. Collectively, these provisions OFFICE OF PERSONNEL Comments received after the close of the established how a current or former MANAGEMENT comment period will be marked ‘‘late,’’ employee of a ‘‘land management and OPM is not required to consider agency,’’ as defined by the Act, serving 5 CFR Parts 315 and 335 them in formulating a final decision. under a time-limited appointment, may RIN 3206–AN28 Before acting on this proposal, OPM compete for a permanent position in the will consider all comments we receive competitive service—either at such an Appointment of Current and Former on or before the closing date for agency, when the agency is accepting Land Management Employees comments. Changes to this proposal applications from individuals within may be made in light of the comments the agency’s workforce under its merit AGENCY: Office of Personnel we receive. promotion procedures, or at any agency, Management. FOR FURTHER INFORMATION CONTACT: when the hiring agency is accepting ACTION: Proposed rule with request for Michelle T. Glynn, (202) 606–1571, by applications from individuals outside comments. TDD: 1–800–877–8339, or email: its own workforce under the merit [email protected]. promotion procedures of the hiring SUMMARY: The Office of Personnel SUPPLEMENTARY INFORMATION: agency. 5 U.S.C. 9602(a) and (d). In Management (OPM) is issuing proposed accordance with 5 U.S.C. 9602(e), which regulations to implement recent Background confers upon OPM authority to statutory changes allowing certain Federal agencies are authorized to prescribe such regulations as may be employees and former employees of a make temporary appointments to fill necessary to carry out the Act, OPM is land management agency to compete for positions that do not require an proposing that, for these purposes, a permanent position at such agency employee’s services on a permanent ‘‘agency’’ can refer to either the highest when the agency is accepting basis, specifically positions to perform organizational level (i.e., a Department applications from individuals within work which is not expected to last more as defined in 5 U.S.C. 105) or a the agency’s workforce under promotion than one year. Temporary employees are component or major subdivision of a and internal placement (i.e., merit ineligible to compete for vacant Department (e.g., the National Park promotion) procedures, or at any hiring positions advertised under promotion Service within the U.S. Department of agency when the agency is accepting and internal placement (i.e., merit the Interior). Eligible individuals applications from individuals outside promotion) procedures because, by (referred to in this notice of proposed its own workforce under merit definition, temporary employees are not rule-making as ‘‘land management promotion procedures. These changes career or career-conditional employees eligibles’’) must have served at an arose from enactment of the Land (see 5 CFR 315.201). Generally, acceptable level of performance Management Workforce Flexibility Act positions filled under merit promotion throughout the period(s) of time-limited (‘‘the Act’’), as amended by the National procedures are open to current or former appointment(s), have served under one Defense Authorization Act for Fiscal career or career-conditional employees or more time-limited appointments at a Year 2017, and are codified at section and certain veterans eligible under the land management agency for a period or 9602 of title 5. The intended effect of Veterans Employment Opportunities periods totaling more than 24 months this rule is to facilitate the entrance of Act of 1998, as amended (see 5 CFR part without a break of two or more years, current and former land management 335). Because many agencies fill non- and the employee was appointed employees into permanent Federal jobs. entry level jobs using merit promotion initially under open, competitive DATES: Comments must be received on procedures qualified temporary examination to the time-limited or before July 14, 2020. employees may never be considered for appointment. Id. A former employee of ADDRESSES: You may submit comments, these jobs. To remedy this circumstance a land management agency who served identified by the docket number or Congress enacted the Land Management under a time-limited appointment and Regulation Identifier Number (RIN) for Workforce Flexibility Act (‘‘the Act’’) to who otherwise meets the requirements this proposed rulemaking, by any of the provide a pathway for certain temporary addressed in the statute, is also deemed following methods: employees in Federal land management to be a land management eligible, for Federal eRulemaking Portal: http:// agencies to compete for vacant purposes of the statute, if he or she www.regulations.gov. Follow the permanent positions under merit applies for a position covered by these instructions for sending comments. promotion procedures. provisions within the period of two All submissions must include the years after the individual’s most recent agency name and docket number or RIN Land Management Workforce separation and such employee’s most for this rulemaking. Please arrange and Flexibility Act, as Amended recent separation was for reasons other identify your comments on the On August 7, 2015, the President than misconduct or performance. Id. regulatory text by subpart and section signed the Land Management Workforce The Act also waives any age

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requirements, unless the requirement is land management eligibles must be • Fish and Wildlife Service of the essential to the performance of the rated and ranked with other merit U.S. Department of the Interior; duties of the position. Id. at 9602(b). promotion candidates under the same • Bureau of Indian Affairs of the U.S. Under the Act, a land management assessment criteria as the other Department of the Interior; and eligible may apply for a permanent applicants. The appointing official may • Bureau of Reclamation of the U.S. position, at his or her current agency select any candidate from among the Department of the Interior. (or, in the case of a land management best qualified group of applicants, OPM is using the term ‘‘land eligible who is a former employee, at the consistent with the procedures in 5 CFR management eligible’’ to refer to a last land-management agency for which part 335, and part 330 for displaced Federal employee who would be in a the employee worked, provided the employees. position to take advantage of the employee is otherwise eligible and To implement the newly created opportunity the Act affords certain applies within a 2-year period following section of title 5 U.S.C. 9602, OPM is current or former employees. OPM is separation from that agency) when the proposing to add a new § 315.613 to defining ‘‘land management eligible’’ to hiring agency is accepting applications subpart F of part 315, title 5, Code of mean an individual who is serving or from individuals within the agency’s Federal Regulations, and revise part has served in a land management workforce under merit promotion 335, Promotion and Internal Placement. agency and who meets the following procedures. A land management eligible Below is section-by-section description conditions: may also apply for a permanent position of the proposed provisions. For current land management at any agency (the agencies are not OPM is proposing to add a new employees (i.e., individuals currently limited to land management agencies) § 315.613, as follows: employed in a land management when the hiring agency is accepting agency) the individual: applications from individuals outside Description of the Flexibility • must have been initially hired its workforce under the merit promotion Paragraph (a) of proposed new under a time-limited appointment in the procedures of the applicable agency. Id. § 315.613 explains the conditions under competitive service at the land at 9602(a). Lastly, the Act provides that which an agency may use this authority management agency; individuals appointed under these to allow a current or former land • must have served under 1 or more provisions acquire competitive status management eligible initially hired at a time-limited appointments at a land upon appointment and become career- land management agency under a time- management agency for a period or conditional employees, unless the limited appointment in the competitive periods totaling more than 24 months individual has otherwise completed the service to compete for a permanent without a break in service of 2 or more service requirements for career tenure. position at the land management agency years; and Id. at 9602(c). when it is accepting applications from • must have performed at an As noted above, the Act allows individuals within the agency’s acceptable level during each period of current and former employees of a land workforce under its merit promotion service. management agency who meet the procedures, or at any agency when the For former land management definition of a land management eligible hiring agency is accepting applications employees (i.e., individuals formerly (and are otherwise qualified) to apply from individuals from outside its own employed in a land management and compete for permanent positions in workforce under merit promotion agency) the individual: the competitive service when the hiring procedures. As a result of 5 U.S.C. 9602, • must have been initially hired agency is accepting applications from an agency must consider a land under a time-limited appointment in the outside its own workforce under merit management eligible, as defined by competitive service at the land promotion procedures. Thus, agencies these regulations, who applies for a management agency; • will be expected to consider land permanent position pursuant to the must have served under 1 or more management eligibles under such merit provisions of the Act and these time-limited appointments by a land promotion procedures in accordance regulations. management agency for a total period of with 5 CFR part 335 (and may more than 24 months without a break in subsequently appoint such an Definitions service of 2 or more years; individual, if selected). The Act also Paragraph (b) of proposed § 315.613 • must have performed at an allows a current or former employee of contains four definitions necessary for acceptable level throughout the service a land management agency, who meets the administration of this section. OPM period(s); the definition of a land management is proposing that ‘‘agency’’ has a • must apply for a position covered eligible (and is otherwise qualified), to meaning consistent with 5 U.S.C. 105, by these provisions within 2 years from apply and compete for a permanent or means a major subdivision or the end of the most recent date of position at such agency when the component of an entity defined in 5 separation; and • agency is accepting applications from U.S.C. 105 (e.g., the National Park must have been separated, with individuals within the agency’s own Service within the U.S. Department of respect to the most recent separation, for workforce under merit promotion the Interior). reasons other than misconduct or procedures. In that case, the employing For the convenience of the reader, performance. (or formerly employing) land OPM is proposing to include the A former land management management agency also will be definition of ‘‘land management employee’s eligibility for appointment expected to consider land management agency’’ as it is defined in the Act. For derives from the fact that the employee eligibles under such merit promotion these purposes, a ‘‘land management previously worked in a land procedures in accordance with part 335. agency’’ means the: management agency. For purposes of When considering applicants under the • Forest Service of the U.S. this regulation, a former employee who Act, agencies must adhere to their merit Department of Agriculture; meets the above requirements is treated promotion procedures and any • Bureau of Land Management of the as if the individual is a current applicable and enforceable collective U.S. Department of the Interior; employee of the land management bargaining agreement(s) into which the • National Park Service of the U.S. agency from which he or she was most agency may have entered. This means Department of the Interior; recently separated.

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OPM is proposing to define ‘‘time- term appointment as defined in 5 CFR agencies, and under which conditions limited appointment’’ as a temporary or part 316. (assuming the individual is otherwise The following graphics summarize eligible): who is eligible to apply, to which

Current agency Any Federal agency

Current land management employee ...... When the agency is accepting applications When the agency is accepting applications from individuals from within its own work- from individuals outside its own workforce force under merit promotion procedures. under merit promotion procedures.

Agency last separated from Any Federal agency

Former land management employee ...... When the agency is accepting applications When the agency is accepting applications from individuals from within its own work- from individuals outside its own workforce force under merit promotion procedures. under merit promotion procedures.

Conditions administration of this section. OPM is this rulemaking will not have any Paragraph (c) of proposed § 315.613 proposing that ‘‘land management negative impact on the rights, roles and specifies, in accordance with the Act, eligible’’ have the same meaning as the responsibilities of State, local, or tribal that, for the purposes of this Act, a definition contained in proposed governments. § 315.613(b)(3). hiring agency must waive requirements Civil Justice Reform as to age, in determining an applicant’s Regulatory Impact Analysis eligibility, unless the hiring agency can This regulation meets the applicable OPM has examined the impact of this prove that the requirement is essential standard set forth in Executive Order rulemaking as required by Executive to the performance of the duties of the 12988. Order 12866 and Executive Order position being filled. Unfunded Mandates Reform Act of 1995 13563, which directs agencies to assess Acquisition of Competitive Status all costs and benefits of available This rulemaking will not result in the For the convenience of the reader, regulatory alternatives and, if regulation expenditure by state, local, and tribal paragraph (d) of new § 315.613 repeats is necessary, to select regulatory governments, in the aggregate, or by the language from the Act which explains approaches that maximize net benefits private sector, of $100 million or more that these employees acquire (including potential economic, in any year and it will not significantly competitive status immediately upon environmental, public, health, and or uniquely affect small governments. appointment. safety effects, distributive impacts, and Therefore, no actions were deemed equity). A regulatory impact analysis necessary under the provisions of the Tenure on Appointment must be prepared for major rules with Unfunded Mandates Reform Act of For the convenience of the reader, economically significant effects of $100 1995. million or more in any one year. While paragraph (e) of new § 315.613 repeats Congressional Review Act language from the Act which specifies this rulemaking does not reach the that an employee appointed under these economic effect of $100 million or more This action pertains to agency provisions becomes a career-conditional under Executive Order 12866, this management, personnel, and employee unless the individual has rulemaking is still designated as a organization and does not substantially already completed the service ‘‘significant regulatory action,’’ under affect the rights or obligations of requirements for career tenure in Executive Order 12866 and has been nonagency parties and, accordingly, is accordance with 5 CFR part 315.201. reviewed by OMB. not a ‘‘rulemaking’’ as that term is used OPM is proposing to add a new by the Congressional Review Act Reducing Regulation and Controlling § 335.107 as follows: (Subtitle E of the Small Business Regulatory Costs Regulatory Enforcement Fairness Act of Agency Authority This rule is not an E.O. 13771 1996 (SBREFA)). Therefore, the Paragraph (a) of proposed § 335.107 regulatory action because this reporting requirement of 5 U.S.C. 801 explains the purpose of the Act, which rulemaking is related to agency does not apply. is to allow a land management eligible organization, management, or Paperwork Reduction Act at a land management agency to apply personnel. and compete for a permanent position at This rulemaking does not impose any any agency, when the hiring agency is Regulatory Flexibility Act new reporting or record-keeping accepting applications from individuals The Office of Personnel Management requirements subject to the Paperwork from outside its own workforce under certifies that this rulemaking will not Reduction Act. merit promotion procedures, or at the have a significant economic impact on List of Subjects in 5 CFR 315 and 335 eligible’s land management agency, a substantial number of small entities when such agency is accepting because it applies only to Federal Government employees. applications from individuals within agencies and employees. Office of Personnel Management. the agency’s workforce under its own Federalism Alexys Stanley, merit promotion procedures. The Office of Personnel Management Regulatory Affairs Analyst. Definitions has examined this rulemaking in Accordingly, OPM is proposing to Paragraph (b) of proposed § 335.107 accordance with Executive Order 13132, amend parts 315 and 335 of title 5, Code contains one definition for the Federalism, and have determined that of Federal Regulations, as follows:

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PART 315—CAREER AND CAREER qualified following competition under a (C) Performed at an acceptable level CONDITIONAL EMPLOYMENT merit promotion announcement open to throughout the service period(s); candidates within that agency’s (D) Applied for a position covered by ■ 1. The authority citation for part 315 workforce; and these provisions within 2 years after the is revised to read as follows: (ii) May appoint a land management individual’s most recent date of Authority: 5 U.S.C. 1302, 3301, and 3302; eligible who is a former employee of separation from a land management E.O. 10577, 3 CFR, 1954–1958 Comp. p. 218, that land management agency to a agency; and unless otherwise noted; and E.O. 13162. permanent position provided— (E) Was separated, with respect to the Secs. 315.601 and 315.609 also issued under (A) The land management eligible individual’s most recent separation, for 22 U.S.C. 3651 and 3652. Secs. 315.602 and applied for that position within the 2- reasons other than misconduct or 315.604 also issued under 5 U.S.C. 1104. Sec. year period following the most recent performance. For these purposes, an 315.603 also issued under 5 U.S.C. 8151. Sec. date of separation from a land individual under this paragraph is 315.605 also issued under E.O. 12034, 3 CFR, management agency; deemed an employee of the land 1978 Comp. p.111. Sec. 315.606 also issued (B) The land management agency under E.O. 11219, 3 CFR, 1964–1965 Comp. management agency from which the p. 303. Sec. 315.607 also issued under 22 from which the land management individual was most recently separated. U.S.C. 2560. Sec. 315.608 also issued under eligible most recently separated is the (4) Time-limited appointment means a E.O. 12721, 3 CFR, 1990 Comp. p. 293. Sec. same land management agency as the temporary or term appointment, in 315.610 also issued under 5 U.S.C. 3304(c). one making the appointment; and accordance with 5 CFR part 316. Sec. 315.611 also issued under 5 U.S.C. (C) The land management eligible was (c) Conditions. An agency considering 3304(f). Sec. 315.612 also under E.O. 13473. selected from among the best qualified a land management eligible must waive Sec 315.613 also issued under Pub. L. 114– following competition under a merit any age requirement unless it can prove 47, sec. 2(a) (Aug. 7, 2015), amended by promotion announcement open to that the requirement is essential to the Pub.L. 114–328, sec. 1135 (Dec. 23, 2016), as candidates within that agency’s performance of the duties of the codified at 5 U.S.C. 9602. Sec. 315.708 also workforce. issued under E.O. 13318, 3 CFR, 2004 Comp. position. (b) Definitions—(1) Agency has the (d) Acquisition of competitive status. p. 265. Sec. 315.710 also issued under E.O. meaning given in 5 U.S.C. 105, and may 12596, 3 CFR, 1978 Comp. p. 264. A person appointed under paragraph (a) also mean a major subdivision or of this section acquires competitive Subpart F—Career or Career component of an entity defined in 5 status automatically upon appointment. Conditional Appointment Under U.S.C. 105. (e) Tenure on appointment. An Special Authorities (2) Land management agency means appointment under paragraph (a) of this any of the following: section is career-conditional unless the ■ 2. Add § 315.613 to subpart F to read (i) The Forest Service of the U.S. appointee has already satisfied the as follows: Department of Agriculture; requirements for career tenure or is (ii) The Bureau of Land Management § 315.613 Appointment of current and exempted from the service requirement of the U.S. Department of the Interior; pursuant to § 315.201. former land management eligibles serving (iii) The National Park Service of the under time-limited appointments. U.S. Department of the Interior; (a) Appointment of land management PART 335—PROMOTION AND (iv) The Fish and Wildlife Service of INTERNAL PLACEMENT eligibles. (1) Any agency— the U.S. Department of the Interior; (i) May appoint a land management (v) The Bureau of Indian Affairs of the ■ 3. The authority citation for part 335 eligible who is a current employee of a U.S. Department of the Interior; and is revised to read as follows: land management agency to a (vi) The Bureau of Reclamation of the Authority: 5 U.S.C. 3301, 3302, 3330; E.O. permanent position provided the land U.S. Department of the Interior. 10577, 3 CFR 1954–1958 Comp., p. 218; 5 management eligible was selected from (3) Land management eligible means U.S.C. 3304(f); Pub. L. 106–117; Pub. L. 114– among the best qualified following either: 47, 2(a) (Aug. 7, 2015), as amended by Pub. competition under a merit promotion (i) An individual currently serving in L. 114–328, 1135 (Dec. 23, 2016), codified at announcement open to candidates a land management agency who: 5 U.S.C. 9602. outside of the hiring agency’s workforce: (A) Was initially hired under a time- and limited appointment in the competitive Subpart A—General Provisions (ii) May appoint a land management service in accordance with part 316; ■ 4. Add § 335.107 to subpart A to read eligible who is a former employee of a (B) Has served under 1 or more time- as follows: land management agency to a limited appointments by a land permanent position provided management agency for a period or § 335.107 Special selection procedures for (A) The land management eligible periods totaling more than 24 months certain land management eligibles under applied for that position within the 2- without a break in service of 2 or more merit promotion. year period following the most recent years; and A current or former land management date of separation from a land (C) Must have performed at an employee of a land management agency, management agency; and acceptable level during each period of who constitutes a land management (B) Was selected from among the best service; or eligible, as defined in § 315.613(b)(3), qualified following competition under a (ii) An individual who previously may, if otherwise qualified): merit promotion announcement open to served in a land management agency (a) Compete for a permanent position candidates outside of the hiring who: at any agency (including, but not agency’s workforce. (A) Was initially hired under a time- limited to, a land management agency) (2) In addition, a land management limited appointment in the competitive when that agency is accepting agency— service in accordance with part 316; applications from individuals outside (i) May appoint a land management (B) Served under 1 or more time- its own workforce under merit eligible who is a current employee of limited appointments by a land promotion procedures in the that agency to a permanent position management agency for a total period of competitive service; or provided the land management eligible more than 24 months without a break in (b) At the land management agency was selected from among the best service of 2 or more years; with which it was most recently an

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employee, in accordance with the 1904–AE83 in the subject line of the 1445 or by email: provisions of § 315.613, when the message. ApplianceStandardsQuestions@ agency is accepting applications from 3. Postal Mail: Appliance and ee.doe.gov. individuals within the agency’s Equipment Standards Program, U.S. SUPPLEMENTARY INFORMATION: workforce under its merit promotion Department of Energy, Building procedures. A land management eligible Technologies Office, Mailstop EE–5B, Table of Contents so selected will be given a career or 1000 Independence Avenue SW., I. Introduction career-conditional appointment under Washington, DC, 20585–0121. A. Authority and Background § 315.613. Telephone: (202) 287–1445. If possible, B. Rulemaking History II. Request for Information [FR Doc. 2020–09444 Filed 5–14–20; 8:45 am] please submit all items on a compact A. Scope and Definitions BILLING CODE 6325–39–P disc (CD), in which case it is not necessary to include printed copies. B. Test Procedure 1. Updates to Industry Standards 4. Hand Delivery/Courier: Appliance 2. Ambient Conditions and Equipment Standards Program, U.S. DEPARTMENT OF ENERGY 3. Combustion Airflow Adjustment Department of Energy, Building 4. Calculation of Steady-state Heat Loss for 10 CFR Part 430 Technologies Office, 950 L’Enfant Plaza, Condensing, Modulating Units SW, Suite 600, Washington, DC, 20024. 5. Provisions for Testing Step Modulating [EERE–2019–BT–TP–0037] Telephone: (202) 287–1445. If possible, Boilers please submit all items on a CD, in C. Other Test Procedure Topics RIN 1904–AE83 which case it is not necessary to include III. Submission of Comments Energy Conservation Program: Test printed copies. I. Introduction Procedure for Consumer Boilers No telefacsimilies (faxes) will be Consumer boilers are included in the accepted. For detailed instructions on list of ‘‘covered products’’ for which AGENCY: Office of Energy Efficiency and submitting comments and additional DOE is authorized to establish and Renewable Energy, Department of information on this process, see section amend energy conservation standards Energy. III of this document. and test procedures. (42 U.S.C. ACTION: Request for information. Docket: The docket for this activity, 6292(a)(5) 1 DOE’s test procedures for which includes Federal Register consumer boilers are prescribed at Title SUMMARY: The U.S. Department of notices, comments, and other 10 of the Code of Federal Regulations Energy (DOE) is initiating a data supporting documents/materials, is (CFR) part 430, subpart B, appendix N, collection process through this request available for review at http:// Uniform Test Method for Measuring the for information (RFI) to consider www.regulations.gov. All documents in Energy Consumption of Furnaces and whether to amend DOE’s test procedure the docket are listed in the http:// Boilers (Appendix N). The following for consumer boilers. Specifically, DOE www.regulations.gov index. However, sections discuss DOE’s authority to seeks data and information pertinent to some documents listed in the index, establish and amend test procedures for whether amended test procedures such as those containing information consumer boilers, as well as relevant would more accurately or fully comply that is exempt from public disclosure, background information regarding with the requirement that the test may not be publicly available. DOE’s consideration of test procedures procedure produces results that measure The docket web page can be found at: for this product. energy use during a representative http://www.regulations.gov/docket? average use cycle for the product, and D=EERE-2019-BT-TP-0037. The docket A. Authority and Background not be unduly burdensome to conduct. web page contains instructions on how The Energy Policy and Conservation DOE welcomes written comments from to access all documents, including Act, as amended (EPCA), 2 among other the public on any subject within the public comments, in the docket. See things, authorizes DOE to regulate the scope of this document (including section III for information on how to energy efficiency of a number of topics not raised in this RFI), as well as submit comments through http:// consumer products and certain the submission of data and other www.regulations.gov. industrial equipment. (42 U.S.C. 6291– relevant information. 3 FOR FURTHER INFORMATION CONTACT: Ms. 6317) Title III, Part B of EPCA, Public DATES: Written comments and Catherine Rivest, U.S. Department of Law 94–163 (42 U.S.C. 6291–6309, as information are requested and will be Energy, Office of Energy Efficiency and codified) established the Energy accepted on or before June 15, 2020. Renewable Energy, Building Conservation Program for Consumer ADDRESSES: Interested persons are Technologies Office, EE–5B, 1000 Products Other Than Automobiles, encouraged to submit comments using Independence Avenue SW., which sets forth a variety of provisions the Federal eRulemaking Portal at Washington, DC, 20585–0121. designed to improve energy efficiency. http://www.regulations.gov. Follow the Telephone: (202) 586–7335. Email: These products include consumer instructions for submitting comments. ApplianceStandardsQuestions@ boilers, which are the subject of this Alternatively, interested persons may ee.doe.gov. RFI. (42 U.S.C. 6292(a)(5)) submit comments, identified by docket Mr. Eric Stas, U.S. Department of The energy conservation program number EERE–2019–BT–TP–0037 and/ Energy, Office of the General Counsel, under EPCA consists essentially of four or RIN 1904–AE83, by any of the GC–33, 1000 Independence Avenue 1 Pursuant to 42 U.S.C. 6292(a)(5), ‘‘furnaces’’ are following methods: SW., Washington, DC 20585–0121. covered products, and the term ‘‘furnace’’ is defined 1. Federal eRulemaking Portal: http:// Telephone: (202) 586–5827. Email: in 42 U.S.C. 6291(23) to include electric boilers and www.regulations.gov. Follow the [email protected]. low pressure steam or hot water boilers. instructions for submitting comments. For further information on how to 2 All references to EPCA in this document refer 2. Email: to submit a comment or review other to the statute as amended through America’s Water Infrastructure Act of 2018, Public Law 115–270 ConsumerBoilers2019TP0037@ public comments and the docket, (Oct. 23, 2018). ee.doe.gov. Include docket number contact the Appliance and Equipment 3 For editorial reasons, upon codification in the EERE–2019–BT–TP–0037 and/or RIN Standards Program staff at (202) 287– U.S. Code, Part B was redesignated Part A.

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parts: (1) Testing, (2) labeling, (3) International Electrotechnical consumption in active, standby, and off Federal energy conservation standards, Commission (IEC), unless the current modes, but does not include electrical and (4) certification and enforcement test procedure already incorporates the energy consumption. For electric boilers procedures. Relevant provisions of standby mode and off mode energy AFUE accounts for electrical energy EPCA specifically include definitions consumption, or if such integration is consumption in active mode. Appendix (42 U.S.C. 6291), test procedures (42 technically infeasible. (42 U.S.C. N also includes provisions to determine U.S.C. 6293), labeling provisions (42 6295(gg)(2)(A)) If an integrated test the electrical energy consumption in U.S.C. 6294), energy conservation procedure is technically infeasible, DOE standby mode (PW,SB) and off mode standards (42 U.S.C. 6295), and the must prescribe separate standby mode (PW,OFF) for gas-fired, oil-fired, and authority to require information and and off mode energy use test procedures electric boilers. reports from manufacturers (42 U.S.C. for the covered product, if a separate DOE first established test procedures 6296). test is technically feasible. (Id.) for consumer boilers in a final rule Federal energy efficiency In addition, the Energy Independence published in the Federal Register on requirements for covered products and Security Act of 2007 (EISA 2007), May 10, 1978. 43 FR 20147. In a final established under EPCA generally Public Law 110–140, amended EPCA to rule published in the Federal Register supersede State laws and regulations require that, at least once every 7 years, on March 28, 1984, DOE incorporated concerning energy conservation testing, DOE evaluate test procedures for each by reference in the DOE test procedure labeling, and standards. (42 U.S.C. 6297) type of covered product, including the for furnaces and boilers, American DOE may, however, grant waivers of consumer boilers that are the subject of National Standards Institute/American Federal preemption in limited this RFI, to determine whether amended Society of Heating, Refrigerating, and circumstances for particular State laws test procedures would more accurately Air-Conditioning Engineers (ANSI/ or regulations, in accordance with the or fully comply with the requirements ASHRAE) Standard 103–82, ‘‘Methods procedures and other provisions of for the test procedures to not be unduly of Testing for Heating Seasonal EPCA. (42 U.S.C. 6297(d)) burdensome to conduct and be Efficiency of Central Furnaces and The Federal testing requirements reasonably designed to produce test Boilers’’ (ASHRAE 103–82). 49 FR consist of test procedures that results that reflect energy efficiency, 12148, 12149. DOE subsequently manufacturers of covered products must energy use, and estimated operating amended the test procedure for use as the basis for: (1) Certifying to costs during a representative average consumer boilers on a number of DOE that their products comply with use cycle or period of use. (42 U.S.C. occasions, including an amendment to the applicable energy conservation 6293(b)(1)(A)) If the Secretary update the ASHRAE 103 reference. 62 standards adopted pursuant to EPCA (42 determines, on his own behalf or in FR 26140, 26157 (May 12, 1997) U.S.C. 6295(s)), and (2) making response to a petition by any interested (incorporating by reference the 1993 representations about the efficiency of person, that a test procedure should be version of ASHARE 103, ‘‘Method of those consumer products (42 U.S.C. prescribed or amended, the Secretary Testing for Annual Fuel Utilization 6293(c)). Similarly, DOE must use these shall promptly publish in the Federal Efficiency of Residential Central test procedures to determine whether Register proposed test procedures and Furnaces and Boilers’’ (‘‘ASHRAE 103– the products comply with relevant afford interested persons an opportunity 1993’’)).4 standards promulgated under EPCA. (42 to present oral and written data, views, On October 20, 2010, DOE published U.S.C. 6295(s)) and arguments with respect to such a final rule in the Federal Register to Under 42 U.S.C. 6293, the statute sets procedures. The comment period on a amend its test procedure for consumer forth the criteria and procedures DOE proposed rule to amend a test procedure boilers to establish a method for must follow when prescribing or shall be at least 60 days but may not measuring the electrical energy use in amending test procedures for covered exceed 270 days. In prescribing or standby mode and off mode for gas-fired products. EPCA requires that any test amending a test procedure, the and oil-fired boilers in satisfaction of 42 procedures prescribed or amended Secretary shall take into account such U.S.C. 6295(gg)(2)(A). 75 FR 64621. The under this section must be reasonably information as the Secretary determines standby mode and off mode test designed to produce test results which relevant to such procedure, including procedure amendments incorporated by measure energy efficiency, energy use, technological developments relating to reference, and were based primarily on, or estimated annual operating cost of a energy use or energy efficiency of the provisions of the International covered product during a representative type (or class) of covered products Electrotechnical Commission (IEC) average use cycle or period of use and involved. (42 U.S.C. 6293(b)(2)). If DOE Standard 62301 (First Edition), not be unduly burdensome to conduct. determines that test procedure revisions ‘‘Household electrical appliances— (42 U.S.C. 6293(b)(3)) are not appropriate, DOE must publish Measurement of standby power.’’ Id. On If DOE determines that a test its determination not to amend the test December 31, 2012, DOE published a procedure amendment is warranted, it procedures. DOE is publishing this RFI final rule in the Federal Register that must publish proposed test procedures to collect data and information to updated the incorporation by reference in the Federal Register and offer the inform its decision in satisfaction of the of the standby mode and off mode test public an opportunity to present oral 7-year-lookback review requirement procedure provisions to refer to the and written comments on them. (42 specified in EPCA. (42 U.S.C. second (latest) edition of IEC Standard U.S.C. 6293(b)(2)) 6293(b)(1)(A)) 62301 (IEC 62301 (Second Edition)). 77 EPCA also requires that DOE amend FR 76831. On July 10, 2013, DOE its test procedures for all covered B. Rulemaking History products to integrate measures of As stated, the existing DOE test 4 On October 14, 1997, DOE published an interim standby mode and off mode energy procedure for consumer boilers is final rule to revise a provision concerning the consumption into the overall energy located at 10 CFR part 430, subpart B, insulation of the flue collector box in order to efficiency, energy consumption, or other appendix N and is used to determine ensure the updated test procedure would not affect the measured AFUE of existing furnaces and energy descriptor, taking into the annual fuel utilization efficiency boilers. 62 FR 53508. This interim final rule was consideration the most current versions (AFUE). For gas-fired and oil-fired subsequently adopted without change. 63 FR 9390 of Standards 62301 and 62087 of the boilers, AFUE accounts for fossil fuel (Feb. 24, 1998).

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published a final rule in the Federal In the following sections, DOE has A. Scope and Definitions Register that amended its test procedure also identified a variety of issues on In the context of ‘‘covered products,’’ for consumer boilers by adopting which it seeks input to aid in the EPCA includes boilers in the definition equations that provide manufacturers development of technical and economic of ‘‘furnace.’’ (42 U.S.C. 6291(23)) EPCA the option to omit the heat-up and cool- analyses regarding whether amended defines the term ‘‘furnace’’ to mean a down tests and still generate a valid test procedures for consumer boilers product which utilizes only single- AFUE measurement. 78 FR 41265.5 would be warranted. More specifically, phase electric current, or single-phase DOE most recently updated its test DOE seeks to determine whether electric current or DC current in procedure for consumer boilers in a amended test procedures for consumer final rule published in the Federal conjunction with natural gas, propane, boilers would more accurately or fully or home heating oil, and which: (1) Is Register on January 15, 2016 (January comply with the requirements in EPCA 2016 final rule). 81 FR 2628. The designed to be the principal heating that test procedures: (1) Be reasonably source for the living space of a January 2016 final rule amended the designed to produce test results which existing DOE test procedure for residence; (2) is not contained within reflect energy efficiency, energy use, or the same cabinet with a central air consumer boilers to improve the estimated annual operating cost during consistency and accuracy of test results conditioner whose rated cooling a representative average use cycle or capacity is above 65,000 Btu per hour; generated using the DOE test procedure period of use, and (2) not be unduly and to reduce test burden. In particular, (3) is an electric central furnace, electric burdensome to conduct. (42 U.S.C. boiler, forced-air central furnace, gravity the modifications relevant to consumer 6293(b)(3)) boilers included: (1) Clarifying the central furnace, or low pressure steam Further, the Department recently or hot water boiler; and (4) has a heat definition of the electrical power term, published an RFI regarding test ‘‘PE’’; (2) adopting a smoke stick test for input rate of less than 300,000 Btu per procedures across the full range of hour for electric boilers and low determining whether minimum default consumer products and commercial draft factors can be applied; (3) allowing pressure steam or hot water boilers and equipment that fall under its regulatory less than 225,000 Btu per hour for for optional measurement of condensate authority pursuant to EPCA. In that RFI, during establishment of steady-state forced-air central furnaces, gravity DOE noted that over time, many of central furnaces, and electric central conditions; (4) updating references to DOE’s test procedures have been the applicable installation and operation furnaces. (Id.) DOE has codified this amended to account for products’ and definition in its regulations at 10 CFR (I&O) manual and providing equipment’s increased functionality and clarifications for when the I&O manual 430.2. modes of operation. DOE’s intent in does not specify test set-up; and (5) The scope of the test procedure for issuing that RFI was to gather revising the AFUE reporting precision. consumer boilers is specified in section information to ensure that the inclusion DOE also revised the definitions of 1.0 of appendix N, which references of measurement provisions in its test several terms in the test procedure and section 2 of ASHRAE 103–1993. In procedures associated with such added an enforcement provision to relevant part, section 2 of ASHRAE 103– increased functionality has not provide a method of test for DOE to 1993 states that the standard applies to inadvertently compromised the determine compliance with the boilers with inputs less than 300,000 measurement of representative average 6 automatic means design requirement Btu/h ; having gas, oil, or electric input; use cycles or periods of use, and/or mandated by EISA 2007. 81 FR 2628, and intended for use in residential 2629–2630. made some test procedures applications. Further, ASHRAE 103– unnecessarily burdensome. 84 FR 9721 1993 applies to equipment that utilizes II. Request for Information (March 18, 2019). DOE seeks comment single-phase electric current or low- As an initial matter, DOE seeks on this issue as it specifically pertains voltage DC current. comment on whether there have been to the test procedure for the consumer Issue 1: DOE requests comment on changes in product testing methodology boilers that are the subject of this whether any consumer boilers are or new products on the market since the current RFI. DOE is also requesting available on the market that are covered last test procedure update that may comment on any opportunities to by the scope provision of ASHRAE 103– necessitate amendments to the test streamline and simplify testing 1993 but that are not covered by the procedure for consumer boilers. requirements for consumer boilers. definition of ‘‘furnace’’ as codified by Specifically, DOE seeks data and Additionally, DOE welcomes DOE at 10 CFR 430.2. Likewise, DOE information that could enable the comments on other issues relevant to requests comment on whether any agency to propose that the current test the conduct of this process that may not consumer boilers on the market are procedure produces results that are be specifically identified elsewhere in covered by DOE’s definition of representative of an average use cycle this document. In particular, DOE notes ‘‘furnace’’ that are not covered by the for the product and is not unduly that under section 1 of Executive Order scope provision of ASHRAE 103–1993. burdensome to conduct, and, therefore, 13771, ‘‘Reducing Regulation and DOE has defined several types of does not need amendment. DOE also Controlling Regulatory Costs,’’ consumer boilers, including ‘‘electric seeks information on whether an Executive Branch agencies such as DOE boilers,’’ ‘‘low pressure steam or hot existing private sector-developed test are directed to manage the costs water boilers,’’ ‘‘outdoor boilers,’’ and procedure would produce such results associated with the imposition of ‘‘weatherized warm air boilers.’’ These and should be adopted by DOE, either expenditures required to comply with terms are defined at 10 CFR 430.2 as entirely or by adopting only certain Federal regulations. See 82 FR 9339 follows: provisions of one or more private sector- (Feb. 3, 2017). Consistent with that developed tests. 1. Electric boiler means an electrically Executive Order, DOE encourages the powered furnace designed to supply low public to provide input on measures pressure steam or hot water for space heating 5 On August 30, 2013, DOE published a correction DOE could take to lower the cost of its application. A low-pressure steam boiler to the July 10, 2013 final rule in the Federal test procedure regulations applicable to Register which rectified errors in the redesignations operates at or below 15 pounds per square of affected subsections within section 10 of consumer boilers consistent with the appendix N. 78 FR 53625. requirements of EPCA. 6 Btu/h refers to British thermal units per hour.

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inch gauge (psig) steam pressure; a hot water specifying procedures for measuring modulating products, and stated that the boiler operates at or below 160 psig water standby mode and off mode electrical Department may further investigate ° pressure and 250 F water temperature. consumption. adopting it or a successor test procedure 2. Low pressure steam or hot water boiler in the future. Id. means an electric, gas, or oil-burning furnace 1. Updates to Industry Standards designed to supply low pressure steam or hot After the January 2016 final rule, water for space heating application. A low As discussed, ASHRAE 103–1993 is ASHRAE 103 was once again updated to pressure steam boiler operates at or below 15 referenced throughout Appendix N for the current version (i.e., ASHRAE 103– pounds psig steam pressure; a hot water various testing requirements pertaining 2017). DOE has identified the following boiler operates at or below 160 psig water to determination of the AFUE of substantive differences between pressure and 250 °F water temperature. consumer boilers. Appendix N also ASHRAE 103–1993 and ASHRAE 103– 3. Outdoor furnace or boiler is a furnace or references certain sections of IEC 62301 2017 that pertain to consumer boilers: boiler normally intended for installation out- (Second Edition), related to determining of-doors or in an unheated space (such as an 1. ASHRAE 103–2017 includes the electrical standby mode and off calculations for determining the average on- attic or a crawl space). mode energy consumption, and 4. Weatherized warm air furnace or boiler time and off-time per cycle for two-stage and means a furnace or boiler designed for American Society for Testing and modulating boilers, rather than assigning installation outdoors, approved for resistance Materials (ASTM) Standard D2156–09 fixed values as in ASHRAE 103–1993; to wind, rain, and snow, and supplied with (Reapproved 2013), ‘‘Standard Test 2. ASHRAE 103–2017 includes its own venting system. Method for Smoke Density in Flue calculations for the part-load efficiency at Issue 2: DOE requests comment on the Gases from Burning Distillate Fuels’’ maximum and reduced fuel input rates of definitions currently applicable to (ASTM D2156–09) for adjusting oil condensing two-stage and modulating boilers consumer boilers and whether any of burners. when the heat up and cool down tests are The following explains the omitted as per section 9.10, while ASHRAE these definitions need to be revised, and 103–1993 does not include these if so, how. Please provide justification developments to these industry test calculations; 7 for why any suggested change is standards since their incorporation by 3. ASHRAE 103–2017 increases post-purge necessary. reference in the DOE consumer boilers time from less than 5 seconds in ASHRAE In addition to the definitions included test procedure. IEC 62301 (Second 103–1993 to less than or equal to 30 seconds in 10 CFR 430.2, section 2.0 of Edition), which is currently for determining whether section 9.10, Appendix N incorporates by reference incorporated by reference, is still the ‘‘Optional Test Procedures for Conducting the definitions in section 3 of ASHRAE most recent version. ASTM D2156–09 Furnaces and Boilers that have no OFF- 103–1993, with modifications and was reapproved in 2018, and, therefore, Period Flue Loss,’’ is applicable for units the most up-to-date version of the with no measurable airflow through the additions as specified in that section of combustion chamber during the burner off- Appendix N. Sections 2.1 through 2.13 standard is ASTM D2156–09 period, and it also makes the application of of Appendix N provide additional (Reapproved 2018). The 2018 the default draft factor values in section 9.10 definitions relevant to the consumer reapproved version does not contain a requirement rather than optional; boilers test procedure. any changes from ASTM D2156–09. 4. ASHRAE 103–2017 changes the method Issue 3: DOE seeks comment on ASHRAE 103 has been updated twice for determining national average burner whether the definitions for consumer since the version presently incorporated operating hours (BOH), average annual fuel boilers in section 2.0 through section by reference (ASHRAE 103–1993) was energy consumption (EF), and average annual 2.13 of Appendix N, including those adopted. Specifically, updated versions auxiliary electrical energy consumption of the standard were published in 2007 (EAE), especially for two-stage and from ASHRAE 103–1993 that are modulating products, based on a 2002 study incorporated by reference, are still (ASHRAE 103–2007) and 2017 from NIST. appropriate. If any of the definitions are (ASHRAE 103–2017) and included Issue 4: DOE requests comment on the no longer appropriate, DOE seeks input substantive changes. DOE’s initial differences between ASHRAE 103–1993 on how they should be amended and review of the differences between these and ASHRAE 103–2017. In particular, why. versions of ASHRAE 103 are discussed in detail in the following paragraphs. DOE seeks information on whether any B. Test Procedure ASHRAE 103 provides procedures for differences not identified by DOE above Appendix N includes provisions for determining the AFUE of consumer would impact the consumer boiler test scope (section 1.0, as discussed in boilers (and furnaces). As mentioned procedure. section II.A of this document), previously, ASHRAE 103–1993 has been Issue 5: DOE requests information on definitions (section 2.0, as discussed in updated multiple times since 1993. In whether the differences identified above section II.A of this document), the rulemaking that culminated in the would impact the measured AFUE, and classifications (section 3.0), January 2016 final rule, DOE initially if so, DOE requests test data requirements (section 4.0), proposed to incorporate by reference the demonstrating the degree of such instrumentation (section 5.0), apparatus most recent version of ASHRAE 103 impact. (section 6.0), testing conditions (section available at the time (i.e., ASHRAE 103– Issue 6: DOE is also interested on 7.0), test procedure (section 8.0), 2007), but ultimately declined to adopt receiving comment on whether the nomenclature (section 9.0), and the proposal in the final rule based on updates to ASHRAE 103 are appropriate calculations (section 10.0). concerns about the impact that changing for adoption in the Federal test Each of the sections in Appendix N to ASHRAE 103–2007 would have on procedure for consumer boilers, references a corresponding section in AFUE ratings of products distributed in whether the changes allow for more ASHRAE 103–1993. Many of the commerce at that time. 81 FR 2628, 7 DOE published a final rule in the Federal sections in Appendix N also include 2632–2633 (Jan. 15, 2016). DOE stated Register on July 10, 2013 that added equations to additions and/or modifications to the that further evaluation was needed to Appendix N to calculate the part-load efficiencies ASHRAE 103–1993 test method to determine the potential impacts of at the maximum input rate and reduced input rates provide additional specifications and ASHRAE 103–2007 on the measured for two-stage and modulating condensing furnaces and boilers when the manufacturer chooses to omit make changes that DOE had previously AFUE of boilers. Id. DOE theorized that the heat-up and cool-down tests under the test determined to be otherwise necessary ASHRAE 103–2007 might better account procedure. 78 FR 41265. The equations in ASHRAE for the Federal test procedure, such as for the operation of two-stage and 103–2017 are identical to those in Appendix N.

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representative energy efficiency ratings, 2628, 2635–2636 (Jan. 15, 2016); see ‘‘Heating Seasonal Efficiency, Steady- and whether the changes would also 80 FR 12876, 12883, 12906 (March State Efficiency, and AFUE for increase test burden. 11, 2015). DOE considered whether Noncondensing and Non-modulating such a change could improve Gas or Oil Furnaces and Boilers,’’ of 2. Ambient Conditions consistency in burner airflow settings ASHRAE 103–1993 provides direction The consumer boilers test procedure during testing. However, after for non-condensing, non-modulating specifies that the ambient air considering comments on this proposal, boilers.) As a result, AFUE for temperature during testing must be DOE determined that further study was condensing, modulating boilers is based ° ° between 65 F and 100 F for non- needed to determine how such a change on calculations that rely on a LC,SS value condensing boilers, and 65 °F and 85 °F would impact AFUE ratings. 81 FR that is based on steady-state efficiency for condensing boilers. Section 7.0 of 2628, 2636 (Jan. 15, 2016). values calculated for non-condensing, Appendix N and 8.5.2 of ASHRAE 103– Issue 8: DOE is requesting comment non-modulating boilers. ASHRAE 103– 1993. In addition, the relative humidity on whether more specific instructions 2017 presents a similar issue. cannot exceed 80 percent during for setting the excess air ratio, flue O2 DOE notes that ASHRAE 103–1993 condensate measurement. Section 8.0 of percentage, and/or flue CO2 percentage provides an equation for calculating the Appendix N and 9.2 of ASHRAE 103– should be provided in the consumer EffySS of condensing boilers in section 1993. In the January 2016 final rule, boilers test procedure, and if so, what 11.3.7.3 of that document, which relies, DOE addressed concerns regarding the those instructions should entail. DOE is in part, on the value of LC,SS. As noted, ambient air temperature and humidity particularly interested in understanding calculating LC,SS at maximum and ranges allowed by the test method. 81 whether such a change would improve reduced input rates requires values for FR 2628, 2638 (Jan. 15, 2016). In the representativeness of the test the EffySS at maximum and reduced particular, some commenters raised method, and whether it would impact input rates, which if applying the concerns that the wide range of test burden. equation in section 11.3.7.3 of ASHRAE allowable ambient conditions could 103–1993, ultimately depend upon the 4. Calculation of Steady-state Heat Loss impact test results, and that the ranges values of LC,SS at maximum and reduced were initially developed based on for Condensing, Modulating Units input rates. As such, a circular reference laboratory conditions that are now A determination of AFUE for would result from application of section outdated, such that more closely condensing, modulating boilers using 11.3.7.3 (calculation of EffySS of controlled conditions may now be ASHRAE 103–1993 relies on a series of condensing boilers) as opposed to achievable. Id. In the January 2016 final intermediate values and equations. One application of section 11.2.7 rule, DOE stated that the impact of intermediate value is the steady-state (calculation of EffySS of non-condensing ambient conditions on AFUE values heat loss due to condensate (LC,SS). For boilers), as explicitly provided in warranted further study, but that DOE condensing, modulating units, section ASHRAE 103–1993.9 did not have adequate data to justify 11.5.7.2 of ASHRAE 103–1993 provides Industry developed a computer changing the test procedure to narrow instruction for calculating LC,SS for both program to calculate AFUE based on the ambient temperature or humidity the maximum and reduced fuel input ASHRAE 103–1993—‘‘AFUE v1.2’’ (last 10 ranges. Id. rates. To determine LC,SS at the updated April 2004). When Issue 7: DOE is requesting comment maximum and reduced fuel input rates, calculating LC,SS for condensing boilers, and data on the effects of ambient a number of other values must first be the computer program uses an approach temperature and relative humidity on calculated, including the steady-state similar to one discussed in the prior AFUE results. DOE is particularly efficiency at maximum fuel input rate paragraph, in which section 11.3.7.3 of interested in whether the current ranges (EffySS), and the steady-state efficiency ASHRAE 103–1993 is used for 8 of allowable conditions adversely at reduced fuel input rate (EffySS,R). In calculating EffySS. To address the impact the representativeness of AFUE following the progression of equations circular reference that would result from values or repeatability of AFUE testing, to calculate LC,SS, ASHRAE 103–1993 applying section 11.3.7.3 of ASHRAE and whether a narrower range of directs EffySS and EffySS,R to be 103–1993, AFUE v1.2 appears to apply allowable ambient conditions would calculated according to section 11.4.7 of an iterative process that uses initial increase testing burden, and if so, what that document, which in turn references reference values to determine the values that range should be. the equation at section 11.2.7 of that of TOA,H and TOA,R used in the 3. Combustion Airflow Adjustment document. Section 11.2.7 of ASHRAE 103–1993 provides the calculation of 9 Section 11.5.7.2 of ASHRAE 103–1993 provides In the course of the rulemaking for the instruction for calculating LC,SS at the maximum EffySS for non-condensing, non- January 2016 final rule, DOE proposed and reduced input rate (LC,SS,H and LC,SS,R) using modulating boilers. (Section 11.2, specifying that the excess air ratio, flue the average outdoor air temperature at maximum input (TOA,H) and average outdoor air temperature oxygen (O2) percentage, or flue carbon 8 Specifically, section 11.5.7.2 of ASHRAE 103– at reduced input (TOA,R), respectively. TOA,H and dioxide (CO2) percentage be within the 1993 provides instruction to calculate LC,SS as TOA,R are calculated using section 11.4.8.4 of middle 30th percentile of the acceptable defined in section 11.3.7.2 of ASHRAE 103–1993, ASHRAE 103–1993 and are dependent on TC as range specified in the I&O manual. In for both the maximum and reduced input rates, calculated in section 11.4.8.5 of ASHRAE 103– 1993. T is based in part on Q and Q as absence of a specified range in the I&O using the average outdoor air temperature at C OUT OUT,R maximum and reduced input rates (‘‘TOA,H’’ and determined in sections 11.4.8.1.1 and 11.4.8.1.2 of manual, DOE proposed requiring the ‘‘TOA,R,’’ respectively). TOA,H and TOA,R are ASHRAE 103–1993. QOUT and QOUT,R are based in combustion airflow to be adjusted to determined according to section 11.4.8.4 of part on the values for EffySS and EffySS,R. To provide between 6.9 percent and 7.1 ASHRAE 103–1993 and are based on the balance calculate EffySS and EffySS,R according to section point temperature (TC). TC is determined using an 11.3.7.3 of ASHRAE 103–1993, which pertains to percent dry flue gas O2, or the lowest equation in section 11.4.8.5 of ASHRAE 103–1993, the steady-state efficiency for condensing boilers, dry flue gas O2 percentage that produces and is in part based on the heating capacity at values for LC,SS,H and LC,SS,R are required. 10 a stable flame, no carbon deposits, and maximum fuel input rate (QOUT) and the heating The computer program was initially developed an air-free flue gas CO ratio below 400 capacity at reduced fuel input rate (QOUT,R). QOUT by the Gas Appliance Manufacturers Association and QOUT,R are determined according to sections (GAMA). In 2008, GAMA merged with the Air- parts per million during the steady-state 11.4.8.1.1 and 11.4.8.1.2 of ASHRAE 103–1993 and conditioning and Refrigeration Institute (ARI) to test described in section 9.1 of ASHRAE are based in part on the EffySS and EffySS,R, form what is now the Air-conditioning, Heating, 103–2007, whichever is higher. 81 FR respectively. and Refrigeration Institute (AHRI).

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11 calculation of LC,SS. Use of AFUE v1.2 103–2017 contains similar provisions Additionally, DOE requests comment may produce a different AFUE for modulating boilers as ASHRAE 103– on whether the existing test procedures measurement than use of the test 1993, except that (as noted in section limit a manufacturer’s ability to provide procedure as explicitly provided in II.B.1 of this RFI) calculations are used additional features to purchasers of ASHRAE 103–1993 (i.e., relying on a to determine the average on-time and consumer boilers. DOE particularly LC,SS value that is based on steady-state off-time per cycle, rather than assigning seeks information on how the test efficiency values calculated for non- fixed values as is done in ASHRAE 103– procedures could be amended to reduce condensing, non-modulating boilers). 1993. the cost of new or additional features However, a cursory comparison between Issue 10: DOE requests comment on and make it more likely that such the AFUE v1.2 methodology and the whether the existing provisions for features are included on consumer wording of ASHRAE 103–1993 as testing step modulating boilers boilers, while still meeting the explicitly provided suggests that the appropriately reflect the performance of requirements of EPCA. variation in final AFUE measurements step modulating boilers. If not, DOE DOE also requests comments on any would be so small as to not affect the seeks specific recommendations on the potential amendments to the existing rounded AFUE value. changes that would be necessary to test procedures that would address Issue 9: DOE requests comment on the make the test procedure more impacts on manufacturers, including direction in ASHRAE 103–1993 to rely representative for such products. small businesses. on certain values calculated for non- Finally, DOE recently published an condensing, non-modulating boilers to C. Other Test Procedure Topics RFI on the emerging smart technology determine the AFUE of condensing, In addition to the issues identified appliance and equipment market. 83 FR modulating boilers. DOE requests earlier in this document, DOE welcomes 46886 (Sept. 17, 2018). In that RFI, DOE sought information to better understand comment and information on whether comment on any other aspect of the market trends and issues in the the calculations should be modified to existing test procedures for consumer emerging market for appliances and provide results that are more boilers. As noted, DOE recently issued commercial equipment that incorporate representative of the average use of an RFI regarding covered products and smart technology. DOE’s intent in condensing, modulating boilers, and if equipment generally, to seek more issuing the RFI was to ensure that DOE so, how the calculations should be information on whether its test did not inadvertently impede such modified. procedures are reasonably designed, as innovation in fulfilling its statutory required by EPCA, to produce results 5. Provisions for Testing Step obligations in setting efficiency that measure the energy use or Modulating Boilers standards for covered products and Appendix N includes a number of efficiency of a product during a equipment. DOE seeks comments, data, specific provisions for consumer boilers representative average use cycle or and information on the issues presented with step modulating controls. For period of use. 84 FR 9721 (March 18, in the emerging smart technology RFI as example, the steady-state test is 2019). DOE seeks comment on this issue they may be applicable to the consumer conducted at both the maximum and as it specifically pertains to the test boilers that are the subject of this RFI. reduced inputs (referencing section 9.1 procedure for the consumer boilers that of ASRHAE 103–1993); the cool-down are the subject of this current RFI. III. Submission of Comments test is conducted after steady-state As noted previously, DOE also DOE invites all interested parties to conditions have been reached at the requests comments on whether potential submit in writing by June 15, 2020, reduced input rate (referencing section amendments based on the issues comments and information on matters 9.5.2.4 of ASRHAE 103–1993), and the discussed would result in a test addressed in this document and on heat-up test is conducted at the reduced procedure that is unduly burdensome to other matters relevant to DOE’s fuel input rate (referencing section conduct, particularly in light of any new consideration of amended test 9.6.2.1 of ASRHAE 103–1993). In products on the market since the last procedures for consumer boilers. These addition, both the optional tracer gas test procedure update. If commenters comments and information will aid in test and the measurement of condensate believe that any such potential the development of a test procedure under cyclic conditions, when amendments, if adopted, would result NOPR for consumer boilers, if DOE conducted, are performed at the reduced in a procedure that is, in fact, unduly determines that amended test input (referencing sections 9.7.5 and 9.8 burdensome to conduct, DOE seeks procedures may be appropriate for these of ASHRAE 103–1993, respectively). information on whether an existing products. After the close of the Measurements taken during the testing private sector-developed test procedure comment period, DOE will review the at maximum and/or reduced inputs (as would be more appropriate or other public comments received and may applicable) for each of the tests are used avenues for reducing the identified begin collecting data and conducting in the calculation of AFUE. ASHRAE burdens while advancing improvements analyses as appropriate. to the consumer boilers test procedure. Submitting comments via http:// 11 The iterative calculation process starts with DOE also requests comment on the www.regulations.gov. The http:// reference values for the outdoor average air benefits and burdens of adopting any www.regulations.gov web page requires temperatures at TOA,H and TOA,R. The program proceeds to calculate all of the other variables in the industry/voluntary consensus-based or you to provide your name and contact circular reference based on the reference values other appropriate test procedure, information. Your contact information until arriving at new values for TOA,H and TOA,R. without modification. As discussed in will be viewable to DOE Building The newly calculated values for TOA,H and TOA,R are section II.B.1 of this RFI, ASHRAE 103– Technologies staff only. Your contact compared to the initial reference values, and if they are not within 1 degree of the reference values, the 2017 includes procedures for information will not be publicly calculations in the circular reference are repeated determining the annual fuel utilization viewable except for your first and last using the new values for TOA,H and TOA,R as the new efficiency of residential central boilers; names, organization name (if any), and reference values. The calculation cycle repeats until however, it does not include procedures submitter representative name (if any). the reference values are within 1 degree of the If your comment is not processed calculated values, at which time the iterations stop for calculating the electrical standby and the values for TOA,H and TOA,R from the last mode and off mode energy properly because of technical round of calculations are used. consumption. difficulties, DOE will use this

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information to contact you. If DOE and other information to DOE. If you contact Appliance and Equipment cannot read your comment due to submit via postal mail or hand delivery/ Standards Program staff at (202) 287– technical difficulties and cannot contact courier, please provide all items on a 1445 or via email at you for clarification, DOE may not be CD, if feasible, in which case it is not ApplianceStandardsQuestions@ able to consider your comment. necessary to submit printed copies. No ee.doe.gov. However, your contact information telefacsimiles (faxes) will be accepted. Signing Authority will be publicly viewable if you include Comments, data, and other it in the comment or in any documents information submitted to DOE This document of the Department of attached to your comment. Any electronically should be provided in Energy was signed on February 25, information that you do not want to be PDF (preferred), Microsoft Word or 2020, by Alexander N. Fitzsimmons, publicly viewable should not be Excel, WordPerfect, or text (ASCII) file Deputy Assistant Secretary for Energy included in your comment, nor in any format. Provide documents that are not Efficiency Energy Efficiency and document attached to your comment. secured, written in English, and free of Renewable Energy, pursuant to Persons viewing comments will see only any defects or viruses. Documents delegated authority from the Secretary first and last names, organization should not contain special characters or of Energy. That document with the names, correspondence containing any form of encryption, and, if possible, original signature and date is comments, and any documents they should carry the electronic maintained by DOE. For administrative submitted with the comments. signature of the author. purposes only, and in compliance with Do not submit to http:// Campaign form letters. Please submit requirements of the Office of the Federal www.regulations.gov information for campaign form letters by the originating Register, the undersigned DOE Federal which disclosure is restricted by statute, organization in batches of between 50 to Register Liaison Officer has been such as trade secrets and commercial or 500 form letters per PDF or as one form authorized to sign and submit the financial information (hereinafter letter with a list of supporters’ names document in electronic format for referred to as Confidential Business compiled into one or more PDFs. This publication, as an official document of Information (CBI)). Comments reduces comment processing and the Department of Energy. This submitted through http:// posting time. administrative process in no way alters www.regulations.gov cannot be claimed Confidential Business Information. the legal effect of this document upon as CBI. Comments received through the Pursuant to 10 CFR 1004.11, any person publication in the Federal Register. website will waive any CBI claims for submitting information that he or she Signed in Washington, DC, on April 29, the information submitted. For believes to be confidential and exempt 2020. information on submitting CBI, see the by law from public disclosure should Treena V. Garrett, Confidential Business Information submit via email, postal mail, or hand Federal Register Liaison Officer, U.S. section. delivery/courier two well-marked Department of Energy. DOE processes submissions made copies: One copy of the document [FR Doc. 2020–09416 Filed 5–14–20; 8:45 am] through http://www.regulations.gov marked ‘‘confidential’’ including all the BILLING CODE 6450–01–P before posting. Normally, comments information believed to be confidential, will be posted within a few days of and one copy of the document marked being submitted. However, if large ‘‘non-confidential’’ with the information volumes of comments are being believed to be confidential deleted. NUCLEAR REGULATORY processed simultaneously, your Submit these documents via email or on COMMISSION comment may not be viewable for up to a CD, if feasible. DOE will make its own several weeks. Please keep the comment determination about the confidential 10 CFR Chapter I tracking number that http:// status of the information and treat it [NRC–2018–0142] www.regulations.gov provides after you according to its determination. have successfully uploaded your It is DOE’s policy that all comments Backfitting, Forward Fitting, and Issue comment. may be included in the public docket, Finality Guidance Submitting comments via email, hand without change and as received, delivery/courier, or postal mail. including any personal information AGENCY: Nuclear Regulatory Comments and documents submitted provided in the comments (except Commission. via email, hand delivery/courier, or information deemed to be exempt from ACTION: Draft NUREG; request for postal mail also will be posted to http:// public disclosure). comment; extension of comment period. www.regulations.gov. If you do not want DOE considers public participation to your personal contact information to be be a very important part of the process SUMMARY: On March 23, 2020, the U.S. publicly viewable, do not include it in for developing test procedures and Nuclear Regulatory Commission (NRC) your comment or any accompanying energy conservation standards. DOE issued for public comment draft documents. Instead, provide your actively encourages the participation NUREG–1409, ‘‘Backfitting Guidelines,’’ contact information in a cover letter. and interaction of the public during the Revision 1. The public comment period Include your first and last names, email comment period in each stage of this was originally scheduled to close on address, telephone number, and process. Interactions with and between May 22, 2020. In recognition of the optional mailing address. The cover members of the public provide a impacts of the current COVID–19 public letter will not be publicly viewable as balanced discussion of the issues and health emergency (PHE) across the long as it does not include any assist DOE in the process. Anyone who nation, the NRC has decided to extend comments. wishes to be added to the DOE mailing the public comment period to allow Include contact information each time list to receive future notices and more time for members of the public to you submit comments, data, documents, information about this process should develop and submit comments.

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DATES: The due date of comments ‘‘Begin Web-based ADAMS Search.’’ For For the Nuclear Regulatory Commission. requested in the document published on problems with ADAMS, please contact Jennifer L. Dixon-Herrity, March 23, 2020 (85 FR 16278) is the NRC’s Public Document Room (PDR) Chief, Plant Licensing Branch IV, Division extended. Comments should be filed no reference staff at 1–800–397–4209, 301– of Operating Reactor Licensing, Office of later than July 22, 2020. Comments 415–4737, or by email to pdr.resource@ Nuclear Reactor Regulation. received after this date will be nrc.gov. The ADAMS accession number [FR Doc. 2020–09654 Filed 5–14–20; 8:45 am] considered if it is practical to do so, but for each document referenced (if it is BILLING CODE 7590–01–P the Commission is able to ensure available in ADAMS) is provided the consideration only for comments first time that it is mentioned in this received before this date. The NRC staff document. FEDERAL TRADE COMMISSION will continue to monitor the COVID–19 PHE to determine if an additional B. Submitting Comments 16 CFR Chapter I extension may be warranted. Please include Docket ID NRC–2018– Semiannual Regulatory Agenda; ADDRESSES: You may submit comments 0142 in your comment submission. Withdrawal by any of the following methods: The NRC cautions you not to include • Federal Rulemaking Website: Go to AGENCY: Federal Trade Commission. identifying or contact information that https://www.regulations.gov and search ACTION: Proposed rule; Withdrawal. for Docket ID NRC–2018–0142. Address you do not want to be publicly questions about NRC docket IDs in disclosed in your comment submission. SUMMARY: The Federal Trade Regulations.gov to Jennifer Borges; The NRC will post all comment Commission (FTC or Commission) is telephone: 301–287–9127; email: submissions at https:// withdrawing the proposed rule titled, [email protected]. For technical www.regulations.gov as well as enter the ‘‘Semiannual Regulatory Agenda,’’ questions, contact the individuals listed comment submissions into ADAMS. published on May 7, 2020. This agenda in the FOR FURTHER INFORMATION The NRC does not routinely edit will be incorporated in the upcoming CONTACT section of this document. comment submissions to remove government-wide Unified Agenda of • Mail comments to: Office of identifying or contact information. Federal Regulatory and Deregulatory Administration, Mail Stop: TWFN–7– If you are requesting or aggregating Actions. A60M, U.S. Nuclear Regulatory comments from other persons for DATES: The FTC is withdrawing the Commission, Washington, DC 20555– submission to the NRC, then you should proposed rule published May 7, 2020 0001, ATTN: Program Management, inform those persons not to include (85 FR 27191) as of May 15, 2020. Announcements and Editing Staff. identifying or contact information that ADDRESSES: Federal Trade Commission, For additional direction on obtaining they do not want to be publicly 600 Pennsylvania Avenue NW, information and submitting comments, disclosed in their comment submission. Washington, DC 20580. see ‘‘Obtaining Information and Your request should state that the NRC Submitting Comments’’ in the FOR FURTHER INFORMATION CONTACT: G. does not routinely edit comment SUPPLEMENTARY INFORMATION section of Richard Gold, Attorney, Federal Trade this document. submissions to remove such information Commission, 600 Pennsylvania Avenue before making the comment NW, Washington, DC 20580; telephone FOR FURTHER INFORMATION CONTACT: Tim submissions available to the public or number: (202) 326–3355; email address: Reed, telephone: 301–415–1462, email: entering the comment into ADAMS. [email protected]. [email protected]; or Audrey Klett, SUPPLEMENTARY INFORMATION: None. telephone: 301–415–0489, email: II. Discussion [email protected]. Both are staff of Dated: May 8, 2020. the Office of Nuclear Reactor On March 23, 2020, the NRC issued April J. Tabor, Regulation, U.S. Nuclear Regulatory for public comment draft NUREG–1409, Acting Secretary. Commission, Washington, DC 20555– ‘‘Backfitting Guidelines,’’ Revision 1 [FR Doc. 2020–10301 Filed 5–14–20; 8:45 am] 0001. (ADAMS Accession No. ML18109A498). BILLING CODE 6750–01–P This draft NUREG provides guidance on SUPPLEMENTARY INFORMATION: the implementation of the backfitting I. Obtaining Information and and issue finality provisions of the DEPARTMENT OF JUSTICE Submitting Comments NRC’s regulations and the NRC’s A. Obtaining Information forward fitting policy in accordance Drug Enforcement Administration with Management Directive and Please refer to Docket ID NRC–2018– Handbook 8.4, ‘‘Management of 21 CFR Part 1308 0142 when contacting the NRC about Backfitting, Forward Fitting, Issue [Docket No. DEA–509] the availability of information for this Finality, and Information Requests’’ action. You may obtain publicly- dated September 20, 2019 (ADAMS available information related to this Schedules of Controlled Substances: Accession No. ML18093B087). The Placement of para- action by any of the following methods: public comment period was originally • Federal Rulemaking Website: Go to Methoxymethamphetamine (PMMA) in scheduled to close on May 22, 2020. In https://www.regulations.gov and search Schedule I recognition of the impacts of the current for Docket ID NRC–2018–0142. COVID–19 PHE across the nation, the AGENCY: Drug Enforcement • NRC’s Agencywide Documents NRC has decided to extend the public Administration, Department of Justice. Access and Management System comment period on this document until ACTION: Notice of proposed rulemaking. (ADAMS): You may obtain publicly- July 22, 2020, to allow more time for available documents online in the SUMMARY: The Drug Enforcement ADAMS Public Documents collection at members of the public to develop and Administration proposes placing 1-(4- https://www.nrc.gov/reading-rm/ submit comments. methoxyphenyl)-N-methylpropan-2- adams.html. To begin the search, select Dated: April 30, 2020. amine (para-

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methoxymethamphetamine, PMMA), electronic comment, it should be sent business information identified as including its salts, isomers, and salts of via regular or express mail to: Drug directed above will be made publicly isomers whenever the existence of such Enforcement Administration, Attn: DEA available in redacted form. If a comment salts, isomers, and salts of isomers is Federal Register Representative/DRW, has so much confidential business possible, in schedule I of the Controlled 8701 Morrissette Drive, Springfield, information or personal identifying Substances Act. This action is being Virginia 22152. information that it cannot be effectively taken to enable the United States to • Hearing requests: All requests for redacted, all or part of that comment meet its obligations under the 1971 hearing and waivers of participation may not be made publicly available. Convention on Psychotropic must be sent to: Drug Enforcement Comments posted to http:// Substances. 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Federal Register Representative/DPW, www.regulations.gov for easy reference. 8701 Morrissette Drive, Springfield, DATES: Comments must be submitted Request for Hearing or Waiver of Virginia 22152. electronically or postmarked on or Participation in a Hearing FOR FURTHER INFORMATION CONTACT: before June 15, 2020. Pursuant to 21 U.S.C. 811(a), this Interested persons may file a request Scott A. Brinks, Regulatory Drafting and Policy Support Section, Diversion action is a formal rulemaking ‘‘on the for hearing or waiver of hearing record after opportunity for a hearing.’’ pursuant to 21 CFR 1308.44 and in Control Division, Drug Enforcement Administration; Mailing Address: 8701 Such proceedings are conducted accordance with 21 CFR 1316.45 and/or pursuant to the provisions of the 1316.47, as applicable. Requests for Morrissette Drive, Springfield, Virginia 22152; Telephone: (571) 362–8209. Administrative Procedure Act (APA), 5 hearing and waivers of an opportunity U.S.C. 551–559. 21 CFR 1308.41– SUPPLEMENTARY INFORMATION: for a hearing or to participate in a 1308.45; 21 CFR part 1316, subpart D. hearing must be received on or before Posting of Public Comments Such requests or notices must conform June 15, 2020. Please note that all comments to the requirements of 21 CFR ADDRESSES: Interested persons may file received in response to this docket are 1308.44(a) or (b), and 1316.47 or written comments on this proposal in considered part of the public record. 1316.48, as applicable, and include a accordance with 21 CFR 1308.43(g). They will, unless reasonable cause is statement of the person’s interests in the Commenters should be aware that the given, be made available by the Drug proceeding and the objections or issues, electronic Federal Docket Management Enforcement Administration (DEA) for if any, concerning which the person System will not accept comments after public inspection online at http:// desires to be heard. Any waiver must 11:59 p.m. Eastern Time on the last day www.regulations.gov. Such information conform to the requirements of 21 CFR of the comment period. To ensure includes personal identifying 1308.44(c) and may include a written proper handling of comments, please information (such as your name, statement regarding the interested reference ‘‘Docket No. DEA–509’’ on all address, etc.) voluntarily submitted by person’s position on the matters of fact electronic and written correspondence, the commenter. The Freedom of and law involved in any hearing. including any attachments. All requests for hearing and waivers • Information Act applies to all comments Electronic comments: DEA received. If you want to submit personal of participation must be sent to DEA encourages that all comments be identifying information (such as your using the address information provided submitted electronically through the name, address, etc.) as part of your above. Federal eRulemaking Portal, which comment, but do not want it to be made Legal Authority provides the ability to type short publicly available, you must include the comments directly into the comment phrase ‘‘PERSONAL IDENTIFYING The United States is a party to the field on the web page or to attach a file INFORMATION’’ in the first paragraph 1971 United Nations Convention on for lengthier comments. Please go to of your comment. You must also place Psychotropic Substances (1971 http://www.regulations.gov and follow all of the personal identifying Convention), February 21, 1971, 32 the online instructions at that site for information you do not want made U.S.T. 543 as amended. Procedures submitting comments. Upon completion publicly available in the first paragraph respecting changes in drug schedules of your submission, you will receive a of your comment and identify what under the 1971 Convention are Comment Tracking Number for your information you want redacted. governed domestically by 21 U.S.C. comment. Please be aware that If you want to submit confidential 811(d)(2–4). When the United States submitted comments are not business information as part of your receives notification of a scheduling instantaneously available for public comment, but do not want it to be made decision pursuant to Article 2 of the view on Regulations.gov. If you have publicly available, you must include the 1971 Convention adding a drug or other received a Comment Tracking Number, phrase ‘‘CONFIDENTIAL BUSINESS substance to a specific schedule, the your comment has been successfully INFORMATION’’ in the first paragraph Secretary of the Department of Health submitted and there is no need to of your comment. You must also and Human Services (HHS),1 after resubmit the same comment. prominently identify confidential • Paper comments: Paper comments business information to be redacted 1 As discussed in a memorandum of understanding entered into by the Food and Drug that duplicate the electronic submission within the comment. Administration (FDA) and the National Institute on are not necessary. Should you wish to Comments containing personal Drug Abuse (NIDA), FDA acts as the lead agency mail a paper comment in lieu of an identifying information and confidential within HHS in carrying out the Secretary’s

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consultation with the Attorney General, encountered PMMA on the recreational substance in amounts sufficient to create a shall first determine whether existing drug market. In this market, PMMA is hazard to their health or to the safety of other legal controls under subchapter I of the available and sold as ‘‘ecstasy’’ either individuals or to the community; or Controlled Substances Act (CSA) and alone or in combination with MDMA or (b) There is significant diversion of the the Federal Food, Drug, and Cosmetic PMA for oral consumption. For many drug or drugs containing such a substance from legitimate drug channels; or Act meet the requirements of the years, there has been worldwide (mostly (c) Individuals are taking the drug or drugs schedule specified in the notification in Europe) reporting of non-fatal and containing such a substance on their own with respect to the specific drug or fatal cases of overdoses involving initiative rather than on the basis of medical substance. 21 U.S.C. 811(d)(3). If such PMMA. PMMA has no accepted medical advice from a practitioner licensed by law to requirements are not met by existing use in treatment in the United States. administer such drugs in the course of his controls and the Secretary of HHS professional practice; or Proposed Determination To Schedule concurs in the scheduling decision, the (d) The drug or drugs containing such a PMMA Secretary shall recommend to the substance are new drugs so related in their Attorney General that he initiate On March 18, 2016, the Commission action to a drug or drugs already listed as proceedings for scheduling the drug or on Narcotic Drugs (CND) voted to place having a potential for abuse to make it likely that the drug will have the same potentiality substance under the appropriate PMMA in Schedule I of the 1971 Convention (CND Dec/59/3) during its for abuse as such drugs, thus making it schedule pursuant to 21 U.S.C. 811(a) reasonable to assume that there may be and (b). 21 U.S.C. 811(d)(3)(B). 59th Session due to its dependence and significant diversions from legitimate In the event that the Secretary of HHS abuse potential. The United States is a channels, significant use contrary to or did not consult with the Attorney member of the 1971 Convention, and in without medical advice, or that it has a General, as provided under 21 U.S.C. accordance with 21 U.S.C. 811(b), on substantial capability of creating hazards to 811(d)(3), and the Attorney General did April 7, 2017, DEA, after gathering the the health of the user or to the safety of the not issue a temporary order, as provided necessary data, requested from HHS 2 a community. under 21 U.S.C. 811(d)(4), the scientific and medical evaluation and a According to HHS, there is currently procedures for permanent scheduling scheduling recommendation for PMMA. no approved medical use in treatment set forth in 21 U.S.C. 811(a) and (b) On December 18, 2018, pursuant to 21 for PMMA anywhere in the world, and control. Pursuant to 21 U.S.C. 811(a)(1), U.S.C. 811(b), HHS provided DEA with there is no Food and Drug the Attorney General may, by rule, add a scheduling recommendation entitled Administration (FDA)-approved drug to such a schedule or transfer between ‘‘Basis for the Recommendation to Place product containing PMMA used in such schedules any drug or other 1-(4-methoxyphenyl)-N-methylpropan- treatment in the United States. Evidence substance, if he finds that such drug or 2-amine (para- demonstrates that PMMA, similar to other substance has a potential for methoxymethamphetamine, PMMA) in MDMA, is abused for its stimulant, abuse, and makes with respect to such Schedule I of the Controlled Substances psychedelic, and empathogenic effects. drug or other substance the findings Act.’’ Over a period of approximately 30 years prescribed by 21 U.S.C. 812(b) for the Upon receipt of the scientific and starting in the 1990s, PMMA has been schedule in which such drug or other medical evaluation and scheduling associated with numerous cases of non- substance is to be placed. The Attorney recommendation from HHS, DEA fatal intoxications (n = 31) and fatal General has delegated this scheduling reviewed the documents and all other intoxications (n = 131) in three authority to the Administrator of DEA relevant data, and conducted its own 8- continents. PMMA and its metabolites (Administrator). 28 CFR 0.100. Factor analysis in accordance with 21 have been positively identified in blood, U.S.C. 811(c). Included below is a brief urine, and hair samples of individuals Background summary of each factor as analyzed by with a substance use disorder. Evidence para-Methoxymethamphetamine HHS and DEA, and as considered by posits that PMMA is abused knowingly (PMMA) is a substituted DEA in the scheduling decision. Please and/or unknowingly as an MDMA phenethylamine and shares structural note that both DEA and HHS 8-Factor (ecstasy) substitute. similarity to methamphetamine analyses are available in their entirety Law enforcement seizure 4 data (schedule II) and para- under the tab ‘‘Supporting Documents’’ indicate that individuals have abused methoxyamphetamine (PMA), schedule of the public docket for this action at and are continuing to abuse PMMA. I. PMMA shares a similar http://www.regulations.gov under According to the National Forensic pharmacological profile with 3,4- Docket Number ‘‘DEA–509.’’ Laboratory Information System methylenedioxymethamphetamine 1. The Drug’s Actual or Relative (NFLIS) 5 database, which collects drug (MDMA or ecstasy), a schedule I Potential for Abuse: The term ‘‘abuse’’ is identification results from drug cases substance with high potential for abuse. not defined in the CSA. However, the Similar to MDMA, data obtained from legislative history of the CSA suggests 4 While law enforcement data is not direct preclinical studies show that PMMA’s that DEA consider the following criteria evidence of abuse, it can lead to an inference that effects are mediated by monoaminergic when determining whether a particular a drug has been diverted and abused. See 76 FR (dopamine, norepinephrine, and drug or substance has a potential for 77330, 77332, December 12, 2011. serotonin) transmission, mostly via abuse: 3 5 NFLIS represents an important resource in monitoring illicit drug trafficking, including the activation of the serotonergic system. In diversion of legally manufactured pharmaceuticals animals, PMMA mimics MDMA in (a) There is evidence that individuals are taking the drug or drugs containing such a into illegal markets. NFLIS-Drug is a comprehensive producing discriminative stimulus information system that includes data from forensic effect, indicative of similar subjective laboratories that handle the Nation’s drug analysis 2 Administrative responsibilities for evaluating a cases. NFLIS-Drug participation rate, defined as the effects. Law enforcement has substance for control under the CSA are performed percentage of the national drug caseload for HHS by FDA, with the concurrence of NIDA, represented by laboratories that have joined NFLIS, scheduling responsibilities under the CSA, with the according to a Memorandum of Understanding. 50 is currently 98.5%. NFLIS includes drug chemistry concurrence of NIDA. 50 FR 9518, March 8, 1985. FR 9518, March 8, 1985. results from completed analyses only. While NFLIS The Secretary of HHS has delegated to the Assistant 3 Comprehensive Drug Abuse Prevention and data is not direct evidence of abuse, it can lead to Secretary for Health of HHS the authority to make Control Act of 1970, H.R. Rep. No. 91–1444, 91st an inference that a drug has been diverted and domestic drug scheduling recommendations. 58 FR Cong., Sess. 1 (1970); reprinted in 1970 abused. See 76 FR 77330, 77332, December 12, 35460, July 1, 1993. U.S.C.C.A.N. 4566, 4603. 2011. NFLIS data were queried October 23, 2019.

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submitted to and analyzed by some in rats trained to discriminate between As stated by HHS, there are several Federal, State, and local forensic MDMA or PMMA, MDMA and PMMA sources describing the synthesis of laboratories, there have been 39 reports cross-substitute for one another. Based PMMA either directly or through for PMMA between January 2002 and on these and additional data, HHS alternate route by conversion of PMA to October 2019, and no reports for PMMA stated that PMMA likely has similar PMMA. The precursor substances that from January 2003 to December 2010, psychoactive effects as MDMA. can be used for the synthesis of PMMA January 2013 to December 2013, and There are no clinical studies include methylamine, 4- January 2017 to December 2017 (query conducted with PMMA. However, methoxyphenyacetone, and date: October 23, 2019).6 The according to HHS, an article described cyanoborohydride. Additional identification of this substance on the that a self-administered 110 milligram chemicals and solvents required for illicit drug market is an indication that (mg) dose of PMMA resulted in PMMA synthesis include methanol, individuals are taking PMMA in compulsive yawning and increased dichloromethane, isopropanol, amounts sufficient to create a hazard to pulse one hour post-administration. The hydrochloric acid, ethyl chloroformate, public health. In the United States, described effects returned ‘‘back to trimethylamine, carbamate, formamide, PMMA is not an approved drug product, baseline’’ four hours post- and lithium aluminum hydride. and there appears to be no legitimate administration. A study examined the Pharmacokinetic studies of PMMA in source for this substance as a marketed psychoactive effects of individuals who rats showed that after subcutaneous drug product. had taken ‘‘ecstasy.’’ The study followed administration, peak PMMA Based on available data, PMMA is 5,786 individuals who provided the concentration was detected in the related in its effects to the actions of tablets for a chemical analysis and plasma within 30 minutes. Brain levels other substances such as PMA (schedule reported on their subjective effects. Out of PMMA were delayed behind the I) and MDMA (schedule I) that are of this sample set, 70 (1.2 percent) plasma levels for several hours. HHS already listed as having potential for ‘‘ecstasy’’ tablets were identified as states that this delay supports user abuse. According to HHS, PMMA has containing PMMA and MDMA together, comments that PMMA has a longer similar pharmacological effects to with PMMA concentrations in a range of onset of effect than MDMA. Most of MDMA, and thus is expected to have a 5.0 to 128.0 mg/tablet. It was noted that PMMA and its metabolites were high potential for abuse and high risk to abusers of the PMMA and MDMA excreted within the first 24-hours post- public health. combination experienced hyperthermic administration. Metabolites detected 2. Scientific Evidence of the Drug’s seizures, palpitations, agitation, were products of O-demethylation or N- Pharmacological Effects, if Known: hallucinations, abdominal cramps, demethylation of PMMA to 4- According to HHS, PMMA is an nausea, dizziness, and headache. methoxyamphetamine (PMA), 4- empathogenic drug that produces mild In summary, PMMA is a psychoactive hydroxymethamphetamine (OH-MAM), stimulant and psychedelic effects. Data substance with a mechanism of action 4-hydroxyamphetamine (OH-AM), 4- obtained from in vitro studies show that similar to that of MDMA. Data from in hydroxy-3′-methoxymethamphetamine similar to MDMA, PMMA significantly vitro studies show that PMMA increases (HM-MAM), and 4′-hydroxy-3′- increased dopamine (DA) and serotonin serotonin levels more than dopamine methoxyamphetamine (HM-AM). The (5-HT) levels in brain regions associated levels in the brain reward circuitry. In cytochrome P450 enzyme CYP2D6 was with abuse liability. Data obtained from addition, PMMA has an inhibitory effect identified as being the only enzyme an enzymatic assay demonstrate that on monoamine oxidase-A enzyme that capable of demethylating PMMA. PMMA inhibited monoamine oxidase A further increases monoamine levels and PMMA toxicity data in animals and B. According to HHS, results from can lead to serotonin syndrome, a demonstrate that toxicity occurs at early the enzymatic study may partially dangerous medical condition. Data from stages of administration. In PMMA- explain the higher levels of monoamines animal studies demonstrate that PMMA dosed animals, prior to lethality, seen with PMMA administration in produced locomotor stimulant effects at hyperactivity, increased respiration, brain microdialysis studies. High levels high doses with potency of about six salivation, and tremor were observed. of monoamines, especially 5-HT, can times less than that of (+)-amphetamine. 4. Its History and Current Pattern of lead to a serious medical condition In drug discrimination studies, PMMA Abuse: Abuse of PMMA was first referred to as serotonin syndrome. High produces stimulus effect similar to documented in the late 1980s and doses of PMMA have been associated MDMA in rats. Both PMMA and MDMA associated with ‘‘ecstasy’’ tablets as this with symptoms of serotonin syndrome, cross-substitute for one another. There drug was often substituted for MDMA. including increased body temperature are currently no controlled clinical Abuse of PMMA has been documented (hyperthermia), tremor, and agitation, studies that have evaluated the effects of worldwide with usage particularly which can lead to death. PMMA in humans. However, anecdotal extensive in Europe, Asia, and Canada. In preclinical studies, high doses of reports show that similar to MDMA, PMMA was originally used as a powder PMMA transiently increased locomotor PMMA produces adverse health effects, with doses ranging around 100 mg or activity. HHS stated that PMMA’s such as hyperthermia, seizures, less. PMMA is now most commonly locomotor stimulatory effects are not as hallucinations, and nausea. Taken encountered in a tablet form, and robust as that of amphetamine or together, these data demonstrate that PMMA tablets have been seized in methamphetamine. In drug PMMA shares a mechanism of action Europe, Asia, and the United States. discrimination studies, using a test to and discriminative stimulus effects PMMA tablets are primarily sold as determine physical or behavioral effects similar to the schedule I substance, ‘‘ecstasy’’ and are sometimes (an interoceptive response) of an MDMA. encountered along with amphetamine, unknown drug, the effects of PMMA are 3. The State of Current Scientific methamphetamine, or ephedrine. different from structural analogs, Knowledge Regarding the Drug or Other PMMA tablets may be marked with amphetamine or 2,5-dimethoxy-4- Substance: PMMA is a substituted different logos, including ‘‘E,’’ methylamphetamine (DOM). However, phenethylamine and is a methoxy- ‘‘Mitsubishi,’’ ‘‘Jumbo,’’ or ‘‘Superman.’’ derivative of methamphetamine. PMMA Street names for PMMA tablets include 6 NFLIS is still reporting data for October– is also related to PMA and MDMA, ‘‘Dr. Death,’’ ‘‘Death,’’ or ‘‘Killer.’’ December 2018, due to normal lag time in reporting. which are schedule I substances. According to a review of PMMA by the

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European Monitoring Centre for Drugs been associated with ‘‘ecstasy’’ tablets majority of them under the age of 30. and Drug Addition (EMCDDA) in 2003, and is used as a substitute for MDMA. Common symptoms that were observed tablets were reported to contain between As a result, most users think they are prior to death were hyperthermia, 20 and 97 mg of PMMA. PMMA is taking ‘‘ecstasy’’ with MDMA and are decreased respiratory rate, seizures, and primarily administered orally in a tablet not intentionally purchasing PMMA on cardiac arrest. In most of the PMMA- form. Data indicate that MDMA is often the illicit market. One study reported related fatalities, other drugs were mixed with other substances, one of that tablets containing a combination of detected in the blood or urine. which is PMMA. It was observed that MDMA and PMMA resulted in adverse 7. Its Psychic or Physiological MDMA mixed with PMMA led to a effects, such as hyperthermic seizures, Dependence Liability: According to higher number of adverse events than palpitations, agitation, nausea, and HHS, abuse liability of PMMA has only other MDMA combinations. According hallucinations. Most abusers of PMMA been characterized through drug to HHS, there is little anecdotal take the drug in combination with other discrimination studies. The drug information on the use of PMMA most drugs as noted in the PMMA-associated discrimination studies do not provide likely because individuals ingesting this deaths (see Factor 6). Furthermore, there information that can be used to assess substance in the context of abuse is evidence of PMMA drug seizures or the psychic or physiological believe they are taking MDMA rather confiscation in the United States, as dependence liability of PMMA, than a mixture of drugs that may reported by DEA’s STRIDE/STARLiMS although they provide information on include PMMA thus attributing its or NFLIS databases. the subjective effects of the drug. Data effects to MDMA. Numerous deaths and overdoses from drug discrimination studies DEA conducted a search of NFLIS and associated with PMMA usage showed that both PMMA and MDMA the System to Retrieve Information from demonstrate that there is a considerable share discriminative stimulus effects. Drug Evidence (STRIDE)/STARLiMS for population abusing PMMA, and its Diagnostic and Statistical Manual of law enforcement encounters of PMMA. abuse is a significant public health Mental Disorders, 5th Edition, indicated Prior to October 1, 2014, STRIDE concern. Prior to death, individuals that there is evidence of a withdrawal collected the analytical results of drug exhibit high temperatures, seizures, syndrome from MDMA with evidence submitted by DEA, other coma, and respiratory distress. The observations of both psychological and Federal law enforcement agencies, and PMMA-related public health risks, such physical dependence. Similarities in the some local law enforcement agencies to as deaths and overdoses, led the drug discriminative stimulus properties DEA forensic laboratories. Since European Union Member States to of PMMA and MDMA indicate that the October 1, 2014, STARLiMS (a web- control PMMA in 2002. subjective effects of PMMA are similar based, commercial laboratory 6. What, if Any, Risk There is to the to that of the schedule I substance, information management system) has Public Health: According to HHS, there MDMA. As stated by HHS, both PMMA replaced STRIDE as DEA laboratory are several risk factors associated with and MDMA also largely share a common drug evidence data system of record. the use of PMMA. The first risk is that mechanism of action. Thus, it is DEA laboratory data submitted after individuals inadvertently use PMMA plausible to extrapolate that PMMA has September 30, 2014, are reposited in because it is sold as MDMA and such a dependence liability similar to that of STARLiMS. According to data from products may contain other drugs. This MDMA. HHS states some individuals STRIDE 7 and STARLiMS 8 between risk can lead to poly-drug use, which is have become tolerant to MDMA January 2000 and December 2018, DEA inherently more dangerous to the resulting in taking high doses of the laboratories analyzed 41 drug exhibits individuals who consume such drug, and these individuals have containing PMMA. NFLIS is a DEA products. The second risk described by reported undergoing a withdrawal program that collects drug identification HHS is the slow onset of action of syndrome, although it is unclear results from drug cases analyzed by PMMA compared to MDMA. The delay whether they were undergoing other Federal, State, and local forensic in onset of effect for PMMA can make withdrawal or adverse effects from high laboratories. Within the NFLIS database, individuals consume more PMMA, and doses of MDMA. Thus, evidence there have been 39 reports 9 for PMMA such action can lead to overdose or suggests that MDMA causes between January 2002 and October death. Thirdly, HHS described that the psychological dependence and may be 2019, and no reports from January 2003 pharmacological actions of PMMA, such associated with physical dependence, to December 2010, January 2013 to as increase in monoamine levels (DA although not to the same extent as that December 2013, and January 2017 to and 5-HT) combined with inhibition of of cocaine. December 2017 from state and local monoamine oxidase-A, an enzyme HHS concludes that PMMA most laboratories. The NFLIS database shows responsible for degradation of these likely has a psychic dependence there were two reports in 2002 from one monoamines, can lead to a serious liability similar to that of MDMA, state; three reports from two states in medical condition known as serotonin though not as strong as that of cocaine. 2011; three reports from three states in syndrome. The symptoms of serotonin The use of PMMA may be associated 2012; 21 reports from one state in 2014; syndrome are similar to those seen with physical dependence. three reports from two states in 2015; when high doses of PMMA are used. 8. Whether the Substance is an two reports from one state in 2016; four These include hyperthermia, tremor, Immediate Precursor of a Substance reports from two states in 2018; and one agitation, and can result in death. Already Controlled Under the CSA: report from one state in 2019. Over a period of approximately 30 PMMA is not an immediate precursor to 5. The Scope, Duration, and years starting in the 1990s, a total of 131 any substance already controlled in the Significance of Abuse: PMMA abuse has analytically confirmed PMMA (detected CSA as defined by 21 U.S.C. 802(23). in either blood and/or urine)-associated Conclusion: After considering the 7 STRIDE data were queried through September deaths in Europe (69 deaths), Israel (27 scientific and medical evaluation 30, 2014, by the date of collection for DEA forensic deaths), Canada (27 deaths), and Taiwan conducted by HHS, HHS’s scheduling laboratories. (8 deaths) has been reported. Published recommendation, and DEA’s own 8- 8 STRIDE/STARLIMS was queried October 23, 2019, by the date of collection. case reports on PMMA-related deaths Factor analysis, DEA finds that the facts 9 NFLIS is still reporting data for October– occurred mostly in males and ages and all relevant data constitute December 2018, due to normal lag time in reporting. ranged from 14–59 years with the substantial evidence of the potential for

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abuse of PMMA. As such, DEA hereby (3) There Is a Lack of Accepted Safety scheduling action unless DEA has proposes to schedule PMMA as a for Use of the Drug or Substance Under approved that application for schedule I controlled substance under Medical Supervision registration pursuant to 21 U.S.C. 822, the CSA. Because PMMA has no approved 823, 957, 958, and in accordance with 21 CFR parts 1301 and 1312. Proposed Determination of Appropriate medical use in treatment in the United Schedule States and has not been investigated as 2. Disposal of stocks. Any person who a new drug, its safety for use under does not desire or is not able to obtain The CSA establishes five schedules of medical supervision has not been a schedule I registration would be controlled substances known as determined. Therefore, there is a lack of required to surrender all quantities of schedules I, II, III, IV, and V. The CSA accepted safety for use of PMMA under currently held PMMA or transfer all also outlines the findings required to medical supervision. quantities of currently held PMMA to a place a drug or other substance in any Based on these findings, the Acting person registered with DEA before the particular schedule. 21 U.S.C. 812(b). Administrator of DEA concludes that effective date of a final scheduling After consideration of the analysis and PMMA warrants control in schedule I of action, in accordance with all applicable recommendation of the Assistant the CSA. 21 U.S.C. 812(b)(1). More Federal, State, local, and tribal laws. As Secretary for Health of HHS and review precisely, because PMMA shares a of the effective date of a final scheduling of all available data, the Acting pharmacological mechanism of action action, PMMA would be required to be Administrator of DEA, pursuant to 21 and psychoactive effects similar to the disposed of in accordance with 21 CFR U.S.C. 811(c) and 812(b)(1), finds the schedule 1 substance MDMA, DEA is part 1317, in addition to all other following: proposing to place PMMA in 21 CFR applicable Federal, State, local, and (1) The Drug or Substance Has a High 1308.11(d) (the hallucinogenic category tribal laws. Potential for Abuse of schedule I). As such, the proposed 3. Security. PMMA would be subject PMMA has a mechanism of action control of PMMA includes the to schedule I security requirements and similar to that of the schedule I substance, as well as its salts, isomers, would need to be handled and stored in substance MDMA. Similar to MDMA, and salts of isomers whenever the accordance with 21 CFR 1301.71– PMMA increases levels of monoamines, existence of such isomers and salts is 1301.93 as of the effective date of a final specifically DA and 5-HT, in the brain possible, within the specific chemical scheduling action. reward circuitry. Data from animal designation. 4. Labeling and Packaging. All labels, studies demonstrate that PMMA fully Requirements for Handling PMMA labeling, and packaging for commercial substitutes for the discriminative containers of PMMA would need to be If this rule is finalized as proposed, in compliance with 21 U.S.C. 825 and stimulus effect of MDMA, indicative of PMMA would be subject to the CSA’s similar subjective effects. Although 958(e), and be in accordance with 21 schedule I regulatory controls and CFR part 1302, as of the effective date there is currently no data that has administrative, civil, and criminal directly assessed the psychological or of a final scheduling action. sanctions applicable to the manufacture, 5. Quota. Only registered physiological dependence liability of distribution, reverse distribution, PMMA, its pharmacological similarities manufacturers would be permitted to import, export, engagement in research, manufacture PMMA in accordance with to MDMA suggest it likely has low conduct of instructional activities or physical dependence liability similar to a quota assigned, pursuant to 21 U.S.C. chemical analysis with, and possession 826 and in accordance with 21 CFR part that of MDMA. Evidence demonstrates of schedule I controlled substances, that users of PMMA seem to be seeking 1303, as of the effective date of a final including the following: scheduling action. MDMA, which may be mixed with 1. Registration. Any person who 6. Inventory. Every DEA registrant PMMA. Because PMMA shares a handles (manufactures, distributes, pharmacological mechanism of action reverse distributes, imports, exports, who possesses any quantity of PMMA and psychoactive effects similar to the engages in research, or conducts on the effective date of a final schedule 1 substance MDMA, PMMA instructional activities or chemical scheduling action would be required to has a high potential for abuse. analysis with, or possesses) PMMA, or take an inventory of PMMA on hand at that time, pursuant to 21 U.S.C. 827 and (2) The Drug or Substance Has No who desires to handle PMMA, would 958, and in accordance with 21 CFR Currently Accepted Medical Use in need to be registered with DEA to 1304.03, 1304.04, and 1304.11(a) and Treatment in the United States conduct such activities pursuant to 21 U.S.C. 822, 823, 957, 958, and in (d). According to HHS, FDA has not Any person who becomes registered approved any marketing application for accordance with 21 CFR parts 1301 and 1312, as of the effective date of a final with DEA on or after the effective date a drug product containing PMMA for of the final scheduling action would be any indication. In addition, there are no scheduling action. Any person who currently handles PMMA, and is not required to take an initial inventory of clinical studies or petitioners that have all stocks of controlled substances claimed an accepted medical use of registered with DEA, would need to submit an application for registration (including PMMA) on hand on the date PMMA in the United States. Thus, the registrant first engages in the PMMA has no currently accepted and may not continue to handle PMMA after the effective date of a final handling of controlled substances, medical use in treatment in the United pursuant to 21 U.S.C. 827 and 958, and States.10 i. The drug’s chemistry must be known and in accordance with 21 CFR 1304.03, reproducible; 1304.04, and 1304.11(a) and (b). 10 Although there is no evidence suggesting that ii. there must be adequate safety studies; After the initial inventory, every DEA PMMA has a currently accepted medical use in treatment in the United States, it bears noting that iii. there must be adequate and well-controlled registrant would be required to take an a drug cannot be found to have such medical use studies proving efficacy; inventory of all controlled substances unless DEA concludes that it satisfies a five-part iv. the drug must be accepted by qualified (including PMMA) on hand every two experts; and test. Specifically, with respect to a drug that has not years, pursuant to 21 U.S.C. 827 and been approved by FDA, to have a currently v. the scientific evidence must be widely accepted medical use in treatment in the United available. 958, and in accordance with 21 CFR States, all of the following must be demonstrated: 57 FR 10499 (1992). 1304.03, 1304.04, and 1304.11.

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7. Records and Reports. Every DEA sections 3(a) and 3(b)(2) of Executive legitimate commercial market for registrant would be required to maintain Order 12988, Civil Justice Reform, to PMMA in the United States. Therefore, records and submit reports for PMMA, eliminate drafting errors and ambiguity, DEA estimates that no United States or products containing PMMA, pursuant minimize litigation, provide a clear legal entity currently handles PMMA and to 21 U.S.C. 827 and 958, and in standard for affected conduct, and does not expect any United States entity accordance with 21 CFR parts 1304, promote simplification and burden to handle PMMA in the foreseeable 1312, and 1317, as of the effective date reduction. future. DEA concludes that no of a final scheduling action. Executive Order 13132, Federalism legitimate United States entity would be Manufacturers and distributors would This proposed rulemaking does not affected by this rule if finalized. As be required to submit reports regarding such, the proposed rule will not have a PMMA to the Automation of Reports have federalism implications warranting the application of Executive Order significant effect on a substantial and Consolidated Order System number of small entities. pursuant to 21 U.S.C. 827 and in 13132. The proposed rule does not have accordance with 21 CFR parts 1304 and substantial direct effects on the States, Unfunded Mandates Reform Act of 1995 1312, as of the effective date of a final on the relationship between the national scheduling action. government and the States, or the In accordance with Unfunded 8. Order Forms. Every DEA registrant distribution of power and Mandates Reform Act (UMRA) of 1995, who distributes PMMA would be responsibilities among the various 2 U.S.C. 1501 et seq., DEA has required to comply with order form levels of government. determined and certifies that this action requirements, pursuant to 21 U.S.C. 828, Executive Order 13175, Consultation would not result in any Federal and in accordance with 21 CFR part and Coordination With Indian Tribal mandate that may result ‘‘in the 1305, as of the effective date of a final Governments expenditure by State, local, and tribal scheduling action. governments, in the aggregate, or by the This proposed rule does not have 9. Importation and Exportation. All private sector, of $100 million or more tribal implications warranting the importation and exportation of PMMA (adjusted annually for inflation) in any application of Executive Order 13175. It would need to be in compliance with 21 1 year * * *.’’ Therefore, neither a does not have substantial direct effects U.S.C. 952, 953, 957, and 958, and in Small Government Agency Plan nor any accordance with 21 CFR part 1312, as of on one or more Indian tribes, on the relationship between the Federal other action is required under UMRA of the effective date of a final scheduling 1995. action. Government and Indian tribes, or on the 10. Liability. Any activity involving distribution of power and Paperwork Reduction Act of 1995 PMMA not authorized by, or in responsibilities between the Federal This action does not impose a new violation of, the CSA or its Government and Indian tribes. collection of information under the implementing regulations, would be Regulatory Flexibility Act unlawful, and may subject the person to Paperwork Reduction Act of 1995. 44 The Acting Administrator, in U.S.C. 3501–3521. This action would administrative, civil, and/or criminal accordance with the Regulatory sanctions. not impose recordkeeping or reporting Flexibility Act, 5 U.S.C. 601–602, has requirements on State or local Regulatory Analyses reviewed this proposed rule, and by governments, individuals, businesses, or approving it, certifies that it will not organizations. An agency may not Executive Orders 12866, 13563, and have a significant economic impact on 13771, Regulatory Planning and Review, conduct or sponsor, and a person is not a substantial number of small entities. required to respond to, a collection of Improving Regulation and Regulatory DEA proposes placing the substance information unless it displays a Review, and Reducing Regulation and PMMA (chemical name: 1-(4- currently valid OMB control number. Controlling Regulatory Costs methoxyphenyl)-N-methylpropan-2- In accordance with 21 U.S.C. 811(a), amine), including its salts, isomers, and List of Subjects in 21 CFR Part 1308 this proposed scheduling action is salts of isomers whenever the existence subject to formal rulemaking procedures of such salts, isomers, and salts of Administrative practice and performed ‘‘on the record after isomers is possible, in schedule I of the procedure, Drug traffic control, opportunity for a hearing,’’ which are CSA. This action is being taken to Reporting and recordkeeping conducted pursuant to the provisions of enable the United States to meet its requirements. 5 U.S.C. 556 and 557. The CSA sets obligations under the 1971 Convention For the reasons set out above, 21 CFR on Psychotropic Substances. If finalized, forth the procedures and criteria for part 1308 is proposed to read as follows: scheduling a drug or other substance. this action would impose the regulatory Such actions are exempt from review by controls and administrative, civil, and PART 1308—SCHEDULES OF the Office of Management and Budget criminal sanctions applicable to CONTROLLED SUBSTANCES (OMB) pursuant to section 3(d)(1) of schedule I controlled substances on Executive Order 12866 and the persons who handle (manufacture, ■ 1. The authority citation for 21 CFR principles reaffirmed in Executive Order distribute, reverse distribute, import, part 1308 continues to read as follows: 13563. export, engage in research, conduct This rulemaking is not an Executive instructional activities or chemical Authority: 21 U.S.C. 811, 812, 871(b), Order 13771 regulatory action because analysis with, or possess), or propose to 956(b), unless otherwise noted. this rule is not significant under handle PMMA. ■ Executive Order 12866. According to HHS, PMMA has a high 2. In § 1308.11, add paragraph (d)(80) potential for abuse, has no currently to read as follows: Executive Order 12988, Civil Justice accepted medical use in treatment in the § 1308.11 Schedule I. Reform United States, and lacks accepted safety This proposed regulation meets the for use under medical supervision. * * * * * applicable standards set forth in DEA’s research confirms that there is no (d) * * *

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• Mail: Executive Office of the comment, but do not want it to be (79) 1-(4-methoxyphenyl)-N- President, Office of National Drug posted online, you must include the methylpropan-2-amine (other Control Policy, 1800 G Street NW, 9th phrase ‘‘CONFIDENTIAL BUSINESS names: para- Floor, Washington, DC 20006, Attn: INFORMATION’’ in the first paragraph methoxymethamphetamine, Office of General Counsel. of your comment and precisely and PMMA), ...... (1245) Instructions: All submissions received prominently identify the confidential * * * * * must include the agency name and business information for which you seek docket number or Regulatory redaction. If a comment has so much Uttam Dhillon, Information Number (RIN) for this confidential business information that it Acting Administrator. rulemaking. All comments received will cannot be effectively redacted, all or [FR Doc. 2020–09599 Filed 5–14–20; 8:45 am] be posted without change to http:// part of that comment may not be posted BILLING CODE 4410–09–P www.regulations.gov including any on www.regulations.gov. Personally personal information provided. For identifiable information and detailed instructions on sending confidential business information EXECUTIVE OFFICE OF THE comments and additional information provided as set forth above will be PRESIDENT on the rulemaking process, see the placed in the agency’s public docket ‘‘Public Participation’’ heading of the file, but not posted online. To inspect Office of National Drug Control Policy SUPPLEMENTARY INFORMATION section of the agency’s public docket file in this document. person, you must make an appointment 21 CFR Part 1401 FOR FURTHER INFORMATION CONTACT: with agency counsel. Please see the FOR RIN 3201–AA02 Questions concerning this ANPRM FURTHER INFORMATION CONTACT should be directed to Michael J. paragraph above for the agency Criteria for Designation of Emerging Passante, Acting General Counsel, counsel’s contact information specific to Drug Threats in the United States Office of General Counsel, Office of this rulemaking. AGENCY: Office of National Drug Control National Drug Control Policy, Executive II. Introduction Policy. Office of the President, at OGC@ Through enacting Section 8218 of the ondcp.eop.gov (email) or (202) 395– ACTION: Advance notice of proposed SUPPORT Act, 21 U.S.C. 1708, Congress 6622 (voice). rulemaking. codified its intention for the Federal SUPPLEMENTARY INFORMATION: government to closely monitor emerging SUMMARY: The Office of National Drug I. Public Participation drug threats and to take action at the Control Policy is announcing this outset of a trend to prevent such threats Advance Notice of Proposed ONDCP strongly recommends using from reaching levels seen during the Rulemaking (ANPRM) and requests electronic means for submitting opioid crisis. The SUPPORT Act information relevant to criteria for comments. Due to COVID–19, requires ONDCP to promulgate designating and terminating the comments submitted through standards for designating an emerging designation of emerging drug threats in conventional mail delivery services may drug threat and terminating such a the United States pursuant to the not be received in a timely manner. To designation. 21 U.S.C. 1708(c). The Substance Use-Disorder Prevention that ensure proper handling, please SUPPORT Act created the Emerging Promotes Opioid Recovery and reference RIN 3201–AA02 on your Threats Committee consisting of Treatment for Patients and Communities correspondence. The mailing address representatives from National Drug Act (SUPPORT Act). This ANPRM may be used for paper, disk, or CD– Control Program Agencies and other briefly summarizes the White House ROM submissions. agencies, representatives from State, Office of National Drug Control Policy’s Interested persons are invited to local and Tribal governments, and (ONDCP) ongoing work in this area and submit written data, views, or representatives from other entities describes the criteria that ONDCP is arguments on all aspects of this designated by the ONDCP Director. 21 considering to monitor and identify ANPRM. All comments must be U.S.C. 1708(b). The Emerging Threats emerging drug threats. The ANPRM submitted in English, or accompanied Committee is responsible for, among invites interested parties to submit by an English translation. Please note other matters, monitoring evolving and comments, data, and other pertinent that all comments received are emerging drug threats in the United information concerning ONDCP’s considered part of the public record and States. One of the Committee’s principal development of proposed criteria for made available for public inspection at responsibilities is to develop and designating emerging drug threats and www.regulations.gov. Such information recommend criteria that ONDCP may terminating such designations. includes personally identifiable use to designate and terminate the DATES: Send comments on or before information (such as a person’s name, designation of emerging drug threats. 21 June 30, 2020. address, or any other data that might U.S.C. 1708(b)(6). ADDRESSES: You may send comments, personally identify that individual) that How best to monitor and identify identified by RIN number 3201–AA02 the commenter voluntarily submits. emerging drug threats in the United and/or docket number ONDCP–2020– If you want to submit personally States is a question with broad public 0001, by any of the following methods: identifiable information as part of your health implications. Before proceeding, • Federal eRulemaking Portal: http:// comment, but do not want it to be ONDCP intends to benefit from a full www.regulations.gov. Follow the posted online, you must include the airing of the issues through the public instructions for submitting comments. phrase ‘‘PERSONALLY IDENTIFIABLE comment process. ONDCP’s objective is See SUPPLEMENTARY INFORMATION for file INFORMATION’’ in the first paragraph to develop criteria that will enable the formats and other information about of your comment and precisely and United States to be proactive in electronic filing. prominently identify the information for identifying emerging drug threats and • Email: [email protected], which you seek redaction. taking action to prevent such drug Include docket number ONDCP–2020– If you want to submit confidential threats from becoming public health 0001 and/or RIN number 3201–AA02 in business information as part of your emergencies. the subject line of the message.

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III. ONDCP’s Emerging Threats evolving drug, class of drugs, or other both cases, if so, please explain your Activities substances. rationale for making the (11) An increase in reports by law On May 21, 2019, ONDCP Director recommendation. ONDCP is particularly enforcement and fire department James W. Carroll announced the interested in comments on the issue of agencies using tools such as the formation of the Emerging Threats how individual criteria should be Overdose Detection Mapping Committee to identify and respond to evaluated to identify emerging drug Application Program or other near real- emerging drug threats in the United threats. Should some criteria be given time suspected overdose surveillance more weight than others? Should a States. The Committee consists of 13 data systems. combination of some, but not all, representatives from Federal, state, The Emerging Threats Committee proposed criteria be sufficient to local, and Tribal governments and selected these 11 proposed criteria designate an emerging drug threat? members of non-governmental entities. because the Committee believes that ONDCP is also interested in whether the The Emerging Threats Committee first these criteria reflect the best available criteria that reference increased met on May 22, 2019, and had several standards for detecting emerging drug occurrences of specific conditions subsequent in-person and telephonic threats. The Committee focused on should be held to certain numerical or meetings. One of the Committee’s establishing standards that were fairly statistical thresholds. What metrics, if responsibilities was to develop broad, but with the understanding that any, should be used for the criteria to standards/criteria that ONDCP may use a sliding scale would be necessary to evaluate whether an emerging drug to identify and designate emerging drug determine whether a new drug threat threat exists? threats and to terminate the designation needed to be designated or if an ongoing 2. Significance of Threat: How of such drug threats. In developing designated drug threat could be safely significant should the drug threat be proposed standards, the Committee terminated such that it no longer before ONDCP initiates the process of considered various data sources, health requires intensive efforts to prevent it designating an emerging threat? How statistics, and other indicators that may from growing into a public health crisis. should significance be determined with signal emerging drug threats. The notion of a sliding scale was respect to assessing whether a drug After careful deliberations and considered to be applicable for the trend rises to a level that warrants an discussions, the Committee developed a individual criteria as well as for all 11 emerging drug threat classification? Are set of 11 proposed criteria for evaluated holistically. As the Committee there any data, such as medical records designating emerging drug threats. The formulated the criteria, they looked at or clinical research that should be 11 criteria consist of: the environment from which an included in ONDCP’s decision-making (1) The identification of a new drug, emerging threat would most likely be process? How should the danger of the class of drugs, or other substance that identified at the earliest possible point drug threat be determined? creates the potential to substantially given the negative public health and law 3. Termination of Emerging Threat harm or adversely affect the public. enforcement impacts of the drug. For Designation: The SUPPORT Act requires (2) An increase in morbidity or example, there is evidence that ONDCP to terminate an emerging drug mortality due to drug overdose. increases in morbidity and mortality threat designation after the (3) A new regional or national due to drug overdoses and increased circumstances that gave rise to the outbreak of overdoses or other emergency department visits, designation have been abated. ONDCP is significant health harms associated with hospitalizations, or treatment interested in comments that address the a drug, class of drugs, or other admissions related to the use of a new point at which an emerging drug threat substance. drug or substance are good indicators of designation should be terminated. (4) Increased emergency department emerging drug trends. Should termination of the designation visits, hospitalizations, or treatment be linked to decreases in numerical or IV. Request for Comments admissions related to the use of a new statistical benchmarks associated with or evolving drug, class of drugs, or other ONDCP requests public comments to use of the drug? What criteria should be substance. assist us in determining the best criteria used to evaluate whether the threat (5) An increase in polysubstance use for designating emerging drug threats posed by a designated drug has declined and substance use disorders involving and removing such designations. to the point that it is no longer multiple substances. ONDCP also requests that interested considered an emerging drug threat? (6) Increased reporting by health care parties submit any pertinent public 4. Economic impact: Issuing an providers of new or novel clinical health data not discussed in this emerging drug threat designation under illnesses by patients with suspected or ANPRM. We request comments on the the SUPPORT Act triggers a series of known exposure to a drug, class of following issues relating to the public actions that ONDCP and other National drugs, or other substance. health impact, the economic impact, Drug Control Program Agencies must (7) An increase in individuals or and provisions that should be take to mitigate the impact of the cohorts (e.g., a particular population or considered for inclusion in emerging designated threat. The ONDCP Director age group) diagnosed with substance drug threats criteria. Specifically, expert is required to publish an Emerging use disorder. analysis and opinion as well as medical, Threat Response Plan within 90 days of (8) An increase in timely surveillance scientific, economic, and technical data the designation and must update the of drug use measures, either regionally are sought on the following issues: plan each year until the emerging drug or nationwide, that indicates a new or 1. Proposed Criteria: ONDCP requests threat designation is terminated. That evolving outbreak of illicit drug use or comments on whether the 11 proposed plan is required to include a an increase in substance use disorders. criteria listed in Section III of this comprehensive assessment of the drug (9) Increased discussion through ANPRM are useful criteria for threat, goals to address the threat, and online drug user sites regarding a new identifying emerging threats. Should performance measures related to the or evolving drug, class of drugs, or other any of the 11 proposed criteria be plan’s goals, among other requirements. substances. modified or eliminated? Should other 21 U.S.C. 1708(d). The ONDCP (10) State, local, tribal, or Federal criteria be considered by ONDCP in Emerging Threats Coordinator is reports of seizures involving a new or designating emerging drug threats? In required to facilitate information

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sharing and coordination with relevant influence decisions on the proposed DEPARTMENT OF THE TREASURY agencies and entities concerning the criteria will be those that are either implementation or status of emerging informed by medical, public health, or Internal Revenue Service threats, monitor implementation of law enforcement research on evidence- Emerging Threat Response Plans, and based methods for monitoring or 26 CFR Parts 1 and 301 coordinate the development and identifying drug trends or involve [REG–105495–19] implementation of reporting systems to personal experience with drug misuse RIN 1545–BP21 support performance measurement and and addiction. adherence to the plan. Agencies identified in an Emerging Threat V. Statutory and Executive Order Guidance Related to the Allocation and Response Plan are required to submit a Review Apportionment of Deductions and report to the Coordinator on Foreign Taxes, Financial Services implementation of the plan within 180 This ANPRM has been drafted and Income, Foreign Tax days of designation. Upon making an reviewed in accordance with Executive Redeterminations, Foreign Tax Credit emerging threats designation, the Order 12866, ‘‘Regulatory Planning and Disallowance Under Section 965(g), ONDCP Director is required to evaluate Review,’’ section 1(b), The Principles of and Consolidated Groups; Correction whether a media campaign to address Regulation; Executive Order 13563, AGENCY: Internal Revenue Service (IRS), the threat is appropriate. If the Director ‘‘Improving Regulation and Regulatory Treasury. determines that a media campaign is Review,’’ section 1(b), General ACTION: Notice of proposed rulemaking; warranted and enough appropriations Principles of Regulation; and Executive correction. are available for that purpose, the Order 13771, ‘‘Reducing Regulation and Director will conduct a national anti- Controlling Regulatory Costs.’’ The SUMMARY: This document contains a drug media campaign in accordance Office of Management and Budget correction to a notice of proposed with the requirements of 21 U.S.C. (OMB) has determined that this ANPRM rulemaking (REG–105495–19) that was 1708(f). The Director must ensure that is a significant regulatory action under published in the Federal Register on December 17, 2019. The proposed the media campaign is evidence-based Executive Order 12866, section 3(f), and regulations provide guidance relating to and accurate, meets accepted standards accordingly this ANPRM has been for public awareness campaigns, and the allocation and apportionment of reviewed by OMB. uses effective strategies. deductions and creditable foreign taxes, ONDCP seeks comments about the Pursuant to guidance issued by OMB, the definition of financial services relative costs and benefits of designating the requirements of E.O. 13771 do not income, foreign tax redeterminations, emerging drug threats and apply to this ANPRM. This action does availability of foreign tax credits under implementing response plans to address not propose or impose any the transition tax, and the application of such threats. What activities would requirements. ONDCP is merely the foreign tax credit limitation to federal agencies, state, local and tribal collecting information and data on the consolidated groups. governments, health care providers and possible economic impact that may DATES: Written or electronic comments other entities be required to incur as a occur as a direct or indirect result of and requests for a public hearing were result of an emerging drug threat promulgation of emerging drug threats being accepted and must have been designation, and what would those criteria. received by February 18, 2020. A activities cost? What activities would telephonic public hearing has been federal agencies, state, local and tribal The requirements of the Regulatory scheduled for May 20, 2020. Flexibility Act (RFA) do not apply to governments, health care providers and FOR FURTHER INFORMATION CONTACT: this action because, at this stage, it is an other entities take voluntarily as result Concerning the proposed regulations, of an emerging drug threat designation, ANPRM and not ‘‘rule’’ as defined in 5 Jeffrey P. Cowan, (202) 317–4924. and what would those activities cost? U.S.C. 601. Following review of the Regarding the public hearing Regina What benefits, such as lives saved and comments received in response to this Johnson at 202–317–5177 or email improved public health outcomes, ANPRM, when ONDCP decides to [email protected]. would result from an emerging drug proceed with a notice of proposed SUPPLEMENTARY INFORMATION: threat designation? Information rulemaking regarding this matter, submitted should include any negative ONDCP will conduct all relevant Background or positive economic effects that could analyses as required by statute or The proposed regulations that are the result from promulgation. Executive Order. subject of this correction are under 5. Effectiveness of Alternative This ANPRM was prepared under the section 861, 904, and 960 of the Internal Approaches: How can ONDCP best Revenue Code. accomplish its goal of monitoring and direction of James W. Carroll, Jr., identifying emerging drug threats in the Director, Office of National Drug Control Need for Correction United States? What other approaches to Policy, 1800 G Street NW, 9th Floor, As published, the notice of proposed designating emerging drug threats Washington, DC 20006. It is issued rulemaking (REG–105495–19) contains should ONDCP consider in carrying out pursuant to section 8218(c) of the errors which may prove to be its responsibilities under the SUPPORT SUPPORT for Patients and Communities misleading and need to be clarified. Act? Act, 21 U.S.C. 1708(c). Interested parties are invited to Correction of Publication submit comments on any or all of these Michael J. Passante, Accordingly, the notice of proposed and other pertinent issues related to the Acting General Counsel. rulemaking (REG–105495–19) that was development of criteria for designating [FR Doc. 2020–09469 Filed 5–14–20; 8:45 am] the subject of FR Doc. 2019–24847, or terminating the designation of BILLING CODE 3280–F5–P published at 84 FR 69124 (December 17, emerging drug threats. ONDCP 2019), is corrected as follows: appreciates any and all comments, but 1. On page 69130, third column, the those most useful and likely to last line of the first partial paragraph,

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the language ‘‘§ 1.861–17(d)(4)(v)’’ is SUMMARY: The Coast Guard is Dated: May 5, 2020. corrected to read ‘‘§ 1.861–17(d)(4)(i)’’. withdrawing its proposed rule to Joseph B. Loring, 2. On page 69134, first column, the establish temporary special local Captain, U.S. Coast Guard, Captain of the second line from the bottom of the page regulations for certain waters of the Port Maryland-National Capital Region. the language ‘‘245A(g)’’ is corrected to Choptank River. The rulemaking was [FR Doc. 2020–10203 Filed 5–14–20; 8:45 am] read ‘‘245A(d)’’. initiated to establish a special local BILLING CODE 9110–04–P 3. On page 69139, third column, the regulations during the ‘‘Maryland eighth line of the second paragraph Freedom Swim,’’ a marine event to be under the caption ‘‘Applicability held on certain navigable waters of the ENVIRONMENTAL PROTECTION Dates’’, the language ‘‘January 1, 2020,’’ Choptank River between Trappe, MD, AGENCY is corrected to read ‘‘January 1, 2020 (or and Cambridge, MD, on May 30, 2020. taxpayers that are on the sales method The proposed rule is being withdrawn 40 CFR Part 52 only for the last taxable year that begins because it is no longer necessary. The before January 1, 2020),’’. [EPA–R10–OAR–2016–0057; FRL–10007– event sponsor has cancelled the swim 86–Region 10] 4. On page 69139, third column, the event. 10th line of the second paragraph under Air Plan Approval; OR; 2010 Sulfur DATES: The Coast Guard is withdrawing the caption ‘‘Applicability Dates’’, the Dioxide NAAQS Interstate Transport the proposed rule published January 31, language ‘‘consistently’’ is corrected to Requirements read ‘‘consistently with respect to such 2020, as of May 15, 2020. AGENCY: taxable year and any subsequent year’’. ADDRESSES: To view the docket for this Environmental Protection Agency (EPA). § 1.861–17 [Corrected] withdrawn rulemaking, go to https:// www.regulations.gov, type USCG–2020– ACTION: Proposed rule. ■ 5. On page 69156, the third column, 0074 in the ‘‘SEARCH’’ box and click SUMMARY: The Environmental Protection in § 1.861–17, the third line from the ‘‘SEARCH.’’ Click on Open Docket Agency (EPA) proposes to approve the bottom of paragraph (g)(3)(i)(A), the Folder on the line associated with this State Implementation Plan (SIP) language ‘‘7(b)(1))’’ is corrected to read rule. ‘‘7(b)(1)(ii)’’. submission from Oregon as meeting ■ 6. On page 69157, the first column, in FOR FURTHER INFORMATION CONTACT: If certain Clean Air Act (CAA) interstate § 1.861–17, in the second line of you have questions about this notice, transport requirements for the 2010 1- paragraph (g)(3)(ii)(B)(3), the language call or email Mr. Ron Houck, Waterways hour Sulfur Dioxide (SO2) National ‘‘(d)(5)(v)’’ is corrected to read Management Division, U.S. Coast Guard Ambient Air Quality Standards (d)(4)(v)’’. Sector Maryland-National Capital (NAAQS). Specifically, the EPA ■ 7. On page 69157, the second column, Region; telephone 410–576– 2674, email proposes to find that emissions from in § 1.861–17, in the seventh line from [email protected]. Oregon sources will not contribute significantly to nonattainment or the bottom of paragraph (g)(4)(ii)(A), the SUPPLEMENTARY INFORMATION: language ‘‘354’’ is corrected to read interfere with the maintenance of the ‘‘364’’. Background 2010 1-hour SO2 NAAQS in any other state. § 1.960–1 [Corrected] On January 31, 2020, we published a DATES: Comments must be received on ■ 8. On page 69177, the second column, notice of proposed rulemaking entitled or before June 15, 2020. ‘‘Special Local Regulation; Choptank in § 1.960–1, third line from the bottom ADDRESSES: Submit your comments, of paragraph (d)(3)(ii)(A), the language River, Between Trappe and Cambridge, MD’’ in the Federal Register (85 FR identified by Docket ID No EPA–R10– ‘‘branch,’’ is corrected to read ‘‘branch OAR–2016–0057 at https:// from the foreign branch owner,’’. 5608). The rulemaking concerned the Coast Guard’s proposal to establish www.regulations.gov. Follow the online Martin V. Franks, temporary special local regulations for instructions for submitting comments. Chief, Publications and Regulations Branch, certain waters of the Choptank River, Once submitted, comments cannot be Legal Processing Division, Associate Chief between Trappe, MD, and Cambridge, edited or removed from https:// Counsel (Procedure and Administration). MD, effective from 9 a.m. through 1 p.m. www.regulations.gov. The EPA may [FR Doc. 2020–08994 Filed 5–14–20; 8:45 am] on May 30, 2020. This action was publish any comment received to its BILLING CODE 4830–01–P necessary to provide for the safety of life public docket. Do not electronically on these waters during an open water submit any information you consider to swim event. This rulemaking would be Confidential Business Information DEPARTMENT OF HOMELAND have prohibited persons and vessels (CBI) or other information the disclosure SECURITY from entering the regulated area unless of which is restricted by statute. authorized by the Captain of the Port Multimedia submissions (audio, video, Coast Guard Maryland-National Capital Region or the etc.) must be accompanied by a written Coast Guard Patrol Commander. comment. The written comment is 33 CFR Part 100 considered the official comment and Withdrawal should include discussion of all points [Docket No. USCG–2020–0074] you wish to make. The EPA will The proposed rule is being withdrawn generally not consider comments or Special Local Regulations; Marine due to a regulated area no longer being comment contents located outside of the Events Within the Fifth Coast Guard necessary following a cancellation of the primary submission (i.e. on the web, District swim by the event sponsor. cloud, or other file sharing system). For AGENCY: Coast Guard, DHS. Authority additional submission methods, the full EPA public comment policy, ACTION: Notice of proposed rulemaking; We issue this notice of withdrawal information about CBI or multimedia withdrawal. under the authority of 46 U.S.C. 70034. submissions, and general guidance on

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making effective comments, please visit On October 20, 2015, Oregon 2013). The EPA signed Federal Register https://www.epa.gov/dockets/ submitted a SIP to address prongs 1 and documents of promulgation for round 2 commenting-epa-dockets. 2 of the good neighbor requirements for designations 4 on June 30, 2016 (81 FR FOR FURTHER INFORMATION CONTACT: the 2010 1-hour SO2 NAAQS along with 45039, July 12, 2016) and on November Kristin Hall at (206) 553–6357, or the other infrastructure requirements.1 29, 2016 (81 FR 89870, December 13, [email protected]. 2016), and round 3 designations 5 on B. 2010 1-Hour SO2 NAAQS December 21, 2017 (83 FR 1098, January SUPPLEMENTARY INFORMATION: Designations Background Throughout this document, whenever 9, 2018).6 ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, it means In this action, the EPA has considered On August 21, 2015 (80 FR 51052), the EPA. information from the 2010 1-hour SO2 the EPA separately promulgated air NAAQS designations process, discussed quality characterization requirements Table of Contents in more detail in section III of this for the 2010 1-hour SO2 NAAQS in the I. Background document. For this reason, we have Data Requirements Rule (DRR). The A. Infrastructure SIPs included a brief summary of the EPA’s DRR requires state air agencies to B. 2010 1-Hour SO2 NAAQS Designations designations process for the 2010 1-hour characterize air quality, through air Background 2 SO2 NAAQS. dispersion modeling or monitoring, in

II. Relevant Factors To Evaluate 2010 SO2 After the promulgation of a new or areas associated with sources that Interstate Transport SIPs III. Oregon SIP Submission and EPA Analysis revised NAAQS, the EPA is required to emitted 2,000 tons per year (tpy) or A. State Submission designate areas as ‘‘nonattainment,’’ more of SO2, or that have otherwise B. EPA Evaluation Methodology ‘‘attainment,’’ or ‘‘unclassifiable’’ been listed under the DRR by the EPA C. EPA Prong 1 Evaluation—Significant pursuant to section 107(d)(1) of the or state air agencies. In lieu of modeling Contribution to Nonattainment CAA. The process for designating areas or monitoring, state air agencies, by D. EPA Prong 2 Evaluation—Interference following promulgation of a new or specified dates, could elect to impose With Maintenance revised NAAQS is contained in section federally enforceable emissions IV. Proposed Action 107(d) of the CAA. The CAA requires V. Statutory and Executive Order Reviews limitations on those sources restricting the EPA to complete the initial their annual SO2 emissions to less than I. Background designations process within two years of 2,000 tpy, or provide documentation A. Infrastructure SIPs promulgating a new or revised standard. that the sources have been shut down. If the Administrator has insufficient The EPA expected that the information On June 2, 2010, the EPA established information to make these designations generated by implementation of the DRR a new primary 1-hour SO2 NAAQS of 75 by that deadline, the EPA has the would help inform designations for the parts per billion (ppb), based on a 3-year authority to extend the deadline for 2010 1-hour SO2 NAAQS that must be average of the annual 99th percentile of completing designations by up to one completed by December 31, 2020 1-hour daily maximum concentrations year. (‘‘round 4’’). (75 FR 35520, June 22, 2010). The Clean The EPA promulgated the 2010 In round 3 of designations, the EPA Air Act (CAA) requires that, after 1-hour SO2 NAAQS on June 2, 2010. See designated Morrow County and all other promulgation of a new or revised 75 FR 35520 (June 22, 2010). The EPA areas in Oregon as attainment/ NAAQS, states must submit SIPs to completed the first round of unclassifiable for the 2010 1-hour SO meet applicable infrastructure elements 2 designations (‘‘round 1’’) 3 for the 2010 NAAQS.7 There are no remaining areas of sections 110(a)(1) and (2). One of 1-hour SO2 NAAQS on July 25, 2013, within Oregon that have yet to be these elements, codified at CAA section designating 29 areas in 16 states as designated. 110(a)(2)(D)(i), requires SIPs to prohibit nonattainment for the 2010 1-hour SO emissions that will cause certain 2 NAAQS. See 78 FR 47191 (August 5, 4 The EPA and state documents and public impacts on other states. These interstate comments related to the round 2 final designations transport requirements of the CAA are 1 The EPA approved the October 20, 2015 Oregon are in the docket at regulations.gov with Docket ID also known as ‘‘good neighbor’’ submission as it relates to other requirements in No. EPA–HQ–OAR–2014–0464 and at the EPA’s requirements. final rulemakings published May 16, 2016 (81 FR website for SO2 designations at https:// CAA section 110(a)(2)(D)(i) includes 30181), May 24, 2018 (83 FR 24034), and September www.epa.gov/sulfur-dioxide-designations. 5 four distinct components, commonly 18, 2018 (83 FR 47073). The EPA and state documents and public 2 While designations may provide useful comments related to round 3 final designations are referred to as prongs. The first two information for purposes of analyzing transport, in the docket at regulations.gov with Docket ID No. prongs, codified at CAA section particularly for a more source-specific pollutant EPA–HQ–OAR–2017–0003 and at the EPA’s 110(a)(2)(D)(i)(I), require SIPs to contain such as SO2, the EPA notes that designations website for SO2 designations at https:// adequate provisions which prohibit themselves are not dispositive of whether or not www.epa.gov/sulfur-dioxide-designations. upwind emissions are impacting areas in 6 Consent Decree, Sierra Club v. McCarthy, Case emissions in one state from contributing downwind states. The EPA has consistently taken No. 3:13–cv–3953–SI (N.D. Cal. March 2, 2015). significantly to nonattainment of the the position that CAA section 110(a)(2)(D)(i)(I) This consent decree requires the EPA to sign for relevant NAAQS in any other state addresses ‘‘nonattainment’’ anywhere it may occur publication in the Federal Register documents of (prong 1) and from interfering with in other states, not only in designated the EPA’s promulgation of area designations for the maintenance of the relevant NAAQS in nonattainment areas nor any similar formulation 2010 1-hour SO2 NAAQS by three specific requiring that designations for downwind deadlines: July 2, 2016 (‘‘round 2’’); December 31, any other state (prong 2). The second nonattainment areas must first have occurred. See 2017 (‘‘round 3’’); and December 31, 2020 (‘‘round two prongs, codified at CAA section e.g., Clean Air Interstate Rule, 70 FR 25162, 25265 4’’). 110(a)(2)(D)(i)(II), require SIPs to (May 12, 2005); Cross-State Air Pollution Rule, 76 7 See Technical Support Document: Chapter 34 contain adequate provisions which FR 48208, 48211 (August 8, 2011); Final Response Final Round 3 Area Designations for the 2010 to Petition from New Jersey Regarding SO2 1-Hour SO2 Primary National Ambient Air Quality prohibit emissions in one state from Emissions From the Portland Generating Station, 76 Standard for Oregon at https://www.epa.gov/sites/ interfering with measures required to FR 69052 (November 7, 2011) (finding facility in production/files/2017-12/documents/34-or-so2-rd3- prevent significant deterioration of air violation of the prohibitions of CAA section final.pdf. See also Technical Support Document: quality in any other state (prong 3) and 110(a)(2)(D)(i)(I) with respect to the 2010 1-hour Chapter 34 Intended Round 3 Area Designations for SO2 NAAQS prior to issuance of designations for the 2010 1-Hour SO2 Primary National Ambient Air from interfering with measures to that standard). Quality Standard for Oregon at https:// protect visibility in any other state 3 The term ‘‘round’’ in this instance refers to www.epa.gov/sites/production/files/2017-08/ (prong 4). which ‘‘round of designations.’’ documents/34_or_so2_rd3-final.pdf.

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II. Relevant Factors To Evaluate 2010 information, including air quality, recently available, complete, and quality SO2 Interstate Transport SIPs emission sources and emission trends assured dataset of the NEI. within the State and in bordering states Although SO2 is emitted from a In the submission, Oregon assessed similar universe of point and nonpoint to which it could potentially contribute SO2 emissions source categories in the or interfere.9 sources, interstate transport of SO2 is State using 2011 NEI data, which was unlike the transport of fine particulate III. Oregon SIP Submission and EPA the most recent, complete data at the matter (PM2.5) or ozone, in that SO2 is Analysis time the submission was developed. not a regional pollutant and does not Oregon found that power plants and commonly contribute to widespread A. State Submission other industrial facilities that combust nonattainment over a large (and often On May 12, 2015, Oregon submitted fossil fuel are the primary emitters of multi-state) area. The transport of SO2 is a revision to the Oregon SIP addressing SO2 in the State. Smaller sources more analogous to the transport of lead prongs 1 and 2 of CAA section include processes to extract metal from (Pb) because its physical properties ore and the combustion of sulfur- 110(a)(2)(D)(i)(I) for the 2010 1-hour SO2 result in localized pollutant impacts NAAQS. Oregon conducted a weight of containing fuels in locomotives, ships, 11 very near the emissions source. evidence analysis to examine whether and non-road equipment. Because However, ambient concentrations of SO2 most SO2 is emitted from industrial SO2 emissions from the State adversely do not decrease as quickly with distance affect attainment or maintenance of the facilities, Oregon focused its analysis on from the source as Pb because of the the potential for SO2 emissions from 2010 1-hour SO2 NAAQS in downwind physical properties and typical release states. Oregon’s analysis included a industrial point sources in the State to heights of SO2. Emissions of SO2 travel contribute significantly to review of: SO2 emissions source farther and have wider ranging impacts categories; downwind monitoring sites nonattainment or interfere with than emissions of Pb but do not travel that are potential receptors in maintenance of the 2010 1-hour SO2 far enough to be treated in a manner neighboring states; industrial point NAAQS in any other state. similar to ozone or PM2.5. The sources located near the border with The EPA’s review of more recent NEI approaches adopted by the EPA for neighboring states; and SIP-approved data confirms the State’s findings. We ozone and PM transport are too 2.5 controls that limit SO emissions from note that the EPA released a complete regionally focused and the approach for 2 existing and future Oregon sources. set of NEI data for 2014 addressing all Pb transport is too tightly circumscribed Oregon concluded that SO emissions source categories. However, the EPA to the source to serve as a model for SO 2 2 from Oregon sources will not contribute has, to date, released a limited set of transport. SO transport is therefore a 2 significantly to nonattainment or emissions data for 2017 addressing unique case and requires a different interfere with maintenance of the 2010 stationary sources only. Because the approach. data for 2014 are complete, we reviewed In this proposed rulemaking, as in 1-hour SO2 NAAQS in any other state. and summarized 2014 NEI data in Table prior SO transport analyses, the EPA 2 B. EPA Evaluation Methodology 1 of this document. The data indicate focuses on a 50 km-wide zone because that the majority of SO emissions in the physical properties of SO result in The EPA believes that a reasonable 2 2 Oregon originate from fuel combustion relatively localized pollutant impacts starting point for determining which at either electric utilities or other near an emissions source that drop off sources and emissions activities in with distance. Given the physical Oregon are likely to impact downwind stationary sources such as industrial properties of SO , the EPA selected the air quality in other states with respect boilers, in addition to industrial and 2 other processes. These source categories ‘‘urban scale’’—a spatial scale with to the 2010 1-hour SO2 NAAQS is by dimensions from 4 to 50 kilometers (km) using information in the EPA’s National account for approximately 90% of SO2 from point sources—given the Emissions Inventory (NEI).10 The NEI is emissions in 2014, therefore, we find it usefulness of that range in assessing a comprehensive and detailed estimate reasonable to focus our evaluation on trends in both area-wide air quality and of air emissions for criteria pollutants, potential downwind impacts of SO2 the effectiveness of large-scale pollution criteria pollutant precursors, and emissions from stationary fuel control strategies at such point sources.8 hazardous air pollutants from air combustion or industrial point sources As such, the EPA utilized an assessment emissions sources, that is updated every in Oregon, consistent with the State’s up to 50 km from point sources in order three years using information provided submission. to assess trends in area-wide air quality by the states and other information that might impact downwind states. available to the EPA. The EPA evaluated TABLE 1—SUMMARY OF 2014 NEI 12 As discussed in section III of this data from the 2014 NEI, the most SO2 DATA FOR OREGON document, the EPA first reviewed Oregon’s analysis to assess how the 9 This proposed approval action is based on the Emissions Source category (tons) State evaluated the transport of SO2 to information contained in the administrative record other states, the types of information for this action and does not prejudge any other future EPA action that may make other Mobile—non-road ...... 471 used in the analysis and the conclusions determinations regarding any of the subject state’s Mobile—on-road ...... 307 drawn by the State. The EPA then air quality status. Any such future actions, such as Fuel combustion—electric conducted a weight of evidence area designations under any NAAQS, will be based generation ...... 7,535 analysis, including review of Oregon’s on their own administrative records and the EPA’s Fuel combustion—other ...... 2,607 analyses of information that becomes available at submission and other available those times. Future available information may include, and is not limited to, monitoring data and 11 See page 26 of the Oregon State 8 For the definition of spatial scales for SO2, modeling analyses conducted pursuant to the SO2 Implementation Plan Revision, Attachment C, please see 40 CFR part 58, appendix D, section 4.4 Data Requirements Rule (80 FR 51052, August 21, Addressing the Interstate Transport of Nitrogen (‘‘Sulfur Dioxide (SO2) Design Criteria’’). For further 2015) and information submitted to the EPA by Dioxide, Sulfur Dioxide, Lead, Fine Particulate discussion on how the EPA is applying these states, air agencies, and third-party stakeholders Matter, dated May 12, 2015, in the docket for this definitions with respect to interstate transport of such as citizen groups and industry representatives. action (the submission). 10 12 SO2, see the EPA’s proposal on Connecticut’s SO2 The EPA’s NEI is available at https:// We derived the emissions information from the transport SIP. 82 FR 21351, 21352, 21354 (May 8, www.epa.gov/air-emissions-inventories/national- EPA’s web page https://www.epa.gov/air-emissions- 2017). emissions-inventory. inventories.

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TABLE 1—SUMMARY OF 2014 NEI ambient air quality for Oregon and neighboring states, combined with 12 SO2 DATA FOR OREGON —Con- neighboring states; and (3) Analysis of federal regulations and SIP-approved tinued Permit Requirements, Dispersion regulations affecting SO2 emissions of Modeling, and Source-Specific Controls. Oregon’s sources, further support the Emissions A detailed discussion of Oregon’s SIP EPA’s proposed conclusion. Source category (tons) submission with respect to each of these points follows.13 As a result of our 1. SO2 Emissions Analysis Industrial and other proc- analysis of this information, we believe a. State Submission esses ...... 1,604 that the following factors indicate As discussed in section II of this emissions from Oregon are unlikely to Total ...... 12,524 document, Oregon assessed SO impact a violation in any other state and 2 emissions source categories using 2011 thus are unlikely to contribute NEI data. Oregon found that power Based on the information detailed in significantly to nonattainment of the plants and other industrial facilities that sections III.C.1 through 3 and III.D of 2010 1-hour SO NAAQS in any other 2 combust fossil fuel are the primary this document (available data on state: (1) The combination of low emissions sources and emissions trends, emitters of SO2 in the State. Because ambient concentrations of SO2 in ambient air quality data, and permit Oregon and neighboring states and the most SO2 is emitted from industrial requirements, available dispersion downward trend in monitored facilities, Oregon focused its analysis on modeling results, and enforceable concentrations; (2) our conclusions from the potential for SO2 emissions from regulations) we propose that it is our qualitative analysis of the identified industrial point sources in the State to reasonable to conclude that SO2 sources contribute significantly to sources of SO2 emissions in Oregon and in Oregon will not contribute neighboring states; (3) the downward nonattainment or interfere with significantly to nonattainment (prong 1 maintenance of the 2010 1-hour SO2 trend in SO2 emissions from Oregon of section 110(a)(2)(D)(i)(I)) or interfere sources; (4) available modeling NAAQS in any other state. with maintenance of the 2010 1-hour information for specific SO2 point Oregon’s submission also included an SO2 NAAQS in any other state (prong sources in Oregon; and (5) SIP-approved analysis of specific sources located near 2). We evaluate each prong separately, controls that limit SO2 emissions from the Oregon border. The State focused its as discussed in the following current and future sources. The EPA evaluation on three large facilities paragraphs. proposes, based on the information located near the border with C. EPA Prong 1 Evaluation—Significant available at the time of this rulemaking, Washington, that are also listed in Table Contribution to Nonattainment that these factors, taken together, 3 of this document: The Boardman support the EPA’s proposed Plant, the Wauna Mill, and the Owens- Prong 1 of the good neighbor determination that Oregon will not Brockway Glass facility. provision requires SIPs to prohibit contribute significantly to b. EPA Analysis emissions that will contribute nonattainment of the 2010 1-hour SO2 significantly to nonattainment of a NAAQS in another state. In addition, The EPA also analyzed SO2 emissions NAAQS in another state. Oregon asserts 2017 SO2 emissions for Oregon’s trends in Oregon. Between 2002 and in its SIP submission that emissions sources emitting over 100 tons of SO2 2014, SO2 emissions from Oregon from Oregon will not contribute within 50 km of another state are at sources were reduced significantly. NEI significantly to nonattainment in any distances that make it unlikely that data summarized in Table 2 of this other state with respect to the 2010 these SO2 emissions could interact with document illustrate this trend. SO2 1-hour SO2 standard. To evaluate SO2 emissions from the neighboring emissions from Oregon sources fell Oregon’s satisfaction of prong 1, the states’ sources in such a way as to approximately 72% overall, and EPA assessed the State’s SIP submission contribute significantly to emissions from specific source with respect to the following nonattainment in neighboring states. categories also declined over this time information: (1) SO2 emissions Finally, the downward trends in SO2 period. These trends are due in part to information from Oregon and emissions and relatively low DVs for air the combustion of lower sulfur content neighboring state sources; (2) SO2 quality monitors in Oregon and fuels.

14 TABLE 2—SO2 EMISSION TRENDS IN OREGON (TONS)

SO2 reduction, Source category 2002 2005 2008 2011 2014 2002–2014 (%)

Mobile—non-road ...... 12,470 5,746 2,058 340 471 96 Mobile—on-road ...... 3,760 1,796 532 333 307 92 Fuel combustion—electric generation ..... 12,344 452 11,410 13,169 7,535 40 Fuel combustion—other ...... 10,142 12,911 1,739 3,164 2,607 74 Industrial and other processes ...... 6,341 14,103 3,573 4,046 1,604 75

Total ...... 45,057 35,008 19,312 21,052 12,524 72

13 The EPA has reviewed Oregon’s submission, 14 We derived the emissions trends information and where new or more current information has from the EPA’s web page https://www.epa.gov/air- become available, is including this information as emissions-inventories/air-pollutant-emissions- part of the EPA’s evaluation of this submission. trends-data.

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Emissions trends, while important, do to examine the impacts of emissions Therefore, we reviewed NEI data for not by themselves demonstrate that from stationary sources in Oregon in Oregon point sources with SO2 sources in Oregon will not contribute distances ranging from 0 km to 50 km emissions greater than 100 tpy 15 in significantly to nonattainment in from the facility, based on the ‘‘urban 2017 that are located up to 50 km from neighboring states. scale’’ definition contained in appendix State borders, as summarized in the As discussed in section II of this D to 40 CFR part 58, section 4.4. following table, Table 3. document, the EPA finds it appropriate

16 TABLE 3—SO2 EMISSIONS TRENDS AT OREGON SOURCES WITHIN 50 KM OF BORDER

Distance * 2008 2011 2014 2017 Source name (km) (tons) (tons) (tons) (tons)

Portland General Electric Power Plant (Boardman Plant) .. 17 11,303 13,103 7,439 3,298 Georgia-Pacific Consumer Products LP (Wauna Mill) ...... 1 858 707 571 540 Portland International Airport ...... 2 96 115 125 215 EP Minerals, LLC ...... 33 1 141 66 182 Owens-Brockway Glass Container Inc. (Owens-Brockway Glass) ...... 4 142 119 119 118 *Approximate distance to nearest Oregon border.

The EPA assessed this information to in a neighboring state in such a way as that emitted greater than 100 tpy of SO2 evaluate whether the SO2 emissions to impact a violation of the 2010 1-hour in 2017 and are located within 50 km from these sources could interact with SO2 NAAQS in that state. The following of the State’s border. SO2 emissions from the nearest source Table 4 lists the five sources in Oregon

TABLE 4—OREGON SO2 SOURCES EMITTING GREATER THAN 100 TPY NEAR NEIGHBORING STATES

Approximate 2017 Approximate distance to Nearest neighboring state annual SO2 distance to nearest SO2 source & 2017 Oregon source emissions Oregon Border Closest neighboring state neighboring emissions (tons) (km) state SO2 (>100 tons SO2) source (km)

Portland General Electric 3,298 17 Washington ...... 83 Boise Paper (885 tons). Power Plant (Boardman Plant). Georgia-Pacific Consumer 540 1 Washington ...... 33 Nippon Dynawave Packaging Products LP (Wauna Mill). Co. (390 tons). Portland International Airport. 215 2 Washington ...... 61 Longview Fibre Paper and Packaging, Inc. (198 tons). EP Minerals, LLC ...... 182 33 Idaho ...... 286 The Amalgamated Sugar Company LLC—Twin Falls (635 tons). Owens-Brockway Glass Con- 118 4 Washington ...... 66 Longview Fibre Paper and tainer Inc. (Owens- Packaging, Inc. Brockway Glass). (198 tons).

Only one source emitting greater than nearest out-of-state source make it 2. Ambient Air Quality Data Analysis 100 tpy in Oregon located within 50 km unlikely that SO2 emissions from these a. State Submission of the State border is also within 50 km Oregon sources could interact with SO2 of a source also emitting greater than emissions from these out-of-state In its submission, Oregon identified 100 tpy in a neighboring state. The sources in such a way as to contribute SO2 monitoring sites in the neighboring Georgia Pacific Wauna Mill facility significantly to nonattainment in states of California, Idaho, Nevada, and Washington that are most likely to be (discussed in the following paragraphs) Washington and Idaho. Further impacted by SO emissions from is located 1 km from the State border discussion of all Oregon sources in 2 sources in Oregon. The submission lists and 33 km from the nearest out-of-state Table 4 can be found in section III.C.2.b each SO2 monitoring site considered to source emitting greater than 100 tpy, of this document. be a potential downwind receptor and Nippon Dynawave Packaging in the most recent monitoring data at the Washington. The EPA believes that the receptor.17 Oregon found that the 2011– distances greater than 50 km between all 2013 design value 18 at each identified remaining Oregon sources and the receptor was well below the 2010 1-

15 18 We have limited our analysis to Oregon sources contributing to SO2 concentrations above the The design value is a statistical representation emitting at least 100 tpy of SO2 because in the NAAQS. of SO2 in ambient air based on the 3-year average absence of special factors, for example the presence 16 We derived the emissions information from the of the annual 99th percentile of 1-hour daily of a nearby larger source or unusual physical EPA’s web page https://www.epa.gov/air-emissions- maximum concentrations, measures in parts per factors, Oregon sources emitting less than 100 tpy inventories. billion (ppb). can appropriately be presumed to not be causing or 17 See page 14 (Table 2) of the submission.

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hour SO2 NAAQS (75 ppb) and that SO2 interstate transport of SO2 from The following table, Table 5, shows emissions from Oregon were therefore emission sources in Oregon. We that the Multnomah County, Oregon not significantly contributing to reviewed the most recent SO2 monitoring site is the only SO2 monitor nonattainment in any other state. monitoring data available from the in Oregon and is within 50 km of the EPA’s Air Quality System for the b. EPA Analysis Oregon border. The most recent design following set of receptors: (1) All value at this monitor, for the years The EPA also evaluated ambient air monitors in Oregon; (2) the monitor 2016–2018, is 3 ppb. This design value quality data in Oregon and neighboring with the highest design value in each is well below the 2010 1-hour SO2 states to determine whether there were neighboring state; (3) the monitor in NAAQS (75 ppb). In addition, all any monitoring sites, particularly near each neighboring state located closest to monitors identified in neighboring the Oregon border, with elevated SO the Oregon border; and (4) all monitors 2 states are below the 2010 1-hour SO concentrations that might warrant in each neighboring state within 50 km 2 NAAQS. further investigation with respect to of the Oregon border.

19 TABLE 5—SO2 DESIGN VALUES FOR MONITORS IN OREGON AND NEIGHBORING STATES

Distance * 2014–2016 2015–2017 2016–2018 State/county Site ID (km) (ppb) (ppb) (ppb)

California/Contra Costa ...... 060131001 433 14 14 16 California/Humboldt ...... 060231004 135 1 1 1 Idaho/Ada ...... 160010010 55 4 3 3 Idaho/Pocatello ...... 160050004 366 39 38 38 Nevada/Clark ...... 320030540 668 7 6 6 Nevada/Washoe ...... 320310016 275 5 5 5 Oregon/Multnomah ...... 410510080 12 3 3 3 Washington/Skagit ...... 530570011 327 5 4 3 *Approximate distance to nearest Oregon border.

These air quality data do not, by a. State Submission predicted impacts to ambient air themselves, indicate any particular i. Boardman Plant associated with the construction and location that would warrant further operation of a proposed major source or investigation with respect to SO2 The Boardman Plant is a 575- major modification. The analysis is emissions sources that might contribute megawatt coal-fired power plant designed to determine whether new significantly to nonattainment in the operated by Portland General Electric, emissions from a proposed major neighboring states. Because the located approximately 17 km from the stationary source or major modification, monitoring network is not necessarily border with Washington. In its in conjunction with other applicable designed to find all locations of high submission, Oregon stated that the emissions from existing sources Boardman Plant is subject to SIP- SO2 concentrations, this observation (competing sources), will or will not indicates an absence of evidence of approved SO2 controls established to cause or contribute to a violation of any impact at these locations but is not meet regional haze planning applicable NAAQS. PSD dispersion sufficient evidence by itself of an requirements for Best Available Retrofit modeling is conducted at a 50 km range absence of impact at all locations in the Technology (BART) (76 FR 38997, July and includes any portion of the range neighboring states. 5, 2011). The SIP requires the Boardman that may extend into neighboring states. Plant to cease burning coal by December In its submission, Oregon stated that a 3. Analysis of Permit Requirements, 31, 2020 and requires the use of dry review of the modeling concluded Dispersion Modeling, and Source- sorbent injection controls to further predicted impacts from the Wauna Mill Specific Controls limit SO2 emissions from the plant to ambient air were not expected to during the time period leading up to the cause or contribute to a violation of any As previously discussed, Oregon shutdown date (2018 through 2020). applicable NAAQS within Oregon or in identified three sources (Boardman Based on this information, Oregon neighboring states. Plant, the Wauna Mill, and the Owens- concluded that SO emissions from the 2 iii. Owens-Brockway Glass Brockway Glass facility), for which the Boardman Plant will not contribute State reviewed existing permitting significantly to nonattainment of the Owens-Brockway Glass Container Inc. information and available dispersion 2010 1-hour SO2 NAAQS in any other is located in Portland, Oregon, 4 km modeling, in addition to SIP-approved state. from the border with Washington. controls that apply to the sources to ii. Wauna Mill Oregon’s submission stated that Owens- limit SO2 emissions. In the following Brockway Glass was evaluated during paragraphs, we have summarized the In its submission, Oregon evaluated PSD analyses for other major source source-specific analysis in the State’s permit information for the Wauna Mill permitting actions.20 Oregon reviewed submission followed by the EPA’s including the air quality analysis the permitting analyses and stated that supplemental analysis where necessary conducted during the prevention of the analyses demonstrated the proposed or where new information became significant deterioration (PSD) source’s emissions considered in available after the submission was permitting process for the facility. A conjunction with the emissions from developed. PSD air quality analysis assesses the Owens-Brockway Glass and other

19 We compiled the monitoring data from the 20 See page 26 of the submission. EPA’s web page https://www.epa.gov/air-trends/air- quality-design-values#report.

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sources in the area do not cause or Wauna Mill and SIP-approved Portland International Airport could contribute to a violation of any provisions that limit SO2 emissions interact with SO2 emissions from applicable NAAQS within the 50-km from the Wauna Mill, which we have Longview Fibre Paper and Packaging, area evaluated. Oregon concluded that summarized in the following Inc., in such a way as to impact a this source will not contribute paragraphs. violation of the 2010 1-hour SO2 significantly to nonattainment or In 2010, the Wauna Mill was NAAQS in that state. Therefore, we interfere with maintenance of the 2010 evaluated as part of the Oregon Regional believe it is reasonable to conclude that 1-hour SO2 NAAQS. Haze Plan and determined to be a SO2 emissions from Portland BART-eligible source. The Wauna Mill b. EPA Analysis International Airport will not contribute underwent BART analysis by Oregon significantly to nonattainment of the i. Boardman Plant and elected to take federally enforceable 2010 1-hour SO2 NAAQS in Washington SO limits to comply with BART In accordance with the EPA’s SO2 2 or any other state. requirements promulgated in Oregon Data Requirements Rule, Oregon iv. EP Minerals Inc. characterized the Boardman Plant by Administrative Rules (OAR) and conducting air dispersion modeling. approved by the EPA as part of the EP Minerals Inc. operates a Oregon modeled the area using a Oregon Regional Haze Plan.23 The limits diatomaceous earth processing plant in receptor grid that extended 50 km from were added to the facility’s title V Vale, Oregon, approximately 33 km the source (which extended into the operating permit, and to achieve the from the Idaho border. The source neighboring State of Washington). limits, the mill permanently reduced the emitted approximately 182 tons of SO2 Oregon’s modeling accounted for use of fuel oil and limited production in 2017, as shown in Table 4 of this 24 allowable potential emissions from the rates. Emissions at the Wauna Mill, as document. The State submission did not Boardman Plant and 11 other Oregon shown in Table 3 of this document, are address this source therefore, we have declining. Based on this information SO2 emissions sources in the area. The supplemented the State’s review with State submitted the resulting model data and the information provided by the the following assessment. EP Minerals to the EPA and indicated that Oregon State, the EPA believes it is reasonable Inc. is a title V major stationary source found no modeled exceedances of the to conclude that the Wauna Mill will with kilns and dryers subject to SO2 not contribute significantly to 25 2010 1-hour SO2 NAAQS within 50 km emission limits. The source is subject of the Boardman Plant. The maximum nonattainment of the 2010 1-hour SO2 to monitoring, recordkeeping, and modeled concentration was found to be NAAQS in Washington or any other reporting requirements, as a condition 73 ppb and was projected to occur state. of operating the source. In addition, SIP- southeast of the Boardman Plant, in the iii. Portland International Airport approved sulfur-in-fuel limits apply, as opposite direction of the border with well as Federal Standards of The Portland International Airport is Performance for Calciners and Dryers in Washington. The State recommended located approximately 2 km from the the EPA designate the area around the Mineral Industries. border with Washington. Oregon’s The distance between EP Minerals Boardman Plant as unclassifiable/ submission did not specifically address attainment.21 The EPA agreed and Inc., and the nearest out-of-state source the airport; therefore, we have emitting greater than 100 tons, the designated the entire State of Oregon conducted our own evaluation. In 2017, attainment/unclassifiable for the 2010 1- Amalgamated Sugar Company in Twin SO2 emissions at the airport totaled Falls, Idaho, is 286 km. In 2017, the hour SO2 NAAQS (83 FR 1098, January approximately 215 tons, as shown in 22 Amalgamated Sugar Company—Twin 9, 2018). Table 4 of this document. While these Based on the information provided by Falls emitted 635 tons of SO2. Based on emissions are greater than some of the the State and the additional information the distance between these sources, it is industrial point sources evaluated, it is available to the EPA, specifically the unlikely that SO2 emissions from EP important to distinguish SO2 emissions modeling results for the area around the Minerals Inc., could interact with SO2 at an airport from those at a typical Boardman Plant, we propose to concur emissions from the Amalgamated Sugar industrial point source, in part because with the State’s conclusion that SO Company—Twin Falls in such a way as 2 airport-related emissions tend to be emissions from the Boardman Plant will to impact a violation of the 2010 1-hour spread across large areas and operations, not contribute significantly to SO2 NAAQS in that state. Therefore, we including emissions from airplanes nonattainment of the 2010 1-hour SO believe it is reasonable to conclude that 2 departing from and arriving at the NAAQS in any other state. SO2 emissions from EP Minerals Inc., airport and support vehicles that service will not contribute significantly to ii. Wauna Mill airplanes and transport passengers. nonattainment of the 2010 1-hour SO The distance between Portland 2 The Georgia-Pacific Consumer NAAQS in Idaho or any other state. Products LP (Wauna Mill) is in International Airport and the nearest Clatskanie, Oregon and is located within out-of-state source emitting greater than v. Owens-Brockway Glass 50 km of the Oregon border and within 100 tons, Longview Fibre Paper and Owens-Brockway Glass Container Inc. Packaging, Inc. in Longview, 50 km of two SO2 sources emitting is located in Portland, Oregon, 4 km greater than 100 tpy in Longview, Washington, is 61 km. In 2017, from the border with Washington. The Longview Fibre Paper and Packaging, Washington. Elevated levels of SO2, to distance between Owens-Brockway Inc., emitted 198 tons of SO2. Based on which SO2 emitted in Oregon may have Glass Container Inc., and the nearest a downwind impact, are most likely to the distance between these sources, it is out-of-state source emitting greater than be found near such sources. Therefore, unlikely that SO2 emissions from 100 tons, the Longview Fibre Paper and we believe it is appropriate to further Packaging, Inc., in Longview, 23 See Oregon Regional Haze Plan submitted on Washington, is 66 km. In 2017, the review permit information for the December 20, 2010, approved by the EPA on July 5, 2011 (76 FR 38897). Longview Fibre Paper and Packaging, 21 See designation technical support document at 24 See title V operating permit number 04–0004– https://www.epa.gov/sites/production/files/2017- TV–01, issued June 18, 2009 and modified on 25 Title V operating permit number 23–0032–TV– 08/documents/34_or_so2_rd3-final.pdf. December 2, 2010, available online at: https:// 01, issued September 29, 2017, available online at: 22 See 40 CFR 81.338. www.deq.state.or.us/aq/aqpermitsonline. https://www.deq.state.or.us/aq/aqpermitsonline.

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Inc., emitted 198 tons of SO2. Based on 4. Conclusion significant contribution to the distance between these sources, it is In conclusion, for prong 1, we believe nonattainment (prong 1). Specifically, as unlikely that SO2 emissions from that the following factors indicate described in our prong 1 evaluation and Owens-Brockway Glass Container Inc., emissions from Oregon are unlikely to summarized in Table 3 of this could interact with SO2 emissions from impact a violation in any other state and document, we have a sufficient basis to the Longview Fibre Paper and thus are unlikely to contribute conclude that there are no 2010 1-hour Packaging, Inc in such a way as to significantly to nonattainment of the SO2 NAAQS violations in other states near their shared borders with Oregon. impact a violation of the 2010 1-hour 2010 1-hour SO2 NAAQS in any other SO2 NAAQS in that state. Therefore, we state: (1) The combination of low Moreover, we have a sufficient basis to conclude that SO2 emissions from believe it is reasonable to conclude that ambient concentrations of SO2 in sources in Oregon are highly unlikely to SO2 emissions from Owens-Brockway Oregon and neighboring states and the Glass Container Inc., will not contribute downward trend in monitored increase sufficiently to alter this significantly to nonattainment of the concentrations; (2) our conclusions from situation, given the SIP-approved 2010 1-hour SO NAAQS in Idaho or our qualitative analysis of the identified controls limiting emissions from large 2 sources near the border. any other state. sources of SO2 emissions in Oregon and neighboring states; (3) the downward 2. Emissions Trends vi. TransAlta Central Generation Power trend in SO emissions from Oregon 2 Statewide SO emissions from Oregon Plant sources; (4) available modeling 2 sources have decreased substantially information for specific SO point The TransAlta Central Generation 2 over time, as shown in the preceding sources in Oregon; and (5) SIP-approved Power Plant (TransAlta) in Lewis Table 2 of this document.27 From 2002 controls that limit SO emissions from County, Washington, is located 2 to 2014, total statewide SO emissions current and future sources. The EPA 2 approximately 66 km from the Oregon- decreased by approximately 72 percent. proposes, based on the information This trend of decreasing SO emissions Washington state border. TransAlta is available at the time of this rulemaking, 2 located approximately 78 km from the that these factors, taken together, does not by itself demonstrate that areas nearest source in Oregon emitting support the EPA’s proposed in Oregon and neighboring states will greater than 100 tons, the Wauna Mill, determination that Oregon will not not have issues maintaining the 2010 1- which was further discussed earlier. In contribute significantly to hour SO2 NAAQS. However, as a piece of this weight of evidence analysis for 2017, TransAlta emitted 1,689 tons of nonattainment of the 2010 1-hour SO2 SO2. TransAlta was required to be NAAQS in another state. In addition, prong 2, it provides further indication (when considered alongside low characterized pursuant the DRR by the 2017 SO2 emissions for Oregon’s monitor values in neighboring states) State of Washington. The State of sources emitting over 100 tons of SO2 Washington elected to characterize the within 50 km of another state are at that such maintenance issues are area around TransAlta through air distances that make it unlikely that unlikely. dispersion modeling. In Round 3 of SO2 these SO2 emissions could interact with 3. SIP-Approved New Source Review designations, the EPA determined the SO2 emissions from the neighboring Program modeling supplied by Washington was states’ sources in such a way as to The EPA notes that any future major not sufficient to determine the area as in contribute significantly to sources of SO emissions will be attainment of the NAAQS. Therefore, nonattainment in neighboring states. 2 addressed by Oregon’s SIP-approved the EPA designated Lewis and Thurston Finally, the downward trends in SO2 PSD program.28 Future minor sources of emissions and relatively low DVs for air Counties in Washington as SO emissions will be addressed by 26 quality monitors in Oregon and 2 unclassifiable. This unclassifiable area Oregon’s SIP-approved minor new neighboring states, combined with is approximately 22 km from the source review permit program.29 The federal regulations and SIP-approved Oregon-Washington border. Due to the EPA believes that the permitting regulations affecting SO emissions of distance between the Wauna Mill and 2 regulations contained within these Oregon’s sources, further support the TransAlta, it is unlikely that SO2 programs should help ensure that EPA’s proposed conclusion. Therefore, emissions from Wauna Mill could ambient concentrations of SO in we are proposing to approve the Oregon 2 interact with SO2 emissions from neighboring states are not exceeded as a SIP revision as meeting CAA section TransAlta in such a way as to impact a result of new facility construction or 110(a)(2)(D)(i)(I) prong 1 for purposes of violation of the 2010 1-hour SO2 modification occurring in Oregon. NAAQS in that state. Therefore, we the 2010 1-hour SO2 NAAQS. 4. Conclusion believe it is reasonable to conclude that D. EPA Prong 2 Evaluation— SO2 emissions from Wauna Mill will not Interference With Maintenance In conclusion, for prong 2, we contribute significantly to reviewed the technical information 1. Summary nonattainment of the 2010 1-hour SO2 considered for interstate transport prong NAAQS in Washington or any other Prong 2 of CAA section 1, additional information about state. 110(a)(2)(D)(i)(I) requires an evaluation emission trends, as well as the of the potential impact of a state’s requirements of Oregon’s SIP-approved 26 See Technical Support Document: Chapter 42 emissions on areas in other states that new source review program. We believe Final Round 3 Area Designations for the 2010 1- are not violating the NAAQS. This that the following factors indicate Hour SO2 Primary National Ambient Air Quality evaluation is not limited to only former emissions from Oregon will not interfere Standard for Washington at https://www.epa.gov/ sites/production/files/2017-12/documents/42-wa- nonattainment areas with EPA-approved so2-rd3-final.pdf. See also Technical Support maintenance plans, but rather it focuses 27 See additional emissions trends data at: https:// Document: Chapter 42 Intended Round 3 Area on any areas that may have trouble www.epa.gov/air-emissions-inventories/air- pollutant-emissions-trends-data. Designations for the 2010 1-Hour SO2 Primary attaining and maintaining the standard National Ambient Air Quality Standard for 28 The EPA recently approved revisions to the Washington at https://www.epa.gov/sites/ in the future. Our prong 2 evaluation for Oregon new source review permitting programs on production/files/2017-08/documents/43_wa_so2_ Oregon builds on our analysis in the October 11, 2017 (82 FR 47122). rd3-final.pdf. prior prong 1 evaluation, regarding 29 Ibid.

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with maintenance of the 2010 1-hour Thus, in reviewing SIP submissions, the List of Subjects in 40 CFR Part 52 SO2 NAAQS in any other state: (1) The EPA’s role is to approve state choices, Environmental protection, Air combination of low ambient provided that they meet the criteria of pollution control, Incorporation by concentrations of SO2 in Oregon and the CAA. Accordingly, this proposed reference, Intergovernmental relations, neighboring states and the downward action merely approves state law as Nitrogen dioxide, Particulate Matter, trend in monitored concentrations; (2) meeting federal requirements and does Reporting and recordkeeping our conclusions from our qualitative not impose additional requirements requirements, Sulfur dioxide, Volatile analysis of the identified sources of SO 2 beyond those imposed by state law. For organic compounds. emissions; (3) the downward trend in that reason, this proposed action: SO2 emissions from Oregon sources; (4) • Is not a ‘‘significant regulatory Authority: 42 U.S.C. 7401 et seq. available modeling information for action’’ subject to review by the Office Dated: May 7, 2020. specific SO2 point sources in Oregon; of Management and Budget under Christopher Hladick, and (5) SIP-approved controls that limit Executive Orders 12866 (58 FR 51735, Regional Administrator, Region 10. SO emissions from current and future 2 October 4, 1993) and 13563 (76 FR 3821, [FR Doc. 2020–10228 Filed 5–14–20; 8:45 am] sources. The EPA proposes, based on January 21, 2011); the information available at the time of • Is not an Executive Order 13771 (82 BILLING CODE 6560–50–P this rulemaking, that these factors, taken FR 9339, February 2, 2017) regulatory together, support the EPA’s proposed action because SIP approvals are ENVIRONMENTAL PROTECTION determination that Oregon will not exempted under Executive Order 12866; AGENCY interfere with maintenance of the 2010 • Does not impose an information 1-hour SO2 NAAQS in any other state. collection burden under the provisions 40 CFR Part 52 In addition, 2017 SO2 emissions for of the Paperwork Reduction Act (44 Oregon’s sources emitting over 100 tons U.S.C. 3501 et seq.); [EPA–R09–OAR–2019–0449; FRL–10008– • 59–Region 9] of SO2 within 50 km of another state are Is certified as not having a at distances that make it unlikely that significant economic impact on a Approval and Limited Approval and these SO emissions could interact with substantial number of small entities 2 Limited Disapproval of California Air SO emissions from the neighboring under the Regulatory Flexibility Act (5 2 Plan Revisions; San Diego County Air states’ sources in such a way as to U.S.C. 601 et seq.); Pollution Control District; Stationary contribute significantly to • Does not contain any unfunded Source Permits nonattainment in neighboring states. mandate or significantly or uniquely Finally, the downward trends in SO2 affect small governments, as described AGENCY: Environmental Protection emissions and relatively low DVs for air in the Unfunded Mandates Reform Act Agency (EPA). of 1995 (Pub. L. 104–4); quality monitors in Oregon and ACTION: Proposed rule. neighboring states, combined with • Does not have federalism federal regulations and SIP-approved implications as specified in Executive SUMMARY: The Environmental Protection regulations affecting SO2 emissions of Order 13132 (64 FR 43255, August 10, Agency (EPA) is proposing action on Oregon’s sources, further support the 1999); • four permitting rules submitted as a EPA’s proposed conclusion. Therefore, Is not an economically significant revision to the San Diego County Air we are proposing to approve the Oregon regulatory action based on health or Pollution Control District (SDAPCD or SIP as meeting CAA section safety risks subject to Executive Order ‘‘District’’) portion of the California 110(a)(2)(D)(i)(I) prong 2 for purposes of 13045 (62 FR 19885, April 23, 1997); State Implementation Plan (SIP). We are • Is not a significant regulatory action the 2010 1-hour SO2 NAAQS. proposing a limited approval and subject to Executive Order 13211 (66 FR IV. Proposed Action limited disapproval of one rule and 28355, May 22, 2001); proposing approval of the remaining • Is not subject to requirements of The EPA is proposing to approve the three rules. These revisions concern the section 12(d) of the National October 20, 2015, Oregon SIP District’s New Source Review (NSR) Technology Transfer and Advancement submission as meeting the interstate permitting program for new and Act of 1995 (15 U.S.C. 272 note) because transport requirements of CAA section modified sources of air pollution under it does not involve technical standards; 110(a)(2)(D)(i)(I) for the 2010 1-hour SO2 section 110(a)(2)(C) and part D of title I and NAAQS. The EPA is proposing this of the Clean Air Act (CAA). This action • Does not provide the EPA with the approval based on our review of the updates the SDAPCD’s applicable SIP discretionary authority to address, as information and analysis provided by with revised rules that the District has appropriate, disproportionate human Oregon in the State’s submission, as amended to address deficiencies health or environmental effects, using well as additional relevant information, identified in a previous conditional practicable and legally permissible which indicates that in-State air approval action. We are taking methods, under Executive Order 12898 emissions will not contribute comments on this proposal and plan to (59 FR 7629, February 16, 1994). significantly to nonattainment or follow with a final action. interfere with maintenance of the 2010 The proposed SIP would not be DATES: Comments must be received on 1-hour SO2 NAAQS in any other state. approved to apply on any Indian This action is being taken under section reservation land or in any other area or before June 15, 2020. 110 of the CAA. where the EPA or an Indian tribe has ADDRESSES: Submit your comments, demonstrated that a tribe has identified by Docket ID No. EPA–R09– V. Statutory and Executive Order jurisdiction. In those areas of Indian OAR–2019–0449 at http:// Reviews country, the proposed rule does not www.regulations.gov. For comments Under the CAA, the Administrator is have tribal implications and will not submitted at Regulations.gov, follow the required to approve a SIP submission impose substantial direct costs on tribal online instructions for submitting that complies with the provisions of the governments or preempt tribal law as comments. Once submitted, comments CAA and applicable federal regulations. specified by Executive Order 13175 (65 cannot be edited or removed from 42 U.S.C. 7410(k); 40 CFR 52.02(a). FR 67249, November 9, 2000). Regulations.gov. The EPA may publish

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any comment received to its public http://www.epa.gov/dockets/ I. The State’s Submittal docket. Do not submit electronically any commenting-epa-dockets. A. What rules did the State submit? information you consider to be FOR FURTHER INFORMATION CONTACT: Confidential Business Information (CBI) Table 1 lists the rules addressed by Sheila Tsai, EPA Region IX, Air–3–1, 75 this proposal with the dates when they or other information whose disclosure is Hawthorne St., San Francisco, CA restricted by statute. Multimedia were adopted by the SDAPCD and 94105. By phone: (415) 972–3328 or by submitted by the California Air submissions (audio, video, etc.) must be email at [email protected]. accompanied by a written comment. Resources Board (CARB), which is the The written comment is considered the SUPPLEMENTARY INFORMATION: governor’s designee for California SIP submittals. These rules constitute part official comment and should include Throughout this document, ‘‘we,’’ ‘‘us’’ of the SDAPCD’s current program for discussion of all points you wish to and ‘‘our’’ refer to the EPA. preconstruction review and permitting make. The EPA will generally not Table of Contents of new or modified stationary sources consider comments or comment I. The State’s Submittal under its jurisdiction. The rule revisions contents located outside of the primary A. What rules did the State submit? that are the subject of this action submission (i.e. on the web, cloud, or B. Are there other versions of these rules? represent an update to the SDAPCD’s other file sharing system). For C. What is the purpose of the submitted preconstruction review and permitting additional submission methods, please rule revisions? program and are intended to satisfy the contact the person identified in the FOR II. The EPA’s Evaluation and Action requirements under part D of title I of A. How is the EPA evaluating the rules? FURTHER INFORMATION CONTACT section. the Act (‘‘nonattainment NSR’’ or For the full EPA public comment policy, B. Do the rules meet the evaluation criteria? ‘‘NNSR’’) as well as the general information about CBI or multimedia C. Proposed action and public comment preconstruction review requirements submissions, and general guidance on III. Incorporation by Reference under section 110(a)(2)(C) of the Act making effective comments, please visit IV. Statutory and Executive Order Reviews (‘‘minor NSR’’).

TABLE 1—SUBMITTED RULES

Rule No. Rule title Adopted date Submitted date

20.1 ...... New Source Review—General Provisions ...... 06/26/2019 07/19/2019 20.2 * ...... New Source Review—Non-Major Stationary Sources ...... 06/26/2019 07/19/2019 20.3 * ...... New Source Review—Major Stationary Sources and PSD Stationary Sources ...... 06/26/2019 07/19/2019 20.4 * ...... New Source Review—Portable Emission Units ...... 06/26/2019 07/19/2019 * The following paragraphs of the Rules 20.2–20.4 were not submitted to the EPA for inclusion in the San Diego SIP: Rule 20.2 paragraphs (d)(2)(i)(B), (d)(2)(v), (d)(2)(vi)(B) and (d)(3); Rule 20.3 paragraphs (d)(1)(vi), (d)(2)(i)(B), (d)(2)(v), (d)(2)(vi)(B) and (d)(3); and Rule 20.4 para- graphs (b)(2), (b)(3), (d)(1)(iii), (d)(2)(i)(B), (d)(2)(iv), (d)(2)(v)(B), (d)(3) and (d)(5).

On August 6, 2019, the EPA B. Are there other versions of these consistent with the requirements at determined that the submittal of the rules? CAA section 110(k)(4) for conditional revised Rules 20.1, 20.2, 20.3, and 20.4 approval. 83 FR 50007 (October 4, meets the completeness criteria in 40 The EPA conditionally approved 2018). That action also included a CFR part 51 appendix V, which must be Rules 20.1–20.4 into the SDAPCD conditional approval of Rule 20.6, and met before formal EPA review. portion of the California SIP in 2018, a full approval of Rules 11, 20, and 24. based on the District’s commitment to The conditionally approved versions of adopt and submit revisions to address Rules 20.1–20.4 are identified below in identified deficiencies within one year, Table 2.

TABLE 2—SIP APPROVED RULES

Federal Register Rule No. Rule title SIP approval date Citation

20.1 ...... New Source Review—General Provisions ...... 10/4/2018 83 FR 50007 20.2 ...... New Source Review—Non-Major Stationary Sources ...... 10/4/2018 83 FR 50007 20.3 ...... New Source Review—Major Stationary Sources and PSD Stationary Sources ...... 10/4/2018 83 FR 50007 20.4 ...... New Source Review—Portable Emission Units ...... 10/4/2018 83 FR 50007

If the EPA finalizes the action C. What is the purpose of the submitted NNSR requirements apply only for areas proposed herein, these rules will be rule revisions? designated as nonattainment for one or replaced in the SIP by the submitted set more National Ambient Air Quality of rules listed in Table 1. Additionally, As noted above and described in Standards (NAAQS). San Diego County as described below, the EPA’s final further detail below, the submitted rules is classified as a serious nonattainment approval of Rules 20.1–20.4 will resolve are intended to satisfy aspects of the area for the 2008 ozone standard and a our conditional approval of Rule 20.6. minor NSR and NNSR requirements of moderate nonattainment area for the section 110(a)(2)(C) and part D of title I 2015 8-hour ozone standard. San Diego of the Act, and related EPA regulations. County is designated attainment or Minor NSR requirements are generally unclassifiable for all other NAAQS. See applicable for SIPs in all areas, while 40 CFR 81.305. Therefore, in addition to

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being subject to the requirements for (PSD) 1 and NNSR permitting programs to ensure that construction will not minor NSR at section 110(a)(2)(C) of the under parts C and D of title I of the Act violate the state’s control strategy or Act, California is required to adopt and that apply to major sources in interfere with attainment or implement a SIP-approved NNSR attainment and nonattainment areas, maintenance of the NAAQS, provide for permitting program that applies to new respectively. public availability of relevant or modified major stationary sources of Part D of title I of the Act, and the information, and meet other ozone and ozone precursors within the implementing regulations at 40 CFR requirements of the minor NSR San Diego County nonattainment area, 51.165, contain the NNSR program regulations at 40 CFR 51.160–164. In under part D of title I of the Act. requirements for major stationary addition, the rules include the These rules were submitted to address sources and major modifications (as definitions, applicability procedures, deficiencies identified in the EPA’s those terms are defined at 40 CFR and requirements for sources in 2018 action to approve and 51.165) at facilities that are located in a nonattainment areas to obtain emission conditionally approve updates to the nonattainment area and are major reduction offsets and comply with the SDAPCD’s SIP-approved NSR sources for the pollutants for which the lowest achievable emissions rate, as permitting program. See 83 FR 50007 area has been designated nonattainment. required by the NNSR regulations at 40 (October 4, 2018). Additionally, the Section 110(a)(2)(A) of the Act CFR 51.165. Rule 20.1 incorporates rules have been revised to include NOX requires that regulations submitted to general regulatory requirements of the and VOC applicability thresholds and the EPA for SIP approval must be clear minor NSR program and definitions, offset ratios applicable to severe and and legally enforceable. Section 110(l) applicability procedures, and extreme ozone nonattainment areas, and of the Act prohibits the EPA from requirements of the minor NSR and to incorporate federal requirements for approving any SIP revisions that would NNSR programs, while Rules 20.2, 20.3, interprecursor offsetting that were interfere with any applicable and 20.4 apply applicable elements of added in the EPA’s Implementation requirement concerning attainment and the program to minor stationary sources, Rule for the 2015 Ozone NAAQS. See 83 reasonable further progress (RFP) or any major stationary sources, and portable FR 62998 (December 6, 2018). other applicable requirement of the emission units, respectively. For more CAA. Section 193 of the Act prohibits information about how the rules satisfy II. The EPA’s Evaluation and Action the modification of a SIP-approved these requirements, see our 2018 A. How is the EPA evaluating the rules? control requirement in effect before conditional approval of the District’s November 15, 1990 in a nonattainment minor NSR and NNSR program at 83 FR The EPA evaluated the submitted area, unless the modification ensures 50007 (October 4, 2018). rules to determine whether they address equivalent or greater emission The EPA has identified one deficiency the deficiencies identified in our 2018 reductions of the relevant pollutant(s). in Rule 20.1(a) related to 40 CFR conditional approval, and for With respect to procedures, CAA 51.160(a) and (b) and CAA section compliance with applicable sections 110(a) and 110(l) require that a 173(a). The District revised Rule 20.1(a) requirements of section 110(a)(2)(C) and state conduct reasonable notice and to specify that the rule applies to a part D of title I of the CAA and hearing before adopting a SIP revision. permit application based on the associated regulations at 40 CFR B. Do the rules meet the evaluation requirements in the rule as in effect on 51.160–165, consistent with the the date that the application is criteria? District’s current classification as a determined to be complete. By serious nonattainment area for the 2008 With the exception noted below, the specifying the rule’s applicability based ozone standard and a moderate EPA finds that the submitted rules on the date of application completeness, nonattainment area for the 2015 8-hour generally satisfy the applicable CAA this language may limit the APCO’s ozone standard. We have also reviewed and regulatory requirements. ability to ensure a source will comply the rules for consistency with other Accordingly, we are proposing a full with applicable NSR programs CAA general requirements for SIP approval of Rules 20.2–20.4 and a requirements at the time the permit is submittals, including requirements at limited approval and limited issued. Because of this deficiency, and section 110(a)(2) regarding rule disapproval of Rule 20.1 under CAA our determination that other revisions to enforceability, and requirements at section 110(k)(3) and 301(a). Below, we the rule conform to federal sections 110(l) and 193 for SIP discuss generally our evaluation of the requirements, we are proposing a revisions. submitted rules. The technical support limited approval and limited Section 110(a)(2)(C) of the Act document (TSD) included in the docket disapproval of Rule 20.1. In order to requires each SIP to include a program for this proposed rulemaking contains a correct this deficiency, we recommend to regulate the modification and more detailed analysis. that SDAPCD remove or revise the construction of any stationary source We find that the submitted rules language added in the revised Rule within the areas covered by the SIP as generally satisfy the NNSR and minor 20.1(a). The TSD for this action contains necessary to assure attainment and NSR requirements. The rules clearly additional detail regarding our maintenance of the NAAQS. The EPA’s identify the kinds of projects subject to determination and recommendation. regulations at 40 CFR 51.160–51.164 review under the District’s program, The submitted rules comply with the provide general programmatic include legally enforceable procedures substantive and procedural requirements to implement this requirements of CAA section 110(l). statutory mandate. These requirements, 1 The SDAPCD has elected not to submit rules to With respect to the procedural commonly referred to as the ‘‘minor satisfy requirements of the PSD program under part requirements, based on our review of C of title I of the Act for major stationary sources NSR’’ or ‘‘general NSR’’ program, apply in attainment areas at this time. Accordingly, the the public process documentation to both major and non-major stationary EPA is not evaluating whether this SIP submittal included with the submitted rules, we sources and modifications and in both satisfies PSD program requirements at 40 CFR find that the SDAPCD has provided attainment and nonattainment areas, in 51.166, and some portions of Rules 20.2–20.4 sufficient evidence of public notice and addressing major sources in attainment areas are contrast to the specific statutory and excluded from the submittal. See Table 1. The EPA opportunity for comment and public regulatory requirements for the remains the PSD permitting authority in San Diego hearings prior to submittal of this SIP prevention of significant deterioration County. revision and has satisfied these

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procedural requirements under CAA disapproval of Rule 20.1. We will accept found at http://www2.epa.gov/laws- section 110(l). comments from the public on this regulations/laws-and-executive-orders. With respect to the substantive proposal until June 15, 2020. If A. Executive Order 12866: Regulatory requirements of CAA section 110(l), we finalized, this action would incorporate Planning and Review and Executive have determined that our approval of the submitted rules into the SIP, the submitted rules would strengthen including those provisions identified as Order 13563: Improving Regulation and the applicable SIP. The addition of deficient. This approval is limited Regulatory Review public noticing requirement revisions, because EPA is simultaneously This action is not a significant updates to the interpollutant offset proposing a limited disapproval of the regulatory action and was therefore not procedures, and other changes to Rules rule under section 110(k)(3). submitted to the Office of Management 20.1–20.4 will not interfere with any If finalized as proposed, our limited and Budget (OMB) for review. applicable requirements of the CAA. disapproval action would trigger an Overall, the changes to Rules 20.1–20.4 obligation on the EPA to promulgate a B. Executive Order 13771: Reducing better conform to the federal Federal Implementation Plan (FIP) Regulations and Controlling Regulatory requirements. These changes will not unless the State corrects the Costs interfere with the area’s ability to attain deficiencies, and the EPA approves the This action is not expected to be an or maintain the NAAQS and will better related plan revisions, within two years Executive Order 13771 regulatory action align SDAPCD’s NSR program to the of the final action. Additionally, because this action is not significant federal requirements. Accordingly, we because the deficiency relates to NNSR under Executive Order 12866. are proposing to find that the revisions requirements under part D of title I of C. Paperwork Reduction Act (PRA) to Rules 20.1–20.4 are approvable under the Act, the offset sanction in CAA section 110(l). section 179(b)(2) would apply in San This action does not impose an Similarly, we find that the submitted Diego County 18 months after the information collection burden under the rules are approvable under section 193 effective date of a final limited PRA because this action does not of the Act because they do not modify disapproval, and the highway funding impose additional requirements beyond any control requirement in effect before sanctions in CAA section 179(b)(1) those imposed by state law. November 15, 1990 without ensuring would apply in the area six months after D. Regulatory Flexibility Act (RFA) equivalent or greater emission the offset sanction is imposed. Neither reductions. sanction will be imposed under the I certify that this action will not have The submitted rules are otherwise CAA if the State submits and we a significant economic impact on a consistent with criteria for the EPA’s approve, prior to the implementation of substantial number of small entities approval of regulations submitted for the sanctions, a SIP revision that under the RFA. This action will not inclusion in the SIP, including the corrects the deficiency that we identify impose any requirements on small requirement at CAA section 110(c)(2)(A) in our final action. The EPA intends to entities beyond those imposed by state that submitted regulations be clear and work with the SDAPCD to correct the law. legally enforceable. deficiency in a timely manner. For the reasons stated above and E. Unfunded Mandates Reform Act Note that the submitted rule has been (UMRA) explained further in our TSD, we find adopted by the SDAPCD, and the EPA’s that the submitted NSR rules generally final limited disapproval would not This action does not contain any satisfy the applicable CAA and prevent the local agency from enforcing unfunded mandate as described in regulatory requirements for minor NSR it. The limited disapproval would also UMRA, 2 U.S.C. 1531–1538, and does and NNSR permit programs under CAA not prevent any portion of the rule from not significantly or uniquely affect small section 110(a)(2)(C) and part D of title I being incorporated by reference into the governments. This action does not of the Act and other applicable federally enforceable SIP as discussed in impose additional requirements beyond requirements, subject to the one a July 9, 1992 EPA memo found at: those imposed by state law. exception noted above where the EPA https://www.epa.gov/sites/production/ Accordingly, no additional costs to has identified a deficiency. This files/2015–07/documents/procsip.pdf. state, local, or tribal governments, or to submittal also corrects the deficiencies the private sector, will result from this described in our 2018 conditional III. Incorporation by Reference action. approval of Rules 20.1–20.4 and Rule In this rule, the EPA is proposing to F. Executive Order 13132: Federalism 20.6. If we finalize this action as include in a final EPA rule regulatory proposed, our action will resolve the text that includes incorporation by This action does not have federalism conditional approval of these rules, and reference. In accordance with implications. It will not have substantial will be codified through revisions to 40 requirements of 1 CFR 51.5, the EPA is direct effects on the states, on the CFR 52.220 (Identification of plan—in proposing to incorporate by reference relationship between the national part) and 40 CFR 52.248 (Identification the SDAPCD rules described in Table 1 government and the states, or on the of plan—conditional approval). As of this preamble. The EPA has made, distribution of power and described below, a final limited and will continue to make, these responsibilities among the various disapproval would also trigger a materials available through levels of government. timeline for the State to submit a revised www.regulations.gov and at the EPA G. Executive Order 13175: Coordination SIP, or else face sanctions under the Region IX Office (please contact the With Indian Tribal Governments CAA. person identified in the FOR FURTHER INFORMATION CONTACT section of this This action does not have tribal C. Proposed Action and Public preamble for more information). implications, as specified in Executive Comment Order 13175, because the SIP is not As authorized in sections 110(k)(3) IV. Statutory and Executive Order approved to apply on any Indian and 301(a) of the Act, the EPA is Reviews reservation land or in any other area proposing full approval of Rules 20.2– Additional information about these where the EPA or an Indian tribe has 20.4, and a limited approval and limited statutes and Executive Orders can be demonstrated that a tribe has

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jurisdiction, and will not impose ENVIRONMENTAL PROTECTION submission (i.e., on the web, cloud, or substantial direct costs on tribal AGENCY other file sharing system). For governments or preempt tribal law. additional submission methods, the full Thus, Executive Order 13175 does not 40 CFR Parts 52 and 81 EPA public comment policy, apply to this action. [EPA–R04–OAR–2020–0003; FRL–10009– information about CBI or multimedia submissions, and general guidance on H. Executive Order 13045: Protection of 11–Region 4] making effective comments, please visit Children From Environmental Health Air Plan Approval and Designation of http://www2.epa.gov/dockets/ Risks and Safety Risks Areas; KY; Redesignation of the commenting-epa-dockets. The EPA interprets Executive Order Jefferson County 2010 1-Hour Sulfur FOR FURTHER INFORMATION CONTACT: 13045 as applying only to those Dioxide Nonattainment Area to Madolyn Sanchez, Air Regulatory regulatory actions that concern Attainment environmental health or safety risks that Management Section, Air Planning and the EPA has reason to believe may AGENCY: Environmental Protection Implementation Branch, Air and disproportionately affect children, per Agency (EPA). Radiation Division, U.S. Environmental the definition of ‘‘covered regulatory ACTION: Proposed rule. Protection Agency, Region 4, 61 Forsyth action’’ in section 2–202 of the Street SW, Atlanta, Georgia 30303–8960. Executive Order. This action is not SUMMARY: In a letter dated December 9, Ms. Sanchez may be reached by phone subject to Executive Order 13045 2019, the Commonwealth of Kentucky, at (404) 562–9644 or via electronic mail because it does not impose additional through the Kentucky Division of Air at [email protected]. requirements beyond those imposed by Quality (KDAQ) on behalf of the SUPPLEMENTARY INFORMATION: state law. Louisville Metro Air Pollution Control District (LMAPCD), submitted a request I. What are the actions EPA is I. Executive Order 13211: Actions That for the Environmental Protection proposing to take? Significantly Affect Energy Supply, Agency (EPA) to redesignate the Distribution, or Use Jefferson County sulfur dioxide (SO ) EPA is proposing to take the following 2 three separate but related actions: (1) To This action is not subject to Executive nonattainment area (hereinafter referred determine that the Jefferson County Order 13211, because it is not a to as the ‘‘Jefferson County Area’’ or Area has attained the 2010 1-hour SO significant regulatory action under ‘‘Area’’) to attainment for the 2010 1- 2 NAAQS; (2) to approve Kentucky’s plan Executive Order 12866. hour SO2 primary national ambient air quality standard (NAAQS) and to for maintaining the 2010 1-hour SO2 J. National Technology Transfer and approve an accompanying state NAAQS in the Area through 2032 and Advancement Act (NTTAA) implementation plan (SIP) revision incorporate it into the SIP; and (3) to Section 12(d) of the NTTAA directs containing a maintenance plan for the redesignate the Jefferson County Area to the EPA to use voluntary consensus Area. EPA is proposing to determine attainment for the 2010 1-hour SO2 standards in its regulatory activities that the Jefferson County Area has NAAQS. The Jefferson County Area is comprised of the portion of Jefferson unless to do so would be inconsistent attained the 2010 1-hour SO2 NAAQS; with applicable law or otherwise to approve the SIP revision containing County encompassed by the polygon impractical. The EPA believes that this the Commonwealth’s plan for with the vertices using Universal action is not subject to the requirements maintaining attainment of the 2010 1- Traverse Mercator (UTM) coordinates in UTM zone 16 with datum NAD83 as of section 12(d) of the NTTAA because hour SO2 standard and to incorporate application of those requirements would the maintenance plan into the SIP; and follows: (1) Ethan Allen Way extended be inconsistent with the CAA. to redesignate the Jefferson County Area to the Ohio River at UTM Easting (m) 595738, UTM Northing 4214086 and K. Executive Order 12898: Federal to attainment for the 2010 1-hour SO2 NAAQS. Dixie Highway (US60 and US31W) at Actions To Address Environmental UTM Easting (m) 597515, UTM Justice in Minority Populations and DATES: Comments must be received on Northing 4212946; (2) Along Dixie Low-Income Population or before June 15, 2020. Highway from UTM Easting (m) 597515, The EPA lacks the discretionary ADDRESSES: Submit your comments, UTM Northing 4212946 to UTM Easting authority to address environmental identified by Docket ID No. EPA–R04– (m) 595859, UTM Northing 4210678; (3) justice in this rulemaking. OAR–2020–0003 at http:// Near the adjacent property lines of www.regulations.gov. Follow the online Louisville Gas and Electric-Mill Creek List of Subjects in 40 CFR Part 52 instructions for submitting comments. Electric Generating Station and Kosmos Administrative practice and Once submitted, comments cannot be Cement where they join Dixie Highway procedure, Environmental protection, edited or removed from Regulations.gov. at UTM Easting (m) 595859, UTM Air pollution control, Carbon monoxide, EPA may publish any comment received Northing 4210678 and the Ohio River at Incorporation by reference, to its public docket. Do not submit UTM Easting (m) 595326, UTM Intergovernmental relations, Lead, electronically any information you Northing 4211014; (4) Along the Ohio Nitrogen dioxide, Ozone, Particulate consider to be Confidential Business River from UTM Easting (m) 595326, matter, Reporting and recordkeeping Information (CBI) or other information UTM Northing 4211014 to UTM Easting requirements, Sulfur dioxide, Volatile whose disclosure is restricted by statute. (m) 595738, UTM Northing 4214086. organic compounds. Multimedia submissions (audio, video, The Area consists primarily of the Authority: 42 U.S.C. 7401 et seq. etc.) must be accompanied by a written Louisville Gas & Electric (LG&E) Mill comment. The written comment is Creek Generating Station (Mill Creek) Dated: May 1, 2020. considered the official comment and and the area surrounding the monitor John Busterud, should include discussion of all points immediately north of that facility. Mill Regional Administrator, Region IX. you wish to make. EPA will generally Creek is the only point source of SO2 [FR Doc. 2020–09734 Filed 5–14–20; 8:45 am] not consider comments or comment emissions within the Jefferson County BILLING CODE 6560–50–P contents located outside of the primary Area.

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EPA is proposing to determine that assured, and certified ambient air compliance parameters (monitoring, the Jefferson County Area has attained quality data. See 78 FR 47191 (August recordkeeping, and reporting) at Mill the 2010 1-hour SO2 NAAQS. EPA is 5, 2013). Under the CAA, nonattainment Creek established in the facility’s title V also proposing to approve Kentucky’s areas must attain the NAAQS as permit 145–97– TV(R3) at Plant-wide SIP revision containing the maintenance expeditiously as practicable but not Specific condition S1-Standards, S2- plan for the Jefferson County Area in later than five years after the October 4, Monitoring and Record Keeping, and accordance with the requirements of 2013, effective date of the designation. S3-Reporting. EPA incorporated these section 175A of the Clean Air Act (CAA See CAA section 192(a). Therefore, the limits and parameters into the SIP as or Act). The maintenance plan Jefferson County Area’s applicable part of its final action on Kentucky’s submitted with Kentucky’s request for attainment date was no later than nonattainment SIP revision, thus redesignation is intended to help keep October 4, 2018. making them permanent and the Jefferson County Area in attainment EPA’s 2010 SO2 nonattainment enforceable controls. of the 2010 1-hour SO NAAQS through designation for the Area triggered an 2 III. What are the criteria for the year 2032. obligation for Kentucky to develop a EPA is also proposing to determine nonattainment SIP revision addressing redesignation? that the Jefferson County Area has met certain requirements under title I, part The CAA provides the requirements the requirements for redesignation D, subpart 1 (hereinafter ‘‘Subpart 1’’), for redesignating a nonattainment area under section 107(d)(3)(E) of the CAA. and to submit that SIP revision to EPA to attainment. Specifically, section Accordingly, EPA is proposing to in accordance with the deadlines in title 107(d)(3)(E) of the CAA allows for approve a request to change the legal I, part D, subpart 5 (hereinafter ‘‘Subpart redesignation provided that the designation of the portion of Jefferson 5’’). Subpart 1 contains the general following criteria are met: (1) The County that is designated nonattainment requirements for nonattainment areas Administrator determines that the area to attainment for the 2010 1-hour SO2 for criteria pollutants, including has attained the applicable NAAQS; (2) NAAQS. requirements to develop a SIP that the Administrator has fully approved provides for the implementation of the applicable implementation plan for II. Background reasonably available control measures the area under section 110(k); (3) the On June 2, 2010, EPA revised the (RACM), requires reasonable further Administrator determines that the primary SO2 NAAQS, establishing a progress (RFP), includes base-year and improvement in air quality is due to new 1-hour SO2 standard of 75 parts per attainment-year emissions inventories, a permanent and enforceable reductions billion (ppb). See 75 FR 35520 (June 22, SIP-approved nonattainment new in emissions resulting from 2010).1 Under EPA’s regulations at 40 source review (NNSR) permitting implementation of the applicable SIP CFR part 50, the 2010 1-hour SO2 program, enforceable emission and applicable federal air pollutant NAAQS is met at a monitoring site limitations and other such control control regulations, and other when the 3-year average of the annual measures, and provides for the permanent and enforceable reductions; 99th percentile of daily maximum 1- implementation of contingency (4) the Administrator has fully approved hour average concentrations is less than measures. This SIP revision was due a maintenance plan for the area as or equal to 75 ppb (based on the within 18 months following the October meeting the requirements of section rounding convention in 40 CFR part 50, 4, 2013, effective date of designation 175A; and (5) the state containing such appendix T). See 40 CFR 50.17. (i.e., April 4, 2015). See CAA section area has met all requirements applicable Ambient air quality monitoring data for 191(a). Kentucky submitted a to the area for purposes of redesignation the 3-year period must meet a data nonattainment SIP revision to EPA on under section 110 and part D of the completeness requirement. A year meets June 23, 2017.3 CAA. data completeness requirements when On June 28, 2019 (84 FR 30920), EPA On April 16, 1992 (57 FR 13498), EPA all four quarters are complete, and a approved Kentucky’s June 23, 2017, SO2 provided guidance on redesignations in quarter is complete when at least 75 nonattainment SIP revision. EPA the General Preamble for the percent of the sampling days for each determined that the nonattainment SIP Implementation of title I of the CAA quarter have complete data. A sampling revision met the applicable Amendments of 1990 and supplemented day has complete data if 75 percent of requirements of sections 110, 172, 191, this guidance on April 28, 1992 (57 FR the hourly concentration values, and 192 of the CAA and nonattainment 18070). EPA has provided further including state-flagged data affected by regulatory requirements at 40 CFR part guidance on processing redesignation exceptional events which have been 51 (including Kentucky’s attainment requests in the following documents: approved for exclusion by the modeling demonstration for the 1. ‘‘Procedures for Processing Administrator, are reported.2 Jefferson County Area). As discussed in Requests to Redesignate Areas to Upon promulgation of a new or Section V below, the attainment Attainment,’’ Memorandum from John revised NAAQS, the CAA requires EPA modeling demonstration inputs Calcagni, Director, Air Quality to designate as nonattainment any area included SO2 emission limits and Management Division, September 4, that does not meet (or that contributes 1992 (hereinafter referred to as the to ambient air quality in a nearby area 3 EPA published a notice on March 18, 2016 (81 ‘‘Calcagni Memorandum’’); that does not meet) the NAAQS. EPA FR 14736), announcing its finding that Kentucky 2. ‘‘State Implementation Plan (SIP) designated the Jefferson County Area as (and other pertinent states) had failed to submit the Actions Submitted in Response to Clean required SO2 nonattainment plan by the submittal nonattainment for the 2010 1-hour SO2 deadline. The finding initiated a deadline under Air Act (CAA) Deadlines,’’ NAAQS, effective on October 4, 2013, CAA section 179(a) for the potential imposition of Memorandum from John Calcagni, based on 2009–2011 complete, quality NNSR offset and highway funding sanctions. Director, Air Quality Management However, pursuant to Kentucky’s submittal of June 23, 2017 (received by EPA on July 6, 2017), and Division, October 28, 1992; 1 On February 25, 2019, EPA retained the existing EPA’s subsequent letter dated October 10, 2017, to 3. ‘‘Part D New Source Review (Part 2010 primary NAAQS for SO2 of 75 parts per billion Kentucky finding the submittal to be complete and D NSR) Requirements for Areas (ppb) based on the 3-year average of the 99th noting the termination of these sanctions deadlines, Requesting Redesignation to percentile of the annual distribution of 1-hour daily the sanctions under section 179(a) were not and maximum concentrations. See 84 FR 9866. will not be imposed as a result of Kentucky having Attainment,’’ Memorandum from Mary 2 See 40 CFR part 50, appendix T, section 3(b). missed the April 4, 2015, submittal deadline. D. Nichols, Assistant Administrator for

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Air and Radiation, October 14, 1994; Criterion (1)—The Administrator demonstrate that the Area is attaining and Uetermines Uhat the Urea Has Attained the standard. EPA’s proposed 4. ‘‘Guidance for 1-Hour SO the NAAQS determination that the Jefferson County 2 Area is attaining the SO NAAQS is also Nonattainment Area SIP Submissions,’’ For redesignating a nonattainment 2 based on the modeled attainment Memorandum from Stephen D. Page, area to attainment, the CAA requires demonstration that includes permanent April 23, 2014 (hereinafter referred to as EPA to determine that the area has and enforceable SO emissions limits at attained the applicable NAAQS (CAA 2 the ‘‘SO2 Nonattainment Area Mill Creek showing attainment of the Guidance’’). section 107(d)(3)(E)(i)). As discussed in 2010 1-hour SO2 NAAQS. The modeled section VIII.A of the SO2 Nonattainment EPA’s SO2 Nonattainment Area attainment demonstration accounts for Area Guidance, there are generally two Guidance discusses the CAA more efficient wet flue gas components needed to support an requirements that air agencies need to desulfurization (FGD) control attainment determination for SO2, equipment at Mill Creek that became address when implementing the 2010 which should be considered SO2 NAAQS in areas designated as operational in stages from 2014 to 2016, interdependently. The first component as well as revised SO emission limits.5 nonattainment for the standard. The relies on air quality monitoring data. For 2 guidance includes recommendations for EPA approved the attainment SO2, any available monitoring data air agencies to consider as they develop demonstration for the Jefferson County would need to indicate that all monitors Area on June 28, 2019, and incorporated SIPs to satisfy the requirements of in the affected area are meeting the sections 110, 172, 175A, 191, and 192 of the new SO2 emission limits including standard as stated in 40 CFR 50.17 using monitoring, recordkeeping, and the CAA to show future attainment and data analysis procedures specified in 40 reporting parameters into the SIP, maintenance of the 2010 SO NAAQS. 2 CFR part 50, Appendix T. The second making them permanent and Additionally, the SO2 nonattainment component relies on air quality enforceable. See 84 FR 30920. guidance provides recommendations for modeling. If there are no air quality Monitoring data from the Watson Lane air agencies to consider as they develop monitors located in the affected area, or monitor and Kentucky’s approved redesignation requests and maintenance there are air quality monitors located in modeled attainment demonstration are plans to satisfy the requirements of the area, but analyses show that none of discussed below. sections 107(d)(3)(E) and 175A. the monitors are located in the area of maximum ambient air SO2 Monitoring Data IV. Why is EPA proposing these 4 concentration, then air quality For SO2, a monitoring site may be actions? dispersion modeling will generally be considered to be attaining the 2010 1- needed to estimate SO concentrations Through a letter dated December 9, 2 hour SO2 NAAQS if it meets the in the area. Such dispersion modeling 2019, Kentucky submitted a request for NAAQS as determined in accordance should be conducted to estimate SO EPA to redesignate the Jefferson County 2 with 40 CFR 50.17 and Appendix T of concentrations throughout the Area to attainment for the 2010 1-hour part 50, based on three complete, nonattainment area using actual consecutive calendar years of quality- SO NAAQS and submitted an 2 emissions and meteorological assured air quality monitoring data. associated SIP revision containing a information for the most recent three Specifically, to attain the NAAQS at maintenance plan. EPA’s evaluation calendar years. However, EPA may also each monitoring site, the 3-year average indicates that the Jefferson County Area make determinations of attainment of the annual 99th percentile (fourth meets the requirements for based on the modeling from the highest value) of daily maximum 1-hour redesignation as set forth in section attainment demonstration for the average concentrations measured at 107(d)(3)(E), including the maintenance applicable SIP for the affected area, each monitor within an area must be plan requirements under section 175A eliminating the need for separate less than or equal to 75 ppb. The data of the CAA. As a result of this actuals-based modeling to support the must be collected and quality-assured in evaluation, EPA is proposing to determination that an area is currently accordance with 40 CFR part 58 and determine that the Area has attained the attaining. If the air agency has recorded in the EPA Air Quality System 2010 1-hour SO2 NAAQS based upon air previously submitted a modeled (AQS). The monitors should have monitoring data for 2016–2018 and air attainment demonstration using remained at the same location for the quality dispersion modeling analyses. allowable emissions, no further duration of the monitoring period EPA is also proposing to approve modeling is needed as long as the required for demonstrating attainment. Kentucky’s maintenance plan for source characteristics are still Kentucky currently operates one maintaining the 2010 1-hour SO2 reasonably represented and so long as ambient SO2 monitor in the Area, the NAAQS in the Area and incorporate it emissions are at or below allowable Watson Lane SO2 monitor (AQS ID: 21– into the SIP and to redesignate the levels. In a case such as this, where both 111–0051). This monitor is located less Jefferson County Area to attainment for monitoring and modeling evidence are than 2 kilometers (km) east of Mill available, EPA will consider both types Creek. The original nonattainment the 2010 1-hour SO2 NAAQS. of evidence. designation was based on the 2009– V. What is EPA’s analysis of the Kentucky’s pre- and post-modification 2011 design value of 112 ppb at this redesignation request and SIP revision? attainment demonstration modeling monitor. As shown in Table 1, the indicates that the Watson Lane design values at this monitor have The five redesignation criteria Elementary School (Watson Lane) decreased since the 2014–2016 design provided under CAA section monitor is not sited in the area of value, and the quality-assured, 107(d)(3)(E) are discussed in greater maximum concentration for Mill Creek, complete, and certified 2016–2018 3- detail for the Jefferson County Area in and therefore, the clean monitoring data year design value is 19 ppb, well below the following paragraphs. at the monitor does not on its own the 2010 1-hour SO2 standard of 75 ppb.

4 5 See section VIII.A of the SO2 Nonattainment See the ‘‘Criterion (3)’’ section of this notice for Area Guidance. additional information.

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There have been no 1-hour values for which the design value for the Area recorded above the standard since fell below the standard was 2015–2017. March 2015. The first three-year period

TABLE 1—JEFFERSON COUNTY AREA SO2 MONITORED DESIGN VALUES

Monitoring station 2009–2011 2010–2012 2011–2013 2012–2014 2013–2015 2014–2016 2015–2017 2016–2018 (AQS Site ID) Design Design Design Design Design Design Design Design value value value value value value value value 6

Watson Lane Elementary School (21–111–0051) ...... 112 ppb 123ppb ND * ND * ND * 76 ppb 31 ppb 19 ppb * The Watson Lane monitor did not collect a valid design value during 2011–2013, 2012–2014, and 2013–2015 due to incomplete data in 2013.

Preliminary monitoring data from the KDAQ’s attainment demonstration still Ohio station located about 240 km to the Watson Lane monitor for 2019 indicates reflect current conditions. On June 28, northeast. The surface characteristics that the 2017–2019 preliminary design 2019 (84 FR 30920), EPA approved this surrounding the meteorological surface value is 15 ppb.7 EPA is proposing to attainment demonstration along with station were processed using determine that the Jefferson County LMAPCD’s control strategies at the AERSURFACE version 13016 following Area has attained the 2010 1-hour SO2 facility. Details regarding the control EPA-recommended procedures and NAAQS based on the modeling analysis strategies and emissions reductions are were determined to be representative of discussed below, as well as the quality- provided in the Criterion (3) Section of the facility by the Commonwealth. assured, complete, and certified ambient this notice. Details regarding the The AERMOD pre-processor air monitoring data for the 2016–2018 modeling analysis are discussed in the AERMAP (version 11103) was used to period that does not indicate a NAAQS following paragraphs. generate terrain inputs for the receptors, violation. If, before EPA takes final Kentucky’s modeling analysis was based on a digital elevation mapping action, monitoring data or other developed in accordance with EPA’s database from the National Elevation evidence causes EPA to conclude that Guideline on Air Quality Models Dataset developed by the U.S. 8 the Area is not continuing to meet the (Modeling Guideline) and the SO2 Geological Survey. Model receptors standard, EPA will not go forward with Nonattainment Area Guidance, and was were located throughout the Area using the redesignation. As discussed in more prepared using EPA’s preferred a grid with 100-meter spacing between detail below, Kentucky has committed dispersion modeling system, the receptors. to continue monitoring ambient SO2 American Meteorological Society/ Mill Creek is the only SO2 emitting concentrations in this Area in Environmental Protection Agency major point source in the Area and the accordance with 40 CFR part 58. Any Regulatory Model (AERMOD) consisting only emission source that was explicitly future changes to the state or local air 9 of the AERMOD (version 15181) model modeled in the attainment modeling monitoring station (SLAMS) network in and multiple data input preprocessors analysis for the Jefferson County Area. the Area will be submitted to EPA for as described below. Kentucky used All minor area sources and other major approval in Kentucky’s annual ambient regulatory default options and the rural point sources (located outside the air monitoring network plan, as required land use designation in the AERMOD nonattainment area boundary) were by 40 CFR 58.10. modeling. Appendix A in Kentucky’s accounted for with the background Kentucky’s EPA-Approved Modeling December 9, 2019, submittal provides a concentration discussed below. Mill Analysis summary of the modeling procedures Creek operates four coal-fired boiler and options, including details As discussed in Section VIII.A. of the units (U1 thru U4) that emit from three explaining how they applied the Auer stacks. Unit 1 and Unit 2 have a joint SO2 Nonattainment Area Guidance, air technique to determine that the rural quality dispersion modeling will stack (S33) while Unit 3 and Unit 4 have dispersion coefficients were appropriate separate stacks (S4 and S34, generally be needed to demonstrate for the modeling. attainment in addition to attaining air respectively). The Commonwealth The pre-processors AERMET (version evaluated the emissions from Mill Creek quality monitoring data (in accordance 15181) and AERMINUTE (version and derived a set of three SO critical with 40 CFR 50.17 and Appendix T of 15272) were used to process five years 2 emission values (CEVs), one for each part 50) if the existing monitor is not (i.e., 2011–2015) of 1-minute stack, from AERMOD modeling located in the area of maximum ambient meteorological data from the Louisville simulations to show compliance with air SO2 concentration. The SO2 Muhammad Ali International Airport the 2010 SO NAAQS. The AERMOD attainment demonstration submitted by station in Louisville, Kentucky, located 2 modeling analysis resulted in the Kentucky on June 23, 2017, provided an about 20 km to the northeast of Mill following CEVs: Stack S33, which air quality dispersion modeling analysis Creek. Twice daily upper-air serves Units 1 and 2, was modeled at demonstrating that the control strategies meteorological information came from 225.4 grams/second (g/s) equivalent to chosen by the Commonwealth and the Wilmington Air Park, Wilmington, LMAPCD to reduce SO2 emissions at 1,789 lb/hr; stack S4, which serves Unit 3, was modeled at 152.6 g/s equivalent Mill Creek provide for attainment of the 8 See 40 CFR part 51 Appendix W (EPA’s standard. The source characteristics in Guideline on Air Quality Models) (January 17, to 1,211 lb/hr; and stack S34, which 2017) located at https://www3.epa.gov/ttn/scram/ serves Unit 4, was modeled at 183.6 g/ 6 The 2018 data is available at https:// appendix_w/2016/AppendixW_2017.pdf. s equivalent to 1,457 lb/hr. In each case, www.epa.gov/outdoor-air-quality-data/monitor- 9 Version 15181 of the AERMOD Modeling the modeled emission rate corresponds values-report. System was the current EPA-recommended to 0.29 pounds per million British 7 Preliminary 2019 data is available at https:// regulatory version at the time the modeling was www.epa.gov/outdoor-air-quality-data/monitor- performed in 2016–2017, and therefore, was thermal units (lb/MMBtu) times the values-report. appropriate for the modeling analysis. maximum heat input capacity (MMBtu/

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hr) of the unit(s) associated with each and became subject to the new 30-day Criterion (2)—The Administrator Has stack. This form of an emission limit, in SO2 emission limits on April 5, 2017, Fully Approved the Applicable lb/MMBtu, is a frequent form of which reduced SO2 emissions by Implementation Plan for the Area Under emission limit associated with electric approximately 89 percent from 2014 Section 110(k); and Criterion (5)— generating units. The Commonwealth emission levels.11 Furthermore, the Kentucky Has Met all Applicable determined from these AERMOD Watson Lane monitoring data Requirements Under Section 110 and modeling simulations that an hourly corroborate the significant SO2 Part D of Title I of the CAA emission limit of 0.29 lb/MMBtu would reductions from Mill Creek. EPA suffice to ensure modeled attainment of previously evaluated the modeling To redesignate a nonattainment area to attainment, the CAA requires EPA to the SO2 NAAQS. However, the procedures, inputs, and results and Commonwealth opted to apply a 30-day finalized a determination that the determine that the state has met all applicable requirements under section average limit, following EPA’s SO2 Commonwealth’s modeling analysis Nonattainment Area Guidance for demonstrates that the 30-day emissions 110 and part D of title I of the CAA setting longer term average limits. The limits on Mill Creek assure that there (CAA section 107(d)(3)(E)(v)) and that Commonwealth determined that a 30- will be no violations of the NAAQS the state has a fully approved SIP under day average limit of 0.20 lb/MMBtu within the Area. section 110(k) for the area (CAA section could be considered comparably All emissions limits and related 107(d)(3)(E)(ii)). EPA proposes to find stringent to a 1-hour limit of 0.29 lb/ compliance parameters have been that Kentucky has met all applicable SIP MMBtu. A comprehensive discussion of incorporated into the Jefferson County requirements for the Jefferson County the procedures used by the portion of the Kentucky SIP, making Area under section 110 of the CAA Commonwealth to determine the longer- these changes permanent and federally (general SIP requirements) for purposes term average limit is contained in EPA’s enforceable. More details on the pre- of redesignation. Additionally, EPA rulemaking notices associated with the construction and post-construction proposes to find that the Kentucky SIP approval of the nonattainment SIP operations at Mill Creek are included in satisfies the criterion that it meets revision for the Jefferson County Area. Kentucky’s June 23, 2017, applicable SIP requirements for See 83 FR 56002 (November 9, 2018) nonattainment SIP submission and in purposes of redesignation under part D and 84 FR 30920 (June 28, 2019). EPA’s rulemaking on that submittal.12 of title I of the CAA in accordance with Kentucky selected background SO2 On June 28, 2019, EPA approved the section 107(d)(3)(E)(v). Further, EPA concentrations that vary by season and modeled attainment demonstration proposes to determine that the SIP is 10 hour of day using local SO2 described above and concluded that it is fully approved with respect to all monitoring data from the Green Valley consistent with CAA requirements, requirements applicable for purposes of Road monitor (AQS ID: 18–043–1004) EPA’s Modeling Guideline, and EPA’s redesignation in accordance with located in New Albany, Indiana, section 107(d)(3)(E)(ii). In making these guidance for SO2 attainment approximately 29 km north of the Mill demonstration modeling. The modeled proposed determinations, EPA Creek facility, for the period 2013–2015. controls have been fully implemented as ascertained which requirements are The season-by-hour background values of June 8, 2016, when the last of the new applicable to the Area and, if applicable, ranged from 2.13 ppb to 20.67 ppb. FGD SO controls began operation. Mill that they are fully approved under These background concentrations from 2 section 110(k). SIPs must be fully Creek became subject to the revised SO2 the nearby ambient air monitor are used emission limits in the Title V permit on approved only with respect to to account for SO impacts from all 2 April 5, 2017. Emissions and air quality requirements that were due prior to sources that are not specifically are at or below the levels modeled in submittal of the complete redesignation included in the AERMOD modeling Kentucky’s attainment demonstration.13 request. analysis. A comprehensive discussion of Therefore, EPA proposes to find that air the background concentrations and how A. The Jefferson County Area Has Met quality modeling supports the they are used to account for SO all Applicable Requirements Under 2 conclusion that the Area has attained emissions from all the sources not Section 110 and Part D of the CAA the 2010 1-hour SO NAAQS. explicitly modeled is contained in 2 1. General SIP Requirements EPA’s notice of proposed rulemaking for 11 Mill Creek’s annual SO2 emissions have General SIP elements and the nonattainment SIP revision. See 83 dropped from 28,149 tons in 2014 to 3,752 tons in FR 56002 (November 9, 2018). 2018. Additionally, Mill Creek emitted a total of requirements are delineated in section The AERMOD modeling resulted in a 2,923 tons in 2019. See https://ampd.epa.gov/ 110(a)(2) of title I, part A of the CAA. maximum modeled design value of ampd/. These requirements include, but are not 190.1 micrograms per cubic meter or 12 See 84 FR 30920 (June 28, 2019) (final rule), 83 limited to, the following: Submittal of a FR 56002 (November 9, 2018) (proposed rule). SIP that has been adopted by the state 72.6 ppb, including the background Kentucky’s 2017 SIP submittal is included in the concentrations, which is below the 1- Docket for this proposed rulemaking. after reasonable public notice and hour SO2 NAAQS of 75 ppb. The 13 A comparison of the Mill Creek unit-level hearing; provisions for establishment modeling used hourly SO2 emissions for potential to emit to the 2018 actual emissions and operation of appropriate procedures each Mill Creek stack equivalent to the indicate that SO2 emissions at Mill Creek are below needed to monitor ambient air quality; the levels modeled in the 2017 attainment hourly SO2 emission rate of 0.29 lb/ demonstration modeling. See Kentucky’s December implementation of a source permit MMBtu, which was used to derive the 9, 2019, redesignation and maintenance submission program; provisions for the 30-day average emission limit for the and https://ampd.epa.gov/ampd/. Furthermore, the implementation of part C requirements four coal-fired boilers at Mill Creek. Mill monitoring data trends corroborate the existence of (Prevention of Significant Deterioration the substantial air quality benefits from the SO2 Creek completed the phased installation reductions at Mill Creek. The Watson Lane monitor (PSD)) and provisions for the of improved FGD SO2 controls in 2016 has recorded decreasing SO2 concentrations from an implementation of part D requirements annual 99th percentile value of 148.6 ppb in 2014, (NNSR permit programs); provisions for 10 Use of 99th percentile background 54.2 ppb in 2015, 26.1 ppb in 2016, 13.7 ppb in air pollution modeling; and provisions concentrations that vary by season and hour of the 2017, and 16.4 ppb in 2018. The quality-assured, for public and local agency participation day is an acceptable approach that is described in complete, and certified 2016–2018 3-year design Appendix A, Section 8, of EPA’s SO2 value for the Watson Lane monitor is 19 ppb, which in planning and emission control rule Nonattainment Area Guidance. is below the 1-hour SO2 standard. development.

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Section 110(a)(2)(D) requires that SIPs 2. Title I, Part D, Applicable SIP Section 172(c)(4) requires the contain certain measures to prevent Requirements identification and quantification of sources in a state from significantly Subpart 1 of part D, comprised of allowable emissions for major new and contributing to air quality problems in CAA sections 171–179B, sets forth the modified stationary sources to be another state. To implement this basic nonattainment requirements allowed in an area, and section 172(c)(5) provision, EPA has required certain applicable to all nonattainment areas. requires source permits for the states to establish programs to address All areas that were designated construction and operation of new and the interstate transport of air pollutants. modified major stationary sources nonattainment for the SO2 NAAQS were The section 110(a)(2)(D) requirements designated under Subpart 1 of the CAA anywhere in the nonattainment area. EPA has a longstanding interpretation for a state are not linked with a in accordance with the deadlines in that because NNSR is replaced by PSD particular nonattainment area’s Subpart 5. For purposes of evaluating upon redesignation, nonattainment designation and classification in that this redesignation request, the areas seeking redesignation to state. EPA believes that the applicable Subpart 1 SIP requirements attainment need not have a fully requirements linked with a particular are contained in section 172(c)(1)–(9), approved part D NNSR program in order nonattainment area’s designation and section 176, and sections 191 and 192. to be redesignated. See memorandum classifications are the relevant measures A thorough discussion of the from Mary Nichols, Assistant to evaluate in reviewing a redesignation requirements contained in sections Administrator for Air and Radiation, request. The transport SIP submittal 172(c) can be found in the General requirements, where applicable, dated October 14, 1994, entitled ‘‘Part D Preamble for Implementation of Title I. New Source Review Requirements for continue to apply to a state regardless of See 57 FR 13498 (April 16, 1992). the designation of any one particular Areas Requesting Redesignation to area in the state. Thus, EPA does not a. Subpart 1 Section 172 Requirements Attainment.’’ However, LMAPCD currently has a fully-approved part D believe that the CAA’s interstate Section 172 requires states with NNSR program in place in Regulation transport requirements should be nonattainment areas to submit plans 2.04 (Construction or Modification of construed to be applicable requirements providing for timely attainment and Major Sources In or Impacting Upon for purposes of redesignation. meeting a variety of other requirements. Non-Attainment Areas (Emission Offset In addition, EPA interprets the other As discussed in section V.A, above, Requirements)) of the Louisville Air section 110(a)(2) elements that are EPA’s longstanding interpretation of the Pollution Control District Regulations. neither connected with nonattainment attainment-related nonattainment LMAPCD’s PSD program will become plan submissions nor linked with an planning requirements of section 172 is effective in the Area upon redesignation area’s attainment status not to be that once an area is attaining the to attainment. ‘‘applicable’’ requirements for purposes NAAQS, those requirements are not Section 172(c)(7) requires the SIP to of redesignation. The area will still be ‘‘applicable’’ for purposes of CAA meet the applicable provisions of subject to these requirements after the section 107(d)(3)(E)(ii) and therefore section 110(a)(2). As noted above, EPA area is redesignated. The section need not be approved into the SIP believes that Kentucky’s SIP meets the 110(a)(2) and part D requirements which before EPA can redesignate the area. In requirements of section 110(a)(2) are linked with a particular area’s the 1992 General Preamble for applicable for purposes of designation and classification are the Implementation of Title I, EPA set forth redesignation. relevant measures to evaluate in its interpretation of applicable Finally, section 172(c)(8) allows a reviewing a redesignation request. This requirements for purposes of evaluating state to use equivalent modeling, approach is consistent with EPA’s redesignation requests when an area is emission inventory, and planning existing policy on applicability (i.e., for attaining a standard. See 57 FR 13498, procedures if such use is requested by redesignations) of conformity and 13564 (April 16, 1992). EPA noted that the state and approved by EPA. oxygenated fuels requirements, as well the requirements for RFP and other Kentucky has not requested the use of as with section 184 ozone transport measures designed to provide for equivalent techniques under section requirements. See Reading, attainment do not apply in evaluating 172(c)(8). Pennsylvania, proposed and final redesignation requests because those rulemakings (61 FR 53174–53176, nonattainment planning requirements b. Subpart 1 Section 176—Conformity October 10, 1996), (62 FR 24826, May 7, ‘‘have no meaning’’ for an area that has Requirements 2008); Cleveland-Akron-Loraine, Ohio, already attained the standard. Id. This Section 176(c) of the CAA requires final rulemaking (61 FR 20458, May 7, interpretation was also set forth in the states to establish criteria and 1996); and Tampa, Kentucky, final Calcagni Memorandum. procedures to ensure that federally rulemaking (60 FR 62748, December 7, As discussed above, EPA previously supported or funded projects conform to 1995). See also the discussion on this approved Kentucky’s nonattainment SIP the air quality planning goals in the issue in the Cincinnati, Ohio, for the Jefferson County Area. See 84 FR applicable SIP. The requirement to redesignation (65 FR 37890, June 19, 30920 (June 28, 2019). The determine conformity applies to 2000), and in the Pittsburgh, nonattainment SIP for the Area satisfied transportation plans, programs, and Pennsylvania, redesignation (66 FR the section 172(c)(1) requirements for projects that are developed, funded, or 50399, October 19, 2001). Nonetheless, RACT/RACM; 172(c)(2) requirements approved under title 23 of the United EPA has approved Kentucky’s SIP related to RFP; 172(c)(3) requirements States Code (U.S.C.) and the Federal revisions related to the section 110 for a comprehensive and accurate Transit Act (transportation conformity) requirements for the 2010 SO2 NAAQS, emissions inventory; 172(c)(6) as well as to all other federally with the exception of the interstate requirements for permanent and supported or funded projects (general transport elements at section enforceable control measures necessary conformity). Because EPA does not 110(a)(2)(D)(i)(I). See 81 FR 87817 to provide for attainment of the NAAQS consider SO2 a transportation related (December 6, 2016), 84 FR 11652 (March by the attainment date; and section pollutant, only the requirements related 28, 2019), and 84 FR 13800 (April 8, 172(c)(9) requirements for contingency to general conformity apply to the 2019). measures. Jefferson County Area. The

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Commonwealth of Kentucky adopted on this determination and successfully resulting from the emission limits general conformity criteria and reduced ambient concentrations below incorporated into the SIP. procedures as a revision to the Kentucky the 1-hour SO NAAQS by only 2 Criterion (4)—The Jefferson County Area SIP. EPA approved Kentucky’s general requiring emissions reductions at Mill Has a Fully Approved Maintenance conformity SIP on July 27, 1998 (63 FR Creek. Plan Pursuant to Section 175A of the 40044). Thus, the requirements of CAA Mill Creek consists of four coal-fired CAA section 176 have been satisfied. boilers (U1–U4). Kentucky’s control strategy for the Jefferson County Area For redesignating a nonattainment B. The Jefferson County Area Has a consists of replacing FGD control area to attainment, the CAA requires Fully Approved Applicable SIP Under equipment with more efficient FGD EPA to determine that the area has a Section 110(k) of the CAA controls at Mill Creek, addressing SO2 fully approved maintenance plan EPA has fully approved the applicable emissions for all four units (U1, U2, U3 pursuant to section 175A of the CAA. Kentucky SIP for the Jefferson County and U4). Unit 1 and Unit 2 share a See CAA section 107(d)(3)(E)(iv). In Area under section 110(k) of the CAA common stack (S33) while Unit 3 and conjunction with its request to for purposes of redesignation. EPA may Unit 4 have separate stacks (S4 and S34, redesignate the Jefferson County Area to rely on prior SIP approvals in approving respectively). Unit 4’s new FGD went attainment for the 2010 1-hour SO2 a redesignation request (see Calcagni into service on December 9, 2014; the NAAQS, Kentucky submitted a SIP Memorandum at p. 3, Southwestern new combined FGD for Units 1 and 2 revision to provide for the maintenance Pennsylvania Growth Alliance v. went into service on May 27, 2015; and of the 2010 1-hour SO2 NAAQS for at Browner, 144 F.3D 984, 989–90 (6th Cir. Unit 3’s new FGD went into service on least 10 years after the effective date of 1998); Wall, 265 F.3d 426) plus any June 8, 2016. redesignation to attainment. EPA is additional measures it may approve in Kentucky established an emission proposing to determine that this conjunction with a redesignation action. limit of 0.20 lb/MMBtu for each coal- maintenance plan meets the See 68 FR 25426 (May 12, 2003) and fired unit at Mill Creek on a 30-day requirements for approval under section citations therein. average basis in accordance with the 175A of the CAA. SO Nonattainment Area Guidance for Criterion (3)—The Air Quality 2 a. What is required in a maintenance longer term averaging time for the Improvement in the Jefferson County plan? purpose of demonstrating attainment for Area is due to Permanent and the 1-hour SO standard.15 These Section 175A of the CAA sets forth Enforceable Reductions in Emissions 2 emission limits apply independently to the elements of a maintenance plan for Resulting From Implementation of the each of the four coal-fired units (U1 thru areas seeking redesignation from SIP and Applicable Federal Air U4), which emit SO from three separate nonattainment to attainment. Under Pollution Control Regulations and Other 2 stacks (S33, S4, and S34). These SO section 175A, the plan must Permanent and Enforceable Reductions 2 limits were established in a revised title demonstrate continued attainment of To redesignate a nonattainment area V operating permit 145–97–TV(R3) for the applicable NAAQS for at least 10 to attainment, the CAA requires EPA to Mill Creek and became effective on years after the Administrator approves a determine that the air quality April 5, 2017. Mill Creek demonstrates redesignation to attainment. Eight years improvement in the area is due to compliance with the 30-day emission after the redesignation, the state must permanent and enforceable reductions limits through a continuous emission submit a revised maintenance plan in emissions resulting from monitoring system on each stack as well demonstrating that attainment will implementation of the SIP, applicable as the monitoring of the heat input continue to be maintained for the 10 Federal air pollution control firing rate of each emission unit. The 30- years following the initial 10-year regulations, and other permanent and day SO2 emission limit was established period. To address the possibility of enforceable reductions (CAA section to demonstrate modeled attainment of future NAAQS violations, the 107(d)(3)(E)(iii)). EPA proposes to the 2010 1-hour SO2 standard for the maintenance plan must contain determine that Kentucky has Jefferson County nonattainment area. contingency measures as EPA deems demonstrated that the observed air Kentucky requested that EPA necessary to assure prompt correction of quality improvement in the Jefferson incorporate into the Jefferson County any future 2010 1-hour SO2 violations. County Area is due to permanent and portion of the Commonwealth’s SIP the The Calcagni Memorandum provides enforceable reductions in SO2 emissions 30-day SO2 emission limits and further guidance on the content of a resulting from implementation of the operating and compliance parameters maintenance plan, explaining that a SIP, namely SO2 control measures at (monitoring, recordkeeping, and maintenance plan should address five Mill Creek since the nonattainment reporting) established at Plant-wide requirements: The attainment emissions designation. Specific condition S1-Standards, S2- inventory; maintenance demonstration; When EPA designated the Jefferson Monitoring and Record Keeping and S3- monitoring; verification of continued County Area as a nonattainment area for Reporting in title V permit 145–97– attainment; and a contingency plan. As the 2010 1-hour SO2 NAAQS, EPA TV(R3). On June 28, 2019, EPA took is discussed more fully below, EPA is determined that operations at Mill Creek final action to incorporate the SO2 proposing to determine that Kentucky’s were the primary cause of the 2010 1- emission limits and operating and maintenance plan includes all the hour SO2 NAAQS violations in the compliance parameters into the SIP necessary components and is thus Area. See 78 FR 47191.14 The June 23, with the approval of Kentucky’s June proposing to approve it as a revision to 2017, Jefferson County Area 23, 2017, SO2 nonattainment SIP the Kentucky SIP. nonattainment SIP revision was based revision. See 84 FR 30920. The air b. Attainment Emissions Inventory quality improvement in the Jefferson 14 See Final Technical Support Document, July County Area is due to permanent and An attainment inventory identifies a 2013, Kentucky First Round of Nonattainment Area enforceable reductions in SO2 emissions level of emissions in the Area that is Designations for the 2010 SO2 Primary NAAQS, Prepared by EPA Region 4. This document is sufficient to attain the NAAQS. As available at Docket ID: EPA–HQ–OAR–2012–0233– 15 See section IV.B.4.ii of the proposed attainment discussed above, the last monitored 0308. demonstration (83 FR 56002, November 9, 2018). exceedance of the NAAQS occurred in

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2015. Phased installation of the new This design value reflects the permanent National Emissions Inventory (NEI) data FGDs at Mill Creek began in 2013 and and enforceable Mill Creek SO2 for Jefferson County because the was completed in 2016, making 2017 emission limits used in the attainment Commonwealth is only required to the first full year with all of the new modeling. develop these inventories on a triennial controls in operation. The design values Actual emissions from Mill Creek are period in accordance with the NEI and at the Watson Lane monitor have used for point source emissions for the subpart A to 40 CFR part 51 and the decreased since the 2014–2016 design attainment inventory, as it is the only final 2017 NEI is not yet available. The value with a quality-assured, complete, point source in the Area, and the only 2018 estimated emissions were then and certified 2016–2018 3-year design source specifically modeled in the apportioned to the Area based on the value of 19 ppb. In its maintenance attainment demonstration approved in Area’s fraction of land area within the plan, LMAPCD chose 2018 as the 2019. SO emissions data from Mill 2 county. The complete attainment attainment inventory year which is one Creek is presented in Table 2. Kentucky emissions inventory for the Area is of the three years included in the interpolated emissions for all other current attaining 3-year design value. sectors for 2018 from the 2011 and 2014 presented in Table 3.

TABLE 2—2018 SO2 EMISSIONS INVENTORY FOR LG&E MILL CREEK

SO2 emissions Unit Source (tpy)

MC_U01 ...... CEMS * ...... 681.3 MC_U02 ...... CEMS ...... 571.1 MC_U03 ...... CEMS ...... 721.1 MC_U04 ...... CEMS ...... 1778.6 MC_Other ...... Calculated ...... 0.06

Total ...... 3,752.16 * Continuous Emissions Monitoring System.

TABLE 3—2018 ATTAINMENT EMISSIONS INVENTORY FOR THE JEFFERSON COUNTY AREA

Source type Point Area Non-road On-road Total

2018 SO2 Emissions (tpy) ...... 3,752.16 0.46 0.01 0.28 3,752.91

For additional information regarding required in CAA section 175A, emissions are from U.S. EPA’s 2011 v6.3 the development of the attainment year Kentucky prepared attainment year modeling platform and further inventory, please see Kentucky’s June emissions (2018) and projected apportioned for the Area. The emissions 23, 2017, nonattainment SIP submission emissions inventories for years 2023, inventories were developed consistent and EPA’s rulemakings on that 2028, and 2032. The emissions with EPA guidance and are summarized submittal.16 inventories are composed of the in Table 4. Kentucky compared following general source categories: projected emissions for the final year of c. Maintenance Demonstration Point, area, non-road mobile, and on- the maintenance plan (2032) to the Maintenance of the SO2 standard is road mobile. Projected point source attainment emissions inventory year demonstrated either by showing that emissions were based on Mill Creek’s (2018) and compared interim years future emissions will not exceed the 2018 attainment emissions of 3752.16 (2023 & 2028) to the attainment level of the attainment emissions tons. Projected point source emissions emissions inventory year to demonstrate inventory year or by modeling to show were held constant because Kentucky continued maintenance of the 2010 1- that the future mix of sources and does not anticipate any development hour SO2 standard. For additional emission rates will not cause a violation within the Area and also does not information regarding the development of the NAAQS. anticipate any major changes at Mill of the projected inventories, please see To evaluate maintenance through Creek. The projected emissions for area, Kentucky’s June 23, 2017, 2032 and satisfy the 10-year interval non-road mobile, and on-road mobile nonattainment SIP revision.

TABLE 4—ATTAINMENT & PROJECTED FUTURE EMISSIONS INVENTORIES FOR THE AREA [tpy]

Attainment Projected Projected Projected Sector 2018 SO2 2023 SO2 2028 SO2 2032 SO2 emissions emissions emissions emissions

Nonpoint ...... 0.46 0.38 0.37 0.38 Nonroad ...... 0.01 0.02 0.02 0.02 Onroad ...... 0.28 0.09 0.08 0.09 Point ...... 3752.16 3752.16 3752.16 3752.16

16 See 84 FR 30920 (June 28, 2019) (final rule), 83 Kentucky’s 2017 SIP submittal is included in the FR 56002 (November 9, 2018) (proposed rule). Docket for this proposed rulemaking.

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TABLE 4—ATTAINMENT & PROJECTED FUTURE EMISSIONS INVENTORIES FOR THE AREA—Continued [tpy]

Attainment Projected Projected Projected Sector 2018 SO2 2023 SO2 2028 SO2 2032 SO2 emissions emissions emissions emissions

Total ...... 3752.91 3752.65 3752.64 3752.65

In situations where local emissions monitoring data trends substantiate the NAAQS. In addition to assuring are the primary contributor to SO2 reductions from Mill Creek facility. continued attainment in this manner, nonattainment, such as the Jefferson Kentucky will verify continued d. Monitoring Network County Area, if the future projected attainment through operation of the emissions in the nonattainment area The Watson Lane monitor (AQS ID: monitoring network. remain at or below the baseline 21–111–0051) is the only SO2 monitor located within the Jefferson County f. Contingency Measures in the emissions in the nonattainment area, Maintenance Plan then the related ambient air quality Area, and the 2010 1-hour SO2 standards should not be exceeded in the nonattainment designation was based Section 175A of the CAA requires that future. Kentucky has projected on data collected from 2009–2011 at this a maintenance plan include such emissions as described previously, and monitor. In its maintenance plan, contingency measures as EPA deems these projections indicate that emissions LMAPCD has committed to maintaining necessary to assure that the state will in the Jefferson County Area will remain an appropriate, well-sited monitoring promptly correct a violation of the at nearly the same levels as those in the network in the Area, in accordance with NAAQS that occurs after redesignation. attainment year inventory for the 40 CFR part 58, through the The maintenance plan should identify duration of the maintenance plan. Any maintenance plan period to verify the the contingency measures to be adopted, increases in actual emissions from Mill continued maintenance of the 2010 SO2 a schedule and procedure for adoption Creek must remain below permitted NAAQS. Therefore, Kentucky has and implementation, and a time limit levels, which were made permanent and addressed the requirement for for action by the state. In cases where enforceable through incorporation into monitoring. Kentucky’s monitoring attainment revolves around compliance the SIP and demonstrate attainment of network plan was submitted on June 28, of a single source or a small set of 2019, and approved by EPA on October sources with emissions limits shown to the 1-hour SO2 NAAQS. Furthermore, any potential future SO emissions 3, 2019. provide for attainment, EPA interprets 2 ‘‘contingency measures’’ to mean that sources that may locate in or near the e. Verification of Continued Attainment Area would be required to comply with the state agency has a comprehensive LMAPCD has the legal authority to the LMAPCD’s approved PSD program to identify sources of violations enforce and implement all measures permitting programs to ensure that the of the SO2 NAAQS and to undertake necessary to attain and maintain the Area will continue to meet the NAAQS. aggressive follow-up for compliance and NAAQS. See, e.g., Kentucky Revised enforcement, including expedited As discussed in the SO2 Statutes (KRS) Chapter 77 (which procedures for establishing enforceable Nonattainment Area Guidance, an provides LMAPCD with the authority to consent agreement pending the approved attainment plan that relies on implement and enforce orders, rules, adoption of revised SIPs.18 A state air quality dispersion modeling using and regulations necessary or proper to should also identify specific indicators maximum allowable emissions, such as accomplish the purposes of the chapter, to be used to determine when the Kentucky’s attainment plan for the Area, including taking legal action and contingency measures need to be can generally be expected to imposing fines for violations). implemented. The maintenance plan demonstrate that the standard will be The sole point source within the must include a requirement that a state maintained for the requisite 10 years nonattainment area, Mill Creek, is will implement all measures with and beyond without regard to any required to submit annual emissions respect to control of the pollutant that changes in operation rate of the statements to LMAPCD pursuant to were contained in the SIP before pertinent sources that do not involve LMAPCD Regulation 1.06. LMAPCD redesignation of the area to attainment increases in maximum allowable will use these statements, along with in accordance with section 175A(d). emissions.17 EPA believes that the Area monitoring data collected as described The contingency plan included in the will continue to maintain the standard in the previous section, to verify maintenance plan contains triggers to at least through the year 2032 because continued attainment. Monitoring data determine when contingency measures the air quality modeling in the approved is regularly compared to the SO2 are needed and what kind of measures attainment plan showed that the Area NAAQS and reported to the Louisville should be used. In the event of a single would attain the standard based on Air Pollution Control Board. LMAPCD monitored exceedance of the 1-hour maximum allowable emissions limits at will compare Mill Creek’s annual 75ppb SO2 NAAQS at the Watson Lane Mill Creek that are incorporated into the emissions statements with the monitor, LMAPCD will expeditiously SIP, these sources have fully attainment inventory and the permanent investigate and perform culpability implemented the permanent and and enforceable SO2 emissions limits for analysis to determine the source that enforceable modeled limits and Mill Creek discussed above. cause the exceedance and/or violation 19 controls, and the emissions reductions Furthermore, any potential future SO2 18 from these measures are reflected in the emissions sources that may locate in or See SO2 Nonattainment Area Guidance at p.69. attaining design values for the Area. near the Area would be required to 19 Kentucky’s contingency measure trigger Furthermore, the Watson Lane comply with the LMAPCD’s approved accounts for a possible exceedance or violation of the 1-hour SO2 standard. As specified in 40 CFR PSD permitting programs to ensure that 50.17(b), the 1-hour primary SO2 NAAQS is met at 17 See SO2 Nonattainment Area Guidance at p.67. the Area will continue to meet the Continued

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and enforce any SIP or permit limit that VII. Proposed Actions areas that have been redesignated to is violated. If all sources are found to be EPA is proposing to take three attainment. Moreover, the Administrator in compliance with applicable SIP and separate but related actions regarding is required to approve a SIP submission permit emission limits, LMAPCD shall the redesignation request and associated that complies with the provisions of the determine the cause of the exceedance SIP revision for the Jefferson County Act and applicable Federal regulations. and determine what additional control Area. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). measures are necessary to impose on the First, EPA is proposing to determine Thus, in reviewing SIP submissions, area’s stationary sources to continue to that the Area has attained the 2010 1- EPA’s role is to approve state choices, provided that they meet the criteria of maintain attainment of the SO2 NAAQS. hour SO2 NAAQS. LMAPCD shall inform any affected Second, EPA is proposing to approve the CAA. Accordingly, these proposed stationary sources of the monitored SO2 the maintenance plan for the Area and actions merely propose to approve state exceedance and the potential need for to incorporate it into the SIP. As law as meeting Federal requirements additional control measures. Within six described above, the maintenance plan and do not impose additional months of notification, the source must demonstrates that the Area will requirements beyond those imposed by submit a detailed plan of action continue to maintain the 2010 1-hour state law. For these reasons, these specifying additional control measures proposed actions: SO2 NAAQS through 2032. • to be implemented no later than 18 Third, EPA is proposing to approve Are not significant regulatory months after the notification, or 24 Kentucky’s request for redesignation of actions subject to review by the Office months from the initial exceedance, the Area from nonattainment to of Management and Budget under Executive Orders 12866 (58 FR 51735, whichever comes first. The additional attainment for the 2010 1-hour SO2 control measures will be submitted to NAAQS based on compliance with the October 4, 1993) and 13563 (76 FR 3821, EPA for approval and incorporation into redesignation criteria provided under January 21, 2011); • Are not Executive Order 13771 (82 the SIP. Such measures may require that CAA section 107(d)(3)(E). If finalized, FR 9339, February 2, 2017) regulatory Mill Creek reduce load. Additional approval of the redesignation request for actions because these actions are not contingency measures include the the Jefferson County Area would change significant regulatory actions under alternative RACT/RACM of switching to the official designation of the portion of low-sulfur fuel. LMAPCD will continue Executive Order 12866; Jefferson County encompassed by the • Do not impose information to implement all measures with respect polygon with the vertices using UTM collection burdens under the provisions to the control of SO which were 2 coordinates in UTM zone 16 with datum of the Paperwork Reduction Act (44 contained in the SIP for the Area before NAD83 as follows: (1) Ethan Allen Way U.S.C. 3501 et seq.); redesignation. extended to the Ohio River at UTM • Are certified as not having a EPA has preliminarily concluded that Easting (m) 595738, UTM Northing significant economic impact on a the maintenance plan adequately 4214086 and Dixie Highway (US60 and substantial number of small entities addresses the five basic components of US31W) at UTM Easting (m) 597515, under the Regulatory Flexibility Act (5 a maintenance plan: The attainment UTM Northing 4212946; (2) Along Dixie U.S.C. 601 et seq.); emissions inventory; maintenance Highway from UTM Easting (m) 597515, • Do not contain any unfunded demonstration; monitoring; verification UTM Northing 4212946 to UTM Easting mandates or significantly or uniquely of continued attainment; and a (m) 595859, UTM Northing 4210678; (3) affect small governments, as described contingency plan. Therefore, EPA Near the adjacent property lines of in the Unfunded Mandates Reform Act proposes to determine that the Louisville Gas and Electric-Mill Creek of 1995 (Public Law 104–4); maintenance plan for the Area meets the Electric Generating Station and Kosmos • Do not have Federalism requirements of section 175A of the Cement where they join Dixie Highway implications as specified in Executive CAA and proposes to incorporate the at UTM Easting (m) 595859, UTM Order 13132 (64 FR 43255, August 10, maintenance plan into the Kentucky Northing 4210678 and the Ohio River at 1999); • SIP. UTM Easting (m) 595326, UTM Are not economically significant Northing 4211014; (4) Along the Ohio regulatory actions based on health or VI. What is the effect of EPA’s proposed River from UTM Easting (m) 595326, safety risks subject to Executive Order actions? UTM Northing 4211014 to UTM Easting 13045 (62 FR 19885, April 23, 1997); (m) 595738, UTM Northing 4214086, as • Are not significant regulatory Approval of Kentucky’s redesignation found at 40 CFR part 81, from actions subject to Executive Order request would change the legal nonattainment to attainment for the 13211 (66 FR 28355, May 22, 2001); designation of the portion of Jefferson 2010 1-hour SO2 NAAQS. • Are not subject to requirements of County that is within the Jefferson Section 12(d) of the National VIII. Statutory and Executive Order County Area, as found at 40 CFR part Technology Transfer and Advancement Reviews 81, section 81.310, from nonattainment Act of 1995 (15 U.S.C. 272 note) because to attainment for the 2010 1-hour SO2 Under the CAA, redesignation of an application of those requirements would NAAQS. Approval of Kentucky’s area to attainment and the be inconsistent with the CAA; and associated SIP revision would also accompanying approval of a • Will not have disproportionate incorporate a plan for maintaining the maintenance plan under section human health or environmental effects 2010 1-hour SO2 NAAQS in the 107(d)(3)(E) are actions that affect the under Executive Order 12898 (59 FR Jefferson County Area through 2032 into status of a geographical area and do not 7629, February 16, 1994). the SIP. impose any additional regulatory This redesignation action is not requirements on sources beyond those approved to apply on any Indian an ambient air quality monitoring site when the 3- imposed by state law. A redesignation to reservation land or in any other area year average of the annual 99th percentile of daily attainment does not in and of itself where EPA or an Indian tribe has maximum 1- hour average concentrations is less demonstrated that a tribe has than or equal to 75 ppb. In a calendar year, four create any new requirements, but rather days with a maximum hourly value above 75 ppb results in the applicability of jurisdiction. In those areas of Indian is considered an exceedance. requirements contained in the CAA for country, the rule does not have tribal

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implications as specified by Executive reference, Intergovernmental relations, Dated: May 5, 2020. Order 13175 (65 FR 67249, November 9, Reporting and recordkeeping, Sulfur Mary Walker, 2000), nor will it impose substantial dioxide. Regional Administrator, Region 4. direct costs on tribal governments or 40 CFR Part 81 [FR Doc. 2020–10063 Filed 5–14–20; 8:45 am] preempt tribal law. BILLING CODE 6560–50–P List of Subjects Environmental protection, Air pollution control, National parks, 40 CFR Part 52 Wilderness areas. Environmental protection, Air pollution control, Incorporation by Authority: 42 U.S.C. 7401 et seq.

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Notices Federal Register Vol. 85, No. 95

Friday, May 15, 2020

This section of the FEDERAL REGISTER FOR FURTHER INFORMATION CONTACT: For for the importation of seed and contains documents other than rules or information on the regulations related to screenings into the United States proposed rules that are applicable to the the importation of seeds and screenings, without posing a plant pest or noxious public. Notices of hearings and investigations, contact Ms. Lydia Colo´n, Senior weed risk. committee meetings, agency decisions and Regulatory Policy Specialist, PHP, PPQ, The seed analysis program involves rulings, delegations of authority, filing of the use of information collection petitions and applications and agency APHIS, 4700 River Road, Unit 133, statements of organization and functions are Riverdale, MD 20737; (301) 851–2302. activities, including a compliance examples of documents appearing in this For further information on the agreement, seed analysis certificate, section. information collection process, contact declaration for importation, container Mr. Joseph Moxey, APHIS Information labeling, notification of seed location, a Collection Coordinator, at (301) 851– seed return request, seed identity DEPARTMENT OF AGRICULTURE 2483. maintenance, documentation for U.S. SUPPLEMENTARY INFORMATION: origin exported seed returned to the Animal and Plant Health Inspection Title: Imported Seeds and Screenings. United States, written appeal for Service OMB Control Number: 0579–0124. cancellation of a compliance agreement Type of Request: Reinstatement of an and request for a hearing, and associated [Docket No. APHIS–2020–0031] information collection. recordkeeping. Abstract: Under the authority of the We are asking the Office of Notice of Request for Reinstatement of Federal Seed Act (FSA) of 1939, as Management and Budget (OMB) to an Information Collection; Imported amended (7 U.S.C. 1551 et seq.), the approve our use of these information Seeds and Screenings U.S. Department of Agriculture (USDA) collection activities, as described, for 3 regulates the importation and interstate years. ACTION: Reinstatement of an information movement of certain agricultural and The purpose of this notice is to solicit collection; comment request. vegetable seeds and screenings. Title III comments from the public (as well as affected agencies) concerning our SUMMARY: In accordance with the of the FSA, ‘‘Foreign Commerce,’’ requires shipments of imported information collection. These comments Paperwork Reduction Act of 1995, this will help us: notice announces the Animal and Plant agricultural and vegetable seeds to be labeled correctly and to be tested for the (1) Evaluate whether the collection of Health Inspection Service’s intention to information is necessary for the proper request the reinstatement of an presence of the seeds of certain noxious weeds as a condition of entry into the performance of the functions of the information collection associated with Agency, including whether the the regulations for the importation of United States. The Animal and Plant Health Inspection Service’s (APHIS) information will have practical utility; seeds and screenings from Canada into (2) Evaluate the accuracy of our regulations implementing the provisions the United States. estimate of the burden of the collection of Title III of the FSA are found in 7 CFR DATES: We will consider all comments of information, including the validity of part 361. the methodology and assumptions used; that we receive on or before July 14, The regulations in 7 CFR part 361, (3) Enhance the quality, utility, and 2020. ‘‘Importation of Seed and Screenings clarity of the information to be ADDRESSES: You may submit comments under the Federal Seed Act’’ (§§ 361.1 to collected; and by either of the following methods: 361.10, referred to below as the • (4) Minimize the burden of the Federal eRulemaking Portal: Go to regulations), prohibit or restrict the collection of information on those who http://www.regulations.gov/ importation of agricultural seed, are to respond, through use, as #!docketDetail;D=APHIS-2020-0031. vegetable seed, and screenings into the • appropriate, of automated, electronic, Postal Mail/Commercial Delivery: United States. Section 361.7 provides mechanical, and other collection Send your comment to Docket No. the regulations for special provisions for technologies; e.g., permitting electronic APHIS–2020–0031, Regulatory Analysis Canadian-origin seed and screenings, submission of responses. and Development, PPD, APHIS, Station and § 361.8 provides the regulations for Estimate of burden: The public 3A–03.8, 4700 River Road, Unit 118, the cleaning of imported seed and burden for this collection of information Riverdale, MD 20737–1238. processing of certain Canadian-origin is estimated to average 0.35 hours per Supporting documents and any screenings. response. comments we receive on this docket APHIS’ Plant Protection and Respondents: Government food may be viewed at http:// Quarantine (PPQ) program operates a inspection agency officials; and www.regulations.gov/#!docketDetail; seed analysis program with Canada that commercial importers, seed cleaning/ D=APHIS-2020-0031 or in our reading allows U.S. companies that import seed processing facility personnel, and seed room, which is located in Room 1141 of for cleaning or processing to enter into laboratory personnel. the USDA South Building, 14th Street compliance agreements with APHIS. Estimated annual number of and Independence Avenue SW, This program eliminates the need for respondents: 1,163. Washington, DC. Normal reading room sampling shipments of Canadian-origin Estimated annual number of hours are 8 a.m. to 4:30 p.m., Monday seed at the U.S.-Canadian border and responses per respondent: 23. through Friday, except holidays. To be allows certain seed importers to clean Estimated annual number of sure someone is there to help you, the seed without direct supervision of responses: 27,038. please call (202) 799–7039 before an APHIS inspector. The program Estimated total annual burden on coming. provides a safe and expedited process respondents: 9,629 hours. (Due to

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averaging, the total annual burden hours Done in Washington, DC, this 11th day of whether the information shall have may not equal the product of the annual May 2020. practical utility; (b) the accuracy of the number of responses multiplied by the Michael Watson, agency’s estimate of the burden of the reporting burden per response.) Acting Administrator, Animal and Plant proposed collection of information, All responses to this notice will be Health Inspection Service. including the validity of the summarized and included in the request [FR Doc. 2020–10402 Filed 5–14–20; 8:45 am] methodology and assumptions that were for OMB approval. All comments will BILLING CODE 3410–34–P used; (c) ways to enhance the quality, also become a matter of public record. utility, and clarity of the information to be collected; and (d) ways to minimize Done in Washington, DC, this 11th day of DEPARTMENT OF AGRICULTURE May 2020. the burden of the collection of Michael Watson, information on those who are to Food and Nutrition Service respond, including use of appropriate Acting Administrator, Animal and Plant Health Inspection Service. Agency Information Collection automated, electronic, mechanical, or other technological collection [FR Doc. 2020–10403 Filed 5–14–20; 8:45 am] Activities: Proposed Collection; techniques or other forms of information BILLING CODE 3410–34–P Comment Request—User Access Request Form FNS–674 technology. Title: User Access Request Form. AGENCY: Food and Nutrition Service DEPARTMENT OF AGRICULTURE Form Number: FNS–674. (FNS), USDA. OMB Number: 0584–0532. Animal and Plant Health Inspection ACTION: Notice. Expiration Date: 6/30/2021. Service Type of Request: Revision of a SUMMARY: In accordance with the currently approved collection. Paperwork Reduction Act of 1995, this [Docket No. APHIS–2019–0086] Abstract: Form FNS–674 is designed notice invites the general public and to collect user information required to other public agencies to comment on the gain access to FNS Information Systems. General Conference Committee of the proposed information collection. This is National Poultry Improvement Plan; Affected Public: Contractors, State a revision of a currently approved Agencies. Solicitation for Membership; collection. The purpose of this Correction Estimated Number of Respondents: information collection request is to 2,700. AGENCY: Animal and Plant Health continue the use of the electronic form The respondents are State agencies, Inspection Service, USDA. FNS–674, titled ‘‘User Access Request who are located in the 50 states and Form.’’ This form will continue to allow ACTION: Notice; correction. Trust Territories, staff contractors and access to current FNS systems, modified Federal employees. Respondents who SUMMARY: We are correcting an error in access or to remove user access. require access to the FNS systems are a notice published in the Federal DATES: Written comments must be estimated at 3,600 annually (includes Register on April 27, 2020, which received on or before July 14, 2020. Federal, State and private) however, announced a forthcoming General ADDRESSES: Comments may be sent to: only 2,700 will account for the total Conference Committee membership Joseph Binns, Food and Nutrition public burden, excluding Federal solicitation. We provided an incorrect Service, U.S. Department of Agriculture, employees. FNS estimates that it will statement regarding nominations. This 1320 Braddock Place, Room 232, receive an average of 300 requests per document corrects that error. Alexandria, VA 22314. Comments may month (15 per day). Of the 300, 70 also be submitted via email to FOR FURTHER INFORMATION CONTACT: Dr. percent (or 210) of the responses are Elena Behnke, Senior Coordinator, [email protected]. Comments will State Agency users, 5 percent (or 15) are National Poultry Improvement Plan, VS, also be accepted through the Federal staff contractors and 25 percent (or 75) APHIS, USDA, 1506 Klondike Road, eRulemaking Portal. Go to http:// are Federal employees which is not Suite 101, Conyers, GA 30094; phone www.regulations.gov, and follow the included in the total number of (770) 922–3496; email: elena.behnke@ online instructions for submitting responses. Annually, that results in usda.gov. comments electronically. 2,700 respondents (210 State Agency All responses to this notice will be users per month + 15 staff contractors SUPPLEMENTARY INFORMATION: summarized and included in the request per month × 12 months). for Office of Management and Budget Correction Estimated Number of Responses per approval. All comments will be a matter Respondent: 1.9. In a notice published in the Federal of public record. Estimated Total Annual Responses: Register on April 27, 2020 (85 FR FOR FURTHER INFORMATION CONTACT: 5,220. 23226–23227, Docket No. APHIS–2019– Requests for additional information or Estimated Time per Response: 0.167 0086), on page 23226, second column, copies of this information collection of an hour. Each respondent takes correct the SUMMARY to read: should be directed to Joseph Binns at approximately 0.167 of an hour, or 10 SUMMARY: We are giving notice that the 703–605–1181. minutes, to complete the required Secretary of Agriculture is soliciting SUPPLEMENTARY INFORMATION: Comments information on the online form. nominations for the election of regional are invited on: (a) Whether the proposed Estimated Total Annual Burden on members and their alternates for the collection of information is necessary Respondents: 870 hours. See the table General Conference Committee of the for the proper performance of the below for estimated total annual burden National Poultry Improvement Plan. functions of the agency, including for each type of respondent.

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REPORTING BURDEN

Number of responses Total Estimate of Total Affected Form No. Number of annually annual burden hours annual public respondents per responses per response burden respondent hours

Contractors ...... FNS–674 ...... 180 1 180 0.16667 (10 minutes) ...... 30 State Agency Users ...... FNS–674 ...... 2,520 2 5,040 0.16667 (10 minutes) ...... 840

Estimated Total Annual Burden ...... 2,700 ...... 5,220 (0.16667) 10 minutes ...... 870

Pamilyn Miller, FOR FURTHER INFORMATION CONTACT: Dated: May 11, 2020. Administrator, Food and Nutrition Service. Jeanne Dawson, RAC Coordinator, by Cikena Reid, [FR Doc. 2020–10458 Filed 5–14–20; 8:45 am] phone at 406–683–3987 or by email at Committee Management Officer. BILLING CODE 3410–30–P [email protected]. [FR Doc. 2020–10471 Filed 5–14–20; 8:45 am] Individuals who use BILLING CODE 3411–15–P telecommunication devices for the deaf DEPARTMENT OF AGRICULTURE (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 DEPARTMENT OF AGRICULTURE Forest Service between 8:00 a.m. and 8:00 p.m., Commodity Credit Corporation Tri-County Resource Advisory Eastern Standard Time, Monday through Friday. Committee; Meeting Rural Business-Cooperative Service SUPPLEMENTARY INFORMATION: The AGENCY: Forest Service, USDA. purpose of the meeting is to: [Docket number RBS–20–CO–OP–0018] ACTION: Notice of meeting. 1. Introduce the new RAC members; SUMMARY: The Tri-County Resource 2. Elect a RAC Chairperson; Solicitation of Applications for the Advisory Committee (RAC) will hold a 3. Discuss and determine if the RAC Higher Blends Infrastructure Incentive virtual meeting. The committee is will recommend fee change proposals Program (HBIIP) for Fiscal Year 2020 authorized under the Secure Rural for developed recreation sites on AGENCY: Commodity Credit Corporation Schools and Community Self- National Forest lands; and the Rural Business-Cooperative Determination Act (the Act) and 4. Discuss and determine whether Service, USDA. operates in compliance with the Federal RAC funds will be used to fund Advisory Committee Act. The purpose ACTION: Notice; announcement of committee members’ travel costs to the opening date for Higher Blends of the committee is to improve public meetings; and collaborative relationships and to Infrastructure Incentive Program provide advice and recommendations to 5. Discuss and recommend new Title application window. the Forest Service concerning projects II projects. This meeting is open to the public. SUMMARY: The Commodity Credit and funding consistent with Title II of Corporation (CCC) and the Rural the Act. RAC information and virtual The agenda will include time for people Business-Cooperative Service (RBCS), a meeting information can be found at the to make oral statements of three minutes Rural Development agency of the United following website: https:// or less. Individuals wishing to make an States Department of Agriculture www.fs.usda.gov/main/bdnf/ oral statement should request in writing (USDA), announced its general policy workingtogether/advisorycommittees. by Monday, May 18, 2020, to be scheduled on the agenda. Anyone who and application procedures for funding DATES: The meeting will be held on under the Higher Blends Infrastructure Monday, June 1, 2020, at 1:00 p.m. would like to bring related matters to the attention of the committee may file Incentive Program (HBIIP) in a Notice of (MDT). Funding Availability (NOFA) on May 5, All RAC meetings are subject to written statements with the committee 2020 in the Federal Register. The HBIIP cancellation. For status of the meeting staff before or after the meeting. Written will provide up to $100 million in prior to attendance, please contact the comments, requests for time for oral competitive grants to eligible entities for person listed under FOR FURTHER comments or requests for instructions to activities designed to expand the sales INFORMATION CONTACT. participate virtually must be sent to Jeanne Dawson, RAC Coordinator, 420 and use of renewable fuels under the ADDRESSES: The meeting will be held Higher Blends Infrastructure Incentive virtually. For virtual meeting Barrett Street, Dillon, Montana 59725; by email to [email protected] or Program (HBIIP). This Notice announces informaiton, please contact the person the opening date for the HBIIP FOR FURTHER INFORMATION by phone at 406–683–3987. listed under application window. CONTACT. Meeting Accommodations: If you are Written comments may be submitted a person requiring reasonable DATES: Applications for the Higher as described under SUPPLEMENTARY accommodation, please make requests Biofuels Infrastructure Incentive INFORMATION. All comments, including in advance for sign language Program will be accepted from May 15, names and addresses when provided, interpreting, assistive listening devices, 2020 through August 13, 2020. are placed in the record and are or other reasonable accommodation. For Applications received after 11:59 p.m. available for public inspection and access to the facility or proceedings, Eastern Daylight Time on August 13, copying. The public may inspect please contact the person listed in the 2020, will not be considered. The grant comments received at the Beaverhead- section titled FOR FURTHER INFORMATION period is not to exceed 18-months, Deerlodge National Forest Supervisor’s CONTACT. All reasonable unless otherwise specified in the Grant Office. Please call ahead to facilitate that accommodation requests are managed Agreement or agreed to by CCC. inspection. on a case by case basis. ADDRESSES:

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Application Submission: The will begin to accept applications for the Information can also be found at http:// application system for electronic HBIIP beginning May 15, 2020. www.rd.usda.gov/HBIIP. submissions will be available through Robert Stephenson, http://www.rd.usda.gov/HBIIP. II. General Funding Information Electronic submissions: Electronic Executive Vice President, Commodity Credit Grants for up to 50 percent of total Corporation. submissions of applications will allow eligible project costs, but not more than Mark Brodziski, for the expeditious review of an $5 million, are made available to vehicle Applicant’s proposal. As a result, all Acting Administrator, Rural Business- fueling facilities, including, but not Applicants must file their application Cooperative Service. limited to, local fueling stations/ electronically. Applicants’ requests to [FR Doc. 2020–10487 Filed 5–14–20; 8:45 am] locations, convenience stores (CS), establish an applicant user account will BILLING CODE 3410–05–P be available through http:// hypermarket fueling stations (HFS), fleet www.rd.usda.gov/HBIIP. facilities, and fuel terminal operations, midstream partners, and/or distribution FOR ADDITONAL INFORMATION CONTACT: COMMISSION ON CIVIL RIGHTS facilities. For general inquiries regarding the Agenda and Notice of Public Meeting HBIIP, contact Anthony Crooks: A. Type of Instrument of the North Dakota Advisory telephone (202) 205–9322, email: Committee [email protected]. Persons Grants. Awards to successful with disabilities that require alternative applicants will be in the form of cost- AGENCY: Commission on Civil Rights. means for communication should share grants for up to 50 percent of total ACTION: Announcement of meetings. contact the U.S. Department of eligible project costs, but not to exceed Agriculture (USDA) Target Center at $5 million, whichever is less. SUMMARY: Notice is hereby given, (202) 720–2600 (voice). pursuant to the provisions of the rules B. Available Funds SUPPLEMENTARY INFORMATION: and regulations of the U.S. Commission Authority: This solicitation is issued Under HBIIP, up to $100 million is on Civil Rights (Commission), and the pursuant to; 62 Stat 1070, and the made available to eligible participants. Federal Advisory Committee Act Commodity Credit Corporation Charter Of the total amount of available funds, (FACA), that a planning meeting of the Act of 1948 (Charter Act); U.S. Code 15 approximately $86 million will be made North Dakota Advisory Committee to U.S.C. 714. available to transportation fueling the Commission will be held by teleconference at 12:00 p.m. (CDT) on facilities (including fueling stations, Overview Monday, June 1, 2020. The purpose of convenience stores, hypermarket fueling the meeting is for planning of its next Federal Agency: The Commodity stations, fleet facilities, and similar Credit Corporation (CCC) and the Rural civil rights project. entities with capital investments) for Business-Cooperative Service (RBCS), DATE AND TIME: eligible implementation activities Monday, June 1, 2020, at (USDA). 12:00 p.m. CDT. related to higher blends of fuel ethanol Funding Opportunity Title: Higher PUBLIC CALL-IN INFORMATION: Conference Blends Infrastructure Incentive Program greater than 10 percent ethanol, such as E15 or higher; and approximately $14 call-in number: 1–800–458–4121 and (HBIIP) for Fiscal Year 2020. conference call 4347843. Announcement Type: Solicitation of million will be made available to TDD: Dial Federal Relay Service 1–800– Applications; announcement of opening transportation fueling facilities and fuel 877–8339 and give the operator the date for Higher Blends Infrastructure distribution facilities (including above conference call number and Incentive Program application window. terminal operations, depots, and conference ID. The grant period is not to exceed 18- midstream partners), for eligible months, unless otherwise specified in implementation activities related to FOR FURTHER INFORMATION CONTACT: the Grant Agreement or agreed to by higher blends of biodiesel greater than Evelyn Bohor, at [email protected] or CCC.’’ 5 percent biodiesel, such as B20 or by phone at (202) 376–7533. Catalog of Federal Domestic higher. SUPPLEMENTARY INFORMATION: Interested Assistance (CFDA) Title: The Higher members of the public may listen to the Blends Infrastructure Incentive Program C. Approximate Number of Awards discussion by calling the following toll- (HBIIP)–10.754. The number of awards will depend on free conference call-in number: 1–800– 458–4121 and conference call 4347843. the number of eligible participants and I. Background Please be advised that before placing the total amount of requested funds. In On May 5, 2020, the CCC and RBCS them into the conference call, the the unlikely event that every successful (the Agency) published a NOFA in the conference call operator will ask callers Federal Register announcing the applicant is awarded the maximum to provide their names, their availability of up to $100 million in amount available of $5 million, 20 organizational affiliations (if any), and competitive grants to eligible entities for awards will be made. The Agency email addresses (so that callers may be activities designed to expand the sales intends/expects to make approximately notified of future meetings). Callers can and use of renewable fuels under the 150 awards and provide assistance to expect to incur charges for calls they Higher Blends Infrastructure Incentive 1,500 locations from this solicitation. initiate over wireless lines, and the Program (HBIIP). The Agency stated in III. Program Requirements Commission will not refund any the NOFA that it would finalize the incurred charges. Callers will incur no application window for enrollment in To be eligible for an award, charge for calls they initiate over land- the HBIIP by notice in the Federal applications must meet all the line connections to the toll-free Register and Grants.gov. subject to requirements contained in the NOFA conference call-in number. future opening of the electronic published in the Federal Register on Persons with hearing impairments application system. The purpose of this May 5, 2020 at 85 FR 26656. may also follow the discussion by first Notice is to announce that the Agency calling the Federal Relay Service at 1–

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800–877–8339 and providing the their advisory memorandum on voting office at the above email or street operator with the toll-free conference rights and felony convictions. address. call-in number: 1–800–458–4121 and DATES: The meetings will be held on: Agenda conference call 4347843. • Thursday, May 28, 2020, at 3:00 p.m. Members of the public are invited to I. Welcome & Roll Call Pacific Time make statements during the open II. Approval of Minutes • Thursday, June 4, 2020, at 3:00 p.m. comment period of the meeting or III. Discussion of Draft Memorandum Pacific Time submit written comments. The IV. Public Comment • Thursday, June 11, 2020, at 3:00 p.m. V. Adjournment comments must be received in the Pacific Time regional office approximately 30 days Dated: May 11, 2020. after each scheduled meeting. Written Public Call Information: Dial: 800– David Mussatt, comments may be emailed to Evelyn 367–2403, Conference ID: 2040104. Supervisory Chief, Regional Programs Unit. Bohor at [email protected]. Persons FOR FURTHER INFORMATION CONTACT: [FR Doc. 2020–10405 Filed 5–14–20; 8:45 am] who desire additional information may Brooke Peery, Designated Federal BILLING CODE 6335–01–P contact Evelyn Bohor at 202–381–8915. Officer (DFO), at [email protected] or Records and documents discussed (202) 701–1376. during the meeting will be available for SUPPLEMENTARY INFORMATION: Members DEPARTMENT OF COMMERCE public viewing as they become available of the public may listen to the at https://gsageo.force.com/FACA/apex/ discussion. This meeting is available to Foreign-Trade Zones Board FACAPublicCommittee the public through the above listed toll ?id=a10t0000001gzl9AAA; click the free number. An open comment period [Order No. 2098] ‘‘Meeting Details’’ and ‘‘Documents’’ will be provided to allow members of links. Records generated from this Approval of Subzone Status; Cheniere the public to make a statement as time Energy, Inc., Portland, Texas meeting may also be inspected and allows. The conference call operator reproduced at the Western Regional will ask callers to identify themselves, Pursuant to its authority under the Foreign- Office, as they become available, both the organization they are affiliated with Trade Zones Act of June 18, 1934, as before and after the meeting. Persons (if any), and an email address prior to amended (19 U.S.C. 81a–81u), the Foreign- interested in the work of this advisory placing callers into the conference Trade Zones Board (the Board) adopts the committee are advised to go to the room. Callers can expect to incur regular following Order: Commission’s website, www.usccr.gov, charges for calls they initiate over Whereas, the Foreign-Trade Zones or to contact the agency at the above wireless lines, according to their (FTZ) Act provides for ‘‘. . . the phone number or email address. wireless plan. The Commission will not establishment . . . of foreign-trade Agenda refund any incurred charges. Callers zones in ports of entry of the United will incur no charge for calls they States, to expedite and encourage Monday, June 1, 2020, 12:00 p.m. (CDT) initiate over land-line connections to foreign commerce, and for other • Roll call the toll-free telephone number. Persons purposes,’’ and authorizes the Foreign- • Planning Next Civil Rights Project with hearing impairments may also Trade Zones Board to grant to qualified • Other Business follow the proceedings by first calling corporations the privilege of • Open Comment the Federal Relay Service at 1–800–877– establishing foreign-trade zones in or • Adjourn 8339 and providing the Service with the adjacent to U.S. Customs and Border conference call number and conference Protection ports of entry; Dated: May 11, 2020. ID number. Whereas, the Board’s regulations (15 David Mussatt, Members of the public are also CFR part 400) provide for the Supervisory Chief, Regional Programs Unit. entitled to submit written comments; establishment of subzones for specific [FR Doc. 2020–10406 Filed 5–14–20; 8:45 am] the comments must be received in the uses; BILLING CODE P regional office within 30 days following Whereas, the Port of Corpus Christi the meeting. Written comments may be Authority, grantee of Foreign-Trade mailed to the Regional Programs Unit Zone 122, has made application to the COMMISSION ON CIVIL RIGHTS Office, U.S. Commission on Civil Rights, Board for the establishment of a subzone 300 N Los Angeles St., Suite 2010, Los Notice of Public Meeting of the at the facility of Cheniere Energy, Inc., Angeles, CA 90012. They may also be Washington Advisory Committee located in Portland, Texas (FTZ Docket emailed to Brooke Peery at bpeery@ B–72–2019, docketed November 25, AGENCY: U.S. Commission on Civil usccr.gov. 2019); Rights. Records generated from this meeting Whereas, notice inviting public ACTION: Announcement of meeting. may be inspected and reproduced at the comment has been given in the Federal Regional Programs Unit Office, as they Register (84 FR 66149–66150, December SUMMARY: Notice is hereby given, become available, both before and after 3, 2019) and the application has been pursuant to the provisions of the rules the meeting. Records of the meeting will processed pursuant to the FTZ Act and and regulations of the U.S. Commission be available at: https:// the Board’s regulations; and, on Civil Rights (Commission) and the www.facadatabase.gov/FACA/FACA Whereas, the Board adopts the Federal Advisory Committee Act that PublicViewCommitteeDetails?id= findings and recommendations of the the Washington Advisory Committee a10t0000001gzkZAAQ. examiner’s memorandum, and finds that (Committee) will hold a series of Please click on the ‘‘Meeting Details’’ the requirements of the FTZ Act and the meetings via teleconference on and ‘‘Documents’’ links. Persons Board’s regulations are satisfied; Thursday, May 28, Thursday, June 4, interested in the work of this Committee Now, therefore, the Board hereby and Thursday, June 11, 2020 at 3:00 are also directed to the Commission’s approves subzone status at the facility of p.m. Pacific Time. The purpose of the website, http://www.usccr.gov, or may Cheniere Energy, Inc., located in meeting is for the Committee to discuss contact the Regional Programs Unit Portland, Texas (Subzone 122X), as

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described in the application and Expansion Act of 1962 (Section 232) The existing subzone and the proposed Federal Register notice, subject to the and Section 301 of the Trade Act of site would be subject to the existing FTZ Act and the Board’s regulations, 1974 (Section 301), depending on the activation limit of FTZ 7. No additional including Section 400.13. country of origin. The applicable authorization for production activity has Dated: May 11, 2020. Section 232 and Section 301 decisions been requested at this time. In accordance with the Board’s Jeffrey I. Kessler, require subject merchandise to be admitted to FTZs in privileged foreign regulations, Camille Evans of the FTZ Assistant Secretary for Enforcement and Staff is designated examiner to review Compliance, Alternate Chairman, Foreign- status (19 CFR 146.41). Trade Zones Board. Public comment is invited from the application and make recommendations to the Executive [FR Doc. 2020–10449 Filed 5–14–20; 8:45 am] interested parties. Submissions shall be Secretary. BILLING CODE 3510–DS–P addressed to the Board’s Executive Secretary and sent to: [email protected]. The Public comment is invited from closing period for their receipt is June interested parties. Submissions shall be DEPARTMENT OF COMMERCE 24, 2020. addressed to the Board’s Executive A copy of the notification will be Secretary and sent to: [email protected]. The Foreign-Trade Zones Board available for public inspection in the closing period for their receipt is June 24, 2020. Rebuttal comments in [B–27–2020] ‘‘Reading Room’’ section of the Board’s website, which is accessible via response to material submitted during the foregoing period may be submitted Foreign-Trade Zone (FTZ) 143—West www.trade.gov/ftz. during the subsequent 15-day period to Sacramento, California; Notification of For further information, contact July 9, 2020. Proposed Production Activity, LiCAP Christopher Wedderburn at A copy of the application will be Technologies, Inc. (Electrodes), [email protected] or (202) available for public inspection in the Sacramento, California 482–1963. ‘‘Reading Room’’ section of the Board’s The Port of Sacramento, grantee of Dated: May 12, 2020. website, which is accessible via FTZ 143, submitted a notification of Andrew McGilvray, www.trade.gov/ftz. proposed production activity to the FTZ Executive Secretary. For further information, contact Board on behalf of LiCAP Technologies, [FR Doc. 2020–10450 Filed 5–14–20; 8:45 am] Camille Evans at Camille.Evans@ Inc. (LiCAP Technologies), located in BILLING CODE 3510–DS–P trade.gov or (202) 482–2350. Sacramento, California. The notification Dated: May 12, 2020. conforming to the requirements of the Andrew McGilvray, regulations of the FTZ Board (15 CFR DEPARTMENT OF COMMERCE Executive Secretary. 400.22) was received on April 21, 2020. [FR Doc. 2020–10451 Filed 5–14–20; 8:45 am] The applicant has submitted a Foreign-Trade Zones Board BILLING CODE 3510–DS–P separate application for FTZ designation [S–81–2020] at the company’s facility under FTZ 143. The facility is used for the Foreign-Trade Zone 7—Mayaguez, DEPARTMENT OF COMMERCE production of electrodes. Pursuant to 15 Puerto Rico; Application for Expansion CFR 400.14(b), FTZ activity would be of Subzone 7F, Puma Energy Caribe, Foreign-Trade Zones Board limited to the specific foreign-status LLC, Bayamon and Guaynabo, Puerto [B–29–2020] materials and components and specific Rico finished product described in the An application has been submitted to Foreign-Trade Zone (FTZ) 148— submitted notification (as described Knoxville, Tennessee; Notification of below) and subsequently authorized by the Foreign-Trade Zones Board (the Board) by the Puerto Rico Industrial Proposed Production Activity, CoLinx, the FTZ Board. LLC (Tapered Roller Bearing Unit and Production under FTZ procedures Development Company, grantee of FTZ Gearhead Kitting), Crossville, could exempt LiCAP Technologies from 7, requesting an expansion of Subzone Tennessee customs duty payments on the foreign- 7F on behalf of Puma Energy Caribe, status components used in export LLC. The application was submitted CoLinx, LLC (CoLinx) submitted a production. On its domestic sales, for pursuant to the provisions of the notification of proposed production the foreign-status materials/components Foreign-Trade Zones Act, as amended activity to the FTZ Board for its facility noted below, LiCAP Technologies (19 U.S.C. 81a–81u), and the regulations in Crossville, Tennessee. The would be able to choose the duty rate of the Board (15 CFR part 400). It was notification conforming to the during customs entry procedures that formally docketed on May 11, 2020. requirements of the regulations of the applies to electrodes (duty-free). LiCAP Subzone 7F was approved on May 15, FTZ Board (15 CFR 400.22) was Technologies would be able to avoid 2001 (Board Order 1165, 66 FR 28890– received on May 7, 2020. duty on foreign-status components 28891, May 25, 2001) and expanded on CoLinx already has authority to which become scrap/waste. Customs February 27, 2020 (S–235–2019, 85 FR produce certain kits of bearing products duties also could possibly be deferred or 12892, March 5, 2020). The subzone within FTZ 148. The current request reduced on foreign-status production consists of the following sites: Site 1 would add finished products and equipment. (173.81 acres)—State Road 28, Km 2, foreign-status materials/components to The components and materials Bayamon; and, Site 2 (45.18 acres)— the scope of authority. Pursuant to 15 sourced from abroad include: Carbon Road 28, Km .08, Guaynabo. CFR 400.14(b), additional FTZ authority powder; aluminum foil—coated The applicant is requesting authority would be limited to the specific foreign- aluminum foil; and, electrolytes (duty to expand the subzone to include an status materials/components and rate ranges from 4.8 to 5.3%). The additional site: Proposed Site 3 (2.28 specific finished products described in request indicates that certain materials/ acres)—located at Luis Mun˜ oz Marin the submitted notification (as described components are subject to special duties International Airport, General Cargo below) and subsequently authorized by under Section 232 of the Trade Area/Airport Fuel Facility, Carolina. the FTZ Board.

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Production under FTZ procedures DEPARTMENT OF COMMERCE provisions relating to public meetings could exempt CoLinx from customs found in 5 U.S.C. app. 2 § § 10(a)(1) and duty payments on the foreign-status Bureau of Industry and Security 10(a)(3). The remaining portions of the materials/components used in export meeting will be open to the public. Regulations and Procedures Technical production (estimated 4 percent of For more information, call Yvette Advisory Committee; Notice of production). On its domestic sales, for Springer at (202) 482–2813. Partially Closed Meeting the foreign-status materials/components Yvette Springer, noted below and in the existing scope The Regulations and Procedures Committee Liaison Officer. of authority, CoLinx would be able to Technical Advisory Committee will [FR Doc. 2020–10485 Filed 5–14–20; 8:45 am] meet June 2, 2020, at 10:00 a.m., Eastern choose the duty rates during customs BILLING CODE 3510–JT–P entry procedures that apply to kits of Daylight Time, via remote tapered roller bearing cup/cone teleconference. The Committee advises assemblies and gearheads (duty rates, the Office of the Assistant Secretary for DEPARTMENT OF COMMERCE 2.5% or 5.8%). CoLinx would be able to Export Administration on avoid duty on foreign-status implementation of the Export Bureau of Industry and Security components which become scrap/waste. Administration Regulations (EAR) and Agency Information Collection Customs duties also could possibly be provides for continuing review to update the EAR as needed. Activities; Submission to the Office of deferred or reduced on foreign-status Management and Budget (OMB) for production equipment. Agenda Review and Approval; Comment The materials/components sourced Public Session Request; Technology Letter of from abroad include tapered roller Explanation 1. Opening remarks by the Chairman bearing cones, inner and outer races for 2. Opening remarks by the Bureau of The Department of Commerce will tapered roller bearings, and fixed ratio Industry and Security submit the following information speed changers (duty rates, 2.5% or 3. Presentation of papers or comments collection request to the Office of 5.8%). The request indicates that certain by the Public Management and Budget (OMB) for tapered roller bearings are subject to an 4. Export Enforcement Update review and clearance in accordance antidumping/countervailing duty (AD/ 5. Regulations Update with the Paperwork Reduction Act of CVD) order if imported from China. The 6. Working Group Reports 1995, on or after the date of publication FTZ Board’s regulations (15 CFR 7. Automated Export System Update of this notice. We invite the general 400.14(e)) require that merchandise Closed Session public and other Federal agencies to subject to AD/CVD orders, or items comment on proposed, and continuing which would be otherwise subject to 8. Discussion of matters determined to information collections, which helps us suspension of liquidation under AD/ be exempt from the provisions assess the impact of our information CVD procedures if they entered U.S. relating to public meetings found in collection requirements and minimize customs territory, be admitted to the 5 U.S.C. app. 2 §§ 10(a)(1) and the public’s reporting burden. Public zone in privileged foreign status (19 10(a)(3). comments were previously requested CFR 146.41). The request also indicates The open session will be accessible via the Federal Register on 2/6/2020 that certain materials/components are via teleconference to participants on a during a 60-day comment period. This first come, first serve basis. To join the subject to special duties under Section notice allows for an additional 30 days conference, submit inquiries to Ms. 301 of the Trade Act of 1974 (Section for public comments. Yvette Springer at Yvette.Springer@ 301), depending on the country of Agency: Bureau of Industry and bis.doc.gov, no later than May 26, 2020. Security. origin. The Section 301 decisions A limited number of seats will be require subject merchandise to be Title: Technology Letter of available for the public session. Explanation. admitted to FTZs in privileged foreign Reservations are not accepted. To the status. OMB Control Number: 0694–0047. extent that time permits, members of the Form Number(s): None. Public comment is invited from public may present oral statements to Type of Request: Regular submission, interested parties. Submissions shall be the Committee. The public may submit extension of a current information addressed to the Board’s Executive written statements at any time before or collection. Secretary and sent to: [email protected]. The after the meeting. However, to facilitate Number of Respondents: 6,283. closing period for their receipt is June the distribution of public presentation Average Hours per Response: 30 24, 2020. materials to the Committee members, minutes to 2 hours. the Committee suggests that presenters A copy of the notification will be Burden Hours: 9,416. forward the public presentation Needs and Uses: The collection is available for public inspection in the materials prior to the meeting to Ms. necessary as export licensing officers ‘‘Reading Room’’ section of the Board’s Springer via email. must make decisions on licensing the website, which is accessible via The Assistant Secretary for export of United States commodities www.trade.gov/ftz. Administration, with the concurrence of and technical data to foreign countries. For further information, contact Diane the delegate of the General Counsel, When an export involves certain Finver at [email protected] or formally determined on December 19, technical data or knowhow described in (202) 482–1367. 2020, pursuant to Section 10(d) of the the Export Administration Regulation, Dated: May 11, 2020. Federal Advisory Committee Act, as additional information is required to amended (5 U.S.C. app. 2 § 10(d)), that fully understand the transaction and Andrew McGilvray, the portion of the meeting dealing with make a licensing decision. The Executive Secretary. pre-decisional changes to the Commerce additional information is necessary to [FR Doc. 2020–10448 Filed 5–14–20; 8:45 am] Control List and the U.S. export control evaluate technology exports as covered BILLING CODE 3510–DS–P policies shall be exempt from the under this collection. Under certain

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circumstances, the export of technology sustained the Department of of Erdemir’s home market date of sale; requires additional safeguards to insure Commerce’s (Commerce) third remand (2) C¸olakog˘lu’s request for a duty that advanced U.S. knowhow is not redetermination pertaining to the less- drawback adjustment; and (3) permitted to end up in the wrong hands. than-fair-value (LTFV) investigation of Commerce’s rejection of C¸olakog˘lu’s The letter of assurance puts the certain hot-rolled steel flat products corrections to international ocean consignee on notice that the technology (hot-rolled steel) from the Republic of freight expenses presented at is subject to U.S. export controls and Turkey (Turkey). Commerce is notifying verification.4 On July 20, 2018, causes the consignee to certify that it the public that the CIT’s final judgment Commerce issued its first results of will not release the data or the direct is not in harmony with Commerce’s redetermination, in which it determined product of the data to certain specified Amended Final Determination in the to: (1) Use the ‘‘click date’’ of the pro- countries; thus providing assurance that LTFV investigation of hot-rolled steel forma invoice as the date of sale for U.S. national security data will be from Turkey. Pursuant to the CIT’s final Erdemir’s home market sales; (2) grant safeguarded. judgment, Commerce is amending the C¸olakog˘lu’s request for a duty drawback Affected Public: Business or other for- estimated weighted-average dumping adjustment; and (3) continue to reject profit organizations. margins for Ereg˘li Demir ve C¸elik C¸olakog˘lu’s corrections to its reported Frequency: On occasion. Fabrikalari T.A.S¸. and Iskenderun international ocean freight expenses, Respondent’s Obligation: Voluntary. Demir Ve Celik (collectively, Erdemir) which were presented at verification.5 Legal Authority: Export Control and C¸olakog˘lu Metalurji A.S. and As a result of the changes in the First Reform Act 4812(b) and 4814(b)(1)(B). C¸olakog˘lu Dis Ticaret A.S. (collectively, Redetermination, Commerce calculated This information collection request C¸olakog˘lu), and excluding C¸olakog˘lu estimated weighted-average dumping may be viewed at www.reginfo.gov. from the Order. Further, Commerce is margins of 5.70 percent for C¸olakog˘lu, Follow the instructions to view the discontinuing, in part, the 2017–18 and 2.73 percent for Erdemir, and 5.29 Department of Commerce collections 2018–19 administrative reviews with percent for all other producers and currently under review by OMB. respect to C¸olakog˘lu. exporters of subject merchandise.6 Written comments and DATES: Applicable April 23, 2020. On December 27, 2018, in its Second recommendations for the proposed FOR FURTHER INFORMATION CONTACT: Toni Remand Order, the CIT sustained information collection should be Page, AD/CVD Operations, Office VII, Commerce’s revised home market date submitted within 30 days of the Enforcement and Compliance, of sale for Erdemir and its determination publication of this notice on the International Trade Administration, not to accept corrections to C¸olakog˘lu’s following website www.reginfo.gov/ U.S. Department of Commerce, 1401 international ocean freight expenses that public/do/PRAMain. Find this Constitution Avenue NW, Washington, had been presented at verification, and information collection by selecting DC 20230; telephone: (202) 482–1398. remanded Commerce’s methodology for ‘‘Currently under 30-day Review—Open calculating C¸olakog˘lu’s duty drawback SUPPLEMENTARY INFORMATION: 7 for Public Comments’’ or by using the adjustment. Specifically, the CIT found search function and entering either the Background that Commerce’s calculation title of the collection or the OMB On August 12, 2016, Commerce methodology of allocating exempted Control Number 0694–0047. published its Final Determination in the duties over the total cost of sales for hot- LTFV investigation of hot-rolled steel rolled steel to calculate C¸olakog˘lu’s duty Sheleen Dumas, from Turkey.1 Subsequently, on October drawback adjustment was inconsistent Department PRA Clearance Officer, Office of 3, 2016, Commerce published its with the statute.8 the Chief Information Officer, Commerce Amended Final Determination and On June 3, 2019, Commerce issued its Department. Order.2 As reflected in Commerce’s second results of redetermination, in [FR Doc. 2020–10466 Filed 5–14–20; 8:45 am] Amended Final Determination, which we increased C¸olakog˘lu’s U.S. BILLING CODE 3510–33–P Commerce calculated estimated price by the full amount of duties that weighted-average dumping margins of were drawn back or forgiven and then 6.77 percent for C¸olakog˘lu, 4.15 percent added the same per-unit duty amount to DEPARTMENT OF COMMERCE for Erdemir, and 6.41 percent for all normal value as a circumstance of sale adjustment.9 As a result of the changes International Trade Administration other producers and exporters of subject merchandise.3 to our duty drawback methodology in [A–489–826] C¸olakog˘lu and Erdemir appealed the Second Redetermination, Commerce Commerce’s Final Determination, as calculated estimated weighted-average Certain Hot-Rolled Steel Flat Products amended by the Amended Final dumping margins of 6.27 percent for From Turkey: Notice of Court Decision Determination, to the CIT. On March 22, C¸olakog˘lu, and 5.79 percent for all other Not in Harmony With the Amended 2018, the CIT remanded the Amended Final Determination in the Less-Than- Final Determination for Commerce to 4 See Eregli Demir ve Celik Fabrikalari T.A.S. v. Fair-Value Investigation; Notice of United States, 308 F. Supp. 3d 1297 (CIT 2018). explain or reconsider: (1) Its treatment 5 See Eregli Demir ve Celik Fabrikalari T.A.S., et Amended Final Determination, al. v. United States, Consol. Ct. No. 16–00218, Slip Amended Antidumping Duty Order; 1 See Certain Hot-Rolled Steel Flat Products from Op. 18–27 Final Results of Redetermination Notice of Revocation of Antidumping the Republic of Turkey: Final Determination of Pursuant to Remand, dated July 20, 2018 (First Duty Order in Part; and Sales at Less Than Fair Value, 81 FR 53428 (August Redetermination). Discontinuation of the 2017–18 and 12, 2016) (Final Determination), and accompanying 6 See First Redetermination at 16. Issues and Decision Memorandum. 7 See Eregli Demir ve Celik Fabrikalari T.A.S. v. 2018–19 Antidumping Duty 2 See Certain Hot-Rolled Steel Flat Products from United States, 357 F. Supp. 3d 1325 (CIT 2018) Administrative Reviews, in Part Australia, Brazil, Japan, the Republic of Korea, the (Second Remand Order). Netherlands, the Republic of Turkey, and the 8 See Second Remand Order at 16; see also Eregli AGENCY: Enforcement and Compliance, United Kingdom: Amended Final Affirmative Demir ve Celik Fabrikalari T.A.S. v. United States, International Trade Administration, Antidumping Determinations for Australia, the Consol. Ct. No. 16–00218, Slip Op. 18–180 Final Department of Commerce. Republic of Korea, and the Republic of Turkey and Results of Redetermination Pursuant to Second Antidumping Duty Orders, 81 FR 67962 (October 3, Court Remand, dated June 3, 2019 (Second SUMMARY: On April 13, 2020, the U.S. 2016) (Amended Final Determination and Order). Redetermination) at 5, 13–16. Court of International Trade (CIT) 3 Id., 81 FR at 67965. 9 Id. at 16.

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producers and exporters of subject is published in fulfillment of the ten days after the CIT’s final decision) merchandise.10 publication requirements of Timken and at a cash deposit rate of 0.00 percent.23 On October 29, 2019, in its Third section 516A of the Act. Remand Order, the CIT ordered Discontinued Administrative Reviews Commerce to recalculate normal value Amended Final Determination As a result of C¸olakog˘lu’s exclusion without making a circumstance of sale Because there is now a final court from the Order, Commerce is adjustment related to the duty drawback decision, Commerce is amending its discontinuing the ongoing 2017–18 and 11 adjustment made to U.S. price. On Amended Final Determination. The 2018–19 administrative reviews, in part, 24 January 27, 2020, in the third results of revised estimated weighted-average with respect to C¸olakog˘lu. Further, redetermination, Commerce did not dumping margins for the period of Commerce will not initiate a subsequent make a circumstance of sale adjustment investigation July 1, 2014 through June administrative review of entries of to normal value to reflect the difference 30, 2015 are as follows: subject merchandise both produced and between the amount of import duties exported by C¸olakog˘lu pursuant to the reflected in C¸olakog˘lu’s reported costs Weighted- Order.25 of production and the amount of import average duties that the Court directed Commerce Exporter or producer dumping Cash Deposit Requirements for Erdemir to recognize as the basis for a duty margin and All Other Producers and Exporters (percent) drawback adjustment to U.S. price.12 In Because Erdemir does not have a addition, Commerce corrected the unit C¸ olakog˘lu Metalurji A.S. and superseding cash deposit rate, i.e., there of currency that C¸olakog˘lu used to C¸ olakog˘lu Dis Ticaret A.S...... 0.00 have been no final results published in report its U.S. duty drawback amount.13 Eregli Demir ve Celik Fabrikalari a subsequent administrative review for As a result of the changes to our duty T.A.S. and Iskenderun Demir Erdemir, Commerce will instruct CBP to drawback methodology in the Third Ve Celik ...... 2.73 18 collect a cash deposit for estimated Redetermination, Commerce calculated All Others ...... 2.73 19 antidumping duties at ad valorem rates estimated weighted-average dumping equal to the estimated weighted-average margins of 0.00 percent for C¸olakog˘lu, Amended Antidumping Duty Order dumping margins listed above for and 2.73 percent for all other producers Erdemir and all other producers and Pursuant to section 735(a)(4) of the and exporters of subject merchandise.14 exporters of the subject merchandise, Act, Commerce ‘‘shall disregard any effective April 23, 2020. Entries of Timken Notice weighted average dumping margin that subject merchandise for all-other 15 is de minimis as defined in section In its decision in Timken, as producers and exporters include entries 16 733(b)(3) of the Act.’’ 20 As a result of clarified by Diamond Sawblades, the of subject merchandise not both this amended final determination, in Court of Appeals for the Federal Circuit produced and exported by C¸olakog˘lu which Commerce has calculated an held that, pursuant to section 516A of (i.e., produced by C¸olakog˘lu and estimated weighted-average dumping the Tariff Act of 1930, as amended (the exported by another party, or exported margin of 0.00 percent for C¸olakog˘lu, Act), Commerce must publish a notice by C¸olakog˘lu and produced by another Commerce is hereby excluding of court decision that is not ‘‘in party). harmony’’ with a Commerce merchandise produced and exported by determination and must suspend C¸olakog˘lu from the Order.21 This Liquidation of Suspended Entries for liquidation of entries pending a exclusion does not apply to C¸ olakog˘lu ‘‘conclusive’’ court decision. The CIT’s merchandise that is not both produced If the CIT’s final judgment is not 22 April 13, 2020 judgment constitutes a and exported by C¸olakog˘lu. appealed, or if appealed and upheld, final decision of the Court that is not in Continued Suspension of Entries for Commerce will instruct CBP to harmony with Commerce’s Amended C¸ olakog˘lu terminate the suspension of liquidation Final Determination.17 Thus, this notice Pursuant to Timken, the suspension 23 See, e.g., Drill Pipe from the People’s Republic 10 Id. of liquidation for entries of subject of China: Notice of Court Decision Not in Harmony 11 See Eregli Demir ve Celik Fabrikalari T.A.S. v. merchandise produced and exported by with International Trade Commission’s Injury Determination, Revocation of Antidumping and United States, 415 F. Supp. 3d 1216 (CIT 2019) C¸olakog˘lu will continue during the (Third Remand Order). Countervailing Duty Orders Pursuant to Court 12 See Eregli Demir ve Celik Fabrikalari T.A.S. v. pendency of the appeals process. Thus, Decision, and Discontinuation of Countervailing United States Consol. Ct. No. 16–00218, Slip Op. we will continue to instruct CBP to Duty Administrative Review, 79 FR 78037, 78038 19–135 (CIT October 29, 2019); see also Final suspend liquidation of all unliquidated (December 29, 2014) (Drill Pipe); see also High Pressure Steel Cylinders from the People’s Republic Results of Redetermination Pursuant to Third Court entries from C¸olakog˘lu that are entered, Remand, dated January 27, 2020 (Third of China: Notice of Court Decision Not in Harmony Redetermination) at 6. or withdrawn from warehouse, for With Final Determination in Less Than Fair Value Investigation, Notice of Amended Final 13 See Third Redetermination at 6. consumption after April 23, 2020 (i.e., Determination Pursuant to Court Decision, Notice of 14 Id. at 5. Revocation of Antidumping Duty Order in Part, and 15 See Timken Co. v. United States, 893 F.2d 337 based entirely on facts available, and as such Discontinuation of Fifth Antidumping Duty (Fed. Cir. 1990) (Timken). Erdemir’s rate is now the estimated weighted- Administrative Review, 82 FR 46758, 46760 16 See Diamond Sawblades Manufacturers average dumping margin for all other producers and (October 6, 2017). Coalition v. United States, 626 F.3d 1374 (Fed. Cir. exporters of subject merchandise. See 24 See Initiation of Antidumping and 2010) (Diamond Sawblades). Memorandum, ‘‘Redetermination Pursuant to Countervailing Duty Administrative Reviews, 83 FR 17 See Ereg˘li Demir ve C¸elik Fabrikalari T.A.S¸. v. Remand of Hot-Rolled Steel Products from the 63615 (December 11, 2018); see also Initiation of United States, Ct. No. 16–00218, Slip Op. 20–47 Republic of Turkey: Final Remand Calculation Antidumping and Countervailing Duty (CIT April 13, 2020). Memorandum for the ‘All-Others’ Rate,’’ dated Administrative Reviews, 84 FR 67712 (December 11, 18 See Second Redetermination at 16. January 27, 2020. 2019). 19 As explained in the Third Redetermination, 20 Section 733(b)(3) of the Act defines de minimis 25 See Drill Pipe, 79 FR at 78038; see also Certain because C¸olakog˘lu’s estimated weighted-average dumping margin as ‘‘less than 2 percent ad valorem Steel Nails from the United Arab Emirates: Notice dumping margin is now 0.00 percent, its rate is no or the equivalent specific rate for the subject of Court Decision Not in Harmony with the Final longer factored in the calculation of the all-others merchandise.’’ Determination and Amended Final Determination rate. Accordingly, the rate calculated for Erdemir is 21 See Third Redetermination at 7. of the Less Than Fair Value Investigation, 80 FR now the only rate that is not zero, de minimis or 22 Id. 77316 (December 14, 2015).

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and to liquidate entries produced and Stainless USA, LLC filed petitions the following criteria: (A) Merchandise exported by C¸olakog˘lu without regard to seeking the imposition of antidumping imported into the United States is of the antidumping duties. and countervailing duties on imports of same class or kind as any merchandise stainless sheet and strip from China.1 produced in a foreign country that is the Notification to Interested Parties Following Commerce’s affirmative subject of an antidumping or This notice is issued and published in determinations of dumping and countervailing duty order or finding, (B) accordance with sections 516A(c)(1) and countervailable subsidies,2 and the U.S. before importation into the United (e), 735(d), 736(a), 751(a) and 777(i) of International Trade Commission’s States, such imported merchandise is the Act. (USITC) finding of material injury,3 completed or assembled in another Dated: May 11, 2020. Commerce issued AD and CVD orders foreign country from merchandise Jeffrey I. Kessler, on imports of stainless sheet and strip which is subject to the order or from China.4 Assistant Secretary for Enforcement and merchandise which is produced in the foreign country that is subject to the Compliance. Scope of the Order order, (C) the process of assembly or [FR Doc. 2020–10491 Filed 5–14–20; 8:45 am] The products covered by the Orders completion in the foreign country BILLING CODE 3510–DS–P are stainless sheet and strip, whether in referred to in section (B) is minor or coils or straight lengths. For a full insignificant, (D) the value of the description of the scope of the Orders, DEPARTMENT OF COMMERCE merchandise produced in the foreign see the ‘‘Scope of the Orders,’’ in the country to which the AD or CVD order International Trade Administration Appendix to this notice. applies is a significant portion of the total value of the merchandise exported [A–570–042, C–570–043] Merchandise Subject to the Anti- Circumvention Inquiry to the United States, and (E) the administering authority determines that Stainless Steel Sheet and Strip From The anti-circumvention inquiry action is appropriate to prevent evasion the People’s Republic of China: covers stainless sheet and strip Initiation of Anti-Circumvention and of such order or finding. completed in Vietnam using certain In determining whether or not the Scope Inquiries on the Antidumping non-subject stainless steel flat-rolled Duty and Countervailing Duty Orders process of assembly or completion in a inputs of Chinese-origin that is third country is minor or insignificant subsequently exported from Vietnam to AGENCY: Enforcement and Compliance, under section 781(b)(1)(C) of the Act, the United States. International Trade Administration, section 781(b)(2) of the Act directs Department of Commerce. Initiation of Anti-Circumvention Commerce to consider: (A) The level of SUMMARY: Based on available Inquiry investment in the foreign country, (B) information, the Department of Section 781(b)(1) of the Tariff Act of the level of research and development Commerce (Commerce) is self-initiating 1930, as amended (the Act), provides in the foreign country, (C) the nature of a country-wide anti-circumvention that Commerce may find circumvention the production process in the foreign inquiry to determine whether imports of of an AD or CVD order when country, (D) the extent of production stainless steel sheet and strip (stainless merchandise of the same class or kind facilities in the foreign country, and (E) sheet and strip), completed in Vietnam subject to the order is completed or whether or not the value of processing using certain stainless steel flat-rolled assembled in a foreign country other performed in the foreign country inputs manufactured in the People’s than the country to which the order represents a small proportion of the Republic of China (China), are applies. In conducting anti- value of the merchandise imported into circumventing the antidumping duty circumvention inquiries, under section the United States. However, no single (AD) and countervailing duty (CVD) 781(b)(1) of the Act, Commerce relies on factor, by itself, controls Commerce’s orders on stainless sheet and strip from determination of whether the process of China (collectively, the Orders). 1 See Stainless Steel Sheet and Strip from the assembly or completion in a third Commerce is also self-initiating a scope People’s Republic of China: Initiation of Less-Than- country is minor or insignificant.5 Fair-Value Investigation, 81 FR 12711 (March 10, Accordingly, it is Commerce’s practice inquiry to determine whether stainless 2016); see also Stainless Steel Sheet and Strip from sheet and strip that is produced in the People’s Republic of China: Initiation of to evaluate each of these five factors as China and undergoes further processing Countervailing Duty Investigation, 81 FR 13322 they exist in the third country, in Vietnam before being exported to the (March 14, 2016). depending on the totality of the United States is subject to the Orders. 2 See Antidumping Duty Investigation of Stainless circumstances of the particular anti- Steel Sheet and Strip from the People’s Republic of 6 DATES: Applicable May 15, 2020. China: Final Determination of Sales at Less Than circumvention inquiry. Furthermore, section 781(b)(3) of the FOR FURTHER INFORMATION CONTACT: Fair Value and Final Affirmative Determination of Critical Circumstances, 82 FR 9716 (February 8, Act sets forth additional factors to Blaine Wiltse at (202) 482–6345, AD/ 2017); see also Countervailing Duty Investigation of consider in determining whether to CVD Operations, or Barb Rawdon at Stainless Steel Sheet and Strip from the People’s include merchandise assembled or (202) 482–0474, Office of Policy, Republic of China: Final Affirmative Determination, completed in a third country within the Enforcement and Compliance, and Final Affirmative Critical Circumstances Determination, in Part, 82 FR 9714 (February 8, scope of an antidumping and/or International Trade Administration, 2017). countervailing duty order. Specifically, U.S. Department of Commerce, 1401 3 See Stainless Steel Sheet and Strip from China; Commerce shall take into account such Constitution Avenue NW, Washington, Determinations, 82 FR 15716 (March 30, 2017); see DC 20230. also Stainless Steel Sheet and Strip from China, Inv. Nos. 791–TA–557 and 731–TA–1312, USITC 5 See Statement of Administrative Action SUPPLEMENTARY INFORMATION: Pub. 4676 (March 2017) (Final). accompanying the Uruguay Round Agreements Act 4 See Stainless Steel Sheet and Strip from the (SAA), H.R. Doc. No. 103–316 (1994) at 893. Background People’s Republic of China: Antidumping Duty 6 See Uncovered Innerspring Units from the On February 12, 2016, AK Steel Order, 82 FR 16160 (April 3, 2017) (AD Order); see People’s Republic of China: Final Affirmative Corporation, Allegheny Ludlum, LLC D/ also Stainless Steel Sheet and Strip from the Determination of Circumvention of the People’s Republic of China: Countervailing Duty Antidumping Duty Order, 83 FR 65626 (December B/A ATI Flat Rolled Products, North Order, 82 FR 16166 (April 3, 2017) (CVD Order) 21, 2018), and accompanying Issues and Decision American Stainless, and Outokumpu (collectively, Orders). Memorandum at 4.

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factors as: (A) The pattern of trade, stainless steel flat-rolled inputs being subject of these inquiries, and an including sourcing patterns; (B) whether processed into stainless sheet and strip. explanation of the reasons for the manufacturer or exporter of the A company’s failure to respond Commerce’s decision to initiate these merchandise is affiliated with the completely to Commerce’s requests for inquiries as provided above and in the person who, in the third country, uses information may result in the accompanying Initiation Memo. the merchandise to complete or application of partial or total facts Commerce will establish a schedule for assemble the merchandise which is available, pursuant to section 776(a) of questionnaires and comments on the subsequently imported into the United the Act, which may include adverse issues in these inquiries. States; and (C) whether imports of the inferences, pursuant to section 776(b) of In accordance with 19 CFR merchandise into the third country have the Act. 351.225(l)(2), if Commerce issues increased after the initiation of the preliminary affirmative determinations, Merchandise Subject to the Scope investigation that resulted in the we will then instruct U.S. Customs and Inquiry issuance of such order or finding. Border Protection to suspend We have analyzed the criteria above, The scope inquiry covers stainless liquidation and require a cash deposit of and from available information we sheet and strip of Chinese-origin that the estimated antidumping and determine pursuant to section 781(b) of has undergone further processing in countervailing duties, at the applicable the Act and 19 CFR 351.225(b) and (h), Vietnam (including but not limited to rate, for each unliquidated entry of the that initiation of an anti-circumvention cold-rolling, annealing, tempering, merchandise at issue, entered or inquiry is warranted to determine polishing, aluminizing, coating, withdrawn from warehouse for whether certain imports of stainless painting, varnishing, trimming, cutting, consumption on or after the date of sheet and strip, completed in Vietnam punching, and/or slitting, or any other initiation of these inquiries. Moreover, using certain stainless steel flat-rolled processing that would not otherwise in the event we issue preliminary inputs manufactured in China, are remove the merchandise from the scope affirmative determinations of circumventing the Orders. For a full of the Orders) that is subsequently circumvention, pursuant to section discussion of the basis for our decision exported to the United States. 781(b) of the act (Merchandise to initiate this anti-circumvention There is evidence of (a) possible Completed or Assembled in Other inquiry, see the Initiation Memo.7 As circumvention of the Orders pursuant to Foreign Countries), we intend to notify explained in the Initiation Memo, the section 781(b) of the Act through the the ITC, in accordance with section available information supports initiating completion of stainless sheet and strip 781(b)(1) of the Act and 19 CFR this anti-circumvention inquiry on a in Vietnam using inputs from China, 351.225(f)(7)(i)(B), if applicable. country-wide basis. Commerce has and (b) third-country processing in Commerce will, following taken this approach in prior anti- Vietnam of stainless sheet and strip consultation with interested parties, circumvention inquiries, where the facts from China that is subsequently establish a schedule for questionnaires supported initiation on a country-wide exported to the United States. and comments on the issues. In basis.8 Furthermore, the scope language states accordance with section 781(f) of the Consistent with the approach in the that stainless sheet and strip is subject Act and 19 CFR 351.225(f)(5), prior anti-circumvention inquiries that to the Orders even if it has undergone Commerce intends to issue its final were initiated on a country-wide basis, processing that would not otherwise scope and circumvention Commerce intends to issue remove the merchandise from the scope determinations within 120 days and 300 questionnaires to solicit information of the Orders if performed in the days, respectively, of the date of from producers and exporters in country of manufacture of the stainless publication of this initiation. Vietnam concerning their shipments of sheet and strip. Accordingly, the This notice is published in stainless sheet and strip to the United initiation of a scope inquiry is accordance with section 781(b) of the States and the origin of any imported warranted to determine whether Act and 19 CFR 351.225(f). stainless sheet and strip produced in Dated: May 11, 2020. 7 See Memorandum, ‘‘Stainless Steel Sheet and China that undergoes processing in Strip from the People’s Republic of China: Initiation Vietnam is subject to the Orders. For a Jeffrey I. Kessler, of Anti-Circumvention and Scope Inquiries on the discussion of the basis for our decision Assistant Secretary for Enforcement and Antidumping and Countervailing Duty Orders’’ to initiate this scope inquiry, see the Compliance. (Initiation Memo). This memo is a public document dated concurrently with, and hereby adopted by, Initiation Memo. Appendix this notice and on file electronically via ACCESS. Notification to Interested Parties Access to documents filed via ACCESS is also Scope of the Orders available in the Central Records Unit, Room B8024 In accordance with section 781(b) of The merchandise covered by the Orders is of the main Department of Commerce building. the Act and 19 CFR 351.225(b) and (h), stainless sheet and strip, whether in coils or 8 See, e.g., Corrosion-Resistant Steel Products straight lengths. Stainless steel is an alloy from the People’s Republic of China: Initiation of Commerce determines that available information supports initiating anti- steel containing, by weight, 1.2 percent or Anti-Circumvention Inquiries on the Antidumping less of carbon and 10.5 percent or more of Duty and Countervailing Duty Orders, 84 FR 43585 circumvention and scope inquiries to chromium, with or without other elements. (August 21, 2019); see also Steel Butt-Weld Pipe determine whether certain imports of Fittings from the People’s Republic of China: The subject sheet and strip is a flat-rolled Initiation of Anti-Circumvention Inquiry on the stainless sheet and strip are product with a width that is greater than 9.5 Antidumping Duty Order, 82 FR 40556, 40560 circumventing or subject to the Orders. mm and with a thickness of 0.3048 mm and (August 25, 2017) (stating at initiation that Accordingly, Commerce hereby notifies greater but less than 4.75 mm, and that is Commerce would evaluate the extent to which a all parties on Commerce’s scope service annealed or otherwise heat treated, and country-wide finding applicable to all exports pickled or otherwise descaled. The subject might be warranted); Certain Corrosion-Resistant list of the initiation of anti- circumvention and scope inquiries. In sheet and strip may also be further processed Steel Products from the People’s Republic of China: (e.g., cold-rolled, annealed, tempered, Initiation of Anti-Circumvention Inquiries on the addition, in accordance with 19 CFR polished, aluminized, coated, painted, Antidumping Duty and Countervailing Duty Orders, 351.225(f)(1)(i) and (ii), in this notice of 81 FR 79454, 79458 (November 14, 2016) (stating varnished, trimmed, cut, punched, or slit, at initiation that Commerce would evaluate the initiation issued under 19 CFR etc.) provided that it maintains the specific extent to which a country-wide finding applicable 351.225(b), we have included a dimensions of sheet and strip set forth above to all exports might be warranted). description of the products that are the following such processing. The products

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described include products regardless of description of the scope of this proceeding is Subsequent to the initiation of the shape, and include products of either dispositive. administrative review, the petitioner rectangular or non-rectangular cross-section [FR Doc. 2020–10490 Filed 5–14–20; 8:45 am] timely withdrew its request for eight of where such cross-section is achieved BILLING CODE 3510–DS–P the companies for which a review had subsequent to the rolling process, i.e., 4 products which have been ‘‘worked after been requested. No other party rolling’’ (e.g., products which have been requested an administrative review of beveled or rounded at the edges). DEPARTMENT OF COMMERCE these companies. Therefore, this For purposes of the width and thickness administrative review continues for the requirements referenced above: (1) Where the International Trade Administration two companies remaining under review, nominal and actual measurements vary, a [A–570–918] Shanghai Wells Hanger Co., Ltd. and product is within the scope if application of Hong Kong Wells Ltd. However, because either the nominal or actual measurement Steel Wire Garment Hangers From the we have previously found that Shanghai would place it within the scope based on the Wells Hanger Co., Ltd. and Hong Kong definitions set forth above; and (2) where the People’s Republic of China: width and thickness vary for a specific Preliminary Results of the Wells Ltd. are a single entity product (e.g., the thickness of certain Antidumping Duty Administrative (collectively, Shanghai Wells), Shanghai products with non-rectangular cross-section, Review and Rescission of Review in Wells remains the sole respondent in the width of certain products with non- Part; 2018–2019 this review.5 rectangular shape, etc.), the measurement at On January 2, 2020, Commerce issued its greatest width or thickness applies. AGENCY: Enforcement and Compliance, the standard non-market economy All products that meet the written physical International Trade Administration, (NME) questionnaire to Shanghai description, and in which the chemistry Department of Commerce. Wells.6 We confirmed that the quantities do not exceed any one of the noted SUMMARY: The Department of Commerce questionnaire was delivered to Shanghai element levels listed above, are within the (Commerce) preliminary determines Wells and that a company scope of the Orders unless specifically excluded. that Shanghai Wells Hanger Co., Ltd. representative received the 7 Subject merchandise includes stainless and Hong Kong Wells Ltd. are not questionnaire on January 6, 2020. sheet and strip that has been further eligible for a separate rate, and therefore Shanghai Wells did not respond to this processed in a third country, including but are part of the China-wide entity. questionnaire and has filed no not limited to cold-rolling, annealing, Commerce is also rescinding this submissions on the record of this tempering, polishing, aluminizing, coating, administrative review, in part, with painting, varnishing, trimming, cutting, respect to eight companies. Interested also Initiation of Antidumping and Countervailing punching, and/or slitting, or any other parties are invited to comment on these Duty Administrative Reviews, 85 FR 3014 (January 17, 2020) (which corrected the POR for this review). processing that would not otherwise remove preliminary results. the merchandise from the scope of the Orders In the Initiation Notice, we inadvertently included if performed in the country of manufacture DATES: Applicable May 15, 2020. a company named ‘‘Hong Kong Ltd.’’ Based on the Petitioner’s Review Request, the correct name of the of the stainless sheet and strip. FOR FURTHER INFORMATION CONTACT: company is Hong Kong Ltd. (USA). However, this Excluded from the scope of the Orders are Jasun Moy, AD/CVD Operations, Office company is an importer, rather than an exporter of the following: (1) Sheet and strip that is not V, Enforcement and Compliance, subject merchandise, and it is not under review. annealed or otherwise heat treated and not International Trade Administration, Therefore, we are correcting the Initiation Notice to clarify that this company is not under review. As pickled or otherwise descaled; (2) plate (i.e., U.S. Department of Commerce, 1401 flat-rolled stainless steel products of a such, only 10 companies are under review. thickness of 4.75 mm or more); and (3) flat Constitution Avenue NW, Washington, 4 See Petitioner’s Letter, ‘‘Administrative Review wire (i.e., cold-rolled sections, with a mill DC 20230; telephone: (202) 482–8194. of Steel Wire Garment Hangers from China- Petitioner’s Withdrawal of Review Requests for SUPPLEMENTARY INFORMATION edge, rectangular in shape, of a width of not : Specific Companies,’’ dated January 8, 2020 more than 9.5 mm). Background (Petitioner’s Withdrawal Letter). The products under the Orders are 5 Commerce found that Shanghai Wells Hanger currently classifiable under Harmonized On October 1, 2019, Commerce Co., Ltd., Hong Kong Wells Ltd., and Hong Kong Tariff Schedule of the United States (HTSUS) published in the Federal Register a Ltd. (USA) are affiliated and that Shanghai Wells subheadings 7219.13.0031, 7219.13.0051, notice of opportunity to request an Hanger Co. Ltd. and Hong Kong Wells Ltd. are a 7219.13.0071, 7219.13.0081, 7219.14.0030, single entity. Because there were no changes to the 7219.14.0065, 7219.14.0090, 7219.23.0030, administrative review of the facts that supported that decision since that 7219.23.0060, 7219.24.0030, 7219.24.0060, antidumping duty (AD) order on steel determination was made, we continue to find that wire garment hangers from the People’s these companies are affiliated and that Shanghai 7219.32.0005, 7219.32.0020, 7219.32.0025, Wells Hanger Co. Ltd. and Hong Kong Wells 7219.32.0035, 7219.32.0036, 7219.32.0038, Republic of China (China) for the period comprise a single entity for this administrative 7219.32.0042, 7219.32.0044, 7219.32.0045, of review (POR) October 1, 2018 through review. See Steel Wire Garment Hangers from the 7219.32.0060, 7219.33.0005, 7219.33.0020, September 30, 2019.1 Pursuant to a People’s Republic of China: Preliminary Results and 7219.33.0025, 7219.33.0035, 7219.33.0036, request from M&B Metal Products Co., Preliminary Rescission, in Part, of the First 7219.33.0038, 7219.33.0042, 7219.33.0044, 2 Antidumping Duty Administrative Review, 75 FR Inc. (the petitioner), Commerce 68758, 68759 (November 9, 2010), unchanged in 7219.33.0045, 7219.33.0070, 7219.33.0080, initiated an administrative review with 7219.34.0005, 7219.34.0020, 7219.34.0025, First Administrative Review of Steel Wire Garment respect to 11 companies, in accordance Hangers from the People’s Republic of China: Final 7219.34.0030, 7219.34.0035, 7219.34.0050, Results and Final Partial Rescission of 7219.35.0005, 7219.35.0015, 7219.35.0030, with section 751(a) of the Tariff Act of 3 Antidumping Duty Administrative Review, 76 FR 7219.35.0035, 7219.35.0050, 7219.90.0010, 1930, as amended (the Act). 27994, 27995 (May 13, 2011); see also Steel Wire 7219.90.0020, 7219.90.0025, 7219.90.0060, Garment Hangers from the People’s Republic of 7219.90.0080, 7220.12.1000, 7220.12.5000, 1 See Antidumping or Countervailing Duty Order, China: Final Results of Antidumping Duty 7220.20.1010, 7220.20.1015, 7220.20.1060, Finding, or Suspended Investigation; Opportunity Administrative Review, 2016–2017, 83 FR 53449 7220.20.1080, 7220.20.6005, 7220.20.6010, to Request Administrative Review, 84 FR 52068 (October 23, 2018). 7220.20.6015, 7220.20.6060, 7220.20.6080, (October 1, 2019). 6 See Commerce’s Letter, ‘‘Antidumping Duty 2 7220.20.7005, 7220.20.7010, 7220.20.7015, See Petitioner’s Letter, ‘‘Steel Wire Garment Administrative Review of Steel Wire Garment Hangers from China: Petitioner’s Request for Hangers from the People’s Republic of China: Non- 7220.20.7060, 7220.20.7080, 7220.90.0010, Administrative Review,’’ dated October 25, 2019 Market Economy Questionnaire,’’ dated January 2, 7220.90.0015, 7220.90.0060, and (Petitioner’s Review Request). 2020. 7220.90.0080. Although the HTSUS 3 See Initiation of Antidumping and 7 See Memorandum, ‘‘Initial Antidumping Duty subheadings are provided for convenience Countervailing Duty Administrative Reviews, 84 FR Questionnaire Delivery Confirmation,’’ dated and customs purposes, the written 67712 (December 11, 2019) (Initiation Notice); see January 6, 2020.

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administrative review, including (HTSUS) subheadings 7326.20.0020, access.trade.gov. Rebuttal briefs, limited information concerning its eligibility for 7323.99.9060, and 7323.99.9080. to issues raised in the case briefs, must a separate rate. Although the HTSUS subheadings are be filed within seven days after the time On April 24, 2020, Commerce tolled provided for convenience and customs limit for filing case briefs.13 Parties who all deadlines in administrative reviews purposes, the written description of the submit case or rebuttal briefs in this by 50 days, thereby extending the merchandise is dispositive. proceeding are requested to submit with deadline for these results until August each argument a statement of the issue, China-Wide Entity 21, 2020.8 a brief summary of the argument, and a Commerce’s policy regarding table of authorities.14 Note that Partial Rescission of Administrative conditional review of the China-wide Review Commerce has temporarily modified entity applies to this administrative certain of its requirements for serving Pursuant to 19 CFR 351.213(d)(1), review.10 Under this policy, the China- documents containing business Commerce will rescind an wide entity will not be under review proprietary information, until May 19, administrative review, in whole or in unless a party specifically requests, or 2020, unless extended.15 part, if the party that requested the Commerce self-initiates, a review of the Interested parties who wish to request review withdraws the request within 90 China-wide entity.11 Because no party a hearing, or to participate if one is days of the date of publication of the requested a review of the China-wide requested, must submit a written notice of initiation. The request for an entity in this review, the China-wide request to Commerce within 30 days of administrative review of the following entity is not under review and the the date of publication of this notice.16 companies was withdrawn within 90 weighted-average dumping margin for Hearing requests should contain: (1) The days of the date of publication of the the China-wide entity is not subject to party’s name, address, telephone Initiation Notice: Hangzhou Qingqing change (i.e., 187.25 percent).12 number; (2) the number of participants; Mechanical Co., Ltd., Hangzhou Preliminary Results of Review and (3) a list of issues to be discussed. Yingqing Material Co., Ltd., Shaoxing Issues raised in the hearing will be Dingli Metal Clotheshorse, Shaoxing Because Shanghai Wells is not eligible limited to those raised in the respective Lishi Metal Products Co., Ltd., Shaoxing for a separate rate, Commerce case and rebuttal briefs. If a request for Maosheng Metal Products Co., Ltd., preliminarily finds that Shanghai Wells a hearing is made, parties will be Shaoxing Shunji Metal Clotheshorse is part of the China-wide entity. As notified of the time and date for the Co., Ltd., Shaoxing Yongnuo Metal discussed above, the weighted-average hearing to be held at the U.S. Products Co., Ltd., and Zhejiang Lucky dumping margin for the China-wide rate Department of Commerce, 1401 Cloud Hanger Co., Ltd.9 Because we continues to be 187.25 percent. Constitution Avenue NW, Washington, received no other requests for review of Disclosure DC 20230.17 these companies, Commerce is rescinding this administrative review of Normally, Commerce discloses to Final Results of Review the AD order on steel wire garment interested parties the calculations Unless otherwise extended, hangers, in part, with respect to these performed in connection with the Commerce intends to issue the final eight companies. The instant review preliminary results of an administrative results of this administrative review, will continue with respect to Shanghai review within five business days after which will include the results of its Wells. public announcement of the preliminary analysis of all issues raised in the case results of review in accordance with 19 Scope of the Order briefs, within 120 days of the CFR 351.224(b). Because Commerce publication of these preliminary results, The merchandise that is subject to the preliminary denied the separate rate pursuant to section 751(a)(3)(A) of the order is steel wire garment hangers, eligibility for the sole mandatory Act and 19 CFR 351.213(h)(1). fabricated from carbon steel wire, respondent in this review and treated it whether or not galvanized or painted, as part of the China-wide entity, there Assessment of Antidumping Duties whether or not coated with latex or are no calculations to disclose. Upon issuance of the final results of epoxy or similar gripping materials, Public Comment this review, Commerce will determine, and/or whether or not fashioned with and U.S. Customs and Border Protection paper covers or capes (with or without Pursuant to 19 CFR 351.309(c), (CBP) shall assess, antidumping duties printing) and/or nonslip features such interested parties are invited to on all appropriate entries of subject as saddles or tubes. These products may comment on these preliminary results, merchandise covered by this review.18 If also be referred to by a commercial and may submit case briefs and/or the preliminary results are unchanged designation, such as shirt, suit, strut, written comments, filed electronically for the final results, we will instruct caped, or latex (industrial) hangers. via Enforcement and Compliance’s CBP to apply an ad valorem assessment Specifically excluded from the scope of Antidumping and Countervailing Duty rate of 187.25 percent to all entries of the order are wooden, plastic, and other Centralized Electronic Service System subject merchandise during the POR garment hangers that are not made of (ACCESS) within 30 days after the date which were exported by Shanghai steel wire. Also excluded from the scope of publication of these preliminary Wells. of the order are chrome-plated steel wire results of review. ACCESS is available Commerce intends to issue garment hangers with a diameter of 3.4 to registered users at http:// assessment instructions to CBP 15 days mm or greater. The products subject to after the date of publication of the final the order are currently classified under 10 See Antidumping Proceedings: Announcement of Change in Department Practice for Respondent 13 Harmonized Tariff Schedule U.S. Selection in Antidumping Duty Proceedings and See 19 CFR 351.309(d)(1)–(2). Conditional Review of the Nonmarket Economy 14 See 19 CFR 351.309(c)(2) and 351.309(d)(2). 8 See Memorandum, ‘‘Tolling of Deadlines for Entity in NME Antidumping Duty Proceedings, 78 15 See Temporary Rule Modifying AD/CVD Antidumping and Countervailing Duty FR 65963 (November 4, 2013). Service Requirements Due to COVID–19, 85 FR Administrative Reviews in Response to Operational 11 Id. 17006 (March 26, 2020). Adjustments Due to COVID–19,’’ dated April 24, 12 See Notice of Antidumping Duty Order: Steel 16 See 19 CFR 351.310(c). 2020. Wire Garment Hangers from the People’s Republic 17 See 19 CFR 351.310(d). 9 See Petitioner’s Withdrawal Letter. of China, 73 FR 58111 (October 6, 2008). 18 See 19 CFR 351.212(b)(1).

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results of this review in the Federal Dated: May 1, 2020. essential marine information that cannot Register.19 Jeffrey I. Kessler, be shown graphically on the charts and Assistant Secretary for Enforcement and are not readily available elsewhere. Cash Deposit Requirements Compliance. Subjects include, but are not limited to, The following cash deposit [FR Doc. 2020–10453 Filed 5–14–20; 8:45 am] channel descriptions, anchorages, requirements will be effective upon BILLING CODE 3510–DS–P bridge and cable clearances, tides and publication of the final results of this tidal currents, prominent features, administrative review for shipments of pilotage, towage, weather, ice DEPARTMENT OF COMMERCE the subject merchandise from China conditions, wharf descriptions, dangers, routes, traffic separation schemes, small entered, or withdrawn from warehouse, National Oceanic and Atmospheric craft facilities and Federal Regulations for consumption on or after the Administration applicable to navigation. publication date of this notice, as The marine environment and provided by section 751(a)(2)(C) of the Agency Information Collection shorelines are constantly changing. Act: (1) For previously investigated or Activities; Submission to the Office of NOAA makes every effort to update reviewed Chinese and non-Chinese Management and Budget (OMB) for information portrayed in charts and exporters of subject merchandise not Review and Approval; Comment described in the Coast Pilot. Sources of listed above that continue to be eligible Request; Nautical Discrepancy information include, but are not limited for a separate rate based on a completed Reporting System to: Pilot associations, shipping prior segment of this proceeding, the The Department of Commerce will companies, towboat operators, state cash deposit rate will continue to be submit the following information marine authorities, city marine that existing cash deposit rate published collection request to the Office of authorities, local port authorities, for the most recently completed period; Management and Budget (OMB) for marine operators, hydrographic research (2) for all Chinese exporters of subject review and clearance in accordance vessels, naval vessels, Coast Guard merchandise that have not been found with the Paperwork Reduction Act of cutters, merchant vessels, fishing to be entitled to a separate rate, 1995, on or after the date of publication vessels, pleasure boats, U.S. Power including Shanghai Wells, the cash of this notice. We invite the general Squadron Units, U.S. Coast Guard deposit rate will be 187.25 percent, the public and other Federal agencies to Auxiliary Units, and the U.S. Army weighted-average dumping margin for comment on proposed, and continuing Corps of Engineers. the China-wide entity from the less- information collections, which helps us The purpose of NOAA’s Nautical than-fair-value investigation; and (3) for assess the impact of our information Discrepancy Reporting System is to offer all non-Chinese exporters of subject collection requirements and minimize a formal, standardized instrument for merchandise which have not received the public’s reporting burden. Public recommending changes, corrections, their own separate rate, the cash deposit comments were previously requested and updates to nautical charts and the rate will be the rate applicable to the via the Federal Register on January 15, Coast Pilot, and to monitor and Chinese exporter that supplied that non- 2020, during a 60-day comment period. document the accepted changes. Coast Chinese exporter. This notice allows for an additional 30 Survey solicits information through the stakeholder engagement and feedback These cash deposit requirements, days for public comments. tool ASSIST (https:// when imposed, shall remain in effect Agency: National Oceanic and www.nauticalcharts.noaa.gov/customer- until further notice. Atmospheric Administration. Title: Nautical Discrepancy Reporting service/assist/). Notification to Importers System. Coast Survey is proposing to add a OMB Control Number: 0648–0007. Citizen Science component to the This notice serves as a preliminary Form Number(s): None. collection, which would allow boating reminder to importers of their Type of Request: Regular submission groups or individuals to submit reports responsibility under 19 CFR (revision and extension of an existing to update the charts. Adding the Citizen 351.402(f)(2) to file a certificate collection). Science component to the collection regarding the reimbursement of any Number of Respondents: 905. method will benefit Coast Survey by antidumping duties prior to liquidation Average Hours per Response: ASSIST allowing the public to ‘‘adopt’’ a of the relevant entries during this entry: 10 min; Citizen Science Chart product or part of a product and provide review period. Failure to comply with Update: 30 minutes. annual data updates that directly affect this requirement could result in the Total Annual Burden Hours: 680. that product or products. Data obtained presumption that reimbursement of the Needs and Uses: NOAA’s Office of through these systems is used to update antidumping duties occurred and the Coast Survey is the nation’s nautical U.S. nautical charts and the United subsequent assessment of double chart maker, maintaining and updating States Coast Pilot. antidumping duties. over a thousand charts covering the 3.5 Affected Public: Business or other for million square nautical miles of coastal profit; individuals or households; not Notification to Interested Parties waters in the U.S. Exclusive Economic for- profit institutions; federal government; state, local or tribal These preliminary results and partial Zone and the Great Lakes. The marine government. rescission of administrative review are transportation system relies on charting accuracy and precision to keep Frequency: Annual and periodic. issued and published in accordance navigation safe and coastal communities Respondent’s Obligation: Voluntary. with sections 751(a)(1) and 777(i)(l) of protected from environmental disasters Legal Authority: None. the Act, and 19 CFR 351.213(h)(1). at sea. This information collection request Coast Survey also writes and may be viewed at www.reginfo.gov. 19 For a full discussion of this practice, see Non- publishes the United States Coast Follow the instructions to view the Market Economy Antidumping Proceedings: ® Assessment of Antidumping Duties, 76 FR 65694 Pilot , a series of nine nautical books Department of Commerce collections (October 24, 2011). that supplement nautical charts with currently under review by OMB.

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Written comments and recommendations, the Advisory Panel DATES: The OEAP public virtual meeting recommendations for the proposed and Committee will choose preferred will be held on June 3, 2020, from 12 information collection should be alternatives to recommend to the p.m. to 2 p.m., and June 4, 2020, from submitted within 30 days of the Council at the June 23–25 meeting. They 12 p.m. to 2 p.m. All meetings will be publication of this notice on the will also give a brief review of NROC/ at Eastern Day Time. following website www.reginfo.gov/ MARCO/RODA fishery dependent data ADDRESSES: You may join the OEAP public/do/PRAMain. Find this project by Dr. Fiona Hogan and request public virtual meeting (via particular information collection by for feedback. Other business will be GoToMeeting) from a computer, tablet selecting ‘‘Currently under 30-day discussed if necessary. or smartphone by entering the following Review—Open for Public Comments’’ or Although non-emergency issues not address: by using the search function and contained on the agenda may come entering either the title of the collection before this Council for discussion, those Wednesday, June 3, 2020, 12 p.m.–2 or the OMB Control Number 0648–0007. issues may not be the subject of formal p.m. (EDT) action during this meeting. Council https://global.gotomeeting.com/join/ Sheleen Dumas, action will be restricted to those issues 309752413. Department PRA Clearance Officer, Office of specifically listed in this notice and any You can also dial in using your the Chief Information Officer, Commerce Department. issues arising after publication of this phone. notice that require emergency action [FR Doc. 2020–10464 Filed 5–14–20; 8:45 am] United States: +1 (224) 501–3412 under section 305(c) of the Magnuson- Access Code: 309–752–413 BILLING CODE 3510–JE–P Stevens Act, provided the public has Get the app now and be ready when been notified of the Council’s intent to your first meeting starts: https:// DEPARTMENT OF COMMERCE take final action to address the global.gotomeeting.com/install/ emergency. The public also should be 309752413. aware that the meeting will be recorded. National Oceanic and Atmospheric Thursday, June 4, 2020, 12 p.m.–2 p.m. Administration Consistent with 16 U.S.C. 1852, a copy of the recording is available upon (EDT) [RTID 0648–XA182] request. Please join the meeting from your computer, tablet or smartphone. https:// New England Fishery Management Special Accommodations Council; Public Meeting global.gotomeeting.com/join/ This meeting is physically accessible 359344597. AGENCY: National Marine Fisheries to people with disabilities. Requests for You can also dial in using your Service (NMFS), National Oceanic and sign language interpretation or other phone. Atmospheric Administration (NOAA), auxiliary aids should be directed to United States: +1 (646) 749–3112 Commerce. Thomas A. Nies, Executive Director, at Access Code: 359–344–597 ACTION: Notice of public meeting. (978) 465–0492, at least 5 days prior to Please join the meeting from your the meeting date. computer, tablet or smartphone: https:// SUMMARY: The New England Fishery Authority: 16 U.S.C. 1801 et seq. global.gotomeeting.com/install/ Management Council (Council) is 359344597. scheduling a joint public meeting of its Dated: May 12, 2020. Whiting Committee and Advisory Panel Tracey L. Thompson, FOR FURTHER INFORMATION CONTACT: via webinar to consider actions affecting Acting Deputy Director, Office of Sustainable Miguel Rolo´n, Executive Director, New England fisheries in the exclusive Fisheries, National Marine Fisheries Service. Caribbean Fishery Management Council, economic zone (EEZ). [FR Doc. 2020–10446 Filed 5–14–20; 8:45 am] 270 Mun˜ oz Rivera Avenue, Suite 401, San Juan, Puerto Rico 00918–1903, Recommendations from this group will BILLING CODE 3510–22–P be brought to the full Council for formal telephone: (787) 398–3717. consideration and action, if appropriate. SUPPLEMENTARY INFORMATION: The DATES: This webinar will be held on DEPARTMENT OF COMMERCE following items included in the tentative agenda will be discussed: Thursday, June 4, 2020 at 9.30 a.m. National Oceanic and Atmospheric Webinar registration URL information: Administration Wednesday, June 3, 2020, 12 p.m.–1 https://attendee.gotowebinar.com/ p.m. register/2250524786943419917. [RIN 0648–XA178] —Call to Order ADDRESSES: Council address: New Caribbean Fishery Management —Adoption of Agenda England Fishery Management Council, Council; Public Meeting —OEAP Chairperson’s Report 50 Water Street, Mill 2, Newburyport, —CFMC Arrangements for Virtual MA 01950. AGENCY: National Marine Fisheries Meetings FOR FURTHER INFORMATION CONTACT: Service (NMFS), National Oceanic and —Fishers’ Initiatives to Cope with Thomas A. Nies, Executive Director, Atmospheric Administration (NOAA), COVID–19 Scenario New England Fishery Management Commerce. —USVI Activities Council; telephone: (978) 465–0492. ACTION: Notice of a public meeting. —Fishery Ecosystem Based SUPPLEMENTARY INFORMATION: Management Plan (FEBMP) SUMMARY: The Caribbean Fishery —EBFMTAP Agenda Management Council’s (Council) —Outreach & Education Initiatives for The Whiting Committee and Advisory Outreach and Education Advisory Panel Fishers and Consumers Panel will present impact analyses on (OEAP) will hold a two-day public the proposed alternatives for the virtual meeting to address the items Wednesday, June 3, 2020, 1:10 p.m.–2 southern red hake rebuilding framework contained in the tentative agenda p.m. action. After receiving the Plan included in the SUPPLEMENTARY —Responsible Seafood Consumption Development Teams analyses and INFORMATION. Campaign

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Thursday, June 4, 2020, 12 p.m.–1 p.m. the public’s reporting burden. Public grammatical or typographical —Update on Five-Year Strategic Plan— comments were previously requested corrections, clarifications of definitions Michelle Duval via the Federal Register on February 27, and meaning, or more substantial —Island-Based Fisheries Management 2020, during a 60-day comment period. changes to the hierarchy within Plans (IBFMPs) This notice allows for an additional 30 components. The CMECS —2021 Calendar days for public comments. Implementation Group, through the Agency: National Oceanic & Thursday, June 4, 2020, 1:10 p.m.–2 Office for Coastal Management, has Atmospheric Administration. determined it is necessary to initiate the p.m. Title: Coastal and Marine Ecological dynamic standard process to revise the Classification Standard Solicitation for —CFMC Facebook and Instagram CMECS. We are soliciting Revisions. Communications with Stakeholders recommendations for revisions to the —PEPCO OMB Control Number: 0648–XXXX. —Other Business Form Number(s): None. CMECS through a form to be posted on The order of business may be adjusted Type of Request: Regular submission the CMECS website. All as necessary to accommodate the (new information collection). recommendations collected will be completion of agenda items. The Number of Respondents: 100. reviewed and revisions will be made to meeting will begin on June 3, 2020, at Average Hours per Response: 1. the CMECS to reflect those 12 p.m. EDT, and will end on June 4, Total Annual Burden Hours: 100. recommendations found to be valuable 2020, at 2 p.m. EDT. Other than the start Needs and Uses: NOAA’s Office of for implementation of the CMECS and time, interested parties should be aware Coastal Management (OCM) is supportive of the user community proposing a new information collection that discussions may start earlier or later needs. than indicated, at the discretion of the that will allow interested parties to submit requests for revisions to update Affected Public: Coastal scientists and Chair. In addition, the meeting may be managers throughout the United States completed prior to the date established the Coastal and Marine Ecological responsible for characterization of in this notice. Classification Standard (CMECS). CMECS was approved by the Federal coastal and marine habitats or Special Accommodations Geographic Data Committee (FGDC) in ecosystems more broadly. This may For any additional information on this August 2012 and provides a national include academia; non-governmental public virtual meeting, please contact standard for consistent descriptions of organizations; State, Local or Tribal Diana Martino, Caribbean Fishery coastal and marine ecological features. government; Federal government; and Management Council, 270 Mun˜ oz The primary uses of CMECS are in for profit environmental support Rivera Avenue, Suite 401, San Juan, mapping and classifying the geological, businesses. physical, biological, and chemical Puerto Rico, 00918–1903, telephone: Frequency: On occasion. (787) 226–8849. components of the environment. Among other applications, the CMECS Respondent’s Obligation: Voluntary. Authority: 16 U.S.C. 1801 et seq. framework can be used to integrate data Legal Authority: Dated: May 12, 2020. from disparate sources, facilitate This information collection request Tracey L. Thompson, comparisons among sites, and organize may be viewed at www.reginfo.gov. Acting Deputy Director, Office of Sustainable data for regional assessment. Since its Follow the instructions to view the Fisheries, National Marine Fisheries Service. publication in 2012, the CMECS has Department of Commerce collections [FR Doc. 2020–10445 Filed 5–14–20; 8:45 am] been used to characterize habitats currently under review by OMB. BILLING CODE 3510–22–P ranging from coastal wetlands and estuaries to the deep ocean and at local Written comments and to global scales. Benefits of CMECS recommendations for the proposed DEPARTMENT OF COMMERCE include: Data collected by different information collection should be sensors and methods can be integrated submitted within 30 days of the National Oceanic and Atmospheric into a single database; all the physical, publication of this notice on the Administration biological, and chemical-forcing following website www.reginfo.gov/ Agency Information Collection functions that collectively determine a public/do/PRAMain. Find this Activities; Submission to the Office of habitat type can be captured; and the particular information collection by Management and Budget (OMB) for system has the flexibility to selecting ‘‘Currently under 30-day Review and Approval; Comment accommodate new units as additional Review—Open for Public Comments’’ or Request; Coastal and Marine information becomes available. by using the search function and The CMECS was developed as a Ecological Classification Standard entering the title of the collection. Solicitation for Revisions dynamic standard to allow periodic revisions to continue to meet the needs Sheleen Dumas, The Department of Commerce will of the user community and as such, the Department PRA Clearance Officer, Office of submit the following information CMECS can be updated to accommodate the Chief Information Officer, Commerce collection request to the Office of the requirements of evolving scientific Department. Management and Budget (OMB) for practices, technology, and coastal and [FR Doc. 2020–10469 Filed 5–14–20; 8:45 am] review and clearance in accordance marine resource management. The BILLING CODE 3510–JE–P with the Paperwork Reduction Act of review process allows the CMECS to 1995, on or after the date of publication retain its consistency, credibility, and of this notice. We invite the general rigor through periodic reviews and an public and other Federal agencies to orderly, authoritative, and transparent comment on proposed, and continuing updating process as required by the information collections, which helps us Federal Geographic Data Committee. assess the impact of our information Anyone can propose changes, which collection requirements and minimize can include minor edits, such as

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DEPARTMENT OF COMMERCE research and monitoring needs. The DEPARTMENT OF COMMERCE assessment is independently peer National Oceanic and Atmospheric reviewed at the Review Workshop. The National Oceanic and Atmospheric Administration product of the Review Workshop is a Administration [RTID 0648–XA161] Summary documenting panel opinions regarding the strengths and weaknesses Agency Information Collection Fisheries of the Atlantic; Southeast of the stock assessment and input data. Activities; Submission to the Office of Data, Assessment, and Review Participants for SEDAR Workshops are Management and Budget (OMB) for (SEDAR); Public Meeting appointed by the Gulf of Mexico, South Review and Approval; Comment Atlantic, and Caribbean Fishery Request; Southeast Region Individual AGENCY: National Marine Fisheries Management Councils and NOAA Fishing Quota Programs Service (NMFS), National Oceanic and Fisheries Southeast Regional Office, The Department of Commerce will Atmospheric Administration (NOAA), Highly Migratory Species Management Commerce. submit the following information Division, and Southeast Fisheries collection request to the Office of ACTION: Notice of public meeting. Science Center. Participants include: Management and Budget (OMB) for Data collectors and database managers; SUMMARY: review and clearance in accordance The SEDAR 65 assessment of stock assessment scientists, biologists, the Atlantic stock of Blacktip Shark will with the Paperwork Reduction Act of and researchers; constituency 1995, on or after the date of publication consist of a series of workshops and representatives including fishermen, webinars: Data Workshop; Assessment of this notice. We invite the general environmentalists, and non- public and other Federal agencies to Webinars; and a Review workshop. governmental organizations (NGOs); DATES: The SEDAR 65 Assessment comment on proposed, and continuing international experts; and staff of information collections, which helps us Webinar IV for Highly Migratory Councils, Commissions, and state and Species Atlantic Blacktip Shark has assess the impact of our information federal agencies. collection requirements and minimize been scheduled for June 4, 2020, from The items of discussion at the 1 p.m. until 4 p.m., EDT. the public’s reporting burden. Public Assessment Webinar IV are as follows: comments were previously requested ADDRESSES: The meeting will be held • Finalize reference case model run(s) via the Federal Register on February 24, via webinar. The webinar is open to which are robust to the major 2020, during a 60-day comment period. members of the public. Registration is uncertainties identified in commercial This notice allows for an additional 30 available online at: https:// bycatch discard estimation (and post- days for public comments. attendee.gotowebinar.com/register/ release mortality) as well as the major Agency: National Oceanic & 1446251822262877964. uncertainties identified in the indices of Atmospheric Administration. SEDAR address: South Atlantic abundance. Discuss sensitivity analyses, Title: Southeast Region Individual Fishery Management Council, 4055 model diagnostic methodology and Fishing Quota Programs. Faber Place Drive, Suite 201, N preliminary results for the reference OMB Control Number: 0648–0551. Charleston, SC 29405; case model run(s). Form Number(s): None. www.sedarweb.org. Although non-emergency issues not Type of Request: Regular submission FOR FURTHER INFORMATION CONTACT: contained in this agenda may come (Revision of a currently approved Kathleen Howington, SEDAR before this group for discussion, those collection). Coordinator, 4055 Faber Place Drive, issues may not be the subject of formal Number of Respondents: 1,164. Suite 201, North Charleston, SC 29405; action during this meeting. Action will Average Hours Per Response: phone: (843) 571–4366; email: be restricted to those issues specifically • Transfer Shares, 3 minutes [email protected]. identified in this notice and any issues • Share Receipt, 2 minutes arising after publication of this notice • SUPPLEMENTARY INFORMATION: The Gulf Account Update, 2 minutes that require emergency action under • of Mexico, South Atlantic, and Trip Ticket Update, 2 minutes section 305(c) of the Magnuson-Stevens • Transfer Allocation, 3 minutes Caribbean Fishery Management Fishery Conservation and Management • Landing Transaction Correction Councils, in conjunction with NOAA Act, provided the public has been Request, 5 minutes Fisheries and the Atlantic and Gulf notified of the intent to take final action • Dealer Cost Recovery Fee Submission States Marine Fisheries Commissions, to address the emergency. through pay.gov, 3 minutes have implemented the Southeast Data, • Commercial Reef Fish Landing Assessment and Review (SEDAR) Special Accommodations Location Request, 5 minutes process, a multi-step method for This meeting is accessible to people • Dealer Landing Transaction Report, 6 determining the status of fish stocks in with disabilities. Requests for auxiliary minutes (electronic form) the Southeast Region. SEDAR is a three- aids should be directed to the South • Dealer Landing Transaction Report, 5 step process including: (1) Data Atlantic Fishery Management Council minutes (paper form, catastrophic Workshop; (2) Assessment Process office (see ADDRESSES) at least 5 conditions only) utilizing webinars; and (3) Review business days prior to the meeting. • IFQ Notification of Landing, 5 Workshop. The product of the Data Note: The times and sequence minutes Workshop is a data report which specified in this agenda are subject to • Gulf Reef Fish Notification of compiles and evaluates potential change. Landing, 3 minutes datasets and recommends which • IFQ Close Account, 3 minutes Authority: 16 U.S.C. 1801 et seq. datasets are appropriate for assessment • IFQ Online Account Renewal analyses. The product of the Assessment Dated: May 12, 2020. Application, 10 minutes Process is a stock assessment report Tracey L. Thompson, • Wreckfish Quota Share Transfer, 20 which describes the fisheries, evaluates Acting Deputy Director, Office of Sustainable minutes the status of the stock, estimates Fisheries, National Marine Fisheries Service. Total Annual Burden Hours: 2,397. biological benchmarks, projects future [FR Doc. 2020–10443 Filed 5–14–20; 8:45 am] Needs and Uses: The NMFS Southeast population conditions, and recommends BILLING CODE 3510–22–P Regional Office manages three

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commercial IFQ and individual Follow the instructions to view the Caribbean Fishery Management transferable quota (ITQ) programs in the Department of Commerce collections Councils, in conjunction with NOAA Southeast Region under the authority of currently under review by OMB. Fisheries and the Atlantic and Gulf the Magnuson-Stevens Fishery Written comments and States Marine Fisheries Commissions Conservation and Management Act recommendations for the proposed have implemented the Southeast Data, (Magnuson-Stevens Act), 16 U.S.C. 1801 information collection should be Assessment and Review (SEDAR) et seq. The IFQ programs for red submitted within 30 days of the process, a multi-step method for snapper, and groupers and tilefishes publication of this notice on the determining the status of fish stocks in occur in Federal waters of the Gulf of following website www.reginfo.gov/ the Southeast Region. SEDAR is a multi- Mexico (Gulf), and the ITQ program for public/do/PRAMain. Find this step process including: (1) Data wreckfish occurs in Federal waters of particular information collection by Workshop; (2) Assessment Process the South Atlantic. selecting ‘‘Currently under 30-day utilizing webinars; and (3) Review The NMFS Southeast Regional Office Review—Open for Public Comments’’ or Workshop. The product of the Data proposes to revise parts of the by using the search function and Workshop is a data report that compiles information collection approved under entering either the title of the collection and evaluates potential datasets and OMB Control Number 0648–0551. This or the OMB Control Number 0648–0551. recommends which datasets are collection of information tracks the appropriate for assessment analyses. transfer and use of IFQ and ITQ shares, Sheleen Dumas, The product of the Assessment Process and IFQ allocation and landings Department PRA Clearance Officer, Office of is a stock assessment report that necessary to operate, administer, and the Chief Information Officer, Commerce describes the fisheries, evaluates the review management of the IFQ and ITQ Department. status of the stock, estimates biological programs. Regulations for the IFQ and [FR Doc. 2020–10468 Filed 5–14–20; 8:45 am] benchmarks, projects future population ITQ programs are located at 50 CFR part BILLING CODE 3510–22–P conditions, and recommends research 622. and monitoring needs. The assessment For the Gulf IFQ Programs, the is independently peer reviewed at the revisions would modify pages within DEPARTMENT OF COMMERCE Review Workshop. The product of the the Catch Share Online System. The National Oceanic and Atmospheric Review Workshop is a Summary Transfer Shares page allows IFQ Administration documenting panel opinions regarding shareholders to transfer shares online to the strengths and weaknesses of the other IFQ shareholders. Similarly, the [RTID 0648–XA172] stock assessment and input data. Transfer Allocation page allows IFQ Participants for SEDAR Workshops are shareholders to transfer allocation Fisheries of the Gulf of Mexico; appointed by the Gulf of Mexico, South online to other IFQ shareholders. Southeast Data, Assessment, and Atlantic, and Caribbean Fishery Beginning in 2020, IFQ shareholders Review (SEDAR); Public Meeting Management Councils and NOAA can use IFQ shares as collateral in the AGENCY: National Marine Fisheries Fisheries Southeast Regional Office, Federal Fisheries Finance Program to Service (NMFS), National Oceanic and HMS Management Division, and obtain a loan that can be used for fishing Atmospheric Administration (NOAA), Southeast Fisheries Science Center. related expenses. However, to Commerce. Participants include data collectors and accommodate the finance program, the database managers; stock assessment ACTION: Notice of public meeting. Transfer Shares and Transfer Allocation scientists, biologists, and researchers; pages must be modified to allow IFQ SUMMARY: The SEDAR 70 assessment of constituency representatives including shareholders to indicate if their shares Gulf of Mexico Greater Amberjack will fishermen, environmentalists, and are being held as part of a lien. The consist of a series of data and NGO’s; International experts; and staff Landing Transaction page allows IFQ assessment webinars. See of Councils, Commissions, and state and dealers to submit landing transactions SUPPLEMENTARY INFORMATION. federal agencies. online to record landings of IFQ species. DATES: The SEDAR 70 Data Webinar for The items of discussion in the Data NMFS would revise the Landing Gulf of Mexico Greater Amberjack will Webinar is as follows: Transaction page to allow for better data be held on June 4, 2020, from 1 p.m. to Participants will discuss what data collection and monitoring of landings in 3 p.m., Eastern Time. may be available for use in the assessment of Gulf of Mexico Greater conjunction with the NMFS Southeast ADDRESSES: Amberjack. Fisheries Science Center. Meeting address: The meeting will be If implemented by NMFS, these Although non-emergency issues not held via webinar. The webinar is open contained in this agenda may come administrative revisions would not to members of the public. Those change the estimated time or cost per before this group for discussion, those interested in participating should issues may not be the subject of formal response. NMFS estimates that it would contact Julie A. Neer at SEDAR (see FOR still require approximately 3 minutes to action during this meeting. Action will FURTHER INFORMATION CONTACT) to be restricted to those issues specifically complete the Transfer Shares or request an invitation providing webinar Transfer Allocation pages per identified in this notice and any issues access information. Please request arising after publication of this notice occurrence, and 6 minutes to complete webinar invitations at least 24 hours in the Landing Transaction page per that require emergency action under advance of each webinar. section 305(c) of the Magnuson-Stevens occurrence. SEDAR address: 4055 Faber Place Fishery Conservation and Management Affected Public: Individuals or Drive, Suite 201, North Charleston, SC Act, provided the public has been households; Business or other for-profit 29405. organizations. notified of the intent to take final action Frequency: Annual and periodic. FOR FURTHER INFORMATION CONTACT: Julie to address the emergency. Respondent’s Obligation: Mandatory. A. Neer, SEDAR Coordinator; (843) 571– Legal Authority: 16 U.S.C. 1801 et seq. 4366; email: [email protected]. Special Accommodations This information collection request SUPPLEMENTARY INFORMATION: The Gulf This meeting is physically accessible may be viewed at www.reginfo.gov. of Mexico, South Atlantic, and to people with disabilities. Requests for

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sign language interpretation or other (ICO), a joint effort between the National Legal Authority: Next Generation 911 auxiliary aids should be directed to the Highway Traffic Safety Administration (NG911) Advancement Act of 2012, Council office (see ADDRESSES) at least (NHTSA) and the National Public Law 112–96, Title VI, Subtitle E, 10 business days prior to each Telecommunications and Information codified at 47 U.S.C. 942. workshop. Administration (NTIA). It delineated the This information collection request Note: The times and sequence specified in responsibilities of the ICO to include a may be viewed at www.reginfo.gov. this agenda are subject to change. joint program to establish and facilitate Follow the instructions to view the coordination and communication Department of Commerce collections Authority: 16 U.S.C. 1801 et seq. between Federal, State, and local currently under review by OMB. Dated: May 12, 2020. emergency communications systems, Written comments and Tracey L. Thompson, emergency personnel, public safety recommendations for the proposed organizations, telecommunications Acting Deputy Director, Office of Sustainable information collection should be Fisheries, National Marine Fisheries Service. carriers, and telecommunications submitted within 30 days of the equipment manufacturers and vendors publication of this notice on the [FR Doc. 2020–10444 Filed 5–14–20; 8:45 am] involved in the implementation of 911 following website www.reginfo.gov/ BILLING CODE 3510–22–P services. public/do/PRAMain. Find this The NG911 Advancement Act particular information collection by provided funding for grants to be used DEPARTMENT OF COMMERCE selecting ‘‘Currently under 30-day for the implementation and operation of Review—Open for Public Comments’’ or National Telecommunications and 911 services, E911 services, migration to by using the search function and Information Administration an IP-enabled emergency network, and entering either the title of the collection adoption and operation of NG911 or the OMB Control Number 0660–0041. Agency Information Collection services and applications; the Activities; Submission to the Office of implementation of IP-enabled Sheleen Dumas, Management and Budget (OMB) for emergency services and applications Department PRA Clearance Officer, Office of Review and Approval; Comment enabled by NG911 services, including the Chief Information Officer, Commerce Department. Request; 911 Grant Program Annual the establishment of IP backbone Performance Report networks and the application layer [FR Doc. 2020–10463 Filed 5–14–20; 8:45 am] software infrastructure needed to BILLING CODE 3510–JE–P The Department of Commerce will interconnect the multitude of submit the following information emergency response organizations; and collection request to the Office of training public safety personnel, COMMITTEE FOR PURCHASE FROM Management and Budget (OMB) for including call-takers, first responders, PEOPLE WHO ARE BLIND OR review and clearance in accordance and other individuals and organizations SEVERELY DISABLED with the Paperwork Reduction Act of who are part of the emergency response 1995, on or after the date of publication chain in 911 services. In August of 2019, Procurement List; Deletions of this notice. We invite the general NTIA and NHTSA made $109,250,000 public and other Federal agencies to in grant awards to 36 agencies. AGENCY: Committee for Purchase From comment on proposed, and continuing The information collected for the People Who Are Blind or Severely information collections, which helps us remaining period of performance for Disabled. assess the impact of our information this grant program will include various ACTION: Deletions from the Procurement collection requirements and minimize reporting requirements. All grantees List. the public’s reporting burden. Public will submit performance and financial comments were previously requested reports in accordance with 2 CFR part SUMMARY: This action deletes products via the Federal Register on March 6, 200, the Uniform Administrative and services from the Procurement List 2020 during a 60-day comment period. Requirements, Cost Principles, and that were furnished by nonprofit This notice allows for an additional 30 Audit Requirements for Federal Awards agencies employing persons who are days for public comments. (OMB Uniform Guidance). It is blind or have other severe disabilities. Agency: National important for the Agencies to have this DATES: Date deleted from the Telecommunications and Information information so that they can effectively Procurement List: June 14, 2020. Administration. administer the grant program and ADDRESSES: Committee for Purchase Title: 911 Grant Program Annual account for the expenditure of funds. From People Who Are Blind or Severely Performance Report. The publication of this notice allows Disabled, 1401 S Clark Street, Suite 715, OMB Control Number: 0660–0041. NTIA to begin the process to request Arlington, Virginia, 22202–4149. Form Number(s): None. OMB approval to collect information Type of Request: Revision of a current under the provisions of the Paperwork FOR FURTHER INFORMATION CONTACT: information collection. Reduction Act (44 U.S.C. Chapter 35). Michael R. Jurkowski, Telephone: (703) Number of Respondents: 36. Affected Public: State, Local, or Tribal 603–2117, Fax: (703) 603–0655, or email Average Hours per Response: 60 Government. Under this proposed effort, [email protected]. hours. all grantees are required to submit SUPPLEMENTARY INFORMATION: Burden Hours: 2,160 hours. required electronically via email. Deletions Needs and Uses: In 2012, the Next Reporting entities are the 36 grantees, Generation 911 (NG911) Advancement making the total maximum number of On 4/10/2020, the Committee for Act of 2012 (Middle Class Tax Relief respondents 36. Purchase From People Who Are Blind and Job Creation Act of 2012, Pub. L. Frequency: Once a year. The reporting or Severely Disabled published notice of 112–96, Title VI, Subtitle E (codified at entities will be required to submit proposed deletions from the 47 U.S.C. 942)) enacted changes to this annual performance reports and Procurement List. This notice is program. It reauthorized the National certifications. published pursuant to 41 U.S.C. 8503 911 Implementation Coordination Office Respondents’ Obligation: Mandatory. (a)(2) and 41 CFR 51–2.3.

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After consideration of the relevant 6515–00–NIB–0520—Gloves, Surgical, 6515–00–NIB–0763—Gloves, Surgical, matter presented, the Committee has Powder-free, Latex, Triumph Green with Powder-free, Latex, Eudermic, Brown, ″ ″ determined that the products and Aloe, Green, Size 7.5 Size 8.5 6515–00–NIB–0521—Gloves, Surgical, 6515–00–NIB–0764—Gloves, Surgical, services listed below are no longer Powder-free, Latex, Eudermic, Brown, suitable for procurement by the Federal Powder-free, Latex, Triumph Green with Aloe, Green, Size 8″ Size 9″ Government under 41 U.S.C. 8501–8506 6515–00–NIB–0522—Gloves, Surgical, 6515–00–NIB–8108—Gloves, Surgical, and 41 CFR 51–2.4. Powder-free, Latex, Triumph Green with Powder-free, Latex, Triumph Classic, ″ White, Size 5.5″ Regulatory Flexibility Act Certification Aloe, Green, Size 8.5 6515–00–NIB–0523—Gloves, Surgical, 6515–00–NIB–8109—Gloves, Surgical, I certify that the following action will Powder-free, Latex, Triumph Green with Powder-free, Latex, Triumph Classic, ″ not have a significant impact on a Aloe, Green, Size 9″ White, Size 6 substantial number of small entities. 6515–00–NIB–0524—Gloves, Surgical, 6515–00–NIB–8110—Gloves, Surgical, The major factors considered for this Powder-free, Latex, Triumph Ortho with Powder-free, Latex, Triumph Classic, White, Size 6.5″ certification were: Aloe, Brown, Size 6″ 6515–00–NIB–0525—Gloves, Surgical, 6515–00–NIB–8111—Gloves, Surgical, 1. The action will not result in Powder-free, Latex, Triumph Classic, additional reporting, recordkeeping or Powder-free, Latex, Triumph Ortho with ″ White, Size 8.5″ other compliance requirements for small Aloe, Brown, Size 6.5 6515–00–NIB–0526—Gloves, Surgical, 6515–00–NIB–8112—Gloves, Surgical, entities. Powder-free, Latex, Triumph Classic, Powder-free, Latex, Triumph Ortho with 2. The action may result in White, Size 9″ Aloe, Brown, Size 7″ 6515–00–NIB–8121—Gloves, Surgical, authorizing small entities to furnish the 6515–00–NIB–0527—Gloves, Surgical, Powder-free, Latex-Free, Sensicare LT products and services to the Powder-free, Latex, Triumph Ortho with Custom Fit with Aloe, White, Size 7″ Government. Aloe, Brown, Size 7.5″ 6515–00–NIB–8122—Gloves, Surgical, 3. There are no known regulatory 6515–00–NIB–0528—Gloves, Surgical, Powder-free, Latex-Free, Sensicare LT alternatives which would accomplish Powder-free, Latex, Triumph Ortho with Custom Fit with Aloe, White, Size 7.5″ Aloe, Brown, Size 8″ the objectives of the Javits-Wagner- 6515–00–NIB–8123—Gloves, Surgical, 6515–00–NIB–0529—Gloves, Surgical, O’Day Act (41 U.S.C. 8501–8506) in Powder-free, Latex-Free, Sensicare LT connection with the products and Powder-free, Latex, Triumph Ortho with ″ ″ Custom Fit with Aloe, White, Size 8 services deleted from the Procurement Aloe, Brown, Size 8.5 6515–00–NIB–8124—Gloves, Surgical, List. 6515–00–NIB–0530—Gloves, Surgical, Powder-free, Latex-Free, Sensicare LT Powder-free, Latex, Triumph Ortho with ″ ″ Custom Fit with Aloe, White, Size 8.5 End of Certification Aloe, Brown, Size 9 6515–00–NIB–8149—Gloves, Surgical, Accordingly, the following products 6515–00–NIB–0749—Gloves, Surgical, Powder-free, Latex, Triumph Classic, Powder-free, Latex, Triumph LT, White, White, Size 7″ and services are deleted from the Size 5.5″ Procurement List: 6515–00–NIB–8150—Gloves, Surgical, 6515–00–NIB–0750—Gloves, Surgical, Powder-free, Latex, Triumph Classic, Products Powder-free, Latex, Triumph LT, White, White, Size 7.5″ Size 6″ NSN(s)—Product Name(s): 6515–00–NIB–8151—Gloves, Surgical, 6515–00–NIB–0751—Gloves, Surgical, 6515–00–NIB–0508—Gloves, Surgical, Powder-free, Latex, Triumph Classic, Powder-free, Latex, Triumph LT, White, Powder-free, Latex, Triumph Natural, White, Size 8″ Size 6.5″ White, Size 5.5″ 6515–00–NIB–8152—Gloves, Surgical, 6515–00–NIB–0752—Gloves, Surgical, 6515–00–NIB–0509—Gloves, Surgical, Powder-free, Latex, Radion-X, Khaki, Powder-free, Latex, Triumph LT, White, Size 6.5″ Powder-free, Latex, Triumph Natural, ″ White, Size 6″ Size 7 6515–00–NIB–8153—Gloves, Surgical, 6515–00–NIB–0510—Gloves, Surgical, 6515–00–NIB–0753—Gloves, Surgical, Powder-free, Latex, Radion-X, Khaki, Powder-free, Latex, Triumph LT, White, Size 7″ Powder-free, Latex, Triumph Natural, ″ White, Size 6.5″ Size 7.5 6515–00–NIB–8154—Gloves, Surgical, 6515–00–NIB–0511—Gloves, Surgical, 6515–00–NIB–0754—Gloves, Surgical, Powder-free, Latex, Radion-X, Khaki, Powder-free, Latex, Triumph Natural, Powder-free, Latex, Triumph LT, White, Size 7.5″ ″ White, Size 7″ Size 8 6515–00–NIB–8155—Gloves, Surgical, 6515–00–NIB–0512—Gloves, Surgical, 6515–00–NIB–0755—Gloves, Surgical, Powder-free, Latex, Radion-X, Khaki, Powder-free, Latex, Triumph Natural, Powder-free, Latex, Triumph LT, White, Size 8″ ″ White, Size 7.5″ Size 8.5 6515–00–NIB–8156—Gloves, Surgical, 6515–00–NIB–0513—Gloves, Surgical, 6515–00–NIB–0756—Gloves, Surgical, Powder-free, Latex, Radion-X, Khaki, Powder-free, Latex, Triumph Natural, Powder-free, Latex, Triumph LT, White, Size 8.5″ White, Size 8″ Size 9″ 6515–00–NIB–8157—Gloves, Surgical, 6515–00–NIB–0514—Gloves, Surgical, 6515–00–NIB–0757—Gloves, Surgical, Powder-free, Latex, Radion-X, Khaki, Powder-free, Latex, Triumph Natural, Powder-free, Latex, Eudermic, Brown, Size 9″ White, Size 8.5″ Size 5.5″ Mandatory Source of Supply: BOSMA 6515–00–NIB–0515—Gloves, Surgical, 6515–00–NIB–0758—Gloves, Surgical, Enterprises, Indianapolis, IN Powder-free, Latex, Triumph Natural, Powder-free, Latex, Eudermic, Brown, Contracting Activity: Strategic Acquisition White, Size 9″ Size 6″ Center, Fredericksburg, VA 6515–00–NIB–0516—Gloves, Surgical, 6515–00–NIB–0759—Gloves, Surgical, NSN(s)—Product Name(s): Powder-free, Latex, Triumph Green with Powder-free, Latex, Eudermic, Brown, 7510–01–600–7621—Wall Calendar, Dated Aloe, Green, Size 5.5″ Size 6.5″ 2019, Wire Bound w/Hanger, 12″ x 17″ 6515–00–NIB–0517—Gloves, Surgical, 6515–00–NIB–0760—Gloves, Surgical, Mandatory Source of Supply: Chicago Powder-free, Latex, Triumph Green with Powder-free, Latex, Eudermic, Brown, Lighthouse Industries, Chicago, IL Aloe, Green, Size 6″ Size 7″ Contracting Activity: GSA/FAS Admin Svcs 6515–00–NIB–0518—Gloves, Surgical, 6515–00–NIB–0761—Gloves, Surgical, Acquisition BR(2, New York, NY Powder-free, Latex, Triumph Green with Powder-free, Latex, Eudermic, Brown, NSN(s)—Product Name(s): Aloe, Green, Size 6.5″ Size 7.5″ 8340–00–485–3012—Tarpaulin, Flyer’s 6515–00–NIB–0519—Gloves, Surgical, 6515–00–NIB–0762—Gloves, Surgical, Emergency Powder-free, Latex, Triumph Green with Powder-free, Latex, Eudermic, Brown, Mandatory Source of Supply: L.E. Phillips Aloe, Green, Size 7″ Size 8″ Career Development Center, Inc., Eau

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Claire, WI Federal Government identified in this to CNCS via any of the following Contracting Activity: DLA Troop Support, notice will be required to procure the methods: Philadelphia, PA services listed below from nonprofit 1. Electronically through NSN(s)—Product Name(s): agencies employing persons who are 6230–00–NSH–0011—Flashlight, Magnet regulations.gov. Type, Krypton Bulb blind or have other severe disabilities. The following services are proposed Once you access regulations.gov, 6230–01–465–7180—Flashlight, Krypton locate the web page for this SORN by Bulb for addition to the Procurement List for production by the nonprofit agencies searching for Join Senior Service Now Mandatory Source of Supply: Development Web-based Recruiting System Workshop, Inc., Idaho Falls, ID listed: Contracting Activity: Strategic Acquisition (JASON)—Corporation-20. If you upload Services Center, Fredericksburg, VA any files, please make sure they include Service Type: Base Supply Center your first name, last name, and the Services Mandatory for: New Mexico National Guard, name of the SORN being rescinded. Santa Fe, NM Service Type: Custodial Services 2. By email at [email protected]. Mandatory for: U.S. Geological Survey— Mandatory Source of Supply: Envision, Inc., Warehouse: Huffman Business Park, Wichita, KS 3. By mail: Corporation for National Building P, Anchorage, AK Contracting Activity: Dept of the Army, and Community Service, Attn: Chief Mandatory for: U.S. Geological Survey— W7NQ USPFO Activity NM ARNG Privacy Officer, OIT, 250 E Street SW, Warehouse: 800 Ship Creek Avenue Service Type: Grounds Maintenance Service Washington, DC 20525. (USGS Storage Area), Anchorage, AK Mandatory for: Defense Information Systems 4. By hand delivery or courier to Mandatory Source of Supply: Assets, Inc., Agency, DISA Global, Building 5160, Anchorage, AK Scott AFB, IL CNCS at the address for mail between Contracting Activity: Office of Policy, Mandatory Source of Supply: Challenge 9:00 a.m. and 4:00 p.m. Eastern Management, and Budget, NBC Unlimited, Inc., Alton, IL Standard Time, Monday through Friday, Acquisition Services Division Contracting Activity: Defense Information except for Federal holidays. Systems Agency (DISA), IT Contracting Please note that all submissions Michael R. Jurkowski, Division—PL83 received may be posted without change Deputy Director, Business & PL Operations. Service Type: Grounds Maintenance Service to regulations.gov, including any Mandatory for: Defense Information Systems [FR Doc. 2020–10439 Filed 5–14–20; 8:45 am] personal information. BILLING CODE 6353–01–P Agency, DITCO, Building 3600, Scott AFB, IL FOR FURTHER INFORMATION CONTACT: Mandatory Source of Supply: Challenge Aaron Goldstein, (202) 606–3237, or by Unlimited, Inc., Alton, IL email at [email protected]. Please COMMITTEE FOR PURCHASE FROM Contracting Activity: Defense Information PEOPLE WHO ARE BLIND OR Systems Agency (DISA), IT Contracting include the system of record’s name and SEVERELY DISABLED Division—PL83 number. Procurement List; Proposed Additions Michael R. Jurkowski, SUPPLEMENTARY INFORMATION: CNCS Deputy Director, Business & PL Operations. established and maintained a system of AGENCY: Committee for Purchase From records, Join Senior Service Now Web- [FR Doc. 2020–10442 Filed 5–14–20; 8:45 am] People Who Are Blind or Severely based Recruiting System (JASON)— Disabled. BILLING CODE 6353–01–P Corporation-20, to manage records ACTION: Proposed additions to the created by an online service called Join Senior Service Now. Among other Procurement List. CORPORATION FOR NATIONAL AND features, potential Senior Corps COMMUNITY SERVICE SUMMARY: The Committee is proposing volunteers could use the service to find to add services to the Procurement List Senior Corps organizations which fit that will be furnished by nonprofit Privacy Act of 1974; System of Records their location and interests and send agencies employing persons who are messages to those organizations. CNCS blind or have other severe disabilities. AGENCY: Corporation for National and has since decommissioned the service DATES: Comments must be received on Community Service. and deleted all records collected or before: June 14, 2020. ACTION: Rescindment of a system of through the service. As such, CNCS is ADDRESSES: Committee for Purchase records notice. rescinding the system of records notice From People Who Are Blind or Severely Join Senior Service Now Web-based Disabled, 1401 S Clark Street, Suite 715, SUMMARY: The Corporation for National Recruiting System (JASON)— Arlington, Virginia 22202–4149. and Community Service (CNCS) is Corporation-20. rescinding the system of records named FOR FURTHER INFORMATION CONTACT: For Join Senior Service Now Web-based further information or to submit SYSTEM NAME AND NUMBER: Recruiting System (JASON)— comments contact: Michael R. Corporation-20. It was used to manage Join Senior Service Now Web-based Jurkowski, Telephone: (703) 603–2117, information about prospective Senior Recruiting System (JASON)— Fax: (703) 603–0655, or email Corps volunteers who sought placement Corporation-20. [email protected]. with organizations seeking their HISTORY: SUPPLEMENTARY INFORMATION: This services. notice is published pursuant to 41 67 FR 4395, 4396, January 30, 2002; DATES: You may submit comments until U.S.C. 8503 (a)(2) and 41 CFR 51–2.3. Its 67 FR 48616, 48616, July 25, 2002. purpose is to provide interested persons June 17, 2020. This system of records Dated: May 12, 2020. an opportunity to submit comments on notice (SORN) will be rescinded June the proposed actions. 17, 2020 unless CNCS receives any Ndiogou Cisse, timely comments which would result in Senior Agency Official for Privacy and Chief Additions a contrary determination. Information Officer. If the Committee approves the ADDRESSES: You may submit comments, [FR Doc. 2020–10478 Filed 5–14–20; 8:45 am] proposed additions, the entities of the identified by system name and number, BILLING CODE 6050–28–P

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CORPORATION FOR NATIONAL AND General Services Administration (GSA) Once you access regulations.gov, COMMUNITY SERVICE E-Gov Travel Service described at locate the web page for this SORN by http://www.gsa.gov/egovtravel. The searching for Employee/Member Privacy Act of 1974; System of records that were handled according to Occupational Injury/Illness Reports and Records Travel Files—Corporation-7 and Travel Claim Files—Corporation-6. If you Authorization Files—Corporation-16 are upload any files, please make sure they AGENCY: Corporation for National and now handled according to GSA’s include your first name, last name, and Community Service. government-wide SORN, GSA/GOVT–4, the name of the SORN being rescinded. ACTION: Rescindment of two system of Contracted Travel Services Program (74 2. By email at [email protected]. records notices. FR 26700, July 6, 2009). As such, CNCS 3. By mail: Corporation for National is rescinding the Travel Files— SUMMARY: The Corporation for National and Community Service, Attn: Chief Corporation-7 and Travel Authorization and Community Service (CNCS) is Privacy Officer, OIT, 250 E Street SW, Files—Corporation-16 system of rescinding two systems of records Washington, DC 20525. records. named Travel Files—Corporation-7 and 4. By hand delivery or courier to Travel Authorization Files— SYSTEM NAME AND NUMBER: CNCS at the address for mail between Corporation-16. These two systems of Travel Files—Corporation-7. 9:00 a.m. and 4:00 p.m. Eastern records were used to manage Standard Time, Monday through Friday, information about employees and HISTORY: except for Federal holidays. invitational travelers who traveled on 67 FR 4395, 4402, January 30, 2002. official CNCS business. Please note that all submissions SYSTEM NAME AND NUMBER: received may be posted without change DATES: You may submit comments until Travel Authorization Files— to regulations.gov, including any June 15, 2020. These system of records personal information. notices (SORNs) will be rescinded June Corporation-16. FOR FURTHER INFORMATION CONTACT: 15, 2020 unless CNCS receives any HISTORY: timely comments which would result in Aaron Goldstein, (202) 606–3237, or by 67 FR 4395, 4409, January 30, 2002. a contrary determination. email at [email protected]. Please Dated: May 12, 2020. ADDRESSES: You may submit comments, include the system of records’ name and identified by system name and number, Ndiogou Cisse, number. to CNCS via any of the following Senior Agency Official for Privacy and Chief SUPPLEMENTARY INFORMATION: The U.S. methods: Information Officer. Department of Labor (DOL) Office of 1. Electronically through [FR Doc. 2020–10477 Filed 5–14–20; 8:45 am] Workers’ Compensation Programs regulations.gov. BILLING CODE 6050–28–P administers the Federal workers’ Once you access regulations.gov, compensation program established by locate the web page for these SORNs by FECA. However, each agency must CORPORATION FOR NATIONAL AND searching for Travel Files—Corporation- complete certain tasks when a claim is COMMUNITY SERVICE 7 or Travel Authorization Files— filed against that agency. CNCS Corporation-16. If you upload any files, Privacy Act of 1974; System of previously established and maintained please make sure they include your first Records Employee/Member Occupational Injury/ name, last name, and the names of the Illness Reports and Claim Files— SORNs being rescinded. AGENCY: Corporation for National and Corporation-6 to manage the records 2. By email at [email protected]. Community Service. that CNCS collected to complete those 3. By mail: Corporation for National ACTION: Rescindment of a system of tasks. After DOL published a and Community Service, Attn: Chief records notice. government-wide SORN titled DOL/ Privacy Officer, OIT, 250 E Street SW, GOVT–1, Office of Workers’ Washington, DC 20525. SUMMARY: The Corporation for National Compensation Programs, Federal 4. By hand delivery or courier to and Community Service (CNCS) is Employees’ Compensation Act File (81 CNCS at the address for mail between rescinding a system of records named FR 25765, 25776, April 29, 2016), CNCS 9:00 a.m. and 4:00 p.m. Eastern Employee/Member Occupational Injury/ began using that SORN to handle the Standard Time, Monday through Friday, Illness Reports and Claim Files— records. This makes Employee/Member except for Federal holidays. Corporation-6. The system of records Occupational Injury/Illness Reports and Please note that all submissions was used to manage information about Claim Files—Corporation-6 redundant, received may be posted without change CNCS staff and full-time volunteers who so CNCS is rescinding it. to regulations.gov, including any filed workers’ compensation claims personal information. under the Federal Employees’ SYSTEM NAME AND NUMBER: Compensation Act (FECA). FOR FURTHER INFORMATION CONTACT: Employee/Member Occupational Aaron Goldstein, (202) 606–3237, or by DATES: You may submit comments until Injury/Illness Reports and Claim Files— email at [email protected]. Please June 15, 2020. This system of records Corporation-6. include the system of records’ name and notice (SORN) will be rescinded June number. 15, 2020 unless CNCS receives any HISTORY: timely comments which would result in SUPPLEMENTARY INFORMATION: CNCS 67 FR 4395, 4402, January 30, 2002. established and maintained two systems a contrary determination. of records, Travel Files—Corporation-7 ADDRESSES: You may submit comments, Dated: May 12, 2020. and Travel Authorization Files— identified by system name and number, Ndiogou Cisse, Corporation-16, to manage information to CNCS via any of the following Senior Agency Official for Privacy and Chief about employees and invitational methods: Information Officer. travelers who traveled on official CNCS 1. Electronically through [FR Doc. 2020–10480 Filed 5–14–20; 8:45 am] business. CNCS now participates in the regulations.gov. BILLING CODE 6050–28–P

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DEPARTMENT OF DEFENSE similar in nature,’’ does not imply an private sector and other government emulation of various features, but rather agencies for the best talent and be able Office of the Secretary implies a similar opportunity and to make job offers in a timely manner [Docket ID: DOD–2019–OS–0128] authority to develop personnel with the appropriate monetary flexibilities that significantly increase compensation and incentives, while not Science and Technology Reinvention the decision authority of laboratory penalizing current employees. Laboratory (STRL) Personnel commanders and/or directors. Response: JWAC–DP flexibilities, such as broadbanding, flexible pay Management Demonstration Project in 2. Overview the Joint Warfare Analysis Center setting and direct hire authorities, will (JWAC) of the United States Strategic DoD published notice on November aid in attracting the highly sought after Command (USSTRATCOM) 21, 2019 in 84 FR 64283 that JWAC will talent. The broadbanding structure and adopt, with some modifications, the flexible pay setting authorities will AGENCY: Under Secretary of Defense for STRL personnel demonstration project enable management to offer more Research and Engineering (USD(R&E)), published in 75 FR 53076, August 30, competitive starting salaries and broader Department of Defense (DoD). 2010, and implemented in the AFRL. pay ranges. The direct hire authorities ACTION: Personnel demonstration project Section 1105(b) of the NDAA for FY will allow JWAC to target specific notice. 2010, as amended by section 1104 of the occupations and recruiting events and NDAA for FY 2018, Public Law 115–91 provide a more streamlined hiring SUMMARY: This Federal Register Notice authorizes JWAC in the USSTRACOM experience for candidates. Nevertheless, (FRN) serves as notice of the adoption to implement an STRL personnel pay setting actions will continue to be of an existing STRL Personnel demonstration project. constrained by the JWAC civilian pay Demonstration Project by the Joint Adoption of the AFRL’s personnel budget, which is not to be confused Warfare Analysis Center (JWAC), United demonstration project, with with the pay pool budget applicable to States Strategic Command modifications, will enable JWAC to Contribution-based Compensation (USSTRATCOM). JWAC adopts, with achieve the best workforce for its System (CCS) actions. Current employee some modifications, the STRL Personnel mission, adjust the workforce for salaries are an established part of the Demonstration Project implemented at change, improve workforce quality, and civilian pay budget and civilian pay the Air Force Research Laboratory allow JWAC to acquire and retain an funds will not be reallocated to (AFRL). enthusiastic, innovative, and highly disadvantage current employees. Rather, DATES: Implementation of this educated and trained workforce, contribution-based pay parity is demonstration project will begin no particularly scientific and engineering achieved through the CCS assessment earlier than May 15, 2020. professionals. Implementation of the process. JWAC personnel demonstration project FOR FURTHER INFORMATION CONTACT: (2) Personnel Policy Board • (JWAC–DP) is essential for competitive Joint Warfare Analysis Center Comment: A commenter asked a (JWAC): Ms. Amy Balmaz, Director, hiring and retention of a highly qualified workforce. series of questions relating to section II. Human Resources, 4048 Higley Road, F. (Personnel Policy Board): ‘‘How does Dahlgren, VA 22448, (540) 653–8598, 3. Access to Flexibilities of Other STRLs the PPB ensure accountability? Is this [email protected]. information shared with all employees • Flexibilities published in this FRN DoD: Dr. Jagadeesh Pamulapati, will be available for use by the STRLs to help ensure accountability? If not, Director, Laboratories and Personnel enumerated in section 1105 of the why? If this is done behind closed doors Office, 4800 Mark Center Drive, NDAA for FY 2010, Public Law 111–84 then what true accountability is there? Alexandria, VA 22350, (571) 372–6372, as amended, if they wish to adopt them Pay secrecy helps make it easier for [email protected]. in accordance with DoD Instruction management to be less accountable for SUPPLEMENTARY INFORMATION: Section 1400.37 (and its successor instructions) their decision. Management may want 342(b) of the National Defense and after the fulfillment of any to keep in mind that many civil servant Authorization Act (NDAA) for Fiscal collective bargaining obligations. salaries are actually published online Year (FY) 1995, Public Law (Pub. L.) for the entire world to see—with names. 103–337; as amended, authorizes the 4. Summary of Comments If that is appropriate then is it 100% Secretary of Defense (SECDEF), through Sixteen comments were received appropriate for fellow employees within the USD(R&E), to conduct personnel electronically via the Federal JWAC to have at a minimum a full demonstration projects at DoD eRulemaking Portal regarding the picture of what awards were given out. laboratories designated as STRLs. Science and Technology Reinvention I am not suggesting to include names, but the monetary information should be 1. Background Laboratory (STRL) Personnel Management Demonstration Project in visible to all.’’ Many studies conducted since 1966 the Joint Warfare Analysis Center Response: The Personnel Policy Board on the quality of the laboratories and (JWAC) of the United States Strategic (PPB) ensures reasonable transparency personnel have recommended Command (USSTRATCOM), Federal and appropriate accountability by improvements in civilian personnel Register, 84 FR 64283, dated November publishing information such as the policy, organization, and management. 21, 2019. Of the 16 comments received, annual compensation strategy, to Pursuant to the authority provided in 4 were not relevant to this document include pay pool funding decisions, pay section 342(b) of Public Law 103–337, and are not addressed. The remaining pool process guidance, an aggregate as amended, a number of DoD STRL comments by topical area and a rollup of CCS results, and any changes personnel demonstration projects have response to each are provided below to the JWAC–DP policies. The been approved. The demonstration responsibilities of the PPB will be projects are ‘‘generally similar in (1) Problems With the Present Systems detailed in the JWAC internal operating nature’’ to the Department of Navy’s Comment: A commenter expressed procedures (IOPs), which will be China Lake Personnel Demonstration concern about how this project will available to all employees. Additionally Project. The terminology, ‘‘generally enable JWAC to compete with the the PPB will review the results of the

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evaluation described in Section VII and section 5307 of Title 5, United States payout. Once the retroactive increase is will publish its conclusions. Code (U.S.C.) and part 503, subpart B of approved and ready to be processed, title 5 of the Code of Federal revised pay transactions are sent (3) Pay Setting Regulations (CFR). Under these through the personnel and pay systems Comment: A commenter asked provisions, an employee’s total to update pay. The current STRL whether there would be service monetary compensation (to include base demonstration projects followed this obligation periods for employees pay and bonuses) may not exceed the process with the retroactive change in receiving a bonus (e.g., recruitment, basic rate of pay in level I of the GPI for 2019. retention, or relocation) to prevent Executive Schedule ($219,200 for Comment: A commenter asked what employee attempts to ‘‘game’’ the calendar year 2020). To recruit top concrete steps have been taken to ensure system by taking a bonus and then talent, management is otherwise that compensation bias does not affect leaving immediately. afforded significant flexibility to the outcomes of this program. Response: Use of these pay setting develop a compensation package, to Response: The question does not flexibilities will be governed by internal include annual pay and bonus, based on identify the the bias of concern. The JWAC IOPs which will require a the employee’s academic qualifications, Office of Personnel Management (OPM) continued service agreement for such competencies, experience and reviewed how various demographics bonuses. anticipated contributions. have fared under the STRL personnel Comment: A commenter asked a Comment: A commenter asked what demonstration projects and found the series of questions about the ‘‘demo limits are placed on how much students STRL results to be similar to GS bonus’’ available to employees returning to duty at JWAC can be paid employees. The Meetings of Managers converting into or hired into JWAC–DP: incentives/bonuses? process used in this compensation ‘‘Where does this money come from? If Response: The PPB will determine the system helps to alleviate bias by using it is from the general pot of money how use and the financial limits of this a group of managers who have been does offering bonuses to new employees incentive. The initial incentive payment provided objective criteria to make not penalize existing employees as may be based on anticipated expenses, compensation decisions. Additionally, money would be taken out of the pot of or a portion thereof. Documentation, to the PPB will review and analyze annual money being divided for yearly include receipts of actual expenses, CCS and evaluation results, and make payouts? Under pay setting ‘‘demo must be provided by the student to overall policy changes as needed. bonus’’: Why is the limitation on the validate initial incentive payment and Comment: A commenter made the bonuses allowed with the total support potential future payments. following observations about compensation not to exceed Level 1 of Actual expenses may include airline opportunities for employees to increase the Executive schedule? That appears to tickets, rental car, van rental, driving contribution levels in order to receive mean that the bonus could potentially cost from each location, and lodging. pay increases: ‘‘As this system is so be between 76,941 and 198,958! These Management has the discretion to dependent on ’contribution’ what potential bonuses seem excessive as determine the appropriate incentive concrete steps are being taken to ensure well as seem like an excessive amount amount, which may or may not cover all that ALL employees are given equal of leeway being given to management. expenses. Payments may be made opportunity to contribute in a While someone being given almost a incrementally (e.g., monthly, quarterly). significant way? In other words what 200K sign on bonus seems implausible, This authority is not intended to pay does management do to ensure that why is it even a granted option? moving expenses in conjunction with every year, every employee has the Wouldn’t this be better written as a permanent appointment action. opportunity to advance and be rewarded ‘‘demo bonus’’ up to X-thousand dollars equally? This cannot be left up to the can be given, where total compensation (4) CCS employee. Perhaps the employee is for the year does not exceed Level 1 of Comment: A commenter expressed doing a valid job that takes 100% of the Executive Schedule? On the flip side concerns with the use of the word their time, but it is not an appreciated to retain a highly preforming employee ‘‘perceived’’ in relation to employee job. Employees are not aware of all the with an ’alternative employment accomplishments. opportunities that are available, so they opportunity’ that employee can only be Response: The word has been can’t ask for an opportunity. And, of offered a bonus up to 50% of one year removed. course they don’t control what they are of base pay. This means a maximum of Comment: A commenter asked a given, even if they asked for new 68,329.50. (This authority in itself seem series of questions about application of opportunities. As an example: Say my excessive!) So in order to retain a the General Pay Increase (GPI) to pay given job was to empty the trash. It takes proven worker JWAC is authorized to calculations: ‘‘Are the rails moved all day and I don’t have time to do give a bonus smaller than the bonus FIRST and then it is determined if anything else. No one else is willing to authority authorized to get a new- someone falls within the rails or above do this job. People don’t seem to unproven employee? Where does all or below? Or is the location appreciate the contribution I make when this money come from, and how does determination made first and then the the trash is emptied, but there will awarding these bonuses not affect the rail moved? What happens if (when) a certainly be criticism if the job is NOT pay of other employees?’’ late or even retroactive basic pay rate done. Thus we don’t give credit for a Response: While the flexible pay increase occurs? All this could affect if good job being done which is a required setting authority is meant to help the someone gets the basic rate increase or (and very important) job. In other words JWAC compete with private industry for not. (Ex: someone was just above the rail the true contribution is not high quality candidates, pay setting so they would not automatically get any acknowledged except in the negative. If actions will continue to be constrained late general basic pay rate).’’ this job is going to continue to be by the JWAC civilian pay budget which Response: Rail position is based on discounted then what opportunity will does not reallocate funds to the current year’s pay. Retroactive I be given to learn and practice a new disadvantage existing employees. changes to the General Pay Increase skill which makes a greater Moreover, JWAC–DP will continue to (GPI) do not affect pay calculations, but ’contribution’? Or as a flip side, what apply the aggregate pay limitations in only affect the amount of the GPI steps will be taken to ensure that when

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management rates me, my ’contribution’ Response: Evaluations conducted by crisis, and war. In order to enable is truly appropriately acknowledged? various public and private organizations military forces to rapidly achieve U.S. The multiple level evaluations do not over the last 40 years are maintained by national security objectives, JWAC relies seem to alleviate this issue. How is the those organizations. The Office of on the analysis of a variety of actual opportunities the employee was Personnel Management (OPM) engineering, scientific, intelligence, and given taken into account? If they are, published evaluation reports in the social science disciplines. The how will management ensure that the early years of the STRL demonstration analytical and research teams apply general population actually believes this projects but no longer does, Each STRL social and physical science techniques is true? How will management prove it is responsible for conducting and and engineering expertise to provide to the general worker? Bottom line: If an maintaining their own evaluations. quick-turn-around solutions to support employee is not given an opportunity to JWAC will be required to do the same, the warfighter. Further, JWAC conducts ’contribute’ in a significant way how is as outlined in the FRN. research and development of new the salary/award outcome fair and equal methodologies and technologies to (7) Terminology Clarification in this system?’’ advance technical analysis of critical Response: The employee and the Comment: A commenter questioned networks and provide more targeting supervisor must work together to ensure the use of the gender pronouns ‘‘his’’ options against emerging threats. that assigned duties and tasks contribute and ‘‘her’’ because some may believe JWAC must be able to acquire and to the mission. Both the employee and that they exclude non-binary retain an enthusiastic, innovative, and the supervisor should be able to employees. highly educated and trained workforce, articulate the relevance and the impact Response: Although use of such particularly scientists and engineers, of the work. An employee’s expected pronouns is not objectionable, they are and must have in place a system that contribution is determined by the not necessary for the purposes of this fosters their development, enhances current level of base pay and the duties FRN and have been removed. their contribution and experience, and of the job as defined in the Statement of Table of Contents provides a strong retention incentive. Duties and Experience. As long as the II. Introduction employee contributes at the level of the I. Executive Summary current level of pay, the employee will II. Introduction A. Purpose A. Purpose receive the GPI each year. To receive B. Problems With the Present System The purpose of JWAC—DP is to more than the GPI, the employee must C. Expected Benefits demonstrate that the effectiveness of contribute at a higher level. For D. Participating Employees DoD laboratories can be enhanced by example, this may involve expanding E. Project Design allowing greater managerial control over the duties of the job or performing the F. Personnel Policy Board personnel functions and, at the same duties in a manner that is more efficient. III. Personnel System Changes time, expanding the opportunities However, when additional contribution A. Hiring and Appointment Authorities B. Pay Setting available to employees through a more opportunities for a certain level of pay responsive and flexible personnel or occupation become limited, an C. Broadbanding D. Classification system. JWAC—DP will provide employee may need to pursue a higher E. Contribution-Based Compensation managers, at the lowest practical level, level position in order to obtain greater System the authority, control, and flexibility compensation opportunities. F. Dealing With Inadequate Contributions needed to achieve a quality laboratory (5) JWAC–DP Training G. Voluntary Emeritus Corps and quality products. H. Employee Development Comment: A commenter questioned IV. JWAC—DP Training B. Problems With the Present System whether the JWAC–DP Training V. Conversion 1. JWAC has a proven history of A. Conversion to the Demonstration Project provided during transition will lead to providing the warfighter with targeting program commitment on the part of the B. Conversion to another Personnel System VI. Project Duration and Changes recommendations that break free from participants. VII. Evaluation Plan attrition warfare and focus on striking Response: Training is a key A. Overview the enemy at the point that produces the component of JWAC preparation for a B. Evaluation Model greatest advantage for friendly forces. It smooth transition. Training is expected C. Method of Data Collection has the ability to provide to increase the rate of change VIII. Demonstration Project Costs recommendations that can prevent war management success, encourage IX. Required Waivers to Law and Regulation and, if necessary, help our nation win belonging, provide clarity and A. Title 5, United States Code in time of conflict. To achieve its understanding, and promote employee B. Title 5, Code of Federal Regulations Appendix A: Career Path Occupational Series mission, JWAC must acquire and retain engagement. This section has been Appendix B: Example of Factors and an enthusiastic, innovative, and highly revised to better convey JWAC’s intent Descriptors, Scientists and Engineer educated and trained workforce, to provide workforce training in order to Career Path, Pay Plan DR particularly scientific and engineering ease employee concerns about moving professionals. to a new system. I. Executive Summary 2. The Civil Service General Schedule JWAC is a global warfighting (GS) personnel system has several major (6) Evaluation Plan organization and a subordinate inefficiencies that hinder management’s Comment: A commenter asked organization of the USSTRATCOM. ability to recruit and retain the best- whether an evaluation has been JWAC provides targeting analysis to qualified personnel. Line managers have conducted for the existing STRL combatant commands, Joint Staff, and only limited authority to manage programs to ensure that there is no other customers including effects-based, personnel resources, and existing detriment to employees’ pay and precision targeting options for selected personnel regulations are often in bonuses based on sex, race, or any other networks and nodes in order to carry conflict with management’s ability to protected class and, if so, where the out the national security and military support JWAC’s mission. Current evaluation results are published. strategies of the U.S. during peace, personnel action processes and

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procedures cause delays in recruiting, compensation that attracts high-quality, employees are converted to the JWAC— reassigning, promoting, and removing in-demand employees; DP. employees. c. employee satisfaction with pay E. Project Design 3. The GS classification system rigidly setting and adjustment, recognition, and defines types of work by occupational career advancement opportunities; The JWAC–DP was designed and led series and grade, with very precise d. human resources (HR) flexibilities by a cross-functional team comprised of qualifications for each job which are needed to staff, shape, and adjust to the Director or Deputy Director and then classified by complex classification evolving requirements associated with other senior leaders representing each standards, causing lengthy hiring sustaining a quality workforce for the JWAC directorate. The design team was delays, and limiting the manager’s future; and augmented and supported by volunteers ability to offer competitive e. retention of high-level contributors. from across JWAC to support the iterative development, assessment and compensation. This system does not 3. To effectively meet the above evaluation of all of the elements of the easily or quickly respond to changes in expectations, the JWAC–DP has JWAC–DP design. The team the work based on mission identified and established in this notice composition represented all career requirements. One of the JWAC—DP’s those features and flexibilities that fields and utilized their vast experience goals is to support simplified provide the mechanisms to achieve its in the current systems and authorities as classification processes that can be objectives. Those features and well as previous DoD personnel accomplished quickly and efficiently at flexibilities alone, however, will not management systems. The design team the lowest level of management. ensure success. The nature of the reviewed and considered all existing 4. JWAC must be able to compete with JWAC–DP and its ambitious workforce the private sector and other government STRL designs through detailed reviews goals will require HR support at an of the published FRNs, exchanges with agencies for the best talent and be able enhanced level. A traditional process- other STRL program managers, and to make job offers in a timely manner oriented and reactive construct will organizational site visits to leverage the with the appropriate monetary serve neither the mission nor the experience and lessons-learned of compensation and incentives to attract management needs of the organization. existing, mature STRL designs. The high quality employees. JWAC must The JWAC–DP’s emphases include its JWAC design team relied heavily on successfully compete for high quality streamlined hiring, a sophisticated subject-matter-expertise that has been scientists and engineers locally with contribution-based compensation supporting the AFRL demonstration Naval Surface Warfare Center (NSWC) system, talent acquisition/retention, and project’s design and revisions, as well as Dahlgren Division, an established STRL, professional human capital planning demonstration projects that have been and the public and private sector across and execution. Accordingly, successful utilized at other STRLs, some for over the National Capital Region. Today, execution of that vision includes an HR 20 years. The JWAC–DP design is other STRLs can make an employment service delivery model that is highly grounded in the AFRL demonstration offer, at a much higher salary, to a proactive, expertly skilled in analytical project’s design, and takes advantage of promising candidate before JWAC can tools, and fully capable of engaging as authorities and design elements from prepare the paperwork necessary to a strategic partner and trusted agent of other DoD laboratories and personnel begin the recruitment process. a modern multi-faceted organization. systems applicable to JWAC. The C. Expected Benefits D. Participating Employees JWAC–DP design team utilized an iterative approach of reviews and a 1. This project is expected to 1. The JWAC–DP will cover civilian series of mock activities to develop, test, demonstrate that a human resources appropriated fund employees in the and exercise the JWAC–DP design system tailored to the mission and competitive and excepted service, proposal, including a JWAC-wide needs of JWAC will result in: unless otherwise excluded. Personnel workforce critique of the draft FRN. The a. Increased quality in the total added to the laboratory after design is focused on recruiting and workforce and the products they implementation either through hiring authorities and flexibility as well produce; appointment, conversion, promotion, as a contribution-based compensation b. increased timeliness of key reassignment, change to a lower grade, system. This FRN adopts hiring personnel processes; or where their functions and positions authorities currently utilized by other c. increased retention of high have been transferred into the laboratory DoD STRL Personnel Demonstration contributing employees; will be converted to the demonstration Projects. d. increased employee satisfaction project. with the laboratory; and 2. Senior Executive Service (SES) F. Personnel Policy Board e. improved procedures for effectively members, Defense Civilian Intelligence JWAC has created a Personnel Policy and efficiently dealing with poor Personnel System (DCIPS, pay plan GG) Board (PPB) to oversee and monitor the contributors. positions, and Department of Air Force fair, equitable, and consistent 2. The JWAC–DP builds on the (DAF) centrally funded interns and implementation of the provisions of the successful features of existing recent graduates appointed under the demonstration project to include demonstration projects, including the Pathways Program are not covered in establishing internal controls and AFRL’s. For the JWAC–DP to achieve the demonstration project. accountability. The PPB Chairperson the same results it must enable and 3. DAF centrally funded interns and and members of the board are senior enhance: recent graduates will convert to the JWAC managers appointed by the JWAC a. The ability to attract highly JWAC—DP once they have successfully Commander and documented in qualified scientific, technical, business, completed a formal development internal operating procedures (IOPs). and support employees in today’s program and converted to a competitive The PPB Chairperson serves as the pay competitive environment; position in JWAC. Performance pool manager and must report directly b. the ability to select personnel and appraisals will be conducted using the to the JWAC Commander. Ad hoc make job offers in a timely and efficient Defense Performance Management and members can be assigned at the manner, with the competitive Appraisal Program (DPMAP) until such discretion of the JWAC Commander to

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provide subject matter expertise or to is a mix of preference eligible and non- requires approval under applicable DA advise the PPB. The establishment of preference eligible applicants. Statutes pass-over or objection procedures. this Board shall not affect the authority and regulations covering veterans’ Distinguished Scholastic Achievement of any management official in the preference are observed in the selection Appointments will enable JWAC to exercise of their management rights set process and when rating and ranking are respond quickly to hiring needs for forth in 5 U.S.C. 7106(b)(1). The PPB is required. eminently qualified candidates tasked with the following: The JWAC Commander is delegated possessing distinguished scholastic 1. Formulating and managing the authority, with respect to a JWAC achievements. civilian pay pool budget; employee, to administer the oath of 4. Flexible Length and Renewable 2. Determining the composition of the office required by 5 U.S.C. 3331, Term Technical Appointments (Flexible pay pool in accordance with the incident to entrance into the executive Term Appointment): Non-permanent guidelines of this proposal and internal branch or any other oath required by positions (exceeding one year) needed procedures; law in connection with employment in to meet fluctuating or uncertain 3. Reviewing operation of JWAC’s pay the executive branch. workload requirements may be pool process; competitively filled using the Flexible 4. Providing guidance to the pay pool 2. Direct Hiring Authorities Length and Renewable Term Technical process; The JWAC–DP will use the direct-hire Appointment Authority, authorized in 5. Reviewing seamless broadband authorities authorized by section 1108 section 1109 of NDAA FY16, Section level movements; of the NDAA for FY 2009 as amended 1109, as amended by section 1112 of 6. Reviewing Accelerated by section 1103 of the NDAA FY 2012 NDAA FY19 and described 82 FR Compensation for Developmental and in 10 U.S.C. 2358a to non- 43339, 43340, or the Contingent Position (ACDP) increases; competitively appoint the following: Employee Appointment Authority 7. Monitoring award pool distribution a. Candidates with advanced degrees authorized in 62 FR 34876, 34899. by organization or any other special to scientific and engineering positions; Employees hired for more than one categorization; b. Candidates with bachelor’s degrees year, under the Contingent Employee 8. Assessing the need for and making to scientific and engineering positions; Appointment Authority (CEAA), are changes to the JWAC–DP policies when c. Veteran candidates to scientific, given modified term appointments in needed to further define specific technical, engineering, and mathematics the competitive service for up to five flexibilities to ensure standard positions (STEM), including years. The JWAC Commander is application across the organizational technicians; and authorized to extend a contingent units; d. Student candidates enrolled in a appointment for up to one additional 9. Ensuring all budget decisions are in program of instruction leading to a year. alignment with funding sponsor’s fiscal bachelors or advanced degree in a STEM Using the Flexible Length and guidelines and boundaries; and discipline. Renewable Term Technical 10. Ensuring that all employees are 3. Distinguished Scholastic Appointment Authority (FLRTTA), a treated in a fair and equitable manner in Achievement Authority (DSAA): The modified term scientific or technical accordance with all policies, JWAC–DP will use the Distinguished position may be filled for any period of regulations, and guidelines covering this Scholastic Achievement Authority more than one year but not more than demonstration project. (DSAA) to non-competitively appoint six years, and may be extended in up to candidates possessing a bachelor’s III. Personnel System Changes six year increments at any time. degree or higher to Science and Employees hired under these A. Hiring and Appointment Authorities Engineering positions, Business appointment authorities may be eligible Management and Professional positions for conversion to career appointments. 1. Description of Hiring Process or Technician positions, up to the To be converted from CEAA or JWAC is implementing a streamlined equivalent of GS–12 (DR–II or DO–II). FLRTTA, the employee must (a) have examining process as demonstrated in Candidates may be appointed using this been selected for the term position other STRLs. This applies to all covered authority provided all of the following under an announcement or public positions in JWAC, with the exception conditions are met: the candidate meets notice specifically stating that the of Senior Executive Service (SES) and the minimum standards for the position individual(s) selected for the term DAF centrally funded interns and as published in OPM’s operating position(s) may be eligible for students. This process includes manual, ‘‘Qualification Standards for conversion to career-conditional coordination of recruitment and public General Schedule Positions,’’ plus any appointment at a later date without notices, the administration of the selective factors stated in the vacancy further competition; (b) served two examining process, the certification of announcement; the occupation has a years of substantially continuous service candidates, and selection and positive education requirement; and the in a term position; and (c) have a appointment consistent with merit candidate has a cumulative grade point current rating of acceptable or better. system principles, to include existing average of 3.5 or better (on a 4.0 scale) Employees serving under term authorities under title 5 U.S.C. and title in those courses in those field’s of study appointments at the time of conversion 5 of the CFR. The ‘‘rule of three’’ is that are specified in the Qualifications to the STRL Demonstration Project will eliminated, similar to the authorities Standards for the occupational series. be converted to new term contingent granted to AFRL in 75 FR 53076, August Veterans’ preference procedures will employee appointments. Time served in 30, 2010. When there are no more than apply when selecting candidates under term positions prior to conversion to the 15 qualified applicants and no this authority. Preference eligible contingent employee appointment is preference eligible applicants, all candidates who meet the above criteria creditable to the requirement for two qualified applicants are immediately will be considered ahead of non- years of continuous service stated referred to the selecting official without preference eligible candidates. In above, provided the service was rating and ranking. Rating and ranking making selections, to pass over any continuous. are required only when the number of preference eligible candidate(s) to select 5. Reemployed Annuitants and qualified candidates exceeds 15 or there a non-preference eligible candidate Voluntary Early Retirement Authority

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and Voluntary Separation Incentive continued employment, the employee development in the physical, biological, Payment: The JWAC Commander may will be provided written notification of medical or engineering sciences or appoint reemployed annuitants and/or the reasons for separation and the another field closely related to the offer Voluntary Early Retirement effective date of the action. The mission of the JWAC; and to carry out Authority (VERA)/Voluntary Separation information in the notice as to why the technical supervisory responsibilities. Incentive Payment (VSIP) packages as employee is being terminated will, as a The number of such positions shall not described in 82 FR 43339, September minimum, consist of the manager’s exceed two percent of the number of 15, 2017, to shape the mix of technical conclusions as to the inadequacies of scientists and engineers employed at skills and expertise in the workforce. their performance or conduct. JWAC. 6. Probationary Period. The Supervisory probationary periods will b. Business Management and probationary period will be three years be made consistent with 5 CFR 315.901. Professional (Pay Plan DO) Career Path: for all newly hired employees, Employees that have successfully This career path supports the S&E including individuals entering the completed the initial probationary mission, and includes specialized JWAC–DP after a break in service of 30 period will be required to complete an positions such as finance, acquisition, calendar days or more. Employees who additional one year probationary period human resources, IT services, and enter the JWAC–DP with a break in for the initial appointment to a administrative specialists. Employees service of less than 30 calendar days are supervisory position. If, during the may or may not be required to have not required to complete an extended supervisory probationary period, the specific course work or degrees to probationary period if their previous decision is made to return the employee qualify for these positions. Four service was in the same line of work as to a nonsupervisory position for reasons broadband levels have been established determined by the employee’s actual solely related to supervisory for the Business Management and duties and responsibilities upon performance, the employee will be Professional career path: reappointment. Current permanent returned to a comparable position of no • Band level I minimum eligibility Federal employees hired into the lower payband and pay than the requirements are consistent with the JWAC–DP are not required to serve a position from which promoted. GS–07 qualifications. new probationary period. Any employee 7. Qualification Determinations: A • Band level II minimum eligibility appointed prior to the date of this FRN candidate’s basic eligibility will be requirements are consistent with the will not be affected. determined using OPM’s ‘‘Qualification GS–12 qualifications. Employees on non-status Standards Handbook for General • Band level III minimum eligibility appointments (appointments that are Schedule Positions.’’ Selective requirements are consistent with the time-limited or nonpermanent and from placement factors may be established in GS–14 qualifications. which employees do not acquire accordance with OPM’s Qualification • Band level IV minimum eligibility competitive status) will be subject to the Handbook when determined to be requirements are consistent with the probationary period required by their critical to successful position GS–15 qualifications. appointing authority. Upon conversion contribution. These factors are c. Technician (Pay Plan DX) Career from a non-status appointment to a communicated to all candidates for Path: This career path is associated with competitive service appointment, particular position vacancies and must and supportive of a professional field employees will be required to serve a be met for basic eligibility. and may involve substantial elements of three-year probationary period. a. Science and Engineering (S&E) (Pay the work of the professional field, but However, employees serving on a Plan DR) Career Path: This career path requires less than full knowledge of the Flexible Length and Renewable Term includes technical professional field involved. It includes positions Technical Appointment will serve a positions, such as engineers, physicists, such as Engineering Technician and three-year trial period (in accordance chemists, metallurgists, mathematicians, Electronics Technician. Employees in with (IAW) 5 CFR 316.304 except that operations research analysts, and these positions may or may not require rather than a one-year trial period, it is computer scientists. Additional specific course work or educational a three-year trial period). Upon occupational series may be added in the degrees. Four broadband levels have conversion to competitive service, any future. Employees in these positions been established for the Technician periods of employment served during a require specific course work or career path: non-status appointment or a flexible educational degrees. Five broadband • Band level I minimum eligibility term appointment will be counted levels have been established for the S&E requirements are consistent with the toward the completion of the extended career path: GS–01 qualifications. probationary period. • Band level I minimum eligibility • Band level II minimum eligibility All other features of the current requirements are consistent with the requirements are consistent with the probationary period are retained, GS–07 qualifications. GS–05 qualifications. including the potential to remove an • Band level II minimum eligibility • Band level III minimum eligibility employee without providing the full requirements are consistent with the requirements are consistent with the substantive and procedural rights GS–12 qualifications. GS–08 qualifications. afforded a non-probationary employee. • Band level III minimum eligibility • Band level IV minimum eligibility Probationary employees will be requirements are consistent with the requirements are consistent with the terminated if an employee fails to GS–14 qualifications. GS–11 qualifications. demonstrate proper conduct, technical • Band level IV minimum eligibility d. Mission Support (Pay Plan DU) competency, and/or adequate requirements are consistent with the Career Path: This career path includes contribution for continued employment. GS–15 qualifications. positions for which specific course work When the JWAC Commander or • Band level V minimum eligibility or educational degrees are not required. designee decides to terminate an requirements are above the GS–15 This career path includes clerical work, employee serving a probationary period qualifications. This band is limited to that usually involves the processing and because their work performance or senior scientific technical manager maintaining of records, as well as conduct during this period fails to (SSTM) positions, the primary functions assistant work, that requires knowledge demonstrate fitness or qualifications for of which are to engage in research and of methods and procedures within a

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specific administrative area. Examples increased base pay (up to the ceiling of basic pay for the pay band. At the time of positions within this career path the pay band) and/or a one-time cash of conversion, an employee on grade include secretaries, office automation payment that does not exceed 50 retention will be converted to the career clerks, and budget/program/computer percent of one year of base pay. path and broadband level based on the assistants. Retention counteroffers, either in the assigned permanent position of record, • Band level I minimum eligibility form of a base pay increase or a bonus, not the retained grade. An employee’s requirements are consistent with the count toward the aggregate limitation on adjusted pay will not be reduced upon GS–01 qualifications. pay consistent with 5 U.S.C. 5307 and conversion. Implementing instructions • Band level II minimum eligibility 5 CFR part 530, subpart B. Further will be documented in IOPs. requirements are consistent with the details will be published in the IOP. GS–05 qualifications. 4. Student recruitment is currently C. Broadbanding • Band level III minimum eligibility limited to the local commuting area JWAC–DP will use a broadbanding requirements are consistent with the because college students often cannot approach to compensation and GS–07 qualifications. afford to temporarily relocate to the classification. A broadbanding structure • Band level IV minimum eligibility Dahlgren area while enrolled at schools will simplify the classification system, requirements are consistent with the outside of the local commuting area. To reduce the number of distinctions GS–09 qualifications. expand recruitment to top universities, between levels of work, and facilitate 8. Temporary Promotions and Details: the authority in 5 CFR part 575 is delegation of classification authority JWAC may detail its employees to expanded to allow management to pay and responsibility to line managers. higher broadband level positions and a relocation incentive/bonus each time The broadbanding structure replaces temporarily promote employees for up a student returns to duty to JWAC. The the GS structure. Table 1 shows the four to one year within a 24-month period, PPB will determine the use and the broadband levels in each career path, with or without competition, and may financial limits of this incentive. The labeled I, II, III, IV, and the additional extend such detail or promotion by one initial incentive payment may be based broadband level, labeled V, for SSTM additional year, similar to the authority on anticipated expenses, or a portion positions in the S&E career path. The adopted by the AFRL in 75 FR 53076, thereof. Documentation, to include broadband levels are designed to August 30, 2010. receipts of actual expenses, must be enhance pay progression and to allow for more competitive recruitment of B. Pay Setting provided by the student to validate initial incentive payment and for quality candidates at differing rates 1. Management has authority to determining potential future payments. within the appropriate broadband establish appropriate basic pay for Actual expenses may include the cost of level(s). Competitive promotions will be employees converting into or hired by airline or other commercial less frequent and movement through the the JWAC—DP. The basic pay of newly transportation, rental vehicles, fuel, and broadband levels will be a more hired personnel will be at a level lodging. Management has the discretion seamless process. Like the broadbanding consistent with the expected to determine the appropriate incentive system used at AFRL, advancement contribution of the position. The amount, which may or may not cover all within each band is based upon expected contribution is based on the expenses. Payments may be made contribution. employee’s academic qualifications, incrementally (e.g., monthly, quarterly). The four distinct career paths within competencies, and experience, as well This authority is not intended to pay JWAC–DP are: S&E, Business as the position’s scope and level of moving expenses in conjunction with a Management and Professional, difficulty. Except for Senior Scientific permanent appointment. Technician, and Mission Support. Technical Manager (SSTM) positions, 5. Accelerated Compensation for 1. S&E (Pay Plan DR) basic pay is limited to an amount equal Developmental Positions (ACDP): The to GS–15, step 10 pay. A demo bonus JWAC Commander may authorize an • Band I includes the current GS–7 (a lump sum payment made to an increase to basic pay for employees through GS–11; • employee) may be provided to participating in training programs, Band II includes the current GS–12 employees converting into or hired by through GS–13; internships, or other development • the JWAC–DP. An employee’s total capacities. ACDP will be used to Band III includes the current GS– 14; monetary compensation paid in a recognize development of job related • calendar year may not exceed the basic competencies as evidenced by Band IV includes the current GS– 15; rate of pay paid in level I of the successful contribution to the JWAC. • Executive Schedule consistent with 5 The use of ACDP is limited to Band V SSTM positions above GS– U.S.C. 5307 and 5 CFR part 530, subpart employees in pay bands I and II in the 15. B. Further details will be published in Business Management and Professional 2. Business Management and the IOP. and S&E career paths. Additional Professional (Pay Plan DO) 2. The JWAC Commander is guidance will be published in an IOP. • Band I includes the current GS–7 6. Maintained Pay: The JWAC–DP authorized to approve retention, through GS–11; recruitment, and relocation incentives. will eliminate retained grade and • Band II includes the current GS–12 Unless specifically amended by this retained pay and will adopt through GS–13; notice, the eligibility and ‘‘maintained pay’’ provisions similar to • Band III includes the current GS– documentation requirements in 5 CFR those utilized in AFRL (75 FR 53076). 14; part 575 remain in effect. An employee may be entitled to • Band IV includes the current GS– 3. The JWAC Commander may offer a maintain the employee’s current rate of 15. retention counteroffer to retain high basic pay if, as a result of personnel performing employees with critical actions that would entitle the employee 3. Technician (Pay Plan DX) scientific or technical skills who present to grade or pay retention under Title 5, • Band I includes the current GS–1 evidence of an alternative employment the employee is placed in a payband through GS–4; opportunity with higher compensation. where the employee’s current rate of • Band II includes the current GS–5 Such employees may be provided basic pay exceeds the maximum rate of through GS–7;

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• Band III includes the current GS–8 • Band II includes the current GS–5 Comparison to the GS grades was through GS–10; through GS–6; useful in setting the upper and lower • Band IV includes the current GS–11 • Band III includes the current GS–7 dollar limits of the broadband system; through GS–12. through GS–8; however, once employees are converted or hired into the JWAC–DP, GS grades 4. Mission Support (Pay Plan DU) • Band IV includes the current GS–9 and steps no longer apply. • Band I includes the current GS–1 through GS–10. through GS–4;

The JWAC–DP will use the authority (EX–III), and maximum salary without descriptors published in 75 FR 5076, in title 10 U.S.C. 2358a to expand the locality pay may not exceed EX–IV. The August 30, 2010, and OPM classification S&E career path to include a broadband contribution management system used guidance will be used as a framework to level V. This broadband level is to evaluate an SSTM employee will be develop JWAC specific factors and designed for SSTM positions, the documented in the JWAC IOPs. descriptors (see Appendix B). The primary functions of which are: (1) To JWAC–DP factors and descriptors will D. Classification engage in research and development in also be used for the annual the physical, biological, medical, or 1. Statement of Duties and Experience Compensation-based Contribution engineering sciences, or another field (SDE) System (CCS) employee assessments closely related to the JWAC mission; (Section III., E. 3). Factors and Under the JWAC–DP’s simplified and (2) to carry out technical descriptors will be documented in classification system, the SDE replaces supervisory responsibilities. The SSTM JWAC IOPs. positions will be similar to those the DAF Form 1003 Air Force Core described in 79 FR 43722. Panels will be Personnel Document (CPD). The SDE 4. Classification Authority created to assist in filling SSTM includes a description of position- The JWAC Commander will have positions. Panel makeup will be specific information; identifies the classification authority and may, in- included in the IOPs. The panel will career path, occupational series and turn, re-delegate this authority to apply criteria developed largely from broadband level; includes the factors appropriate levels. HR Specialists will the current OPM Research Grade and descriptors for the assigned career provide ongoing consultation and Evaluation Guide for positions path and broadband level; and provides guidance to managers and supervisors exceeding the GS–15 level. Vacant data element information pertinent to throughout the classification process. SSTM positions will be competitively the position. The final classification decision will be filled to ensure that selectees are 2. Occupational Series documented on the SDE. preeminent researchers and technical 5. Classification Process leaders in the specialty fields who also The present system of OPM possess substantial managerial and classification standards is used for the The SDE is developed using the supervisory abilities. identification of proper series and following process: Upon the implementation of the occupational titles of positions within a. The supervisor identifies the JWAC–DP, and periodically thereafter, the JWAC–DP. The OPM occupational organizational location, SDE number, the JWAC Commander will review series scheme, which frequently and the employee’s name. The organizational and mission provides well-recognized disciplines supervisor selects the appropriate requirements, and where appropriate, with which employees are to be occupational series, pay plan, may modify the duties of existing SSTM identified, is maintained and facilitates broadband level, and title; the level positions and/or the total number of movement of personnel into and out of factor descriptors corresponding to the SSTM positions. Consistent with 10 the JWAC–DP. Other series may be broadband level that is most U.S.C. 2358a, the total number of SSTM added as the need for new competencies commensurate with the level of positions may not exceed two percent of emerges within the JWAC environment. contribution necessary to accomplish the duties and responsibilities of the the number of scientists and engineers 3. Classification Factors and Descriptors employed at the JWAC as of the close of position; and the Defense Civilian the last fiscal year before the fiscal year Current OPM Position Classification Personnel Data System (DCPDS) in which any additional appointments Standards will not be used to grade supervisory level. The classification are made. The minimum basic pay for positions in the JWAC–DP. JWAC’s system is not hierarchical, meaning that SSTM positions is 120 percent of the factors and descriptors will describe the a supervisor’s broadband level is based minimum rate of basic pay for GS–15. level of work expected for each on the contributions the employee has Maximum SSTM basic pay with locality broadband level in each career path. made to the organization, and not based pay is limited to Executive Level III The AFRL classification factors and on the broadband level of subordinate

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employees, as is typical under other mission, the contribution level, and how determine each employee’s contribution personnel systems. Therefore, well the employee performed a job. assessment. supervisors may be at the same, lower, Contribution is defined as the measure 3. CCS Assessment Scoring or higher broadband level than the of the demonstrated value of what an employees they supervise. employee did in terms of accomplishing The annual CCS assessment scoring b. The supervisor selects a brief or advancing the organizational process begins with employee input, description of the primary purpose of objectives and mission impact. The which provides employees with an the position making sure the description purpose of the CCS is to provide an opportunity to communicate their is consistent with the series and title effective, efficient, and flexible method accomplishments and level of chosen for the position. The supervisor for assessing, compensating, and contribution to their supervisors. An chooses statements pertaining to managing the JWAC workforce. It is employee’s basic pay determines an physical requirements; competencies essential for the development of a expected score when plotted on the required to perform the work; and highly productive workforce and to appropriate career path Standard Pay special licenses or certifications needed. provide management, at the lowest Line (SPL) (discussed in section III.E.4). Based on the supervisory level of the practical level, the authority, control, Each career path has its own SPL position, the system produces and flexibility needed to achieve a based on the salary range established for mandatory statements pertaining to quality laboratory and quality products. that career path. Scores have a direct affirmative employment, safety, and The CCS allows for more employee relationship with basic pay; therefore, security programs. involvement in the assessment process, the significance of an employee’s actual c. The supervisor selects other increases communication between score is not known until it is compared position data, such as position supervisors and employees, promotes a to their expected score. For instance, an sensitivity and drug testing clear accountability of contribution, employee in the Mission Support career requirements. The supervisor also facilitates employee career progression, path with a basic pay rate of $33,091 in selects the Fair Labor Standards Act provides an understandable basis for 2018 would have an expected score of (FLSA) status. The FLSA status basic pay changes, and delinks awards 2.25, while an employee in the Business selection must be in accordance with from the annual assessment process. Management and Professional career OPM guidance and HR Specialists may The CCS process described herein path with a basic pay rate of $74,705 advise management as necessary. The applies to broadband levels I through would have the same expected score. data elements are maintained as a IV. The assessment process for The comparison between expected score separate page of the SDE (i.e., an broadband level V positions will be and OCS provides an indication of addendum) and may be changed as documented in the JWAC IOPs. equitable compensation, under- needed, without creating and classifying 2. Factors and Descriptors compensation, or overcompensation. a new SDE. (Typically, employees who are d. The supervisor makes a Each factor (e.g., Communication, overcompensated are not meeting recommended classification, then signs Technology/Business Management, contribution expectations and may be and dates the document. The supervisor Problem Solving, and Teamwork/ placed on a Contribution Improvement sends the SDE to the classification Leadership) has descriptors that Plan, described in further detail in authority for classification. The describe increasing levels of section III.F.) Broadband levels in each classification is finalized when the contribution corresponding to each career path have the same expected classification official signs and dates the broadband level. The same factors and score range, as depicted in Table 2 SDE. The SDE development process descriptors will be used for below, which also includes the 2018 incorporates definitions for the CCS classification and for the annual CCS basic pay ranges for each broadband supervisory levels, and occupational employee assessments. The factors and level. As the general basic pay rates series as appropriate. descriptors for the appropriate career increase annually, the minimum and E. Contribution-Based Compensation path will be used by the rating official maximum basic pay rates of each System (CCS) to determine the employee’s overall broadband level for each career path are contribution score (OCS). Employees adjusted accordingly. Individual 1. Overview can score within, above, or below the employees receive basic pay increases The CCS is a contribution-based range for their broadband level. For and/or bonuses based on the annual assessment system that goes beyond a example, a broadband level II employee assessments under the CCS. There are performance-based rating system. The could score in the broadband level I, II, no changes to title 5 U.S.C., regarding CCS measures the employee’s III, or IV range. Therefore, supervisors locality pay under the JWAC–DP. contribution to the organization’s utilize all factors and descriptors to BILLING CODE 5001–06–P

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4. Standard Pay Line (SPL) is a straight line which yields a The JWAC equation for the 2018 S&E reasonable correlation between basic (DR) and the Business Management and A mathematical relationship between pay rates in the broadband levels and Professional (DO) SPL is BASIC PAY = assessed contribution and basic pay will those of the corresponding GS grade(s); $21,011 + ($23,864 × CCS SCORE). be used to create the SPLs for each provides a single relationship (equation) Figure 1 provides a pictorial career path used in the CCS, similar to for the entire range of pay and OCS; and representation of the 2018 DR & DO the formulas adopted by AFRL in 75 FR demonstrates equitable (i.e., consistent) SPL. 53076, dated August 30, 2010. The SPL growth at each CCS score.

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The JWAC equation for the 2018 2018 Technician (DX) SPL is BASIC may be modified consistent with this Mission Support (DU) SPL is BASIC PAY = $2,183 + ($16,611 × CCS notice and the IOP. PAY = $7,353 + ($11,439 × CCS SCORE); as shown in Figures 2 and 3. SCORE), and JWAC equation for the The equations for future JWAC SPLs

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BILLING CODE 5001–06–C period. The preferable method for all of broadband level I, a factor score of 1.0 5. The CCS Assessment Process feedback sessions is face-to-face. is assigned. Higher levels of At the end of the annual assessment contribution are assigned factor scores The rating official is the first-level period, employees summarize their increasing in 0.1 increments up to 4.9. supervisor of record for at least 90 days contributions in each factor for their A factor score of 0.0 can be assigned if during the rating cycle. If the current rating official. Employees are highly the employee does not demonstrate a immediate supervisor has been in place encouraged to submit written self- minimum broadband level I for less than 90 days during the rating assessments identified to management, contribution. Likewise, a factor score of cycle, the next higher level supervisor to ensure that all of the employee’s 5.9 can be assigned if an employee in the employee’s rating chain who has contributions accomplished during the demonstrates a contribution that been in place for more than 90 days rating cycle are taken into exceeds the broadband level IV during the rating cycle conducts the consideration. The rating official first descriptor. Rating officials must assessment. determines preliminary CCS scores document justification for each using the employee’s input and the The annual assessment cycle begins proposed factor score. rating official’s assessment of the on September 1 and ends on August 31 employee’s overall contribution to the Factor scores are then averaged to give of the following year. At the beginning laboratory mission, based on the an overall CCS score (OCS). Each of the annual assessment period, the appropriate broadband level factor broadband level is defined for OCS from broadband level factors and descriptors descriptor. The preliminary score is 0.75 to 5.25 as shown in Table 2. The are provided to employees setting forth determined by comparing an employee’s maximum OCS for broadband level IV is the basis on which their contribution is contribution results to the descriptors set at 5.25, to be consistent with the assessed. for a particular factor and selecting the maximum overall CCS scores for other A midyear review, in the February to most appropriate general range (e.g., broadband levels (4.25 for broadband March timeframe, is conducted for high, medium, or low). level III, 3.25 for broadband level II, and employees. During this review the The rating officials (e.g., branch 2.25 for broadband level I). Therefore, employee’s professional qualities, chiefs) and the next level supervisors when the average of CCS factor scores competence, developmental needs, and (e.g., the respective division chief) then exceeds 5.25, the overall CCS score is mission contribution are discussed, as meet as a group (e.g., first-level Meeting set to 5.25, and the employee who was well as future development and career of Managers (MoM)) to review and scored above 5.25 will be identified to opportunities. Additionally, employees discuss all proposed employee upper management as having exceeded provide feedback to supervisors on their assessments and preliminary CCS factor the maximum contribution defined by supervisory qualities and skills. To scores. Giving authority to the group of the broadband. The maximum basic pay highlight its importance, all feedback managers to determine CCS factor scores for each broadband is the basic pay sessions are certified as completed by ensures that contributions are assessed corresponding with an X.25 OCS (i.e., the rating official conducting the and measured similarly for all 2.25, 3.25, 4.25, and 5.25). Once the feedback session. While one employees. During the MoM, the scores have been finalized, the pay pool documented formal midyear feedback preliminary factor scores are further manager approves the scores for the session is required, supervisors are refined into decimal scores. For entire pay pool. The pay pool manager encouraged to conduct informal example, if the employee’s contribution has the ability to look across the entire feedback sessions throughout the rating level for a factor is at the lowest level pay pool and may address anomalies

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through the appropriate management 6. Pay Pools (Personnel & Readiness) has discretion chain. The pay pool structure is under the to adjust the minimum funding levels to If, on September 1, an employee has authority of the JWAC Commander who, take into account factors such as the been covered by the CCS for less than in-turn, may delegate this authority. The Department’s fiscal condition, guidance 90 days, the rating official waits for the following guidelines apply to pay pools: from the Office of Management and subsequent annual cycle to assess the (a) A pay pool is based on the JWAC Budget, and equity in circumstances employee. Such an employee is organizational structure and should when funding is reduced or eliminated considered ‘‘presumptive due to time’’ include a range of basic pay rates and for GS pay raises or awards. and is assigned a score at the broadband levels; (b) a pay pool must be 7. Basic Pay Adjustment Guidelines intersection of their basic pay and the large enough to constitute a reasonable SPL. Periods of approved, paid leave are statistical sample, i.e., 35 or more The maximum basic pay for any counted toward this 90-day time period. employees; (c) a pay pool must be large employee is limited to GS–15, step 10, When an employee cannot be evaluated enough to encompass a second level of except for employees in SSTM readily by the normal CCS assessment supervision since the CCS process uses positions. Any employee whose basic process due to special circumstances a group of supervisors in the pay pool pay would exceed GS–15, step 10, based that take the employee away from to determine assessments and on the employee’s OCS, will be normal duties or duty station (e.g., long- recommend basic pay adjustments; (d) identified to upper management as term full-time training, extended sick the pay pool manager holds annual pay having exceeded the maximum leave, leave without pay, etc.), the rating adjustment authority; and (e) neither the allowable basic pay and will be paid a official documents the rating as pay pool manager nor the supervisors bonus to cover any difference between ‘‘presumptive due to circumstance’’ in within the pay pool recommend or set the GS–15, step 10, basic pay and the the CCS software. The rating official their own individual pay. basic pay associated with the then assesses the employee using one of The amount of money available for employee’s OCS. There are no changes the following options: basic pay increases within a pay pool is to 5 U.S.C., regarding locality pay under • Recertify the employee’s last OCS; determined by the amount of the general the JWAC–DP. or increase (‘‘G’’) authorized by law or the • Assign a score at the intersection of President for the GS under 5 U.S.C. Employees’ OCSs are determined by the employee’s basic pay and the SPL. 5303, and an incentive amount (‘‘I’’) the CCS assessment process described Basic pay adjustments, i.e., decisions drawn from money that, under the GS in Section III.E.3. Employees’ OCSs are to give or withhold basic pay increases system, would be available for step plotted on the appropriate SPL graph or bonuses, are based on the increases and career ladder promotions. based on their current basic pay as relationship between the employee’s The incentive amount is set by the PPB shown in Figure 5. The position of those actual CCS score and the employee’s each year and is adjustable to ensure points in relation to the SPL provides a current basic pay (as discussed in cost discipline over the life of the relative measure (Delta Y) of the degree section III.E.5). Decisions for seamless JWAC–DP. The dollars derived from of over-compensation or under- broadband movement (discussed in ‘‘G’’ and ‘‘I’’ percentages included in the compensation for each employee. This section III.E.6.) are also based on this pay pool are computed based on the process permits all employees within a relationship. Final pay determinations basic pay of eligible employees in the pay pool to be rank-ordered by Delta Y, and broadband level changes are made pay pool as of August 31 of each year. from the most undercompensated by the pay pool manager. The Under Secretary of Defense employee to the most overcompensated.

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In general, those employees who fall guidance from the PPB. Decisions will broadband level factor and descriptors. below the SPL (indicating under- be consistent in the pay pool within If an employee’s contributions impact compensation; for example, employee X these general rules: final decisions are and broaden the scope, nature, intent, in Figure 5) should expect to receive standard and consistent within the pay and expectations of the position and are greater basic pay increases than those pool; are fair and equitable across the reflective of higher level factors and who fall above the line (indicating organization; and maintain cost descriptors, the classification of the overcompensation; for example, discipline. position is updated accordingly. This employee Z in Figure 5). An OCS that form of movement through broadband 8. Broadband Level Movements falls on either rail is considered to be levels is referred to as a seamless within the rails. Over time, employees A key concept of the JWAC–DP is that broadband movement and can only will migrate closer to the SPL. The career growth may be accomplished by happen within the same career path; following provides more specific seamless broadband movement, i.e., employees cannot cross over career guidelines: (a) Employees who fall movement through the broadband levels paths through this process. The criteria above the upper rail (for example, within a particular career path by is similar to that used in an accretion of employee Z in Figure 5) are given an significantly increasing levels of duties scenario and must be met for an increase ranging from zero to a employee contribution toward the employee to move seamlessly to a maximum of the dollar amount JWAC mission. Seamless broadband higher broadband level. For seamless determined by the ‘‘G’’ percentage level movement may occur once a year broadband movement to occur: (1) The increase; (b) those who fall within the during the CCS process, if certain employee’s current position must be rails (for example, employee Y in Figure conditions are met. An employee’s absorbed into a reclassified position, 5) are given a minimum of the dollar contribution is a reflection of their OCS, while the employee continues to amount determined by the ‘‘G’’ which is derived from a comparison of perform the same basic duties and percentage increase; and (c) those who the employee’s contribution to each of responsibilities (although at the higher fall below the lower rail (for example, the factors and descriptors. Because the level); and (2) the employee’s current employee X in Figure 5) are given at descriptors are written at progressively position must be reclassified to a higher least their basic pay multiplied by ‘‘G’’ higher levels of work and are the same broadband level as a result of and ‘‘I’’ percentages. The pay pool descriptors used in the classification additional, higher- level duties and manager may give a CCS bonus (a lump process, higher scores reflect that an responsibilities. It may take a number of sum payment made to an employee in employee’s contribution is equivalent to years for contribution levels to increase lieu of a basic pay increase as part of the the level associated with the score they to the extent a seamless broadband CCS assessment process) to an employee are awarded. An employee’s broadband movement is warranted, and not all as compensation, in whole or part. This level may be increased when an employees achieve the increased may be appropriate in a situation when employee consistently contributes at a contribution levels required for such the employee’s continued contribution level consistent with the expectations moves. at this level is uncertain. The CCS for a higher broadband level than the This simplified classification and Bonus criteria will be documented in one to which the employee is currently broadbanding structure allows JWAC IOPs. assigned, such as through increased management to assign duties consistent The pay pool manager sets the expertise and by performing expanded with the broadband level of a position necessary guidelines for pay duties and responsibilities without the necessity to process a adjustments in the pay pool based on commensurate with the higher personnel action and provides managers

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authority to move employees between than being undercompensated at a fixed copy of this memorandum is provided positions within their current level of contribution. to the employee and to higher levels of broadband level, at any time during the To handle these special management. year. However, management also has the circumstances, employees must submit The second option is to take a formal option to fill vacancies throughout the a request for voluntary pay reduction or action by placing the employee on a year using various staffing alternatives, pay raise declination during the 30-day Contribution Improvement Plan (CIP), to include details, reassignments, or period immediately following the providing the employee an opportunity competitive selection procedures (as annual payout and document the to improve. The CIP must inform the applicable and/or required) for reasons for the request. The pay pool employee, in writing, that unless the competitive promotions or temporary manager may consider voluntary pay employee’s contribution increases and promotions (typically used for filling reductions at other times throughout the is sustained at the expected contribution supervisory positions). Employees may year, as documented in internal level, the employee may be reduced in be considered for vacancies at higher operating procedures. Management pay or removed. The supervisor will broadband level positions consistent must properly document all decisions to afford the employee a reasonable with the JWAC–DP competitive approve or disapprove such requests. improvement opportunity period, selection procedures. This type of basic pay change is not generally 30 days, to demonstrate Any resulting changes in broadband considered to be an adverse personnel increased contribution commensurate levels that occur through the CCS action. with the duties and responsibilities of process are not accompanied by pay the employee’s position. As part of an F. Dealing With Inadequate increases normally associated with employee’s opportunity to demonstrate Contributions formal promotion actions, but, rather, increased contribution, management are processed and documented with a The CCS is a contribution-based will offer appropriate assistance to the pay adjustment action to include assessment system that goes beyond a employee. appropriate changes/remarks (e.g., performance-based rating system. If an employee has been placed on a change in title (if appropriate), change Contribution is measured against CIP and afforded a reasonable in broadband level, and classification of factors, with each factor having opportunity to demonstrate increased a new SDE). The terms ‘‘promotion’’ and descriptors that describe increasing contribution, yet fails to do so, ‘‘demotion’’ are not used in connection levels of contribution corresponding to management has sole and exclusive with the CCS process. the broadband level. Employees are discretion to initiate reduction in pay or The broadbanding structure creates an plotted against the SPL based on their removal for that employee. If the overlap between adjacent broadband score and current basic pay, which employee’s contribution increases to a levels that facilitates broadband determines the amount of over- higher level during the opportunity movement. For instance, the minimum compensation or under compensation period and is again determined to basic pay for a broadband level I is that the employees are receiving. When an deteriorate in any area within two years basic pay from the SPL corresponding to employee’s contribution plots in the from the beginning of the improvement a CCS score of 0.75. And the maximum area above the upper rail of the SPL opportunity period, management has basic pay for broadband level I is that (Section III.E.3.), the employee is sole and exclusive discretion to initiate basic pay from the SPL corresponding to overcompensated for their level of a reduction in pay or removal with no a CCS score of 2.25. The minimum basic contribution and is considered to be in additional opportunity to improve. If an pay for broadband level II is that basic the Automatic Attention Zone (AAZ). employee has contributed appropriately pay from the SPL corresponding to a This section addresses reduction in for two years (or longer) from the CCS score of 1.75. And the maximum pay or removal of JWAC–DP employees beginning of an improvement basic pay for broadband level II is that based solely on inadequate contribution, opportunity period and the employee’s basic pay from the SPL corresponding to as determined by the amount an overall contribution once again a CCS score of 3.25. Likewise, the employee is overcompensated. The declines, management will afford the minimum basic pay for broadband level following procedures are similar to and employee an additional improvement III is that basic pay from the SPL replace those established in 5 CFR part opportunity period to demonstrate corresponding to a CCS score of 2.75, 432 pertaining to performance-based increased contribution before and so on for the different broadband reduction in grade and removal actions. determining whether or not to propose levels. This structure provides a basic Adverse action procedures under 5 CFR a reduction in pay or removal. pay overlap between broadband levels part 752 remain unchanged. The An employee is entitled to at least a that is consistent with, and similar to, immediate supervisor has two options 30-day advance notice of a proposed basic pay overlaps in the GS schedule. when an employee’s contribution plots reduction in pay or removal action. This in the AAZ. The first option is advanced notice will identify specific 9. Voluntary Pay Reduction and Pay document the employee’s inadequate instances of the employee’s inadequate Raise Declination contributions in a memorandum for contribution. The employee will be Under CCS, an employee may record. In this memorandum, the afforded a reasonable time (as stated in voluntarily request a pay reduction or a supervisor should state, in writing, the 5 U.S.C. 7513(b)(2)), but not less than voluntary declination of a pay raise specifics regarding where the employee seven days, to answer the notice of which would effectively place an failed to contribute at an adequate level proposed action, which may be done overcompensated employee’s pay closer and provide a rationale for not taking a orally and/or in writing, at the to the SPL. Since an objective of the formal action. Examples where this employee’s discretion. CCS is to properly compensate might be used are when an employee’s A decision to reduce pay or remove employees for their contribution to the contribution plots just above the upper an employee for inadequate JWAC, granting such requests is rail of the SPL, or extenuating contribution may only be based on those consistent with this goal. Under normal circumstances exist that may have instances of inadequate contribution circumstances, all employees should be decreased the employee’s overall CCS that occurred during the two-year encouraged to advance their careers score during the rating period and are period immediately preceding the date through increasing contribution rather expected to be temporary in nature. A of the notice of proposed action is

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issued. Management will issue a written assignment. The JWAC Commander will participant’s service credit for such notice of its decision on reduction in document the decision process for each purposes as retirement, severance pay, pay or removal to the employee at or candidate and retain selection and non- and leave as a result of being a before the time the action will be selection documentation for the participant in the Volunteer Emeritus effective. This notice will specify the duration of the assignment or two years, Corps, instances of inadequate contribution by whichever is longer. h. A provision allowing either party to the employee on which the action is To ensure success and encourage void the agreement with 10 working based and will inform the employee of participation, the volunteer’s federal days written notice; any applicable appeal or grievance retirement pay (whether military or i. The level of security access required rights as specified in 5 CFR 432.106. civilian) will not be affected while (any security clearance required by the Management will preserve all relevant serving in a volunteer capacity. Retired assignment will be managed by the documentation concerning a reduction or separated federal employees may JWAC while the participant is a member in pay or removal based on inadequate accept an emeritus position without a of the Volunteer Emeritus Corps); contribution and make the relevant break or mandatory waiting period. j. A provision that any written documentation available for review by Volunteers will not be permitted to products prepared for publication that the affected employee and/or the monitor contracts on behalf of the are related to Volunteer Emeritus Corps employee’s designated representative. government or to participate on any participation will be submitted to the At a minimum, the documentation will contracts or solicitations where a JWAC Commander for review and must consist of a copy of the notice of conflict of interest exists. The same be approved prior to publication; proposed action; the employee’s written rules that currently apply to source k. A statement that the Volunteer answer or a written summary of the selection members will apply to Emeritus Corps participant accepts employee’s oral reply; and the written volunteers. accountability for loss or damage to notice of decision to take the action, An agreement will be established Government property occasioned by the including the reasons therefore, along between the volunteer, the JWAC Volunteer Emeritus Corps participant’s with any supporting material including Commander, and the JWAC/J1. The negligence or willful action; documentation regarding the agreement will be reviewed by the 1. A statement that the activities of opportunity afforded the employee to USSTRATCOM Legal Office. The the Volunteer Emeritus Corps demonstrate increased contribution. agreement must be finalized before the participant on the premises will assumption of duties and will include: conform to the JWAC’s regulations and G. Voluntary Emeritus Corps a. A statement that the service requirements; The JWAC Commander has the provided is gratuitous, that the m. A statement that the Volunteer authority to offer former Federal volunteer assignment does not Emeritus Corps participant will not employees who have retired or constitute an appointment in the civil improperly use or disclose any non- separated from the Federal service, service and is without compensation or public information, to include any pre- voluntary assignments at JWAC. other benefits except as provided for in decisional or draft deliberative Voluntary Emeritus Corps assignments the agreement itself, and that, except as information related to DoD are not considered ‘‘employment’’ by provided in the agreement regarding programming, budgeting, resourcing, the Federal government (except as work-related injury compensation, any acquisition, procurement or other indicated below). Thus, such and all claims against the Government matter, for the benefit or advantage of assignments do not affect an employee’s (stemming from or in connection with the Volunteer Emeritus Corps entitlement to buyouts or severance the volunteer assignment) are waived by participant or any non-Federal entities. payments based on an earlier separation the volunteer; Volunteer Emeritus Corps participants from Federal service. The Volunteer b. A statement that the volunteer will will handle all non-public information Emeritus Corps will ensure continued be considered a federal employee for the in a manner that reduces the possibility quality research while reducing the purpose of: of improper disclosure; overall salary line by allowing higher (1) 18 U.S.C. 201, 203, 205, 207, 208, n. A statement that the Volunteer paid individuals to accept retirement 209, 603, 606, 607, 643, 654, 1905, and Emeritus Corps participant agrees to incentives with the opportunity to 1913; disclose any inventions made in the retain a presence in the scientific (2) 31 U.S.C. 1343, 1344, and 1349(b); course of work performed at the JWAC. community. This authority will be of (3) 5 U.S.C. chapters 73 and 81; The JWAC Commander will have the (4) The Ethics in Government Act of most benefit during manpower option to obtain title to any such reductions as senior employees could 1978; (5) 41 U.S.C. chapter 21; invention on behalf of the U.S. accept retirement and return to provide (6) 28 U.S.C. chapter 171 (tort claims Government. Should the JWAC valuable on-the-job training or procedure), and any other Federal tort Commander elect not to take title, the mentoring to less experienced liability statute; JWAC will retain a non-exclusive, employees. Volunteer service will not (7) 5 U.S.C. 552a (records maintained irrevocable, paid up, royalty-free license be used to replace any employee, or on individuals); and to practice or have practiced the interfere with career opportunities of c. The Volunteer Emeritus/Corps invention worldwide on behalf of the employees. The Volunteer Emeritus participant’s work schedule; U.S. Government; Corps may not be used to replace or d. The length of agreement (defined o. A statement that the Volunteer substitute for work performed by by length of project or time defined by Emeritus Corps participant must civilian employees occupying regular weeks, months, or years); complete either a Confidential or Public positions required to perform the e. The support to be provided by the Financial Disclosure Report, whichever JWAC’s mission. JWAC (travel, administrative, office applies, and ethics training in To be accepted into the Volunteer space, supplies); accordance with office of Government Emeritus Corps, a volunteer must be f. The Volunteer Emeritus Corps Ethics regulations prior to recommended by a JWAC manager to participant’s duties, implementation of the agreement; and the JWAC Commander. Everyone who g. A provision that states no p. A statement that the Volunteer applies is not entitled to a volunteer additional time will be added to a Emeritus Corps participant must receive

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post-government employment advice tailored to the needs of supervisors, pay rate which is computed by dividing from a DoD ethics counselor at the employees, and the administrative staff their highest adjusted basic pay (i.e., conclusion of program participation. responsible for assisting managers in special pay rate or, if higher, the locality Volunteer Emeritus Program effecting the changeover and operating rate) by one plus the locality pay participants are deemed Federal the new system. At a minimum, the percentage for their area. The new basic employees for purposes of post- following subjects will be covered: pay rate is then multiplied by the government employment restrictions. • An overview of the JWAC–DP locality pay percentage and the result is personnel system. H. Employee Development added to the new basic pay rate to • How employees are converted into obtain the adjusted basic pay, which is 1. Training for Degrees: degree and out of the system. equal to the adjusted basic pay prior to training is an essential component of an • Broadbanding. conversion. organization that requires continuous • The Contribution-based Grade and pay retention entitlements acquisition of advanced and specialized Compensation System. are eliminated. At the time of knowledge. Degree training in the V. Conversion conversion, an employee on grade academic environment of laboratories is retention will be converted to the career also a critical tool for recruiting and A. Conversion to the Demonstration path and broadband level based on the retaining employees with critical skills. Project employee’s assigned position, not the Constraints under current law and Initial entry into the JWAC–DP for retained grade. The employee’s basic regulation limit degree payment to pay and adjusted basic pay while on shortage occupations. In addition, covered employees is accomplished through a full employee protection grade retention status will be used in current government-wide regulations setting appropriate pay upon conversion authorize payment for degrees based approach that ensures each employee an initial place in the appropriate to the JWAC–DP and in determining the only on recruitment or retention needs. amount of any WGI equity adjustment. Degree payment is currently not broadband level without loss of pay. Employees are converted into the career An employee’s adjusted basic pay will permitted for non-shortage occupations not be reduced upon conversion. involving critical skills. path and broadband level which Under the JWAC–DP, JWAC will corresponds to their permanent GS B. Conversion to Another Personnel expand the authority to provide degree grade and occupational series of their System current appointment (temporary training for purposes of meeting critical 1. Demonstration Project Termination skill requirements, to ensure continuous promotions are not retained), unless acquisition of advanced and specialized there are extenuating circumstances In the event the JWAC–DP ends, a knowledge essential to the organization, which require individual attention, such conversion back to the former (or and to recruit and retain personnel as special pay rates or pay retention. another applicable) Federal Civil critical to the present and future Adverse action provisions do not apply Service system may be required. The requirements of the organization. It is to the conversion process as there is no grade of employees’ positions in the expected that the degree payment change in total adjusted pay. new system will be based upon the authority will be used primarily for Under the GS pay structure, position classification criteria of the attainment of advanced degrees. successful employees automatically gaining system. Employees, when 2. Sabbaticals: JWAC will have the progress, from step 1 to 10, within converted to positions classified under authority to grant paid sabbaticals to grade, in periodic increments. In the the new system, may be eligible for pay career employees to permit them to JWAC–DP, basic pay progression within retention under 5 CFR part 536, if engage in study or uncompensated work and through the broadband levels applicable. experience that will contribute to their depends on contribution to the mission, However, an employee will not be development and effectiveness. Each and there are no automatic within-grade provided a lower grade than the grade sabbatical should benefit JWAC as well increases (WGIs). Rules governing WGIs held by the employee immediately as increase the employee’s individual under the current DAF performance preceding conversion, lateral effectiveness. Examples are as follows: plan will continue in effect until the reassignment, or lateral transfer into the advanced academic teaching, study, or implementation date. Adjustments to JWAC–DP, unless since that time the research; self-directed (independent) or the employees’ basic pay for WGI equity employee has undergone either a guided study; and on-the-job work will be computed effective the date of reduction in broadband level or a experience with a public, private, or conversion to the JWAC–DP. WGI equity reduction in basic pay within the same nonprofit organization. Each recipient of is acknowledged by increasing basic pay broadband due to unacceptable a sabbatical must sign a continued rates by a prorated share based upon the contribution. service agreement and agree to serve a number of days the employee has performed at a successful level for 2. Conversion or Movement from a period equal to at least three times the Project Position to a General Schedule length of the sabbatical. purposes of eligibility for the next higher step under the GS system. Position: IV. JWAC—DP Training Employees at step 10 on the date of If a demonstration project employee is The key to the success of the JWAC– conversion are not eligible for WGI moving to a GS position not under the DP will be the training provided for all equity adjustments since they are demonstration project, or if the project involved. This training format and already at the top step of the ends and all project employees must be content will provide the workforce with corresponding GS pay grade. converted back to the GS system, the the knowledge and skills necessary to All employees are eligible for future following procedures will be used to implement the proposed changes and locality pay increases for the convert the employee’s broadband level foster participant commitment to the geographical areas of their official duty to a GS-equivalent grade and the program station. Special salary rates are not employee’s JWAC–DP basic pay to the Training, which will begin prior to applicable to JWAC–DP employees. GS-equivalent rate of pay for pay setting implementation and continue Employees on special salary rates at the purposes. The equivalent GS grade and throughout the JWAC–DP, will be time of conversion receive a new basic GS rate of pay must be determined

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before movement or conversion out of JWAC–DP. The JWAC–DP evaluation evaluation of the effectiveness of the the JWAC–DP and any accompanying plan adequately addresses how each flexibilities. However, the main focus of geographic movement, promotion, or flexibility is comprehensively the evaluation will be on intermediate other simultaneous action. evaluated. outcomes, i.e., the results of specific An employee in a broadband level Many aspects of a Demonstration personnel system changes which are corresponding to a single GS grade is Project are experimental. Minor expected to improve human resources placed into that grade as the GS- modifications may be made from time to management. The ultimate outcomes are equivalent grade. An employee in a time as experience is gained, results are defined as improved organizational analyzed, and conclusions are reached broadband corresponding to two or effectiveness, mission accomplishment, on how the system is working. more grades is determined to have a GS and JWAC customer satisfaction. equivalent grade corresponding to one VII. Evaluation Plan of those grades according to the C. Method of Data Collection following rules: A. Overview Data from a variety of different The employee’s adjusted basic pay Chapter 47 of title 5 U.S.C. requires under the JWAC–DP (including any that an evaluation be performed to sources will be used in the evaluation. locality payment) is compared with step measure the effectiveness of the Information from existing management 4 rates in the highest applicable GS rate demonstration project, and its impact on information systems supplemented with range. For this purpose, a GS rate range improving public management. A perceptual survey data from employees includes a rate in: comprehensive evaluation plan for the will be used to assess variables related a. the GS base schedule; entire STRL demonstration program, to effectiveness. Multiple methods b. the locality rate schedule for the originally covering 24 DoD laboratories, provide more than one perspective on locality pay area in which the position was developed by a joint OPM/DoD how the JWAC–DP is working. is located; or Evaluation Committee in 1995. This Information gathered through one c. the appropriate special rate plan was submitted to the Office of method will be used to validate schedule for the employee’s Defense Research & Engineering and information gathered through another. occupational series, as applicable. was subsequently approved. The main Confidence in the findings will increase If the series is a two-grade interval purpose of the evaluation is to as they are substantiated by the different series, only odd-numbered grades are determine whether the waivers granted collection methods. The following types considered below GS–11. result in a more effective personnel of qualitative and/or quantitative data 3. For lateral reassignments, the system and improvements in ultimate may be collected as part of the equivalent GS grade and rate will outcomes (i.e., organizational evaluation: (1) Workforce data; (2) become the employee’s converted GS effectiveness, mission accomplishment, personnel office data; (3) employee grade and rate after leaving the JWAC– and customer satisfaction). That plan, attitudes and feedback using surveys, DP (before any other action). while useful, is dated and does not fully For transfers, promotions, and other afford the laboratories the ability to structured interviews, and focus groups; actions, the converted GS grade and rate evaluate all aspects of the (4) local activity histories; and/or, (5) will be used in applying any GS pay demonstration project in a way that core measures of laboratory administration rules applicable in fully facilitates assessment and effective effectiveness. connection with the employee’s modification based on actionable data. VIII. Demonstration Project Costs movement out of the JWAC–DP (e.g., Therefore, in conducting the evaluation promotion rules, highest previous rate JWAC will ensure USD(R&E) evaluation Costs associated with the rules, and/or pay retention rules), as if requirements are met in addition to development of the JWAC–DP system the GS converted grade and rate were applying knowledge gained from other include software automation, training, actually in effect immediately before the DoD laboratories and their evaluations and project evaluation. All funding will employee left the JWAC–DP. to ensure a timely, useful evaluation of be provided through JWAC’s budget. VI. Project Duration and Changes the demonstration project. The timing of the expenditures depends on the implementation schedule. The Pub. L. 103–337 removed the B. Evaluation Model projected annual expenses for each area mandatory expiration date for STRL An evaluation model for the JWAC– Demonstration Projects, such as the DP will identify elements critical to an is summarized in Table 2.

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IX. Required Waivers to Law and Period. This section waived only to the 20. Chapter 53, sections 5301–5307: Regulation extent necessary to replace ‘‘grade’’ with Related to pay comparability system and Public Law 103–337 gave the DoD the ‘‘broadband level.’’ GS pay rates. Waived to the extent authority to experiment with several 10. Chapter 33, section 3324 and necessary to allow JWAC–DP personnel management innovations. In section 3325: Appointments to Positions employees, including SSTM employees, addition to the authorities granted by Classified Above GS–15. Waived in to be treated as GS employees, and to the law, the following are the waivers of entirety to allow SSTM authority as allow basic rates of pay under the law and regulation that will be described in this FRN and 79 FR 43722. demonstration project to be treated as necessary for implementation of the 11. Chapter 33, section 3327: Civil scheduled rates of pay. SSTM pay will JWAC–DP. In due course, additional service employment information. not exceed EX–IV and locality adjusted laws and regulations may be identified Waived to the extent necessary to allow SSTM rates will not exceed EX III. for waiver requests. public notice other than USAJobs for the 21. Chapter 53, sections 5331–5336: The following waivers and Distinguished Scholastic Achievement General Schedule pay rates. These adaptations of certain 5 U.S.C. Authority described in this FRN. waivers apply to the extent necessary to: provisions are required only to the 12. Chapter 33, section 3330: (1) Allow JWAC–DP employees to be extent that these statutory provisions Government-wide list of vacant treated as GS employees; (2) allow the limit or are inconsistent with the actions positions. Waived to the extent provisions of this FRN pertaining to contemplated under this demonstration necessary to allow public notice other setting rates of pay; and (3) waive project. Nothing in this plan is intended than USAJobs for the Distinguished sections 5335 and 5336 in their entirety. to preclude the JWAC–DP from adopting Scholastic Achievement Authority 22. Chapter 53, sections 5361–5366: or incorporating any law or regulation described in this FRN. Grade and pay retention. Waived to the enacted, adopted, or amended after the 13. Chapter 33, section 3341: Details. extent necessary to allow for the effective date of this demonstration This waiver applies to the extent elimination of pay and grade retention project. necessary to waive the time limits for provisions as described in this FRN. details. 23. Chapter 55, section 5542(a)(1)–(2): A. Title 5, United States Code 14. Chapter 35, section 3522: Agency Overtime rates; computation. These 1. Chapter 5, section 522a: Records. VSIP Plans approval. Waived to remove sections are adapted only to the extent Waived to the extent required to clarify the requirement to submit a plan to necessary to provide that the GS–10 that volunteers under the Voluntary OPM prior to obligating any resources minimum special rate (if any) for the Emeritus Corps are considered for voluntary separation incentive special rate category to which a project employees of the Federal government payments. employee belongs is deemed to be the for purposes of this section. 15. Chapter 35, section 3523(b)(3): ‘‘applicable special rate’’ in applying the 2. Chapter 29, section 2903: Oath; Related to voluntary separation pay cap provisions in 5 U.S.C. 5542. authority to administer. Waived insofar incentive payments. Waived to the 24. Chapter 55, section 5545(d): as the JWAC Commander may extent necessary to utilize the Hazardous duty differential. This waiver administer the oath of office. authorities authorized in 82 FR 43339. applies only to the extent necessary to 3. Chapter 31, section 3104: 16. Chapter 41, section 4107: Pay for allow JWAC–DP employees to be treated Employment of Specially Qualified Degrees. Waived to the extent necessary as GS employees. Scientific and Professional Personnel. to allow degree training under the 25. Chapter 57, section 5753: Waived to allow SSTM authority as Developmental Opportunities described Recruitment and Relocation Bonuses. described in this FRN and 79 FR 43722. in this FRN. Waived to the extent necessary to allow 4. Chapter 31, section 3132: The 17. Chapter 41, section 4108. JWAC–DP employees, including SSTM Senior Executive Service; Definitions Employee Agreements; Service after employees, to be treated as GS and exclusions. Waived to allow SSTM Training. Waived to the extent employees. authority as described in this FRN and necessary to (1) provide that the 26. Chapter 57, section 5754: 79 FR 43722. employee’s service obligation is to Relocation Bonuses. Waived to the 5. Chapter 33, Subchapter 1, JWAC for the period of the required extent necessary to allow provisions of Examination, Certification, and service; (2) permit the JWAC the retention counteroffer and Appointment. Waived to the extent Commander to waive in whole or in part incentives as described in this FRN. necessary to utilize the authorities a right of recovery; and (3) require an 27. Chapter 57, section 5755: authorized in 82 FR 43339. employee in the student educational Supervisory Differentials. Waived to the 6. Chapter 33, section 3308: employment program who has received extent necessary to allow SSTM Competitive Service; Examinations; tuition assistance to sign a service supervisory pay differential provisions Educational Requirements Prohibited. agreement up to three times the length as described in 79 FR 43722. This section is waived with respect to of the training. 28. Chapter 75, sections 7501(1), the scholastic achievement appointment 18. Chapter 43, sections 4301–4305: 7511(a)(1)(A)(ii), and 7511(a)(1)(C)(ii): authority. Related to performance appraisal. These Adverse Actions—Definitions. Waived 7. Chapter 33, section 3317(a), sections are waived to the extent to the extent necessary to: (1) Allow for Competitive Service; certification from necessary to allow provisions of the up to a three-year probationary period, registers. Waived insofar as ‘‘rule of Contribution-based Compensation (2) remove the reference to one year of three’’ is eliminated. System as described in this FRN. current continuous service, and (3) 8. Chapter 33, section 3318(a), 19. Chapter 51, sections 5101–5112: permit termination during the extended Competitive Service; selection from Related to classification standards and probationary period without using certificates. Waived insofar as ‘‘rule of grading. Waived to the extent that white adverse action procedures for those three’’ is eliminated under the JWAC– collar employees will be covered by the employees serving a probationary DP. broadbanding system and to the extent period under an initial appointment 9. Chapter 33, section 3321: necessary to allow classification except for those with veterans’ Competitive Service; Probationary provisions described in this FRN. preference.

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29. Chapter 75, section 7512(3): the hiring and appointment authorities Schedule. Waived to the extent Adverse actions. This waiver applies as described in this FRN; (4) eliminate necessary to allow classification only to the extent necessary to replace the ‘‘rule of three’’ requirement; and (5) provisions outlined in this FRN, to ‘‘grade’’ with ‘‘broadband level’’ and to to extend the length of details and include the list of issues that are neither exclude reductions in broadband level temporary promotions without requiring appealable nor reviewable, the not accompanied by a reduction in pay. competitive procedures as described in assignment of series under the JWAC– 30. Chapter 75, section 7512(4): this FRN. DP plan to appropriate career paths; and Adverse actions. This waiver applies 9. Part 337.101(a): Rating applicants. to allow informal appeals to be decided only to the extent necessary to provide Waived to the extent necessary to allow by the JWAC Commander. that adverse action provisions do not referral without rating when there are 15 17. Part 530, Subpart C: Special salary apply to conversions from GS special or fewer qualified candidates and no rates. Waived in its entirety. rates to JWAC–DP pay, as long as total qualified preference eligible candidates. 18. Part 531, Subparts B, D, and E: pay is not reduced. 10. Part 338.301: Competitive service Determining rate of basic pay, within- 31. Chapter 99, section 9902(f): appointment. Waived to allow for grade increases, and quality step Related to voluntary separation Distinguished Scholastic Achievement increases. Waived in its entirety. incentive payments. Waived to the Authority grade point average extent necessary to utilize the requirements as described in this FRN. 19. Part 531, Subpart F: Locality pay. authorities authorized in 82 FR 43339. 11. Part 359.705: Removal from the This waiver applies only to the extent Executive Service, Pay. Waived to allow necessary to allow JWAC–DP B. Title 5, Code of Federal Regulations demonstration project rules governing employees, including SSTMs, to be 1. Part 300, Employment (General), pay retention to apply to a former SES treated as GS employees, and basic rates other than Subpart G of Part 300. employee placed in an SSTM or of pay under the demonstration project Waived to the extent necessary to allow broadband level IV position. to be treated as scheduled annual rates provisions of the direct hire authorities 12. Part 410, section 410.308(a–f): of pay. This waiver does not apply to ST as described in 79 FR 43722 and 82 FR Training to obtain an academic degree. employees who continue to be covered 29280. Waived to the extent necessary to allow by these provisions, as appropriate. 2. Part 300.601–300.605: Time-in- provisions described in this FRN. 20. Part 536: Grade and pay retention. Grade requirements. Waived to 13. Part 410, section 309: Agreements Waived to the extent necessary to allow eliminate time-in-grade restrictions. to continue in Service. This waiver the maintained pay provisions 3. Part 315.801–315.802: Probationary applies to that portion that pertains to described in this FRN and to allow Period. Waived to allow the extended the authority of the head of the agency personnel in SSTM positions to receive probationary period. to determine continued service maintained pay as described in this 4. Part 315.803(b): Agency Action requirements, to waive repayment of FRN. during probationary period (general). such requirements, and to the extent 21. Part 550.703: Severance Pay. This Waived to allow for termination during that the service obligation is to JWAC. waiver applies only to the extent an extended probationary period 14. Part 430, Subpart B: Performance necessary to modify the definition of without using adverse action procedures Appraisal for General Schedule, ‘‘reasonable offer’’ by replacing ‘‘two under subpart D of part 752, 5 U.S.C. Prevailing Rate, and Certain Other grades or pay levels’’ with ‘‘one band 5. Part 315, section 315.901 and Employees. Waived to the extent level’’ and ‘‘grade or pay level’’ with 315.907: Statutory requirements. This necessary to apply the Contribution- ‘‘band level.’’ waiver applies only to the extent based Compensation System described necessary to replace ‘‘grade’’ with in this FRN. 22. Part 575, subparts A, B, and C: ‘‘broadband level.’’ 15. Part 432.102–432.105: Related to Recruitment Incentives, Relocation 6. Part 316, sections 316.301, 316.303, performance based actions. (1) Modified Incentives, and Retention Incentives. and 316.304: Term Employment. to the extent that an employee may be Waived to the extent necessary to allow Waived to the extent necessary to allow removed, reduced in broadband level employees and positions under the Flexible Length and Renewable Term with a reduction in pay, reduced in pay JWAC–DP covered by the broadbanding Technical Appointments as described in without a reduction in broadband level system to be treated as employees and this FRN and in 82 FR 43339. and reduced in broadband level without positions under the GS system. 7. Part 330.103–330.105: Related to a reduction in pay based on 23. Part 752, sections 752.201 and filling vacancies. Waived to the extent unacceptable performance; (2) modified 752.401: Principal statutory necessary to allow the STRL to publish to delete reference to critical element; requirements and coverage. Waived to competitive announcements outside of (3) waived to the extent necessary to the extent necessary to: (1) Allow USAJobs. replace ‘‘grade’’ with ‘‘broadband’’; (4) extended probationary periods and to 8. Part 332 and 335: Related to waived to exclude reductions in permit termination during the extended competitive examination and agency broadband level not accompanied by a probationary period without using promotion programs. Waived to the reduction in pay; (5) allow provisions of adverse action procedures for those extent necessary to (1) allow employees CCS and addressing inadequate individuals serving a probationary appointed on a Flexible Length and contribution as described in this FRN; period under an initial appointment; (2) Renewable Term Technical and (6) waive ‘‘If an employee has replace ‘‘grade’’ with ‘‘broadband level’’; Appointment to apply for federal performed acceptably for 1 year’’ to and (3) provide that adverse action positions as status candidates; (2) allow allow for ‘‘within two years’’ from the provisions do not apply to conversions no rating and ranking when there are 15 beginning of an opportunity period. from GS special rates to JWAC–DP pay, or fewer qualified applicants and no 16. Part 511 Subpart A, B, and F: so long as total pay is not reduced. preference eligible candidates; (3) allow Classification Under the General BILLING CODE 5001–01–P

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Dated: May 12, 2020. Department’s obligation to publicize its 421(b) waivers). It is not possible to Aaron T. Siegel, waiver decisions by identifying the obligate funds on a timely basis, as Alternate OSD Federal Register Liaison waivers granted under section 3511. originally planned, due to extensive Officer, Department of Defense. The Department has approved school and program disruptions in the [FR Doc. 2020–10481 Filed 5–14–20; 8:45 am] waivers of the following requirement: States. These disruptions are in BILLING CODE 5001–06–C Section 421(b) of the General Education response to extraordinary circumstances Provisions Act (GEPA) to extend the for which a national emergency related period of availability of fiscal year (FY) to the COVID–19 pandemic has been DEPARTMENT OF EDUCATION 2018 funds for programs in which the duly declared by the President of the State educational agency (SEA) United States under the Robert T. Notice of Waivers Granted Under participates as the eligible agency until Stafford Disaster Relief and Emergency Section 3511 of the Coronavirus Aid, September 30, 2021. Assistance Act, 100 Public Law 707, and Relief, and Economic Security In the last 30 days, the Department’s will protect the health and safety of (CARES) Act Office of Career, Technical, and Adult students, staff, and our communities. Education (OCTAE) granted 41 waivers Waiver Applicants: The SEA GEPA AGENCY: Office of Career, Technical, and to SEAs. Adult Education, Department of section 421(b) waiver applicants Education. Waiver Data provided assurance that the SEA will: (1) Use, and ensure that its subgrantees ACTION: Notice. I. Extensions of the Obligation Period will use, funds under the respective SUMMARY: In this notice, we announce A. Twenty-eight waivers were granted programs in accordance with the waivers that the U.S. Department of to SEAs for State grants authorized by provisions of all applicable statutes, Education (Department) granted, within Title I of the Carl D. Perkins Career and regulations, program plans, and the last 30 days, under the CARES Act. Technical Education Act of 2006 applications not subject to these FOR FURTHER INFORMATION CONTACT: (Perkins), and 13 waivers to SEAs for waivers; (2) work to mitigate, and Hugh Reid, U.S. Department of State grants authorized by Title II of the ensure that its subgrantees will work to Education, 400 Maryland Avenue SW, Workforce Innovation and Opportunity mitigate, any negative effects that may Room Potomac Center Plaza (PCP)— Act (WIOA) (i.e., the Adult Education occur as a result of the requested 11114, Washington, DC 20202. and Family Literacy Act (AEFLA)). waiver; and (3) provide the public and Telephone: (202) 245–7491. Email: 1. Provision waived: Tydings all subgrantees in the State with notice Amendment, section 421(b) of GEPA (20 of, and the opportunity to comment on, [email protected]. 1 If you use a telecommunications U.S.C. 1225(b)). this request by posting information device for the deaf (TDD) or a text Reasons: These waivers were granted regarding the waiver request and the telephone (TTY), call the Federal Relay under section 421(b) of GEPA to extend process for commenting on the State Service (FRS), toll free, at 1–800–877– the period of availability of FY 2018 website. 8339. funds until September 30, 2021, The Assistant Secretary for Career, pursuant to the 2018 Consolidated Technical, and Adult Education, SUPPLEMENTARY INFORMATION: Section Appropriations Act (GEPA section 3511(d)(3) of the CARES Act requires reviewed the SEAs’ requests for a GEPA section 421(b) waiver and determined the Secretary to publish, in the Federal 1 Section 3511(b) of the CARES Act only that the following SEAs met the Register and on the Department’s authorizes the Secretary to grant waivers requested website, a notice of the Secretary’s by SEAs of the Tydings Amendment, section 421(b) requirements for a GEPA section 421(b) decision to grant a waiver. The of GEPA, to extend the period of availability of waiver on the dates indicated below: State formula grant funds authorized by the Carl D. (1) State grants authorized by Title I Secretary must publish this notice no Perkins Career and Technical Education Act of 2006 later than 30 days after granting the (Perkins Act) and the Adult Education and Family of Perkins: waiver and the notice must include Literacy Act (AEFLA). The Department currently • Alabama State Department of which waiver was granted and the does not have the authority to grant a waiver of the Education, April 21, 2020; Tydings Amendment with respect to the Perkins • reason for granting the waiver. This Act or AEFLA to States in which the SEA is not Alaska Department of Education notice is intended to fulfill the the grantee for these State-administered programs. and Early Development, April 21, 2020;

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• Arkansas Department of Education, • Puerto Rico Department of ADDRESSES: Virtual via Zoom. April 17, 2020; Education, April 17, 2020; The hearing is open to the public and • Connecticut State Department of • Rhode Island Department of will be livestreamed on the U.S. Education, April 27, 2020; Education, April 20, 2020; Election Assistance Commission • Delaware Department of Education, • South Carolina Department of YouTube Channel: https:// April 22, 2020; Education, April 21, 2020; www.youtube.com/channel/ • Florida Department of Education, • Virgin Islands Department of UCpN6i0g2rlF4ITWhwvBwwZw. April 30, 2020; Education, April 22, 2020; FOR FURTHER INFORMATION CONTACT: • Georgia Department of Education, • Virginia Department of Education, Jerome Lovato, Telephone: (301) 960– April 17, 2020; April 17, 2020; and • Illinois State Board of Education, • West Virginia Department of 1216, Email: [email protected]. April 21, 2020; Education, April 21, 2020. SUPPLEMENTARY INFORMATION: • Kentucky Department of Education, The Secretary also announced the Purpose: In accordance with the April 27, 2020; waiver decisions at: https:// Government in the Sunshine Act • Maine Department of Education, www2.ed.gov/about/offices/list/ovae/pi/ (Sunshine Act), Public Law 94–409, as April 23, 2020; covid19/index.html. amended (5 U.S.C. 552b), the U.S. • Massachusetts Department of Accessible Format: Individuals with Election Assistance Commission (EAC) Elementary and Secondary Education, disabilities can obtain this document will conduct a virtual hearing to discuss April 20, 2020; and a copy of the application package in the proposed Voluntary Voting System • Mississippi Department of an accessible format (e.g., braille, large Guidelines (VVSG) 2.0 Requirements as Education, April 17, 2020; print, audiotape, or compact disc) on submitted by the Technical Guidelines • Nevada Department of Education, request to the program contact person Development Committee (TGDC). April 23, 2020; listed under FOR FURTHER INFORMATION Agenda: The U.S. Election Assistance • New Hampshire Department of CONTACT. Commission (EAC) will host a third Education, April 17, 2020; Electronic Access to This Document: virtual hearing to discuss the proposed • New Jersey Department of The official version of this document is VVSG 2.0 Requirements. This hearing Education, April 27, 2020; the document published in the Federal will include panels with manufacturers • New Mexico Public Education Register. You may access the official to discuss building the next generation Department, April 30, 2020; edition of the Federal Register and the of voting systems to the new • New York State Education Code of Federal Regulations at requirements, the associated timelines, Department, April 21, 2020; www.govinfo.gov. At this site you can general information on the anticipated • North Carolina Department of view this document, as well as all other feasibility for the manufacturers, an Public Instruction, April 17, 2020; documents of this Department assessment of the currently proposed • Oregon Department of Education, published in the Federal Register, in technology in the requirements, and April 27, 2020; • text or Portable Document Format ultimately the testing of the voting Puerto Rico Department of (PDF). To use PDF you must have system. Education, April 17, 2020; • Adobe Acrobat Reader, which is Commissioners will also hear from Rhode Island Department of available free at the site. members of the public who wish to offer Education, April 20, 2020; • You may also access documents of the verbal testimony on the VVSG 2.0 South Carolina Department of Department published in the Federal requirements. Public testimony during Education, April 21, 2020; Register by using the article search the hearing will be limited to 5 minutes • Tennessee Department of feature at www.federalregister.gov. maximum per person. If you would like Education, April 28, 2020; Specifically, through the advanced to participate in public testimony, • Texas Education Agency, April 21, search feature at this site, you can limit please contact Jerome Lovato (jlovato@ 2020; your search to documents published by • Utah State Board of Education, eac.gov) with your full name and phone the Department. April 24, 2020; number no later than 5 p.m. Eastern Time on May 19, 2020. • Vermont Agency of Education, May Scott Stump, 4, 2020; The VVSG 2.0 Requirements are Assistant Secretary for Career, Technical, and currently published for a 90-day public • Virgin Islands Department of Adult Education. comment period that concludes on June Education, April 22, 2020; and [FR Doc. 2020–10488 Filed 5–14–20; 8:45 am] • 22nd. The first VVSG public hearing on Virginia Department of Education, BILLING CODE 4000–01–P April 17, 2020. March 27, 2020 covered an introduction (2) State grants authorized by Title II to the VVSG process as well a high-level overview of the proposed VVSG 2.0 of WIOA (AEFLA): ELECTION ASSISTANCE COMMISSION • Connecticut State Department of requirements. A recording of the hearing is available on the EAC’s website. The Education, April 27, 2020; Sunshine Act Meetings • Delaware Department of Education, second public hearing on May 6, 2020 April 22, 2020; AGENCY: U.S. Election Assistance addressed the importance of VVSG 2.0 • Florida Department of Education, Commission. at the state and local level, and the April 30, 2020; ACTION: Sunshine act notice; notice of consideration of accessibility and • Iowa Department of Education, public hearing agenda. security in VVSG 2.0. A recording of the April 23, 2020; second hearing is available on the EAC’s • Massachusetts Department of SUMMARY: The U.S. Election Assistance website. Elementary and Secondary Education, Commission is holding an virtual The TGDC unanimously approved to April 20, 2020; hearing, titled ‘‘VVSG 2.0 Requirements recommend VVSG 2.0 Requirements on • Nevada Department of Education, Hearing 3: Manufacturers, Technology, February 7, 2020, and sent the April 23, 2020; & Testing Labs.’’ Requirements to the EAC Acting • New York State Education DATES: Wednesday, May 20, 2020 1:30 Executive Director via the Director of Department, April 21, 2020; p.m.–3:30 p.m. Eastern the National Institute of Standards and

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Technology (NIST), in the capacity of Any person desiring to intervene or who will eFile a document and/or be the Chair of the TGDC on March 9, protest in any of the above proceedings listed as a contact for an intervenor 2020. Upon adoption, the VVSG 2.0 must file in accordance with Rules 211 must create and validate an would become the fifth iteration of and 214 of the Commission’s eRegistration account using the national level voting system standards. Regulations (18 CFR 385.211 and eRegistration link. Select the eFiling The Federal Election Commission 385.214) on or before 5:00 p.m. Eastern link to log on and submit the published the first two sets of federal time on the specified date(s). Protests intervention or protests. standards in 1990 and 2002. The EAC may be considered, but intervention is Persons unable to file electronically then adopted Version 1.0 of the VVSG necessary to become a party to the may mail similar pleadings to the on December 13, 2005. In an effort to proceeding. Federal Energy Regulatory Commission, update and improve version 1.0 of the eFiling is encouraged. More detailed 888 First Street, NE, Washington, DC VVSG, on March 31, 2015, the EAC information relating to filing 20426. Hand delivered submissions in commissioners unanimously approved requirements, interventions, protests, docketed proceedings should be VVSG 1.1. The full agenda will be service, and qualifying facilities filings delivered to Health and Human posted in advance on the EAC website: can be found at: http://www.ferc.gov/ Services, 12225 Wilkins Avenue, https://www.eac.gov. docs-filing/efiling/filing-req.pdf. For Rockville, Maryland 20852. Status: This hearing will be open to other information, call (866) 208–3676 In addition to publishing the full text the public. (toll free). For TTY, call (202) 502–8659. of this document in the Federal Register, the Commission provides all Amanda Joiner, Dated: May 11, 2020. interested persons an opportunity to Associate Counsel, U.S. Election Assistance Nathaniel J. Davis, Sr., view and/or print the contents of this Commission. Deputy Secretary. document via the internet through the [FR Doc. 2020–10576 Filed 5–13–20; 11:15 am] [FR Doc. 2020–10476 Filed 5–14–20; 8:45 am] Commission’s Home Page (http:// BILLING CODE P BILLING CODE 6717–01–P ferc.gov) using the eLibrary link. Enter the docket number excluding the last three digits in the docket number field DEPARTMENT OF ENERGY DEPARTMENT OF ENERGY to access the document. At this time, the Commission has suspended access to Federal Energy Regulatory Federal Energy Regulatory the Commission’s Public Reference Commission Commission Room, due to the proclamation [Docket No. ER20–1790–000] declaring a National Emergency Combined Notice of Filings concerning the Novel Coronavirus Take notice that the Commission has Aurora Wind Project, LLC; Disease (COVID–19), issued by the received the following Natural Gas Supplemental Notice That Initial President on March 13, 2020. For Pipeline Rate and Refund Report filings: Market-Based Rate Filing Includes assistance, contact the Federal Energy Request for Blanket Section 204 Docket Numbers: RP20–842–000. Regulatory Commission at Authorization Applicants: Sabal Trail Transmission, [email protected] or call toll-free, (886) 208–3676 or TYY, (202) LLC. This is a supplemental notice in the 502–8659. Description: § 4(d) Rate Filing: above-referenced Aurora Wind Project, Negotiated Rate—Amended FPL 850013 LLC’s application for market-based rate Dated: May 11, 2020. eff 5–1–20 to be effective 5/1/2020. authority, with an accompanying rate Nathaniel J. Davis, Sr., Filed Date: 5/1/20. tariff, noting that such application Deputy Secretary. Accession Number: 20200501–5000. includes a request for blanket [FR Doc. 2020–10475 Filed 5–14–20; 8:45 am] Comments Due: 5 p.m. ET 5/14/20. authorization, under 18 CFR part 34, of BILLING CODE 6717–01–P Docket Numbers: RP20–851–000. future issuances of securities and Applicants: Cameron Interstate assumptions of liability. Pipeline, LLC. Any person desiring to intervene or to DEPARTMENT OF ENERGY Description: Annual Operational protest should file with the Federal Transactions Report of Cameron Energy Regulatory Commission, 888 Federal Energy Regulatory Interstate Pipeline, LLC under RP20– First Street, NE, Washington, DC 20426, Commission 851. in accordance with Rules 211 and 214 Combined Notice of Filings #1 Filed Date: 4/30/20. of the Commission’s Rules of Practice Accession Number: 20200430–5479. and Procedure (18 CFR 385.211 and Take notice that the Commission Comments Due: 5 p.m. ET 5/14/20. 385.214). Anyone filing a motion to received the following exempt Docket Numbers: RP20–863–000. intervene or protest must serve a copy wholesale generator filings: Applicants: Cameron Interstate of that document on the Applicant. Docket Numbers: EG20–154–000. Pipeline, LLC. Notice is hereby given that the Applicants: Weatherford Wind, LLC. Description: Annual Report of deadline for filing protests with regard Description: Notice of Self- Interruptible Transportation Revenue to the applicant’s request for blanket Certification of Exempt Wholesale Sharing of Cameron Interstate Pipeline, authorization, under 18 CFR part 34, of Generator Status of Weatherford Wind, LLC under RP20–863. future issuances of securities and LLC. Filed Date: 5/7/20. assumptions of liability, is June 1, 2020. Filed Date: 5/8/20. Accession Number: 20200507–5181. The Commission encourages Accession Number: 20200508–5288. Comments Due: 5 p.m. ET 5/19/20. electronic submission of protests and Comments Due: 5 p.m. ET 5/29/20. The filings are accessible in the interventions in lieu of paper, using the Take notice that the Commission Commission’s eLibrary system by FERC Online links at http:// received the following electric rate clicking on the links or querying the www.ferc.gov. To facilitate electronic filings: docket number. service, persons with internet access Docket Numbers: ER20–1792–000.

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Applicants: Horizon West Accession Number: 20200511–5055. requirements, interventions, protests, Transmission, LLC. Comments Due: 5 p.m. ET 6/1/20. service, and qualifying facilities filings Description: § 205(d) Rate Filing: Docket Numbers: ER20–1799–000. can be found at: http://www.ferc.gov/ Horizon West Transmission, LLC Applicants: Techren Solar III LLC. docs-filing/efiling/filing-req.pdf. For Administrative Clean-Up Filing to be Description: Baseline eTariff Filing: other information, call (866) 208–3676 effective 4/24/2019. Application For Market Based Rate (toll free). For TTY, call (202) 502–8659. Filed Date: 5/8/20. Authority to be effective 6/30/2020. Dated: May 11, 2020. Accession Number: 20200508–5261. Filed Date: 5/11/20. Nathaniel J. Davis, Sr., Comments Due: 5 p.m. ET 5/29/20. Accession Number: 20200511–5089. Deputy Secretary. Docket Numbers: ER20–1793–000. Comments Due: 5 p.m. ET 6/1/20. [FR Doc. 2020–10474 Filed 5–14–20; 8:45 am] Applicants: PJM Interconnection, Docket Numbers: ER20–1800–000. BILLING CODE 6717–01–P L.L.C. Applicants: Techren Solar IV LLC. Description: § 205(d) Rate Filing: Description: Baseline eTariff Filing: Original ISA, SA No. 5633 & ICSA, SA Application For Market Based Rate DEPARTMENT OF ENERGY No. 5634; Queue No. AC2–088/AD1– Authority to be effective 6/30/2020. 136 to be effective 4/9/2020. Filed Date: 5/11/20. Federal Energy Regulatory Filed Date: 5/8/20. Accession Number: 20200511–5091. Commission Accession Number: 20200508–5263. Comments Due: 5 p.m. ET 6/1/20. Comments Due: 5 p.m. ET 5/29/20. Docket Numbers: ER20–1801–000. [Docket No. CP20–436–000] Docket Numbers: ER20–1794–000. Applicants: Techren Solar V LLC. Applicants: Midcontinent Description: Baseline eTariff Filing: Texas Eastern Transmission, LP; Independent System Operator, Inc. Application For Market Based Rate Notice of Application Description: Request for Waiver of Authority to be effective 6/30/2020. Tariff Provisions, et al. of the Filed Date: 5/11/20. Take notice that on May 1, 2020, Midcontinent Independent System Accession Number: 20200511–5095. Texas Eastern Transmission, LP (Texas Operator, Inc. Comments Due: 5 p.m. ET 6/1/20. Eastern), 5400 Westheimer Court, Filed Date: 5/8/20. Docket Numbers: ER20–1802–000. Houston, Texas 77056, filed in Docket Accession Number: 20200508–5312. Applicants: Entergy Louisiana, LLC. No. CP20–436–000 an application Comments Due: 5 p.m. ET 5/15/20. Description: Request for Limited pursuant to section 7(c) of the Natural Waiver of Entergy Louisiana, LLC. Gas Act (NGA) requesting authorization Docket Numbers: ER20–1795–000. Filed Date: 5/11/20. for its proposed Appalachia to Market Applicants: Pacific Gas and Electric Accession Number: 20200511–5096. Project (Project). Specifically, Texas Company. Comments Due: 5 p.m. ET 6/1/20. Eastern proposes to: (1) Construct and Description: Petition for Limited operate approximately 0.8 mile of 30- Waiver of Pacific Gas and Electric Docket Numbers: ER20–1803–000. inch diameter loop pipeline on Texas Company. Applicants: Midcontinent Eastern’s system downstream of the Filed Date: 5/8/20. Independent System Operator, Inc. Delmont Compressor Station in Accession Number: 20200508–5320. Description: § 205(d) Rate Filing: _ Westmoreland County, Pennsylvania; Comments Due: 5 p.m. ET 5/29/20. 2020–05–11 SA 3493 METC-River Fork Solar GIA (J806) to be effective 4/27/ and (2) establish initial incremental Docket Numbers: ER20–1796–000. 2020. recourse rates and the applicable fuel Applicants: Entergy Arkansas, LLC, Filed Date: 5/11/20. percentage for firm transportation Entergy Louisiana, LLC, Entergy Accession Number: 20200511–5116. service on the Project facilities. Texas Mississippi, LLC, Entergy New Orleans, Comments Due: 5 p.m. ET 6/1/20. Eastern avers the Project will provide LLC, Entergy Texas, Inc. Docket Numbers: ER20–1804–000. UGI Utilities, Inc. with up to 18,000 Description: Compliance Filing with Applicants: Tri-State Generation and dekatherms per day of firm natural gas Order No. 864 of Entergy Arkansas, LLC, Transmission Association, Inc. transportation service. The estimated et al. Description: § 205(d) Rate Filing: cost of the project is $21.5 million. Filed Date: 5/8/20. Amendment to Service Agreement No. In addition to publishing the full text Accession Number: 20200508–5332. 864 to be effective 4/30/2020. of this document in the Federal Comments Due: 5 p.m. ET 5/29/20. Filed Date: 5/11/20. Register, the Commission provides all Docket Numbers: ER20–1797–000. Accession Number: 20200511–5129. interested persons an opportunity to Applicants: Alabama Power Comments Due: 5 p.m. ET 6/1/20. view and/or print the contents of this Company. The filings are accessible in the document via the internet through the Description: § 205(d) Rate Filing: EDP Commission’s eLibrary system by Commission’s Home Page (http:// Renewables North America (Shelby clicking on the links or querying the ferc.gov) using the eLibrary link. Enter Solar) LGIA Filing to be effective 4/27/ docket number. the docket number excluding the last 2020. Any person desiring to intervene or three digits in the docket number field Filed Date: 5/11/20. protest in any of the above proceedings to access the document. At this time, the Accession Number: 20200511–5054. must file in accordance with Rules 211 Commission has suspended access to Comments Due: 5 p.m. ET 6/1/20. and 214 of the Commission’s the Commission’s Public Reference Docket Numbers: ER20–1798–000. Regulations (18 CFR 385.211 and Room, due to the proclamation Applicants: Alabama Power 385.214) on or before 5:00 p.m. Eastern declaring a National Emergency Company. time on the specified comment date. concerning the Novel Coronavirus Description: § 205(d) Rate Filing: EDP Protests may be considered, but Disease (COVID–19), issued by the Renewables North America (Dodge intervention is necessary to become a President on March 13, 2020. For Solar) LGIA Filing to be effective 4/27/ party to the proceeding. assistance, contact the Federal Energy 2020. eFiling is encouraged. More detailed Regulatory Commission at Filed Date: 5/11/20. information relating to filing [email protected] or call

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toll-free, (886) 208–3676 or TYY, (202) will not serve to make the filer a party DEPARTMENT OF ENERGY 502–8659. to the proceeding. The Commission’s Any questions concerning this rules require that persons filing Federal Energy Regulatory application may be directed to Berk comments in opposition to the project Commission Donaldson, Texas Eastern Transmission, provide copies of their protests only to [Docket No. CP20–448–000] LP, P.O. Box 1642, Houston, Texas the party or parties directly involved in 77251–1642, by phone (713) 627–4488, the protest. Dominion Energy Overthrust Pipeline, or by fax (713) 627–5947. LLC; Notice of Request Under Blanket Persons who wish to comment only Pursuant to section 157.9 of the Authorization Commission’s rules (18 CFR 157.9), on the environmental review of this within 90 days of this Notice, the project should submit an original and Take notice that on May 5, 2020, Commission staff will either: Complete two copies of their comments to the Dominion Energy Overthrust Pipeline, its environmental assessment (EA) and Secretary of the Commission. LLC (DEOP), 333 South State Street, Salt place it into the Commission’s public Environmental commenters will be Lake City, Utah 84111, filed in the record (eLibrary) for this proceeding or placed on the Commission’s above referenced docket a prior notice issue a Notice of Schedule for environmental mailing list and will be request pursuant to sections 157.205, Environmental Review. If a Notice of notified of meetings associated with the 157.208, and 157.210 of the Schedule for Environmental Review is Commission’s environmental review Commission’s regulations under the Natural Gas Act (NGA) and its blanket issued, it will indicate, among other process. Environmental commenters certificate issued in Docket No. CP82– milestones, the anticipated date for the will not be required to serve copies of Commission staff’s issuance of the final 493–000. DEOP requests authorization filed documents on all other parties. to construct its Wamsutter West environmental impact statement (FEIS) However, the non-party commenters or EA for this proposal. The filing of the Expansion Project comprising piping will not receive copies of all documents EA in the Commission’s public record and valve modifications at the filed by other parties or issued by the for this proceeding or the issuance of a Wamsutter, Rock Springs and Granger Notice of Schedule will serve to notify Commission and will not have the right facilities located in Sweetwater County, federal and state agencies of the timing to seek court review of the Wyoming, and the Roberson facility for the completion of all necessary Commission’s final order. located in Lincoln County, Wyoming. reviews, and the subsequent need to As of the February 27, 2018 date of Construction of these modifications complete all federal authorizations the Commission’s order in Docket No. would create 120,000 dekatherms per within 90 days of the date of issuance CP16–4–001, the Commission will day of new firm transportation service of the Commission staff’s FEIS or EA. apply its revised practice concerning between the Wamsutter facility and the There are two ways to become out-of-time motions to intervene in any Opal interconnect located in Lincoln involved in the Commission’s review of new NGA section 3 or section 7 County, Wyoming. DEOP estimates the cost of the project to be approximately this project. First, any person wishing to proceeding.1 Persons desiring to become $5,400,000, all as more fully set forth in obtain legal status by becoming a party a party to a certificate proceeding are to to the proceedings for this project the request which is on file with the intervene in a timely manner. If seeking should, on or before the comment date Commission and open to public stated below, file with the Federal to intervene out-of-time, the movant is inspection. Energy Regulatory Commission, 888 required to show good cause why the In addition to publishing the full text First Street NE, Washington, DC 20426, time limitation should be waived, and of this document in the Federal a motion to intervene in accordance should provide justification by reference Register, the Commission provides all with the requirements of the to factors set forth in Rule 214(d)(1) of interested persons an opportunity to Commission’s Rules of Practice and the Commission’s Rules and view and/or print the contents of this Procedure (18 CFR 385.214 or 385.211) Regulations.2 document via the internet through the and the Regulations under the NGA (18 The Commission strongly encourages Commission’s Home Page (http:// CFR 157.10). A person obtaining party electronic filings of comments, protests ferc.gov) using the eLibrary link. Enter status will be placed on the service list and interventions in lieu of paper using the docket number excluding the last maintained by the Secretary of the the eFiling link at http://www.ferc.gov. three digits in the docket number field Commission and will receive copies of Persons unable to file electronically may to access the document. At this time, the all documents filed by the applicant and mail similar pleadings to the Federal Commission has suspended access to by all other parties. A party must submit the Commission’s Public Reference Energy Regulatory Commission, 888 five copies of filings made with the Room, due to the proclamation First Street NE, Washington, DC 20426. Commission and must mail a copy to declaring a National Emergency the applicant and to every other party in Comment Date: 5:00 p.m. Eastern concerning the Novel Coronavirus the proceeding. Only parties to the Time on June 1, 2020. Disease (COVID–19), issued by the proceeding can ask for court review of Dated: May 11, 2020. President on March 13, 2020. For Commission orders in the proceeding. assistance, contact FERC at Kimberly D. Bose, However, a person does not have to [email protected] or call intervene in order to have comments Secretary. toll-free, (886) 208–3676 or TYY, (202) considered. The second way to [FR Doc. 2020–10460 Filed 5–14–20; 8:45 am] 502–8659. participate is by filing with the BILLING CODE 6717–01–P Any questions regarding this Secretary of the Commission, as soon as application should be directed to Greg possible, an original and two copies of Williams, Regulatory Specialist, comments in support of or in opposition Dominion Energy Services, 333 South to this project. The Commission will State Street, Salt Lake City, Utah 84111, consider these comments in 1 Tennessee Gas Pipeline Company, L.L.C., 162 by telephone at (801) 324–5370, or by determining the appropriate action to be FERC 61,167 at 50 (2018). email at greg.williams@ taken, but the filing of a comment alone 2 18 CFR 385.214(d)(1). dominionenergy.com.

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Any person or the Commission’s staff of the protest or intervention to the reductions required from each state may, within 60 days after issuance of Federal Energy Regulatory Commission, covered by the program occur within the instant notice by the Commission, 888 First Street NE, Washington, DC the state. If the total emissions from a file pursuant to Rule 214 of the 20426. given state’s affected units exceed the Commission’s Procedural Rules (18 CFR Dated: May 11, 2020. state’s assurance level under the 385.214) a motion to intervene or notice Kimberly D. Bose, program, then two allowances must be of intervention and pursuant to section surrendered for each ton of emissions Secretary. 157.205 of the regulations under the exceeding the assurance level (in NGA (18 CFR 157.205), a protest to the [FR Doc. 2020–10459 Filed 5–14–20; 8:45 am] addition to the ordinary obligation to request. If no protest is filed within the BILLING CODE 6717–01–P surrender one allowance for each ton of time allowed therefore, the proposed emissions). In the quarterly emissions activity shall be deemed to be reports covering the 2019 control authorized effective the day after the ENVIRONMENTAL PROTECTION period, Mississippi units participating time allowed for filing a protest. If a AGENCY in the CSAPR NOX Ozone Season Group protest is filed and not withdrawn [FRL–10009–58–OAR] 2 Trading Program collectively reported within 30 days after the allowed time emissions that exceed the state’s for filing a protest, the instant request Administration of Cross-State Air assurance level under the program by shall be treated as an application for Pollution Rule Trading Program 473 tons, resulting in a requirement for authorization pursuant to section 7 of Assurance Provisions for 2019 Control the surrender of 946 additional the NGA. Periods allowances. Pursuant to section 157.9 of the When a state’s assurance level is Commission’s rules, 18 CFR 157.9, AGENCY: Environmental Protection exceeded, responsibility for within 90 days of this Notice the Agency (EPA). surrendering the required additional Commission staff will either: Complete ACTION: Notice of data availability. its environmental assessment (EA) and allowances is apportioned among place it into the Commission’s public SUMMARY: The Environmental Protection groups of units in the state represented record (eLibrary) for this proceeding; or Agency (EPA) is providing notice of the by ‘‘common designated issue a Notice of Schedule for availability of data on the representatives’’ based on the extent to Environmental Review. If a Notice of administration of the assurance which each such group’s emissions Schedule for Environmental Review is provisions of the Cross-State Air exceeded the group’s share of the state’s issued, it will indicate, among other Pollution Rule (CSAPR) trading assurance level. For the CSAPR NOX milestones, the anticipated date for the programs for the control periods in Ozone Season Group 2 Trading Commission staff’s issuance of the EA 2019. Total emissions of nitrogen oxides Program, the procedures are set forth at for this proposal. The filing of the EA (NOX) reported by Mississippi units 40 CFR 97.802 (definitions of ‘‘common in the Commission’s public record for participating in the CSAPR NOX Ozone designated representative,’’ ‘‘common this proceeding or the issuance of a Season Group 2 Trading Program during designated representative’s assurance Notice of Schedule for Environmental the 2019 control period exceeded the level,’’ and ‘‘common designated Review will serve to notify federal and state’s assurance level under the representative’s share’’), 97.806(c)(2), state agencies of the timing for the program. Data demonstrating the and 97.825. Applying the procedures in completion of all necessary reviews, and exceedance and EPA’s preliminary the regulations for the 2019 control the subsequent need to complete all calculations of the amounts of period for Mississippi, EPA has federal authorizations within 90 days of additional allowances that the owners completed preliminary calculations the date of issuance of the Commission and operators of certain Mississippi indicating that responsibility for staff’s EA. units must surrender have been posted surrendering 946 additional allowances Persons who wish to comment only in a spreadsheet on EPA’s website. EPA should be apportioned entirely to the on the environmental review of this will consider timely objections to the group of units operated by Mississippi project should submit an original and data and calculations before making Power Company, all of which are two copies of their comments to the final determinations of the amounts of represented by one common designated Secretary of the Commission. additional allowances that must be representative. Environmental commenters will be surrendered. In this document, EPA is providing placed on the Commission’s DATES: Objections to the information notice of the data relied on to determine environmental mailing list and will be referenced in this notice must be the amount of the exceedance of the notified of any meetings associated with received on or before July 1, 2020. Mississippi assurance level discussed the Commission’s environmental review ADDRESSES: Submit your objections via above, as required under 40 CFR process. Environmental commenters 97.825(b)(1)(ii), and notice of the will not be required to serve copies of email to [email protected]. Include ‘‘2019 CSAPR Assurance Provisions’’ in preliminary calculations of the amounts filed documents on all other parties. of additional allowances that the owners However, the non-party commenters the email subject line and include your name, title, affiliation, address, phone and operators of certain Mississippi will not receive copies of all documents units must surrender as a result of the filed by other parties or issued by the number, and email address in the body of the email. exceedance, as required under 40 CFR Commission and will not have the right 97.825(b)(2)(ii).1 By October 1, 2020, to seek court review of the FOR FURTHER INFORMATION CONTACT: Questions concerning this notice should Commission’s final order. 1 The regulations allow the notice of data The Commission strongly encourages be addressed to Garrett Powers at (202) availability required under 40 CFR 97.825(b)(2)(ii) electronic filings of comments, protests 564–2300 or [email protected]. to be published approximately two months after the and interventions in lieu of paper using SUPPLEMENTARY INFORMATION: The notice of data availability required under 40 CFR 97.825(b)(1)(ii), but in this instance EPA already has the eFiling link at http://www.ferc.gov. regulations for each CSAPR trading all the information needed to prepare both of the Persons unable to file electronically program contain ‘‘assurance provisions’’ required notices and is therefore combining the two should submit an original and 3 copies designed to ensure that the emissions required notices into this single document.

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EPA will provide notice of the final Authority: 40 CFR 97.825(b). Dated: May 11, 2020. calculations of the amounts of Reid P. Harvey, Cindy S. Barger, additional allowances that must be Director, Clean Air Markets Division, Office Director, NEPA Compliance Division, Office surrendered, incorporating any of Atmospheric Programs, Office of Air and of Federal Activities. adjustments made in response to Radiation. [FR Doc. 2020–10436 Filed 5–14–20; 8:45 am] objections received, as required under [FR Doc. 2020–10441 Filed 5–14–20; 8:45 am] BILLING CODE 6560–50–P 40 CFR 97.825(b)(2)(iii)(B). Each set of BILLING CODE 6560–50–P owners and operators identified pursuant to the notice of the final ENVIRONMENTAL PROTECTION calculations must hold the required ENVIRONMENTAL PROTECTION AGENCY AGENCY additional allowances in an assurance [EPA–HQ–OPPT–2019–0501; FRL–10009– account by November 2, 2020. 72] The data and preliminary calculations [ER–FRL–9050–8] are set forth in an Excel spreadsheet Toxic Substances Control Act (TSCA) Environmental Impact Statements; entitled ‘‘2019_CSAPR_assurance_ Science Advisory Committee on Notice of Availability Chemicals (SACC); Notice of provision_calculations_prelim.xlsx’’ Rescheduled Public Meeting available at http://www.epa.gov/csapr/ Responsible Agency: Office of Federal csapr-assurance-provision-nodas. The Activities, General Information 202– AGENCY: Environmental Protection spreadsheet contains data for the 2019 564–5632 or https://www.epa.gov/nepa. Agency (EPA). control period showing, for each Weekly receipt of Environmental Impact ACTION: Notice. Mississippi unit identified as affected Statements (EIS) SUMMARY: under the CSAPR NOX Ozone Season Filed May 4, 2020, 10 a.m. EST Through EPA is announcing the Group 2 Trading Program, the amount of May 11, 2020, 10 a.m. EST rescheduled meeting dates for the 4-day meeting of the Toxic Substances Control NOX emissions reported by the unit and Pursuant to 40 CFR 1506.9. the amount of CSAPR NO Ozone Act (TSCA) Science Advisory X Section 309(a) of the Clean Air Act Season Group 2 allowances allocated to Committee on Chemicals (SACC) that requires that EPA make public its had been previously scheduled for April the unit, including any allowances comments on EISs issued by other allocated from a new unit set-aside. The to consider and review the draft Risk Federal agencies. EPA’s comment letters Evaluation for asbestos and associated spreadsheet also contains calculations on EISs are available at: https:// for the 2019 control period showing the documents. This will be a virtual public cdxnodengn.epa.gov/cdx-enepa-public/ meeting of the TSCA SACC, with total NO emissions reported by all X action/eis/search. participation by phone and webcast such units and the amount by which the EIS No. 20200102, Final, USFWS, CA, only. As previously announced in April, total reported NO emissions exceeded X Final Environmental Impact the public is invited to comment on the the state’s assurance level under the Statement/Supplemental draft risk evaluation for asbestos and program. Finally, the spreadsheet also Environmental Impact Report for the related documents in advance of and includes calculations for the 2019 Proposed Upper Santa Ana River during this peer review virtual meeting. control period showing, for each Wash Habitat Conservation Plan, The TSCA SACC will consider these common designated representative for a Review Period Ends: 06/15/2020, comments during their discussions. group of such units in the state, the Contact: Kerin Cleary-Rose 760–322– DATES: common designated representative’s 2070. Peer Review Virtual Meeting: The 4- share of the total reported NOX EIS No. 20200103, Draft Supplement, day virtual meeting will be held from emissions, the common designated FTA, TX, Dallas CBD Second Light 10:00 a.m. to approximately 5:00 p.m. representative’s share of the state’s Rail Alignment (D2 Subway), Eastern Time, June 8 to 10, 2020; and assurance level, and the amount of Comment Period Ends: 06/29/2020, from 11:30 a.m. to approximately 5:00 additional CSAPR NOX Ozone Season Contact: Terence Plaskon 817–978– p.m. Eastern Time on June 11, 2020 (as Group 2 allowances that the owners and 0573. needed, updated times for each day may operators of the units in the group must EIS No. 20200104, Final, NRCS, RI, be provided in the meeting agenda that surrender. Pocasset River Flood Damage will be posted in the docket at http:// Any objections should be strictly Reduction Project, Review Period www.regulations.gov and on the TSCA limited to whether EPA has identified Ends: 06/15/2020, Contact: Ayana SACC website at http://www.epa.gov/ the data and performed the calculations Brown 401–822–8812. tsca-peer-review). in the spreadsheet correctly in EIS No. 20200105, Final, USFS, WY, Required Registration: You must accordance with the regulations. 2020 Thunder Basin National register online to receive the webcast Grassland Plan Amendment, Review meeting link and audio teleconference Objections must include (1) precise Period Ends: 07/14/2020, Contact: information. You may register as a identification of the specific data or Monique Nelson 307–275–0956. listen-only attendee at any time up to calculations the commenter believes are the end of the virtual meeting. To make Amended Notice inaccurate, (2) new proposed data or oral comments during the peer review calculations upon which the commenter EIS No. 20200060, Draft, FHWA, VA, virtual public meeting, please register believes EPA should rely instead, and Route 220 Martinsville Southern by noon on June 2, 2020, to be included (3) the reasons why EPA should rely on Connector, Comment Period Ends: 06/ on the meeting agenda. the commenter’s proposed data or 19/2020, Contact: Mack A Frost 804– Comments: Submit your written calculations and not the data and 775–3352. Revision to FR Notice comments, using the detailed calculations referenced in this notice. Published 4/17/2020; Extending the instructions provided in the Federal Comment Period from 5/15/2020 to 6/ Register on April 3, 2020 (85 FR 18954; 19/2020. FRL–10006–93) and the ADDRESSES

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section of this document, on or before telephone number: (202) 564–1169; Disposal Restrictions, under the 1984 June 2, 2020. email address: [email protected]. Hazardous and Solid Waste Special accommodations: For SUPPLEMENTARY INFORMATION: The Amendments to the Resource information on access or services for original meeting announcement Conservation and Recovery Act, has individuals with disabilities, and to appeared in the Federal Register on been granted to The Chemours request accommodation of a disability, April 3, 2020 (85 FR 18954; FRL– Company for Class I hazardous waste please contact the DFO listed under FOR 10006–93). This document announces injection wells located at their Pass FURTHER INFORMATION CONTACT at least the new dates for the rescheduled peer Christian, Mississippi facility. The 10 days prior to the meeting to give EPA review meeting and provides company has adequately demonstrated as much time as possible to process instructions for registering for this to the satisfaction of the EPA by the your request. virtual meeting, please consult the April petition reissuance application and ADDRESSES: 3, 2020 document for details about the supporting documentation that, to a Peer Review Virtual Meeting: Please purpose of the meeting, as well as reasonable degree of certainty, there will visit http://www.epa.gov/tsca-peer- instructions for participating or be no migration of hazardous review to register. You must register providing comments. constituents from the injection zone for online to receive the webcast meeting As indicated previously, EPA’s as long as the waste remains hazardous. link and audio teleconference background documents, related This final decision allows the information for participation. supporting materials, and draft charge underground injection by The Comments: Submit your comments, questions to the TSCA SACC are Chemours Company of the specific identified by docket identification (ID) available on the TSCA SACC website restricted hazardous wastes identified in number EPA–HQ–OPPT–2019–0501, and in the docket established for the this exemption reissuance request, into using the instructions provided in in the specific chemical substance. In Class I hazardous waste injection Wells Federal Register on April 3, 2020 (85 FR addition, EPA will provide additional 2, 3, 4, and 5 until December 31, 2050, 18954; FRL–10006–93). Please use the background documents (e.g., TSCA unless the EPA moves to terminate this Federal eRulemaking Portal: http:// SACC meeting agenda) as the materials exemption. Additional conditions www.regulations.gov. Follow the online become available. You may obtain included in this final decision may be instructions for submitting comments. electronic copies of these documents, reviewed by contacting the EPA Region Do not submit electronically any and certain other related documents that 4 Ground Water, UIC, and GIS Section. information you consider to be might be available, in the docket at A public notice was issued November Confidential Business Information (CBI) http://www.regulations.gov and the 12, 2019 and the public comment period or other information whose disclosure is TSCA SACC website at http:// closed on December 31, 2019, and no restricted by statute. www.epa.gov/tsca-peer-review. comments were received. This decision Please note that due to the public After the public meeting, the TSCA constitutes final Agency action and health emergency the EPA Docket SACC will prepare meeting minutes there is no Administrative appeal. Center (EPA/DC) and Reading Room summarizing its recommendations to DATES: EPA approved the action on was closed to public visitors on March the EPA. The meeting minutes will be February 28, 2020. posted on the TSCA SACC website and 31, 2020. Our EPA/DC staff will ADDRESSES: Copies of the petition continue to provide customer service in the relevant docket. reissuance and all pertinent information via email, phone, and webform. For Authority: 15 U.S.C. 2625(o) et seq.; 5 relating thereto are on file at the further information on EPA/DC services, U.S.C Appendix 2 et seq. following location: Environmental docket contact information and the Dated: May 10, 2020. Protection Agency, Region 4, Water current status of the EPA/DC and Hayley Hughes, Division, Safe Drinking Water Branch, Reading Room, please visit https:// Director, Office of Science Coordination and 61 Forsyth Street Northeast, Atlanta, www.epa.gov/dockets. Georgia 30303. Requests to present oral comments: Policy. FOR FURTHER INFORMATION CONTACT: Submit requests to present oral [FR Doc. 2020–10484 Filed 5–14–20; 8:45 am] Richie Hall, EPA Region 4, comments during the virtual meeting BILLING CODE 6560–50–P Groundwater, UIC, and GIS Section, by when registering. Please visit http:// mail at the Atlanta street address given www.epa.gov/tsca-peer-review to ENVIRONMENTAL PROTECTION above, by telephone at (404) 562–8067, register. AGENCY Requests for special accommodations: or by email at [email protected]. Submit requests for special [FRL–10009–12–Region 4] Dated: May 8, 2020. accommodations to the Designated Jeaneanne Gettle, Federal Official (DFO) listed under FOR Underground Injection Control Director, Water Division, Region 4. FURTHER INFORMATION CONTACT. Program; Hazardous Waste Injection [FR Doc. 2020–10398 Filed 5–14–20; 8:45 am] Restrictions; Petition for Exemption FOR FURTHER INFORMATION CONTACT: BILLING CODE 6560–50–P TSCS SACC: Dr. Diana Wong, DFO, Reissuance—Class I Hazardous Waste Office of Science Coordination and Injection; The Chemours Company, Policy (7201M), Environmental FC, LLC, Chemours Titanium FEDERAL RESERVE SYSTEM Protection Agency, 1200 Pennsylvania Technologies DeLisle Plant, Pass Christian, Mississippi Ave. NW, Washington, DC 20460–0001; Agency Information Collection telephone number: (202) 564–2049; AGENCY: Environmental Protection Activities: Announcement of email address: [email protected]. Agency (EPA). Temporary Approval by the Board Draft Risk Evaluation: Dr. Stan ACTION: Notice of a final decision on a Under Delegated Authority and Barone, Office of Pollution Prevention UIC no migration petition reissuance. Submission to OMB and Toxics (7403M), Environmental Protection Agency, 1200 Pennsylvania SUMMARY: Notice is hereby given that a AGENCY: Board of Governors of the Ave. NW, Washington, DC 20460–0001; reissuance of an exemption to the Land Federal Reserve System.

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ACTION: Temporary approval of Officer—Nuha Elmaghrabi—Office of the PRA. Comments are invited on the information collection, request for the Chief Data Officer, Board of following: comment. Governors of the Federal Reserve a. Whether the proposed collection of System, Washington, DC 20551, (202) information is necessary for the proper SUMMARY: The Board of Governors of the 452–3829. OMB Desk Officer—Shagufta performance of the Board’s functions, Federal Reserve System (Board) has Ahmed—Office of Information and including whether the information has temporarily revised the Reporting Regulatory Affairs, Office of practical utility; Requirements Associated with Management and Budget, New b. The accuracy of the Board’s Emergency Lending Under Section 13(3) Executive Office Building, Room 10235, estimate of the burden of the proposed (FR A; OMB No. 7100–0373), pursuant 725 17th Street NW, Washington, DC information collection, including the to the authority delegated to the Board 20503, or by fax to (202) 395–6974. validity of the methodology and by the Office of Management and A copy of the Paperwork Reduction assumptions used; Budget (OMB). Act (PRA) OMB submission, including c. Ways to enhance the quality, DATES: Comments must be submitted on the reporting form and instructions, utility, and clarity of the information to or before July 14, 2020. supporting statement, and other be collected; d. Ways to minimize the burden of ADDRESSES: You may submit comments, documentation will be placed into information collection on respondents, identified by FR A, by any of the OMB’s public docket files. These including through the use of automated following methods: documents also are available on the collection techniques or other forms of • Agency Website: https:// Federal Reserve Board’s public website information technology; and www.federalreserve.gov/. Follow the at https://www.federalreserve.gov/apps/ e. Estimates of capital or startup costs instructions for submitting comments at reportforms/review.aspx or may be and costs of operation, maintenance, https://www.federalreserve.gov/apps/ requested from the agency clearance and purchase of services to provide foia/proposedregs.aspx. officer, whose name appears above. • information. Email: regs.comments@ SUPPLEMENTARY INFORMATION: On June At the end of the comment period, the federalreserve.gov. Include the OMB 15, 1984, OMB delegated to the Board comments and recommendations number in the subject line of the authority under the PRA to approve and received will be analyzed to determine message. assign OMB control numbers to the extent to which the Board should • Fax: (202) 452–3819 or (202) 452– collections of information conducted or modify the proposal. 3102. sponsored by the Board. In exercising Approval Under OMB Delegated • Mail: Ann E. Misback, Secretary, this delegated authority, the Board is Authority of the Temporary Revision of Board of Governors of the Federal directed to take every reasonable step to the Following Information Collection: Reserve System, 20th Street and solicit comment. In determining Report title: Reporting Requirements Constitution Avenue NW, Washington, whether to approve a collection of Associated with Emergency Lending DC 20551. information, the Board will consider all Under Section 13(3). All public comments are available comments received from the public and Agency form number: FR A. from the Board’s website at https:// other agencies. Pursuant to its delegated OMB control number: 7100–0373. www.federalreserve.gov/apps/foia/ authority, the Board may temporarily Frequency: Event-generated. Respondents: Entities or persons proposedregs.aspx as submitted, unless approve a revision to a collection of borrowing under an emergency lending modified for technical reasons or to information, without providing program or facility established pursuant remove personally identifiable opportunity for public comment, if the to section 13(3) of the Federal Reserve information at the commenter’s request. Board determines that a change in an Act. Accordingly, comments will not be existing collection must be instituted edited to remove any identifying or Estimated number of respondents: FR quickly and that public participation in A–1: 11,281; FR A–2: 6,449; FR A–3: contact information. Public comments the approval process would defeat the may also be viewed electronically or in 13,526. purpose of the collection or Estimated average hours per response: paper in Room 146, 1709 New York substantially interfere with the Board’s FR A–1: 8 hours; FR A–2: 40 hours; FR Avenue NW, Washington, DC 20006, ability to perform its statutory A–3, Lender certifications: 151 hours; between 9:00 a.m. and 5:00 p.m. on obligation. Borrower certifications: 8 hours. weekdays. For security reasons, the As discussed below, the Board has Estimated annual burden hours: Board requires that visitors make an made certain temporary revisions to the 1,032,134. appointment to inspect comments. You FR A information collection. The General description of report: The may do so by calling (202) 452–3684. Board’s delegated authority requires that Board’s Regulation A (12 CFR part 201) Upon arrival, visitors will be required to the Board, after temporarily approving a establishes policies and procedures with present valid government-issued photo collection, publish a notice soliciting respect to emergency lending under identification and to submit to security public comment. Therefore, the Board is section 13(3) of the Federal Reserve Act, screening in order to inspect and also inviting comment on a proposal to as required by sections 1101 and 1103 photocopy comments. extend the FR A information collection of the Dodd-Frank Wall Street Reform Additionally, commenters may send a for three years, with these revisions. The and Consumer Protection Act. These copy of their comments to the Office of Federal Register notice related to the FR policies and procedures include (1) a Management and Budget (OMB) Desk A that was published March 2, 2020, is certification that a participant in a Officer—Shagufta Ahmed—Office of superseded by this notice. lending facility is not insolvent;1 and (2) Information and Regulatory Affairs, a certification that a participant in a Office of Management and Budget, New Request for Comment on Information Collection Proposal lending facility is unable to secure Executive Office Building, Room 10235, adequate credit accommodations from 725 17th Street NW, Washington, DC The Board invites public comment on other banking institutions.2 Currently, 20503, or by fax to (202) 395–6974. the following information collection, FOR FURTHER INFORMATION CONTACT: which is being reviewed under 1 See 12 CFR 201.4(d)(5)(iv)(A). Federal Reserve Board Clearance authority delegated by the OMB under 2 See 12 CFR 201.4(d)(8)(ii).

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the Board’s information collection for credit accommodations from other ACTION: Notice. Regulation A, the FR A, includes only banking institutions. The FR A–2 is a the former certification; the latter was new reporting requirement within the SUMMARY: The Federal Motor Carrier unintentionally omitted. In addition to FR A collection established through the Safety Administration (FMCSA) and the the two certifications in Regulation A adoption of the term sheets for the Main GSA have partnered to develop a that apply to all emergency lending Street Lending Program, PMCCF, program of projects at a number of Land authorized under section 13(3), the SMCCF, and TALF. Participants in the Ports of Entry (LPOEs) so that FMCSA Board may establish additional facilities must certify that they are agents can safely and effectively inspect certification requirements for an eligible to engage in a transaction under both commercial truck and bus traffic. individual emergency lending facility. the facility, including that the entity is DATES: Due to the COVID–19 pandemic Depending on the requirements of a not a covered entity under section 4019 and to ensure the safety of the public, particular lending facility, there may be of the CARES Act. The FR A–3 is a new a formal, in-person public meeting will a need to vary the certifications, reporting requirement within the FR A not be held to solicit comments and depending on the facts and collection established through the provide information about the Draft EA. circumstances. adoption of the term sheets for the Main We will consider all comments that The FR A information collection is Street Lending Program. An eligible we receive on or before June 30, 2020. being revised to contain three parts. The lender under MSELF must certify that ADDRESSES: The Draft EA can be viewed first part of the FR A, the FR A–1, the methodology used for calculating on the GSA website at http:// pertains to reporting requirements the eligible borrower’s adjusted 2019 www.gsa.gov/nepa. Click on NEPA included in Regulation A, described earnings before interest, taxes, Library then Public Documents. In above. The second part of the FR A, the depreciation, and amortization addition, copies may be obtained by FR A–2, pertains to reporting (EBITDA), in order to determine the calling or writing to the individual requirements associated with individual maximum loan size, is the methodology listed in this notice under the FOR facilities that are related to requirements the eligible lender previously used for FURTHER INFORMATION CONTACT section. of the Coronavirus Aid, Relief, and adjusting EBITDA when originating or You may submit comments at the Economic Security Act (CARES Act). amending the eligible loan on or before public meeting by either of the The third part of the FR A, the FR A– April 24, 2020. An eligible lender under following methods: 3, pertains to reporting requirements MSNLF or MSPLF must certify that the • Electronic Mail: osmahn.kadri@ specific to the Main Street Expanded methodology used for calculating the gsa.gov. Loan Facility, the Main Street New Loan eligible borrower’s adjusted 2019 • Postal Mail/Commercial Delivery: Facility, and the Main Street Priority EBITDA in order to determine Send your comment to: Tina Sekula, Loan Facility (collectively, the ‘‘Main maximum loan size is the methodology JMT Inc., 1130 Situs Court, Suite 200, Street Lending Program’’). it has previously used for adjusting Raleigh, NC 27606. Legal authorization and EBITDA when extending credit to the confidentiality: The FR A is authorized FOR FURTHER INFORMATION CONTACT: eligible borrower or similarly situated • pursuant to section 13(3) of the Federal Email: Osmahn Kadri at borrowers on or before April 24, 2020. Reserve Act, which sets out [email protected] An eligible borrower must certify that it • requirements for emergency lending. Mail: Attn: Osmahn Kadri, NEPA has a reasonable basis to believe that, as The obligation to respond is required to Program Manager, 50 United Nations of the date of entering into the relevant obtain a benefit. Plaza, 3345, Mailbox #9, San Francisco, The information collected under FR A transaction and after entering into that CA 94102. • may be kept confidential under transaction, it has the ability to meet its Telephone: (415) 522–3617. • exemption 4 of the Freedom of financial obligations for at least the next *NOTE* PLEASE DO NOT MAIL Information Act, which protects 90 days and does not expect to file for COMMENTS VIA THE U.S. POSTAL commercial or financial information bankruptcy during that time period. All SERVICE (USPS) TO THE GSA obtained from a person that is privileged eligible lenders in the Main Street MAILING ADDRESS AT THIS TIME. or confidential. Lending Program facilities must collect USPS MAIL CAN BE SENT TO JMT INC Current actions: The Board has certifications from borrowers. AT THE ADDRESS ABOVE. revised the FR A to reflect reporting Board of Governors of the Federal Reserve SUPPLEMENTARY INFORMATION: requirements under facilities created System, May 12, 2020. GSA intended to prepare an under section 13(3). The newly-created Michele Taylor Fennell, Environmental Impact Statement (EIS) facilities include the Commercial Paper Assistant Secretary of the Board. to analyze the potential impacts from Funding Facility (CPFF), Main Street [FR Doc. 2020–10467 Filed 5–14–20; 8:45 am] the proposed construction of six (6) Lending Program, Money Market BILLING CODE 6210–01–P inspection facilities at five (5) different Mutual Fund Liquidity Facility LPOEs in both California and Arizona. (MMLF), Municipal Liquidity Facility A Notice of Intent (NOI) was published (MLF), Paycheck Protection Program GENERAL SERVICES on May 23, 2019 concerning the EIS and Liquidity Facility (PPPLF), Primary ADMINISTRATION scoping meetings. A revised NOI was Dealer Credit Facility (PDCF), Primary published on June 21, 2019 to notify Market Corporate Credit Facility [Notice–PBS–2020–04; Docket No. 2020– interested parties that dates for the (PMCCF), Secondary Market Corporate 0002; Sequence No. 12] scoping meetings changed for the two Credit Facility (SMCCF), and Term Revised Notice of Intent/Revised (2) Arizona Sites. This publication Asset-Backed Securities Loan Facility Project Action and Notice of serves as another revised NOI to inform (TALF). Availability for Land Ports of Entry interested parties of a revised project The FR A–1 is being revised to (LPOE) action. include a second certification, which Based on scoping comments received, was inadvertently omitted previously AGENCY: Public Buildings Service (PBS), GSA has modified the proposed action and serves as evidence that a person or Pacific Rim Division General Services to develop co-located truck inspection entity is unable to secure adequate Administration (GSA). facilities within existing state-operated

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inspection facilities to the extent not address safety needs for the including clinical activities and practicable and develop stand-alone travelling public nor FMCSA staff, nor personal protective equipment use; and Federal facilities for the proposed bus capacity needs identified in future (3) compare exposures and other inspection facilities where necessary. As traffic projections at the LPOE. The lack characteristics of HCP cases and a result of the revised proposed action, of dedicated bus inspection exposed HCP that do not become cases GSA has revised the approach to NEPA infrastructure exposes FMCSA to safety to identify risk factors or protective documentation. GSA has prepared a concerns while conducting inspections factors for COVID–19. separate Draft Environmental and is not in conformance with current DATES: CDC must receive written Assessment (EA) and will prepare a FMCSA safety standards. GSA proposes comments on or before July 14, 2020. Finding of No Significant Impact to construct a new FMCSA Bus ADDRESSES: You may submit comments, (FONSI), if appropriate, to analyze the Inspection facility on a federally owned identified by Docket No. CDC–2020– potential impacts from the proposed 1.5-acre parcel located north of the 0043 by any of the following methods: construction of the bus inspection existing LPOE • Federal eRulemaking Portal: facility at the San Ysidro LPOE in A public scoping meeting on the Regulations.gov. Follow the instructions California. Two alternatives were project was held on June 18, 2019. analyzed to include: (1) New ‘‘Basic’’ for submitting comments. Comments received during the meeting • Facility Buildout; (2) No Build Action. were considered by GSA in this Draft Mail: Jeffrey M. Zirger, Information Regarding the proposed truck inspection EA. The finding, which is based on the Collection Review Office, Centers for facilities and other bus inspection Draft EA, reflects the GSA’s Disease Control and Prevention, 1600 facilities previously identified at the determination that construction of the Clifton Road NE, MS–D74, Atlanta, other LPOEs, GSA is negotiating proposed facility will not have a Georgia 30329. agreements with state operated significant impact on the quality of the Instructions: All submissions received inspection facilities for possible co- human or natural environment. must include the agency name and located facilities, which will determine Docket Number. CDC will post, without what type of NEPA documentation will Jared Bradley, change, all relevant comments to be prepared for those proposed actions. Director, Portfolio Management Division, Regulations.gov. GSA is also advising the public that Pacific Rim Region, Public Buildings Service. Please note: Submit all comments the Draft EA prepared for the [FR Doc. 2020–10426 Filed 5–14–20; 8:45 am] through the Federal eRulemaking portal construction of a standalone FMCSA BILLING CODE 6820–YF–P (regulations.gov) or by U.S. mail to the Bus Inspection Facility at the San address listed above. Ysidro LPOE in San Diego, California is FOR FURTHER INFORMATION CONTACT: To available for public comment. DEPARTMENT OF HEALTH AND request more information on the The Draft EA is being prepared to HUMAN SERVICES proposed project or to obtain a copy of comply with the National the information collection plan and Environmental Policy Act (NEPA) of Centers for Disease Control and instruments, contact Jeffrey M. Zirger, of 1969, as amended (42 U.S. Code [U.S.C.] Prevention the Information Collection Review 4321), as implemented by Council on [60Day–20–20MZ; Docket No. CDC–2020– Office, Centers for Disease Control and Environmental Quality (CEQ) 0043] Prevention, 1600 Clifton Road NE, MS– regulations (40 Code of Federal D74, Atlanta, Georgia 30329; phone: Regulations [CFR] 1500–1508), and Proposed Data Collection Submitted 404–639–7570; Email: [email protected]. policies of the GSA as the lead federal for Public Comment and SUPPLEMENTARY INFORMATION: Under the agency. The EA process provides steps Recommendations and procedures to evaluate the potential Paperwork Reduction Act of 1995 (PRA) social, economic, and environmental AGENCY: Centers for Disease Control and (44 U.S.C. 3501–3520), Federal agencies impacts for the construction of the Prevention (CDC), Department of Health must obtain approval from the Office of proposed FMCSA Bus Inspection and Human Services (HHS). Management and Budget (OMB) for each Facility at the San Ysidro LPOE while ACTION: Notice with comment period. collection of information they conduct providing an opportunity for local, state, or sponsor. In addition, the PRA also or federal agencies to provide input SUMMARY: The Centers for Disease requires Federal agencies to provide a and/or comment through scoping, Control and Prevention (CDC), as part of 60-day notice in the Federal Register public information meetings, and/or a its continuing effort to reduce public concerning each proposed collection of public hearing. The social, economic, burden and maximize the utility of information, including each new and environmental considerations are government information, invites the proposed collection, each proposed evaluated and measured, as defined in general public and other Federal extension of existing collection of the CEQ regulations, by their magnitude agencies the opportunity to comment on information, and each reinstatement of of impacts. a proposed and/or continuing previously approved information The bus inspection station allows for information collection, as required by collection before submitting the FMCSA to conduct proper inspection of the Paperwork Reduction Act of 1995. collection to the OMB for approval. To buses entering the United States from This notice invites comment on a comply with this requirement, we are Mexico. FMCSA is required to conduct proposed information collection project publishing this notice of a proposed a sufficient number of meaningful titled ‘‘Emerging Infections Program data collection as described below. vehicle safety inspections and to (EIP) Tracking of SARS–CoV–2 The OMB is particularly interested in accommodate vehicles placed out of Infections among Healthcare comments that will help: service as a result of said inspections. Personnel’’. Through this project, EIP 1. Evaluate whether the proposed The current bus inspection operations at staff will collect data to: (1) Determine collection of information is necessary the San Ysidro LPOE lacks the proper the extent of COVID–19 among HCP for the proper performance of the infrastructure for bus inspections and is working in U.S. healthcare facilities; (2) functions of the agency, including not adequate to maintain regular describe characteristics of HCP exposed whether the information will have inspections. Therefore, the LPOE does to or infected with SARS–CoV–2, practical utility;

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2. Evaluate the accuracy of the infections and identify factors of facilities may participate. Each EIP agency’s estimate of the burden of the associated with development of COVID– site will seek to identify three or more proposed collection of information, 19 among HCP of healthcare facilities facilities to participate. including the validity of the within catchment areas of CDC’s For option 1, EIP staff will obtain lists methodology and assumptions used; Emerging Infection Program’s (EIP) sites, of HCP cases and contact information 3. Enhance the quality, utility, and a network of 10 state health departments from local or state health department clarity of the information to be and their local public health and partners or in some cases from a collected; and academic partners. The EIP is currently healthcare facility’s occupational health 4. Minimize the burden of the approved under OMB Control No. 0920– department or infection control collection of information on those who 0978 (expiration date: 04/30/2022). EIPs program. To minimize burden on are to respond, including through the assist in local, state, and national efforts healthcare facilities, EIP staff will use of appropriate automated, to prevent, control, and monitor the attempt to obtain HCP lists and contact electronic, mechanical, or other public health impact of infectious information from health departments technological collection techniques or diseases. The 10 EIP sites are: whenever possible. other forms of information technology, California, Colorado, Connecticut, e.g., permitting electronic submissions Georgia, Maryland, Minnesota, New For option 2, EIP staff may need to of responses. Mexico, New York, Oregon and work directly with a healthcare facility’s 5. Assess information collection costs. Tennessee. Up to 10 EIP sites may occupational health department or participate in this information infection control program to obtain HCP Proposed Project collection, depending on resource names and contact information because Emerging Infections Program Tracking availability during the pandemic. this option requires identification and of SARS–CoV–2 Infections among EIP sites that participate in this data collection from HCP non-cases Healthcare Personnel—New—National project may choose to implement one or (HCP who are exposed to COVID–19 Center for Emerging and Zoonotic both project options below: patients but who do not develop Infectious Diseases (NCEZID), Centers • Option 1: Tracking of SARS–CoV– infection). for Disease Control and Prevention 2 infections among HCP; • For both options, EIP staff will collect (CDC). Option 2: Assessing risk factors for data from HCP via telephone interviews infections among HCP exposed to Background and Brief Description or a self-administered electronic case patients with COVID–19 in healthcare report form. There are no costs to CDC proposes to conduct tracking and facilities. respondents other than their time to interviews of healthcare personnel EIP site staff will identify a participate. The total estimated (HCP) with COVID–19 (HCP cases) and convenience sample of healthcare annualized burden hours requested for HCP exposed to COVID–19 patients but facilities within the EIP catchment this collection is 2,300. who do not become cases (HCP non- areas. Hospitals and nursing homes are cases) to determine the burden of prioritized for inclusion, but other types Estimated Annualized Burden Hours

Average Number of Number of burden per Total burden Type of respondents Form name respondents responses per response (in hours) respondent (in hours)

Healthcare Personnel...... Assessment of Healthcare Per- 4,000 1 30/60 2,000 sonnel. Exposed to or Infected with SARS– CoV–2. Occupational Health Nurses at No form ...... 50 24 15/60 300 Healthcare Facilities.

Total ...... 2,300

Jeffrey M. Zirger, DEPARTMENT OF HEALTH AND Office of Management and Budget Lead, Information Collection Review Office, HUMAN SERVICES (OMB) for review and approval. CDC Office of Scientific Integrity, Office of Science, previously published a ‘‘Proposed Data Centers for Disease Control and Prevention. Centers for Disease Control and Collection Submitted for Public [FR Doc. 2020–10410 Filed 5–14–20; 8:45 am] Prevention Comment and Recommendations’’ BILLING CODE 4163–18–P notice on July 5, 2019, to obtain [30Day–20–20HP] comments from the public and affected agencies. CDC did not receive comments Agency Forms Undergoing Paperwork related to the previous notice. This Reduction Act Review notice serves to allow an additional 30 In accordance with the Paperwork days for public and affected agency Reduction Act of 1995, the Centers for comments. Disease Control and Prevention (CDC) CDC will accept all comments for this has submitted the information proposed information collection project. collection request titled National The Office of Management and Budget Evaluation of the DP18–1815 is particularly interested in comments Cooperative Agreement Program: that: Category B, Cardiovascular Disease (a) Evaluate whether the proposed Prevention and Management to the collection of information is necessary

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for the proper performance of the recently launched five-year Cooperative five-year cooperative agreement period, functions of the agency, including Agreement program CDC–RFA–DP18– CDC will work with HD recipients to whether the information will have 1815PPHF18: Improving the Health of track the implementation of the practical utility; Americans Through Prevention and cooperative agreement strategies and (b) Evaluate the accuracy of the Management of Diabetes and Heart evaluate program processes and agencies estimate of the burden of the Disease and Stroke, hereafter referred to outcomes. In order to collect this proposed collection of information, as ‘‘1815’’. This cooperative agreement information for Category B, CDC has including the validity of the funds all 50 State Health Departments designed three overarching components: methodology and assumptions used; and the Washington, DC health (1) Category B case studies, (2) Category (c) Enhance the quality, utility, and department (hereafter referred to as ‘‘HD B cost study, and (3) Category B clarity of the information to be recipients’’) to support investments in recipient-led evaluations. Each collected; implementing evidence-based strategies component consists of data collection (d) Minimize the burden of the to prevent and manage cardiovascular mechanisms and tools that are designed collection of information on those who disease (CVD) and diabetes in high- to capture the most relevant information are to respond, including through the burden populations/communities needed to inform the evaluation effort use of appropriate automated, within each state and the District of while placing minimum burden on electronic, mechanical, or other Columbia. High burden populations/ respondents. Respondents will include technological collection techniques or communities are those affected HD recipients, as well as select HD other forms of information technology, disproportionately by high blood e.g., permitting electronic submission of recipient partner sites, which are pressure, high blood cholesterol, organizations that HD recipients are responses; and diabetes, or prediabetes due to (e) Assess information collection partnering with in the implementation socioeconomic or other characteristics, costs. of the 1815 strategies. including access to care, poor quality of To request additional information on The evaluation of cooperative care, or low income. The 1815 program the proposed project or to obtain a copy agreement strategies and activities is a collaboration between the Division of the information collection plan and conducted by DHDSP will determine of Diabetes Translation (DDT) and the instruments, call (404) 639–7570. the efficiency, effectiveness, impact and Comments and recommendations for the Division of Heart Disease and Stroke Prevention (DHDSP), and is structured sustainability of 1815-funded strategies proposed information collection should in the promotion, prevention, and be sent within 30 days of publication of into two program categories aligning with each Division. management of diabetes and heart this notice to www.reginfo.gov/public/ disease and help identify promising do/PRAMain. Find this particular This information collection request focuses on activities conducted under practices that can be replicated and information collection by selecting scaled to better improve health ‘‘Currently under 30-day Review—Open Category B, Cardiovascular Disease Prevention and Management. Progress outcomes. In addition, evaluation plays for Public Comments’’ or by using the a critical role in organizational learning, search function. Direct written will be assessed for three CVD program areas: (1) Tracking and monitoring program planning, decision-making, and comments and/or suggestions regarding measurement of the 1815 strategies. As the items contained in this notice to the clinical quality measures (CQM) shown to improve healthcare quality and an action-oriented process, the Attention: CDC Desk Officer, Office of evaluation will serve to identify Management and Budget, 725 17th identify patients with hypertension; (2) Implementing team-based care and programs that have positive outcomes, Street NW, Washington, DC 20503 or by identify those that may need additional fax to (202) 395–5806. Provide written medication therapy management (TBC/ MTM) for patients with high blood technical assistance support, and comments within 30 days of notice highlight the specific activities that publication. pressure and high blood cholesterol; and (3) Fostering community-clinical make the biggest contribution to Proposed Project linkages (CCL) for community resources improving diabetes and cardiovascular disease prevention and management National Evaluation of the DP18–1815 and clinical services that support efforts. Without collection of new Cooperative Agreement Program: systematic referrals, self-management, evaluative data, CDC will not be able to Category B, Cardiovascular Disease and lifestyle change for patients with capture critical information needed to Prevention and Management—New— high blood pressure and high blood continuously improve programmatic National Center for Chronic Disease cholesterol. efforts and clearly demonstrate the use Prevention and Health Promotion This cooperative agreement is a of federal funds. (NCCDPHP), Centers for Disease Control substantial investment of federal funds. and Prevention (CDC). DDT and DHDSP are responsible for the OMB approval is requested for three stewardship of these funds, and they years. Participation is required for Background and Brief Description must be able to demonstrate the types of cooperative agreement awardees and The Centers for Disease Control and interventions being implemented and voluntary for partner sites. The total Prevention (CDC) plans to conduct a what is being accomplished through the estimated annualized burden hours are comprehensive evaluation of the use of these funds. Thus, throughout the 743.

ESTIMATED ANNUALIZED BURDEN HOURS

Average Number of Number of burden per Type of respondent Form name respondents responses per response respondent (in hours)

Health Department (1815 Recipient) ...... CQM Health Department Interview Guide ..... 17 1 1.5 CQM Group Discussion Guide ...... 27 1 2 TBC Health Department Interview Guide ...... 9 1 1.5

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ESTIMATED ANNUALIZED BURDEN HOURS—Continued

Average Number of Number of burden per Type of respondent Form name respondents responses per response respondent (in hours)

MTM Health Department Interview Guide ..... 8 1 1.5 TBC Group Discussion Guide ...... 27 1 2 CCL Health Department Interview Guide ...... 17 1 1.5 CCL Group Discussion Guide ...... 27 1 2 Cost Study Resource Use and Cost Study 8 1 2 Inventory Tool—Health Department. Recipient-Led Evaluation Annual Report 51 1 8 Template—Year 3 Effectiveness Brief. Partner/Site-Level ...... CQM Partner Site-Level Interview Guide ...... 15 1 1 TBC Partner Site-Level Interview Guide ...... 8 1 1 MTM Partner Site-Level Interview Guide ...... 7 1 1 CCL Partner Site-Level Informant Interview 15 1 1 Guide. Cost Study Resource Use and Cost Inven- 17 1 2 tory Tool—Partner/Site Level.

Jeffrey M. Zirger, ADDRESSES: You may submit comments, collection to the OMB for approval. To Lead, Information Collection Review Office, identified by Docket No. CDC–2020– comply with this requirement, we are Office of Scientific Integrity, Office of Science, 0045 by any of the following methods: publishing this notice of a proposed Centers for Disease Control and Prevention. • Federal eRulemaking Portal: data collection as described below. [FR Doc. 2020–10409 Filed 5–14–20; 8:45 am] Regulations.gov. Follow the instructions The OMB is particularly interested in BILLING CODE 4163–18–P for submitting comments. comments that will help: • Mail: Jeffrey M. Zirger, Information 1. Evaluate whether the proposed Collection Review Office, Centers for collection of information is necessary DEPARTMENT OF HEALTH AND Disease Control and Prevention, 1600 for the proper performance of the HUMAN SERVICES Clifton Road NE, MS–D74, Atlanta, functions of the agency, including Georgia 30329. whether the information will have Centers for Disease Control and Instructions: All submissions received practical utility; Prevention must include the agency name and 2. Evaluate the accuracy of the Docket Number. CDC will post, without agency’s estimate of the burden of the [60Day-20–20NE; Docket No. CDC–2020– change, all relevant comments to proposed collection of information, 0045] Regulations.gov. including the validity of the Please note: Submit all comments through methodology and assumptions used; Proposed Data Collection Submitted the Federal eRulemaking portal 3. Enhance the quality, utility, and for Public Comment and (regulations.gov) or by U.S. mail to the clarity of the information to be Recommendations address listed above. collected; and 4. Minimize the burden of the FOR FURTHER INFORMATION CONTACT: To AGENCY: Centers for Disease Control and collection of information on those who request more information on the Prevention (CDC), Department of Health are to respond, including through the proposed project or to obtain a copy of and Human Services (HHS). use of appropriate automated, the information collection plan and electronic, mechanical, or other ACTION: Notice with comment period. instruments, contact Jeffrey M. Zirger, technological collection techniques or Information Collection Review Office, other forms of information technology, SUMMARY: The Centers for Disease Centers for Disease Control and e.g., permitting electronic submissions Control and Prevention (CDC), as part of Prevention, 1600 Clifton Road NE, MS– of responses. its continuing effort to reduce public D74, Atlanta, Georgia 30329; phone: 5. Assess information collection costs. burden and maximize the utility of 404–639–7118; Email: [email protected]. government information, invites the SUPPLEMENTARY INFORMATION: Under the Proposed Project general public and other Federal Paperwork Reduction Act of 1995 (PRA) Infant Feeding Practices Study III– agencies the opportunity to comment on (44 U.S.C. 3501–3520), Federal agencies a proposed and/or continuing New–National Center for Chronic must obtain approval from the Office of Disease Prevention and Health information collection, as required by Management and Budget (OMB) for each the Paperwork Reduction Act of 1995. Promotion (NCCDPHP), Centers for collection of information they conduct Disease Control and Prevention (CDC). This notice invites comment on a or sponsor. In addition, the PRA also proposed information collection project requires Federal agencies to provide a Background and Brief Description titled Infant Feeding Practices Study III 60-day notice in the Federal Register Infant Feeding Practices Study (IFPS) to understand the current state of concerning each proposed collection of III is a longitudinal study that will mothers’ intentions, behaviors, feeding information, including each new follow pregnant women and their new decisions, and practices from pregnancy proposed collection, each proposed baby for two years. Data will be through their child’s first two years of extension of existing collection of collected using web-based surveys at life and how these change. information, and each reinstatement of multiple time points over two years. DATES: CDC must receive written previously approved information This includes (1) a prenatal survey, (2) comments on or before July 14, 2020. collection before submitting the 14 follow up surveys after the baby is

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born, and (3) 2–4 maternal dietary data toddler nutrition through work in birth to 24 months of age for the first recalls. The data from IFPS III will be hospitals, with health care providers, time in 2020–2025. CDC requests used to: Fill research gaps on how with early care and education providers, approval of 5,051 annualized burden feeding behaviors, patterns, and and outreach to families and caregivers; hours for this collection. There is no practices change over the first two years and provide context to policy level cost to respondents other than their of life and the health-related impacts; documents such as the U.S. Dietary time. inform multiple federal agency efforts Guidelines for Americans, which will targeting maternal and infant and include pregnant women and children

ESTIMATED ANNUALIZED BURDEN HOURS

Average Number of Number of burden per Total Respondents Form name respondents responses per response annualized respondent (in hours) burden hours

Pregnant/Postpartum Women ...... Study Screener ...... 7,477 1 3/60 125 Study Consent ...... 4,711 1 5/60 131 Prenatal Survey ...... 4,239 1 20/60 471 24-Hour Dietary Recall—Prenatal .... 2,756 1 24/60 367 Replicate 24-Hour Dietary Recall— 269 1 24/60 36 Prenatal. Request for notification of child’s 4,239 1 2/60 47 birth. Birth Screener ...... 4,103 1 2/60 46 1-Month Survey ...... 3,693 1 20/60 410 2-Month Survey ...... 3,575 1 15/60 298 3-Month Survey ...... 3,460 1 15/60 288 24-Hour Dietary Recall—Month 3 .... 2,249 1 24/60 300 Replicate 24-Hour Dietary Recall— 219 1 24/60 29 Month 3. 4-Month Survey ...... 3,350 1 15/60 279 5-Month Survey ...... 3,243 1 15/60 270 6-Month Survey ...... 3,139 1 15/60 262 8-Month Survey ...... 3,038 1 15/60 253 10-Month Survey ...... 2,941 1 20/60 327 12-Month Survey ...... 2,847 1 15/60 237 15-Month Survey ...... 2,756 1 15/60 230 18-Month Survey ...... 2,668 1 15/60 222 21-Month Survey ...... 2,582 1 15/60 215 24-Month Survey ...... 2,500 1 15/60 208

Total ...... 5,051

Jeffrey M. Zirger, Volume 85, Number 84, pages 23965– Dated: May 11, 2020. Lead, Information Collection Review Office, 23966. Kalwant Smagh, Office of Scientific Integrity, Office of Science, This meeting is being canceled in its Director, Strategic Business Initiatives Unit, Centers for Disease Control and Prevention. entirety. Office of the Chief Operating Officer, Centers [FR Doc. 2020–10412 Filed 5–14–20; 8:45 am] for Disease Control and Prevention. BILLING CODE 4163–18–P FOR FURTHER INFORMATION CONTACT: Koo- [FR Doc. 2020–10417 Filed 5–14–20; 8:45 am] Whang Chung, M.P.H., HICPAC, BILLING CODE 4163–18–P Division of Healthcare Quality DEPARTMENT OF HEALTH AND Promotion, NCEZID, CDC, 1600 Clifton HUMAN SERVICES Road NE, MS H16–3, Atlanta, Georgia DEPARTMENT OF HEALTH AND 30329–4027; Telephone: 404–639–4000; HUMAN SERVICES Centers for Disease Control and Email: [email protected]. Prevention Centers for Disease Control and The Director, Strategic Business Prevention Initiatives Unit, Office of the Chief [Docket No. CDC–2020–0047] Operating Officer, Centers for Disease [60Day–20–20ND; Docket No. CDC–2020– Healthcare Infection Control Practices Control and Prevention, has been 0044] Advisory Committee (HICPAC); delegated the authority to sign Federal Cancellation of Meeting Register notices pertaining to Proposed Data Collection Submitted announcements of meetings and other for Public Comment and Notice is hereby given of a change in committee management activities, for Recommendations the meeting of the Healthcare Infection both the Centers for Disease Control and Control Practices Advisory Committee Prevention and the Agency for Toxic AGENCY: Centers for Disease Control and (HICPAC); [Docket No. CDC–2020– Substances and Disease Registry. Prevention (CDC), Department of Health 0047]; May 15, 2020, 3:00 p.m. to 4:30 and Human Services (HHS). p.m., EDT, which was published in the ACTION: Notice with comment period. Federal Register on April 30, 2020,

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SUMMARY: The Centers for Disease collection, each proposed extension of We propose to conduct an Control and Prevention (CDC), as part of existing collection of information, and investigation to (1) determine the extent its continuing effort to reduce public each reinstatement of previously of infection in communities as burden and maximize the utility of approved information collection before determined by overall SARS–CoV–2 government information, invites the submitting the collection to the OMB for seroprevalence; and (2) determine general public and other Federal approval. To comply with this factors associated with SARS–CoV–2 agencies the opportunity to comment on requirement, we are publishing this seropositivity among persons residing in a proposed and/or continuing notice of a proposed data collection as areas with evidence of community information collection, as required by described below. transmission. The data collected under the Paperwork Reduction Act of 1995. The OMB is particularly interested in this information collection request (ICR) This notice invites comment on a comments that will help: will be used immediately by CDC’s 1. Evaluate whether the proposed proposed information collection project emergency COVID–19 response at the collection of information is necessary titled Investigation of SARS–CoV–2 national level, and by state and local Seroprevalence and Factors Associated for the proper performance of the functions of the agency, including health departments, to understand the with Seropositivity in a Community cumulative incidence in a given Setting. CDC will, at the request of state whether the information will have practical utility; population within their jurisdiction. A and local health departments, collect cross-sectional household survey design epidemiological data and blood samples 2. Evaluate the accuracy of the agency’s estimate of the burden of the will be used to measure SARS–CoV–2 from households to determine the extent seroprevalence at one or more time of COVID–19 infection in communities proposed collection of information, including the validity of the points in ≥1 U.S. areas with evidence of as determined by overall SARS–CoV–2 community transmission of SARS–CoV– seroprevalence. methodology and assumptions used; 3. Enhance the quality, utility, and 2. Areas with existing population-based DATES: CDC must receive written clarity of the information to be surveillance platforms with well- comments on or before July 14, 2020. collected; and defined catchment areas will be ADDRESSES: You may submit comments, 4. Minimize the burden of the preferentially selected. The identified by Docket No. CDC–2020– collection of information on those who investigation population will consist of 0044 by any of the following methods: are to respond, including through the all persons residing in selected • Federal eRulemaking Portal: use of appropriate automated, households from selected defined Regulations.gov. Follow the instructions electronic, mechanical, or other geographic areas, according to the for submitting comments. technological collection techniques or sampling framework. CDC and health • Mail: Jeffrey M. Zirger, Information other forms of information technology, departments alike will use this Collection Review Office, Centers for e.g., permitting electronic submissions seroprevalence data to prioritize the Disease Control and Prevention, 1600 of responses. allocation of resources and response 5. Assess information collection costs. Clifton Road NE, MS–D74, Atlanta, efforts. Georgia 30329. Proposed Project Instructions: All submissions received CDC will collect epidemiological must include the agency name and Investigation of SARS–CoV–2 information in the form of a Docket Number. CDC will post, without Seroprevalence and Factors Associated standardized questionnaire which will change, all relevant comments to with Seropositivity in a Community capture information on household Regulations.gov. Setting—New—National Center for characteristics, age, sex, race, ethnicity, Please note: Submit all comments Immunization and Respiratory Diseases exposures, underlying medical through the Federal eRulemaking portal (NCIRD), Centers for Disease Control conditions and symptoms consistent (regulations.gov) or by U.S. mail to the and Prevention (CDC). with COVID–19 infection that occurred address listed above. Background and Brief Description prior to the survey. One respondent in FOR FURTHER INFORMATION CONTACT: To each household (an adult who knows all The Centers for Disease Control and residents of the household) will provide request more information on the Prevention (CDC), National Center for responses for the household proposed project or to obtain a copy of Immunization and Respiratory Diseases questionnaire. The household the information collection plan and (NCRID), Division of Viral Diseases questionnaire will capture information instruments, contact Jeffrey M. Zirger, (DVD) requests approval for a new Information Collection Review Office, information collection, ‘‘Investigation of on household characteristics and Centers for Disease Control and SARS–CoV–2 Seroprevalence and document all household members, Prevention, 1600 Clifton Road NE, MS– Factors Associated with Seropositivity whether they are present at the time of D74, Atlanta, Georgia 30329; phone: in a Community Setting.’’ Coronavirus the visit or not. Blood samples will be 404–639–7570; Email: [email protected]. disease 2019 (COVID–19), caused by the collected by trained phlebotomists from SUPPLEMENTARY INFORMATION: severe acute respiratory syndrome all individuals in the household and Under the Paperwork Reduction Act coronavirus 2 (SARS–CoV–2), was first tested for antibodies to SARS–CoV–2 of 1995 (PRA) (44 U.S.C. 3501–3520), reported in Wuhan, Hubei Province, using an enzyme-linked immunosorbent Federal agencies must obtain approval China in late December 2019. On assay with confirmatory from the Office of Management and February 26, 2020, CDC announced that microneutralization testing as needed. Budget (OMB) for each collection of an infection with the novel coronavirus Investigations will be conducted at a information they conduct or sponsor. In had been confirmed ‘‘in a person who total of four sites throughout the addition, the PRA also requires Federal reportedly did not have relevant travel clearance period. There are no costs to agencies to provide a 60-day notice in history or exposure to another known respondents other than their time to the Federal Register concerning each patient with COVID–19,’’ making this participate. The total estimated proposed collection of information, the first suspected United States (U.S.) annualized burden hours requested for including each new proposed case of community transmission. this collection is 2,420.

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ESTIMATED ANNUALIZED BURDEN HOURS

Average Number of Number of burden per Total burden Type of respondents Form name respondents responses per response (in hours) respondent (in hours)

Household Participants ...... Individual Questionnaire ...... 4,000 1 20/60 1,333 Household Questionnaire ...... 1,680 1 15/60 420 Blood collection (no form) ...... 4,000 1 10/60 667

Total ...... 2,420

Jeffrey M. Zirger, for Disease Control and Prevention, analyses, or subsequent analyses? How Lead, Information Collection Review Office, 1600 Clifton Road NE, Mailstop V24–3, long should these NGS data files be Office of Scientific Integrity, Office of Science, Atlanta, GA 30329, Attn: Docket No. retained? Centers for Disease Control and Prevention. CDC–2020–0051. (5) What are the challenges and [FR Doc. 2020–10411 Filed 5–14–20; 8:45 am] Instructions: All submissions received approaches for laboratories to maintain BILLING CODE 4163–18–P must include the agency name and and utilize previous versions of Docket Number. All relevant comments sequence analysis software? received will be posted without change Please note that comments received, DEPARTMENT OF HEALTH AND to https://www.regulations.gov, including attachments and other HUMAN SERVICES including any personal information supporting materials, are part of the provided. For access to the docket to public record and are subject to public Centers for Disease Control and read background documents or disclosure. Comments will be posted on Prevention comments received, go to https:// https://www.regulations.gov. Therefore, [Docket No. CDC–2020–0051] www.regulations.gov. do not include any information in your comment or supporting materials that Request for Information Concerning FOR FURTHER INFORMATION CONTACT: you consider confidential or Personnel and the Retention of Next Heather Stang, MS, MT, Center for inappropriate for public disclosure. If Generation Sequencing Data in Clinical Surveillance, Epidemiology and you include your name, contact and Public Health Laboratories Laboratory Services, Centers for Disease information, or other information that Control and Prevention, 1600 Clifton identifies you in the body of your AGENCY: Centers for Disease Control and Road NE, Mailstop V24–3, Atlanta, comments, that information will be on Prevention (CDC), Department of Health Georgia 30329–4018, telephone (800) public display. Do not submit public and Human Services (HHS). 232–4636; email: [email protected]. comments by email. CDC will review all ACTION: Notice with request for SUPPLEMENTARY INFORMATION: submissions and may choose to redact, comment. Public Participation or withhold, submissions containing private or proprietary information such SUMMARY: The Centers for Disease Interested persons or organizations Control and Prevention (CDC) in the as Social Security numbers, medical are invited to participate by submitting information, inappropriate language, or Department of Health and Human written views, recommendations, and Services (HHS) announces the opening duplicate/near duplicate examples of a data about topics related to personnel mass-mail campaign. of a docket to obtain public comment on performing informatics activities, as personnel performing bioinformatics well as data storage and retention Background and Brief Description activities in clinical and public health practices related to the use of next Clinical laboratory testing technology laboratories; storage and retention of generation sequencing (NGS) has advanced significantly since the next generation sequencing (NGS) data technology. In addition, CDC invites CLIA regulations were first files; and maintenance of sequence comments specifically on the following implemented approximately 30 years analysis software. The comments will be questions: ago. Next generation sequencing (NGS) used by the Clinical Laboratory (1) What are the roles and technologies provide the high- Improvement Advisory Committee responsibilities for all personnel throughput capability to rapidly and (CLIAC) for deliberation and possible performing bioinformatics or pathology/ cost-effectively sequence large regions recommendations about future changes laboratory informatics activities? What and mixed populations of DNA and to the Clinical Laboratory Improvement training is considered essential for each RNA, when compared to traditional Amendments of 1988 (CLIA) of the roles? What competencies are sequencing methods. This technology regulations. considered essential for each of the results in a significant increase in data DATES: Written comments must be roles? What minimum educational that requires specialized analysis to received on or before July 14, 2020. requirements (degrees or courses) are derive a clinically meaningful result. ADDRESSES: You may submit comments, required for each of the roles? NGS has led to improvements in identified by Docket No. CDC–2020– (2) What are the challenges for diagnoses and patient care in many 0051 by any of the following methods. recruitment and retention of areas of medicine that include medical CDC does not accept public comment by bioinformatics or pathology/laboratory genetics, pediatrics, oncology, and email. informatics personnel? microbiology. In some instances, NGS • Federal eRulemaking Portal: (3) What are examples of how NGS has led to life-saving diagnoses and https://www.regulations.gov. Follow the data files are used in addition to treatment pathways, not achievable instructions for submitting comments. generating a clinical test result? using other testing modalities. One • Mail: Heather Stang, MS, MT, (4) What NGS data files should be element that differentiates NGS from Division of Laboratory Systems, Centers retained for quality assurance, repeat most laboratory methodologies is its

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significant reliance on informatics to CDC requests comment from the public (e) Assess information collection achieve a meaningful and reportable on this topic. costs. result. As a consequence, clinical Dated: May 12, 2020. To request additional information on laboratories require personnel the proposed project or to obtain a copy Sandra Cashman, knowledgeable in bioinformatics or of the information collection plan and pathology/laboratory informatics to Executive Secretary, Centers for Disease instruments, call (404) 639–7570. Control and Prevention. design and manage the bioinformatics Comments and recommendations for the analysis. [FR Doc. 2020–10461 Filed 5–14–20; 8:45 am] proposed information collection should While CLIA regulations apply to BILLING CODE 4163–18–P be sent within 30 days of publication of clinical NGS testing, there is a lack of this notice to www.reginfo.gov/public/ clarity regarding how the general CLIA do/PRAMain. Find this particular quality system and personnel DEPARTMENT OF HEALTH AND information collection by selecting requirements should be specifically HUMAN SERVICES ‘‘Currently under 30-day Review—Open implemented for the NGS Centers for Disease Control and for Public Comments’’ or by using the bioinformatics components. In April Prevention search function. Direct written 2019, CLIAC made eight comments and/or suggestions regarding recommendations regarding CLIA’s [30Day–20–19BHC] the items contained in this notice to the application to NGS-based technologies. Attention: CDC Desk Officer, Office of This request for information is soliciting Agency Forms Undergoing Paperwork Management and Budget, 725 17th comments from the public for more Reduction Act Review Street NW, Washington, DC 20503 or by information on topic areas mentioned in fax to (202) 395–5806. Provide written In accordance with the Paperwork two of the recommendations, comments within 30 days of notice Reduction Act of 1995, the Centers for specifically, the qualifications of publication. Disease Control and Prevention (CDC) personnel performing bioinformatics has submitted the information Proposed Project activities; storage and retention of NGS collection request titled National data files; and maintenance of sequence National Evaluation of the DP18–1815 Evaluation of the DP18–1815 analysis software. The April 2019 Cooperative Agreement Program: Cooperative Agreement Program: CLIAC summary is available in the Category A, Diabetes Management and Category A, Diabetes Management and docket under the Supporting Materials Type 2 Diabetes Prevention—New— tab and at https://www.cdc.gov/cliac/ Type 2 Diabetes Prevention to the Office National Center for Chronic Disease past-meetings.html. of Management and Budget (OMB) for Prevention and Health Promotion The qualifications and responsibilities review and approval. CDC previously (NCCDPHP), Centers for Disease Control of personnel performing the informatics published a ‘‘Proposed Data Collection and Prevention (CDC). Submitted for Public Comment and component of the testing process are not Background and Brief Description addressed in the CLIA regulations. For Recommendations’’ notice on July 5, the purpose of this request for 2019, to obtain comments from the The Centers for Disease Control and information, the informatics component public and affected agencies. CDC did Prevention (CDC) Division of Diabetes of NGS includes the analysis of NGS not receive comments related to the Translation (DDT) and Division for machine-generated data and subsequent previous notice. This notice serves to Heart Disease and Stroke Prevention computational processes. Therefore, allow an additional 30 days for public (DHDSP) are submitting this new CDC is asking the public to describe and affected agency comments. information collection request (ICR) for different responsibilities of personnel CDC will accept all comments for this an evaluation of the recently launched providing bioinformatics or pathology/ proposed information collection project. five-year Cooperative Agreement laboratory informatics expertise such as The Office of Management and Budget program CDC–RFA–DP18–1815PPHF18: validating and assuring that the is particularly interested in comments Improving the Health of Americans informatics pipeline meets documented that: Through Prevention and Management of performance specifications. (a) Evaluate whether the proposed Diabetes and Heart Disease and Stroke, CDC is also interested in learning the collection of information is necessary hereafter referred to as ‘‘1815’’. This skills, training, and education of for the proper performance of the cooperative agreement funds all 50 State personnel who will fill bioinformatics functions of the agency, including Health Departments and the or pathology/laboratory informatics whether the information will have Washington, DC health department positions, and how clinical and public practical utility; (hereafter referred to as ‘‘HD health laboratories can recruit and (b) Evaluate the accuracy of the recipients’’) to support investments in retain personnel with these identified agencies estimate of the burden of the implementing evidence-based strategies skills. proposed collection of information, to prevent and manage cardiovascular Lastly, the NGS testing process including the validity of the disease (CVD) and diabetes in high- generates large amounts of data and methodology and assumptions used; burden populations/communities requires multiple file types. CLIA (c) Enhance the quality, utility, and within each state and the District of regulations specify at 42 CFR clarity of the information to be Columbia. High burden populations/ 493.1105(a)(3) that all analytic systems collected; communities are those affected records must be kept for at least two (d) Minimize the burden of the disproportionately by high blood years, but the regulations do not specify collection of information on those who pressure, high blood cholesterol, the types of data to be captured or the are to respond, including, through the diabetes, or prediabetes due to retention time for a given data type. The use of appropriate automated, socioeconomic or other characteristics, regulations do not address the capability electronic, mechanical, or other including access to care, poor quality of to access and reanalyze the data after technological collection techniques or care, or low income. The 1815 program the test is performed. This capability other forms of information technology, is a collaboration between DDT and may require retention of the version of e.g., permitting electronic submission of DHDSP and is structured into two software used in the original analysis. responses; and program categories aligning with each

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Division: Category A focuses on diabetes DSMES and National DPP partner sites a critical role in organizational learning, management and type 2 diabetes and (2) Category A recipient-led program planning, decision-making, and prevention; Category B focuses on CVD evaluations. Each component consists of measurement of the 1815 strategies. As prevention and management. This data collection mechanisms and tools an action-oriented process, the information request package focuses on that are designed to capture the most evaluation will serve to identify data collection activities for the relevant information needed to inform programs that have positive outcomes, Category A diabetes assessment. the evaluation effort while placing identify those that may need additional This cooperative agreement is a minimum burden on respondents. technical assistance support, and substantial investment of federal funds. Respondents will include HD recipients, highlight the specific activities that DDT and DHDSP are responsible for the as well as select HD recipient partner make the biggest contribution to stewardship of these funds, and they sites, which are organizations that HD improving diabetes and cardiovascular must be able to demonstrate the types of recipients are partnering with in the disease prevention and management interventions being implemented and implementation of the 1815 strategies. efforts. Without collection of new what is being accomplished through the The evaluation of cooperative evaluative data, CDC will not be able to use of these funds. Thus, throughout the agreement strategies and activities capture critical information needed to five-year cooperative agreement period, conducted by DDT will determine the continuously improve programmatic CDC will work with HD recipients to efficiency, effectiveness, impact and efforts and clearly demonstrate the use track the implementation of the sustainability of 1815-funded strategies of federal funds. cooperative agreement strategies and in the promotion, prevention, and OMB approval is requested for three evaluate program processes and management of diabetes and heart years. Participation is required for outcomes. In order to collect this disease and help identify promising cooperative agreement awardees and information for Category A, CDC has practices that can be replicated and voluntary for partner sites. The total designed two overarching components: scaled to better improve health estimated annualized burden hours are (1) Category A rapid evaluation of outcomes. In addition, evaluation plays 1,084.

ESTIMATED ANNUALIZED BURDEN HOURS

Average Number of Number of burden per Type of respondent Form name respondents responses per response respondent (in hours)

Health Department (1815 Re- Evaluation and Performance Measurement Plan (EPMP) .... 17 1 8 cipient). Recipient-Led Evaluation Reporting Template ...... 51 1 8 DSMES Partner Site-Level Rapid Evaluation Rapid Evalua- 17 1 0.5 tion Form. National DPP Partner Site-Level Rapid Evaluation Nomina- 17 1 0.5 tion Form. DSMES Partner Site ...... DSMES Partner Site-Level Rapid Evaluation Survey Ques- 340 1 0.5 tionnaire. Program Coordinator Interview Guide ...... 14 1 2 Professional Team Member Interview Guide ...... 28 1 2 Paraprofessional Team Member Interview Guide ...... 28 1 2 National DPP Partner Site ...... National DPP Partner Site-Level Rapid Evaluation Survey 340 1 0.5 Questionnaire. Program Coordinator Interview Guide ...... 14 1 1 Lifestyle Coach Interview Guide ...... 28 1 1

Jeffrey M. Zirger, SUMMARY: Pursuant to the Head Start restrictions. OHS will consider virtual Lead, Information Collection Review Office, Act, notice is hereby given of three 1- means of facilitating tribal consultations Office of Scientific Integrity, Office of Science, day tribal consultation sessions to be and/or the postponing of tribal Centers for Disease Control and Prevention. held between HHS/ACF OHS leadership consultations should travel restrictions [FR Doc. 2020–10408 Filed 5–14–20; 8:45 am] and the leadership of tribal governments and group meeting limitations remain in BILLING CODE 4163–18–P operating Head Start and Early Head effect. Start programs. The purpose of these DATES: July 9–10, 2020, 1 to 3 p.m. consultation sessions is to discuss ways July 14–16, 2020, 1 to 3 p.m. DEPARTMENT OF HEALTH AND to better meet the needs of American Aug. 3, 2020, 1 to 5 p.m. HUMAN SERVICES Indian and Alaska Native (AIAN) ADDRESSES: Administration for Children and children and their families, taking into • July 9–10, 2020—Glendale, AZ Families consideration funding allocations, (Location TBD) distribution formulas, and other issues • July 14–16, 2020—Denver, CO Tribal Consultation Meetings affecting the delivery of Head Start (Location TBD) services in their geographic locations. • Aug. 3, 2020—Spokane, WA AGENCY: Office of Head Start (OHS), Three tribal consultations will be held (Northern Quest Resort) Administration for Children and Families (ACF), U.S. Department of as part of HHS/ACF or ACF Tribal FOR FURTHER INFORMATION CONTACT: Health and Human Services (HHS). Consultation Sessions. Please note the Todd Lertjuntharangool, regional planned tribal consultation dates may program manager, Region XI/AIAN, ACTION: Notice of meetings. be impacted by COVID–19 travel Office of Head Start, email

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[email protected], or prior to each consultation session or the FDA docket number found in phone (202) 205–9503. Additional within 30 days after each meeting. brackets in the heading of this information and online meeting OHS will summarize oral testimony document. registration will be available at https:// and comments from the consultation eclkc.ohs.acf.hhs.gov/about-us/article/ sessions in each report without FOR FURTHER INFORMATION CONTACT: 2020-tribal-consultations. attribution, along with topics of concern Domini Bean, Office of Operations, and recommendations. Food and Drug Administration, Three SUPPLEMENTARY INFORMATION: In White Flint North, 10A–12M, 11601 accordance with Section 640(l)(4) of the Megan E. Steel, Landsdown St., North Bethesda, MD Head Start Act, 42 U.S.C. 9835(1)(4), Executive Secretariat Certifying Officer. 20852, 301–796–5733, PRAStaff@ ACF announces OHS Tribal [FR Doc. 2020–10440 Filed 5–14–20; 8:45 am] fda.hhs.gov. Consultation Sessions for leaders of BILLING CODE 4184–40–P tribal governments operating Head Start SUPPLEMENTARY INFORMATION: In and Early Head Start programs. The compliance with 44 U.S.C. 3507, FDA agenda for the scheduled OHS tribal DEPARTMENT OF HEALTH AND has submitted the following proposed consultations in Glendale, Arizona; HUMAN SERVICES collection of information to OMB for Spokane, Washington; and Denver, review and clearance. Colorado, will be organized around the Food and Drug Administration General Administrative Practice and statutory purposes related to meeting [Docket No. FDA–2019–N–6085] Procedures the needs of AIAN children and families, taking into consideration Agency Information Collection OMB Control Number 0910–0191— funding allocations, distribution Activities; Submission for Office of Revision formulas, and other issues affecting the Management and Budget Review; This information collection supports delivery of Head Start services in their Comment Request; General FDA regulations governing its geographic locations. In addition, OHS Administrative Practice and administrative practices and will share actions taken, and in Procedures progress, to address the issues and procedures. Although certain concerns raised in the 2019 OHS Tribal AGENCY: Food and Drug Administration, information collection pertaining to Consultations. HHS. official administrative actions is not The consultation sessions will be ACTION: Notice. subject to review by OMB under the conducted with elected or appointed PRA in accordance with 44 U.S.C. SUMMARY: The Food and Drug 3518(c)(1)(B) (5 CFR 1320.4(a)(2)), we leaders of tribal governments and their Administration (FDA) is announcing designated representatives. Designees have reviewed our regulations and are that a proposed collection of revising this information collection to must have a letter from the tribal information has been submitted to the government authorizing them to include provisions that we believe may Office of Management and Budget be subject to OMB review. We are also represent the tribe. Tribal governments (OMB) for review and clearance under must submit the designee letter at least revising the information collection to the Paperwork Reduction Act of 1995 consolidate related activities discussed 3 days in advance of the consultation (PRA). sessions to Todd Lertjuntharangool at in Agency guidance, as we believe this [email protected]. DATES: Submit written comments will improve the efficiency of our Other representatives of tribal (including recommendations) on the operations. organizations and Native nonprofit collection of information by June 15, In the Federal Register of January 9, organizations are welcome to attend as 2020. 2020 (85 FR 1169), we published a 60- observers. ADDRESSES: To ensure that comments on day notice soliciting comment on the A detailed report of each tribal the information collection are received, proposed collection of information. consultation session will be prepared OMB recommends that written Although two comments were received, and made available within 45 days of comments be submitted to https:// neither was directly responsive to the the session to all tribal governments www.reginfo.gov/public/do/PRAMain. information collection topics solicited. receiving funds for Head Start and Early Find this particular information At the same time, the comments were Head Start programs. Tribes wishing to collection by selecting ‘‘Currently under supportive of FDA information submit written testimony for the report Review—Open for Public Comments’’ or collection activity, and we appreciate should send testimony to Todd by using the search function. The OMB this input. Lertjuntharangool at control number for this information We estimate the burden of the [email protected], collection is 0910–0191. Also include information collection as follows:

TABLE 1—ESTIMATED ANNUAL REPORTING BURDEN 1

Number of Average 21 CFR section Number of responses per Total annual burden per Total hours respondents respondent responses response

10.19; request for waiver, suspension, or modification of requirements ...... 1 1 1 1 1 10.30 and 10.31; citizen petitions and petitions related to ANDA,2 certain NDAs,3 or certain BLAs 4 ...... 220 1 220 24 5,280 10.33; administrative reconsideration of action ...... 6 1 6 10 60 10.35; administrative stay of action ...... 5 1 5 10 50 10.65; meetings and correspondence ...... 750 1 750 5 3,750 10.85; requests for Advisory opinions ...... 4 1 4 16 64 10.115(f)(3); submitting draft guidance proposals ...... 100 1 100 4 400

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TABLE 1—ESTIMATED ANNUAL REPORTING BURDEN 1—Continued

Number of Average 21 CFR section Number of responses per Total annual burden per Total hours respondents respondent responses response

12.22—Filing objections and requests for a hearing on a regulation or order ...... 5 1 5 20 100 12.45—Notice of participation ...... 5 1 5 3 15

Total ...... 1,096 ...... 9,720 1 There are no capital costs or operating and maintenance costs associated with this collection of information. 2 Abbreviated new drug applications. 3 New drug applications. 4 Biologic license applications.

Unless a waiver, suspension, or average of 24 hours is required to on our experience with similar modification submitted under § 10.19 prepare such a petition, for a total of information collection. (21 CFR 10.19) is granted by the 5,280 hours annually. Section 10.85 (21 CFR 10.85), issued Commissioner of Food and Drugs (the The regulations also establish a means under section 701(a) of the FD&C Act, sets forth content, format, and Commissioner), the regulations in 21 by which an interested person may procedural requirements by which an CFR part 10 apply to all petitions, request that part or all of a decision by interested person may request an hearings, and other administrative the Commissioner be reconsidered, or advisory opinion from the proceedings and activities conducted by that the effective date of an action be FDA. Because we have not received Commissioner on a matter of general stayed or extended. Sections 10.33 and requests under § 10.19, we had not applicability. The regulation explains 10.35 (21 CFR 10.33 and 10.35) establish included this provision in the that, when making a request, the the content, format, and procedural information collection. However, to petitioner must provide a concise requirements applicable to such reflect the attendant burden resulting statement of the issues and questions on requests and explain that they must be from submitting such a request, we which an opinion is requested, and a submitted no later than 30 days after the provide an estimate of 1 response and full statement of the facts and legal decision involved. The regulations 1 burden hour annually. points relevant to the request. Based on provide alternatively that, for good Administrative proceedings may be Agency data, we estimate four such cause, the Commissioner may permit a initiated under § 10.25 (21 CFR 10.25) requests are received each year, and we petition to be filed after 30 days. The when a petition is submitted. Section assume each request requires 16 hours regulations also explain that an 10.30 (21 CFR 10.30) sets forth to prepare, for a total of 64 hours interested person who wishes to rely on procedures by which an interested annually. person may submit a citizen petition information or views not included in Section 10.115(f)(3) (21 CFR requesting the Commissioner to issue, the administrative record shall submit 10.115(f)(3)) provides for the public amend, or revoke a regulation or order, them with a new petition to modify the submission of draft guidance documents or to take or refrain from taking any decision. According to our records, we or topics for development to our other form of administrative action. have received a total of 12 such requests Dockets Management Staff. To Similarly, § 10.31 (21 CFR 10.31) and we assume it takes respondents an participate in the development and governs citizen petitions and petitions average of 10 hours to prepare. issuance of guidance documents, the for stay of action related to abbreviated Section 10.65 (21 CFR 10.65) covers public may elect to submit comment new drug applications, certain new drug Agency meetings and correspondence. through alternative mechanisms as applications, or certain biologics license Interested persons may hold meetings explained in our Good Guidance applications issued under section 701(a) and exchange correspondence with FDA Practice regulations under § 10.115. of the Federal, Food, Drug, and representatives on matters within its Although most submissions and Cosmetic Act (FD&C Act) (21 U.S.C. jurisdiction by following the attendant burden associated with 371(a)). The regulations provide instructions and providing the recommendations found in Agency content, format, and procedural information described in § 10.65. guidance is accounted for in individual requirements applicable to the Because FDA maintains other information collections associated with submission of these petitions. To assist information collections in its inventory a particular product area or regulatory respondents to the information that cover specific types of meeting topic, here we are accounting for burden collection, FDA’s Center for Drug requests, we did not previously include associated with general public Evaluation and Research developed an burden that may result from this submissions as described in interpretive guidance entitled ‘‘Citizen section. However, to account for burden § 10.115(f)(3). Based on Agency data, we Petitions and Petitions for Stay of associated with meeting requests and receive an average of 100 such Action Subject to Section 505(q) of the correspondence generally, we provide submissions each year; we assume each Federal Food, Drug, and Cosmetic Act.’’ an estimate of 750 submissions annually submission requires an average of 4 The guidance describes FDA’s current under this information collection; we hours to prepare and, therefore, thinking on interpreting section 505(q) assume one respondent per submission; calculate a total burden of 400 hours of the FD&C Act (21 U.S.C. 355(q)), and and we assume each submission annually. is currently approved under OMB requires respondents between 1 to 10 Regulations in § 12.20 (21 CFR 12.20) control number 0910–0679. Based on hours to prepare, including gathering include information collection Agency data, an average of 220 citizen and reviewing the necessary material. associated with requesting a formal petitions are received annually under We therefore use an average of 5 hours evidentiary public hearing and are §§ 10.30 and 10.31, and we estimate an for this estimate and base this estimate issued under section 701(e)(2) of the

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FD&C Act. The regulations provide Dated: May 8, 2020. manufacturers and laboratories intended instructions for filing objections and Lowell J. Schiller, to facilitate EUA submissions for requests for a hearing on a regulation or Principal Associate Commissioner for Policy. molecular, antigen, and serology tests. order under § 12.20(d). Objections and [FR Doc. 2020–10384 Filed 5–14–20; 8:45 am] The guidance document is immediately requests must be submitted within the BILLING CODE 4164–01–P in effect, but it remains subject to time specified in § 12.20(e). Each comment in accordance with the objection, for which a hearing has been Agency’s good guidance practices. requested, must be separately numbered DEPARTMENT OF HEALTH AND DATES: The announcement of the and specify the provision of the HUMAN SERVICES guidance is published in the Federal regulation or the proposed order. In Register on May 15, 2020. Food and Drug Administration addition, each objection must include a ADDRESSES: You may submit either detailed description and analysis of the [Docket No. FDA–2020–D–0987] electronic or written comments on factual information and any other Agency guidances at any time as document, with some exceptions, Policy for Coronavirus Disease-2019 follows: supporting the objection. Failure to Tests During the Public Health include this information constitutes a Emergency; Immediately in Effect Electronic Submissions waiver of the right to a hearing on that Guidance for Clinical Laboratories, Submit electronic comments in the objection. The description and analysis Commercial Manufacturers, and Food following way: may be used only for the purpose of and Drug Administration Staff; • Federal eRulemaking Portal: determining whether a hearing has been Availability https://www.regulations.gov. Follow the justified under 21 CFR 12.24 and does AGENCY: Food and Drug Administration, instructions for submitting comments. not limit the evidence that may be HHS. Comments submitted electronically, presented if a hearing is granted. We ACTION: Notice of availability. including attachments, to https:// estimate five respondents will file a www.regulations.gov will be posted to request under the regulation and assume SUMMARY: The Food and Drug the docket unchanged. Because your each request requires 20 hours to Administration (FDA or Agency) is comment will be made public, you are prepare, for a total of 100 hours announcing the availability of a final solely responsible for ensuring that your annually. guidance entitled ‘‘Policy for comment does not include any Finally, § 12.45 (21 CFR 12.45), issued Coronavirus Disease-2019 Tests During confidential information that you or a under section 701 of the FD&C Act, sets the Public Health Emergency.’’ On third party may not wish to be posted, forth content, format, and procedural February 4, 2020, the Secretary of such as medical information, your or requirements for any interested person Health and Human Services (HHS) anyone else’s Social Security number, or to file a petition to participate in a determined that there is a public health confidential business information, such formal evidentiary hearing, either emergency and that circumstances exist as a manufacturing process. Please note personally or through a representative. justifying the authorization of that if you include your name, contact Section 12.45 requires that any person emergency use of in vitro diagnostics for information, or other information that filing a notice of participation state their detection and/or diagnosis of the novel identifies you in the body of your specific interest in the proceedings, coronavirus (2019-nCoV). Rapid comments, that information will be including the specific issues of fact detection of Coronavirus Disease-2019 posted on https://www.regulations.gov. about which the person desires to be (COVID–19) cases in the United States • If you want to submit a comment heard. This section also requires that the requires wide availability of SARS-CoV– with confidential information that you notice include a statement that the 2 testing. This guidance was revised on do not wish to be made available to the person will present testimony at the March 16, 2020, May 4, 2020, and May public, submit the comment as a hearing and will comply with specific 11, 2020. The guidance describes four written/paper submission and in the requirements in 21 CFR 12.85, or, in the policies intended to help facilitate the manner detailed (see ‘‘Written/Paper case of a hearing before a Public Board development and use of SARS-CoV–2 Submissions’’ and ‘‘Instructions’’). of Inquiry, concerning disclosure of data tests during the public health and information by participants (21 CFR emergency: Two policies for Written/Paper Submissions 13.25). In accordance with § 12.45(e), accelerating the development of certain Submit written/paper submissions as the presiding officer may omit a laboratory tests for COVID–19—one follows: participant’s appearance. Based on our leading to an Emergency Use • Mail/Hand delivery/Courier (for records, we estimate five filings under Authorization (EUA) submission to FDA written/paper submissions): Dockets this regulation and assume it requires 3 and the other not leading to an EUA Management Staff (HFA–305), Food and hours to prepare, for a total of 15 hours submission when the test is developed Drug Administration, 5630 Fishers annually. under the authorities of the State in Lane, Rm. 1061, Rockville, MD 20852. Respondents to the information which the laboratory resides and the • For written/paper comments collection are those interested persons State takes responsibility for COVID–19 submitted to the Dockets Management conducting business with FDA, and testing by laboratories in its State; a Staff, FDA will post your comment, as thus subject to the applicable policy for commercial manufacturers to well as any attachments, except for administrative regulations. more rapidly distribute their SARS- information submitted, marked and The burden estimates for this CoV–2 diagnostics to laboratories for identified, as confidential, if submitted collection of information are based on specimen testing after validation while as detailed in ‘‘Instructions.’’ Agency records and our experience over an EUA submission is being prepared Instructions: All submissions received the past 3 years. By revising the for submission to FDA; and a policy must include the Docket No. FDA– information collection to include regarding the use of serological testing. 2020–D–0987 for ‘‘Policy for additional provisions, we have In addition, FDA has included a Coronavirus Disease-2019 Tests During increased our annual burden estimate reference to the availability, on FDA’s the Public Health Emergency.’’ Received by 869 responses and 1,096 hours. website, of templates for commercial comments will be placed in the docket

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and, except for those submitted as Administration, 10903 New Hampshire manufacturers and laboratories intended ‘‘Confidential Submissions,’’ publicly Ave., Bldg. 66, Rm. 5431, Silver Spring, to facilitate EUA submissions for viewable at https://www.regulations.gov MD 20993–0002. Send one self- molecular, antigen, and serology tests. or at the Dockets Management Staff addressed adhesive label to assist that The templates provide information and between 9 a.m. and 4 p.m., Monday office in processing your request. recommendations, and FDA plans to through Friday. FOR FURTHER INFORMATION CONTACT: update them as appropriate as we learn • Confidential Submissions—To Brittany Schuck, Center for Devices and more about the COVID–19 disease and submit a comment with confidential Radiological Health, Food and Drug gain experience with the EUA process information that you do not wish to be Administration, 10903 New Hampshire for the various types of COVID–19 tests. made publicly available, submit your Ave., Bldg. 66, Rm. 3556, Silver Spring, In the context of a public health comments only as a written/paper MD 20993–0002, 301–796–5199. emergency involving pandemic submission. You should submit two infectious disease, it is critically SUPPLEMENTARY INFORMATION: copies total. One copy will include the important that tests are validated information you claim to be confidential I. Background because false results can have a broad with a heading or cover note that states public health impact beyond that to the FDA is announcing the availability of ‘‘THIS DOCUMENT CONTAINS individual patient. In this guidance, a guidance entitled ‘‘Policy for CONFIDENTIAL INFORMATION.’’ The FDA provides recommendations Coronavirus Disease-2019 Tests During Agency will review this copy, including regarding validation of COVID–19 tests, the claimed confidential information, in the Public Health Emergency.’’ On which remain unchanged from the its consideration of comments. The February 4, 2020, the Secretary of HHS guidance published on May 4, 2020. second copy, which will have the determined that there is a public health FDA encourages test developers to claimed confidential information emergency and that circumstances exist discuss any alternative approaches to redacted/blacked out, will be available justifying the authorization of validation with FDA. for public viewing and posted on emergency use of in vitro diagnostics for In light of this public health https://www.regulations.gov. Submit detection and/or diagnosis of the novel emergency,2 FDA has determined that 1 both copies to the Dockets Management coronavirus (2019-nCoV). Rapid prior public participation for this Staff. If you do not wish your name and detection of COVID–19 cases in the guidance is not feasible or appropriate contact information to be made publicly United States requires wide availability and is issuing this guidance without available, you can provide this of SARS-CoV–2 testing. This guidance prior public comment (see section information on the cover sheet and not was originally published on February 701(h)(1)(C)(i) of the Federal Food, in the body of your comments and you 29, 2020, to describe a policy regarding Drug, and Cosmetic Act (21 U.S.C. must identify this information as laboratories using tests they develop 371(h)(1)(C)(i)) and § 10.115(g)(2)). ‘‘confidential.’’ Any information marked and validate before FDA has issued an Although this guidance is immediately as ‘‘confidential’’ will not be disclosed EUA for their test in order to achieve in effect, FDA will consider all except in accordance with 21 CFR 10.20 more rapid testing capacity in the comments received and revise the and other applicable disclosure law. For United States. The guidance was guidance document as appropriate. more information about FDA’s posting subsequently updated on March 16, This guidance is being issued of comments to public dockets, see 80 2020, to include a policy enabling States consistent with FDA’s good guidance FR 56469, September 18, 2015, or access to take responsibility for oversight of practices regulation (§ 10.115). The the information at: https:// laboratory developed tests within their guidance represents the current thinking www.govinfo.gov/content/pkg/FR-2015- States, a policy for commercial of FDA on ‘‘Policy for Coronavirus 09-18/pdf/2015-23389.pdf. manufacturers to more rapidly Disease-2019 Tests During the Public Docket: For access to the docket to distribute their SARS-CoV–2 diagnostic Health Emergency.’’ It does not establish read background documents or the tests to laboratories for specimen testing any rights for any person and is not electronic and written/paper comments after validation while an EUA is being binding on FDA or the public. You can received, go to https:// prepared for submission to FDA, and a use an alternative approach if it satisfies www.regulations.gov and insert the policy regarding the use of serological the requirements of the applicable docket number, found in brackets in the testing without an EUA. The guidance statutes and regulations. heading of this document, into the was then updated on May 4, 2020, to ‘‘Search’’ box and follow the prompts revise the policy regarding SARS-CoV– III. Electronic Access and/or go to the Dockets Management 2 serology tests as it pertains to Persons interested in obtaining a copy Staff, 5630 Fishers Lane, Rm. 1061, commercial manufacturers. Among of the guidance may do so by Rockville, MD 20852. other things, the updated guidance downloading an electronic copy from You may submit comments on any explained that commercial the internet. A search capability for all guidance at any time (see § 10.115(g)(5) manufacturers should submit an EUA Center for Devices and Radiological (21 CFR 10.115(g)(5))). for their distributed serology tests Health guidance documents is available An electronic copy of the guidance within 10 business days of notification at https://www.fda.gov/medical-devices/ document is available for download to FDA of validation or publication of device-advice-comprehensive- from the internet. See the the guidance published on May 4, 2020, regulatory-assistance/guidance- SUPPLEMENTARY INFORMATION section for whichever is later. The current version documents-medical-devices-and- information on electronic access to the of the guidance was posted on May 11, radiation-emitting-products. This guidance. Submit written requests for a 2020. guidance document is also available at single hard copy of the guidance This guidance does not change the https://www.regulations.gov and at document entitled ‘‘Policy for policies in the May 4, 2020, guidance Coronavirus Disease-2019 Tests During but includes a new section that 2 Secretary of Health and Human Services Alex the Public Health Emergency’’ to the references the availability, on FDA’s M. Azar, Determination that a Public Health Emergency Exists. (January 31, 2020, renewed April Office of Policy, Guidance and Policy website, of templates for commercial 21, 2020), available at https://www.phe.gov/ Development, Center for Devices and emergency/news/healthactions/phe/Pages/ Radiological Health, Food and Drug 1 https://www.fda.gov/media/135010/download;. default.aspx.

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https://www.fda.gov/emergency- document number 20010–R3 and as listed in the below table. This preparedness-and-response/mcm- complete title to identify the guidance guidance also contains a new collection issues/covid-19-related-guidance- you are requesting. of information not approved under a documents-industry-fda-staff-and-other- IV. Paperwork Reduction Act of 1995 current collection. This new collection stakeholders. Persons unable to of information has been granted a public download an electronic copy of ‘‘Policy This guidance refers to previously health emergency (PHE) waiver from the for Coronavirus Disease-2019 Tests approved collections of information. PRA by the Department of HHS on During the Public Health Emergency; These collections of information are March 19, 2020, under section 319(f) of Immediately in Effect Guidance for subject to review by the Office of the Public Health Services Act. Clinical Laboratories, Commercial Management and Budget (OMB) under Information concerning the PHE PRA Manufacturers, and Food and Drug the Paperwork Reduction Act of 1995 waiver can be found on the HHS Administration Staff ’’ may send an (PRA) (44 U.S.C. 3501–3521). The website at https://aspe.hhs.gov/public- email request to CDRH-Guidance@ collections of information in the fda.hhs.gov to receive an electronic following FDA regulations and health-emergency-declaration-pra- copy of the document. Please use the guidances have been approved by OMB waivers.

CFR cite COVID–19 referenced in Another guidance OMB Control New collection covered by PHE guidance title COVID–19 referenced in No(s). PRA waiver guidance COVID–19 guidance

Policy for Coronavirus Dis- ...... Emergency Use Authoriza- 0910–0595 ease-2019 Tests During the tion of Medical Products Public Health Emergency. and Related Authorities; Guidance for Industry and Other Stakeholders. Administrative Procedures for 0910–0607 Clinical Laboratory Im- provement Amendments of 1988 Categorization. De Novo Classification Proc- 0910–0844 ess (Evaluation of Auto- matic Class III Designa- tion). 803 0910–0437 807, subparts A 0910–0625 through D. 807, subpart E 0910–0120 820 ...... 0910–0073 Laboratory voluntary reporting to FDA of testing capacity information. Manufacturer voluntary reporting to FDA of testing capacity information and the num- ber of laboratories in the U.S. with the re- quired platforms installed. Laboratory voluntary reporting to FDA of validation data, when validating through a bridging study and not pursuing an EUA for the modification. State or territory voluntary notification to FDA of decision to authorize laboratories within that State or territory to develop and perform a test for COVID–19 under authority of its own State law. Laboratory voluntary notification to FDA that they have started clinical testing and vol- untary reporting of testing capacity infor- mation, when the laboratory is authorized to develop and perform a test for COVID– 19 under authority of a State or territory.

Dated: May 12, 2020. Lowell J. Schiller, Principal Associate Commissioner for Policy. [FR Doc. 2020–10492 Filed 5–14–20; 8:45 am] BILLING CODE 4164–01–P

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DEPARTMENT OF HEALTH AND addresses disparities in maternal health meeting of the Board of Scientific HUMAN SERVICES to improve maternal health outcomes, Counselors, NICHD. including preventing and reducing The meeting will be closed to the Health Resources and Services maternal mortality and severe maternal public as indicated below in accordance Administration morbidity. The ACIM provides advice with the provisions set forth in sections on how best to coordinate myriad 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Meeting of the Advisory Committee on federal, state, local, and private as amended for the review, discussion, Infant Mortality programs and efforts that are designed and evaluation of individual intramural AGENCY: Health Resources and Services to deal with the health and social programs and projects conducted by the Administration (HRSA), Department of problems impacting infant mortality and EUNICE KENNEDY SHRIVER Health and Human Services (HHS). maternal health, including NATIONAL INSTITUTE OF CHILD implementation of the Healthy Start HEALTH & HUMAN DEVELOPMENT, ACTION: Notice. program and maternal and infant health including consideration of personnel SUMMARY: In accordance with the objectives from the National Health qualifications and performance, and the Federal Advisory Committee Act, this Promotion and Disease Prevention competence of individual investigators, notice announces that the Secretary’s Objectives. the disclosure of which would Advisory Committee on Infant Mortality The agenda for the June 17–18, 2020, constitute a clearly unwarranted (ACIM) has scheduled a public meeting. meeting is being finalized and may invasion of personal privacy. Information about ACIM and the agenda include the following: Updates from Name of Committee: Board of Scientific for this meeting can be found on the HRSA and MCHB, discussion of Counselors, NICHD. ACIM website at https://www.hrsa.gov/ COVID–19 and infant and maternal Date: June 5, 2020. advisory-committees/infant-mortality/ health, and updates on priority topic Time: 10:00 a.m. to 2:45 p.m. index.html. areas for ACIM to address (equity, data, Agenda: A report by the Acting Scientific access, and quality of care). Agenda Director, NICHD, on the status of the NICHD DATES: June 17, 2020, 11:00 a.m.–6:00 items are subject to change as priorities Division of Intramural Research; current p.m. Eastern Time (ET) and June 18, organizational structure; to review and 2020, 11:00 a.m.–3:00 p.m. ET. dictate. The final meeting agenda will evaluate personnel qualifications and be available 7 calendar days prior to the performance, and competence of individual ADDRESSES: This meeting will be held meeting on the ACIM website: https:// via webinar. investigators. • www.hrsa.gov/advisory-committees/ Place: National Institutes of Health, 31 The webinar link will be available infant-mortality/index.html. Center Drive, Bethesda, MD 20892 at ACIM’s website 7 calendar days Members of the public will have the (Teleconference). before the meeting: https:// opportunity to provide comments. Contact Person: Mary C. Dasso, Ph.D., www.hrsa.gov/advisory-committees/ Public participants may submit written Acting Scientific Director, Eunice Kennedy infant-mortality/index.html. Shriver National Institute of Child Health and statements in advance of the scheduled • The conference call-in number will Human Development, NIH, 9000 Rockville meeting. Oral comments will be be available at ACIM’s website 7 Pike, Building 31A, Room 2A46, Bethesda, honored in the order they are requested calendar days before the meeting: MD 20892, (301) 594–5984, dassom@ and may be limited as time allows. https://www.hrsa.gov/advisory- mail.nih.gov. Requests to submit a written statement committees/infant-mortality/index.html. Information is also available on the or make oral comments to the ACIM Institute’s/Center’s home page: https:// FOR FURTHER INFORMATION CONTACT: should be sent to Juliann DeStefano, www.nichd.nih.gov/about/meetings/Pages/ Juliann DeStefano, RN, MPH, at using the contact information above at index.aspx, where an agenda and any Maternal and Child Health Bureau least 3 business days prior to the additional information for the meeting will (MCHB), HRSA, 5600 Fishers Lane, meeting. be posted when available. Room 18N–84, Rockville, Maryland Individuals who plan to attend and (Catalogue of Federal Domestic Assistance 20857; 301–443–0883; or SACIM@ need special assistance or another Program Nos. 93.865, Research for Mothers hrsa.gov. and Children, National Institutes of Health, reasonable accommodation should HHS) SUPPLEMENTARY INFORMATION: The ACIM notify Juliann DeStefano at the contact is authorized by section 222 of the information listed above at least 10 Dated: May 11, 2020. Public Health Service Act (42 U.S.C. business days prior to the meeting. Ronald J. Livingston, Jr., 217a), as amended. The Committee is Program Analyst, Office of Federal Advisory governed by provisions of Public Law Maria G. Button, Committee Policy. 92–463, as amended, (5 U.S.C. App. 2), Director, Executive Secretariat. [FR Doc. 2020–10429 Filed 5–14–20; 8:45 am] which sets forth standards for the [FR Doc. 2020–10447 Filed 5–14–20; 8:45 am] BILLING CODE 4140–01–P formation and use of Advisory BILLING CODE 4165–15–P Committees. The ACIM advises the Secretary of DEPARTMENT OF HEALTH AND HHS on department activities and DEPARTMENT OF HEALTH AND HUMAN SERVICES programs directed at reducing infant HUMAN SERVICES mortality and improving the health National Institutes of Health National Institutes of Health status of pregnant women and infants. Center for Scientific Review; Notice of The ACIM represents a public-private Eunice Kennedy Shriver National Closed Meetings partnership at the highest level to Institute of Child Health & Human provide guidance and focus attention on Development; Notice of Closed Pursuant to section 10(d) of the the policies and resources required to Meeting Federal Advisory Committee Act, as address the reduction of infant mortality amended, notice is hereby given of the and the improvement of the health Pursuant to section 10(d) of the following meetings. status of pregnant women and infants. Federal Advisory Committee Act, as The meetings will be closed to the With a focus on life course, the ACIM amended, notice is hereby given of a public in accordance with the

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provisions set forth in sections Contact Person: Robert C. Elliott, Ph.D., Name of Committee: Population Sciences 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Scientific Review Officer, Center for and Epidemiology Integrated Review Group as amended. The grant applications and Scientific Review, National Institutes of Social Sciences and Population Studies B Health, 6701 Rockledge Drive, Room 5190, Study Section. the discussions could disclose MSC 7846, Bethesda, MD 20892, (301) 435– Date: June 18–19, 2020. confidential trade secrets or commercial 3009, [email protected]. Time: 9:00 a.m. to 5:00 p.m. property such as patentable material, Name of Committee: Molecular, Cellular Agenda: To review and evaluate grant and personal information concerning and Developmental Neuroscience Integrated applications. individuals associated with the grant Review Group Biophysics of Neural Systems Place: National Institutes of Health, applications, the disclosure of which Study Section. Rockledge II, 6701 Rockledge Dr., Bethesda, would constitute a clearly unwarranted Date: June 18–19, 2020. MD 20892, (Virtual Meeting). invasion of personal privacy. Time: 8:00 a.m. to 4:30 p.m. Contact Person: Kate Fothergill, Ph.D., Agenda: To review and evaluate grant Scientific Review Officer, Center for Name of Committee: Genes, Genomes, and applications. Scientific Review, National Institutes of Genetics Integrated Review Group, Molecular Place: National Institutes of Health, Health, 6701 Rockledge Drive, Room 3142, Genetics B Study Section. Rockledge II, 6701 Rockledge Dr., Bethesda, Bethesda, MD 20892, (301) 435–2309, Date: June 8–9, 2020. MD 20892, (Virtual Meeting). [email protected]. Time: 8:00 a.m. to 5:00 p.m. Contact Person: Geoffrey G. Schofield, Name of Committee: Endocrinology, Agenda: To review and evaluate grant Ph.D., Scientific Review Officer, Center for Metabolism, Nutrition and Reproductive applications. Scientific Review, National Institutes of Sciences Integrated Review Group, Place: National Institutes of Health, Health, 6701 Rockledge Drive, Room 4040–A, Integrative and Clinical Endocrinology and Rockledge II, 6701 Rockledge Dr., Bethesda, MSC 7850, Bethesda, MD 20892, (301) 435– Reproduction Study Section. MD 20892, (Virtual Meeting). 1235, [email protected]. Date: June 18, 2020. Contact Person: Emily Foley, Ph.D., Name of Committee: Center for Scientific Time: 9:00 a.m. to 6:00 p.m. Scientific Review Officer, Center for Review Special Emphasis Panel PAR NS20– Agenda: To review and evaluate grant Scientific Review, National Institutes of 028: HEAL Initiative: Pain Management applications. Health, 6701 Rockledge Drive, Room 2206, Effectiveness Research Network (UG3 Place: National Institutes of Health, Bethesda, MD 20892, (301) 435–0627, Clinical Trials). Rockledge II, 6701 Rockledge Dr., Bethesda, [email protected]. Date: June 18, 2020. MD 20892, (Virtual Meeting). Contact Person: Dianne Hardy, Ph.D., Name of Committee: Vascular and Time: 8:00 a.m. to 5:00 p.m. Scientific Review Officer, Center for Hematology Integrated Review Group, Agenda: To review and evaluate grant Scientific Review, National Institutes of Molecular and Cellular Hematology Study applications. Health, 6701 Rockledge Drive, Room 6175, Section. Place: National Institutes of Health, MSC 7892, Bethesda, MD 20892, (301) 435– Date: June 11–12, 2020. Rockledge II, 6701 Rockledge Dr., Bethesda, MD 20892, (Virtual Meeting). 1154, [email protected]. Time: 8:00 a.m. to 6:00 p.m. Contact Person: Tina Tze-Tsang Tang, Agenda: To review and evaluate grant Name of Committee: Cardiovascular and Ph.D., Scientific Review Officer, Center for applications. Respiratory Sciences Integrated Review Scientific Review, National Institutes of Group, Lung Injury, Repair, and Remodeling Place: National Institutes of Health, Health, 6701 Rockledge Drive, Suite 3030, Rockledge II, 6701 Rockledge Dr., Bethesda, Study Section. Bethesda, MD 20817, (301) 435–4436, tangt@ Date: June 18–19, 2020. MD 20892, (Virtual Meeting). mail.nih.gov. Time: 9:00 a.m. to 5:00 p.m. Contact Person: Katherine M. Malinda, Name of Committee: Molecular, Cellular Agenda: To review and evaluate grant Ph.D., Scientific Review Officer, Center for and Developmental Neuroscience Integrated applications. Scientific Review, National Institutes of Review Group Neural Oxidative Metabolism Place: National Institutes of Health, Health, 6701 Rockledge Drive, Room 4140, and Death Study Section. Rockledge II, 6701 Rockledge Dr., Bethesda, MSC 7814, Bethesda, MD 20892, (301) 435– _ Date: June 18–19, 2020. MD 20892, (Virtual Meeting). 0912, Katherine [email protected]. Time: 8:00 a.m. to 4:30 p.m. Contact Person: Ghenima Dirami, Ph.D., Name of Committee: Center for Scientific Agenda: To review and evaluate grant Scientific Review Officer, Center for Review Special Emphasis Panel, applications. Scientific Review, National Institutes of Neuroimmunology and Brain Tumors. BILLING CODE 4140–01–P Health, 6701 Rockledge Drive, Room 4122, Date: June 11, 2020. Place: National Institutes of Health, MSC 7814, Bethesda, MD 20892, (240) 498– Time: 11:00 a.m. to 2:00 p.m. Rockledge II, 6701 Rockledge Dr., Bethesda, 7546, [email protected]. Agenda: To review and evaluate grant MD 20892, (Virtual Meeting). Name of Committee: Biological Chemistry applications. Contact Person: Carol Hamelink, Ph.D., and Macromolecular Biophysics Integrated Place: National Institutes of Health, Scientific Review Officer, Center for Review Group, Macromolecular Structure Rockledge II, 6701 Rockledge Dr., Bethesda, Scientific Review, National Institutes of and Function C Study Section. MD 20892, (Virtual Meeting). Health, 6701 Rockledge Drive, Room 4192, Date: June 18–19, 2020. Contact Person: Samuel C. Edwards, Ph.D., MSC 7850, Bethesda, MD 20892, (301) 213– Time: 9:00 a.m. to 5:00 p.m. Chief, Brain Disorders and Clinical 9887, [email protected]. Agenda: To review and evaluate grant Neuroscience Center for Scientific Review, Name of Committee: Molecular, Cellular applications. National Institutes of Health, 6701 Rockledge and Developmental Neuroscience Integrated Place: National Institutes of Health, Drive, Room 5210, MSC 7846, Bethesda, MD Review Group Synapses, Cytoskeleton and Rockledge II, 6701 Rockledge Dr., Bethesda, 20892, (301) 435–1246, edwardss@ Trafficking Study Section. MD 20892, (Virtual Meeting). csr.nih.gov. Date: June 18–19, 2020. Contact Person: William A. Greenberg, Name of Committee: Emerging Time: 8:00 a.m. to 6:00 p.m. Ph.D., Scientific Review Officer, Center for Technologies and Training Neurosciences Agenda: To review and evaluate grant Scientific Review, National Institutes of Integrated Review Group Bioengineering of applications. Health, 6701 Rockledge Drive, Room 4168, Neuroscience, Vision and Low Vision Place: National Institutes of Health, MSC 7806, Bethesda, MD 20892, (301) 435– Technologies Study Section. Rockledge II, 6701 Rockledge Dr., Bethesda, 1726. [email protected]. Date: June 18–19, 2020. MD 20892, (Virtual Meeting). Name of Committee: Immunology Time: 8:00 a.m. to 6:00 p.m. Contact Person: Christine A. Piggee, Ph.D., Integrated Review Group, Immunity and Host Agenda: To review and evaluate grant Scientific Review Officer, Center for Defense Study Section. applications. Scientific Review, National Institutes of Date: June 18–19, 2020. Place: National Institutes of Health, Health, 6701 Rockledge Drive, Room 4186, Time: 9:30 a.m. to 5:00 p.m. Rockledge II, 6701 Rockledge Dr., Bethesda, MSC 7850, Bethesda, MD 20892, (301) 435– Agenda: To review and evaluate grant MD 20892, (Virtual Meeting). 0657, [email protected]. applications.

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Place: National Institutes of Health, the discussions could disclose Name of Committee: National Institute on Rockledge II, 6701 Rockledge Dr., Bethesda, confidential trade secrets or commercial Aging Special Emphasis Panel; NPS in MD 20892, (Virtual Meeting). property such as patentable material, Alzheimer’s. Contact Person: Scott Jakes, Ph.D., and personal information concerning Date: July 15, 2020. Scientific Review Officer, Center for Time: 12:00 p.m. to 4:30 p.m. Scientific Review, National Institutes of individuals associated with the grant Agenda: To review and evaluate grant Health, 6701 Rockledge Drive, Room 4198, applications, the disclosure of which applications. MSC 7812, Bethesda, MD 20892, (301) 435– would constitute a clearly unwarranted Place: National Institute on Aging, 1506, [email protected]. invasion of personal privacy. Gateway Building, 7201 Wisconsin Avenue, Name of Committee: Endocrinology, Name of Committee: National Institute of Bethesda, MD 20892, (Video Meeting). Metabolism, Nutrition and Reproductive General Medical Sciences Special Emphasis Contact Person: Birgit Neuhuber, Ph.D., Sciences Integrated Review Group, Clinical Panel; Review of K99/R00 NIH Pathway to Scientific Review Officer, Scientific Review and Integrative Diabetes and Obesity Study Independence Award Applications. Branch, National Institute on Aging, National Section. Date: July 14, 2020. Institutes of Health, 7201 Wisconsin Avenue, Date: June 18–19, 2020. Time: 8:00 a.m. to 5:00 p.m. Gateway Building, Suite 2W200, Bethesda, Time: 10:00 a.m. to 5:00 p.m. Agenda: To review and evaluate grant MD 20892, (301) 480–1266, neuhuber@ Agenda: To review and evaluate grant applications. ninds.nih.gov. applications. Place: National Institutes of Health, (Catalogue of Federal Domestic Assistance Place: National Institutes of Health, Natcher Building, 45 Center Drive, Room Program Nos. 93.866, Aging Research, Rockledge II, 6701 Rockledge Dr., Bethesda, 3AN12, Bethesda, MD 20892 (Video National Institutes of Health, HHS) MD 20892, (Virtual Meeting). Meeting). Dated: May 11, 2020. Contact Person: Hui Chen, MD, Scientific Contact Person: Rebecca H. Johnson, Ph.D., Miguelina Perez, Review Officer, Center for Scientific Review, Scientific Review Officer, Office of Scientific National Institutes of Health, 6701 Rockledge Review, National Institute of General Medical Program Analyst, Office of Federal Advisory Drive, Bethesda, MD 20892, (301) 435–1044, Sciences, National Institutes of Health, Committee Policy. [email protected]. Natcher Building, Room 3AN18C, 45 Center [FR Doc. 2020–10387 Filed 5–14–20; 8:45 am] Name of Committee: Cell Biology Drive, Bethesda, MD 20892, (301) 594–2771, BILLING CODE 4140–01–P Integrated Review Group, Biology of the [email protected]. Visual System Study Section. (Catalogue of Federal Domestic Assistance Date: June 18–19, 2020. Program Nos. 93.375, Minority Biomedical DEPARTMENT OF HEALTH AND Time: 10:00 a.m. to 3:00 p.m. Research Support; 93.821, Cell Biology and HUMAN SERVICES Agenda: To review and evaluate grant Biophysics Research; 93.859, Pharmacology, applications. Physiology, and Biological Chemistry National Institutes of Health Place: National Institutes of Health, Research; 93.862, Genetics and Rockledge II, 6701 Rockledge Dr., Bethesda, Developmental Biology Research; 93.88, National Institute on Minority Health MD 20892, (Virtual Meeting). Minority Access to Research Careers; 93.96, and Health Disparities; Notice of Contact Person: Thomas Beres, Ph.D., Special Minority Initiatives; 93.859, Closed Meetings Scientific Review Officer, Center for Biomedical Research and Research Training, Scientific Review, National Institutes of National Institutes of Health, HHS) Pursuant to section 10(d) of the Health, 6701 Rockledge Drive, Room 5148, Dated: May 11, 2020. Federal Advisory Committee Act, as MSC 7840, Bethesda, MD 20892, (301) 435– amended, notice is hereby given of the 1175, [email protected]. Miguelina Perez, following meetings. (Catalogue of Federal Domestic Assistance Program Analyst, Office of Federal Advisory The meetings will be closed to the Program Nos. 93.306, Comparative Medicine; Committee Policy. public in accordance with the 93.333, Clinical Research, 93.306, 93.333, [FR Doc. 2020–10389 Filed 5–14–20; 8:45 am] 93.337, 93.393–93.396, 93.837–93.844, provisions set forth in sections BILLING CODE 4140–01–P 93.846–93.878, 93.892, 93.893, National 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Institutes of Health, HHS) as amended. The grant applications and the discussions could disclose Dated: May 11, 2020. DEPARTMENT OF HEALTH AND confidential trade secrets or commercial Miguelina Perez, HUMAN SERVICES property such as patentable material, Program Analyst, Office of Federal Advisory National Institutes of Health and personal information concerning Committee Policy. individuals associated with the grant [FR Doc. 2020–10386 Filed 5–14–20; 8:45 am] National Institute on Aging; Notice of applications, the disclosure of which BILLING CODE 4140–01–P Closed Meeting would constitute a clearly unwarranted invasion of personal privacy. Pursuant to section 10(d) of the DEPARTMENT OF HEALTH AND Federal Advisory Committee Act, as Name of Committee: National Institute on HUMAN SERVICES Minority Health and Health Disparities amended, notice is hereby given of the Special Emphasis Panel NIH Support for following meeting. National Institutes of Health Conferences and Scientific Meetings (R13). The meeting will be closed to the Date: June 9, 2020. public in accordance with the National Institute of General Medical Time: 1:00 p.m. to 6:00 p.m. provisions set forth in sections Sciences; Notice of Closed Meeting Agenda: To review and evaluate grant 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., applications. Pursuant to section 10(d) of the as amended. The grant applications and Place: National Institutes of Health, Federal Advisory Committee Act, as the discussions could disclose Gateway Plaza, 7201 Wisconsin Avenue, amended, notice is hereby given of the confidential trade secrets or commercial Bethesda, MD 20817 (Telephone Conference property such as patentable material, Call). following meeting. Contact Person: Deborah Ismond, Ph.D. The meeting will be closed to the and personal information concerning Scientific Review Officer, Division of public in accordance with the individuals associated with the grant Scientific Programs, NIMHD, National provisions set forth in sections applications, the disclosure of which Institutes of Health, Gateway Building, 7201 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., would constitute a clearly unwarranted Wisconsin Avenue, Bethesda, MD 20892, as amended. The grant applications and invasion of personal privacy. (301) 402–1366, [email protected].

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Name of Committee: National Institute on (Catalogue of Federal Domestic Assistance Designated Federal Officer of the Minority Health and Health Disparities Program Nos. 93.847, Diabetes, Merchant Marine Personnel Advisory Special Emphasis Panel Methods and Endocrinology and Metabolic Research; Committee; Telephone 202–372–2357; Measurement in Research with Sexual and 93.848, Digestive Diseases and Nutrition or Email at [email protected]. Gender Minority (SGM) Population (R21— Research; 93.849, Kidney Diseases, Urology Clinical Trial Not Allowed). and Hematology Research, National Institutes SUPPLEMENTARY INFORMATION: The Date: June 24–25, 2020. of Health, HHS) National Merchant Marine Personnel Time: 10:00 a.m. to 6:00 p.m. Dated: May 11, 2020. Advisory Committee is a Federal Agenda: To review and evaluate grant advisory committee. It will operate Miguelina Perez, applications. under the provisions of the Federal Place: National Institutes of Health, Program Analyst, Office of Federal Advisory Advisory Committee Act, 5 U.S.C. Gateway Plaza, 7201 Wisconsin Avenue, Committee Policy. Appendix, and the administrative Bethesda, MD 20817 (Virtual Meeting). [FR Doc. 2020–10388 Filed 5–14–20; 8:45 am] Contact Person: Maryline Laude-Sharp, provisions in Section 601 of the Frank Ph.D., Scientific Review Officer, Division of BILLING CODE 4140–01–P LoBiondo Coast Guard Authorization Scientific Programs, NIMHD, National Act of 2018 (specifically, 46 U.S.C. Institutes of Health, Gateway Building, 7201 15109). Wisconsin Avenue, Ste. 525, MSC. 9206, DEPARTMENT OF HOMELAND The Committee was established on Bethesda, MD 20892, (301) 451–9536, SECURITY [email protected]. December 4, 2019, by the Frank LoBiondo Coast Guard Authorization Dated: May 11, 2020. Coast Guard Act of 2018, which added section Miguelina Perez, [Docket No. USCG–2020–0041] 15103, National Merchant Marine Program Analyst, Office of Federal Advisory Personnel Advisory Committee, to Title Committee Policy. National Merchant Marine Personnel 46 of the U.S. Code. The Committee will [FR Doc. 2020–10390 Filed 5–14–20; 8:45 am] Advisory Committee; Initial Solicitation advise the Secretary of Homeland BILLING CODE 4140–01–P for Members Security on matters relating to personnel in the United States merchant AGENCY: U.S. Coast Guard, Department marine, including the training, of Homeland Security. DEPARTMENT OF HEALTH AND qualifications, certification, HUMAN SERVICES ACTION: Request for applications. documentation, and fitness of mariners. The Committee is required to meet at National Institutes of Health SUMMARY: The Coast Guard is requesting applications from persons in interested least once a year in accordance with 46 National Institute of Diabetes and in membership on the National U.S.C. 15109(a). We expect the Digestive and Kidney Diseases; Notice Merchant Marine Personnel Advisory Committee to meet at least twice a year, of Closed Meeting Committee (‘‘Committee’’). This recently but it may meet more frequently. The meetings are generally held in cities that Pursuant to section 10(d) of the established Committee will advise the Secretary of the Department of have high concentrations of maritime Federal Advisory Committee Act, as personnel and related marine industry amended, notice is hereby given of the Homeland Security on matters relating to personnel in the United States businesses. following meeting. All members serve at their own The meeting will be closed to the merchant marine, including the training, qualifications, certification, expense and receive no salary or other public in accordance with the compensation from the Federal provisions set forth in sections documentation, and fitness of mariners. Please read the notice for description of Government. Members may be 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., reimbursed, however, for travel and per as amended. The grant applications and Committee positions we are seeking to fill. diem in accordance with Federal Travel the discussions could disclose Regulations. confidential trade secrets or commercial DATES: Your completed application Under provisions in 46 U.S.C. property such as patentable material, should reach the Coast Guard on or 15109(f)(6), if you are appointed as a and personal information concerning before July 14, 2020. member of the Committee, your individuals associated with the grant ADDRESSES: Applicants should send a membership term will expire on applications, the disclosure of which cover letter expressing interest in an December 31 of the third full year after would constitute a clearly unwarranted appointment to the National Merchant the effective date of your appointment. invasion of personal privacy. Marine Personnel Advisory Committee The Secretary may require an individual Name of Committee: National Institute of and a resume detailing their experience. to have passed an appropriate security Diabetes and Digestive and Kidney Diseases We will not accept a biography. background examination before Special Emphasis Panel; DDK–C Member Applications should be submitted: via appointment to the Committee, 46 Conflicts. one of the following methods: U.S.C. 15109(f)(4). Date: July 10, 2020. • By Email: [email protected]. In this initial solicitation for Time: 10:00 a.m. to 7:00 p.m. Subject Line: N–MERPAC (preferred). Committee members, we will consider Agenda: To review and evaluate grant • applications. By Fax: 202–372–4908; ATTN: applications for all positions, which Place: National Institutes of Health, Two Megan Johns Henry, Alternate include: Democracy Plaza, 6707 Democracy Designated Federal Officer; or • United States citizens holding Boulevard, Bethesda, MD 20892, (Telephone • By Mail: Megan Johns Henry, active licenses or certificates issued Conference Call). Alternate Designated Federal Officer, under 46 U.S.C. chapter 71 or merchant Contact Person: Jian Yang, Ph.D., Scientific Commandant (CG–MMC–2), U.S. Coast mariner documents issued under 46 Review Officer, Review Branch, Division of Guard Stop 7509, 2703 Martin Luther U.S.C. chapter 73, including: Extramural Activities, NIDDK, National King Jr. Ave. SE, Washington, DC Æ Institutes of Health, Room 7111, 6707 Three credentialed deck officers Democracy Boulevard, Bethesda, MD 20892– 20593–7509. who represent merchant marine deck 5452, (301) 594–7799, yangj@ FOR FURTHER INFORMATION CONTACT: officers, of which: (1) Two shall be extra.niddk.nih.gov. Megan Johns Henry, Alternate endorsed for oceans route of unlimited

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tonnage; (2) one with an endorsement 450) for new entrants and if appointed Advisory Committee via one of the for an inland or river route of limited or as a member must submit Form 450 transmittal methods in the ADDRESSES unlimited tonnage; (3) two deck officers annually. The Coast Guard may not section by the deadline in the DATES endorsed as Master of Towing Vessels; release the reports or the information in section of this notice. If you send your (4) one with significant tanker them to the public except under an application to us via email, we will send experience and; (5) to the extent order issued by a Federal Court or as you an email confirming receipt of your practicable, one shall represent labor otherwise provided under the Privacy application. and one shall represent management. Act (5 U.S.C 552a). Only the Designated Æ Dated: May 7, 2020. Three credentialed engineering U.S. Coast Guard Ethics Official or his Jeffrey G. Lantz, officers, of which: (1) Two shall be or her designee may release a Director of Commercial Regulations and endorsed as Chief Engineer of unlimited Confidential Financial Disclosure Standards. horsepower; (2) one endorsed as either Report. Applicants can obtain this form a Chief Engineer of limited horsepower by going to the website of the Office of [FR Doc. 2020–10382 Filed 5–14–20; 8:45 am] or Designated Duty Engineer; and; (3) to Government Ethics (www.oge.gov), or by BILLING CODE 9110–04–P the extent practicable, one shall contacting or emailing the individual represent labor and one shall represent listed above in FOR FURTHER DEPARTMENT OF HOMELAND management. INFORMATION CONTACT section. SECURITY Æ Two credentialed with ratings: (1) Applications for members who will One of which shall be endorsed as able serve to represent the general public U.S. Customs and Border Protection bodied seamen; and (2) one shall be must be accompanied by a completed endorsed as a qualified member of the OGE Form 450. Notice of Revocation of Customs engine department; and Registered lobbyists are not eligible to Brokers’ Licenses Æ One credentialed deck officer serve on Federal Advisory Committees endorsed as first class pilot who in an individual capacity. See ‘‘Revised AGENCY: U.S. Customs and Border represents merchant marine pilots; Guidance on Appointment of Lobbyists Protection, Department of Homeland • Six marine educators, including: to Federal Advisory Committees, Boards Security. Æ Three marine educators who and Commissions’’ (79 FR 47482, ACTION: Revocation of customs brokers’ represent the maritime academies, of August 13, 2014). Registered lobbyists licenses. which: (1) Two represent the State are ‘‘lobbyists,’’ as defined in 2 U.S.C. maritime academies (and are jointly 1602, who are required by 2 U.S.C. 1603 SUMMARY: This document provides recommended by such academies); and to register with the Secretary of the notice of the revocation by operation of (2) one represents either the State or Senate and the Clerk of the House of law of customs brokers’ licenses. United States Merchant Marine Representatives. FOR FURTHER INFORMATION CONTACT: Academy; The Department of Homeland Melba Hubbard, Branch Chief, Broker Æ Three marine educators who Security does not discriminate in Management, Office of Trade, (202) represent other maritime training selection of Committee members based 325–6986, [email protected]. institutions, and of which one may also on race, color, religion, sex, national SUPPLEMENTARY INFORMATION: This represent the small vessel industry: origin, political affiliation, sexual document provides notice that, • Two individuals who represent orientation, gender identity, marital pursuant to section 641 of the Tariff Act shipping companies employed in ship status, disabilities and genetic of 1930, as amended (19 U.S.C. 1641), operation management; and, information, age, membership in an and section 111.30(d) of title 19 of the • Two individuals who represent the employee organization, or any other Code of Federal Regulations (19 CFR general public. non-merit factor. The Department of 111.30(d)), the following customs If you are selected as a member drawn Homeland Security strives to achieve a brokers’ licenses were revoked by from the general public, you will be widely diverse candidate pool for all of operation of law, without prejudice, for appointed and serve as a Special its recruitment selections. failure to file a triennial status report. A Government Employee as defined in If you are interested in applying to list of revoked customs brokers’ licenses section 18 U.S.C. 202(a). As a candidate become a member of the Committee, appears below with both the port, which for appointment as a Special send your cover letter and resume to issued the licenses, and the brokers’ Government Employee, applicants are Megan Johns Henry, Alternate names within the port of issuance required to complete a Confidential Designated Federal Officer of the whose licenses were revoked, set forth Financial Disclosure Report (OGE Form National Merchant Marine Personnel alphabetically.

Last name First name License Port of issuance

Holstrom ...... Dennis W ...... 03912 Seattle. Johnson ...... Roberta L ...... 22323 Seattle. Kahng ...... Patrick ...... 28506 Seattle. Requa ...... Jared ...... 28092 Seattle. Warren ...... Joni S ...... 14325 Seattle.

This document further provides operation of law for failure to employ at port, which issued the licenses, and the notice that, pursuant to 19 U.S.C. 1641 least one qualifying individual who brokers’ names within the port of and 19 CFR 111.45(a), the following holds a valid customs broker’s license. issuance whose licenses were revoked, customs brokers’ licenses and all A list of revoked customs brokers’ set forth alphabetically. associated permits were revoked by licenses appears below with both the

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Company name License Port of issuance

Franklin Global Strategies ...... 23401 Buffalo. Anji Logistics USA Inc ...... 33344 Detroit.

Dated: May 7, 2020. United States (HTSUS). Any such tuna Branch, 90 K Street NE, 10th Floor, Brenda B. Smith, which is entered, or withdrawn from Washington, DC 20229–1177. Executive Assistant Commissioner, Office of warehouse, for consumption during the FOR FURTHER INFORMATION CONTACT: Trade. current calendar year in excess of this Requests for additional PRA information [FR Doc. 2020–10396 Filed 5–14–20; 8:45 am] quota will be dutiable at the rate of 12.5 should be directed to Seth Renkema, BILLING CODE 9111–14–P percent ad valorem under subheading 1604.14.30, HTSUS. Chief, Economic Impact Analysis Branch, U.S. Customs and Border Dated: May 8, 2020. Protection, Office of Trade, Regulations DEPARTMENT OF HOMELAND Brenda B. Smith, SECURITY and Rulings, 90 K Street NE, 10th Floor, Executive Assistant Commissioner, Office of Washington, DC 20229–1177, Trade. U.S. Customs and Border Protection Telephone number 202–325–0056 or via [FR Doc. 2020–10415 Filed 5–14–20; 8:45 am] _ [CBP-Dec. 20–08] email CBP [email protected]. Please BILLING CODE 9111–14–P note that the contact information Tuna Tariff-Rate Quota for Calendar provided here is solely for questions Year 2020 for Tuna Classifiable Under DEPARTMENT OF HOMELAND regarding this notice. Individuals Subheading 1604.14.22, Harmonized SECURITY seeking information about other CBP Tariff Schedule of the United States programs should contact the CBP (HTSUS) U.S. Customs and Border Protection National Customer Service Center at 877–227–5511, (TTY) 1–800–877–8339, AGENCY: U.S. Customs and Border Protection, Department of Homeland [1651–0088] or CBP website at https://www.cbp.gov/ Security. . Agency Information Collection ACTION: SUPPLEMENTARY INFORMATION: Announcement of the quota Activities: Passenger and Crew CBP quantity of tuna in airtight containers Manifest invites the general public and other for Calendar Year 2020. Federal agencies to comment on the AGENCY: U.S. Customs and Border proposed and/or continuing information SUMMARY: Each year, the tariff-rate quota Protection (CBP), Department of collections pursuant to the Paperwork for tuna described in subheading Homeland Security. Reduction Act of 1995 (44 U.S.C. 3501 1604.14.22, Harmonized Tariff Schedule of the United States (HTSUS), is ACTION: 60-Day notice and request for et seq.). This process is conducted in calculated as a percentage of the tuna in comments; revision of an existing accordance with 5 CFR 1320.8. Written airtight containers entered, or collection of information. comments and suggestions from the withdrawn from warehouse, for public and affected agencies should SUMMARY: The Department of Homeland address one or more of the following consumption during the preceding Security, U.S. Customs and Border calendar year. This document sets forth four points: (1) Whether the proposed Protection will be submitting the collection of information is necessary the tariff-rate quota for Calendar Year following information collection request for the proper performance of the 2020. to the Office of Management and Budget functions of the agency, including DATES: The 2020 tariff-rate quota is (OMB) for review and approval in applicable to tuna in airtight containers accordance with the Paperwork whether the information will have entered, or withdrawn from warehouse, Reduction Act of 1995 (PRA). The practical utility; (2) the accuracy of the for consumption during the period information collection is published in agency’s estimate of the burden of the January 1, 2020 through December 31, the Federal Register to obtain comments proposed collection of information, 2020. from the public and affected agencies. including the validity of the methodology and assumptions used; (3) FOR FURTHER INFORMATION CONTACT: Comments are encouraged and must be Julia suggestions to enhance the quality, Peterson, Chief, Quota and Agricultural submitted (no later than July 14, 2020) utility, and clarity of the information to Branch, Interagency Collaboration to be assured of consideration. be collected; and (4) suggestions to Division, Trade Policy and Programs, ADDRESSES: Written comments and/or Office of Trade, U.S. Customs and suggestions regarding the item(s) minimize the burden of the collection of Border Protection, Washington, DC contained in this notice must include information on those who are to 20229–1155, at (202) 384–8905 or by the OMB Control Number 1651–0088 in respond, including through the use of email at [email protected]. the subject line and the agency name. appropriate automated, electronic, To avoid duplicate submissions, please mechanical, or other technological Background use only one of the following methods collection techniques or other forms of It has been determined that to submit comments: information technology, e.g., permitting 15,881,292 kilograms of tuna in airtight (1) Email. Submit comments to: CBP_ electronic submission of responses. The containers may be entered, or [email protected]. comments that are submitted will be withdrawn from warehouse, for (2) Mail. Submit written comments to summarized and included in the request consumption during Calendar Year CBP Paperwork Reduction Act Officer, for approval. All comments will become 2020, at the rate of 6.0 percent ad U.S. Customs and Border Protection, a matter of public record. valorem under subheading 1604.14.22, Office of Trade, Regulations and Harmonized Tariff Schedule of the Rulings, Economic Impact Analysis

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Overview of This Information submitting passenger manifest data application immediately after the Collection voluntarily to assist CBP in writing information is submitted to CBP. Title: Passenger and Crew Manifest future regulations that will mandate the Prior to submitting passenger (Advance Passenger Information submission of this data in advance of information to CBP, the user must fill in System). passenger arrival into the United States. required arrival fields. These fields OMB Number: 1651–0088. CBP would like to revise this include: Form Number: None. information collection to include bus • Arrival Location in the U.S. Abstract: The Advance Passenger and rail respondents, which would • Estimated Arrival Date Information System (APIS) is an allow CBP to expand the pilot beyond • Estimated Arrival Time the current nine respondent limit. automated method in which U.S. • Arrival Code (Port of Entry) The collection of passenger manifest Customs and Border Protection (CBP) • Entry State receives information on passengers and data from bus and rail carriers arriving • in the U.S. is authorized by section Last Country Visited crew onboard inbound rail and bus trips • Contact Email before their arrival in the United States, 433(d) and 431(b) of the Tariff Act of as well as inbound and outbound 1930, as amended (19 U.S.C. 1433(d) ad Previously, the ROAM application international flights before their arrival 19 U.S.C. 1431(b)). Bus and rail carriers also permitted self-reported submission in, or departure from, the United States. submit their APIS information to CBP of information to CBP officers through a APIS data includes biographical via the Land Pre-Arrival System face-time feature. This self-reporting information for passengers arriving in or Application (LPAS), embedded in the feature has been disabled for LPAS and departing from the United States, ROAM application. will not be used at any time in allowing the data to be checked against In the ROAM application, the conjunction with the Bus APIS pilot or CBP databases. collection of passenger information is the resulting program that arises from The information is submitted for both primarily done through electronic the pilot. The bus carrier, either through commercial and private aircraft flights, submission. The bus or rail carrier the bus driver or another employee, will rail carriers and bus carriers. Specific designee submits passenger information be the only party submitting responses data elements required for each by scanning the Machine Readable Zone to the LPAS feature within the ROAM passenger and crew member include: (MRZ) of each passengers’ passport, application. The basis for this decision Full name; date of birth; gender; which automatically is loaded into the arose out of the necessity to collect citizenship; document type; passport application. Should the MRZ not traveler information prior to arrival in number; country of issuance and automatically go into the application, the land environment as it is done in the expiration date; and alien registration the bus carrier will manually input the air environment. For pre-arrival vetting number where applicable. passengers’ passport information. This and targeting to be conducted, officers APIS is authorized under the Aviation is the only point at which information must be able to collect information on and Transportation Security Act, (Pub. is collected from travelers. travelers prior to their arrival at the L. 107–71, Stat. 597 (2001)). Under The user registers the bus or rail as border to promote officer safety and statute, air carriers operating a the mode of travel and is prompted to increase security. In air Ports of Entry, passenger flight in foreign air complete information on the company. officers have access to traveler transportation to the United States must Information includes: information 72 hours prior to arrival. electronically transmit to CBP a • Mode of Travel (Bus/Rail) However, this standard does not exist in passenger and crew manifest containing • License Country the land environment, as travelers can • specific identifying data elements and Registration Province board a bus just 10 minutes prior to • any other information that DHS License Number arriving at the border. In the air • determines is reasonably necessary to Sender ID environment, airline carriers are the • Carrier Code (APIS code from CBP) users submitting traveler information. ensure aviation safety. The specific • passenger and crew identifying Bus/Rail Company Therefore, in order to closely mirror information required by statue consists Each carrier will be required to create this successful process, bus and rail of the following: Full name; date of a ‘Driver Profile’ by entering in their carriers will submit traveler data in the birth; gender; citizenship; passport documentation using the MRZ or land environment. In order to reduce number; country of issuance; and U.S. manually. This profile is then saved to the burden of manual data entry, the visa number or resident alien card be associated with each bus or rail that LPAS feature includes a technology that where applicable. See 49 U.S.C. the driver operates and will have to be reads the MRZ on a passport. As a 44909(c). The APIS regulatory selected prior to submitting the trip. The result, the bus driver can simply scan a requirements are specified in 19 CFR drivers are prompted to information on passenger’s passport in order to 122.49a, 122.49b, 122.49c, 122.75a, themselves, including: populate the required data fields and 122.75b, and 122.22. These provisions • Name accurately submit that data to CBP. lists all the required APIS data. • Date of Birth Type of Review: Revision. Respondents submit their electronic • Sex Affected Public: Businesses, manifest either through a direct • Country of Citizenship Individuals. • Country of Residence interface with CBP, or using eAPIS Commercial Airlines which is a web-based system that can be • Document Type accessed at https://eapis.cbp.dhs.gov/. • Document Number Estimated Number of Respondents: Current Actions: This submission is • Date of Issue 1,130. being made to revise this collection of • Date of Expiration Estimated Number of Total Annual information to include bus and rail • Country of Issue Responses: 1,850,878. carriers into this OMB control number. This process is then duplicated for Estimated Time per Response: 10 Proposed Changes: CBP is currently passengers boarding the bus or train. minutes. running a pilot with nine respondents Each traveler profile is then saved for Estimated Total Annual Burden in which Bus carriers are currently the trip but is deleted from the Hours: 307,246.

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Commercial Airline Passengers (3rd general public to take this opportunity Collection of Information party) to comment on a revision of a currently Title: FEMA Preparedness Grants: Estimated Number of Respondents: approved information collection. In accordance with the Paperwork Nonprofit Security Grant Program 184,050,663. (NSGP). Estimated Number of Total Annual Reduction Act of 1995, this notice seeks Responses: 184,050,663. comments concerning the Nonprofit Type of Information Collection: Estimated Time per Response: 10 Security Grant Program (NSGP). The Revision of a currently approved seconds. NSGP provides funding support for information collection. Estimated Total Annual Burden security related enhancements to OMB Number: 1660–0110. Hours: 496,937. nonprofit organizations that are at high risk of a terrorist attack. FEMA Forms: FEMA Form 089–24 Private Aircraft Pilots NSGP Prioritization of Investment Estimated Number of Respondents: DATES: Comments must be submitted on Justifications; FEMA Form 089–25 460,000. or before July 14, 2020. NSGP Investment Justification. Estimated Number of Total Annual ADDRESSES: To avoid duplicate Abstract: The Nonprofit Security Responses: 460,000. submissions to the docket, please use Grant Program provides funding support Estimated Time per Response: 15 only one of the following means to for security related enhancements to minutes. submit comments: nonprofit organizations that are at high Estimated Total Annual Burden risk of a terrorist attack. The program Hours: 115,000. (1) Online. Submit comments at www.regulations.gov under Docket ID seeks to integrate the preparedness Commercial Passenger Rail Carrier FEMA–2020–0015. Follow the activities of nonprofit organizations that Estimated Number of Respondents: 2. instructions for submitting comments. are at high risk of a terrorist attack with Estimated Number of Total Annual broader state and local preparedness (2) Mail. Submit written comments to efforts. Responses: 9,540. Docket Manager, Office of Chief Estimated Time per Response: 10 Counsel, DHS/FEMA, 500 C Street SW, Affected Public: State or Tribal seconds. 8NE, Washington, DC 20472–3100. governments, and not-for-profit Estimated Total Annual Burden institutions. Hours: 26. All submissions received must include the agency name and Docket ID. Estimated Number of Respondents: Bus Passenger Carrier Regardless of the method used for 2,086. Estimated Number of Respondents: 9. submitting comments or material, all Estimated Number of Responses: Estimated Number of Total Annual submissions will be posted, without 2,086. Responses: 309,294. change, to the Federal eRulemaking Estimated Total Annual Burden Estimated Time per Response: 15 Portal at http://www.regulations.gov, Hours: 8,960. minutes. and will include any personal Estimated Total Annual Burden information you provide. Therefore, Estimated Total Annual Respondent Hours: 77,324. submitting this information makes it Cost: $338,766. Dated: May 12, 2020. public. You may wish to read the Estimated Respondents’ Operation Seth D. Renkema, Privacy and Security Notice that is and Maintenance Costs: $0. Branch Chief, Economic Impact Analysis available via a link on the homepage of Estimated Respondents’ Capital and Branch, U.S. Customs and Border Protection. www.regulations.gov. Start-Up Costs: $0. [FR Doc. 2020–10455 Filed 5–14–20; 8:45 am] FOR FURTHER INFORMATION CONTACT: Estimated Total Annual Cost to the BILLING CODE P Samrawit Aragie, Program Analyst, Federal Government: $339,751. FEMA Grant Programs Directorate, Preparedness Grants Program, 202–786– Comments DEPARTMENT OF HOMELAND 9846, [email protected]. SECURITY Comments may be submitted as You may contact the Information indicated in the ADDRESSES caption Federal Emergency Management Management Division for copies of the above. Comments are solicited to (a) Agency proposed collection of information at evaluate whether the proposed data email address: FEMA-Information- collection is necessary for the proper [Docket ID: FEMA–2020–0015; OMB No. [email protected]. 1660–0110] performance of the agency, including SUPPLEMENTARY INFORMATION: The whether the information shall have Agency Information Collection collection of information for the practical utility; (b) evaluate the Activities: Proposed Collection; Nonprofit Security Grant Program is accuracy of the agency’s estimate of the Comment Request; FEMA mandated by Sections 2003, 2004, and burden of the proposed collection of Preparedness Grants: Nonprofit 2009 of the Homeland Security Act of information, including the validity of Security Grant Program 2002 (codified as amended at 6 U.S.C. the methodology and assumptions used; AGENCY: Federal Emergency 604, 605, 609a) and various (c) enhance the quality, utility, and Management Agency, DHS. appropriations acts. The information clarity of the information to be collected (1) is required to assess the collected; and (d) minimize the burden ACTION: 60-Day notice and request for of the collection of information on those comments. need and potential impact of NSGP funding requests from nonprofit who are to respond, including through SUMMARY: The Federal Emergency organizations; and (2) allows for a fair the use of appropriate automated, Management Agency, as part of its method to evaluate requests and electronic, mechanical, or other continuing effort to reduce paperwork determine which applications will be technological collection techniques or and respondent burden, invites the selected for funding. other forms of information technology,

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e.g., permitting electronic submission of entries into the United States, including IIRIRA to install additional physical responses. the immediate construction of physical barriers and roads in the Laredo Sector. infrastructure to prevent illegal entry. Therefore, DHS will take immediate Maile Arthur, Executive Order 13767, section 4(a). action to construct barriers and roads. Deputy Director, Information Management Congress has provided to the The area in the vicinity of the border Division, Office of the Chief Administrative Officer, Mission Support, Federal Emergency Secretary of Homeland Security a within which such construction will Management Agency, Department of number of authorities necessary to carry occur is more specifically described in Homeland Security. out DHS’s border security mission. One Section 2 below. [FR Doc. 2020–10380 Filed 5–14–20; 8:45 am] of those authorities is found at section Section 2 BILLING CODE 9111–46–P 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of I determine that the following area in 1996, as amended (‘‘IIRIRA’’). Public the vicinity of the United States border, DEPARTMENT OF HOMELAND Law 104–208, Div. C, 110 Stat. 3009– located in the State of Texas within the SECURITY 546, 3009–554 (Sept. 30, 1996) (8 U.S.C Laredo Sector, is an area of high illegal entry (the ‘‘project area’’): 1103 note), as amended by the REAL ID • Office of the Secretary Act of 2005, Public Law 109–13, Div. B, Starting at the Columbia Solidarity 119 Stat. 231, 302, 306 (May 11, 2005) International Bridge and generally Determination Pursuant to Section 102 (8 U.S.C. 1103 note), as amended by the following the Rio Grande River south of the Illegal Immigration Reform and Secure Fence Act of 2006, Public Law and east to approximately one-half (0.5) Immigrant Responsibility Act of 1996, 109–367, section 3, 120 Stat. 2638 (Oct. of a mile south of the southern as Amended 26, 2006) (8 U.S.C. 1103 note), as boundary of the city limits of San amended by the Department of Ignacio, Texas. AGENCY: Office of the Secretary, There is presently an acute and Homeland Security Appropriations Act, Department of Homeland Security. immediate need to construct physical 2008, Public Law 110–161, Div. E, Title ACTION: Notice of determination. barriers and roads in the vicinity of the V, section 564, 121 Stat. 2090 (Dec. 26, border of the United States in order to SUMMARY: The Acting Secretary of 2007). In section 102(a) of IIRIRA, prevent unlawful entries into the United Homeland Security has determined, Congress provided that the Secretary of States in the project area pursuant to pursuant to law, that it is necessary to Homeland Security shall take such waive certain laws, regulations, and sections 102(a) and 102(b) of IIRIRA. In actions as may be necessary to install order to ensure the expeditious other legal requirements in order to additional physical barriers and roads ensure the expeditious construction of construction of the barriers and roads in (including the removal of obstacles to the project area, I have determined that barriers and roads in the vicinity of the detection of illegal entrants) in the international land border in Webb it is necessary that I exercise the vicinity of the United States border to authority that is vested in me by section County, Texas, and Zapata County, deter illegal crossings in areas of high Texas. 102(c) of IIRIRA. illegal entry into the United States. In Accordingly, pursuant to section DATES: This determination takes effect section 102(b) of IIRIRA, Congress 102(c) of IIRIRA, I hereby waive in their on May 15, 2020. mandated the installation of additional entirety, with respect to the SUPPLEMENTARY INFORMATION: Important fencing, barriers, roads, lighting, construction of physical barriers and mission requirements of the Department cameras, and sensors on the southwest roads (including, but not limited to, of Homeland Security (‘‘DHS’’) include border. Finally, in section 102(c) of accessing the project areas, creating and border security and the detection and IIRIRA, Congress granted to the using staging areas, the conduct of prevention of illegal entry into the Secretary of Homeland Security the earthwork, excavation, fill, and site United States. Border security is critical authority to waive all legal requirements preparation, and installation and to the nation’s national security. that I, in my sole discretion, determine upkeep of physical barriers, roads, Recognizing the critical importance of necessary to ensure the expeditious supporting elements, drainage, erosion border security, Congress has mandated construction of barriers and roads controls, safety features, lighting, DHS to achieve and maintain authorized by section 102 of IIRIRA. cameras, and sensors) in the project operational control of the international Determination and Waiver area, all of the following statutes, land border. Secure Fence Act of 2006, including all federal, state, or other Public Law 109–367, section 2, 120 Stat. Section 1 laws, regulations, and legal 2638 (Oct. 26, 2006) (8 U.S.C. 1701 The United States Border Patrol’s requirements of, deriving from, or note). Congress defined ‘‘operational (Border Patrol) Laredo Sector is an area related to the subject of, the following control’’ as the prevention of all of high illegal entry. In fiscal year 2019, statutes, as amended: unlawful entries into the United States, the Border Patrol apprehended over The National Environmental Policy including entries by terrorists, other 38,000 illegal aliens attempting to enter Act (Pub. L. 91–190, 83 Stat. 852 (Jan. unlawful aliens, instruments of the United States between border 1, 1970) (42 U.S.C. 4321 et seq.)); the terrorism, narcotics, and other crossings in the Laredo Sector. In that Endangered Species Act (Pub. L. 93– contraband. Id. Consistent with that same time period, the Border Patrol had 205, 87 Stat. 884 (Dec. 28, 1973) (16 mandate from Congress, the President’s over 400 drug-related events between U.S.C. 1531 et seq.)); the Federal Water Executive Order on Border Security and border crossings in the Laredo Sector, Pollution Control Act (commonly Immigration Enforcement Improvements through which it seized over 36,000 referred to as the Clean Water Act (33 directed executive departments and pounds of marijuana, over 500 pounds U.S.C. 1251 et seq.)); the National agencies to deploy all lawful means to of cocaine, over 28 pounds of heroin, Historic Preservation Act (Pub. L. 89– secure the southern border. Executive and over 500 pounds of 665, 80 Stat. 915 (Oct. 15, 1966), as Order 13767, section 1. In order to methamphetamine. amended, repealed, or replaced by achieve that end, the President directed, Owing to the high levels of illegal Public Law 113–287, 128 Stat. 3094 among other things, that I take entry within the Laredo Sector, I must (Dec. 19, 2014) (formerly codified at 16 immediate steps to prevent all unlawful use my authority under section 102 of U.S.C. 470 et seq., now codified at 54

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U.S.C. 100101 note and 54 U.S.C. delegating the authority to electronically number via TTY by calling the Federal 300101 et seq.)); the Migratory Bird sign this document to Chad R. Mizelle, Information Relay Service at (800) 877– Treaty Act (16 U.S.C. 703 et seq.); the who is the Senior Official Performing 8339. Copies of available documents Migratory Bird Conservation Act (16 the Duties of the General Counsel for submitted to OMB may be obtained U.S.C. 715 et seq.); the Clean Air Act (42 DHS, for purposes of publication in the from Ms. Smith. U.S.C. 7401 et seq.); the Archeological Federal Register. SUPPLEMENTARY INFORMATION: This Resources Protection Act (Pub. L. 96–95, Chad R. Mizelle, notice informs the public that HUD is 93 Stat. 721 (Oct. 31, 1979) (16 U.S.C. seeking approval from OMB for the 470aa et seq.)); the Paleontological Senior Official Performing the Duties of the General Counsel. information collection described in Resources Preservation Act (16 U.S.C. Section A. 470aaa et seq.); the Federal Cave [FR Doc. 2020–10383 Filed 5–14–20; 8:45 am] Resources Protection Act of 1988 (16 BILLING CODE 9111–14–P A. Overview of Information Collection U.S.C. 4301 et seq.); the Safe Drinking Title of Information Collection: Water Act (42 U.S.C. 300f et seq.); the Allocation of Operating Funds under Noise Control Act (42 U.S.C. 4901 et DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT the Operating Fund Formula: Data seq.); the Solid Waste Disposal Act, as Collection. amended by the Resource Conservation [Docket No. FR–7028–N–01; OMB Control OMB Approval Number: 2577–0029. and Recovery Act (42 U.S.C. 6901 et No. 2577–0029] Type of Request: Extension of seq.); the Comprehensive Environmental currently approved collections. Response, Compensation, and Liability 60-Day Notice of Proposed Information Act (42 U.S.C. 9601 et seq.); the Collection: Allocation of Operating Form Number: HUD–52722 and Archaeological and Historic Fund Grant Under the Operating Fund HUD–52723. Preservation Act (Pub. L. 86–523, 74 Formula: Data Collection Description of the need for the information and proposed use: Public Stat. 220 (June 27, 1960) as amended, AGENCY: Office of the Assistant repealed, or replaced by Pub. L. 113– Housing Agencies (PHAs) use this Secretary for Public and Indian information in budget submissions 287, 128 Stat. 3094 (Dec. 19, 2014) Housing, PIH, HUD. (formerly codified at 16 U.S.C. 469 et which are reviewed and approved by ACTION: Notice. seq., now codified at 54 U.S.C. 312502 HUD field offices as the basis for obligating the operating fund grant. This et seq.)); the Antiquities Act (formerly SUMMARY: HUD is seeking approval from codified at 16 U.S.C. 431 et seq., now the Office of Management and Budget information is necessary to calculate the codified at 54 U.S.C. 320301 et seq.); the (OMB) for the information collection eligibility for the operating fund grant Historic Sites, Buildings, and described below. In accordance with the under the Operating Funding Program Antiquities Act (formerly codified at 16 Paperwork Reduction Act, HUD is regulations, as amended. The Operating U.S.C. 461 et seq., now codified at 54 requesting comment from all interested Fund is designed to provide the amount U.S.C. 3201–320303 & 320101–320106); parties on the proposed collection of of operating funds needed for well- the Farmland Protection Policy Act (7 information. The purpose of this notice managed PHAs. PHAs submit the U.S.C. 4201 et seq.); National Fish and is to allow for 60 days of public information electronically with these Wildlife Act of 1956 (Pub. L. 84–1024 comment. forms. (16 U.S.C. 742a, et seq.)); the Fish and The following changes occurred in DATES: Comments Due Date: July 14, Wildlife Coordination Act (Pub. L. 73– this submission. The form no longer 2020. 121, 48 Stat. 401 (March 10, 1934) (16 includes blocks 4. Unit Change U.S.C. 661 et seq.)); the National Trails ADDRESSES: Interested persons are Indicator and 5. Rate Reduction System Act (16 U.S.C. 1241 et seq.); the invited to submit comments regarding Incentive. The form includes Administrative Procedure Act (5 U.S.C. this proposal. Comments should refer to adjustments to improve the workflow of 551 et seq.); the Rivers and Harbors Act the proposal by name and/or OMB the form. Adjustments include changes of 1899 (33 U.S.C. 403); the Wild and Control Number and should be sent to: to formatting and adding Line 19 Total Scenic Rivers Act (Pub. L. 90–542 (16 Colette Pollard, Reports Management base utilities expense level for U.S.C. 1281 et seq.)); the Eagle Officer, QDAM, Department of Housing respondents to clearly understand Protection Act (16 U.S.C. 668 et seq.); and Urban Development, 451 7th Street, where to sum the results of data the Native American Graves Protection SW, Room 4176, Washington, DC collected in columns. and Repatriation Act (25 U.S.C. 3001 et 20410–5000; telephone 202–402–5564 HUD collects information for HUD– seq.); and the American Indian (this is not a toll-free number) or email 52723 and HUD–52722 through VBA Religious Freedom Act (42 U.S.C. 1996). at [email protected] for a copy of enhanced Microsoft Excel Tools. In This waiver does not revoke or the proposed forms or other available fiscal year 2021, HUD plans to transition supersede any other waiver information. Persons with hearing or to web-based forms HUD–52723 and determination made pursuant to section speech impairments may access this HUD–52722. HUD planned a phased 102(c) of IIRIRA. Such waivers shall number through TTY by calling the toll- launch of the web-based collection. remain in full force and effect in free Federal Relay Service at (800) 877– Initially the collection by web-based accordance with their terms. I reserve 8339. forms is limited to subset PHAs that the authority to execute further waivers FOR FURTHER INFORMATION CONTACT: HUD expands each subsequent year from time to time as I may determine to Dawn Smith, Office of Policy, Programs until all PHAs exclusively use the web- be necessary under section 102 of and Legislative Initiatives, PIH, based forms. PHAs without access to the IIRIRA. Department of Housing and Urban web-based forms continue to use the Development, 451 7th Street SW, (Room Excel based forms. Web-based forms Signature 3178), Washington, DC 20410; improves the availability of the forms to The Acting Secretary of Homeland telephone 202–402–6488 (this is not a PHAs, improves data integrity, and Security, Chad F. Wolf, having reviewed toll-free number). Persons with hearing secure transfer of the data from the PHA and approved this document, is or speech impairments may access this to HUD.

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TOTAL ESTIMATED BURDENS

Number of Frequency of Responses Burden hour Annual burden Hourly cost Information collection respondents response per annum per response hours per response Annual cost

HUD–52722 ...... 7,000 1 0.75 5,250 5,250 $33.34 $175,035 HUD–52723 ...... 7,000 1 0.75 5,250 5,250 33.34 175,035

Total ...... 10,500 ...... 350,070

B. Solicitation of Public Comment DEPARTMENT OF THE INTERIOR FOR FURTHER INFORMATION CONTACT: Contact either of the two following This notice is soliciting comments Fish and Wildlife Service individuals for more information: from members of the public and affected • Karin Cleary-Rose, USFWS, via _ parties concerning the collection of [FWS–R8–ES–2020–N062; FXES11140000– email to karin [email protected], information described in Section A on 201–FF08E00000] telephone at 760–322–2070, or U.S. mail the following: at 777 E Tahquitz Canyon Way, Suite (1) Whether the proposed collection Final Environmental Impact Statement 208, Palm Springs, CA 92262; or • Daniel Cozad, via email to dcozad@ of information is necessary for the for the Upper Santa Ana River Wash Habitat Conservation Plan; San sbvwcd.org. proper performance of the functions of Bernardino County, CA TTY users can contact the above the agency, including whether the individuals by calling 800–877–8339. information will have practical utility; AGENCY: Fish and Wildlife Service, SUPPLEMENTARY INFORMATION: The (2) The accuracy of the agency’s Interior. Service received applications submitted estimate of the burden of the proposed ACTION: Notice of availability. by the San Bernardino Valley Water collection of information; Conservation District (District, (3) Ways to enhance the quality, SUMMARY: We, the U.S. Fish and applicant), and the San Bernardino utility, and clarity of the information to Wildlife Service (Service), announce the County Flood Control District (SBCFCD, be collected; and availability of a final environmental applicant) for incidental take permits impact statement (EIS) analyzing the (ITPs) under section 10 (a)(1)(B) of the (4) Ways to minimize the burden of impacts of issuance of two incidental Endangered Species Act, as amended the collection of information on those take permits (ITPs) under the (ESA; 16 U.S.C. 1531 et seq.). The final who are to respond; including through Endangered Species Act for environmental impact statement (EIS) the use of appropriate automated implementation of the Upper Santa Ana was developed in compliance with the collection techniques or other forms of River Wash Habitat Conservation Plan Service’s decision-making requirements information technology, e.g., permitting (HCP). Our proposed decision is to issue under the National Environmental electronic submission of responses. 30-year ITPs to the San Bernardino Policy Act (NEPA; 42 U.S.C. 4321 et HUD encourages interested parties to Valley Water Conservation District seq.) and analyzes three alternatives, submit comment in response to these (District) and the San Bernardino including the Upper Santa Ana River questions. County Flood Control District (SBCFCD) Wash Habitat Conservation Plan (HCP) covering two federally listed animal submitted by the applicants. The Authority: Section 3507 of the Paperwork species, two federally listed plant applicants’ proposed HCP covers five Reduction Act of 1995, 44 U.S.C. Chapter 35. species, and one non-listed animal species (two federally listed animal The Deputy Assistant Director for the species. The HCP covers activities for species, two federally listed plant Office of Policy, Programs and Legislative water conservation, aggregate mining, species, and one non-listed animal Initiatives, Merrie Nichols-Dixon having recreation, flood control, and other species). The HCP covers activities for reviewed and approved this document, is public services in San Bernardino water conservation, aggregate mining, delegating the authority to electronically sign County, California. The final EIS is a recreation, flood control, and other this document to submitter, Nacheshia Foxx, joint Environmental Impact Statement/ public services in San Bernardino who is the Federal Register Liaison for HUD, Supplemental Environmental Impact County, California. The EIS is a joint for purposes of publication in the Federal Report (EIS/SEIR). The final SEIR Environmental Impact Statement/ Register. portion of the joint document was Supplemental Environmental Impact Dated: May 5, 2020. prepared by the District in compliance Report (EIS/SEIR). The SEIR portion of Nacheshia Foxx, with the California Environmental the joint document was prepared by the Quality Act. District in compliance with the Federal Register Liaison for the Department California Environmental Quality Act. of Housing and Urban Development. DATES: This notice initiates the availability of the final EIS. A record of The EIS/SEIR evaluates the direct, [FR Doc. 2020–10452 Filed 5–14–20; 8:45 am] indirect, and cumulative impacts of BILLING CODE 4210–67–P decision will be signed no sooner than 30 days after the publication of this several alternatives related to the notice of availability in the Federal Service’s decision whether to issue ITPs Register. in response to the District’s and SBCFCD’s applications. The project area ADDRESSES: Obtaining Documents: You lies within San Bernardino County, may obtain the documents by the primarily in the cities of Highland and following methods. Redlands, as well as within the • Internet: https://www.fws.gov/ unincorporated County area. The plan carlsbad/HCPs/HCP_Docs.html or area encompasses approximately 4,892 https://sbvwcd.org. acres.

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Background or degradation that actually kills or land uses already in operation in the injures listed wildlife by significantly Wash, covering an area totaling 166.9 Section 9 of the ESA prohibits the impairing essential behavioral patterns, acres; and ‘‘take’’ of fish and wildlife species including breeding, feeding, and • Expansion or enhancement of federally listed as endangered without sheltering (50 CFR 17.3). Under limited facilities planned for the Wash area, special exemption. Federal regulations circumstances, we may issue permits to totaling 634.1 acres. promulgated under section 4(d) of the authorize take that is incidental to and Habitat Conservation Plan Covered ESA may also prohibit take of fish and not the purpose of otherwise lawful Species wildlife species federally listed as activities. threatened. Take of the coastal The proposed ITPs would cover five California gnatcatcher (the only Habitat Conservation Plan Covered species. Incidental take authorization threatened animal species covered by Activities would be provided under the ITPs for the HCP) is prohibited by regulation. The Service’s proposed action is to the wildlife species; the plant species ‘‘Take’’ of federally listed fish or issue ITPs to the applicants consistent are included in recognition of the wildlife is defined under the ESA as to with the Upper Santa Ana River Wash conservation measures provided under harass, harm, pursue, hunt, shoot, HCP. The HCP covers two types of the HCP and to provide No Surprises wound, kill, trap, capture, or collect activities in the Upper Santa Ana River assurances to the applicants for the listed species, or attempt to engage in Wash Plan project area: covered plants under 50 CFR such conduct (16 U.S.C. 1538). ‘‘Harm’’ • Activities related to the operations 17.22(b)(5). The applicant’s HCP includes significant habitat modification and maintenance of existing facilities or includes the following species:

Species Federal listing status

Coastal California gnatcatcher (Polioptila californica californica) ...... Threatened. San Bernardino kangaroo rat (Dipodomys merriami parvus) ...... Endangered. Cactus wren (Campylorhynchus brunneicapillus) ...... Not listed. Santa Ana River woolly-star (Eriastrum densifolium ssp. sanctorum) ...... Endangered. Slender-horned spineflower (Dodecahema leptoceras) ...... Endangered.

The HCP proposes conservation EPA’s Role in the EIS Process made available for public disclosure in measures considered necessary to In addition to this notice, the EPA is their entirety. minimize and mitigate, to the maximum publishing a notice in the Federal Authority extent practicable, the impacts of the Register announcing this EIS, as incidental taking of covered species in required under section 309 of the Clean We provide this notice under section the HCP. Air Act. The publication date of EPA’s 10(c) of the ESA (16 U.S.C. 1531 et seq.) notice of availability is the official and its implementing regulations (50 National Environmental Policy Act CFR 17.22), and NEPA (42 U.S.C. 4321 Compliance beginning of the public comment period. EPA’s notices are published on et seq.) and NEPA implementing The EIS/SEIR addresses the Federal Fridays. regulations (40 CFR 1506.6). and local actions associated with the EPA serves as the repository (EIS proposed issuance of the ITPs and Michael Fris, database) for EISs prepared by Federal Assistant Regional Director, Pacific implementation of the HCP and covered agencies. All EISs must be filed with activities. We published a notice of Southwest Region, U.S. Fish and Wildlife EPA. You may search for EPA Service, Sacramento, California. intent to prepare a draft EIS/SEIR in the comments on EISs, along with EISs Federal Register on March 3, 2015 (80 [FR Doc. 2020–10120 Filed 5–14–20; 8:45 am] themselves, at https:// BILLING CODE 4333–15–P FR 11463), and we published the notice cdxnodengn.epa.gov/cdx-enepa-public/ of availability of the draft EIS/SEIR on action/eis/search. December 9, 2019 (84 FR 67292), which DEPARTMENT OF THE INTERIOR included a 45-day public comment Public Review period. Any comments we receive will Fish and Wildlife Service The EIS/SEIR analyzes three become part of the decision record alternatives: The No Action Alternative, associated with this action. Before [Docket No. FWS–R4–ES–2020–0034; the Proposed Action Alternative, and including your address, phone number, FXES11130400000EA–123–FF04EF1000] Action Alternative 1. The Service has email address, or other personal Receipt of Incidental Take Permit identified the Proposed Action identifying information in your Application and Proposed Habitat Alternative as the preferred alternative. comment, you should be aware that Conservation Plan for the Sand Skink, We received 13 comment letters on the your entire comment—including your Orange County, FL; Categorical draft EIS/SEIR and the proposed HCP. A personal identifying information—may Exclusion response to each comment received in be made publicly available at any time. these letters has been included in the While you can request in your comment AGENCY: Fish and Wildlife Service, final EIS/SEIR. Minor revisions to the that we withhold your personal Interior. final EIS/SEIR or to the final HCP have identifying information from public ACTION: Notice of availability; request been made to address the comments review, we cannot guarantee that we for comment and information. received on the draft documents. The will be able to do so. All submissions descriptions and analysis of the three from organizations or businesses, and SUMMARY: We, the Fish and Wildlife alternatives analyzed in the final EIS/ from individuals identifying themselves Service (Service), announce receipt of SEIR generally remain the same as as representatives or officials of an application from Lennar Homes presented in the draft EIS/SEIR. organizations or businesses, will be (applicant) for an incidental take permit

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(ITP) under the Endangered Species Act. Project considering the above findings, we will The applicant requests the ITP to take The applicant requests a 5-year ITP to determine whether the permit issuance the federally listed sand skink take sand skinks incidental through the criteria of section 10(a)(1)(B) of the ESA incidental to construction in Orange conversion of approximately 3.5 acres of have been met. If met, the Service will County, Florida. We request public occupied sand skink foraging and issue ITP number TE 62777D–0 to comment on the application, which sheltering habitat incidental to the Lennar Homes. includes the applicant’s proposed construction of a housing development Authority habitat conservation plan (HCP), and the located on a 139.71-acre parcel in The Service provides this notice Service’s preliminary determination that Section 18, Township 24 South, Range under section 10(c) (16 U.S.C. 1539(c)) this HCP qualifies as ‘‘low effect,’’ 27 East, Orange County, Florida, of the ESA and NEPA regulation 40 CFR categorically excluded, under the identified by Parcel ID number 07–24– 1506.6. National Environmental Policy Act. To 27–0000–00–009. The applicant make this determination, we used our proposes to mitigate for take of the sand Jay Herrington, environmental action statement and skinks by the purchase of 7 credits from Field Supervisor, Jacksonville Field Office. low-effect screening form, both of which Lake Wales Ridge Conservation Bank or [FR Doc. 2020–10438 Filed 5–14–20; 8:45 am] are also available for public review. another Service-approved conservation BILLING CODE 4333–15–P DATES: We must receive your written bank. The Service would require the comments on or before June 15, 2020. applicant to purchase the credits prior ADDRESSES: to engaging in activities associated with DEPARTMENT OF THE INTERIOR Obtaining Documents: You may the project on the parcel. obtain copies of the documents online Fish and Wildlife Service Public Availability of Comments in Docket No. FWS–R4–ES–2020–0034 [Docket No. FWS–R4–ES–2020–0037; at http://www.regulations.gov. Before including your address, phone FXES11130400000EA–123–FF04EF1000] Submitting Comments: If you wish to number, email address, or other submit comments on any of the personal identifying information in your Receipt of Incidental Take Permit documents, you may do so in writing by comment, be aware that your entire Application and Proposed Habitat any of the following methods: comment, including your personal Conservation Plan for the Sand Skink, • Online: http://www.regulations.gov. identifying information, may be made Orange County, FL; Categorical Follow the instructions for submitting available to the public. While you may Exclusion comments on Docket No. FWS–R4–ES– request that we withhold your personal 2020–0034. identifying information, we cannot AGENCY: Fish and Wildlife Service, • U.S. Mail: Public Comments guarantee that we will be able to do so. Interior. ACTION: Notice of availability; request Processing, Attn: Docket No. FWS–R4– Our Preliminary Determination ES–2020–0034; U.S. Fish and Wildlife for comment and information. Service, MS: PRB/3W, 5275 Leesburg The Service has made a preliminary SUMMARY: We, the Fish and Wildlife Pike, Falls Church, VA 22041–3803. determination that the applicant’s project, including land clearing, Service (Service), announce receipt of FOR FURTHER INFORMATION CONTACT: Erin infrastructure building, landscaping, an application from VK Avalon Groves M. Gawera, by telephone at (904) 731– and the proposed mitigation measures, LLC (applicant) for an incidental take 3121 or via email at erin_gawera@ would individually and cumulatively permit (ITP) under the Endangered fws.gov. Individuals who are hearing or have a minor or negligible effect on sand Species Act. The applicant requests the speech impaired may call the Federal skinks and the environment. Therefore, ITP to take the federally listed sand Relay Service at 1–800–877–8339 for we have preliminarily concluded that skink incidental to construction in TTY assistance. the ITP for this project would qualify for Orange County, Florida. We request SUPPLEMENTARY INFORMATION: We, the categorical exclusion and the HCP is public comment on the application, Fish and Wildlife Service (Service), low effect under our NEPA regulations which includes the applicant’s announce receipt of an application from at 43 CFR 46.205 and 46.210. A low- proposed habitat conservation plan Lennar Homes for an incidental take effect HCP is one that would result in (HCP), and the Service’s preliminary permit (ITP) under the Endangered (1) minor or negligible effects on determination that this HCP qualifies as Species Act of 1973, as amended (ESA; federally listed, proposed, and ‘‘low-effect,’’ categorically excluded, 16 U.S.C. 1531 et seq.). The applicant candidate species and their habitats; (2) under the National Environmental requests the ITP to take the federally minor or negligible effects on other Policy Act. To make this determination, listed sand skink (Neoseps reynoldsi) environmental values or resources; and, we used our environmental action incidental to the construction of a (3) impacts that, when considered statement and low-effect screening form, housing development (project) in together with the impacts of other past, both of which are also available for Orange County, Florida. We request present, and reasonably foreseeable public review. public comment on the application, similarly situated projects, would not DATES: We must receive your written which includes the applicant’s over time result in significant comments on or before June 15, 2020. proposed habitat conservation plan cumulative effects to environmental ADDRESSES: (HCP), and on the Service’s preliminary values or resources. Obtaining Documents: You may determination that this HCP qualifies as obtain copies of the documents online Next Steps ‘‘low effect,’’ categorically excluded, in Docket No. FWS–R4–ES–2020–0037 under the National Environmental The Service will evaluate the at http://www.regulations.gov. Policy Act (NEPA; 42 U.S.C. 4231 et application and the comments received Submitting Comments: If you wish to seq.). To make this determination, we to determine whether to issue the submit comments on any of the used our environmental action requested permit. We will also conduct documents, you may do so in writing by statement and low-effect screening form, an intra-Service consultation pursuant any of the following methods: which are also available for public to section 7 of the ESA to evaluate the • Online: http://www.regulations.gov. review. effects of the proposed take. After Follow the instructions for submitting

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comments on Docket No. FWS–R4–ES– available to the public. While you may DEPARTMENT OF THE INTERIOR 2020–0037. request that we withhold your personal • U.S. Mail: Public Comments identifying information, we cannot Fish and Wildlife Service Processing, Attn: Docket No. FWS–R4– guarantee that we will be able to do so. [Docket No. FWS–R4–ES–2020–0036; ES–2020–0037; U.S. Fish and Wildlife FXES11130400000EA–123–FF04EF1000] Service, MS: PRB/3W, 5275 Leesburg Our Preliminary Determination Pike, Falls Church, VA 22041–3803. The Service has made a preliminary Receipt of Incidental Take Permit Application and Proposed Habitat FOR FURTHER INFORMATION CONTACT: Erin determination that the applicant’s Conservation Plan for the Sand Skink, M. Gawera, by telephone at (904) 731– project, including land clearing, _ Lake County, FL; Categorical 3121 or via email at erin gawera@ infrastructure building, landscaping, Exclusion fws.gov. Individuals who are hearing or and the proposed mitigation measures, speech impaired may call the Federal would individually and cumulatively AGENCY: Fish and Wildlife Service, Relay Service at 1–800–877–8339 for have a minor or negligible effect on sand Interior. TTY assistance. skinks and the environment. Therefore, ACTION: Notice of availability; request SUPPLEMENTARY INFORMATION: We, the we have preliminarily concluded that for comment and information. Fish and Wildlife Service (Service), the ITP for this project would qualify for announce receipt of an application from categorical exclusion and the HCP is SUMMARY: We, the Fish and Wildlife VK Avalon Groves LLC for an incidental low effect under our NEPA regulations Service (Service), announce receipt of take permit (ITP) under the Endangered at 43 CFR 46.205 and 46.210. A low- an application from Asma & Asma Species Act of 1973, as amended (ESA; effect HCP is one that would result in (applicant) for an incidental take permit 16 U.S.C. 1531 et seq.). The applicant (ITP) under the Endangered Species Act. (1) minor or negligible effects on requests the ITP to take the federally The applicant requests the ITP to take federally listed, proposed, and listed sand skink (Neoseps reynoldsi) the federally listed sand skink incidental to the construction of a candidate species and their habitats; (2) incidental to construction in Lake residential subdivision (project) in minor or negligible effects on other County, Florida. We request public Orange County, Florida. We request environmental values or resources; and, comment on the application, which public comment on the application, (3) impacts that, when considered includes the applicant’s proposed which includes the applicant’s together with the impacts of other past, habitat conservation plan (HCP), and the proposed habitat conservation plan present, and reasonably foreseeable Service’s preliminary determination that (HCP), and on the Service’s preliminary similarly situated projects, would not this HCP qualifies as ‘‘low-effect,’’ determination that this HCP qualifies as over time result in significant categorically excluded, under the ‘‘low-effect,’’ categorically excluded, cumulative effects to environmental National Environmental Policy Act. To under the National Environmental values or resources. make this determination, we used our Policy Act (NEPA; 42 U.S.C. 4231 et environmental action statement and Next Steps seq.). To make this determination, we low-effect screening form, both of which used our environmental action The Service will evaluate the are also available for public review. statement and low-effect screening form, application and the comments received DATES: We must receive your written both of which are also available for to determine whether to issue the comments on or before June 15, 2020. public review. requested permit. We will also conduct ADDRESSES: Project an intra-Service consultation pursuant Obtaining Documents: You may The applicant requests a 5-year ITP to to section 7 of the ESA to evaluate the obtain copies of the documents online take sand skinks through the conversion effects of the proposed take. After in Docket No. FWS–R4–ES–2020–0036 of approximately 17 acres (ac) of considering the above findings, we will at http://www.regulations.gov. Submitting Comments: If you wish to occupied sand skink foraging and determine whether the permit issuance submit comments on any of the sheltering habitat incidental to the criteria of section 10(a)(1)(B) of the ESA documents, you may do so in writing by construction of a residential subdivision have been met. If met, the Service will any of the following methods: located on a 110.7-ac parcel in Section issue ITP number TE 62775D–0 to VK • Online: http://www.regulations.gov. 13, Township 24 South, Range 26 East, Avalon Groves LLC. Follow the instructions for submitting Orange County, Florida, identified by Authority comments on Docket No. FWS–R4–ES– Parcel ID number 13–24–26–0001–000– 2020–0036. 00200. The applicant proposes to The Service provides this notice • U.S. Mail: Public Comments mitigate for take of the sand skinks by under section 10(c) (16 U.S.C. 1539(c)) Processing, Attn: Docket No. FWS–R4– the purchase of 34 credits from Lake of the ESA and NEPA regulation 40 CFR ES–2020–0036; U.S. Fish and Wildlife Wales Ridge Conservation Bank or 1506.6. Service, MS: PRB/3W, 5275 Leesburg another Service-approved Conservation Pike, Falls Church, VA 22041–3803. Bank. The Service would require the Jay Herrington, applicant to purchase the credits prior Field Supervisor, Jacksonville Field Office. FOR FURTHER INFORMATION CONTACT: Erin to engaging in activities associated with M. Gawera, by telephone at (904) 731– [FR Doc. 2020–10400 Filed 5–14–20; 8:45 am] _ the project on the parcel. 3121 or via email at erin gawera@ BILLING CODE 4333–15–P fws.gov. Individuals who are hearing or Public Availability of Comments speech impaired may call the Federal Before including your address, phone Relay Service at 1–800–877–8339 for number, email address, or other TTY assistance. personal identifying information in your SUPPLEMENTARY INFORMATION: We, the comment, be aware that your entire Fish and Wildlife Service (Service), comment, including your personal announce receipt of an application from identifying information, may be made Asma & Asma for an incidental take

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permit (ITP) under the Endangered low effect under our NEPA regulations application, which includes the Species Act of 1973, as amended (ESA; at 43 CFR 46.205 and 46.210. A low- applicant’s proposed habitat 16 U.S.C. 1531 et seq.). The applicant effect HCP is one that would result in conservation plan (HCP), and the requests the ITP to take the federally (1) minor or negligible effects on Service’s preliminary determination that listed sand skink (Neoseps reynoldsi) federally listed, proposed, and this HCP qualifies as ‘‘low-effect,’’ incidental to the construction of a candidate species and their habitats; (2) categorically excluded, under the housing development (project) in Lake minor or negligible effects on other National Environmental Policy Act. To County, Florida. We request public environmental values or resources; and, make this determination, we used our comment on the application, which (3) impacts that, when considered environmental action statement and includes the applicant’s proposed together with the impacts of other past, low-effect screening form, both of which habitat conservation plan (HCP), and on present, and reasonably foreseeable are also available for public review. the Service’s preliminary determination similarly situated projects, would not DATES: We must receive your written that this HCP qualifies as ‘‘low-effect,’’ over time result in significant comments on or before June 15, 2020. categorically excluded, under the cumulative effects to environmental ADDRESSES: Obtaining Documents: You National Environmental Policy Act values or resources. may obtain copies of the documents (NEPA; 42 U.S.C. 4231 et seq.). To make Next Steps online in Docket No. FWS–R4–ES– this determination, we used our 2020–0038 at http:// environmental action statement and The Service will evaluate the application and the comments received www.regulations.gov. low-effect screening form, both of which Submitting Comments: If you wish to to determine whether to issue the are also available for public review. submit comments on any of the requested permit. We will also conduct documents, you may do so in writing by Project an intra-Service consultation pursuant The applicant requests a 5-year ITP to any of the following methods: to section 7 of the ESA to evaluate the • Online: http://www.regulations.gov. take sand skinks through the conversion effects of the proposed take. After Follow the instructions for submitting of approximately 1.73 acres (ac) of considering the above findings, we will comments on Docket No. FWS–R4–ES– occupied sand skink foraging and determine whether the permit issuance 2020–0038. sheltering habitat incidental to the criteria of section 10(a)(1)(B) of the ESA • U.S. Mail: Public Comments construction of a housing development have been met. If met, the Service will Processing, Attn: Docket No. FWS–R4– located on a 110.7-ac parcel in Section issue ITP number TE 62782D–0 to Asma ES–2020–0038; U.S. Fish and Wildlife 1, 6, and 12, Township 23 South, Range & Asma. Service, MS: PRB/3W, 5275 Leesburg 26 and 27 East, Lake County, Florida, Pike, Falls Church, VA 22041–3803. identified by Parcel ID numbers 01–32– Authority 26–0004–00600, 12–23–26–0001–00200, The Service provides this notice FOR FURTHER INFORMATION CONTACT: Erin under section 10(c) (16 U.S.C. 1539(c)) M. Gawera, by telephone at (904) 731– 12–23–26–0001–00400, 12–23–26– _ 0001–00500, and 12–23–26–0001– of the ESA and NEPA regulation 40 CFR 3121 or via email at erin gawera@ 00600. The applicant proposes to 1506.6. fws.gov. Individuals who are hearing or speech impaired may call the Federal mitigate for take of the sand skinks by Jay Herrington, the purchase of 3.46 credits from Lake Relay Service at 1–800–877–8339 for Field Supervisor, Jacksonville Field Office. Wales Ridge Conservation Bank or TTY assistance. another Service-approved conservation [FR Doc. 2020–10399 Filed 5–14–20; 8:45 am] SUPPLEMENTARY INFORMATION: We, the bank. The Service would require the BILLING CODE 4333–15–P Fish and Wildlife Service (Service), applicant to purchase the credits prior announce receipt of an application from Michael Collard Properties, Inc. for an to engaging in activities associated with DEPARTMENT OF THE INTERIOR the project on the parcel. incidental take permit (ITP) under the Fish and Wildlife Service Endangered Species Act of 1973, as Public Availability of Comments amended (ESA; 16 U.S.C. 1531 et seq.). Before including your address, phone [Docket No. FWS–R4–ES–2020–0038; The applicant requests the ITP to take number, email address, or other FXES11130400000EA–123–FF04EF1000] the federally listed sand skink (Neoseps personal identifying information in your reynoldsi) incidental to the construction Receipt of Incidental Take Permit comment, be aware that your entire of a residential subdivision (project) in Application and Proposed Habitat comment, including your personal Lake County, Florida. We request public Conservation Plan for the Sand Skink, identifying information, may be made comment on the application, which Lake County, FL; Categorical available to the public. While you may includes the applicant’s proposed Exclusion request that we withhold your personal habitat conservation plan (HCP), and on identifying information, we cannot AGENCY: Fish and Wildlife Service, the Service’s preliminary determination guarantee that we will be able to do so. Interior. that this HCP qualifies as ‘‘low-effect,’’ categorically excluded, under the Our Preliminary Determination ACTION: Notice of availability; request for comment and information. National Environmental Policy Act The Service has made a preliminary (NEPA; 42 U.S.C. 4231 et seq.). To make determination that the applicant’s SUMMARY: We, the Fish and Wildlife this determination, we used our project, including land clearing, Service (Service), announce receipt of environmental action statement and infrastructure building, landscaping, an application from Michael Collard low-effect screening form, both of which and the proposed mitigation measures, Properties Inc. (applicant) for an are also available for public review. would individually and cumulatively incidental take permit (ITP) under the have a minor or negligible effect on sand Endangered Species Act. The applicant Project skinks and the environment. Therefore, requests the ITP to take the federally The applicant requests a 10-year ITP we have preliminarily concluded that listed sand skink incidental to to take sand skinks through the the ITP for this project would qualify for construction in Lake County, Florida. conversion of approximately 0.34 acres categorical exclusion and the HCP is We request public comment on the (ac) of occupied sand skink foraging and

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sheltering habitat incidental to the issue ITP number TE 62785D–0 to Native American Graves Protection and construction of a residential subdivision Michael Collard Properties, Inc. Repatriation Act (NAGPRA), 25 U.S.C. located on a 13.19-ac parcel in Section 3003, of the completion of an inventory Authority 6, Township 20 South, Range 26 East, of human remains and associated Lake County, Florida, identified by the The Service provides this notice funerary objects under the control of Lake County Property Appraiser as under section 10(c) (16 U.S.C. 1539(c)) Columbus State University, Columbus, Alternate Keys 3022548, 1114501, and of the ESA and NEPA regulation 40 CFR GA. The human remains and associated 1028698. The applicant proposes to 1506.6. funerary objects were removed from the mitigate for take of the sand skinks by Jay Herrington, Abercrombie Site (1RU61), Phenix City, the purchase of 0.68 credits from Lake AL. Field Supervisor, Jacksonville Field Office. Livingston Conservation Bank or This notice is published as part of the another Service-approved Conservation [FR Doc. 2020–10397 Filed 5–14–20; 8:45 am] National Park Service’s administrative Bank. The Service would require the BILLING CODE 4333–15–P responsibilities under NAGPRA, 25 applicant to purchase the credits prior U.S.C. 3003(d)(3). The determinations in to engaging in activities associated with this notice are the sole responsibility of DEPARTMENT OF THE INTERIOR the project on the parcel. the museum, institution, or Federal National Park Service agency that has control of the Native Public Availability of Comments American human remains and Before including your address, phone [NPS–WASO–NAGPRA–NPS0029958; associated funerary objects. The number, email address, or other PPWOCRADN0–PCU00RP14.R50000] National Park Service is not responsible personal identifying information in your for the determinations in this notice. comment, be aware that your entire Notice of Inventory Completion: comment, including your personal Columbus State University, Columbus, Consultation identifying information, may be made GA A detailed assessment of the human available to the public. While you may AGENCY: National Park Service, Interior. remains was made by Columbus State University professional staff in request that we withhold your personal ACTION: Notice. identifying information, we cannot consultation with representatives of the guarantee that we will be able to do so. SUMMARY: Columbus State University Alabama-Coushatta Tribe of Texas (previously listed as the Alabama- Our Preliminary Determination has completed an inventory of human remains and associated funerary objects, Coushatta Tribes of Texas); Alabama- The Service has made a preliminary in consultation with the appropriate Quassarte Tribal Town; Cherokee determination that the applicant’s Indian Tribes or Native Hawaiian Nation; Eastern Band of Cherokee project, including land clearing, organizations, and has determined that Indians; Kialegee Tribal Town; infrastructure building, landscaping, there is a cultural affiliation between the Mississippi Band of Choctaw Indians; and the proposed mitigation measures, human remains and associated funerary Poarch Band of Creeks (previously listed would individually and cumulatively objects and present-day Indian Tribes or as the Poarch Band of Creek Indians of have a minor or negligible effect on sand Native Hawaiian organizations. Lineal Alabama); Seminole Tribe of Florida skinks and the environment. Therefore, descendants or representatives of any (previously listed as the Seminole Tribe we have preliminarily concluded that Indian Tribe or Native Hawaiian of Florida (Dania, Big Cypress, Brighton, the ITP for this project would qualify for organization not identified in this notice Hollywood & Tampa Reservations)); The categorical exclusion and the HCP is that wish to request transfer of control Chickasaw Nation; The Muscogee low effect under our NEPA regulations of these human remains and associated (Creek) Nation; The Seminole Nation of at 43 CFR 46.205 and 46.210. A low- funerary objects should submit a written Oklahoma; Thlopthlocco Tribal Town; effect HCP is one that would result in request to Columbus State University. If and the United Keetoowah Band of (1) minor or negligible effects on no additional requestors come forward, Cherokee Indians (hereafter referred to federally listed, proposed, and transfer of control of the human remains as ‘‘The Tribes’’). candidate species and their habitats; (2) and associated funerary objects to the History and Description of the Remains minor or negligible effects on other lineal descendants, Indian Tribes, or environmental values or resources; and, Native Hawaiian organizations stated in Between 1957 and 1983, human (3) impacts that, when considered this notice may proceed. remains representing, at minimum, 28 individuals were removed from the together with the impacts of other past, DATES: Lineal descendants or present, and reasonably foreseeable Abercrombie site (1RU61) in Phenix representatives of any Indian Tribe or City, AL. In the fall of 2016, the similarly situated projects, would not Native Hawaiian organization not over time result in significant collection was loaned to Fort Benning identified in this notice that wish to by the Columbus Museum for the cumulative effects to environmental request transfer of control of these values or resources. purpose of a display to be created by human remains and associated funerary Fort Benning and displayed at the Next Steps objects should submit a written request Columbus Museum. While the The Service will evaluate the with information in support of the collection was in the possession of Fort application and the comments received request to Columbus State University at Benning, human remains were to determine whether to issue the the address in this notice by June 15, identified. In the spring of 2017, Fort requested permit. We will also conduct 2020. Benning, the Columbus Museum, and an intra-Service consultation pursuant ADDRESSES: Danielle Cook, Columbus Columbus State University (CSU) agreed to section 7 of the ESA to evaluate the State University, 4225 University that ownership of the collection should effects of the proposed take. After Avenue, Columbus, GA 31907, be transferred to Columbus State considering the above findings, we will telephone (706) 507–8063, email cook_ University. CSU identified 28 determine whether the permit issuance [email protected]. individuals and 798 associated funerary criteria of section 10(a)(1)(B) of the ESA SUPPLEMENTARY INFORMATION: Notice is objects. The 798 associated funerary have been met. If met, the Service will hereby given in accordance with the objects are five glass beads, 33 whelk

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shell beads, 28 shell fragments, one DEPARTMENT OF THE INTERIOR Consultation whelk shell gorget, 689 ceramic A detailed assessment of the human National Park Service fragments, 27 pieces of daub, one quartz remains was made by the Pueblo Grande fragment, two copper fragments, five [NPS–WASO–NAGPRA–NPS0029959; Museum professional staff in lithic fragments, one historic metal, two PPWOCRADN0–PCU00RP14.R50000] consultation with representatives of the floral fragments, one clay ball, and three Fort McDowell Yavapai Nation, complete pottery vessels. Notice of Inventory Completion: Arizona; Gila River Indian Community In the 17th century, the area in which Pueblo Grande Museum, Phoenix, AZ of the Gila River Indian Reservation, site 1RU61 is located was called the AGENCY: National Park Service, Interior. Arizona; Hopi Tribe of Arizona; Salt Province of Apalachicoli by the River Pima-Maricopa Indian ACTION: Notice. Spanish. The area is believed to have Community of the Salt River been occupied by Hitchiti speakers until SUMMARY: The Pueblo Grande Museum Reservation, Arizona; Yavapai-Apache the late 17th century, when Muskhogee has completed an inventory of human Nation of the Camp Verde Indian speakers also known as the Lower remains, in consultation with the Reservation, Arizona; Yavapai-Prescott Creek—occupied the area. Both the appropriate Indian Tribes or Native Indian Tribe (previously listed as the Hitchiti and the Lower Creek are related Hawaiian organizations, and has Yavapai-Prescott Tribe of the Yavapai to The Tribes. determined that there is a cultural Reservation, Arizona); and the Zuni Determinations Made by Columbus affiliation between the human remains Tribe of the Zuni Reservation, New State University and present-day Indian Tribes or Native Mexico. Hawaiian organizations. Lineal History and Description of the Remains Officials of Columbus State University descendants or representatives of any have determined that: Indian Tribe or Native Hawaiian Sometime prior to 1960, human • Pursuant to 25 U.S.C. 3001(9), the organization not identified in this notice remains representing, at minimum, six human remains described in this notice that wish to request transfer of control individuals were removed by Fred represent the physical remains of 28 of these human remains should submit Eldean from an unidentified site near individuals of Native American a written request to the Pueblo Grande Brown Springs, which is located about ancestry. Museum. If no additional requestors 18 miles from Camp Verde in Yavapai • come forward, transfer of control of the County, AZ. The ownership of the land Pursuant to 25 U.S.C. 3001(3)(A), from which the individuals were the 798 objects described in this notice human remains to the lineal descendants, Indian Tribes, or Native removed is unclear. Around 1960, the are reasonably believed to have been human remains were transferred to the placed with or near individual human Hawaiian organizations stated in this notice may proceed. Pueblo Grande Museum where they remains at the time of death or later as have remained. The human remains are DATES: part of the death rite or ceremony. Lineal descendants or partial or fragmentary, and belong to an • Pursuant to 25 U.S.C. 3001(2), there representatives of any Indian Tribe or adult female 50–59 years old, three is a relationship of shared group Native Hawaiian organization not children between the ages of one and 10 identity that can be reasonably traced identified in this notice that wish to years old, and two perinatal or pre-term between the Native American human request transfer of control of these infants. No known individuals were remains and associated funerary objects human remains should submit a written identified. The two associated funerary and The Tribes. request with information in support of objects are one bone awl and one the request to the Pueblo Grande Additional Requestors and Disposition Deadman’s black-on-red dipper. Museum at the address in this notice by Sometime prior to 1967, human June 15, 2020. Lineal descendants or representatives remains representing, at minimum, one of any Indian Tribe or Native Hawaiian ADDRESSES: Lindsey Vogel-Teeter, individual were removed by Robert organization not identified in this notice Pueblo Grande Museum, 4619 E Wright from an unidentified site 30–35 that wish to request transfer of control Washington Street, Phoenix, AZ 85034, miles south of Flagstaff in Coconino, of these human remains and associated telephone (602) 534–1572, email Yavapai or Gila County, AZ. The funerary objects should submit a written [email protected]. ownership of the land from which the request with information in support of SUPPLEMENTARY INFORMATION: Notice is individuals were removed is unclear. the request to Danielle Cook, Columbus here given in accordance with the Around 1967, the human remains were State University, 226 Jordan Hall, Native American Graves Protection and transferred to the Pueblo Grande Columbus, GA 31907, telephone (857) Repatriation Act (NAGPRA), 25 U.S.C. Museum. The human remains are 930–3002. Email cook_danielle@ 3003, of the completion of an inventory complete, and belong to a young adult columbusstate.edu, by June 15, 2020. of human remains under the control of male. No known individuals were After that date, if no additional the Pueblo Grande Museum, Phoenix, identified. No associated funerary requestors have come forward, transfer AZ. The human remains were removed objects are present. of control of the human remains and from Coconino, Yavapai or Gila County, The Ak-Chin Indian Community associated funerary objects to The AZ. (previously listed as the Ak Chin Indian Tribes may proceed. This notice is published as part of the Community of the Maricopa (Ak Chin) Columbus State University is National Park Service’s administrative Indian Reservation, Arizona); Gila River responsible for notifying The Tribes that responsibilities under NAGPRA, 25 Indian Community of the Gila River this notice has been published. U.S.C. 3003(d)(3). The determinations in Indian Reservation, Arizona; Salt River this notice are the sole responsibility of Pima-Maricopa Indian Community of Dated: February 28, 2020. the museum, institution, or Federal the Salt River Reservation, Arizona; and Melanie O’Brien, agency that has control of the Native the Tohono O’Odham Nation of Arizona Manager, National NAGPRA Program. American human remains. The National comprise one cultural group known as [FR Doc. 2020–10433 Filed 5–14–20; 8:45 am] Park Service is not responsible for the the O’Odham. The material culture BILLING CODE 4312–52–P determinations in this notice. found within the Sinagua archeological

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cultural area (where the human remains Indian Tribe (previously listed as the FOR FURTHER INFORMATION CONTACT: To and associated funerary objects listed in Yavapai-Prescott Tribe of the Yavapai request additional information about this notice were found) demonstrates Reservation, Arizona); and the Zuni this ICR, contact Elizabeth Vehmeyer by continuity between the earlier people Tribe of the Zuni Reservation, New email at [email protected], and the present-day O’Odham. Mexico (hereafter referred to as ‘‘The or by telephone at 202–354–2215. The Fort McDowell Yavapai Nation, Tribes’’). Individuals who are hearing or speech Arizona; Yavapai-Apache Nation of the impaired may call the Federal Relay Additional Requestors and Disposition Camp Verde Indian Reservation, Service at 1–800–877–8339 for TTY Arizona; and the Yavapai-Prescott Lineal descendants or representatives assistance. You may also view the ICR Indian Tribe (previously listed as the of any Indian Tribe or Native Hawaiian at http://www.reginfo.gov/public/do/ Yavapai-Prescott Tribe of the Yavapai organization not identified in this notice PRAMain. Reservation, Arizona) comprise one that wish to request transfer of control SUPPLEMENTARY INFORMATION: In cultural group known as the Yavapai. of these human remains should submit They trace their ancestry to bands once accordance with the Paperwork a written request with information in Reduction Act of 1995 (PRA, 44 U.S.C. living in the Sinagua archeological support of the request to Lindsey Vogel- cultural area. 3501 et seq.) and 5 CFR 1320.8(d)(1), all Teeter, Pueblo Grande Museum, 4619 E. information collections require approval The Hopi Tribe of Arizona considers Washington Street, Phoenix, AZ 85034, all of Arizona to be within traditional under the PRA. We may not conduct or telephone (602) 534–1572, email sponsor and you are not required to Hopi lands or within areas where Hopi [email protected], by clans migrated in the past. Oral respond to a collection of information June 15, 2020. After that date, if no unless it displays a currently valid OMB traditions and material culture, additional requestors have come including pottery traditions, control number. forward, transfer of control of the As part of our continuing effort to demonstrate continuity between the human remains to The Tribes may Sinagua archeological culture and the reduce paperwork and respondent proceed. burdens, we invite the public and other Hopi people. The Pueblo Grande Museum is The Zuni Tribe of the Zuni Federal agencies to comment on new, responsible for notifying The Tribes that proposed, revised, and continuing Reservation, New Mexico, considers the this notice has been published. Verde Valley to be within the migration collections of information. This helps us path of ancestral Zuni people. Dated: February 28, 2020. assess the impact of our information Archeological evidence, including Melanie O’Brien, collection requirements and minimize similarities in ceramic designs, Manager, National NAGPRA Program. the public’s reporting burden. It also demonstrates continuity between the [FR Doc. 2020–10432 Filed 5–14–20; 8:45 am] helps the public understand our prehistoric people of the Sinagua BILLING CODE 4312–52–P information collection requirements and archeological cultural area and the provide the requested data in the people of Zuni. desired format. DEPARTMENT OF THE INTERIOR We are especially interested in public Determinations Made by the Pueblo comment addressing the following: Grande Museum National Park Service (1) Whether or not the collection of Officials of the Pueblo Grande information is necessary for the proper Museum have determined that: [NPS–WASO–CR–NHAP–NPS0029854; performance of the functions of the • Pursuant to 25 U.S.C. 3001(9), the PPWOCRADI0, PCU00RP14.R50000 (200); agency, including whether or not the human remains described in this notice OMB Control Number 1024–NEW] information will have practical utility; represent the physical remains of seven (2) The accuracy of our estimate of the individuals of Native American Agency Information Collection burden for this collection of ancestry. Activities; National Heritage Areas information, including the validity of • Pursuant to 25 U.S.C. 3001(3)(A), Program Annual Reporting Forms the methodology and assumptions used; the two objects described in this notice (3) Ways to enhance the quality, AGENCY: National Park Service, Interior. are reasonably believed to have been utility, and clarity of the information to placed with or near individual human ACTION: Notice of Information be collected; and remains at the time of death or later as Collection; request for comment. (4) How might the agency minimize part of the death rite or ceremony. the burden of the collection of SUMMARY: In accordance with the • Pursuant to 25 U.S.C. 3001(2), there information on those who are to Paperwork Reduction Act of 1995, we, is a relationship of shared group respond, including through the use of the National Park Service (NPS) are identity that can be reasonably traced appropriate automated, electronic, proposing a new information collection. between the Native American human mechanical, or other technological remains and the Ak-Chin Indian DATES: Interested persons are invited to collection techniques or other forms of Community (previously listed as the Ak submit comments on or before July 14, information technology, e.g., permitting Chin Indian Community of the 2020. electronic submission of response. Maricopa (Ak Chin) Indian Reservation, ADDRESSES: Send your comments on Comments that you submit in Arizona); Fort McDowell Yavapai this information collection request (ICR) response to this notice are a matter of Nation, Arizona; Gila River Indian by mail to Phadrea Ponds, Acting public record. We will include or Community of the Gila River Indian Information Collection Clearance summarize each comment in our request Reservation, Arizona; Hopi Tribe of Officer, National Park Service, 1201 to OMB to approve this ICR. Before Arizona; Salt River Pima-Maricopa Oakridge Drive Fort Collins, CO 80525; including your address, phone number, Indian Community of the Salt River or by email to [email protected]. email address, or other personal Reservation, Arizona; Tohono O’Odham Please reference Office of Management identifying information in your Nation of Arizona; Yavapai-Apache and Budget (OMB) Control Number comment, you should be aware that Nation of the Camp Verde Indian 1024–NHA in the subject line of your your entire comment—including your Reservation, Arizona; Yavapai-Prescott comments. personal identifying information—may

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be made publicly available at any time. Frequency of Collection: Annually. [email protected]. Hearing impaired While you can ask us in your comment Total Estimated Annual Nonhour individuals are advised to withhold your personal identifying Burden Cost: None. that information on this matter can be information from public review, we An agency may not conduct or obtained by contacting the cannot guarantee that we will be able to sponsor and a person is not required to Commission’s TDD terminal on (202) do so. respond to a collection of information 205–1810. Persons with mobility Abstract: National Heritage Areas unless it displays a currently valid OMB impairments who will need special (NHAs) are designated by Congress as control number. assistance in gaining access to the places of natural, cultural, and historic The authority for this action is the Commission should contact the Office significance. Authorized by the Historic Paperwork Reduction Act of 1995 (44 of the Secretary at (202) 205–2000. Sites Act of 1935 (54 U.S.C. Ch. 3201), U.S.C. 3501 et seq.). General information concerning the the NPS NHA Program Office is Phadrea Ponds, Commission may also be obtained by responsible for tracking the performance Acting Information Collection Clearance accessing its internet server at https:// and progress of each heritage area in Officer, National Park Service. www.usitc.gov. implementing its management plans [FR Doc. 2020–10482 Filed 5–14–20; 8:45 am] FOR FURTHER INFORMATION CONTACT: and goals. The reporting forms in the BILLING CODE 4312–52–P Pathenia Proctor, Office of Unfair collection will track performance Import Investigations, U.S. International metrics needed to distribute funds and Trade Commission, telephone (202) report on heritage area management and 205–2560. budgetary activities as directed by INTERNATIONAL TRADE SUPPLEMENTARY INFORMATION: Congress. COMMISSION Authority: The authority for NHAs combine conservation, [Investigation No. 337–TA–1199] institution of this investigation is recreation, and economic development contained in section 337 of the Tariff to form a cohesive, nationally important Certain Tobacco Heating Articles and Act of 1930, as amended, 19 U.S.C. landscape. The NHA program currently Components Thereof; Institution of 1337, and in section 210.10 of the includes 49 heritage areas. To track the Investigation Commission’s Rules of Practice and performance of each NHA and facilitate AGENCY: U.S. International Trade Procedure, 19 CFR 210.10 (2019). mandated financial reporting, the NPS Commission. Scope of Investigation: Having is requesting to use the two reporting ACTION: considered the complaint, the U.S. forms listed below to collect Notice. International Trade Commission, on information used to monitor the SUMMARY: Notice is hereby given that a May 11, 2020, Ordered That— progress of each heritage area. complaint was filed with the U.S. (1) Pursuant to subsection (b) of • Annual Program Report—Part I International Trade Commission on section 337 of the Tariff Act of 1930, as Funding Report: This form is used to April 9, 2020, under section 337 of the amended, an investigation be instituted allocate Heritage Partnership Program Tariff Act of 1930, as amended, on to determine whether there is a (HPP) funds and prepare the annual behalf of RAI Strategic Holdings, Inc. of violation of subsection (a)(1)(B) of NPS Budget Justification in response to Winston-Salem, North Carolina, R.J. section 337 in the importation into the directives from Congress. The Reynolds Vapor Company of Winston- United States, the sale for importation, information gathered includes required Salem, North Carolina, and R.J. or the sale within the United States after non-federal match sources; Reynolds Tobacco Company of importation of certain products organizational sustainability planning; Winston-Salem, North Carolina. A letter identified in paragraph (2) by reason of Heritage Area accomplishments and any supplementing the complaint was filed infringement of one or more of claim 19 challenges using the HPP funds. on April 16, 2020. The complaint of the ’238 patent; claims 27–30 of the • Annual Program Report—Part II alleges violations of section 337 based ’123 patent; and claims 1, 2, and 5 of the Progress Report: This form tracks upon the importation into the United ’915 patent; and whether an industry in progress and informs individual States, the sale for importation, and the the United States exists as required by heritage area evaluations. sale within the United States after subsection (a)(2) of section 337; Title of Collection: National Heritage importation of certain tobacco heating Areas Program Annual Reporting Forms. (2) Pursuant to section 210.10(b)(1) of articles and components thereof by the Commission’s Rules of Practice and OMB Control Number: 1024–NEW. reason of infringement of certain claims Form Number: None. Procedure, 19 CFR 210.10(b)(1), the Type of Review: New. of U.S. Patent No. 9,839,238 (‘‘the ’238 plain language description of the Respondents/Affected Public: NHA patent’’); U.S. Patent No. 9,901,123 (‘‘the accused products or category of accused Coordinating Entities (Not-for-profit ’123 patent’’); and U.S. Patent No. products, which defines the scope of the entities; Federal Commissions; 9,930,915 (‘‘the ’915 patent’’). The investigation, is ‘‘electric tobacco Institutions of Higher Education; State complaint further alleges that an heating device systems and the and local governments). industry in the United States exists as associated tobacco sticks sold for use Total Estimated Number of Annual required by the applicable Federal with the device systems’’; Respondents: 49. Statute. The complainant requests that (3) Pursuant to Commission Rule Total Estimated Number of Annual the Commission institute an 210.50(b)(l), 19 CFR 210.50(b)(1), the Responses: 108. investigation and, after the presiding administrative law judge shall Estimated Completion Time per investigation, issue a limited exclusion take evidence or other information and Response: Part I Funding Report—10 order and cease and desist orders. hear arguments from the parties or other hours and Part II Progress Report—40 ADDRESSES: The complaint, except for interested persons with respect to the hours. any confidential information contained public interest in this investigation, as Total Estimated Number of Annual therein, may be viewed on the appropriate, and provide the Burden Hours: 2,700 hours. Commission’s electronic docket (EDIS) Commission with findings of fact and a Respondent’s Obligation: Required to at https://edis.usitc.gov. For help recommended determination on this obtain or retain a benefit. accessing EDIS, please email issue, which shall be limited to the

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statutory public interest factors set forth the respondent, to find the facts to be as group response was inadequate. The in 19 U.S.C. l337(d)(l), (f)(1), (g)(1); alleged in the complaint and this notice Commission did not find any other (4) For the purpose of the and to enter an initial determination circumstances that would warrant investigation so instituted, the following and a final determination containing conducting full reviews.1 Accordingly, are hereby named as parties upon which such findings, and may result in the the Commission determined that it this notice of investigation shall be issuance of an exclusion order or a cease would conduct expedited reviews served: and desist order or both directed against pursuant to section 751(c)(3) of the (a) The complainants are: the respondent. Tariff Act of 1930 (19 U.S.C. 1675(c)(3)). RAI Strategic Holdings, Inc., 401 North By order of the Commission. For further information concerning the conduct of these reviews and rules Main Street, Winston-Salem, NC Issued: May 11, 2020. of general application, consult the 27101 Lisa Barton, R.J. Reynolds Vapor Company, 401 Commission’s Rules of Practice and Secretary to the Commission. North Main Street, Winston-Salem, Procedure, part 201, subparts A and B NC 27101 [FR Doc. 2020–10422 Filed 5–14–20; 8:45 am] (19 CFR part 201), and part 207, R.J. Reynolds Tobacco Company, 401 BILLING CODE 7020–02–P subparts A, D, E, and F (19 CFR part North Main Street, Winston-Salem, 207). Please note the Secretary’s Office will NC 27101 INTERNATIONAL TRADE (b) The respondents are the following accept only electronic filings at this COMMISSION entities alleged to be in violation of time. Filings must be made through the section 337, and are the parties upon [Investigation Nos. 701–TA–512 and 731– Commission’s Electronic Document which the complaint is to be served: TA–1248 (Review)] Information System (EDIS, https:// edis.usitc.gov). No in-person paper- Altria Client Services LLC, 6601 W. Carbon Steel Wire Rod From China; based filings or paper copies of any Broad Street, Richmond, VA 23230 Scheduling of Expedited Five-Year electronic filings will be accepted until Altria Group, Inc., 6601 W. Broad Street, Reviews further notice. Richmond, VA 23230 Staff report.—A staff report Philip Morris USA, Inc., 6601 W. Broad AGENCY: United States International containing information concerning the Street, Richmond, VA 23230 Trade Commission. subject matter of the reviews will be Philip Morris International Inc., 120 ACTION: Notice. placed in the nonpublic record on May Park Avenue, New York, NY 10017 15, 2020, and made available to persons Philip Morris Products S.A., Quai SUMMARY: The Commission hereby gives on the Administrative Protective Order Jeanrenaud 3, 2000 Neuchaˆtel, notice of the scheduling of expedited service list for these reviews. A public Switzerland reviews pursuant to the Tariff Act of 1930 (‘‘the Act’’) to determine whether version will be issued thereafter, (c) The Office of Unfair Import revocation of the antidumping duty pursuant to section 207.62(d)(4) of the Investigations, U.S. International Trade order and countervailing duty order on Commission’s rules. Commission, 500 E Street SW, Suite Written submissions.—As provided in carbon steel wire rod from China would 401, Washington, DC 20436; and section 207.62(d) of the Commission’s be likely to lead to continuation or (5) For the investigation so instituted, rules, interested parties that are parties recurrence of material injury within a the Chief Administrative Law Judge, to the reviews and that have provided reasonably foreseeable time. U.S. International Trade Commission, individually adequate responses to the shall designate the presiding DATES: March 6, 2020. notice of institution,2 and any party Administrative Law Judge. FOR FURTHER INFORMATION CONTACT: other than an interested party to the Responses to the complaint and the Hugh Smachlo (202–205–3289), Office reviews may file written comments with notice of investigation must be of Investigations, U.S. International the Secretary on what determination the submitted by the named respondents in Trade Commission, 500 E Street SW, Commission should reach in the accordance with section 210.13 of the Washington, DC 20436. Hearing- reviews. Comments are due on or before Commission’s Rules of Practice and impaired persons can obtain May 20, 2020 and may not contain new Procedure, 19 CFR 210.13. Pursuant to information on this matter by contacting factual information. Any person that is 19 CFR. 201.16(e) and 210.13(a), as the Commission’s TDD terminal on 202– neither a party to the five-year reviews amended in 85 FR 15798 (March 19, 205–1810. Persons with mobility nor an interested party may submit a 2020), such responses will be impairments who will need special brief written statement (which shall not considered by the Commission if assistance in gaining access to the contain any new factual information) received not later than 20 days after the Commission should contact the Office pertinent to the review by May 20, 2020. date of service by the Commission of the of the Secretary at 202–205–2000. However, should the Department of complaint and the notice of General information concerning the Commerce (‘‘Commerce’’) extend the investigation. Extensions of time for Commission may also be obtained by time limit for its completion of the final submitting responses to the complaint accessing its internet server (https:// results of its reviews, the deadline for and the notice of investigation will not www.usitc.gov). The public record for comments (which may not contain new be granted unless good cause therefor is these reviews may be viewed on the shown. Commission’s electronic docket (EDIS) 1 A record of the Commissioners’ votes, the Failure of a respondent to file a timely at https://edis.usitc.gov. Commission’s statement on adequacy, and any response to each allegation in the SUPPLEMENTARY INFORMATION: individual Commissioner’s statements will be available from the Office of the Secretary and at the complaint and in this notice may be Background.—On March 6, 2020, the Commission’s website. deemed to constitute a waiver of the Commission determined that the 2 The Commission has found the joint response right to appear and contest the domestic interested party group submitted by Charter Steel, Commercial Metals allegations of the complaint and this response to its notice of institution (84 Company, EVRAZ Rocky Mountain Steel, Liberty Steel USA, Nucor Corporation, and Optimus Steel notice, and to authorize the FR 66007, December 2, 2019) of the LLC, to be individually adequate. Comments from administrative law judge and the subject five-year reviews was adequate other interested parties will not be accepted (see 19 Commission, without further notice to and that the respondent interested party CFR 207.62(d)(2)).

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factual information) on Commerce’s Harmonized Tariff Schedule of the restrictions on access to the Commission final results is three business days after United States, that are alleged to be sold building due to the COVID–19 the issuance of Commerce’s results. If in the United States at less than fair pandemic, the Commission conducted comments contain business proprietary value (‘‘LTFV’’) and to be subsidized by its conference through written information (BPI), they must conform the government of China.2 questions, submissions of opening with the requirements of sections 201.6, Commencement of Final Phase remarks and written testimony, written 207.3, and 207.7 of the Commission’s Investigations responses to questions, and rules. The Commission’s rules with postconference briefs. All persons who respect to filing were revised effective Pursuant to section 207.18 of the requested the opportunity were July 25, 2014. See 79 FR 35920 (June 25, Commission’s rules, the Commission permitted to participate. 2014). The Commission’s Handbook on also gives notice of the commencement The Commission made these Filing Procedures, available on the of the final phase of its investigations. determinations pursuant to sections Commission’s website at https:// The Commission will issue a final phase 703(a) and 733(a) of the Act (19 U.S.C. www.usitc.gov/documents/handbook_ notice of scheduling, which will be 1671b(a) and 1673b(a)). It completed on_filing_procedures.pdf, elaborates published in the Federal Register as and filed its determinations in these upon the Commission’s procedures with provided in section 207.21 of the investigations on May 11, 2020. The respect to filings. Commission’s rules, upon notice from views of the Commission are contained In accordance with sections 201.16(c) the U.S. Department of Commerce in USITC Publication 5057 (May 2020), and 207.3 of the rules, each document (‘‘Commerce’’) of affirmative entitled Non-Refillable Steel Cylinders filed by a party to the reviews must be preliminary determinations in the from China: Investigation Nos. 701–TA– served on all other parties to the reviews investigations under sections 703(b) or 644 and 731–TA–1494 (Preliminary). (as identified by either the public or BPI 733(b) of the Act, or, if the preliminary determinations are negative, upon By order of the Commission. service list), and a certificate of service Issued: May 11, 2020. notice of affirmative final must be timely filed. The Secretary will Lisa Barton, not accept a document for filing without determinations in those investigations Secretary to the Commission. a certificate of service. under sections 705(a) or 735(a) of the Determination.—The Commission has Act. Parties that filed entries of [FR Doc. 2020–10420 Filed 5–14–20; 8:45 am] determined these reviews are appearance in the preliminary phase of BILLING CODE 7020–02–P extraordinarily complicated and the investigations need not enter a therefore has determined to exercise its separate appearance for the final phase authority to extend the review period by of the investigations. Industrial users, INTERNATIONAL TRADE up to 90 days pursuant to 19 U.S.C. and, if the merchandise under COMMISSION 1675(c)(5)(B). investigation is sold at the retail level, [Investigation No. 337–TA–1154] representative consumer organizations Authority: These reviews are being conducted under authority of title VII of the have the right to appear as parties in Certain Child Carriers and Tariff Act of 1930; this notice is published Commission antidumping and Components Thereof Commission pursuant to section 207.62 of the countervailing duty investigations. The Determination To Review in Part a Commission’s rules. Secretary will prepare a public service Final Initial Determination Finding No By order of the Commission. list containing the names and addresses Violation of Section 337; Termination Issued: May 12, 2020. of all persons, or their representatives, of the Investigation who are parties to the investigations. Lisa Barton, AGENCY: U.S. International Trade Secretary to the Commission. Background Commission. [FR Doc. 2020–10479 Filed 5–14–20; 8:45 am] On March 27, 2020, Worthington ACTION: Notice. BILLING CODE 7020–02–P Industries, Columbus, Ohio, filed SUMMARY: petitions with the Commission and Notice is hereby given that Commerce, alleging that an industry in the U.S. International Trade INTERNATIONAL TRADE the United States is materially injured Commission (the ‘‘Commission’’) has COMMISSION or threatened with material injury by determined to review in part, and on reason of subsidized and LTFV imports review, to affirm, the final initial [Investigation Nos. 701–TA–644 and 731– determination (‘‘FID’’) of the TA–1494 (Preliminary)] of non-refillable steel cylinders from China. Accordingly, effective March 27, administrative law judge (‘‘ALJ’’) Non-Refillable Steel Cylinders From 2020, the Commission instituted finding no violation of section 337 of China; Determinations countervailing duty investigation No. the Tariff Act of 1930, as amended (‘‘section 337’’), in connection with the On the basis of the record 1 developed 701–TA–644 and antidumping duty investigation No. 731–TA–1494 asserted patent. The investigation is in the subject investigations, the United terminated. States International Trade Commission (Preliminary). FOR FURTHER INFORMATION CONTACT: (‘‘Commission’’) determines, pursuant Notice of the institution of the to the Tariff Act of 1930 (‘‘the Act’’), Commission’s investigations and of a Lynde Herzbach, Office of the General that there is a reasonable indication that conference through written testimony to Counsel, U.S. International Trade an industry in the United States is be held in connection therewith was Commission, 500 E Street SW, materially injured by reason of imports given by posting copies of the notice in Washington, DC 20436, telephone (202) of non-refillable steel cylinders from the Office of the Secretary, U.S. 205–3228. Copies of non-confidential China, provided for in subheadings International Trade Commission, documents filed in connection with this 7310.29.00 and 7311.00.00 of the Washington, DC, and by publishing the investigation may be viewed on the notice in the Federal Register of April Commission’s electronic docket (EDIS) 1 The record is defined in sec. 207.2(f) of the 2, 2020 (85 FR 18587). In light of the at https://edis.usitc.gov. For help Commission’s Rules of Practice and Procedure (19 accessing EDIS, please email CFR 207.2(f)). 2 85 FR 22402 and 85 FR 22407 (April 22, 2020). [email protected]. General

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information concerning the Commission The Commission terminated eleven for review of the FID. On March 31, may also be obtained by accessing its participating respondents from the 2020, OUII filed a response to Active internet server at https://www.usitc.gov. investigation based upon settlement or Respondents’ petition. LILLEbaby did Hearing-impaired persons are advised consent order. Order No. 12 (May 30, not file a petition for review or a that information on this matter can be 2019), not rev’d, Notice (June 18, 2019); response to Respondents’ petition, thus obtained by contacting the Order No. 17 (July 18, 2019), not rev’d, abandoning all issues decided adversely Commission’s TDD terminal, telephone Notice (Aug. 12, 2019); Order No. 18 to it. See 19 CFR 210.43(b)(4). 202–205–1810. (July 18, 2019), not rev’d, Notice (Aug. Having reviewed the record of this SUPPLEMENTARY INFORMATION: The 12, 2019); Order No. 21 (Aug. 13, 2019), investigation, including the FID and Commission instituted this investigation not rev’d, Notice (Sept. 13, 2019); Order on April 10, 2019, based on a complaint No. 22 (Aug. 23, 2019), not rev’d, Notice Respondents’ contingent petition, the filed by LILLEbaby LLC of Golden, (Sept. 17, 2019); Order No. 23 (Aug. 29, Commission has determined to review Colorado (‘‘LILLEbaby’’). 84 FR 14393– 2019), not rev’d, Notice (Sept. 17, 2019); the FID in part. Specifically, the 94 (April 10, 2019). The complaint Order No. 25 (Sept. 6, 2019), not rev’d, Commission has determined to review alleges violations of section 337 of the Notice (Oct. 1, 2019); Order No. 33 and, on review, take no position Tariff Act of 1930, as amended (19 (Nov. 9, 2019), not rev’d, Notice (Dec. regarding the FID’s finding that claim 18 U.S.C. 1337), in the importation into the 18, 2019). The Commission found ten of the ’116 patent is not obvious based United States, in the sale for non-participating Defaulting on the prior art Hibiscus Carrier (RPX– importation, or the sale within the Respondents in default. Order No. 38 0006) alone or in combination with the United States after importation of (Dec. 3, 2019), not rev’d, Notice (Dec. prior art Pikkolo Carrier (RPX–0005) or certain child carriers and components 20, 2019). For one non-participating U.S. Patent Publ. No. 2005/0051582 thereof, by reason of the infringement of respondent, Mingrui, the ALJ denied (RX–0368) to Frost. The Commission certain claims of U.S. Patent Nos. LILLEbaby’s motion to show cause as to has also determined to review, and on 8,172,116 (‘‘the ’116 patent’’) and why that respondent should not be held review, take no position on the FID’s in default due to LILLEbaby’s failure to 8,424,732 (‘‘the ’732 patent’’). Id. The findings that claim 18 of the ’116 patent show adequate service. Order No. 29 notice of investigation names twenty- is unenforceable for inequitable conduct seven respondents, including The Ergo (Oct. 28, 2019). On January 30, 2020, LILLEbaby filed during prosecution of the patent Baby Carrier Inc. of Los Angeles, CA application. Further, the Commission (‘‘Ergo’’); Blue Box OpCo LLC d/b/a a motion to terminate respondents has determined to review, and on Infantino of San Diego, CA Jonobaby and ByKay on the basis of review, take no position on the FID’s (‘‘Infantino’’); Baby Tula LLC a/k/a New settlement. The subject FID grants the Baby Tula LLC of San Diego, CA (‘‘Baby pending motion. See FID. The findings that LILLEbaby has satisfied Tula’’); BabyBjorn AB of Lanna, Sweden remaining respondents are Baby Tula, the economic prong of the domestic and BabyBjorn Inc. of New York, NY; Ergo, Infantino (collectively, ‘‘Active industry requirement with respect to the BabySwede LLC of Cleveland, OH; Boba Respondents’’), and Mingrui. ’116 patent under subsections Inc. d/b/a Beco Baby Carrier of Boulder, The Commission terminated the ’732 337(a)(3)(B) and (C) (19 U.S.C. CO; ByKay BV of Wijchen, The patent from the investigation as to all 1337(a)(3)(B), (C)). The Commission has Netherlands (‘‘ByKay’’); Artsana USA, respondents based on LILLEbaby’s determined not to review the remainder Inc. f/k/a Chicco USA Inc. of Lancaster, partial withdrawal of the complaint. of the FID. Order No. 39 (Dec. 4, 2019), not rev’d, PA; Cybex GmbH of Bayreuth, Germany; Accordingly, the Commission finds Columbus Trading Partners USA, Inc. of Notice (Dec. 20, 2019). The Commission also terminated claims 1, 2, 5–7, 9, 11, no violation of section 337 based on the Boston, MA; Jonobaby Babytragen of FID’s findings that Active Respondents Potsdam, Germany (‘‘Jonobaby’’); 14–16, 19, 20, 23, 24, and 25 of the ’116 do not infringe claim 18 of the ’116 Mountain Buggy USA a/k/a Phil & Teds patent as to all respondents based on USA Inc. of Fort Collins, CO; Stokke AS LILLEbaby’s partial withdrawal of the patent, and claim 18 of the ’116 patent of Alesund, Norway and Stokke LLC of complaint. Order No. 31 (Nov. 12, is invalid as anticipated by and obvious Stamford, CT; Quanzhou Mingrui Bags 2019), not rev’d, Notice (Dec. 10, 2019); in view of U.S. Patent No. 4,986,458 to Co. Ltd. of Quanzhou, China Order No. 41 (Dec. 18, 2019), not rev’d, Linday. (‘‘Mingrui’’); Britax Child Safety, Inc. of Notice (Jan. 16, 2020). Claim 18 of the, The investigation is terminated. Fort Mill, SC; and Wuxi Kangarouse ’116 patent remains at issue. The Commission vote for these Trading Co. Ltd. Enterprises d/b/a On November 6, 2019, Active Kangarouse of Wuxi, China; Kokadi Respondents filed a motion to terminate determinations took place on May 11, GmbH & Co. KG of Munich, Germany; the investigation for alleged lack of 2020. Minimonkey BV of Amsterdam, The standing by LILLEbaby. The authority for the Commission’s Netherlands; Soul US Inc. of Bangalore, On March 10, 2020, the ALJ issued determination is contained in section India; Isara, Deneris Trade SRL of the subject FID finding no violation of 337 of the Tariff Act of 1930, as Floresti, Romania; Lenny Lamb Sp. section 337 with respect to the ’116 amended, 19 U.S.C. 1337, and in Part Zo.o. Sp. K of Warsaw, Poland; patent. See FID. The subject FID denies 210 of the Commission’s Rules of L’Echarpe Porte Bonheur, Inc. d/b/a Active Respondents’ motion to Practice and Procedure, 19 CFR part Chimparoo of Boucherville, Canada; terminate for alleged lack of standing. 210. Tingtao Sunveno Co., Ltd. of Shandong, See id. at 28. The subject FID also China; Jing Jiang Dimarco Packaging & includes the ALJ’s recommendations By order of the Commission. Gifts Co. of Jingjiang Jiangsu, China; and that, if a violation was found, then the Issued: May 11, 2020. Jiangsu Matrix Textile Co., Ltd. of Commission should issue a limited Lisa Barton, Jingjiang, Jiangsu, China (collectively, exclusion order and cease and desist Secretary to the Commission. orders as to Active Respondents. ‘‘Defaulting Respondents’’). Id. The [FR Doc. 2020–10419 Filed 5–14–20; 8:45 am] Office of Unfair Import Investigations On March 23, 2020, Active (‘‘OUII’’) is also named as a party. Id. Respondents filed a contingent petition BILLING CODE 7020–02–P

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DEPARTMENT OF JUSTICE DEPARTMENT OF JUSTICE evidence rooms and/or digital evidence. An independent response should be Drug Enforcement Administration Office of Justice Programs submitted for each product that [OJP (NIJ) Docket No. 1778] respondents would like CJTEC to [Docket No. DEA–630] consider in their landscape report. NIJ Physical and Digital Management encourages respondents to provide Importer of Controlled Substances Software Products Market Survey information in common file formats, Application: Restek Corporation such as Microsoft Word, pdf, or plain AGENCY: National Institute of Justice text. Each response should include (NIJ), Office of Justice Programs, Justice. ACTION: Notice of application. contact information. ACTION: Notice of request for Usage: Information provided in information. response to this request may be DATES: Registered bulk manufacturer of published in a landscape study on SUMMARY: The National Institute of the affected basic class(es), and physical and digital evidence Justice (NIJ) is soliciting information for applicants therefore, may file written management software products. use in an upcoming Criminal Justice comments on or objections to the Information categories: Comments are Testing and Evaluation Consortium issuance of the proposed registration on invited with regard to the market (CJTEC) report tentatively titled, ‘‘A or before June 15, 2020. Such persons survey, including which categories of Landscape Report of Physical and may also file a written request for a information are appropriate for Digital Management Software hearing on the application on or before comparison, as well as promotional Products.’’ The report will identify June 15, 2020. material (e.g., slick sheet) and print- software and web-based technologies quality photographs of the technology. ADDRESSES: Written comments should that are commercially available to At a minimum, CJTEC intends to be sent to: Drug Enforcement manage physical evidence and/or digital include the following categories of Administration, Attention: DEA Federal evidence, such as photos or videos. This information for each technology that document will assist law enforcement Register Representative/DPW, 8701 may be of use to law enforcement agencies in making informed decisions Morrissette Drive, Springfield, Virginia officials: 22152. All requests for a hearing must for purchasing and implementing be sent to: Drug Enforcement software systems to manage and track 1. Vendor Information Administration, Attn: Administrator, physical evidence and/or digital a. Full name of company 8701 Morrissette Drive, Springfield, evidence. b. Contact information of technical contact for software products Virginia 22152. All requests for a DATES: Emailed responses must be c. Website URL hearing should also be sent to: (1) Drug received (and mailed responses d. Years the company has been in business Enforcement Administration, Attn: postmarked) by 5:00 p.m. Eastern Time e. Number and types of customers served Hearing Clerk/OALJ, 8701 Morrissette on June 29, 2020. (e.g., municipal, county, or state Drive, Springfield, Virginia 22152; and ADDRESSES: Responses to this request agencies) (2) Drug Enforcement Administration, may be submitted electronically by f. Picture or photograph of software Attn: DEA Federal Register email to Emily Vernon at product(s) g. Vendor logo Representative/DPW, 8701 Morrissette [email protected] with the subject line ‘‘Physical and Digital h. Description of product(s) (300 words or Drive, Springfield, Virginia 22152. less) Management Software Technologies SUPPLEMENTARY INFORMATION: In Federal Register Response.’’ Responses 2. Product Information accordance with 21 CFR 1301.34(a), this may also be sent by mail to the a. Software Offering(s): is notice that on March 23, 2020, Restek following address: Criminal Justice i. Please describe your suite of software Corporation, 110 Benner Circle, Testing and Evaluation Consortium products, including but not limited to: Bellefonte, Pennsylvania 16823, applied (CJTEC), ATTN: Emily Vernon, Physical PEMS, laboratory information to be registered as an importer of the and Digital Management Software management systems, digital evidence following basic class(es) of controlled Technologies Federal Register Response, management systems, sexual assault kit tracking, etc. substances: RTI International, P.O. Box 12194, 3040 ii. Is your PEMS a module of an existing E Cornwallis Road, Research Triangle system or a standalone software? Drug Park, NC 27709–2194. iii. Do you have a digital evidence Controlled substance code Schedule FOR FURTHER INFORMATION CONTACT: For management system (DEMS) software offering? Tetrahydrocannabinols ... 7370 I more information on this market survey, please contact Rebecca Shute (CJTEC) iv. Is your DEMS software offering a by telephone at 724–544–4129 or module of an existing system or a The company plans to import the standalone system? [email protected]. For more information on b. Technical Specifications of Evidence listed controlled substance in bulk for the NIJ CJTEC, visit https://nij.ojp.gov/ manufacture of analytical reference Management Offering funding/awards/2018-75-cx-k003 and i. What are the key differentiators of your material which, in its final form, is an view the description, or contact Steven software compared to competitors’ exempted product. Schuetz (NIJ) by telephone at 202–514– products? ii. How does your software manage William T. McDermott, 7663 or at [email protected]. Please note that these are not toll-free evidence disposition? What is the Assistant Administrator. telephone numbers. evidence disposition protocol? [FR Doc. 2020–10465 Filed 5–14–20; 8:45 am] iii. Does your software have a query SUPPLEMENTARY INFORMATION: BILLING CODE 4410–09–P functionality to search and categorize Information sought: Specific product evidence? and company information for software iv. Does your software have a dashboard products that help law enforcement function? If so, please describe manage evidence in their property and functionalities.

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v. Can your software integrate with other f. Financial Information (check all that apply FOR FURTHER INFORMATION CONTACT: information management systems (i.e. for your software and provide estimate Director, Office of Child Labor, Forced integration with Record Management costs if applicable. Please indicate what Labor, and Human Trafficking, Bureau System (RMS) or Laboratory Information the cost model—e.g., per user, bulk Management System (LIMS))? Please list pricing). Please note that we will not of International Labor Affairs, U.S. relevant systems and methods of share specific pricing, but allow users to Department of Labor at (202) 693–4843 integration (e.g., APIs) roughly compare across pricing ranges. (this is not a toll-free number). vi. What features are customizable? i. b Base software cost (lll USD) Individuals with hearing or speech (Customizability refers to changing the ii. b Up-front license cost (lll USD) impairments may access the telephone software programming, which may be iii. b Per-user license cost (lll USD) number above via TTY by calling the done by the vendor or an in-house IT iv. b Additional module costs Federal Information Relay Service at 1– professional.) (lll USD) 877–889–5627. vii. What features are configurable? v. b Maintenance costs (lllUSD) Information may be submitted by the (Configurability refers to changing fields vi. b IT/Troubleshooting costs within the setup of the system without following methods: (lllUSD) • changing the programming, which is b Training costs (lllUSD) Facsimile (fax): ILAB/Office of done by the end user.) Child Labor, Forced Labor, and Human viii. What data transfer capabilities does 3. Use Cases Trafficking at (202) 693–4830. your software offer? a. Approximate number of products sold to • Mail, Express Delivery, Hand ix. Is there an upper limit to the amount law enforcement (if available) Delivery, and Messenger Service: Austin of data (e.g., information about discrete b. Names and contact information (phone pieces of evidence) that can be stored in Pederson at U.S. Department of Labor, and email) for end users who have ILAB/Office of Child Labor, Forced this program? If so, please describe these implemented the product in casework (if parameters. available) Labor, and Human Trafficking, 200 x. Setup of system Constitution Ave. NW, Room S–5317, 1. What is the base model and David B. Muhlhausen, Washington, DC 20210. functionalities offered by the company? Director, National Institute of Justice. • Email: [email protected]. 2. What additional modules are available [FR Doc. 2020–10416 Filed 5–14–20; 8:45 am] for purchase? SUPPLEMENTARY INFORMATION: DOL is xi. What kind of mobile capabilities does BILLING CODE 4410–20–P making no substantive changes to the your program have (e.g., mobile scanner Guidelines; rather, the change is or uploading capabilities). technical in nature. Through this notice, xii. What access control measures does DEPARTMENT OF LABOR DOL incorporates an amendment to the your product provide between users of Department’s mandate for the the system? Notice of Amendment to Procedural development and maintenance of the xiii. What kind of audit trail capabilities Guidelines for the Development and does your product offer? List set forth in the Frederick Douglass Maintenance of the List of Goods Trafficking Victims Prevention and c. Technical Specifications of PEMS Offering Produced by Child Labor or Forced i. What barcode scanners are compatible Protection Reauthorization Act of 2018, with your product? Labor Public Law 115–425, title I, § 133(a), ii. What complementary hardware AGENCY: Bureau of International Labor Jan. 8 2019, 132 State. 5481. This 2018 accessories are available with this Affairs, United States Department of Act directs that the List include, ‘‘to the software? Please note all available Labor. extent practicable, goods that are hardware accessories, and whether they produced with inputs that are produced come standard or at additional cost. ACTION: Notice of amendment to d. Technical Specifications of DEMS Offering procedural guidelines for the with forced labor or child labor.’’ i. What types of files can be uploaded and development and maintenance of a list Section 105(b)(1) of the Trafficking stored on the DEMS product or module? of goods produced by child labor or Victims Protection Reauthorization Act ii. What data and metadata are stored in forced labor in violation of international of 2005 (‘‘TVPRA of 2005’’), Public Law the DEMS? standards. 109–164 (2006), directed the Secretary iii. What editing or enhancement of Labor, acting through the Bureau of capabilities does the software have? SUMMARY: The U.S. Department of International Labor Affairs, to ‘‘carry out iv. Are original files preserved when Labor’s Bureau of International Labor additional activities to monitor and content is edited (e.g., cropped photos) Affairs (‘‘ILAB’’) amends a provision of v. Does the product ensure authenticity of combat forced labor and child labor in the content? its procedural guidelines (‘‘Guidelines’’) foreign countries as described in vi. Are there photo comparison capabilities for the development and maintenance of paragraph (2).’’ Section 105(b)(2)(C) of offered by the software? a list of goods from countries that ILAB the TVPRA, 22 U.S.C. 7112(b)(2)(C), vii. Can users download content to has reason to believe are produced by directed the Department to ‘‘[d]evelop physical hard copies (e.g., external child labor or forced labor in violation and make available to the public a list drives)? of international standards (‘‘List’’). The of goods from countries that the Bureau viii. Does your software offer digital Guidelines establish the process for the of International Labor Affairs has reason signature capabilities? public submission of information and to believe are produced by forced labor e. Operating Information the evaluation and reporting process to i. Operating system required for use or child labor in violation of ii. Type of application (e.g., web-based or be used by the U.S. Department of international standards.’’ desktop application) Labor’s (‘‘DOL or Department’’) Office of The Office carries out the iii. Does your software have a cloud-based Child Labor, Forced Labor, and Human Department’s responsibilities in the application? Trafficking (‘‘Office’’) in ILAB in TVPRA of 2005, as amended. Pursuant iv. Servers and other IT requirements maintaining and updating the List. DOL to this mandate, DOL published in the v. Technical support offered is required to develop and make Federal Register a set of procedural vi. Training offered available to the public the List pursuant guidelines that ILAB follows in the vii. Frequency of software updates to the Trafficking Victims Protection viii. Last known software release date development and maintenance of the ix. Other systems required for use (e.g., Reauthorization Act of 2005. List. 72 FR 73374 (Dec. 27, 2007). The hardware requirements or supporting DATES: This notice is effective on May Frederick Douglass Trafficking Victims software packages) 15, 2020. Prevention and Protection

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Reauthorization Act of 2018, Public Law that are produced with inputs that are will ordinarily not weigh in favor of a 115–425, title I, § 133(a), Jan. 8 2019, produced with forced labor or child finding that a good is produced in 132 State. 5481, expanded the scope of labor.’’ No other revisions have been violation of international standards. the Department’s mandate for the made. Information that demonstrates a development and maintenance of the significant incidence of child labor or Final Procedural Guidelines List. Pursuant to this law, the List must forced labor in the production of a also include, ‘‘to the extent practicable, A. Sources of Information and Factors particular good(s), although not goods that are produced with inputs Considered in the Development and necessarily representing a pattern or that are produced with forced labor or Maintenance of the List practice in the industry as a whole, will child labor.’’ Accordingly, the ordinarily weigh in favor of a finding The Office will make use of all Department is amending the Guidelines that a good is produced in violation of relevant information, whether gathered to incorporate this new mandate. international standards. through research, public submissions of Though the Guidelines were initially In determining which goods and information, a public hearing, adopted after offering the public an countries are to be placed on the List, interagency consultations, or other opportunity to submit comments, the the Office will, as appropriate, take into means, in developing the List. In the Department is not seeking comment on consideration the stages in the chain of interest of maintaining a transparent this amendment because it merely a good’s production. To the extent process, the Office will not accept incorporates the recent changes to the practicable, the List will include goods classified information in developing the statute. Cf Mack Trucks, Inc. v. EPA, 682 that are produced with inputs that are F.3d 87, 94 (D.C. Cir. 2012) (notice and List. The Office may request that any produced with forced labor or child comment rulemaking under the such information brought to its attention labor. If child labor or forced labor was Administrative Procedure Act is not be declassified. If submissions contain used in both the production or necessary when ‘‘the administrative rule confidential or personal information, extraction of raw materials/component is a routine determination, insignificant the Office may redact such information articles and the manufacture or in nature and impact, and in accordance with applicable laws and processing of a final good, then both the inconsequential to the industry and to regulations before making the raw materials/component articles and the public.’’’); Gray Panthers Advocacy submission available to the public. the final good, and the country/ies in Comm. v. Sullivan, 936 F.2d 1284, In evaluating information, the Office which such labor was used, may be 1291–92 (D.C. Cir. 1991) (notice and will consider and weigh several factors, placed on the List. This is to ensure a comment rulemaking is not necessary including: direct correspondence between the when changes to the regulation merely 1. Nature of information. Whether the goods and countries which appear on restate the changes in the enabling information about child labor or forced the List, and the use of child labor or legislation). labor gathered from research, public forced labor. The Office will evaluate all submissions, hearing testimony, or other Information on government, industry, information received according to the sources is relevant and probative, and or third-party actions and initiatives to processes outlined in these amended meets the definitions of child labor or combat child labor or forced labor will Guidelines. Goods that meet the criteria forced labor. be taken into consideration, although outlined in these amended Guidelines 2. Date of information. Whether the they are not necessarily sufficient in and will be placed on the List, published in information about child labor or forced of themselves to prevent a good and the Federal Register and on the DOL labor in the production of the good(s) is country from being listed. In evaluating website. no more than 7 years old at the time of such information, the Office will receipt. More current information will consider particularly relevant and Sections Revised generally be given priority, and probative any evidence of government, This notice makes only one technical information older than 7 years will industry, and third-party actions and revision to the Guidelines. In order to generally not be considered. initiatives that are effective in reflect the List’s mandate, as revised by 3. Source of information. Whether the significantly reducing if not eliminating the Frederick Douglass Trafficking information, either from primary or child labor and forced labor. Victims Prevention and Protection secondary sources, is from a source Goods and countries (‘‘entries’’) that Reauthorization Act of 2018, a revision whose methodology, prior publications, meet the criteria outlined in these to Section A of the Guidelines is degree of familiarity and experience procedural Guidelines will be placed on necessary. The Department therefore with international labor standards, and/ an initial List, to be published in the replaces the following sentences: or reputation for accuracy and Federal Register and on the DOL ‘‘Whether a good is placed on the List objectivity, warrants a determination website. This initial List will continue may depend on which stage of that it is relevant and probative. to be updated as additional information production used child labor or forced 4. Extent of corroboration. The extent becomes available. Before publication of labor. For example, if child labor or to which the information about the use the initial List or subsequent versions of forced labor was only used in the of child labor or forced labor in the the List, the Office will inform the extraction, harvesting, assembly, or production of a good(s) is corroborated relevant foreign governments of their production of raw materials or by other sources. presence on the List and request their component articles, and these materials 5. Significant incidence of child labor responses. The Office will review these or articles are subsequently used under or forced labor. Whether the information responses and make a determination as non-violative conditions in the about the use of child labor or forced to their relevance. The List, along with manufacture or processing of a final labor in the production of a good(s) a listing of the sources used to identify good, only the raw materials/component warrants a determination that the the goods and countries on it, will be articles and the country/ies where they incidence of such practices is significant published in the Federal Register and were extracted, harvested, assembled, or in the country in question. Information on the DOL website. The List will produced, as appropriate, may be placed that relates only to a single company or represent DOL’s conclusions based on on the List.’’ with ‘‘To the extent facility; or that indicates an isolated all relevant information available at the practicable, the List will include goods incident of child labor or forced labor, time of publication.

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For each entry, the List will indicate governments, and may hold a public not prejudice children’s attendance in whether the good is made using child hearing for the purpose of receiving school or their capacity to benefit from labor, forced labor, or both. As the List relevant information from interested the instruction received. continues to be maintained and persons. ‘‘Countries’’—‘‘Countries’’ means any updated, the List will also indicate the 6. In order for an entry to be removed foreign country or territory, including date when each entry was included. The from the List, any person filing any overseas dependent territory or List will not include any company or information regarding the entry must possession of a foreign country, or the individual names. DOL’s postings on its provide information that demonstrates Trust Territory of the Pacific Islands. website of source material used in that there is no significant incidence of ‘‘Forced Labor’’—‘‘Forced labor’’ identifying goods and countries on the child labor or forced labor in the under international standards means all List will be redacted to remove production of the particular good in the work or service which is exacted from company or individual names, and country in question. In evaluating any person under the menace of any other confidential material, pursuant to information on government, industry, or penalty for its nonperformance and for applicable laws and regulations. third-party actions and initiatives to which the worker does not offer himself combat child labor or forced labor, the voluntarily, and includes indentured B. Procedures for the Maintenance of Office will consider particularly the List labor. ‘‘Forced labor’’ includes work relevant and probative any available provided or obtained by force, fraud, or 1. Following publication of the initial evidence of government, industry, and coercion, including: (1) By threats of List, the Office will periodically review third-party actions that are effective in serious harm to, or physical restraint and update the List, as appropriate. The significantly reducing if not eliminating against any person; (2) by means of any Office conducts ongoing research and child labor and forced labor. scheme, plan, or pattern intended to monitoring of child labor and forced 7. Where the Office has made a labor, and if relevant information is determination concerning the addition, cause the person to believe that, if the obtained through such research, the maintenance, or removal of the entry person did not perform such labor or Office may add an entry to, or remove from the List, and where otherwise services, that person or another person an entry from the List using the process appropriate, the Office will publish an would suffer serious harm or physical described in Section A of the updated List in the Federal Register and restraint; or (3) by means of the abuse Guidelines. The Office may also update on the DOL website. or threatened abuse of law or the legal the List on the basis of public process. For purposes of this definition, C. Key Terms Used in the Guidelines information submissions, as detailed forced labor does not include work below. ‘‘Child Labor’’—‘‘Child labor’’ under specifically authorized by national laws 2. Any party may at any time file an international standards means all work where such work is carried out in information submission with the Office performed by a person below the age of accordance with conditions prescribed regarding the addition or removal of an 15. It also includes all work performed by the competent authority, including: entry from the List. Submitters should by a person below the age of 18 in the any work or service required by take note of the criteria and instructions following practices: (A) All forms of compulsory military service laws for in the ‘‘Information Requested on Child slavery or practices similar to slavery, work of a purely military character; Labor and Forced Labor’’ section of this such as the sale or trafficking of work or service which forms part of the notice, as well as the criteria listed in children, debt bondage and serfdom, or normal civic obligations of the citizens Section A of the Guidelines. forced or compulsory labor, including of a fully self-governing country; work 3. The Office will review any forced or compulsory recruitment of or service exacted from any person as a submission of information to determine children for use in armed conflict; (B) consequence of a conviction in a court whether it provides relevant and the use, procuring, or offering of a child of law, provided that the said work or probative information. for prostitution, for the production of service is carried out under the 4. The Office may consider a pornography or for pornographic supervision and control of a public submission less reliable if it determines purposes; (C) the use, procuring, or authority and that the said person is not that: The submission does not clearly offering of a child for illicit activities in hired to or placed at the disposal of indicate the source(s) of the information particular for the production and private individuals, companies or presented; the submission does not trafficking of drugs; and (D) work associations; work or service required in identify the party filing the submission which, by its nature or the cases of emergency, such as in the event or is not signed and dated; the circumstances in which it is carried out, of war or of a calamity or threatened submission does not provide relevant or is likely to harm the health, safety, or calamity, fire, flood, famine, earthquake, probative information; or, the morals of children. The work referred to violent epidemic or epizootic diseases, information is not within the scope of in subparagraph (D) is determined by invasion by animal, insect or vegetable the TVPRA and/or does not address the laws, regulations, or competent pests, and in general any circumstance child labor or forced labor as defined authority of the country involved, after that would endanger the existence or herein. All submissions received will be consultation with the organizations of the well-being of the whole or part of made available to the public on the DOL employers and workers concerned, and the population; and minor communal website, consistent with applicable laws taking into consideration relevant services of a kind which, being or regulations. international standards. This definition performed by the members of the 5. In evaluating a submission, the will not apply to work specifically community in the direct interest of the Office will conduct further examination authorized by national laws, including said community, can therefore be of available information relating to the work done by children in schools for considered as normal civic obligations good and country, as necessary, to assist general, vocational or technical incumbent upon the members of the the Office in making a determination education or in other training community, provided that the members concerning the addition or removal of institutions, where such work is carried of the community or their direct the good from the List. The Office will out in accordance with international representatives have the right to be undertake consultations with relevant standards under conditions prescribed consulted in regard to the need for such U.S. government agencies and foreign by the competent authority, and does services.

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‘‘Goods’’— ‘‘Goods’’ means goods, contacting the individual listed below Museums Empowered: Professional wares, articles, materials, items, in the ADDRESSES section of this notice. Development Opportunities for Museum supplies, and merchandise. DATES: Written comments must be Staff is a special initiative of the ‘‘Indentured Labor’’—‘‘Indentured submitted to the office listed in the FOR Museums for America grant program labor’’ means all labor undertaken FURTHER INFORMATION CONTACT section with the goal of strengthening the ability pursuant to a contract entered into by an below on or before June 13, 2020. of an individual museum to serve its employee the enforcement of which can OMB is particularly interested in public through professional be accompanied by process or penalties. comments that help the agency to: development activities that cross-cut ‘‘International Standards’’— • Evaluate whether the proposed various departments to generate ‘‘International standards’’ means collection of information is necessary systemic change within the museum. generally accepted international for the proper performance of the Museums need to be dynamic to standards relating to forced labor and functions of the agency, including respond to fast-evolving technological child labor, such as international whether the information will have advances and changing demographics. conventions and treaties. These practical utility; Museums also need to generate and Guidelines employ definitions of ‘‘child • Evaluate the accuracy of the share results that document the labor’’ and ‘‘forced labor’’ derived from agency’s estimate of the burden of the effectiveness of their work in addressing international standards. proposed collection of information, community problems. In addition, they ‘‘Produced’’—‘‘Produced’’ means including the validity of the need to develop sustainable mined, extracted, harvested, farmed, methodology and assumptions used; organizational structures and flexible produced, created, and manufactured. • Enhance the quality, utility, and strategies for long-term stability. Authority: 22 U.S.C. 7112(b)(2)(C) clarity of the information to be Professional development is critical for museums to deliver on these areas of Signed at Washington, DC, this 6th day of collected; and May 2020. • Minimize the burden of the need. Martha Newton, collection of information on those who IMLS encourages applicants to invest Deputy Undersecretary for International are to respond, including through the in the professional development of Affairs. use of appropriate automated, museum staff, leadership, and volunteers to enhance their skills and [FR Doc. 2020–10341 Filed 5–14–20; 8:45 am] electronic, mechanical, or other ensure the highest standards in all BILLING CODE 4510–28–P technological collection techniques or other forms of information technology aspects of museum operations. Potential (e.g., permitting electronic submission projects should involve multiple levels of responses). of staff and generate organizational NATIONAL FOUNDATION ON THE change. ARTS AND THE HUMANITIES ADDRESSES: Comments should be sent to Office of Information and Regulatory Your project should align with one of Institute of Museum and Library Affairs, Attn.: OMB Desk Officer for the following four categories: (1) Digital Services Education, Office of Management and Technology, (2) Diversity and Inclusion, Budget, Room 10235, Washington, DC (3) Evaluation, and (4) Organizational Submission for OMB Review, 20503, (202) 395–7316. Management. Comment Request, Proposed FOR FURTHER INFORMATION CONTACT: This action is to seek renewal Collection: ‘‘Museums Empowered: Mark Isaksen, Senior Museum Program clearance of the ‘‘Museums Empowered: Professional Development Officer, Institute of Museum and Library Professional Development Opportunities for Museum Staff’’ Services, 955 L’Enfant Plaza North SW, Opportunities for Museum Staff.’’ The 60-day was published in the Federal AGENCY: Institute of Museum and Suite 4000, Washington, DC 20024. Mr. Isaksen can be reached by telephone: Register on November 14, 2019 (FR vol. Library Services, National Foundation 84, No. 220, pgs. 61942–61943). There on the Arts and the Humanities. 202–653–4662; email: misaksen@ imls.gov or by or by teletype (TTY/TDD) were no public comments. ACTION: Submission for OMB review, for persons with hearing difficulty at Agency: Institute of Museum and comment request. 202–653–4614. Library Services. SUMMARY: The Institute of Museum and SUPPLEMENTARY INFORMATION: The Title: ‘‘Museums Empowered: Library Services (IMLS), as part of its Institute of Museum and Library Professional Development continuing effort to reduce paperwork Services is the primary source of federal Opportunities for Museum Staff.’’ and respondent burden, conducts a pre- support for the nation’s libraries and OMB Number: 3137–0107. clearance consultation program to museums. We advance, support, and Agency Number: 3137. provide the general public and federal empower America’s museums, libraries, Frequency: Annually. agencies with an opportunity to and related organizations through grant Affected Public: Museums that meet comment on proposed and/or making, research, and policy the IMLS Museums for America continuing collections of information in development. Our vision is a nation institutional eligibility criteria. accordance with the Paperwork where museums and libraries work Number of Respondents: 100. Reduction Act. This program helps to together to work together to transform Estimated Time per Respondent: 40 ensure that requested data can be the lives of individuals and hours. provided in the desired format, communities. To learn more, visit reporting burden (time and financial www.imls.gov. Total Burden Hours: 4,000. resources) is minimized, collection Current Actions: To administer a Total Annualized Cost to instruments are clearly understood, and special initiative in the Museums for Respondents: $112,480.00. the impact of collection requirements on America (MFA) grant program titled Total Annualized Capital/Startup respondents can be properly assessed. A Museums Empowered: Professional Costs: 0. copy of the proposed information Development Opportunities for Museum Total Annualized Cost to Federal collection request can be obtained by Staff. Government: $14,471.88.

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Dated: May 12, 2020. SUPPLEMENTARY INFORMATION: and Notice of Filing Materials Under Kim Miller, Seal; Filing Acceptance Date: May 11, Table of Contents Senior Grants Management Specialist, 2020; Filing Authority: 39 U.S.C. 3642, Institute of Museum and Library Services. I. Introduction 39 CFR 3040.130 et seq., and 39 CFR [FR Doc. 2020–10470 Filed 5–14–20; 8:45 am] II. Docketed Proceeding(s) 3035.105; Public Representative: BILLING CODE 7036–01–P I. Introduction Christopher C. Mohr; Comments Due: May 19, 2020. The Commission gives notice that the This Notice will be published in the Postal Service filed request(s) for the Federal Register. OFFICE OF PERSONNEL Commission to consider matters related MANAGEMENT to negotiated service agreement(s). The Erica A. Barker, Federal Prevailing Rate Advisory request(s) may propose the addition or Secretary. Committee; Cancellation of Upcoming removal of a negotiated service [FR Doc. 2020–10472 Filed 5–14–20; 8:45 am] agreement from the market dominant or Meeting BILLING CODE 7710–FW–P the competitive product list, or the AGENCY: Office of Personnel modification of an existing product Management. currently appearing on the market POSTAL REGULATORY COMMISSION ACTION: Notice. dominant or the competitive product list. [Docket No. MT2020–1; Order No. 5504] SUMMARY: The Federal Prevailing Rate Section II identifies the docket Market Test of Experimental Product Advisory Committee is issuing this number(s) associated with each Postal notice to cancel the May 21, 2020, Service request, the title of each Postal AGENCY: Postal Regulatory Commission. public meeting scheduled to be held in Service request, the request’s acceptance ACTION: Notice. Room 5A06A, Office of Personnel date, and the authority cited by the Management Building, 1900 E Street Postal Service for each request. For each SUMMARY: The Commission is noticing a NW, Washington, DC. The original request, the Commission appoints an recently filed Postal Service proposal to Federal Register notice announcing this officer of the Commission to represent conduct a market test of an meeting was published Monday, the interests of the general public in the experimental product called December 23, 2019. proceeding, pursuant to 39 U.S.C. 505 Commercial PO Box Redirect Service. FOR FURTHER INFORMATION CONTACT: (Public Representative). Section II also This notice informs the public of the Madeline Gonzalez, 202–606–2858, or establishes comment deadline(s) filing, invites public comment, and email [email protected]. pertaining to each request. takes other administrative steps. Office of Personnel Management. The public portions of the Postal DATES: Comments are due: May 21, Service’s request(s) can be accessed via Stephen Hickman, 2020. the Commission’s website (http:// Deputy Executive Secretary. www.prc.gov). Non-public portions of ADDRESSES: Submit comments [FR Doc. 2020–10457 Filed 5–14–20; 8:45 am] the Postal Service’s request(s), if any, electronically via the Commission’s BILLING CODE 6325–49–P can be accessed through compliance Filing Online system at http:// with the requirements of 39 CFR www.prc.gov. Those who cannot submit 3011.301.1 comments electronically should contact POSTAL REGULATORY COMMISSION The Commission invites comments on the person identified in the FOR FURTHER INFORMATION CONTACT section by [Docket Nos. MC2020–131 and CP2020–138] whether the Postal Service’s request(s) in the captioned docket(s) are consistent telephone for advice on filing New Postal Product with the policies of title 39. For alternatives. request(s) that the Postal Service states FOR FURTHER INFORMATION CONTACT: AGENCY: Postal Regulatory Commission. concern market dominant product(s), David A. Trissell, General Counsel, at ACTION: Notice. applicable statutory and regulatory 202–789–6820. SUMMARY: The Commission is noticing a requirements include 39 U.S.C. 3622, 39 SUPPLEMENTARY INFORMATION: U.S.C. 3642, 39 CFR part 3030, and 39 recent Postal Service filing for the Table of Contents Commission’s consideration concerning CFR part 3040, subpart B. For request(s) a negotiated service agreement. This that the Postal Service states concern I. Introduction notice informs the public of the filing, competitive product(s), applicable II. Background invites public comment, and takes other statutory and regulatory requirements III. Compliance With Legal Requirements administrative steps. include 39 U.S.C. 3632, 39 U.S.C. 3633, IV. Data Collection 39 U.S.C. 3642, 39 CFR part 3035, and V. Notice of Commission Action DATES: Comments are due: May 19, 39 CFR part 3040, subpart B. Comment VI. Ordering Paragraphs 2020. deadline(s) for each request appear in I. Introduction ADDRESSES: Submit comments section II. electronically via the Commission’s In accordance with 39 U.S.C. 3641 Filing Online system at http:// II. Docketed Proceeding(s) and 39 CFR part 3045, the Postal Service www.prc.gov. Those who cannot submit 1. Docket No(s).: MC2020–131 and filed notice of its intent to conduct a comments electronically should contact CP2020–138; Filing Title: USPS Request market test of an experimental product the person identified in the FOR FURTHER to Add Priority Mail Express, Priority called Commercial PO Box Redirect 1 INFORMATION CONTACT section by Mail & First-Class Package Service Service. Commercial PO Box Redirect telephone for advice on filing Contract 69 to Competitive Product List Service will redirect automated letters alternatives. during mail processing from the 1 FOR FURTHER INFORMATION CONTACT: See Docket No. RM2018–3, Order Adopting Final Rules Relating to Non-Public Information, 1 United States Postal Service Notice of Market David A. Trissell, General Counsel, at June 27, 2018, Attachment A at 19–22 (Order No. Test of Experimental Product—Commercial PO Box 202–789–6820. 4679). Redirect Service, May 8, 2020 (Notice).

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Commercial PO Box indicated on the for delivery to the forwarding address in 1. The Commission establishes Docket mailpiece to a second Commercial PO bulk. Id. at 4. The Postal Service asserts No. MT2020–1 to consider the matters Box. Notice at 2. The Postal Service that Commercial PO Box Redirect raised by the Notice. intends for the market test to run for two Service differs from temporary and 2. Pursuant to 39 U.S.C. 505, Richard full years beginning on June 8, 2020. Id. permanent Change of Address orders A. Oliver is appointed to serve as an at 3. because the new service is indefinite officer of the Commission to represent II. Background and uses ‘‘different operational the interests of the general public in processes to forward the pieces.’’ Id. these proceedings (Public On May 8, 2020, the Postal Service Second, the Postal Service asserts that Representative). filed the Notice proposing the Commercial PO Box Redirect Service 3. Comments are due no later than Commercial PO Box Redirect Service ‘‘will not create an unfair or otherwise May 21, 2020. market test. The Postal Service asserts inappropriate competitive advantage for 4. The Secretary shall arrange for that Commercial PO Box Redirect the Postal Service or any mailer’’ as publication of this order in the Federal Service will provide an efficient Register. solution for remittance mail processors, required by 39 U.S.C. 3641(b)(2). Id. at who receive and process payments 5. The Postal Service states that By the Commission. enclosed in Courtesy Reply Mail or Commercial PO Box Redirect Service Erica A. Barker, Business Reply Mail mailpieces on ‘‘retools the market dominant letter Secretary. processing network to create operational behalf of other businesses. Id. at 1. The [FR Doc. 2020–10385 Filed 5–14–20; 8:45 am] efficiencies prior to delivery, a domain Postal Service states that, if remittance BILLING CODE 7710–FW–P mail processors need to consolidate or in which the Postal Service does not close the facilities associated with the compete with other carriers.’’ Id. The Postal Service avers that, even if address on the mailpiece, they must POSTAL SERVICE currently use their own couriers to Commercial PO Box Redirect Service move the pieces, use an existing postal competes with existing after-delivery Privacy Act: Modified System of bulk forwarding service, or employ services, ‘‘the Postal Service cannot Records private carriers. Id. at 1–2. The reasonably be said to compete unfairly TM Commercial PO Box Redirect Service with these services unless the objective AGENCY: Postal Service . will redirect the mailpieces to the of section 3641(b)(2) is to discourage SUMMARY: The United States Postal TM TM forwarding address at the first efficiency gains in the Postal Service’s Service (USPS ) is proposing to opportunity during mail processing. Id. market dominant network.’’ Id. revise four General Privacy Act Systems at 2. Third, the Postal Service states that of Records (SOR). These changes are The Postal Service states that Commercial PO Box Redirect Service is being made to support the Commercial PO Box Redirect Service properly categorized as market administration of the USPS fleet card will only be available to customers who dominant as required by 39 U.S.C. program. use Caller Service with the PO Box to 3641(b)(3). Id. at 6. DATES: These revisions will become which the mailpieces will be redirected. IV. Data Collection effective without further notice on June Id. The service will only redirect 15, 2020, unless, in response to automation First-Class Mail letter To better understand the results of the comments received on or before that mailpieces. Id. market test, the Postal Service asserts date result in a contrary determination. The Postal Service plans to offer two that it will collect the following data on ADDRESSES: Comments may be mailed price points for Commercial PO Box a quarterly basis: Number of customers, or delivered to the Privacy and Records Redirect Service: $0.06 and $0.07. Id. volume of pieces redirected, and Management Office, United States The $0.06 price will be available to revenues. Id. The Postal Service also Postal Service, 475 L’Enfant Plaza SW, customers who certify that the service is states that it will collect data on the Room 1P830, Washington, DC 20260– essential to respond to a contingency, attributable costs of Commercial PO Box 1101. Copies of all written comments such as the COVID–19 pandemic, with Redirect Service, including will be available at this address for all other eligible customers receiving the administrative costs. Id. public inspection and photocopying $0.07 price. Id. V. Notice of Commission Action between 8 a.m. and 4 p.m., Monday III. Compliance With Legal through Friday. Requirements The Commission establishes Docket FOR FURTHER INFORMATION CONTACT: The Postal Service asserts that the No. MT2020–1 to consider matters Janine Castorina, Chief Privacy and proposed market test meets the raised by the Notice. The Commission Records Management Officer, Privacy requirements in 39 U.S.C. 3641 and 39 invites comments on whether the Postal and Records Management Office, 202– CFR part 3045. First, the Postal Service Service’s filing is consistent with the 268–3069 or [email protected]. requirements of 39 U.S.C. 3641 and 39 explains that Commercial PO Box SUPPLEMENTARY INFORMATION: This Redirect Service is ‘‘significantly CFR part 3045. Comments are due no notice is in accordance with the Privacy different from all products offered by later than May 21, 2020. The filing can Act requirement that agencies publish the Postal Service within the last two be accessed via the Commission’s their systems of records in the Federal years’’ as required by 39 U.S.C. website (http://www.prc.gov). Register when there is a revision, 3641(b)(1). Notice at 3. The Postal The Commission appoints Richard A. change, or addition, or when the agency Service states that Commercial PO Box Oliver to serve as an officer of the establishes a new system of records. Redirect Service is ‘‘critically different’’ Commission to represent the interests of The Postal Service has determined from the Premium Forwarding Service the general public in these proceedings that USPS General Privacy Act Systems Commercial option because those (Public Representative). of Records (SORs), 100.100 Recruiting, mailpieces are delivered and then VI. Ordering Paragraphs Examining, and Placement Records, repackaged and dispatched as Priority 100.400, Personnel Compensation and Mail Express or Priority Mail shipments It is ordered: Payroll Records, 100.500, Personnel

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Resource Management Records, and 3. To administer the USPS fleet card POLICIES OF PRACTICES FOR RETRIEVAL OF 500.100, Carrier and Vehicle Operator program used to purchase commercial RECORDS: Records should be revised to support fuel and oil, maintenance repair, By applicant or employee name, the administration of the USPS fleet polishing and washing, servicing, Social Security Number, Candidate card program that is used to purchase shuttling, and towing. Identification Number, Employee commercial fuel and oil, maintenance Identification Number, duty or pay repair, polishing and washing, CATEGORIES OF INDIVIDUALS COVERED BY THE location, or posting/vacancy to which servicing, shuttling, and towing SYSTEM: application was made, and Fleet Card services. Current and former USPS employees, Personal Identification Number (PIN). Pursuant to 5 U.S.C. 552a(e)(11), applicants for employment, and POLICIES AND PRACTICES FOR RETENTION AND interested persons are invited to submit potential applicants with candidate DISPOSAL OF RECORDS: written data, views, or arguments on profiles. this proposal. A report of the proposed 1. Pre-employment investigation revisions has been sent to Congress and CATEGORIES OF RECORDS IN THE SYSTEM: records are retained 10 years from the to the Office of Management and Budget 1. Applicant, potential applicants date the individual is initially found for their evaluations. The Postal Service with candidate profiles, and employee suitable for employment, or 10 years does not expect these amended systems information: Name(s), Social Security from the date action was taken to deny of records to have any adverse effect on Number(s), Candidate Identification or terminate employment. 2. Candidate information and individual privacy rights. Number, Employee Identification Candidate Identification Number are The notices for USPS SORs 100.100 Number, date(s) of birth, postal retained for a minimum of 2 years. Recruiting, Examining, and Placement assignment or vacancy/job posting Vacancy files, including applicant/ Records, 100.400, Personnel history information, work contact employee name, identification number, Compensation and Payroll Records, information, home address(es) and posting/vacancy number, and 100.500, Personnel Resource phone number(s), personal email information supplied by applicant/ Management Records, and 500.100, address, finance number(s), duty employee in response to the vacancy Carrier and Vehicle Operator Records, location, pay location, and Fuel provided below in their entirety, are as posting, are retained 5 years. Purchase Fleet Card Personal follows: Employment registers are retained 10 Identification Number (PIN). years. Certain forms related to a SYSTEM NAME AND NUMBER: 2. Pre-employment investigation successful applicant are filed in the USPS 100.100 Recruiting, Examining, information: Records compiled by electronic Official Personnel Folder as and Placement Records. USPS, including criminal, employment, permanent records. military, and driving records; drug SECURITY CLASSIFICATION: 3. Paper examining answer sheets are screening and medical assessment None. retained 6 months; and computer media results. Also includes Special Agency copies are retained 10 years. Scanned SYSTEM LOCATION: Check with Inquiries (SACI) and Maintenance Selection System forms are Pre-employment investigation records National Agency Check with Inquiry retained 10 years, and related hiring are located at USPS Human Resources (NACI): Investigative records requested lists are retained 5 years. (HR) offices and contractor locations, by USPS and compiled by the Office of 4. Records pertaining to the USPS fuel except for drug screening and medical Personnel Management (OPM) for newly fleet card purchase program are retained examination records, which are hired employees, including postal for 10 years. maintained in USPS medical facilities inspectors’ investigative reports. Records existing on paper are and designee offices. 3. Recruiting, examining, and destroyed by burning, pulping, or Recruiting, examining, and placement placement information: Records related shredding. Records existing on records are located at USPS HR offices, to candidate profiles, applications, test computer storage media are destroyed Headquarters, Human Resources Shared results, interview documentation, and according to the applicable USPS media Services Center, Integrated Business suitability screening. sanitization practice. Solutions Services Centers, the Bolger Center for Leadership Development, the RECORD SOURCE CATEGORIES: ADMINISTRATIVE, TECHNICAL, AND PHYSICAL National Center for Employee Applicants; potential applicants with SAFEGUARDS: Development, and contractor locations. candidate profiles; OPM; police, Paper records, computers, and driving, and military records; former computer storage media are located in SYSTEM MANAGER(S): employers and named references; controlled-access areas under Vice President, Employee Resource medical service providers; school supervision of program personnel. Management, United States Postal officials; other federal agencies; and Access to these areas is limited to Service, 475 L’Enfant Plaza SW, state divisions of vocational authorized personnel, who must be Washington, DC 20260. rehabilitation counselors. identified with a badge. Access to AUTHORITY FOR MAINTENANCE OF THE SYSTEM: records is limited to individuals whose ROUTINE USES OF RECORDS MAINTAINED IN THE official duties require such access. 39 U.S.C. 401, 410, 1001, 1005, and SYSTEM, INCLUDING CATEGORIES OF USERS AND 1206. Contractors and licensees are subject to PURPOSES OF SUCH USES: contract controls and unannounced on- PURPOSE(S) OF THE SYSTEM: Standard routine uses 1. through 9. site audits and inspections. Computers 1. To determine suitability for apply. are protected by mechanical locks, card employment. key systems, or other physical access 2. To provide managers, HR POLICIES AND PRACTICES FOR STORAGE OF control methods. The use of computer personnel, and medical officers with RECORDS: systems is regulated with installed information for recruiting and Automated database, computer security software, computer logon recommending appointment of qualified storage media, digital files, and paper identifications, and operating system individuals. files. controls including access controls,

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terminal and transaction logging, and AUTHORITY FOR MAINTENANCE OF THE SYSTEM: payments, deductions, compensation, file management software. 39 U.S.C. 401, 409, 410, 1001, 1003, and benefits; uniform items purchased; 1004, 1005, and 1206; and 29 U.S.C. proposals and decisions under RECORD ACCESS PROCEDURES: 2601 et seq. monetary awards; suggestion programs Requests for access must be made in and contests; injury compensation; accordance with the Notification PURPOSE(S) OF THE SYSTEM: monetary claims for personal property Procedure above and USPS Privacy Act 1. To support all necessary loss or damage; and garnishment of regulations regarding access to records compensation and payroll activities and wages. and verification of identity under 39 related management functions. CFR 266.6. 2. To generate lists of employee RECORD SOURCE CATEGORIES: information for home mailings, dues Employees; employees’ supervisor or CONTESTING RECORD PROCEDURES: membership, and other personnel manager; other systems of records; See Notification Procedure and support functions. claimants or their survivors or agents Record Access Procedures above. 3. To generate retirement eligibility who make monetary claims; witnesses; information and analysis of employees investigative sources; courts; and NOTIFICATION PROCEDURES: in various salary ranges. insurance companies. Individuals wanting to know if 4. To administer the purchase of information about them is maintained in ROUTINE USES OF RECORDS MAINTAINED IN THE uniforms. SYSTEM, INCLUDING CATEGORIES OF USERS AND this system must address inquiries to 5. To administer monetary awards PURPOSES OF SUCH USES: Human Resources Shared Services programs and employee contests. Standard routine uses 1. through 9. Center, P.O. Box 970400, Greensboro, 6. To detect improper payment related apply. In addition: NC 27497–0400. Inquiries must include to injury compensation claims. a. Records pertaining to financial full name, Candidate Identification 7. To adjudicate employee claims for institutions and to nonfederal insurance Number (as provided during the loss or damage to their personal carriers and benefits providers elected application process) or Employee property in connection with or incident by an employee may be disclosed for the Identification Number, name and to their postal duties. purposes of salary payment or address of facility where last employed, 8. To process garnishment of allotments, eligibility determination, and dates of USPS employment or date employee wages. claims, and payment of benefits. of application. 9. To support statistical research and b. Records pertaining to supervisors reporting. EXEMPTIONS PROMULGATED FOR THE SYSTEM and postmasters may be disclosed to : 10. To generate W–2 and 1095–C supervisory and other managerial None. information for use with external third organizations recognized by USPS. party tax preparation services at the HISTORY: c. Records pertaining to recipients of request of the individual employee. monetary awards may be disclosed to February 25, 2019, 84 FR 6022; July 11. To administer the USPS fleet card the news media when the information is 19, 2013, 78 FR 43247; June 17, 2011, program used to purchase commercial of news interest and consistent with the 76 FR 35483; April 29, 2005, 70 FR fuel and oil, maintenance repair, public’s right to know. 22516. polishing and washing, servicing, d. Disclosure of records about current shuttling, and towing. SYSTEM NAME AND NUMBER: or former Postal Service employees may USPS 100.400 Personnel CATEGORIES OF INDIVIDUALS COVERED BY THE be made to requesting states under an Compensation and Payroll Records. SYSTEM: approved computer matching program 1. Current and former USPS to determine employee participation in, SECURITY CLASSIFICATION: employees and postmaster relief/leave and eligibility under, unemployment None. replacement employees. insurance programs administered by the 2. Current and former employees’ states (and by those states to local SYSTEM LOCATION: family members, beneficiaries, and governments), to improve program USPS Area and District Human former spouses who apply and qualify integrity, and to collect debts and Resources offices, the Human Resources for benefits. overpayments owed to those Shared Services Center, Integrated 3. An agent or survivor of an governments and their components. Business Solutions Services Centers, employee who makes a claim for loss or e. Disclosure of records about current Computer Operations Services Centers, damage to personal property. or former Postal Service employees may Accounting Services Centers, other area be made to requesting federal agencies and district facilities, Headquarters, CATEGORIES OF RECORDS IN THE SYSTEM: or nonfederal entities under approved contractor sites, and all organizational 1. Employee and family member computer matching programs to make a units. information: Name(s), Social Security determination of employee participation Number(s), Employee Identification in, and eligibility under, particular SYSTEM MANAGER(S): Number, ACE ID, date(s) of birth, postal benefit programs administered by those Chief Human Resource Officer and assignment information, work contact agencies or entities or by USPS; to Executive Vice President, United States information, home address(es) and improve program integrity; to collect Postal Service, 475 L’Enfant Plaza SW, phone number(s), finance number(s), debts and overpayments owed under Washington, DC 20260. occupation code, occupation title, duty those programs and to provide Vice President, Employee Resource location, and pay location, and Fuel employees with due process rights prior Management, United States Postal Purchase Fleet Card Personal to initiating any salary offset; and to Service, 475 L’Enfant Plaza SW, Identification Number (PIN). identify those employees who are absent Washington, DC 20260. 2. Compensation and payroll parents owing child support obligations Vice President, Controller, United information: Records related to payroll, and to collect debts owed as a result. States Postal Service, 475 L’Enfant Plaza annual salary, hourly rate, Rate f. Disclosure of records about current SW, Washington, DC 20260. Schedule Code (RSC) or pay type, or former Postal Service employees may

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be made, upon request, to the k. Disclosure of employment and 8. Overtime administrative records are Department of Defense (DoD) under wage data records about current Postal retained for 7 years. approved computer matching programs Service employees may be made to the 9. Tax preparation records are limited to identify Postal Service employees Bureau of Labor Statistics for use in to an employee’s previous year’s wages, who are ready reservists for the their Occupational Employment tax documentation, and health purposes of updating DoD’s listings of Statistics program for the purpose of insurance coverage as required by the ready reservists and to report reserve developing estimates of the number of Affordable Care Act. status information to USPS and the jobs in certain occupations, and 10. Records pertaining to the USPS Congress; and to identify retired estimates of the wages paid to them. fuel fleet card purchase program are military employees who are subject to l. Disclosure of W–2 and 1095–C tax retained for 10 years. restrictions under the Dual information records to external third Compensation Act and to take party tax preparation services. Records existing on paper are subsequent actions to reduce military destroyed by burning, pulping, or retired pay or collect debts and POLICIES AND PRACTICES FOR STORAGE OF shredding. Records existing on RECORDS: overpayments. computer storage media are destroyed according to the applicable USPS media g. Disclosure of records may be made Automated database, computer sanitization practice. to the Internal Revenue Service under storage media, digital files, and paper files. approved computer matching programs ADMINISTRATIVE, TECHNICAL, AND PHYSICAL to identify current or former Postal POLICIES OF PRACTICES FOR RETRIEVAL OF SAFEGUARDS: Service employees who owe delinquent RECORDS: Paper records, computers, and federal taxes or returns and to collect By employee name, Social Security the unpaid taxes by levy on the salary computer storage media are located in Number, Employee Identification controlled-access areas under of those individuals pursuant to Internal Number, Fuel Purchase Fleet Card Revenue Code; and to make a supervision of program personnel. Personal Identification Number (PIN), or Access to these areas is limited to determination as to the proper reporting duty or pay location. of income tax purposes of an employee’s authorized personnel, who must be identified with a badge. Access to wages, expenses, compensation, POLICIES AND PRACTICES FOR RETENTION AND reimbursement, and taxes withheld and DISPOSAL OF RECORDS: records is limited to individuals whose official duties require such access. to take corrective action as warranted. 1. Leave application and Contractors and licensees are subject to h. Disclosure of the records about unauthorized overtime records are contract controls and unannounced on- current or recently terminated Postal retained 3 years. Time and attendance site audits and inspections. Computers Service employees may be made to the records (other than payroll) and local are protected by mechanical locks, card Department of Transportation (DOT) payroll records are retained 3 years. key systems, or other physical access under an approved computer matching Automated payroll records are retained control methods. The use of computer program to identify individuals who 10 years. systems is regulated with installed appear in DOT’s National Driver 2. Uniform allowance case files are security software, computer logon Register Problem Driver Pointer System. retained 3 years; and automated records identifications, and operating system The matching results are used only to are retained 6 years. controls including access controls, determine as a general matter whether 3. Records of monetary awards with a terminal and transaction logging, and commercial license suspension status that they have been processed, file management software. information within the pointer system failed processing, cancelled, or reported would be beneficial in making (Service Award Pins, Retirement Service RECORD ACCESS PROCEDURES: selections of USPS motor vehicle and Awards, Posthumous Service Awards) tractor-trailer operator personnel and are retained 7 years, as payroll records Requests for access must be made in will not be used for actual selection would have been affected/processed. accordance with the Notification decisions. Records of award submissions with the Procedure above and USPS Privacy Act i. Disclosure of records about current status approved, deleted, or as a draft regulations regarding access to records or former Postal Service employees may are retained 31 days, as payroll records and verification of identity under 39 be made to the Department of Health would not have been affected/ CFR 266.6. and Human Services under an approved processed. CONTESTING RECORD PROCEDURES: computer matching program for further 4. Records of employee-submitted release to state child support ideas are maintained for 90 days after See Notification Procedure and enforcement agencies when needed to being closed. Record Access Procedures above. locate noncustodial parents, to establish 5. Injury compensation records are and/or enforce child support retained 5 years. Records resulting in NOTIFICATION PROCEDURES: obligations, and to locate parents who affirmative identifications become part Individuals wanting to know if may be involved in parental kidnapping of a research case file, which if research information about them is maintained in or child custody cases. determines applicability, become either this system must address inquiries to j. Disclosure of records about current part of an investigative case record or a the facility head where currently or last or former Postal Service employees may remuneration case record that is employed. Headquarters employees be made to the Department of the retained 2 years beyond the must submit inquiries to Corporate Treasury under Treasury Offset Program determination. Personnel Management, 475 L’Enfant computer matching to establish the 6. Monetary claims records are Plaza SW, Washington, DC 20260. identity of the employee as an retained 3 years. Inquiries must include full name, Social individual owing a delinquent debt to 7. Automated records of garnishment Security Number or Employee another federal agency and to offset the cases are retained 6 months. Records Identification Number, name and salary of the employee to repay that located at a Post Office are retained 3 address of facility where last employed, debt. years. and dates of USPS employment.

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EXEMPTIONS PROMULGATED FOR THE SYSTEM: employee identification number(s), contract controls and unannounced on- Records in this system relating to postal assignment information, work site audits and inspections. injury compensation that have been contact information, finance number(s), Computers are protected by compiled in reasonable anticipation of a duty location, and pay location, and mechanical locks, card key systems, or civil action or proceeding are exempt Fleet Purchase Fleet Card Personal other physical access control methods. from individual access as permitted by Identification Number (PIN). The use of computer systems is 5 U.S.C. 552a(d)(5). The USPS has also 2. Employee resource management regulated with installed security claimed exemption from certain information: Records related to software, computer logon provisions of the Act for several of its workload, productivity, scheduling, identifications, and operating system other systems of records at 39 CFR availability, and absences, including controls including access controls, 266.9. To the extent that copies of family medical leave absences. terminal and transaction logging, and exempted records from those other file management software. RECORD SOURCE CATEGORIES: systems are incorporated into this RECORD ACCESS PROCEDURES: system, the exemptions applicable to Employees; employees’ supervisor or the original primary system continue to manager; and other systems of records. Requests for access must be made in apply to the incorporated records. accordance with the Notification ROUTINE USES OF RECORDS MAINTAINED IN THE Procedure above and USPS Privacy Act SYSTEM, INCLUDING CATEGORIES OF USERS AND HISTORY: regulations regarding access to records PURPOSES OF SUCH USES: February 25, 2019, 84 FR 6022; and verification of identity under 39 Standard routine uses 1. through 9. February 23, 2017, 82 FR 11489; June CFR 266.6. apply. 17, 2011, 76 FR 35483; March 2, 2015, CONTESTING RECORD PROCEDURES: 80 FR 11241 POLICIES AND PRACTICES FOR STORAGE OF RECORDS: See Notification Procedure and SYSTEM NAME AND NUMBER: Record Access Procedures above. Automated database, computer USPS 100.500 Personnel Resource storage media, digital files, and paper NOTIFICATION PROCEDURES: Management Records. files. Individuals wanting to know if SECURITY CLASSIFICATION: POLICIES OF PRACTICES FOR RETRIEVAL OF information about them is maintained in None. RECORDS: this system must address inquiries to the facility head where currently or last By employee name, Social Security SYSTEM LOCATION: employed. Headquarters employees Number, employee identification must submit inquiries to Corporate Post Offices; area and district number(s), route number, duty or pay Personnel Management, 475 L’Enfant facilities; Human Resources and location, pay period or Fuel Purchase Plaza SW, Washington, DC 20260. Operations, Headquarters; and Fleet Card Personal Identification Inquiries must include full name, Social Computer Operations Service Centers. Number (PIN). Security Number or Employee SYSTEM MANAGER(S): POLICIES AND PRACTICES FOR RETENTION AND Identification Number, name and Vice President, Employee Resource DISPOSAL OF RECORDS: address of facility where last employed, Management, United States Postal Resource management records related and dates of USPS employment. Service, 475 L’Enfant Plaza SW, to leave application, time and EXEMPTIONS PROMULGATED FOR THE SYSTEM: Washington, DC 20260. attendance, and light duty status are Vice President, Logistics, United retained 3 years. Family and Medical None. States Postal Service, 475 L’Enfant Plaza Leave Records are retained 5 years. HISTORY: SW, Washington, DC 20260. Other categories of resource June 17, 2011, 76 FR 35483, June 27, AUTHORITY FOR MAINTENANCE OF THE SYSTEM: management records are retained 1 year. 2012, 77 FR 38342. Records existing on paper are destroyed 39 U.S.C. 401, 404, 1001, 1003, and by burning, pulping, or shredding. 1005; and 29 U.S.C. 2601 et seq. SYSTEM NAME AND NUMBER: Records existing on computer storage USPS 500.100 Carrier and Vehicle PURPOSE(S) OF THE SYSTEM: media are destroyed according to the Operator Records. 1. To administer leave, attendance, applicable USPS media sanitization and attendance- related awards; and to practice. Records pertaining to the USPS SECURITY CLASSIFICATION: identify potential attendance problems. fuel fleet card purchase program are None. 2. To provide operations management retained for 10 years. SYSTEM LOCATION: with information about employee work ADMINISTRATIVE, TECHNICAL, AND PHYSICAL Headquarters; area and district schedules, mail volume, and SAFEGUARDS: productivity. facilities; processing and distribution Paper records, computers, and 3. To administer the USPS fleet card centers; bulk mail centers; vehicle computer storage media are located in program used to purchase commercial maintenance facilities; Post Offices; controlled-access areas under fuel and oil, maintenance repair, Integrated Business Solutions Services supervision of program personnel. polishing and washing, servicing, Centers; Accounting Service Centers; Access to these areas is limited to shuttling, and towing. contractor or licensee locations; and authorized personnel, who must be facilities employing persons under a CATEGORIES OF INDIVIDUALS COVERED BY THE identified with a badge. Restricted highway vehicle contract. SYSTEM: medical information is maintained in a Current and former USPS employees. separate locked cabinet under control of SYSTEM MANAGER(S): the FMLA Coordinator. Access to Vice President, Delivery and Retail CATEGORIES OF RECORDS IN THE SYSTEM: records is limited to individuals whose Operations, United States Postal 1. Employee information: Name, official duties require such access. Service, 475 L’Enfant Plaza SW, home address, Social Security Number, Contractors and licensees are subject to Washington, DC 20260.

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AUTHORITY FOR MAINTENANCE OF THE SYSTEM: RECORD SOURCE CATEGORIES: records is limited to individuals whose 39 U.S.C. 401, 403, 404, and 1206. Employees; contractors; carrier official duties require such access. supervisors; route inspectors; and state Contractors and licensees are subject to PURPOSE(S) OF THE SYSTEM: motor vehicle departments. contract controls and unannounced on- 1. To reimburse carriers who use site audits and inspections. Computers privately owned vehicles to transport ROUTINE USES OF RECORDS MAINTAINED IN THE are protected by mechanical locks, card the mail pursuant to a contractual SYSTEM, INCLUDING CATEGORIES OF USERS AND key systems, or other physical access PURPOSES OF SUCH USES: agreement. control methods. The use of computer 2. To evaluate delivery and collection Standard routine uses 1. through 9. systems is regulated with installed operations and to administer these apply. security software, computer logon functions. identifications, and operating system 3. To provide local Post Office POLICIES AND PRACTICES FOR STORAGE OF controls including access controls, managers, supervisors, and RECORDS: terminal and transaction logging, and transportation managers with Automated database, computer file management software. information to assign routes and storage media, and paper. vehicles, and to adjust workload, POLICIES OF PRACTICES FOR RETRIEVAL OF RECORD ACCESS PROCEDURES: schedules, and type of equipment RECORDS: Requests for access must be made in operated. By name, Social Security Number, accordance with the Notification 4. To determine contract vehicle Employee Identification Number, pay Procedure above and USPS Privacy Act operator suitability for assignments location, Postal Service facility name, regulations regarding access to records requiring access to mail. route number, vehicle number, or Fuel and verification of identity under 39 5. To serve as a basis for vehicle CFR 266.6. operator corrective action and Purchase Fleet Card Personal presentation of safe driving awards. Identification Number (PIN). CONTESTING RECORD PROCEDURES: 6. To administer the USPS fleet card POLICIES AND PRACTICES FOR RETENTION AND See Notification Procedure and program used to purchase commercial DISPOSAL OF RECORDS: Record Access Procedures above. fuel and oil, maintenance repair, 1. Route inspection records and minor NOTIFICATION PROCEDURES: polishing and washing, servicing, adjustment worksheets are retained 2 Current and former employees, and shuttling, and towing. years where inspections or minor highway vehicle contract employees, adjustments are made annually or more CATEGORIES OF INDIVIDUALS COVERED BY THE wanting to know if information about SYSTEM frequently. Where inspections are made : them is maintained in this system of less than annually, records are retained 1. City Letter carriers. records must address inquiries to the until a new inspection or minor 2. Current and former USPS facility head where currently or last adjustment, and an additional 2 years employees who operate or maintain employed. Requests must include full thereafter. USPS-owned or leased vehicles. name, Social Security Number or 2. Statistical engineering records are 3. Contract highway vehicle operators. Employee Identification Number, and, retained 5 years, and may be retained where applicable, the route number and CATEGORIES OF RECORDS IN THE SYSTEM: further on a year-to-year basis. dates of any related agreements or 1. Carrier information: Records 3. Agreements for use of a privately contracts. related to letter carriers, including owned vehicle are retained 2 years. Post carrier’s name, home address, Social office copies of payment authorizations EXEMPTIONS PROMULGATED FOR THE SYSTEM: Security Number, Employee are retained 90 days. Vehicle records are None. Identification Number, postal maintain for the life of the vehicle. assignment information, work contact 4. Records of employees who operate HISTORY: information, finance number(s), duty or maintain USPS vehicles are retained June 27, 2012, 77 FR 38342. location, pay location, route number 4 years. Joshua J. Hofer, and work schedule, and effective date of 5. Records of highway vehicle agreement for use of a privately owned contract employees are retained 1 year Attorney, Federal Compliance. vehicle to transport the mail, if after contract expiration or contract [FR Doc. 2020–10462 Filed 5–14–20; 8:45 am] applicable. employee termination. BILLING CODE 7710–12–P 2. Vehicle operator information: 6. Records pertaining to the USPS fuel Records of employees’ operation or fleet card purchase program are retained maintenance of USPS-owned or leased for 10 years. SECURITIES AND EXCHANGE vehicles, including employee name, Records existing on paper are COMMISSION home address, Social Security Number, destroyed by burning, pulping, or Employee Identification Number, age, [Release No. 34–88850; File No. SR–MIAX– shredding. Records existing on 2020–09] postal assignment information, work computer storage media are destroyed contact information, finance number(s), according to the applicable USPS media Self-Regulatory Organizations; Miami duty location, pay location, work sanitization practice. International Securities Exchange LLC; schedule, Fuel Purchase Fleet Card Notice of Filing and Immediate ADMINISTRATIVE, TECHNICAL, AND PHYSICAL Personal Identification Number (PIN), Effectiveness of a Proposed Rule SAFEGUARDS: and other records of vehicle operation Change To Amend Its Fee Schedule and maintenance. Paper records, computers, and 3. Highway vehicle contract employee computer storage media are located in May 11, 2020. information: Records related to contract controlled-access areas under Pursuant to the provisions of Section employee name, Social Security supervision of program personnel. 19(b)(1) of the Securities Exchange Act Number, address and employment Access to these areas is limited to of 1934 (‘‘Act’’) 1 and Rule 19b–4 history, driver’s license number, and authorized personnel, who must be contract assignment information. identified with a badge. Access to 1 15 U.S.C. 78s(b)(1).

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thereunder,2 notice is hereby given that 2014,5 and has added and removed an equitable allocation of reasonable on April 29, 2020, Miami International option classes from that list since that dues, fees and other charges among Securities Exchange LLC (‘‘MIAX time.6 Select Symbols are rebated Exchange members and issuers and Options’’ or ‘‘Exchange’’) filed with the slightly higher in certain Program tiers other persons using its facilities, and Securities and Exchange Commission than non-Select Symbols. The Exchange 6(b)(5) of the Act,10 in that it is designed (‘‘Commission’’) a proposed rule change notes that on April 1, 2020, Sprint and to promote just and equitable principles as described in Items I, II, and III below, T-Mobile US, Inc. (‘‘T-Mobile’’) of trade, to remove impediments to and which Items have been prepared by the announced the completion of a merger perfect the mechanism of a free and Exchange. The Commission is of the two companies, with T-Mobile open market and a national market publishing this notice to solicit continuing as the surviving company system, and, in general to protect comments on the proposed rule change and Sprint shares converting into the investors and the public interest and is from interested persons. right to receive T-Mobile shares.7 Further, the combined company will not designed to permit unfair I. Self-Regulatory Organization’s continue to trade under the symbol for discrimination between customers, Statement of the Terms of Substance of T-Mobile, ‘‘TMUS.’’ Options on Sprint issuers, brokers and dealers. the Proposed Rule Change were authorized to be listed for trading In particular, the proposal to delete The Exchange is filing a proposal to on the Exchange pursuant to Rule 402, the symbol ‘‘S’’ from the list of MIAX amend the MIAX Options Fee Schedule but are no longer listed for trading since Select Symbols contained in the (the ‘‘Fee Schedule’’). Sprint is no longer the registered stock Program is consistent with Section The text of the proposed rule change symbol for the merged company and as 6(b)(4) of the Act because the proposed is available on the Exchange’s website at such, Sprint shares are no longer listed changes will allow for continued benefit http://www.miaxoptions.com/rule- for trading on equity trading venues to investors by providing them an filings, at MIAX’s principal office, and under the symbol ‘‘S.’’ The Exchange updated list of MIAX Select Symbols at the Commission’s Public Reference has also determined not to add the Room. contained in the Program on the merged company, T-Mobile, to the Exchange’s Fee Schedule. II. Self-Regulatory Organization’s MIAX Select Symbols list for business The Exchange believes that the Statement of the Purpose of, and and competitive reasons. Statutory Basis for, the Proposed Rule Accordingly, the Exchange is proposal to amend an option class that Change amending its Fee Schedule to delete the qualifies for the credit for transactions symbol ‘‘S’’ from the list of MIAX Select in MIAX Select Symbols is fair, In its filing with the Commission, the Symbols contained in the Program. This equitable and not unreasonably Exchange included statements amendment is intended to eliminate any discriminatory. The Exchange believes concerning the purpose of and basis for potential confusion and to make it clear that the Program itself is reasonably the proposed rule change and discussed to market participants that ‘‘S’’ will not any comments it received on the designed because it incentivizes be a MIAX Select Symbol contained in 11 proposed rule change. The text of these providers of Priority Customer order the Program as ‘‘S’’ options are no flow to send that Priority Customer statements may be examined at the longer listed on the Exchange. places specified in Item IV below. The order flow to the Exchange in order to Exchange has prepared summaries, set 2. Statutory Basis receive a credit in a manner that enables forth in sections A, B, and C below, of The Exchange believes that its the Exchange to improve its overall the most significant aspects of such proposal to amend the Fee Schedule is competitiveness and strengthen its statements. consistent with Section 6(b) of the Act 8 market quality for all market participants. The Program, which A. Self-Regulatory Organization’s in general, and furthers the objectives of 9 provides increased incentives in certain Statement of the Purpose of, and Section 6(b)(4) of the Act, in that it is Statutory Basis for, the Proposed Rule tiers in high volume select symbols, is Change 5 See Securities Exchange Act Release No. 71700 also reasonably designed to increase the (March 12, 2014), 79 FR 15188 (March 18, 2014) competitiveness of the Exchange with 1. Purpose (SR–MIAX–2014–13). other options exchanges that also offer 6 See Securities Exchange Act Release Nos. 87964 The Exchange proposes to amend the (January 14, 2020), 85 FR 3435 (January 21, 2020) increased incentives to higher volume list of MIAX Select Symbols 3 contained (SR–MIAX–2020–01); 87790 (December 18, 2019), symbols. in the Priority Customer Rebate Program 84 FR 71037 (December 26, 2019) (SR–MIAX–2019– The Exchange also believes that its (the ‘‘Program’’) 4 of the Exchange’s Fee 49); 85314 (March 14, 2019), 84 FR 10359 (March 20, 2019) (SR–MIAX–2019–07); 81998 (November 2, proposal is consistent with Section Schedule to delete the Select Symbol 2017), 82 FR 51897 (November 8, 2017) (SR–MIAX– 6(b)(5) of the Act because it will apply ‘‘S,’’ associated with the Sprint 2017–45); 81019 (June 26, 2017), 82 FR 29962 (June equally to all Priority Customer orders Corporation (‘‘Sprint’’), from the Select 30, 2017) (SR–MIAX–2017–29); 79301 (November in MIAX Select Symbols in the Program. Symbols list. 14, 2016), 81 FR 81854 (November 18, 2016) (SR– The Exchange initially created the list MIAX–2016–42); 74291 (February 18, 2015), 80 FR All similarly situated Priority Customer 9841 (February 24, 2015) (SR–MIAX–2015–09); orders in MIAX Select Symbols are of MIAX Select Symbols on March 1, 74288 (February 18, 2015), 80 FR 9837 (February 24, 2015) (SR–MIAX–2015–08); 73328 (October 9, subject to the same rebate schedule, and 2 17 CFR 240.19b–4. 2014), 79 FR 62230 (October 16, 2014) (SR–MIAX– access to the Exchange is offered on 3 The term ‘‘MIAX Select Symbols’’ means 2014–50); 72567 (July 8, 2014), 79 FR 40818 (July terms that are not unfairly options overlying AAL, AAPL, AIG, AMAT, AMD, 14, 2014) (SR–MIAX–2014–34); 72356 (June 10, discriminatory. AMZN, BA, BABA, BB, BIDU, BP, C, CAT, CLF, 2014), 79 FR 34384 (June 16, 2014) (SR–MIAX– CVX, DAL, EBAY, EEM, FB, FCX, GE, GILD, GLD, 2014–26); 71700 (March 12, 2014), 79 FR 15188 GM, GOOGL, GPRO, HAL, INTC, IWM, JCP, JNJ, (March 18, 2014) (SR–MIAX–2014–13). 10 15 U.S.C. 78f(b)(1) and (b)(5). JPM, KMI, KO, MO, MRK, NFLX, NOK, ORCL, PBR, 7 See T-Mobile Completes Merger with Sprint to 11 The term ‘‘Priority Customer’’ means a person PFE, PG, QCOM, QQQ, RIG, S, SPY, T, TSLA, USO, Create the New T-Mobile (April 1, 2020), available or entity that (i) is not a broker or dealer in VALE, WBA, WFC, WMB, X, XHB, XLE, XLF, XLP, at https://newsroom.sprint.com/tmobile-completes- securities, and (ii) does not place more than 390 XOM and XOP. merger-with-sprint.htm. orders in listed options per day on average during 4 See section 1(a)(iii) of the Fee Schedule for a 8 15 U.S.C. 78f(b). a calendar month for its own beneficial account(s). complete description of the Program. 9 15 U.S.C. 78f(b)(4). See Exchange Rule 100.

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B. Self-Regulatory Organization’s All submissions should refer to File notice is hereby given that on April 28, Statement on Burden on Competition Number SR–MIAX–2020–09. This file 2020, The Nasdaq Stock Market LLC number should be included on the (‘‘Nasdaq’’ or ‘‘Exchange’’) filed with the The Exchange does not believe that subject line if email is used. To help the Securities and Exchange Commission the proposed rule change will result in Commission process and review your (‘‘Commission’’) the proposed rule any burden on competition that is not comments more efficiently, please use change as described in Items I and II necessary or appropriate in furtherance only one method. The Commission will below, which Items have been prepared of the purposes of the Act. The post all comments on the Commission’s by the Exchange. The Commission is proposed rule change is a not a internet website (http://www.sec.gov/ publishing this notice to solicit competitive filing but rather is designed rules/sro.shtml). Copies of the comments on the proposed rule change to update the list of MIAX Select submission, all subsequent from interested persons. Symbols contained in the Program in amendments, all written statements I. Self-Regulatory Organization’s order to avoid potential confusion on with respect to the proposed rule Statement of the Terms of the Substance the part of market participants. change that are filed with the of the Proposed Rule Change C. Self-Regulatory Organization’s Commission, and all written Statement on Comments on the communications relating to the The Exchange proposes to amend Proposed Rule Change Received From proposed rule change between the certain internal cross-references within Members, Participants, or Others Commission and any person, other than General 5, Discipline. those that may be withheld from the The text of the proposed rule change Written comments were neither public in accordance with the is available on the Exchange’s website at solicited nor received. provisions of 5 U.S.C. 552, will be http://nasdaq.cchwallstreet.com, at the III. Date of Effectiveness of the available for website viewing and principal office of the Exchange, and at Proposed Rule Change and Timing for printing in the Commission’s Public the Commission’s Public Reference Commission Action Reference Room, 100 F Street NE, Room. Washington, DC 20549, on official The foregoing rule change has become II. Self-Regulatory Organization’s business days between the hours of Statement of the Purpose of, and effective pursuant to Section 10:00 a.m. and 3:00 p.m. Copies of the 12 Statutory Basis for, the Proposed Rule 19(b)(3)(A)(ii) of the Act, and Rule filing also will be available for 13 Change 19b–4(f)(2) thereunder. At any time inspection and copying at the principal within 60 days of the filing of the office of the Exchange. All comments In its filing with the Commission, the proposed rule change, the Commission received will be posted without change. Exchange included statements summarily may temporarily suspend Persons submitting comments are concerning the purpose of and basis for such rule change if it appears to the cautioned that we do not redact or edit the proposed rule change and discussed Commission that such action is personal identifying information from any comments it received on the necessary or appropriate in the public comment submissions. You should proposed rule change. The text of these interest, for the protection of investors, submit only information that you wish statements may be examined at the or otherwise in furtherance of the to make available publicly. All places specified in Item IV below. The purposes of the Act. If the Commission submissions should refer to File Exchange has prepared summaries, set takes such action, the Commission shall Number SR–MIAX–2020–09 and should forth in sections A, B, and C below, of institute proceedings to determine be submitted on or before June 5, 2020. the most significant aspects of such whether the proposed rule should be statements. approved or disapproved. For the Commission, by the Division of Trading and Markets, pursuant to delegated A. Self-Regulatory Organization’s IV. Solicitation of Comments authority.14 Statement of the Purpose of, and J. Matthew DeLesDernier, Interested persons are invited to Statutory Basis for, the Proposed Rule submit written data, views, and Assistant Secretary. Change arguments concerning the foregoing, [FR Doc. 2020–10392 Filed 5–14–20; 8:45 am] 1. Purpose BILLING CODE 8011–01–P including whether the proposed rule In 2019, Nasdaq relocated its rules change is consistent with the Act. into a new Rulebook shell.3 As a result, Comments may be submitted by any of SECURITIES AND EXCHANGE several rules referenced within the 8000 the following methods: COMMISSION and 9000 Series Rules contained in General 5 Discipline have been Electronic Comments [Release No. 34–88852; File No. SR– • NASDAQ–2020–022] relocated under a new rule number. At Use the Commission’s internet this time, Nasdaq proposes to update comment form (http://www.sec.gov/ Self-Regulatory Organizations; The certain internal cross-references within rules/sro.shtml); or General 5, Discipline. Specifically, • Send an email to rule-comments@ Nasdaq Stock Market LLC; Notice of Filing and Immediate Effectiveness of Nasdaq proposes to update internal sec.gov. Please include File Number SR– cross-references within Rules 8120 MIAX–2020–09 on the subject line. Proposed Rule Change To Amend Certain Internal Cross-References in (Definitions), 9110 (Application), 9268 Paper Comments General 5, Discipline (Decision of Hearing Panel or Extended • Hearing Panel), 9269 (Default Send paper comments in triplicate May 11, 2020. Decisions), 9270 (Settlement Procedure), to Vanessa Countryman, Secretary, Pursuant to Section 19(b)(1) of the 9311 (Appeal by Any Party; Cross- Securities and Exchange Commission, Securities Exchange Act of 1934 (the Appeal), 9312 (Review Proceeding 100 F Street NE, Washington, DC ‘‘Act’’),1 and Rule 19b–4 thereunder,2 Initiated By the Nasdaq Review 20549–1090. 14 17 CFR 200.30–3(a)(12). 3 See Securities Exchange Act Release No. 87778 12 15 U.S.C. 78s(b)(3)(A)(ii). 1 15 U.S.C. 78s(b)(1). (December 17, 2019), 84 FR 70590 (December 23, 13 17 CFR 240.19b–4(f)(2). 2 17 CFR 240.19b–4. 2019) (SR–NASDAQ–2019–98).

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Council), 9351 (Discretionary Review by cross-references to its current rules, For this reason, and to avoid any Nasdaq Board), 9360 (Effectiveness of which were relocated. These corrections investor confusion that may result from Sanctions), 9524 (Nasdaq Review to update rule references within the inaccurate references within Nasdaq’s Council Consideration), 9552 (Failure to Nasdaq Disciplinary Rules will make disciplinary rules, the Commission Provide Information or Keep the rules accurate and reflect the correct believes that waiver of the 30-day Information Current), 9553 (Failure to cross-referenced rules. These operative delay is consistent with the Pay Nasdaq Dues, Fees and Other amendments are non-substantive. protection of investors and the public interest. Therefore, the Commission Charges), 9554 (Failure to Comply with B. Self-Regulatory Organization’s hereby waives the operative delay and an Arbitration Award or Related Statement on Burden on Competition Settlement or an Order of Restitution or designates the proposal as operative Settlement Providing for Restitution), The Exchange does not believe that upon filing.10 9555 (Failure to Meet the Eligibility or the proposed rule change will impose At any time within 60 days of the Qualification Standards or Prerequisites any burden on competition not filing of the proposed rule change, the for Access to Services), 9556 (Failure to necessary or appropriate in furtherance Commission summarily may Comply with Temporary and Permanent of the purposes of the Act. These temporarily suspend such rule change if Cease and Desist Orders), 9557 corrections to update rule references it appears to the Commission that such (Procedures for Regulating Activities within the Nasdaq Disciplinary Rules action is necessary or appropriate in the Under Rules 4110A and 4120A will make the rules accurate and reflect public interest, for the protection of Regarding a Member Experiencing the correct cross-referenced rules. These investors, or otherwise in furtherance of Financial or Operational Difficulties), amendments are non-substantive. the purposes of the Act. If the 9558 (Summary Proceedings for Actions C. Self-Regulatory Organization’s Commission takes such action, the Authorized by Section 6(d)(3) of the Statement on Comments on the Commission shall institute proceedings Act), 9559 (Hearing Procedures for Proposed Rule Change Received From to determine whether the proposed rule Expedited Proceedings Under the Rule Members, Participants, or Others change should be approved or disapproved. 9550 Series), and 9810 (Initiation of No written comments were either Proceeding). solicited or received. IV. Solicitation of Comments The Exchange proposes to update Interested persons are invited to internal cross-references within these III. Date of Effectiveness of the submit written data, views, and rules as follows: Proposed Rule Change and Timing for • Rule 0120 to General 1(b); Commission Action arguments concerning the foregoing, • including whether the proposed rule Rule 1160 to General 2, Section 11; Because the foregoing proposed rule • Rule 2010A to General 9, Section change is consistent with the Act. change does not: (i) Significantly affect Comments may be submitted by any of 1(a); the protection of investors or the public • Rule 2140 to General 9, Section the following methods: interest; (ii) impose any significant 1(h); Electronic Comments • burden on competition; and (iii) become Rule 2160 to General 2, Section 14; • • Rule 4110A to General 9, Section operative for 30 days from the date on Use the Commission’s internet 40; and which it was filed, or such shorter time comment form (http://www.sec.gov/ • Rule 4120A to General 9, Section as the Commission may designate, it has rules/sro.shtml); or • Send an email to rule-comments@ 41. become effective pursuant to Section 6 The Exchange also proposes to 19(b)(3)(A) of the Act and Rule 19b– sec.gov. Please include File Number SR– 7 replace references to General 5, Section 4(f)(6) thereunder. NASDAQ–2020–022 on the subject line. A proposed rule change filed 2 with the Rule 9600 Series within Paper Comments Nasdaq Rules 8211 (Automated pursuant to Rule 19b–4(f)(6) under the Act 8 normally does not become • Send paper comments in triplicate Submission of Trading Data), 9120(r) to Secretary, Securities and Exchange (Definitions) and 9610 (Application). operative for 30 days after the date of its filing. However, Rule 19b–4(f)(6)(iii) 9 Commission, 100 F Street NE, These amendments correct references to Washington, DC 20549–1090. General 5, Section 2, which were permits the Commission to designate a All submissions should refer to File erroneously made as that reference does shorter time if such action is consistent Number SR–NASDAQ–2020–022. This not exist in the Rulebook. The Exchange with the protection of investors and the file number should be included on the is reverting the text back to the original public interest. The Exchange has asked subject line if email is used. To help the citations. the Commission to waive the 30-day Commission process and review your The Exchange proposes other minor operative delay so that the Exchange comments more efficiently, please use technical amendments to correct may immediately update the identified only one method. The Commission will grammar and punctuation. These rule references within the Nasdaq post all comments on the Commission’s amendments are non-substantive. disciplinary rules, which the Exchange states will make the rules accurate and internet website (http://www.sec.gov/ 2. Statutory Basis reflect the correct cross-referenced rules. rules/sro.shtml). Copies of the The Exchange believes that its submission, all subsequent proposal is consistent with Section 6(b) 6 15 U.S.C. 78s(b)(3)(A). amendments, all written statements of the Act,4 in general, and furthers the 7 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– with respect to the proposed rule 4(f)(6)(iii) requires a self-regulatory organization to 5 change that are filed with the objectives of Section 6(b)(5) of the Act, give the Commission written notice of its intent to in particular, in that it is designed to file the proposed rule change, along with a brief Commission, and all written promote just and equitable principles of description and text of the proposed rule change, communications relating to the trade and to protect investors and the at least five business days prior to the date of filing of the proposed rule change, or such shorter time 10 public interest by correcting internal For purposes only of waiving the 30-day as designated by the Commission. The Exchange operative delay, the Commission also has has satisfied this requirement. considered the proposed rule’s impact on 4 15 U.S.C. 78f(b). 8 17 CFR 240.19b–4(f)(6). efficiency, competition, and capital formation. See 5 15 U.S.C. 78f(b)(5). 9 17 CFR 240.19b–4(f)(6)(iii). 15 U.S.C. 78c(f).

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proposed rule change between the requirements at 49 CFR 1105.7 and Board’s website, by writing to OEA, or Commission and any person, other than 1105.8 (notice of environmental and by calling OEA at (202) 245–0305. those that may be withheld from the historic report), 49 CFR 1105.12 Assistance for the hearing impaired is public in accordance with the (newspaper publication), and 49 CFR available through the Federal Relay provisions of 5 U.S.C. 552, will be 1152.50(d)(1) (notice to governmental Service at (800) 877–8339. Comments available for website viewing and agencies) have been met. on environmental and historic printing in the Commission’s Public Any employee of CSXT adversely preservation matters must be filed Reference Room, 100 F Street NE, affected by the abandonment shall be within 15 days after the Draft EA Washington, DC 20549, on official protected under Oregon Short Line becomes available to the public. business days between the hours of Railroad—Abandonment Portion Environmental, historic preservation, 10:00 a.m. and 3:00 p.m. Copies of the Goshen Branch Between Firth & public use, or interim trail use/rail filing also will be available for Ammon, in Bingham & Bonneville banking conditions will be imposed, inspection and copying at the principal Counties, Idaho, 360 I.C.C. 91 (1979). To where appropriate, in a subsequent office of the Exchange. All comments address whether this condition decision. received will be posted without change. adequately protects affected employees, Pursuant to the provisions of 49 CFR Persons submitting comments are a petition for partial revocation under 1152.29(e)(2), CSXT shall file a notice of cautioned that we do not redact or edit 49 U.S.C. 10502(d) must be filed. consummation with the Board to signify personal identifying information from Provided no formal expression of that it has exercised the authority comment submissions. You should intent to file an offer of financial granted and fully abandoned the Line. If submit only information that you wish assistance (OFA) has been received,1 the consummation has not been effected by to make available publicly. All exemption will be effective on June 14, CSXT’s filing of a notice of submissions should refer to File 2020, unless stayed pending consummation by May 15, 2021, and Number SR–NASDAQ–2020–022 and reconsideration. Petitions to stay that do there are no legal or regulatory barriers should be submitted on or before June not involve environmental issues must to consummation, the authority to 5, 2020. be filed by May 22, 2020.2 Formal abandon will automatically expire. expressions of intent to file an OFA For the Commission, by the Division of Board decisions and notices are available Trading and Markets, pursuant to delegated under 49 CFR 1152.27(c)(2) and interim at www.stb.gov. 11 trail use/rail banking requests under 49 authority. Decided: May 11, 2020. J. Matthew DeLesDernier, CFR 1152.29 must be filed by May 26, 2020.3 Petitions to reopen or requests By the Board, Allison C. Davis, Director, Assistant Secretary. Office of Proceedings. for public use conditions under 49 CFR 1152.28 must be filed by June 4, 2020, Kenyatta Clay, [FR Doc. 2020–10393 Filed 5–14–20; 8:45 am] with the Surface Transportation Board, Clearance Clerk. BILLING CODE 8011–01–P 395 E Street SW, Washington, DC [FR Doc. 2020–10391 Filed 5–14–20; 8:45 am] 20423–0001. BILLING CODE 4915–01–P A copy of any petition filed with the SURFACE TRANSPORTATION BOARD Board should be sent to CSXT’s [Docket No. AB 55 (Sub-No. 799X)] representative, Louis E. Gitomer, Law SURFACE TRANSPORTATION BOARD Offices of Louis E. Gitomer, LLC, 600 CSX Transportation, Inc.— Baltimore Avenue, Suite 301, Towson, [Docket No. FD 35742 (Sub-No. 1)] Abandonment Exemption—in MD 21204. Dickenson County, Va. If the verified notice contains false or Clarkdale Arizona Central Railroad, misleading information, the exemption L.C.—Trackage Rights Exemption— CSX Transportation, Inc. (CSXT), has is void ab initio. Drake Cement, LLC filed a verified notice of exemption CSXT has filed a combined Clarkdale Arizona Central Railroad, under 49 CFR part 1152 subpart F— environmental and historic report that L.C. (CACR), a Class III carrier, has filed Exempt Abandonments to abandon an addresses the potential effects, if any, of a verified notice of exemption under 49 approximately 13.65-mile rail line on its the abandonment on the environment CFR 1180.2(d)(7) to renew and modify Florence Division, Kingsport and historic resources. OEA will issue a a previous trackage rights agreement 1 Subdivision, Fremont Branch extending Draft Environmental Assessment (Draft between CACR and Drake Cement, LLC between milepost ZF 0.0 and milepost EA) by May 22, 2020. The Draft EA will (Drake), also a Class III carrier, ZF 13.65, in Dickenson County, Va. (the be available to interested persons on the Line). The Line traverses U.S. Postal Zip permitting CACR to operate over Drake’s Track Nos. 3924, 3907, 3921, and 3904, Codes 24226, 24228, and 24230. 1 Persons interested in submitting an OFA must CSXT has certified that: (1) No local first file a formal expression of intent to file an located between milepost 0 + 15 feet traffic has moved over the Line for at offer, indicating the type of financial assistance they and milepost 0 + 3000 feet in Drake, least two years; (2) any overhead traffic wish to provide (i.e., subsidy or purchase) and Ariz., a distance of approximately 2,985 demonstrating that they are preliminarily feet. The Agreement also grants CACR can be rerouted over other lines; (3) no financially responsible. See 49 CFR 1152.27(c)(2)(i). formal complaint filed by a user of rail 2 The Board will grant a stay if an informed the right to operate over Drake’s Track service on the Line (or by a state or local decision on environmental issues (whether raised government entity acting on behalf of by a party or by the Board’s Office of Environmental 1 CACR states that the previous agreement such user) regarding cessation of service Analysis (OEA) in its independent investigation) expired on December 31, 2015, although CACR has cannot be made before the exemption’s effective continued to operate. A redacted version of the over the Line either is pending with the date. See Exemption of Out-of-Serv. Rail Lines, 5 renewed agreement (Agreement) was filed with Surface Transportation Board (Board) or I.C.C.2d 377 (1989). Any request for a stay should CACR’s verified notice of exemption. CACR with any U.S. District Court or has been be filed as soon as possible so that the Board may simultaneously filed a motion for a protective order decided in favor of complainant within take appropriate action before the exemption’s to protect the confidential and commercially effective date. sensitive information in the unredacted version of the two-year period; and (4) the 3 Filing fees for OFAs and trail use requests can the Agreement, which CACR submitted under seal. be found at 49 CFR 1002.2(f)(25) and (27), That motion will be addressed in a separate 11 17 CFR 200.30–3(a)(12). respectively. decision.

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Nos. 3922 and 3923 to provide SURFACE TRANSPORTATION BOARD offer employment to the same CMQR switching operations for Drake. crews that currently operate trains over [Docket No. FD 36402] The verified notice states that the the Omal Line. Upon consummation of proposed transaction will afford CACR Fortress Investment Group LLC— the transaction, KRS will acquire the the ability to continue to conduct Exemption for Intra-Corporate Family right and common carrier obligation to common carrier operations in Transaction—Ohio River Partners operate the Omal Line pursuant to the interchange with BNSF Railway Shareholder LLC & Katahdin Railcar lease between ORPS and KRS. Company. Services LLC Unless stayed, the exemption will be The transaction may be consummated Fortress Investment Group LLC effective on May 30, 2020 (30 days after on or after May 30, 2020, the effective (Fortress), for the benefit of Fortress the verified notice was filed). The date of the exemption (30 days after the Transportation and Infrastructure Parties state that they intend to verified notice of exemption was filed). Investors LLC (FTAI), Ohio River consummate the proposed transaction Partners Shareholder LLC (ORPS), a as soon as practicable after that date. If the notice contains false or Class III carrier, and Katahdin Railcar The Parties state that the transaction misleading information, the exemption Services LLC (KRS), a noncarrier is void ab initio. Petitions to revoke the 1 will not result in adverse changes in (collectively, the Parties), filed a service levels, significant operational exemption under 49 U.S.C. 10502(d) verified notice of exemption for an changes, or a change in the competitive may be filed at any time. The filing of intra-corporate family transaction under balance with carriers outside the a petition to revoke will not 49 CFR 1180.2(d)(3), which exempts automatically stay the effectiveness of from the prior approval requirements of corporate family. Therefore, the the exemption. Petitions for stay must 49 U.S.C. 11323 ‘‘[t]ransactions within a transaction is exempt from the prior be filed by May 22, 2020 (at least seven corporate family that do not result in approval requirements of 49 U.S.C. days before the exemption becomes adverse changes in service levels, 11323. See 49 CFR 1180.2(d)(3). effective). significant operational changes, or a Under 49 U.S.C. 10502(g), the Board Under 49 U.S.C. 10502(g), the Board change in the competitive balance with may not use its exemption authority to may not use its exemption authority to carriers outside the corporate family.’’ relieve a rail carrier of its statutory 49 CFR 1180.2(d)(3). obligation to protect the interests of its relieve a rail carrier of its statutory Under the proposed transaction, KRS obligation to protect the interests of its employees. However, 49 U.S.C. 11326(c) will lease from ORPS a 12.2-mile rail does not provide for labor protection for employees. However, 49 U.S.C. 11326(c) line between milepost 60.5 at or near transactions under 49 U.S.C. 11324 and does not provide for labor protection for Powhatan Point, Ohio, and milepost 11325 that involve only Class III rail transactions under 49 U.S.C. 11324 and 72.7 at or near Hannibal, Ohio (the 11325 that involve only Class III rail Omal Line), thereby becoming a Class III carriers. Accordingly, the Board may not carriers. Accordingly, the Board may not rail carrier.2 impose labor protective conditions here impose labor protective conditions here, The notice states that ORPS satisfies because all of the carriers involved are because all of the carriers involved are its common carrier obligation by Class III rail carriers. Class III carriers. engaging Central Maine & Quebec If the verified notice contains false or All pleadings, referring to Docket No. Railway US, Inc. (CMQR), to operate the misleading information, the exemption Omal Line on a contract basis. The FD 35742 (Sub-No. 1), must be filed is void ab initio. Petitions to revoke the Parties state that ORPS affiliate KRS will with the Surface Transportation Board, exemption under 49 U.S.C. 10502(d) operate the Omal Line upon the June 30, 395 E Street SW, Washington, DC may be filed at any time. The filing of 2020 termination of the contract a petition to revoke will not 20423–0001. In addition, a copy of each 3 between OPRS and CMQR. According automatically stay the effectiveness of pleading must be served on CACR’s to the Parties, the transaction will the exemption. Petitions for stay must representative, William A. Mullins, facilitate an orderly transition of rail be filed no later than May 22, 2020 (at Baker & Miller PLLC, 2401 Pennsylvania operations and provide for Ave. NW, Suite 300, Washington, DC uninterrupted rail service to customers least seven days before the exemption 20037. located on and along the Omal Line. becomes effective). According to CACR, this action is The notice states that KRS intends to All pleadings, referring to Docket No. categorically excluded from FD 36402, must be filed with the environmental review under 49 CFR 1 The verified notice states that FTAI, which is Surface Transportation Board either via managed by an affiliate of Fortress, indirectly owns e-filing or in writing addressed to 395 E 1105.6(c), and from historic reporting a majority equity interest in ORPS and also under 49 CFR 1105.8(b)(3). indirectly owns KRS. FTAI, ORPS, and KRS all are Street, SW, Washington, DC 20423– Delaware limited liability companies. 0001. In addition, one copy of each Board decisions and notices are 2 In 2016, Ohio River Partners LLC (ORP) pleading must be served on the Parties’ available at www.stb.gov. obtained an exemption to acquire and operate the Omal Line. See Ohio River Partners LLC—Acquis. representative, Terence M. Hynes, Decided: May 12, 2020. & Operation Exemption—Hannibal Dev., LLC, FD Sidley Austin LLP, 1501 K St NW, By the Board, Allison C. Davis, Director, 35984 (STB served Apr. 1, 2016). In 2017, ORP was Washington, DC 20005. Office of Proceedings. authorized to be merged into its corporate parent, ORPS. See Ohio River Partners Shareholders LLC— According to the Parties, this action is Regena Smith-Bernard, Exemption for Intra-Corporate Family categorically excluded from Clearance Clerk. Transaction—Ohio River Partners, LLC, FD 36152 environmental review under 49 CFR (STB served Dec. 22, 2017). [FR Doc. 2020–10473 Filed 5–14–20; 8:45 am] 3 The notice states that FTAI sold CMQR to Soo 1105.6(c) and historic reporting under BILLING CODE 4915–01–P Line Corporation, an indirect wholly owned 49 CFR 1105.8(b). subsidiary of Canadian Pacific Railway Company Board decisions and notices are (CP), and that CMQR is no longer an affiliate of ORPS. CP’s control of CMQR was authorized in Soo available at www.stb.gov. Line Corp.—Control—Central Maine & Quebec Decided: May 11, 2020. Railway US, FD 36368 (STB served May 4, 2020).

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By the Board, Allison C. Davis, Director, notices including: 82 FR 40213 (August of the Chinese-origin product covered Office of Proceedings. 23, 2017), 83 FR 14906 (April 6, 2018), by the specific exclusion request Aretha Laws-Byrum, 83 FR 28710 (June 20, 2018), 83 FR purchased in 2018, the first half of 2018, Clearance Clerk. 32181 (July 11, 2018), 83 FR 67463 and the first half of 2019, and whether [FR Doc. 2020–10428 Filed 5–14–20; 8:45 am] (December 28, 2018), 84 FR 11152 these purchases are from a related BILLING CODE 4915–01–P (March 25, 2019), 84 FR 16310 (April company; whether Chinese suppliers 18, 2019), 84 FR 21389 (May 14, 2019), have lowered their prices for products 84 FR 25895 (June 4, 2019), 84 FR 32821 covered by the exclusion following the OFFICE OF THE UNITED STATES (July 9, 2019), 84 FR 43304 (August 20, imposition of duties; the value and TRADE REPRESENTATIVE 2019), 84 FR 46212 (September 3, 2019), quantity of the product covered by the 84 FR 49564 (September 20, 2019), 84 exclusion purchased from domestic and Notice of Product Exclusion FR 52567 (October 2, 2019), 84 FR third country sources in 2018, the first Extensions: China’s Acts, Policies, and 58427 (October 31, 2019), 84 FR 70616 half of 2018 and the first half of 2019; Practices Related to Technology (December 23, 2019), 84 FR 72102 the commenter’s gross revenue for 2018, Transfer, Intellectual Property, and (December 30, 2019), 85 FR 6687 the first half of 2018, and the first half Innovation (February 5, 2020), 85 FR 12373 (March of 2019; whether the Chinese-origin 2, 2020), 85 FR 16181 (March 20, 2020), product of concern is sold as a final AGENCY: Office of the United States and 85 FR 24081 (April 30, 2020). product or as an input; whether the Trade Representative. Effective July 6, 2018, the U.S. Trade imposition of duties on the products ACTION: Notice of product exclusion Representative imposed additional 25 covered by the exclusion will result in extensions. percent duties on goods of China severe economic harm to the commenter classified in 818 8-digit subheadings of SUMMARY: Effective July 6, 2018, the U.S. or other U.S. interests; and any the Harmonized Tariff Schedule of the Trade Representative imposed additional information in support or in United States (HTSUS), with an additional duties on goods of China opposition of the extending the approximate annual trade value of $34 with an annual trade value of exclusion. billion. See 83 FR 28710 (the $34 billion The March 2 notice required the approximately $34 billion as part of the action). The U.S. Trade Representative’s submission of comments no later than action in the Section 301 investigation determination included a decision to April 12, 2020. of China’s acts, policies, and practices establish a process by which U.S. related to technology transfer, B. Determination To Extend Certain stakeholders could request exclusion of intellectual property, and innovation. Exclusions particular products classified within an The U.S. Trade Representative initiated 8-digit HTSUS subheading covered by Based on evaluation of the factors set the exclusion process in July 2018 and, the $34 billion action from the out in the July 11 notice and March 2 to date, has granted 10 sets of exclusions additional duties. The U.S. Trade notice, which are summarized above, under the $34 billion action. The fourth Representative issued a notice setting pursuant to sections 301(b), 301(c), and set of exclusions was published in May out the process for the product 307(a) of the Trade Act of 1974, as 2019 and will expire in May 2020. On exclusions and opened a public docket. amended, and in accordance with the March 12, 2020, the U.S. Trade See 83 FR 32181 (the July 11 notice). advice of the interagency Section 301 Representative established a process for In May 2019, the U.S. Trade Committee, the U.S. Trade the public to comment on whether to Representative granted a set of Representative has determined to extend particular exclusions granted in exclusion requests, which expire on extend certain product exclusions May 2019 for up to 12 months. This May 14, 2020. See 84 FR 21389 (the May covered by the May 14 notice, as set out notice announces the U.S. Trade 14 notice). On March 2, 2020, the U.S. in the Annex to this notice. Representative’s determination to Trade Representative invited the public The March 2 notice provided that the extend certain exclusions until to comment on whether to extend by up U.S. Trade Representative would December 31, 2020. to 12 months, particular exclusions consider extensions of up to 12 months. DATES: The product exclusion granted in the May 14 notice. See 85 FR In light of the cumulative effect of extensions announced in this notice 12373 (the March 2 notice). current and possible future exclusions will apply as of May 14, 2020, and Under the March 2 notice, or extensions of exclusions on the extend until December 31, 2020. U.S. commenters were asked to address effectiveness of the action taken in this Customs and Border Protection will whether the particular product and/or a investigation, the U.S. Trade issue instructions on entry guidance and comparable product is available from Representative has determined to implementation. sources in the United States and/or in extend the exclusions in the Annex to FOR FURTHER INFORMATION CONTACT: For third countries; any changes in the this notice for less than 12 months— general questions about this notice, global supply chain since July 2018 until December 31, 2020. To date, the contact Assistant General Counsels with respect to the particular product, U.S. Trade Representative has granted Philip Butler or Benjamin Allen, or or any other relevant industry more than 6,200 exclusion requests, has Director of Industrial Goods Justin developments; and efforts, if any, extended some of these exclusions, and Hoffmann at (202) 395–5725. For importers or U.S. purchasers have may consider further extensions of specific questions on customs undertaken since July 2018 to source the exclusions. Furthermore, more than classification or implementation of the product from the United States or third 8,600 requests are pending on the product exclusions identified in the countries. products covered by the action taken on Annex to this notice, contact In addition, commenters who were August 20, 2019. The U.S. Trade [email protected]. importers and/or purchasers of the Representative will take account of the SUPPLEMENTARY INFORMATION: products covered by an exclusion were cumulative effect of exclusions in asked to provide information regarding considering the possible further A. Background their efforts since July 2018 to source extension of the exclusions covered by For background on the proceedings in the product from the United States or this notice, as well as possible this investigation, please see prior third countries; the value and quantity extensions of exclusions of other

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products covered by the action in this (described in statistical reporting number SUPPLEMENTARY INFORMATION: Notice is investigation. The U.S. Trade 8481.90.9040) hereby given that FHWA has taken final Representative’s determination also (25) Retainers, of steel, designed for use in agency actions by issuing a Finding of takes into account advice from advisory hydraulic solenoid control valves (described No Significant Impact (FONSI) for the in statistical reporting number 8481.90.9040) committees and any public comments (38) Stereoscopic microscopes, not following highway project in the State concerning extension of the pertinent provided with a means for photographing the of Rhode Island: Reconstruction of the exclusion. image, valued not over $500 per unit Pell Bridge Approaches in the City of In accordance with the July 11 notice, (described in statistical reporting number Newport. The proposed action includes the exclusions are available for any 9011.10.8000) realignment of the Pell Bridge ramps product that meets the description in (39) Adapter rings, tubes and extension and associated approach roads to sleeves, stands and arm assemblies, stages improve traffic circulation, reduce the Annex, regardless of whether the and gliding tables, eyeguards and focusing importer filed an exclusion request. queuing and improve safety; reconnect racks, all the foregoing designed for use with neighborhoods including improved Further, the scope of each exclusion is compound optical microscopes (described in governed by the scope of the 10-digit statistical reporting number 9011.90.0000) vehicle, pedestrian and bicycle HTSUS headings and product connectivity; and support economic descriptions in the Annex to this notice, Joseph Barloon, development by maximizing land area and not by the product descriptions set General Counsel, Office of the United States available for redevelopment. out in any particular request for Trade Representative. The actions by FHWA, and the laws exclusion. [FR Doc. 2020–10456 Filed 5–14–20; 8:45 am] under which such actions were taken, BILLING CODE 3290–F0–P are described in the Environmental As set out in the Annex, the U.S. Assessment (EA) for the project Trade Representative has determined to approved on November 21, 2019, and a extend, until December 31, 2020, the DEPARTMENT OF TRANSPORTATION Finding of No Significant Impact following exclusions granted under the (FONSI) issued on April 20, 2020, and May 14, 2019 notice under heading Federal Highway Administration in other documents in the project 9903.88.08 and under U.S. note 20(k) to records. The EA, FONSI, and other subchapter III of chapter 99 of the Notice of Final Federal Agency Actions project records are available by HTSUS: (4), (5), (8), (11), (18), (19), (21), on Proposed Highway Project in contacting FHWA or the Rhode Island (22), (23), (24), (25), (38), and (39). Rhode Island Department of Transportation at the addresses provided above. The EA and Annex AGENCY: Federal Highway Administration (FHWA), Department of FONSI can be viewed and downloaded Effective with respect to goods entered for from the project website at: consumption, or withdrawn from warehouse Transportation (DOT). for consumption, on or after 12:01 a.m. www.pellbridge-ea.com. ACTION: Notice of limitation on claims This notice applies to all Federal eastern daylight time on July 6, 2018, and for judicial review of actions by FHWA. before December 31, 2020, the additional agency decisions as of the issuance date duties provided for in heading 9903.88.01 SUMMARY: This notice announces actions of this notice and all laws under which shall not apply to products which are taken by the FHWA that are final such actions were taken, including but provided for in heading 9903.88.08 and U.S. pursuant to the statute. The actions not limited to: notes 20(k)(4), 20(k)(5), 20(k)(8), 20(k)(11), relate to a proposed highway project, 1. General: National Environmental 20(k)(18), 20(k)(19), 20(k)(21), 20(k)(22), Policy Act (NEPA) [42 U.S.C. 4321, et 20(k)(23), 20(k)(24), 20(k)(25), 20(k)(38) and Reconstruction of the Pell Bridge Approaches in the City of Newport in seq.]; Federal-Aid Highway Act [Title 20(k)(39) to subchapter III of chapter 99 of 23] and associated regulations [CFR part the HTSUS, as follows: the State of Rhode Island. 23]. (4) 8481.10.0090 DATES: By this notice, FHWA is advising 2. Hazardous Materials: (5) 8483.50.9040 the public of final agency actions (8) Filtering or purifying machinery or Comprehensive Environmental subject to 23 U.S.C. 139(1)(1). A claim Response, Compensation, and Liability apparatus of a kind used for waste water seeking judicial review of the Federal treatment (described in statistical reporting Act [42 U.S.C. 9601–9675]; Superfund agency actions on the highway project number 8421.21.0000) Amendments and Reauthorization Act (11) Air purification equipment, will be barred unless the claim is filed of 1986 [Pub. L. 99–499]; Resource electrically powered, weighing less than 36 on or before October 13, 2020. If the Conservation and Recovery Act [42 kg (described in statistical reporting number Federal law that authorizes judicial U.S.C. 6901–6992(k)]; Solid Waste 8421.39.8015) review of a claim provides a time period Disposal Act, as amended by the (18) Armatures designed for use in of less than 150 days for filing such hydraulic solenoid valves (described in Resource Conservation and Recovery claim, then that shorter time period still Act of 1976 (42 U.S.C. 6901, et seq.). statistical reporting number 8481.90.9040) applies. (19) C-poles, of steel, designed for use in 3. Air: Clean Air Act, [42 U.S.C. 7401– FOR FURTHER INFORMATION CONTACT: hydraulic solenoid control valves (described For 7671(q)] (transportation conformity) in statistical reporting number 8481.90.9040) FHWA: Mr. Carlos E. Padilla-Fresse, 4. Noise: 23 U.S.C. 109(i) . (21) Metering spools, of aluminum, MSCE, Program Delivery Supervisor, 5. Wildlife: Endangered Species Act designed for use in hydraulic solenoid Federal Highway Administration Rhode [16 U.S.C. 1531–1544]; Fish and control valves (described in statistical Island Division, 380 Westminster Mall, Wildlife Coordination Act [16 U.S.C. reporting number 8481.90.9040) Suite 601, Providence, Rhode Island 661–667(e)]; Migratory Bird Treaty Act (22) Metering spools, of steel, designed for 02903: telephone: (401) 528–4577; [16 U.S.C. 703–712]; Plant Protection use in hydraulic solenoid control valves email: [email protected]; or Ms. Act [7 U.S.C. 7701 et seq.]. (described in statistical reporting number Lori Fisette, Acting Administrator of 6. Historic and Cultural Resources: 8481.90.9040) (23) Poles, of steel, designed for use in Project Management, Rhode Island Section 106 of the National Historic hydraulic solenoid control valves (described Department of Transportation, Two Preservation Act of 1966, [54 U.S.C. in statistical reporting number 8481.90.9040) Capitol Hill, Providence, Rhode Island 306108]; Archeological Resources (24) Push pins, of steel, designed for use 02903–1124, telephone: (401) 563–4401, Protection Act of 1977 [16 U.S.C. in hydraulic solenoid control valves email: [email protected]. 470(aa)–470(mm)]; Archeological and

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Historic Preservation Act [16 U.S.C. SUMMARY: On July 6, 2017, PHMSA • FC 2707—sets forth the 469–469 c–2]; Native American Grave published in the Federal Register an requirements for the transportation of Protection and Repatriation Act [25 administrative determination that hazardous materials; U.S.C. 3001–3013]. Federal hazardous material • FC 2707.3—prohibits the 7. Land: Section 4(f) of The transportation law preempts, in part, transportation of hazardous materials in Department of Transportation Act: [49 FDNY’s permit, inspection, and fee quantities requiring a permit without U.S.C. 303; 23 U.S.C. 138] Farmland requirements. FDNY has petitioned for such permit; Protection Policy Act (FPPA) [7 U.S.C. reconsideration of that determination. • FC 2707.4 and 105.6—sets forth 4201–4209]. FDNY’s petition for reconsideration is permit requirement and exclusions; • 8. Wetlands and Water Resources: granted in part, and denied in part, as FDNY Rule 2707–02—sets forth Clean Water Act [33 U.S.C. 1251–1387]; follows: routing, timing, escort, and other Flood Disaster Protection Act [42 U.S.C. 1. Permit and Inspection requirements for the transportation of 4012a 4106]. Requirement—PHMSA affirms its hazardous materials; provides that 9. Executive Orders: E.O. 11990 determination that the HMTA preempts permit holders need not conform to Protection of Wetlands; E.O. 12898, FDNY’s permit and inspection these requirements; and • FC Appendix A, Section A03.1(39) Federal Actions to Address requirements, FC 2707.4 and 105.6, with and (67)—specifies the permit Environmental Justice in Minority respect to vehicles based outside the (inspection and re-inspection) fees. Populations and Low Income inspecting jurisdiction, and its Populations; E.O. 11988 Floodplain The following parties submitted determination that the HMTA does not comments in the proceeding: ATA, Management; E.O. 13175 Consultation preempt these requirements with FDNY, Nouveau, Inc., and the American and Coordination with Indian Tribal respect to vehicles that are based within Coatings Association. On July 6, 2017, Governments. the inspecting jurisdiction. PHMSA’s PHMSA published in the Federal (Catalog of Federal Domestic Assistance determination is based on its conclusion Register its determination with respect Program Number 20.205, Highway that FDNY’s permit and inspection to ATA’s application, in accordance Planning and Construction. The requirements create an obstacle to with 49 U.S.C. 5125(d) and 49 CFR regulations implementing Executive accomplishing and carrying out the 107.203. Preemption Determination 37– Order 12372 regarding HMR’s prohibition against unnecessary R (PD–37(R)), 82 FR 31390. PHMSA intergovernmental consultation on delays in the transportation of found that Federal hazardous material Federal programs and activities apply to hazardous material on vehicles based transportation law preempts the FDNY this program.) outside the inspecting jurisdiction. requirements as follows: (Authority: 23 U.S.C. 139(1)(1)) 2. Permit Fee—Based on new 1. Permit and Inspection information supplied by FDNY, PHMSA Requirement—FDNY’s permit and Issued on: May 7, 2020. reverses its determination that FDNY is Carlos C. Machado, inspection requirements, FC 2707.4 and not using the revenue it collects from its 105.6 (transportation of hazardous FHWA Rhode Island Division Administrator, permit fee for authorized purposes. Providence, Rhode Island. materials), create an obstacle to However, PHMSA affirms its accomplishing and carrying out the [FR Doc. 2020–10204 Filed 5–14–20; 8:45 am] determination that the permit fee is not HMR’s prohibition against unnecessary BILLING CODE 4910–22–P ‘‘fair,’’ as required by 49 U.S.C. delays in the transportation of 5125(f)(1), and therefore affirms its hazardous material on vehicles based determination that the permit fee is DEPARTMENT OF TRANSPORTATION outside the inspecting jurisdiction. preempted. Accordingly, we determined that the Pipeline and Hazardous Materials FOR FURTHER INFORMATION CONTACT: HMTA preempts FDNY’s permit and Safety Administration Vincent Lopez, Office of Chief Counsel, inspection requirements with respect to Pipeline and Hazardous Materials Safety vehicles based outside the inspecting [Docket No. PHMSA–2014–0003; PD–37(R)] Administration, U.S. Department of jurisdiction, but that the HMTA does not preempt those requirements with Hazardous Materials: New York City Transportation, 1200 New Jersey respect to motor vehicles that are based Permit Requirements for Avenue SE, Washington, DC 20590; within the inspecting jurisdiction. PD Transportation of Certain Hazardous Telephone No. 202–366–4400; 37(R), 82 FR at 31393–31395. Materials Facsimile No. 202–366–7041. 2. Permit Fee—The permit fee is SUPPLEMENTARY INFORMATION: AGENCY: Pipeline and Hazardous preempted because we determined that Materials Safety Administration I. Background FDNY had not shown that the fee it imposes with respect to its permit and (PHMSA), DOT. A. Preemption Determination ACTION: Decision on petition for inspection requirements is ‘‘fair’’ and reconsideration of an administrative The American Trucking Associations, ‘‘used for a purpose related to determination of preemption. Inc. (ATA) applied to PHMSA for a transporting hazardous material,’’ as determination of whether Federal required by 49 U.S.C. 5125(f)(1). PD Petitioner: The Fire Department of the hazardous material transportation law, 37(R), 82 FR at 31395–31396 City of New York (FDNY). 49 U.S.C. 5101 et seq., preempts the City PHMSA, in Part I of PD–37(R), Local Law Affected: New York City of New York (FDNY)’s requirement that discussed the standards for making Fire Code (FC) 2707.4 and 105.6. those wishing to transport hazardous determinations of preemption under the Applicable Federal Requirements: materials by motor vehicle must, in Federal hazardous material Federal hazardous material certain circumstances, obtain a permit. transportation law. Id. at 31392–3. As transportation law (HMTA), 49 U.S.C. The relevant provisions of the FC and we explained, unless there is specific 5101 et seq., and the Hazardous the FDNY rules regarding FDNY’s authority in another Federal law or DOT Materials Regulations (HMR), 49 CFR hazardous materials inspection and grants a waiver, a requirement of a State, parts 171–180. permitting program, and related fees, political subdivision of a State, or Mode Affected: Highway. include: Indian tribe is preempted if:

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—It is not possible to comply with both submitted comments in the proceeding. Third, ‘‘when applied to vehicles the State, local, or tribal requirement Thereafter, we received a request from based outside of the inspecting and a requirement in the Federal ATA for a 22-day extension of time to jurisdiction, a State or local periodic hazardous material transportation law file its comments to FDNY’s petition. inspection requirement has an inherent or regulations; We granted ATA’s request, and potential to cause unnecessary delays —The State, local, or tribal requirement, instructed ATA to file its comments on because the call and demand nature of as applied or enforced, is an or before November 6, 2017. ATA timely common carriage makes it impossible to ‘‘obstacle’’ to accomplishing and submitted its comments. predict in advance which vehicles may carrying out the Federal hazardous FDNY, in its petition, challenges be needed for a pick-up or delivery material transportation law or PHMSA’s findings that its inspection within a particular jurisdiction and regulations; or and permit requirements, and the impractical to have all vehicles —The State, local, or tribal requirement associated permit fee, are preempted. inspected every year.’’ Id. concerns any of five specific subjects FDNY presents four arguments for why Fourth, ‘‘a State or local government and is not ‘‘substantively the same as’’ it believes the agency should reconsider may apply an annual inspection a provision in the Federal hazardous and reverse its decision: requirement to trucks based outside its material transportation law or • The permit and inspection program jurisdictional boundaries only if [it] can regulations. Id. (citing 49 U.S.C. is valid because it addresses an issue of actually conduct the equivalent of a 5125(a)–(b)). foremost local concern, i.e., the public ‘spot’ inspection upon the truck’s arrival In addition, a State, political safety of FDNY residents; within the local jurisdiction,’’ and ‘‘may subdivision of a State, or Indian tribe • The inspection requirement is not not require a permit or inspection for may impose a fee related to transporting an obstacle because it does not cause trucks that are not based within the hazardous material ‘‘only if the fee is unnecessary delay; local jurisdiction if the truck must fair and used for a purpose related to • The fee is fair and used for interrupt its transportation of hazardous transporting hazardous material, appropriate purposes; and materials for several hours or longer in including enforcement and planning, • PHMSA’s decision in this order for an inspection to be conducted developing, and maintaining a proceeding is inconsistent with the and a permit to be issued.’’ Id. capability for emergency response.’’ Id. ruling by the agency’s predecessor in a (alterations omitted). at 31393 (citing 49 U.S.C. 5215(f)(1)). prior waiver of preemption proceeding. In setting forth these principles, PHMSA discussed three prior These preemption provisions stem II. Discussion from congressional findings that State, determinations: (1) A determination that local, or tribal requirements that vary A. Inspection and Permit Requirement a town’s permit requirement was from Federal hazardous material preempted with respect to vehicles In PD–37(R), PHMSA explained that based outside the town, PD–28(R), transportation law and regulations can although State or local governments create ‘‘the potential for unreasonable Town of Smithtown, New York may generally conduct inspections of Ordinance of Transportation of hazards in other jurisdictions and motor carriers to assure compliance confound[ ] shippers and carriers which Liquefied Petroleum Gas, 67 FR 15276 with Federal requirements for the (Mar. 29, 2002); (2) a determination that attempt to comply with multiple and transportation of hazardous materials, conflicting . . . regulatory a county’s permit requirement was such inspections must not conflict with preempted with respect to vehicles requirements,’’ and that safety is the Federal requirement that: advanced by ‘‘consistency in laws and based outside the county, but not with regulations governing the transportation All shipments of hazardous materials must respect to vehicles based within the be transported without unnecessary delay, of hazardous materials[.]’’ Public Law county, PD–13(R), Nassau County, New from and including the time of York, Ordinance on Transportation of 101–615 sections 2(3) and 2(4), 104 Stat. commencement of the loading of the 3244 (Nov. 16, 1990). In PD–37(R), Liquefied Petroleum Gases, 63 FR 45283 hazardous material until its final unloading (Aug. 25, 1998), on reconsideration, 65 PHMSA also explained that its at destination. FR 60238 (Oct. 10, 2000); and (3) a [p]reemption determinations do not address PD–37(R), 82 FR at 31394 (citing 49 CFR determination that a State’s inspection issues of preemption arising under the 177.800(d)). PHMSA explained that its requirement was preempted, PD–4(R), Commerce Clause, the Fifth Amendment or prior decisions have established several California Requirements Applicable to other provisions of the Constitution, or key principles in this area. statutes other than the Federal hazardous Cargo Tanks Transporting Flammable material transportation law unless it is First, while ‘‘travel and wait times and Combustible Liquids, 58 FR 48933 necessary to do so in order to determine associated with an inspection are not (Sept. 20, 1993), on reconsideration, 60 whether a requirement is authorized by generally considered unnecessary FR 8800 (Feb. 15, 1995). another Federal law, or whether a fee is delays . . .[,] a delay of hours or days Consistent with these principles, ‘‘fair’’ within the meaning of 49 U.S.C. . . . is unnecessary, because it PHMSA determined that FDNY’s permit 5125(f)(1). substantially increases the time and inspection requirements are not PD–37(R), 82 FR at 31393. hazardous materials are in preempted with respect to vehicles transportation, increasing exposure to based within New York City, but are B. Petition for Reconsideration the risks of the hazardous materials preempted with respect to vehicles FDNY contacted PHMSA, within the without corresponding benefit.’’ Id. based outside New York City. PD–37(R), 20-day time period provided in 49 CFR Second, ‘‘a State’s annual inspection 82 FR at 31394–95. With respect to the 107.211(a), and requested a 60-day requirement applied to vehicles that latter category, PHMSA noted (among extension of time in which to file a operate solely within the State is other things) that the single facility at petition for reconsideration. We granted presumptively valid,’’ as a ‘‘carrier which the FDNY performs inspections FDNY’s request, and set a new filing whose vehicles are based within the is only open weekdays until 3:00 p.m., deadline. FDNY timely filed its petition inspecting jurisdiction should be able to and that ‘‘an unpermitted motor carrier for reconsideration on September 25, schedule an inspection at a time that based outside FDNY’s jurisdiction 2017. FDNY sent a copy of its petition does not disrupt or unnecessarily delay would have no recourse when it arrives to each person who had previously deliveries.’’ Id. to pick up or deliver hazardous

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materials in the City ([which] requires a First, FDNY ignores the fact that explained that the President’s permit) and discovers that the [facility] Congress has expressly provided that memorandum sets forth the policy ‘‘that is closed.’’ Id. at 31394. PHMSA noted, state and local laws are preempted if preemption of State law by executive moreover, that there was no evidence they create an obstacle to carrying out departments and agencies should be that FDNY can perform ‘‘spot’’ a provision of the HMRs. When a undertaken only with full consideration inspections at the roadside, and that ‘‘statute contains an express pre- of the legitimate prerogatives of the ‘‘fleet inspections at a motor carrier’s emption clause, [courts] do not invoke States and with sufficient legal basis for own facility appear to be impractical any presumption against pre-emption preemption.’’ Id. Furthermore, we where the facility is located outside the but instead focus on the plain wording acknowledged that E.O. 13132 City’s jurisdiction.’’ Id. Thus, PHMSA of the clause, which necessarily authorizes preemption of State law only concluded that ‘‘FDNY’s permit and contains the best evidence of Congress’ when a statute contains an express inspection requirements create an pre-emptive intent.’’ Puerto Rico v. preemption provision. More obstacle to accomplishing and carrying Franklin California Tax-Free Trust, 136 importantly, we noted that the HMTA out the HMR’s prohibition against S. Ct. 1938, 1946 (2016) (quotations contains express preemption provisions, unnecessary delays in the transportation omitted). And even if a presumption which we have implemented through of hazardous materials on vehicles against preemption did apply here, it regulations. As such, PHMSA’s legal based outside of the inspecting would easily be rebutted by the express authority to make preemption jurisdiction.’’ Id. at 31395. command of Congress. determinations is expressly authorized Second, although FDNY relies heavily through statute by Congress, and 1. Program Validity Based on Unique on Massachusetts v. DOT, 93 F.3d 890 PHMSA’s preemption determination is Local Conditions (D.C. Cir. 1996), that case demonstrates therefore consistent with both E.O. FDNY argues that the decision the appropriateness of PHMSA’s 13132 and the 2009 memorandum. disregards the ‘‘presumption against analysis here. There, the D.C. Circuit Next, like its position in IR–22, it preemption’’ that it says must be rejected a determination by PHMSA’s appears FDNY misunderstands the applied to its program based on its predecessor that 49 U.S.C. 5125(a)(2)— scope of the analysis required in making unique and important purpose of the same provision at issue here— preemption determinations. As we protecting public safety. FDNY relies on preempted a state law that created an pointed out in the IR–22 decision on prior Supreme Court decisions, DOT obstacle to accomplishing the HMTA’s appeal, consideration of local safety and federal case law, and executive ‘‘general goal of uniform waste concerns is properly conducted during branch orders and guidance on regulation.’’ Id. at 894. The Court did so a waiver of preemption proceeding, not preemption, to justify its program. based on its conclusion that the ‘‘clear a preemption determination proceeding. According to FDNY, the ‘‘presumption intent’’ of Section 5125(a)(2) is to 54 FR at 26704. The correct analysis in against preemption’’ is a rule developed preempt ‘‘state rules that . . . pose an a preemption determination proceeding by the courts to limit federal preemption obstacle to fulfilling explicit provisions, is whether a state or local requirement of local requirements, and in particular, not general policies, of HMTA.’’ Id. at stands as an obstacle to compliance environmental health and safety 895. Although the Court noted a with the federal regulations, not regulations that are generally recognized ‘‘presumption against extending a whether local safety concerns justify a as an area of traditional local control. preemption statute to matters not clearly waiver of preemption. Id. Virtually all Moreover, FDNY argues that since its addressed in the statute in areas of state and local hazardous materials program is limited in scope, i.e., permit traditional state control,’’ Id. at 896, requirements are prompted by safety not required for through traffic,1 it is such a presumption is irrelevant when concerns, but the focus of preemption subject to a ‘‘strong presumption of a matter is ‘‘clearly addressed in the analysis is whether state or local validity.’’ In its argument, FDNY statute’’—i.e., if a state rule ‘‘pose[s] an requirements are inconsistent with appears to rely heavily on the City’s obstacle to fulfilling explicit provisions’’ nationally-applicable requirements, not unique local conditions. According to of the HMTA or its implementing whether local safety concerns should be FDNY, the City’s unique local regulations. And that is exactly what weighed against national concerns. 54 conditions such as ‘‘its high density; its PHMSA has determined here: The FR at 26704. Therefore, FDNY’s safety narrow, congested streets; and its FDNY requirements pose an obstacle to concerns would be appropriate in a unique security concerns’’ justify fulfilling an ‘‘explicit provision’’ of the waiver of preemption proceeding but special local safety rules, and should HMTA regulations, the prohibition on not relevant in this proceeding.2 not be preempted. Thus, FDNY ‘‘unnecessary delay’’ contained in 49 contends that PHMSA failed to properly CFR 177.800(d). 2 The authorities relied on by FDNY are not to the acknowledge and apply the Third, contrary to FDNY’s contrary. In City of New York v. Ritter Transp., Inc., presumption against preemption of local contentions, PHMSA’s determination 515 F. Supp. 663 (S.D.N.Y. 1981) and Nat’l Tank Truck Carriers, Inc. v. City of New York, 677 F.2d safety regulations; failed to accord was in no way inconsistent with 270 (2d Cir. 1982), the courts addressed New York’s proper weight to the fact that its Executive Order (E.O.) No. 13132, routing requirements for hazardous materials, program is narrowly limited in scope to entitled ‘‘Federalism’’ (64 FR 43255 which necessarily are based on local conditions and only vehicles making local deliveries or (Aug. 10, 1999)), or the President’s May which are expressly permitted by the HMTA, see 49 U.S.C. 5112. Those cases do not suggest that pickups; and failed to properly consider 20, 2009 memorandum on New York can rely on local concerns to impose a the unique circumstances of the City ‘‘Preemption’’ (74 FR 24693 (May 22, permit and inspection requirement that poses an with respect to hazardous materials 2009)). As an initial matter, each of obstacle to federal law. And while the agency did transportation. those documents states that it does not note that a Boston regulation allowing the Fire We find FDNY’s arguments Commissioner to impose certain permit ‘‘create any right or benefit, substantive requirements ‘‘may legitimately assist the Fire unpersuasive for the following reasons. or procedural, enforceable’’ against the Commissioner in dealing with unusual local government. In any event, we conditions and emergencies,’’ it found that it could 1 Vehicles in continuous transit through the City specifically stated in our decision that not determine that regulation’s consistency with the without pickup or delivery are not required to have our analysis was guided by the HMTA without information about the specific a permit, but are still subject to routing, time, permit requirements imposed. IR–3, City of Boston escort, and other requirements. See FDNY Rule principles and policies set forth in these Rules Governing Transportation of Certain 2707–02. documents. PD–37(R) at 31393. We Continued

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Last, regarding the jurisdiction’s local that FDNY’s inspection and permit of the shipper, i.e., looking at the conditions, as we discussed in PD– requirements create an obstacle to possibility of delay that arises when a 37(R), we previously addressed a accomplishing and carrying out the shipper must choose a licensed truck preemption challenge to FDNY’s permit HMR’s prohibition against unnecessary when transporting hazardous materials program in Inconsistency Ruling (IR)– delays in the transportation of at night or on weekends. 751 F.2d at 51. 22, City of New York Regulations hazardous materials with respect to However, as we stated in PD–37(R), as Governing Transportation of Hazardous trucks based outside the inspecting well as prior agency precedent Materials, 52 FR 46574 (December 8, jurisdiction. FDNY contends that federal developed since the Flynn decision, an 1987), Decision on Appeal, 54 FR 26698 judicial precedent recognizes that some inquiry into whether non-federal permit (June 23, 1989), where we determined delay is both necessary and acceptable. and inspection requirements interfere that FDNY’s permitting system was with the HMR prohibition against 1. FDNY’s Allegations That PHMSA’s preempted, which was affirmed on unnecessary delay must necessarily Decision Contradicts Federal Case Law appeal. In IR–22, FDNY essentially focus on the delay that may result when asserted the same public safety FDNY argues that our decision a loaded vehicle arrives unannounced argument, i.e., that its regulations are contradicts federal case law. FDNY in the inspecting jurisdiction. ‘‘reasonable safety measures justified by relies on cases from the First Circuit to The Flynn court also misinterpreted its unique combination of conditions emphasize the apparent inconsistency two Inconsistency Rulings issued by the that create exceptional hazards to the of our decision with federal judicial Research and Special Programs transportation of hazmat and high risks precedent, which recognizes that some Administration (RSPA),3 which the of catastrophic consequences in the delay is both necessary and acceptable. Court cited for the proposition that ‘‘a event of an accident.’’ 52 FR at 46577. See N.H. Motor Transport Ass’n v. ‘bare’ permit requirement or license In that proceeding, we rejected this Flynn, 751 F.2d 43 (1st Cir. 1984) (state requirement is consistent with HMTA.’’ argument, because we determined that it license fees required for hazardous 751 F.2d at 51–52. In the first ruling, does not provide an adequate basis on materials and waste transporters not RSPA explained that while a ‘‘bare’’ which to find FDNY’s requirements preempted by the HMTA and did not permit requirement ‘‘is not inconsistent were consistent with the HMTA and violate the commerce clause); see also with Federal requirements,’’ ‘‘a permit HMR. The reasons we gave for rejecting N.H. Motor Transport Ass’n v. Town of itself is inextricably tied to what is this ‘‘unique local concerns’’ argument Plaistow, 67 F.3d 326 (1st Cir. 1995) required in order to get it,’’ and in IR–22 are just as relevant to FDNY’s (town’s zoning ordinance was not therefore determined that the state argument today. For instance, in IR–22 preempted by the HMTA or other permit requirement at issue did create we said, ‘‘virtually every urban and statutes, and did not violate the unnecessary delay. IR–2, State of Rhode suburban jurisdiction in the United commerce clause). We do not find these Island Rules and Regulations Governing States has a population density which is cases persuasive for the following the Transportation of Liquefied Natural a matter of concern in planning for, and reasons. Gas and Liquefied Propane Gas regulating hazmat transportation.’’ The Flynn court conceded that Intended To Be Used by a Public Utility, Moreover, ‘‘consideration of any unique PHMSA’s preemption determinations 44 FR 75566, 75570–71 (December 20, population density of New York City have better developed administrative 1979). In the second ruling, RSPA must be accompanied by consideration records and are thus more informed by merely determined that it could not of the City’s unique location as a the agency’s expertise, and it left open determine whether a permit crossroad for a large percentage of the possibility that ‘‘a different record, requirement created delay. IR–3, City of hazardous materials transportation created before DOT’’ may have led to Boston Rules Governing Transportation between both New England and Long ‘‘different conclusions.’’ Id. at 50, 52 of Certain Hazardous Materials by Island and the rest of the Nation; delays (Notwithstanding the Court’s Highway Within the City, 46 FR 18918, and diversions of such transportation recognition of the agency’s expertise in 18923 (March 26, 1981). are of great concern.’’ 52 FR at 46583. this area, it ultimately chose to proceed In any event, PHMSA disagrees with Finally, it is important to recognize because it favored judicial efficiency FDNY’s claim that its program is even there are other administrative options over prolonged delay in the proceeding less likely to cause delays than the available to FDNY to address its that would likely result from program upheld by the Flynn court. The concerns. For example, if it believes the consultation with DOT. Id. at 51.). Thus, state permits at issue in Flynn were HMR are inadequate, it may file a even if FDNY’s regulations were apparently available at multiple ‘‘border petition for rulemaking with the agency, identical to the regulations at issue in stations,’’ see 751 F.2d at 51, meaning or otherwise participate in other Flynn (which they are not), PHMSA that many drivers could likely obtain PHMSA rulemakings related to these might very well reach a different result permits without diverting from their issues. Or if the FDNY believes its than the First Circuit. Indeed, the intended routes. This type of alleged unique circumstances require a principal basis for the Court’s arrangement may be considered a different regulatory approach, it may decision—that a license requirement for request a waiver of preemption. 52 FR hazardous materials transporters creates 3 Effective February 20, 2005, PHMSA was at 46583; 49 CFR 107.215. no more delay than a requirement that created to further the ‘‘highest degree of safety in drivers be licensed—is not persuasive: pipeline transportation and hazardous materials B. Unnecessary Delay transportation,’’ and the Secretary of Transportation Drivers are not licensed in each state redelegated hazardous materials safety functions FDNY asserts that PHMSA ignored into which they travel, and a driver from the Research and Special Programs federal case law and misapplied its own entering a state will therefore Administration (RSPA) to PHMSA’s Administrator. 49 U.S.C. 108, as amended by the Norman Y. precedent in making its determination experience no delay related to obtaining Mineta Research and Special Programs a driver’s license. See, e.g., 49 U.S.C. Improvement Act (Pub. L. 108–426, 2, 118 Stat. Hazardous Materials By Highway Within the City, 31302 (‘‘An individual operating a 2423 (Nov. 30, 2004)); and 49 CFR 1.96(b), as 46 FR 18918 (Mar. 26, 1981). Similarly here, while commercial motor vehicle may have amended at 77 FR 49987 (Aug. 17, 2012). For New York may certainly rely on local conditions in consistency, the terms ‘‘PHMSA,’’ ‘‘the agency,’’ issuing regulations, those regulations are preempted only one driver’s license at any time.’’). and ‘‘we’’ are used in this decision, regardless of if they create an obstacle to compliance with federal Additionally, the Flynn court framed whether an action was taken by RSPA before law. the legal question from the perspective February 20, 2005, or by PHMSA after that date.

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functionally equivalent option to a spot 37(R), we discussed our prior precedent, truck wished to cross the George or roadside inspection. FDNY’s and acknowledged that vehicle and Washington Bridge and make a delivery program, in contrast, requires drivers container inspections are an integral in Upper Manhattan). without permits to travel to a single part of a program to assure the safe Here, FDNY contends that spot or inspection facility, diverting from their transportation of hazardous materials in roadside inspections are not feasible intended routes by potentially compliance with the HMR. and would raise significant safety significant amounts. Furthermore, we outlined the agency’s concerns. But we have repeatedly held FDNY also relies on Nat’l Tank Truck position regarding these types of that States or localities may sometimes Carriers, Inc. v. City of New York, 677 inspections by highlighting relevant impose requirements, without creating F.2d 270 (2d Cir. 1982) and City of New agency precedent developed through unnecessary delay, if they offer the York v. Ritter Transp., Inc., 515 F. Supp. prior Inconsistency Rulings and equivalent of spot or roadside 663 (S.D.N.Y. 1981) to support its Preemption Determinations. But we also inspections, and have never said that argument that due to the City’s unique said that a local inspection of a vehicle actual spot or roadside inspections are safety considerations, enforcement of or container used to transport hazardous required. FDNY argues that its program certain city regulations promote safety material must not conflict with the offers the equivalent of a spot or and as such, any associated HMR’s prohibition against unnecessary roadside inspection because it offers transportation delays are not delays. In the analysis of the issue in flexible scheduling and because its HCU unnecessary. However, as we noted PD–37(R), we then identified several is now open 7 days a week and offers earlier, these cases involve routing principles related to unnecessary delay ‘‘on demand’’ inspections. Since we requirements, which are specifically based on agency precedent, including issued our decision in this proceeding, allowed by the HMTA, and do not travel and wait times; intrastate and we have confirmed that the HCU is now suggest that the City can rely on local interstate considerations; and program open on the weekends. However, we concerns to impose a permit and flexibility. PD–37(R) at 31393–4. We note that it remains the sole inspection inspection requirement that poses an applied these principles to our analysis facility within the jurisdiction and it obstacle to federal law. Supra at 12 n.2. of FDNY’s program. still closes at 3 p.m. each day. According to FDNY, these operational 2. FDNY’s Allegations That PHMSA’s A state or local periodic inspection changes amount to the functional Decision Is Inconsistent With Agency requirement has an inherent potential to equivalent of a spot or roadside Precedent cause unnecessary delays in the inspection. We disagree. The underlying transportation of hazardous materials principle of a spot inspection is the FDNY claims that our decision is when that requirement is applied to inconsistent with agency precedent as it elimination of delay caused by vehicles based outside of the inspecting travelling to an inspection facility or relates to what is considered an jurisdiction. PD–28(R) at 15279; see also unnecessary delay. According to FDNY, waiting for an inspector to arrive. PD–4(R); PD–13(R). The inherent Previously we have indicated that it estimates that on average, its program potential for unnecessary delay is not only adds about 2 hours of additional options that may be considered eliminated by a flexible scheduling ‘‘functional equivalents’’ may include travel and inspection time for policy. Id. It is the impracticability of unscheduled inspections at its conducting inspections at points of scheduling an inspection that creates entry into the inspecting jurisdiction; Hazardous Cargo Unit (HCU). As such, unnecessary delay. It is the delay in FDNY asserts that a 2-hour delay falls other roadside inspection locations; and deviating from an intended route to terminals. PD–4(R) at 48941. These within the range that DOT previously travel to an inspection facility, and/or determined to be reasonable and options all have the common effect of waiting with a loaded vehicle for the eliminating unnecessary delays by presumptively valid. arrival of an inspector from another Also, FDNY alleges that PHMSA bringing the inspection site closer to a location, that creates unnecessary delay, downplayed the program’s flexibility vehicle loaded with hazardous materials rather than the time waiting in line or regarding on-site fleet inspections and as it enters the inspecting jurisdiction. the inspection time. Id. Contrary to drop-in inspections during the HCU’s FDNY’s primary solution to delays FDNY’s characterization, our precedent business hours, which FDNY says it is caused by its program amounts to does not say that any delay of 1.5 to 2 extending to 7 days a week, starting nothing more than keeping its single hours is ‘‘reasonable and presumptively November 1, 2017.4 Finally, FDNY inspection facility open for a few hours valid,’’ it says that a delay of that length contends that spot or roadside on the weekends. On balance, we do not ‘‘during which a State inspection is inspections are not feasible, would raise believe these changes rise to the level of actually conducted’’ is ‘‘reasonable and significant safety concerns, and are not a functional equivalent of a spot or presumptively valid.’’ PD–13(R) at required because its program is the roadside inspection. 60243. As such, we said in our decision For the reasons stated above, we functional equivalent of a roadside here, and as we have consistently stated believe FDNY misunderstands the inspection. Here, the main premise of in prior proceedings, that unnecessary prohibition against unnecessary delays FDNY’s argument is the proposition that delay would be eliminated if FDNY because its arguments here focus on any additional travel and inspection performed the equivalent of a spot or trying to justify the length of time of a time associated with its program is a roadside inspection upon the delay that may be caused by its reasonable and necessary delay. unannounced arrival of a truck carrying inspection program, rather than Although FDNY is correct that in hazardous materials. PD–37(R) at 31395; implementing changes to its program prior proceedings we have considered supra. If such an inspection took one or that would eliminate unnecessary the length of time involved with a delay, two hours, such delay could perhaps be delays. Here, FDNY estimates that such we disagree with its interpretation of the characterized as ‘‘necessary.’’ But the a delay would only be about 2 hours, agency’s findings in these proceedings same is not true for the delay caused by which it asserts is considered regarding unnecessary delay. In PD– FDNY’s requirement that vehicles drive reasonable and necessary. However, as we explained above, under the 4 In its petition, the FDNY stated that in the to the HCU in Brooklyn to be inspected, future, under a ‘‘pilot program,’’ the HCU will be even if doing so would amount to a unnecessary delay requirement, 49 CFR open for drop-in inspections on weekends. significant re-routing (for example, if a 177.800(d), the determinative factor is

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not the amount of time of delay caused FDNY asserts that the program’s every flat tax for the privilege of using by an inspection program, or whether inspection fee, $105 per inspection, is a State’s highways must be upheld even the delay is of a reasonable length. But not excessive. Furthermore, FDNY states if it has a clearly discriminatory effect rather, whether the delay is that the costs of conducting the on commerce. Accordingly, ‘‘imposition unnecessary. Here, FDNY’s single inspections ‘‘exceeds or approximates’’ of the flat taxes for a privilege that is inspection facility with limited revenue from fee collection and that the several times more valuable to a local operating hours revealed an inflexible FDNY spends more money than it business than to its out-of-state program that creates delays in the collects from the program on hazardous competitors is unquestionably transportation of hazardous materials. materials transport emergencies, discriminatory and thus offends the Therefore, we are unpersuaded by including training and equipment for Commerce Clause.’’ Id. at 296; see also, FDNY’s arguments and affirm our emergency response. Therefore, FDNY Am. Trucking Assoc., Inc. v. Secretary finding that, with respect to vehicles contends that its inspection fee is a of State, 595 A.2d 1014, 1017 (Me. based outside the inspection reasonable flat fee since each regulated 1991). jurisdiction, its program is an obstacle vehicle costs the same amount to Furthermore, even if the fee collected to accomplishing and carrying out the inspect, regardless of how many times it does not cover the cost of the program HMR’s prohibition against unnecessary uses local roads, and for that reason, ‘‘a and an apportioned program is not delays in the transportation of graduated fee that reflects road usage is appropriate, as alleged here by FDNY, hazardous materials. not appropriate.’’ ‘‘in-state trucking concerns will be In support of its arguments here, favored more than their interstate C. Permit Fee FDNY submitted expense sheets for FY competitors.’’ Id. Consequently, the In PD–37(R), PHMSA addressed 2015–2017. In addition, FDNY contends burden is on the states to establish that ATA’s contention that FDNY’s permit that PHMSA ‘‘ignores Evansville’s collection of more finely calibrated user fee violates 49 U.S.C. 5125(f)(1), which recognition that a jurisdiction ‘may charges is impracticable. Id. FDNY did provides in relevant part that a impose a flat fee for the privilege of not meet this burden. As noted above, ‘‘political subdivision of a State . . . using its roads, without regard to the apart from its showing that its annual may impose a fee related to transporting actual use by particular vehicles, so long inspection and permitting program hazardous material only if the fee is fair as the fee is not excessive.’ ’’ FDNY typically costs more than the revenue and used for a purpose related to relies on the First Circuit Court of from the fees collected, it failed to hazardous material.’’ PHMSA Appeals’ interpretation of this statement adequately address whether concluded that FDNY’s fee was neither in Evansville, in N.H. Motor Transport apportionment of its fee was ‘‘fair’’ nor ‘‘used for a purpose related to Ass’n v. Flynn, 751 F.2d 43 (1st Cir. impracticable. hazardous material.’’ PD 37(R), 82 FR at 1984) (state license fees required for 2. Fee Used for Appropriate Purposes 31395–96. FDNY challenges both hazardous materials and waste findings. transporters did not violate the We now turn to FDNY’s challenge to our finding that it is not using the fees 1. Fairness of the Fee commerce clause). The Flynn Court, in validating the annual license fee, said it collects under its program in In PD–37(R), PHMSA noted that it that the ‘‘burden of proving accordance with the statutory mandate. had previously determined that it ‘excessiveness’ falls upon the truckers, FDNY’s argument here is that because should determine whether a fee is ‘‘fair’’ not the state[,]’’ and found persuasive the cost to administer the FDNY by using the test articulated by the ‘‘the unrefuted plausibility of significant program generally exceeds the revenues Supreme Court in Evansville- state expense[.]’’ Flynn at 48. collected from the fee, FDNY believes it Vanderburgh Airport Auth. v. Delta The materials FDNY submitted with has demonstrated that the fee satisfies Airlines, Inc., 405 U.S. 707 (1972). its petition, which provided additional the ‘‘used for’’ test. However, before we PD37(R), 82 FR at 31395. PHMSA stated detail about the emergency and other address the merits of FDNY’s argument, that this test, as further clarified by the services provided and their associated it is important to note that under the Court, provides that a fee is reasonable costs would, under the logic of Flynn, HMTA, FDNY has an affirmative if it ‘‘(1) is based on some fair appear to support FDNY’s assertion that obligation to submit a biennial report to approximation of the use of the its annual inspection and permitting DOT on fees that it levies in connection facilities; (2) is not excessive in relation program typically costs more than the with the transportation of hazardous to the benefits conferred; and (3) does revenue from the fees collected. materials. The report must include not discriminate against interstate However, as ATA noted in its comments information about the basis on which commerce.’’ Id. (citing Northwest on the petition, and as we the fee is levied; the purposes for which Airlines, Inc. v. Kent, 510 U.S. 355, 367– acknowledged in PD–22(R), FDNY fails the revenues from the fees are used; the 68 (1994)). PHMSA discussed two prior to recognize that the Court subsequently annual total amount of the revenues instances in which it had found that flat limited its holding in Evansville to collected from the fee; and such other fees were not ‘‘fair’’ when there was no situations where a flat tax is the ‘‘ ‘only matters requested by DOT. See 49 U.S.C. evidence that they were based on a fair practicable means of collecting revenues 5125(f)(2). According to our records, approximation of the use of the roads or from users and the use of a more finely FDNY has consistently failed to comply other facilities within a state. Id. gradated user-fee schedule would pose with this statutory mandate. PHMSA concluded that FDNY’s fee was genuine administrative burdens.’ ’’ PD– Consequently, since FDNY is the only not fair and discriminated against 22(R) at 59403 (quoting Am. Trucking party with the information and data interstate commerce, because ‘‘there is Assoc., Inc. v. Scheiner, 483 U.S. 296, related to its use of the fees, it has the no evidence showing that FDNY’s flat 266, 107 S. Ct. 2829 (1987)). More burden to sufficiently demonstrate it is fee is apportioned to a motor carrier importantly, in Scheiner, the Court using the fees appropriately. based on some approximation of benefit recognized the discriminatory Notwithstanding FDNY’s failure to conferred to the permit holders,’’ and consequences for out-of-state vehicles file the required report, upon review of ‘‘there is no evidence that a more finely that are associated with an the information available to us, we find graduated fee would pose genuine unapportioned flat tax, such as FDNY’s that the supplemental information administrative burdens to the City.’’ fee, and rejected the proposition that provided by FDNY in its petition

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regarding its use of the fee revenue IV. Final Agency Action of a hazardous material that are not appears to show that FDNY is spending In accordance with 49 CFR substantively the same as the the revenue on purposes permitted by 107.211(d), this decision constitutes the requirements of the HMR. Third, the law. Therefore, we are reversing final agency action by PHMSA on PHMSA has determined that the vapor decision with respect to the ‘‘used for’’ ATA’s application for a determination pressure requirement is an obstacle to test. Nevertheless, as discussed above, of preemption as to the FDNY’s accomplishing and carrying out the we are affirming our finding that the fee requirement that those wishing to HMTA. is not fair. transport hazardous materials by motor In addition, PHMSA finds that the administrative record regarding D. Prior Administrative Proceedings vehicle must, in certain circumstances, obtain a permit. This decision becomes Washington State’s Advance Notice of FDNY argues that in a prior ruling, final on the date of publication in the Transfer (ANT) requirement is the agency already indicated that Federal Register. A petition for judicial insufficient to make a determination FDNY’s inspection and permit review of a final preemption whether the requirement is preempted requirements were not preempted. That determination must be filed in the under the HMTA. is patently erroneous. In PD–37 we United States Court of Appeals for the FOR FURTHER INFORMATION CONTACT: extensively discussed these District of Columbia or in the Court of Vincent Lopez, Office of Chief Counsel, proceedings. Furthermore, we explained Appeals for the United States for the Pipeline and Hazardous Materials Safety that these prior proceedings did not circuit in which the petitioner resides or Administration, U.S. Department of involve a direct challenge to FDNY’s has its principal place of business, Transportation, 1200 New Jersey program, or attempt to answer any of the within 60 days after the determination Avenue SE, Washington, DC 20590; arguments that ATA presented in this becomes final. 49 U.S.C. 5127(a). Telephone No. 202–366–4400; Facsimile No. 202–366–7041. proceeding. For example, whether the Issued in Washington, DC, on May 12, City’s inspection and permitting 2020. SUPPLEMENTARY INFORMATION: program requirements, and related fees, Paul J. Roberti, should be preempted because the I. Application Chief Counsel. program causes unnecessary delay and The Applicants have applied to unreasonable cost; whether its fees are [FR Doc. 2020–10489 Filed 5–14–20; 8:45 am] PHMSA for a determination as to fair; and whether FDNY is using the BILLING CODE 4910–60–P whether the HMTA, 49 U.S.C. 5101 et revenue generated from the fees for seq., preempts the State of Washington’s authorized purposes. For these reasons, requirements for crude oil vapor DEPARTMENT OF TRANSPORTATION we do not believe further discussion on pressure and advance notice of transfer our related prior administrative Pipeline and Hazardous Materials for facilities that receive crude oil from proceedings is necessary. Safety Administration a railroad car (hereinafter referred to as Washington’s vapor pressure law or III. Ruling [Docket No. PHMSA–2019–0149; PD–40(R)] VPL). Specifically, the Applicants allege the law, which purports to regulate the For the reasons set forth above, Hazardous Materials: The State of volatility of crude oil loaded or FDNY’s petition for reconsideration is Washington Crude Oil by Rail Volatility unloaded from rail cars in Washington granted in part, and denied in part, as Requirements follows: State, amounts to a de facto ban on AGENCY: Pipeline and Hazardous Bakken 1 crude. PHMSA affirms its determination that Materials Safety Administration The Applicants present several the HMTA preempts FDNY’s permit and (PHMSA), DOT. arguments for why they believe inspection requirements, FC 2707.4 and Washington’s law should be preempted. 105.6, with respect to vehicles based ACTION: Notice of Administrative Determination of Preemption. First, the Applicants contend that the outside the inspecting jurisdiction, and law’s prohibition on the loading or its determination that the HMTA does Applicants: The State of North Dakota unloading of crude oil registering a not preempt these requirements with and the State of Montana (Applicants). vapor pressure greater than 9 pounds respect to vehicles that are based within Local Law Affected: Revised Code of per square inch (psi) poses obstacles to the inspecting jurisdiction. PHMSA’s Washington (RCW), Title 90, Chapter the HMTA because compliance with the determination is based on its conclusion 90.56, Section 90.56.565 (2015), as law can only be accomplished by (1) that FDNY’s permit and inspection amended; Section 90.56.580 (2019). pretreating the crude oil prior to loading requirements create an obstacle to Applicable Federal Requirements: the tank car; (2) selecting an alternate accomplishing and carrying out the Federal Hazardous Material mode of transportation; or (3) HMR’s prohibition against unnecessary Transportation Law (HMTA), 49 U.S.C. redirecting the crude oil to facilities delays in the transportation of 5101 et seq., and the Hazardous outside of Washington State. hazardous material on vehicles based Materials Regulations (HMR), 49 CFR Accordingly, North Dakota and Montana outside the inspecting jurisdiction. parts 171–180. say these avenues for complying with Permit Fee—Based on new Mode Affected: Rail. the law impose obstacles to information supplied by FDNY, PHMSA SUMMARY: PHMSA finds that the HMTA accomplishing the purposes of the reverses its determination that FDNY is preempts Washington State’s vapor HMTA. Similarly, they contend that the not using the revenue it collects from its pressure limit for crude oil loaded or law’s advance notice of transfer permit fee for authorized purposes. unloaded from rail tank cars, for three requirement is an additional obstacle. However, PHMSA affirms its reasons. First, the vapor pressure determination that the permit fee is not requirement constitutes a scheme for 1 According to the Applicants, North Dakota and ‘‘fair,’’ as required by 49 U.S.C. classifying a hazardous material that is Montana are home to the Bakken Shale Formation, a subsurface formation within the Williston Basin. 5125(f)(1), and therefore affirms its not substantively the same as the HMR. It is one of the top oil-producing regions in the determination that the permit fee is Second, the vapor pressure requirement country and one of the largest oil producers in the preempted. imposes requirements on the handling world.

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Lastly, North Dakota and Montana materials transportation security regulation the Hazardous Materials Transportation contend that Washington State’s law is or directive issued by the Secretary of Act, the Senate Commerce Committee preempted because aspects of the law Homeland Security is not possible; or ‘‘endorse[d] the principle of preemption are not substantively the same as the (2) the requirement of the State, political in order to preclude a multiplicity of subdivision, or tribe, as applied or enforced, Federal requirements for the is an obstacle to accomplishing and carrying State and local regulations and the classification and handling of this type out this chapter, a regulation prescribed potential for varying as well as of hazardous material. under this chapter, or a hazardous materials conflicting regulations in the area of In summary, the Applicants contend transportation security regulation or directive hazardous materials transportation.’’ S. the State of Washington’s vapor issued by the Secretary of Homeland Rep. No. 1192, 93rd Cong. 2nd Sess. 37 pressure law should be preempted Security.2 (1974). A United States Court of because: Subsection (b)(1) of 49 U.S.C. 5125 Appeals has found uniformity was the • It is an obstacle to the Federal provides that a non-Federal requirement ‘‘linchpin’’ in the design of the Federal hazardous material transportation legal concerning any of the following subjects laws governing the transportation of and regulatory regime; and is preempted—unless authorized by hazardous materials.4 • It is not substantively the same as another Federal law or DOT grants a Administrative Determination of the Federal regulations governing the waiver of preemption—when the non- Preemption classification and handling of crude oil Federal requirement is not Under 49 U.S.C. 5125(d)(1), any in transportation. ‘‘substantively the same’’ as a provision person (including a State, political PHMSA published notice of the of Federal hazardous material subdivision of a State, or Indian tribe) application in the Federal Register on transportation law, a regulation directly affected by a requirement of a July 24, 2019. 84 FR 35707. Interested prescribed under that law, or a State, political subdivision or Indian parties were invited to comment on the hazardous materials security regulation tribe may apply to the Secretary of application. We granted a request by the or directive issued by the Department of Transportation for a determination State of Washington to extend the Homeland Security: original 30-day comment period. The whether the requirement is preempted. initial comment period closed on (A) The designation, description, and The Secretary of Transportation has classification of hazardous material. September 23, 2019, followed by a delegated authority to PHMSA to make (B) the packing, repacking, handling, determinations of preemption.5 rebuttal comment period that remained labeling, marking, and placarding of open until October 23, 2019. PHMSA hazardous material. Alternatively, a person may seek a received 4,118 comments during the (C) the preparation, execution, and use of decision on preemption from a court of initial comment period, and another 279 shipping documents related to hazardous competent jurisdiction instead of comments were submitted during the material and requirements related to the applying to PHMSA. However, once an rebuttal comment period. Generally, the number, contents, and placement of those application is filed with the agency, an comments fall into six categories documents. applicant may not seek judicial relief (D) the written notification, recording, and with respect to the same, or representing a broad array of reporting of the unintentional release in stakeholders, including refineries and substantially the same issue, until the transportation of hazardous material and agency has taken final action on the oil producers, industry groups, other written hazardous materials governmental entities, environmental application or 180 days after filing the transportation incident reporting involving 6 groups, Members of Congress, and other State or local emergency responders in the application. Section 5125(d)(1) requires notice of interested members of the public. The initial response to the incident. an application for a preemption comments are summarized in Part V (E) the designing, manufacturing, determination to be published in the below. fabricating, inspecting, marking, maintaining, reconditioning, repairing, or testing a Federal Register. Following the receipt II. Preemption Under Federal package, container, or packaging component and consideration of written comments, Hazardous Material Transportation that is represented, marked, certified, or sold PHMSA publishes its determination in Law as qualified for use in transporting hazardous the Federal Register.7 A short period of material in commerce.3 time is allowed for filing of petitions for Preemption Standards The preemption provisions in 49 reconsideration.8 A petition for judicial The HMTA has strong preemption U.S.C. 5125 reflect Congress’s long- review of a final preemption provisions that allow the Secretary of standing view that a single body of determination must be filed in the Transportation (Secretary), upon uniform Federal regulations promotes United States Court of Appeals for the request, to make a preemption safety (including security) in the District of Columbia or in the Court of determination as to a non-Federal transportation of hazardous materials. Appeals for the United States for the requirement. 49 U.S.C. 5125 contains Some forty years ago, when considering circuit in which the petitioner resides or express preemption provisions relevant has its principal place of business, to Washington State’s vapor pressure 2 These two paragraphs set forth the ‘‘dual within 60 days after the determination law. Subsection (a) provides that a compliance’’ and ‘‘obstacle’’ criteria that are based becomes final.9 requirement of a State, political on U.S. Supreme Court decisions on preemption. Preemption determinations do not Hines v. Davidowitz, 312 U.S. 52 (1941); Florida subdivision of a State, or Indian tribe is Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 address issues of preemption arising preempted—unless the non-Federal (1963); Ray v. Atlantic Richfield, Inc., 435 U.S. 151 under the Commerce Clause, the Fifth requirement is authorized by another (1978). PHMSA’s predecessor agency, the Research Amendment or other provisions of the Federal law or the Department of and Special Programs Administration, applied these Constitution, or statutes other than the criteria in issuing inconsistency rulings under the Transportation (Department or DOT) original preemption provisions in Section 112(a) of 4 grants a waiver of preemption under the Hazardous Materials Transportation Act, Public Colorado Pub. Util. Comm’n v. Harmon, 951 Law 93–633, 88 Stat. 2161 (Jan. 3, 1975). F.2d 1571, 1575 (10th Cir. 1991). 5125(e)—if: 5 3 To be ‘‘substantively the same,’’ the non-Federal 49 CFR 1.97(b). 6 (1) Complying with a requirement of the requirement must conform ‘‘in every significant 49 U.S.C. 5125(d); 49 CFR 107.203(d). State, political subdivision, or tribe and a respect to the Federal requirement. Editorial and 7 49 CFR 107.209(c). requirement of this chapter, a regulation other similar de minimis changes are permitted.’’ 49 8 49 CFR 107.211. prescribed under this chapter, or a hazardous CFR 107.202(d). 9 49 U.S.C. 5127(a).

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Federal hazardous material RCW 90.56.580 (as amended). condition Bakken crude oil to a vapor transportation law, unless it is necessary In addition, RCW 90.56.565 was pressure of no more than 13.7 psi. The to do so in order to determine whether amended to read, in part: Order requires the operators to separate a requirement is authorized by another (1)(a) A facility that receives crude oil from light hydrocarbons from all Bakken Federal law, or whether a fee is ‘‘fair’’ a railroad car must provide advance notice to crude oil to be transported and prohibits within the meaning of 49 U.S.C. the department that the facility will receive the blending of light hydrocarbons back 5125(f)(1). A State, local or Indian tribal crude oil from a railroad car, as provided in into oil supplies prior to shipment. The requirement is not authorized by this section. The advance notice must NDIC, in setting the State of North another Federal law merely because it is include the route taken to the facility within Dakota’s vapor pressure limit at 13.7 the state, if known, and the scheduled time, not preempted by another Federal location, volume, region per bill of lading, psi, noted that standards-setting 10 statute. In addition, PHMSA does not type, vapor pressure, and gravity as measured organizations set crude oil stability at a generally consider issues regarding the by standards developed by the American vapor pressure of 14.7 psi.12 proper application or interpretation of a petroleum institute, of crude oil received. DOT’s High-Hazard Flammable Train non-Federal regulation, but rather how Each week, a facility that provides advance Rule such requirements are actually ‘‘applied notice under this section must provide the or enforced.’’ Thus, ‘‘isolated instances required information regarding the scheduled On May 8, 2015, PHMSA, in arrival of railroad cars carrying crude oil to coordination with FRA, published the of improper enforcement (e.g., be received by the facility in the succeeding misinterpretation of regulations) do not seven-day period. A facility is not required HHFT final rule to codify requirements render such provisions inconsistent’’ to provide advance notice when there is no to reduce the consequences and with the Federal hazardous material receipt of crude oil from a railroad car probability of accidents involving trains transportation law, but are more scheduled for a seven-day period. transporting large quantities of Class 3 appropriately addressed in the * * * * * flammable liquids.13 PHMSA, in the appropriate State or local forum.11 (4) To further strengthen rail safety and the Notice of Proposed Rulemaking transportation of crude oil, the department (NPRM), indicated that the properties of III. The Washington State Requirements must provide to the utilities and unrefined petroleum-based products, For our purposes here, the relevant transportation commission data reported by including crude oil, are variable based language of the law includes a new facilities on the characteristics, volatility, on time, method, and location of section added to RCW, Chapter 90.56 to vapor pressure, and volume of crude oil extraction. As such, organic materials read: transported by rail, as required under subsection (1)(a) of this section.... from oil and gas production represent a (1)(a) A facility constructed or permitted unique challenge regarding after January 1, 2019, may not load or unload RCW 90.56.565 (as amended) (emphasis classification. At that time, the agency crude oil into or from a rail tank car unless added). also sought public comments on the role the oil has a vapor pressure of less than nine IV. Background Information of vapor pressure in classifying pounds per square inch. flammable liquids and selecting (b) A facility may not load or unload crude A. Vapor Pressure packaging, and asked whether vapor oil into or from a rail tank car unless the oil pressure thresholds should be has a vapor pressure of less than nine pounds No Federal Vapor Pressure Standard established.14 In the final rule, PHMSA per square inch beginning two years after the The HMR requirements for the took a system-wide comprehensive volume of crude oil transported by rail to the classification of unrefined petroleum- approach to rail safety commensurate facility for a calendar year as reported under based products include the proper RCW 90.56.565 has increased more than ten with the risks associated with HHFTs. classification, determination of an percent above the volume reported for For example, the final rule adopted appropriate packing group, and calendar year 2018. several operational requirements selection of a proper shipping name and (2) The director may impose a penalty of relating to speed restrictions, braking description of the material. The HMR up to twenty-five hundred dollars per day systems, and routing. It also adopted per rail tank car or the equivalent volume of contain detailed rules that guide an safety improvements in tank car design oil for violations of this section. Any penalty offeror through each of these steps in standards and notification requirements. recovered pursuant to this section must be the classification process. See generally, And, to ensure the proper classification credited to the coastal protection fund 49 CFR 172.101 (The Hazardous created in RCW 90.48.390. of unrefined petroleum products, a new Materials Table), 173.2–173.41; 173.120, (3) This section does not: (a) Prohibit a regulatory requirement for a sampling 173.121, 173.150, 173.242, 173. 243, and railroad car carrying crude oil from entering and testing program was added to the Part 174 (Railroads). However, as Washington; (b) require a railroad car HMR. explained further below, there is not a carrying crude oil to stop before entering Under the HMR, it is the Washington; or (c) require a railroad car Federal vapor pressure standard for the responsibility of the offeror to ensure carrying crude oil to be checked for vapor classification process for unrefined hazardous materials are properly pressure before entering Washington. petroleum-based products, such as crude oil. 10 Colorado Pub. Util. Comm’n v. Harmon, above, 12 Commenters have suggested that since we are 951 F.2d at 1581 n.10. North Dakota Industrial Commission addressing the State of Washington’s ability to set 11 Preemption Determination (PD)–14(R), Order its own vapor pressure limit, we must also address Houston, Texas, Fire Code Requirements on the the State of North Dakota’s vapor pressure limit. Storage, Transportation, and Handling of Hazardous In December 2014, the North Dakota However, the NDIC conditioning standard is not the Materials, 63 FR 67506, 67510 n.4 (Dec. 7, 1998), Industrial Commission adopted new vapor pressure requirement that is the subject of decision on petition for reconsideration, 64 FR conditioning standards for the transport this preemption matter. Therefore, it is beyond the 33949 (June 24, 1999), quoting from IR–31, scope of this proceeding. Louisiana Statutes and Regulations on Hazardous of Bakken crude oil, stating safety as its 13 Hazardous Materials: Enhanced Tank Car Materials Transportation, 55 FR 25572, 25584 (June rationale. The NDIC Order (Order) sets Standards and Operational Controls for High- 21, 1990), appeal dismissed as moot, 57 FR 41165 forth operating standards guiding the Hazard Flammable Trains, 80 FR 26643 (May 8, (Sept. 9, 1992), and PD–4(R), California use of conditioning equipment to 2015). Requirements Applicable to Cargo Tanks 14 Hazardous Materials: Enhanced Tank Car Transporting Flammable and Combustible Liquids, separate production fluids into gas and Standards and Operational Controls for High- 58 FR 48940 (Sept. 20, 1993), decision on liquid components. The new standard Hazard Flammable Trains, 79 FR 45015 (August 1, reconsideration, 60 FR 8800 (Feb. 15, 1995). requires North Dakota operators to 2014).

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classified.15 PHMSA, in the HHFT final seeking input as to whether there physical, chemical, and combustion rule, stressed the offeror’s responsibility should be national vapor pressure characteristics of the samples, and how to classify and describe properly a thresholds for petroleum products. The these characteristics associate with hazardous material when the agency comment period for the ANPRM closed thermal hazard distances that may be decided to impose a regulation requiring on May 19, 2017. realized in the event of a transportation accident involving a crude oil fire. In a sampling and testing program for Crude Oil Characteristics Research 16 short, the primary conclusion reached unrefined petroleum-based products. (Sandia Study) However, PHMSA did not adopt any from the study was as follows: In 2014, the Department, the U.S. other changes related to vapor pressure. The similarity of pool fire and fireball burn For example, the agency did not Department of Energy (DOE), and characteristics pertinent to thermal hazard mandate specific sampling and testing Transport Canada (TC) commissioned a outcomes of the three oils studied indicate for measuring vapor pressure; it chose review of the chemical and physical that vapor pressure is not a statistically not to set a Federal vapor pressure properties of tight 18 crude oils in order significant factor in affecting these outcomes. standard; and lastly, it decided against to understand whether these properties Thus, the results from this work do not support creating a distinction for crude oils requiring pre-treatment or conditioning could contribute to an increased potential for accidental combustion. based on vapor pressure with regards to these of crude oil to meet a vapor pressure combustion events. standard before the material is offered Vapor pressure was one of the specific for transportation. Notwithstanding the properties the two Federal agencies In light of this conclusion, the fact that PHMSA did not adopt any targeted for research and analysis. Department, DOE, and TC agreed that specific requirements related to vapor Sandia National Laboratories (Sandia) additional data collection, the key focus of Task 4 of the SAE Plan, would not be pressure, the agency indicated its was commissioned to conduct an necessary since the Task 3 results willingness to continue examining the extensive review and analysis, focusing provided a scientific and evidentiary role of vapor pressure in the proper specifically on crude oil’s potential for basis for evaluating the effects of vapor classification of crude oils and other ignition, combustion, and explosion. pressure as it relates to the safe flammable liquids, but cautioned that The review encompassed a wide- transportation of crude oil by rail. As any specific regulatory changes related ranging examination of domestic crude such, the sponsoring agencies officially to vapor pressure would be informed by oil samples varying by type, location, deemed the publication of the Task 3 current and future research, as well as sampling method, and analytical Report as the final stage of the SAE rulemaking procedures to the extent method. DOT, DOE, and TC authorized additional research and undertook a plan, thereby completing the Sandia regulatory action is deemed necessary. multi-phase deliberative approach for Study. DOE submitted a Report to New York State Office of the Attorney examining the characteristics of various Congress in April 2020.20 General Petition and ANPRM crude oils from around the country. The ANPRM Withdrawal final plan was authorized and provided Subsequent to the publication of the PHMSA, after closely examining the HHFT final rule, and despite the for a four-phase study entitled, the Sampling, Analysis, and Experiment results and conclusions of the Sandia operational and safety improvements Study, and in consideration of the codified in the rule, the New York State (SAE) plan. The SAE plan consisted of a set of public comments to the ANPRM from Office of the Attorney General tasks intended to further evaluate industry, stakeholders, and other (NYSOAG) petitioned PHMSA to sampling methods; identify and interested parties, determined that establish a Federal vapor pressure limit evaluate crude oil chemical and issuing any regulation setting a vapor for crude oil transported by rail. physical properties; and engage in data pressure limit for unrefined petroleum- According to NYSOAG, the rule did not collection and analysis. Tasks 1, 2, and based products is not justified, address the primary cause of the large 3 of the plan have been completed: Task reasoning that such a regulation would explosions and uncontrollable fires from 1 consisted of a review and evaluation not lessen risks associated with a series of train accidents involving of new and emerging crude oil transporting crude oil by rail. Bakken crude oil—the volatility of characterization data; Task 2 entailed an Furthermore, the agency determined crude oil itself—due to the abundance evaluation of oil sampling methods; that establishing a vapor pressure limit of combustible gases within the Task 3 included combustion would unnecessarily impede petroleum products. PHMSA received experiments and modeling to assess transportation without providing NYSOAG’s petition on December 1, combustion hazards associated with justifiable benefits. Therefore, on May 2015. The rulemaking petition requested tight and conventional crude oils. 11, 2020, the agency withdrew the that PHMSA establish a vapor pressure Sandia published its report of the January 18, 2017 ANPRM because it limit of less than 9 psi for crude oil results of Task 3 on August 24, 2019.19 determined that the current transported by rail. The petition was The report described the pool fire and classification provisions of the HMR based on the premise that limiting the fireball experiments Sandia conducted adequately address the known hazards material’s vapor pressure would reduce on three different North American crude of Class 3 flammable liquids, including the risk of death or damage from fire or oil samples (including a sample from unrefined petroleum-based products, explosion in the event of an accident. the Bakken region) to study the such as crude oil. Furthermore, the On January 18, 2017, PHMSA issued agency found that a regulation setting a 17 an ANPRM to help the agency assess 18 Tight oil is oil produced from petroleum- national vapor pressure limit for these the merits of prescribing vapor pressure bearing formations with low permeability such as materials is neither necessary nor limits for crude oil. PHMSA, in the the Eagle Ford, the Bakken, and other formations 21 that must be hydraulically fractured to produce oil appropriate. ANPRM, asked a series of questions at commercial rates. Shale is a subset of tight oil. U.S. Energy Information Administration, https:// 20 www.energy.gov/fe/report-congress-crude-oil- 15 49 CFR 173.22. www.eia.gov/tools/glossary/?id=t (last visited characterization-research-study. 16 49 CFR 173.41. February 11, 2020). 21 PHMSA has submitted a Notice of the ANPRM 17 Hazardous Materials: Volatility of Unrefined 19 https://www.osti.gov/biblio/1557808-pool-fire- Withdrawal to the Office of the Federal Register for Petroleum Products and Class 3 Materials, 82 FR fireball-experiments-support-us-doe-dot-tc-crude- official publication. However, there may be a delay 5499 (January 18, 2017). oil-characterization-research-study. in the publication of the Notice in the Federal

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In light of the above summary of the notification must provide information 172; (3) at least one point of contact at regulatory and research activities regarding the estimated volumes and the railroad with knowledge of the concerning vapor pressure, PHMSA, frequencies of train traffic. The railroad’s transportation of affected with its withdrawal of the ANPRM, has notification must also provide a trains; and (4) if the route is subject to now concluded that there is no reasonable estimate of the number of oil spill response plan requirements, the scientific or evidentiary basis for trains that are expected to travel, per notification must include a description regulating the vapor pressure of week, through each county, and the of the response zones and contact unrefined petroleum-based products, expected transportation routes; a information for the qualified individual including crude oil. And although many description of the petroleum crude oil and alternate. Railroads are required to of the commenters in this proceeding and all emergency response update the notifications for changes in have referred to the State of North information, each in accordance with volume greater than twenty-five percent. Dakota’s vapor pressure standard as the the requirements in the HMR; and In the final rule, the agency stated that ‘‘de facto national’’ standard, this contact information for at least one adding these new HHFT information characterization is entirely misplaced point of contact at the railroad. The sharing requirements build upon the given that NDIC’s vapor pressure railroad must update the notifications information sharing framework for regulation is a State-adopted standard when there is a material change (any HHFTs that were initiated at the same that could also be subject to a increase or decrease of twenty-five time as the HHFT rulemaking preemption challenge. percent or more) in the volume of those amendments. The agency noted that trains. together, these requirements will enable B. Advanced Notification of PHMSA, in the NPRM for the HHFT the railroads to work with State officials Transportation rulemaking, proposed to codify and to ensure that safety and security The HMTA and HMR prescribe the clarify the requirements in the planning is occurring. The notification information and documentation Emergency Order. However, based on requirements adopted in the HHFT and requirements for the safe transportation the comments received on the proposed OSRP final rules are important of hazardous materials. This includes notification requirement, the agency did components of the Department’s overall the preparation, execution, and use of not codify the notification requirements comprehensive approach to ensuring shipping documents. Under the HMR, from the Emergency Order. Rather, it the safe transportation of energy offerors of a hazardous material for elected to amend the existing planning products. requirements for transportation by rail transportation are required to prepare a V. Summary and Discussion of the to include HHFT trains. The agency shipping paper (to accompany the Public Comments material while it is in transportation) reasoned that relying on the existing with information describing the route analysis and consultation PHMSA received 4,118 comments material, including the proper shipping requirements of section 172.820 would during the initial comment period, and name, hazard class or division number, provide for consistency of notification another 279 comments were submitted and packing group, as determined by requirements for rail carriers during the rebuttal comment period. the regulations. Emergency response transporting crude oil by seamlessly Generally, there are six categories of information is also required. integrating HHFT trains within the commenters representing a broad array Historically, in general, with the existing hazardous materials regulatory of stakeholders, including refineries and exception of radioactive materials, the scheme. oil producers, industry groups, Federal rules do not require additional Thereafter, Congress enacted the governmental entities, environmental information, documentation, or advance FAST Act 22 which included a mandate groups, Members of Congress, and other notification for the transportation of for the Department to promulgate interested members of the public. Of the regulations requiring advance substantive comments received, the hazardous materials. 24 On May 7, 2014, the Department notification consistent with the majority came from industry groups. issued an Emergency Order requiring notification requirements of the May 7, Several refineries and oil producers also 25 that each railroad carrier provide the 2014, Emergency Order. As such, submitted comments. State Emergency Response Commission PHMSA proposed, and ultimately State and local governments also (SERC) for each State in which it codified those requirements in the Oil submitted comments, both in favor of operates trains transporting one million Spill Response Plan (OSPR) and against preemption of the gallons or more of Bakken crude oil, rulemaking.23 The new provision, Washington State law. The North Dakota Department of Agriculture and including information regarding the Section 174.312, specifies that HHFT the Governor of North Dakota each expected movement of such trains information sharing notification must through the counties in the State. The include: (1) A reasonable estimate of the number of HHFTs that the railroad 24 11 industry groups submitted individual comments, including: American Chemistry Council; Register. Therefore, PHMSA has issued the Notice expects to operate each week, through American Fuel & Petrochemical Manufacturers; on the PHMSA website and posted it to the docket each county within the State or through American Petroleum Institute; the Chlorine on the Regulations.gov website (https:// each tribal jurisdiction; the routes over Institute; Dangerous Goods Advisory Council; www.regulations.gov/docket?D=PHMSA-2016- which the HHFTs will operate; (2) a International Liquid Terminals Association; North 0077). Although PHMSA has taken steps to ensure Dakota Petroleum Council; Railway Supply the accuracy of the version of the Notice posted on description of the hazardous material Institute; Western Independent Refiners the PHMSA website and in the docket, it is not the being transported and all applicable Association; and Western States Petroleum official version. Please refer to the official version emergency response information Association. In addition, the Association of in a forthcoming Federal Register publication, required by subparts C and G of part American Railroads, the American Short Line & which will appear on the websites of each of the Regional Railroad Association, and BNSF Railway Federal Register (https://www.federalregister.gov/) Company submitted a joint comment. and the Government Printing Office 22 Public Law 114–94, 129 Stat. 1312, (December 25 Of the five refineries located in Washington (www.govinfo.gov). After publication in the Federal 4, 2015) Effective Date: October 1, 2015. State, four of the refinery operators submitted Register, the unofficial Notice will be removed from 23 Hazardous Materials: Oil Spill Response Plans comments: BP America; Hess Corporation; PHMSA’s website and replaced with a link to the and Information Sharing for High-Hazard Marathon Petroleum Corporation; and Phillips 66 official version published in the Federal Register. Flammable Trains (FAST Act), HM–251B, NPRM 81 Company. Also, two oil producers submitted PHMSA will also post the official version in docket FR 50068 (July 29, 2016); FR 84 FR 6910 (February comments: Continental Resources and Crestwood no. PHMSA–2016–0077. 28, 2019). Midstream Partners LP.

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submitted a comment in favor of was to preclude a multiplicity of State on a single national standard to govern preemption. Also, the Attorneys General and local regulations, and the potential rail transportation. of Oklahoma, Arkansas, Indiana, for varying as well as conflicting The Oklahoma AG, the North Dakota Louisiana, Nebraska, Ohio, South regulations. Hess argues that while some Department of Agriculture, Montana Dakota, Utah, West Virginia, and States might believe their particular Petroleum Association, and the North Wyoming (AG Alliance for Preemption) rules would be safer than those set forth Dakota Petroleum Council (NDPC), wrote a joint comment in favor of by the HMTA or the HMR, Congress express concern that this type of law preemption.26 The Attorney General specifically rejected a State-by-State permits States with port cities, or points (AG) of Washington and the Spokane regulatory scheme in light of its of access to particular transportation City Council each submitted a comment determination that national uniformity routes or hubs, to dictate national and arguing against preemption. ensures better safety than a patchwork foreign energy policy by imposing A joint comment was submitted by of State and local laws of varying scope similar restrictions that ultimately eight environmental and public interest and degree. impede another State’s ability to move groups, led by Earthjustice.27 There Many of the commenters agree that its natural resources to available were many comments submitted by uniformity is the cornerstone of Federal markets. The Oklahoma AG notes the individuals; the vast majority of which hazardous materials policy, rules, and threat to landlocked States was of were variations of the same form regulation, because it fosters stability heightened concern since other States letter.28 In addition, 32 Members of and ensures hazardous materials are that may decide to employ the same Congress wrote to the Secretary and the transported efficiently and without rationale to deter the shipment of other PHMSA Administrator urging unnecessary delay. The commenters on fuels, such as natural gas from preemption. this topic all agree that the State of Oklahoma, or ethanol from Nebraska, Five substantive rebuttal comments Washington’s law violates the nation’s would cause similar or greater injury were submitted during the rebuttal scheme of uniform regulation for the than Washington State’s vapor pressure comment period. The AG of Washington transportation of hazardous materials. law. submitted a rebuttal comment against a Furthermore, most of the commenters finding of preemption. A joint rebuttal agree that a piecemeal, or patchwork of De Facto Ban comment was also submitted against State-by-State regulations is untenable. Several commenters assert that the preemption from the Attorneys General Crestwood Midstream Partners LP Washington State law amounts to a de of New York, California, Maryland, and (Crestwood) envisions a system of facto ban on Bakken crude oil New Jersey (AG Alliance against regulatory arbitrage where without shipments because crude oil from the Preemption). uniform standards, hazmat (hazardous Bakken region typically has a vapor Three rebuttal comments were in materials) carriers will be forced to pressure in excess of 9 psi. To bolster favor of preemption. The API and the choose routes that avoid jurisdictions this claim, other commenters point out AFPM each submitted a rebuttal with expensive or burdensome that the law’s legislative history clearly comment. The Applicants also compliance requirements. The Railway shows the legislature’s intent to target submitted rebuttal comments. Supply Institute’s Committee on Tank Bakken crude by its frequent references The substantive comments are Cars (RSI–CTC) imagines a scenario to ‘‘Bakken’’ crude—and not any other organized by topic and discussed in the where all fifty States require different types of crude—in its findings and following sections. equipment for transporting hazardous justifications in earlier drafts of the law. Crestwood says the law is a blatant A. Comments Supporting Preemption materials to and from their States, or imposing different classification effort by the legislature to cripple the Goal and Purpose of the HMTA restrictions on crude oil, ethanol, and crude-by-rail trade between the Bakken Many of the commenters express other critical commodities. region and oil refineries located in concern about the precedent Thus, the commenters Washington State under the guise of Washington State’s law could set by overwhelmingly express concern that improving safety. undermining the HMTA’s national the law, if allowed to stand, would Furthermore, commenters assert that scheme of uniform regulation. For encourage other States to impose their Washington State, in setting a vapor example, Hess Corporation (Hess) points own restrictions and requirements, pressure limit of 9 psi, has created a out that the original intent of the HMTA creating a patchwork of requirements separate regulatory regime that applicable to crude oil transport and distinguishes between crude oil with a 26 On December 16, 2019, The AG of Texas sent handling, an outcome that undermines vapor pressure at or below 9 psi, and a letter to PHMSA’s Chief Counsel endorsing the the uniform, comprehensive Federal that with a vapor pressure above 9 psi, views expressed in the comments previously filed regulatory framework that Congress which essentially reclassifies crude oil in the proceeding by the Attorneys General of Oklahoma, Arkansas, Indiana, Louisiana, Nebraska, sought to advance under the HMTA. with a vapor pressure above 9 psi as a Ohio, South Dakota, Utah, West Virginia, and Marathon Petroleum Corporation material ‘‘forbidden’’ from Wyoming. The letter, and PHMSA’s response, have (Marathon) asserts that the law transportation under the HMR. The been uploaded to the proceeding’s docket. undermines the validity of the unified Western States Petroleum Association 27 The environmental and public interest groups, Federal regime governing hazmat (WSPA) agrees with this assessment of included Earthjustice, the Washington Environmental Council, Columbia Riverkeeper, transportation, and upends the justified the law and adds that a separate Friends of the Earth, the Lands Council, Friends of reliance on this regime by companies, regulatory regime will likely foster the San Juans, Friends of the Columbia Gorge, and like itself, that have invested heavily in confusion and frustrate Congress’s goal Oregon Physicians for Social Responsibility. their operations to ensure a stable, of developing a uniform, national 28 During the initial comment period, there were 3,737 form letters from 2,963 discrete commenters. diverse, safe, and high-quality supply of scheme of regulation. There were also 59 comments from private citizens crude oil with which to serve the Pacific Moreover, the Association of that were not form letters. During the rebuttal Northwest. Marathon notes that the American Railroads, the American Short comment period, there were 268 form letters from interstate rail system is particularly Line and Regional Railroad Association, 264 discrete commenters, as well as one comment from a private citizen that was not a form letter. vulnerable in the affected Northwest and BNSF Railway Co. (collectively After the rebuttal period closed, another 6 form region because it and every shipper that AAR) and WSPA indicate that nothing letters were submitted from 5 discrete commenters. utilizes the nation’s rail system depends can be done post-delivery to comply

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with the vapor pressure requirement. preempted. According to the Handling Therefore, the Washington State law commenters, preemption is appropriate effectively bans any transportation of because Washington State’s law WIRA, API, and others believe the high vapor pressure crude oil by rail conflicts with the comprehensive and law’s handling provisions that restrict within the State of Washington, as there technical classifications in the HMR and the loading and unloading of crude oil would be no lawful means under the intrudes on the exclusive Federal role in from rail cars based on vapor pressure State law for unloading the material classifying hazardous materials. limits are not substantively the same as upon its arrival at Washington State the Federal requirements. Moreover, refineries. Description although the commenters acknowledge AFPM believes the law is not that the HMTA does not preempt non- The Dangerous Goods Advisory designed to reduce the number of Federal requirements that purport to Council (DGAC) asserts that the combustion events within the State and only regulate loading and unloading definition of a flammable liquid increase safety, as Washington State operations at facilities after the material imposed by Washington State is not claims, but is instead a backdoor is no longer in transportation, they substantively the same as the definition attempt to prohibit Bakken crude from insist the Washington State law’s scope of the material under the HMR. being refined within the State. is much broader because it regulates all Specifically, DGAC notes that the HMR According to AFPM, prohibiting the loading and unloading at Washington unloading of crude oil with a vapor does not impose a vapor pressure limit on flammable liquids. State facilities, regardless of who pressure above 9 psi will not prevent performs the operations. derailments of crude oil trains or Classification mitigate the damage that such API says it is clear that the law derailments cause. Serious large-scale NDPC and Continental Resources, Inc. regulates the handling of a hazardous impacts related to the transportation of (CLR) express their support for national material in a manner that is not hazmat by rail typically does not occur uniformity and believe that allowing substantively the same as the HMTA. during the loading or unloading phases State specific laws to deviate from the Specifically, API says the law prohibits of the material’s journey. Since the law HMTA’s requirements directly or limits (via caps on volume) the only regulates unloading and undercuts its purpose of assuring a loading and unloading of crude oil from technically exempts transportation of nationally uniform set of regulations rail cars based on vapor pressure, high-vapor pressure crude through its applicable to the transportation of whereas the HMR does not. jurisdiction, AFPM suggests the true hazardous materials in commerce. The Three Avenues of Compliance motivation of this law is to prohibit the Further, they note the HMR are not delivery of Bakken crude to Washington minimum requirements that other Generally, the commenters on this State refineries. jurisdictions may exceed if local topic agree with the Applicants’ notion AFPM further hypothesizes that vapor conditions warrant. Rather, the HMR are that there are only three ways to comply pressure is a red herring here because national standards and must be with Washington State’s vapor pressure Washington State is singling out Bakken uniformly applied across jurisdictional limit for crude-by-rail. As outlined in crude while at the same time ignoring lines. Here, they contend the their application, North Dakota and other Class 3 liquids with lower vapor Washington State law differs in material Montana identified the three avenues of pressures (ethanol, certain isomers of respects from the Federal requirements compliance as (1) pretreating the crude pentane, iso-octane, benzene, toluene, by classifying and regulating the oil prior to loading the tank car; (2) and the xylene isomers), which handling of crude oil based on an selecting an alternate mode of according to AFPM, have similar arbitrary and unscientifically transportation; or (3) redirecting the ignition risks because as flammable determined vapor pressure limit of no crude oil to facilities outside liquids, they can also burn under greater than 9 psi. Washington State. RSI–CTC, WSPA, comparable circumstances. Crestwood, API, and others agree that AAR declares that even if the The Western Independent Refineries transportation risks to Washington Association (WIRA), the AG of requiring compliance with the law State’s citizens were legitimate, the Oklahoma, WSPA, RSI–CTC, AFPM, through pretreating, alternate modes of State cannot export those risks to other AAR, and API seemingly agree with this transportation, or rerouting outside States by limiting transportation of a assessment of the law, as they all assert Washington State would pose disfavored product into its own State at that Washington State’s vapor pressure significant obstacles to the safety and the expense of forcing the transport requirement designates a new class of national uniformity goals of the HMTA. presumably through another State. crude oil based on vapor pressure. The For instance, RSI–CTC states that each commenters reason that the law divides of these methods would likely increase The Description, Classification, and the single classification for crude oil, as the risk of incident or exposure by Handling of Hazardous Materials defined in the HMR, into two groups: unnecessarily extending the distance Hess, AFPM, AAR, and other Crude oil with vapor pressure below 9 and time in transit. Crestwood points commenters assert that the Washington psi; and crude oil with vapor pressure out that hazardous materials are State law attempts to regulate the equal to or exceeding 9 psi. According inherently dangerous and thus must be packaging, handling, and to the commenters, the law effectively transported without unnecessary delay. documentation of crude oil with rules reclassifies crude oil with a vapor And API contends there are no that plainly differ from existing Federal pressure greater than 9 psi, which they commercially and logistically practical regulations. The commenters note that argue essentially designates the material means to adapt to the limitations these areas are covered subjects under as ‘‘forbidden’’ for transportation imposed by the law. Also, API says it the HMTA; and therefore, remark that because it imposes new classification can confirm that the Applicants’ any non-Federal requirement and handling requirements whereas the description concerning the concerning these subjects must be Federal law does not. Others unavailability, undesirability, and substantively the same as the Federal characterize the law as an outright ban impracticality of the potential requirements, or otherwise they must be of Bakken crude oil transport by rail. alternatives, is correct.

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Pretreating vapor pressure limit make pretreating diverting rail shipments to highway cost-prohibitive and simply not feasible. would result in a staggering number of According to the commenters, the Another significant issue the trucks having to replace the current primary issue with pretreating the crude commenters raise is the fact that capacity of crude oil transported via oil to meet Washington State’s 9 psi pretreating will result in a surplus of rail. According to RSI-CTC, it would vapor pressure limit is the lack of the light-end materials separated during the take three motor vehicle cargo tanks to necessary infrastructure and equipment pretreatment process. These higher transport the same amount of product needed to pretreat the crude adequately. vapor pressure hazardous materials, from one rail tank car. In turn, this will NDPC and CLR allege the North Dakota such as butane, ethane, and other necessarily increase the amount of oil and gas industry does not have natural gases, are deemed essential and hazmat shipments on the highway and adequate infrastructure in place to valuable components of Bakken crude, create a greater potential for harm to pretreat crude oil produced in the or as standalone commodities. As such, persons, property, and the environment. Williston Basin 29 to the specifications the commenters explain that these According to API, switching to marine required by the Washington State law. components will likely still need to be vessel is even worse, necessitating a NDPC estimates multiple stages of transported to Washington State via rail circuitous trip through the Panama costly separation equipment and or other available modes. For example, Canal and adding thousands of miles to tankage would need to be installed. API Crestwood predicts an unintended the transportation journey. further explains that currently, oil consequence of the law whereby trains These commenters are all in conditioning is done at the wellsite to departing North Dakota for Washington agreement on this point—whether by comply with the North Dakota State will likely include more tank cars increasing the distance transported, the Industrial Commission’s order,30 but the filled with a greater variety of hazardous number of hazardous materials that will wellsite equipment cannot be used to materials due to pretreating. API echoes need to be transported, the number of reduce consistently the vapor pressure this sentiment, adding that more loading and unloading events, the of Bakken crude to meet Washington shipments will increase the total time in environmental impact of the underlying State’s 9 psi limit. Therefore, API asserts transit and quantity of miles traveled, operations, or by causing unnecessary this would require the processing of the all of which translates to an increased delays—the law presents increased risks oil in a ‘‘fractionator,’’ equipment that it risk of a transportation incident. and is an obstacle to accomplishing and says is not economical to install at every Ultimately, the commenters agree that carrying out the Federal hazmat law. wellsite. Instead, producers would have the additional pretreating requirements to redirect the crude oil to newly would create vast complexities and Sandia Study and Conclusions constructed facilities for processing. additional operational requirements that Commenters contend the Washington According to API, these facilities would would greatly increase costs, lower State law is misguided because its essentially be small scale refineries that efficiency, harm the environment, purported safety justification for would need to be located at several increase transportation, and reduce mandating a vapor pressure limit for points throughout the producing basin. safety. Bakken crude is not supported by science. The commenters point to the This of course, as noted by the Alternate Modes of Transportation; Sandia Study 32 and its recently commenters here, will also result in Rerouting increased handling, and additional reported findings and conclusions. transit time and miles traveled, WIRA, NDPC, and AFPM claim that DGAC, WIRA, NDPC, Marathon, Hess, collectively amounting to increased alternatives to transporting North AFPM, and others, contend that the safety risks. Dakota crude-by-rail, including results of the Sandia Study are transportation via pipeline, truck, or In light of the infrastructure, conclusive, finding that vapor pressure waterway, are simply not feasible. CLR equipment, and other logistical issues, is not a statistically significant factor in states that utilizing alternate modes, or the commenters have concluded that affecting pool fire and fireball rerouting and potentially avoiding pretreating is economically infeasible or characteristics. Crestwood interprets the Washington State altogether, will run unrealistic. According to the Governor findings to mean that Bakken crude afoul of the purpose and thrust of the of North Dakota, the infrastructure with higher vapor pressure is not more HMTA. WIRA also notes that using necessary to comply with the vapor unstable than crudes with lower vapor other modes or rerouting 31 will likely pressure law would add hundreds of pressures. Hess notes the Sandia Study impact neighboring jurisdictions. millions of dollars to the cost of ultimately concluded that all the oil Several commenters point out that all conditioning and transporting. CLR, samples studied have comparable modes of transporting crude oil are not Crestwood, Hess, AFPM, API, and thermal hazard distances and none of equal. API commented that the oil others all agree the various costs that the oils studied indicate outlier industry chose rail transport, and producers would likely incur in order to behavior. These commenters developed the infrastructure to support comply with the Washington State collectively assert that the advancement it, because it is the most efficient and of rail safety is simply not furthered by cost effective means to transport Bakken requiring the alteration of a material’s 29 The Williston Basin is a large ‘‘intracratonic crude oil safely from North Dakota and sedimentary basin’’ in eastern Montana, western vapor pressure. North Dakota, South Dakota, and southern Montana to refineries in Washington Moreover, the commenters claim the Saskatchewan, that is known for its rich deposits of State. Other modes are commercially Sandia Study does not support creating petroleum and potash. The geological basin infeasible and would increase a distinction for crude oils based on underlies the oil producing region known as the complexity and safety concerns. For Bakken. vapor pressure with regard to 30 The North Dakota Industrial Commission Order example, API and RSI-CTC estimate that sets forth operating standards guiding the use of 32 DOT and the U.S. Department of Energy conditioning equipment to separate production 31 Commenters discussing the ‘‘rerouting’’ commissioned Sandia Laboratories to conduct an fluids into gas and liquid components. The compliance option indicate it has many of the same extensive review and analysis of crude oil, focusing standard requires North Dakota operators to issues already identified with respect to the on its chemical and physical properties, and its condition Bakken crude oil to a vapor pressure of alternate mode option, e.g., increased handling, potential for ignition, combustion, and explosion. no more than 13.7 psi. The Order is discussed in additional miles traveled, longer transit times, and The Sandia Study is discussed in more detail in more detail in Section VI. unnecessary delays. Section VI.

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combustion events. According to WIRA, requirements. Furthermore, the AG of Pretreating the recently completed study shows that Washington contends that under the The AG of Washington claims the regulating according to vapor pressure Washington State law’s requirements, Applicants’ pretreatment argument rests distinctions results in no measurable crude oil shipped to Washington State on a double standard, considering the benefits in terms of transportation safety facilities will continue to be classified fact that North Dakota has already as compared to what is already covered as a Class 3 hazardous material in established its own vapor pressure limit under the existing Federal regulations, accordance with the HMR. In addition, through the North Dakota Industrial which are designed to ensure safe he argues that all other requirements Commission (NDIC) order. He asks, if national transportation standards. NDPC (packaging, marking, labeling, and North Dakota can impose a vapor believes that once packaged properly, shipping papers) will remain pressure limit, then why can’t the State vapor pressure levels have no additional unchanged. of Washington do the same? If North impact on the safety effectiveness Dakota’s limit is consistent with the during the shipment of Bakken crude oil Handling HMTA, then why does Washington by rail tank car. State’s limit pose an obstacle? AFPM also avers that vapor pressure The commenters opposing of petroleum crude oil in transportation preemption contend that the vapor Alternate Modes of Transportation has no impact on the frequency of pressure limit is not ‘‘handling’’ subject The AG of Washington and derailments. Furthermore, although API to preemption because it only impacts Earthjustice assert that the Applicants, recognizes the existence of genuine unloading activities at facilities after beyond mere speculation, have not concerns generated by recent high transportation had ended. According to provided any evidence to support their profile rail incidents, it states that the the AG of Washington, the Washington position that a shift in the mode of science, lessons learned, and State Department of Ecology (WADOE) transportation would have implications investigations of those incidents have is purportedly familiar with the for crude oil transit time, distance failed to reveal any casual connection facilities’ unloading protocols. He traveled, number of transloading events, between the vapor pressure of the describes a practice whereby facility accident rates, and other factors that product and the outcomes of the personnel unload crude-by-rail impact the safe transportation of incidents. shipments after the rail carrier delivers hazardous materials. On this point, the RSI-CTC acknowledges that to date, the tank cars and departs. After the commenters insist that a vague allusion PHMSA has not determined that it is facility unloads the crude oil, the rail to implications is not sufficient appropriate to establish a vapor pressure carrier returns and retrieves the empty evidence. standard for crude oil. Furthermore, tank cars. Earthjustice’s description of Rerouting Hess suggests there are other recent the unloading practices at Washington The AG of Washington and studies that support the Sandia Study’s State facilities is the same. Here, the Earthjustice dismiss the Applicants’ finding that characteristics of Bakken descriptions provided by the crude oil are similar to other crude oils. argument that rerouting will create commenters are noteworthy because unnecessary delay in the transportation Accordingly, Hess recommends that they purport to depict unloading PHMSA defer to those studies for of hazardous materials. The AG of operations that appear to be outside the Washington contends that this argument accurate analytic information regarding scope of the HMTA. the safety characteristics of Bakken fails because Washington State’s law crude oil. NDPC suggests the Sandia The Three Avenues of Compliance will have no impact on transit time Study settles any lingering because it addresses loading and uncertainties—that is, vapor pressure The AG of Washington and unloading at Washington State facilities; does not need to be regulated, whether Earthjustice challenge the Applicants’ it does not regulate the movement of through a rulemaking by PHMSA or arguments regarding the three purported crude oil in any other way. legislation from the State of avenues of compliance. Regarding Regulates Facilities, not Transportation pretreatment, the AG of Washington Washington, in order to secure the safe Generally, it is the position of transportation of the subject commodity accuses the Applicants of overgeneralizing and impermissibly commenters opposing preemption that via the nation’s rail network. the Washington State law only regulates speculating when they suggest that all activities performed at in-state facilities. B. Comments Opposing Preemption Washington State-bound crude oil will According to the AG of Washington and The Description, Classification, and need to undergo cost-prohibitive offsite Earthjustice, the law does not impose Handling of Hazardous Materials pretreatment. According to the AG of any requirements on rail carriers and it The AG of Washington and Washington, and supported by will have no direct impact on the Earthjustice commented on the Earthjustice’s comments, the average Applicants. Specifically, regarding the Applicants’ arguments regarding vapor pressure of Bakken crude is 11.81 vapor pressure requirement, Earthjustice classification and handling. Their psi. Moreover, he references a research claims it will have no direct impact on comments on these topics were study that suggests some Bakken rail carriers and that it expressly does essentially the same. wellheads will produce crude oil that not prohibit a railroad car carrying already satisfies the 9 psi limit. crude oil from entering the State; nor Classification Meaning, compliance can likely be does it require the trains to stop or be The commenters attempt to refute the achieved by conditioning the oil, which checked for vapor pressure before Applicants’ argument that the law is relatively cheap. Earthjustice adds entering the State. Similarly, as with the effectively reclassifies petroleum crude that oil producers are already vapor pressure limit, the commenters oil with a vapor pressure greater than 9 performing some oil conditioning. contend that the ANT requirement’s psi. This assertion is simply not true Earthjustice also notes that at least one compliance burden falls entirely on according to the AG of Washington. He North Dakota pipeline operator will not Washington State facilities. Thus, asserts that the law has no impact on the accept crude oil with a vapor pressure shippers and carriers do not submit Federal crude oil classification greater than 9 psi for transportation. ANT data and the Applicants, or any

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other States, do not have new duties no national standard, the commenters Preemption) jointly filed their rebuttal under the law. Moreover, the AG of reason that Washington State is free to comments. Washington indicated that a version of establish its own vapor pressure limit to The AG of Washington asserts that the the ANT requirement has already been fill a regulatory vacuum. Applicants lack authority to seek a in effect in the State since 2015, and preemption determination because they ANT Requirement points out that neither North Dakota nor are not ‘‘directly affected’’ by the Montana challenged the law when it The AG of Washington asserts the challenged laws. According to the AG of was originally enacted. ANT requirement improves local Washington, the question of standing is The commenters contend that the emergency preparedness and therefore a threshold issue and he points out that Applicants’ claim that the vapor poses no obstacle to the HMTA. none of the commenters supporting pressure limit’s explicit purpose is to According to the AG of Washington, the preemption, nor the Applicants, have regulate the handling of hazardous law applies only to Washington State adequately demonstrated that North materials during transportation by facilities that unload crude-by-rail Dakota and Montana satisfy this imposing volatility limits, is false. The shipments, and as such, rail carriers do requirement. Furthermore, he cautions AG of Washington and Earthjustice not have duties under the law. Also, the PHMSA that the agency has no assert that the vapor pressure limit is AG of Washington states that the law discretion to disregard the standing not ‘‘handling’’ subject to preemption does not conflict with the High-Hazard question and that it risks judicial review because it only impacts unloading Flammable Train (HHFT) notification if it proceeds despite the Applicants’ activities at facilities after transportation rules,33 nor will it cause confusion lack of standing. Here, the AG of had ended. As they explain it, the among Washington State’s emergency Washington reiterates his initial unloading practices at Washington State responders because responders will still comment on this issue, e.g., that the refineries exhibit something along the rely on the material’s emergency Applicants are not directly affected following: Facility personnel unload response information contained in the because (1) the vapor pressure limit has crude-by-rail shipments after the rail shipping papers. Finally, the AG of not yet taken effect; (2) the potential carrier delivers the tank car and departs. Washington argues the law does not impact to the Applicants’ tax revenue is After the facility unloads the crude oil, regulate a pre-transportation function as unduly speculative; and (3) a tax the rail carrier returns and retrieves the alleged by the Applicants because it revenue impact is a classic indirect empty tank cars. does not apply to shippers or carriers. impact. For these reasons, the AG of Earthjustice also attempts to refute the Washington continues to assert that Regulatory Gap Applicants’ case for preemption of the Washington State’s vapor pressure limit The AG of Washington, Earthjustice, Washington State law. Earthjustice has no direct impact on any opposing and individual commenters defend the contends the law only applies to State’s sovereign interests. law by claiming its vapor pressure limit Washington State facilities, not The AG of Washington also argues addresses a regulatory gap in the railroads. Earthjustice argues that since that PHMSA must separately determine Federal law and regulations governing there is no corresponding Federal ANT that the Applicants have standing to the transportation of crude-by-rail. requirement, and Washington State’s challenge the law’s ANT requirement, Earthjustice states that despite a number law does not apply to shippers or claiming the Applicants made no of well-documented oil train crashes carriers, it cannot possibly pose an connection between their respective and derailments, there is no Federal obstacle. As for the Applicants’ sovereign interests and the ANT regulations limiting the volatility of objection to the ANT requirement based requirement. The AG of Washington crude oil shipped in railroad tank cars. on the theory it will be confusing to first submits that should PHMSA find the Individual commenters agree, and responders, Earthjustice counters with ANT requirement—alleged to be an characterize the perceived regulatory the supposition that emergency entirely local safety measure—directly gap as PHMSA’s failure to protect responders should have the best and affects another State’s sovereign communities. most complete information. interests, the agency will have rendered The AG of Washington alleges the the standing requirement toothless. Federal government has undertaken no C. Rebuttal Comments Notwithstanding the above standing serious effort to regulate vapor pressure. Opposing Preemption question, it is the AG of Washington’s Furthermore, Earthjustice contends that position that the vapor pressure and The AG of Washington filed rebuttal PHMSA has failed to set a nationwide ANT requirements are legitimate comments. Also, the Attorneys General volatility standard, even though it has exercises of State authority that will of New York, California, Maryland, and received a petition for rulemaking improve public safety given the extreme New Jersey (AG Alliance against requesting that it set one. risks of crude-by-rail transportation. The AG of Washington and The AG of Washington further asserts 33 The HHFT notification rules specify that HHFT Earthjustice explain that the State of information sharing notification must include: (1) A the vapor pressure law is not an obstacle North Dakota stepped in to address the reasonable estimate of the number of HHFTs that under the HMTA because it does not regulatory gap in 2015, with the NDIC the railroad expects to operate each week, through regulate the transportation of crude oil Order setting a vapor pressure limit of each county within the State or through each tribal and is therefore not subject to jurisdiction; the routes over which the HHFTs will 13.7 psi to allegedly improve the safety operate; (2) a description of the hazardous material preemption under the HMTA. of Bakken crude oil for transport. But being transported and all applicable emergency Moreover, the AG of Washington argues according to the AG of Washington, the response information required by subparts C and G that the law cannot be preempted under State of North Dakota’s vapor pressure of part 172; (3) at least one point of contact at the the HMTA’s ‘‘substantively the same’’ railroad with knowledge of the railroad’s limit is insufficient to protect public transportation of affected trains; and (4) if the route test with respect to handling (loading safety because the threshold is too high is subject to oil spill response plan requirements, and unloading) or classification, and enforcement is lenient. the notification must include a description of the because the vapor pressure law Notwithstanding, the AG of Washington response zones and contact information for the regulates loading and unloading qualified individual and alternate. Railroads are asserts that his State is under no required to update the notifications for changes in functions at facilities, after the crude oil obligation to honor the State of North volume greater than twenty-five percent. See 49 has been delivered and transportation Dakota’s standard. And, since there is CFR 174.312. has ended. Regarding classification, the

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AG of Washington points out—contrary vapor pressure standard, it is entirely broadly. The Applicants claim that they to the claims made by commenters in appropriate for States to take reasonable will suffer several direct effects, support of preemption that the law and necessary measures to protect including specific reductions in oil and creates a new classification of crude oil communities, first responders, gas severance tax revenue, and based on vapor pressure—the law has businesses, and natural resources within reductions in royalties received from no impact on the Federal classification their respective borders. producers, as the rightful landowners requirements for crude oil. Crude oil The AG Alliance against Preemption, underlying oil and gas leases. In shipped to Washington State refineries with regard to vapor pressure, indicates addition, they say both States will will still be classified as a Class 3 that despite Federal mandates, a confront real and decidedly non- hazardous material in accordance with petition for rulemaking, and PHMSA’s speculative safety, environmental, and the HMR. publication of an Advanced Notice of economic effects associated with the The AG of Washington also highlights Proposed Rulemaking on the petition, additional pre-treatment requirements the willingness of certain commenters to the agency has failed to close an for Bakken crude oil or with the need to challenge Washington’s vapor pressure ‘‘existing regulatory loophole’’ by either identify alternative modes and routes of law, while apparently not objecting to finalizing a vapor pressure rule or transportation in order to comply with the State of North Dakota’s vapor establishing an interim protective vapor the law. pressure limit. The AG of Washington pressure standard. In fact, the AG According to the Applicants, the State believes both laws are valid exercises of Alliance against Preemption asserts that of North Dakota imposes an oil and gas State authority given the absence of rather than close the regulatory severance tax. The State of North Dakota Federal action on the subject. loophole, the Federal government’s relies upon the resulting tax revenue to Furthermore, he suggests that a decision efforts have either lagged or actively support its education system, its by PHMSA preempting Washington moved to roll back critical safety drinking water infrastructure State’s law would not only suppress protections for high-hazard flammable development, and more. The Applicants innovation that would result from unit trains that transport crude oil contend that pretreatment of oil will efforts to comply with Washington across the country. For example, the AG devalue the product and alternative State’s law, but also reward the State of Alliance against Preemption notes the markets will yield lower returns and North Dakota for winning a regulatory Sandia Study is more than two years therefore generate lower tax revenues. ‘‘race to the bottom’’ with its behind schedule; and it criticizes the Moreover, the Applicants state they are comparatively weak vapor pressure August 2019 report as a ‘‘limited land grant States, meaning each State limit that seems to be regarded as the de experiment’’ that does not inspire itself is the landowner for several oil facto national standard. confidence in the project’s planning, and gas leases throughout the Bakken Also, the AG of Washington attempts sampling, or analytical methods, or the region, generating direct royalties from to refute commenters’ arguments that report’s conclusions. Moreover, the AG oil and gas extraction operations the Sandia Study disproved a link Alliance against Preemption asserts that occurring on State-owned land. As such, between vapor pressure and rail safety the Department’s recent regulatory they contend the Washington State law by noting the Sandia Study’s pool fire reform actions will increase the will directly affect their royalty and fireball experiments did not likelihood, and dangerous revenue.34 adequately consider ignition potential, consequences, of oil train accidents and Also, the Applicants say they will which the AG of Washington says his derailments. Here, the AG Alliance face multiple consequences associated State’s vapor pressure limit is intended against Preemption points to the recent with the construction of new to address. withdrawal by the Federal Railroad infrastructure to meet Washington State Finally, the AG of Washington Administration (FRA) of the 2-person requirements (pretreatment facilities contends the State’s ANT requirement is crew ANPRM, and PHMSA’s and FRA’s and access roads), including not preempted because it is a local decision not to include an electronically environmental and safety consequences emergency preparedness measure that controlled pneumatic brakes associated with the additional handling applies only to Washington State requirement in the HHFT final rule. facilities. Furthermore, the AG of According to the AG Alliance against and movement of hazmat related to Washington dismisses claims that the Preemption, these regulatory failures pretreatment. requirement will create confusion for coupled with known market failures in Regarding the Applicants’ standing shippers and carriers, or that the ANT the rail sector that prevent or discourage for the notification requirement, they measures will result in additional actions to improve the safety of both argue that it is not appropriate for requirements for hazmat shipping transporting crude oil by rail, has PHMSA to sever the ANT and vapor papers. According to the AG of created the situation today where States pressure requirements for the requisite Washington, local facilities have already are filling this regulatory void by preemption analysis—as suggested by been providing advance notice of crude adopting their own protective vapor the AG of Washington—because the oil shipments since 2015, without any pressure standards. ANT requirement enables the State to major technical difficulties or enforce its vapor pressure limit and confusion; and the new requirement Supporting Preemption accordingly, it must be examined in the will have no impact on shipping papers The Applicants submitted their context of the prescribed the limit. nor impose any additional compliance rebuttal to comments filed in opposition obligations on shippers and carriers. to their petition. In addition, API and 34 North Dakota estimates that it will lose an The AG Alliance against Preemption AFRM each filed rebuttal comments. average of approximately $32,000 per day from July 1, 2019–June 30, 2020 (i.e., through the end of the filed its joint comments to respond The Applicants assert they have current fiscal year) and an average of approximately primarily to the comments filed by the standing to bring this petition and $36,000 per day thereafter through July 1, 2031, in AG Alliance for Preemption, led by characterize the AG of Washington’s lost oil and gas severance tax revenue as a result Oklahoma. The AG Alliance against interpretation of the requirement as of the Washington Law (based on the market rate for Bakken crude oil in July 2019). See Docket No.: Preemption supports the Washington overly narrow and also contradictory of PHMSA–2019–0149; Document No.: 4397; at State law and believes that in the face the agency’s long-standing precedent of https://www.regulations.gov/document?D=PHMSA- of PHMSA’s failure to adopt a Federal interpreting the standing requirement 2019-0149-4397.

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API suggests the facts presented by directly affected. Therefore, in the event same as, and that poses obstacles to the the Applicants convincingly support a the agency has concerns with the accomplishment of, the HMTA. finding that the States of North Dakota Applicants’ standing, AFPM requests API claims the AG of Washington and Montana are directly affected by the that the agency treat its comments in falsely asserts that the law has not taken Washington State law. For example, API this proceeding as a separate application effect and that its penalties do not affect argues that certain changes required to for a preemption determination on the rail transportation. According to API, pretreat Bakken crude oil to satisfy Washington State law. the law’s volume restriction for existing Washington State’s vapor pressure limit The Applicants attempt to refute the facilities currently applies to 2019 will naturally impact the Applicants’ AG of Washington’s contention that volumes. As such, facilities cannot energy economy and underlying they have failed to provide sufficient ignore this cap simply because, once infrastructure, and further, that it will evidence to support their petition. They triggered, the total ban on further increase handling and transportation of argue the HMTA does not limit shipments and potential associated hazardous materials resulting in PHMSA’s preemption consideration to penalties do not take effect for two increased safety risks within both the information presented in the years. For example, API notes that at States. API also notes that the inability original petition and that the least one refinery has commented that it to treat Bakken crude oil to comply with administrative record is sufficient based has already drastically reduced State of Washington’s vapor pressure on the contents of their application and scheduled shipments to avoid exceeding limit will inevitably result in lower the other relevant information received the law’s volume cap. commodity values or lost sales, from other commenters’ submissions. The Applicants argue the Washington Moreover, the Applicants note that corresponding to lost tax and royalty State law fails the obstacle test because commenters opposing preemption claim revenue for the Applicants. Moreover, the State’s self-styled three avenues of the law only regulates unloading of API contends that additional facts compliance actually increase the risk of crude oil at facilities as opposed to showing the Applicants are directly an incident during transportation; cause handling of crude oil—and thus, is affected include the comments unwarranted delay; and increase transit beyond the scope of the Federal law and submitted in this proceeding by times. Here, the Applicants reiterate a regulations. However, the Applicants Washington State refineries that attempt primary argument they raised in their state that the vapor pressure limit is to refute the AG of Washington’s claims petition; that is, that there are only three equally applicable to loading facilities that the law has no immediate or avenues for compliance: Pretreatment; substantial effects or impacts on North in North Dakota and Montana, which is inherently a regulated function under seek alternative modes of transportation; Dakota and Montana companies that or redirect the crude oil to facilities develop, produce, condition, and the HMR. Furthermore, the Applicants point out that ‘‘unloading incident to located outside of Washington State. transport Bakken crude. Regarding pretreatment, the Applicants AFPM states the AG of Washington’s movement’’ is an activity regulated by note that multiple commenters have argument that the Applicants’ tax and the HMR when performed by carrier reinforced their arguments that revenue will not be reduced because personnel or in the presence of carrier Washington State refineries will simply personnel. As such, the Applicants pretreatment is cost prohibitive and turn to other sources of crude oil assert that the Washington State law existing conditioning infrastructure is demonstrates a fundamental involves transportation regardless of insufficient to achieve Washington misunderstanding of the global whether a carrier is present and State’s 9 psi vapor pressure limit. petroleum market. According to AFPM, therefore, the challenged law seeks to Furthermore, the Applicants state that the options for Bakken crude oil regulate activities that include ‘‘loading pretreatment increases the inherent risk producers and suppliers to market their incident to movement,’’ a regulated of an incident in transportation because crude oil are reduced as a result of the function falling within the scope of the the law ultimately requires additional Washington State law. AFPM explains HMR. handling and movement. The AG of that due to the shortage of pipeline API asserts that the AG of Washington Washington argues that the Applicants infrastructure, the majority of Bakken misstates the purpose and nature of its have failed to provide evidence of the crude oil is transported by rail. AFPM vapor pressure law by stating that it anticipated increase in miles traveled suggests that should Washington State applies only to unloading activities at due to pretreatment, re-routing, or refineries stop receiving Bakken crude facilities located in Washington State, modal shift. But the Applicants insist oil, it would likely still move by rail, but even though elsewhere in its comments that the administrative record contains potentially at longer distances and at the AG of Washington admits that the ample evidence that these activities will higher costs. This would reduce the law was enacted to address the threats result in an increase of total miles value of the crude oil and therefore posed by crude-by-rail transportation. traveled for hazardous materials. directly reduce the Applicants’ State tax API notes that other commenters have The Applicants and AFPM attempt to and royalty revenue. AFPM asserts that conceded that the law targets the refute the AG of Washington’s argument this outcome will have an immediate transportation of Bakken crude-by-rail that under Washington State’s law, and harmful effect on the Applicants’ and not the unloading of the material at crude oil will still be classified as a interests, which stands in direct facilities. API opines that the law’s ‘‘Class 3 Flammable liquid,’’ just as it is contradiction of the AG of Washington’s vapor pressure limit and prohibitions on classified under the HMR. According to assertion that the law will have no real- unloading at facilities will severely the Applicants and AFPM, the world effect. curtail or eliminate rail transport of Washington State law creates two AFPM informs PHMSA that as the untreated Bakken crude into the State of classes of crude oil, one with vapor leading trade association representing Washington. As such, API states that pressure below 9 psi and one with vapor the refinery industry, it has standing to PHMSA should reject Washington pressure above 9 psi. The Applicants seek a preemption determination since State’s insincere and pretextual focus on and AFPM contend this new its members are directly affected by ‘‘unloading’’ and preempt the law classification essentially forbids the Washington State’s law. In fact, several because, by its nature and purpose, it transportation of crude oil by rail AFPM members have filed comments in seeks to regulate transportation in a because of the law’s handling (loading this proceeding explaining how they are manner that is not substantively the and unloading) restrictions.

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AFPM states that any argument significant factor in affecting pool fire accordingly, the agency can now asserting the Washington State law is and fireball burn characteristics. The conclude that no additional regulation beyond the scope of the Federal hazmat applicants contend that the results of on vapor pressure limits is warranted. law because it only regulates unloading the study do not support a basis for VI. Discussion at facilities after transportation has creating a distinction among crude oils ended, mischaracterizes the purposes of based on vapor pressure. A. The Applicants’ Standing To Apply the Washington State law. AFPM notes AFPM alleges that the AG of for a Preemption Determination Washington’s safety rationale for the that commenters, in defense of the The AG of Washington and other Washington State law is not supported Washington State law, have conceded commenters opposing the application by science as evidenced by the Sandia its intent is to regulate and address assert the Applicants lack standing to Study and the recently completed Task potential safety issues associated with challenge Washington State’s vapor 3 report. AFPM notes the commenters the transport of Bakken crude by rail, pressure requirements. The AG of against preemption have failed to rebut not the unloading of the petroleum Washington, Earthjustice, and other products at the facilities to which they the extensive scientific research that is included in this proceeding’s commenters believe the Applicants have are shipped. AFPM points out the not shown they are directly affected by Washington State law does not address administrative record. AFPM rejects the AG of Washington’s argument that the the challenged law, as required by the areas typically reserved to local police HMTA. powers, such as worker safety, public Sandia Study is irrelevant because it allegedly does not examine the According to the AG of Washington, health, and environmental safety. As the Applicants do not have standing such, AFPM contends that the law relationship between higher vapor pressure and ignition. AFPM points out because the vapor pressure limit has not impacts transportation and is not just yet taken effect; the potential impact to confined to unloading operations. Thus, that the Sandia Study concluded that ignition potential cannot be identified the Applicants’ tax revenue is unduly AFPM has concluded the Washington speculative; and a decrease in tax State law starts regulating from the time by a single index, and that vapor pressure is not a statistically significant revenue is a classic ‘‘indirect’’ impact. Bakken crude, destined for Washington Furthermore, the AG of Washington State facilities, is loaded onto rail cars factor in affecting the degree of thermal hazardous outcomes incident to a argues that irrespective of the in North Dakota and Montana. Applicants’ standing with respect to the Notwithstanding, AFPM also notes that derailment scenario; and accordingly, there is no scientific basis for making requirement to set a vapor pressure the Federal hazmat law and regulations limit, the agency must make a separate include pre-transportation and regulatory distinctions based on vapor pressure levels. To the contrary, AFPM determination regarding the Applicants’ transportation-related functions, eligibility to bring a challenge against including unloading operations. states that derailments typically produce ignition sources such as sparks the ANT requirement, and he claims the The Applicants assert that the from metal-on-metal stresses. The vapor Applicants make no connection Washington State law is an obstacle to pressure of a flammable liquid has no between their sovereign interests and carrying out the purpose of the HMTA bearing on the likelihood of ignition or that requirement. and does not enhance safety or fill a the frequency of derailment in these The Applicants assert they have regulatory gap. The Applicants further circumstances. Therefore, it is AFPM’s standing to bring this petition and contend that the Sandia Study Report position that Washington State and its characterize the AG of Washington’s underscores the conclusion that supporters’ heightened concerns about interpretation of the HMTA’s standing Washington’s law is preempted and high vapor pressure ignition potential in requirement as overly narrow, stating does not enhance safety. The Applicants a derailment scenario is entirely that this view contradicts the agency’s believe the Sandia study is important misplaced. AFPM dismisses the notion long-standing precedent of interpreting for the following reasons: (1) It was that any further research on Bakken the standing requirement broadly. commissioned by Federal agencies and crude oil vapor pressure is necessary Furthermore, the Applicants, as conducted by a respected national given the comprehensive research and landowners, contend they will suffer laboratory; (2) it demonstrates in results contained in the Sandia Study. several direct effects including specific practical terms that a vapor pressure AFPM notes that Earthjustice relies on reductions in oil and gas severance tax limit is within the province of a national data from the Department’s initial revenue, and reductions in royalties inquiry and should therefore be left to examination of the crude-by-rail received from oil producers. The determinations at the Federal level; and transportation system to support the Applicants explain that North Dakota (3) it debunks the Washington State proposition that Bakken crude oil is and Montana are land grant States, law’s purported purpose of imposing a uniquely dangerous. However, AFPM meaning the States themselves are the vapor pressure limit to improve public points out that DOT’s earlier approach landowners for several oil and gas leases safety in the event of a crude-by-rail was driven by a lack of understanding, throughout the Bakken region. derailment. Simply stated, the research and analysis, and that these Accordingly, they say each State Applicants conclude that the science limitations are now overcome by virtue receives direct royalties from oil and gas does not support the assumption that of the Sandia Study, representing the extractions occurring on State-owned regulating vapor pressure will mitigate most comprehensive and definitive land. the consequences of a derailment. The scientific research on this issue. AFPM In addition, the Applicants assert that Applicants note that commenters reiterates its contention that there is no both States will confront real and supportive of the law rely on the regulatory gap here as alleged by the AG ‘‘decidedly’’ non-speculative safety, findings from a 2014 DOT enforcement of Washington and other commenters. environmental, and economic effects effort, rather than the latest Rather, AFPM believes the Department due to the State of Washington’s comprehensive and scientific research has taken a measured and thorough requirements. American Petroleum study undertaken by Sandia National approach in considering whether to Institute (API) and the American Fuel & Laboratories. The Applicants highlight regulate vapor pressure and as such, the Petrochemical Manufacturers (AFPM) the fact that the report concluded that Sandia Study effectively completes agree that the Applicants have standing. vapor pressure is not a statistically Federal research on this topic, and They contend that the Applicants’

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submissions, as well as other comments on reconsideration, 62 FR 15970 (April some point in the future; we do not filed in this proceeding, sufficiently 3, 1997). We have also held that a group believe that the Federal hazardous demonstrate how the Applicants are of hazardous waste shippers could seek materials transportation law requires directly affected.35 API also notes the a determination with respect to a State PHMSA to delay making a HMTA’s preemption provision law mandating that hazardous waste determination. expressly grants States their own right generators create a certain type of Moreover, regarding the ANT to seek a preemption determination by manifest. PD–2(R), 58 FR at 11182. And requirement, we do not accept the AG its explicit reference to a ‘‘State’’ in the while enforcement issues, and how the of Washington’s bifurcated language authorizing who is eligible to non-Federal requirement is actually interpretation of the standing apply. applied, are relevant to our preemption requirement, which would require us to Section 5125(d) authorizes ‘‘[a] person analysis under the obstacle test, these make a separate determination of the (including a State, political subdivision issues do not factor into whether an Applicants’ eligibility to challenge this of a State, or Indian tribe) directly applicant is within the scope of those section of the Washington State law. affected by a requirement of a State persons entitled to use the statute’s Here, the ANT requirement is an . . .’’ to apply for a determination of administrative procedure for requesting integral part of the overall statutory preemption. 49 U.S.C. 5125(d) a preemption determination. Id. scheme providing for the State’s new (emphasis added). Under the ‘‘directly The plain language of the statute requirements addressing alleged safety affected test,’’ it must be determined presupposes a State as a potential concerns related to the transportation of whether the applicant will benefit by applicant. 49 U.S.C. 5125(d). Since a crude oil by rail within the State. As having the issues in its petition State will rarely if ever actually be such, the Applicants are directly resolved. See Illinois Environmental subject to another State’s law, the affected by the entire legislative scheme, Protection Agency’s Uniform Hazardous inclusion of States as applicants including the ANT requirement, and Waste Manifest, 58 FR 11176, 11181 confirms that Congress used ‘‘directly thus, have demonstrated substantial (Feb. 23, 1993). The agency has a long- affected’’ broadly. In this case, the only interests in the outcome of this standing practice of liberally construing issue is whether the Applicants have proceeding to justify access to the this threshold requirement. Generally, made a sufficient showing that they are administrative process. the agency interprets the requirement ‘‘directly affected’’ by the Washington In light of the above, the Applicants broadly to advance the notion that State law. The Applicants have have provided sufficient information important preemption issues (such as indicated they are land grant States, and and an adequate factual basis to national uniformity of hazardous as such, are landowners for several oil establish they are directly affected by materials transportation regulation) are and gas leases throughout the Bakken Washington State’s vapor pressure and raised under the HMTA, and all parties region. According to the Applicants, ANT requirements and, accordingly, are engaged in hazmat transportation will North Dakota and Montana each entitled to submit an application to be served by the agency addressing receives direct royalties from oil and gas PHMSA. preemption issues. See PD–32(R), Maine extractions occurring on State-owned Department of Environmental Protection land. In addition, the Applicants assert B. Vapor Pressure Requirements on Transportation of that both States will confront real and PHMSA finds that Washington State’s Cathode Ray Tubes, 74 FR 46644, 46648 ‘‘decidedly’’ non-speculative safety, vapor pressure limit is preempted. The (Sept. 10, 2009), quoting from PD–2(R) environmental, and economic effects requirement concerns both the at 11181. due to the Washington State ‘‘classification’’ and ‘‘handling’’ of PHMSA has considered petitions from requirements. hazardous materials and is not applicants who are affected by non- Based on information in the ‘‘substantively the same’’ as the Federal Federal requirements in a variety of administrative record for this regulations, and is therefore preempted ways. We have said, for example, that if proceeding, it has been established that by 49 U.S.C. 5125(b)(1)(A). The a ‘‘requirement applies to the a majority of all the crude oil that leaves requirement, moreover, is an obstacle to applicant,’’ the applicant need not show the Applicants’ borders is destined for accomplishing and carrying out the that it ‘‘is ‘adversely affected,’ refineries in Washington State. And, HMTA and the HMR, and is therefore ‘aggrieved,’ or has suffered ‘injury’ or since the law purports to regulate the preempted by 49 U.S.C. 5125(a)(2). ‘actual harm.’ ’’ PD–12(R), New York volatility of crude oil transported into Department of Environmental Washington State for loading and Covered Subject Preemption— Conservation; Requirements on the unloading, it likely applies to crude oil Classification Transfer and Storage of Hazardous shipments originating from the The Applicants contend that Wastes Incidental to Transportation, 60 Applicants’ holdings in the Bakken Washington State’s vapor pressure FR 62527, 62532 (Dec. 6, 1995), decision region. As such, the Applicants’ quasi- requirement designates a new class of sovereign interests over their natural crude oil based on its vapor pressure 35 AFPM notes in its rebuttal comments that it is resources are tangible interests that are and that the State’s requirement is not a leading trade association representing the refinery directly affected by the State of substantively the same as the HMR industry and has associational standing consistent Washington’s law. Contrary to requirements for crude oil. PHMSA with long-standing agency precedent. Therefore, AFPM writes that in the event PHMSA has Washington’s arguments, these effects agrees. concerns with the Applicants’ standing, AFPM has are not too indirect or speculative under Federal hazardous material requested that the agency treat its comments in the PHMSA’s broad interpretation of transportation law preempts a non- proceeding as a separate application for a ‘‘directly affected.’’ PHMSA rejects Federal requirement on the preemption determination on the Washington State law. See Docket No.: PHMSA–2019–0149; Washington’s contention that the ‘‘designation, description, and Document No.: 4395; at https:// Applicants are not directly affected classification’’ of hazardous material www.regulations.gov/document?D=PHMSA-2019- because the vapor pressure limit has not that is not ‘‘substantively the same’’ as 0149-4395. PHMSA agrees. AFPM represents yet gone into effect. This argument the Federal rules. 49 U.S.C. refineries that are regulated by Washington’s law. Even if the Applicants were not directly affected, would deny standing to any applicant at 5125(b)(1)(A). AFPM would be, and PHMSA could make a this time, and would require the The current HMR requirements for the determination on that basis. Applicants to file a new application at classification of unrefined petroleum

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based products include proper a requirement in the Federal hazmat law when those requirements affect classification, determination of an or regulation. 49 U.S.C. 5125(b)(1). transportation-related activities such as appropriate packing group, and The Department has extensive loading, unloading, and storage of selection of a proper shipping name and regulations governing the handling of hazmat. Id. description of the material. The HMR Class 3 flammable liquids, including Since those decisions, PHMSA, contain detailed rules that guide an loading and unloading, during through rulemaking, has clarified the offeror through each of these steps in transportation. See generally, 49 CFR applicability of the HMR to specific the classification process. See generally, 173.2–173.41, and part 174 (Railroads). functions and activities, including 49 CFR 172.101 (The Hazardous However, there is no specific Federal hazardous materials loading and Materials Table), 173.2–173.41; 173.120, prohibition on the handling of crude oil unloading operations. PHMSA, in a 173.121, 173.150, 173.242, 173. 243, and with a vapor pressure greater than 9 psi. rulemaking, defined ‘‘pre-transportation part 174 (Railroads). However, there is Washington State’s crude oil by rail function’’ to mean a function performed not a Federal vapor pressure standard vapor pressure law imposes a vapor by any person that is required to ensure for the classification of unrefined pressure requirement on the loading and the safe transportation of a hazardous petroleum-based products, such as unloading of crude oil where the material in commerce. See crude oil. The Washington State law has Federal law does not. ‘‘Applicability of the Hazardous set a State-wide vapor pressure standard The AG of Washington asserts that the Materials Regulations to Loading, of 9 psi for unrefined petroleum-based State’s vapor pressure requirement is Unloading, and Storage,’’ HM–223, 68 products, such as crude oil. not a handling regulation because it FR 61906 (October 30, 2003); Response Washington State’s attempt to set a only regulates unloading functions at to Appeals, 70 FR 20018 (April 15, vapor pressure limit for crude oil Washington State facilities after the 2005). crude oil has been delivered, Thus, loading functions fall within constitutes a scheme for classifying transportation has ended, and the the scope of Federal regulations when hazardous materials that is not carrier has departed. He argues that performed by any person, e.g., shipper substantively the same as the HMR. because such post-delivery unloading is or carrier, transporting a hazardous Indeed, as noted further below, the generally not regulated by the HMTA or material. Id. In addition, because carrier Washington law is also squarely at odds HMR, the Washington law is not subject possession of a hazardous material is a with the agency’s recent declaration that to preemption. As explained further key aspect of the definition of regulation of vapor pressure is neither below, PHMSA disagrees, as the AG of ‘‘transportation’’ under the HMR, necessary nor appropriate. The Washington does not accurately loading functions that are performed by reasoning for this conclusion is more describe the Washington law, and carrier personnel or by shipper fully elaborated below. The Washington ignores the law’s significant upstream personnel in the presence of the carrier AG and other commenters contend that effects. are still considered ‘‘loading incidental Washington’s vapor pressure limit does PHMSA, in prior preemption to movement’’ and consequentially, are not concern ‘‘classification’’ because it determinations, has confirmed that transportation functions. Id. does not change the Federal Federal hazardous material Regarding unloading, if carrier classifications of crude oil. But the transportation law and the HMR apply personnel are present during the question under 49 U.S.C. 5125(b)(1)(A) to hazardous materials that are in unloading of packaged hazardous is not whether a State law changes the transportation in commerce, including materials from a transport vehicle or the Federal classifications of hazardous loading, unloading and storage that is unloading of a bulk package, such as a materials, but whether a State law incidental to that transportation. See cargo tank or a rail tank car, into a imposes additional, different PD–9(R), California and Los Angeles storage tank or manufacturing process, classifications. Washington’s vapor County Requirements Applicable to the then the operation is considered pressure limit does just that, by creating Onsite Handling and Transportation of ‘‘unloading incidental to movement’’ of a new class of crude oil that is subject Hazardous Materials, 60 FR 8774 the hazardous material, and to special requirements. The vapor (February 15, 1995), Decision on accordingly, is subject to regulation pressure limit is therefore preempted Petitions for Reconsideration, 80 FR under the HMR. Id. under 49 U.S.C. 5125(b)(1)(A). 70874 (November 16, 2015) (a time- The State of Washington relies on the Covered Subject Preemption—Handling restriction for unloading tank cars was ‘‘carrier possession’’ distinction for preempted because unloading activities determining the applicability of the The Applicants also contend that by are ‘‘handling,’’ a covered subject); see HMR in defense of its vapor pressure prohibiting facilities from loading or also PD–12(R), New York Department of law. It argues that ‘‘as a practical unloading crude oil into or from a rail Environmental Conservation; matter’’ the law only affects unloading tank car unless the oil has a vapor Requirements on the Transfer and activities at Washington facilities, that pressure of less than 9 psi, Washington Storage of Hazardous Wastes Incidental the ‘‘practice’’ at Washington facilities is has imposed a handling requirement to Transportation, 60 FR 62527 to unload oil only after carrier personnel that is not substantively the same as the (December 6, 1995), Decision on have departed, and that the law HMR handling requirements for crude Petition for Reconsideration, 62 FR therefore only regulates activities not oil, and therefore is preempted. PHMSA 15970 (April 3, 1997) (secondary subject to the HMR. PHMSA disagrees, agrees. containment requirement for the for two reasons. First, regardless of what Loading and unloading fall within the transfer or storage of hazardous wastes Washington characterizes as standard scope of ‘‘handling,’’ which is a covered at transfer facilities preempted because ‘‘practice,’’ the Washington law on its subject for purposes of the HMTA it created confusion as to the face does not apply only to unloading preemption analysis. 49 U.S.C. requirements in the HMR and increased after a carrier departs. The law also 5125(b)(1)(B). Under the ‘‘substantively the likelihood of non-compliance with applies to loading within the State, and the same’’ test, a non-Federal the HMR). Furthermore, the agency has to unloading in the presence of carrier requirement concerning a covered determined that non-Federal personnel; as noted above, these subject (i.e., handling), is preempted requirements that purport to regulate activities are unquestionably covered by when it is not substantively the same as ‘‘facilities’’ are subject to preemption the HMTA and HMR.

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Second, even though the law is Simply stated, before Washington preemption provisions. Id. Regulatory written to only regulate loading and State enacted this law, there were no uniformity is frustrated when State and unloading at facilities in Washington, its special restrictions on the transportation local governments adopt requirements practical effect is to regulate pre- of crude oil with a vapor pressure like those at issue in this proceeding. transportation activities outside of greater than 9 psi. However, after the Several principles of regulatory Washington, as well as transportation law, handling, including loading and uniformity have been developed itself. The administrative record and the unloading, of crude-by-rail is directly through agency interpretations and case facts contained therein as presented by affected, and potentially banned law. First, State and local requirements numerous commenters, belies altogether unless it meets Washington that impede hazardous materials Washington State’s claim that the scope State’s vapor pressure requirement. transportation that is being conducted of the vapor pressure requirement is Therefore, Washington State’s vapor in accordance with the Federal either narrow or local. For example, the pressure limit is a transportation requirements constitute inconsistent Washington law does not specify how a handling requirement that is not restraints on such transportation. facility is to determine whether the oil substantively the same as the Federal Second, transportation carried out it is loading or unloading has a vapor requirements covering the same subject. within the Federal framework of the pressure of less than 9 psi. As such, it Moreover, in light of the agency’s HMTA and HMR is presumptively safe is likely that the vapor pressure of crude withdrawal of the ANPRM, the and additional State or local oil received by the facilities will have to Department has taken specific action to requirements concerning matters be provided by the shipper. This not require vapor pressure limits. covered by Federal law or regulation are essentially means that the crude oil Accordingly, the Washington law neither necessary nor appropriate. would have to be sampled, tested, and cannot stand and is therefore preempted Finally, where the Department has treated at the source of production under 49 U.S.C. 5125(b)(1)(B). examined an area otherwise within its authority to adopt regulations and has before it is loaded onto rail cars, even Obstacle Preemption though there is no Federal requirement declined to regulate, State and local for either measuring vapor pressure or The Applicants contend that requirements in that area may be pre-treatment. Moreover, there is no Washington’s vapor pressure preempted where they have adverse Federal requirement for shippers of requirement is an obstacle to impacts on the Federal regulatory crude oil to communicate the material’s accomplishing and carrying out the scheme and the transportation that HMTA and the HMR, and is therefore vapor pressure to carriers or consignees occurs thereunder. See generally, PD– preempted under 49 U.S.C. 5125(a)(2). when it is offered for transportation. 6(R), Michigan Marking Requirements PHMSA agrees. for Vehicles Transporting Hazardous Any conditioning of Bakken crude oil to When Congress enacted the HMTA, it a vapor pressure of less than 9 psi is not and Liquid Industrial Wastes, 59 FR made several findings that emphasized 6186 (Feb. 9, 1994); Inconsistency a post-production process since the oil the importance of uniform regulations must be pretreated or conditioned at the Ruling (IR)–8, State of Michigan Rules governing the transportation of and Regulations Affecting Radioactive point of production and before loading, hazardous materials. For example, which clearly is a pre-transportation Materials Transportation, 49 FR 46637 Congress noted that many States and (Nov. 27, 1984), decision on appeal, 52 function. Of greater significance is the localities had enacted laws and fact that the oil cannot be conditioned FR 13000 (April 20, 1987); IR–15(A), regulations which varied from Federal Vermont Rules for Transportation of at Washington State facilities before it is law and regulations pertaining to the Irradiated Reactor Fuel and Nuclear unloaded from the railcars. transportation of hazardous materials, Waste, 49 FR 46660 (Nov. 27, 1984), In light of these facts, it is evident that which created the potential for decision on appeal 52 FR 13062, 13063 upstream impacts are inevitable at the transferring unreasonable hazards to (April 20, 1987); quoted and followed, point of origin in the transportation other jurisdictions and created IR–19; IR–19, Nevada Public Service network—and not downstream at the confusion for shippers and carriers Commission Regulations Governing point of destination as the State of attempting to comply with multiple and Transportation of Hazardous Materials, Washington contends. The reach of the conflicting requirements. Due to the 52 FR 24404, 24407 (June 30, 1987), State’s legislative activity inevitably potential risks to life, property, and the decision on appeal, 53 FR 11600 (April traces all the way back to the production environment posed by unintentional 7, 1988), affirmed in IR–19(A) and activities to North Dakota and Montana. releases of hazardous materials, Southern Pac. Transp. Co. v. Public As such, we must find that the law Congress determined that consistency in Serv. Comm’n of Nevada, 909 F.2d 352 imposes a requirement on shippers that laws and regulations governing the (9th Cir. 1990), reversing No. CV–N–86– was purposefully omitted from the transportation of hazmat was necessary 444–BRT (D. Nev. 1988). current text of the HMR. Washington’s and desirable, and that PHMSA’s efforts In light of its jurisdictional law affects the handling and to achieve greater uniformity are responsibilities and consistent with transportation of crude oil because the necessary to promote the public health, court precedents, the Department has oil producers cannot load crude-by-rail welfare, and safety at all levels. Thus, taken a system-wide approach to destined for Washington State refineries the Congress found it desirable that only achieving safety of the Nation’s unless it has a vapor pressure of not Federal standards regulate the transportation systems that includes greater than 9 psi, and that requirement transportation of hazardous materials in regulatory and non-regulatory actions to can only be satisfied at the point of intrastate, interstate, and foreign ensure the safe and secure production before the material is placed commerce. See Colorado Pub. Util. transportation of crude oil by rail. As into the transportation network. It is Comm’n v. Harmon, 951 F.2d 1571, previously discussed, these actions also noteworthy that there currently is 1580 (10th Cir. 1991). resulted in the addition of new no Federal requirement for shippers of In light of these Congressional sampling and testing requirements to crude oil to communicate a Class 3 findings, it is widely understood that a the HMR; an assessment of the merits of material’s vapor pressure to carriers or primary purpose of the HMTA is setting a Federal vapor pressure limit; consignees downstream when it is regulatory uniformity that will be and the commissioning of the Sandia offered for transportation. achieved through the HMTA’s Study. The volatility and vapor pressure

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of crude oil have been important similar bill regulating vapor pressure for accomplishing and carrying out the characteristics studied by the agency oil or gas, and at least six States that HMTA. throughout this entire process. have advocated for a vapor pressure Federal hazardous material PHMSA, after closely examining the limit.37 transportation law preempts a non- results and conclusions of the Sandia Furthermore, a patchwork of varying Federal requirement for the Study (as discussed earlier in Section and conflicting State and local ‘‘preparation, execution, and use of VI.A), and in consideration of the public regulations would likely increase risk by shipping documents’’ and comments to the ANPRM from industry, exporting potentially unreasonable ‘‘requirements related to the number, stakeholders, and other interested hazards to other jurisdictions as offerors content, and placement’’ of those parties, withdrew the ANPRM. PHMSA employ various avenues of compliance documents, that are not ‘‘substantively determined that issuance of any either through rerouting shipments; the same’’ as the Federal rules. 49 U.S.C. regulation setting a vapor pressure limit seeking alternate markets or modes of 5125(b)(1)(C). for unrefined petroleum-based products transportation; or avoidance of a The HMTA and HMR prescribe the was not justified because such a jurisdiction altogether. This last option information and documentation regulation would not lessen risks is particularly troubling as it resembles requirements for the safe transportation associated with the transport of crude a de facto ban on transportation. of hazardous materials. See generally, oil by rail. The agency’s withdrawal of Proponents of the law insist 49 CFR part 172, subparts C and G; part the ANPRM is the most definitive Washington State has a legitimate 174 (railroads). This includes the statement to the regulated community public interest to protect its citizens preparation, execution, and use of and the public that there is no need for from oil train fires and explosions, but shipping documents. Under the HMR, a Federal regulation that sets a vapor in the context of the transportation of offerors of a hazardous material for pressure limit for unrefined petroleum- 36 crude oil by rail, a State cannot use transportation are required to prepare a based products within the HMR. shipping paper to accompany the In summary, the Department and safety as a pretext for inhibiting market material while it is in transportation PHMSA have pursued a comprehensive growth or instituting a de facto ban on with information describing the material approach to address volatility of crude- crude oil by rail within its borders. and emergency response information. In by-rail, and have determined that Notwithstanding the State of general, the Federal rules do not require existing Federal requirements are Washington’s interest in the welfare and adequate to ensure the safe safety of its citizens, any State laws additional information, documentation, transportation of crude oil, particularly supporting those interests that implicate or advance notification for the in light of the compelling conclusions of the transportation of hazardous transportation of hazardous materials. recent research activities discussed materials, must not conflict with the PHMSA recently adopted new HHFT above. Therefore, State and local objectives of the HMTA. Here, we find information sharing requirements in provisions that fundamentally alter the that the vapor pressure requirement is order to ensure that safety and security requirements for the same hazardous an obstacle to carrying out the HMTA planning is occurring for crude-by-rail material are clearly obstacles to the and HMR—it not only hinders the shipments. 49 CFR 173.41. The accomplishment and execution of the movement of hazardous materials but information sharing requirements objectives of the HMTA and HMR. also creates unnecessary delays in direct include a weekly estimate of the number Having considered all of the conflict with HMTA. Accordingly, the of trains expected to operate through the implications of Washington State’s law is preempted. local jurisdiction, a description of the hazardous material and all applicable unilateral regulatory action setting a C. ANT Requirement vapor pressure limit for crude oil, the emergency response information agency must conclude that the State’s One remaining question before the (consistent with the HMR action epitomizes the type of patchwork agency is whether Washington State’s requirements), and a railroad point of State regulation that Congress sought to ANT requirement regulates the same contact. Updates are only required when avoid when it enacted the HMTA and subject covered by the Federal volume changes more than twenty-five established a framework of uniform requirements for the requisite shipping percent. Id. national regulations for regulating the paper’s material description and We note that Washington State transportation of hazardous materials. emergency response information, and if amended the ANT requirement to add The Washington State vapor pressure so, whether the State’s requirement is new data elements, ‘‘type’’ and ‘‘vapor requirement, if allowed to persist, substantively the same as the HMR pressure’’ to the ANT database. Before would set an alarming precedent. Other requirements for crude oil. this amendment, the data elements that State and local jurisdictions would be Alternatively, we must consider were being reported generally consisted encouraged to enact their own vapor whether Washington’s ANT requirement of the same data that is required under pressure limits for crude oil. The is inconsistent with the HMR rule the HHFT notification requirements. For resultant multiple and conflicting governing HHFT information sharing example, route, product description, requirements will undermine the notification for emergency response and quantity. It is noteworthy, that this uniform Federal regulatory scheme. planning, or is otherwise an obstacle to information is either necessary or Moreover, a multitude of differing optional information under the HMR, or regulations in this area would surely 37 See House Bill 4105, 80th Oregon Legislative otherwise ascertained from the shipping create uncertainty and confusion for Assembly—2020 Regular Session (February 3, paper that is required to accompany a offerors. And the likelihood of copycat 2020), https://olis.leg.state.or.us/liz/2020R1/ shipment of crude oil—except vapor Downloads/MeasureDocument/HB4105/Introduced pressure. Similarly, with the addition of regulation of crude oil vapor pressure is (last visited February 12, 2020). In this proceeding, not merely speculative as evidenced by the Attorneys General of New York, California, these new data elements and the the administrative record for this Maryland, and New Jersey submitted comments different reporting threshold, the ANT proceeding. PHMSA is aware of one against preemption. In addition, the Attorneys requirement is different from the HHFT General of California, Illinois, Maine, and Maryland notification requirements, albeit not to State legislature that has introduced a filed joint comments with the Attorneys General of New York and Washington, supporting a national the extent that commenters have 36 See Supra note 21. vapor pressure standard in the ANPRM proceeding. described it.

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The State of Washington asserts that on the petition for reconsideration Avenue NW, Washington, DC 20224. the ANT requirement is a local becomes PHMSA’s final agency action Requests for additional information or emergency preparedness measure that with respect to the person requesting copies of the regulations should be applies only to in-state facilities that reconsideration. See 49 CFR 107.211(d). directed to Ronald J. Durbala, at Internal unload crude-by-rail shipments, with no If a person does not request Revenue Service, Room 6129, 1111 attendant reporting duties for shippers reconsideration in a timely fashion, then Constitution Avenue NW, Washington, or carriers. Yet, it is unclear from where, this determination is PHMSA’s final DC 20224, or through the internet, at and whom, the facilities will get the agency action as to that person, as of the [email protected]. crude oil’s ‘‘type’’ and ‘‘vapor pressure’’ date of publication in the Federal SUPPLEMENTARY INFORMATION: data in order to comply with the Register. Title: Disclosure of Returns and amended ANT requirement. A Any person who wishes to seek Return Information by Other Agencies. reasonable inference could be made that judicial review of a preemption OMB Number: 1545–1757. this information must be provided by determination must do so by filing a Regulation Project Number: TD 9036. the shipper or carrier. Notwithstanding, petition for review in the United States Abstract: In general, under the we cannot ignore the fact that none of Court of Appeals for the District of regulations, the IRS is permitted to the refineries that submitted comments Columbia Circuit, or in the United authorize agencies with access to in this proceeding provided any States Court of Appeals for the circuit in returns and return information under meaningful information regarding how which the petitioner resides or has its section 6103 of the Internal Revenue they have been complying with the principal place of business, within 60 Code to re-disclose returns and return current iteration of the requirement, or days after the determination becomes information based on a written request how they intend to comply with the final with respect to the filing party. See and the Commissioner’s approval, to amended law. Without more 49 U.S.C. 5127(a). any authorized recipient set forth in information, it is unclear whether there The filing of a petition for Code section 6103, subject to the same is a sufficient nexus to the ANT reconsideration is not a prerequisite to conditions and restrictions, and for the requirement and the Federal seeking judicial review of this decision same purposes, as if the recipient had requirements that fully implicates under 49 U.S.C. 5127(a). received the information from the IRS HMTA preemption. Therefore, on Issued in Washington, DC, on May 11, directly. balance, PHMSA finds that the 2020. Current Actions: There is no change to administrative record regarding the Paul J. Roberti, the burden previously approved by ANT requirement is insufficient to make OMB. This request is being submitted Chief Counsel. a determination whether the for renewal purposes only. requirement is preempted under the [FR Doc. 2020–10381 Filed 5–14–20; 8:45 am] Type of Review: Extension of a HMTA. BILLING CODE 4910–60–P currently approved collection. VII. Ruling Affected Public: Federal Government, State, Local, or Tribal Gov’t. PHMSA finds that Washington State’s DEPARTMENT OF THE TREASURY Estimated Number of Respondents: vapor pressure requirement setting a 11. vapor pressure limit of 9 psi for crude Internal Revenue Service Estimated Time per Respondent: 1 oil, has created a scheme for classifying hour. a hazardous material that is not Proposed Extension of Information Estimated Total Annual Burden substantively the same as the Federal Collection Request Submitted for Hours: 11. hazardous materials regulations. Public Comment; Comment Request The following paragraph applies to all PHMSA also finds that the vapor on Disclosure of Returns and Return the collections of information covered pressure requirement is a handling Information by Other Agencies by this notice: requirement that is not substantively the AGENCY: Internal Revenue Service (IRS), An agency may not conduct or same as existing Federal requirements. Treasury. sponsor, and a person is not required to Furthermore, PHMSA has determined respond to, a collection of information ACTION: Notice and request for that the vapor pressure requirement is unless the collection of information comments. an obstacle to accomplishing and displays a valid OMB control number. carrying out the HMTA and HMR, and SUMMARY: The Internal Revenue Service, Books or records relating to a is, therefore preempted. as part of its continuing effort to reduce collection of information must be In addition, PHMSA finds that the paperwork and respondent burden, retained if their contents may become administrative record regarding the invites the public and other Federal material in the administration of any ANT requirement is insufficient to make agencies to take this opportunity to internal revenue law. Generally, tax a determination whether the comment on proposed and/or returns and tax return information are requirement is preempted under the continuing information collections, as confidential, as required by 26 U.S.C. HMTA. required by the Paperwork Reduction 6103. Act of 1995. Currently, the IRS is Desired Focus of Comments: The VIII. Petition for Reconsideration/ Internal Revenue Service (IRS) is Judicial Review soliciting comments concerning the guidance on the disclosure of returns particularly interested in comments In accordance with 49 CFR that: and return information by other • 107.211(a), any person aggrieved by this Agencies. Evaluate whether the proposed determination may file a petition for collection of information is necessary reconsideration within 20 days of DATES: Written comments should be for the proper performance of the publication of this determination in the received on or before July 14, 2020 to be functions of the agency, including Federal Register. If a petition for assured of consideration. whether the information will have reconsideration is filed within 20 days ADDRESSES: Direct all written comments practical utility; of publication in the Federal Register, to Kinna Brewington, Internal Revenue • Evaluate the accuracy of the the decision by PHMSA’s Chief Counsel Service, Room 6529, 1111 Constitution agency’s estimate of the burden of the

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proposed collection of information, appropriate automated, electronic, of the extension of the information including the validity of the mechanical, or other technological collection; they will also become a methodology and assumptions used; collection techniques or other forms of matter of public record. • Enhance the quality, utility, and information technology, e.g., by Approved: May 11, 2020. clarity of the information to be permitting electronic submissions of collected; and responses. Ronald J. Durbala, • Minimize the burden of the Comments submitted in response to IRS Tax Analyst. collection of information on those who this notice will be summarized and/or [FR Doc. 2020–10427 Filed 5–14–20; 8:45 am] are to respond, including using included in the ICR for OMB approval BILLING CODE 4830–01–P

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Part II

Department of the Interior

Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Endangered Species Status for Southern Sierra Nevada Distinct Population Segment of Fisher; Final Rule

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DEPARTMENT OF THE INTERIOR year. To the maximum extent prudent specialists to ensure that our and determinable, we must designate consideration of the status of the species Fish and Wildlife Service critical habitat for any species that we is based on scientifically sound data, determine to be an endangered or assumptions, and analyses. We invited 50 CFR Part 17 threatened species under the Act. these peer reviewers to comment on Listing a species as an endangered or both the draft Species Report (Service [Docket No. FWS–R8–ES–2018–0105; FF09E21000 FXES11110900000 201] threatened species and designation of 2014) as well as the 2014 Proposed Rule critical habitat can only be completed (79 FR 60419, October 7, 2014). We also RIN 1018–BD85 by issuing a rule. considered all comments and What this document does. This rule information received during three Endangered and Threatened Wildlife will add the Southern Sierra Nevada public comment periods (and one and Plants; Endangered Species DPS of fisher (Pekania pennanti) (SSN extension) for the 2014 Proposed Rule Status for Southern Sierra Nevada DPS) as an endangered species to the (79 FR 60419, October 7, 2014; 79 FR Distinct Population Segment of Fisher List of Endangered and Threatened 76950, December 23, 2014; 80 FR 19953, Wildlife in title 50 of the Code of April 24, 2015; 84 FR 644, January 31, AGENCY: Fish and Wildlife Service, Federal Regulations at 50 CFR 17.11(h). Interior. 2019) and two comment periods for the The basis for our action. Under the 2019 Revised Proposed Rule (84 FR ACTION: Final rule. Act, we may determine that a species is 60278, November 7, 2019; 84 FR 69712, an endangered or threatened species SUMMARY: We, the U.S. Fish and December 19, 2019). All comments based on any of five factors: (A) The received during the peer review process Wildlife Service (Service), determine present or threatened destruction, endangered species status under the and the public comment periods have modification, or curtailment of its either been incorporated in the final Endangered Species Act (Act), as habitat or range; (B) Overutilization for amended, for the Southern Sierra Species Report (Service 2016, entire), in commercial, recreational, scientific, or this rule, or addressed in the Summary Nevada Distinct Population Segment educational purposes; (C) Disease or (DPS) of fisher (Pekania pennanti). This of Comments and Recommendations predation; (D) The inadequacy of section of the preamble. DPS occurs in California. The effect of existing regulatory mechanisms; or (E) this regulation will be to add this DPS Other natural or manmade factors Acronyms and Abbreviations Used to the List of Endangered and affecting its continued existence. We We use several acronyms and Threatened Wildlife. identified multiple threats under abbreviations throughout the preamble DATES: This rule is effective June 15, various factors that are acting on, and of this final rule. To assist the reader, 2020. will continue to act on, the SSN DPS, we list them here: ADDRESSES: This final rule is available the full list of which can be found in our final Species Report 2016 (Service 2016, BLM = Bureau of Land Management on the internet at http:// CAL FIRE = California Department of www.regulations.gov in Docket No. entire). Forestry and Fire Protection Of particular significance regarding FWS–R8–ES–2018–0105 and at https:// CBI = California Biology Institute implications for the DPS’s status were www.fws.gov/Yreka. Comments and CCAA = Candidate Conservation Agreements loss and fragmentation of habitat materials we received, as well as with Assurances resulting from high-severity wildfire supporting documentation we used in CDFW = California Department of Fish and and wildfire suppression (i.e., loss of Wildlife preparing this rule, are available for snags and other large habitat structures CESA = California Endangered Species Act public inspection at http:// on which the species relies), climate CEQA = California Environmental Quality www.regulations.gov. Comments, change, and tree mortality from drought, Act materials, and documentation that we disease, and insect infestations. Also of CFGC = California Fish and Game considered in this rulemaking will be Commission significance were threats related to C.I. = confidence interval available by appointment, during potential direct impacts to individual normal business hours at: U.S. Fish and DOI = Department of the Interior fishers (e.g., increased mortality, DPS = distinct population segment Wildlife Service, Yreka Fish and decreased reproductive rates, increased Wildlife Office, 1829 South Oregon EKSA = Eastern Klamath Study Area stress/hormone levels, alterations in EPA = Environmental Protection Agency Street, Yreka, CA 96097; telephone 530– behavioral patterns), including wildfire, ESU = evolutionarily significant unit 842–5763. increased temperatures resulting from FPR = forest practice rules FOR FURTHER INFORMATION CONTACT: climate change, disease and predation, GDRC = Green Diamond Resource Company Jenny Ericson, Field Supervisor, Yreka exposure to toxicants, collisions with GNN = gradient nearest neighbor Fish and Wildlife Office, telephone: vehicles, and potential effects associated HCP = Habitat Conservation Plan MAUCRSA = Medicinal and Adult-Use 530–842–5763. Persons who use a with small population size. These telecommunications device for the deaf Cannabis Regulation and Safety Act factors are resulting in a cumulative MOU = Memorandum of Understanding may call the Federal Relay Service at 1– effect to such a degree that the best NCSO = Northern California/Southern 800–877–8339. available information indicates the Oregon SUPPLEMENTARY INFORMATION: Southern Sierra Nevada DPS of fisher NEPA = National Environmental Policy Act meets the definition of an endangered NFMA = National Forest Management Act Executive Summary species. NPS = National Park Service Why we need to publish a rule. Under Peer review and public comment. In NSN = Northern Sierra Nevada the Act, if we determine that a species accordance with our joint policy on peer NWFP = Northwest Forest Plan may be an endangered or threatened review published in the Federal ODF = Oregon Department of Forestry OGSI = old growth structure index species throughout all or a significant Register on July 1, 1994 (59 FR 34270), ONP = Olympic National Park portion of its range, we are required to and our August 22, 2016, memorandum PECE = Policy for the Evaluation of promptly publish a proposal in the updating and clarifying the role of peer Conservation Efforts Federal Register and make a review of listing actions under the Act, RCP = representative concentration pathways determination on our proposal within 1 we sought comments from independent RMP = resource management plan

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SHA = Safe Harbor Agreements or notice of a revised proposed rule by our re-evaluation of the DPS and the SNAMP = Sierra Nevada Adaptive October 26, 2019, and in the event of resulting status determinations that Management Project publishing a revised proposed rule, followed from our revised DPS SOC = Southern Oregon Cascades submit for publication a final listing determinations. SPI = Sierra Pacific Industries SSN = Southern Sierra Nevada determination by April 25, 2020. In our 2019 Revised Proposed Rule USFS = U.S. Forest Service On November 7, 2019, we published we presented our delineation of the DPS USDA = U.S. Department of Agriculture a revised proposed rule to list the West for West Coast populations of fishers, Coast DPS of fisher (84 FR 60278) which was revised from the 2014 Previous Federal Actions (hereafter referred to as 2019 Revised Proposed Rule. This revised delineation We first found the West Coast DPS of Proposed Rule). In the 2019 Revised identified the West Coast DPS as fisher (previously delineated as a Proposed Rule, we evaluated new comprising the two extant historically contiguous area encompassing parts of information available since 2014 and native subpopulations, Northern the three States of Washington, Oregon, reconsidered the best available California/Southern Oregon (NCSO) and and California) to be warranted for information already in our files Southern Sierra Nevada (SSN), as well listing in 2004 and each subsequent year (including all peer, partner, and public as the Northern Sierra Nevada (NSN, in the annual Candidate Notice of comments received during previous also known as the Stirling Review. On October 7, 2014, we comment periods as well as the two subpopulation, as referenced in specific proposed to list the West Coast DPS of recent comment periods on the 2019 text regarding the Stirling Management fisher as a threatened species under the Revised Proposed Rule). In the 2019 Unit) and Southern Oregon Cascades Endangered Species Act of 1973, as Revised Proposed Rule, we concluded (SOC) subpopulations that resulted from amended (Act; 16 U.S.C. 1531 et seq.) that the West Coast DPS of fisher reintroductions within a portion of the (79 FR 60419; Docket No. FWS–R8–ES– continued to meet the definition of a historical range of the DPS. These four 2014–0041) (hereafter referred to as threatened species based on cumulative subpopulation groups occur 2014 Proposed Rule). On April 18, 2016, effects associated with multiple threats geographically in essentially two we withdrew the proposed rule to list across the DPS’s range. groupings: NCSO (including NSN and the West Coast DPS of fisher (81 FR Additional information on Federal SOC subpopulations) and the wholly 22710), concluding that the potential actions concerning the West Coast DPS separate SSN subpopulation. threats acting upon the DPS were not of of fisher prior to October 7, 2014, is In the 2014 Proposed Rule, we sufficient imminence, intensity, or outlined in the 2014 Proposed Rule explained that the DPS we proposed to magnitude to indicate that they were (October 7, 2014, 79 FR 60419). list included all the fisher subpopulations in the three western singly or cumulatively resulting in Summary of Changes From the 2019 States (Washington, Oregon, California) significant impacts at either the Revised Proposed Rule population or rangewide scales such known to be extant at that time. Thus, that the DPS met the definition of an Our 2019 Revised Proposed Rule the DPS included the fisher endangered or threatened species. discussed how potential changes from subpopulations in NCSO (including On October 19, 2016, the Center for the proposed rule to the final rule SOC and NSN), SSN, and Olympic Biological Diversity, Environmental regarding status would constitute a National Park (ONP) in Washington. Protection Information Center, Klamath- logical outgrowth, stating that, ‘‘Because Both the ONP and SOC subpopulations Siskiyou Wildlands Center, and Sierra we will consider all comments and were established with fishers Forest Legacy filed a complaint for information received during the translocated from areas outside the three declaratory and injunctive relief, comment period, our final western States, e.g., British Columbia, alleging that our determination on the determination may differ from the Alberta, and Minnesota; the NCSO and West Coast DPS of fisher violated the proposed rule. Based on the new SSN subpopulations were existing Act. By Order Re: Summary Judgment information we receive (and any subpopulations historically indigenous issued on September 21, 2018, the comments on that new information), we to this three-State area, and NSN was District Court for the Northern District may conclude that the species is established with fishers translocated of California vacated the listing endangered instead of threatened, or we from the NCSO source subpopulation. withdrawal and remanded the Service’s may conclude that the species does not However, we also included a final determination for reconsideration. warrant listing as either an endangered discussion of potential alternative DPS The Court’s amended order, dated or a threatened species. Such final configurations in the 2014 Proposed November 20, 2018, directed the Service decisions would be a logical outgrowth Rule, and we requested public comment to prepare a new determination by of this proposal as long as we: (1) Base and peer review on the two alternative September 21, 2019. the decisions on the best scientific and DPS configurations. On January 31, 2019, we reopened the commercial data available after DPS Alternative 1 consisted of a comment period on the October 7, 2014, considering all of the relevant factors; single DPS encompassing the extant proposed rule to list the West Coast DPS (2) do not rely on factors Congress has subpopulations with unique genetic of fisher as a threatened species (84 FR not intended us to consider; and (3) characteristics in California and 644). articulate a rational connection between southern Oregon (i.e., NCSO, NSN, and On May 17, 2019, the District Court the facts found and the conclusions SSN). Alternative 1 focused on for the Northern District of California made, including why we changed our conservation of known fishers granted a request by the Service for a 35- conclusion (84 FR at 60278–79, indigenous to this California and day extension to comply with the November 7, 2019).’’ Although this southern Oregon region, and it excluded November 20, 2018, order as a result of discussion centered on a final decision all reintroduced subpopulations delays due to the Federal Government’s regarding the status of the previously established with non-California/Oregon lapse in appropriations that prohibited singular West Coast DPS, and the logical fishers (i.e., SOC and ONP). In addition, the Service from working on this outgrowth leading to that decision from Alternative 1 excluded areas to the determination. The Court’s amended our Revised Proposed Rule, we have north of NCSO where subpopulations of order directed the Service to submit for followed this approach in developing historically indigenous fishers were publication a final listing determination this final rule in its totality, to include likely extirpated. It included both SSN

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and NCSO (which includes NSN), supporting differing genetics between consistent theme regarding management which each have unique genetic subpopulations to supporting the need considerations. Many comments characteristics; this inclusion would for different management pointed to a concept we presented in allow for management of both these considerations. After consideration of the 2014 Proposed Rule that outlined native subpopulations as a single DPS. all of these comments, we moved alternative DPSs based on recognizing In addition, this would allow for forward with a modified Alternative 1 the unique genetic characteristics recovery efforts throughout the in the 2019 Revised Proposed Rule, with within each subpopulation and allowing historical range in California and the exception that we included SOC in for separate management of these two southern Oregon. the DPS (as part of NCSO). In the 2019 population segments (NCSO [including DPS Alternative 2 consisted of two Revised Proposed Rule, we did not NSN and SOC] and SSN). narrowly drawn DPSs around each of specifically state that the DPS was based In light of the numerous comments the extant subpopulations with unique on focusing on conservation of the received during multiple comment genetic characteristics in California and extant subpopulations with unique periods over the last 5 years southern Oregon (i.e., NCSO with NSN, genetic characteristics, but we did recommending we reexamine our DPS and SSN). This alternative also focused explain that the DPS was centered on configuration, we have again on conservation of known fishers what we called the ‘‘historically native’’ reevaluated our DPS approach. We indigenous to this California and subpopulations (i.e., those determined that the most appropriate southern Oregon region with unique subpopulations of known fishers path forward was to evaluate the two genetic characteristics, and it excluded indigenous to the California and population segments ((1) NCSO all reintroduced subpopulations (i.e., southern Oregon region with unique [including NSN and SOC] and (2) SSN) SOC and ONP) established with non- genetic characteristics) and included as individual DPSs (similar to California/Oregon fishers. This SOC because of the recent interbreeding Alternative 2 in the 2014 Proposed Alternative excluded the areas to the with indigenous NCSO fishers. Rule). For each population segment, if north of NCSO where fisher Our 2019 Revised Proposed Rule both the discreteness and significance subpopulations were likely extirpated; it further sought comment regarding its criteria were met, we would then included both NCSO (which includes revised DPS determination (84 FR at evaluate the status for that individual NSN) and SSN subpopulations, which 60279, November 7, 2019). We received DPS. We determined our analysis would each have unique genetic numerous comments regarding the focus on the conservation of extant characteristics; and it allowed for revised DPS determination in response subpopulations historically indigenous management of the subpopulations as to the 2019 Revised Proposed Rule, both to the California and southern Oregon separate DPSs, recognizing the unique during the initial 30-day comment region with unique genetic genetic characteristics within each. In period and in the subsequent 15-day characteristics (as outlined in the 2014 addition, if the magnitude of threats was comment period. Similar to the Proposed Rule) while also allowing for found to be different in the two DPSs, comments received on the 2014 separate management of the two DPSs if this would allow for different Proposed Rule, the comments received either or both were warranted for listing. management for each DPS with regard on the 2019 Revised Proposed Rule The concept of the possible need for to recovery. expressed support for a wide range of different management between the two We received multiple comments on DPS approaches. Various commenters DPSs was further strengthened, in part, our DPS approach and possible suggested reverting back to the three- by the recent limited introduction of alternative DPS configurations in State DPS (i.e., include Washington non-California/Oregon fisher genes into response to the 2014 Proposed Rule. State again), making all subpopulations the NCSO subpopulation via These comments spanned a broad range (NCSO, SSN, NSN, and SOC) individual interbreeding between NCSO and SOC of responses from support for the full DPSs, having two separate DPSs as in fishers. We have now determined that three-State DPS to support for each of Alternative 2, and not including SOC in the singular West Coast DPS the possible Alternatives to support for any DPS configuration. configuration should instead be two other configurations. The basis for the While the comments presented a separate DPSs: The NCSO DPS and the commenters’ positions was equally broad range of positions regarding DPS SSN DPS. varied; these positions ranged from approaches, there was also a relatively BILLING CODE 4333–15–P

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BILLING CODE 4333–15–C petitioned DPS, which included Proposed Rule further announced the The above discussion presents a portions of California, Oregon, and Service’s evaluation of a number of logical outgrowth from our 2019 Washington, but also pointed out that alternative DPSs that may potentially Revised Proposed Rule regarding our the Service had identified smaller areas also be valid DPSs (covering a smaller DPS determination for the following within the larger DPS boundary that entity or entities) and that the Service reasons. First, our 2014 Proposed Rule would also potentially constitute a valid was considering in particular the (79 FR 60419, October 7, 2014) DPS, and that may warrant listing under appropriateness of two of these recognized that for fisher, the Service’s the Act (79 FR at 60438). The 2014 alternatives and seeking public and peer DPS analysis had started with the

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review input on potential DPS extant native subpopulations with Act’s standards for listing, delisting, or alternatives (79 FR at 60438). One of unique genetic characteristics. reclassification (i.e., is the population these alternatives was Alternative 2, Once we determined that the singular segment endangered or threatened). which consisted of two narrowly drawn West Coast DPS should instead be two A population segment of a vertebrate DPSs around the extant subpopulations separate DPSs, we began individually taxon may be considered discrete under with unique genetic characteristics in evaluating the status of the NCSO DPS the DPS policy if it satisfies either one California and southern Oregon; and the SSN DPS. In the 2019 Revised of the following conditions: Alternative 2 is similar to the two DPS Proposed Rule (84 FR 60278, November (1) It is markedly separated from other approaches we use here. Therefore, the 7, 2019), we proposed to list the then- populations of the same taxon as a public has seen this approach presented singular West Coast DPS as a threatened consequence of physical, physiological, before, was aware that we were species under the Act, and we also ecological, or behavioral factors. considering it and thus could anticipate proposed a concurrent rule under Quantitative measures of genetic or that adoption of this approach was section 4(d) of the Act for that DPS. morphological discontinuity may possible, and had several opportunities While the magnitude of the threats provide evidence of this separation. to provide comments on the approach. discussed below have not changed (2) It is delimited by international Second, we outlined the uncertainty substantially from our consideration of governmental boundaries within which associated with our DPS approach in the them in the 2019 Revised Proposed differences in control of exploitation, 2014 Proposed Rule and alerted the Rule, what has changed in this analysis management of habitat, conservation public to this uncertainty. Specifically, is the consideration of their distribution status, or regulatory mechanisms exist our 2014 Proposed Rule stated that we across the ranges of the two separate that are significant in light of section sought peer review and public comment DPSs, as opposed to applying an 4(a)(1)(D) of the Act. If a population segment is considered on the uncertainties associated with the analysis for a singular West Coast DPS, discrete under one or more of the specific topics outlined in the and then how the impact of those conditions described in the Service’s Information Requested section and in threats affects each separate DPS where DPS policy, its biological and ecological the Other DPS Alternatives section. they occur. This final determination significance will be considered in light Specific information from the peer represents a change to that 2019 Revised of Congressional guidance that the reviewers and the public on the Proposed Rule. We now add the SSN authority to list DPSs be used proposed DPS and the two alternatives DPS as an endangered species to the List ‘‘sparingly’’ (see Senate Report 151, 96th informed our final listing decision (70 of Endangered and Threatened Wildlife, Congress, 1st Session). In making this FR at 60441). and we present our finding that the NCSO DPS does not warrant listing determination, we consider available Third, our 2014 Proposed Rule scientific evidence of the DPS’s explained to the public that the DPS under the Act. As detailed below in the General Threat Information section and importance to the taxon to which it approach in our final rule may differ belongs. Since precise circumstances are from the proposed rule as a result of the specific threats discussions for each DPS, these final determinations are likely to vary considerably from case to public comment. We stated that we may case, the DPS policy does not describe determine that the proposed DPS as set based on the best scientific and commercial data available, including all the classes of information that might forth is the most appropriate for fisher be used in determining the biological conservation. Alternatively, through new information received in response to the 2019 Revised Proposed Rule. and ecological importance of a discrete peer review and public comment, we population. However, the DPS policy could determine that one of the Further, we have clearly articulated the rationales for our conclusions. describes four possible classes of alternative DPSs set forth would be most information that provide evidence of a appropriate for the conservation of Distinct Population Segment Analysis population segment’s biological and fisher, and, therefore, any final listing Under section 3(16) of the Act, we ecological importance to the taxon to determination may differ from this may consider for listing any species, which it belongs. As specified in the proposal (79 FR at 60438). As outlined including subspecies, of fish, wildlife, DPS policy, this consideration of the above, we have explained the basis for or plants, or any DPS of vertebrate fish population segment’s significance may this changed DPS and have articulated or wildlife that interbreeds when mature include, but is not limited to, the a rational connection between the facts (16 U.S.C. 1532(16)). Such entities are following: found and our conclusion by which we considered eligible for listing under the (1) Persistence of the DPS in an have determined to separate the singular Act (and, therefore, are referred to as ecological setting unusual or unique to West Coast DPS configuration into two listable entities), should we determine the taxon; separate DPSs. that they meet the definition of an (2) Evidence that loss of the DPS The Secretary has discretion when endangered or threatened species. would result in a significant gap in the determining DPSs based upon the Under the Service’s DPS Policy (61 FR range of a taxon; Congressional guidance that the 4722, February 7, 1996), three elements (3) Evidence that the DPS represents authority to list DPS’s be used ‘. . . are considered in the decision the only surviving natural occurrence of sparingly’ while encouraging the concerning the determination and a taxon that may be more abundant conservation of genetic diversity and in classification of a possible DPS as elsewhere as an introduced population consideration of available scientific threatened or endangered. These outside its historical range; or evidence of the discrete population elements include: (4) Evidence that the DPS differs segment’s importance to the taxon to (1) The discreteness of a population in markedly from other populations of the which it belongs (61 FR 4722, 4725, relation to the remainder of the species species in its genetic characteristics. February 7, 1996). Our DPS approach of to which it belongs; To be considered significant, a evaluating the two fisher population (2) The significance of the population population segment needs to satisfy segments ((1) NCSO [including NSN and segment to the species to which it only one of these criteria, or other SOC] and (2) SSN) as separate DPSs belongs; and classes of information that might bear encourages the conservation of genetic (3) The population segment’s on the biological and ecological diversity by focusing on conserving conservation status in relation to the importance of a discrete population

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segment, as described in the DPS policy. railroad track on both sides. These the NCSO DPS are also genetically Below, we summarize discreteness and impediments further restrict the ability distinct from those found in the SSN significance for each of the DPSs. of fishers to surpass this obstacle. DPS, as we describe in Service 2016 (pp. In addition, the NCSO DPS is also 134–135). We note the NCSO DPS does Northern California/Southern Oregon markedly separate from the SSN DPS to include the translocated SOC DPS of Fisher (NCSO DPS) the southeast by approximately 130 mi subpopulation, which was established Discreteness (209 km) from the southern end of the with fishers not native to this region The NCSO DPS is markedly separate NCSO DPS to the northern end of the (i.e., British Columbia and Minnesota) from other North American fisher SSN DPS. This distance, although less and which do not share all the same populations to the east by enormous than that between the NCSO DPS and genetic characteristics of the native Washington fishers, is still several times distances, geographical barriers, fishers. However, it is highly unlikely beyond the known maximum dispersal unsuitable habitat, and urban that the unique genetic characteristics distances for fishers (Zielinski et al. development. Fishers in this DPS are that have evolved over time as native 2005, p. 1402). The intervening habitat separated from the Rocky Mountains fishers in the NCSO DPS have adapted between the NCSO DPS and SSN DPS and the rest of the fisher taxon in the to the environmental conditions of this is additionally characterized by habitat central and eastern United States by area will be lost as a result of this very that is highly altered with reduced natural physical barriers including the limited introduction of genes from forest density and increased human non-forested high desert areas of the fishers not indigenous to this region. development of the landscape further Great Basin in Nevada and eastern Although there is interbreeding between limiting potential fisher dispersal across Oregon. Other physical barriers that SOC and indigenous fishers, we base this region (Zielinski et al. 2005, p. our conclusion on the fact that SOC separate the NCSO DPS from Rocky 1,403). Mountain and eastern United States fishers do not appear to have expanded In summary, the NCSO DPS is their range far from their original fisher populations include large areas geographically isolated from all other without forests, including urban and reintroduction area since their populations of the species. Therefore, translocation over 40 years ago (Barry rural open-canopied areas, agricultural the marked separation condition for development, and other non-forested 2018, p. 23). We therefore conclude that discreteness is met by geographical the loss of fishers in the NCSO DPS areas. barriers, urban development, unsuitable The NCSO DPS is also markedly would result in a reduction of the habitat, and distances that are beyond species’ overall genetic diversity. separate from fisher populations to the the known dispersal distance of fishers. north by approximately 560 miles (mi) In light of the above, we conclude that (900 kilometers (km)) (to the current Significance the NCSO DPS is significant to the populations of fishers in Canada) and For the NCSO DPS, we found that a fisher taxon. 270 mi (430 km) (to the reintroduced combination of several of the criteria Summary fisher populations in Washington). listed above provide evidence of its Given that both the discreteness and These distances are well beyond the biological and ecological importance to the significance elements of the DPS various reported fisher dispersal the taxon. First, we note that the NCSO policy are met for fisher in the Northern distances (as described in more detail in DPS represents a large portion of the California/Southern Oregon portion of Service 2016, pp. 13–14). An additional taxon’s range along the Pacific coast, its range, we find that the NCSO DPS of component contributing to marked and its loss would leave a significant fisher is a valid DPS. Therefore, the separation between the NCSO DPS and gap between the SSN DPS and all fisher fishers in Washington is the Columbia populations to the north. While we NCSO DPS of fisher is a species under River and adjacent human recognize that the NCSO DPS is the Act. developments (e.g., roads and towns); geographically separated from other Southern Sierra Nevada DPS of Fisher these likely act as a physical fisher populations, and this separation (SSN DPS) impediment to crossing by fishers likely precludes the NCSO DPS from dispersing in either direction. While ever acting as a connection for a Discreteness juvenile fishers dispersing from natal contiguous range of fishers from the Similar to the NCSO DPS, the SSN areas are capable of moving long SSN DPS to Canada, we note that its DPS is markedly separate from other distances and navigating various loss would still result in an even greater North American fisher populations to landscape features such as highways, break in the west coast range of fishers the east by enormous distances, rivers, and rural communities to than what currently exists. Furthermore, geographical barriers, unsuitable establish their own home range (Service the NCSO DPS supports thousands of habitat, and urban development. Fishers 2016, pp. 13–14), the magnitude of these individuals, while the SSN supports just in this DPS are separated from the impediments and the distance between a few hundred, and populations in Rocky Mountains and the rest of the the NCSO DPS and Washington State Washington are still small. Therefore, a taxon in the central and eastern United fishers would preclude this possibility. loss of the NCSO DPS would mean the States by natural physical barriers Therefore, it is extremely unlikely that majority of the fishers in the West Coast including the non-forested high desert any transient individuals from the States would be lost. areas of the Great Basin in Nevada and NCSO DPS could disperse far enough to Significance is also demonstrated by eastern Oregon. Other physical barriers reach the Washington range of the NCSO DPS’s marked difference from that separate the SSN DPS from Rocky reintroduced fishers, and even if they other populations of the species in their Mountain and eastern United States attempted to do so, they would likely genetic characteristics. The NCSO DPS fisher populations include large areas of not be able to cross the Columbia River. is primarily composed of fishers native unsuitable habitat such as urban and Not only is the river especially wide and to this region of the country and which rural open-canopied areas, agricultural deep year-round, but in the Cascade are genetically distinct from fishers in development, and other non-forested Range, it is bordered on one side by an the remainder of North America (for areas. interstate highway, a two-lane State example, Canada, Rocky Mountains, As noted above, the SSN DPS is highway on the other side, as well as a and Great Lakes). In addition, fishers in markedly separate from the NCSO DPS

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by approximately 130 mi (209 km). The Summary this area, whereas surveys in the intervening habitat between the NCSO Given that both the discreteness and southern Oregon Cascades suggest DPS and SSN DPS is highly altered with the significance elements of the DPS fishers in this locale may be shifting to reduced forest density and increased policy are met for fisher in the Southern the south (Barry 2018, pp. 22–23) human development of the landscape, Sierra Nevada portion of its range, we compared to their distribution in the further limiting potential fisher find that the SSN DPS of fisher is a valid late 1990s (Service 2014 and 2016, dispersal across this region (Zielinski et DPS. Therefore, the SSN DPS of fisher entire, though see current condition al. 2005, p. 1,403). In addition, the SSN is a species under the Act. section for NCSO). Fishers in the DPS is also considerably farther away southern Oregon Cascades were from the Washington State and Canada Background translocated from British Columbia and Minnesota circa 1980. In addition, a fisher populations than the NCSO DPS, General Species Information clearly meeting the marked separation translocation of fishers from condition of discreteness. Species Information and Distribution northwestern California to the northern Sierra Nevada (i.e., NSN) occurred in In summary, the SSN DPS is The fisher is a medium-sized, light brown to dark blackish-brown mammal 2009. geographically isolated from all other Fishers now occurring and found only in North America, with the populations of the species. Therefore, reproducing in Washington were face, neck, and shoulders sometimes the marked separation condition for established using fishers translocated being slightly gray, and the chest and discreteness is met by geographical from outside this three-State region. underside often having irregular white barriers, urban development, unsuitable Fishers from British Columbia were patches. The fisher is classified in the habitat, and distances that are beyond reintroduced to the Olympic Peninsula order Carnivora, family Mustelidae, the known dispersal distance of fishers. from 2008 to 2010 (Happe et al. 2017, which is a family that also includes p. viii; Happe et al. 2020, p. 345) and weasels, mink, martens, and otters Significance to the Washington Cascade Range south (Service 2016, p. 8). The occurrence of For the SSN DPS, we also found that of Mt. Rainier from 2015 to 2017 (Lewis fishers at regional scales is consistently et al. 2018, p. 5). Reproduction has been a combination of the criteria listed associated with low- to mid-elevation above provides evidence of the documented in both areas. Beginning in coniferous and mixed conifer and 2018, fishers from Alberta were released biological and ecological importance to hardwood forests with characteristics of the fisher taxon. First, we note that the in the northern Washington Cascades in mid- and late-successional forests (e.g., North Cascades National Park; all SSN DPS represents the southernmost diverse successional stages, moderate to animal translocations are expected to be periphery of the taxon’s range. Loss of dense forest canopies, large-diameter completed in 2020 (Hayes and Lewis the SSN DPS would shift representation trees, coarse downed wood, and 2006, p. 35; Lewis et al. 2019, pp. 19– of the taxon at its southern boundary singular features of large snags, tree 20). approximately 400 miles northward to cavities, or deformed trees). Throughout Fishers were once well distributed the range of the NCSO DPS. their range, fishers are obligate users of throughout their historical range in the We also note that the SSN DPS differs tree or snag cavities for denning, and habitats described above. In Oregon and markedly from other populations of the they select denning and resting sites California, outside of the existing NCSO species in its genetic characteristics. with a high proportion of characteristics DPS and SSN DPS (see Figure 1, above), The SSN DPS is wholly composed of associated with late-successional fishers are considered likely extirpated, fishers native to this region of the forests, such as snags, down wood, and though occasional sightings, verifiable country, and these fishers are vertical and horizontal diversity. These and unverifiable, are reported. genetically distinct from fishers in the characteristics are maintained and Additionally, in California, recent remainder of North America (for recruited in the forest through survey efforts have not detected fishers example, Canada, Rocky Mountains, ecological processes such as fire, insect- south of the reintroduced NSN and Great Lakes). In addition, fishers in related tree mortality, disease, and subpopulation or north of the SSN DPS. decay (e.g., Service 2016, pp. 64, 123– the SSN DPS are also genetically Additional information on the 124). distinct from those found in the NCSO species’ biology and distribution is Fishers on the west coast of the DPS. There is high genetic divergence described in the final Species Report continent have historically occurred in between the SSN DPS and NCSO DPS (Service 2016, pp. 9–12, 25–53). British Columbia, Washington, Oregon, with the populations being separated for and California. Fishers indigenous to General Threat Information thousands of years (Tucker et al. 2014, the west coast in the contiguous United Section 4 of the Act (16 U.S.C. 1533) p. 3). The SSN DPS has only a single States were historically well distributed and its implementing regulations (50 mitochondrial DNA haplotype, which is in the habitats described above, from the CFR part 424) set forth the procedures genealogically unique from the rest of State of Washington south through for determining whether a species is an the fisher taxon, including the NCSO Oregon, and into northern California ‘‘endangered species’’ or a ‘‘threatened DPS (Knaus et al. 2011, pp. 7, 11; and the Sierra Nevada mountains. species.’’ The Act defines an Tucker 2019, pers. comm.). In addition, Subpopulations of these indigenous endangered species as a species that is the SSN DPS has a unique distribution fishers still occur in northern California/ ‘‘in danger of extinction throughout all of alleles in comparison to the NCSO southwestern Oregon and the Sierra or a significant portion of its range,’’ and DPS (Tucker et al. 2012, p. 6). We Nevada; however, populations of a threatened species as a species that is therefore conclude that the loss of indigenous fishers were extirpated from ‘‘likely to become an endangered fishers in the SSN DPS would result in Washington (Lewis and Hayes 2004, p. species within the foreseeable future a reduction of the species’ overall 1) and northern Oregon (Aubry and throughout all or a significant portion of genetic diversity. Lewis 2003, pp. 81–82). Recent surveys its range.’’ The Act requires that we In light of the above, we conclude that in the northern Oregon Cascades determine whether any species is an the SSN DPS is significant to the fisher yielded no fishers (Moriarty et al. 2016, ‘‘endangered species’’ or a ‘‘threatened taxon. entire), suggesting they remain absent in species’’ because of any of the following

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factors: (A) The present or threatened or likely to affect them in the future, are As we conducted our threats analyses, destruction, modification, or evaluated and addressed in the final we began under the premise that those curtailment of its habitat or range; (B) Species Report (Service 2016, pp. 53– with the greatest potential to become Overutilization for commercial, 162). The term ‘‘foreseeable future’’ significant drivers of the future status of recreational, scientific, or educational extends only so far into the future as the both DPSs were: Wildfire and wildfire purposes; (C) Disease or predation; (D) Service can reasonably determine that suppression; tree mortality from The inadequacy of existing regulatory both the future threats and the species’ drought, disease, and insect infestation; mechanisms; or (E) Other natural or response to those threats are likely (50 the potential for climate change to manmade factors affecting its continued CFR 424.11(d)). For fisher, in exacerbate wildfire and tree mortality; existence. These factors represent broad determining the foreseeable future, the threats related to vegetation categories of natural or human-caused immediacy of each threat was assessed management; and exposure to toxicants. actions or conditions that could have an independently based upon the nature of Upon determining that the previous effect on a species’ continued existence. the threat and time period that we can singular West Coast DPS configuration In evaluating these actions and be reasonably certain the threat is acting should instead be two separate DPSs, conditions, we look for those that may on fisher populations or their habitat. In we then also modified our premise have a negative effect on individuals of general, we considered that the regarding threats with the potential to the species, as well as other actions or trajectories of the threats acting on become significant drivers of status, and conditions that may ameliorate any fisher subpopulations across the DPS’s added to the above list of threats: The negative effects or may have positive range could be reasonably anticipated potential for effects from small effects. over the next 35–40 years. The reader is population size; disease or predation; We use the term ‘‘threat’’ to refer in directed to the Species Report (Service and collision with vehicles. While our general to actions or conditions that are 2016, entire) for a more detailed assessment of the status of each DPS known to or are reasonably likely to discussion of the threats summarized in was based on analysis of all identified negatively affect individuals of a this document (http://www.fws.gov/cno/ threats acting upon them, including the species. The term ‘‘threat’’ includes fisher/). However, please note that our cumulative effects of those threats, we actions or conditions that have a direct most recent consideration of new data are only presenting our detailed impact on individuals (direct impacts), since 2016 (including comments and analyses on these specific, potentially as well as those that affect individuals information received during the two significant threat drivers common to through alteration of their habitat or comment periods associated with the both DPSs for the purposes of this required resources (stressors). The term 2019 Revised Proposed Rule) coupled rulemaking. We refer the reader to the ‘‘threat’’ may encompass—either with our reevaluation of the entirety of Species Report (Service 2016, entire) for together or separately—the source of the the best available scientific and full detailed analyses of all the other action or condition or the action or commercial information is represented individual threats. condition itself. and summarized in the various analyses As these potentially significant threat However, the mere identification of below. drivers were relevant to both DPSs, any threat(s) does not necessarily mean much of the fundamental information that the species meets the statutory Our analyses below represent an pertaining to the threats was also definition of an ‘‘endangered species’’ or evaluation of the biological status of the applicable to both DPS analyses. a ‘‘threatened species.’’ In determining two DPSs, based upon our assessment of Although the ultimate conclusion about whether a species meets either the effects anticipated for the identified the significance of each threat varied definition, we must evaluate all threats, consideration of the cumulative between the DPSs, below we present identified threats by considering the impact of all effects anticipated from the scientific information about these expected response by the species, and identified threats, and how that threats common to both DPSs, followed the effects of the threats—in light of cumulative impact may affect each by DPS-specific evaluations. those actions and conditions that will DPS’s continued existence currently and ameliorate the threats—on an in the future. We used the best available Wildfire and Wildfire Suppression individual, population, and species scientific and commercial data, and the Our evaluation includes both the level. We evaluate each threat and its expert opinions of the analysis team effects of wildfire on fisher habitat as expected effects on the species, and members. The threats identified as well as those activities associated with then analyze the cumulative effect of all having the potential to act upon both wildfire suppression that may result in of the threats on the species as a whole. DPSs include: habitat-based threats, changes to fisher habitat (for example, We also consider the cumulative effect including high-severity wildfire, backburning, fuel breaks, and snag of the threats in light of those actions wildfire suppression activities, and removal). Naturally occurring fire and conditions that will have positive post-fire management actions; climate regimes vary widely within the range of effects on the species—such as any change; tree mortality from drought, both the NCSO DPS and SSN DPS existing regulatory mechanisms or disease, and insect infestation; (Service 2014, p. 58), and fisher habitat conservation efforts. The Secretary vegetation management; and human has been burned across a spectrum from determines whether the species meets development (Factor A). We also low- to high-severity. the definition of an ‘‘endangered evaluated potential threats related to Mixed-severity wildfire includes species’’ or a ‘‘threatened species’’ only direct mortality of fishers including patches of low-severity wildfire and after conducting this cumulative trapping and incidental capture (Factor patches of high-severity wildfire (Jain et analysis and describing the expected B), research activities (Factor B), disease al. 2012, p. 47). At the landscape scale, effect on the species now and in the or predation (Factor C), collision with mixed-severity wildfire effects to fisher foreseeable future. In our determination, vehicles (Factor E), exposure to habitat may affect an area’s ability to we correlate the threats acting on the toxicants (Factor E), and potential support fishers for only a short period species to the factors in section 4(a)(1) effects associated with small population of time due to the patchy nature of of the Act. size (Factor E). Finally, we evaluated the burned and unburned areas. Potential threats currently acting inadequacy of existing regulatory Additionally, a beneficial aspect of upon both the NCSO DPS and SSN DPS, mechanisms (Factor D). mixed-severity wildfires (as opposed to

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just high-severity wildfires) is that these causes wildfires to be more frequent and RCP 8.5. Their analysis indicates that wildfires may contribute to the larger with an overall increase in the extreme heat events are expected to regeneration of the hardwood total area burned (Westerling 2016, pp. increase in frequency, duration, and component of mixed-conifer forest used 8–9). Throughout the western United intensity by the 2050s due to warming by fisher (Cocking et al. 2012, 2014, States there has been an increase in the temperatures (RCP 4.5 = mean annual entire). Further these types of fires can patch size and total area of fires in temperature increase predicted on sustain patches of unburned refugia that recent decades. The evidence for an average 3.6 degrees Fahrenheit (°F) (2.0 are important for maintaining patches of increasing area of high-severity fire is degrees Celsius (°C)); RCP 8.5 = mean higher canopy cover, acting as a source mixed given that studies present annual temperature increase predicted for future tree regeneration, and different historical levels of high- on average 5.0 °F (2.8 °C). Summers are providing habitat for fisher (Blomdahl et severity fire (Mallek et al. 2013, pp. 11– expected to warm more than the annual al. 2019, p. 1,049). Mixed-severity 17; Stephens et al. 2015, pp. 12–16; average and will likely become drier. wildfire may reduce some elements of Hanson and Odion 2016, pp. 12–17; Annual precipitation is projected to fisher habitat temporarily, but also helps Odion et al. 2016, entire; see Spies et al. increase slightly, although with a high to contribute to the ecological processes 2018, p. 140 for summary of recent degree of uncertainty. Extreme heat and necessary to create tree cavities and literature), but the scientific consensus precipitation events are expected to other decay and structural abnormalities accepts that mixed conifer forests were increase in frequency, duration, and essential for denning and resting fishers characterized by areas burned at low-, intensity. (Weir et al. 2012, pp. 237–238). Low- moderate-, and high-severity, with In California, information from Pierce severity wildfire is unlikely to remove higher proportions of low-severity than et al. (2013) and Safford et al. (2012) habitat, and post-wildfire areas that is currently observed (Safford and used multiple general circulation burned at low-severity are likely still Stevens 2017, p. 50). Given projected models and downscaling with regional used by fishers (Naney et al. 2012, p. 6; changes in climate, forests are expected climate models to develop probabilistic Truex and Zielinski 2013, p. 90). to become more vulnerable to wildfires projections of temperature and The potential for large, high-severity over the coming century. precipitation changes over California by wildfires to affect fisher habitat and Recent publications on wildfire the 2060s. Predictions indicate an fisher populations is concentrated in occurrence and severity within the annual mean temperature increase of northern California–southwestern NCSO DPS and SSN DPS continue to 4.3 °F (2.4 °C) by 2060 (Pierce et al. Oregon and the Sierra Nevada areas as support our conclusions that fire is 2013, p. 844). Similarly, and more compared to the remainder of the likely to have a negative impact on recently, Bedsworth et al. (2018, entire) fisher’s historical range in the West fisher populations but will depend on summarizes 44 technical peer-reviewed Coast States (Service 2014, pp. 62–63). fire size, burn severity, and proximity to reports to provide a California-wide In general, high-severity wildfire can occupied habitat (79 FR 60419, at climate change assessment. Under two alter fisher habitat by removing forest 60429, October 7, 2014). Recent modeled scenarios, average canopy, large trees, and structurally information on fishers’ behavioral and temperatures are projected to increase diverse understories, which can take localized population response to by 2.5 to 2.7 °F (1.4 to 1.5 °C) in the from decades to a century or more to wildfires is available and discussed early century (2006 to 2039) and 4.4 to regrow (Service 2014, pp. 59–60), but it below in the NCSO DPS and SSN DPS 5.8 °F (2.4 to 3.2 °C) in the mid-century may also provide foraging opportunities specific discussions. (2040 to 2069) (Bedsworth et al. 2018, for fishers since these post-fire areas are p. 23). Precipitation models suggest that Climate Change often abundant with small mammals northern California may become wetter, that fishers eat (Hanson 2013, p. 27; Overall, fisher habitat is likely to be while most southern parts of California Service 2016, p. 66). For example, there affected by changing climate conditions, will become drier (Bedsworth et al. is evidence of fishers associated with but the severity will vary, potentially 2018, p. 25). The authors caution that high-severity burned areas, or a mix of greatly, among different regions, with ‘‘due to large annual variation, changes moderate- and high-severity burns effects to fishers ranging from negative, in annual mean or long-term (Service 2016, p. 66), particularly if the neutral, or potentially beneficial. precipitation are not the best metrics to area was structurally complex prior to Climate throughout the West Coast understand’’ the effects to changes in the fire (Hanson 2013, p. 28). However, States is projected to become warmer precipitation in California (Bedsworth et another study found fishers avoiding over the next century, and in particular, al. 2018, p. 25). Specifically, the models areas of high- and moderate-severity fire summers will be hotter and drier, with project less overall precipitation with (Thompson et al. 2019a, p. 15), so there heat waves that are more frequent more extreme daily precipitation, inter- is likely a threshold in high-severity (Hayhoe et al. 2004, p. 12,423; Tebaldi annual precipitation will be more patch size that influences fisher use of et al. 2006, pp. 191–200; Mote and erratic, and the number of dry years will these areas (also see individual DPS Salathe´ 2010, p. 41; Salathe´ et al. 2010, increase (Bedsworth et al. 2018, p. 25 sections). p. 69; Cayan et al. 2012, pp. 4, 10; Mote citing others; Polade et al. 2017, p. 1). Within shrub, grassland, and forested et al. 2013, p. 34; Pierce et al. 2013, pp. Higher temperatures during spring lands across the western United States 844, 848; Ackerly et al. 2018, pp. 6–8; and summer, coupled with early snow (including the Sierra Nevada, southern Bedsworth et al. 2018, pp. 23, 26, 30; melt, will reduce the moisture of both Cascades, and Coast ranges), the Dettinger et al. 2018, p. 5; Grantham live fuels and dead surface fuels by wildfire season length increased over 2018, p. 6). increasing evaporative demands during each of the last four decades, from 65 In Oregon, Dalton et al. (2017, pp. 4, the dry season and lengthening the fire days in the 1970s to 140 days in the 8) evaluated greenhouse gas emissions season (Keeley and Syphard 2016, pp. 2000s (Westerling 2016, pp. 3, 8, 10). via global climate models with future 2–3; Restaino and Safford 2018, p. 500). The lengthening of the wildfire season emission pathways called In addition, models project an increase is largely due to declining mountain ‘‘representative concentration in lightning frequency that may be snowpack and earlier spring snowmelt, pathways’’ (RCPs). They considered associated with an increase in potential which contributes to a decrease in multiple greenhouse gas emission fire ignitions (Restaino and Safford vegetation moisture; this scenario scenarios, including both RCP 4.5 and 2018, p. 500).

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Studies specific to predicting the closure, large basal area of conifer and The best available information effects of climate change on suitable hardwood trees, and diameter and age of indicates there is a link between fisher habitat have produced a wide dominant conifers. To date, climate changing climate conditions and the range of results. Ecotype conversion change has not significantly affected resulting changes to overall habitat from conifer forest to woodland, resting habitat for fishers, which, suitability and availability for fishers shrubland, or grassland will result in according to Zielinski and Gray (2018, throughout their range. There is also a the loss of suitable fisher habitat. This pp. 899, 903), has remained stable over link between changing climate type of shift is predicted, for example, the past 20 years across the California- conditions and the potential to increase in the southern Sierra Nevada (Gonzalez portion of the range, although habitat fisher stress levels when habitat changes et al. 2010, Figure 3; Lawler et al. 2012, suitability tends to be lower on private occur. More specifically, these changes p. 388; Dettinger et al. 2018, pp. 31–34; lands than public lands. However, when affect the amount and distribution of Restaino and Safford 2018, p. 500). On considering resting habitat trends over habitat necessary for female fishers to be the other hand, shifts from conifer forest these 20 years to determine potential able to have places to den and raise to hardwood-dominated mixed forest in future resting habitat conditions in light their young. We provide three examples the southern Sierra Nevada or Klamath of climate change projections, data from below. region could either increase or decrease the Sierra National Forest (within a First, ongoing climate change in the habitat available to fishers (Lawler et portion of the SSN DPS) indicates the California is likely to result in al. 2012, pp. 384–386; Loarie et al. 2008, beginning of a negative trend in resting significant or amplified wildfire p. 4 and Figure 4). Given the more habitat suitability (Zielinski and Gray activity, with the area burned and fire significant contribution of hardwood 2018, p. 903), whereas resting habitat severity likely to increase (Hurteau et al. trees to fisher habitat in the drier parts examined within the NCSO DPS varied 2019, pp. 1, 3; Moritz et al. 2018, p. 36). of both the NCSO DPS and SSN DPS, a greatly (i.e., suitable resting habitat This in turn can result in reduced shift to increasing hardwoods in more decreased in the Shasta-Trinity National denning habitat availability for fishers coastal or higher elevation forest types Forest, increased in the Six Rivers (e.g., Sheehan et al. 2015, pp. 20–22; could improve habitat, but shifts to National Forest, and remained Dalton et al. 2017, p. 46). hardwood-dominated stands may also unchanged over time for both the Second, under modeled increases in reduce protective cover from rain and Klamath and Mendocino National drought conditions, tree mortality and snowfall (Suffice et al. 2019, pp. 10, 11, Forests). large-scale high-severity wildfire are 13). Nevertheless, trees are long-lived likely to increase in frequency, size, and In addition to the potential climate and mature forests can persist under severity, especially if fuel loads in change effects to fisher habitat suboptimal conditions, and these factors forests are not decreased (Young et al. discussed above, some researchers have can prevent better-suited vegetation 2017, p. 78; Westerling and Bryant 2008, suggested climate change may cause from becoming established until pp. S244–S248; Abatzoglou and direct effects to fishers, including disturbance removes the original forest Williams 2016, pp. 11,770, 11,773; increased mortality, decreased (Sheehan et al. 2015, p. 27). Bedsworth et al. 2018, pp. 29–30; Larvie reproductive rates, alterations in Consequently, the increase in the et al. 2019, p. 1; Westerling 2018, pp. hardwood component of fisher habitat behavioral patterns, and range shifts. 21–23). Some models suggest that fire in predominantly conifer areas may not Fishers may be especially sensitive, severity may be independent from fire occur until after fires have changed the physiologically, to warming summer intensity; thus, a lower-intensity fire composition of the existing stand to temperatures (Zielinski et al. 2004, p. could kill more trees if they are also allow hardwood establishment. All of 488; Slauson et al. 2009, p. 27; Facka experiencing a severe drought (Restaino these circumstances add to the 2013, pers. comm.; Powell 2013, pers. and Safford 2018, p. 500). Although we uncertainty associated with climate comm.). As a result, researchers (e.g., can expect that seasonal summer change and how it relates to fisher. Burns et al. 2003, Zielinski et al. 2004, dryness may prolong future droughts, it Other studies suggest that climate Lawler et al. 2012, Olson et al. 2014) is unknown whether droughts in the change will adversely impact forest theorize that fishers likely will either future will be worse than our worst habitat by intensifying large-scale, high- alter their use of microhabitats or shift droughts in the past (Keeley and severity wildfire, drought, and tree their range northward and upslope, in Syphard 2016, p. 6; Bedsworth et al. mortality (Kadir et al. 2013, pp. 132, order to avoid the thermal stress 2018, pp. 26, 57). Regardless, it appears 137; Westerling 2016, pp. 1–2; associated with increased summer that climate change is intensifying the Westerling 2018, pp. 21–23; Bedsworth temperatures. Preliminary research on effects of drought, given that changing et al. 2018, p. 64; Dettinger et al. 2018, fisher occupancy and climate begins to climate conditions are estimated to have pp. 28–29; Stephens et al. 2018a, p. 77; support these theories. For example, contributed 5 to 18 percent to the Stephens et al. 2018b, p. 162; Restaino during a drought in central and severity of one of the worst recent and Safford 2018, pp. 493–505). A wide southern California from 2012 to 2015, droughts in 20th-century California range of assumptions and caveats fisher utilized higher elevation areas history (Williams et al. 2015, p. 6,819; typically accompanies these types of that were otherwise inaccessible due to Keeley and Syphard 2016, p. 6). The predictions. For example, fire modeling snowpack during other years (Tucker combination of drought and wildfire can shows a decline in future 2019, pers. comm.). Although fisher result in loss of adequate forest-canopy (approximately 100 years) fire occur across a wide range of cover and individual trees that provide intensities after the existing woody precipitation levels and minimum habitat suitable for denning female vegetation is burned (Restaino and temperatures, and appear able to utilize fishers (e.g., CBI 2019a, p. 9). Safford 2018, p. 499), but it is uncertain higher elevations in years with less Third, the observed increases in if the resulting vegetation and snowpack, it is unknown how the wildfire activity in Oregon and composition will be suitable for fisher. interaction of vegetation, fire regimes, California are partially due to climate Variables predicting fisher resting and competition with other species will change; increasing wildfire activity is habitat as described by Zielinski and influence future fisher occupancy expected under future warming, which Gray 2018 (p. 903) include stand patterns in a changing climate (Zielinski in turn can increase tree mortality from characteristics such as high canopy et al. 2017, pp. 542–543). disease and insects like mountain pine

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beetles (Dalton et al. 2017, p. 46; magnitude and intensity of past timber consider the natural range of variation Bedsworth et al. 2018, p. 64). harvest is one of the main reasons in forest structure, distribution, and Widespread tree mortality (climate fishers have not recovered in the composition when identifying and related or not) is likely to result in western United States as compared to protecting valuable habitat elements fishers experiencing reduced fitness the northeastern United States (Service (Thompson et al. 2019b, pp. 13–14). (e.g., a positive relationship between 2014, pp. 54–56). At the time of the While historical loss of mature and higher amounts of tree mortality and 2014 Proposed Rule, we stated that older forests via timber harvest through higher cortisol levels in fishers; vegetation management techniques much of the 1900s resulted in a Kordosky 2019, pp. 14, 36) and an have, and can, substantially modify the substantial loss of fisher habitat in overall reduction in forest-stand overstory canopy, the numbers and California and Oregon, harvest volume conditions suitable for denning (CBI distribution of structural elements has sharply declined throughout this 2019a, entire; Green et al. 2019a, pp. 3– available for use by fisher, and the area since 1990, primarily on Federal 4). Most forests will experience some ecological processes that create them. lands, but also on non-Federal lands. form of climate stress by the late 21st An increase in open areas, such as those Although timber harvest is still ongoing century and higher temperatures will resulting from timber harvest, may throughout the NCSO and SSN DPSs, result in more droughts in California, increase the risk of predation on fishers habitat ingrowth (i.e., forest stands revealing the interconnected nature of by bobcats and other predators that becoming habitat as a result of forest climate, wildfire, and tree mortality that frequent these areas (see the Predation succession) is also occurring, offsetting collectively can shift forest composition and Disease section below). Overall, some of those losses. We address this for and structure (Larvie et al. 2019, pp. 12– fisher home ranges comprise mosaics of each of the DPSs below. 14; Restaino and Safford 2018, p. 502) forest-stand types and seral (stand age) Exposure to Toxicants and further challenge the ability of stages but often with a high proportion Wildlife can encounter a wide range fishers to locate suitable habitat. of mid- to late-seral forests (Raley et al. of chemicals in the environment. 2012, p. 231). Tree Mortality From Drought, Disease, Fertilizers and pesticides (e.g., and Insect Infestation Fishers occupy managed landscapes herbicides, insecticides, and In our 2019 Revised Proposed Rule, and stands where timber harvest and rodenticides) are among the most this section was titled ‘‘Forest Insects other vegetation management activities common chemicals wildlife are exposed and Tree Diseases’’; we have changed occur; the degree to which fishers tend to and impacted by, especially near the title to more accurately describe the to be found in these areas often depends urban and agricultural areas. Of these threat. Localized tree mortality from on a multitude of factors, including the chemicals, the rodenticides are the insect outbreaks and tree diseases are scale, intensity, and rate of activities; longest lasting and therefore the easiest natural processes, and they provide the composition and configuration of to test for, track, and understand structures used by fisher for rest and suitable habitat; and the amount and impacts to species. Both the draft and den sites as well as their prey. However, type of retained legacy structures final Species Reports detail the widespread insect and disease outbreaks (Service 2016, pp. 59–60; Thompson exposure of fishers to rodenticides in can alter the overall distribution and and Clayton 2016, pp. 11–16, 22; Niblett Oregon and California (Service 2014, abundance of fisher habitat. For et al. 2017, pp. 14–17; Marcot et al. pp. 149–166; Service 2016, pp. 141– example, severe drought events in 2018, p. 400; Powell et al. 2019, entire; 159). California since 2010, combined with Parsons 2018, pp. 31, 53–55, 63; Purcell The rodenticides impacting fishers insect outbreaks and tree diseases, have et al. 2018, pp. 60–61, 69–70). Fishers include first- and second-generation led to more than 147 million dead trees tolerate some clearcuts in their home anticoagulant rodenticides and in California (California Department of ranges, though the mean proportion neurotoxicant rodenticides. First- Forestry and Fire Protections (CAL tends to be below 25 percent of their generation anticoagulant rodenticides FIRE) and USFS 2019, no page number). home-range area (Powell et al. 2019, p. are in a bait form that rodents consume Although both the NCSO DPS and SSN 23). Fishers are also observed denning for several consecutive feedings (i.e., DPS experienced tree mortality during in areas where as much as 25 percent of sublethal doses) to deliver a lethal dose. the recent drought, the magnitude of the area near the den sites is in openings Second-generation rodenticides are this effect on the landscape differed (Niblett et al. 2017, p. 17). Some level significantly more potent than first- tremendously between each DPS (CAL of open areas or younger stands may generation rodenticides, and a lethal FIRE and USFS 2019, no page number). provide suitable prey for fishers dose can be ingested in a single feeding. The highest levels of tree mortality (Parsons 2018, pp. 26–29, 53–55). Yet Additionally, second-generation occur in the southern Sierra Nevada due even in these situations, fishers are rodenticides are more likely than first- to increased susceptibility to forest associated with forests that contain generation rodenticides to poison insects and tree disease from the severe structures associated with older forests, predatory wildlife (e.g., fishers) that eat drought while most of the NCSO DPS such as complex canopies, down wood, live or dead poisoned prey because they experienced background levels (0–5 hardwoods, and trees with microsites are more persistent in the environment. dead trees per acre) of tree mortality conducive to denning, resting, or Neurotoxicant rodenticides are (CAL FIRE and USFS 2019, no page supporting prey (Niblett et al. 2017, pp. delivered in either single or multiple number; California Tree Mortality Task 16–17; Powell et al. 2019, pp. 19–23). doses and have highly variable potency Force 2020, entire). Therefore, for vegetation management it (multiple hours or days). Both first- and is important to maintain decadent second-generation anticoagulant Vegetation Management structures that serve as den and rest rodenticides as well as neurotoxicant Vegetation management techniques of trees and that likely required much time rodenticides are used to kill small the past (primarily timber harvest) have and site-specific conditions to develop mammals that are destroying crops. been implicated as one of the two (Matthews et al. 2019, p. 1,313). Overall, Rodenticides impair an animal’s ability primary causes for fisher declines across it appears fishers can tolerate to produce several key blood-clotting the United States. Many fisher management activities that promote factors (anticoagulant rodenticides) or researchers have suggested that the forest heterogeneity (variation) and that affect brain and liver function

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(neurotoxicant rodenticides). females remain particularly tied to their By 2010, 79 percent of all the marijuana Anticoagulant rodenticide exposure territories (Arthur et al. 1993, p. 872), consumed in the United States came causes bleeding from the nose and they are among the species that are more from California (Brady 2013, pp. 70–71). gums, extensive bruises, anemia, vulnerable to rodenticide exposure. Information on the amount and types fatigue, difficulty breathing, and also Additionally, fisher diets consist of rodenticides have been collected at damage to small blood vessels, resulting primarily of small mammals (Golightly more than 300 illegal grow sites in in spontaneous and widespread et al. 2006, entire), which are the target California from 2012 through 2018 hemorrhaging. species for rodenticides (Gabriel et al. (Gabriel and Wengert 2019, unpublished A sublethal dose of a rodenticide can 2015, entire; Thompson et al. 2014, pp. data, pp. 5–7). Through this time period produce significant clotting 97–98). Top predators within the range the use of second-generation abnormalities and hemorrhaging, of fishers, including northern spotted rodenticides decreased. This is likely leading to a range of symptoms, such as owls (Strix occidentalis caurina) and because of regulation changes in 2014 difficulty moving and a decreased barred owls (S. varia), have also been that placed additional restrictions on ability to recover from physical injury. exposed to rodenticides (Franklin et al. the use of second-generation Ingestion of the neurotoxicant 2018, p. 1; Gabriel et al. 2018, p. 1). rodenticides in California (California bromethalin, which has been detected Data available since completion of the Department of Pesticide Regulation in DPS fisher carcasses, has fast-acting final Species Report in 2016 continue to 2014). The change in policy has led to and physical effects such as document exposure and mortalities to a more intensive use of first-generation unsteadiness and weakness, and at fishers from rodenticides in both the anticoagulant rodenticide and the higher dosage levels, seizures. Both NCSO and SSN DPSs (Gabriel and highest amount of neurotoxicant anticoagulant and neurotoxicant Wengert 2019, unpublished data, entire; rodenticide use since 2012 (Gabriel and rodenticides can change or impede Powell et al. 2019, p. 16). Here we Wengert 2019, unpublished data, pp. 5– normal fisher movement and foraging discuss data specific to both the NCSO 7). behaviors and therefore may increase and SSN DPS; more DPS-specific In order to evaluate the risk to fishers the probability of mortality from other information is found in the NCSO DPS from illegal grow sites and any sources such as predation or vehicle and SSN DPS discussions below. Fisher differences between populations, we use collision. In addition, anticoagulants carcasses have been collected and tested a Maximum Entropy model to identify bioaccumulate and become increasingly for their cause of death and their high and moderate likelihood of illegal prevalent in predators; as they continue exposure to rodenticides (Gabriel and grow sites being located within habitat to eat contaminated prey, they Wengert 2019, unpublished data). Data selected by fisher in California and accumulate more and more for 97 fisher carcasses collected in Oregon (Gabriel and Wengert 2019, anticoagulant (Lopez-Perea and Mateo California in the period 2007–2014 unpublished data, pp. 7–10). This 2018, p. 165). Contaminated rodents are indicate 81 percent of fishers tested model indicates that 44 percent of the found within and adjacent to treated positive for one or more rodenticides, habitat modeled (combined NCSO and areas weeks or months after bait and 48 fishers collected from 2015–2018 application (Geduhn et al. 2014, pp. 8– indicate 83 percent tested positive SSN DPSs) for fishers is within areas of 9; Tosh et al. 2012, pp. 5–6; Sage et al. (Gabriel and Wengert 2019, unpublished high and moderate likelihood for illegal 2008, p. 215). data). Using data from both the SSN and grow sites—see also the individual DPS Rodenticide use in agricultural or the NCSO DPS and comparing the sections below. However, the extent to urban areas is common and wildlife periods 2007–2011 and 2012–2014, which the use of toxicants occurs on exposure rates can be high. For mortalities due to rodenticide toxicosis marijuana grow sites on private land, as example, in California 70 percent of increased from 5.6 to 18.7 percent well as other agricultural, commercial, tested mammals were positive for at (Gabriel and Wengert 2019, unpublished and public land sites within the range least one anticoagulant rodenticide data, p. 2). And, from 2015 to 2018, of the fisher (and habitats that fishers (Hosea 2000, p. 238). And across the additional fisher mortalities due to both select for), is unknown. world, 58 percent of tested predators anticoagulant and neurotoxicant Illegal grow sites are regularly were positive for anti-coagulant rodenticides have been documented, discovered in California (617 from 2012 rodenticides (Lopez-Perea and Mateo including the toxicosis of neonatal kits through 2018, and 2,039 from 2004 2018, p. 172). Not surprisingly, in the womb (Gabriel and Wengert 2019, through 2018) (Gabriel and Wengert mammals are most impacted by unpublished data, p. 4). The probability 2019, unpublished data, p. 7). Law- rodenticides, when compared to birds, of fisher mortality increases with the enforcement specialists estimate they reptiles, and insects; and generalist number of anticoagulant rodenticides a locate and raid roughly 20 to 40 percent species that eat a variety of prey species fisher has been exposed to, and most of sites each year and only about 10 are more likely to be contaminated fishers are exposed to more than one percent of those are remediated relative to specialist species that feed on (Gabriel et al. 2015, p. 15). (Thompson et al. 2017, p. 45). If these one or a few species (Lopez-Perea and The primary source of rodenticide estimates are accurate, it is reasonable to Mateo 2018, pp. 163, 173). exposure to fishers is from illegal conclude that thousands of illegal grow Predators that are (a) nocturnal, (b) marijuana grow sites on public, private, sites—known and unknown, and with opportunistic in feeding habitats where and tribal lands in California and an undetermined amount of toxicants rodents are an important part of their Oregon (Gabriel et al. 2015, pp. 14–15; present—remain scattered within both diet, and (c) nonmigratory and live close Thompson et al. 2014, pp. 97–98). In the the NCSO DPS and SSN DPS (Gabriel et to or within landscapes that are heavily mid- to late 1970s, 90 percent of the al. 2015, entire; Thompson et al. 2017, impacted by human activities are more marijuana consumed in the United p. 45). Rodenticides persist in the likely to be exposed to rodenticides and States came from abroad (Brady 2013, landscape, with first-generation have relatively high liver-residue pp. 70–71). Marijuana cultivation in rodenticides having a half-life of up to concentrations of multiple rodenticide California really began in 1974 or 1975, 16 days and second-generation compounds (Hindmarch and Elliott and by 1979, 35 percent of the rodenticides having a half-life up to 307 2018, p. 251). Because fishers are marijuana consumed in California was days (Shore and Coeurdassier 2018, p. territorial, nonmigratory mammals, and from California (Brady 2013, pp. 70–71). 146).

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As discussed, both the draft and final are getting larger (impacting more fisher that updates the 2016 Act (MAUCRSA Species Reports detail the exposure of home ranges) (Gabriel 2018, pers. 2017, entire). fishers to rodenticides (Service 2014, comm.). And, law-enforcement actions In 2017, CDFW used their Regulation pp. 149–166; Service 2016, pp. 141– have caused illegal grow sites to and Forest Restoration funds for their 159). Below we summarize new disperse further, which makes them newly formed Cannabis Restoration information: more difficult to locate (Gabriel 2018, Grant Program (CDFW 2017a, p. 3). The (1) Rodent diversity—Illegal grow pers. comm.). Other uncertainties make program funded the restoration of sites that were treated with rodenticides it difficult to reach conclusions about watersheds impacted by marijuana contained only mice, as compared to trends in the abundance and frequency cultivation, including removing trash untreated sites where rodenticides were of illegal grow sites this soon after and equipment, diversion removal, not used and where large-bodied legalization, including legal marijuana riparian enhancements, and streambank rodents (e.g., woodrats, squirrels, market forces, the clandestine nature of stabilization (CDFW 2017b, p. 1). Funds chipmunks) were found. The absence of the black market, Federal illegality and for projects in 2017 totaled $1,300,000 larger rodents at treated sites suggests trends of legalization in other States, (CDFW 2017a, p. 1). Monies from this that larger-bodied rodents may be State taxation of marijuana, local program went to fund four efforts for impacted by rodenticides more than employment and economic conditions, watersheds within the range of the smaller bodied rodents. These large- and regulatory and law enforcement NCSO DPS (CDFW 2017a, p. 2). The bodied rodents are the prey species responses (Hughes 2017, entire; Bureau largest and widest-ranging of these fishers prefer (Gabriel et al. 2017, p. 10). of Cannabis Control California 2018, pp. efforts included the removal and Further, illegal grow sites may act as 28, 30; Sabet 2018, pp. 94–95; Fuller remediation of rodenticides at illegal ‘‘sinks’’ for prey moving in from 2019, no page number; Klassen and grow sites. Monies were not made neighboring areas meaning less prey is Anthony 2019, pp. 45–46; Prestemon et available in 2018 or 2019, but it is our available for fisher (Gabriel 2018, pers. al. 2019, pp. 9–11). understanding there are plans to add comm.). Legalization has resulted in an monies to this grant program in the (2) Law Enforcement Activities— increase in legal marijuana cultivation. future. During the ‘‘Operation Forest Watch, At this time, we have limited data about The CROP Project (Cannabis Removal Department of Justice’’ campaign in the prevalence of rodenticide use on on Public Lands) is a citizen-based California between October 2017 and legal private grow sites and whether organization established in 2018 with September 2018, more than 20,000 fishers are at risk from rodenticide use the primary goals of: (1) Securing and pounds of fertilizer, pesticides, and on private land. In urban-wildland increasing State and Federal resources chemicals were removed from 160 interfaces, or where private lands abut for illegal-grow-site reclamation; (2) illegal grow sites (Department of Justice public forestland or occur as inholdings, increasing U.S. Department of (DOJ) 2018, p. 2). Of these, 89 percent legal grow sites are more likely within Agriculture (USDA) USFS law were confirmed or strongly suspected to fisher home ranges (e.g., Franklin et al. enforcement and overall presence on have carbofuran or methamidophos (i.e., 2018, p. 3). National Forests; and (3) implementing insecticides (non-rodenticides) that (4) Reclamation Efforts—Existing law a Statewide public education campaign, cause central nervous system enforcement cannot keep up with illegal focusing on the human health risks dysfunction), up from the previous marijuana activities (Bureau of Cannabis associated with ingesting unregulated year’s total of 75 percent (DOJ 2018, p. Control California 2018, p. 30; Wendt marijuana (www.cropproject.org). 2). Estimates vary of the number of 2019, pp. 4–6). In addition, support Successful accomplishment of these illegal grow sites that necessitate from States and local governments to goals could substantially improve the reclamation of toxicants, but as of 2018, Federal law enforcement on public discovery and reclamation of illegal 766 known illegal grow sites are still in lands (e.g., U.S. Forest Service (USFS)) grow sites, but it is too early to need of reclamation (DOJ 2018, p. 2). has dwindled as they redirect resources determine the degree to which this (3) Effect of legalization—Since the to regulate the legalized marijuana program reduces the threat of toxicants 2014 Proposed Rule, recreational industry (Bureau of Cannabis Control to fishers. marijuana cultivation and use became California 2018, p. 30; Klassen and Please also see Existing Regulatory legal in Oregon (2015) and California Anthony 2019, p. 45). Mechanisms in both the NCSO and the (2016). The data are mixed with respect The California Comprehensive SSN DPS discussions below for more to how legalization is affecting illegal Medical Cannabis Regulation and Safety information on voluntary conservation grows sites on public lands. Some Act of 2016 specifies that, after control efforts that address illegal grow sites. studies find that illegal grow sites on and regulation of the program, 20 At this time, our evaluation of the best National Forests have decreased in percent of the marijuana tax fund available scientific and commercial States where marijuana was legalized (established by this Act) shall be given information regarding toxicants and (Klassen and Anthony 2019, p. 39; to California Department of Fish and their effects on fishers leads us to Prestemon et al. 2019, p. 1). Conversely, Wildlife (CDFW) for (1) cleanup, conclude that individual fishers within many law-enforcement officials have remediation, and restoration of both DPSs have died from toxicant found no indication that illegal grow environmental damage in watersheds exposure, fishers suffer a variety of sites have decreased with cannabis affected by marijuana cultivation (a sublethal effects from exposure to legalization, and may in fact be portion of which may be distributed rodenticides, and the potential for increasing, in part due to legalization through grants); and (2) the stewardship illegal grow sites within fisher habitat is providing an effective means to launder and operation of State-owned wildlife high. The exposure rate of more than 80 illegal marijuana (Hughes 2017, entire; habitat areas and State park units to percent of fisher carcasses tested in Bureau of Cannabis Control California prevent illegal cultivation, and use California has not declined between 2018, pp. 28, 30; Sabet 2018, pp. 94–95; (Comprehensive Medical Cannabis 2007 and 2018 (Gabriel and Wengert Fuller 2019, no page number; Klassen Regulation and Safety Act 2016, pp. 43– 2019, unpublished data, pp. 3–4), while and Anthony 2019, p. 45). Data from 44). This language is not included in the poisoning has increased since 2007 fisher monitoring suggests that illegal 2017 Medicinal and Adult-Use Cannabis (Gabriel et al. 2015, p. 7). We do not grow sites are dropping in number but Regulation and Safety Act (MAUCRSA) know the exposure rate of live fishers to

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toxicants since this information is range within the West Coast States. The a minor impact where it has been difficult to gather and has not been best available information suggests these studied in the SSN DPS (Spencer et al. collected. In addition, the minimum populations are expected to remain 2015, p. 66), and it comprises a amount of anticoagulant and isolated from one another (as has been substantially smaller portion of fisher neurotoxicant rodenticides required for apparent since pre-European mortalities compared to predation. sublethal or lethal poisoning is settlement). Estimates of fisher We do not know if current predation unknown. Specific information on population growth rates for the NCSO rates are similar to historical rates in the fishers and toxicants within the NCSO DPS and the portion of the SSN DPS area of the NCSO DPS and SSN DPS. DPS and the SSN DPS is described in surveyed do not indicate any overall Comparing predation rates to the DPS-specific sections below. positive or negative trend (see Current populations outside of the West Coast is Condition section for the NCSO DPS not informative because most of those Potential for Effects Associated With below), with the exception of the populations are trapped, skewing the Small Population Size recently reintroduced subpopulation in mortality source results (e.g., Lofroth et Small populations are vulnerable to a the NSN, which has steadily grown al. 2010, p. 62, Table 6.3). Recent rapid decline in their numbers and since its translocation beginning in research in California suggests that localized extinction due to the 2009. The vulnerabilities related to landscape changes as a result of following: (1) Loss of genetic variability small population size for each DPS are disturbances over the past century may (e.g., inbreeding depression, loss of further described below. have altered the carnivore community evolutionary flexibility), (2) fluctuations and affected predation rates on fishers in demographic parameters (e.g., birth Disease and Predation by bobcats (Wengert 2013, pp. 59–66, and death rates, population growth We evaluated information on disease 93, 97–100) where an increased rates, population density), and (3) and predation in our 2016 Species proximity to open and brushy areas environmental stochasticity or random Report (Service 2016, pp. 128–132). In (vegetation selected for by bobcats) fluctuations in the biological (e.g., addition, we evaluated the following increases the risk of predation on predation, competition, disease) and new information available regarding fishers. Mountain lions and bobcats are physical environment (e.g., wildfire, disease or predation since the time of major predators of fishers. Of 90 fishers drought events, flooding) (Primack our 2014 Proposed Rule (e.g., Gabriel et that died from predation or were killed 2014, pp. 252–268). We note that forest al. 2015, pp. 5–8, 12–16; Sweitzer et al. by other animals, 90 percent were killed carnivore populations, including fisher, 2016a, pp. 444–448; Integral Ecology by members of the cat family (Felidae) are often isolated and generally occur in Research Center 2017, p. 2; Barry 2018, (Gabriel et al. 2015, p. 5). Sublethal low densities (Service 2016, p. 29). pp. 39–40; Green et al. 2018a, p. 549; effects of toxicants may also result in While we do not have data across the Purcell et al. 2018, pp. 39–40, 50–51, 53, higher than normal mortality rates entire fisher range on the West Coast 72; CDFW 2019, entire). Although we associated with disease and predation, demonstrating that fishers are exhibiting did not identify this threat in the 2019 but we do not know what portion of specific effects associated with small Revised Proposed Rule as one that may identified mortalities would not have population size, consideration of these have been a potentially significant occurred but for the presence of three elements along with life-history driver of future status, we are sublethal levels of toxicants in the traits can provide an extinction- considering this new information in this individual (Gabriel et al. 2015, p. 16; vulnerability profile for both the NCSO Final Rule in light of our DPS Sweitzer et al. 2016a, p. 448). DPS and SSN DPS. Fishers in Oregon determination that has resulted in two Disease and predation are naturally and California are currently restricted to separate DPSs; the magnitude and scale occurring sources of mortality, although two historically extant indigenous of the effect disease or predation may the associated mortality rates may be populations (NCSO and SSN), one have on each DPS may differ as a result increased by human-caused factors such extant reintroduced subpopulation of the DPS-specific demographics and as vegetation management or toxicants (NSN, established with fishers from distribution. Predation and disease are (Gabriel et al. 2015, pp. 14, 16). NCSO), and one subpopulation the two greatest sources of mortality for Predation has been identified as the established with fishers from outside fishers of identified mortality sources most important factor limiting fisher this region (SOC). We recognize the two studied in California (Gabriel et al. populations in California (Sweitzer et al. geographic areas of fisher, SSN and 2015, p. 6; Sweitzer et al. 2016a, p. 447). 2016a, p. 448). High levels of predation NCSO (the latter of which includes the Of 183 California fishers where the may explain why fisher populations SOC and NSN for this analysis), are mortality source was identified, 67 have not expanded into unoccupied geographically isolated from one percent died from predation and 13 suitable habitat throughout much of the another with no evidence of and very percent from a combination of disease, NCSO and SSN DPSs (Gabriel et al. little opportunity for genetic injury, or starvation (Sweitzer et al. 2015, p. 16). However, the reintroduced interchange. Our evaluation of the best 2016a, p. 447). Gabriel et al. (2015, p. 7) NSN subpopulation appears to be scientific and commercial information was able to separate disease from other growing despite mortalities due to available indicates that the separation of mortality sources and found that 15 predation, indicating that other factors the SSN and NCSO populations percent of 136 necropsied fishers died such as fisher dispersal distance occurred a very long time ago, possibly of disease. through unsuitable habitat may also on the order of more than a thousand Several viral and bacterial diseases limit fisher expansion (Powell and years, pre-European settlement (Tucker are known to affect mustelids, including Zielinski 1994, pp. 60–61; Aubry and et al. 2012, pp. 1, 7; Knaus et al. 2011, fishers. Known diseases that have Lewis 2003, p. 88) and that p. 11). Despite their isolation and the caused fisher mortality in the area of the reintroductions can play an important small size of the SSN DPS, the native NCSO and SSN DPSs include canine role in recovery for the species (Green NCSO DPS and SSN DPS have persisted distemper virus, Toxoplasma gondii (a et al. 2020, p. 13). over a long period of time. protozoal infection), and several At this point in time, fishers in both bacterial infections (Gabriel et al. 2015, Vehicle Collisions the NCSO DPS and SSN DPS are pp. 7–8; see Service 2016, pp. 128–130 Fisher collisions with vehicles have reduced from their original/historical for diseases summary). Disease only has been documented at multiple locations

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within the NCSO DPS and SSN DPS. We Existing Regulatory Mechanisms Finally, voluntary conservation summarize this information in the final Many Federal and State existing measures are in place that provide a fisher Species Report (Service 2016, pp. regulatory mechanisms provide a benefit to fishers and their habitat. 137–138). Although we did not analyze benefit to fishers and their habitat. For These measures include Habitat this threat in the 2019 Revised Proposed example, trapping restrictions have Conservation Plans (HCPs), Candidate Rule, this information warrants substantially reduced fisher mortality Conservation Agreements with consideration in this Final Rule, throughout the NCSO DPS and SSN DPS Assurances (CCAAs), Safe Harbor particularly because we expect this of fisher. In some places, forest- Agreements (SHAs), Memoranda of threat to act differently in each of the management practices are explicitly Understanding (MOUs), and other newly-identified NCSO DPS and SSN applied to benefit fishers or other conservation strategies, as described for DPS based on population size and species with many similar habitat each DPS below (see NCSO and SSN proximity to human development. In requirements, such as the northern DPS specific sections on Voluntary general, fisher collisions with vehicles spotted owl. State and Federal Conservation Measures below). documented in California are relatively regulatory mechanisms have abated the Final Listing Determination for NCSO rare, representing less than 2 percent of large-scale loss of fishers to trapping DPS of Fisher documented mortalities (Gabriel et al. and minimized the loss of fisher habitat, especially on Federal land (Service 2015, p. 15). And, vehicle-related Current Condition 2014, pp. 117–141). Additionally, mortalities may be a more local concern rodenticides are regulated under Federal associated with specific high-traffic The NCSO DPS comprises a mix of and State laws. However, fishers are still ownerships, with similar amounts of areas (Gabriel et al. 2015, pp. 7 and 15, exposed to rodenticides where they are Table 2). private and Federal ownership (Table used (see NCSO and SSN DPS specific 1). The USFS is the predominant sections on Exposure to Toxicants and Federal land manager within the DPS. Existing Regulatory Mechanisms).

TABLE 1—LAND OWNERSHIP OR MANAGEMENT FOR THE NORTHERN CALIFORNIA/SOUTHERN OREGON DISTINCT POPULATION SEGMENT OF FISHER

California (CA) Oregon (OR) NCSO total Agency Acres Percent (%) (ac) for CA ac % for OR ac %

Bureau of Land Management ...... 864,221 4.0 945,910 17.8 1,810,130 6.8 Forest Service ...... 8,433,567 39.5 2,332,813 43.8 10,766,380 40.4 Bureau of Indian Affairs ...... 211,998 1.0 72 0.0 212,070 0.8 National Park Service ...... 353,235 1.7 186,934 3.5 540,170 2.0 State and Local ...... 473,997 2.2 20,637 0.4 494,635 1.9 Private ...... 10,951,353 51.3 1,824,961 34.3 12,776,315 47.9

Total Acres * ...... 21,346,412 100.0 5,327,797 100.0 26,674,209 100.0 * Acres and % may not sum due to rounding and because some other owners with less land are not included.

Population condition and abundance Sierra Pacific Industries (SPI) Stirling 2014–2017, entire; Moriarity et al. 2017, information for the NCSO DPS is Management Unit in Butte, Plumas, and entire; Barry 2018, pp. 6, 22–24; presented for three different geographic Tehama Counties, California (Powell et Moriarty et al. 2019, p. 23). portions of this DPS. First, the SOC al. 2019, p. 2). Third, the remainder of Prior to 2015, survey work in the portion west and south of Crater Lake in the native fishers in the NCSO DPS Oregon Cascades north of the NCSO the Southern Oregon Cascade Range is occupy the Klamath-Siskiyou DPS was limited to opportunistic or predominantly represented by Mountains in southern Oregon and small-scale efforts. Verifiable fisher reintroduced individuals from British northern California, the California Coast detections did not exist, except for two Columbia and Minnesota. However, Range Mountains, the Shasta-Trinity single fishers: One just north of the SOC recent analyses have documented that at subregions in northern California, and subpopulation in 2014 (Wolfer 2014, pers. comm.) and a single dispersing least some of these reintroduced SOC the western portion of the southern juvenile male detected in the same individuals and native NCSO Cascades in northern California. Fishers in the SOC portion of the general area in the 1990s (Aubry and individuals are overlapping in range, NCSO DPS stem from a translocation of Raley 2006, p. 5); this finding suggests with confirmed interbreeding (Pilgrim 30 fishers from British Columbia and occasional individuals may disperse and Schwartz 2016, entire; Pilgrim and Minnesota to the southeastern Cascade north through the central Oregon Schwartz 2017, entire). Second, the Range and west of Crater Lake between Cascades. Over the winter of 2015–2016, NSN portion is represented by native, 1977 and 1981, after an earlier systematic camera surveys occurred in reintroduced fishers whose genetic reintroduction in 1961 failed (Aubry the northern Oregon Cascades stock is from fishers relocated from the and Lewis 2003, p. 84; Lofroth et al. (specifically, the southern portion of the Klamath-Siskiyou and Shasta-Trinity 2010, pp. 43–44). Based on survey and Mt. Hood National Forest and northern subregions (in the historically native research efforts starting in 1995, genetic portion of the Willamette National NCSO DPS). These animals were evidence shows these fishers continue Forest). No fishers were detected relocated into the northern Sierra to persist (Drew et al. 2003, p. 57; Aubry (Moriarty et al. 2016, entire), suggesting Nevada. This geographic portion of the et al. 2004, pp. 211–215; Wisely et al. fishers may not reach this far north in NCSO DPS occurs on land known as the 2004, p. 646; Pilgrim and Schwartz the Oregon Cascades. Additionally,

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surveys over the past 3 years have not range map certainly included areas with Older estimates for the NCSO DPS detected fishers north of the Rogue limited numbers or lack of fishers; (minus SOC and NSN) using various River in the central Oregon Cascades consequently, a 67 percent range methodologies range from a low of 258– (Barry 2018, pp. 22–23) (see below). reduction using that map as a baseline 2,850 individuals, based on genetic data Information is not available on comparison overestimates any change in (Tucker et al. 2012, pp. 7, 9–10), to a population size for the SOC portion of fisher distribution in the SOC high of 4,018 individuals based on the NCSO DPS. In the northern portion subpopulation to some extent. We do extrapolation of data from two small of the SOC area, fishers were detected concur, however, that SOC fishers seem study areas within the NCSO DPS to the in the northern and eastern portions of to have shifted their distribution, and entire NCSO DPS (Self et al. 2008, pp. Crater Lake National Park between 2013 acknowledge that their distribution may 3–5). In 2017, a new estimate was and 2015 (Mohren 2016, pers. comm.). be contracting to some degree. Further, developed for the NCSO DPS that Outside of the Park, large-scale we acknowledge Barry’s (2018, pp. 22– includes southern Oregon and coastal systematic surveys were conducted in 24) assertion that the SOC California but still excludes SOC and 2016 and 2017 north and west of Crater subpopulation has had ample time since NSN (Furnas et al. 2017, pp. 2–3). This Lake National Park and south to the their reintroduction to colonize beyond study used detection/non-detection Klamath Falls Resource Area (south of the reintroduction area and has failed to survey data from across much of the the reintroduction area) of the Bureau of do so, suggesting that either our NCSO DPS to calculate an average Land Management (BLM) Lakeview understanding of suitable habitat may density of 6.6 fishers per 39 mi2 (100 District (Barry 2018, entire). Few fishers be incorrect, there may be unknown km2) across the area they defined for the were detected in an area west of Crater barriers limiting their distribution, or NCSO DPS (Furnas et al. 2017, pp. 12– Lake National Park where fishers were other factors may limit this 15). Using this estimate of fisher captured and radio-collared in the early subpopulation. density, the NCSO DPS is estimated to 1990s by Aubry and Raley (2002, Barry (2018, p. 23) also concluded be 3,196 individuals (2,507–4,184; 95 entire). Within the Klamath Plateau that the SOC subpopulation appears percent Confidence Interval (C.I.)) and (generally the Klamath Falls Resource small and relatively isolated given the fishers were detected at 41 percent of Area described above, but including number and spacing of detections. 321 paired camera stations (Furnas et al. surrounding non-Federal lands), However, there is interbreeding with 2017, pp. 10, 12). Density models Moriarty et al. (2019, pp. 5, 21) indigenous fishers near the Klamath indicate a core area of predicted high identified 31 to 41 individuals from Plateau area, suggesting fishers in the density (greater than 10 fishers per 39 2015 to 2018, concluding that fishers in 2 2 southern part of the SOC subpopulation mi (100 km ) from between about 25 to the SOC area do not appear to be are not isolated. 50 mi (40 to 80 km) inland from the expanding from where they were coast in the California Coast Range and Fishers in the NSN portion of the initially reintroduced. southern Klamath Mountains in NCSO DPS stem from a 2009 to 2011 In comparing this range estimate with California (Furnas et al. 2017, pp. 12– translocation of 40 fishers (24 females, a coarse baseline range estimate 13). CDFW determined in their status 16 males) from Humboldt, Siskiyou, and provided by the Service, Barry (2018, assessment for fishers in California that pp. 22–24) determined that there was a Trinity Counties, California, to the SPI the assessment done by Furnas, when 67 percent range reduction for the SOC Stirling Management Unit. Ongoing applied to fishers in the California subpopulation, concluding that SOC monitoring has confirmed that fishers portion of NCSO, suggests that fishers fishers ‘‘appear to have contracted, born onsite have established home are common and widespread (estimated shifted south, or the previous ranges and have successfully to occur at 60 percent of sample units population extent was incorrectly reproduced. Trapping efforts in the fall in California) (CDFW 2015, p. 55). estimated’’ (Barry 2018, pp. 22–24). of 2017 as part of ongoing monitoring of The indigenous population of fishers Given the lack of systematic range-wide the reintroduced subpopulation indicate in Oregon was estimated to have a 26 fisher monitoring in Oregon, the author, a minimum of 61 fishers (38 females, 23 percent range reduction compared to however, urged caution when males), which is 21 more than were verifiable fisher records collected since comparing his analysis with the originally introduced (Powell et al. 1993 (Barry 2018, p. 22). However, the baseline range estimate provided by the 2019, p. 2). Overall, 220 individual author notes this comparison should be Service, and we agree. Our baseline fishers were identified between 2009 treated with caution, and we agree. This range estimate used by Barry (2018, p. and 2017 with a young age structure, estimate is subject to the same 31, Figure 3) was derived by suggesting healthy reproduction and limitations as described earlier in this encompassing verifiable fisher locations recruitment (Powell et al. 2019, p. 2). section for the SOC fisher since 1993 in southwest Oregon. Our Although the subpopulation appears to subpopulation. That is, the coarse range boundaries were based on modeled be stable or growing, statistical map the author used for a baseline fisher habitat and readily identifiable conclusions will be difficult to draw comparison included areas with limited features such the Rogue River. These until year 10 in 2020 (Powell et al. 2019, numbers or even lack of fishers, so a 26 range maps included scattered, disjunct p. 2). The authors also concluded that percent range reduction overestimates detections with intervening areas of few the subpopulation is unlikely to go any change in the indigenous fisher to no fisher detections (e.g., see Service extinct in the next 20 years, barring population in Oregon. 2016, p. 34, Figure 7); consequently, our dramatic decreases in survival and Trend information for fishers within range map likely encompassed areas reproduction caused by stochastic the NCSO DPS is based on the following with limited fisher occurrence. Hence, events. We also recently received a draft two long-term study areas. As indicated comparing our coarse range map with manuscript concluding that estimated above, we now consider the NCSO DPS Barry’s fisher distribution, which was recruitment and survival probability of to include the areas previously quantitatively modeled from systematic fishers in the NSN subpopulation ‘‘had represented as the SOC and NSN detection surveys to delineate areas stabilized and were quite high, reintroduced fisher subpopulations. with a higher probability of fisher indicating that this new population of The Hoopa study area is occurrence, should indeed be fishers may be self-sustaining’’ (Green et approximately 145 mi2 (370 km2) on the interpreted with caution. Our coarse al. 2020, p. 11). Hoopa Valley Indian Reservation north

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of California State Highway 299 and After fires in this study area in 2014, EKSA population trend over the past near State Route 96, which is largely the estimated number of fishers few years. surrounded by the Six Rivers National declined by 40 percent from the year In the absence of limiting factors, Forest and other private lands. The before the fire (Green et al. 2019b, p. 8). populations tend to steadily increase study area represents the more mesic Prior to the fire, this population varied (lambda >1) until the population growth portion (containing a moderate amount in the annual number of fishers and becomes restricted. Within the NCSO of moisture) of the NCSO DPS. Fisher lambda trends (increasing and DPS, this situation has been occurring studies have been ongoing since 1996. decreasing) (Green et al. 2016, p. 15, in the NSN reintroduced population as The population trend in the period Table 1) (Table 2), indicating ‘‘the it expands to fill available habitat 2005–2012 indicates declining population of fishers in the Klamath (Powell et al. 2019, pp. 2, 4). Healthy populations with lambda of 0.992 (C.I. was relatively stable before the fires populations will then naturally 0.883–1.100), with a higher lambda rate fluctuate around their upper limit, or for females 1.038 (0.881–1.196) than occurred and for the three years males 0.912 (0.777–1.047) (Higley et al. immediately following the removal of carrying capacity, increasing in some 2014, p. 102, Higley 2015, pers. comm.). fishers for translocations’’ (Green et al. years and decreasing in other years The authors concluded that ‘‘the 2016, p. 8). Modeling results suggest the (Figure 2). This trend is exhibited in the population as a whole is essentially post-fire decline was because of the fire. data from the EKSA, where annual stable’’ (Higley et al. 2014, p. 31), but Although the fire notably affected estimates of abundance for fishers have they raised concerns about declines in fishers in this population in the 2 years varied, yielding increasing and survival of males over the last 3 years immediately following, the fate of the decreasing growth rates from year to of the study; they believed the decline fishers affected by the fire is unknown; year prior to the 2014 fires (Table 2). was associated with toxicant poisoning it is possible that some fishers may have This occurrence is consistent with associated with illegal marijuana emigrated out of the burned areas normal variation for populations that growing and that males were at a higher (Green et al. 2017, pp. 9–10) or may are neither growing nor declining, but risk because of their larger home ranges reoccupy areas that burned at lower fluctuating near carrying capacity. For compared to females (Higley et al. 2014, severities in the future. Credible both the Hoopa and the EKSA studies, the authors’ use of the term ‘‘stable’’ pp. 32, 38). intervals (a statistical measure of (Higley et al. 2014, p. 31; Green et al. The Eastern Klamath Study Area uncertainty) surrounding abundance 2 2016, p. 8) implies that the lambda rates (EKSA) is approximately 200 mi (510 estimates of fishers both pre- and post- km2) in size straddling the California/ are not swinging dramatically from year fire overlap; although the post-fire Oregon border. This study area to year, but rather annual abundance represents the more xeric portion estimate is at the lower range of the pre- estimates are fluctuating around a (containing little moisture; very dry) of fire estimate, the fisher population steady value consistent with normal the NCSO DPS. Monitoring has occurred estimate post-fire does not appear to be population variation. There are still since 2006 (Green et al. 2018b, entire). substantially different from the lowest uncertainties regarding the post-fire Fishers in this study area were a source estimates in the pre-fire years (Green et declines from the EKSA study area for translocating fishers to the NSN al. 2019b, p. 18; Matthews and Green (addressed below in Wildfire and reintroduction site elsewhere in the 2020, pers. comm.). Hence, even with Wildfire Suppression section) as well as DPS. The removal of nine fishers over the immediate decline in the local fisher the reduced male survival rates in the a 2-year period in 2009 and 2010 population after the fire, the latest Hoopa study area. However, the best (equivalent to 20 percent of the population estimate still appears to be available data suggests that populations population) did not affect fisher within the statistical range of variation are exhibiting variability that may be abundance or density in the study area of pre-fire estimates. Data since 2016 consistent with populations at or near (Green et al. 2017, p. 9). have not yet been analyzed to assess the carrying capacity.

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TABLE 2—DERIVED POSTERIOR PARAMETER ESTIMATES OF ANNUAL POPULATION DENSITY, ABUNDANCE, AND POPU- LATION GROWTH OF FISHERS IN THE KLAMATH. PARAMETERS ARE PRESENTED AS MEDIAN [95% CREDIBLE INTERVAL] (GREEN ET AL. 2016, P. 15) [These estimates have since been reparameterized (Matthews and Green 2020, pers. comm.), indicating a population exhibiting typical fluctuations both increasing and decreasing around K for this time period]

Year Density Abundance Lambda (fishers/100 km2)

2006 ...... 6.64 [4.94, 8.35] ...... 39 [29, 49] ...... 2007 ...... 6.64 [4.94, 8.18] ...... 39 [29, 48] ...... 1 [0.71, 1.35] 2008 ...... 6.99 [5.62, 8.69] ...... 41 [32, 50] ...... 1.06 [0.78, 1.4] 2009 ...... 6.47 [5.11, 8.18] ...... 38 [29, 47] ...... 0.92 [0.67, 1.2] 2010 ...... 5.79 [4.43, 7.33] ...... 34 [26, 43] ...... 0.91 [0.64, 1.21] 2011 ...... 6.47 [5.11, 8.18] ...... 38 [28, 46] ...... 1.09 [0.78, 1.45] 2012 ...... 6.3 [4.94, 8.18] ...... 37 [27, 46] ...... 0.98 [0.72, 1.33] 2013 ...... 6.99 [5.62, 8.69] ...... 41 [32, 50] ...... 1.11 [0.81, 1.49]

Fishers in the NCSO DPS have (CDFW 2015, p. 50). Recent monitoring ‘‘relatively common’’ where the rebounded substantially from their low information submitted during the public indigenous population is found (Barry in the late 1800s and early 1900s. comment period on the 2019 Revised 2018, p. 22). Fishers also appear to be Grinnell et al. (1937, p. 227) suggested Proposed Rule indicates fishers widespread and common throughout no more than 300 fishers occurred in all continue to occur across much of much of the DPS (CDFW 2015, pp. 54– of California. Fishers currently occupy northern coastal California; systematic 55). much of their historical range in camera surveys on private timber lands The major habitat-based threats northwestern California, including the found fishers at 65 of 93 (70 percent) experienced by the NCSO DPS are loss redwood region, which may be an camera stations (Green Diamond of complex canopy forests and den/rest expansion from their historical Resource Company [GDRC] 2019, p. 8) sites and fragmentation of habitat from distribution (CDFW 2015, p. 23); fisher during the 2018–2019 winter, suggesting high-severity wildfire, wildfire detections have increased in northern fishers are well-distributed across the suppression activities (e.g., coastal California since the 1990s, company’s lands. In Oregon, fishers also backburning, fuel breaks, and snag though it is not known as to whether appear to have expanded from low removal), and vegetation management this increase is due to a range numbers in the 1940s, when fishers (e.g., fuels reduction treatments, salvage, expansion, recolonization, increased were considered extremely rare and hazard tree removal). Major non-habitat survey effort, or whether fishers perhaps close to extirpation (see Barry related threats are exposure to toxicants remained undetected in earlier surveys 2018, pp. 16–17 for summary), to being and, in some areas, predation. In

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addition to these threats acting on the population being translocated elsewhere areas of the Biscuit Fire remains NCSO DPS, several conservation efforts between 2009 and 2011.’’ Fisher unknown. are also designed to benefit fishers. numbers in the study area declined 40 Given projected changes in climate, These efforts include those being percent from 2013, the year prior to the forests are expected to become more implemented within the portion of the fires. This decrease became apparent the vulnerable to wildfires over the coming range covered by the Northwest Forest first full year following the fires (2015) century. For example, the proportion of Plan (NWFP) including the conservation and persisted into the following year forests considered highly suitable for and retention of late seral habitats and (Green et al. 2019b, p. 8, Figure 2). wildfire in the Klamath Mountains is a network of reserved land use While the fate of the fishers affected by projected to increase from 18 percent to allocations, which provide fisher the fire is unknown, it is possible that 48–51 percent by the end of the century, habitat. We summarize conservation some fishers may have emigrated out of with most of that increase projected to measures and regulation mechanisms the burned areas (Green et al. 2017, pp. occur on Federal lands (Davis et al. that address some of these threats below 9–10) or may reoccupy areas that 2017, p. 180). Fire return intervals in in the Existing Regulatory Mechanisms burned at lower severities in the future. low- to mid-elevation forests in section. The reduced population estimate Northwest California and the Sierra Nevada Mountains have among the Threats appears to be within the statistical range of variation of pre-fire estimates, as highest departure rates from historical As described above in the General evidenced by overlapping credible fire return intervals in the State (Safford Threats Information section, we intervals. The post-fire population and Van de Water 2014, pp. iii, 17, 22, determined our foreseeable future decline of 40 percent is based on a 36–37). And, fire return intervals in the timeframe for evaluating the status of comparison with the population Coast Range and Klamath Mountains in the NCSO fisher based upon the period estimate from 2013, which was the Oregon are expected to decrease by half, for which we can reasonably determine highest measured population estimate which would result in a near tripling of that both the future threats and the compared to all previous years, with 39 the annual area burned in this century species’ responses to those threats are animals estimated (Green et al. 2017, p. compared to last (Sheehan et al. 2015, likely. In general, we considered that 19; 2019b, pp. 15–18). The post-fire pp. 20–22; Dalton et al. 2017, p. 46). We the trajectories of the threats acting on population estimate was not evaluated note that the projected increases include fisher subpopulations across the DPS’s in context with the overall pre-fire fires of all severity types, so the range could be reliably predicted for 35– population trend and its overall potential wildfire areas do not translate 40 years into the future. variation; such a comparison would directly to an amount of fisher habitat We estimated this timeframe as a likely yield a less dramatic population removed. In the case of low- and result of our evaluation of an array of moderate-severity fires, these may time periods used in modeling. For change. In addition, monitoring data since 2016 is not yet fully evaluated. actually create elements used by fishers. example, climate models for areas with An analysis of fire effects on fisher Both of these tasks are currently fisher habitat, HCPs, and timber harvest habitat was done centering on the underway (Matthews and Green 2020, models generally predict 50 to 100 years Klamath Basin and encompassing the pers. comm.). Fisher densities declined into the future, and forest planning NCSO (CBI 2019b and 2019c, entire). across all wildfire severity types, but documents often predict over shorter The study looked at fisher habitat they declined the most in areas with timeframes (10 to 20 years). We patches large enough to support five or more than a 50 percent loss of tree basal considered 40 years at the time of the more breeding female home ranges (CBI area, consistent with other studies 2014 Proposed Rule, and given the 5- 2019b, p. 16) and labeled them as core year time period since, we are (Green et al. 2019b, pp. 6, 9). The habitat; the study also identified fisher modifying the foreseeable future time authors note that their data represent linkage areas, which were areas on the period to a range of 35–40 years. This only the short-term effects of fires, and landscape identified as least-cost is a timeframe that we can reasonably any negative effects may not persist. We pathways to connect the core habitats determine that both the future threats do not know the fate of individual (CBI 2019b, pp. 3, 16). They found that and the species’ responses to those fishers that left the population after the 24 percent of modeled fisher core areas threats are likely. This time period fire and whether their fitness was and 24 percent of modeled fisher extends only so far as the predictions ultimately compromised. But this linkage areas were considered at risk of into the future are reliable, including a analysis does suggest that high-severity at least temporary loss due to severe balance of the timeframes of various fires can have immediate and fires (CBI 2019c, pp. 22, 25). It is models with the types of threats substantial effects on local fisher important to note that these percentages anticipated during the 35- to 40-year numbers. do not total to 48 percent of the fisher time period. Within the Biscuit Fire area in habitat in the study area; core areas are southwest Oregon, which burned in larger patches of fisher habitat, while Wildfire and Wildfire Suppression 2002, surveys conducted in 2016 and linkage areas may or may not comprise Direct evidence of fisher population 2017 did not detect fishers within the suitable habitat, but instead represent response to wildfire is limited. In a burn perimeter (Barry 2018, pp. 22–23), ‘‘least cost’’ paths between core areas. monitored fisher population in the suggesting the fires have extirpated To update our 2014 analysis of Klamath-Siskiyou area, declines in the fishers from the burn area. However, wildfire effects within the NCSO DPS, overall fisher population occurred after detection records do not suggest fishers we conducted an analysis similar to the wildfires in the study area in 2014 were ever abundant in the area prior to one completed for the 2014 draft (Green et al. 2019b, entire). This the fire (Service 2016, pp. 24, 33, 34, Species Report (Service 2014, pp. 62– population of fishers has been and 35, Figures 4, 6, 7, and 8). We do 64; Service 2019b, unpublished data). monitored since 2006. As noted by acknowledge, however, that a large part Using the fisher habitat map developed Green et al. (2019b, p. 4): ‘‘Previous of this area, is within the Kalmiopsis for the 2014 Proposed Rule (Service research indicates this population of Wilderness Area, where surveys were 2016, Appendix B) and USFS data for fishers had been relatively stable up to likely limited due to restricted access. burn severity for 2008–2018 (USFS 2013, despite approximately 20% of the Therefore, fisher occupancy in some 2019), we estimated the effects of high-

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severity wildfire to fisher habitat (high 2018, pp. 179–180). Consequently, fires within a decade or two after the fire. and intermediate categories) over the tend to be more prevalent on drier sites, The redundancy exhibited by the NCSO past 11 years. We assumed wildfires while less frequent on moister sites, DPS, with multiple subpopulations that burned at high severity (greater which tend to be areas more consistent distributed across a substantial range of than 50 percent basal area loss) changed with fisher habitat. While these patterns habitat (see Resiliency, Redundancy, fisher habitat to a condition that would may or may not continue with the and Representation section), will allow not be selected by fishers for denning effects of climate change, we can use the NCSO DPS of fishers to absorb the and resting (although this result may not management such as the recent fuels impact of fires, demonstrating the DPS’s always be the case, as described above reduction MOUs (see Existing ability to withstand catastrophic events. in the General Species Information Regulatory Mechanisms below) to Climate Change section). Use of greater than 50 percent leverage existing topography and basal area loss is consistent with recent vegetation condition to better manage The general climate change related fire effects analyses on fishers based on for wildfires. effects discussed above (see General the recent results as reported in Green We acknowledge that large-scale Threats Information) apply to the NCSO et al. (2019b, p. 6). Overall, high- and wildfires affect fisher habitat, DPS, in addition to the following effects, intermediate-quality fisher habitat in the particularly given the predicted which are more specific to the NCSO NCSO DPS decreased by 526,424 ac increases in wildfire associated with DPS. In particular, Siskiyou and Trinity (213,036 ha) from 7,050,035 ac climate change by the end of the Counties in interior northern California (2,853,047 ha) to 6,523,610 ac century. We also acknowledge that fires, are projected to see the greatest (2,640,011 ha), or approximately 7.5 even large fires, are part of the natural temperature increases for the North percent was lost as a result of wildfires fire regime within the NCSO DPS, and Coast Region (Grantham 2018, p. 17). In since 2008; this is an average loss of 6.8 fishers have sustained themselves and the Klamath Mountains, models suggest percent per decade. coexisted with wildfire for centuries. precipitation is likely to fall For comparison purposes, in our 2014 Into the future, it will be important to increasingly as rain rather than snow, draft Species Report, we estimated 4 have areas that can maintain becoming mainly rain-dominated by percent of fisher habitat would be lost reproducing fishers while severely mid-century (Dalton et al. 2017, p. 17). over the next 40 years due to high- burned areas can regenerate into fisher Significant or amplified wildfire severity wildfire, or 1 percent per habitat again, whether that is foraging activity, with increased area burned and decade (Service 2014, p. 64). Our 2014 habitat within a decade or two, or severity can result in reduced denning area of analysis for the NCSO denning and roosting habitat several habitat availability for fishers in the subpopulation was based on 27 years of decades beyond. Existing land Coast Range and Klamath Mountains. fire data from 1984 to 2011 and assessed allocations like late-successional These two areas are projected to approximately 24,080,693 ac (9,745,111 reserves from the NWFP on Federal experience wildfire return intervals ha), compared to the 10,459,612 ac lands throughout much of the NCSO decreased by half and thus result in a (4,232,855 ha) assessed in our recent DPS, especially in the areas with the near tripling of the annual area burned analysis above. The results of our new greatest fire severities, will be necessary in this century compared to last analysis are based on fire data from the to manage these areas to return to forest (Sheehan et al. 2015, pp. 20–22; Dalton period 2008 to 2018, an 11-year period habitat with complex structure. This et al. 2017, p. 46). Fire return intervals of the most recent fire activity, which process will ensure suitable habitat lost in low- to mid-elevation forests in suggests our earlier estimates of changes to fires will be managed to develop the Northwest California and the Sierra to fisher habitat from wildfire over the overstory and structural features Nevada Mountains have among the next 40 years may have been an conducive to fishers. In the interim, highest departure rates from historical underestimate. However, while this retaining important structural features fire return intervals in the State (Safford increase in area burned may be in burned areas, per reserve land and Van de Water 2014, pp. iii, 17, 22, consistent with the projections for allocation standards and guidelines, 36–37). wildfire increases in the DPS, the will facilitate the use of these areas by Overall, the best available scientific magnitude of increase in burned fisher prey and foraging fishers within a few and commercial information suggests habitat (i.e., from 1 percent per decade decades following high-severity fires. that changing climate conditions in our 2014 analysis to 6.8 percent in Although fire risk is expected to (particularly warmer and drier our 2019 analysis) may not be a true increase with climate change, it is not conditions) are influencing other threats reflection of the rate of change between expected to be uniform across the DPS, to fishers and their habitat within the the two time periods because of the as described above in this section. The NCSO DPS, in particular the potential different temporal (28 years v. 11 years) sporadic and episodic nature of fires for increased wildfire frequency and and geographic (the area analyzed in will help ameliorate some of the risk to intensity. However, this is not to say 2014 was twice as large as the area fishers across the DPS as a whole. There that the DPS will experience assessed in 2019) scales used in the are effects to local fisher populations widespread or a uniform distribution of comparison. Nevertheless, we recognize immediately after a high-severity fire climate-driven wildfire events. Even the increase in fire activity within the (e.g., Green et al. 2019b, entire). But under conditions for a potential increase NCSO. fishers are well distributed across the in wildfire frequency, wildfires will The geography of the Klamath NCSO DPS, including coastal areas such remain sporadic and episodic across the ecoregion, which makes up much of the as the redwood region that may be less range of the DPS, further moderated by NCSO where fishers occur, is steep and prone to wildfire risk. This distribution the slope and aspect of terrain complex. The variation in elevation and provides redundancy to loss of fishers throughout the range (e.g., influencing aspect shapes vegetation composition after a local fire event. Plus, fishers susceptibility to wildfire, and creating a and distribution. This environment appear to use high severity burned mosaic of fire severity). The DPS’s wide influences fuels and ultimately fire areas, at least for dispersal and foraging variety of topography, vegetation, and behavior and location (Taylor and (Service 2016, p. 66), suggesting that climate conditions in its array of Skinner 1998, p. 297; Taylor and even severely burned areas can continue physiographic provinces (Service 2016, Skinner 2003, p. 714; Skinner et al. to provide some benefits to fishers pp. 15–17, 28–29, 38–39) results in

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unpredictable variability in how these described in detail for the historical, recruitment. In using the OGSI–80 data, provinces will respond to changing three-State range of the DPS in the 2016 we do not expect there to be substantial climate conditions. Please see final Species Report (Service 2016, pp. differences in relative trends for additional discussion about potential 98–111); we summarize it below and disturbances and ingrowth effects on impacts to fishers or their habitat describe how it applies to the NCSO OGSI–80 stands compared to trends in associated with wildfire (Wildfire and DPS. their effects on fisher habitat. Wildfire Suppression above). Within the portion of the NCSO DPS Details of our analysis of Davis et al. overlying the Northwest Forest Plan (2015, entire) are explained in the 2016 Tree Mortality From Drought, Disease, region (generally most of the NCSO DPS final Species Report (Service 2016, pp. and Insect Infestation except for the northern Sierras), we used 101–102). We have since modified that Specific to the NCSO DPS, sudden information from the draft late- analysis to include only data for the oak death (Phytophthora ramorum) has successional and old-growth forest areas (physiographic provinces) that caused some tree mortality in monitoring report (Davis et al. 2015, cover the current range of fishers in the southwestern Oregon and northwestern entire) to assess changes in structural NCSO DPS. The California portion of California, but it is not causing habitat elements associated with fisher the NCSO DPS covers all of the widespread losses of oaks (California habitat (i.e., large trees, down wood, California physiographic provinces Oak Mortality Task Force 2019, p. 1; snags) as a result of vegetation analyzed in Davis et al. (2015, pp. 10, Oregon Department of Forestry (ODF) management. This information included 30–31). The Oregon portion of the 2016, pp. 1–2). This finding suggests use of the ‘‘old growth structure index’’ NCSO DPS occurs mostly within the widespread loss of oaks used by fisher (OGSI), which is an index that consists Oregon Klamath province, but overlaps or fisher prey is not occurring as a result of four structural elements associated somewhat into small portions of the of sudden oak death. Overall, warmer with older forests: (1) The density of western and eastern Cascades provinces and drier climate conditions are large live trees; (2) the density of large (Davis et al. 2015, pp. 10, 30–31). We projected for the NCSO DPS; however, snags; (3) the amount of down wood assessed the results of including and the varied composition of the vegetation cover; and (4) the tree size diversity of excluding the data from these two (e.g., Lofroth et al. 2011, pp. 34–90) in the stand. Over a 20-year period (1993– Cascades provinces. Because no the DPS suggests insect outbreaks and 2012), Davis et al. (2015, pp. 5–6, 16– substantial differences were revealed disease due to drought-related stress on 18) tracked changes in forests classed as between the two data sets, we report trees are more likely to be localized OGSI–80, which represents forests that here the results of including only the should they occur; therefore, future begin to show stand structures Oregon Klamath province data along widespread tree mortality impacts to associated with older forests (e.g., large with data for all of the California fisher habitat are not anticipated in the live trees, snags, down wood, and physiographic provinces that are NCSO DPS. diverse tree sizes). Though OGSI–80 covered by the NWFP. Although loss of OGSI–80 forests due Vegetation Management forests are not a comprehensive representation of fisher habitat, the to timber harvest on non-Federal lands Although local analyses across the condition does track forests that contain (11.1 percent since 1993) was NCSO DPS have assessed fisher habitat structural elements consistently used by substantially greater than on Federal at several scales (see Lofroth et al. 2011, fishers in habitat studies across the DPS, lands (1.0 percent since 1993), in pp. 34–90 for study summaries, and even in areas with substantially open combining all ownerships, the percent Raley et al. 2012, pp. 234–235 for list of areas and managed young stands loss due to timber harvest from 1993 to additional studies), there is no analysis (Lofroth et al. 2010, pp. 81–121; Service 2012 was low (5.0 percent). This available that explicitly tracks changes 2016, pp. 15–21; Niblett et al. 2017, pp. translates to a 2.5 percent loss per in fisher habitat in recent decades across 16–17; Powell et al. 2019, pp. 21–23; decade. However, this may large portions of the DPS, and which Matthews et al. 2019, pp. 1,309, 1,313; underestimate future harvest trends includes fisher habitat ingrowth as well Moriarty et al. 2019, pp. 29–30, 46–49). because timber harvest volume within as habitat loss to specific disturbances. We acknowledge there is some the NWFP area on Federal lands has Therefore, we used other available unknown level of overrepresentation of been on a general upward trend since information, as described below, to stands that may not be occupied by 2000. During the first decade of NWFP analyze the potential effects of this fishers and underrepresentation of implementation, Federal agencies threat on fishers in the NCSO DPS. In stands that fishers may actually occupy offered, on average annually, 54 percent addition to the draft Species Report (Service 2016, p. 102), and we do not of the timber harvest sale goals (Service 2014, pp. 85–96), we used suggest that OGSI–80 is a surrogate for (probable sale quantity or PSQ) several different sources of information fisher habitat proper. Hence, we do not identified in the Plan, whereas volume to depict forest vegetation changes consider it a model of fisher habitat. offered in 2012 was at about 80 percent caused by vegetation management However, OGSI–80 does cover a of the PSQ identified in the NWFP, as activities and offset by ingrowth within majority of the NCSO DPS and provides agencies became more familiar with the range of the NCSO DPS. With the a way to assess regional-scale trends in implementing the NWFP (BLM 2015, p. exception of the non-Federal timber forests that contain the structural 340; Spies et al. 2018, pp. 8–9). In harvest database in California (CAL elements consistently used by fishers addition, BLM has recently revised their FIRE) 2013), all of these sources are (e.g., large snags, down wood, and large management plans in western Oregon either new or updated since 2014 (Davis live trees). This information was the and is no longer operating under the et al. 2015, entire; USFS 2016, entire; only data set available that identified NWFP. Consequently, that agency is Spencer et al. 2016, entire; Spencer et the number of acres lost to timber predicting an increase in timber volume al. 2017, entire; gradient nearest harvest or vegetation management (as above the NWFP sale quantity in the neighbor (GNN) data/maps). With these well as disturbances from fire and first decade of implementation (through available data, we did not need to rely insects) and the number recruited by circa 2025) (BLM 2015, pp. 350–352). on northern spotted owl habitat data as forest ingrowth. This OGSI–80 data set Recent litigation may also increase a surrogate for fisher habitat data in this allows us to track changes as a result of timber harvest on BLM (see Existing evaluation. Our revised methodology is vegetation management and forest Regulatory Mechanisms section). Hence,

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overall harvest trends on Federal lands fisher habitat loss to high-severity Vegetation management is not may be increasing and may be closer to wildfires as well as to incorporate the affecting large areas of the NCSO DPS, or more than rates observed in the last effects from more recent wildfires than though fragmentation could be decade of NWFP implementation (2003 those analyzed by Davis et al. (2015, p. restricting fisher movements in to 2012). 29). localized areas or increasing predation The net loss of OGSI–80 conditions to Outside of the NWFP portion of the risk. For example, fishers continue to timber harvest, however, is somewhat DPS (primarily Sierra Nevada region), persist in actively managed landscapes less because 2.5 percent per decade does while we could track vegetation changes (GDRC 2019, no page numbers), and not include ingrowth of OGSI–80 over time, the available data did not fishers reintroduced into the Sierra stands. Ingrowth represents those stands indicate the amount or types of Nevada portion of the NCSO DPS on SPI that did not meet the OGSI–80 disturbances affecting the specific lands, which are managed for timber structural thresholds at the beginning of vegetation types; that is, we could production, suggest that fisher the 20-year monitoring period but, determine net change in a particular populations can become established and through vegetation succession, reached vegetation type, but could not quantify persist in a landscape where substantial those thresholds at the end of the the amount lost to a specific disturbance portions were historically and are monitoring period. Stands that grow type, unlike in the NWFP area. Timber currently managed for timber into the OGSI–80 condition are assumed harvest records were available for the production (Powell et al. 2019, entire; to offset the loss of other OGSI–80 to Sierra Nevada region, but idiosyncrasies Green et al. 2020, entire). Hence, we disturbance such as vegetation in the FACTS (Forest Service Activity conclude that vegetation management is management. However, we acknowledge Tracking System) database (see Spencer a low-level threat because of the small that OGSI–80 stands exist on a et al. (2016, p. A–30)) and the fact that proportion of area harvested in the continuum, and OGSI–80 stands lost to the available private lands database NCSO DPS and because of the timber harvest or some other (CAL FIRE timber harvest plans) did not widespread distribution of fishers and disturbance are not necessarily indicate types of treatment or what their occurrence in actively managed equivalent in structural quality to stands portion of the plans may have actually landscapes. that recently cross a threshold of being been implemented, led to concerns in classified as OGSI–80. That is, the translating acres of ‘‘treatment’’ as Exposure to Toxicants longer stands remain in the OGSI–80 depicted in these databases into on-the- As described above in the General classification, the more likely they are to ground changes in forest vegetation Threat Information section, rodenticides contain more old-forest structural types that could represent fisher habitat. analyzed as a threat to the NCSO DPS conditions that benefit fishers. Instead, we relied on net vegetation of fishers include first- and second- Ingrowth of OGSI–80 stands within change data to display actual changes in generation anticoagulant rodenticides the NWFP portion of the DPS occurred forests that approximate conditions and neurotoxicant rodenticides. Both at a rate of 8 percent over the 20-year suitable for fisher habitat, although we the draft and final Species Reports period, or 4 percent per decade realize that net changes include other detail the exposure of the NCSO DPS of (calculated from Davis et al. (2015, disturbances and that vegetation fishers to rodenticides in northern Tables 6 and 7, pp. 30–31)). This management will be some unknown California and southern Oregon (Service ingrowth more than offsets the OGSI–80 portion of that change. 2014, pp. 149–166; Service 2016, pp. stands lost to vegetation management. For the Sierra Nevada Range (note 141–159). Data available since the However, there is still an overall net that this includes the entire range, as we completion of the final Species Report loss of OGSI–80 stands in the DPS were not able to split out the SSN DPS in 2016 continue to document exposure because all disturbances (i.e., wildfire from the NCSO DPS), we approximated and mortalities to fishers from and forest insects and pathogens) need fisher habitat change using a vegetation rodenticides in the NCSO DPS (Gabriel to be considered. When all disturbances trend analysis to track changes in forests and Wengert 2019, unpublished data, and ingrowth are factored in, there is a with large structural conditions thought entire). Data for 48 fisher carcasses net loss of 1 percent per decade. to be associated with fisher habitat (see collected in the range of the NCSO DPS However, vegetation management Service 2016, p. 106 for a description in the period 2007–2018 indicate 36 affects a small portion of those habitat related to using GNN data). The fishers (75 percent) tested positive for components used by fisher within the vegetation category tracked in this one or more rodenticides (Gabriel and NWFP area. Furthermore, ingrowth rates analysis is not equivalent to the OGSI– Wengert 2019, unpublished data), while are expected to increase in the 80 forests used by Davis et al. (2015, 13.5 percent of fisher mortalities with a foreseeable future on Federal lands entire). Instead, the available data known cause in the NCSO DPS from within the NWFP area because forests limited us to using predefined structure 2007 through 2014 were attributable to regenerating from the post-World War II conditions describing forests with larger rodenticides (7 of 52 mortalities) harvest boom starting in the 1940s are trees (greater than 20 in (50 cm)). We (Gabriel et al. 2015, p. 6). Using data beginning to meet the OGSI–80 realize this process may not include all from both the SSN and the NCSO DPSs, threshold (Davis et al. 2015, p. 7). vegetation types used by fishers. This mortalities due to rodenticide toxicosis We note that we incorporated the loss analysis showed that net loss of forests increased from 5.6 to 18.7 percent since of OGSI–80 stands to wildfire into this with larger structural conditions in the the collection and testing of fisher analysis of vegetation management only Sierra Nevada Range was 6.2 percent mortalities using data comparing the to fully consider the degree to which across all ownerships over the past 20 periods 2007–2011 to 2012–2014 ingrowth can offset loss of OGSI–80 years, which equates to a loss of 3.1 (Gabriel and Wengert 2019, unpublished stands to disturbance. We use a different percent per decade. However, this data, p. 2). From 2015 to 2018, metric to address the loss of fisher amount is loss associated with all additional NCSO DPS fisher mortalities habitat to wildfire (see the Wildfire and disturbance types, including wildfire, due to both anticoagulant and Wildfire Suppression section). For the insects, and disease, that occurred from neurotoxicant rodenticides have been wildfire analysis, we were able to obtain 1993 through 2012. Hence, vegetation documented (Gabriel and Wengert 2019, data from past wildfires and overlay it management is some unknown subset of unpublished data, p. 4). At the Hoopa on fisher habitat to better represent this loss. study site, population monitoring found

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‘‘the population as a whole is essentially data were being collected (Gabriel et al. and fluctuation information in NSN and stable’’ (Higley et al. 2014, p. 31), but 2015, entire; Gabriel et al. 2017, entire; at the EKSA and Hoopa sites). there are concerns about declines in Gabriel and Wengert, unpublished data Illegally used toxicants like survival of males over the last 3 years 2019, entire), and presumably there rodenticides remain a threat to fishers of the study. The authors speculate this were illegal grow sites distributed within the NCSO DPS now and in the decline in male survival is attributed to throughout the landscape. Illegal foreseeable future. Where illegal toxicant poisoning associated with marijuana cultivation has been marijuana grow sites occur on the illegal grow sites and that males were occurring in California since the mid- landscape and overlap with fisher identified as being at a higher risk for 1970s. To some degree, the fisher’s ranges, illegally used pesticides have a poisoning because of their larger home widespread distribution and relative high potential to harm those exposed ranges compared to females (Higley et commonness in the NCSO DPS diffuses individual fishers. However, while the al. 2014, pp. 32, 38). the potential for a significant percentage threat of people developing illegal grow To evaluate the risk to NCSO DPS of the subpopulation to be exposed to sites is widespread, we also note that fishers from illegal grow sites, we use a these toxicants. The presence of illegal such sites are generally widely Maximum Entropy model to identify grow sites on the landscape since the dispersed within remote landscapes high and moderate likelihood of illegal mid-1970s suggests that the fisher has across the DPS range (i.e., illegal grow sites being located within fisher been living with this threat for some growers look to be as isolated and habitat (Gabriel and Wengert 2019, time. hidden as possible). This situation unpublished data, pp. 7–10) in Oregon We do not know what level of would suggest that potential for and California. This model indicates toxicant exposure is occurring in live significant exposure to fishers is that 54 percent of habitat modeled for fishers in the wild. The best available generally limited to where the grow NCSO DPS fishers is within areas of mortality data are limited (19 sites are located. However, while there high and moderate likelihood for individuals in California (Gabriel and is no certain discernible trend regarding marijuana cultivation. Wengert 2019, unpublished data, p. 5), whether illegal grow sites may increase The majority of our illegal grow site and of the 2 fishers found in Oregon that or decrease as a result of marijuana data comes from California, and data are were tested for rodenticide exposure, legalization, it will still likely take many limited for the amount of pesticides both tested positive (Clayton 2016, pers. years before the currently existing sites used in Oregon. The USFS documented comm.). We also do not know how the can be found and remediated. 63 trespass grows between 2006 and legalization of marijuana will change Potential for Effects Associated With 2016, with toxicants present at all these grow-site location and potentially affect Small Population Size sites (Clayton 2019, pers. comm.). In a exposure and mortality rates of fishers separate effort, only one illegal grow site due to rodenticides. The NCSO DPS, which encompasses in southern Oregon has been sampled We view toxicants as a potentially both the SOC and NSN reintroduction using the same protocol as 300 illegal significant threat to fishers in the NCSO sites, covers a relatively large grow sites in California where the DPS because of the reported exposure geographic area of approximately 15,444 amount and type of rodenticide at a site rate of toxicants in the NCSO DPS, the mi2 (40,000 km2). Overall, the NCSO is tracked. This southern Oregon reported mortalities of fishers from DPS has not expanded beyond our location had 54 pounds (lb) (24.5 toxicants in the NCSO DPS, the variety previous estimates; however, the SOC kilograms (kg)) of first-generation of potential sublethal effects due to subpopulation may have contracted anticoagulant rodenticide and 8 lb (3.6 exposure to rodenticides (including (Barry 2018, p. 22; Moriarty et al. 2019, kg) of neurotoxicant rodenticide potential reduced ability to capture prey p. 5) while the NSN subpopulation dispersed around the site (Gabriel and and avoid predators), and the degree to continues to grow (Powell et al. 2019, p. Wengert 2019, unpublished data, p. 7). which illegal cannabis cultivation 2). Please see the Current Condition As of January 24, 2020, 2,138 legal overlaps with the range and habitat of section above for detailed information marijuana cultivation permits were fisher in the NCSO DPS. The exposure on subpopulation size estimates. active in counties within the NCSO and rate of 75 percent of fisher carcasses Generally, the ability of a species (or SSN DPSs in California (California tested in the NCSO DPS has not DPS) to withstand a catastrophic event Department of Food and Agriculture declined between 2007 and 2018 (i.e., bounce back from an event that 2020, entire), and 423 legal marijuana (Gabriel and Wengert 2019, unpublished may result in the loss of a population or operations have been approved as of data, pp. 3–4), while toxicosis has large proportion of individuals) is lower January 17, 2020, in Oregon counties increased since 2007 (Gabriel et al. with relatively few populations or a occupied by fishers (Oregon Liquor 2015, p. 7). As noted above, we do not very limited distribution across the Control Commission 2020, entire). know the exposure rate of live fishers to landscape. Overall, the NCSO DPS has Toxicant use on the landscape, and toxicants because this data is difficult to not appeared to grow or expand, despite especially anticoagulant rodenticides, is collect. In addition, the minimum the availability of suitable habitat. a problem for fisher. However, the NSN amount of anticoagulant and However, multiple, well-distributed subpopulation has grown to the point of neurotoxicant rodenticides required for subpopulations (i.e., NCSO, NSN, and becoming self-sustaining (Green et al. sublethal or lethal poisoning of fishers SOC) continue to exist across the DPS; 2020, p. 11; Powell et al. 2019, p. 4) is currently unknown. In spite of the this occurrence includes aggregates of even with 11 of 12 fishers testing widespread nature of illegal grow sites individuals in geographic areas within positive for anticoagulant rodenticides and their known association with illegal NCSO (i.e., EKSA fishers, fishers in and (Powell et al. 2019, p. 17). This finding rodenticide use, as well as the around Redwood National Park, Hoopa suggests that toxicants may not be prevalence of toxicants occurring in fishers, or fishers spread downslope of having a limiting effect on growth in tested fishers, the NCSO subpopulation the Siskiyou Crest). At this time, the this subpopulation. And, at EKSA only may be demonstrating an ability to best available information for monitored small annual variations were seen in the withstand this threat with regard to fishers within the DPS (e.g., Green 2017, lambda value (Table 2) from 2006 to population growth (see discussions Higley et al. 2014, Powell et al. 2014, 2013 (Green et al. 2016, p. 15). This above in Current Condition section entire; Sweitzer et al. 2015a, entire) does period is at the same time as toxicant regarding observed population growth not indicate whether the NCSO DPS is

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increasing, stable, or declining. Tucker Disease and Predation it requires full evaluation and disclosure et al. (2012, pp. 8, 11) found low genetic A general description of disease and of the effects of Federal actions on the diversity within the NCSO population predation on fishers is provided above environment. (and SSN population), but the NCSO (see General Species Information and Other Federal regulations affecting population (and SSN population) had Summary of Threats). Specific to the fishers are the Multiple-Use Sustained also exhibited low genetic diversity California portion of the NCSO DPS, of Yield Act of 1960, as amended (16 from samples collected between 1880 42 fisher mortalities analyzed, 54 U.S.C. 528 et seq.), and the National and 1920, suggesting that the currently percent were a result of predation and Forest Management Act of 1976, as low diversity occurred prior to when the 19 percent were caused by disease amended (NFMA) (90 Stat. 2949 et seq.; historical samples were taken, and thus (Gabriel et al. 2015, p. 7, Table 2). It is 16 U.S.C. 1601 et seq.). The NFMA prior to European settlement. However, not unexpected that predation is the specifies that the USFS must have a fishers have rebounded from substantial greatest source of mortality given the land and resource management plan to population reductions that resulted suite of larger, generalist predators that guide and set standards for all natural from historical trapping and habitat occupy the NCSO DPS (e.g., coyotes, resource management activities on each loss, and they are currently widespread bobcats, and mountain lions). As noted National Forest or National Grassland. and common across the DPS. Fishers are in the General Species Information and Additionally, the fisher has been identified as a sensitive species and a well distributed across the NCSO DPS, Summary of Threats section, we do not species of conservation concern by the without barriers for genetic exchange know whether observed predation rates USFS, requiring Forest Plans to include between and among its subpopulations are substantially different from Standards and Guidelines designed to (e.g., genetically homogeneous fishers historical rates, or whether they are benefit fisher. Overall, per USFS occupy either side of the Klamath River comparable with other populations not guidelines under the NFMA, planning adjacent to a two-lane, paved highway subjected to trapping. We acknowledge rules must consider the maintenance of (Service 2016, p. 113). Genetic diversity that sublethal effects of toxicants as well viable populations of species of decreases moving southward with the as a possible increase in exposure to conservation concern. peripheral areas having the lowest generalist predators as a result of habitat genetic diversity (Wisely et al. 2004, BLM management is directed by the modification may result in higher Federal Land Policy and Management entire). Low genetic diversity can result predation rates than what historically in inbreeding depression, and one way Act of 1976, as amended (43 U.S.C. 1704 occurred (Gabriel et al. 2015, p. 14). et seq.). This legislation provides to assess the risk of inbreeding However, fishers continue to remain depression is to determine the effective direction for resource planning and widely distributed across the DPS, there establishes that BLM lands shall be population size. An effective population is recent evidence of population growth managed under the principles of size is the number of individuals in an from the NSN subpopulation, and the multiple use and sustained yield. This ideal population that would result in EKSA exhibits seemingly normal law directs development and the same level of inbreeding or genetic variability in spite of these stressors. implementation of resource drift as that of the population under management plans, which guide study (Jamieson and Allendorf 2012, p. Vehicle Collisions management of BLM lands at the local 578). It is usually substantially smaller Vehicle-related mortalities make up a level. Fishers are also designated as a than the actual number of individuals in small portion of overall fisher mortality sensitive species on BLM lands. the population, often 10 to 20 percent of across California (see General Species In addition, the NWFP was adopted the census (actual) population size Information and Summary of Threats by the USFS and BLM in 1994 to guide (Frankham 1995, p. 100). An effective above) and particularly in the NCSO the management of more than 24 population size estimate of 128 DPS (Service 2016, p. 138). Although million ac (9.7 million ha) of Federal individuals for northwestern California major paved highways with high-speed lands within the range of the northern suggests inbreeding depression is not a traffic occur throughout the DPS, spotted owl, which overlaps with problem (Tucker et al. 2012, pp. 7–8, 10) available records do not indicate portions of the NCSO DPS of fisher in when compared to thresholds of 50 or localized areas of concentrated Oregon and northwestern California 100 individuals from the established mortalities that may substantially (USDA and U.S. Department of the literature discussing effective decrease local fisher populations. Interior (DOI) 1994, entire). The NWFP population sizes (Jamieson and Hence, we do not consider vehicle Record of Decision amended the Allendorf 2012, entire; Frankham et al. collisions to be a substantial threat to management plans of National Forests 2014, entire). fishers in the NCSO DPS. and BLM districts and provided the As we have described herein and Existing Regulatory Mechanisms basis for conservation of the northern previously, the NCSO DPS is isolated spotted owl and other late-successional from other fisher populations, and small Forest Service (USFS) and BLM and old-growth forest associated species relative to the taxon as a whole. As A number of Federal agency on Federal lands. However, in 2016 the such, the risks of small population size regulatory mechanisms pertain to BLM revised their Resource effects and of extinction exist. However, management of fisher (and other species Management Plan (RMP), replacing the broad distribution of the DPS across and habitat). Most Federal activities NWFP direction for BLM-administered its range, in combination with the DPS must comply with the National lands in western Oregon, totaling occurring in multiple subpopulations Environmental Policy Act of 1969, as approximately 2.5 million ac (1 million with no barriers to genetic exchange amended (NEPA) (42 U.S.C. 4321 et ha) (BLM 2016a, 2016b, entire). This within and between those seq.). NEPA requires Federal agencies to RMP affects BLM lands, which are subpopulations, and the low likelihood formally document, consider, and mostly in the interior portion of the of a catastrophic event at a scale that publicly disclose the environmental NCSO DPS in Oregon and portions of could hypothetically affect the entire impacts of major Federal actions and the SOC subpopulation. DPS, indicates that the risks of small management decisions significantly Compared with management under population size effects and of extinction affecting the human environment. NEPA the NWFP, BLM’s revised RMP results are very low. does not regulate or protect fishers, but in a decrease in land allocated for

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timber harvest, from 28 percent of their within 50 to 100 years of the 1994 Difenacoum, and Difethialone (Second planning area in the Matrix allocation NWFP implementation (Davis et al. Generation Anticoagulant Rodenticide under NWFP to 20 percent under their 2015, p. 7). Furthermore, BLM, under its Products) as Restricted Materials, revised RMP. However, volume of revised management plans, is also California Department of Pesticide timber harvest is expected to increase to projecting an increase in forest stand Regulation, 2014). The primary 278 million board feet per year through conditions that are assumed to represent regulatory issue for fishers with respect the first decade, up from the highest fisher habitat above current conditions to rodenticides is the availability of NWFP annual amount of about 250 beginning in the third decade of plan large quantities of rodenticides that can million board feet, and the average implementation (BLM 2015, p. 875). be purchased under the guise of legal NWFP annual amount of 167 (BLM National Park Service uses, but are then used illegally at 2015, pp. 350–352). Forest stand marijuana grow sites within fisher conditions assumed to represent fisher Statutory direction for the National habitat. Both the Environmental habitat are expected to decline in the Park Service (NPS) lands within the Protection Agency (EPA) and first two decades under the revised NCSO DPS is provided by the California’s Department of Pesticide RMP, similar to projections under the provisions of the National Park Service Regulation developed an effort to reduce NWFP. However, by decade three, Organic Act of 1916, as amended (54 the risk posed by the availability of habitat is projected to increase under U.S.C. 100101). Land management plans second-generation anticoagulants to the revised plan compared to the NWFP for the National Parks within Oregon end-users, through the 2008 Risk because more fisher habitat is in reserve and California do not contain specific Mitigation Decision for Ten measures to protect fishers, but areas allocations under the revised plan (75 Rodenticides (EPA 2008, entire). This not developed specifically for recreation percent of fisher habitat on BLM land) effort issued new legal requirements for and camping are managed toward than under the NWFP (49 percent) (BLM the labeling, packaging, and sale of natural processes and species 2015, pp. 1,704–1,709). We second-generation anticoagulants, and composition and are expected to acknowledge that a court recently found through a rule effective in July 2014, maintain fisher habitat where it is that the revised RMP violated statutes restricted access to second-generation present. regulating timber harvest by setting anticoagulants (California Food and aside timberland in reserves where the Tribal Lands Agricultural Code Section 12978.7). land is not managed for permanent Several tribes within the NCSO DPS State Regulatory Mechanisms forest production and the timber is not recognize fishers as a culturally sold, cut, and removed in conformity significant species, but only a few tribes Oregon with the principle of sustained yield; have fisher-specific guidelines in their The fisher is a protected wildlife the decision has been appealed, and forest management plans. Some tribes, species in Oregon, meaning it is illegal thus the ultimate outcome is as yet while not managing their lands for to kill or possess fishers (Oregon unknown (American Forest Resources fishers explicitly, manage for forest Administrative Rule (OAR) 635–044– Council, et al., v. Hammond, et al., 2019 conditions conducive to fisher (for 0430). In addition, Oregon Department WL 6311896 (D.D.C. November 22, example, marbled murrelet of Fish and Wildlife does not allow 2019) (appeal pending, American Forest (Brachyramphus marmoratus) habitat, trapping of fishers in Oregon. Although Resources Council, et al. v. United old-forest structure restoration). fishers can be injured and/or killed by States, et al., (D.C. Cir., appeal filed Trapping is typically allowed on most traps set for other species, known fisher January 24, 2020)). Thus, while we reservations and tribal lands, but it is captures are infrequent (Service 2016, p. recognize that timber harvest on BLM typically restricted to tribal members. 126). State parks in Oregon are managed lands could possibly increase in the Whereas a few tribal governments trap by the Oregon Parks and Recreation future, at this point we use the existing under existing State trapping laws, most Department, and many State parks in RMP in our analysis of regulatory have enacted trapping laws under their Oregon provide forested habitats mechanisms. respective tribal codes. However, suitable for fishers. Federal lands are important for fishers trapping (in general) is not known to be because they have a network of late- a common occurrence on any of the The Oregon Forest Practice successional and old-growth forests that tribal lands. Administrative Rules (OAR chapter 629, currently provide habitat for fisher, and division 600) and Forest Practices Act the amounts of fisher habitat are Rodenticide Regulatory Mechanisms (Oregon Revised Statutes 527.610 to expected to increase over time. Also, the The threats posed to fishers from the 527.770, 527.990(1) and 527.992) (ODF National Forest and BLM units with use of rodenticides are described under 2018, entire) apply to all non-Federal watersheds inhabited by anadromous the Exposure to Toxicants section, and non-tribal lands in Oregon, fish provide buffers for riparian reserves above. In the 2016 final Species Report regulating activities that are part of the on either side of a stream, depending on (Service 2016, pp. 187–189), we commercial growing and harvesting of the stream type and size. With limited analyzed whether existing regulatory trees, including timber harvesting, road exceptions, timber harvesting is not mechanisms are able to address the construction and maintenance, slash permitted in riparian reserves, and the potential threats to fishers posed from treatment, reforestation, and pesticide additional protection guidelines both legal and illegal use of and fertilizer use. The OAR provides provided by National Forests and BLM rodenticides. As described in the 2016 additional guidelines intended for for these areas may provide refugia and final Species Report, the use of conserving soils, water, fish and wildlife connectivity between blocks of fisher rodenticides is regulated by several habitat, and specific wildlife species habitat. Also, under the NWFP, the Federal and State mechanisms (e.g., while engaging in tree growing and USFS, while anticipating losses of late- Federal Insecticide, Fungicide, and harvesting activities, and these rules successional and old-growth forests in Rodenticide Act of 1947, as amended, may result in retention of some the initial decades of plan (FIFRA) 7 U.S.C. 136 et seq.; California structural features (i.e., snags, green implementation, projected that Final Regulation Designating trees, downed wood) that contribute to recruitment would exceed those losses Brodifacoum, Bromadiolone, fisher habitat.

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Management of State forest lands is 1973, a set of regulations and policies trees in areas with sparse overstory guided by forest management plans. designed to maintain the economic cover, and avoid poisoning potential Managing for the structural habitats as viability of the State’s forest products prey species. While the MOU is not described in existing plans should industry while preventing specific to what fuels reduction increase habitat for fishers on State environmental degradation. The FPRs measures will take place on the ground, forests. However, we acknowledge that do not contain rules specific to fishers, the MOU will increase the effectiveness the Oregon Department of Forestry but they may provide some protection of of fuels management by considering recently lost a lawsuit on its State Forest fisher habitat as a result of timber data and information and coordinating Management Plans that could result in harvest restrictions. efforts for entire landscapes across increased timber harvest and reduced multiple ownerships (USFS et al. 2020, Voluntary Conservation Mechanisms retention or development of forest area p. 3). suitable for fishers, but the ultimate An intergovernmental memorandum There are additional MOUs in remedy is still unknown. Hence, we of understanding (MOU) for fisher California within the range of the NCSO must use the existing plans in our conservation was signed in 2016 by DPS for wildfire and fuels management, analysis of regulatory mechanisms. Federal and State agencies in Oregon that have no specific conservation (DOI et al. 2016, entire) to facilitate and measures for fisher, but that include California coordinate fisher conservation activities other species that use habitat similar to On June 10, 2015, CDFW submitted among the parties, with an expiration those used by fisher (i.e., northern and its status review of the fisher to the date of April 2021. While we are not California spotted owls). An MOU was California Fish and Game Commission aware of how the MOU might influence signed in 2015 by multiple conservation (CFGC), indicating that listing of the specific projects (affect actual work on groups, CAL FIRE, two Federal agencies, fisher in the Southern Sierra Nevada the ground), we consider the facilitation and two prescribed fire councils (USFS Evolutionarily Significant Unit (ESU) as and coordination of fisher conservation et al. 2015). The MOU is titled threatened was warranted, but that activities and the projects that follow a ‘‘Cooperating for the purpose of fishers in the Northern California ESU benefit. Multiple interagency MOUs are increasing the use of fire to meet (similar to the California portion of the also in place in California with the ecological and other management NCSO DPS) were not threatened (CDFW intention to coordinate and collaborate objectives,’’ and expires on October 7, 2015, entire). CFGC made their final on actions that may reduce wildfire risk 2020. The purpose of this MOU is to determination to list the Southern Sierra across multiple ownerships; actions that document the cooperation between the Nevada ESU as threatened and that reduce wildfire may also reduce risk to parties to increase the use of fire to meet listing the Northern California ESU was habitat loss for multiple species ecological and other management not warranted on April 20, 2016 (CFGC including the fisher. Since the objectives. Peripheral to the 2017 MOU 2016, p. 10). The determination publication of the 2019 Revised for California spotted owl (that has been regarding the Northern California ESU Proposed Rule, an interagency MOU superseded by the 2020 MOU discussed was made after concluding that the (titled ‘‘Forest Fuels Reduction and above), a challenge cost-share agreement cumulative effects of threats would not Species Conservation in California’’) was signed in 2017 by the National Fish threaten the continued existence of was signed on February 7, 2020, and and Wildlife Foundation, and the USFS, fishers due to the size and widespread amended on February 12, 2020, by the Pacific Southwest Region, Regional distribution of the fisher population in USFS, the State, small timber Office (USFS 2017); the cost share the ESU (CDFW 2015, p. 141; CFGC companies, industrial timber agreement expires June 29, 2022. The 2016, pp. 7–10). Accordingly, the companies, and the National Fish and agreement is titled ‘‘Pacific Southwest Northern California ESU is not listed Wildlife Foundation to facilitate Fuels Management Strategic Investment under the California Endangered coordinated actions that may contribute Partnership.’’ The purpose of this Species Act (CESA), and take as defined to fuels reduction efforts and species agreement is to document the under CESA of the Northern California conservation across the various land cooperation between the parties to ESU is not prohibited. It remains illegal ownerships between now and December implement a hazardous fuels to intentionally trap fishers in all of 2024 (USFS et al. 2020, entire). An management program that reduces the California (Cal. Code Regs. title 14, § 460 addendum was signed on February 12, risk of severe wildfire, protects 2017). Data on incidental captures of 2020, adding additional industrial ecological values, and reduces the fishers in traps set for other furbearer timber companies and small timber chance of damage to public and private species is not available, but the companies. This MOU supersedes improvements. requirement to use non-body-gripping multiple previous MOUs from 2017 and Finally, an MOU was signed in 2019 traps suggests that most trapped fishers 2019 for NSO and CSO (USFS 2020, pp. by small timber companies, industrial could be released unharmed (Service 1, 13–14). Fisher-specific conservation timber companies, CAL FIRE, the 2016, p. 126). measures are included in this MOU, in National Fish and Wildlife Foundation, The California Environmental Quality addition to conservation measures for and the USFS, Pacific Southwest Act (CEQA) can provide protections for the California and northern spotted Region, Regional Office (USFS 2019). a species that meets one of several owls. The measures promote fisher The MOU is titled ‘‘Forest Fuels criteria for rarity (CEQA 15380). Fishers occupancy and habitat through reduction and species conservation in throughout the NCSO DPS’s range in increased resilience and resistance of California’’ with a focus on the California meet these criteria, and under habitat from multiple disturbances, California spotted owl and expires on CEQA, a lead agency can require that including uncharacteristic wildfire. December 31, 2020. The MOU adverse impacts be avoided, minimized, More specifically, participants will approximately covers the area occupied or mitigated for projects subject to implement activities consistent with the by the NSN subpopulation of fishers in CEQA review that may impact fisher conservation needs of the fisher the NCSO. The purpose of the MOU, habitat. All non-Federal forests in including retention of known natal similar to others mentioned, is to California are governed by the State’s dens, retention or recruitment of coordinate and share information on Forest Practice Rules (FPR) under the hardwoods and structurally diverse fuels reductions actions across larger Z’Berg Nejedly Forest Practice Act of forests, retention of shrubs and smaller landscapes to provide species

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conservation. We cannot find language Management Unit (NSN) with the fishers, (2) creation of ‘‘channel indicating that this MOU was potential to connect with fishers in the migration zones’’ and ‘‘riparian superseded by the 2020 MOU remainder of the NCSO DPS to the management zones’’ to provide (discussed above) but many of the same north. In 2016, an approximately 1.6 connectivity across the landscape, and landowners are part of both MOUs and million-ac (647 thousand-ha) CCAA for (3) retention and recruitment of suitable much of the intent is the same. fishers on lands in SPI ownership in the habitat structural elements that provide All of these MOUs and the cost-share Klamath, Cascade, and Sierra Nevada late-seral habitat features for fishers agreement provide collaboration mountains was completed (SPI and when cut stands reach mid-succession. between Federal partners and non- Service 2016, entire). This CCAA Resiliency, Redundancy, and governmental organizations to encompasses approximately 5 percent of Representation coordinate and fund fuel reduction potentially suitable fisher habitat in the projects within the NCSO DPS, which California portion of the NCSO DPS, 2.7 In this section, we use the when implemented could reduce the percent of which is currently occupied. conservation biology principles of impact of large-scale high-severity fire. Implementation and monitoring have resiliency, redundancy, and So far, we are aware of two fuel been underway since that time. The representation to evaluate how the reduction projects that have been objectives of this CCAA are to secure threats, regulatory mechanisms, and funded as part of the MOUs within the general forested habitat conditions for conservation measures identified above NCSO DPS, one on the Lassen National fishers for a 10-year time period (2016 relate to the current and future Forest and one on the Six Rivers to 2026) and the retention of important condition of the NCSO DPS. National Forest. Finally, many of the fisher habitat components (large trees, Resiliency is defined as the ability of MOUs expire in the near term; however, hardwoods, and snags) suitable for populations to withstand stochastic we anticipate, based on past track denning and resting into the future. events (events arising from random records to renew and update the MOUs, Although this CCAA expires in 6 years, factors). Measured by the size and continuing collaboration, and because SPI has a track record of partnering with growth rate of populations, resiliency many of the same partners occur on the Service and has demonstrated a gauges the probability that the multiple MOUs, partnerships resulting commitment to fisher conservation populations comprising a species (or in conservation of fisher habitat will through the development of this CCAA. DPS) are able to withstand or bounce continue. We anticipate at the end of the CCAA, back from environmental or A template CCAA for fishers in SPI will continue to conserve fisher. demographic stochastic events. western Oregon (81 FR 15737, March This conservation could be embodied in Redundancy is defined as the ability 24, 2016) has been published, and we a new or renewed CCAA, or fisher of a species (or DPS) to withstand have negotiated site plans and issued conservation could be added to an HCP catastrophic events, and may be permits to five private timber entities that is currently in development for characterized by the degree of (with three more site plans under northern and California spotted owls. distribution of the species, either as review), as well as Oregon Department In 2019, the Service finalized for the individuals of a single population or as of Forestry (84 FR 4851, February 19, Green Diamond Forest Resource multiple populations, within the 2019; 84 FR 31903, July 3, 2019). Company HCP (GDRC 2018, entire) an species’ ecological settings and across Conservation actions in the CCAA incidental take permit that is the species’ range. The greater include protection of occupied den sites anticipated to provide a conservation redundancy a species exhibits, the as well as landowner participation and benefit for fishers and their habitat in greater the chance that the loss of a collaboration with fisher surveys and Del Norte and Humboldt Counties, single population (or a portion of a research as part of a defined program of California (portions of forests on the single population) will have little or no work. To date, permittees have west slope of the coastal and Klamath lasting effect on the structure and committed $200,000 in cash or in-kind Mountains). Conservation benefits functioning of the species as a whole. support towards this program of work as anticipated by GDRC include (but are While such a loss would temporarily part of meeting conservation measures not limited to): Identifying and retaining ‘‘lower’’ the species’ redundancy within the CCAA. fisher denning and resting trees, relative to any future catastrophic In 2009, a programmatic Safe Harbor including maintaining a 0.25-mi (0.4- events (i.e., a second catastrophic event Agreement (SHA) was completed for km) radius no-harvest buffer around causing the loss of another population northern spotted owls in Oregon (74 FR active fisher dens; fisher-proofing water or portion before the species was able to 35883, July 21, 2009). The agreement tanks and pipes; implementing bounce back from the first loss), the authorizes the ODF to extend incidental measures that detect, discourage, and higher a species’ initial redundancy, the take coverage with assurances through remove unauthorized marijuana greater the likelihood its structure and issuance of Certificates of Inclusion to cultivation and associated pesticide use; functioning as a whole will be restored eligible, non-Federal landowners who and cooperating with any Federal or before any subsequent catastrophic are willing to carry out habitat State-approved fisher capture and events. management measures benefitting the relocation/reintroduction recovery Representation is defined as the northern spotted owl. The purpose of programs (Service 2019a, p. 2). ability of a species (or DPS) to adapt to the agreement is to encourage non- In 1999, the Service finalized for the changing environmental conditions. Federal landowners to create, maintain, Pacific Lumber Company (now Measured by the breadth of genetic or and enhance spotted owl habitat Humboldt Redwood Company) HCP environmental diversity within and through forest management, which (Pacific Lumber Company et al. 1999, among populations, representation would also benefit fishers given the two entire) an incidental take permit that gauges the probability that a species is species’ use of similar habitat provides a conservation benefit for capable of adapting to environmental components. fishers and their habitat in Humboldt changes. For the portion of the NCSO DPS in County, California. Conservation As noted above, the resiliency of California, reintroduction efforts have benefits include, but are not limited to: species’ population(s), and hence an resulted in establishment of a fisher (1) Retention of late-seral habitats that assessment of the species’ overall subpopulation in the SPI Stirling provide denning and resting habitat for resiliency, can be evaluated by

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population size and growth rate. While such, these threats have limited, or no in representation, relative to that data on these parameters are often not impact on the resiliency of the historical condition. As such, fishers in readily available, inferences about populations comprising the NCSO DPS. the west coast states have a relatively resiliency may be drawn from other Further, we point to the evidence of reduced ability to adapt to changing demographic measures. In the case of population resilience exhibited by environmental conditions. However, the NCSO DPS, the population size aggregates of individuals in specific similarly to our discussion above component of resiliency for the overall geographic areas in the NCSO DPS in regarding resiliency, the predominant DPS may be lower than historical levels response to known disturbances or impact of the historical reduction in to some degree, based simply on threats. Namely, fishers in the EKSA representation for west coast fishers is historical losses. However, we also were resilient to removal of 20 percent seen in the SSN DPS. The NCSO DPS, know that fishers in the DPS have of the population within the study area, even with a reduced range relative to rebounded from the lows of the early- with no changes in abundance or historical conditions, still exhibits a and mid-1900s, and continue to remain density. In addition, the fisher wide breadth of genetic or widely distributed and common across population at NSN has grown at a near environmental diversity, and thus has the DPS. Furthermore, forest carnivores steady rate since reintroduction in spite sufficient capacity to withstand future generally occur at low densities of exposure to toxicants in 11 of 12 environmental changes. Fishers in the (Ruggiero et al. 1994, p. 146), and fisher tested fishers in the study area (Powell DPS display a high degree of density estimates are widely variable for et al. 2019, p. 16). Overall, the best representation, exhibited by the many reasons, including changes in available information indicates that, ecological variability across the DPS. prey populations, seasonal changes although the threats acting upon the Fishers are found across multiple caused by pulses in births or mortalities, DPS result in losses of individual physiographic provinces (a geographic and sampling error (Powell and fishers, the various subpopulations region with a specific geomorphology) Zielinski 1994, p. 43). Effective comprising the NCSO DPS, and hence in the NCSO DPS that represent a wide population size estimates for the the NCSO DPS as a whole, are resilient variety of forest types and ecological California portion of the DPS do not and able to withstand stochastic events. conditions, from the Coastal California indicate that inbreeding depression is With regard to redundancy, multiple, province that is wetter with lower occurring (see Effects Associated with interacting populations across a broad elevations and redwood forests, to the Small Population Size). This geographic area or a single wide-ranging Klamath province with greater forest combination of qualitative demographic population (redundancy) provide diversity and abundant hardwoods, measures (i.e., population rebound from insurance against the risk of extinction including several endemic tree and historic lows, and effective population caused by catastrophic events. As was other plant species, to the Sierra and size estimates showing no indication of recognized in the 2019 Revised Cascade provinces with higher inbreeding depression), combined with Proposed Rule, the NCSO DPS exhibits elevations and forests that have adapted the widespread distribution of fishers in redundancy by being well distributed to colder and drier conditions. Within the DPS, leads us to conclude that and common across a broad geographic the NCSO DPS, fishers have a capacity existing populations have a high level of range and comprising multiple smaller to occupy these different provinces and resiliency. subpopulations (i.e., NCSO, NSN, and environments, reflecting an ability to SOC) and aggregates of individuals in adapt to changing environmental Threats that cause losses of geographic areas (i.e., EKSA fishers, conditions, further contributing to long- individuals from a population have the fishers in and around Redwood National term viability across their range. potential to affect the overall resiliency Park, Hoopa fishers, or fishers spread Although genetic diversity among of that population, and when losses downslope of the Siskiyou Crest) (see 84 fishers sampled in northwest California occur at a scale large enough that the FR at 60299). Consequently, should is low and has been low since pre- overall population size and growth rate catastrophic events such as wildfire European settlement (Tucker et al. 2012, are negatively impacted, this could affect a portion of the DPS, substantial p. 8), fishers have rebounded from reduce the population’s ability to numbers of fishers will still occur substantial population reductions that withstand stochastic events. Although elsewhere in the DPS. While the loss of resulted from historical trapping and we identify threats acting upon the a population within the NCSO DPS, or habitat loss, and although reduced in NCSO DPS that likely cause losses of a substantial portion thereof, would population and range size relative to individuals, evaluation of all the have the effect of temporarily lowering historical conditions, they are currently available information relevant to the the redundancy of the entire DPS, its widespread and common across the demographic condition of the DPS current existing redundancy would be DPS. supports our conclusion of resiliency. In sufficient to allow its structure and addition to the analysis outlined above functioning as a whole to be restored. Determination in this document, we note that in our Remaining fishers would continue to Section 4 of the Act (16 U.S.C. 1533) 2019 Revised Proposed Rule, several of serve as a source for recolonizing and its implementing regulations (50 the threats we evaluated under the disturbed areas as they return to fisher CFR part 424) set forth the procedures previously singular West Coast DPS habitat, contributing to the likelihood for determining whether a species meets were mostly pertinent in the range of that fishers in the DPS will persist into the definition of ‘‘endangered species’’ the SSN DPS. The threats related to the future and contribute to the long- or ‘‘threatened species.’’ The Act defines habitat loss from tree mortality, term genetic and demographic viability an ‘‘endangered species’’ as a species mortality factors related to disease, across the range. that is ‘‘in danger of extinction predation, and vehicle collisions, and As noted in our 2019 Revised throughout all or a significant portion of the inherent vulnerability associated Proposed Rule, fishers in the three west its range,’’ and a ‘‘threatened species’’ as with the small population size, are coast states, including the NCSO DPS, a species that is ‘‘likely to become an predominant in the range of the SSN occur in smaller numbers and a smaller endangered species within the DPS, but were determined to not be distribution than historically. This size foreseeable future throughout all or a potentially significant drivers of future and range reduction due to historical significant portion of its range.’’ The Act status in the range of the NCSO DPS. As losses results in a consequent reduction requires that we determine whether a

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species meets the definition of distribution of the DPS across its range and moderated by the slope and aspect ‘‘endangered species’’ or ‘‘threatened (i.e., not all threats affect every fisher). of terrain (e.g., influencing species’’ because of any of the following In conducting our status assessment susceptibility to wildfire, and creating a factors: (A) The present or threatened of the DPS, we evaluate all identified mosaic of fire severity) throughout the destruction, modification, or threats under the section 4(a)(1) factors, range. curtailment of its habitat or range; (B) and attempt to assess how the • Low likelihood of widespread tree Overutilization for commercial, cumulative impact of all threats acts on mortality resulting from climate- recreational, scientific, or educational the viability of the DPS as a whole. That influenced susceptibility to diseases or purposes; (C) Disease or predation; (D) is, all the anticipated effects from both insect infestations, similarly moderated The inadequacy of existing regulatory habitat-based and direct mortality-based by the slope and aspect of terrain. mechanisms; or (E) Other natural or threats are examined in total and then • Limited exposure to potential manmade factors affecting its continued evaluated in the context of what those effects from vegetation management existence. combined negative effects will mean to actions. Although fishers may the future condition of the DPS. Status Throughout All of Its Range experience localized fragmentation of However, for the vast majority of habitat conditions or an increased risk Our regulations direct us to determine potential threats, the effect on the DPS of predation where vegetation if a species is endangered or threatened (e.g., total losses of individual fishers or management actions will occur, the due to any one or a combination of these their habitat) cannot be quantified with available information indicates only a five threat factors identified in the Act available information. Instead, we use small proportion of the suitable habitat (50 CFR 424.11(c)). Our 2016 final the best available information to gauge in the DPS’s range is likely to undergo Species Report (Service 2016, entire) is the magnitude of each individual threat these actions. the most recent detailed compilation of on the DPS, and then assess how those • Some continued level of exposure fisher ecology and life history, and has effects combined (and as may be to toxicants from illegal marijuana grow a significant amount of analysis related ameliorated by any existing regulatory sites. Such sites are generally widely to the potential impacts of threats mechanisms or conservation efforts) dispersed within remote landscapes within the NCSO DPS’s range. In will impact the DPS’s future viability. across the NCSO DPS range, suggesting Based on our understanding of the addition, we collected and evaluated potential significant exposure to fishers available information indicating the new information available since 2016, is limited to where the grow sites are potential magnitude and scale of how including new information made located. However, where they do occur available to us during the recent all identified threats may affect the DPS, we began under the premise that those within fisher ranges, illegally used comment periods in 2019, to ensure a toxicants have the potential to harm thorough analysis, as discussed above. with the greatest potential to become significant drivers of the future status of those exposed individual fishers. While Across the DPS, the actions or the NCSO DPS were: Wildfire and there is no certain discernible trend conditions we identified that were wildfire suppression; tree mortality regarding whether illegal grow sites may known to or were reasonably likely to from drought, disease, and insect increase or decrease as a result of negatively affect individuals of the DPS infestation; the potential for climate marijuana legalization, it will still likely included: take many years before the currently • change to exacerbate both wildfire and Habitat-based threats such as high- tree mortality; threats related to existing sites can be found and severity wildfire, wildfire suppression vegetation management; and exposure remediated. • activities, and post-fire management to toxicants. The available information Some continued level of risk actions (Factor A); climate change about the remaining threats from the list regarding both the effects associated (Factor E); tree mortality from drought, identified above indicated a lower with small population size (e.g., disease, and insect infestation (Factor potential for becoming significant inbreeding depression) and the general A); vegetation management (Factor A); drivers. risk of extinction. As we have described and human development (Factor A). After conducting our analyses on all herein and previously, the NCSO DPS is • Direct mortality-based threats these threats, we found that the NCSO isolated from other fisher populations, including trapping and incidental DPS as a whole will experience: and small relative to the taxon as a capture (Factor B); research activities • Changing climate conditions, likely whole. As such, the risks of small- (Factor B); disease or predation (factor in the manner of becoming generally population-size effects and of extinction C); collision with vehicles (Factor E); warmer and drier, with subsequent exist. However, the broad distribution of exposure to toxicants (Factor E); and the potential to affect habitat conditions for the DPS across its range, in combination potential for effects associated with fisher, as well as the potential for with the DPS occurring in multiple small population size (Factor E). increased stress levels in individual subpopulations with no barriers to With the exception of trapping for fishers. However, these potential genetic exchange within and between fishers, which is no longer a lawful reactions to changing climate conditions those subpopulations, and the low activity in the range of the NCSO DPS, will likely vary across the DPS, due to likelihood of a catastrophic event at a all of these identified threats have the the DPS’s wide variety of topography scale that could hypothetically affect the potential to negatively affect fishers, and vegetation in its physiographic entire DPS, indicates that the risks of either through direct impacts to provinces, and unpredictable variability small-population-size effects and of individual animals or to the resources in how these provinces will respond to extinction are very low. they need. Regarding incidental capture the changing climate conditions. • Potentially increased incidences of resulting from legal trapping for other • Increased potential for wildfire predation in localized settings (e.g., species, it is either very rare (Service frequency and intensity, influenced by vegetation management action sites), 2016, p. 126) or has a low chance of changing climate conditions. Wildfire, and continued low incidences of causing injury (through use of live while having the potential to cause collisions with vehicles. Both of these traps). Regarding the remainder of significant losses of fishers and their threats are likely to continue, but likely threats, we note that the extent and habitat resources where fires occur, is accounting for losses of only small magnitude of them vary, relative to the sporadic and episodic across the DPS, numbers of individuals.

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• No change in normal incidence of and their prey, the treatments are Status Throughout a Significant Portion disease across the range. expected to reduce the risk of fisher of Its Range In summary, the NCSO DPS will habitat loss to severe wildfires over an Under the Act and our implementing experience mortality and sublethal area much larger than the treatment regulations, a species may warrant effects to individual fishers across the footprint. listing if it is in danger of extinction or range from the combined threats of likely to become so in the foreseeable changing climate conditions, wildfire As noted earlier, no information is future throughout all or a significant and wildfire suppression activities, available that would allow us to portion of its range. Having determined exposure to toxicants, predation, and quantify either the cumulative effect of that the NCSO DPS of fisher is not in collisions with vehicles. Localized the identified threats on the DPS, or the danger of extinction or likely to become effects to fisher habitat resources may cumulative effect of existing regulatory so in the foreseeable future throughout also occur as a result of future tree mechanisms or conservation efforts to all of its range, we now consider mortality events or vegetation ameliorate the effects of those threats. management actions, although these However, in evaluating the anticipated whether it may be in danger of extinction or likely to become so in the will have a low likelihood of causing impact of both in total, we find that the foreseeable future in a significant individual fisher losses. All these effects sum of effects to the DPS are such that: portion of its range. The range of a will be in addition to any mortalities or The resiliency of the various species or DPS can theoretically be sublethal effects the DPS would subpopulations, and hence the DPS as a typically experience from things such as divided into portions in an infinite whole, will not be significantly number of ways, so we first screen the age or disease. negatively affected; its representation, At the same time as we conduct our potential portions of the range to i.e., its breadth of genetic and determine if there are any portions that evaluation of threats to the DPS, we also environmental diversity, will not be assessed how any existing regulatory warrant further consideration. To do the reduced; and its redundancy will mechanisms or conservation efforts are ‘‘screening’’ analysis, we ask whether remain as it currently is, with multiple likely to eliminate or ameliorate the there are portions of the DPS’s range for effects of those threats on the DPS. We subpopulations distributed across a which there is substantial information provided our analyses of existing substantial range of habitat. indicating that: (1) The portion may be regulatory conservation measures and Upon careful consideration and significant; and (2) the species may be, voluntary conservations efforts above in evaluation of all of the information in that portion, either in danger of this document. In that discussion, we before us, we have analyzed the status extinction or likely to become so in the identified a number of measures that are of fishers within the NCSO DPS. In our foreseeable future. For a particular likely to provide benefits to the DPS, 2019 Revised Proposed Rule, we portion, if we cannot answer both either directly or indirectly, in the evaluated the status of the West Coast questions in the affirmative, then that portion does not warrant further manner of maintaining or improving DPS, the NCSO DPS and SSN DPS consideration and the species does not habitat conditions. Federal and State combined, and concluded that both the warrant listing because of its status in agency management plans involving NCSO and SSN were reduced in size that portion of its range. Conversely, we forest management, while designed, in from historical conditions, and that part, for the harvesting of timber, also emphasize that answering both of these threats were acting on fishers across the include provisions for the long-term questions in the affirmative is not a range of both. However, we also noted maintenance of those forests, providing determination that the species is in for the retention of forest habitat and that the distribution of threats and their danger of extinction or likely to become structural elements beneficial to fishers. effects, both singly and cumulatively, so in the foreseeable future throughout We also describe regulatory mechanisms were likely unequal in magnitude and a significant portion of its range—rather, at both the State and Federal level scale across the full landscape. While it is a threshold step to determine designed to minimize the potential for multiple threats such as wildfire and whether a more detailed analysis of the nontarget poisoning by pesticides, as wildfire suppression activities, climate issue is required. well as State and voluntary efforts to change, exposure to toxicants, If we answer these questions in the remediate illegal marijuana sites predation, and vehicle collisions will affirmative, we then conduct a more contaminated by rodenticides. In continue to occur within the range of thorough analysis to determine whether addition, implementation of existing the NCSO DPS, we conclude that the the portion does indeed meet both of the conservation measures in the form of a cumulative effect of threats acting on ‘‘significant portion of its range’’ prongs: recently signed MOU will improve the DPS now, at their current scale and (1) The portion is significant and (2) the communication and coordination magnitude, does not cause the DPS to be species is, in that portion, either in surrounding the implementation of fuels in danger of extinction throughout its danger of extinction or likely to become reduction projects, which in turn may range, especially given the DPS’s overall so in the foreseeable future. help to ameliorate the loss of habitat resiliency, redundancy, and Confirmation that a portion does indeed due to wildfire. While the MOU is not representation. In addition, we conclude meet one of these prongs does not create specific to what fuels reduction projects a presumption, prejudgment, or other that the identified threats will not will take place on the ground or where, determination as to whether the species increase in scale or magnitude in the the MOU will increase the effectiveness is an endangered species or threatened foreseeable future such that the DPS of fuels management by considering species. Rather, we must then undertake data and information for entire will become in danger of extinction a more detailed analysis of the other landscapes across multiple ownerships. throughout its range. Thus, after prong to make that determination. Only This process will contribute to the assessing the best available scientific if the portion does indeed meet both vegetation management threat in the and commercial information, we prongs would the species warrant listing form of removing fisher habitat in the determine that the NCSO DPS of fishers because of its status in a significant short or long term, depending on the is not in danger of extinction throughout portion of its range. treatment. However, by retaining its range, nor likely to become so in the At both stages in this process—the structural elements important to fishers foreseeable future. stage of screening potential portions to

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identify any that warrant further DPS’s range at a biologically meaningful Determination of Status consideration, and the stage of scale. While high-severity wildfires, and undertaking the more detailed analysis associated suppression activities and Our review of the best available of any portions that do warrant further post-fire management, act in a site- scientific and commercial information consideration—it might be more specific manner, the occurrence of them indicates that the NCSO DPS of fisher efficient for us to address the in the DPS’s range is random (i.e., not does not meet the definition of an ‘‘significance’’ question or the ‘‘status’’ geographically concentrated in any endangered species or a threatened question first. Our selection of which portion), and we cannot predict the species in accordance with sections 3(6) question to address first for a particular portions within the range of the NCSO and 3(19) of the Act. Therefore, we find portion depends on the biology of the DPS where these may occur. Similarly, that listing the NCSO DPS of fisher is species, its range, and the threats it climate change, and its associated not warranted at this time. faces. Regardless of which question we influence on the potential threat of Final Listing Determination for SSN address first, if we reach a negative wildfires, will largely act throughout the answer with respect to the first question NCSO DPS range. All other potential Current Condition that we address, we do not need to threats either present a risk of evaluate the second question for that manifesting randomly in small, The SSN DPS of fisher is small and is portion of the species’ range. localized places across the range (e.g., geographically separated from the For the NCSO DPS, we chose to toxicant exposure, disease or predation, remainder of the species as described address the status question (i.e., and vehicle collisions), or manifesting above in the DPS section. While this identifying portions where the DPS may in a focused manner, but still having DPS has persisted in isolation since be in danger of extinction or likely to only localized, site-specific effects (e.g., prior to European settlement (Knaus et become so in the foreseeable future) vegetation management). Regarding al. 2011, entire), the DPS has recently first. To conduct this screening, we small population size, the potential for experienced substantial loss of habitat considered whether any of the threats negative effects can arise in portions of and increase in habitat fragmentation acting on the DPS are geographically a species’ range in instances where there following the 2012–2015 drought concentrated in any portion of the range are small, isolated aggregations of (Thompson et al. 2019a, pp. 8–9). This at a biologically meaningful scale (e.g., individuals. However, there is no period of drought and associated insect there are novel threats not seen evidence to suggest that there are any infestation, fire, and tree mortality has elsewhere in the DPS; there is a greater areas within the NCSO DPS that are resulted in a 39 percent decline in fisher concentration or intensity of threats, experiencing the deleterious effects foraging and denning habitat in the SSN relative to the same threats seen associated with a small population size. elsewhere in the range; or there is a DPS in a period of 5 years (Thompson disproportionate response to the threats If both (1) a species is not in danger et al. 2019a, pp. 8–9). The remaining by the individuals in a portion of the of extinction or likely to become so in habitat is much more fragmented (74 range, relative to individuals in the the foreseeable future throughout all of habitat patches prior to the drought remainder of the range). its range and (2) the threats to the compared with 558 following the In our assessment of the NCSO DPS’s species are essentially uniform drought), and the average patch size of overall status, we evaluated throughout throughout its range, then the species remaining habitat for the SSN DPS is 92 its range all of the threats identified in cannot be in danger of extinction or percent smaller than prior to the 2012– our Species Report, including those likely to become so in the foreseeable 2015 drought (Thompson et al. 2019a, with the potential to become significant future in any biologically meaningful pp. 8–9). portion of the DPS. For the NCSO DPS, drivers of the DPS’s future status: High- The SSN DPS is found in Mariposa, we found both: The DPS is not in danger severity wildfire, wildfire suppression Madera, Fresno, Tulare, and Kern of extinction or likely to become so in activities, and post-fire management Counties in California. Historically, the the foreseeable future throughout its actions (Factor A); climate change SSN DPS likely extended farther north, (Factor A); tree mortality from drought, range, and there is no geographical concentration of threats within the DPS but may have contracted due to disease, and insect infestation (Factor unregulated trapping, predator-control A); vegetation management (Factor A); at a biologically meaningful scale, so the threats to the DPS are essentially efforts, habitat loss and fragmentation, exposure to toxicants (Factor E); and or climatic changes. Today the potential effects associated with small uniform throughout its range. Therefore, approximate northern boundary is the population size (Factor E). As we we determine, based on this screening Tuolumne River in Yosemite National conducted our threats analysis, we analysis, that no portions warrant Park (Mariposa County) and the determined that the most significant further consideration through a more drivers of the NCSO DPS’s future status detailed analysis, and the DPS is not in southern limit is the forested lands were: Wildfire and wildfire suppression, danger of extinction or likely to become abutting the Kern River Canyon, while and the potential for climate change to so in the foreseeable future in any the eastern limit is the high-elevation, exacerbate this threat, as well as the significant portion of its range. Our granite-dominated mountains, and the threats related to vegetation approach to analyzing significant western limit is the low-elevation extent management and exposure to toxicants. portions of the DPS’s range in this of mixed-conifer forest. Multiple lines of However, for the purposes of our SPR determination is consistent with the genetic evidence suggest that the analysis, we examined the entirety of court’s holding in Desert Survivors v. isolation of the SSN DPS from other the DPS to evaluate whether there may Department of the Interior, No. 16–cv– populations of native fishers to the be a geographic concentration of any of 01165–JCS, 2018 WL 4053447 (N.D. Cal. north in California is longstanding and the identified threats in any portion of Aug. 24, 2018); Center for Biological predates European settlement (Knaus et the range at a biologically meaningful Diversity v. Jewell, 248 F. Supp. 3d, 946, al. 2011, entire; Tucker et al. 2012, scale. 959 (D. Ariz. 2017); and Center for entire; Tucker 2015, pers. comm., pp. 1– We found no concentration of any of Biological Diversity v. Everson, 2020 WL 2). Ownership within the SSN DPS is these threats in any portion of the NCSO 437289 (D.D.C. Jan. 28, 2020). shown in Table 3 below.

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TABLE 3—LAND OWNERSHIP OR MANAGEMENT FOR THE SOUTHERN SIERRA NEVADA DISTINCT POPULATION SEGMENT OF FISHER

Percent Agency Acres of total

Bureau of Land Management ...... 916,152 9.8 Forest Service ...... 3,637,488 39.0 Bureau of Indian Affairs ...... 56,003 0.6 National Park Service ...... 1,337,482 14.4 State and Local ...... 42,123 0.5 Private ...... 3,099,276 33.3

Total Acres * ...... 9,318,596 100.0 * Acres and % may not sum due to rounding and because some other owners with less land are not included.

Estimates for the SSN DPS prior to the occupancy and survival across the range SSN DPS, the northern portion of the 2012–2015 drought range from a low of of the SSN DPS of fisher have changed Stanislaus National Forest is largely 100 to a high of 500 individuals in response to these changes in their unoccupied, with at least one confirmed (Lamberson et al. 2000, entire). A recent habitat. detection north of the Merced River in estimate of 256 female fishers was based Another study (the Sierra Nevada Yosemite National Park and the on habitat availability at the time Adaptive Management Project (SNAMP Stanislaus National Forest (Stock 2020, (Spencer et al. 2016, p. 44). Other Fisher Project)) of radio-collared fishers pers. comm.). The interaction of all the population estimates are: (1) 125–250 monitored from 2007 through 2014 in threats within the SSN DPS are likely adult fishers based on fisher carrying the northern portion of the SSN DPS on limiting northward expansion into what capacity in currently occupied areas 49 mi2 (128 km2) of the Sierra National is considered suitable habitat for fisher. (Spencer et al. 2011, p. 788); and (2) Forest showed the survival rate Fisher habitat is lacking landscape-scale fewer than 300 adult fishers or 276–359 (calculated using demographic forest heterogeneity in the SSN DPS fishers that include juveniles and parameters) of adult males, but not compared to historical conditions, with subadults based on extrapolation from females, is lower than sites in the NCSO wildfire and severe drought portions of the DPS where fishers have DPS. Specifically, Sweitzer et al. stated disturbances creating large patches of been intensely studied to the range of that their analysis ‘‘suggested slightly homogeneous habitat, a situation the entire population (Spencer et al. negative growth (l = 0.966) for the exacerbated by past logging practices 2011, pp. 801–802). These population period of the research. The upper range and wildfire suppression (Thompson et estimates pre-date the 2012–2015 for l (1.155) was well above 1.0, al. 2019a, p. 13). drought and subsequent habitat loss and however, suggesting stability or growth Recent habitat changes from drought, fragmentation; these drought-related in some years. The estimated range for wildfire, and associated tree mortality effects may have caused population l was consistent with the estimated are affecting many of the key declines since the population estimates population densities, which did not components of fisher habitat such as of the early 2000’s. indicate a persistent decline during 4 complex forest canopy structure and An 8-year monitoring study years from 2008–2009 to 2011–2012’’ connected closed-canopy forest throughout the SSN DPS sampled an (Sweitzer et al. 2015a pp. 781–783; conditions. Only preliminary analyses average of 139.5 units (range 90–189) Sweitzer et al. 2015b, p. 10). have been completed with updated comprising six baited track plate Additionally, the SNAMP Fisher Project vegetation information from 2016, stations per year during the period (later called Sugar Pine) was extended revealing that almost 40 percent 2002–2009 throughout the SSN DPS through 2017. They reanalyzed the data (reduction of 2.3 million acres to 1.4 showed no declining trend in for radio-collared fishers monitored million acres) of potential fisher occupancy (Zielinski et al. 2013, pp. 3– from 2007 through 2017 (totaling 139 foraging habitat has been lost to 4, 10–14; Tucker 2013, pp. 82, 86–91). collared fishers) and concluded the drought, insects and tree diseases, and Recent analyses conducted over a 14- population was stable with an estimated wildfire between 2014 and 2016 year period (2002–2015) showed that lambda of 0.99 (C.I. 0.826 to 1.104) (Thompson et al. 2019a, pp. 7–8). The occupancy rates in 2015 were not based on female fisher survival rates spatial configuration of fisher foraging statistically different from 2002, (Purcell et al. 2018, pp. 5–6, 17). These habitat also changed, with patch although rates dipped slightly from population estimates for the SSN DPS number increasing from 74 to 558 and 2005–2011 (Tucker 2019 pers. comm.). do not take into consideration the patch size declining from 31,500 ac Although occupancy patterns show no extensive tree mortality, habitat loss, (12,748 ha) to 2,600 ac (1,052 ha), declining trends, these analyses do not and fragmentation that has impacted indicating a significantly more provide details on demographic rates, habitat from 2015 to present. Research fragmented landscape (Thompson et al. such as survival and recruitment that is currently being conducted to 2019a, p. 8). Within the same affected provide more detailed information on determine any potential effects that tree area (i.e., not an additive loss), denning population growth rates, size, or status. mortality may have on fisher in the SSN habitat availability also declined by As with the population estimates DPS, but results are not yet available almost 40 percent and overall patch size described above, these patterns in (Green et al. 2019a, entire). declined from 3,169 ac (1,283 ha) to occupancy were calculated prior to the Extensive areas of suitable habitat 2,868 ac (1,161 ha) (Thompson et al. 2012–2015 drought and subsequent 39 within the SSN DPS remain unoccupied 2019a, p. 9). Current efforts are percent reduction in foraging and by fishers, suggesting that habitat may underway to incorporate the most recent denning habitat and associated habitat not be the only limiting factor for this and precise vegetation data into a full fragmentation. It is unknown how DPS (Spencer et al. 2015, p. 9). In the revision of the SSN Fisher Conservation

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Strategy in 2020 (Thompson 2020, pers. wildfires greater than 24,700 acres 2016b, pp. 208, 214, and 221–222). comm.). (9,996 (ha) (Westerling 2016, pp. 6–7). Results of modeling the variables of The major threats for the SSN DPS are Changes in future climate continue to forest structure important to fishers for loss and fragmentation of habitat predict large increases in the area denning habitat on the Sierra National resulting from climate change, high- burned by wildfire (Dettinger et al. Forest and Yosemite National Park severity wildfire and wildfire- 2018, p. 72). We expect these predicted suggest that suitable denning habitat is suppression activities, vegetation changes to the fire regime to further maintained in burned forests, though management, and forest insects and tree reduce the habitat available for fisher in primarily those with low-severity diseases, as well as direct impacts that the SSN DPS (see Climate Change wildfire conditions, as less than 5 include high mortality rates from section for further detail on future percent of areas burned at high severity predation, exposure to toxicants, and conditions). We recognize there are were associated with a high probability potential effects associated with small mixed findings as to whether current of fisher den presence (Blomdahl 2018, population size. Potential conservation conditions are outside of the natural entire). Thus, forests that burn at lower measures are discussed in more detail in range of variation and wildfire severity fire intensities can create important Voluntary Conservation Mechanisms is increasing (Mallek et al. 2013, pp. 11– below, and include the development of 17; Stephens et al. 2015, pp. 12–16; habitat elements for fisher (e.g., den the Southern Sierra Nevada Fisher Hanson and Odion 2016, pp. 12–17; trees) within a home range such that the Conservation Strategy (Spencer et al. Odion et al. 2016, entire; Spies et al. burned habitat may continue to support 2016, entire) and the associated interim 2018, p. 140), but the scientific both fisher foraging and reproduction. guidelines that consider the recent tree consensus accepts that mixed conifer Fisher avoided areas affected by high- mortality (Thompson et al. 2019a, forests were characterized by areas and moderate-severity wildfires in the entire). burned at low, moderate, and high French (2014) and Aspen Fires (2013), Threats severity, with higher proportions of low and there was a higher probability of severity prior to European settlement finding fishers in ravines or canyon Potential threats currently acting than is currently being observed on the bottoms in combination with unburned upon the SSN DPS of fisher or likely to landscape (Safford and Stevens 2017, or lightly burned patches (Thompson et affect the species in the future are pp. 48–50). al. 2019a, pp. 13–14). In our final evaluated and addressed in the final Recent analyses show habitat loss Species Report (Service 2016, pp. 53– Species Report we reported fisher use of from high-severity fire throughout the areas affected by high-severity fire 162). Our most recent consideration of SSN DPS (Thompson et al. 2019a, p. (Hanson 2015, p. 500; Service 2016, p. new data since 2016 coupled with our 10). For this new analysis of effects of 66), so results from these studies may reevaluation of the entirety of the best wildfire on fisher habitat in the available scientific and commercial southern Sierra Nevada, high-severity- differ due to the type of analysis used, information (including comments and fire data was analyzed from 2003 to the values chosen to identify wildfire information received during the two 2017 (CBI 2019a, pp. 26–28) and severity classes, or the 2–4 year v. 10- comment periods associated with the showed a loss of fisher denning (8.5 year post-wildfire sampling period 2019 Revised Proposed Rule) is percent), resting (9.3 percent), and (Thompson et al. 2019a, pp. 15–18). represented and summarized here. foraging (7.6 percent) habitat of Without demographic data on age class, As we conducted our threats analysis, approximately 25 percent, with most of survival, or reproduction, it is difficult we determined that the most significant the loss occurring between 2013 and to say with certainty whether fisher use drivers of the species’ future status 2017 (approximately 22 percent) (CBI of post-wildfire landscapes is for were: Wildfire and wildfire suppression, 2019a, p. 28). However, some areas of dispersal or whether such areas act as tree mortality from drought, disease, denning, resting, and foraging habitat population sinks (Thompson et al. and insect infestation, and the potential overlap each other, so the total amount 2019a, pp. 17–18). for climate change to exacerbate both of of habitat lost to high-severity fire is As stated above, wildfire has already these threats, as well as the threats likely less than 25 percent. In addition, resulted in habitat loss and is increasing related to vegetation management, the wildfires occurring on the Sierra and in terms of frequency, severity, and exposure to toxicants, disease or Sequoia National Forests bisected and magnitude in the Sierra Nevada. We predation, collisions with vehicles, and disrupted connectivity between—or conclude that if the severity and extent the potential for effects from small reduced the overall size of—key core of wildfires are such that substantial population size. While our assessment areas as identified in the SSN fisher areas of canopy and large trees are lost, of the species’ status was based on the conservation strategy, likely inhibiting multiple decades of forest growth and cumulative impact of all identified northward population expansion structural development are necessary for threats, as explained above, we are only (Spencer et al. 2016, p. 10; CBI 2019a, those burned areas to support fisher presenting our analyses on these pp. 26–28). It is uncertain how fishers reproduction. Therefore, based on the specific primary threat drivers for the are using this changed landscape. research and data currently available (as purposes of this final rule. For detailed Prior to these substantial habitat analyses of all the other individual changes as a result of recent fire, fishers described above and in Service 2014, p. threats, we refer the reader to the persisted in burned landscapes 64; Sequoia Forest Keeper 2019, pers. Species Report (Service 2016, entire). characterized by lower fire severities comm.; Spencer et al. 2016, p. 10), large that maintained habitat elements high-severity fires that kill trees and Wildfire and Wildfire Suppression important to fisher. For example, the significantly reduce canopy cover in Wildfire is a natural ecological northern portion of the SSN DPS had fisher habitat (of high and intermediate process in the range of the SSN DPS; lower fisher occupancy in units burned quality) are likely to negatively affect however, the mean proportion of high- by either prescribed burning or wildfire fisher occupancy and reproduction. The severity fire and patch size has shifted but less than 1 percent of the study area degree to which wildfire affects fisher compared to historical conditions burned; however, there was no populations depends on the forest type, (Safford and Stevens 2017, p. viii.) with consistent negative effect of fire on landscape location, patch configuration, increases in the frequency of large fisher’s use of habitat (Sweitzer et al. size, and intensity of the wildfire.

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Climate Change Tree Mortality From Drought, Disease, because USFS personnel are already and Insect Infestation reporting snag failures, indicating these In the Sierra Nevada region, mean The recent drought and subsequent snags may fall at a faster rate than other annual temperatures have generally beetle outbreak in the Southern Sierra methods of snag creation (e.g., wind, increased by around 1 to 2.5 degrees °F fire, age; Larvie et al. 2019, p. 11). ° Nevada from 2012 to 2015 is one of the (0.5 to 1.4 C) over the past 75–100 years most severe and largest beetle outbreaks Further, large, area-wide epidemics of (Safford et al. 2012, p. 25). By the end in recent decades (Fettig et al. 2019, p. forest disease and insect outbreaks may of the 21st century, temperatures are 176). Over half of the potential fisher displace fishers if canopy cover is lost projected to warm within the SSN DPS habitat in the SSN DPS has been and salvage and thinning prescriptions ° ° by 6 to 9 F (3.3 to 5 C) on average, significantly impacted by canopy loss in response to outbreaks degrade the enough to raise the transition from snow from tree mortality, which is habitat (Naney et al. 2012, p. 36; Tucker to rain during a storm by about 1,500 to disproportionately affecting the largest 2019, pers. comm.). Preliminary information in the SSN 3,000 ft (457 to 914 m) (Dettinger et al. conifer trees and which are most likely DPS indicates fishers are avoiding areas 2018, p. 5). In addition, California to serve as den or rest trees for fisher with tree mortality and are more likely recently experienced extreme drought (CBI 2019a, pp. 3–9, 29; Fettig et al. to be found in areas close to streams, conditions due to lack of precipitation 2019, pp. 167–168). Although fisher drainages, and ravines where tree in the periods 2007–2009 and 2012– often use hardwoods for denning and mortality effects were dampened (Green 2014 (Williams et al. 2015, pp. 6,823– resting, conifers appear to be more et al. 2019a, entire). In addition, 6,824). Climate change likely important for denning and resting in the increased tree mortality on the contributed to the 2012–2014 drought SSN DPS than other fisher populations, landscape may be associated with anomaly and increases the overall and overall den-tree size is much larger reduced female fisher survival within likelihood of drier conditions, including than other portions of the fisher range, the SSN population due to increased extreme droughts, within the SSN DPS so the loss of large trees has the stress hormones (cortisol) (Kordosky into the future (Williams et al. 2015, pp. potential to disproportionately alter den 2019, pp. 31–34, 36–40, 54–61, 65–68, 6,819, 6,826; Bedsworth et al. 2018, p. availability in the landscape (Green et 94); however, reduced fisher survival is 25). al. 2019c, p. 139). Drought effects on also likely influenced by other factors. more than 6 million hectares of forest in The observed increases in wildfire Although other studies indicate fishers California occurred over a multiyear activity and tree mortality in the SSN tolerate certain levels of canopy loss in period from 2011 through 2015, and DPS are partially due to climate change. small-scale projects, fisher response to more than 500 million large trees have The red fir forests in the SSN DPS, tree mortality may have been influenced been affected, primarily from canopy by the large scale of the tree-mortality currently found at the upper edge of water content loss, with some of the fisher elevation range, are expected to event (Thompson et al. 2019a, p. 16). largest impacts to forested areas within Loss of canopy cover and large trees have more frequent fire with species the range of the SSN DPS (Asner et al. composition shifting to more fire-prone from tree mortality caused by insects 2016, p. E252). These trees, spread over and tree diseases likely reduces habitat species, but it is unclear whether these millions of hectares of forest, are more suitability for fishers, but it is unknown forests will become more central to the vulnerable in future droughts, likely if the level of habitat loss will range of fisher with warming climate resulting in death and altering future significantly impact the SSN DPS conditions or if it will remain on the forest structure, composition, and throughout its range. Although fishers elevation edge of the SSN DPS (Restaino function (Asner et al. 2016, p. E253; are using riparian areas with intact and Safford 2018, p. 497; Service 2016, Fettig et al. 2019, p. 176). forest canopy, it is uncertain how pp. 87, 138–139). Climate change will Limited information is available on patches with sufficient canopy cover are likely continue to increase tree- the direct impacts to fisher from tree connected in this changing landscape. It mortality events into the future because mortality; however, the combination of is likely that tree mortality will continue drought conditions will increase, which drought, forest insects, disease, and fire to be a threat into the future due to will continue to weaken trees and make has led to a 39 percent decrease in predicted increases in drought them susceptible to bark beetles and available foraging and denning habitat conditions that will likely continue to disease (Millar and Stephenson 2015, along with a substantial increase in weaken trees and make them pp. 823–826; Young et al. 2017, pp. 78, habitat fragmentation and 92 percent susceptible to bark beetles and disease 85). reduction in average habitat patch size. (Millar and Stephenson 2015, pp. 823– Both of these effects occurred over a Overall, at this time, the best available 826; Young et al. 2017, pp. 78, 85); period of approximately 5 years scientific and commercial information therefore, we expect continued loss and (Thompson et al. 2019b, pp. 8–9). The fragmentation of remaining habitat suggests that changing climate habitat changes associated with drought, conditions (particularly increasing air across the range of the SSN DPS of forest insects, disease, and fire may fisher. temperatures coupled with prolonged result in increased use of areas by large and more frequent drought conditions) predators that in turn could increase Vegetation Management are exacerbating other threats to the predation rates on fisher (Thompson et In the SSN DPS, we approximated fishers and their habitat within the SSN al. 2019b, p. 15; also see Predation and fisher habitat change using a vegetation DPS, including high-severity wildfires, Disease, above in the General Species trend analysis to track changes in forests and tree mortality. Please see additional Information and Summary of Threats with large structural conditions thought discussion about potential impacts to section, above). The usual patterns of to be associated with fisher habitat fishers or their habitat associated with localized outbreaks and low density of (Service 2016, pp. 98–101). Available wildfire (Wildfire and Wildfire tree-consuming insects and tree diseases data limited us to using predefined Suppression section, above) and tree are beneficial and can create snags, structure conditions describing forests mortality (Tree Mortality from Drought, providing structures conducive to rest with larger trees (greater than 20 in (50 Disease, and Insect Infestation section, and den site use by fishers or their prey. cm)), although we realize this sample below). The large-scale beetle kill is concerning may not include all vegetation types

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used by fishers. This analysis showed vegetation management effects to fisher as other agricultural, commercial, and that net loss of forests with larger will depend on the spatial distribution public land sites within the range of the structural conditions in the SSN DPS of the activities and whether structural SSN DPS of fisher (and habitats that from 1993 to 2012 was 6.2 percent elements important to fishers are fishers select for) is unknown. across all ownerships, which equates to maintained. Although vegetation At this time, our evaluation of the best a loss of 3.1 percent per decade. management may threaten fisher now available scientific and commercial In the single analysis where fisher and in the foreseeable future, many of information regarding toxicants and habitat was actually modeled and the effects are likely exacerbated by their effects on fishers leads us to tracked through time for the SSN DPS, other forms of habitat loss such as tree conclude that individual fishers within ingrowth of fisher habitat replaced mortality from drought and severe the SSN DPS have died from toxicant habitat lost by all disturbances between wildfires. exposure. Data indicate a total of 19 1990 and 2012, showing a net increase mortalities specifically within the in fisher habitat at the female-home- Exposure to Toxicants monitored fisher populations (in both range scale, albeit this net increase is As described above in the general NCSO and SSN DPSs in California) have less than 8 percent over 30 years threats section, rodenticides analyzed as been directly caused by toxicant (Spencer et al. 2016, pp. 44, A–21, A– a threat to the SSN DPS of fishers exposure (Gabriel and Wengert 2019, 26). However, the authors of this report include first- and second-generation unpublished data, p. 5). We view have since cautioned that these anticoagulant rodenticides and toxicants as a potentially significant conclusions may no longer be accurate neurotoxicant rodenticides. Both the threat given the small population size of based on the ‘‘dramatic changes [that] draft and final Species Reports detail the SSN DPS fishers because of the have occurred in Sierra Nevada mixed the exposure of the SSN DPS of fishers reported exposure rate of toxicants in conifer forests due to drought and to rodenticides in the Sierra Nevada the SSN DPS, reported mortalities of extraordinary tree mortality’’ from the (Service 2014, pp. 149–166; Service SSN DPS fishers from toxicants, the 2012–2015 drought (Spencer et al. 2017, 2016, pp. 141–159). Data available since variety of potential sublethal effects due p. 1). Consequently, they recommended the completion of the final Species to exposure to rodenticides (including delaying application of habitat- Report in 2016 continue to document potential reduced ability to capture prey conservation targets until vegetation exposure and mortalities to fishers from and avoid predators), and the degree to data can be updated and fisher habitat rodenticides in the SSN DPS (Gabriel which illegal grow sites overlap with condition reassessed (Spencer et al. and Wengert 2019, unpublished data, the range and habitat of the SSN DPS of 2017, pp. 1–2). Hence, although our entire). Data for 97 fisher carcasses fisher. earlier analysis concluded that fisher collected in the range of SSN DPS in the The effect of these impacts to the SSN habitat in the SSN DPS may be period 2007–2018 indicate 83 fishers DPS is of particular concern because of increasing, we can no longer support (86 percent) tested positive for one or the small number of individuals in the that conclusion based on recent tree more rodenticides (Gabriel and Wengert SSN DPS. The exposure rate of more mortality. 2019, unpublished data), while 5.2 than 80 percent of fisher carcasses Vegetation management that percent of known-cause SSN DPS fisher tested in the SSN DPS has not declined maintains structural complexity and deaths from 2007 through 2014 were between 2007 and 2018 (Gabriel and canopy cover that reflect pretreatment attributable to rodenticide toxicosis (6 of Wengert 2019, unpublished data, pp. 3– conditions may only have a minor 115 total known-cause mortalities) 4), while toxicosis has increased since impact on fisher use of these habitats (Gabriel et al 2015, p. 6). The probability 2007 (Gabriel et al. 2015, pp. 6–7). We (Purcell et al. 2018, p. 60). Overall, of fisher mortality increases with the do not know the exposure rate of live vegetation management may result in number of anticoagulant rodenticides to fishers to toxicants because this data is short-term avoidance of fuels reduction which a fisher has been exposed difficult to collect. The minimum treatments, with no longer term shift in (Gabriel et al. 2015, p. 15). Using data amount of anticoagulant and fisher behavior, but likely depends on from both the SSN DPS and the NCSO neurotoxicant rodenticides required for the amount treated each year (Purcell et DPS comparing the periods 2007–2011 sublethal or lethal poisoning of fishers al. 2018, p. 69). and 2012–2014, mortalities due to is currently unknown; however, we On all ownerships combined, loss of rodenticide toxicosis increased from 5.6 have evidence of fisher mortality and forest with old-forest structures in the to 18.7 percent (Gabriel and Wengert sublethal effects as a result of past two decades (1993–2012) was 3.1 2019, unpublished data, p. 2). From rodenticides. Although uncertainty percent per decade as a result of all 2015 to 2018, additional SSN DPS fisher exists in the effect of toxicants on a disturbance types within the SSN DPS. mortalities due to both anticoagulant small population such as the SSN DPS Additionally, fisher habitat appeared to and neurotoxicant rodenticides have of fisher, the lethal and sublethal effects be increasing until recent (2012–2015) been documented (Gabriel and Wengert of toxicants on individuals have the tree mortality due to fires and drought. 2019, unpublished data, p. 4). potential to have population-level However, it is difficult to conclude the In order to evaluate the risk to SSN effects and reduce the resiliency of the degree to which vegetation management DPS fishers from illegal grow sites, we DPS as a whole. Overall, rodenticides threatens fishers in the SSN DPS. Given use a Maximum Entropy model that was are a threat to fisher within the SSN the large home range of fishers and the developed to identify high and DPS now and in the foreseeable future. geographic extent of forest-management moderate likelihood of illegal grow sites activities throughout the range of the within habitat selected for by fisher Potential for Effects Associated With SSN DPS, some fisher individuals are (Gabriel and Wengert 2019, unpublished Small Population Size likely affected as a result of habitat data, pp. 7–10). This model indicates The SSN DPS exhibits the following impacts (e.g., Purcell et al. 2018, pp. 60– that 22 percent of habitat modeled for attributes related to small population 61). In addition, still other factors SSN DPS fishers is within areas of high size, to varying degrees, which may unrelated to habitat may be limiting and moderate likelihood for marijuana affect its distribution and population fisher distribution. Consequently, based cultivation. The extent to which the use growth: on the best available scientific and of toxicants occurs on legal private land (1) Loss of large contiguous areas of commercial information, we find that grow sites within the SSN DPS, as well historical habitat, including a 39 percent

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loss of foraging and denning habitat likely to remain small or be reduced Information and Summary of Threats, over the past 5 years (Thompson et al. even further into the future, primarily above). Specific to the SSN DPS, of 94 2019b, p. 9), in combination with given the other stressors that have the fisher mortalities analyzed, 71 percent restriction of the species to forested potential to exacerbate the impacts from were a result of predation and 14 habitats that have been lost or modified threats on small populations. In percent were caused by disease (Gabriel due to timber-harvest practices; large, addition, average litter size for the SSN et al. 2015, p. 7, Table 2). Further, high-severity wildfires whose frequency DPS is the lowest reported for the predation may be one of the limiting and intensity are in turn influenced by species, potentially due to diet factors in overall population growth for the effects of climate change; and limitations, smaller body size, and fishers in the SSN DPS. For example, increasing forest fuel density from fire lower genetic diversity compared to research on effects of mortalities on suppression and a lack of low-severity other populations (Green et al. 2018a, population growth of fishers in the SSN fire over the recent long term. pp. 545, 547). Estimates of fisher DPS found that reducing predation by (2) Dependence on specific elements population growth rates for the SSN 25 or 50 percent would increase lambda of forest structure that may be limited DPS do not indicate any overall positive from 0.96 to 1.03 or 1.11, respectively; on the landscape, including microsites or negative trend. conversely, removing all mortality for denning and resting. Population estimates for the SSN DPS sources but predation would only (3) Susceptibility to injury or of fisher prior to recent fires, drought increase lambda to 0.97 (Sweitzer et al mortality due to predation from co- and tree mortality and subsequent 39 2016a, p. 438). While we did not occurring larger predators. percent loss of foraging and denning consider this threat as a potentially Each of these vulnerabilities may habitat range anywhere in size from 100 significant driver of future status in the separately, or together, influence the to 500 individuals (Service 2016, pp. 2019 Revised Proposed Rule, the magnitude of other threats described in 48–50). Population-growth-rate analyses information we received during a public this analysis for the SSN DPS of fisher. have been estimated as 0.97 (C.I. 0.79– comment period providing updated Some information is available that 1.16) from 2007 through 2014 information on mortalities associated demonstrates fisher’s vulnerability to throughout the SSN DPS (Sweitzer et al. with these factors (i.e., Sweitzer et al small-population effects in the SSN 2015a, p. 784), and more recently 0.99 2016a, p. 438), indicated that predation DPS, including overall low genetic (C.I. 0.826 to 1.104) from 2007 through may be, in fact, be a potentially diversity (mitochondrial DNA haplotype 2017 in a small portion of the SSN DPS and nuclear DNA allelic richness) for significant driver of future status for the at Sugar Pine (Purcell et al. 2018, pp. 5– SSN DPS. the entire SSN DPS, limited gene flow, 6, 17). Available population estimates and existing barriers to dispersal and trend information for the SSN DPS Vehicle Collisions (Wisely et al. 2004, pp. 642–643; Knaus do not take into consideration extensive In the SSN DPS, vehicle collisions et al. 2011, p. 7; see also additional tree mortality that has impacted the contributed to 8 percent of documented discussion in Service 2016, pp. 134– habitat from 2015 to present. Research causes of mortality for fishers (Sweitzer 137; Tucker et al. 2014, pp. 131–134), is currently being conducted to et al. 2016a, p. 438). At the albeit some of these barriers allow some determine any potential effects that tree northernmost boundary of the SSN DPS, gene flow (Tucker et al. 2014, p. 131). mortality may be having on the SSN 10 fisher roadkill mortalities have been However, the recent tree mortality and DPS, but results are not yet available documented in Yosemite National Park several recent large-scale fires acting on (Green et al. 2019a, entire). At this point the narrow, linear range of the SSN DPS over the past two decades (Service 2016, in time, we do not have sufficient p. 137). Although many factors affect have resulted in substantial habitat information to predict whether fragmentation and reduction in habitat dispersal and northward population population trends of the SSN DPS will expansion, it is likely that roads and patch size (Thompson et al. 2019b, pp. be positive or negative into the 8–9) and are likely to increase barriers associated traffic in Yosemite National foreseeable future; however, we Park combined with other stressors may to dispersal, potentially limiting anticipate continued loss and movement among habitat patches and inhibit northward expansion of the SSN fragmentation of fisher habitat. DPS (Spencer et al. 2015, p. 21). preventing northward expansion, Overall, a species (or DPS) with particularly for females, given female relatively few individuals may be of Existing Regulatory Mechanisms dispersal and associated genetic concern when there are significant U.S. Forest Service (USFS) connectivity is facilitated by dense threats to the species. The SSN DPS is forest habitat (Tucker et al. 2017, p. 10). considered relatively small and has not The USFS is the landowner for At this point in time, the SSN DPS is appeared to grow or expand, despite the approximately 39 percent of the SSN considered relatively small, especially availability of unoccupied suitable DPS. A number of Federal agency when taking into account the original/ habitat. The SSN DPS has been found to regulatory mechanisms pertain to historical range of the species within the have relatively low genetic diversity, management of fisher (and other species West Coast States, and the population but there is currently no evidence of and habitat). Most Federal activities growth rates do not indicate that the inbreeding depression. The small must comply with the National SSN DPS is increasing. The recent post- population may make the SSN DPS Environmental Policy Act of 1969, as drought declines in foraging and more vulnerable to threats, but there is amended (NEPA) (42 U.S.C. 4321 et denning habitat and associated habitat no evidence at this time that small seq.). NEPA requires Federal agencies to fragmentation further isolate the SSN populations are causing impacts such as formally document, consider, and DPS from other fishers and limit the loss of genetic variability or large publicly disclose the environmental opportunities for movement among fluctuations in demographic parameters impacts of major Federal actions and remaining patches within the range of of the SSN DPS. management decisions significantly the SSN DPS. The best available affecting the human environment. NEPA information suggests the SSN DPS is Disease and Predation does not regulate or protect fishers, but expected to remain isolated from other A general description of disease and it requires full evaluation and disclosure fishers (as has been apparent since pre- predation on fishers overall was of the effects of Federal actions on the European settlement). The SSN DPS is provided earlier (see General Species environment. Other Federal regulations

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affecting fishers are the Multiple-Use specific measures to protect fishers, but April 20, 2016 (CFGC 2016, p. 10); thus, Sustained Yield Act of 1960, as areas not developed specifically for take as defined under CESA continues amended (16 U.S.C. 528 et seq.) and the recreation and camping are managed to be prohibited. It remains illegal to National Forest Management Act of toward natural processes and species intentionally trap fishers in all of 1976, as amended (NFMA) (90 Stat. composition and are expected to California (Cal. Code Regs. title 14, § 460 2949 et seq.; 16 U.S.C. 1601 et seq.). maintain fisher habitat where it is (2017). The NFMA specifies that the USFS present. The California Environmental Quality must have a land and resource Act (CEQA) can provide protections for management plan to guide and set Rodenticide Regulatory Mechanisms a species that meets one of several standards for all natural resource The threats posed to fishers from the criteria for rarity (CEQA 15380). Fishers management activities on each National use of rodenticides are described under in the SSN DPS meet these criteria, and Forest or National Grassland. Exposure to Toxicants, above. In the under CEQA, a lead agency can require Additionally, the fisher in the SSN DPS 2016 final Species Report (Service 2016, that adverse impacts be avoided, has been identified as a species of pp. 187–189), we analyzed whether minimized, or mitigated for projects conservation concern by the USFS; thus, existing regulatory mechanisms are able subject to CEQA review that may impact all Forest Plans within the DPS include to address the potential threats to fishers fisher habitat. All non-Federal forests in standards and guidelines designed to posed from both legal and illegal use of California are governed by the State’s benefit fisher. Overall, per USFS rodenticides. As described in the 2016 FPRs under the Z’Berg Nejedly Forest guidelines under the NFMA, planning final Species Report, the use of Practice Act of 1973, a set of regulations rules must consider the maintenance of rodenticides is regulated by several and policies designed to maintain the viable populations of species of Federal and State mechanisms (e.g., economic viability of the State’s forest conservation concern. Federal Insecticide, Fungicide, and products industry while preventing In 2004 the USFS amended the Forest Rodenticide Act of 1947, as amended, environmental degradation. The FPRs Plans in the SSN DPS with the Sierra (FIFRA) 7 U.S.C. 136, et seq.; California do not contain rules specific to fishers, Nevada Forest Plan Amendment (USFS Final Regulation Designating but they may provide some protection of 2004, entire). The Sierra Nevada Forest Brodifacoum, Bromadiolone, fisher habitat as a result of timber Plan Amendment included measures to Difenacoum, and Difethialone (Second harvest restrictions. increase late-successional forest, retain Generation Anticoagulant Rodenticide Voluntary Conservation Mechanisms important wildlife structures such as Products) as Restricted Materials, large-diameter snags and coarse downed California Department of Pesticide There are currently two MOU wood, and manage about 40 percent of Regulation, 2014). The primary agreements in California within the range of the SSN DPS for wildfire and the plan area as old-forest emphasis regulatory issue for fishers with respect fuels management. The first MOU was areas. The Sierra Nevada Forest Plan to rodenticides is the availability of signed in 2015 by Sierra Forest Legacy, Amendment also established a 602,100– large quantities of rodenticides that can California Department of Forestry and ha (1,487,800–ac) Southern Sierra be purchased under the guise of legal Fire Protection, State of California Sierra Fisher Conservation Area with uses, but are then used illegally in Nevada Conservancy, The Wilderness additional requirements intended to marijuana grows within fisher habitat. Society, The Nature Conservancy, The maintain and expand the fisher Both the EPA and California’s Sierra Club, Center for Biological population of the southern Sierra Department of Pesticide Regulation Diversity, DOI–NPS–Pacific Region, Nevada. Conservation measures for the developed an effort to reduce the risk Southern Sierra Fisher Conservation Northern California Prescribed Fire posed by the availability of second- Council, Southern Sierra Prescribed Fire Area include maintaining a minimum of generation anticoagulants to end-users, 50 percent of each watershed in mid-to- Council, and the USDA–USFS–Pacific through the 2008 Risk Mitigation late- successional forest (28-cm [11-in] Southwest Region. The MOU is titled Decision for Ten Rodenticides (EPA diameter at breast height (dbh) and ‘‘Cooperating for the purpose of 2008, entire). This effort issued new greater) with forest-canopy closure of 60 increasing the use of fire to meet legal requirements for the labeling, percent or more. The plan also includes ecological and other management packaging, and sale of second- seasonal protections for known fisher objectives.’’ The purpose of this MOU is generation anticoagulants, and through natal and maternal den sites. The USFS to document the cooperation between a rule effective in July 2014, restricted is currently updating the National the parties to increase the use of fire to access to second-generation Forest Management Plans (NFMPs) meet ecological and other management anticoagulants (California Food and within the SSN DPS according to the objectives. A second MOU was signed Agricultural Code Section 12978.7). Forest Service 2012 Planning Rule (36 in 2017 by the National Fish and CFR part 219). A conservation strategy State Regulatory Mechanisms Wildlife Foundation and the USFS– Pacific Southwest Region–Regional is in progress (described below in SSN California Voluntary Conservation Measures) that Office. The MOU is titled ‘‘Pacific will provide fisher specific guidance for At the time of the 2014 Proposed Southwest Fuels Management Strategic the updated NFMPs. Rule, fishers were a Candidate Species Investment Partnership.’’ The purpose in California; thus, take (under the of this agreement is to document the National Park Service CESA definition) was prohibited during cooperation between the parties to The NPS is the land manager for the candidacy period. On June 10, 2015, implement a hazardous-fuels- approximately 14 percent of the SSN CDFW submitted its status review of the management program that reduces the DPS. Statutory direction for the NPS fisher to the CFGC, indicating that risk of severe wildfire, protects lands within the SSN DPS is provided listing of the fisher in the Southern ecological values, and reduces the by provisions of the National Park Sierra Nevada Evolutionarily Significant chance of damage to public and private Service Organic Act of 1916, as Unit (ESU) as threatened was warranted improvements. While neither MOU amended (54 U.S.C. 100101). Land (CDFW 2015, entire). CDFW made their contains specific fisher conservation management plans for the National final determination to list the Southern activities, projects that reduce the Parks within California do not contain Sierra Nevada ESU as threatened on likelihood of catastrophic wildfire

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provide benefit to fisher by reducing component of resiliency is lower than essential life-history functions; (b) habitat loss. Both of these fuel-reduction historical levels because the total contribute to increased stress hormones MOUs provide collaboration between population size is small and fragmented (cortisol) and reduced female fisher Federal partners and non-governmental and has been reduced in distribution survival (as noted in one study in a partners to organize and fund fuel- relative to historical levels. While there portion of the SSN DPS); and (c) reduction projects within the SSN DPS, is some evidence that the SSN DPS of increase habitat fragmentation within which could reduce the impact of large- fishers may have persisted for some and between populations. The recent scale high-severity fire. So far, no time at relatively low numbers, the DPS 2012–2015 drought and associated tree projects have been funded within the has recently experienced a 39 percent mortality and wildfire demonstrated SSN DPS. loss of foraging and denning habitat, a that this suite of threats can act rapidly The Sierra Nevada Fisher Working substantial increase in habitat to reduce and fragment fisher habitat Group, which includes CBI, Sierra fragmentation, and a 92 percent across the range of the DPS. Nevada Conservancy, USDA–USFS, reduction in habitat patch size following (2) The sustained presence of NPS, the Service, and CDFW, completed the 2012–2015 drought (Thompson et al. toxicants from marijuana grow sites a conservation strategy in 2016 (Spencer 2019a pp. 8–9). These negative effects across a likely significant proportion of et al. 2016, entire). The authors of the on fisher habitat have likely had the landscape that contribute to conservation strategy later released a additional cascading effects on numbers continued fisher mortalities and changed-circumstances letter due to of individuals through reduction in sublethal effects. Fisher mortalities new tree-mortality information (Spencer habitat, potential increases in predator continue to occur either by direct et al. 2017, entire). The changed- abundance, and decreases in consumption or sublethal exposure to circumstances letter provides details on connectivity across the range of the anticoagulant rodenticides, the latter of the conservation measures that may no DPS. which may increase fisher death rates longer be applicable and an interim Threats acting on a species or DPS from other impacts such as predation, process for designing and evaluating that cause losses of individuals from a disease, or intraspecific conflict. In a vegetation-management projects. population have the potential to affect small population, such as the SSN DPS Current benefits that still exist for fisher the overall resiliency of that population, of fisher, the lethal and sublethal effects from the conservation strategy and the and losses occurring at a scale large of toxicants on individuals have greater changed-circumstances letter include enough that the overall population size potential to reduce the resiliency of the long-term desired conditions and growth rate are negatively impacted population. representing a range of characteristics to could reduce the population’s ability to (3) Continued fragmentation of habitat strive for in various areas to inform fine- withstand stochastic events. The SSN in conjunction with the isolation and scale assessment of key fisher habitat DPS exists in low numbers across its potential inbreeding of the SSN DPS, elements, including their connectivity range and faces a variety of ongoing especially when taking into account the within potential home ranges and across threats that will result in losses of threats of toxicant exposure and habitat the landscape (Spencer et al. 2017, pp. individual fishers or impede population losses. These ongoing threats increase 2–6). A revised/final conservation growth, including continued loss and this DPS’s vulnerability to extinction strategy that addresses the new tree- fragmentation of habitat (i.e., from high- from stochastic events particularly as mortality information is still in progress severity wildfire and wildfire- fragmentation continues to reduce by the CBI. However, preliminary Draft suppression actions, climate change, habitat patch size and limit connectivity Interim Recommendations from tree mortality from drought, disease, across the landscape. Regardless of this December 2019 recognize the and insect infestation, vegetation DPS’s potential for growth into the importance of stabilizing key habitat, management, and development) and small amount of available but restoring landscape permeability, and potential direct impacts to individuals unoccupied suitable habitat present, we promoting landscape heterogeneity (e.g., increased mortality, decreased do anticipate this DPS will be small into while offering a suite of suggestions to reproductive rates, increased stress/ the long-term future and is at risk of mitigate potential negative effects of hormone levels, alterations in future reductions in population size due management actions (Thompson et al. behavioral patterns) from wildfire, to continued habitat loss from drought, 2019b, pp. 17–33). increased temperatures, increased tree wildfire, and tree mortality into the mortality, disease and predation, future (see also Service 2016, pp. 133– Resiliency, Redundancy, and exposure to toxicants, vehicle collisions, 137). Comments received on the 2014 Representation and potential effects associated with Proposed Rule and 2019 Revised In this section, we use the small population size. These present Proposed Rule generally agree that the conservation biology principles of and ongoing threats cumulatively play a SSN DPS is small. resiliency, redundancy, and large role in both the current and future The SSN DPS of fisher has maintained representation to evaluate how the resiliency of the DPS. Of greatest its presence across its current range threats, regulatory mechanisms, and importance at this time are: despite the degree of habitat loss and conservation measures identified above (1) The long-term suitability of habitat fragmentation from prolonged drought relate to the current and future conditions throughout the range of the conditions and wildfire impacts, condition of the SSN DPS. SSN DPS given the continued presence/ coupled with mortalities from toxicants As noted above, the resiliency of extent of high-severity and wide-ranging (both anticoagulant and neurotoxicant species’ population(s), and hence an wildfires and prolonged drought rodenticides), and at least some reduced assessment of the species’ overall conditions that exacerbate tree mortality female survival associated with resiliency, can be evaluated by from drought, disease, and insect increased stress hormones and reduced population size and growth rate. While infestation. These conditions: (a) habitat suitability documented in a data on these parameters is often not Reduce the availability of the natural portion of the SSN DPS (see Tree readily available, inferences about resources (e.g., appropriate canopy Mortality from Drought, Disease, and resiliency may be drawn from other cover, old-growth forest structure with Insect Infestation, above). However, the demographic measures. In the case of large trees and snags, patch size) that long-term demographic effects of the the SSN DPS, the population size the species relies on to complete its large-scale loss of habitat and increase

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in habitat fragmentation following the factors and catastrophic events (extreme final Species Report (Service 2016, 2012–2015 drought are not yet drought, wildfire, Allee effects, etc.). entire) is the most recent detailed understood. Historical reductions in Lastly, we consider the current compilation of fisher ecology and life range in combination with recent range- representation across the SSN DPS of history, and it has a significant amount wide habitat loss and fragmentation fisher to be limited, considering the of analysis related to the potential along with other ongoing threats such as DPS’s existence as only a single impacts of threats within the SSN DPS’s exposure to toxicants indicate that the fragmented population with low genetic range. In addition, we collected and current resiliency of the SSN DPS of diversity. The SSN DPS exists in a evaluated new information available fishers may be quite low. The best limited range of environmental since 2016, including new information available science and information at this conditions and has narrow made available to us during the recent time indicate that the current resiliency representation in the environments that comment periods in 2019, to ensure a of the SSN DPS of fisher is low and it it occupies. An additional concern for thorough analysis, as discussed above. is likely that resiliency of this DPS will current and future representation in the Our analysis as reflected in this rule SSN DPS of fisher is that fragmented decrease further in the near-term future. included our reassessment of the populations can be more susceptible to This conclusion is based on the 39 previous information and comments local declines, contributing further to received on the 2014 Proposed Rule percent loss of foraging and denning loss of genetic diversity. As future regarding the potential impacts to the habitat along with 92 percent decrease droughts, wildfire, and tree mortality SSN DPS of fisher, as well as our in habitat patch size that has occurred continue to fragment remaining fisher consideration of new information across the range of the SSN DPS of habitat, the opportunity for loss of regarding the past, present, and future fisher in the past 5 years and likelihood genetic diversity may increase because threats to the DPS, and the comments that the threats that caused these of limited connectivity among habitat and information received during the two declines will continue to operate across patches. Overall, SSN DPS fishers are comment periods associated with the the range of the SSN DPS. The current represented across a small, fragmented 2019 Revised Proposed Rule. and ongoing cumulative impacts to the range and occur in small numbers. We find that the SSN DPS is currently SSN DPS associated with current in danger of extinction throughout all of Determination climate-change-model predictions for its range due to the existing threats that continued periodic but prolonged Section 4 of the Act (16 U.S.C. 1533) have resulted in a small population size, drought conditions, predictions of and its implementing regulations (50 reduced geographic distribution, and continued and increased intensity of CFR part 424) set forth the procedures reduced habitat quality resulting in wildfires and subsequent habitat loss for determining whether a species meets habitat fragmentation. Because it is and fragmentation in the southern Sierra the definition of ‘‘endangered species’’ limited to a single, fragmented Nevada, the high likelihood of or ‘‘threatened species.’’ The Act defines population with few individuals and continued presence and spread of forest an ‘‘endangered species’’ as a species has experienced recent and rapid loss of insect and tree diseases, and the low that is ‘‘in danger of extinction habitat, and given the threats acting likelihood that a significant proportion throughout all or a significant portion of upon it, the current condition of the of existing toxicants on the landscape its range,’’ and a ‘‘threatened species’’ as SSN DPS across the southern Sierra would be removed in the near-term a species that is ‘‘likely to become an Nevada does not demonstrate resiliency, future indicate that the range of SSN endangered species within the redundancy, and representation such DPS is likely to decrease in available foreseeable future throughout all or a that persistence into the future is likely. habitat and habitat patch size along with significant portion of its range.’’ The Act At this time, the best available continued exposure to threats to requires that we determine whether a information suggests that future individual survival resulting in species meets the definition of resiliency for the SSN DPS of fisher is continued declines in resiliency. ‘‘endangered species’’ or ‘‘threatened low. As discussed above in the ‘‘Risk species’’ because of any of the following Factors for the SSN DPS of Fisher’’ With regard to redundancy, multiple, factors: (A) The present or threatened section (along with some detail in the interacting populations across a broad destruction, modification, or 2014 draft and 2016 final Species geographic area or a single wide-ranging curtailment of its habitat or range; (B) Reports (Service 2014 and 2016, entire)), population (redundancy) provide Overutilization for commercial, the SSN DPS faces a variety of threats insurance against the risk of extinction recreational, scientific, or educational including: loss and fragmentation of caused by catastrophic events. Prior to purposes; (C) Disease or predation; (D) habitat resulting from high-severity the 2012–2015 drought, redundancy The inadequacy of existing regulatory wildfire and wildfire suppression, was limited across the range of the SSN mechanisms; or (E) Other natural or climate change, tree mortality from DPS as a result of the DPS being a single manmade factors affecting its continued drought, disease, and insect infestations, fragmented population distributed over existence. vegetation management, and a relatively confined (for a carnivorous development; and potential direct mammal) geographic area. Redundancy Status Throughout All of Its Range impacts to individuals (e.g., increased was further limited by the range-wide In our 2019 Revised Proposed Rule mortality, decreased reproductive rates, loss of foraging and denning habitat we proposed that the Western DPS of increased stress/hormone levels, along with the associate increase in fisher met the definition of a threatened alterations in behavioral patterns) from habitat fragmentation and decrease in species. Recognizing the SSN as a wildfire, increased temperatures, habitat patch size, which make the separate DPS, we now conduct an increased tree mortality, disease and species as a whole more susceptible to analysis of the SSN DPS to determine its predation, exposure to toxicants, vehicle catastrophic events by further limiting status considering the current condition collisions, and potential effects their distribution. The limited of the DPS and current and ongoing associated with small population size. redundancy of the SSN DPS decreases threats. We evaluated threats to the SSN Currently, fishers in the SSN DPS the DPS’s chance of survival in the face DPS of fishers and assessed the exist in one small population. Estimates of potential environmental, cumulative effect of the threats under of population size and trend prior to the demographic, and genetic stochastic the section 4(a)(1) factors. Our 2016 severe 2012–2015 drought suggested the

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SSN DPS consisted of approximately high-severity wildfires, and prolonged disease, and insect infestation is 300 individuals (range = low of 100 to droughts that exacerbate the effects from exacerbated by changing climate a high of 500 individuals), while there wildfire, forest insects, and tree disease conditions and thus also plays a role is no statistically detectable trend in are operating at a scale much larger than under Factor A), and exposure to population size or growth. No estimates the current scope of the beneficial toxicants (Factor E), are acting upon the are available for population size or trend actions. Further, the two MOU SSN DPS to such a degree that it is following the 39 percent loss of foraging agreements in California within the currently in danger of extinction. The and denning habitat and 92 percent range of the SSN DPS for wildfire and existing regulatory mechanisms (Factor reduction in average habitat patch size. fuels management have no specific D) are not addressing these threats to the Overall, the SSN DPS of fisher exists as conservation measures for fisher. level that the species does not meet the a single small population that has The best available information definition of an endangered species. persisted but does not appear to be suggests that identified threats are of Thus, after assessing the best available expanding and has experienced recent concern across the range of the SSN DPS information, we conclude that the SSN substantial habitat loss, fragmentation, because of the narrow band of habitat DPS of fisher is currently in danger of and reduction in habitat patch size. that comprises this DPS and its extinction throughout all of its range. In We took into consideration all of the vulnerability to negative impacts reaching this conclusion, we have threats operating within the range of associated with small population size. considered all information received SSN DPS. This DPS is reduced in size As noted in our analysis, preliminary from species experts, partners, the due to historical trapping and past loss habitat-based population models suggest public, and other interested parties, of late-successional habitat and, that the configuration of habitat affects including the variety of available therefore, is more vulnerable to population numbers in this region, and conservation measures and existing extinction from random events and that some areas with high-quality regulatory mechanisms that may increases in mortality. Some examples habitat may remain unoccupied even at ameliorate the threats. of multiple threats on the SSN DPS of equilibrium population sizes, probably fisher include: due to restricted connectivity between Status Throughout a Significant Portion • Destruction, modification, or these locations and the main body of the of Its Range curtailment of habitat, which may population (Service 2016, p. 44; Under the Act and our implementing increase fisher’s vulnerability to Rustigian-Romsos 2013, pers. comm.). regulations, a species may warrant predation and loss of genetic diversity Therefore, the cumulative impacts listing if it is in danger of extinction or (Factors A, C, and E); related to the habitat-based threats are likely to become so in the foreseeable • Impacts associated with climate likely to have a negative effect on the future throughout all or a significant change, such as increased risk of SSN DPS because connectivity would portion of its range. We have wildfire and tree mortality (tree insects likely decrease further (Service 2016, p. determined that the SSN DPS is in and disease) (Factors A, C, and E). 69). danger of extinction throughout all of its Depending on the scope and degree of For the mortality-related threats, we range, and accordingly, did not each of the threats and how they reaffirm our quantitative assessment undertake an analysis of any significant combine cumulatively, these threats can from 2014 regarding potential portion of its range. Because we have be of particular concern where cumulative impacts in those portions of determined that the SSN DPS warrants populations are small and isolated. The the range of the SSN DPS where data listing as endangered throughout all of cumulative effect (all threats combined) were available to do so. Modeling its range, our determination is is currently causing rapid loss of habitat completed for the SSN DPS consistent with the decision in Center and habitat patch size across the range demonstrates that a 10 to 20 percent for Biological Diversity v. Everson, 2020 of the SSN DPS and exposing SSN DPS increase in mortality rates could prevent WL 437289 (D.D.C. Jan. 28, 2020), in fishers to increased threats from direct fisher populations from the opportunity which the court vacated the aspect of mortality, resulting in low resiliency to expand in the future (Spencer et al. the 2014 Significant Portion of its Range and reducing viability for the SSN DPS 2011, pp. 10–12). Coupled with an Policy that provided the Service and the as a whole. The SSN DPS is particularly increasing trend in habitat-related National Marine Fisheries Service do vulnerable in areas not managed for threats, the best available information not undertake an analysis of significant retention and recruitment of fisher suggests that cumulative effects to the portions of a species’ range if the habitat attributes, areas sensitive to SSN DPS of fisher are reducing its species warrants listing as threatened climate change, areas susceptible to resiliency to such a degree that the DPS throughout all of its range. large high-severity fires and tree is currently in danger of extinction mortality, and areas where direct throughout all of its range. Based on our Determination of Status mortality of fishers reduces their ability review of the best scientific and Our review of the best available to maintain or expand their populations commercial data available, we have scientific and commercial information (Service 2014, pp. 166–169). determined the SSN DPS of fisher meets indicates that the SSN DPS of fisher Additionally, although there is currently the definition of an endangered species meets the definition of an endangered a wide array of regulatory mechanisms under the Act. Per our 2014 draft and species. Therefore, we are listing the and voluntary conservation measures in 2016 final Species Reports, as well as SSN DPS of fisher as an endangered place to provide some benefits to the our most recent analysis summarized species in accordance with sections 3(6) species and its habitat (see ‘‘Existing herein and based on the comments and and 4(a)(1) of the Act. Regulatory Mechanisms’’ and information received on the 2019 ‘‘Voluntary Conservation Measures,’’ Revised Proposed Rule, we find the Available Conservation Measures above), these measures have not cumulative impact of all identified Conservation measures provided to ameliorated the threats to such a degree threats on the SSN DPS, especially species listed as endangered or that the DPS is not currently in danger habitat loss and fragmentation due to threatened species under the Act of extinction. In particular, threats high-severity wildfire (Factor A) and include recognition, recovery actions, acting on this small population related vegetation management (Factor A) requirements for Federal protection, and to illegal rodenticide use, increasing (noting that tree mortality from drought, prohibitions against certain practices.

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Recognition through listing results in businesses, and private landowners. described in the preceding paragraph public awareness and conservation by Examples of recovery actions include include management and any other Federal, State, tribal, and local agencies, habitat restoration (for example, landscape-altering activities as well as private organizations, and individuals. restoration of native vegetation), toxicant use on Federal lands The Act encourages cooperation with research, captive propagation and administered by the U.S. Fish and the States and other countries and calls reintroduction, and outreach and Wildlife Service, USFS, BLM, and NPS; for recovery actions to be carried out for education. The recovery of many listed issuance of section 404 Clean Water Act listed species. The protection required species cannot be accomplished solely permits by the Army Corps of Engineers; by Federal agencies and the prohibitions on Federal lands because their range and construction and maintenance of against certain activities are discussed, may occur primarily or solely on non- roads or highways by the Federal in part, below. Federal lands. To achieve recovery of Highway Administration. The primary purpose of the Act is the these species requires cooperative The Act and its implementing conservation of endangered and conservation efforts on private, State, regulations set forth a series of general threatened species and the ecosystems and tribal lands. prohibitions and exceptions that apply upon which they depend. The ultimate Following publication of this final to endangered wildlife. The prohibitions goal of such conservation efforts is the listing rule, funding for recovery actions of section 9(a)(1) of the Act, codified at recovery of these listed species, so that will be available from a variety of 50 CFR 17.21, make it illegal for any they no longer need the protective sources, including Federal budgets, person subject to the jurisdiction of the measures of the Act. Subsection 4(f) of State programs, and cost-share grants for United States to take (which includes the Act calls for the Service to develop non-Federal landowners, the academic harass, harm, pursue, hunt, shoot, and implement recovery plans for the community, and nongovernmental wound, kill, trap, capture, or collect; or conservation of endangered and organizations. In addition, pursuant to to attempt any of these) endangered threatened species. The recovery- section 6 of the Act, the State of wildlife within the United States or on planning process involves the California would be eligible for Federal the high seas. In addition, it is unlawful identification of actions that are funds to implement management to import; export; deliver, receive, carry, necessary to halt or reverse the species’ actions that promote the protection or transport, or ship in interstate or foreign decline by addressing the threats to its recovery of the SSN DPS of fisher. commerce in the course of commercial survival and recovery. The goal of this Information on our grant programs that activity; or sell or offer for sale in process is to restore listed species to a are available to aid species recovery can interstate or foreign commerce any point where they are secure, self- be found at: http://www.fws.gov/grants. species listed as an endangered species. sustaining, and functioning components Please let us know if you are It is also illegal to possess, sell, deliver, of their ecosystems. interested in participating in recovery carry, transport, or ship any such Recovery planning includes the efforts for this species. Additionally, we wildlife that has been taken illegally. development of a recovery outline invite you to submit any new Certain exceptions apply to employees shortly after a species is listed and information on this species whenever it of the Service, the National Marine preparation of a draft and final recovery becomes available and any information Fisheries Service, other Federal land plan. The recovery outline guides the you may have for recovery planning management agencies, and State immediate implementation of urgent purposes (see FOR FURTHER INFORMATION conservation agencies. recovery actions and describes the CONTACT). We may issue permits to carry out process to be used to develop a recovery Section 7(a) of the Act requires otherwise prohibited activities plan. Revisions of the plan may be done Federal agencies to evaluate their involving endangered wildlife under to address continuing or new threats to actions with respect to any species that certain circumstances. Regulations the species, as new substantive is proposed or listed as an endangered governing permits are codified at 50 information becomes available. The or threatened species and with respect CFR 17.22. With regard to endangered recovery plan also identifies recovery to its critical habitat, if any is wildlife, a permit may be issued for the criteria for review when a species may designated. Regulations implementing following purposes: For scientific be ready for downlisting or delisting, this interagency cooperation provision purposes, to enhance the propagation or and methods for monitoring recovery of the Act are codified at 50 CFR part survival of the species, and for progress. Recovery plans also establish 402. Section 7(a)(4) of the Act requires incidental take in connection with a framework for agencies to coordinate Federal agencies to confer with the otherwise lawful activities. There are their recovery efforts and provide Service on any action that is likely to also certain statutory exemptions from estimates of the cost of implementing jeopardize the continued existence of a the prohibitions, which are found in recovery tasks. Recovery teams species proposed for listing or result in sections 9 and 10 of the Act. (composed of species experts, Federal destruction or adverse modification of It is our policy, as published in the and State agencies, nongovernmental proposed critical habitat. If a species is Federal Register on July 1, 1994 (59 FR organizations, and stakeholders) are listed subsequently, section 7(a)(2) of 34272), to identify to the maximum often established to develop recovery the Act requires Federal agencies to extent practicable at the time a species plans. When completed, the recovery ensure that activities they authorize, is listed, those activities that would or outline, draft recovery plan, and the fund, or carry out are not likely to would not constitute a violation of final recovery plan will be available on jeopardize the continued existence of section 9 of the Act. The intent of this our website (http://www.fws.gov/ the species or destroy or adversely policy is to increase public awareness of endangered), or from our Yreka Fish modify its critical habitat. If a Federal the effect of a proposed listing on and Wildlife Office (see FOR FURTHER action may affect a listed species or its proposed and ongoing activities within INFORMATION CONTACT). critical habitat, the responsible Federal the range of the species proposed for Implementation of recovery actions agency must enter into consultation listing. generally requires the participation of a with the Service. Based on the best available broad range of partners, including other Federal agency actions within the information, the following actions may Federal agencies, States, Tribes, species’ habitat that may require potentially result in a violation of nongovernmental organizations, conference or consultation or both as section 9 of the Act; this list is not

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comprehensive: (1) Unauthorized April 14, 2015) for additional received from the public and peer modification of the forest landscape comments. Following our withdrawal of reviewers on the 2014 Proposed Rule within the range of the SSN DPS; and this proposed rule (81 FR 22710, April and the Draft Species Report, and from (2) unauthorized use of first- and 18, 2016) and subsequent litigation (see the public on the 2019 Revised second-generation anticoagulant Previous Federal Actions, above), the Proposed Rule. As outlined in the April rodenticides and neurotoxicant District Court for the Northern District 2016 Withdrawal (81 FR 22710, April rodenticides within the range of the of California reinstated the 2014 18, 2016), which provided our full SSN DPS. Proposed Rule on September 21, 2018. response to all comments received to Based on the best available Given the time that had elapsed and the the initial documents, we added new information, the following actions are availability of new information, we information, made clarifications, and unlikely to result in a violation of reopened the comment period on the made necessary corrections to our final section 9, if these activities are carried 2014 Proposed Rule on January 31, 2019 Species Report (Service 2016, entire) to out in accordance with existing (84 FR 645), requesting that all reflect the peer and public comments regulations and permit requirements; interested parties submit new received to that time. As necessary, this list is not comprehensive: (1) Any information or comments by March 4, these prior comments have been actions that may affect the SSN DPS of 2019. We published the 2019 Revised reevaluated to inform the development fisher that are authorized, funded, or Proposed Rule on November 7, 2019 (84 of this final rule. For those comments carried out by a Federal agency, when FR 60278), again requesting that all where we determined a further response the action is conducted in accordance interested parties submit written was required, they are addressed in our with the consultation requirements for comments on the proposal by December response to comments section below or listed species pursuant to section 7 of 9, 2019, and noting that all previously are incorporated in our analysis in the the Act; (2) any action taken for submitted comments would be fully specific section of the final rule as scientific research carried out under a considered in the preparation of our appropriate. recovery permit issued by us pursuant final determination. Finally, we to section 10(a)(1)(A) of the Act; (3) land reopened the comment period on the 4(d) Rule actions or management carried out 2019 Revised Proposed Rule for (1) Comment: Multiple commenters under a habitat conservation plan additional comments and information to raised concerns, provided suggestions, approved by us pursuant to section be submitted by January 3, 2020 (84 FR and asked for clarification on the 4(d) 10(a)(1)(B) of the Act; and (4) recreation 69712, December 19, 2019), reiterating rule in the 2019 Revised Proposed Rule. activities that comply with local rules that our final determination would take Our Response: Under section 4(d) of and that do not result in take of listed into consideration all comments and the Act, the Secretary of the Interior has species, including hiking and any additional information we have the discretion to issue such regulations backpacking. received during the comment periods as he deems necessary and advisable to provide for the conservation of a species Critical Habitat described herein. Notices were published in a variety of listed as threatened, and can by Section 4(a)(3) of the Act, as newspapers during the comment regulation prohibit with respect to such amended, and implementing regulations periods inviting general public species any act prohibited under section (50 CFR 424.12), require that, to the comment on the various announcements 9(a)(1) for threatened wildlife species. In maximum extent prudent and between 2014 and 2019 outlined above. this final rule, we determine that the determinable, the Secretary shall Newspaper notices covered the range of NCSO DPS does not warrant listing designate critical habitat at the time the the DPS and included one or more of under the Act and that the SSN DPS species is determined to be an the following: Bellingham World, Chico meets the definition of an endangered endangered or threatened species. In the Enterprise Record, Eureka Times- species under the Act; therefore, since 2019 Revised Proposed Rule (84 FR Standard, Fresno Bee, Klamath Falls neither DPS will be listed as threatened, 60278, November 7, 2019), we Herald and News, Olympian, the section 4(d) provisions do not apply determined that designation of critical Oregonian, Peninsula Daily News, and the proposed 4(d) rule has been habitat was prudent but not Redding Record Searchlight, removed from this final rule. determinable because specific Sacramento Bee, Wenatchee World, and information needed to analyze the Yakima Herald Republic. We also Climate Change impacts of designation was lacking. We contacted appropriate Federal and State (2) Comment: One commenter are still in the process of assessing this agencies, Tribes, scientific experts and asserted that voluntary conservation information. We plan to publish a organizations, and other interested efforts on non-Federal lands mitigate proposed rule to designate critical parties and invited them to comment on and decrease the threats of climate habitat for the SSN DPS of fisher in the both the 2014 draft Species Report and change to fisher. near future. the 2014 Proposed Rule. Information Our Response: We considered both received from these parties was used to regulatory and voluntary conservation Summary of Comments and Responses update the 2016 Species Report and the measures that are currently being In the 2014 Proposed Rule published 2019 Revised Proposed Rule. We also implemented to reduce the impacts of on October 7, 2014 (79 FR 60419; used information received from Federal the stressors to the species in the final Docket No. FWS–R8–ES–2014–0041), and State agencies, Tribes, Species Report (Service 2016, pp. 162– we requested that all interested parties organizations, and other partners 189) and updated in this document (see submit written comments on the throughout the process. All substantive Existing Regulatory Mechanisms and proposal by January 5, 2015. We information provided during the Voluntary Conservation Measures, electively held one public hearing and comment periods outlined above has above), including important voluntary seven public information meetings either been incorporated directly into conservation contributions on non- between November 13 and December 4, this final determination or addressed Federal lands. 2014. The comment period for this rule below. We found that listing of the NCSO was extended (79 FR 76950, December In connection with development of DPS was not warranted. We have found 23, 2014) and reopened (80 FR 19953, this final rule, we reviewed comments that the SSN DPS meets the definition

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of an endangered species. At this time, Revised Proposed Rule, we added an complex information needed to perform we continue to assert that fisher habitat additional 15-day comment period an economic analysis. As stated in II. is likely to be affected by changing (ending on January 3, 2020) to the Critical Habitat, above, we are still climate conditions, but the severity will original 30-day comment period for the assessing information and we anticipate vary, potentially greatly, between the 2019 Revised Proposed Rule. Moreover, publishing a proposed rule to designate NCSO DPS and the SSN DPS, with as noted in our discussion of the DPS critical habitat in the near future. effects to fishers ranging from negative, above, we provided the public with Current Conservation Agreements neutral, or potentially beneficial. We notice of two alternative DPS cannot at this time conclude that configurations in our 2014 Proposed (7) Comment: One commenter asked if conservation efforts on non-Federal Rule, which included DPS boundaries landowners will be able to enroll in lands are mitigating or decreasing the that are very similar to the DPS CCAAs after a final rule is published. threats of climate change to fisher configurations that were analyzed in the Our Response: Landowners within the within the NCSO DPS or the SSN DPS. 2019 Revised Proposed Rule and this area of the NCSO DPS can enroll in That said, voluntary actions on non- final determination. CCAAs because we found that listing of Federal lands (e.g., CCAA, SHAs, HCPs, (5) Comment: One commenter the NCSO DPS was not warranted. Once and MOUs), particularly within the mentioned that significant new a species is listed as threatened or NCSO DPS, provide a conservation information has been developed since endangered under the Act, landowners benefit to the species (e.g., actions that the completion of the 2016 final Species are not able to enroll in CCAAs for that retain key elements of fisher habitat Report, and that the 2019 Revised species; this applies to the SSN DPS. and/or improve collaboration to reduce Proposed Rule mentioned some of the However, other conservation tools such significant spread of high-severity new data. However, the commenter as Safe Harbor Agreements (SHA) can wildfires) and may contribute to stated that the Service did not clarify provide assurances for landowners. A reducing the overall cumulative impacts how much weight was given to the new SHA is a voluntary agreement between to the NCSO DPS and its habitat. information in the decision to propose the Service and private or other non- Overall, anything that reduces impacts listing the fisher. Federal property owners whose actions to the species in the future would help Our Response: New information contribute to the recovery of federally increase its resilience to climate change. became available between completion of listed species. Landowners who fulfill (3) Comment: One commenter the 2016 final Species Report and the the conditions of the SHA will not be claimed that the best available science 2019 Revised Proposed Rule to list the subject to any additional or different on climate change should be added to fisher as a threatened species, and new management activities without their our analysis, including recent modeling information became available since the consent. and analysis information related to publication of our 2019 Revised (8) Comment: One commenter stated warming climate, wildfire severity, and Proposed Rule. We are obligated under that the completion of a marten/fisher droughts. This comment also was raised the Act to carefully consider whether or conservation strategy would in comments received on the 2014 not any new information would affect complement work being done by the Proposed Rule stating that there are our decision to list a species (i.e., Forest Service. A second commenter conflicting perspectives on the potential meeting the definition of an endangered provided a summary of a draft impacts associated with changing or a threatened species according to conservation strategy for fisher in the climate conditions, and the Service section 3 of the Act). All new SSN subpopulation, claiming that the needs to evaluate the best available information provided since the 2016 strategy will update fisher and fisher information. final Species Report was carefully habitat status, summarize new science, Our Response: We have evaluated analyzed. Our 2019 Revised Proposed provide recommendations for new information on climate change that Rule indicated that our conclusion in identifying and maintaining key habitat has become available since the 2014 the final determination may change elements, provide recommendations for Proposed Rule, including literature based on the new information we increasing resilience of fisher habitat, received and suggested citations during received in response to the 2019 identify potential mitigation for the comment periods on the 2019 Revised Proposed rule (84 FR at 60279). necessary management (e.g., hazard tree Revised Proposed Rule. All information And in fact, we found that the new removal), and identify potential received has been reviewed and information and information submitted management options for forest analyzed as part of our determination; during public comment provided conditions that support fisher the information is included in the substantial evidence that threats to the conservation. decision record for this determination, fisher have been reduced or eliminated Our Response: The Service supports a but not necessarily cited in this rule. to the extent that listing of the fisher is conservation strategy for the benefit of Significant new information or updates not warranted in the NCSO DPS but is marten and fisher to complement work are included in the Climate Change warranted for listing as an endangered being done by the Forest Service. The sections above. species in the SSN DPS. new draft conservation strategy for fisher in the SSN DPS was reviewed and Completeness and Accuracy Critical Habitat discussed above under Final Listing (4) Comment: Several commenters (6) Comment: Many commenters Determination for SSN under ‘‘Current stated that the 30-day comment period articulated the need for designated Condition’’ and ‘‘Voluntary for the 2019 Revised Proposed Rule did critical habitat for the West Coast DPS Conservation Measures.’’ not provide the public enough time to of fisher. Two of these commenters (9) Comment: One commenter stated evaluate the changes made to the asserted that critical habitat should have the 2019 Revised Proposed Rule was proposed rule, which had significant been proposed concurrent with the unclear as to whether or not differences from our previous proposed listing rule. conservation measures currently being determinations. Our Response: We stated in the 2019 implemented for fisher were evaluated. Our Response: In response to multiple Revised Proposed Rule that we were in Therefore, the commenter advised that requests seeking more time to fully the process of working with the States the Service cannot rely on those evaluate the information in the 2019 and other partners in acquiring the measures to support conclusions for

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unregulated take of individuals on commenter suggested that CCAAs, the area described in the 2019 Revised Federal land. which cover several million acres, are Proposed Rule as the West Coast DPS of Our Response: The Service evaluates being implemented or are sufficiently fisher. Some commenters stated that the voluntary conservation measures when certain to be implemented, which NCSO and SSN subpopulations are two considering the status of a species under should compel the Service to withdraw separate/isolated geographic areas with section 4 of the Act. As such, voluntary the proposed listing rule. no genetic interchange, and therefore conservation measures were considered Our Response: The Service supports they should be two separate DPSs, in this final rule for fisher. See the conservation efforts for the benefit of especially given the apparent Voluntary Conservation Measures fisher in both the NCSO DPS and the differences in landscape-level threats section, above. SSN DPS. We incorporated additional and information that they believe (10) Comment: One commenter stated information that was received during qualifies the SSN as distinct and that sustainable forestry practices on the comment period into our analysis significant according to our DPS Policy. private land support fisher conservation including CCAAs, HCPs, and MOUs that Some of these commenters further by providing healthy forests, forest benefit the NCSO DPS and/or the SSN articulated that the DPSs should be products, and wildlife enhancements. DPS of fisher. We found that listing of consistent with the ESUs designated in The commenter claimed that the NCSO DPS was not warranted. We 2015 by the CDFW, including that we unnecessary regulations and restrictions have found that the SSN DPS meets the should consider their decision that of sustainable forestry practices will definition of endangered; therefore, it is listing the Northern California ESU was negatively affect fisher populations and necessary to carefully assess actions that not warranted. Two commenters the ability of private landowners to may impact the DPS to avoid extinction. asserted that the SSN subpopulation maintain working forests on their lands. The Service will work with partners to should be a DPS that is listed as Our Response: We appreciate the continue forest practices that retain key endangered and the NCSO efforts on private lands to support elements of fisher habitat that will subpopulation should be a DPS that is healthy forests and provide wildlife continue to contribute to the overall listed as threatened given the enhancements that benefit fisher, and conservation of the species. See also the differences in existing conditions and we will continue to work with response to Comment 10 above. threats into the future. Finally, another landowners. We assume the commenter (12) Comment: One commenter stated commenter asserted that the NCSO, is concerned that sustainable forestry that the Service did not apply the Policy SSN, NSN, and SOC subpopulations practices would be regulated as a result for Evaluation of Conservation Efforts should all be individual DPSs. of listing the fisher under the Act. We When Making Listing Decisions (PECE) Our Response: We received multiple found that listing of the NCSO DPS was and asserted that application of this comments on our DPS approach in both not warranted. We determined that the policy will result in a determination the 2014 Proposed Rule and 2019 SSN DPS meets the definition of that listing fisher as a threatened species Revised Proposed Rule. As explained in endangered; thus, we are required by is not necessary. further detail in this document’s the Act to list it. The Service will work Our Response: In this final rule, the Summary of Changes from the 2019 with partners to continue forest NCSO DPS is not warranted for listing, Revised Proposed Rule section, we practices that retain key elements of so a PECE analysis is not appropriate. carefully considered all these fisher habitat that will continue to The SSN DPS is warranted for listing as comments, and as a result reevaluated contribute to the overall conservation of an endangered species, and we our DPS approach. We determined that the species. conclude that the existing conservation what we had proposed as the West (11) Comment: Multiple commenters efforts are not to the level that prevents Coast DPS in the 2019 Revised Proposed stated that voluntary conservation the SSN DPS from meeting the Act’s Rule should instead be two separate measures and multi-entity partnerships definition of an endangered species. DPSs, one for the SSN subpopulation, are in place, should receive Federal (13) Comment: One commenter is and one for the several subpopulations support or funding assistance, and concerned that timber management at a comprising the NCSO geographic area. should be the focus of the evaluation of landscape scale is likely to be We determined our analysis would the status of the fisher. Specifically, the unaffected by listing fisher. Specifically, focus on the conservation of extant commenters claimed that Federal and the commenter asserted that agreements subpopulations historically indigenous non-Federal land managers are engaging with timber companies that exempt to the California and southern Oregon in collaborative efforts (e.g., CCAAs, timber management activities will not region with unique genetic HCPs, MOUs) to maintain fisher habitat provide landscape-scale contiguous characteristics (as outlined in the 2014 and minimize wildfire risk, and the tracts of habitat or sufficient trees with Proposed Rule), while also allowing for Service failed to acknowledge these cavities. separate management of the two DPSs if efforts and their contribution to fisher Our Response: We assume the either or both were warranted for listing. conservation. Some of these agreements the commenter refers to are For a complete discussion of the logical commenters also stated that the Service HCPs, CCAAs, and SHAs. Each HCP, outgrowth that led to this outcome, provided little justification to the CCAA, and SHA contains measures to please refer to the Summary of Changes determination that conservation protect habitats for listed species. While section mentioned above, as well as the agreements are not acting at a scale and these may not individually operate at a detailed Distinct Population Segment magnitude sufficient to ameliorate landscape scale, the combined efforts analyses presented herein. threats, and that the extent of the across the range of the species (15) Comment: One commenter agreed agreements was not considered. An contribute to the ability of fishers to that the DPS configuration should not additional commenter is similarly move across larger landscapes and to include the State of Washington, and concerned that listing the fisher would find trees for denning and resting. two commenters disagreed, requesting mandate section 7 consultation under that we reconsider and include this area the Act for actions implemented under Distinct Population Segment (DPS) to address the connectivity needs of the MOUs, which would hinder (14) Comment: Several commenters species and consideration of habitat implementation and increase the risk of believed there should be more than one needed for dispersal. One of the two catastrophic wildfire. Finally, another DPS (with separate listing decisions) in commenters that disagreed also

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suggested that population monitoring of those fishers in California and northern but suggested the area east of Highway recent fisher reintroductions in Oregon that are historically extant. 97 in Oregon be excluded. Washington would be more readily (17) Comment: One commenter stated Our Response: As presented herein, supported if this area was included in that the revised DPS delineation/ our final analysis determines that the the DPS configuration. Relatedly, we description limits opportunities to NCSO DPS, which includes fishers in also received multiple comments on the implement future conservation Oregon, does not meet the definition of 2014 Proposed Rule suggesting that the measures throughout the historical either a threatened or endangered Service needs to consider connectivity range of the species. They also stated species. As a result, fishers east of between subpopulations and dispersal that excluding historically occupied Highway 97 would not be considered habitat within the DPS configuration, fisher habitat in Washington and Oregon listed under the Act. including habitat in Washington and limits opportunities for recovery. (20) Comment: One commenter Oregon that is north of the current Our Response: Please see our asserted that fishers residing in the SOC distribution. response to Comment 15. Conservation subpopulation (reintroduced from Our Response: As explained in further measures are not limited throughout the British Columbia and Minnesota) detail in both the 2019 Revised range of the species by this listing experience significantly different threats Proposed Rule, and in this document’s determination. and existing conditions (e.g., small Distinct Population Segment analyses, (18) Comment: Several commenters population size, surrounding habitat for the determination of a DPS is based on requested that we clearly define the expansion) than the NCSO where a population segment actually boundary of the DPS. For example, one subpopulation; therefore, these factors should lead to not including this occurs on the landscape. A DPS does commenter stated that there are only subpopulation area in any DPS. not set a geographic boundary, nor ‘‘set dispersing fishers in one area within the Our Response: As presented herein, aside’’ connectivity or dispersal habitat delineated boundary as described in the our final analysis includes the SOC for conservation purposes, but rather 2019 Revised Proposed Rule, and there subpopulation within the NCSO DPS. identifies the segment of a population does not appear to be a breeding Although the SOC subpopulation was that is discrete from, and significant to population there. Two commenters established with fishers from British the taxon as a whole, and that may or suggested that specific extant Columbia and Minnesota, the area may not require protection under the subpopulations are delineated that where the SOC occurs lies within the Act. Our DPS approach focused on the include a predicted movement distance, historical range of the NCSO DPS, and extant subpopulations historically such as the approach used for the more importantly, includes indigenous to the California and Humboldt marten (Martes caurina documentation of SOC fishers southern Oregon region with unique humboldtensis). Two other commenters interbreeding with fishers of the NCSO genetic characteristics, and such stated that the proposed boundary does subpopulation (Pilgrim and Schwartz subpopulations do not occur in not represent the extant subpopulations 2016, entire; Pilgrim and Schwartz Washington, nor in Oregon north of the or the specific predicted habitat areas, 2017, entire). Given this interbreeding current distribution. noting their belief that the basis for the activity and the use of suitable habitat (16) Comment: One commenter current depiction is unclear. between these two population areas, it asserted that it is inappropriate to Our Response: Please see our was a sound and logical conclusion to consider fishers reintroduced in the responses to Comment 14 and Comment include all fishers across these areas as State of Washington as nonnative, as 15 regarding the final determination of part of the NCSO subpopulation. this term typically describes a taxon DPSs. Additionally, there is no However, we found that listing of the occurring outside of its historical range. requirement that all areas of a DPS be NCSO DPS was not warranted. The commenter stated that reintroduced used for breeding. And, when we fishers in Washington are from source identify a DPS, we are simultaneously Distribution populations in British Columbia and evaluating the current range of the (21) Comment: One commenter Alberta, which were likely contiguous animals comprising the DPS. This provided new fisher detection locations and interbreeding with fishers that process is identical to our process for from systematic camera surveys historically occurred in Washington. any listed species. Any maps conducted from October 2018 to Our Response: In both the 2014 accompanying these determinations are February 2019 and from October 2019 Proposed Rule and 2019 Revised intended to illustrate that range, based through December 2019 within their Proposed Rule, we explained that our on the best available scientific and private timberlands in coastal northern use of the term ‘‘nonnative’’ was commercial information regarding the California. The commenter asserts that intended to articulate the difference species’ (or DPS’s) ecology and the the new information indicates that between the extant fisher availability of its resource needs on the fishers remain well distributed across subpopulations that have been landscape, but do not represent a their coastal California timberlands and indigenous to the three West Coast determination by the Service that all that fishers may have expanded into States since before the time of the areas within a generalized range are portions of northern coastal California original petition (‘‘native’’), and those occupied by the species. The maps where they were not detected during current fisher subpopulations that were presented herein depict our earlier survey efforts. established with fishers from outside understanding of the current ranges of Our Response: We thank the the three West Coast States both DPSs, with the further commenter for the new fisher detection (‘‘nonnative’’). We recognize that the understanding that these ranges are not information, which augments our fisher populations currently established necessarily static, and individuals from knowledge of the distribution and in Washington are genetically similar to either DPS have the potential to expand relative abundance of the fisher within historically indigenous Washington or contract from what are the current the NCSO. We have included this fishers prior to their extirpation, and our range limits. information in the NCSO Current only purpose in the use of the term (19) Comment: One Federal partner Condition above. We agree that the ‘‘nonnative’’ was to distinguish the stated their support of listing native submitted information demonstrates reintroduced Washington fishers from fisher populations wherever they occur, that fishers are well distributed across

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portions of the commenter’s California this area would be a part of the SSN opposition to climate change with timberlands where surveys were DPS. In addition, the recent detection of sequestration of carbon in wood conducted. at least one fisher north of the Merced products and renewable reforestation (22) Comment: One commenter River indicates that the SSN DPS has and harvest cycles. disagreed with information we the capability to expand into the area Our Response: While sustainable presented in the 2019 Revised Proposed between the Tuolumne River and the forest management certification Rule regarding the historical and current Merced River (Stock 2020, pers. comm.). programs require actions by participants distribution of fishers in the SSN that are ecologically beneficial, the subpopulation. The commenter Existing Regulatory Mechanisms certification standards are too general to suggested that our statement that (23) Comment: Several commenters evaluate the effects of participation on historically the SSN subpopulation stated that the proposed rule fails to fisher conservation. As an example, one likely extended farther north than our adequately consider existing of the certification programs lists the current DPS boundary in the Sierra conservation efforts that benefit the following standards: (1) A program to Nevada was conjecture and that fisher and other actions that benefit protect threatened and endangered historical museum specimens are other forest species. These efforts species; (2) a program to locate and limited to south of the Tuolumne River, include such things as CCAAs, MOUs, protect known sites of flora and fauna which is currently the northern HCPs, ongoing enforcement agreements associated with viable occurrences of boundary of what was identified in the implemented by State and Federal critically imperiled and imperiled 2019 Revised Proposed Rule as the parties, and conservation agreements for species and communities also known as Sierra Nevada portion of the DPS. other species such as spotted owls, Forests with Exceptional Conservation Further, the commenter mentioned that which can benefit fisher. Although Value; and (3) support of and our statement that multiple lines of many of these efforts are mentioned in participation in plans or programs for genetic evidence suggests that the NCSO the 2019 Revised Proposed Rule, the the conservation of old-growth forests in and SSN subpopulations have been commenters believed that there is no the region of ownership or forest isolated since before European evaluation, both individually and tenure’’ (SFI 2015, p. 6). We believe settlement contradicts the previous cumulatively. Other commenters stated these sustainable forest management assertion that fishers historically that these efforts must be considered in certification programs can and do occupied the area between the NCSO combination with the extensive promote and lead to fisher conservation. and SSN portions of the DPS. The regulatory framework that already exists We are not implying that these commenter also disagreed with our (e.g., the Sierra Nevada Forest Plan standards are faulty. However, as statement that the current northern Amendment for the Forest Service; the written these general standards are too boundary of the SSN subpopulation is California Forest Practice Rules and the vague to consider their benefit to fishers the Tuolumne River in Yosemite California Environmental Quality Act and how they may reduce existing National Park, asserting that the and their roles in the timber harvest threats. The Service requires specific northern extent of the current occupied planning process in the State). information from the participants of the distribution of the SSN subpopulation is Our Response: As noted by the sustainable forest management actually the Merced River, varying from commenter, our 2019 Revised Proposed certification program and how they about 10 to 20 miles south of the Rule mentions existing conservation meet these standards in order to be able Tuolumne River. They stated that only efforts that provide benefits to fisher to assess the degree to which they affect a single male fisher was recently and other forest species. In that fisher conservation and address the detected north of the Merced River and proposed rule, we provided an in-depth threats to the species. that there is no fisher population discussion about how existing (25) Comment: One commenter stated between the Merced and Tuolumne regulatory mechanisms and other that the Service cannot rationally Rivers. voluntary conservation efforts benefit assume that BLM lands in the DPS will Our Response: Although not fishers. Each of these regulatory be managed in a way to promote confirmed, there are numerous mechanisms and conservation efforts viability or recovery of fisher because of historical sightings of fishers, many of were evaluated individually for how recent court rulings regarding the them from reported trapping locations they may provide benefits, and Oregon and California Railroad (O&C) from 1919 through 1924, in the areas cumulatively to assess how in lands under BLM management. If these between the SSN and NCSO DPSs combination they may ameliorate rulings stand, BLM will no longer be (summarized in CDFW 2015, pp. 17– threats. A similar in-depth analysis is able to place O&C timberlands in 19). Thus, we conclude that, at some provided in this current rule, albeit with reserves. The final rule must address point, fishers occupied portions of the analyses specific to both the NCSO DPS how the Service intends to achieve northern Sierra Nevada at least and SSN DPS. Further discussion of recovery in light of these rulings. temporarily. Whether the northern how all of the regulatory mechanisms Our Response: We have Sierra Nevada contained a viable and conservation efforts were acknowledged the recent court ruling population or only served as a considered in the context of the existing regarding BLM O&C lands in this rule movement corridor between the current regulatory frameworks and our status and that this decision has been NCSO and SSN DPSs is unknown. That evaluations can be found in the appealed. However, we must base our said, genetic information supports that Determination sections for each DPS in decision on the regulatory mechanisms the NCSO and SSN DPSs have been this final rule document. currently in place, which are the 2016 largely separated for thousands of years (24) Comment: One commenter stated revisions to BLM’s western Oregon (Tucker et al. 2014, p. 3), so we that the proposed rule does not consider resource management plans. We cannot determined that separating the NCSO the widespread participation in speculate how the court’s ruling will DPS and SSN DPS was appropriate. sustainable forest management ultimately effect BLM management We included the area between the certification programs such as the going forward. For example, the ruling Tuolumne and Merced Rivers in the Sustainable Forestry Initiative and the may stand, it may be overturned by a SSN DPS because the area contains Forest Stewardship Council that higher court, or a settlement may be suitable habitat, and fishers found in promote forest health and resilience in reached to implement yet a different

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management action. Opportunities to money in 2017 through their Cannabis continue to work with us to conserve assess any such changes in BLM Restoration Grant Program to clean up species. management, once final, will occur illegal grow sites, and that they may (30) Comment: One commenter stated through a new listing petition. continue to do so in the future. And we that listing the fisher would also Consequently, we base our conclusion recognize efforts by private timber increase wildfire risk within the fisher’s on the plans in place at the time of our companies (e.g., GDRC HCP) to restrict range and blunt the effectiveness of decision, which are the 2016 western access and patrol their lands. wildfire prevention measures that are Oregon resource management plans. Conversely, we note that Forest Service already in place. Private landowners are (26) Comment: One commenter said law enforcement personnel have currently implementing an MOU that is that assuming the NEPA process will do observed that State and local resources designed to lessen wildfire risks within good things for fisher is incorrect. for combatting illegal cultivation on the fisher’s range. If the fisher were Federal agencies document their actions Federal lands has diminished since listed as threatened or endangered, under NEPA and whether they comply State cannabis legalization, as resources these wildfire reduction measures with the Endangered Species Act, but have been redirected to State and local would be slowed down and would the process itself does not provide a regulatory compliance (Klassen and become less effective. Listing the fisher conservation benefit. Anthony 2019, p. 45). There are still would also have the consequence of Our Response: We have not assumed both many unremediated and requiring Federal agencies to consult that NEPA will benefit fishers. We undiscovered illegal marijuana sites under section 7 of the ESA before taking explicitly stated in our 2019 Revised across the landscape where further actions that could affect fisher habitat, Proposed Rule (84 FR at 60296, clean-up efforts are needed. We including the fuels reduction efforts November 7, 2019), ‘‘NEPA does not commend on-going efforts and contemplated under the MOU. regulate or protect fishers, but requires encourage all future funding and clean- Our Response: The MOU referenced full evaluation and disclosure of the up efforts. We also recognize the by the commenter pertains to the NCSO effects of Federal actions on the magnitude and scope of the problem DPS area, which is found not warranted environment.’’ We continue to affirm that makes the threat of exposure to for listing in this determination. There that statement in this document. toxicants difficult to manage across the is no similar agreement applicable to the (27) Comment: One commenter stated landscape. Please see the NCSO DPS that the regulatory mechanisms SSN DPS. Consequently, we believe the and SSN DPS discussions above in their concerns expressed are not applicable to embodied in law enforcement agencies respective Exposure to Toxicants have failed to control illegal cultivation this listing determination. We do not sections for our assessment of this believe that listing the fisher would of marijuana on public lands, leading threat. increase wildfire risk in the SSN DPS directly to the issues described under (29) Comment: One commenter stated because the Service is working with the toxicants section of the proposed that if the fisher is listed, then positive rule. The proposed rule should relationships with landowners will be Federal agencies to develop a acknowledge this fact, recognizing and impossible and harm proactive, programmatic consultation process to calling attention to the limitations collaborative, voluntary conservation. streamline wildfire reduction activities imposed on the funding and priorities Our Response: We are committed to that provide for the conservation of under which these agencies operate. creating positive relationships with fisher. Our Response: We have landowners. As an example, by working Fisher Biology acknowledged the difficulties with commercial timber landowners in experienced by law enforcement to Oregon on fisher CCAAs, we have built (31) Comment: Two commenters address illegal cultivation of cannabis collaborative relationships that have pointed out new studies showing that on public lands in this rule (see spilled over into work on proactive fishers use managed landscapes. They Exposure to Toxicants section). conservation for other species both noted that fishers have been (28) Comment: One commenter considered for listing under the Act, documented using slash piles for observed that the proposed rule does such as the Pacific marten (Martes denning. One of them also added that not acknowledge existing efforts to caurina) and red tree vole (Arborimus fishers use areas near timber harvest address illegal cannabis cultivation on longicaudus). There are many tools units, possibly due to the availability of public lands (e.g., increasing California available to incentivize collaborative, prey. State agency staff; CROP Project voluntary conservation for the fisher. Our Response: Fishers use managed (Cannabis Removal on Public Lands), Potential voluntary conservation landscapes on private industrial whose goal is to increase funding for opportunities include: CCAAs (such as timberlands, and this determination trespass grow reclamation, increase the existing agreement with SPI); HCPs reflects this use. Rather than specifically USFS Law Enforcement presence, and (such as the existing plan with GDRC for mentioning fisher use of slash piles in implement statewide education on the northern spotted owl); and SHAs our analysis, we considered fisher use of health risks of unregulated cannabis). (such as the existing agreement in managed landscapes more broadly in Evaluation of toxicant threat is Oregon). These agreements and plans vegetation management. incomplete without considering the allow landowners to manage their lands Fuels Treatment regulatory mechanisms related to while conserving species, and at the cannabis cultivation. same time provide landowners (32) Comment: Some commenters Our Response: We recognize and regulatory assurance and incidental take expressed that protecting fishers from commend efforts to clean up illegal coverage under the Act for agreed upon extreme wildfire is important, stating grow sites and remove toxicants from activities. Also, our Partners for Fish that wildfires are prevalent in the DPS the landscape. We acknowledge the and Wildlife Program works with and and are predicted to increase in CROP Project and their efforts to reduce funds landowners to implement on-the- frequency. They indicated that high- and reclaim illegal cannabis cultivation ground conservation efforts on their severity burns take decades if not on public lands (see Exposure to lands. Though not all landowners centuries to replace habitat structures Toxicants section). We also participate in these various voluntary necessary to support fishers and their acknowledge that CDFW provided conservation opportunities, many prey; therefore, thinning projects and

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prescribed burns are necessary to a general forest succession continuum, Our Response: As stated in earlier prevent stand-replacing wildfires. regardless of their age. Hence, a stand comments, OGSI–80 is not meant to Our Response: High-severity fires can meeting the OGS–I80 condition may be map where fishers may occur on the remove or substantially reduce fisher younger than 80 years old, and stands landscape, or to quantify fisher habitat habitat; thus, we assessed the substantially older than 80 may not characteristics, but to characterize conservation measures in place to meet the OGSI80 condition. Third, trends in those structural elements that conduct fuel reduction projects (see OGSI–80 was derived from a network of fishers use. We also want to clarify the Voluntary Conservation Mechanisms). plot data systematically placed across results of the analysis that the The Service is working with Federal all ownerships, not just Federal lands commenter is describing (Powell et al. agencies within the SSN DPS to develop (Davis et al. 2015, pp. 13–15). We 2019, Figure 28 and others). There are a programmatic consultation process to compared OGSI–80 trends between certainly areas of habitat classed by the streamline wildfire reduction activities Federal and non-Federal lands in our different models assessed as either that provide for the conservation of analysis. moderate fisher habitat or even fisher. The commenter’s conclusion as to relatively high-quality fisher habitat Habitat why the Zielinski model did not (e.g., Powell et al. 2019, Appendix 2, pp. perform as well on private lands 64–65) that fishers avoided. The authors (33) Comment: Once commenter assessed by Niblett et al. (2017) does not suspect lack of other vital habitat states that the use of OGSI–80 as a comport with the conclusion Niblett et components in these stands, such as surrogate for fisher habitat al. (2017, pp. 14–15) made. They note hardwoods, may be the reason, though underrepresents substantial areas of that Zielinski compiled a resting habitat this needs further study (Powell et al. occupied fisher habitat in the NCSO and suitability score that was a composite of 2019, Appendix 2, pp. 69–70). NSN areas and presented their analysis multiple features of fisher resting Nevertheless, for most of the models of citations (Zielinski et al. 2012; Niblett assessed in Powell et al. (2019, et al. 2017; Powell et al. 2019) to habitat, such as live tree basal area, large down wood abundance, hardwood basal Appendix 2), fishers still selected support this interpretation. Specifically, habitats on the landscape that generally they referenced application of the area, canopy cover, and mean tree age. Such an overall composite may be less encompassed largest tree category and Zielinski et al. (2004) fisher habitat greatest canopy cover. model on managed landscapes. They meaningful in characterizing fisher habitat on landscapes assessed by (35) Comment: One commenter claim that the model is similar to OGSI– believed our statement that substantial Niblett et al. (2017, entire) than just 80 in that it is derived from observed amounts of unoccupied fisher habitat assessing the structural attributes that fisher use of large, old trees in old could suggest that habitat is not limiting fishers use, especially because forest forests, primarily on public lands. for fisher and, therefore, habitat loss is cover is so low for such a large part of Applying the model on managed not a threat was misleading. They note their study area. In that light, OGSI–80 landscapes resulted in lands classified that there is not a lot of unoccupied is similar in that it is characterizing a as ‘‘poor’’ by the model actually being habitat in the SSN south of the Merced single component of fisher habitat, the occupied by fishers (Niblett et al. 2017; River, and, indeed, habitat may very structural habitat components that Powell et al. 2019). Thus, the likely be a limiting factor, especially for fishers are associated with, so long as commenter opined that projections of females in the currently occupied area. trends based on the OGSI–80 surrogate forest canopy cover meets a minimum of Unoccupied habitat north of the Merced cannot be relied upon to represent 10 percent. We note that Niblett et al. may not be accessible due to dispersal amounts of trends in fisher habitat. The (2017, p. 15) still found that, even in barriers (Merced River, high-severity fire commenter further recommended the their heavily managed landscape with areas, and heavily used roads in Service address the proportion of large areas absent of forest cover, fishers Yosemite National Park) and, therefore, occupied habitat actually represented by still denned in the largest available trees is not de facto evidence that habitat is OGSI–80, stating that the OGSI–80 on the landscape. Depending on the not a limiting factor. definition excludes substantial amounts vegetation zone that encompasses the Our Response: We recognize in the of occupied private and Federal land. Niblett et al. (2017, entire) study area, final rule that the interaction of all the Our Response: In addressing the last the OGSI–80 minimum structural threats within the SSN DPS are likely portion of the comment, our intended element thresholds (Davis et al. 2015, limiting northward expansion into what use of OGSI–80 is not as a surrogate for pp. 16–18) may or may not exceed the is considered suitable habitat for fisher. fisher habitat, nor to delineate areas on den tree and snags used by fishers in In general, fisher habitat is lacking the landscape where fishers may or may Niblett et al. (2017, p. 15). Nevertheless, landscape-scale forest heterogeneity in not be found. That would not be an OGSI–80 is not meant to map where the SSN DPS compared to historic appropriate use because the data fishers may occur on the landscape, or conditions, with wildfire and severe sources for OGSI–80 (gradient nearest to quantify fisher habitat characteristics, drought disturbances creating large neighbor or GNN) limit the application but to characterize trends in those patches of homogeneous habitat, which of the index to the landscape or regional structural elements that fishers use. are exacerbated by past logging practices scale and not the site-specific or local (34) Comment: One commenter stated and wildfire suppression (Thompson et scale (Ohman and Gregory 2002, p. 738). that in areas occupied by breeding al. 2019a, p. 13). We are not sure why the commenter female fishers on the Stirling (36) Comment: The proposed rule’s concluded that the Zielinski et al. (2004) Management Unit, some habitat estimation of habitat trend is model, derived from observed fisher use suitability models based on fisher use of inconclusive and does not indicate of very large old trees and logs in old forests with large trees performed very substantial decline. If the definition of forests primarily on public lands, is poorly in predicting fisher home ranges habitat is corrected to include the similar to OGSI–80. First, OGSI–80 is (Powell et al. 2019, Figure 28 and known fisher distribution, fisher habitat not based on fisher use of stands. others). Consequently, OGSI–80, being has in fact dramatically expanded. This Second, OGSI–80 does not indicate a based on large trees, will not represent expanded range is demonstrated by a 24 forest age, but rather structures that are areas used by fishers on these percent increase in the occupied range characteristic with where forests are on landscapes. since the CDFW estimate in 2010.

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Our Response: We do not agree with areas in Oregon that are occupied by predicting northern spotted owl habitat, the conclusion that habitat usable by fisher. but there is little evidence that fisher has dramatically expanded. A In the most recent review of fisher, predicted habitat for northern spotted range expansion for fisher or any other CDFW concludes that fishers currently owl is similar to fisher habitat (cites species does not automatically mean occupy much of their historical range in Zielinski et al. 2006). Trends in OGSI– that habitat has increased. Many factors northwestern California and may have 80 should only be used to represent serve to limit species distribution (e.g., expanded in the redwood region (CDFW habitat in areas where that habitat type connectivity and fragmentation, prey 2015, p. 23); fisher detections have occurs and should not be relied upon to and predators, population increased in northern coastal California represent fisher habitat trends demographics), and these factors may or since the 1990s, though it is not known elsewhere. may not be affected by habitat. Although as to whether this increase is due to a Our Response: We have revised our not perfect, our analyses for vegetation range expansion, recolonization, vegetation management section to management and wildfire show losses of increased survey effort, or whether clarify our use of the OGSI–80 forest either fisher habitat or structural fishers remained undetected in earlier condition. We have explored several elements used by fishers (as represented surveys (CDFW 2015, p. 50). avenues to assess trends in fisher habitat by OGSI–80). Further, the OGSI–80 In our draft and final Species Report, in the absence of an available DPS-wide analysis, which incorporates ingrowth we reviewed fisher data (1994–2013) for model that displays changes in fisher and is only for the NWFP portion of the accuracy and minimized repetitive habitat over time. For our 2014 NCSO DPS, indicates a net loss of this individual sightings. When we use the Proposed Rule, we used northern structural condition type. In the SSN, data from our species report and overlay spotted owl habitat as a surrogate for areas within the previously known it with (1) newer locations from the fisher habitat because that allowed us to fisher distribution experienced a California Natural Diversity Database estimate losses through timber harvest. reduction of nearly 40 percent due to (reviewed for accuracy), (2) newer SPI However, comments from peer fire, drought, and associated tree locations, (3) newer locations from reviewers and the public criticized our mortality. Although we expect ingrowth Collins Pine Company, (4) multiple use of spotted owl habitat and that it to occur, we are uncertain how soon the newer efforts in southern Oregon may not properly represent fisher landscape will be considered fisher (captured for NCSO in Current habitat. They also wanted us to consider habitat, particularly because large trees Condition, above), and (5) also consider ingrowth of fisher habitat and its role in that often act as a seed source for future historical locations before 1994, the replacing habitat lost to disturbances regeneration were disproportionately majority of new locations are infill such as vegetation management and fire. affected. within the bounds of our 1994–2013 Hence, we have used OGSI–80 because data (Service 2020, map). There are a it is a forest stand condition that is The number of fishers in the NSN few areas where we see new fisher mapped throughout most of the NCSO subpopulation is increasing and with sightings, particularly along the eastern portion of the DPS. We do not consider this increase, fishers are expanding and edge of the species’ range. In Oregon, we it as a model for fisher habitat and using new habitats. We are encouraged expect these new locations are largely a realize that it may include areas that are by this expansion and commend SPI, product of increased survey effort or not considered suitable for fishers, as CDFW, and other partners for their research activity rather than an actual well as not capturing all suitable fisher efforts. However, we conclude that this increase in the range, because there are habitat. It does, however, allow us to expansion is due to reintroduction numerous historical sightings in these assess regional-scale trends in the efforts, not because of an increase or areas. In California, some of this forests that contain the structural expansion of new habitat. Prior to the expansion is because of reintroduction elements consistently used by fishers reintroduction, the habitat existed and efforts at NSN, but some may also be (large snags, down wood, and large live was available, but it was unoccupied. because of an increase in range, or trees). Although several commenters The commenter suggests that fisher’s increased survey efforts. We are also believe this is not the best available range has expanded by 24 percent since aware of a few areas where contractions data, they have provided no alternatives a CDFW estimate in 2010. Based on the have been reported in Southern Oregon to assess trends in this structural maps provided and the comment, we near the Biscuit Fire and the SOC condition (both loss and recruitment) at assume this refers to a 24 percent subpopulation. We conclude that there a regional scale across the DPS. increase in the occupied range for has been a recent range expansion Regarding the comment that OGSI–80 NCSO. Judging expansions or because of the reintroduction effort in should be used to represent habitat only contractions in fisher populations from the NSN subpopulation. There have also in areas where the habitat type occurs, ranges drawn by humans on a map can been some small contractions. And, we do not consider OGSI–80 a habitat be problematic because the polygons there have been some small expansions, type. It represents a structural condition created might not capture areas that but we are unclear if these are actual used by fishers. The OGSI–80 condition have not been surveyed, they likely do expansions or the result of increased has the potential to be found anywhere not consider variable survey efforts (i.e., survey effort. the forest vegetation zones upon which opportunistic versus systematic camera it was built occur (Davis et al. 2015, pp. surveys), or a line may closely or loosely Habitat Recruitment 9–10, Figure 4), which is all forested follow a boundary (which can greatly (37) Comment: A couple of zones within the NWFP portion of the skew comparisons). In this case, the commenters stated that OGSI–80 is a DPS. Hence, we are not applying it in CDFW polygon does not include the poor surrogate for fisher habitat and areas outside of its intended use. NSN subpopulation, nor does it include demonstrably under-represents (38) Comment: Regarding our use of all the known fisher sightings in the substantial areas of occupied fisher OGSI–80 to document trends in area at the time, nor does it consider habitat in the NCSO and NSN areas and vegetation important to fishers, one areas that may have been under- is not the best scientific information. commenter believed it is unlikely that surveyed. Furthermore, since CDFW’s There is little evidence that OGSI–80 80-year-old conditions would represent 2010 estimate is from a California- represents or correlates with fisher fisher habitat unless those stands specific analysis, it does not include habitat. It may be appropriate for contained much older features. Another

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commenter noted that in using OGSI to 80 forest to wildfire in the NWFP ingrowth on non-Federal lands, in measure ingrowth of fisher habitat, the portion of the DPS (which covers the including the data from Davis et al. Service has no idea if the stands with NCSO portion of the DPS) and the (2015, pp. 30–31), which addressed ingrowth have structures needed by analysis done by the Service to more ingrowth from both Federal and non- fisher. Hence, the Service should not directly assess fisher habitat loss to Federal lands. Ingrowth was over three assume that recently developed OGSI– wildfire. We assume that the times greater on non-Federal lands than 80 stands are of a quality 80 years post- commenter’s statement that fire is on Federal lands (13.5 percent on non- harvest to support fisher denning. removing 8 percent/decade of fisher Federal lands and 4.2 percent on Our Response: See our responses habitat is referring to our projection that Federal lands, for a total ingrowth of 8 above regarding our intent in our use of 4 to 8 percent of fisher habitat would be percent on the combined ownerships OGSI–80. OGSI–80 stands are meant to lost to wildfire over the next 40 years in over the 20-year analysis period) within represent mature forest stands with old- the NCSO portion of the DPS, based on the combined provinces of the Oregon forest remnants. The OGSI–80 threshold our analysis done in the draft species Klamath, California Klamath, California represents the general point in the forest report (Service 2014, p. 64). That Coast Range, and California Cascades succession time scale when forests in analysis was done by overlaying within the NWFP area of the DPS. the NWFP area begin to develop stand mapped fisher habitat (as determined Regarding the reference to Powell et al. structure associated with older forest through modeling) with severity data (2019, p. 25), we have incorporated their (Davis et al. 2015, p. 18, Figure 2) and from fires that had occurred from 1984 assessment of the status of the NSN includes older forest stands on that to 2011. We updated that analysis to reintroduced population into our succession time scale as well. For stands include more recent fires in the NCSO analysis. to meet the OGSI–80 threshold, they area (data from 2008 to 2018) and found (41) Comment: One commenter stated had to have greater than 10 percent that 7 percent of fisher habitat was lost that habitat trends in the HCP/CCAA canopy cover and meet minimum tree to high-severity wildfires during that covered lands within the NCSO will be and log size criteria, depending on the time period. Davis et al. (2015, pp. 30– stable to increasing over the foreseeable vegetation zone (Service 2016, p. 102). 31, Tables 6 and 7) looked at loss of future. Combined, these habitat trends For the Douglas-fir and white fir/grand OGSI–80 stands to wildfire from 1993 do not support a habitat-related fir forest vegetation zones, which through 2012, and their results differ likelihood of endangered status in the comprise much of the NCSO, OGSI–80 from ours likely for several reasons, foreseeable future. stands had to have at least one large live with the primary one being that they Our Response: Upon further analysis tree greater than 75 cm (29.5 in) dbh or looked at a different time period than and consideration of comments, we an average stand diameter greater 37.5 we did and did not capture more recent have determined that the NCSO DPS is cm (14.25 in) dbh. In addition, stands fires. In addition, their analysis did not not in danger of extinction in the had a minimum snag size of 50 cm (19.7 include portions of the NCSO DPS that foreseeable future. in) dbh and minimum log diameter of are outside of the NWFP area. 25 cm (9.8 in) (Davis et al. 2015, pp. 17– While forest ingrowth is expected to Implementation of Specific 18, Table 5). Although average size of increase in the coming decades, so is Conservation and Recovery Actions trees and snags used by fishers are often loss of habitat to wildfire. Hence, we (42) Comment: One commenter substantially larger than the minimum cannot conclude whether or not requested implementation of specific tree and snag diameters used to define ingrowth will fully compensate for conservation or recovery actions for OGSI stands, structures of this size have projections of loss of fisher habitat. fishers throughout the West Coast been used by resting and denning Upon reconsideration of the threats and States, including research and fishers in study areas in the DPS (e.g., the current condition of the NCSO DPS, management activities that would Lofroth et al. 2011, pp. 38, 52, 57, 78). we have determined that the NCSO DPS improve the overall landscape for As we acknowledged in the vegetation of fisher is not in danger of extinction fishers. The actions (e.g., cessation of management section, OGSI–80 does not throughout its range, nor likely to logging and trapping) were represent all fisher habitat, and it may become so in the foreseeable future. recommended to the Service because define areas that are not used by fishers, (40) Comment: One commenter stated the commenter believed they would but it fairly represents trends through that habitat trend analysis based on ensure the long-term conservation of the time of forest structures used by fishers. OGSI–80 is inadequate to fully describe fisher. (39) Comment: One commenter stated fisher habitat ingrowth. Growth is Our Response: We appreciate the that the proposed rule seems to occurring on all lands excluded from recommendations provided to conserve significantly overstate the threats to the OGSI–80 definition, yet growth is fishers and their habitat. Although no NCSO population and the cited data recognized on Federal lands only for the comprehensive strategy for fishers in the seems contradictory. Specifically, the OGSI–80 type. Growth on remaining West Coast States exists, we rule states that fire is removing 8 occupied Federal lands and private acknowledge conservation measures, percent of habitat/decade, yet the OGSI– lands is acknowledged, but its strategies, and actions that may benefit 80 analysis shows only a 1 percent loss/ importance is not considered. The fisher conservation in this rule. We also decade, if that, because of ingrowth Service should consider the recognize that specific management (which is ignored when describing implications of estimated future habitat activities can increase forest resiliency, removal by wildfire). The rule further ingrowth and fisher population and although there may be short-term states that ingrowth is expected to response (see Powell et al. 2019 final negative effects to fishers, certain increase in the coming decade, which report, p. 25). actions are likely to have an would seemingly more than compensate Our Response: We are not using overarching, net beneficial impact for for any loss from any of the disturbances OGSI–80 to quantify the amount of the conservation of fishers in this DPS. evaluated. fisher habitat ingrowth. It is a means to Our Response: We have revised our assess the trends of those old-forest Other Stressors discussion of wildfire threats to clarify structural components used by fishers (43) Comment: One commenter took the distinction between the Davis et al. throughout the DPS (see our responses issue with the following statement from (2015, entire) analysis of loss of OGSI– above). Our analysis accounted for the 2019 Revised Proposed Rule: ‘‘Now,

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these small populations of Pacific Fisher DPS) as an endangered or threatened species that inhabit forested lands. The are threatened by the use of toxic species. We use information from many third commenter also claimed that the rodenticides by marijuana growers, and different sources, including articles in 2019 Revised Proposed Rule did not increasing fire severity exacerbated by peer-reviewed journals, scientific status explain why the variety of existing climate change, along with loss of surveys and studies completed by regulatory mechanisms and voluntary habitat due to logging.’’ The commenter qualified individuals, Master’s thesis conservation measures are not at a scale states that increasing fire severity research that has been reviewed but not or magnitude sufficient to ameliorate exacerbated by climate change and loss published in a journal, other the primary significant threats. of habitat due to logging are theory only, unpublished governmental and Generally, these commenters stated or and that only rodenticide is the real nongovernmental reports, reports implied that we could not reach a threat. The commenter asserts that no prepared by industry, personal conclusion to list the species as significant climate change has taken communication about management or endangered or threatened when no place in the western Cascades since other relevant topics, conservation plans analysis under the PECE Policy or a 1650 and that there has been little to no developed by States and counties, cumulative effects analysis is logging taking place that affects the biological assessments, other conducted. habitat in question. Protection of fisher unpublished materials, experts’ Our Response: Upon determining that from the threat of poisoning due to toxic opinions or personal knowledge, and our status assessments would be rodenticides can, and should be, done other sources. We have relied on conducted individually on the NCSO by local ordinance, not by putting our published articles, unpublished DPS and SSN DPS, we then evaluated lands at risk from further research, habitat modeling reports, threats and any potentially ameliorating mismanagement by restricting activity digital data publicly available on the measures specific to each. For the NCSO and efforts to reduce current internet, and the expert opinion of DPS, as discussed above in its specific catastrophic fuel loads. The commenter subject biologists to aid in the Determination section, our analysis then went on to state that the true determination that the SSN DPS of found that the cumulative effect of danger to fisher is, and will continue to fisher meets the definition of an threats acting on the DPS at their be, catastrophic wildfire, and endangered species. current scale and magnitude did not management efforts for that purpose Also, in accordance with our peer cause the DPS to be in danger of must continue unimpeded. review policy published on July 1, 1994 extinction throughout all or a significant Our Response: Our threats analysis (59 FR 34270), we solicited peer review portion of its range, now or in the considered the best available science of the 2014 Species Report (Service foreseeable future, especially given the and considered them holistically when 2014, entire) from knowledgeable DPS’s overall resiliency, redundancy, making our final decision (see Threats individuals with scientific expertise that and representation. While we sections, above, for specific information included familiarity with the species, acknowledged and evaluated various about each threat). In addition, we the geographic region in which the regulatory mechanisms and recognize the importance of fuels species occurs, and conservation conservation efforts, and the potential reduction treatments that promote forest biology principles; their feedback was benefits they may provide to the DPS, heterogeneity while retaining structural incorporated into the 2016 final Species we did not rely on them for our elements important to fishers (for Report (Service 2016, entire), which conclusion that the NCSO DPS did not example, see Voluntary Conservation remains the foundation of our research meet the definition of either an Measures section, above). along with our additional analysis endangered or threatened species. As presented in the 2019 Revised Proposed such, no PECE analysis was necessary. Policy Rule and this final rule. Additionally, For the SSN DPS, our analysis found (44) Comment: One commenter we requested comments or information that the cumulative effect of threats asserted that we should more closely from other concerned governmental acting on the DPS at their current scale evaluate the five listing factors to ensure agencies, Native American Tribes, the and magnitude do cause the DPS to be that we are acting on the basis of the scientific community, industry, and any in danger of extinction throughout all of best scientific and commercial data other interested parties over multiple its range, in light of the anticipated available, rather than speculation or comment periods for both the 2014 effect of the identified threats on the supposition. Proposed Rule and the 2019 Revised DPS’s overall resiliency, redundancy, Our Response: Our Policy on Proposed Rule (see Previous Federal and representation. Our analysis Information Standards under the Act Actions, above). Comments and included consideration of any potential (published in the Federal Register on information we received helped inform benefits provided to the SSN DPS by July 1, 1994 (59 FR 34271)), the this final rule. Also, we revisited our existing regulatory mechanisms, as well Information Quality Act (section 515 of threats analysis and determined that the as potential benefits that may result the Treasury and General Government NCSO DPS is not warranted for listing. collaterally from existing voluntary Appropriations Act for Fiscal Year 2001 (45) Comment: Three commenters conservation efforts that were not (Pub. L. 106–554; H.R. 5658)), and our stated that our discussion of the PECE developed for fisher conservation. In associated Information Quality Policy in the proposed rule was addition, we considered the benefits Guidelines (www.fws.gov/ insufficient, and asserted that we should resulting from an existing voluntary informationquality/), provide criteria conduct a PECE analysis. Two of these conservation strategy, while noting that and guidance, and establish procedures commenters stated that conducting this changed circumstances arising from tree to ensure that our decisions are based analysis would result in a decision that mortality events in the range of the SSN on the best scientific data available. the species is not warranted for listing. DPS will require revisions to some of They require our biologists, to the extent The third commenter also claimed that the strategy’s conservation measures. consistent with the Act and with the use we failed to consider numerous existing While all of the conservation efforts of the best scientific data available, to conservation efforts (e.g., MOUs or identified are being implemented and use primary and original sources of HCPs that address wildfire risk and are effective in some measure, and information as the basis for enforcement programs) that were therefore do not require a PECE recommendations to list a species (or developed to benefit fishers and other analysis, we found that they are not

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ameliorating the threats such that the endangered in a significant portion of its (50) Comment: One commenter stated SSN DPS did not meet the definition of range. that Green et al. (2019b) (as yet an endangered species. Our Response: Please see our unpublished) acknowledged that their (46) Comment: One commenter response to Comment 14 regarding the results only describe a short-term claimed that we did not explain what DPSs analyzed for this effort. As situation and confined speculation new scientific and commercial presented herein, our analysis of the about implications to their discussion information was developed between the NCSO DPS indicated that it was not in section. The 2019 Revised Proposed 2016 withdrawal (81 FR 22710, April danger of extinction throughout all of its Rule did not acknowledge that some of 18, 2016) and the 2019 Revised range, nor likely to become so in the the fishers displaced by fire may have Proposed Rule. The commenter stated foreseeable future. Upon reaching that survived to emigrate and may not have that we changed our position regarding conclusion, we conducted an analysis to been lost to the larger regional the efficacy and desirability of see if there were any portions of the population. The commenter also stated establishing conservation agreements NCSO DPS that warranted further that the proposed rule did not even though developing and adopting consideration as being in danger of acknowledge or evaluate the overlap in these types of agreements has expanded extinction or likely to become so in the credible interval values from the post- over time. foreseeable future in any significant fire and pre-fire population estimates, Our Response: The Summary of portion of its range. We did not find any nor that the upper credible value post- Changes section of the 2019 Revised such portion, and concluded that the fire estimates approached the mean pre- Proposed Rule noted new information NCSO DPS is not in danger of extinction fire estimates (see Green et al. 2019b, since completion of the 2016 final or likely to become so in the foreseeable Table 2 and Figure 2). The commenter Species Report (Service 2016, entire) future in any significant portion of its asserted that the proposed rule that we evaluated in that proposal. Our range. Regarding the SSN DPS, our uncritically applies this estimate of analysis of all new information since the analysis indicated it was in danger of post-fire loss to the analysis that 2016 final Species Report was extinction throughout all of its range, concluded there has been a 7 percent summarized and cited where applicable and therefore did not conduct an SPR loss in habitat since 2008. The in the 2019 Revised Proposed Rule and analysis. commenter claimed that these this final rule, including new Population Estimates oversights create unacknowledged information received during the public uncertainty as to the validity and comment periods on the 2019 Revised (49) Comment: The proposed rule application of this estimate, Proposed Rule. incorrectly states that the Hoopa compounded by issues with the 2014 With regard to conservation population was declining during 2005– modeling that was addressed in agreements, we heavily rely on 2012 (84 FR, at 60285, column 2, comments at that time, but not voluntary conservation efforts to November 7, 2019). This conclusion is acknowledged in the 2019 Revised provide for the conservation and aid in not valid because reported lambda Proposed Rule. recovery of listed species. As stated confidence intervals overlapped 1.0. Our Response: We elaborate more on above, we have previously and continue The relevance of these data 7 years later Green et al. (2019b, entire) in this rule, to believe that our relationship with is not evaluated. Also, as noted in noting the observation that the post-fire private, State, tribal, and Federal comments on the 2014 listing proposal, population estimates have confidence landowners is imperative for the this decline only brought the Hoopa intervals that overlap with pre-fire conservation of fishers. We intend to population from an atypical high estimates, as well as the uncertainties in continue to work cooperatively with density to a density similar to other the ultimate fate of fishers in response partners and assist where possible. populations in the surrounding region, to wildfire. (47) Comment: One commenter a fact not noted in the rule. Regarding our evaluation of fisher claimed that the Revised Proposed Rule Our Response: While there is habitat loss to wildfires and the failed to provide a rational explanation uncertainty in concluding whether the commenter’s assertion that we for changing a conclusion (in the 2016 population is increasing or decreasing ‘‘uncritically’’ applied the estimate of withdrawal) that none of the threats given that the lambda confidence post-fire habitat loss in Green et al. were resulting in species-level impacts. intervals overlap 1, the lambda value of (2019b, p. 6) to that analysis, we are Additionally, the commenter asserted 0.992 for the Hoopa study is a statistic referring to the authors’ definition of that we eliminated discussion of that indicates a declining population high-severity fire, which is a basal area species-wide threats and instead argued during the time period measured. We do mortality of greater than or equal to 50 that individual-level threats not have additional population data percent. We acknowledge that fishers cumulatively rise to the level that listing from that study area to indicate the may begin moving about these stands is required without showing how each population trend since 2012. Regarding within a decade or two after fires once of the potential threats actually affects the decline from an ‘‘atypical high stand growth is initiated. However, our the species. density’’ to a level similar to other fisher use of the Green et al. (2019b, p. 6) Our Response: In this final rule, the populations in the area, the commenter definition of high-severity fire for the Service has examined again the threats is referring to Matthews et al. (2011, p. purposes of quantifying the acres of and impacts to the fisher populations, 72) where fishers declined from a fisher habitat that may be unavailable to and that analysis has led to the density estimate of 52 (per 100 km2 fishers in the short term is a reasonable conclusions and rationale supporting (38.62)) to 14 between 1998 and 2005. approach and is not inconsistent with this final determination. Addressing the This decline preceded the 2005 to 2012 observations of fisher avoidance of areas commenter’s concern, our rationale in analysis. We do not know whether the with less than or equal to 30 percent the Threats sections in this final rule slight population decline observed canopy cover (Spencer et al. 2016, p. 10, explains how the various threats impact between 2005 and 2012 is a footnote 7). the species. continuation of the overall decline from The use of the fisher habitat model (48) Comment: One commenter 1993, a reflection of a population that is continues to remain the best available argued that we should have analyzed currently fluctuating around carrying science regarding a large-scale map of whether the West Coast DPS of fisher is capacity, or some other phenomenon. fisher habitat across the fisher range.

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The comments and responses regarding population on Stirling.’’ Although this understand the technical basis for the the fisher habitat model in the 2016 study differs from the Higley and Green Service’s conclusions. Withdrawal do not lead us to conclude studies in that it was initiated in an area Our Response: For population that our assessment of habitat loss was newly occupied by fishers, it was of monitoring studies, we have moved flawed, particularly because it was done similar duration to both of them and the away from discussing confidence at the DPS-wide scale. We cannot know population size was similar to Higley et intervals around lambda, preferring whether the estimate of 7 percent of al. (2019) and larger than that of Green instead in this final determination to fisher habitat lost based on modeling is et al. (2019b). The conclusions from discuss the fluctuations in lambda we precise, but it is a reasonable estimate Powell et al. (2019) are worthy of see and how they likely represent given the landscape-scale application of qualified evaluation in an objective normal fluctuations of a population at or the fisher habitat model. assessment of fisher population trend in near carrying capacity (see NCSO (51) Comment: One commenter NCSO. Current Condition, above). pointed out that the 2019 Revised Our Response: We incorporated (56) Comment: One commenter noted Proposed Rule concedes that it is information from Powell et al. (2019, that even though one catastrophic unknown whether fisher populations entire) regarding the growth trend of the wildfire damaged habitat for several are stable or declining. The commenter Stirling (NSN) reintroduced population individual fishers, it would be improper asserted that the proposed rule should into our analysis for this rule. for the Service to use one event as evaluate the implications of the lack of (53) Comment: One commenter stated justification for listing a species. conclusive information that fishers in that available scientific information Instead, the Service should be reviewing the DPS are declining. Additionally, indicates that fisher population trends the entire administrative record, and they stated that the lack of conclusive are not declining and, in Northern affording one event the weight it evidence of decline should increase the California, they likely are stable or deserves in terms of predicting overall burden of proof that the other threats are increasing. The commenter asserted that population trends for the species. indeed demonstrable, conclusive, and these trends have probably contributed Our Response: We have based our serious. According to the commenter, to the substantial expansion of the determinations for the NCSO DPS and given the substantial expansion of the species’ range within the last 9 years. the SSN DPS on the best scientific and range, the Service must also consider The commenter concluded that there is commercial data available. We whether the population size within the no evidence of declines at the evaluated threats to the species and NCSO and SSN subpopulations is likely population scale. assessed the cumulative effect of the to be expanding, and if there is no Our Response: In the Current threats under section 4(a)(1) of the Act. evidence of population decline, Condition section for the NCSO DPS in For the NCSO DPS, we determined that, evidence of effects of threats must be this final rule, we elaborate on in part, because of the population’s conclusive. population variability in general and widespread distribution combined with Our Response: To clarify the how that may affect any interpretation resiliency and redundancy, it did not statement relied upon by the of the available data on NCSO warrant listing. For the SSN DPS, we commenter, we stated in our 2019 populations. We are not aware of any concluded that, in part, the small Revised Proposed Rule that, based on substantial expansion beyond the NSN population size, combined with the information available regarding translocation and the subsequent growth substantial habitat loss as a result of population growth data, we could not of that subpopulation. recent tree mortality among other conclude that populations were stable, (54) Comment: One commenter stated factors, warranted listing as endangered. increasing, or declining. All three that the 2019 Revised Proposed Rule In conclusion, we have based our scenarios are plausible, given the describes significant uncertainty decisions on a multitude of factors, not available data. However, we also note regarding fisher population status and on a single event. trend using prior data, despite the that the lack of conclusive evidence of Rodenticides a decline is also not conclusive availability of scientific studies that evidence that there is no decline. The were developed with robust sample (57) Comment: Several commenters commenter further suggests that, in the design and effort. This commenter cited asserted that rodenticides face of inconclusive evidence for a multiple references for inclusion such (anticoagulants or neurotoxicants) are a population decline, we must then as Furnas et al. 2017 and Powell et al. significant threat to the DPS, and that provide conclusive evidence that threats 2019. we underestimated the risks to the acting on a species must be Our Response: We incorporated the species in the 2019 Revised Proposed demonstrable and serious. In response, population estimate of Furnas et al. Rule. Some of these commenters we reiterate that we did not conduct our (2017, p. 12) and the conclusions provided information on this threat, analyses using an assumption that regarding the NSN subpopulation into such as illegal grow site activity in populations are declining. We merely our analysis of the NCSO DPS (see the Oregon. Another commenter expressed presented the available information Current Condition section of the NCSO concerns related to staffing constraints regarding population growth, while at DPS analysis). We incorporated a on Federal lands that have delayed and the same time presenting our analyses of discussion of the fluctuating nature of likely will continue to delay cleanup how both threats and conservation populations over time and acknowledge activities. Another commenter was measures are likely to affect the viability the fisher’s ability to sustain concerned that emotional reaction of each DPS. populations within the DPS in the stimulated by the proposed rule’s (52) Comment: One commenter noted presence of ongoing stressors. description of the potential effects of that the proposed rule considers Higley (55) Comment: One commenter anticoagulant rodenticides and the et al. (2014) and Green et al. (2019b), but claimed that the Service changed its potential extent of this threat may does not evaluate other material in our interpretation of confidence intervals influence the perception of the actual possession, specifically Powell et al. with no rationale for the change. They magnitude of the effect to fishers. 2019, which stated, ‘‘Our best estimates request that the Service explain how to Additionally, the commenter claimed of survival and reproduction are interpret a confidence interval so the that the Service did not address an consistent with a stable or growing public and reviewing courts will important gap in present knowledge

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about anticoagulant rodenticides within Our Response: As discussed in the efforts on non-Federal lands (CCAAs the species’ range, i.e., the degree to general Exposure to Toxicants section and HCPs) mitigate and decrease the which exposure influences mortality of above, the data are mixed with respect threats to fishers from toxicants, further fishers within the DPS, which the to how legalization is affecting illegal articulating that these conservation commenter asserts should have grow sites on public lands. For example, measures aggressively prevent illegal substantial bearing on any conclusion some information shows that illegal drug growing that use anticoagulant about the magnitude of this threat. grow sites on National Forests have rodenticides. Our Response: Toxicants, especially decreased in States where marijuana Our Response: We do not have rodenticides, are a threat to fisher in was legalized (Klassen and Anthony information that allows us to compare both the NCSO and the SSN DPSs. And, 2019, p. 39; Prestemon et al. 2019, p. 1). and assess the distribution of illegal we agree that finding and cleaning up On the other hand, many law grow sites on private versus public after illegal grow sites is problematic enforcement officials have found no lands. Nor do we have information on from an ecological, funding, and staffing indication that illegal grow sites have how many acres may benefit from perspective. We also agree that the decreased with cannabis legalization, limiting access to private lands or description of toxicant poisoning elicits and it may in fact be increasing, in part information on how many patrols are an emotional response. At this time, our due to legalization providing an being added across what area and at evaluation of the best available effective means to launder illegal what frequency. Similarly, we do not scientific and commercial information marijuana (Hughes 2017, entire; Bureau have information that allows us to regarding toxicants and their effects on of Cannabis Control California 2018, pp. address how the voluntary conservation fishers leads us to conclude that 28, 30; Sabet 2018, pp. 94–95; Fuller measures may or may not be affecting individual fishers within both DPSs 2019, no page number; Klassen and illegal grow sites. Further, not all have died from toxicant exposure, Anthony 2019, p. 45). Illegal grow sites voluntary conservation efforts include fishers suffer a variety of sublethal appear to be dropping in number but are measures that address illegal grow sites effects from exposure to rodenticides, getting larger (impacting more fisher (e.g., the Oregon CCAAs). The job of and the potential for illegal grow sites home ranges) (Gabriel 2018, pers. preventing illegal grow sites across large within fisher habitat is high. But it is comm.). And, law enforcement actions areas is extremely difficult and comes difficult for us to accurately estimate the have caused illegal grow sites to with large staffing and resource needs. effects these rodenticides are having to disperse further which makes them Although we cannot quantify the fisher as a whole because we do not more difficult to locate (Gabriel 2018, effectiveness of these voluntary understand what proportion of the pers. comm.). At this time, it is difficult conservation measures at lessening the population is being negatively affected to reach conclusions about trends in the threat from toxicant exposure at illegal (i.e., mortality or sublethal effects). abundance and frequency of illegal grow grow sites, we do expect limiting access For the NCSO DPS, in spite of the sites this soon after legalization. will make it more difficult to establish ongoing impacts from toxicants, the (59) Comment: One commenter illegal grow sites. And increased patrols NCSO population seems to be claimed that it is valid to extrapolate (depending on the number of patrols withstanding this threat. For example, known levels of anticoagulant exposure and the scale of the landscape they are the NSN subpopulation has grown to to areas where little exposure research visiting) will act as a deterrent. We the point where the population is self- has occurred (e.g., Stanislaus National support voluntary conservation efforts sustaining, despite the fact that Forest), given the high rate of fisher’s to limit the impact of toxicant exposure rodenticide exposure rates are similar to exposure in the Southern Sierras. The from illegal grow sites to fisher. other areas in California (Gabriel et al. commenter also claimed that the risk to Range Expansion 2015, entire; Powell et al. 2019, p. 16). small population(s) from rodenticides And, fisher at EKSA in the Klamath undercuts any chance of population (61) Comment: Several commenters Mountains in California near the Oregon recovery. claimed that the range of the fisher in border do not show a long-term decline Our Response: Illegal grow sites are the NCSO subpopulation expanded. (Powell et al. 2014, p. 18), despite the distributed as discrete patches Some of these commenters provided fact that illegal grow sites are in the throughout much of the NCSO and SSN maps delineating occupied fisher range area. For the SSN DPS, because this DPS DPSs. In the absence of data, it is (as determined by CDFW in 2010 and is much smaller, the lethal and reasonable to assume the opportunity 2015), fisher location data from 1980 to sublethal effects of toxicants to for fisher to be exposed to toxicants is 2019, and the Service’s West Coast individuals have the potential to have similar across much of the NCSO and Fisher DPS boundary in support of their population-level effects and reduce the SSN DPSs (except at higher elevations conclusion. Further, they questioned the resiliency of the DPS as a whole. where the growing season is shorter and magnitude of impact of purported (58) Comment: Two commenters it is harder to grow marijuana). We also threats in light of this expansion. stated that rodenticides are subject to agree for the SSN DPS, because this DPS Our Response: The maps provided by increased regulation in Oregon and is much smaller, the lethal and the commenters were developed using California; although a timeframe for this sublethal effects of toxicants to data sets from different time periods and comment was not included, we assume individuals have the potential to have are not directly comparable. Further, we the commenters were referring to the population-level effects and reduce the did not receive data during the 2019 time since recreational marijuana use resiliency of the DPS as a whole. As to Revised Proposed Rule comment became legalized in Oregon (2015) and the comment stating the risk to small periods to suggest that the range of the California (2016). Further, one population(s) from rodenticides fisher had expanded. The data we did commenter argued that legalized and undercuts any chance of population receive confirmed what we understood increased regulation will reduce recovery, no further evidence was about the distribution of fisher and trespass and improve environmental provided to support this claim. It is the presented in our 2019 Revised Proposed cleanup and restoration of public lands intent of the ESA that species will Rule. We find that the fisher NCSO DPS damaged by illegal marijuana eventually be recovered. is widespread and common to the point cultivation (although no data was (60) Comment: One commenter where listing is not warranted at this provided by the commenter). asserted that voluntary conservation time.

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Cumulative Effects fisher. These influences can be either Coast States; we note there could always (62) Comment: One commenter positive (e.g., appropriate vegetation be more data for most analyses to help asserted that the Service’s analysis of management that may reduce forest lessen uncertainties. The determination for the NCSO DPS cumulative effects was missing from the vulnerability to large-scale tree diseases is that listing is not warranted. proposed rule. Further, the commenter or insect outbreaks) or negative (e.g., Regarding the SSN DPS, at this time the claimed that the threats analysis did not climate change influencing the potential best available scientific and commercial support the Service’s determination that for high-severity wildfires). In this information suggests that the the existing regulatory mechanisms are context of competing threat influences, cumulative impact of the stressors not sufficient to address the cumulative the commenter further suggests the need adversely affecting the SSN DPS of impacts of the primary threats, to provide a direction forward for those attempting to recover listed species, as fisher is such that listing the SSN DPS specifically referring to exposure to threats are not assigned any ‘‘values.’’ of fisher as an endangered species is toxicants and habitat loss and While we do not assign values to threats appropriate. Of greatest concern at this fragmentation due to wildfire and when conducting a status assessment for time are stressors related to illegal vegetation management. Additionally, a species, we identify those threats that rodenticide use, increasing high-severity and in contrast, we note our receipt of may have the most significant impacts wildfires, and prolonged droughts that a peer review comment on the 2014 to the species’ viability. However, we exacerbate the effects from wildfire, Proposed Rule indicating that also note that efforts to recover a forest insects, and tree disease. For all synergistic (cumulative) effects, species, once determined it warrants of these reasons and as detailed in the primarily climate change and its listing, are subsequently developed in Determination section of this document, secondary effects from wildfire, pose the light of all the identified threats, where we conclude that the SSN DPS of fisher most serious long-term threat to fisher they occur within the species’ range, meets the definition of an endangered populations, especially in California. and how they interact with each other species under the Act. Our Response: In evaluating the status and the species and its environment. (65) Comment: Two commenters of a species or DPS, we identify both the Recovery actions may therefore be urged the Service to list the NCSO threats acting upon it and any location- or habitat-specific, and address subpopulation as a threatened species conservation efforts or mechanisms that the competing nature noted by the and SSN subpopulation as an may ameliorate those threats. In commenter. endangered species, the latter because identifying threats, we describe them in they believe protections for this small, the context of the five listing factors, Threatened v. Endangered isolated subpopulation are insufficient and evaluate the scale and magnitude of (64) Comment: Several commenters to prevent its extinction and threats are their effect on the species in light of urged the Service to list the proposed more immediate (e.g., high-severity their impacts on the resilience, West Coast DPS of fisher as either wildfires and drought within its narrow redundancy, and representation of the endangered or threatened, or urged range have increased in recent years). species. A species’ overall status with listing without specifying which status Our Response: Please see our regard to whether it warrants listing is is most appropriate. In contrast, several response to Comment 14 and Comment based on our assessment of the other commenters urged the Service not 64, and the analysis for each DPS cumulative effect of all threats and to list the taxon. Some comments urging contained in this document. ameliorating measures combined. This the Service not to list the DPS are either (66) Comment: One commenter stated cumulative analysis is found in the focused on not listing specifically in the that the Rogue-River and Siskiyou area, Determination section of both our 2019 State of Oregon or not listing the NCSO where the Ashland fisher population Revised Proposed Rule and this current subpopulation. All of these comments resides, is recognized as a rich document. with varied opinions are similar in environment of floristic biodiversity. (63) Comment: One commenter content and rationales to those received The commenter stated that habitat claimed that little, if any, actionable on the 2014 Proposed Rule. characteristics deemed important for measures exist that could address the Our Response: Sections 3(6) and 3(20) fishers are equally critical for smaller individual-level threats identified by the of the Act, respectively, define an mammals and birds that rely on similar, Service in order to recover the species. endangered species as one that is in if not exact, habitat requirements, and The commenter asserted that those who danger of extinction throughout all or a that species of special concern that also wish to help the species recover have no significant portion of its range, and a cohabit this region, such as the northern clear direction forward, because the threatened species as one that is likely spotted owl, the Humboldt marten, and threats described in the 2019 Revised to become an endangered species within the northern flying squirrel, would Proposed Rule are not assigned any the foreseeable future throughout all or certainly benefit from the overarching values and often are inconsistent with a significant portion of its range. Our protection of fisher resources that this one another. The commenter claimed task in evaluating a species for a listing could provide. Further, the that many of these identified threats are potential listing under the Act is to commenter claimed that protection of competing in nature. For example, the determine whether that species meets habitat characteristics for both predator commenter stated that severe wildfire the definition of either a threatened and prey species would retain an can often be prevented by proper species or an endangered species, based ecological balance important to the vegetation management. Similarly, the solely on the best scientific and functionality of forest health and commenter stated that vegetation commercial data available. For this successional stages (e.g., insect management can help prevent losses reason, comments merely expressing population control and seed dispersal due to forest insects and tree diseases by support for or opposition to a proposed roles by mammalian and avian species). preventing widespread loss of forest listing, without supporting scientific Our Response: We cannot base our vegetation. rationale or data, do not meet the listing decision on the benefits of Our Response: Threats acting on the standard of information required by habitat protection to other plants and fisher are complex and interact with section 4(b)(1)(A) of the Act. There is animals. Section 4(a)(1) of the Act each other such that some threats can significant information available on directs us to ‘‘determine whether any influence how other threats act on the fishers and their habitat in the West species is an endangered species or a

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threatened species because of any of the acknowledge the beneficial effects on habitat features. The commenter stated following factors: (A) The present or fisher habitat associated with forest and that timber harvest on Federal lands threatened destruction, modification, or fuels management. under existing management plans curtailment of its habitat or range; (B) Our Response: We acknowledge the allows the removal of live and dead overutilization for commercial, benefit of carefully applied fuels woody features that are important recreational, scientific, or educational reduction strategies in reducing wildfire components of denning habitat. purposes; (C) disease or predation; (D) risk while also retaining fisher habitat Furthermore, the commenter asserted the inadequacy of existing regulatory structural elements in the final Species that timber harvest does not provide the mechanisms; or (E) other natural or Report (Service 2016, pp. 60, 68–69). same ecological effects of fire, also manmade factors affecting its continued We further acknowledge in this rule noting that timber harvest, as currently existence.’’ We recognize the ecological conservation measures designed to practiced by the Forest Service and value of the Rogue River and Siskiyou reduce fire risk while also retaining BLM, can remove and downgrade fisher area, as well as its contribution to fisher habitat structural elements. habitat. fishers and other plants and animals. (70) Comment: One commenter stated Our Response: In this rule and in the However, this information did not that the Service provides no analysis or final Species Report (Service 2016, pp. contribute to our overall determinations supporting citations for its conclusory 60–77, 98–111), we acknowledge the on the status of the fisher. statements that removal of ‘‘snags and wide variety of effects on fisher habitat other large habitat structures’’ for safety as a result of wildfire and vegetation Tree Mortality reasons is a threat to the DPS. management, as well as the different (67) Comment: One commenter Our Response: For clarification ecological effects of fire vs. vegetation expressed concern that canopy cover purposes, we use the term ‘‘threat’’ to management. We also recognize that loss from tree mortality will increase refer in general to actions or conditions timber harvest on Federal lands has fragmentation and reduce female fisher that are known to or are reasonably removed, and will continue to remove, gene flow. The commenter claimed that likely to negatively affect individuals of fisher habitat and have factored that tree mortality is resulting in extensive a species, including alteration of habitat information into our decision, management along road corridors, or required resources. Because the fisher concluding that such harvest results in which may further impede connectivity. uses snags and large trees for resting and removal of a small portion of fisher Our Response: We discussed the best denning, their removal would have a habitat. available science regarding tree negative effect on the species and is, by (73) Comment: One commenter stated mortality in both the NCSO DPS and this definition, a threat. However, the that the Service is inconsistent with our SSN DPS of this final rule. mere identification of a threat does not handling of vegetation management as a necessarily mean that the species meets tool to reduce the risk of large-scale, Vegetation Management the statutory definition of an high-severity wildfire. The commenter (68) Comment: One commenter stated endangered or threatened species. For noted that we conclude it is a threat to that the Revised Proposed Rule fails to both DPSs, we weighed the cumulative fisher in the proposed rule, yet in the justify wildfire suppression and effects of the threats, along with existing recent finding for the California spotted vegetation management activities as conservation measures, to make our owl, the Service concluded that threats. The commenter asserted that the determination. vegetation management was necessary Service should evaluate the benefits (71) Comment: One commenter stated to reduce the overall potential for associated with these activities, that over the last 5 years, a variety of wildfires to be detrimental to California including the decreased risk of severe logging projects within the fisher’s range spotted owl habitat and ultimately wildfire when vegetation is managed have degraded habitat. The commenter concluded that the owl did not warrant appropriately. claimed that if current trajectories listing. Our Response: Fishers use managed continue, we can expect to see more Our Response: The Service relied on landscapes, particularly when key habitat loss through logging. conservation efforts to reduce large- elements such as den and rest trees are Our Response: We recognize that scale high-severity fires within the range retained and when forest heterogeneity timber harvest is and will continue to be of California spotted owl that included is promoted (see Vegetation an ongoing activity within the fisher specific measures to identify the greatest Management). There can be benefits DPSs. However, it affects a small risks to the owl’s known occupied associated with vegetation management portion of conditions used by fishers (as activity centers and prioritize fuels including decreased risk of wildfire; represented by the OGSI–80 condition reduction work that helps to protect the however, there are potential trade-offs to in the NCSO DPS). For the NCSO DPS, greatest number of activity centers on these activities (e.g., loss of fisher we concluded that timber harvest Federal and private lands, while not habitat to reduce wildfire risk in fisher (vegetation management), combined reducing the quality of the highest habitat), which should be weighed with other analyzed threats and the quality owl habitat in treated areas. carefully when implementing such existing population condition, are not While these California spotted owl actions. acting on the DPS to the degree that it conservation measures benefit fisher, (69) Comment: One commenter meets the definition of endangered or they do not explicitly describe how claimed that wildfire mitigation threatened under the Act. Conversely, implementation will benefit fisher. activities, which can include vegetation for the SSN DPS we concluded that Since the 2019 Revised Proposed Rule, management, can be effective in long- timber harvest (vegetation management), we received new MOUs designed to term preservation of fisher habitat. combined with other analyzed threats reduce high-severity wildfire that Meanwhile, the commenter pointed out and the existing population condition, include specific conservation measures that other Federal agencies, such as the are such that the DPS meets the to protect fisher habitat within the Forest Service, have recognized that definition of endangered under the Act. NCSO DPS. We have incorporated this active forest management is necessary to (72) Comment: One commenter new information into our analysis. address threats from widespread tree observed that the proposed rule (74) Comment: One commenter stated mortality. Overall, the commenter discusses the effects of fire on fisher that the Service acknowledges in the asserted that the Service failed to habitat and the extended time to recover 2019 Revised Proposed Rule that it has

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no basis to conclude that fuels discussions of short- and long-term Suppression above, our analysis reduction, restoration thinning, or effects of wildfire on fisher habitat. addressed potential habitat loss from indeed any other management activity is Further, the 2016 final Species Report wildfires. The analysis completed by a threat to the DPS; there is no includes a discussion of fisher re- Powell et al. 2019 (entire) more information on how different vegetation occupancy of the 1992 Fountain Fire generally addresses area burned rather management activities affect fisher area (Service 2016, p. 66). Neither the than the potential fisher habitat loss subpopulations and their persistence 2019 Revised Proposed Rule, this final within that area. Therefore, these two within the DPS’s range. The commenter rule, nor the 2016 final Species Report methods are not directly comparable. also claimed that the Service proceeds assumes that habitat loss as a result of (77) Comment: Multiple commenters to conclude that some forms of high-severity fire is permanent. The indicated that we did not analyze the vegetative management, without 2019 Revised Proposed Rule and this impact of fuel breaks and fuel reduction specifying which kinds, ‘‘may threaten final rule also consider vegetation projects occurring under MOUs for the fisher.’’ The commenter asserted that, ingrowth (see Vegetation Management, northern spotted owl and the California based on this ‘‘slim reed,’’ the Service above) and its ability to represent trends spotted owl across Federal, State, and then identified vegetative management in forest structural conditions used by private ownerships. as a threat to the species, specifically fishers. Therefore, we have already Our Response: The final rule includes including fuels reduction and determined that habitat affected by fire an updated discussion of the MOUs (see restoration thinning. is not permanent and that fishers may Existing Regulatory Mechanisms and Our Response: As noted in our re-occupy burned areas in the Voluntary Conservation Measures) analyses, a wide range of activities fall foreseeable future. suggested by the commenter. In under the broad term, ‘‘vegetation (76) Comment: One commenter stated summary, the MOUs have not been in management.’’ Thus, fisher response to that the 2019 Revised Proposed Rule place very long; therefore, it is difficult vegetation management activities can does not make a conclusive statement to understand their effectiveness and vary, depending on the type of activity regarding the degree to which wildfire subsequently their actual benefits to and its duration and magnitude (Service threatens fisher. The commenter cites fishers and their habitat. However, we 2016, p. 110; see Vegetation Powell et al. (2019, pp. 23–27) and view these MOUs as important Management section). Our analysis of examples of fisher reoccupying burned collaboration tools that can achieve the the effects of vegetation management areas (e.g., Fountain Fire) as a reason to conservation needs of the fisher across (changes in OGSI–80 stands or in GNN reconsider the threat of extinction from large landscapes. We will continue to analyses; actual loss of fisher habitat wildfire within the foreseeable future. monitor these efforts into the future. within the SSN) is somewhat driven by Specific to Powell et al. (2019), the (78) Comment: One commenter is the features measured in the data sets commenter claimed that extinction risk concerned that entire populations and we used. That is, in the case of OGSI– for fisher did not exceed 0.25 unless subpopulations of fisher could be 80 stands, activities that reduce canopy more than 40 percent of the simulated eliminated by stochastic wildfire events cover to below 10 percent or remove area burned, with a decrease in risk unless steps are taken to increase large structural elements would be when SPI management was included. protections. Two other commenters are recorded as a reduction in that stand Thus, the commenter asserted there is a similarly concerned that climate-related condition. Such activities may include low risk of extinction when modeled at factors are predicted to increase wildfire clearcuts and some fuels reduction a high rate of short-term, high-intensity activity; thus, the commenters stated activities, but likely not thinning habitat loss. Lacking any analysis, the that forest management is a necessary activities. Hence, our analysis focuses commenter believed the conclusion tool to minimize the impacts and spread on those vegetation management should be that the reported rate of loss of wildfire. activities that likely have the greatest of habitat (7 percent over 10 years; Our Response: We agree that the effect on fishers in terms of removing citing 84 FR 60278, p. 60288, November impacts of wildfire are a significant canopy cover or structural elements. 7, 2019) is not likely to lead to concern for fisher (see Wildfire and These types of vegetation management endangered status in the foreseeable Wildfire Suppression section of this activities seem to have the greatest effect future. rule). We are optimistic that actions on fishers, although the portion of the Our Response: Contrary to the implemented under voluntary DPS affected by vegetation management comment, the 2019 Revised Proposed conservation measures (e.g., MOUs, is small. Rule and this final rule include CCAAs, HCPs; see Existing Regulatory statements regarding the degree of Mechanisms and Voluntary Wildfire impacts of wildfire on fisher, at the Conservation Measures section of this (75) Comment: One commenter stated species level and for both rule), including forest management will that the duration of impact from high- subpopulations (see Wildfire and provide protection of fisher habitat in severity wildfire is not adequately Wildfire Suppression). As we explain, the near and long term. addressed. In particular, the commenter the impacts are highly variable and (79) Comment: One commenter stated claimed that the Service assumes that depend on forest type, landscape that the analysis of wildfire was not habitat lost to high-severity wildfire is location, size, and intensity of the thoroughly evaluated. Specifically, the permanent, and therefore does not wildfire. The conclusions reached by commenter raised concerns about the consider effects into the foreseeable the commenter regarding data in Powell Service’s use of OGSI–80 to determine future. The commenter specifically et al. (2019, pp. 23–27) appear to be a less than 1 percent loss of habitat per stated that we failed to consider fisher extrapolations of data presented in decade from wildfire and an analysis re-occupancy of the 1992 Fountain Fire, figure 16 (Powell et al. 2019, p. 26). We conducted by the Service that showed a which was salvage-logged with little acknowledge the point the commenter 7 percent of high and intermediate retention of structures used by fisher. brings forward, but also note the model fisher habitat loss to wildfire since 2008. Our Response: The Wildfire and used by Powell et al. 2019 and the data Our Response: We have revised our Wildfire Suppression section of this rule used to determine the loss of habitat at discussion of wildfire threats to clarify and the 2016 final Species Report 7 percent per year are different. As we the distinction between the Davis et al. (Service 2016, pp. 62–66, 77) include describe in Wildfire and Wildfire (2015, entire) analysis of loss of OGSI–

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80 forest to wildfire and the analysis government-to-government basis. In Authors done by us to more directly assess fisher accordance with Secretarial Order 3206 habitat loss to wildfire. Please see our of June 5, 1997 (American Indian Tribal The primary authors of this rule are response to comments above and the Rights, Federal-Tribal Trust the staff members of the Unified Wildfire and Wildfire Suppression Responsibilities, and the Endangered Interior’s California-Great Basin section of this rule. Species Act), we readily acknowledge Regional Office. our responsibilities to work directly List of Subjects in 50 CFR Part 17 Required Determinations with tribes in developing programs for National Environmental Policy Act (42 healthy ecosystems, to acknowledge that Endangered and threatened species, U.S.C. 4321 et seq.) tribal lands are not subject to the same Exports, Imports, Reporting and controls as Federal public lands, to recordkeeping requirements, We have determined that remain sensitive to Indian culture, and Transportation. environmental assessments and to make information available to tribes. Regulation Promulgation environmental impact statements, as In development of the 2014 Species defined under the authority of the Report, we sent letters noting our intent Accordingly, we amend part 17, National Environmental Policy Act to conduct a status review and subchapter B of chapter I, title 50 of the (NEPA; 42 U.S.C. 4321 et seq.), need not requested information from all tribal Code of Federal Regulations, as set forth be prepared in connection with listing entities within the historical range of below: a species as an endangered or the West Coast DPS of fisher, and we threatened species under the provided the draft Species Report to PART 17—ENDANGERED AND Endangered Species Act. We published those tribes for review. We also notified THREATENED WILDLIFE AND PLANTS a notice outlining our reasons for this the tribes via email to ensure they were determination in the Federal Register aware of the January 31, 2019, ■ 1. The authority citation for part 17 on October 25, 1983 (48 FR 49244). document in the Federal Register to continues to read as follows: Government-to-Government reopen the comment period on the Authority: 16 U.S.C. 1361–1407; 1531– Relationship With Tribes October 7, 2014, proposed rule to list 1544; and 4201–4245, unless otherwise the DPS as a threatened species. As we noted. In accordance with the President’s move forward in this listing process, we memorandum of April 29, 1994 will continue to consult on a ■ 2. Amend part 17.11(h) by adding an (Government-to-Government Relations government-to-government basis with entry for ‘‘Fisher (Southern Sierra with Native American Tribal tribes as necessary. Nevada DPS)’’ in alphabetical order Governments; 59 FR 22951), Executive under Mammals to the List of Order 13175 (Consultation and References Cited Endangered and Threatened Wildlife to Coordination With Indian Tribal A complete list of references cited in read as follows: Governments), and the Department of this rulemaking is available on the the Interior’s manual at 512 DM 2, we internet at http://www.regulations.gov § 17.11 Endangered and threatened wildlife. readily acknowledge our responsibility and upon request from the Yreka Fish to communicate meaningfully with and Wildlife Office (see FOR FURTHER * * * * * recognized Federal Tribes on a INFORMATION CONTACT). (h) * * *

Common name Scientific name Where listed Status Listing citations and applicable rules

Mammals

******* Fisher (Southern Sierra Pekania pennanti ...... U.S.A. (Southern Sierra E 85 FR [INSERT Federal Register PAGE WHERE Nevada DPS). Nevada, CA). THE DOCUMENT BEGINS], 5/15/2020.

*******

* * * * * Aurelia Skipwith, Director, U.S. Fish and Wildlife Service. [FR Doc. 2020–09153 Filed 5–14–20; 8:45 am] BILLING CODE 4333–15–P

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27181, 27183, 27184, 27186, 30 CFR 81...... 28550, 29381 46 CFR 27188, 27189, 27333, 27334, 948...... 27139 85...... 28140 30...... 27308 27337, 27339, 28523, 28897 86 ...... 28140, 28564, 29034 Proposed Rules: 150...... 27308 399...... 26633 88...... 28140 733...... 28904 153...... 27308 89...... 28140 736...... 28904 15 CFR 90...... 28140 842...... 28904 Proposed Rules: 91...... 28140 47 CFR 935...... 26413 922...... 25357 92...... 28140 64...... 26857, 27309 31 CFR 94...... 28140 76...... 26364 16 CFR 180...... 27346 208...... 25285 96...... 25309 Proposed Rules: 258...... 27348 Proposed Rules: Ch. 1...... 27191, 29359 32 CFR 271...... 26911 1...... 26438 300...... 27979 112...... 27157 2...... 26438 17 CFR 600...... 28564 144...... 27157 18...... 26438 721...... 26419 23...... 27674 199...... 26355, 27921 54...... 25380, 26653 200...... 25962, 28484 1027...... 28140 73...... 28586 227...... 27116 33 CFR 1033...... 28140 1036...... 28140 230...... 25962, 28484 100...... 26355 1037...... 28140, 29034 48 CFR 232...... 25962, 28484 117...... 26358 1039...... 28140 239 ...... 25962, 27116, 28484 165 ...... 26359, 26615, 28488 Ch. 1...... 27086, 27102 240 ...... 25962, 28484, 28853 1042...... 28140 1 ...... 27087, 27088, 27098 Proposed Rules: 270...... 25962, 28484 1043...... 28140 2...... 27087 100 ...... 26903, 27341, 28539, 274...... 25962, 28484 1045...... 28140 4...... 27101 29369 1048...... 28140 5...... 27088 Proposed Rules: 110...... 27343 1051...... 28140 8...... 27088 4...... 26378 117 ...... 28540, 28542, 28544, 1054...... 28140 9...... 27088 50...... 27955 28546 1060...... 28140 12...... 27088, 27098 210...... 28734 135...... 28802 1065...... 28140 13...... 27088 270...... 28734 138...... 28802 1066...... 28140 15...... 27088 153...... 28802 18 CFR 1068...... 28140 19...... 27088, 27101 35...... 27681 36 CFR 1090...... 29034 22...... 27087, 27088 25 ...... 27088, 27098, 27101 1253...... 26848 42 CFR 21 CFR 29...... 27098 1290...... 26848 888...... 26350 406...... 25508 30...... 27088 37 CFR 407...... 25508 50...... 27088 Proposed Rules: 409...... 27550 73...... 27340 52 ...... 27087, 27088, 27098, 202...... 27296 410...... 27550 573 ...... 26902, 27692, 28898 27101 Proposed Rules: 412...... 27550 1308...... 28899, 29359 Proposed Rules: 360...... 26906 413...... 27550 1401...... 29366 25...... 28596 39 CFR 414...... 27550 22 CFR 415...... 27550 111...... 27299 422...... 25508 49 CFR 120...... 25285 3040...... 27301 423...... 25508 171...... 27810 122...... 25285, 26847 3045...... 29324 424...... 27550 172...... 27810 123...... 25285 Proposed Rules: 425...... 27550 173...... 27810 124...... 25285 111...... 28917 431...... 25508 174...... 27810 129...... 25285 438...... 25508 175...... 27810 40 CFR 24 CFR 440...... 27550 176...... 27810 9...... 26617, 26617 457...... 25508 178...... 27810 5...... 27133 52 ...... 25291, 25293, 25299, 482...... 25508 180...... 27810 891...... 27133 25301, 25305, 26361, 27927, 483...... 27550 1333...... 26858, 26866 960...... 27133 28490, 28493, 28883, 29325, 484...... 27550 1570...... 25313 962...... 27133 29327, 29329, 29331 485...... 25508 Proposed Rules: 70...... 29329 25 CFR 600...... 27550 Ch. X...... 26915 81...... 29331 Proposed Rules: Proposed Rules: 131...... 28494 Ch. IV...... 26438 82...... 26902 180...... 29338, 29340 50 CFR 721...... 26617 44 CFR 17...... 26786, 29532 26 CFR Proposed Rules: 64...... 28499 91...... 27313 1 ...... 26848, 28867, 29323 9...... 28140 333...... 28500 219...... 27028 54...... 26351 50...... 26634 300...... 25315 Proposed Rules: 52 ...... 25377, 25379, 26418, 45 CFR 635...... 26365 1 ...... 25376, 27693, 28524, 26635, 26641, 26643, 26647, 146...... 29164 648...... 26874, 29345 28539, 29368 26907, 27344, 27976, 28548, 149...... 29164 660...... 27317, 27687 301...... 29368 28550, 28919, 29369, 29377, 155...... 29164 665...... 26622 29381 156 ...... 25640, 27550, 29164 679...... 27158 29 CFR 59...... 28140 158...... 29164 Proposed Rules: 2560...... 26351 60...... 28140 170...... 25640 92...... 27698 2590...... 26351 79...... 29034 171...... 25640 622...... 28924 4022...... 29323 80...... 29034 1355...... 28410 648...... 27703

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