This action, pursuant to 5 U.S.C. 553, amends regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This rule is issued under Marketing Agreement and Order No. 930, as amended (7 CFR part 930), regulating the handling of tart cherries grown in the states of Michigan, New York, Pennsylvania, Oregon, Utah, Washington and Wisconsin. Part 930 (referred to as the “Order”) is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Board locally administers the Order and is comprised of producers and handlers of tart cherries operating within the production area, and a public member.

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Orders 13563 and 13175. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review. Additionally, because this rule does not meet the definition of a significant regulatory action, it does not trigger the requirements contained in the Executive Order 13771. See OMB's Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017, titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017).

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to a marketing order may file with USDA a petition stating that the marketing order, any provision of the marketing order, or any obligation imposed in connection with the marketing order is not in accordance with law and request a modification of the marketing order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This rule changes subcommittee size and adds term limits to subcommittee appointments under the Order. This action modifies the composition of the subcommittee which reviews exemption requests by increasing the subcommittee from three members and an alternate to a maximum of five members with no alternate. This rule also adds a five-year term limit to these appointments. This should provide more opportunities for participation and additional flexibility in staffing the subcommittee. The Board unanimously recommended this change at its March 19, 2020, meeting.

Section 930.31 of the Order authorizes the Board to have committees and subcommittees as may be necessary. Section 930.59 authorizes handler diversion of tart cherries from the reserve for specific uses including, but not limited to, new product and new market development. Section 930.62 authorizes the Board, with approval of the Secretary, to exempt cherries from the assessment, volume regulation, and reserve provisions of the Order for specified uses. Both sections authorize the Board, with the approval of the Secretary, to establish requirements necessary and incidental to the administration of the Order.

Section 930.159 of the Order's administrative requirements specifies methods of handler diversion, including using cherries or cherry products for exempt purposes prescribed under § 930.162. Section 930.162, in part, establishes a Board appointed subcommittee, as authorized under § 930.31 stated above, to assist the Board staff in reviewing the applications for exemptions. The changes will impact this subcommittee.

In seasons with volume regulation, handlers can sell cherries for exempt uses, including new products and new markets, and receive diversion credit rather than keeping that tonnage in reserve. The Board established the review subcommittee to review and grant exemption requests that have the potential to expand new markets. The subcommittee works with Board staff to carry out these tasks. Prior to this action, this subcommittee consisted of three members and one alternate, each having no handler affiliation but knowledge of the tart cherry industry. Section 930.162 further specifies that one of the members or the alternate should be the Board's public member or the Board's public member alternate, if either are available to serve. This rule increases the size of the subcommittee and includes term limits for all subcommittee appointments. The current requirement regarding the service of the Board's public member or their alternate continues to remain in effect.

The Board formed a New Product New Market Committee (Committee) to examine the current regulations regarding the subcommittee responsible for reviewing applications for exemption or the renewal of exemption. The formation and tasking of this Committee was largely the result of growing Board member perceptions that the exemption process was not fully understood or utilized by industry. The Committee reviewed the process for selecting subcommittee members, assessed subcommittee operations, and identified improvement opportunities.

During Board meetings in January and March 2020, the Committee outlined some of the challenges associated with the subcommittee, including subcommittee participation. The Committee stated the requirements, which stipulate the subcommittee shall consist of three members and one alternate, were limiting. The Committee did not recommend any changes to existing qualification requirements to serve on the subcommittee. Any subcommittee meeting and quorum requirements would be addressed in the Board's bylaws.

The Committee recommended expanding the size of the subcommittee to five members without mandating a set number of members required to conduct business. The Committee noted this adjustment would provide some flexibility in staffing the subcommittee while allowing the subcommittee to fulfill its responsibility to review and grant exemptions.

The Committee also recommended the inclusion of five-year term limits for all subcommittee appointments as this would help balance preserving subcommittee institutional knowledge with the need to include new participants and perspectives in the exemption review process. One Committee member also noted a fixed term may encourage more qualified people to pursue subcommittee participation because they would know their commitment to the Board would not be open-ended. The Committee also believed establishing a regular schedule of appointments through term limits should lead to increased awareness of when participation opportunities would be coming available.

In discussing the Committee's suggested changes, the Board was supportive of the recommendations to increase the number of seats on the subcommittee and to establish term limits for subcommittee participants. In reviewing the increase in the size of the subcommittee, the Board did not recommend a specific quorum requirement for the subcommittee to meet. However, the Board believes the additional subcommittee members would provide more candidates to draw from when scheduling subcommittee meetings and would help ensure some members were in attendance for each scheduled subcommittee meeting. The Board also agreed increasing the number of seats on the subcommittee would provide the opportunity for more participation. The Board concluded no changes should be made to the existing requirement that the public member or alternate public member, when available, serve on the subcommittee, but did decide removing the requirement for an alternate subcommittee member would simplify the structure of the subcommittee.

The Board was also supportive of establishing term limits for subcommittee members. Members agreed having term limits would increase opportunities for others to serve on the subcommittee, and qualified candidates may be more willing to participate if there is a fixed term.

Accordingly, the Board unanimously voted to increase the size of the subcommittee to a maximum of five total members with a five-year term limit for all appointments to the subcommittee. The Board believes the changes will not only improve operational flexibility and administration of the subcommittee but encourage greater industry and small business participation on the subcommittee and in new product and new market projects.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 400 producers of tart cherries in the production area and 40 handlers subject to regulation under the Order. Small agricultural producers are defined by the Small Business Administration (SBA) as those having annual receipts less than $1,000,000, and small agricultural service firms are defined as those whose annual receipts are less than $30,000,000 (13 CFR 121.201).

According to the National Agricultural Statistics Service and Board data, the average annual price for tart cherries during the 2018-19 season was approximately $0.196 per pound. With total utilization at 288.8 million pounds for the 2018-2019 season, the total 2018-2019 value of the crop utilized for processing is estimated at $56.6 million. Dividing the crop value by the estimated number of producers (400) yields an estimated average receipt per producer of $141,500. This is well below the SBA threshold for small producers. A free on board (FOB) price of $0.80 per pound for frozen tart cherries was reported by the Food Institute during the 2018-2019 season. Based on utilization, this price represents a good estimate of the price for processed cherries. Multiplying the FOB price by total utilization of 288.8 million pounds results in an estimated handler-level tart cherry value of $231 million. Dividing this figure by the number of handlers (40) yields estimated annual handler receipts of $5.8 million, which is below the SBA threshold for small agricultural service firms. Assuming a normal distribution, the majority of producers and handlers of tart cherries may be classified as small entities.

This rule will increase the size of the subcommittee and add term limits to subcommittee appointments under § 930.162. This action modifies the composition of the subcommittee which reviews exemption requests from three members and an alternate to a maximum of five members with no alternate. This rule also adds a five-year term limit to these appointments. This will provide more opportunities for participation and additional flexibility in staffing the subcommittee. The authority for these actions is provided in §§ 930.31, 930.59 and 930.62. These changes were unanimously recommended by the Board at its meeting on March 19, 2020.

It is not anticipated that this action will impose any additional costs on growers or handlers. This change is administrative in nature, does not increase reporting requirements, and will provide the Board with improved flexibility in staffing the subcommittee.

This action will have a beneficial impact as it will encourage greater industry and small business participation in applying for diversion credit for new product and new market projects under § 930.162, and expanding the market for tart cherries. The subcommittee performs the function of reviewing and granting exemption requests that have the potential to expand these markets. Increasing the maximum size of the subcommittee without mandating that all seats be filled allows for more flexibility in conducting subcommittee business. The Board also believes the additional members will provide more candidates to draw from when scheduling subcommittee meetings and help ensure some members are in attendance for each scheduled meeting. Adding a five-year term limit to subcommittee membership helps maintain subcommittee institutional knowledge while ensuring the inclusion of the perspective and insight from new participants.

This rule is expected to benefit the industry. The effects of this rule are not expected to be disproportionately greater or lesser for small handlers or producers than for larger entities.

The Board considered one alternative to this change. The Board considered making no changes either to the structure of the subcommittee or the lack of term limits for serving thereon. However, when discussing the alternative, Board members assessed that increasing the subcommittee size and the inclusion of term limits would not only increase the likelihood of subcommittee participation, but also promote increased industry confidence and trust in the subcommittee's composition and function. Therefore, the alternative was rejected.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Order's information collection requirements have been previously approved by OMB and assigned OMB No. 0581-0177, Tart Cherries Grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin. No changes in those requirements are necessary as a result of this action. Should any changes become necessary, they would be submitted to OMB for approval.

This final rule will not impose any additional reporting or recordkeeping requirements on either small or large tart cherry handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this final rule. Further, the public comment received concerning the proposal did not address the initial regulatory flexibility analysis.

AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

The Board's meeting was widely publicized throughout the tart cherry industry. All interested persons were invited to attend the meeting and participate in Board deliberations on all issues. Like all Board meetings, the March 19, 2020, meeting was a public meeting, and all entities, both large and small, were able to express views on this issue.

A proposed rule concerning this action was published in the Federal Register on July 24, 2020 (85 FR 44792). Copies of the proposed rule were also mailed or sent via email to all tart cherry handlers. The proposal was made available through the internet by USDA and the Office of the Federal Register. A 30-day comment period ending August 24, 2020, was provided for interested persons to respond to the proposal.

One comment was received in response to the proposal. However, this comment did not address the merits of the proposal. Accordingly, no changes will be made to the rule as proposed, based on the comments received.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: https://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any questions about the compliance guide should be sent to Richard Lower at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

After consideration of all relevant material presented, including the information and recommendation submitted by the Board and other available information, it is hereby found that this rule will tend to effectuate the declared policy of the Act.

For the reasons set forth in the preamble, 7 CFR part 930 is amended as follows:

This document corrects certain sections of the regulations in 7 CFR part 1400, which were implemented in the final rule that was published in the Federal Register on August 24, 2020 (85 FR 52033-52041).

The final rule amended the definitions in 7 CFR 1400.3 for “active personal management” and “significant contribution,” which apply throughout part 1400. It also removed and reserved § 1400.601, which contained definitions of “active personal management,” “significant contribution of active personal management,” and “significant contribution of the combination of active personal labor and active personal management” that applied only to Subpart G, which provides additional payment eligibility provisions for joint operations and legal entities comprised of non-family members or partners, stockholders, or persons with an ownership interest in the farming operation. The changes were intended to provide consistency in the definitions of the terms used throughout part 1400.

After publication of the rule, stakeholders notified FSA of concerns regarding potential non-intended, adverse effects to farming operations comprised solely of family members. In streamlining the definitions for consistency, these revised definitions were inadvertently made applicable to farming operations solely owned by family members. This was not the intent of this rule change, and as revised, the definitions were more restrictive than they needed to be in order to provide intended consistency in the rule. Those more restrictive definitions were not intended to apply to farm operations comprised or owned solely of family members. Therefore, this document restores § 400.601 and the previous the definitions of “active personal management” and “significant contribution” in § 1400.3 that were applicable prior to publication of the final rule on August 24, 2020. The more restrictive definitions described in § 1400.601 apply only to farming operations comprised of non-family members that are subject to a limit in the number of farm managers seeking to qualify for actively engaged in farming based on a contribution of active personal management alone.

Accordingly, 7 CFR part 1400 is corrected by making the following correcting amendments:

On April 1, 2020, the Board published a notice of proposed rulemaking to amend the Board's Privacy Act Rule, with a 30-day public comment period ending on May 1, 2020 and concurrently, in a separate notice, established BGFRS-43 as a new system of records. 1 The rulemaking proposed to add BGFRS-43 to the Board's list of exempt systems of records pursuant to 5 U.S.C. 552a(k)(2), which exempts the listed system of record from certain provisions of the Privacy Act to the extent the system contains investigatory material compiled for law enforcement purposes. The Board did not receive any comments on the proposed amendment to the Privacy Act Rule and therefore, the Board is adopting the proposed rule as final, without modification.

Accordingly, the Board is amending 12 CFR 261a.12(b) to redesignate paragraph (b)(11) referencing BGFRS/OIG-1 Investigative Records as paragraph (b)(12) and adding “BGFRS-43, Security Sharing Platform” as new paragraph (b)(11).

In accordance with 5 U.S.C. 605, the Board certifies that this rule will not have a significant economic impact on a substantial number of small entities because it applies only to internal personnel matters of the agency.

This rule is exempt from the rulemaking provisions of the Administrative Procedure Act, 5 U.S.C. 553, and the Congressional Review Act, pursuant to 5 U.S.C. 804(3)(B) and (C), because it is a rule relating to agency management or personnel and a rule of agency procedure that does not substantially affect the rights or obligations of non-agency parties.

For the reasons stated in the preamble, the Board amends 12 CFR part 261a as follows:

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2018-08-01, Amendment 39-19254 (83 FR 17617, April 23, 2018) (AD 2018-08-01) and add a new AD. AD 2018-08-01 applied to Airbus Helicopters Model EC225LP helicopters with certain serial-numbered swashplates part number (P/N) 332A31-3074-00 or P/N 332A31-3074-01 installed. The NPRM published in the Federal Register on June 3, 2020 (85 FR 34118). The NPRM proposed to require determining the date of manufacture of the swashplate and establishing a life limit of 12 years since the date of manufacture. The NPRM proposed to retain the repetitive visual inspections of AD 2018-08-01 to inspect each yoke for a crack at intervals not to exceed 15 hours time-in-service (TIS) for swashplates that have accumulated less than 7 years since the date of manufacture. For a swashplate that has accumulated 7 or more years, but less than 12 years since the date of manufacture, the NPRM proposed to require removing the grease and stripping certain areas of the yokes and inspecting these areas for corrosion, pitting, loss of material, and a crack. If there are no cracks, the NPRM proposed to require performing a dye penetrant inspection of the yoke for a crack. Depending on the results of this inspection, the NPRM proposed to require either repairing the surface of the swashplate or removing it from service.

The NPRM was prompted by EASA AD No. 2019-0074, dated March 28, 2019 (EASA AD 2019-0074) issued by EASA, which is the Technical Agent for the Member States of the European Union, to supersede EASA AD No. 2017-0191R2, dated December 15, 2017 (EASA AD 2017-0191R2). EASA AD 2019-0074 followed Airbus Helicopters revising Emergency Alert Service Bulletin (EASB) No. 05A051, Revision 1, dated November 16, 2017, to Revision 2, dated February 26, 2019, to establish a life limit (also called a service life limit) of 12 years for the swashplate and add a reporting requirement if there is a crack or corrosion in a yoke. EASA advises that additional analysis determined that it is necessary to introduce the new life limit for the affected swashplates. Accordingly, EASA AD 2019-0074 retains the requirements of EASA AD 2017-0191R2 and adds a life limit and a reporting requirement.

Additionally, when the FAA issued AD 2018-08-01 to address the unsafe condition of a crack in a swashplate yoke, the FAA did not require stripping certain yokes and performing a one-time inspection within 100 hours TIS for corrosion and a crack as specified in EASA AD 2017-0191R2, as there was sufficient time to allow for notice and comment prior to this long-term AD requirement going into effect. The FAA has determined that this inspection is needed to address this unsafe condition. Accordingly, the NPRM also proposed to require, within 100 hours TIS and for certain yokes, removing the grease and stripping certain areas of the yokes and inspecting these areas for corrosion, pitting, loss of material, and a crack.

The FAA gave the public the opportunity to participate in developing this AD. The FAA received no comments on the NPRM or on the determination of the cost to the public.

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

The EASA AD requires performing a non-destructive inspection only if there is doubt whether there is a crack. Instead, this AD requires a visual inspection and if there are no cracks, requires a non-destructive inspection. The EASA AD specifies instructions for reporting inspection reports; this AD does not.

The FAA reviewed one document that co-publishes two Airbus Helicopters EASB identification numbers: EASB No. 05A051 for Model EC225LP helicopters and EASB No. 05A046 for non-FAA type-certificated Model EC725AP helicopters, each Revision 2 and dated February 26, 2019 (EASB 05A051 and EASB 05A046). EASB 05A051 is incorporated by reference in this AD. EASB 05A046 is not incorporated by reference in this AD.

This service information specifies inspections for swashplate P/N 332A31-3074-00 and P/N 332A31-3074-01. This service information specifies procedures for a repetitive inspection of the yokes for a crack and a one-time inspection of the stripped yokes for corrosion and a crack. If in doubt about whether there is a crack, this service information specifies performing a non-destructive inspection. This service information also specifies touching up the swashplate with varnish if there is corrosion, removing any damage within allowable limits, and refinishing the yokes. If there is a crack in a yoke, this service information specifies replacing the swashplate. This service information also specifies a life limit of 12 years since the date of manufacture for the swashplates and reporting requirements if a crack or corrosion is discovered.

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

The FAA reviewed one document that co-publishes two Airbus Helicopters EASB identification numbers: EASB No. 05A051 for Model EC225LP helicopters and EASB No. 05A046 for non-FAA type-certificated Model EC725AP helicopters, each Revision 1 and dated November 16, 2017. Revision 1 of this service information specifies the same inspections as Revision 2 of this service information. However, Revision 2 of this service information clarifies some of the inspection instructions and adds a life limit and a reporting requirement.

The FAA estimates that this AD affects 26 helicopters of U.S. registry. The FAA estimates that operators may incur the following costs in order to comply with this AD. Labor rates are estimated at $85 per work-hour.

Determining the date of manufacture of the swashplate takes about 0.5 work-hour for an estimated cost of $43 per helicopter and $1,118 for the U.S. fleet.

Inspecting the yokes takes about 0.25 work-hour for an estimated cost of $21 per helicopter and $546 for the U.S. fleet per inspection cycle.

Removing grease, stripping the yokes, and inspecting the stripped yokes takes about 8 work-hours, for a total estimated cost of $680 per helicopter.

Dye-penetrant inspecting a yoke for a crack takes about 6 work-hours and parts cost about $50, for an estimated cost of $560 per yoke.

Removing any corrosion or repairing damage within the allowable limit takes about 3 work-hours, for an estimated cost of $255 per yoke.

Replacing the swashplate takes about 6 work-hours, and parts cost about $85,661 for an estimated cost of $86,171 per instance.

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.

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

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

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

(3) Will 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 amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2020-0079, dated April 1, 2020 (EASA AD 2020-0079) (also referred to as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Helicopters Model EC225LP helicopters. This AD was prompted by a report of a manufacturing and control issue regarding the ceramic balls of the bearing installed in the swashplate assembly of the main rotor mast assembly.

The FAA is issuing this AD to address defective ceramic balls in the bearing installed in the swashplate assembly of the main rotor mast assembly, which could lead to premature spalling of the ball itself and of the bearing, loss of function of the bearing, and overload of the main rotor mast scissor, resulting in reduced control of the helicopter. See the MCAI for additional background information.

EASA AD 2020-0079 describes procedures for repetitive inspections of the main rotor mast swashplate assembly for discrepancies (ceramic balls that have a hard point or sensitive axial play or both), and replacement of an affected main rotor mast assembly with a serviceable main rotor mast assembly. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the State of Design Authority, the FAA has been notified of the unsafe condition described in the MCAI referenced above. The FAA is issuing this AD because the FAA evaluated all pertinent information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.

This AD requires accomplishing the actions specified in EASA AD 2020-0079 described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this AD and except as discussed under “Difference Between this AD and the MCAI.”

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA initially worked with Airbus and EASA to develop a process to use certain EASA ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has since coordinated with other manufacturers and civil aviation authorities (CAAs) to use this process. As a result, EASA AD 2020-0079 is incorporated by reference in this final rule. This AD, therefore, requires compliance with EASA AD 2020-0079 in its entirety, through that incorporation, except for any differences identified as exceptions in the regulatory text of this 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 the EASA AD. Service information specified in EASA AD 2020-0079 that is required for compliance with EASA AD 2020-0079 is available on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2020-0978.

Although the service information referenced in EASA AD 2020-0079 specifies to return affected parts to the manufacturer, this AD does not include that requirement.

The FAA considers this AD interim action. If final action is later identified, the FAA might consider further rulemaking then.

Section 553(b)(3)(B) of the Administrative Procedure Act (5 U.S.C.) authorizes agencies to dispense with notice and comment procedures for rules when the agency, for “good cause” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without seeking comment prior to the rulemaking.

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because defective ceramic balls in the bearing installed in the swashplate assembly of the main rotor mast assembly could lead to premature spalling of the ball itself and of the bearing, loss of function of the bearing, and overload of the main rotor mast scissor, resulting in reduced control of the helicopter. In addition, the compliance time for the required action is shorter than the time necessary for the public to comment and for publication of the final rule. Therefore, the FAA finds good cause that notice and opportunity for prior public comment are impracticable. In addition, for the reasons stated above, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, the FAA invites you to send any written comments, data, or views about this AD. 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 copy of the comments. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2020-0978; Project Identifier MCAI-2020-00459-R” at the beginning of your 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, as well as a report summarizing each substantive public contact with FAA personnel concerning this AD. The FAA will consider all comments received by the closing date for comments. The FAA may amend this AD because of those comments.

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 AD 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 AD, 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 AD. Submissions containing CBI should be sent to Kathleen Arrigotti, Aviation Safety Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3218; email: kathleen.arrigotti@faa.gov. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The requirements of the RFA do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because the FAA has determined that it has good cause to adopt this rule without notice and comment, RFA analysis is not required.

The FAA estimates that this AD affects 30 helicopters of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates the following costs to do any necessary on-condition action that would be required based on the results of any required action. The FAA has no way of determining the number of helicopters that might need this on-condition action:

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 AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

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

(2) Will not affect intrastate aviation in Alaska.

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

This AD is a final rule that involves requirements affecting flight safety, and the FAA did not provide you with notice and an opportunity to provide your comments prior to it becoming effective. However, the FAA invites you to participate in this rulemaking by submitting written comments, data, or views. The most helpful comments reference a specific portion of the AD, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit them only one time.

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 file in the docket all comments received, as well as a report summarizing each substantive public contact with FAA personnel concerning this rulemaking during the comment period. The FAA will consider all the comments received and may conduct additional rulemaking based on those comments.

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 final rule 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 final rule, 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 final rule. Submissions containing CBI should be sent to Daniel E. Moore, Aviation Safety Engineer, Regulations & Policy Section, Rotorcraft Standards Branch, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone 817-222-5110; email daniel.e.moore@faa.gov. Any commentary that the FAA receives which 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 No. 2020-0185, dated August 19, 2020, to correct an unsafe condition for Leonardo S.p.A. Helicopters, formerly Finmeccanica S.p.A, AgustaWestland S.p.A., Agusta S.p.A.; and AgustaWestland Philadelphia Corporation, formerly Agusta Aerospace Corporation Model AB139 and AW139 helicopters, all serial numbers, if equipped with emergency flotation kit part number (P/ N) 4G9560F00111 (15 passengers) or P/N 4G9560F00211 (18 passengers). An inadvertent raft activation and deployment event occurred on a Model AW139 helicopter during flight. EASA advises that following the deployment, the raft separated from the helicopter and was lost at sea. EASA states that investigation is on-going into the cause of this event. Model AB139 helicopters are subject to the same unsafe condition due to design similarity to the AW139 helicopters. EASA advises that this condition, if not detected and corrected, may lead to further unintended activation and deployment of the raft in flight and separation with possible impact on the rotors, resulting in reduced control of the helicopter.

To address this unsafe condition, Leonardo Helicopters has issued Alert Service Bulletin No. 139-648, dated August 10, 2020 (ASB 139-648) to provide replacement instructions for certain reservoirs and a one-time inspection for all other reservoirs to verify that the actuator cable and the valve pull rod are correctly installed.

Accordingly, the EASA AD requires, for some helicopters, replacement of affected reservoirs and, for other helicopters, inspections of the valve pull rod and the actuator cable of the raft and, depending on findings, accomplishment of the applicable corrective action(s). The EASA AD also prohibits (re)installation of an affected reservoir on any helicopter.

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

The FAA reviewed ASB 139-648, which specifies procedures to replace certain reservoirs and return them to the supplier, inspect the measurement of the actuator cable between the face of the pull rod and the back of the valve cap, inspect the actuator cable by inspecting the clearance between the sphere at the end of the actuator cable and the activation system, and adjust the actuator cable.

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

This AD requires the following:

• For helicopters with certain serial-numbered right-hand (RH) or left-hand (LH) reservoirs P/N 3G2560V01951 or P/N 3G2560V01251 installed, within 25 hours time-in-service (TIS), removing each affected reservoir from service.

• For helicopters with certain other serial-numbered RH or LH reservoirs P/N 3G2560V01951 or P/N 3G2560V01251 installed, within 25 hours TIS or before the reservoir accumulates 55 total hours TIS since first installation on a helicopter, whichever occurs later, inspecting the valve pull rod of each reservoir. If the measurement of the actuator cable between the face of the pull rod and the back of the valve cap exceeds 68.5 mm, this AD requires replacing the reservoir before further flight.

• For helicopters with certain other serial-numbered RH or LH reservoirs P/N 3G2560V01951 or P/N 3G2560V01251 installed, this AD requires, within 25 hours TIS, inspecting the actuator cable of each reservoir. If the clearance between the sphere at the end of the actuator cable and the activation system exceeds 5.0 + 0.00/−2.0 mm, this AD requires adjusting the actuator cable before further flight.

This AD also prohibits installing certain serial-numbered reservoirs P/N 3G2560V01951 or P/N 3G2560V01251 on any helicopter and prohibits installing any other serial-numbered reservoir P/N 3G2560V01951 or P/N 3G2560V01251 on any helicopter unless the actuator cable of the reservoir has been inspected, and if required, the actuator cable adjusted.

The EASA AD states one of the compliance times to inspect the valve pull rod is since installation of a serviceable reservoir due removal of an affected reservoir, whereas this AD does not. The EASA AD requires returning removed reservoirs to the supplier, whereas this AD requires removing certain reservoirs from service and replacing other certain reservoirs instead.

The requirements of the Regulatory Flexibility Act (RFA) do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because FAA has determined that it has good cause to adopt this rule without notice and comment, RFA analysis is not required.

The FAA estimates that this AD affects 130 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates that operators may incur the following costs in order to comply with this AD.

Replacing a reservoir takes about 1 work-hour and parts cost about $400 for an estimated cost of $485 per reservoir.

Inspecting the valve pull rod of the reservoirs takes about 1 work-hour for an estimated cost of $85 per helicopter and $11,050 for the U.S. fleet.

Inspecting the actuator cables takes about 0.25 work-hour for an estimated cost of $21 per helicopter and $2,730 for the U.S. fleet. If required, adjusting an actuator cable takes about 0.75 work-hour for an estimated cost of $64 per cable.

Section 553(b)(3)(B) of the Administrative Procedure Act (5 U.S.C.) authorizes agencies to dispense with notice and comment procedures for rules when the agency, for “good cause” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without seeking comment prior to the rulemaking.

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because the required corrective actions must be completed within 25 hours TIS or before a component accumulates 55 total hours TIS since first installation on a helicopter, a short time period of about two months based on the average flight-hour utilization rate of these helicopters. Therefore, notice and opportunity for prior public comment are impracticable and contrary to public interest pursuant to 5 U.S.C. 553(b)(3)(B). In addition, for the reasons stated above, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days.

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 AD will not have federalism implications under Executive Order 13132. This AD will 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, I certify that this AD:

1. Is not a “significant regulatory action” under Executive Order 12866, and

2. Will not affect intrastate aviation in Alaska.

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to Airbus Helicopters Model AS332C, AS332C1, AS332L, and AS332L1 helicopters with an M/R hub part number (P/N) 332A31-0001-00, 332A31-0001-01, 332A31-0001-02, 332A31-0001-03, 332A31-0001-04, 332A31-0001-05, or 332A31-0001-06 installed. The NPRM published in the Federal Register on July 16, 2020 (85 FR 43160). The NPRM proposed to require removing at least one M/R “NR” sensor and borescope inspecting the phonic wheel lock washer for correct height of the lock washer. The NPRM also proposed to prohibit the installation of an affected M/R hub unless it has successfully passed the required inspection for correct lock washer installation. The proposed requirements were intended to prohibit the incorrect assembly of the M/R hub, which, if not corrected, could result in failure of the M/R hub components and subsequent loss of control of the helicopter.

The NPRM was prompted by EASA AD No. 2019-0172, dated July 18, 2019, issued by EASA, which is the Technical Agent for the Member States of the European Union. This EASA AD was issued to correct an unsafe condition for Airbus Helicopters Model AS 332 C, AS 332 C1, AS 332 L, and AS 332 L1 helicopters with an M/R hub P/N 332A31-0001-00, 332A31-0001-01, 332A31-0001-02, 332A31-0001-03, 332A31-0001-04, 332A31-0001-05, or 332A31-0001-06 installed. EASA advises of reported occurrences of “NR” sensor fluctuation and subsequent investigation identifying incorrect positioning of the M/R hub phonic wheel due to incorrect installation of the M/R mast nut press screws during maintenance of the M/R hubs. EASA advises that this condition, if not detected and corrected, could lead to failure of M/R hub components, possibly resulting in loss of helicopter control. Accordingly, the EASA AD requires a one-time inspection of the lock washer position and depending on findings, replacing the M/R hub.

The FAA gave the public the opportunity to participate in developing this final rule, but the FAA did not receive any comments on the NPRM or on the determination of the cost to the public.

These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA of the unsafe condition described in its AD. The FAA is issuing this AD after evaluating all of the information provided by EASA and determining the unsafe condition exists and is likely to exist or develop on other helicopters of the same type designs and that air safety and the public interest require adopting these AD requirements as proposed.

The EASA AD requires using a flashlight and visually inspecting the position of the lock washer, and further specifies that using an endoscope can facilitate that inspection. This AD requires borescope inspecting for the correct height of the lock washer instead. After inspecting, the EASA AD requires reinstalling the removed “NR” sensor(s), while this AD requires installing airworthy “NR” sensor(s) instead. If the lock washer is in an incorrect position, the EASA AD requires replacing the M/R hub, whereas this AD requires repairing or replacing the M/R hub with an airworthy M/R hub instead.

Airbus Helicopters has issued Alert Service Bulletin No. AS332-62.00.76, Revision 0, dated May 27, 2019, which specifies inspecting the position of the M/R hub lock washer for civilian Model AS332C, C1, L, and L1 and military Model AS332B, B1, F1, M, and M1 helicopters.

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

The FAA estimates that this AD affects 11 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates that operators may incur the following costs in order to comply with this AD.

Removing an “NR” sensor and borescope inspecting takes about 0.5 work-hour for an estimated cost of $43 per helicopter and $473 for the U.S. fleet.

Repairing the M/R hub takes about 10 work-hours and parts cost up to about $3,000 for an estimated cost of up to $3,850 and replacing the M/R hub takes about 8 work-hours and parts cost about $50,000 for an estimated cost of $50,680.

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 helicopters identified in this rulemaking action.

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

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

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

(3) Will 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 amends 14 CFR part 39 as follows:

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus Helicopters Model EC130B4 helicopters. The NPRM published in the Federal Register on August 6, 2020 (85 FR 47714). The NPRM was prompted by reports of inflight detachment of the LH side cabin sliding doors and cases of impact damage on the main rotor blades, which were caused by degradation of the sliding door locking mechanism. The NPRM proposed to require repetitive checks (measurements) of the load that operates the sliding door opening mechanism, repetitive inspections of the markings of the attachment screws for proper alignment, modifying the attachment system of the sliding door, and corrective actions if necessary, as specified in an EASA AD.

The FAA is issuing this AD to address degradation of the locking mechanism, which could lead to further events of inflight detachment of a LH side cabin sliding door, and possibly result in damage to the helicopter and injury to persons on the ground.

The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2020-0069, dated March 24, 2020 (EASA AD 2020-0069) (also referred to as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for all Airbus Helicopters Model EC130B4 helicopters. See the MCAI for additional background information.

The FAA gave the public the opportunity to participate in developing this final rule. The FAA has considered the comments received. An anonymous commenter indicated its support for the NPRM.

The FAA reviewed the relevant data, considered the comment received, and determined that air safety and the public interest require adopting this final rule as proposed, except for minor editorial changes. The FAA has determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM for addressing the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

EASA AD 2020-0069 describes procedures for repetitive checks (measurements) of the load that operates the sliding door opening mechanism, repetitive inspections of the markings of the attachment screws of the rear LH upper catch for proper alignment, modifying the attachment system of the sliding door, and corrective actions if necessary. Corrective actions include adjusting the rear LH upper catch to increase the load required to operate the sliding door opening mechanism, inspecting the rear LH upper catch to determine if any anchor nut is not locked, and replacing the anchor nuts of the rear LH upper catch. EASA AD2020-0069 also specifies that doing the modification of the attachment system of the sliding door is a terminating action for the repetitive inspections of the markings of the attachment screws of the rear LH upper catch for proper alignment.

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

The FAA estimates that this AD affects 159 helicopters of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates the following costs to do any necessary on-condition actions that would be required based on the results of any required actions. The FAA has no way of determining the number of helicopters that might need these on-condition actions:

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.

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

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

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

(3) Will 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 amends 14 CFR part 39 as follows:

Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act provides that these regulations should, among other things, prohibit consumer deception and the use of misleading statements on labels and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the FAA Act pursuant to section 1111(d) of the Homeland Security Act of 2002, codified at 6 U.S.C. 531(d). The Secretary has delegated the functions and duties in the administration and enforcement of these provisions to the TTB Administrator through Treasury Order 120-01, dated December 10, 2013 (superseding Treasury Order 120-01, dated January 24, 2003).

Part 4 of the TTB regulations (27 CFR part 4) authorizes TTB to establish definitive viticultural areas and regulate the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) sets forth standards for the preparation and submission to TTB of petitions for the establishment or modification of American viticultural areas (AVAs) and lists the approved AVAs.

Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region having distinguishing features, as described in part 9 of the regulations, and a name and a delineated boundary, as established in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to the wine's geographic origin. The establishment of AVAs allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of an AVA is neither an approval nor an endorsement by TTB of the wine produced in that area.

Section 4.25(e)(2) of the TTB regulations (27 CFR 4.25(e)(2)) outlines the procedure for proposing an AVA and provides that any interested party may petition TTB to establish a grape-growing region as an AVA. Section 9.12 of the TTB regulations (27 CFR 9.12) prescribes standards for petitions for the establishment or modification of AVAs. Petitions to establish an AVA must include the following:

• Evidence that the area within the proposed AVA boundary is nationally or locally known by the AVA name specified in the petition;

• An explanation of the basis for defining the boundary of the proposed AVA;

• A narrative description of the features of the proposed AVA affecting viticulture, such as climate, geology, soils, physical features, and elevation, that make the proposed AVA distinctive and distinguish it from adjacent areas outside the proposed AVA boundary;

• The appropriate United States Geological Survey (USGS) map(s) showing the location of the proposed AVA, with the boundary of the proposed AVA clearly drawn thereon; and

• A detailed narrative description of the proposed AVA boundary based on USGS map markings.

TTB received a petition from Julie Bell of Per La Vita LLC, on behalf of local vineyard owners and winemakers, proposing to establish the “Tehachapi Mountains” AVA. The proposed AVA is located in Kern County, California, and is not within any established AVA. The proposed Tehachapi Mountains AVA contains approximately 58,000 acres and has 6 commercially-producing vineyards covering approximately 25 acres, as well as 1 winery. The distinguishing features of the proposed Tehachapi Mountains AVA include its topography and climate.

The proposed Tehachapi Mountains AVA is a broad, saddle-shaped region of mountain foot slopes, high valleys and rolling hills situated at the summit of the southernmost pass of the Sierra Nevada mountain range. The proposed AVA has an east-west orientation, and the terrain at the east and west ends of the “saddle” rise sharply before falling away to the lower elevations of the San Joaquin Valley, to the west, and the Mojave Desert, to the east. Elevations within the proposed AVA range from 3,600 and 5,400 feet, with the majority of the area situated between 3,800 and 4,600 feet. Slope angles average between 3 and 11 degrees within the proposed AVA. According to the petition, the high altitude of the proposed AVA exposes grapes to higher intensity ultraviolet light, which stimulates synthesis of phenolic molecules and produces deep colors and thick skins. Additionally, the gentle slope angles reduce the risk of erosion and allow cold air to drain away from vineyards planted in the proposed AVA.

The petition states that topography also affects the climate of the proposed Tehachapi Mountains AVA and allows for successful viticulture, even at such high elevation. The petition notes that wine grapes are generally grown at elevations below 3,000 feet in the United States and around the world, due to colder temperatures at higher elevations that can permanently damage or kill vines. However, the proposed AVA's location within a mountain pass allows prevailing west winds from the San Joaquin Valley and east winds from the Mojave Desert to bring warm air from those regions into the proposed AVA. As a result, the proposed AVA has an average growing season of 198 days and accumulates an average of 2,762 growing degree days  1 (GDDs) annually, both of which are sufficient for ripening late season varietals such as syrah, zinfandel, and cabernet sauvignon. Warm air from the neighboring valleys also results in typical winter low temperatures within the proposed AVA that range from 35 to 26 degrees Fahrenheit. The petition notes that grapevines can suffer permanent damage at temperatures between 0 and −5 degrees Fahrenheit, so vines grown in the proposed AVA are not at risk from serious frost damage.

The Tehachapi Mountains range continues to the south of the proposed AVA. Elevations rise to over 7,000 feet, and slope angles are over 30 degrees. To the north of the proposed Tehachapi Mountains AVA are the Piute Mountains, which have elevations of over 6,000 feet and also have slope angles over 30 degrees. In portions of the northern region that are not exposed to the Mojave Desert or San Joaquin Valley, growing seasons are shorter and GDD accumulations are lower than within the proposed AVA. For example, to the north-northwest of the proposed AVA, the community of Johnsondale is at an elevation of 4,700 feet, has a growing season of 139 days, and accumulates an average of 2,149 GDDs. However, regions with more direct exposure to the desert or the valley can have longer growing seasons and greater GDD accumulations. For example, the community of Walker Pass, to the north-northeast of the proposed AVA at an elevation of 5,572 feet, is more exposed to the Mojave Desert than the proposed AVA and has an average growing season of 216 days and accumulates an average of 3,834 GDDs.

To the east of the proposed Tehachapi Mountains AVA is the Mojave Desert, which has an average elevation of 2,600 feet. The growing season is longer than within the proposed AVA, averaging 231 days at Edwards Air Force Base. GDD accumulations are also much higher, averaging 4,881 annually. To the west of the proposed AVA is the San Joaquin Valley, where elevations drop below 500 feet near Bakersfield. The growing season length in Bakersfield averages 349 days, and an average annual GDD accumulation of 5,521.

TTB published Notice No. 191 in the Federal Register on June 26, 2020 (85 FR 38345), proposing to establish the Tehachapi Mountains AVA. In the notice, TTB summarized the evidence from the petition regarding the name, boundary, and distinguishing features for the proposed AVA. The notice also compared the distinguishing features of the proposed AVA to the surrounding areas. For a detailed description of the evidence relating to the name, boundary, and distinguishing features of the proposed AVA, and for a detailed comparison of the distinguishing features of the proposed AVA to the surrounding areas, see Notice No. 191.

In Notice No. 191, TTB solicited comments on the accuracy of the name, boundary, and other required information submitted in support of the petition. The comment period closed August 25, 2020.

In response to Notice No. 191, TTB received a total of eight comments. The commenters included the Tehachapi city manager, the Mayor of Tehachapi City and Tehachapi City Council, the Second District supervisor for Kern County, California State Assemblyman Vince Fong, U.S. Representative Kevin McCarthy, and local wine industry members. All of the comments supported the establishment of the proposed Tehachapi Mountains AVA.

After careful review of the petition and the comments received in response to Notice No. 191, TTB finds that the evidence provided by the petitioner supports the establishment of the Tehachapi Mountains AVA. Accordingly, under the authority of the FAA Act, section 1111(d) of the Homeland Security Act of 2002, and parts 4 and 9 of the TTB regulations, TTB establishes the “Tehachapi Mountains” AVA in Kern County, California, effective 30 days from the publication date of this document.

See the narrative description of the boundary of the Tehachapi Mountains AVA in the regulatory text published at the end of this final rule.

The petitioners provided the required maps, and they are listed below in the regulatory text. You may also view the Tehachapi Mountains AVA boundary on the AVA Map Explorer on the TTB website, at https://www.ttb.gov/wine/ava-map-explorer.

Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. For a wine to be labeled with an AVA name or with a brand name that includes an AVA name, at least 85 percent of the wine must be derived from grapes grown within the area represented by that name, and the wine must meet the other conditions listed in 27 CFR 4.25(e)(3). If the wine is not eligible for labeling with an AVA name and that name appears in the brand name, then the label is not in compliance and the bottler must change the brand name and obtain approval of a new label. Similarly, if the AVA name appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label. Different rules apply if a wine has a brand name containing an AVA name that was used as a brand name on a label approved before July 7, 1986. See 27 CFR 4.39(i)(2) for details.

With the establishment of the Tehachapi Mountains AVA, its name, “Tehachapi Mountains,” will be recognized as a name of viticultural significance under § 4.39(i)(3) of the TTB regulations (27 CFR 4.39(i)(3)). The text of the regulations clarifies this point. Consequently, wine bottlers using the name “Tehachapi Mountains” in a brand name, including a trademark, or in another label reference as to the origin of the wine, will have to ensure that the product is eligible to use the AVA name as an appellation of origin. TTB is not designating “Tehachapi,” standing alone, as a term of viticultural significance if the proposed AVA is established, in order to avoid potential conflicts with current label holders who use the word “Tehachapi” in a brand name or a fanciful name on their labels. Accordingly, the proposed part 9 regulatory text set forth in this document specifies only the full name “Tehachapi Mountains” as a term of viticultural significance for purposes of part 4 of the TTB regulations.

TTB certifies that this regulation will not have a significant economic impact on a substantial number of small entities. The regulation imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of an AVA name would be the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required.

It has been determined that this final rule is not a significant regulatory action as defined by Executive Order 12866 of September 30, 1993. Therefore, no regulatory assessment is required.

Karen A. Thornton of the Regulations and Rulings Division drafted this final rule.

For the reasons discussed in the preamble, TTB amends title 27, chapter I, part 9, Code of Federal Regulations, as follows:

The mission of the Forest Service is to sustain the health, diversity, and productivity of the Nation's forests and grasslands to meet the needs of present and future generations. The National Environmental Policy Act (NEPA) has twin goals of requiring Federal agencies (1) to consider the significant environmental impacts of their proposed actions and (2) to inform the public that environmental concerns were considered in the decision-making process. These goals are not only complementary to the Agency's mission, but such informed decision-making is essential to its achievement. The Agency devotes considerable financial and personnel resources to NEPA analyses and documentation, completing on average 1,588 categorical exclusion (CE) determinations, 266 environmental assessments (EAs), and 39 environmental impact statements (EISs) annually (based on Fiscal Years 2014-2019). The Agency is amending its NEPA regulations as described in this final rule to make more efficient use of those resources to fulfill NEPA's requirements and, in turn, its mission. The final rule is consistent with the Council on Environmental Quality's (CEQ's) intent to ensure that Federal agencies conduct environmental reviews in a coordinated, consistent, predictable, and timely manner, and to reduce unnecessary burdens and delays (40 CFR 1500.1).

An increasing percentage of the Agency's resources have been spent each year to provide for wildfire suppression, resulting in fewer resources available for other management activities, such as restoration. In 1995, wildland fire management funding made up 16 percent of the Forest Service's annual spending, compared to 57 percent in 2018. Along with a shift in funding, there has also been a corresponding shift in staff from non-fire to fire programs, with a 39 percent reduction in all non-fire personnel since 1995.

The Consolidated Appropriations Act of 2018 (2018 Omnibus Bill) included new budget authority for fighting wildfires, in addition to regular appropriations. While this budget stability is welcome, the trends discussed above make it imperative that the Agency makes the most efficient use of available funding and resources consistent with its statutory authorities to fulfill its environmental analysis and decision-making responsibilities.

On January 3, 2018, the Agency published an Advance Notice of Proposed Rulemaking (ANPR) (83 FR 302) announcing its intent to revise its NEPA procedures with the goal of increasing the efficiency of environmental analysis. The Agency received 34,674 comments in response to the ANPR, of which 1,229 were unique. Most of the unique comments expressed support for the Agency's effort to identify efficiencies in the NEPA process. The unique comments in support of the ANPR all generally acknowledged that there is room for increased efficiency in the Agency's NEPA process. Some of these comments expressed unqualified support for increasing efficiency; other comments supported the Agency's goals but included caveats that these gains should not come at a cost to public involvement or conservation of natural resources.

On June 13, 2019, the Agency published a proposed rule (84 FR 27544) proposing revisions to its NEPA procedures. Following an initial 60-day comment period that was extended for 14 days in response to requests from the public, the Agency received roughly 103,000 comments. Roughly 6,200 comments were unique, individual comments; the remainder were organized response campaign comments (form letters). A detailed summary of comments on the proposed rule and the Agency's response follows below.

After the Forest Service rulemaking process had begun, CEQ published an advance notice of proposed rulemaking on June 20, 2018, announcing that it was “considering updating its implementing regulations for the procedural provisions of the National Environmental Policy Act” (83 FR 28591). On January 10, 2020, after publication of the Forest Service's proposed rule, CEQ published a proposed rule to revise its regulations at 40 CFR parts 1500-1508 (85 FR 1684). On July 16, 2020, CEQ published a final rule revising its regulations (85 FR 43304).

The Council on Environmental Quality's revised regulations took effect on September 14, 2020 (40 CFR 1506.13). Where existing Forest Service NEPA procedures are inconsistent with CEQ's revised regulations, CEQ's revised regulations shall apply, unless there is a clear and fundamental conflict with the requirements of another statute (40 CFR 1507.3(a)). Per CEQ's revised regulations, the Forest Service shall develop, as necessary, proposed procedures to implement the CEQ's revised regulations no more than 12 months after September 14, 2020, including to eliminate any inconsistencies with CEQ's revised regulations (40 CFR 1507.3(b)).

In light of CEQ's revised regulations, the Forest Service's final rule is of limited scope. The Forest Service is amending its NEPA regulations to add only the new and expanded CEs and a Determination of NEPA Adequacy provision as described in more detail below. Other changes to the Forest Service's NEPA regulations that were included in the proposed rule, along with associated comments, will be reconsidered in association with the Agency's review of its NEPA procedures as directed by CEQ's revised regulations. These changes include, but are not limited to, revisions to the Agency's scoping and public engagement requirements, schedule of proposed actions, condition-based management, classes of actions that normally require an EIS, procedures associated with CE determinations, and use of other agency CEs.

The amendments in the final rule will increase efficiency in the Agency's environmental analysis and decision-making while meeting NEPA's requirements and fully honoring the Agency's environmental stewardship responsibilities. The final rule adds a Determination of NEPA Adequacy provision, which outlines a process for determining whether a previously completed Forest Service NEPA analysis can satisfy NEPA's requirements for a subsequently proposed action. The final rule also establishes six new CEs, consolidates two existing CEs into one, and expands two existing CEs. The six new CEs include activities related to recreation special uses, administrative sites, recreation sites, and restoration and resilience projects, along with two CEs for certain road management projects. Two existing CEs are consolidated into one covering clerical modification or reauthorization of existing special uses. The two expanded CEs cover (1) approval, modification, or continuation of special use authorizations on up to 20 acres of NFS lands and (2) decommissioning of both unauthorized roads and trails and National Forest System roads and trails. These CEs are described in greater detail in the comment responses below and in the document titled, “Supporting Statement: Categorical Exclusions For Certain Special Uses, Infrastructure, and Restoration Projects,” available at https://www.fs.fed.us/emc/nepa/revisions/index.shtml.

Additionally, to avoid public confusion the final rule includes a technical amendment to remove and reserve paragraph § 220.6(e)(10), which was enjoined in Sierra Club v. Bosworth, 510 F.3d 1016 (9th Cir. 2007).

The proposed rule would have reordered the content of §§ 220.5, 220.6., and 220.7 to align with the levels of NEPA documentation (CE, EA, EIS). The final rule does not reorder the content of these sections.

Comments expressed a wide range of opinions—both strongly for and against—the proposed rule. Comments expressing support for the proposed rule stated that it was a means to improve the Agency's NEPA processes. Other comments, however, opposed various provisions of the proposed rule, expressing concern that the revisions could: (1) Diminish social, economic, or environmental outcomes and lead to abuse; (2) result in inadequate environmental analysis and undermine the Forest Service's mission; (3) reduce the opportunity for public comment and environmental review of projects; (4) and erode public trust, violate existing laws and regulations, and increase potential litigation.

Response: The Agency notes the general comments in support of or in opposition to the rule. The Agency has carefully considered the input from the public, other government entities, and Tribes and has made several adjustments to the final rule to address the concerns described above. These changes are described in more detail below and include, for example, not moving forward with some of the proposed CEs and adding additional limitations to other CEs. Throughout the rulemaking process, the Agency's goal has been to develop a final rule that enables the Agency to efficiently deliver environmental analysis to decision-makers that is scientifically based, is of high quality, and honors environmental stewardship responsibilities. The final rule achieves this goal and will facilitate decision-making that fulfills the Agency's mission of sustaining the health, diversity, and productivity of the Nation's forests and grasslands to meet the needs of present and future generations.

The Agency will make diligent efforts to involve the public in implementing its NEPA procedures as required by CEQ's revised NEPA regulations at 40 CFR 1506.6. The Agency's final rule does not address or reduce existing Agency public involvement practices concerning CEs. Scoping and public engagement requirements will be assessed during the development of revised Agency NEPA procedures required by CEQ's revised NEPA regulations. Further, the Agency will continue to comply with the requirements of all applicable laws and regulations, such as the National Environmental Policy Act, National Forest Management Act, Endangered Species Act, and National Historic Preservation Act.

Comment: Some commenters suggest that there is insufficient justification to support the need for the proposed rule as described in the Federal Register notice or indicate, in opposing the proposed rule, that the regulations it would amend are relied upon by the commenters and other stakeholders.

Response: The CEQ regulations state that agencies shall reduce excessive paperwork and delay by using CEs and, for efficiency, shall identify CEs in their agency NEPA procedures (40 CFR 1500.4(a), 1500.5(a), and 1501.4(a)). The final rule reduces paperwork and delay by adding the Determination of NEPA Adequacy provision and establishing new and expanded categorical exclusions based on Agency experience and expertise. The CEQ NEPA regulations at 40 CFR parts 1500-1508 encourage agencies to continue to review their NEPA policies and procedures and to revise them as necessary. To the extent commenters raise concerns about reliance rights, the Forest Service further notes that rules implementing NEPA, such as this one and its predecessor, are purely procedural. They simply direct the actions of public officials. They therefore do not engender specific, reasonable, and detrimental reliance by individuals and groups outside the government.

Comment: Commenters suggested a need to prepare an EIS to assess the potential impacts from implementation of the proposed rule; in particular, comments request that the Forest Service evaluate proposed rule impacts to social, cultural, and economic conditions of affected communities and user groups; climate change and carbon stores; scenic integrity; National Scenic and Historic Trails; and caves and karst resources.

Response: The CEQ regulations do not require agencies to prepare a NEPA analysis before establishing or updating agency NEPA procedures. See, e.g., Heartwood, Inc. v. U.S. Forest Service, 230 F.3d 947, 954-55 (7th Cir. 2000). Agency NEPA regulations establish the procedures for fulfilling their responsibilities under NEPA but are not the Agency's final determination of what level of NEPA analysis is required for a particular proposed action. This rule does not authorize any activity or commit resources to a project that may affect the environment. This rule does not have any reasonably foreseeable impact on the environment, nor does the rule authorize or prohibit any action that would have any effect on the environment.

Comment: After CEQ published a notice of proposed rulemaking to revise its regulations for implementing NEPA on January 10, 2020 (85 FR 1684), the Forest Service received a request from several organizations that it abandon or suspend its rulemaking effort pending the outcome of CEQ's rulemaking effort.

Response: The Forest Service has coordinated with CEQ throughout the Forest Service's rulemaking process. Partially as a result of CEQ's revised regulations, the Forest Service's final rule is of limited scope and amends its regulations to add only new and expanded CEs and the DNA provision. On November 10, 2020, CEQ issued a letter stating that CEQ has reviewed this rule and has found it to be in conformity with NEPA and CEQ regulations (per 40 CFR 1507.3). Where existing Agency NEPA procedures are inconsistent with CEQ's revised regulations, CEQ's revised regulations shall apply ( see 40 CFR 1507.3(a)). As explained above, the Forest Service will review its NEPA regulations and initiate another rulemaking process as required by CEQ's revised regulations. 1

Comment: Commenters disagreed with the discussion of costs and benefits of the proposed rule in its accompanying Federal Register notice and stated that the determination did not consider all potential costs. Commenters contend that faster decision-making, especially if it eliminates some opportunities for public input, will often result in worse decisions. This, in turn, will increase the overall amount of time spent on projects due to delays from litigation or re-analysis. Comments suggest that spending more time on NEPA analysis will ensure the analysis is of higher quality. Additionally, some commenters argue that there are no efficiencies to be gained in completing a project under a CE instead of an EA, and that CEs take less time only because projects analyzed under a CE are generally of smaller size than those analyzed in an EA.

Response: The amendments in the final rule are more limited in scope than the Forest Service's proposed rule. The Agency has updated the discussion of cost and benefits of the final rule consistent with these changes (see the Executive Order 12866 section). The final rule does not address existing Agency public involvement practices concerning CEs.

The notion that CEs are no more efficient than EAs runs counter to the Agency's experience that less-detailed NEPA documentation takes less time to complete than more-detailed NEPA documentation. Indeed, this claim by commenters similarly runs contrary to the whole design of the NEPA regulations since their inception and continuing up through the 2020 CEQ NEPA regulations. Specifically, there are three levels of NEPA review, each of which requires successively more documentation and analysis than the prior level: Determination of whether a CE applies, completion of an EA, and completion of an EIS. See 40 CFR 1501.3(a) (describing these three levels); see also 40 CFR 1501.4(a) (2019) (noting how these three levels interrelate).

Nevertheless, the Agency compared the days from project initiation to decision for the 68 sample EAs used to develop the restoration CE to the 140 projects completed under the CE in Section 603 of the Healthy Forests Restoration Act since its establishment. The Section 603 CE, like the restoration CE, has a maximum project size in the thousands of acres and covers an array of activities, including several similar activities. Using the 68-EA sample, the median time to complete an EA per 1000 acres was 186 days. Conversely, the median time to complete a decision memo using the Section 603 CE per 1000 acres was 111 days. This analysis supports the Agency's premise that CEs represent a more timely and efficient form of NEPA compliance.

Comment: Comments suggest that the Forest Service should focus on addressing causes of agency inefficiency in environmental decision-making ( e.g., funding, staffing, training, internal policies and consistency, and agency culture).

Response: The Agency recognizes that factors outside of its NEPA regulations also contribute to inefficiency in environmental analysis and decision-making. In late 2017, the Agency announced its Environmental Analysis and Decision-Making change effort, which intends to reduce the time and cost of environmental analysis and decision-making processes to produce efficient, effective, and high-quality land management decisions. The scope of this change effort includes and extends beyond revising the Agency's NEPA regulations. The Environmental Analysis and Decision-Making change effort includes, for example: A new, national NEPA training program; formation of National Historic Preservation Act and Endangered Species Act task forces to identify and implement efficiencies; compliance performance metrics for leadership; production of an environmental analysis and decision-making information library and network sharing platform; and development of a contracting center of excellence.

Comment: Some commenters stated that use of Determinations of NEPA Adequacy (DNAs) would curtail effective analysis and public input by relying on non-site-specific, potentially outdated information, and that the Bureau of Land Management (BLM) model is not appropriate for the Agency. Commenters requested the concept be eliminated or that additional sideboards be applied to ensure it is applied correctly. Commenters also requested that the Forest Service provide more details for when a previous NEPA analysis can satisfy NEPA requirements for a subsequent action, such as geographical considerations ( e.g., location, scale); temporal considerations ( e.g., previous decision date); and current and desired conditions considerations. Comments also stated that DNAs should require public input and documentation. Alternatively, comments expressed support for the use of DNAs to expedite agency action by reducing redundant analyses of substantially similar proposed actions with substantially similar impacts. Some comments also urged that the proposed rule should more closely follow BLM guidance and language for DNAs.

Response: Section 220.4(i) of the proposed rule added the DNA provision, which outlines a process for determining whether a previously completed Forest Service NEPA analysis can satisfy NEPA's requirements for a subsequently proposed action. The proposed DNA review process required consideration of the following factors: The similarity between the prior decision and the proposed actions, the adequacy of the alternatives to the proposed action, any significant new circumstances or information since the prior decision, and the adequacy of the impact analysis for the proposed action.

The final rule retains and clarifies the DNA provision at § 220.4(j). A DNA documents the responsible official's review and determination whether a NEPA analysis prepared for a prior activity can satisfy NEPA's requirements for a new proposed action that is substantially the same. For example, approval of a special use permit for a commercial fishing derby at a lake on NFS lands could rely on NEPA documentation prepared for the same or similar event the year before. If the elements outlined at § 220.4(j)(1) are not met for the proposed action currently under consideration, the DNA provision should not be used.

The Forest Service has modelled its DNA regulation after provisions of the BLM's NEPA procedures and is consistent with CEQ's NEPA regulations (40 CFR 1500.4(p), 1501.12, 1502.9(d)(4), and 1506.3). CEQ's regulations require elimination of duplication, encourage incorporation by reference, allow reevaluation of prior NEPA analyses, and allow adoption of other agencies' NEPA documentation. BLM uses DNAs in association with previously prepared BLM NEPA documents. The Forest Service intends the use of DNAs to be in line with BLM's practice and will operate as essentially an “internal adoption” mechanism to be used when a new proposed action is substantially the same as an alternative analyzed in a prior Forest Service NEPA document.

The BLM's DNA mechanism also allows officials to use DNAs to document that no supplementation of an EIS or EA is required. However, the Forest Service will continue to use its Supplemental Information Reports (see FSH 1909.15, sec. 18) to assess new information and changed circumstances rather than use DNAs for such purposes consistent with 40 CFR 1502.9(d)(4).

As requested by some commenters, the final rule revises § 220.4(j) to more closely align with language from the Department of the Interior and the BLM. However, § 220.4(j)(1)(i) uses “substantially the same” instead of the BLM's use of “essentially similar” to describe the required relationship of the new proposed action to the previously analyzed proposed action. This change aligns with CEQ's related adoption provision, 40 CFR 1506.3, as described above.

The final rule also clarifies that, in order to use a DNA, the responsible official must determine that each of the elements set out at § 220.4(j)(1) are met. In addition, the final rule clarifies at § 220.4(j)(2) that proposed actions undergoing a DNA review shall be included on the Schedule of Proposed Actions; be subject to scoping; be subject to administrative review processes that were applicable to the prior decision; and include issuance of a new decision document.

Comment: Commenters expressed both general support and opposition to the use or expansion of CEs, as described in the proposed rule. Those in favor stated the new CEs will help the Agency conduct its NEPA review of projects in a more timely and efficient manner, supported the analysis done to substantiate the proposed CEs, and expressed confidence that responsible officials will use CEs appropriately. Those in opposition believed that the proposed CEs involved actions that would or could have significant effects, maintained that many or all proposed actions should undergo detailed analysis and public involvement, or that responsible officials would have too much discretion under the proposed CEs.

Response: The Agency has noted the comments providing general support or opposition. Comments specific to a certain CE are addressed below in additional responses. Administratively established CEs are a valid form of NEPA review. The CEQ regulations direct that for efficiency, agencies shall identify in their agency NEPA procedures categories of actions that normally do not have a significant effect on the human environment, and therefore do not require preparation of an environmental assessment or environmental impact statement (40 CFR 1501.4).

The Forest Service is establishing new CEs in the final rule pursuant to CEQ's implementing regulations at 40 CFR 1507.3. On November 10, 2020, CEQ issued a letter stating that CEQ has reviewed this rule and has found it to be in conformity with NEPA and CEQ regulations (per 40 CFR 1507.3). The Forest Service has prepared a supporting statement for the CEs that outlines the process the Forest Service followed to substantiate the establishment of the CEs. This document is titled, “Supporting Statement: Categorical Exclusions For Certain Special Uses, Infrastructure, and Restoration Projects,” and is available at https://www.fs.fed.us/emc/nepa/revisions/index.shtml. Specific responses to comments raised on the supporting statements are also addressed in later sections of this notice.

Categorical exclusions provide an efficient tool to complete the NEPA environmental review process for proposals that normally do not require EAs or EISs. The use of CEs can reduce paperwork and delay, so that EAs or EISs are targeted toward proposed actions where significant environmental impacts are uncertain or anticipated.

Consistent with CEQ regulations, the application of non-statutory Forest Service CEs is limited by “extraordinary circumstances,” in which a normally excluded action may have a significant effect (40 CFR 1501.4). Activities conducted under Agency CEs must be consistent with Agency procedures and must comply with all applicable Federal and State laws for protecting the environment. Management direction set forth in Forest Service land management plans also provides important parameters. Land management plans help ensure that potential environmental effects have been taken into account through the consistency requirement set forth in the National Forest Management Act and USDA's implementing regulations (16 U.S.C. 1604(i); 36 CFR 219.15) directing projects and activities be consistent with plan direction or be accounted for through project-specific amendments.

Listing a category of actions as able to be categorically excluded in the agency's NEPA regulations does not constitute a final conclusive determination regarding the appropriate level of NEPA review for a specific proposed action. Listing a category of actions creates an initial presumption that a CE, rather than an EA or an EIS, is normally appropriate to support approval of the listed actions. The extraordinary circumstances review, interdisciplinary process, or public input can result in the determination to prepare an EA or an EIS.

The Forest Service made several modifications to the final rule regarding CEs as a result of public comment. The proposed CEs for converting unauthorized roads and trails to National Forest System roads and trails, as presented in the proposed rule at § 220.5(e)(23) and (25), were not carried forward in the final rule due to public concerns about whether establishment of those CEs could encourage the creation of unauthorized roads and trails. Additionally, the final rule includes modifications to the restoration CE (§ 220.6(e)(25)); the roads CEs (§ 220.6(e)(23) and (24)); and the special uses CEs (§ 220.6(d)(11) and (12) and § 220.6(e)(3)). Specific changes made to the CEs are discussed further in the responses to comments below and the Supporting Statement.

Comment: Some commenters asked the Forest Service to review all existing CEs and consider increasing their limits. Other commenters suggested the Forest Service is required to review all CEs for their potential for significant effects before proposing additional CEs.

Response: The Agency has exercised its discretion in defining the scope of the current rulemaking process and in electing to pursue additional CEs for special uses, infrastructure, and restoration consistent with its program needs. The Agency believes these program areas present the best opportunities for increasing efficiency in the Agency's NEPA procedures in furtherance of producing efficient, effective, and high-quality land management decisions that will timely accomplish work on the ground consistent with its statutory mission and authorities and be more responsive to the public. Focused consideration on establishing CEs for individual program activities is consistent with past agency practice to develop CEs (see, e.g., Oil and Gas Activities (72 FR 7391), Special Use Authorizations (69 FR 40591), Soil and Water Restoration Activities (78 FR 56153); Limited Timber Harvest (68 FR 44598)).

Comment: Beyond the additional and modified CEs identified in the proposed rule, commenters also asked that the Forest Service incorporate new CEs for a variety of activities, including grazing- and range-related activities, vegetation management plans and vegetation management activities, watershed and other research projects, land exchanges, and mineral exploration.

Response: The Agency appreciates the public interest expressed in identifying additional opportunities for CEs. While the Agency has elected to maintain the rulemaking's focus on special uses, infrastructure, and restoration, this does not preclude the agency from examining additional opportunities for improvement through additional reviews. For example, the Forest Service recently announced in the Spring 2020 Unified Agenda of Regulatory and Deregulatory Actions its intent to update its CE for rangeland management improvement projects at § 220.6(e)(9) to incorporate modern range management practices ( see https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202004&RIN=0596-AD46 ).

Comment: Many comments expressed support for the CE in paragraph (d)(11) of the proposed rule, along with the Agency's goals to expedite processing of special use authorizations and reduce confusion in implementation of existing CEs in paragraphs (d)(10) and (e)(15). Some commenters requested limiting this CE to recreation special uses, requiring documentation in a decision memo, requiring public involvement, or adding additional examples of actions that would be covered by the CE.

Response: The final rule consolidates two similar existing CEs regarding special use authorizations into a new category at § 220.6(d)(11). The Forest Service agrees that consolidation of CEs at §§ 220.6(d)(10) (covering amendment to or replacement of an existing special use authorization) and (e)(15) (covering issuance of a new special use authorization for a new term to replace an existing or expired special use authorization) of the existing regulations will reduce confusion and increase efficiency in use of the CE for special use authorizations. The Forest Service has extensive experience using these CEs. A review of use of the CE at § 220.6(e)(15) from fiscal years 2012-2016 demonstrates that responsible officials have been relying on this CE appropriately, well within its constraints. From fiscal years 2012 through 2016, category (e)(15) was used 1,584 times (roughly 317 times per year). A review of these projects indicated that the CE is being used as intended and within its limiting factors. Because the new, consolidated CE is limited to actions to replace an existing authorization where there are no changes to the authorized facilities or increases in the scope or magnitude of the authorized activities, the Agency has determined that documentation with a decision memo or project file is not required. An applicant or holder also must continue to comply with the terms and conditions of the existing special use authorization.

Some of the examples of actions covered by the CE have been clarified, but the list of examples for the category is not intended to be exhaustive, and additional examples have not been incorporated into the final rule. Outdated terms such as “electric transmission line” and “powerline,” which were used during development of the proposed rule, have been replaced with “powerline facility” to match recent revisions to the Agency's special use regulations (36 CFR part 251). Additional examples requested by commenters covering changes to the terms and conditions of an authorization that require Forest Service approval have not been added to the final rule because these examples are outside the scope of the existing and consolidated CEs. The CE in paragraph (d)(11) has also not been limited to recreation special uses as requested by some commenters. The existing CEs encompass both recreation and non-recreation special uses; limiting the consolidated CE to recreation special uses would undercut the Agency's efficiency goals.

Comment: Some commenters expressed support for the new CE at § 220.5(d)(12) of the proposed rule because it will increase NEPA efficiency related to recreation special use permits. Additionally, some commenters agreed that issuance of an outfitting and guiding permit where the use supported by the outfitter and guide is already allowed in the area should not have significant environmental effects and would be appropriate to cover under a CE. Many commenters requested that the final rule limit this CE to recreation special uses, provide further clarification on where activities covered by the CE could occur, and provide additional examples of activities covered by the CE. Some commenters also requested that the CE require a decision memo or interpreted the language related to land management plan consistency in the proposed CE to mean that a NEPA analysis would not occur. Some commenters more generally opposed issuance of special use permits being analyzed under a CE and that issuance of special use permits should always be subject to a higher level of environmental review and public input.

Response: The final rule retains this CE at § 220.6(d)(12) and makes some edits to the language used in the proposed rule. The final rule clarifies that the CE in paragraph (d)(12) is limited to recreation special uses. The final rule also revises the CE to clarify that it is limited to recreation special uses that occur on existing roads or trails, in existing facilities, at existing recreation sites, or in areas where the activities supported by recreation special uses are allowed. The intent of the CE is to facilitate issuance of recreation special use permits where the activities supported by those permits are already occurring or allowed on a noncommercial basis. In general, there is no difference in environmental impacts between recreational activities conducted by the general public and recreational activities led by an outfitter and guide. As a result, the final rule retains this CE under those administrative categories that do not require documentation in a decision memo. Agency proposed actions that rely on this CE, like all of the agency's proposed actions subject to NEPA, must be consistent with the land management plan and all other laws, regulations, and policies. This includes compliance with the Endangered Species Act, Clean Water Act, and National Historic Preservation Act.

Comment: Some commenters opposed the proposed rule's expansion of the existing special use authorization CE at § 220.6(e)(3) from 5 to 20 acres, on the grounds that this change would quadruple the existing acreage subject to the CE, which would result in significant effects. Some commenters stated that the rationale for expanding the CE was insufficient. Tribes and Tribal organizations expressed concern that this CE could adversely affect sacred and cultural sites. Several commenters supported expansion of the CE.

Response: At § 220.6(e)(3), the final rule retains the expansion of the CE from 5 to 20 acres and retains the removal of the words “contiguous” and “minor.” These words were removed in the proposed rule to improve clarity and reduce confusion for Agency personnel in determining when the CE can be used. The final rule also modifies the list of examples for this CE to add clarity and reduce redundancy with other CEs. For example, subparagraph (vii) of the former version of the CE (“[a]pproving the continued use of land where such use has not changed and no change in the physical environment or facilities are proposed”) largely was redundant with the two existing CEs now consolidated at § 220.6(d)(11). The types of activities covered under the expanded CE are very similar to those covered under the existing CE. The final supporting statement provides additional information justifying the Agency's conclusion that expanding the CE from 5 to 20 acres will not result in significant impacts. The Agency reviewed 62 EAs, findings of no significant impact, and decision notices for proposed actions like those that would be covered by this CE. The average acreage authorized by these decisions was 41.9 acres. The modest expansion to 20 acres is well below this figure. Based on the agency's history with using the existing CE and the information presented in the supporting statement, the Forest Service has determined that the expansion of the CE is justified.

The Forest Service recognizes the importance of consultation and coordination with Tribes consistent with E.O. 13175, which imposes requirements independent of compliance with NEPA. The Forest Service also will continue to ensure that Tribal consultation occurs on individual projects as required by Agency policy. Additionally, American Indian and Alaska Native religious or cultural sites and archaeological sites or historic properties or areas will be considered as part of the extraordinary circumstances review applicable to all CEs. See 36 CFR 220.6(b)(vi), (vii).

Comment: Some commenters opposed expansion of the existing CE at § 220.6(e)(20) because they believed that such an expansion would allow for closure of roads and trails without any public involvement. Other commenters requested notice, coordination, and consultation with county and local governments and raised concerns about compliance with the National Historic Preservation Act. Some commenters requested additional information regarding use of this CE in relation to the Forest Service's travel management rule at 36 CFR part 212. Other commenters expressed support for the expansion of the CE and agreed with the Agency's finding that the actions and environmental impacts for restoration of lands occupied by a NFS road or NFS trail are generally the same as when restoration occurs for lands occupied by an unauthorized road or unauthorized trail.

Response: The final rule retains the proposed rule's expansion of this CE at § 220.6(e)(20) to include decommissioning of NFS roads and NFS trails, as well as unauthorized roads and trails. The inclusion of NFS roads and NFS trails in the CE will help accomplish restoration objectives on national forests and grasslands, address road and trail maintenance backlogs, and help the Agency maintain compliance with long-standing policies that require decommissioning of unneeded roads and trails. Regardless of whether the activity undertaken is the restoration of lands occupied by an NFS road or NFS trail or unauthorized road or trail, the actions and environmental impacts are generally the same and not significant.

Proposed actions covered by this CE would be developed in compliance with the travel analysis process and the travel management rule. The Agency uses travel analysis to identify the minimum road system, including unneeded NFS roads and NFS trails. Travel analysis is a dynamic, interdisciplinary, science-based process that examines ecological, social, cultural, and economic concerns. Information from the travel analysis process is used to inform future travel management decisions at the project level. In particular, travel management decisions identify whether a route needs to be added or removed, if an NFS trail or NFS road needs to be constructed, or if a route needs to be decommissioned.

Prior to determining if an NFS road or NFS trail could be decommissioned using this CE, the NFS road or NFS trail would need to be identified as unneeded and eligible for decommissioning through the travel analysis and travel management processes. Appropriate compliance with the requirements of the National Historic Preservation Act is independent of compliance with NEPA, and not dependent on whether a CE, EA, or EIS is prepared for the latter.

This CE will not be used to make access decisions about which roads and trails are to be designated open for public use, or which will be closed from public use. This CE will allow the Forest Service to restore, rehabilitate, or stabilize lands more efficiently where public access is not currently permitted, e.g., for roads and trails that are already closed. This approach is consistent with the initial development and establishment of this CE ( see 78 FR 56157).

Comment: Some commenters supported the proposed rule's new CE regarding administrative sites because it would add efficiency to their overall management and help the Agency address deferred maintenance of administrative facilities. Some commenters stated that the CE was written too broadly. Other commenters stated that the CE overlaps with an existing CE that does not require a decision memo and that this CE would result in unnecessary work and documentation.

Response: At § 220.6(e)(21), the final rule adopts the proposed rule's CE regarding administrative sites. The existing CE for repair and maintenance of administrative sites at 36 CFR 220.6(d)(3) of the final rule is unaffected by the new CE at 36 CFR 220.6(e)(21). The existing CE was established on September 18, 1992 (57 FR 43180), and the Federal Register notice for the final rule states that the CE is intended for routine repair and maintenance. Current Forest Service directives define “maintenance” as “an activity that entails preserving, insofar as practical, the original condition of Forest Service-owned buildings and related facilities” (Forest Service Handbook (FSH) 7309.11, Zero Code). Repair is defined as “the refurbishment or replacement of existing facility components with the same kind of materials for the purpose of maintaining the original condition and function while returning the facility to a sound state” (FSH 7309.11, Zero Code).

The new CE in paragraph (e)(21) allows activities beyond routine repair and maintenance at existing administrative sites. Many of the Forest Service's administrative facilities need reconstruction or major repair, could be decommissioned, or may be subject to disposal. The new CE will increase NEPA efficiency associated with improving existing facilities to provide for both employee and public safety and decommissioning or disposing of administrative facilities to reduce the Agency's footprint. The CE in the final rule is limited to activities within an existing administrative site as defined in section 502(1) of Public Law 109-54 (119 Stat. 559; 16 U.S.C. 580d note). Proposed actions covered by this CE will also be subject to established Agency processes for facilities management, including facility master planning.

Comment: Several commenters expressed opposition to the proposed rule's recreation sites CE at § 220.5(e)(22) on the grounds that it is too broad, that the actions covered could result in significant effects, and that changes to recreation sites should require public input and review. Some commenters argued that certain activities covered under this CE should require analysis under an EA or EIS to ensure consideration of social needs through analysis of multiple alternatives.

Response: The final rule retains the new recreation site CE at § 220.6(e)(22). The Forest Service provides access to roughly 29,700 recreation sites. This CE will increase efficiency in NEPA compliance for proposed actions to improve existing recreation sites that are in decline or pose safety or resource concerns.

The CE is limited to existing recreation sites and covers construction, reconstruction, decommissioning, or disposal of buildings, infrastructure, or existing improvements, including infrastructure or improvements that are adjacent or connected to an existing recreation site and provide access or utilities for that site. The CE does not cover development of new recreation sites. The CE would be used alongside other established Agency processes for recreation and facilities planning.

CEQ regulations define a CE as a category of actions that the agency has determined normally do not have a significant effect on the human environment. CEQ regulations further explain that social effects are not intended by themselves to require preparation of an EIS (40 CFR 1502.16(b)). However, social needs are considered during the recreation site planning process and development of a recreation site design narrative, which precede development of a specific proposed action for which this CE potentially would apply. Additionally, as noted above, this CE is limited to activities at existing recreation sites and does not encompass development of new recreation sites.

During development of this CE, the Forest Service reviewed previously analyzed projects that focused on recreation management and evaluated similar CEs in use by other agencies that manage public recreation sites and facilities. The Agency has determined that the activities covered by this CE will not result in significant effects. Further information and rationale are provided in the supporting statement.

Comment: Comments on the proposed rule's road construction CE at § 220.5(e)(24) were mixed. Those commenters in favor of the CE highlighted the beneficial effects of increasing access and public safety and addressing the Agency's backlog of road reconstruction and rehabilitation. Some of these commenters requested that the CE not have any mileage limitation. Other commenters supported certain road-related activities, such as realignment and culvert and bridge rehabilitation, but only if those activities benefitted fish and aquatic species.

Some commenters stated that the activities covered by the road construction CE would cause erosion and sedimentation and impacts on water quality and aquatic habitats, Commenters also stated that including construction of new roads in a CE would hamper the Agency's ability to maintain its existing roads. Some of these commenters requested reducing the mileage limits for all road activities.

More generally, commenters requested that the Agency clarify public involvement associated with projects that would be supported by this CE, coordination with state agencies, the CE's relation to travel management, the meaning of terms of like “open” and “close” in this context and the difference between the proposed CE and the existing CE for repair and maintenance of roads.

Response: The proposed rule included a CE for construction or realignment of up to 5 miles of NFS roads, reconstruction of up to 10 miles of NFS roads and associated parking areas, opening or closing an NFS road, and culvert or bridge rehabilitation or replacement along NFS roads. The inclusion of two mileage limits with a single list of examples created confusion. As a result, the final rule divides the proposed rule's roads CE into two separate CEs at §§ 220.6(e)(23) and (24). Each of these CEs applies only to NFS roads. The CE in paragraph (e)(23) covers up to 8 miles of certain road management activities and cannot be used for construction and realignment. The CE in paragraph (e)(24) covers road construction and realignment on up to 2 miles of NFS roads and associated parking areas.

The reduced road mileages in these two CEs are the result of consideration of public comment and additional review conducted by the Agency. As the Agency developed these two CEs, it narrowed the focus of its analysis of previously completed projects from broad, general project purposes to more specific project activities. Specifically, the Agency conducted an additional search of its NEPA database for previously completed projects to define appropriate mileage limitations for each of the CEs. This additional analysis is described in greater detail in the supporting statement.

Also based on additional review and analysis and in response to public comments, the Agency removed the example of opening or closing a road. Additionally, the Agency removed references to culvert rehabilitation and replacement because those activities are covered under the existing CE at 36 CFR 220.6(e)(18) of the final rule. The data used to establish these CEs is included in the supporting statement.

The Forest Service has an existing CE at 36 CFR 220.6(d)(4) of the final rule for repair and maintenance of roads, trails, and landline boundaries. That CE is intended to be used for routine maintenance of NFS roads and includes no mileage limit and no requirement for documentation in a decision memo. The new CEs established in the final rule cover NFS road management activities that go beyond routine repair and maintenance but have been demonstrated by the Agency's experience not to have significant effects.

In addition to adhering to the mileage limitations, determining that extraordinary circumstances do not exist, and requiring documentation in a decision memo, the responsible official incorporates design features as a standard operating procedure to avoid or minimize resource impacts. Examples of design features that are routinely incorporated are listed in the supporting statement. Design features to prevent impacts from erosion and sedimentation may include requiring road locations to be reviewed by an Agency watershed specialist, requiring erosion control measures in accordance with state department of transportation requirements, or minimizing erosion and removing sediment by capturing and filtering runoff before it leaves the project limits. Additional examples of design features have been added to the supporting statement.

All proposed actions covered under the CEs in paragraphs (e)(23) and (24) must be consistent with applicable travel management decisions. The travel management rule at 36 CFR part 212, subpart A, was promulgated in 2005 and established requirements for administration of the forest transportation system. The Forest Service uses travel analysis to identify the minimum road system. Travel analysis is a dynamic, interdisciplinary, science-based process that examines ecological, cultural, social, and economic concerns. Information from the travel analysis process is used to inform future travel management decisions at the project level. Travel analysis is used to identify whether a road needs to be added to the forest transportation system or decommissioned.

The CEs do not apply to decisions to add roads to the forest transportation system. Rather, once the Agency has determined that a road needs to be constructed during the travel management decision process, a CE could be used to comply with NEPA for the actual road construction. As explained above, the final rule does not address or reduce existing Agency public involvement practices concerning CEs.

Comment: The Agency received many comments covering a wide range of topics related to the restoration CE included in the proposed rule at § 220.5(e)(26). Some commenters supported the establishment of a restoration CE to help the Agency expedite activities to restore National Forest System lands and increase forest and grassland resilience. Other comments opposed the proposed restoration and resilience CE on general grounds or opposed specific elements of the CE.

Response: The Agency notes the general support or opposition regarding the restoration and resilience CE. The final rule retains a modified version of the CE covering restoration and resilience activities at § 220.5(d)(25). Specific comments and the resulting modifications from the proposed rule are addressed below.

Comment: Several comments on the proposed restoration and resilience CE concerned its scope or included activities. Some commenters requested that clearer examples be provided and that the Agency focus on practices instead of outcomes. Some supportive commenters requested removal of the limitation that commercial and non-commercial harvest activities be allowed only in conjunction with another restoration activity.

Some commenters expressed the general sentiment that the CE is too broad and needs narrowing definitions and limitations. Other commenters stated that the CE would allow activities not focused on restoration. Some commenters requested that either timber harvest generally, or salvage harvest in particular, should be prohibited because such activities are not always associated with restoration or scientific literature did not support such treatments use for restoration or resilience purposes.

Response: Following the public comment period, the Forest Service convened a group of Agency scientists to review the body of literature submitted in public comments specific to the proposed restoration CE. This review, combined with input from other Agency subject matter experts in the watershed, wildlife, and forest management program areas, resulted in changes to the restoration CE in the final rule.

In the final rule, the Agency has narrowed the scope of the category of permissible activities. The final rule requires all activities conducted under the CE have a primary purpose of meeting restoration objectives or increasing forest and grassland resilience. “Primary purpose” is a well understood operational term both within the Agency and by the public. This adjustment is responsive to concerns that the category focus on outcomes, as well as concerns regarding the use of certain tools that may be used to achieve restoration and resilience goals.

The primary purpose requirement is further amplified in paragraph (ii)(B), which limits qualifying thinning and harvesting activities to those designed to achieve ecological restoration or resilience objectives. Permissible projects may generate secondary or ancillary multiple use benefits other than restoration and resilience. Such is the nature of multiple use management. However, restoration and resilience must be the project's primary objective. Because the final rule adopts a primary purpose requirement, the final rule removes the provision that would have required commercial or non-commercial timber harvest activities to be carried out in combination with at least one additional restoration activity.

The Agency will rely on its standard definition of restoration in applying the category. (Restoration is “the process of assisting the recovery of an ecosystem that has been degraded, damaged, or destroyed. Ecological restoration focuses on reestablishing the composition, structure, pattern, and ecological processes necessary to facilitate terrestrial and aquatic ecosystems sustainability, resilience, and health under current and future conditions. Functional restoration focuses on the underlying processes that may be degraded, regardless of the structural condition of the ecosystem.” (FSH 1909.12 and 36 CFR 219.19)).

The final rule clarifies the list of activities to meet restoration and resilience objectives at paragraph (i). These include stream restoration, aquatic organism passage rehabilitation, or erosion control; invasive species control and reestablishment of native species; prescribed burning; reforestation; road and/or trail decommissioning (system and non-system); pruning; vegetation thinning; and timber harvesting. The restoration CE allows timber harvest because timber harvest is a general term that encompasses removal of trees for a variety of purposes. The restoration CE requires harvest activities to be designed to achieve ecological restoration objectives. The CE will not be available for projects designed primarily to achieve economic returns. The commercial sale of timber harvested via use of the CE is permissible, but as discussed above, only where commercial value is a secondary or ancillary benefit to the primary restoration activity.

Similarly, the Agency has added a limitation to the vegetation thinning and timber harvesting activities provision disallowing salvage harvesting under the restoration and resilience CE. The Agency defines salvage harvest as the removal of dead trees or damaged or dying trees due to injurious agents other than competition, to recover value that would otherwise be lost (FSM 2470). The effects of salvage harvest and its relation to restoration and resilience depend on a variety of factors. The exclusion of salvage harvest from the restoration CE does not mean that salvage harvest cannot be used to achieve restoration or resilience objectives in other contexts or under other categorical exclusions (see, for example, the existing salvage harvest CE at § 220.6(e)(13)). Nor does it imply that the effects of salvage harvest are significant under NEPA.

Comment: Some commenters supported the acreage limits in the proposed restoration CE. Other commenters argued that the acreage limits in the proposed restoration CE would allow for potentially significant effects, questioned their basis, or argued that the supporting statement did not demonstrate that allowing 4,200 acres of commercial or noncommercial harvest would not result in significant effects. Still other commenters requested removing express acreage limits entirely or expanding the acreage limit for all listed activities to 7,300 acres.

Response: The proposed restoration CE would have allowed activities to improve ecosystem health, resilience, and other watershed conditions on up to 7,300 acres. If commercial/non-commercial timber harvest activities were proposed, those aspects of the project were not to exceed 4,200 of the 7,300 acres.

The Agency reviewed information submitted in public comments, conducted a science review, and reviewed the original project data on which the limitations in the proposed rule were based. Based on that review, the final rule's restoration CE at § 220.6(e)(25) allows activities to improve ecosystem health, resilience, and other watershed conditions on up to 2,800 acres. This revision is described in more detail below in the discussion of the supporting statement for the CE. In general, the 2,800-acre limitation better accounts for the effects of outliers in the sampled EA data set, better reflects the average size of projects from the sampled EAs, and also aligns with average acreages of specific activities in the sampled EA data set for which some commenters had concerns regarding the degree of impacts (such as commercial timber harvest).

Comment: Some commenters supported establishment of the proposed CE and the analysis set forth in the supporting statement associated with the proposed rule and stated that the Agency had provided a strong rationale for the CE. Other commenters questioned the findings that the CE will not result in significant adverse impacts, stating that the supporting statement was insufficient and not supported by science or other benchmarks. Some of these commenters questioned the adequacy of the monitoring information presented, disagreed with reliance on forest plan standards and best management practices to prevent significant effects, questioned how agency experts or cited research papers were used to develop the CE, and argued that the Agency's analysis of sampled EAs did not support the size of the restoration CE in the proposed rule.

Response: The Agency has carefully considered all comments submitted concerning the proposed restoration and resilience CE and made adjustments that refine the terms and parameters for the category. The agency has revised its supporting statement to include more details related to the acreage data and monitoring information. The Agency has revised its acreage calculations to address sampled EAs in order to account for projects with multiple activities occurring per acre. The revised calculations more accurately reflect a net project acreage versus gross total activity acres. The supporting statement now includes a table clearly identifying the source of the acreage data. The appendix of previously implemented projects has also been updated to demonstrate how acreages were calculated.

In response to public comment, the supporting statement for the final rule now includes additional discussion of the project development process and the interactions between proposal development, responsible official engagement, best management practices, design features, extraordinary circumstances, and forest plan compliance. The supporting statement also includes examples of design features that are typically incorporated into a proposed action for activities covered under the CE. The supporting statement also includes additional information related to monitoring and how professional experts were engaged in the development of the CE.

Comment: Some commenters requested that a public participation or collaboration element should be added to the restoration CE.

Response: The Agency has added a collaboration requirement to the restoration CE at § 220.6(e)(25)(ii)(A): “Projects shall be developed through a collaborative process that includes multiple interested persons representing diverse interests.” The Agency has had success working with various types of collaborative processes. This requirement is intended to be flexible, accommodate a variety of collaborative approaches, and does not require convening a formal collaborative group.

Comment: The Forest Service received a variety of comments regarding the road limitations in the proposed restoration and resilience CE. Comments included suggestions to increase the road mileages for construction of permanent and temporary roads, removing road construction from the CE, and questioning why the road mileage limitations for the restoration CE differed from those in the CE proposed rule's road construction CE at 36 CFR 220.5(e)(24).

Response: In the final rule, § 220.6(e)(25) includes adjusted road mileage limitations and addressed reconstruction within the framework of construction limits. The restoration CE allows construction and reconstruction of permanent roads up to 0.5 miles; and construction of temporary roads up to 2.5 miles. The restoration and resilience CE requires all temporary roads to be decommissioned no later than 3 years after the date the project is completed. The final rule also clarifies that the category allows repair and maintenance of NFS roads and trails to prevent or address resource impacts.

Some commenters were confused about the road limitations of the CE and how they compare to the limitations of other CEs. A frequent comparison was the limitation of construction of permanent roads of 0.5 miles when the proposed rule also included a proposed CE that would allow five miles of permanent road construction.

The proposed rule's use of different road mileage limitations reflected the purpose of the individual CE and the agency's experience in managing those activities categories. These two CEs were developed independently based on different supporting data and have different focuses. The restoration and resilience CE was developed with a focus on activities that improve overall ecosystem health and restore national forests and grasslands. The roads management CE was developed with a focus on road management activities to address access issues and resource impacts; it has a narrower scope than the restoration CE. In the final rule the road management CE was also modified, and the mileage limitations have been lowered to 2 miles for permanent road construction.

Forest Service CEs are independently established, as has been the case with historical agency practice concerning development and use of CEs. The activities covered by, or limitations in, a particular CE do not constrain or limit the operation of any other CE. Likewise, more than one CE may apply to an activity. Integrated, multiple-use management activities, which are designed to accomplish management goals that often cross administrative program boundaries, can fit within multiple CEs.

The final rule amends agency regulations for implementing NEPA. Forest Service NEPA procedures assist in the fulfillment of agency responsibilities under NEPA but are not the agency's final determination of what level of NEPA analysis is required for a particular proposed action. This rule would not authorize any activity or commit resources to a project that may affect the environment. This rule does not have any reasonably foreseeable impact on the environment, nor does the rule authorize or prohibit any action that would have any effect on the environment. The CEQ set forth the requirements for establishing agency NEPA procedures in its regulations at 40 CFR 1507.3. The CEQ regulations do not require agencies to prepare a NEPA analysis before establishing or updating agency NEPA procedures. The determination that establishing agency NEPA procedures does not require NEPA analysis and documentation has been upheld in Heartwood, Inc. v. U.S. Forest Service, 230 F.3d 947, 954-55 (7th Cir. 2000).

The final rule has been reviewed under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. It has been determined that the final rule does not constitute a significant energy action as defined in the Executive Order.

The Forest Service considered this final rule in compliance with E.O. 13175, Consultation and Coordination with Indian Tribal Governments. On June 13, 2019, the agency initiated a 120-day consultation period. This period was extended an additional 26 days, based on requests from some Tribes. The Forest Service also considered input from Tribes received after this period. Twenty-eight federally and non-federally recognized Tribes submitted written comments and/or participated in regional tribal meetings.

While some Tribes expressed support for the proposed rule, many Tribes expressed concern over how the rule would impact the Agency's responsibility to consult with Tribes on federal actions. Specifically, many were concerned that the proposed rule's addition of CEs and elimination of the scoping requirement for CEs and EAs would reduce opportunities for tribal engagement.

In response, the Forest Service maintains and reiterates its commitment to ensuring that Tribal consultation occurs for individual projects as appropriate pursuant to Forest Service Manual 1560 and Forest Service Handbook 1509.13. This regulatory revision makes no change to Tribal consultation. Further as discussed above, the final rule is of limited scope and amends the Forest Service NEPA regulations to include only new and expanded CEs and the DNA provision. Projects and activities supported by environmental assessments remain subject to project-level pre-decisional administrative review process (“objections” process) at 36 CFR part 218, which requires notice and a designated opportunity for comments.

The Agency acknowledges that it shares a government-to-government relationship with Tribes that differs from its relationship with the general public. The final rule does not change the Forest Service's Tribal consultation obligations.

This rule has been reviewed under USDA procedures and Executive Order (E.O.) 12866 issued September 30, 1993, on regulatory planning and review. The Office of Management and Budget (OMB) has determined that this is a significant rule as defined by E.O. 12866 and therefore subject to interagency review.

A more timely and efficient process will reduce administrative costs. There are many benefits and costs associated with the rule; however, they are not quantifiable with available data. Benefits (or cost reductions) derived from timely and focused environmental analysis, flexibility in preparation of environmental documents, and improved decision-making indicate a positive net benefit of the rule. The direct benefits of the rule are, therefore, reduced costs and time spent on environmental analysis.

For example, by implementing the Determination of NEPA Adequacy (DNA) provision, the Agency anticipates reductions in time and cost as a result of reducing redundant analyses. These efficiencies may reduce total Agency costs and decision-making time. These concepts, however, will take some time to become well established and widely used; potential benefits will occur over time.

The rule also establishes 5 new CEs that require a decision memo. Focusing on the new CEs, the Agency assumes for the purpose of this analysis, based on average use of its existing CEs, that each new CE may be used an average of 1 to 30 times per year. Under these assumptions, the rule may potentially result in 5 to 150 decision memos per year being completed in lieu of a decision notice.

From Fiscal Years 2014 to 2019, the Agency's average annual environmental analysis workload included approximately 1,588 CE determinations and 266 EAs. This six-year span includes the most recent data available. The average time to decision for CEs was 204 days and for EAs was 707 days. As a result, the Agency may complete NEPA analysis on proposed actions using the new CEs an average of 1 to 17 months earlier, per proposed action. In practice, these figures will vary dependent upon the proposed action and the particular CE being applied.

The Forest Service has combined and modified some existing CEs with this rulemaking to reduce confusion and better capture Agency proposed actions that do not normally have significant environmental effects. This, in turn, allows for timelier decision-making. Specifically, combining CEs at § 220.6(d)(10) (not requiring a decision memo) and § 220.6(e)(15) (requiring a decision memo) of the existing regulations, which both covered administrative actions on special use permits, eliminates confusion among Agency staff over which CE applies and reduces administrative workload by not requiring a decision memo. Expanding the acreage of special uses on which the existing CE at § 220.6(e)(3) can be applied from 5 acres to 20 acres, as well as expanding the roads and trails on which the existing CE at § 220.6(e)(20) can be applied, are practical, common sense changes that increase Agency NEPA efficiency.

While CEs replace the more costly use of EAs, several factors contribute to the determination of the most appropriate form of NEPA analysis. In general, qualifying projects that in the past would have been analyzed under an EA may now rely upon the new CEs, but responsible officials retain discretion to use another form of NEPA analysis.

DNAs will further reduce the number of EAs undertaken each year, as Agency staff make use of this tool rather than defaulting to preparing a second EA. However, the Agency expects that use of the DNA provision will be modest at least in the first several years of its establishment.

The Agency anticipates use of DNAs and of the new CEs to slowly increase over time, taking into account time for adoption across the agency as has been observed during implementation of new CEs, statutory categorical exclusions and exceptions over the course of the past several years.

The final rule has been reviewed in accordance with E.O. 13771 on reducing regulation and controlling regulatory costs and is considered an E.O. deregulatory action. The impacts of the final rule are as discussed above.

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), the Office of Information and Regulatory Affairs designated this rule as not a `major rule', as defined by 5 U.S.C. 804(2).

The Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, and Executive Order 13272 require an agency to prepare a regulatory flexibility analysis of a rule if the rule is subject to notice and comment under the Administrative Procedure Act. The final rule directly affects only the Forest Service. Forest Service NEPA procedures assist in the fulfillment of agency responsibilities under NEPA; the final rule does not impose any requirements on small entities. While small entities represent some applicants for special use authorizations that would now be covered by the CEs at §§ 220.6(d)(11) and (12) and 220.6(e)(3), this is a negligible indirect effect only to certain small entities. Not all applicants are small entities and, moreover, the timing of a special use authorization depends on several factors beyond NEPA compliance, including compliance with other laws and incomplete information provided by the applicant. Therefore, the USDA Under Secretary for Natural Resources and Environment certifies that the rule will not have a significant economic impact on a substantial number of small entities.

The Agency has considered this final rule under the requirements of Executive Order 13132, Federalism. The Agency has concluded that the rule conforms with the federalism principles set out in this Executive Order; will not impose any compliance costs on the states; and will not have substantial direct effects on the States or the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, the Agency has determined that no further assessment of federalism implications is necessary.

This rule has been analyzed in accordance with the principles and criteria contained in Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights, and it has been determined that the rule does not pose the risk of a taking of protected private property.

This final rule has been reviewed under E.O. 12988, Civil Justice Reform. Under the final rule, (1) all State and local laws and regulations that conflict with this final rule or impede its full implementation will be preempted; (2) no retroactive effect is given to this final rule; and (3) the rule will not require the use of administrative proceedings before parties could file suit in court challenging its provisions.

Pursuant to Title II of the Unfunded Mandates Reform Act (UMRA) of 1995 (2 U.S.C. 1531-1538), the Agency has assessed the effects of the final rule on State, local, and Tribal governments, and the private sector. This final rule would not compel the expenditure of $100 million or more by any State, local, or Tribal government, or anyone in the private sector. Therefore, this final rule is not subject to the requirements of section 202 and 205 of the UMRA.

This final rule does not contain any additional recordkeeping or reporting requirements or other information collection requirements as defined in 5 CFR part 1320 that are not already required by law, or are not already approved for use, and therefore imposes no additional paperwork burden on the public. 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, part 220 of title 36 of the Code of Federal Regulations is amended as follows:

Throughout this document wherever “we,” “us,” or “our” is used, it refers to the EPA.

On June 5, 2019 and May 27, 2020, Idaho submitted SIP revisions to update the incorporation by reference of Federal regulations and clarify permitting requirements. We proposed to approve the revisions on September 11, 2020 (85 FR 56196). The reasons for our proposed approval are included in the proposal and will not be restated here. The public comment period for our proposal closed on October 13, 2020. We received no public comments and are finalizing our action as proposed.

The EPA is approving and incorporating by reference revisions to the Idaho SIP submitted on June 5, 2019, and May 27, 2020. Once effective, the Idaho SIP will include the following regulations:

• IDAPA 58.01.01.006.108, definition of “Significant” (State effective 4/11/2019);

• IDAPA 58.01.01.107, Incorporation by Reference, except section 107.03.f through 107.03.p (State effective 3/30/2020);

• IDAPA 58.01.01.221, Category I Exemption (State effective 4/11/2019);

• IDAPA 58.01.01.222, Category II Exemption (State effective 4/11/2019); and

• IDAPA 58.01.01.404, Procedure for Issuing Permits (State effective 4/11/2019).

The EPA is also approving Idaho's request to remove the following regulations from the Idaho SIP:

• IDAPA 58.01.01.845, Rules for Control of Sulfur Oxide Emissions from Sulfuric Acid Plants (State effective 5/1/1994);

• IDAPA 58.01.01.846, Emission Limits (State effective 4/5/2000);

• IDAPA 58.01.01.847, Monitoring and Testing (State effective 5/1/1994); and

• IDAPA 58.01.01.848, Compliance Schedule (State effective 4/5/2000).

In this document, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of Idaho regulatory provisions as described in section II of this preamble. Also, in this document, the EPA is removing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, we are finalizing the removal of Idaho regulatory provisions from incorporation by reference as described in section II of this preamble. The EPA has made, and will continue to make, these materials generally available through https://www.regulations.gov and at the EPA Region 10 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by the EPA for inclusion in the SIP, have been incorporated by reference by the EPA into that plan, are fully Federally-enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of the EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 1

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

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

• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;

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

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

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

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

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

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

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

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

The SIP is not approved to apply on any Indian reservation land or in any other area where the 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 it 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).

The Congressional Review Act, 5 U.S.C. 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. The EPA will submit a report containing this action 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. 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 January 19, 2021. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action 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).

For the reasons set forth in the preamble, 40 CFR part 52 is amended as follows:

Throughout this document, the terms “we,” “us,” and “our” refer to the EPA.

On July 20, 2020 (85 FR 43785), the EPA proposed to approve the following rules into the California SIP.

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

The CAA was first enacted in 1970. Section 110(a)(1) required each state to submit to EPA a SIP that provided for the implementation, maintenance and enforcement of the NAAQS. In the 1970s and early 1980s, thousands of state and local agency regulations were submitted to EPA for incorporation into SIPs, ostensibly to fulfill the new Federal requirements. In many cases, states submitted entire regulatory air pollution programs, including many elements not required by the CAA. Due to time and resource constraints, EPA's review of these submittals focused primarily on the rules addressing the new substantive requirements of the CAA, and we approved many other elements into the SIP with minimal review. We now recognize that some of these elements may be appropriate for state and local agencies to adopt and implement, but should not become federally enforceable SIP requirements; these include rules that prohibit air pollution nuisances. Such rules generally have no connection to the purposes for which SIPs are developed and approved, namely the implementation, maintenance, and enforcement of the NAAQS.

Ohio rule AP-2-07, “Air pollution nuisances prohibited,” was approved by EPA into the Ohio SIP on April 15, 1974. See 39 FR 13542. Subsequently, Ohio amended and renumbered the rule as OAC 3745-15-07 and submitted it as a revision to the SIP. EPA approved the amended rule on August 13, 1984. See 49 FR 32182. OAC 3745-15-07 prohibits the “emission or escape into the open air from any source or sources whatsoever, of smoke, ashes, dust, dirt, grime, acids, fumes, gases, vapors, odors, or any other substances or combinations of substances, in such manner or in such amounts as to endanger the health, safety or welfare of the public, or cause unreasonable injury or damage to property.”

On March 23, 2020, EPA proposed, under the authority of section 110(k)(6) of the CAA, to remove Ohio's nuisance rule from the Ohio SIP because it does not have a reasonable connection to the attainment and maintenance of the NAAQS and EPA erred in approving it as part of the Ohio SIP.

EPA received some comments that were political in nature or that where otherwise beyond the scope of this action ( i.e., related to climate change, water quality, or other non-NAAQS related issues), and EPA will not be responding to these comments. Adverse comments that were germane to the action and EPA's response to those comments are summarized below.

EPA's notice of proposed rulemaking (NPRM) was published in the Federal Register on March 23, 2020, with a 30-day comment period ending April 22, 2020. See 85 FR 16309. The timing of publication coincided with the Ohio Department of Health Director's Stay at Home Order, issued on March 22, 2020. EPA received four requests for an extension to the public comment period citing difficulties in communicating with and organizing interested parties, limited access to supporting information, and lack of childcare due to the COVID-19 pandemic and the Stay at Home Order. Three requests sought a 60-day extension and one request sought an extension to May 13, 2020. On April 22, 2020, EPA granted a 30-day extension to the comment period to May 22, 2020. See 85 FR 22378. No additional requests for extension were received.

EPA received comments in support of EPA's NPRM from the Ohio Chamber of Commerce, the Ohio Chemistry Technology Council, The Ohio Manufacturers' Association, API Ohio, and the Ohio Oil and Gas Association.

EPA received comments opposing the removal of the Ohio nuisance rule from the Sierra Club, the Ohio Environmental Council, Ohio Citizen Action, Altman Newman Co. LPA, the National Resources Defense Council, and more than 1800 individual commenters who submitted their comments as part of a letter-writing campaign. The following discussion provides a summary of the comments received and EPA's response to each comment.

Comment 1: Commenters had requested a 60-day extension of the April 22, 2020, deadline for comments, while EPA granted a 30-day extension until May 22, 2020. The commenters state: “During the revised comment period there has been no opportunity for neighbors and community groups to learn about this action, to meet face-to-face to discuss its implications, or to even seek public records because public offices have been closed and unable to produce documents. Furthermore, the press has been understandably focused on the immediately life-threatening pandemic. These circumstances have had a particularly devastating impact on the rights of poor and minority communities to learn of EPA's proposed action and to comment on citizen concerns.”

Response: SIPs are rulemaking actions under the Administrative Procedure Act, which does not specify a period for public comment. However, a 30-day period is consistent with most SIP actions proposed by EPA and with the intent of Congress as reflected in CAA section 307(h) (42 U.S.C. 7607(h)), which governs certain Federal administrative proceedings. It should be noted that EPA is not required to specifically notify any particular entity of its rulemaking actions; notification of all parties is accomplished through publications in the Federal Register . EPA published the NPRM to remove Ohio's nuisance rule in the Federal Register and initially provided 30 days for public comment. As stated previously, the publication of EPA's NPRM coincided with the Stay at Home Order in Ohio due to the COVID-19 pandemic. Based on the generalized concerns identified by commenters, including difficulty communicating with interested parties and issues with childcare, EPA granted a 30-day extension of the comment period. Although generally claiming, for example, that during the extended comment period there has been “no opportunity” to “seek public records because public offices have been closed,” the commenters did not identify any public records that would have been sought or explained how such records might have been relevant, and have made no showing of any attempt to obtain any such records. Moreover, EPA's original NPRM and NPRM extension did not limit the ability of any interested party to request an additional extension based on updated or more detailed concerns, but no additional request for extension was received after the NPRM 30-day extension.

Comment 2: EPA cannot lawfully eliminate Ohio Admin. Code 3745-15-07 from Ohio's State Implementation Plan through the CAA's error correction mechanism.

Response: Section 110(k)(6) of the CAA provides EPA with the authority to make corrections to actions that are subsequently found to be in error. Alabama Environmental Council v. Administrator, 711 F.3d 1277, 1286 (11th Cir. 2013) (“110(k)(6) provides an avenue for correcting a SIP revision approved in error”); see also Ass'n of Irritated Residents v. EPA, 790 F.3d 934, 948 (9th Cir. 2015) (110(k)(6) is a “broad provision” enacted to provide the EPA with an avenue to correct errors). The key provisions of section 110(k)(6) for present purposes are that the Administrator has the authority to “determine” when a SIP approval was “in error,” and when the Administrator does so, may then revise the SIP approval “as appropriate,” in the same manner as the prior action, and do so without requiring any further submission for the state. Id. at 1288. Moreover, CAA section 110(k)(6) “confers discretion on the EPA to decide if and when it will invoke the statute to revise a prior action.” Id.; 790 F.3d at 948 (section 110(k)(6) grants “EPA the discretion to decide when to act pursuant to that provision”). 1

While CAA section 110(k)(6) provides EPA with the authority to correct its own “error,” nowhere does this provision or any other provision in the CAA define what qualifies as “error.” Thus, EPA believes that the term should be given its plain language, everyday meaning, which includes all unintentional, incorrect or wrong actions or mistakes.

EPA has used CAA section 110(k)(6) as authority to make substantive corrections to remove a variety of provisions from SIPs that are not related to the attainment or maintenance of NAAQS or any other CAA requirement. See, e.g., “Approval and Promulgation of Implantation Plans; Kentucky: Approval of Revisions to the State Implementation Plan,” 75 FR 2440 (January 15, 2010) (correcting the SIP by removing a provision, approved in 1982, used to address hazardous or toxic air pollutants); “Approval and Promulgation of Implementation Plans; New York,” 73 FR 21546 (April 22, 2008) (issuing a direct final rule to correct a prior SIP by removing a general duty “nuisance provision” that had been approved in 1984); “Correction of Implementation Plans; American Samoa, Arizona, California, Hawaii, and Nevada State Implementation Plans,” 63 FR 34641 (June 27, 1997) (correcting five SIPs by deleting a variety of administrative provisions concerning variances, hearing board procedures, and fees that had been approved during the 1970s).

Comment 3: The proposed rule lacks any basis for the assertion that the air pollution nuisance rule in Ohio's SIP was approved in error and thus fails to meet the plain text requirements for application of 110(k)(6).

Response: The NPRM published on March 23, 2020, 85 FR 16309, states that EPA is “proposing to remove Ohio's nuisance rule from the Ohio SIP because it does not have a reasonable connection to the attainment and maintenance of the NAAQS,” and that the “prior approval of OAC 3745-15-07 into the Ohio SIP was in error.” In addition, the NPRM stated that the Ohio Environmental Protection Agency (Ohio EPA) had confirmed that Ohio did not rely on and did not intend to rely on the provision for purposes of attainment or maintenance of the NAAQS.

CAA section 110(k)(6) does not define the term “error.” EPA believes that the term should be given its plain language, common meaning, such that an error is a mistake or an incorrect, wrong, or inaccurate action. Under section 110(k)(6) EPA must make an error determination and provide the “the basis thereof.” There is no indication that this is a substantial burden for the Agency to meet. To the contrary, the requirement is met if EPA clearly articulates the error and the basis thereof. Ass'n of Irritated Residents, 790 F.3d at 948; see also Alabama Environmental Council, 711 F.3d at 1287-1288 (EPA must “articulate an `error' and provide `the basis' ” of its error determination, citing with approval EPA's error articulation in another EPA action at 76 FR 25178 (May 3, 2011)).

Here, EPA articulated its error and provided the basis thereof: SIPs provide for the implementation, maintenance, and enforcement of the NAAQS; the Ohio nuisance rule is not associated with the implementation, maintenance, or enforcement of the NAAQS; and EPA's previous approval in the SIP of the rule was erroneous. EPA's exclusion from the SIP of a nuisance provision unrelated to attainment and maintenance of the NAAQS is consistent with previous Agency practice. EPA has removed nuisance provisions from several SIPs, including those for the State of Michigan, 64 FR 7790, Commonwealth of Kentucky (Jefferson County portion), 66 FR 53657, and the State of Nevada, 69 FR 54006. Additionally, EPA has issued final rules declining to approve nuisance provisions into SIPs. (See 45 FR 73696, 46 FR 11843, 46 FR 26303 and 63 FR 51833.)  2

Comment 4: EPA's approval of the Ohio nuisance rule was purposeful and not in error as demonstrated by the August 13, 1984, 49 FR 32182, approval of revisions to the nuisance rule and subsequent comments from EPA on title V permits issued in Ohio which state that the nuisance rule is an applicable requirement under the SIP. Furthermore, inclusion of the nuisance rule is so integral to the SIP that it has been included in every title V permit issued and every permit issued by Ohio since adoption.

Response: The permit comments related to the Ohio nuisance rule are correct in that the rule is currently in the SIP and therefore an “applicable requirement” under the title V operating permit program. Confirmation of the fact that the rule is part of the SIP in the permitting process has no bearing on the appropriateness of that rule for inclusion in the SIP. The determination of whether a state rule is appropriate for inclusion in the SIP is beyond the scope of the permitting process. Inclusion of the Ohio nuisance rule in state permits does not demonstrate that the rule is integral to the SIP which is limited in scope by the CAA to the implementation, maintenance, and enforcement of the NAAQS. To the contrary, as noted, the Ohio EPA indicated that the nuisance rule was not intended to address the attainment or maintenance of the NAAQS.

The fact that EPA approved a revision to the Ohio nuisance rule in 1984 does not make approval any less in error; rather, it merely indicates that EPA unfortunately repeated its error. Nor is it material whether the error was intentional (or, per the commenters, “purposeful”) or inadvertent. It was erroneous for EPA to approve, as part of the SIP, the non-NAAQS related nuisance rule, and EPA has the authority under section 110(k)(6) to correct that error.

Comment 5: States have the right to create regulations that are more stringent than the Federal requirements.

Response: EPA does not dispute a state's right to create requirements that, as a matter of state law, are more stringent than the Federal requirements. Congress affirmed this principle in section 116 of the CAA. This does not, however, alter the fact that the requirements contained in SIP provisions are limited in scope by section 110(a) of the CAA. SIPs must provide for the implementation, maintenance, and enforcement of the NAAQS. Ohio's nuisance rule has no nexus to these statutorily prescribed requirements.

Comment 6: The record for the proposed action states that EPA was taking action to promote the novel doctrine of “regional consistency.” Such a doctrine completely contradicts the well-established principle that SIPs are tailored by states to meet their specific air pollution needs and desired protections.

Response: EPA believes that the commenter's reference to “the record” refers to a January 30, 2020, email from John Mooney, Acting Director, Air and Radiation Division, EPA, Region 5, to Robert Hodanbosi, Chief, Air Pollution Control, Ohio EPA (January email) that was placed in the docket for this rulemaking. It notes that similar provisions had already been removed from the SIPs of other Region 5 states, “because states did not rely on those provisions for attainment and maintenance of the NAAQS.” The purpose of the email was to inquire whether Ohio had relied on its nuisance rule in attainment and maintenance of the NAAQS before proceeding with an error correction. The reference in the January email to other state actions merely notes that EPA has reached a similar conclusion in other rulemaking actions.

Comment 7: The public cannot precisely tell what the question asked regarding Ohio EPA's reliance on the nuisance rule for “attainment” or “maintenance” in the January email means.

Response: The January email and the Ohio EPA response were included in the docket for the proposed rulemaking. The January email was clear in its request that Ohio EPA confirm that it had not relied upon the nuisance rule in any aspect related to the attainment or maintenance of a NAAQS. In Ohio EPA's response, it specifically states that it had not relied on the nuisance rule for “SIP planning, nonattainment designations, redesignation requests, maintenance plans, and determination of nonattainment areas or their boundaries.” EPA finds that Ohio EPA clearly understood the question being asked and clearly identified what was meant by “attainment” and “maintenance” in its response to EPA.

Comment 8: Commenters provided a declaration from William M. Auberle, a former official with the Regional Air Pollution Control Agency (RAPCA). Mr. Auberle states that he has direct knowledge of the inclusion of the Ohio nuisance rule in the Ohio SIP, that the nuisance rule is an important regulatory tool in achieving and maintaining the NAAQS, and that he personally used the nuisance rule while an official with RAPCA as an enforcement tool for achieving and maintaining the NAAQS.

Response: RAPCA is a bureau of the Division of Environmental Health within Public Health—Dayton and Montgomery County. It is a county agency that contracts with the Ohio EPA to enforce state and local air pollution control regulations in a six-county region of Ohio. EPA does not dispute that state and local agencies may have used the nuisance rule to achieve reductions in criteria pollutants or the importance of the rule as a tool for local authorities in the protection of public health and welfare. However, using the nuisance rule to achieve criteria pollutant reductions is not equivalent to relying on the rule for SIP purposes, which may include SIP planning, nonattainment designations, redesignation requests, maintenance plans, and determination of nonattainment areas or their boundaries. Furthermore, Ohio EPA, the state agency responsible for development and implementation of the SIP, has stated that it did not find “any instances of the nuisance rule, OAC 3745-15-07, being relied upon, or intended to be relied upon, for attainment or maintenance of any NAAQS.”

Comment 9: Congress intended citizen suits to be an integral part of CAA enforcement, including SIP enforcement. The NPRM ignores the important role of citizen suits in CAA enforcement.

Response: Congress limited the scope of SIPs required under section 110 of the CAA to the implementation, maintenance, and enforcement of the NAAQS. The purpose of this rulemaking action is to remove OAC 3745-15-07 from the Ohio SIP because it does not support such implementation, maintenance, and enforcement. This rulemaking action does not invalidate the Ohio law or affect its applicability to Ohio sources. Facilities located in Ohio are still subject to the state nuisance rule. While removal of this rule from the SIP would preclude its enforcement in Federal courts, it has no impact on the authority to bring citizen suits in state courts under state law.

Comment 10: Commenters state that the NPRM would harm already vulnerable Ohioans by eliminating an important environmental justice tool. Commenters also raise concerns with the potential impact on other sensitive populations such as children, the elderly, and individuals with various health issues including respiratory illnesses.

Response: The purpose of this rulemaking action is to remove OAC 3745-15-07 from the Ohio SIP because it is not related to the implementation, maintenance, and enforcement of the NAAQS. This rulemaking action does not invalidate the Ohio law or affect its applicability to Ohio sources. Facilities located in Ohio are still subject to the state nuisance rule. EPA supports programs and activities that promote enforcement of health and environmental statutes in areas with minority populations and low-income populations and the protection of children, the elderly, and other vulnerable populations.

Comment 11: Several commenters note recent studies linking particulate matter pollution to an increased incidence of COVID-19 infection and the potential for increased adverse outcomes in areas with higher levels of air pollution. Commenters state that considering the current pandemic, EPA should not be relaxing air pollution requirements at this time.

Response: The purpose of this rulemaking action is to remove OAC 3745-15-07 from the Ohio SIP because it is not an element of a plan for the implementation, maintenance, and enforcement of the NAAQS. Consideration of the impacts of air pollution on COVID-19 cases is beyond the scope of section 110 of the CAA and, thus, beyond the scope of this rulemaking. Furthermore, this rulemaking action does not invalidate the Ohio nuisance law or affect its applicability to Ohio sources, which remain subject to the rule as a matter of state law.

Comment 11: The following comment was made by over 1800 individuals through a letter-writing campaign.

“I oppose the rollback of the nuisance provision of Ohio's Clean Air Act regulations.

The nuisance provision ensures that threats to Ohioans' health and safety are prohibited, no matter what, and allows Ohio residents to take local pollution problems into their own hands and protect their communities by taking polluters to court. Without this provision, it will be more difficult for Ohioans to address local pollution problems.

Eliminating this provision also destroys an important tool that gives both regulators and Ohio residents flexibility to address serious health concerns based on new scientific developments.”

Response: The purpose of this rulemaking action is to remove OAC 3745-15-07 from the Ohio SIP because it is not an element of a plan for the implementation, maintenance, and enforcement of the NAAQS. This rulemaking action does not invalidate the Ohio nuisance law, affect its applicability to Ohio sources or preclude citizen suits in state court.

EPA has determined that OAC 3745-15-07 was not relied upon by Ohio to demonstrate the implementation, maintenance, or enforcement of the NAAQS. Consequently, EPA finds that its prior approval of OAC 3745-15-07 into the Ohio SIP was in error. To correct this error, EPA is removing OAC 3745-15-07 from the approved Ohio SIP pursuant to section 110(k)(6) of the CAA, and codifying this removal by revising the appropriate paragraph under 40 CFR part 52, subpart KK, 52.1870 (Identification of Plan).

In this document, EPA is amending regulatory text that includes incorporation by reference. As described in the amendments to 40 CFR part 52 set forth below, EPA is removing provisions of the EPA-Approved Ohio Regulations from the Ohio SIP, which is incorporated by reference in accordance with the requirements of 1 CFR part 51. EPA has made, and will continue to make the SIP generally available through www.regulations.gov and at the EPA Region 5 Office (please contact the person identified in the For Further Information Contact section of this preamble for more information).

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

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

• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because it is not a significant regulatory action under Executive Order 12866;

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

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

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

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

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

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

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

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

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

The Congressional Review Act, 5 U.S.C. 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 action 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. 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 January 19, 2021. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action 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).)

For reasons set out in the preamble, 40 CFR part 52 is amended as follows:

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

On July 23, 2020 (85 FR 44496), the EPA proposed to approve the following rule and negative declaration, listed in Table 1, into the California SIP.

We proposed to approve this rule and negative declaration because we determined that they comply with the relevant CAA requirements. Our proposed action contains more information on the rule, the negative declaration and our evaluation.

The EPA's proposed action provided a 30-day public comment period. During this period, we received no comments.

Pursuant to section 110(k)(3) of the Act, and for the reasons set forth in the proposed rule and related technical support documents, the EPA is fully approving this rule and negative declaration into the California SIP.

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the SMAQMD rule described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents available through www.regulations.gov and at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Under the Clean Air Act, 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 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);

• Is not an Executive Order 13771 (82 FR 9339, February 3, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;

• 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 Clean Air Act; and

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

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the 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).

The Congressional Review Act, 5 U.S.C. 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. The EPA will submit a report containing this action 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. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 19, 2021. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action 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).)

For the reasons stated in the preamble, the EPA amends, part 52, Chapter I, Title 40 of the Code of Federal Regulations as follows:

On January 27, 2020, NMFS published a final rule in the Federal Register (85 FR 4588) to implement revisions to commercial management measures contained in Regulatory Amendment 27 that included regulatory revisions for South Atlantic red porgy, among other measures for snapper-grouper species. That final rule became effective on February 26, 2020.

In the regulatory text of the final rule for Regulatory Amendment 27, NMFS inadvertently neglected to remove a prohibition on the sale and purchase of red porgy during the months of January through April in 50 CFR 622.192(f) that NMFS said it was removing.

The discussions in Regulatory Amendment 27, as well as the associated proposed and final rules, were clear that the existing measure that prohibits the sale and purchase of red porgy from January through April was being removed. Thus, through this correcting amendment, NMFS corrects 50 CFR 622.192 by removing paragraph (f).

Pursuant to section 304(b)(3) of the Magnuson-Stevens Act, the NMFS Assistant Administrator (AA) has determined that this final rule is consistent with Regulatory Amendment 27, the Snapper-Grouper FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.

This final rule has been determined to be not significant under Executive Order 12866. This final rule is not an Executive Order 13771 regulatory action because this final rule is not significant under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B), the AA finds good cause to waive prior notice and opportunity for additional public comment because it would be unnecessary and contrary to the public interest. This correcting amendment removes an incorrect restriction applicable to the sale and purchase of red porgy during the months of January through April. Providing prior notice and opportunity for public comment is unnecessary and contrary to the public interest because the final rule implementing Regulatory Amendment 27 that explained it would be removing this restriction was already subject to notice and public comment, and further opportunity for public comment would delay the removal of the sale and purchase restriction for red porgy during January through April, which remains in the regulations in error. Further, this correction is a non-substantive change and retaining the incorrect restriction will cause confusion among the affected fishermen and law enforcement.

For the same reasons, the AA also finds good cause, pursuant to 5 U.S.C. 553(d)(3), to waive the 30-day delay in effective date for this correcting amendment, because this non-substantive correction will prevent confusion about the sale and purchase of red porgy each year during January through April.

Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 553, or any other law, this rule is exempt from the procedures of the Regulatory Flexibility Act. Accordingly, no Regulatory Flexibility Analysis is required and none has been prepared.

This final rule contains no information collection requirements under the Paperwork Reduction Act of 1995.

Accordingly, 50 CFR part 622 is corrected by making the following correcting amendment: