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 the 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 modifies the Miami, FL, Class B airspace area to improve the flow of air traffic and enhance safety within the National Airspace System (NAS).

The FAA published a notice of proposed rulemaking for Docket No. FAA-2020-0490 in the Federal Register (86 FR 12868; March 5, 2021), modifying the Miami, FL, Class B airspace area. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal. Two comments were received in response to the NPRM. All comments received were considered before making a determination on the final rule.

Class B airspace designations are published in paragraph 3000 of FAA Order JO 7400.11F, dated August 10, 2021 and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The Class B airspace designations listed in this document will be subsequently published in FAA Order JO 7400.11.

An anonymous commenter wrote in support of the proposed Class B modifications. The Aircraft Owners and Pilots Association (AOPA) expressed four concerns about the proposal as discussed below.

First, AOPA acknowledged FAA's action to improve the availability of Visual Flight Rules (VFR) flight following in the MIA area, but stated that recent feedback from members indicated that VFR flight following can still be difficult to obtain particularly as “FAA has indicated they are not able to provide a VFR corridor through this airspace.”

The current coronavirus (COVID-19) pandemic has impacted air traffic controller training and staffing which, at times, has limited the services controllers can provide to VFR aircraft due to workload. Within Miami Terminal Radar Approach Control (TRACON), training is resuming and staffing is returning to normal levels which will assist in creating additional opportunities to obtain/provide services to VFR aircraft when airborne. As a suggestion, VFR pilots wishing to receive air traffic control (ATC) services are encouraged to consider obtaining a VFR discreet code from ATC prior to departure.

Second, AOPA stated that the ceiling of Class D airspace areas should be consistent with the floor of the overlying Class B or C airspace. AOPA cited cases where a gap exists between the 2,500-foot Class D ceiling and the 3,000-foot floor of the overlying MIA Class B airspace; and, in the case of Miami Executive Airport (TMB), a portion of the Class D ceiling overlaps Area C of the MIA Class B airspace.

The FAA does not agree. The MIA Class B airspace was designed to support current operations and the various altitude floors are configured to ensure the containment of MIA traffic within Class B airspace once they enter it. Lowering of the Class B floors to match the ceilings of underlying Class D airspace areas was not justified by Class B design criteria or any ATC requirement. With regard to TMB's airspace, the Aeronautical Information Manual (AIM) informs pilots that, when overlapping airspace designations apply to the same airspace, the operating rules associated with the more restrictive airspace designation apply.

Third, AOPA restated its preference for the establishment of a VFR corridor through the MIA Class B airspace but expressed satisfaction that the FAA is considering the development of a VFR transition route as an alternative.

The FAA considered a VFR corridor but determined it is not feasible with current MIA area air traffic operations. As described in the AIM, VFR corridors are, in effect, a “hole” through Class B airspace in which aircraft can operate without an ATC clearance or communication with ATC. Considering local constraints, including traffic volume and traffic flows, plus the close proximity of numerous airports in the MIA area, a VFR corridor could not be established for operational and flight safety reasons.

As an alternative, the FAA designed and implemented VFR Transition Routes which became effective beginning with the February 25, 2021, aeronautical charting cycle. The routes currently are depicted on the Miami VFR Terminal Area Chart (TAC), and the Miami/South Florida VFR Flyway Planning Chart. An ATC clearance is required to fly these routes. The charted notes identify the routes and provide frequencies and altitudes to expect. Operationally, although access to the transition routes is based on controller workload, it does provide more flexibility for both controllers and pilots.

Fourth, AOPA called for the formation of a new Ad Hoc Committee to evaluate the Class B airspace changes proposed in the NPRM due to the lapse in time from the original Ad Hoc Committee and complexities as the changes.

The FAA considered the request for a second Ad Hoc Committee. After studying the recommendations from the Committee, and the public comments from the Informal Airspace Meetings, the FAA made a number of changes to the Class B design and published an NPRM for additional public comment. The FAA believes that sufficient feedback was received to proceed with rulemaking, and therefore decided not to form a second Ad Hoc Committee.

In the regulatory text, the longitude coordinate for Miami Executive Airport (TMB) is changed from “080°25′59″ W” to “080°26′00″ W” to comply with decimal place rounding protocols.

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

This action amends 14 CFR part 71 by modifying the Miami International Airport, FL, (MIA) Class B airspace area. This action modifies the lateral and vertical limits of Class B airspace to ensure the containment of large turbine-powered aircraft at MIA in Class B airspace once they enter the airspace, and enhance safety in the Miami terminal area (see the attached chart).

The FAA is issuing a separate final rule to modify the Fort Lauderdale-Hollywood International Airport (FLL) Class C airspace area that is located immediately to the north of the MIA Class B airspace area.

The modifications to the MIA Class B airspace area are described below.

In the text header of the MIA Class B airspace description, (as published in FAA Order JO 7400.11F), the geographic coordinates for MIA are updated to read “lat. 25°47′43″ N, long. 080°17′24″ W”. The name of the “Kendall-Tamiami Executive Airport” is changed to its current name “Miami Executive Airport”, and its geographic coordinates are updated to read “lat. 25°38′51″ N, long. 080°26′00″ W”. These changes reflect the current National Airspace System Resources database information.

Area A. Area A continues to extend upward from the surface to 7,000 feet mean sea level (MSL). This rule modifies Area A by expanding the current 6 nautical mile (NM) radius to a 7 NM radius of the MIA International Airport. This resolves issues where aircraft exit and re-enter Class B airspace on final approach. Area A is also modified by excluding that airspace “South of lat. 25°42′18″ N (SW 72nd Street in the cities of Sunset and South Miami).” This moves the southern boundary of the surface area to the north of the Dadeland Shopping Center keeping it outside the surface area, and allowing VFR aircraft to have continued use of that charted VFR checkpoint for arrivals and departures out of the TMB area.

Area B. Area B extends from 1,500 feet MSL to 7,000 feet MSL. The FAA is modifying Area B by extending the current eastern boundary from the 10 NM radius of MIA out to the 13 NM radius of the airport. This change contains MIA arrivals within Class B airspace, and provides protection for VFR aircraft transitioning under the Class B airspace. Additionally, the western boundary of Area B is moved from the current 10 NM radius of MIA slightly westward to run along Krome Avenue, providing pilots with a visual reference for that boundary. To assist with visual identification of the northern boundary of Area B (along lat. 25°53′03″ N), the street reference “NW 103rd Street/49th Street in the City of Hialeah” is added to the description.

Area C. Area C extends from 2,000 feet MSL to 7,000 feet MSL. The only change to this area is extending the boundary formed by the existing 4.3 NM radius of TMB southwestward (counterclockwise) to intersect the western boundary of the new Area H ( i.e., the 13 NM radius of MIA), as described below.

Area D. Area D extends from 3,000 feet MSL to 7,000 feet MSL. Originally, the FAA proposed to expand Area D's western boundary from the current 20 NM radius west of MIA, further westward to the 25 NM radius of MIA. Based on comments received, the FAA decided to retain the western boundary of Area D at the current 20 NM radius of MIA. This rule establishes Area J (west of Area D, described below) between the 20 NM and 25 NM radii of MIA. Area J extends from 4,000 feet MSL to 7,000 feet MSL, providing additional altitudes for transiting aircraft. This rule also incorporates that airspace above TMB, that is currently designated “Area G,” into Area D. The existing Area G extends from 5,000 feet MSL to 7,000 feet MSL. Incorporating this airspace into Area D lowers the floor of Class B airspace in that area to 3,000 feet MSL. This change protects southbound departures from MIA during a west operation. The “Area G” designation is reused elsewhere in the MIA Class B as described later.

Area E. The only change to Area E is minor updates to the latitude/longitude coordinates that define the northeast side of the area for greater accuracy.

Area F. Area F extends from above 1,000 feet MSL to 7,000 feet MSL. The eastern boundary of Area F is extended from the current 6 NM radius of MIA out to the 7 NM radius of MIA. The south end of Area F is moved slightly northward to lat. 25°42′18″ N to align with the new southern boundary of Area A.

Area G. A new Area G is designated in that airspace west of Miami-Opa Locka Executive Airport that is currently designated Area H (the H designation is reused as described below). The northwestern boundary of the existing Area H is the 10 NM radius from MIA. In the new Area G, this boundary is expanded further to the northwest to align with State Road 997/Krome Avenue. The new Area G consists of that airspace extending upward from 2,000 feet MSL to and including 7,000 feet MSL, bounded on the South by lat. 25°52′03″ N (NW 103rd Street/49th Street in the City of Hialeah), on the west and northwest by State Road 997/Krome Ave, on the East by the Miami Canal (paralleling US 27), and the northern boundary point defined by the intersection of the Miami Canal and State Road 997/Krome Ave. Aligning boundaries with streets and other ground references assists pilots with visual identification of the boundaries.

Area H. Area H is a new area that extends from 2,000 feet MSL to 7,000 feet MSL. It is located directly west of the Area B western boundary. Area H is bounded on the east by State Road 997/Krome Avenue; on the south by the 4.3 NM radius of TMB (the northern boundary of Area C); and on the west by the 13 NM radius of MIA. Area H provides containment of MIA arrivals in Class B airspace. Its base altitude of 2,000 feet MSL, and the visual reference provided by Krome Avenue, allows VFR aircraft to transition just west of Krome Avenue below 2,000 feet MSL without conflicting with MIA arrivals.

Area I. Area I is a new area, located east of MIA between the 20 NM and 25 NM radii from the airport. Area I extends from 5,000 feet MSL to 7,000 feet MSL. Area I is bounded by that airspace beginning at the intersection of lat. 25°57′48″ N and the 20 NM radius of MIA, thence moving East along lat. 25°57′48″ N to the intersection of a 25 NM radius of MIA, thence moving clockwise along the 25 NM radius to the Dolphin VORTAC 151°(T)/155°(M) radial, thence Northwest along the Dolphin VORTAC 151°(T)/155°(M) radial to the intersection of a 20 NM radius of MIA, thence counter-clockwise along the 20 NM radius to the point of beginning. This expansion is needed to contain aircraft on the downwind leg within Class B airspace. The 5,000 foot MSL base altitude of Area I gives VFR aircraft transitioning the area over water the ability to fly under the Class B airspace.

Area J. Area J is a new area located west of MIA between the 20 NM and 25 NM radii from the airport. Area J extends from 4,000 feet MSL to 7,000 feet MSL. Area J is bounded by that airspace beginning northwest of MIA at the intersection of a 25 NM radius of Miami International Airport and lat. 25°57′48″ N, thence east along lat. 25°57′48″ N to the intersection of a 20 NM radius of Miami International Airport, thence counter-clockwise along the 20 NM radius to lat. 25°40′19″ N, thence west along lat. 25°40′19″ N to the intersection of a 25 NM radius of Miami International Airport, thence clockwise along the 25 NM radius to the point of beginning.

In summary, the existing MIA Class B airspace design does not currently address the rapidly increasing general aviation and air carrier operations in the South Florida terminal area. The Class B modification provides:

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

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. We have determined that there is no new information collection requirement associated with this final rule.

Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, this Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995).

This portion of the preamble summarizes the FAA's analysis of the economic impacts of this final rule.

In conducting these analyses, the FAA has determined that this final rule: (1) is expected to have a minimal cost impact, (2) is not an economically “significant regulatory action” as defined in section 3(f) of Executive Order 12866, (3) is not significant as defined in DOT's Regulatory Policies and Procedures; (4) will not have a significant economic impact on a substantial number of small entities; (5) will not create unnecessary obstacles to the foreign commerce of the United States; and (6) will not impose an unfunded mandate on state, local, or tribal governments, or on the private sector by exceeding the threshold identified above. These analyses are summarized below.

As discussed above, the FAA determined that changes put forth in this final rule would increase airspace safety and efficiency. The final rule would modify the lateral and vertical limits of Class B airspace around Miami International Airport (MIA) impacting commercial and general aviation flights transiting the airspace at the time of writing. The modification is in response to increased commercial and general aviation activity at and near MIA airport at the time of writing. Currently, MIA Class B airspace does not fully contain aircraft flying instrument procedures at MIA. Aircraft routinely exit and re-enter MIA Class B airspace on final approach to MIA leading to safety issues with respect to flight separation between participating and non-participating aircraft outside of Class B airspace.

The modifications proposed in this final rule are intended only to expand Class B airspace, where necessary, to contain large, turbine-powered aircraft while minimizing the impact on the use of the airspace by other aircraft. An analysis of existing MIA traffic flows shows that the Class B airspace modifications would better contain IFR flights arriving and departing MIA inside Class B airspace, and provide better separation between IFR aircraft and VFR aircraft operating in the vicinity of the Class B airspace area. Constructing sufficient airspace for safe control and separation of IFR flights improves the flow of air traffic, and more importantly enhances safety, reducing the potential for midair collision in the MIA terminal area.

The expansion to Class B airspace will affect the VFR and general aviation community. VFR operators will need to adjust their routes for the modified MIA Class B airspace. However, as mentioned above, the FAA initiated outreach between 2010 and 2019 for input and recommendations from the effected aviation community on the planned modifications to the MIA airspace. The feedback resulted in changes to the airspace design with the intent of maintaining safety and minimizing the impact to operators using the surrounding airspace.

Additionally, VFR operators can use the current north-south charted VFR Flyway below the 3,000-foot Class B floor to the west of MIA, which enables pilots to fly beneath the Class B, or contact MIA Approach to request flight following, if desired, to lessen the impact. Therefore, the FAA expects the Class B modifications in this final rule will result in minimal cost to VFR operators. The FAA requested comments on the benefits and costs of the change and received no comments with benefit or cost data.

The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation.” To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.

Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA. However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.

The final rule modifies the Class B airspace around MIA. The change affects general aviation operators using the airspace at or near MIA. Operators flying VFR will need to adjust their flight paths to avoid the modified Class B airspace. However, the modifications to Class B airspace are intended to be the least restrictive option while maintaining safety. Additionally, VFR operators can also use the current north-south charted VFR flyway below the 3,000-foot Class B floor to the west of MIA, which enables pilots to fly beneath the Class B or VFR pilots have the option to contact Miami Approach and request flight following, if desired. Therefore, as provided in section 605(b), the head of the FAA certifies that this rulemaking will not result in a significant economic impact on a substantial number of small entities.

The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this final rule and determined that it would improve safety and is consistent with the Trade Agreements Act.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $158 million in lieu of $100 million. This final rule does not contain such a mandate; therefore, the requirements of Title II of the Act do not apply.

Since this action involves, in part, the designation of navigable airspace outside the United States, the Administrator consulted with the Secretary of State and the Secretary of Defense in accordance with the provisions of Executive Order 10854.

The FAA has determined that this action of modifying the Miami International Airport, FL, Class B airspace area to ensure the containment of arriving and departing aircraft, and to reduce the potential for midair collisions in the Miami area, qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321 et seq. ) and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points). As such, this action is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. The FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

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

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

The Department of the Treasury issued the Cuban Assets Control Regulations, 31 CFR part 515 (the “Regulations”), on July 8, 1963, under the Trading With the Enemy Act (50 U.S.C. 4301-44). OFAC has amended the Regulations on numerous occasions. Today, OFAC, in consultation with the Department of State, is amending the Regulations to implement certain policy changes announced by the Administration on May 16, 2022 to increase support for the Cuban people, as set forth below.

Professional meetings and conferences in Cuba. OFAC is amending the general license at § 515.564 to include an authorization for travel-related and other transactions incident to travel to Cuba to attend or organize professional meetings or conferences in Cuba. OFAC is also amending and adding cross-references to § 515.564(a) in notes to §§ 515.534, 515.542, 515.547, 515.572, 515.577, and 515.591.

Group people-to-people educational travel and other academic educational activities. OFAC is amending the general license at § 515.565 to add an authorization for group people-to-people educational travel that takes place under the auspices of an organization that is subject to U.S. jurisdiction and that sponsors such exchanges to promote people-to-people contact, subject to certain restrictions. Such travelers must be accompanied by an employee, paid consultant, or agent of the sponsoring organization. Travel-related transactions authorized pursuant to § 515.565(b) must be for the purpose of engaging, while in Cuba, in a full-time schedule of activities that are intended to enhance contact with the Cuban people, support civil society in Cuba, or promote the Cuban people's independence from Cuban authorities; and will result in meaningful interactions with individuals in Cuba. OFAC is also amending the general license at § 515.565 to remove certain restrictions on authorized academic educational activities. This amendment does not authorize individual people-to-people travel-related transactions. OFAC is not authorizing travel-related transactions for travel to, from, or within Cuba for tourist activities, which are prohibited by statute.

Remittances. OFAC is amending § 515.570(a) to remove the $1,000 quarterly limit on remittances to Cuban nationals who are close relatives. OFAC is also adding § 515.570(b) to authorize donative remittances to Cuban nationals who are not prohibited officials of the Government of Cuba, prohibited members of the Cuban Communist Party, or close relatives of a prohibited official of the Government of Cuba or prohibited member of the Cuban Communist Party. OFAC is also adding § 515.570(h) authorizing the unblocking and return of blocked remittances, provided they would be authorized under § 515.570(a) or (b).

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

The collections of information related to the Regulations are contained in 31 CFR part 501 (the “Reporting, Procedures and Penalties Regulations”) and § 515.572 of this part. Pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), those collections of information have been approved by the Office of Management and Budget under control number 1505-0164, 1505-0167, and 1505-0168. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number.

For the reasons set forth in the preamble, OFAC amends 31 CFR part 515 as follows:

The Coast Guard will enforce safety zones in 33 CFR 165.1315, Table 1, for the events specified below, during the designated enforcement periods, and within a 450 yard radius of the launch site and the listed locations. This action is being taken to provide for the safety of life on navigable waterways during these events.

Our regulation for fireworks displays within the Thirteenth Coast Guard District, 33 CFR 165.1315, Table 1, designates the regulated areas and identifies the approximate dates for these events. The specific dates and times are specified below. During the enforcement periods, as reflected in § 165.1315, if you are the operator of a vessel in the regulated area you must comply with directions from the Patrol Commander or any Official Patrol displaying a Coast Guard ensign. These safety zones are subject to enforcement at least 1 hour prior to the start and 1 hour after the conclusion of the events.

In addition to this notice of enforcement in the Federal Register , the Coast Guard plans to provide notification of these enforcement periods via the Local Notice to Mariners and Broadcast notice to mariners.

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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. The Coast Guard did not receive notification of this event involving persons under the protection of the USSS with sufficient time to issue a NPRM and solicit comments. It is impracticable to go through the full notice and comment rule making process because the Coast Guard must establish this security zone by June 9, 2022, and lacks sufficient time to provide a reasonable comment period and to 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 impracticable and contrary to the public interest. This rule must be effective on June 9, 2022, to guard against potential acts of terrorism, sabotage, subversive acts, accidents, or other causes of a similar nature.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 and 70011, as delegated by Department of Homeland Security (DHS) Delegation No.00170.1(II)(70), Revision No. 01.2, from the Secretary of DHS to the Commandant of the U.S. Coast Guard, and further redelegated by 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5 to the Captain of the Port. In addition, the Coast Guard has authority to establish water or waterfront safety zones, or other measures, for limited, controlled, or conditional access and activity when necessary for the protection of any vessel, structure, waters, or shore area, 46 U.S.C. 70011(b)(3). This rule safeguards the lives of persons protected by the Secret Service, and of the general public, by enhancing the safety and security of navigable waters of the United States during USSS protected presence. The Captain of the Port Los Angeles—Long Beach determined that potential hazards may arise due to the persons under the protection of the USSS and their official party will be attending an event off Pacific Palisades, CA, on June 9, 2022. The USSS requested that the Coast Guard establish a security zone on the waters surrounding the event location off the eastern end of Topanga beach, Pacific Palisades, CA. The purpose of the temporary security zone is to facilitate the security and safety of the persons under the protection of the USSS during the visit.

As a result, in consultation with the USSS, the Captain of the Port Los Angeles—Long Beach has determined that the security zone is necessary to provide security for the protected person and his official party.

This rule establishes a security zone from 6 p.m. until 10 p.m. on June 9, 2022. The security zone will cover all navigable waters of Parker Canyon from surface to bottom, encompassed by a line connecting the following points beginning at 34°02′12″ N, 118°33′26″ W; thence to 34°02′19″ N, 118°34′33″ W; to the shoreline back to the beginning point, off the eastern end of Topanga beach, CA. The duration of the zone is necessary to protect the persons under the protection of the USSS and the official party while on location at the event. No vessel or person will be permitted to enter the security zone, or to remain within the security zone, without obtaining permission from the COTP or a designated representative.

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

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

This regulatory action determination is based on the size, location, and duration of the security zone. The security zone impacts a small designated area in the surrounding waters of Topanga beach, Pacific Palisades, CA, for less than four hours. Moreover, the rule allows vessels to seek permission to enter the zone. The Coast Guard will issue Broadcast Notice to Mariners via VHF-FM marine channel 16 to provide members of the public with information about the zone.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a security zone lasting less than six hours that will prohibit entry within a small designated area. 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:

The Forest Service manages National Forest System (NFS) lands that provide forage for domestic livestock grazing. The Forest Service's authority to regulate livestock grazing comes from the Organic Administration Act of 1897, as amended (16 U.S.C. 551). The Forest Service first introduced regulations requiring grazing permits and imposing fees for grazing on the forest reserves, and later the national forests, in 1906. The Forest Service managed grazing under its general authorities until 1950, when Congress enacted the Granger-Thye Act (16 U.S.C. 580l), specifically authorizing the Secretary of Agriculture to issue grazing permits on NFS lands and other lands administered by the U.S Department of Agriculture. The Forest Service permits the occupancy and use of NFS lands by domestic livestock through grazing and livestock use permits in accordance with the regulations at 36 CFR part 222. Pursuant to 36 CFR 222.50(a), the Agency is required to charge fees “for all livestock grazing or livestock use of National Forest System lands, or other lands under Forest Service control.”

Congress asked the Government Accountability Office (GAO) to examine what is known about the frequency and extent of unauthorized grazing on Federal lands and its effects. This examination included a review of the Bureau of Land Management (BLM) and Forest Service efforts to detect, deter, and resolve unauthorized grazing.

In July 2016, GAO issued a Report to the Committee on Natural Resources, House of Representatives, Unauthorized Grazing, Actions Needed to Improve Tracking and Deterrence Efforts (GAO-16-559). In the report, the GAO found that the frequency and extent of unauthorized grazing on NFS lands is largely unknown because according to Agency officials, the Agency handles most incidents informally (for example, with a telephone call) and does not document them. The incidents that were documented involved formal action taken by the Agency rangeland management program or law enforcement staff, such as issuance of a Notice of Non-Compliance and/or a Bill for Collection.

The GAO recommended that the Forest Service record all incidents of unauthorized grazing, including those resolved informally, as well as revise the excess and unauthorized grazing penalty structure to reflect the commercial value of forage. The Agency is responding to these two recommendations, but not as a part of this rulemaking process. Instead, the Agency has developed direction for implementing these two recommendations in the proposed Forest Service Manual and Handbook for Rangeland Management, which was released for public review and comment on December 18, 2020, for a 60-day comment period and extended for an additional 60-day comment period, ending April 17, 2021. (85 FR 82432, 86 FR 9048).

The GAO report also recommended the Forest Service either amend the regulations to allow the option to resolve excess and unauthorized grazing use without charging fees in some instances or follow the existing regulations by determining and charging a grazing use penalty for all unauthorized and excess use. Given the vast amount of land covered, and the wide array of natural and unnatural events that may occur across a variety of landscapes, the Agency believes it is important to have reasonable flexibility that allows for a commonsense approach to resolving certain instances of excess and unauthorized grazing use. In limited circumstances, when the use occurs because of unforeseen or uncontrollable circumstances, having the ability to waive excess and unauthorized grazing use fees will help to quickly resolve the issue while maintaining cooperative relationships. Therefore, the Forest Service amends its regulations at 36 CFR 222.50(h) to include an option for waiving the excess and unauthorized use fees when excess or unauthorized grazing use is a result of unforeseen or uncontrollable circumstances and meets all three conditions identified in the rule. Per the regulations at 36 CFR 261.2, unauthorized livestock are defined as livestock which are not authorized to be upon the land on which the livestock are located, and which is not related to use authorized by a grazing permit. “Excess livestock” are defined as livestock owned by the holder of a National Forest System grazing permit, but grazing on NFS lands in greater numbers, or at times or places other than permitted in Part 1 of the grazing permit or authorized on the annual Bill for Collection (FSM 2230.5).

On November 2, 2020, the Agency published a proposed rule (85 FR 69303) to revise 36 CFR 222.1(b) to add definitions of “non-permittee” and “non-willful,” to remove the numbering of definitions in that section (36 CFR 222.1(b)) and revise 36 CFR 222.50(h) to provide an option for nonmonetary settlement for excess or unauthorized grazing use. Following a 30-day comment period, the Agency received 33 unique, individual comments in response to the proposed rule. Most of the unique comments expressed support for the Agency's effort to provide an option to resolve excess and unauthorized grazing use cases without charging fees when the grazing use was at no fault of the livestock owner, while some commenters expressed confusion or concern regarding terms and statements, such as “nonmonetary settlement,” “non-willful,” and “in the interest of the United States.” A detailed summary of comments on the proposed rule and the Agency's responses, including changes made to the final rule language, is set forth below.

The final rule carries forward the proposed amendments in the definitions section at 36 CFR 222.1(b), adopting the definition of “non-permittee,” as well as restating the definitions section to remove the numbering and update the formatting to be consistent with the Federal Register Document Drafting Handbook (August 2018 Edition, Revision 1.1 dated August 9, 2019; National Archives and Records Administration). Minor grammatical and technical edits were also made.

The final rule does not add a definition for “non-willful”, nor does it use that term in revised 36 CFR 222.50(h). The proposed rule used and defined the term “non-willful” as “an action which is inadvertent or accidental, and not due to gross negligence.” Several commenters expressed views that by using the term “non-willful”, the Forest Service was implying a requirement that a determination of intent be made. The Forest Service agrees; therefore, we do not propose to require a determination of intent for the excess or unauthorized grazing use. Accordingly, to avoid confusion, the term “non-willful” has been removed in the final rule at 36 CFR 222.50(h) and is no longer in the definitions section at 36 CFR 222.1(b). It is replaced with the terms “unforeseen” and “uncontrollable” in the final rule to describe the circumstances for when excess or unauthorized use can be considered for a fee waiver. The terms “unforeseen” and “uncontrollable” are not added to the definitions section in the final rule, and the ordinary meaning of these terms shall apply. The Forest Service authorized officer will have the discretion to decide when a circumstance leading to unauthorized grazing was unforeseen or uncontrollable.

The final rule also does not use the term “non-monetary”, which the proposed rule used to characterize the action of not charging fees for excess and unauthorized grazing use that was considered non-willful. Commenters expressed confusion over the term “non-monetary settlement” and exactly what it meant. Some commenters expressed views that fees should be charged for all grazing use. To clarify intent in the final rule, the term “non-monetary settlement” has been replaced with language allowing an option to “waive” the fees. The option to waive the fees is intended to make the rule clear and concise such that all excess and unauthorized grazing use shall be charged unless the specific conditions set forth in the regulation are met, at which time the authorized officer may then decide to “waive” the excess or unauthorized grazing use fees. The only instances of excess and unauthorized use where a waiver of excess or unauthorized grazing use fees may be considered are those instances that occur after this rule has become effective.

The final rule carries forward the proposed amendment to 36 CFR 222.50(h) to provide the authorized officer an option to waive the excess or unauthorized grazing use fees when the use is a result of unforeseen or uncontrollable circumstances, and when certain conditions set forth in the regulation are met.

The final rule carries forward the removal of the reference in the current regulation to the fee being adjusted by the same indexes used to adjust the regular fee, as well as the removal of the reference to an unvalidated permit and replaces it with the four most common situations in which the Forest Service encounters excess or unauthorized use.

There were a few commenters who expressed views that the Agency was proposing to not charge for any excess and unauthorized grazing use. Therefore, language has been added to the final rule to highlight the relationship to 36 CFR 222.50(a) and make it clear that a grazing fee shall be charged for all grazing use. As always, the exact rate applied to the grazing use depends on whether such use is authorized or not. Title 36 CFR 222.51, 222.52, 222.53, and 222.54 describe the grazing fees charged for authorized grazing use and are not affected by this rulemaking. The excess and unauthorized use rate is applied to all grazing use made without authorization, which is described within 36 CFR 222.50(h). The final rule allows the option to waive the excess and unauthorized grazing use fee when the use was a result of unforeseen or uncontrollable circumstances and all three of the specified conditions set forth in the regulation at 36 CFR 222.50(h) are met.

Commenters expressed concern that the permittee or non-permittee would not be contacted or that they would not be required to take corrective action relative to excess or unauthorized use. Therefore, the final rule language was updated to make it clear that livestock would have to be removed by the permittee or non-permittee within the timeframe required by the authorized officer. The clarification was added to the first condition of the criteria that is required to be met before a line officer can consider a waiver of fees for excess or unauthorized use. This change is also warranted as the Agency would be unable to determine if conditions #2 and #3 of the criteria have been met if the livestock remains on NFS lands.

Commenters expressed concern and confusion over condition #4 of the criteria as presented in the proposed rule. Some commenters felt that it is never in the interest of the United States to allow excess and unauthorized use to occur free of charge, while other commenters felt that condition #4 allowed for too much discretion and would result in inconsistency across the Agency. Due to the comments received and internal Agency discussion of a similar nature, condition #4 of the criteria was removed to facilitate the clear and consistent implementation of the rule.

Some commenters expressed concern about using the terms “significant” in condition #2 and “significantly” in condition #3 of the criteria. The basis of the concern is related to how “significance” would be determined on the ground in each excess and unauthorized use case. For the purposes of the final rule, the meaning of the terms “significant” and “significantly” are unrelated to the terms as used in the context of the National Environmental Policy Act of 1969. Instead, the Forest Service uses the term “significant” in condition #2 in the ordinary meaning of the word to help field staff differentiate between a use level that is undetectable or slightly used versus a level that exceeds grazing standards that are common for the area. The level of forage use that could be considered significant will vary across the National Forest System lands because different resource conditions exist across those lands at any given time. The Forest Service authorized officer will consider the site-specific conditions to inform the decision as to whether the amount of forage consumed as a result of excess or unauthorized grazing was significant.

The term “significantly” is used in condition #3 of the criteria to help field staff differentiate between levels of impacts resulting from excess or unauthorized use. The term is used in the ordinary sense or meaning of the word to allow Forest Service personnel to differentiate between impacts that are undetectable or minor in nature where no restoration or intervention efforts are needed versus impacts that impair the management and viability of the area, creating a situation where rehabilitation or intervention is needed, or other management options need to be employed.

Comments expressed a wide range of opinions—both strongly for and against—the proposed rule. Comments expressing support for the proposed rule stated that it was a fair means to deal with excess and unauthorized use that was a result of circumstances beyond the livestock owner's control, or otherwise due to unforeseen or uncontrollable circumstances. Other comments, however, opposed various provisions of the proposed rule, expressing concern that the revisions could: (1) reward intentional bad behavior; (2) result in increased overgrazing and greater resource damage; (3) result in increasing excess and unauthorized use; (4) result in less incident documentation.

Response: The Agency notes the general comments in support of or in opposition to the rule. The Agency has carefully considered the input from the public, other government entities, and Tribes and has made several adjustments to the final rule to address the concerns described above. These changes are described in more detail below and include, for example, changing the terminology from “non-monetary settlement” to an option to “waive” the excess and unauthorized use fees. Throughout the rulemaking process, the Agency's goal has been to develop a final rule that enables the Agency to have an option to not charge for excess and unauthorized use when it is minimal and due to unforeseen or uncontrollable circumstances and not due to negligence of the livestock owner. The final rule achieves this goal and is consistent with the practices of the Bureau of Land Management and recommendations of the GAO July 2016 report.

The Agency's final rule does not eliminate or modify the existing policy to charge for all grazing use, to possibly take administrative action against a grazing permit, or to apply the penalties at 36 CFR part 261. Instead, it adds the option to waive the excess and unauthorized use fees when the use was due to unforeseen and uncontrollable circumstances and the three criteria in the final rule are met. Further, the Agency will continue to comply with the requirements of all applicable laws and regulations and continue to document and charge for all livestock grazing use and may waive the associated fees under limited circumstances when all the required criteria are met.

The three required criteria that must be met are: (1) The excess or unauthorized use was a result of unforeseen or uncontrollable circumstances on behalf of the permittee or non-permittee and the livestock associated with such use were removed by the permittee or non-permittee within the timeframe required by the authorized officer; (2) The forage consumed by the excess or unauthorized use is not significant; and (3) National Forest System lands have not been damaged significantly by the excess or unauthorized use.

Criterion #1 (so long as criterions 2 and 3 are also met) will isolate the excess or unauthorized livestock use to the single unforeseen or uncontrollable event.

Criterion #2 will ensure that forage use made during the excess or unauthorized use is considered. It will help field staff differentiate between a use level that is undetectable or slightly used versus a level that exceeds grazing standards that are common for the area to determine if a fee waiver may be an available option or not (so long as criterions 1 and 3 are also met).

Criterion #3 will ensure that the excess or unauthorized livestock use did not damage other aspects of the National Forest System lands. It is intended to allow staff to differentiate between impacts that are undetectable or minor in nature where no restoration or intervention efforts are needed versus impacts that impair the management and viability of the area, creating a situation where rehabilitation or intervention is needed, or other management options need to be employed. This criterion along with criterions 1 and 2 are intended to act in concert when reviewing the site-specific information to determine if the waiver of the excess and unauthorized use fee would be appropriate.

Comment: Some commenters suggest that there is a need to require direction to record all incidents of excess and unauthorized grazing use.

Response: The U.S. Forest Service has determined the development of policy to document all occurrences of excess and unauthorized grazing use was best resolved through internal administrative direction. Therefore, in April 2019, the Washington, DC office sent a letter to the Regional Foresters, directing documentation and billing for all cases of excess and unauthorized grazing use that equals or is greater than one head month of use. All documentation is to be filed in the 2230 grazing permit files and database for excess use and is to be documented and resolved in cooperation with law enforcement personnel for unauthorized use. The final rule provides an option for waiver of excess or unauthorized use fees when excess and unauthorized grazing use is due to unforeseen or uncontrollable circumstances, and cases will continue to be documented in the 2230 grazing permit files and database, even if no excess or unauthorized use fees were charged.

In December 2020, the U.S. Forest Service released the proposed rangeland management directives (Forest Service Manual (FSM) 2200 and Forest Service Handbook (FSH) 2209.13 and 2209.16). The proposed rangeland management directives include updated requirements and direction for documenting all excess and unauthorized grazing use and working with the livestock owner to resolve the incident. A checklist has been developed to be included as an exhibit in the final directives. The exhibit will serve as an example of how to document occurrences of excess and unauthorized use and if the three criteria have been met to allow the authorized officer the option to waive the fees. Future updates to the Rangeland Information Management System database are being considered to further aid in tracking and future reporting of excess and unauthorized grazing use and any waivers of associated fees.

Comment: Some commenters suggest the Forest Service comply with the existing regulations instead of amending regulations to allow for not charging an excess and unauthorized use fee.

Response: The GAO report recommended the Forest Service either amend the regulations to allow the option to resolve excess and unauthorized grazing use without charging fees in some instances or follow the existing regulations by determining and charging a grazing use penalty for all unauthorized and excess use. Given the vast amount of land covered, and the wide array of natural and unnatural events that may occur across a variety of landscapes, the Agency believes it is important to have reasonable flexibility which allows for a commonsense approach to resolving certain instances of excess and unauthorized grazing use. In limited circumstances, when the use occurs because of unforeseen or uncontrollable circumstances, having the ability to waive excess and unauthorized grazing use fees will help to quickly resolve the issue while maintaining cooperative relationships. Therefore, the Forest Service amends its regulations at 36 CFR 222.50(h) to include an option for waiving the excess and unauthorized use fees when excess or unauthorized grazing use is a result of unforeseen or uncontrollable circumstances and meets all three conditions identified in the rule.

Comment: Some commenters requested that the excess and unauthorized grazing penalty structure be revised, and fees increased to better deter excess and unauthorized grazing use.

Response: The U.S. Forest Service determined that the issue of revising the excess and unauthorized grazing fee was best resolved through internal administrative direction. The grazing penalty structure is addressed administratively through revision of the Forest Service Handbook (FSH) 2209.13 which was published December 18, 2020, for public comment (85 FR 82432). The FSH provides direction for calculating and assessing the annual excess and unauthorized grazing use fees. The proposed FSH 2209.13 includes updates to the excess and unauthorized use rate which reflect the commercial value of forage.

Comment: Some commenters suggested avoiding the term “non-willful” or better define the term and differentiate between “non-willful” and “willful”.

Response: The U.S. Forest Service is no longer including the term “non-willful” within the rule language and the definitions section as finalized, thus eliminating confusion over any perceived requirement to assess the intent of the livestock owner. Instead, the terms unforeseen and uncontrollable are used within criteria #1 to better articulate what circumstances must exist for the authorized officer to consider waiving excess and unauthorized grazing use fees.

The Forest Service will rely upon the ordinary meaning of the terms unforeseen and uncontrollable. As defined by the Oxford Languages Dictionary, unforeseen is an adjective meaning “not anticipated or predicted”, “unplanned”, “unexpected”. As defined by the Oxford Languages Dictionary, uncontrollable is an adjective meaning “not controllable”, “out of control”, “unmanageable”.

It is the livestock owner's responsibility to keep livestock off National Forest System lands when they are not permitted and authorized to make use of those lands. However, there are circumstances that occur beyond the control of the livestock owner that cannot be predicted. For example, when a predator attacks a band of sheep causing the sheep to scatter and move outside the authorized routing pattern or allotment area. This example demonstrates how the predation event caused the sheep to be in areas that were not authorized, resulting in excess use. The predator attack was unforeseen and uncontrollable by the permittee and the Forest Service.

Another example would be when an automobile accident occurs and damages a private landowner's fence. The private landowner's llamas get out and are grazing on National Forest System lands. This example demonstrates how the automobile accident damaged the fence, allowing the llamas to get out and graze on National Forest System lands, resulting in unauthorized use. The automobile accident was unforeseen and uncontrollable by the landowner and the Forest Service.

The terms unforeseen or uncontrollable are intended to strike a balance between providing the Forest Service reasonable flexibility when those types of situations arise while also ensuring undesirable behavior and/or repeat instances of excess and unauthorized use are addressed to reform the behavior and deter any future instances.

Comment: Some commenters suggested that the rule should not apply to National Grasslands or grazing associations because grazing associations are issued grazing agreements (which the commenter suggested are not a type of term grazing permit). They suggested the rule is not consistent with the Bankhead-Jones Farm Tenant Act of 1937 or that a specific rule should be written that describes how grazing associations would apply the rule when managing their members.

Response: Authority for managing the National Grasslands comes from Title III of the Bankhead-Jones Farm Tenant Act (BJFTA) of 1937, as amended. The portions of Title III that are most applicable are found in Sections 31 (7 U.S.C. 1010) and 32(b) and (f) (7 U.S.C. 1011). In these provisions, the Secretary of Agriculture was granted authority “[t]o make such rules and regulations as he deems necessary to prevent trespasses and otherwise regulate the use and occupancy of property acquired by, or transferred to, the Secretary for the purposes of this subchapter, in order to conserve and utilize it or advance the purposes of this subchapter” (7 U.S.C. 1011(f)). This includes the regulations found in 36 CFR part 222.

National Grasslands are part of the National Forest System per Section 10 of the Forest and Rangeland Renewable Resources Planning Act of 1974 (16 U.S.C. 1609). Management of the National Grasslands as part of the National Forest System must be conducted in a manner that is consistent with the regulations that apply to National Forest System lands which does include the revised regulations resulting from this final rulemaking.

Regarding the comment that “a specific rule should be written that describes how grazing associations would apply the rule when managing their members,” a separate rule specific to National Grasslands is not needed. As stated above, the management of the National Grasslands as part of the National Forest System must be conducted in a manner that is consistent with the regulations that apply to all National Forest System lands. The Forest Service enters into grazing agreements with grazing associations which are a type of term grazing permit (36 CFR 222.3(c)(1)). The Forest Service applies law, regulation and policy to the association when administering the grazing agreement. The grazing associations are then responsible for managing their members' livestock grazing on the lands identified in the grazing agreement. How a grazing association manages its members is articulated in the association's rules of management (ROM). There may be times where an association's ROM might be more restrictive than Federal law, regulation, or Forest Service policy and/or procedure, but they cannot be less restrictive. This includes the revised regulations related to excess grazing use resulting from this final rulemaking. This means that grazing associations are accountable to the Forest Service for any excess use made by their members, and the Forest Service may waive the fee for the association if all three conditions are met. Alternatively, if any of the criteria are not met, then the Forest Service will charge the association for the grazing use.

There are some allotments where direct permittees and grazing associations are authorized to graze livestock in common. In those instances, the Forest Service will apply this rule to all parties holding grazing permits, whether they are direct grazing permits or grazing permits in the form of a grazing agreement.

For rules designated as significant by the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget, Executive Order (E.O.) 12866, as supplemented by E.O. 13563, directs agencies to conduct a regulatory impact analysis, including an assessment of costs and benefits ( i.e., cost-benefit analysis) of the regulatory action and its alternatives, and select regulatory approaches that maximize net benefits to both the Government and the public regarding economic impacts, the environment, public health and safety, distributive impacts, and equity considerations.

Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reduced costs, of harmonized rules, and of promoting flexibility. Analysis is required to assess both the costs and benefits of the intended regulation, recognizing quantifiable analysis is not always possible, but that a reasoned determination be made that the benefits justify the regulatory costs. The final rule has been determined to be significant for the purposes of Executive Order 12866, and therefore, has been reviewed by the Office of Management and Budget.

Costs and benefits can accrue to ranchers, private industry, the agency, and to the public. Generally, industry could benefit from fewer penalty fees for excess and unauthorized use determined to meet the three circumstances identified in the rule. The agency could benefit from less time and resources spent assessing and collecting the penalty fees.

The Agency conducted a regulatory impact analysis for the final rule to amend existing regulations to allow for excess and unauthorized grazing fees to be waived if the use is a result of “unforeseen” or “uncontrollable” circumstances, a departure from existing policy which doesn't formally allow for such considerations (36 CFR part 222, subpart C). This analysis considers costs and benefits to the agency (Government), livestock operators, and the public.

The regulatory impact analysis compares impacts between the current and final rules. Savings to industry are minimal but seen as a benefit. The savings are estimated from an average cost of fees assessed multiplied by the average number of excess or unauthorized use cases eligible for fee waivers per year. To determine the anticipated number of excess or unauthorized use cases eligible for fee waivers under the final rule, the agency used data from 2017 to 2020 on the number of livestock, the duration the livestock were on National Forest System lands, and the total amount of head months associated with the excess or unauthorized use cases.

The cost-benefit analysis identifies the potential economic costs and benefits associated with the final rule. Changes in benefits and cost savings result from (1) waived fees for excess and unauthorized use and (2) associated changes in processing times for the waivers and fees. Baseline conditions are equal to operations under existing regulations and policy.

While the regulations set forth in 36 CFR part 222 apply to all National Forest System land, a review of grazing records from the last four years show that permit-holders and land managers in the western United States would be most impacted by the rule change. In 2020 alone, authorized livestock in the Forest Service's Northern (Region 1), Rocky Mountain (Region 2), Southwestern (Region 3), and Intermountain (Region 4) regions accounted for 88 percent of total authorized use on National Forest System lands. These regions encompass the states of Arizona, Colorado, Idaho, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, Utah, and Wyoming. Though excess and unauthorized use can occur on any National Forest System lands, by permittees and non-permittees, it is important to understand the magnitude of grazing and distribution across the land. The rule is not expected to change the production of forage or livestock; therefore, economic impacts from grazing on National Forest System lands are not expected to change. We do not expect the excess or unauthorized use to change, only the penalties would change for those uses that meet the conditions to have the fees waived.

It is unlikely the rule will adversely affect the natural resources or visiting public, as a condition for the rule to apply is that “the forage consumed by the excess or unauthorized use was not significant, and National Forest System lands had not been damaged significantly by the excess or unauthorized use.”

Under baseline conditions, the cost is the time for industry and the agency to process bills for collection from excess or unauthorized use. Each reported case of excess or unauthorized use requires a bill for collection to be processed. In addition to the billing and collection, Forest Service staff also need to assess the damage and determine the extent of the bill.

Overall, we do not expect costs to industry, the agency, or the public from the final rule. The time to process each bill for collection will not change. The costs will likely be lower than the baseline condition because less time would be spent overall on bills for collection because some cases could have fees waived.

As a whole, the agency believes that, though benefits have not been monetized, the rule will have positive net benefits due to the improved relationships and more timely resolution of excess and unauthorized use to minimize resource damage.

The USDA has considered the final rule in the context of Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use, issued May 18, 2001. The USDA has determined the final rule does not constitute a significant energy action as defined in Executive Order 13211. Therefore, a statement of energy effects is not required.

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

A Civil Rights Impact Analysis (CRIA) was conducted in accordance with USDA Departmental Regulation (DR) 4300-4, to determine if the implementation of the final rule would have disproportionate effects or adverse impacts on employees or program beneficiaries, because of membership in protected groups identified in USDA DR 4300-4 (regarding Civil Rights) and DR 5600-002 (regarding Environmental Justice), particularly women, ethnic and racial minorities, and people with disabilities. The final rule has been analyzed to ensure compliance with USDA's DR 4300-4, and it is determined that no adverse impacts on protected groups are expected as a result of the implementation of the final rule.

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), OIRA has designated this final rule as `not a major rule' as defined by 5 U.S.C. 804(2).

The final rule would provide an option for the authorized officer to waive the excess or unauthorized grazing use fee when the use met the following criteria: (1) the excess or unauthorized use was a result of unforeseen or uncontrollable circumstances on behalf of the permittee or non-permittee and the livestock associated with such use were removed by the permittee or non-permittee within the timeframe required by the authorized officer; (2) the forage consumed by the excess or unauthorized use is not significant; and (3) National Forest System lands have not been damaged significantly by the excess or unauthorized use. Agency regulations at 36 CFR 220.6(d)(2) exclude from documentation in an environmental assessment or environmental impact statement, as well as in a decision memo, rules, regulations, or policies to establish Service-wide administrative procedures, program processes, or instructions. The amendment to §§ 222.50(h) and 222.1(b) addresses the penalty for excess and unauthorized grazing actions taken on National Forest System land and provides a definition for a term used in the amended language. The final language removes reference to an unvalidated permit and replaces it with the four most common situations that the Forest Service considers excess or unauthorized use, which is not intended to be an exclusive list. This final rule fits within this category because it is a service-wide administrative action regulating financial policy and fees limited to determination of waiver of excess or unauthorized use fees. Moreover, an administrative action that regulates financial policy and waiver of fees in a limited situation is not authorizing any ground disturbing activities, nor is it authorizing any activities in areas where there are extraordinary circumstances that exist per 36 CFR 220.6(b). Thus, the Agency has concluded that the final rule falls within this category of actions and that no extraordinary circumstances exist which would require the preparation of an environmental assessment or environmental impact statement.

The Regulatory Flexibility Act (RFA) requires the agency to “prepare and make available for public comment an initial regulatory flexibility analysis” which will “describe the impact of the proposed rule on small entities.” (5 U.S.C. 603(a)). Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if rulemaking is not expected to have a significant economic impact on a substantial number of small entities.

A certification must include, at a minimum, a description of the affected entities and the impacts that clearly justify the “no impact” certification. The agency's reasoning and assumptions underlying its certification should be explicit to obtain meaningful public comment and thus receive information that would be used to re-evaluate the certification.

For the changes to 36 CFR part 222, subpart C, this rule affects permittees classified under the North American Industry Classification System (NAICS), as follows:

Most Forest Service grazing permittees would be considered small entities under SBA standards (owner-operators, some with LLC. designations, and others operating under an agreement with Grazing Associations). The central purpose of the final rule is the flexibility to informally resolve excess and unauthorized grazing incidents, that are a result of unforeseen or uncontrollable circumstances by waiving the excess or unauthorized grazing penalties. Informal resolution involves the permittee or non-permittee removing the livestock following a phone call from or face-to-face conversation with the authorized officer. Since the excess or unauthorized grazing penalties would be waived, any settlement or action would be of the nonmonetary nature and reduce the administrative burden on livestock operators by allowing for a waiver of fees of a situation that would typically require an administrative process to resolve.

The cost savings are due to anticipated changes in fees paid by the industry to the agency as a result of fee waivers for eligible cases of excess or unauthorized use. The cost savings are considered transfer payments. Cost savings, though minimal, would result from waived fees and reduced time assessing and processing bills. The amount of time to process a fee waiver and process a bill for collection would be the same up to the point where the Forest Service either decides to waive the fees or issue a bill for collection. The agency and industry are expected to experience cost savings from the reduced time processing and collecting excess and unauthorized use fees. While the cost savings to industry from the fee waivers would result in less government revenue, this is not planned government revenue that benefits the public. The fees are a penalty. The goal is full compliance with existing laws, meaning no fees assessed for excess and unauthorized use.

As such, the Chief of the Forest Service certifies that this rule would not have a significant economic impact on a substantial number of small entities as defined by the Regulatory Flexibility Act.

The Agency has considered the final rule under the requirements of E.O. 13132, Federalism. The Agency has determined that the final rule conforms with the federalism principles set out in this executive order; would not impose any compliance costs on the states; and would not have substantial direct effects on the States, on the relationship between the Federal government and the states, or on the distribution of power and responsibilities among the various levels of government. Therefore, the Agency has concluded that the final rule does not have federalism implications.

The Forest Service considered this final rule in compliance with E.O. 13175, Consultation and Coordination with Indian Tribal Governments. On October 30, 2020, the agency initiated a 120-day consultation period. While consultation was ongoing, the comment period for this rule concluded on February 27, 2021. The Forest Service also considered input from Tribes received after this period. Two federally recognized Tribes accepted the invitation to consult and submitted written material on the rule.

One Tribe expressed support for the proposed rule, and one Tribe expressed concern that the rule would encourage excessive damage and degradation to our fragile ecosystems.

In response, the Forest Service maintains and reiterates its commitment to charge for all grazing use and enforce its grazing regulations. The final rule is of limited scope and amends the Forest Service grazing regulation to merely provide the authorized officer an option to waive the excess and unauthorized use fee only if all 3 criteria within the regulation are met. Of particular applicability is criteria #3 which requires that only those instances of excess or unauthorized use that did not significantly damage National Forest System lands could be considered for a waiver. All other instances would be charged for along with other administrative actions or penalties depending upon the circumstances.

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

The Agency has analyzed the final rule in accordance with the principles and criteria in E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. The Agency has determined that the final rule would not pose the risk of a taking of private property.

The Forest Service has analyzed the final rule in accordance with the principles and criteria in E.O. 12988, Civil Justice Reform. The Agency has not identified any State or local laws or regulations that conflict with this regulation or that would impede full implementation of this rule. Nevertheless, if such conflicts were to be identified, the final rule will preempt the State or local laws or regulations that are found to be in conflict. However, in the case of such conflict, (1) no retroactive effect will be given to this final rule; and (2) USDA will not require the use of administrative proceedings before parties could file suit in court challenging its provisions.

Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), signed into law on March 22, 1995, the Agency has assessed the effects of the final rule on State, local, and Tribal governments and the private sector. The final rule would not compel the expenditure of $100 million or more by any State, local, or Tribal government or anyone in the private sector. Therefore, a statement under section 202 of the Act is not required.

The final rule does not contain any recordkeeping or reporting requirements or other information collection requirements as defined in 5 CFR part 1320 that are not already required by law or not already approved for use. Accordingly, the review provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) and its implementing regulations at 5 CFR part 1320 do not apply.

Therefore, for the reasons set forth in the preamble, part 222, subparts A and C, of title 36 of the Code of Federal Regulations is amended as follows:

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

This rule takes final action on the December 21, 2021, submission from OEPA requesting redesignation of the Ohio portion of the Cincinnati area to attainment for the 2015 ozone standard. The background for this action is discussed in detail in EPA's Notice of Proposed Rulemaking (Proposal), dated February 11, 2022 (87 FR 7978). In the Proposal, we noted that, under EPA regulations at 40 CFR part 50, the 2015 ozone NAAQS is attained in an area when the 3-year average of the annual fourth highest daily maximum 8-hour average ozone concentration is equal to or less than 0.070 parts per million, when truncated after the third decimal place, at all of the ozone monitoring sites in the area. ( See 40 CFR 50.19 and appendix U of part 50.) Under the CAA, EPA may redesignate nonattainment areas to attainment if sufficient complete, quality-assured data are available to determine that the area has attained the standard and if it meets the other CAA redesignation requirements in section 107(d)(3)(E). The Proposal provides a detailed discussion of how Ohio has met these CAA requirements.

As discussed in the Proposal, quality-assured and certified monitoring data for 2019-2021 show that the Area has attained the 2015 ozone standard. In the maintenance plan submitted for the Area, Ohio has demonstrated that the ozone standard will be maintained in the Area through 2035. Finally, Ohio has adopted 2026 and 2035 VOC and NO X motor vehicle emission budgets for the Area that are supported by Ohio's maintenance demonstration, which EPA is also approving in this action.

EPA provided a 30-day review and comment period for this action in the Proposal. The comment period ended on March 14, 2022. EPA received adverse comments, which are summarized and addressed below.

Comment: The commenter contends that EPA has not adequately demonstrated that the observed decrease in emissions is attributable to enforceable emission reductions. The commenter argues that some of the emission reduction measures that EPA relies on were in place well before 2019, i.e., that the measures themselves were insufficient to get the area to attainment because even after implementation of those measures in 2014 and 2017, the area continued to violate the NAAQS, and did not come into attainment until the 2019-2021 time period. The commenter cites the Cross State Air Pollution Rule (CSAPR) Update, Tier 3 Emission Standards, Category 3 Marine Diesel Engine Standards, and, more generally, several mobile source control measures that were “fully implemented” prior to 2014.

Response: EPA disagrees with the commenter's contention that EPA has not adequately demonstrated that the observed decrease in emissions is attributable to permanent and enforceable reductions in emissions, per CAA section 107(d)(3)(E)(iii). 1 As stated in EPA's long-standing guidance on redesignations (see “Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992), we interpret this provision to mean that “[a]ttainment resulting from temporary reductions in emission rates ( e.g., reduced production or shutdown due to temporary adverse economic conditions) or unusually favorable meteorology would not qualify as an air quality improvement due to permanent and enforceable emission reductions.” Calcagni Memo at 4. EPA's guidance instructs that the showing under CAA section 107(d)(3)(E)(iii) “should estimate the percent reduction . . . achieved from Federal measures . . . as well as control measures that have been adopted and implemented by the State,” and that overall, we must be able to “reasonably attribute the improvement in air quality to emission reductions which are permanent and enforceable.” Id. EPA's correlation of improvements in air quality with an identification of permanent and enforceable state and Federal measures, along with the estimated reductions in precursor emissions that cause ozone pollution which are attributable to each measure over the relevant time period, has long been one methodology to demonstrate compliance with CAA section 107(d)(3)(E)(iii) and has been upheld in court. See Sierra Club v. EPA, 774 F.3d 383, 393-95 (7th Cir. 2014). As noted by the court in Sierra Club, “the CAA does not require EPA to prove causation to an absolute certainty. Rather in accord with its own internal guidance . . . EPA had to `reasonably attribute' the drops in ozone to permanent and enforceable measures. Only if EPA's path cannot `be reasonably discerned,' or if EPA relied on factors `that Congress did not intend it to consider' or `fail[ed] to consider an important aspect of the problem,' will we conclude that EPA acted arbitrarily or capriciously.” Id. at 396.

The commenter is correct that some of the measures cited by EPA as contributing to the area's attainment, including the CSAPR Update, Tier 3 Emissions Standards, and Category 3 Marine Diesel Engine Standards, were in place prior the area's attainment. However, that does not mean that these control measures did not contribute to and were not reasonably attributable to the area's attainment. Control measures do not achieve all emission reductions in the first year that those measures are implemented. State and Federal emission reduction requirements continue to apply well past the initial implementation year and continue to achieve reductions that contribute to improving, and in this case, attaining, air quality. Some mobile source measures in particular will continue to achieve cumulative emission reductions well past the initial implementation date because they achieve additional reductions with fleet turnover, i.e., as older on-road vehicles and non-road engines are replaced with newer ones that meet more stringent emission standards.

On September 7, 2016, EPA finalized an update to CSAPR requiring further reductions in NO X emissions from electric generating units (EGUs) beginning in May 2017. This final rule was projected to result in a 20% reduction in ozone season NO X emissions from EGUs in the eastern United States, a reduction of 80,000 tons in 2017 compared to 2015 levels, with continued EGU reductions each year. Emissions of NO X from EGUs in Ohio have reflected the continued emission reductions measures, as NO X emissions from EGUs in Ohio have been reduced by 29 percent statewide from 2016 through 2020. The continued application of these reductions in Ohio and upwind states was a key contributor to improved and attaining air quality in Cincinnati. In addition, EPA finalized the revised CSAPR Update on April 30, 2021 (86 FR 23054), and that rule required additional reductions of almost 10,000 tons of ozone season NO X in Ohio, 2 equivalent to a 50% reduction in EGU emissions, effective by the 2021 ozone season, i.e., one of the years in the design value period that shows attainment.

With respect to the mobile sources measures cited by the commenter, the commenter incorrectly states that the Tier 3 Emission Standards for Vehicles were fully implemented by 2017. In fact, the standards, which are expected to reduce NO X and VOC emissions by 80%, first took effect in 2017, and will continue to be phased in through 2025, after which additional reductions will continue to be achieved through fleet turnover. Similarly, the Category 3 Marine Diesel Engine Standards, which will reduce NO X emissions from new engines by 80%, began in 2016, and emission reductions will continue to occur at least through 2030 as older engines are replaced. These standards, in conjunction with rules reducing emissions from international and in-use vessels covered by MARPOL Annex VI, are estimated to result in NO X emissions reductions in the United States of 1.2 million tons per year (tpy). Reductions from both Tier 3 Emissions Standards and Category 3 Marine Diesel Engine Standards first took effect between the nonattainment period and the attainment period but have been achieving emission reductions every year since they were first implemented. EPA reasonably attributed the improved air quality in the Cincinnati area to these significant control measures, even if those measures did not immediately and independently cause the Area to attain the 2015 ozone NAAQS.

In addition, there are numerous other permanent and enforceable control measures that resulted in emission reductions that contributed to and are reasonably attributable for the Area's attainment. These include the New Source Performance Standards (NSPS) for Residential Wood Heaters, of which Phase 2 began in 2020 and is projected by EPA to achieve 9,265 tons of VOC reductions annually when fully implemented; the Control of Hazardous Air Pollutants from Mobile Sources, which EPA estimates will reduce VOC emissions by over 1 million tons by 2030; and the Emissions Standards for Locomotives and Marine Compression-Ignition Engines, first promulgated in 2008, which EPA projected to reduce NO X emissions by 800,000 tons in 2030 which will continue to increase in later years as fleet turnover is completed.

None of these control programs which rely upon the replacement of older, more polluting technology with newer technology that meets more stringent emissions standards can be considered fully implemented upon initial adoption of the emission standard. The rules are considered fully implemented when the fleet has turned over and the new technology is in widespread use. Additional reductions from these programs continue to be generated throughout the implementation period as newer units replace older, more polluting units.

In reviewing Ohio's request, EPA applied the same methodology as it has for the many redesignated areas across the country over the last three decades. The Proposal discussed at length the various state and Federal promulgated measures and the estimated precursor emission reductions impacts attributable to each of those measures. The commenter does not dispute the permanence or enforceability of any of the measures listed by EPA, nor does the commenter refute that the measures obtained the estimated reductions cited by EPA.

Comment: The commenter argues that EPA's determination that improved air quality during 2019-2021 was caused by permanent and enforceable emissions reductions program is unlawful, arbitrary, and capricious because EPA did not evaluate whether decreased economic activity from the COVID-19 pandemic caused improved air quality in the Area. The commenter contends that EPA should not rely solely on data from 2019, 2020 and 2021 when the Area came into attainment, due to COVID-19 effects on power plant emissions and automobile travel being the likely cause of the reductions rather than the cited enforceable reduction measures. Further, the commenter argues that the fact that EPA considered the impact of the pandemic in the Agency's proposal to redesignate Detroit, Michigan demonstrates that it was unreasonable for EPA to ignore the potential impact of the pandemic on Cincinnati's attainment.

Response: EPA does not agree that our determination that the Area's attainment is due to permanent and enforceable reductions is arbitrary and capricious. As previously discussed, we think that OEPA's submission and the rationale provided in EPA's Proposal establishes that the Area's attainment is due to the cited permanent and enforceable reductions. However, in response to this comment, EPA has performed an additional analysis focused on emission trends in point sources and mobile sources in the Cincinnati area. That analysis, discussed in detail below, confirms our determination.

The commenter highlighted nationally decreased power plant emissions during the COVID-19 pandemic recession beginning in 2020. Therefore, EPA evaluated the point source emissions from Butler, Clermont, Hamilton, and Warren Counties in Ohio, the counties that make up the Ohio portion of the Area, based on data from EPA's Emissions Inventory System (EIS)  3 Gateway. The point source reductions achieved from the nonattainment year 2014 through the attainment year of 2019 show NO X and VOC emission reductions of 22 and 12 percent, respectively. Between 2019 (pre-pandemic) and 2020 (pandemic), NO X point source emission were reduced by 0.4 percent. The vast majority of the emission reductions did not occur as a result of the pandemic.

EPA also analyzed the pandemic's impact on passenger and truck traffic in response to the commenter's assertion that automobile travel “plunged” in 2020 as a result of the pandemic. We found that, consistent with statewide trends, car traffic did decrease during the pandemic, but truck traffic increased. From mid-March 2019 to mid-March 2020, passenger and truck traffic in Hamilton County, the county which contains the Cincinnati city limits, were down 12 percent and 4 percent, respectively. 4 From mid-March 2019 to mid-March 2021, passenger traffic was down 19 percent, while truck traffic was up by 5 percent. Expanding this further, from mid-March 2019 to mid-March 2022, passenger traffic was down 12 percent while truck traffic was up by 9 percent. This pattern highlights several components of the United States' `new normal' since the arrival of the COVID-19 pandemic. An Ohio statewide analysis by the Ohio-Kentucky-Indiana Regional Council of Governments (OKI) assesses the `new normal' including monthly traffic impacts after the state of emergency was lifted on June 6, 2021, concluded overall traffic conditions in 2021 were decreased by a range of 3 to 7 percent, from June 2021 through January 2022, considering a monthly average. Separating between car and truck traffic, over the same time period, car traffic was decreased ranging from 5 to 9 percent, while truck traffic was increased from June 2021 through January 2022, ranging from 9 to 14 percent. In EPA's 2017 National Emissions Inventory (NEI), there were 31,762 tpy of NO X attributed to heavy duty vehicles (HDV) in Clermont, Butler, Hamilton, and Warren counties and 38,564 tpy of NO X attributed to light duty vehicles (LDV). Thus a 10% decrease in LDV Vehicle Miles Travelled (VMT) and a 10% increase in HDV VMT would be expected to lead to a small net decrease in onroad NO X emissions for these counties of less than 1,000 tpy and corresponding to a change of less than 1 percent. Thus, assuming that vehicle traffic scales linearly with NO X emissions, decreases in LDV VMT of between 3 and 19% paired with changes in truck VMT ranging from a 4% decrease to a 14% increase could lead to net NO X change ranging from a decrease of approximately 8,600 tpy to an increase of approximately 3,300 tpy corresponding to a 12% decrease and a 5% increase respectively. As a result of these light duty and heavy duty VMT trends in opposite directions in the Cincinnati area it is not clear whether the COVID-19 lockdowns led to any significant net mobile NO X reductions in this nonattainment area.

A similar analysis by OKI of the Ohio counties in the Area (Clermont, Butler, Hamilton, and Warren) included average weekday daily traffic in the OKI region from 2019 to 2021, from 20 (directional) Ohio Department of Transportation (ODOT) permanent traffic count stations (Table 1). The results highlight 2021 car traffic levels higher than 2020, but remaining approximately 7 percent below 2019 traffic levels, while truck traffic increased by 13 percent from 2019 to 2021, which OKI characterizes as the `new normal'. Truck traffic did not experience the marked decrease beginning in March of 2020 at the outbreak of COVID-19 to the degree car traffic experienced, and by late June of 2020, truck traffic counts equaled June 2019 truck traffic counts, and exceeded them throughout the rest of 2020. This distinction is pertinent because EPA has found that in the upper Midwest, the majority of ozone exceedances occur in late May though late July. In the Area in particular, through the 2011-2021 time period, as ozone design values have decreased, ozone exceedances are more likely to occur later in the ozone season, and most likely in the months of June or July. 5 This time period would be within the same time frame that 2020 truck traffic returned to and exceeded 2019 truck traffic and hence, would have entered the `new normal' conditions by the time the Area experiences its highest ozone values.

An analysis performed by OKI showed that VMT values are projected to increase throughout the maintenance period in the Area. 6 While EPA recognizes COVID-19 led to decreases in traffic and mobile source emissions, EPA would like to emphasize that the Area has continued to model decreases in on-road emissions despite modeled VMT increases, leaving the Area with an even larger margin when comparing on-road emissions in 2019 and emissions in 2026 and 2035 if the `new normal' conditions prove to be temporary and traffic again rises beyond what is forecast in the maintenance plan.

Additionally, NEI trends data shows consistent decreases in both NO X and VOC emissions in Ohio from highway vehicles since 2011, and off-highway NO X and VOC emissions since 2002. With the many mobile source reduction measures in place in Ohio, EPA has no reason to believe that the reductions achieved are based on a brief period of decreased VMT in 2020 due to the COVID-19 pandemic.

As suggested by the commenter, EPA also performed an analysis similar to the one performed by Michigan's Environment, Great Lakes and Energy agency in their submittal requesting redesignation of the Detroit area for the 2015 ozone standard, 7 to evaluate whether the improvement in air quality was caused by temporary adverse economic conditions, especially the economic conditions associated with the COVID-19 pandemic which first impacted Ohio in 2020. EPA first considered point source reduction trends, noting that between 2005 and 2017, OEPA provided that Ohio's NO X and VOC emissions decreased by 57 percent and 33 percent, respectively. Further, EPA compared the maximum 8-hour ozone concentrations against VMT and employment from 2014 through 2021. This highlighted that while employment levels were affected by COVID-19 and saw a decrease of employed individuals of almost 12,000 comparatively from the average 2019 levels to April of 2020, employment returned to 2019 levels by July 2020, according to Bureau of Labor and Statistics (BLS) Quarterly Census of Employment and Wages. 8 Employment levels continued to increase through 2021, and while the analysis showed a correlation between VMT and employment in the Area, no direct correlation between these economic indicators and the high ozone values was identified. The VMT and emissions values generated by OKI using EPA's MOVES3 model indicate increasing VMT and decreasing emissions from the nonattainment year of 2014, through the attainment year of 2019, the interim year of 2026, and the end year of 2035. Further, under section 176(c) of the CAA, new transportation plans, programs, or projects that receive Federal funding or support, such as the construction of new highways, must “conform” to ( i.e., be consistent with) the SIP. Conformity to the SIP means that transportation activities will not cause or contribute to any new air quality violations, increase the frequency or severity of any existing air quality problems, or delay timely attainment or any required interim emissions reductions or any other milestones.

Ohio's maintenance plan includes NO X and VOC motor vehicle emissions budgets (budgets) for the Area for 2026, the interim year, and 2035, the last year of the maintenance period (Table 2). The budgets are the portion of the total allowable emissions that are allocated to highway and transit vehicle use that, together with emissions from other sources in the Area, will provide for attainment or maintenance. These budgets represent the projected 2026 and 2035 on-road emissions plus a safety margin and are consistent with maintenance of the 2015 ozone NAAQS, which is described below. Detailed information on the transportation conformity program can be found in our Proposal.

A “safety margin” is the difference between the attainment level of emissions (from all sources) and the projected level of emissions (from all sources) in the maintenance plan. Further, the transportation conformity regulations allow states to allocate all or a portion of a documented safety margin to the motor vehicle emissions budgets for an area (40 CFR 93.124(a)). Ohio is allocating a portion of that safety margin to the mobile source sector. Specifically, in 2026, Ohio is allocating 1.85 TPSD and 3.30 TPSD of the VOC and NO X safety margins, respectively. In 2035, Ohio is allocating 1.38 TPSD and 2.48 TPSD of the VOC and NO X safety margins, respectively. Since only a part of the safety margin is being used, maintenance requirements are still easily met. Once allocated to on-road mobile sources, these safety margins will not be available for use by other sources.

EPA recognizes the difficulties in assessing the impacts of the COVID-19 pandemic on ozone precursor emissions and ozone design values and the economic disparities from the COVID-19 pandemic, but we do not agree that the Area's attainment is due to a temporary economic downturn associated with the COVID-19 pandemic. To the contrary, our analysis of the available data regarding point source emissions in the Cincinnati area and trends in vehicular traffic do not indicate that the Area's attainment was driven by temporary conditions. The effect of the pandemic on point source emissions in the Area was insignificant in comparison to the effect of enforceable control measures, and the decrease in passenger vehicle VMT during the pandemic is not only largely offset by an increase in truck traffic but likely does not have a strong correlation with maximum ozone design values. OKI's mobile source modeling performed for the Area indicates that vehicular emission control measures will continue to drive emissions down even as VMT is projected to increase.

Comment: The commenter asserts that ozone concentrations from the design value period 2017-2019 ( i.e., before the COVID-19 pandemic) undermines EPA's finding that the reduced ambient ozone concentrations observed in 2019-2021 are in fact attributable to permanent and enforceable regulations that took effect between 2004 and 2017. The commenter points out that during the 2017-2019 time period, several monitors in the Area recorded annual 4th high daily maximum 8-hour ozone concentrations that exceeded the level of the NAAQS. The commenter contends that EPA's failure to consider this earlier period ( i.e. , 2017-2019) as a relevant set of data for assessing the relative impact of enforceable emission reductions and the impact of the COVID-19 pandemic on reduced ozone levels in 2020-2021 was arbitrary and capricious and calls into question the reasonableness of EPA's proposed redesignation to attainment. The commenter also notes that EPA looked at precursor emissions from 2014 and 2019 but only analyzed ozone concentrations during the 2019-2021 period.

Response: EPA disagrees with the commenter's suggestion that the fact that the Cincinnati area was not attaining the 2015 ozone NAAQS in 2017-2019 ( i.e., before the COVID-19 pandemic) undermines our conclusion that the Area has attained due to permanent and enforceable measures, as opposed to decreases in emissions associated with the pandemic. As discussed in the previous comment responses, many of the permanent and enforceable measures applicable to the sources in the Area or to sources upwind of the Area impose continued, and in some cases additional, emission reductions with each year of implementation ( e.g., phased-in mobile source standards in addition to fleet turnover). Control measures do not obtain all emission reductions in the first year of their implementation, and not all impacts from a control measure are necessarily reflected in ozone concentrations in that year. Ozone formation and measured concentrations are dependent on a host of factors, including emissions and meteorology, and the continued application of many control measures across many source categories over a period of time has a significant impact on decreasing ozone concentration trends.

We therefore do not think that violating data from 2017-2019 necessarily means that attaining data from 2019-2021 was caused by a reduction in emissions due to the pandemic. However, in response to the commenter's suggestion, we analyzed emissions information for point sources in the Area and for mobile sources in the Area during pre-pandemic periods and from the years 2020 and 2021 ( i.e., during the pandemic). Our conclusion, discussed in the comment response above, is that while the pandemic likely had some impact on emissions in the Area, that impact does not appear to have been the primary driver of decreased ozone concentrations in the Area.

To further support OEPA's demonstration that the improvement in air quality between the year violations occurred and the year attainment was achieved, is due to permanent and enforceable emission reductions and not on favorable meteorology, the state included a classification and regression tree (CART) analysis to demonstrate that the improvement in air quality was not due to unusually favorable meteorology, which was performed by the Lake Michigan Air Directors Consortium (LADCO). The goal of the analysis was to determine the meteorological and air quality conditions associated with ozone episodes, and construct trends for the days identified as sharing similar meteorological conditions in ozone nonattainment areas in the LADCO region. Regression trees were developed for the Cincinnati area ozone data to classify each summer day by its ozone concentration and associated meteorological conditions. By grouping days with similar meteorology, the influence of meteorological variability on the underlying trend in ozone concentrations is partially removed and the remaining trend is presumed to be due to trends in precursor emissions or other non-meteorological influences. The CART analysis showed the resulting trends in ozone concentrations declining over the period examined, 2005 through 2020, supporting the conclusion that the improvement in air quality was not due to unusually favorable meteorology.

The CART analysis shows that ozone concentrations for all five high-ozone day types have decreased over the last 16 years, demonstrating that on days with similar meteorology, ozone concentrations on high-ozone days at Cincinnati monitors have decreased substantially since 2005. Overall, OEPA concluded that average summer temperatures have remained steady and average ozone concentrations have decreased from 2005 through 2021, providing a strong basis to conclude that reductions in precursors are responsible for the reductions in elevated ozone concentrations in the Area, and that these emission reductions were not solely or primarily driven by a pandemic-related decrease in emissions or unusually favorable meteorology, but rather by the host of permanent and enforceable state and federal measures that have been applied and will continue to apply over time.

Further, we find no fault with Ohio's examination of 2019 emissions within the nonattainment area ( i.e., the attainment inventory) for purposes of illustrating the reduction in emissions in the Area over time (from 2014 to 2019). To the extent that commenter is suggesting Ohio also should have provided emission inventories for years 2020 and 2021, we do not agree that information was necessary to evaluate emission trends. The State's selection of one year of emissions during a design value period indicating nonattainment and one year of emissions during a design value period indicating attainment was sufficient to show that emissions had decreased substantially within the Area during that time period. Moreover, even though the state did not supply full emission inventories for years 2020 and 2021 (which they were not required to do), EPA performed additional analysis of the potential COVID-19 effects on the Area in response to the commenter's suggestion. As discussed in the previous comment responses, that analysis showed that point source precursor emissions of NO X and VOC in the Area did not decrease substantially from the pre-pandemic year of 2019 to 2020. Likewise, the Ohio state-wide analysis by OKI concluded that overall traffic conditions in 2021 were decreased by a range of 3 to 7 percent compared to 2019, from June 2021 through January 2022, while truck traffic increased over the same time period. The overall mobile source modeling indicated that an increase in VMT does not necessarily correspond to an increase in emissions, because of the impact of mobile source standards.

We therefore do not agree that it is unreasonable to redesignate the Ohio portion of the Cincinnati area to attainment of the 2015 ozone NAAQS.

Comment: The commenter argues that this action affects an Environmental Justice (EJ) Community. Specifically, the commenter points out that Black Americans make up more than 40% of Cincinnati's residents, and that according to the U.S. Census, Cincinnati has twice the poverty rate of the United States as a whole. The commenter therefore argues that it is particularly incumbent upon EPA to thoroughly consider the monitoring time period of 2017-2019 and not the pandemic years of 2020 and 2021, to ensure that any redesignation to attainment consider the “longstanding excessive burden experienced by Black and low-income communities in southwestern Ohio.”

Response: EPA sets the NAAQS at a level to protect the public health, with an adequate margin of safety, including the health of at-risk populations, and protect the public welfare from adverse effects. The criteria set forth in 40 CFR 50.19 and appendix U of part 50 to attain the 2015 ozone NAAQS establishes that the 3-year average of the annual fourth-highest daily maximum 8-hour average ozone concentration must be less than or equal to 0.070 ppm, which is true of the Area. While EPA recognizes the importance of assessing impacts of our actions on potentially overburdened communities, we believe that our approval of Ohio's redesignation request for the 2015 ozone NAAQS would not exacerbate existing pollution exposure or burdens for populations in the Cincinnati area.

Even so, Executive Order 12898 (59 FR 7629, February 16, 1994) requires that Federal agencies, to the greatest extent practicable and permitted by law, identify and address disproportionately high and adverse human health or environmental effects of their actions on minority and low-income populations. Additionally, Executive Order 13985 (86 FR 7009, January 25, 2021) directs Federal Government agencies to assess whether, and to what extent, their programs and policies perpetuate systemic barriers to opportunities and benefits for people of color and other underserved groups, and Executive Order 14008 (86 FR 7619, February 1, 2021) directs Federal agencies to develop programs, policies, and activities to address the disproportionate health, environmental, economic, and climate impacts on disadvantaged communities. To identify environmental burdens and susceptible populations in communities in the Area, EPA performed a screening-level analysis using EPA's EJ screening and mapping tool (“EJSCREEN”). 9 EPA utilized the EJSCREEN tool to evaluate environmental and demographic indicators at the county level for each county within the Area (Butler, Clermont, Hamilton and Warren). Additional indicators of overall pollution burden include estimates of ambient particulate matter (PM 2.5 ) concentration, a score for traffic proximity and volume, percentage of pre-1960 housing units (lead paint indicator), and scores for proximity to Superfund sites, risk management plan (RMP) sites, and hazardous waste facilities. EPA's screening-level analysis indicates that communities in the Area affected by this action score below the national average for the EJSCREEN “Demographic Index”, which is the average of an area's percent minority and percent low income populations, i.e., the two demographic indicators explicitly named in Executive Order 12898. As discussed in the EPA's EJ technical guidance, people of color and low-income populations often experience greater exposure and disease burdens than the general population, which can increase their susceptibility to adverse health effects from environmental stressors. 10 Additionally, EPA has provided that if any of the EJ indexes for the areas under consideration are at or above the 80th percentile nationally, then further review may be appropriate. 11 The results indicate that these areas score below the 80th percentile (in comparison to the nation as a whole) in the twelve EJ Indexes established by EPA, which include a combination of environmental and demographic information, with one exception. In Hamilton county, the EJ Index for Risk Management Plan (RMP) Facility Proximity scored at the 81st percentile. This EJ index considers the count of RMP (potential chemical accident management plan) facilities within 5 km (or nearest one beyond 5 km), each divided by distance in kilometers.

Considering these results, EPA further considered forthcoming and existing emission reduction measures that may help to mitigate existing pollution issues in the Area. The Area's redesignation to attainment will include the continued application of the Prevention of Significant Deterioration (PSD) permitting requirements including installation of the Best Available Control Technology (BACT), air quality analysis, additional impacts analysis, and public involvement for new and modified sources. The Federal mobile source and point source emission reduction programs and NO X cap and trade programs through CSAPR, identified as the permanent and enforceable regulations which led to the Area's attainment, remain in place and will continue to achieve reductions. Further, Ohio has submitted a maintenance plan that shows continuing reductions in NO X and VOC emissions through 2035 and includes contingency measure provisions to address any possible future violation of the NAAQS.

Additionally, Ohio has adopted regulations to address the NO X and VOC Reasonably Available Control Technology (RACT) requirements that apply to moderate areas. Despite Cincinnati's current marginal ozone classification, Ohio voluntarily adopted these RACT rules for the Area after planning efforts were underway for moderate RACT requirements for the 2015 ozone standard in Cleveland. The NO X RACT Rule 3745-110 of the Ohio Administrative Code (OAC), which became effective March 25, 2022, applies to existing boilers, stationary combustion turbines, stationary internal combustion engines, reheat furnaces, or sources located at a facility that emits or has the potential to emit a total of more than 100 tpy of NO X emissions and specifically states applicability to sources located in Butler, Clermont, Hamilton or Warren county. 12 Similarly, VOC RACT Rule 3745-21 of the OAC, effective March 27, 2022, is applicable to various source categories in Butler, Clermont, Hamilton and Warren counties to facilities that have a total uncontrolled potential to emit for VOC emissions of 100 tpy. OEPA has submitted the VOC RACT rules that cover both Cleveland and Cincinnati for approval into the Ohio SIP and have submitted the NO X RACT rules that apply to Cleveland for approval into the Ohio SIP. Hence, they will be implementing NO X RACT in both Cleveland and Cincinnati, and NO X RACT will be federally enforceable in Cleveland. These rules will be SIP strengthening and go beyond what is required in the Area at the Federal level and are expected to achieve additional emission reductions and contribute to maintenance of the ozone standard in the Area.

EPA acknowledges that ozone problems may not be solved through redesignations, that regional solutions are required, and that coordinated cooperation between stakeholders may lead to improved air quality. As previously noted, OEPA has established a maintenance plan containing contingency measures as a safeguard designed to ensure compliance with the NAAQS going forward. EPA also continues to implement programs addressing regional and interstate transport of NO X , such as the Revised CSAPR Update. Finally, EPA encourages the commenter to remain engaged with stakeholders in the effort to protect human health and the environment.

In accordance with Ohio's December 21, 2021, request, EPA is redesignating the Cincinnati Ohio-Kentucky nonattainment area from nonattainment to attainment of the 2015 ozone NAAQS. EPA finds that the Area is attaining the 2015 ozone NAAQS and meets the statutory requirements for redesignation under the CAA. EPA is also approving Ohio's maintenance plan, which is designed to ensure that the Area will continue to maintain the ozone NAAQS through 2035. Lastly, EPA is approving the state's 2026 and 2035 NO X and VOC motor vehicle emission budgets for the Ohio portion of the Area.

In accordance with 5 U.S.C. 553(d) of the Administrative Procedure Act (APA), EPA finds there is good cause for this action to become effective immediately upon publication. The immediate effective date for this action is authorized under both 5 U.S.C. 553(d)(1). 13

Section 553(d)(1) of the APA provides that final rules shall not become effective until 30 days after publication in the Federal Register “except . . . a substantive rule which grants or recognizes an exemption or relieves a restriction.” The purpose of this provision is to “give affected parties a reasonable time to adjust their behavior before the final rule takes effect.” Omnipoint Corp. v. Fed. Commc'n Comm'n, 78 F.3d 620, 630 (D.C. Cir. 1996); see also United States v. Gavrilovic, 551 F.2d 1099, 1104 (8th Cir. 1977) (quoting legislative history). However, when the agency grants or recognizes an exemption or relieves a restriction, affected parties do not need a reasonable time to adjust because the effect is not adverse. EPA has determined that this rule relieves a restriction because this rule relieves sources in the area of Nonattainment New Source Review (NNSR) permitting requirements; instead, upon the effective date of this action, sources will be subject to less restrictive PSD permitting requirements. For this reason, EPA finds good cause under 5 U.S.C. 553(d)(1) for this action to become effective on the date of publication of this action.

Under the CAA, redesignation of an area to attainment and the accompanying approval of a maintenance plan under section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those imposed by state law. A redesignation to attainment does not in and of itself create any new requirements, but rather results in the applicability of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For these reasons, this action:

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

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

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

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

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

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

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

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

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

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

This action is subject to the Congressional Review Act, and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 8, 2022. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

For the reasons stated in the preamble, EPA amends 40 CFR parts 52 and 81 as follows:

The Mid-Atlantic Fishery Management Council and the Atlantic States Marine Fisheries Commission cooperatively manage summer flounder, scup, and black sea bass. The Council and the Commission's Management Boards meet jointly each year to recommend recreational management measures. Recreational management measures are required to be set so that recreational harvest achieves, but does not exceed, the recreational harvest limit (RHL).

In this final rule, NMFS is implementing conservation equivalency to manage the 2022 summer flounder and black sea bass recreational fisheries, as proposed on April 18, 2022 (87 FR 22863). The approval of conservation equivalency means that we are waiving Federal summer flounder and black sea bass recreational measures in Federal waters, and for all federally permitted party/charter vessels, regardless of where they fish. States, through the Commission, are collectively implementing measures designed to constrain landings to the 2022 recreational harvest limits. Vessels fishing in Federal waters and Federal party/charter vessels are subject to the regulations in the state in which they land. These measures are consistent with the recommendations of the Council and the Commission. Additional information on the development of these measures is provided in the proposed rule and not repeated here.

For scup, we are implementing a 1-inch (2.54-cm) increase to the minimum size, consistent with the recommendation of the Council and Board. We are not implementing a closure of the recreational scup fishery in Federal waters as originally proposed. The rationale for this change is provided below.

We have decided not to close the Federal recreational scup fishery as proposed on April 18, 2022; 87 FR 22863. Instead, we are implementing a 1-inch (2.54-cm) increase to the scup recreational minimum size in Federal waters. In Federal waters, this results in a 10-inch (25.4-cm) total length minimum size. Combined with the 1-inch (2.54-cm) size change being implemented by the states, an approximate 33-percent reduction in harvest is expected.

Our rationale for implementing the size limit increase and not the Federal closure, is based, in part, on the objectives of the Magnuson-Stevens Act. Per the National Standards, management actions need to prevent overfishing while minimizing social and economic impacts, considering equity, and minimizing discards, among other factors. Additionally, we considered ongoing actions by the Council and Commission to address the factors that are considered for recreational regulations. Many of the comments received on the proposed rule highlighted these issues, and these are summarized in the comment response section.

The proposed closure would have only impacted the Federal recreational fishery (recreational scup fishing beyond 3 miles from land, or federally permitted party/charter scup vessels regardless of area fished). The majority (about 94 percent) of scup harvest comes from state waters. If a closure had been implemented, it was expected that federally permitted for-hire vessels would have dropped their federal permit for the fishing year and pursued scup in state waters. While this may have alleviated some of the anticipated economic impacts, it would have also likely resulted in increased effort in state waters, minimizing the impact of the closure on overall scup harvest. Additionally, scup is difficult to avoid when fishing for other popular recreational targets such as black sea bass, and because it would have been illegal to retain scup in Federal waters, we anticipated that scup discards on those trips would have increased substantially, further limiting the reduction in scup harvest.

Additionally, the commercial fishery is not expected to harvest its entire quota, and, as in previous years, overall harvest is not expected to result in overfishing. With less than a month left in the Winter I commercial scup fishery, only 45 percent of the quota has been harvested, trending lower than landings in 2021. A letter from several State Directors cited the repeated quota underutilization of the commercial fishery: “The commercial fishery has repeatedly underutilized its allocation, leaving an average of 34 percent of the coastwide quota over the last 6 years.” Preliminary commercial landings from 2021 are 12.93 million lb (5,864 mt) and the 2021 quota was 20.50 million lb (9,298 mt). The 2022 commercial scup quota is 20.38 million lb (9,244 mt) and, as stated above, harvest to date is trending lower than last year. Even if commercial landings in 2022 eventually were to match the 2021 landings, the result would be a 7.4-million lb (3,356-mt) commercial quota underage, which would nearly cover the projected recreational overage of 7. 8 million lb (3,538 mt) under status quo recreational regulations. The projected recreational overage of 7. 8 million lb (3,538 mt) also does not account for the estimated 33-percent reduction in harvest that is expected to be achieved through the minimum size increase.

Given the potential negative social and economic impacts of the closure and the likelihood that it is not necessary to prevent overfishing, we have determined that the 1-inch (2.54-cm) minimum size increase is sufficient action at this time. However, the Council and Board are considering final action on the Harvest Control Rule Framework Adjustment/Addendum at their joint meeting in June that, if approved, would change the way recreational management measures are set for summer flounder, scup, black sea bass, and bluefish. All of the alternatives being considered by the Council and Board place a greater emphasis on factors such as stock size and trends, fishing mortality, and recruitment, and rely less on Marine Recreational Information Program (MRIP) estimates to determine if, and how, recreational management measures should be changed. We agree that the current process for setting recreational management measures can be improved and we will continue to work with the Council and Board on the Harvest Control Rule Framework/Addendum. However, should the Council and Board fail to take action in June to change the factors to be considered in setting recreational management measures, we intend to pursue Secretarial action to address the recreational regulatory issues.

The regulations at 50 CFR 648.122(b) require the Regional Administrator to propose recreational management measures that will achieve the recreational annual catch limit (ACL): “If the Regional Administrator determines that additional recreational measures are necessary to ensure that the sector ACL will not be exceeded, he or she will publish a proposed rule in the Federal Register to implement additional management measures for the recreational fishery. After considering public comment, the Regional Administrator will publish a final rule in the Federal Register to implement annual measures.”

If the Council and Board do not change the way that recreational measures are set, NMFS, through the authority of the Magnuson-Stevens Act at section 305(d), would pursue changes to the regulations that would authorize the Regional Administrator to assess the likelihood of the combined projected recreational and commercial harvest to exceed the acceptable biological catch (ABC) and, if the combined harvest is not likely to exceed the ABC, to implement a transfer of commercial quota to the recreational sector. This transfer would ensure that the recreational sector ACL (adjusted for the transfer) would not be exceeded.

The Commission has certified that the 2022 recreational fishing measures required to be implemented in state waters for summer flounder are, collectively, the conservation equivalent of the season, fish size, and possession limit prescribed in 50 CFR 648.104(b), 648.105, and 648.106(a). According to § 648.107(a)(1), vessels subject to the recreational fishing measures are not subject to Federal measures, and instead are subject to the recreational fishing measures implemented by the state in which they land. Section 648.107(a) is amended through this final rule to recognize state-implemented measures as the conservation equivalent of the Federal coastwide recreational management measures for 2022.

In addition, this action revises the default summer flounder coastwide measures (a 18.5-inch (47-cm) minimum size, four-fish possession limit, and May 15 through September 15 open fishing season), that become effective January 1, 2023, upon the expiration of the 2022 conservation equivalency program.

The Commission has certified that the 2022 recreational fishing measures required to be implemented in state waters for black sea bass are, collectively, the conservation equivalent of the season, fish size, and possession limit prescribed in 50 CFR 648.145(a), 648.146, and 648.147(b). According to § 648.142(d)(2), vessels subject to the recreational fishing measures are not subject to Federal measures, and instead are subject to the recreational fishing measures implemented by the state in which they land. Section 648.151 is amended through this final rule to recognize state-implemented measures as the conservation equivalent of the Federal coastwide recreational management measures for 2022.

This action also sets the following coastwide black sea bass measures: A 14-inch (35.56-cm) minimum size; a 5-fish possession limit; and an open season of May 15-October 8. These measures become effective January 1, 2023, upon the expiration of the 2022 conservation equivalency program.

We proposed a closure of the Federal, recreational, scup fishery, but, as explained above, we have decided not to close the fishery. Instead, we are implementing a 1-inch (2.54-cm) increase to the minimum size for scup, as recommended by the Council and Board. Otherwise, this final rule is unchanged from the proposed rule.

We received 319 comments on the proposed rule, 296 of which were opposed to the Federal recreational scup closure, including comments from the: New York Fishing Tackle Trade Association; Regal Marine Products, Inc.; Rhode Island Party and Charter Boat Association; Stellwagen Bank Charter Boat Association; Connecticut Charter and Party Boat Association; Connecticut Fishermen's Alliance; Freeport Hudson Anglers; and a joint letter from the Center for Sportfishing Policy, National Marine Manufacturers Association, Recreational Fishing Alliance, Coastal Conservation Association, American Sportfishing Association, and the Congressional Sportsmen's Foundation. In part due to our consideration of these comments, we have decided not to close the Federal recreational scup fishery and instead implement a 1-inch (2.54-cm) minimum size increase.

One comment was not relevant to the proposed rule and another simply stated, “No.” These comments are not discussed further.

Comment 1: A significant number of comments cited potential negative social and economic impacts (63 comments and 152 comments, respectively) of a Federal recreational scup closure. These comments claimed a disproportionate and inequitable impact on for-hire (party and charter) vessels, as well as negative impacts on shoreside businesses and individuals who harvest scup for sustenance or recreation. Particularly in the context of the social and economic impacts of the COVID-19 pandemic and the current high costs of food and fuel, the commenters asserted that a closure of the Federal scup fishery at this time would have detrimental impacts to the businesses and individuals that rely on it.

Response: We are not closing the Federal scup fishery, in part because of the negative social and economic impacts anticipated by the commenters. As discussed elsewhere in the preamble, our rationale for implementing the size limit increase instead of the Federal closure is to prevent overfishing while minimizing social and economic impacts, considering equity, and minimizing discards, among other factors. Additionally, we considered ongoing actions by the Council and Commission to address the way that recreational regulations are set.

Comment 2: One hundred and seven comments cited the importance of scup as an accessible and affordable food source and the detrimental effect a Federal closure would have on individuals and families that rely on scup for sustenance.

Response: We are not closing the Federal scup fishery, in part because of the negative impacts anticipated by the commenters. See the earlier part of this preamble for a full discussion of the rationale.

Comment 3: Twenty-two comments specifically referenced Environmental Justice issues with the closure, specifically asserting it would have a disproportionate impact on certain ethnic groups or lower income individuals and families.

Response: We are not closing the Federal scup fishery, in part because of the negative impacts anticipated by commenters. See the earlier part of this preamble for a full discussion of the rationale.

Comment 4: Seventy commenters questioned the need for a closure of the Federal recreational scup fishery when the stock is so healthy, with a biomass of nearly two times the target level.

Response: We are not closing the Federal scup fishery, in part because of the high biomass level and low risk of overfishing even if the recreational fishery exceeds the RHL in 2022. See the earlier part of this preamble for a full discussion of the rationale.

Comment 5: We received five comments in support of the scup closure; these comments cited the need to prevent overfishing or were not supportive of fishing in general.

Response: We have determined that it is not necessary to close the Federal recreational scup fishery to prevent overfishing. Additionally, shifted effort into state waters and potential increases in scup discards on Federal waters trips may have limited, or negated, the actual harvest reduction achieved by the closure. The reduction in harvest achieved by the increased size limit is expected to achieve the needed conservation objective to prevent overfishing and ensure catch does not exceed the ABC. It should be also be noted that scup is not overfished, and is not experiencing overfishing.

Comment 6: We received 24 comments that opposed the proposed 2022 black sea bass measures because they are more restrictive than measures currently in place. Many of these comments also cited dissatisfaction with the specific state regulations that are being implemented to meet the conservationally equivalent reduction in recreational harvest of 20.7 percent. These comments also asserted that black sea bass is an abundant stock, with a biomass over two times the biomass target, and questioned why reductions are needed when the stock is healthy and overfishing is not occurring.

Response: The current regulations for black sea bass require NMFS to implement recreational management measures that are projected to ensure that the sector-specific ACL for an upcoming fishing year or years will not be exceeded. The regulations do not provide flexibility to consider factors such as biomass or fishing mortality in the measure-setting process. Black sea bass is at high levels of biomass, but projected recreational catch and harvest significantly exceeds the previously adopted ACL and RHL. Even though biomass is high, and overfishing is not occurring, because no regulatory flexibility currently exists to incorporate these factors, we are required to implement reductions. NMFS will continue to work with the Council and Commission on the Recreational Reform Initiative to address fundamental problems with recreational fisheries management such as this lack of regulatory flexibility, in as timely a fashion as possible.

Additionally, this rule does not implement state-specific measures, but rather waives the Federal recreational measures. States and regions set their own management measures, which are approved through the Commission process.

Comment 7: We received a significant number of comments that suggested alternative approaches to constrain scup harvest: 128 comments suggested increasing the size limit, with a suggested range from 10 to 14 inches (25.4 to 35.6 cm); 54 comments suggested a reduced bag limit ranging from 3 to 30 fish, or specifying a percent reduction from 10 to 20 percent; 65 comments suggested a seasonal closure, most specified closing January through April, while others more generally stated, “during the winter” or any season less than a year-round closure; and 4 comments suggested that the closure could be applied to the private sector only.

Response: We appreciate the public comments and suggestions on alternative approaches to reduce scup harvest. As stated above, we have decided not to close the Federal recreational scup fishery. We are implementing a 1-inch (2.54-cm) increase to the Federal minimum size, as suggested by many commenters and recommended by the Council and Board.

Comment 8: Twenty commenters cited the uncertainty in the MRIP data as rationale for eliminating or lowering the black sea bass and scup harvest reductions.

Response: NMFS agrees that there is uncertainty in the MRIP estimates. Due to concerns about uncertain data points, the Commission's Summer Flounder, Scup, and Black Sea Bass Technical Committee performed additional analyses to examine and ultimately remove and replace data outliers. The Technical Committee (TC) developed a modified Thompson Tau analysis for identifying and smoothing outlier harvest estimates. Based on the results of this analysis, the TC concluded that a revised coastwide harvest reduction target between 20.7 and 26.8 percent would be viable for management. The Council and Board ultimately adopted the 20.7-percent reduction at a joint meeting in February, 2022. This reduction is less than the 28-percent reduction that was originally proposed by the Council and Board. Given that the Technical Committee's analysis and reduction ultimately adopted by the Board and Council removes data outliers, additional changes to the needed reduction based on outliers may be redundant and inappropriate for management.

For scup, we are not implementing a Federal closure. The minimum size increase being adopted is projected to reduce harvest by 33 percent, less than the 56-percent harvest reduction specified in the Council's analysis.

Comment 9: Five commenters stated that the scup closure would lead to increased discards and, thus, no meaningful reduction in mortality.

Response: NMFS agrees that there may be some catch that would have been converted to discards if we had closed the Federal scup fishery. An expected increase in discards, which would offset the harvest reduction of the closure, was one of the reasons we decided not to close the Federal scup fishery.

It should also be noted that, given all of the factors (weather, regulations for other species, fuel cost, etc.) that can impact recreational fishing behavior, we cannot reliably predict how much catch will change in response to the management changes. Compared to landed fish, fish that are caught and released have a higher rate of survival. The released fish that survive continue to contribute to the population. For black sea bass and scup, it is estimated that 85 percent of released fish that are caught recreationally survive.

Comment 10: Twenty-six comments suggested that commercial fishing operations were to blame for the needed reductions and/or that additional restrictions on commercial fishing operations should be imposed instead of the recreational scup closure. Several comments also stated that recreational fishing had a minor impact, in terms of overall harvest, compared to the commercial fishery.

Response: Recreational scup harvest is a significant proportion of overall scup harvest and mortality. In 2020, 13.50 million lb (6,123 mt) of scup were landed by the commercial fishery, and 12.91 million lb (5,855 mt) were landed by the recreational fishery. In 2019, recreational landings exceeded commercial landings. The commercial fishery has, as mentioned previously in this rule, repeatedly underutilizied its allocation. This action does not consider changes to commercial fishery regulations. Commercial fishery regulations were previously approved through the 2022-2023 specification (86 FR 72859, Dec. 23, 2021). This action is intended to address the 2022 recreational management measures.

Comment 11: Four people commented on specific state regulations for summer flounder, including the suggestion of implementing a slot limit.

Response: This action does not implement state-specific measures for summer flounder. States and/or regions develop their recreational summer flounder management measures through the Commission process. This action only considers the need to implement coastwide measures or the ability to waive Federal measures through the conservation equivalency process. In this action, we have approved conservation equivalency and thus are waiving Federal summer flounder recreational management measures.

Comment 12: Three comments supported the summer flounder regulations, including the RI Charter Boat Association.

Response: We agree, and have implemented conservation equivalency for summer flounder as proposed.

Comment 13: One comment did not support the liberalization of the recreational summer flounder regulations, citing concerns about the stock health.

Response: The Council, Board, and technical bodies considered the stock status of summer flounder when developing the recommended summer flounder liberalization. In accordance with the regulations, a liberalization of up to 33 percent could have been applied but, given that the stock is still below the target and general concerns regarding stock health, a lower liberalization of 16.5 percent was selected. It should also be noted that states and/or regions do not have to liberalize measures by 16.5 percent. A 16.5-percent increase in recreational harvest is a ceiling, or maximum liberalization, allowed under conservation equivalency.

Comment 14: One comment discussed the timing of the proposed rule and that it is difficult to run a business when regulations are unknown even after the recreational fishing season has started.

Response: We acknowledge the concerns about the timing of this, and previous, recreational rulemaking and the difficulty the timing creates for businesses and individuals to plan for the season. Unfortunately, getting recreational management measures in place was not possible any earlier this year because of the timing of the Council and Board meetings, the time required for states and regions to develop management measures, and the time required for the regulatory process. We are working with the Council and Board on the Harvest Control Rule Framework/Addendum that considers options to set measures every other year and that may allow for measures to be set earlier, so they are available before the start of the fishing year (January 1).

The Administrator, Greater Atlantic Region, NMFS, determined that these management measures are necessary for the conservation and management of the summer flounder, scup, and black sea bass fisheries and are consistent with the Magnuson-Stevens Act and other applicable laws.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

The Assistant Administrator for Fisheries, NOAA, finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay of effectiveness period for this rule, to ensure that the final management measures are in place as soon as possible.

The Federal coastwide regulatory measures for recreational summer flounder and black sea bass fishing that were effective last year remain in place until the decision to waive Federal measures for 2022 is made effective by this final rule. Many states have already implemented their conservationally equivalent 2022 measures; a delay in implementing the measures of this rule will be contrary to the public interest because it would increase confusion on what measures are in place in Federal waters. Inconsistencies between the states' measures and the Federal measures could lead to misunderstanding of the applicable regulations and could increase the likelihood of noncompliant landings. Additionally, the Federal measures currently in place are more restrictive than many of the measures in state waters, which unnecessarily disadvantages federally permitted vessels who are subject to these more restrictive measures until this final rule is effective.

The measures currently in place for scup and black sea bass are more liberal than the measures this action will implement. Further delay of the implementation of the 2022 measures will increase the likelihood that the 2022 RHLs and recreational ACLs will be exceeded. We are required to implement measures to constrain recreational harvest to prevent overfishing.

In response to this action, unlike actions that require an adjustment period to comply with new rules, recreational and charter/party operators will not have to purchase new equipment or otherwise expend time or money to comply with these management measures. Rather, complying with this final rule simply means adhering to the published state management measures for size, bag limit, and season of summer flounder, scup, and black sea bass while the recreational and charter/party operators are engaged in fishing activities.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. While we received no comments specifically regarding this certification, we did receive a number of comments citing economic impacts from the proposed closure of the scup fishery in Federal waters. However, in this final rule, we are not taking an action to close the scup fishery, which mitigates those potential economic impacts. Therefore, as a result, a final regulatory flexibility analysis was not required and none was prepared.

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

For the reasons set out in the preamble, 50 CFR part 648 is amended as follows: