The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2022-1488; Project Identifier MCAI-2022-00788-R” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Kristi Bradley, Program Manager, COS Program Management Section, Operational Safety Branch, Compliance & Airworthiness Division, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5110; email kristin.bradley@faa.gov. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

Transport Canada, which is the aviation authority for Canada, has issued Transport Canada AD CF-2022-33, dated June 15, 2022 (Transport Canada AD CF-2022-33), to correct an unsafe condition for Bell Textron Canada Limited Model 206A, 206A-1, 206B, 206B-1, 206L, 206L-1, 206L-3 and 206L-4 helicopters, all serial numbers.

This proposed AD was prompted by a report in which a Bell Textron Canada Limited Model 206L-1 helicopter experienced loss of TR drive during a maintenance test flight, which was due to a failure of an adhesively bonded joint between an adapter and a tube on one of the segmented TRDS assemblies.

The FAA is proposing this AD to detect degradation of the adhesive bond of the TRDS assembly. The unsafe condition, if not addressed, could result in loss of TR drive and subsequent loss of control of the helicopter. See Transport Canada AD CF-2022-33 for additional background information.

Transport Canada AD CF-2022-33 requires determining if a helicopter has an affected TRDS installed. If there is an affected TRDS installed, Transport Canada AD CF-2022-33 requires performing a repetitive detailed inspection of the bond line of the inboard end of the flange and, if there is damage, replacing the affected TRDS with a serviceable TRDS. Transport Canada AD CF-2022-33 also requires performing a repetitive proof load test of the TRDS assembly and replacing any TRDS that fails the proof load test. Transport Canada AD CF-2022-33 also prohibits installing a TRDS unless certain requirements are met.

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

The FAA also reviewed Bell Alert Service Bulletin (ASB) 206-20-139, Revision A, dated August 21, 2020 (ASB 206-20-139 Rev A) for Model 206A, 206B, and TH-67 helicopters, and Bell ASB 206L-20-184, Revision C, dated January 14, 2021 (ASB 206L-20-184 Rev C) for Model 206L, 206L-1, 206L-3, and 206L-4 helicopters. This service information specifies procedures for repetitive detailed visual inspections and proof load tests of installed bonded TRDSs, and replacement of an affected bonded TRDS that fails a visual inspection or proof load test with a serviceable segmented bonded TRDS or a riveted TRDS. This service information also specifies that replacing all the bonded TRDS assemblies with riveted TRDS assemblies is a terminating action for the repetitive visual inspections and proof load tests.

The FAA reviewed Bell Helicopter Technical Bulletin (TB) No. 206-06-186, Revision B, dated September 7, 2007, and Bell Helicopter Textron TB No. 206L-02-207, Revision A, dated January 22, 2003, which both specify procedures for installing a riveted TRDS and rotor break disc; inspecting the aft short shaft and driveshaft assemblies; and stripping and painting the aft short shaft and driveshaft assemblies.

These helicopters have been approved by the aviation authority of Canada and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with Canada, Transport Canada, its technical representative, has notified the FAA of the unsafe condition described in its AD. The FAA is proposing this AD after evaluating all known relevant information and determining that the unsafe condition described previously is likely to exist or develop on other helicopters of these same type designs.

This proposed AD would require accomplishing the actions specified in Transport Canada AD CF-2022-33, described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this proposed AD and except as discussed under “Differences Between this Proposed AD, the Transport Canada AD, and the Service Information.”

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to incorporate Transport Canada AD CF-2022-33 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with Transport Canada AD CF-2022-33 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in Transport Canada AD CF-2022-33 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “Corrective Actions,” compliance with this AD requirement is not limited to the section titled “Corrective Actions” in Transport Canada AD CF-2022-33. Service information referenced in Transport Canada AD CF-2022-33 for compliance will be available at regulations.gov by searching for and locating Docket No. FAA-2022-1488 after the FAA final rule is published.

Where the service information referenced in Transport Canada AD CF-2022-33 specifies recording certain information in the event of a bond line failure and notifying Bell Product Support Engineering of the findings, this proposed AD would not require recording any information or reporting any information to Bell Product Support Engineering.

The FAA estimates that this AD, if adopted as proposed, would affect 1,395 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this proposed AD.

Determining if an affected TRDS is installed would take about 0.5 work-hour for an estimated cost of $43 per helicopter and $59,985 for the U.S. fleet.

Inspecting the bond line and performing a proof load test would take about 1.5 work-hours for an estimated cost of $128 per helicopter per inspection cycle.

Replacing an affected TRDS assembly would take about 12 work-hours and parts would cost up to $32,708 for an estimated cost of up to $33,728 per helicopter.

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

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

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

For the reasons discussed above, I certify this proposed regulation:

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

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

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

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

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2022-1063; Project Identifier AD-2021-01339-T” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Chris Baker, Aerospace Engineer, Propulsion Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3552; email: christopher.r.baker@faa.gov. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

This proposed AD was prompted by the discovery of a safety issue related to the reliability of the oxygen sensor of the airplane's NGS.

The NGS is an onboard inert gas system that reduces the flammability of the airplane's center fuel tank. The NGS uses an air separation module (ASM) to separate oxygen and nitrogen from the air. The ASM uses input from an oxygen sensor. After the ASM separates the oxygen-enriched air from the nitrogen-enriched air, the NGS returns nitrogen-enriched air to the fuel tank, and vents the oxygen-enriched air overboard. These actions reduce the flammability of the fuel tank.

Boeing discovered that the oxygen sensor's reliability can degrade over time. Degraded performance by the sensor could result in the ASM failing to produce nitrogen-enriched air, and the fuel tank becoming more flammable due to excessive oxygen-enriched air. Such additional flammability, if coupled with an ignition source in the fuel tank, could lead to a fuel tank explosion. This proposed AD would require adding an airworthiness limitation to require periodic replacement of the oxygen sensor.

This proposed AD would apply to airplanes with an original airworthiness certificate or original export certificate of airworthiness issued on or before April 1, 2021, as well as airplanes with line numbers 7668, 7678, and 7915. Boeing did not start delivering airplanes with Boeing 737-7/8/8200/9/10 Special Compliance Items/Airworthiness Limitations, D626A011-9-04, dated January 2019, which addresses this issue, until after April 1, 2021, and delivered airplanes with line numbers 7668, 7678, and 7915 with an earlier revision of that document. The applicability in this proposed AD is therefore limited to airplanes that were delivered with a version of Boeing 737-7/8/8200/9/10 Special Compliance Items/Airworthiness Limitations, D626A011-9-04 dated prior to January 2019.

The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.

The FAA reviewed Boeing 737-7/8/8200/9/10 Special Compliance Items/Airworthiness Limitations, D626A011-9-04, dated January 2019. This service information describes, among other airworthiness limitations (AWLs), airworthiness limitation instruction (ALI) AWL No. 47-AWL-09, “Nitrogen Generation System—Oxygen Sensor,” for replacing oxygen sensors. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

This proposed AD would require revising the existing maintenance or inspection program, as applicable, to incorporate a new airworthiness limitation.

This proposed AD would require revisions to certain operator maintenance documents to include new actions (replacements). Compliance with these actions is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by this proposed AD, the operator may not be able to accomplish the actions described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph (i) of this proposed AD.

The FAA estimates that this AD, if adopted as proposed, would affect 62 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

The FAA has determined that revising the existing maintenance or inspection program takes an average of 90 work-hours per operator, although the agency recognizes that this number may vary from operator to operator. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, the FAA estimates the average total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).

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

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

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

For the reasons discussed above, I certify this proposed regulation:

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

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

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

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of 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 would modify the National Airspace System (NAS) as necessary to preserve the safe and efficient flow of air traffic.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA-2022-1424 Airspace; Docket No. 22-AEA-11) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the internet at www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2022-1424; Airspace Docket No. 22-AEA-11.” The postcard will be date/time stamped and returned to the commenter.

All communications received on or before the specified comment closing date will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the comment closing date. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the internet at www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Operations Support Group, Central Service Center, Federal Aviation Administration, 10101 Hillwood Parkway, Fort Worth, TX 76177.

This document proposes to amend FAA Order JO 7400.11G, Airspace Designations and Reporting Points, dated August 19, 2022, and effective September 15, 2022. FAA Order JO 7400.11G is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is planning to decommission the Indian Head, PA, VOR in June 2023. The Indian Head VOR was one of the candidate VORs identified for discontinuance by the FAA's VOR MON program and listed in the Final policy statement notice, “Provision of Navigation Services for the Next Generation Air Transportation System (NextGen) Transition to Performance-Based Navigation (PBN) (Plan for Establishing a VOR Minimum Operational Network),” published in the Federal Register of July 26, 2016 (81 FR 48694), Docket No. FAA-2011-1082.

Although the VOR portion of the Indian Head, PA, VORTAC is planned for decommissioning, the co-located Distance Measuring Equipment (DME) portion of the NAVAID is being retained to support NextGen PBN flight procedure requirements.

The air traffic service (ATS) routes effected by the Indian Head VOR decommissioning are Jet Route J-518 and VOR Federal airways V-119, V-268, and V-474. With the planned decommissioning of the Indian Head VOR, the remaining ground-based NAVAID coverage in the area is insufficient to enable the continuity of the affected ATS routes. As such, proposed modifications to V-268 and V-474 would result in the affected airway segments being removed and the airways being shortened; and to J-518 and V-119 would result in the ATS routes being revoked.

To overcome the proposed modifications and revocations to the affected ATS routes, instrument flight rules (IFR) traffic could use portions of adjacent ATS routes, including Jet Routes J-60, J-162, and J-211 in the high altitude enroute structure and V-12, V-44, V-469, and V-501 in the low altitude enroute structure, or receive air traffic control (ATC) radar vectors to circumnavigate or fly through the affected area. Pilots equipped with RNAV capabilities could also navigate in the high altitude and low altitude enroute structures point to point using existing NAVAIDs and fixes that would remain in place to support continued operations through the affected area. Visual flight rules (VFR) pilots who elect to navigate via the affected ATS routes could also take advantage of the adjacent ATS routes or ATC services listed previously.

The FAA also proposes to establish RNAV route Q-178 between the Dryer, OH, VOR/Distance Measuring Equipment (VOR/DME) and the Baltimore, MD, VORTAC NAVAIDs. The new Q-route would mitigate the proposed revocation of J-518 due to the planned decommissioning of the Indian Head VOR, reduce ATC sector workload and complexity, and reduce pilot-to-controller communications. The new Q-route would also provide RNAV equipped aircraft an ATS route alternative and support the FAA's NextGen efforts to modernize the NAS navigation system from a ground-based system to a satellite-based system.

The FAA is proposing an amendment to 14 CFR part 71 to amend VOR Federal airways V-268 and V-474, revoke Jet Route J-518 and VOR Federal airway V-119, and establish RNAV route Q-178. The ATS route amendments, revocations, and establishment are due to the planned decommissioning of the Indian Head, PA, VOR. The proposed ATS route actions are described below.

J-518: J-518 currently extends between the Dryer, OH, VOR/DME and the Baltimore, MD, VORTAC via the Indian Head, PA, VORTAC. The FAA proposes to remove the route in its entirety.

Q-178: Q-178 is a new RNAV route proposed to extend between the Dryer, OH, VOR/DME and the Baltimore, MD, VORTAC via the LEJOY, PA, Fix located approximately 4 nautical miles (NM) northwest of the Indian Head VORTAC. This new Q-route would mitigate the proposed revocation of J-518 and provide RNAV routing between the Cleveland, OH, area and the Baltimore, MD, area. The new Q-178 would provide the high altitude enroute structure necessary to replace the loss of J-518 and maintain the connectivity to multiple instrument approach procedures for various airports.

V-119: V-119 currently extends between the Parkersburg, WV, VOR/DME and the Indian Head, PA, VORTAC. The FAA proposes to remove the airway in its entirety.

V-268: V-268 currently extends between the intersection of the Morgantown, WV, VOR/DME 010° and Johnstown, PA, VOR/DME 260° radials (NESTO Fix) and the Augusta, ME, VOR/DME. The airspace within restricted area R-4001B and the airspace below 2,000 feet mean sea level (MSL) outside the United States is excluded. The FAA proposes to remove the airway segment overlying the Indian Head VORTAC between the NESTO Fix and the Hagerstown, MD, VOR. As amended, the airway would extend between the Hagerstown VOR and the Augusta VOR/DME.

V-474: V-474 currently extends between the intersection of the Morgantown, WV, VOR/DME 010° and Johnstown, PA, VOR/DME 260° radials (NESTO Fix) and the Modena, PA, VORTAC. The FAA proposes to remove the airway segment overlying the Indian Head VORTAC between the NESTO Fix and the St. Thomas, PA, VORTAC. As amended, the airway would extend between the St. Thomas VORTAC and the Modena VORTAC.

The NAVAID radials listed in the ATS route descriptions below are unchanged and stated in True degrees.

Jet Routes are published in paragraph 2004, United States Area Navigation Routes (Q-routes) are published in paragraph 2006, and VOR Federal airways are published in paragraph 6010(a) of FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022, which is incorporated by reference in 14 CFR 71.1. The ATS routes and reporting point listed in this document would be published subsequently in FAA Order JO 7400.11.

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

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

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” prior to any FAA final regulatory action.

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

Title VII of the Act vests Commerce with authority to administer the AD/CVD laws. In particular, section 731 of the Act directs Commerce to impose an AD order on merchandise entering the United States when it determines that a producer or exporter is selling a class or kind of foreign merchandise into the United States at less than fair value ( i.e., dumping), and material injury or threat of material injury to that industry in the United States is found by the International Trade Commission (ITC). Section 701 of the Act directs Commerce to impose a CVD order when it determines that a government of a country or any public entity within the territory of a country is providing, directly or indirectly, a countervailable subsidy with respect to the manufacture, production, or export of a class or kind of merchandise that is imported into the United States, and material injury or threat of material injury to that industry in the United States is found by the ITC. 1

In conducting its AD/CVD proceedings, the statute directs Commerce to make certain information generally available on a public record. 2 Because of the nature of Commerce's proceedings, which frequently require Commerce to rely on non-public information such as business proprietary information in issuing its determinations, the statute also provides a framework for Commerce to receive such information and maintain its proprietary nature by exempting it from disclosure on the public record. Specifically, pursuant to section 777(c)(1)(A) of the Act, Commerce must make available to interested parties, under an APO, business proprietary information submitted to it during the course of an AD/CVD proceeding. Additionally, section 777(d) of the Act requires that parties submitting to Commerce business proprietary information which is covered by an APO must serve such information on all interested parties who are parties to the proceeding that are subject to the protective order. 3 Section 777(d) of the Act also requires that the submitter serve a nonconfidential summary of the business proprietary information to all interested parties who are parties to the proceeding. Further, section 777(d) of the Act states that Commerce shall not accept information which is not accompanied by a certificate of service or otherwise does not comply with the statutory requirements. Section 777(c)(1)(B) of the Act authorizes Commerce to issue regulations governing the APO process. Commerce's current regulations are codified at 19 CFR part 351.

Section 351.303 of Commerce's regulations provides procedural rules governing the filing of documents (including public documents containing only public information, business proprietary documents containing business proprietary information, and public versions of business proprietary documents), 4 as well as service of documents. In particular, § 351.303(b) generally requires that all parties submitting documents to Commerce must file electronically through Commerce's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). Additionally, § 351.303(f)(1)(i) generally requires that all documents filed with Commerce must be served simultaneously on all parties on the relevant public or APO service lists. 5 Section 351.303 also contains special rules for specific types of documents. For example, § 351.303(c) allows for a one-day lag in the filing of the final version of business proprietary documents and public versions of proprietary documents (known as the “one-day lag rule”). Commerce has adopted a number of temporary changes to its service rules due to COVID-19. 6 These changes are codified at § 351.303(f)(4).

The purpose of the regulatory changes proposed in this rulemaking is to assist in making the administration of Commerce's AD/CVD proceedings more efficient by allowing parties to utilize available electronic or other efficient means of service. In addition, the proposed changes also update certain outdated cross-references and citations, remove two paragraphs (§§ 351.204(d)(3) and 351.408(c)(3)) invalidated by the Federal Circuit, and make other revisions intended to clarify certain regulatory provisions, including the scope, circumvention, and covered merchandise referral regulations.

Current § 351.303(f)(1)(i) provides that service of documents filed with Commerce on the record of a segment of a proceeding  7 must be done simultaneously via personal service or first-class mail on all parties on the relevant APO or public service lists, with certain exceptions. 8 Of importance, § 351.303(f)(1)(ii) provides that service of public documents, public versions of business proprietary documents, or a business proprietary document containing only the server's own business proprietary information may be made by facsimile transmission or other electronic transmission process, with the consent of the person to be served. Additionally, § 351.303(f)(3)(i) provides special rules for expediting service of case and rebuttal briefs upon designated agents located within and outside the United States.

In a prior rulemaking in which Commerce first established its electronic filing procedures under ACCESS, Commerce also announced the future implementation of its now-existing procedures related to the electronic release of Commerce-generated documents using ACCESS. 9 Pursuant to these procedures, Commerce currently releases both public and business proprietary documents (and public versions of business proprietary documents) which it has self-generated using ACCESS. Upon release, Commerce notifies the lead attorney for service and any other designated authorized individuals on the relevant APO and public service lists via email that a new document has been posted to a particular segment of a proceeding. 10 The authorized user is then able to securely access the business proprietary document for 14 days from the date of filing, 11 before its access to the document expires (access to public documents and public version documents does not expire; these documents remain available on ACCESS). At the time Commerce announced these procedures, it received comments requesting that Commerce adopt similar procedures to effectuate service of documents filed by interested parties on one another. 12 Commerce considered these comments, but ultimately determined to focus its attention on establishing electronic filing procedures, rather than electronic service. 13

In the years since the 2011 Final Rule, the establishment of ACCESS, and the Temporary Rule, Commerce has gained significant experience with its electronic filing and service procedures and is now proposing new regulations to formally effectuate service via ACCESS. Since the Temporary Rule went into effect on March 24, 2020, Commerce received comments from the Committee to Support U.S. Trade Laws (CSUSTL)  14 and the Customs and International Trade Bar Association (CITBA)  15 expressing support for the Temporary Rule and requesting that Commerce promulgate regulations to make service of business proprietary documents via ACCESS permanent.

Under the Temporary Rule, § 351.303(f)(4) provides that, with limited exceptions, service of business proprietary documents are deemed to have been served on persons on the APO service list upon filing of the business proprietary document in ACCESS. Those APO-authorized persons receive an ACCESS email notification called a “BPI Release Digest” at approximately noon and 5:00 p.m. on business days, which notifies them of the availability of business proprietary documents for download. Those documents remain available for 14 days after filing. This method of service does not apply to requests for administrative review, new shipper review, changed circumstances review and expedited review. Because service lists for these segments are not yet established in ACCESS at the time of filing the relevant request, parties must serve them by personal service or first-class mail. 16 In addition, requests for a scope ruling or circumvention inquiry are served in accordance with §§ 351.225(n) and 351.226(n), respectively. The Temporary Rule also does not apply to the service of public documents and public versions of business proprietary documents. However, Commerce proposes effectuating service via ACCESS for public documents and public versions of business proprietary documents with revised § 351.303(f)(1), as discussed below.

Commerce proposes to continue requiring a person filing a document with Commerce to simultaneously serve a copy of the document on all other persons on the service list, with the exception of a petition and proposed suspension agreement (which are addressed under §§ 351.202(c) and 351.208(f)(1), respectively) and requests for an expedited antidumping review, an administrative review, a new shipper review, or a changed circumstances review (which have specific service requirements under current paragraph (f)(3) and revised paragraph (f)(2) of this section). Revised paragraph (f)(1)(i) addresses service of public documents and public versions of business proprietary documents. Revised paragraph (f)(1)(ii) addresses service of business proprietary documents, and revised paragraph (f)(1)(iii) provides acceptable alternative methods of service when ACCESS cannot effectuate service.

Under revised paragraph (f)(1)(i), service of a public document or public version of a business proprietary document is effectuated on the persons on the public service list upon filing of the submission in ACCESS, unless ACCESS is unavailable, in which case paragraph (f)(1)(iii) is applicable. This is an expansion of the Temporary Rule, which only applies to business proprietary documents. Commerce has determined that effectuating service via ACCESS will make the method of service consistent between business proprietary documents, public documents and public versions of business proprietary documents. It will also reduce the burden on the parties, while also reducing the risk of error associated with serving incorrect documents or incorrect parties. Similar to what is done with business proprietary documents, ACCESS will email a “Public Release Digest” that notifies parties to the proceeding when a public document or public version of a business proprietary document submitted by parties to the proceeding is available for download. This digest will be emailed to individuals on Commerce's public service lists at approximately noon and 5:00pm on business days.

Under new paragraph (f)(1)(ii)(A), service of a business proprietary document is effectuated on the persons on the APO service list upon filing of the submission in ACCESS, unless ACCESS is unavailable, in which case paragraph (f)(1)(iii) is applicable. In addition, new paragraph (f)(1)(ii)(A) provides that a business proprietary document submitted under the one-day lag rule that contains bracketing  17 that is not final under paragraph (c)(2)(i) must be served using an acceptable alternative method under paragraph (f)(1)(iii), as discussed below. Because bracketing is not final until one business day after filing these documents, Commerce does not make them available in ACCESS. Therefore, they require an alternative method of service.

Under new paragraph (f)(1)(ii)(B), if a document contains business proprietary information of a person who is not included on the APO service list, then service of such document on that person cannot be effectuated on ACCESS. Instead, the submitter must serve that person its own business proprietary information using an acceptable alternative method under new paragraph (f)(1)(iii) and in accordance with § 351.306(c)(2) as applicable.

Under new paragraph (f)(1)(iii), Commerce will provide that if service of a public document, a public version of a business proprietary document, or a business proprietary document cannot be effectuated on ACCESS for any reason, an acceptable alternative method of service must be used, such as first class mail, hand delivery or electronic transmission.

With regard to service by electronic transmission, Commerce's current regulations provide that service of a public document, a public version of a business proprietary document, or a business proprietary document containing the submitter's own business proprietary information, may be made by facsimile or other electronic transmission process, with the consent of the person being served. This provision was first introduced in 1997 (including only service of a submitter's own business proprietary document and service of public versions), 18 and later amended in 2011 to include service of public documents and make specific reference to APO and public service lists. 19

Commerce has since received several informal suggestions and comments from pro se parties and non-APO-authorized representatives located outside the United States requesting that other parties be allowed to serve them their own business proprietary information by email or other electronic process. Commerce has generally discouraged the emailing of third-party business proprietary information, but recognized that allowing it with the consent of the recipient, when the business proprietary information belongs to the recipient, would result in efficiencies and allow those parties who could not be served through ACCESS (such as pro se parties and non-APO-authorized representatives) to receive service in a more expeditious manner than first class mail or other means specified in the regulations. As such, in the Temporary Rule at paragraph (f)(4)(iv), Commerce allowed an interested party to serve by electronic transmission a pro se party or a non-APO-authorized representative of a party, a document containing the business proprietary information of either the pro se party or the party represented by the non-APO-authorized representative.

In this proposed rule, Commerce has created a new paragraph (f)(1)(iii) that expands the scope of paragraph (f)(4)(iv) of the Temporary Rule to allow service by electronic transmission if the business proprietary document being served contains the business proprietary information of either the submitter or the recipient, with the consent of the recipient. By referring to the submitter and recipient rather than pro se party and non-APO-authorized representative as in the Temporary Rule, Commerce is proposing to expand the eligible group to also include APO-authorized representatives, such that APO-authorized representatives will also be permitted to serve one another by electronic transmission, provided that the business proprietary information in the document belongs to the client of either the representative submitting the document or receiving service, and that the receiving representative gives its consent. Documents containing third-party business proprietary information belonging to a party other than the submitter or the recipient may not be served by electronic transmission under this paragraph.

Current paragraphs (f)(2) and (f)(3) involve certificates of service and service requirements for certain documents, respectively. Revised paragraphs (f)(2) and (f)(3) reverse the order in which each topic is addressed. Current paragraph (f)(3)(i) requires the person filing a case or rebuttal brief to simultaneously serve on all persons on the service list and on any U.S. Government agency that has submitted a case or rebuttal brief by either personal service on the same day the brief is filed or by overnight mail or courier on the next day. Further, if the person has designated an agent to receive service that is located outside the United States, service on that person must be by first class airmail. This requirement has been negated by the Temporary Rule, which allows service of case and rebuttal briefs via ACCESS on the date they are filed.

In this proposed rule, Commerce will remove the special requirements for service of case and rebuttal briefs from paragraph (f)(3)(i). Instead, service of case and rebuttal briefs will occur under the general service provision in revised paragraph (f)(1). Current paragraph (f)(3)(ii), which requires a request for expedited antidumping review, an administrative review, a new shipper review, or a changed circumstances review to be served by personal service or first class mail on each exporter or producer specified in the request and on the petitioner by the end of the anniversary month or within ten days of filing the request for review, whichever is later, will then be renumbered as paragraph (f)(2)(i). Commerce will also revise the citation contained in revised paragraph (f)(2)(i), from paragraph (f)(2) to paragraph (f)(3), which is the renumbered paragraph involving certificate of service requirements.

Commerce proposes creating a new paragraph (f)(2)(ii) to require an interested party that files a scope ruling application or request for circumvention inquiry to serve a copy of the request on all persons included in the annual inquiry service list in accordance with §§ 351.225(n) and 351.226(n), respectively. Commerce added this paragraph to bring the service regulations in conformity with the September 20, 2021, final rule modifying various provisions of Commerce's AD and CVD regulations. 20

Revised paragraph (f)(3) will contain the same language that appears in current paragraph (f)(2), which requires that each document filed with Commerce include a certificate of service listing each person served (including agents), the type of document served, and the date and method of service on each person. It continues to state that Commerce may refuse to accept any document that is not accompanied by a certificate of service. No changes are made to this paragraph besides the numbering. Commerce believes it is useful for a submitter to document the parties who it understands will be served at the time of filing the document. A certificate of service is also essential to determining the method of service when an acceptable alternative method of service (besides ACCESS) is used.

In light of the changes discussed in this proposed rule, Commerce finds that it is no longer necessary to continue the service rules set forth in the Temporary Rule and codified at § 351.303(f). Commerce therefore proposes to terminate and remove § 351.303(f)(4). If this proposal is adopted, § 351.303(f) will be terminated.

Section 351.306(c)(2) of Commerce's current regulations requires a party submitting a document containing the business proprietary information of a pro se party to serve that pro se party with a version of the document containing only the pro se party's business proprietary information. The current regulations do not contain any similar requirement that a party submitting a document containing the business proprietary information of a party with a non-APO-authorized representative must also serve that non-APO-authorized representative with a version of the document containing only the business proprietary information of the party with the non-APO-authorized representative. However, the Temporary Rule at § 351.303(f)(4)(iv) contained such a provision. Commerce thus proposes making it permanent by adding to § 351.306(c)(2) the requirement that the submitting party must also serve a party's non-APO-authorized representative with a version of the document that contains only that non-APO-represented party's business proprietary information.

Commerce's current regulations at § 351.303(f) require a submitter to serve a document on all persons on the APO and public service lists simultaneously at the time of filing. Because the service lists are updated on an ongoing basis, Commerce requires submitters to serve earlier-filed business proprietary documents upon representatives who are added to the APO service lists after a document has been filed. Specifically, § 351.305(b)(3) and (4) require service of such documents already on the record upon a representative within two business days after they are added to the APO service list for a submission filed before the first questionnaire response is filed, and within five business days for submissions filed after the first questionnaire response is filed. 21 Parties or their representatives are currently responsible for monitoring who is added to the APO service list and serving those parties as the segment of the proceeding progresses. There is no service requirement for parties added to the public service list after a document is filed, because these documents can be retrieved on ACCESS.

In this proposed rule, Commerce is requiring those representatives who are granted APO access after a business proprietary document has already been filed, but is no longer available in ACCESS, to contact the party that filed the business proprietary document to request service of that document by any acceptable means agreed upon by the parties ( i.e., electronic service or otherwise). Commerce proposes to remove the requirement of service of earlier-filed business proprietary documents to new authorized applicants from current paragraphs (b)(3) and (4) and address it in a new paragraph (c)(2). Current paragraph (b)(3) is removed and current paragraph (b)(4) is renumbered (b)(3). The proposed regulation removes the responsibility of the submitter to monitor the newly added authorized applicants to identify who needs to be served, and places the responsibility on the authorized applicant to request service. This requirement is addressed in new paragraph (c)(2).

In addition, revised paragraph (b)(3) and new paragraphs (c)(2)(i) and (ii) specify the timeframe in which service must be made, by considering whether the authorized applicant's APO application was approved before or after the first questionnaire response is submitted. Commerce proposes replacing “first questionnaire response” with “first response to the initial questionnaire” so it is not mistaken with other questionnaire responses such as Quantity and Value questionnaire responses. Commerce proposes specifying that the submitting party must serve the authorized applicant within two business days of the request if the APO application is approved before the first response to the initial questionnaire was submitted under paragraph new (c)(2)(i). If the APO application was approved after the first response to the initial questionnaire was submitted, revised paragraph (c)(2)(ii) requires the submitting party to serve the authorized applicant within five business days of the request.

In 1997, Commerce codified its practice of allowing a party to file only one copy of a business proprietary document on the deadline, and then take additional time to review the bracketing of business proprietary information, and make the necessary changes to the bracketing before filing the required number of copies of the final business proprietary document and the public version on the next business day. 22 The one-day lag rule was intended to provide an additional safeguard by giving more time to interested parties to ensure that both their own business proprietary information as well as APO-protected information of third parties is not inadvertently disclosed. In 2011, with the introduction of electronic filing via ACCESS, Commerce continued to allow filing under the one-day lag rule under § 351.303(c)(2)(i), which requires a person to file a business proprietary document within the applicable deadline. 23 Notably, petitions, supplements to a petition, or any other document filed prior to the initiation of an investigation are excluded from the one-day lag rule. 24

Normally, the business proprietary document filed on the due date must be served in accordance with current § 351.303(f)(i), but under the Temporary Rule, Commerce waived this service requirement. 25 A business proprietary document filed under the one-day lag rule contains non-final bracketing and is therefore not treated as an official record document in ACCESS. As such, business proprietary documents filed under the one-day lag rule and containing non-final bracketing cannot be served via ACCESS using the same technology used for serving official record documents. During Commerce's temporary waiver of this service requirement during the past two years, Commerce became aware of uncertainties that resulted from waiving service. For example, both Commerce staff and parties to the proceeding were sometimes unaware that other interested parties were filing their submissions under the one-day lag rule. At times, it was not clear whether an interested party had missed the filing deadline or had opted to use the one-day lag rule.

In this proposed rule, Commerce proposes reinstating the requirement that a business proprietary document filed on the due date under the one-day lag rule must also be served on the persons on the APO service list and those non-APO authorized parties whose business proprietary information is contained in the document using one of the acceptable alternative methods of service under new § 351.303(f)(1)(iii). This way, APO-authorized counsel and non-APO-authorized parties whose business proprietary information is in the document will receive service of the business proprietary document. In addition, Commerce proposes requiring the submitter to also file the certificate of service that would be included in the submission (pursuant to § 351.303(f)(3)), as a standalone public document in ACCESS under revised § 351.303(c)(2)(i). Filing the certificate of service separately will document for the record the date and alternative method of service used by the submitter when it filed the business proprietary document under the one-day lag rule. This would provide an ACCESS notification to Commerce staff and the parties to the proceeding that the document was filed under the one-day lag rule.

Under current § 351.303(c)(2)(ii), a submitter who used the one-day lag rule must then file the complete final business proprietary document by the close of business one business day after the applicable deadline. The final business proprietary document must be identical, in all respects, to the business proprietary document filed on the previous day, except for any bracketing corrections. In addition, the submitter must file the public version at the same time. 26

Under Commerce's current service regulations, a submitter must serve on persons on the APO service list the complete final business proprietary document, if there are bracketing corrections. If there are no bracketing corrections, a person need not serve a copy of the final business proprietary document. 27 A submitter must also serve the public version on persons on the public service list. 28 Because ACCESS will generally effectuate service under the proposed amendments to the regulations, it is no longer necessary for § 351.303(c)(2)(ii) to state that service of the final business proprietary document with bracketing corrections is required in all circumstances. The service rules for the final business proprietary document and the public version will default to the proposed general rules regarding service outlined elsewhere in the proposed rule. To the extent the final business proprietary document contains business proprietary information of a party not on the APO service list, service of the final business proprietary document must be made using an acceptable alternative means of service, with that party's consent.

Current § 351.304(c)(1) provides that parties filing documents containing business proprietary information must file a public version of the document on the first business day after the filing deadline for the business proprietary version. In some instances, parties have interpreted § 351.304(c)(1) to mean that the deadline for the public version of a business proprietary document not filed under the one-day lag rule is the first business day after the filing deadline for the business proprietary document. Commerce proposes to revise § 351.304(c)(1) to clarify that the public version of a business proprietary document is due on the filing deadline of the business proprietary document. Thus, the public version of a business proprietary document not filed under the one-day lag rule is due the same day as the business proprietary document is filed. However, if the business proprietary document is filed under the one-day lag rule, the deadline for the public version of the business proprietary document is the first business day after the filing deadline for the business proprietary document (the same deadline as the final business proprietary document filed under the one-day lag rule). Finally, current § 351.304(c)(1) incorrectly references § 351.303(b), which sets forth general filing requirements. The correct citation is to § 351.303(c)(2), which details filing requirements under the one-day lag rule. Commerce proposes to correct this citation.

Current § 351.304(c)(2) provides that under the one-day lag rule, a submitter may make corrections to the bracketing of a business proprietary document, and file a corrected final business proprietary document and public version on the next business day. However, § 351.304(c)(2) incorrectly references § 351.303(b), which sets forth general filing requirements. The correct citation is to § 351.303(c)(2)(ii) and (iii), which detail filing requirements under the one-day lag rule for the final business proprietary document and public version. In addition, § 351.304(c)(2) incorrectly references “paragraph (c)(2)” ( i.e., § 351.304(c)(2)) which is the very same paragraph). The correct citation is to the preceding paragraph, § 351.304(c)(1), which sets forth the date in which the public version should be filed under the one-day lag rule. Commerce proposes corrections to these citations.

Section 351.305(b)(2) describes the process in which a representative of a party to the proceeding may obtain access to proprietary information under an APO by submitting Form ITA-367 to the Secretary, allowing for the use of an applicant's own word processing equipment to create the application, and requiring it to be served using the most expeditious means possible. Commerce proposes to revise this provision to require an applicant to use electronic Form ITA-367, which is available in ACCESS at https://access.trade.gov. The electronic application will then be filed and served in ACCESS upon submission. As such, Commerce also proposes revising this provision to remove the separate requirement that the application be served using the most expeditious means possible because service will be effectuated via ACCESS.

Commerce proposes updating certain information pertaining to the Central Records Unit (CRU) and Administrative Protective Order and Dockets (APO/Dockets) Unit in § 351.103(a) and (b), including an update of the CRU's room number in paragraph (a) and the deletion of an extraneous period in Commerce's street address in paragraphs (a) and (b). In addition, Commerce proposes adding a statement that visitors to the CRU and the APO/Dockets Unit should consult the ACCESS website for information regarding in-person visits and in-person manual filings, respectively. By posting such information on the ACCESS website, Commerce can provide updates to the public as to the operating status of the CRU and the APO/Dockets Unit. This will be helpful in light of limited operations or restrictions on visitor access to the Commerce building, such as those related to COVID-19.

Commerce proposes to make certain additional revisions to the regulations, as described below.

Commerce's current regulations contain certain outdated cross-references to other regulatory provisions. Commerce proposes to correct the following cross-references.

First, § 351.404(d) states that allegations concerning market viability or exceptions to calculating price-based normal value in viable markets must be filed within the time limits set forth under § 351.301(d)(1). However, based on the 2013 amendments to the regulations, the current regulations do not contain a § 351.301(d), and the correct cross-reference is § 351.301(c)(2)(i). 29

Second, § 351.104(a)(2)(ii)(A), regarding the rejection of material from the record of a proceeding, currently refers to § 351.301(b) for the definition of untimely filed new factual information. However, based on the 2013 amendments to the regulations, the correct cross-reference for time limits for submitting new factual information is § 351.301(c). 30

Commerce also proposes to revise certain provisions in § 351.301. Commerce's regulations at § 351.301 set forth the time limits for submitting factual information during the course of AD and CVD proceedings. Many of the time limits specified in § 351.301(c) are based off the date a submission is filed with Commerce. However, the time limits specified in § 351.301(c)(2)(vi) and (c)(3)(iv) are based off the date the submission of factual information is served on interested parties. For clarity and to provide consistency in the time limits that apply to the submission of factual information, Commerce proposes to revise § 351.301(c)(2)(vi) and (c)(3)(iv) so that the time limits for submitting factual information under these provisions are based off the date a submission is filed with Commerce.

In the 2021 Final Rule, Commerce revised § 351.225, which describes the applicable procedures and standards concerning scope inquiries, created § 351.226, which describes the applicable procedures and standards concerning circumvention inquiries, and created § 351.227, which applies to covered merchandise inquiries. Current § 351.225(f)(2) states that within 30 days of the initiation of a scope inquiry under § 351.225(d)(2), an interested party other than the applicant is permitted one opportunity to submit comments and factual information to rebut, clarify, or correct factual information contained in the scope ruling application. However, the cross-reference to § 351.225(d)(2) is incorrect and the correct reference is § 351.225(d)(1), which governs the initiation of scope inquiries. Therefore, Commerce proposes to correct this cross-reference.

In addition, §§ 351.225(f)(1) and (2), 351.226(f)(1) and (2), and 351.227(d)(1) all use the terminology “within 30 days of” and “within 14 days of,” which has led to some unnecessary confusion if that phrase refers to time period before and after 30 and 14 days, or only after 30 and 14 days. The intention of those regulatory provisions was always just to pertain to periods “after” the triggering event, so Commerce proposes in each incidence to replace the word “of” in those provisions with “after.” Thus, each phrase would now say “within 30 days after” and “within 14 days after” to make the deadlines for filing submissions clearer.

As we have explained, in the 2021 Final Rule Commerce revised its scope inquiry regulations and created new regulations to address circumvention inquiries. One of those changes was to require that if Commerce self-initiates a scope inquiry or circumvention inquiry, it will publish a notice in the Federal Register initiating that inquiry. The language currently in §§ 351.225(b) and 351.226(b) says that Commerce will “initiate” “and publish a notice,” but in fact, Commerce intended for the initiation to be effective in both cases upon the date of publication of those notice in the Federal Register . Accordingly, for clarification, we are proposing modifying the language to say that self-initiation of both inquiries will be “by publishing a notice of initiation in the Federal Register .”

As part of the new procedures set forth in both sets of regulations, Commerce explained that it must make determinations to accept or reject a scope application or circumvention inquiry request within 30 days. Commerce also explained that if it does accept the scope application or circumvention inquiry request, it must also decide within that period of time to initiate or not initiate an inquiry. For scope inquiries, if Commerce makes no determination in 30 days, then the regulations under § 351.225(d)(1)(ii) provides that the scope ruling application will be deemed accepted and the scope inquiry will be deemed initiated. We believe that the language in §§ 351.225(d) and 351.226(d)(1) could be clarified with respect to both the acceptance/rejection and initiation/no-initiation status in those provisions, including a reference to the deemed initiation alternative in § 351.225(d)(1)(ii), so we have proposed the addition of language in both provisions to avoid future misunderstandings.

Section 225(e)(2) allows Commerce to extend a scope ruling for good cause from its initial 120 days by no more than another 180 days. The intention of the 180 day extension was to allow for a total of no more than 300 days from initiation of the scope inquiry in which to issue a scope ruling if the case were fully extended. However, some individuals, both within Commerce and outside of Commerce, have asked if the text in the regulation was intended to only allow extension of the scope ruling up to 180 days following initiation. Accordingly, we believe that § 225(e)(2) should be clarified to add language following the 180 day language to read as follows: “by no more than 180 days, for a final scope ruling to be issued no later than 300 days after initiation, if the Secretary determines that good cause exists to warrant an extension.”

Commerce proposes to add the word “circumvention” before the word “inquiry” in the phrase “after the date of the publication of the notice of initiation of the inquiry” in § 351.226(l)(2)(ii). This is to provide clarification that this provision applies to the initiation of a circumvention inquiry, and not another inquiry. Similar language is found in the parallel provisions applicable to §§ 351.225(l) (scope) and 351.227(l) (covered merchandise) inquiries, so providing this clarifying word would assist in providing consistency among these different inquiry regulations.

As we have explained, in the 2021 Final Rule, Commerce also created new § 351.227, which addresses procedures and standards specific to Commerce's consideration of covered merchandise referrals from U.S. Customs and Border Protection (CBP) under section 517(b)(4)(A) of the Act. This regulation governs Commerce's receipt of a covered merchandise referral from CBP, Commerce's initiation and conduct of a covered merchandise inquiry, and Commerce's covered merchandise determination. Commerce has identified certain aspects of § 351.227(b) that need to be clarified and revised. Under current § 351.227(b), within 20 days after receiving a covered merchandise referral from CBP that Commerce determines to be sufficient, Commerce will take one of two actions. Commerce will either initiate a covered merchandise inquiry and publish a notice of initiation in the Federal Register , or, if Commerce determines upon review of the covered merchandise referral that the issue can be addressed in an ongoing segment of the proceeding, such as a scope or circumvention inquiry, Commerce will publish in the Federal Register a notice of its intent to address the covered merchandise referral in such other segment.

Commerce intends to revise § 351.227(b) in two ways. First, Commerce clarifies that, within 20 days of receiving a covered merchandise referral from CBP that Commerce determines to be sufficient, Commerce will issue its decision whether to initiate a covered merchandise inquiry or to address the covered merchandise referral in an ongoing segment of the proceeding. It was not Commerce's intent in drafting this regulation, and Commerce does not interpret this regulation, to mean that Commerce will publish notice of its decision in the Federal Register within 20 days of receipt its decision to initiate a covered merchandise inquiry or to address a covered merchandise referral in an ongoing segment of the proceeding. Thus, Commerce intends to revise § 351.227(b) to clarify this issue. Second, Commerce intends to revise § 351.227(b) to clarify that Commerce will take one of the two actions described above within 20 days of acknowledging receipt of a sufficient covered merchandise referral from CBP. This revision is necessary to preserve flexibility and to allow Commerce the full 20 days provided in the regulation to take one of the two actions described above after making a determination that the covered merchandise referral is sufficient. 31

Commerce proposes to revise § 351.305(a) to add a reference to requests for a circumvention inquiry filed under § 351.226. In the 2021 Final Rule, Commerce created new § 351.226, which covers the procedures for Commerce to address potential circumvention of AD/CVD orders. Prior to the 2021 Final Rule, circumvention inquiries were governed under Commerce's scope inquiries regulation at § 351.225. Section 351.305(a) of Commerce's current regulations discusses the timing of when Commerce places an administrative protective order on the record of its proceedings. This paragraph indicates that within five business days after the day on which an application for a scope ruling is properly filed under § 351.225, Commerce will place an administrative protective order on the record of the segment of the proceeding. Thus, Commerce proposes to revise § 351.305(a) to add a reference to requests for a circumvention inquiry filed under § 351.226.

Two of Commerce's regulations have been invalidated by the Federal Circuit, and Commerce proposes to remove the invalidated paragraphs from the CFR.

On June 3, 2014, the Federal Circuit invalidated § 351.204(d)(3) of Commerce's regulations in MacLean-Fogg Co. v. United States, 753 F. 3d 1237 (Fed. Cir. 2014) ( MacLean-Fogg ). The regulatory language at issue is as follows: “ Exclusion of voluntary respondents' rates from all-others rate. In calculating an all-others rate under section 705(c)(5) or section 735(c)(5) of the Act, the Secretary will exclude weighted-average dumping margins or countervailable subsidy rates calculated for voluntary respondents.” Section 705(c)(5)(A) of the Act states that the “all-others rate shall be an amount equal to the weighted average countervailable subsidy rates established for exporters and producers individually investigated.” The Federal Circuit held that there is no ambiguity in the statutory words “individually” and “investigated,” and that a voluntary respondent who receives an individual rate has undergone “individual investigation.” The Federal Circuit therefore concluded that § 351.204(d)(3) was invalid, and Commerce is proposing removing that paragraph and replacing it with the language found in current § 351.204(d)(4).

Furthermore, on May 14, 2010, the Federal Circuit in Dorbest Ltd. v. United States, 604 F. 3d 1363, 1372 (Fed. Cir. 2010) ( Dorbest ), invalidated § 351.408(c)(3) of Commerce's regulations. Section 733(c) of the Act provides that Commerce will value the factors of production (FOPs) in non-market economy cases using the best available information regarding the value of such factors in a market economy country or countries considered to be appropriate by the administering authority. The Act requires that when valuing the FOPs, Commerce utilize, to the extent possible, the prices or costs of factors of production in one or more market-economy countries that are at a level of comparable economic development and significant producers of comparable merchandise. 32

However, it was Commerce's practice to calculate wages using a regression analysis that captured the worldwide relationship between per capita Gross National Income and hourly wage rates in manufacturing. 33 The language of § 351.408(c)(3) reflected this use of a regression analysis: “ Labor. For Labor, the Secretary will use regression-based wage rates reflective of the observed relationship between wages and national income in market economy countries. The Secretary will calculate the wage rate to be applied in nonmarket economy proceedings each year. The calculation will be based on current data and will be made available to the public.”

The Federal Circuit in Dorbest held that because the regulation required Commerce to use wage data in a regression analysis from countries that did not meet the statutory criteria, the regulation was invalid. Thus, Commerce is proposing removing § 351.408(c)(3) and replacing it with the language found in current § 351.408(c)(4).

OMB has determined that this proposed rule is not significant for purposes of Executive Order 12866.

This proposed rule does not contain policies with federalism implications as that term is defined in section 1(a) of Executive Order 13132, dated August 4, 1999 (64 FR 43255 (August 10, 1999)).

This proposed rule does not contain a collection of information subject to the Paperwork Reduction Act, 44 U.S.C. chapter 35.

The Chief Counsel for Regulation has certified to the Chief Counsel for Advocacy of the Small Business Administration under the provisions of the Regulatory Flexibility Act, 5 U.S.C. 605(b), that the proposed rule would not have a significant economic impact on a substantial number of small business entities. A summary of the need for, objectives of, and legal basis for this proposed rule is provided in the preamble, and is not repeated here.

The entities upon which this rulemaking could have an impact include foreign governments, foreign exporters and producers, some of whom are affiliated with U.S. companies, U.S. importers, and domestic producers of the domestic like product. However, the proposed modifications will not have a significant economic impact on these entities. Rather, they would make the administration of Commerce's AD/CVD proceedings more efficient by allowing parties to utilize available electronic or other expedient means of service, and by clarifying and updating certain regulatory provisions.

Enforcement & Compliance currently does not have information on the number of entities that would be considered small under the Small Business Administration's size standards for small businesses in the relevant industries. However, some of these entities may be considered small entities under the appropriate industry size standards. Although this proposed rule may indirectly impact small entities that are parties to individual AD and CVD proceedings, it will not have a significant economic impact on any such entities because the proposed rule applies to administrative enforcement actions, only clarifying and establishing streamlined procedures; it does not impose any significant costs on regulated entities. Therefore, the proposed rule would not have a significant economic impact on a substantial number of small business entities. For this reason, an Initial Regulatory Flexibility Analysis is not required and one has not been prepared.

For the reasons stated in the preamble, the Department of Commerce is proposing to amend 19 CFR part 351 as follows:

The revisions read as follows:

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

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

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

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

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

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

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

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

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

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

TTB received a petition from Dr. Kevin Pogue, a professor of geology at Whitman College, proposing to establish the “Wanapum Village” AVA. Dr. Pogue submitted the petition on behalf of local vineyard owners and winemakers. The proposed AVA is located in Grant County, Washington, and is entirely within the existing Columbia Valley AVA (27 CFR 9.74). Within the proposed AVA, there are 2 commercial vineyards which cover a total of 538 acres. The distinguishing features of the proposed Wanapum Village AVA are its topography, soils, and climate.

The proposed Wanapum Village AVA takes its name from a small community constructed in the early 1960s to house personnel associated with the construction and operation of the nearby Wanapum Dam on the Columbia River. The mid-century style buildings of “Wanapum Village * * * [are] eligible for listing in the National Register of Historic Places.”  1 Wanapum Village appears as the name of the community on the 2017 USGS 1:24,000-scale Beverly quadrangle map and the 1979 1:100,000-scale Priest Rapids map. In 2010, the Grant County Public Utility District, owners of the buildings and land comprising Wanapum Village, declared the property surplus and offered it for sale. The Zirkle Fruit Company, owners of one of the vineyards in the proposed AVA, purchased the property in 2016, as noted in an article included in the petition titled “Zirkle buying Wanapum Village.”  2 As additional evidence that the region of the proposed AVA is known as “Wanapum Village,” the petition included an article about a 2019 wildfire in the region of the proposed AVA titled “Level 1 Evacuation for Wanapum Village due to wildfire.”  3 A 2021 wildfire that “burned about two acres south of Wanapum Village”  4 was named the “Wanapum Village Fire.”  5 Finally, two streets within the proposed AVA are named Wanapum Village Lane and Wanapum Village Loop.

The proposed Wanapum Village AVA is located along the gentle to moderately sloping hillsides and low rolling hills where the south- and west-facing slopes of the Frenchman Hills meet the Columbia River at its confluence with Crab Creek. The proposed northern boundary primarily follows a series of roads which separate the proposed AVA from steeper, rockier terrain and federally-owned lands that are unavailable for commercial viticulture. The proposed eastern boundary follows a series of section lines on the USGS maps and largely corresponds with the western and southern boundaries of the neighboring Royal Slope AVA (27 CFR 9.271). The proposed southern boundary follows section lines on the USGS maps and separates the proposed AVA from the small town of Schwana, as well as from federally-owned lands that are not available for commercial viticulture. The proposed western boundary follows State Highway 243 and separates the proposed AVA from federally-owned lands along the eastern bank of the Columbia River.

According to the petition, the distinguishing features of the proposed Wanapum Village AVA are its topography, soils, and climate.

Low, rolling hills with gentle to moderate slopes characterize the topography of the proposed Wanapum Village AVA. Elevations within the proposed AVA range from 515 to 950 feet, and the average elevation is approximately 600 feet. By contrast, to the north and northeast of the proposed AVA, the terrain of the established Royal Slope AVA consists of a single gentle incline that rises to the summit of the Frenchman Hills. Elevations are higher in the Royal Slope AVA than in the proposed Wanapum Village AVA, rising to a maximum of 1,756 feet. To the south of the proposed AVA is Sentinel Gap, a 1,500-foot deep, 1.5-mile wide, rugged, cliff-walled canyon carved by the Columbia River. The gap forms a natural geographic barrier between the proposed Wanapum Village AVA and the gently-sloping terrain of the established Wahluke Slope AVA (27 CFR 9.192). To the immediate west of the proposed AVA is the relatively narrow floodplain of the Columbia River, which, according to the USGS maps included in the petition, has elevations between 500 and 530 feet.

According to the petition, the topography of the proposed AVA affects viticulture. The proximity of the proposed AVA to Sentinel Gap increases wind speeds within the proposed AVA, as the canyon funnels wind into the proposed AVA. High winds can reduce mildew pressure on the vines and also promote the development of smaller grapes with thicker skins than are found on the same varietals grown in less windy conditions. Additionally, because the proposed AVA has lower elevations than the neighboring Wahluke Slope and Royal Slope AVAs, the entire proposed Wanapum Village AVA was repeatedly inundated by ice-age floodwaters that reached a maximum depth of 1,250 feet. The water flowed at a relatively high velocity, depositing coarse-grained sediments that formed the basis for the soils in the proposed AVA, compared to the finer clays and silts that were deposited at higher elevations outside the proposed AVA.

As previously noted, the coarse-grained soils of the proposed Wanapum Village AVA are developed from sand and gravel deposited by ice-age floods mixed with wind-deposited sand. The four main soil series dominating the proposed AVA are the Burbank, Winchester, Schwana, and Quincy series. All of those soil series are described as excessively or somewhat excessively well-drained.

The petition states that the proposed AVA soils are much coarser than the soils in the neighboring Royal Slope AVA, which is located to the north and east of the proposed AVA. In soil samples taken from both the proposed AVA and the established Royal Slope AVA, only one percent of the weight of the soil sample from the Royal Slope AVA consisted of medium to coarse grains, compared to 46 percent of the sample from the proposed Wanapum Village AVA. The petition also notes that soils in the established Royal Slope AVA formed primarily in fine-grained slackwater sediments overlain by wind-deposited silt, and less than 2 percent of the soils derived from “outburst sands and gravels” such as those found in the proposed AVA.

To the immediate south of the proposed AVA, in Sentinel Gap, the soils are defined as “rubble land-rock outcrop complex.” These soils are generally considered unsuitable for agriculture. Farther south of the proposed AVA, within the established Wahluke Slope AVA, the soils are similar to those of the proposed Wanapum Village AVA. The petition did not include information on soils to the west of the proposed AVA.

The soils of the proposed Wanapum Village AVA have an effect on viticulture. Coarse-grained, excessively well-drained soils require more irrigation water and more easily promote vine stress than finer-grained soils. Vines planted in coarse-textured soils often have deeper roots since water has a greater tendency to move vertically through the profile. Coarse soils are less susceptible to erosion than soils formed in silt and fine sand, so cover crops are not critical and are not currently used in the vineyards of the proposed AVA. Finally, the petition notes that coarse-textured soils without cover crops warm faster than fine-grained soils that use cover crops. The warmer soils promote earlier onset of phenological stages in grapes, such as bud break and veraison.

According to the petition, the climate of the proposed Wanapum Village AVA is warm and windy. The petition included data on the average growing season temperature, 6 average maximum temperature, growing degree day (GDD)  7 accumulation, average wind speed, and maximum wind speed for one location in the proposed AVA, three locations in the established Royal Slope AVA (north and east of the proposed AVA), and three locations in the established Wahluke Slope AVA (south of the proposed AVA). The petition did not include data for the region to the west of the proposed AVA.

According to the data in the tables, the proposed Wanapum Village AVA has a higher average growing season temperature and accumulates more GDDs than any of the weather station locations within the established Royal Slope AVA. The weather station in the proposed AVA also had higher average and maximum wind speeds than any station in the Royal Slope AVA. The data suggests that temperatures in the established Wahluke Slope AVA are more varied than in the proposed AVA, with one station reporting very similar temperatures and GDD accumulations (Desert Aire), one reporting slightly lower temperatures and GDD accumulations (Mattawa), and one reporting slightly warmer temperatures and GDD accumulations (Wahluke Slope). However, the average and maximum wind speeds in the proposed AVA are consistently higher than in the Wahluke Slope AVA, with the exception of the 2015, 2016, and 2018 average wind speeds for the Wahluke Slope station.

According to the petition, the warm temperatures and high GDD accumulations within the proposed Wanapum Village AVA mean that vineyard owners are able to plant warmer-climate cultivars that require more heat to ripen. Additionally, cooler climate grape varietals planted in the proposed AVA will ripen faster and accumulate more sugars than the same varietals planted in the cooler Royal Slope AVA.

The following table summarizes the distinguishing features of the proposed Wanapum Village AVA and the surrounding regions.

The Columbia Valley AVA was established by T.D. ATF-190, which published in the Federal Register on November 13, 1984 (49 FR 44895). T.D. ATF-190 describes the Columbia Valley AVA as a large, treeless basin surrounding the Yakima, Snake, and Columbia Rivers. Growing season lengths within the Columbia Valley AVA are over 150 days, and GDD accumulations exceed 2,000. Annual precipitation amounts are less than 15 inches. Elevations within the Columbia Valley AVA are below 2,000 feet.

The proposed Wanapum Village AVA shares some of the general viticultural features of the larger Columbia Valley AVA. For instance, elevations within the proposed AVA are below 2,000 feet, and annual GDD accumulations from 2015 to 2018 did not fall below 2,800. However, the proposed AVA does have some distinctive features, namely the soils. Within the proposed AVA, soils are primarily formed from sand and gravel deposited by water and are classified as sand and stony loamy sand. By contrast, T.D. ATF-190 described the soils of the Columbia Valley AVA as fine-grained soils derived from wind-deposited silts and fine sand.

TTB concludes that the petition to establish the 2,415-acre “Wanapum Village” AVA merits consideration and public comment, as invited in this document.

See the narrative boundary descriptions of the petitioned-for AVA in the proposed regulatory text published at the end of this document.

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

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

If TTB establishes this proposed AVA, its name, “Wanapum Village,” will be recognized as a name of viticultural significance under § 4.39(i)(3) of the TTB regulations (27 CFR 4.39(i)(3)). The text of the proposed regulation clarifies this point. Consequently, wine bottlers using “Wanapum Village” in a brand name, including a trademark, or in another label reference as to the origin of the wine, would have to ensure that the product is eligible to use the viticultural area's name, “Wanapum Village.” The approval of the proposed Wanapum Village AVA would not affect any existing AVA, and any bottlers using “Columbia Valley” as an appellation of origin or in a brand name for wines made from grapes grown within the Wanapum Village AVA would not be affected by the establishment of this new AVA. If approved, the establishment of the proposed Wanapum Village AVA would allow vintners to use “Wanapum Village” or “Columbia Valley” as appellations of origin for wines made from grapes grown within the proposed AVA, if the wines meet the eligibility requirements for the appellation.

TTB invites comments from interested members of the public on whether TTB should establish the proposed Wanapum Village AVA. TTB is interested in receiving comments on the sufficiency and accuracy of the name, boundary, topography, and other required information submitted in support of the AVA petition. In addition, because the proposed Wanapum Village AVA would be within the existing Columbia Valley AVA, TTB is interested in comments on whether the evidence submitted in the petition regarding the distinguishing features of the proposed AVA sufficiently differentiates it from the existing AVA. TTB is also interested in comments on whether the geographic features of the proposed AVA are so distinguishable from the Columbia Valley AVA that the proposed Wanapum Village AVA should not be part of the established AVA. Please provide any available specific information in support of your comments.

Because of the potential impact of the establishment of the proposed Wanapum Village AVA on wine labels that include the term “Wanapum Village” as discussed above under Impact on Current Wine Labels, TTB is particularly interested in comments regarding whether there will be a conflict between the proposed area names and currently used brand names. If a commenter believes that a conflict will arise, the comment should describe the nature of that conflict, including any anticipated negative economic impact that approval of the proposed AVA will have on an existing viticultural enterprise. TTB is also interested in receiving suggestions for ways to avoid conflicts, for example, by adopting a modified or different name for the proposed AVA.

You may submit comments on this proposal by using one of the following methods:

• Federal e-Rulemaking Portal: You may send comments via the online comment form posted with this proposal within Docket No. TTB-2022-0014 on “ Regulations.gov ,” the Federal e-rulemaking portal, at https://www.regulations.gov. A direct link to that docket is available under Notice No. 219 on the TTB website at https://www.ttb.gov/wine/notices-of-proposed-rulemaking. Supplemental files may be attached to comments submitted via Regulations.gov . For complete instructions on how to use Regulations.gov , visit the site and click on the “Help” tab.

• U.S. Mail: You may send comments via postal mail to the Director, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW, Box 12, Washington, DC 20005.

Please submit your comments by the closing date shown above in this proposal. Your comments must reference Notice No. 219 and include your name and mailing address. Your comments also must be made in English, be legible, and be written in language acceptable for public disclosure. TTB does not acknowledge receipt of comments, and TTB considers all comments as originals.

In your comment, please clearly state if you are commenting for yourself or on behalf of an association, business, or other entity. If you are commenting on behalf of an entity, your comment must include the entity's name, as well as your name and position title. If you comment via Regulations.gov , please enter the entity's name in the “Organization” blank of the online comment form. If you comment via postal mail or hand delivery/courier, please submit your entity's comment on letterhead.

You may also write to the TTB Administrator before the comment closing date to ask for a public hearing. The TTB Administrator reserves the right to determine whether to hold a public hearing.

All submitted comments and attachments are part of the rulemaking record and are subject to public disclosure. Do not enclose any material in your comments that you consider confidential or that is inappropriate for disclosure.

TTB will post, and you may view, copies of this document, the related petition and selected supporting materials, and any comments TTB receives about this proposal within the related Regulations.gov docket. In general, TTB will post comments as submitted, and it will not redact any identifying or contact information from the body of a comment or attachment.

Please contact TTB's Regulations and Rulings division by email using the web form available at https://www.ttb.gov/contact-rrd, or by telephone at 202-453-2265, if you have any questions about commenting on this proposal or to request copies of this document, the related petition and its supporting materials, or any comments received.

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

This proposed rule is not a significant regulatory action as defined by Executive Order 12866. Therefore, it requires no regulatory assessment.

For the reasons discussed in the preamble, we propose to amend title 27, chapter I, part 9, Code of Federal Regulations, as follows:

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

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

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

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

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

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

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

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

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

TTB received a petition from Berryessa Gap Vineyards proposing the establishment of the “Winters Highlands” AVA. The proposed Winters Highlands AVA is located in portions of Solano and Yolo Counties, California. The proposed AVA contains 7,296 acres, with 134 acres of planted vineyards and an additional 60 acres planned for future planting at the time the petition was submitted. There are also three wineries within the proposed AVA. Grape varietals grown in the proposed AVA include Petite Syrah, Tempranillo, Malbec, and Chardonnay.

According to the petition, the distinguishing features of the proposed Winters Highlands AVA are its climate and soils. Unless otherwise noted, all information and data pertaining to the proposed AVA contained in this document are from the petition for the proposed Winters Highlands AVA and its supporting exhibits.

The petition states that the proposed Winters Highlands AVA is located in the easternmost foothills of the northern Coast Range, where the Coast Range adjoins the Sacramento Valley. The city of Winters is adjacent to the eastern boundary of the proposed AVA but is not located within the proposed AVA; however, the Winters ZIP code is used for both the city and the region within the proposed AVA. The Winters Community Center and Winters Community Library both serve the region of the proposed AVA, as does the Winters Unified School District and the Winters Parent Nursery School. Other businesses and organizations serving the region include the Winters Post Office, Winters Laundromat, Winters Theater Company, Winters Concrete, Winters Eyecare, Winters Healthcare, Winters Printing, and Winters Self Storage. The Winters Highlands subdivision lies along the western boundary of the city limits, and the Highlands Canal flows along the eastern boundary of the proposed AVA.

The proposed Winters Highlands AVA is a region of steep to gentle slopes along the eastern edge of the Coast Range and encompasses the alluvial deposits of Putah Creek, which flows through the southern portion of the proposed AVA. The proposed northern boundary follows Chickahominy Slough to separate the higher, rolling terrain of the proposed AVA from the flatter, lower terrain of the Sacramento Valley. The proposed eastern boundary follows the 170-foot elevation contour, the Highland Canal, and County Road 88 and also separates the proposed AVA from the Sacramento Valley floor. The proposed southern boundary follows a series of roads to approximate the extent of the alluvial deposits of Putah Creek. The proposed western boundary follows a series of straight lines drawn between points and separates the proposed AVA from the higher, steeper elevations of the Coast Range.

The distinguishing features of the proposed Winters Highlands AVA are its climate—temperature, precipitation, and relative air humidity—and soils.

According to the petition, the location of the proposed Winters Highlands AVA influences its temperatures. The proposed AVA is located on the eastern side of the Coast Ranges, which shelter the proposed AVA from much of the cool air blowing eastward from the Pacific Ocean. However, the Berryessa Gap, a break in the Coast Ranges where Putah Creek flows into the manmade Lake Berryessa, does allow some cool air from the Pacific Ocean directly into the proposed AVA, particularly in the evenings. The petition states that, as a result, the proposed AVA tends to have cooler evenings than the more inland regions to the east of the proposed AVA. The petition goes on to say that the proposed AVA has a greater number of growing degree days (GDDs)  1 than surrounding areas, with a wide difference between daily high and low temperatures, a set of conditions that promotes the growing of Mediterranean-type grapes.

The petition included GDD information for the proposed Winters Highlands AVA and the surrounding regions. The data is included in the following table.

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

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

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

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

• Evidence that the region within the proposed expansion area is nationally or locally known by the name of the established AVA;

• An explanation of the basis for defining the boundary of the proposed expansion area;

• A narrative description of the features of the proposed expansion area affecting viticulture, including climate, geology, soils, physical features, and elevation, that make the proposed expansion area similar to the established AVA and distinguish it from adjacent areas outside the established AVA boundary;

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

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

TTB received a petition from Terry Dereniuk of Terry Dereniuk Consulting, submitted on behalf of local vineyard owners, proposing to expand the established Red Hills Lake County AVA. T.D. TTB-15, which published in the Federal Register on July 12, 2004 (69 FR 41754), established the Red Hills Lake County AVA (27 CFR 9.169). The Red Hills Lake County AVA is located in Lake County, California, and is within the established Clear Lake (27 CFR 9.99) and North Coast AVAs (27 CFR 9.30). Although the proposed expansion area is also within the established Clear Lake and North Coast AVAs, the proposed expansion would not affect the boundaries of those AVAs.

The proposed expansion area is adjacent to the western portion of the established Red Hills Lake County AVA and covers approximately 679 acres. The petition states that the proposed expansion area consists of three separately-owned parcels of land. One of the parcels, owned by Jim and Diane Fore, is currently planted with vines. The second parcel, owned by Prince Vineyard, LLC, is planned for planting in the near future. The third parcel, owned by Roland and Nell Shaul, is adjacent to the Prince Vineyard property. The Shaul parcel does not have any vineyards planted or planned for the near future but does contain a number of sites that are suitable for viticultural activity, so the petitioner requests its inclusion in the proposed expansion area. Unless otherwise noted, all information and data pertaining to the proposed expansion area contained in this document come from the petition and its supporting exhibits.

The expansion petition notes that the original petition to establish the Red Hills Lake County AVA contained the following quote: “The proposed Red Hills [sic] AVA takes its name from a road, contained entirely within the proposed viticultural area, which runs through the heart of the area. * * * Red Hills Road was itself named for the most striking and unifying features of the area-its prevalent red soils and gently hilly terrain.” The expansion petition goes on to state that T.D. TTB-15, which established the Red Hills Lake County AVA, describes the AVA's boundary as being based on “a combination of geography, terrain, soil, and climate factors[.]”

According to the proposed expansion petition, the description of the Red Hills Lake County AVA boundary in T.D. TTB-15 suggests that the AVA is defined by “this combination of features rather than an officially named geographic feature.” The proposed expansion petition asserts that, due to the lack of a defined geographic feature known as “Red Hills,” adjacent regions that share the red volcanic soils and hilly terrain that are characteristic of the Red Hills Lake County AVA could also reasonably be referred to as the “Red Hills.” The petition states that the proposed expansion area shares the same red volcanic soils and hilly terrain of the established AVA. As a result, the petition believes that the name “Red Hills” is as applicable to the proposed expansion area as it is to the established Red Hills Lake County AVA.

The established Red Hills Lake County AVA is located just south of Clear Lake, at the base of Mount Konocti. According to T.D. TTB-15, the northern boundary of the AVA excludes elevations on Mt. Konocti above 2,600 feet. The eastern boundary follows a series of ridgelines to exclude regions with different soils, including Anderson Flat and the town of Lower Lake, as well as a steep ridge. The AVA's southern boundary generally coincides with the Clear Lake AVA's southern boundary and separates both AVAs from the Mayacamas Mountains, whose elevations are generally unsuitable for commercial viticulture. The Red Hills Lake County AVA's southwestern corner skirts Boggs Lake, while the western boundary excludes Camel Back Ridge and some lower elevations south and southeast of Kelseyville.

The proposed expansion area is adjacent to Bottle Rock Road, which forms a portion of the southwestern boundary of the Red Hills Lake County AVA. The proposed boundary expansion would begin on the current boundary at the intersection of Bottle Rock Road and Harrington Road. Instead of continuing north-northwesterly along Bottle Rock Road to its intersection with Cole Creek Road, as the current boundary does, the proposed boundary expansion would proceed south along Bottle Rock Road for a short distance before proceeding west to the 2,800-foot elevation contour. The boundary would then follow the elevation contour north-northeasterly before rejoining the current AVA boundary at Bottle Rock Road. This portion of the proposed expansion area would encompass the parcel of land with the vineyard owned by Jim and Diane Fore. The proposed expansion boundary would then follow the current AVA boundary north along Bottle Rock Road to its intersection with an unnamed trail. At that point, the proposed expansion would divert from the current boundary and proceed west and north in a series of straight lines along the low, eastern slopes of Camel Back Ridge. This boundary modification would encompass the parcels of land owned by Prince Vineyard LLC and Roland and Nell Shaul. The proposed expansion boundary would then proceed east and rejoin the current AVA boundary at the point where the 2,000-foot elevation contour intersects Bottle Rock Road.

The expansion petition states that the topography, soils, and climate of the proposed expansion area are similar to those of the established Red Hills Lake County AVA.

The original petition to establish the Red Hills Lake County AVA described the topography as “an area of gently sloping, rolling terrain, contained entirely within the Clear Lake volcanic field.” The original petition noted that within the Red Hills Lake County AVA, slopes range from 0 to greater than 30 percent, but that “[n]o one group clearly predominates.” When describing the region west of Bottle Rock Road, which is the location of the proposed expansion area, the original petition stated, “almost all of the terrain shown has slopes of 15% and above.”

The expansion petition includes a section of a map of the Clear Lake volcanic field (Figure 1). 1 The image shows not only that the region of the proposed expansion area is within the Clear Lake volcanic field but also that it shares the same underlying geology as the established Red Hills Lake County AVA.

The expansion petition also includes an image of a slope and terrain map of the proposed expansion area and the adjacent portion of the Red Hills Lake County AVA (Figure 2). 2 The expansion petition notes that, while the original AVA petition was correct that a large part of the region to the west of Bottle Rock Road does contain steep slopes, it also contains areas with gentler slopes. Figure 2 indicates that the proposed expansion area contains regions with slopes from 0 to 20 percent, as well as slopes from 20 to over 30 percent. Additionally, the expansion petition includes a wider view of the slope and terrain map (Figure 6). Both figures show that the slope angles of the proposed expansion area are similar to those within the Red Hills Lake County AVA, as described in T.D. TTB-15.

Finally, the expansion petition includes an image of the slope and terrain of the Benson Ridge region of Lake County (Figure 7), which was not within the original Red Hills Lake County AVA boundary. The expansion petition notes that during the public comment period for Notice No. 961, which proposed the Red Hills Lake County AVA, a vineyard owner provided evidence to include the Benson Ridge region in the AVA. TTB determined that the evidence supported the region's inclusion and modified the final Red Hills Lake County AVA boundary in T.D. TTB-15. The expansion petition notes that the topography of the proposed expansion area is similar to that of the Benson Ridge region, which has regions with slope angles ranging from 0 to 10 percent, as well as regions with slope angles over 30 percent.

The original Red Hills Lake County petition stated that the AVA “encompasses the largest contiguous body of red volcanic soils in Lake County.” The major soil groups within the AVA are Glenview-Bottlerock-Arrowhead, Konocti-Benridge, and Collayomi-Aiken-Whispering. The original petition described these soils as containing “a high content of rock fragments or gravel in their structure.” The original petition excluded the region west of Bottle Rock Road from the AVA because the soils “developed from parent materials of the Franciscan assemblage, which result in poorly drained and often steep soil conditions.” The original petition also noted that soils west of the AVA contain high levels of serpentine, which offers “poor soil quality and nutrition.”

The proposed boundary expansion petition states that, while the original petition's description of the soils west of Bottle Rock Road is generally true, the original petition's use of a man-made feature to define the boundary resulted in the omission of acreage that had similar soil characteristics to the Red Hills Lake County AVA. The expansion petition claims that 90 percent of the acreage within the proposed expansion area contains soils of the same soil units described in the original petition and which are of volcanic origin. According to Figure 12 of the expansion petition, the most prominent soil unit in the proposed expansion area is the Glenview-Bottlerock-Arrowhead unit, which comprises approximately 401 acres of the 679-acre proposed expansion area. The Konocti-Benridge, Collayomi, and Collayomi-Aiken-Whispering soil series cover an additional 211 acres of the proposed expansion area. The expansion petition includes an image of a soil map of the proposed expansion area and the adjacent region within the Red Hills Lake County AVA (Figure 13) which shows that, while serpentine soils are found west of Bottle Rock Road as the original petition stated, they are not found within the proposed expansion area.

Finally, the expansion petition includes several photographs of the soils within the proposed expansion area (Figures 8-10) showing pebbles, gravel, and cobbles within the soil, including large quantities of obsidian, a naturally-occurring volcanic glass. The photographs suggest that the proposed expansion area's soils have a rocky, gravelly nature similar to the soils of the Red Hills Lake County AVA.

According to the brief description of the Red Hills Lake County AVA's climate provided in T.D. TTB-15, the AVA has a climate that is more influenced by Clear Lake than by the Pacific Ocean. The temperature contrasts between the lake and the land create winds that are credited for reducing the risk of frost within the AVA. T.D. TTB-15 states that, by contrast, “other Lake County viticultural areas require frost protection measures.”

The proposed expansion petition explains that, today, some growers within the Red Hills Lake County AVA have frost protection measures in place, although those may not be needed every year. For example, the expansion petition states that vineyard owner Gregory Graham, whose vineyards are in the lower elevations of the northeastern portion of the AVA, has frost curtains and a movable wind machine. The Fore's vineyard, within the proposed expansion area, also has two wind machines as well as vineyard heaters, but only uses them “about 2 out of every 5 years.” By contrast, the expansion petition states that vineyards within the Big Valley District-Lake County AVA (27 CFR 9.232), which is to the northwest of both the Red Hills Lake County AVA and the proposed expansion area, require frost protection every year. TTB notes that Notice No. 134, which proposed the Big Valley District-Lake County AVA, described the low number of frost-free days as a distinguishing feature of the AVA.

The proposed expansion petition also compares the harvest dates within the proposed expansion area to those within the Red Hills Lake County AVA. T.D. TTB-115 did not consider harvest dates as a distinguishing feature of the AVA; however the expansion petition notes that several articles submitted during the public comment period for Notice No. 961 discuss harvest dates as an example of how the climate of the AVA affects viticulture. For example, one article quotes a vineyard manager for Kendall-Jackson as saying they never harvest their Red Hills Lake County AVA vineyards before the first of October. 3 Another article states that within the Red Hills Lake County AVA, “[g]rowers there don't usually begin harvest before October.”  4

The expansion petition states that cabernet sauvignon has become the “signature” winegrape for the Red Hills Lake County AVA, which it also notes is grown within the proposed expansion area. The expansion petition provides harvest dates from 2005-2018 for this grape varietal grown within the proposed expansion area. During that timeframe, harvest dates within the proposed expansion area occurred before October 1 only three times, suggesting a similar climate to that described for the Red Hills Lake County AVA.

Finally, T.D. TTB-15 also stated that rainfall amounts within the Red Hills Lake County AVA average between 25 and 40 inches a year. The expansion petition documents rainfall amounts from a weather station in the proposed expansion area. However, because the petitioner collected that data for less than a year, TTB is unable to determine if the rainfall amounts within the proposed expansion area are similar to those of the Red Hills Lake County AVA.

TTB concludes that the petition to expand the boundaries of the established Red Hills Lake County AVA merits consideration and public comment, as invited in this notice of proposed rulemaking.

See the narrative description of the boundary of the petitioned-for expansion area in the proposed regulatory text published at the end of this proposed rule.

The proposed boundary change to the Red Hills Lake County AVA would affect the portion of the current AVA boundary shown on the 1:24,000 scale Kelseyville quadrangle map in the list of maps in the regulatory text of 27 CFR 9.169. The petitioner included a copy of this map in the expansion petition. You also may view a map of the proposed expansion of the Red Hills Lake County AVA boundary on the AVA Map Explorer on the TTB website, at https://www.ttb.gov/wine/ava-map-explorer.

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

The approval of the proposed expansion of the Red Hills Lake County AVA would not affect any other existing viticultural area. The proposed expansion of the Red Hills Lake County AVA would allow vintners to use “Red Hills Lake County,” “Clear Lake,” and “North Coast” as appellations of origin for wines made primarily from grapes grown within the proposed expansion area if the wines meet the eligibility requirements for the appellation.

TTB invites comments from interested members of the public on whether it should expand the Red Hills Lake County AVA as proposed. TTB is specifically interested in receiving comments on the similarity of the proposed expansion area to the established Red Hills Lake County AVA, as well as the differences between the proposed expansion area and the areas outside the established AVA. Please provide specific information in support of your comments.

You may submit comments on this proposal as an individual or on behalf of a business or other organization via the Regulations.gov website or via postal mail, as described in the ADDRESSES section of this document. Your comment must reference Notice No. 217 and must be submitted or postmarked by the closing date shown in the DATES section of this document. You may upload or include attachments with your comment. You also may request a public hearing on this proposal. The TTB Administrator reserves the right to determine whether to hold a public hearing.

All submitted comments and attachments are part of the rulemaking record and are subject to public disclosure. Do not enclose any material in your comments that you consider confidential or that is inappropriate for disclosure.

TTB will post, and you may view, copies of this document, the related petition and selected supporting materials, and any comments TTB receives about this proposal within the related Regulations.gov docket. In general, TTB will post comments as submitted, and it will not redact any identifying or contact information from the body of a comment or attachment.

Please contact TTB's Regulations and Rulings division by email using the web form available at https://www.ttb.gov/contact-rrd, or by telephone at 202-453-2265, if you have any questions about commenting on this proposal or to request copies of this document, the related petition and its supporting materials, or any comments received.

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

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

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

The revision and additions read as follows:

On February 22, 2013, EPA published in the Federal Register a notice of proposed rulemaking that outlined EPA's policy at the time with respect to SIP provisions related to periods of SSM. 1 In that notice, EPA analyzed specific SSM SIP provisions and explained how each one either did or did not comply with the CAA with regard to excess emission events. For each SIP provision that EPA determined to be inconsistent with the CAA, EPA proposed to find that the existing SIP provision was substantially inadequate to meet CAA requirements and thus proposed to issue a SIP call under CAA section 110(k)(5). On September 17, 2014, EPA issued a document supplementing and revising what the Agency had previously proposed on February 22, 2013, in light of a United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) decision  2 that determined the CAA precludes authority of EPA to create affirmative defense provisions applicable to private civil suits. EPA outlined its updated policy that affirmative defense SIP provisions are not consistent with CAA requirements. EPA proposed in the supplemental proposal document to apply its revised interpretation of the CAA to specific affirmative defense SIP provisions and proposed SIP calls for those provisions where appropriate. See 79 FR 55920 (September 17, 2014).

On June 12, 2015, pursuant to CAA section 110(k)(5), EPA finalized “State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls To Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown and Malfunction,” hereinafter referred to as the “2015 SSM SIP Action.” See 80 FR 33839 (June 12, 2015). The 2015 SSM SIP Action clarified, restated, and updated EPA's interpretation that SSM exemption and affirmative defense SIP provisions are inconsistent with CAA requirements. The 2015 SSM SIP Action found that certain SIP provisions in 36 states were substantially inadequate to meet CAA requirements and issued a SIP call to those states to submit SIP revisions to address the inadequacies. EPA established an 18-month deadline by which the affected states had to submit such SIP revisions. States were required to submit corrective revisions to their SIPs in response to the SIP calls by November 22, 2016.

Georgia submitted a SIP revision to EPA on November 17, 2016, in response to the SIP call issued in the 2015 SSM SIP Action. In its submission, the State is requesting that EPA approve two new paragraphs into Ga. Comp. R. & Regs. (hereinafter Rule) 391-3-1-.02(2)(a) of the Georgia SIP that would allow sources to comply with certain work practice standards as alternative emission limitations (AELs) during periods of SSM and would describe requirements for minimizing excess emissions during periods of SSM.

EPA issued a memorandum in October 2020 (2020 Memorandum), which stated that certain provisions governing SSM periods in SIPs could be viewed as consistent with CAA requirements. 3 Importantly, the 2020 Memorandum stated that it “did not alter in any way the determinations made in the 2015 SSM SIP Action that identified specific state SIP provisions that were substantially inadequate to meet the requirements of the Act.” Accordingly, the 2020 Memorandum had no direct impact on the SIP call issued to Georgia in 2015. The 2020 Memorandum did, however, indicate EPA's intent at the time to review SIP calls that were issued in the 2015 SSM SIP Action to determine whether EPA should maintain, modify, or withdraw particular SIP calls through future agency actions.

On September 30, 2021, EPA's Deputy Administrator withdrew the 2020 Memorandum and announced EPA's return to the policy articulated in the 2015 SSM SIP Action (2021 Memorandum). 4 As articulated in the 2021 Memorandum, SIP provisions that contain exemptions or affirmative defense provisions are not consistent with CAA requirements and, therefore, generally are not approvable if contained in a SIP submission. This policy approach is intended to ensure that all communities and populations, including minority, low-income, and indigenous populations overburdened by air pollution, receive the full health and environmental protections provided by the CAA. 5 The 2021 Memorandum also retracted the prior statement from the 2020 Memorandum of EPA's plans to review and potentially modify or withdraw particular SIP calls. That statement no longer reflects EPA's intent. EPA intends to implement the principles laid out in the 2015 SSM SIP Action as the Agency acts on SIP submissions, including Georgia's SIP submittal provided in response to the 2015 SIP call.

Regarding the Georgia SIP, in the 2015 SSM SIP Action, EPA determined that paragraph 7, “Excess Emissions,” of Rule 391-3-1-.02(2)(a) (paragraph 391-3-1-.02(2)(a)7) (hereinafter referred to as paragraph 7), is substantially inadequate to meet CAA requirements. See 80 FR 33962. Paragraph 7, which has three parts, provides, first, that excess emissions which occur during periods of SSM despite ordinary diligence by the source are allowed provided that best operational practices to minimize emissions are adhered to, all associated air pollution control equipment is operated in a manner consistent with good air pollution control practice for minimizing emissions, and the duration of excess emissions is minimized. Second, paragraph 7 provides that excess emissions which are caused entirely or in part by poor maintenance, poor operation, or any other equipment or process failure which may reasonably be prevented during periods of SSM are prohibited and are violations of Georgia's Air Quality Control rules. Third, paragraph 7 specifies that the provisions therein apply only to those sources which are not subject to any requirement of 40 CFR part 60, as amended, concerning New Source Performance Standards. The rationale underlying EPA's determination that paragraph 7 of section 391-3-1-.02(2)(a) is substantially inadequate to meet CAA requirements, and therefore to issue a SIP call to Georgia to remedy the provision, is detailed in the 2015 SSM SIP Action and the accompanying proposals. EPA is not soliciting comment on its rationale for issuing the 2015 SIP call to Georgia.

As noted above, Georgia's November 17, 2016, SIP revision requests that EPA approve two new paragraphs into Rule 391-3-1-.02(2)(a) of the Georgia SIP at 391-3-1-.02(2)(a)11, “Startup and Shutdown Emissions for SIP-Approved Rules” (paragraph 11) and at 391-3-1-.02(2)(a)12, “Malfunction Emissions” (paragraph 12).

For periods of startup and shutdown, new paragraph 11 would apply in lieu of the existing SIP-called paragraph 7 upon the effective date of EPA's final approval of the rule. Paragraph 11 would require sources to comply with applicable SIP emission limitations and standards by either: (1) complying with the applicable emission limitations and standards at all times, including periods of startup and shutdown, or (2) complying with the applicable emission limitations and standards during “normal operations” and complying with AELs in the form of certain work practice standards during periods of startup and shutdown. Thus, owners and operators of sources that elect not to comply with the numeric emission limitations during periods of startup and shutdown would be allowed to comply with certain alternative work practice standards. 6

EPA previously identified several deficiencies in paragraph 11, as outlined in EPA Region 4's August 1, 2016, and September 30, 2016, comment letters to GA EPD regarding Georgia's July 1, 2016, and August 31, 2016, prehearing submissions transmitting the State's proposed response to the 2015 SSM SIP Action for public review. 7 In this notice of proposed rulemaking (NPRM), EPA proposes to find that paragraph 11, which generally was not changed from the version in the pre-hearing submissions except for renumbering, does not adequately address the 2015 SSM SIP Action and does not comport with EPA's SSM policy, as outlined in that action.

As submitted, subparagraph (ii)(I)I.B of paragraph 11 provides that, during periods of startup and shutdown, sources subject to any of the SIP emission limitations identified in subparagraph 11.(ii) may choose to comply with “general alternative work practice standards” identified at 11.(ii)(I)IV; work practice standards which are in federal rules as noted at 11.(ii)(I)V; or source-specific work practice standards established in permits at 11.(ii)(I)VI. Subparagraph (ii)(I)IV.B of paragraph 11 provides that sources may choose to comply with generally available work practice standards at provisions (ii)(I)IV.B.(A)-(M), as applicable, for fuel burning sources and pollution control devices installed to meet applicable emission limitations, as applicable. The Georgia rules, which would function as AELs to otherwise applicable numeric emission limits in the SIP during periods of startup and shutdown, do not reflect consideration of the seven specific criteria that EPA recommends, per Agency guidance, for developing AELs that apply during startup and shutdown. See 80 FR 33980-82. 8 For example, and as discussed in more detail below, the generally available work practice standards apply to a general type of source, i.e., “fuel burning sources,” and are not limited to specific, narrowly defined source categories ( e.g., cogeneration facilities burning natural gas, steam generating units burning fossil fuel, stationary gas turbines, etc.) using specific control strategies.

The Georgia rules also seem to have been developed without consideration of whether sources are capable of complying with otherwise applicable numeric emission limitations. EPA does not recommend establishing AELs for sources that are capable of meeting their existing emission limitations at all times. See id. at 33913. As part of the November 17, 2016, SIP revision, GA EPD responded to EPA's comments on the draft regulatory changes. GA EPD notes in its response that sources that are capable of meeting their numeric emission limitations at all times have the option to comply with those limits at all times in lieu of the additional burden of complying with work practice standards during periods of startup and shutdown. Specifically, paragraph 11 at 11.(ii)(I)I. allows compliance with emission limitations to be achieved by either complying with the applicable emission limitations at all times or by complying with the AELs during periods of startup and shutdown as outlined in the remainder of subparagraph 11(ii). This means that sources which are capable of meeting the original emission limitations and standards at all times, even during periods of startup and shutdown, have the option of complying with AELs such as work practice standards in lieu of meeting those original limitations. Accordingly, EPA views this option as inconsistent with the 2015 SSM SIP Action.

Moreover, the requirements at 11.(ii)(I)IV.B.(A)-(M) have not been sufficiently tailored for specific sources or source categories. Control requirements that apply during startup and shutdown must be clearly stated as components of the emission limitation and must meet the applicable level of control required for the type of SIP provision ( e.g., must be reasonably available control technology (RACT) for sources subject to a RACT requirement). See 80 FR 33890, 33912-13. Alternative requirements applicable to a source during startup and shutdown should be narrowly tailored and take into account considerations such as the technological limitations of the specific source category and the control technology that is feasible during startup and shutdown. See id. at 33912-13, 33980.

The November 17, 2016, submittal indicates that the State made use of EPA's work practice standards at 40 CFR part 63, subpart DDDDD, known as the boiler Maximum Achievable Control Technology (MACT) rule (Boiler MACT Rule), and other federal regulations in developing its work practice standards ( e.g., the general work practice standard at 11.(ii)(I)IV.B.(H)). EPA acknowledges that certain federal rules may provide useful examples of approaches for appropriate and feasible AELs for states to apply during startup and shutdown in a SIP provision (in particular those federal rules that have been revised or newly promulgated since 2008). 9 However, it should not be assumed that emission limitation requirements in recent National Emission Standards for Hazardous Air Pollutants (NESHAP) and New Source Performance Standards (NSPS) are appropriate for all sources regulated by the SIP. The universe of sources regulated by the federal NSPS and NESHAP programs is not identical to the universe of sources regulated by states for purposes of the national ambient air quality standards (NAAQS). Moreover, the pollutants regulated under the NESHAP program ( i.e., hazardous air pollutants) are in many cases different than those that would be regulated for purposes of attaining and maintaining the NAAQS, protecting prevention of significant deterioration (PSD) increments, improving visibility, and meeting other CAA requirements. See 80 FR 33916. Therefore, the work practice standards which the State wants to include as components of a continuously applicable emission limitation would need to be evaluated on a case-by-case basis as to their appropriateness as AELs for SIP purposes.

Regarding the example included in GA EPD's response in its November 17, 2016, submittal, the general work practice standard at 11.(ii)(I)IV.B.(H) is available to all fuel burning equipment and requires sources to burn a “clean fuel” as defined in the Boiler MACT Rule or to burn “the cleanest fuel the unit is permitted to burn, as practicable.” The submittal does not explain why startup and shutdown work practice standards that were developed for boilers are necessarily appropriate as AELs for all types of fuel-burning sources. This general work practice standard is not sufficiently specific in its applicability, nor is it sufficiently specific as to which fuels are acceptable to burn during startup to be considered an appropriate AEL. See 80 FR 33912-13, 33916. Additionally, if certain sources can meet their existing numeric emission limitations and standards, then those sources do not need AELs. In those cases, there should be a distinction between which sources are required to comply with their existing numeric emission limitations or standards and which sources need AELs for periods of startup or shutdown.

Additionally, EPA notes that many of the work practice standards listed in 11.(ii)(I)IV.B. appear to contain exempt periods, presumably due to technological limitations of the control equipment. Some of the standards also require operation “as specified by the manufacturer,” which makes these standards difficult or impractical to enforce and may also result in exempt periods. For example, for units using baghouses, no emission limitation would apply whenever “the inlet gas temperature is below the dew point, outside the manufacturer's recommended operating temperature range, or if the pressure differential across the baghouse exceeds the manufacturer's recommended maximum pressure differential.” Rule 391-3-1-.02(2)(a)11.(ii)(I)IV.B.(A). While EPA agrees that emission control devices should be utilized to the maximum extent practicable, the Agency disagrees that sources should be exempt from any sort of emission limitation during times in which full use of control devices might not be possible. As discussed in the 2015 SSM SIP Action, in accordance with the CAA, some emission limitation must apply at all times. Examples of potential AELs that may be applied include the use of additional emission controls, use of cleaner burning fuels, and establishment of higher numeric emission limitations that are still protective of the NAAQS and otherwise meet the requirements of the CAA. Thus, for the reasons discussed above, EPA is proposing to disapprove the AEL approach established at 11.(ii)(I)IV.

Next, paragraph 11 at 11.(ii)(I)V provides that, in lieu of the general alternative work practice standards option at 11.(ii)(I)IV, the owner or operator of a source may follow the startup and shutdown work practice standards in federal rules included in 40 CFR part 60 (NSPS) or 40 CFR part 63 (NESHAP) so long as the rule contains specific work practice standards for startup and shutdown periods. The provision also notes that those federal rules are adopted by Georgia as Rules 391-3-1-.02(8) and (9). As discussed above, while EPA acknowledges that certain federal rules may provide good examples of approaches for appropriate and feasible AELs for states to apply during startup and shutdown in a SIP provision (in particular, those federal rules that have been revised or newly promulgated since 2008), 10 the SIP must be clear as to what the applicable limitations are for each source at all times. Therefore, this provision does not constitute a component of an emission limitation for a specific source or source category, as it does not specify which sources or source categories will comply with the startup and shutdown procedures contained in federal rules and which provisions from those federal rules are applicable.

As noted above, control requirements that apply during startup and shutdown must be clearly stated as components of the emission limitation and must meet the applicable level of control required for the type of SIP provision. Since the purpose of the NSPS and NESHAP programs is not identical to that of the SIPs, the provisions intended to apply to specific source categories should be evaluated on a case-by-case basis to ensure their appropriateness for the purposes of the SIP. See 80 FR 33916. EPA also recommends giving consideration to the seven specific criteria delineated in the 2015 SSM SIP Action for developing AELs in SIP provisions that apply during startup and shutdown. See id. at 33980. Therefore, EPA is proposing to disapprove the AEL approach established in 11.(ii)(I)V.

Rule 11.(ii)(I)VI provides that in lieu of options 11.(ii)(l)IV or 11.(ii)(l)V discussed above, the owner or operator of a source may choose to comply with a source-specific alternative work practice standard for startup and shutdown periods that has been incorporated into a federally enforceable permit. EPA notes, however, that emission limitations that are specified only in a permit are not part of the SIP unless and until they are submitted to EPA and federally approved into the SIP. The fact that EPA has approved the permitting program itself into the SIP does not mean that EPA has approved the actual contents of each permit issued or has made such contents an approved part of the SIP. See 80 FR 33915-16, 33922. In the context of emission limitations contained in a SIP, EPA views the approach of establishing AELs through a permit that does not involve submitting the relevant permit requirements to the EPA for inclusion in the SIP as a form of “director's discretion,” a type of provision that, as explained in the 2015 SSM SIP Action, is inconsistent with CAA requirements because it would allow the state to create alternatives to SIP emission limitations without complying with the CAA's SIP revision requirements.

Among other things, a permit-based approach to establishing an AEL (that does not involve submitting the relevant permit requirements to the EPA for inclusion in the SIP) would bypass EPA's role in reviewing and approving the AEL to ensure that it is enforceable pursuant to CAA section 110(a)(2)(A) ( i.e., that emission limitations are sufficiently specific regarding the source's obligations and include adequate monitoring, recordkeeping, and reporting requirements). Accordingly, a permitting process cannot be used to create alternatives to SIP emission limitations for sources during startup and shutdown in lieu of a SIP revision. The State may use the permit development process as a means to evaluate and establish AELs for periods of startup and shutdown for a specific source, but such permit conditions would not negate or replace applicable SIP limits without being approved as a source-specific SIP revision.

Georgia's November 17, 2016, submittal suggests that the “director's discretion” issue is not implicated in the approach delineated in 11.(ii)(I)VI because EPA and the public would have an opportunity to comment on the permit. This opportunity for public comment is not a substitute for a source-specific SIP revision, which is needed to alter otherwise applicable SIP emission limitations. As noted above, treating conditions in a permit as AELs that apply instead of SIP-approved emission limitations effectively revises otherwise applicable SIP requirements without going through a SIP revision. Therefore, EPA is proposing to disapprove the AEL approach established in paragraph 11.(ii)(I)VI.

Subparagraph 11.(ii) also states that “[t]he provisions of this subparagraph 11.(ii) shall also apply to emission limitations established in accordance with the new source review requirements in 391-3-1-.02(7)(b) and/or 391-3-1-.03(8) unless startup and shutdown emissions have already been specifically addressed via a federally enforceable permit.” Paragraph 11 at 11.(ii)(I)I.B provides that compliance with those emission limitations may be achieved by one of the alternative work practice standards during startup and shutdown. In addition to the other concerns noted previously regarding subparagraph 11.(ii), allowing the alternative compliance options for startup and shutdown to be available for limitations established for a source through the State's new source review (NSR) program may result in emission limitations that do not comply with that program. A fully approvable SIP emission limitation, including periods of startup and shutdown, must meet all substantive requirements of the CAA applicable to such a SIP provision. For purposes of nonattainment NSR (NNSR) and PSD permitting, any AEL applicable to startup and shutdown periods must constitute the lowest achievable emissions rate (LAER) for NNSR or must reflect the use of best available control technology (BACT) for PSD. See 80 FR 33893. To satisfy CAA requirements, such AELs must be established on a source-specific basis through the NNSR and PSD permitting process rather than in a static rule. The process identified in 11.(ii) is also open-ended and not sufficiently specific to determine what applies to specific permitted sources during periods of startup and shutdown.

EPA understands from GA EPD's response to comments in the November 17, 2016, submittal that this provision is specifically intended to apply to sources with existing permits issued pursuant to Rules 391-3-1-.02(7)(b) (PSD) and 391-3-1-.03(8) (NNSR), which did not include emission limitations for periods of startup and shutdown at the time the permits were issued, while permits issued pursuant to the PSD and NNSR program today would consider startup and shutdown in the permitting process. However, the same issues remain with this approach even for the more limited universe of existing permits. Furthermore, for the reasons described previously, EPA is proposing to disapprove the underlying regulations at paragraph 11. Therefore, EPA is also proposing to disapprove this provision at 11.(ii) establishing the AEL “options” approaches for existing PSD and NNSR permits.

For periods of malfunction, new paragraph 12 would allow compliance with source-specific AELs in the form of work practice standards. Owners and operators of sources that elect not to comply with the numeric emission limitations during periods of malfunction may choose to propose source-specific alternative work practice standards. As with new paragraph 391-3-1-.02(2)(a)11 discussed above, this provision would apply in lieu of the existing SIP-called paragraph 391-3-1-.02(2)(a)7 upon EPA's approval into the SIP, and it also includes automatic rescission language regarding the effectiveness of subparagraph 12.(ii) in the event that legal challenges to the 2015 SSM SIP Action are successful. 11

In accordance with the Clean Air Act (CAA or Act), EPA is proposing to approve the Atlanta Area LMP for the 1997 8-hour ozone NAAQS that was submitted by Georgia EPD as a revision to the Georgia SIP on December 17, 2021. On April 15, 2004, the EPA Administrator signed a final rule announcing designations under the 8-hour ozone NAAQS. That action included the designation of the Atlanta Area as nonattainment for the 1997 8-hour ozone NAAQS. It was published April 30, 2004 and became effective June 15, 2004. See 69 FR 23857 (April 30, 2004). Subsequently, EPA approved a maintenance plan and redesignated the Atlanta Area attainment for the 1997 8-hour Ozone NAAQS. See 78 FR 72040 (December 2, 2013).

The Area LMP submitted by Georgia EPD on December 17, 2021, is designed to maintain the 1997 8-hour ozone NAAQS within the Atlanta Area through the end of the second 10-year portion of the maintenance period beyond redesignation. EPA is proposing to approve the LMP because it meets all applicable requirements under CAA sections 110 and 175A.

As a general matter, the Atlanta Area LMP builds upon controls and contingency provisions to maintain the 1997 8-hour ozone NAAQS during the second 10-year portion of the Area's maintenance period as the maintenance plan submitted by Georgia EPD for the first 10-year period.

Ground-level ozone is formed when oxides of nitrogen (NO X ) and volatile organic compounds (VOC) react in the presence of sunlight. These two pollutants, referred to as ozone precursors, are emitted by many types of pollution sources, including on- and off-road motor vehicles and engines, power plants and industrial facilities, and smaller area sources such as lawn and garden equipment and paints. Scientific evidence indicates that adverse public health effects occur following exposure to ozone, particularly in children and in adults with lung disease. Breathing air containing ozone can reduce lung function and inflame airways, which can increase respiratory symptoms and aggravate asthma and other lung diseases.

Ozone exposure also has been associated with increased susceptibility to respiratory infections, medication use, doctor visits, and emergency department visits and hospital admissions for individuals with lung disease. Children are at increased risk from exposure to ozone because their lungs are still developing and they are more likely to be active outdoors, which increases their exposure. 1

In 1979, under section 109 of the CAA, EPA established primary and secondary NAAQS for ozone at 0.12 parts per million (ppm), averaged over a 1-hour period. See 44 FR 8202 (February 8, 1979). On July 18, 1997, EPA revised the primary and secondary NAAQS for ozone to set the acceptable level of ozone in the ambient air at 0.08 ppm, averaged over an 8-hour period. See 62 FR 38856 (July 18, 1997). 2 EPA set the 8-hour ozone NAAQS based on scientific evidence demonstrating that ozone causes adverse health effects at lower concentrations and over longer periods of time than was understood when the pre-existing 1-hour ozone NAAQS was set. EPA determined that the 8-hour ozone NAAQS would be more protective of human health, especially for children and adults who are active outdoors, and individuals with a pre-existing respiratory disease, such as asthma.

Following promulgation of a new or revised NAAQS, EPA is required by the CAA to designate areas throughout the nation as attaining or not attaining the NAAQS. Effective June 15, 2004, EPA designated the Atlanta Area as nonattainment for the 1997 8-hour ozone NAAQS. See 69 FR 23858 (April 30, 2004). Similarly, on May 21, 2012, EPA designated areas as unclassifiable/attainment or nonattainment for the 2008 8-hour ozone NAAQS. Fifteen metro Atlanta counties were designated nonattainment for the 2008 ozone NAAQS: Bartow, Cherokee, Clayton, Cobb, Coweta, DeKalb, Douglas, Fayette, Forsyth, Fulton, Gwinnett, Henry, Newton, Paulding, and Rockdale. See 77 FR 30088 (May 21, 2012). EPA designated five other metro Atlanta counties as unclassifiable/attainment for the 2008 8-hour ozone NAAQS: Barrow, Carroll, Hall, Spalding, and Walton. These designations became effective on July 20, 2012. In addition, on June 4, 2018, EPA designated areas for the 2015 8-hour ozone NAAQS. Effective August 3, 2018, seven metro Atlanta counties were designated as nonattainment for the 2015 8-hour ozone NAAQS: Bartow, Clayton, Cobb, DeKalb, Fulton, Gwinnett and Henry. See 83 FR 25776 (June 4, 2018) and 40 CFR 81.311.

A state may submit a request that EPA redesignate a nonattainment area that is attaining a NAAQS, and, if the area has met other required criteria described in section 107(d)(3)(E) of the CAA, EPA may approve the area's redesignation to attainment. 3 One of the criteria for redesignation is to have an approved maintenance plan under CAA section 175A. The maintenance plan must demonstrate that the area will continue to maintain the NAAQS for the period extending 10 years after redesignation, and it must contain such additional measures as necessary to ensure maintenance and such contingency provisions as necessary to assure that violations of the NAAQS will be promptly corrected. Eight years after the effective date of redesignation, the state must also submit a second maintenance plan to ensure ongoing maintenance of the NAAQS for an additional ten years pursuant to CAA section 175A(b) ( i.e., ensuring maintenance for 20 years after redesignation).

EPA has published long-standing guidance for states on developing maintenance plans, beginning with a 1992 memo referred to as the Calcagni memo. 4 The Calcagni memo provides that states may generally demonstrate maintenance by either performing air quality modeling to show that the future mix of sources and emission rates will not cause a violation of the NAAQS or by showing that projected future emissions of a pollutant and its precursors will not exceed the level of emissions generated during a year when the area was attaining the NAAQS ( i.e., attainment year inventory). See Calcagni memo at page 9. EPA clarified in three subsequent guidance memos that certain areas could meet the CAA section 175A requirement to provide for maintenance by showing that the area was unlikely to violate the NAAQS in the future, using information such as the area's design value  5 being well below the standard and the area having a historically stable design value. 6 EPA refers to a maintenance plan containing this streamlined demonstration as an LMP.

EPA has interpreted CAA section 175A as permitting the LMP option because section 175A of the Act does not define how areas may demonstrate maintenance, and in EPA's experience implementing the various NAAQS, areas that qualify for an LMP and have approved LMPs have rarely, if ever, experienced subsequent violations of the NAAQS. As noted in the LMP guidance memoranda, states seeking an LMP must still submit the other maintenance plan elements outlined in the Calcagni memo, including: an attainment emissions inventory, provisions for the continued operation of the ambient air quality monitoring network, verification of continued attainment, and a contingency plan in the event of a future violation of the NAAQS. Moreover, a state seeking an LMP must still submit its section 175A maintenance plan as a revision to its SIP, with all attendant notice and comment procedures. While the LMP guidance memoranda were originally written with respect to certain NAAQS, 7 EPA has extended the LMP interpretation of section 175A to other NAAQS and pollutants not specifically covered by the previous guidance memos. See, e.g., 79 FR 41900 (July 18, 2014) (approval of the second ten-year LMP for the Grant County 1971 SO 2 maintenance area).

In this case, EPA is proposing to approve the Area's LMP for the 1997 8-hour ozone NAAQS because the State has made a showing, consistent with EPA's prior LMP guidance, that the Area's ozone concentrations are well below the 1997 8-hour ozone NAAQS and have been historically stable, and that it has met the other maintenance plan requirements. Georgia EPD has submitted the LMP for the Atlanta Area to fulfill the second maintenance plan requirement in the Act. EPA's evaluation of the Area's LMP for the 1997 8-hour ozone NAAQS is presented below.

On April 4, 2012, Georgia EPD submitted to EPA a request to redesignate the Atlanta Area to attainment for the 1997 8-hour ozone NAAQS. This submittal included a plan to provide for maintenance of the 1997 8-hour ozone NAAQS in the Atlanta Area through 2024 as a revision to the Georgia SIP. EPA approved the Atlanta Area Maintenance Plan and the State's request to redesignate the Atlanta Area to attainment for the 1997 8-hour ozone NAAQS effective January 2, 2014. See 78 FR 72040 (December 2, 2013).

Under CAA section 175A(b), states must submit a revision to the first maintenance plan eight years after redesignation to provide for maintenance of the NAAQS for ten additional years following the end of the first 10-year period. EPA's final implementation rule for the 2008 8-hour ozone NAAQS revoked the 1997 8-hour ozone NAAQS and stated that one consequence of revocation was that areas that had been redesignated to attainment ( i.e., maintenance areas) for the 1997 NAAQS no longer needed to submit second 10-year maintenance plans under CAA section 175A(b). See 80 FR 12315 (March 6, 2015). On June 2, 2017, EPA redesignated 15 counties in metro Atlanta as attainment for the 2008 8-hour ozone NAAQS. 8 See 82 FR 25523 (June 2, 2017).

In South Coast Air Quality Management District v. EPA, the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) vacated EPA's interpretation that, because of the revocation of the 1997 8-hour ozone NAAQS, second maintenance plans were not required for “orphan maintenance areas,” i.e., areas that had been redesignated to attainment for the 1997 8-hour ozone NAAQS maintenance areas and were designated attainment for the 2008 ozone NAAQS. South Coast, 882 F.3d 1138 (D.C. Cir. 2018). Thus, states with these “orphan maintenance areas” under the 1997 8-hour ozone NAAQS must submit maintenance plans for the second maintenance period. Accordingly, on December 17, 2021, Georgia submitted a second maintenance plan for the Atlanta Area that shows that the Area is expected to remain in attainment of the 1997 8-hour ozone NAAQS through January 2, 2034.

In recognition of the continuing record of air quality monitoring data showing ambient 8-hour ozone concentrations in the Area are below the 1997 8-hour ozone NAAQS, Georgia EPD chose the LMP option for the development of the Area's second 1997 8-hour ozone NAAQS maintenance plan. On December 17, 2021, Georgia EPD submitted the second 10-year 1997 8-hour ozone maintenance plan to EPA as a revision to the Georgia SIP.

Georgia's December 17, 2021, submittal includes the LMP, air quality data, emissions inventory information, and an appendix. The submission also includes comments and responses between EPA and Georgia EPD and documentation of notice, hearing, and public participation prior to submission of the plan by Georgia EPD on December 17, 2021. It also includes an explanation that Georgia's LMP submittal for the remainder of the 20-year maintenance period for the Atlanta Area is in response to the D.C. Circuit Court's decision overturning aspects of EPA's Implementation Plan rule. In addition, the LMP went through interagency consultation to ensure transportation conformity.

The Atlanta LMP for the 1997 8-Hour ozone NAAQS includes same or similar emission reduction strategies as the first 10-year Maintenance Plan, as well as additional emissions reduction measures to provide for the maintenance of the 1997 8-hour ozone NAAQS through January 2, 2034. Specifically, the measures upon which the second 10-year LMP for the Area rely include the following SIP-approved Georgia Rules: 391-3-1-.02(2)(yy)—Emissions of Nitrogen Oxides from Major Sources; 391-3-1-.02(2)(jjj)—NO X Emissions from Electric Utility Steam Generating Units; 391-3-1-.02(2)(lll)—NO X Emissions from Fuel-Burning Equipment; 391-3-1-.02(2)(rrr)—NO X from Small Fuel-Burning Equipment; 391-3-20—Vehicle Emissions Inspection and Maintenance Program; and 391-3-1-.02(12)—Cross-State Air Pollution Rule (CSAPR) NO X Annual Trading Program. The Area's LMP also relies on continued implementation of Federal measures ( e.g., Onboard Refueling Vapor Recovery for Light Duty Vehicles; Architectural and Industrial Maintenance Coatings; Automobile Refinishing; National Emission Standards for Hazardous Air Pollutants (the majority of which are for VOC); Phase II Acid Rain Program for NO X ; Tier 2 Motor Vehicle Emissions Standards and Gasoline Sulfur Control Requirements (65 FR 6697); Tier 3 Motor Vehicle Emissions Standards and Gasoline Sulfur Control Requirements (79 FR 23414); and CSAPR).

EPA has reviewed the Area's LMP which is designed to maintain the 1997 8-hour ozone NAAQS within the Area through the end of the 20-year period beyond redesignation, as required under CAA section 175A(b). The following is a summary of EPA's interpretation of the section 175A requirements  9 and EPA's evaluation of how each requirement is met.

For maintenance plans, a state should develop a comprehensive, accurate inventory of actual emissions for an attainment year to identify the level of emissions which is sufficient to maintain the NAAQS. A state should develop this inventory consistent with EPA's most recent guidance on emissions inventory development. For ozone, the inventory should be based on typical summer day emissions of VOC and NO X , as these pollutants are precursors to ozone formation. The Atlanta LMP includes an ozone attainment inventory for the Area generated from the data EPA made available from the 2014 National Emissions Inventory (NEI) and that Georgia represents as 2014 summer tons. 10 Table 1 presents a summary of the inventory for 2014 contained in the LMP.

The Emissions Inventory section of the LMP for the Atlanta Area describes the methods, models, and assumptions used to develop the attainment inventory. These estimates were derived from emission values provided by EPA for use in developing maintenance plans for the 1997 8-hour ozone NAAQS. 12 For the Atlanta Area, Georgia EPD used the emissions summaries generated by EPA from the 2014 NEI, version 2 (2014NEIv2). 13

Based on review of the methods, models, and assumptions used by Georgia EPD to develop the VOC and NO X estimates, EPA proposes to find that the Area's LMP includes a comprehensive, reasonably accurate inventory of actual ozone precursor emissions in attainment year 2014, and proposes to conclude that the plan's inventories are acceptable for the purposes of a subsequent maintenance plan under CAA section 175A(b).

The maintenance demonstration requirement is considered to be satisfied in an LMP if the state can provide sufficient weight of evidence indicating that air quality in the area is well below the level of the NAAQS, that past air quality trends have been shown to be stable, and that the probability of the area experiencing a violation over the second 10-year maintenance period is low. 14 These criteria are evaluated below with regard to the Atlanta Area.

To attain the 1997 8-hour ozone NAAQS, the three-year average of the fourth-highest daily maximum 8-hour average ozone concentrations (design value) at each monitor within an area must not exceed 0.08 ppm. Based on the rounding convention described in 40 CFR part 50, appendix I, the NAAQS is attained if the design value is 0.084 ppm (84 parts per billion or “ppb”)  15 or below. EPA has evaluated the quality assured and certified 2018-2020 monitoring data (which was the most recent quality assured and certified data at the time of submission) and determined that the 2018-2020 design value for the Area is 70 ppb, or 83 percent of the level of the 1997 8-hour ozone NAAQS. In addition, EPA evaluated the quality assured and certified 2019-2021 monitoring data (which is the most recent quality assured and certified monitoring data) and determined that the 2019-2021 design value for the Area is 68 ppb, or 81 percent of the level of the 1997 8-hour ozone NAAQS. Consistent with prior guidance, EPA believes that if the most recent air quality design value for the area is at a level that is well below the NAAQS ( e.g., below 85 percent of the NAAQS, or in this case below 71 ppb), then EPA considers the state to have met the section 175A requirement for a demonstration that the area will maintain the NAAQS for the requisite period. Such a demonstration assumes continued applicability of prevention of significant deterioration requirements and any control measures already in the SIP, and that Federal measures will remain in place through the end of the second 10-year maintenance period, absent a showing consistent with section 110(l) that such measures are not necessary to assure maintenance.

Table 2 presents the design values for each monitor in the Atlanta Area over the 2009-2021 period. 16 As shown in Table 2, all sites have been below the level of the 1997 8-hour ozone NAAQS since the 2008-2010 design value, and the most current design value for each monitoring site is below 85 percent of the NAAQS, consistent with prior LMP guidance.

Therefore, the Atlanta Area is eligible for the LMP option, and EPA proposes to find that the long record of monitored ozone concentrations that attain the NAAQS, together with the continuation of existing VOC and NO X emissions control programs, adequately provide for the maintenance of the 1997 8-hour ozone NAAQS in the Area through the second 10-year maintenance period and beyond.

As discussed above, the Atlanta Area has maintained air quality below the 1997 8-hour ozone NAAQS over the past twelve design values. Additionally, the design value data shown within Table 2 of this document illustrates that ozone levels have been relatively stable over this timeframe, with an overall downward trend. For example, the data within Table 2 of this document indicates that the largest, year over year change in design value presented was 8 ppb for the Atlanta Area, which occurred between the 2009 design value and 2010 design value at monitor 13-151-0002 (McDonough), representing approximately a 9 percent decrease.

Furthermore, overall trend in design values for the Area between 2009-2021 indicates decreases in the monitored ozone concentrations. See, e.g., Table 2, of this document. The Atlanta Area monitor that most frequently measured the highest design value in the area, monitor 13-121-0055 (United Avenue), displayed a decreasing trend over this period from 86 ppb to 68 ppb, a 21 percent decrease.

The downward trend in ozone levels, coupled with the relatively small, year-over-year variation in ozone design values, makes it reasonable to conclude that the Atlanta Area will not exceed the 1997 8-hour ozone NAAQS during the second 10-year maintenance period.

Although under the LMP option there is no requirement to project emissions over the maintenance period, Georgia EPD provided VOC and NO X emissions for 2014 and 2028. The year 2014 was selected as a baseline for the projection. 17 Projected emissions data for the year 2028 were obtained from EPA, and Georgia presented an inventory that reflects projected NO X and VOC summer tons for the Area. 18 19

The emissions projection shows that between 2014 and 2028, total VOC emissions are estimated to fall by 27 percent in the Atlanta Area. The emissions projection trends show that between 2014 and 2028, total NO X emissions are estimated to fall by 58 percent in the Atlanta Area. These projected declining emissions trends further support the proposed conclusion that it is unlikely that the Areas would violate the 1997 8-hour ozone NAAQS in the future. Table 3 presents a summary of projected emissions for 2028 contained in the maintenance plan. 20

EPA periodically reviews the ozone monitoring network that Georgia EPD operates and maintains in accordance with 40 CFR part 58. Georgia EPD submits an annual ambient air monitoring network plan to EPA after the plan is made available for public inspection and comment, as required by 40 CFR 58.10. EPA has reviewed and approved the 2021 Georgia Ambient Air Monitoring Network Plan (“2021 Annual Network Plan”), which includes an ozone network for the Atlanta Area that meets the requirements of 40 CFR part 58. 22

To verify the attainment status of the Area over the maintenance period, the maintenance plan should contain provisions for continued operation of an appropriate, EPA-approved monitoring network in accordance with 40 CFR part 58. As noted above, Georgia EPD's monitoring network in the Area has been approved by EPA in accordance with 40 CFR part 58, and the State has committed to continue to maintain a network in accordance with EPA requirements. EPA proposes to find that Georgia EPD's monitoring network is adequate to verify continued attainment of the 1997 8-hour ozone NAAQS in the Area.

Section 175A(d) of the CAA requires that a maintenance plan include contingency provisions. The purpose of such contingency provisions is to prevent future violations of the NAAQS or to promptly remedy any NAAQS violations that might occur during the maintenance period.

The Atlanta Area LMP contingency plan includes tracking and triggering mechanisms to determine when control measures are needed, and a process for developing and adopting appropriate control measures. There are two potential triggers for the contingency plan. The Tier I trigger will be any 8-hour ozone monitoring reading exceeding 84 ppb at an ambient monitoring station located in the Atlanta Area or periodic emissions inventory updates  23 that reveal excessive or unanticipated growth greater than 10 percent in either NO X or VOC emissions over the attainment inventory for the Atlanta Area. The Tier II trigger will be any recorded violation of the 1997 8-hour ozone NAAQS at any of the ambient monitoring stations in the Atlanta Area. Upon either the Tier I or Tier II triggers being activated, Georgia EPD will commence analyses to determine what additional measures, if any, will be necessary to attain or maintain the ozone standard. If activation of either trigger occurs, the plan provides a regulatory adoption process for revising emission control strategies. If Georgia's analysis determines that the Atlanta Area is the source of emissions that contribute to a violation, the State will evaluate those measures as specified in Section 172 of the CAA for control options as well as other available measures. Georgia will implement necessary controls as expeditiously as possible, and at least one contingency measure will be implemented within 24 months after the determination, based on quality-assured ambient data, that a violation has occurred. The Georgia EPD will begin initial analysis of possible contingency measures within 6 months of the trigger occurring. 24

EPA proposes to find that the contingency provisions in Georgia's second maintenance plan for the 1997 8-hour Ozone NAAQS meet the requirements of the CAA section 175A(d).

EPA proposes to find that the Atlanta LMP for the 1997 8-hour ozone NAAQS includes an approvable update of the various elements (including attainment inventory, assurance of adequate monitoring and verification of continued attainment, and contingency provisions) of the initial EPA-approved Maintenance Plan for the 1997 8-hour ozone NAAQS. EPA also proposes to find that the Atlanta Area qualifies for the LMP option and adequately demonstrates maintenance of the 1997 8-hour ozone NAAQS through the documentation of monitoring data showing maximum 1997 8-hour ozone levels well below the NAAQS, historically stable design values, and low probability that the Area will experience a violation over the second 10-year maintenance period. EPA believes the Atlanta LMP for the 1997 8-hour ozone NAAQS, which retains all existing control measures, is sufficient to provide for maintenance of the 1997 8-hour ozone NAAQS in the Area over the second maintenance period ( i.e., through January 2, 2034), and thereby satisfies the requirements for such plans under CAA section 175A(b). EPA is therefore proposing to approve Georgia's December 17, 2021, submission of the Area's LMP for the 1997 8-hour ozone NAAQS as a revision to the Georgia SIP.

Transportation conformity is required by section 176(c) of the CAA. Conformity to a SIP means that transportation activities will not produce new air quality violations, worsen existing violations or delay timely attainment of the NAAQS. See CAA 176(c)(1)(A) and (B). EPA's transportation conformity rule at 40 CFR part 93, subpart A, requires that transportation plans, programs, and projects conform to SIPs, and that it establishes the criteria and procedures for determining whether they conform. The conformity rule generally requires a demonstration that emissions from the Regional Transportation Plan (RTP) and the Transportation Improvement Program (TIP) are consistent with the motor vehicles emissions budget (MVEB) contained in the control strategy SIP revision or maintenance plan. See 40 CFR 93.101, 93.118, and 93.124. A MVEB is defined as “the portion of the total allowable emissions defined in the submitted or approved control strategy implementation plan revision or maintenance plan for a certain date for the purpose of meeting reasonable further progress milestones or demonstrating attainment or maintenance of the NAAQS, for any criteria pollutant or its precursors, allocated to highway and transit vehicle use and emissions.” See 40 CFR 93.101.

Under the conformity rule, LMP areas may demonstrate conformity without a regional emissions analysis. See 40 CFR 93.109(e). EPA made findings that the MVEBs in the first 10-years of the 1997 8-hour ozone maintenance plan for the Atlanta Area were adequate for transportation conformity purposes. In a Federal Register action published on December 2, 2013, EPA notified the public of the adequacy finding for the Atlanta Area through a final rule; the adequacy determination for Atlanta Area became effective on January 2, 2014. See 78 FR 72040. 25

After approval of or an adequacy finding for the LMP, there is no requirement to meet the “budget test” for motor vehicle emissions pursuant to the transportation conformity rule for the respective maintenance area. All actions that would require a transportation conformity determination for the Atlanta Area under EPA's transportation conformity rule provisions are considered to have already satisfied the regional emissions analysis and “budget test” requirements in 40 CFR 93.118 as a result of EPA's adequacy finding for the LMP. See 69 FR 40004 (July 1, 2004). The Atlanta 2008 and 2015 NAAQS Areas need to continue to meet all applicable requirements of the transportation conformity regulations, including the need for a regional emissions analysis and comparison of the results of the regional emissions analysis to the applicable MVEB for the 2008 8-hour ozone NAAQS. The 2008 8-hour ozone NAAQS MVEBs will be used to demonstrate conformity for the 2015 8-hour ozone NAAQS until MVEBs for the 2015 8-hour ozone NAAQS Area are deemed adequate or approved.

However, because LMP areas are still maintenance areas, certain aspects of transportation conformity determinations still will be required for transportation plans, programs, and projects. Specifically, for such determinations, RTPs, TIPs, and transportation projects still will have to demonstrate that they are fiscally constrained (40 CFR 93.108), meet the criteria for consultation (40 CFR 93.105) and Transportation Control Measure implementation in the conformity rule provisions (40 CFR 93.113), as well as meet the hot-spot requirements for projects (40 CFR 93.116). 26 Additionally, conformity determinations for RTPs and TIPs must be determined no less frequently than every four years, and conformity of plan and TIP amendments and transportation projects is demonstrated in accordance with the timing requirements specified in 40 CFR 93.104. Finally, in order for projects to be approved they must come from a currently conforming RTP and TIP. See 40 CFR 93.114 and 93.115.

Under sections 110(k) and 175A of the CAA and for the reasons set forth above, EPA is proposing to approve the Atlanta LMP for the 1997 8-hour ozone NAAQS, submitted by Georgia EPD on December 17, 2021, as a revision to the Georgia SIP. EPA is proposing to approve the LMP because the LMP includes an acceptable update of the various elements of the 1997 8-hour ozone NAAQS Maintenance Plan approved by EPA for the first 10-year period (including emissions inventory, assurance of adequate monitoring and verification of continued attainment, and contingency provisions), and retains the relevant provisions of the SIP.

EPA also finds that the Atlanta Area, a former nonattainment area for the 1997 8-hour ozone NAAQS, qualifies for the LMP option and, therefore, the Area's LMP adequately demonstrates maintenance of the 1997 8-hour ozone NAAQS through documentation of monitoring data showing maximum 1997 8-hour ozone levels well below the NAAQS and continuation of existing control measures. EPA believes the Area's 1997 8-Hour Ozone LMP to be sufficient to provide for maintenance of the 1997 8-hour ozone NAAQS over the second 10-year maintenance period (which extends through January 2, 2034), and thereby satisfies the requirements for such a plan under CAA section 175A(b).

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. This action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed 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 information collection burdens under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

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

• Does not contain any unfunded mandates 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).

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

Inspection of Public Comments: All comments received before the close of the comment period are available for viewing by the public, including any personally identifiable or confidential business information that is included in a comment. We post all comments received before the close of the comment period on the following website as soon as possible after they have been received: https://www.regulations.gov.

Section 1128B(b) of the Act (42 U.S.C. 1320a-7b(b)), the Federal anti-kickback statute, provides for criminal penalties for whoever knowingly and willfully offers, pays, solicits, or receives remuneration to induce or reward, among other things, referrals for or purchases of items or services reimbursable under any of the Federal health care programs, as defined in section 1128B(f) of the Act (42 U.S.C. 1320a-7b(f)). The offense is classified as a felony and is punishable by a fine of up to $100,000 and imprisonment for up to 10 years. Violations of the Federal anti-kickback statute also may result in the imposition of civil monetary penalties under section 1128A(a)(7) of the Act (42 U.S.C. 1320a-7a(a)(7)), program exclusion under section 1128(b)(7) of the Act (42 U.S.C. 1320a-7(b)(7)), and liability under the False Claims Act (31 U.S.C. 3729-33).

Because of the broad reach of the statute, stakeholders expressed concern that some relatively innocuous business arrangements were covered by the statute and, therefore, potentially subject to criminal prosecution. In response, Congress enacted section 14 of the Medicare and Medicaid Patient and Program Protection Act of 1987, Public Law 100-93 (note to section 1128B of the Act; 42 U.S.C. 1320a-7b), which requires the development and promulgation of regulations, the so-called safe harbor provisions, that would specify various payment and business practices that would not be subject to sanctions under the Federal anti-kickback statute, even though they potentially may be capable of inducing referrals of business for which payment may be made under a Federal health care program. Since July 29, 1991, there has been a series of final regulations published in the Federal Register establishing safe harbors to protect various payment and business practices. 1 These safe harbor provisions have been developed “to limit the reach of the statute somewhat by permitting certain non-abusive arrangements, while encouraging beneficial and innocuous arrangements.”  2 Health care providers and others may voluntarily seek to comply with the conditions of an applicable safe harbor so that they have the assurance that their payment or business practice will not be subject to sanctions under the Federal anti-kickback statute. The safe harbor regulations promulgated by OIG are found at 42 CFR part 1001.

OIG periodically issues Special Fraud Alerts to give continuing guidance to health care industry stakeholders about practices that OIG considers to be suspect or of particular concern. 3 Special Fraud Alerts encourage industry compliance by giving stakeholders guidance that can be applied to their own practices. OIG Special Fraud Alerts are published in the Federal Register , on OIG's website, or both, and are intended for extensive distribution.

In developing Special Fraud Alerts, OIG relies on several sources and consults directly with experts in the subject field including those within OIG, other agencies of HHS, other Federal and State agencies, and those in the health care industry.

Section 205 of HIPAA, Public Law 104-191, and section 1128D of the Act (42 U.S.C. 1320a-7d), requires the Department to develop and publish an annual notification in the Federal Register formally soliciting proposals for developing additional or modifying existing safe harbors to the Federal anti-kickback statute and for issuing Special Fraud Alerts.

In developing or modifying safe harbors under the Federal anti-kickback statute, and in consultation with the Department of Justice, OIG thoroughly reviews the range of factual circumstances that may receive protection by the proposed or modified safe harbor. In doing so, OIG seeks to identify and develop safe harbors that protect beneficial and innocuous arrangements and safeguard Federal health care programs and their beneficiaries from the harms caused by fraud and abuse.

OIG seeks recommendations regarding the development of additional or modified safe harbor regulations and the issuance of new Special Fraud Alerts. A detailed explanation of justifications for, or empirical data supporting, a suggestion for a new or modified safe harbor or for the issuance of a new Special Fraud Alert would be helpful and should, if possible, be included in any response to this solicitation.

In accordance with section 205 of HIPAA, we will consider various factors in reviewing proposals for additional or modified safe harbor provisions, such as the extent to which the proposals may result in an increase or decrease in:

• Access to health care services,

• The quality of health care services,

• Patient freedom of choice among health care providers,

• Competition among health care providers,

• The cost to Federal health care programs,

• The potential overutilization of health care services, and

• The ability of health care facilities to provide services in medically underserved areas or to medically underserved populations.

In addition, we will consider other factors including, for example, the existence (or nonexistence) of any potential financial benefit to health care professionals or providers that may influence their decision whether to: (1) order a health care item or service or (2) arrange for a referral of health care items or services to a particular practitioner or provider.

In determining whether to issue additional Special Fraud Alerts, we will consider whether and to what extent the practices that would be identified in a new Special Fraud Alert may result in any of the consequences set forth above, as well as the volume and frequency of the conduct that would be identified in the Special Fraud Alert.

Written comments on the proposed rule should be specific, confined to issues pertinent to the proposed rule, and explain the reason for any recommended change. Where possible, comments should reference the specific section or paragraph of the proposed rule that the comment is addressing. The BLM is not obligated to consider or include in the Administrative Record for the final supplementary rule, comments delivered to an address other than those listed earlier (See ADDRESSES ) or comments that the BLM receives after the close of the comment period (See DATES ), unless they are postmarked or electronically dated before the deadline.

Comments, including names, street addresses, and other contact information of respondents, will be available for public review at the address specified in the ADDRESSES section above, during regular business hours (8 a.m. to 4:30 p.m. Monday through Friday, except Federal holidays). Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

Prior to 2009, the BLM Uncompahgre Field Office used the 1989 Uncompahgre Basin Resource Management Plan (RMP) and the 1985 San Juan/San Miguel Resource Area RMP to manage travel on BLM-managed lands within the Dry Creek, Ridgway, and Norwood-Burn Canyon areas. In March 2007, the BLM published in the Federal Register a Notice of Intent to Amend the Uncompahgre Basin and San Juan/San Miguel RMPs and prepare the Dry Creek Comprehensive Travel Management Plan, Colorado (72 FR 10243). The RMP amendment, approved in June 2010, changed off-highway vehicle designations in identified areas from “Open or Limited” to “Limited to existing routes year-long or with seasonal restrictions” until further route-by-route planning could be completed. The BLM issued decision records for the Dry Creek TMP on December 1, 2009; the Ridgway TMP on May 13, 2013; and the Norwood-Burn Canyon TMP on November 14, 2014. The BLM approved the TMPs after multiple public comment opportunities and coordination with local government. On April 2, 2020, the BLM approved a revised Uncompahgre RMP that includes the Dry Creek, Ridgway, and Norwood-Burn Canyon travel management areas (TMAs) and brings forward from the TMPs the travel management decisions for these areas. This proposed rule would enable the BLM to implement and enforce several key decisions in the TMPs to protect natural resources, enhance public safety, and help improve habitat quality, big-game winter range, and migration corridors. The proposed rule would not affect other existing rules.

This proposed rule would apply to more than 121,000 acres of public land within the Dry Creek, Ridgway, and Norwood-Burn Canyon TMAs administered by the BLM Uncompahgre Field Office in Montrose, Delta, San Miguel, and Ouray counties, Colorado.

This proposed rule is necessary to make enforceable travel management decisions in the TMPs that restrict certain activities and define allowable uses intended to enhance public safety, protect natural and cultural resources, eliminate non-motorized impacts on sensitive species habitat, and reduce conflicts among public land users.

The proposed rule would make enforceable restrictions limiting the operation of mechanized vehicles to designated travel routes identified in the TMPs, with the following exemptions: (1) big game hunters would be permitted to use mechanized game carts off designated travel routes outside of designated wilderness and wilderness study areas only when necessary to retrieve big game animals during authorized hunting seasons; (2) mechanized vehicles would be permitted to pull off designated travel routes up to one vehicle-width from the edge of a roadway to accommodate parking, dispersed camping, or general recreation; and (3) in the Dry Creek TMA, mechanized vehicles would be permitted to pull off within 300 feet of a designated travel route in a designated camping area identified by a BLM sign or map.

The proposed rule would make enforceable seasonal restrictions on travel in certain priority big game wintering habitats identified by the BLM Uncompahgre Field Office, in consultation with Colorado Parks and Wildlife, as the most important big game winter use areas within the TMAs. These seasonal restrictions would allow for human access during non-restricted periods while closing key areas during critical seasons to preserve the health of big game herds.

The proposed rule would make enforceable authorized dispersed camping in the Norwood-Burn Canyon and Dry Creek TMAs unless a BLM sign or map identifies an area as closed to such use, as well as authorized camping in designated campgrounds in the Dry Creek TMA identified by a BLM sign or map. The proposed rule would implement and make enforceable the closure of the Ridgway TMA to overnight use.

In the Ridgway TMA, the proposed rule would make enforceable the requirement that pets be leashed in the Uncompahgre Riverway Area and at all trailheads, as identified by BLM signs or maps, and under audible or physical control in all other areas. In the Norwood-Burn Canyon TMA, the proposed rule would make enforceable the requirement that pets be leashed at trailheads, as identified by BLM signs or maps, and under audible or physical control in all other areas. In the Dry Creek TMA, the proposed rule would make enforceable the requirement that pets be under audible or physical control.

This proposed rule is not a significant regulatory action and is not subject to review by the Office of Management and Budget under Executive Order 12866. The proposed rule would not have an effect of $100 million or more on the economy. The proposed rule would not adversely affect in a material way the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or Tribal Governments or communities. The proposed rule would not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. The proposed rule would not materially alter the budgetary effects of entitlements, grants, user fees, or loan programs, or the rights or obligations of their recipients; nor does it raise novel legal or policy issues. The proposed rule would not affect legal commercial activity; it would merely impose limitations on certain recreational activities on certain public lands to protect natural resources and enhance public safety.

Executive Order 12866 requires each agency to write regulations that are simple and easy to understand. The BLM invites your comments on how to make this proposed rule easier to understand, including answers to questions such as the following:

(1) Are the requirements in the proposed rule clearly stated?

(2) Does the proposed rule contain technical language or jargon that interferes with its clarity?

(3) Does the format of the proposed rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity?

(4) Would the proposed rule be easier to understand if it were divided into more (but shorter) sections?

(5) Is the description of the proposed rule in the SUPPLEMENTARY INFORMATION section of this preamble helpful to your understanding of the proposed rule? How could this description be more helpful in making the proposed rule easier to understand?

Please send any comments you have on the clarity of the proposed rule to one of the addresses specified in the ADDRESSES section.

The proposed supplementary rule would implement key decisions in the TMPs. During the National Environmental Policy Act (NEPA) review for the TMPs, the BLM analyzed the substance of this proposed supplementary rule in three different environmental assessments (EAs): DOI-BLM-CO-SO50-2008-033 EA for the Dry Creek TMP (decision record signed December 1, 2009); DOI-BLM-CO-SO50-2011-0011 EA for the Ridgway TMP (decision record signed May 13, 2013); and DOI-BLM-CO-SO50-2012-019 EA for the Norwood-Burn Canyon TMP (decision record signed November 14, 2014). Electronic copies of the decision records for each TMP are on file at the BLM office at the address specified in the ADDRESSES section above. The BLM has completed a determination of NEPA adequacy (DOI-BLM-CO-S050-2021-0045 DNA) to confirm that the analyses in the TMP EAs, and the associated public involvement procedures, as well as the Uncompahgre Field Office RMP, are sufficient to support this rulemaking.

Congress enacted the Regulatory Flexibility Act of 1980 (RFA), as amended, 5 U.S.C. 601-612, to ensure that government regulations do not unnecessarily or disproportionately burden small entities. The RFA requires a regulatory flexibility analysis if a rule would have a significant economic impact, either detrimental or beneficial, on a substantial number of small entities. The proposed rule would have no effect on business entities of any size. The proposed rule would merely impose reasonable restrictions on certain recreational activities on certain public lands to protect natural resources and the environment and human health and safety. Therefore, the BLM has determined under the RFA that the proposed rule would not have a significant economic impact on a substantial number of small entities.

The proposed supplementary rule does not constitute a “major rule” as defined at 5 U.S.C. 804(2). The proposed rule would merely impose reasonable restrictions on certain recreational activities on certain public lands to protect natural resources and the environment and human health and safety. The proposed rule would not:

(1) Have an annual effect on the economy of $100 million or more;

(2) Cause a major increase in costs or prices for consumers; individual industries; Federal, State, or local agencies; or geographic regions; or

(3) Have significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.

The proposed rule would not impose an unfunded mandate on State, local, or Tribal governments in the aggregate, or the private sector, of more than $100 million per year; nor would it have a significant or unique effect on small governments. The proposed rule would merely impose reasonable restrictions on certain recreational activities on certain public lands to protect natural resources and the environment and human health and safety. Therefore, the BLM is not required to prepare a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq. ).

The proposed rule does not constitute a government action capable of interfering with constitutionally protected property rights. The proposed rule would not address property rights in any form and would not cause the impairment of constitutionally protected property rights. Therefore, the BLM has determined that the proposed rule would not cause a “taking” of private property or require further discussion of takings implications under this Executive Order.

The proposed rule would not have a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, the BLM has determined that this proposed rule does not have sufficient federalism implications to warrant preparation of a Federalism Assessment.

Under Executive Order 12988, the BLM Colorado State Director has determined that the proposed rule would not unduly burden the judicial system and that it meets the requirements of Sections 3(a) and 3(b)(2) of the Order.

In accordance with Executive Order 13175, the BLM has found that the proposed rule does not include policies that have Tribal implications and would have no bearing on trust lands or lands for which title is held in fee status by Indian Tribes or U.S. government-owned lands managed by the Bureau of Indian Affairs.

In developing the proposed rule, the BLM did not conduct or use a study, experiment, or survey requiring peer review under the Information Quality Act (Section 515 of Pub. L. 106-554).

The proposed rule does not comprise a significant energy action. The proposed rule would not have an adverse effect on energy supply, production, or consumption and has no connection with energy policy.

The proposed rule does not contain information collection requirements that the Office of Management and Budget must approve under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3521.

The principal author of the proposed supplementary rule is Caroline Kilbane, Outdoor Recreation Planner, BLM, Uncompahgre Field Office.

For the reasons stated in the preamble, and under the authorities for supplementary rules found at 43 U.S.C. 1740, and 43 CFR 8365.1-6, the BLM Colorado State Director proposes to establish a supplementary rule for BLM-managed public lands in the Dry Creek, Ridgway, and Norwood-Burn Canyon Travel Management Areas located in Montrose, Delta, San Miguel, and Ouray counties, Colorado, to read as follows:

Camping means erecting a tent or a shelter of natural or synthetic materials; preparing a sleeping bag or other bedding material for use; or parking a motor vehicle, motor home, or trailer for the purpose or apparent purpose of overnight occupancy.

Designated travel routes means roads, primitive roads, and trails open or limited to specified modes of travel and identified on: (1) a BLM sign; or (2) a map of designated roads and trails that is maintained and available for public inspection at the BLM Uncompahgre Field Office, Colorado. Designated routes are open or limited to public use in accordance with any limits and restrictions as are specified in the Uncompahgre Resource Management Plan (RMP), the Dry Creek Travel Management Plan (TMP), the Ridgway TMP, the Norwood-Burn Canyon TMP, in future decisions implementing the RMP, or in this supplementary rule. Restrictions may include signs or physical barriers such as gates, fences, posts, branches, or rocks.

Mechanized vehicle means a vehicle using a mechanical device not powered by a motor, such as a bicycle.

Pet means any domesticated or tamed animal that is kept as a companion.

(1) You must not operate or possess a mechanized vehicle except on designated travel routes, unless:

(a) You are using a mechanized game cart for the purpose of retrieving a large game animal during authorized hunting seasons, outside of Congressionally designated wilderness areas and wilderness study areas;

(b) You are using a mechanized vehicle for the purpose of parking within one vehicle-width of the edge of a designated travel route for dispersed camping, where allowed, or general recreation; or

(c) You are using a mechanized vehicle in a designated camping area as designated by a BLM sign or map and are within 300 feet of the designated travel route.

(2) You must not operate or possess a mechanized vehicle on specific routes that cross priority big game wintering habitat from December 1 to April 15 or December 1 to March 31, as designated by a BLM sign or map, except to access private inholdings with proper authorization.

(3) Pets must be controlled by physical or audible means.

You must not operate or possess a mechanized vehicle except on designated travel routes, unless you are using a mechanized game cart for the purpose of retrieving a large game animal during authorized hunting seasons.

(1) All public access is prohibited in priority big game wintering habitat from December 1 to April 30, as designated by a BLM sign or map, except to access private inholdings with proper authorization and within the Uncompahgre Riverway Area.

(2) Pets must remain on leashes within the Uncompahgre Riverway Area and at trailheads designated by a BLM sign or map. In all other areas, pets must be controlled by physical or audible means.

(3) Overnight use is not allowed.

(4) Mechanized vehicles must be parked within one vehicle-width of the edge of a designated travel route.

(1) You must not operate or possess a mechanized vehicle except on designated travel routes, unless:

(a) You are using a mechanized game cart for the purpose of retrieving a large game animal during authorized hunting seasons; or

(b) You are using a mechanized vehicle for the purpose of parking within one vehicle-width of the edge of a designated travel route for dispersed camping or general recreation.

(2) You must not operate or possess a mechanized vehicle on any route that crosses priority big game wintering habitat from December 1 to April 30, as designated by a BLM sign or map, except to access private inholdings with proper authorization.

(3) Dispersed camping is allowed unless closed by a BLM sign or map.

(4) Pets must remain on leashes at trailheads designated by BLM signs or maps. In all other areas, pets must be controlled by physical or audible means.

Any Federal, state, local, or military persons acting within the scope of their official duties; members of an organized rescue or fire-fighting force performing an official duty; and persons who are expressly authorized or approved by the BLM.

Under Section 303(a) of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1733(a) and 43 CFR 8360.0-7, any person who violates any of these supplementary rules on public lands within Colorado may be tried before a United States Magistrate and fined no more than $1,000, imprisoned for no more than 12 months, or both. Such violations may also be subject to the enhanced fines provided for by 18 U.S.C. 3571.

On September 30, 2022, we published a proposed rule (87 FR 59598) to consider revisions to regulations authorizing the issuance of permits for eagle incidental take and eagle nest take under the Bald and Golden Eagle Protection Act (16 U.S.C. 668-668d). The purpose of these revisions is to increase the efficiency and effectiveness of permitting, facilitate and improve compliance, and increase the conservation benefit for eagles. In addition to continuing to authorize specific permits, we propose the creation of general permits for certain activities under prescribed conditions. We propose a general permit option for qualifying wind-energy generation projects, power line infrastructure, activities that may disturb breeding bald eagles, and bald eagle nest take. We propose to remove the current third-party monitoring requirement from eagle incidental take permits. We also propose to update current permit fees and clarify definitions.

With this document, we are announcing an extension of the comment period for an additional 30 days (see DATES , above) to allow the public further opportunity to provide comments on the proposed rule.

If you already submitted comments or information on the September 30, 2022 (87 FR 59598), proposed rule, please do not resubmit them. Any such comments are incorporated as part of the public record of the rulemaking proceeding, and we will fully consider them in the preparation of any final rule.

You may submit your comments and materials by one of the methods listed in ADDRESSES . We request that you send comments only by the methods described in ADDRESSES .

If you submit information via https://www.regulations.gov, your entire submission—including your personal identifying information—will be posted on the website. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on https://www.regulations.gov.

The authority for this action is the Bald and Golden Eagle Protection Act (16 U.S.C. 668-668d).

Table 1—List of Proposed Rules Extended for Public Comment Proposed rule title Federal Register citation Docket No. Florida Keys Mole Skink Threatened Species Status and Critical Habitat Designation 87 FR 58648; September 27, 2022 FWS-R4-ES-2022-0104 Big Pine Partridge Pea, Wedge Spurge, Sand Flax, and Blodgett's Silverbush Critical Habitat Designation 87 FR 62502; October 14, 2022 FWS-R4-ES-2022-0116 Everglades Bully, Florida Pineland Crabgrass, Pineland Sandmat, and Florida Prairie-Clover Critical Habitat Designation 87 FR 62564; October 14, 2022 FWS-R4-ES-2022-0125 Key Ring-Necked Snake and Rim Rock Crowned Snake Endangered Species Status and Critical Habitat Designation 87 FR 62614; October 14, 2022 FWS-R4-ES-2022-0022

On September 27, 2022, we published a proposed rule to list the Florida Keys mole skink as a threatened species under the Act (16 U.S.C. 1531 et seq. ) with a proposed 4(d) rule, and to designate its critical habitat (87 FR 58648). The proposed rule established a 60-day public comment period, ending November 28, 2022. We are extending this comment period until January 12, 2023. Please refer to the proposed rule for more information on our proposed actions and the specific information we seek.

On October 14, 2022, we published proposed rules to designate critical habitat for Big Pine partridge pea, wedge spurge, sand flax, and Blodgett's silverbush (87 FR 62502); to designate critical habitat for Everglades bully, Florida pineland crabgrass, pineland sandmat, and Florida prairie-clover (87 FR 62564); to list the Key ring-necked snake and rim rock crowned snake as endangered species, and to designate critical habitat for the Key ring-necked snake and the rim rock crowned snake (87 FR 62614). The proposed rules established a 60-day public comment period, ending December 13, 2022. We are extending these comment periods until January 12, 2023. Please refer to the proposed rules for more information on our proposed actions and the specific information we seek.

On September 28, 2022, Hurricane Ian made landfall along the southwest Florida coast. Due to the impacts from the hurricane and the ongoing recovery efforts, the Service received multiple requests for additional time to review and comment on the proposed rules. We are therefore extending the comment period for these proposed rules (see table 1) by a minimum of an additional 30 days, until January 12, 2023.

If you already submitted comments or information on the September 27, 2022 (87 FR 58648) and October 14, 2022 (87 FR 62502, 87 FR 62564, 87 FR 62614) proposed rules, please do not resubmit them. Any such comments are incorporated as part of the public record of the rulemaking proceeding, and we will fully consider them in the preparation of our final determination.

Comments should be as specific as possible. Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you assert. Please note that submissions merely stating support for, or opposition to, the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs us to make determinations as to whether any species is an endangered species or a threatened species “solely on the basis of the best scientific and commercial data available.”

You may submit your comments and materials by one of the methods listed in ADDRESSES . We request that you send comments only by the methods described in ADDRESSES .

If you submit information via https://www.regulations.gov, your entire submission—including your personal identifying information—will be posted on the website. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on https://www.regulations.gov.

The primary authors of this document are the Ecological Services staff of the Southeast Regional Office, U.S. Fish and Wildlife Service.

The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq. ).