DOE maintains previously-approved versions and incorporates by reference the following standard into 10 CFR part 435:

ICC International Energy Conservation Code (IECC), Redline Version, copyright 2021. (IECC 2021).

Copies of this standard is available from the International Code Council, 4051 West Flossmoor Road, Country Club Hills, IL 60478, 1-800-422-7233, www.iccsafe.org/ .

For a further discussion of this standard see section VII.N of this document.

Section 305 of the Energy Conservation and Production Act (ECPA), as amended, requires DOE to determine whether the energy efficiency standards for new Federal buildings should be updated to reflect revisions to the IECC based on the cost-effectiveness of the revisions. (42 U.S.C. 6834(a)(3)(B)) In this rulemaking, DOE is updating the energy efficiency standards for new Federal low-rise residential buildings to IECC 2021 from IECC 2015. Accordingly, DOE conducted a cost-effectiveness analysis and determined that the 2021 IECC would be cost-effective if applied to new Federal low-rise residential buildings. DOE's assumptions and methodology for the cost-effectiveness of this rule are based on the cost-effectiveness analysis of the 2021 IECC performed by DOE's state building codes program, as well as DOE's environmental assessment (EA) for this rulemaking. 1 Therefore, in this final rule, DOE updates the energy efficiency standards for new Federal buildings to the 2021 IECC for buildings for which design for construction begins on or after one year following publication of this final rule in the Federal Register . (42 U.S.C. 6834 (a)(3)(A))

ECPA, as amended, requires DOE to establish building energy efficiency standards for all new Federal buildings. (42 U.S.C. 6834(a)(1)) The standards established under section 305(a)(1) of ECPA must contain energy efficiency measures that are technologically feasible, economically justified, and meet the energy efficiency levels in the applicable voluntary consensus energy codes specified in section 305. (42 U.S.C. 6834(a)(1)-(3))

Under section 305 of ECPA, the referenced voluntary consensus code for low-rise residential buildings is the International Code Council (ICC) International Energy Conservation Code (IECC). (42 U.S.C. 6834(a)(2)(A)) DOE codified this referenced code as the baseline Federal building standard in its existing energy efficiency standards found in 10 CFR part 435. Also pursuant to section 305 of ECPA, DOE must establish, by rule, revised Federal building energy efficiency performance standards for new Federal buildings that require such buildings to be designed to achieve energy consumption levels that are at least 30 percent below the levels established in the referenced code (baseline Federal building standard), if life-cycle cost (LCC) effective. (42 U.S.C. 6834(a)(3)(A)(i)(I))

Under section 305 of ECPA, not later than one year after the date of approval of each subsequent revision of the ASHRAE Standard or the IECC, DOE must determine whether to amend the baseline Federal building standards with the revised voluntary standard based on the cost-effectiveness of the revised voluntary standard. (42 U.S.C. 6834(a)(3)(B)) It is this requirement that this rulemaking addresses. ICC has updated the IECC from the version currently referenced in DOE's regulations at 10 CFR part 435. In this final rule, DOE revises the latest baseline Federal building standard for 10 CFR part 435 from the 2015 IECC to the 2021 IECC. DOE notes that although ICC published an update to the IECC in 2018, this rule updates 10 CFR part 435 to the 2021 IECC directly, without requiring agencies to comply with the 2018 IECC. DOE notes, however, that because development of the IECC is incremental from version to version, the 2021 IECC does include all content in the 2018 IECC that was not specifically removed or modified during the development of the 2021 IECC.

Section 306(a) of ECPA provides that each Federal agency and the Architect of the Capitol must adopt procedures to ensure that new Federal buildings will meet or exceed the Federal building energy efficiency standards established under section 305. (42 U.S.C. 6835(a)) Section 306(b) of ECPA bars the head of a Federal agency from expending Federal funds for the construction of a new Federal building unless the building meets or exceeds the applicable baseline Federal building energy standards established under section 305. (42 U.S.C. 6835(b)) Specifically, all new Federal buildings must be designed to achieve the baseline standards in the IECC for low-rise residential buildings (and ASHRAE Standard 90.1 for commercial and multi-family high-rise residential buildings) and achieve energy consumption levels at least 30 percent below these minimum baseline standards, where LCC effective. (42 U.S.C. 6834 (a)(3)(A)) When it is not LCC effective to design new Federal low-rise residential buildings to exceed IECC performance levels by 30 percent, new Federal buildings must be designed to exceed the IECC performance levels up to the percentage that is LCC effective, but at minimum meets the performance levels of the IECC. (10 CFR 435.4(c)). These requirements do not extend to renovations or modifications to existing buildings.

DOE is issuing this action as a final rule. As indicated in this preamble, DOE must determine whether the energy efficiency standards for new Federal buildings should be updated to reflect revisions included in the 2021 IECC based on the cost-effectiveness of the revisions. (42 U.S.C. 6834(a)(3)(B)) In this final rule, DOE determines that the energy efficiency standards for new Federal buildings should be updated to reflect the 2021 revisions to the IECC based on the cost-effectiveness of the revisions.

DOE reviewed the IECC for DOE's state building codes program and determined that the 2021 version of the IECC would achieve greater energy efficiency than the prior version (the 2018 version). ( See 86 FR 40529 (July 28, 2021)) DOE also reviewed the 2018 version of the IECC and determined that the 2018 version would achieve greater energy efficiency than the prior version (the 2015 version currently referenced in 10 CFR part 435). ( See 82 FR 2867 (January 10, 2017)) Both these determinations were subject to notice and comment. See 86 FR 26710 (May 17, 2021) and 84 FR 18833 (May 2, 2019), respectively, for the 2021 IECC and 2018 preliminary determinations. DOE found that the 2021 version of the IECC would save 8.79 percent more source energy than the 2018 version of the IECC  2 and that the 2018 version of the IECC would save 1.91 percent more source energy than the 2015 version of the IECC. 3

In DOE's determinations for the State building codes program, and again in this rule, DOE states that the cost-effectiveness of revisions to the voluntary codes is considered through DOE's statutorily directed involvement in the codes process. See 86 FR 40529 (July 28, 2021). Section 307 of ECPA requires DOE to participate in the ICC code development process and to assist in determining the cost-effectiveness of the voluntary standards. (42 U.S.C. 6836) DOE is required to periodically review the economic basis of the voluntary building energy codes and participate in the industry process for review and modification, including seeking adoption of all technologically feasible and economically justified energy efficiency measures. (42 U.S.C. 6836(b))

In addition to DOE's consideration of the cost-effectiveness of the 2021 IECC through its participation in the code development process, DOE conducted an independent analysis of the cost-effectiveness of the 2021 IECC compared to the 2018 IECC and 2015 IECC. 4 The results of the analysis are discussed in section VII.A of this document. DOE's assumptions and methodology for the cost-effectiveness of this rule are based on DOE's cost-effectiveness analysis of the 2018 and 2021 IECC, as well as DOE's EA for this rulemaking. 5

In this rule, DOE updates the energy efficiency standards applicable to new Federal buildings based on the determinations made by DOE as to the energy efficiency improvements of the 2018 IECC  6 and 2021 IECC, 7 as compared to the predecessor version (the 2015 IECC), and based on the considerations of cost-effectiveness incorporated into the codes processes, DOE's involvement in those processes, and DOE's own cost-effectiveness analysis. This final rule amends 10 CFR part 435 to update the referenced baseline Federal energy efficiency performance standards. This final rule does not make any changes to the overall requirement that agencies must design buildings to meet the baseline standard and, if LCC effective, achieve savings of at least 30 percent below the baseline standard.

The IECC is updated every three years by the International Code Council (ICC). DOE, as part of its determination process, evaluates each new version of the IECC for low-rise residential buildings. The summaries in the following sections are taken directly from DOE's determinations and supporting analyses for the 2018 IECC  8 and 2021 IECC. 9 Section III.A.1 of this document describes the changes between the 2015 IECC and the 2018 IECC and section III.A.2 of this document describes the changes between the 2018 IECC and the 2021 IECC.

In creating the 2018 IECC, ICC processed 47 approved code change proposals to the 2015 IECC. A total of 14 of these changes were found to have a direct impact on energy use and the other 33 changes were administrative or had an impact on non-energy portions of the code. DOE found that changes resulting in decreased energy use outweigh any changes expected to result in increased energy use in residential buildings. Of the 47 total changes, 11 were expected to decrease energy use, 3 were expected to increase energy use, 30 were administrative, and 3 were considered not energy related.

The 11 changes considered that are expected to decrease energy use are the following:

(1) Requires R-5 insulation under the entire slab when the slab is heated. This change will result in reduced heat loss in buildings with heated slabs, thereby reducing energy use.

(2) Lowers fenestration U-factors in climate zones 3-8. This change reduces heat loss and gain through doors and windows in six of the eight IECC climate zones.

(3) Corrects an inconsistency in the steel framing R-value equivalency table. This change effectively requires an additional R-1 continuous insulation if R-19 cavity insulation is used, resulting in decreased energy use.

(4) Adds provisions for ducts buried in attic insulation. The provisions added address buried ducts as an optional feature.

(5) Adds heat recovery ventilation (HRV)/energy recovery ventilation (ERV)-specific fan-efficacy requirements. This change replaces prior efficacy values for generic in-line fans that were considered inappropriate when HRV/ERV systems are installed.

(6) Increases high-efficacy lighting requirements from 75 percent to 90 percent of permanently installed lighting fixtures and eliminates the option of calculating percentages based on lamp counts instead of fixture counts. This change results in reduced energy use in lighting and applies to all homes complying with the IECC.

(7) Updates equation for ventilation fan energy in the Standard Reference Design of the simulated performance alternative compliance path to reference prescriptive fan-efficacy requirements. The equation in the prior code version used a term based on outdated fan efficacies. This change reduces energy when compliance is demonstrated using the performance path.

(8) Replaces definition of Energy Rating Index (ERI) with a reference to ANSI/RESNET/ICC 301, except for Reference Home ventilation rates, which are modified to be consistent with International Residential Code (IRC) requirements. This change bases the ERI target on the IRC's ventilation rates, which are lower than those in American National Standards Institute (ANSI)/Residential Energy Services Network (RESNET)/ICC 301. This reduces ventilation energy in homes meeting the target in the ERI path.

(9) Improves mandatory envelope requirements in the ERI compliance path for homes with onsite generation. This change strengthens mandatory envelope efficiency requirements and prevents degrading envelope efficiency in trade for onsite generation.

(10) Requires new heating, ventilating, and air-conditioning (HVAC) systems in additions and alterations to comply with the same requirements as systems in new homes. This change will improve efficiency in some additions and alterations.

(11) Modifies and clarifies an exception to the pool cover requirements. This change makes a modest increase to the level of site-recovered energy required to qualify for the exception.

The three changes that are expected to increase energy use are as follows:

(1) Exempts log homes designed in accordance with ICC-400 from the thermal envelope requirements of the IECC. This change results in an expected increase in energy use in log homes since ICC-400 allows less efficient walls than the IECC.

(2) Allows buried ducts meeting specified insulation and air-sealing criteria to be considered equivalent to ducts located entirely within conditioned space in the simulated performance alternative compliance path. This change increases heat gain/loss into attics compared to ducts entirely within conditioned space.

(3) Raises (relaxes) ERI thresholds. This change allows higher energy use in residences under the ERI compliance path.

The remaining 33 changes were considered administrative in nature or were determined to not be energy related. These changes are discussed in more detail in Table A.2 of Energy Savings Analysis: 2018 IECC for Residential Buildings. 10

In creating the 2021 IECC, ICC processed 119 approved code change proposals to the 2018 IECC. A total of 35 of these changes were found to have a direct impact on energy use and the other 79 changes were administrative or had an impact on non-energy portions of the code. DOE found that changes resulting in decreased energy use outweigh any changes expected to result in increased energy use in residential buildings. Of the 35 changes that were determined to directly impact energy use, 29 were expected to decrease energy use and 6 were expected to increase energy use.

The following 11 changes were determined to result in the bulk of the energy savings associated with the 2021 IECC over the 2018 IECC:

(1) Increases lamp efficacy to 65 lumens per watt and luminaires efficacy to 45 lumens per watt.

(2) Increases efficacy in the definition of high-efficacy lamps to 70 lumens per watt.

(3) Increases stringency of wood frame wall R-value requirements in climate zones 4 and 5.

(4) Increases slab insulation R-value requirements and depth in climate zones 3-5.

(5) Increases stringency for ceiling insulation in climate zones 2 and 3.

(6) Increases stringency for ceiling insulation in climate zones 4-8 and adds exception for when there is not space for R-60 in the ceiling.

(7) Increases stringency of fenestration U-factors in climate zones 3-4.

(8) Increases whole-house mechanical ventilation system fan efficacy requirements for inline fans and bathroom/utility fans.

(9) Requires ventilation systems to include heat or energy recovery in climate zones 7 and 8.

(10) Requires exterior lighting in R-2, R-3, and R-4 buildings to meet Section C405.4 of IECC.

(11) Adds new section R408, “Additional Efficiency Package Options” to reduce energy use by 5 percent regardless of the compliance path chosen.

DOE's assumptions and methodology for the cost-effectiveness of this rule are based on the cost-effectiveness analysis of the 2018 IECC  11 and 2021 IECC performed by DOE's state building codes program, 12 as well as DOE's EA for this rulemaking. 13 The EA identified a rate of new Federal residential construction of approximately 9.78 million square feet per year. This equates to approximately 3,824 new single-family units (9.60 million square feet) and 153 new low-rise multi-family residential units (0.19 million square feet) assumed each year. As described in the EA, this estimate is derived from consideration of data from the Federal Real Property Profile Management System (FRPP MS) extraction and Department of Defense estimates of privatized housing. DOE's cost-effectiveness analysis of the 2018 IECC provides tables for the first cost increase, the energy savings, and the LCCs associated with the 2018 IECC versus the 2015 IECC by climate zone. DOE's cost-effectiveness report does not provide national average values but does provide sufficient weighting data so that these national averages can be calculated. The weighting data provided in the cost-effectiveness report is used to generate the rows labeled “National Average” in Table IV.1 through Table IV.9 in this preamble.

Table IV.1 lists the increased first costs associated with the 2018 IECC for a standard 2,376 square feet prototypical home and a standard 1,200 square feet prototypical apartment/condo building. 14   15 Based on historical data as described in the EA, DOE estimates that the majority of Federal low-rise residential construction will be single-family homes built by the Department of Defense (or their privatization contractors), along with some single-family homes and Federal low-rise multi-family buildings built by other agencies, 16 so the results of DOE's first cost analysis are shown in full. The 2018 IECC does increase the first cost of construction of new homes and apartments/condos compared to the 2015 IECC in all climate zones in the United States.

Table IV.2 lists the increased first costs associated with the 2021 IECC for a standard 2,376 square feet prototypical home and a standard 1,200 square feet prototypical apartment/condo building. The 2021 IECC increases the first cost of construction of new homes and apartments/condos compared to the 2018 IECC in all climate zones in the United States.

Table IV.3 combines the incremental first costs associated with the 2018 and 2021 versions of the IECC. In addition to adjusting for inflation (as was done for the values in Table IV.1), the 2018 IECC analysis was adjusted to use the same underlying economic assumptions as the 2021 IECC, including fuel prices, fuel price escalations, labor and material costs, and sales tax rates.

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2021-02-20, Amendment 39-21403 (86 FR 8299, February 5, 2021) (AD 2021-02-20). AD 2021-02-20 applied to HG Model Cabri G2 helicopters, with rotating or non-rotating scissor fitting part number (P/N) G12-00-200, installed on the MRH or swashplate guide, respectively. The NPRM published in the Federal Register on January 31, 2022 (87 FR 4822). In the NPRM, the FAA proposed to retain certain inspection and corrective action requirements of AD 2021-02-20. The NPRM also proposed to require within 60 hours time-in-service (TIS) or 6 months, whichever occurs first after the effective date of the proposed AD, and thereafter at intervals not to exceed 60 hours TIS or 6 months, whichever occurs first, leaving each scissor fitting assembled and visually inspecting each scissor fitting for a crack. If there is a crack during the initial inspection or the recurring inspection, the NPRM proposed to require before further flight, replacing certain parts or as an alternative, installing HG modification (mod) 20-040.

The NPRM proposed to require, within 60 months or during the next main gearbox overhaul, whichever occurs first after the effective date of the proposed AD, removing from service MRH P/N G12-00-100, or G12-00-101, or G12-00-102 and swashplate guideP/N G21-01-101 or G21-01-102 and installing HG mod 20-040. The proposed NPRM also allowed installing HG mod 20-040 to be a terminating action for the initial and recurring visual inspections required by the proposed AD.

Additionally, for any pre-HG mod 20-040 helicopter, as of February 22, 2021 (the effective date of AD 2021-02-20), the NPRM proposed to prohibit installing an MRH or swashplate guide, with a certain part-numbered rotating or non-rotating scissor fitting installed, unless certain actions have been accomplished. For any post-HG mod 20-040 helicopter, as of the effective date of the proposed AD, the NPRM proposed to prohibit installing an MRH or swashplate guide, with a certain part-numbered rotating or non-rotating scissor fitting installed, on any helicopter.

The NPRM was prompted by EASA AD 2021-0155, dated July 2, 2021 (EASA AD 2021-0155), issued by EASA, which is the Technical Agent for the Member States of the European Union, to correct an unsafe condition for HG Cabri G2 helicopters, all manufacturer serial numbers. EASA advises that a design change was developed for the MRH and swashplate guide including installation instructions for the modification. EASA AD 2021-0155 advises the design change requires installing new scissor fitting P/N G12-00-202, which is not affected by stress corrosion cracking. EASA AD 2021-0155 further advises once a helicopter installs a certain part-numbered MRH and a certain part-numbered swashplate guide containing the newly designed scissor fitting, HG mod 20-040 is accomplished. This condition, if not addressed, could result in failure of a rotating or non-rotating scissor fitting and subsequent loss of control of the helicopter.

Accordingly, EASA AD 2021-0155 retains the requirements of EASA AD 2020-0199, dated September 21, 2020, and corrected September 24, 2020 (EASA AD 2020-0199), which prompted AD 2021-02-20, and requires replacement of the MRH and swashplate guide assemblies with assemblies equipped with the newly designed scissor fitting. EASA AD 2021-0155 also increases the interval for the repetitive inspection and prohibits any affected part to be installed on any helicopter that has HG mod 20-040 installed. EASA AD 2021-0155 allows a terminating action for the initial and repetitive inspections if the helicopter has been modified and includes the updated modification 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. This AD is adopted as proposed in the NPRM.

The FAA reviewed Guimbal Service Bulletin SB 20-012, Revision C; SB 20-011, Revision D; and SB 21-007 Revision C, each dated July 22, 2021 (SB 20-012 Rev C, SB 20-011 Rev D, and SB 21-007 Rev C). SB 20-012 Rev C specifies removing the bolts connecting the two scissor fittings P/N G12-00-200 and accomplishing a one-time detailed inspection for a crack in certain areas. SB 20-012 Rev C also specifies reassembling the two scissor fittings using correct bolt torque limits, installing new cotter pins, and reporting any findings to HG customer support.

SB 20-011 Rev D specifies procedures for a recurring inspection after accomplishment of SB 20-012 Rev C of the same areas of the scissor fittings for a crack as SB 20-012 Rev C, except without removing the bolts which connect the two scissor fittings. SB 20-011 Rev D also specifies reporting any findings to HG customer support. SB 21-007 Rev C specifies instructions for installing the newly designed scissor fitting.

This AD also requires Guimbal Service Bulletin SB 20-012, Revision B, dated October 5, 2020 (SB 20-012 Rev B), which the Director of the Federal Register approved for incorporation by reference as of February 22, 2021 (86 FR 8299, February 5, 2021).

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 also reviewed Guimbal Service Bulletin SB 20-011, Revision C, dated October 5, 2020 (SB 20-011 Rev C). SB 20-011 Rev C specifies the same procedures as SB-20-011 Rev D, except SB 20-011 Rev D updates the applicability and references SB 21-007 Rev C.

The FAA reviewed Guimbal Service Bulletin SB 20-011, Revision B, and SB 20-012, Revision A, each dated September 1, 2020 (SB 20-011 Rev B and SB 20-012 Rev A). SB 20-012 Rev A specifies the same procedures as SB 20-012 Rev B, except SB 20-012 Rev B revises the compliance time, adds the EASA AD identification information, and updates the Situation section description. SB 20-011 Rev B specifies the same procedures as SB 20-011 Rev C, except SB 20-011 Rev C adds the EASA AD identification information and updates the Situation section description.

The FAA also reviewed Guimbal Service Bulletin SB 21-007, Revision B, dated April 4, 2021 which states the same procedures as SB 21-007 Rev C, except SB 21-007 Rev C revises the compliance time to coincide with the effective date of EASA AD 2021-0155.

EASA AD 2021-0155 requires detailed inspections, whereas this AD requires cleaning each scissor fitting and visually inspecting each scissor fitting using a flashlight. EASA AD 2021-0155 also requires reporting certain information, whereas this AD does not. EASA AD 2021-0155 requires replacing certain parts if a crack is detected with serviceable parts, whereas this AD requires replacing certain parts with airworthy parts.

The FAA estimates that this AD affects 32 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.

Removing and installing the bolt and cotter pins in the initial inspection takes a minimal amount of time with a minimal parts cost.

Inspecting each scissor fitting takes about 0.5 work-hour for an estimated cost of $43 per fitting, per inspection cycle. There are 2 scissor fittings installed on a helicopter, for an estimated cost of $85 per helicopter and $2,720 for the U.S. fleet, per inspection cycle.

Removing an MRH and swashplate guide and installing the improved MRH and swashplate guide takes about 6 work-hours and parts cost about $1,608 through the parts exchange program for an estimated cost of $2,118 per helicopter and $67,776 for the U.S. fleet. The FAA expects the majority of operators to use the parts exchange program. If not accomplished through the parts exchange program, an improved MRH and swashplate guide costs about $8,695 for an estimated cost of $9,205 per helicopter and $294,560 for the U.S. fleet.

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

Replacement of an MRH due to a crack in the scissor fitting with an airworthy MRH takes about 5 work-hours and parts cost about $7,360 for an estimated cost of $7,785 per helicopter; and replacement of a swashplate guide due to a crack in the scissor fitting with an airworthy swashplate guide takes about 6 work-hours and parts cost about $1,312 for an estimated cost of $1,822 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:

Discussion

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued TCCA AD CF-2021-11, dated March 29, 2021 (TCCA AD CF-2021-11) (also referred to as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for all De Havilland Aircraft of Canada Limited Model DHC-8-401 and -402 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-2021-1068.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all De Havilland Aircraft of Canada Limited Model DHC-8-401 and -402 airplanes. The NPRM published in the Federal Register on December 17, 2021 (86 FR 71594). The NPRM was prompted by reports of bleed air leaks in the wing box area and failure of the leak detection shroud. The NPRM proposed to require removing and inspecting the affected V-band coupling and check valve seals, doing corrective actions if necessary, and replacing the coupling and seals with a redesigned assembly. The FAA is issuing this AD to address the possibility of undetected hot engine bleed air being directed onto aircraft structure, the main landing gear (MLG) emergency release cable, and the static air temperature (SAT) sensor, which could cause the main landing gear emergency release cable to malfunction. See the MCAI for additional background information.

The FAA gave the public the opportunity to participate in developing this final rule. The FAA has considered the comment received. The Air Line Pilots Association, International (ALPA), indicated its support for NPRM.

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

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

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

De Havilland Aircraft of Canada Limited has issued Service Bulletin 84-36-06, dated December 15, 2020. This service information describes procedures for removing the affected V-band coupling and check valve seals, doing a visual inspection of the coupling covers and surrounding area for damage due to bleed air leakage, and replacing the coupling and seals with a redesigned assembly.

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 82 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 coupling cover replacement 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 this on-condition action:

The FAA has received no definitive data on which to base the cost estimates for correcting damage in the area surrounding the coupling covers.

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

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2021-0167, dated July 14, 2021 (EASA AD 2021-0167) (also referred to as the MCAI), to correct an unsafe condition for certain Airbus SAS Model A318-111, -112, -121, and -122 airplanes; Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes; Model A320-211, -212, -214, -215, -216, -231, -232, and -233 airplanes; and Model A321-111, -112, -131, -211, -212, -213, -231, and -232 airplanes. Model A320-215 airplanes are not certificated by the FAA and are not included on the U.S. type certificate data sheet; this AD therefore does not include those airplanes in the applicability.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2018-09-09, Amendment 39-19266 (83 FR 19925, May 7, 2018; corrected May 15, 2018 (83 FR 22354)) (AD 2018-09-09). AD 2018-09-09 applied to certain Airbus Model A318 and A319 series airplanes; all Model A320-211, -212, -214, -216, -231, -232, and -233 airplanes; and all Model A321-111, -112, -131, -211, -212, -213, -231, and -232 airplanes. The NPRM published in the Federal Register on December 21, 2021 (86 FR 72195). The NPRM was prompted by a report indicating that additional affected configurations were identified to be subject to widespread fatigue damage and, for certain airplanes, it was determined that additional modification work (such as, for certain configurations, oversizing certain additional holes, replacing a certain fastener with a corrosion-resistant fastener, or cleat refit and sealant procedure) or revised compliance times are necessary. The NPRM proposed to retain the requirements of AD 2018-09-09 and add airplanes, require different compliance times for certain airplane configurations, and, for certain airplanes, require additional modifications or reduce compliance times, as specified in EASA AD 2021-0167.

The FAA is issuing this AD to prevent fatigue cracking in the stringer attachment holes of the wings, which could result in reduced structural integrity of the wings. See the MCAI for additional background information.

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

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 2021-0167 specifies procedures for modifying the stringer attachments at rib 2 through rib 7 of the left- and right-hand wings. The modification includes oversizing the holes, doing an eddy current inspection of the affected holes for damage, and repairing damage. EASA AD 2021-0167 also specifies additional work for airplanes on which the modification actions were accomplished using certain service information. 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 1,446 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA has received no definitive data on which to base the cost estimates for the on-condition actions or the additional work for certain previously modified airplanes, as specified in 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:

Comments Invited

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2022-0383; Project Identifier MCAI-2022-00264-T” at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, 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 final rule 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 final rule.

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 Dan Rodina, Aerospace Engineer, Large Aircraft Section, FAA, International Validation Branch, 2200 South 216th St., Des Moines, WA 98198; telephone 206-231-3225; email dan.rodina@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2022-0031, dated February 25, 2022 (EASA AD 2022-0031) (also referred to as the MCAI), to correct an unsafe condition for all Airbus SAS Model A350-941 and -1041 airplanes.

This AD was prompted by a report that certain OHDS sensing elements may not properly detect thermal bleed leak events due to a quality escape during the manufacturing process. The FAA is issuing this AD to address undetected thermal bleed leak events that might not be isolated during flight, possibly resulting in localized areas of the wing structure being exposed to high temperatures and consequent reduced structural integrity of the airplane. See the MCAI for additional background information.

EASA AD 2022-0031 specifies procedures for revising the operator's existing MEL to include dispatch restrictions (which, depending on the configuration, includes limiting the number of inoperative days for the OHDS sensing element or requiring certain checks in order to be inoperative) for Airbus A350 Master Minimum Equipment List (MMEL) item 36-22-01, “Air Leak Detection Redundancy.” EASA AD also specifies procedures for a detailed inspection of the affected OHDS sensing elements for discrepancies ( i.e., the related electronic centralized aircraft monitoring (ECAM) alert is not displayed after a heat gun test is done), and applicable replacements (which is not required by this AD, as discussed under “Differences Between this AD and the MCAI).” EASA AD 2022-0031 also prohibits the installation of affected parts.

Kidde Aerospace & Defense Service Bulletin CFD-26-3, dated January 13, 2022, identifies affected OHDS sensing elements (those having certain part numbers and corresponding date codes).

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

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

This AD requires accomplishing the actions specified in EASA AD 2022-0031 described previously, except for any differences identified as exceptions in the regulatory text of this AD and except as discussed under “Differences Between this AD and the MCAI.”

EASA AD 2022-0031 requires operators to “inform all flight crews” of revisions to the operator's existing MMEL, and thereafter to “operate the aeroplane accordingly.” However, this AD does not specifically require those actions as they are already required by FAA regulations.

FAA regulations (14 CFR 121.628(a)(2)) require operators to provide pilots with access to all of the information contained in the operator's existing MEL. Furthermore, 14 CFR 121.628(a)(5) requires airplanes to be operated under all applicable conditions and limitations contained in the operator's existing MEL. Therefore, including a requirement in this AD to operate the airplane according to the revised MEL would be redundant and unnecessary.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, EASA AD 2022-0031 is incorporated by reference in this AD. This AD requires compliance with EASA AD 2022-0031 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 EASA AD 2022-0031 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2022-0031. Service information required by EASA AD 2022-0031 for compliance will be available at https://www.regulations.gov by searching for and locating Docket No. FAA-2022-0383 after this AD is published.

EASA AD 2022-0031 requires an inspection of affected parts for discrepancies within 36 months, and replacing discrepant parts. However, the planned compliance time for the inspection would allow enough time to provide notice and opportunity for prior public comment on the merits of the inspection. Therefore, the FAA is considering further rulemaking to require the inspection and replacement. This AD does not mandate that inspection, instead making it an optional action in this AD. Accomplishing the inspection, and applicable replacements, will constitute terminating action for the revision of the operator's existing MEL required by this AD. The terminating action is specified in paragraph (5) of EASA AD 2022-0031.

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.

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies forgoing notice and comment prior to adoption of this rule because undetected thermal bleed leak events that might not be isolated during flight could result in localized areas of the wing structure being exposed to high temperatures and consequent reduced structural integrity of the airplane. The OHDS sensing elements are critical to continued airworthiness of the airplane because an undetected hot air leak might lead to permanent damage to the surrounding loaded structure. Additionally, the revision of the operator's existing MEL required by this AD must be done within 30 days in order to address the unsafe condition. Accordingly, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(B).

In addition, 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, for the same reasons the FAA found good cause to forgo notice and comment.

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

The FAA estimates that this AD affects 29 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 action that would be required based on the results of any optional actions. The FAA has no way of determining the number of aircraft that might need this on-condition action:

According to the parts 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, 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:

I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port Sector Upper Mississippi River DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. The work for this project has already begun and the NPRM process would hinder the progress of the ongoing work and compromise public safety. We must establish this temporary safety zone immediately and lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying this rule would be contrary to public safety due to ongoing construction work.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Sector Upper Mississippi River (COTP) has determined that potential hazards associated with electrical line work will be a safety concern for anyone operating or transiting within the Upper Mississippi River from MM 172.0 through 172.3. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while electrical line work is being conducted.

Electrical line work has been ongoing near Mile Marker (MM) 172 since March 9, 2022. The safety zone is designed to protect waterway users until work is complete.

No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard (USCG) assigned to units under the operational control of USCG Sector Upper Mississippi River. To seek permission to enter, contact the COTP or a designated representative via VHF-FM channel 16, or through USCG Sector Upper Mississippi River at 314-269-2332. Persons and vessels permitted to enter the safety zone must comply with all lawful orders or directions issued by the COTP or designated representative. The COTP or a designated representative will inform the public of the effective period for the safety zone as well as any changes in the dates and times of enforcement, as well as reductions in size of the safety zone as conditions improve, through Local Notice to Mariners (LNMs), Broadcast Notices to Mariners (BNMs), and/or Safety Marine Information Broadcast (SMIB), as appropriate.

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

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

This regulatory action determination is based on a safety zone located on the Upper Mississippi River at MM 172.0-172.3, near the River City Casino. The Safety Zone is expected to be active only during the hours of 0900-1400, or only when work is being conducted, every day until May 1, 2022.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone encompassing the width of the Upper Mississippi River at MM 172.0-172.3. It is categorically excluded from further review under paragraph L60 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

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

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

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

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Sector Ohio Valley (COTP) has determined that potential hazards associated with the Vision Hospitality Group 25th Anniversary Fireworks starting April 21, 2022, will be a safety concern for anyone within mile marker 464.0 to 464.5 on the Tennessee River. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone during the firework display.

This rule establishes a temporary safety zone from 9:30 p.m. until 10:30 p.m. on April 21, 2022. The safety zone will cover all navigable waters between Mile Marker (MM) 464.0 to 464.5 on the Tennessee River, extending the entire width of the river. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while the fireworks display is occuring. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard assigned to units under the operational control of USCG Sector Ohio Valley.

Vessels requiring entry into this safety zone must request permission from the COTP or a designated representative. To seek entry into the safety zone, contact the COTP or the COTP's representative by telephone at 502-779-5422 or on VHF-FM channel 16.

Persons and vessels permitted to enter this safety zone must transit at their slowest safe speed and comply with all lawful directions issued by the COTP or the designated representative.

The COTP or a designated representative will inform the public through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and Marine Safety Information Bulletins (MSIBs) about this safety zone, enforcement period, as well as any changes in the dates and times of enforcement.

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

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

This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. This safety zone restricts transit on a point five segment of the Tennessee River for 1 hour on one day. Moreover, the Coast Guard would issue Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and Marine Safety Information Bulletins (MSIBs) about this safety zone so that waterway users may plan accordingly for this short restriction on transit, and the rule allows vessels to request permission to enter the zone.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting only 1 hour that will prohibit entry between MM 464.0 to 464.5 on the Tennessee River for the fireworks display. It is categorically excluded from further review under paragraph L60 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. Due to the emergency nature of this rulemaking, a Record of Environmental Consideration is not required.

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

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

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

On July 8, 2020, the Arizona Department of Environmental Quality (ADEQ) submitted a revision to the Arizona SIP titled “Maricopa Association of Governments (MAG) 2020 Eight-Hour Ozone Plan” (“2020 Phoenix-Mesa SIP Submittal”). The 2020 Phoenix-Mesa SIP Submittal includes a 2017 baseline emissions inventory for Phoenix-Mesa developed by the Maricopa Association of Governments. On December 22, 2020, ADEQ submitted a revision to the Arizona SIP titled “Marginal Ozone Plan for the Yuma Nonattainment Area,” and on July 1, 2021, ADEQ provided a technical supplement to its December 22, 2020 SIP revision. ADEQ's December 22, 2020 SIP revision and July 1, 2021 technical supplement include a 2017 baseline emissions inventory for Yuma and are herein referred to collectively as the “2020 Yuma SIP Submittal.”

On October 22, 2021, the EPA proposed to approve the 2020 Phoenix-Mesa SIP Submittal and 2020 Yuma SIP Submittal as meeting the ozone-related baseline emissions inventory requirement for the Phoenix-Mesa and Yuma ozone nonattainment areas, respectively, for the 2015 ozone NAAQS. 1 Our October 22, 2021 proposed rule also discussed the following: Background on the 2015 ozone NAAQS; an overview of the baseline emissions inventory requirements for the 2015 ozone NAAQS under sections sections 172(c)(3) and 182(a)(1) of the CAA and under the EPA's implementing regulations for the 2015 ozone NAAQS at 40 CFR 51.1315; an overview of ADEQ's SIP revisions submitted to meet the ozone baseline emissions inventory requirement for Phoenix-Mesa and Yuma; a discussion of the public notice and hearing procedures conducted by ADEQ to meet the requirements of CAA sections 110(a)(1) and 110(l) and 40 CFR 51.102; and our evaluation of ADEQ's SIP submittals.

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

For the reasons described in our October 22, 2021 proposed action, we are taking final action to approve the 2020 Phoenix-Mesa SIP Submittal and 2020 Yuma SIP Submittal as meeting the ozone-related baseline emissions inventory requirement for the Phoenix-Mesa and Yuma ozone nonattainment areas for the 2015 ozone NAAQS. The emissions inventories in the 2020 Phoenix-Mesa SIP Submittal and 2020 Yuma SIP Submittal contain comprehensive, accurate, and current inventories of actual emissions for all relevant sources in accordance with CAA sections 172(c)(3) and 182(a).

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

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

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

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

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

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

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

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

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

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

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. The Fort McDowell Yavapai Nation, the Gila River Indian Community of the Gila River Indian Reservation, the Tohono O'odham Nation of Arizona, and the Salt River Pima Maricopa Indian Community of the Salt River Reservation have areas of Indian country located within the Phoenix-Mesa nonattainment area for the 2015 ozone NAAQS. The Cocopah Tribe of Arizona and the Quechan Tribe of the Fort Yuma Indian Reservation have areas of Indian country located within the Yuma nonattainment area for the 2015 ozone NAAQS. In those areas of Indian country, this final rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 6, 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 stated in the preamble, the EPA amends chapter I, title 40 of the Code of Federal Regulations as follows:

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

On October 21, 2021 (86 FR 58627), the EPA proposed a limited approval and limited disapproval of the following SIP revisions, that were submitted on August 22, 2018, for incorporation into the California SIP.

We proposed a limited approval because we determined that these revisions improve the SIP and are largely consistent with the relevant CAA requirements. We simultaneously proposed a limited disapproval because some rule provisions conflict with section 110 of the Act. These provisions include the following:

Our proposed action contains more information on the basis for this rulemaking and on our evaluation of the submittal.

The EPA's proposed action provided a 30-day public comment period. During the comment period we received two anonymous comments in support of EPA's October 21, 2021 proposed rule to limit VOC emissions and protect the environment. We acknowledge the comments, and we are approving the regulations that pertain to vapor emissions into the SIP. EPA received one comment from Silvio Mazzella Jr. providing additional reference materials. We acknowledge the additional information noted by the commenter.

We also received one comment from Isabelle Nield, which we respond to below.

Comment: The commenter's primary concern is that “[d]ue to the proposed rule's lack of compliance with the Clean Air Act . . . the rule should [not] be incorporated into the SIP in its current state.” They recommend instead that “the proposed rule should be revised to address the deficiencies, then approved.” Aside from this issue, the commenter notes the value of the proposed SIP revision for air quality in a range of areas, including reduction in outdoor VOCs and interstate emissions exchange from gasoline regulation.

EPA's Response: We understand the commenter to assert that the Executive Officer discretion issue that represents the basis for our limited disapproval of California Code of Regulations, Title 17, Section 94014 is significant enough to warrant not approving the entire rule into the SIP until the issue is corrected. We disagree.

As we noted in our October 21, 2021 proposed rule, a comparison of the revised Section 94014 as a whole with the current SIP-approved version, which was last approved on July 8, 1982, indicates substantial changes to the rule that improve the clarity, specificity, and stringency of the current SIP-approved rule. Additionally, the minor deficiencies the EPA identified in the SIP revision will not result in any degredation in California's air quality with respect to VOCs. As noted in the Technical Support Document found in the docket for our proposed action, at the time of the rule's submittal, CARB had never approved any of the equivalent test methods to Technical Procedure (TP)-204.1, TP-204.2 or TP-204.3 that are the subject of the limited disapproval in the nearly forty years of the rule's enforcement. 1 As a result, a limited approval of this rule will strengthen the SIP and allow the EPA to enforce VOC emissions from cargo tanks with requirements that are more stringent than the rule that is currently in the SIP.

As discussed in our proposed action, documents submitted for inclusion into the SIP should not include unbounded director's discretion that allows the State to approve alternatives to the applicable SIP without following the SIP revision process described in CAA section 110. California Code of Regulations, Title 17, Section 94014, CP-204, Section 5.4, allows the Executive Officer to approve an alternative test procedure in certain situations where EPA Method 301 is not applicable, without approval from the EPA. This authority is then incorporated by reference in TP-204.1, TP-204.2, and TP-204.3. Without further specificity, these provisions represent unbounded director's discretion and constitute a SIP deficiency.

CAA sections 110(k)(3) and 301(a) provide the EPA with the authority to issue a limited approval and limited disapproval action that will strengthen the SIP and require the state to correct for the above SIP deficiency, and the commenter has not provided any information or supplemental evidence that would indicate this action is contrary to CAA requirements. Therefore, the EPA will proceed with the limited approval and limited disapproval of this rule as proposed.

No comments were submitted that change our assessment of the rules as described in our proposed action. Therefore, as authorized in sections 110(k)(3) and 301(a) of the Act, the EPA is finalizing a limited approval of the submitted rule. This action incorporates the submitted rule and referenced test procedures into the California SIP, including those provisions identified as deficient. As authorized under section 110(k)(3) and 301(a), the EPA is simultaneously finalizing a limited disapproval of California Code of Regulations, Title 17, Division 3, Chapter 1, Subchapter 8, Article 1, Section 94014.

As a result, the EPA must promulgate a federal implementation plan (FIP) under section 110(c) unless we approve subsequent SIP revisions that correct the rule deficiencies within 24 months. In addition, the offset sanction in CAA section 179(b)(2) will be imposed 18 months after the effective date of this action, and the highway funding sanction in CAA section 179(b)(1) six months after the offset sanction is imposed. A sanction will not be imposed if the EPA determines that a subsequent SIP submission from the State corrects the identified deficiencies before the applicable deadline.

Note that the submitted rules have been adopted by CARB, and the EPA's final limited disapproval does not prevent CARB from enforcing them. The limited disapproval also does not prevent any portion of the rules from being incorporated by reference into the federally enforceable SIP as discussed in a July 9, 1992 EPA memo found at: https://www.epa.gov/sites/production/files/2015-07/documents/procsip.pdf.

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. The EPA is also finalizing deletion of rules that were previously incorporated by reference from the applicable California SIP. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of Section 94014 and the associated certification procedure and test procedures as described in Table 1 of this preamble, and finalizing the removal of Section 94004 and Method 2-5 also as described in Table 1 from the SIP. The EPA has made, and will continue to make, these documents available through www.regulations.gov and at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

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

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

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities beyond those imposed by state law.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action does not impose additional requirements beyond those imposed by state law. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, will result from this action.

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, because the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction, and will not impose substantial direct costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive order. This action is not subject to Executive Order 13045 because it does not impose additional requirements beyond those imposed by state law.

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

Section 12(d) of the NTTAA directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. The EPA believes that this action is not subject to the requirements of section 12(d) of the NTTAA because application of those requirements would be inconsistent with the CAA.

The EPA lacks the discretionary authority to address environmental justice in this rulemaking.

This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. 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 June 6, 2022. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:

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

The background for this action is described in detail in our March 12, 2021 proposed rule. 1 In the proposed rule, EPA proposed to approve Amendment No. 2 to the North Dakota Regional Haze SIP as described below.

I. Background

EPA is approving a SIP revision submitted on behalf of the State of Georgia by GA EPD through a letter dated September 1, 2020. 1 This revision changes the definition of “pollution control project” (PCP) at Georgia Rule 391-3-1-.01(qqqq) and the scope of the corresponding permitting provisions related to PCPs at Rule 391-3-1-.03(6), “Exemptions,” at subsection (j). Pursuant to Rule 391-3-1-.03(6)(j), 2 PCPs are exempt from the requirement to obtain a minor source construction permit under Georgia Rule 391-3-1-.03(1), “Construction (SIP) Permits.” The submittal first changes the definition of PCP to require that any collateral emissions increase from a PCP must be lower than the emissions thresholds established to exempt cumulative modifications at Rule 391-3-1-.03(6)(i)3.(i)-(v) from minor source construction permitting. 3 Secondly, the definition is changed to revise the list of projects that are presumed to be environmentally beneficial and qualify as PCPs. Lastly, the definition is revised to change rule cross-references for consistency with the revision to the list of projects. The September 1, 2020, SIP revision also makes changes to Rule 391-3-1-.03, “Permits,” at section (6)(j), “Construction Permit Exemption for Pollution Control Projects” to update the cross-references to Rule 391-3-1-.01(qqqq) to correspond to the updated list of projects. The changes to Rule 391-3-1-.03(6) also include minor administrative edits that do not change the meaning of the existing SIP-approved provisions.

On February 10, 2022, EPA published a Notice of Proposed Rulemaking (NPRM) proposing to approve the September 1, 2020, SIP revision regarding updates to Georgia's ambient air quality standard rules. See 87 FR 7786. The February 10, 2022, NPRM provides additional detail regarding the background and rationale for EPA's action. Comments on the February 10, 2022, NPRM were due on or before March 14, 2022. EPA received no comments on the February 10, 2022, NPRM.

Because the aforementioned changes do not alter the universe of sources exempted from minor source construction permitting under the SIP with this revision, Georgia's SIP is not being relaxed. Therefore, EPA believes that these changes are consistent with CAA sections 110(l) and 193, and requirements for minor source permitting in CAA section 110(a)(2)(C) and federal regulations. Thus, EPA is proposing to approve the SIP revision.

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of Georgia Rule 391-3-1-.01, “Definitions” at section (qqqq), state effective on July 29, 2020, which revises the definition of “Pollution control project,” and Georgia Rule 391-3-1-.03(6), “Exemptions,”  4 also state effective on July 29, 2020, which is revised to establish consistency with the revisions to 391-3-1-.01(qqqq). EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 4 office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT Section of this preamble for more information).

EPA is approving the aforementioned changes to the Georgia SIP. Specifically, EPA is approving the revisions to section (qqqq) of Rule 391-3-1-.01, “Definitions” and throughout section 391-3-1-.03(6), “Exemptions.” EPA is approving these changes because they are consistent with the CAA.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. These actions 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 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).

The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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 June 6, 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 stated in the preamble, EPA amends 40 CFR part 52 as follows:

I. Background

On January 13, 2022 (87 FR 2095), EPA published a notice of proposed rulemaking (NPRM) proposing to find that the Sullivan County Area failed to attain the 2010 1-hour SO 2 primary NAAQS  1 by the applicable attainment date of October 4, 2018, based upon a weight of evidence analysis of available quality-assured and certified SO 2 ambient air monitoring data and SO 2 emissions data from January 2015 through December 2017.

EPA designated the Sullivan County Area as nonattainment on August 5, 2013, 2 based on air quality monitoring data from an SO 2 monitor operating at the time of designation (Air Quality System (AQS) Site ID: 47-163-0007). The Sullivan County Area is comprised of a 3-kilometer (km) radius circle centered around the B-253 powerhouse at the Eastman Chemical Company facility in Kingsport, Tennessee (Eastman), which encompasses this SO 2 monitor that was operating at the time of designation. 3 EPA's first round of designations for the 2010 SO 2 NAAQS, including the Sullivan County Area, became effective on October 4, 2013.

Pursuant to CAA section 192(a), the attainment date for the Area was no later than October 4, 2018, which is five years after the effective date of the final action designating the Sullivan County Area as nonattainment for the 2010 SO 2 NAAQS. Under section 179(c) of the CAA, within six months of the attainment date, EPA is required to make a determination, based on the area's air quality as of the attainment date, whether an area attained by that date. If EPA determines that an area failed to attain by the attainment date, EPA is required to publish that determination in the Federal Register . See CAA section 179(c)(2).

On June 25, 2021, EPA entered into a consent decree with the Center for Biological Diversity in the U.S. District Court for the Northern District of California. 4 The consent decree requires EPA to finalize by March 31, 2022, a determination whether the Sullivan County Area attained the 1-hour SO 2 standard by the October 4, 2018, attainment date.

In the January 13, 2022, NPRM, EPA evaluated whether the Sullivan County Area attained the 2010 SO 2 NAAQS by the October 4, 2018, attainment date. For an area to attain the 2010 SO 2 NAAQS by the October 4, 2018, attainment date, the design value based upon monitored air quality data from 2015-2017 at each eligible monitoring site must be equal to or less than 75 ppb for the 1-hour standard. EPA developed a weight of evidence assessment based on available quality-assured and certified air quality monitoring data, and source-specific SO 2 emissions in the Area from January 2015 through December 2017 to support the proposed determination that the Sullivan County Area did not attain the 1-hour SO 2 standard by October 4, 2018.

Air monitoring data in the Sullivan County Area from January 1, 2015, to July 20, 2016, did not meet the quality assurance requirements in 40 CFR part 58 Appendix A and, therefore, were not comparable to the NAAQS. Consequently, a valid 2015-2017 design value could not be determined for the Area. In lieu of a 2015-2017, 3-year design value, EPA reviewed the available quality-assured ambient monitoring data from July 20, 2016, to December 31, 2017, and annual and hourly SO 2 emissions data at Eastman from January 1, 2015, to December 31, 2017, to determine the air quality in the Sullivan County Area as of the applicable attainment date. The available annual 99th percentile daily maximum 1-hour average SO 2 data at each state and local air monitoring station (SLAMS) site  5 within the Sullivan County Area for the 2015-2017 period are presented in Table 1.

The data in Table 1 indicates that although the two sites in the Sullivan County Area did not have complete data in 2015 and 2016 to determine a 3-year design value, both monitors consistently measured 99th percentile daily maximum 1-hour SO 2 concentrations above the 75 ppb level of the 1-hour NAAQS in 2016 and 2017, after beginning operation in mid-2016. Both monitors have complete 2017 datasets.

The primary SO 2 emissions sources in the Area are the coal-fired boilers at Eastman. EPA observed that the annual SO 2 emissions and the hourly SO 2 emissions from the Eastman boilers were significantly higher from January 1, 2015, to June 30, 2016, when air monitoring data are not available, than from July 1, 2016, through December 31, 2017, when air monitoring data are available. Considering that the ambient measured concentrations exceeded the level of the NAAQS in 2016 and 2017, when emissions from the primary sources of SO 2 were lower than they were in 2015, EPA believes it is reasonable to expect that the 99th percentile maximum daily 1-hour SO 2 concentration in 2015 likely also exceeded the level of 75 ppb. Consequently, the three-year average of the 99th percentile value for 2015 (likely exceeded the level of the NAAQS), 2016 (exceeded the level of the NAAQS), and 2017 (exceeded the level of the NAAQS) almost certainly would have resulted in a design value that violated the NAAQS. Thus, EPA finds that this analysis of available quality-assured and certified ambient concentration data and SO 2 emissions data demonstrates by a weight of evidence that the Sullivan County Area failed to attain the 1-hour SO 2 NAAQS by the required attainment date of October 4, 2018.

EPA's January 13, 2022, NPRM provided detailed assessments of the SO 2 monitoring network and emissions data for the primary SO 2 -emitting sources in the Area at Eastman. The NPRM also provided additional background information on the promulgation of the 2010 SO 2 NAAQS, as well as the designation of the Sullivan County Area under the CAA, and EPA's obligation under CAA section 179(c)(1) to determine if an area attained by the statutory attainment date. Lastly, the January 13, 2022, NPRM discussed the consequences for SO 2 nonattainment areas that failed to attain the 1-hour SO 2 standard by the October 4, 2018, attainment date. Comments on the January 13, 2022, NPRM were due on or before February 14, 2022.

EPA received two comments on the January 13, 2022, NPRM, which are included in the docket for this action. The comments do not object to the proposed conclusion that the Sullivan County Area failed to timely attain the NAAQS and are generally in favor of the proposed finding set forth in the January 13, 2022, proposed rulemaking. EPA summarizes and responds to the comments below.

Comment 1: The commenter discusses the findings that EPA outlined in the January 13, 2022, NPRM and generally agrees that a “SIP is needed to more closely monitor Sullivan County and hold them accountable to following the emission standards.” The commenter notes that EPA cites to CAA section 179(d) for the consequences for the failure to meet the SO 2 standard. In addition, the commenter expresses concern that the required SIP “simply passes on responsibility to the State” and will not address the problem quickly and suggests EPA “handle the situation.” The commenter believes EPA has jurisdiction due to the nature of the SO 2 emissions impacting multiple states and that fines should be imposed on the responsible organizations.

Response 1: The commenter does not disagree with EPA's proposed determination that the Sullivan County, Tennessee SO 2 nonattainment area did not attain the 1-hour standard by the October 4, 2018, statutory attainment date. The commenter also supports the requirement for Tennessee to submit a SIP one year after EPA's finding that will provide attainment of the SO 2 standard in the nonattainment area by a new statutory attainment date pursuant to the requirements established at 179(d) of the CAA.

The commenter, however, expresses concern with relying on the State to address the problem, and suggests it would be ideal for EPA to handle the situation. The commenter asserts that EPA should levy fines and should have jurisdiction because of the nature of SO 2 emissions impacting multiple states. As acknowledged by the commenter, EPA is taking this action pursuant to CAA section 179, which specifies the consequences of EPA's determination that the Area did not attain the air quality standard by the applicable attainment date. Specifically, Section 179(d) requires each state with a nonattainment area that fails to attain the standard by the applicable attainment date to submit a SIP revision meeting the requirements of CAA sections 110 and 172 within one year after EPA publishes notice of its determination. Section 172 requires the revision to include, among other elements, a demonstration of attainment (within the period prescribed by CAA section 179(d)), reasonable further progress, and contingency measures. In addition, under CAA section 179(d)(2), the SIP revision must include such additional measures as EPA may reasonably prescribe, including all measures that can be feasibly implemented in the area in light of technological achievability, costs, and any non-air quality and other air quality-related health and environmental impacts. 6

The relevance of the commenter's statements that EPA should have jurisdiction because of the nature of SO 2 emissions impacting multiple states, and that fines should be imposed on the responsible organizations, is unclear. The source-specific nature of the SO 2 standard is not relevant to EPA's obligations prescribed under the Act to ensure states comply with CAA planning requirements within the statutory timeframes. EPA appreciates the commenter's concern and believes the CAA clearly establishes the State's and EPA's respective responsibilities to ensure nonattainment areas demonstrate expeditious attainment of the standards within the period prescribed by CAA section 179(d). Regarding SO 2 emissions impacting multiple states, separate CAA provisions in section 110(a)(2)(D) require SIPs to contain adequate provisions to prohibit source emission activity that could impact another state's ability to attain or maintain the SO 2 standard. 7

Comment 2: The commenter expresses concern about the proposed rule only addressing the SO 2 NAAQS in Sullivan County, Tennessee, and notes the importance of the proposed rule in maintaining the safety of the people. The commenter also brings up negative impacts from SO 2 on human health and the environment and states that “that this is an important issue that I hope gets passed.”

Response 2: The commenter does not object to EPA's proposed determination that the Sullivan County Area failed to timely attain the NAAQS. EPA appreciates the commenter's acknowledgement of the health and environmental impacts from SO 2 pollution. Regarding the commenter's impression that the rule is only beneficial to those living in Sullivan County, EPA notes that the finding of failure to attain is specific to a portion of Sullivan County, Tennessee surrounding Eastman Chemical based on the Agency's 2013 determination that the Area was not attaining the 1-hour SO 2 standard. Since 2013, EPA has determined that areas in the vicinity of large SO 2 -emitting sources in the rest of the state are meeting the health-based 1-hour SO 2 standard based on an assessment of available air quality data. Furthermore, based on EPA's 2010 promulgation of the 1-hour SO 2 standard, states were required to submit a SIP revision to EPA to ensure their SIPs have the necessary provisions to provide for the implementation, attainment, and maintenance of the standard pursuant to section 110(a)(1) and 110(a)(2) of the CAA. Among other elements, this revision must include necessary or appropriate SO 2 emission limits and standards, an appropriate air quality monitoring network, and a permitting program to prevent any construction of new sources or source modifications from deteriorating air quality in areas meeting the NAAQS.

EPA is taking final action to determine that the Sullivan County Area failed to attain the 2010 1-hour primary SO 2 NAAQS by the applicable attainment date of October 4, 2018. As a result of this determination, the State of Tennessee is required under CAA section 179(d) to submit revisions to the Tennessee SIP for the Sullivan County, Tennessee SO 2 nonattainment area to, among other elements, provide for the attainment of the respective standard as expeditiously as practicable but no later than April 5, 2027. At this time, EPA is not prescribing additional measures for the SO 2 SIP revisions under CAA section 179(d)(2). Tennessee is required under CAA section 179(d) to submit a SIP revision meeting the requirements of sections 110 and 172 of the CAA to EPA by April 5, 2023.

Additional information about these statutes and Executive Orders can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

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

This action does not impose an information collection burden under the provisions of the PRA because it does not contain any information collection activities.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities.

This action does not contain any unfunded mandate of $100 million or more, as described in UMRA (2 U.S.C. 1531-1538) and does not significantly or uniquely affect small governments. This action itself imposes no enforceable duty on any state, local, or tribal governments, 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. The finding of failure to attain SO 2 NAAQS does not apply to tribal areas, and the rule does not impose a burden on Indian reservation lands or other areas where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. Thus, this 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.

EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because the effect of this action is to trigger additional planning requirements under the CAA. This action does not establish an environmental standard intended to mitigate health or safety risks.

This rule 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.

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). This action triggers additional planning requirements under the CAA.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. 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 June 6, 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 stated in the preamble, the EPA amends chapter I, title 40 of the Code of Federal Regulations as follows:

I. Background

On December 6, 2018, EPA issued a final rule entitled “Implementation of the 2015 National Ambient Air Quality Standards for ozone: State Implementation Plan Requirements” (SIP Requirements Rule), which establishes the requirements that state, tribal, and local air quality management agencies must meet as they develop implementation plans for areas where air quality exceeds the 2015 8-hour ozone NAAQS. See 83 FR 62998; 40 CFR part 51, subpart CC.

Based on the nonattainment designation for the 2015 8-hour ozone NAAQS, Kentucky was required to develop a SIP revision addressing the requirements of CAA sections 172(c)(5) and 173 for Kentucky's 2015 8-hour ozone Marginal nonattainment areas. See 42 U.S.C. 7502(c). Section 172(c)(5) of the CAA requires each state with a nonattainment area to submit a SIP revision requiring NNSR permits in the nonattainment area in accordance with the permitting requirements of CAA section 173. The minimum SIP requirements for NNSR permitting for the 2015 8-hour ozone NAAQS are located in 40 CFR 51.165. See 40 CFR 51.1314.

On October 15, 2020, Kentucky submitted a SIP revision addressing, among other things, 1 permit program requirements ( i.e., NNSR) for the 2015 8-hour ozone NAAQS for Kentucky's 2015 8-hour ozone Marginal nonattainment areas. Kentucky's October 15, 2020, SIP revision certifies that the version of 401 Kentucky Administrative Regulation 51:052, Review of new sources in or impacting upon nonattainment areas, in the SIP satisfies the federal NNSR requirements for the Kentucky 2015 8-hour ozone Marginal nonattainment areas.

On February 10, 2022, EPA published a Notice of Proposed Rulemaking (NPRM) proposing to approve the October 15, 2020, SIP revision regarding 2015 8-hour Ozone Nonattainment New Source Review Permit Program Requirements for Kentucky's 2015 8-hour ozone Marginal nonattainment areas. See 87 FR 7788. The February 10, 2022, NPRM provides additional detail regarding the background and rationale for EPA's action. Comments on the February 10, 2022, NPRM were due on or before March 14, 2022. EPA received no comments on the February 10, 2022, NPRM.

EPA is approving Kentucky's SIP revision addressing the NNSR requirements for the 2015 8-hour ozone NAAQS for Kentucky's 2015 8-hour ozone Marginal nonattainment areas, submitted on October 15, 2020. EPA has determined that Kentucky's submission fulfills the 40 CFR 51.1314 requirement and meets the requirements of CAA section 172(c)(5) and 173 and the minimum SIP requirements of 40 CFR 51.165.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. 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 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).

The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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 June 6, 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 stated in the preamble, the EPA amends 40 CFR part 52 as follows: