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-2022-1405; Project Identifier AD-2022-01070-E” 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 the 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 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 Kevin Clark, Aviation Safety Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA issued AD 2021-10-09, Amendment 39-21542 (86 FR 27264, May 20, 2021) (AD 2021-10-09), for all CFM CFM56-5B and CFM56-7B model turbofan engines with an HPT inner stationary seal, part number (P/N) 1808M56G01, installed. AD 2021-10-09 was prompted by cracks found in the rotating air HPT front seal. After investigation, CFM determined that the HPT inner stationary seal, P/N 1808M56G01, may not have received the correct braze heat treat cycle at the time of the honeycomb replacement. As a result, the affected HPT inner stationary seal may have a condition that could lead to a localized separation of the replaced honeycomb, which may reduce the life of the rotating air HPT front seal. AD 2021-10-09 requires removal, inspection, and replacement of the affected HPT inner stationary seal and, depending on the findings, replacement of the rotating air HPT front seal, HPT rotor blades, and No. 3 ball bearing. The agency issued AD 2021-10-09 to prevent failure of the HPT inner stationary seal and the rotating air HPT front seal, which could result in uncontained release of the rotating air HPT front seal, damage to the engine, and damage to the airplane.

Since the FAA issued AD 2021-10-09, the manufacturer notified the FAA that the service information, which is incorporated by reference, incorrectly lists the year of certain honeycomb repairs. The manufacturer subsequently published revised service information that establishes a single date for the honeycomb repairs. Additionally, the manufacturer notified the FAA that affected HPT inner stationary seals could be installed on CFM CFM56-5C model turbofan engines. The FAA, therefore, determined that the unsafe condition is likely to exist or develop on CFM CFM56-5C model turbofan engines with an affected HPT inner stationary seal installed.

The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.

The FAA reviewed the following service information:

• CFM Service Bulletin (SB) CFM56-5C S/B 72-0796, Revision 02, dated August 10, 2022.

• CFM SB CFM56-5B S/B 72-0952, Revision 02, dated August 10, 2022.

• CFM SB CFM56-7B S/B 72-1054, Revision 02, dated August 10, 2022.

This service information, differentiated by engine model, specifies procedures for inspecting the HPT inner stationary seal honeycomb. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

This proposed AD would retain none of the requirements of AD 2021-10-09. This proposed AD would require removal, inspection, and replacement of the affected HPT inner stationary seal and, depending on the findings, replacement of the rotating air HPT front seal, HPT rotor blades, and No. 3 ball bearing. This proposed AD would also revise the applicability to add CFM CFM56-5C model turbofan engines.

The FAA estimates that this AD, if adopted as proposed, would affect 210 engines installed on airplanes of U.S. registry. Operators have the option to replace or repair the affected HPT inner stationary seal. The parts cost includes the estimated costs for replacement with a repaired HPT inner stationary seal.

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

The FAA estimates the following costs to do any necessary replacements that would be required based on the results of the proposed inspection. The agency has no way of determining the number of engines that might need these replacements:

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 that the 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 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-2022-1422; Project Identifier AD-2022-01208-E” 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 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 Mehdi Lamnyi, Aviation Safety Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA was notified by the engine manufacturer of three aborted takeoffs and two ATBs caused by HPC stall. A subsequent investigation by the manufacturer revealed that wear on the No. 3 bearing spring finger housing can lead to high levels of NSV, which could induce HPC stall. This wear manifests itself early on as higher than typical OFDP loading. As a result of its investigation, the manufacturer published service information that specifies procedures for calculating the OFDP data and replacing the affected No. 3 bearing spring finger housing. This condition, if not addressed, could result in engine power loss at a critical phase of flight such as takeoff or climb, loss of thrust control, reduced controllability of the airplane, and loss of the airplane.

The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.

The FAA reviewed CFM Service Bulletin LEAP-1B-72-00-0369-01A-930A-D, Issue 001-00, dated August 22, 2022. This service information specifies procedures for calculating the OFDP data and replacing the affected No. 3 bearing spring finger housing. This service information also identifies the serial numbers of the affected No. 3 bearing spring finger housings installed on LEAP-1B turbofan engines. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

This proposed AD would require a calculation of the OFDP data and, depending on the results of the calculation, replacement of the No. 3 bearing spring finger housing. This proposed AD would also prohibit the installation of an engine with an affected No. 3 bearing spring finger housing onto an airplane that already has one engine with an affected No. 3 bearing spring finger housing installed.

The FAA considers that this proposed AD would be an interim action. The design approval holder is currently developing a modification that will address the unsafe condition identified in this proposed AD. Once this modification is developed, approved, and available, the FAA might consider additional rulemaking.

The FAA estimates that this AD, if adopted as proposed, would affect 8 engines installed on airplanes of U.S. registry.

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.

This proposed rule is published in exercise of authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs (Assistant Secretary; AS-IA) by 209 Departmental Manual (DM) 8.

The regulations governing administrative appeals of actions by Indian Affairs officials are in title 25, chapter I of the Code of Federal Regulations (25 CFR part 2). The last major revision of the part 2 regulations was in 1989. See 54 FR 6478 (Feb. 10, 1989).

The Department proposes to revise the appeals regulations in a number of ways, as explained below:

A number of significant changes have been made to the organization of Indian Affairs since publication of the current part 2 regulations in 1989. In 2003, the office of the Director of the Bureau of Indian Affairs was created and charged with some of the responsibilities previously carried out by the Commissioner of Indian Affairs and the Deputy Commissioner of Indian Affairs. 130 DM 3 (Apr. 21, 2003). The Bureau of Indian Education, formerly an agency within the Bureau of Indian Affairs (BIA), was established as a separate Bureau. More recently, the Secretary created the Bureau of Trust Funds Administration within the Office of the Assistant Secretary—Indian Affairs. Several other offices are not within any Bureau, reporting directly to the Assistant Secretary: the Office of Indian Gaming, the Office of Indian Economic Development, and the Office of Self-Government. Furthermore, today more decisions are being made in the Central Office of BIA, rather than the Agency and Regional Offices. The current part 2 regulations do not provide for such changes within the organization or allow for certain types of decisions to have administrative appeals.

Prior to the publication of the current part 2 regulations, the Secretary terminated the position of Deputy Assistant Secretary, reporting directly to the Assistant Secretary, and established the position of Deputy to the Assistant Secretary, within the BIA and reporting to the Commissioner of Indian Affairs. Sec. Order 3112. The current part 2 regulations include the Deputies to the Assistant Secretary among the BIA officials whose decisions are subject to appeal to the IBIA (with the exception of the Deputy to the Assistant Secretary (Indian Education Programs)). Shortly after publication of the current part 2 regulations, the Department re-instated Deputy Assistant Secretaries within the office of the Assistant Secretary, and retitled the Deputies to the Assistant Secretary as Office Directors within the BIA. The proposed revisions bring the regulatory language in line with the structure of Indian Affairs, and clarify that the Assistant Secretary has jurisdiction over appeals of actions by Deputy Assistant Secretaries.

Subsequent to the 1989 promulgations of the current part 2 regulations, Congress and the President directed Federal agencies to use plain and direct language in agencies' regulations. See the Plain Writing Act of 2010 (124 Stat. 2861), E.O. 12866 (1993), and E.O. 13565 (2011). This draft revision complies with those directives.

The shift from paper documents sent via United States mail, to electronic documents sent via the internet, is one of the defining transformations of our era. But the greater convenience, speed, and economy that make a modern paperless case-filing system so superior cannot be enjoyed until necessary infrastructure is in place. For the BIA, as well as for stakeholders across Indian country, it will be some time before such infrastructure is fully enabled.

Proposed subpart B, at § 2.214(i), authorizes BIA officials to permit electronic filings, but preserves the default of reliance on hard copies.

The Assistant Secretary is particularly interested in public comments on the proposed regulations' treatment of electronic filing.

Proposed subpart E, at §§ 2.508, 2.509, and 2.510, addresses the Assistant Secretary's authority to take jurisdiction over an appeal to the IBIA, and clarifies the processes applicable to any appeals to the Assistant Secretary. In order to ensure that the Assistant Secretary has sufficient time to scrutinize a notice of appeal to the IBIA, and decide whether to assume jurisdiction over it, the deadline by which the Assistant Secretary must notify the IBIA of a decision to take jurisdiction has been extended, from 20 days after IBIA's receipt of the Notice of Appeal under the current regulations, to 40 days after IBIA's receipt of the Notice of Appeal.

The Assistant Secretary is particularly interested in public comments on the proposed regulations' treatment of appeals to the Assistant Secretary.

Proposed subpart F sets out the process by which a person may try to compel a BIA official to take action on a request or appeal. In the current part 2, comparable provisions are at 25 CFR 2.8. The current regulations direct such appeals to the next official or entity in the appeals process. For example, an appeal from the inaction of a BIA Regional Director would go to the IBIA, which has no supervisory authority over the Regional Director. The proposed revisions, on the other hand, direct all such appeals of inaction up the chain of command of the official whose alleged inaction gave rise to the appeal. Under the proposed revisions, the only action to be taken by the superior official is to direct the subordinate official to take action.

Congress exercises plenary authority over the relationship between Tribes and non-Tribal governments in the United States. Congress has delegated the responsibility for “the management of public business relating to Indians” to the Secretary of the Interior. 43 U.S.C. 1457; see also 25 U.S.C. 2. A vital component of such management is the “responsibility for carrying on government relations with [Tribes].” Goodface v. Grassrope, 708 F.2d 335, 339 (8th Cir. 1983).

Proposed subpart G sets out an appeals process intended to minimize the time during which a BIA tribal representative recognition decision does not go into effect due to being appealed. The proposed regulations make the decision of the first-level reviewing official (typically, the Regional Director) immediately effective. Interested parties may appeal the reviewing official's decision as provided in part 2, or initiate Federal litigation pursuant to the Administrative Procedures Act (APA).

The AS-IA is particularly interested in public comments on proposed subpart G.

There is currently no administrative appeal procedure by which the recipient of a statement of performance may dispute the information presented on the statement. Proposed subpart H sets out such an administrative appeals procedure. Like all administrative appeal provisions, those in proposed subpart H serve two important purposes—to provide an opportunity for the agency to correct its own errors, and to ensure development of a complete administrative record for a court to review in the event of an APA challenge to the final agency action.

The AS-IA is particularly interested in public comments on proposed subpart H.

In 2001, the Secretary established the Department's Office of Collaborative Action and Dispute Resolution (CADR). CADR manages the Department's dispute resolution program, providing employees and outside stakeholders an alternative mechanism for resolving disputes. Proposed subpart I identifies the process by which a person seeking to challenge an agency action can make use of the CADR's dispute resolution program.

On November 15, 2019, the AS-IA sent out a Dear Tribal Leader Letter, with a draft of the proposed revised part 2 regulations, inviting the Tribes to participate in consultation sessions, held January 22 and February 10, 2020. The letter also invited written comments on the proposed regulations. The AS-IA sent another Dear Tribal Leader Letter on January 14, 2022, requesting comments on a new draft, with consultation sessions on February 17 and 22, 2022. Several Tribes submitted written comments.

Several commenters urged that fee-to-trust decisions be made final more quickly. One recommendation was that the Regional Director's decision on a mandatory land acquisition be final for the Department, or that appeals go to AS-IA instead of to IBIA.

The Assistant Secretary agrees that some challenges to land-into-trust decisions are plainly without merit and are filed for no other reason than delay. Recognizing that other such challenges raise important questions deserving substantive scrutiny through the administrative appeals process, the proposed part 2 regulations do not set out a specific process for land-into-trust decisions. The drafters of the proposed part 2 regulations anticipate that, by elaborating and clarifying the process by which the Assistant Secretary may exercise jurisdiction over appeals, frivolous challenges to land-into-trust decisions may be disposed of expeditiously.

One commenter noted its support for proposed subpart H, establishing an administrative appeals process for challenging BTFA statements of performance. In contrast, another commenter expressed strong opposition to proposed subpart H, asserting that it “improperly disregards the statutory fiduciary relationship between Indians and the United States [and] improperly impairs the ability of Indian trust beneficiaries to ensure that the United States fulfill its trust duties for trust funds administration.” In addition to opposing subpart H in its entirety, the commenter objects to requiring account holders to submit a fully-documented “basis of objection” within 60 days of the date of the statement of performance.

The drafters are not persuaded that subpart H should be deleted. Over the past 20 plus years, the Department has improved its accounting practices to address shortcomings identified by the courts and the auditor. An administrative appeals process allows account holders to present a challenge without the cost of filing a Federal lawsuit. The purposes for requiring exhaustion of administrative appeals—giving an agency the opportunity to correct its own mistakes, and fostering development of a complete administrative record for purposes of judicial review—apply in this context, and justify the addition of subpart H to the Department's appeals regulations. Furthermore, the addition of subpart H does not prohibit an account holder from filing a lawsuit under the APA after completing the administrative process.

The Assistant Secretary welcomes public comments on subpart H.

One commenter suggested several additions to emphasize that a person must exhaust administrative remedies in order to bring a lawsuit under the APA. While completely agreeing with the premise, the drafters believe that the principle is well and unambiguously set out in the language of the proposed rule.

One commenter opposes allowing the Assistant Secretary to exercise jurisdiction over appeals, asserting that the exercise of that authority has “thwart[ed] the administrative appeal process and is an inefficient use of resources,” and “has led to abuses of authority.” The drafters believe that the appellate authority vested in the Assistant Secretary by the proposed part 2 is appropriate, and note the key role played by Federal courts in checking improper uses of agency authority.

The commenter further recommended that the proposed rule be modified to clarify that the test for whether a person has standing to pursue an administrative appeal, including a person seeking to participate in an appeal as an interested party, is the test articulated in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). The drafters have not adopted the specific language suggested by the commenter, nor added a definition of “legally protected interest.” But a definition of “adversely affected” has been added, explaining that it means “the decision on appeal has caused or is likely to cause injury to a legally protected interest.” In addition, the definition of “Interested party” has been revised to say that it means “a person or entity whose legally protected interests are adversely affected by the decision on appeal or may be adversely affected by the decision of the reviewing official.

This proposed subpart expands the definitions that will be used throughout the rule, including definitions for the current structure of Indian Affairs. The current regulations provide minimal definitions, and a considered effort was made to include appropriate definitions to provide clarity for the parties. Presently there exists confusion about what constitutes an administrative record. The proposed rule seeks to rectify that confusion. The proposed rule also provides definitions to distinguish between a deciding official and a reviewing official, as well as defining who has standing to make an appeal.

The current regulations clearly state that part 2 only applies to appeals from decisions made by BIA officials. Since the part 2 regulations were promulgated in 1989, the current structure of Indian Affairs has changed. Now, in addition to decisions made by officials in the BIA, decisions are made by officials in the Bureau of Indian Education, the Bureau of Trust Funds Administration, the Office of Indian Gaming, the Office of Indian Economic Development, and the Office of Self-Governance. The current regulations do not provide a process for the administrative appeal of actions by the officials of any of those offices.

The proposed rule provides an avenue for decisions made by the various offices within Indian Affairs to be appealed. Subject to any exceptions to this part and other applicable law or regulation, an individual may appeal any discrete written decision made by a decision-maker that adversely affects his or her legally protected interests, including a determination by the decision-maker that he or she lacks the authority to take the action that was requested. The proposed rule also contains a chart identifying actions that are not appealable under this part because those actions are appealable under some other part in title 25 of the CFR, or under provisions in title 5, 41, 42, or 48 of the CFR.

Under the IBIA's current regulations, the IBIA's general appellate authority is limited to decisions by BIA officials. 43 CFR 4.1(b)(2); 4.330. Therefore, the proposed part 2 regulations vest AS-IA with appellate authority over decisions by Indian Affairs officials who are not within the BIA. If IBIA's jurisdictional scope is expanded in the future, the Assistant Secretary may consider revising part 2 to vest in the IBIA jurisdiction over appeals from decisions by Indian Affairs officials who are not within the BIA.

In an effort to provide further clarity for the public, the regulations provide the precise language for the notice of appeal rights that must be included in decisions that are appealable under this part. The proposed rule states that a copy of an appealable decision will be mailed to all known interested parties at their address of record.

This proposed subpart aims to provide clarity regarding whether you have standing to appeal a decision, whether you are required to have a lawyer represent you to file an appeal, and timeframes for filing appeals. The subpart provides a chart at § 2.202 that clarifies who a decision-maker is and who would be the reviewing official responsible for reviewing an appeal of the decision. Deadlines are discussed in detail with explanations about how those deadlines are calculated and how appeals are to be filed.

The proposed rule also provides detailed information on how to submit a notice of appeal and includes a list of what information must be included in a notice of appeal. There is an explanation of who must receive copies of the notice of appeal, the deadlines for interested parties to file responses, and the information that a response must contain. The proposed rule details the role of the decision-maker in the appeals process, which is to compile the administrative record and provide it to the reviewing official.

This proposed subpart clarifies when an agency action is effective and when it becomes a final agency action (with definitions for both of those terms). The proposed rule aims to reflect IBIA case law interpreting the current regulations.

This proposed subpart provides that an interested party (as defined in the proposed regulations) may request an appeal bond where the delay caused by an appeal may result in a measurable and substantial financial loss or damage to a trust asset that is the subject of the appeal. The subpart also states that the reviewing official may on his or her own initiative require an appeal bond be posted. Currently the regulations permit appeal bonds, but do not specify what is an acceptable appeal bond. The proposed rule details acceptable forms of appeal bonds and states that the bond must have a market value at least equal to the total amount of the bond. The proposed rule makes clear that a decision on an appeal bond cannot itself be appealed.

This proposed subpart provides information concerning consolidation of appeals, partial implementation of appealed decisions, withdrawal of appeals, dismissal of appeals, and applicable deadlines.

When assessing an appeal, the reviewing official will consider all relevant documents submitted by the decision-maker and the participants that were filed within the applicable deadlines, the applicable laws, regulations, Secretarial Orders, Solicitor's Opinions, policies, implementing guidance, and prior judicial and administrative decisions that are relevant to the appeal.

The proposed subpart includes a chart at § 2.507 that provides details concerning who is a reviewing official and who will be the official responsible for considering an appeal of the reviewing official's decision. There is specific language stating that AS-IA may assume jurisdiction over an appeal to the IBIA within 40 days from the date that the IBIA received the appeal. The proposed rule provides clear language stating that interested parties may not petition AS-IA to take jurisdiction over an appeal. The rule sets forth the process for AS-IA to decide an appeal when jurisdiction is assumed from the IBIA.

These regulations do not impact the power of the Secretary or the Director of the Office of Hearings and Appeals to take jurisdiction over an appeal pursuant to 43 CFR 4.5.

This proposed subpart sets out a process by which a person can attempt to compel an agency official's action where there has been inaction. The current regulations require an individual to notify the official of their inaction, require the individual to submit certain documentation, and require the official to provide a decision within 10 day of receipt or provide a reasonable time period to issue a decision not to exceed 60 days. The proposed rule expands the time period for the official to issue a response from 10 days to 15 days. The 60-day deadline for the reviewing official's decision does not change.

The proposed rule then provides the appropriate chain of command for the Indian Affairs official so that individuals know to whom to submit their appeal of inaction. The rule also states that continued inaction is grounds for an appeal. The proposed rule establishes deadlines for each level of appeal. The rule states that if you exhaust the provisions of this subpart without obtaining a decision, the inaction is considered a final agency action. The rule clearly states that inaction by the IBIA and AS-IA is not appealable under this part.

This proposed subpart sets out an appeals process differing in some ways from the process in the rest of proposed part 2, to shorten the time frames for appeals of BIA tribal representative recognition decisions. Pursuant to the proposed subpart, a reviewing official's decision is immediately effective, but not final for the Department. The proposed subpart provides that an interested party may elect to pursue further administrative review, or file an APA challenge in Federal court.

This proposed subpart sets out a process by which Tribal or Individual Indian Money (IIM) account holders may dispute the accuracy of account balances contained within a Statement of Performance. Presently there is no opportunity for account holders to question their account balance administratively.

Currently, account holders receive a Statement of Performance at least each quarter. In limited circumstances, account holders may only receive a Statement of Performance annually based upon limited activity. The Statement of Performance contains specific information: (1) the source, type, and status of the funds; (2) the beginning balance; (3) the gains and losses; (4) receipts and disbursements; and (5) the ending balance. If an account holder believes that the balance contained within the Statement of Performance is not accurate, this subpart will provide them with an opportunity to dispute the accuracy. The appeal process must be initiated within 60 calendar days of the statement date located on the Statement of Performance.

This subpart is designed to provide an account holder with an opportunity to submit to the deciding official an objection to the Statement of Performance. The deciding official is required to acknowledge receipt of the account holder's objection within 10 calendar days. The deciding official will review the information contained within the objection, make a determination about the accuracy of the account balance, and issue a decision on the objection within 30 calendar days from the date of receipt of your objection. The account holder then has an opportunity to submit an appeal of that decision to the Director, Bureau of Trust Funds Administration. This appeal must be filed within 30 calendar days of the issuance of the decision being appealed. The Director, Bureau of Trust Funds Administration will issue a ruling within 30 calendar days of the receipt of the account holder's appeal. The account holder may then appeal the Director, Bureau of Trust Funds Administration ruling to the AS-IA. AS-IA will make a final decision on the account holder's appeal.

Statements of Performance and decisions rendered pursuant to this subpart are deemed accurate and complete when the deadline for submitting an objection to the Statement of Performance or an appeal to the decision on an objection has expired and the account holder has not submitted an objection or an appeal.

The proposed rule also notes that, if a Tribe has entered into a settlement with the United States and that settlement contains language concerning the challenge of a Statement of Performance, the language in the settlement agreement will control over these regulations.

This proposed subpart applies only to the data on the Statement of Performance itself. If an account holder wants to challenge the underlying lease that generated the proceeds deposited into their trust account, that challenge must be made (using the process in subpart A at § 2.103 and subpart B) to the individual BIA Agency or Region that approved the lease.

The Secretary established the Office of Collaborative Action and Dispute Resolution (CADR) in 2001. The Department has embraced alternative dispute resolution as an option in certain circumstances where the parties agree to participate. Adding this subpart to the part 2 regulations reaffirms the Department's commitment to providing another avenue to resolve disputes between the Department and parties.

Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant. Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The Executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

The Department of the Interior certifies that this proposed rule would not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). This proposed rule would only affect internal agency processes.

This rule is not a major rule under 5 U.S.C. 804(2). This rule:

(a) Does not have an annual effect on the economy of $100 million or more.

(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

(c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

This rule would not impose an unfunded mandate on State, local, or Tribal governments, or the private sector of more than $100 million per year. The rule would not have a significant or unique effect on State, local, or Tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq. ) is not required.

This rule would not affect a taking of private property or otherwise have taking implications under Executive Order 12630 because this rulemaking, if adopted, does not affect individual property rights protected by the Fifth Amendment or involve a compensable “taking.” A takings implication assessment is not required.

Under the criteria in section 1 of Executive Order 13132, this rule would not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. A federalism summary impact statement is not required because this proposed rule only affects internal agency processes for appeals of actions taken by officials subordinate to the Assistant Secretary—Indian Affairs.

This rule complies with the requirements of Executive Order 12988. This rule:

(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

The Department strives to strengthen its nation-to-nation relationship with Indian Tribes through a commitment to consultation with Indian Tribes and recognition of their right to self-governance and Tribal sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria in Executive Order 13175 and have identified substantial direct effects on federally-recognized Indian Tribes that will result from this rule.

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

This rule would not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (NEPA) is not required because this is an administrative and procedural regulation. (For further information see 43 CFR 46.210(i)). We have also determined that the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.

This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects is not required.

We are required by Executive Orders 12866 (section 1(b)(12)), 12988 (section 3(b)(l)(B)), and 13563 (section l(a)), and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(a) Be logically organized;

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

(c) Use common, everyday words and clear language rather than jargon;

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

(e) Use lists and tables wherever possible.

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

Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

EPA is proposing to approve revisions to the Wisconsin SIP received on September 30, 2008. EPA is also proposing to approve revisions to the Wisconsin title V Operating Permit Program. These revisions address changes made to EPA regulations that are reflected in EPA's final rule entitled “Prevention of Significant Deterioration, Nonattainment New Source Review (NA NSR), and Title V: Treatment of Certain Ethanol Production Facilities Under the `Major Emitting Facility' Definition” (hereinafter referred to as the “2007 Ethanol Rule”) as published in the Federal Register on May 1, 2007 (72 FR 24059). The 2007 Ethanol Rule amended the PSD definition of “major stationary source” in the Federal PSD regulations (40 CFR 51.166 paragraphs (b)(1)(i)(a), (b)(1)(iii)(t) and (i)(1)(ii)(t)) to exclude certain ethanol facilities from the “chemical process plant” source category. In doing so, it established the PSD major source threshold for ethanol production facilities at 250 tons per year (tpy) rather than 100 tpy. The 2007 Ethanol Rule also removes the requirement to include fugitive emissions when determining if an ethanol production facility is major for PSD and title V permitting.

On October 21, 2019, EPA responded to a petition for reconsideration of the 2007 Ethanol Rule, denying the petition with respect to the revisions of the PSD regulations reflected in that rule (as described in more detail below). EPA is now proposing to approve revisions to Wisconsin's SIP and operating permit program that are based on a part of the 2007 Ethanol Rule.

Under the CAA, there are two potential thresholds for determining whether a source is a major emitting facility that is potentially subject to the construction permitting requirements under the PSD program. One threshold is 100 tpy per pollutant, and the other is 250 tpy per pollutant. Section 169(1) of the CAA lists 28 source categories that qualify as major emitting facilities if their emissions exceed the 100 tpy threshold. If the source does not fall within one of the 28 source categories listed in section 169, then the 250 tpy threshold is applicable.

One of the source categories in the list of 28 source categories to which the 100 tpy threshold applies is chemical process plants. Since the Standard Industrial Classification code for chemical process plants includes facilities primarily engaged in manufacturing ethanol fuel, the EPA and states had previously considered such facilities to be subject to the 100 tpy threshold.

As a result of this classification, pursuant to the EPA regulations adopted under section 302(j) of the CAA, which address the treatment of fugitive emissions in applicability of PSD, chemical process plants were also required to include fugitive emissions for determining the potential emissions of such sources. See, e.g., 40 CFR 51.165(a)(1)(iv)(C). Thus, prior to promulgation of the 2007 Ethanol Rule, the classification of fuel and industrial ethanol facilities as chemical process plants had the effect of requiring these plants to include fugitive emissions of criteria pollutants when determining whether their emissions exceed the applicability thresholds for the PSD and NA NSR permit programs.

The CAA also established requirements for determining applicability for the title V operating permit program. All title V major sources must obtain a title V permit. Section 501(2) of the CAA defines “major source” for the purpose of the title V program as either a “major source” as defined by section 112 of the CAA or a “major stationary source” as defined in section 302 or part D of title I of the CAA. Under the general definition of “major stationary source” in section 302(j) of the CAA, the major source threshold for any air pollutant is 100 tons per year. Under the NA NSR requirements of Part D of title I of the CAA, the applicability of the lower thresholds for major sources is dependent upon the pollutant and the severity of the nonattainment classification. Major source thresholds for hazardous air pollutants (HAP) under section 112 of the CAA are 10 tpy for a single HAP and 25 tpy for any combination of HAPs. A source with emissions that exceed either of these thresholds is required to obtain a title V operating permit.

Section 502 of the CAA and EPA regulations provide that sources that belong to one of 28 source categories listed in 40 CFR 70.2 must include fugitive emissions in determining applicability. The list of 28 source categories may also be included in approved state operating permit regulations.

On May 1, 2007, EPA published the 2007 Ethanol Rule in the Federal Register (72 FR 24060). This final rule amended the PSD and NA NSR regulations to exclude ethanol manufacturing facilities that produce ethanol by natural fermentation processes from the “chemical process plant” category under the regulatory definition of “major stationary source.”

This change to the PSD regulations affected the threshold used to determine PSD applicability for these ethanol production facilities, clarifying that such facilities were subject to the 250 tpy major source threshold. The 2007 Ethanol Rule also changed how fugitive emissions are considered for affected ethanol production facilities. Because they would no longer be considered as part of the “chemical process plants” category, ethanol facilities would no longer be required to include fugitive emissions when determining major source status under PSD, NA NSR, and title V.

On July 2, 2007, the National Resources Defense Council (NRDC) petitioned the U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit) to review the 2007 Ethanol Rule. On that same day, EPA received a petition for administrative reconsideration and request for stay of the 2007 Ethanol Rule from NRDC. On March 27, 2008, EPA denied NRDC's 2007 administrative petition for reconsideration.

On March 2, 2009, EPA received a second petition for reconsideration and a request for stay from NRDC. In 2009, NRDC also filed a petition for judicial review challenging EPA's March 27, 2008, denial of NRDC's 2007 administrative petition in the D.C. Circuit. This challenge was consolidated with NRDC's challenge to the 2007 Ethanol Rule. In August of 2009, the D.C. Circuit granted a joint motion to hold the case in abeyance, and the case has remained in abeyance.

On October 21, 2019, EPA partially granted and partially denied NRDC's 2009 administrative petition for reconsideration. Specifically, EPA granted the request for reconsideration with regard to NRDC's claim that the 2007 Ethanol Rule did not appropriately address the CAA section 193 antibacksliding requirements for nonattainment areas.

On September 30, 2008, EPA received a request from the Wisconsin Department of Natural Resources to revise the Wisconsin SIP. This submittal included changes to the definition of “major stationary source” under Wisconsin Administrative Code chapters NR 405, NR 407, and NR 408, which incorporate into the Wisconsin regulations the changes EPA made to Federal PSD and title V regulations in the 2007 Ethanol Rule. In addition to the changes related to the 2007 Ethanol Rule, this submittal contained revisions to NR 405 and 408 with respect to the definition of “replacement unit” and how calculations are to be performed under a Plantwide Applicability Limit (PAL). EPA approved the changes to replacement unit and PAL calculations in a separate action on May 6, 2021 (86 FR 24499).

In this action EPA is proposing to approve the PSD and title V changes in NR 405 and 407 relating to the 2007 Ethanol Rule. EPA is taking no action at this time with respect to the NA NSR changes in NR 408 related to the 2007 Ethanol Rule.

The regulations that EPA is proposing to approve adopt language that is the same as or consistent with the language of EPA's 2007 Ethanol Rule. The state regulations that EPA is proposing to approve exclude production facilities that produce ethanol by natural fermentation from the “chemical process plants” category. These revisions clarify that an ethanol facility is subject to the PSD major source threshold of 250 tons per year and that such sources need not include fugitive emissions when determining major source applicability under PSD and title V.

EPA has determined that the proposed revisions will not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the CAA as required by section 110(l) of the CAA. Our determination is based on an analysis of Wisconsin's ethanol production trends, existing ethanol production permit requirements and locations with respect to ambient air monitoring, Wisconsin's statewide emissions inventory, Wisconsin's air quality design value trends, and representative photochemical modeling results for ozone and secondary fine particulate (PM 2.5 ) formation. Our analysis is included in the docket for this rulemaking.

Our analysis shows that Wisconsin's existing ethanol production facilities contribute 3.2% or less of each criteria pollutant when compared to statewide facility emissions. Wisconsin's total ethanol production has increased since 2007 but the state's air quality has steadily improved in general. Photochemical modeling of hypothetical sources representative of ethanol production facilities shows that ozone formation as a result of oxides of nitrogen (NO X ) and volatile organic compounds emissions and secondary PM 2.5 formation as a result of NOx and sulfur dioxide emissions will not themselves cause or contribute to a violation of the ozone or PM 2.5 National Ambient Air Quality Standard. In addition, the applicability of Federal and state requirements to ethanol production facilities in Wisconsin, such as New Source Performance Standards at 40 CFR part 60 and National Emission Standards for Hazardous Air pollutants at 40 CFR parts 61 and 63, will remain unaffected by this action.

EPA is proposing to approve revisions to the Wisconsin SIP in 40 CFR 52.2570. EPA is also proposing to approve revisions to the Wisconsin title V Operating Permit Program in 40 CFR part 70 appendix A. The revisions that EPA is proposing to approve change the definition of “major stationary source.” EPA is not taking action on similar changes related to NA NSR in this action. This action would approve changes to the state regulations that establish that the PSD applicability threshold for certain ethanol plants is 250 tpy and remove the requirement to include fugitive emissions when determining if an ethanol plant is subject to major source requirements under PSD and the title V Operating Permit Program. EPA has determined that these revisions are consistent with EPA's PSD and title V regulations and that approval of these revisions is consistent with the requirements of CAA section 110(l) and will not adversely impact air quality.

In this rule, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference revisions to Wisconsin Administrative Code rules NR 405.02(22)(a)1. and NR 405.07(4)(a)20., as published in the Wisconsin Register #631 on July 31, 2008, effective August 1, 2008, discussed in section IV of this preamble. EPA has made, and will continue to make, these documents generally available through www.regulations.gov and at the EPA Region 5 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

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

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

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

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

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

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

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

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

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

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

Participation in virtual public hearing.

To request a virtual public hearing, contact the public hearing team at (888) 372-8699 or by email at SPPDpublichearing@epa.gov. If requested, the virtual hearing will be held on December 16, 2022. The hearing will convene at 11:00 a.m. Eastern Time (ET) and will conclude at 5:00 p.m. ET. The EPA may close a session 15 minutes after the last pre-registered speaker has testified if there are no additional speakers. The EPA will announce further details at https://www.epa.gov/stationary-sources-air-pollution/secondary-lead-smelters-new-source-performance-standards-nsps.

If a public hearing is requested, the EPA will begin pre-registering speakers for the hearing no later than 1 business day after a request has been received. To register to speak at the virtual hearing, please use the online registration form available at https://www.epa.gov/stationary-sources-air-pollution/secondary-lead-smelters-new-source-performance-standards-nsps or contact the public hearing team at (888) 372-8699 or by email at SPPDpublichearing@epa.gov. The last day to pre-register to speak at the hearing will be December 13, 2022. Prior to the hearing, the EPA will post a general agenda that will list pre-registered speakers in approximate order at: https://www.epa.gov/stationary-sources-air-pollution/secondary-lead-smelters-new-source-performance-standards-nsps.

The EPA will make every effort to follow the schedule as closely as possible on the day of the hearing; however, please plan for the hearings to run either ahead of schedule or behind schedule.

Each commenter will have 4 minutes to provide oral testimony. The EPA encourages commenters to provide the EPA with a copy of their oral testimony electronically (via email) by emailing it to dawson.tonisha@epa.gov. The EPA also recommends submitting the text of your oral testimony as written comments to the rulemaking docket.

The EPA may ask clarifying questions during the oral presentations but will not respond to the presentations at that time. Written statements and supporting information submitted during the comment period will be considered with the same weight as oral testimony and supporting information presented at the public hearing.

Please note that any updates made to any aspect of the hearing will be posted online at https://www.epa.gov/stationary-sources-air-pollution/secondary-lead-smelters-new-source-performance-standards-nsps. While the EPA expects the hearing to go forward as described in this section, please monitor our website or contact the public hearing team at (888) 372-8699 or by email at SPPDpublichearing@epa.gov to determine if there are any updates. The EPA does not intend to publish a document in the Federal Register announcing updates.

If you require the services of a translator or a special accommodation such as audio description, please pre-register for the hearing with the public hearing team and describe your needs by December 8, 2022. The EPA may not be able to arrange accommodations without advanced notice.

Docket. The EPA has established a docket for this rulemaking under Docket ID No. EPA-HQ-OAR-2022-0481. All documents in the docket are listed in the Regulations.gov index. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy.

Written Comments. Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2022-0481, at https://www.regulations.gov (our preferred method), or the other methods identified in the ADDRESSES section. Once submitted, comments cannot be edited or removed from the docket. The EPA may publish any comment received to its public docket. Do not submit to EPA's docket at https://www.regulations.gov any information you consider to be CBI or other information whose disclosure is restricted by statute. This type of information should be submitted as discussed in the Submitting CBI section of this document.

Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e., on the Web, cloud, or other file sharing system). Please visit https://www.epa.gov/dockets/commenting-epa-dockets for additional submission methods; the full EPA public comment policy; information about CBI or multimedia submissions; and general guidance on making effective comments.

The https://www.regulations.gov/ website allows you to submit your comment anonymously, which means the EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to the EPA without going through https://www.regulations.gov/, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the internet. If you submit an electronic comment, the EPA recommends that you include your name and other contact information in the body of your comment and with any digital storage media you submit. If the EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, the EPA may not be able to consider your comment. Electronic files should not include special characters or any form of encryption and be free of any defects or viruses.

Submitting CBI. Do not submit information containing CBI to the EPA through https://www.regulations.gov/. Clearly mark the part or all of the information that you claim to be CBI. For CBI information on any digital storage media that you mail to the EPA, note the docket ID, mark the outside of the digital storage media as CBI, and identify electronically within the digital storage media the specific information that is claimed as CBI. In addition to one complete version of the comments that includes information claimed as CBI, you must submit a copy of the comments that does not contain the information claimed as CBI directly to the public docket through the procedures outlined in Written Comments section of this document. If you submit any digital storage media that does not contain CBI, mark the outside of the digital storage media clearly that it does not contain CBI and note the docket ID. Information not marked as CBI will be included in the public docket and the EPA's electronic public docket without prior notice. Information marked as CBI will not be disclosed except in accordance with procedures set forth in 40 Code of Federal Regulations (CFR) part 2.

Our preferred method to receive CBI is for it to be transmitted electronically using email attachments, File Transfer Protocol (FTP), or other online file sharing services ( e.g., Dropbox, OneDrive, Google Drive). Electronic submissions must be transmitted directly to the Office of Air Quality Planning and Standards (OAQPS) CBI Office at the email address oaqpscbi@epa.gov, and as described above, should include clear CBI markings and note the docket ID. If assistance is needed with submitting large electronic files that exceed the file size limit for email attachments, and if you do not have your own file sharing service, please email oaqpscbi@epa.gov to request a file transfer link. If sending CBI information through the postal service, please send it to the following address: OAQPS Document Control Officer (C404-02), OAQPS, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711, Attention Docket ID No. EPA-HQ-OAR-2022-0481. The mailed CBI material should be double wrapped and clearly marked. Any CBI markings should not show through the outer envelope.

Preamble acronyms and abbreviations. Throughout this document the use of “we,” “us,” or “our” is intended to refer to the EPA. We use multiple acronyms and terms in this preamble. While this list may not be exhaustive, to ease the reading of this preamble and for reference purposes, the EPA defines the following terms and acronyms here:

Organization of this document. The information in this preamble is organized as follows:

The source category that is the subject of this proposal is comprised of the secondary lead smelters regulated under CAA section 111 New Source Performance Standards. The North American Industry Classification System (NAICS) code for the source category is 331492. The NAICS code serves as a guide for readers outlining the entities that this proposed action is likely to affect. The proposed standards, once promulgated, will be directly applicable to affected facilities that begin construction, reconstruction, or modification after the date of publication of the proposed standards in the Federal Register . Federal, state, local and tribal government entities would not be affected by this action.

In addition to being available in the docket, an electronic copy of this action is available on the internet. Following signature by the EPA Administrator, the EPA will post a copy of this proposed action at https://www.epa.gov/stationary-sources-air-pollution/secondary-lead-smelters-new-source-performance-standards-nsps. Following publication in the Federal Register , the EPA will post the Federal Register version of the proposal and key technical documents at this same website.

A memorandum showing the edits that would be necessary to incorporate the changes to 40 CFR part 60, subparts L and La, proposed in this action is available in the docket (Docket ID No. EPA-HQ-OAR-2022-0481). Following signature by the EPA Administrator, the EPA also will post a copy of these documents to https://www.epa.gov/stationary-sources-air-pollution/secondary-lead-smelters-new-source-performance-standards-nsps.

The EPA's authority for this proposed rule is CAA section 111, which governs the establishment of standards of performance for stationary sources. Section 111(b)(1)(A) of the CAA requires the EPA Administrator to list categories of stationary sources that in the Administrator's judgment cause or contribute significantly to air pollution that may reasonably be anticipated to endanger public health or welfare. The EPA must then issue performance standards for new (and modified or reconstructed) sources in each source category pursuant to CAA section 111(b)(1)(B). These standards are referred to as new source performance standards, or NSPS. The EPA has the authority to define the scope of the source categories, determine the pollutants for which standards should be developed, set the emission level of the standards, and distinguish among classes, types, and sizes within categories in establishing the standards.

CAA section 111(b)(1)(B) requires the EPA to “at least every 8 years review and, if appropriate, revise” new source performance standards. However, the Administrator need not review any such standard if the “Administrator determines that such review is not appropriate in light of readily available information on the efficacy” of the standard. When conducting a review of an existing performance standard, the EPA has the discretion and authority to add emission limits for pollutants or emission sources not currently regulated for that source category.

In setting or revising a performance standard, CAA section 111(a)(1) provides that performance standards are to reflect “the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction and any nonair quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated.” The term “standard of performance” in CAA section 111(a)(1) makes clear that the EPA is to determine both BSER for the regulated sources in the source category and the degree of emission limitation achievable through application of the BSER. The EPA must then, under CAA section 111(b)(1)(B), promulgate standards of performance for new sources that reflect that level of stringency. CAA section 111(b)(5) precludes the EPA from prescribing a particular technological system that must be used to comply with a standard of performance. Rather, sources can select any measure or combination of measures that will achieve the standard.

Pursuant to the definition of new source in CAA section 111(a)(2), standards of performance apply to facilities that begin construction, reconstruction, or modification after the date of publication of the proposed standards in the Federal Register . Under CAA section 111(a)(4), “modification” means any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source or which results in the emission of any air pollutant not previously emitted. Changes to an existing facility that do not result in an increase in emissions are not considered modifications. Under the provisions in 40 CFR 60.15, reconstruction means the replacement of components of an existing facility such that: (1) The fixed capital cost of the new components exceeds 50 percent of the fixed capital cost that would be required to construct a comparable entirely new facility; and (2) it is technologically and economically feasible to meet the applicable standards. Pursuant to CAA section 111(b)(1)(B), the standards of performance or revisions thereof shall become effective upon promulgation.

Secondary lead smelters produce lead and lead alloys from lead-bearing scrap material. Lead is used to make various construction, medical, industrial, and consumer products such as batteries, glass, x-ray protection gear, and various fillers. The secondary lead smelting process consists of (1) pre-processing of lead bearing materials, (2) melting lead metal and reducing lead compounds to lead metal in the smelting furnace, and (3) refining and alloying the lead to customer specifications.

At secondary lead smelting facilities, blast and reverberatory furnaces are used in the smelting processes, and pot furnaces are used in the refining process. The processes vent PM emissions from blast and reverberatory furnaces through ductwork to control devices. Emissions of PM also occur at various points during the smelting process, such as during charging and tapping of furnaces and refining processes. Based on the NESHAP requirements, the process fugitive emissions require hooding or negative-pressure enclosures to capture PM emissions before they can be routed to control devices. Entrainment of dry materials in ambient air due to material processing, vehicle traffic, wind erosion from storage piles, and other activities can also be a source of PM emissions. Secondary lead smelting facilities use a variety of control devices ( e.g., baghouses, gas scrubbers), often in combination, to reduce PM and opacity emissions from process vent and process fugitive sources. Facilities use suppression techniques ( e.g., washing roadways, wetting storage piles) and negative-pressure enclosures to reduce PM emissions from fugitive dust sources.

The EPA proposed the original NSPS (subpart L) for the secondary lead smelting source category (40 CFR part 60, subpart L) on June 11, 1973 (38 FR 15406) and promulgated the NSPS on March 8, 1974 (39 FR 9308). The NSPS for secondary lead smelting as promulgated in 1974 regulates PM emissions from blast and reverberatory furnaces and also specifies limits for visible emissions (opacity) for blast and reverberatory furnaces and for pot (refining) furnaces. The EPA amended subpart L on October 10, 1975, to remove a provision providing that the failure to meet the NSPS emissions limits due to the presence of uncombined water in the stack gases was not considered a violation.

Subpart L specifies that owners or operators of affected facilities must limit PM emissions from blast and reverberatory furnaces to not more than 50 milligrams per dry standard cubic meter (mg/dscm) or 0.022 grains per dry standard cubic feet (gr/dscf). Subpart L also specifies that visible emissions must not exceed 20 percent opacity from blast or reverberatory furnaces and 10 percent opacity from pot furnaces.

Currently, there are 11 secondary lead smelting facilities in the United States. Each facility operates furnaces that are subject to the PM and opacity limits specified in subpart L.

To support this action, the EPA created the list of existing secondary lead smelting facilities by updating the facility list developed to support the 2012 NESHAP for secondary lead smelting (40 CFR part 63, subpart X) with information obtained from the National Emissions Inventory (NEI), Earthjustice, and the Association of Battery Recyclers (ABR). To determine the control measures currently used to control emissions from blast, reverberatory, and pot furnaces in the industry, the EPA obtained facility operating permits issued by state regulatory agencies which contained information regarding process equipment, control devices, and applicable regulatory emissions limits. The EPA also obtained reports of performance tests conducted to demonstrate compliance with NESHAP subpart X from the EPA's WebFIRE and from state regulatory agencies. Although the target pollutant of the test reports was lead, the pollutant regulated under NESHAP subpart X, some of the reports also provided PM emissions and opacity data for blast, reverberatory, and pot furnaces. The facility operating permits, test reports, and a memorandum summarizing the available PM emissions and opacity data are available in the public docket for this action (Docket ID No. EPA-HQ-OAR-2022-0481).

As noted in section II.A of this preamble, CAA section 111 requires the EPA, at least every 8 years, to review and, if appropriate revise the standards of performance applicable to new, modified, and reconstructed sources. If the EPA revises the standards of performance, they must reflect the degree of emission limitation achievable through the application of the BSER taking into account the cost of achieving such reduction and any non-air quality health and environmental impact and energy requirements. CAA section 111(a)(1).

In reviewing an NSPS to determine whether it is “appropriate” to revise the standards of performance, the EPA evaluates the statutory factors, which may include consideration of the following information:

• Expected growth for the source category, including how many new facilities, reconstructions, and modifications may trigger NSPS in the future.

• Pollution control measures, including advances in control technologies, process operations, design or efficiency improvements, or other systems of emission reduction, that are “adequately demonstrated” in the regulated industry.

• Available information from the implementation and enforcement of current requirements indicating that emission limitations and percent reductions beyond those required by the current standards are achieved in practice.

• Costs (including capital and annual costs) associated with implementation of the available pollution control measures.

• The amount of emission reductions achievable through application of such pollution control measures.

• Any non-air quality health and environmental impact and energy requirements associated with those control measures.

In evaluating whether the cost of a particular system of emission reduction is reasonable, the EPA considers various costs associated with the particular air pollution control measure or a level of control, including capital costs and operating costs, and the emission reductions that the control measure or particular level of control can achieve. The Agency considers these costs in the context of the industry's overall capital expenditures and revenues. The Agency also considers cost-effectiveness analysis as a useful metric and a means of evaluating whether a given control achieves emission reduction at a reasonable cost. A cost-effectiveness analysis allows comparisons of relative costs and outcomes (effects) of two or more options. In general, cost-effectiveness is a measure of the outcomes produced by resources spent. In the context of air pollution control options, cost-effectiveness typically refers to the annualized cost of implementing an air pollution control option divided by the amount of pollutant reductions realized annually.

After the EPA evaluates the statutory factors, the EPA compares the various systems of emission reductions and determines which system is “best” and therefore represents the BSER. The EPA then establishes a standard of performance that reflects the degree of emission limitation achievable through the implementation of the BSER. In doing this analysis, the EPA can determine whether subcategorization is appropriate based on classes, types, and sizes of sources and may identify a different BSER and establish different performance standards for each subcategory. The result of the analysis and BSER determination leads to standards of performance that apply to facilities that begin construction, reconstruction, or modification after the date of publication of the proposed standards in the Federal Register . Because the new source performance standards reflect the best system of emission reduction under conditions of proper operation and maintenance, in doing its review, the EPA also evaluates and determines the proper testing, monitoring, recordkeeping and reporting requirements needed to ensure compliance with the emission standards.

See section II.C of this preamble for information on the specific data sources that were reviewed as part of this action.

In this action, the EPA is proposing to amend existing NSPS subpart L to:

• Clarify the applicability dates.

• Update the definitions of blast, reverberatory and pot furnaces to be more consistent with the NESHAP (40 CFR part 63, subpart X).

• Require initial and periodic compliance tests for PM emissions consistent with the NESHAP (40 CFR part 63, subpart X).

• Require monitoring, recordkeeping, and reporting requirements consistent with the NESHAP (40 CFR part 63, subpart X).

• Require submission of electronic performance test reports.

We solicit comment on the amendments to the existing NSPS subpart L as described in the subsequent sections.

The EPA is also proposing to establish a new subpart (40 CFR part 60, subpart La) that applies to affected sources that begin construction, reconstruction, or modification after December 1, 2022. In subpart La, EPA is proposing that the following emission standards apply at all times, including periods of SSM:

• Limit PM emissions from blast and reverberatory furnaces to 10 mg/dscm.

• Limit PM emissions from pot furnaces to 3 mg/dscm.

• Limit opacity of blast, reverberatory, and pot furnace emissions to 0 percent.

For subpart La, the EPA is proposing the same definitions, PM testing, monitoring, recordkeeping, and reporting requirements as proposed for subpart L. In addition, we are proposing initial and periodic opacity testing for subpart La.

For 40 CFR part 60, subpart L, the EPA is proposing to amend 40 CFR 60.120 (Applicability and designation of affected facility) to clarify that subpart L applies to affected sources that commence construction or modification after June 11, 1973, but before December 1, 2022. For subpart La, the EPA is proposing to add 40 CFR 60.120a (Applicability and designation of affected facility) to specify that 40 CFR part 60, subpart La, applies to affected sources that commence construction, reconstruction, or modification after December 1, 2022.

In this action, the EPA is proposing to incorporate the definitions shown in Table 1 of this preamble into 40 CFR 60.121 (Definitions) of existing 40 CFR part 60, subpart L, and 40 CFR 60.121a (Definitions) of the proposed 40 CFR part 60, subpart La. These proposed definitions are intended to improve the clarity of the NSPS subparts and reduce potential confusion among industry and regulatory agencies by aligning the descriptions of the affected sources that would be regulated by 40 CFR part 60, subparts L and La, to be more consistent with the definitions within 40 CFR part 63, subpart X, but still with some slight differences ( e.g., minimum temperatures) that we think are appropriate, as shown in Table 1. These proposed changes do not affect the applicability of existing subpart L.

The EPA solicits comment on the proposed revisions to the process equipment definitions for subparts L and proposed process equipment definitions to be included in subpart La.

In developing NSPS subpart L, the EPA identified the types of controls used and the corresponding PM and opacity levels of blast, reverberatory, and pot furnace emissions at secondary lead smelting facilities (that were considered well controlled at the time) as described in the 1973 background document titled, Group II—New Source Performance Standards, which is available in the docket of this proposed rule. Table 2 presents the BSER the EPA identified for blast, reverberatory, and pot furnaces in 1973.

Based on the PM emissions and opacity data available at that time, the EPA established in subpart L, the following emissions limits for blast and reverberatory furnaces:

• 50 milligrams per dry standard cubic meter, mg/dscm (0.022 grains per dry standard cubic feet, gr/dscf).

• 20 percent opacity.

When the EPA finalized subpart L, PM emissions data were not available for pot furnaces; therefore, the EPA did not establish a PM limit. However, sufficient data were available to establish an opacity limit of 10 percent for pot furnaces in subpart L.

As specified in section II.D of this preamble, CAA section 111 requires the EPA to review the BSER for the source category and determine whether it is appropriate to revise the standards of performance, including consideration of available information indicating that emission limitations and percent reductions beyond those required by the current standards are achieved in practice. In making this determination for the secondary lead smelting source category, the EPA considered the following information:

• Types of demonstrated control measures for reducing PM emissions and opacity from blast, reverberatory, and pot furnaces.

• Available test data showing the levels of PM emissions and opacity currently achieved for blast, reverberatory, and pot furnaces.

• Costs of implementing the PM and opacity controls.

We solicit comment on the BSER analysis and the proposed standards of performance as explained in the subsequent sections.

For our BSER review, to determine the types of control measures currently used in the secondary lead industry to reduce PM emissions and opacity from blast, reverberatory, and pot furnaces, the EPA obtained and reviewed operating permits issued by state regulatory agencies for each secondary lead smelting facility in the United States. The EPA's permit review identified that secondary lead smelting facilities continue to use filtration ( i.e., fabric filters or baghouses), scrubbers, and afterburners to reduce PM emissions and opacity from blast furnaces, and filtration and scrubbers to reduce PM emissions and opacity from reverberatory furnaces. For pot furnaces, the permit review identified the continued use of baghouses and scrubbers to reduce opacity from furnace emissions. Three facilities also use wet electrostatic precipitators (WESPs) to control furnace PM emissions and opacity (two facilities control a combined gas stream of reverberatory and pot furnace emissions using a WESP, and one facility controls pot furnace emissions using a WESP). The memorandum documenting the EPA's review of facility operating permits titled CAA Section 111(b)(1)(B) Review Memorandum for Secondary Lead Smelters can be found in the docket for the proposed rulemaking (Docket ID No. EPA-HQ-OAR-2022-0481). The EPA seeks comment regarding the findings of our permit review.

To determine the current level of PM emissions and opacity reduction achieved for blast, reverberatory, and pot furnaces, the EPA reviewed facility performance test data obtained from WebFIRE, the EPA's repository of performance test reports, and from state regulatory agencies. The memorandum documenting the available PM and opacity data titled Particulate Matter and Opacity Emissions Test Data Memorandum for Secondary Lead Smelters is available in the docket for the proposed rulemaking (Docket ID No. EPA-HQ-OAR-2022-0481). The EPA's review of the available PM and opacity data identified that, since promulgation of NSPS subpart L in 1974, technologies for reducing PM emissions and opacity from blast, reverberatory, and pot furnaces have improved dramatically ( e.g., due to improved bag materials, replacement of older baghouses). The 2011 proposal preamble for NESHAP subpart X (76 FR 29059) also noted the improved performance of particulate control devices.

For blast and reverberatory furnaces, the PM emissions data available to the EPA consist of 42 test run-level data points obtained using EPA Method 5 (the same test method specified in 40 CFR part 60, subpart L) from three facilities, with average values ranging from 0.34 to 9.53 mg PM/dscm. For pot furnaces, the PM emissions data available to the EPA consist of 27 test run-level data points obtained using EPA Method 5 from three facilities, with average values ranging from 0.46 to 1.77 mg PM/dscm. The available opacity data for blast and reverberatory furnaces consist of nine test-run level data points from one facility, and the available opacity data for pot furnaces consist of six test-run level data points from two facilities. All the available data show that opacity from blast, reverberatory, and pot furnace emissions is zero percent.

The EPA seeks comment regarding the available PM and opacity data for blast, reverberatory, and pot furnaces and the findings of our data review.

As part of the EPA's BSER review, we consider the costs associated with the technologies and measures identified as potential BSER options. Based on the finding of our data review described above, the control technologies and levels of PM emissions and opacity the EPA identified in our BSER review for blast, reverberatory, and pot furnaces emissions reflect the reductions achieved by the control devices installed to comply with the standards for particulate lead specified in NESHAP subpart X. Therefore, we do not expect additional emission control costs attributable to the NSPS associated with the use of filtration ( i.e., fabric filters or baghouses), scrubbers, and afterburners to reduce PM emissions and opacity from blast furnaces, and filtration and scrubbers to reduce PM emissions and opacity from reverberatory furnaces, and the use of baghouses and scrubbers to reduce opacity from pot furnace emissions, as the affected sources would install these air pollution control devices to meet the lead limits specified in NESHAP subpart X regardless of the requirements in the NSPS.

In our BSER evaluation, the EPA also considered the application of a WESP on the exhaust of a fabric filter (or similarly effective PM control device). The application of a WESP would be an additional control beyond the controls needed to comply with NESHAP subpart X. The memorandum documenting the EPA's consideration of additional controls ( Evaluation of Control Costs for Secondary Lead Smelting Facilities ) can be found in the docket for the proposed rulemaking (Docket ID No. EPA-HQ-OAR-2022-0481). The EPA evaluated the capital and annual costs of installing a WESP on the exhaust of a fabric filter (or similarly effective PM control device) for a typical new, modified, or reconstructed facility using the cost algorithms developed to support NESHAP subpart X and the exhaust flow rates for blast, reverberatory, and pot furnaces contained in facility test reports. The capital cost associated with the addition of a WESP was approximately $7.4 million and would achieve an incremental PM emissions reduction of 2.7 tons per year (based on 95-percent PM reduction efficiency). The total annual cost was approximately $1.4 million, resulting in a cost-effectiveness of approximately $528,000 per ton of PM.

Based on our BSER evaluation, considering the costs and PM emissions reductions, the EPA proposes to determine that the cost-effectiveness of requiring a WESP, in addition to the controls installed to comply with NESHAP subpart X, would be well above the level of cost-effectiveness that the EPA has historically accepted for PM control options. For example, the EPA rejected a control option for PM in the 2008 Coal Preparation NSPS that had a cost-effectiveness of approximately $91,400 per ton (73 FR 22904). In the technical document titled Draft Cost Impacts of the Revised NESHAP for the Secondary Lead Smelting Source Category, which is associated with the 2012 Risk and Technology Review (RTR) for NESHAP subpart X, the EPA concluded that the costs for a WESP were high (cost-effectiveness of $4,000,000/ton of lead reduced) and did not propose requirements for the installation of the WESP under the ample margin of safety analysis (76 FR 29058). Based on section 12.11 (Secondary Lead Processing) of EPA's Compilation of Air Emissions Factors (AP-42), lead emissions from blast, reverberatory, and pot furnaces comprise approximately 23, 26, and 40 percent of the PM emissions, respectively. Assuming a conversion factor of 0.23 tons of lead/ton of PM, the equivalent cost-effectiveness of the WESP in terms of PM reduction would be approximately $920,000/ton of PM in this case.

We request comment on the control cost analysis and the EPA's conclusions regarding cost effectiveness of control options.

Based on the EPA's permit review and assessment of control costs, the EPA proposes to identify that the BSER for PM emissions and opacity from new, modified, or reconstructed blast furnaces is an afterburner followed by efficient particulate controls ( e.g., fabric filter that may be installed in series with a HEPA filter and/or a venturi scrubber). Because the proposed BSER controls are currently being used in the secondary lead industry to comply with NSPS subpart L and NESHAP subpart X emissions standards for blast furnaces, we believe that their use has been adequately demonstrated. Also, because facilities with new, modified, or reconstructed blast furnaces would install these types of controls to comply with NESHAP subpart X, we do not expect that there will be any capital or annual costs, or any non-air quality health, environmental, or energy impacts associated with the BSER proposed for blast furnaces for purposes of NSPS subpart La.

For new, modified, or reconstructed reverberatory and pot furnaces, the EPA proposes to determine that the BSER for PM and opacity is efficient particulate controls ( e.g., fabric filter that may be installed in series with a HEPA filter, venturi scrubber and/or a WESP). The use of these types of controls has been adequately demonstrated because they are also currently being used in the secondary lead industry to comply with NSPS subpart L and NESHAP subpart X. Also, because facilities with new, modified, or reconstructed reverberatory and pot furnaces would install these types of controls to comply with the lead standards in NESHAP subpart X, we do not expect that there will be any additional capital or annual costs, or any non-air quality health, environmental, or energy impacts associated with the BSER proposed for reverberatory and pot furnaces for purposes of subpart La.

Based on the available data above, the EPA is proposing in 40 CFR part 60, subpart La, that the standard of performance for blast and reverberatory furnaces that reflects BSER is a reduction in the current NSPS PM emissions limit of 50 mg PM/dscm or less, to 10 mg PM/dscm or less. For the standard of performance for pot furnaces, the EPA is proposing in subpart La to establish a PM emissions limit of 3 mg/dscm or less. The available data also demonstrates that the BSER for opacity results in the absence of visible emissions from the blast, reverberatory, and pot furnace exhaust. Consequently, the EPA is proposing that the standard of performance for opacity from blast, reverberatory, and pot furnaces emissions is 0 percent.

The EPA solicits comment regarding our BSER analysis and resulting conclusions regarding the proposed standards of performance for PM and opacity for subparts La.

In its 2008 decision in Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008), the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) vacated portions of two provisions in the EPA's CAA section 112 regulations governing the emissions of HAP during periods of SSM. Specifically, the court vacated the SSM exemption contained in 40 CFR 63.6(f)(1) and (h)(1), holding that under section 302(k) of the CAA, emissions standards or limitations must be continuous in nature and that the SSM exemption violates the CAA's requirement that some section 112 standard apply continuously. Consistent with Sierra Club v. EPA, we are proposing standards in this rule that apply at all times. The NSPS general provisions in 40 CFR 60.11(c) currently exclude opacity requirements during periods of startup, shutdown, and malfunction and the provision in 40 CFR 60.8(c) contains an exemption from non-opacity standards. We are proposing in 40 CFR part 60, subpart La, specific requirements at section 40 CFR 60.122a(d) that override the general provisions for SSM provisions. We are proposing that all standards in 40 CFR part 60, subpart La, apply at all times.

The EPA has attempted to ensure that the general provisions we are proposing to override are inappropriate, unnecessary, or redundant in the absence of the SSM exemption. We are specifically seeking comment on whether we have successfully done so.

In proposing the standards in this rule, the EPA has taken into account startup and shutdown periods and, for the reasons explained in this section of the preamble, has not proposed alternate standards for those periods.

Periods of startup, normal operations, and shutdown are all predictable and routine aspects of a source's operations. Malfunctions, in contrast, are neither predictable nor routine. Instead, they are, by definition, sudden, infrequent, and not reasonably preventable failures of emissions control, process, or monitoring equipment. (40 CFR 60.2). The EPA interprets CAA section 111 as not requiring emissions that occur during periods of malfunction to be factored into development of CAA section 111 standards. Nothing in CAA section 111 or in case law requires that the EPA consider malfunctions when determining what standards of performance reflect the degree of emission limitation achievable through “the application of the best system of emission reduction” that the EPA determines is adequately demonstrated. While the EPA accounts for variability in setting emissions standards, nothing in section 111 requires the Agency to consider malfunctions as part of that analysis. The EPA is not required to treat a malfunction in the same manner as the type of variation in performance that occurs during routine operations of a source. A malfunction is a failure of the source to perform in a “normal or usual manner,” and no statutory language compels EPA to consider such events in setting section 111 standards of performance. The EPA's approach to malfunctions in the analogous circumstances (setting “achievable” standards under section 112) has been upheld as reasonable by the D.C. Circuit in U.S. Sugar Corp. v. EPA, 830 F.3d 579, 606-610 (2016).

As part of an ongoing effort to improve compliance with federal air emission regulations, the EPA reviewed the testing and monitoring requirements of subpart L to determine whether additional requirements were needed to ensure compliance with the emissions limits proposed in subpart La, which reflects the BSER under conditions of proper operation and maintenance.

Currently, subpart L (40 CFR 60.123) requires initial performance testing using EPA Method 5 (Determination of Particulate Matter Emissions from Stationary Sources) to demonstrate compliance with the PM emissions limit for blast and reverberatory furnaces, and EPA Method 9 (Visual Opacity) to demonstrate compliance with the opacity limits for blast, reverberatory, and pot furnaces. Subpart L does not specify any monitoring requirements.

In this action, the EPA is proposing that facilities subject to 40 CFR part 60, subparts L and La, conduct periodic PM testing of blast, reverberatory, and pot furnace emissions. The EPA is also proposing under 40 CFR part 60, subpart La, periodic testing of opacity from blast, reverberatory, and pot furnace emissions. We evaluated whether or not periodic opacity testing should be proposed for the legacy subpart L. Given the requirements in NESHAP subpart X ( e.g., full enclosure with negative pressure and continuous differential pressure monitoring to ensure negative pressure is maintained at all times, along with stringent emissions limits for lead from all vents), we expect opacity from all existing furnaces are probably very low or zero. Therefore, any periodic opacity testing using EPA Method 9 under subpart L would result in new costs of $2,344 per facility (assuming semi-annual training and certification for facility staff and conduct of the periodic Method 9 evaluations) but yield little benefit. Therefore, the EPA is not proposing a requirement for periodic opacity testing in subpart L. However, for subpart La we are proposing periodic testing for the absence of visible emissions using EPA Method 22 (to demonstrate that opacity is zero percent), which results in an additional one-time training cost for facility personnel of $1,277 ($426 per facility). Nevertheless, the EPA solicits comment as to whether the legacy subpart L should include periodic opacity requirements and if so, why, and how frequent those readings should be.

The proposed amendments would allow facilities to request less frequent periodic PM testing from 12 months to 24 months, if the previous periodic compliance test demonstrates that PM emissions are 50 percent or less of the proposed emissions limit ( e.g., PM emissions from blast and reverberatory furnaces of 25 mg/dscm or less for facilities subject to 40 CFR part 60, subpart L). The EPA believes that the proposed requirements for periodic testing ensure that the PM controls are meeting the NSPS limits over time, and the proposed testing frequency would align 40 CFR part 60, subparts L and La, with the NESHAP (40 CFR part 60, subpart X), which requires initial and periodic testing for lead.

To reduce the testing burden on facilities, the EPA is also proposing alternatives to EPA Method 5 for measuring filterable PM and EPA Method 9 for determining opacity (visual emissions). In this action, the EPA is proposing to allow facilities to determine the PM emissions by gravimetric analysis of the particulate filter used in the sampling train of either EPA Method 12 (Determination of Inorganic Lead Emissions from Stationary Sources) or EPA Method 29 (Determination of Metals Emissions from Stationary Sources). Because both EPA Methods 12 and 29 capture PM on a sampling train filter that is subsequently analyzed to determine lead concentration, facilities can conduct an additional gravimetric analysis of the EPA Method 12 or EPA Method 29 filter to determine PM emissions from blast, reverberatory, and pot furnaces, rather than performing separate tests using EPA Method 5. For determining opacity, the EPA is proposing in subpart La to allow the use of ASTM International (ASTM) D7520-16 (Standard Test Method for Determining the Opacity of a Plume in the Outdoor Ambient Atmosphere) as an alternative to EPA Method 9. Because the proposed opacity limit for blast, reverberatory, and pot furnaces is zero percent, rather than a specific percent opacity, the EPA is proposing in subpart La the use of EPA Method 22 (Visual Determination of Fugitive Emissions from Material Sources and Smoke Emissions from Flares) for determining the absence of visual emissions ( i.e., zero percent opacity) in addition to allowing use of Method 9 or the digital camera opacity technology ( i.e., ASTM D7520-16).

To estimate the costs associated with the proposed periodic PM testing requirements for subpart L, the EPA assumed that two of the 11 existing secondary lead smelting facilities would undergo reconstruction over the 3-year reporting period and thus would become subject to new subpart La. The EPA assumed that each of the remaining nine facilities currently subject to subpart L would determine the PM emissions from blast, reverberatory, and pot furnaces (one test for each type of furnace) by weighing the particulate filter of the EPA Method 12 or 29 sampling trains as part of the periodic performance tests for particulate lead required by NESHAP subpart X. The incremental cost of conducting the additional gravimetric analysis of the particulate filter prior to subsequent analysis under EPA Methods 12 or 29 is approximately $300 per test per facility. Assuming three stacks are tested at each facility, we estimate that the total costs for periodic PM testing will be $900 per facility, or a total of $8,100 for the source category (nine facilities). Therefore, the estimated total PM testing costs associated with proposed amendments to subpart L are approximately $0 for the initial year and $8,100 for each subsequent year for PM testing ($900 per year per facility).

To estimate the costs associated with the proposed testing requirements for subpart La, the EPA assumed two reconstructed sources and one new source ( i.e., three facilities) will become subject to proposed subpart La over the next three-year period. The incremental cost for measuring PM as part of the initial and periodic performance tests required by proposed subpart La (in conjunction with conducting the initial and periodic performance tests required under NESHAP subpart X) is approximately $300 per test per facility. Assuming 3 stacks are tested at each facility, the total estimated cost are $900 per facility per year for periodic PM tests. The approximate cost for the one-time training of facility personnel in the use of EPA Method 22 is approximately $426 per facility. Therefore, estimated total initial cost is $1,326 per facility, and the total PM and opacity testing costs associated with proposed subpart La (assuming 3 facilities are affected) are approximately $3,978 for the initial year and $2,700 for each subsequent year ($900 per year per facility). The public docket for this proposed action (Docket ID No. EPA-HQ-OAR-2022-0481) contains the OMB burden estimate, which presents the calculations and assumptions the EPA used to estimate the costs of the proposed testing requirements for subparts L and La.

In this action, the EPA is proposing to add 40 CFR 60.124 (Monitoring requirements) to subpart L and subpart La to include some of the monitoring requirements specified in 40 CFR 63.548(a) through (i) (Monitoring requirements) of the NESHAP (40 CFR part 63, subpart X), including development of a standard operating procedures (SOP) manual for control devices used to reduce PM and opacity emissions. The EPA believes that having consistent monitoring requirements between the NSPS and NESHAP will reduce the monitoring burden on affected facilities. We estimate these additions to monitoring requirements in the subparts L and La will result in very minimal additional costs, if any, because we expect all facilities already have SOPs and implement the other monitoring requirements to comply with the NESHAP. The EPA solicits comment regarding the assumptions used to estimate the proposed monitoring burden of subparts L and La.

In this action, the EPA is proposing to add the notification, recordkeeping and reporting requirements found in the proposed 40 CFR 60.125 and 60.125a (Notification, recordkeeping, and reporting requirements) to NSPS subparts L and La, respectively. The proposed requirements clarify that facilities must comply with the notification and recordkeeping requirements specified in 40 CFR 60.7 and the reporting requirements specified in 40 CFR 60.19. The proposed requirements in subparts L and La incorporate the recordkeeping requirements from NESHAP subpart X specified in 40 CFR 63.550(b); (c)(1) through (4); (c)(11) and (12); (e)(4) through (7); and (e)(13). The EPA is also proposing that owners and operators of secondary lead smelters subject to the current and new NSPS at 40 CFR part 60, subparts L and La, submit electronic copies of required performance test reports through the EPA's Central Data Exchange (CDX) and Compliance and Emissions Data Reporting Interface (CEDRI). A description of the electronic data submission process is provided in the memorandum Electronic Reporting Requirements for New Source Performance Standards (NSPS) and National Emission Standards for Hazardous Air Pollutants (NESHAP) Rules, available in the docket for this action. The proposed rules require that performance test results collected using test methods that are supported by the EPA's Electronic Reporting Tool (ERT) as listed on the ERT website  1 at the time of the test be submitted in the format generated through the use of the ERT or an electronic file consistent with the xml schema on the ERT website, and other performance test results be submitted in portable document format (PDF) using the attachment module of the ERT.

Additionally, the EPA has identified two broad circumstances in which electronic reporting extensions may be provided. These circumstances are (1) Outages of the EPA's CDX or CEDRI which preclude an owner or operator from accessing the system and submitting required reports, and (2) force majeure events, which are defined as events that will be or have been caused by circumstances beyond the control of the affected facility, its contractors, or any entity controlled by the affected facility that prevent an owner or operator from complying with the requirement to submit a report electronically. Examples of force majeure events are acts of nature, acts of war or terrorism, or equipment failure or safety hazards beyond the control of the facility. The EPA is providing these potential extensions to protect owners and operators from noncompliance in cases where they cannot successfully submit a report by the reporting deadline for reasons outside of their control. In both circumstances, the decision to accept the claim of needing additional time to report is within the discretion of the Administrator, and reporting should occur as soon as possible.

The electronic submittal of the reports addressed in this proposed rulemaking will: increase the usefulness of the data contained in those reports; keep up with current trends in data availability and transparency; further assist in the protection of public health and the environment; improve compliance by facilitating the ability of regulated facilities to demonstrate compliance with requirements and by facilitating the ability of the EPA and delegated state, local, tribal, and territorial air agencies to assess and determine compliance; and ultimately reduce burden on regulated facilities, delegated air agencies, and the EPA. Electronic reporting also eliminates paper-based, manual processes, thereby saving time and resources, simplifying data entry, eliminating redundancies, minimizing data reporting errors, and providing data quickly and accurately to the affected facilities, air agencies, the EPA, and the public. Moreover, electronic reporting is consistent with the EPA's plan  2 to implement Executive Order 13563 and is in keeping with the EPA's agency-wide policy  3 developed in response to the White House's Digital Government Strategy. 4 For more information on the benefits of electronic reporting, see the memorandum Electronic Reporting Requirements for New Source Performance Standards (NSPS) and National Emission Standards for Hazardous Air Pollutants (NESHAP) Rules, referenced earlier in this section.

Finally, the EPA believes that aligning the recordkeeping and reporting requirements of the NSPS and NESHAP reduces the burden on facilities.

Pursuant to CAA section 111(b)(1)(B), the effective date of the final rule requirements in 40 CFR part 60, subparts L and La, will be the promulgation date of this action. Affected sources that commence construction, or reconstruction, or modification after June 11, 1973, but before December 1, 2022, must comply with all requirements of 40 CFR part 60, subpart L, no later than May 30, 2023. Affected sources that commence construction, reconstruction, or modification after December 1, 2022 must comply with all requirements of 40 CFR part 60, subpart La, no later than the effective date of the final rule or upon startup, whichever is later.

In determining the BSER, the CAA section 111(a)(1) requires the EPA to consider potential emission control approaches, accounting for the estimated costs as well as impacts on energy, solid waste, and other effects. The impacts in this section are expressed as incremental differences between the impacts of emission units complying with the proposed 40 CFR part 60, subparts L and La, and the baseline requirements (NSPS subpart L or NESHAP subpart X). The impacts are presented for emission units at secondary lead smelting facilities that commence construction, reconstruction, or modification over the 3-year period following proposal of the amendments of 40 CFR part 60, subparts L and La.

To determine the incremental impacts of the proposed amendments to 40 CFR part 60, subpart L, the EPA assumed that nine facilities would be subject to subpart L over the 3-year reporting period ( i.e., two of the 11 facilities currently subject to the existing NSPS would undergo reconstruction). To determine the incremental impacts of the proposed 40 CFR part 60, subpart La, the EPA projected the number of new, modified, or reconstructed emission units that would become subject to regulation during the 3-year period after proposal of the subpart. Based on a modest growth forecast of 2.4 percent over the next 5 years and the decrease in the number of facilities over the last decade, the EPA conservatively projects that one new affected facility will be constructed over the next 3 years. The EPA also assumes that two existing facilities will undergo reconstruction of a blast, reverberatory or pot furnace over the 3-year period covered by the burden estimate.

The proposed amendments to 40 CFR part 60, subpart La, would:

• Reduce the PM emissions limit for blast and reverberatory furnaces from 50 to 10 mg/dscm.

• Establish PM emissions limits for pot furnaces of 3 mg/dscm.

• Lower the opacity limit for blast and reverberatory furnaces from 20 percent to 0 percent.

• Lower the opacity limit for pot furnaces from 10 percent to 0 percent.

New or reconstructed blast, reverberatory, and pot furnaces will also be subject to the NESHAP (40 CFR part 63, subpart X) requirements for new sources, while modified blast, reverberatory, and pot furnaces will also be subject to the NESHAP requirements for existing sources. NESHAP subpart X regulates particulate lead emissions from process vent, process fugitive, and fugitive dust sources. The emissions capture systems and control devices that are already required by the NESHAP to comply with the lead limits for blast, reverberatory, and pot furnaces will also control PM emissions for the NSPS. Therefore, the proposed 40 CFR part 60, subpart La, will not result in actual reductions of PM emissions. However, codifying the lower PM and opacity limits in the proposed 40 CFR part 60, subpart La, will significantly reduce the PM and opacity allowable emissions affected sources that commence construction, reconstruction, or modification after December 1, 2022.

Indirect or secondary air emissions impacts result from the increased energy usage associated with the operation of control devices ( e.g., increased secondary emissions of criteria pollutants from electricity generating power plants). As part of our evaluation of the BSER, we considered whether the proposed standards of performance would result in any secondary air emissions impacts. The EPA does not expect that facilities will need any additional control devices or other equipment to meet the proposed NSPS requirements beyond those that would already be needed to comply with the NESHAP. Therefore, the EPA does not attribute any secondary impacts to the proposed 40 CFR part 60, subpart La.

For 40 CFR part 60, subparts L and La, the EPA is proposing that facilities conduct periodic performance tests to measure PM emissions from blast, reverberatory, and pot furnaces using EPA Method 5 (Determination of Particulate Matter Emissions from Stationary Sources). The NESHAP (40 CFR part 63, subpart X) also requires periodic tests for lead using EPA Method 12 (Determination of Inorganic Lead Emissions from Stationary Sources) or EPA Method 29 (Metal Emissions from Stationary Sources). Because both of the NESHAP test methods capture PM on a sampling train filter that is subsequently analyzed to determine lead concentration, facilities can conduct an additional gravimetric analysis of the EPA Method 12 or EPA Method 29 filter to determine PM emissions from blast, reverberatory, and pot furnaces, rather than performing separate tests using EPA Method 5. The EPA estimates that the additional gravimetric analysis of the EPA Method 12 or EPA Method 29 particulate filter costs approximately $300 per test per year. To estimate the total cost associated with the proposed periodic PM performance tests under 40 CFR part 60, subparts L and La, the EPA assumed that each respondent under the respective subparts would conduct three PM tests per year (one for each furnace type). See section IV.C for more details on cost estimates.

For 40 CFR part 60, subpart La, the EPA is also proposing that facilities periodically determine the opacity of blast, reverberatory, and pot furnace emissions. For subpart La, the EPA is proposing that facilities conduct initial and periodic tests using EPA Method 9 or EPA Method 22 (Visible Determination of Fugitive Emissions) to determine the absence of opacity in blast, reverberatory, and pot furnace emissions. To estimate the cost of the initial and periodic opacity tests for subpart La, the EPA assumed that facilities would use EPA Method 22, rather than EPA Method 9, because EPA Method 22 is sufficient for determining the absence of opacity ( i.e., the proposed opacity limit of zero percent). The EPA assumed that facilities would train facility personnel to implement EPA Method 22 (at a one-time cost of $426 per facility), but not incur additional capital costs.

For 40 CFR part 60, subpart L, the total incremental cost for the periodic PM testing over the 3-year period is $24,300 ( i.e., three tests each year at $300 per test for nine respondents). For 40 CFR part 60, subpart La, the total incremental cost for PM testing over the 3-year period is $8,100 ( i.e., three tests each year at $300 per test for three respondents) and the total incremental cost for opacity testing is $1,277 for EPA Method 22 training ( i.e., one-time cost of $426 for three respondents). The total incremental cost for emissions testing for the two reconstructed sources and one new source projected over the 3-year period is $8,526.

The EPA did not estimate cost impacts for the proposed monitoring requirements in 40 CFR part 60, subparts L and La, because this action proposes to allow subject facilities to comply with these subparts by complying with the applicable monitoring requirements for new sources specified in the NESHAP (40 CFR part 63, subpart X). Therefore, there is no additional monitoring burden.

Economic impact analyses focus on changes in market prices and output levels. If changes in market prices and output levels from complying with the rule in the primary markets are significant enough, impacts in other markets may also be examined. Both the magnitude of costs associated with the proposed requirements and the distribution of these costs among affected facilities can have a role in determining how the market will change in response to a regulatory requirement.

Based on the estimates for PM emissions and opacity testing described in sections III.C and IV.C of this preamble, and the recordkeeping and reporting requirements described in section VI.B of this preamble, we estimate that the total cost for emissions testing, reporting, and recordkeeping for subpart L for the nine existing sources projected over the 3-year period is $80,000. The average annual cost per facility is approximately $3,000. The nine facilities subject to this rule are owned by six different parent companies with an annual average revenue of $3.4 billion in 2021. The economic impact associated with this cost as an annual cost per sales, for the average parent company in the industry, is less than 0.0001 percent and is not expected to result in a significant market impact, regardless of whether it is fully passed on to the consumer or fully absorbed by the affected firms.

In addition, the cost analysis assumed that facilities subject to proposed 40 CFR part 60, subpart La, would conduct initial and periodic tests for PM emissions and opacity, but would not need to install control devices to meet the proposed PM and opacity emissions limits because the new, modified, or reconstructed facility would install the same types of controls already necessary to comply with NESHAP subpart X. The EPA also assumed that facilities subject to proposed subpart La would not incur monitoring costs attributed to the new NSPS.

The EPA views the testing costs to be upper-bound estimates on the potential compliance costs of the proposed 40 CFR part 60, subpart La. Even under the upper bound cost assumptions described above, the EPA expects the potential economic impacts of this proposed action will be small.

As required by the Regulatory Flexibility Act (RFA), we performed an analysis to determine if any small entities might be disproportionately impacted by the proposed requirements. Based on this analysis, we conclude that the estimated costs for the proposed rule will not have a significant economic impact on a substantial number of small entities. Details of this analysis are presented in Section VI.C of this preamble and in the memorandum Economic Impact Analysis for the Proposed New Source Performance Standards (NSPS) for Secondary Lead Smelters available in the docket of this action.

The proposed revisions to 40 CFR part 60, subpart L, and the newly proposed subpart La would provide needed clarifications for regulated sources, improve the practical enforceability of the rules and enhance compliance and enforcement. The EPA expects that implementing the proposed amendments to 40 CFR part 60, subparts L and La, will help ensure that control systems used to reduce PM and opacity emissions from blast, reverberatory, and pot furnaces are properly operated and maintained over time.

Additionally, the proposed amendments to require electronic reporting of emissions test results in 40 CFR part 60, subparts L and La, will ultimately reduce the burden on regulated facilities, delegated air agencies, and the EPA, and also improve access to data, minimizes data reporting errors, and eliminate paper waste and redundancies.

Consistent with the EPA's commitment to integrating environmental justice in the Agency's actions, and following the directives set forth in multiple Executive orders, the Agency has conducted an analysis of the demographic groups living near existing secondary lead smelting facilities. Executive Order 12898 directs the EPA to identify the populations of concern who are most likely to experience unequal burdens from environmental harms; specifically, minority populations ( i.e., people of color), low-income populations, and indigenous peoples (59 FR 7629; February 16, 1994). Additionally, Executive Order 13985 is intended to advance racial equity and support underserved communities through Federal Government actions (86 FR 7009; January 20, 2021). The EPA defines environmental justice as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” The EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.” In recognizing that people of color and low-income populations often bear an unequal burden of environmental harms and risks, the EPA continues to consider ways of protecting them from adverse public health and environmental effects of air pollution.

This action proposes standards of performance for new, modified, and reconstructed sources that commence construction after the rule is proposed. The locations of the construction of new secondary lead smelters are not known. In addition, it is not known which of the existing secondary lead smelters will be modified or reconstructed in the future, if at all. Therefore, the demographic analysis was conducted for the 11 existing secondary lead smelters as a characterization of the demographics in areas where these facilities are currently located.

To examine the potential for any EJ issues that might be associated with the source category, we performed a demographic analysis. This demographic analysis is an assessment of individual demographic groups of the populations living within 5 kilometers (km) and within 50 km of the existing facilities. The EPA then compared the data from this analysis to the national average for each of the demographic groups.

The results of the demographic analysis (see Table 3) indicate that, for populations within 5 km of the 11 secondary lead smelters, the percent Hispanic or Latino population is higher than the national average (38 percent versus 19 percent). The percentages of “other and multiracial population” and people living in linguistic isolation within the same geographic area are higher than the national average (12 percent versus 8 percent and 8 percent versus 5 percent, respectively). The percentage of the population over 25 without a high school diploma is higher than the national average (19 percent versus 12 percent), while the percentage of the population living below the poverty line is similar to the national average.

The results of the analysis of populations within 50 km of the 11 secondary lead smelters are similar to the 5 km analysis, with the Hispanic or Latino population and “other and multiracial population” both above the national average.

A summary of the demographic assessment performed for the secondary lead smelters is included as Table 3. The methodology and the results of the demographic analysis are presented in a technical report, “Analysis of Demographic Factors for Populations Living Near Secondary Lead Smelting Source Category Operations,” available in the docket for this action (Docket ID No. EPA-HQ-OAR-2022-0481).

The EPA expects that the Standards of Performance for Secondary Lead Smelters Constructed after December 1, 2022 will ensure compliance with the PM and opacity emissions limits (which also apply during periods of startup, shutdown, and malfunctions) via initial and periodic emissions testing. Proposed subpart La will also codify the improvements in PM control technologies that have occurred in the industry since promulgation of the current NSPS subpart L. Therefore, there would be a positive, beneficial effect for populations in proximity to any future affected sources, which in this source category have tended to disproportionately include minority, low-income and indigenous communities.

The EPA proposes to amend the 40 CFR 60.17 to incorporate by reference the following voluntary consensus standards (VCS):

• ASTM D7520-16, “Standard Test Method for Determining the Opacity of a Plume in the Outdoor Ambient Atmosphere” describes procedures to determine the opacity of a plume, using digital imagery and associated hardware and software, where opacity is caused by PM emitted from a stationary point source in the outdoor ambient environment. The opacity of emissions is determined by the application of a digital camera opacity technique (DCOT) that consists of a digital still camera, analysis software, and the output function's content to obtain and interpret digital images to determine and report plume opacity.

The ASTM D7520-16 document is available from ASTM at https://www.astm.org or l100 Barr Harbor Drive, West Conshohocken, PA 19428-2959, telephone number: (610) 832-9500, fax number: (610) 832-9555 at service@astm.org.

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

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

The information collection activities in this proposed rule have been submitted for approval to OMB under the PRA. The updated Information Collection Request (ICR) document that the EPA prepared for subpart L has been assigned EPA ICR number 1128.13, and the new ICR prepared for proposed subpart La has been assigned EPA ICR number 2729.01. You can find copies of the ICRs in the docket for this rule, and it is briefly summarized here.

The EPA is proposing amendments to the existing NSPS (40 CFR part 60, subpart L) that require:

• updated process equipment definitions;

• periodic testing for PM emissions;

• incorporation of monitoring, recordkeeping, and reporting requirements that are consistent with NESHAP subpart X; and

• electronic reporting of performance tests.

The EPA is also proposing a new subpart (40 CFR part 60, subpart La) for new, modified or reconstructed facilities that start up after this proposal that:

• updates definitions to be consistent with the NESHAP subpart X;

• establishes a tighter PM limit (10 mg/dscm) for blast and reverberatory furnaces;

• establishes a new PM limit (3 mg/dscm) for pot furnaces;

• establishes a tighter opacity limit (0%) for blast, reverberatory , and pot furnaces;

• removes the exemptions for periods of SSM;

• requires initial and periodic testing for PM and opacity emissions;

• incorporates monitoring, recordkeeping, and reporting requirements that are consistent with the NESHAP (40 CFR part 63, subpart X); and

• requires electronic reporting of performance tests.

Respondents/affected entities: Secondary Lead Smelting Facilities.

Respondent's obligation to respond: Mandatory (40 CFR part 60, subparts L and La)

Estimated number of respondents: Nine for subpart L (EPA ICR number 1128.13) and three for subpart La (EPA ICR number 2729.01).

Frequency of response: Annually.

Total estimated burden: 228 hours (per year) for subpart L (EPA ICR number 1128.13) and 130 hours (per year) for subpart La (EPA ICR number 2729.01). Burden is defined at 5 CFR 1320.3(b).

Total estimated cost: $26,477 (per year), includes $5,400 annualized capital or operation & maintenance costs for subpart L (EPA ICR number 1128.13) and $14,728 (per year), includes $2,700 annualized capital or operation & maintenance costs for subpart La (EPA ICR number 2729.01).

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9.

Submit your comments on the Agency's need for this information, the accuracy of the provided burden estimates and any suggested methods for minimizing respondent burden to the EPA using the docket identified at the beginning of this rule. The EPA will respond to any ICR-related comments in the final rule. You may also send your ICR-related comments to OMB's Office of Information and Regulatory Affairs using the interface at www.reginfo.gov/public/do/PRAMain. Find this particular information collection by selecting “Currently under Review—Open for Public Comments” or by using the search function. OMB must receive comments no later than January 3, 2023.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. The small entities subject to the requirements of this action are small businesses classified under NAICS 331492 (Secondary Smelting, Refining, and Alloying of Nonferrous Metal (except Copper and Aluminum)) with 750 or fewer employees (including its subsidiaries and affiliates). The Agency has determined that four of the 11 facilities (36 percent of the facilities) are classified as small businesses and may experience an impact of 0.18 percent of revenues based on the maximum costs-to-sales ratio and an annual revenue of $2.8 million in 2021. Details of this analysis are presented in the memorandum Economic Impact Analysis for the Proposed New Source Performance Standards (NSPS) for Secondary Lead Smelters available in the docket of this action. Based on this analysis, we conclude that the estimated costs for the proposed rule will not have a significant economic impact on a substantial number of small entities.

This proposed action does not contain an 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 proposal is not expected to impact state, local, or tribal governments and there are no nationwide annualized costs of this proposed rule for affected industrial sources. Thus, this rule is not subject to the requirements of sections 202 and 205 of the UMRA. This rule is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. This rule will not apply to such governments and will not impose any obligations upon them.

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 (65 FR 67249, November 9, 2000). It will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. This proposed rule imposes requirements on owners and operators of secondary lead smelting facilities and not tribal governments. The EPA does not know of any secondary lead smelting facilities owned or operated by Indian tribal governments. However, if there are any, the effect of this proposed rule on communities of tribal governments would not be unique or disproportionate to the effect on other communities. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 (62 FR 19885, April 22, 1997) as applying to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it is based solely on technology performance.

The EPA interprets Executive Order 13045 as applying to those regulatory actions that concern environmental health or safety risks that the 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 action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

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

This action involves technical standards. The EPA proposes to use EPA Method 5 (Determination of Particulate Matter emissions from Stationary Sources) to measure filterable PM and EPA Method 9 (Visual Determination of the Opacity of Emissions from Stationary Sources) to determine visible emissions from blast and reverberatory process vents and process fugitive emissions. Therefore, the EPA conducted searches for the Secondary Lead NSPS through the Enhanced National Standards Systems Network Database managed by the American National Standards Institute (ANSI). We also contacted voluntary consensus standards (VCS) organizations and accessed and searched their databases.

We conducted searches for EPA Methods 1, 1A, 2, 2A, 2B, 2C, 2D, 2F, 2G, 2H, 3, 3A, 3c, 4, 5, 9, 12, 22, and 29 of 40 CFR part 60, appendix A. During the EPA's VCS search, if the title or abstract (if provided) of the VCS described technical sampling and analytical procedures that are similar to the EPA's reference method, the EPA reviewed it as a potential equivalent method. We reviewed all potential standards to determine the practicality of the VCS for this rule. This review requires significant method validation data that meet the requirements of EPA Method 301 for accepting alternative methods or scientific, engineering, and policy equivalence to procedures in the EPA reference methods. The EPA may reconsider determinations of impracticality when additional information is available for a particular VCS. No applicable VCS was identified for EPA Method 22.

In this proposed action, the EPA is incorporating by reference the VCS ASTM D7520-16, Standard Test Method for Determining the Opacity of a Plume in the Outdoor Ambient Atmosphere, as an acceptable alternative to EPA Method 9 with the following caveats:

• During the certification procedure for the digital camera opacity technique (DCOT) outlined in Section 9.2 of ASTM D7520-16, the facility or the DCOT vendor must present the plumes in front of various backgrounds of color and contrast representing conditions anticipated during field use such as blue sky, trees, and mixed backgrounds (clouds or a sparse tree stand).

• The facility must also have standard operating procedures in place including daily or other frequency quality checks to ensure the equipment is within manufacturing specifications as outlined in Section 8.1 of ASTM D7520-16.

• The facility must follow the recordkeeping procedures outlined in 40 CFR 63.10(b)(1) for the DCOT certification, compliance report, data sheets, and all raw unaltered joint photographic experts group (JPEG) files used for opacity and certification determination.

• The facility or the DCOT vendor must have a minimum of four independent technology users apply the software to determine the visible opacity of the 300 certification plumes. For each set of 25 plumes, the user may not exceed 15-percent opacity of anyone reading and the average error must not exceed 7.5-percent opacity.

• This approval does not provide or imply a certification or validation of any vendor's hardware or software. The onus to maintain and verify the certification or training of the DCOT camera, software, and operator in accordance with ASTM D7520-16 is on the facility, DCOT operator, and DCOT vendor. This method describes procedures to determine the opacity of a plume, using digital imagery and associated hardware and software, where opacity is caused by PM emitted from a stationary point source in the outdoor ambient environment. The opacity of emissions is determined by the application of a DCOT that consists of a digital still camera, analysis software, and the output function's content to obtain and interpret digital images to determine and report plume opacity. The ASTM D7520-16 document is available from ASTM at https://www.astm.org or l100 Barr Harbor Drive, West Conshohocken, PA 19428-2959, telephone number: (610) 832-9500, fax number: (610) 8329555 at service@astm.org.

The EPA is finalizing the use of the guidance document, Fabric Filter Bag Leak Detection Guidance, EPA-454/R- 98-015, Office of Air Quality Planning and Standards (OAQPS), U.S. Environmental Protection Agency, Research Triangle Park, North Carolina, September 1997. This document provides guidance on the use of triboelectric monitors as fabric filter bag leak detectors. The document includes fabric filter and monitoring system descriptions; guidance on monitor selection, installation, setup, adjustment, and operation; and quality assurance procedures. The document is available at https://nepis.epa.gov/Exe/ZyPDF.cgi?Dockey=2000D5T6.PDF.

Additional information for the VCS search and determinations can be found in the docket for this proposed action (Docket ID No. EPA-HQ-OAR-2022-0481).

The 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 documentation for this decision is contained in section IV.F of this preamble. All relevant documents are available in the docket for this action (Docket ID No. EPA-HQ-OAR-2022-0481).

The assessment of populations in close proximity of secondary lead smelters shows some demographic groups that are higher than the national average, however, we determined that the human health impacts are not disproportionate for these groups because this action proposes changes to the standards that will increase protection for communities. The EPA determined that the standards should be revised to reflect cost-effective developments in practices, process, or controls and BSER. The proposed changes will provide additional health protection for all populations, including communities already overburdened by pollution, which are often minority, low-income, and indigenous communities. The proposed changes will have beneficial effects on air quality and public health for populations exposed to emissions from facilities in the source category. Further, this rulemaking complements other actions already taken by the EPA to reduce emissions and improve health outcomes for overburdened and underserved communities.

Why we need to publish a rule. Under the Act, if a species is determined no longer to be an endangered or threatened species, we may reclassify the species or remove it from the Federal Lists of Endangered and Threatened Wildlife and Plants due to recovery. Island bedstraw is listed as endangered, and Santa Cruz Island dudleya is listed as threatened. We are proposing to remove these species from the Federal List of Endangered and Threatened Plants ( i.e., delist these species) because we have determined that they are no longer in danger of extinction now or within the foreseeable future. Delisting a species can be completed only by issuing a rule.

What this document does. This rule proposes to remove island bedstraw and Santa Cruz Island dudleya from the Federal List of Endangered and Threatened Plants in title 50 of the Code of Federal Regulations (at 50 CFR 17.12(h)) based on their recovery.

The basis for our action. Under the Act, we may determine that a species is an endangered species or threatened species based on any of 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. We must consider these same five factors in removing a species from the List (delisting).

Under the Act, we must review the status of all listed species at least once every five years. We must delist a species if we determine, on the basis of the best available scientific and commercial data, that the species is neither a threatened species nor an endangered species. Our regulations at 50 CFR 424.11 identify three reasons why we might determine that a listed species is neither an endangered species nor a threatened species: (1) The species is extinct; (2) the species has recovered, or (3) the original data used at the time the species was classified were in error. Here, we have determined that island bedstraw and Santa Cruz Island dudleya have recovered, therefore we are proposing to delist them.

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

We particularly seek comments concerning:

(1) Reasons we should or should not remove island bedstraw and Santa Cruz Island dudleya from the List of Endangered and Threatened Plants. Please include any biological qualitative and/or quantitative data to support the reasons.

(2) Relevant data concerning any threats (or lack thereof) to island bedstraw and Santa Cruz Island dudleya, particularly any data on the possible effects of climate change.

(3) The extent of State protection and management that would be provided to these plants as delisted species.

(4) Current or planned activities within the geographic range of island bedstraw and Santa Cruz Island dudleya that may negatively impact or benefit the species.

(5) The draft post-delisting monitoring plans and the methods and approaches detailed in them.

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

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

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

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

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on https://www.regulations.gov.

Because we will consider all comments and information received during the comment period, our final determinations may differ from this proposal. Based on the new information we receive (and any comments on that new information), we may conclude that one or both of the species should remain listed as their current status (island bedstraw as endangered and Santa Cruz Island dudleya as threatened) or we may determine that one or both species should be reclassified.

Section 4(b)(5) of the Act provides for a public hearing on this proposal, if requested. Requests must be received by the date specified in DATES . Such requests must be sent to the address shown in FOR FURTHER INFORMATION CONTACT . We will schedule a public hearing on this proposal, if requested, and announce the date, time, and place of the hearing, as well as how to obtain reasonable accommodations, in the Federal Register and local newspapers at least 15 days before the hearing. We may hold the public hearing in person or virtually via webinar. We will announce any public hearing on our website. The use of virtual public hearings is consistent with our regulation at 50 CFR 424.16(c)(3).

A species status assessment (SSA) team prepared SSA reports for both island bedstraw (Service 2021a, entire) and Santa Cruz Island dudleya (Service 2021b, entire). The SSA team was composed of Service biologists, in consultation with other species experts. These SSA reports represent a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting both of the species.

In accordance with our July 1, 1994, peer review policy (59 FR 34270; July 1, 1994), the Service's August 22, 2016, Director's Memo on the Peer Review Process, we solicited independent scientific reviews of the information contained in the SSA reports for island bedstraw and Santa Cruz Island dudleya. We sent the island bedstraw SSA report to three independent peer reviewers and received three responses. We sent the Santa Cruz Island dudleya SSA report to three independent peer reviewers and received one response. Results of this peer review process can be found at https://ecos.fws.gov. The island bedstraw SSA report was also submitted to our Federal, State, and Tribal partners for scientific review. We received one partner review from the U.S. Geological Survey (USGS; Channel Islands Field Station in Ventura, California). The Santa Cruz Island dudleya SSA report was also submitted to our Federal, State, and Tribal partners for scientific review. We received two partner reviews from The Nature Conservancy (TNC) and USGS (Channel Islands Field Station in Ventura, California). In preparing this proposed rule, we incorporated the results of these reviews, as appropriate, into the final SSA reports for both species, which are the foundation for this proposed rule.

On July 31, 1997, we listed island bedstraw as an endangered species (62 FR 40954), based primarily on the threats of soil loss, habitat alteration, and herbivory from feral pig rooting and sheep grazing. At the time of listing, we found that designation of critical habitat was not prudent, and no further action regarding critical habitat has been taken (62 FR 40954, July 31, 1997; p. 40971). The Recovery Plan that includes island bedstraw was signed on September 26, 2000 (71 FR 54837-54838). The downlisting and delisting criteria for island bedstraw that are in the Recovery Plan (Service 2000, pp. 65-66) are listed below in Recovery Goals and Objectives.

By the time the Recovery Plan was signed in 2000, sheep had been removed from all of the northern Channel Islands. Additionally, TNC and National Park Service (NPS) also initiated an 18-month feral pig removal program that removed all pigs from Santa Cruz Island by the end of 2006 (Parkes et al. 2010, entire). No feral pigs occurred on San Miguel Island after 1900 (McEachern et al. 2016, p. 759). In 2009, we conducted a 5-year review pursuant to 16 U.S.C. 1533(c)(2)(A) in which we determined that island bedstraw still met the definition of an endangered species based on the following threats: (1) soil loss and erosion resulting from years of feral pig rooting and sheep grazing, (2) loss of habitat to nonnative, invasive plants, (3) random naturally occurring events due to its limited distribution and small population size, and (4) effects from climate change (Service 2009b, entire). We published a notice announcing the initiation of a new 5-year review of the status of island bedstraw on June 18, 2018 (83 FR 28251-28254). We developed the SSA that formed the basis for this action as part of our 5-year review process. This action constitutes the 5 year review for island bedstraw.

On July 31, 1997, we listed Santa Cruz Island dudleya as a threatened species (62 FR 40954-40974), based primarily on the threats of soil loss, herbivory by feral pigs, disturbance by pig rooting, and vulnerability to collecting for botanical or horticultural use. At the time of listing, we found that designation of critical habitat was not prudent, and no further action regarding critical habitat has been taken (62 FR 40954, July 31, 1997; p. 40971). The Recovery Plan that covers island bedstraw also includes Santa Cruz Island dudleya. The delisting criteria for Santa Cruz Island dudleya that are in the Recovery Plan (Service 2000, p. 65) are listed below in Recovery Goals and Objectives.

TNC and NPS initiated an 18-month feral pig removal program that removed all pigs from Santa Cruz Island by the end of 2006 (Parkes et al. 2010, entire). In 2009, we conducted a 5-year review pursuant to 16 U.S.C. 1533(c)(2)(A) in which we determined that Santa Cruz Island dudleya still met the definition of a threatened species based on the following threats: (1) soil loss and degradation, (2) competition from invasive plant species, and (3) stochastic events on the species' single population with limited geographic range. We published a notice announcing the initiation of a new 5-year review of the status of Santa Cruz Island dudleya on July 26, 2019 (84 FR 36116-36118). We developed the SSA that formed the basis for this action as part of our 5-year review process. This action constitutes the 5 year review for Santa Cruz Island dudleya.

Island bedstraw occurs on Santa Cruz and San Miguel Islands of the Channel Islands in Santa Barbara County, California (figure 1). It is a long-lived, flowering woody shrub that can be more than 1 m (3 ft) tall and may sprawl laterally wider than it is tall. The basal stem diameter can exceed 13 millimeters (mm) (0.5 inch (in)) (McEachern et al. 2019a, p. 20). Stems can be glabrous, scabrous, or sparsely hairy. Its leaves are large for the genus and tend to turn red and be lost under summer drought stress conditions. Flowers are small (3-4 mm or 0.10-0.15 in diameter) and are greenish white, often with darker petal tips or centers. The fruit is a schizocarp (a dry fruit that splits into parts when ripe) comprising two single-seeded mericarps, typically referred to as nutlets. It is not known how long adult plants can live. They can likely live more than 20 years, if not longer (McEachern pers. comm. 2020).

Historically, island bedstraw has been characterized as restricted to coastal bluffs, steep rocky slopes, and sea cliffs in the coastal-bluff scrub vegetation (Junak et al. 1995, p. 254; Dempster 1993, p. 982; Soza 2012, p. 1211). However, the plant has also been found in other places, like in pine forest and at interior locations. For Santa Cruz Island, the number of known island bedstraw sites has increased with each successive survey effort, from 13 to 27 to 36 over the course of 20 years and 3 survey efforts. The number of sites on San Miguel Island has remained at six. Each site represents a separate population of island bedstraw for the purposes of this analysis. Where data are available, the estimated number of plants within sites has increased over time, sometimes dramatically. Plant totals have gone from about 100 to about 10,000 for Santa Cruz Island, and the most recent total does not include most of the terraces or cliffs on the coastal sites. The total number of known plants on San Miguel Island has increased from about 500 to about 5,000, again not including most cliff face plants. Most of the 42 total sites are either extant or presumed to be extant. Island bedstraw seems to be expanding on terraces and other non-cliff habitats; this expansion is demonstrated at several sites. Further information on the basic biology and ecology of island bedstraw is summarized in the SSA report (Service 2021a, entire).

Santa Cruz Island dudleya is a succulent perennial, known from only one population (represented by five subpopulations) on the westernmost tip of Santa Cruz Island in Santa Barbara County, California (figure 1). In general, little is known specifically about the life history of Santa Cruz Island dudleya. The species is a perennial succulent that is known to reproduce only by seed. The seed is extremely small and may be transported only a short distance by wind or water where it may germinate quickly if conditions allow or remain viably dormant for years. Many Dudleya species recruit most successfully into a cryptogamic substrate, but it is unknown if this substrate is a requirement for Santa Cruz Island dudleya. Seedlings require open spaces for germination and are not reproductive in their first year. Plants are self-compatible but require pollinators, some of which may be native bees. Seed production is not pollinator limited, and a reproductive plant can produce more than 1,000 seeds per year. Plants can live for at least several years. Older plants that have previously flowered may have years when they do not flower. Santa Cruz Island dudleya is found mostly on the lowest marine terraces from about 20-30 m (66-98 ft) elevation. The soils are sandy and marine sediment derived or have a greater clay fraction derived from basaltic rock (Klinger et al. unpublished p. 6). The more coastal soils are considered to be more saline (Vivrette 2002, entire). Further information on the basic biology and ecology of Santa Cruz Island dudleya is summarized in the SSA report (Service 2021b, entire).

Section 4(f) of the Act directs us to develop and implement recovery plans for the conservation and survival of endangered and threatened species unless we determine that such a plan will not promote the conservation of the species. Under section 4(f)(1)(B)(ii) of the Act, recovery plans must, to the maximum extent practicable, include objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of section 4 of the Act, that the species be removed from the Lists of Endangered and Threatened Wildlife and Plants.

Recovery plans provide a roadmap for us and our partners on methods of enhancing conservation and minimizing threats to listed species, as well as measurable criteria against which to evaluate progress towards recovery and assess the species' likely future condition. However, they are not regulatory documents and do not substitute for the determinations and promulgation of regulations required under section 4(a)(1) of the Act. A decision to revise the status of a species or to delist a species is ultimately based on an analysis of the best scientific and commercial data available to determine whether a species is no longer an endangered species or a threatened species, regardless of whether that information differs from the recovery plan's delisting or downlisting criteria.

There are many paths to accomplishing recovery of a species, and recovery may be achieved without all of the criteria in a recovery plan being fully met. For example, one or more criteria may be exceeded while other criteria may not yet be accomplished. In that instance, we may determine that the threats are minimized sufficiently, and that the species is robust enough, that it no longer meets the definition of an endangered species or a threatened species. In other cases, we may discover new recovery opportunities after having finalized the recovery plan. Parties seeking to conserve the species may use these opportunities instead of methods identified in the recovery plan. Likewise, we may learn new information about the species after we finalize the recovery plan. The new information may change the extent to which existing criteria are appropriate for identifying recovery of the species. The recovery of a species is a dynamic process requiring adaptive management that may or may not follow all of the guidance provided in a recovery plan.

The Recovery Plan (Service 2000, p. 62) describes the recovery goals, objectives, and criteria that need to be achieved to consider removing island bedstraw and Santa Cruz Island dudleya from the Federal List of Endangered and Threatened Plants. We summarize the goals and then discuss progress toward meeting the recovery criteria in the following sections.

In a recovery plan, the overall recovery goal is to improve the status of the species such that the protections of the Act are no longer needed. Preliminary goals and objectives include (1) stabilizing and protecting populations, (2) conducting research necessary to refine recovery criteria, and (3) reclassifying to threatened (downlisting) those species currently listed as endangered (reclassification being appropriate when a taxon is no longer in danger of extinction throughout all or a significant portion of its range). Because data upon which to base decisions about reclassification and recovery were mostly lacking when the Recovery Plan was developed, downlisting and recovery criteria in the Recovery Plan are necessarily preliminary (Service 2000, p. 62).

The following Recovery Plan criteria that generally apply to both of these species have been met: (1) provide protection and adaptive management of currently known (and in some cases historical) sites, (2) provide evidence that the populations at these sites are stable or increasing over a number of years, which is determined by the life history of the individual species, (3) preserve the genetic diversity of the species by storing seeds in cooperating facilities, and (4) develop reliable seed germination and propagation techniques.

Determining whether a species' current status meets the overall recovery goal and associated objectives requires a broad evaluation of the trends in the observed numbers of occurrences indicated by surveys and monitoring, the abundance and distribution of suitable habitat, evaluation of the seed bank, and the effectiveness of protective measures that have been implemented to reduce threats from human activities such as soil loss and herbivory by feral pigs and ungulates, disturbance by pig rooting, collecting for botanical and horticultural use, and trampling by humans. In addition, we also examine the effectiveness of protective measures that have been implemented to reduce threats from nonnative plants, the risk associated with small population size, climate change, and fire. In order to evaluate threats to the species, we must consider potential impacts within the foreseeable future. The Recovery Plan (Service 2000, entire) used 10-15 years as the period of time to evaluate population stability because that time period reflects a typical multiyear precipitation cycle (Service 2000, p. 63). Unique recovery criteria for island bedstraw and Santa Cruz Island dudleya are covered in the Recovery Plan (Service 2000, pp. 64-68) and are discussed below.

The Recovery Plan identified seven criteria for reclassifying island bedstraw to a threatened species (Service 2000, pp. 64-68):

• Downlisting Criterion 1: Stabilize or increase populations on Santa Cruz and San Miguel Islands with evidence of natural recruitment for a period of 20 years that includes the normal precipitation cycle.

Status of achieving recovery criterion: Since the time of listing, researchers have found 20 new sites on Santa Cruz Island, increasing the total number of sites from 19 to 39. On San Miguel Island, for three of the six historical sites that were surveyed, significant increases in numbers occurred between the time of listing and the most recent survey. Combined numbers for both islands have increased from 512-603 at time of listing to at least 15,730 individuals at the time of 2015/2017 helicopter surveys. We conclude that this criterion has been met.

• Downlisting Criterion 2: Reintroduce plants to historical locations.

Status of achieving recovery criterion: No introduction of island bedstraw to any of the historical locations where it is possibly extirpated and no outplantings to augment extant historical sites have occurred. However, at the historical sites, plant numbers are generally increasing without plants being added artificially. Although this criterion has not been met, we conclude it is no longer needed.

• Downlisting Criterion 3: Seed stored in CPC cooperating facilities.

Status of achieving recovery criterion: Currently, only a small amount of seed from a few sites on Santa Cruz Island is stored at the Santa Barbara Botanic Garden, a Center for Plant Conservation (CPC) facility. Thorough conservation seed banking requires seed in storage from a good representation of sites over the range of the species. A few sites with currently only a small amount of seed is not sufficient to cover that standard. We conclude that this criterion has not been met. While there are plans to bolster the conservation seed bank, with its substantial natural recovery of island bedstraw this criterion no longer has the urgency it did at the time of listing. Because so many new populations have been documented, and the abundance is so great, conservation seed banking is not as important as it was thought to be at the time of the recovery plan.

• Downlisting Criterion 4: Seed germination and propagation techniques understood.

Status of achieving recovery criterion: While seeds have been germinated and the resulting plants have grown for several years, the conditions in which the seeds were germinated were fairly general, and optimal protocols have not been developed. We conclude that this criterion has not been met. However, we do not think Downlisting Criterion 4 is needed anymore because the numbers of island bedstraw are increasing naturally.

• Downlisting Criterion 5: Life-history research conducted.

Status of achieving recovery criterion: Research over a 10-year period on the life history of the species, particularly flower biology and demography, has shown recruitment episodes and documented transitions through life-history stages. We conclude that this criterion has been met.

• Downlisting Criterion 6: Surveys of historical locations conducted.

Status of achieving recovery criterion: Most of the 13 historical sites on Santa Cruz Island have been resurveyed at least once, and plants were found at most of those sites. In addition, most of the 14 new locations found in 2004-2006 were either remapped or had plant numbers estimated in 2015 surveys. Most of the six historical sites on San Miguel Island have also been resurveyed, and plants were also found at all of those resurveyed sites. We conclude that this criterion has been met.

• Downlisting Criterion 7: If declining, determine cause and reverse trend.

Status of achieving recovery criterion: The species has not been declining on either Santa Cruz or San Miguel Islands. Rather, it has been dramatically increasing, and many new sites have been found since the time of listing. We conclude that this criterion has been met.

The Recovery Plan identified three criteria for removing island bedstraw from the Federal List of Endangered and Threatened Plants (Service 2000, pp. 64-68):

• Delisting Criterion 1: Discover or establish five additional populations per island (San Miguel and Santa Cruz).

Status of achieving recovery criterion: Researchers have discovered 23 previously unknown sites on Santa Cruz Island. No new sites have been discovered or established on San Miguel Island. San Miguel Island lacks the extensive suitable habitat of Santa Cruz Island, and there may not be additional undiscovered populations; however, surveyed populations have increased in numbers of individuals. We conclude that this criterion has been met for Santa Cruz Island but not for San Miguel Island, but the criterion may not be possible for San Miguel Island.

• Delisting Criterion 2: No decline after downlisting for 10 years.

Status of achieving recovery criterion: We conclude that this criterion is not relevant since we have not downlisted the species.

• Delisting Criterion 3: All potential habitat surveyed.

Status of achieving recovery criterion: Currently, not every part of the north coast of Santa Cruz Island has been surveyed, nor have detailed surveys occurred everywhere on San Miguel Island or in potential habitat on the north coast of Santa Rosa Island. Additionally, historical interior sites have not been resurveyed sufficiently. We conclude that this criterion has not been met. However, this criterion may no longer be needed because the numbers of island bedstraw plants have increased substantially on the islands from which it is known.

The Recovery Plan identified six criteria for removing Santa Cruz Island dudleya from the Federal List of Endangered and Threatened Plants (Service 2000, pp. 64-68):

• Delisting Criterion 1: Maintain the existing population as stable with evidence of natural recruitment for a period of 20 years that includes the normal precipitation cycle.

Status of achieving recovery criterion: Data indicate that the population size is stable at between 40,000 and 200,000 plants estimated per survey over the last 25 years, with the last estimate of 120,000 in 2019. In 2019 a robust repeatable survey protocol was established, and baseline data have been collected to assess future trends. This criterion has been met.

• Delisting Criterion 2: Seed stored in CPC cooperating facilities.

Status of achieving recovery criterion: An abundance of recently collected seed is stored at the SBBG. This criterion has been met.

• Delisting Criterion 3: Seed germination and propagation techniques understood.

Status of achieving recovery criterion: While no specific work has been done with Santa Cruz Island dudleya, seed germination and plant propagation techniques are well understood for many other Dudleya species, including other closely related species in the same subgenus. We conclude that this criterion has been met.

• Delisting Criterion 4: Weed competition understood and managed.

Status of achieving recovery criterion: The vegetation of Santa Cruz Island is still changing since the complete removal of feral ungulates. Some aspects of the interactions of nonnative annual grasses and Santa Cruz Island dudleya were investigated more than 20 years ago, but little has been done recently. We conclude this criterion has not been met. However, Santa Cruz Island dudleya has not been observed to have been competitively impacted by weeds and is at least stable in population size at 40,000-200,000 individuals over the last 25 years, so while weeds may be a threat, they have not seemed to have had an impact on population stability.

• Delisting Criterion 5: Pig damage controlled.

Status of achieving recovery criterion: Pigs were completely removed from Santa Cruz Island by 2006, and substantial passive vegetation recovery has occurred. This criterion has been met.

• Delisting Criterion 6: Life-history research conducted.

Status of achieving recovery criterion: While originally planned, no additional life-history research has been conducted specifically on Santa Cruz Island dudleya since the time of listing. However, many life-history characteristics are similar throughout Dudleya and applicable to this species. The criterion is considered met through knowledge of the biology of similar species.

In the Recovery Plan, the overall recovery goal is to improve the status of the species such that the protections of the Act are no longer needed. Preliminary goals and objectives include stabilizing and protecting populations, conducting research, and reclassifying species to threatened (downlisting) when appropriate. The Recovery Plan criteria that generally apply to both of these species have been met. The Recovery Plan's unique recovery criteria for island bedstraw and Santa Cruz Island dudleya (Service 2000, pp. 64-68) are discussed above and summarized below.

Research and survey efforts have clarified the distribution, abundance, and habitat characteristics of island bedstraw and Santa Cruz Island dudleya. This information has resulted in a better understanding of the species' ecology and has shown an increase in the species' range, and numbers of sites and individuals for island bedstraw, and has shown population stability and increase in distribution for Santa Cruz Island dudleya.

Overall, the intent of the recovery criteria has been met in collaboration with our partners. TNC and NPS have provided protection and adaptive management of historical and recent sites. USGS, TNC, and others have provided survey evidence that the populations at these sites are stable or increasing over a number of years. TNC and NPS have coordinated to preserve the genetic diversity of both species by conservation banking of seeds in approved facilities. Both species are considered recovered without reliable seed germination and propagation techniques being developed. Therefore, we conclude that, based on the best available information, the intent of the recovery criteria in the Recovery Plan has been achieved and the recovery goal identified in the Recovery Plan has been met for both island bedstraw and Santa Cruz Island dudleya.

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. On July 5, 2022, the U.S. District Court for the Northern District of California vacated regulations that the Service (jointly with the National Marine Fisheries Service) promulgated in 2019 modifying how the Services add, remove, and reclassify threatened and endangered species and the criteria for designating listed species' critical habitat ( Center for Biological Diversity v. Haaland, No. 4:19-cv-05206-JST, Doc. 168 ( CBD v. Haaland ). As a result of that vacatur, regulations that were in effect before those 2019 regulations now govern species classification and critical habitat decisions. Our analysis for this proposal applied those pre-2019 regulations. However, given that litigation remains regarding the court's vacatur of those 2019 regulations, we also undertook an analysis of whether the proposal would be different if we were to apply the 2019 regulations. We concluded that the proposal would have been the same if we had applied the 2019 regulations. The analysis based on the 2019 regulations is included in the decision file for this proposal.

The Act defines an “endangered species” as a species that is in danger of extinction throughout all or a significant portion of its range and a “threatened species” as a species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act requires that we determine whether any species is an endangered species or a threatened species because of any of the following factors:

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

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

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

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

These factors represent broad categories of natural or human-caused actions or conditions that could have an effect on a species' continued existence. In evaluating these actions and conditions, we look for those that may have a negative effect on individuals of the species, as well as other actions or conditions that may ameliorate any negative effects or may have positive effects. We consider these same five factors (50 CFR 424.11(c) and (e)) when considering downlisting a species from endangered to threatened and when considering delisting a species.

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 species' expected response 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.” Because the decision in CBD v. Haaland vacated our 2019 regulations regarding the foreseeable future, we refer to a 2009 Department of the Interior Solicitor's opinion entitled “The Meaning of `Foreseeable Future' in Section 3(20) of the Endangered Species Act” (M-37021). That Solicitor's opinion states that the foreseeable future “must be rooted in the best available data that allow predictions into the future” and extends as far as those predictions are “sufficiently reliable to provide a reasonable degree of confidence in the prediction, in light of the conservation purposes of the Act.” Id. at 13.

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' 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 island bedstraw and Santa Cruz Island dudleya SSA reports document the results of our comprehensive biological review of the best scientific and commercial data regarding the status of the species, including an assessment of the potential threats to the species. The SSA reports do not represent our decision on whether the species should be proposed for removal from the List of Endangered and Threatened Plants (“delisted”). However, they provide the scientific basis that informs our regulatory decisions, which involve the further application of standards within the Act and its implementing regulations and policies. The following is a summary of the key results and conclusions from the island bedstraw and Santa Cruz Island dudleya SSA reports; the full SSA reports for both species can be found at Docket FWS-R8-ES-2022-0066 on https://www.regulations.gov and at https://ecos.fws.gov.

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

The SSA process can be categorized into three sequential stages. During the first stage, we evaluated the individual species' life-history needs. The next stage involved an assessment of the historical and current condition of the species' demographics and habitat characteristics, including an explanation of how the species arrived at its current condition. The final stage of the SSA involved making predictions about the species' responses to positive and negative environmental and anthropogenic influences. 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 decision.

In this discussion, we briefly review the biological condition of the species and their resources, and the threats that influence the species' current and future condition, in order to assess the species' overall viability and the risks to that viability.

Plants like the bedstraw, with functionally unisexual flowers, need flowers of opposite gender for successful seed set, requiring one or more pollinators. Seeds need to be able to survive until germination conditions are appropriate, and they need a stable location to germinate and grow. Larger plants also need stable locations for long-term survival. A sufficient amount of moisture is needed for all island bedstraw life stages, and some of this moisture may be provided by fog. Island bedstraw populations need suitable habitat that supports survival and reproduction of an adequate number of individuals with vital rates that maintain self-sustaining populations despite stochastic events. Overall, the species needs sufficiently resilient populations distributed across its range to withstand catastrophic events. Population sizes should be large enough so that the species has the ability to adapt to changing conditions.

At the time of listing, there were 19 known sites of island bedstraw, 13 on Santa Cruz Island and 6 on San Miguel Island. There may have been 44-133 or more plants on Santa Cruz Island and more than 470 on San Miguel Island, with an estimated 515-603 plants on the 2 islands combined.

After listing in 1997, from 2004 through 2006, significant efforts were made to survey Santa Cruz Island for island bedstraw. Of the 13 historical sites, 10 were surveyed, and no plants were found at 3 of those sites. An additional 14 new sites were discovered, expanding the distribution of sites to the west and east of the historical sites. At least 692-792 plants were counted at the historical sites, and at least 459 plants were counted at the new sites, for a total of at least 1,151-1,251 plants. No comparable surveys occurred on San Miguel Island; the only observations were counts at two sites in 1998 (McEachern et al. 2019b, pp. 14-16).

In 2015 on Santa Cruz Island and in 2017 on San Miguel Island, Wildlands Conservation Science (Lompoc, CA) used helicopter surveys to conduct rare plant surveys (Ball and Olthof 2017, entire; Ball et al. 2018, entire). Additional observations, not associated with helicopter surveys, were made on both islands. For the helicopter surveys conducted in 2015 on Santa Cruz Island, 28 sites were visited consisting of 9 new sites, the 17 sites surveyed in 2004-2006, and 2 previously unsurveyed historical sites. Additional sites discovered during the survey brought the total number of known sites to 36 (13 historical prelisting sites, 14 additional sites discovered 2004-2006, 9 sites in 2015 helicopter surveys), and the known geographical distribution of island bedstraw on the island eastward. Most sites were only photographed, but percent cover and area was estimated for level terraces at seven sites. And with an average plant canopy area derived from monitoring data, researchers estimated that those 7 sites had 8,421 plants. An additional observation in 2019 estimated another 1,000 or more plants at another terrace site.

The 2017 helicopter surveys also conducted on San Miguel Island did not reveal new sites. Three of the six historical sites were visited, and percent cover and area of island bedstraw were estimated for level terraces at those sites. Using the average plant canopy area, researchers estimated that there were 5,339 plants at the 3 sites. A fourth site was previously confirmed to be extant in 2014; the other two sites have not been surveyed but are also presumed to have extant plants.

On Santa Cruz Island, the total number of known island bedstraw sites has increased from 13 at the time of listing, to 27 at the time of the 2004-2006 surveys, to 36 after the 2015 helicopter surveys (Service 2021a, table 14, p. 37). On San Miguel Island, the number of known sites is six, which is the same as at the time of listing. Of the 36 total number of known sites on Santa Cruz Island, 28 are known to be extant based on recent helicopter surveys and observations (Service 2021a, table 13, figure 9, pp. 35-36); five are presumed extant (four sites had plants in the 2004-2006 surveys but were not surveyed thereafter, and one site has not been surveyed since before listing); and three sites are possibly extirpated (targeted surveys took place in 2004-2006, but sites were not relocated or mapped by the 2015 helicopter surveys). Similarly, of the six known sites on San Miguel Island, four are known to be extant based on the 2017 helicopter survey and 2014 observational data (Service 2021a, table 13, figure 10, pp. 35-36), and the remaining two are presumed extant (but have not been surveyed since before listing). There are no known possibly extirpated sites on San Miguel Island.

The current totals, therefore, are 33 known or presumed extant on Santa Cruz Island and 6 on San Miguel Island. The total estimated number of known individuals within those sites on both islands combined has increased from 512-603 before listing to at least 15,730 after recent helicopter surveys.

Currently, island bedstraw appears to have increasing abundance and distribution. It has shown demographic capacity for population growth at one site studied over a 10-year span and adaptive capacity by expansion beyond historically occupied areas into more diverse habitats ( e.g., from cliff faces to terraces above the cliffs, and movement into nonnative-dominated vegetation). The species also shows the ability to withstand catastrophic events because it is distributed on two islands, has more sites now than at the time of listing, and has gaps between groups of sites within islands.

In 1997, island bedstraw was listed as an endangered species due to effects (habitat alteration and herbivory) resulting from feral livestock grazing and trampling, and subsequent soil erosion (62 FR 40954-40974, July 31, 1997). By the time the Recovery Plan was signed in 2000, sheep had been removed from both Santa Cruz and San Miguel Islands, but their residual effects remained. No feral pigs occurred on San Miguel Island after 1900, and TNC and NPS initiated an 18-month program that removed all pigs from Santa Cruz Island by the end of 2006. In the 2009 5-year review, we determined that island bedstraw still met the definition of an endangered species based on the following threats: (1) soil loss and erosion resulting from years of feral pig rooting and sheep grazing, (2) loss of habitat to nonnative, invasive plants, (3) random naturally occurring events due to its limited distribution and small population size, and (4) effects from climate change.

The major threats to island bedstraw at the time of listing, feral livestock grazing, trampling, and resulting erosion, have largely been eliminated, which consequently also reduced the threats of small population size and nonnative vegetation identified at the time of the 2009 5-year review. Effects from climate change remain but are not to the level where we conclude that the species is in danger of extinction. We determined that overutilization, disease, predation (herbivory), and the inadequacy of existing regulatory mechanisms are not threats to island bedstraw, so we do not discuss them in detail in this proposed rule. For more information, see the island bedstraw SSA (Service, 2021a).

Currently, vegetation cover has increased significantly on Santa Cruz Island since the eradication of herbivores (Beltran et al. 2014, p. 7), leading to reduced erosion. This trend appears similar on San Miguel Island.

Nonnative invasive plants were not specifically identified as a threat for this species at the time of listing but were discussed in the 2009 5-year review. While the competitive ability of island bedstraw against nonnative plants is unknown, the species seems to be able to colonize areas dominated by relatively short nonnative annuals, such as the terrace at the “Bluffs East of Prisoners” site. Island bedstraw may also have an advantage because native perennials in general tend to be at an advantage over nonnatives at sites that are relatively more mesic (Corry 2006, p. 97), such as the north-facing cliffs, terraces, and slopes on the north coasts of Santa Cruz and San Miguel Islands where island bedstraw is found. Additionally, the loss of leaves by island bedstraw during dry summer conditions may give it another edge over nonnatives (Corry 2006, p. 185) by allowing it to survive drier soil conditions through dormancy.

On Santa Cruz Island, historical populations with known numbers of plants had 50 or fewer individuals, and 2004-2006 surveyed populations may have had hundreds of plants. While only a few of the 2015 surveyed sites have population estimates, these estimates are in the thousands of individuals, and it is likely that more of the unsurveyed sites also have large numbers of plants. These sites with hundreds or thousands of plants have a greater likelihood of future persistence than sites with fewer than 50 plants. The three possibly extirpated historical sites on Santa Cruz Island that could not be located during the most recent surveys (Service 2021b, table 6, p. 26) probably had small numbers of individuals (Service 2021b, table 4, p. 22 ). Two of those sites were in relatively interior locations and could have gone undetected because of poor location descriptions. Similarly, the third site, while coastal, is in an area of extremely dense vegetation and could also have been equally difficult to find. Assuming extirpation, we estimate that these sites are exceptions to the general trend of increasing plant numbers at sites and represent only 3 of the 36 Santa Cruz Island sites. San Miguel Island has demonstrated similar trends of increasing numbers of plants within sites, from historical numbers of 250 or less, to estimates of 1,000 or more plants observed during the 2016 surveys (Service 2021b, table 12, p. 34). The general trend of increasing plant numbers at sites suggests that the threat of random extinction of small populations has been reduced.

The northern Channel Islands lie off mainland Santa Barbara and Ventura Counties. Of the two counties, Santa Barbara County is the better model for assessing climate impacts on the species since the flora of the northern Channel Islands, in general, is considered to have more northern affinities (Raven and Axelrod, 1995, pp. 63-64). Annual average (National Oceanic and Atmospheric Administration (NOAA) National Centers for Environmental Information (NCEI) 2019a) and maximum (NOAA NCEI 2019b) temperatures for Santa Barbara County for 2014-2018 have been the highest recorded since 1895. Rainfall does not show such distinct trends. However, except for 2017, annual rainfall for 2011-2018 has been below the 1885-2018 mean (NOAA NCEI 2109c), with 2013 and 2015 being two of the five driest years since 1885.

These recent increases in annual average and maximum temperatures and lower annual rainfall do not seem to have adversely affected recent island bedstraw survivorship and expansion. The monitoring data at Pelican Bay (figure 13, McEachern et al. 2019b, p. 26) show an increase in the number of reproductive plants in 2014 compared to 2011. No sites are known to have been extirpated between 2004 and 2019. Spread from cliff locations to adjacent terraces has also been confirmed during that time period. It is unknown how further increases in temperature and decreases in rainfall may affect the species.

The threat of fire increases with increases in annual average and maximum temperatures and lower annual rainfall. Neither natural nor anthropogenic fires are as common on the northern Channel Islands as on the adjacent mainland (Carroll et al. 1993, pp. 75-78). Just four natural fires are known to have occurred on the northern Channel Islands in the last 165 years, none of which have affected island bedstraw sites. Changes in future climate may increase this risk; however, we have no evidence that natural wildfires will be such a serious threat in the future that listing continues to be warranted.

Resiliency describes the ability of populations to withstand stochastic disturbance. Resiliency is positively related to population size and growth rate and may be influenced by connectivity among populations. Currently, island bedstraw has populations that are increasing in numbers of individuals and spatial extent. Island bedstraw abundances have increased from 512-603 before listing to at least 15,730 currently, the largest recorded abundance. Individual sites are larger than they were at the time of previous surveys, and larger than at the time of listing. Observations show that populations have spread from cliffs to adjacent level terraces. The rate of growth appears to be positive, from both demographic research and observations of increasing areal extent at individual sites. At least 1,000 plants in half a hectare has been documented in an area that was known to have no plants 15 years earlier. Recent observations show this pattern repeating at other sites.

Representation describes the ability of a species to adapt to changing environmental conditions over time. It is characterized by the breadth of genetic and environmental diversity within and among populations. Island bedstraw has historically occupied different parts of the islands, from sea cliff faces to the interior of the islands. It is now colonizing terraces above the cliffs. Given how readily island bedstraw moves off the bluffs, onto flats, and into native and nonnative vegetation, the genetic breadth can be interpreted as sufficiently wide to occupy diverse niches. Finally, although the genetics of island bedstraw have not been similarly analyzed, the close relative G. catalinense ssp. acrispum has been shown to retain high genetic diversity after a ranching period with a similar grazing history (Riley et al. 2010, pp. 2020-2024) and occupies a similar range of habitats.

Redundancy describes the ability of a species to withstand catastrophic events. Redundancy is characterized by having sufficiently resilient populations distributed within the ecological settings of the species and across its range. Island bedstraw exhibits redundancy at two scales: across the northern islands and within each island where it occurs. First, it is distributed on two islands separated by a third, so the entire species is unlikely to be affected by any one catastrophic event. Second, more sites are known than at the time of listing on Santa Cruz Island, and population sizes are larger on both islands. Sites are distributed across the breadth of the northern shores of each island with gaps between groups of sites such that a single island catastrophe (like fire) would be unlikely to affect all sites at once.

The major threats to island bedstraw at the time of listing were feral livestock grazing, trampling, and the resulting erosion. These major threats are either no longer relevant or have been minimized. The threats of small population size and loss of habitat to nonnative, invasive plants identified at the time of the 2009 5-year review have also been reduced. Additionally, there have been no apparent negative effects since the 2009 5-year review that are attributable to temperature and precipitation patterns associated with projected climate change trends.

Currently, island bedstraw is increasing in abundance and distribution and expanding beyond historically occupied areas and into more diverse habitats ( e.g., from cliff faces to terraces above the cliffs and movement into nonnative-dominated vegetation), indicating increasing resiliency, representation, and general overall adaptive capacity. Additionally, with a distribution on two islands (separated by a third) and more sites now than at the time of listing with gaps between groups of sites within islands, a single island catastrophe would be unlikely to affect all sites at once. The catastrophic loss on one island would not affect the other islands, and the populations are spread out enough that there is some redundancy within islands.

The major remaining potential factor influencing island bedstraw population viability is climate change. Our current data do not show that the species is experiencing any significant effects from changing climate conditions.

Of the threats that have been discussed above, climate change remains the most reasonably foreseeable threat to persist and potentially affect island bedstraw. It is a potential catalyst of change for other threats and is expected to have multiple effects in the California Central Coast Region, including an increase in temperatures, changes in precipitation, sea level rise, and an increase in fire frequency (Langridge 2018, pp. 12-23). Fifty years is the evaluation timeframe for climate change because the best available information presented in the current integrated climate assessment for the Central California Coast forecast uses 2069 as its climate change analysis interval (Langridge 2018, pp. 12-23). The 50-year period integrates a wide amount of interannual variability in temperature and rainfall and contains typical drought cycles (NOAA NCEI 2019a, 2019b, 2019c). Sea level rise projections are from Griggs et al. 2017 (pp. 24-27), which is cited by Langridge 2018 (p. 24) as the latest California-focused sea level rise projections; Griggs et al. 2017 uses an 80-year timeframe.

We developed two future scenarios that capture the range of plausible effects to the species from a projected change in the factors influencing its viability over a 50-year period.

Future Scenario 1 summarizes effects of Representative Concentration Pathway (RCP) 4.5, and Future Scenario 2 summarizes effects of RCP8.5. The RCPs are based on alternate projections for climate change in the California Central Coast region based on Langridge (2018, pp. 12-22, 29-31) and Griggs et al. (2017, p. 27). RCP4.5 and RCP8.5 are described more fully in the SSA (Service 2021a, entire).

Under Future Scenario 1, the combination of increased temperature and increased rainfall support continued recruitment and expansion of island bedstraw over the next 50 years. Most vegetation is recovering island wide, and as it recovers, leaf litter depth and area of cover increase, as do subsurface roots. These factors protect the soil from direct impact and allow increased percolation of water into the soil. Surface flows are moderated, and erosion is reduced. Therefore, increasing rainfall does not substantially increase erosion, largely because most vegetation would benefit from the moderate additional rainfall and vegetation reduces the intensity of runoff. Moderate sea level rise could cause minor impacts from landslides on some Santa Cruz Island sites but not at the population level. If sea level rise is only a few feet, it will not directly impact many plants or sites because they are substantially higher in elevation. Because most sites are on relatively tough igneous rock, enough erosion will not occur to undermine and cause collapse of these coastal sites. Moreover, the negative effects of fire frequency on the species are not expected to increase, as vegetation flammability and ignition sources are not projected to increase. Few minor negative and some potential positive effects of climate change would occur under this future scenario, and sites are likely to persist while the species' abundance and range will continue to expand. Overall, Future Scenario 1 projects increases in abundance and expansion, which suggests resiliency would increase and representation and redundancy would remain stable for island bedstraw.

Under Future Scenario 2, during the next 50 years, temperatures are projected to increase over the current baseline even more than under Scenario 1, with rainfall also increasing over baseline but less than under Scenario 1. In addition, there is a projected increase in year-to-year variability with an increase in extreme dry events, drought conditions, and extreme rain events. The increase in extreme rain events would lead to flashier, more intense runoff.

Increased drying and drought events could lead to decreased soil moisture that will affect recruitment and adult survival, leading to less population expansion and possibly smaller increases in abundance, relative to Scenario 1. Rainfall events may increase the severity of runoff, which may dislodge or cover plants and lead to decreases in abundance. If conditions are severe enough, sites could be extirpated. The effects of sea level rise could be greater than in Scenario 1 for sites on sedimentary cliffs on the eastern end of the species' distribution on Santa Cruz Island. Undercutting from surf could increase landslides, eliminating some if not all plants in sites. Fire frequency and size could increase on Santa Cruz Island because of warmer temperatures, drier vegetation, windier conditions, increased lightning strikes, and increased visitor use over time that may lead to increased wildfire starts by the public. Fires could reduce abundance and eliminate sites. Overall, Future Scenario 2 projects decreases in abundance and expansion and potentially extirpation of sites, which suggests resiliency, representation, and redundancy could decrease for island bedstraw; however, given the improved habitat conditions for the species and increasing baseline distribution and abundance, we do not expect these threats to affect the species at the population level.

Under Future Scenario 1, changes in abundance and distribution of island bedstraw continue on their current positive trajectory, with increasing numbers and site expansion. Under Scenario 2, some sites may decline and possibly become extirpated. Decreased soil moisture and drought are likely to negatively affect the species because recruitment, survivorship, and the rate of expansion would be slower than under Future Scenario 1, reducing resiliency. Increased soil and shoreline erosion and fire would also negatively affect island bedstraw by killing individuals and degrading habitat, reducing representation and redundancy. Given the improved habitat conditions for the species and increasing baseline distribution and abundance, we do not expect threat levels under either future scenario to affect the island bedstraw at the species level.

Island bedstraw occurs on Santa Cruz and San Miguel Islands. At the time of listing, there were 19 known sites of island bedstraw, 13 on Santa Cruz Island and 6 on San Miguel Island. Currently, the number of sites known or presumed to be extant is 33 on Santa Cruz Island and 6 on San Miguel Island. The total estimated number of known individuals within those sites on both islands combined has increased from 512-603, at the time of listing, to at least 15,730, after recent helicopter surveys. This number (15,730) is likely an underestimate, because plant number estimates were not done at most sites during the helicopter surveys, but last had plant counts in the mid-2000s. Given the increase in the number of individuals at sites where plant number estimates were conducted during the helicopter surveys, the sites that were last counted in the mid-2000s likely have more individuals. The major threats to island bedstraw at the time of listing, feral livestock grazing, trampling, and resulting erosion, are either no longer relevant or have been minimized. The threats of small population size and nonnative vegetation identified at the time of the 2009 5-year review have also been minimized. Currently, island bedstraw is increasing in abundance and distribution. It has shown demographic capacity for population growth at one site studied over a 10-year span and adaptive capacity by expansion beyond historically occupied areas and into more diverse habitats ( e.g., from cliff faces to terraces above the cliffs and movement into nonnative-dominated vegetation). The species also shows the ability to withstand some catastrophic events with its distribution on two islands (separated by a third), having more sites now than at the time of listing, and gaps between groups of sites within islands.

Potentially negative effects of future climate change remain, and we developed two future scenarios that capture the range of plausible effects to the species from projected changes in the factors influencing viability over a 50-year period. Climate change is expected to have multiple effects in the California Central Coast Region, including an increase in temperatures, change in precipitation, sea level rise, and increase in fire frequency. Future Scenarios 1 and 2 summarize effects of RCP4.5 and RCP8.5, respectively, based on projections for climate change in the California Central Coast Region derived from Langridge (2018, entire). Under Future Scenario 1, changes in abundance and distribution of island bedstraw continue on their current positive trajectory, with increasing numbers and site expansion. Under Future Scenario 2, some sites may decline and possibly become extirpated. Decreased soil moisture and drought are likely to negatively affect the species because recruitment, survivorship, and the rate of expansion would be slower than under Future Scenario 1. Increased erosion and fire would also negatively affect island bedstraw by killing individuals and reducing habitat. Given the improved habitat conditions for the species and increasing baseline distribution and abundance, we do not expect threat levels under either future scenario to affect the species at the population level.

Cumulative and synergistic interactions are possible between the effects of climate change and the effects of other potential threats, such as small population size, fire, and nonnative plant invasion. Increases in temperature and changes in precipitation are likely to cause increases in nonnative grasses, which are abundant in island bedstraw habitat. Increased grass abundance has the potential to carry fire more readily, which could affect the geographically limited population of island bedstraw. Uncertainty about how different plant species will respond under climate change, combined with uncertainty about how changes in plant species composition would affect suitability of island bedstraw habitat, make projecting possible cumulative and synergistic effects of climate change on island bedstraw challenging.

Our draft post-delisting monitoring plans will provide guidelines for evaluating both species following delisting to detect substantial declines that may lead to consideration of re-listing to threatened or endangered. Changes in land use will still be subject to State and Federal environmental review.

The genus Dudleya is typically considered to be made up of three subgenera: Dudleya, Stylophyllum, and Hasseanthus, each of which at some time has been considered a distinct genus; Santa Cruz Island dudleya is in subgenus Hasseanthus.

Santa Cruz Island dudleya needs the right combination of position in soil, litter depth, and light to emerge from the seed and survive to and past the seedling stage. Seedlings and larger plants need seasonal soil moisture, light availability, and space to survive the dry season, reach a reproductive size, and successfully reproduce. The species, comprising a single population, needs a sufficiently broad distribution to adapt to changing environmental conditions and withstand catastrophic events. Finally, Santa Cruz Island dudleya needs a sufficient community of generalist pollinators to ensure effective pollination and seed set.

Santa Cruz Island dudleya is composed of one population and five subpopulations that occur in a general area of about 200 ha, although the total occupied area within that general area is about 13.7 ha (Schneider and Carson 2019, p. 10). The best information available suggests that, over the last 25 years, the population has fluctuated between at least 40,000 and 200,000 individuals and the current abundance is in the middle of that range (approximately 120,000 individuals). Past survey methods were not standardized, which limits our ability to confirm a definitive trend in abundance over time. However, the population at 120,000 is stable, and the most recent survey (Schneider and Carson 2019, entire) established robust survey methods that can be used in the future to detect changes in distribution and abundance.

At the time of listing, soil loss, herbivory by feral pigs ( Sus scrofa ), disturbance by pig rooting, and collecting for botanical or horticultural use were identified as threats to the species. The Recovery Plan identified the additional threats of competition from nonnative grasses, trampling by humans, and an increased risk of extinction from naturally occurring random events due to the species' limited distribution (Service 2000, p. 35). The 2009 5-year review also considered the effects of low genetic variability, climate change, and fire (Service 2009a, p. 12).

In the original listing, the source of soil loss is specified as the result of feral ungulate activities (62 FR 40954, July 31, 1997; p. 40966). All feral ungulates were removed from Santa Cruz Island by 2006 (McEachern et al. 2016, pp. 759-760), eliminating that source of soil loss. Vegetation cover has increased significantly on Santa Cruz Island since 2006 (Beltran et al. 2014, p. 7), leading to reduced erosion and mitigating this threat.

While Santa Cruz Island dudleya has a limited geographical range, it is very abundant where it is found. While Moran (1979) considered collecting to be a threat, McCabe (2004) did not. The species is in cultivation ( e.g., Trager 2004, entire) but is not often available for sale. It may be that the seasonal ephemerality of plants in the subgenus Hasseanthus makes Santa Cruz Island dudleya a plant not sought out for personal collections.

Trampling by humans is still a possible threat to the species, but it is unlikely to be a primary threat. TNC maintains a permit system for boaters that plan to land on TNC property (TNC 2020, p. 2), and offroad travel in the Fraser Point/Forney Cove area is prohibited to protect resources. TNC has erected signage in the area to reinforce the closure (Knapp pers. comm. 2021). Trespass occurs infrequently, and its effects on Santa Cruz Island dudleya are likely to be light, especially in grassland locations away from the immediate coast because trespassers are more likely to stay close to the ocean.

Klinger et al. (unpublished entire) investigated the effects of nonnative grasses on Santa Cruz Island dudleya density. While the study offered no data about trends in overall abundance, Santa Cruz Island dudleya density declined in study plots in which annual grass density and litter increased. The study occurred before a major increase in the nonnative annual grass Aegilops cylindrica and does not explain a seemingly steady abundance of Santa Cruz Island dudleya over the years despite that increase. These differing findings suggest that the interactions among nonnative annual grasses and Santa Cruz Island dudleya are complex.

Moran (1979, p. 1) lists the nonnative annual succulent Mesembryanthemum cystallinum (crystalline ice plant) as found with Santa Cruz Island dudleya at Fraser Point. McCabe (2004, p. 269) lists M. crystallinum as a threat to Santa Cruz Island dudleya but does not define how it is a threat. M. crystallinum can dominate coastal vegetation by increasing soil salinity to levels higher than that tolerated by some native plants (Vivrette and Muller 1977, pp. 315-317), but it is unknown if this situation is a threat to Santa Cruz Island dudleya. M. crystallinum has been reported to be periodically abundant in the coastal bluff scrub vegetation, cycling with Lasthenia gracilis (common goldfields), depending on rainfall and temperature combinations (Vivrette 2002, entire). Schneider and Carson (2019) do not report M. crystallinum as common in their surveys. The data do not indicate if M. crystallinum is at a low abundance in a cycle or if there has been a major change in vegetation that may have disrupted the cycle.

The Recovery Plan identified randomly occurring natural events as threats to Santa Cruz Island dudleya (Service 2000, p. 35) because the species has a single population with a limited distribution over a small range. The 2009 5-year review (Service 2009a, p. 12) specified low genetic variability (inferred by small population size), climate change, and fire and emphasized their importance as threats to the continued existence of Santa Cruz Island dudleya, given its single population and limited distribution.

Because Santa Cruz Island dudleya has a single population with a small range, the genetic variability and the resiliency of the species to human-caused or natural disasters may be low (Ellstrand and Elam 1993, pp. 232-237). No studies have been done of genetic variability in Santa Cruz Island dudleya, but the 2009 5-year review speculated that species might have inherently low genetic diversity. If so, this situation has likely been the case throughout the existence of this species, and there is no indication that this level of genetic variability is a threat to the species or contributes to low population resiliency or viability.

Santa Cruz Island lies off mainland Santa Barbara and Ventura Counties. Of the two counties, Santa Barbara County is the better model for assessing climate impacts on the species since the flora of the northern Channel Islands is generally considered to have similar affinities (Raven and Axelrod 1995, pp. 63-64). Annual average (NOAA NCEI 2019a) and maximum (NOAA NCEI 2019b) temperatures for Santa Barbara County for 2014-2018 have been the highest recorded since 1895. Rainfall does not show such distinct trends. However, except for 2017, annual rainfall for 2011-2018 has been below the 1885-2018 mean (NOAA NCEI 2109c), with 2013 and 2015 being two of the five driest years since 1885.

In general, increased temperature and decreased rainfall could negatively affect survival and reproduction of the species. However, these recent increases in annual average and maximum temperatures and lower annual rainfall (combined with the removal of nonnative herbivores) do not seem to have adversely affected Santa Cruz Island dudleya abundance or distribution. The most recent survey (Schneider and Carson 2019, p. 11) shows an increased overall abundance and an additional subpopulation (figure 5) since the last surveys of 2006 (McEachern et al. 2010, p. 12), although one subpopulation did decrease in abundance.

A new threat to the species may be sea level rise. Sea level rise has been slow over the 20th century but has accelerated and is expected to keep accelerating (Sievanen et al. 2018, pp. 16-18). Sea level is expected to rise 0.4 to 1.1 m (16-43 in) by 2100 (Griggs et al. 2017, pp. 24-27). Sea level rise could affect Santa Cruz Island dudleya in two ways. First, some plants are close enough to the ocean that they can be directly impacted and dislodged by surf action. However, most plants are high enough up on the marine terrace that direct impacts of the surf would not affect them. Second, rising sea level and larger waves could undercut the sea cliffs and bluffs, causing slumps and landslides, and disturbing or destroying whole groups of plants. Most plants, however, are sufficiently inland that they would not be affected.

Neither natural nor anthropogenic fires are as common on the northern Channel Islands as on the adjacent mainland (Carroll et al. 1993, pp. 82-85). Just four natural fires have been known to occur on the northern Channel Islands in the last 165 years. More human-caused fires, mostly from machinery operation or uncontrolled campfires, have occurred. Campfires are prohibited in Channel Islands National Park, but they occasionally happen on isolated beaches on TNC property on Santa Cruz Island (Knapp pers. comm. 2020), and clandestine prohibited smoking is frequent. Three human-caused brush fires have occurred on Santa Cruz in the last 15 years: a vehicle-caused fire in 2007 (Knapp pers. comm. 2020), a biomass reduction burn escape in 2018 (Knapp pers. comm. 2020), and a construction-related fire in 2020 (KEYT 2020).

While no fires are known to have impacted the species, fire has been and remains a concern for land managers (Knapp pers. comm. 2020). Passive restoration after removal of feral ungulates (Beltran et al. 2014, entire) has increased fuel loads, and the results of a fire could be severe. With five distinct subpopulations across different vegetation types, the chance of a fire causing the extinction of the entire population of the species is reduced. However, each subpopulation is still within 400 m of another, which is relatively close in the event of a wind-driven wildfire.

Resiliency describes the ability of populations to withstand stochastic events. Resiliency is positively related to population size and growth rate and may be influenced by connectivity among populations. Recent research and survey efforts have shown Santa Cruz Island dudleya is at least stable in population size at 40,000-200,000 individuals over the last 25 years with an increase in distribution (Schneider and Carson 2019, entire).

Currently, the single Santa Cruz Island dudleya population appears to have no trend of increasing or decreasing abundance, but the lack of standardized surveys makes it difficult to draw conclusions about changes in species abundance and distribution. Additional surveys over an appropriate time span and area are needed to document changes in abundance and further changes in distribution.

Threats to the species identified at listing have been removed, including soil loss, herbivory by feral pigs, disturbance by pig rooting, and collecting for botanical or horticultural use (62 FR 40954, July 31, 1997; p. 40959). We have found no evidence to show that trampling by humans or low genetic variability are currently affecting abundance, and resiliency is not increasing or decreasing. Remaining potential threats include competition from nonnative grasses, climate change, and fire. These threats may affect sparsely vegetated areas, suitable temperatures, and adequate soil moisture/rainfall needed for survival and reproduction, thereby decreasing the abundance and distribution of Santa Cruz Island dudleya. However, except for negative effects of nonnative grasses (Klinger unpublished entire), the effects of these factors on resiliency have not been studied, but they do not appear to be currently adversely affecting the species.

Representation describes the ability of a species to adapt to changing environmental conditions over time. It is characterized by the breadth of genetic, phenotypic, and ecological diversity within and among populations. No genetic analysis has been conducted to reveal the genetic diversity within Santa Cruz Island dudleya compared to other Dudleya, especially other members of subgenus Hasseanthus. Santa Cruz Island dudleya is limited to a small area, but within that area, plants are growing in a variety of combinations of distance from the ocean, substrate type, and vegetation type, which may reflect some amount of adaptive capacity within the population. It is unknown whether representation has changed for this species since it was first described.

Redundancy describes the ability of a species to withstand catastrophic events. Redundancy is characterized by having multiple, sufficiently resilient populations distributed within the ecological settings of the species and across its range. Santa Cruz Island dudleya has inherently low redundancy as a narrow endemic with only a single population in a relatively small geographic range. However, there are physical gaps between subpopulations, and the subpopulations occur in different vegetation types that could carry fire differently. Subpopulations also occur at different elevations, and some are protected from extreme wave events. Although germinable seeds are found in natural soil samples, the amount of seed in the natural soil seed bank is unknown (Wilken 1996, p. 25). Redundancy is somewhat bolstered by a high number of seeds that have recently been seed-banked at the SBBG (Service 2000, table 3, p. 25).

Additionally, an active grant issued under section 6 of the Act (Schneider 2017, pp. 4-6, 13) calls for bulking that banked seed (in progress) and establishing two new “populations” on Santa Cruz Island (planned but delayed because of the Covid-19 pandemic). These activities will continue into 2023 with additional NPS funding (McEachern et al. 2019a, pp. 9, 11).

Several major threats to Santa Cruz Island dudleya identified at the time of listing, including soil loss, herbivory by feral pigs, and disturbance by pig rooting, have been removed or are no longer occurring. Collecting for botanical and horticultural use and trampling by humans also no longer pose threats to the species due to controls on access. Nonnative plants continue to occur with the species and do not seem to have affected population size, although no recent study on the specific effects of particular nonnatives or how changes in the nonnative assemblage might alter those effects has been undertaken. The threat of small population size still exists, as does concern about climate change and fire, but since the 2009 5-year review, there is no evidence that these potential threats have affected the species.

Santa Cruz Island dudleya abundance is apparently not increasing or decreasing in an obvious way, but data over time are lacking. Recent research and survey efforts have shown Santa Cruz Island dudleya is at least stable in population size over the last 25 years with an increase in distribution (Schneider and Carson 2019, entire).

Some amount of adaptive capacity is demonstrated in the variation in vegetation types and elevation where Santa Cruz Island dudleya is found. While the elevational range seems small and vegetation differences may seem negligible if gauged simply by absolute plant height, the locations where individuals of the species grow are remarkably varied. At the lowest elevations, the plants are in open native forb scrub that are likely subjected to relatively high amounts of salt spray. Soils here are influenced by the wind and are somewhat rocky. We suspect that here the primary stressors on the plants are from the physical environment. By contrast, higher up on the terraces, plants are in dense nonnative grassland with deeper soil that is less affected by salt spray. Given how dense the grasses are, we suspect that the primary stressor to the species must be competition. The two habitats grade into each other at some sites. In both situations, the species seems to be doing fine, and robust plants are showing good reproductive effort. The adaptability of this plant through disparate habitat zones is similar to a large species of tree capable of growing in open deserts or savanna to dense forests with similar-sized trees. We suspect that there must be quite a bit of phenotypic plasticity or genetic variability (adaptive capacity) that lets the species do well in such different conditions.

With only one population, redundancy is inherently low, but that issue may be mitigated somewhat by the diversity of the locations in which the species occurs, the presence of a seed bank, and the limited potential and extent of the most likely catastrophic threat. The most likely potential catastrophic threat to the species is fire. Fire has affected some mainland Dudleya species dramatically, while others seem to endure little mortality from being burned. We do not have specific fire data for Santa Cruz Island dudleya. While fire could be carried in areas where it occurs in dense grass, lower elevation areas are so open that fire is unlikely to spread there, so there is redundancy for the species, even over its small geographic range.

Of the threats that have been discussed above, climate change remains the most reasonably foreseeable to persist and potentially affect Santa Cruz Island dudleya. It is a potential catalyst of change for other threats and is expected to have multiple effects in the California Central Coast Region, including an increase in temperatures, change in precipitation, sea level rise, and increase in fire frequency (Langridge 2018, pp. 12-23). Fifty years is the evaluation timeframe for climate change because the best available information presented in the current integrated climate assessment for the Central California Coast forecast uses 2069 as its climate change analysis interval (Langridge 2018, pp. 12-23). The 50-year period integrates a wide amount of interannual variability in temperature and rainfall and contains typical drought cycles (NOAA NCEI 2019a, 2019b, 2019c). Sea level rise projections are from Griggs et al. 2017 (pp. 24-27), which is cited by Langridge 2018 (p. 24) as the latest California-focused sea level rise projections; Griggs et al. 2017 uses an 80-year timeframe.

We developed two future scenarios that capture the range of plausible effects to the species from projected changes in the factors influencing its viability over a 50-year period. Future Scenario 1 summarizes effects of RCP4.5, and Future Scenario 2 summarizes effects of RCP8.5. The RCPs are alternate projections for climate change in the California Central Coast Region based on Langridge (2018, pp. 12-22, 29-31) and Griggs et al. (2017, p. 27). Under Future Scenario 1 (RCP scenario 4.5 for climate change), the combination of increased temperature and rainfall continue over the next 50 years but not at levels anticipated to affect current levels of recruitment and survivorship. Moderate sea level rise could cause minor impacts from coastal bluff undercutting at the lowest elevation sites. Under RCP4.5, anticipated sea level rise is less than 1 m, which is less likely to cause damage than the sea level rise under RCP8.5. Negative effects of fire frequency on the species are not expected to increase, as vegetation flammability and ignition sources are not projected to increase. Because there are few negative effects of climate change under RCP4.5, the population is likely to maintain viability, if not expand. Overall, under Scenario 1, we project stability or increases in abundance and distribution, which suggests resiliency, representation, and redundancy would remain similar to the current condition for Santa Cruz Island dudleya.

Under Future Scenario 2 (RCP scenario 8.5 for climate change), temperature and rainfall increase, with fewer, more intense rain events, with a net result that soil moisture decreases over the next 50 years. The decreased soil moisture affects recruitment and adult survival, leading to decreases in expansion, and possibly abundance. If conditions are severe enough, subpopulations could be extirpated. The effects of competition with nonnative annual grasses will increase with rising temperatures and likely affect recruitment and expansion of the species. The effects of sea level rise could be substantial for plants on coastal bluffs. Undercutting from surf and erosion from episodic rainfall could increase the occurrence of landslides, eliminating some if not all plants on coastal bluffs. Fire frequency and size could increase because of warmer temperatures, drier vegetation, windier conditions, increased lightning strikes, and increased visitor use over time due to increases in human population. Fires could reduce abundance and distribution of the species. Overall, under Scenario 2, we project a decrease in abundance and a reduced rate of expansion, and potentially the extirpation of subpopulations, which suggests resiliency, representation, and redundancy could decrease for Santa Cruz Island dudleya. Given the improved habitat conditions for the species and apparently stable baseline distribution and abundance, we do not expect threat levels under either future scenario to affect the species at the population level.

Under Future Scenario 1, maintenance of recruitment and survivorship continue over the next 50 years. Because few negative effects of climate change are expected under Scenario 1, the population is likely to maintain viability, if not expand. Overall, Scenario 1 predicts little or no change in abundance and distribution, which suggests resiliency, representation, and redundancy would remain comparable to current levels for Santa Cruz Island dudleya. Under Scenario 2, decreases in abundance and reduced geographic expansion and potentially extirpation of subpopulations could occur, which suggests resiliency, representation, and redundancy could decrease for Santa Cruz Island dudleya. Given the improved habitat conditions for the species and apparently stable baseline distribution and abundance, we do not expect threat levels under either future scenario to affect the species at the population level.

Santa Cruz Island dudleya is composed of one population and five subpopulations that occur in a total occupied area of 13.7 ha in a general area of about 200 ha (Schneider and Carson 2019, p. 10) on the westernmost tip of Santa Cruz Island. Over the last 25 years, the population has fluctuated between at least 40,000 and 200,000 individuals, and abundance is currently approximately 120,000 individuals.

Several major threats to Santa Cruz Island dudleya identified at the time of listing have been removed or are no longer occurring. Collecting for botanical and horticultural use and trampling by humans also no longer pose threats to the species due to controls on access. Nonnative plants continue to occur with the species. The risk associated with small population size still exists, as does concern about climate change and fire, but since the 2009 5-year review, there is no evidence that these risk factors have affected the species. Santa Cruz Island dudleya abundance is apparently not increasing or decreasing in an obvious way, nor is resiliency increasing or decreasing. Some amount of representation is demonstrated in variation in vegetation types and elevation where Santa Cruz Island dudleya is found. Redundancy is inherently low with only one population, but that issue may be mitigated somewhat by the diversity of the locations in which the species occurs and the presence of a seed bank, and the limited potential and extent of wildfire. We do not have specific fire data for Santa Cruz Island dudleya. While fire could be carried in areas where it occurs in dense grass, lower elevation areas are so open that fire is unlikely to spread there, so there is redundancy for the species, even over its small geographic range.

Under Future Scenario 1 (RCP scenario 4.5 for climate change), the combination of increased temperature and rainfall continue over the next 50 years but not at levels anticipated to affect current levels of recruitment and survivorship. Moderate sea level rise could cause minor impacts from coastal bluff undercutting at the lowest elevation sites. The effects of fire on the species are not expected to increase. Because few negative effects of climate change are expected under RCP4.5, the population is likely to maintain viability, if not expand. Overall, under Scenario 1, we project stability or increases in abundance and distribution, which suggests resiliency, representation, and redundancy would remain similar to the current condition for Santa Cruz Island dudleya.

Under Future Scenario 2 (RCP scenario 8.5 for climate change), temperature and rainfall increase, with fewer, more intense rain events, with a net result that soil moisture decreases (due to drought) over the next 50 years. The decreased soil moisture affects recruitment and adult survival, leading to decreases in expansion, and possibly abundance. If conditions are severe enough, subpopulations could be extirpated. The effects of competition with nonnative annual grasses will increase and likely affect recruitment and expansion of the species. The effects of sea level rise could be substantial for plants on coastal bluffs. Undercutting from surf and erosion from episodic rainfall could increase the occurrence of landslides, eliminating some if not all plants on coastal bluffs. Fire frequency and size could increase because of warmer temperatures, drier vegetation, windier conditions, increased lightning strikes, and increased visitor use over time with increases in the human population. Fires could reduce abundance and distribution of the species. Overall, under Scenario 2, we project a decrease in abundance and a reduced rate of expansion, and potentially the extirpation of subpopulations, which suggests resiliency, representation, and redundancy could decrease for Santa Cruz Island dudleya. Given the improved habitat conditions for the species and apparently stable baseline distribution and abundance, we do not expect threat levels under either future scenario to affect the species at the population level.

Cumulative and synergistic interactions are possible between the effects of climate change and the effects of other potential threats, such as small population size, fire, and nonnative plant invasion. Increases in temperature and changes in precipitation are likely to cause increases in nonnative grasses, which are abundant in Santa Cruz Island dudleya habitat. Increased grass abundance can possibly more readily carry fire, which could affect the geographically limited population of Santa Cruz Island dudleya. Uncertainty about how different plant species will respond under climate change, combined with uncertainty about how changes in plant species composition would affect suitability of Santa Cruz Island dudleya habitat, make projecting possible cumulative and synergistic effects of climate change on Santa Cruz Island dudleya challenging.

We note that, by using the SSA framework to guide our analysis of the scientific information documented in the SSA report, we have not only analyzed individual effects on each of the species, but we have also analyzed their potential cumulative effects. We incorporate the cumulative effects into our SSA analysis when we characterize the current and future condition of the species. 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 the SSA framework considers not just the presence of the factors, but to what degree they collectively influence risk to the entire species, our assessment integrates the cumulative effects of the factors and replaces a standalone cumulative effects analysis.

Our draft post-delisting monitoring plan will provide guidelines for evaluating both species following delisting to detect substantial declines that may lead to consideration of re-listing to threatened or endangered. Changes in land use will still be subject to State and Federal environmental review.

Island bedstraw and Santa Cruz Island dudleya are both listed as State Rare by the State of California under the Native Plant Protection Act of 1977 (Fish and Game Code chapter 10, sections 1900-1913) and the California Endangered Species Act of 1984 (California Code of Regulations, title 14, chapter 6, sections 783.0-787.9; Fish and Game Code chapter 1.5, sections 2050-2115.5) and so they receive special considerations for their protection by the State of California under the California Environmental Quality Act (CEQA) for California permitted projects on private TNC land. The official California listing of endangered and threatened species is contained in the California Code of Regulations, title 14, section 670.5.

Island bedstraw is listed as 1B.2 by the California Native Plant Society (CNPS), meaning it is considered rare, threatened, or endangered in California or elsewhere and moderately threatened in California. Santa Cruz Island dudleya is listed as 1B.1 by the California Native Plant Society (CNPS), meaning it is considered rare, threatened, or endangered in California or elsewhere and seriously threatened in California. A cooperative relationship exists between the California Department of Fish and Wildlife—California Natural Diversity Database (CNDDB) (the State) and CNPS. The “threatened” category means two different things in the CNPS rankings. The first “threatened category” (“considered rare, threatened, or endangered in California or elsewhere”) refers to a government agency ( e.g., Service, CDFW) or nongovernmental organization (NGO) ( e.g., CNPS, NatureServe) having formally declared a plant in some sense to be rare, threatened, or endangered. The second threatened category (“moderately threatened in California” for bedstraw and “seriously threatened in California” for dudleya) are estimates at the time of listing (by CNPS or CDFW) about the degree to which the species is under threat (in the sense that something might harm the species). They have different ranking systems for rare plants but work together on them. Because of the efforts of the CNDDB program and CNPS to bring attention to rare plants through these parallel ranking systems, these plants receive some attention via the CEQA and the National Environmental Policy Act (CNDDB and CNPS, 2020).

We evaluated whether any existing regulatory mechanisms or other voluntary conservation efforts may have ameliorated any of the threats acting on island bedstraw and Santa Cruz Island dudleya. All of the land on which both species occur is managed by TNC or NPS for conservation of unique island species and habitats. The most significant single action has been the elimination of feral ungulates and feral pigs by TNC and NPS, as discussed above. The elimination of feral ungulates and feral pigs has eliminated the major sources of soil loss, habitat alteration, and herbivory affecting the species. This effort has resulted in passive restoration of the vegetation. It is likely that the positive effects of the feral ungulate and feral pig removal will continue into the future.

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species meets the definition of an endangered species or a threatened species. The Act defines 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 an endangered species or a threatened species because of any of the following factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) The inadequacy of existing regulatory mechanisms; or (E) Other natural or manmade factors affecting its continued existence.

Through this proposed rule, we have assessed the section 4(a)(1) factors by evaluating the best scientific and commercial information available regarding the past, present, and future threats faced by island bedstraw. We have found that the major threats to island bedstraw at the time of listing, feral livestock grazing (Factor A), trampling (Factor A), and the resulting erosion (Factor A), have either been removed or have been minimized. The threats of risk from small population size (Factor E) and loss of habitat to nonnative invasive plants (Factor A) identified in the 2009 5-year review have also been minimized.

At the time of listing, there were 19 known sites of island bedstraw, 13 on Santa Cruz Island and 6 on San Miguel Island. Currently, the number of sites known or presumed to be extant has grown to 33 on Santa Cruz Island and continues at 6 on San Miguel Island. The total estimated number of known individuals within those sites on both islands combined has increased from 512-603 before listing to at least 15,730. Currently, island bedstraw is increasing in abundance and distribution. It has shown demographic capacity for population growth and adaptive capacity by expansion beyond historically occupied areas into more diverse habitats ( e.g., from cliff faces to terraces above the cliffs and movement into nonnative-dominated vegetation), indicating increasing resiliency, representation, and generally overall adaptive capacity. The species also shows the ability to withstand catastrophic events because it is distributed on two islands, has more sites now than at the time of listing, and has gaps between groups of sites within islands. A single island catastrophe would be unlikely to affect all sites at once.

Although climate change (Factor E) has had no apparent effects since the 2009 5-year review, the potentially negative effects of climate change remain and may still impact the species, but such impacts are not currently causing the species to be in danger of extinction. The best available information indicates that overutilization (Factor B), disease (Factor C), predation (herbivory) (Factor C), and the inadequacy of existing regulatory mechanisms (Factor D) are not currently affecting the species throughout its range. The existing regulatory mechanisms will remain in place to ensure the continued persistence of island bedstraw occurrences and suitable potential habitat even if the species is delisted and protections under the Act are removed.

All of the occurrences of island bedstraw are on Federal and private lands that are protected and managed for conservation by the NPS and TNC. Both NPS and TNC have natural resource conservation as part of their mission. For example, the mission of TNC is to conserve the lands and waters on which all life depends. The TNC vision is a world where the diversity of life thrives and people act to conserve nature for its own sake and its ability to fulfill our needs and enrich lives. The NPS preserves unimpaired the natural and cultural resources and values of the NPS System for the enjoyment, education, and inspiration of this and future generations. The NPS cooperates with partners to extend the benefits of natural and cultural resource conservation and outdoor recreation throughout this country and the world. Thus, after assessing the best available information, we conclude that island bedstraw is not currently in danger of extinction throughout all of its range and, therefore, does not meet the definition of an endangered species.

In order to assess whether the species is likely to become in danger of extinction within the foreseeable future, we evaluated any remaining future threats. The major remaining potential threat influencing island bedstraw population viability in the future is climate change. Future climate change is expected to have multiple effects in the California Central Coast Region, including increases in temperatures, changes in precipitation, sea level rise, and increases in fire frequency (Langridge 2018, pp. 12-23). Fifty years is the evaluation timeframe for climate change because the best available information presented in the current integrated climate assessment for the Central California Coast forecast uses 2069 as its climate change analysis interval (Langridge 2018, pp. 12-23). The 50-year period integrates a wide amount of interannual variability in temperature and rainfall and contains typical drought cycles (NOAA NCEI 2019a, 2019b, 2019c). Sea level rise projections are from Griggs et al. 2017 (pp. 24-27), which is cited by Langridge 2018 (p. 24) as the latest California-focused sea level rise projections; Griggs et al. 2017 uses an 80-year timeframe.

We developed two future scenarios that capture the range of plausible effects to the species from projected changes in factors influencing viability over a 50-year period. Future Scenario 1 summarizes effects of RCP4.5, and Future Scenario 2 summarizes effects of RCP8.5 projections for climate change in the California Central Coast Region based on Langridge (2018, entire). Under Future Scenario 1, changes in abundance and distribution of island bedstraw continue on their current positive trajectory, with increasing numbers and site expansion. Under Future Scenario 2, some sites may decline and possibly become extirpated. Decreased soil moisture and drought are likely to negatively affect the species because recruitment, survivorship, and the rate of expansion would be lower. Increased erosion and fire would also negatively affect island bedstraw by killing individuals and reducing habitat. Negative impacts to individuals may occur under RCP8.5 but given the current improvement in habitat and increases in distribution and abundance, we do not think that the impacts will rise to a population level such that the species is likely to become endangered in the foreseeable future throughout its range. Therefore, the currently predicted changes in climate do not indicate that the species may become endangered due to those changes in the foreseeable future throughout its range. Thus, after assessing the best available information, we conclude that island bedstraw is not currently in danger of extinction or likely to become so within the foreseeable future throughout all of its range.

Through this proposed rule, we have assessed the section 4(a)(1) factors by evaluating the best scientific and commercial information available regarding the past, present, and future threats faced by Santa Cruz Island dudleya. We have found that the major threats to Santa Cruz Island dudleya identified at the time of listing have either been removed or have been minimized, due to the removal of feral pigs from Santa Cruz Island by NPS. Those prior threats included soil loss (Factor A), herbivory by feral pigs (Factor A), and disturbance by pig rooting (Factor A). The threats of collecting for botanical and horticultural use (Factor B) and trampling by humans (Factor A) also have been reduced by conservation and protection measures implemented by NPS and no longer appear to pose threats to the species. At the time of listing, nonnative plants (Factor A) as a whole were considered a threat to island native plant species in general, though there have been no recent studies of the effects of individual nonnative species or of the shifting composition of nonnatives on the persistence of Santa Cruz Island dudleya. However, non-native plants are not considered to be a concern as they were at the time of listing because the species is stable. The threats presented by the risk of small population size (Factor E), climate change (Factor E), and fire (Factor E) still exist, but since the 2009 5-year review there is no evidence that these threats have affected Santa Cruz Island dudleya. We determined that disease (Factor C), predation (herbivory) (Factor C), and the inadequacy of existing regulatory mechanisms (Factor D) are not currently affecting Santa Cruz Island dudleya throughout its range. The existing regulatory mechanisms in place ensure the continued persistence of Santa Cruz Island dudleya occurrences and suitable potential habitat even if the species is delisted and protections under the Act are removed; the single occurrence is on private land and is protected and managed for conservation by TNC. Thus, after assessing the best available information, we conclude that Santa Cruz Island dudleya is not currently in danger of extinction throughout all of its range and, therefore, does not meet the definition of an endangered species.

In order to assess whether the species is likely to become in danger of extinction within the foreseeable future, we evaluated any remaining future threats. Similar to island bedstraw, as discussed above, the major remaining potential factor influencing Santa Cruz Island dudleya viability in the future is climate change. Santa Cruz Island dudleya occurs with nonnative plants (Factor A), which are still considered a threat, though there have been no comprehensive studies that project the future effects of individual nonnative species or of the shifting composition of nonnatives on the persistence of Santa Cruz Island dudleya. However, non-native plants are not considered to be a concern as they were at the time of listing because the species is projected to be either increasing or stable in the future. The threats presented by the risk of small population size (Factor E), climate change (Factor E), and fire (Factor E) may continue into the future, but since the 2009 5-year review, there is no evidence that these threats have significantly affected Santa Cruz Island dudleya and we do not think this will change in the foreseeable future. Negative impacts to individuals may occur under climate change RCP8.5 but given the improvement in habitat conditions and apparent baseline population stability, we find that the impacts will not likely rise to a population level such that the species would be likely to become endangered in the foreseeable future. Therefore, the currently predicted changes in climate do not indicate that the species may become endangered due to those changes in the foreseeable future.

Thus, after assessing the best available information, we conclude that Santa Cruz Island dudleya is not currently in danger of extinction or likely to become so within the foreseeable future throughout all of its range.

Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range. Since we determined that neither species warrants continued listing as endangered or threatened throughout their ranges, we proceed to evaluating whether the species are threatened or endangered in a significant portion of their range—that is, whether there is any portion of the species' range for which both (1) the portion is significant and (2) the species is in danger of extinction 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 island bedstraw and Santa Cruz Island dudleya, we choose to address the status question first. We consider information pertaining to the geographic distribution of the species and the threats that the species faces to identify any portions of the range where the species may be threatened or endangered.

For island bedstraw, we considered whether the threats are geographically concentrated in any portion of the species' range at a biologically meaningful scale. Island bedstraw consists of 33 sites on Santa Cruz Island and 6 sites on San Miguel Island where each site is treated as a separate population. The total estimated number of known individuals is at least 15,730 after recent helicopter surveys occurred in a general area of about 6,000 ha (15,000 acres), although the total occupied area within that general area is much less (has not been estimated). We examined the following threats to island bedstraw: feral livestock grazing, trampling, erosion, small population size, and climate change including cumulative effects.

We found that the major threats to island bedstraw at the time of listing, feral livestock grazing, trampling, and resulting erosion, have largely been eliminated on both Santa Cruz and San Miguel Islands. The elimination of these threats also minimized the threats of small population size and nonnative vegetation on both islands. The major remaining potential factor influencing island bedstraw population viability is climate change. Our current analysis does not show that the species is experiencing any significant effects from changing climate conditions in any of the populations on either island, or that the species will in the foreseeable future. We did not find any biologically meaningful portion of island bedstraw's range where the condition of the species differs from its condition elsewhere in its range such that the status of the species in that portion differs from any other portion of the species' range either now or in the foreseeable future. Therefore, there is no difference in the status of the species in any portion of the range because we have determined that the threat of climate change is acting on the species evenly throughout the range now and in the foreseeable future.

Thus, there are no portions of the species' range where the species has a different status from its rangewide status. Therefore, no portion of the species' range 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.

Two court decisions ( Desert Survivors v. U.S. Department of the Interior, 321 F. Supp. 3d 1011, 1070-1074 (N.D. Cal. 2018) and Center for Biological Diversity v. Jewell, 248 F. Supp. 3d 946, 959 (D. Ariz. 2017)) held that aspects of the definition of “significant” in the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (“Final Policy”; 79 FR 37577, July 1, 2014), are invalid. However, in reaching our conclusion regarding island bedstraw, we did not need to consider whether any portions of the range are significant. Therefore, this finding does not conflict with the courts' holdings regarding the definition of “significant.”

Santa Cruz Island dudleya occurs in a general area of about 200 ha, although the total occupied area within that general area is about 13.7 ha (Schneider and Carson 2019 p. 10). The area can be divided into five sites or subpopulations, each within 400 m of another, that function as a single, contiguous population. Therefore, according to the definition of the California Natural Diversity Database (CNDDB 2018 p. 3), these sites comprise a single occurrence. Previous work on gene flow in a population of another member of the subgenus Hasseanthus, Dudleya multicaulis (Marchant et al. 1998, pp. 217-219) that is similarly dispersed, suggests that all D. nesiotica subpopulations probably comprise a single mixing population. Thus, due to being a narrow endemic that functions as a single, contiguous population and occurs within a very small area, there is no biologically meaningful way to break the limited range of Santa Cruz Island dudleya into notable portions. This means that no portions of the species' range have a different status from its rangewide status. 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 any significant portion of its range.

As explained above for our finding regarding island bedstraw, this finding does not conflict with the courts' holdings in Desert Survivors v. U.S. Department of the Interior, 321 F. Supp. 3d 1011, 1070-1074 (N.D. Cal. 2018), and Center for Biological Diversity v. Jewell, 248 F. Supp. 3d. 946, 959 (D. Ariz. 2017) because, in reaching this conclusion, we did not need to consider whether any portions are significant and therefore did not apply the aspects of the Final Policy's definition of “significant” that those court decisions held were invalid.

Our review of the best scientific and commercial data available indicates that island bedstraw and Santa Cruz Island dudleya do not meet the definition of endangered species or threatened species in accordance with sections 3(6) and 3(20) of the Act. In accordance with our regulations at 50 CFR 424.11(e)(2), Island bedstraw and Santa Cruz Island dudleya have recovered. Therefore, we propose to remove island bedstraw and Santa Cruz Island dudleya from the Federal List of Endangered and Threatened Plants.

This proposed rule, if made final, would revise 50 CFR 17.12(h) by removing island bedstraw and Santa Cruz Island dudleya from the Federal List of Endangered and Threatened Plants. The prohibitions and conservation measures provided by the Act, particularly through sections 7 and 9, would no longer apply to these species. Federal agencies would no longer be required to consult with the Service under section 7 of the Act in the event that activities they authorize, fund, or carry out may affect island bedstraw and Santa Cruz Island dudleya. No critical habitat is designated for island bedstraw or Santa Cruz Island dudleya, so this rulemaking action would have no effect on 50 CFR 17.96.

Section 4(g)(1) of the Act requires us, in cooperation with the States, to implement a monitoring program for not less than 5 years for all species that have been delisted due to recovery. The purpose of this requirement is to develop a program that detects the failure of any delisted species to sustain itself without the protective measures provided by the Act. If, at any time during the monitoring period, data indicate that protective status under the Act should be reinstated, we can initiate listing procedures, including, if appropriate, emergency listing.

We are proposing to delist island bedstraw and Santa Cruz Island dudleya based on our analysis in the SSA report, expert opinions, and conservation and recovery actions taken. Since delisting would be, in part, due to conservation actions taken by stakeholders, we have prepared draft post-delisting monitoring (PDM) plans for island bedstraw and Santa Cruz Island dudleya. The draft PDM plans describe the methods proposed for monitoring if we delist these taxa. The draft PDM plans: (1) describe frequency and duration of monitoring; (2) discuss monitoring methods and potential sampling regimes; (3) define what potential triggers will be evaluated to address the need for additional monitoring; (4) outline reporting requirements and procedures; (5) propose a schedule for implementing the PDM plans; and (6) define responsibilities. It is our intent to work with our partners towards maintaining the recovered status of island bedstraw and Santa Cruz Island dudleya. We will seek public and peer reviewer comments on the draft PDM plans, including their objectives and procedures (see FOR FURTHER INFORMATION CONTACT and Information Requested, above), with the publication of this proposed rule.

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

(1) Be logically organized;

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

(3) Use clear language rather than jargon;

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

(5) Use lists and tables wherever possible.

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

We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq. ), need not be prepared in connection with determining a species' listing status under the Endangered Species Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

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

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

The primary authors of this proposed rule are staff members of the Fish and Wildlife Service's Species Assessment Team and the Ventura Fish and Wildlife Office.

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