The purpose of Title XI  1 is “to provide that Federal financial and public policy interests in real estate related transactions will be protected by requiring that real estate appraisals utilized in connection with federally related transactions [FRTs] are performed in writing, in accordance with uniform standards, by individuals whose competency has been demonstrated and whose professional conduct will be subject to effective supervision.”  2

Title XI requires that real property appraisals performed in connection with FRTs be performed in accordance with the Uniform Standards of Professional Appraisal Practice (USPAP)  3 as promulgated by the Appraisal Standards Board (ASB) of the Appraisal Foundation. The Federal financial institutions regulatory agencies' appraisal regulations require appraisals for FRTs to meet these minimum appraisal standards as evidenced by USPAP. 4 Title XI also requires that certified and licensed appraisers meet the minimum qualification criteria as set forth in The Real Property Appraiser Qualification Criteria (AQB Criteria) issued by the Appraiser Qualifications Board (AQB) of the Appraisal Foundation. 5 The State appraiser regulatory agencies enforce these federal minimum requirements for credentialed appraisers in their respective States and are subject to federal oversight by the ASC. 6

Section 1119(b) of Title XI authorizes the ASC to waive, on a temporary basis, subject to approval of the FFIEC:

The ASC published rules of practice and procedure governing temporary waiver proceedings in 1992. 9 The ASC has ordered temporary waiver relief on two occasions. The first was for the Commonwealth of the Northern Mariana Islands in February 1993 (preceded by an interim order for relief issued in December 1992). The second was in August 2019 for the State of North Dakota (which was extended in part for one additional year in 2020).

Under the existing rules of practice and procedure, when the ASC receives a request from a State appraiser regulatory agency that meets the requirements set forth in 12 CFR 1102.2, Requirements for requests, including a written duly authorized determination that there is a scarcity of certified or licensed appraisers leading to significant delays in obtaining appraisals in FRTs, the request is published promptly in the Federal Register for comment. In the absence of such a written determination, the State appraiser regulatory agency must ask the ASC for such a determination. When the ASC receives a submission pursuant to 12 CFR 1102.3, Other requests and information submissions, the ASC has the discretion to determine whether or not to initiate a temporary waiver proceeding. If the ASC makes a determination to initiate a temporary waiver proceeding, the ASC will promptly publish notice of the proceeding in the Federal Register . Within 45 calendar days of the date of publication in the Federal Register , the existing rules provide that the ASC will grant or deny a waiver, in whole or in part, by Order. The ASC must seek FFIEC approval if the waiver is granted, and the waiver cannot take effect unless approved by the FFIEC.

Application of the existing rules of practice and procedure in the present day led the ASC to recognize there may be advantages in proposing revisions to the existing rules to define terms and provide greater clarity on the proceedings. The ASC also believes there may be advantages in proposing revisions to the timeframes in the existing rules of practice and procedure (as established in 1992 to accommodate newly formed State appraiser regulatory agencies) to be more conducive to deliberation by the ASC or FFIEC. Accordingly, the ASC proposes to amend the existing rules of practice and procedure as set forth below. The ASC created a flow chart for temporary waiver proceedings as set forth in this notice of proposed rulemaking: https://www.asc.gov/Documents/FedralRegisterDocuments/Temporary%20Waiver%20Flow%20Chart%20for%20NPRM%20-%20Docket%20No.%20AS22-01.pdf.

The ASC is also proposing interpretations of several of the terms used in § 1119(b) of Title XI. These interpretations are proposed to be included in the “definitions” section of the rule.

Though neither procedural rules nor published agency interpretations of their statutory authority require notice and comment under the Administrative Procedure Act (APA), 10 the ASC is voluntarily submitting this proposed rule and interpretations for public comment in order to seek feedback from interested parties.

Proposed § 1102.1 would clarify the purpose and scope of the processes available for ASC consideration of temporary waiver relief by making a clear distinction between: (1) A request from a State appraiser regulatory agency accompanied by a written determination, referred to in the proposed rule as a “Request for Temporary Waiver”; and (2) information received from other persons or entities (which could include a State appraiser regulatory agency) referred to in the proposed rule as a “Petition.” As subsequent sections in the proposed amended rule clarify, the procedure followed varies depending on whether the ASC has received a Request for Temporary Waiver or a Petition requesting that the ASC initiate a temporary waiver proceeding.

The basis for this distinction is in the statute itself. Section 1119(b) of Title XI authorizes the ASC to grant a temporary waiver only when the ASC or a State appraiser regulatory agency has made the statutorily required written determination that: (1) There is a scarcity of certified or licensed appraisers to perform appraisals in connection with FRTs in a State, or in any geographical political subdivision of a State; and (2) such scarcity is leading to significant delays in the performance of such appraisals for FRTs. 11 Accordingly, the proposed rules seek to clarify the procedural differences in processing a Request for Temporary Waiver accompanied by a written determination as compared to a Petition requesting the ASC exercise its discretion to initiate a temporary waiver proceeding.

Proposed § 1102.2 would establish definitions for the following terms:

Federally related transaction (FRT). Proposed § 1102.2(a) proposes to define federally related transaction (FRT) to mean any real estate-related financial transaction which: (a) A Federal financial institutions regulatory agency engages in, contracts for, or regulates; and (b) requires the services of an appraiser under the interagency appraisal rules. [(Title XI § 1121(4), 12 U.S.C. 3350), implemented by the Office of the Comptroller of the Currency: 12 CFR 34.42(g) and 34.43(a); Federal Reserve Board: 12 CFR 225.62 and 225.63(a); Federal Deposit Insurance Corporation: 12 CFR 323.2(f) and 323.3(a); and National Credit Union Administration: 12 CFR 722.2(f) and 722.3(a)].

Performance of appraisals. Proposed § 1102.2(b) proposes to define performance of appraisals to mean that the appraisal service requested of an appraiser has been provided to the lender or appraisal management company (AMC).

Petition. Proposed § 1102.2(c) proposes to define Petition to mean information submitted to the ASC by the Federal financial institutions regulatory agencies, their respective regulated financial institutions, or other persons or institutions with a demonstrable interest in appraiser regulation, including a State Appraisal Agency (defined below), asking the ASC to exercise its discretionary authority to initiate a temporary waiver proceeding, and that meets the requirements, as determined by the ASC, set forth in proposed § 1102.4.

Request for Temporary Waiver. Proposed § 1102.2(d) proposes to define Request for Temporary Waiver to mean information submitted to the ASC with a written determination from a State Appraisal Agency (defined below) requesting a temporary waiver that meets the requirements, as determined by the ASC, set forth in proposed § 1102.3.

Scarcity of certified or licensed appraisers. Proposed § 1102.2(e) proposes to define scarcity of certified or licensed appraisers to mean the number of active certified or licensed appraisers within a State or a specified geographical political subdivision is insufficient to meet the demand for appraisal services and such appraisers are difficult to retain.

Significant delays in the performance of appraisals. Proposed § 1102.2(f) proposes to define significant delays in the performance of appraisals to mean delays that are substantially out of the ordinary when compared to performance of appraisals for similarly situated federally related transactions based on factors such as geographic location ( e.g., rural versus urban) and assignment type, and the delay is not the result of intervening circumstances outside the appraiser's control or brought about by the appraiser's client ( e.g., inability to access the subject property).

State Appraisal Agency. Proposed § 1102.2(g) proposes to define State Appraisal Agency to mean the State appraiser certifying and licensing agency. 12

Temporary waiver. Proposed § 1102.2(h) proposes to define Temporary waiver to mean a waiver of any or all credentialing requirements for persons eligible to perform appraisals for FRTs; if granted, a temporary waiver does not waive the requirement for a USPAP-compliant appraisal. 13

Proposed § 1102.3 clarifies: Who can file a Request for Temporary Waiver; what a Request for Temporary Waiver should contain; ASC review of a Request for Temporary Waiver for purposes of determining sufficiency of the document's content and receipt by the ASC; and what is required in the event a Request for Temporary Waiver is not deemed to be received, and thereby is either denied or referred back to the State Appraisal Agency.

Proposed § 1102.3(a) states that the State Appraisal Agency for the State in which temporary waiver relief is sought may file a Request for Temporary Waiver as distinguished from a Petition from other persons or entities as proposed in § 1102.4. A State Appraisal Agency may alternatively submit a Petition as set forth in proposed § 1102.4. The ASC believes this is consistent with the intent of the existing rules. 14

Proposed § 1102.3(b) states that a Request for Temporary Waiver will not be deemed to have been received by the ASC unless it fully and accurately sets out:

The existing rules state that in the absence of a written determination by the State Appraisal Agency, it must ask the ASC for such a determination. That language is removed from this proposed subsection for the reason that if the ASC were to make such a determination when asked to do so by a State Appraisal Agency, it would be processed as an ASC Order initiating a temporary waiver proceeding pursuant to proposed § 1102.5(a).

The proposed amendments to this subsection seek to provide clarity on information that should be included in a Request for Temporary Waiver and to remove redundancy from that information. For example, the existing rules, in addition to the above, ask for “[a] description of all significant problems currently being encountered in efforts to comply with [T]itle XI” which would be captured in the information sought in proposed § 1102.3(b). The proposed amendments also modify the requirement for a State Appraisal Agency to provide “a specific plan for expeditiously alleviating the scarcity and service delays” to “meaningful suggestions and recommendations for remedying the situation” recognizing that the situation creating scarcity and delay may be completely outside the control of the State Appraisal Agency.

The proposed amendments include the phrase “supporting documentation, statistical or otherwise verifiable.” This is intended to provide clarification as to what a Request for Temporary Waiver should include to support the existence of a scarcity of certified or licensed appraisers leading to significant delays in the performance of appraisals for FRTs or a specified class of FRTs for either a portion of, or the entire State, and what the ASC will consider in determining receipt ( see proposed § 1102.3(c) below). A Request for Temporary Waiver should include clear and specific data to support a claim that there is a scarcity of appraisers leading to significant delays in the performance of covered appraisals. The data supporting such a claim may vary from location to location and situation to situation. Information about the following could assist the ASC in reviewing a Request for Temporary Waiver:

Proposed § 1102.3(b) includes that a Request for Temporary Waiver address how complaints concerning appraisals by persons who are not certified or licensed would be processed in the event a temporary waiver is granted.

Proposed § 1102.3(c) is intended to clarify that a Request for Temporary Waiver shall be deemed received for purposes of publication in the Federal Register for notice and comment if the ASC determines that the information submitted meets the requirements of § 1102.3(b).

Proposed § 1102.3(d) sets forth what is required in the event a Request for Temporary Waiver is not deemed to be received, and thereby is either denied or referred back to the State Appraisal Agency. In either case, written notice from the ASC would be required with an explanation for such a determination.

Proposed § 1102.4 clarifies: Who can file a Petition requesting that the ASC exercise its discretionary authority to issue an Order, thereby initiating a temporary waiver proceeding; what a Petition should contain; the need to forward a copy of a Petition to the State Appraisal Agency of the impacted State; what the ASC may review for purposes of determining whether the Petition may be processed for further action; what is required in the event a Petition does not meet the requirements of § 1102.4(b), Contents of a Petition, and thereby is either denied or referred back to the petitioner; and what further action may be taken.

Proposed § 1102.4(a) states that a Petition may be filed by the Federal financial institutions regulatory agencies, their respective regulated financial institutions, and other persons or institutions with a demonstrable interest in appraiser regulation, including a State Appraisal Agency.

Proposed § 1102.4(b) states that a Petition should include:

The existing rules generally request the same information from State Appraisal Agencies as they do from other persons or institutions seeking consideration of temporary waiver relief (with the exception of “a specific plan to alleviate scarcity and service delays” which is unique to State Appraisal Agencies). The proposed amendments to this subsection seek to provide clarity on information that should be included in a Petition while easing the expectation that a Petition contain the specificity of a Request for Temporary Waiver from a State Appraisal Agency.

The proposed amendments include the phrase “supporting documentation, statistical or otherwise verifiable.” This is intended to clarify what a Petition should include to support the existence of a scarcity of certified or licensed appraisers leading to significant delays in the performance of appraisals for FRTs or a specified class of FRTs for either a portion of, or the entire State, and what the ASC will consider in determining whether to process a Petition for further action ( see proposed § 1102.4(d) below).

Proposed § 1102.4(c) clarifies the existing requirement for a petitioner to provide a copy of their Petition to the State Appraisal Agency, unless the party filing the Petition is the State Appraisal Agency.

Proposed § 1102.4(d) provides that a Petition may be processed for further action if the ASC determines that the information submitted meets the requirements of proposed § 1102.4(b) and that further action should be taken to determine whether a scarcity of appraisers exists and that the scarcity is leading to significant delays in the performance of appraisals for FRTs or a specified class of FRTs within either a portion of, or the entire State.

Proposed § 1102.4(e) sets forth what is required in the event a Petition does not meet the requirements of § 1102.4(b), Contents of a Petition, and thereby is either denied or referred back to the petitioner. In either case, written notice from the ASC would be required with an explanation for such a determination.

Proposed § 1102.4(f) states that if a Petition is processed for further action, the ASC may initially refer a Petition to the State Appraisal Agency where temporary waiver relief is sought for evaluation and further study, or the ASC may take further action without referring a Petition to the State Appraisal Agency. Alternatively, a Petition may be denied or referred back to the petitioner for further action.

Proposed § 1102.4(g) states that in the event the State Appraisal Agency opts to conduct evaluation and further study on a Petition, the State Appraisal Agency may issue a written determination that there is a scarcity of certified or licensed appraisers leading to significant delays in the performance of appraisals for FRTs or a class of FRTs within either a portion of, or the entire State. Assuming the State Appraisal Agency has addressed the items that would be included in a Request for Temporary Waiver as set forth in proposed § 1102.3(b), the Petition would now be subject to the procedures and requirements for a Request for Temporary Waiver.

The State Appraisal Agency could alternatively recommend that the ASC take no further action on the Petition, or moreover decline to conduct evaluation and further study on a Petition. In either case, the ASC may exercise its discretion in determining whether to issue an Order initiating a temporary waiver proceeding.

Proposed § 1102.5 clarifies that an Order initiating a temporary waiver proceeding may be in response to a Petition or may be initiated by the ASC without a Petition having been submitted. In either event, such an Order would include consideration of certain items that would be addressed in a Request for Temporary Waiver. ( See e.g., § 1102.3(b)(2)-(6), Contents and Receipt of a Request for Temporary Waiver ). If such an Order is issued, the ASC shall publish a Federal Register notice in accordance with § 1102.6(b). This is consistent with the existing rules of practice and procedure.

Proposed § 1102.6 does not vary in substance from the existing rules of practice and procedure, § 1102.4, Notice and comment, which provides for a 30-day notice and comment period on either a Request for Temporary Waiver or an Order initiating a temporary waiver proceeding.

Proposed § 1102.7 would expand the existing 45-day deadline, which commences on the date of publication above, for the ASC to make a determination. With respect to recent requests for temporary waivers, or other information submissions requesting the ASC initiate a proceeding, the 45-day turnaround limited the time available to process and evaluate information submitted, including comments received during the notice and comment period.

The ASC believes that the 45-day time period was imposed in 1992 primarily because States were still in the process of setting up State appraiser regulatory programs, and absent a temporary waiver, could have been left without any means to provide appraisals for FRTs. That is not the case today. Even absent a temporary waiver, a State would likely be able to continue to provide appraisals, especially given the use of temporary practice permits and reciprocity.

The ASC proposes to expand the timeframe for an ASC determination, on either a Request for Temporary Waiver or an Order initiating a temporary waiver proceeding, from 45 calendar days to 90 calendar days from the date of publication in the Federal Register to allow sufficient time for thorough processing and consideration. Proposed § 1102.7 also seeks to clarify that in the event the ASC issues an Order approving a temporary waiver, which is only effective upon FFIEC approval of the waiver, that the FFIEC consideration of the waiver would not be subject to the ASC's proposed 90-day timeframe for a determination.

The existing rules of practice and procedure allow the ASC to issue an interim approval Order simultaneously with a publication for notice and comment, and apply when the ASC determines that an emergency exists. A waiver approved by such an Order also requires approval by the FFIEC. For the reasons stated above, the ASC believes the existing rules were intended to accommodate nascent State Programs, which is not applicable today. States now have options to cope with an emergency that were not available when the existing rules of practice and procedure were finalized. Additionally, the ASC believes that notice and comment is critical to thorough processing of a Request for Temporary Waiver or a Petition. Therefore, as proposed, § 1102.6 would eliminate the interim Order from the rules of practice and procedure.

Proposed § 1102.8 does not vary in substance from the existing rules of practice and procedure, § 1102.6, Waiver extension.

Proposed § 1102.9 would clarify the distinction between mandatory waiver termination versus discretionary waiver termination. Section 1119(b) of Title XI states, “[t]he waiver terminates when the [ASC] determines that such significant delays have been eliminated.” Therefore, proposed § 1102.9 would require termination in the event of such a finding by the ASC. Proposed § 1102.9 would retain the provision for a discretionary termination in the event the ASC finds that the terms and conditions of the waiver Order are not being satisfied and the procedure for the ASC's publication in the Federal Register for notice and comment in the case of discretionary waiver termination, which does not vary in substance from the existing rules of practice and procedure, § 1102.7, Waiver termination. In the absence of further ASC action to the contrary, the finding of a discretionary waiver termination automatically shall become final 21 calendar days after the close of the comment period.

The ASC requests comment on all aspects of the proposed amendments to the existing rules of practice and procedure governing temporary waiver proceedings.

The ASC has concluded that, if finalized, the proposed amendments to the procedural rule would, like the current rule, constitute a rule of agency organization, procedure, or practice, and that they would therefore be exempt from the notice-and-comment rulemaking requirements of the APA. 15 For the same reason, the proposed amendments would not be subject to the 30-day delayed effective date for substantive rules under the APA. 16 Moreover, agency interpretations of terms used in their statutory authority are exempt from the notice and comment requirement. Because no notice of proposed rulemaking is required, the Regulatory Flexibility Act does not require an initial or final regulatory flexibility analysis. 17

There is no collection of information that would be required by this proposed rule that would be subject to the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. The Paperwork Reduction Act of 1995  18 (PRA) states that no agency may conduct or sponsor, nor is the respondent required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The ASC has reviewed this notice of proposed rulemaking and determined that it does not contain any information collection requirements subject to the PRA. Accordingly, no submissions to OMB will be made with respect to this proposed rule.

This proposed rule if finalized would not have a significant or unique effect on State, local, or tribal governments or the private sector. The proposed rule would amend the existing rule to provide definitions of terms and greater clarity on the proceedings for a temporary waiver. A statement containing the information required by the Unfunded Mandates Reform Act, 2 U.S.C. 1531 et seq. is not required.

For the reasons set forth in the preamble, the ASC proposes to amend 12 CFR part 1102 as follows:

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-1176; Project Identifier MCAI-2021-00755-R” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Hal Jensen, Aerospace Engineer, Operational Safety Branch, FAA, 950 L'Enfant Plaza SW, Washington, DC 20024; telephone (202) 267-9167; email hal.jensen@faa.gov. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2021-0152R1, dated July 20, 2021 (EASA AD 2021-0152R1), to correct an unsafe condition for Airbus Helicopters (formerly Eurocopter, Eurocopter France, Aerospatiale, Sud Aviation) Model SA 330 J helicopters, all serial numbers, which were modified in service in accordance with the instructions of Eurocopter France Service Bulletin (SB) No. 01.20 (part of which is the in-service retrofit Modification (Mod) 07 40043), except those on which each affected part (as defined in EASA AD 2021-0152R1) was replaced with a new part (not previously installed) during embodiment of Eurocopter France SB No. 01.20 in service.

This proposed AD was prompted by a review of Model EC225LP helicopter in-service data that revealed potential tightening torque loss of the attachment screws of the upper deck fittings of the three MGB suspension bars. The FAA issued AD 2020-06-12, Amendment 39-19881 (85 FR 19077, April 6, 2020) to address the unsafe condition on Model EC225LP helicopters). Due to design similarities, the MGB RH rear fittings and MGB RH rear fitting attachment screws on Model SA330J helicopters could also be affected. Additional analysis confirmed that the SLL for these affected MGB RH rear fittings needs to be reduced for helicopters on which these affected parts were operated concurrently with metallic main rotor blades (pre-Airbus Helicopters Modification 07 40043) installed. Airbus Helicopters Modification 07 40043 introduced the installation of composite main rotor blades.

The FAA is proposing this AD to address tightening torque loss of the attachment screws of the upper deck fittings of the three MGB suspension bars. The unsafe condition, if not addressed, could result in structural failure of the MGB RH rear fittings and MGB RH rear fitting attachment screws, resulting in detachment of the MGB suspension bars and consequent loss of control of the helicopter. See EASA AD 2021-0152R1 for additional background information.

EASA AD 2021-0152R1 requires determining the damage value of each affected MGB RH rear fitting by calculating the damage caused during the time each affected part was operated concurrently with metallic main rotor blades installed on the helicopter, calculating the SLL for each affected MGB RH rear fitting, and eventually replacing each affected MGB RH rear fitting and the MGB RH rear fitting attachment screws with new parts.

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

These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA about the unsafe condition described in its AD. The FAA is proposing this AD after evaluating all known relevant information and determining that the unsafe condition described previously is likely to exist or develop on other helicopters of the same type design.

This proposed AD would require accomplishing the actions specified in EASA AD 2021-0152R1, described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this proposed AD.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to incorporate EASA AD 2021-0152R1 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2021-0152R1 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in EASA AD 2021-0152R1 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2021-0152R1. Service information referenced in EASA AD 2021-0152R1 for compliance will be available at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-1176 after the FAA final rule is published.

The FAA estimates that this AD, if adopted as proposed, would affect 15 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this proposed AD.

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

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

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

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

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

(2) Would not affect intrastate aviation in Alaska, and

(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would expand the availability of RNAV in Alaska and improve the efficient flow of air traffic within the National Airspace System (NAS) by lessening the dependency on ground based navigation.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA-2021-1163; Airspace Docket No. 19-AAL-38) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the internet at https://www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2021-1163; Airspace Docket No. 19-AAL-38”. The postcard will be date/time stamped and returned to the commenter.

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

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

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Western Service Center, Operations Support Group, Federal Aviation Administration, 2200 South 216th Street, Des Moines, WA 98198.

This document proposes to amend FAA Order JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021, and effective September 15, 2021. FAA Order JO 7400.11F is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11F lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

In 2003, Congress enacted the Vision 100-Century of Aviation Reauthorization Act (Pub L. 108-176), which established a joint planning and development office in the FAA to manage the work related to the Next Generation Air Transportation System (NextGen). Today, NextGen is an ongoing FAA-led modernization of the nation's air transportation system to make flying safer, more efficient, and more predictable.

In support of NextGen, this proposal is part of a larger and comprehensive T-route modernization project in the state of Alaska. The project mission statement states: “To modernize Alaska's Air Traffic Service route structure using satellite based navigation Development of new T-routes and optimization of existing T-routes will enhance safety, increase efficiency and access, and will provide en route continuity that is not subject to the restrictions associated with ground based airway navigation.” As part of this project, the FAA evaluated the existing Colored Airway structure for: (a) Direct replacement ( i.e., overlay) with a T-route that offers a similar or lower Minimum En route Altitude (MEA) or Global Navigation Satellite System Minimum En route Altitude (GNSS MEA); (b) the replacement of the colored airway with a T-route in an optimized but similar geographic area, while retaining similar or lower MEA; or (c) removal with no route structure (T-route) restored in that area because the value was determined to be insignificant.

The aviation industry/users have indicated a desire for the FAA to transition the Alaskan en route navigation structure away from dependency on Non-Directional Beacons (NDB), and move to develop and improve the RNAV route structure. The FAA proposes to establish RNAV route T-369 between the Bethel, AK, (BET) VHF Omnidirectional Radar and Tactical Air Navigational System (VORTAC) and the Nome, AK, (OME) VHF Omnidirectional Radar/Distance Measuring Equipment (VOR/DME). The intent of this proposal is to support future decommissioning of the Oscarville, AK, (OSE); the St. Mary's, AK, (SMA); and the Fort Davis, AK, (FDV) NDBs. The proposed route would provide an alternative to Colored airway B-27, with lower GNSS MEAs, while ensuring continuous two-way VHF communications throughout.

The FAA is proposing an amendment to 14 CFR part 71 to establish RNAV route T-369 in the vicinity of Bethel, AK in support of a large and comprehensive T-route modernization project for the state of Alaska. The proposed route is described below.

T-369: The FAA proposes to establish T-369 from the Bethel, AK, (BET) VORTAC and the Nome, AK, (OME) VOR/DME.

United States Area Navigation Routes are published in paragraph 6011 of FAA Order JO 7400.11F dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The RNAV listed in this document would be published subsequently in FAA Order JO 7400.11.

FAA Order JO 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

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

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

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it would establish Class E airspace for Iuka Airport, Iuka, MS, to support IFR operations in the area.

Interested persons are invited to comment on this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (Docket No. FAA-2021-1191 and Airspace Docket No. 21-ASO-40) and be submitted in triplicate to DOT Docket Operations (see ADDRESSES section for the address and phone number). You may also submit comments through the internet at https://www.regulations.gov.

Persons wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2021-1191 Docket No. 21-ASO-40.” The postcard will be date/time stamped and returned to the commenter.

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

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

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see the ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined between 8:00 a.m. and 4:30 p.m., Monday through Friday, except federal holidays, at the office of the Eastern Service Center, Federal Aviation Administration, Room 350, 1701 Columbia Avenue, College Park, GA 30337.

This document proposes to amend FAA Order JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021, and effective September 15, 2021. FAA Order JO 7400.11F is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11F lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA proposes an amendment to 14 CFR part 71 to establish Class E airspace extending upward from 700 feet above the surface within a 6.9-mile radius of Iuka Airport to accommodate RNAV SIAPs serving the airport.

Class E airspace designations are published in Paragraph 6005 of FAA Order JO 7400.11F, dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in FAA Order JO 7400.11.

FAA Order JO 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

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

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

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would expand the availability of RNAV in Alaska and improve the efficient flow of air traffic within the National Airspace System (NAS) by lessening the dependency on ground based navigation.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA-2021-1157; Airspace Docket No. 19-AAL-36) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the internet at https://www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2021-1157; Airspace Docket No. 19-AAL-36”. The postcard will be date/time stamped and returned to the commenter.

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

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

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Western Service Center, Operations Support Group, Federal Aviation Administration, 2200 South 216th St., Des Moines, WA 98198.

This document proposes to amend FAA Order JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021, and effective September 15, 2021. FAA Order JO 7400.11F is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11F lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

In 2003, Congress enacted the Vision 100-Century of Aviation Reauthorization Act (Pub L. 108-176), which established a joint planning and development office in the FAA to manage the work related to the Next Generation Air Transportation System (NextGen). Today, NextGen is an ongoing FAA-led modernization of the nation's air transportation system to make flying safer, more efficient, and more predictable.

In support of NextGen, this proposal is part of a larger and comprehensive T-route modernization project in the state of Alaska. The project mission statement states: “To modernize Alaska's Air Traffic Service route structure using satellite based navigation Development of new T-routes and optimization of existing T-routes will enhance safety, increase efficiency and access, and will provide en route continuity that is not subject to the restrictions associated with ground based airway navigation.” As part of this project, the FAA evaluated the existing Colored Airway structure for: (a) Direct replacement ( i.e., overlay) with a T-route that offers a similar or lower Minimum En route Altitude (MEA) or Global Navigation Satellite System Minimum En route Altitude (GNSS MEA); (b) the replacement of the colored airway with a T-route in an optimized but similar geographic area, while retaining similar or lower MEA; or (c) removal with no route structure (T-route) restored in that area because the value was determined to be insignificant.

The aviation industry/users have indicated a desire for the FAA to transition the Alaskan en route navigation structure away from dependency on Non-Directional Beacons (NDB), and move to develop and improve the RNAV route structure. The FAA proposes to establish RNAV route T-367 between two newly established waypoints (WP), the JOPES, AK, WP over St. Mary's Airport (KSM), Alaska, to the CABGI, AK, WP over Cape Lisburne LRRS Airport (LUR), Alaska. The proposed route would provide an alternative to Colored airways A-6, B-3, and B-2 to allow for lower GNSS MEAs with continuous two-way VHF voice communications. Additionally, the proposed route would support the future decommissioning of the St. Mary's, AK, (SMA); the North River, AK, (JNR); the Norton Bay, AK, (OAY); the Hotham, AK, (HHM); and the Cape Lisburne, AK, (LUR) NDB's by providing new waypoints in those areas.

The FAA is proposing an amendment to 14 CFR part 71 to establish RNAV route T-367 in the vicinity of St. Mary's, AK in support of a large and comprehensive T-route modernization project for the state of Alaska. The proposed route is described below.

T-364: The FAA proposes to establish T-367 from the JOPES, AK, WP located over the St. Mary's Airport (KSM), Alaska to the CABGI, AK, WP located over the Cape Lisburne LRRS Airport (LUR), Alaska.

United States Area Navigation Routes are published in paragraph 6011 of FAA Order JO 7400.11F dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The RNAV route listed in this document would be published subsequently in FAA Order JO 7400.11.

FAA Order JO 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

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

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

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

Under the Delaney Clause (section 512(d)(1)(I) (21 U.S.C. 360b(d)(1)(I)) of the Federal Food, Drug, and Cosmetic Act (FD&C Act)), FDA generally cannot approve a new animal drug application (NADA) if the drug that is the subject of that application induces cancer in humans or animals. An exception to this general rule is commonly known as the Diethylstilbestrol “DES” Proviso, which allows for the approval of a carcinogenic new animal drug where FDA finds that under the approved conditions of use: (1) The drug will not adversely affect the animals treated with the drug and (2) no residues of the drug will be found by an approved regulatory method in any edible tissues of, or in any foods yielded by, the animal (section 512(d)(1)(I) of the FD&C Act).

On July 20, 2020, the Agency published a notice in the Federal Register proposing an order to revoke the approved method for detecting residues of carbadox, a carcinogenic new animal drug used in swine feed. (85 FR 43853, July 20, 2020; Docket No. FDA-2020-N-0955, “Phibro Animal Health Corp.; Carbadox in Medicated Swine Feed; Revocation of Approved Method.”) The currently approved method measures quinoxaline-2-carboxylic acid (QCA) as a marker residue to detect the presence of the residue of carcinogenic concern. (Determination of Carbadox (as Quinoxaline-2-Carboxylic [QCA]) Residues in Swine Liver and Muscle Tissues After Drug Withdrawal, https://www.fda.gov/about-fda/center-veterinary-medicine/cvm-foia-electronic-reading-room. ) The proposal to revoke the approved method for carbadox is based on CVM's determination that the method is inadequate to monitor residue of carcinogenic concern in compliance with FDA's regulations in part 500, subpart E (21 CFR part 500, subpart E). These regulations set out the requirements for demonstrating that no residues of the drug will be found by an approved regulatory method in any edible tissues of or in any foods obtained from the animal, as required to meet the requirements of the DES Proviso. The purpose of the public hearing is to gather additional data and information related to the residue of carcinogenic concern for the new animal drug carbadox.

This public hearing will be held in accordance with part 15 (21 CFR part 15). Pursuant to § 15.1(a) and authority delegated from the Commissioner of Food and Drugs as referenced in the FDA Staff Manual Guide 1410.21(1)(B)(6) and (1)(D), the FDA Acting Chief Scientist concludes, as a matter of discretion, that it is in the public interest to permit persons to present information and views at a public hearing on this matter. The hearing will be conducted by a presiding officer, who will be accompanied by other United States Government employees serving as a panel in conducting the hearing. Under § 15.30(f), the hearing is informal, and the rules of evidence do not apply. Only the presiding officer and panel members can pose questions; they can question any person during or at the conclusion of each presentation. To the extent that the conditions for the hearing, as described in this notice, conflict with any provisions set out in part 15, this notice acts as a waiver of those provisions as specified in § 15.30(h).

We encourage public comments and presentations at the public hearing. We are particularly interested in receiving comments, data, and information about the topics listed below. In submitting comments, data, and information to the docket, please identify available references for the data and information, as well as the specific item number listed below, if applicable. Please reference, but do not resubmit, any information already contained in Docket No. FDA-2020-N-0955, “Phibro Animal Health Corp.; Carbadox in Medicated Swine Feed; Revocation of Approved Method.”

1. Data to inform our knowledge of the residue of carcinogenic concern not summarized in the Freedom of Information summary for the 1998 supplemental approvals, including additional data regarding the fraction of noncarcinogenic residues in the total radiolabeled residues of carbadox.

2. For any given concentration of a marker residue, the corresponding concentration of the residue of carcinogenic concern.

3. Additional information not already contained in Docket No. FDA-2020-N-0955, “Phibro Animal Health Corp.; Carbadox in Medicated Swine Feed; Revocation of Approved Method” related to the adequacy of the current approved method to measure QCA as a marker residue for the residue of carcinogenic concern for the new animal drug carbadox.

4. Any method, other than the current approved method, that demonstrates “no residue” for the new animal drug carbadox in conformance with part 500, Subpart E.

5. Detailed information on the conduct and quality of studies providing data to support the points above, including information on the extraction process and the stability of residues being analyzed.

In the Federal Register of December 1, 2021, in FR Doc. 2021-25845, on page 68200, in the third column, change the DATES caption to read:

DATES: Written comments on this proposed rule must be received on or before January 31, 2022.

Under section 109 of the Clean Air Act (CAA or “Act”), EPA has established primary and secondary NAAQS for certain pervasive air pollutants (referred to as “criteria pollutants”) and conducts periodic reviews of the NAAQS to determine whether they should be revised or whether new NAAQS should be established. The primary NAAQS represent ambient air quality standards the attainment and maintenance of which EPA has determined, including a margin of safety, are requisite to protect the public health. The secondary NAAQS represent ambient air quality standards the attainment and maintenance of which EPA has determined are requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air.

Under the CAA, EPA must establish a NAAQS for SO 2 , which is primarily released to the atmosphere through the burning of fossil fuels by power plants and other industrial facilities. Short-term exposure to SO 2 can damage the human respiratory system and increase breathing difficulties. Small children and people with respiratory conditions, such as asthma, are more sensitive to the effects of SO 2 . Sulfur oxides at high concentrations can also react with compounds to form small particulates that can penetrate deeply into the lungs and cause health problems.

EPA first established primary SO 2 standards in 1971 at 0.14 parts per million (ppm) over a 24-hour averaging period and 0.3 ppm over an annual averaging period. 1 In June 2010, EPA revised the primary NAAQS for SO 2 to provide increased protection of public health, providing for revocation of the 1971 primary annual and 24-hour SO 2 standards for most areas of the country following area designations under the new NAAQS. 2 The 2010 NAAQS is 75 parts per billion (ppb) (equivalent to 0.075 ppm) over a 1-hour averaging period. 3 A violation of the 2010 1-hour SO 2 NAAQS occurs when the annual 99th percentile of ambient daily maximum 1-hour average SO 2 concentrations, averaged over a 3-year period, exceeds 75 ppb. 4

Following promulgation of any new or revised NAAQS, EPA is required by CAA section 107(d) to designate areas throughout the nation as attaining or not attaining the NAAQS. On August 5, 2013, EPA finalized its first round (round 1) of designations for the 2010 primary SO 2 NAAQS. 5 Specifically, in the 2013 action, EPA designated 29 areas in 16 states as nonattainment for the 2010 SO 2 NAAQS, including a portion of Sullivan County (hereinafter referred to as “the Sullivan County Area” or Area) in Tennessee. The Sullivan County Area lies within a 3-kilometer (km) radius circle centered around the B-253 powerhouse at the Eastman Chemical Company facility in Kingsport, Tennessee (Eastman), which encompasses an SO 2 monitor operating at the time of designation (Air Quality System (AQS) Site ID: 47-163-0007). 6 EPA's round 1 designations for the 2010 SO 2 NAAQS, including the Sullivan County Area, became effective on October 4, 2013. Pursuant to CAA section 192(a), the attainment date for the Area was no later than October 4, 2018, which is five years after the effective date of the final action designating each round 1 area as nonattainment for the 2010 SO 2 NAAQS.

Under CAA section 179(c) of the CAA, within six months of the attainment date, the EPA is required to make a determination, based on the area's air quality as of the attainment date, whether an area attained by that date. If the EPA determines that an area failed to attain by the attainment date, EPA is required to publish that determination in the Federal Register . CAA section 179(c)(2). On June 25, 2021, EPA entered into a consent decree with the Center for Biological Diversity in the U.S. District Court for the Northern District of California. 7 The consent decree requires EPA to finalize, by January 31, 2022, or March 31, 2022, depending on the nonattainment area, a determination whether certain round 1 SO 2 nonattainment areas (including the Sullivan County Area) attained the 1-hour SO 2 standard by the October 4, 2018 attainment date. For the Sullivan County Area, the consent decree deadline is March 31, 2022.

Section 179(c)(1) of the CAA requires EPA to determine whether a nonattainment area attained an applicable standard by the applicable attainment date based on the area's air quality as of the applicable attainment date. A determination of whether an area's air quality meets applicable standards is generally based upon the most recent three years of complete, quality-assured data gathered at established state and local air monitoring stations (SLAMS) in a nonattainment area and entered into the EPA's Air Quality System (AQS) database. 8 Data from ambient air monitors operated by state and local agencies in compliance with EPA's monitoring requirements must be submitted to AQS. 9 Monitoring agencies annually certify that these data are accurate to the best of their knowledge. 10 EPA uses the certified air monitoring data to calculate design values that are used to determine the area's air quality status in accordance with 40 CFR part 50 Appendix T (for SO 2 ).

Specifically, under EPA regulations in 40 CFR 50.17 and in accordance with 40 CFR part 50 Appendix T, the 2010 1-hour annual SO 2 standard is met when the design value is less than or equal to 75 ppb. Design values are calculated by computing the three-year average of the annual 99th percentile daily maximum 1-hour average concentrations. 11 When calculating 1-hour primary standard design values, the calculated design values are rounded to the nearest whole number ( i.e., 1 ppb) by convention. An SO 2 1-hour primary standard design value is valid if it encompasses three consecutive calendar years of complete data. A year is considered complete when all four quarters are complete, and a quarter is complete when at least 75 percent of the sampling days are complete. A sampling day is considered complete if 75 percent of the hourly concentration values are reported; this includes data affected by exceptional events that have been approved for exclusion by the EPA Administrator. 12

EPA notes that when determining the attainment status of SO 2 nonattainment areas, including when making determinations of attainment by the attainment date, in addition to ambient monitoring data, the Agency may also consider air quality dispersion modeling and/or a demonstration that the control strategy in the SIP has been fully implemented. 13 With regard to the use of monitoring data for such determinations, EPA's 2014 Nonattainment SO 2 Guidance  14 specifically notes that “[i]f the EPA determines that the air quality monitors located in the affected area are located in the area of maximum concentration, the EPA may be able to use the data from these monitors to make the determination of attainment without the use of air quality modeling data.”  15 The modeling analysis of whether monitors are located in the area of maximum concentration is necessary where EPA is making a determination that an area attained by its attainment date based solely on that monitoring information. In the case of the Sullivan County Area, the SLAMS monitors did not start collecting data until the middle of 2016; therefore, a valid 2015-2017 design value based on three consecutive calendar years cannot be calculated. 16 EPA's proposed determination that the area did not attain by its attainment date is, therefore, based on a technical analysis of the weight of available evidence — including monitoring data and emissions data from the relevant time period, as described in section II.C and II.D of this notice. As noted, the determination of whether the monitors are located in the area of maximum concentration is not needed in this situation, because a demonstration is not being made that the Area has attained the 2010 SO 2 NAAQS by the October 4, 2018, attainment date.

Section 110(a)(2)(B)(i) of the CAA requires states to establish and operate air monitoring networks to compile data on ambient air quality for all criteria pollutants. EPA's monitoring requirements are specified by regulation in 40 CFR part 58. These requirements are applicable to the state, and where delegated, to local air monitoring agencies that operate criteria pollutant monitors. The regulations in 40 CFR part 58 establish specific requirements for operating air quality surveillance networks to measure ambient concentrations of SO 2 , including requirements for measurement methods, network design, quality assurance procedures, and the minimum number of monitoring sites designated as SLAMS. In sections 4.4 and 4.5 of Appendix D to 40 CFR part 58, EPA specifies minimum SLAMS monitoring requirements for SO 2 . SLAMS produce data that are eligible for comparison with the NAAQS, and therefore, the monitor must be an approved federal reference method (FRM), federal equivalent method (FEM), or approved regional method (ARM) monitor. Appendix A to 40 CFR part 58 specifies quality assurance requirements for SLAMS monitors. The minimum number of required SO 2 SLAMS is described in sections 4.4.2 and 4.4.3 of Appendix D to 40 CFR part 58. According to section 4.4.2, the minimum number of required SO 2 monitoring sites is determined by the population weighted emissions index for each state's core based statistical area. Section 4.4.3 describes additional monitors that may be required by an EPA regional administrator.

Under 40 CFR 58.10, states are required to submit annual monitoring network plans (AMNP) for ambient air monitoring networks for approval by EPA. Each AMNP discusses the status of the air monitoring network as required under 40 CFR 58.10 and addresses the operation and maintenance of the air monitoring network, including any proposed modifications to the network. EPA reviews these AMNPs for compliance with the applicable monitoring network design requirements in 40 CFR part 58. 17 EPA also conducts regular technical systems audits (TSAs) during which EPA reviews and inspects ambient air monitoring programs to assess compliance with applicable regulations concerning the collection, analysis, validation, and reporting of ambient air quality data. 18

For the Sullivan County Area, the Tennessee Department of Environment and Conservation (TDEC) is responsible for assuring that the Area meets air quality monitoring requirements. TDEC submitted an annual monitoring network plan to EPA that describes the various monitoring sites operated by TDEC. 19 EPA approved TDEC's most recent AMNP on September 30, 2021, and concluded that the air agency's ambient air monitoring network meets or exceeds the requirements for the minimum number of SLAMS for all criteria pollutants, including SO 2 , in the Sullivan County Area. 20 For additional information related to Sullivan County Area's SO 2 monitoring network, including EPA's TSAs and the State's response and air monitoring data, please refer to EPA's technical support document (TSD) located in the docket for this proposed action (Sullivan County TSD). 21

During the round 1 SO 2 designations in 2013, Eastman operated an industrial SO 2 monitor near the facility at the Ross N. Robinson site (AQS ID: 47-163-0007). From 2010 to 2012, Tennessee certified to EPA that all industry-operated monitoring data in Tennessee, including the Eastman SO 2 monitor, met EPA regulatory requirements, including quality assurance requirements. EPA used this data as the basis for an SO 2 nonattainment determination on August 13, 2013, based on a 2009-2011 design value of 196 ppb at the Ross N. Robinson industrial monitor.

In September 2013 (and subsequently in 2016), after an EPA TSA, EPA found that Tennessee was unable to provide the required quality assurance records and documentation for the industry-operated air monitoring sites in Sullivan County. EPA determined that the Eastman industrial monitors were not meeting the quality assurance requirements in 40 CFR part 58 Appendix A and therefore not comparable to the NAAQS. As a result of EPA's TSA findings, TDEC assigned a NAAQS exclusion flag to the Ross N. Robinson industrial monitor's data in AQS beginning in September 2013 to indicate the data did not meet regulatory requirements. For the 2015-2017 period, no valid SO 2 monitoring data were collected in the Area from January 1, 2015, to July 20, 2016. Consequently, the Area did not have a valid SO 2 design value for the 2015-2017 period. See Sullivan County TSD for more details on EPA's TSAs.

To characterize SO 2 concentrations in the Sullivan County Area, Tennessee began operating a SLAMS SO 2 monitor (AQS ID: 47-163-6001) on July 21, 2016, adjacent to the Ross N. Robinson industrial monitoring site under an EPA-approved quality assurance project plan, and in accordance with EPA's regulatory requirements at Appendix D to 40 CFR part 58. The Ross N. Robinson SLAMS site is located adjacent to Eastman's industrial monitor of the same name on Wilburn Drive in Kingsport. On September 1, 2016, TDEC also installed a second monitor (AQS ID: 47-163-6002) at the Skyland Drive industrial monitoring site to further characterize high elevation SO 2 concentrations in the complex terrain around the Sullivan County Area. This monitor was sited in accordance with the normalized air modeling conducted by Tennessee in accordance with 40 CFR part 58 and EPA's SO 2 Monitoring Technical Assistance Document (TAD). 22 The Skyland Drive SLAMS monitor site is located with Eastman's industrial SO 2 monitor of the same name on Skyland Drive at Bagwell St. in Kingsport. The primary monitors  23 at each of these sites are FEM monitors. Valid hourly SO 2 data for the Area became available for the remainder of the design value period ( i.e., from July 21, 2016, to December 31, 2017) once the Ross N. Robinson SLAMS site started operating. These monitoring data have been reported to AQS and certified by TDEC. Eastman stopped reporting data to AQS in 2016 for their industrial monitors and ceased operating these monitors in 2019. During the 2015-2017 design value period, the TDEC SLAMS monitors did not collect data in 2015 or the first half of 2016. Therefore, a valid 2015-2017 design value cannot be calculated for the nonattainment area.

In 2017, Tennessee committed to expanding its existing SO 2 ambient air monitoring network within the nonattainment area. 24 In 2018, EPA approved the portion of TDEC's AMNP that added two SLAMS monitors within the Sullivan County Area to characterize the expected areas of maximum 1-hour SO 2 concentrations near the Eastman facility. 25 TDEC subsequently began operating the two additional SLAMS sites at Happy Hill (AQS ID: 47-163-6004) in October 2018 and Andrew Johnson Elementary School (AQS ID: 47-163-6003) in January 2019 to characterize the areas of expected maximum 1-hour SO 2 concentrations around the facility. These monitors were sited in accordance with the normalized air modeling conducted by Tennessee in accordance with 40 CFR part 58 and EPA's SO 2 TAD. EPA approved the SO 2 portion of TDEC's AMNP in 2016, 2018, 2019, and 2020. 26

As discussed in section II.C above, air monitoring data in the area from January 1, 2015, to July 20, 2016, did not meet the quality assurance requirements in 40 CFR part 58 Appendix A and therefore are not comparable to the NAAQS. Therefore, a valid 2015-2017 design value could not be determined for the nonattainment area. In lieu of a 2015-2017, 3-year design value, EPA has developed a weight of evidence assessment based on available air quality monitoring data and source-specific SO 2 emissions in the Area from January 2015 through December 2017 to support the determination that the Sullivan County Area did not attain the 1-hour SO 2 standard by the October 4, 2018, attainment date based on the area's air quality as of the attainment date. This section summarizes EPA's weight of evidence approach and data considerations for the nonattainment area. More detailed discussions on the air monitoring and SO 2 emission data are provided in EPA's Sullivan County TSD located in the docket for this proposed action.

As discussed in section I.B above, the applicable attainment date for the Sullivan County Area, is October 4, 2018. In accordance with Appendix T to 40 CFR part 50, determinations of SO 2 NAAQS compliance are based on three consecutive calendar years of data. To determine the air quality as of the attainment date in the nonattainment area, EPA reviewed the available data collected during the three calendar years immediately preceding the attainment date for the Sullivan County Area ( i.e., January 1, 2015, through December 31, 2017), as well as SO 2 emissions data at Eastman.

As discussed above, no NAAQS-comparable SO 2 monitoring data is available for the Area for January 1, 2015, to July 20, 2016. The available SLAMS SO 2 data for the Sullivan County Area from July 21, 2016, through December 31, 2017, have been certified by TDEC. EPA has also evaluated the completeness of these data in accordance with the requirements of 40 CFR part 50, Appendix T. The data collected by TDEC in the three calendar years preceding the attainment date meet the quarterly completeness criteria for only 6 out of 12 quarters at the Ross N. Robinson SO 2 monitor since the monitor began operation on July 21, 2016, and 5 out of 12 quarters at the Skyland Drive SO 2 monitor since the monitor began operation on September 1, 2016. The available annual 99th percentile daily maximum 1-hour average SO 2 data at each monitoring site within the Sullivan County Area for the 2015-2017 period are presented in Table 1.

The data in Table 1 indicates that although the two sites in the Sullivan County Area did not have complete data in 2015 and 2016 to determine a 3-year design value, both monitors consistently measured 99th percentile daily maximum 1-hour SO 2 concentrations above the 75 ppb level of the 1-hour NAAQS in 2016 and 2017, after beginning operation in mid-2016. Both monitors have complete 2017 datasets.

For an area to attain the 2010 SO 2 NAAQS by the October 4, 2018, attainment date, the design value based upon monitored air quality data from 2015-2017 at each eligible monitoring sites must be equal to or less than 75 ppb for the 1-hour standard. Table 1 above shows that the annual 99th percentile daily maximum 1-hour average at each monitoring site exceeds 75 ppb in 2016 and 2017. See also Table 1 in the Sullivan County TSD.

As mentioned above, in round 1 SO 2 designations, EPA designated as nonattainment the portion of Sullivan County within a 3-km radius circle centered at Eastman's B-253 powerhouse, which at the time of designations encompassed the one monitor that was violating the 2010 1-hour SO 2 NAAQS based on 2009-2011 air quality data. Table 2 shows that the SO 2 emissions, expressed in tons per year (tpy), from Eastman account for more than 99 percent of the total SO 2 emissions in Sullivan County during the 2015-2017 period relevant for this proposed determination that the Area failed to attain the SO 2 NAAQS by the applicable attainment date. Prior to the Sullivan County Area being designated as nonattainment for the 2010 1-hour SO 2 NAAQS in 2013, Eastman operated 15 coal-fired boilers at their facility to generate steam and electricity. As discussed in more detail in the Sullivan County TSD for this proposed action, Eastman's annual SO 2 emissions have been steadily decreasing since 2013 due primarily to the changes in operations of the coal-fired boilers.

As shown in Table 2, the total annual SO 2 emissions from Eastman decreased over 7,000 tpy from 17,978 tpy in 2015 to 10,746 tpy in 2017. During 2015-2017, the annual emissions were highest in 2015, when no air monitoring data is available, and emissions decreased significantly in 2016 and 2017. The decrease was primarily because of the conversion of two large coal-fired boilers, Boilers 27 and 28 in the B-253 powerhouse, from burning coal to natural gas fuel that was completed in 2016. These two boiler conversions were part of a larger SO 2 emissions control project beginning in 2014 and ending in 2018, which converted all five boilers in the B-253 powerhouse from burning coal to burn natural gas fuel. These conversions had a significant impact on SO 2 emissions: Emissions from the B-253 powerhouse decreased from 14,171 tpy in 2012 to less than 10 tpy in 2019. 27 The total annual SO 2 emissions from the entire Eastman facility decreased from 21,246 tpy in 2012 to 4,510 tpy in 2019. See Sullivan County TSD for complete details of the boiler conversions and resulting emissions changes.

It is important to also consider trends in hourly SO 2 emissions since the 2010 SO 2 NAAQS is a short-term standard that is evaluated using hourly measurements of ambient SO 2 concentrations. EPA's evaluation of Eastman's hourly emissions data found that their emissions were over 33 percent higher during the period from January 1, 2015, to June 30, 2016, (when no valid ambient monitoring data was available), than the July 1, 2016, through December 31, 2017, period (when valid ambient monitoring data show exceedances of the NAAQS). 28

To determine the air quality in the Sullivan County Area as of the applicable attainment date, EPA reviewed the available ambient monitoring data and annual and hourly SO 2 emissions data at Eastman from January 1, 2015, to December 31, 2017. As shown in Table 1, the available SO 2 ambient monitoring data in the Sullivan County Area indicates that the 99th percentile maximum daily 1-hour SO 2 concentration in both 2016 and 2017 exceeded the 1-hour SO 2 NAAQS level of 75 ppb. The primary SO 2 emissions sources in the nonattainment area are the coal-fired boilers at Eastman. Both the annual SO 2 emissions and the hourly SO 2 emissions from the Eastman boilers were significantly higher from January 1, 2015, to June 30, 2016, when air monitoring data are not available, than from July 1, 2016, through December 31, 2017, when air monitoring data are available. Ambient SO 2 concentrations are very source-oriented, and in this case, the Eastman boilers make up virtually the entire emissions inventory for the Area. Considering that the ambient measured concentrations exceeded the level of the NAAQS in 2016 and 2017, when emissions from the primary source of SO 2 were lower than they were in 2015, EPA believes it is reasonable to expect that the 99th percentile maximum daily 1-hour SO 2 concentration in 2015 likely also exceeded the level of 75 ppb. Consequently, the three-year average of: The 99th percentile value for 2015 (likely exceeded the level of the NAAQS), 2016 (exceeded the level of the NAAQS), and 2017 (exceeded the level of the NAAQS) almost certainly would have resulted in a design value that violated the NAAQS. EPA therefore proposes to find that this analysis of available ambient concentration data and SO 2 emissions data demonstrates by a weight of evidence that the Sullivan County Area failed to attain the 1-hour SO 2 NAAQS by the required attainment date of October 4, 2018.

The consequences for SO 2 nonattainment areas for failing to attain the standard by the applicable attainment date are set forth in CAA section 179(d). Under section 179(d), a state must submit a SIP revision for the area meeting the requirements of CAA sections 110 and 172, the latter of which requires, among other elements, a demonstration of attainment and reasonable further progress, and contingency measures. In addition, under CAA section 179(d)(2), the SIP revision must include such additional measures as EPA may reasonably prescribe, including all measures that can be feasibly implemented in the area in light of technological achievability, costs, and any non-air quality and other air quality-related health and environmental impacts.

In this case, the dominant source of SO 2 emissions in the Sullivan County Area is the Eastman facility. EPA expects that information concerning potential additional control measures would be collected by TDEC as part of its development of the SIP revision to address the requirements that would be triggered by a final finding of failure to attain for the Area. The State is required to submit the SIP revision within one year after EPA publishes a final action in the Federal Register determining that the nonattainment area failed to attain the applicable SO 2 standard by the applicable attainment date. In addition to triggering requirements for a new SIP submittal, a final determination that a nonattainment area failed to attain the NAAQS by the applicable attainment date would trigger the implementation of contingency measures adopted into the SIP under 172(c)(9).

Under CAA sections 179(d)(3) and 172(a)(2), the new attainment date for each nonattainment area is the date by which attainment can be achieved as expeditiously as practicable, but no later than five years after EPA publishes a final action in the Federal Register determining that the nonattainment area failed to attain the applicable SO 2 standard by the applicable attainment date. 29

Under CAA section 179(c)(1), EPA proposes to determine that the Sullivan County Area failed to attain the 2010 1-hour SO 2 standard by the applicable attainment date of October 4, 2018. This determination is based upon a weight of evidence analysis of available quality assured and certified SO 2 monitored air quality data and emissions data from January 2015 through December 2017 in lieu of a valid 2015-2017 design value. If finalized as proposed, the State of Tennessee would be required under CAA section 179(d) to submit a revision to the SIP for the Sullivan County Area. The required SIP revision for the area must, among other elements, demonstrate expeditious attainment of the standards within the period prescribed by CAA section 179(d). If finalized as proposed, the SIP revision required under CAA section 179(d) would be due for submittal to EPA no later than one year after the publication date of the final action.

EPA is soliciting public comments on the issues discussed in this notice. 30 The Agency will accept comments from the public on this proposal for the next 30 days. The deadline and instruction on how to submit comment can be found in the DATES and ADDRESSES sections of this notice. EPA will consider these comments before taking final action.

Additional information about these statutes and Executive Orders can be found at https://www2.epa.gov/laws-regulations/laws-and-executive-orders.

This action is not a significant regulatory action and therefore was not submitted to the Office of Management and Budget (OMB) for review.

This action does not impose an information collection burden under the provisions of the PRA because it does not contain any information collection activities.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This proposed action, if finalized, would require the state to adopt and submit a SIP revision to satisfy CAA requirements and would not itself directly regulate any small entities.

This action does not contain any unfunded mandate of $100 million or more, as described in UMRA (2 U.S.C. 1531-1538) and does not significantly or uniquely affect small governments. This action itself imposes no enforceable duty on any state, local, or tribal governments, or the private sector. This action proposes to determine that the Sullivan County Area failed to attain the NAAQS by the applicable attainment date. If finalized, this determination would trigger existing statutory timeframes for the State to submit SIP revisions. Such a determination in and of itself does not impose any federal intergovernmental mandate.

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

This action does not have tribal implications as specified in Executive Order 13175. The proposed finding of failure to attain SO 2 NAAQS does not apply to tribal areas, and the proposed rule would not impose a burden on Indian reservation lands or other areas where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. Thus, this proposed rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175.

EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This proposed action is not subject to Executive Order 13045 because the effect of this proposed action, if finalized, would be to trigger additional planning requirements under the CAA. This proposed action does not establish an environmental standard intended to mitigate health or safety risks.

This proposed rule is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

This rulemaking does not involve technical standards.

EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The effect of this proposed action, if finalized, would be to trigger additional planning requirements under the CAA.

On October 26, 2015, EPA promulgated revised 8-hour primary and secondary ozone NAAQS, strengthening both from 0.075 parts per million (ppm) to 0.070 ppm (the 2015 8-hour ozone NAAQS). See 80 FR 65292. The 2015 8-hour ozone NAAQS is set at 0.070 ppm based on an annual fourth-highest daily maximum 8-hour average concentration averaged over three years. Under EPA's regulations at 40 CFR part 50, the 2015 8-hour ozone NAAQS is attained when the 3-year average of the annual fourth-highest daily maximum 8-hour average ambient air quality ozone concentration is less than or equal to 0.070 ppm. See 40 CFR 50.19. Ambient air quality monitoring data for the 3-year period must meet a data completeness requirement. The ambient air quality monitoring data completeness requirement is met when the average percentage of days with valid ambient monitoring data is greater than 90 percent, and no single year has less than 75 percent data completeness as determined using Appendix U of part 50.

Upon promulgation of a new or revised ozone NAAQS, the CAA requires EPA to designate as nonattainment any area that is violating the NAAQS based on the three most recent years of ambient air quality data at the conclusion of the designation process. On April 30, 2018 (effective August 3, 2018), EPA designated a 5-county area in the Louisville metropolitan area, including Jefferson County, as a marginal ozone nonattainment area for the 2015 8-hour ozone NAAQS using 2014-2016 ambient air quality data. 1 See 83 FR 25776 (June 4, 2018). On December 6, 2018, EPA finalized a rule titled “Implementation of the 2015 National Ambient Air Quality Standards for Ozone: Nonattainment Area State Implementation Plan Requirements” (SIP Requirements Rule) that establishes the requirements that state, tribal, and local air quality management agencies must meet as they develop implementation plans for areas where air quality exceeds the 2015 8-hour ozone NAAQS. 2 See 83 FR 62998 (December 6, 2018); 40 CFR part 51, subpart CC. This rule establishes nonattainment area attainment dates based on Table 1 of section 181(a) of the CAA, including an attainment date of August 3, 2021, three years after the August 3, 2018, designation effective date, for areas classified as marginal for the 2015 8-hour ozone NAAQS.

Ground level ozone is not emitted directly into the air but is created by chemical reactions between oxides of nitrogen (NO X ) and volatile organic compounds (VOC) in the presence of sunlight. Emissions from industrial facilities and electric utilities, motor vehicle exhaust, gasoline vapors, and chemical solvents are some of the major sources of NO X and VOC. Section 182(a)(3)(B) of the CAA requires states with ozone nonattainment areas to submit a SIP revision requiring annual emissions statements to be submitted to the state by the owner or operator of each NO X and VOC stationary source. However, a state may waive the emissions statement requirement for any class or category of stationary sources which emit less than 25 tons per year (tpy) of VOC or NO X if the state provides an inventory of emissions as required by CAA section 182 that accounts for emissions from those sources. See CAA section 182(a)(3)(B)(ii). The first statement is due three years from the area's nonattainment designation, and subsequent statements are due at least annually thereafter.

Based on the nonattainment designation, Kentucky was required to develop a SIP revision satisfying, among other things, CAA section 182(a)(3)(B). On August 12, 2020, 3 LMAPCD submitted a SIP revision addressing the emissions statement requirements related to the 2015 8-hour ozone NAAQS for Jefferson County. EPA is proposing to approve the August 12, 2020, SIP submittal as meeting the requirements of section 182(a)(3)(B) of the CAA and associated federal regulations. EPA's analysis of the SIP revision and how it addresses the emissions statement requirements is discussed in the next section of this notice.

As discussed above, section 182(a)(3)(B) of the CAA requires states to submit a SIP revision requiring the owner or operator of each NO X and VOC stationary source located in an ozone nonattainment area to submit to the state annual emissions statements. The first statement is due three years from the area's nonattainment designation, and subsequent statements are due at least annually thereafter.

The August 12, 2020, SIP submission  4 contains a version of Regulation 1.06 adopted by LMAPCD on May 20, 2020 (referred to as “Version 10” by LMAPCD). The SIP revision requests that EPA incorporate Version 10 of Regulation 1.06 into the SIP, with the exception of Section 5 and references to Section 5, 5 to replace Version 9. Excluding changes to Section 5 and references to Section 5 of Regulation 1.06, Version 10 revises Version 9 by making typographical changes to the title and the “Necessity and Function” section of Regulation 1.06; changing of the title of Section 3 to “Requirements for Emissions Statements”; renumbering a portion of subsection 3.2.7 to subsection 3.3 and changing the newly renumbered subsection 3.3 by replacing references to Sections 4 and 5 with “in emissions statements”; renumbering subsection 3.3 to subsection 3.4 and adding “The District may require such additional information be submitted as necessary.”; renumbering subsection 3.4 to subsection 3.5 and revising the new subsection 3.5 to add that data required by Section 6 shall also be submitted on LMAPCD approved forms in addition to data required by Section 4; renumbering 3.5 to subsection 3.6; revising subsection 4.3 by changing a reference to Section 6 to Section 7 due to a renumbering of those sections later in the regulation; insertion of a new Section 6 titled, “Emissions Statements for Ozone Precursors,” including the addition of subsection 6.1 to read: “On or before April 15 of each year, all stationary sources of oxides of nitrogen or volatile organic compounds shall submit to the District a statement of actual emissions of those compounds.”; the addition of subsection 6.2 to read: “Exemptions from this section:”; the addition of subsection 6.2.1 to read: “Facilities with less than 25 tons per year of plant-wide actual volatile organic compounds or oxides of nitrogen emissions are exempted from this requirement, unless emissions of the other are at or above 25 tons per year. 6 The District may require sources claiming this exemption to provide adequate information to verify actual emissions for the previous year.”; the addition of 6.2.2 to read: “The District may waive this requirement for sources located in an area designated as attainment or maintenance by U.S. EPA for all National Ambient Air Quality Standards (NAAQS) for ozone.”; the addition of subsection 6.3 to read: “The emission statements submitted by the source to the District shall contain (at a minimum) all information required by Section 3 of this Regulation. The Emissions Statement submitted under Section 4 may be used to satisfy the requirements of this section.”; renumbering the former Section 6 to Section 7; and changing the new Section 7 to state that the required formal certification by a responsible official is defined in Regulation 1.02 instead of 2.16. As requested by LMAPCD, EPA is not acting on Section 5 or on the references to Section 5.

EPA has preliminarily determined that the changes to Regulation 1.06 in the August 12, 2020, SIP revision are consistent with the CAA. Aside from the addition of Section 6, the changes correct typographical errors, clarify the rule, and expand the scope of the rule. The addition of Section 6 modifies the emissions threshold for sources to submit annual emissions statements for ozone precursors to LMAPCD and is approvable for the reasons discussed below.

As allowed by CAA section 182(a)(3)(B)(ii), LMAPCD waived the emissions statement requirements for stationary sources emitting less than 25 tpy of NO X or VOC. CAA section 182(a)(3)(B)(ii) allows a state to waive the application of emissions statements requirements to any class or category of stationary sources which emit less than 25 tons per year of VOC or NO X if the state, in its submissions under section 182(a)(1) or 182(a)(3)(A), 7 provides an inventory of emissions from such class or category of sources, based on the use of the emission factors established by the Administrator or other methods acceptable to the Administrator.

Pursuant to CAA section 182(a)(3)(A), Kentucky is required to submit a revised inventory meeting the requirements of section 182(a)(1) at the end of each 3-year period after submission of the inventory under section 182(a)(1) until the Louisville, KY Area is redesignated to attainment. CAA section 182(a)(1) requires the submission of a comprehensive, accurate, current inventory of actual emissions from all sources, as described in CAA section 172(c)(3), in accordance with guidance provided by EPA. 8 To comply with CAA section 182(a)(3)(A)'s requirement to submit periodic emissions inventories, LMAPCD submits NO X and VOC emissions data to EPA's National Emissions Inventory (NEI)  9 consistent with 83 FR 62998, “Implementation of the 2015 National Ambient Air Quality Standards for Ozone: Nonattainment Area State Implementation Plan Requirements,” and 40 CFR 51.1315. That emissions data includes small stationary sources (namely, those emitting less than 25 tpy of NO X or VOC) in accordance with CAA section 182(a)(3)(B)(ii).

For the reasons discussed above, EPA has preliminarily determined that Jefferson County's emissions statement regulation meets the requirements of the CAA, including section 182(a)(3)(B) and the SIP Requirements Rule for the 2015 8-hour ozone NAAQS for the Jefferson County portion of the Louisville, Kentucky-Indiana Area.

In this document, EPA is proposing to include in a final rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference Louisville Metro Air Pollution Control District Regulation 1.06— Stationary Source Self-Monitoring, Emissions Inventory Development, and Reporting, Version 10, District effective on May 20, 2020, with the exception of Section 5 and any references to Section 5. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at EPA Region 4 office (please contact the person identified in the For FURTHER INFORMATION CONTACT section of this preamble for more information).

EPA is proposing to approve Kentucky's August 12, 2020, SIP revision as discussed in Section II, above. If this proposal is finalized, the text of Jefferson County Regulation 1.06 in the SIP will reflect the version of the rule effective on May 20, 2020 (Version 10) with the exception of Section 5 and any references to Section 5. EPA proposes to find that the Commonwealth's submission meets the requirements of sections 110 and 182 of the CAA.

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

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

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

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

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

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

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

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

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

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

The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

Comments on this proposed rule must be in writing and submitted by the method specified in the ADDRESSES section above. Comment submissions must include the title and RIN of this proposed rule. Please include your name, title, organization, postal address, telephone number, and email address in the text of the message.

All comments will be made available for public review at https://www.regulations.gov without changes, including the identifying information of the commenter, if provided. We recommend that commenters do not submit information that is considered confidential business information (CBI) or any information that is otherwise protected from disclosure by statute.

USAID will only address substantive comments on the rule that are relevant and within the scope of the proposed rule.

USAID relies heavily on the USPSC mechanism to advance its foreign assistance mission and mandate. Approximately ten percent of USAID's total workforce is USPSCs, of which about half perform under contracts where the place of performance is a USAID cooperating country abroad. The PSC Association, an Agency employee resource group representing USAID USPSCs, raised concerns to USAID's leadership about the equity of fringe benefits between U.S. direct-hire employees (USDH) and USPSCs. As a result, USAID has determined, as a matter of policy, to revise the AIDAR to provide the following changes as part of the Agency's standard USPSC fringe benefits package.

On December 20, 2019, the President signed the National Defense Authorization Act (NDAA) for Fiscal Year 2020, which includes the provisions of the new Federal Employee Paid Leave Act (FEPLA), making paid parental leave available to certain categories of Federal civilian employees. (Pub. L. 116-92.) FEPLA amended the Family and Medical Leave Act (FMLA) provisions in Title 5, United States Code (U.S.C.) to provide up to 12 weeks of paid parental leave to covered Federal employees in connection with the birth or placement (for adoption or foster care) of a child occurring on or after October 1, 2020. Paid parental leave granted in connection with a qualifying birth or placement under FEPLA is substituted for unpaid FMLA leave and is available during the 12-month period following the birth or placement. This particular benefit does not apply to contractors, including personal service contractors, of Federal agencies.

The Department of State (DoS) recently revised its policies in the Foreign Affairs Manual (3 FAM 9116) to authorize, as a matter of policy, paid parental leave for its USPSCs based on Title 1 of the Family Medical Leave Act (28 U.S.C. 2601). In USAID's meetings with the PSC Association earlier this year, Agency leadership indicated its intention to pursue several improvements to benefits for USPSCs, including paid parental leave.

On October 1, 2021, the USAID Administrator approved, as a matter of Agency policy, the provision of a similar paid parental leave benefit for USAID USPSCs to serve as an indicator of the Agency's commitment to equity for USPSCs. Eligible USPSCs may be granted up to 12 workweeks (using the term “workweek” as described in appendix D, section 12, clause 4) of paid parental leave in connection with the birth of a child, or a new placement of a child for adoption or foster care, for which the USPSC assumes a parental role. USAID's paid parental leave benefit for its USPSCs is based on (1) the paid parental leave benefit provided to certain categories of Federal civilian employees under the FEPLA, and (2) the paid parental leave benefit policy that the Department of State (DoS) recently approved for its American personal service contractors.

In its discussions with the Agency, the PSC Association raised a concern that “USPSCs are not eligible for the Foreign-Transfer Allowance (FTA) and Home-Service Transfer Allowances (HSTA) and yet incur the same costs as Foreign Service Officers (FSOs) when moving from one post of assignment to another.” The PSC Association requested that the Agency “[allow] these costs to be included in the Travel Authorizations of USPSCs [who are] moving between posts (or to/from Washington) when their contracts are consecutive.”

In accordance with 5 U.S.C. 5924(2), an employee assigned to a foreign area may be granted a transfer allowance. Using this authority, USAID grants FTA and HSTA to its direct-hire employees under its policies in Automated Directives System (ADS) 477, particularly FSOs, following Department of State Standardized Regulations (DSSR) 240 and 250 respectively, to offset expenses incurred by the employee incident to establishing oneself at any “post of assignment” abroad, or back in the U.S. for a new assignment after returning from a post abroad, subject to the employee fulfilling a requirement for continued service.

Based on the applicable definition of “employee” in 5 U.S.C. 5921(3), the Agency determined that USPSCs are not entitled to these allowances. The AIDAR has never authorized a benefit analogous to the FTA, HSTA, or any similar allowance in DSSR for USPSCs, because the Agency does not transfer a USPSC to another Mission under a directed assignment, unlike FSOs who are subject to worldwide availability and are thus required to move as a condition of continued employment.

In October 2020, USAID's Acting Administrator exercised the Agency's policy discretion to authorize the creation of a “relocation expense” benefit, as proposed by this rule, that mirrors applicable elements of the FSO transfer allowances. The proposed relocation expense benefit addresses two of the four portions of the FTA that the Agency has adapted appropriately to the PSC mechanism: (1) The miscellaneous-expense portion; and, (2) the pre-departure subsistence portion (similar to Sections 242.1 and 242.3 of the DSSR, respectively). The miscellaneous expense is a flat amount, calculated based on family size, to offset common relocation expenses such as are identified and estimated in the DSSR. The subsistence portion offsets temporary lodging costs incurred for up to 10 days before travel to post, using per-diem rates based on the U.S. locality of the USPSCs legal place of residence.

There are two contexts in which persons will be eligible for the two portions of the USAID USPSC relocation expense benefit: (1) An individual located in the U.S. who enters into a new contract for 12 consecutive months or more of continuous service abroad qualifies for both the miscellaneous and pre-departure subsistence expense portions (paragraphs (a) and (b) of the proposed regulatory text); and (2) a contractor currently performing services abroad as a USAID USPSC who undertakes a new, 12-month minimum USPSC contract for continuous service abroad at a different Mission immediately following their current contract qualifies only for the miscellaneous expense portion (paragraph (a)). The relocation benefit will not be authorized for USPSCs who are returning to the U.S. for a new USPSC contract with USAID because the Agency does not pay relocation costs for any new position in the U.S. under any of its staffing mechanisms.

The Agency determined that the principal rationale for the relocation benefit for USPSCs is equity between its USDH employees and USPSCs. Thus, the change in policy will provide USPSCs with a relocation benefit that is similar to that received by USAID's USDH to the practicable extent possible. USAID's provision of this benefit will establish a precedent among other U.S. Government departments and agencies that also contract for personal services.

This proposed rule will revise appendix D, section 12, clause 5, “Leave and Holidays,” specifically to update the provision of family and medical leave to allow for any prior federal service to align with the provision of paid parental leave, and to add a separate new paragraph for the provision of paid parental leave itself.

AIDAR appendix D contains the Agency's standard contract terms and conditions for USAID's USPSCs, and this proposed rule amends section 12, General Provisions, with a new clause to provide the relocation expense fringe benefit authorized for USPSCs abroad.

This proposed rule has been drafted in accordance with Executive Orders (E.O.s) 12866 and 13563, which direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equality). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. USAID has reviewed the regulation to ensure its consistency with the regulatory philosophy and principles set forth in E.O.s 12866 and 13563, and determined that addressing the Agency's workforce equity concerns justifies the cost impacts of the changes proposed by this rule. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993.

As a regulatory matter, the cost of the rule-making process to incorporate these revisions into the regulation is also justified. The AIDAR's appendices include all the compensation and benefits available to personal services contractors. Therefore, the Agency needs these revisions to keep the regulation consistent, complete, and transparent to industry, other U.S. Government agencies, and the general public.

There are no costs to the public associated with this rulemaking. The Agency's direct costs for each benefit proposed by this revision is as follows:

It is estimated that the average annual incremental cost to the Agency to provide the PPL benefit is $1.2 million starting in Year 1. This estimated cost assumes a base of 1,193 USPSCs and, over a 10-year period, an average of 47 USPSCs will make use of the PPL benefit each year. It further assumes each of the 47 USPSCs will take full advantage of 12 weeks of PPL paid leave for an average approximate cost of $25,600 per USPSC. The annual increase in cost to the Agency of providing the PPL benefit is 2.70% of the previous year's dollar cost. This 2.70% increase is a function of the assumed annual growth in the number of USPSCs and their salary and benefits.

The costs calculated for this benefit are based on upper end estimates to illustrate the potential impact of this added fringe benefit. The estimated average Year 1 cost to the Agency for the proposed relocation benefit, based on 537 USPSCs performing abroad, is $1.29 million. The estimated average cost over a five-year period is $6.45 million.

The Director of the Office of Acquisition and Assistance in USAID's Bureau for Management, acting as the Head of the Agency for purposes of the Federal Acquisition Regulation (FAR), certifies that this rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. Consequently, the Agency has not prepared a regulatory flexibility analysis.

This rule does not contain information collection requirements, and a submission to OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) is not required.

For the reasons discussed in the preamble, USAID proposes to amend 48 CFR chapter 7 as follows:

The revisions and additions read as follows:

Why we need to publish this document. Under the Act, a species may warrant protection through listing if it is endangered or threatened throughout all or a significant portion of its range. In 2013, we issued proposed rules to list the Graham's beardtongue and White River beardtongue (beardtongues) and to designate critical habitat for the beardtongues. This document withdraws the proposed listing rule because we have now determined that the factors affecting the beardtongues as identified in that proposed rule are not as significant as previously understood in 2013, such that listing is not warranted for these species. Because we are withdrawing the proposed listing rule for the beardtongues, we also withdraw the proposed critical habitat designation for these species.

The basis for our action. The Act defines an “endangered species” as a species that is in danger of extinction throughout all or a significant portion of its range and a “threatened species” as a species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. Under the Act, we may determine that a species is an endangered or threatened species because of any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence (16 U.S.C. 1533(a)(1)). We have determined that the stressors affecting the beardtongues as identified in the proposed listing rule (energy development, cumulative impacts from livestock grazing, invasive weeds, small population size, and climate change) are not as significant as previously understood at the time of publication of the proposed rule ( i.e., in 2013).

On August 6, 2013, we published a proposed rule to list Graham's beardtongue and White River beardtongue as threatened species (78 FR 47590) under the Act (16 U.S.C. 1531 et seq. ). Please refer to that proposed rule for a detailed description of previous Federal actions concerning Graham's beardtongue and White River beardtongue prior to 2013. On August 6, 2013, we also published a proposed rule to designate critical habitat for both species (78 FR 47832). Following publication of our August 6, 2013, proposed rules, the same parties (Bureau of Land Management (BLM); U.S. Fish and Wildlife Service (Service); Utah Department of Natural Resources (DNR); State of Utah School and Institutional Trust Lands Administration (SITLA); Uintah County, Utah) that had drafted a 2007 conservation agreement (CA) for Graham's beardtongue and White River beardtongue reconvened to evaluate species' surveys and distribution information and to reassess the conservation needs of both Graham's and White River beardtongues. Based on this evaluation, the parties completed a new conservation agreement (2014 CA, entire) that specifically addressed the threats identified in our August 6, 2013, proposed listing rule (78 FR 47590). Additional signatories to the 2014 CA included the Utah Public Lands Policy Coordination Office (PLPCO) and Rio Blanco County, Colorado. While private landowners were not signatories to the 2014 CA, some private lands are designated as conservation areas under the 2014 CA, and Uintah County coordinates with and represents the interests of affected landowners.

In the 2014 CA, the parties committed to conservation actions including establishing 44,373 acres (ac) (17,957 hectares (ha)) of occupied and unoccupied suitable habitat as protected conservation areas with limited surface disturbance and avoidance of Graham's and White River beardtongue plants by 300 feet (ft) (91.4 meters (m)). Additionally, BLM agreed to avoid surface disturbances within 300 ft (91.4 m) of Graham's and White River beardtongue plants within and outside of conservation areas on BLM land. The parties also developed conservation measures to address the cumulative impacts from livestock grazing, invasive weeds, small population size, and climate change by continuing species monitoring, monitoring climate, reducing impacts from grazing when and where detected, and controlling invasive weeds.

On May 6, 2014, we announced the reopening of the public comment period on our August 6, 2013, proposed listing and proposed designation of critical habitat rules until July 7, 2014 (79 FR 25806). In that document, we also announced the availability of a draft economic analysis (DEA), draft environmental assessment (EA), draft 2014 CA, and amended required determinations section of the critical habitat proposal. We also announced the availability of 2013 survey results for Graham's and White River beardtongue plants and our intent to hold a public information meeting and public hearing.

On August 6, 2014, we withdrew the proposed rule to list Graham's beardtongue and White River beardtongue as threatened species (79 FR 46042). That withdrawal was based on our conclusion that the threats to the species as identified in the August 6, 2013, proposed listing rule were no longer as significant as we previously determined, such that the species did not meet the Act's definitions of an “endangered species” or of a “threatened species.” We based this conclusion on our analysis of new information concerning current and future threats to the species and conservation efforts. As a result, we also withdrew our associated August 6, 2013, proposed rule to designate critical habitat for these species.

On March 26, 2015, a complaint was filed in the District Court for the District of Colorado by Rocky Mountain Wild, Center for Biological Diversity, Utah Native Plant Society, Southern Utah Wilderness Alliance, Grand Canyon Trust, Western Resource Advocates, and Western Watersheds Project challenging the withdrawal of the proposal to list Graham's beardtongue and White River beardtongue ( Rocky Mountain Wild v. Walsh, No. 15-615 (D. Colo. filed Mar. 26, 2015)). The State of Utah, SITLA and PLPCO, and Uintah County, Utah, intervened in the litigation (Mot. to Intervene, ECF No. 10). On October 25, 2016, the court found that the withdrawal was contrary to the Act because (1) we concluded that yet-to-be-enacted regulatory and non-regulatory measures mandated by the 2014 CA were “existing regulatory mechanisms”; (2) we failed to account for the 2014 CA's expiration when determining whether the beardtongues face material threats in the “foreseeable future”; and (3) we took into account economic considerations when imposing a 300-ft (91.4-m) buffer zone around each beardtongue (Order Vacating Admin. Action and Req. Meet-and-Confer Between the Parties, ECF No. 59).

However, before entering final judgment, the court ordered that the parties meet to discuss whether the 2014 CA could be modified in a manner satisfactory to plaintiffs. Those meetings occurred, but in a December 15, 2017, Joint Status Report to the court, the parties reported that they were unsuccessful at reaching agreement. Therefore, on December 18, 2017, the court entered final judgment, vacating our August 6, 2014, withdrawal, and reinstating the proposed listing and critical habitat rules. As a result, the August 6, 2013, proposed listing and critical habitat rules (collectively referred to as the 2013 proposed rules) for Graham's beardtongue and White River beardtongue were reinstated, and both species once again became proposed for listing under the Act. The court did not establish a firm deadline for us to reach a new final listing determination but provided that plaintiffs could return to the court to seek such a deadline if the Service did not publish a new final determination by September 30, 2019. The plaintiffs have not yet done so.

On September 12, 2019, we reopened the comment periods on the 2013 proposed rules for 30 days, ending October 15, 2019 (84 FR 48090). We also announced that we would reevaluate the status of both species to determine whether they meet the Act's definition of an “endangered species” or of a “threatened species,” or whether they are not warranted for listing. We invited the public to comment on the 2013 proposed rules, and we requested new information regarding Graham's beardtongue and White River beardtongue that had become available since the publication of the 2013 proposed rules to inform our evaluation. We also announced the availability of new survey and monitoring information that had become available since the publication of our 2013 proposed rules, and we announced the availability of the final 2014 CA, a 2018 addendum to the 2014 CA, and modified conservation areas under the 2014 CA.

We prepared two Biological Reports for Graham's beardtongue and White River beardtongue (Service 2021a, Service 2021b) (hereafter referred to as the Biological Reports), using concepts from the Service's species status assessment (SSA) framework (Smith et al. 2018, entire). The first Biological Report (Service 2021a, entire) represents a compilation of the best scientific and commercial data available concerning the current condition of the two species, including the impacts of past and present influences (both negative and beneficial) on the beardtongues, as well as a discussion of our recommendations for avoidance buffers and surface disturbance caps. The second Biological Report (Service 2021b, entire) represents a compilation of the best scientific and commercial data available concerning the projected future condition of the two species, including the impacts of influences (both negative and beneficial) that are anticipated to affect the beardtongues into the future. In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review of listing actions under the Act, we sought the expert opinions of three appropriate subject matter specialists regarding our Biological Report of Current Condition and five appropriate subject matter specialists regarding our Biological Report of Future Condition for the two beardtongues. We received responses from three specialists on our Biological Report of Current Condition and from four specialists on our Biological Report of Future Condition, which informed the underlying analysis and scientific basis for this document. (Some peer reviewers reviewed both biological reports). In preparing this listing determination, we incorporated the results of these reviews into our final biological reports, as appropriate.

We also sent the Biological Reports to partners, including the signatories to the 2014 CA (BLM; Utah DNR; SITLA; PLPCO; Uintah County, Utah; Rio Blanco County, Colorado). The Biological Reports and other materials relating to this listing determination can be found on the Mountain-Prairie Region website at https://www.fws.gov/mountain-prairie/es/GrahamsAndWhiteRiverBeardtongue.php and at http://www.regulations.gov under Docket No. FWS-R6-ES-2019-0029.

As stated above under Previous Federal Actions, on August 6, 2013, we published proposed rules to list Graham's beardtongue and White River beardtongue as threatened species and to designate critical habitat (78 FR 47590 and 47832). These proposed rules each had a 60-day comment period, ending October 7, 2013. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposals. Newspaper notices inviting general public comment and announcing our informational meeting and public hearing were published in the Salt Lake Tribune, Deseret News, and Uintah Basin Standard. On May 6, 2014, we announced the reopening of the public comment period on our 2013 proposed listing and proposed designation of critical habitat rules until July 7, 2014 (79 FR 25806). We received requests for a public hearing, which was held in Vernal, Utah, on May 28, 2014.

Subsequently, we withdrew the 2013 proposed rules and then later reinstated them following litigation. As a result, on September 12, 2019, we again reopened the comment period on the 2013 proposed rules for 30 days (84 FR 48090). We then developed two Biological Reports regarding the two species' current and future conditions (Service 2021a, 2021b), each of which underwent peer review. Responses to comments we received during the comment period for our September 12, 2019, document and from peer reviews of the Biological Reports are provided below. For additional responses to comments for which there is no updated information since 2014, please see the August 6, 2014, withdrawal of the 2013 proposed rules (79 FR 46042). All substantive information provided during all peer reviews and all comment periods has either been incorporated directly into this final determination or our Biological Reports as appropriate or is addressed below. Comments related to our 2013 proposed critical habitat designation are not addressed here; given the decision to withdraw the listing proposal, no further assessment of the proposed critical habitat designation is necessary at this time.

We reviewed all comments on the Biological Reports that we received from the peer reviewers for substantive issues and new information regarding the beardtongues. One peer reviewer provided favorable support of the metrics used to evaluate the beardtongues' current and future condition and provided no edits to the documents. Three peer reviewers provided additional information, clarifications, and suggestions, which we have either incorporated into the Biological Reports or addressed below.

(1) Comment: One reviewer stated that it does not seem logical that large Graham's beardtongue populations contain such a wide range of plant abundance (between 171 and 19,735 plants). The reviewer recommended that we provide different delineations of small, medium, and large population sizes for the beardtongues, and they suggested the following categories: Small population size between 0 and 100 plants; medium population size between 101 and 1,000 plants; and large population size greater than 1,000 plants.

Our Response: The recommendation may be appropriate for species that do not have a population viability analysis (PVA), or a peer-reviewed PVA. However, we delineated the population size categories based on a peer-reviewed PVA for the beardtongues. We calculated the extinction risk of each beardtongue population and considered large Graham's beardtongue populations to have an extinction risk of less than five percent over a 50 year period (USFWS 2021a, pp. 59-61). Large Graham's beardtongue populations must have a minimum of 131 plants and the largest population with 19,735 plants (population 27) has a much lower extinction risk (less than one percent) compared to another population with 171 plants (between four and five percent). Our large population delineation identifies a lower threshold than what the reviewer suggested since it is based on a species-specific evaluation rather than generalized categories that do not take into account a species' life history or demography. We considered the PVA results to provide the best available information to delineate the beardtongues' population size categories, and as such did not make any changes in response to this comment.

(2) Comment: One reviewer recommended that our 300-ft (91.4-m) avoidance buffer incorporate pollinator foraging distances for the primary pollinators to ensure adequate beardtongue pollination and reproduction.

Our Response: We considered the effects to individual plants, populations, and pollinators when developing our avoidance buffer and surface disturbance cap recommendations. Our recommended 300-ft (91.4-m) avoidance buffer protects individual beardtongue plants from occupied habitat loss and effects from fugitive dust and invasive weeds. Our recommended surface disturbance caps limit pollinator habitat loss and were designed to be used in tandem with the avoidance buffer to maintain population-level processes such as visitation and gene flow by pollinators as well as the condition of the beardtongues' populations. We evaluated pollinators and their needs at the beardtongue population level to support gene flow between plants and population-level reproduction rather than at an individual plant level. We incorporated pollinator foraging distances into our surface disturbance cap recommendation to restrict the amount of habitat loss and fragmentation within a beardtongue population's pollinator habitat. We delineated a population's pollinator habitat based on the foraging distance of the beardtongues' largest pollinators: 2,297 ft (700 m) for Graham's beardtongue and 1,640 ft (500 m) for White River beardtongue. Based on our review of the best available information and current habitat loss within pollinator habitat of beardtongue populations, the needs of pollinators and beardtongue reproduction can be supported even with some loss of pollinator habitat that occurs outside of the 300-ft (91.4-m) plant avoidance buffer (USFWS 2021a, Appendix E). Current levels of habitat loss within the pollinator habitat of long-term monitoring plots are low, ranging from zero to five percent, with no statistically significant negative effects to pollinator visitation or beardtongue reproduction (USFWS 2021a Appendix E). Published literature indicates that these negative effects are realized after considerable habitat loss has occurred for other species and habitats (USFWS 2021a Appendix E). Our recommendations are consistent with supporting the needs of pollinators and population-level gene flow within relatively intact habitat conditions. Together, the avoidance buffer and surface disturbance caps within conservation areas should conserve beardtongue plants and their pollinators from stressors at two different scales.

(3) Comment: One reviewer commented that our knowledge of the beardtongues' current distribution is incomplete due to lack of surveys on Tribal lands and the State of Utah Department of Wildlife Resources lands in Range Unit 2. Surveys are needed in these areas.

Our Response: We acknowledge the lack of surveys in these areas in our Biological Reports. Our determinations on listing the two species are based on the best available scientific information.

(4) Comment: One reviewer commented that we omitted review surveys, impacts, and new information for the beardtongues from the Questar Mainline 103 pipeline replacement project. White River beardtongue plants had established in a roadside berm that was created by the initial disturbance between 2009 and 2012. Field observations indicate that White River beardtongue plants were able to establish or reestablish in roadcuts and other disturbance areas.

Our Response: We reviewed the 2012 environmental assessment prepared by the Federal Energy Regulatory Commission (FERC) for this project, and pre-construction surveys were performed for the beardtongues; however, no beardtongue plants were located within the project right-of-way. We mention in the Biological Reports that White River beardtongue occupies some disturbance areas and exhibits some tolerance to habitat disturbance.

(5) Comment: One reviewer commented that it may be worth noting that sparsely vegetated shale barren habitat on ridgelines that are considered potential habitat for the beardtongues are attractive off-road vehicle (OHV) routes.

Our Response: We mention the potential for OHV use to occur in the beardtongues' habitat in the Biological Reports. However, the best available information does not indicate that OHV use is occurring there or impacting plants or populations. Therefore, we did not consider OHV use as a stressor in our analysis.

(6) Comment: One reviewer commented that the beardtongues' survey results in the Red Leaf lease area on State lands may not be included in the population estimates or maps provided in the draft Biological Report.

Our Response: We reviewed our dataset and confirmed that the beardtongues' survey results for this area are included in the population estimates and maps provided in the Biological Report.

(7) Comment: One reviewer recommended that we include the 2020 beardtongues' survey results in Colorado in the Biological Reports.

Our Response: We added the 2020 survey results to the Biological Reports and considered them in our evaluation of the beardtongues' current and future condition. These survey results increased the number of Graham's beardtongue plants in population 22 by 565 plants and reduced the number of White River beardtongue plants in population 10 by 1,039 plants.

(8) Comment: One reviewer questioned whether the high energy development scenario is plausible over the next 10 years because of the lack of oil shale commercial development in the Uinta Basin and the checkerboard pattern of landownership that would add complexity, time, and uncertainty to the development of these lands.

Our Response: We intended the high energy development scenario to illustrate the worst-case impacts from energy development. We also recognize that this scenario, while plausible, may be less likely to occur than other scenarios, and that actual future impacts may range anywhere between that scenario and the current condition.

(9) Comment: Several commenters stated that the Service should complete an updated threat assessment and provide the public with an opportunity to comment prior to making a final listing determination and critical habitat designation. Commenters believe that threats documented in the 2013 proposed listing rule are still present and oil spills from pipeline ruptures are a new threat associated with energy development that was not previously addressed. Commenters stated that White River beardtongue should be listed as an endangered species, not a threatened species, due to imminent threats. One commenter mentioned the landscape surrounding beardtongue populations in Colorado has been heavily fragmented by existing energy development infrastructure; if completed, a proposed rail line in the Uinta Basin could increase energy development impacts to the beardtongues.

Our Response: We completed a new threat assessment that is presented in our Biological Reports (Service 2021a, entire; 2021b, entire), and summarized in this document. We evaluated stressors to the beardtongues and considered new information, including current and projected future levels of habitat loss and fragmentation within the beardtongues' pollinator habitat and planned projects including the proposed Uinta Basin rail line. The best available information does not indicate that negative impacts to the beardtongues have occurred or are expected to occur from oil spills.

(10) Comment: Multiple commenters mentioned the need for improved surface disturbance caps and buffers to protect the plants from negative impacts from development. The 300-ft (91.4-m) buffer from surface-disturbing activities as outlined in the 2014 CA is less than the 2,297-ft (700-m) proposed critical habitat area surrounding known occurrences; buffers of at least 650 ft (200 m) are needed to conserve pollinators until the research by Barlow and Pavlik is completed to determine minimum habitat areas for populations.

Our Response: We evaluated the best available information to inform our recommended avoidance buffer and surface disturbance caps in our Biological Report of current condition (Service 2021a, pp. 81-82). For more information refer to our response to Comment 2, above. We did not rely on the Barlow and Pavlik road impact evaluation to inform our avoidance buffer recommendation, because we and a peer reviewer identified concerns regarding their assumption that roads were major drivers of the beardtongues' plant size and reproductive effort, and the lack of evidence supporting this assumption from published literature (Barlow and Pavlik 2020, entire; McNellis 2021a and 2021b, entire; Service 2021a, p. 41). We considered the Barlow and Pavlik road impact evaluation to be an exploratory model where the results are predictions to be tested and do not demonstrate causation (Service 2021a, p. 41).

(11) Comment: Multiple commenters were concerned that the conservation areas in the 2014 CA protect less acreage (44,373 ac) than the amount of area that was proposed for critical habitat (67,959 ac (27,502 ha)). The 2014 CA protects only 78 percent of the population of Graham's beardtongue and 59 percent of the population of White River beardtongue; the conservation areas do not include all White River beardtongue plants and habitat in the Book Cliffs, which the commenters believed was insufficient. They recommend expanding conservation areas on Federal and State lands to avoid listing both species as threatened under the Act. Multiple commenters stated that critical habitat should include all plants identified in surveys to-date. Three commenters stated that research on White River beardtongue identified the taxon has small and isolated populations with low levels of genetic diversity (Rodriguez-Peña et al. 2018), and it is important to protect habitat for as many populations as possible to ensure future genetic viability.

Our Response: There are many ways to achieve conservation of the beardtongues. The proposed critical habitat designation identified all populations known in 2013, with the understanding that critical habitat alone would not convey or guarantee conservation, because critical habitat protections for plants do not apply on non-Federal lands without a Federal action. The proposed critical habitat designations for the two beardtongue species overlapped and totaled 75,846 ac (30,694 ha). Proposed critical habitat on Federal lands alone would apply to only 38 percent of the population of Graham's beardtongue (21,301 plants) on 41,668 ac (16,862 ha), and 27 percent of the population for White River beardtongue (7,942 plants) on 5,758 ac (2,330 ha) (Service 2021a, Appendix B, p. 86). The 2014 CA conserves a smaller amount of habitat in designated conservation areas (42,993 ac (17,399 ha)) than we proposed as critical habitat but provides protections to a similar percentage of the Graham's beardtongue population and a much larger percentage of the White River beardtongue population than afforded by proposed critical habitat on Federal lands. The 2014 CA protects 41 percent of Graham's beardtongue plants (23,333 plants) and 66 percent (19,710 plants) of White River beardtongue plants on Federal and non-Federal lands (Service 2021b, pp. 44-45). The 2014 CA conservation areas support 1,094 White River beardtongue plants in the Book Cliffs population to maintain a large population size with a low risk of extinction (less than 5 percent risk of extinction over a 50-year period). In addition, the conservation areas are strategically placed to provide habitat connectivity, thereby conserving the resiliency, redundancy, and representation ( e.g., genetic diversity) of the beardtongues across their ranges (Service 2021a, pp. 42-45; Penstemon Conservation Team 2014, entire; Penstemon Conservation Team 2018b, 2018c, entire).

(12) Comment: Multiple commenters expressed concern that the private parties will end their participation in the 2014 CA in 2029.

Our Response: The duration of the 2014 CA is 20 years (until 2034) for Federal, State, and county parties, and 15 years (until 2029) for private parties. During this time, we hope that information regarding the likelihood of energy development beyond 2030 becomes available. We committed to assess the status of the beardtongues by December 31, 2028, prior to the private parties leaving the agreement. If, during or after this timeframe, either species meets the Act's definition of an “endangered species” or a “threatened species,” we can act to protect the species through the listing process. If the beardtongues are listed under the Act, the 2014 CA expires to avoid a situation where the parties are bound to both the commitments in the agreement and the requirements of the Act. This conservation framework provides a consistent regulatory framework for landowners or managers who may be affected, while still protecting the beardtongues under either scenario.

(13) Comment: Commenters expressed concern that the voluntary nature of the 2014 CA by private parties is inadequate and will lead to inconsistent management of the beardtongues. The Federal agencies do not have regulatory mechanisms in place to enforce the conservation measures in the 2014 CA on Federal land, and there are no regulatory mechanisms in place that provide the necessary landscape-level protections to the beardtongues from the threats identified in the 2013 proposed rules. The results of livestock monitoring and assessments were not made available to the public; commenters questioned whether monitoring was conducted according to the schedule identified in the livestock grazing plan.

Our Response: The 2014 CA was developed by county, State, and Federal entities that have the authority to regulate and permit activities on lands within their jurisdiction that overlap with the beardtongues' habitat. These parties are implementing the voluntary agreement and providing protections to the beardtongues that we considered in this listing determination. We summarize the regulatory mechanisms implemented by each party, the accomplishments of the 2014 CA, livestock monitoring, and corrective actions in our 2021 Biological Reports (Service 2021a, pp. 42-45, 54-56; 2021b, pp. 43-48).

(14) Comment: Multiple commenters stated the beardtongues continue to be at risk of extinction due to small population size and isolation. The 2018 population size is misleading and unknown because: (a) Surveys were performed inconsistently and haphazardly across the beardtongues' ranges and were not derived from annual censuses or a scientifically robust sampling design; (b) plants counted in one year may have been counted in subsequent years; and (c) the Service's assumptions that no previously documented plants have died of natural or human causes or that all previously documented plants have been replaced by new plants are incorrect, and there is no data to support them. One commenter noted that some beardtongue species tend to form an extended underground root system and that the beardtongues' total population sizes could be much smaller than our population estimates.

Our Response: We stated in our 2021 Biological Reports and past rulemakings that the total known number of beardtongues has increased over time based on new survey information rather than increasing population trends. Our 2018 population estimates were based on long-term demographic monitoring information that indicate adult beardtongue plants are long-lived (30 years or more) and maintain high survival rates, and populations are generally stable (Pavlik et al. 2015, entire). Therefore, it is reasonable to assume that plants continue to persist on the landscape unless there is human modification of the habitat, or there are high-intensity sheep grazing incidents. We and our partners reviewed all survey information and removed duplicate records to minimize the double-counting of individual plants. There is no indication that the beardtongues form extended underground root systems based on past excavations and translocations of individual plants.

(15) Comment: Multiple commenters requested an extension of the public comment period and the release of survey results and livestock monitoring data that became available after the publication of the 2013 proposed rules.

Our Response: We have held three comment periods on the proposed rules. We held our first comment period for 60 days, from August 6 to October 7, 2013 (see 78 FR 47590 and 47832); our second comment period for 60 days, from May 6 to July 7, 2014 (see 79 FR 25806), during which we also held a public information meeting and public hearing on May 28, 2014; and our third comment period for 30 days, from September 12 to October 15, 2019 (see 84 FR 48090). Therefore, we have provided sufficient opportunities for the public to comment on the proposals. During each of the three comment periods, we made available any survey and livestock monitoring data that we had at that time. Specifically, during our third public comment period in 2019, we announced the availability of the latest survey results and other information that had become available since 2013.

(16) Comment: One commenter stated that incompatible livestock grazing is occurring on Federal lands, all beardtongue sites within Federal conservation areas should meet BLM Rangeland Health Standards, and monitoring should continue to assess habitat conditions and inform management decisions.

Our Response: Livestock grazing appears to be compatible with conservation of the beardtongues except for intensive sheep grazing events that occur in localized areas (USFWS 2021a, pp. 54-56). The BLM is addressing livestock impacts to the beardtongues on Federal lands as per the 2014 CA. The 2014 CA states that BLM will monitor beardtongues' impacts from grazing and will adjust grazing regimes accordingly to reduce associated impacts. For example, BLM implemented corrective actions that were successful in removing grazing impacts to Graham's beardtongue in the Raven Ridge Area of Critical Environmental Concern (ACEC) in Colorado, and BLM continues to monitor livestock impacts to the beardtongues and evaluate rangeland health (Service 2021a, p. 55). BLM is required to manage rangelands as per the requirements of 43 CFR part 4100, subpart 4180 (“Fundamentals of Rangeland Health and Standards and Guidelines for Grazing Administration” (Rangeland Health)) and implement the agency's policy guidelines identified in the Standards for Rangeland Health.

(17) Comment: A commenter stated that surface disturbance of all kinds affects the beardtongues' pollinators; cattle trampling results in greater impacts to the ground surface than other herbivores.

Our Response: The best available information indicates that the beardtongues maintain a diverse pollinator assemblage and adequate reproduction under permitted grazing regimes. Monitored populations of the beardtongues that overlap active grazing allotments reproduce by seed on an annual basis and demonstrate reproductive rates that are not pollinator-limited (Barlow and Pavlik 2020, p. 5).

(18) Comment: A commenter stated that monitoring reports indicate that herbivory from many sources may impact the beardtongues' ability to successfully replenish the seedbank. Herbivory resulted in high levels of stress to Graham's beardtongue in 2014, and low seedling survivorship.

Our Response: Herbivory to the beardtongues appears to be a natural stressor to beardtongue individuals and is primarily attributed to native grazers ( e.g., rodents, rabbits), rather than livestock (Service 2021a, p. 54). Monitored populations of both species continue to remain stable despite the regular frequency, and occasional high levels, of herbivory.

(19) Comment: The State of Utah provided information that the number of new oil and gas wells dropped by 67 percent between 2014 and 2015, due to the drop in crude oil and natural gas prices; should prices rebound, the increasing use of horizontal well drilling could reduce the amount of future surface disturbance. Should the market demand for oil shale increase to an economically favorable price, development of this resource may be focused on the richer Piceance Basin in Colorado rather than on the Uinta Basin in Utah. Because of the low likelihood of development from oil and gas in the foreseeable future, the Service should not list the beardtongues. Another commenter stated that a determination to list a species as a threatened species under the Act requires a determination as to the likelihood rather than the mere prospect that a species will or will not become endangered in the foreseeable future. The likely threshold of Graham's and White River beardtongues to become an endangered species in the foreseeable future was suspect in the August 6, 2013, proposed listing rule (78 FR 47590); was mitigated by the 2014 CA; and is better stated as unlikely with the discoveries of new populations, the species' range expansion, and the success in research resulting from the 2014 CA.

Our Response: We note that the Act defines a threatened species as a species that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range”. The term “foreseeable future” extends only so far into the future as the Service can reasonably determine that both the future threats and the species' responses to those threats are likely. In other words, the foreseeable future is the period of time in which we can make reliable predictions. See the Regulatory Framework section below for further information on how we make determinations on whether to list a species under the Act.

We evaluated the likelihood and location of future energy development (oil shale, tar sands, traditional oil and gas development) within the beardtongues' ranges in our Biological Reports based on the best available information, expert opinion, and peer review (Service 20201a, pp. 45-54; Service 20201b, pp. 15-38, Appendix). Our analysis of projected future energy development evaluates worst-case impacts under the moderate and high energy development scenarios until 2030, which is the date through which reliable predictions can be made based on current information.

(20) Comment: Commenters including the State of Utah stated that the rangewide population estimates for the beardtongues have greatly increased since 2013. The known population of Graham's beardtongue increased by 177 percent, and the known population of White River beardtongue increased by 284 percent.

Our Response: As stated by the commenters, the rangewide population estimates for the beardtongues have greatly increased since 2013, based on new survey information and a genetic evaluation of White River beardtongue. Although we want to emphasize that the increase in population size does not mean the total population is increasing. Rather, additional survey results provide a more complete picture of how many beardtongue plants exist across their ranges (USFWS 2021a, pp. 21, 28). Monitoring indicates the beardtongue populations are stable in size.

(21) Comment: The State of Utah and other commenters expressed support for the 2014 CA as an appropriate regulatory mechanism to promote research, surveys, and stakeholder engagement. Uintah County, Utah, enacted a zoning ordinance for a 15-year period until 2029, to apply surface disturbance caps and implement a 300-ft (91.4-m) avoidance buffer for 2014 CA conservation areas on private lands. The signatories to the 2014 CA have provided considerable staff time and funding to implement the agreement; successfully implemented surveys, research, monitoring, and planning commitments; expanded conservation areas; committed to providing a summary report of accomplishments every 5 years; and extended the 2014 CA protections on State and Federal lands for a total of 20 years until July 25, 2034. Uintah County expressed their commitment to the conservation of the beardtongues and stated the goal of the 2014 CA is to ensure the beardtongues thrive long after the expiration of the agreement.

Our Response: The signatories are implementing the 2014 CA, and their many contributions were summarized by State members of the agreement (Sheppard and Wheeler 2020, entire). New commitments made by signatories were summarized in the 2014 CA's 2018 addendum, which includes the Service's commitment to assess the beardtongues' status by December 31, 2028. We have considered the 2014 CA and its 2018 addendum in this listing determination.

A comprehensive review of the taxonomy and morphology, habitat, life history and resource needs, population distribution and status, and pollinator information for both Graham's beardtongue and White River beardtongue is presented in our Biological Report of current condition (Service 2021a, pp. 13-41) and is briefly summarized here.

Graham's and White River beardtongues are endemic plants found in northeastern Utah and northwestern Colorado. Graham's beardtongue occurs in 27 populations, with a total population of 56,385 individuals, across the Uinta Basin in Duchesne and Uintah Counties in Utah and Rio Blanco County in Colorado (Service 2021a, pp. 21-27). White River beardtongue occurs in 17 populations, with a total population of 29,902 individuals across the Uinta Basin and at an isolated location in the Book Cliffs in Grand and Uintah Counties in Utah and Rio Blanco County in Colorado (Service 2021a, pp. 28-33). For the purposes of our analysis, we grouped the populations for each species into five range units ( i.e., metapopulation areas). The two species overlap with each other in four of their range units in the central and eastern portion of their ranges in Utah and Colorado. The occupied habitat area for Graham's and White River beardtongues is 9,585 ac and 3,462 ac of habitat, respectively. Their pollinator habitat area includes beardtongue occupied habitat and a larger pollinator foraging area, which collectively comprise 91,232 ac and 29,476 ac for Graham's beardtongue and White River beardtongue, respectively.

Graham's and White River beardtongues have highly specific soil requirements and occupy exposed oil shale strata of the Green River geologic formation. The beardtongues are long-lived perennial plant species that flower in the spring and summer months, and both species require pollinators for maximum plant reproduction. Plant survival and successful recruitment require suitable soils with microsites for establishment and growth. The sparse canopy coverage of associated vegetation likely results in low competition from other plants, and the beardtongues appear to be poor competitors with weeds. Reproductive success and maintenance of genetic diversity of these two beardtongues require habitat that supports generalist and specialist pollinators, primarily bees and a specialist wasp. For more detailed information about the biology of both beardtongue species, see our Biological Report of current condition (Service 2021a, pp. 13-41).

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

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

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

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

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

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

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

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

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

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

The Biological Reports document the results of our comprehensive biological review of the best scientific and commercial data regarding the status of the two species, including an assessment of the potential threats to the species. The Biological Reports do not represent a decision by the Service on whether these species should be listed as endangered or threatened species under the Act. However, they do provide the scientific basis that informs our regulatory decisions, which involve the further application of standards within the Act and its implementing regulations and policies. The following discussions provide summaries of the key results and conclusions from the Biological Reports; the full Biological Reports can be found on the Mountain-Prairie Region website at https://www.fws.gov/mountain-prairie/es/GrahamsAndWhiteRiverBeardtongue.php and at https://www.regulations.gov under Docket No. FWS-R6-ES-2019-0029.

To assess Graham's beardtongue and White River beardtongue viability, we used the three conservation biology principles of resiliency, redundancy, and representation (Shaffer and Stein 2000, pp. 306-310; Smith et al. 2018, p. 304) (hereafter referred to as the 3Rs). Briefly, resiliency supports the ability of the species to withstand environmental and demographic stochasticity (for example, wet or dry, warm or cold years), redundancy supports the ability of the species to withstand catastrophic events (for example, droughts, large pollution events), and representation supports the ability of the species to adapt over time to long-term changes in the environment (for example, climate changes). In general, the more resilient and redundant a species is and the more representation it has, the more likely it is to sustain populations over time, even under changing environmental conditions. Using these principles, we identified the species' ecological requirements for survival and reproduction at the individual, population, and species levels, and described the beneficial and risk factors influencing the species' viability.

Our Biological Reports used many of the concepts of the Service's SSA framework (Smith et al. 2018, entire) and followed sequential stages to characterize the viability of the Graham's and White River beardtongues. In our Biological Report of current condition (Service 2021a), we first evaluated the individual species' life-history needs. The next stage involved an assessment of the historical and current condition of the species' demographics and habitat characteristics, including an explanation of how each species arrived at its current condition. In our Biological Report of future condition (Service 2021b), the final stage involved making predictions about the species' responses to positive and negative environmental and anthropogenic influences. Throughout all of these stages, we used the best available information to characterize viability as the ability of a species to sustain populations in the wild over time. We use this information to inform our regulatory decisions.

In preparing the Biological Reports for Graham's and White River beardtongues, we reviewed available reports and peer-reviewed literature, we incorporated survey information, and we sought information from experts regarding the species' primary stressors to further refine our analysis. We identified uncertainties and data gaps in our assessment of the current and future status of both species. In this discussion, we briefly summarize the biological condition of both species and their resources, the influence of those conditions on the species' overall viability, and the risks to that viability. For a full description of our analysis of each species' biological status, current condition, and projected future condition, see our Biological Reports (Service 2021a, 2021b).

At the individual level, both Graham's beardtongue and White River beardtongue need suitable soils (shallow soils with virtually no soil horizon development with a surface usually mixed with fragmented shale), suitable precipitation (6 to 12 inches annually), and suitable temperatures (including a minimum of 45 consecutive days less than 40 degrees Fahrenheit (°F) in the winter months) to support plant growth (Service 2021a, pp. 17, 20). To support plant reproduction, the plants need visitation and pollination by bee and wasp pollinators, and floral resources for pollinators provided by the associated plant community, including the presence of other beardtongue species (Service 2021a, pp. 17, 20). Suitable microsites that provide cover or shelter for seed germination, establishment, and growth are also needed to support both species (Service 2021a, pp. 17, 20).

For Graham's and White River beardtongues to maintain viability, their populations or some portion of their populations must be sufficiently resilient ( i.e., able to sustain populations in the face of environmental variation). At the population level, important habitat needs for the beardtongues include: (1) Suitable soil substrate to maximize recruitment and survival within the population (soil and microsite quality); (2) sufficient floral resources to ensure pollinator visitation and maximize adult reproductive output; (3) suitable climate conditions (temperature, moisture) within species' physiological tolerances to maximize population growth and size; and (4) sufficient seed dispersal and contribution to the seed bank to support population stability or growth. If these habitat factors occur over an area of sufficient size to support a sufficient population size and the demographic needs of the species, we anticipate plant populations will retain sufficient resiliency to withstand natural stochastic events (Service 2021a, pp. 33-34).

Based on their population demographics, we expect that survival of established plants ( i.e., vegetative and adult (reproductive) plants) and high reproductive output are the most important factors contributing to the growth rate and size of populations (Service 2021a, pp. 34-35). Lastly, resiliency of populations is also influenced by the degree of connectivity among populations (Service 2021a, p. 35).

At the species level, Graham's and White River beardtongues each need multiple, sufficiently resilient, connected populations that represent the range of ecological and genetic diversity across their ranges (Service 2021a, p. 35). Populations that are connected allow for immigration and emigration across the landscape and ensure gene flow and recolonization following extirpation of individual sites or populations (Auffret et al. 2017, pp. 1-3). In order to adapt to changing physical and biological conditions, each species needs to maintain its genetic and ecological diversity (representation) and an adequate number and distribution of sufficiently resilient populations across its range (redundancy).

Because the beardtongues rely on pollinators to maximize seed production and genetic diversity of plant populations, we also note that the persistence of the pollinator assemblage for Graham's and White River beardtongues depends on maintaining nesting sites and floral resources to support pollinator needs (Service 2021a, pp. 35-36). Broadly, the needs of Graham's and White River beardtongue pollinators include intact habitat conditions and an abundance of floral resources throughout the growing season. For an in-depth discussion of the beardtongues' pollinator assemblage, pollinator life history, and the needs of pollinators, see our Biological Report on current condition (Service 2021a, pp. 35-41).

As mentioned above in Regulatory Framework, a species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. Potential stressors we evaluated for Graham's and White River beardtongue in our Biological Reports included: Three types of energy exploration and development: Oil shale, tar sands, and traditional oil and gas drilling (Factor A); road construction (Factor A); herbivory (Factor C); invasive weeds (Factor A); small population size (Factor E); and climate change (Factors A and E). We also evaluated how existing regulatory mechanisms (Factor D) or other conservation measures (primarily the 2014 CA and 2018 addendum) may lessen the impacts of these stressors. The best available information does not indicate that overutilization (Factor B) is a threat to either beardtongue species. A brief summary of the potential factors affecting Graham's and White River beardtongues is presented below; for a full description of our evaluation of the effects of these stressors and conservation efforts, refer to the Biological Reports (Service 2021a, pp. 41-63; Service 2021b, pp. 15-48).

Following publication of our August 6, 2013, proposed rules (78 FR 47590 and 47832), we entered into a 2014 CA with the following parties: BLM; Utah DNR; SITLA; Uintah County, Utah; the Utah PLPCO; and Rio Blanco County, Colorado (Penstemon Conservation Team 2014, entire). The 2014 CA was designed to specifically address the threats identified in our August 6, 2013, proposed rule to list the two species (78 FR 47590), and expand the protections afforded to the beardtongues on Federal lands. The 2014 CA also provides the species protections on certain non-Federal lands.

The parties committed to a number of conservation actions, including the establishment of 44,373 ac (17,957 ha) of occupied and suitable habitat as protected conservation areas on Federal and non-Federal lands. Within the designated conservation areas, surface disturbance caps are applied to limit the loss and fragmentation of habitat from development, in conjunction with a 300-ft (91.4-m) avoidance buffer between disturbance and beardtongue plants. Uintah County enacted an ordinance to enforce the surface disturbance caps and avoidance buffer within conservation areas on private lands (Penstemon Conservation Team 2014, pp. 28, 35). Additionally, BLM implements a minimum 300-ft (91.4-m) avoidance buffer wherever beardtongue plants occur on Federal lands, as identified in BLM's resource management plans. The parties also developed monitoring plans that include adaptive management to address the cumulative impacts from livestock grazing, invasive weeds, small population size, and climate change by continuing species monitoring, monitoring climate, reducing impacts from grazing when and where detected, and controlling invasive weeds.

Today, the 2014 CA remains in place, and in 2018, the parties added 2,339 ac (947 ha) as new conservation areas for White River beardtongue habitat on Federal and State (SITLA) lands and removed 115 ac (47 ha) of low priority conservation areas (Penstemon Conservation Team 2018b and 2018c, entire). The parties also signed an addendum (Penstemon Conservation Team 2018d, entire) to extend the term of the 2014 CA by an additional 5 years, until 2034, for the Federal, State (SITLA, DNR), and county parties. The private lands in Utah will be released from the 2014 CA when the original term ends in 2029. For the purposes of our analysis, we considered only the 2014 CA protections that are afforded to the beardtongues until 2034. Additional conservation areas under the 2014 CA were designated as “interim” and only provide shorter-term protections. However, we did not consider plants in these interim areas as protected for the purposes of our analysis. We are uncertain of the likelihood of 2014 CA protections continuing beyond 2034 when the CA expires; however, it may be possible to renew the CA with willing partners. As part of the CA, the Service committed to assess the status of the beardtongues in 2028, prior to the expiration of protections on private lands. For additional discussion and details on the 2014 CA and its accomplishments, see our Biological Reports (Service 2021a, pp. 42-45; Service 2021b, pp. 43-48).

While the 2014 CA is a voluntary agreement, the State of Utah (SITLA and PLPCO), Uintah County (Utah), and Rio Blanco County (Colorado) used their regulatory authority to implement specific protections as outlined in the 2014 CA (Penstemon Conservation Team 2014, and 2018 a, b, c, entire; Service 2021, pp. 39-43). Utah State law protects the beardtongues on State (SITLA) designated conservation areas and enforces the restrictions identified in the 2014 CA (see title 53C of the Utah Code, at chapter 2, part 2, section 202 (53C-2-202), and the Utah Administrative Code, School and Institutional Trust Lands, at title 850, rule 150 (R850-150)). Uintah County enacted a zoning ordinance to enforce the surface disturbance caps and an avoidance buffer within conservation areas on private lands until 2029 (Penstemon Conservation Team 2014, pp. 28, 35; Uintah County 2018, entire; Penstemon Conservation Team 2019, Appendix A). No other regulatory mechanisms provide protections to the beardtongues on private or State lands in Utah and Colorado.

Other regulatory mechanisms provide protections to Graham's beardtongue and White River beardtongue on Federal (BLM) lands. Graham's and White River beardtongues are BLM sensitive plant species in Utah and Colorado, and are afforded protections at least comparable to (if not greater than) species that are candidates for Federal listing (BLM 2008a, p. 43). In Utah, the BLM Vernal Field Office's resource management plan (RMP), as amended, is the regulatory framework for BLM land management where the beardtongues occur (BLM 2008b, entire). In Colorado, the BLM White River Field Office's RMP, as amended, is the regulatory framework for BLM land management where the beardtongues occur (BLM 1997, entire; BLM 2015, entire). The protections in these RMPs include a 300-ft (91.4-m) avoidance buffer, surface disturbance restrictions on steep slopes, areas that are unavailable for leasing and that have no surface occupancy (NSO) stipulations, and ACECs. For additional detail on all of these regulatory mechanisms, see our Biological Report of future condition (Service 2021b, pp. 46-48).

Oil shale exploration ( e.g., research, exploration, and development) activities occur on State and private lands within the range of the beardtongues. Oil shale exploration and development activities have the potential to destroy beardtongue habitat, plants, and populations. Currently, no exploration activities take place on BLM lands and no plans for commercial-scale development of oil shale exist within the range of both species in Utah and Colorado (BLM 2013, entire; Service 2019d, entire; Service 2021a and b, entire). To date, two oil shale exploration projects have resulted in the loss of 276 ac (112 ha) of Graham's beardtongue pollinator habitat and 246 Graham's beardtongue individuals in Population 13 on State lands (Red Leaf Resources 2013, entire; Red Leaf Resources 2014, entire; The Oil Mining Company 2014, entire; Service 2021a, pp. 45-48).

There are 10,334 ac (4,182 ha) and 1,997 ac (808 ha) of Graham's and White River beardtongue pollinator habitat, respectively, under lease or that have a Utah Division of Oil, Gas and Mining mine permit (includes exploration, small and large mine permits) for oil shale (Service 2021a, pp. 45-48). These areas contain 35 percent (19,476 plants) and 13 percent (4,314 plants) of Graham's and White River beardtongue total populations, respectively. Within oil shale lease and permit areas, conservation areas under the 2014 CA afford protections to 561 Graham's beardtongue plants and 1,678 White River plants with caps on new development and use of an avoidance buffer. The majority of beardtongue habitat within oil shale lease areas has not been impacted by oil shale exploration activities. Aside from the loss of Graham's beardtongue habitat reported above, the disturbance within lease and permit areas is the result of existing roads. We do not anticipate oil shale exploration and development activities to occur within designated conservation areas because of the caps on surface disturbance in the 2014 CA.

Based on past and current exploration and commercial development activities, expert opinion, and the best available information, we consider exploration of oil shale from 2020-2030 to be likely on State and private lands with high economic potential within the beardtongues' ranges (Service 2021b, pp. 15-17). However, we consider commercial development of oil shale to be about as likely as not on State and private lands, and unlikely on Federal lands within the beardtongues' ranges (Service 2021b, pp. 15-17).

Tar sands exploration and development activities are occurring on private, State, and BLM lands outside of Graham's and White River beardtongues habitat in the Uinta Basin (Service 2021a, pp. 48-49). Tar sands exploration and development activities have the potential to destroy beardtongue habitat, plants, and populations. To date, tar sand exploration and development activities have not resulted in the loss of beardtongue habitat or plants. One tar sands lease area overlaps the Book Cliffs population of White River beardtongue; however, no White River beardtongue plants or habitat within this lease area have been impacted by tar sand exploration activities. The 2014 CA affords protections to 306 plants and 97 ac (39 ha) within the State lands portion of the lease area and we do not anticipate tar sand exploration and development activities to occur within designated conservation areas because of the caps on surface disturbance. There are no tar sand leases within Graham's beardtongue habitat.

Based on past and current exploration and commercial development activities, expert opinion, and the best available information, we consider exploration of tar sands from 2020-2030 to be likely on State and private lands including the PR Springs South area (Service 2021b, pp. 24-26). However, we consider commercial development of tar sands to be about as likely as not on State and private lands including the PR Springs South area, and unlikely on Federal lands (Service 2021b, pp. 24-28) within the species ranges.

Traditional oil and gas exploration and development activities are occurring on private, State, and BLM lands within Graham's and White River beardtongues habitat (Service 2021a, pp. 49-53). Traditional oil and gas exploration and development activities have the potential to destroy beardtongue habitat, plants, and populations. The best available information indicates that no loss of beardtongue plants from these activities has occurred. However, traditional oil and gas exploration and development activities have resulted in the loss of less than one percent of the total pollinator habitat area for both species (Federal Energy Regulatory Commission 2012, pp. 24, 25; Lewinsohn 2019, entire; Moore 2019, entire). Approximately 56 percent of Graham's beardtongue pollinator habitat and 39 percent of White River beardtongue pollinator habitat on State and BLM lands are leased for traditional oil and gas development. Within traditional oil and gas lease areas, conservation areas under the 2014 CA afford protections to 34 percent and 42 percent of the Graham's beardtongue habitat and plants under lease, and 36 percent and 32 percent of the White River beardtongue habitat and plants under lease. Overall, traditional oil and gas exploration and development have resulted in a low amount of habitat loss for the two beardtongues to date. The majority of beardtongue pollinator habitat within lease areas is relatively intact and undisturbed.

Based on past and current exploration and commercial development activities, expert opinion, and the best available information, we consider exploration of traditional oil from 2020-2030 to be likely on Federal, State, and private lands within Uintah County in a Mancos shale deposit (the Mancos B play), and do not expect exploration of natural gas to occur, as it is already complete (Service 2021b, pp. 32-33). However, we consider commercial development of natural gas to be likely on Federal, State, and private lands, and commercial development of oil to be unlikely within the species' ranges (Service 2021b, pp. 32-34).

Many unpaved county roads cross through Graham's and White River beardtongue habitat, and most of these roads have existed for decades (Service 2021a, pp. 53-54). Road construction and maintenance activities have the potential to destroy beardtongue habitat, plants, and populations. Plants and populations located near development activities are prone to the effects of dust, weed encroachment, habitat fragmentation, and pollinator disturbance. To date, existing roads and road construction have been the cause of the majority of the loss of beardtongue pollinator habitat. Approximately 1 percent and 1.5 percent of the total pollinator habitat for Graham's and White River beardtongue, respectively, have been lost to road construction. Road construction and paving projects occur infrequently, and we are not aware of other road construction or maintenance projects that are proposed to occur in areas where they would impact Graham's beardtongue or White River beardtongue (Baldwin 2019, entire; Federal Highway Administration (FHWA) 2020, entire; UDOT 2020, entire).

Invertebrates, wildlife, and livestock graze individuals of Graham's and White River beardtongues (Sibul and Yates 2006, p. 9; Dodge and Yates 2010, p. 9; 2011, pp. 9, 12; UNHP 2012, entire; 78 FR 47590, August 6, 2013; 79 FR 46042, August 6, 2014; Penstemon Conservation Team 2015b, entire). Herbivory is primarily due to native grazers rather than livestock (Penstemon Conservation Team 2019a, p. 8). Presumably, beardtongues are adapted to herbivory by native grazers, which may explain why monitored populations continue to remain stable despite occasional high levels of herbivory by native grazers. Most of the Graham's and White River beardtongue populations (99 percent) occur within BLM livestock grazing allotments, except for where the two species occur on private lands (Service 2021a, p. 55). As part of the 2014 CA, the conservation team developed a livestock grazing management plan (Penstemon Conservation Team 2015b, entire), and BLM is monitoring and implementing corrective actions (Service 2021a, pp. 55-56). For example, following a heavy sheep grazing incident at Raven Ridge in Colorado, BLM conducted a site visit with the permittee, reviewed maps of avoidance areas for sheep trailing and bedding, and repaired a fence at the Raven Ridge ACEC boundary. These actions appear to be effective, and sheep grazing has not been detected within the ACEC since 2014 (Service 2021a, p. 56).

Overall, herbivory and livestock grazing are not primary drivers of the beardtongues' current and future condition. The best available information does not indicate that future herbivory impacts would result in any negative population-level impact to the beardtongues. There is the potential for herbivory impacts to increase in populations on non-Federal lands that may be impacted by energy development, because herbivory from native grazers and livestock may increase where available forage is reduced as a result of energy development (Service 2021b, pp. 38-39). We expect future herbivory impacts would be addressed by land management actions and would not increase in beardtongues' populations on Federal lands, where the BLM has committed to take corrective actions. However, there is no commitment to take corrective actions within beardtongue populations affected by development on non-Federal lands if future herbivory impacts increase (Service 2021b, pp. 38-39).

Invasive weeds are present but not extensive across most of the beardtongues' pollinator habitat, and the primary weed is cheatgrass. Invasive weeds have the potential to negatively impact seedling recruitment, plant abundance, and population trends of the beardtongues and other native plants through competitive exclusion, niche displacement, and changes in insect predation. Beardtongue populations with high cheatgrass cover ( i.e., introduced annual grasslands greater than 20 percent of habitat area) may be at risk of an altered wildfire regime (Link et al. 2006, p. 116). Based on our review of the existing vegetation types, most beardtongue populations contain low amounts of cheatgrass (less than 5 percent of habitat area), which is consistent with monitoring reports for both species (Service 2021a, pp. 13-20, 57-59; SWCA Environmental Consultants 2014, p. 16). We expect weed levels to remain low in intact beardtongue occupied habitat and increase in disturbed occupied habitat (Service 2021a, pp. 57-59; Service 2021a, pp. 8-11, Appendix B). The effects of invasive weeds may increase in populations that overlap with energy development (Service 2021b, p. 39). As part of the 2014 CA, the conservation team developed a weed management plan. To date, BLM and Uintah County have surveyed for weeds along roads in conservation areas, but no new occurrences of noxious weed species have been detected (Penstemon Conservation Team 2017, p. 1; Penstemon Conservation Team 2018a, p. 1; Sheppard and Wheeler 2020, p. 6).

The best available information does not provide evidence of an altered wildfire regime within the beardtongues' ranges, although decades of fire suppression have increased the risk of high severity, stand-replacing wildfires (BLM 2008b, pp. 3-21). We also considered the exposure and impacts of wildfire to the beardtongues. One recent wildfire (Wolf Den Fire) occurred within the beardtongues' ranges. Overall, the wildfire appeared to have a low or minor negative impact to Graham's beardtongue, while White River beardtongue plants and habitat were not affected (Brunson 2012, entire). To address wildfire, the 2014 CA provides that the Penstemon Conservation Team will coordinate with land managers regarding wildfire and post-wildfire management activities and mitigation for impacts in conservation areas. For our analysis, we assumed that wildfire frequency and extent in beardtongue populations would generally not change from current levels over the next 10 years.

Based on results of a PVA, for Graham's and White River beardtongues, we consider small populations to be those that have greater than 10 percent extinction risk (see Service 2021a, pp. 59-62). This threshold is equivalent to Graham's beardtongue populations with fewer than 67 plants and White River beardtongue populations with fewer than 200 individuals. Graham's beardtongue has a lower threshold than White River beardtongue because its populations were more stable over the monitoring period that informed the PVA. Populations in this size category are more prone to extinction from stochastic events than larger populations based on their life-history characteristics and stable demographic pattern (McCaffery 2013b, p. 1). We considered large populations of Graham's and White River beardtongues to be those with low (less than 5 percent) extinction risk, and medium populations to be those with moderate (6-10 percent) extinction risk. Large populations of Graham's beardtongue have more than 130 plants, and large White River beardtongue populations have more than 370 plants (Service 2021a, pp. 59-62; Service 2021a, p. 7, Appendix A). Graham's beardtongue has 12 small populations and 15 large populations distributed across its range, and the small populations comprise less than one percent of all known individuals. White River beardtongue has 6 small populations and 11 large populations distributed across its range, and the small populations comprise less than one percent of all known individuals. As part of the 2014 CA, the Penstemon Conservation Team developed designated conservation areas to protect large populations of Graham's and White River beardtongues as well as moderate and small populations across both species' ranges to support population connectivity. While not a primary driver of either species' current or future condition, we considered the potential cumulative impacts of small population size with other stressors in our analysis.

Climate change has the potential to impact Graham's and White River beardtongues (78 FR 47590, August 6, 2013; 79 FR 46042, August 6, 2014). We do not have a clear understanding of how Graham's and White River beardtongues have responded to precipitation changes, although plant numbers have been documented as remaining fairly stable during drought years. There is also no association between regional precipitation patterns and population demographics for either species (McCaffrey 2013a, p. 16). As part of the 2014 CA, BLM recently installed weather monitoring equipment adjacent to eight monitoring sites to collect local climate data in Range Units 1-5 (McCulley and Hornbeck 2017, p. 2; Penstemon Conservation Team 2019a, p. 8; Sheppard and Wheeler 2020, pp. 17-22). The data collected from weather monitoring can be correlated with demography data to determine basic species responses to climate patterns.

Because we are not aware of a downscaled climate model for the range of Graham's and White River beardtongues, we used climate change data from the Multivariate Adaptive Constructed Analogs (MACA) website. We used two different emission scenarios, a stabilization emission scenario using Representative Concentration Pathway (RCP) 4.5 and a rising greenhouse gas emissions scenario using RPC 8.5 developed by the Intergovernmental Panel on Climate Change. The results of our “downscaled” climate evaluation indicate future climate conditions will be warmer in all seasons under both emission scenarios (Lindstrom 2019, entire). The difference in temperature increase between the two scenarios is within 3.2 °F through 2070. Precipitation for all seasons is expected to increase under both scenarios. In order to evaluate a more integrated measure of the combined effect of increased temperature and precipitation levels, we considered a measure of evaporative deficit instead of precipitation alone for our predictions of drought conditions (Lindstrom 2019, entire), using the U.S. Geological Survey (USGS) National Climate Change Viewer. Both scenarios indicate the range of Graham's and White River beardtongues may be drier in the future (through 2070) compared to historical conditions (Service 2021b, pp. 40-41).

Overall, climate change presents substantial uncertainty regarding the future environmental conditions in the range of Graham's and White River beardtongues, but it may place an added stress on the species and its habitat, particularly where other stressors are present. When we considered characteristics that contribute to vulnerability to climate change such as dispersal ability, highly specific habitat requirements, and ability to shift distribution in response to environmental conditions, Graham's and White River beardtongues would likely rank moderate or high on the vulnerability index at the species level (Young et al. 2012, pp. 133-139). Despite characteristics that make the two species vulnerable to climate change, our climate evaluation is too speculative to determine the severity of this stressor to Graham's and White River beardtongues at the population level. Long-lived perennial plants exhibit a range of drought and temperature sensitivities based on physiological, morphological, and inherent genetic variability (Warwell and Shaw 2017, p. 1205), which all contribute to a species' tolerance (Hoover et al. 2015, pp. 7-11). Additional information regarding each species' drought and temperature tolerance is needed for us to be able to assess the species' responses to future climate changes. For our analysis, we assumed that climate conditions would generally not change over the next 10 years from current levels in beardtongue populations, but may contribute to stronger effects of herbivory and invasive weeds to all beardtongue populations. Over a longer timeframe (through 2070), we expect temperatures and drought conditions to increase, but there is substantial uncertainty regarding their impact to the beardtongues.

We considered the potential impacts from off-highway vehicle use, disease, and collection. The best available information indicates that these are low-level stressors and do not impact the beardtongues either by themselves, or cumulatively with any other stressors (Service 2021a, p. 63).

Overall, we consider the primary drivers of the status of Graham's beardtongue and White River beardtongue to be energy development and the protections provided by the 2014 CA and other regulatory mechanisms on Federal and State lands. Energy development activities, including oil shale, tar sands, and traditional oil and gas, have collectively had minimal impacts to both species to date but have the greatest potential of the stressors we evaluated for future impacts. Other stressors are not expected to have population- or species-level impacts by themselves but may have the potential for cumulative impacts on the species when considered together with energy development and other stressors. The protections provided by the 2014 CA and other regulatory mechanisms are expected to reduce the negative effect of energy development on the beardtongues' population resiliency.

In our Biological Report of current condition (Service 2021a, entire), we describe Graham's and White River beardtongues' viability by characterizing their current condition in terms of the 3Rs. We evaluate resiliency at the population level, and redundancy and representation at the species level. This analysis is described in detail in the Biological Report (Service 2021a, entire), and is briefly summarized here.

We evaluated the current resiliency of each beardtongue population by scoring relevant demographic (population size) and habitat factors for the species for which information is available (Service 2021a, pp. 66-70). For population size, we incorporated two factors, population extinction risk (based on a PVA) and the presence of high-density clusters of plants within populations, into our calculation. For habitat, we incorporated three factors, pollinator habitat quality (measured as percent nonnative plant cover), pollinator habitat area, and pollinator habitat loss, into our calculation. We included pollinator habitat area because this factor is associated with plant abundance and biodiversity (Krauss et al. 2004, entire) and may change in a predictable way to estimate future population size. Each population's overall resiliency score is the average of all individual factor scores, which translates to an overall current condition category of low, moderate, or good.

Fourteen Graham's beardtongue populations are in good current condition ( i.e., the most resilient) due to their large population size and habitat quality ranks (Service 2021a, pp. 68-69). These factors likely provide Graham's beardtongue the ability to withstand stochastic events such as drought or wildfire. The remaining 13 populations are in moderate condition based on the habitat and demographic factors contributing to resiliency (Service 2021a, pp. 68-69). The moderate condition of these populations may result in a lower ability to withstand stochastic events than the populations in good condition. The low levels of habitat loss to date have not changed the overall current condition of any population. Only one population (population 11) had a reduction in the overall condition because of higher weed presence; the remaining populations retain the same condition as they did historically (Service 2021a, pp. 68-69).

Unlike many other narrow endemic species, the redundancy of Graham's beardtongue is quite high despite its limited geographical range. The species' 27 populations are spread across the Uinta Basin on different topographic features, which likely provides the ability to withstand more localized catastrophic events ( e.g., wildfire), and may provide a limited ability to withstand rangewide catastrophic events ( e.g., drought) (Service 2021a, pp. 70-72). Maintaining redundancy to reduce the risk from catastrophic events is dependent upon maintaining sufficiently resilient populations of Graham's beardtongue in topographically diverse habitat conditions.

We do not have meaningful information on the genetic diversity of Graham's beardtongue. Therefore, we considered other types of representative diversity, such as population size and ecological settings, that could indicate some ability to adapt to change within the species' range (Service 2021a, pp. 72-77). Graham's beardtongue has 15 large populations distributed across its range with at least 1 large population within each of the five range units. There are three medium populations within the two western-most range units; the remaining nine populations are small. We assume the 15 large populations contain the majority of genetic variation within the total population because they contain 99.5 percent of all individuals (Service 2021a, p. 73). Graham's beardtongue populations and metapopulations occur in a high diversity of ecological settings, suggesting a high level of genetic variation within each range unit (Service 2021a, p. 76). In addition, the species exhibits a gradient of morphological and phenological differences across its range. Preserving the species' representation requires maintaining medium and large populations, connectivity between populations, and a diversity of ecological settings across its range. The current distribution is the same as the historical distribution, and the best available information does not indicate that a reduction in genetic diversity or connectivity among populations has occurred.

Overall, Graham's beardtongue exhibits high levels of resiliency, redundancy, and representation that have allowed populations to persist throughout the species' range. The species contains a high number of populations in good or moderate condition, and levels of redundancy and representation are similar to its historical condition. Graham's beardtongue is stable despite localized weed encroachment and some loss of occupied habitat and pollinator habitat. The current condition of Graham's beardtongue populations is a direct result of the low levels of habitat loss and degradation to date and habitat protections afforded to the species under the 2014 CA. For further explanation of our analysis of the current condition of Graham's beardtongue, see our Biological Report (Service 2021a, pp. 63-80).

Seven White River beardtongue populations are in good current condition ( i.e., the most resilient) due to their large population size and habitat factors (Service 2021a, pp. 68-70). These factors likely provide White River beardtongue the ability to withstand stochastic events such as drought or wildfire. There are nine populations in moderate condition based on the habitat factors (habitat area and quality) contributing to resiliency (Service 2021a, pp. 68-70). The moderate condition of these populations may result in a lower ability to withstand stochastic events compared to populations in good condition. One population (Population 8) is in low condition and is the least likely to withstand stochastic events (Service 2021a, pp. 68-70).

The low overall level of pollinator habitat loss for all populations to date does not change the overall current condition of any population because habitat loss does not exceed the low habitat loss condition threshold of five percent habitat loss, and effects to populations remain small and localized. Two populations (Populations 8 and 13) had a reduction in their overall condition because of higher weed presence; the remaining 15 populations retain the same condition as they did historically (Service 2021a, pp. 68-70).

Unlike many other narrow endemic species, the redundancy of White River beardtongue is fairly high despite its limited geographical range (Service 2021a, pp. 70-72). The species includes 17 populations spread across the Uinta Basin on different topographic features, which likely provides the ability to withstand more localized catastrophic events ( e.g., wildfire) and may provide a limited ability to withstand rangewide catastrophic events ( e.g., drought). Maintaining redundancy to reduce the risk of catastrophic events is dependent upon maintaining sufficiently resilient populations of White River beardtongue in topographically diverse habitat conditions.

We considered population size and ecological settings that could indicate some ability to adapt to change within the species' range (Service 2021a, pp. 72-77). White River beardtongue has 11 large populations distributed across its range with at least 1 large population within each of the five range units. The remaining six populations are small. We assume these 11 large populations contain the majority of genetic variation within the total population, because they contain 99.7 percent of all individuals (Service 2021a, p. 76). There is a high diversity of ecological settings within White River beardtongue metapopulations, suggesting a high level of genetic variation within each range unit. One White River beardtongue range unit has a distinctly different composition of vegetation types than the other range units, which we consider a different ecological setting for the species (Service 2021a, p. 76). We assume this is an indication that this range unit has a slightly different genetic composition than the other range units. The preliminary genetic information and opinions from our expert panel support this assumption (Stevens 2019, attachments a, b, c; Service 2017a, p. 4). Preserving the species' representation requires maintaining large populations, connectivity between populations, and a diversity of ecological settings across its range. The current distribution is the same as the historical distribution, and the best available information does not indicate that a reduction in genetic diversity or connectivity among populations has occurred.

Overall, White River beardtongue exhibits high levels of resiliency, redundancy, and representation, which have allowed populations to persist throughout the species' range. The species contains a high number of populations in good or moderate condition, and levels of redundancy and representation are similar to its historical condition. White River beardtongue is stable despite localized weed encroachment and some loss of pollinator habitat. The current condition of White River beardtongue populations is a direct result of the low levels of habitat loss and degradation to date and habitat protections afforded to the species under the 2014 CA. For further explanation of our analysis of the current condition of White River beardtongue, see our Biological Report (Service 2021a, pp. 63-80).

Using the 3Rs, we evaluated the future viability of the beardtongues based on the presence of multiple (redundancy), self-sustaining (resiliency) populations distributed across the range of the species, and their contributions to adaptive capacity (representation) in the face of changing environmental conditions. We relied on our characterization of each species' current condition, stressors, and effects of stressors as the baseline from which to evaluate future changes to those factors considered important to the beardtongues (Service 2021a, entire). Our analysis of the projected future condition of Graham's and White River beardtongues is described in detail in our Biological Report of future condition (Service 2021b, entire), and is briefly summarized here.

Based on input received from Federal and State agencies, private industry, and the best available information, we developed two plausible future scenarios—moderate and high energy development (Service 2021b, pp. 48-56). We used reliable projections of future events and the future locations of stressors based on the best available information and expert opinion. Published literature evaluates energy development at a coarser scale ( e.g., the Uintah Basin, State of Utah, or county-level) than what we needed for our analysis within the beardtongues' ranges. Therefore, we relied on expert opinion to evaluate energy development specifically within the ranges of the two species and assign likelihoods to future exploration and development activities (Service 2021b, pp. 12, 13).

Based on this information, our two scenarios considered impacts to the beardtongues through 2030, because we have sufficient information to project out to 10 years for energy development (oil shale, tar sands, and oil and gas development), which is the primary future stressor for the beardtongues (Service 2021b, p. 49). Beyond 10 years, there is too much uncertainty about the fluctuating market price of oil and gas, the possibility of future technological advances that could lower extraction costs and favor certain industries, and the results of planned oil exploration to project the level or distribution of energy development within the beardtongues' populations and ranges, such that projections would become speculative (Service 2019, entire; Service 2020, entire). Expert panel likelihood estimates and the best available information from published literature and technical reports informed our 10-year energy development (oil shale, tar sands, and oil and gas development) projection timeframe. Our 10-year energy development timeframe is generally consistent with long-term economic forecasts for oil shale, tar sands, and traditional oil and gas that are based on the market price of oil and natural gas (Service 2021b, pp. 17, 25, 33, 34). In addition, future oil exploration and development within the beardtongues' ranges will depend of the results of planned exploration within Uintah County (Service 2021b, pp. 32—35). We note that we do have certainty through 2034 that the protections of the 2014 CA will remain in place, which will limit where energy development could occur. For more information on how these projection timeframes relate to our evaluation of the “foreseeable future”, see Consideration of Foreseeable Future below.

In the locations where energy stressors occurred for the two scenarios, our analysis included the following assumptions: Commercial development activities for oil shale and tar sands will occur in the next 10 years on non-Federal (private and state) lands within each forecast; and a total loss of plants and habitat will occur where oil shale and tar sands development are projected (Service 2021b, pp. 15-31; 49-56). These assumptions allowed us to evaluate potential worst-case impacts from energy development in combination with other stressors, to bracket the full range of impacts to the beardtongues that may occur, because actual future impacts may range anywhere from their current condition to the future scenarios evaluated here, or may fall in between. We did not develop a scenario that considered “exploration-only” activities for oil shale and tar sands, with a smaller surface disturbance extent, even though this would also be a plausible future forecast for oil shale and tar sands, because the impacts under an exploration-only scenario would fall in between the current condition and the energy development scenarios we developed. Our evaluation of effects from energy development accounted for the protections afforded to the beardtongues from the 2014 CA that are in place through 2034.

For the two future scenarios, we forecasted the species' biological condition based on conservation efforts and the following stressors: Oil shale, tar sands, and traditional oil and gas exploration and development activities; road construction and maintenance; herbivory; invasive weeds; small population size; and climate change. Our future scenarios varied based on two forecasts for oil shale (moderate, high). For each of the other stressors (tar sands, traditional oil and gas, road construction and maintenance, herbivory, invasive weeds, small population size, and climate change) we developed only one future forecast (these forecasts were used in both future scenarios) because their future, plausible extents are not expected to vary much within the beardtongues' ranges independent of the oil shale stressor (Service 2021b, pp. 49-56).

In the moderate energy development scenario (Scenario 1), we projected that oil shale exploration and commercial development would occur on lands identified as having a high potential for both activities (Service 2021b, pp. 49-52). The effects of herbivory and invasive weeds may increase in populations that overlap with energy development. Climate change may increase the effects from herbivory and invasive weeds to all beardtongue populations. In the high energy development scenario (Scenario 2), we projected that oil shale exploration and commercial development would occur over a larger area that included the same lands as the moderate scenario, plus other lands identified as likely or about as likely as not to support these activities (Service 2021b, pp. 52-55). The potential effects of the other stressors to all beardtongue populations remained the same as evaluated for the moderate energy development scenario.

Under each of these future scenarios, we assessed future resiliency by evaluating relevant habitat and demographic factors to calculate an overall condition score for each plant population. We evaluated population size, habitat area, habitat quality, and habitat loss to project the future resiliency of each population. Based on the results of these evaluations, we rated population condition as good, moderate, low, or extirpated. To assess future redundancy, we evaluated the projected number and distribution of populations within the species' range relative to the current condition. To assess future representation, we evaluated the projected demographic (population size) and ecological (ecological settings) surrogates of genetic diversity relative to the current condition. For more detailed information on our methodology for evaluating future conditions, see the Biological Report (Service 2021b, pp. 49-56).

Under the moderate energy development scenario, oil shale and traditional oil and gas are the main stressors for Graham's beardtongue, and these stressors are projected to result in loss of individual plants and habitat in the center of the species' range (Service 2021b, Figure 11, pp. 50, 56). In this scenario, there is a projected loss of 34 percent of the total number of plants from energy development, with a remaining total population size of 37,350 individuals in 24 populations (Service 2021b, p. 57). Remaining occupied habitat and pollinator habitat are projected to be 7,642 ac (3,093 ha) and 72,455 ac (29,321 ha), respectively. The main stressors result in the extirpation of three populations and a decline in the condition of four populations compared to their current condition. The current population condition is maintained in the other 20 populations. The species continues to occupy the extent of its current range, and all five range units continue to support populations in good or moderate condition. Fourteen populations in good and moderate condition are large in size and have a low extinction risk (Service 2021b, pp. 57-58).

Despite the extirpation of some populations under the moderate energy development scenario, levels of redundancy remain high, with Graham's beardtongue maintaining 24 populations (Service 2021b, p. 60). Our evaluation of representation under this scenario indicates that Graham's beardtongue maintains a level of ecological diversity within the 24 remaining populations that is similar to its current condition and should have the adaptive capacity to tolerate projected, future climate and habitat conditions (Service 2021b, p. 60). The best available information does not indicate that the projected loss of the three Graham's beardtongue populations and projected plant loss in other populations would result in significant impacts to Graham's beardtongue's representation.

Under the high energy development scenario, the main stressors remain the same for Graham's beardtongue, but oil shale impacts result in more extensive plant and habitat loss in the center of the species' range than in the moderate energy development scenario (Service 2021b, Figure 13, pp. 53, 60-62). In this scenario, there is a projected loss of 45 percent of the total number of plants from energy development, with a remaining total population size of 30,794 individuals in 24 populations. Remaining occupied habitat and pollinator habitat are projected to be 6,037 ac (2,443 ha) and 63,580 ac (25,730 ha), respectively. The main stressors result in the extirpation of three populations and a decline in the condition of six populations compared to their current condition. The current population condition is maintained in the other 18 populations. Fourteen populations in good and moderate condition are large in size and have a low extinction risk. The species continues to occupy the extent of its current range, and all five range units continue to support populations in good or moderate condition (Service 2021b, pp. 60-62).

Despite the extirpation of populations, levels of redundancy remain high with Graham's beardtongue maintaining 24 populations (Service 2021b, p. 64). Our evaluation of representation indicates that Graham's beardtongue maintains a level of ecological diversity within the 24 remaining populations that is similar to its current condition and should have the adaptive capacity to tolerate future climate and habitat conditions (Service 2021b, p. 64). The best available information does not indicate that the projected loss of the three Graham's beardtongue populations and projected plant loss in other populations would result in significant impacts to Graham's beardtongues' representation.

Under the moderate energy development scenario, oil shale is the main stressor for White River beardtongue, and this stressor is projected to result in loss of individual plants and habitat in the center of the species' range (Service 2021b, Figure 12, pp. 51, 57-59). In this scenario, there is a projected loss of 1 percent of the total number of plants from energy development, with a remaining total population size of 29,686 individuals in 16 remaining populations. Remaining occupied habitat and pollinator habitat are projected to be 3,218 ac (1,302 ha) and 26,959 ac (10,910 ha), respectively (Service 2021b, pp. 57-59). The main stressor results in the extirpation of one population and a decline in the condition of one population compared to their current condition. The current population condition is maintained in the other 15 populations. The species continues to occupy the extent of its current range, and all five range units continue to support populations in good or moderate condition. Eleven populations in good and moderate condition are large in size and have a low extinction risk (Service 2021b, pp. 57-59).

Despite the extirpation of one population under the moderate energy development scenario, levels of redundancy remain high with White River beardtongue maintaining 16 populations (Service 2021b, p. 60). Our evaluation of representation indicates that White River beardtongue maintains a level of ecological diversity within the 16 remaining populations that is similar to its current condition and should have the adaptive capacity to tolerate future climate and habitat conditions (Service 2021b, p. 60). The best available information does not indicate that the projected loss of the one White River beardtongue population and projected plant loss in other populations would result in significant impacts to White River beardtongue's representation.

Under the high energy development scenario, the main stressor remains the same for White River beardtongue, but oil shale impacts result in more extensive plant and habitat loss in the center of the species' range than in the moderate energy development scenario (Service 2021b, Figure 14, pp. 54, 61-63). In this scenario, there is a projected loss of 24 percent of the total population from energy development, with a remaining total population size of 22,695 individuals in 15 populations. Remaining occupied habitat and pollinator habitat are projected to be 2,317 ac (938 ha) and 20,099 ac (8,134 ha), respectively (Service 2021b, pp. 61-63). The main stressor results in the extirpation of two populations and a decline in the condition of two populations compared to their current condition. The current population condition is maintained in the other 13 populations. Nine populations in good and moderate condition are large in size and have a low extinction risk. The species continues to occupy the extent of its current range, and all five range units continue to support populations in good or moderate condition (Service 2021b, pp. 61-63).

Despite the extirpation of populations, levels of redundancy remain high with White River beardtongue maintaining 15 populations (Service 2021b, p. 64). Our evaluation of representation indicates that White River beardtongue maintains a level of ecological diversity within the 15 remaining populations that is similar to its current condition and should have the adaptive capacity to tolerate future climate and habitat conditions (Service 2021b, p. 64). The best available information does not indicate that the projected loss of the two White River beardtongue populations and projected plant loss in other populations would result in significant impacts to White River beardtongue's representation.

The 2014 CA provides protections for the beardtongues on Federal and State lands until 2034. During this time, the beardtongues are afforded the same level of protections on Federal and State lands within designated conservation areas. The 2014 CA identifies 42,993 ac (17,399 ha) of designated conservation areas that protect 41 percent of the Graham's beardtongue population in 13 populations, and 66 percent of the White River beardtongue population in 11 populations (Service 2021b, pp. 43-46). Within designated conservation areas, protections include an avoidance buffer of 300 ft (91.4 m) between disturbance and beardtongue plants, as well as surface disturbance caps to restrict development. Surface disturbance caps would allow a limited amount of new construction for roads and traditional oil and gas development but would prohibit future oil shale and tar sand exploration and development (Service 2021b, pp. 43-46).

The beardtongues are also afforded protections on Federal lands outside of designated conservation areas, including a 300-ft (91.4-m) avoidance buffer, surface disturbance restrictions on steep slopes, areas that are unavailable for leasing or have NSO stipulations, and designated ACECs (Service 2021b, pp. 47-48). In total, the 2014 CA designated conservation areas and other conservation measures on Federal lands provide protections to 51 percent and 76 percent of the Graham's beardtongue and White River beardtongue total population, respectively (Service 2021b, p. 48).

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

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

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

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

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

Since the publication of the August 6, 2013, proposed listing rule (78 FR 47590), and the subsequent reinstatement of that proposed rule following litigation, we prepared a comprehensive assessment of the current and future status of Graham's beardtongue and White River beardtongue as presented in the Biological Reports (Service 2021a, entire; 2021b, entire). The Biological Reports reexamined the threats identified in the 2013 proposed listing rule (energy exploration and development, as well as the cumulative impacts of livestock grazing, invasive weeds, small populations sizes, and climate change) using concepts from the Service's SSA framework (Service 2016, entire; Smith et al. 2018, entire). The Biological Reports also incorporate new information into our analysis that has become available since 2013, including updated monitoring information and the final 2014 CA and its 2018 addendum.

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to Graham's and White River beardtongues, including: Energy exploration and development: Oil shale, tar sands, and traditional oil and gas drilling (Factor A); road construction (Factor A); herbivory (Factor C); invasive weeds (Factor A); small population size (Factor E); and climate change (Factors A and E). We also evaluated how existing regulatory mechanisms (Factor D) and other conservation measures (primarily the 2014 CA and 2018 addendum) may lessen the impacts of these stressors. The best available information does not indicate that overutilization (Factor B) is a threat to either beardtongue species.

Threats can work in concert with one another to cumulatively create conditions that may impact the Graham's and White River beardtongues or their habitat beyond the scope of each individual threat. We note that by using concepts from the SSA framework to guide our analysis of the scientific information documented in the Biological Reports, we have not only analyzed individual effects on the species, but we have also analyzed their potential cumulative effects. We incorporate the cumulative effects into our analysis when we characterize the current and future condition of the species. To assess the current and future condition of the species, we undertake an iterative analysis that encompasses and incorporates the threats individually and then accumulates and evaluates the effects of all the factors that may be influencing the species, including threats and conservation efforts. Because our analysis considers not just the presence of the factors, but to what degree they collectively influence risk to the entire species, our assessment integrates the cumulative effects of the factors and replaces a standalone cumulative effects analysis.

In considering the foreseeable future for Graham's beardtongue and White River beardtongue, we considered the available data regarding the factors that may influence both species into the future, including stressors, and conservation efforts or regulatory mechanisms that may provide protections. The primary driver of both species' condition into the future is energy development. We are able to make reliable predictions about the range of plausible future impacts of oil shale, tar sands, and traditional oil and gas through approximately 2030. Beyond 2030, based on input from experts, the impacts of energy development become too speculative to predict. Other stressors, including roads, livestock grazing, invasive weeds, and small population size, exert a cumulative effect on the beardtongues where they occur with energy development, and, therefore, we are similarly able to reliably predict their impacts on the species through approximately 2030. Climate change has the potential to exacerbate the effect of other stressors, including livestock grazing and invasive weeds, where they are present on the landscape. We have information on climate change, including projected changes in temperature, precipitation, and evaporative deficit out to 2070. However, we are not able to make reliable predictions about the species' responses to these changes out to 2070, since the species' expected responses to these variables are uncertain, and will depend on the presence and impacts of other stressors.

We also have information on various timescales to make reliable predictions about future protections that may be in place for both Graham's and White River beardtongues. The 2014 CA provides protections through designated conservation areas on Federal and State lands through 2034. Regulatory mechanisms are in place to provide for the State conservation areas (Utah Code 53C-2-202 and Utah Administrative Code R850-150) through 2034. Federal regulatory mechanisms, including a BLM sensitive species designation, and BLM RMP designations and stipulations, provide protections for the species through at least 2038. The 2014 CA conservation areas on private lands are expected to expire sooner, in 2029. A Uintah County Ordinance that provides for those areas also expires in 2029. Therefore, we did not include these private land conservation areas in our analysis of future conditions.

Overall, the primary drivers of the future status of Graham's beardtongue and White River beardtongue are energy development and the protections provided by the 2014 CA and other regulatory mechanisms on Federal and State lands. We have information to make reliable predictions about these factors, and the species' responses to them, through: 2030 for the threat of energy development, 2034 for the protections of the 2014 CA on Federal and State conservation areas, and 2038 for regulatory mechanisms on BLM lands. Therefore, the foreseeable future for this determination ranges from approximately 2030 to 2034, for the stressors and 2014 CA protections included in our future scenarios, to approximately 2038 for BLM regulatory mechanisms.

Our evaluation of the current condition of Graham's beardtongue found that there are currently tens of thousands of individual plants distributed across many populations that have good or moderate resilience to stochastic events. The species currently has a sufficient level of redundancy and representation to withstand catastrophic events and adapt to changes, with populations distributed across five range units. While some stressors have impacted individuals in localized areas, none are currently having population-level impacts individually or cumulatively. Therefore, we find that the species is not in danger of extinction throughout all of its range.

Our evaluation of the projected future condition of Graham's beardtongue found that there is very high uncertainty about the future likelihood of oil shale development. The future condition of Graham's beardtongue in 2030 may range anywhere from its current condition to the impacts projected in the high energy development scenario. However, the impacts projected under the high energy development scenario represent a worst-case scenario, which we expect is less likely to occur than the impacts projected under the moderate energy development scenario, or a continuation of current conditions. Although unlikely, even if we assume the high energy development scenario were to occur, the impacts of the stressors on Graham's beardtongue would be limited to three range units. Those three impacted range units would still have several populations in good or moderate condition, and over 30,000 individual plants would remain. In this scenario, Graham's beardtongue would also retain over 6,000 ac (2,428 ha) of occupied habitat and 63,000 ac (25,495 ha) of pollinator habitat. The 2014 CA would cap the total level of habitat that could be impacted within the foreseeable future. Therefore, even in this worst-case scenario, we anticipate that Graham's beardtongue would retain sufficient levels of resiliency, redundancy, and representation in the foreseeable future. Thus, after assessing the best available information, we conclude that the Graham's beardtongue is not in danger of extinction throughout all of its range nor is it likely to become so in the foreseeable future.

Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range. Having determined that the Graham's beardtongue is not in danger of extinction or likely to become so in the foreseeable future throughout all of its range, we now consider whether it may be in danger of extinction or likely to become so in the foreseeable future in a significant portion of its range—that is, whether there is any portion of the species' range for which it is true that both (1) the portion is significant; and (2) the species is in danger of extinction now or likely to become so in the foreseeable future in that portion. Depending on the case, it might be more efficient for us to address the “significance” question or the “status” question first. We can choose to address either question first. Regardless of which question we address first, if we reach a negative answer with respect to the first question that we address, we do not need to evaluate the other question for that portion of the species' range.

In undertaking this analysis for the Graham's beardtongue, we choose to address the status question first—we consider information pertaining to the geographic distribution of both the species and the threats that the species faces to identify any portions of the range where the species is endangered or threatened. For the Graham's beardtongue, we considered whether the threats are geographically concentrated in any portion of the species' range at a biologically meaningful scale. We examined the following threats: Energy development (oil shale, tar sands, and traditional oil and gas drilling) and the additional cumulative impacts of road construction, herbivory, invasive weeds, small population size, and climate change with energy development (Service 2021a, entire; 2021b, entire). We acknowledge that there are three range units (Units 2, 3, and 4) with potentially greater levels of impacts projected from oil shale in the foreseeable future, although the worst-case impacts of the high energy development scenario are less likely to occur than the impacts under the moderate energy development scenario or a continuation of current conditions. However, even if these worst-case projected impacts were to occur in Range Units 2, 3, and 4, several populations would remain in good or moderate condition in Range Units 2 and 3, and the one population in Range Unit 4 would remain in good condition. Based on the resiliency of these remaining populations, and their spread across these range units, we expect that adequate levels of resiliency, redundancy, and representation would remain in these units to protect again stochastic and catastrophic events and to adapt to future changes, and so, this portion of the range would not meet the definition of endangered or threatened. Therefore, no portion of the species' range can provide a basis for determining that the species is in danger of extinction now or likely to become so in the foreseeable future in a significant portion of its range, and we find the species is not in danger of extinction now or likely to become so in the foreseeable future in any significant portion of its range. This is consistent with the courts' holdings in Desert Survivors v. Department of the Interior, No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018) and Center for Biological Diversity v. Jewell, 248 F. Supp. 3d, 946, 959 (D. Ariz. 2017).

Our evaluation of the current condition of White River beardtongue found that there are currently nearly 30,000 individual plants distributed across many populations that have good or moderate resilience to stochastic events. The species currently has a sufficient level of redundancy and representation to withstand catastrophic events and adapt to changes, with populations distributed across five range units. In addition, the recent discovery of a new population in the Book Cliffs has expanded the species' known range. While some stressors have impacted individuals and habitat in localized areas, none are currently having population-level impacts. Therefore, we find that the species is not in danger of extinction throughout all of its range.

Our evaluation of the projected future condition of White River beardtongue found that there is very high uncertainty around the future of oil shale development. The future condition of White River beardtongue in 2030 may range anywhere from its current condition, to the impacts projected in the high energy development scenario. However, the impacts projected under the high energy development scenario represent a worst-case scenario, which we expect is less likely to occur than the impacts projected under the moderate energy development scenario, or a continuation of current conditions. Although unlikely, even if we assume the high energy development scenario were to occur, the impacts of the stressors on White River beardtongue are projected to be limited. Under this worst-case scenario, we expect that White River beardtongue would retain over 75 percent of individual plants and maintain the resiliency of the large populations. The 2014 CA is expected to protect the majority (66 percent) of plants across 11 populations into the foreseeable future. We also expect sufficient levels of redundancy and representation to remain across the range units, even though 2 out of 17 populations could be lost. Therefore, even in this worst-case scenario, we anticipate that White River beardtongue would retain sufficient levels of resiliency, redundancy, and representation in the foreseeable future. Thus, after assessing the best available information, we conclude that White River beardtongue is not in danger of extinction throughout all of its range nor is it likely to become so in the foreseeable future.

Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range. Having determined that the White River beardtongue is not in danger of extinction or likely to become so in the foreseeable future throughout all of its range, we now consider whether it may be in danger of extinction or likely to become so in the foreseeable future in a significant portion of its range—that is, whether there is any portion of the species' range for which it is true that both (1) the portion is significant; and (2) the species is in danger of extinction now or likely to become so in the foreseeable future in that portion. Depending on the case, it might be more efficient for us to address the “significance” question or the “status” question first. We can choose to address either question first. Regardless of which question we address first, if we reach a negative answer with respect to the first question that we address, we do not need to evaluate the other question for that portion of the species' range.

In undertaking this analysis for the White River beardtongue, we choose to address the status question first—we consider information pertaining to the geographic distribution of both the species and the threats that the species faces to identify any portions of the range where the species is endangered or threatened. For the White River beardtongue, we considered whether the stressors are geographically concentrated in any portion of the species' range at a biologically meaningful scale. We examined the following stressors: Energy development (oil shale, tar sands, and traditional oil and gas drilling) and the additional cumulative impacts of road construction, herbivory, invasive weeds, small population size, and climate change with energy development (Service 2021a, entire; 2021b, entire). All of these potential stressors are relatively evenly distributed geographically throughout the range of the White River beardtongue. Our analysis projected that small areas of disturbance will occur within most range units but are expected to be spread throughout the range. We found no concentration of stressors in any portion of the White River beardtongue's range at a biologically meaningful scale. Therefore, no portion of the species' range can provide a basis for determining that the species is in danger of extinction now or likely to become so in the foreseeable future in a significant portion of its range, and we find the species is not in danger of extinction now or likely to become so in the foreseeable future in any significant portion of its range. This is consistent with the courts' holdings in Desert Survivors v. Department of the Interior, No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), and Center for Biological Diversity v. Jewell, 248 F. Supp. 3d 946, 959 (D. Ariz. 2017).

We have reviewed the best available scientific and commercial information regarding the past, present, and future threats to the Graham's beardtongue and White River beardtongue, and we have determined that these species do not meet the definition of an “endangered species” or a “threatened species” in accordance with sections 3(6) and 3(20) of the Act. Because of this determination, we are withdrawing our August 6, 2013, proposed rule to list the Graham's beardtongue and White River beardtongue as threatened species (78 FR 47590). Accordingly, we are also withdrawing our August 6, 2013, proposed rule to designate critical habitat for the species (78 FR 47832).

A complete list of references cited in this document and the Graham's and White River beardtongues Biological Reports are available on the internet at https://www.regulations.gov at Docket No. FWS-R6-ES-2019-0029 and upon request from the Utah Ecological Services Office (see FOR FURTHER INFORMATION CONTACT ).

The primary authors of this document are the staff members of the Utah Ecological Services Office and the Mountain-Prairie Regional Office.

The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq. ).