I. Obtaining Information and Submitting Comments I. Obtaining Information

Please refer to Docket ID NRC-2023-0086 when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:

• Federal Rulemaking website: Go to https://www.regulations.gov and search for Docket ID NRC-2023-0086.

• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly available documents online in the ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to PDR.Resource@nrc.gov.

• NRC's PDR: You may examine and purchase copies of public documents, by appointment, at the NRC's PDR, Room P1 B35, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. To make an appointment to visit the PDR, please send an email to PDR.Resource@nrc.gov or call 1-800-397-4209 or 301-415-4737, between 8 a.m. and 4 p.m. eastern time (ET), Monday through Friday, except Federal holidays.

The NRC encourages electronic comment submission through the Federal rulemaking website ( https://www.regulations.gov ). Please include Docket ID NRC-2023-0086 in your comment submission.

The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at https://www.regulations.gov as well as enter the comment submissions into ADAMS. The NRC does not routinely edit comment submissions to remove identifying or contact information.

If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.

On April 21, 2023, the NRC published a document in the Federal Register (88 FR 24495) requesting comments on DG-8061, “Release of Patients Administered Radioactive Material.” This DG is proposed Revision 2 to Regulatory Guide (RG) 8.39 of the same title. This proposed revision provides licensees with methods that are acceptable to the NRC for the release of patients after a medical procedure involving the administration of unsealed byproduct material, such as radiopharmaceuticals, or implants that contain radioactive material. The comment period was originally scheduled to close on June 20, 2023. Upon the request of the medical community, the NRC has decided to extend the public comment period on this document until August 20, 2023, to allow more time for members of the public to submit their comments.

A member of the public may, at any time, submit suggestions to the NRC for improvement of existing RGs or for the development of new RGs. Suggestions can be submitted on the NRC's public website at https://www.nrc.gov/reading-rm/doc-collections/reg-guides/contactus.html. Suggestions will be considered in future updates and enhancements to the “Regulatory Guide” series.

Please refer to Docket ID NRC-2023-0097 when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:

• Federal Rulemaking website: Go to https://www.regulations.gov and search for Docket ID NRC-2023-0097.

• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly available documents online in the ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to PDR.Resource@nrc.gov. The ADAMS accession number for each document referenced (if it is available in ADAMS) is provided the first time that it is mentioned in this document.

• NRC's PDR: You may examine and purchase copies of public documents, by appointment, at the NRC's PDR, Room P1 B35, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. To make an appointment to visit the PDR, please send an email to PDR.Resource@nrc.gov or call 1-800-397-4209 or 301-415-4737, between 8 a.m. and 4 p.m. eastern time (ET), Monday through Friday, except Federal holidays.

The NRC encourages electronic comment submission through the Federal rulemaking website ( https://www.regulations.gov ). Please include Docket ID NRC-2023-0097 in your comment submission.

The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at https://www.regulations.gov as well as enter the comment submissions into ADAMS. The NRC does not routinely edit comment submissions to remove identifying or contact information.

If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.

The NRC is issuing for public comment a DG in the NRC's “Regulatory Guide” series. This series was developed to describe methods that are acceptable to the NRC staff for implementing specific parts of the agency's regulations, to explain techniques that the staff uses in evaluating specific issues or postulated events, and to describe information that the staff needs in its review of applications for permits and licenses.

The DG, entitled “Damping Values for Seismic Design of Nuclear Power Plants,” (ADAMS Accession No. ML22273A040) is temporarily identified by its task number, DG-1364.

The proposed guide provides guidance for applicants and licensees on damping values that the NRC staff finds acceptable for use in the seismic response analysis of seismic Category I nuclear power plant structures, systems, and components. The specified damping values are intended for elastic dynamic seismic analysis where energy dissipation is accounted for by viscous damping. Since the issuance of revision 1 of RG 1.61 in 2007, updated criteria related to the concrete properties and damping values for use in the development of in-structure response spectra has become available.

DG-1364 addresses the updated criteria for concrete properties and new damping criteria for use in seismic analysis and design of nuclear power plants structures.

The staff is also issuing for public comment a draft regulatory analysis (ADAMS Accession No. ML22273A041). The staff developed a regulatory analysis to assess the value of issuing or revising a regulatory guide as well as determine courses of action.

As noted in the Federal Register on December 9, 2022 (87 FR 75671), this document is being published in the “Proposed Rules” section of the Federal Register to comply with publication requirements under chapter I of title 1 of the Code of Federal Regulations (CFR).

Issuance of DG-1364 as a final RG would not constitute backfitting as that term is defined in 10 CFR 50.109, “Backfitting,” and as described in NRC Management Directive (MD) 8.4, “Management of Backfitting, Forward Fitting, Issue Finality, and Information Requests,” to affect the issue finality of an approval issued under 10 CFR part 52, “Licenses, Certifications, and Approvals for Nuclear Power Plants;” or constitutes forward fitting as that term is defined and described in MD 8.4 because, as explained in DG-1364, licensees would not be required to comply with the positions set forth in the DG.

A member of the public may, at any time, submit suggestions to the NRC for improvement of existing RGs or for the development of new RGs. Suggestions can be submitted on the NRC's public website at https://www.nrc.gov/reading-rm/doc-collections/reg-guides/contactus.html. Suggestions will be considered in future updates and enhancements to the “Regulatory Guide” series.

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-2023-1210; Project Identifier MCAI-2022-01530-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 Sungmo Cho, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2022-0236, dated December 1, 2022 (EASA AD 2022-0236) (referred to after this as the MCAI), to address an unsafe condition for all RRD Model RB211-535C-37 engines. The MCAI states that the ALS for RB211-535C-37 engines, which is approved by EASA, is defined and published in TLM T-211(535)-5RR, and that these airworthiness limitations have been identified as mandatory for continued airworthiness. The MCAI also states that the manufacturer published a revised engine TLM to introduce new or more restrictive instructions and associated thresholds and intervals for life-limited parts.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-1210.

The FAA reviewed EASA AD 2022-0236, which specifies procedures for operators to revise the ALS of their existing approved engine maintenance or inspection program to incorporate new or more restrictive instructions and associated thresholds and intervals for life-limited parts described in the revised engine TLM, as applicable to each engine model. EASA AD 2022-0236 also describes actions for replacing life-limited parts, performing maintenance tasks, and performing corrective actions for any finding of discrepancy as referenced in the engine TLM.

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

These products have been approved by the aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI described above. 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.

This proposed AD would require revising the ALS of the operator's existing approved engine maintenance or inspection program, as applicable, to incorporate new or more restrictive instructions and associated thresholds and intervals for life-limited parts, which are specified in EASA AD 2022-0236, described previously, except for any differences identified as exceptions in the regulatory text of this proposed AD and as discussed under “Differences Between this Proposed AD and the EASA AD.”

Where paragraph (3) of EASA AD 2022-0236 specifies revising the approved Aircraft Maintenance Programme within 12 months after the effective date of EASA AD 2022-0236, this proposed AD would require revising the ALS of the existing approved engine maintenance or inspection program, as applicable, within 90 days after the effective date of this AD.

This proposed AD would not require compliance with paragraphs (1), (2), (4), and (5) of EASA AD 2022-0236.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has since coordinated with other manufacturers and CAAs to use this process. As a result, the FAA proposes to incorporate by reference EASA AD 2022-0236 in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2022-0236 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in the EASA AD does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2022-0236. Service information required by the EASA AD for compliance will be available at regulations.gov by searching for and locating Docket No. FAA-2023-1210 after the FAA final rule is published. Service information required by the EASA AD for compliance will be available at regulations.gov by searching for and locating Docket No. FAA-2023-1210 after the FAA final rule is published.

The FAA estimates that this AD, if adopted as proposed, would affect 2 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.

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

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

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should submit only one time if comments are filed electronically, or commenters should send only one copy of written comments if comments are filed in writing.

The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The FAA may change this proposal in light of the comments it receives.

Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy .

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

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Operations office (see ADDRESSES section for address, phone number, and hours of operations). An informal docket may also be examined during normal business hours at the Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Center, Operations Support Group, 2200 S 216th Street, Des Moines, WA 98198.

The Class E5 airspace designation is published in paragraph 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document proposes to amend the current version of that order, FAA Order JO 7400.11G, dated August 19, 2022 and effective September 15, 2022. These updates would be published in the next update to FAA Order JO 7400.11. That order is publicly available as listed in the ADDRESSES section of this document.

FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The proposed action within this NPRM was originally to be included as part of the rule- making actions of Docket No. FAA-2020-0800, which revoked the Class D airspace and modified the Class E airspace at Northeast Wyoming Regional Airport, Gillette, WY (85 FR 57807, September 16, 2020) but was unintentionally excluded from the rule. This action fulfills the need for additional Class E airspace within a 5-mile radius of the airport.

The FAA is proposing an amendment to 14 CFR part 71 to modify the Class E airspace extending upward from 700 feet above the surface at Northeast Wyoming Regional Airport, Gillette, WY. The Class E airspace extending upward from 700 feet above the surface should be modified to include a 5-mile radius of the airport. This area would accommodate arriving IFR operations below 1,500 feet above the surface and departing IFR operations until they reach 1,200 feet above the surface.

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

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

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

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register MTS Maritime Transportation System NPRM Notice of proposed rulemaking § Section U.S.C. United States Code COTP Captain of the Port II. Background, Purpose, and Legal Basis

The purpose of the proposed regulation is to ensure the safety of the port and life on navigable waters of the United States by restricting movement of vessels and barges over 500 gross tons (GT) in the event of heavy weather conditions or any natural or other disasters anticipated to affect the San Juan Captain of the Port (COTP) zone. The COTP has determined that reduced or restricted visibility and gale force winds which may occur during heavy weather periods and other disasters affecting Puerto Rico and the U.S. Virgin Islands, constitutes a safety concern for the navigable waters and waterfront facilities within the San Juan COTP zone. This proposed regulation would ensure safety of vessels and navigable waters within the safety zone before, during, and after heavy weather conditions, e.g., tropical storms, hurricanes and any natural or other disasters to minimize potential danger to the inbound, outbound, and transiting vessels. Additionally, both natural and other disasters may occur that are outside of the scope of the previously mentioned events, that would require the restriction of vessel movements within the COTP zone to protect life, property and the Maritime Transportation System (MTS) of Puerto Rico and the U.S. Virgin Islands. The Coast Guard is proposing this rulemaking under authority in 46 U.S.C. 70034.

The COTP is proposing to establish a safety zone on certain navigable waters within the Sector San Juan COTP zone in response to anticipated heavy weather periods ( e.g., tropical storms and hurricanes) and any natural or other disasters that would restrict movement of vessels when the COTP sets specific Port Conditions, or deems such restrictions necessary, if the situation threatens the safety of vessels and mariners entering, departing, and transiting through ports located within the San Juan COTP zone. The movement of vessels and barges over 500 GT within navigable waters of the San Juan COTP zone, i.e., ports of Puerto Rico and the U.S. Virgin Islands would be affected by this rule. Vessel movement restrictions would only apply to ports identified by the COTP forecast to experience gale force winds within an established threshold. The proposed rule would give the COTP flexibility in controlling and reconstituting vessel traffic during periods of heavy weather and allows for expediting resumption of the MTS following disasters and severe weather.

The proposed rule includes safety zones that would have vessel movement limitation determined by each Hurricane Port Condition when established by the COTP while in hurricane season or while anticipating gale force winds, and any natural or other disasters within the San Juan COTP zone. Hurricane Port Conditions (WHISKEY, X-RAY, YANKEE, and ZULU) are standardized states of operation instituted by the COTP and shared with all major ports, facilities, and members of MTS) within the COTP zone. All stakeholders are required to work in unison to safeguard the MTS when faced with the annual challenges posed by tropical storms, hurricanes as well as other unforeseen disasters.

Notice of Port Conditions and their requirements will be given via Marine Safety Information Bulletins, online at https://homeport.uscg.mil/port-directory/san-juan, Broadcast Notice to Mariners, and during Port Coordination meetings.

The regulatory text we are proposing appears at the end of this document.

We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB).

We expect the economic impact of this proposed rule to be not significant for the following reasons: (1) Vessel traffic and facilities will be impacted by this rule only during limited times while heavy weather or other disaster is expected to impact the Sector San Juan COTP zone; (2) vessel traffic would be secured only during port conditions Yankee and Zulu, and only in port areas potentially affected by gale force winds; and (3) the Coast Guard would issue updates on https://homeport.uscg.mil/port-directory/san-juan, Broadcast Notice to Mariners, and during Port Coordination meetings.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A above, this proposed rule would not have a significant economic impact on any vessel owner or operator.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132 (Federalism), if it has 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. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this proposed rule does not have tribal implications under Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) because it would not have a substantial direct effect on one or more Indian tribes, 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. If you believe this proposed rule has implications for federalism or Indian tribes, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the potential effects of this proposed rule elsewhere in this preamble.

We have analyzed this proposed rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a safety zone of limited duration implemented during heavy weather events e.g., tropical storms, hurricanes, or other natural disasters where a safety zone implementation is deemed appropriate by the COTP. Normally such actions are categorically excluded from further review under paragraph L60(a) in Table 3-1 of U.S. Coast Guard Environmental Planning Implementing Procedures 5090.1. A preliminary Record of Environmental Consideration is available in the docket where indicated under ADDRESSES . We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places, or vessels.

We view public participation as essential to effective rulemaking and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

Submitting comments. We encourage you to submit comments through the Federal Decision Making Portal at https://www.regulations.gov . To do so, go to https://www.regulations.gov, type USCG-2023-0269 in the search box and click “Search.” Next, look for this document in the Search Results column, and click on it. Then click on the Comment option. If you cannot submit your material by using https://www.regulations.gov, call or email the person in the FOR FURTHER INFORMATION CONTACT section of this proposed rule for alternate instructions.

Viewing material in docket. To view documents mentioned in this proposed rule as being available in the docket, find the docket as described in the previous paragraph, and then select “Supporting & Related Material” in the Document Type column. Public comments will also be placed in our online docket and can be viewed by following instructions on the https://www.regulations.gov . Frequently Asked Questions web page. We review all comments received, but we will only post comments that address the topic of the proposed rule. We may choose not to post off-topic, inappropriate, or duplicate comments that we receive.

Personal information. We accept anonymous comments. Comments we post to https://www.regulations.gov will include any personal information you have provided. For more about privacy and submissions to the docket in response to this document, see DHS's eRulemaking System of Records notice (85 FR 14226, March 11, 2020).

For the reasons discussed in the preamble, the Coast Guard is proposing to amend 33 CFR part 165 as follows:

Background and Need for Proposed Rule

The Forest Service proposes regulations to recover its costs for processing applications and other proposals related to mineral activity conducted on National Forest System (NFS) lands. The proposed rule would also recover agency costs for monitoring compliance with construction and reclamation requirements for authorizations issued by the Forest Service pursuant to 36 CFR part 228. Each year the Forest Service processes nearly 3,000 applications and other proposals to use and occupy NFS lands to prospect, explore, develop, and remove mineral resources. NFS lands currently host approximately 138 authorized locatable mineral operations, 47 operations associated with coal and other non-energy solid leasable minerals, 5,490 Federal oil and gas leases, 3,170 active oil and gas wells, 11 geothermal leases, and 4,155 community pits and common use areas for disposal of mineral materials. Each of these activities was subject to a case-specific review, analysis, and decision process before approval and implementation, requiring substantial Forest Service time and expense.

The Forest Service responds to requests from businesses and individuals to prospect, explore, develop, and/or dispose of mineral resources on NFS lands. Depending on the statutory classification of the mineral resource involved, these requests fall into three distinct program areas: locatable minerals, leasable minerals, and mineral materials. The action the Forest Service takes to process these requests varies as does the associated commitment of agency resources to complete their processing. Examples of mineral-related agency actions include approving locatable mineral plans of operation or oil and gas surface use plans of operation, issuing contracts or permits to dispose of mineral materials, and providing surface management agency responses to mineral leases and operating plan proposals that are filed with other government agencies such as the Bureau of Land Management.

Governing statutes related to minerals management on NFS lands include the General Mining Law of 1872; the Mineral Resources on Weeks Act Lands of March 4, 1917; the Mineral Leasing Act of 1920, as amended; the Bankhead-Jones Farm Tenant Act of 1937; the Mineral Leasing Act of 1947 for Acquired Lands; the Materials Act of 1947; the Surface Resources Act of 1955; the Geothermal Steam Act of 1970; the Federal Coal Leasing Amendments Act of 1975; the Surface Mining Control and Reclamation Act of 1977; the Federal Onshore Oil & Gas Leasing Reform Act of 1987; and the Energy Policy Act of 2005. The basic authority of the Secretary of Agriculture to regulate the use and occupancy of NFS lands is the Organic Administration Act of 1897 (16 U.S.C. 551).

Some of the aforementioned statutes provide the Forest Service with direct authority to authorize certain mineral-related activity (such as approving the surface use plan of operations for oil and gas drilling permits under the Federal Onshore Oil and Gas Leasing Reform Act). Other statutes provide that the Forest Service consent, concur, or make recommendations for mineral leases and operating plans filed with another government agency (such as, consent to the Bureau of Land Management [BLM] for coal leasing under the Federal Coal Leasing Amendments Act, and concurring to Federal mine plan decisions made by the Office of Surface Mining Reclamation and Enforcement [OSMRE]). The BLM, which manages federally owned minerals on all Federal lands, including NFS lands, has existing regulations for cost recovery for its minerals program. However, BLM's regulations do not include provisions for the Forest Service to recover its costs for actions where there are joint processing responsibilities.

Requirements of the National Environmental Policy Act, the National Historic Preservation Act, the Endangered Species Act, the Archaeological Resources Protection Act of 1979, and Executive Order Nos. 11998 (Floodplains) and 11990 (Wetlands) also bear directly on costs the Forest Service incurs in processing mineral-related actions. These statutory authorities and directives require the Forest Service to complete varying levels of analysis and document the effects of proposed activities on environmental, cultural, and historical resources. Oftentimes, specific consultation with agencies overseeing the resource protected under these statutes must also occur. The practical effect of these requirements lengthens the time required and increases the cost associated with processing mineral-related actions. The time and cost impacts weigh on Forest Service staff and financial resources, on proponents seeking authorization for new activity, and on holders of existing authorizations. These impacts are a principal factor in the development of this proposed cost recovery rule.

At current levels of appropriated funding, staffing, and other resources to manage its minerals program, the Forest Service finds it increasingly difficult to provide timely reviews and evaluation of mineral-related proposals and to monitor activity to ensure it is conducted in compliance with applicable requirements. Under current circumstances, the Forest Service is challenged to deliver efficient and effective customer service in its minerals program to meet the needs of proponents and the public.

Some proponents voluntarily fund agency costs and hire third-party contractors to conduct required environmental reviews to help speed the approval process for a particular proposed use. However, without the appropriate regulatory authority, the Forest Service has no means to require a proponent to pay for the agency's costs to process a proposal or monitor compliance with an authorization.

The Independent Offices Appropriations Act of 1952 (IOAA), as amended (31 U.S.C. 9701) authorizes Federal agencies to prescribe regulations to charge fees to recover the government's costs for providing special benefits to recipients beyond those that accrue to the general public.

The IOAA requires agencies to promulgate regulations to charge proponents for the cost of processing documents which the Forest Service is proposing to do through this rulemaking. Charges imposed under the authority of the IOAA must be fair and equitable and take into consideration the costs to the Federal Government, value to the recipient, public interest served, and other pertinent factors. The IOAA acknowledges that other statutes may prohibit or impose limitations on fees that the government may charge.

Government-wide policy for implementing the cost recovery provisions of the IOAA are described in the Office of Management and Budget (OMB) Circular No. A-25 entitled “User Charges.” The general Federal policy is that a charge will be assessed against each identifiable recipient for special benefits beyond those received by the general public. Unless prohibited by statute or other authority, the Circular states that agencies must impose a charge against each identifiable recipient that recovers the full cost to the agency of providing the service. Section 7 of the Circular directs that user charges be instituted through promulgation of agency regulations. Adoption of this proposed rule would comply with the requirements of OMB Circular No. A-25.

In 2016, the Government Accountability Office (GAO) completed a review to assess the Forest Service and BLM processing of mine plans of operation for hardrock minerals under the 1872 Mining Law (GAO-16-165). The GAO recommended the Forest Service issue a rule that establishes a fee structure for hardrock mine plan processing activities and request authority from Congress to retain any fees it collects. Adoption of this proposed rule would implement GAO's recommendation.

Additionally, Section 40206 of the 2021 Bipartisan Infrastructure Law (Pub. L. 117-58) specified that cost recovery is to be among options considered by the Secretaries of Agriculture and Interior to ensure adequate staffing of federal entities responsible for processing authorizations related to critical mineral activities on Federal land.

This rulemaking is needed for the Forest Service to comply with those statutory requirements and Federal policy as well as to implement GAO's recommendation. The proposed rule aims to increase capacity and improve customer service in the Forest Service minerals program.

The Forest Service expects to use the processing and monitoring fees paid by proponents to fund the costs the agency incurs in the review and decision-making process responding to mineral-related proposals to use and occupy NFS lands; to prepare and issue mineral authorizations in those cases where the agency approves the proposed use and occupancy; to provide required responses to mineral proposals filed with other government agencies; and to monitor compliance with the terms and conditions of mineral authorizations. The recovery of costs from applicants and holders would provide the Forest Service with additional resources to deliver more efficient and timely responses to requests for agency action. Similarly, cost recovery also would increase the Forest Service's ability to monitor on-site activities to adequately protect NFS lands and resources, in accordance with the terms and conditions of mineral authorizations. Upon final adoption, this rule would not provide the agency with the authority to retain and spend any of the funds collected. The agency's retention and expenditure of collected fees pursuant to this rule would need to be authorized by Congress. The Forest Service will seek such authority in conjunction with final adoption of this proposed rule. If Congress does not authorize retention authority, the funds received under this rule will be deposited in the General Treasury.

The proposed rule would require a proponent or holder to pay a processing fee and, where applicable, a monitoring fee. The rule creates a schedule of six categories where fees for a submitted proposal would be based on agency work hours involved to complete processing or to monitor an authorization. The proposed rule would also establish a fixed fee for low-volume mineral material disposals. In determining the appropriate processing fee, the Forest Service will include time needed to collect all data and information needed for the agency to: (1) fully describe the proposed use; (2) identify, evaluate, and prepare documentation of the environmental effects of the proposed use; and (3) make a decision or provide a required response to the proposal. Proponents would be encouraged to fulfill documentation aspects to the extent feasible from sources other than limited agency resources to maintain the agency's ability to process proposals in as efficient and timely a manner as possible. Processing tasks completed by the proponent, or a third party would reduce the amount of time the Forest Service spends on each case, thereby reducing the processing fee assessed to the proponent.

The cost recovery provisions of this proposed rule would apply to requests and applications as specified in the rule and received on or after the effective date of a final rule. The Forest Service may propose future rulemaking to recover other mineral program costs that are recoverable under the IOAA.

The proposed rule would give the authorized Forest Service officer discretion to waive all or part of processing fees in certain circumstances, such as for disposal of mineral materials to a government entity for a public works project.

The proposed rule would specify that a separate monitoring fee would not be charged for proposals subject to the fixed fee. Given the high annual number and minimal impact of these type of disposals, the Forest Service proposes to not collect a monitoring fee in the interest of administrative efficiency.

For authorizations issued by the Forest Service on or after the effective date of a final rule, this rule proposes to charge fees for monitoring compliance during the construction and reclamation phases of the authorization. The agency's experience monitoring over 4,600 mineral operations annually indicates that the cost to process a mineral proposal frequently has no relationship to the cost of monitoring the activity after an authorization is issued. Proposals that can be time consuming to process may require minimal time (or cost) for the agency to monitor. Alternately, an action requiring little time to process may require more time to monitor due to sensitive resource concerns or compliance issues. Therefore, the Forest Service proposes that the processing fee category and amount for each case would be determined independently of the monitoring fee category and amount; that is, the processing fee charged for non-fixed fee authorizations would not dictate the corresponding monitoring fee category or amount.

The processing fee for the fixed fee proposal must be paid at the time the proposal is submitted to the Forest Service. For category 1 through 4 proposals, the authorized officer would determine the processing fee based on the processing fee schedule. For category 5 and 6 proposals, the processing fee would be estimated on a case-by-case basis. The fee for Category 1 through 6 proposals would be due before the Forest Service begins processing the proposal. If the non-fixed fee proposal is approved by the authorized officer, a monitoring fee for the authorization would be the rate for the category determined appropriate for the activity (or estimated on a case-specific basis for category 5 and 6 authorizations). Payment of the monitoring fee would be due at the time the authorization is issued. Payment of monitoring fees for a multiyear project may be established in an agreement between the Forest Service and the operator.

The Forest Service would publish the cost recovery fees for the fee category schedule in the agency's directive system in Forest Service Handbook (FSH), Minerals and Geology Handbook 2809.15 (which can be accessed via the internet at the agency's directives home page: https://www.fs.usda.gov/im/directives/ ). Fees would be adjusted annually for inflation.

The fees collected by the Forest Service under this rule would be in addition to fees that may be due to another government agency for a specific proposal.

A section-by-section discussion of the proposed cost recovery rule follows.

Proposed § 228.200 Authority. This section identifies the IOAA as the statutory authority for the cost recovery rule.

Proposed § 228.201 Definitions. This section defines terms that have a unique meaning within the context of the proposed rule. The terms defined in this section allow for simplifying references to the variety of terms used throughout mineral regulations associated with the proposed rule.

Proposed § 228.202 Cost recovery. This section implements the authority provided for in the IOAA and OMB Circular No. A-25 that directs Federal agencies to recover costs for services provided to identifiable recipients beyond those accruing to the general public. This section specifies requirements for the agency to recover costs to process mineral-related proposals and to monitor authorized mineral activities. The proposed rule would not apply to agency costs associated with administering reserved and outstanding mineral rights activities that may be exercised as a property right without an authorization from the Forest Service or under the rules found at 36 CFR 251.15.

Paragraph (a) directs the Forest Service to assess fees to recover the agency's processing and monitoring costs for mineral proposals pursuant to the regulations of Part 228. Fees may either be fixed or determined from one of six processing categories. By definition, a proposal would include applications, plans, or other requests associated with mineral resources on NFS lands, including those proposals filed with another government entity which require input from the Forest Service. It would establish that cost recovery fees payable to the Forest Service under the rule would be separate from fees charged by other government entities. An example would be the fee charged by the Forest Service to process a surface use plan of operations for an oil and gas drilling permit would be separate from, and in addition to, the permit fee the BLM collects for processing the associated Application for Permit to Drill. The provisions of the rule do not apply to or supersede written agreements to recover processing costs executed by the Forest Service and a proponent prior to the effective date of the rule.

Paragraph (b) states that cost recovery requirements of Part 228 would apply to processing proposals received on or after the effective date of the rule (paragraph (b)(1)) and to monitoring of authorizations issued or amended under Part 228 on or after the effective date of the rule (paragraph (b)(2)).

Paragraph (c) outlines processing fee requirements in paragraphs (1) through (7). The introductory paragraph would require a fee for each proposal identified in paragraph (b) processed by the Forest Service and states that processing fees would not include costs incurred by the proponent to prepare information and documentation needed by the authorized officer to take action. The paragraph would also describe the basis for fixed fee proposals as well as for processing category proposals. Six processing categories would be established in this section and are based on the agency work hours needed to process the proposal, as shown in Table 1 below.

Paragraphs (c)(3)(ii)(A) through (F) establish that the Forest Service and the proponent could enter into master agreements (category 5) to recover processing costs associated with a single proposal, group of proposals, or similar proposals filed by the same proponent within a specified geographic area. Each proposal covered by a master agreement would be assigned its own processing fee category and rate. Master agreements may be considered an efficient alternative to case-specific estimates of processing time, particularly when a proponent routinely submits proposals or has several authorizations within a defined area or administrative unit.

Processing fees for category 5 (master agreements) and category 6 could be assessed and collected in periodic installments. The authorized officer would estimate the processing fees for category 5 and 6 proposals on a case-specific basis and would reconcile the fees based on the ultimate full cost to process. Upon the agency's completion of all processing tasks for category 5 and 6 proposals, any remaining balance of the processing fee would be either refunded to the proponent or credited towards monitoring fee assessments. When the estimated processing fee for category 5 and 6 proposals is lower than the agency's costs for processing a proposal, the proponent would be obligated to pay the difference between the estimated costs and the agency's full costs. For all categories, a proponent's payment of the processing fee would neither ensure nor imply agency approval of the proposed use or occupancy. The proponent would be liable for the agency's processing costs regardless of whether the proposal is subsequently denied by the agency or withdrawn by the proponent.

Establishing processing fees are expected to encourage prospective proponents to discuss their proposed use and occupancy with the Forest Service prior to submitting a formal proposal. The agency anticipates that this fee may also provide an incentive for proponents to better design their proposals to meet the agency's resource management concerns and objectives. The agency would not duplicate processing activities to be conducted by the proponent. Proponents would be encouraged to conduct as many of the necessary processing steps as possible (such as collecting data; performing studies; completing resource surveys, evaluations, and assessments; and conducting and documenting environmental analyses), subject to review and acceptance by the Forest Service. Having the proponent conduct these steps would minimize the time the Forest Service needs to process a proposal and would reduce the impact the proposal may have on limited Forest Service resources. The applicant also would minimize the proposal processing fee charged by the Forest Service and, in many cases, expedite the Forest Service's processing of the proposal.

Paragraph (c)(1) provides the basis for processing fees. Paragraph (c)(1)(i) states that fixed fees are based on a projected cost to process proposals that are identified as being subject to a fixed fee. In its agency directives, the Forest Service would specify that fixed fees would apply to mineral material disposals of 25 cubic yards or less from community pits or common use areas. This action was identified for a fixed fee in the interest of administrative efficiency because the Forest Service processes many of these minimal-impact actions annually. The fixed fee amount was based on an assumed processing cost that the Forest Service believes is a reasonable estimate of agency effort expended on these actions. The agency will continue to collect and analyze cost data to assess the reasonableness of the proposed fixed fee.

Paragraph (c)(1)(ii) states that fees for the six processing categories would be based on costs incurred by the agency to formally acknowledge receipt and initial review of a proposal, conduct environmental reviews and analyses, meet with the proponent, and prepare documentation and permits, as applicable. These costs would be specific to a project and would not include the cost of agency services or benefits that are programmatic in nature or benefit the general public. This paragraph would emphasize that processing work conducted by the proponent, or a third party contracted by the proponent, minimizes the costs the Forest Service will incur and thus would reduce the processing fee.

Paragraph (c)(2) provides the Forest Service Handbook reference where the amounts for the fixed fee action and categories 1 through 4 would be published. Categories 5 and 6 fees are determined on a case-by-case basis.

Table 2 below displays the fees proposed to be implemented under the rule. The table shows proposed fees for both the fixed fee action and for each of the six processing categories.

The proposed fee for low-volume mineral material disposals is based on two Federal work hours of processing time multiplied by an hourly rate of $32.57 per hour. The hourly rate used in the fee calculation includes salary, leave, benefits, and indirect costs. The hourly rate uses the 2019 salary for a Rest-of-US (RUS) General Services (GS) 5, Step 05 Federal employee which is assumed to be representative of the grade level of an employee typically processing low volume mineral material disposals from existing community pits and common use areas.

To determine the proposed cost recovery fee for categories 1 through 4, an average hourly wage was multiplied by the midpoint of the work hour range. The proposed fees are based on an average rate of $67.74 per hour of federal work time. This is the same average hourly wage (which includes pay additives and indirect costs) that was used in BLM's proposed revised fee rates for its right-of-way program published in the Federal Register on November 7, 2022 (87 FR 67306). The BLM's processing and monitoring cost data is presumed to reasonably represent costs incurred by the Forest Service within its minerals program because the work involves the same types of tasks at both agencies and is generally performed by employees at similar GS and experience levels. Given the recurring need for minerals projects to sometimes require a Forest Service special use authorization or a BLM right-of-way grant, it is important to have a consistent fee structure across agencies and programs. For this reason, the Forest Service proposes cost recovery fee rates for minerals that will mirror BLM's proposed revised fee rates for its right-of-way program published in the Federal Register on November 7, 2022 (87 FR 67306).

Paragraph (c)(3) describes criteria specific to processing fee categories for proposals not subject to a fixed fee. Paragraph (c)(3)(i) presents a table of the six processing fee categories and the associated Federal work hours involved. Paragraph (c)(3)(ii) provides for the use of master agreements as an instrument to recover costs associated with a proposal, a group of proposals, or similar proposals for a specified geographic area. Paragraphs (c)(3)(ii)(A) through (F) contain the minimum content requirements for a master agreement. An example of where a master agreement may be used is in recovering costs for processing an oil and gas Master Development Plan (§ 228.105(a)(1)) for multiple proposed wells. Paragraph (c)(3)(iii) describes requirements for category 6 processing actions which include determining fees on a case-by-case basis and the Forest Service and the proponent entering into a written agreement that consists of a work plan and a financial plan.

Paragraph (c)(4) states that processing costs incurred for processing multiple proposals must be paid in equal shares or on a prorated basis, as deemed appropriate by the authorized officer, among the proponents involved.

Paragraph (c)(5) describes procedures for how fees for proposals assigned to a processing category would be billed and revised. Paragraph (c)(5)(i) states that the authorized officer would issue the proponent a bill for the processing fee when the Forest Service is ready to process the action. Paragraph (c)(5)(ii) states that once a proposal is assigned to a processing category, it would not be reclassified into a higher category unless previously undisclosed information is discovered. Should that happen, the authorized officer would notify the proponent in writing before continuing with processing the proposal. The proponent has the option to accept the change, revise the proposal, withdraw the proposal, or invoke the rule's fee dispute procedure at § 220(e).

Paragraph (c)(6) through (6)(iii) provide direction on paying processing fees. The agency would not initiate processing a proposal until the prescribed fee was paid in full. The fee for a proposal subject to a fixed fee is due when the proposal is filed with the Forest Service. For all other proposals, payment of the processing fee is due within 30 days after the Forest Service issues a bill for the fee. When estimated costs are lower than the final processing costs for category 5 and 6 proposals, paragraphs (c)(6)(ii) and (iii) require proponents to pay the difference.

Paragraph (c)(7) addresses refunds of processing fees. Paragraphs (c)(7)(i) through (7)(iv) would specify that that processing fees for fixed fee proposals and for categories 1 through 4 are nonrefundable and would describe under what conditions the processing fee for category 5 and 6 proposals would be refunded to a proponent or credited towards monitoring fees due. If a proponent withdraws a category 5 or 6 proposal, the proponent is responsible for any costs incurred by the Forest Service in terminating processing of the proposal.

Paragraphs (d) through (5)(iii) establish procedures for the Forest Service to recover costs incurred to monitor compliance for authorizations issued by the Forest Service under the 36 CFR part 228 regulations. Monitoring would be conducted at a frequency commensurate with the work necessary to ensure compliance with the surface use requirements of an authorization.

Paragraph (d)(1) describes the basis for monitoring fees. For monitoring fees in categories 1 through 4, holders of approved operating plans are assessed fees based upon the estimated time needed for Forest Service monitoring to ensure compliance with surface use requirements during the construction or reconstruction phase of the approval and rehabilitation of the construction or reconstruction site. Category 5 and category 6 monitoring fees shall be based upon the agency's estimated costs to ensure compliance with the surface use terms and conditions during all phases of the authorized activity, including but not limited to monitoring to ensure compliance with surface use requirements during the construction or reconstruction phase of the authorization and rehabilitation of the construction or reconstruction site. Monitoring for all categories does not include billings, maintenance of case files, or scheduled inspections to determine compliance generally with the terms and conditions of an authorization.

Paragraph (d)(2) states monitoring fees for authorizations assigned to categories 1 through 4 would be assessed from a fee schedule published in the Forest Service directives. Monitoring fees for category 5 and category 6 authorizations would be determined on a case-by-case basis.

Paragraph (d)(3)(i) displays a table of the six monitoring categories and the range of Federal work hours for each. Paragraph (d)(3)(ii) provides requirements for the use of master agreements for monitoring and paragraph (d)(3)(iii) provides requirements for category 6 cost recovery cases. The monitoring fee categories use the same categories and Federal work hours as the processing fee categories.

Paragraphs (d)(4)(i) through (iii) contain requirements for billing and paying monitoring fees. Paragraph (d)(4)(i) specifies that monitoring fees for categories 1 through 4 must be paid in full at the time the authorization is issued. Estimated monitoring fees for categories 5 and 6 must also be paid in full when the authorization is issued unless the authorized officer and the proponent agree in writing to a payment schedule. Paragraph (d)(4)(ii) provides guidance for reconciling category 5 cases when the estimated monitoring costs are lower than the final actual monitoring costs and similarly, paragraph (d)(4)(iii) provides guidance for reconciling monitoring costs for category 6 cases.

Paragraphs (d)(5)(i) through (iii) contain requirements for refunds of monitoring fees. Paragraph (d)(5)(i) states that monitoring fees for categories 1 through 4 are nonrefundable. Paragraph (d)(5)(ii) addresses reconciling monitoring fee overpayments for category 5 cases and paragraph (d)(5)(iii) addresses reconciling overpayments for category 6 cases.

Paragraphs (e)(1) through (5) address proponent disputes of processing or monitoring fee assessments. Paragraph (e)(1) states that the assessment for a fixed fee case is not subject to review under this section. The fixed fee assessment would be established as a part of this rulemaking process and would not subject to adjustment by an administrative review process once the rule is finalized. Paragraph (e)(2) allows proponents who dispute the processing or monitoring fee category assigned by the authorized officer for category 1 through 4 cases or with the estimate of processing or monitoring costs for category 5 and 6 cases. The paragraph states that before the disputed fee is due, the proponent may submit a written request, along with supporting documentation, to the immediate supervisor of the authorized officer who made the determination for the case. Paragraphs (e)(3)(i) and (ii) provide that if the proponent pays the disputed processing fee, processing of the case would continue while the fee is pending the supervisory officer's review; and if the proponent chooses not to pay the disputed fee, the Forest Service will suspend processing the case until the fee dispute is resolved. Paragraphs (e)(4)(i) and (ii) provide that if the proponent pays a disputed monitoring fee, the authorization shall be issued or use and occupancy allowed to continue while the fee is pending the supervisory officer's review; and if the proponent chooses not to pay the disputed fee, the Forest Service will not issue the authorization in question or suspend the activity until the fee dispute is resolved. Paragraph (e)(5) directs the immediate supervisor of the authorized officer to render a decision on a disputed fee within 30 days of receipt of the proponent's written request, otherwise the dispute will be decided in favor of the proponent.

Paragraphs (f)(1) through (2) identify the circumstances under which the authorized officer may waive all or part of a processing or monitoring fee. Waiving all or any part of a fee pursuant to these criteria would be discretionary on the part of the authorized officer and would not be an entitlement of the proponent or holder.

Paragraph (f)(1)(i) provides for waiving fees for a local, State, Federal or tribal governmental entity that waives similar fees for comparable, like-kind service provided to the Forest Service.

Paragraph (f)(1)(ii) allows the authorized officer to waive part of the processing fee when a major portion of the costs results from issues not related to the actual project being proposed. For example, a proposal for a mineral material sale is requested from a community pit that lacks sufficient material to meet the request. The pit in question is expected to experience continued demand for material from the public and local government, so the Forest Service would like to analyze a larger area for a pit expansion. Although the analysis is triggered by the new proposal, the purpose of the analysis is only minimally attributable to the proponent's proposed use and occupancy. Thus, it is inappropriate to assess that proponent for the total cost of such an analysis.

Paragraph (f)(1)(iii) provides for a waiver or partial waiver of processing or monitoring fees when a proposed project is intended to prevent or mitigate damage to real property or to mitigate hazards to public health and safety resulting from an act of God, an act of war, or negligence of the United States. For example, a storm destroys a culvert crossing of a road that was constructed to provide access to an oil and gas well located within a federal lease on NFS land. The operator offers to replace the culvert and mitigate the associated damages that have resulted from the storm, and the repair work requires disturbance beyond what was authorized in the original surface use plan of operations. The fee for processing a proposal for this work may be waived by the authorized officer because of the public and/or agency benefits to be realized by the proposed use (that is, mitigating damages to National Forest System lands and resources by repairing the culvert crossing and adjacent lands to standards established by the Forest Service).

Paragraph (f)(1)(iv) provides for a waiver or partial waiver of processing or monitoring fees when a proposed activity is necessary to move a facility or improvement to a new location to comply with public health and safety or environmental requirements that were not in effect at the time the authorization was issued. For example, the discovery of habitat critical to threatened or endangered species requires an authorized officer to relocate a permitted access road for a mineral project. The authorized officer may waive the fee to process the holder's proposal for relocation of the road to avoid its use within the critical habitat.

Paragraph (f)(1)(v) provides for a waiver or partial waiver where an improvement or facility must be relocated because the land is needed by a Federal agency or Federally funded project for an alternative public purpose. For example, the Forest Service decides to construct a recreational trail in a location occupied by an authorized use, such as an access road to an oil and gas well. The new recreational trail requires relocation of a segment of the access road to preclude user conflicts between the operator and the recreating public. The road relocation requires a new or amended authorization. Processing fees associated with the operator's proposal for the authorization may be waived by the authorized officer.

Paragraph (f)(1)(vi) provides for waiving fees for processing a proposal or monitoring an authorization when studies undertaken in processing the proposal have a public benefit or the proposed facility or project would provide a free service to the public or to a USDA program.

Paragraph (f)(2) requires that requests for waivers be in writing and include an analysis of the applicability of the waiver criteria.

Paragraph (g) provides that decisions to assess a processing or monitoring fee or to determine the fee category or amount are not appealable. Paragraph (g) also would provide that a decision in response to a disputed processing or monitoring fee is not subject to administrative appeal.

Paragraph (h)(1) provides that the proposed schedules for processing and monitoring fees applicable to mineral proposals and authorizations would be set out in the Forest Service directive system. This paragraph specifies that the agency will keep fee schedules current with annual adjustments of fee rates in each cost category using the Implicit Price Deflator-Gross Domestic Product (IPD-GDP) index and will round up changes in the rates to the nearest dollar. The Forest Service will strive to update fee schedules on a calendar year basis. Fee schedules will remain in effect until updates are published in agency directives. Because the fee recalculations per the IPD-GPD are simply based on a mathematical formula, the Forest Service will update the fees in the directive without opportunity for notice and comment. In accordance with OMB Circular A-25, the Forest Service will review user charges biennially to assure whether existing charges need adjusting to reflect unanticipated changes in costs or market values.

Proposed § 228.203 Information collection requirements. This section states that information collected under Subpart F is required by law or already approved for use under existing information collection approvals for Part 228.

The authority listing would be expanded to include references to other statutes that mandate action by the Forest Service as surface management agency in responding to mineral proposals as well as a reference to the IOAA.

Paragraph (a)(3) would be revised to state that an operator submitting a plan of operations must pay a processing fee determined by the authorized officer in accordance with the cost recovery requirements of Subpart F.

Paragraph (e) would be revised to state that for each proposed modification to an approved plan of operations an operator must pay a processing fee determined by the authorized officer in accordance with the cost recovery requirements of Subpart F.

Paragraph (a)(1) would be revised to state that approval of a plan of operations is conditioned upon the operator paying a monitoring fee as determined by the authorized officer in accordance with the cost recovery requirements of Subpart F.

Proposed 228.20 Cost Recovery Fees. New paragraphs (a) through (c) would be added to this Subpart to require cost recovery for costs incurred by the Forest Service to provide responses required by law or regulation for leasable mineral proposals. Paragraph (a) would be specific to recovery of agency costs for responding to lease, exploration license, and prospecting permit proposals for coal and other solid leasable minerals which are filed with the BLM. Paragraphs (a)(1) through (4) would prescribe the process for recovering agency costs when the successful bidder for a competitively bid lease is someone other than the proponent. The process described is like that utilized by the BLM for competitive leasing of these resources. Paragraph (b) would require recovering costs for the Forest Service to review proposals to conduct operations for leasable minerals other than oil and gas. This would include applications required to be filed with the Forest Service under special legislation and those filed with the BLM, OSMRE or a State entity with delegated coal program authority. Oil and gas activity is excluded from this section because it is addressed in proposed changes to Subpart E. Paragraph (c) would direct the authorized officer to charge a monitoring fee for leasable mineral authorizations issued by the Forest Service and required by law, but not addressed elsewhere in Part 228, such as approval of surface use for geothermal activity within the Newberry National Volcanic Monument.

Proposed 228.21 Information Collection. This new section would be added to address information collection requirements of 5 CFR part 1320.

Proposed 228.43 Policy governing disposal. Paragraph (b) would be revised to state that the authorized officer will assess a fee to cover the cost of issuing and administering a contract or permit in accordance with the cost recovery requirements of Subpart F.

Proposed 228.51 Fees and bonding. This section would be retitled to include the topic “fees” and add a new paragraph (a) to include authority for recovery of costs for mineral material permits and contracts in accordance with the cost recovery requirements of Subpart F.

Proposed 228.58 Competitive Sales. A new paragraph (b) would be added to establish requirements for competitive mineral material sales. The Forest Service proposes to utilize a cost recovery process that mimics that used by the BLM for its competitive mineral material sales to account for situations where the successful bidder for a sale is someone other than the applicant. Existing paragraphs in the section would be redesignated to accommodate the addition of the new paragraph. Paragraph (b)(2) in the existing rule would be redesignated as paragraph (c)(2) and amended to state that the advertisement of sale must specify the applicable processing and monitoring fees that a successful bidder would be responsible for. Paragraph (d)(4) in the existing rule would be redesignated as paragraph (e)(4) and amended to state that a successful bidder would be required to pay the processing and monitoring fees specified in the sale advertisement within 30 days of receiving the sales contract.

Proposed 228.63 Removal under terms of a timber sale contract. This paragraph would be amended to include language for the authorized officer to charge a processing and monitoring fee in accordance with the cost recovery requirements of Subpart F for operating plans associated with timber sales that require the use of mineral materials from NFS lands for various physical improvements.

Proposed 228.106 Operator's submission of surface use plan of operations. Paragraph (a) would be amended to include language to state that the authorized officer shall charge a processing fee and, as appropriate, a monitoring fee for each surface use plan of operations in accordance with the cost recovery requirements of Subpart F.

Proposed 228.107 Review of surface use plan of operations. Paragraph (d) would be amended to state that for decisions to approve a surface use plan of operations, the authorized Forest officer's notification to BLM and the operator will include the monitoring fee that the operator must pay, in accordance with the cost recovery requirements of Subpart F, before surface use begins if the BLM approves the permit to drill. Paragraph (e) would be amended to state that a supplemental surface use plan of operation shall be subject to cost recovery and reviewed in the same manner as an initial surface use plan of operations.

This proposed rule has been reviewed under USDA procedures and Executive Order (E.O.) 12866, on regulatory planning and review, and the major rule provisions of the Small Business Regulatory Enforcement and Fairness Act (5 U.S.C. 800).

The Forest Service has determined that the proposed rule will not have an annual effect on the economy of $100 million or more. It will not adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities. This determination is based on the Initial Regulatory Flexibility Act (IRFA) analysis the Forest Service prepared in conjunction with this proposed rule. For more detailed information, see the IRFA prepared for this proposed rule. The IRFA has been posted in the docket for the proposed rule on the Federal eRulemaking Portal: https://www.regulations.gov. In the Searchbox, enter “RIN 0596-AD47,” click the “Search” button, open the Docket Folder, and look under Supporting Documents. Comments are invited on the data, methodology, and results of the Forest Service's IRFA analysis completed for the proposed rule per the invitation and directions for public comment provided in the summary at the beginning of this notice.

This rule will not create inconsistencies or otherwise interfere with an action taken or planned by another agency. This proposed rule does not change the relationships of the Forest Service's minerals programs with other agencies' actions. These relationships are based in law, regulation, agreements, and memoranda of understanding that would not change with this proposed rule.

In addition, this proposed rule would not materially affect the budgetary impact of entitlements, grants, loan programs, or the rights and obligations of their recipients. However, this rule does propose to create new fees for processing documents associated with the agency's minerals programs because of the IOAA, 31 U.S.C. 9701 as well as recommendations made by the GAO (Report No. GAO-16-165). As stated earlier in this preamble, the IOAA authorizes the Forest Service to charge proponents the cost of processing documents. In addition, the IOAA states that these charges should cover the agency's costs for these services to the degree practicable. Federal policy per OMB Circular A-25 directs agencies to assess user charges against identifiable recipients of special benefits derived from Federal activities.

Finally, although this rule does not raise novel legal issues, it is possible that it may raise novel policy issues because the agency would charge processing and monitoring fees that the Forest Service does not currently impose for mineral-related activity.

For this proposed rule, fee increases for some small businesses in the mineral materials sector are estimated to be in the range of 3 percent to 4 percent of annual receipts. The Forest Service could not conclude that costs to that subset of small businesses are sufficiently low or that net benefits of the proposed rule are sufficiently high to certify that the proposed rule would not have a significant economic impact on a substantial number of small entities. Instead, the Forest Service has prepared an initial RFA (IRFA) analysis of the economic impacts of the proposed rule on small entities that seek or hold mineral-related authorizations for use and occupancy of NFS lands.

For the purposes of this section, a small entity is defined by the Small Business Administration (SBA) for mining (broadly inclusive of metal mining, coal mining, oil and gas extraction, and the mining and quarrying of nonmetallic minerals) as an individual, limited partnership, or small company considered to be at arm's length from the control of any parent companies, with fewer than 500 employees. The SBA defines a small entity differently, however, for leasing Federal land for coal mining: a coal lessor is a small entity if it employs not more than 250 people, including people working for its affiliates. The Forest Service notes that this proposed rule does not affect service industries, for which the SBA has a different definition of “small entity.”

The proposed rule is expected to have non-significant effects on a substantial number of entities that conduct activity on NFS lands since most fit SBA's “small entity” definition and nearly all of them will face fee increases for activities on NFS lands. As presented in the IRFA analysis prepared by the Forest Service, and available as a supporting document for this proposed rule, except for mineral materials, when the total estimated fees paid by these entities are expressed as a percentage of the sales value of production from NFS land, the relative size and effect of the fees are small and are not expected to have a significant effect on these small entities.

When the total fee increases for leasable actions were compared to receipt data of production from Federal leases in 2017, the fee increases are 0.06 percent of receipts from NFS lands. Assuming the burden of the fee increases are distributed evenly among all firms operating on NFS lands the fee increases amounted to 0.30 percent of receipts attributable to small entities. Similarly, the total fee increases for locatable actions were 0.30 percent of estimated receipts attributable to NFS lands in 2017. Again, assuming fee increases are distributed evenly by active firms, the fee increases would be 2.11 percent of projected annual receipts from small entities engaged in locatable mineral actions on NFS lands. These fee increases are not expected to cause a significant impact on the small entities engaged in leasable or locatable mineral activity on NFS lands.

Within the mineral materials program, the proposed fee increases were estimated to be 61 percent of the total reported production value for mineral materials disposals from NFS lands in 2017. Assuming the burden of the fee increases is distributed evenly among all firms operating on NFS lands, the fee increases for mineral materials disposals amounted to 125 percent of receipts attributable to small entities in 2017. These percentages would suggest the potential of a significant impact on operators, including small entities, operating on NFS lands. However, the unique nature of mineral material production on NFS lands as being a high volume/low value commodity with involvement of high numbers of individuals and small businesses warranted a more detailed analysis beyond the coarse economic filter of comparing total fee collections to total receipts.

The proposed fees for mineral materials are comprised of a fixed fee for low volume disposals, a fee determined from a fee schedule for moderately complex proposals, and a case-by-case fee for the most complex proposals. For the five-year period 2015 through 2019, low volume disposals (that is, less than 25 cubic yards per disposal) made up approximately 83 percent of total number of mineral material disposals from NFS land, but only 0.2 percent of total disposed volume. Low volume disposals are largely made to entities for non-commercial purposes, and when coupled with the low proposed flat fee for this type of disposal, there is not expected to be a significant impact to small business or governmental entities as a result of implementing the rule.

Analysis of mineral material disposals for 2019 as a representative year found that 240 entities requesting disposals exceeding 25 cubic yards per disposal accounted for more than 99 percent of the total volume of mineral material disposed from NFS lands during the year. Disposal requests made by these 240 entities are expected to have dominated agency time dedicated to processing mineral material requests in 2019. However, within these 240 entities, disposal volumes, and therefore cost recovery fees, are expected to be highly skewed toward a small number of large operators. For example, 93 percent of the mineral material volume disposed in 2019 was allocated to only 11 of the 240 entities, or 1 percent of all entities requesting disposals for the year. Average disposal volume for these 11 entities ranged from 16,000 to 280,000 cubic yards per disposal request. Most of the time needed to satisfy NEPA, and therefore process disposal requests, are expected to be concentrated in this small subset of entities. Five of these 11 entities are large business or large governments with annual revenues over $100 million and therefore not classified as small businesses. Three of the entities have annual revenues between $2.7 million to $10.7 million for whom the average annual cost of preparing an environmental assessment would be less than 2.5 percent of annual revenues. The remaining three entities in this subgroup are small county governments, where proposed fees could entail significant economic impacts but would be eligible to have fees waived under the proposed rule waiver provisions.

The analysis further showed the 225 entities (16 percent of all entities requesting disposals on NFS land in 2019) that requested disposals between 25 and 16,000 cubic yards during 2019, would experience fees amounting from 1 percent to 4 percent of annual receipts for small businesses. Out of 225 entities, only 63 (less than 5 percent of all entities requesting disposals from NFS land in 2019) that submitted multiple disposal requests during the year are expected to be subject to fees in the range of 3 percent to 4 percent of annual receipts. The Forest Service believes this low number of entities would not constitute a substantial number of small entities experiencing a significant economic impact.

We note that in all areas, the proposed fees are charged only once per proposal and, therefore, generally the impact is spread over several years of industry production. This has the effect of lessening the impact of fees even further. In addition, bids at lease and competitive mineral material sales reflect fair market value, so we can expect associated bonus bids may decline in response to the increased processing costs.

The estimate of the proposed fees for processing locatable plans of operation did not include costs associated with a Forest Service certified mineral examiner (CME) preparing reports that sometimes are required to inform the authorized officer's decision on operating plans and may have possible effects on small entities. Although the cost for a CME to complete a mineral examination report (such as, validity exam, mineral classification report, or surface use determination) would increase the fee paid by a proponent to process a plan of operations, it would not be significant compared to the capital expenditures associated with many locatable mineral mining ventures, which may range from hundreds of thousands of dollars for small operations to hundreds of millions of dollars for large ventures. The smaller the entity, the more likely the proposed plan of operations will be less complex or involve fewer mining claims, reducing the time needed for the CME to review and document their findings. Because fees for a proposed plan of operations needing CME engagement are more likely to involve a case-by-case tracking of actual agency time and costs, plans that are less complex or involve fewer claims will generally be charged fees at the low end of the possible range. Impacts to small entities is also less likely because plans of operation needing a CME input are a relatively rare occurrence. The Forest Service estimates only around two percent of the locatable plans of operations that are processed in a year will need a mineral examination report.

The proposed rule was reviewed under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The Forest Service finds the proposed rule is not likely to have a significant effect (positive or negative) on energy supply or distribution. The regulation would be administrative in nature and does not impact agency decisions about leasing and subsequent development of energy resources on NFS lands.

The proposed rule is not expected to have a significant adverse effect on the supply, distribution, or use of energy; competition or prices; other agency actions related to energy; or raise novel issues regarding adverse effects on energy. The proposed rule is therefore not expected to be a significant energy action or require a statement of energy effects, consistent with OMB guidance for implementing E.O. 13211.

Pursuant to E.O. 13175, the agency has assessed the impact of this proposed rule on Indian tribal governments and expects that the proposed rule would not have direct and substantial effects on federally recognized Indian tribes. The proposed rule consists of administrative procedures for recovering costs for processing and monitoring proposals to conduct mineral activity and, as such, has no direct effect on tribal consultation requirements for individual mineral proposals on NFS land.

The Agency has also determined that this proposed rule would not impose substantial direct compliance costs on Indian tribal governments. This proposed rule does not mandate tribal participation in the Forest Service cost recovery process, and allows for waivers of cost recovery for tribal entities under certain circumstances.

This proposed rule would establish administrative fee categories and procedures for charging, collecting, and reconciling fees to process notices, requests, and proposals and monitor authorizations on National Forest System lands per the regulations of 36 CFR part 228. The charging of fees would have no bearing on where or how mineral projects are conducted on NFS lands. No environmental impacts are predicted with implementation of the rule. Forest Service National Environmental Policy Act (NEPA) regulations at 36 CFR 220.6(d)(2) excludes from documentation in an environmental assessment or impact statement “rules, regulations, or policies to establish Service-wide administrative procedures, program processes, or instructions.” The agency's preliminary assessment is that this proposed rule falls within this category of actions and that no extraordinary circumstances exist which would require preparation of an environmental assessment or environmental impact statement. A final determination will be made upon adoption of the final rule.

The agency has considered this proposed rule under the requirements of E.O. 13132, Federalism, and has made a preliminary assessment that the rule conforms with the Federalism principles set out in the Executive Order; would not impose any compliance costs on the States; and would 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. Moreover, the cost recovery processing and monitoring fees set out in this proposed rule may be waived or partially waived for State and local government entities that waive similar fees they might otherwise assess the Forest Service. The proposed rule may result in a slight decrease in bonus bids for coal and other solid mineral leases, which are shared with the States. Based on comments received on this proposed rule, the agency will consider if any additional consultation will be needed with State and local governments prior to adopting a final rule.

This proposed rule has been analyzed in accordance with the principles and criteria contained in E.O. 12630, and it has been determined that the proposed rule does not pose the risk of a taking of constitutionally protected private property. The proposed rule has no bearing on property rights, but only concerns recovery of government processing costs for actions that benefit certain entities that acquire rights and seek use and occupancy of NFS lands to extract publicly owned resources. Therefore, the Forest Service has determined that the rule would not cause a taking of private property or require further discussion of takings implications under the Executive Order.

This proposed rule has been reviewed under E.O. 12988, Civil Justice Reform. The Forest Service finds that this rule would not unduly burden the judicial system. If this proposed rule were adopted, (1) all State and local laws and regulations that are in conflict with this proposed rule or that would impede its full implementation would be preempted; (2) no retroactive effect would be given to this proposed rule; and (3) it would not require administrative proceedings before parties may file suit in court challenging its provisions.

Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), the agency has assessed the effects of this proposed rule on State, local, and tribal governments and the private sector. This proposed rule would not compel the expenditure of $100 million or more in any one year by any State, local, or tribal government or anyone in the private sector. Therefore, a statement containing the information required under section 202 of the Act is not required.

This proposed rule does not contain any new record-keeping or reporting requirements, or other information collection requirements as defined in 5 CFR part 1320 that are not already required by law or not already approved for use. The information that would be collected by the Forest Service as a result of this action have been approved by the Office of Management and Budget (OMB) under existing Control Numbers 0596-0022 (locatable minerals), 0596-0081(mineral materials), and 0596-0101 (oil and gas). In recovering costs for providing responses required by law or regulation for coal and non-energy solid leasable minerals, the Forest Service will utilize information provided under existing OMB clearances issued to the Bureau of Land Management and the Office of Surface Mining Reclamation and Enforcement. Accordingly, the review provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) and its implementing regulations at 5 CFR part 1320 do not apply.

Therefore, for the reasons set forth in the preamble, the Forest Service proposes to amend part 228 of title 36 of the Code of Federal Regulations as follows:

The revision and addition read as follows:

The addition and revisions read as follows:

CAA section 182(b)(2) requires states to revise their SIPs to include provisions implementing Reasonably Available Control Technology (RACT) for each category of volatile organic compound (VOC) sources covered by a Control Techniques Guidelines (CTG)  1 document in ozone nonattainment areas that are classified as moderate or above. CAA Section 182(2)(B) specifically requires states to include VOC RACT measures in their SIPs if the area is covered by a CTG issued prior to November 15, 1990. In 1975, EPA established a CTG addressing the control of VOC emissions from gasoline dispensing facilities (GDFs). 2 For certain GDFs, owners or operators are required to install systems for the recovery of gasoline vapor emissions. These requirements are also known as Stage I and Stage II vapor recovery. 3

Stage I vapor recovery requires the control of hydrocarbon gasoline vapors, such as VOCs, when dispensing gasoline from tanker trucks into gasoline storage tanks. Specifically, Stage I vapor recovery systems capture vapors displaced from storage tanks at GDFs during gasoline cargo truck deliveries. When gasoline is delivered into an above ground or underground storage tank, vapors that were taking up space in the storage tank are displaced by the gasoline entering the storage tank. The Stage I vapor recovery systems route these displaced vapors into the tank of the delivery truck. Some vapors are vented when the storage tank exceeds a specified pressure threshold, however, the Stage I vapor recovery systems greatly reduce the possibility of these displaced vapors being released into the atmosphere.

Georgia's Gasoline Dispensing Facilities Rule, found at 391-3-1-.02(2)(rr), applies to certain GDFs located in Barrow, Bartow, Carroll, Catoosa, Cherokee, Clayton, Cobb, Coweta, DeKalb, Douglas, Fayette, Forsyth, Fulton, Gwinnett, Hall, Henry, Newton, Paulding, Richmond, Rockdale, Spalding, Walker, and Walton Counties. The rule required all facilities in these counties to install either Stage I or Enhanced Stage I gasoline vapor recovery systems by certain dates, the latest of which was May 1, 2023. EPA last modified the SIP-approved version of Rule 391-3-1-.02(2)(rr) on September 28, 2012. See 77 FR 59554.

CAA section 110(l) prohibits EPA from approving a SIP revision if it would interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in CAA Section 171), or any other applicable requirement of the CAA. The proposed changes included in Georgia's November 4, 2021, submission will not lead to any increases of NAAQS pollutants and will not otherwise interfere with any CAA applicable requirement. 4 The changes to Georgia's GDF rule and EPA's rationale for proposing approval are described in more detail in section II of this Notice of Proposed Rulemaking (NPRM).

EPA is proposing to approve changes to Rule 391-3-1-.02(2)(rr), “Gasoline Dispensing Facility—Stage I.”  5 The revision primarily contains non-substantive changes such as language edits, removing outdated references, and clarifying edits. The revision also updates several definitions and makes two substantive changes.

The bulk of the changes in the November 4, 2021, submission are minor language edits. For example, one language edit removes the phrase “per month” from the sentence, “. . . gasoline dispensing facilities that dispense no more than 10,000 gallons average monthly throughput rate of gasoline per month . . .” to remove redundancy. Another example of a language edit is a word preference alteration that changes the word “replacement” to “replaced” in the phrase “replacement parts.” Additionally, the State has edited various provisions in the rule to remove titles from sections that are self-explanatory based on the content of the provision. Other similar changes include the correction of typos, small grammatical changes, and the necessary renumbering of some provisions to account for the removal of others.

The proposed revision also makes several changes to clarify the physical nature of gasoline vapor recovery control systems. First, with respect to the required components for a stationary storage tank, the State has added language to subparagraph (rr)1.(i)(III) specifying that required vents must stand vertically. The State added this language to further define the nature of the particular vents that operators/owners use in stationary storage tanks. Although there is no federal requirement for vents to be vertical, the vents must be at least 12 feet above the ground as required in the SIP-approved version of this subparagraph. EPA is proposing to approve this edit because the rule continues to meet the federal requirement for the vent to be at least 12 feet above the ground. Another clarifying edit the State made is to subparagraph (rr)1.(ii)(II), a provision that outlines one method to control vapors displaced from gasoline stationary storage tanks during filling. The edit specifies that when a manifold connects all gasoline stationary storage tanks vent lines, the vapor-tight vapor return line that controls displaced vapors must connect the gasoline stationary storage tank being filled directly to the delivery vessel. Previously, this provision did not use the word “connected” to specify that the vapor-tight vapor return line must directly link the delivery vessel to a gasoline stationary storage tank. EPA is proposing to approve this edit because it clarifies where the vapor-tight vapor return line must be connected to sufficiently control displaced vapors during the filling process.

In addition to the changes addressing the physical nature of the control technology, the State has made other edits to clarify various certification and recertification testing requirements. First, the State has revised Subparagraph (rr)7. to clarify that when a party other than GA EPD conducts certification or recertification testing of any Stage I gasoline vapor recovery system, the party must identify the California Air Resources Board (CARB) Executive Order number associated with the system to be tested, in addition to other information. 6 This requirement already existed; however, Georgia added the language “associated with the system to be tested” to clarify exactly what information another party would need to submit to GA EPD for either certification or recertification testing.

With respect to other certification and recertification requirements, SIP-approved subparagraph (rr)8.(ii) requires certification testing within 30 days of installation for Enhanced Stage I gasoline vapor recovery systems approved by GA EPD and installed after December 31, 2022, and SIP-approved subparagraph (rr)8.(iv) requires recertification testing after June 1, 2008, within 24 months following the initial certification or recertification for any Enhanced Stage I gasoline vapor recovery system approved by GA EPD. The SIP revision removes these two subparagraphs and expands the applicability of subparagraphs (rr)8.(i) and 8.(iii) (renumbered to (ii)) to account for the removal. Georgia adds the word “any” to subparagraph (rr)8.(i) to require certification testing within 30 days of installation for “any” Stage I gasoline vapor recovery system approved by GA EPD after December 31, 2002. Similarly, in subparagraph (rr)8.(iii) (renumbered to (ii)), Georgia adds the word “any” to require recertification testing after June 1, 2008, within 12 months following initial certification or recertification for “any” Stage I gasoline vapor recovery system approved by GA EPD. EPA is proposing to approve these changes to (rr)8. because the addition of the word “any” to describe Stage I gasoline vapor systems in subparagraphs (rr)8.(i) and (rr)8.(iii) (renumbered to (ii)) encompasses all Stage I gasoline vapor systems, including Enhanced Stage I vapor recovery systems and because the change to subparagraph (rr)8.(iii) (renumbered to (ii)) would require recertification testing of Enhanced Stage I vapor recovery systems within 12 months of the initial certification or recertification instead of 24 months, making the new requirements more stringent.

The State made a clarifying edit in subparagraph (rr)9. to specify that “failed test results” for certification or recertification of the gasoline vapor recovery systems must also be included in compliance reports. This requirement already existed as all compliance reports needed to include “results of all tests”; however, the State has included the new language to clarify that all tests does include failed test results.

In addition to the changes to the various certification and recertification requirements, Georgia has revised the rule's recordkeeping requirements. Specifically, Georgia removed language in subparagraph (rr)13. regarding record disposal that stated there could be no time extension beyond the requirements of the subparagraph. Subparagraph (rr)13. does not have any timing requirements, therefore, EPA is proposing to approve this change as it removes superfluous language.

Finally, Georgia has made some clarifying edits to specify the required vapor efficiency to qualify as a “Stage I Gasoline Vapor Recovery System” or an “Enhanced Stage I Gasoline Vapor Recovery System.” Georgia has revised subparagraph (rr)15.(x)(II) to specify that a vapor recovery system must meet a threshold of 95% vapor collection efficiency to qualify as a “Stage I Gasoline Vapor Recovery System” and revised subparagraph (rr)15.(iv)(I) to specify that a vapor recovery system must meet a threshold of 98% vapor collection efficiency to qualify as an “Enhanced Stage I Gasoline Vapor Recovery System”. These thresholds already existed in Rule 391-3-1-.02(2) as each respective system was required to function in accordance with the applicable CARB executive orders, and each CARB executive order for Stage I gasoline vapor recovery systems requires at least a 95% vapor control efficiency, while each CARB executive order for each Enhanced Stage I gasoline vapor recovery systems required at least a 98% vapor control efficiency. See Georgia Rule 391-3-1-.02(2)(rr)6.; 391-3-1-.02(2)(rr)15.(iv)(I); and 391-3-1-.02(rr)15.(x)(II). Therefore, EPA is proposing to approve these changes.

In addition to the changes outlined above, Georgia has removed language in subparagraph (rr)14. specifying that GA EPD personnel conduct annual compliance inspections and functional testing of all GDFs equipped with Enhanced Stage I or Stage I gasoline vapor recovery systems. This subparagraph now allows either GA EPD personnel or certified third-party testers to conduct annual compliance inspections and functional testing. EPA is proposing to approve this change as it expands the group of certified testers who can perform testing for annual compliance inspections and functional testing.

EPA is proposing to approve this SIP revision because the rule changes are not expected to result in any change to air pollutant emissions and therefore would not interfere with any applicable requirement concerning attainment and reasonable further progress or any other applicable CAA requirement. In addition, these changes are consistent with all applicable federal requirements for Stage I gasoline dispensing facilities.

In this document, EPA is proposing to include in a final rule regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, and as discussed in Sections I and II of this preamble, EPA is proposing to incorporate by reference Georgia Rule 391-3-1-.02(rr), “Gasoline Dispensing Facility—Stage I,” with the exception of changes to subparagraph 391-3-1-.02(2)(rr)16.(x). This regulation was state effective on October 25, 2021. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 4 office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT Section of this preamble for more information).

EPA is proposing to approve the November 4, 2021, SIP revision to incorporate the changes to Georgia's Stage I gasoline dispensing facility rules into the Georgia SIP. Specifically, EPA is proposing to approve the changes to Rule 391-3-1-.02(2)(rr), “Gasoline Dispensing Facility—Stage I,” with the exception of changes to subparagraph 391-3-1-.02(2)(rr)16.(x). EPA is proposing to approve these changes for the reasons discussed above.

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

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

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

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

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

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

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

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

• 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.

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).

Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, Feb. 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. EPA defines environmental justice (EJ) 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.” 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.”

Georgia EPD did not evaluate EJ considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA did not perform an EJ analysis and did not consider EJ in this proposed action. Due to the nature of the action being proposed, this proposed action is expected to have a neutral to positive impact on the air quality of the affected area. Consideration of EJ is not required as part of this proposed action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving EJ for people of color, low-income populations, and Indigenous peoples.

Throughout this document “we,” “us,” or “our” means the EPA.

Section 110 of the Act requires states to develop air pollution regulations and control strategies to ensure that air quality meets the EPA's National Ambient Air Quality Standards (NAAQS). These ambient standards are established under CAA section 109 and currently address six criteria pollutants: carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter (PM), and sulfur dioxide. A state's air regulations are contained in its SIP, which is basically a clean air plan. Each state is responsible for developing SIPs to demonstrate how the NAAQS will be achieved, maintained, and enforced. The SIP must be submitted to the EPA for approval and any changes a state makes to the approved SIP also must be submitted to the EPA for approval.

On January 24, 2023, the Secretary of Energy and Environment for the State of Oklahoma (“the State”) submitted revisions of the Oklahoma SIP to the EPA. The revisions address Subchapters 2, 8, 37, 39, and Appendix Q in the Oklahoma Administrative Code (OAC) Title 252, Chapter 100. The submitted revisions to Subchapters 37 and 39 are severable and in this action, we are proposing to approve the revisions to Subchapters 37 (Control of Emission of Volatile Organic Compounds (VOCs), and 39 (Emission of Volatile Organic Compounds (VOCs) in Nonattainment Areas and Former Nonattainment Areas). We are addressing the revisions to Subchapter 2 and Appendix Q in a separate action  1 and plan to address the revisions to Subchapter 8 in separate future action.

The criteria used to evaluate these SIP revisions are found primarily in section 110 of the Act. Section 110(l) requires that a SIP revision submitted to the EPA be adopted after reasonable notice and public hearing and precludes the EPA from approving a SIP revision if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress or any other applicable requirement of the Act.

The submitted revisions were promulgated in compliance with the Oklahoma Administrative Procedures Act and published in the Oklahoma Register, the official state publication for rulemaking actions. These revisions are posted in the docket for this action.

In this action, we are proposing to approve revisions to OAC 252:100, Subchapters 37 and 39 (OAC 252:100-37 and 252:100-39). The submitted revisions are available in the docket for this action. A summary of the State's submitted revisions follows.

1. OAC 252:100-37-16 (Loading of VOC) revises OAC 252:100-37-16(c). The revision makes clear the Department's long standing interpretation that loading operations from condensate tanks at natural gas compressor stations are not considered loading facilities for the purpose of this section, and thus are not subject to the requirements of this section.

2. OAC 252:100-39-45 (Petroleum (solvent) Dry Cleaning) amendment to correct the approval process for facilities that incinerate petroleum solvents dry cleaning filters and removes the outdated compliance schedule. Section 45 is specific to petroleum solvent dry cleaners in Tulsa County and the revision clarifies that incineration of petroleum dry cleaning filters would only be allowed if permitted by the appropriate regulatory entity.

The revisions to OAC 252:100-37 clarify the State's interpretation of loading facility as a facility whose main purpose is for the loading/unloading of VOCs in relatively large quantities using specialized equipment. Although loading operations occur at compressor stations, the facility itself is not considered a loading facility and was therefore not intended to be covered by these requirements. The transfer of condensate and produced water from atmospheric storage tanks into individual tanker trucks at a compressor station is a different type of operation (both in scale and in the equipment used). For example, applicable loading facilities include the bulk transfer of gasoline at a pipeline terminal/bulk gasoline distribution system.

There are several other provisions in Chapter 100 that apply to compressor stations. The requirements in 252:100-37-15(b) for submerged fill or a vapor recovery system would apply to most condensate tanks at compressor stations since a typical tank is about 400 barrels (16,800 gallons) and for compressor stations that have effluent water separators 252:100-37-37 would apply. Condensate tanks at compressor stations are covered under other parts of Subchapter 37, namely 252:100-37-15, in addition to any federal NSPS that may also apply such as Subpart OOOO.

Examination of the revisions indicates that the submitted revision to Subchapter 39-45 is proper and provides additional clarity. The specification that incineration of petroleum dry cleaning filters would only be allowed if permitted by the appropriate regulatory entity updates this provision to appropriately address existing law for incineration facilities in Oklahoma. The removal of an outdated deadline streamlines the SIP for additional clarity.

The submitted revisions to OAC 252:100-37 and 39 add clarity and consistency to the Loading of VOC and Petroleum (solvent) Dry Cleaning rules. The revisions do not relax the current SIP rules and are consistent with Federal regulations at 40 CFR 60 and 40 CFR 61. Therefore, and consistent with CAA section 110(l), we do not expect these revisions to interfere with any applicable requirement concerning attainment and reasonable further progress or any other applicable requirement of the Act. We are proposing to approve the submitted these revisions to Subchapter 37, Section 16 and Subchapter 39, Section 45.

Following the U.S. Supreme Court decision in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), the Governor of the State of Oklahoma requested approval under Section 10211(a) of the Safe, Accountable, Flexible, Efficient Transportation Equity Act of 2005: A Legacy for Users, Public Law 109-59, 119 Stat. 1144, 1937 (August 10, 2005) (“SAFETEA”), to administer in certain areas of Indian country (as defined at 18 U.S.C. 1151) the State's environmental regulatory programs that were previously approved by the EPA for areas outside of Indian country. The State's request excluded certain areas of Indian country further described below. In addition, the State only sought approval to the extent that such approval is necessary for the State to administer a program in light of Oklahoma Dept. of Environmental Quality v. EPA, 740 F.3d 185 (D.C. Cir. 2014). 2

On October 1, 2020, the EPA approved Oklahoma's SAFETEA request to administer all the State's EPA-approved environmental regulatory programs, including the Oklahoma SIP, in the requested areas of Indian country. As requested by Oklahoma, the EPA's approval under SAFETEA does not include Indian country lands, including rights-of-way running through the same, that: (1) qualify as Indian allotments, the Indian titles to which have not been extinguished, under 18 U.S.C. 1151(c); (2) are held in trust by the United States on behalf of an individual Indian or Tribe; or (3) are owned in fee by a Tribe, if the Tribe (a) acquired that fee title to such land, or an area that included such land, in accordance with a treaty with the United States to which such Tribe was a party, and (b) never allotted the land to a member or citizen of the Tribe (collectively “excluded Indian country lands”).

EPA's approval under SAFETEA expressly provided that to the extent EPA's prior approvals of Oklahoma's environmental programs excluded Indian country, any such exclusions are superseded for the geographic areas of Indian country covered by the EPA's approval of Oklahoma's SAFETEA request. 3 The approval also provided that future revisions or amendments to Oklahoma's approved environmental regulatory programs would extend to the covered areas of Indian country (without any further need for additional requests under SAFETEA). 4

As explained earlier in this action, the EPA is proposing to approve revisions to portions of the Oklahoma SIP that were submitted by the State of Oklahoma on January 24, 2023. More specifically, we are proposing to approve a revision providing clarification to OAC 252:100-37-16 of Subchapter 37, Control of Emission of Volatile Organic Compounds (VOCs) and amending language and correcting approval process for OAC 252:100-39-45 of Subchapter 39, Emission of Volatile Organic Compounds (VOCs) in Nonattainment Areas and Former Nonattainment Areas, in the Oklahoma Administrative Code Title 252, Chapter 100, Oklahoma Department of Environmental Quality Consistent with the D.C. Circuit's decision in ODEQ v. EPA and with EPA's October 1, 2020, SAFETEA approval, if this approval is finalized as proposed, these SIP revisions will apply to all Indian country within Oklahoma, other than the excluded Indian country lands, as described earlier. Because—per the State's request under SAFETEA—EPA's October 1, 2020, SAFETEA approval does not displace any SIP authority previously exercised by the State under the CAA as interpreted in ODEQ v. EPA, the SIP will also apply to any Indian allotments or dependent Indian communities located outside of an Indian reservation over which there has been no demonstration of tribal authority. 5

We are proposing to approve a portion of the revisions to the Oklahoma SIP, submitted to us on January 30, 2023. Specifically, we are proposing to approve revisions to OAC 252:100, Subchapters 37 and 39. We are proposing to approve these revisions in accordance with section 110 of the Act.

EPA reviewed demographic data, which provides an assessment of individual demographic groups of the populations living within Oklahoma. EPA then compared the data to the national average for each of the demographic groups. The results of this analysis are being provided for informational and transparency purposes. The results of the demographic analysis indicate that, for populations within Oklahoma, the percent people of color (persons who reported their race as a category other than White alone (not Hispanic or Latino) is less than the national average (38.5 percent versus 43.1 percent). Within people of color, the percent of the population that is Black or African American alone is less than the national average (7.8 percent versus 13.6 percent) and the percent of the population that is American Indian/Alaska Native is greater than the national average (9.7 percent versus 1.3 percent). The percent of the population that is two or more races is greater than the national average (6.6 percent versus 2.9 percent). The percent of people living in poverty in Oklahoma is greater than the national average (15.6 percent versus 11.6 percent).

The proposed approval strengthens the SIP by adding clarity and consistency to the SIP. We expect that this action will generally be neutral or contribute to reduced environmental and health impacts on all populations in Oklahoma, including people of color and low-income populations. Further, there is no information in the record indicating that this action is expected to have disproportionately high or adverse human health or environmental effects on a particular group of people.

The ODEQ did not evaluate environmental justice considerations as part of their SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA performed an environmental justice analysis, 6 as is described above. The analysis was done for the purpose of providing additional context and information about this rulemaking to the public, not as a basis of the action.

In this action, we are proposing to include in a final rule regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, we are proposing to incorporate by reference revisions to the Oklahoma regulations as discussed in Section II, The EPA's Evaluation, and Section IV, Proposed Action, of this preamble. We have made, and will continue to make, these documents generally available electronically through www.regulations.gov (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 Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this 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

• Executive Order 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, February 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. EPA defines environmental justice (EJ) 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.” 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.”

Oklahoma did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA performed an environmental justice analysis, as is described above in the section titled, “Environmental Justice Considerations.” The analysis was done for the purpose of providing additional context and information about this rulemaking to the public, not as a basis of the action. In addition, there is no information in the record upon which this decision is based inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous people.

This proposal to approve revisions to the Oklahoma SIP will apply, if finalized as proposed, to certain areas of Indian country throughout Oklahoma as discussed in the preamble, and therefore has tribal implications as specified in E.O. 13175 (65 FR 67249, November 9, 2000). However, this action will neither impose substantial direct compliance costs on federally recognized tribal governments, nor preempt tribal law. This action will not impose substantial direct compliance costs on federally recognized tribal governments because no actions will be required of tribal governments. This action will also not preempt tribal law as no Oklahoma tribe implements a regulatory program under the CAA, and thus does not have applicable or related tribal laws. Consistent with the EPA Policy on Consultation and Coordination with Indian Tribes (May 4, 2011), the EPA has offered consultation to tribal governments that may be affected by this action.

The EPA is proposing to approve changes to North Carolina's SIP that were provided to EPA by NCDEQ via a letter dated April 13, 2021. 1 Specifically, the EPA is proposing approval of changes to 15A North Carolina Administrative Code (NCAC) Subchapter 02D, Rules .0926, Bulk Gasoline Plants; .0927, Bulk Gasoline Terminals; .0932, Gasoline Cargo Tanks and Vapor Collection Systems; and .2615, Determination of Leak Tightness and Vapor Leaks. 2 The changes to these rules, as well as EPA's analysis of the changes, are discussed in the following section. 3

Follows is EPA's analysis of the changes in the April 13, 2021, SIP revision that are the subject of this proposed rulemaking.

North Carolina's April 13, 2021, SIP revision includes changes to Rule 02D .0926, Bulk Gasoline Plants, by adding one definition, removing obsolete language, clarifying some requirements, and making general grammar and formatting updates. 4 The EPA provides further detail below concerning the proposed changes to Rule 02D .0926.

First, North Carolina's SIP revision adds a definition at 02D .0926(a)(5) for “Cargo tank.” All other definitions in this rule were renumbered accordingly to reflect this change. This is a new definition that refers to storage vessels on freight trucks or trailers that are used to transport gasoline from sources of supply to stationary storage tanks of bulk gasoline terminals, bulk gasoline plants, gasoline dispensing facilities, and gasoline service stations. The term “cargo tank” replaces the terms “tank truck,” “trailer,” “trucks,” “tank truck or trailer,” “tank trucks or trailers,” and “trucks or trailers” throughout Rule 02D .0926. These terms were not previously defined in Rule 02D .0926. The effect of this change is to clarify that the rule applies to cargo tanks rather than the motor vehicles the tanks are attached to. This is clarifying in nature because the rule has always pertained to the stationary source emissions released from the cargo tanks attached to trucks and trailers, rather than the mobile source emissions from motor vehicles.

North Carolina has also made several modifications outside the definitions section in Paragraph (a) that similarly do not result in any changes to the meaning of the regulation. North Carolina has removed the date “May 1, 1993” from Paragraph (c) in Rule 02D .0926. Paragraph (c) previously required that owners or operators of bulk gasoline plants not transfer gasoline to any storage tanks after May 1, 1993, unless both the unloading cargo tank and the receiving stationary storage tank were equipped with an incoming vapor balance system and the receiving stationary storage tank was equipped with a fill line. North Carolina also removed the date “November 1, 2002,” in Paragraph (j) of the Rule, which set a deadline by which all tanks used at bulk gasoline plants must be painted. These dates, triggering their respective compliance requirements, have passed. Therefore, removal of these dates does not alter current regulatory requirements.

Another modification in the SIP revision that does not change the meaning of the regulation is in Paragraph (g). This paragraph requires that all gasoline bulk plants located in a nonattainment area for ozone comply with the control requirements outlined in Paragraphs (d) and (e), even if the average daily throughput falls below the applicable threshold. The proposed changes to the SIP-approved rule simply streamline the language to make it more succinct. An additional clarifying edit North Carolina made was to add the word “volatile” in front of “organic material” each time that phrase is used in Paragraph (i). Rule 02D .0926 has always regulated volatile organic compounds (VOCs), so this modification does not change the meaning of these provisions and simply provides a more accurate description of the regulated pollutants. Also, in Paragraph (n), North Carolina revised the sentence to provide clarity by including cross-references to the applicable SIP-approved rules rather than summarizing the nature of those rules. Specifically, the changes include adding complete citations for 15A NCAC 02D .0932 and .2615, which provide the regulatory requirements to certify a cargo tank as leak tight (.0932) and in compliance with testing requirements (.2615).

Next, North Carolina broadens the definition of “Bulk Gasoline Terminal” by referring to gasoline storage facilities that have an average daily throughput of “greater than or equal” to 20,000 gallons, rather than only “more” than 20,000 gallons.

The remaining changes to Rule 02D .0926 are primarily minor language edits, reformatting edits, and grammatical corrections. For example, one language modification concerns word preference and changes the word “usually” to “typically.” Another change capitalizes the words “vapor” and “pressure” in “Reid Vapor Pressure” and adds the abbreviation “(RVP)”.

For the reasons discussed above, these proposed changes to the SIP would not interfere with any applicable requirement concerning attainment of the national ambient air quality standards (NAAQS) and reasonable further progress, or any other applicable requirement of the Act. 5 Therefore, the EPA is proposing to approve the aforementioned changes to 02D .0926 into the North Carolina SIP.

North Carolina's April 13, 2021, SIP revision includes changes to Rule 02D .0927, Bulk Gasoline Terminals, by adding two definitions, removing one, clarifying some requirements, and making general grammar and formatting updates. 6 The EPA provides further detail below concerning the proposed changes to Rule 02D .0927.

North Carolina has added two definitions and removed one in Rule 02D .0927. First, in Paragraph (a), North Carolina has added a definition for the term “Pipeline breakout station” and consequently removed the term “Breakout tank” and its definition, which referred to singular storage tanks rather than the facilities containing storage tanks along pipelines. This change clarifies which specific breakout tanks are regulated by Rule 02D .0927 ( i.e., those located along bulk gasoline terminal pipelines). 7 The addition of “Pipeline breakout station” and removal of “Breakout tank” has no effect on emissions as the change only provides more specificity as to where the tanks that were already regulated by the Rule are located. Lastly, like Rule 02D .0926, North Carolina has added a definition for “Cargo tank”. The term cargo tank replaces the same terms in Rule 02D .0927 that are replaced in Rule 02D .0926. The addition of “cargo tank” is clarifying in nature for the same reasons outlined in Section II.A, above. The terms in Paragraph 02D .0927(a) have consequently been renumbered to account for these changes.

North Carolina made several clarifying edits to Rule 02D .0927 outside the definitions section in Paragraph (a) which similarly do not change the meaning of the regulation. In Paragraph (c), North Carolina has clarified that the owner or operator of a bulk gasoline terminal must obtain and maintain records of a pre-installation certification from the manufacturer stating the vapor control efficiency of the system in use. In Paragraphs € and (f), North Carolina removed the initial compliance date of December 1, 2002. These paragraphs require the owner or operator of bulk gasoline terminals to paint all gasoline storage tanks white or silver and install an external floating roof tank as a self-supporting roof, such as a geodesic dome. The December 1, 2002, compliance date has passed; therefore, removal of this date does not alter current regulatory requirements.

Another clarifying edit specifies in Paragraph (a)(5) that “gasoline” refers to a petroleum distillate with an RVP of “4.0 psi or greater” instead of “four psia or greater.” The term “psia” is changed to “psi” which correctly specifies the RVP of gasoline and is consistent with the standard abbreviation in the CAA ( See, e.g., CAA section 211(h)). 8 Paragraph (p)(2) has also been reworded for clarity to ensure that records on inspections include findings detailing the location, nature, and severity of each leak. In Paragraph (k), North Carolina has added cross-references to other SIP-approved rules, specifically 15 NCAC 02D .0932 and .2615. This modification clarifies the meaning of what “certified leak tight” means for cargo tanks by referencing the regulatory requirements to certify a cargo tank is leak tight. North Carolina also changes a citation in the definition for “Leak” in Paragraph (a)(6). This citation for a reference method using a combustible gas detector to detect gas leaks was changed from 15A NCAC 02D .0940 to Appendix B of EPA-450/2-78-051. Since the new test method is identical to the previous reference, EPA finds this change acceptable.

The remaining changes to Rule 02D .0927 are primarily minor language edits, reformatting edits, and grammatical corrections. For example, one language edit throughout the rule changes the formatting of rules from using the phrase “Section” to “15A NCAC 02D”. Another edit concerns word preference and changes the word “usually” to “typically”.

For the reasons discussed above, these proposed changes to the SIP would not interfere with any applicable requirement concerning attainment of the NAAQS or any other applicable requirement of the Act. Therefore, the EPA is proposing to approve the aforementioned changes to 02D .0927 into the North Carolina SIP.

North Carolina's April 13, 2021, SIP revision includes changes to 15A NCAC 02D .0932, Gasoline Cargo Tanks and Vapor Collection Systems, which was revised to update definitions, revise the acceptable methods for certification, revise recordkeeping requirements, remove obsolete language, correct grammar, and update the format of references.

North Carolina has added two definitions and removed two definitions. First, as with Rules 02D .0926 and 02D .0927, North Carolina has added a definition for “Cargo tank” and replaced several terms throughout Rule 02D .0932 with the term “cargo tank.” This definition replaces the definition for “Truck tank,” which also referred to the same storage containers used to transport gasoline; however, the change more accurately describes the storage vessels that the rule applies to. The EPA preliminarily finds this change to be clarifying in nature for the same reasons outlined in Section II.A, above. North Carolina has also replaced the definition of “Truck tank vapor collection equipment” with a definition of “Cargo tank vapor collection equipment” to identify what exactly constitutes the vapor collection equipment. The new definition is identical to the old one except for specifying that the term now refers to the vapor collection equipment for cargo tanks rather than the equipment for truck tanks. As the new definition more accurately identifies what the Rule applies to, EPA finds these changes to be clarifying in nature. Paragraph (a) has been renumbered and reformatted to account for these changes.

North Carolina has also modified the definition of “Certified Facility,” which it has renamed as “Cargo tank testing facility” for consistency with the newly added definitions. The new definition removes a cross-reference to Rule 02D .0960, which is not in the SIP and required certification via a sticker that gasoline cargo tanks had passed an EPA Appendix A Method 27 (Method 27) ( see 40 CFR 63.425) leak tightness test. Instead, North Carolina is modifying Paragraph (a)(5) of this rule to cite to Subpart F of 49 CFR part 107. The modification would require cargo tank testing facilities to comply with the registration requirements outlined in Subpart F of 49 CFR part 107. As explained in further detail in Section II.D below, the EPA is proposing to approve a modification to Rule 02D .2615 that would require the use of either a Method 27 test or a 49 CFR 180.407 test for leak tightness. 9 The effect of these modifications is to eliminate the North Carolina specific stickers certifying compliance with Method 27, and instead require certification via a USDOT inspection sticker that signifies the gasoline cargo tank passed either the Method 27 or 49 CFR 180.407 leak test. 10 11 The Federal Motor Carrier Safety Administration (FMCSA) program oversees cargo tank testing facilities that conduct these tests as a part of the USDOT inspection. The USDOT inspection uses either the 49 CFR 180.407 leak test or Method 27 to test for leak tightness. Allowing owners and operators of gasoline cargo tanks to rely on the USDOT inspection sticker to signify passing the leak test would eliminate a duplicative requirement that owners and operators go through North Carolina specific inspections in addition to USDOT inspections. The EPA preliminarily finds this change approvable because the modification is consistent with changes to the other rules in this notice and will not impact air quality because the alternative test is at least as stringent as Method 27, as discussed in Section II.D of this notice of proposed rulemaking (NPRM). Therefore, the change will not interfere with attainment and maintenance of the NAAQS or any other applicable requirement of the Act.

North Carolina has also made a modification to the Rule that clarifies the meaning of Paragraph (c)(1). In Paragraph (c)(1), cross references to Rule 02D. 0912 and Section 02D .2600 are removed and replaced with a cross reference to Rule 02D .2615. The modification requires a gasoline cargo tank to be certified to be leak tight pursuant to the test procedures outlined in Rule 02D .2615 and removes a reference to Rule 02D .0912. These changes are not substantive because Rule 02D .0912 requires owners or operators of VOC sources to demonstrate compliance by the methods described in Section 2600, and Rule 02D .2615 is the only rule in Section 2600 applicable to Rule 02D .0932.

North Carolina has also made changes to Paragraphs (c) and (d) that modify the meaning of those provisions. First, in Paragraphs (c)(5)(A) through (H), which contain recordkeeping requirements, North Carolina has updated the information required for recordkeeping. The changes to the recordkeeping requirements update the paragraph to account for the 49 CFR 180.407 test for leak tightness, include a requirement to provide information concerning any corrective repairs made to the cargo tank, and remove the reference to North Carolina specific inspection stickers certifying compliance with Method 27, consistent with the change discussed above eliminating the state sticker requirement. Additionally, the changes require more information in the leak test records, including but not limited to: (1) contact information of the cargo tank testing facility, (2) the name and signature of the individual performing the leak test as well as the owner of the tank, (3) the identification number of the tank, (4) documentation of the test date and results, and (5) other information. The new recordkeeping requirements will comprehensively cover the required information to determine whether cargo tanks comply with either Method 27 or 49 CFR 180.407. North Carolina has also modified Paragraph (d)(4) to now require the Director to allow less frequent monitoring if no more than 10 leaks are found after two complete annual checks and require more frequent monitoring if more than 20 leaks are found. These requirements were previously discretionary, and the Director could decide whether to require less or more monitoring. The EPA is proposing to approve this change because it requires more frequent monitoring if more than 20 leaks are found and because the SIP currently allows the Director to require less frequent monitoring if no more than 10 leaks are found.

The remaining changes to Rule 02D .0927 are primarily minor language edits, reformatting edits, and grammatical corrections. For example, North Carolina removed the words “that is” from the phrase “that is flush” in describing how an opening in a storage tank is connected to the tank bottom. Another change replaces the terminology “breakout tanks” with “pipeline breakout stations” to reflect the change in terminology in 02D .0927. North Carolina has also reformatted how it refers to rules, changing “Rule .2615” to “15A NCAC 02D .2615,” for example.

For the reasons discussed above, these proposed changes to the SIP would not interfere with any applicable requirement concerning attainment of the NAAQS or any other applicable requirement of the Act. Therefore, EPA is proposing to approve the aforementioned changes to Rule 02D .0932 into the North Carolina SIP.

North Carolina's April 13, 2021, SIP revision includes changes to 15A NCAC 02D .2615, Determination of Leak Tightness and Vapor Leaks. Specifically, these changes include adding a new test procedure to determine the leak tightness of cargo tanks, updating a website reference, and updating the formatting of rule references.

As mentioned in Section II.C, the SIP revision includes changes to Rule 02D .2615 to allow gasoline cargo tanks to obtain a leak test certification using the USDOT 49 CFR 180.407 methodology as an alternative to Method 27. This change, and the change to Rule 02D .0932(a)(5) discussed above, center on eliminating the North Carolina specific inspection stickers certifying the exclusive use of Method 27. This change allows gasoline cargo tanks receiving leak test certification to be tested using either the Method 27 or the USDOT 49 CFR 180.407 methodology. Once a cargo tank has passed either leak test, the owner or operator of the cargo tank must display a USDOT inspection sticker signifying the gasoline cargo tank has passed. This SIP-approved rule and the proposed change, if approved by the EPA, do not impact the applicability of any federal standards that cover these sources independent of the SIP such as New Source Performance Standards and National Emission Standards for Hazardous Air Pollutants. These sources must also comply with those federal standards. As an example, 40 CFR part 60, subpart XX, Standards of Performance for Bulk Gasoline Terminals, requires each gasoline tank truck subject to this federal rule to have vapor tightness documentation on file and updated at least once per year to reflect current test results as determined by Method 27. See 40 CFR 60.505(b). Thus, any gasoline tank truck subject to subpart XX must annually determine its vapor tightness using EPA Reference Method 27, and no other testing options are available for meeting the vapor tightness documentation requirement of subpart XX.

The purpose of the Method 27 and USDOT leak tests is to detect tank leaks of volatile vapors ( i.e., fugitive VOCs) while under pressure during product loading. The USDOT tests are performed by certified inspectors registered with USDOT who are held to strict record keeping practices. See 49 CFR 180.409; 40 CFR 180.417. The registered inspectors perform both the USDOT leak test as well as the Method 27 test, which under 49 CFR 180.407, can be performed as an alternative for those cargo tanks equipped with vapor collection equipment dedicated to the transportation of petroleum distillate fuels. See 49 CFR 180.407(h)(2). The primary change to North Carolina's cargo tank certification program is to allow reliance on the certification of test facilities by the FMCSA, rather than to require reliance on a duplicative state-specific program to ensure that cargo tanks do not leak. USDOT and the North Carolina rule both will continue to require gasoline cargo tanks to be tested annually and certified leak tight.

North Carolina's SIP revision includes a demonstration showing that the tests are comparable in identifying repairs necessary to correct leaks and that the change does not interfere with any applicable requirement concerning attainment of the NAAQS or any other applicable requirement of the Act. The two leak test methods are similar in that each method requires the cargo tank to be pressurized to check for leaks. The main difference is that the USDOT method requires pressure testing of each chamber of a cargo tank, whereas Method 27 requires pressure testing of the whole tank by opening the chambers. 12 Although chamber by chamber pressure testing takes longer, it identifies leak locations for repair better than Method 27. Cargo tanks typically contain three or more chambers for fuel. The EPA anticipates that many gasoline cargo tanks in North Carolina will continue to use Method 27 since it takes less time than the USDOT method.

The EPA has reviewed the demonstration provided by North Carolina in the April 13, 2021, submittal and agrees that that rule changes would not increase VOC emissions  13 or interfere with attainment and maintenance of any NAAQS. Regarding the NAAQS pollutant ozone, North Carolina is a nitrogen oxide (NO X ) limited jurisdiction, which means ozone formation is limited to the amount of NO X available in the ambient air, not the amount of VOC. Therefore, EPA does not expect this to have an appreciable impact on ground level ozone formation. Furthermore, the proposed rule changes would have no impact on the direct emissions of any NAAQS pollutant.

For the reasons discussed above and in North Carolina's noninterference demonstration, the changes to Rule 02D .2615 would not interfere with any applicable requirement concerning attainment of the NAAQS or any other applicable requirement of the Act. The revised program will reduce the burden of a duplicative leak inspection for cargo tank owners as they will only be required to test and obtain a single certification sticker.

In this document, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference as discussed in paragraph II, A-D of this preamble. In accordance with the requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference the following North Carolina rules in 15A NCAC Subchapter 02D: Rule 02D .0926, Bulk Gasoline Plants (state effective November 1, 2020); Rule 02D .0927, Bulk Gasoline Terminals (state effective November 1, 2020); Rule 02D .0932, Gasoline Cargo Tanks and Vapor Collection Systems (state effective October 1, 2020); and Rule 02D .2615, Determination of Leak Tightness and Vapor Leaks (state effective October 1, 2020). The EPA has made, and will continue to make, these materials generally available at the EPA Region 4 office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

The EPA is proposing to approve North Carolina's April 13, 2021, SIP revision to incorporate changes to North Carolina's bulk gasoline plant, terminal, and vapor recovery system rules into the SIP. Specifically, EPA is proposing to approve the changes as described to 02D .0926, Bulk Gasoline Plants; 02D .0927, Bulk Gasoline Terminals; 02D .0932, Gasoline Cargo Tanks and Vapor Recovery Collection Systems; and 02D .2615, Determination of Leak Tightness and Vapor Leaks. EPA is proposing to approve these changes because they meet CAA requirements and would not interfere with any applicable requirement concerning attainment or reasonable further progress.

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

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

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

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

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

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

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

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

• 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.

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 as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, Feb. 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. The EPA defines environmental justice (EJ) 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.”

NCDEQ did not evaluate EJ considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. The EPA did not perform an EJ analysis and did not consider EJ in this proposed action. Due to the nature of the action being proposed here, this proposed action is expected to have a neutral to positive impact on the air quality of the affected area. Consideration of EJ is not required as part of this proposed action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving EJ for people of color, low-income populations, and Indigenous peoples.

EPA is proposing to approve changes to North Carolina's SIP that were provided to EPA through NCDAQ via a letter dated April 13, 2021. 1 Specifically, EPA is proposing to approve changes to 15A North Carolina Administrative Code (NCAC) Subchapter 02D, Section .0900, Volatile Organic Compounds (hereinafter referred to as Section .0900). 2 The April 13, 2021, revision to the North Carolina SIP transmits a few substantive changes and a number of changes that do not alter the meaning of the regulations such as clarifying changes, updated cross-references, and several ministerial language changes. In addition, other changes include adding, deleting, and editing definitions and adding SIP-strengthening language.

North Carolina's Section .0900 rules regulate sources that emit greater than or equal to 15 pounds of VOC per day, unless otherwise specified in Section .0900. Most of the SIP changes to Section .0900 are ministerial and formatting changes, with clarifying changes throughout. EPA is proposing to approve the changes to Rules .0901, Definitions; .0902, Applicability; .0903, Recordkeeping: Reporting: Monitoring; .0906, Circumvention; .0909, Compliance Schedules for Sources in Ozone Nonattainment and Maintenance Areas; .0912, General Provisions on Test Methods and Procedures; .0918, Can Coating; .0919, Coil Coating; .0922, Metal Furniture Coatings; .0923, Surface Coating of Large Appliance Parts; .0924, Magnet Wire Coating; .0925, Petroleum Liquid Storage in Fixed Roof Tanks; .0928, Gasoline Service Stations Stage 1; .0930, Solvent Metal Cleaning; .0931, Cutback Asphalt; .0933, Petroleum Liquid Storage in External Floating Roof Tanks; .0935, Factory Surface Coating of Flat Wood Paneling; .0937, Manufacture of Pneumatic Rubber Tires; .0943, Synthetic Organic Chemical and Polymer Manufacturing; .0944, Manufacture of Polyethylene: Polypropylene and Polystyrene; .0945 Petroleum Dry Cleaning; .0947, Manufacture of Synthesized Pharmaceutical Products; .0948, VOC Emissions from Transfer Operations; .0949, Storage of Miscellaneous Volatile Organic Compounds; .0951, RACT For Sources of Volatile Organic Compounds; .0955, Thread Bonding Manufacturing; .0956, Glass Christmas Ornament Manufacturing; .0957, Commercial Bakeries; .0961, Offset Lithographic Printing and Letterpress Printing; .0962, Industrial Cleaning Solvents; .0963, Fiberglass Boat Manufacturing Materials; .0964, Miscellaneous Industrial Adhesives; .0965, Flexible Package Printing; .0966, Paper, Film and Foil Coatings; .0967, Miscellaneous Metal and Plastic Parts Coatings; and .0968, Automobile and Light Duty Truck Assembly Coatings . 3 EPA's analysis of each aforementioned rule change included in the April 13, 2021, SIP revision is below:

Rule .0901 includes definitions that apply to Section .0900 rules. The April 13, 2021, revision does not include any substantive changes to Rule .0901 but includes only minor wording, formatting, administrative and technical changes, e.g., in the definition of “loading rack,” changing a reference to “tank truck or trailer” to “cargo tank,” which corresponds to the addition of the definition of “cargo tank” in Rule .0926. 4 Changes to Rule .0901 also include updates to American Society for Testing and Materials (ASTM) and American Petroleum Institute (API) bulletin references that are appropriate because the references have become outdated, incorporation by reference of an API document, and an update to the formatting of rule references.

The State of North Carolina originally adopted Rule .0901 in 1979. EPA most recently approved amendments to the state rule in North Carolina's SIP on May 9, 2013. See 78 FR 27065. EPA is proposing to approve the April 13, 2021, SIP revision with respect to Rule .0901 because, as minor, non-substantive changes, they will not impact air quality and thus will not interfere with any applicable Clean Air Act (CAA or Act) requirements. 5

Rule .0902 outlines the applicability parameters for Section .0900 rules. The April 13, 2021, revision does not include any substantive changes to Rule .0902 but includes minor changes to update the formatting of rule references and makes minor wording changes including changing “truck tanks” to “cargo tanks,” which corresponds to the addition of the definition of “cargo tank” in Rule .0926. 6 Rule .0902(c) is changed to refer to exclusions found in Rule .0902(d) instead of Rule .0902(d)(1). Rule .0902(d)(2) is not currently approved into the North Carolina SIP. Because the Rule .0902(d) reference effectively includes only Rule .0902(d)(1) for SIP purposes, EPA is proposing to approve the revised version of Rule .0902(c) except as it refers to Rule .0902(d)(2). Also, Rule .0902(f) adds the date January 2, 2014, for clarification related to identifying certain moderate nonattainment areas required to address Control Technique Guidelines (CTGs).

The State of North Carolina originally adopted Rule .0902 in 1979. EPA most recently approved amendments to the state rule in North Carolina's SIP on July 25, 2013. See 78 FR 44890. EPA is proposing to approve the April 13, 2021, updates to Rule .0902 because, as minor, non-substantive changes, they will not impact air quality and thus they will not interfere with any applicable CAA requirements.

Rule .0903 outlines the recordkeeping, reporting, and monitoring requirements for Section .0900 rules. The April 13, 2021, revision does not include substantive changes to Rule .0903 but only makes minor grammatical edits and updates the formatting of a rule reference. These changes clarify the meaning of the previously SIP-approved version of the rule.

EPA most recently incorporated updates to Rule .0903 into the North Carolina SIP on July 25, 2013. See 78 FR 44890. EPA is proposing to approve the updates to Rule .0903 because, as minor, non-substantive changes, they will not impact air quality and thus they will not interfere with any applicable CAA requirements.

Rule .0906 outlines the restriction of concealing VOC emissions related to the Section .0900 rules. The April 13, 2021, revision does not include substantive changes to Rule .0906 but includes minor grammatical edits. These edits clarify but do not change the meaning of the previously SIP-approved version.

The State of North Carolina originally adopted Rule .0906 in 1979. EPA most recently approved amendments to the state rule in North Carolina's SIP on December 19, 1986. See 51 FR 45468. EPA is proposing to approve the April 13, 2021, updates to Rule .0906 because, as minor, non-substantive changes, they will not impact air quality and thus they will not interfere with any applicable CAA requirements.

Rule .0909 outlines compliance schedules for sources in ozone nonattainment areas and those nonattainment areas that have been redesignated to attainment ( i.e., maintenance areas), as they relate to the Section .0900 rules. The April 13, 2021, revision does not include substantive changes to Rule .0909 but includes minor grammatical and wording edits and updates the formatting of rule references. These changes clarify but do not change the meaning of the previously SIP-approved version of the rule.

The State of North Carolina originally adopted Rule .0909 in 1979. EPA most recently approved amendments to the state rule in North Carolina's SIP on July 25, 2013. See 78 FR 44890. EPA is proposing to approve the April 13, 2021, updates to Rule .0909 because, as minor, non-substantive changes, they will not impact air quality and thus they will not interfere with any applicable CAA requirements.

Rule .0912 outlines general provisions on test methods and procedures related to Section .0900 rules. The April 13, 2021, revision does not include substantive changes to Rule .0912 but includes minor grammatical edits and updates the formatting of a rule reference. These changes clarify but do not change the meaning of the previously SIP-approved version of the rule.

The State of North Carolina originally adopted Rule .0912 in 1979. EPA most recently approved amendments to the state rule in North Carolina's SIP on May 9, 2013. See 78 FR 27065. EPA is proposing to approve the April 13, 2021, updates to Rule .0912 because, as minor, non-substantive changes, they will not impact air quality and thus they will not interfere with any applicable CAA requirements.

Rule .0918 outlines VOC-related provisions for can coating operations in North Carolina. The April 13, 2021, revision does not include substantive changes to Rule .0918 but includes minor administrative, grammatical, and wording edits and updates the formatting of a rule reference. Also, Rule .0918 is revised to limit the applicability of Rule .0918(d) to sources controlling VOC prior to July 1, 2000, to reflect that, while Rule .0918 already references Rule .0518, Rule .0518 was repealed on July 1, 2000. These changes clarify but do not change the meaning of the previously SIP-approved version of the rule.

The State of North Carolina originally adopted Rule .0918 in 1979. EPA most recently approved amendments to the state rule in North Carolina's SIP on August 1, 1997. See 62 FR 41277. EPA is proposing to approve the April 13, 2021, updates to Rule .0918 because, as minor, non-substantive changes, they will not impact air quality and thus they will not interfere with any applicable CAA requirements.

Rule .0919 outlines VOC-related provisions for coil coating operations in North Carolina. The April 13, 2021, revision does not include substantive changes to Rule .0919 but includes minor administrative and clarifying word changes, e.g., a change to clarify that Rule .0919 applies to VOC that come from coating applicators. Also, Rule .0919 is revised to limit the applicability of Rule .0919(d) to sources controlling VOC prior to July 1, 2000, to reflect that, while Rule .0919 already references Rule .0518, Rule .0518 was repealed on July 1, 2000. These changes clarify but do not change the meaning of the previously SIP-approved version of the rule.

The State of North Carolina originally adopted Rule .0919 in 1979. EPA most recently approved amendments to the state rule in North Carolina's SIP on August 1, 1997. See 62 FR 41277. EPA is proposing to approve the April 13, 2021, updates to Rule .0919 because, as minor, non-substantive changes, they will not impact air quality and thus they will not interfere with any applicable CAA requirements.

Rule .0922 outlines VOC-related provisions for metal furniture coating operations in North Carolina. The April 13, 2021, revision does not include substantive changes to Rule .0922 but includes minor administrative and grammatical edits, updates the formatting of rule references, and updates references to federal regulations. These changes clarify but do not change the meaning of the previously SIP-approved version of the rule.

The State of North Carolina originally adopted Rule .0922 in 1979. EPA most recently approved amendments to the state rule in North Carolina's SIP on May 9, 2013. See 78 FR 27065. EPA is proposing to approve the April 13, 2021, updates to Rule .0922 because, as minor, non-substantive changes, they will not impact air quality and thus they will not interfere with any applicable CAA requirements.

Rule .0923 outlines VOC-related provisions for surface coating operations for large appliance parts in North Carolina. The April 13, 2021, revision does not include substantive changes to Rule .0923 but includes minor administrative and grammatical edits, updates the formatting of rule references, and updates references to federal regulations. These changes clarify but do not change the meaning of the previously SIP-approved version of the rule.

The State of North Carolina originally adopted Rule .0923 in 1979. EPA most recently approved amendments to the state rule in North Carolina's SIP on May 9, 2013. See 78 FR 27065. EPA is proposing to approve the April 13, 2021, updates to Rule .0923 because, as minor, non-substantive changes, they will not impact air quality and thus they will not interfere with any applicable CAA requirements.

Rule .0924 outlines VOC-related provisions for magnet wire coating operations in North Carolina. The April 13, 2021, revision does not include substantive changes to Rule .0924 but includes minor administrative and clarifying word changes, e.g., a change clarifies that Rule .0924 applies to VOC from the oven(s) of magnet wire coating operations. Also, Rule .0924 is revised to limit Rule .0924(d) to sources controlling VOC prior to July 1, 2000, to reflect that, while Rule .0924 already references Rule .0518, Rule .0518 was repealed July 1, 2000. These changes clarify but do not change the meaning of the previously SIP-approved version of the rule.

The State of North Carolina originally adopted Rule .0924 in 1979. EPA most recently approved amendments to the state rule in North Carolina's SIP on August 1, 1997. See 62 FR 41277. EPA is proposing to approve the April 13, 2021, updates to Rule .0924 because, as minor, non-substantive changes, they will not impact air quality and thus they will not interfere with any applicable CAA requirements.

Rule .0925 outlines VOC-related provisions for petroleum liquid storage in fixed roof tanks in North Carolina. The April 13, 2021, revision does not include substantive changes to Rule .0925 but makes minor administrative, grammatical, and wording edits, technical corrections such as changing vapor pressure “psia” to “pounds per square inch,” and updates to the formatting of rule references. These changes clarify but do not change the meaning of the previously SIP-approved version of the rule.

The State of North Carolina originally adopted Rule .0925 in 1979. EPA most recently approved amendments to the state rule in North Carolina's SIP on June 23, 1994. See 59 FR 32362. EPA is proposing to approve the April 13, 2021, updates to Rule .0925 because, as minor, non-substantive changes, they will not impact air quality and thus they will not interfere with any applicable CAA requirements.

Rule .0928 outlines VOC-related provisions for gasoline service stations stage 1 controls in North Carolina. The April 13, 2021, revision does not include substantive changes to Rule .0928 but makes minor administrative and grammatical edits, as well as technical corrections such as changing Reid vapor pressure “psia” to “pounds per square inch,” changing references to “tank trucks or trailers” to “cargo tanks” which corresponds to the addition of the definition of “cargo tank” in Rule .0926, 7 and changing “Dual point system” to “Dual point vapor recovery system.” Changes to Rule .0928 also alphabetize definitions and update the formatting of rule references. These changes clarify but do not change the meaning of the previously SIP-approved version of the rule.

The State of North Carolina originally adopted Rule .0928 in 1979. EPA most recently approved amendments to the state rule in North Carolina's SIP on August 1, 1997. See 62 FR 41277. EPA is proposing to approve the April 13, 2021, updates to Rule .0928 because, as minor, non-substantive changes, they will not impact air quality and thus they will not interfere with any applicable CAA requirements.

Rule .0930 outlines VOC-related provisions for solvent metal cleaning in North Carolina. The April 13, 2021, revision does not include substantive changes to Rule .0930 but includes minor administrative and grammatical edits and updates the formatting of rule references. These changes clarify but do not change the meaning of the previously SIP-approved version of the rule.

The State of North Carolina originally adopted Rule .0930 in 1979. EPA most recently approved amendments to the state rule in North Carolina's SIP on May 9, 2013. See 78 FR 27065. EPA is proposing to approve the April 13, 2021, updates to Rule .0930 because, as minor, non-substantive changes, they will not impact air quality and thus they will not interfere with any applicable CAA requirements.

Rule .0931 outlines VOC-related provisions for cutback asphalt in North Carolina. The April 13, 2021, revision includes substantive and non-substantive changes to Rule .0931. The substantive changes include adding paving roads, sidewalks, airfields, runways, taxiways, and parking aprons to the list of applicable purposes of the manufacture and use of cutback asphalts. The substantive changes also include the removal of an exclusion for cutback asphalt used for a tack coat for the purpose of patch work not to exceed 1672 square meters (2000 square yards). These substantive changes are approvable because they are considered SIP-strengthening. The non-substantive changes are minor administrative and grammatical edits including the removal of the definition of “Emulsified asphalt” (a term which does not appear elsewhere in Rule .0931 and thus seemingly need not be defined) and a minor technical clarification specifying that the Federal Aviation Administration (FAA) Weather Station referenced in paragraph (c) is the FAA Surface Weather Observation Station. These changes clarify and strengthen the previously SIP-approved version of the rule.

The State of North Carolina originally adopted Rule .0931 in 1979. EPA most recently approved amendments to the state rule in North Carolina's SIP on June 23, 1994. See 59 FR 32362. EPA is proposing to approve the April 13, 2021, updates to Rule .0931 because both the substantive and minor, non-substantive changes will not adversely impact air quality and thus will not interfere with any applicable CAA requirements.

Rule .0933 outlines VOC-related provisions for petroleum liquid storage in external floating roof tanks in North Carolina. The April 13, 2021, revision does not include substantive changes to Rule .0933 but includes minor administrative and grammatical edits, updates the formatting of rule references, and clarifies that the routine visual inspections referenced in paragraph (d) are done to verify the conditions of the seal. These changes clarify but do not change the meaning of the previously SIP-approved version of the rule.

The State of North Carolina originally adopted Rule .0933 in 1980. EPA most recently approved amendments to the state rule in North Carolina's SIP on May 9, 2013. See 78 FR 27065. EPA is proposing to approve the April 13, 2021, updates to Rule .0933 because, as minor, non-substantive changes, they will not impact air quality and thus they will not interfere with any applicable CAA requirements.

Rule .0935 outlines VOC-related provisions for factory surface coating of flat wood paneling operations in North Carolina. The April 13, 2021, revision does not include substantive changes to Rule .0935 but includes minor administrative and grammatical edits and updates the formatting of rule references. These changes clarify but do not change the meaning of the previously SIP-approved version of the rule.

The State of North Carolina originally adopted Rule .0935 in 1980. EPA most recently approved amendments to the state rule in North Carolina's SIP on May 9, 2013. See 78 FR 27065. EPA is proposing to approve the April 13, 2021, updates to Rule .0935 because, as minor, non-substantive changes, they will not impact air quality and thus they will not interfere with any applicable CAA requirements.

Rule .0937 outlines VOC-related provisions for manufacture of pneumatic rubber tires in North Carolina. The April 13, 2021, revision does not include substantive changes to Rule .0937 but includes minor administrative and grammatical edits. These changes clarify but do not change the meaning of the previously SIP-approved version of the rule.

The State of North Carolina originally adopted Rule .0937 in 1980. EPA most recently approved amendments to the state rule in North Carolina's SIP on August 1, 1997. See 62 FR 41277. EPA is proposing to approve the April 13, 2021, updates to Rule .0937 because, as minor, non-substantive changes, they will not impact air quality and thus they will not interfere with any applicable CAA requirements.

Rule .0943 outlines VOC-related provisions for synthetic organic chemical and polymer manufacturing in North Carolina. The April 13, 2021, revision includes mostly non-substantive changes to Rule .0943, such as minor administrative and grammatical edits and updates to the formatting of rule references, which clarify but do not change the meaning of the previously SIP-approved version of the rule. The SIP revision also includes a substantive, SIP-strengthening change: in Rule .0943(i), the change from stating that the Director “shall” allow less frequent emissions monitoring to stating that the Director “may” allow it.

The State of North Carolina originally adopted Rule .0943 in 1985. EPA most recently approved amendments to the state rule in North Carolina's SIP on May 9, 2013. See 78 FR 27065. EPA is proposing to approve the April 13, 2021, updates to Rule .0943 because, as minor, non-substantive changes or strengthening changes, they will not negatively impact air quality and thus they will not interfere with any applicable CAA requirements.

Rule .0944 outlines VOC-related provisions for manufacture of polyethylene (polypropylene and polystyrene) in North Carolina. The April 13, 2021, revision does not include substantive changes to Rule .0944 but includes minor administrative and grammatical edits and updates the formatting of rule references. These changes clarify but do not change the meaning of the previously SIP-approved version of the rule.

The State of North Carolina originally adopted Rule .0944 in 1985. EPA most recently approved amendments to the state rule in North Carolina's SIP on November 19, 1986. See 51 FR 41786. EPA is proposing to approve the April 13, 2021, updates to Rule .0944 because, as minor, non-substantive changes, they will not impact air quality and thus they will not interfere with any applicable CAA requirements.

Rule .0945 outlines VOC-related provisions for petroleum dry cleaning in North Carolina. The April 13, 2021, revision includes mostly non-substantive changes to Rule .0945, such as minor administrative and grammatical edits and updates to the formatting of rule references, which clarify but do not change the meaning of the previously SIP-approved version of the rule. The SIP revision also includes a substantive, SIP-strengthening change: in Rule .0945(g), adding a retention requirement for records of compliance tests.

The State of North Carolina originally adopted Rule .0945 in 1985. EPA most recently approved amendments to the state rule in North Carolina's SIP on May 9, 2013. See 78 FR 27065. EPA is proposing to approve the April 13, 2021, updates to Rule .0945 because, as minor, non-substantive changes or strengthening changes, they will not negatively impact air quality and thus they will not interfere with any applicable CAA requirements.

Rule .0947 outlines VOC-related provisions for manufacture of synthesized pharmaceutical products in North Carolina. The April 13, 2021, revision does not include substantive changes to Rule .0947 but includes minor administrative and grammatical edits, updates the formatting of rule references and clarifies in paragraph (c) when controlling VOC emissions from synthesized pharmaceutical products manufacturing facility storage tanks that pressure/vacuum conservation tanks shall be set at plus or minus 0.8 inches of water instead of set at 0.8 inches of water. These changes clarify but do not change the meaning of the previously SIP-approved version of the rule.

The State of North Carolina originally adopted Rule .0947 in 1994. EPA most recently approved amendments to the state rule in North Carolina's SIP on May 5, 1995. See 60 FR 22283. EPA is proposing to approve the April 13, 2021, updates to Rule .0947 because, as minor, non-substantive changes, they will not impact air quality and thus they will not interfere with any applicable CAA requirements.

Rule .0948 outlines provisions for VOC emissions from transfer operations in North Carolina. The April 13, 2021, revision does not include substantive changes to Rule .0948 but makes minor administrative and grammatical edits such as changing “tank trucks, trailers” to “cargo tanks,” which corresponds to the addition of the definition of “cargo tank” in Rule .0926, and updates the formatting of rule references. These changes clarify but do not change the meaning of the previously SIP-approved version of the rule.

The State of North Carolina originally adopted Rule .0948 in 1994. EPA most recently approved amendments to the state rule in North Carolina's SIP on August 27, 2001. See 66 FR 34117. EPA is proposing to approve the April 13, 2021, updates to Rule .0948 because, as minor, non-substantive changes, they will not impact air quality and thus they will not interfere with any applicable CAA requirements.

Rule .0949 outlines provisions for storage of miscellaneous VOC in North Carolina. The April 13, 2021, revision does not include substantive changes to Rule .0949 but includes minor administrative and grammatical edits and updates the formatting of rule references. These changes clarify but do not change the meaning of the previously SIP-approved version of the rule.

The State of North Carolina originally adopted Rule .0949 in 1994. EPA most recently approved amendments to the state rule in North Carolina's SIP on August 27, 2001. See 66 FR 34117. EPA is proposing to approve the April 13, 2021, updates to Rule .0949 because, as minor, non-substantive changes, they will not impact air quality and thus they will not interfere with any applicable CAA requirements.

Rule .0951 outlines provisions for RACT for sources of VOC in North Carolina. The April 13, 2021, revision does not include substantive changes to Rule .0951 but includes minor administrative and grammatical edits and updates the formatting of rule references. These changes clarify but do not change the meaning of the previously SIP-approved version of the rule.

The State of North Carolina originally adopted Rule .0951 in 1994. EPA most recently approved amendments to the state rule in North Carolina's SIP on May 9, 2013. See 78 FR 27065. EPA is proposing to approve the April 13, 2021, updates to Rule .0951 because, as minor, non-substantive changes, they will not impact air quality and thus they will not interfere with any applicable CAA requirements.

Rule .0955 outlines VOC provisions for thread bonding manufacturing in North Carolina. The April 13, 2021, revision does not include substantive changes to Rule .0955 but includes minor administrative and grammatical edits and updates the formatting of rule references. These changes clarify but do not change the meaning of the previously SIP-approved version of the rule.

The State of North Carolina originally adopted Rule .0955 in 1995. EPA most recently approved amendments to the state rule in North Carolina's SIP on February 1, 1996. See 61 FR 3588. EPA is proposing to approve the April 13, 2021, updates to Rule .0955 because, as minor, non-substantive changes, they will not impact air quality and thus they will not interfere with any applicable CAA requirements.

Rule .0956 outlines VOC provisions glass Christmas ornament manufacturing in North Carolina. The April 13, 2021, revision does not include substantive changes to Rule .0956 but includes minor administrative and grammatical edits. These changes clarify but do not change the meaning of the previously SIP-approved version of the rule.

The State of North Carolina originally adopted Rule .0956 in 1995. EPA most recently approved amendments to the state rule in North Carolina's SIP on February 1, 1996. See 61 FR 54362. EPA is proposing to approve the April 13, 2021, updates to Rule .0956 because, as minor, non-substantive changes, they will not impact air quality and thus they will not interfere with any applicable CAA requirements.

Rule .0957 outlines VOC provisions at commercial bakeries in North Carolina. The April 13, 2021, revision does not include substantive changes to Rule .0957 but includes minor administrative and grammatical edits, updates the formatting of rule references, and clarifies that in paragraph (d) the reference to commercial baking ovens refers to ovens in commercial bakeries. These changes clarify but do not change the meaning of the previously SIP-approved version of the rule.

The State of North Carolina originally adopted Rule .0957 in 1995. EPA most recently approved amendments to the state rule in North Carolina's SIP on February 1, 1996. See 61 FR 3588. EPA is proposing to approve the April 13, 2021, updates to Rule .0957 because, as minor, non-substantive changes, they will not impact air quality and thus they will not interfere with any applicable CAA requirements.

Rule .0961 outlines VOC-related provisions for offset lithographic printing and letterpress printing in North Carolina. The April 13, 2021, revision does not include substantive changes to Rule .0961 but makes minor administrative and wording changes, such as changing paragraph (h) to specify that alternative methods used to determine the VOC content must be consistent with 15A NCAC 02D .2602(h) and to specify that alternative methods used to determine the control efficiency by measuring volatile organic compounds at the control device inlet and outlet must be consistent with 15A NCAC 02D .2602(h). Changes to Rule .0961 also update the formatting of rule references.

The State of North Carolina originally adopted Rule .0961 in 2010. Rule .0961 was adopted to replace, in part, Rule .0936, Graphic Arts, which EPA removed from the SIP on May 9, 2013. See 78 FR 27065. EPA most recently approved amendments to the state rule (Rule .0961) in North Carolina's SIP on July 25, 2013. See 78 FR 44890. EPA is proposing to approve the April 13, 2021, updates to Rule .0961 because, as minor, non-substantive changes, they will not impact air quality and thus they will not interfere with any applicable CAA requirements.

Rule .0962 outlines VOC-related provisions for industrial cleaning solvents in North Carolina. The April 13, 2021, revision does not include substantive changes to Rule .0962 but makes minor administrative and wording changes, such as changing paragraph (c) to delete repealed Rules .0921, .0934, and .0936  8 from the list of rules that are exempt from paragraph (e) as it relates to cleaning material used for cleaning operations, and changes to Rule .0962 also update the formatting of rule references.

The State of North Carolina originally adopted Rule .0962 in 2010. EPA most recently approved amendments to the state rule in North Carolina's SIP on July 25, 2013. See 78 FR 44890. EPA is proposing to approve the April 13, 2021, updates to Rule .0962 because, as minor, non-substantive changes, they will not impact air quality and thus they will not interfere with any applicable CAA requirements.

Rule .0963 outlines VOC-related provisions for fiberglass boat manufacturing materials in North Carolina. The April 13, 2021, revision does not include substantive changes to Rule .0963 but makes minor administrative and wording changes such clarifying in paragraph (k) that SCAQMD Method 312-91 was developed by the South Coast Air Quality Management District and describes where to find information on this method, and changes to Rule .0963 that update the formatting of rule references.

The State of North Carolina originally adopted Rule .0963 in 2010. EPA most recently approved amendments to the state rule in North Carolina's SIP on May 9, 2013. See 78 FR 27065. EPA is proposing to approve the April 13, 2021, updates to Rule .0963 because, as minor, non-substantive changes, they will not impact air quality and thus they will not interfere with any applicable CAA requirements.

Rule .0964 outlines VOC-related provisions for miscellaneous industrial adhesives in North Carolina. The April 13, 2021, revision does not include substantive changes to Rule .0964 but makes minor administrative and wording changes such as, in paragraph (b), the deletion of the exemption from control of VOC emissions for miscellaneous industrial adhesives product categories covered by repealed Rules .0921, .0934, and .0936, 9 and changes to Rule .0964 that update the formatting of rule references.

The State of North Carolina originally adopted Rule .0964 in 2010. EPA most recently approved amendments to the state rule in North Carolina's SIP on May 9, 2013. See 78 FR 27065. EPA is proposing to approve the April 13, 2021, updates to Rule .0964 because, as minor, non-substantive changes, they will not impact air quality and thus they will not interfere with any applicable CAA requirements.

Rule .0965 outlines VOC-related provisions for flexible package printing operations in North Carolina. The April 13, 2021, revision does not include substantive changes to Rule .0965 but includes minor administrative and wording changes and updates the formatting of rule references.

The State of North Carolina originally adopted Rule .0965 in 2010. Rule .0965 was adopted to replace, in part, Rule .0936, Graphic Arts, which EPA removed from the SIP on May 9, 2013, which is also when EPA most recently approved amendments to the state rule (Rule .0965) in North Carolina's SIP. See 78 FR 27065. EPA is proposing to approve the April 13, 2021, updates to Rule .0965 because, as minor, non-substantive changes, they will not impact air quality and thus they will not interfere with any applicable CAA requirements.

Rule .0966 outlines VOC-related provisions for paper, film, and foil coating operations in North Carolina. The April 13, 2021, revision does not include substantive changes to Rule .0966 but includes minor administrative and wording changes and updates the formatting of rule references.

The State of North Carolina originally adopted Rule .0966 in 2010. Rule .0966 was adopted to replace, in part, Rule .0920, Paper Coatings, which EPA removed from the SIP on May 9, 2013, which is also when EPA most recently approved amendments to the state rule (Rule .0966) in North Carolina's SIP. See 78 FR 27065. EPA is proposing to approve the April 13, 2021, updates to Rule .0966 because, as minor, non-substantive changes, they will not impact air quality and thus they will not interfere with any applicable CAA requirements.

Rule .0967 outlines VOC-related provisions for miscellaneous metal and plastic parts coating operations in North Carolina. The April 13, 2021, revision does not include substantive changes to Rule .0967 but makes minor administrative and wording changes such as, in paragraph (c), the deletion of the exemption from this rule for sources covered by repealed Rules .0921 and .0936, 10 and changes to Rule .0967 that update the formatting of rule references.

The State of North Carolina originally adopted Rule .0967 in 2010. EPA most recently approved amendments to the state rule in North Carolina's SIP on May 9, 2013. See 78 FR 27065. EPA is proposing to approve the April 13, 2021, updates to Rule .0967 because, as minor, non-substantive changes, they will not impact air quality and thus they will not interfere with any applicable CAA requirements.

Rule .0968 outlines VOC-related provisions for automobile and light duty assembly coating operations in North Carolina. The April 13, 2021, revision does not include substantive changes to Rule .0968 but updates rule references and/or the formatting thereof. For example, paragraph (a) updates the reference for Automobile Topcoat Protocol from EPA-450/3-88-018 to EPA-453/R-08-002 or 40 CFR part 60, subpart MM. Also, changes to paragraph (d) clarify that the VOC emission limit is in grams of VOC per liter of coating excluding water and exempt compounds, as applied.

The State of North Carolina originally adopted Rule .0968 in 2010. EPA most recently approved amendments to the state rule in North Carolina's SIP on May 9, 2013. See 78 FR 27065. EPA is proposing to approve the April 13, 2021, updates to Rule .0968 because, as minor, non-substantive changes, they will not impact air quality and thus they will not interfere with any applicable CAA requirements.

In this document, 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 the North Carolina rules discussed in Section II. These regulations were state effective on November 1, 2020. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 4 office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

EPA is proposing to approve the April 13, 2021, SIP revision to incorporate various changes to North Carolina's VOC air provisions into the SIP. Specifically, EPA is proposing to approve various ministerial and minor changes to language and other clarifying changes throughout North Carolina's rules in 02D Section .0900, Volatile Organic Compounds. EPA is proposing to approve these changes for the reasons discussed above.

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Clean Air Act 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 Clean Air Act. 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); and

• 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 Clean Air Act;

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).

Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, Feb. 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. EPA defines environmental justice (EJ) 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.” 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.”

The NCDAQ did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA did not perform an EJ analysis and did not consider EJ in this action. Due to the nature of the action being taken here, this action is expected to have a neutral to positive impact on the air quality of the affected area. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.

Throughout this document “we,” “us,” and “our” means the EPA.

On February 22, 2013, the EPA issued a Federal Register proposed rulemaking action outlining EPA's policy at the time with respect to SIP provisions related to periods of SSM. The EPA analyzed specific SSM SIP provisions and explained how each one either did or did not comply with the CAA with regard to excess emission events. 1 For each SIP provision that EPA determined to be inconsistent with the CAA, EPA proposed to find that the existing SIP provision was substantially inadequate to meet CAA requirements and thus proposed to issue a SIP call under CAA section 110(k)(5). On September 17, 2014, EPA issued a document supplementing and revising what the Agency had previously proposed on February 22, 2013, in light of a D.C. Circuit decision that determined the CAA precludes authority of the EPA to create affirmative defense provisions applicable to private civil suits. EPA outlined its updated policy that affirmative defense SIP provisions are not consistent with CAA requirements. The EPA proposed in the supplemental proposal document to apply its revised interpretation of the CAA to specific affirmative defense SIP provisions and proposed SIP calls for those provisions where appropriate (79 FR 55920, September 17, 2014).

On June 12, 2015, pursuant to CAA section 110(k)(5), EPA finalized “State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls To Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown and Malfunction,” (80 FR 33839) June 12, 2015, hereafter referred to as the “2015 SSM SIP Action.” The 2015 SSM SIP Action clarified, restated, and updated EPA's interpretation that SSM exemption and affirmative defense SIP provisions are inconsistent with CAA requirements. The 2015 SSM SIP Action found that certain SIP provisions in 36 states, including Louisiana, were substantially inadequate to meet CAA requirements and issued a SIP call to those states to submit SIP revisions to address the inadequacies. EPA established an 18-month deadline by which the affected states had to submit such SIP revisions. States were required to submit corrective revisions to their SIPs in response to the SIP calls by November 22, 2016.

EPA issued a Memorandum in October 2020 (2020 Memorandum), which stated that certain provisions governing SSM periods in SIPs could be viewed as consistent with CAA requirements. 2 Importantly, the 2020 Memorandum stated that it “did not alter in any way the determinations made in the 2015 SSM SIP Action that identified specific state SIP provisions that were substantially inadequate to meet the requirements of the Act.” Accordingly, the 2020 Memorandum had no direct impact on the SIP call issued to Louisiana in 2015. The 2020 Memorandum did, however, indicate EPA's intent at the time to review SIP calls that were issued in the 2015 SSM SIP Action to determine whether EPA should maintain, modify, or withdraw particular SIP calls through future agency actions.

On September 30, 2021, EPA's Deputy Administrator withdrew the 2020 Memorandum and announced EPA's return to the policy articulated in the 2015 SSM SIP Action (2021 Memorandum). 3 As articulated in the 2021 Memorandum, SIP provisions that contain exemptions or affirmative defense provisions are not consistent with CAA requirements and, therefore, generally are not approvable if contained in a SIP submission. This policy approach is intended to ensure that all communities and populations, including overburdened communities, receive the full health and environmental protections provided by the CAA. 4 The 2021 Memorandum also retracted the prior statement from the 2020 Memorandum of EPA's plans to review and potentially modify or withdraw particular SIP calls. That statement no longer reflects EPA's intent.

EPA intends to implement the principles laid out in the 2015 SSM SIP Action as the agency takes action on SIP submissions, including the November 22, 2016, and June 9, 2017 Louisiana SIP submittals, provided in response to the 2015 SSM SIP Action.

Louisiana Administrative Code (LAC), Title 33 Environmental Quality, Part III, Air (LAC 33:III), Chapter 22 Control of Emissions of Nitrogen Oxides (NO X ) is applicable only to the Baton Rouge ozone nonattainment area and its Region of Influence (ROI). 5 LAC 33:III.2201.C(8) provides that point sources at an affected facility “are exempted” from the NO X emission limitations “during start-up and shutdown . . . or during a malfunction.” LAC 33:III.2201.C(8) was originally approved by the EPA into the Louisiana SIP on September 27, 2002 (67 FR 60877) and became federally effective on October 27, 2002. As a part of the EPA's 2015 SSM SIP Action, the EPA made a finding that LAC 33:III.2201.C(8) of the Louisiana SIP is substantially inadequate to meet CAA requirements and issued a SIP call with respect to this provision because it provided for an automatic exemption. 6

In response to the June 12, 2015 SSM SIP Action, LDEQ repealed section LAC 33:III.2201.C(8) under the State law and added a new section, LAC 33:III.2201.K. Startup and Shutdown, in its place. 7 The November 22, 2016, SIP submittal as supplemented by the June 9, 2017 SIP submittal requested the removal of the SIP-called provision LAC 33:III.2201.C(8) and approval of LAC 33:III.2201.K into the SIP in its place. 8 As detailed in the Louisiana's June 9, 2017 SIP submittal, LAC 33:III.2201.K would require affected NO X sources to comply with either: (1) the applicable emission limitations and standards at all times, including periods of startup and shutdown; or (2) the applicable emission limitations and standards at all times, except during periods of startup and shutdown covered by work practice standards permissible under the rule. Thus, owners and operators of sources that would choose not to comply with the numeric emission limitations during periods of startup and shutdown would be allowed to comply with alternative work practice standards. The owner or operator would not have to select the same method of compliance for every affected point source and would be allowed to revise its selection of the method of compliance for one or more affected point sources by means of a permit modification. Any noncompliance with the emission limitations or with the alternative plan would be submitted in writing within 90 days of the end of each ozone season (May 1-September 30, inclusive) to the administrative authority.

Why we need to publish a rule. Under the Act, a species warrants listing if it meets the definition of an endangered species (in danger of extinction throughout all or a significant portion of its range) or a threatened species (likely to become endangered within the foreseeable future throughout all or a significant portion of its range). If we determine that a species warrants listing, we must list the species promptly and designate the species' critical habitat to the maximum extent prudent and determinable. We have determined that the Navasota false foxglove meets the definition of an endangered species; therefore, we are proposing to list it as such and proposing a designation of its critical habitat. Both listing a species as an endangered or threatened species and designating critical habitat can be completed only by issuing a rule through the Administrative Procedure Act rulemaking process (5 U.S.C. 551 et seq. ).

What this document does. We propose to list the Navasota false foxglove as an endangered species under the Act, and we propose the designation of critical habitat for the species.

The basis for our action. Under the Act, we may determine that a species is an endangered or threatened species because of any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We have determined that the Navasota false foxglove is endangered due to the following threats: the encroachment of woody vegetation (Factor A) and the demographic consequences of few (three) small populations (Factor E). Land use changes (Factor A), consequences from global climate change (Factors A and E), and the cumulative impacts from all of the above-mentioned influences are also impacting the species' status.

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

We 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) The species' biology, range, and population trends, including:

(a) Biological or ecological requirements of the species, including habitat requirements;

(b) Genetics and taxonomy;

(c) Historical and current range, including distribution patterns, including the locations of any additional populations of this species;

(d) Historical and current population levels, and current and projected trends; and

(e) Past and ongoing conservation measures for the species, its habitat, or both.

(2) Threats and conservation actions affecting the species, including:

(a) Factors that may be affecting the continued existence of the species, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors.

(b) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species.

(c) Existing regulations or conservation actions that may be addressing threats to this species.

(3) Additional information concerning the historical and current status of this species.

(4) Specific information on:

(a) The amount and distribution of Navasota false foxglove habitat;

(b) Any additional areas occurring within the range of the species, in Grimes and Tyler Counties, Texas, that should be included in the designation because they (i) are occupied at the time of listing and contain the physical or biological features that are essential to the conservation of the species and that may require special management considerations, or (ii) are unoccupied at the time of listing and are essential for the conservation of the species; and

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

(d) Whether occupied areas are adequate for the conservation of the species, as this will help us evaluate the potential to include areas not occupied at the time of listing. Additionally, please provide specific information regarding whether or not unoccupied areas would, with reasonable certainty, contribute to the conservation of the species and contain at least one physical or biological feature essential to the conservation of the species. We also seek comments or information regarding whether areas not occupied at the time of listing qualify as habitat for the species.

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

(8) Additional information regarding land ownership within the proposed critical habitat units

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

(10) Information on the extent to which the description of probable economic impacts in the draft economic analysis is a reasonable estimate of the likely economic impacts and any additional information regarding probable economic impacts that we should consider.

(11) Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act. If you think we should exclude any additional areas, please provide information supporting a benefit of exclusion.

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

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

Please note that submissions merely stating support for, or opposition to, the action under consideration without providing supporting information, although noted, do not provide substantial information necessary to support a determination. 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, and section 4(b)(2) of the Act directs that the Secretary shall designate critical habitat on the basis of the best scientific information 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.

Our final determination may differ from this proposal because we will consider all comments we receive during the comment period as well as any information that may become available after this proposal. Based on the new information we receive (and any comments on that new information), we may conclude that the species is threatened instead of endangered, or we may conclude that the species does not warrant listing as either an endangered species or a threatened species. For critical habitat, our final designation may not include all areas proposed, may include some additional areas that meet the definition of critical habitat, or may exclude some areas if we find the benefits of exclusion outweigh the benefits of inclusion and exclusion will not result in the extinction of the species. In our final rule, we will clearly explain our rationale and the basis for our final decision, including why we made changes, if any, that differ from this proposal.

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, in addition to announcing them in the Federal Register . The use of virtual public hearings is consistent with our regulations at 50 CFR 424.16(c)(3).

On June 25, 2007, we received a petition to list 475 species, including Navasota false foxglove, from Forest Guardians (now WildEarth Guardians). On December 16, 2009, we published a 90-day finding for 192 of those species, including the Navasota false foxglove (74 FR 66866). We found that there was substantial information indicating that listing the species may be warranted. The Navasota false foxglove was added to our national listing workplan with a target completion date of fiscal year 2023 for the 12-month finding. We completed a species status assessment for the species in 2022.

A species status assessment (SSA) team prepared an SSA report for the Navasota false foxglove. The SSA team was composed of Service biologists, in consultation with other species experts. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species.

In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review of listing actions under the Act, we solicited independent scientific review of the information contained in the Navasota false foxglove SSA report. We sent the SSA report to eight independent peer reviewers, including scientists, botanists, and consultants with a variety of expertise in rare plants, conservation and restoration, and fire management. We received review from two peer reviewers. Results of this structured peer review process can be found at https://regulations.gov under Docket No. FWS-R2-ES-2022-0156. In preparing this proposed rule, we incorporated the results of these reviews, as appropriate, into the SSA report, which is the foundation for this proposed rule.

As discussed in Peer Review, above, we received comments from two peer reviewers on the draft SSA report. We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding the information contained in the SSA report. The peer reviewers generally concurred with our methods and conclusions, and provided additional information, clarifications in terminology and discussions of genetic diversity, and other editorial suggestions.

Agalinis (false foxglove) is a genus of about 70 species in North, Central, and South America that until 2008 was aligned with members of the family Scrophulariaceae (figwort). In 2008, it was shown to be more closely related to Orobanchaceae (broomrape), which consists mostly of hemiparasitic plants (plants that obtain part of their food by parasitism; Pettengill and Neel 2008, p. 15).

Navasota false foxglove is a narrowly endemic, hemiparasitic, annual plant known from only two counties in southeast Texas (Grimes and Tyler Counties). Navasota false foxglove flowering begins in mid-September and is triggered by short days when there are fewer hours of sunlight (Reed et al. 2005, p. 7). Navasota false foxglove blooms from mid-September to October, and seeds mature from October to early November. Fruit maturation and seed dispersal occurs by November; other Agalinis fruit typically contains between 50 and 180 seeds (Cunningham and Parr 1990, p. 269). Plants are usually dead by December. This species is relatively hard to see when the plants are not in flower, and even during flowering times they can be hard to see across the landscape. They bloom every day in fall months, and flowers often drop by mid-afternoon of the same day. Navasota false foxglove require full sunlight and will not grow in solid stands of very dense vegetation (Strong and Williamson 2015, p. 6). The species occurs on rocky outcrops with well drained, shallow soils that have historically been ungrazed and unplowed.

Navasota false foxglove is an annual herb from a few fibrous roots, 11-36 inches (2.7-9.1 decimeters) tall, often tinged with purple, maroon, or bronze. The blooms are often purplish-pink in color. The leaves and general appearance of Navasota false foxglove resemble several other common false foxgloves that all have thin, thread-like leaves (Canne-Hilliker and Dubrule 1993, pp. 426-431).

Navasota false foxglove is hemiparasitic (a plant that possesses chlorophyll and typically carries out photosynthesis but is partially parasitic on the roots or shoots of a plant host), and little bluestem ( Schizachyrium scoparium ) is hypothesized to be one of the main plants that it parasitizes (Reed 2019 pers. comm.). Host plants provided needed nutrients for survival and reproduction of Navasota false foxglove, especially in drought years.

Navasota false foxglove is found in three populations in two counties in Texas and is most similar to Caddo false foxglove ( Agalinis caddoensis ), a species presumed extinct from Louisiana. The status of Navasota false foxglove as a distinct species was supported by DNA barcoding research (Pettengill and Neel 2010, entire), but the distinction and population genetics between the current sites in Grimes and Tyler Counties, Texas, have not been analyzed. The Grimes County and Tyler County populations are separated by more than 100 miles.

Land use has remained consistent since the populations were found. The private landowners have allowed the Service and other individuals from Texas A&M University to visit their property for surveys and implementing habitat management projects.

Section 4 of the Act (16 U.S.C. 1533) and the implementing regulations in title 50 of the Code of Federal Regulations set forth the procedures for determining whether a species is an endangered species or a threatened species, issuing protective regulations for threatened species, and designating critical habitat for endangered and threatened species. In 2019, jointly with the National Marine Fisheries Service, the Service issued a final rule that revised the regulations in 50 CFR part 424 regarding how we add, remove, and reclassify endangered and threatened species and the criteria for designating listed species' critical habitat (84 FR 45020; August 27, 2019). On the same day, the Service also issued final regulations that, for species listed as threatened species after September 26, 2019, eliminated the Service's general protective regulations automatically applying to threatened species the prohibitions that section 9 of the Act applies to endangered species (84 FR 44753; August 27, 2019).

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

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

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

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

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

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

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

However, the mere identification of any threat(s) does not necessarily mean that the species meets the statutory definition of an “endangered species” or a “threatened species.” In determining whether a species meets either definition, we must evaluate all identified threats by considering the 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.” Our implementing regulations at 50 CFR 424.11(d) set forth a framework for evaluating the foreseeable future on a case-by-case basis. The term “foreseeable future” extends only so far into the future as we can reasonably determine that both the future threats and the species' responses to those threats are likely. In other words, the foreseeable future is the period of time in which we can make reliable predictions. “Reliable” does not mean “certain”; it means sufficient to provide a reasonable degree of confidence in the prediction. Thus, a prediction is reliable if it is reasonable to depend on it when making decisions.

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

The SSA report documents the results of our comprehensive biological 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 report does not represent our decision on whether the species should be proposed for listing as an endangered or threatened species under the Act. However, it does 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.

To assess Navasota false foxglove viability, we used the three conservation biology principles of resiliency, redundancy, and representation (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency is the ability of the species to withstand environmental and demographic stochasticity (for example, wet or dry, warm or cold years), redundancy is the ability of the species to withstand catastrophic events (for example, droughts, large pollution events), and representation is the ability of the species to adapt over time to long-term changes in the environment (for example, climate conditions, pathogens). In general, species viability will increase with increases in resiliency, redundancy, and representation (Smith et al. 2018, p. 306). 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.

The following is a summary of the key results and conclusions from the SSA report; the full SSA report can be found at Docket No. FWS-R2-ES-2022-0156 on https://www.regulations.gov and at https://www.fws.gov/office/texas-coastal-ecological-services.

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

We evaluated the individual needs of Navasota false foxglove in terms of the resource needs and/or the circumstances that are necessary to complete each stage of the life cycle. The life history of Navasota false foxglove is closely tied to its specific habitat requirements for all stages of the species' life cycle. Table 1 summarizes the resources that are needed by life stage. For further information about any particular life stage or resource need, see chapter 2 of the SSA report (Service 2022, pp. 8-24).

We identify the species' needs in terms of redundancy and representation of the species. We evaluate the redundancy of this species by the number and distribution of Navasota false foxglove populations. Having multiple populations distributed across a larger area reduces the risk of catastrophic events that may affect one or more populations simultaneously, affecting the whole species. Fewer populations distributed narrowly across the species' range would increase catastrophic risk and lower redundancy. Representation of Navasota false foxglove is based on the presence of multiple, self-sustaining populations across the range of the species and their contributions to providing adaptive capacity to the species in the face of changing conditions. Navasota false foxglove requires a level of genetic diversity that enables the species to adapt to environmental change. We do not know if there is occupied habitat elsewhere within Grimes County, Tyler County, or other areas of Texas. Therefore, we do not know how many populations are necessary to provide sufficient redundancy and representation to the species.

Navasota false foxglove thrives in full sun along with its assumed host plant, little bluestem. This species thrives in full sun and on outcrops that are described as distinct islands surrounded by a sea of Post Oak Savannah (Canne-Hilliker and Dubrule 1993). Woody vegetation shades out areas of habitat that have previously provided full sun, inhibiting plant growth. Woody vegetation from surrounding savannahs, if not controlled, will invade these distinct islands of outcrops and reduce full sun conditions, which Navasota false foxglove needs to survive. Management, including prescribed fires, can prevent the invasion of woody vegetation and stimulate root growth of the host plant. Woody vegetation control has occurred in element occurrence (EO) 6674 (East), through both prescribed fires and mechanical removal; subsequent surveys revealed much higher numbers of individuals. Habitat improvements and prescribed fires have only occurred within EO 6674 (East), although woody vegetation occurs at the other two populations as well.

Navasota false foxglove has adapted to different types of disturbance including land clearing, road improvements, grazing, vegetation removal, and prescribed fire. Some disturbance types are beneficial; after a prescribed fire, the number of individuals the following survey year had more than doubled, indicating this species may be fire dependent. Although Navasota false foxglove may be able to persist through different types of disturbances, the species occurs in areas that are historically ungrazed and unplowed, indicating it is not tolerant of land use changes.

All three Navasota false foxglove populations are near developed roads or areas used for harvesting timber, areas that are vulnerable to actions such as road construction, grading, and other ground-moving activities. Grazing, another type of disturbance, has occurred on the Grimes West population of Navasota false foxglove, where evidence of hoof prints and livestock waste were observed. Individual livestock have not been present during visits to this site. While several individuals of Navasota false foxglove have been observed in these areas, trampling could occur, but because livestock grazing is limited and we know of no plans for it to increase, it likely does not pose a current threat to the species.

Climate change has already begun, and continued greenhouse gas emissions at or above current rates will cause further warming (Intergovernmental Panel on Climate Change (IPCC) 2013, pp. 11-12). Warming in the Southwest is expected to be greatest in the summer, and annual mean precipitation is very likely to decrease in the Southwest (IPCC 2013, pp. 11-12). In Texas, the number of extreme hot days (high temperatures exceeding 95 degrees Fahrenheit (°F)) are expected to double by around 2050 (Kinniburgh et al. 2015, p. 83).

The Fifth Assessment Report of the IPCC (2013, p. 23) projects the following changes by the end of the 21st century, relative to the 1986 to 2005 averages:

• It is virtually certain that most land areas will experience warmer and/or fewer cold days and nights;

• It is virtually certain that most land areas will experience warmer and/or more frequent hot days and nights;

• It is very likely that the frequency and/or duration of warm spells and heat waves will increase in most land areas;

• It is very likely that the frequency, intensity, and/or amount of heavy precipitation events will increase in mid-latitude land masses; and

• It is likely that the intensity and/or duration of droughts will increase on a regional to global scale.

Representative concentration pathways (RCPs) provide a framework for modelling in the next stages of scenario-based research for greenhouse gas emissions. These are plausible pathways toward reaching each target of time-evolving emissions or concentrations of radiatively active constituents (Moss et al. 2010, p. 752). RCPs provide scenarios that include time series of emissions and concentrations of greenhouse gases, aerosols, and chemically active gases. Within the term “representative concentration pathway,” the word “representative” signifies that each RCP provides only one of many possible scenarios that would lead to the specific radiative-forcing characteristics. The word “pathway” emphasizes that not only are the long-term concentration levels something to consider, but the possible outcomes of these trajectories over time (Moss et al. 2010, p. 752). RCP models provide one of many possible scenarios for future conditions based on specific radiative-forcing characteristics, for example, change in the concentration of carbon dioxide or the output of the sun. Two RCP scenarios were used in the SSA. One pathway was evaluated at RCP 4.5, where the radiative forces are stabilized at 4.5 watts per square meter by year 2100 and concentrations are constant after year 2150. The second pathway evaluated was RCP 8.5, where the radiative forces are greater than 8.5 watts per square meter by year 2100 and continue to rise.

Depending on timing and intensity of drought events, Navasota false foxglove could be adversely affected by increased mortality rates, reduced reproductive output due to loss or reduced vigor of mature plants, and reduced rates of seed germination and seedling recruitment. Increases in soil temperatures and soil moisture evaporation in response to predicted ambient warming could increase rates of soil seed bank depletion by increasing seedling mortality rates (Ooi 2012, pp. S54-S55) and diminish the resilience of Navasota false foxglove populations by reducing the species' ability to maintain soil seed banks. While climate has changed in recent decades in regions where the Navasota false foxglove occurs, the rate of change likely will continue to increase into the future.

The species retains the ability to rebound after drought, likely due to the seed bank responding to rewetted conditions. Reviewing the survey data from extreme drought years in Texas ( i.e., 2011, the driest year on record), abundance increased the year after the drought ended. Species specialists hypothesize that the seed bank provides resiliency by allowing the species to be dormant through dry years and then germinating in years when conditions are suitable. We do not have information regarding how long or how intense of a drought the species can withstand.

Of the three source features for Navasota false foxglove, all three EOs occur entirely on privately owned land. The owners of the land where the EO 6674 (East) population occurs protect the habitat for conservation purposes and voluntarily allow researchers and scientists on their property to conduct surveys. Employees of the Texas Parks and Wildlife Department and the Service, as well as researchers from Texas A&M University, have visited the EO 6674 (West) population several times. This population is not currently being managed for Navasota false foxglove, but it has new electric fencing to restrict cattle (as noted during the fall 2020 site visit). The EO 9000 source feature is currently owned by a timber company and has not been visited by biologists in several years. The habitat descriptions and locations of some other plant species specimens report the presence of Navasota false foxglove, but these locations have not been verified nor surveyed for Navasota false foxglove by specialists at this time.

It is very difficult to determine the population sizes and demographic trends of an annual plant with wide annual variation in the numbers of individuals that germinate from the seed bank, flower, and set seed. In the case of EOs that have multiple source features, seed germination pulses may not be synchronous at all source features; as the maximum numbers observed at different areas may occur in different years, the potential population size may be much greater than the numbers observed in an entire EO in any single year. However, the annual survey results for each EO represent the best available data from which to assess population size, and regardless of year-to-year variation, these populations are not large and occupy very small areas. Small, isolated populations are more vulnerable to catastrophic losses caused by random fluctuations in recruitment (demographic stochasticity) or variations in rainfall or other environmental factors (environmental stochasticity) (USFWS 2016, p. 20). Because these populations occur over such small areas, any event that affects a population is expected to affect the entire population, possibly resulting in extirpation. In addition to population size, it is likely that population density also influences resiliency, since reproduction requires genetically compatible individuals to be clustered within the forage ranges of the species' pollinators.

Population resiliency for the current condition of Navasota false foxglove was derived from two habitat factors (host plant availability, open canopy) and two demographic factors (population size and connectivity). To rank these four factors, we described conditions that were assumed to contribute to “high,” “moderate,” “low,” or “very low” levels of population resilience and provided each with a quantified rank of 3, 2, 1, or 0, respectively (see table 2, below). See chapter 4 of the SSA report for a full description of each factor (Service 2022, p. 27-32).

The available survey data for Navasota false foxglove are limited to “presence/absence,” and where population estimates are provided, the data are infrequent and generally incomparable because survey methodologies were not documented and changed over time. Therefore, we cannot determine if Navasota false foxglove population numbers are changing over time across the source features. In the absence of current survey data for some populations (EO 9000), it was assumed that if a historically known population site maintains habitat conditions conducive to the species, the population is presumed extant. Therefore, the current condition of the species may be overestimated.

The conservation principles of resiliency, redundancy, and representation were used to summarize the current condition site scores for Navasota false foxglove (see table 3, below). The resiliency of each source feature was based on the survey data and condition of the individual source features. Specifically, the site scores for the extant populations within each source feature considered the total number and size of extant populations in each area ( i.e., redundancy within the source feature), and other factors such as observed population size, specific local stressors, and available survey data. The species' redundancy and representation were assessed based on the distribution of the species. As mentioned above, there can be some uncertainty in population size of these source features. Our assessment of the species' needs determined that populations with fewer than 834 individuals are considered to have low resiliency (Table 2). Based on our survey results from the largest unit (Unit 1: E.O. 6674 (East)), there has not been a survey year with more than 834 individuals since the early 2000s. All three populations were ranked as a low for population size due to several years in a row of surveys with fewer than 834 individuals in all populations at each survey year. Additionally, canopy conditions and connectivity are moderate or low in all populations. Results of the current condition analysis indicate that none of the populations are in high condition, one is in moderate condition, and two are in low condition.

As part of the SSA, we also developed two future condition scenarios to capture the range of uncertainties regarding future threats and the projected responses by the Navasota false foxglove. Our scenarios assumed two different climate model scenarios and similar or increasing effects from the influences on species viability into the future. Because we determined that the current condition of the Navasota false foxglove is consistent with an endangered species (see Determination of Navasota False Foxglove's Status, below), we are not presenting the results of the future scenarios in this proposed rule. Please refer to the SSA report (Service 2022, p. 32-34) for the full analysis of future scenarios.

We note that, by using the SSA framework to guide our analysis of the scientific information documented in the SSA report, we have analyzed the cumulative effects of identified threats and conservation actions on the species. To assess the current and future condition of the species, we evaluate the effects of all the relevant factors that may be influencing the species, including threats and conservation efforts. Because the SSA framework considers not just the presence of the factors, but to what degree they collectively influence risk to the entire species, our assessment integrates the cumulative effects of the factors and replaces a standalone cumulative-effects analysis.

Section 4 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 in danger of extinction throughout all or a significant portion of its range, and a “threatened species” as a species likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act requires that we determine whether a species meets the definition of 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.

After evaluating threats to the species and assessing the cumulative effect of the threats under the Act's section 4(a)(1) factors, we determined that encroachment of woody vegetation (Factor A), disturbance (Factor A), consequences from climate change (Factors A and E), and the cumulative impacts from all of the above-mentioned influences are threats to the Navasota false foxglove's continued existence. Two of the three extant populations have low resiliency, which makes them much less likely to be able to withstand stochastic events such as drought and disturbance. The third population has moderate resiliency.

A narrow endemic, Navasota false foxglove has little redundancy and no adaptive capacity (representation), as it has few populations and is inherently at a higher risk of extinction. Simply being a narrow endemic does not, in and of itself, mean the species is in danger of extinction and should be listed. Because this species is a narrow endemic with few populations and population resiliency is either low (two of three populations) or moderate (third population), reduction in population resiliency can have an outsized influence on the species' overall viability. The E.O. records of Navasota false foxglove have been documented with a combined area of less than 2 acres. A single event, such as a prolonged drought or a single development project, could easily extirpate all or most of the remaining populations. Woody vegetation is currently negatively affecting the populations, and without woody vegetation removal or prescribed fire, the species could be reduced or eliminated from these areas that become shaded.

Population resiliency has presumably declined given the sparse number of individuals observed in recent surveys. The E.O. 9000 (Tyler) population has low resiliency and little to no connectivity to the other two populations, as it is greater than 100 miles away. Therefore, the likelihood of the E.O. 9000 (Tyler) population being able to recover from stochastic events, or be repopulated if it extirpated, is greatly reduced or eliminated.

The species as a whole possesses little adaptive capacity. The lack of connectivity and isolation of the populations has eliminated gene flow, and the species retains little ability to withstand environmental variation. As a whole, the species has limited representation and redundancy, and low to moderate resiliency of the populations, resulting in low species viability. Currently, Navasota false foxglove populations are extremely vulnerable to woody vegetation encroachment, disturbance, and environmental variation due to climate change, and the loss of a population could cascade into the extinction of the species. Thus, after assessing the best available information, we determine that the Navasota false foxglove is in danger of extinction throughout all of its range.

Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so within the foreseeable future throughout all or a significant portion of its range. We have determined that the Navasota false foxglove is in danger of extinction throughout all of its range and accordingly did not undertake an analysis of any significant portion of its range. Because the Navasota false foxglove warrants listing as endangered throughout all of its range, our determination does not conflict with the decision in Center for Biological Diversity v. Everson, 435 F. Supp. 3d 69 (D.D.C. 2020) ( Everson ), which vacated the provision of 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” (79 FR 37578; July 1, 2014) providing that if the Service determines that a species is threatened throughout all of its range, the Service will not analyze whether the species is endangered in a significant portion of its range.

Our review of the best available scientific and commercial information indicates that the Navasota false foxglove meets the Act's definition of an endangered species. Therefore, we propose to list the Navasota false foxglove as an endangered species in accordance with sections 3(6) and 4(a)(1) of the Act.

Conservation measures provided to species listed as endangered or threatened species under the Act include recognition as a listed species, planning and implementation of recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and conservation by Federal, State, Tribal, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies, including the Service, and the prohibitions against certain activities are discussed, in part, below.

The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Section 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.

The recovery planning process begins with development of a recovery outline made available to the public soon after a final listing determination. The recovery outline guides the immediate implementation of urgent recovery actions while a recovery plan is being developed. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) may be established to develop and implement recovery plans. The recovery planning process involves the identification of actions that are necessary to halt and reverse the species' decline by addressing the threats to its survival and recovery. The recovery plan identifies recovery criteria for review of when a species may be ready for reclassification from endangered to threatened (“downlisting”) or removal from protected status (“delisting”), and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the time and cost of implementing recovery tasks. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. If we list the Navasota false foxglove, its recovery outline, draft recovery plan, final recovery plan, and any revisions would be available on our website as they are completed ( https://www.fws.gov/program/endangered-species ), or from our Texas Coastal Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration ( e.g., restoration of native vegetation), research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands.

If this species is listed, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost-share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the State of Texas would be eligible for Federal funds to implement management actions that promote the protection or recovery of the Navasota false foxglove. Information on our grant programs that are available to aid species recovery can be found at: https://www.fws.gov/service/financial-assistance.

Although the Navasota false foxglove is only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for this species. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT ).

Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with the Service.

Examples of actions that may be subject to the section 7 processes are land management or other landscape-altering activities on Federal lands administered by the Service, as well as actions on State, Tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq. ) or a permit from the Service under section 10 of the Act) or that involve some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency). Federal actions not affecting listed species or critical habitat—and actions on State, Tribal, local, or private lands that are not federally funded, authorized, or carried out by a Federal agency—do not require section 7 consultation. Examples of Federal agency actions that may require consultation for the Navasota false foxglove could include any other landscape-altering activities on Federal lands administered by the Federal Highway Administration for any future construction and maintenance of roads or highways. Given the difference in triggers for conferencing and consultation, Federal agencies should coordinate with the local Service field office (see FOR FURTHER INFORMATION CONTACT , above) with any specific questions.

The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to endangered plants. The prohibitions of section 9(a)(2) of the Act, codified at 50 CFR 17.61, make it illegal for any person subject to the jurisdiction of the United States to: import or export; remove and reduce to possession from areas under Federal jurisdiction; maliciously damage or destroy on any such area; remove, cut, dig up, or damage or destroy on any other area in knowing violation of any law or regulation of any State or in the course of any violation of a State criminal trespass law; deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in the course of a commercial activity; or sell or offer for sale in interstate or foreign commerce an endangered plant. Certain exceptions apply to employees of the Service, other Federal land management agencies, and State conservation agencies.

We may issue permits to carry out otherwise prohibited activities involving endangered plants under certain circumstances. Regulations governing permits are codified at 50 CFR 17.62. With regard to endangered plants, a permit may be issued for scientific purposes or to enhance the propagation or survival of the species. The statute also contains certain exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.

It is our policy, as published in the Federal Register on July 1, 1994 (59 FR 34272), to identify to the maximum extent practicable at the time a species is listed those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of a proposed listing on proposed and ongoing activities within the range of the species proposed for listing. Based on the best available information, the following actions are unlikely to result in a violation of section 9, if these activities are carried out in accordance with existing regulations and permit requirements; this list is not comprehensive:

(1) Normal agricultural and silvicultural practices, including herbicide and pesticide use, that are carried out in accordance with any existing regulations, permit and label requirements, and best management practices; and

(2) Normal residential landscaping activities.

To the extent of what is currently known, trampling and other activities that would result in habitat disturbance would be considered likely to result in violation of section 9 of the Act in addition to what is already described in the prohibitions found at 50 CFR 17.61. Additional activities that will be considered likely to result in violation of section 9 of the Act may be identified during coordination with the local field office, Questions regarding whether specific activities would constitute violation of section 9 of the Act should be directed to the Texas Coastal Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

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

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

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

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

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

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

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

Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation also does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the Federal agency would be required to consult with the Service under section 7(a)(2) of the Act. However, even if the Service were to conclude that the proposed activity would likely result in destruction or adverse modification of the critical habitat, the Federal action agency and the landowner are not required to abandon the proposed activity, or to restore or recover the species; instead, they must implement “reasonable and prudent alternatives” to avoid destruction or adverse modification of critical habitat.

Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat).

Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Navasota false foxglove needs well drained soils, such as rocky outcrops and sandy loam over sandstone. Plants occupy open areas of the outcrops where sun exposure is nearly constant (no more than 10 to 15 percent shade), and populations have been found in areas that have been historically ungrazed and unplowed. Additionally, the species needs the presence of the presumed host plant, little bluestem, to provide nutrients during drought. When needed, Navasota false foxglove parasitizes and extracts resources from its host plant, little bluestem, for survival and reproduction.

We derive the specific physical or biological features essential to the conservation of Navasota false foxglove from studies of the species' habitat, ecology, and life history as described below. Additional information can be found in the SSA report (Service 2022, entire), which is available at https://www.regulations.gov under Docket No. FWS-R2-ES-2022-0156. We have determined that the following physical or biological features are essential to the conservation of Navasota false foxglove:

(1) Calcareous sandy to clay loam soils that are ungrazed, unplowed, shallow thin soils.

(2) Open prairie habitat with limited woody encroachment.

(3) Annual precipitation events that provide enough soil moisture to germinate.

(4) Full sun exposure (no more than 10 to 15 percent shade).

(5) Presence of the little bluestem ( Schizachyrium scoparium ) as host plant.

When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features which are essential to the conservation of the species and which may require special management considerations or protection. The features essential to the conservation of the species may require special management consideration or protection to reduce the threat of woody encroachment. Special management considerations or protection may be required within critical habitat areas to address these threats. Management activities that could ameliorate these threats include, but are not limited to, prescribed fire and manual removal of woody encroachment. These management activities would protect the physical or biological features for the species by opening up the habitat for more sunlight and expanding the habitat area for the species' survival. Additionally, these management activities would help increase potential habitat and allow for an expanded seed bank for this species.

As required by section 4(b)(2) of the Act, we use the best scientific data available to designate critical habitat. In accordance with the Act and our implementing regulations at 50 CFR 424.12(b), we review available information pertaining to the habitat requirements of the species and identify specific areas within the geographical area occupied by the species at the time of listing and any specific areas outside the geographical area occupied by the species to be considered for designation as critical habitat. While the Navasota false foxglove needs additional areas to increase viability of the species, we are not currently proposing to designate any areas outside the geographical area occupied by the species because we have not identified any unoccupied areas that meet the definition of critical habitat. We are aware of no areas from which the species has been extirpated, and we do not currently have information sufficient to determine which other areas may be suitable for the species. We are proposing to designate critical habitat in areas within the geographical area occupied by the species at the time of listing. Within the three currently occupied areas, the physical or biological features that are common across all habitat types are limited woody encroachment, full sun exposure, host plants, and annual precipitation events that provide enough soil moisture to germinate. The Oakville formation and Catahoula formation make up the rocky outcrop component within the occupied areas along with fine sandy loam, sandy loam, and clay soils.

In summary, for areas within the geographical area occupied by the species at the time of listing, we delineated critical habitat unit boundaries using the following criteria:

The three critical habitat unit boundaries are directly related to the presence of the species on the ground. The EO 6674 (East) unit boundaries were refined by survey data from the fall of 2021. The EO 6674 (West) and EO 9000 critical habitat unit boundaries were refined by using areas of presumed occupancy and information about suitable soil type and drainage compatible to the species, due to the lack of more recent survey data.

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

We propose to designate as critical habitat lands that we have determined are occupied at the time of listing ( i.e., currently occupied) and that contain one or more of the physical or biological features that are essential to support life-history processes of the species. We are not aware of any additional historical locations where the species was found. Additionally, we are unable to identify suitable areas that would meet the species' needs outside of its currently occupied range. Of areas that we analyzed as potentially suitable areas, we concluded that we had no information to suggest any areas would contribute to the long-term conservation of the species. We have concluded that no unoccupied areas meet the definition of critical habitat.

All three units in Grimes and Tyler Counties, Texas, are proposed for designation based on one or more of the physical or biological features being present to support Navasota false foxglove's life-history processes. All three units in Grimes and Tyler Counties contain all of the identified physical or biological features and support multiple life-history processes.

The proposed critical habitat designation is defined by the map or maps, as modified by any accompanying regulatory text, presented at the end of this document under Proposed Regulation Promulgation. We include more detailed information on the boundaries of the critical habitat designation in the preamble of this document. We will make the coordinates or plot points or both on which each map is based available to the public on https://www.regulations.gov at Docket No. FWS-R2-ES-2022-0156 and on our internet site at https://www.fws.gov/office/texas-coastal-ecological-services.

We are proposing approximately 1.9 acres (ac) (0.8 hectares (ha)) in three units as critical habitat for the Navasota false foxglove. The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for the Navasota false foxglove. The three areas we propose as critical habitat are: (1) EO 6674 (East) Unit, (2) EO 6674 (West) Unit, and (3) EO 9000 (Tyler) Unit. Table 4 shows the proposed critical habitat units and the approximate area of each unit.

Unit 1 consists of 0.8 ac (0.3 ha) and is located 4 miles just to the northeast of the town of Navasota, in Grimes County, Texas. Unit 1 is completely on private land and can be accessed by a public road. Farm to Market Road 3090 runs along the eastern side of this unit, and a portion of the unit is within the Texas Department of Transportation right-of-way. Unit 1 consists of rolling hills with a rocky outcrop (Oakville Formation) and well-drained soils. The area has edges of woody vegetation that give way to open areas of full sunlight. This unit is occupied and has been since the initial identification of the Navasota false foxglove in 1993. It contains all of the physical or biological features needed for the Navasota false foxglove. Special management considerations may be required to reduce encroachment from woody vegetation to maintain open prairie and full sun exposure.

Unit 2 consists of 0.5 ac (0.2 ha) and is located about 3.5 miles northeast of the town of Navasota, in Grimes County, Texas. This area is occupied and located about 0.9 miles to the west of Unit E.O. 6674 (East). The unit occurs along the Oakville formation that extends across southeast Texas. This formation gives way to rocky outcrop areas that have well-drained soils and areas of rolling hills. This unit is just off County Road 403 in Grimes County and is owned by private landowners. The area has been leased to a cattle association since 2019. It contains all of the physical or biological features needed for the Navasota false foxglove. Special management considerations may be required to reduce encroachment from woody vegetation to maintain open prairie and full sun exposure.

Unit 3 consists of 0.6 ac (0.2 ha) and is located approximately 7 miles to the northwest of Colmesneil, Texas, in Tyler County. This area is occupied along a roadside right-of-way. This site is more than 100 miles to the northeast of Units 1 and 2 in Grimes County. This site is located on the Catahoula formation along with rolling hills, well-drained soils, and timber activity. This site has previously been harvested for timber and is currently owned by a timber company. This site is located just along the roadside of County Road 2845. It contains all of the physical or biological features needed for the Navasota false foxglove. Special management considerations may be required to reduce encroachment from woody vegetation to maintain open prairie and full sun exposure.

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

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

Compliance with the requirements of section 7(a)(2) is documented through our issuance of:

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

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

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

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

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

(3) Are economically and technologically feasible, and

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

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

Regulations at 50 CFR 402.16 set forth requirements for Federal agencies to reinitiate consultation if any of the following four conditions occur: (1) the amount or extent of taking specified in the incidental take statement is exceeded; (2) new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered; (3) the identified action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the biological opinion or written concurrence; or (4) a new species is listed or critical habitat designated that may be affected by the identified action. The reinitiation requirement applies only to actions that remain subject to some discretionary Federal involvement or control. As provided in 50 CFR 402.16, the requirement to reinitiate consultations for new species listings or critical habitat designation does not apply to certain agency actions ( e.g., land management plans issued by the Bureau of Land Management in certain circumstances.

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

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

Activities that we may, during a consultation under section 7(a)(2) of the Act, consider likely to destroy or adversely modify critical habitat include, but are not limited to, actions that would permanently destroy habitat and would result in complete destruction of habitat and any viable seed bank for this species. Such activities could include, but are not limited to, widening Farm to Market Road 3090 in Grimes County, developing timber roads to access timber harvesting, and allowing areas to become overgrown with woody vegetation. These activities could reduce the amount of sunlight available for the species' survival and could potentially destroy the habitat and any viable seed bank in the area.

Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) provides that the Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense (DOD), or designated for its use, that are subject to an integrated natural resources management plan (INRMP) prepared under section 101 of the Sikes Act Improvement Act of 1997 (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation. No DOD lands with a completed INRMP are within the proposed critical habitat designation.

Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from designated critical habitat based on economic impacts, impacts on national security, or any other relevant impacts. Exclusion decisions are governed by the regulations at 50 CFR 424.19 and the Policy Regarding Implementation of Section 4(b)(2) of the Endangered Species Act (hereafter, the “2016 Policy”; 81 FR 7226, February 11, 2016), both of which were developed jointly with the National Marine Fisheries Service (NMFS). We also refer to a 2008 Department of the Interior Solicitor's opinion entitled, “The Secretary's Authority to Exclude Areas from a Critical Habitat Designation under Section 4(b)(2) of the Endangered Species Act” (M-37016). In our final designation, we will explain each decision to exclude areas, as well as decisions not to exclude, to demonstrate that the decision is reasonable.

In considering whether to exclude a particular area from the designation, we identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and evaluate whether the benefits of exclusion outweigh the benefits of inclusion. If the analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, the Secretary may exercise discretion to exclude the area only if such exclusion would not result in the extinction of the species. In making the determination to exclude a particular area, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor. In our final rules, we explain any decision to exclude areas, as well as decisions not to exclude, to demonstrate that the decision is reasonable. We describe below the process that we use for taking into consideration each category of impacts and any initial analyses of the relevant impacts.

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

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

Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to assess the costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Consistent with the E.O. regulatory analysis requirements, our effects analysis under the Act may take into consideration impacts to both directly and indirectly affected entities, where practicable and reasonable. If sufficient data are available, we assess to the extent practicable the probable impacts to both directly and indirectly affected entities. Section 3(f) of E.O. 12866 identifies four criteria when a regulation is considered a “significant regulatory action”, and requires additional analysis, review, and approval if met. The criterion relevant here is whether the designation of critical habitat may have an economic effect of $100 million or more in any given year (section 3(f)(1)). Therefore, our consideration of economic impacts uses a screening analysis to assess whether a designation of critical habitat for the Navasota false foxglove is likely to exceed the economically significant threshold.

For this particular designation, we developed an incremental effects memorandum (IEM) considering the probable incremental economic impacts that may result from this proposed designation of critical habitat. The information contained in our IEM was then used to develop a screening analysis of the probable effects of the designation of critical habitat for the Navasota false foxglove (IEc 2022, entire). We began by conducting a screening analysis of the proposed designation of critical habitat in order to focus our analysis on the key factors that are likely to result in incremental economic impacts. The purpose of the screening analysis is to filter out particular geographic areas of critical habitat that are already subject to such protections and are, therefore, unlikely to incur incremental economic impacts. In particular, the screening analysis considers baseline costs ( i.e., absent critical habitat designation) and includes any probable incremental economic impacts where land and water use may already be subject to conservation plans, land management plans, best management practices, or regulations that protect the habitat area as a result of the Federal listing status of the species. Ultimately, the screening analysis allows us to focus our analysis on evaluating the specific areas or sectors that may incur probable incremental economic impacts as a result of the designation. The presence of the listed species in occupied areas of critical habitat means that any destruction or adverse modification of those areas is also likely to jeopardize the continued existence of the species. Therefore, designating occupied areas as critical habitat typically causes little if any incremental impacts above and beyond the impacts of listing the species. As a result, we generally focus the screening analysis on areas of unoccupied critical habitat (unoccupied units or unoccupied areas within occupied units). Overall, the screening analysis assesses whether any additional management or conservation efforts may incur incremental economic impacts. This screening analysis combined with the information contained in our IEM constitute what we consider to be our draft economic analysis (DEA) of the proposed critical habitat designation for the Navasota false foxglove; our DEA is summarized in the narrative below.

As part of our screening analysis, we considered the types of economic activities that are likely to occur within the areas likely affected by the critical habitat designation. In our evaluation of the probable incremental economic impacts that may result from the proposed designation of critical habitat for the Navasota false foxglove, first we identified, in the IEM dated July 20, 2022, probable incremental economic impacts associated with vegetation management and prescribed fire. We considered each industry or category individually. Additionally, we considered whether their activities have any Federal involvement. Critical habitat designation generally will not affect activities that do not have any Federal involvement; under the Act, designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies. If we list the species, in areas where the Navasota false foxglove is present, Federal agencies would be required to consult with the Service under section 7 of the Act on activities they fund, permit, or implement that may affect the species. If, when we list the species, we also finalize this proposed critical habitat designation, Federal agencies would be required to consider the effects of their actions on the designated habitat, and if the Federal action may affect critical habitat, our consultations would include an evaluation of measures to avoid the destruction or adverse modification of critical habitat.

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

The proposed critical habitat designation for the Navasota false foxglove totals approximately 1.9 ac (0.8 ha) in Grimes and Tyler Counties, Texas, and is divided into three units. All three units are currently occupied by species. In these areas any actions that may affect the species or its habitat would also affect designated critical habitat, and it is unlikely that any additional conservation efforts would be recommended to address adverse modification over and above those recommended as necessary to avoid jeopardizing the continued existence of Navasota false foxglove. Therefore, only administrative costs are expected to result from the proposed critical habitat designation. The only incremental impact of critical habitat designation that we anticipate is the small (not expected to exceed $2,800 per year) administrative effort required during section 7 consultation to document effects on the physical or biological features of the critical habitat and whether the action appreciably diminishes the value of critical habitat as a whole for the conservation of the listed species (IEc 2022, p. 8). While this additional analysis will require time and resources by the Federal action agency and the Service (if a Federal nexus exists), it is believed that, in most circumstances, these costs would predominantly be administrative in nature and would not be significant.

We are soliciting data and comments from the public on the draft economic analysis discussed above, as well as on all aspects of this proposed rule and our required determinations. During the development of a final designation, we will consider the information presented in the economic analysis and any additional information on economic impacts we receive during the public comment period to determine whether any specific areas should be excluded from the final critical habitat designation under the authority of section 4(b)(2) of the Act and our implementing regulations at 50 CFR 424.19 and the 2016 Policy. We may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of this species.

Section 4(a)(3)(B)(i) of the Act may not cover all DOD lands or areas that pose potential national-security concerns ( e.g., a DOD installation that is in the process of revising its INRMP for a newly listed species or a species previously not covered). If a particular area is not covered under section 4(a)(3)(B)(i), then national-security or homeland-security concerns are not a factor in the process of determining what areas meet the definition of “critical habitat.” However, the Service must still consider impacts on national security, including homeland security, on those lands or areas not covered by section 4(a)(3)(B)(i), because section 4(b)(2) requires the Service to consider those impacts whenever it designates critical habitat. Accordingly, if DOD, Department of Homeland Security (DHS), or another Federal agency has requested exclusion based on an assertion of national-security or homeland-security concerns, or we have otherwise identified national-security or homeland-security impacts from designating particular areas as critical habitat, we generally have reason to consider excluding those areas.

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

In preparing this proposal, we have determined that the lands within the proposed designation of critical habitat for Navasota false foxglove are not owned or managed by the DOD or DHS, and, therefore, we anticipate no impact on national security or homeland security.

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

In preparing this proposal, we have determined that no HCPs or other management plans for the Navasota false foxglove currently exist, and the proposed designation does not include any Tribal lands or trust resources or any lands for which designation would have any economic or national security impacts. Therefore, we anticipate no impact on Tribal lands, partnerships, or HCPs from this proposed critical habitat designation, and thus, as described above, we are not considering excluding any particular areas on the basis of the presence of conservation agreements or impacts to trust resources.

However, if through the public comment period we receive information that we determine indicates that there are potential economic, national security, or other relevant impacts from designating particular areas as critical habitat, then as part of developing the final designation of critical habitat, we will evaluate that information and may conduct a discretionary exclusion analysis to determine whether to exclude those areas under authority of section 4(b)(2) of the Act and our implementing regulations at 50 CFR 424.19. If we receive a request for exclusion of a particular area and after evaluation of supporting information we do not exclude, we will fully describe our decision in the final rule for this action.

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

(1) Be logically organized;

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

(3) Use clear language rather than jargon;

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

(5) Use lists and tables wherever possible.

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

Executive Order 12866, as reaffirmed by E.O. 13563 and E.O. 14094, provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this rule is not significant.

Executive Order 14094 reaffirms the principles of E.O. 12866 and E.O. 13563 and states that regulatory analysis should facilitate agency efforts to develop regulations that serve the public interest, advance statutory objectives, and are consistent with E.O. 12866, E.O. 13563, and the Presidential Memorandum of January 20, 2021 (Modernizing Regulatory Review). Regulatory analysis, as practicable and appropriate, shall recognize distributive impacts and equity, to the extent permitted by law. We have developed this proposed rule in a manner consistent with these requirements. 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 proposed rule in a manner consistent with these requirements.

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

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

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

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

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

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

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

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

(2) We do not believe that this proposed rule would significantly or uniquely affect small governments because it will not produce a Federal mandate of $100 million or greater in any year, that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. The designation of critical habitat imposes no obligations on State or local governments and, as such, a Small Government Agency Plan is not required.

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

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

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

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

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

Regulations adopted pursuant to section 4(a) of the Act are exempt from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq. ) and do not require an environmental analysis under NEPA. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This includes listing, delisting, and reclassification rules, as well as critical habitat designations. In a line of cases starting with Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), the courts have upheld this position.

In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), E.O. 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 federally recognized Tribes on a government-to-government basis. In accordance with Secretary's Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that Tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes. We have determined that no Tribal lands fall within the boundaries of the proposed critical habitat designation for the Navasota false foxglove, so no Tribal lands would be affected by the proposed designation.

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

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

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