Cybersecurity incidents affecting surface transportation entities are a growing threat that pose a risk to the national and economic security of the United States. In recent years, cyber attackers have maliciously targeted the critical infrastructure of surface transportation modes in the United States, including pipelines, freight railroads, passenger railroads, and rail transit systems, with multiple cyberattack and cyber espionage campaigns. 1 This threat continues to evolve and is ongoing. By targeting the integrated cyber and physical infrastructure of surface transportation entities, these attackers threaten the safe, secure, and uninterrupted daily operation of surface transportation systems relied upon by the U.S. economy with potential to cause nation-wide impact.

In response to this persistent threat, TSA issued two security directives on December 2, 2021, requiring specified surface transportation entities to implement urgently needed measures that immediately enhance the cybersecurity of the surface transportation sector. 2 Specifically, the two materially identical security directives—one applicable to specified freight railroad carriers and the other applicable to specified passenger railroad carriers and rail transit systems—require owner/operators to take the following four crucial actions:

• Designate a Cybersecurity Coordinator who is required to be available to TSA and CISA at all times (all hours/all days) to coordinate implementation of cybersecurity practices, manage cybersecurity incidents, and serve as a principal point of contact with TSA and CISA for cybersecurity-related matters;

• Report cybersecurity incidents to CISA;

• Conduct a Cybersecurity Vulnerability Assessment to identify gaps in current cybersecurity measures, identify remediation measures, and develop a plan for the owner/operator to implement the remediation measures to address any identified vulnerabilities and gaps; and

• Develop a Cybersecurity Incident Response Plan to reduce the risk of operational disruption should their Information and/or Operational Technology systems be affected by a cybersecurity incident.

The actions required by these security directives only apply to specified owner/operators of freight railroads, passenger railroads, and rail transit systems that TSA has determined are higher risk. 3 The covered entities are those that the nation depends on to move passengers and transport freight in support of critical sectors, including national defense. Both security directives became effective on December 31, 2021 and are set to expire on December 31, 2022. 4

On December 2, 2021, TSA also issued a security directive amending a directive issued earlier that year requiring owner/operators of critical pipeline systems and facilities to implement certain cybersecurity measures. On May 26, 2021, TSA issued Security Directive Pipeline-2021-01, which was the first of multiple security directives issued by TSA in 2021 to enhance the cybersecurity of critical pipeline systems in response to the ransomware attack on the Colonial Pipeline Company on May 8, 2021. This first directive required owner/operators to: (1) Report cybersecurity incidents to CISA; (2) appoint a cybersecurity coordinator to be available 24/7 to coordinate with TSA and CISA; and (3) conduct a self-assessment of cybersecurity practices, identify any gaps, and develop a plan and timeline for remediation. 5 This security directive went into effect on May 28, 2021, and was ratified by the TSOB on July 3, 2021. 86 FR 38209. It is set to expire on May 28, 2022.

Security Directive Pipeline-2021-01A, issued on December 2, 2021, amended Security Directive Pipeline-2021-01, updating the definition of cybersecurity incident applicable in the pipeline context to mirror the definition used by the subsequent security directives applicable to specified surface transportation sector entities. TSA's determination to use a modified definition was made following industry input and consultation with DHS cybersecurity experts. The amended definition of cybersecurity incident applicable to critical pipeline owner/operators provides further clarity regarding the nature of incidents that fall within the definition of cybersecurity incident and ensures the consistent identification of incidents that must be reported to CISA across all covered modes of transportation.

On July 19, 2021 TSA issued the second security directive—Security Directive Pipeline-2021-02—in response to the Colonial Pipeline attack, building on the requirements of Security Directive Pipeline-2021-01 to further enhance the cybersecurity of critical pipeline systems. Security Directive Pipeline-2021-02 required owner/operators of critical pipelines to take the following additional actions:

• Implement specified mitigation measures to reduce the risk of compromise from a cyberattack;

• Develop a Cybersecurity Contingency/Response Plan to reduce the risk of operational disruption or functional degradation of information technology and operational technology systems in the event of a malicious cyber intrusion; and

• Test the effectiveness of their cybersecurity practices through an annual cybersecurity architecture design review conducted by a third party.

Security Directive Pipeline-2021-02 became effective on July 26, 2021 and was ratified by the TSOB on August 17, 2021. 86 FR 52953 (September 24, 2021). It is set to expire on July 26, 2022.

On December 17, 2021, TSA issued Security Directive Pipeline-2021-02B, amending Security Directive Pipeline-2021-02 to provide additional flexibility to owner/operators in complying with the directive's requirements. TSA amended the directive's requirements based on industry feedback and following consultation with CISA. The revisions provide pipeline owner/operators with the necessary flexibility to comply with the directive's requirements, while ensuring that the requirements are met in a uniform and operationally safe manner. 6

TSA has broad statutory responsibility and authority to safeguard the nation's transportation system. 7 The TSOB—a body consisting of the Secretary of Homeland Security, the Secretary of Transportation, the Attorney General, the Secretary of Defense, the Secretary of the Treasury, the Director of National Intelligence, or their designees, and a representative of the National Security Council—reviews certain TSA regulations and security directives consistent with law. 8 TSA issued each of these security directives under 49 U.S.C. 114( l )(2)(A), which authorizes TSA to issue emergency regulations or security directives without providing notice or public comment where “the Administrator determines that a regulation or security directive must be issued immediately in order to protect transportation security . . . .”. Security directives issued pursuant to the procedures in 49 U.S.C. 114( l )(2) “shall remain effective for a period not to exceed 90 days unless ratified or disapproved by the Board or rescinded by the Administrator.”  9

Following the issuance of Security Directive 1580-21-01, Security Directive 1582-21-01, and Security Directive Pipeline-2021-01A on December 2, 2021, the chairman of the TSOB convened the board for the purpose of reviewing each directive. Following the issuance of Security Directive Pipeline-2021-02B on December 17, 2021, the chairman again convened the board for the purpose of reviewing that directive. In reviewing the directives, the TSOB reviewed the actions required by Security Directive 1580-21-01 and Security Directive 1582-21-01 to mitigate cybersecurity vulnerabilities in the rail transportation sector; the need for TSA to issue the security directives pursuant to its emergency authority under 49 U.S.C. 114( l )(2) to prevent the disruption and degradation of the country's critical rail transportation infrastructure; Security Directive Pipeline-2021-01A's amended definition of cybersecurity incident applicable to owner/operators of critical pipeline systems and facilities; and the flexibilities provided by Security Directive Pipeline-2021-02B. Following its review, the TSOB ratified all four security directives. The TSOB ratified Security Directive 1580-21-01, Security Directive 1582-21-01, and Security Directive Pipeline-2021-01A on December 29, 2021. The TSOB ratified Security Directive Pipeline-2021-02B on January 13, 2022.

In FR Doc. 2022-10631, appearing in the first column on page 30377 in the Federal Register of Wednesday, May 18, 2022, the following correction is made:

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain serial-numbered Piper Model PA-46-600TP airplanes. The NPRM published in the Federal Register on February 1, 2022 (87 FR 5428). The NPRM was prompted by testing that showed that the wing splice assembly, part number (P/N) 46W57A100-001, could fail before reaching its established life limit on Model PA-46-600TP airplanes. The wing splice assembly was certificated with a life limit of 5,132 hours time-in-service (TIS); however, the failures of the test assembly occurred before reaching that established life limit. The stress levels used in the life limit analysis were not adequate. After a new fatigue test article analysis, Piper reduced the life limit of the wing splice assembly P/N 46W57A100-001 from 5,132 hours TIS to 3,767 hours TIS and revised the Airworthiness Limitations section in the MM accordingly.

In the NPRM, the FAA proposed to require revising the Airworthiness Limitations section of the existing MM or ICA to reduce the life limit of the wing splice assembly. Failure of the wing splice assembly, if not addressed, could result in loss of airplane control. The FAA is issuing this AD to address the unsafe condition on these products.

The FAA received comments from Piper. The following presents the comments received on the NPRM and the FAA's response to each comment.

Piper requested that the FAA update the applicable serial numbers. The applicable serial numbers in the proposed AD were based upon the understanding that airworthiness limitations with the new wing splice assembly life limit would be delivered with new airplanes beginning with serial number 4698186. However, while the AD was in development, airworthiness limitations with the new life limit were actually delivered with new airplanes with serial numbers 4698147, 4698149, and 4698158 and larger.

The FAA agrees and has revised the applicability of this AD accordingly.

Based on its comment regarding the applicable serial numbers, Piper also requested that the FAA revise the estimated Costs of Compliance section. Piper stated that the costs would be reduced because there are fewer affected airplanes.

The FAA agrees that the estimated Costs of Compliance should be updated to reflect the correct number of affected airplanes. However, the FAA's original estimate of the number of affected airplanes was in error. The FAA has corrected that error in the Costs of Compliance section of this final rule, resulting in a higher count of airplanes.

Piper stated that operators cannot physically comply with paragraph (g), Action, of the proposed AD, which proposed to require revising the ALS by reducing the life limit of the wing splice assembly. Piper stated that the ICA are delivered with the airplane in an electronic format on a CD-ROM. Piper requested that the FAA change this action by requiring a logbook entry documenting the change in life limit of the wing splice assembly.

The FAA does not agree that operators are unable to comply with the AD as proposed. While the AD mandates revising the ALS to reduce the life limit, it does not specify any particular method that operators must use to do the revision. One acceptable method is to replace the existing CD-ROM document with a new CD-ROM that includes the new life limit. As long as the ALS of an operator's existing MM or ICA includes the new life limit, then the operator has complied with this AD. The FAA did not change this AD based on this comment.

Piper requested that the FAA revise Note 1 to paragraph (g) of the proposed AD to include the December 4, 2020, version of the ALS. Piper stated the initial life limit reduction for wing splice assembly P/N 46W57A100-001 was introduced in the December 4, 2020, version of the ALS. The August 31, 2021, version of the ALS, which was included in the proposed AD, contains the reduced life limit for wing splice assembly P/N 46W57A100-001 and introduces new part numbers for the wing splice assembly (P/N 46W57A100-002) and a service wing assembly (P/N 46W00A700-702).

The FAA agrees that the December 4, 2020, version of the ALS contains the reduced wing splice assembly life limit, but does not agree that a change to this AD is necessary. As previously explained, the AD does not specify any particular method that operators must use to revise the ALS. One acceptable method is incorporating the life limit specified in Piper Aircraft, Inc. PA-46-600TP, M600 Maintenance Manual, Airworthiness Limitations, Page 1, dated December 4, 2020.

The FAA did not change this AD based on this comment.

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

The FAA reviewed Piper Aircraft, Inc., PA-46-600TP, M600 Maintenance Manual, Airworthiness Limitations, Section 4-00-00, dated August 31, 2021. This service information specifies the life limits of structural parts for the Model PA-46-600TP airplane and reduces the life limit for the wing splice assembly.

The FAA estimates that this AD affects 139 airplanes of U.S. registry.

The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

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

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

In March 2020, the United States Federal Communications Commission (FCC) adopted final rules authorizing flexible use of the 3.7-3.98 GHz band for next generation services, including 5G and other advanced spectrum-based services. 1 Pursuant to these rules, C-Band wireless broadband deployment was permitted to occur in phases with the opportunity for operations in the lower 0.1 GHz of the band (3.7-3.8 GHz) in certain markets beginning on January 19, 2022. This AD refers to “5G C-Band” interference, but wireless broadband technologies, other than 5G, may use the same frequency band. 2 These other uses of the same frequency band are within the scope of this AD since they would introduce the same risk of radio altimeter interference as 5G C-Band.

The radio altimeter is an important aircraft instrument, and its intended function is to provide direct height-above-terrain/water information to a variety of aircraft systems. Commercial aviation radio altimeters operate in the 4.2-4.4 GHz band, which is separated by 0.22 GHz from the C-Band telecommunication systems in the 3.7-3.98 GHz band. The radio altimeter is more precise than a barometric altimeter and for that reason is used where aircraft height over the ground needs to be precisely measured, such as autoland, manual landings, or other low altitude operations. The receiver on the radio altimeter is typically highly accurate, however it may deliver erroneous results in the presence of out-of-band radio frequency emissions from other frequency bands. The radio altimeter must detect faint signals reflected off the ground to measure altitude, in a manner similar to radar. Out-of-band signals could significantly degrade radio altimeter functions during critical phases of flight, if the altimeter is unable to sufficiently reject those signals.

The FAA issued AD 2021-23-12, Amendment 39-21810 (86 FR 69984, December 9, 2021) (AD 2021-23-12) to address the effect of 5G C-Band interference on all transport and commuter category airplanes equipped with a radio (also known as radar) altimeter. AD 2021-23-12 requires revising the limitations section of the existing AFM to incorporate limitations prohibiting certain operations, which require radio altimeter data to land in low visibility conditions, when in the presence of 5G C-Band interference as identified by NOTAM. The FAA issued AD 2021-23-12 because radio altimeter anomalies that are undetected by the automation or pilot, particularly close to the ground ( e.g. , landing flare), could lead to loss of continued safe flight and landing.

Since the FAA issued AD 2021-23-12, Boeing has continued to evaluate potential 5G C-Band interference on aircraft systems that rely on radio altimeter inputs. Boeing issued Boeing Multi Operator Message MOM-MOM-22-0038-01B(R1), dated February 2, 2022 (for Model 707 and 727 operators); Boeing Multi Operator Message MOM-MOM-22-0030-01B(R3), dated March 22, 2022 (for Model MD-10, MD-11, MD-80, and 717 operators); Boeing Multi Operator Message MOM-MOM-22-0040-01B, dated January 17, 2022 (for Model DC-8, DC-9, and DC-10 operators); Boeing MD-10 Flight Crew Operations Manual Bulletin 2-10C, “Operation in airspace affected by 5G signal interference,” dated March 18, 2022; Boeing MD-11 Flight Crew Operations Manual Bulletin 2-18C, “Operation in airspace affected by 5G signal interference,” dated March 18, 2022; and Boeing MD-80 Flight Crew Operations Manual Bulletin 80-2-019B, “Operation in airspace affected by 5G signal interference,” dated February 1, 2022; and Boeing 717 Flight Crew Operating Manual Bulletin FAB2 717-2-016C, “Operation in airspace affected by 5G signal interference,” dated March 18, 2022.

Based on Boeing's data, the FAA identified an additional hazard presented by 5G C-Band interference on The Boeing Company Model 707 and 727 airplanes; Model 717-200 airplanes; Model DC-8-10, DC-8-20, DC-8-30, and DC-8-40 airplanes; DC-8-50, DC-8-60, DC-8-60F, DC-8-70, DC-8-70F series airplanes; Model DC-8F-54 and DC-8F-55 airplanes; Model DC-9-10, DC-9-20, DC-9-30, DC-9-40, and DC-9-50 series airplanes; Model DC-10-10, DC-10-10F, DC-10-15, DC-10-30, DC-10-30F (KC-10A and KDC-10), DC-10-40, and DC-10-40F airplanes; Model MD-10-10F and MD-10-30F airplanes; Model MD-11 and MD-11F airplanes; Model DC-9-81 (MD-81), DC-9-82 (MD-82), DC-9-83 (MD-83), DC-9-87 (MD-87), and MD-88 (collectively described, in this preamble, as MD-80  3 ) airplanes; and Model MD-90-30 airplanes. The FAA determined that anomalies due to 5G C-Band interference may affect multiple other airplane systems using radio altimeter data, regardless of the approach type or weather. These anomalies may not be evident until very low altitudes. Impacted systems depend on the airplane model and include, but are not limited to, flight guidance, autothrottle system, flight controls, traffic alert and collision avoidance system (TCAS), ground proximity warning system (GPWS), windshear advisory and guidance system (WAGS), and central aural warning system (CAWS).

The effects on these impacted systems include:

• Flight Guidance (for Model 717, MD-10, and MD-11 airplanes): Glideslope guidance sensitivity may be affected when conducting Category I ILS approaches to barometric altitude (BARO) minimums. During missed approach, pilot inputs into the flight control panel (FCP) may not result in commands to the flight director to provide speed or heading guidance, and may not provide altitude capture guidance. Simulator testing for Model MD-11 airplanes showed that in some cases the system will bias the flight director bars out of view when presented with the expected erroneous radio altimeter data, providing immediate and compelling information to the flightcrew to perform a go-around. If the flight director bars remain in view, appropriate guidance is still displayed, and other systems' effects are sufficient to elicit proper pilot response to land (if visual) or conduct a go-around. Similar effects are expected for Model 717 and MD-10 airplanes due to similar system architecture.

• Flight Guidance (for Model 707, 727, DC-8, DC-9, DC-10, MD-80, and MD-90 airplanes): Glideslope guidance sensitivity may be affected when conducting Category I ILS approaches to BARO minimums.

• Flight Guidance (for Model 717, MD-10, MD-11, MD-80, and MD-90 airplanes): As specified in the operating procedures in paragraph (h) of this AD, non-precision approaches can be flown using LNAV/VNAV with flight directors, autopilot, and autothrottle to published BARO minimums.

• Autothrottle System (for Model 717, MD-10, and MD-11 airplanes): RETARD, FMA RETARD, ALIGN, and FLARE functions and indications may be unreliable and may occur early, late, or not at all. If the autothrottle system is not in the FLARE mode, LO SPD protection can engage and advance with autothrottles ON or OFF.

• Autothrottle System (for Model 707, 727, DC-8, DC-9, DC-10, MD-80, and MD-90 airplanes): Potentially erroneous autothrottle commands.

• Flight Controls (for Model 717, MD-10, and MD-11 airplanes): Auto ground spoiler function may require manual extension. For Model MD-11 airplanes, longitudinal stability augmentation system (LSAS) and low altitude stability enhancement (LASE) may not function properly. The pitch attitude hold (PAH) may not wash out on schedule. Positive nose lowering (PNL) and pitch rate damping (PRD) may not be available during landing. Pitch attitude protection (PAP) may activate early, or not at all. If PAP is activated early, it may resist increasing pitch attitude, necessitating additional column pull force.

• TCAS: May be unreliable and resolution advisories and voice warnings may not be inhibited below 1,000 feet above ground level (AGL).

• Enhanced ground proximity warning system (E-GPWS) and WAGS: May be unreliable and activate early, late, or not at all.

• CAWS: CAWS annunciations may not provide proper aural warnings or altitude callouts and/or radio altimeter displayed values during flare.

• Other simultaneous flight deck effects associated with the 5G C-Band interference could increase pilot workload.

These erroneous indications and annunciations, as well as conflicting information, may be provided to the flightcrew during critical phases of flight. There may also be a lack of cues present to elicit prompt go-around or recovery initiation. These effects could lead to reduced ability of the flightcrew to maintain safe flight and landing of the airplane and are an unsafe condition.

To address this unsafe condition, this AD mandates procedures for operators to incorporate specific operating procedures for, depending on the airplane model, ILS approaches, non-precision approaches, ground spoiler deployment, and go-around and missed approaches, when in the presence of 5G C-Band interference as identified by NOTAMs.

Finally, the FAA notes that AD 2021-23-12 remains in effect and prohibits certain ILS approaches. Thus, this AD addresses procedures applicable only to those ILS approaches not already prohibited by AD 2021-23-12.

The FAA is issuing this AD to address the unsafe condition on these products.

The FAA is issuing this AD because the agency has determined the unsafe condition described previously is likely to exist or develop in other products of these same type designs.

This AD requires revising the limitations and operating procedures sections of the existing AFM to incorporate specific operating procedures for, depending on the airplane model, ILS approaches, non-precision approaches, ground spoiler deployment, and go-around and missed approaches, when in the presence of 5G C-Band interference as identified by NOTAMs.

Section 91.9 prohibits any person from operating a civil aircraft without complying with the operating limitations specified in the AFM. FAA regulations also require operators to furnish pilots with any changes to the AFM (14 CFR 121.137) and pilots in command to be familiar with the AFM (14 CFR 91.505).

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

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 the FAA determined that radio altimeters cannot be relied on to perform their intended function if they experience interference from wireless broadband operations in the 5G C-Band. The FAA recently determined that as a result of this interference, certain airplane systems may not properly function during approach, landings, and go-arounds, resulting in increased flightcrew workload while on approach with the flight director, autothrottle, or autopilot engaged. This increased flightcrew workload could lead to reduced ability of the flightcrew to maintain safe flight and landing of the airplane. The urgency is based on the hazard presented by 5G C-Band interference and on the ongoing C-Band wireless broadband deployment. 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 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-2022-0509 and Project Identifier AD-2022-00338-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 Eric Igama, Aerospace Engineer, Systems and Equipment Section, FAA, Los Angeles ACO Branch, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5388; email: Roderick.Igama@faa.gov. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The requirements of the Regulatory Flexibility Act (RFA) do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because 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 476 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

On May 3, 2022, the FAA issued Emergency AD 2022-10-51 for Airbus Helicopters Model AS350B, AS350B1, AS350B2, AS350B3, AS350BA, AS350D, AS355E, AS355F, AS355F1, AS355F2, AS355N, AS355NP, EC130B4, and EC130T2 helicopters; and Airbus Helicopters Deutschland GmbH (AHD) Model EC135P1, EC135P2, EC135P2+, EC135P3, EC135T1, EC135T2, EC135T2+, EC135T3, MBB-BK 117 C-2, MBB-BK 117 D-2, and MBB-BK 117 D-3 helicopters. Emergency AD 2022-10-51 requires removing certain part-numbered and serial-numbered flight control Flexball cables from service and prohibits installing those flight control Flexball cables on any helicopter. Emergency AD 2022-10-51 also requires reporting certain information to Airbus Helicopters or AHD, as applicable. The FAA sent the emergency AD to all known U.S. owners and operators of these helicopters. That action was prompted by EASA Emergency AD 2022-0077-E, dated April 29, 2022 (EASA AD 2022-0077-E), to correct an unsafe condition for Airbus Helicopters (AH), formerly Eurocopter, Eurocopter France, Aerospatiale, Model AS 350 B, AS 350 B1, AS 350 B2, AS 350 B3, AS 350 BA, AS 350 BB, AS 350 D, AS 355 E, AS 355 F, AS 355 F1, AS 355 F2, AS 355 N, AS 355 NP, EC 130 B4, and EC 130 T2 helicopters, all serial numbers (S/Ns); and Airbus Helicopters Deutschland GmbH (AHD), formerly Eurocopter Deutschland GmbH, Eurocopter España S.A., Model EC 135 T1, EC 135 T2, EC 135 T2+, EC 135 T3, EC 135 P1, EC 135 P2, EC 135 P2+, EC 135 P3, EC 635 T1, EC 635 T2+, EC 635 T3, EC 635 P2+, EC 635 P3, MBB-BK 117 D-2, MBB-BK 117 D-3, MBB-BK 117 D-3m, and MBB-BK 117 C-2 helicopters, all S/Ns.

The FAA is issuing this AD to address non-conforming flight control Flexball cables, which, if not addressed, could result in increased friction inside the flight control Flexball cables, jamming of the flight controls, and subsequent loss of control of the helicopter. See EASA AD 2022-0077-E for additional background information.

EASA AD 2022-0077-E requires replacing affected flight control Flexball cables with a serviceable part and prohibits installing an affected flight control Flexball cable on any helicopter.

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

The FAA reviewed Airbus Helicopters Emergency Alert Service Bulletin (EASB) AS350 67.00.81, AS355 67.00.49, and EC130 67A023, which are co-published as one document along with AS550 67.00.45 (military) and AS555 67.00.34 (military), EASB EC135-67A-043, EASB EC135H-67A-016, EASB MBB-BK117 C-2-67A-032, and EASB MBB-BK117 D-2-67A-021, each Revision 0 and dated April 29, 2022. This service information specifies procedures for determining if an affected Flexball is installed. If an affected Flexball is installed, or if it cannot be determined if an affected Flexball is installed, this service information specifies procedures for replacing the Flexball, returning the removed Flexball to the supplier, and completing and emailing a reply form sheet to Airbus Helicopters Customer Support or Airbus Helicopters Service Bulletin Germany, depending on your model helicopter.

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

This AD requires accomplishing the actions specified in EASA AD 2022-0077-E, described previously, as IBRed, 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 EASA AD.”

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 2022-0077-E is IBRed in this FAA final rule. This AD, therefore, requires compliance with EASA AD 2022-0077-E 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 2022-0077-E 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 2022-0077-E. Service information referenced in EASA AD 2022-0077-E for compliance will be available at https://www.regulations.gov by searching for and locating Docket No. FAA-2022-0519 after this final rule is published.

EASA AD 2022-0077-E applies to Airbus Helicopters Model AS 350 BB helicopters and Airbus Helicopters Deutschland GmbH (AHD) Model EC 635 T1, EC 635 T2+, EC 635 T3, EC 635 P2+, EC 635 P3, and MBB-BK 117 D-3m helicopters. This AD does not apply to those model helicopters because those models are not FAA type-certificated and are not included on the U.S. type certificate data sheet (TCDS), except where the TCDS explains that the Model EC635T2+ helicopter having serial number 0858 was converted from Model EC635T2+ to Model EC135T2+. The service information referenced in EASA AD 2022-0077-E specifies sending removed Flexball cables to the supplier; whereas, this AD requires removing an affected part from service. EASA AD 2022-0077-E specifies that a single ferry flight without passengers is allowed to a maintenance location where the action required by the AD can be accomplished; whereas this AD may allow a special flight permit or continuous authorization flight for a single flight, provided that there are no passengers onboard and that there is no noticeable increase in friction in the flight control system. EASA AD 2022-0077-E does not require reporting information; whereas, this AD does.

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 required the immediate adoption of Emergency AD 2022-10-51, issued on May 3, 2022, to all known U.S. owners and operators of these helicopters. The FAA found that the risk to the flying public justified waiving notice and comment prior to adoption of this rule because the affected component is part of the flight control system and is critical to the control of a helicopter. A non-conforming flight control Flexball cable, if not corrected, could result in jamming of the flight controls during various operations and phases of flight, and over various terrains. Additionally, the FAA has no information pertaining to how quickly the condition may propagate to failure. In light of this, the initial actions required by this AD must be accomplished before next flight. These conditions still exist, therefore, 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 forego notice and comment.

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-2022-0519; Project Identifier MCAI-2022-00589-R” 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 Kristi Bradley, Program Manager, COS Program Management Section, Operational Safety Branch, Compliance & Airworthiness Division, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5110; email kristin.bradley@faa.gov. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The requirements of the Regulatory Flexibility Act (RFA) do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because 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 up to 1,785 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this AD.

Replacing a flight control Flexball cable takes about 8 work-hours and parts cost about $804 to $13,555, depending on part number, for an estimated cost of $1,484 to $14,235 per helicopter and up to $437,780 to $4,199,325 for the U.S. fleet (there are up to 295 affected flight control Flexball cables installed in the U.S. fleet). Reporting information takes about 0.5 work-hour for an estimated cost of $43 per helicopter and up to $76,755 for the U.S. fleet.

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to be approximately 0.5 hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. All responses to this collection of information are mandatory. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to: Information Collection Clearance Officer, Federal Aviation Administration, 10101 Hillwood Parkway, Fort Worth, TX 76177-1524.

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, I certify that this AD:

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

(2) Will not affect intrastate aviation in Alaska.

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all CFM LEAP-1A23, LEAP-1A24, LEAP-1A24E1, LEAP-1A26, LEAP-1A26CJ, LEAP-1A26E1, LEAP-1A29, LEAP-1A29CJ, LEAP-1A30, LEAP-1A32, LEAP-1A33, LEAP-1A33B2, and LEAP-1A35A model turbofan engines. The NPRM published in the Federal Register on January 18, 2022 (87 FR 2563). The NPRM was prompted by the manufacturer's detection of melt-related freckles in the billet, which may reduce the life of certain compressor rotor stages 6-10 spools, HPT rotor interstage seals, HPT rotor stage 2 disks, LPT stage 1 disks, LPT stage 2 disks, LPT stage 3 disks, and LPT stage 4 disks (life-limited parts (LLPs)). Through the manufacturer's investigation, it was determined that these LLPs may have subsurface anomalies that developed during the manufacturing process, resulting in a lower life capability. In the NPRM, the FAA proposed to require revising the ALS of the CFM LEAP-1A ESM, as applicable to each affected engine model, and the operator's existing approved CAMP to incorporate reduced life limits for certain LLPs. In the NPRM, the FAA also proposed to require operators to remove certain LPT stage 4 disks, identified by S/N, before reaching their new life limits. The LPT stage 4 disks, identified by S/N in Figure 1 to paragraph (g)(2) of the NPRM, were discovered by the manufacturer after publication of the ALS revision.

After the NPRM was issued, CFM revised its service information by including additional part numbers for newly manufactured parts that did not exist prior to NPRM publication. Accordingly, the FAA has revised paragraph (g)(1)(iii) of this AD to require operators to update the ALS of the applicable CFM LEAP-1A ESM and the operator's existing approved CAMP to include CFM Low Pressure Turbine Rotor Life Limits LEAP 1A-05-11-04-01A-0B1B-C, Issue 010-00, dated February 15, 2022, instead of CFM Low Pressure Turbine Rotor Life Limits LEAP 1A-05-11-04-01A-0B1B-C, Issue 009-00, dated June 1, 2021.

The FAA has also added a credit for previous actions paragraph to this AD, providing credit to operators that incorporated CFM Low Pressure Turbine Rotor Life Limits LEAP 1A-05-11-04-01A-0B1B-C, Issue 009-00, dated June 1, 2021, into the ALS of the applicable ESM and the operator's existing approved CAMP prior to the effective date of this AD.

The FAA is issuing this AD to address the unsafe condition on these products.

The FAA received comments from two commenters. The commenters were American Airlines (AA) and Air Line Pilot Association, International (ALPA). The following presents the comments received on the NPRM and the FAA's response to each comment.

AA requested that the FAA add “. . . or later” to the following ALS references in paragraph (g) of this AD to allow for the use of future revisions;

(i) CFM High Pressure Compressor Rotor Life Limits LEAP 1A-05-11-02-01A-0B1B-C, Issue 010-00, dated September 15, 2021, or later;

(ii) CFM High Pressure Turbine Rotor Life Limits LEAP 1A-05-11-03-01A-0B1B-C, Issue 007-00, dated September 15, 2021, or later; and

(iii) CFM Low Pressure Turbine Rotor Life Limits LEAP 1A-05-11-04-01A-0B1B-C, Issue 009-00, dated June 1, 2021, or later.

AA stated that they are currently using Issues 7, 9, and 10 of the referenced service information and their ALS and CAMP are already in compliance with this AD. AA also stated that CFM continues to update the referenced service information and Issues 7, 9, and 10 will be further revised. As a result, the requirements of this AD will cause AA to use outdated service information.

The FAA disagrees with adding “or later” when referencing the service information in paragraph (g) of this AD. Future revisions of the service information have not yet been published by the manufacturer or reviewed by the FAA. A request for an alternative method of compliance can be submitted to the FAA if future revisions of the service information referenced in paragraph (g) of this AD are published. Additionally, if future revisions of the service information are published by the manufacturer and approved by the FAA, the FAA may consider further rulemaking.

AA requested that the FAA add a new paragraph (h)(3) to this AD to allow credit for previous actions associated with the required actions proposed in paragraph (g)(1)(iii) of the NPRM, similar to the credit paragraphs proposed in (h)(1) and (h)(2) of the NPRM. AA requested that the new paragraph (h)(3) provide credit to operators if CFM Low Pressure Turbine Rotor Life Limits LEAP 1A-05-11-04-01A-0B1B-C, Issue 008-00 was incorporated into the ALS of the applicable ESM and the operator's existing approved CAMP prior to the effective date of this AD.

The FAA notes that CFM Low Pressure Turbine Rotor Life Limits LEAP 1A-05-11-04-01A-0B1B-C, Issue 009-00, dated June 1, 2021, was the first issue of this service information to include the reduced life limits for that module as a result of the investigation into melt-related freckles in the billet. Issue 008-00 and earlier issues do not include the reduced life limits so the FAA will not provide credit for issues released prior to Issue 009-00. Since the FAA issued the NPRM, the manufacturer published CFM Low Pressure Turbine Rotor Life Limits LEAP 1A-05-11-04-01A-0B1B-C, Issue 010-00, dated February 15, 2022. As a result, the FAA has added paragraph (h)(3) to this AD, providing credit for actions required by paragraph (g)(1)(iii) of this AD if CFM Low Pressure Turbine Rotor Life Limits LEAP 1A-05-11-04-01A-0B1B-C, Issue 009-00, dated June 1, 2021, was incorporated into the ALS of the applicable ESM and the operator's existing approved CAMP prior to the effective date of this AD.

ALPA expressed support for the AD as written.

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

The FAA reviewed CFM High Pressure Compressor Rotor Life Limits LEAP 1A-05-11-02-01A-0B1B-C, Issue 010-00, dated September 15, 2021 (CFM LEAP 1A-05-11-02-01A-0B1B-C); CFM High Pressure Turbine Rotor Life Limits LEAP 1A-05-11-03-01A-0B1B-C, Issue 007-00, dated September 15, 2021 (CFM LEAP 1A-05-11-03-01A-0B1B-C); and CFM Low Pressure Turbine Rotor Life Limits LEAP 1A-05-11-04-01A-0B1B-C, Issue 010-00, dated February 15, 2022 (CFM LEAP 1A-05-11-04-01A-0B1B-C). CFM LEAP 1A-05-11-02-01A-0B1B-C provides the new life limits for the high-pressure compressor, CFM LEAP 1A-05-11-03-01A-0B1B-C provides the new life limits for the HPT rotor, and CFM LEAP 1A-05-11-04-01A-0B1B-C provides the new life limits for the LPT rotor. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

The FAA reviewed CFM LEAP 1A-05-11-02-01A-0B1B-C, Issue 009-00, dated July 26, 2021; CFM LEAP 1A-05-11-03-01A-0B1B-C, Issue 006-00, dated July 26, 2021, and CFM LEAP 1A-05-11-04-01A-0B1B-C, Issue 009, dated June 1, 2021. This service information provides the new life limits for the LLPs.

The FAA also reviewed CFM Service Bulletin (SB) LEAP-1A-72-00-0413-01A-930A-D, Issue 004-00, dated December 11, 2021 (CFM SB LEAP-1A-72-00-0413-01A-930A-D). CFM SB LEAP-1A-72-00-0413-01A-930A-D specifies procedures for removing and replacing the LLPs, and provides new life limits for certain S/Ns of the LLPs.

The FAA estimates that this AD affects 256 engines installed on airplanes of U.S. registry. The FAA estimates that 256 engines installed on airplanes of U.S. registry require revising the ALS of the CFM LEAP-1A ESM and the operator's existing approved CAMP.

The FAA estimates that zero airplanes of U.S. registry require replacement of the LPT stage 4 disk.

The FAA estimates the following costs to comply with this AD:

The FAA estimates the following costs to replace the LPT stage 4 disk:

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 2021-0208, dated September 15, 2021 (EASA AD 2021-0208) (also referred to as the MCAI), to correct an unsafe condition for all Airbus SAS Model A350-941 and -1041 airplanes.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2021-13-06, Amendment 39-21611 (86 FR 40934, July 30, 2021) (AD 2021-13-06). AD 2021-13-06 applied to certain Airbus SAS Model A350-941 and -1041 airplanes. The NPRM published in the Federal Register on February 9, 2022 (87 FR 7397). The NPRM was prompted by a determination that new or more restrictive airworthiness limitations are necessary. The NPRM proposed to continue to require the actions in AD 2021-13-06 and require revising the existing maintenance or inspection program, as applicable, to incorporate additional new or more restrictive airworthiness limitations, as specified in EASA AD 2021-0208.

The FAA is issuing this AD to address hazardous or catastrophic airplane system failures. See the MCAI for additional background information.

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

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

EASA AD 2021-0208 describes new or more restrictive airworthiness limitations for airplane structures and safe life limits.

This AD also requires EASA AD 2020-0211, dated October 5, 2020, and EASA AD 2021-0026, dated January 20, 2021, which the Director of the Federal Register approved for incorporation by reference as of September 3, 2021 (86 FR 40934, July 30, 2021).

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

The FAA estimates the total cost per operator for the retained actions from AD 2021-13-06 to be $7,650 (90 work-hours × $85 per work-hour).

The FAA has determined that revising the existing maintenance or inspection program takes an average of 90 work-hours per operator, although the agency recognizes that this number may vary from operator to operator. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate.

The FAA estimates the total cost per operator for the new proposed actions to be $7,650 (90 work-hours × $85 per work-hour).

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

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

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

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

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

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

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2020-26-13, Amendment 39-21368 (85 FR 84201, December 28, 2020) (AD 2020-26-13). AD 2020-26-13 applied to Sikorsky Model S-92A helicopters with forward root fitting part number (P/N) 92209-07111-101 or 92070-20125-101; or stabilizer strut fitting P/N 92209-07404-041, 92209-07403-041, or 92070-20117-041 installed on horizontal stabilizer assembly (stabilizer assembly) P/N 92070-20117-045, 92070-20117-046, 92070-20125-041, 92070-20125-042, 92070-20125-043, 92070-20125-044, 92205-07400-043, or 92205-07400-045. The NPRM published in the Federal Register on February 23, 2022 (87 FR 10115). The NPRM was prompted by the discovery that incorrect P/Ns were identified in the Applicability and the Required Actions paragraphs of AD 2020-26-13. Additionally, after the FAA issued AD 2020-26-13, Sikorsky notified the FAA that an additional repetitive inspection of certain parts of the stabilizer strut assembly is required to prevent the unsafe condition. Finally, after the FAA issued AD 2020-26-13, Sikorsky requested and the FAA approved a global Alternative Method of Compliance (AMOC) to allow only removing parts from service that are cracked, corroded, or have fretting, deformation, or wear rather than require removing the upper and lower support strut rod ends, including lug and conical fitting and both upper and lower attachment fittings on the stabilizer from service.

In the NPRM, the FAA proposed to expand the applicability of AD 2020-26-13 by adding an additional part-numbered stabilizer assembly. The NPRM also proposed to correct paragraph (g)(4) of the Required Actions so that the installation of the titanium stabilizer strut fitting is terminating action for the 50-hour time-in-service (TIS) inspections of the aluminum stabilizer strut fitting. The NPRM also proposed to require an additional repetitive inspection of certain parts of the stabilizer strut assembly. Finally, the NPRM proposed to incorporate the FAA approved global AMOC.

The FAA received a comments from Sikorsky stating that in the section titled “Actions Since AD 2020-26-13 Was Issued” of the NPRM, the part number specified (92070-20117-04) is incorrect and should be 92070-20117-041. The FAA acknowledges this comment; however, the part number is not used in the “Background” section of this final rule. In light of this, the commenter's request no longer applies.

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

This AD continues to require S-92 Maintenance Manual, SA S92A-AMM-000, Temporary Revision (TR) 55-33, dated March 24, 2020 (TR 55-33), which the Director of the Federal Register approved for incorporation by reference as of February 1, 2021 (85 FR 84201, December 28, 2020).

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

The FAA reviewed S-92 Maintenance Manual SA S92A-AWL-000, TR No. 4-58, dated October 2, 2017 (TR 4-58), and S-92 Maintenance Manual SA S92A-AWL-000, TR No. 4-66 dated November 20, 2019 (TR 4-66). This service information revises Task 4-00-00-200-000, Table 1 Replacement Schedule, dated November 30, 2015. Both TR 4-58 and 4-66 revise the Airworthiness Limitations Schedule by removing certain part-numbered components, introducing new part-numbered components, and establishing replacement intervals and recurring inspections for the forward root fitting and the horizontal stabilizer strut fitting. TR 4-58 also specifies inspecting the horizontal stabilizer and attaching hardware at a recurring interval of 250 hours TIS.

The service information requires returning affected parts to a Sikorsky specialist; this AD does not.

The FAA estimates that this AD affects 82 helicopters of U.S. registry. Labor costs are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this AD.

Visually inspecting the stabilizer assembly and attached hardware takes about 3 work-hours for an estimated cost of $255 per helicopter and $20,910 for the U.S. fleet per inspection cycle.

If required, replacing a hat bushing and both upper fittings and lower fittings takes about 1 work-hour and parts cost about $10,000 for an estimated cost of $10,085 per replacement.

If required, replacing the upper and lower support strut rod ends, including lug and conical fitting, takes about 1 work-hour and parts cost about $10,000 for an estimated cost of $10,085 per replacement.

If required, replacing Mylar washers takes about 0.5 work-hour and parts cost about $76 for an estimated cost of $119 per replacement.

If required, performing a fluorescent penetrant inspection takes about 3 work-hours for an estimated cost of $255 per inspection.

If required, replacing a stabilizer assembly takes about 6 work-hours and parts cost about $312,000 for an estimated cost of $312,510 per replacement.

If required, replacing a forward root fitting takes about 10 work-hours and parts cost about $25,000 for an estimated cost of $25,850 per replacement.

If required, replacing a stabilizer strut fitting takes about 10 work-hours and parts cost about $10,000 for an estimated cost of $10,850 per replacement.

If required, replacing a forward root fitting and an aft attachment fitting takes about 20 work-hours and parts cost about $50,000 for an estimated cost of $51,700 per replacement.

If required, removing wear or corrosion and applying corrosion preventative compound takes about 0.5 work-hour and parts cost a nominal amount for an estimated cost of $43 per action.

If required, replacing a stabilizer attachment bolt and barrel nut set takes about 1 work-hour and parts cost about $500 for an estimated cost of $585 per replacement.

If required, replacing a fastener takes about 0.1 work-hour and parts cost a nominal amount for an estimated cost of $9 per fastener.

If required, removing the abrasion-resistant Teflon coating to inspect each forward and aft attachment fitting mating surface takes about 5 work-hours for an estimated cost of $425 per inspection.

If required, applying alodine or equivalent and applying abrasion-resistant Teflon coating takes about 5 work hours with minimal parts cost for an estimated cost of $425 per application.

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

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

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

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

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

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

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

The FAA 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-2022-0518; Project Identifier MCAI-2021-00822-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 Vladimir Ulyanov, Aerospace Engineer, Large Aircraft Section, FAA, International Validation Branch, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3229; email vladimir.ulyanov@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 2021-0166, dated July 13, 2021 (EASA AD 2021-0166) (also referred to as the MCAI), to correct an unsafe condition for certain Airbus SAS Model A320-214, -251N, and -271N airplanes.

This AD was prompted by reports that damaged seat rail covers were detected in the forward and aft seat fixation area of some airplanes during initial delivery. The FAA is issuing this AD to address deformation or compression of the seat rail covers caused by improper transportation, handling or installation on the airplane. This condition, if not addressed, could lead to seat track detachment, possibly resulting in injury to passengers. See the MCAI for additional background information.

EASA AD 2021-0166 specifies procedures for a detailed inspection of the affected parts and corrective actions. Corrective actions include replacement of the seat or the seat rail covers. 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.

These products have been approved by the aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with 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 these same type designs.

This AD requires accomplishing the actions specified in EASA AD 2021-0166 described previously, except for any differences identified as exceptions in the regulatory text of this AD.

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 2021-0166 is incorporated by reference in this AD. This AD requires compliance with EASA AD 2021-0166 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 2021-0166 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 2021-0166. Service information required by EASA AD 2021-0166 for compliance will be available at https://www.regulations.gov by searching for and locating Docket No. FAA-2022-0518 after this AD is published.

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

The 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.

Currently, there are no affected U.S.-registered airplanes. If an affected airplane is imported and placed on the U.S. Register in the future, the FAA provides the following cost estimates to comply with this AD:

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

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

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

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:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes the Class E airspace extending upward from 700 feet above the surface at Dean Griffin Memorial Airport, Wiggins, MS, to support instrument flight rule operations at this airport.

The FAA published a notice of proposed rulemaking in the Federal Register (85 FR 14427; March 12, 2020) for Docket No. FAA-2020-0155 to propose established Class E airspace extending upward from 700 feet above the surface at Dean Griffin Memorial Airport, Wiggins, MS. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11F, dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in FAA Order JO 7400.11.

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

This amendment to 14 CFR part 71 by establishing the Class E airspace extending upward from 700 feet above the surface within a 6.6-mile radius of Dean Griffin Memorial Airport, Wiggins, MS, excluding that airspace within Desoto 1 and Desoto 2 MOAs, when active. This action will enhance safety and the management of IFR operations at the airport.

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

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

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

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

Titles I and IV of the Employee Retirement Income Security Act of 1974 (ERISA) and the Internal Revenue Code (Code), generally require pension and other employee benefit plans to file annual returns/reports concerning, among other things, the financial condition and operations of the plans. 1 Filing a Form 5500 Annual Return/Report of Employee Benefit Plan (Form 5500) or, if eligible, a Form 5500-SF Short Form Annual Return/Report of Small Employee Benefit Plan (Form 5500-SF), together with any required schedules and attachments (together “the Form 5500 Annual Return/Report”), 2 in accordance with related instructions, generally satisfies these annual reporting requirements. ERISA section 103 broadly sets out annual financial reporting requirements for employee benefit plans under Title I of ERISA. The Form 5500 Annual Return/Report, and related instructions and regulations, are also promulgated under the DOL's general regulatory authority in ERISA sections 109 and 505.

The Form 5500 Annual Return/Report serves as the principal source of information and data available to the Department of Labor (DOL or the Department), the Internal Revenue Service (IRS), and the Pension Benefit Guaranty Corporation (PBGC) (collectively the “Agencies”) concerning the operations, funding, and investments of approximately 844,000 pension and welfare benefit plans that file. 3 ERISA plans cover roughly 158 million workers, retirees, and dependents of private sector pension and welfare plans  4 with estimated assets of $12.9 trillion. 5 Accordingly, the Form 5500 Annual Return/Report is essential to each Agency's enforcement, research, and policy formulation programs, as well as for the regulated community, which makes increasing use of the information as more capabilities develop to interact with the data electronically. The data is also an important source of information for use by other Federal agencies, Congress, and the private sector in assessing employee benefits, tax, and economic trends and policies. The Form 5500 Annual Return/Report also serves as a primary means by which the operations of plans can be monitored by participating employers in multiple-employer plans and other group arrangements, by plan participants and beneficiaries, and by the general public.

On September 15, 2021, the Agencies published a notice of proposed forms revisions (NPFR) to amend the Form 5500 Annual Return/Report primarily to implement annual reporting changes related to legislative provisions in the Setting Every Community Up for Retirement Enhancement Act of 2019 (SECURE Act) focused on multiple-employer pension plans (MEPs) and defined contribution reporting groups (DCGs). The NPFR also set forth additional proposed changes intended to improve reporting on multiemployer and single-employer defined benefit pension plans, updated reporting on Form 5500 Annual Return/Report to make the financial information collected on the Form 5500 Annual Return/Report more useful and usable, enhanced the reporting of certain tax qualification and other compliance information by retirement plans, and transferred to the DOL Form M-1 (Report for Multiple Employer Welfare Arrangements (MEWAs) and Certain Entities Claiming Exception (ECEs)) (Form M-1) participating employer information for multiple-employer welfare arrangements that are required to file the Form M-1. 6 86 FR 51488 (Sept. 15, 2021). The DOL simultaneously published a proposed rulemaking (NPRM) required to implement the proposed forms revisions. 86 FR 51284 (Sept. 15, 2021). The NPFR and the NPRM are collectively referred to as the September 2021 proposal.

The Agencies received 114 comments on the September 2021 proposal. The comments, which were all posted on the Department's website, generally focused on the proposed changes for the 2022 plan year forms and on future rulemakings. In December 2021, the Department published a final forms revisions rulemaking (2021 Final Forms Revisions) that set forth a narrow set of changes to the instructions for the Form 5500 and Form 5500-SF, effective for plan years beginning on or after January 1, 2021. 86 FR 73976 (Dec. 29, 2021). Those instruction changes generally implemented annual reporting changes for MEPs, including pooled employer plans (PEPs). 7 The Department noted in that publication that other changes to the Form 5500 Annual Return/Report would be the subject of one or more separate and later final notices to address other elements of the September 2021 proposal.

This document sets forth a limited number of annual reporting changes that would apply beginning with the 2022 plan year Form 5500 Annual Return/Report. These changes focus mainly on finalizing the improvements in annual reporting for defined benefit pension plans that were included in the September 2021 proposal, but also include some further annual reporting changes for MEPs. 8 Specifically, the annual reporting changes for 2022 being adopted in this document are revisions to Schedules MB, SB, and R and their respective instructions to improve reporting by defined benefit plans subject to Title IV of ERISA and additions to the plan characteristics codes reportable on line 8 of Form 5500 and line 9 of Form 5500-SF that require defined contribution MEPs (including PEPs) to be identified as such. No changes to the DOL's implementing regulations are required for these forms and instructions changes.

In this document, the Agencies are not adopting final annual reporting changes based on other proposals included in the September 2021 proposal because of the need to coordinate the careful consideration of public comments and other regulatory processes for adopting final changes to the Form 5500 Annual Return/Report with a separate contractual development schedule for integrating forms and instructions changes into the wholly-electronic EFAST2 filing system that receives and displays Form 5500 Annual Return/Report filings.

ERISA section 103 broadly sets out annual reporting requirements for employee benefit plans. The Form 5500 Annual Return/Report and the DOL's implementing regulations are promulgated through notice and comment rulemaking under general ERISA regulatory authority and specific ERISA provisions authorizing limited exemptions to these requirements and simplified reporting and disclosure for welfare plans under ERISA section 104(a)(3), simplified annual reports under ERISA section 104(a)(2)(A) for pension plans that cover fewer than 100 participants, and alternative methods of compliance for all pension plans under ERISA section 110. The Form 5500 Annual Return/Report filings are also information collections for the Agencies, subject to a separate clearance process under the Paperwork Reduction Act (PRA). EFAST2, on the other hand, is operated by a private sector government contractor on behalf of the Agencies. Each year the EFAST2 system is rolled over for the coming year's annual return/report filings; for example, the system must be updated to reflect changes from the 2021 plan year return/report filings to the 2022 plan year return/report filings. That rollover process is governed by a contractual development schedule that sets deadlines designed to ensure that forms and instructions changes are smoothly integrated into the EFAST2 system and the products developed by private software developers to provide filing services to employee benefit plans. Integration of the regulatory and EFAST2 processes is less complicated in years that do not involve material changes to the forms or instructions. These processes, however, are considerably more challenging when the Agencies propose substantial changes to the forms and instructions.

As noted above, the Agencies received 114 public comments on the September 2021 proposal. The comments were from a wide range of stakeholders. Some commenters were generally supportive of the proposed changes while others objected to some aspects of the proposal. Objections include those based on an alleged lack of legal authority or conflicts with legislative intent, challenges to the value of some of the proposed information collections, and concerns about administrative costs and burdens of some of the proposed annual reporting requirements that would purportedly create disincentives for employers to establish or continue to offer employee benefit plans to their employees. Some public commenters also suggested alternative approaches for some of the proposed annual reporting changes, and a range of commenters argued for delayed applicability dates for some proposed changes if they were adopted as final revisions to the forms and instructions.

The Agencies are still evaluating public comments on elements of the September 2021 proposal not included in these final forms revisions, including DCG reporting and related audit issues, 9 Schedule MEP and related reporting requirements regarding MEPs, financial statement improvements to the Schedule H and Schedules of Assets, changes in participant counting methodology for Independent Qualified Public Accountant (IQPA) purposes, changes regarding reporting on participating employers for MEWAs that file the Form M-1, and additional questions on pension plan compliance with certain Code requirements. These were areas in which a number of commenters suggested a delay in implementation, substantial revisions, or re-proposals. The Agencies agree that sufficient lead time for programming and systems changes, as well as time to develop contracts and other communications among plans and service providers is needed to properly implement these significant changes to annual reporting requirements. The Agencies also believe that, in light of the public comments on these aspects of the September 2021 proposal, employee benefit plan stakeholders are best served by the Agencies taking additional time to consider the range of public comments on these proposals and develop final rules that are cost-effective and improve the annual report data in a way that is protective of the retirement security interests of participants and beneficiaries. Accordingly, rather than rush consideration of issues and decision-making on these important annual reporting issues, the Agencies have decided that any changes to the Form 5500 Annual Return/Report in connection with the above listed elements of the September 2021 proposal will be addressed either in a further final forms revisions notice based on the September 2021 proposal, or re-proposed with modifications in a separate proposal that would focus on a broader range of improvements to the annual reporting requirements. As the Department noted in the September 2021 proposal, the Department added an additional regulatory project to its semi-annual agenda as part of a separate project with the IRS and PBGC to: (i) Modernize the financial and other annual reporting requirements on the Form 5500 Annual Return/Report; (ii) continue an ongoing effort to make investment and other information on the Form 5500 Annual Return/Report more data mineable; and (iii) consider potential changes to group health plan annual reporting requirements, among other improvements that would enhance the Agencies' ability to collect employee benefit plan data in a way that best meets the needs of compliance projects, programs, and activities. See www.reginfo.gov for more information. In the Agencies' view, this approach is the best way to allow for appropriate consideration of relevant public comments and facilitate a smooth and efficient process for integrating any new schedules or other annual reporting changes into the EFAST2 annual rollover process for Form 5500 Annual Return/Report filings.

Discussed below are final forms revisions on specific elements of the September 2021 proposal with respect to which the Agencies completed review of the public comments and reached conclusions on final forms and instructions changes in time to coordinate those changes into the EFAST2 development cycle for the 2022 plan year Form 5500 Annual Return/Report. 10

As described more fully below, the Agencies are adding new questions and revising existing questions to the Form 5500 Annual Return/Report Schedule MB (Multiemployer Defined Benefit Plan and Certain Money Purchase Plan Actuarial Information), Schedule SB (Single-Employer Defined Benefit Plan Actuarial Information), and Schedule R (Retirement Plan Information), and modifying the contribution and benefit attachment requirements to enable the Agencies to more easily access defined benefit pension plans' information and project more precisely insurance programs' liabilities. For both single-employer and multiemployer defined benefit pension plans, the Agencies are providing plans with the option to provide certain required attachments in a spreadsheet file (CSV format).

In summary, and as described in more detail below, the changes to Schedule MB and its instructions include the following: (1) Modify Schedule MB, line 3 instructions to require that additional information be included in the currently required attachment that shows the date and amount of each withdrawal liability amount paid to the plan ( i.e., a breakdown between lump sum amounts and amounts that are part of a schedule of periodic payments); (2) modify Schedule MB by clarifying the line 4f instructions and Schedule MB language concerning when or if plans in critical status or critical and declining status are projected to either emerge or become insolvent; (3) modify Schedule MB by adding a new requirement in a new line 6f to report information about the interest assumption used to determine the present value of vested benefits for withdrawal liability determinations; (4) modify Schedule MB for the questions related to the line 6 “expense load” to better align with the various ways multiemployer plans incorporate expense loads into their calculations; (5) modify Schedule MB, line 8 by requiring additional information about benefits and contributions for plans with 1,000 or more total participants at the beginning of the plan year; and (6) modify Schedule MB by changing the benefit information required to be included in the “age/service” scatter attachment (required for PBGC-insured multiemployer plans with active participants).

Currently, line 3 of Schedule MB requires that if any of the employer contributions reported in line 3 include amounts owed for withdrawal liability, an attachment must be provided listing the total withdrawal liability amounts and the dates such amounts were contributed. In the NPFR, the Agencies proposed to modify the instructions to line 3 to require that the total withdrawal liability amounts reported on the attachment be broken down between periodic withdrawal liability amounts and lump sum withdrawal liability amounts. The Agencies received several comments on proposed changes to the withdrawal liability attachment. Two commenters expressed opposite views about whether the additional information should be reported. One expressed support because the additional detail will result in more transparency. The other expressed concern because, in the commenter's opinion, that additional level of details could be misinterpreted by bankers and creditors. Because the only additional detail being added to the attachment relates to type of payment ( i.e., whether a payment is part of a series of periodic payments or a lump sum), the Agencies do not share that concern and are therefore requiring the breakdown, as proposed. Two commenters asked the Agencies to clarify when a withdrawal liability payment should be considered a periodic payment and when it should be considered a lump sum payment in situations where it is not clear which payment type applies ( e.g., where an employer making annual periodic payments settles the remaining obligation with a lump sum payment or makes a lump sum payment to cover delinquent periodic payments). The Agencies agree that clarification for such situations would be helpful and are revising the instructions to line 3 accordingly. One commenter noted that information about withdrawal liability payments is not maintained by a plan's actuary and requested that, rather than expanding the information that is reported on the Schedule MB attachment, all of the detailed information about withdrawal liability payments ( i.e., date, amount and type of payment) be reported as an attachment to a part of the Form 5500 Annual Return/Report that someone other than the actuary ( e.g., the plan sponsor or auditor) is responsible for completing ( e.g., Schedule R). The Agencies acknowledge that the plan's actuary does not have direct access to information about withdrawal liability payments but the same is true of the other information that is reported on Schedule MB ( e.g., date and amount of contributions) and, to date, this does not appear to have posed a problem. The Agencies continue to believe that the withdrawal liability information should be provided on an attachment to Schedule MB because Schedule MB is where information about contributions to the plan, including withdrawal liability payments, is reported. Accordingly, no changes are being made in response to this comment.

Currently, line 4f of Schedule MB requires completion by a plan that is in critical or critical and declining status. The year the plan is projected to emerge from critical status or become insolvent is reported on Schedule MB, and an illustration of year-by-year cash flow projections is provided in a required attachment to line 4f. The Agencies' review of filers' previous responses to line 4f suggested that the instructions on how to fill out this line correctly might have been unclear to filers. In the NPFR, the Agencies proposed to modify the instructions to line 4f and to clarify the time period for the year-by-year cash flow projection and the basis for the projections. Two commenters wrote that the instructions needed further clarification, especially with respect to how the instructions describe the first and last year to be included in the projection. One of those commenters questioned whether the required projection period would necessitate doing additional projections (as opposed to reporting projections that had to be done to determine the year of emergence/insolvency). In response, the Agencies are clarifying in the final forms revisions both the time period and basis for projection in line 4f. The Agencies believe the revised instructions will make clear that the projections to be reported in the attachments are projections that have already been done.

Currently, line 6 of Schedule MB is where filers provide information about the actuarial assumptions used to determine plan liabilities. The Agencies proposed in the NPFR to add a new item to line 6 (line 6f) regarding the interest rate used to determine the present value of vested benefits for withdrawal liability determinations. With respect to plans that do not use a single interest rate for this purpose, the proposed instructions required the reporting of the single equivalent interest rate that produces the same present value of vested benefits. Two commenters expressed concerns about the extra work it would take to determine the single equivalent interest rate noted above. The same commenters also requested clarification as to which withdrawal liability calculations should be considered when determining the equivalent single interest rate that produced the same result ( i.e., is it based on when the withdrawal liability amount is assessed or when the employer withdrew). In response, the Agencies are revising this question and instructions in these final forms revisions. As revised, the instructions provide that the filer will check a box in a new line, 6f(1), to report whether the interest assumption for this purpose is a single interest rate, ERISA section 4044 interest rates, or something else ( i.e., “Other”). If the “single rate” box is checked, the single interest rate is reported in a new line, 6f(2). If the “Other” box is checked, the filer must provide an attachment describing the interest rate assumption. Lastly, if this question doesn't apply ( i.e., if no employers withdrew and were assessed withdrawal liability during the plan year), the filer will check an “N/A” box. One of the commenters asked whether the definition of “withdrawal” is limited to complete withdrawals ( i.e., whether amounts assessed with respect to partial withdrawals are included when determining the single rate that produced the same result). That commenter noted that in Schedule R the definition of withdrawal is limited to complete withdrawals, but that it is not clear that that this definition carries over to Schedule MB. In response, PBGC has clarified the instructions accordingly.

In addition, the Agencies proposed to modify the questions related to the line 6 “expense load” to better align with the various ways multiemployer plans incorporate expense loads into their calculations. Filers would be required to indicate if an expense load is included in normal cost and, if so, whether it is determined as a percentage of normal cost, a dollar amount that varies from year to year, or something else. In addition, the Agencies proposed moving the expense load item from line 6e to a new line 6i and the salary scale item from 6f to 6e and revising the instructions accordingly so that the expense load assumptions that may differ between pre-retirement and post-retirement are grouped together. No revisions are being made to these proposed changes.

Currently, line 8 of Schedule MB requires filers to report miscellaneous information about demographics, benefits, and contributions. The Agencies proposed in the NPFR to modify line 8 by requiring additional information about demographics, benefits, and contributions, as described below. After considering the public comments, the Agencies have decided to adopt the changes to line 8 described below. As is currently required under line 8, the additional requirements would apply only to PBGC-insured multiemployer plans with 500 or more total participants as of the beginning of the plan year.

• Benefit Projections —Currently, plans are required to attach a projection of benefits expected to be paid in each of the next ten years (see line 8b(1)). 11 The Agencies proposed in the NPFR to modify the format of the attachment to show the benefit projection broken down into three categories based on the participant's or beneficiary's status on the valuation date ( i.e., active, terminated vested, or in pay status). In addition, the projection period was extended from 10 to 50 years. Three commenters stated that the line 8b(1) proposal would be costly and burdensome. These commenters also stated that the projection would unlikely produce meaningful, reliable, and useful information because future benefit accruals are not reflected. The Agencies are not persuaded that this change to line 8 would be unduly costly or burdensome. Rather, as noted in the NPFR, based on the Agencies' experience with the valuation software generally in use by affected DB pension plans, the incremental cost of expanding a projection from 10 to 50 years is nominal. In addition, the Agencies paired these line 8 changes with a provision that allows filers to attach a spreadsheet file (CSV format) instead of a PDF file. The ability to use generally available spreadsheet software to produce the required data will allow the Agencies to more easily access defined benefit plans' information and to project more precisely insurance programs' liabilities. However, after considering the comments received, the Agencies decided to reduce the number of plans required to provide the benefit projection attachment (from plans with 500 or more participants to plans with 1,000 or more participants). 12 Also, although a projection may provide more meaningful results if additional accruals were reflected and/or if the projection were done stochastically, the Agencies did not add such a requirement or requirements as part of these final forms revisions because of the potentially more significant compliance costs involved. The Agencies believe that by increasing the projection period from 10 to 50 years, this will provide valuable information and enable the Agencies to better estimate anticipated future benefit payments from pension plans.

• Contribution Projections —The Agencies also proposed in the NPFR to add a new requirement that plans provide, as an attachment, a 10-year projection of employer contributions and withdrawal liability payments. A new line, line 8b(3), would be added to Schedule MB where the filer would report whether the projection is required. As is the case with the benefit projection attachments, the instructions would provide the required format for the attachment. In addition, although the Agencies did not receive any substantive comments concerning this new requirement, to be consistent with the modification to line 8b(1) noted above, the final forms revisions provides that this 10-year projection of employer contributions and withdrawal liability payments is required only for plans with 1,000 or more participants as of the beginning of the plan year.

• Average age/benefit —The Agencies additionally proposed in the NPFR to require plans to report the average age and average monthly benefit separately for (1) terminated vested participants and (2) retired participants and beneficiaries receiving payments. Under the proposal, this information would be provided directly on Schedule MB, in new line 8b(4). Two commenters provided comments on the new line 8b(4) requirement. Although one supported the proposal, the other commented that the additional data was both unnecessary and costly. In an effort to minimize the burden on plans, the Agencies have decided not to move forward with this part of the proposal. Accordingly, this final forms revision does not include a new line 8b(4).

• Age/service scatter —The Agencies proposed in the NPFR a change to the existing “age/service” attachment for line 8b(2), which is required for PBGC-insured multiemployer plans with active participants, regardless of the number of participants. Currently, the scatter shows, for each “attained age” and “years of credited service” grouping of active participants, the number of active participants, and, if the total number of active participants at the beginning of the plan year is 1,000 or more, (1) for plans that use compensation to determine benefits, the average compensation, and (2) for cash balance plans, the average cash balance account (see line 8b(2)). These latter two requirements do not apply for any age/service grouping of fewer than 20 participants. Because there are few, if any, multiemployer cash balance plans, the Agencies proposed modifying the additional reporting requirement for multiemployer plans with 1,000 or more active participants by replacing the required information related to cash balance plans with a requirement to report average accrued monthly benefits as of the valuation date for each grouping. Two commenters provided comments on the proposed change to the age/service scatter. One suggested that the Schedule MB instructions be modified to specify that plans that do not use compensation to determine benefits should enter “N/A” in each age/service grouping. The Agencies do not believe such modification is needed because the existing instructions for line 8b(2) state that only plans “using compensation to determine benefits” need to provide average compensation data. There is no need to enter “N/A” because it is implied. The other commenter asked whether the cash balance information will also be removed from the Schedule SB (for single-employer plans). The Agencies believe that it was clear from the NPFR that no changes were proposed with respect to the age/service scatter on Schedule SB (for single-employer plans).

In the NPFR, the Agencies proposed adding two new reporting requirements for PBGC-insured single-employer plans with 500 or more total participants to better align requirements for single-employer defined benefit plans with the more detailed requirements for PBGC-insured multiemployer plans. The new reporting requirements proposed in the NPFR were:

• A 50-year benefit payment projection broken down into three categories based on the participant's or beneficiary's status on the valuation date ( i.e., active, terminated vested, in pay status), and

• The average age and average monthly benefit separately for (1) terminated vested participants and (2) retired participants and beneficiaries receiving payments (similar to the information required to be reported in line 8b(4) of Schedule MB).

For the most part, the Agencies proposed that these two new reporting requirements would be similar to the Schedule MB requirements for multiemployer plans (lines 8b(1) and 8b(4), respectively). However, because the only participant count information for single-employer plans on Schedule SB is as of the valuation date, to determine whether a plan has 500 or more participants (and is thus required to provide information for these two new reporting requirements) the Agencies proposed that participants be counted as of the valuation date instead of as of the beginning of the plan year (the “count” date for multiemployer plans). To facilitate these changes, the Agencies proposed rearranging Schedule SB line 26. Currently, line 26 relates only to the “age/service” scatter of active participant data required to be attached to Schedule SB for single-employer plans covered by Title IV of ERISA with active participants. The Agencies proposed changing line 26 into a three-part question (26a, 26b, and 26c). Current line 26 would become new line 26a. The benefit projection question would become new line 26b, and the average age/benefit question would become new line 26c.

The Agencies received several comments about the benefit projection attachment. One commenter supported the change. Two commenters expressed concern that the benefit projection attachment would impose substantial additional costs and burdens on plans without any apparent benefit. As discussed above in the Agencies' responses to comments received on Schedule MB and in the NPFR, it is the Agencies' understanding that these projections are done as part of the valuation, so the only additional work would be to capture those projected amounts in an accessible or downloadable file. Accordingly, we are not convinced that the additional burden is significant. However, after considering the comments received, the Agencies have decided to reduce the number of plans required to provide the benefit projection attachment from plans with 500 or more participants to plans with 1,000 or more participants. In addition, and consistent with the Schedule MB change from the proposal with respect to multiemployer plans, the Agencies are not moving forward with the proposal to require reporting average age and benefit information for retirees and terminated vested participants ( i.e., there will not be a new line 26c(2)).

One commenter expressed concern about the application of line 26b to MEPs because they believe attaching a benefit projection would impose substantial additional costs and burden without any apparent benefit. The same commenter requested that, at a minimum, cooperative and small employer charity (CSEC) pension plans (almost all of which are MEPs) be exempt from this requirement. The Agencies see no compelling reason to treat PBGC-insured MEPs differently from other single-employer plans with respect to this requirement. However, it should be noted that it was never the intent to have CSEC plans provide this information. The current instructions state that CSEC plans are not required to complete Part VI—Miscellaneous Items (the section which includes line 26). As noted above, the proposal called for breaking down line 26 into new lines 26a, 26b, and 26c. Since all three of those lines are part of line 26 (and in Part VI), the proposal exempted CSEC plans from the proposed new reporting requirements.

The Agencies received one comment on line 26c(2) to clarify what should be shown as the average benefit for terminated vested participants in cash balance plans. As noted above, the Agencies have decided not to move forward with that part of the proposal ( i.e., line 26c(2) will not be added to the Schedule SB). Accordingly, the question asked by the commenter is moot.

Finally, the Agencies proposed modifying Part IX of Schedule SB, and its instructions, so that it relates to elective amortization funding relief provided under the American Rescue Plan (ARP) Act of 2021 instead of elective funding relief provided under the Pension Relief Act of 2010 (PRA 2010). The NPFR explained that the PRA 2010 information is no longer needed because ARP reduces to zero all shortfall amortization bases, including amortization bases established pursuant to the PRA 2010 elective funding relief. As modified, plan sponsors of single-employer defined benefit plans that elect to have the ARP extended amortization rule apply before the 2022 plan year would be required to report the first plan year to which the extended amortization rule applies. The proposal would require such a plan to check a box to indicate the first plan year for which the plan elected to have ARP amortization funding relief. One commenter opposed the change as unnecessary because Schedule SB attachments would indicate when an election was made. The Agencies agree that they could obtain this information from attachments, but information reported on attachments cannot be accessed electronically. In addition, because this is only a check box for which the answer will not change from year-to-year, there is virtually no burden associated with it. Accordingly, the Agencies are adopting this requirement as part of the final forms revisions.

Currently, Schedule R's Part V, line 13 requirement requires multiemployer defined benefit pension plans subject to minimum funding standards to report identifying information about any participating employer whose contributions to the plan account for more than five percent of the total contributions for the year. The NPFR proposed to change this requirement to require plans to report identifying information about any participating employer that either (1) contributed more than five percent of the plan's total contributions or (2) was one of the top ten highest contributors. The Agencies received no comments on this proposal and have incorporated this modification in the final forms revisions.

EFAST2 filers currently file Form 5500 Annual Return/Report attachments as PDF and plain text (TXT) files. A PDF file is required only if the attachment must be signed. TXT attachments are rarely provided. Many attachments include a lot of numbers ( e.g., benefit projections, age/service scatters) that are reported in tables. These numbers have to be extracted out of PDF tables and entered into databases or spreadsheets before the Agencies can use the information for various projects, studies, etc. This is costly and inefficient. In the NPFR, the Agencies proposed to modify the instructions to allow and suggest (but not require) that certain attachments be provided in a spreadsheet file (such as CSV format), rather than PDF or TXT formats. The Agencies did not receive any comments on this proposed modification of the instructions and have incorporated this change in the final forms revisions.

Thus, the instructions for the Schedules MB and SB are being modified to permit (but not require) certain attachments to Schedule MB and SB to be provided in a spreadsheet file (CSV format) rather than PDF or TXT formats. The following chart lists the Schedule MB and Schedule SB attachments that are affected by the formatting change:

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

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

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

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

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

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

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

• If the proposed AVA is to be established within, or overlapping, an existing AVA, an explanation that both identifies the attributes of the proposed AVA that are consistent with the existing AVA and explains how the proposed AVA is sufficiently distinct from the existing AVA and therefore appropriate for separate recognition;

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

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

TTB received a petition from Patrick Shabram, on behalf of the West Sonoma Coast Vintners, proposing the establishment of the “West Sonoma Coast” AVA. The proposed West Sonoma Coast AVA is located in Sonoma County, California, and is entirely within the established Sonoma Coast AVA (27 CFR 9.116) and North Coast AVA (27 CFR 9.30) and entirely contains the smaller established Fort Ross-Seaview AVA (27 CFR 9.221). The proposed West Sonoma Coast AVA contains 141,846 acres and has approximately 47 commercial vineyards covering approximately 1,028 acres distributed throughout the proposed AVA.

According to the petition, the distinguishing features of the proposed West Sonoma Coast AVA include its topography, geology, and climate. The topography of the proposed West Sonoma Coast AVA is characterized by the steep, rugged mountains and ridgelines that form the Coastal Ranges. The summits of these coastal mountains can exceed 1,000 feet. The high elevations of the Coastal Ranges provide areas for vineyards that are above the fog layer. The ridgelines also create areas at lower elevations that are sheltered from the heaviest marine fogs, where viticulture may take place successfully within the fog line. By contrast, the region to the east of the proposed AVA, within the Russian River Valley AVA (27 CFR 9.66), is generally lower and the slopes are less steep, particularly in the Santa Rosa Plain. To the south, within the Petaluma Gap AVA (27 CFR 9.261), the topography is characterized by gentle, rolling hills with lower elevations.

Much of the proposed West Sonoma Coast AVA is underlain with sedimentary rocks of the Franciscan Complex. The Franciscan Complex is not easily eroded, which contributes to the high elevations and steep slopes within the proposed AVA. Soils derived from the Franciscan Complex are typically thin and have a high sand content, which promotes good drainage in vineyards. To the east and south of the proposed AVA, the Franciscan Complex is present, but the Wilson Grove Formation is the dominant geological feature. To the east of the proposed AVA, alluvial soils are also more common.

Lastly, the proposed West Sonoma Coast AVA has a climate that is more influenced by marine winds and fog than the more inland regions of Sonoma County. Much of the proposed AVA is located within the Marine zone climate classification, and gradually transitions to the Coastal Cool zone. 1 Within the proposed AVA, daytime temperatures are generally cooler and nighttime temperatures are generally warmer than in the more inland regions. Growing degree day (GDD)  2 accumulations within the proposed AVA are typically lower than within the region to the east. Wind speeds within the proposed AVA are lower than within the region to the south, where lower elevations allow the coastal winds to enter relatively unhindered. According to the petition, higher wind speeds can slow photosynthesis, thereby slowing fruit development and maturation. The petition also states that the climate of the proposed AVA is suitable for growing cooler climate varietals of grapes such as Pinot Noir and Chardonnay.

TTB notes that the petition did not provide information on the features of the region to the north of the proposed AVA, within Mendocino County. However, the petition states that the proposed name “West Sonoma Coast” is not used to describe any region outside of Sonoma County. Therefore, even if the region to the north has features similar to those of the proposed AVA, the proposed AVA could not extend into Mendocino County because § 9.12(a)(1) of the TTB regulations requires the proposed name to apply to the entire region included in the proposed AVA.

TTB published Notice No. 177 in the Federal Register on December 6, 2018 (83 FR 62750), proposing to establish the West Sonoma Coast AVA. In that document, TTB summarized the evidence from the petition regarding the name, boundary, and distinguishing features for the proposed AVA. The proposal also compared the distinguishing features of the proposed AVA to the surrounding areas, including the established Sonoma Coast, North Coast and Fort Ross-Seaview AVAs. For a detailed description of the evidence relating to the name, boundary, and distinguishing features of the proposed AVA, and for a detailed comparison of the distinguishing features of the proposed AVA to the surrounding areas, see Notice No. 177.

In Notice No. 177, TTB solicited comments on the accuracy of the name, boundary, and other required information submitted in support of the petition. In addition, given the proposed West Sonoma Coast AVA's location within the Sonoma Coast and North Coast AVAs, TTB solicited comments on whether the evidence submitted in the petition regarding the distinguishing features of the proposed AVA sufficiently differentiates it from the two larger established AVAs. TTB requested comments on whether the geographic features of the proposed AVA are so distinguishable from the Sonoma Coast and North Coast AVAs that the proposed West Sonoma Coast AVA should no longer be part of the established AVAs. Finally, TTB requested comments on whether the evidence included in the petition regarding the distinguishing features of the proposed AVA sufficiently differentiates it from the smaller established Fort Ross-Seaview AVA, and if the geographic features of the proposed AVA are so distinguishable that the Fort Ross-Seaview AVA should not be a part of the proposed West Sonoma Coast AVA.

The comment period for Notice No. 177 was originally scheduled to close on February 4, 2019. However, TTB received two comments requesting an extension of the comment period and subsequently published Notice No. 177A on February 12, 2019 (84 FR 3353), which reopened the comment period until April 15, 2019.

In response to Notice No. 177, TTB received a total of 72 comments. However, one comment was a duplicate of a previously submitted comment, and one comment was replaced by a later comment from the same submitter before the original comment was posted. Therefore, a total of 70 comments were posted for public viewing within Regulations.gov docket number TTB-2018-0008 (see https://www.regulations.gov ). Commenters included local vineyard and winery owners and employees, wine writers and educators, sommeliers, and consumers.

Of the 70 comments that TTB posted to the docket, 67 express either support for or opposition to the proposed West Sonoma Coast AVA, while two comments request an extension of the comment period (comments 27 and 28), and one comment withdraws but does not replace a previously submitted and posted comment (comment 1, withdrawn by comment 42). Of the 67 comments that express a specific opinion on the proposal, 49 support the proposed AVA, 1 comment supports the proposed AVA and requests an expansion of the boundary to include the commenter's vineyard (comment 55), 1 comment supports the establishment of the proposed AVA but opposes the choice of name (comment 62), and 14 oppose the establishment of the proposed West Sonoma Coast AVA. Additionally, the petitioner submitted two comments in defense of his analysis of the proposed AVA (comments 54 and 67), including one (comment 54) which withdrew and replaced his previously submitted and posted comment (comment 36).

TTB received two comments that oppose the proposed “West Sonoma Coast” name. One of these comments (comment 62) opposes the proposed name, although the commenter does support the establishment of an AVA limited to the extreme coastal regions of the established Sonoma Coast AVA. The commenter, who is a self-identified grape grower and winemaker in the established Sonoma Coast AVA, believes that the name “West Sonoma Coast” begs the question where is the “East Sonoma Coast?” The commenter is also concerned that the proposed name “will risk creating an inland or east version of the Sonoma Coast, which could be read by some as being less than” the proposed West Sonoma Coast AVA. The commenter supports the establishment of the AVA if it were proposed with another name; however, he did not suggest an alternative name for the proposed AVA.

The second comment opposing the proposed “West Sonoma Coast” name was submitted jointly by Lester Schwartz, owner of Fort Ross Vineyards, and Daniel Schoenfeld, owner of Wild Hog Vineyard (comment 51). Both vineyards are within the proposed AVA and also within the Fort Ross-Seaview AVA. The commenters assert that the name evidence provided by the petitioner does not meet the requirements of § 9.12(a)(1)(i) and (ii) of the TTB regulations. The commenters provide two articles which they believe demonstrate that the proposed AVA is not locally or nationally known as “West Sonoma Coast.” The first article quotes the director of sales and marketing of Peay Vineyards, saying that the West Sonoma Coast Vintners' first petition to establish an AVA was rejected by TTB “because there was no historical reference to a West Sonoma Coast,” and that the “proposed moniker seems nonsensical at first blush” because there is no “East Sonoma Coast.”  3 The second article is titled “California's Edgiest, Riskiest Wine Region Is About to Get a New Name: Five wines to know from West Sonoma Coast, as it'll soon be known.”  4 The commenters assert that the phrases “get a new name” and “as it'll soon be known” in the title of the article suggests that the region of the proposed AVA is not currently known by the name “West Sonoma Coast.”

The commenters provided examples of different names currently used to describe the region of the proposed AVA, including materials from the West Sonoma Coast Vintners' West of the West Wine Festival and Vintners Farm Camp. These materials use the terms “True Coast,” “True Sonoma Coast,” “Far Sonoma Coast,” “Sonoma Coast Mountains,” and “Sonoma Coast Highlands,” among others when referring to the region of the proposed AVA. Another article included in the comment refers to the region of the proposed AVA as “Gold Coast” and “California's cote d'or.”  5 The commenters further claim that the name “West Sonoma Coast” does not apply to the entire region, as portions of the proposed AVA are known by other names such as “Annapolis,” “Freestone,” “Occidental,” and “Fort Ross.” The commenters assert that the use of these other names to describe the region of the proposed AVA shows that the proposed name is not locally or nationally recognized, nor does it apply to the entire proposed AVA.

Comment 51 also questions the petition's use of the West Sonoma County Union High School District as evidence to support the proposed AVA name. The commenters claim that the petition incorrectly portrays the school district as the only school district serving the proposed AVA when in fact there are multiple school districts. The commenters included a map of the school districts serving the proposed AVA and surrounding regions and note that the northern portion of the proposed AVA is not within the school district, and 60 percent of the school district is located outside the proposed AVA. 6

Finally, the commenters claim that the name evidence provided by the petitioner is not independent of the petitioner, as required by TTB regulations. The commenters assert that the proposed name is a “recent fiction of the petitioner's own making.” As evidence, the commenters point to a statement from page 5 of the proposed West Sonoma Coast AVA petition that says that the name “offers the best descriptive delineator given the limitations of being able to use the most appropriate identifier” for the proposed AVA.

Only one comment expressly supports the use of the proposed name “West Sonoma Coast.” The petitioner, Patrick Shabram, submitted a comment (comment 67) which included additional name evidence and was submitted in response to comment 51. The petitioner submitted an article entitled “Way Out on the West Sonoma Coast,” which describes places to visit in the towns of Annapolis, Occidental, Freestone, and Sebastopol. 7 Another item submitted was a wine list from the Lazy Bear Restaurant  8 in San Francisco that uses the “West Sonoma Coast” moniker to describe several wines from the region of the proposed AVA. For example, the Alma Fria Doña Margarita Vineyard 2014 pinot noir is listed as “Freestone, West Sonoma Coast, California,” and the 2014 Alma Fria Holterman Vineyard pinot noir is designated “Annapolis, 2014, West Sonoma Coast, California.”

After careful review of the comments and the name evidence provided in the petition, TTB has determined that there is sufficient evidence to support the proposed West Sonoma Coast AVA name. The petition provided ample evidence that the term “West Sonoma” is used to describe the entire western portion of Sonoma County, where the proposed AVA is located. TTB notes that the use of a directional term such as “West” in an AVA name does not require that there be a separate region known by the opposite direction. TTB has approved several such AVAs, including the North Yuba (27 CFR 9.106), North Fork of Long Island (27 CFR 9.113), and West Elks (27 CFR 9.172) AVAs.

TTB believes that the West Sonoma County Union High School District name is an acceptable piece of evidence to demonstrate that the proposed AVA is in a region known as “West Sonoma” or “West Sonoma Coast.” The petition claimed that “much of the proposed AVA is within” the school district. The school district map included in comment 51 does not disprove this claim. TTB notes that the school district name was not the only piece of name evidence for the proposed AVA. The petition also included magazine and newspaper articles, an excerpt from a book, and a real estate listing that all referred to the region of the proposed AVA as “West Sonoma Coast” or “West Sonoma.”  9

TTB does not agree with the assertion in comment 51 that the Washington Post and Bloomberg Wine articles demonstrate that the proposed name does not currently apply to the region. While the Washington Post article notes the proposed “West Sonoma Coast” name “seems nonsensical” and that there is a lack of historical evidence for this name, TTB does not believe these statements demonstrate the region is not known as the “West Sonoma Coast.” Under TTB regulations, a petitioner does not need to submit historical name evidence in support of a proposed AVA name, but only needs to submit evidence that the proposed AVA name is “currently and directly associated” with the area “in which viticulture exists” (see § 9.12(a)(1)). TTB finds that the petitioner for this rulemaking meets this requirement, and has determined that both the proposed West Sonoma Coast AVA petition and comment 67, which was submitted by the petitioner, included multiple examples of the name “West Sonoma Coast” or “West Sonoma” being used currently to describe the region of the proposed AVA.

Also, TTB does not believe the Bloomberg Wine article's statement that the region of the proposed AVA will “soon be known” by a “new name” is evidence that the region is not known by the West Sonoma Coast name. TTB finds this statement is referring to the fact that a new AVA with the name “West Sonoma Coast” may soon be established. TTB finds the article refers to the region of the proposed AVA in the present tense as “West Sonoma Coast,” noting, “The dramatic, 51-mile-long sliver of land next to the ocean is known as the West Sonoma Coast * * *.”

TTB also disagrees with the claim in comment 51 that, because the region of the proposed AVA is known by many different names, it cannot be designated as “West Sonoma Coast.” TTB regulations do not preclude the region of a proposed AVA from being known by more than one name. In fact, the towns of Annapolis, Freestone, and Occidental are already within the established Sonoma Coast and North Coast AVAs, and the existence of these communities did not affect the ability of TTB to recognize the names “Sonoma Coast” and “North Coast” for those AVAs. Additionally, none of the comments provided evidence that any of the other names used to describe the region would be a more appropriate choice. Therefore, TTB has determined that the petition provided sufficient evidence to support the proposed name “West Sonoma Coast.”

Additionally, TTB believes that the proposed West Sonoma Coast AVA petition provided sufficient evidence to demonstrate that the towns of Annapolis, Freestone, and Occidental are considered part of a larger region known as West Sonoma Coast. For example, Exhibit J to the petition included an article entitled “West Sonoma Coast Wines are on the Rise”  10 which mentions Summa Vineyards in Occidental, while another article about the “west (sic) Sonoma Coast” mentions that Peay Vineyards “makes three estate pinots from their vineyard in Annapolis.”  11 Furthermore, in comment 67, the petitioner provided additional name evidence linking the proposed “West Sonoma Coast” name to the towns of Annapolis, Occidental, and Freestone.

Finally, TTB disagrees with the assertion in comment 51 that the petition did not include name evidence that is independent of the petitioner, as required by § 9.12(a)(1)(ii). The name evidence included in the petition shows that the name has been recognized and used by others to describe the region of the proposed AVA. For example, the real estate ad for “West Sonoma Coast Ranch Land” that was included in the petition provides evidence that the name “West Sonoma Coast” is currently used by people outside the wine industry. TTB acknowledges that many of the articles cited as name evidence in the petition are references to the wine industry. However, they include articles from newspapers and journals not exclusively dedicated to wine, such as the Wall Street Journal and Forbes, suggesting that the name has been accepted and used by people outside the wine industry.

Nine of the comments opposing the establishment of the proposed West Sonoma Coast AVA raise objection to the proposal based on a lack of distinguishing features. These opposing comments generally claim that the features of the proposed AVA are too diverse to be combined into a larger, generalized AVA, but do not provide evidence to support these claims.

One of the comments (comment 52) asserts that the distinguishing features data in the petition did not meet TTB's regulatory requirements because the petition did not compare the proposed AVA to all of the seven AVAs that overlap or are adjacent to the proposed AVA, including the Northern Sonoma (27 CFR 9.70), Petaluma Gap, Russian River Valley, Green Valley of Russian River Valley (27 CFR 9.57), Fort Ross-Seaview, Sonoma Coast, and North Coast AVAs. The comment states that the comparisons that were included in the petition are not sufficiently supported by facts, but the comment did not provide any evidence to refute the data in the petition.

Comment 51 also asserts that the petition failed to meet the requirements of § 9.12(a)(2) of the TTB regulations because it does not explain with specificity how the commonalities and similarities within the proposed AVA are different from those in the adjacent areas outside the proposed AVA. The comment states that the petition does not provide comparisons to the neighboring Northern Sonoma, Green Valley of the Russian River Valley, and Petaluma Gap AVAs, and that the petition's comparison to the North Coast AVA is insufficient. The comment also claims that the proposed West Sonoma AVA consists of four regions with “too diverse a range of geographic and climatic features to be considered a unitary AVA.” These four regions are identified as the Fort Ross-Seaview AVA and the Annapolis, Freestone, and Occidental regions. The comment asserts that an attempt to establish a Freestone-Occidental AVA in 2008, as well as TTB's rejection of a request to include the Annapolis region in the Fort Ross-Seaview AVA in 2011, illustrate that the two regions are too different to be included in a single AVA.

Five of the supporting comments express general agreement that the features of the proposed West Sonoma Coast AVA are distinctive from those of the surrounding regions. These five comments did not focus on a particular feature, nor did they provide any additional evidence.

After careful review of the comments and the petition, TTB has determined that the information in the petition sufficiently demonstrates that the features of the proposed West Sonoma Coast AVA generally distinguish it from the surrounding regions, including neighboring and overlapping established AVAs. The TTB regulations at § 9.12(a)(2) require an AVA petition to explain how a proposed AVA's distinguishing features are “different in the adjacent areas outside that boundary.” The AVAs adjacent to the eastern boundaries of the proposed West Sonoma Coast AVA are the Russian River Valley AVA and the Sonoma Coast AVA, which entirely overlaps both the proposed AVA as well as the Green Valley of Russian River AVA and most of the Russian River Valley AVA. The Petaluma Gap AVA is adjacent to the southern boundary of the proposed West Sonoma Coast AVA and is also partially located within the Sonoma Coast AVA. The Green Valley of Russian River Valley AVA is entirely within the Russian River Valley AVA, and the Northern Sonoma AVA completely encompasses both the Green Valley of Russian River Valley AVA and the Russian River Valley AVA.

TTB disagrees with the assertion in comments 51 and 52 that the petition does not include comparisons of the proposed West Sonoma Coast AVA's distinguishing features to those of the surrounding AVAs. In its discussion of topography, the petition compares the proposed AVA to the established Russian River Valley, Green Valley of Russian River Valley, and Petaluma Gap AVAs. The climate section of the petition includes GDD, average monthly maximum temperature, and monthly low temperature data from the town of Windsor, which is within the Sonoma Coast, Russian River Valley, and Northern Sonoma AVAs. The average monthly maximum and minimum temperature graphs also include data from the city of Santa Rosa, which is partially within the Sonoma Coast, Northern Sonoma, and Russian River Valley AVAs. Wind speed data is provided from Windsor, Santa Rosa, and the town of Valley Ford, which is within both the Petaluma Gap AVA and the Sonoma Coast AVA. Finally, the geology section of the petition contains a discussion of the geology of the Russian River Valley and Petaluma Gap AVAs. Therefore, TTB has determined that the proposed West Sonoma Coast AVA petition meets the regulatory requirements to provide comparison data from the “adjacent areas outside the boundary.” TTB notes that its regulations do not require that each of the features of the proposed AVA must be distinguishable from all of the surrounding regions. In other words, the feature that distinguishes a proposed AVA from the regions to the east and west does not have to be the same feature that distinguishes the proposed AVA from the north and south.

TTB also finds that the petition provided a sufficient comparison of the proposed West Sonoma Coast AVA to the larger North Coast AVA that encompasses it. As noted in T.D. ATF-145, which established the North Coast AVA, the primary distinguishing features of the North Coast AVA are a climate that is “influenced by intrusions of cooler, damper coastal marine air and fog, by temperatures that are cooler than the Central Valley, and by greater rainfall than surrounding areas.”  12 The proposed West Sonoma Coast AVA petition notes that, like the North Coast AVA, the proposed AVA is influenced by maritime air. Although the petition does not provide any additional specific comparisons to the North Coast AVA, the petition does describe how the proposed AVA differs from the Sonoma Coast, Russian River Valley, and Petaluma Gap AVAs, all of which are also located in the North Coast AVA. Therefore, TTB finds that the petition sufficiently demonstrated that the proposed AVA shares a marine-influenced climate with the North Coast AVA, but is also a distinct microclimate within the larger AVA. Also, due to its smaller size, the proposed AVA experiences a much smaller range of climatic variations within its proposed boundaries than the diverse, multicounty North Coast AVA.

TTB does not believe that the information included in comment 51 demonstrates that the characteristics of the proposed West Sonoma Coast AVA are too diverse to be considered “a unitary AVA.” The comment includes an elevation map (Exhibit A-2) and an elevation statistics table (Exhibit A-3), both of which do show a variety of elevations within the proposed AVA. However, neither the map nor the table provide sufficient evidence to refute the petition's claims that the proposed AVA's elevations are generally higher than elevations in the surrounding regions, particularly in the Petaluma Gap AVA and the Santa Rosa Plain region of the Russian River Valley AVA. For example, Exhibit A-3 notes elevations of acreage outside the proposed AVA that exist at less than 400 feet. However, this exhibit also shows that within the four regions comprising the proposed AVA, no region has an average vineyard elevation of below 500 feet. Additionally, the petition shows the proposed AVA contains the mountainous terrain of the Coastal Ranges, which contain summits which exceed 1000 feet, a contrast to the Santa Rosa Plain to the east of the proposed AVA, which contains slopes of less than 5 percent.

Comment 51 includes a letter from meteorologist Roland Clark that also claims, “While the petition seeks to simply distinguish the western half [of the established Sonoma Coast AVA] from the eastern half, it does not address the differences that have been proven to exist between Annapolis, Fort Ross-Seaview AVA, Occidental and Freestone,” which are all communities within the proposed West Sonoma Coast AVA. 13 TTB regulations allow for an AVA to contain regions with differences in distinguishing features. However, § 9.12(a)(3) of the TTB regulations requires that the regions within an AVA must still share “common or similar features.” TTB believes the various regions of the proposed AVA share climatic features, topography, and geology that are more similar to each other than to the regions outside the proposed AVA. TTB also notes that the entire proposed AVA is already located within the established Sonoma Coast and North Coast AVAs, further indicating that the various regions within the proposed AVA share at least some similar features.

TTB does not agree with the assertion in comment 51 that the exclusion of the Annapolis region from the Fort Ross-Seaview AVA indicates that the two regions are too dissimilar to now be included in a single AVA. Although the Annapolis region does not share enough of the characteristics of the Fort Ross-Seaview AVA, particularly the name evidence, to be included with that AVA, the two regions share enough similarities to be included in a larger, overlapping AVA, such as the proposed West Sonoma Coast AVA. As noted previously, both the Annapolis region and the Fort Ross-Seaview AVA are already located within the Sonoma Coast and North Coast AVAs, indicating that TTB found them to share at least some broad characteristics of the two larger AVAs.

Last, in contrast to the assertion in comment 51, TTB does not believe that submission of a petition to establish a Freestone-Occidental AVA in 2008 indicates that the Freestone-Occidental region is too distinct from the Fort Ross-Seaview AVA and the Annapolis region to be included with those regions in a larger AVA such as the proposed West Sonoma Coast AVA. The submission of a petition to establish an AVA within another AVA does not mean that the smaller region cannot have features that are distinct enough to warrant recognition as an AVA and still share some of the broader characteristics of the encompassing AVA. For example, the Fort Ross-Seaview AVA is currently within the larger, established North Coast and Sonoma Coast AVAs, along with the Freestone-Occidental and Annapolis regions. Even though the Fort Ross-Seaview AVA is distinguishable from the Freestone-Occidental and Annapolis regions, they all still share marine-influenced climates characteristic of the two larger coastal AVAs. Therefore, TTB believes that the submission of a petition to recognize the Freestone-Occidental region as an AVA does not, by itself, serve as evidence that the region is too distinct to be included in a larger AVA with the Annapolis region and Fort Ross-Seaview AVA.

Six comments, comments 41, 43, 47, 49, 50, and 51, oppose including the Fort Ross-Seaview AVA within the proposed West Sonoma Coast AVA. These commenters allege the climate of the Fort Ross-Seaview AVA is distinct from other regions to be included in the proposed West Sonoma Coast AVA. However, comment 51 was the only opposing comment that addressed the petition's climate evidence and provided data to support its claims. The comment states that the petition is incorrect in asserting that the proposed AVA is largely within the Marine climate zone, as developed by Robert Sisson and Paul Vossen. 14 The comment states that the vineyards in the Annapolis region of the proposed AVA are within the Coastal Cool zone, not the Marine zone, and that although some vineyards within the Occidental and Freestone regions are within the Marine zone, others are in the Costal Cool zone. The comment claims that the Sisson model of climate zones is “unsupportive of [the petitioner's] thesis for distinguishing the proposed AVA,” because the model claims that the Marine zone is too cold for grape growing.

Comment 51 also disagrees with the petition's description of fog intrusion within the proposed West Sonoma Coast AVA and the surrounding regions, particularly the petition's claim that ridgelines form pockets protected from the heaviest marine fog in the Freestone, Annapolis, and Occidental regions of the proposed AVA. The comment states that the Annapolis region has low-elevation gaps that allow for the penetration of fog, and that there are no high coastal ridges to form protected areas around Freestone. As evidence, the comment includes a statement from the winemaker of Peay Vineyards. 15 In the statement, the winemaker says that her Annapolis-area vineyard is below the inversion layer, and cool ocean fog persists throughout the day. Comment 51 also includes a Sonoma County fog map created from satellite imagery from August 24, 2018, that shows fog intruding into much of the county, including the region east of the proposed West Sonoma Coast AVA. 16 The fog, however, appears to intrude only partially into the portion of the proposed AVA that contains the Fort Ross-Seaview AVA.

Comment 51 also disputes the petition's claims that the proposed AVA generally has warmer nocturnal temperatures than the regions to the east. The comment includes a printout from a graph published by the West Sonoma Coast Vintners that shows the average diurnal temperature shift in the proposed AVA, the Green Valley of Russian River AVA, and the Russian River Valley AVA from veraison through harvest. 17 According to the comment, the graph shows that the Occidental region of the proposed AVA has substantially lower nocturnal temperatures than the Russian River Valley AVA.

Additionally, comment 51 included a letter dated February 20, 2019, from Ronald Clark, a retired naval meteorologist and president of Weather Mission, Inc. 18 The letter responds to additional maximum and minimum temperature data and temperature variation calculations submitted by the petitioner in comment 54. In the letter, Mr. Clark states his belief that diurnal temperature difference is not what “makes the difference in plant growth.” Instead, Mr. Clark suggests that GDDs, which take into consideration the total number of hours a day with temperatures above 50 degrees F, are more important in predicting plant growth, Mr. Clark concludes by stating that neither the climate data in comment 54 nor the climate data provided in the original petition provide sufficient evidence to establish the proposed West Sonoma Coast AVA.

Comment 51 disagrees with the petition's claim that wind speeds within the proposed West Sonoma Coast AVA are lower than within the regions to the south and east. As evidence, the comment provided a map of average annual wind speeds in the western portion of Sonoma County. 19 The map indicates that winds of up to 15.7 miles per hour occur within the proposed AVA and the region to the south, while wind speeds generally do not exceed 14.4 miles per hour in the region to the east.

Comment 51 further claims that the climate data in the petition is incomplete because it does not provide information on rainfall amounts, which the comment claims is required by § 9.12(a)(3)(1) of the TTB regulations. The comment includes a map showing the annual average precipitation amounts for the proposed AVA and surrounding regions from 1981 to 2010. 20 The comment asserts that the average annual precipitation amounts in the four regions of the proposed West Sonoma Coast AVA are too diverse to be included in a single AVA, and that the differences between the Fort Ross-Seaview AVA and the Annapolis, Occidental, and Freestone regions are particularly significant.

Last, comment 51 questions the methodology used by the petitioner to calculate the GDDs of the proposed West Sonoma Coast AVA and the surrounding regions. The comment included a second letter from Roland Clark, dated January 11, 2019. 21 The letter argues that even though the proposed West Sonoma Coast AVA petition “seeks to distinguish the western half [of the established Sonoma Coast AVA] from the eastern, it still does not address differences which have been proven to exist between Annapolis, Fort Ross-Seaview, Occidental and Freestone,” which are all regions within the proposed AVA. Mr. Clark claims that the most basic method of calculating GDDs is “to average the daily low and the daily high temperature, then subtract the determined base temperature and assign 0 for anything less than 0. So for each day, if the average temperature does not exceed the base temperature, no GDD accumulation is added * * *.” According to the letter, a base temperature of 50 degrees Fahrenheit (F) is typically used when calculating GDDs for grapes, and a cap temperature may be applied, typically 85 degrees F. 22 Graph 1 on page 12 of the petition uses 70 degrees F as a base temperature and 90 degrees F as the cap. Mr. Clark claims he ran a “simple average GDD model” with 2017 and 2018 data from five locations in the proposed AVA and two locations within the Russian River Valley AVA. He then ran the same model on the same data using a base temperature of 50 degrees F and a cap of 85 degrees F. Both computations resulted in higher GDD accumulations for the Fort Ross-Seaview AVA than for any other the other locations. The results, he claims, cast doubt on the data in Graph 1 of the petition.

Mr. Clark's letter also questioned Table 3 on page 16 of the petition, noting that the methodology for calculating the information in Table 3 is not described and the data is incomplete. In particular, only one year of data is available from the Red Car Vineyard and KJ Seascape weather stations within the proposed AVA. The letter states that Tables 4 and 5 on pages 16 and 17 of the petition use a single location to represent the entirety of the proposed West Sonoma Coast AVA. Because the methodology of calculating the GDDs is not known and the data is incomplete, the letter concludes that the petition's conclusion of cooler temperatures existing within the proposed AVA than in the surrounding regions cannot be deemed accurate.

Thirty-four comments specifically expressed support for the climate evidence in the petition. These commenters generally state that the proposed West Sonoma Coast AVA's climate is more affected by the marine breezes and fog than the regions farther inland, resulting in cooler daytime temperatures, warmer nighttime temperatures, and later harvest dates. Only 2 of these 32 comments provided objective data, rather than anecdotal evidence, to support their claims. Both of these comments were submitted by the petitioner (comments 54 and 67).

In his first comment (comment 54), the petitioner submitted data relating to the 2018 average maximum and minimum temperatures and average temperature variation for six locations within the proposed AVA, including the Annapolis, Freestone, and Occidental regions and the Fort Ross-Seaview AVA, and four locations in the neighboring Russian River Valley AVA. The data shows that in 2018, the locations within the proposed West Sonoma Coast AVA had lower average maximum temperatures and higher minimum temperatures than the locations in the Russian River Valley AVA. The average diurnal temperature variations for the proposed AVA locations were also smaller than the variations for the Russian River Valley AVA. This data supports the petitioner's original climate claims relating to maximum daytime and minimum nighttime temperatures within the proposed AVA and the surrounding regions.

In comment 67, the petitioner clarifies his characterization of the climatic zones created by Robert Sisson and Paul Vossen, which was questioned in comment 51. The petitioner states that the climatic zones are a “brilliant” creation, but that since their creation, “the kind of weather data available, trial and error with different sites, population densities, and even the climate have all changed.” He states that it is correct to claim that “sections of the West Sonoma Coast AVA with active viticulture are within the Marine climate type,” which was originally created to define regions too cold for successful viticulture. He agrees with comment 51 that portions of the proposed AVA are within the Coastal Cool zone, including much of the Fort Ross-Seaview AVA and portions of the Occidental and Freestone regions. He states that the proposed West Sonoma Coast AVA is based on “the coolest parts of the [established] Sonoma Coast AVA, and that would include the cooler sections of the Coastal Cool climate type and the transitional Marine zone.” He concludes by suggesting that it would be more accurate to say that vineyards in the Fort Ross-Seaview AVA and Annapolis region of the proposed AVA straddle the “edge” between the Coastal Cool and Marine zones, while vineyards “near” Occidental and Freestone are within the Marine zone.

In comment 67, the petitioner also addresses the issue of fog intrusion that was raised in comment 51. He states that the comment inaccurately interpreted the summary in Notice No. 34 of the statement from the winemaker at Peay Vineyards to mean that the Peay Vineyards near Annapolis are below the inversion layer, not above it. The petitioner states that within the proposed AVA, the regions below the fog are generally below 400 feet. Vineyards in the Annapolis region, including the Peay Vineyards, are planted at elevations between 550 and 800 feet, putting them within the fog and not below it. He states that this distinction is important because “solar radiation has less fog to penetrate to reach vines” within the fog layer, as opposed to vines planted below the fog. Sitting below the fog in the Annapolis region, the petitioner concludes, “would likely mean grapes that do not consistently mature.”

The petitioner also responds to comment 51's criticism of the GDD data and methodology used in the petition. He states that the data from Red Car Estate Vineyard used in Graph 1 of the petition is not from a single year, as claimed in comment 51, but is from the years stated in the heading of the graph. He clarifies that Graph 1 of the petition was provided by the West Sonoma Coast Vintners, as noted in the petition, and that he did not describe the methodology used to calculate the GDDs in that graph because he “could not definitively verify the methodology” the association used. The petitioner says that he did receive some partial data sets to test the GDD calculations, but he was unable to do a complete test because the totals for Annapolis, Occidental, and Freestone were in aggregate. He also states that according to the background data, he deduced that GDD was calculated using April 1 to October 31 heat accumulations for temperatures above 50 degrees F, with no cap temperature. The petitioner states that this method is commonly used in the wine industry and is the basis for A.J. Winkler's and M.A. Amerine's wine regions, often referred to as the Winkler Index or Winkler Scale, 23 and is the method he used for the other GDD calculations in the petition.

Last, the petitioner addresses the completeness of his GDD data in the other tables and graphs in the petition, as questioned in comment 51. The petitioner acknowledges that he lacked complete data from every station and every year listed in Tables 2 and 3 of the petition, but that he clearly stated as such in his petition. He also noted that weather station data is becoming increasingly more available, “but because data are available today doesn't mean that they were available at the time of the West Sonoma Coast study.” He also says that he checked the Fort Ross-Seaview AVA, Graton, and Sebastopol weather stations used for the 2017 and 2018 GDD calculations in Exhibit B-1 of comment 51. The petitioner found that the data for those stations for the period during which the petition was written was unavailable or incomplete and, therefore, would have been of little use to him at the time he was developing the proposed West Sonoma Coast AVA petition.

The petitioner also states that he was not aware of the degree day modeling tool from Oregon State University mentioned in comment 51 and instead relied on growers to provide him with data or on data he gathered from the Western Region Climate Center, the California Data Exchange Center, and the California Irrigation Management Information System. He notes that, after learning of the degree day modeling tool, he attempted to test it by locating several stations just outside the proposed AVA. He particularly looked for data from 2010 to 2014, to be consistent with the years he had used in the petition. The petitioner claims that data from those years was also incomplete for the stations he found using the modeling tool. He also discovered that the modeling tool uses temperature observations and digital elevation models to interpolate high and low temperatures and precipitation. He asserts that when this method is used for single-year data sets, the results “are in 4KM x 4KM pixels, which isn't very helpful when trying to assess climatic variations at the scale that assessment of viticulture is usually done at.” Instead, the method is best used with thirty-year normals, and the petitioner states he seldom has 30 years of historical data to make meaningful use of the model. Therefore, he does not believe that using the Oregon State University modeling tool would have provided more accurate GDD data at the time he was developing the petition than the data he obtained from weather stations.

After reviewing the petition and the comments, TTB has determined that the climate of the proposed West Sonoma Coast AVA distinguishes it from the surrounding regions. TTB agrees with the petition's statement that much of the proposed AVA is in the climate zone originally identified as “Marine” by Sisson and Vossen, which was characterized as being too cool for grape growing. TTB points to the climate zone map included in the petition as evidence that much of the proposed AVA is in the Marine zone. 24 TTB also notes that comment 51 acknowledges that some vineyards in the Freestone and Occidental regions are within the Marine zone. TTB lacks data that determines definitively the reason viticulture is now occurring in a zone originally defined as too cool for grape growing. However, TTB has determined that the petition's description of a large portion of the proposed West Sonoma Coast AVA being in the Marine zone is not inaccurate.

TTB finds that, although part of the proposed West Sonoma Coast AVA is within the Coastal Cool zone, the climate zone map in the petition shows the portion within the Coastal Cool zone is smaller than the portion of the regions east of the proposed AVA that are within the Coastal Cool zone. TTB also notes that the petition did not state that the proposed AVA contains only regions within the Marine zone; the petition describes the climate as “ `Marine' to `Coastal Cool' ” and notes that the proposed AVA “contains the western edge of the Coastal Cool climate type.” Therefore, TTB believes that the proposed AVA's climate can be distinguished from that of the region farther east, which lacks the Marine zone and is instead in the Coastal Cool, Coastal Cool transitioning to Coastal Warm, and Coastal Warm zones.

Based on the climate zone map in the petition, TTB does not agree with the assertion in comment 51 that a “significant portion of the Russian River Valley AVA in the eastern portion of the Sonoma Coast AVA” is within the Marine zone. Using the climate zone map, TTB believes that only the extreme southern portion of the Russian River Valley AVA, roughly the triangular region from Cunningham south to Roblar and east to U.S. Highway 101, would be in the Marine zone. TTB agrees that the fog map included as Exhibit A-6 to comment 51 shows marine fog extending east of the proposed West Sonoma Coast AVA into the Russian River Valley AVA, but the map only shows the fog as it occurred on a single day. Therefore, TTB cannot determine from the map alone that the petition was incorrect in stating that the region east of the proposed AVA is not typically subjected to the heaviest marine fog and air.

TTB does agree with comment 51 that the Petaluma Gap AVA, to the south of the proposed AVA, is also within the same Marine zone as much of the proposed West Sonoma Coast AVA. However, the petition did not use climate zones to distinguish the proposed AVA from the region to the south, and instead used topography, geology, and wind speed. Therefore, in spite of the climate zone similarity, TTB has determined that the petition provided suitable evidence for not including the Petaluma Gap AVA in the proposed AVA.

TTB also agrees with comment 51 that several tables in the proposed West Sonoma Coast AVA petition include incomplete or insufficient GDD data. For that reason, TTB did not consider the data in Tables 3 and 4 of the petition when determining if GDDs were a distinguishing feature of the proposed AVA. Additionally, the petition notes that the Laguna de Santa Rosa GDD data in Table 5 came from a station located in a bowl-like region that trapped cooler air and was thus not representative of the climate of the majority of the Russian River Valley AVA. For this reason, TTB did not consider the Laguna de Santa Rosa GDD data in that table. However, TTB did determine that Table 2 of the petition contains sufficient data to indicate lower GDD accumulations in the proposed AVA than are generally found in the region to the east. Table 2 includes four consecutive years of GDD data from a station in Occidental, located within the proposed AVA, and one from Windsor, within the Santa Rosa Plain  25 that covers much of the adjacent Russian River Valley AVA to the east of the proposed AVA. Each year, GDD accumulations within the proposed AVA were lower than those from the Windsor station.

TTB does not agree that the GDD calculations in Exhibit B-1 of comment 51 refute the petition's claims of lower GDD accumulations in the proposed West Sonoma Coast AVA. First, the comment's calculations used data from 2017 and 2018, which was not available at the time the petition was submitted. Second, the comment acknowledges that the summers of 2017 and 2018 were the two hottest summers on record in California, including the coastal regions, so it is possible that the resulting GDD accumulations are skewed and not indicative of typical weather patterns in Sonoma County. Additionally, the calculations in comment 51 used a growing season period of March 1 to October 31, compared to the petition's growing season of April 1 to October 1. Finally, both of comment 51's GDD calculation methods used a cap temperature, whereas the petition's GDD method did not include a cap temperature. For these reasons, TTB does not find that the GDD calculations in comment 51 can be compared directly to the GDD calculations in the petition, nor do they disprove the petition's claims that GDD accumulations east of the proposed AVA are generally higher than within the proposed AVA.

TTB also disagrees that the graph created by the West Sonoma Coast Vintners and included in comment 51 as Exhibit D-8 disproves the petition's claim that nocturnal temperatures in the proposed West Sonoma Coast AVA are generally warmer than nocturnal temperatures in the regions to the east. The graph does show that nighttime temperatures in the Russian River Valley and Green Valley of Russian River AVA are warmer than two of the three proposed AVA locations at hours 20 through 24. However, the graph also shows that temperatures in the Russian River Valley and Green Valley of Russian River Valley AVAs continue to fall into the early morning hours, so that between hours 0 and 8, only one proposed AVA location has lower temperatures. Additionally, the graph does not include a period of record for the data, nor does it say where the weather stations were located within the Russian River Valley and Green Valley of Russian River Valley AVAs. As a result, TTB cannot determine the period of time the data represents, or if the data for each AVA comes from a single station or is an average of multiple stations' data. Therefore, TTB does not believe that the graph in comment 51 provides sufficient evidence to disprove the nocturnal temperature data in the petition.

TTB disagrees with the assertion in Exhibit B-2 of comment 51 that the proposed AVA should not be established because the climate data in comment 54 is insufficient. TTB agrees that the single year of average maximum and minimum temperatures included in comment 54 is insufficient by itself to demonstrate climate differences. However, the petition did include similar data collected from multiple consecutive years. As described in Notice No. 177, the temperature data suggested that the proposed AVA generally has lower maximum temperatures and higher minimum temperatures than the region to the east. The information included in Exhibit B-2 of comment 51 does not disprove the data included in the petition, nor does it disprove the average maximum temperature and average minimum temperature date included in comment 54.

TTB does agree that the single year of diurnal temperature variation data included in comment 54 is insufficient to demonstrate a difference between the proposed AVA and the surrounding regions. However, TTB notes that diurnal temperature variation data was not included in the original petition, nor was it considered to be a distinguishing feature of the proposed AVA in Notice No. 177. Instead, GDDs and average monthly maximum temperatures and average monthly low temperatures were discussed as distinguishing climatic features. TTB believes that the climate data in the petition, along with the topographic and geologic information, is sufficient to demonstrate that conditions within the proposed West Sonoma Coast differ from those of the surrounding regions.

With respect to the question of the petition's wind speed data, TTB finds the wind speed map in comment 51 (Exhibit A-4) does not refute the petition's claim of higher wind speeds to the south of the proposed West Sonoma Coast AVA, within the Petaluma Gap AVA. TTB agrees with comment 51 that the wind speed map does appear to show that wind speeds immediately to the east of the proposed AVA, within the western portions of the Russian River Valley and Green Valley of Russian River AVAs, are lower, whereas the data in the petition that indicates higher wind speeds is from a location farther east within the Russian River Valley AVA, in the town of Windsor. The comment's map indicates that wind speeds in the western parts of the Russian River Valley and Green Valley of Russian River Valley AVAs are generally less than 12 miles per hour. While wind speeds within those two AVAs may generally be lower than those generally found within the proposed AVA, the map also suggests that there are, in fact, regions east of the proposed AVA that do have higher wind speeds. In particular, the map shows wind speeds east of the Annapolis region of the proposed AVA reaching 15.7 miles per hour, compared to calmer speeds of between 0 and 14.3 miles per hour near Annapolis. However, the regions of higher wind east of Annapolis have similar speeds to the regions near the southern end of the Fort Ross-Seaview AVA and between the towns of Jenner and Carmel, which calls into question the petition's claim that winds east of the proposed West Sonoma Coast AVA are higher than within the proposed AVA. As a result, TTB has determined that wind speeds cannot definitively distinguish the proposed AVA from the region to the east. However, TTB continues to believe that wind speed does distinguish the proposed AVA from the region to the south, within the Petaluma Gap AVA.

Last, TTB disagrees with comment 51 that the petition is incomplete because it did not include precipitation data from within the proposed AVA and the surrounding regions. The TTB regulations in § 9.12(a)(3)(i) list precipitation as a climate feature that may be used to distinguish a proposed AVA. However, the TTB regulations do not require a petition to include all the types of climate information listed in § 9.12(a)(3)(i). Therefore, the proposed West Sonoma Coast AVA can meet the regulatory requirements without discussing precipitation—or without mentioning climate at all—as long as at least one of the features listed in § 9.12(a)(3) is used to distinguish it from the surrounding regions.

Two comments specifically oppose the petition's characterization of the topography and elevation of the proposed West Sonoma Coast AVA and the surrounding regions. However, only comment 51 provides evidence to support its claims. Comment 51 first asserts that the four main regions of the proposed West Sonoma Coast AVA (the Fort Ross-Seaview AVA and the Annapolis, Freestone, and Occidental regions) are too diverse in topography and elevation to be included in a single, cohesive AVA. The comment claims the petition's characterization of the proposed AVA as a region of steep, rugged mountains and ridgelines is inaccurate. According to the comment, the region near Annapolis is rugged and steep, but the Freestone region is not mountainous and instead consists of low rolling hills and valleys. The comment asserts the Occidental region is a mixture of mountains, ridgelines, and rolling hills with low valleys. Comment 51 also states that, contrary to the petition's claims of lower elevations outside the proposed AVA, the adjacent areas have peaks exceeding 1,000 feet.

The comment also includes a map of vineyard locations and elevations within the proposed AVA and states that vineyards in the four regions of the proposed AVA are planted at varying elevations, which results in different growing conditions within the proposed AVA. 26 For example, the comment claims that all the vineyards except one within the Fort Ross-Seaview AVA are planted above 900 feet, which is above the fog line, while all vineyards in the Annapolis and Freestone regions are planted below 900 feet, which is within and below the fog line. Vineyards within the Occidental region, according to the comment, are planted both above and below the fog line.

Twenty-one of the supporting comments address the topography and elevation of the proposed West Sonoma Coast AVA. All these comments note the area within the proposed AVA has high elevations and mountainous terrain, and some comments assert these two attributes contribute to unique growing conditions for viticulture within the proposed AVA. Comment 67, submitted by the petitioner, was the only supporting comment that provided substantive, non-anecdotal evidence.

In comment 67, the petitioner responds to claims in comment 51 about the accuracy of the topographic and elevation evidence in the petition. The petitioner first addresses the topography of the Freestone region of the proposed AVA, which he described in the petition as steep. He acknowledges that the terrain “transitions to rolling hills south of Freestone, but the territory west of Freestone remains steep.” As evidence, he included a slope map of the entire proposed AVA and the surrounding regions, 27 as well as a topographic profile of the region stretching westward from the most major road intersection in Freestone to the coast. 28

With respect to the elevations within the proposed AVA, the petitioner disputes the claim in comment 51 that the Freestone region has elevations as low as 52 feet and lacks high coastal ridges. He notes that both Attachments A and B of his comment 67 demonstrate the presence of higher ridges in the regions west of Freestone. He states that elevations west of Freestone do not drop as low as 50 feet along Salmon Creek until the creek is less than 2 1/2 miles from the Pacific Ocean. The petitioner believes the low region described in comment 51 likely refers to the land along Estero Americano, which is south of the proposed West Sonoma Coast AVA, within the Petaluma Gap AVA.

Last, comment 67 acknowledges that there are elevations over 1,000 feet within the Russian River AVA, as stated in comment 51. However, the petitioner states that the description of the elevations of the Russian River Valley AVA that he included in the proposed AVA petition referred to “the terrain east of the proposed West Sonoma Coast AVA at its adjacent location south of the Russian River ( i.e., moving east from the common border onto the Santa Rosa Plain).” He then asserts that the higher peaks within the Russian River Valley AVA “are removed from the coastal ridges of the West Sonoma Coast” and therefore are not relevant to the distinguishing characteristics of the entire proposed West Sonoma Coast AVA.

After reviewing the information in the petition and the comments, TTB has determined that topography and elevation are distinguishing features of the proposed AVA. TTB agrees with comment 51 that there is a range of elevations and slope angles within the proposed West Sonoma Coast AVA. However, TTB does not agree with comment 51 that the topography is too diverse to be included in a unified AVA. As noted earlier, the proposed West Sonoma Coast AVA is located within two larger established AVAs: The Sonoma Coast AVA and the North Coast AVA. TTB recognizes that any AVA may have a degree of variation in its topography, but the AVA must still be distinguishable from the surrounding regions. The elevation map included in comment 51 shows that, while elevations below 400 feet do occur in the proposed AVA, most of the proposed AVA contains elevations between 400 and 2,297 feet. The Annapolis and Occidental regions, as well as the Fort Ross-Seaview AVA all contain elevations between 400 and 2,297 feet, while the region near Freestone also contains elevations between 400 and 900 feet.

TTB also agrees with comment 51 that certain peaks within the Sonoma Coast and Russian River AVAs east of the proposed West Sonoma Coast AVA do exceed 1,000 feet. However, TTB does not believe that the existence of certain peaks to the east of the proposed AVA that have elevations above 1,000 feet refutes the petition's claims that elevations outside the proposed AVA are generally lower and less steep. The Russian River Valley is still largely characterized by the Santa Rosa Plain, which the petition states has lower elevations and gentle slopes of 5 percent or less. The Santa Rosa Plain is also located within the portion of the Sonoma Coast AVA that does not include the proposed West Sonoma Coast AVA. To the south of the proposed AVA is the Petaluma Gap AVA (27 CFR 9.261), which is distinguished from surrounding areas by containing “low, rolling hills not exceeding 600 feet,” “small valleys and fluvial terraces,” and “flat land along the Petaluma River * * *.” (See T.D. TTB-149, December 7, 2017, 82 FR 57660).

Four comments oppose the AVA, asserting it contains geologies too diverse to be within one AVA. One of the opposing comments questions the petition's description of the geology of the proposed AVA and the surrounding regions. Comment 51 asserts that the proposed AVA is not comprised predominately of sedimentary rock of the Franciscan Complex, as claimed in the petition, but instead is comprised of a variety of geologic features. The comment included a letter from professional geologist Ryan Padgett, 29 along with a map of the geology of the proposed AVA and the surrounding regions  30 as evidence of the variety of geologic features within the proposed AVA. The comment states that the region near Annapolis where vineyards are planted is mainly Ohlson Ranch formation. Vineyards in the Fort Ross-Seaview AVA are planted mostly on what the comment describes as a “mélange and greywacke sandstone and in a metabasalt unit of the Franciscan Formation with some localized plantings in Ohlson Ranch Formation * * *.” Last, the comment states that vineyards in the Freestone and Occidental regions are predominately planted in the Wilson Grove formation. The comment asserts that this fact is contrary to the petition's claim that the Wilson Grove formation does not exist within the proposed West Sonoma Coast AVA.

Nineteen supporting comments address the geology of the proposed AVA, generally noting that the proposed West Sonoma Coast AVA has a unique underlying geological structure. Some comments assert that the area within the proposed AVA has unique soil, and note this soil is comprised primarily of sedimentary material, rather than alluvium.

Comment 67, submitted by the petitioner, was the only comment that included substantive evidence to support its claims. Comment 67 first states that, contrary to the assertion in comment 51, the petition does not claim the Wilson Grove Formation is not found within the proposed AVA. Instead, the petition states that the Wilson Grove Formation is “a much more common unit in the Petaluma Gap and southwestern Russian River Valley” outside of the proposed AVA. The petitioner agrees with comment 51 that the Wilson Grove Formation is found in the southeastern portion of the proposed West Sonoma Coast AVA. However, the petitioner provides a geologic map  31 of the proposed AVA and surrounding regions to support his claim that, while the Wilson Grove Formation is present in portions of the proposed AVA, it is more common in the regions to the south and east of the proposed AVA.

After reviewing the petition and the comments, TTB has determined that geology is a distinguishing feature of the proposed West Sonoma Coast AVA. TTB agrees with the petitioner's statement in comment 67 that the petition did not exclude the Wilson Grove formation entirely from the proposed AVA. The petition indicates that the formation is present in a portion of the proposed AVA, but the formation is much more common outside the proposed AVA, particularly in the Petaluma Gap and Green Valley of Russian River Valley AVAs and the southwestern region of the Russian River Valley AVA. TTB believes the geologic maps included in comments 51 and comment 67 support the petitioner's claims.

TTB also believes that the geologic maps in comments 51 and 67, along with the letter from the professional geologist included in comment 51, do not refute the petitioner's claims regarding the prevalence of the geologic unit known as the Franciscan Formation within the proposed West Sonoma Coast AVA. Therefore, TTB has determined that the petition correctly identifies the Franciscan Formation as comprising much of the proposed AVA.

Although comment 51 is correct that the vineyards in the Annapolis, Freestone, and Occidental regions of the proposed AVA are planted in geologic features other than the Franciscan Complex, those regions still contain large regions of Franciscan Complex. For example, the Annapolis region contains geologic units identified on the map in Exhibit A-8 of the comment as “Sandstone-Maastrichtian (Franciscan Complex).” The Freestone and Occidental regions contain units identified as “Graywacke and mélange (Franciscan Complex).” Furthermore, the geologic map indicates that vineyards in the Fort Ross-Seaview AVA are planted on the same unit of the Franciscan Formation found in the Annapolis region. Therefore, TTB believes the petition is correct when it states that the Franciscan Complex comprises much of the proposed AVA.

Two comments specifically object to the proposed West Sonoma Coast AVA on the basis of the proposed boundary. The two comments, comments 51 and 52, both express the belief that the proposed West Sonoma Coast AVA contains too many public and protected lands and beaches on which vineyards will never be planted. Comment 51 includes a map of the public and protected lands within the proposed AVA  32 and further states that lands unavailable for commercial viticulture should be removed from the proposed boundaries, per guidance given in TTB's AVA Manual for Petitioners. 33

Comment 51 also claims that when TTB excluded the town of Fort Ross in the Fort Ross-Seaview AVA, the bureau set a precedent for omitting coastal regions from AVAs. According to the comment, TTB did not agree with the Fort Ross-Seaview AVA petition's proposal to include the town in the AVA because the town was located in a cold, low-elevation area near the coastline where viticulture is not viable.

Comment 51 also asserts that TTB should reject the proposed West Sonoma Coast AVA boundary because the written boundary description in the petition does not match the proposed boundaries drawn on the USGS maps or the boundary as published in Notice No. 177. The comment provided several examples of what it described as inaccuracies in the written boundary description, including incorrect distances between points and erroneous section numbers. 34

Another issue raised in comment 51 is the placement of the northeastern boundary of the proposed West Sonoma Coast AVA. The northeastern boundary omits from the proposed AVA a mountainous region that comment 51 refers to as the “Excluded Corridor.” According to the comment, this region contains similar topography to the proposed AVA and was arbitrarily excluded.

Comment 51 further claims that the proposed West Sonoma Coast AVA boundary is arbitrarily drawn because it does not include all the regions previously promoted by the West Sonoma Coast Vintners as being in the “West Sonoma Coast.” The comment includes several West Sonoma Coast Vintners publications showing that portions of the Russian River Valley, Green Valley of Russian River Valley, and Petaluma Gap AVAs, as well as the region informally known as Sebastopol Hills, were at various times represented by the association as being part of the “West Sonoma Coast.”  35 The comment notes that as late as 2018, the association promoted the Sebastopol Hills region as part of the “West Sonoma Coast AVA Marketing Region.”  36 According to the comment, these various representations of the “West Sonoma Coast” demonstrate that the boundary proposed in the AVA petition is not based on solid name or distinguishing features evidence, as required by § 9.12(a)(2) of the TTB regulations.

In response to Notice No. 177, TTB received thirteen comments that support the boundaries of the proposed West Sonoma Coast AVA. Nine of the comments generally express support for the proposed AVA as a way to create a smaller, more tightly defined AVA within the larger, more diverse Sonoma Coast AVA.

Four comments submitted in response to Notice No. 177 specifically express support for the proposed West Sonoma Coast AVA boundary as it was described in the proposed rule. One of these comments (comment 55) supports the proposed West Sonoma Coast AVA boundaries, in general, but also asks that they be expanded. Comment 55, submitted by Hans Vidkjer of Atlas Vineyard Management, requests that the proposed northeastern boundary be expanded slightly to include Walala Vineyard. Mr. Vidkjer claims that the vineyard, which contains 18 acres of Pinot Noir, is only 0.7 mile east of the proposed AVA boundary. The comment contains evidence that Mr. Vidkjer believes demonstrates that the Walala Vineyard has mean temperatures, nocturnal temperatures, elevations, slopes, and geology that are similar to those of the proposed West Sonoma Coast AVA.

The other three comments specifically support using the coastline as the western boundary of the proposed AVA. Comment 53, submitted by the winegrower of Peay Vineyards, states that the coastline was used as the western boundary “as a matter of simplicity.” Comment 70, submitted by a self-identified local wine industry member, believes the coastal regions should remain in the proposed West Sonoma Coast AVA. The comment acknowledges that is it difficult to ripen grapes in the extreme coastal regions of the proposed AVA, but “it is not impossible to achieve a level of ripeness that would enable a producer to produce a sparkling wine from this less-ripe fruit.” Comment 67, submitted by the petitioner, also states that the coastline was used for simplicity. The comment goes on to say that removing all the public and protected lands from the proposed AVA would also have created an unnecessarily complicated boundary. The petitioner notes that TTB has established AVAs that include publicly-owned lands in order to avoid creating boundaries that are cumbersome to describe and difficult to administer. As evidence, he cites the Malibu Coast AVA (27 CFR 9.235), where 37 percent of the land within the AVA is administered by the Federal Government or the State of California.

Comment 67 also addresses comment 51's discussion of the discrepancies between the written boundary description and the boundary drawn on the USGS maps. The petitioner believes that the commenters may have relied upon copies of the USGS maps that were included as Exhibit A to the proposed West Sonoma Coast AVA petition. The petitioner notes, however, that he worked in consultation with TTB to make “modest adjustments” to the proposed boundaries to provide better clarity and simplification to the boundary description. These consultations took place in January of 2017, and as a result, the boundary description included in the proposed rule would not exactly match the original boundaries drawn on the USGS maps at the time the commenters may have viewed them. The petitioner states that any typographic errors appearing in the boundary description of the proposed rule may be corrected as needed, but they “do not otherwise discredit the integrity of the proposed boundary.”

The petitioner also explains why the proposed AVA boundary does not include the region referred to in comment 51 as the “Excluded Corridor.” He claims that his field review of the region around Annapolis found a noticeable shift in vegetation approximately 8 miles inland from the coast. He explains that such a shift in vegetation signals a difference in climate and possibly soils. Therefore, even though the terrain of the Exclusion Corridor resembles that of the proposed West Sonoma Coast AVA, the change in vegetation strongly suggests the region does not share the same climate or underlying geology as the proposed AVA and should not be included.

In comment 67, the petitioner then addresses why the proposed West Sonoma Coast AVA boundary does not include certain regions that were previously described in various West Sonoma Coast Vintners publications as being within the “West Sonoma Coast.” The petitioner explains that when the West Sonoma Coast Vintners association was first formed, it was “originally concerned with discerning the coolest regions of the west Sonoma Coast AVA from the greater Sonoma Coast AVA.” The Green Valley of Russian River AVA, the Sebastopol Hills region, and a portion of the Petaluma Gap AVA were all considered to be cooler than the regions of the Sonoma Coast AVA that are farther inland and were included in the association's early maps of the “West Sonoma Coast.” Over time, and after consultation with AVA experts, the group determined that the extreme coastal mountains are unique from the milder topography of the Petaluma Gap and Green Valley of Russian River Valley AVAs, and also the Sebastopol Hills region. As a result, these regions ultimately were not included in the proposed West Sonoma Coast AVA boundary that was submitted to TTB.

After careful review of the petition and comments, TTB has determined that the boundary as it was described in Notice No. 177, with the addition of the Walala Vineyard as requested in comment 55, is appropriate and shall be maintained.

TTB does not believe that the coastline and all public and protected lands need to be removed from the proposed West Sonoma Coast AVA. To do so would create an unnecessarily complex boundary that would be difficult to describe and to administer. Although TTB's AVA Manual for Petitioners does recommend removing public lands or lands otherwise unavailable for commercial viticulture, it does not require it. TTB typically does not request the removal of these lands unless they may be easily excluded without creating holes within the interior of the proposed AVA or an overly complex boundary description. Examples of established AVAs whose petitions specifically mention that the AVAs contain public lands include Upper Hiwassee Highlands (27 CFR 9.234) and Malibu Coast (27 CFR 9.235).

TTB does not agree with comment 51 that the exclusion of the town of Fort Ross from the established Fort Ross-Seaview AVA set a precedent for removing all coastal lands from AVAs. TTB has established many AVAs whose boundaries include a coastline, including the North Coast and Sonoma Coast AVAs, as well as the Martha's Vineyard (27 CFR 9.73), Long Island (27 CFR 9.170), Outer Coastal Plain (27 CFR 9.207), and Tip of the Mitt (27 CFR 9.257) AVAs. TTB notes that the town of Fort Ross was not included in the Fort Ross-Seaview AVA because one of the key features of the Fort Ross-Seaview AVA is elevations above 900 feet; the town of Fort Ross is located at lower elevations. Therefore, excluding a town with lower elevations from an AVA that is primarily characterized by elevations above 900 feet is appropriate, especially when removing the town from the AVA would not create a hole in the interior of the AVA. In addition, the exclusion of Fort Ross from the Fort Ross-Seaview AVA did not preclude TTB from including both the town and the AVA in the established Sonoma Coast and North Coast AVAs, which are larger, regional AVAs with broad characteristics that both the town and the AVA share.

TTB acknowledges that the proposed boundary description for the proposed West Sonoma Coast AVA that was included in Notice No. 177 is different from the description contained in the petition and originally shown on the USGS maps. TTB regularly works with petitioners to ensure that the boundary description meets TTB requirements and is described and defined as clearly as possible. When TTB accepts a petition as “perfected,” that simply means an initial review of the petition finds that it contains sufficient evidence to meet the regulatory requirements. However, TTB's acceptance of a “perfected” petition does not mean that TTB will not ask for additional information or edits to clarify the information or proposed boundary in the petition before publishing a proposed rule. TTB acknowledges that there are some minor typographic errors in the boundary description in Notice No. 177, particularly in paragraphs (c)(2), (14), (15), (21), and (24). These errors have been corrected in the boundary description at the end of this document.

With respect to the “Excluded Corridor” referred to in comment 51, TTB believes that the petition, along with the information provided by the petitioner in comment 67, provides a sufficient rationale for not including this region in the proposed West Sonoma Coast AVA. East of the proposed northeastern boundary, the climate is not affected by the heaviest marine influence and transitions entirely to the Coastal Cool zone and then to the Coastal Warm zone.

TTB does not agree with the assertion in comment 51 that the proposed AVA boundary is arbitrarily drawn and does not comply with the requirements of § 9.12(a)(2) of the TTB regulations. The petition included evidence that topography, climate, and geology are different outside the boundary of the proposed AVA. The petition also included evidence to demonstrate those regions of Sonoma County that are considered to be in the “West Sonoma Coast,” and the proposed boundary does not include regions that are not known by that name.

TTB does not believe that the West Sonoma Coast Vintners' changing definition of what defines the “West Sonoma Coast” demonstrates that the proposed West Sonoma Coast AVA boundaries are arbitrarily drawn. TTB agrees with the petitioner's assertion in comment 67 that the association refined over the years what it considered to be the key factors of the region—namely, mountainous terrain with heavy marine influence. Therefore, it is not inappropriate that the boundary that was proposed for a West Sonoma Coast AVA differs from what the association originally envisioned.

TTB also does not agree that the historical publications of the West Sonoma Coast Vintners are attempts by the association to mislead or deceive TTB or the public or to violate the requirements of § 4.39(a)(1) of the TTB regulations, as suggested in comment 51. The TTB regulations do not prohibit the region known by a proposed AVA name to be larger than the area included in the AVA. The regulations also do not prohibit an association from accepting members who are not within the boundaries of the AVA. However, TTB does note that wines produced primarily from grapes grown outside the AVA would not be allowed to be labeled with the AVA name or to be marketed as coming from within the AVA.

As previously mentioned, TTB is modifying the proposed West Sonoma Coast AVA boundary to include the Walala Vineyard, which is just east of the Annapolis region of the proposed AVA. Comment 55, which requests including Walala Vineyard in the proposed AVA, provided information on the climate, elevations, slope angle, and geology of the Walala Vineyard. The Walala Vineyard climate data was compared to the climate of the Goldrock Vineyard, located within both the proposed AVA and the Fort Ross-Seaview AVA, and to Windsor, which was the inland comparison location used in the proposed AVA petition. The data suggests that the mean growing season temperatures within the Walala Vineyard are very similar to those in the Goldrock Vineyard and cooler than those in Windsor. The data also suggests that minimum temperatures within the Walala Vineyard are higher than those in Windsor; minimum temperature data was not included for the Goldrock Vineyard. These climate findings are similar to those included in the proposed West Sonoma Coast AVA petition, which indicate cooler maximum and warmer minimum temperatures within the proposed AVA than are found in the inland regions to the east. Comment 55 also described the average elevation within the Walala Vineyard as 1,150 feet, which is within the range of elevations included in the proposed AVA and higher than the average elevation of the Santa Rosa Plain, within the Russian River Valley AVA. The comment also provided a map of slope angles that indicates the Walala Vineyard has slope angles similar to those in the Annapolis region of the proposed AVA, which is adjacent to the Walala Vineyard. 37 Finally, the comment included a geologic maps of the vineyard and the Annapolis region, which indicates that the vineyard is located on the Franciscan Formation  38 and has soils derived from weathered sedimentary rock, 39 similar to the proposed AVA.

In response to an inquiry from TTB, Mr. Shabram provided an email indicating that the board of directors of the West Sonoma Coast Vintners voted unanimously to expand the proposed AVA boundary to include Walala Vineyard. Because of the evidence included in comment 55, TTB is modifying the boundary of the proposed West Sonoma Coast AVA to include the Walala Vineyard.

Comment 51 asserts that establishing the proposed West Sonoma Coast AVA would be an “arbitrary and capricious” decision “inconsistent with the purposes of the FAA Act and [TTB] Regulations” and “contrary to the public interest.” The comment first notes that the Federal Alcohol Administration Act (FAA Act) “prohibit[s] consumer deception and the use of misleading statements” on wine labels. The comment then states that TTB regulations in § 4.39 prohibit wine labels from containing “[a]ny statement that is false or untrue in any particular” or creates a “misleading impression.” Furthermore, the comment claims that the petition contains “a number of factual errors, unverified and incomplete or illegible documents, data, charts, and maps” and cannot be considered “true and correct.” For these reasons, the comment claims that allowing wine to be labeled as “West Sonoma Coast” would mislead consumers by falsely attributing “common quality, reputation, and characteristics” to wine made from grapes grown in an AVA comprised of regions with “dissimilar climates, geology, physical features and maximum and minimum elevations.”

TTB did not receive any comments specifically addressing the comment's claims that establishing the proposed West Sonoma Coast AVA would be arbitrary and capricious, and inconsistent with the FAA Act or TTB regulations. However, TTB did receive 20 comments that express the belief that the proposed AVA would provide more information to consumers and help them distinguish coastal wines from wines made from grape grown farther inland. As discussed earlier in this document, TTB also received numerous comments supporting the petition's claim that the various regions within the proposed AVA contain similar distinguishing features that distinguish the proposed AVA from the larger established Sonoma Coast AVA.

TTB has carefully reviewed the information in the petition and in the comments received in response to Notice No. 177, including the information in comment 51. TTB believes that the information in comment 51 and in other opposing comments does not conclusively demonstrate that all the information in the petition is false, misleading, or erroneous. Based on information provided in comment 51, TTB has re-evaluated its determination that wind speeds distinguish the proposed AVA from the region to the east. However, as discussed earlier in this document, TTB still believes the petition provided sufficient information to meet the regulatory requirements for an AVA petition; namely, the petition provided name evidence, a delineated boundary, and evidence that the various regions within the AVA share similar features that are distinguishable from the surrounding regions and affect viticulture. Therefore, TTB does not believe that establishing the proposed West Sonoma Coast AVA would be an arbitrary and capricious decision inconsistent with the FAA Act or TTB regulations, nor does TTB believe that allowing wines to be labeled with “West Sonoma Coast” as an appellation of origin would mislead the public.

Twenty-one comments specifically mentioned the proposal to include the Fort Ross-Seaview AVA within the proposed West Sonoma Coast AVA. Ten comments opposed the inclusion, while 11 comments supported it. Six of the supporting comments and three of the opposing comments were submitted by wine industry members who specifically indicated affiliations with wineries or vineyards within the Fort Ross-Seaview AVA.

Several of the comments simply expressed opposition or support with a general statement that the characteristics of the established AVA were either similar to or different from the proposed West Sonoma Coast AVA. However, other comments mentioned specific reasons for opposing or supporting the proposed AVA. Those specific reasons will be discussed in the following sections.

Five comments express the belief that the reputation of the Fort Ross-Seaview AVA would be harmed if it were included in the proposed West Sonoma Coast AVA. Four of these comments were submitted by wine industry members who claim an affiliation with vineyards or wineries within the Fort Ross-Seaview AVA (comments 44, 48, and 51). The opposing comments generally claim that the characteristics of the Fort Ross-Seaview AVA would be “watered down” (comment 48) if it were included, and that “the elements that make Fort Ross-Seaview so unique would be lost in this change” (comment 41). The result would be “quite confusing to consumers,” (comment 44) who would no longer know what to expect from wines labeled with the Fort Ross-Seaview AVA. This consumer confusion could lead to “incalculable damage” for winemakers and grape growers within the AVA (comment 51).

Six of the comments disagree with the idea that the Fort Ross-Seaview AVA would be diminished or devalued if it was included in the proposed West Sonoma Coast AVA. Four of these comments were submitted by wine industry members who claim an affiliation with vineyards or wineries within the Fort Ross-Seaview AVA (comments 31, 34, 63, and 66). Comment 31 believes that the Fort Ross-Seaview AVA and the proposed West Sonoma Coast AVA are “harmonious and complementary,” and that including the established AVA in the proposed AVA will help customers “distinguish wines from the coast” of Sonoma County. The commenter also notes that her vineyard, Hirsch Vineyards “are strong proponents of the Fort Ross Seaview AVA, and helped foster its creation.” The winemaker of Alma Fria Wines submitted two comments (comments 34 and 66) that support including the Fort Ross-Seaview AVA in the proposed AVA. In comment 34, he expressed his belief that including the Fort Ross-Seaview AVA in the proposed West Sonoma Coast AVA would “help bring clarity to consumers” because wines from the proposed AVA “have much in common with each other and very little in common with wines from other areas” of the larger Sonoma Coast AVA. In comment 66, he states that both the Fort Ross-Seaview AVA and the proposed West Sonoma Coast AVA are “supported by the facts and can co-exist without impacting each other.” Comment 63, submitted jointly by six wineries and vineyards within the Fort Ross-Seaview AVA, believes that “growers, winemakers, wine writers, other wine professionals, and many consumers recognize the similarities between the Fort Ross-Seaview AVA and the greater West Sonoma Coast” and that “[t]hese similarities set the entire West Sonoma Coast region apart from the greater Sonoma Coast AVA including the Russian River Valley and Petaluma Gap AVAs.”

Comment 59 uses the example of the AVAs located within the Napa Valley AVA (27 CFR 9.23) to illustrate the belief that inclusion in the proposed AVA would not harm the reputation of the Fort Ross-Seaview AVA. The comment notes that, while there are “significant distinctions” between each of the smaller AVAs within Napa Valley, they all share the overarching characteristics of the “long established and much appreciated Napa Valley AVA.” The comment also notes the lack of petitions requesting the removal of the smaller AVAs from the Napa Valley AVA, and suggests this demonstrates that the Napa Valley AVA and the smaller AVAs within it benefit from each other, as the Fort Ross-Seaview AVA and the proposed West Sonoma Coast AVA would benefit from each other.

Comment 61, from the sales director of a vineyard located within the Napa Valley AVA, also compares the inclusion of the Fort Ross-Seaview AVA in the proposed West Sonoma Coast AVA to the smaller AVAs located within the Napa Valley AVA. He claims that, although the Napa Valley AVA name is “the most valuable designation in American viticulture,” the appellation does not “diminish the usefulness of distinguishing wines” made within the smaller nested AVAs. The comment concludes that the Fort Ross-Seaview AVA is “undoubtedly as Western Sonoma and as coastal as Rutherford [AVA] and Oakville [AVA] are Napa Valley [AVA].”

After careful review of the petition and comments, TTB believes that, although it has unique features, the Fort Ross-Seaview AVA still shares the broad distinguishing characteristics of the proposed West Sonoma Coast AVA. In particular, both regions have steep mountainous terrain, sedimentary soil, and a maritime-influenced climate that is generally cooler during the day and warmer during the night than the more inland regions of Sonoma County. Because both regions share these similarities, TTB does not believe that including the Fort Ross-Seaview AVA within the proposed AVA would mislead consumers. Furthermore, establishment of the proposed West Sonoma Coast AVA would not require winemakers to discontinue use of the Fort Ross-Seaview AVA name or to adopt the West Sonoma Coast AVA name. Such decisions would be entirely up to the individual proprietors.

TTB also does not find that the commenters provided evidence to support their claims that the reputation of the Fort Ross-Seaview AVA would be harmed by the establishment of the proposed West Sonoma Coast AVA, or that the inclusion of an established AVA within a larger AVA would be detrimental to the smaller AVA's image. TTB notes that many well-known AVAs are located within other AVAs, including the Arroyo Seco (27 CFR 9.59), Sta. Rita Hills (27 CFR 9.162), Red Mountain (27 CFR 9.167), Yakima Valley (27 CFR 9.69), and Eola-Amity Hills (27 CFR 9.202) AVAs. The reputation of an AVA and any benefit derived from the use of a viticultural area name would be the result of a proprietor's efforts and consumer acceptance of wines from that area.

Three comments oppose including the Fort Ross-Seaview AVA in the proposed AVA because they believe doing so would contradict previous TTB rulings, specifically T.D. TTB-98, which established the Fort Ross-Seaview AVA. Only one of these comments (comment 51) was from a wine industry member located within the Fort Ross-Seaview AVA.

Comment 38 notes that T.D. TTB-98 established the Fort Ross-Seaview based on its unique climate and geology. The commenter asserts that including it “as part of a larger area simply confuses that prior designation without any evidence that the prior AVA's boundaries were mistakenly restrictive.” Comments 51 and 52 both cite TTB's decision in T.D. TTB-98 not to include the region near Annapolis in the Fort Ross-Seaview AVA. According to these two comments, TTB's decision demonstrates that the two regions are too dissimilar to be included in a single AVA. Comment 51 also asserts that TTB's initial acceptance of a petition to establish a Freestone-Occidental AVA in 2008 further demonstrates that the region of the proposed West Sonoma Coast AVA which includes Freestone and Occidental is a distinct region that should not be included in an AVA that also includes the Fort Ross-Seaview AVA. To include the Fort Ross-Seaview in a single AVA that contains such different regions would, according to comment 51, be “requesting TTB to create a new type of hybrid AVA.”

Comment 51 also asserts that, by establishing the Fort Ross-Seaview AVA, TTB has already determined that it is “viticulturally distinguishable” from the surrounding regions. Therefore, including it in the proposed West Sonoma Coast AVA would “undermine the credibility and the integrity of the AVA system,” as well as negate the findings of T.D. TTB-98. First, the comment states that rainfall is substantially higher in the Fort Ross-Seaview AVA than in the Annapolis, Freestone, and Occidental regions of the proposed West Sonoma Coast AVA. The comment also states that T.D. TTB-98 determined that the Fort Ross-Seaview AVA was in the Coastal Cool zone, not the Marine zone, and is therefore not as influenced by marine fog as other regions in the proposed West Sonoma Coast AVA. Elevations within the Fort Ross-Seaview AVA are above the fog line, allowing greater solar radiation exposure and warmer daytime temperatures than are generally found within the proposed West Sonoma Coast AVA. The comment cites the exclusion of the Santa Cruz Mountains AVA (27 CFR 9.31) from both the larger San Francisco Bay AVA (27 CFR 9.157) and Central Coast AVA (27 CFR 9.75) as an example of an instance where a smaller AVA was determined to be too distinct to be included in a larger overlapping AVA.

Comment 67, submitted by the petitioner, was the only comment to address how the inclusion of the Fort Ross-Seaview AVA in the proposed West Sonoma Coast AVA would affect TTB's determination in T.D. TTB-98.

In comment 67, the petitioner responds to the reasons cited in comment 51 to exclude the Fort Ross-Seaview AVA from the proposed AVA. He first states that the proposed AVA petition is not an effort “to apply the characteristics that define the Fort Ross-Seaview AVA to the entire West Sonoma Coast region,” and that the proposed West Sonoma Coast AVA is not defined by all of the same distinguishing criteria as the Fort Ross-Seaview AVA. Referencing a 2010 letter submitted to TTB during the rulemaking process that led to the creation of the Fort Ross-Seaview AVA, the petitioner notes that the Fort Ross-Seaview is a “local wine growing area,” while the proposed West Sonoma Coast AVA is a “regional viticultural area” which may encompass smaller, more localized AVAs. Establishing the proposed West Sonoma Coast AVA, he claims, would have no impact on the continued existence of the Fort Ross-Seaview AVA.

The petitioner also shows that the exclusion of the Annapolis region from the Fort Ross-Seaview AVA does not preclude the two regions from being included in a larger, regional AVA. He states that including the Annapolis region in the Fort Ross-Seaview AVA in T.D. TTB-98 would not have been appropriate because the primary feature of the Fort Ross-Seaview AVA was a location that was generally above the fog line. The Annapolis region did not meet this criteria, nor did the name “Fort Ross-Seaview” apply to the Annapolis region. He states that, for these reasons, the Annapolis region did not belong in the Fort Ross-Seaview AVA. However, including both regions in a larger coastal AVA that also includes other coastal regions of Sonoma County would be appropriate because the regions all share the broad characteristics of the proposed West Sonoma Coast AVA, such as sedimentary soils, a marine-influenced climate, and steep coastal ridges.

After reviewing the petition and the comments, TTB does not believe that including the Fort Ross-Seaview AVA within the proposed West Sonoma Coast AVA would be inconsistent with the findings of T.D. TTB-98, which established the Fort Ross-Seaview AVA. TTB believes it is appropriate to include the Fort Ross-Seaview AVA within the proposed West Sonoma Coast AVA, as the Fort Ross-Seaview AVA shares the mountainous topography and marine-influenced climate of the surrounding regions. T.D. TTB-98 describes the Fort Ross-Seaview AVA as having steep, mountainous terrain, soils derived from sedimentary rock, and temperatures that are moderated by the convection and conduction of fog from the Pacific Ocean. These distinguishing features are similar to the proposed West Sonoma Coast AVA, which is described in TTB Notice No. 177 as containing steep, rugged mountains and ridgelines, soils derived from the sedimentary rock of the Franciscan Complex, and a climate influenced by the cold marine air and heavy marine fog from the Pacific Ocean. Further, while Comment 51 notes the Fort Ross-Seaview AVA is distinguished by elevations that are generally above the fog line, T.D. TTB-98 does show that vineyards in the AVA benefit from being near the fog line. T.D. TTB-98 states that the Fort-Ross Seaview AVA is “in the heaviest fog intrusion area,” and the vineyards still receive “some cooling via conduction due to the close proximity of the fog layer.” Last, while Comment 51 asserts rainfall amounts in the Fort Ross-Seaview AVA may differ from those in the rest of the proposed West Sonoma Coast AVA, TTB notes that rainfall amounts were not determined to be a distinguishing feature of either the proposed West Sonoma Coast AVA, as described in Notice No. 177, or the Fort Ross-Seaview AVA, as described in T.D. TTB-98.

TTB also disagrees that including the Fort Ross-Seaview AVA within a larger AVA would create a “new hybrid type of AVA,” as asserted in comment 51. TTB regulations allow for the creation of smaller AVAs within larger AVAs, as well as the creation of larger AVAs that encompass one or more smaller AVAs. TTB and its predecessor agency, ATF, have both established numerous AVAs that are within or contain other AVAs, and TTB believes that consumers and industry members generally understand and accept the concept of these so-called “nested” AVAs. TTB notes that the Fort Ross-Seaview AVA is already within the established Sonoma Coast AVA and the North Coast AVA. Also, as discussed above, TTB notes the examples of the Arroyo Seco, Sta. Rita Hills, Red Mountain, Yakima Valley, and Eola-Amity Hills AVAs, which are all located within other larger established AVAs.

TTB also does not believe that either the decision to exclude the Annapolis region from the Fort Ross-Seaview AVA in T.D. TTB-98 or the previous attempt to establish a Freestone-Occidental AVA means that the two regions are too dissimilar to be included along with the Fort Ross-Seaview AVA in a single new West Sonoma Coast AVA. As stated in comment 67, the Fort Ross-Seaview AVA encompasses a very localized microclimate within the larger established Sonoma Coast and North Coast AVAs. The characteristics of the Annapolis region were determined to be too distinctive to be a part of the same limited Fort Ross-Seaview AVA microclimate. Additionally, TTB found that the “Fort Ross-Seaview” name did not apply to the Annapolis region. However, the proposed West Sonoma Coast AVA represents the more regional microclimate found throughout the extreme coastal regions of Sonoma County. Although the Freestone-Occidental and Annapolis regions and the Fort Ross-Seaview AVA each have some unique features, they all share the characteristics of this larger regional microclimate.

Comment 51 states that the Fort Ross-Seaview AVA should not be included in the proposed West Sonoma Coast AVA because “the smaller Fort Ross-Seaview AVA has name recognition that clearly distinguishes it” from the proposed AVA. The comment also asserts that the proposed West Sonoma Coast AVA petition did not state or explain “why the name West Sonoma Coast is applicable or appropriate for the existing approved Fort Ross-Seaview AVA which * * * has not itself even been known as the West Sonoma Coast AVA.” The comment included multiple images of wine bottles bearing “Fort Ross-Seaview” as an appellation of origin, as well as links to images and maps depicting the Fort Ross-Seaview AVA. The comment also notes that the Fort Ross-Seaview AVA has its own page on the Sonoma County Tourism Bureau website  40 and is identified “as a prominent and clearly delimited AVA” on a map of Sonoma County AVAs on the Sonoma County Winegrowers Association website. 41 Finally, comment 51 states that there have been “a number of education and promotional seminars” exclusively about the Fort Ross-Seaview AVA, including two separate seminars entitled “Pinot” and “Diamonds in the Sky,” which were both held in 2016. The commenter suggests that these seminars further demonstrate that the Fort Ross-Seaview AVA is recognized independently of the proposed West Sonoma Coast AVA.

Comment 67, submitted by the petitioner, was the only supporting comment to address the applicability of the proposed West Sonoma Coast AVA name to the Fort Ross-Seaview AVA. The petitioner notes that several vineyards and wineries within the Fort Ross-Seaview also identify themselves as being in a region known as “West Sonoma Coast.” For example, the Hirsch Vineyards website states, “The Fort Ross-Seaview AVA was granted official status in 2012, although the oldest plantings, including Hirsch, date from the 1970s, making it the oldest grape-growing region on the West Sonoma Coast.”  42 The Red Car Wines website states, “The coastal ridgetop vineyards in the West Sonoma Coast are situated in one of the most dramatically beautiful places in California.”  43

Comment 67 also states that several wineries and vineyards within the Fort Ross-Seaview AVA are members of the West Sonoma Coast Vintners, indicating that they also choose to associate their businesses with the region known as “West Sonoma Coast.” Members include Failla Wines, Flowers Winery & Vineyards, Hirsch Vineyards, Red Car Wines, and Wayfarer. Comment 67 also notes that Fort Ross Vineyards was a member of the association until 2018. Finally, the comment notes that the 2018 West of the West Festival, which celebrates wines from the West Sonoma Coast region, featured wines from Failla Wines, Flowers Vineyards & Winery, Fort Ross Vineyards, Hirsch Vineyards, Red Car Wines, and Wayfarer, which are all located within the Fort Ross-Seaview AVA. The petitioner therefore illustrates the “West Sonoma Coast” name includes wineries and vineyards within the Fort Ross-Seaview AVA. However, he continues by saying, “Given the widespread usage of the name Fort Ross-Seaview AVA, as presented by Mr. Schwartz and Mr. Schoenfeld [in comment 51], there should be little concern that the West Sonoma Coast AVA would have any impact on the recognition of Fort Ross-Seaview as a place of wine origin.”

After reviewing the comments, TTB agrees that there is widespread recognition of the Fort Ross-Seaview AVA name. However, TTB also believes the petition and the additional information provided by petitioner in comment 67 demonstrate there is sufficient evidence that the Fort Ross-Seaview AVA is considered to be within a larger region known as the “West Sonoma Coast.” Therefore, TTB does not believe it would be misleading or inappropriate to allow winemakers in the Fort Ross-Seaview AVA the option of labeling and marketing their wines using “West Sonoma Coast” as an appellation of origin.

TTB notes that establishment of the proposed West Sonoma Coast AVA would not prevent any label holder from using “Fort Ross-Seaview” as an appellation of origin on their wines, nor would they be required to use “West Sonoma Coast” as an appellation of origin. However, winemakers in the Fort Ross-Seaview AVA would have the option of using the West Sonoma Coast AVA name on their labels and marketing material, just as they currently have the option to use “Sonoma Coast” or “North Coast.” Additionally, wine makers and grape growers within the Fort Ross-Seaview AVA could continue to have a separate association for its industry members, as well as have separate festivals, seminars, and promotional events related to the Fort Ross-Seaview AVA.

After careful review of the petition and the comments received in response to Notice No. 177, TTB finds that the evidence provided by the petitioner supports the establishment of the West Sonoma Coast AVA. Notwithstanding the arguments of those who oppose the AVA, the petitioners' request for approval of the proposed West Sonoma Coast AVA satisfied all of the regulatory criteria needed for the approval of a new AVA. Accordingly, under the authority of the FAA Act, section 1111(d) of the Homeland Security Act of 2002, and parts 4 and 9 of the TTB regulations, TTB establishes the “West Sonoma Coast” AVA in Sonoma County, California, effective 30 days from the publication date of this document.

TTB has also determined that the West Sonoma Coast AVA will remain part of the established Sonoma Coast AVA and North Coast AVA. As discussed in Notice No. 177, the West Sonoma Coast AVA shares some broad characteristics with the both established AVAs. For example, all three AVAs have temperatures that are moderated by marine air and fog. However, the West Sonoma Coast AVA is located within the portion of Sonoma County that experiences the highest degree of maritime influence. Additionally, because it is a smaller region, the West Sonoma Coast AVA is more uniform in its soils and topography than both the larger Sonoma Coast AVA and the multi-county North Coast AVA.

Finally, TTB has determined that the Fort Ross-Seaview AVA will remain a part of the West Sonoma Coast AVA because the two AVAs share a similar geology, topography, and maritime-influenced climate. The Fort Ross-Seaview AVA is still distinguishable from the West Sonoma Coast AVA because its elevations are primarily above the fog line, whereas the West Sonoma Coast AVA also contains elevations within and below the fog line. However, the Fort Ross-Seaview AVA still benefits from the cooling influence of the marine fog and breezes, as does the West Sonoma Coast AVA.

See the narrative description of the boundary of the West Sonoma Coast AVA in the regulatory text published at the end of this final rule.

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

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

With the establishment of this AVA, its name, “West Sonoma Coast” will be recognized as a name of viticultural significance under § 4.39(i)(3) of the TTB regulations (27 CFR 4.39(i)(3)). The text of the regulation clarifies this point. Consequently, wine bottlers using the name “West Sonoma Coast” in a brand name, including a trademark, or in another label reference as to the origin of the wine, will have to ensure that the product is eligible to use the AVA name as an appellation of origin. TTB notes that the term “Sonoma Coast” already has viticultural significance as it is the name of an established AVA. However, because the West Sonoma Coast AVA is located within the Sonoma Coast AVA, the establishment of this new AVA will have no effect on the use of the term “Sonoma Coast” on wine labels.

The establishment of the West Sonoma Coast AVA will not affect any existing AVA, and any bottlers using “North Coast,” “Sonoma Coast,” or “Fort Ross-Seaview” as an appellation of origin or in a brand name for wines made from grapes grown within these AVAs will not be affected by the establishment of this new AVA. The establishment of the West Sonoma Coast AVA will allow vintners to use “West Sonoma Coast,” “Sonoma Coast,” and “North Coast” as appellations of origin for wines made primarily from grapes grown within the West Sonoma Coast AVA if the wines meet the eligibility requirements for the appellation. Additionally, any bottlers using “Fort Ross-Seaview” as an appellation of origin for wines made primarily from grapes grown in the Fort Ross-Seaview AVA will be able to use “Fort Ross-Seaview,” “Sonoma Coast,” “North Coast,” and “West Sonoma Coast” as appellations of origin of their wines.

Bottlers who wish to label their wines with “West Sonoma Coast” as an appellation of origin must obtain a new Certificate of Label Approval (COLA) for the label, even if the currently approved label already contains another AVA appellation of origin. Please do not submit COLA requests to TTB before the date shown in the DATES section of this document or your request will be rejected.

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

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

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

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

I. Background, Purpose and Legal Basis

The purpose of the deviation is to test the seasonal operating regulation of the US Route 543 (Riverside-Delanco) Bridge across Rancocas Creek, mile 1.3, at Burlington County, NJ. The US 543 (Riverside-Delanco) Bridge across Rancocas Creek, mile 1.3, at Burlington County, NJ, has a vertical clearance of 4 feet above mean high water in the closed-to-navigation position. The bridge currently operates under 33 CFR 117.745(b).

The Burlington County Bridge Commission who owns and operates the bridge has requested this change in the operation schedule to reduce the number of bridge openings during off-peak hours, while providing for the reasonable needs of navigation. The Rancocas Creek is used predominately by recreational vessels and pleasure crafts.

The bridge will be maintained in the closed-to-navigation position from 7 a.m. to 3 p.m., and from 8 p.m. to 11 p.m., Monday through Friday, from 7 a.m. to 1 p.m., and from 8 p.m. to 11 p.m., Saturday and Sunday, and from 11 p.m. to 7 a.m., daily, from May 4, 2022, through October 15, 2022.

The three-year, monthly average number of bridge openings from 7 a.m. to 3 p.m., Monday through Friday, 7 a.m. to 1 p.m., Saturday and Sunday, and from 8 p.m. to 11 p.m., daily, as drawn from the data contained in the bridge tender logs, is presented below.

Vessels able to pass through the bridge in the closed-to-navigation position may do so at any time. The bridge will be able to open in case of an emergency and there is no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the test deviation.

In accordance with 33 CFR 117.35(e), the drawbridge must return to normal operation at the end of the effective period of this test deviation. This deviation is authorized under 33 CFR 117.35.

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

We encourage you to submit comments through the Federal Decision Making Portal at https://www.regulations.gov. To do so, go to https://www.regulations.gov, type USCG-2022-0221 in the search box and click “Search.” Next, look for this document in the Search Results column, and click on it. Then click on the Comment option. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

To view documents mentioned in this proposed rule as being available in the docket, find the docket as described in the previous paragraph, and then select “Supporting & Related Material” in the Document Type column. Public comments will also be placed in our online docket and can be viewed by following instructions on the https://www.regulations.gov Frequently Asked Questions web page. We review all comments received, but we will only post comments that address the topic of the proposed rule. We may choose not to post off-topic, inappropriate, or duplicate comments that we receive.

We accept anonymous comments. Comments we post to http://www.regulations.gov will include any personal information you have provided. For more about privacy and submissions in response to this document, see DHS's eRulemaking System of Records notice (85 FR 14226, March 11, 2020).

I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port Sector Lower 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. Immediate action is needed to protect persons and property from the potential safety hazards associated with the rock replacement project. The NPRM process would delay the establishment of the safety zone until after the date of the event and compromise public safety. We must establish this temporary safety zone immediately and lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule.

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

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 Lower Mississippi River (COTP) has determined that potential hazards associated with the rock replacement project would be a safety concern for all persons and vessels on the Lower Mississippi River between MM 805 and MM 810 in the vicinity of Barfield Bend, TN. This rule is needed to protect persons, property, infrastructure, and the marine environment in all waters of the LMR within the safety zone while the rock replacement project are being conducted.

This rule establishes a temporary safety zone from May 13, 2022 through June 15, 2022. The safety zone will cover all navigable waters of the LMR from MM 805 through MM 810 in the vicinity of Barfield Bend, TN. The duration of this safety zone is intended to ensure the safety of waterway users on these navigable waters during the rock replacement project.

Entry of persons or vessels into this safety zone is prohibited unless authorized by the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard assigned to units under the operational control of USCG Sector Lower Mississippi River. Persons or vessels seeking to enter the safety zones must request permission from the COTP or a designated representative on VHF-FM channel 16 or by telephone at 901-521-4822. If permission is granted, all persons and vessels shall comply with the instructions of the COTP or designated representative. The COTP or a designated representative will inform the public of the enforcement times and date for this safety zone through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and/or Marine Safety Information Bulletins (MSIBs), as appropriate.

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

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

This regulatory action determination is based on the size, location, and duration of the safety zone. This emergency safety zone will temporarily restrict navigation on the LMR at MM 805 through 810 in the vicinity of Barfield Bend, TN., from May 13, 2022 through June 15, 2022. Moreover, The Coast Guard will issue Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and/or Marine Safety Information Bulletins (MSIBs), as appropriate. The rule allows vessels to seek permission to enter the zone.

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

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

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

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call1-888-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 temporary safety zone on the LMR at MM 805 through 810 in the vicinity of Barfield Bend, TN, that will prohibit entry into this zone. The safety zone will only be enforced while operations preclude the safe navigation of the established channel. It is categorically excluded from further review under paragraph L60(a) 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. Summary of This Action

Section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(3)(B), provides that, when an agency for good cause finds that notice and public procedures are impracticable, unnecessary, or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. The EPA has determined that for this action, there is good cause for making these technical corrections final without a prior proposal and the opportunity for comment because the Agency is correcting minor errors that do not substantially change the Agency's action taken in each of the three final rules discussed. These technical corrections will ensure that the regulatory text agrees with the description of the rule that the EPA provided in the final rule preamble for each of the three rules discussed in this action. Thus, notice and comment public procedures are unnecessary. The Agency finds that this constitutes a good cause under 5 U.S.C. 553(b)(3)(B). See also the final sentence of section 307(d)(1) of the Clean Air Act (CAA), 42 U.S.C. 307(d)(1), indicating that the good cause provisions in subsection 553(b) of the APA continue to apply to this type of rulemaking under section 307(d) of the CAA.

On the November 19, 2021, the EPA finalized amendments to multiple NESHAPs. The first rule finalized the Refractory Products Manufacturing Residual Risk and Technology Review (86 FR 66045). The second rule finalized the Carbon Black Production (major sources) and Cyanide Chemical Manufacturing Residual Risk and Technology Reviews and the Carbon Black Production Area Source Technology Review (86 FR 66096). Both actions incorporated by reference three different test methods: ASTM D4282-15, Standard Test Method for Determination of Free Cyanide in Water and Wastewater by Microdiffusion, approved July 15, 2015; ASTM D6784-16; Standard Test Method for Elemental, Oxidized, Particle-Bound and Total Mercury in Flue Gas Generated from Coal-Fired Stationary Sources (Ontario Hydro Method), approved March 1, 2016; and ASTM D7237-18, Standard Test Method for Free Cyanide and Aquatic Free Cyanide with Flow Injection Analysis (FIA) Utilizing Gas Diffusion Separation and Amperometric Detection, approved December 1, 2018. This was the first time these test methods were incorporated by reference under the Code of Federal Regulations (CFR). Because the methods were incorporated by reference for the first time and the final rules published on the same date, there was an error in alphanumerically ordering the test methods in 40 CFR 63.14. The ordering and instructions of the standards in the centralized IBR section were incorrect. Thus, the redesignations and additions of the standards were unable to be published in the CFR. Therefore, the EPA finds good cause to make the correction in this direct final action.

This action will have no cost, environmental, energy, or economic impacts beyond those impacts presented in the NESHAPs for Refractory Products Manufacturing Residual Risk and Technology Review (86 FR 66045), Carbon Black Production (major sources) and Cyanide Chemicals Manufacturing Residual Risk and Technology Reviews and Carbon Black Production Area Source Technology Review (86 FR 66096) published on November 19, 2021. These technical corrections are cost neutral.

For the reasons set out in the preamble, 40 CFR part 63 is corrected as follows:

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Office of the Federal Register's e-CFR site at https://www.ecfr.gov/current/title-40.

Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2020-0728 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before July 22, 2022. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2020-0728, by one of the following methods:

• Federal eRulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/ DC), (28221T), 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at https://www.epa.gov/dockets/contacts.html. Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at https://www.epa.gov/dockets.

In the Federal Register of June 1, 2021 (86 FR 29229) (FRL-10023-95), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 0F8838) by Valent U.S.A. LLC, 1600 Riviera Avenue, Suite 200 Walnut Creek, CA 94596 U.S.A. The petition requested that 40 CFR part 180 be amended by establishing tolerances for indirect or inadvertent residues of the fungicide Fluopicolide, 2,6-dichloro- N -[[3-chloro-5-(trifluoromethyl)-2-pyridyl]methyl]-benzamide, in or on Cereal grains (crop group 15), aspirated grain fractions at 0.07 parts per million (ppm); Cereal grains (crop group 15), grain at 0.02 ppm; Cereal grains (crop group 15), milled byproducts at 0.07 ppm; Cotton gin byproducts at 0.20 ppm; Foliage of legume vegetables (crop group 7), forage at 0.15 ppm; Foliage of legume vegetables (crop group 7), hay, straw, and vines at 0.20 ppm; Forage, fodder and straw of cereal grains (crop group 16) at 0.50 ppm; Grass forage, fodder, and hay (crop group 17) at 0.50 ppm; Legume vegetables (crop group 6), seed, pea, bean (succulent or dried, except listed beans) at 0.03 ppm; Nongrass animal feeds (crop group 18), forage, fodder, straw and hay at 0.50 ppm; Oilseeds (crop group 20), seed at 0.04 ppm; Oilseeds (crop group 20), refined oil at 0.10 ppm; Peanut nutmeat at 0.04 ppm; Peanut hay at 0.60 ppm; Peanut, refined oil at 0.10 ppm; and Soybean, refined oil at 0.08 ppm. That document referenced a summary of the petition prepared by Valent U.S.A. LLC, the registrant, which is available in the docket, EPA-HQ-OPP-2020-0728, https://www.regulations.gov. There were no comments received in response to the notice of filing.

Based upon review of the data supporting the petition, EPA has revised commodity definitions and is establishing several tolerances at different levels than petitioned-for. The reasons for these changes are explained in Unit IV.C.

Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . . .”

Consistent with FFDCA section 408(b)(2)(D), and the factors specified therein, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for fluopicolide including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with fluopicolide follows.

In an effort to streamline its publications in the Federal Register , EPA is not reprinting sections of the rule that would repeat what has been previously published in tolerance rulemakings for the same pesticide chemical. Where scientific information concerning a particular pesticide chemical remains unchanged, the content of those sections would not vary between tolerance rulemakings, and EPA considers referral back to those sections as sufficient to provide an explanation of the information EPA considered in making its safety determination for the new rulemaking.

EPA has previously published a number of tolerance rulemakings for fluopicolide, in which EPA concluded, based on the available information, that there is a reasonable certainty that no harm would result from aggregate exposure to fluopicolide and established tolerances for residues of that chemical. EPA is incorporating previously published sections from those rulemakings as described further in this rulemaking, as they remain unchanged.

Toxicological profile. For a discussion of the Toxicological Profile of fluopicolide and one of its metabolites, 2,6-dichlorobenzamide (BAM), see Unit III.A. of the previous tolerance rulemaking for fluopicolide published in the Federal Register of March 7, 2018 (83 FR 9703) (FRL-9973-44). Since the March 7, 2018, rulemaking, an additional oral toxicity study that included evaluation of the olfactory system was submitted for BAM, and the results have been incorporated into the current risk assessment. Toxicity to the olfactory sensory neurons was observed following a single intraperitoneal exposure of mice to BAM, as were clinical signs of toxicity (slightly decreased muscle tone, slight loss of pinnae reflexes) following oral exposure in several short-term assays. In the newly submitted oral toxicity study in rats, ataxia was observed in males; however, there were no effects on the olfactory system.

Toxicological points of departure/Levels of concern. For a summary of the Toxicological Points of Departure/Levels of Concern for both fluopicolide and BAM used for the risk assessment, see Unit III.B. of the March 7, 2018, rulemaking. The only change is for BAM, where the current risk assessment reports the no-observed adverse-effect concentration (NOAEC) as 12.1 mg/m 3 for Inhalation Short- and Intermediate-Term (1-30 days and 1-6 months). The previous rulemaking reported this point of departure as a no-observed adverse-effect level (NOAEL) rather than a NOAEC, but the value remains the same.

Exposure assessment. Much of the exposure assessment remains the same, although the dietary exposure and risk assessments for fluopicolide and BAM were updated to account for exposures from the petitioned-for tolerances. These updates are discussed in this section; for a description of the rest of EPA's approach to and assumptions for the exposure assessment, including with respect to drinking water, non-occupational, and cumulative exposures, see Unit III.C. of the March 7, 2018, rulemaking.

EPA's dietary exposure assessments have been updated to include the additional exposures for the new tolerances for indirect or inadvertent residues of fluopicolide in the commodities identified in this action that are necessary to support revised rotational crop restrictions. There are no new use sites proposed. In addition, the dietary exposure assessments were revised to reflect the updated Dietary Exposure Evaluation Model that incorporates the What We Eat in America (WWEIA) consumption data from 2005-2010.

Fluopicolide acute dietary exposure and risk assessments are not required because an endpoint attributable to a single dose has not been identified. This is the same as in the 2018 rulemaking. Fluopicolide chronic dietary exposure used the same assumptions as the 2018 rulemaking concerning tolerance level residues or maximum field trial residues, 100 percent crop treated (PCT), default processing factors, and modeled drinking water estimates.

For BAM, the acute and chronic dietary exposure assessments assumed the maximum BAM residues from field trial data for either fluopicolide or dichlobenil (another active ingredient for which BAM is a metabolite), which is the same as in the 2018 rulemaking. The current acute and chronic dietary assessments were updated to assume 100 PCT, default processing factors, and high-end estimates of fluopicolide in drinking water.

Cancer. Fluopicolide has been classified as “not likely to be carcinogenic to humans.”

Therefore, a cancer dietary exposure assessment was not conducted for the parent fluopicolide. Additionally, EPA has determined BAM's potential for carcinogenicity is similar to that of dichlobenil, which is classified as “group C, possible human carcinogen.” Quantification of cancer risk is based on the reference dose (RfD) approach which requires comparison of the chronic exposure to the RfD. Using this methodology will adequately account for all chronic toxic effects, including carcinogenicity, likely to result from exposure to BAM. Hence, a separate cancer exposure assessment to BAM was not conducted.

Anticipated residue information. Section 408(b)(2)(E) of FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticides in or on food and the actual residue levels of pesticides that have been measured in food. If EPA relies on such information, EPA must require pursuant to FFDCA section 408(f)(1) that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the residue levels in food are not above the levels anticipated. For the present action, EPA will issue such data call-ins as are required by FFDCA section 408(b)(2)(E) and authorized under FFDCA section 408(f)(1). Data will be required to be submitted no later than 5 years from the date of issuance of these tolerances.

Safety factor for infants and children. EPA continues to conclude that there are reliable data to support the reduction of the Food Quality Protection Act (FQPA) safety factor to 1X for fluopicolide. For BAM, EPA continues to retain the FQPA safety factor of 10X for the acute dietary exposure scenario for the general population to account for the use of a lowest-observed-adverse-effect-level (LOAEL) to extrapolate to a NOAEL. For all other exposure scenarios, EPA continues to conclude that there are reliable data to support the reduction of the FQPA safety factor to 1X. See Unit III.D. of the March 7, 2018, rulemaking for a discussion of the Agency's rationale for these determinations.

Aggregate risks and determination of safety. EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing dietary exposure estimates to the acute population-adjusted dose (aPAD) and the chronic population-adjusted dose (cPAD). Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate points of departure to ensure that an adequate margin of exposure (MOE) exists. For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure.

An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. There were no endpoints attributable to a single dose identified in the hazard database and an acute dietary endpoint was not selected for fluopicolide. Therefore, fluopicolide is not expected to pose an acute risk.

For BAM, acute dietary risks are below the Agency's level of concern of 100% of the aPAD; they are 45% of the aPAD for infants less than 1 year old, which is the population subgroup with the highest exposure estimate. The acute aggregate risk estimates for BAM are equal to acute dietary (food and drinking water) risk estimates and therefore are not of concern. For fluopicolide, chronic dietary risks are below the Agency's level of concern of 100% of the cPAD; they are 15% of the cPAD for children 1-2 years old, which is the population subgroup with the highest exposure estimate.

For BAM, the chronic dietary risks are also below the Agency's level of concern; they are 40% of the cPAD for infants less than 1 year old, which is the population subgroup with the highest exposure estimate. As stated in the March 7, 2018, rulemaking, chronic residential exposure to residues of fluopicolide or BAM is not expected, so chronic aggregate risks are equal to chronic dietary risks and are not of concern.

Short-term aggregate risk estimates are equal to the most conservative residential exposure estimates plus chronic dietary exposure estimates (considered to be background dietary exposure). For adults and children 6 to <11 years old, the post-application dermal exposures from gardens treated with fluopicolide represent the most conservative residential exposure estimate. For children 1-2 years old, the most conservative residential exposure estimate is combined dermal and incidental oral exposure through high contact lawn activity. EPA has concluded the short-term aggregate MOEs are 500, 670, and 480 for adults, children 6 to <11 and children 1-2 years old, respectively, which are above the level of concern of 100 and therefore are not of concern. For BAM, dermal and inhalation exposures may not be combined with oral exposures due to different toxicological effects used as the basis of the selected endpoints. As a result, the aggregate risk estimates are equivalent to the dietary risk estimates and are not of concern.

Due to the absence of treatment-related tumors in two adequate rodent carcinogenicity studies, fluopicolide is classified as “not likely to be carcinogenic to humans”; therefore, a quantitative cancer assessment is not required.

EPA has assumed BAM's potential for carcinogenicity is similar to that of dichlobenil, which is classified as “group C, possible human carcinogen.” Quantification of cancer risk is based on the RfD approach which requires comparison of the chronic exposure to the RfD. Therefore, the chronic aggregate risk estimates, which do not trigger concerns based on exposures associated with the registered uses, are considered protective of both non-cancer and cancer effects.

Therefore, based on the risk assessments and information described above, EPA concludes there is a reasonable certainty that no harm will result to the general population, or to infants and children, from aggregate exposure to fluopicolide residues, including its metabolite. More detailed information on this action to establish indirect or inadvertent tolerances in or on multiple commodities can be found in the document entitled, “Fluopicolide. Human Health Risk Assessment to Support a Petition to Establish Tolerances for Indirect or Inadvertent Residues in/on Legume Vegetables, Cereal Grains, Grasses, Nongrass Animal Feeds, Oilseeds, and Peanuts” at https:// www.regulations.gov, under docket ID number EPA-HQ-OPP-2020-0728.

For the analytical enforcement methodology for fluopicolide and BAM, see Unit IV.A. of the March 7, 2018, rulemaking.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level. The Codex has established MRLs for fluopicolide in or on straw and fodder (dry) of cereal grains at 0.2 ppm, which is the only Codex MRL for the commodities covered by this rulemaking. This MRL is different than the U.S. tolerance at 0.5 ppm that is being established for residues of fluopicolide in/on grain, cereal, forage, fodder, and straw, group 16. EPA cannot harmonize the U.S. tolerance for group 16 with the corresponding Codex MRL because it could put U.S. growers at risk of violative residues despite legal use of fluopicolide.

EPA is not establishing the petitioned-for tolerances on Oilseeds (crop group 20), refined oil at 0.10 ppm or Peanut, refined oil at 0.10 ppm because the Agency is establishing tolerances for the respective raw agricultural commodities, Oilseed group 20 at 0.03 ppm, and Peanut at 0.03 ppm, which are adequate to cover the refined oils.

EPA is establishing the tolerance level for Soybean, refined oil at 0.03 ppm, which is the level calculated by multiplying average residue by the processing factor. This tolerance level is lower than the petitioned-for tolerance level of 0.08 ppm. The petitioner did not provide a rationale for the petitioned-for tolerance level, so the reason for this difference is unclear.

Additionally, EPA is revising many of the commodity definitions for consistency with the Agency's preferred terminology for tolerances. EPA is also establishing several tolerances at different levels than petitioned-for to be consistent with Organization for Economic Cooperation and Development (OECD) rounding class practice. Specifically, EPA is:

• Revising “Nongrass animal feeds (crop group 18), forage, fodder, straw and hay” to “Animal feed, nongrass, group 18” and establishing the tolerance level at 0.5 ppm instead of the petitioned-for 0.50 ppm;

• Revising “Cereal grains (crop group 15), aspirated grain fractions” to “Grain, aspirated fractions” and establishing the tolerance level at 0.07 ppm;

• Revising “Cereal grains (crop group 15), grain” to “Grain, cereal, group 15” and establishing the tolerance level at 0.02 ppm;

• Revising “Cereal grains (crop Group 15), milled byproducts” to “Grain, cereal, group 15, milled byproducts” and establishing the tolerance level at 0.07 ppm;

• Establishing the tolerance level for “Cotton, gin byproducts” at 0.2 ppm instead of the petitioned-for 0.20 ppm;

• Revising “Forage, fodder and straw of cereal grains (crop group 16)” to “Grain, cereal, forage, fodder, and straw, group 16” and establishing the tolerance level at 0.5 ppm instead of the petitioned-for 0.50 ppm;

• Revising “Grass forage, fodder, and hay (crop group 17)” to “Grass forage, fodder and hay, group 17” and establishing the tolerance level at 0.5 ppm instead of the petitioned-for 0.50 ppm;

• Revising “Oilseeds (crop group 20), seed” to “Oilseed group 20” and establishing the tolerance level at 0.03 ppm instead of the petitioned-for 0.04 ppm;

• Revising “Peanut nutmeat” to “Peanut” and establishing the tolerance level at 0.03 ppm instead of the petitioned-for 0.04 ppm;

• Establishing the tolerance level for “Peanut, hay” at 0.7 ppm instead of the petitioned-for 0.60 ppm;

• Revising the petitioned-for tolerances for “Foliage of legume vegetables (crop group 7), forage” at 0.15 ppm and “Foliage of legume vegetables (crop group 7), hay, straw, and vines” at 0.20 ppm to “Vegetable, foliage of legume, group 7” at 0.2 ppm; and

• Revising “Legume vegetables (crop group 6), seed, pea, bean (succulent or dried, except listed beans)” to “Vegetable, legume, group 6” and establishing the tolerance level at 0.02 ppm instead of the petitioned-for 0.03 ppm.

• In addition, EPA is removing the existing tolerances for indirect or inadvertent residues in 40 CFR 180.627(d) because these commodities are included in the groups 15 and 16 tolerances that the Agency is establishing in this action. For example, the commodities “corn, field, grain” (with an existing tolerance level of 0.01 ppm) and “wheat, grain” (with an existing tolerance level of 0.02 ppm) are included in the new tolerance for indirect or inadvertent residues in “grain, cereal, group 15” at 0.02 ppm. The new tolerances are equal to or higher than the existing tolerances and are therefore adequate to cover indirect or inadvertent residues on these commodities.

Therefore, tolerances are established for indirect or inadvertent residues of Fluopicolide, [2,6-dichloro- N -[[3-chloro-5-(trifluoromethyl)-2-pyridinyl]methyl]benzamide], including its metabolites and degradates, in or on Animal feed, nongrass, group 18 at 0.5 ppm; Cotton, gin byproducts at 0.2 ppm; Grain, aspirated fractions at 0.07 ppm; Grain, cereal, group 15 at 0.02 ppm; Grain, cereal, group 15, milled byproducts at 0.07 ppm; Grain, cereal, forage, fodder, and straw, group 16 at 0.5 ppm; Grass, forage, fodder and hay, group 17 at 0.5 ppm; Oilseed group 20 at 0.03 ppm; Peanut at 0.03 ppm; Peanut, hay at 0.7 ppm; Soybean, refined oil at 0.03 ppm; Vegetable, foliage of legume, group 7 at 0.2 ppm; and Vegetable, legume, group 6 at 0.02 ppm.

Upon establishment of the aforementioned tolerances, the established tolerances for indirect or inadvertent residues of fluopicolide in 40 CFR 180.627(d) will be removed, as they are superseded by the new tolerances.

This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq. ), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerances in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), do not apply.

This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq. ).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, for the reasons stated in the preamble, 40 CFR chapter I is amended as follows:

The South Atlantic snapper-grouper fishery includes red snapper and is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The South Atlantic Fishery Management Council (Council) prepared the FMP, and the FMP is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

For South Atlantic red snapper, the commercial AM requires the sector to close when commercial landings reach or are projected to reach the commercial ACL. The recreational AM is the length of the recreational season, with NMFS projecting the season length based on catch rate estimates from previous years.

The commercial ACL is 124,815 lb (56,615 kg), round weight, and in 2021, NMFS closed the commercial sector on September 14 as a result of the commercial ACL being projected to be met (86 FR 50861; September 13, 2021). Subsequent to the commercial closure NMFS determined that the commercial ACL had not been met and reopened the commercial sector for 4 days beginning on November 2, 2021 (86 FR 60373; November 2, 2021). After the commercial 4-day reopening it was determined that in 2021 the commercial ACL was exceeded by 3,305 lb (1,499 kg), round weight. The recreational ACL is 29,656 fish, and preliminary landings information show this ACL was exceeded in the 2021 3-day fishing season by 9,413 fish. For 2022, NMFS has determined that recreational landings are expected to reach the recreational ACL in a 2-day season.

The commercial season for South Atlantic red snapper begins each year on the second Monday in July and closes when the commercial ACL is reached or is projected to be reached. Accordingly, the 2022 commercial season opens on July 11, 2022, and will remain open until 12:01 a.m., local time, on January 1, 2023, unless the commercial ACL is reached or projected to be reached prior to this date. During the commercial fishing season, the commercial trip limit is 75 lb (34 kg), gutted weight. NMFS will monitor commercial landings during the open season, and if commercial landings reach or are projected to reach the commercial ACL, then NMFS will file a notification with the Office of the Federal Register to close the commercial sector for red snapper for the remainder of the fishing year.

The recreational season for South Atlantic red snapper begins on the second Friday in July. Accordingly, the 2022 recreational red snapper season opens at 12:01 a.m., local time, on July 8, 2022, and closes at 12:01 a.m., local time, on July 10, 2022. During the recreational season, the recreational bag limit is one red snapper per person, per day. After the closure of the recreational sector, the bag and possession limits for red snapper are zero.

There is not a red snapper minimum or maximum size limit for the commercial and recreational sectors during the open seasons.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR 622.183(b)(5)(i) and 622.193(y), which were issued pursuant to section 304(b), and is exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be unnecessary and contrary to the public interest. Such procedures are unnecessary because the rule establishing the red snapper ACLs and AMs has already been subject to notice and comment, and all that remains is to notify the public of the respective commercial and recreational fishing seasons. In addition, providing prior notice and an opportunity for public comment is contrary to the public interest because the seasons begin in early July and announcing the length of the fishing seasons now allows each sector to prepare for the upcoming harvest, provides opportunity to for-hire fishing vessels to book trips that could increase their revenues and profits, and gives the South Atlantic states the time needed to prepare for their respective data collection needs for the season.

For the aforementioned reasons, there is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in the effectiveness of this action.