TCCA, which is the aviation authority for Canada, has issued TCCA AD CF-2021-01, dated January 8, 2021 (TCCA AD CF-2021-01) (also referred to as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for certain Airbus Canada Limited Partnership Model BD-500-1A10 and BD-500-1A11 airplanes.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus Canada Limited Partnership Model BD-500-1A10 and BD-500-1A11 airplanes. The NPRM published in the Federal Register on August 25, 2021 (86 FR 47424). The NPRM was prompted by reports of loose powerplant FIREX interconnection hoses, and in one instance a hose was found disconnected. An investigation by the manufacturer determined that if the instructions for connecting the FIREX hose are not followed properly, hoses can become loose or disconnected. The NPRM proposed to require replacing certain existing FIREX hose assemblies with a newly designed FIREX hose assembly, as specified in TCCA AD CF-2021-01.

The FAA is issuing this AD to address the possibility that fire extinguishing agent may not be effectively applied should a fire occur within a powerplant assembly that has a partially or completely disconnected FIREX hose, which could result in the inability to put out a fire in the engine. See the MCAI for additional background information.

The FAA received a comment from Air Line Pilots Association, International, who supported the NPRM without change.

The FAA received an additional comment from Delta Air Lines. The following presents the comment received on the NPRM and the FAA's response.

Delta Air Lines (DAL) requested that the FAA withdraw the proposed AD. DAL stated that it had already accomplished the required actions of paragraph (g) of the proposed AD by accomplishing the actions specified in Airbus Canada Limited Partnership Service Bulletin (SB) BD500-262003 Issue 002, dated January 7, 2020.

The FAA does not agree with the request to withdraw this AD. Even though DAL is the only current U.S. operator of the applicable airplanes, the AD must still be issued in case of any future imports of the airplanes.

The FAA reviewed the relevant data, considered the comments 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.

TCCA AD CF-2021-01 describes procedures for replacing certain existing FIREX hose assemblies on each powerplant with a newly designed FIREX hose assembly with provisions for the installation of safety cables at each end, in order to prevent the hose from becoming loose or disconnected. 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 36 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

According to the manufacturer, some or all of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected operators. The FAA does not control warranty coverage for affected operators. As a result, the FAA has included all known costs in the cost estimate.

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 all Fiberglas-Technik Rudolf Lindner GmbH & Co. KG Model G102 ASTIR CS, G103 TWIN ASTIR, G103 TWIN II, G103A TWIN II ACRO, G103C TWIN III ACRO, and G 103 C TWIN III SL gliders. The NPRM published in the Federal Register on October 29, 2021 (86 FR 59903). The NPRM was prompted by MCAI originated by the European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union. EASA issued EASA AD 2020-0138, dated June 19, 2020 (referred to after this as “the MCAI”), to address an unsafe condition on Fiberglas-Technik Rudolf Lindner GmbH & Co. KG Model G102 ASTIR CS, G103 TWIN ASTIR, G103 TWIN II, G103A TWIN II ACRO, G103C TWIN III ACRO, and G 103 C TWIN III SL gliders. 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-2021-0944.

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 reviewed the relevant data and 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 Fiberglas-Technik Rudolf Lindner Anweisung/Instructions (A/I-G09), Revision 1, dated May 14, 2020. This service information provides instructions to inspect the elevator control pushrod for water and corrosion, replace the elevator control pushrod if any water or corrosion is found, and apply corrosion prevention if no water and no corrosion are found. 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 FAA also reviewed Fiberglas-Technik Rudolf Lindner Service Bulletin (SB-G09), Revision 1, dated May 14, 2020. This service information refers to the instructions in A/I-G09 to inspect and replace the elevator control pushrod on various gliders.

The FAA reviewed Grob TFE Service Bulletin TM 315-34, dated December 8, 1987. This service information provides effectivity, reason, and high-level instructions for inspecting and replacing the elevator control pushrod on certain Model G 103 A TWIN II ACRO gliders.

The FAA reviewed Grob TFE Repair Instructions No. 315-34 for Service Bulletin TM 315-34, dated December 8, 1987. This service information provides more detailed instructions for inspecting and replacing the elevator control pushrod on certain Model G 103 A TWIN II ACRO gliders.

The MCAI applies to Model ASTIR CS 77, ASTIR CS Jeans, CLUB ASTIR II, STANDARD ASTIR II, TWIN ASTIR TRAINER, GROB G 103 C “TWIN III,” ASTIR CS 77 TOP, ASTIR CS JEANS TOP, and ASTIR CS TOP gliders. This AD does not apply to these model gliders because they do not have an FAA type certificate.

The FAA estimates that this AD affects 149 gliders of U.S. registry. The FAA estimates that it would take about 4 work-hours per glider to inspect the elevator control pushrod and require parts costing $100. The average labor rate is $85 per work-hour. Based on these figures, the FAA estimates the cost to inspect the elevator control pushrod on U.S. operators to be $65,560 or $440 per glider.

In addition, the FAA estimates that for gliders with water or corrosion within the elevator control pushrod, replacement would take about 8 work-hours and require parts costing $500. The average labor rate is $85 per work-hour. Based on these figures, the FAA estimates the cost to replace the elevator control pushrod on U.S. operators to be $1,180 per glider.

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. For the reasons discussed above, I certify 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 2021-0149, dated June 21, 2021 (EASA AD 2021-0149), to correct an unsafe condition for Airbus Helicopters Deutschland GmbH (AHD) Model EC135 P1, EC135 P2, EC135 P2+, EC135 P3, EC135 T1, EC135 T2, EC135 T2+, EC135 T3, EC635 P2+, EC635 P3, EC635 T1, EC635 T2+, and EC635 T3 helicopters, all variants, all serial numbers up to 820 inclusive. Model EC635 P2+, EC635 P3, EC635 T1, EC635 T2+, and EC635 T3 helicopters are not certificated by the FAA and are not included on the U.S. type certificate data sheet (TCDS), except where the TCDS explains that the Model EC635T2+ helicopter having serial number 0858 was converted from Model EC635T2+ to Model EC135T2+. This AD, therefore, does not include Model EC635 P2+, EC635 P3, EC635 T1, EC635 T2+, and EC635 T3 helicopters in the applicability.

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 Deutschland GmbH Model EC135P1, EC135P2, EC135P2+, EC135P3, EC135T1, EC135T2, EC135T2+, and EC135T3 helicopters, certificated in any category, as identified in EASA 2021-0149. The NPRM published in the Federal Register on November 23, 2021 (86 FR 66474). The NPRM was prompted by a report of restricted collective lever movement caused by entanglement of the emergency flashlight strap with the cargo hook emergency release lever, causing the emergency flashlight to leave its seat. The NPRM proposed to require replacing each affected emergency flashlight with a serviceable part, as specified in EASA AD 2021-0149.

The FAA is issuing this AD to address entanglement of the emergency flashlight strap with the cargo hook emergency release lever. See EASA AD 2021-0149 for additional background information.

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

These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA about the unsafe condition described in its AD. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these helicopters. Except for minor editorial changes, including updating the name “Airbus Helicopters Deutschland GmbH” to “Airbus Helicopters Deutschland GmbH (AHD)” to match its FAA TCDS type certificate holder name, adding the Other Related Service Information section to describe Airbus Helicopters service information, correcting the issuance date of EASA AD 2021-0149 in the Applicability paragraph, and reformatting and updating the Costs of Compliance section, this AD is adopted as proposed in the NPRM.

EASA AD 2021-0149 requires replacing each affected emergency flashlight with a serviceable part. EASA AD 2021-0149 also specifies that an affected part can be modified and re-identified into a serviceable part. EASA AD 2021-0149 also prohibits the installation of an affected part.

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 reviewed Airbus Helicopters Alert Service Bulletin ASB EC135-25A-032, Revision 0, dated May 20, 2021. This service information specifies procedures to remove the strap from the emergency flashlight and what part number to write on the flashlight.

The FAA estimates that this AD affects 335 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.

Replacing an emergency flashlight takes about 1 work-hour and parts cost about $219 for an estimated cost of $304 per flashlight. Alternatively, modifying an emergency flashlight takes about 1 work-hour for an estimated cost of $85 per flashlight.

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 2021-0015, dated January 13, 2021 (EASA AD 2021-0015), to correct an unsafe condition for Airbus Helicopters (AH), formerly Eurocopter, Eurocopter France, Model EC 120 B helicopters.

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 EC120B helicopters. The NPRM published in the Federal Register on October 28, 2021 (86 FR 59655). The NPRM was prompted by a report of corrosion found on the external tail boom skin, under the VHF antenna of an EC120B helicopter. The NPRM proposed to require inspecting the tail boom at the VHF antenna attachments and depending on the results, repairing or modifying the tail boom skin, as specified in EASA AD 2021-0015.

The FAA is issuing this AD to detect corrosion in the area of the external tail boom skin under the VHF antenna and prevent degradation of the tail boom structure. The unsafe condition, if not addressed, could result in a possible roll-over during landing. See EASA AD 2021-0015 for additional background information.

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

These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA about the unsafe condition described in its AD. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these helicopters.

EASA AD 2021-0015 requires a one-time inspection of the VHF antenna attachments to the tail boom and, depending on the results, corrective action or modification of the tail boom.

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 reviewed Airbus Helicopters Alert Service Bulletin No. EC120-53A017, Revision 1, dated November 26, 2020. This service information specifies procedures for inspecting and modifying the VHF antenna attachments on the tail boom.

The FAA also reviewed Airbus Helicopters Service Bulletin No. EC120-53-018, Revision 0, dated November 26, 2020. This service information specifies procedures for repairing the tail boom if there is any corrosion or a crack at the VHF antenna attachments.

Where the service information referenced in EASA AD 2021-0015 specifies “to check for corrosion under the VHF antenna base support,” this AD requires inspecting for corrosion because that action must be accomplished by a mechanic that meets the requirements of 14 CFR part 65 subpart D. Where the service information referenced in EASA AD 2021-0015 specifies to “make sure that there is no aluminum oxide (white powder),” “make sure that there is no pitting corrosion,” and “make sure that there are no crack,” this AD requires inspecting for any aluminum oxide (white powder), pitting corrosion, and cracks instead. Where the service information referenced in EASA AD 2021-0015 specifies discarding parts, this AD requires removing those parts from service instead.

The FAA estimates that this AD affects 89 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates that operators may incur the following costs in order to comply with this AD.

Inspecting and modifying each tail boom at the VHF attachment takes about 4 work-hours and parts cost about $4,745, for an estimated cost of $5,085 per helicopter and $452,565 for the U.S. fleet.

If required, repairing the VHF antenna attachment at the tail boom takes up to 15 work-hours and parts cost up to $7,812, for an estimated cost of up to $9,087 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 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 2018-0132, dated June 21, 2018 (EASA AD 2018-0132) (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 November 12, 2021 (86 FR 62744). The NPRM was prompted by the identification of certain parts needing maintenance actions, including life limits and maintenance tasks. The parts include a certain part-numbered main rotor damper, tail gear box center housing, and tail assembly, the fuselage structure assembly (station (STA) 5700, right-hand (RH)/left-hand (LH) side), and tail structure assembly (tail/rear fuselage attachment fittings). The NPRM proposed to require incorporating into maintenance records requirements (airworthiness limitations), as specified in EASA AD 2018-0132.

The FAA is issuing this AD to address the failure of certain parts, which could result in the loss of control of the helicopter. See EASA AD 2018-0132 for additional background information.

The FAA received a comment from one commenter, Bristow Group, who commented on the service information. The following presents the comment received on the NPRM and the FAA's response to the comment.

The commenter stated it would take into consideration that the service information identified in EASA AD 2018-0132 (Leonardo AB139 and AW139 Maintenance Manual (MM), 39-A-AMPI-00-P, Chapter IV, Airworthiness Limitations, Issue 9, dated March 6, 2018, as well as Issue 8) has already been added. The commenter noted the EASA AMPI ( i.e., the airworthiness limitations section (ALS) document) is already on Issue 14 and the FAA AMPI is on Issue 13. The FAA infers the commenter is requesting the FAA consider the effect of later revisions of the ALS document on the proposed AD.

The FAA agrees to clarify the effect of later revisions of the ALS document on this AD. This AD mandates a specific revision of the ALS document. Later revisions of the ALS document are not required to be incorporated into maintenance records requirements (airworthiness limitations) for that helicopter unless an AD mandates those revisions. However, this AD also allows operators to incorporate later approved revisions of the ALS document as specified in the Ref. Publications section of EASA AD 2018-0132 without the need for an alternative method of compliance (AMOC). Historically, operators needed an AMOC to use later revisions of an ALS. The FAA has not changed this AD in this regard.

These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA about the unsafe condition described in its AD. The FAA reviewed the relevant data, considered the comment received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these helicopters. 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.

EASA AD 2018-0132 requires certain actions and associated thresholds and intervals, including life limits and maintenance tasks. These requirements (airworthiness limitations) include new life limits for a certain part-numbered main rotor damper, tail gear box center housing, and tail assembly; and new maintenance tasks ( e.g., inspections for cracking) for the fuselage structure assembly (STA 5700, RH/LH side), and tail structure assembly (tail/rear fuselage attachment fittings).

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 has previously mandated airworthiness limitations by mandating each airworthiness limitation task ( e.g., inspections and replacements (life limits)) as an AD requirement or issuing ADs that require revising the ALS of the existing maintenance manual or instructions for continued airworthiness to incorporate new or revised inspections and life limits. This AD, however, requires operators to incorporate into maintenance records required by 14 CFR 91.417(a)(2) or 135.439(a)(2), as applicable for your rotorcraft, the requirements (airworthiness limitations) specified in an MCAI AD. The FAA does not intend this as a substantive change. For these ADs, the ALS requirements for operators are the same but are complied with differently. Requiring the incorporation of the new ALS requirements into the maintenance records, rather than requiring individual ALS tasks ( e.g., repetitive inspections and replacements), requires operators to record AD compliance once after updating the maintenance records, rather than after every time the ALS task is completed.

In addition, paragraph (h) of this AD allows operators to incorporate later approved revisions of the ALS document as specified in the Ref. Publications section of EASA AD 2018-0132 without the need for an AMOC.

Paragraph (1) of EASA AD 2018-0132 requires compliance with actions and associated thresholds and intervals, including life limits and maintenance tasks, from the effective date of EASA AD 2018-0132. Paragraph (3) of EASA AD 2018-0132 requires incorporating the actions and associated thresholds and intervals, including life limits and maintenance tasks, into the approved maintenance program within 12 months after the effective date of EASA AD 2018-0132. This AD requires incorporating into maintenance records requirements (airworthiness limitations) within 30 days after the effective date of this AD.

The FAA estimates that this AD affects 130 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this AD. Incorporating requirements (airworthiness limitations) into maintenance records would require about 2 work-hours for a cost of $170 per helicopter and a cost of $22,100 for the 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:

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued TCCA AD CF-2021-08, dated March 9, 2021 (TCCA AD CF-2021-08) (also referred to after this as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for De Havilland Aircraft of Canada Limited Model DHC-8-401 and -402 airplanes, serial numbers 4001 and 4003 through 4628 inclusive. You may examine the MCAI in the AD docket at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-0694.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain De Havilland Aircraft of Canada Limited Model DHC-8-401 and -402 airplanes. The NPRM published in the Federal Register on August 24, 2021 (86 FR 47258). The NPRM was prompted by reports of a possible hard contact between the #2 top HLS terminal screw head and the #6 outer wing fuel access panel stiffener flange. The NPRM proposed to require removing and replacing or reworking the #6 outer wing fuel access panel assembly. The FAA is issuing this AD to address the possibility of electrical arcing during a lightning strike, which could be a source of ignition inside the fuel tank. 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 comments received on the NPRM and the FAA's response to each comment. The Air Line Pilots Association, International, supported the NPRM.

Horizon Air requested that the specified service information in paragraphs (g)(1) and (2) of the proposed AD be updated to the latest revision: De Havilland Aircraft of Canada Limited Service Bulletin 84-57-35, Revision B, dated June 9, 2021. Horizon Air also requested that De Havilland Aircraft of Canada Limited Service Bulletin 84-57-35, Revision A, dated February 11, 2021, be added to paragraph (i) of the proposed AD in order to give credit for incorporating that revision.

The FAA agrees, De Havilland Aircraft of Canada Limited Service Bulletin 84-57-35, Revision B, dated June 9, 2021, revises a NOTE and steps to include all part numbers of access panel #6. These changes do not affect operators who use previous revisions of the service information to show compliance with this AD. There are no substantive changes to the procedures between Revision B of the service information and Revision A of the service information, which was proposed as required in the NPRM. The FAA has updated this AD as requested.

The FAA reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this final rule with the change described previously and 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.

The FAA also determined that these changes will not increase the economic burden on any operator or increase the scope of this final rule.

De Havilland Aircraft of Canada Limited has issued Service Bulletin 84-57-35, Revision B, dated June 9, 2021. This service information describes procedures for replacing or reworking the #6 outer wing fuel access panel assembly. The rework involves an eddy current or fluorescent liquid penetrant inspection of the rework area for crack indications. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 54 airplanes of U.S. registry. For either replacement or repair of the #6 outer wing fuel access panel, depending on the option selected by the operator to comply with this AD, the FAA estimates the following costs:

The FAA has included all known costs in its cost estimate. According to the manufacturer, however, some or all 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 to supersede AD 80-13-10, Amendment 39-3812 (45 FR 43155, June 26, 1980) (AD 80-13-10); AD 80-13-12 R1, Amendment 39-4135 (46 FR 31251, June 15, 1981) (AD 80-13-12 R1); and AD 2008-03-01, Amendment 39 15350 (73 FR 5729, January 31, 2008) (AD 2008-03-01). AD 80-13-10 applied to de Havilland (type certificate now held by Viking Air Limited) Model “DHC-6 type” airplanes with certain MLG legs and required repetitively inspecting the weld juncture at the Y-joint of the MLG legs for cracks and corrosion. AD 80-13-12 R1 applied to certain serial-numbered de Havilland (now Viking Air Limited) Model “DHC-6 type” airplanes with intermediate or high floatation tires, skis, or floats and required repetitively inspecting each engine nacelle lower longeron for cracks and buckling. AD 2008-03-01 applied to all Viking Air Limited Model DHC-6-1, DHC-6-100, DHC-6-200, and DHC-6-300 airplanes and required incorporating the inspections, modifications, and life limits (retirement) of certain structural components, as contained in Revision 5 of the DHC-6 Product Support Manual (PSM) 1-6-11, into the aircraft maintenance program. The NPRM published in the Federal Register on November 8, 2021 (86 FR 61719).

The NPRM was prompted by Canadian AD CF-2019-02, dated January 9, 2019 (referred to after this as “the MCAI”), issued by Transport Canada, which is the aviation authority for Canada. The MCAI applies to all Viking Air Limited (formerly de Havilland) Model DHC-6 series 1, DHC-6 series 100, DHC-6 series 110, DHC-6 series 200, DHC-6 series 210, DHC-6 series 300, DHC-6 series 310, DHC-6 series 320, and DHC-6 series 400 airplanes. The MCAI states:

Model DHC-6-400 airplanes were type certificated after Transport Canada AD CF-2000-14 was issued and are subject to the same unsafe condition. You may examine the MCAI in the AD docket at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-0960.

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 Viking Air Limited DHC-6 Twin Otter PSM 1-6-11, Airframe Airworthiness Limitations Manual, Revision 9, dated April 30, 2018. The service information contains airworthiness limitations for certain structural components. 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 FAA has previously mandated airworthiness limitations by issuing ADs that require revising the airworthiness limitation section (ALS) of the existing maintenance manual or instructions for continued airworthiness to incorporate new or revised inspections and life limits. This AD, however, requires incorporating new or revised inspections and life limits into the maintenance records required by 14 CFR 91.417(a)(2) or 135.439(a)(2) for your airplane. The FAA does not intend this as a substantive change. Requiring incorporation of the new ALS requirements into the maintenance records, rather than requiring individual repetitive inspections and replacements, allows operators to record AD compliance once after updating the maintenance records, rather than recording compliance after every inspection and part replacement.

The MCAI applies to Viking Air Limited Model DHC-6 series 110, DHC-6 series 210, DHC-6 series 310, and DHC-6 series 320, and this AD does not because these models do not have an FAA type certificate. Transport Canada Models DHC-6 series 1, DHC-6 series 100, DHC-6 series 200, DHC-6 series 300, and DHC-6 series 400 airplanes correspond to FAA Model DHC-6-1, DHC-6-100, DHC-6-200, DHC-6-300, and DHC-6-400 airplanes, respectively.

The FAA estimates that this AD affects 33 airplanes of U.S. registry.

The FAA also estimates that it would take about 1 work-hour per airplane to incorporate life limits, modification limits, and inspection or overhaul intervals into maintenance records. The average labor rate is $85 per work-hour.

Based on these figures, the FAA estimates the cost of this AD on U.S. operators to be $2,805 or $85 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:

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2021-0126, dated May 10, 2021 (EASA AD 2021-0126) to correct an unsafe condition for all serial-numbered Leonardo S.p.a. (AgustaWestland S.p.A., formerly Agusta S.p.A., Agusta un'azienda di Finmeccanica S.p.A., Costruzioni Aeronautiche Giovanni Agusta) Model AB212, AB412, and AB412EP helicopters.

EASA AD 2021-0126 was prompted by a report that due to the application of an incorrect torque level during the assembly process, certain oil and fuel check valves are susceptible to cracking, which may lead to fuel or oil leakage. The FAA is issuing this AD to detect cracks and prevent a lack of engine lubrication, fuel or oil leakage, and loss of fuel supply to the engine, possibly resulting in an engine in-flight shut-down or fire and subsequent loss of control of the helicopter. See EASA AD 2021-0126 for additional background information.

EASA AD 2021-0126 specifies procedures for identification and inspection of the oil check valve part number (P/N) 209-062-520-1 and fuel check valve P/N 209-062-607-1, manufactured by Circor Aerospace which exceed certain dimensions, except those which have had the correct torque level applied. For certain helicopters, EASA AD 2021-0126 specifies procedures for visually inspecting the oil and fuel check valves for fuel leaks and cracks at intervals not to exceed 25 flight hours or 3 months, whichever occurs first, and depending on the inspection results, replacing the affected parts with serviceable parts. For certain helicopters EASA AD 2021-0126 also requires replacing each affected part with a serviceable part, which is considered a terminating action for the recurring inspections. The “Reason” section of EASA AD 2021-0126 requires removing certain parts from service. Although the “Required Action(s) and Compliance Time(s)” section of EASA AD 2021-0126 does not specifically state that affected parts should be removed from service, for clarification, EASA AD 2021-0126 requires the removal from service of the affected parts as defined in EASA AD 2021-0126. EASA AD 2021-0126 also prohibits installing an affected part on any 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.

The FAA reviewed Leonardo Helicopters Alert Service Bulletin No. 412-166, dated March 30, 2021, which specifies procedures to identify and inspect the fuel check valve P/N 209-062-607-1. The FAA also reviewed Leonardo Helicopters Alert Service Bulletin No. 412-167, dated March 30, 2021, which specifies procedures to identify and inspect the oil check valve P/N 209-062-520-1.

These products have been approved by the aviation authority of another country, and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the State of Design Authority, the FAA has been notified of the unsafe condition described in EASA AD 2021-0126 referenced above. The FAA is issuing this AD after evaluating all pertinent information and determining that the unsafe condition exists and is likely to exist or develop on other products of these same type designs.

This AD requires accomplishing the actions specified in EASA AD 2021-0126, described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this AD and except as discussed under “Differences Between this AD and EASA AD 2021-0126.”

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA initially worked with Airbus and EASA to develop a process to use certain EASA ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has since coordinated with other manufacturers and civil aviation authorities to use this process. As a result, EASA AD 2021-0126 is incorporated by reference in this AD. This AD, therefore, requires compliance with EASA AD 2021-0126 in its entirety, through that incorporation, except for any differences identified as exceptions in the regulatory text of this AD. Using common terms that are the same as the heading of a particular section in the EASA AD does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in the EASA AD. Service information specified in EASA AD 2021-0126 that is required for compliance with EASA AD 2021-0126 is available on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-1184.

EASA AD 2021-0126 applies to all serial-numbered Model AB212, AB412 and AB412EP helicopters, whereas this AD only applies to Model AB412 and AB412 EP helicopters. This AD does not apply to Model AB212 helicopters because that model is not FAA type-certificated. Service information referenced in EASA AD 2021-0126 specifies sending compliance forms to the manufacturer; this AD does not.

Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq. ) authorizes agencies to dispense with notice and comment procedures for rules when the agency, for “good cause” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without providing notice and seeking comment prior to issuance. Further, section 553(d) of the APA authorizes agencies to make rules effective in less than thirty days, upon a finding of good cause.

There are currently no domestic operators of these products. Accordingly, notice and opportunity for prior public comment are unnecessary, pursuant to 5 U.S.C. 553(b)(3)(B). In addition, for the foregoing reasons, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days.

The FAA invites you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-1184; Project Identifier MCAI-2021-00573-R” at the beginning of your comments. The most helpful comments reference a specific portion of the AD, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this AD because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to https://www.regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this AD.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Hal Jensen, Aerospace Engineer, Operational Safety Branch, Compliance & Airworthiness Division, FAA, 950 L'Enfant Plaza N SW, Washington, DC 20024; telephone (202) 267-9167; email hal.jensen@faa.gov. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

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

There are no costs of compliance with this AD because there are no helicopters with these type certificates on the U.S. Registry.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

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

For the reasons discussed above, I certify this regulation:

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

(2) Will not affect intrastate aviation in Alaska.

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

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2021-0074, dated March 15, 2021 (EASA AD 2021-0074), to correct an unsafe condition for all Airbus Helicopters Deutschland GmbH (AHD) (formerly Eurocopter Deutschland GmbH; and Airbus Helicopters Inc., formerly American Eurocopter LLC) Model MBB-BK117 C-2 and MBB-BK117 D-2 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 Airbus Helicopters Deutschland GmbH Model MBB-BK 117 C-2 and MBB-BK 117 D-2 helicopters. The NPRM published in the Federal Register on November 26, 2021 (86 FR 67364). The NPRM was prompted by a report that a collective bellcrank-K (affected part) was found incorrectly installed on a helicopter. Subsequent investigations revealed that the affected part was an in-service replacement, and that the position marking on that part was incorrect. The NPRM proposed to require inspecting the collective bellcrank-K to determine if it is correctly installed and has a correct position marking and, depending on the findings, applicable corrective actions, as specified in EASA AD 2021-0074. The NPRM also proposed to allow installation of an affected collective bellcrank-K, provided certain instructions are followed.

The FAA is issuing this AD to address incorrect installation of a collective bellcrank-K, which could lead to unwanted collective input, resulting in reduced control of the helicopter. See EASA AD 2021-0074 for additional background information.

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

These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA about the unsafe condition described in its AD. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these helicopters. Except for minor editorial changes, this AD is adopted as proposed in the NPRM.

EASA AD 2021-0074 requires a one-time inspection of an affected part for correct installation by measuring the distance between the front edge of the bearing block and the front edge of the affected part, and for correct application of position markings, and, depending on the findings, accomplishment of applicable corrective actions. If an affected part is incorrectly installed, the corrective actions include inspecting for signs of chafing on the bearing block, the control lever, the forked lever, the sliding sleeve, and the bearing ring, replacing any parts that have signs of chafing, and installing a serviceable bellcrank-K with an applied position marking. If an affected part is correctly installed but the position marking is not correct, the corrective actions include re-working the affected part or replacing the affected part with a serviceable part that has an applied position marking. EASA AD 2021-0074 also allows installation of an affected part, provided certain instructions are followed.

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 140 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 replacements or rework that would be required based on the results of the inspection. The agency has no way of determining the number of helicopters that might need this replacement or rework:

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:

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued TCCA AD CF-2021-14, dated April 7, 2021 (also referred to after this as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for all Bombardier, Inc., Model BD-100-1A10 airplanes. You may examine the MCAI in the AD docket on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-1014.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Bombardier, Inc., Model BD-100-1A10 airplanes. The NPRM published in the Federal Register on November 26, 2021 (86 FR 67362). The NPRM was prompted by a report that the design of the spoiler control system causes certain EICAS messages to be posted intermittently and repetitively during flight and on the ground, and flightcrews must action the appropriate checklist each time these messages appear. The NPRM proposed to require revising the Non-Normal Procedures section of the existing AFM associated with the SECU EICAS messages. The FAA is issuing this AD to address intermittent and repetitive messaging, which increases overall workload and introduces a risk that flightcrews could become desensitized over time to the messages. This could result in the required checklist not being carried out or completed, and could adversely affect the airplane's continued safe flight and landing. See the MCAI 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, 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.

Bombardier has issued the following AFM procedures, which include a Caution and a Note to the SPOILERS FAULT (C) Non-Normal Procedures, to reinforce the importance of completing the procedure in its entirety each time the message appears.

• Section 05-23, Flight Controls, of Chapter 05, Non-Normal Procedures, of the Bombardier Challenger 300 (Imperial Version) Airplane Flight Manual, Publication No. CSP 100-1, Revision 61, dated September 25, 2020. (For obtaining this section of the Bombardier Challenger 300 (Imperial Version) Airplane Flight Manual, Publication No. CSP 100-1, use Document Identification No. CH 300 AFM-I).

• Section 05-23, Flight Controls, of Chapter 05, Non-Normal Procedures, of the Bombardier Challenger 350 Airplane Flight Manual, Publication No. CH 350 AFM, Revision 27, dated September 25, 2020.

These documents are distinct since they apply to different airplane configurations.

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

The FAA estimates that this AD affects 654 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

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 2021-0079, dated March 17, 2021 (EASA AD 2021-0079), to correct an unsafe condition for all Airbus Helicopters Model EC120B 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 Airbus Helicopters Model EC120B helicopters. The NPRM published in the Federal Register on October 28, 2021 (86 FR 59653). The NPRM was prompted by a report of geometrical non-conformities in the TRB root section discovered during an accident investigation of a Model EC130B helicopter. Due to the similarity of design and production requirements, certain TRBs for the Model EC120B helicopters were inspected and geometrical non-conformities were also found. The NPRM proposed to require an inspection (dimensional check) to verify conformity, and replacement of certain TRBs if necessary, as specified in EASA AD 2021-0079.

The FAA is issuing this AD to detect and correct geometrical non conformities of the TRB root section. The unsafe condition, if not addressed, could result in crack initiation and TRB failure, and possibly result in loss of control of the helicopter. See EASA AD 2021-0079 for additional background information.

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

These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA about the unsafe condition described in its AD. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these helicopters. Except for minor editorial changes, this AD is adopted as proposed in the NPRM.

EASA AD 2021-0079 requires an inspection (dimensional check) to verify TRB conformity, and replacement of certain TRBs if necessary. EASA AD 2021-0079 also prohibits rework, repair, or modification of affected parts in the critical section (affected area of the TRB assembly root).

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 89 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.

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to DAI Model DA 42, DA 42 M-NG, and DA 42 NG airplanes with a certain fuel tank connection hose installed. The NPRM published in the Federal Register on November 3, 2021 (86 FR 60600). The NPRM was prompted by MCAI originated by the European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union. EASA issued EASA AD 2019-0218, dated September 3, 2019 (referred to after this as “the MCAI”), to address an unsafe condition on certain DAI Model DA 42, DA 42M, DA 42 M-NG, and DA 42 NG 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-2021-0952.

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 reviewed the relevant data and 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, except for an editorial correction to the Applicability section. Paragraph (c)(1) states the AD applies to the airplanes in paragraph (c)(1) “or” paragraph (c)(2) when it should state the AD applies to airplanes identified in both paragraphs.

The FAA reviewed Diamond Aircraft Mandatory Service Bulletin MSB 42-138/MSB 42NG-080, dated July 1, 2019 (issued as one document) published with Diamond Aircraft Work Instruction WI MSB 42-138/WI-MSB 42NG-080, Revision 0, dated July 1, 2019 (issued as one document) attached. This service information identifies the list of affected fuel tank connection hoses and also contains procedures for replacing the fuel tank connection hose and inspecting the main fuel tank chambers. 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 applies to the Model DA 42 M airplane and this AD does not because it does not have an FAA type certificate.

The service information specifies reporting information to DAI, and this AD does not require reporting.

The FAA estimates that this AD affects 192 airplanes of U.S. registry. The FAA estimates that it would take about 30 work-hours to do the actions of this AD and require a part costing $188. The average labor rate is $85 per work-hour. Based on these figures, the FAA estimates the cost to do the actions of this AD on U.S. operators to be $525,696 or $2,738 per airplane.

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. For the reasons discussed above, I certify 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 2021-0112, dated April 22, 2021 (EASA AD 2021-0112), to correct an unsafe condition for certain Airbus SAS Model A350-941 and -1041 airplanes.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus SAS Model A350-941 and -1041 airplanes. The NPRM published in the Federal Register on August 12, 2021 (86 FR 44319). The NPRM was prompted by a report indicating that during maintenance, a fuse pin retaining the MLGSS was found incorrectly engaged in the trunnion block and improperly secured with the associated retaining pin; this was due to incorrect installation during assembly. The NPRM proposed to require inspecting the fuse pins and associated retaining pins of the MLGSS for such discrepancies, and corrective action if necessary, as specified in EASA AD 2021-0112.

The FAA is issuing this AD to address incorrect fuse pin installations, which could lead to premature failure of the retaining pin and subsequent fuse pin migration and disconnection, and could ultimately lead to main landing gear collapse and possible damage to the airplane. See the MCAI for additional background information.

The FAA received comments from the Air Line Pilots Association, International (ALPA), who supported the NPRM without change.

The FAA received additional comments from Delta Air Lines (DAL). The following presents the comments received on the NPRM and the FAA's response to each comment.

DAL asked that the proposed AD include a statement that an “affected part” includes parts that are improperly engaged or incorrectly secured. DAL stated that the purpose of the inspection in EASA AD 2021-0112 is to inspect the affected parts for any discrepant conditions, in accordance with the instructions specified in Airbus Alert Operations Transmission (AOT) A57P016-21, dated April 1, 2021, which includes any incorrectly installed or missing trunnion block fuse pins for applicable Airbus SAS Model A350-941 and -1041 airplanes. DAL added that if, during accomplishment of this AOT, no discrepant conditions are found, then no further action is required. DAL noted that the MCAI's definition of “affected part” implies that the area will become an AD-related area for the rest of the life of the aircraft. Delta stated that it has added “AD affected no deviations” language to all AD-related aircraft maintenance manual (AMM) and illustrated parts catalog (IPC) areas. However, if there are no findings during the inspection, the area should revert back to a normal post-production non-AD area, and the language should not be added to the related AMM and IPC at every revision for the life of the aircraft.

The FAA does not agree with the commenter's request to refine the MCAI's definition of an affected part because this AD requires a one-time inspection only and that action is not effective for the life of the airplane. Correctly installed parts do not continue to be affected parts. Therefore, the FAA has not changed this AD in this regard.

DAL asked that the proposed AD clarify that the instructions for continued airworthiness (ICAs) are required per Section E of the repair instructions specified in Airbus AOT A57P016-21, dated April 1, 2021. DAL stated that per the inspection instructions detailed in the AOT, if there is a discrepant condition found during accomplishment of the inspection, all operators are to follow the referenced repair instructions to replace all six fuse pins within the trunnion block of the MLGSS. DAL noted that after the repair is accomplished, the ICAs require again inspecting the trunnion block for damage and replacing all six fuse pins at 14,400 flight cycles or 60,000 flight hours (in contrast to the current life limit for the fuse pins of 36,000 flight cycles or 150,000 flight hours).

The FAA acknowledges the commenter's request to clarify whether the ICA requirements in Section E of the repair instructions are required by this AD. In certain circumstances, the NPRM proposed corrective actions that include repair instructions for Model A350-900 airplanes (R57V-40112) and Model A350-1000 airplanes (R57V-40113), as specified in RC (required for compliance) paragraph 4.2.3 of Airbus AOT A57P016-21, dated April 1, 2021. However, the NPRM, EASA AD 2021-0112, and AOT did not expressly state what revision level of the repair instructions are mandatory. ICA requirements were added to a later revision of the repair instructions. By not mandating a specific revision of the repair instructions, operators can use any revision level to satisfy the requirements of this AD. Whichever revision level an operator chooses, the operator must use that revision level in its entirety. The FAA encourages affected operators to utilize the most current ICA for their respective aircraft condition. No changes have been made to this AD in this regard.

The FAA reviewed the relevant data, considered the comments 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 2021-0112 describes procedures for a detailed inspection for discrepancies (missing or migrated fuse pins, and fuse pins improperly secured with the associated retaining pin) in the left- and right-hand sides of the MLGSS trunnion block. The service information also describes procedures for corrective action (including replacement of discrepant fuse pins and the main landing gear forward pintle assembly). This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 17 airplanes 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 aircraft that might need these on-condition actions:

According to the manufacturer, some or all of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected operators. The FAA does not control warranty coverage for affected operators. As a result, the FAA has included all known costs in the cost estimate.

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:

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to Sikorsky Aircraft Corporation Model S-76D helicopters with a GPS TopStar 200 LPV receiver part number (P/N) C17149HA01 installed. The NPRM published in the Federal Register on November 16, 2021 (86 FR 63322). The NPRM was prompted by reports that certain Thales GPS SBAS receivers provided, under certain conditions, erroneous outputs on aircraft positions. The unsafe condition, if not addressed, could result in controlled flight into terrain and loss of control of the helicopter. Therefore, the NPRM proposed to require replacing each affected GPS receiver and prohibit installing an affected GPS receiver on any helicopter. The FAA is issuing this AD to address the unsafe condition on these products.

The European Aviation Safety Agency (now European Union Aviation Safety Agency) (EASA), which is the Technical Agent for the Member States of the European Union, issued EASA AD 2019-0004, dated January 11, 2019, and corrected on January 17, 2019 (EASA AD 2019-0004), to correct an unsafe condition for Thales AVS France SAS (Thales), formerly Thales Avionics SAS, GPS/SBAS receivers, Topstar 200 LPV, P/N C17149HA01 and C17149JA02, using SBAS, which are known to be installed on, but not limited to, certain Model ATR 42-500 and ATR 72-212A aeroplanes and Sikorsky Model S-76D helicopters. EASA advises of reports indicating that Thales GPS SBAS receivers provided, under certain conditions, erroneous outputs on aircraft positions. EASA AD 2019-0004 requires actions to prevent compromise of the safety margins when the receiver is used for Localizer Performance with Vertical guidance (LPV) and/or RNP-AR (Required Navigation Performance—Authorization Required) operations. Following the issuance of EASA AD 2019-0004, the FAA issued AD 2020-08-02, Amendment 39-21108 (85 FR 20586, April 14, 2020), to address the unsafe condition on these products.

After the issuance of EASA AD 2019-0004, EASA issued related EASA AD 2021-0013, dated January 13, 2021, in response to a software update that was developed to ensure correct navigational performance of certain Thales GPS SBAS receivers installed on ATR-GIE Avions de Transport Régional, formerly EADS ATR—Alenia, Aerospatiale Matra ATR—ALENIA, Aerospatiale—Alenia, Aerospatiale—Aeritalia, Model ATR 42-500 and ATR 72-212A aeroplanes. The FAA subsequently issued AD 2021-19-13, Amendment 39-21731 (86 FR 54801, October 5, 2021), to address the unsafe condition on these products.

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

The FAA reviewed the relevant data and 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. However, the FAA discovered an error in the U.S. fleet costs. The NPRM inadvertently stated the costs as $336,820; this final rule corrects those costs, which are $168,410 for the U.S. fleet. Except for the change to the U.S. fleet costs and minor editorial changes, this AD is adopted as proposed in the NPRM.

The FAA reviewed Sikorsky S-76D Helicopter Service Bulletin SB 76-017, Basic Issue, dated May 11, 2021 (SB 76-017). SB 76-017 specifies procedures for removing, updating, and installing GPS TopStar 200 LPV receivers. SB 76-017 also provides instructions for sending the GPS receiver(s) to Thales Authorized Repair Stations for the software update.

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

The FAA estimates that this AD affects 22 helicopters of U.S. Registry and that operators may incur the following costs in order to comply with this AD. Labor costs are estimated at $85 per work-hour.

Replacing two GPS receivers takes about 3 work-hours and parts cost about $7,400, for an estimated cost of $7,655 per helicopter and $168,410 for the 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 amend Class E airspace extending upward from 700 feet above ground level, and remove the Class E airspace extending upward from 1,200 feet above ground level to support IFR operations at Gold Beach Municipal Airport, Gold Beach, OR.

The FAA published a notice of proposed rulemaking (NPRM) in the Federal Register (86 FR 64835; November 19, 2021) for Docket No. FAA-2021-0956 to modify Class E airspace at Gold Beach Municipal Airport, Gold Beach, OR. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Subsequent to publication of the NPRM, the FAA was notified that it had inadvertently left out the proposed removal of the Class E airspace extending upward from 1,200 feet above the surface of the earth from the Class E airspace legal description. The FAA is removing this airspace area from the Class E legal description because the area is contained within the Rogue Valley Class E6 domestic en route airspace area, and duplication is not necessary. Also subsequent to publication of the NPRM, the FAA became aware that it had inadvertently left out the phrase “[Amended]” from line one of the proposed legal description. The FAA is amending the Class E airspace for Gold Beach Municipal Airport, and the final rule includes this phrase in line one of the legal description. Lastly, and subsequent to the publication of the NPRM, the FAA is amending the body of the Class E airspace legal description for Gold Beach Municipal Airport. The description was updated to more easily and accurately describe the amended airspace at the airport, while keeping the design of the airspace the same.

Class E5 and Class E6 airspace designations are published in paragraphs 6005 and 6006, respectively, 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 E airspace designations 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 Class E airspace extending upward from 700 feet above the surface of the earth at Gold Beach Municipal Airport, Gold Beach, OR.

This airspace is designed to contain departing IFR aircraft until reaching 1,200 feet above the surface and arriving IFR aircraft descending below 1,500 feet above the surface. To properly contain IFR operations at the airport, the radius of the airspace is increased from 6.3 miles to 7.2 miles and the extension northwest of the airport is removed. Additionally, terminal IFR operations east of the airport are not authorized, due to terrain. Because of this limitation, a portion of the Class E airspace east of the airport is removed. Finally, Class E airspace extending upward from 1,200 feet above the surface of the earth within a 15-mile radius of the airport is removed, as the area is contained within the Rogue Valley Class E6 domestic en route airspace area, and duplication is not necessary.

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 Coast Guard will enforce special local regulations in 33 CFR 100.703, Table 1 to § 100.703, Line No. 2 for the Bradenton Area River Regatta on February 12, 2022 from 10 a.m. to 5 p.m. This action is being taken to provide for the safety of life on navigable waterways during this event. Our regulation for marine events, Sector St. Petersburg, § 100.703, Table 1 to § 100.703, Line No. 2, § 100.703, specifies the location of the regulated area for the Bradenton Area River Regatta which encompasses portions of the Manatee River near Bradenton, FL. During the enforcement periods, if you are the operator of a vessel in the regulated area you must comply with directions from the Patrol Commander or any designated representative.

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

Following recent court rulings related to Outer Continental Shelf (OCS) activities the Coast Guard initiated a review of the agency's Floating OCS Facility (FOF) policies, procedures, and regulations. As part of this review, the Coast Guard tasked the National Offshore Safety Advisory Committee (NOSAC) with conducting a detailed review of Coast Guard OCS regulations. In March 2018 NOSAC provided the USCG with a final report containing recommendations on Coast Guard regulations applicable to OCS units operating on the U.S. OCS. 1 An OCS unit is any domestic or foreign OCS facility, vessel, rig, platform, or other vehicle. 2 One type of OCS unit is a “floating OCS facility,” or FOF. FOFs are buoyant facilities that are securely and substantially moored, such that they cannot be moved without special effort. 3 FOFs come in many different structural configurations with varying degrees of sea keeping capabilities. They can be either vessels or non-vessels. Based on NOSAC's recommendations and its own internal review, the Coast Guard determined that it needed to clarify what Coast Guard regulations are applicable to FOFs that are not vessels.

Specifically the Coast Guard determined that it needed to clarify: (1) Which FOFs are vessels and which FOF are non-vessel FOFs and (2) that non-vessel FOFs are not subject to vessel-manning requirements.

The Coast Guard has broad authority to regulate FOFs under the Outer Continental Shelf Lands Act, 43 U.S.C. 1331 et seq., and its implementing regulations at 33 CFR chapter I, subchapter N. FOFs that qualify as seagoing motor vessels may also be regulated by the Coast Guard under title 46 of the United States Code and associated implementing regulations. This document is issued in accordance with 5 U.S.C. 552(a)(1)(D) and 5 U.S.C. 553(b)(A).

The Coast Guard is announcing the availability of: (1) CG-OES Policy Letter 01-22, Determination of Whether a Floating Outer Continental Shelf Facility (FOF) is a Vessel. CG-OES 01-22 outlines the procedures for Coast Guard OCMIs to follow in order to determine if a particular FOF is a vessel or a non-vessel.

The term “vessel” is defined in the United States Code at 1 U.S.C. 3. As defined, the term captures every form of watercraft and artificial contrivance used, or capable of being used, as a means of transportation on water. In Lozman v. City of Riviera Beach, Fla., 568 U.S. 115 (2013), the Supreme Court of the United States held that to be a vessel under 1 U.S.C. 3, a structure's physical “characteristics and activities” need to be such that a “reasonable observer” would conclude that the structure was designed to a practical degree to carry “people or things” on the water. Rather than relying upon any single structural characteristic to reach its decision, the Court instead focused on the phrase “capable of being used as a means of transport[.]” Citing Stewart v. Dutra Constr. Co., 543 U.S. 481 (2005), the Court emphasized that for a structure to be considered “capable of being used for transport” it has to have a practical possibility of transporting people or goods over the water, not just be theoretically capable of doing so. This holistic test requires the fact finder to determine if the characteristics and activities of the structure would convince a reasonable observer that the watercraft is designed to a practical degree to carry people or things on the water.

In accordance with Lozman, to determine if an FOF is a vessel or a non-vessel, OCMIs must decide whether a particular FOF was designed to a practical degree for carrying people or things over the water. Due to the many existing configurations of FOFs and ever-increasing technology advancement in the energy exploration field, it is not possible to make a blanket determination for all FOFs. Determinations need to be conducted on a case-by-case basis. The policy letter directs OCMIs to look at the following factors when making determinations.

The policy letter makes clear that the above list is not exhaustive and the existence of any one of these factors does not necessarily mean that an FOF is a vessel. The OCMI must holistically consider all of the facts, including taking into account the physical characteristics and activities of the FOF, to determine if it is designed to a practical degree for carrying people or things over water.

In addition to being available along with other Coast Guard guidance documents at https://www.uscg.mil/guidance, a complete copy of CG-OES Policy Letter 01-22, Determination of Whether a Floating Outer Continental Shelf Facility (FOF) is a Vessel is available in the docket at https://www.regulations.gov and also at https://www.dco.uscg.mil/Our-Organization/Assistant-Commandant-for-Prevention-Policy-CG-5P/Commercial-Regulations-standards-CG-5PS/office-oes/.

The Coast Guard will no longer issue a Certificate of Inspection (USCG Form 841) to FOFs that are not vessels. Instead, OCMIs will issue non-vessel FOFs a Floating OCS Facility Determination Letter and a Floating OCS Facility Certificate of Inspection (FOF COI). The Facility Determination Letter will identify whether or not the unit is a vessel. The FOF COI letter will identify expectations the Coast Guard has for the inspection and maintenance of the particular non-vessel FOF, based on existing Coast Guard regulations. See the enclosures to CG-OES Policy Letter 01-22 for a sample Floating OCS Facility Determination Letter and a sample Floating OCS Facility Certificate of Inspection.

This change is being made to account for the fact that non-vessel FOFs are not subject to inspection under 46 U.S.C. 3301 and thus do not require a certificate of inspection under 33 U.S.C. 3309. The use of FOF Determination Letters and FOF COI Letters in place of the USCG Form 841 is in accordance with existing Coast Guard regulations. Section 143.120 of 33 CFR requires an OCMI to issue a “certificate of inspection” but does not require the use of USCG Form 841. FOFs that are U.S. documented vessels will be issued a USCG Form 841.

The OCMI's authority to place manning requirements on an FOF depends on whether the unit is a vessel.

Vessel FOFs. For FOFs that are U.S. documented vessels, consistent with current practice, their Coast Guard Certificate of Inspection (COI) (USCG Form 841) will contain the required manning. An OCMI may require manning of vessel FOFs under 46 U.S.C. 3301 and 3306 and regulations promulgated in 46 CFR, chapter I, subchapter B, part 15—Manning Requirements.

Non-vessel FOFs. OCSLA does not prescribe particular manning requirements with the exception of 43 U.S.C. 1356, which imposes U.S. citizenship requirements to units that conduct activities under OCSLA jurisdiction. For FOFs that are not vessels, OCMI manning authority is limited to the regulations promulgated under 33 CFR chapter I, subchapter N—Outer Continental Shelf Activities, which is limited to a Person In Charge.

In association with this clarification of requirements, the Coast Guard is canceling: USCG District 8 Policy Letter 08-2001, Licensing Requirements for personnel on Non-Self-Propelled Floating OCS Facilities.

The Coast Guard is announcing the availability of CG-MMC Policy Letter 01-22, Merchant Mariner Credential Endorsements for Service on Floating Outer continental Shelf (OCS) Facilities. This letter cancels Eighth District (D8) Policy Letter 08-2001, Licensing Requirements for Personnel on Non-Self Propelled Floating Outer Continental Shelf (OCS) Facilities, and outlines the new credentialing policies concerning personnel serving on FOFs. 4

Effective 30 days from the issuance of CG-MMC Policy Letter 01-22, the Coast Guard will no longer issue original MMC officer endorsements that are restricted to service on specific types of FOFs, referred to as Floating Offshore Instillations (FOI) in endorsements. This applies to the following endorsements:

• Offshore Installation Manager (Active Ballast FOI);

• Offshore Installation Manager (Passive Ballast FOI);

• Barge Supervisor (Active Ballast FOI);

• Barge Supervisor (Passive Ballast FOI);

• Ballast Control Operator (Active Ballast FOI); and

• Ballast Control Operator (Passive Ballast FOI).

The Coast Guard will continue to issue the following original endorsements to mariners meeting applicable service and training requirements specified in 46 CFR part 11:

• Offshore Installation Manager (OIM) [46 CFR 11.470]:

○ OIM Unrestricted;

○ OIM Surface Units on Location;

○ OIM Surface Units Underway;

○ OIM Bottom Bearing Units on Location; and

○ OIM Bottom Bearing Units Underway;

• Barge Supervisor (without restriction to specific MODU or FOF types) [46 CFR 11.472]; and

• Ballast Control Operator (without restriction to specific MODU or FOF types) [46 CFR 11.474].

There are currently 47 mariners who hold one or more of the endorsements listed above. Considering that some FOFs may be found to be vessels, not allowing these endorsements could result in taking something of present or potential value from the mariners who hold them. 5 Accordingly, the Coast Guard will continue to renew the endorsements listed above.

Mariners who served aboard FOFs that have been determined to not be vessels will need to renew their MMCs under provisions in 46 CFR 10.227(e) that are applicable to mariners who do not have evidence of at least one year of service during the past five years. Mariners who served on FOFs found to be vessels may use their service to renew their endorsements under 46 CFR 10.227(e)(1).

The Coast Guard can only credit seagoing service for qualifying for MMC endorsements if it was obtained on a vessel. 6 Accordingly, service on FOFs that are not vessels will not be accepted as service for qualifying for an original or raise of grade of an MMC endorsement. Service on FOFs that are not vessels may only be accepted if it is found to be “closely related service” as specified in 46 CFR 10.232(g) to renew an MMC.

The Coast Guard will discontinue approving stability and ballast control courses and courses that substitute for a Coast Guard administered examination that are valid only for the FOF endorsements noted in the second paragraph of section four above. These approved courses will not be renewed upon expiration. If a stability course or in lieu of examination course is approved for both an endorsement being discontinued and one or more of the endorsements described in 46 CFR 11.470, 11.472, or 11.474 the course approval will be amended to omit meeting requirements for the FOF endorsements noted above.

In addition to being available along with other Coast Guard guidance documents at https://www.uscg.mil/guidance, a complete copy of CG-MMC Policy Letter 01-22, Merchant Mariner Credential Endorsements for Service on Floating Outer Continental Shelf (OCS) Facilities, is available in the docket at https://www.regulations.gov and also at https://www.dco.uscg.mil/Our-Organization/Assistant-Commandant-for-Prevention-Policy-CG-5P/Commercial-Regulations-standards-CG-5PS/Office-of-Merchant-Mariner-Credentialing/CG-MMC-2/CG-MMC-2-New-Policies/.

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

The Tribe's Reservation is located in southeastern Montana and is adjacent to the Crow Indian Reservation and the State of Wyoming. On February 26, 2021, EPA proposed to approve a TIP submitted by the Tribe on September 27, 2017, as described in the proposal. 1 The TIP includes ambient air quality standards and provisions for an open burning permit program, enforcement and appeals, and emergency authority. The TIP is a regulatory program comprised of the Northern Cheyenne Clean Air Act (NCCAA). We proposed to approve the NCCAA under sections 110 and 301 of the CAA, and the relevant implementing regulations, as discussed in this document and in our February 26, 2021 proposal. These provisions establish a base TIP that is suitable for the Reservation, is within the Tribe's regulatory capacities, and meets all applicable minimum requirements of the CAA, the Tribal Authority Rule in 40 CFR part 49 (TAR), and other applicable CAA regulations.

For a more detailed description of the TIP, our evaluation of the TIP and supplemental information, and our rationale for our proposed action, please see the February 26, 2021 proposed rule, 86 FR 11674, which can be found in the docket for this action.

Our February 26, 2021 proposed rule provided for a 30-day comment period, which ended on March 29, 2021. We received nine public comment letters, each of which can be found in the docket for this action. Seven comments expressed general support for our proposed action and did not otherwise raise material issues that necessitate response. Here, we summarize and respond to significant comments.

Commenter 0007: The commenter offered support for approval of the Northern Cheyenne TIP and support for implementation plans generally. In particular, the commenter described TIPs as positive for the tribes and an indication that enforcement of TIPs will be successful and thorough. The commenter also stated that exposure to dangerous air pollution is dwindling, which can be attributed, in no small part, to implementation plans. The commenter stated that regulating air pollution within the borders of the Reservation is an important step to making the country more proactive against climate change. The commenter further summarized other supportive comments.

Nevertheless, the commenter stated that the industrial and manufacturing power plants that surround the Reservation have a major impact on the air quality of the Reservation, which is unfair to those who live on the Reservation but are not part of these industries. The commenter also identified “drawbacks” of TIPs—that TIPs focus on higher levels of air pollution as opposed to other smaller problems, and that TIPs require a lengthy administrative process, which does not lead to fast action to reverse the effects of climate change.

Response: We appreciate the commenter's support for the approval of the Northern Cheyenne TIP and general support for the regulation of air pollution through TIPs. The administrative process for TIP approval is governed by CAA sections 110 and 301 and corresponding regulations. 2 We explain elsewhere in this preamble that TIPs are not required to address each element under CAA section 110, but may instead include elements to address the specific air quality needs that a tribe has the capacity to manage. The commenter has not provided enough information regarding smaller air pollution problems that the commenter believes should be addressed in TIPs for us to respond further on that point.

Additionally, while we understand and appreciate the commenter's concerns with respect to climate change and agree that climate change is an important environmental problem, the purpose of this action is not to address the problem of climate change, but rather to approve the Tribe's plan to regulate certain air pollutants emitted by open burning. 3 Thus, consideration of climate change is outside the scope of our action. Likewise, the commenter's concerns regarding sources located outside the Reservation are also outside the scope of the action. The TIP applies within the exterior boundaries of the Reservation only. The Tribe is not required to address pollution from outside the Reservation in its submittal and EPA's task is to evaluate the program elements the Tribe has submitted. The commenter's concern with the administrative process for developing TIPs is also outside the scope of this action. We note that the process of having tribes decide when and how to develop TIPs gives tribes the authority over how to best protect air quality in Indian country, and the Northern Cheyenne Tribe fully supports approval of the TIP here.

Commenter 0009: The commenter offered support for the primary and secondary air quality standards established in the TIP, which are the same as EPA's national ambient air quality standards (NAAQS). However, the commenter stated that the TIP did not include “any protocols the Northern Cheyenne Tribe plans to implement to reach attainment.”  4 The commenter further asserted that CAA section 110(a)(2) requires that TIPs include control measures, means or techniques, and a monitoring program by which the Tribe will attain the standards, and that the TIP lacks these mechanisms.

Response: As an initial matter, the TIP does include measures to improve air quality, including, significantly, an open burning permit program. 5 However, the commenter is correct that the TIP does not include all elements listed in CAA section 110 for the implementation, maintenance, and enforcement of the air quality standards. Under the TAR, eligible Indian tribes have the flexibility to include in a TIP only those implementation plan elements that address their specific air quality needs and that they have the capacity to manage. Under this modular approach, the TIP elements that the tribe adopts must be “reasonably severable” from the package of elements that can be included in a whole TIP. 6 As provided in the TAR, “reasonably severable” means that the parts or elements selected for the TIP are not integrally related to parts not included in the TIP, and are consistent with applicable CAA and regulatory requirements. 7 Thus, TIPs are significantly different than state implementation plans because, while the Act requires states to prepare an implementation plan that meets all of the requirements of CAA section 110, an Indian tribe may adopt TIP provisions that address only some elements of CAA section 110. 8

EPA retains its general authority to directly implement CAA requirements in Indian country as necessary or appropriate to protect tribal air resources. 9 Thus, where a tribe chooses not to adopt a CAA program or adopts only a partial program, EPA may exercise its authority to issue such regulations as are necessary or appropriate to protect tribal air resources. This type of joint management allows tribes to focus on their specific air quality needs while ensuring adequate protection of tribal air resources.

At this time, the Northern Cheyenne Tribe opted to include in its TIP certain limited measures—an open burning permit program and related enforcement authority. This program and enforcement authority are severable from other CAA program elements because they do not depend on the inclusion of and are not integrally related to any other program elements. Additionally, as discussed further below, EPA has reviewed the open burning permit program and concluded that it supports the implementation, maintenance, and enforcement of the air quality standards. The open burning program is designed, in part, to control particulate matter emissions. Moreover, EPA has reviewed the enforcement authority included in the TIP and determined that it is sufficient to ensure enforcement of the NCCAA. Likewise, through the Tribe's treatment in a similar manner as a state (TAS) application, the Tribe has demonstrated that it is capable of implementing the open burning permit program and enforcement authorities. 10

Commenter 0009: The commenter also criticized the TIP's open burning program as inefficient and unduly burdensome. In particular, the commenter raised concerns that requiring a permittee to apply for a permit with the Tribe's Air Quality Administrator and wait for consultation with the Bureau of Indian Affairs and other agency personnel is inefficient. The commenter also stated that the burden placed on the Air Quality Administrator and Northern Cheyenne Tribal Court for “minute violations” is impractical and unnecessary. The commenter also stated that the size of the penalty for violations is too hefty, claiming that violations of the open burning program would subject individuals “to at least a five thousand dollar fine.” Furthermore, the commenter stated that there is no basis in the proposed rule for the finding that there is no information collection burden under the Paperwork Reduction Act. Finally, the commenter stated that the TIP lacks any statistics proving that the open burning that is the subject of the permitting program is any different from other burning not covered by the program. The commenter recommended that the Northern Cheyenne Tribe reconsider the open burn limits and exceptions, and initiate a simpler reporting and filing program, such as on-site permitting or virtual permitting.

Response: Under the TIP process, tribes decide how to structure permitting and enforcement programs submitted for approval in a TIP. This gives tribes the flexibility to balance the protection of tribal air quality and the administrative process involved in doing so. EPA supports tribal decisions on how best to protect tribal air quality, and the CAA does not condition a TIP's approval on its administrative efficiency or require that a tribe justify open burning limitations with statistics. EPA supports tribes implementing open burning permit programs to support air quality on reservations. 11

Here, the Tribe considered the level of administrative process to include in the TIP. EPA disagrees that the Northern Cheyenne Tribe's process is inefficient or will be problematic in practice. The Tribe indicates that it is already successfully implementing this process under tribal law, 12 and the program is similar to open burning programs that other tribes administer as part of approved TIPs and Federal Implementation Plans. 13 Concerning the commenter's assertion that violations of the open burning program would lead to excessive penalties, it is not accurate that a violator will be subject to at least a five thousand dollar fine. The NCCAA authorizes the Air Quality Administrator to fine violators “ up to $5,000 per day for each violation[,]”  14 and the Air Quality Administrator has the enforcement discretion to assess penalties below that maximum. EPA does not agree that this TIP should be disapproved because of concerns about the level of possible fines for violations.

EPA disagrees with the commenter's assertion that EPA's approval of the TIP will result in a “burden placed on the collection of information under the Paperwork Reduction Act.”  15 Broadly, the Paperwork Reduction Act provides for certain procedures relating to the “collection of information” by or for an agency, generally limited to identical questions posed to or identical reporting or recordkeeping requirements imposed on ten or more persons. 16 The information-related requirements of the NCCAA already exist as a matter of tribal law. EPA is not using identical questions to collect information from or imposing identical reporting or recordkeeping requirements on 10 or more persons as part of this action. This action does not impose information collection burdens prohibited by or contrary to the Paperwork Reduction Act.

Under CAA sections 110(o), 110(k)(3) and 301(d), and the TAR, EPA is approving the TIP submitted by the Tribe on September 25, 2017, as described in our February 26, 2021 proposal (86 FR 11674). For the reasons set forth in this document and in the February 26, 2021 proposed rule, we conclude that the TIP meets the applicable requirements of the CAA and EPA's implementing regulations.

In this document, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference the TIP amendments described in section III of this preamble. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 8 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by the EPA for inclusion in the TIP, have been incorporated by reference by the EPA into that plan, and are fully federally enforceable under section 110 and 113 of the CAA as of the effective date of the final rulemaking of the EPA's approval.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action approves laws of an eligible Indian tribe as meeting Federal requirements and imposes no additional requirements beyond those imposed by Tribal law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601, et seq. ). Because this rule approves pre-existing requirements under Tribal law and does not impose any additional enforceable duty beyond that required by Tribal law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (59 FR 22951, November 9, 2000), requires 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.” EPA has concluded that this rule will have tribal implications in that it will have substantial direct effects on the Tribe. However, it will neither impose substantial direct compliance costs on tribal governments, nor preempt tribal law. EPA is approving the Tribe's TIP at the request of the Tribe. Tribal law will not be preempted as the Tribe has already incorporated the TIP into Tribal Law on December 7, 2016. The Tribe has applied for, and fully supports, the approval of the TIP. This approval makes the TIP federally enforceable.

EPA worked and consulted with officials of the Tribe early in the process of developing these regulations. During the TAS eligibility process, the Tribe and EPA worked together to ensure that the appropriate information was submitted to EPA. The Tribe and EPA also worked together throughout the process of development and Tribal adoption of the TIP. The Tribe and EPA also entered into a criminal enforcement Memorandum of Agreement (MOA) during the TAS process, per 40 CFR 49.8.

This action does not have federalism implications because it does 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, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action approves Tribal rules implementing a TIP over areas within the exterior boundaries of the Tribe's Reservation, and does not alter the relationship or the distribution of power and responsibilities established in the CAA.

Executive Order 12898 establishes Federal executive policy on environmental justice. 17 Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA's objective in approving the TIP is to support the Tribe's efforts to protect the communities on the Reservation, where open burning operations and seasonal wildfires have been shown to contribute to exceedances of the particulate matter NAAQS. The impacts of this final rule are expected to be beneficial, rather than adverse, and its benefits are expected to accrue to communities on the Reservation.

In reviewing TIP submissions, EPA's role is to approve an eligible tribe's submission, provided that it meets the criteria of the CAA. In this context, in the absence of a prior existing requirement for the tribe to use voluntary consensus standards (VCS), EPA has no authority to disapprove a TIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a TIP submission, to use VCS in place of a TIP provision that otherwise satisfies the requirements of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). This action also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 11, 2022. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

Part 49 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:

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

Each state has a SIP containing the control measures and strategies to attain and maintain the national ambient air quality standards (NAAQS). Alaska establishes state air quality regulations in Alaska Administrative Code Title 18 Environmental Conservation, Chapter 50 Air Quality Control (18 AAC 50) and submits these regulations for EPA approval and incorporation by reference into the Alaska SIP in the Code of Federal Regulations (CFR) at 40 CFR part 52, subpart C.

On November 10, 2020, Alaska submitted revisions to the SIP and the EPA proposed to approve the changes on November 17, 2021 (86 FR 64105). 1 The reasons for approval are included in the proposed action and will not be restated here. The public comment period for the proposed action closed on December 17, 2021 and we received no comments. Therefore, we are finalizing the action as proposed.

The EPA is approving, and incorporating by reference, revisions to the Alaska SIP, submitted on November 10, 2020, as being consistent with Clean Air Act section 110 and part C and D requirements. Upon the effective date of this final action, the Alaska SIP will include the following regulations, state effective November 7, 2020:

• 18 AAC 50.015 Air Quality Designations, Classifications, and Control Regions;

• 18 AAC 50.030 State Air Quality Control Plan, except (a);

• 18 AAC 50.035 Documents, Procedures and Methods Adopted by Reference, except (a)(6), (a)(9), and (b)(4);

• 18 AAC 50.040 Federal Standards Adopted by Reference, except (a), (b), (c), (d), (e), (g), (j) and (k);

• 18 AAC 50.077 Standards for Wood-Fired Heating Devices, except (h);

• 18 AAC 50.205 Certification;

• 18 AAC 50.230 Preapproved Emission Limits;

• 18 AAC 50.250 Procedures and Criteria for Revising Air Quality Classifications;

• 18 AAC 50.311 Nonattainment Area Major Stationary Source Permits;

• 18 AAC 50.502 Minor Permits for Air Quality Protection;

• 18 AAC 50.540 Minor Permit: Application;

• 18 AAC 50.542 Minor Permit: Review and Issuance; and

• 18 AAC 50.990 Definitions.

In this document, the EPA is finalizing regulatory text in an EPA final rule that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the regulations described in section II of this preamble. The EPA has made, and will continue to make, these materials generally available through https://www.regulations.gov and at the EPA Region 10 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by the EPA for inclusion in the SIP, have been incorporated by reference by the EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rule of the EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation. 2

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

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

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

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

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

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

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

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

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

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

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

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the 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 April 11, 2022. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

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

On February 22, 2013, EPA issued a Federal Register notice of proposed rulemaking outlining EPA's policy at the time with respect to SIP provisions related to periods of startup, shutdown, or malfunction (SSM). EPA analyzed specific SSM SIP provisions and explained how each one either did or did not comply with the CAA with regard to excess emission events. 1 For each SIP provision that EPA determined to be inconsistent with the CAA, EPA proposed to find that the existing SIP provision was substantially inadequate to meet CAA requirements and thus proposed to issue a SIP call under CAA section 110(k)(5).

On June 12, 2015, pursuant to CAA section 110(k)(5), EPA finalized “State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown and Malfunction” (80 FR 33839, June 12, 2015), hereafter referred to as the “2015 SSM SIP Action.” The 2015 SSM SIP Action clarified, restated, and updated EPA's interpretation that SSM exemption and affirmative defense SIP provisions are inconsistent with CAA requirements. The 2015 SSM SIP Action found that certain SIP provisions in 36 states were substantially inadequate to meet CAA requirements and issued a SIP call to those states to submit SIP revisions to address the inadequacies. EPA established an 18-month deadline by which the affected states had to submit such SIP revisions. States were required to submit corrective revisions to their SIPs in response to the SIP calls by November 22, 2016. With regard to Montana, in the 2015 SSM Action EPA issued a SIP call for ARM 17.8.334 because the Agency determined that it was inconsistent with CAA requirements because it contained an automatic exemption for emissions during startup and shutdown events. The detailed rationale for issuing the SIP call to Montana can be found in the 2015 SSM SIP Action and preceding proposed action.

On July 6, 2016, the Governor of Montana submitted a SIP revision to EPA for approval that would remove ARM 17.8.334 from the SIP. 2 In a document published on April 6, 2017, EPA proposed to approve Montana's SIP revision. 3 As discussed in the proposal, EPA's proposed approval of the removal of ARM 17.8.334 from the Montana SIP was consistent with the Agency's 2015 SSM SIP Policy. A more detailed discussion of EPA's determination that Montana's SIP revision was adequate to correct the deficiency identified in the 2015 SSM SIP Action can be found in the proposed rule.

EPA issued a Memorandum in October 2020 (2020 Memorandum), which stated that certain provisions governing SSM periods in SIPs could be viewed as consistent with CAA requirements. 4 Importantly, the 2020 Memorandum stated that it “did not alter in any way the determinations made in the 2015 SSM SIP Action that identified specific state SIP provisions that were substantially inadequate to meet the requirements of the Act.” Accordingly, the 2020 Memorandum had no direct impact on the SIP call issued to Montana in 2015. It also did not alter EPA's prior proposal from 2017 to approve the Montana SIP revision at issue in this action. The 2020 Memorandum did, however, indicate EPA's intent at the time to review SIP calls that were issued in the 2015 SSM SIP Action to determine whether EPA should maintain, modify, or withdraw particular SIP calls through future agency actions.

On September 30, 2021, EPA's Deputy Administrator withdrew the 2020 Memorandum and announced EPA's return to the policy articulated in the 2015 SSM SIP Action (2021 Memorandum). 5 As articulated in the 2021 Memorandum, SIP provisions that contain exemptions or affirmative defense provisions are not consistent with CAA requirements and, therefore, generally are not approvable if contained in a SIP submission. This policy approach is intended to ensure that all communities and populations, including minority, low-income and indigenous populations overburdened by air pollution, receive the full health and environmental protections provided by the CAA. 6 The 2021 Memorandum also retracted the prior statement from the 2020 Memorandum of EPA's plans to review and potentially modify or withdraw particular SIP calls. That statement no longer reflects EPA's intent. EPA intends to implement the principles laid out in the 2015 SSM SIP Action as the Agency takes action on SIP submissions, including Montana's SIP submittal provided in response to the 2015 SIP call for which EPA has already proposed approval. Consistent with that stated EPA intent and the return to the policy outlined in the 2015 SSM SIP Action, EPA is proceeding to take final action on its 2017 proposal to approve the Montana submittal, as described in the remainder of this document.

The comment period for EPA's April 6, 2017 notice of proposed rulemaking was open for 30 days. Notably, although over four years have elapsed since the comment period closed, EPA is taking this final action based on comments received during that comment period. No additional comment period is needed because nothing in the intervening time period—including the issuance and subsequent withdrawal of the 2020 Memorandum changed the basis for EPA's proposed action. Accordingly, the April 6, 2017 document provided the public with a full opportunity to comment on the issues raised by the proposed action. EPA received one adverse comment on this proposed action from a group called “The SSM Coalition.” EPA also received a comment from an anonymous commenter expressing support for approval of the proposed action.

Comment: The SSM Coalition did not discuss the details of EPA's proposed action on Montana's SIP, but more generally argued that it would be inappropriate for EPA to take final action on any SIP revision driven by the interpretations set forth in the 2015 SSM SIP Action, including the Montana proposal. The commenter referenced consolidated challenges to the 2015 SSM SIP Action filed in the D.C. Circuit ( Walter Coke, Inc., et al. v. EPA, D.C. Cir. No. 15-1166), specifically citing EPA's April 18, 2017 motion asking the court to indefinitely postpone the oral argument so that new-at-the-time EPA political leadership would have adequate time to fully review the 2015 SSM SIP Action. The commenter asserted that EPA should defer action on the Montana SIP because, at the time of EPA's proposed approval of the Montana submission, EPA was reviewing the 2015 SSM SIP Action and the D.C. Circuit had not ruled on the challenges to the rule. The SSM Coalition's full comment can be found in the docket for this action.

EPA response: The Agency acknowledges that there exist pending challenges to the 2015 SSM SIP Action in the court. However, there is no requirement or expectation that EPA must postpone action while awaiting a court decision. Montana has submitted a SIP revision to the Agency that is fully approvable for the reasons outlined in the proposal document. As a result, EPA has determined that it is appropriate to take action to approve the State's SIP revision in accordance with applicable CAA requirements. Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). The commenter has pointed to no alleged deficiency or other aspect that would lead the Agency to determine that the SIP revision should be disapproved or that full approval of the SIP revision is not otherwise appropriate.

As outlined in EPA's 2015 SSM SIP Action, and recently reaffirmed in the 2021 Memorandum, EPA is implementing policy consistent with that outlined in the 2015 SSM SIP Action. That policy aligns with previous court decisions, including the U.S. Court of Appeals for the District of Columbia Circuit-issued ruling in 2008 that found that inclusion of SSM exemptions in CAA section 112 standards is not allowed under the CAA due to the generally applicable definition of emission limitations. 7 It was in light of the 2008 court case, as well as concerns about the public health impacts of SSM, that led EPA in its 2015 action to clarify and update its SSM policy (2015 SSM Policy) to indicate that automatic exemptions like the one at issue in today's action will generally be viewed as inconsistent with CAA requirements.

As the commenter noted, an April 18, 2017 motion by EPA asked the court to indefinitely postpone the oral argument so that new-at-the-time EPA political leadership would have adequate time to fully review the 2015 SSM SIP Action.

The comments regarding EPA' 2017 motion indicating that it is reviewing the 2015 SSM action are now moot. The D.C. Circuit lifted the abeyance on the litigation concerning the 2015 SSM SIP Action on December 17, 2021. As outlined in EPA's request to lift the abeyance  8 and in the 2021 Memorandum, EPA is no longer reviewing the 2015 SSM Action. Under the 2021 Memorandum, EPA reinstated its prior policy that SIP provisions that contain exemptions or affirmative defense provisions are not consistent with CAA requirements and, therefore, generally would not be approvable if included in a SIP submission. The 2021 Memorandum notes, among other provisions, CAA section 110(l)'s procedural requirements governing SIP amendments, section 302(k)'s requirement that all emission limitations apply on a “continuous” basis, and the substantive stringency requirements applicable to emission limitations pursuant to sections 165, 172, and 173.

For the reasons explained in the 2017 proposal, EPA is fully approving Montana's July 6, 2016 SIP submission removing ARM 17.8.334 from the Montana SIP. The Agency's approval of this submission fully corrects the inadequacies in Montana's SIP that were identified in the EPA's 2015 SSM SIP Action.

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference ARM regarding the removal of 17.8.334 from Montana's SIP, as discussed in section I of this preamble. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 8 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the State implementation plan, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 9

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

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

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

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

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

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

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

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

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

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

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

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 11, 2022. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

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

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

The SUPPLEMENTARY INFORMATION section is arranged as follows:

On February 19, 2021 (86 FR 10227), the Environmental Protection Agency (EPA) published a Notice of Proposed Rulemaking (NPRM) in which the EPA proposed to make a technical correction adding into the CFR the inadvertently omitted Best Available Retrofit Technology (BART) table containing the potential to emit (PTE) limits necessary to satisfy the Virgin Islands' BART obligation.

On October 22, 2012, EPA published a final rule promulgating a Federal Implementation Plan (FIP) to address regional haze obligations for the Territory of the United States Virgin Islands. (77 FR 64414). EPA determined that certain emission limits for sources of visibility impairing pollutants in the Virgin Islands were necessary to satisfy the requirements of the Clean Air Act and EPA's rules concerning progress towards the national goal of preventing any future and remedying any existing man-made impairment of visibility in mandatory Class I areas (also referred to as the “regional haze program”). In that action, however, EPA erroneously failed to incorporate into the CFR certain emission limits that had been noticed in the proposed rule (77 FR 37842, June 25, 2012) and which were included in docket EPA-R02-OAR-2012-0457 accompanying that proposed rule. 1 Specifically, EPA had determined that no additional controls were needed to satisfy the Best Available Retrofit Technology (BART) requirement of the Regional Haze Rule, and therefore that the subject-to-BART units' existing PTE limits would be incorporated into the Virgin Islands' FIP. See 77 FR 37856. EPA is now making a technical correction to incorporate the table containing the PTE limits necessary to satisfy the Virgin Islands' BART obligation into the CFR.

This rule does not reopen the previous determination that the PTE limits contained in the docket for the 2012 final rule represent BART for the units determined to be subject-to-BART; this action merely corrects an inadvertent omission in a previous rulemaking. This correction is not intended to address current or changed circumstances at the subject-to-BART units, but merely clarifies what was intended to be included in the CFR pursuant to the 2012 FIP.

In response to the EPA's February 19, 2021 proposed correction of the Virgin Islands' FIP, the EPA received comments from one commenter, Limetree Bay Refining, LLC and Limetree Bay Terminals, LLC (together “Limetree” or “the commenter”) and is providing responses to the comments that were received. The specific comments may be viewed under Docket ID Number EPA-R02-OAR-2019-0674 on the https://www.regulations.gov website.

Comment 1: The commenter argues that correcting the erroneously omitted BART Measures by adding the provisions to the CFR is not a technical correction and that it imposes new limits. The commenter asserts that, even if EPA had some intention of promulgating such limits in 2012 when it promulgated the Federal Implementation Plan (FIP) to address regional haze in the Virgin Islands, it did not do so. The commenter contends that the proposed rule would therefore, for the first time, impose BART emission limitations on the Limetree facility.

To be effective and enforceable, commenter states, the promulgation of the proposed limits must comply with public notice and comment requirements. The commenter maintains that the 2012 Proposed Rule described various proposed BART determinations for sources in the Virgin Islands that may be subject to BART, but did not propose measures to translate those determinations into enforceable limitations.

The commenter asserts that the enforceable language now proposed by the EPA is nowhere to be found in the 2012 rulemaking record, neither in the Proposed Rule or Final Rule, nor in any docketed supporting document.

Response: This rule does not reopen the previous determination that the PTE limits contained in the docket for the 2012 final rule represent BART for the units determined to be subject-to-BART. This action merely corrects an inadvertent omission in a previous rulemaking in which EPA intended to, but did not, include those PTE limits in the Virgin Islands' FIP. Included in the 2012 FIP docket, EPA-R02-OAR-2012, are two documents that include the PTE limits for HOVENSA, EPA-R02-OAR-2012-007 and EPA-R02-OAR-2012-008. These limits represented current operations at the time and were determined to constitute BART in the 2012 FIP.

The commenter is correct that inserting the inadvertently omitted BART Measures, specifically the emission limitations for SO 2 , NO X , and PM, into the CFR are the first codification of these requirements. However, the commenter is incorrect that those limits were absent from the 2012 rulemaking record and that EPA did not intend to put these limits in the FIP in 2012. See 77 FR 37842, 37856. To the contrary, the administrative record documents EPA's intention for emission limitations and specifically references the applicability to the commenter's facility. At page 37856 of the final rule, EPA asserts, “[a]s such, EPA's Federal plan includes the establishment of emission limits for SO 2, NO X , and PM equivalent to the potential to emit (PTE) for each unit subject to BART, as derived from HOVENSA's permit limit conditions.” BART is defined in EPA's regulations as an emission limit, 40 CFR 51.301. It is not possible to satisfy the BART requirements without including an emission limit reflecting the BART determination(s) in the applicable implementation plan (in this case, in the Virgin Islands' FIP). See also 40 CFR 51.308(e)(2) (“The State must submit an implementation plan containing emission limitations representing BART. . . .”). The commenter's contention that EPA did not intend to promulgate emission limits in the FIP reflecting the BART determinations implies that EPA did not intend to satisfy the BART requirement for the source and is therefore clearly incorrect. Additionally, the BART emission limits merely reflect preexisting (as of 2012) PTE limits to which the units were already subject. Therefore, while this action will put the limits in the FIP for the first time, it does not represent the first time the source has had to comply with the relevant limits.

This technical correction remedies the inadvertent omission of the BART limits in the CFR. EPA provided opportunity for public comment on its determination that the subject-to-BART units' existing PTE limits represented BART in the 2012 FIP rule making. See 77 FR 37842, 37856 (June 25, 2012). The agency further provided an opportunity for public comment on whether the PTE limits contained in the notice of proposed rulemaking for this action were the limits EPA determined to be BART in 2012. 86 FR 10227, 10227 (Feb. 19, 2021). EPA has thus provided public notice of and an opportunity to comment on the limits it is incorporating into the Virgin Islands' FIP.

Comment 2: The commenter states that EPA Region 2 did not work with Limetree to coordinate these limits. The commenter asserts that EPA also does not explain how “maximum transparency” was served by its failure to provide Limetree, the sole affected party, any notice of this proposal prior to its publication in the Federal Register .

Response: EPA is not proposing to change or reopen the BART determinations made in the 2012 FIP that were based on emission limits that were already in place for HOVENSA at the time. EPA provided opportunity for public comment on the already established BART in the 2012 FIP rulemaking. See 77 FR 37842, 37856 (June 25, 2012). EPA is merely making a technical correction that takes those same PTE limits, which were determined to be then-current operations, and codifies those limits in the CFR. This rulemaking does not revisit or change the 2012 determinations, which were made pursuant to a notice and comment rulemaking process. See 77 FR 37842, 37856. HOVENSA, and others, commented during that rulemaking. See 77 FR 64414, 64415-20.

With respect to commenter's statement that it did not receive any notice of this proposal prior to its publication in the Federal Register , consistent with CAA Section 307(d) and general rulemaking processes, the proposal being finalized by this action, on which the commenter commented, was the advance notice. The proposal included the establishment of a rulemaking docket and provided for the acceptance of written comments, data, or other documents from “any person.”

Comment 3: The commenter argues that it is clear from the record that the omission of any enforceable limits was not inadvertent, but rather EPA's intent was to promulgate the restart notice requirement at 40 CFR 52.2781(d)(4) in lieu of any specific BART limitations. The commenter asserts that the restart notice procedure is the appropriate mechanism for EPA to determine whether the FIP should be revised, and any revision is required to be promulgated through full notice and comment procedures. The commenter states that the proposed “correction” fails to meet the process required by 40 CFR. 52.2718(d)(4).

Response: The restart notice requirement pertains to the reasonable progress requirements, not to BART. The commentor is erroneously conflating BART with reasonable progress. The commenter is incorrect that the restart notice requirement was intended to be in lieu of BART. See 77 FR 37842.

The commenter conflates two distinct sets of regional haze requirements: Reasonable progress and BART. States' regional haze implementation plans are required to include BART emission limits pursuant to 40 CFR 51.308(e). EPA made BART determinations and intended to promulgate BART limits, which were to be equivalent to existing PTE limits for the subject-to-BART sources, in the FIP. 77 FR 37856. The passages from EPA's rulemaking cited by commenter refer to EPA's determinations and requirements pursuant to a different set of regulatory requirements, i.e., the requirements for determining the measures in addition to BART that are necessary to make reasonable progress. Reasonable progress is governed by the requirements of 40 CFR 51.308(d). The restart notice requirement pertains to the reasonable progress. See 40 CFR 52.2781(d)(4) (upon receiving startup notification and information from the source, “EPA will revise the FIP as necessary, after public notice and comment, in accordance with the regional haze requirements including the `reasonable progress' provisions in 40 CFR 51.308(d)(1). ”) (emphasis added).

Unrelated to the technical correction in this action, in a letter dated June 10, 2019, EPA responded to Limetree's restart notice, dated June 2, 2019, explaining that, upon restart, the 2012 FIP requires the EPA to assess whether additional control measures are warranted to meet regional haze requirements, including the “reasonable progress” provisions in 40 CFR 51.308(d)(l). 40 CFR 52.2782(d)(3)-(4). Limetree will be consulted and included in the process of assessing whether new control measures are warranted upon restart.

As explained in the response to the first comment, above, in the 2012 FIP, EPA determined that current operations, PTE limits at the time, represented BART. EPA determined BART for each BART-eligible source using the methodology in the Guidelines for Best Available Control Retrofit Technology (BART) Determinations under the Regional Haze Rules, 40 CFR part 51, Appendix Y. This action proposes to correct the EPA's failure to codify in the CFR the PTE limits that constituted current operations at the time and were determined to represent BART in the 2012 FIP.

Comment 4: The commenter objects to the “arbitrary and extremely limited scope” of comments that EPA will allow, allowing comment on the narrow issue of whether the limits in the correction are the limits that EPA determined to be BART in the 2012 action. Limetree questions how this serves EPA's stated goal of “maximum transparency.” The commenter states that EPA must then provide reasonable opportunity to comment on the full scope of the proposed rule, including whether any proposed limits represent BART for units determined to be subject-to-BART.

Response: As explained in the response to the first comment, above, EPA is not reopening any determinations previously made in its 2012 FIP. The scope of this action is not to revisit the BART determination itself, but to merely make the technical correction of adding the emission limit reflecting the existing BART determination to the CFR. EPA determined in 2012 that current operations, PTE limits at the time, represented BART. EPA determined BART for each BART-eligible source using the methodology in the Guidelines for Best Available Control Retrofit Technology (BART) Determinations under the Regional Haze Rules, 40 CFR part 51, Appendix Y. EPA sought public comment on the BART determinations and thus satisfied the notice-and-comment requirement in the 2012 proposed rule. 77 FR 37857. Today's action is simply to put the emission limits reflecting the already-finalized BART determinations in the FIP. It is reasonable for EPA to limit the scope of comment consistent with the scope of the action being taken.

Comment 5: Limetree states that it objects to EPA not considering current conditions and changed circumstances. Limetree asserts that previous BART determinations are no longer reliable, and alternatives are conceivable.

Response: This action is merely to correct an error made in 2012, when EPA intended to put the source's preexisting emission limits in the FIP. The BART limits are intended to reflect the determination that was made based on the circumstances that existed in 2012. As expressed in EPA's 2012 rulemaking, current conditions and changed circumstances will be considered in the context of determining whether any additional measures, on top of the BART emission limits, are necessary pursuant to the reasonable progress requirements. See 40 CFR 52.2781(d)(3) and (4); 77 FR 37850. Limetree will be consulted in any future planning for regional haze that impacts the source, which is a matter beyond the scope of this technical correction.

If Limetree has made any significant modifications or changes to any units, that is not within the scope of this technical correction. This technical correction merely takes the HOVENSA BART determinations established in the 2012 FIP and codifies the same determinations in the CFR. Any restarts, changes, modifications, or reconfigurations in operation will be addressed through the restart notice steps and the separate reasonable progress requirements. The reconfiguration of the facility is not the subject of this action which merely corrects an omission in the 2012 FIP.

Comment 6: The commenter states that BART limits would affect operations of the refinery, which was recently reconfigured at considerable expense in reliance upon the existing regulatory requirements and the utility of its permits.

The commenter maintains that EPA must specifically allow comment on the reliance interests that arise with changed circumstances, as well as the policy considerations addressing this issue that EPA is required to identify in a proposed rule. The commenter asserts that the FIP has been in place since 2012, yet not only does the proposed rule fail to assess the relevant reliance interests, it also fails to consider any alternative courses of action. According to the commenter, alternatives are thus plainly conceivable and, under the Supreme Court's DACA decision, EPA is required to assess them.

Response: Although the commenter is correct that the Virgin Islands' FIP promulgated in 2012 did not contain emission limits reflecting BART, the refinery was nonetheless subject to those same emission limits by virtue of their existence in the source's preexisting permits. See 77 FR 37856 (Federal plan was to include emission limits “equivalent to the potential to emit (PTE) for each unit subject to BART, as derived from HOVENSA's permit limit conditions”). It therefore is not clear how simply codifying the same limits in an additional instrument would necessitate a change in the source's operations. That is, it is not clear how this action implicates Limetree's reliance interests. The commenter has offered no factual support for the assertion that it relied on the absence of BART limits in the Virgin Islands' FIP and that incorporating those limits now would significantly affect the utility of the sources' permits. Moreover, the commenter fails to explain how it has a reliance interest in a clerical error made by the agency, particularly where it was clear from the record for the 2012 rule that EPA intended to impose BART limits on this source.

The commenter alleges that U.S. Department of Homeland Security et al. v. Regents of the University of California et al., 140 S.Ct. 1891 (2020) has application to the instant rulemaking because the inadvertent omission of a regulatory provision has allegedly resulted in the commenter relying on a false perception that no BART emission limitations were in place for the HOVENSA facility. The potential existence of BART alternatives is not under consideration because any rational analysis of the 2012 rulemaking would indicate that the previously applied limitations were to be continued but were (as reiterated throughout) erroneously omitted.

As explained above, to the extent the source's operations have changed since 2012, it was and continues to be EPA's intent to address any changes in circumstances via the process laid out in 40 CFR 52.2781(d)(4) as appropriate. It is clear, however, that EPA intended to include BART emission limitations for the source in the FIP in 2012 and that such limits should have applied starting at that time.

The EPA is finalizing a technical correction to incorporate the erroneously omitted table containing the PTE limits necessary to satisfy the Virgin Islands' BART obligation into the CFR.

This action is not a significant regulatory action under the terms of Executive Order 12866 and was, therefore, not submitted to the Office of Management and Budget (OMB) for review. This final rule is a technical correction.

This action does not impose an information collection burden under the provisions of the PRA. Under the PRA, a “collection of information” is defined as a requirement for “answers to * * * identical reporting or recordkeeping requirements imposed on ten or more persons * * *.” 44 U.S.C. 3502(3)(A). The action does not impose any new obligations or new enforcement duties on any state, local or tribal government or the private sector. This final rule is a technical correction.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, EPA concludes that the impact of concern for this rule is any significant adverse economic impact on small entities and that the agency is certifying that this rule will not have a significant economic impact on a substantial number of small entities if the rule has no net burden on the small entities subject to the rule. This action merely adds the erroneously omitted table to the CFR, it does not change any determination included in the FIP. We have therefore concluded that this action will have no net regulatory burden for all directly regulated small entities.

This action does not contain any unfunded mandates, as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal government or the private sector.

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

This action does not have tribal implications as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments. Thus, Executive Order 13175 does not apply to this rule.

This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children.

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 believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). Through this action, the EPA is adding the erroneously omitted table to the CFR; it does not change any determination included in the FIP. This action does not remove any of the prior rule's environmental or procedural protections.

This rule is exempt from the CRA because it is a rule of particular applicability.

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 11, 2022. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for 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 CAA section 307(b)(2).

40 CFR part 52 is amended as follows:

Throughout this document wherever “we,” “us,” or “our” is used, we mean the U.S. EPA. The information in this SUPPLEMENTARY INFORMATION section of this preamble is organized as follows:

The EPA is finalizing approval of a Clean Air Act (CAA) section 176A petition submitted by the state of Maine on February 24, 2020. In the petition, Maine requested that the EPA remove the state of Maine from the Ozone Transport Region (OTR) except for 111 towns and cities comprising the Androscoggin Valley, 1 Down East  2 and Metropolitan Portland  3 Air Quality Control Regions, commonly referred to as the “Portland and Midcoast Ozone Areas.” Maine contended that emissions from northern and eastern Maine do not significantly contribute to ozone nonattainment in other states nor do they interfere with maintenance of the ozone National Ambient Air Quality Standards (NAAQS) in those Maine municipalities that would remain in the OTR. Therefore, the state asserted that removing these areas from the OTR would not degrade the air quality in Maine or in any other state. The petition included monitoring data and technical analyses to support a demonstration that the areas requested to be removed from the OTR are in attainment with the ozone NAAQS and that emissions from these areas do not significantly contribute to ozone nonattainment in any area of the OTR. For the reasons detailed in this notice, the EPA is finalizing approval of the petition on the basis that the portion of the state requested to be removed from the OTR does not contribute to a violation of any ozone standard in any area of the OTR, and that further control of emissions from that portion of Maine will not significantly contribute to the attainment of any ozone standard in any area of the OTR.

Section 176A(a) of the CAA provides the Administrator with the authority to develop transport regions for particular pollutants where the Administrator determines that interstate transport of air pollutants from one or more states contributes significantly to violations of air quality standards in one or more other states. In the 1990 CAA Amendments, Congress created the OTR by statute under CAA section 184(a) to address the interstate transport of ozone pollution in the Northeast and Mid-Atlantic regions of the United States (U.S.).

The creation of an interstate transport region requires establishing a transport commission with representatives from each state who make recommendations to mitigate interstate pollution. Model rules and programs designed through the OTC (Ozone Transport Commission) may be adopted by the individual states through their own rulemaking processes. Under CAA section 184(c), the OTC may petition the EPA to approve additional control measures to be applied within all or part of the transport region. Maine seeks to remove portions of the state from the OTR, thereby releasing those areas from OTC recommendations and applicable control requirements established under CAA section 184, effective 30 days after the date of publication of this notice. 4

Section 176A(a)(1) of the CAA provides the Administrator with authority to “add any state or portion of a state to any [transport] region . . . whenever the Administrator has reason to believe that the interstate transport of air pollutants from such state significantly contributes to a violation of the standard in the transport region.” Conversely, CAA section 176A(a)(2) allows the Administrator to “remove any state or portion of a state from [a transport] region whenever the Administrator has reason to believe that the control of emissions in that state or portion of the state . . . will not significantly contribute to the attainment of the standard in any area in the region.”

In making this final decision, the EPA reviewed the petition from Maine, the public comments received, the relevant statutory authorities and other relevant materials. Accordingly, the EPA grants the CAA section 176A petition from Maine.

Ground-level ozone causes a variety of negative effects on human health, vegetation, and ecosystems. In humans, acute and chronic exposure to ozone is associated with premature mortality and several morbidity effects, such as asthma exacerbation. In ecosystems, ozone exposure may cause visible foliar injury, decrease plant growth, and affect ecological community composition. Ground-level ozone is not emitted directly into the air. Rather, it is a secondary air pollutant created by chemical reactions between nitrogen oxides (NO X ) and volatile organic compounds (VOCs) in the presence of sunlight. These precursor emissions can be transported downwind directly or, after transformation in the atmosphere, as ozone. As a result, ozone formation, atmospheric residence, and transport can occur on a regional scale ( i.e., hundreds of miles).

The EPA has regulated ozone pollution and the precursor emissions that contribute to ozone for the last five decades. 5 Currently, there are two NAAQS in effect for ozone. 6 On March 12, 2008, the EPA promulgated a revision to the ozone NAAQS, lowering both the primary and secondary standards to 75 parts per billion (ppb). 7 On October 1, 2015, the EPA lowered the primary and secondary standards to 70 ppb. 8

In accordance with CAA section 107(d), the EPA designates areas as “attainment” (meeting the standard), “nonattainment” (not meeting the standard) or “unclassifiable” (insufficient data to classify). States with areas designated as nonattainment must develop and submit SIPs to the EPA with the goal of attaining and maintaining the level of the NAAQS by the applicable attainment deadline. In this way, the EPA and states work collaboratively to establish and implement nonattainment area planning requirements that are designed to bring areas into attainment of the NAAQS by the applicable attainment deadline. A key step in ensuring that areas attain and maintain ozone NAAQS is to assess and understand the potential for ozone source formation in a given area, including the potential for upwind states' emissions to impact ozone formation in downwind states.

Subpart 1 of part D of title I of the CAA provides the general plan requirements for designated nonattainment areas. This subpart includes provisions governing the development of transport regions to address the interstate transport of pollutants that contribute to NAAQS violations. In particular, section 176A(a) of the CAA provides that, on the EPA's own motion or by a petition from the Governor of any state, whenever the EPA has reason to believe that the interstate transport of air pollutants from one or more states contributes significantly to a violation of the NAAQS in one or more other states, the EPA may establish, by rule, a transport region for such pollutant that includes such states. The provision further provides that the EPA may add any state or portion of a state to any transport region whenever the Administrator has reason to believe that the interstate transport of air pollutants from such state significantly contributes to a violation of the standard in the transport region.

Section 176A(b) of the CAA provides that when the EPA establishes a transport region, the Administrator shall establish an associated transport commission, comprised of (at a minimum) the following: The Governor or her or his designee of each covered state, the EPA Administrator or a designee, the Regional EPA Administrator or a designee, and an air pollution control official appointed by the Governor of each state. The purpose of the transport commission is to assess the degree of interstate transport throughout the transport region and assess and recommend control strategies to the EPA to mitigate such interstate transport.

Subpart 2 of part D of title I of the CAA provides plan requirements specific to the ozone NAAQS. Consistent with CAA section 176A, found in subpart 1, subpart 2 includes specific provisions focused on the interstate transport of ozone. CAA section 184(a) establishes a single transport region for ozone—the OTR—comprising the states of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, and the Consolidated Metropolitan Statistical Area for the District of Columbia, which includes certain portions of northern Virginia. The Virginia counties and cities included in the OTR are Arlington County, Fairfax County, Loudoun County, Prince William County, Stafford County, Alexandria City, Fairfax City, Falls Church City, Manassas City, and Manassas Park City.

Section 184(b) of the CAA establishes specific control requirements that each state in the OTR is required to implement within the state, including certain controls on sources of NO X and VOCs. These control requirements are required to be implemented statewide in any state included within the OTR, regardless of ozone attainment status. 9 Under CAA section 184(b)(1)(A), OTR states must include enhanced vehicle emissions inspection and maintenance (I/M) programs in their SIPs. 10 Under CAA section 184(b)(2), major stationary sources of VOCs in the OTR are subject to the same requirements that apply to major sources in designated ozone nonattainment areas classified as Moderate. 11 Thus, the state must adopt rules to apply nonattainment new source review (NNSR) and reasonably available control technology (RACT) (pursuant to CAA section 182(b)(2)) provisions for major VOC sources. Under CAA section 184(b)(2) states must also implement Stage II gasoline refueling vapor recovery programs, incremental to vehicle Onboard Refueling Vapor Recovery achievements, or measures that achieve comparable emissions reductions for both attainment and nonattainment areas. 12

Section 182(f) of the CAA requires states to apply the same requirements to major stationary sources of NO X as are applied to major stationary sources of VOCs under subpart 2. Thus, the same NNSR and RACT requirements that apply to major stationary sources of VOC in the OTR also apply to major stationary sources of NO X . 13 CAA section 182(f) provides for a NO X waiver, or an exemption to the NO X requirements, where the Administrator determines that such NO X reductions would not contribute to the attainment of the NAAQS in an area. Areas granted a NO X waiver under CAA section 182(f) may be exempt from certain requirements of the EPA's motor vehicle I/M program regulations and from certain federal requirements of general and transportation conformity. 14

The EPA proposed to interpret the key terms in CAA section 176A(a)(2) ( i.e., “control of emissions . . . will not significantly contribute to the attainment of the standard” and “in any area in the region”) within the context of and consistently with other parts of the CAA that govern the interstate transport of ozone pollution, taking into account relevant facts and circumstances and the EPA's past approaches to addressing interstate ozone transport. Specifically, because of CAA section 176A(a)(2)'s use of the phrase “significantly contribute to [ ] attainment,” the EPA proposed to look to its prior interpretations of the interstate pollution transport provision, often referred to as the “good neighbor” provision, at section 110(a)(2)(D)(i)(I) of the CAA, and the 4-step interstate transport framework the Agency has applied to analyze significant contributions under that provision in various regional interstate transport rules, to guide the Agency's analysis in determining whether Maine had met the necessary condition for removal from the OTR. 15 86 FR 23312-13.

As such, we proposed to interpret the inquiry under CAA section 176A(a)(2) as permitting the EPA to remove a state or a portion of a state from a transport region whenever the Administrator has reason to believe that the state's continued inclusion in the transport region will not be required for attainment in the transport region, i.e., that the petitioning state is not significantly contributing to air quality problems in the region and will not so contribute if the state is removed from the OTR. We received no adverse comments on this aspect of our interpretation, and we are therefore retaining this interpretation for purposes of the final approval.

We also proposed an interpretation of the phrase “control of emissions in that state or portion of that state pursuant to this section.” The EPA proposed that “controls” refers to new controls that would be required under CAA section 184(b) if the state or portion of the state were to remain in the OTR, as opposed to controls that the state has already adopted as required by the CAA due to its inclusion in the OTR. We stated that interpreting “controls” in this manner gives effect to the forward-looking nature of the provision, which asks the Administrator to analyze whether removal of the state or portion of the state from the OTR “will” have the effect of contributing to air quality problems in any area in the OTR. We are finalizing this interpretation. 16

We proposed to interpret CAA section 176A(a)(2)'s use of the phrase “any area in the region,” which we used to establish the geographic scope of our significant contribution analysis, to mean all existing areas in the OTR, including areas within the petitioning state. We also took comment on an alternative interpretation wherein our analysis would be limited to interstate impacts, as opposed to impacts within a state's own borders. We received two comments supporting the broader interpretation, i.e., that the phrase should be read to mean all areas in the existing OTR. The EPA will continue to assume for purposes of our final analysis that the phrase “any area in the region” includes any areas within the State of Maine in addition to areas of the OTR beyond Maine's borders. Because our analysis is that Maine's emissions will not significantly contribute to any nonattainment receptors in the OTR, including within its own borders, at this time we need not decide whether it would be appropriate to adopt a narrower interpretation of the phrase as limited to areas beyond the home state's borders.

In summary, we proposed to interpret CAA section 176A(a)(2) in a manner consistent with the EPA's 4-step interstate transport framework, and we retain that proposed interpretation for purposes of this final action. Applying that framework to the question presented by CAA section 176A(a)(2), we proposed to interpret the inquiry as requiring the Administrator to identify whether there are ambient air monitoring sites in the OTR that either are projected to be in nonattainment based on modeling data, or potentially struggle with maintenance or are currently violating the NAAQS based on monitored data, and whether the area petitioned to be removed from the transport region contributes below one percent of the NAAQS to those monitors. We retain that interpretation for purposes of this final rule.

Consistent with the 1990 CAA Amendments, nine Maine counties were designated as nonattainment of the now-revoked 1979 1-hour NAAQS (0.12 parts per million (ppm)). York, Cumberland, Sagadahoc, Androscoggin, Kennebec, Knox, and Lincoln Counties were classified as Moderate nonattainment areas. Waldo and Hancock Counties were classified as Marginal nonattainment areas.

Maine had two nonattainment areas under the now-revoked 1997 8-hour ozone standard. The Portland Ozone Nonattainment area consisted of 56 cities and towns in York, Cumberland, and Sagadahoc Counties, along with the town of Durham in Androscoggin County, and was classified as Marginal for the 1997 ozone standard. The Hancock, Knox, Lincoln, and Waldo Counties Ozone Nonattainment Area (also known as the Midcoast area) consisted of 55 coastal towns and islands in Hancock, Knox, Lincoln, and Waldo counties and was designated as nonattainment under Subpart 1 for the 8-hour ozone standard. Maine was designated “Attainment/Unclassifiable” statewide for both the 2008 and 2015 8-hour ozone standards of 0.075 ppm and 0.070 ppm, respectively.

As previously discussed, Section 184(b) of the CAA established certain control requirements that each state in the OTR is required to implement within the state. Section 182(f) of the CAA Amendments allows for the suspension of the OTR stationary source NO X requirements based on a demonstration that additional NO X reductions would not produce net ozone air quality benefits in the OTR. Maine has petitioned for and has been granted the following CAA section 182(f) NO X waivers.

On December 26, 1995 (60 FR 66748), the EPA approved an exemption request for the Northern Maine area from CAA section 182(f) NO X requirements. This action exempted the Oxford, Franklin, Somerset, Piscataquis, Penobscot, Washington, Aroostook, Hancock and Waldo counties from the requirements to implement NO X control measures for existing stationary sources, NNSR for new sources and modifications that are major for NO X , NO X RACT requirements, the NO X -related general conformity provisions, and the NO X -related transportation conformity provisions now contained in 40 CFR 93.119. 17

On February 3, 2006 (71 FR 5791), the EPA approved a request for an exemption for a similar area in northern Maine (specifically Aroostook, Franklin, Oxford, Penobscot, Piscataquis, Somerset, Washington, and portions of Hancock and Waldo Counties) under the 1997 ozone standard.

On July 29, 2014 (78 FR 43945), the EPA approved the state of Maine's request for an exemption from the NO X requirements contained in section 182(f) of the CAA for the entire state of Maine for the 2008 ozone standard. The CAA does not provide a similar VOC waiver process, and major stationary sources of VOC remain subject to NNSR and RACT requirements throughout the entire state of Maine.

In addition to the NO X waivers under CAA section 182(f), Maine requested and was granted an OTR restructuring with respect to enhanced I/M requirements. 18 (66 FR 1873; January 10, 2001) While the Maine I/M rule did not meet all requirements of the EPA's final rule for enhanced I/M, the EPA determined that the implementation of an enhanced I/M program in Maine in place of the approved Maine I/M rule would not significantly contribute to attainment in any other state in the OTR.

On February 24, 2020, the state of Maine petitioned the EPA pursuant to CAA section 176A(a)(2) for the removal of the state of Maine from the OTR with the exception of the 111 towns and cities listed in Table 1 comprising the Portland and Midcoast Ozone Areas.

The Maine Department of Environmental Protection provided an analysis purporting to demonstrate that Maine's emissions have an insignificant effect on nonattainment for the 8-hour ozone NAAQS in other states and in those areas in Maine that will remain in the OTR. Maine's analysis consisted of modeling “back trajectories” for ozone exceedance days in the 2016-2018 period recorded at monitoring locations in southern New England and in Maine, the EPA's source-apportionment modeling results and emissions-inventory data for Maine and the OTR. 19 A more detailed description of the technical analysis included in Maine's petition can be found in Section V.A of the proposal.

On May 3, 2021, the EPA proposed to grant the CAA section 176A petition from Maine (86 FR 23309). The EPA considered monitoring data, technical demonstrations, and impacts to air quality control regimes in the areas to be removed and proposed to grant Maine's petition on the basis that the portion of the state requested to be removed from the OTR does not contribute to a violation of any ozone standard in any area of the OTR, and that further control of emissions from that portion of Maine under CAA section 184 will not significantly contribute to the attainment of any ozone standard in any area of the OTR. The EPA's basis for this final action to grant Maine's petition has not fundamentally changed from the proposal. The EPA continues to believe that the portion of the state requested to be removed from the OTR does not contribute to a violation of any ozone standard in any area of the OTR, and that further control of emissions from that portion of Maine will not significantly contribute to the attainment of any ozone standard in any area of the OTR.

In support of the EPA's decision to grant the petition, the EPA has determined that all areas of the state proposed for removal from the OTR have been designated in attainment of the ozone NAAQS since 2004, and the entire state of Maine has been designated as in attainment with the ozone NAAQS since 2007. Additionally, technical demonstrations from Maine's Hybrid Single-Particle Lagrangian Integrated Trajectory (HYSPLIT) back trajectory analysis, the EPA's ozone source apportionment modeling, and emissions trends all indicate that emissions from the areas requested to be removed from the OTR will not significantly contribute to nonattainment or maintenance problems in any area in the OTR, either within or outside the state of Maine, in the foreseeable future. Furthermore, removing those areas from the OTR will not result in unchecked relaxation of existing NO X and VOC controls included in Maine's SIP or revoke permitted emissions limits at existing facilities. For these reasons, the EPA believes that a substantial increase in ozone precursor emissions resulting from this action is highly unlikely in any area of Maine or the OTR. A full description of the EPA's technical assessment can be found in Section V.B. of the proposal. The EPA's full assessment of the provisions that will be impacted as a result of granting the petition can be found in Section IV.B of the proposal.

The EPA received 11 comments during the public comment period on the EPA's proposal to grant Maine's petition. This section addresses significant comments received regarding the need for future ozone monitoring in the areas to be removed from the OTR, the potential for final approval of the petition to increase ozone levels in the OTR, and potential adverse impacts that could result if removing part of Maine from the OTR were to increase ozone levels. The remaining comments are addressed in a separate Response to Comments (RTC) document found in the docket for this action.

Comment: Several commenters note that there are no future plans to monitor for ozone in the areas to be removed from the OTR, and that if the decision to approve the petition is finalized, the EPA should require future monitoring in those areas. One commenter asserts that the Agency should require quarterly or bi-annual monitoring, particularly in areas where there could be more industry development. Another commenter asserts that the EPA should establish an assessment plan to be carried out every few years to ensure that the ozone stays within the acceptable range. One commenter notes that currently there is limited monitoring in the areas to be removed from the OTR and that weakening requirements for ozone precursor pollution controls in these areas without ensuring that there is a monitoring system in place to track changes in ozone formation resulting from that decision leaves the EPA no way to determine what the impacts of this decision are.

Response: The EPA disagrees with commenters that there are no plans for future ozone monitoring in the areas to be removed from the OTR and disagrees that the monitoring system currently in place is insufficient to inform the Agency's decision making on this petition. Maine's ozone monitoring obligations as set out in 40 CFR part 58 are not impacted by whether portions of the state are removed from the OTR. Minimum monitoring requirements for ozone are based on Metropolitan Statistical Areas/Consolidated Metropolitan Statistical Areas (MSA/CMSA) population, and how close an area's design value concentrations of a pollutant are to the NAAQS. In addition, every state is required to have at least one NCore site that must measure ozone year-round. Currently, there are 14 ozone monitoring sites operating in Maine with eight monitoring sites located in the portion of the state proposed to be removed from the OTR. Of these eight monitoring sites, one is operated by the EPA's CASTNET program, and two are operated by independent tribal nations. For these three monitoring sites, it is not within the state's purview to consider discontinuation. Although Maine's current ozone monitoring network already exceeds the minimum regulatory requirements set out in 40 CFR part 58, according to 40 CFR part 58.10, any modifications to Maine's current ozone monitoring network must be proposed by Maine and approved by the EPA Regional Administrator. In addition, every 5 years, Maine is required to submit an assessment to the EPA to determine if its current monitoring network “meets the monitoring objectives defined in appendix D to this part, whether new sites are needed, whether existing sites are no longer needed and can be terminated, and whether new technologies are appropriate for incorporation into the ambient air monitoring network.” If, as commenters postulate, emissions of ozone precursors were to increase substantially as a result of the approval of this petition in an area that is not currently monitored, the location and magnitude of new emissions sources could be evaluated at that 5-year interval to determine whether their existence warrants additional ozone monitors or any other modifications to the ozone monitoring network.

The EPA also notes that all ozone monitoring data in locations for which the petition requests be removed from the OTR have 2020 design values substantially below the current ozone NAAQS of 0.070 ppm. The highest design value among these ozone monitors is 0.057 ppm. There is no indication, and commenters have not cited evidence, that ozone levels in areas of Maine away from the monitoring locations differ substantially from those at the locations of the monitors.

Comment: One commenter asserts that Maine's petition does not establish a “reason to believe” that all areas currently within the OTR in Maine will not see significant additional ozone precursor emissions due to the EPA's approval of Maine's request. The commenter contends that the analyses relied on by Maine and the EPA are all based on the continued application of existing OTR controls, including the nonattainment new source review (NNSR) requirements and offsets. The commenter states that the petition offers no information about expected additional new or expanded existing sources in the area of Maine to be removed from the OTR, nor does the petition assess what emissions increases or ozone levels would be expected from allowing new or expanded existing stationary sources without requiring Lowest Achievable Emissions Rate for NO X and VOC emissions, and providing offsets of at least 1.15:1. The commenter claims that the EPA's failure to consider the consequences of approving Maine's petition ( i.e., the likely increase in new and modified industrial sources in inland Maine and the accompanying increase in ozone precursor emissions and in ozone concentrations) constitutes an abuse of the EPA's discretion.

The commenter notes that, should Maine's ozone precursor emissions increase, the state may experience nonattainment of the current 70 ppb standard or of a more stringent standard. The commenter further asserts that if ozone levels increase enough to trigger nonattainment status (under the current standard or future standards), that would require all nonattainment provisions to be reinstated, including OTR requirements that have been waived on the basis that much of the state is in attainment and create regulatory uncertainty for industry. Furthermore, the commenter asserts that removing parts of the state from the OTR will cause Maine to lose the mantle of “clean hands.” The commenter states that Maine's longstanding status in the OTR has shown that the state “did its part to ensure that areas within the State and downwind are also clean” but that leaving the OTR will “eliminate that good neighbor behavior” and ultimately be unfair to other states in the OTR and their neighbors in Canada. The commenter also points to maximum 8-hour average concentrations recorded during the June 6-7, 2021, high ozone event in Maine and asserts that climate change will exacerbate the problem of high ozone throughout the Mid-Atlantic and Northeast states, and further contribute to high ozone levels in Maine.

Multiple commenters also note that the proposal, if finalized, could be harmful to health and the environment if emissions were to increase as a result of approving the petition. One commenter notes that some of the counties and cities that would be removed include farmland and asserts that prolonged exposure to ozone would decrease the growth and production of crops and lead to economic instability for farmers in those areas. Another commenter states that the EPA failed to address potential adverse effects of its action on plant and animal life in parks, National Wildlife Refuges, and Wilderness Areas in Maine, and asserts that the current secondary ozone standard is not sufficiently protective of plants (including crops), trees, and animals. The commenter also cites the adverse effects of ozone exposure on the black cherry tree in Maine and on wilderness area ecosystems, which the commenter cites as important for the carbon storage and other climate benefits these areas provide. The commenter further asserts that the EPA has failed to consider possible implications of its action on air quality and regional haze at the coastal Moosehorn Baring and Moosehorn Edmunds Wilderness Areas in Washington County, or in the downwind Roosevelt-Campobello International Park, all U.S. Class I areas.

Response: The EPA does not agree that there is insufficient information to finalize the approval of Maine's request. The analytical information described in the proposal first identified air quality monitors located in the OTR that either measured elevated ozone concentrations or were projected to have design values that violated the NAAQS or struggled to maintain the NAAQS. The analyses then used a HYSPLIT trajectory model and photochemical source apportionment modeling to identify whether Maine contributed to those problem monitors. We acknowledge that this information did not attempt to speculate what sources might locate in Maine or make modifications based on the regulatory changes that would result from this final action (in particular, as raised by commenter, the change from NNSR requirements to prevention of significant deterioration (PSD) requirements). However, other information in the record, including current ozone concentrations in the state and projected emissions trends, informs the EPA's determination that the portion of the state requested to be removed from the OTR does not contribute to a violation of any ozone standard in any area of the OTR, and that further control of emissions from that portion of Maine will not significantly contribute to the attainment of any ozone standard in any area of the OTR. All areas of the state proposed for removal from the OTR have been designated in attainment of the ozone NAAQS since 2004, and the entire state of Maine has been designated as in attainment with the ozone NAAQS since 2007. Our evaluation of emissions trends and applicability of other existing regulatory control programs that would still apply to the areas removed from the OTR, discussed in more detail below, indicate that a substantial increase in ozone precursor emissions resulting from this action is highly unlikely.

To begin, the projected emissions in Maine indicate steep declines in emissions of ozone precursors associated with on-the-books emissions controls, including mobile source controls that will continue to provide emissions reductions throughout the entire State regardless of whether portions of the state remain in the OTR or are removed from the OTR. Emissions trends of ozone season NO X and VOC in the counties to be fully removed from the OTR are provided in Table 3. 20 21 The data indicate that NO X and VOC emissions will continue to trend downward in these counties, primarily due to reductions in onroad mobile sources. For the counties to be fully removed from the OTR, the emissions of ozone season NO X from onroad mobile sources are projected to decline by 70 percent from 2016 to 2032, as compared to 22 percent for other anthropogenic source sectors. Emissions of VOCs from onroad mobile sources in the counties to be fully removed from the OTR are projected to decline by 53 percent from 2016 to 2032, as compared to 34 percent for other anthropogenic source sectors.

On the books mobile source controls include: Control of Air Pollution From Motor Vehicles: Tier 3 Motor Vehicle Emission and Fuel Standards ( See 79 FR 23414, April 28, 2014); Control of Air Pollution from New Motor Vehicles: Heavy-Duty Engine and Vehicle Standards and Highway Diesel Fuel Sulfur Control Requirements ( See 66 FR 5002, January 18, 2001); and Control of Emissions of Air Pollution From Nonroad Diesel Engines and Fuel ( See 69 FR 38958, June 29, 2004). If additional national mobile source rules are adopted and implemented in the future, those will also provide emissions reductions throughout the entire state regardless of OTR status.

As noted at proposal, Maine's current modeled contributions to nonattainment or maintenance issues anywhere in the OTR are also relevant. The state's highest modeled contribution to any receptor in the OTR that is expected to struggle with attainment or maintenance of the 2015 ozone NAAQS is only 0.01 ppb, i.e., 0.01 percent of the 70 ppb standard. This suggests that the ozone contribution from anthropogenic ozone precursor emissions in Maine would have to increase by a factor of 70 for Maine to potentially contribute above the one percent threshold to an existing or projected nonattainment or maintenance problem in the OTR. This observation is made merely to provide an indication of the general magnitude of emissions increases from Maine that would be needed for existing trends in improving air quality to be halted and reversed to the extent that such an increase may create new air quality problems closer to, or within, Maine. We cannot predict what emissions increases or ozone levels would be expected based on regulatory changes associated with the EPA's approval of Maine's request. But the existing baseline of our analysis of Maine's emissions to other states informs our judgment that it is not reasonable to expect emissions increases on this scale or anything like it.

As also discussed in the proposal, we recognize that by approving Maine's request there would be consequent changes to the New Source Review (NSR) preconstruction permitting program in the state. However, while commenter is correct that lowest achievable emission rate (LAER) and the 1.15:1 emissions offset requirements would no longer apply to new major stationary sources and major modifications in the areas of the state being removed from the OTR, it is not the case these new and modified sources could construct without any regulatory safeguards in place.

Specifically, the areas being removed from the OTR will be subject to Maine's PSD and minor NSR permitting requirements for ozone precursors, NO X and VOC. Both the PSD and minor NSR permitting programs require that permitting authorities assess the impact of the proposed emissions increases from new and modified sources on the applicable NAAQS, as required by CAA sections 165(a)(3)(B) and 110(a)(2)(C), prior to construction. The PSD program, which will apply to major stationary sources and major modifications in the areas removed from the OTR, requires a control technology review, called Best Available Control Technology (BACT), and an air quality analysis to demonstrate that the proposed new or modified emissions source will not cause or contribute to a violation of any NAAQS or PSD increment. Like LAER, BACT is a case-by-case decision for the facility and examines state-of-the-art pollution controls, although for BACT, the permitting authority considers the energy, environmental, and economic impacts and other costs, that are not considered in LAER determinations. However, depending on the type of facility and the cost effectiveness of controls, or other factors, there may not always be significant differences between the level of control that would be required under BACT versus LAER.

Moreover, for much of the area being removed from the OTR in Maine, the change from LAER to BACT for NO X for new and modified sources is not new. As discussed in the proposal, Maine has applied for and obtained NO X waivers under CAA section 182(f) for nearly every ozone standard (all except the most recent 2015 ozone NAAQS). See 86 FR 23315. Consequently, for the 1979 1-hour, 1997 8-hour, and 2008 8-hour ozone NAAQS, many of the counties at issue in this action were exempt from requirements to implement NNSR for new sources and modifications that are major for NO X, NO X RACT requirements, the NO X -related general conformity provisions, and the NO X -related transportation conformity provisions. Id. With these waivers in place, with respect to NSR, new sources and modifications were therefore already subject to BACT for NO X control, as they will be with finalization of this rule. For minor NSR sources and modifications in areas being removed from the OTR, the permitting requirements also will not change. These smaller new sources and modifications will continue to be subject to Maine's minor NSR permitting program, which does not have different requirements based on a location's attainment status. An important feature of Maine's minor NSR program is that its control technology standard is also BACT, so it applies the same control review that Maine requires for larger sources that are subject to PSD. (This is more stringent than federal requirements, since neither the CAA nor the EPA's regulations specify a minimum control requirement for minor NSR permits.) In addition, Maine's minor NSR program requires air quality impact analyses for new minor sources and minor modifications if their emissions exceed 50 tons per year of NO X, and Maine can require air quality analyses even for permits under 50 tons per year of NO X . Finally, granting Maine's petition does not materially alter opportunities for public involvement in the permitting process, as Maine's permitting regulations contain procedures for the opportunity for public participation for permitting actions for both major and minor stationary sources under their minor NSR, PSD, and NNSR permitting regulations.

Consequently, it is not the case that the changes associated with NSR requirements resulting from the removal of the areas from the OTR are as drastic as commenter suggests. For VOCs, NNSR requirements will be replaced by PSD for sources subject to major NSR, and the PSD program has already long been the primary set of controls for new or modified sources for NO X in much or all of Maine under the state's CAA section 182(f) NO X waivers for every ozone standard except the 2015 ozone NAAQS. Furthermore, the minor NSR program will continue to apply BACT and, in many cases, an air quality assessment to smaller sources seeking permits to construct. Therefore, even though we cannot precisely predict whether and to what extent emissions will increase as a result of sources choosing to construct or modify in the area to be removed from the OTR, the information we have does not indicate that emissions will drastically increase, as they would likely need to do in order to have significant impacts on nonattainment in any area of the OTR. The projected ongoing downward emissions trends are due primarily to national mobile source measures that will continue to take effect, and new and modified stationary sources will be subject to PSD BACT for NO X controls, which has already been the primary regulatory regime for much of the area being removed from the OTR for decades.

Because the EPA does not agree that it is reasonable to assume drastic emissions increases as a result of the final action, we also do not think it is reasonable to assume that the health, environmental, and relational  22 consequences raised by commenters would come to pass. As indicated in Table 2, all air quality monitors in the areas of Maine that are being removed from the OTR are not only meeting the current 70 ppb 2015 ozone NAAQS; these monitors are all 10 or more ppb below the 70 ppb NAAQS. Further, health and environmental effects of air pollution are addressed in the NAAQS setting and revision process rather than in the implementation of the NAAQS. CAA section 109 requires the EPA to set the primary NAAQS at a level to protect the public health with an adequate margin of safety, and the secondary NAAQS at a level to protect public welfare from any known or anticipated adverse effects. In assessing impacts to public welfare, the EPA looks at damage to trees and crops. Given the level of Maine's contributions to any nonattainment or maintenance problems in the OTR and given the current air quality at the monitors located in the portions of the state to be removed from the OTR, it is not necessary to separately analyze in the first instance each of the potential public health and welfare consequences commenters raise concerns about. These concerns are not enumerated as factors the Agency must consider under CAA section 176A(a)(2), and all are premised on commenters' speculation—with which we disagree—that ozone precursor emissions in Maine will drastically increase as a result of the regulatory changes associated with this action.

In addition to the factual circumstances above that support the EPA's determination that emissions are not likely to increase drastically as a result of this action, we also note that the CAA's other structural requirements and protections will continue to apply in Maine. Any revisions to Maine's SIP would be subject to CAA section 110(l) anti-backsliding requirements. 23 If the EPA revises the ozone standard in the future, any area determined to be violating that standard will be designated nonattainment with the attendant CAA requirements associated with that designation. Similarly, the issuance of any new NAAQS will also trigger Maine's obligation to submit a SIP addressing its significant contributions to nonattainment or interference with maintenance in any other state under CAA section 110(a)(2)(D)(i)(I). And finally, CAA section 184 and CAA section 176A clearly provide that the EPA retains its authority to revise membership of the OTR whenever the EPA has “reason to believe” a state or portion of a state is significantly contributing to nonattainment.

Comment: One commenter asserts that the EPA misapplies the Chevron doctrine in its statutory interpretation by failing to discuss CAA section 184(a), which applies the removal and addition procedures of CAA section 176(a)(1) and (a)(2) to the OTR, “except to the extent inconsistent with the provisions of this section.” The commenter claims that the proposal to remove portions of Maine is inconsistent with CAA section 184(b)(1)(B), which it interprets to require state-wide implementation of RACT for sources covered by a CTG, regardless of whether that portion of the state is in the OTR, because if the EPA's proposal were finalized, Maine would only be required to have CTG RACT for those sources in the portions of the state remaining in the OTR. The commenter also claims that the proposal is inconsistent with CAA section 184(d), because that provision instructed the EPA to promulgate criteria for purposes of determining the contribution of sources in one area to concentrations of ozone in other areas that are nonattainment for ozone. The commenter asserts that because the EPA never promulgated such criteria, the EPA cannot grant Maine's petition. Moreover, the commenter argues that the EPA cannot claim that it used the best available air quality modeling techniques and best available data in its proposal, because “[t]he determination here does not use OSAT/APCA. Instead, it relies on weaker analyses: HYSPLIT back-trajectories and emissions trends.” With respect to air quality monitoring, the commenter states that it is “implausible” that the EPA's promulgated air quality monitoring network requirements satisfy the requirement in section 184(d) to use the “best available” air quality monitoring techniques. Finally, the commenter states that the EPA cannot claim that it is using the “best available” monitoring data for its proposal because more current data for all OTR states are available and argues that the EPA has provided no basis in its record that the ozone monitoring network criteria have been met.

Response: The commenter is correct that CAA section 176A(a)(2) governs the Agency's action on Maine's request to remove part of its state from the OTR by virtue of CAA section 184(a)'s application of 176A(a)(2) to states in the OTR. However, we disagree with the commenter that granting Maine's request is “inconsistent with the provisions of” CAA section 184. We respond to each of the commenter's assertions on this point in turn.

The commenter contends that to be “consistent” with CAA section 184, whenever approving the removal of any portion of a state from the OTR under CAA section 176A(a)(2), the EPA would need to clearly require the state to prepare SIP submissions and require implementation of RACT for all sources of VOCs covered by a CTG throughout the entire state, regardless of whether those sources are located in the portions of the state located in the OTR. The commenter claims that “the plain language of section 184(b)(1)(B)” requires this by virtue of the reference in that provision to the “state” rather than to the area of the state in the OTR. We do not agree. We think the statutory context and legislative history support the EPA's longstanding interpretation that the CAA section 184(b) SIP requirements for the OTR apply only within the OTR, and not in the portions of a state that are outside the region. We recognize that CAA section 184(b)(1)(B) could be read, as the commenter suggests, to impose VOC CTG RACT requirements statewide, even for sources that are not in the portions of states that are in the OTR. But we do not think this is the only, or even a better, reading of the statute.

First, the vast majority of the jurisdictions comprising the OTR are entire states—of the 13 entities that make up the OTR (including the District of Columbia), 12 have their entire jurisdiction in the region. Only Virginia, of which a very small portion of the state is in the “Consolidated Metropolitan Statistical Area that includes the District of Columbia,” did not have its entire state boundary included in the OTR. It is therefore not surprising that in CAA section 184(b)(1)(B), the statute would use the term “all sources . . . in the State” to describe the extent of the VOC RACT requirement even if what was intended was that the OTR requirements would apply only within the OTR.

Second, the last sentence of CAA section 184(b) defines the threshold for major stationary sources “[f]or purposes of this section” and states that such sources are subject to the requirements that would apply “if the area ” was classified as a Moderate ozone nonattainment area (emphasis added). This requirement, which imposes Moderate area requirements—including NO X RACT for major stationary sources—applies only to those areas of a state which are in the OTR. Commenter's interpretation would therefore mean that Congress imposed a system of OTR controls that required statewide stationary source obligations for VOC CTG RACT but OTR-specific obligations for all other major stationary source requirements and I/M. We think it very unlikely that Congress would have set up a bifurcated approach in which stationary sources would be subject to some OTR requirements but not others, with no explanation in the legislative history (see below).

Third, as the commenter notes, the EPA has been interpreting the OTR requirements in CAA section 184(b) to apply only to areas within the OTR since the 1990 Amendments were passed, and in the intervening 30 years, Congress has never indicated that the Agency's interpretation was incorrect. See 57 FR 13527, n.10 (April 16, 1992) (“Each state in a transport region must adopt VOC RACT regulations for sources located within that portion of the State included in a transport region[.]”); id. (“EPA interprets section 176A as establishing a process whereby a portion of a State can be removed from the region and exempted from the requirements[.]”).

Fourth, we do not agree with the commenter that a comparison of the drafting of CAA sections 184(b)(1)(A) and (B) demonstrates that statewide CTG RACT is compelled regardless of OTR boundaries. The commenter emphasizes the statute's use of the term “areas” in CAA section 184(b)(1)(A) to assert that Congress could have used the term “areas” in CAA section 184(b)(1)(B) had it intended to limit CTG RACT requirements to only those areas of a state that are within the OTR. But there is a more natural reason for the use of the term “areas” in CAA section 184(b)(1)(A)—that provision on its face is a requirement designed specifically for urban areas that experience relatively higher volumes of mobile sources. The provision states “that each area in such State that is in an ozone transport region, and that is a metropolitan statistical area or part thereof with a population of 100,000 or more . . .” are subject to enhanced vehicle inspection and maintenance requirements. The use of the term “area” in that provision naturally flows from the fact that this requirement is limited to metropolitan areas and linguistically fits with the second clause of the sentence—“and that is a metropolitan statistical area.” This reason for the use of the term “area” in CAA section 184(b)(1)(A) is at least as plausible as the reasoning commenter puts forth. Commenter's argument would have it that Congress intended—without any other indication in the statute or legislative history—to require just one of the OTR requirements to apply statewide, regardless of OTR status, while all other requirements in CAA section 184(b) are limited only to that area of the state in the OTR.

Fifth, adopting commenter's interpretation would also undercut the purpose of the authority granted to the EPA in CAA section 176A(a)(1) and (2) to add or remove portions of a state to the OTR. If one of the major, substantive OTR requirements applies statewide, without regard to which portions of that state were in the OTR or not, there would be little purpose to providing the Agency with the authority to tailor the boundaries of the OTR not to include entire states. While commenter may view the authority to tailor transport region boundaries as somehow “inconsistent” with CAA section 184, Congress did just that when it included only the northern portion of Virginia in the OTR by statute, in CAA section 184.

We also do not think the legislative history supports commenter's interpretation. Nothing in the House Report accompanying the Amendments suggests Congress intended OTR requirements to be imposed outside of the OTR ( e.g., application of VOC CTG RACT in the entire state of Virginia, as opposed to the portion of the state within the OTR). That would have been a drastic departure from the overall structure of CAA sections 176A and 184 about which we do not think Congress would have been silent. There are also two amendments Congress considered that may shed light on whether Congress was contemplating a state's inclusion in the OTR as being the operative condition (commenter's interpretation) or whether the actual inclusion of an area in the OTR was the operative condition for imposing OTR requirements (the EPA's interpretation). During the development of the 1990 Amendments, Congress considered creating a special permit program for small sources. In delineating the small sources that would need such a program, Congress identified those “located within a nonattainment area, ozone transport area, or subject to a standard under section 112 consistent with the other provisions of this title.” H.R. Rep. 101-490 (May 17, 1990) (see Sec. 407) (emphasis added). Similarly, in drafting a version of the NO X waiver provision that was ultimately adopted in CAA section 182(f), Congress contemplated two types of determinations under which major stationary source plan provisions would not apply for major stationary sources of NO X —one type of determination for non-OTR areas and a different type of determination for OTR areas. While these provisions were not ultimately adopted in the 1990 Amendments, they shed light on what the legislative drafters considered to be the operative trigger for the application of requirements: In neither of these provisions does the drafted language suggest that a source's location within a state that was in the OTR to be the trigger; instead, both drafts suggest an intent that being in the OTR was the condition upon which the difference in the waiver requirements would hinge.

Finally, commenter does not offer any coherent policy rationale for its interpretation of CAA section 184(a)(1)(B). As explained previously, under this interpretation, RACT for sources of VOCs covered by a CTG would apply statewide for any state if any portion of that state is in the OTR. But under the last sentence of CAA section 184(b), RACT for major stationary sources of NO X only applies in the areas of a state within the OTR. The EPA has previously explained that “authoritative assessments of ozone control approaches have concluded that VOC reductions are generally most effective for addressing ozone locally, including in dense urbanized areas and `immediately downwind.' ” 82 FR 51238, 51248 (November 3, 2017) (citing 82 FR 6517; 76 FR 48222; and 63 FR 57381). Further,

Commenter's interpretation thus runs contrary to the EPA's longstanding understanding of how to most effectively reduce ozone levels: If any ozone precursor should be reduced on a broader geographic scale, it should arguably be NO X , not VOCs. But commenter's rendering of the statute would produce the opposite result, imposing VOC-reduction requirements on a broad geographic scale beyond the borders of the OTR, while NO X RACT is limited to the OTR itself.

We also do not agree with the commenter's assertion that granting Maine's petition would not be “consistent” with CAA section 184 because the EPA did not promulgate criteria precisely according to CAA section 184(d). We do not think this is a reasonable way to read the intersection of the statutory provisions at issue, particularly because, contrary to commenter's assertion, the EPA has substantively satisfied Congress' aims in CAA section 184(d), both in general, and with respect to its analysis of Maine's request. CAA section 184(d) required the EPA, not later than 6 months after November 15, 1990, to “promulgate criteria for purposes of determining the contribution of sources in one area to concentrations of ozone in another area which is a nonattainment area for ozone. Such criteria will require that the best available air quality monitoring and modeling techniques be used for purposes of making such determinations.”

The EPA may not have issued a rule expressly addressing CAA section 184(d) by June 1991, but it is simply not the case that the Agency has not issued and continually updated criteria for the purposes of determining how upwind contributions affect downwind ozone air quality. The EPA has issued multiple rules related to the interstate transport of ozone under CAA section 110(a)(2)(D)(i)(I), and for each of these rules, the Agency has put forth its criteria for determining linkages and contributions between upwind areas and downwind air quality problems (both for areas in nonattainment, per CAA section 184(d), but also for areas that may be meeting the NAAQS but could face problems maintaining the standards). In each of these transport rules, the Agency has used quality-assured, certified air quality monitoring data and state-of-the-science air quality modeling. 24

In FR Doc. 2021-23972 of November 19, 2021, the CY 2022 PFS final rule (86 FR 64996), there were technical errors that are identified and corrected in this correcting document. These corrections are applicable as if they had been included in the CY 2022 PFS final rule, which was effective January 1, 2022.

On page 65059, in discussing the policy we finalized for certain mental health telehealth services, we made a typographical error in indicating the number of months within which the physician or practitioner must have furnished an item or service in person, without the use of telehealth.

On page 65132 in Table 20: CY 2022 Work RVUs for New, Revised and Potentially Misvalued Codes, due to a clerical error in which the incorrect version of the table was included, the listed CMS work RVUs for CPT codes 64633 and 66989 are incorrect.

On page 65133, in Table 20: CY 2022 Work RVUs for New, Revised and Potentially Misvalued Codes, due to the same clerical error, the listed CMS work RVU for CPT code 66991 is incorrect.

On page 65274, in bulleted paragraph describing Chronic Care Management (CCM), due to a clerical error, the description of CPT code 99X21 is inaccurate.

On page 65501, we made typographical errors in the year designations of the performance period and MIPS payment year.

On page 65674, we made typographical errors in the year designations of the performance period and MIPS payment year.

Under 5 U.S.C. 553(b) of the Administrative Procedure Act (the APA), the agency is required to publish a notice of the proposed rule in the Federal Register before the provisions of a rule take effect. Similarly, section 1871(b)(1) of the Social Security Act (the Act) requires the Secretary to provide for notice of the proposed rule in the Federal Register and provide a period of not less than 60 days for public comment. In addition, section 553(d) of the APA and section 1871(e)(1)(B)(i) of the Act mandate a 30-day delay in effective date after issuance or publication of a rule. Sections 553(b)(B) and 553(d)(3) of the APA provide for exceptions from the APA notice and comment, and delay in effective date requirements; in cases in which these exceptions apply, sections 1871(b)(2)(C) and 1871(e)(1)(B)(ii) of the Act provide exceptions from the notice and 60-day comment period and delay in effective date requirements of the Act as well. Section 553(b)(B) of the APA and section 1871(b)(2)(C) of the Act authorize an agency to dispense with normal notice and comment rulemaking procedures for good cause if the agency makes a finding that the notice and comment process is impracticable, unnecessary, or contrary to the public interest, and includes a statement of the finding and the reasons for it in the rule. In addition, section 553(d)(3) of the APA and section 1871(e)(1)(B)(ii) of the Act allow the agency to avoid the 30-day delay in effective date where such delay is contrary to the public interest and the agency includes in the rule a statement of the finding and the reasons for it.

In our view, this correcting document does not constitute a rulemaking that would be subject to these requirements. This document merely corrects technical errors in the CY 2022 PFS final rule. The corrections contained in this document are consistent with, and do not make substantive changes to, the policies and payment methodologies that were proposed, subject to notice and comment procedures, and adopted in the CY 2022 PFS final rule. As a result, the corrections made through this correcting document are intended to resolve inadvertent errors so that the rule accurately reflects the policies adopted in the final rule. Even if this were a rulemaking to which the notice and comment and delayed effective date requirements applied, we find that there is good cause to waive such requirements. Undertaking further notice and comment procedures to incorporate the corrections in this document into the CY 2022 PFS final rule or delaying the effective date of the corrections would be contrary to the public interest because it is in the public interest to ensure that the rule accurately reflects our policies as of the date they take effect. Further, such procedures would be unnecessary because we are not making any substantive revisions to the final rule, but rather, we are simply correcting the Federal Register document to reflect the policies that we previously proposed, received public comment on, and subsequently finalized in the final rule. For these reasons, we believe there is good cause to waive the requirements for notice and comment and delay in effective date.

In FR Doc. 2021-23972 of November 19, 2021 (86 FR 64996) make the following corrections:

1. On page 65059, the sentence that continues at the top of the second column, line 2, the phrase “6 months” is corrected to read “12 months”.

2. On page 65132, in Table 20: CY 2022 Work RVUs for New, Revised and Potentially Misvalued Codes, for CPT code 64633, fifth column, the second full row, the CMS work RVU that reads “3.31” is corrected to read “3.32” and for CPT code 66989, fifth column, the last row, the CMS work RVU that reads “10.31” is corrected to read “12.13”.

3. On page 65133, in Table 20: CY 2022 Work RVUs for New, Revised and Potentially Misvalued Codes, for CPT code 66991, fifth column, the second full row, the CMS work RVU that reads “7.41” is corrected to read “9.23”.

4. On page 65274, second column, first full bulleted paragraph, lines 5 through 8, the phrase “CCM services furnished by clinical staff under the supervision of a physician or NPP who can bill E/M services, and” is removed.

5. On page 65501:

a. The second column, first full paragraph, lines 4 through 6 that read “beginning with the CY 2023 performance period/2025 MIPS payment year” are corrected to read “beginning with the CY 2022 performance period/2024 MIPS payment year.”

b. The third column, first full paragraph, lines 3 through 5 that read “beginning with the CY 2023 performance period/2025 MIPS payment year” are corrected to read “beginning with the CY 2022 performance period/2024 MIPS payment year.”

For the reasons set forth in the preamble, CMS corrects 42 CFR part 414 by making the following correcting amendments:

This is a summary of the Commission's Report and Order, FCC 22-5, adopted and released on January 25, 2022. This document will be available via ECFS, http://www.fcc.gov/cgb/ecfs/. Documents will be available electronically in ASCII, Word, and/or Adobe Acrobat. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format), by sending an email to fcc504@fcc.gov or calling the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

This document contains new or modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, will invite the general public and the OMB to comment on the information collection requirements contained in the amendments to §§ 25.701(d), 25.702(b), 73.1943(a) and (b), and 76.1701(a) and (b), in a separate Federal Register document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13, see 44 U.S.C. 3507. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we previously sought specific comment on how we might further reduce the information collection burden for small business concerns with fewer than 25 employees.

The Commission has determined, and the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, concurs, that this rule is “non-major” under the Congressional Review Act, 5 U.S.C. 804(2). The Commission will send a copy of this Report and Order to Congress and the Government Accountability Office pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A).

1. In this Report and Order, we update our political programming and recordkeeping rules for broadcast licensees, cable television system operators, Direct Broadcast Satellite (DBS) service providers, and Satellite Digital Audio Radio Service (SDARS) licensees. We revise the definition of “legally qualified candidate for public office” to add the use of social media and creation of a campaign website to the existing list of activities that may be considered in determining whether an individual running as a write-in candidate has made a “substantial showing” of his or her bona fide candidacy. We also amend our political file rules consistent with the Bipartisan Campaign Reform Act of 2002 (BCRA), which extends the Commission's political file requirements to any request for the purchase of advertising time that “communicates a message relating to any political matter of national importance” ( i.e., issue ads) and specifies the records that must be maintained. These updates, which are consistent with the proposals set forth in the Notice of Proposed Rulemaking ( NPRM ) in this proceeding, not only conform our rules with statutory requirements, they also reflect modern campaign practices and increase transparency.

2. In recognition of the critical role that political programming plays in keeping the electorate informed, Congress has long established specific requirements governing political programming. These requirements ensure that candidates for elective office have access to broadcast facilities and certain other media platforms and foster transparency about entities sponsoring advertisements.

3. Political Programming Obligations. Political programming obligations for certain Commission licensees and regulatees are set forth in Sections 312(a)(7) and 315 of the Communications Act of 1934, as amended (Act), 47 U.S.C. 312(a)(7), 315. Section 312(a)(7) requires broadcast licensees to give legally qualified candidates for federal office “reasonable access” to their facilities, or to permit them to purchase “reasonable amounts of time.” Section 312(a)(7) of the Act also applies to SDARS licensees and DBS service providers, but it does not apply to cable system operators. Under section 315(a), if a broadcast licensee permits one legally qualified candidate for a public office to use its station, it must afford all other candidates for that office an “equal opportunity” to use the station. Section 315(b) provides that, during certain periods before an election, legally qualified candidates are entitled to “the lowest unit charge of the station for the same class and amount of time for the same period.” The equal opportunity and lowest unit charge requirements also apply to cable system operators, SDARS licensees, and DBS service providers. The entitlements afforded by Sections 312(a)(7) and 315 of the Act are available only to individuals who have achieved the status of “legally qualified candidate.”

4. The Communications Act does not define the term “legally qualified candidate,” but the Commission has adopted a definition and codified it in Section 73.1940. Generally, in order to be considered a “legally qualified candidate,” an individual must publicly announce his or her intention to run for office, must be qualified to hold the office for which he or she is a candidate, and must have qualified for a place on the ballot or have publicly committed himself or herself to seeking election by the write-in method. If seeking election by the write-in method, the individual, in addition to being eligible under applicable law to be a write-in candidate, must make a “substantial showing” that he or she is a bona fide candidate for the office being sought. Section 73.1940(f) of the Commission's rules establishes the requirements for making a “substantial showing” of a bona fide candidacy. The term “substantial showing” of a bona fide candidacy means “evidence that the person claiming to be a candidate has engaged to a substantial degree in activities commonly associated with political campaigning.” Such activities include making campaign speeches, distributing campaign literature, issuing press releases, maintaining a campaign committee, and establishing campaign headquarters.

5. Political Recordkeeping Obligations. The political recordkeeping requirements are integral to ensuring compliance with the statutory protections for political programming. The Commission initially adopted rules requiring broadcast stations to maintain public inspection files documenting requests for political advertising time more than 80 years ago. The Commission subsequently extended political file rules to cable television system operators, DBS providers, and SDARS licensees. Requiring these entities to maintain complete and up to date political files is critical because the information in these files directly affects, among other things, the statutory rights of opposing candidates to request equal opportunities under Section 315(a) of the Act and present their positions to the public prior to an election. In addition, the political files allow the public to verify that Commission licensees and regulatees have complied with their obligations relating to use of their facilities by candidates for political office and to obtain information about entities sponsoring candidate and issue advertisements.

6. In 2002, Congress enacted the BCRA, which amended Section 315 of the Act. The BCRA added a new Section 315(e) to codify the Commission's existing political file obligations by requiring that information regarding any request to purchase advertising time that “is made on behalf of a legally qualified candidate for public office” be placed in the political file. The BCRA also expanded the political file requirements to include any request to purchase political advertising time that “communicates a message relating to any political matter of national importance,” ( i.e., issue ads). Additionally, Section 315(e)(2) of the Act specifies the kinds of records that must be maintained in political files, and Section 315(e)(3) of the Act provides that “[t]he information required by [Section 315(e)] shall be placed in a political file as soon as possible and shall be retained by the licensee for a period of not less than 2 years.”

7. In August 2021, the Commission adopted an NPRM proposing to update the political programming and recordkeeping rules. The NPRM proposed to revise the definition of “legally qualified candidate” to add the use of social media and creation of a campaign website to the existing list of activities that may be considered in determining whether an individual running as a write-in candidate has made a “substantial showing” of his or her bona fide candidacy. The NPRM also proposed to revise the political file rules to conform with Section 315(e), as amended by the BCRA. Only three comments were submitted in response to the NPRM. The National Association of Broadcasters (NAB) supports adding the use of social media and the creation of a campaign website to the list of activities that may be taken into account in determining whether a write-in candidate has made a substantial showing that he or she is a “legally qualified candidate for public office” but submits that certain conditions should apply. Kenia Trujillo (Trujillo) raises concerns that adding the use of social media to this list would make it too easy for anyone to obtain status as a “legally qualified candidate for public office.” Canal Partners Media, LLC (Canal Partners) asserts that broadcast licensees often refuse to comply with the political file obligations, which makes it difficult to monitor their compliance with the political programming requirements. No reply comments were submitted.

8. We adopt our proposal and update the definition of “legally qualified candidate for public office” in Sections 73.1940 and 76.5(q) of the Commission's rules to add the use of social media and the creation of a campaign website to the list of activities that a broadcast licensee or cable operator may take into account in determining whether an individual running as a write-in candidate has made a “substantial showing” of his or her bona fide candidacy. As we explain above, only those individuals who have achieved the status of “legally qualified candidate” may avail themselves of the benefits bestowed by the political programming rules, including the reasonable access, equal opportunities, and lowest unit charge provisions. An individual seeking elective office using the write-in method must, in addition to being eligible under applicable law to be a write-in candidate, make a “substantial showing” that he or she is a bona fide candidate for the office. Sections 73.1940(f) and 76.5(q)(5) define what it means to make a “substantial showing” by listing various activities that are commonly associated with political campaigning, including “making campaign speeches, distributing campaign literature, issuing press releases, [and] maintaining a campaign headquarters.”

9. We conclude that adding the use of social media and the creation of a campaign website to the list of activities that may be taken into account in determining whether there has been a “substantial showing” of a bona fide candidacy will ensure that our definition of “legally qualified candidate” more accurately reflects modern campaign practices. As stated above, NAB supports this revision. In so doing, it “agree[s] with the FCC that modern candidates routinely use social media and campaign websites to share their views and solicit votes and financial contributions.” Recent articles reinforce that bona fide political campaigns use major social media platforms, such as Twitter, Facebook, and Instagram, to share campaign updates, communicate with voters, advertise, solicit support, and fundraise, and that such engagement in social media use typically increases donations for new politicians. In addition, social media platforms enable political campaigns, especially for new or lesser known candidates, to build support by disseminating campaign updates and targeting advertisements to potential voters, and they provide sophisticated tools to regularly measure user engagement. It also has become common practice for bona fide candidates to use campaign websites to connect to a wide audience of potential voters and facilitate direct communication and fundraising. No commenters challenged or rebutted the proposition that candidates today regularly use social media and campaign websites to connect with voters or the articles and media reports cited in the NPRM to support that proposition. We therefore conclude that revising the definition of “legally qualified candidates” to add the use of social media and the creation of a campaign website to the list of activities that may be considered in determining whether there has been a “substantial showing” of a bona fide candidacy is consistent with modern campaign practices.

10. Some examples of social media activities that may support a substantial showing of a bona fide candidacy include the use of social media to fundraise, solicit votes, share policy positions, and engage in digital dialogues with voters. These examples are intended to be illustrative, rather than an exhaustive list of the social media activities that may be relied upon in making a substantial showing of a bona fide candidacy. Other campaign-related uses of social media may be taken into account in determining whether an individual has made a substantial showing that he or she is a “legally qualified candidate.”

11. We emphasize that the use of social media and campaign websites alone will not be sufficient to support a finding that an individual has made a substantial showing that he or she is a “legally qualified candidate.” As NAB points out, “given the simplicity of creating and running a social media account or website, certain stipulations should apply to ensure the legitimacy of candidates. Otherwise, any individual with a Facebook, Twitter or Instagram account could claim status as a legally qualified candidate . . . .” Accordingly, as proposed in the NPRM, social media presence and campaign websites will be treated as additional indicators of activities commonly associated with political campaigning that may be relied on to make a substantial showing of a bona fide candidacy, not as determinative factors. At NAB's suggestion, we include language in the substantial showing rules that specifically states that “[t]he creation of campaign websites and the use of social media shall be additional indicators of a bona fide candidacy, not determinative factors.” We therefore reject concerns raised by Trujillo that the addition of social media to the list of activities that supports a substantial showing for a write-in candidate could allow anyone to rely solely on social media and campaign websites to obtain status as a “legally qualified candidate for public office.”

12. We agree with NAB that only digital activities that are directly related to the campaign should be counted toward the requisite substantial showing. The definition of “legally qualified candidate” set forth in our rules states that “the term substantial showing of a bona fide candidacy . . . means evidence that the person claiming to be a candidate has engaged to a substantial degree in activities commonly associated with political campaigning.” In the NPRM, we proposed to add to the list of activities commonly associated with political campaigning “creating a campaign website, and using social media for the purpose of promoting or furthering a campaign for public office.” This language, which we are including in the final rules, makes clear that only digital activities that are campaign-related should be taken into account in determining whether there has been a substantial showing of a bona fide candidacy.

13. We agree with NAB that digital activities like social media and campaign websites must be combined with campaign activities conducted in the relevant geographic area to substantiate a candidate's “genuine interest in elective office,” “given the simplicity of creating and running a social media account or website.” Therefore, we are including language in the revised substantial showing rules that specifically states that “[t]he creation of a campaign website and the use of social media shall be additional indicators of a bona fide candidacy, not determinative factors, and that such digital activities must be combined with other activities commonly associated with political campaigning that are conducted in substantial portions of the relevant geographic area” ( e.g., establishing a campaign headquarters, making campaign speeches, participating in debates, appearances at community events, and distributing campaign literature). We note that the NPRM contemplated a similar geographic limitation in seeking comment on whether to add any other activities consistent with modern campaign practices, such as digital marketing and advertising, to the list of recognized campaign activities, specifically asking whether the substantial showing analysis should “involve any limiting factors, such as requiring that the marketing and advertising be directed toward persons in areas where votes are being solicited.” We find that the requirement that digital activities like social media and campaign websites must be combined with campaign activities conducted in the relevant geographic area is an appropriate and necessary limitation on our original proposal to ensure a candidate's legitimacy when relying on social media and campaign websites. We will consider what constitutes the “relevant geographic area” on a case-by-case basis. In general, however, the “relevant geographic area” will consist of the legislative, congressional, or other electoral district in which the candidate is soliciting votes from eligible voters.

14. NAB requests that we amend our substantial showing rules to specify that write-in candidates “bear the burden of demonstrating the substantial showing required” to be a legally qualified candidate, and that a Commission licensee or regulatee's “reasonable, good faith determination as to whether a candidate has fulfilled this requirement is entitled to deference.” We agree with these interpretations and note that the Media Bureau has long interpreted the Commission's substantial showing rules in this manner. Given the dearth of comments on this question, including from political candidates and the public, we decline to amend our rules. However, we will address these issues based on the facts and circumstances of each particular case in keeping with this interpretation.

15. Additionally, we decline to add any other activities consistent with modern campaign practices, such as the use of digital marketing and advertising, to the list of recognized campaign activities in Sections 73.1940(f) and 76.5(q)(5) of our rules. No commenter expressly supported or even addressed the addition of other such activities to the list of recognized campaign activities set forth in the rules. In the absence of any support or comment in the record on this issue, we conclude that the addition of other activities to the list is not warranted at this time.

16. We adopt our proposal and amend the political file rules for broadcast licensees, cable operators, DBS providers, and SDARS licensees consistent with the BCRA and Section 315(e) of the Act. No commenter objects to this update. Enacted in 2002, the BCRA, among other things, added a new Section 315(e) of the Act. Section 315(e)(1)(A) codifies the Commission's long-standing requirement that records of a request to purchase advertising time that “is made on behalf of a legally qualified candidate for public office,” known as a candidate ad, be maintained in the political file. Section 315(e)(1)(B) extends political recordkeeping obligations to records of a request for the purchase of advertising time that “communicates a message relating to any political matter of national importance,” known as an issue ad. Section 315(e)(2) identifies the specific records that must be placed in political files for both candidate and issue ads. These records include (1) whether the request to purchase broadcast time is accepted or rejected by the licensee; (2) the rate charged for the broadcast time; (3) the date and time on which the communication is aired; (4) the class of time that is purchased; (5) the name of the candidate to which the communication refers and the office to which the candidate is seeking election, the election to which the communication refers, or the issue to which the communication refers (as applicable); (6) in the case of a request made by, or on behalf of, a candidate, the name of the candidate, the authorized committee of the candidate, and the treasurer of such committee; and (7) in the case of any other request, the name of the person purchasing the time, the name, address, and phone number of a contact person for such person, and a list of the chief executive officers or members of the executive committee or of the board of directors of such person. Although the Commission has provided guidance on political recordkeeping consistent with these statutory requirements following their adoption in 2002, the political file rules were not previously updated to reflect these statutory requirements.

17. We accordingly revise the political file rules for broadcast licensees, cable television system operators, DBS providers, and SDARS licensees to bring them into conformity with Section 315(e) of the Act. Specifically, we revise our rules to require these entities to maintain in their online political files not only records of each request for advertising time that is made by or on behalf of a legally qualified candidate for public office, but also records of each request for advertising time that “communicates a message relating to any political matter of national importance.” Additionally, we amend the rules to specify the particular records that must be maintained in online political files for both candidate ads and issue ads, consistent with the list set forth in Section 315(e)(2). These revisions ensure that the political recordkeeping rules fully and accurately reflect statutory requirements. Further, these revisions will foster greater transparency about the entities sponsoring candidate and issue ads.

18. We do not believe this is the appropriate proceeding to address Canal Partners' proposed interpretation of the phrase “a message relating to any political matter of national importance” in Section 315(e)(1)(B). Canal Partners asserts that “licensees regularly refuse to comply with their public-disclosure obligations” and urges the Commission to make clear that “the phrase `a message relating to any political matter of national importance' should be interpreted broadly in favor of full disclosure and transparency and that licensees must act fairly, sensibly, honestly, and without any intent to seek commercial advantage when deciding whether to place information in their public political files.” Canal Partners makes allegations against two broadcast stations to support its assertion that licensees regularly refuse to comply with their public-disclosure obligations.

19. As an initial matter, we decline to address this issue as we did not seek comment on the interpretation of this phrase in the NPRM. Even assuming that there was misconduct by the two stations referenced by Canal Partners, we see no need to adopt a rule on this issue at this time. The Commission addresses complaints on their individual merits. To the extent that Canal Partners maintains that licensees regularly refuse to comply with their political file obligations, specific allegations of such misconduct are properly addressed through the complaint process. Furthermore, the Commission recently clarified the standard of review of broadcasters' compliance with their political file disclosure obligations. Specifically, the Commission clarified that the agency will apply a standard of reasonableness and good faith decision-making with respect to the efforts of broadcasters to comply with their obligations under Section 315(e) of the Act. To the extent that Canal Partners challenges the Commission's clarifications, we find that challenge is an untimely petition for reconsideration of that prior order and accordingly we decline to adopt it.

20. We conclude that to the extent that the revised rules impose any costs on Commission licensees and regulatees, such costs will be minimal and are outweighed by the benefits to the public of the revised rules. No commenters explicitly addressed the costs and benefits of the proposed rules or provided specific data and analysis supporting claimed costs and benefits in response to the NPRM. As noted above, however, NAB states that the revision to the definition of “legally qualified candidates” will not drastically alter current industry practices because broadcasters already consider digital activities in determining whether an individual has established that he or she is a bona fide candidate. In addition, the revisions to the political file rules merely conform our rules to longstanding statutory requirements and the Commission has provided licensees and regulatees guidance on political recordkeeping consistent with these statutory requirements since their adoption in 2002. Thus, we expect that any costs imposed by the updated rules will be minimal and outweighed by the public benefits of transparency and clarity.

21. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Initial Regulatory Flexibility Analysis (IRFA) was incorporated into the NPRM released in this proceeding. The Federal Communications Commission (Commission) sought written public comment on the proposals in the NPRM, including comment on the IRFA. The Commission received no comments on the IRFA. This Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

22. The Report and Order updates the political programming and recordkeeping rules for broadcast licensees, cable television system operators, Direct Broadcast Satellite (DBS) service providers, and Satellite Digital Audio Radio Service (SDARS) licensees to conform these rules with modern campaign practices and statutory requirements and increase transparency. The Report and Order revises the definition of “legally qualified candidate for public office” to add the use of social media and creation of a campaign website to the existing list of campaign-related activities that may be considered in determining whether an individual running as a write-in candidate has made a “substantial showing” of his or her bona fide candidacy. The Report and Order makes clear that social media presence and campaign websites will be treated as additional indicators of activities commonly associated with political campaigning needed to make substantial showing of a bona fide candidacy, not as determinative factors, and such digital activities must be combined with other activities commonly associated with political campaigning that are conducted in substantial portions of the relevant geographic area.

23. The Report and Order also amends the political file rules consistent with the Bipartisan Campaign Reform Act of 2002 (BCRA), which extends the Commission's political file requirements to any request for the purchase of advertising time that “communicates a message relating to any political matter of national importance” ( i.e., issue ads) and specifies the records that must be maintained. The Report and Order revises the rules to require that broadcast licensees, cable operators, DBS providers, and SDARS licensees maintain in their online political files not only records of each request for advertising time that is made by or on behalf of a legally qualified candidate for public office, but also records of each request for advertising time that “communicates a message relating to any political matter of national importance.” Further, the Report and Order amends the rules to specify that the following record must be placed in online political files for both candidate ads and issue ads:

24. No comments were filed in response to the IRFA.

25. Pursuant to the Small Business Jobs Act of 2010, the Commission is required to respond to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA), and to provide a detailed statement of any change made to the proposed rules as a result of those comments. The Chief Counsel did not file any comments in response to the proposed rules in this proceeding.

26. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA. The rules proposed herein will directly affect small television broadcast stations. Below, we provide a description of these small entities, as well as an estimate of the number of such small entities, where feasible.

27. The rules adopted herein will directly affect small television broadcast stations. Below, we provide a description of these small entities, as well as an estimate of the number of such small entities, where feasible.

28. Television Broadcasting. This U.S. Economic Census category “comprises establishments primarily engaged in broadcasting images together with sound.” These establishments operate television broadcast studios and facilities for the programming and transmission of programs to the public. These establishments also produce or transmit visual programming to affiliated broadcast television stations, which in turn broadcast the programs to the public on a predetermined schedule. Programming may originate in their own studio, from an affiliated network, or from external sources. The SBA has created the following small business size standard for such businesses: those having $41.5 million or less in annual receipts. According to the 2012 Economic Census (when the SBA's size standard was set at $38.5 million or less in annual receipts), 751 firms in the small business size category operated in that year. Of that number, 656 had annual receipts of $25 million or less, 25 had annual receipts between $25 million and $49,999,999 and 70 had annual receipts of $50 million or more. Based on this data, we estimate that the majority of commercial television broadcast stations are small entities under the applicable size standard.

29. Additionally, the Commission has estimated the number of licensed commercial television stations to be 1,372. Of this total, 1,263 stations (or 92%) had revenues of $41.5 million or less in 2019, according to Commission staff review of the BIA Kelsey Inc. Media Access Pro Television Database (BIA) on July 30, 2020, and therefore these stations qualify as small entities under the SBA definition. In addition, the Commission estimates the number of noncommercial educational television stations to be 384. The Commission does not compile and does not have access to information on the revenue of NCE stations that would permit it to determine how many such stations would qualify as small entities. There are also 385 Class A stations. Given the nature of this service, the Commission presumes that all of these stations qualify as small entities under the applicable SBA size standard.

30. Radio Broadcasting. This U.S. Economic Census category “comprises establishments primarily engaged in broadcasting aural programs by radio to the public.” Programming may originate in the establishment's own studio, from an affiliated network, or from external sources. The SBA has created the following small business size standard for such businesses: those having $41.5 million or less in annual receipts. According to Economic Census data for 2012 (when the SBA's size standard was set at $38.5 million or less in annual receipts), 2,849 firms in this category operated in that year. Of that number, 2,806 operated with annual receipts of less than $25 million per year, 17 with annual receipts between $25 million and $49,999,999 million and 26 with annual receipts of $50 million or more. Based on this data, we estimate that the majority of commercial radio broadcast stations were small under the applicable SBA size standard.

31. The Commission has estimated the number of licensed commercial AM radio stations to be 4,519 and the number of commercial FM radio stations to be 6,682 for a total of 11,201 commercial stations. According to Commission staff review of the BIA Kelsey Inc. Media Access Pro Television Database (BIA) on July 30, 2020, 99% of commercial radio stations had revenues of $41.5 million or less in 2019, and therefore these stations qualify as small entities under the SBA definition. In addition, there were 4,211 noncommercial, educational (NCE) FM stations. The Commission does not compile and does not have access to information on the revenue of NCE stations that would permit it to determine how many such stations would qualify as small entities.

32. We note, however, that in assessing whether a business concern qualifies as “small” under the above definition, business (control) affiliations must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. In addition, another element of the definition of “small business” requires that an entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific television broadcast station is dominant in its field of operation. Accordingly, the estimate of small businesses to which the rules may apply does not exclude any radio or television station from the definition of a small business on this basis and is therefore possibly over-inclusive. An additional element of the definition of “small business” is that the entity must be independently owned and operated. Because it is difficult to assess these criteria in the context of media entities, the estimate of small businesses to which the rules may apply does not exclude any radio or television station from the definition of a small business on this basis and similarly may be over-inclusive.

33. Cable Companies and Systems (Rate Regulation Standard). The Commission has also developed its own small business size standards for the purpose of cable rate regulation. Under the Commission's rules, a “small cable company” is one serving 400,000 or fewer subscribers nationwide. Industry data indicates that, of the 777 cable companies currently operating in the United States, 766 serve 400,000 or fewer subscribers. Additionally, under the Commission's rules, a “small system” is a cable system serving 15,000 or fewer subscribers. According to industry data, there are currently 4,336 active cable systems in the United States. Of this total, 3,650 cable systems have fewer than 15,000 subscribers. Thus, the Commission believes that the vast majority of cable companies and cable systems are small entities.

34. Cable System Operators (Telecom Act Standard). The Communications Act of 1934, as amended, also contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than one percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” As of 2019, there were approximately 48,646,056 basic cable video subscribers in the United States. Accordingly, an operator serving fewer than 486,460 subscribers shall be deemed a small operator if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate. Based on available data, we find that all but five cable operators are small entities under this size standard. We note that the Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million. Therefore, we are unable at this time to estimate with greater precision the number of cable system operators that would qualify as small cable operators under the definition in the Communications Act.

35. Direct Broadcast Satellite (DBS) Service. DBS service is a nationally distributed subscription service that delivers video and audio programming via satellite to a small parabolic dish antenna at the subscriber's location. For the purposes of economic classification, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in the Wired Telecommunications Carriers industry. The Wired Telecommunications Carriers industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services, wired (cable) audio and video programming distribution; and wired broadband internet services. The SBA determines that a wireline business is small if it has fewer than 1,500 employees. Economic census data for 2012 indicate that 3,117 wireline companies were operational during that year. Of that number, 3,083 operated with fewer than 1,000 employees. Based on that data, we conclude that the majority of wireline firms are small under the applicable standard. However, currently only two entities provide DBS service, which requires a great deal of capital for operation: DIRECTV (owned by AT&T) and DISH Network. According to industry data, DIRECTV and DISH serve 14,831,379 and 8,957,469 subscribers respectively, and count the third and fourth most subscribers of any multichannel video distribution system in the U.S. Given the capital required to operate a DBS service, its national scope, and the approximately one-third share of the video market controlled by these two companies, we presume that neither would qualify as a small business.

36. Satellite Radio. Sirius-XM, which offers subscription services, is the sole, current U.S. provider of satellite radio (SDARS) services, Sirius-XM. Sirius-XM reported revenue of $8.04 billion and a net income of $131 million in 2020. In light of these figures, we believe it is unlikely that this entity would be considered small

37. In this section, we identify the reporting, recordkeeping, and other compliance requirements adopted in the Report and Order and consider whether small entities are affected disproportionately by any such requirements.

38. Reporting Requirements. The Report and Order does not adopt any new or modified reporting requirements.

39. Recordkeeping Requirements. The Report and Order revises the political file rules, consistent with the BCRA's amendment to Section 315(e) of the Act, to reflect the statutory requirements that broadcast licensees, cable television system operators, DBS providers, and SDARS licensees are obligated to maintain in their online political inspection files records of each request for advertising time that “is made on behalf of a legally qualified candidate for public office” and each request for advertising time that “communicates a message relating to any political matter of national importance” ( i.e., issue ads). In addition, the Report and Order revises the political file rules to list the specific records that must be maintained in political files.

40. Other Compliance Requirements. The Report and Order revises the political programming rules to add the use of social media and the creation of campaign websites to the list of activities that may be considered in determining whether an individual who is running as a write-in candidate has made a “substantial showing” of his or her bona fide candidacy.

41. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance, rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.”

42. The Report and Order revises the political programming and political file rules to bring them into conformity with modern campaign practices and statutory requirements. As discussed below, the updates are not expected to significantly impact small entities.

43. The changes in the Recordkeeping Requirements merely conform our rules with the statutory requirements in Section 315(e) of the Act, which was added in 2002 by the BCRA. The Commission has provided guidance on political recordkeeping consistent with these statutory requirements since their adoption in 2002. The revisions ensure that the political file rules fully and accurately reflect the statutory requirements.

44. The changes in the Compliance Requirements conform with modern campaign practices. NAB states that these changes will not drastically alter current industry practices because broadcasters already consider digital activities in determining whether an individual has made a substantial showing that he or she is a bona fide candidate.

45. The Commission will send a copy of the Report and Order, including this FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the Report and Order, including this FRFA, to the Chief Counsel for Advocacy of the SBA. The Report and Order and FRFA (or summaries thereof) will also be published in the Federal Register .

46. Accordingly, it is ordered, pursuant to the authority contained in Sections 1, 4(i), 4(j), 303, 307, 312, 315, and 335 of the Communications Act, as amended, 47 U.S.C 151, 154(i), 154(j), 303, 307, 312, 315, and 335, that this Report and Order is adopted.

47. It is further ordered that the Commission's rules are hereby amended as set forth below.

48. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Report and Order including the Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 25, 73, and 76 as follows:

In FR Doc. 2022-01021 appearing on page 3419 in the Federal Register of January 21, 2022 (87 FR 3390), the following corrections are made:

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. Regulations governing sideboard protections for GOA groundfish fisheries appear at subpart B of 50 CFR part 680.

The A season allowance of the 2022 Pacific cod sideboard limit established for non-AFA crab vessels, and that are operating as CVs using pot gear in the Western Regulatory Area of the GOA, is 442 metric tons (mt), as established by the final 2021 and 2022 harvest specification for groundfish in the GOA (86 FR 10184, February 19, 2021) and inseason adjustment (86 FR 74384, December 30, 2021).

In accordance with § 679.20(d)(1)(i), the Regional Administrator has determined that the A season allowance of the 2022 Pacific cod sideboard limit established for non-AFA crab vessels that are operating as CVs using pot gear in the Western Regulatory Area of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 442 mt and is setting aside the remaining 0 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 680.22(e)(3), the Regional Administrator finds that this sideboard directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by vessels using pot gear in the Western Regulatory Area of the GOA.

While this closure is effective the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR part 679, which was issued pursuant to section 304(b), and is exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the sideboard directed fishing closure of Pacific cod for non-AFA crab vessels that are subject to sideboard limits, and that are operating as CVs using pot gear in the Western Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of February 4, 2022.

The Assistant Administrator for Fisheries, NOAA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.