Federal Register / Vol. 79, No. 62 / Tuesday, April 1, 2014 / Rules and Regulations 18183 

of Information and Regulatory Affairs 

has not designated it as a significant 

energy action. Therefore, it does not 

require a Statement of Energy Effects 

under Executive Order 13211. 

12. Technical Standards 

This rule does not use technical 

standards. Therefore, we did not 

consider the use of voluntary consensus 

standards. 

13. Environment 

We have analyzed this rule under 

Department of Homeland Security 

Management Directive 023–01 and 

Commandant Instruction M16475.lD, 

which guides the Coast Guard in 

complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have concluded that this action is one 

of a category of actions which do not 

individually or cumulatively have a 

significant effect on the human 

environment. This rule involves the 

removal of regulations for bridges that 

are now fixed bridges. This rule is 

categorically excluded, under figure 2– 

1, paragraph (32)(e), of the Instruction. 

Under figure 2–1, paragraph (32)(e), of 

the Instruction, an environmental 

analysis checklist and a categorical 

exclusion determination are not 

required for this rule. 

List of Subjects in 33 CFR Part 117 

Bridges. 

For the reasons discussed in the 

preamble, the Coast Guard amends 33 

CFR Part 117 as follows: 

PART 117—DRAWBRIDGE 

OPERATION REGULATIONS 

■ 1. The authority citation for part 117 

continues to read as follows: 

Authority: 33 U.S.C. 499; 33 CFR 1.05–1; 

Department of Homeland Security Delegation 

No. 0170.1. 

§ 117.733 [Amended] 

■ 2. In § 117.733, remove paragraph (h) 

and redesignate paragraphs (i) through 

(m) as paragraphs (h) through (l). 

§ 117.753 [Removed] 

■ 3. Remove § 117.753. 

Dated: March 19, 2014. 

Steven H. Ratti, 

Rear Admiral, United States Coast Guard, 

Commander, Fifth Coast Guard District. 

[FR Doc. 2014–07083 Filed 3–31–14; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2014–0191; FRL–9908–27– 

Region 6] 

Approval and Promulgation of 

Implementation Plans; Texas; 

Revisions to the Minor New Source 

Review (NSR) State Implementation 

Plan (SIP); Types of Standard Permits, 

State Pollution Control Project 

Standard Permit and Control Methods 

for the Permitting of Grandfathered 

and Electing Electric Generating 

Facilities 

AGENCY: Environmental Protection 

Agency. 

ACTION: Direct final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving several 

revisions to the Texas State 

Implementation Plan (SIP) related to the 

Texas Minor New Source Review (NSR) 

Standard Permits (SP) Program. First, 

EPA is approving revisions submitted 

by the Texas Commission on 

Environmental Quality (TCEQ, or 

Commission) on January 3, 2000, and 

March 11, 2011, expanding the Texas SP 

Program to include the Rule Standard 

Permit (Rule SP). The EPA is also 

approving a revision to the Texas SIP 

submitted by the TCEQ on February 1, 

2006, for a specific Rule SP, the Rule 

Standard Permit for Pollution Control 

Projects (Rule SP for PCP) as meeting 

the requirements for a Minor NSR SIP 

revision. Finally, because EPA is 

approving the Rule SP for PCP, EPA is 

also approving a severable portion of the 

January 3, 2000, submittal concerning 

the Texas Senate Bill 7 (SB7) permitting 

program for grandfathered and electing 

electric generating facilities (EGFs). All 

of the Texas SB7 EGFs permitting 

program provisions have been approved 

as part of the Texas NSR SIP except for 

this severable portion. This severable 

portion allowing for the use of the Rule 

SP for PCP for permitting of collateral 

emission increases is being approved as 

meeting the requirements for a Minor 

NSR SIP revision. EPA is approving 

these actions under section 110 of the 

Federal Clean Air Act (the Act or CAA) 

through a direct final rulemaking. 

DATES: This rule is effective on June 2, 

2014 without further notice, unless EPA 

receives relevant adverse comment by 

May 1, 2014. If EPA receives such 

comment, EPA will publish a timely 

withdrawal in the Federal Register 

informing the public that this rule will 

not take effect. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R06– 

OAR–2014–0191, by one of the 

following methods: 

• www.regulations.gov. Follow the 

on-line instructions. 

• Email: Ms. Adina Wiley at 

wiley.adina@epa.gov. Please also send a 

copy by email to the person listed in the 

FOR FURTHER INFORMATION CONTACT

section below. 

• Mail or delivery: Ms. Adina Wiley, 

Air Permits Section (6PD–R), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 1200, Dallas, Texas 

75202–2733. 

Instructions: Direct your comments to 

Docket ID No. EPA–R06–OAR–2014– 

0191. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http://

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

the disclosure of which is restricted by 

statute. Do not submit information 

through http://www.regulations.gov or 

email, if you believe that it is CBI or 

otherwise protected from disclosure. 

The http://www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means that EPA will not know 

your identity or contact information 

unless you provide it in the body of 

your comment. If you send an email 

comment directly to EPA without going 

through http://www.regulations.gov, 

your email address will be 

automatically captured and included as 

part of the comment that is placed in the 

public docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment along with any disk or CD– 

ROM submitted. If EPA cannot read 

your comment due to technical 

difficulties and cannot contact you for 

clarification, EPA may not be able to 

consider your comment. Electronic files 

should avoid the use of special 

characters and any form of encryption 

and should be free of any defects or 

viruses. For additional information 

about EPA’s public docket, visit the EPA 

Docket Center homepage at http://

www.epa.gov/epahome/dockets.htm. 

Docket: The index to the docket for 

this action is available electronically at 

www.regulations.gov and in hard copy 

at EPA Region 6, 1445 Ross Avenue, 

Suite 700, Dallas, Texas. While all 

documents in the docket are listed in 

the index, some information may be 

publicly available only at the hard copy 


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1 Luminant Generation Co., LLC v. EPA, 675 F 3d 

917 at 922 (5th Cir. 2012) (hereinafter Luminant). 

2Order on Motion to Amend and Enforce 

Judgment, Luminant Generation Co. v. EPA, No. 

10–60891 (Fifth Cir. Feb. 21, 2014), amending 

Luminant. 

3EPA approved the provision at 30 TAC Section 

116.601(a)(2) regarding the development of NonRule SP in a separate rulemaking. See 68 FR 64543, 

November 14, 2003. 

4See 30 TAC Section 116.617(a)(1) describing the 

scope and applicability of the Rule SP for PCP as 

adopted on January 27, 2006 by the State of Texas 

and submitted as a revision to the Texas SIP on 

February 1, 2006. See also the TCEQ Response to 

Comments provided in the preamble to the rule 

adoption at 31 TexReg 529, January 27, 2006. 

5See Luminant, 675 F.3d at 922 n. 3 (‘‘although 

the projects by definition reduce or maintain 

emissions of the primary pollutant, they have the 

potential to cause incidental increases in the 

emissions of other regulated pollutants.’’ 

6The February 1, 2006, SIP submittal also 

included amendments to 30 TAC Sections 

116.610(a) and 116.610(b). EPA disapproved 30 

TAC Sections 116.610(a) and (b) in our September 

15, 2010 disapproval of the Rule SP for PCP. See 

75 FR 56424. EPA consented to vacatur of our 

disapproval of 30 TAC Sections 116.610(a) and (b), 

and on March 26, 2012, the Fifth Circuit Court of 

Appeals vacated our disapproval of those two 

provisions, In response to the Court’s vacatur and 

remand, EPA separately finalized approval of 30 

location (e.g., copyrighted material), and 

some may not be publicly available at 

either location (e.g., CBI). To inspect the 

hard copy materials, please schedule an 

appointment with the person listed in 

the FOR FURTHER INFORMATION CONTACT

paragraph below or Mr. Bill Deese at 

214–665–7253. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Rick Barrett (6PD–R), Air Permits 

Section, telephone (214) 665–7227; 

email: barrett.richard@epa.gov. Ms. 

Adina Wiley (6PD–R), Air Permits 

Section, telephone (214) 665–2115; 

email: wiley.adina@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document ‘‘we,’’ ‘‘our,’’ 

and ‘‘us’’ refers to EPA. 

Table of Contents 

I. Overview of State Submittals 

A. 30 TAC Section 116.601(a)(1): Types of 

Standard Permits 

B. 30 TAC Section 116.617: State Pollution 

Control Project Standard Permit 

C. 30 TAC Section 116.911(a)(2): Control 

Method for Grandfathered and Electing 

Electric Generating Facilities 

II. Evaluation of State Submittals 

A. 30 TAC Section 116.601(a)(1): Types of 

Standard Permits 

B. 30 TAC Section 116.617: State Pollution 

Control Project Standard Permit 

C. 30 TAC Section 116.911(a)(2): Control 

Method for Grandfathered and Electing 

Electric Generating Facilities 

D. CAA Section 110(l) Analysis 

III. Final Action 

IV. Statutory and Executive Order Reviews 

I. Overview of State Submittals 

EPA is approving through direct final 

action revisions to the Texas Minor NSR 

Program, related to the Texas SP 

Program, which were submitted on 

January 3, 2000; February 1, 2006; and 

March 11, 2011, and are summarized 

below. The effect of this direct final 

action will be to approve into the Texas 

Minor NSR SIP the provisions for the 

adoption and development of the Rule 

SP, the specific Rule SP for PCP, and a 

provision allowing for the use of the 

Rule SP for PCP for grandfathered and 

electing electric generating facilities. 

The approval of the provisions for the 

adoption and development of Rule SP 

brings this category of SP under the 

umbrella provisions of the Texas Minor 

NSR SIP SP Program, ensuring that Rule 

SP meet all the requirements of the Act 

for Minor NSR permits. As discussed 

more fully in Sections I.B and II.B of 

this notice, we recognize that the TCEQ 

has recently promulgated a Non-Rule SP 

for PCP to replace the Rule SP for PCP. 

Despite the replacement of the Rule SP 

for PCP with the Non-Rule SP for PCP, 

the TCEQ has not withdrawn the Rule 

SP for PCP from our consideration. 

Therefore, we are acting on it today. 

Additionally, our action today is 

responsive to the March 26, 2012, Fifth 

Circuit Court of Appeals decision to 

vacate and remand our September 15, 

2010 disapproval of the Rule SP for 

PCP, as amended by the Court’s order of 

February 21, 2014, directing EPA to take 

final action on this submittal by May 19, 

2014.1 2

A. 30 TAC Section 116.601(a)(1): Types 

of Standard Permits 

Under state law, the Texas Standard 

Permits (SP) Program at 30 TAC Chapter 

116, Subchapter F, is a component of 

the Texas Minor NSR Program. A SP 

under the Texas Minor NSR Program is 

not a case-by-case Minor NSR permit, 

but rather is a streamlined mechanism 

with all permitting requirements for 

construction and operation of a certain 

source category. Within the Texas SP 

Program, the TCEQ has the ability to 

develop and implement two types of 

Standard Permits—Rule Standard 

Permits (Rule SP) and Non-Rule 

Standard Permits (Non-Rule SP). These 

two categories of SP are identified at 30 

TAC Section 116.601(a). The Non-Rule 

SP and the general provisions 

applicable to all SP are already 

approved as part of the Texas Minor 

NSR SIP. We are approving into the 

Texas Minor NSR SIP portions of two 

revisions to the Texas SIP submitted on 

January 3, 2000, and March 11, 2011, 

pertaining to the Rule SP. Specifically, 

we are approving 30 TAC Section 

116.601(a)(1) as initially adopted on 

December 16, 1999, and submitted as a 

revision to the Texas SIP on January 3, 

2000, which addresses the development 

of Rule SP. Additionally, we are 

approving a non-substantive revision to 

30 TAC Section 116.601(a)(1) adopted 

on February 9, 2011, and submitted as 

a revision to the Texas SIP on March 11, 

2011. EPA has taken no action to date 

on the development of Rule SP at 30 

TAC Section 116.601(a)(1).3 Therefore, 

our action approves the initial adoption 

and submittal on January 3, 2000, and 

the revisions submitted on March 11, 

2011, addressing the development and 

implementation of Rule SP. Further, our 

action today approves the general 

provisions at 30 TAC Sections 601, 604, 

605, 606, 610, 611, 614 and 615 

pertaining to all SP as applicable to the 

Rule SP as well as the Non-Rule SP. 

With today’s action, the category of Rule 

SP will now become part of the Texas 

Minor NSR SIP. 

B. 30 TAC Section 116.617: State 

Pollution Control Project Standard 

Permit 

The Texas State Pollution Control 

Project Standard Permit (referred to as 

the SP for PCP) before us for SIP action 

is a Rule SP that must meet the 

requirements of 30 TAC Section 

116.601(a)(1), which we are also 

approving today as described above. 

The Rule SP for PCP at 30 TAC Section 

116.617 is a component of Texas’s 

broader SP Program, which originated 

in 1994. 

The Rule SP for PCP authorizes 

projects undertaken voluntarily, or as 

required by any federal or state statute 

or rule, that reduce or maintain 

currently authorized air emission rates 

for facilities authorized by a NSR 

permit, Standard Permit, or Permits by 

Rule, and that may have associated 

Minor NSR collateral emission increases 

in other regulated pollutants.4 5 On 

April 22, 1994, Texas adopted a 

regulation at 30 TAC Section 116.617 

that was a Rule SP applicable to 

pollution control projects for any 

regulated pollutant. On January 27, 

2006, Texas repealed the previously 

submitted Rule SP for PCP and adopted 

a new Rule SP for PCP that is limited 

to Minor NSR only. Texas adopted the 

new Rule SP for PCP to be consistent 

with federal law after the D.C. Circuit 

limited the use of pollution control 

projects to Minor NSR. New York v. 

EPA, 413 F.3d 3, 40–42 (D.C. Cir. 2005). 

On February 1, 2006, Texas submitted 

the newly adopted Rule SP for PCP 

found at 30 TAC Section 116.617, 

among other provisions, to the EPA for 

approval into the Texas SIP.6 On 


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TAC Sections 116.610(a) and (b) on February 14, 

2014. See 79 FR 8861. 

7The State’s summary document explains that 

‘‘This new non-rule standard permit replaces the 

existing 30 TAC § 116.617 for authorization of new 

pollution control projects (PCP).’’ Air Quality 

Standard Permit For Pollution Control Projects 

Summary Document, Section II—Explanation and 

Background of Air Quality Standard Permit (March 

10, 2011), available at http://www.tceq.state.tx.us/

permitting/air/announcements/nsr-announce-3-10- 

11.html. 

8On remanding the case to EPA, the court noted 

as follows ‘‘It is difficult to conceive, and the EPA 

has not suggested, how it could disapprove the PCP 

Standard Permit under the appropriate statutory 

factors . . . when pressed at oral argument, the EPA 

was unable to identify any legal deficiencies with 

the PCP Standard Permit other than its supposed 

failure to meet . . . requirements that today we 

hold unlawful—despite the half decade the EPA has 

had to evaluate it. Nevertheless, we defer to the 

Agency to evaluate Texas’s regulations in light of 

the proper CAA standards.’’ Id. At 932 n. 12. 

9The Fifth Circuit has recognized that the Rule 

SP for PCP ‘‘applies only to minor NSR.’’ 675 F.3d 

at 922. 

10We state this to clarify any potential confusion 

created by statements made in the Fifth Circuit 

February 21, 2014 Order on Motion to Amend and 

Enforce Judgment that seem to imply that 

authorizations under the Rule SP for PCP obtained 

prior to EPA’s SIP approval ‘‘may in fact be valid 

under the Clean Air Act’’ upon approval by EPA. 

Luminant et al., v. EPA, Order on Motion to Amend 

and Enforce Judgement, Case No. 10–60891, at 9 

(5th Cir. Feb. 21, 2014). 

September 23, 2009, EPA proposed to 

disapprove revisions to the Texas SIP, 

including the Rule SP for PCP at 30 TAC 

Section 116.617, on the basis that the 

Rule SP for PCP did not meet the 

requirements for a Minor NSR SIP 

revision. 74 FR 48467, 48471. EPA 

finalized our disapproval of the Rule SP 

for PCP on September 15, 2010. See 75 

FR 56424. 

Upon finalization of our disapproval, 

several parties (Luminant Generation 

Company, L.L.C.; Oak Grove 

Management Company, L.L.C.; Big 

Brown Power Company, L.L.C.; 

Luminant Mining Company, L.L.C.; 

Sandow Power Company, L.L.C.; Texas 

Association of Business; Texas 

Association of Manufacturers; Texas Oil 

& Gas Association; Chamber of 

Commerce of the United States of 

America; and the State of Texas) 

appealed our disapproval to the Fifth 

Circuit Court of Appeals. 

Prior to a ruling by the Fifth Circuit 

Court of Appeals, the TCEQ conducted 

rulemaking to revise the Rule SP for 

PCP at 30 TAC Section 116.617 and 

issued pursuant to the Texas Minor NSR 

SIP, a new Non-Rule SP for PCP to 

replace the Rule SP for PCP at 30 TAC 

Section 116.617. On February 9, 2011, 

TCEQ adopted, without submitting for 

SIP approval, revisions to the Rule SP 

for PCP at 30 TAC Section 116.617. 

Those new non-SIP provisions are 

codified at 30 TAC Section 116.617(a)(4) 

and (a)(5), and provide that ‘‘no new or 

modified registrations will be accepted 

and no existing registrations will be 

renewed’’ under the Rule SP for PCP 

‘‘on or after March 3, 2011.’’ See 36 

TexReg 1323, February 25, 2011. 

Additionally, the Non-Rule SP for PCP 

issued on February 9, 2011, that became 

part of the Texas Minor NSR SIP 

immediately upon its effective date of 

March 3, 2011, requires at sections 

(1)(D)(i)–(iii) that all Rule SP for PCP 

authorized as of March 3, 2011, must be 

converted to a Non-Rule SP for PCP no 

later than the ten-year renewal 

anniversary of the authorization.7

Therefore, from March 3, 2011, forward, 

under the Texas SIP, no source can 

register for a new Rule SP for PCP at 30 

TAC Section 116.617, and registrants for 

the existing Rule SP for PCP must use 

for revision and renewal purposes, the 

Non-Rule SP for PCP which the TCEQ 

developed pursuant to the Texas SIP at 

30 TAC Sections 116.601(a)(2) and 

116.603. 36 TexReg 2305, February 25, 

2011. Because a SP must be renewed 

every 10 years pursuant to the SIPapproved provisions at 30 TAC Section 

116.604, all PCPs currently authorized 

under a Rule SP for PCP are required by 

the Texas Minor NSR SIP to be renewed 

and comply with the Non-Rule SP for 

PCP no later than March 3, 2021. 

Effectively, the SIP Non-Rule SP for PCP 

creates a sunset date beyond which the 

Rule SP for PCP will be unavailable. 

On March 26, 2012, the Fifth Circuit 

Court of Appeals granted the petition for 

review, vacated our disapproval of the 

Rule SP for PCP, and remanded the 

matter back to EPA for further review. 

Luminant, 675 F 3d 917. The ruling did 

not address the changes Texas had made 

to the Rule SP for PCP but not submitted 

for SIP approval, including the date 

limitations Texas added to the Rule SP 

for PCP. Nor did the decision address 

the availability of the SIP-approved 

Non-Rule SP for PCP as a replacement 

for the Rule SP for PCP and the 

mechanism to obtain federal 

authorization for PCP in Texas.8 The 

effect of the ruling was to put back in 

front of EPA for review and 

consideration as a revision to the Texas 

SIP the Rule SP for PCP as submitted on 

February 1, 2006. The Fifth Circuit 

issued an Order on February 21, 2014, 

instructing EPA to issue a final rule 

regarding the Rule SP for PCP by May 

19, 2014. 

Our action today is confined to the 

approval of the Rule SP for PCP 

submitted on February 1, 2006, at 30 

TAC Section 116.617, combined with 

the approval of the Rule SP as an 

available type of SP, as meeting the 

Minor NSR SIP requirements consistent 

with the Fifth Circuit decision regarding 

the Rule SP for PCP as a Minor NSR 

program.9 Today’s action reflects EPA’s 

evaluation of the Texas regulations and 

its conclusion that the Texas rules are 

consistent with the requirements of the 

CAA. EPA’s approval of the Rule SP for 

PCP into the Texas SIP will not provide 

federal authorization for projects 

registered under the Rule SP for PCP 

before it was SIP-approved. CAA 

Section 110(i); 40 CFR 51.105; see also, 

Train v. Natural Res. Def. Council, Inc., 

421 U.S. 60 (1975); Bethlehem Steel 

Corp. v. Gorsuch, 742 F.2d 1028, 1034 

(7th Cir. 1984); United States v. Ford 

Motor Co., 814 F.2d 1099, 1102–03 (6th 

Cir. 1987); Sierra Club v. TVA, 430 F.3d 

1337, 1347 (11th Cir. 2005).10

C. 30 TAC Section 116.911(a)(2): 

Control Method for Grandfathered and 

Electing Electric Generating Facilities 

We are approving a portion of 

revisions to the Texas SIP submitted on 

January 3, 2000, regarding the 

application and permitting procedures 

for grandfathered and electing electric 

generating facilities (EGFs). Specifically, 

we are approving 30 TAC Section 

116.911(a)(2)—Control method. 

Background information about the 

permitting of grandfathered and electing 

EGFs in Texas subject to Texas Senate 

Bill 7 (SB 7) is available in EPA’s partial 

approval and partial disapproval of the 

Texas provisions for permitting 

grandfathered and electing EGFs on 

January 11, 2011. See 76 FR 1525. 

As explained more fully in EPA’s 

January 11, 2011 notice, EPA partially 

approved and partially disapproved the 

Texas provisions for permitting 

grandfathered and electing EGFs, 

referred to as the Texas SB 7 permitting 

program. 76 FR 1525. Specifically, EPA 

partially disapproved the provisions for 

control methods for grandfathered 

electric generating units at 30 TAC 

Section 116.911(a)(2) because they 

provided that a source could obtain 

coverage under the Rule SP for PCP at 

30 TAC Section 116.617, which we had 

disapproved on September 15, 2010. 

Upon finalization of our partial 

approval and partial disapproval, 

several parties (Luminant Generation 

Company, L.L.C.; Big Brown Power 

Company, L.L.C.; and the State of Texas) 

filed a petition for review of EPA action 

to the Fifth Circuit Court of Appeals. On 

September 12, 2012, EPA requested the 

Fifth Circuit vacate our disapproval and 

remand the provision back to EPA for 

further proceedings. On October 4, 

2012, the Fifth Circuit granted our 

request by vacating our disapproval of 


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11Note that the TCEQ also submitted other, nonrelated revisions to the Texas SIP in the 

rulemakings identified in the Table. The 

accompanying Technical Support Document (TSD) 

for this direct final action identifies each submitted 

provision and the date of EPA’s action on the 

provision. The TSD is available in the rulemaking 

docket. 

12EPA did not approve the Rule SP at 30 TAC 

Section 116.601(a)(1) or the specific Rule SP for 

PCP at 30 TAC Section 116.617, the Rule SP for Oil 

and Gas Facilities at 30 TAC 116.620, or the Rule 

SP for Municipal Solid Waste Landfills at 30 TAC 

Section 116.621 in the November 14, 2003 action. 

See 68 FR 64543, at 64547. Since that time, EPA 

has approved the Rule SP for Oil and Gas Facilities 

at 30 TAC Section 116.620 on February 14, 2014 at 

79 FR 8861. The TCEQ repealed the Rule SP for 

Municipal Solid Waste Landfills at 30 TAC Section 

116.621 on March 1, 2006. 

13The Texas Natural Resource Conservation 

Commission is the predecessor agency to the TCEQ, 

hereafter referred to as the TCEQ. 

14On November 14, 2003, EPA fully approved the 

Non-Rule Standard Permit provisions, including the 

identification of the Non-Rule Standard Permits at 

30 TAC Sections 116.601(a)(2). See 68 FR 64543. 

Thereafter, upon TCEQ issuance of a Non-Rule SP, 

the specific Non-Rule SP automatically becomes 

part of the Texas Minor NSR SIP. 

30 TAC Section 116.911(a)(2) and 

remanded the matter back to EPA. 

Our approval today of 30 TAC Section 

116.601(a)(1), into the Texas SIP, results 

in the application of the SIP’s general 

provisions for SP applying now to Rule 

SP as well as Non-Rule SP. 

Additionally, our evaluation today is 

that the specific Rule SP for PCP at 30 

TAC Section 116.617, as submitted on 

February 1, 2006, when combined with 

the general provisions for SP, satisfies 

the requirements for Minor NSR and our 

prior basis for disapproval of 30 TAC 

Section 116.911(a)(2) is no longer 

supportable. Accordingly, today’s direct 

final action approving 30 TAC Sections 

116.601(a)(1) and 116.617 as part of the 

Texas Minor NSR SIP also approves 30 

TAC Section 116.911(a)(2) as part of the 

Texas SB7 permitting program and the 

Minor NSR SIP consistent with the Fifth 

Circuit remand and vacatur of the Rule 

SP for PCP. 

The following table identifies the 

sections addressed in today’s direct 

final action.11

TABLE 1—SUMMARY OF THE INDIVIDUAL REVISIONS TO EACH SECTION EVALUATED

Section Title Date submitted to 

EPA Adopted by state Comments 

Chapter 116 

Subchapter F 

30 TAC Section 116.601 ......... Types of Standard 

Permits.

January 3, 2000 ...... December 16, 1999 New provision at 30 TAC Section 

116.601(a)(1) establishes the Rule SP 

as one of two types of SP available in 

the Texas Minor NSR Program. 

March 11, 2011 ....... February 9, 2011 .... Revisions to 30 TAC Section 

116.601(a)(1) to remove cross-references from the definition of the Rule 

SP. 

30 TAC Section 116.617 ......... State Pollution Control Project Standard Permit.February 1, 2006 .... January 11, 2006 .... Repeal and replacement of the Rule SP 

for PCP at 30 TAC Section 116.617. 

Subchapter I 

30 TAC Section 116.911(a)(2) Control method ....... January 3, 2000 ...... December 16, 1999 Requires the use of the Rule SP for PCP 

at 30 TAC 116.617. 

II. Evaluation of State Submittals 

A. 30 TAC Section 116.601(a)(1): Types 

of Standard Permits 

EPA approved Texas’ regulations for 

Non-Rule SP in 30 TAC Chapter 116, 

Subchapter F on November 14, 2003 (68 

FR 64543) as meeting the federal 

requirements for Minor NSR.12 When 

the Texas Minor NSR SP Program began 

in 1994, all SPs were developed using 

the State’s rulemaking process under the 

Texas Government Code, Chapter 2001, 

Subchapter B. To streamline the process 

for development and issuance of SPs 

within the Texas Minor NSR Program, 

Texas Senate Bill 766 of the 76th 

Legislature directed the Texas Natural 

Resource Conservation Commission to 

develop an alternate process whereby 

the SPs could be developed and 

implemented without going through the 

formal rule-making process.13 On 

January 3, 2000, the TCEQ submitted a 

SIP revision that created the two types 

of SP that exist today in the Texas 

Minor NSR Program—the Rule SP and 

the Non-Rule SP. Specifically, this 

revision to the Texas SIP included: 

• New 30 TAC Section 116.601(a)(1) 

which identified those SP that were 

adopted through rulemaking in 

accordance with Texas Government 

Code, Chapter 2001, Subchapter B. 

(Rule Standard Permits or Rule SP). 

• New 30 TAC Section 116.601(a)(2) 

which identified those SP that were 

issued after a public notice and 

comment period in accordance with 30 

TAC Section 116.603 (relating to the 

Public Participation in Issuance of 

Standard Permits) (Non-Rule Standard 

Permits or Non-Rule SP) rather than 

through rulemaking.14

Since the initial adoption of 30 TAC 

Section 116.601(a)(1), the TCEQ has 

adopted one revision to the 

identification of Rule SPs and submitted 

this amendment to the Texas SIP on 

March 11, 2011. This non-substantive 

revision removes unnecessary crossreferences in the Rule SP regulation in 

the Texas SP program for the Rule SP 

for PCP and the Rule SP for Oil and Gas 

Facilities. This non-substantive revision 

also removes the cross-reference to the 

repealed Rule SP for Municipal Solid 

Waste Landfills. Our direct final 

approval addresses the initial adoption 

of 30 TAC 116.601(a)(1), as revised 

through the March 11, 2011, SIP 

submittal. 

EPA finds that the 30 TAC Section 

116.601(a)(1) as revised through the 

March 11, 2011, SIP submittal is an 

integral part of the Texas Minor NSR 

program and approves it as part of the 

Texas Minor NSR SIP. This provision 

enables the Texas SIP to meet the 

requirements of 40 CFR 51.160 by 

clearly identifying the scope of the 

Texas SP Program and identifying the 


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15As discussed previously, a SP is not a case-bycase permit. Therefore, the Rule SP goes through 

public comment during the development process, 

but does not have separate notice and comment 

requirements for each authorization of the Rule SP. 

legally enforceable procedures the 

TCEQ will use in developing Rule SPs. 

As previously noted, our approval also 

means that the general provisions at 30 

TAC Sections 601, 604, 605, 606, 610, 

611, 614, and 615 approved into the 

Texas Minor NSR SIP in our November 

14, 2003 action, now apply to the Rule 

SP in addition to Non-Rule SP. 

Additionally, 30 TAC Section 

116.601(a)(1) satisfies the Minor NSR 

public notice requirements at 40 CFR 

51.161 by specifying that a Rule SP is 

developed in accordance with Texas 

Government Code, Chapter 2001, 

Subchapter B. This is the rulemaking 

process that TCEQ uses in developing 

any revision to the Texas SIP; under this 

Code, when developing a Rule SP the 

TCEQ is required to publish notice of 

the proposed Rule SP in the Texas 

Register. TCEQ is also required to 

provide for 30 days notice on the 

proposed Rule SP.15

B. 30 TAC Section 116.617: State 

Pollution Control Project Standard 

Permit 

Federal regulations at 40 CFR 51.160 

require a Minor NSR program to include 

legally enforceable procedures that 

enable the permitting authority to 

ensure that no construction of a facility 

or modification will cause a violation of 

applicable portions of the control 

strategy or interfere with attainment or 

maintenance of a NAAQS. The Rule SP 

for PCP at 30 TAC Section 116.617 

submitted on February 1, 2006, is a 

component of the Texas Minor NSR 

program. 30 TAC Section 116.610(b) 

limits the Texas SP Program to Minor 

NSR and provides that a SP cannot be 

used to authorize a project that 

constitutes a new major stationary 

source or major modification. Therefore, 

the Rule SP for PCP can be used at 

minor sources, or at major sources 

taking a Minor NSR action. But in all 

cases, the Rule SP for PCP will not 

authorize emission increases that would 

have triggered Major NSR review under 

either the SIP-approved Texas 

Prevention of Significant Deterioration 

or Nonattainment NSR programs. As 

discussed above and in Section I.B. and 

as recognized by the Fifth Circuit, 

Luminant, 675 F.3d at 922, the 

applicability of the Rule SP for PCP is 

clearly limited to Minor NSR and EPA 

finds that the provisions at 30 TAC 

Section 116.617, in conjunction with 

the already-SIP approved general 

provisions for SP, satisfy the federal 

requirements for a Minor NSR program. 

The Rule SP for PCP that we are 

acting on now is a Rule SP as identified 

in 30 TAC Section 116.601(a)(1). The 

TCEQ used the public notice procedures 

found in Texas Government Code, 

Chapter 2001, Subchapter B to develop 

and accept comments on the program. 

Consequently, the development of the 

Rule SP for PCP provided public notice 

that satisfies the requirements for Minor 

NSR public notice at 40 CFR 51.161. 

Furthermore, because we are approving 

into the Texas Minor NSR SIP, 30 TAC 

Section 116.601(a)(1), all of the SP 

general requirements previously 

approved into the Texas SIP in 2003 as 

applicable for the Non-Rule SP now 

apply to the Rule SP for PCP. The 

registrant is required at 30 TAC Section 

116.615(1) to protect public health and 

welfare. Additionally, sources seeking 

authorization via the Rule SP for PCP 

are required to submit a SP registration 

to TCEQ under 30 TAC Section 116.611, 

which must include information 

regarding the proposed project to be 

authorized (e.g., emission estimates, 

description of project and related 

process, description of equipment being 

installed). 30 TAC Section 116.615 

includes general conditions that must be 

met by sources authorized by a Rule SP, 

including the Rule SP for PCP; these 

general conditions specifically require 

that the sources authorized under a SP 

comply with ‘‘all rules, regulations, and 

orders of the commission issued in 

conformity with the [Texas Clean Air 

Act].’’ See 30 TAC Section 116.615(10). 

In the case where more than one state 

or federal rule, regulation, or permit 

condition is applicable, the source must 

comply with the most stringent 

requirement or limit. See 30 TAC 

Section 116.615(10). Therefore, the 

conditions of the Rule SP for PCP in no 

way supersede or relax other applicable 

state or federal requirements. In 

addition, 30 TAC Sections 116.610(a), 

116.615, and 116.617(b) require that 

sources authorized under the Rule SP 

for PCP submit appropriate 

documentation to demonstrate 

compliance with state and federal 

provisions, including New Source 

Performance Standards and National 

Emission Standards for Hazardous Air 

Pollutants. Regarding testing, 

recordkeeping, reporting and 

monitoring provisions, 30 TAC Section 

116.615 requires recordkeeping and 

monitoring sufficient to demonstrate 

compliance with the Rule SP for PCP 

and all other requirements for SP. This 

means the sources authorized under a 

Rule SP for PCP must maintain records/ 

testing/monitoring/etc sufficient to 

demonstrate status as Minor NSR and 

compliance with all federal and state 

provisions, as discussed above. The 

Rule SP for PCP only authorizes 

collateral emission increases of 

regulated pollutants from permitted 

projects that otherwise ‘‘reduce or 

maintain currently authorized emission 

rates.’’ Additionally, 30 TAC Section 

116.617(a)(3)(B) provides that the Rule 

SP for PCP cannot be used to authorize 

the installation of emission control 

equipment or the implementation of a 

control technique that the TCEQ 

Executive Director has determined has 

the potential to exceed a NAAQS until 

the potential exceedances are addressed. 

Based on all of these provisions, EPA 

concludes that the Rule SP for PCP 

contains legally enforceable procedures 

to prevent interference with a NAAQS. 

As previously discussed, EPA 

disapproved the Rule SP for PCP on 

September 15, 2010. Prior to the ruling 

by the Fifth Circuit Court of Appeals, 

the TCEQ conducted rulemaking to 

revise the Rule SP for PCP at 30 TAC 

Section 116.617 and to also issue a new 

Non-Rule SP for PCP that automatically 

became part of the Texas Minor NSR SIP 

upon its effective date, to replace the 

Rule SP for PCP at 30 TAC Section 

116.617. Therefore, from March 3, 2011, 

forward, pursuant to the Texas SIP, 

sources seeking authorization for a PCP 

must register under the Non-Rule SP for 

PCP and all renewals and revisions to 

currently authorized Rule SP for PCP 

must be done under the Non-Rule SP for 

PCP. The Non-Rule SP for PCP became 

effective on March 3, 2011, and was 

developed by TCEQ according to the 

requirements of 30 TAC Sections 

116.601(a)(2) and 116.603. 36 TexReg 

2305, February 25, 2011. Because the 

method for issuing the Non-Rule SP for 

PCP was approved by EPA into the 

Texas SIP in 2003, the Non-Rule SP for 

PCP issued by TCEQ is now part of the 

Texas Minor NSR SIP. 

The TCEQ has not submitted the 

revisions to 30 TAC Section 116.617, 

the Rule SP for PCP, adopted on 

February 9, 2011, as revisions to the 

Texas SIP. Therefore, EPA is only 

approving as a revision to the Texas 

Minor NSR SIP the Rule SP for PCP at 

30 TAC Section 116.617 as initially 

adopted and submitted February 1, 

2006. The February 9, 2011, revisions to 

30 TAC Section 116.617(a)(4) and (a)(5) 

establishing date and other limitations 

are not federally enforceable as SIP 

requirements. However, as previously 

noted, the issuance of the Non-Rule SP 

for PCP created the SIP-approved 

mechanism for obtaining initial, revised 

and renewal authorizations for PCP. 


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C. 30 TAC Section 116.911(a)(2): 

Control Method for Grandfathered and 

Electing Electric Generating Facilities 

EPA previously disapproved 30 TAC 

Section 116.911(a)(2) because it allowed 

a source to obtain authorization through 

30 TAC Section 116.617. However, we 

requested the Court to vacate that 

disapproval and remand to EPA for 

further consideration based on the Fifth 

Circuit ruling on EPA’s disapproval of 

30 TAC Section 116.617. As discussed 

previously in Section II.B of this direct 

final action, EPA now approves it as a 

SIP revision, based on today’s finding 

that 30 TAC Section 116.617 is an 

approvable component of the Texas 

Minor NSR program. By extension, the 

provision in 30 TAC Section 

116.911(a)(1) allowing sources to obtain 

authorization through 30 TAC Section 

116.617 is also an approvable provision 

of the Texas Minor NSR program, and 

therefore approvable as submitted on 

January 3, 2000. 

D. CAA Section 110(l) Analysis 

Under Section 110(l) of the CAA, the 

regulations submitted as a SIP revision 

adopting and implementing the Texas 

SP Program, and specifically the Rule 

SP for PCP, must meet the procedural 

requirements of Section 110(l) by 

demonstrating that the State followed 

all necessary procedural requirements 

such as providing reasonable notice and 

public hearing of the SIP revision. 

Additionally, the SIP revision must 

demonstrate that the adopted rules will 

not interfere with any applicable 

requirement concerning attainment and 

reasonable further progress, or any other 

applicable requirement of the CAA. We 

find that the TCEQ satisfied all 

requirements pursuant to Section 110(l). 

The regulation of minor sources is a 

requirement of Section 110(a)(2)(C) of 

the CAA and EPA’s regulations at 40 

CFR 51.160–51.164. As discussed in this 

direct final action and the 

accompanying TSD, EPA finds that the 

revisions to the Texas SP Program 

establishing the type of SP termed the 

Rule SP submitted on January 3, 2000 

and revised on March 11, 2011; the Rule 

SP for PCP submitted on February 1, 

2006; and the provision allowing for the 

use of the Rule SP for PCP as a control 

method for Texas SB7 grandfathered 

and electing EGFs as submitted on 

January 3, 2000; satisfy the requirements 

for Minor NSR. The Rule SP for PCP 

when combined with the already SIPapproved general provisions that apply 

to all SP, includes adequate provisions 

to provide legally enforceable 

procedures to ensure protection of the 

control strategy and any applicable 

NAAQS. The Texas Minor NSR SIP SP 

general provisions, and specifically the 

Rule SP for PCP, also contain sufficient 

safeguards to prevent circumvention of 

Major NSR permitting requirements. 

The Rule SP for PCP only authorizes 

collateral emission increases of 

regulated pollutants from permitted 

projects that would otherwise ‘‘reduce 

or maintain currently authorized 

emissions rates.’’ Additionally, 30 TAC 

Section 116.617(a)(3)(B) provides that 

the Rule SP for PCP cannot be used to 

authorize the installation of emission 

control equipment or the 

implementation of a control technique 

that the TCEQ Executive Director has 

determined has the potential to exceed 

a NAAQS until the potential 

exceedances are addressed. In sum, we 

find that the revisions to the Texas SIP 

adopting and implementing revisions to 

the Texas Minor NSR Program for 

Standard Permits, specifically 

provisions for the development of Rule 

SP and establishment and use of the 

Rule SP for PCP, satisfy the 

requirements of Section 110(l) of the 

Act. 

III. Final Action 

EPA has made the determination that 

the revisions to the Texas SIP submitted 

on January 3, 2000, February 1, 2006, 

and March 11, 2011, which are part of 

this direct final rulemaking, are 

approvable because they were adopted 

and submitted in accordance with the 

CAA and EPA regulations regarding 

Minor NSR. Therefore, under section 

110 of the Act, and for the reasons 

stated above, EPA is taking direct final 

action to approve the following 

revisions to the Texas SIP: 

• The initial submittal of 30 TAC 

Section 116.601(a)(1) as a revision to the 

Texas SIP on January 3, 2000, and the 

subsequent amendments to 30 TAC 

Section 116.601(a)(1) submitted on 

March 11, 2011. 

• The repeal and replacement of 30 

TAC Section 116.617 submitted as a 

revision to the Texas SIP on February 1, 

2006. 

• The adoption of 30 TAC Section 

116.911(a)(2) submitted as a revision to 

the Texas SIP on January 3, 2000. 

EPA is publishing this rule without 

prior proposal because we view this as 

a non-controversial amendment and 

anticipate no adverse comments. 

However, in the proposed rules section 

of this Federal Register publication, we 

are publishing a separate document that 

will serve as the proposal to approve the 

SIP revision if relevant adverse 

comments are received. This rule will 

be effective on June 2, 2014 without 

further notice unless we receive adverse 

comment by May 1, 2014. If we receive 

adverse comments, we will publish a 

timely withdrawal in the Federal 

Register informing the public that the 

rule will not take effect. In that case, we 

will address all public comments on 

today’s notice in a subsequent final rule 

based on the proposed rule. We will not 

institute a second comment period on 

this action. Any parties interested in 

commenting must do so now. Please 

note that if we receive adverse comment 

on an amendment, paragraph, or section 

of this rule and if that provision may be 

severed from the remainder of the rule, 

we may adopt as final those provisions 

of the rule that are not the subject of an 

adverse comment. 

IV. Statutory and Executive Order 

Reviews 

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, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely approves state law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• 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 


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application of those requirements would 

be inconsistent with the CAA; and 

• does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

The Congressional Review Act, 5 

U.S.C. section 801 et seq., as added by 

the Small Business Regulatory 

Enforcement Fairness Act of 1996, 

generally provides that before a rule 

may take effect, the agency 

promulgating the rule must submit a 

rule report, which includes a copy of 

the rule, to each House of the Congress 

and to the Comptroller General of the 

United States. EPA will submit a report 

containing this rule and other required 

information to the U.S. Senate, the U.S. 

House of Representatives, and the 

Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. section 804(2). 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by June 2, 2014. Filing a petition 

for reconsideration by the Administrator 

of this final rule does not affect the 

finality of this rule for the purposes of 

judicial review nor does it extend the 

time within which a petition for judicial 

review may be filed, and shall not 

postpone the effectiveness of such rule 

or action. This action may not be 

challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Hydrocarbons, Incorporation by 

reference, Intergovernmental relations, 

Lead, Nitrogen oxides, Ozone, 

Particulate matter, Reporting and 

recordkeeping requirements, Sulfur 

oxides, Volatile organic compounds. 

Dated: March 21, 2014. 

Ron Curry, 

Regional Administrator, Region 6. 

40 CFR part 52 is amended as follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart SS—Texas 

■ 2. In § 52.2270 (c), the table titled 

‘‘EPA APPROVED REGULATIONS IN 

THE TEXAS SIP’’ is amended by: 

■ a. Revising the entries for Sections 

116.601 and 116.911. 

■ b. Adding a new entry for Section 

116.617 immediately after the entry for 

Section 116.615. 

The amendments read as follows: 

§ 52.2270 Identification of plan. 

* * * * * 

(c) * * * 

EPA APPROVED REGULATIONS IN THE TEXAS SIP 

State citation Title/subject 

State 

approval/ 

submittal date 

EPA approval date Explanation 

*******

Subchapter F—Standard Permits 

Section 116.601 ...................... Types of Standard Permits .... 2/9/2011 4/1/2014 [Insert FR page 

number where document 

begins].

* * * * * * * 

Section 116.617 ...................... State Pollution Control Project 

Standard Permit.

1/11/2006 4/1/2014 [Insert FR page 

number where document 

begins].

* * * * * * * 

Subchapter I—Electric Generating Facility Permits 

Section 116.911 ...................... Electric Generating Facility 

Permit.

5/22/2002 4/1/2014 [Insert FR page 

number where document 

begins].

Section 116.911(a)(2) is authorized for Minor NSR 

only. 

* * * * * * * 

[FR Doc. 2014–07127 Filed 3–31–14; 8:45 am] 

BILLING CODE 6560–50–P 


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18190 Federal Register / Vol. 79, No. 62 / Tuesday, April 1, 2014 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R8–ES–2013–0099; 

FXES11130900000–145–FF09E42000] 

RIN 1018–AY44 

Endangered and Threatened Wildlife 

and Plants; Removing the Island Night 

Lizard From the Federal List of 

Endangered and Threatened Wildlife 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: Under the authority of the 

Endangered Species Act of 1973, as 

amended (Act), we, the U.S. Fish and 

Wildlife Service (Service), remove the 

island night lizard (Xantusia riversiana) 

from the Federal List of Endangered and 

Threatened Wildlife. This determination 

is based on a thorough review of the 

best available scientific and commercial 

information, which indicates that the 

threats to this species have been 

eliminated or reduced to the point that 

the species has recovered and no longer 

meets the definition of an endangered 

species or threatened species under the 

Act. 

DATES: This rule becomes effective on 

May 1, 2014. 

ADDRESSES: This final rule and postdelisting monitoring plan are available 

on the Internet at http://

www.regulations.gov at Docket Number 

[FWS–R8–ES–2013–0099]. Comments 

and materials received, as well as 

supporting documentation used in the 

preparation of this rule, will be 

available for public inspection, by 

appointment, during normal business 

hours at: U.S. Fish and Wildlife Service, 

Carlsbad Fish and Wildlife Office, 2177 

Salk Avenue Suite 250, Carlsbad, CA 

92008. 

FOR FURTHER INFORMATION CONTACT: 

Scott Sobiech, Deputy Field Supervisor, 

Carlsbad Fish and Wildlife Office, (see 

ADDRESSES); by telephone 760–431– 

9440; or by facsimile (fax) 760–431– 

5901. If you use a telecommunications 

device for the deaf (TDD), please call the 

Federal Information Relay Service 

(FIRS) at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Executive Summary 

This document contains: (1) A final 

rule to remove the island night lizard 

from the Federal List of Endangered and 

Threatened Wildlife; and (2) a notice of 

availability of a final post-delisting 

monitoring plan. 

Species addressed. The island night 

lizard (Xantusia riversiana) is endemic 

to three federally owned Channel 

Islands (San Clemente, San Nicolas, and 

Santa Barbara) located off the southern 

California coast and a small islet (Sutil 

Island) located just southwest of Santa 

Barbara Island. San Clemente and San 

Nicolas islands are both owned and 

managed by the U.S. Navy (Navy) and 

Santa Barbara Island is owned and 

managed by the National Park Service 

(NPS). Habitat restoration and reduced 

adverse human-related impacts since 

listing have resulted in significant 

improvements to habitat quality and 

quantity. As a result, threats to the 

island night lizard have been largely 

ameliorated. Though population 

densities were not known at the time of 

listing, the island night lizard 

populations are currently estimated at 

21.3 million lizards on San Clemente 

Island, 15,300 lizards on San Nicolas 

Island, and 17,600 lizards on Santa 

Barbara Island (including Sutil Island). 

Purpose of the Regulatory Action. 

Under the Endangered Species Act of 

1973, we may be petitioned to list, 

delist, or reclassify a species. In 2004, 

we received a petition from the Navy 

asserting that each of the three 

occurrences of island night lizard 

qualify for recognition as a distinct 

population segment (DPS) under the 

DPS Policy (61 FR 4722; February 7, 

1996) and requesting that we delist the 

San Clemente and San Nicolas Island 

DPSs (Navy 2004, p. 12). In 2006, we 

published a 90-day finding (71 FR 

48900, August 22, 2006) concluding that 

the Navy’s petition provided substantial 

information supporting that delisting 

may be warranted and we thus 

announced the initiation of a status 

review for this species. On February 4, 

2013, we published a 12-month finding 

in response to the Navy’s petition and 

proposed removing the island night 

lizard from the Federal List of 

Endangered and Threatened Wildlife 

(78 FR 7908). Threats to this species 

have been largely ameliorated and all 

remaining potential threats are currently 

managed by the Navy and NPS, with the 

exception of climate change, which is 

difficult to predict. Therefore, we have 

determined in this final rule that the 

island night lizard no longer meets the 

definitions of threatened or endangered 

under the Act. This final rule removes 

the island night lizard from the Federal 

List of Endangered and Threatened 

Wildlife. 

Basis for the Regulatory Action. 

Under the Act, a species may be 

determined to be an endangered species 

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 must consider the same 

factors in delisting a species. We may 

delist a species if the best scientific and 

commercial data indicate the species is 

neither threatened nor endangered for 

one or more of the following reasons: (1) 

The species is extinct; (2) the species 

has recovered and is no longer 

threatened or endangered; or (3) the 

original scientific data used at the time 

the species was classified were in error. 

Threats to the island night lizard at 

the time of listing included destruction 

of habitat by feral goats and pigs, 

predation, and the introduction of 

nonnatives throughout the species’ 

range. We reviewed all available 

scientific and commercial information 

pertaining to the five threat factors in 

our status review of the island night 

lizard. The results of our status review 

are summarized below. 

• We consider the island night lizard 

to be ‘‘recovered’’ because all 

substantial threats to the lizard have 

been ameliorated. 

• All remaining potential threats to 

the species and its habitat, with the 

exception of climate change, are 

currently managed through 

implementation of management plans. 

• While we recognize that results 

from climate change such as rising air 

temperatures, lower rainfall amounts, 

and rising sea level are important issues 

with potential effects to the island night 

lizard and its habitat, the best available 

information does not indicate that 

potential changes in temperature, 

precipitation patterns, and rising sea 

levels would significantly impact the 

island night lizard or its habitat nor rise 

to the magnitude or severity such that 

the species would be likely to become 

an endangered species within the 

foreseeable future. We expect that the 

lizard’s susceptibility to climate change 

is somewhat reduced by its ability to 

use varying habitat types and by its 

broad generalist diet; therefore, we do 

not consider climate change to be a 

substantial threat to the species at this 

time. 

• We find that delisting the island 

night lizard is warranted and are 

removing this taxon from the Federal 


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