EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2021-0096, dated March 31, 2021 (EASA AD 2021-0096), 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 A119 and AW119 MKII helicopters, all serial numbers.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Leonardo S.p.a. Model A119 and AW119 MKII helicopters. The NPRM published in the Federal Register on July 20, 2021 (86 FR 38242). The NPRM was prompted by reports of abnormal play on the collective torque tube on two Model AW119 MKII helicopters. Investigations revealed that these events were due to an erroneous manufacturing process, affecting certain collective torque tube assemblies. The affected batch numbers were identified. Leonardo S.p.a. Model A119 helicopters are similar in design and may be subject to the same unsafe condition revealed on the Model AW119 MKII helicopters. The NPRM proposed to require repetitive inspections of affected torque tube assemblies for any deficiency and corrective action if necessary; and the replacement of any affected part with a serviceable part, which is terminating action for the repetitive inspections, as specified in EASA AD 2021-0096.

The FAA is issuing this AD to address abnormal play on the collective torque tube, which could result in reduced control of the helicopter, resulting in a forced landing and consequent damage to the helicopter and injury to occupants. See EASA AD 2021-0096 for additional background information.

The FAA received one comment from Air Methods Corporation (Air Methods). The following presents the comment received on the NPRM and the FAA's response to that comment.

Air Methods requested that paragraph (h)(6) in the “Exceptions to EASA AD 2021-0096” paragraph of the proposed AD be revised to allow additional appropriate actions for torque tubes that have batch numbers that are “doubted.” The commenter stated that applying the Group 1 inspection and replacement criteria to any torque tube, regardless of batch number, is the most conservative action possible within the scope of the service information referenced in EASA AD 2021-0096.

The FAA does not agree with the commenter's request. The intent of this AD is match the intent of EASA AD 2021-0096, which does not include torque tube batch numbers that are unknown or “in doubt” within the Group 1 helicopters. Also, if a “doubted” torque tube batch number is ultimately determined not to be within the number ranges designated as Group 1 or Group 2 in EASA AD 2021-0096, then it would be unnecessary to subject that torque tube to the inspection and replacement requirements for Group 1 helicopters. In addition, once this AD is published, any person may request an alternative method of compliance (AMOC) by using the procedures specified in paragraph (j) of this AD. The FAA has not changed this AD regarding this issue.

The FAA reviewed the relevant data, considered the comment received, and determined that air safety requires adopting this AD as proposed. Except for minor editorial changes this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products.

EASA AD 2021-0096 requires repetitive inspections of the affected torque tube assemblies for any deficiency ( i.e., any play) by marking the torque tube assembly and the collar and applying specific loads to determine if there is any play; and replacement of any affected part that has any play with a serviceable part. EASA AD 2021-0096 also requires the eventual replacement of any affected part with a serviceable part, and specifies that replacement of an affected part on a helicopter constitutes terminating action for the repetitive inspections for that helicopter.

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.

EASA AD 2021-0096 supersedes EASA AD 2019-0057, dated March 20, 2019 (EASA AD 2019-0057). The Group 1 helicopters identified in both EASA AD 2021-0096 and EASA AD 2019-0057 are helicopters with collective stick torque tube assemblies having part number (P/N) 109-0011-03-105 and batch number 823207 or earlier. Paragraph (1) of EASA AD 2021-0096 addresses Group 1 helicopters that have incorporated the actions required by paragraph (2) of EASA AD 2019-0057. The FAA did not issue an AD that corresponds to EASA AD 2019-0057, therefore, this AD requires, for Group 1 helicopters, an initial inspection of the torque tube assembly within 50 hours time-in-service (TIS) after the effective date of the FAA AD and repetitive inspections thereafter at intervals not to exceed 100 hours TIS.

In addition, where paragraph (5) of EASA AD 2021-0096 specifies, for Group 1 helicopters, replacement of an affected part with a serviceable part “within 36 months after April 3, 2019 [the effective date of EASA AD 2019-0057]”, for this AD, the compliance time is within 24 months after the effective date of this AD.

The FAA estimates that this AD affects 136 helicopters of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA has included all known costs in its cost estimate. According to the manufacturer, however, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected operators.

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:

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 EC 155B and EC155B1 helicopters. The NPRM published in the Federal Register on July 22, 2021 (86 FR 38608). In the NPRM, the FAA proposed to require for helicopters with at least one Type Y planet gear assembly with a certain serial number (S/N) installed, or at least one Type Z planet gear assembly with a certain S/N installed, within 10 hours time-in-service (TIS) after the effective date of the AD and thereafter at intervals not to exceed 10 hours TIS, inspecting the MGB magnetic plugs for particles. If there are particles, the NPRM proposed to require further inspections and analyses and replacing the MGB, depending on the type and the size of the particles.

The NPRM also proposed to require for helicopters with a Type Y planet gear assembly with a certain S/N installed, within 25 hours TIS after the effective date of the AD, inspecting the MGB filter for particles. If there are particles, the NPRM proposed to require further inspections and analyses and replacing the MGB, depending on the type and the size of the particles. The NPRM proposed to require for helicopters with at least one Type Y planet gear assembly with a certain S/N installed, within 50 hours TIS after the effective date of the AD, replacing the MGB. As an alternative to replacing the MGB, the NPRM would allow replacing the epicyclic reduction gear in the affected MGB.

Additionally, the NPRM proposed to require, for helicopters without any Type Y planet gear assembly but at least one Type Z planet gear assembly with a certain S/N installed, replacing the MGB within 50 hours TIS after the effective date of the AD or before any planet gear assembly accumulates 1,800 total hours TIS, whichever occurs later. As an alternative to replacing the MGB, the NPRM would allow replacing the epicyclic reduction gear in the affected MGB.

The NPRM also proposed to require, for helicopters with at least one Type Z planet gear with a certain S/N installed, within certain compliance times specified in the figures in this AD, inspecting the MGB filter and inspecting the oil sump for particles. If there are particles, the NPRM proposed to require further inspections and analyses, and replacing the MGB, depending on the type and the size of the particles.

The NPRM also proposed to prohibit installing an MGB with a certain serial numbered Type Y planet gear assembly and proposed to prohibit installing a Type Y planet gear assembly with a certain S/N on any helicopter.

Additionally, the NPRM proposed to prohibit installing certain serial numbered Type Z planet gear assemblies that have accumulated 1,800 or more total hours TIS and prohibit installing an MGB with certain serial numbered Type Z planet gear assemblies that have accumulated 1,800 or more total hours TIS.

Finally, the NPRM proposed to prohibit installing an MGB if the type of the planet gear assembly cannot be determined and also prohibit installing any planet gear assembly if the type cannot be determined.

The NPRM was prompted by EASA AD 2018-0263, dated December 7, 2018 (EASA AD 2018-0263), issued by EASA, which is the Technical Agent for the Member States of the European Union, to correct an unsafe condition for Airbus Helicopters Model EC 155 B and EC 155 B1 helicopters. EASA advises that after an accident on a Model EC225 helicopter, an investigation revealed the failure of an MGB second stage planet gear. EASA states that one of the two types of planet gear used in the MGB epicyclic module is subject to higher outer race contact pressures and therefore is more susceptible to spalling and cracking. This condition, if not addressed, could result in failure of a MGB planet gear assembly, failure of the MGB, and subsequent loss of helicopter control.

Accordingly, EASA AD 2018-0263 requires repetitive inspections of the MGB magnetic plugs, the MGB filer, and the oil sump for particles, and depending on the results of those inspections, removing or replacing certain parts. EASA AD 2018-0263 also requires reducing the life limit of Type Z planet gear assemblies. EASA AD 2018-0263 also requires, if certain gear assemblies are installed, either replacing the MGB or replacing the epicyclic reduction gear. Finally, EASA AD 2018-0263 prohibits installing a Type Y planet gear assembly or an MGB with a Type Y planet gear assembly on any helicopter.

The FAA received comments from one commenter. The following presents the comments received on the NPRM and the FAA's response.

Airbus Helicopters Inc., requested that the FAA revise the Required Actions section of this AD dealing with the 25 hours TIS inspection for the oil sump (also referred to as inspecting the bottom housing of the MGB) by removing that repetitive inspection and explained that some of the proposed actions are unclear and not in line with the original equipment manufacturer's (OEM) service information. The commenter also provided an example of a similar AD, AD 2021-12-06, Amendment 39-21593 (86 FR 31612, June 15, 2021) (AD 2021-12-06), stating that AD 2021-12-06 is clear in explaining both the required repetitive actions and the limits provided by the OEM for the MGB oil filter inspection after finding particle(s) on the chip detector. The commenter stated that, as written, the proposed actions would create extra work, which could lead to an unwanted condition exposing the dynamic component to possible contamination and possibly foreign object debris.

The FAA agrees that the repetitive 25 hours TIS oil sump inspection for Type Y planet gears is not necessary and has revised paragraph (g)(1) of the Required Actions section in this final rule by deleting this inspection.

The FAA reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD as proposed, except for the change described previously, updating the service information for the optional replacement of the epicyclic reduction gear module in paragraphs (g)(3) and (4) of this AD, and for clarity, deleting the corrective actions when there are no 16NCD13 particles. The FAA has determined that these changes will not increase the economic burden on any operator or increase the scope of this final rule.

The FAA reviewed Airbus Helicopters Alert Service Bulletin ASB No. EC155-05A034, Revision 5, dated December 4, 2018 (ASB EC155-05A34 Rev 5) for Model EC 155 helicopters, which specifies periodic inspections of the MGB magnetic plugs, the MGB filter, and the oil sump for particles. ASB EC155-05A34 Rev 5 also specifies identifying the type of gear assembly installed in the MGB and replacing any Type Y planet gear assembly within 50 hours TIS. For Type Z gear assemblies that have logged less than 1,800 hours TIS since new, this service information specifies replacing the gear assembly before exceeding 1,800 total hours TIS, and for Type Z gear assemblies that have logged 1,800 or more total hours TIS, replacing the gear assembly within 600 hours TIS.

The FAA also reviewed Airbus Helicopters Service Bulletin SB No. EC155-63-016, Revision 5, dated March 6, 2019, for Model EC 155 helicopters. This service information specifies procedures for replacing the MGB epicyclic reduction gear without removing the MGB.

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

EASA AD 2018-0263 specifies compliance times based on flight hours and calendar dates. This AD sets compliance times based on hours TIS or before further flight. EASA AD 2018-0263 allows a pilot to inspect the MGB magnetic plugs for particles, while this AD does not. For helicopters with at least one affected Type Z planet gear assembly that has accumulated 1,800 or more total hours TIS installed, EASA AD 2018-0263 requires replacing the MGB or epicyclic reduction gear within 600 flight hours after March 16, 2018, whereas this AD requires either of those replacements within 50 hours TIS after the effective date of this AD instead. If 16NCD13 particles are present, EASA AD 2018-0263 requires taking a 1 liter sample of oil and returning it to Airbus Helicopters and removing the MGB for depot-level inspection, whereas this AD requires replacing the MGB instead.

The FAA estimates that this AD affects 14 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this AD.

Inspecting the magnetic plugs for particle deposits takes about 1 work-hour for an estimated cost of $85 per helicopter per inspection cycle.

Inspecting the MGB filter or oil sump for particle deposits takes about 1 work-hour for an estimated cost of $85 per helicopter per inspection cycle.

Replacing an MGB takes about 42 work-hours, and parts cost about $295,000 (overhauled) for an estimated total cost of $298,570 per helicopter.

Replacing the epicyclic reduction gear takes about 56 work-hours and parts cost about $11,404 for an estimated total cost of $16,164 per helicopter.

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 ASI Aviation (type certificate previously held by Reims Aviation S.A.) Model F406 airplanes. The NPRM published in the Federal Register on August 27, 2021 (86 FR 48067). The NPRM was prompted by MCAI originated by the European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union. EASA issued AD 2019-0015, dated January 29, 2019 (referred to after this as “the MCAI”), to correct an unsafe condition on ASI Aviation (type certificate previously held by Reims Aviation S.A.) Model F406 airplanes. The MCAI states:

You may examine the MCAI in the AD docket at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-0714.

The FAA received no comments on the NPRM or on the determination of the costs.

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 this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI and service information referenced above. The FAA determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. This AD is adopted as proposed in the NPRM.

The FAA reviewed ASI Aviation Service Bulletin No. F406-62, Revision 01, dated December 14, 2018, which specifies inspecting the CB switches to determine the date code, replacing CB switches with certain date codes, and establishing a life limit of 6 years for the new CB switches. The FAA also reviewed ASI Aviation Service Bulletin No. F406-90, dated December 14, 2018, which specifies replacing the CB switches and establishing a life limit of 6 years for the new CB switches. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

The MCAI allows installation of an affected CB switch until the airplane is modified. This AD prohibits installation of an affected CB switch as of the effective date of this AD.

The FAA estimates that this AD affects 4 airplanes of U.S. registry.

The FAA also estimates that it would take about 5 work-hours per airplane to comply with the inspection required by this AD. The average labor rate is $85 per work-hour.

Based on these figures, the FAA estimates the inspection cost of this AD on U.S. operators to be $1,700 or $425 per airplane.

In addition, the FAA estimates that each replacement required by this AD would take about 1 work-hour and require parts costing $350. Based on these figures, the FAA estimates the replacement cost of this AD on U.S. operators to be $435 per airplane.

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:

The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2021-0044, dated February 5, 2021 (EASA AD 2021-0044) (also referred to as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for all Leonardo S.p.a. Model AB139 and AW139 helicopters.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Leonardo S.p.a. Model AB139 and AW139 helicopters. The NPRM published in the Federal Register on June 14, 2021 (86 FR 31451). The NPRM was prompted by a report of a short circuit caused by chafing of the electrical wiring in the overhead panel. The NPRM proposed to require an initial detailed inspection inside the overhead panel for certain helicopters, repetitive detailed inspections inside the overhead panel for all helicopters, and corrective actions if necessary, as specified in EASA AD 2021-0044.

The FAA is issuing this AD to address a short circuit caused by chafing of the electrical wiring in the overhead panel, which could cause damaged electrical wiring, possible fire in the overhead panel, and loss of control of the helicopter. See the MCAI for additional background information.

The FAA gave the public the opportunity to participate in developing this final rule. The following presents the comment received on the NPRM and the FAA's response to each comment.

An anonymous commenter requested that the FAA revise the NPRM to include a paragraph that allows credit for the use of a later revision of the service information referenced in EASA AD 2021-0044.

The FAA disagrees with the request because, in this case, credit is unnecessary. The FAA is incorporating by reference EASA AD 2021-0044 as the method for accomplishing the actions required by this AD. EASA AD 2021-0044 includes the Ref. Publications section, which allows the use of later approved revisions of the service information referenced in EASA AD 2021-0044. Therefore, no change has been made to this AD.

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 2021-0044 requires an initial detailed inspection (for certain helicopters) inside the overhead panel for chafing of the cable harnesses and for correct clearance between the anchor nuts/screws and the cable harnesses, of the screws for correct length, and of the supports for sound bonding, and corrective actions if necessary; repetitive detailed inspections (for all helicopters) inside the overhead panel for the condition of the white protective tape on the anchor nuts, and for chafing of the cable harnesses and for correct clearance between the anchor nuts/screws and the cable harnesses, and corrective actions if necessary. Corrective actions include applying a white protective tape on the anchor nuts, replacement of incorrect length screws, replacement of damaged cables and fuses, rerouting of cable harnesses, replacement of supports, and removal and replacement of the white protective tape.

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.

Although EASA AD 2021-0044 and the service information referenced in EASA AD 2021-0044 specify to submit certain information 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.

The FAA estimates that this AD affects 128 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:

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2020-0281, dated December 16, 2020 (EASA AD 2020-0281), to correct an unsafe condition for certain serial-numbered Airbus Helicopters (AH), formerly Eurocopter, Eurocopter France, Aerospatiale Model AS 332 L2 and EC 225 LP helicopters.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain serial-numbered Airbus Helicopters Model AS332L2 and EC225LP helicopters. The NPRM published in the Federal Register on August 25, 2021 (86 FR 47420). The NPRM was prompted by a design deficiency involving the incorrect wiring routing of the electrical hoist installation. The affected wiring was not protected by the circuit breaker that was intended to provide electrical protection for that wiring. The NPRM proposed to require modifying the hoist control power supply, as specified in EASA AD 2020-0281.

The FAA is issuing this AD to correct the electrical hoist installation wiring routing. See EASA AD 2020-0281 for additional background information.

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

The FAA reviewed the relevant data and determined that air safety and the public interest require adopting this final rule as proposed.

EASA AD 2020-0281 requires modifying the hoist control power supply.

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 5 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this AD.

Modifying the electrical hoist control power supply takes about 4 work-hours and parts cost about $10, for an estimated cost of $350 per helicopter and $1,750 for the affected U.S. fleet.

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:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, part A, subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would modify the Class D airspace to support IFR operations at McChord Field (Joint Base Lewis-McChord), Tacoma, WA.

The FAA initiated a review of the assigned airspace at McChord Field (Joint Base Lewis-McChord), Tacoma, WA due to three events. The FAA decommissioned the McChord VOR because the U.S. Air Force will no longer maintain the NAVAID. As a result of the decommissioning, the FAA is required to redefine the airspace that uses the VOR as a reference and remove the reference from the associated airspace descriptions. The U.S. Air Force requested the elimination of airspace previously excluded for operations at Spanaway Airport (S44). In response, the FAA completed an airspace review to evaluate that request and the Class D airspace had not been examined in the previous two years as required by FAA Orders.

The FAA published a notice of proposed rulemaking; supplemental in the Federal Register (86 FR 39986; July 26, 2021) for Docket No. FAA-2020-0896 to modify the Class D airspace at McChord Field (Joint Base Lewis-McChord), Tacoma, WA. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. There were 29 comments received, with two of those from the Air Force. The military was not in favor of the proposal to provide Shady Acres Airpark (3B8) with airspace to accommodate their operations. However, FAA policy requires the use of shelves and/or cutouts to the extent practicable to exclude satellite airports from the Class D airspace. 3B8, from the north end of its runway, is only 0.3 nautical miles from the Class D airspace.

The Air Force declared that 3B8 is “requesting a shelf like the current Spanaway shelf that is being given back to TCM.” The FAA does not agree, as the two areas are neither similar in size nor shape. The proposal recommends a shelf for 3B8 of approximately 1.07 square miles and the shelf provided for S44 is approximately 11.21 square miles. In addition, the FAA is not “giving back” airspace to the Air Force, but rather assigning regulations for the use of the public's airspace to maximize safety and protect the public's right of transit. Title 49 of the United States Code (49 U.S.C.) Section 40103, entitled “Sovereignty and use of airspace”, is what provides the FAA its legal authority to manage the NAS. In that reference, it states, “A citizen of the United States has a public right of transit through the navigable airspace.” Minimizing the volume of airspace identified to satisfy justified airspace requirements when establishing or validating airspace actions ensures the FAA is being consistent with its legislated responsibilities. While the FAA is proposing to amend the exclusionary language for the area that was provided previously for operations at S44, it is doing so to protect aircraft operating under Instrument Flight Rules (IFR) at TCM and Visual Flight Rules (VFR) at 3B8.The military further stated they have developed a low level C-17 demonstration team and that the C-17s will fly throughout their Class D airspace at low altitudes for training. They also indicated a potential use of the Class D area to the southeast for practice approaches by Gray Army Airfield helicopters. Several factors mitigate these concerns.

• As explained, the FAA does not regulate airspace based on potential use, but rather justifiable need.

• The area proposed for 3B8 arrivals and departures is over congested areas of a city, town or settlement and aircraft must maintain a minimum altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet (.33 nm) of the aircraft, as outlined in Title 14 of the Code of Federal Regulations (CFR). The area proposed for 3B8 has a ceiling of 1,000 feet MSL or approximately 600 feet AGL. Due to the altitude restriction in Title 14, the C-17s would have to overfly most of this area at a minimum of 1,200 feet AGL to ensure they are 1,000 feet above the highest obstacles affecting the proposed airspace.

• The Traffic in this area, between October 2020 and October 2021, was operating at altitudes between 2,000 and 4,000 MSL except when entering the TCM Traffic Pattern, west of the proposed cutout, at 1,800 feet MSL.

• The area previously excluded from the Class D, which includes a much smaller area for 3B8, has been established for at least 30 years with a ceiling of 1,000 feet MSL, without adverse impact to the “Demonstration Team.”

• TCM has no IFR approaches to the southeast for practice. All approaches and departures at TCM operate north and south.

• TCM has restricted areas and Military Operations Areas established that provide airspace for low level demonstration flights and practice approaches.

• The lateral boundary of TCM's Class D airspace has been expanded a mile beyond that which is normally provided for a location with similar IFR procedures and terminal VFR operations, extending to a radius of 5.4 nautical miles. This additional area provides protection due to the density and diversity of aircraft that can operate in the airspace and circling at TCM. The airspace also includes an additional 1.2 nautical miles of Class D to the south for helicopters to transition safely east of the base.

The remaining comments were from the Airport Manager, private pilots, the Aircraft Owners and Pilots Association (AOPA) and interested businesses and citizens. All of these comments supported airspace being provided for operations at 3B8. Eight comments supported the proposal as drafted, five requested the airspace currently excluded for S44 be continued and ten commenters requested the FAA provide an exclusion from the Class D 1.5 miles west of 3B8 and 3 miles north, up to 1300 feet. AOPA recommended 2 miles west and a straight out approach to the north. Three comments were duplicates or additional comments from the same person. The FAA does not concur that the airspace excluded for S44 is necessary for the safety of VFR aircraft on approach or departure at 3B8. 3B8 is located 5.2 nm from the approach end of TCM runway (AER) 34 and is 0.3 nm outside the Class D area. S44, which is now closed, was within the lateral boundaries of the Class D at 2.8 nm from TCM AER 34. Also, the traffic pattern for 3B8 restricts approaches to east of the runway, mitigating interaction with the turbojets at TCM. However, the FAA does concur the thermal updrafts located 0.4 nm and 0.7 nm northeast of 3B8 and the potential for wake turbulence from C-17 overflights do pose a risk to operations and are a consideration in the design of the airspace.

Class D airspace designations are published in paragraph 5000 of FAA Order JO 7400.11F, dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The Class D airspace designation listed in this document will be published subsequently in FAA Order JO 7400.11F.

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

This amendment to 14 CFR part 71 modifies the Class D airspace, extending upward from the surface, at McChord Field (Joint Base Lewis McChord), Tacoma, WA. The exclusion of Class D airspace that is southeast of the airport will be modified to facilitate the use of the airspace for aircraft arriving and departing 3B8, in keeping with FAA Directives. A portion of the airspace overlying Lakewood, WA would also be eliminated, as it is no longer needed.

In addition, the Legal Descriptions Heading will be corrected to identify the proper city and state, the name of the airport, and the geographical coordinates for McChord Field (Joint Base Lewis McChord) to match the FAA's National Airspace System Resource (NASR) database.

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

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

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant the preparation of an environmental assessment.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, part A, subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it will modify the Class D airspace to support IFR operations at Gray AAF (Joint Base Lewis-McChord), Fort Lewis/Tacoma, WA.

The FAA published a notice of proposed rulemaking in the Federal Register (85 FR 71290; November 9, 2020) for Docket No. FAA-2020-0899 to modify the Class D airspace at Gray AAF (Joint Base Lewis-McChord), Fort Lewis/Tacoma, WA. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class D airspace designations are published in paragraph 5000 of FAA Order JO 7400.11F, dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The Class D airspace designation listed in this document will be published subsequently in FAA Order JO 7400.11.

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

The FAA is amending 14 CFR part 71 by modifying the lateral dimensions of the Class D airspace. The Class D airspace lateral boundary will be established within a 4-mile radius of the airport instead of a 4.3-mile radius. The additional airspace is no longer needed.

In addition, the name and city of the airport and the geographical coordinates for Gray AAF (Joint Base Lewis-McChord) will be updated to match the FAA's National Airspace System Resource (NASR) database.

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

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

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant the preparation of an environmental assessment.

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

The Entity List (supplement no. 4 to part 744 of the EAR) identifies entities for which there is reasonable cause to believe, based on specific and articulable facts, that the entities have been involved, are involved, or pose a significant risk of being or becoming involved in activities contrary to the national security or foreign policy interests of the United States. The EAR (15 CFR parts 730-774) impose additional license requirements on, and limit the availability of most license exceptions for, exports, reexports, and transfers (in-country) to listed entities. The license review policy for each listed entity is identified in the “License Review Policy” column on the Entity List, and the impact on the availability of license exceptions is described in the relevant Federal Register document adding entities to the Entity List. BIS places entities on the Entity List pursuant to part 744 (Control Policy: End-User and End-Use Based) and part 746 (Embargoes and Other Special Controls) of the EAR.

The MEU List (supplement no. 7 to part 744 of the EAR) identifies entities that have been determined by the End-User Review Committee (ERC) to be `military end users' pursuant to § 744.21 of the EAR. That section imposes additional license requirements on, and limits the availability of most license exceptions for, exports, reexports, and transfers (in-country) to listed entities on the MEU List, as specified in supplement no. 7 to part 744 and in § 744.21 of the EAR. Entities are listed on the MEU List under the destinations of Burma, China, Russia, or Venezuela. The license review policy for each listed entity is identified in the introductory text of the MEU List (supplement no. 7 to part 744) and in § 744.21(e) of the EAR. The MEU List's introductory text and § 744.21 of the EAR also specify the scope of the license requirements and limitations on the use of EAR license exceptions.

The ERC, composed of representatives of the Departments of Commerce (Chair), State, Defense, Energy and, where appropriate, the Treasury, makes all decisions regarding additions to, removals from, or other modifications to the Entity List and the MEU List. The ERC makes all decisions to add an entry to the Entity List and MEU List by majority vote and all decisions to remove or modify an entry by unanimous vote.

Under § 744.11(b) (Criteria for revising the Entity List) of the EAR, entities for which there is reasonable cause to believe, based on specific and articulable facts, that the entities have been involved, are involved, or pose a significant risk of being or becoming involved in activities that are contrary to the national security or foreign policy interests of the United States, and those acting on behalf of such entities, may be added to the Entity List. Paragraphs (b)(1) through (5) of § 744.11 provide an illustrative list of activities that could be considered contrary to the national security or foreign policy interests of the United States.

This rule implements the decision of the ERC to add twenty-seven entities to the Entity List. These twenty-seven entities will be listed on the Entity List under the destinations of China, Japan, Pakistan, and Singapore. The ERC made the decision to add the twenty-seven entities identified below under the standard set forth in § 744.11(b) of the EAR.

Specifically, the ERC decided to add three affiliates of Corad Technology Limited, an entity added to the Entity List under China (with a Hong Kong address) on August 14, 2019 (84 FR 40241), as follows: One affiliate in China (Corad Technology (Shenzhen) Ltd.); one affiliate in Singapore (Corad Technology Pte Ltd.); and one affiliate in Japan (Corad Technology Japan K.K.). These three affiliates of Corad Technology Limited have been involved in sales of technology from the United States and other Western nations to Iran's military and space programs, Democratic People's Republic of Korea (North Korea) front companies, and Chinese government and defense industry subordinate entities. BIS is also adding a reference under Taiwan to one of Corad Technology Limited's offices, the Corad Taiwan Representative Office, which has also been involved in such technology sales. Identifying the office in this manner provides notice to the public that the office is subject to the Entity List licensing requirements that apply to Corad Technology Limited. BIS is also making a conforming change to the entry for Corad Technology Limited located in Hong Kong that directs the public to the two addresses for the Corad Taiwan Representative Office in Taiwan.

The ERC decided to add the following five entities: Hangzhou Zhongke Microelectronics Co., Ltd., Hunan Goke Microelectronics, New H3C Semiconductor Technologies Co., Ltd., Xi'an Aerospace Huaxun Technology, and Yunchip Microelectronics, all located in China, for their support of the military modernization of the People's Liberation Army.

The ERC decided to add three entities in China (Hefei National Laboratory for Physical Sciences at Microscale, QuantumCTek Co., and Shanghai QuantumCTeck Co., Ltd.) to the Entity List for acquiring and attempting to acquire U.S.-origin items in support of military applications.

The ERC decided to add Shaanxi Zhi En Electromechanical Technology Co., Ltd. located in China; and Q&N Traders, U.H.L. Company, Jiuding Refrigeration & Air-conditioning Equipment Co (Pvt) Ltd, K-SOFT Enterprises, Seljuk Traders (SMC-Private) Limited, Global Tech Engineers, Asay Trade & Supplies, and Jade Machinery Pvt. Ltd., all located in Pakistan, to the Entity List based on their contributions to Pakistan's unsafeguarded nuclear activities.

The ERC decided to add Poly Asia Pacific Ltd. (PAPL) and Peaktek Company Ltd., both entities located in China, to the Entity List based on its contributions to Pakistan's unsafeguarded nuclear activities. The ERC also decided to add Al-Qertas, located in Pakistan, to the Entity List based on their contributions to Pakistan's unsafeguarded nuclear activities.

The ERC decided to add Broad Engineering located in Pakistan to the Entity List based on its contributions to Pakistan's ballistic missile program.

The ERC decided to add Prime Tech, located in Pakistan, and two of its employees, Muhammad Ashraf and Muhammad Farrukh, also located in Pakistan, to the Entity List for procuring items subject to the EAR on behalf of Techlinks, an entity located in Pakistan that was added to the Entity List in September 2018, without the licenses required by § 744.11(a) of the EAR. See 83 FR 44824 (September 4, 2018; 84 FR 61538 (November 13, 2019)).

Pursuant to § 744.11(b) of the EAR, the ERC determined that the conduct of the above-described twenty-seven entities raises sufficient concerns that prior review, via the imposition of a license requirement for exports, reexports, or transfers (in-country) of all items subject to the EAR involving these twenty-seven entities, is appropriate. The ERC also determined that the possible issuance of license denials or the possible imposition of license conditions on shipments to these entities will enhance BIS's ability to prevent violations of the EAR or otherwise protect U.S. national security or foreign policy interests.

For the twenty-seven entities added to the Entity List in this final rule described under this section, Section A, Additions to the Entity List, BIS imposes a license requirement that applies to all items subject to the EAR. In addition, no license exceptions are available for exports, reexports, or transfers (in-country) to the persons being added to the Entity List in this rule. BIS imposes a license review policy of a presumption of denial for these twenty-seven entities.

For the reasons described above, this final rule adds the following twenty-seven entities to the Entity List:

• Corad Technology (Shenzhen) Ltd.;

• Hangzhou Zhongke Microelectronics Co., Ltd.;

• Hefei National Laboratory for Physical Sciences at Microscale;

• Hunan Goke Microelectronics;

• New H3C Semiconductor Technologies Co., Ltd.;

• Peaktek Company Ltd.;

• Poly Asia Pacific Ltd., (PAPL);

• QuantumCTek Co., Ltd.;

• Shaanxi Zhi En Electromechanical Technology Co., Ltd.;

• Shanghai QuantumCTek Co., Ltd.;

• Xi'an Aerospace Huaxun Technology; and

• Yunchip Microelectronics.

• Corad Technology Japan K.K.

• Al-Qertas;

• Asay Trade & Supplies;

• Broad Engineering (Pakistan);

• Global Tech Engineers;

• Jade Machinery Pvt. Ltd.;

• Jiuding Refrigeration & Air-conditioning Equipment Co (Pvt) Ltd.;

• K-SOFT Enterprises;

• Muhammad Ashraf;

• Muhammad Farrukh;

• Prime Tech;

• Q&N Traders;

• Seljuk Traders (SMC-Private) Limited; and

• U.H.L. Company.

• Corad Technology Pte Ltd.

The acronym “a.k.a.,” which is an abbreviation of “also known as,” is used in entries on the Entity List to identify aliases, thereby assisting exporters, reexporters, and transferors in identifying entities on the Entity List.

This rule implements a modification to one existing entry for “Corad Technology Limited,” first added to the Entity List under the destination of China on August 14, 2019 (84 FR 40241 (August 14, 2019)). Specifically, this rule modifies the entry for this entity by adding a parenthetical sentence that directs the public to the Corad Taiwan Representative Office's addresses in Taiwan. This rule also revises the Entity List under Taiwan to add a reference to the Corad Taiwan Representative office and its addresses.

This rule implements a correction to one existing entry on the Entity List under the destination of China. The correction is to the entity “Shenzhen Cobber Information Technology Co., Ltd.” This entity was added to the Entity List on July 12, 2021 (86 FR 36499 (July 12, 2021)) (“the July 12 rule”). The July 12 rule inadvertently included a semicolon in the middle of one of the six aliases, “Shenzhen Kehao Information; Technology Co., Ltd.,” thereby raising a question as to the name of this alias and whether BIS intended to list two separate aliases. This rule removes the semicolon from this alias, resulting in the corrected name, “Shenzhen Kehao Information Technology Co., Ltd.,” and clarifying that BIS listed only six aliases in total.

Under § 744.21(b) of the EAR, BIS may inform persons either individually by specific notice, through amendment to the EAR published in the Federal Register, or through a separate notice published in the Federal Register, that a license is required for specific exports, reexports, or transfers (in-country) of any item because there is an unacceptable risk of use in or diversion to a `military end use' or `military end user' in Burma, China, Russia, or Venezuela. Under § 744.21(b)(1) of the EAR, BIS may identify entities subject to this additional prohibition under paragraph (b) that have been determined by the ERC to be a `military end user' pursuant to § 744.21. These entities will be added to supplement no. 7 to part 744 (`Military End-User' (MEU) List) in Federal Register notices published by BIS.

This rule implements the decision of the ERC to add one entity to the MEU List. This entity, the Moscow Institute of Physics and Technology, will be listed on the MEU List under the destination of Russia. The ERC made the decision to add this entity under the standard set forth in § 744.21 of the EAR, including the criteria for what constitutes a `military end use' under paragraph (f) and `military end user' under paragraph (g). Specifically, the ERC determined to add the entity on the basis of its production of military end-use products for a military end-user.

The license requirement for this entity applies to the export, reexport, or transfer (in-country) of any item subject to the EAR listed in supplement no. 2 to part 744. For this entity, BIS imposes a license review policy of a presumption of denial as set forth in § 744.21(e) of the EAR.

No license exceptions apart from License Exception GOV (items authorized under § 740.11(b)(2)(i) and (ii) of the EAR) are available for exports, reexports, or transfers (in-country) to listed entities on the MEU List for items specified in supplement no. 2 to part 744.

The acronym “a.k.a.,” which is an abbreviation of “also known as,” is used in entries on the MEU List to identify aliases, thereby assisting exporters, reexporters, and transferors in identifying entities on the MEU List.

For the reasons described above, this rule adds the following one entity to the MEU List:

• Moscow Institute of Physics and Technology.

Shipments of items removed from eligibility for a License Exception or export, reexport, or transfer (in-country) without a license (NLR) as a result of this regulatory action that were en route aboard a carrier to a port of export, reexport, or transfer (in-country), on November 26, 2021, pursuant to actual orders for export, reexport, or transfer (in-country) to or within a foreign destination, may proceed to that destination under the previous eligibility for a License Exception or export, reexport, or transfer (in-country) without a license (NLR).

On August 13, 2018, the President signed into law the John S. McCain National Defense Authorization Act for Fiscal Year 2019, which included the Export Control Reform Act of 2018 (ECRA) (50 U.S.C. 4801-4852). ECRA provides the legal basis for BIS's principal authorities and serves as the authority under which BIS issues this rule.

1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This final rule has been designated to be not significant for purposes of Executive Order 12866.

2. Notwithstanding any other provision of law, no person is required to respond to or be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This regulation involves collections previously approved by OMB under control number 0694-0088, Simplified Network Application Processing System, which includes, among other things, license applications, and carries a burden estimate of 29.6 minutes for a manual or electronic submission. Total burden hours associated with the PRA and OMB control number 0694-0088 are not expected to increase as a result of this rule.

3. This rule does not contain policies with federalism implications as that term is defined in Executive Order 13132.

4. Pursuant to section 1762 of ECRA ( see 50 U.S.C. 4821), this action is exempt from the Administrative Procedure Act (5 U.S.C. 553) requirements for notice of proposed rulemaking, opportunity for public participation, and delay in effective date.

5. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., are not applicable. Accordingly, no regulatory flexibility analysis is required and none has been prepared.

Accordingly, part 744 of the Export Administration Regulations (15 CFR parts 730-774) is amended as follows:

This document and additional information concerning OFAC are available on OFAC's website: www.treasury.gov/ofac.

On April 5, 2005, OFAC issued the Syrian Sanctions Regulations, 31 CFR part 542 (70 FR 17201, April 5, 2005) (“the Regulations”), to implement Executive Order (E.O.) 13338 of May 11, 2004, “Blocking Property of Certain Persons and Prohibiting the Export of Certain Goods to Syria” (69 FR 26751, May 13, 2004). OFAC thereafter amended the Regulations on May 2, 2014 (79 FR 25414, May 2, 2014) to implement six additional Executive orders related to Syria.

OFAC, in consultation with the State Department, is amending the Regulations to expand the existing general license at § 542.516 to authorize NGOs to engage in certain assistance-related investment activities in support of certain not-for-profit activities in Syria, including (i) new investment in Syria that would be prohibited by § 542.206; (ii) additional dealings with a limited subset of the Government of Syria as defined in § 542.305(a) that would be prohibited by § 542.201(a)(1); and (iii) the purchase of refined petroleum products of Syrian origin that would be prohibited by § 542.209. Consistent with the Caesar Syria Civilian Protection Act of 2019 (Pub. L. 116-92, Div. F, Title LXXIV, 133 Stat. 2290, 22 U.S.C. 8791 note) (“the Caesar Act”), Section 7425(b), OFAC is also amending the general license at § 542.516 to reflect that it does not apply to any foreign person that has been designated as a foreign terrorist organization under section 219 of the Immigration and Nationality Act (8 U.S.C. 1189), or otherwise designated as a terrorist organization by the Secretary of State, in consultation with or upon the request of the Attorney General or the Secretary of Homeland Security. Finally, OFAC is adding the Caesar Act to the authority citation of 31 CFR part 542.

Because the amendment of the Regulations involves a foreign affairs function, the provisions of E.O. 12866 of September 30, 1993, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), and the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, opportunity for public participation, and delay in effective date are inapplicable. Because no notice of proposed rulemaking is required for this rule, the Regulatory Flexibility Act (5 U.S.C. 601-612) does not apply.

The collections of information related to the Regulations are contained in 31 CFR part 501 (the “Reporting, Procedures and Penalties Regulations”). Pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), those collections of information have been approved by the Office of Management and Budget under control number 1505-0164. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number.

For the reasons set forth in the preamble, OFAC amends 31 CFR part 542 as follows:

The Coast Guard will enforce the special local regulation in 33 CFR 100.1101, Table 1 to § 100.1101, Item No. 6, from 5:30 p.m. through 8:30 p.m. on December 11, 2021, for Mission Bay Parade of Lights in Mission Bay, San Diego, CA. This action is being taken to provide for the safety of life on the navigable waterway during the boat parade. Our regulation for recurring marine events in the San Diego Captain of the Port Zone, § 100.1101, Table 1 to § 100.1101, Item No. 6, specifies the location of the regulated area for the Mission Bay Parade of Lights, which encompasses portions of Mission Bay. Under the provisions of § 100.1101, persons and vessels are prohibited from entering into, transiting through, or anchoring within this regulated area unless authorized by the Captain of the Port, or his designated representative. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.

In addition to this document in the Federal Register , the Coast Guard will provide the maritime community with advance notification of this enforcement period via the Local Notice to Mariners and marine information broadcasts.

The Coast Guard will enforce the special local regulations in 33 CFR 100.1101 for the San Diego Parade of Lights in San Diego Bay, CA, in 33 CFR 100.1101, Table 1, Item 5 of that section from 5:30 p.m. until 9:30 p.m. on December 12, 2021, and December 19, 2021. This enforcement action is being taken to provide for the safety of life on navigable waterways during the event. The Coast Guard's regulation for recurring marine events in the San Diego Captain of the Port Zone identifies the regulated entities and area for this event. During the enforcement periods and under the provisions of 33 CFR 100.1101, persons and vessels are prohibited from anchoring, blocking, loitering, or impeding within this regulated area, unless authorized by the Captain of the Port, or his designated representative. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.

In addition to this document in the Federal Register , the Coast Guard will provide the maritime community with advance notification of this enforcement period via the Local Notice to Mariners, marine information broadcasts, and local advertising by the event sponsor.

If the Captain of the Port Sector San Diego or his designated representative determines that the regulated area need not be enforced for the full duration stated on this document, he or she may use a Broadcast Notice to Mariners or other communications coordinated with the event sponsor to grant general permission to enter the regulated area.

The Coast Guard will enforce the safety zone regulation for holiday fireworks at The Wharf DC from 7:30 p.m. to 9 p.m. on December 4, 2021. This action is being taken to provide for the safety of life on navigable waterways during this event. Our regulation for Fireworks Displays within the Fifth Coast Guard District, § 165.506, specifies the location of the safety zone for the fireworks show which encompasses portions of the Washington Channel in the Upper Potomac River. During the enforcement period, as reflected in § 165.506(d), if you are the operator of a vessel in the safety zone you must comply with directions from the Patrol Commander or any Official Patrol displaying a Coast Guard ensign.

In addition to this notification of enforcement in the Federal Register , the Coast Guard plans to provide notification of this enforcement period via the Local Notice to Mariners and marine information broadcasts.

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. Immediate action is needed to protect persons and property from the potential safety hazards associated with rock placement operations. The NPRM process would delay the establishment of the safety zone until after the date of the event and compromise public safety. We must establish this temporary safety zone immediately and lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be contrary to the public interest because immediate action is needed to respond to the potential safety hazards associated with rock placement operations in the vicinity of Waxhaw, MS, starting December 1, 2021.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port (COTP) Sector Lower Mississippi River (LMR) has determined that potential hazards associated with rock placement operations between Mile Marker (MM) 595 and 597, scheduled to start on December 1, 2021, will be a safety concern for all persons and vessels on the LMR between MM 595 and MM 597 through January 1, 2022. This rule is needed to protect persons, property, infrastructure, and the marine environment in all waters of the LMR within the safety zone while rock placement operations are being conducted.

This rule establishes a temporary safety zone from December 1, 2021, through January 1, 2022. The safety zone will cover all navigable waters of the LMR from MM 595 to MM 597. The duration of this safety zone is intended to ensure the safety of waterway users on these navigable waters during rock placement operations.

Entry of persons or vessels into this safety zone is prohibited unless authorized by the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard assigned to units under the operational control of USCG Sector Lower Mississippi River. Persons or vessels seeking to enter the safety zones must request permission from the COTP or a designated representative on VHF-FM channel 16 or by telephone at 314-269-2332. If permission is granted, all persons and vessels shall comply with the instructions of the COTP or designated representative. The COTP or a designated representative will inform the public of the enforcement times and date for this safety zone through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and/or Marine Safety Information Bulletins (MSIBs), as appropriate.

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

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the size, location, and duration of the safety zone. This safety zone will temporarily restrict navigation on the LMR from MM 595 through MM 597, from December 1, 2021, through January 1, 2022. Moreover, The Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the safety zone, and the rule allows vessels to seek permission to enter the zone.

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

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

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. It is categorically excluded from further review under paragraph L60 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A record of environmental consideration is not needed but will be included into the docket if it becomes necessary.

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

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

The satellite carrier compulsory license establishes a statutory copyright licensing scheme for the distant retransmission of television programming by satellite carriers. 17 U.S.C. 119. Congress created the license in 1988 and reauthorized the license for additional five-year periods until 2019 when it made the license permanent. 1

On August 31, 2010, the Copyright Royalty Judges (Judges) adopted rates for the section 119 compulsory license for the 2010-2014 term. See 75 FR 53198. The rates were proposed by Copyright Owners and Satellite Carriers  2 and were unopposed. Id. Section 119(c)(2) of the Copyright Act provides that, effective January 1 of each year, the Judges shall adjust the royalty fee payable under Section 119(b)(1)(B) “to reflect any changes occurring in the cost of living as determined by the most recent Consumer Price Index (for all consumers and for all items) [CPI-U] published by the Secretary of Labor before December 1 of the preceding year.” Section 119 also requires that “[n]otification of the adjusted fees shall be published in the Federal Register at least 25 days before January 1.” 17 U.S.C. 119(c)(2).

The change in the cost of living as determined by the CPI-U during the period from the most recent index published before December 1, 2020, to the most recent index published before December 1, 2021, is 6.2%. 3 Application of the 6.2% COLA to the current rate for the secondary transmission of broadcast stations by satellite carriers for private home viewing—30 cents per subscriber per month—results in a rate of 32 cents per subscriber per month (rounded to the nearest cent). See 37 CFR 386.2(b)(1). Application of the 6.2% COLA to the current rate for viewing in commercial establishments—61 cents per subscriber per month—results in a rate of 65 cents per subscriber per month (rounded to the nearest cent). See 37 CFR 386.2(b)(2).

In consideration of the foregoing, the Judges amend part 386 of title 37 of the Code of Federal Regulations as follows:

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

On July 22, 2021, the EPA proposed to approve in part and disapprove in part portions of SIP revisions submitted by the California Air Resources Board (CARB) to meet CAA requirements for the 1997 annual PM 2.5 NAAQS in the San Joaquin Valley PM 2.5 nonattainment area. 1 The SIP revisions on which we proposed action are those portions of the “2018 Plan for the 1997, 2006, and 2012 PM 2.5 Standards” (“2018 PM 2.5 Plan”)  2 and the “San Joaquin Valley Supplement to the 2016 State Strategy for the State Implementation Plan” (“Valley State SIP Strategy”)  3 that pertain to the 1997 annual PM 2.5 NAAQS. CARB submitted the 2018 PM 2.5 Plan and Valley State SIP Strategy to the EPA as a revision to the California SIP on May 10, 2019. We refer to the portions of these two SIP submissions that pertain to the 1997 annual PM 2.5 NAAQS collectively as the “SJV PM 2.5 Plan” or “Plan.” The SJV PM 2.5 Plan addresses the Serious area and CAA section 189(d) attainment plan requirements for the 1997 annual PM 2.5 NAAQS in the San Joaquin Valley, including the State's demonstration that the area would attain the 1997 annual PM 2.5 NAAQS by December 31, 2020.

The EPA proposed to approve the 2013 base year emissions inventories in the SJV PM 2.5 Plan and proposed to disapprove the attainment demonstration and related elements, including the comprehensive precursor demonstration, five percent annual emissions reductions demonstration, BACM demonstration, RFP demonstration, quantitative milestone demonstration, motor vehicle emissions budgets, and contingency measures. The EPA proposed to disapprove these elements because the San Joaquin Valley area did not attain by the State's projected attainment date of December 31, 2020. 4

The EPA also proposed action on amendments to the local air district's SIP-approved residential wood-burning rule, the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD or “District”) Rule 4901, “Wood Burning Fireplaces and Wood Burning Heaters” (“Rule 4901”), submitted by the State to the EPA on July 19, 2019. These amendments include a contingency measure in section 5.7.3 of the amended rule that the State submitted to address contingency measure requirements for the 1997 annual PM 2.5 NAAQS. The EPA proposed to disapprove, and to remove from the California SIP, the contingency provision of Rule 4901 ( i.e., section 5.7.3) because this provision does not satisfy CAA requirements for contingency measures and is severable from the remainder of Rule 4901. Our disapproval of section 5.7.3 of Rule 4901 as a contingency measure for the 1997 annual PM 2.5 NAAQS, and our removal of this provision from the SIP, has no effect on our prior approval of Rule 4901 for purposes of meeting the BACM and most stringent measures requirements for the 2006 PM 2.5 NAAQS in the San Joaquin Valley, 5 which remains in effect for all but section 5.7.3 of Rule 4901.

The EPA's proposed action provided a 30-day public comment period that ended on August 23, 2021. We received four sets of comments, including two comment submissions from private citizens, 6 one comment letter from the SJVUAPCD, 7 and one comment letter from a coalition of environmental and community organizations (collectively referred to herein as “Earthjustice”). 8 All of the comments are included in the docket for this action. The comment submissions from private citizens generally supported our proposal to disapprove the contingency measures element of the SJV PM 2.5 Plan. The supportive portions of those comments do not require a response. We respond to the remainder of the comments received on our July 22, 2021 proposed rule in this notice.

Comment A.1: SJVUAPCD states that it supports the EPA's proposal to approve the 2013 base year emissions inventories but is concerned about the proposed disapproval of the attainment demonstration and related elements. The District notes that it adopted the SJV PM 2.5 Plan on November 15, 2018, and that CARB adopted the plan on January 24, 2019, and states that it is unfortunate that CARB did not submit the plan to the EPA until May 10, 2019. The District also notes that the EPA did not take action to approve or disapprove the Plan by November 10, 2020, as required by statute.

Response A.1: We acknowledge that the EPA did not take action to approve or disapprove the SJV PM 2.5 Plan by November 10, 2020, as required by the Act. With this final action, we are discharging the EPA's statutory obligation under CAA section 110(k)(2) to act on the SIP submission.

Comment A.2: SJVUAPCD states that “[i]t is absurd and inequitable to disapprove a plan because monitoring data that was unavailable when the plan was completed now contradicts the modeling in the plan.” In support of its argument, the commenter quotes from the D.C. Circuit Court of Appeals' decision in EME Homer City Generation, L.P. v. EPA, 795 F.3d 118 (D.C. Cir. 2015):

Response A.2: We disagree with the commenter's claim that it is absurd and inequitable to disapprove the SJV PM 2.5 Plan based on ambient air quality monitoring data that contradicts the modeling in the plan. Section 189(b) of the CAA requires that a state with a Serious PM 2.5 nonattainment area submit, among other things, a demonstration that the plan “provides for attainment of the [PM 2.5 NAAQS] by the applicable attainment date,” and section 189(d) similarly requires that a state with a Serious PM 2.5 nonattainment area that fails to attain by the applicable attainment date submit plan revisions that, among other things, “provide for attainment of the [PM 2.5 NAAQS].” Nothing in the CAA or in the EPA's implementing regulations precludes the EPA's consideration of ambient air monitoring data in determining whether a submitted plan satisfies these statutory requirements. The EPA's longstanding guidance on modeled attainment demonstrations highlights the importance of considering recent design values ( i.e., ambient air quality data) in selecting a base modeling year and projecting future changes in emissions and ambient concentrations. 9 Consistent with this guidance, the EPA routinely considers ambient air quality data during the model performance evaluation process that it conducts to determine whether a state's air quality model provides reliable predictions of future pollutant concentrations. 10 The commenter provides no statutory or regulatory support for a claim that the EPA cannot consider available ambient air quality data as part of its review of a submitted attainment demonstration to determine whether it “provides for” attainment of the NAAQS by the applicable attainment date.

Generally, an attainment demonstration is a predictive tool for assessing air quality at a future time, and as the D.C. Circuit stated in EME Homer City Generation, the possibility of discrepancies between predictions and the real world is “inherent in the enterprise of prediction.”  11 In this case, however, CARB submitted the attainment demonstration for the 1997 annual PM 2.5 NAAQS less than 20 months before the State's projected attainment date ( i.e., December 31, 2020), 12 and the EPA's action on the SJV PM 2.5 Plan is occurring at a time when that attainment date is no longer a projected date because the date has passed. Thus, our evaluation of the attainment demonstration is no longer based on “predictions.” Complete, quality-assured, and certified ambient air quality data available to the EPA at this time clearly indicate that the SJV PM 2.5 Plan failed to “provide for” attainment of the 1997 annual PM 2.5 NAAQS by the State's identified attainment date, December 31, 2020. In this context, it is reasonable for the EPA to take these data into account and, on that basis, to disapprove the attainment demonstration and related elements of the SJV PM 2.5 Plan for failure to “provide for” attainment of the 1997 annual PM 2.5 NAAQS by the identified attainment date.

Comment A.3: The commenter asserts that “[t]imely review of the Plan by EPA under the timelines required per statute would have negated the complications cited by EPA in their proposed disapproval.” The commenter acknowledges that, according to the Ninth Circuit Court of Appeals' decision in Sierra Club v. EPA, 671 F.3d 955 (9th Cir. 2012), the EPA must properly evaluate new information that indicates that a SIP awaiting approval is inaccurate or not current and “may not simply ignore it without reasoned explanation of its choice.”  13 However, the commenter claims that “at issue in this Sierra Club case was EPA's 2010 approval of a 2004 plan without consideration of emissions inventory data that became available in 2006” and that “[t]hese timeframes significantly surpass the timeframe at issue now with the District's 2018 PM 2.5 Plan (adopted in late 2018, demonstrating attainment in 2020, and subject to EPA action in 2021).” The commenter also notes that the Ninth Circuit in Sierra Club did not opine on the Petitioners' argument that the EPA improperly approved the plan in 2010 knowing that attainment by the 2010 attainment deadline was impossible.

Response A.3 : As discussed in Response A.1, we acknowledge that the EPA did not act on the SJV PM 2.5 Plan within the statutory timeframe. We note that the EPA's delayed action on the SJV PM 2.5 Plan was due, in part, to the State's late submission of several overdue attainment plans for multiple PM 2.5 NAAQS for the San Joaquin Valley  14 in May 2019. Notwithstanding the belated submission of these attainment plans, the EPA has since taken proposed or final action on each required plan. 15 We are now discharging our statutory obligation under CAA section 110(k)(2) to act on the SJV PM 2.5 Plan.

The commenter suggests that Sierra Club does not support the EPA's rationale for disapproval of the SJV PM 2.5 Plan because the period between the State's submission of, and the EPA's action on, the SJV PM 2.5 Plan (approximately two and a half years, from May 2019 to November 2021) is shorter than the period between the State's submission of, and the EPA's action on, the ozone plan at issue in Sierra Club (over five years, from November 2004 to March 2010). 16 This suggestion, however, reflects a misconstruction of the court's holding in this case. In Sierra Club, the Ninth Circuit remanded the EPA's March 2010 approval of an ozone attainment plan for the San Joaquin Valley submitted in 2004, holding that the EPA's failure to consider new emissions data that the State had submitted in 2007 as part of a separate ozone plan rendered the EPA's action arbitrary and capricious under the Administrative Procedure Act. 17 Although the court noted the length of the EPA's delay in acting on the 2004 plan submission after updated emissions data had become available, the decision ultimately rested on the unreasonableness of the EPA's failure to address the new emissions data, not on the specific number of years that had passed since the State submitted the plan. 18 The court found the EPA's action arbitrary and capricious because of its “reliance on old data without meaningful comment on the significance of more current compiled data” and concluded that “it was unreasonable for EPA summarily to rely on the point of view taken [in longstanding policy] without advancing an explanation for its action based on `the facts found and the choice made.' ”  19 Contrary to the commenter's characterization of Sierra Club, the EPA interprets that decision to stand for the proposition that it would be inappropriate for the EPA to ignore monitoring data that clearly establish, as a factual matter, that the attainment demonstration failed to provide for attainment.

The EPA has reviewed complete, quality-assured, and certified ambient air quality data for the 2018-2020 period that establish that the San Joaquin Valley did not attain the 1997 annual PM 2.5 NAAQS by the December 31, 2020 attainment date identified in the SJV PM 2.5 Plan. 20 In light of these facts, we conclude that the SJV PM 2.5 Plan failed to provide for attainment of the 1997 annual PM 2.5 NAAQS as required by CAA sections 189(b) and 189(d).

The commenter fails to explain its statement that “[n]otably, in deciding the matter based on inventory data, the Sierra Club court did not reach Petitioners' argument that EPA improperly approved the 2004 SIP submission in 2010 knowing that attainment by the 2010 deadline was impossible.” We decline to speculate on the meaning or relevance of the Ninth Circuit's decision not to reach this issue.

Comment A.4: SJVUAPCD's comment letter summarizes the regulatory consequences that would result from final disapproval of the SJV PM 2.5 Plan and states that these consequences could not have been foreseen or avoided in light of recent wildfires and data handling issues. The commenter asserts that a better path would have been for the EPA to “approve the plan as valid at the time of adoption by the District” and concurrently make a finding of failure to attain by the 2020 deadline, triggering a requirement for a revised plan. The commenter claims that this path would be “more consistent with the cooperative federalism embedded in the Clean Air Act” and would have avoided sanctions consequences outside of the District's direct control, although sanctions would still apply if the District were to fail to submit a revised plan on time.

Response A.4 : We disagree with the commenter's claim that the EPA could have proposed to approve the SJV PM 2.5 Plan for the 1997 annual PM 2.5 NAAQS as “valid at the time of adoption by the District.” As discussed in our proposed rule and in Response A.2, complete, quality-assured, and certified ambient air monitoring data for the 2018-2020 period establish that the San Joaquin Valley did not attain by the December 31, 2020 attainment date identified by the State in the SJV PM 2.5 Plan. We are, therefore, disapproving the SJV PM 2.5 Plan for failure to provide for attainment as required by the CAA.

Comment A.5 : SJVUAPCD states that the San Joaquin Valley did not attain by the December 31, 2020 attainment date due to wildfires and data handling issues that were outside of the District's control. The commenter concludes that after accounting for wildfire-related exceptional events, the San Joaquin Valley is attaining the 1997 24-hour PM 2.5 NAAQS and that all areas except for Bakersfield-Planz are attaining the 1997 annual PM 2.5 NAAQS. The commenter attributes the failure to attain at the Bakersfield-Planz site to data handling issues at the CARB-operated monitor that were outside of the District's control.

The commenter states that the District and CARB have drafted a SIP revision for the 1997 annual PM 2.5 NAAQS with a December 31, 2023 attainment date, and notes that the District Governing Board adopted the revision on August 19, 2021, and that CARB intends to approve the revision in September 2021. The commenter states that it hopes the EPA will approve the plan revision quickly to avoid a similar situation as the current one.

Response A.5 : We appreciate the commenter's perspective on the San Joaquin Valley's air quality challenges and information about recent steps taken by the State and District to develop a revised plan. Comments regarding the revised plan are, however, outside the scope of this rulemaking.

Comment A.6 : SJVUAPCD requests that the EPA clearly articulate in the final action on the SJV PM 2.5 Plan for 1997 annual PM 2.5 NAAQS that development, review, and approval of new contingency measures for those NAAQS are governed by a timeline separate from the elements included in the SIP revision that the District Governing Board adopted on August 19, 2021. The commenter states that the District looks forward to working with CARB and the EPA to address the contingency measure requirements.

Response A.6 : There is no separate timeline associated with the requirement for the contingency measure element, as the commenter suggests. As discussed in section III of this notice, as a result of this final action, California will be required to develop and submit a revised plan for the San Joaquin Valley that satisfies the CAA's Serious area and section 189(d) requirements, including the requirement for contingency measures, for the 1997 annual PM 2.5 NAAQS. Section III of this final rule discusses the timeline for application of mandatory offset and highway sanctions as a result of this final disapproval.

Comment A.7 : SJVUAPCD asserts that the federal government has not done enough to achieve reductions in emissions from mobile sources and that this has resulted in “disproportionate pressure on the District and CARB to continue reduc[ing] emissions to make up the shortfall, demonstrate attainment, and satisfy contingency requirements.”

Response A.7 : These comments do not identify a specific issue that is relevant to the EPA's action on the SJV PM 2.5 Plan for the 1997 annual PM 2.5 NAAQS.

Comment A.8 : SJVUAPCD asserts that the SJV PM 2.5 Plan for the 1997 NAAQS is fully approvable even though the San Joaquin Valley did not attain by the December 31, 2020 attainment date.

Response A.8 : We disagree with these comments. See Response A.2.

Comment B.1 : Earthjustice asserts that the EPA's proposed approval of the 2013 base year emissions inventories is arbitrary and capricious. Specifically, Earthjustice argues that because the inventories were developed using a mobile source emissions model ( i.e., EMFAC2014) that has since been updated, the 2013 baseline emissions inventories do not reflect the best information available. Earthjustice claims that “CARB and the District know the emissions assumptions included in the 2013 baseline inventory do not reflect the best information because they have a more current, more accurate EMFAC2017 model that undermines those EMFAC2014 results.” The commenter states that the EPA has not offered an analysis to support a conclusion that only the modeling was incorrect, and not the baseline emissions inventory inputs used in the modeling. Earthjustice further asserts that the inventories are inextricably tied to the attainment demonstration and related elements, and that because the area did not attain by the attainment date in the Plan, the EPA must also disapprove the inventories. The commenter asserts that there is no reason for the EPA to approve the emissions inventories if the remainder of the plan is disapproved.

Finally, Earthjustice states that the State must develop a new plan and that the new plan cannot rely on the 2013 base year emissions inventories that the EPA has proposed to approve, but rather the State must develop the new plan using the updated mobile source emissions model EMFAC2017. Earthjustice also claims that the State must use EMFAC2017 in any new regional and hot-spot analyses because the transportation conformity grace periods have expired.

Response B.1 : The EPA disagrees with Earthjustice's claim that our approval of the 2013 base year inventories is arbitrary and capricious. We evaluated the emissions inventories in the SJV PM 2.5 Plan to determine if they satisfy CAA requirements as interpreted in the EPA's regulations at 40 CFR 51.1008 and in the preamble to the EPA's implementation rule for the PM 2.5 NAAQS (hereafter “PM 2.5 SIP Requirements Rule”). 21 As discussed in the proposal, we found that the State and District had used emissions inventory estimation methodologies consistent with the EPA's recommendations, and that the inventories in the SJV PM 2.5 Plan are comprehensive and based on the most current and accurate information available to the State and District when they were developing the Plan. 22 Based on these evaluations, we proposed to approve the 2013 base year emissions inventories in the SJV PM 2.5 Plan as meeting the requirements of CAA section 172(c)(3) and 40 CFR 51.1008.

CARB used its mobile source emissions model, EMFAC2014, to generate the on-road mobile source inventories in the SJV PM 2.5 Plan. The EPA approved EMFAC2014 for use in SIPs and conformity determinations on December 14, 2015. 23 At the time that the State and District were developing the SJV PM 2.5 Plan, EMFAC2014 was the most current mobile source model available for emissions inventory development purposes. CARB submitted the SJV PM 2.5 Plan to the EPA on May 10, 2019. On August 15, 2019, the EPA approved EMFAC2017, the latest revision to this mobile source emissions model. 24 We find that it would be unreasonable to require the State and District to revise the SJV PM 2.5 Plan because of an updated EMFAC model that the EPA approved several months after the State's submission of the Plan. The EPA has stated in longstanding policy that the CAA does not require states that have already submitted SIP submissions or will submit SIP submissions shortly after the release of a new mobile source model to revise these submissions simply because a new motor vehicle emissions model is available, as it would be unreasonable to require a state to revise such a submission after significant work had already occurred. 25

Nevertheless, the EPA has considered information regarding the differences between the EMFAC2014 and EMFAC2017 emissions estimates that has become available since our proposal. On November 8, 2021, CARB submitted a SIP revision to address the CAA requirements for the 1997 annual PM 2.5 NAAQS. 26 The submission included CARB's “Staff Report, Proposed SIP Revision for the 15 µg/m 3 Annual PM 2.5 Standard for the San Joaquin Valley” (“CARB Staff Report”), which includes a comparison of estimated annual NO X and PM 2.5 emissions in the San Joaquin Valley in the 2013 base year. 27 CARB determined that PM 2.5 emissions estimates for 2013 derived using EMFAC2017 are approximately six percent higher than estimates derived using EMFAC2014, and that NO X emissions estimates for 2013 derived using EMFAC2017 are seven percent lower than the emissions estimates derived using EMFAC2014. 28 CARB also concluded that the differences in 2013 base year emissions derived using EMFAC2014 and EMFAC2017 are not significant enough to affect the modeled attainment demonstration in the revised SIP submission. Thus, CARB's analyses support our conclusion that the 2013 base year emissions inventories in the SJV PM 2.5 Plan are comprehensive, accurate, and current, consistent with the requirements of CAA section 172(c)(3) and 40 CFR 51.1008.

The EPA also disagrees with the commenter's claim that the base year emissions inventories are “inextricably tied to the demonstration of attainment” and related plan elements and that disapproval of the attainment demonstration thus requires disapproval of the emissions inventories. Section 172(c)(3) of the CAA requires that plans for nonattainment areas include “a comprehensive, accurate, current inventory of actual emissions from all sources of the relevant pollutant or pollutants in such area, including such periodic revisions as the Administrator may determine necessary to assure that the requirements of [part D of title I of the CAA] are met.” Nothing in the text of section 172(c)(3) indicates that the EPA cannot evaluate the adequacy of the emissions inventories independent of other requirements such as RFP or attainment.

As the EPA explained in the preamble to the EPA's PM 2.5 SIP Requirements Rule, the base year emissions inventory requirement in CAA section 172(c)(3) is a requirement independent of the attainment demonstration and related plan elements and, therefore, is not suspended by a determination by the EPA that the area has attained the NAAQS ( i.e., a “clean data determination”). 29 For over 25 years, the EPA has maintained its interpretation in the “Clean Data Policy,” now codified at 40 CFR 51.1015 for PM 2.5 purposes, that only those plan requirements that are linked by their terms to the CAA's requirements for attainment and RFP ( e.g., the attainment demonstration, RFP, and contingency measures) are suspended upon a determination by the EPA that the area is attaining the relevant NAAQS. 30 Consistent with this longstanding interpretation, 40 CFR 51.1015 excludes the base year emissions inventory from the attainment-related requirements that are suspended upon a clean data determination for the PM 2.5 NAAQS. 31 The commenter provides no statutory support for a claim that the requirement for emissions inventories in CAA section 172(c)(3) is inextricably tied to the attainment demonstration and related plan elements. Put simply, an emissions inventory may still be adequate, even if other elements ( e.g., a failure to evaluate and impose control measures on sources that would result in attainment) of an attainment plan are not.

We also disagree with the commenter's assertion that there is no reason for the EPA to approve the emissions inventories if the remainder of the plan is being disapproved. Under CAA section 110(k)(3), the EPA may approve any portion of a SIP submission that meets the requirements of the Act. For the reasons provided in the proposal, the EPA finds that the 2013 base year emissions inventories in the SJV PM 2.5 Plan are consistent with the requirements of the CAA, as interpreted in the EPA's regulations and guidance.

Earthjustice's claim that in a new attainment plan for the 1997 annual PM 2.5 NAAQS for the San Joaquin Valley the State “cannot rely on the 2013 base year inventory that EPA proposes to approve” is outside of the scope of this rulemaking. The EPA will review the revised attainment plan submitted by the State on November 8, 2021, for compliance with the requirements of the CAA and the EPA's regulations and will determine, following notice-and-comment rulemaking, whether the submission satisfies all applicable CAA requirements. We encourage Earthjustice to resubmit these comments as appropriate during such a future rulemaking.

Finally, Earthjustice is correct that because the transportation conformity grace periods for use of EMFAC2014 have expired, the State must use EMFAC2017 in any new regional emissions analyses that begin on or after August 16, 2021, 32 unless and until the EPA approves a new version of EMFAC. This means that all new hydrocarbon, NO X , PM 10 , PM 2.5 , and CO regional conformity analyses started after the end of the two-year grace period must be based on EMFAC2017, even if the SIP is based on an earlier version of the EMFAC model.

Comment B.2 : Earthjustice states that it agrees with the EPA's proposal to disapprove the precursor demonstration in the SJV PM 2.5 Plan for the 1997 annual PM 2.5 NAAQS but asserts that the EPA's reasoning necessitates certain other findings by the EPA. Earthjustice describes the EPA's reasoning in the proposed rule  33 as tying the precursor demonstration to the attainment demonstration and asserts that if the attainment demonstration has proven to be wrong, then the precursor demonstration must necessarily also be wrong, both for the 1997 annual PM 2.5 NAAQS and for the 1997 24-hour PM 2.5 NAAQS. Earthjustice states that the “defects” in the precursor demonstration for the 1997 annual PM 2.5 NAAQS also “infect the precursor demonstration for the 1997 24-hour standard plan” and that the EPA should disapprove that demonstration as well “to make it clear to the District and CARB that a new analysis for both standards will be required.” Earthjustice also reiterates its concerns with the precursor demonstration that it raised previously in comments on the EPA's approval of the plan for the 2006 24-hour PM 2.5 NAAQS, such as the failure to properly account for NO X emissions from soil and the refusal to consider the cost-effectiveness of ammonia controls as compared to NO X controls. The commenter asserts that should the EPA decide to approve the precursor demonstration despite the failure of the attainment demonstration, the EPA must issue a new proposal that explains the EPA's rationale and offers the public the opportunity to review and comment.

Response B.2 : The EPA acknowledges Earthjustice's support for disapproving the precursor demonstration but does not agree with the commenter's characterization of the EPA's rationale for the disapproval. As we explained in the proposed rule, the EPA proposed to disapprove the attainment demonstration and related elements in the SJV PM 2.5 Plan for the 1997 annual PM 2.5 NAAQS based on ambient monitoring data that show that the Plan was insufficient to achieve attainment of the 1997 annual PM 2.5 NAAQS by December 31, 2020, the State's projected attainment date. 34 We further explained that “[g]iven that we are proposing to disapprove the attainment demonstration, and given that the precursor demonstration for the 1997 annual PM 2.5 NAAQS largely relies on the technical analyses and assumptions that provide the basis for the attainment demonstration, we are also proposing to disapprove the precursor demonstration in the SJV PM 2.5 Plan for the 1997 annual PM 2.5 NAAQS.”  35

The EPA is not taking the position that disapproval of an attainment demonstration necessarily renders the associated precursor demonstration deficient in all cases. Nothing in the CAA, the PM 2.5 SIP Requirements Rule, 36 or in the EPA's guidance on PM 2.5 precursor demonstrations (hereafter “PM 2.5 Precursor Guidance”)  37 indicates that approval of a precursor demonstration is necessarily contingent upon approval of the associated attainment demonstration. Where the modeled attainment demonstration and the precursor demonstration are based on the same modeling platform, the EPA may find that fundamental flaws in that modeling platform render both demonstrations deficient. But the EPA evaluates each demonstration on its own merits, and in some cases the EPA may find it appropriate to approve a precursor demonstration even if the attainment demonstration with which it is associated is deficient.

In this case, we find that the modeling platform used in the SJV PM 2.5 Plan for the 1997 annual PM 2.5 NAAQS is adequate to support both the attainment demonstration and the precursor demonstration for the 1997 annual PM 2.5 NAAQS. Although we are disapproving the attainment demonstration for the 1997 annual PM 2.5 NAAQS based on ambient air quality monitoring data that show that the area failed to attain these NAAQS by the end of 2020, our disapproval does not rest on a conclusion that the modeling platform is fundamentally flawed. In our discussion about the modeling platform in the proposal, we stated that “[t]he magnitude and timing of predicted concentrations of total PM 2.5 [in the San Joaquin Valley] . . . generally match the occurrence of elevated PM 2.5 levels in the measured observations” and “[a] comparison to other recent modeling efforts shows good model performance on bias, error, and correlation with measurements, for total PM 2.5 and for most of its chemical components.”  38 The same modeling platform provides the basis for California's Serious area plan for attainment of the 2006 PM 2.5 NAAQS in the San Joaquin Valley that the EPA approved on July 22, 2020, 39 the Moderate area plan for the 2012 annual PM 2.5 NAAQS in the San Joaquin Valley that the EPA proposed to approve on September 1, 2021, 40 and the Serious area and CAA section 189(d) plan for the 1997 24-hour PM 2.5 NAAQS in the San Joaquin Valley that the EPA proposed to approve on September 24, 2021. 41

We acknowledge that the modeling erroneously projected that the San Joaquin Valley would attain the 1997 annual PM 2.5 NAAQS by the end of 2020. There are a number of factors other than flaws in the modeling itself that may result in model predictions not matching monitored values, including meteorology in the attainment year that differs substantially from meteorology in the modeling platform base year, and actual emissions levels in the attainment year that differ substantially from projected emissions levels. The modeling platform uses 2013 as a base year, with emissions and meteorology from 2013 as inputs, and with performance validated against 2013 monitored concentrations. If the meteorological conditions in 2020 were more conducive to PM 2.5 formation than those in 2013, then the 2020 design value would be higher than predicted by the modeling with its 2013 base case, even if the model itself is performing well. Natural variability in meteorological conditions can cause model predictions based on one year to overestimate or underestimate concentrations for a different year. 42

Similarly, unpredictable emissions differences can lead to differences between modeled and observed concentrations. There were high particulate and precursor emissions in the years 2018 and 2020 from unexpected wildfires in the areas surrounding the San Joaquin Valley during the summer and fall months. Wildfires were not included in the State's modeling emissions inventory, but base period wildfire emissions can indirectly affect predicted future concentrations when they are estimated using Relative Response Factors (RRFs), as recommended in the EPA's “Modeling Guidance for Demonstrating Attainment of Air Quality Goals for Ozone, PM 2.5 , and Regional Haze” (“Modeling Guidance”). 43 We note that wildfires were much less prevalent during the 2010-2014 period that was used to estimate the base design value, 44 compared to the number and severity of wildfires in and around the San Joaquin Valley during the 2018-2020 period used to calculate the 2020 monitored design value. 45 While they likely were not the sole factor, the 2018-2020 wildfires may have contributed to the State's underestimated design value projection for 2020, even though the model was not deficient.

Finally, the State's technical findings in the precursor demonstration analysis support the EPA's disapproval of it for purposes of the 1997 annual PM 2.5 NAAQS. To support the precursor demonstration, the State used the modeling platform discussed above to assess the sensitivity of PM 2.5 concentrations to reductions in precursor concentrations. The State modeled precursor emissions reductions and compared the resulting changes in PM 2.5 concentrations to 0.2 micrograms per cubic meter (µg/m 3 ), the EPA's recommended contribution threshold for the annual PM 2.5 NAAQS. 46 The modeled PM 2.5 responses to a 30 percent ammonia emissions reduction for the 2013 base year ranged from 0.20 to 0.72 µg/m 3 , exceeding the 0.2 µg/m 3 contribution threshold at 14 of 15 monitoring sites. 47 For the 2020 future year, the modeled PM 2.5 responses to a 30 percent ammonia emissions reduction ranged from 0.12 to 0.42 µg/m 3 , exceeding the 0.2 µg/m 3 contribution threshold at 9 of 15 monitoring sites. For the 2024 future year, the response ranged from 0.08 to 0.26 µg/m 3 ; exceeding 0.2 µg/m 3 at two monitoring sites. 48

For the approval of the precursor demonstration for the 2006 24-hour NAAQS, 49 and for the proposed approvals of the precursor demonstration for the 1997 24-hour NAAQS 50 and the 2012 annual NAAQS, 51 the EPA partly relied on model estimates of ammonia sensitivity from the 2024 future year. There is evidence that NO X emissions reductions that are projected to occur by 2024 result in the modeling for 2024 being more representative of current ambient conditions, as reflected in monitoring studies of nitrate and ammonia. 52 For 2024, all monitoring sites were projected to have 24-hour PM 2.5 responses below the 1.5 µg/m 3 contribution threshold. In addition, the 24-hour modeled PM 2.5 responses are below the threshold at all but one site in 2020, and there were no monitored violations of the 1997 24-hour PM 2.5 NAAQS in 2020. Thus, the EPA concluded that ammonia is not contributing to PM 2.5 levels above the 1997 24-hour PM 2.5 NAAQS in the 2020 attainment year.

In contrast, for the 1997 annual PM 2.5 NAAQS, certified ambient air quality data show that the San Joaquin Valley recorded PM 2.5 levels exceeding the NAAQS in 2020, so the monitoring data alone do not support a conclusion that ammonia emissions do not contribute significantly to levels exceeding the NAAQS. Also, the modeling results indicate that annual average PM 2.5 concentrations are more sensitive than 24-hour average PM 2.5 concentrations to ammonia reductions. The evidence that modeling for 2024 is representative of current ambient conditions supports giving relatively less weight to the 2020 results. However, for the annual NAAQS there are 9 sites out of 15 above the contribution threshold in 2020, too many to discount. Furthermore, even the 2024 results show two sites above the contribution threshold. The combined results for 2020 and 2024 contradict a conclusion that ammonia emissions do not contribute significantly to PM 2.5 levels that exceed the 1997 annual PM 2.5 NAAQS in the San Joaquin Valley.

With respect to Earthjustice's claim that the “defects” in the precursor demonstration for the 1997 annual PM 2.5 NAAQS also necessitate disapproval of the precursor demonstration for the 1997 24-hour PM 2.5 NAAQS, we note that these comments are outside the scope of this rulemaking, as our action today pertains only to the Serious area and CAA section 189(d) plan for the 1997 annual PM 2.5 NAAQS. 53

With respect to Earthjustice's statement that it previously raised concerns about the precursor demonstration in comments on the EPA's separate approval of the attainment plan for the 2006 24-hour PM 2.5 NAAQS, e.g., concerning failure to account for NO X emissions from soil and to consider the cost-effectiveness of ammonia controls as compared to NO X controls, the EPA responded to those comments in the “Response to Comments Document for the EPA's Final Action on the San Joaquin Valley Serious Area Plan for the 2006 PM 2.5 NAAQS,” dated June 2020, which is available at https://www.regulations.gov under Docket ID No. EPA-R09-OAR-2019-0318 (see Response 6.P-1 and Response 6.Q).

Finally, we do not dispute the commenter's assertion that we could not approve the precursor demonstration without issuing a new proposal that explains our rationale and provides an opportunity for public comment.

Comment B.3: Earthjustice supports the EPA's proposal to disapprove the Plan's BACM demonstration. Earthjustice also states that, even if the EPA were to approve the precursor demonstration in the Plan, the EPA could not finalize an approval of the BACM demonstration without a new proposal, and that any action to approve the plan's BACM demonstration must provide an analysis of the issues pertaining to control measures that the commenter identified in prior comments submitted to the EPA and offer commenters the ability to review that analysis.

Response B.3: We are finalizing our proposal to disapprove both the precursor demonstration and the BACM demonstration in the SJV PM 2.5 Plan for the 1997 annual PM 2.5 NAAQS and, therefore, do not provide specific responses to these comments. When the EPA proposes to take action on a new or revised BACM demonstration submitted by the State to satisfy CAA requirements applicable to the San Joaquin Valley area for these NAAQS, the EPA will provide a full analysis to support its proposal and will provide a minimum 30-day period for public comments on that proposal, consistent with the requirements of the Administrative Procedure Act. 54

Comment B.4: Earthjustice states that it agrees with the EPA's proposal to disapprove the five percent annual emissions reduction demonstration, asserting that because the SJV PM 2.5 Plan “failed to show 5 percent reductions beyond the 2020 attainment date, and the area has still not attained, the 5 percent demonstration is deficient on its face.” The commenter further claims that the five percent annual reductions demonstration must be disapproved because it relies on a “flawed emission inventory built with an outdated EMFAC model.” The commenter requests clarification regarding the EPA's statement that greater than the required five percent annual emissions reductions have been achieved and removal of Table 3 in the proposal because the commenter asserts that the five percent requirement cannot be assessed without a “valid current and accurate inventory.”

Response B.4: We agree with the commenter that the EPA cannot approve the five percent annual emissions reduction demonstration in the SJV PM 2.5 Plan given that the Plan demonstrates reductions only through 2020, the area did not attain by 2020, and therefore the Plan does not meet the requirement to demonstrate five percent reductions per year until attainment. We are, therefore, disapproving the five percent emissions reduction demonstration in the Plan. However, we disagree with the commenter's claim that the EPA must also disapprove the five percent demonstration specifically “because it relies on a flawed emission inventory built with an outdated EMFAC model.” See Response B.1.

With respect to Earthjustice's assertion that Table 3 in our proposed rule should be removed, we note that this table simply summarizes the State's submission  55 and does not constitute an approval of the submitted five percent annual emissions reduction demonstration, in any respect. Earthjustice also requests that the EPA clarify its statement in the proposed rule that “NO X emissions reductions are greater than the required five percent per year.”  56 We explained in the proposed rule that “[t]he State's methodology for calculating the five percent emission reduction targets for the years 2017, 2018, 2019, and 2020 is consistent with CAA requirements as interpreted in the PM 2.5 SIP Requirements Rule, and the Plan shows that NO X emissions reductions from 2017 to 2020 are greater than the required five percent per year.”  57

We included these statements in the proposed rule to explain how we were evaluating the State's submitted five percent annual emissions reduction demonstration, and to distinguish those portions of the submitted analysis that appear to meet CAA requirements from those portions that do not. The State's identification of 2013 as the starting point for the calculation of the five percent reduction required under CAA section 189(d) is appropriate because 2013 is one of the three years for which the EPA evaluated monitored air quality data to determine that the San Joaquin Valley had failed to attain the 1997 PM 2.5 NAAQS  58 and, thus, may be treated as the “the most recent inventory” for this purpose. 59 The State's identification of 2017 as the first year during which the Plan must provide for the required five percent reduction from base year emissions levels is appropriate because the due date for the section 189(d) plan was December 31, 2016. 60 Thus, if the five percent annual reduction calculation is based on an approvable base year emissions inventory and the Plan provides for the calculated level of reduction each year beginning after the due date for the section 189(d) plan, the calculation itself is consistent with the EPA's interpretation of the section 189(d) requirements.

As we explained in the proposed rule, however, the Plan fails to satisfy CAA section 189(d) requirements because the December 31, 2020 attainment date identified in the Plan is not the “applicable attainment date,” and the Plan therefore does not provide annual reductions of at least five percent each year from the date of plan submission “until the applicable attainment date approved by the EPA.”  61 Because we are disapproving the five percent annual emissions reduction demonstration in the Plan, the State is required to submit a revised plan that satisfies the requirements of section 189(d). The EPA will evaluate any revised plan submitted by the State for compliance with the statutory and regulatory requirements and will provide the public an opportunity to comment on the EPA's proposed action on any such submission, consistent with the requirements of the Administrative Procedure Act. 62

Comment B.5: Earthjustice states that it agrees that the EPA cannot approve the modeling demonstration in the SJV PM 2.5 Plan because design values in the San Joaquin Valley in 2020 were above the NAAQS at half of the monitoring sites. The commenter notes that the EPA has not provided a full evaluation of the attainment demonstration and that if the EPA should change course and decide to approve the attainment demonstration, it must repropose the action and provide a full evaluation. Finally, referencing a previous comment letter submitted to the EPA, the commenter asserts that the State and District cannot claim to have met the statutory obligation to demonstrate attainment of the 1997 annual PM 2.5 NAAQS as expeditiously as practicable because the Plan does not meet the requirements for BACM and MSM.

Response B.5: We are finalizing our proposal to disapprove the attainment demonstration in the SJV PM 2.5 Plan for the 1997 annual PM 2.5 NAAQS and, therefore, do not provide specific responses to these comments. When the EPA proposes to take action on a new or revised attainment demonstration for the San Joaquin Valley area for these NAAQS, the EPA will provide a full analysis to support its proposal and will provide a minimum 30-day period for public comments on that proposal, consistent with the requirements of the Administrative Procedure Act. 63 We respond to Earthjustice's claim that the Plan fails to include BACM and MSM in Response B.3.

Comment B.6: Earthjustice supports the EPA's proposal to disapprove the RFP and quantitative milestone elements of the SJV PM 2.5 Plan based on the EPA's proposal to disapprove the attainment demonstration, stating that “if the plotted trajectories fail as an empirical fact to lead to attainment, they cannot reasonably be approved as meeting the Act's requirements.” Earthjustice asserts that the EPA must also disapprove the RFP and quantitative milestone demonstrations due to the absence of an approved precursor demonstration and because the base year emissions inventory was developed using models that are “known to be flawed.”

Response B.6: We agree with the commenter's claim that our disapproval of the attainment demonstration and precursor demonstration in the SJV PM 2.5 Plan for the 1997 annual PM 2.5 NAAQS necessitate disapproval of the RFP and quantitative milestone elements of the Plan for these NAAQS as well. In the absence of an approved precursor demonstration, the RFP and quantitative milestone demonstrations, which address only direct PM 2.5 and NO X emissions, are not approvable. However, as explained in Response B.1, we disagree with the commenter's claim that the EPA must disapprove the base year emissions inventories in the SJV PM 2.5 Plan because the State developed them using flawed models. Therefore, we disagree with the commenter's claim we must cite alleged flaws in the 2013 base year emissions inventories as an additional basis for disapproving the RFP and quantitative milestones.

Comment B.7: Earthjustice states that it agrees with the EPA's proposal to disapprove the contingency measure element of the SJV PM 2.5 Plan for the 1997 annual PM 2.5 NAAQS but asserts that there are additional fundamental flaws that the EPA did not identify in the proposal. The commenter claims that the contingency measures as submitted would not provide for one year's worth of emissions reductions, that quantification of the reductions needed to meet one year's worth of RFP is not possible in the absence of an approved attainment demonstration and accurate emissions inventory, and that the measures outlined in the plan cannot be implemented within 60 days of an EPA determination that the area failed to meet RFP or to attain by the attainment date. The commenter further asserts that the EPA should not approve a commitment to adopt additional measures or adopt a measure that consists only of enhanced enforcement as sufficient to meet contingency measure requirements. Earthjustice states that in this particular case, a commitment to enhance enforcement is “particularly egregious as a contingency measure because there is no assurance of actual emission reductions, no concrete means of enforcing th[e] commitment, and no way to suggest these emission reductions are surplus to the reductions provided by control measures already part of the attainment demonstration.”

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

Epidemiological studies have shown statistically significant correlations between elevated levels of PM 2.5 (particulate matter with a diameter of 2.5 microns or less) and premature mortality. Other important health effects associated with PM 2.5 exposure include aggravation of respiratory and cardiovascular disease, changes in lung function, and increased respiratory symptoms. Individuals particularly sensitive to PM 2.5 exposure include older adults, people with heart and lung disease, and children. 1 PM 2.5 can be emitted directly into the atmosphere as a solid or liquid particle (“primary PM 2.5 ” or “direct PM 2.5 ”) or can be formed in the atmosphere as a result of various chemical reactions among precursor pollutants such as nitrogen oxides (NO X ), sulfur oxides, volatile organic compounds, and ammonia (“secondary PM 2.5 ”). 2

The EPA first established annual and 24-hour NAAQS for PM 2.5 on July 18, 1997. 3 The annual standard was set at 15.0 micrograms per cubic meter (µg/m 3 ) based on a 3-year average of annual mean PM 2.5 concentrations, and the 24-hour (daily) standard was set at 65 µg/m 3 based on the 3-year average of the annual 98th percentile values of 24-hour PM 2.5 concentrations at each monitor within an area. We refer to these standards as the “1997 PM 2.5 NAAQS.” On October 17, 2006, the EPA revised the level of the 24-hour PM 2.5 NAAQS to 35 µg/m 3 based on a 3-year average of the annual 98th percentile values of 24-hour concentrations. 4 We refer to this standard as the “2006 PM 2.5 NAAQS.” On January 15, 2013, the EPA revised the annual standard to 12.0 µg/m 3 based on a 3-year average of annual mean PM 2.5 concentrations. 5 We refer to this standard as the “2012 PM 2.5 NAAQS.”

Following promulgation of a new or revised NAAQS, the EPA is required by CAA section 107(d) to designate areas throughout the nation as attaining or not attaining the NAAQS. On January 15, 2015, the EPA designated and classified the SJV as Moderate nonattainment for the 2012 PM 2.5 NAAQS. 6 With respect to the 1997 PM 2.5 NAAQS and the 2006 PM 2.5 NAAQS, the SJV is designated nonattainment and is classified as Serious. 7 The SJV PM 2.5 nonattainment area encompasses over 23,000 square miles and includes all or part of eight counties: San Joaquin, Stanislaus, Merced, Madera, Fresno, Tulare, Kings, and the valley portion of Kern. 8 The area is home to four million people and is the nation's leading agricultural region. Stretching over 250 miles from north to south and averaging 80 miles wide, it is partially enclosed by the Coast Mountain range to the west, the Tehachapi Mountains to the south, and the Sierra Nevada range to the east.

Under State law, the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD or “District”) has primary responsibility for developing plans to provide for attainment of the NAAQS in this area. The District works cooperatively with the California Air Resources Board (CARB) in preparing these plans. Authority for regulating sources under State jurisdiction in the SJV is split between the District, which has responsibility for regulating stationary and most area sources, and CARB, which has responsibility for regulating most mobile sources and some categories of consumer products. CARB is also responsible for adoption and submittal to the EPA of the California SIP, which includes, among other things, regional air quality plans. Under CAA section 110(k), the EPA is obligated to approve or disapprove SIPs and SIP revisions as meeting or failing to meet CAA requirements.

On September 1, 2021, we proposed to approve or disapprove all or portions of SIP revisions submitted by CARB to address CAA requirements for the PM 2.5 NAAQS in the SJV nonattainment area. 9 Herein, we refer to our proposed rule published on September 1, 2021, as the “proposed rule,” “proposal” or “proposed action.” On May 10, 2019, CARB made two SIP submissions intended to address the attainment plan requirements for areas designated as nonattainment for the 2012 PM 2.5 NAAQS. 10 First, the “2016 Moderate Area Plan for the 2012 PM 2.5 Standard” (“2016 PM 2.5 Plan”) addresses the Moderate area attainment plan requirements and includes a demonstration of impracticability of attaining the 2012 PM 2.5 NAAQS in the SJV by the latest permissible Moderate area attainment date of December 31, 2021. In our proposal, the EPA proposed action on all portions of the 2016 PM 2.5 Plan. Second, the “2018 Plan for the 1997, 2006, and 2012 PM 2.5 Standards” (“2018 PM 2.5 Plan”) addresses the Serious area attainment plan requirements for the 2012 PM 2.5 NAAQS, in anticipation of the reclassification of SJV from Moderate to Serious for that PM 2.5 NAAQS. The 2018 PM 2.5 Plan updates several elements in the 2016 PM 2.5 Plan, including the base year emissions inventory, plan precursor demonstration, controls analysis, reasonable further progress (RFP) and quantitative milestones, and motor vehicle emission budgets (MVEBs or “budgets”).

Additionally, the 2018 PM 2.5 Plan incorporates by reference the “San Joaquin Valley Supplement to the 2016 State Strategy for the State Implementation Plan” (“Valley State SIP Strategy”), a related plan adopted by CARB on October 25, 2018, and submitted to the EPA on May 10, 2019, with the 2018 PM 2.5 Plan. For the purposes of this action, the relevant portion of the Valley State SIP Strategy includes the control measure commitments associated with the quantitative milestones for 2019 and 2022. Lastly, with respect to applicable requirements for contingency measures for the 2012 PM 2.5 NAAQS and 2006 PM 2.5 NAAQS, we evaluated the contingency measure elements of the 2016 PM 2.5 Plan and 2018 PM 2.5 Plan as supplemented by the July 19, 2019 submittal of a SIP revision that includes a contingency provision (section 5.7.3) in the SJVUAPCD's rule (Rule 4901) limiting emissions from wood burning fireplaces, wood burning heaters, and outdoor wood burning devices.

In this document, the EPA is finalizing action on the 2016 PM 2.5 Plan and those portions of the 2018 PM 2.5 Plan that apply to the Moderate area plan requirements for the 2012 PM 2.5 NAAQS. However, the EPA is not, at this time, acting on those portions of the 2018 PM 2.5 Plan that are not relevant to our evaluation of compliance with Moderate area plan requirements for 2012 PM 2.5 NAAQS, such as the best available control measures (BACM) demonstration, control strategy commitments, attainment demonstration, RFP demonstration and quantitative milestones for later years, and MVEBs for later years. In our proposal, we also proposed action on the portion of the 2018 PM 2.5 Plan that addresses the contingency measure requirement for the 2006 PM 2.5 NAAQS, and we are taking final action on the contingency measure element for the 2006 PM 2.5 NAAQS in this document. For more information about these submittals, please see our proposed rule.

As part of our proposed action, we proposed to approve the following elements of the 2016 PM 2.5 Plan and 2018 PM 2.5 Plan as meeting the statutory and regulatory Moderate area requirements for the 2012 PM 2.5 NAAQS in the SJV nonattainment area: The 2013 base year emissions inventories in the 2016 PM 2.5 Plan, as revised in the 2018 PM 2.5 Plan; the reasonably available control measures (RACM)/reasonably available control technology demonstration and additional reasonable measures for all sources of direct PM 2.5 and NO X in the 2016 PM 2.5 Plan, as supplemented in the 2018 PM 2.5 Plan; the demonstration in the 2016 PM 2.5 Plan that attainment by the Moderate area attainment date of December 31, 2021, is impracticable; the RFP demonstration in the 2016 PM 2.5 Plan, as revised in 2018 PM 2.5 Plan; the quantitative milestones in the 2016 PM 2.5 Plan, as revised in the 2018 PM 2.5 Plan and the Valley State SIP Strategy; and the motor vehicle emissions budgets for 2022 in the 2018 PM 2.5 Plan. 11

In support of our proposed approval of the above SIP elements, we proposed to approve the demonstrations in the 2016 PM 2.5 Plan and the 2018 PM 2.5 Plan that emissions of ammonia, sulfur oxides, and volatile organic compounds do not contribute significantly to ambient PM 2.5 levels that exceed the 2012 PM 2.5 NAAQS in the SJV. We also found that the photochemical modeling in the 2016 PM 2.5 Plan and 2018 PM 2.5 Plan is adequate for the purposes of supporting the RFP demonstration and the demonstration of impracticability in the 2016 PM 2.5 Plan.

The EPA also proposed to disapprove contingency measure elements because, among other reasons, the elements include no specific measures to be undertaken if the State fails to submit a quantitative milestone report for the area, or if the area fails to meet RFP or a quantitative milestone. Specifically, the proposed disapprovals apply to the 2016 PM 2.5 Plan for the 2012 PM 2.5 NAAQS, as revised in the 2018 PM 2.5 Plan and supplemented by section 5.7.3 of District Rule 4901 (“Wood Burning Fireplaces and Wood Burning Heaters”), 12 and the contingency measure element of the 2018 PM 2.5 Plan for the 2006 PM 2.5 NAAQS, as supplemented by section 5.7.3 of District Rule 4901. In addition, with respect to the contingency measure element in the 2018 PM 2.5 Plan for the 2006 PM 2.5 NAAQS, as supplemented by section 5.7.3 of District Rule 4901, the element includes a specific measure that may not result in any emissions reductions following a failure to attain the 2006 PM 2.5 NAAQS by the applicable attainment date under certain circumstances.

Because the EPA previously approved the Serious area plan RFP and attainment demonstrations and the MVEBs for the 2006 PM 2.5 NAAQS, 13 and because we proposed to approve the Moderate area plan RACM, additional reasonable measures, and RFP demonstrations, and MVEBs for the 2012 PM 2.5 NAAQS, we also proposed to issue a protective finding under 40 CFR 93.120(a)(3) to the disapproval of the contingency measures elements. As explained in our proposed rule, without a protective finding, the final disapprovals would result in a conformity freeze, under which only projects in the first four years of the most recent conforming Regional Transportation Plan (RTP) and Transportation Improvement Programs (TIP) can proceed. Generally, during a freeze, no new RTPs, TIPs, or RTP/TIP amendments can be found to conform until another control strategy implementation plan revision fulfilling the same CAA requirements is submitted, the EPA finds its motor vehicle emissions budget(s) adequate pursuant to section 93.118 or approves the submission, and conformity to the implementation plan revision is determined. 14 Under a protective finding, the final disapproval of the contingency measures elements will not result in a transportation conformity freeze in the SJV PM 2.5 nonattainment area and the metropolitan planning organizations (MPOs) may continue to make transportation conformity determinations.

Lastly, we proposed to reclassify the SJV PM 2.5 nonattainment area, including reservation areas of Indian country and any other area where the EPA or a tribe has demonstrated that a tribe has jurisdiction within the SJV, as Serious nonattainment for the 2012 PM 2.5 standard based on the agency's determination that the SJV cannot practicably attain the standard by the Moderate area attainment date of December 31, 2021.

With respect to reclassification, in the proposed rule, we explained that under section 188(c)(2) of the Act, the attainment date for a Serious area “shall be as expeditiously as practicable but no later than the end of the tenth calendar year beginning after the area's designation as nonattainment. . . .” The EPA designated the SJV as nonattainment for the 2012 PM 2.5 standard effective April 15, 2015. 15 Therefore, as a result of our reclassification of the SJV as a Serious nonattainment area, the attainment date under section 188(c)(2) of the Act for the 2012 PM 2.5 NAAQS in this area is as expeditiously as practicable but no later than December 31, 2025.

Our proposed rule also identified the Serious area attainment plan elements that California would, upon reclassification, have to submit to satisfy the statutory requirements that apply to Serious areas, including the requirements of subpart 4 of part D, title I of the Act. The EPA explained that under section 189(b)(2) of the Act, the state must submit the required provisions to implement BACM, including best available control technology (BACT), 16 no later than 18 months after reclassification. Because an up-to-date emissions inventory serves as the foundation for a state's BACM and BACT determinations, the EPA proposed to also require the State to submit the emissions inventory required under CAA section 172(c)(3) within 18 months after the effective date of final reclassification. Similarly, because an effective evaluation of BACM and BACT requires evaluation of the precursor pollutants that must be controlled to provide for expeditious attainment in the area, the EPA proposed to require the State to submit any optional precursor insignificance demonstrations by this same date. The EPA also proposed an 18-month deadline for submittal of any nonattainment new source review (NNSR) SIP revisions required to satisfy the requirements of CAA sections 189(b)(3) and 189(e).

The EPA proposed to require the State to submit the attainment demonstration required under section 189(b)(1)(A) and all other attainment-related plan elements for the SJV nonattainment area no later the end of the eighth calendar year after designation— i.e., by December 31, 2023. We noted that although section 189(b)(2) generally provides for up to four years after a discretionary reclassification for the state to submit the required attainment demonstration, given the timing of the reclassification action less than two years before the Moderate area attainment date, it is appropriate in this case for the EPA to establish an earlier SIP submission deadline to assure timely implementation of the statutory requirements.

The EPA also noted in our proposed rule that the 2018 PM 2.5 Plan, submitted concurrently with the 2016 PM 2.5 Plan on May 10, 2019, includes a Serious area attainment demonstration, emissions inventory, attainment-related plan elements, and BACM and BACT provisions. CARB also submitted a SIP submission for the Serious area NNSR requirements on November 20, 2019. The EPA intends to evaluate and act on the Serious area plan and NNSR SIP submissions for the 2012 PM 2.5 NAAQS in the SJV through separate rulemakings, as appropriate. 17

Please see our September 1, 2021 proposed rule for additional background and a more detailed explanation of the rationale for our proposed actions.

The EPA's proposed rule provided a 30-day public comment period that ended on October 1, 2021. During this period, the EPA did not receive any comments.

For the reasons discussed in detail in the proposed rule and summarized herein, under CAA section 110(k)(3), the EPA is taking final action to approve the following elements of the 2016 PM 2.5 Plan and 2018 PM 2.5 Plan as meeting the Moderate area requirements for the 2012 PM 2.5 NAAQS:

• The 2013 base year emissions inventories in the 2016 PM 2.5 Plan, as revised in the 2018 PM 2.5 Plan, as meeting the requirements of CAA section 172(c)(3) and 40 CFR 51.1008(a);

• the reasonably available control measures/reasonably available control technology demonstration and additional reasonable measures for all sources of direct PM 2.5 and NO X in the 2016 PM 2.5 Plan, as supplemented in the 2018 PM 2.5 Plan, as meeting the requirements of CAA sections 172(c)(1) and 189(a)(1)(C) and 40 CFR 51.1009;

• the demonstration in the 2016 PM 2.5 Plan that attainment by the Moderate area attainment date of December 31, 2021, is impracticable as meeting the requirements of CAA section 189(a)(1)(B)(ii) and 40 CFR 51.1011(a);

• the reasonable further progress demonstration in the 2016 PM 2.5 Plan, as revised in 2018 PM 2.5 Plan, as meeting the requirements of CAA section 172(c)(2) and 40 CFR 51.1012(a);

• the quantitative milestones in the 2016 PM 2.5 Plan, as revised in the 2018 PM 2.5 Plan and the Valley State SIP Strategy, as meeting the requirements of CAA section 189(c) and 40 CFR 51.1013(a)(1); and

• the following motor vehicle emissions budgets for 2022 in the 2018 PM 2.5 Plan as meeting the requirements of CAA section 176(c) and 40 CFR part 93, subpart A:  18

With respect to the budgets, we are limiting the duration of our approval of the budgets to last only until the effective date of the EPA's adequacy finding for any subsequently submitted budgets. Also, we are approving the 6.5:1 NO X for PM 2.5 trading mechanism as an enforceable component of the transportation conformity program for the SJV for the 2012 PM 2.5 NAAQS. Furthermore, we are determining that the submitted 2022 budgets included in the 2018 PM 2.5 Plan for the 2012 PM 2.5 NAAQS are adequate for transportation conformity purposes. 19

Pursuant to CAA section 110(k)(3), the EPA is finalizing disapproval of the contingency measure elements for failure to meet the requirements of CAA section 172(c)(9) and 40 CFR 51.1014. The disapproved elements are for the 2016 PM 2.5 Plan for the 2012 PM 2.5 NAAQS, as revised in the 2018 PM 2.5 Plan and supplemented by section 5.7.3 of District Rule 4901, and the contingency measure element of the 2018 PM 2.5 Plan for the 2006 PM 2.5 NAAQS, as supplemented by section 5.7.3 of District Rule 4901.

As a consequence of our disapproval, the offset sanction in CAA section 179(b)(2) will apply in the SJV 18 months after the effective date of our action, and the highway funding sanctions in CAA section 179(b)(1) will apply in the area six months after the offset sanction is imposed. 20 Neither sanction will be imposed under the CAA if the State submits and we approve, prior to the implementation of the sanctions, a SIP revision that corrects the deficiencies that we identify in our final action. The EPA intends to work with CARB and the SJVUAPCD to correct the deficiencies in a timely manner. As noted in our proposed rule, the EPA is already subject to a statutory deadline to promulgate a federal implementation plan to address the contingency measure requirements for San Joaquin Valley for the 2006 PM 2.5 NAAQS and 2012 PM 2.5 NAAQS due to the prior finding that California had failed to submit SIP revisions to address those requirements within the prescribed periods. 21

The EPA is also finalizing our issuance of a protective finding under 40 CFR 93.120(a)(3) to the disapproval of the contingency measure elements. Under a protective finding, the final disapproval of the contingency measures elements will not result in a transportation conformity freeze in the SJV PM 2.5 nonattainment area and the MPOs may continue to make transportation conformity determinations.

In accordance with section 188(b)(1) of the Act, the EPA is taking final action to reclassify the SJV PM 2.5 nonattainment area from Moderate to Serious nonattainment for the 2012 PM 2.5 standard, based on the agency's determination that the SJV cannot practicably attain the standard by the Moderate area attainment date of December 31, 2021. Pursuant to section 188(c)(2) of the Act, the applicable attainment date for SJV as a Serious nonattainment area for the 2012 PM 2.5 NAAQS is as expeditiously as practicable but no later than December 31, 2025, or by the most expeditious alternative date practicable and no later than December 31, 2030, in accordance with the requirements of CAA sections 189(b) and 188(e).

When the SJV nonattainment area was designated nonattainment for the 2012 PM 2.5 NAAQS, eight Indian tribes were located within the boundaries of the nonattainment area. These tribes include Big Sandy Rancheria of Western Mono Indians of California, Cold Springs Rancheria of Mono Indians of California, Northfork Rancheria of Mono Indians of California, Picayune Rancheria of Chukchansi Indians of California, Santa Rosa Indian Community of the Santa Rosa Rancheria, California, Table Mountain Rancheria, Tejon Indian Tribe, and Tule River Indian Tribe of the Tule River Reservation, California.

We have considered the relevance of our final action to reclassify the SJV nonattainment area as Serious nonattainment for the 2012 PM 2.5 standard for each tribe located within the SJV nonattainment area. As discussed in more detail in our proposed rule, we believe that the same facts and circumstances that support the reclassification for the non-Indian country lands also support reclassification for reservation areas of Indian country  22 and any other areas of Indian country where the EPA or a tribe has demonstrated that the tribe has jurisdiction located within the SJV nonattainment area. 23 In this final action, the EPA is therefore exercising its authority under CAA section 188(b)(1) to reclassify reservation areas of Indian country and any other areas of Indian country where the EPA or a tribe has demonstrated that the tribe has jurisdiction geographically located in the SJV nonattainment area to Serious for the 2012 PM 2.5 NAAQS. The EPA contacted tribal officials early in the process of developing this action to provide time for tribal officials to have meaningful and timely input into its development. 24 We notified tribal officials when the proposed action published in the Federal Register and continue to invite Indian tribes in the SJV nonattainment area to contact the EPA with any questions about the effects of this reclassification on tribal interests and air quality. We note that although eligible tribes may seek the EPA's approval of relevant tribal programs under the CAA, none of the affected tribes will be required to submit an implementation plan as a result of this reclassification.

As a consequence of our reclassification of the SJV nonattainment area as a Serious nonattainment area for the 2012 PM 2.5 NAAQS, California is required to submit, within 18 months after the effective date of the reclassification, an emissions inventory, provisions to assure that BACM shall be implemented no later than four years after the date of reclassification, and any NNSR SIP revisions required to satisfy the requirements of CAA sections 189(b)(3) and 189(e). California will also be required to submit, by December 31, 2023, a Serious area plan that satisfies the requirements of part D of title I of the Act. This plan must include a demonstration that the SJV will attain the 2012 PM 2.5 standard as expeditiously as practicable but no later than December 31, 2025, or by the most expeditious alternative date practicable and no later than December 31, 2030, in accordance with the requirements of CAA sections 189(b) and 188(e). The Serious area must also include plan provisions that require RFP; quantitative milestones that are to be achieved every three years until the area is redesignated attainment and that demonstrate RFP toward attainment by the applicable date; provisions to assure that control requirements applicable to major stationary sources of PM 2.5 also apply to major stationary sources of PM 2.5 precursors, except where the state demonstrates to the EPA's satisfaction that such sources do not contribute significantly to PM 2.5 levels that exceed the standard in the area; and contingency measures to be implemented if the area fails to meet RFP or to attain by the applicable attainment date.

We note that the 2018 PM 2.5 Plan, submitted concurrently with the 2016 PM 2.5 Plan on May 10, 2019, includes a Serious area attainment demonstration, emissions inventory, attainment-related plan elements, and BACM/BACT provisions for the 2012 PM 2.5 NAAQS. CARB also submitted a SIP submission for the Serious area NNSR requirements on November 20, 2019. The EPA intends to evaluate and act on the Serious area plan and NNSR SIP submissions for the 2012 PM 2.5 NAAQS in the SJV through separate rulemakings, as appropriate.

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

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

This action does not impose an information collection burden under the PRA because this action does not impose additional requirements beyond those imposed by State law.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This action would approve or disapprove State plans as meeting federal requirements and would not impose additional requirements beyond those imposed by State law. Additionally, this action reclassifies the SJV nonattainment area as Serious nonattainment for the 2012 PM 2.5 NAAQS and does not itself regulate small entities.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action does not impose additional requirements beyond those imposed by State law. Additionally, this action reclassifies the SJV nonattainment area as Serious nonattainment for the 2012 PM 2.5 NAAQS and would not itself impose any federal intergovernmental mandate. This action does not require any tribe to submit implementation plans.

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

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires the EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have Tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the federal government and the Indian tribes, or on the distribution of power and responsibilities between the federal government and Indian Tribes.”

Eight Indian tribes are located within the boundaries of the SJV nonattainment area for the 2012 PM 2.5 NAAQS: The Big Sandy Rancheria of Western Mono Indians of California, the Cold Springs Rancheria of Mono Indians of California, the Northfork Rancheria of Mono Indians of California, the Picayune Rancheria of Chukchansi Indians of California, the Santa Rosa Indian Community of the Santa Rosa Rancheria, California, the Table Mountain Rancheria, the Tejon Indian Tribe, and the Tule River Indian Tribe of the Tule River Reservation, California.

The EPA's actions on the SIP elements submitted by California to address the Moderate area requirements for the 2012 PM 2.5 NAAQS and the contingency measure requirement for the 2006 PM 2.5 NAAQS do not have tribal implications because 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 actions on the SIP submittals do not have tribal implications and do not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175.

The EPA has concluded that the reclassification might have tribal implications for the purposes of Executive Order 13175 but does not impose substantial direct costs upon the tribes, nor would it preempt tribal law. The reclassification from Moderate to Serious for a PM 2.5 NAAQS would typically affect the EPA's implementation of the new source review program because of the lower “major source” threshold triggered by reclassification (70 tons per year for direct PM 2.5 and precursors to PM 2.5 ). However, because the SJV nonattainment area is already classified as Serious for the 1997 and 2006 PM 2.5 NAAQS, the lower thresholds already apply within the nonattainment area, and the reclassification from Moderate to Serious for the 2012 PM 2.5 NAAQS has no additional effect. The same is true for any tribal projects that require federal permits, approvals, or funding. Such projects are subject to the requirements of the EPA's general conformity rule, and federal permits, approvals, or funding for the projects would typically become more difficult to obtain because of the lower de minimis thresholds triggered by reclassification but, in this case, the lower de minimis thresholds already apply within the SJV.

Given the potential implications, the EPA contacted tribal officials during the process of developing the September 1, 2021 proposed rule to provide an opportunity to have meaningful and timely input into its development. On March 3, 2021, we sent letters to leaders of the eight tribes with areas of Indian country in the SJV nonattainment area inviting government-to-government consultation on the rulemaking effort. We requested that the tribal leaders, or their designated consultation representatives, notify us of their interest in government-to-government consultation by April 5, 2021. We did not receive any request for consultation, and we did not receive any public comments on our proposed action.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it approves or disapproves State plans implementing a federal standard and reclassifies the SJV nonattainment area as Serious nonattainment for the 2012 PM 2.5 NAAQS, triggering Serious area planning requirements under the CAA. This action does not establish an environmental standard intended to mitigate health or safety risks.

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

This rulemaking does not involve technical standards.

The EPA has determined that this action will not have potential disproportionately high and adverse human health or environmental effects on minority or low-income populations because they do not affect the level of protection provided to human health or the environment. This action approves or disapproves State plans implementing a federal standard and reclassifies the SJV nonattainment area as Serious nonattainment for the 2012 PM 2.5 NAAQS, triggering additional Serious area planning requirements under the CAA.

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 25, 2022. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

For the reasons started in the preamble, the EPA amends Chapter I, title 40 of the Code of Federal Regulations as follows:

On January 12, 2021, the Department issued amendments to and repromulgated portions of the Uniform Administrative Requirements, 45 CFR part 75. 86 FR 2257. That rule repromulgated provisions of part 75 that were originally published late in 2016. It also made amendments to 45 CFR 75.300(c) and (d).

Specifically, the rule amended paragraph (c), which previously provided that it is a public policy requirement of HHS that no person otherwise eligible will be excluded from participation in, denied the benefits of, or subjected to discrimination in the administration of HHS programs and services based on non-merit factors such as age, disability, sex, race, color, national origin, religion, gender identity, or sexual orientation. Recipients must comply with the public policy requirement in the administration of programs supported by HHS awards. The rule amended paragraph (c) to provide that it is a public policy requirement of HHS that no person otherwise eligible will be excluded from participation in, denied the benefits of, or subjected to discrimination in the administration of HHS programs and services, to the extent doing so is prohibited by Federal statute.

Additionally, the rule amended paragraph (d), which previously provided that in accordance with the Supreme Court decisions in United States v. Windsor and in Obergefell v. Hodges, all recipients must treat as valid the marriages of same-sex couples. The paragraph provided that it did not apply to registered domestic partnerships, civil unions, or similar formal relationships recognized under state law as something other than a marriage. The rule amended paragraph (d) to provide that HHS will follow all applicable Supreme Court decisions in administering its award programs.

On February 2, the portions of rulemaking amendments to § 75.300 (and a conforming amendment at § 75.101(f)) were challenged in the U.S. District Court for the District of Columbia. Facing Foster Care et al. v. HHS, 21-cv-00308 (D.D.C. filed Feb. 2, 2021). On February 9, the court postponed, pursuant to 5 U.S.C. 705, the effective date of the challenged portions of the rule by 180 days, until August 11, 2021. 1 On August 5, the court again postponed the effective date of the rule until November 9, 2021. 2 On November 3, the court further postponed the effective date of the rule until January 17, 2022. 3 The Department is issuing this notification to apprise the public of the court's order.

DoD, GSA, and NASA are correcting an amendatory instruction under part 53, section 53.213.

In FR Doc. 2021-22144 appearing on pages 61017-61038 in the issue of November 4, 2021, make the following correction:

You may submit your comments and materials regarding the taxonomic revisions, identified below in Table 1, by one of the methods listed in ADDRESSES . Please include sufficient information with your comments that will allow us to verify any scientific or commercial information you include. We will not consider comments sent by email or fax, or to an address not listed in ADDRESSES .

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

Comments and materials we receive, as well as supporting documentation we used in preparing this direct final rule, will be available for public inspection on the internet at https://www.regulations.gov. Please note that comments posted to https://www.regulations.gov are not immediately viewable. When you submit a comment, the system receives it immediately. However, the comment will not be publicly viewable until we post it, which might not occur until several days after submission. Information regarding this rule is available in alternative formats upon request (see FOR FURTHER INFORMATION CONTACT ).

The List of Endangered and Threatened Wildlife and the List of Endangered and Threatened Plants (“the Lists”), set forth in title 50 of the Code of Federal Regulations (CFR) at §§ 17.11 and 17.12, respectively, contain the names of endangered species and threatened species federally listed pursuant to the ESA (16 U.S.C. 1531 et seq. ).

The regulations at 50 CFR 17.11(c) and 17.12(b) direct us to use the most recently accepted scientific name of any wildlife or plant species, respectively, that we have determined to be an endangered or threatened species.

The purpose of this direct final rule is to notify the public that we are revising the Lists at 50 CFR 17.11(h) and 17.12(h) to reflect the scientifically accepted taxonomy and nomenclature of nine wildlife species and nine plant species listed under section 4 of the ESA. These revisions reflect the most recently accepted scientific nomenclature in accordance with 50 CFR 17.11(c) and 17.12(b).

We are publishing this rule without a prior proposal because this is a noncontroversial action that is in the best interest of the public and should be undertaken in as timely a manner as possible. For the taxonomic revisions provided below in Table 1, this rule will be effective, as published in this document, on the effective date specified in DATES , unless we receive significant adverse comments on or before the comment due date specified in DATES . Significant adverse comments are comments that provide strong justification as to why this rule should not be adopted or why it should be changed.

If we receive significant adverse comments regarding the taxonomic changes for any of the species included in Table 1, below, we will publish a document in the Federal Register withdrawing this rule for the appropriate species before the effective date, and we will publish a proposed rule to initiate promulgation of those changes to 50 CFR 17.11(h) and/or 17.12(h).

In addition, we are notifying the public that we have identified editorial errors in the Lists, and they will be corrected on the effective date of this rule (see DATES , above). The identified errors are provided below in Table 2. While you may submit comments by one of the methods listed in ADDRESSES on the corrections provided below in Table 2, we consider these corrections purely administrative, and we intend to make these editorial corrections on the effective date of this rule.

None of these changes are regulatory in nature; they are for accuracy and clarity. These revisions do not alter species' protections or status in any way. Any actions altering a species' protection or status would require a separate rulemaking action following the procedures of 50 CFR part 424.

Table 1 provides taxonomic changes we are making to reflect the scientifically accepted taxonomy and nomenclature of nine wildlife and nine plant species listed under section 4 of the ESA. These changes reflect the most recently accepted scientific nomenclature in accordance with 50 CFR 17.11(c) and 17.12(b).

Regulations governing the summer flounder fishery are found in 50 CFR 648.100 through 648.110. These regulations require annual specification of a commercial quota that is apportioned among the coastal states from Maine through North Carolina. The process to set the annual commercial quota and the percent allocated to each state is described in § 648.102 and final 2021 allocations were published on December 21, 2020 (85 FR 82946).

The final rule implementing Amendment 5 to the Summer Flounder Fishery Management Plan (FMP), as published in the Federal Register on December 17, 1993 (58 FR 65936), provided a mechanism for transferring summer flounder commercial quota from one state to another. Two or more states, under mutual agreement and with the concurrence of the NMFS Greater Atlantic Regional Administrator, can transfer or combine summer flounder commercial quota under § 648.102(c)(2). The Regional Administrator is required to consider three criteria in the evaluation of requests for quota transfers or combinations: The transfer or combinations would not preclude the overall annual quota from being fully harvested; the transfer addresses an unforeseen variation or contingency in the fishery; and the transfer is consistent with the objectives of the FMP and the Magnuson-Stevens Fishery Conservation and Management Act. The Regional Administrator has determined these three criteria have been met for the transfers approved in this notification.

Virginia is transferring 30,000 lb (13,608 kg) of summer flounder to Connecticut through mutual agreement of the states. This transfer was requested so that Connecticut would not exceed its 2021 commercial quota. North Carolina is transferring 22,158 lb (10,051 kg) to Rhode Island to repay landings made by a North Carolina-permitted vessel under a safe harbor agreement. The revised summer flounder quotas for 2021 are: Virginia, 2,359,776 lb (1,070,376 kg); Connecticut, 629,376 lb (285,480 kg); North Carolina, 2,952,765 lb (1,339,352 kg); and Rhode Island, 1,883,708 lb (854,436 kg).

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR 648.162(e)(1)(i) through (iii), which was issued pursuant to section 304(b), and is exempted from review under Executive Order 12866.