Federal Register / Vol. 87, No. 111 / Thursday, June 9, 2022 / Rules and Regulations 35097 

DEPARTMENT OF AGRICULTURE 

Forest Service 

36 CFR Part 222 

RIN 0596–AD45 

Assessing Fees for Excess and 

Unauthorized Grazing 

AGENCY: Forest Service, Agriculture 

(USDA). 

ACTION: Final rule. 

SUMMARY: The Forest Service (Agency), 

U.S. Department of Agriculture, hereby 

adopts this final rule to amend existing 

regulations for the provision of an 

option to waive excess and 

unauthorized grazing fees when excess 

or unauthorized grazing is determined 

to be a result of unforeseen or 

uncontrollable circumstances. This 

standard is consistent with the practices 

of the U.S. Department of the Interior, 

Bureau of Land Management, as 

recommended by the Government 

Accountability Office (GAO) in its July 

2016 report to the Committee on Natural 

Resources, House of Representatives, 

Unauthorized Grazing, Actions Needed 

to Improve Tracking and Deterrence 

Efforts. 

DATES: This rule is effective August 8, 

2022. 

FOR FURTHER INFORMATION CONTACT: 

David Lytle, Director, Forest and 

Rangeland Management and Vegetation 

Ecology, 928–419–7738, David.Lytle@

usda.gov. Individuals who use 

telecommunication devices for the deaf/ 

hard-of-hearing (TDD) may call the 

Federal Relay Service (FRS) at 1–800– 

877–8339, 24 hours a day, every day of 

the year, including holidays. 

SUPPLEMENTARY INFORMATION: 

Background 

The Forest Service manages National 

Forest System (NFS) lands that provide 

forage for domestic livestock grazing. 

The Forest Service’s authority to 

regulate livestock grazing comes from 

the Organic Administration Act of 1897, 

as amended (16 U.S.C. 551). The Forest 

Service first introduced regulations 

requiring grazing permits and imposing 

fees for grazing on the forest reserves, 

and later the national forests, in 1906. 

The Forest Service managed grazing 

under its general authorities until 1950, 

when Congress enacted the GrangerThye Act (16 U.S.C. 580l), specifically 

authorizing the Secretary of Agriculture 

to issue grazing permits on NFS lands 

and other lands administered by the U.S 

Department of Agriculture. The Forest 

Service permits the occupancy and use 

of NFS lands by domestic livestock 

through grazing and livestock use 

permits in accordance with the 

regulations at 36 CFR part 222. Pursuant 

to 36 CFR 222.50(a), the Agency is 

required to charge fees ‘‘for all livestock 

grazing or livestock use of National 

Forest System lands, or other lands 

under Forest Service control.’’ 

Congress asked the Government 

Accountability Office (GAO) to examine 

what is known about the frequency and 

extent of unauthorized grazing on 

Federal lands and its effects. This 

examination included a review of the 

Bureau of Land Management (BLM) and 

Forest Service efforts to detect, deter, 

and resolve unauthorized grazing. 

In July 2016, GAO issued a Report to 

the Committee on Natural Resources, 

House of Representatives, Unauthorized 

Grazing, Actions Needed to Improve 

Tracking and Deterrence Efforts (GAO– 

16–559). In the report, the GAO found 

that the frequency and extent of 

unauthorized grazing on NFS lands is 

largely unknown because according to 

Agency officials, the Agency handles 

most incidents informally (for example, 

with a telephone call) and does not 

document them. The incidents that were 

documented involved formal action 

taken by the Agency rangeland 

management program or law 

enforcement staff, such as issuance of a 

Notice of Non-Compliance and/or a Bill 

for Collection. 

The GAO recommended that the 

Forest Service record all incidents of 

unauthorized grazing, including those 

resolved informally, as well as revise 

the excess and unauthorized grazing 

penalty structure to reflect the 

commercial value of forage. The Agency 

is responding to these two 

recommendations, but not as a part of 

this rulemaking process. Instead, the 

Agency has developed direction for 

implementing these two 

recommendations in the proposed 

Forest Service Manual and Handbook 

for Rangeland Management, which was 

released for public review and comment 

on December 18, 2020, for a 60-day 

comment period and extended for an 

additional 60-day comment period, 

ending April 17, 2021. (85 FR 82432, 86 

FR 9048). 

The GAO report also recommended 

the Forest Service either amend the 

regulations to allow the option to 

resolve excess and unauthorized grazing 

use without charging fees in some 

instances or follow the existing 

regulations by determining and charging 

a grazing use penalty for all 

unauthorized and excess use. Given the 

vast amount of land covered, and the 

wide array of natural and unnatural 

events that may occur across a variety 

of landscapes, the Agency believes it is 

important to have reasonable flexibility 

that allows for a commonsense 

approach to resolving certain instances 

of excess and unauthorized grazing use. 

In limited circumstances, when the use 

occurs because of unforeseen or 

uncontrollable circumstances, having 

the ability to waive excess and 

unauthorized grazing use fees will help 

to quickly resolve the issue while 

maintaining cooperative relationships. 

Therefore, the Forest Service amends its 

regulations at 36 CFR 222.50(h) to 

include an option for waiving the excess 

and unauthorized use fees when excess 

or unauthorized grazing use is a result 

of unforeseen or uncontrollable 

circumstances and meets all three 

conditions identified in the rule. Per the 

regulations at 36 CFR 261.2, 

unauthorized livestock are defined as 

livestock which are not authorized to be 

upon the land on which the livestock 

are located, and which is not related to 

use authorized by a grazing permit. 

‘‘Excess livestock’’ are defined as 

livestock owned by the holder of a 

National Forest System grazing permit, 

but grazing on NFS lands in greater 

numbers, or at times or places other 

than permitted in Part 1 of the grazing 

permit or authorized on the annual Bill 

for Collection (FSM 2230.5). 

On November 2, 2020, the Agency 

published a proposed rule (85 FR 

69303) to revise 36 CFR 222.1(b) to add 

definitions of ‘‘non-permittee’’ and 

‘‘non-willful,’’ to remove the numbering 

of definitions in that section (36 CFR 

222.1(b)) and revise 36 CFR 222.50(h) to 

provide an option for nonmonetary 

settlement for excess or unauthorized 

grazing use. Following a 30-day 

comment period, the Agency received 

33 unique, individual comments in 

response to the proposed rule. Most of 

the unique comments expressed support 

for the Agency’s effort to provide an 

option to resolve excess and 

unauthorized grazing use cases without 

charging fees when the grazing use was 

at no fault of the livestock owner, while 

some commenters expressed confusion 

or concern regarding terms and 

statements, such as ‘‘nonmonetary 

settlement,’’ ‘‘non-willful,’’ and ‘‘in the 

interest of the United States.’’ A detailed 

summary of comments on the proposed 

rule and the Agency’s responses, 

including changes made to the final rule 

language, is set forth below. 

Summary of the Final Rule 

The final rule carries forward the 

proposed amendments in the definitions 

section at 36 CFR 222.1(b), adopting the 

definition of ‘‘non-permittee,’’ as well as 


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35098 Federal Register / Vol. 87, No. 111 / Thursday, June 9, 2022 / Rules and Regulations 

restating the definitions section to 

remove the numbering and update the 

formatting to be consistent with the 

Federal Register Document Drafting 

Handbook (August 2018 Edition, 

Revision 1.1 dated August 9, 2019; 

National Archives and Records 

Administration). Minor grammatical 

and technical edits were also made. 

The final rule does not add a 

definition for ‘‘non-willful’’, nor does it 

use that term in revised 36 CFR 

222.50(h). The proposed rule used and 

defined the term ‘‘non-willful’’ as ‘‘an 

action which is inadvertent or 

accidental, and not due to gross 

negligence.’’ Several commenters 

expressed views that by using the term 

‘‘non-willful’’, the Forest Service was 

implying a requirement that a 

determination of intent be made. The 

Forest Service agrees; therefore, we do 

not propose to require a determination 

of intent for the excess or unauthorized 

grazing use. Accordingly, to avoid 

confusion, the term ‘‘non-willful’’ has 

been removed in the final rule at 36 CFR 

222.50(h) and is no longer in the 

definitions section at 36 CFR 222.1(b). It 

is replaced with the terms ‘‘unforeseen’’ 

and ‘‘uncontrollable’’ in the final rule to 

describe the circumstances for when 

excess or unauthorized use can be 

considered for a fee waiver. The terms 

‘‘unforeseen’’ and ‘‘uncontrollable’’ are 

not added to the definitions section in 

the final rule, and the ordinary meaning 

of these terms shall apply. The Forest 

Service authorized officer will have the 

discretion to decide when a 

circumstance leading to unauthorized 

grazing was unforeseen or 

uncontrollable. 

The final rule also does not use the 

term ‘‘non-monetary’’, which the 

proposed rule used to characterize the 

action of not charging fees for excess 

and unauthorized grazing use that was 

considered non-willful. Commenters 

expressed confusion over the term 

‘‘non-monetary settlement’’ and exactly 

what it meant. Some commenters 

expressed views that fees should be 

charged for all grazing use. To clarify 

intent in the final rule, the term ‘‘nonmonetary settlement’’ has been replaced 

with language allowing an option to 

‘‘waive’’ the fees. The option to waive 

the fees is intended to make the rule 

clear and concise such that all excess 

and unauthorized grazing use shall be 

charged unless the specific conditions 

set forth in the regulation are met, at 

which time the authorized officer may 

then decide to ‘‘waive’’ the excess or 

unauthorized grazing use fees. The only 

instances of excess and unauthorized 

use where a waiver of excess or 

unauthorized grazing use fees may be 

considered are those instances that 

occur after this rule has become 

effective. 

The final rule carries forward the 

proposed amendment to 36 CFR 

222.50(h) to provide the authorized 

officer an option to waive the excess or 

unauthorized grazing use fees when the 

use is a result of unforeseen or 

uncontrollable circumstances, and when 

certain conditions set forth in the 

regulation are met. 

The final rule carries forward the 

removal of the reference in the current 

regulation to the fee being adjusted by 

the same indexes used to adjust the 

regular fee, as well as the removal of the 

reference to an unvalidated permit and 

replaces it with the four most common 

situations in which the Forest Service 

encounters excess or unauthorized use. 

There were a few commenters who 

expressed views that the Agency was 

proposing to not charge for any excess 

and unauthorized grazing use. 

Therefore, language has been added to 

the final rule to highlight the 

relationship to 36 CFR 222.50(a) and 

make it clear that a grazing fee shall be 

charged for all grazing use. As always, 

the exact rate applied to the grazing use 

depends on whether such use is 

authorized or not. Title 36 CFR 222.51, 

222.52, 222.53, and 222.54 describe the 

grazing fees charged for authorized 

grazing use and are not affected by this 

rulemaking. The excess and 

unauthorized use rate is applied to all 

grazing use made without authorization, 

which is described within 36 CFR 

222.50(h). The final rule allows the 

option to waive the excess and 

unauthorized grazing use fee when the 

use was a result of unforeseen or 

uncontrollable circumstances and all 

three of the specified conditions set 

forth in the regulation at 36 CFR 

222.50(h) are met. 

Commenters expressed concern that 

the permittee or non-permittee would 

not be contacted or that they would not 

be required to take corrective action 

relative to excess or unauthorized use. 

Therefore, the final rule language was 

updated to make it clear that livestock 

would have to be removed by the 

permittee or non-permittee within the 

timeframe required by the authorized 

officer. The clarification was added to 

the first condition of the criteria that is 

required to be met before a line officer 

can consider a waiver of fees for excess 

or unauthorized use. This change is also 

warranted as the Agency would be 

unable to determine if conditions #2 

and #3 of the criteria have been met if 

the livestock remains on NFS lands. 

Commenters expressed concern and 

confusion over condition #4 of the 

criteria as presented in the proposed 

rule. Some commenters felt that it is 

never in the interest of the United States 

to allow excess and unauthorized use to 

occur free of charge, while other 

commenters felt that condition #4 

allowed for too much discretion and 

would result in inconsistency across the 

Agency. Due to the comments received 

and internal Agency discussion of a 

similar nature, condition #4 of the 

criteria was removed to facilitate the 

clear and consistent implementation of 

the rule. 

Some commenters expressed concern 

about using the terms ‘‘significant’’ in 

condition #2 and ‘‘significantly’’ in 

condition #3 of the criteria. The basis of 

the concern is related to how 

‘‘significance’’ would be determined on 

the ground in each excess and 

unauthorized use case. For the purposes 

of the final rule, the meaning of the 

terms ‘‘significant’’ and ‘‘significantly’’ 

are unrelated to the terms as used in the 

context of the National Environmental 

Policy Act of 1969. Instead, the Forest 

Service uses the term ‘‘significant’’ in 

condition #2 in the ordinary meaning of 

the word to help field staff differentiate 

between a use level that is undetectable 

or slightly used versus a level that 

exceeds grazing standards that are 

common for the area. The level of forage 

use that could be considered significant 

will vary across the National Forest 

System lands because different resource 

conditions exist across those lands at 

any given time. The Forest Service 

authorized officer will consider the sitespecific conditions to inform the 

decision as to whether the amount of 

forage consumed as a result of excess or 

unauthorized grazing was significant. 

The term ‘‘significantly’’ is used in 

condition #3 of the criteria to help field 

staff differentiate between levels of 

impacts resulting from excess or 

unauthorized use. The term is used in 

the ordinary sense or meaning of the 

word to allow Forest Service personnel 

to differentiate between impacts that are 

undetectable or minor in nature where 

no restoration or intervention efforts are 

needed versus impacts that impair the 

management and viability of the area, 

creating a situation where rehabilitation 

or intervention is needed, or other 

management options need to be 

employed. 

Comments on the Proposal 

General Comments 

Comments expressed a wide range of 

opinions—both strongly for and 

against—the proposed rule. Comments 

expressing support for the proposed rule 

stated that it was a fair means to deal 


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Federal Register / Vol. 87, No. 111 / Thursday, June 9, 2022 / Rules and Regulations 35099 

with excess and unauthorized use that 

was a result of circumstances beyond 

the livestock owner’s control, or 

otherwise due to unforeseen or 

uncontrollable circumstances. Other 

comments, however, opposed various 

provisions of the proposed rule, 

expressing concern that the revisions 

could: (1) reward intentional bad 

behavior; (2) result in increased 

overgrazing and greater resource 

damage; (3) result in increasing excess 

and unauthorized use; (4) result in less 

incident documentation. 

Response: The Agency notes the 

general comments in support of or in 

opposition to the rule. The Agency has 

carefully considered the input from the 

public, other government entities, and 

Tribes and has made several 

adjustments to the final rule to address 

the concerns described above. These 

changes are described in more detail 

below and include, for example, 

changing the terminology from ‘‘nonmonetary settlement’’ to an option to 

‘‘waive’’ the excess and unauthorized 

use fees. Throughout the rulemaking 

process, the Agency’s goal has been to 

develop a final rule that enables the 

Agency to have an option to not charge 

for excess and unauthorized use when 

it is minimal and due to unforeseen or 

uncontrollable circumstances and not 

due to negligence of the livestock 

owner. The final rule achieves this goal 

and is consistent with the practices of 

the Bureau of Land Management and 

recommendations of the GAO July 2016 

report. 

The Agency’s final rule does not 

eliminate or modify the existing policy 

to charge for all grazing use, to possibly 

take administrative action against a 

grazing permit, or to apply the penalties 

at 36 CFR part 261. Instead, it adds the 

option to waive the excess and 

unauthorized use fees when the use was 

due to unforeseen and uncontrollable 

circumstances and the three criteria in 

the final rule are met. Further, the 

Agency will continue to comply with 

the requirements of all applicable laws 

and regulations and continue to 

document and charge for all livestock 

grazing use and may waive the 

associated fees under limited 

circumstances when all the required 

criteria are met. 

The three required criteria that must 

be met are: (1) The excess or 

unauthorized use was a result of 

unforeseen or uncontrollable 

circumstances on behalf of the permittee 

or non-permittee and the livestock 

associated with such use were removed 

by the permittee or non-permittee 

within the timeframe required by the 

authorized officer; (2) The forage 

consumed by the excess or 

unauthorized use is not significant; and 

(3) National Forest System lands have 

not been damaged significantly by the 

excess or unauthorized use. 

Criterion #1 (so long as criterions 2 

and 3 are also met) will isolate the 

excess or unauthorized livestock use to 

the single unforeseen or uncontrollable 

event. 

Criterion #2 will ensure that forage 

use made during the excess or 

unauthorized use is considered. It will 

help field staff differentiate between a 

use level that is undetectable or slightly 

used versus a level that exceeds grazing 

standards that are common for the area 

to determine if a fee waiver may be an 

available option or not (so long as 

criterions 1 and 3 are also met). 

Criterion #3 will ensure that the 

excess or unauthorized livestock use did 

not damage other aspects of the National 

Forest System lands. It is intended to 

allow staff to differentiate between 

impacts that are undetectable or minor 

in nature where no restoration or 

intervention efforts are needed versus 

impacts that impair the management 

and viability of the area, creating a 

situation where rehabilitation or 

intervention is needed, or other 

management options need to be 

employed. This criterion along with 

criterions 1 and 2 are intended to act in 

concert when reviewing the site-specific 

information to determine if the waiver 

of the excess and unauthorized use fee 

would be appropriate. 

Comment: Some commenters suggest 

that there is a need to require direction 

to record all incidents of excess and 

unauthorized grazing use. 

Response: The U.S. Forest Service has 

determined the development of policy 

to document all occurrences of excess 

and unauthorized grazing use was best 

resolved through internal administrative 

direction. Therefore, in April 2019, the 

Washington, DC office sent a letter to 

the Regional Foresters, directing 

documentation and billing for all cases 

of excess and unauthorized grazing use 

that equals or is greater than one head 

month of use. All documentation is to 

be filed in the 2230 grazing permit files 

and database for excess use and is to be 

documented and resolved in 

cooperation with law enforcement 

personnel for unauthorized use. The 

final rule provides an option for waiver 

of excess or unauthorized use fees when 

excess and unauthorized grazing use is 

due to unforeseen or uncontrollable 

circumstances, and cases will continue 

to be documented in the 2230 grazing 

permit files and database, even if no 

excess or unauthorized use fees were 

charged. 

In December 2020, the U.S. Forest 

Service released the proposed rangeland 

management directives (Forest Service 

Manual (FSM) 2200 and Forest Service 

Handbook (FSH) 2209.13 and 2209.16). 

The proposed rangeland management 

directives include updated requirements 

and direction for documenting all 

excess and unauthorized grazing use 

and working with the livestock owner to 

resolve the incident. A checklist has 

been developed to be included as an 

exhibit in the final directives. The 

exhibit will serve as an example of how 

to document occurrences of excess and 

unauthorized use and if the three 

criteria have been met to allow the 

authorized officer the option to waive 

the fees. Future updates to the 

Rangeland Information Management 

System database are being considered to 

further aid in tracking and future 

reporting of excess and unauthorized 

grazing use and any waivers of 

associated fees. 

Comment: Some commenters suggest 

the Forest Service comply with the 

existing regulations instead of amending 

regulations to allow for not charging an 

excess and unauthorized use fee. 

Response: The GAO report 

recommended the Forest Service either 

amend the regulations to allow the 

option to resolve excess and 

unauthorized grazing use without 

charging fees in some instances or 

follow the existing regulations by 

determining and charging a grazing use 

penalty for all unauthorized and excess 

use. Given the vast amount of land 

covered, and the wide array of natural 

and unnatural events that may occur 

across a variety of landscapes, the 

Agency believes it is important to have 

reasonable flexibility which allows for a 

commonsense approach to resolving 

certain instances of excess and 

unauthorized grazing use. In limited 

circumstances, when the use occurs 

because of unforeseen or uncontrollable 

circumstances, having the ability to 

waive excess and unauthorized grazing 

use fees will help to quickly resolve the 

issue while maintaining cooperative 

relationships. Therefore, the Forest 

Service amends its regulations at 36 

CFR 222.50(h) to include an option for 

waiving the excess and unauthorized 

use fees when excess or unauthorized 

grazing use is a result of unforeseen or 

uncontrollable circumstances and meets 

all three conditions identified in the 

rule. 

Comment: Some commenters 

requested that the excess and 

unauthorized grazing penalty structure 

be revised, and fees increased to better 

deter excess and unauthorized grazing 

use. 


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35100 Federal Register / Vol. 87, No. 111 / Thursday, June 9, 2022 / Rules and Regulations 

Response: The U.S. Forest Service 

determined that the issue of revising the 

excess and unauthorized grazing fee was 

best resolved through internal 

administrative direction. The grazing 

penalty structure is addressed 

administratively through revision of the 

Forest Service Handbook (FSH) 2209.13 

which was published December 18, 

2020, for public comment (85 FR 

82432). The FSH provides direction for 

calculating and assessing the annual 

excess and unauthorized grazing use 

fees. The proposed FSH 2209.13 

includes updates to the excess and 

unauthorized use rate which reflect the 

commercial value of forage. 

Comment: Some commenters 

suggested avoiding the term ‘‘nonwillful’’ or better define the term and 

differentiate between ‘‘non-willful’’ and 

‘‘willful’’. 

Response: The U.S. Forest Service is 

no longer including the term ‘‘nonwillful’’ within the rule language and 

the definitions section as finalized, thus 

eliminating confusion over any 

perceived requirement to assess the 

intent of the livestock owner. Instead, 

the terms unforeseen and uncontrollable 

are used within criteria #1 to better 

articulate what circumstances must 

exist for the authorized officer to 

consider waiving excess and 

unauthorized grazing use fees. 

The Forest Service will rely upon the 

ordinary meaning of the terms 

unforeseen and uncontrollable. As 

defined by the Oxford Languages 

Dictionary, unforeseen is an adjective 

meaning ‘‘not anticipated or predicted’’, 

‘‘unplanned’’, ‘‘unexpected’’. As defined 

by the Oxford Languages Dictionary, 

uncontrollable is an adjective meaning 

‘‘not controllable’’, ‘‘out of control’’, 

‘‘unmanageable’’. 

It is the livestock owner’s 

responsibility to keep livestock off 

National Forest System lands when they 

are not permitted and authorized to 

make use of those lands. However, there 

are circumstances that occur beyond the 

control of the livestock owner that 

cannot be predicted. For example, when 

a predator attacks a band of sheep 

causing the sheep to scatter and move 

outside the authorized routing pattern 

or allotment area. This example 

demonstrates how the predation event 

caused the sheep to be in areas that 

were not authorized, resulting in excess 

use. The predator attack was unforeseen 

and uncontrollable by the permittee and 

the Forest Service. 

Another example would be when an 

automobile accident occurs and 

damages a private landowner’s fence. 

The private landowner’s llamas get out 

and are grazing on National Forest 

System lands. This example 

demonstrates how the automobile 

accident damaged the fence, allowing 

the llamas to get out and graze on 

National Forest System lands, resulting 

in unauthorized use. The automobile 

accident was unforeseen and 

uncontrollable by the landowner and 

the Forest Service. 

The terms unforeseen or 

uncontrollable are intended to strike a 

balance between providing the Forest 

Service reasonable flexibility when 

those types of situations arise while also 

ensuring undesirable behavior and/or 

repeat instances of excess and 

unauthorized use are addressed to 

reform the behavior and deter any future 

instances. 

Comment: Some commenters 

suggested that the rule should not apply 

to National Grasslands or grazing 

associations because grazing 

associations are issued grazing 

agreements (which the commenter 

suggested are not a type of term grazing 

permit). They suggested the rule is not 

consistent with the Bankhead-Jones 

Farm Tenant Act of 1937 or that a 

specific rule should be written that 

describes how grazing associations 

would apply the rule when managing 

their members. 

Response: Authority for managing the 

National Grasslands comes from Title III 

of the Bankhead-Jones Farm Tenant Act 

(BJFTA) of 1937, as amended. The 

portions of Title III that are most 

applicable are found in Sections 31 (7 

U.S.C. 1010) and 32(b) and (f) (7 U.S.C. 

1011). In these provisions, the Secretary 

of Agriculture was granted authority 

‘‘[t]o make such rules and regulations as 

he deems necessary to prevent 

trespasses and otherwise regulate the 

use and occupancy of property acquired 

by, or transferred to, the Secretary for 

the purposes of this subchapter, in order 

to conserve and utilize it or advance the 

purposes of this subchapter’’ (7 U.S.C. 

1011(f)). This includes the regulations 

found in 36 CFR part 222. 

National Grasslands are part of the 

National Forest System per Section 10 

of the Forest and Rangeland Renewable 

Resources Planning Act of 1974 (16 

U.S.C. 1609). Management of the 

National Grasslands as part of the 

National Forest System must be 

conducted in a manner that is consistent 

with the regulations that apply to 

National Forest System lands which 

does include the revised regulations 

resulting from this final rulemaking. 

Regarding the comment that ‘‘a 

specific rule should be written that 

describes how grazing associations 

would apply the rule when managing 

their members,’’ a separate rule specific 

to National Grasslands is not needed. As 

stated above, the management of the 

National Grasslands as part of the 

National Forest System must be 

conducted in a manner that is consistent 

with the regulations that apply to all 

National Forest System lands. The 

Forest Service enters into grazing 

agreements with grazing associations 

which are a type of term grazing permit 

(36 CFR 222.3(c)(1)). The Forest Service 

applies law, regulation and policy to the 

association when administering the 

grazing agreement. The grazing 

associations are then responsible for 

managing their members’ livestock 

grazing on the lands identified in the 

grazing agreement. How a grazing 

association manages its members is 

articulated in the association’s rules of 

management (ROM). There may be 

times where an association’s ROM 

might be more restrictive than Federal 

law, regulation, or Forest Service policy 

and/or procedure, but they cannot be 

less restrictive. This includes the 

revised regulations related to excess 

grazing use resulting from this final 

rulemaking. This means that grazing 

associations are accountable to the 

Forest Service for any excess use made 

by their members, and the Forest 

Service may waive the fee for the 

association if all three conditions are 

met. Alternatively, if any of the criteria 

are not met, then the Forest Service will 

charge the association for the grazing 

use. 

There are some allotments where 

direct permittees and grazing 

associations are authorized to graze 

livestock in common. In those instances, 

the Forest Service will apply this rule to 

all parties holding grazing permits, 

whether they are direct grazing permits 

or grazing permits in the form of a 

grazing agreement. 

Regulatory Certifications 

Regulatory Planning and Review 

For rules designated as significant by 

the Office of Information and Regulatory 

Affairs (OIRA) in the Office of 

Management and Budget, Executive 

Order (E.O.) 12866, as supplemented by 

E.O. 13563, directs agencies to conduct 

a regulatory impact analysis, including 

an assessment of costs and benefits (i.e., 

cost-benefit analysis) of the regulatory 

action and its alternatives, and select 

regulatory approaches that maximize 

net benefits to both the Government and 

the public regarding economic impacts, 

the environment, public health and 

safety, distributive impacts, and equity 

considerations. 

Executive Order 13563 emphasizes 

the importance of quantifying both costs 


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Federal Register / Vol. 87, No. 111 / Thursday, June 9, 2022 / Rules and Regulations 35101 

and benefits, of reduced costs, of 

harmonized rules, and of promoting 

flexibility. Analysis is required to assess 

both the costs and benefits of the 

intended regulation, recognizing 

quantifiable analysis is not always 

possible, but that a reasoned 

determination be made that the benefits 

justify the regulatory costs. The final 

rule has been determined to be 

significant for the purposes of Executive 

Order 12866, and therefore, has been 

reviewed by the Office of Management 

and Budget. 

Costs and benefits can accrue to 

ranchers, private industry, the agency, 

and to the public. Generally, industry 

could benefit from fewer penalty fees for 

excess and unauthorized use 

determined to meet the three 

circumstances identified in the rule. 

The agency could benefit from less time 

and resources spent assessing and 

collecting the penalty fees. 

The Agency conducted a regulatory 

impact analysis for the final rule to 

amend existing regulations to allow for 

excess and unauthorized grazing fees to 

be waived if the use is a result of 

‘‘unforeseen’’ or ‘‘uncontrollable’’ 

circumstances, a departure from existing 

policy which doesn’t formally allow for 

such considerations (36 CFR part 222, 

subpart C). This analysis considers costs 

and benefits to the agency 

(Government), livestock operators, and 

the public. 

The regulatory impact analysis 

compares impacts between the current 

and final rules. Savings to industry are 

minimal but seen as a benefit. The 

savings are estimated from an average 

cost of fees assessed multiplied by the 

average number of excess or 

unauthorized use cases eligible for fee 

waivers per year. To determine the 

anticipated number of excess or 

unauthorized use cases eligible for fee 

waivers under the final rule, the agency 

used data from 2017 to 2020 on the 

number of livestock, the duration the 

livestock were on National Forest 

System lands, and the total amount of 

head months associated with the excess 

or unauthorized use cases. 

The cost-benefit analysis identifies 

the potential economic costs and 

benefits associated with the final rule. 

Changes in benefits and cost savings 

result from (1) waived fees for excess 

and unauthorized use and (2) associated 

changes in processing times for the 

waivers and fees. Baseline conditions 

are equal to operations under existing 

regulations and policy. 

While the regulations set forth in 36 

CFR part 222 apply to all National 

Forest System land, a review of grazing 

records from the last four years show 

that permit-holders and land managers 

in the western United States would be 

most impacted by the rule change. In 

2020 alone, authorized livestock in the 

Forest Service’s Northern (Region 1), 

Rocky Mountain (Region 2), 

Southwestern (Region 3), and 

Intermountain (Region 4) regions 

accounted for 88 percent of total 

authorized use on National Forest 

System lands. These regions encompass 

the states of Arizona, Colorado, Idaho, 

Montana, Nebraska, Nevada, New 

Mexico, North Dakota, South Dakota, 

Utah, and Wyoming. Though excess and 

unauthorized use can occur on any 

National Forest System lands, by 

permittees and non-permittees, it is 

important to understand the magnitude 

of grazing and distribution across the 

land. The rule is not expected to change 

the production of forage or livestock; 

therefore, economic impacts from 

grazing on National Forest System lands 

are not expected to change. We do not 

expect the excess or unauthorized use to 

change, only the penalties would 

change for those uses that meet the 

conditions to have the fees waived. 

It is unlikely the rule will adversely 

affect the natural resources or visiting 

public, as a condition for the rule to 

apply is that ‘‘the forage consumed by 

the excess or unauthorized use was not 

significant, and National Forest System 

lands had not been damaged 

significantly by the excess or 

unauthorized use.’’ 

Under baseline conditions, the cost is 

the time for industry and the agency to 

process bills for collection from excess 

or unauthorized use. Each reported case 

of excess or unauthorized use requires 

a bill for collection to be processed. In 

addition to the billing and collection, 

Forest Service staff also need to assess 

the damage and determine the extent of 

the bill. 

Overall, we do not expect costs to 

industry, the agency, or the public from 

the final rule. The time to process each 

bill for collection will not change. The 

costs will likely be lower than the 

baseline condition because less time 

would be spent overall on bills for 

collection because some cases could 

have fees waived. 

As a whole, the agency believes that, 

though benefits have not been 

monetized, the rule will have positive 

net benefits due to the improved 

relationships and more timely 

resolution of excess and unauthorized 

use to minimize resource damage. 

Energy Effects 

The USDA has considered the final 

rule in the context of Executive Order 

13211, Actions Concerning Regulations 

That Significantly Affect Energy Supply, 

Distribution, or Use, issued May 18, 

2001. The USDA has determined the 

final rule does not constitute a 

significant energy action as defined in 

Executive Order 13211. Therefore, a 

statement of energy effects is not 

required. 

E-Government Act 

The USDA is committed to complying 

with the E-Government Act, to promote 

the use of the internet and other 

information technologies to provide 

increased opportunities for citizen 

access to government information and 

services, and for other purposes. 

Civil Rights Impact Analysis 

A Civil Rights Impact Analysis (CRIA) 

was conducted in accordance with 

USDA Departmental Regulation (DR) 

4300–4, to determine if the 

implementation of the final rule would 

have disproportionate effects or adverse 

impacts on employees or program 

beneficiaries, because of membership in 

protected groups identified in USDA DR 

4300–4 (regarding Civil Rights) and DR 

5600–002 (regarding Environmental 

Justice), particularly women, ethnic and 

racial minorities, and people with 

disabilities. The final rule has been 

analyzed to ensure compliance with 

USDA’s DR 4300–4, and it is 

determined that no adverse impacts on 

protected groups are expected as a result 

of the implementation of the final rule. 

Congressional Review Act 

Pursuant to the Congressional Review 

Act (5 U.S.C. 801 et seq.), OIRA has 

designated this final rule as ‘not a major 

rule’ as defined by 5 U.S.C. 804(2). 

National Environmental Policy Act 

The final rule would provide an 

option for the authorized officer to 

waive the excess or unauthorized 

grazing use fee when the use met the 

following criteria: (1) the excess or 

unauthorized use was a result of 

unforeseen or uncontrollable 

circumstances on behalf of the permittee 

or non-permittee and the livestock 

associated with such use were removed 

by the permittee or non-permittee 

within the timeframe required by the 

authorized officer; (2) the forage 

consumed by the excess or 

unauthorized use is not significant; and 

(3) National Forest System lands have 

not been damaged significantly by the 

excess or unauthorized use. Agency 

regulations at 36 CFR 220.6(d)(2) 

exclude from documentation in an 

environmental assessment or 

environmental impact statement, as well 

as in a decision memo, rules, 


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regulations, or policies to establish 

Service-wide administrative procedures, 

program processes, or instructions. The 

amendment to §§ 222.50(h) and 222.1(b) 

addresses the penalty for excess and 

unauthorized grazing actions taken on 

National Forest System land and 

provides a definition for a term used in 

the amended language. The final 

language removes reference to an 

unvalidated permit and replaces it with 

the four most common situations that 

the Forest Service considers excess or 

unauthorized use, which is not intended 

to be an exclusive list. This final rule 

fits within this category because it is a 

service-wide administrative action 

regulating financial policy and fees 

limited to determination of waiver of 

excess or unauthorized use fees. 

Moreover, an administrative action that 

regulates financial policy and waiver of 

fees in a limited situation is not 

authorizing any ground disturbing 

activities, nor is it authorizing any 

activities in areas where there are 

extraordinary circumstances that exist 

per 36 CFR 220.6(b). Thus, the Agency 

has concluded that the final rule falls 

within this category of actions and that 

no extraordinary circumstances exist 

which would require the preparation of 

an environmental assessment or 

environmental impact statement. 

Regulatory Flexibility Act Analysis 

The Regulatory Flexibility Act (RFA) 

requires the agency to ‘‘prepare and 

make available for public comment an 

initial regulatory flexibility analysis’’ 

which will ‘‘describe the impact of the 

proposed rule on small entities.’’ (5 

U.S.C. 603(a)). Section 605 of the RFA 

allows an agency to certify a rule, in lieu 

of preparing an analysis, if rulemaking 

is not expected to have a significant 

economic impact on a substantial 

number of small entities. 

A certification must include, at a 

minimum, a description of the affected 

entities and the impacts that clearly 

justify the ‘‘no impact’’ certification. 

The agency’s reasoning and 

assumptions underlying its certification 

should be explicit to obtain meaningful 

public comment and thus receive 

information that would be used to reevaluate the certification. 

For the changes to 36 CFR part 222, 

subpart C, this rule affects permittees 

classified under the North American 

Industry Classification System (NAICS), 

as follows: 

D NAICS Code 112410, Sheep Farming 

D NAICS Code 112111 Beef Cattle 

Ranching and Farming 

Most Forest Service grazing 

permittees would be considered small 

entities under SBA standards (owneroperators, some with LLC. designations, 

and others operating under an 

agreement with Grazing Associations). 

The central purpose of the final rule is 

the flexibility to informally resolve 

excess and unauthorized grazing 

incidents, that are a result of unforeseen 

or uncontrollable circumstances by 

waiving the excess or unauthorized 

grazing penalties. Informal resolution 

involves the permittee or non-permittee 

removing the livestock following a 

phone call from or face-to-face 

conversation with the authorized 

officer. Since the excess or unauthorized 

grazing penalties would be waived, any 

settlement or action would be of the 

nonmonetary nature and reduce the 

administrative burden on livestock 

operators by allowing for a waiver of 

fees of a situation that would typically 

require an administrative process to 

resolve. 

The cost savings are due to 

anticipated changes in fees paid by the 

industry to the agency as a result of fee 

waivers for eligible cases of excess or 

unauthorized use. The cost savings are 

considered transfer payments. Cost 

savings, though minimal, would result 

from waived fees and reduced time 

assessing and processing bills. The 

amount of time to process a fee waiver 

and process a bill for collection would 

be the same up to the point where the 

Forest Service either decides to waive 

the fees or issue a bill for collection. The 

agency and industry are expected to 

experience cost savings from the 

reduced time processing and collecting 

excess and unauthorized use fees. While 

the cost savings to industry from the fee 

waivers would result in less government 

revenue, this is not planned government 

revenue that benefits the public. The 

fees are a penalty. The goal is full 

compliance with existing laws, meaning 

no fees assessed for excess and 

unauthorized use. 

As such, the Chief of the Forest 

Service certifies that this rule would not 

have a significant economic impact on 

a substantial number of small entities as 

defined by the Regulatory Flexibility 

Act. 

Federalism 

The Agency has considered the final 

rule under the requirements of E.O. 

13132, Federalism. The Agency has 

determined that the final rule conforms 

with the federalism principles set out in 

this executive order; would not impose 

any compliance costs on the states; and 

would not have substantial direct effects 

on the States, on the relationship 

between the Federal government and 

the states, or on the distribution of 

power and responsibilities among the 

various levels of government. Therefore, 

the Agency has concluded that the final 

rule does not have federalism 

implications. 

Consultation and Coordination With 

Indian Tribal Governments 

The Forest Service considered this 

final rule in compliance with E.O. 

13175, Consultation and Coordination 

with Indian Tribal Governments. On 

October 30, 2020, the agency initiated a 

120-day consultation period. While 

consultation was ongoing, the comment 

period for this rule concluded on 

February 27, 2021. The Forest Service 

also considered input from Tribes 

received after this period. Two federally 

recognized Tribes accepted the 

invitation to consult and submitted 

written material on the rule. 

One Tribe expressed support for the 

proposed rule, and one Tribe expressed 

concern that the rule would encourage 

excessive damage and degradation to 

our fragile ecosystems. 

In response, the Forest Service 

maintains and reiterates its commitment 

to charge for all grazing use and enforce 

its grazing regulations. The final rule is 

of limited scope and amends the Forest 

Service grazing regulation to merely 

provide the authorized officer an option 

to waive the excess and unauthorized 

use fee only if all 3 criteria within the 

regulation are met. Of particular 

applicability is criteria #3 which 

requires that only those instances of 

excess or unauthorized use that did not 

significantly damage National Forest 

System lands could be considered for a 

waiver. All other instances would be 

charged for along with other 

administrative actions or penalties 

depending upon the circumstances. 

The Agency acknowledges that it 

shares a government-to-government 

relationship with Tribes that differs 

from its relationship with the general 

public. The final rule does not change 

the Forest Service’s Tribal consultation 

obligations. 

No Takings Implications 

The Agency has analyzed the final 

rule in accordance with the principles 

and criteria in E.O. 12630, 

Governmental Actions and Interference 

with Constitutionally Protected Property 

Rights. The Agency has determined that 

the final rule would not pose the risk of 

a taking of private property. 

Civil Justice Reform 

The Forest Service has analyzed the 

final rule in accordance with the 

principles and criteria in E.O. 12988, 

Civil Justice Reform. The Agency has 


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not identified any State or local laws or 

regulations that conflict with this 

regulation or that would impede full 

implementation of this rule. 

Nevertheless, if such conflicts were to 

be identified, the final rule will preempt 

the State or local laws or regulations 

that are found to be in conflict. 

However, in the case of such conflict, 

(1) no retroactive effect will be given to 

this final rule; and (2) USDA will not 

require the use of administrative 

proceedings before parties could file 

suit in court challenging its provisions. 

Unfunded Mandates Reform Act 

Pursuant to Title II of the Unfunded 

Mandates Reform Act of 1995 (2 U.S.C. 

1531–1538), signed into law on March 

22, 1995, the Agency has assessed the 

effects of the final rule on State, local, 

and Tribal governments and the private 

sector. The final rule would not compel 

the expenditure of $100 million or more 

by any State, local, or Tribal government 

or anyone in the private sector. 

Therefore, a statement under section 

202 of the Act is not required. 

Controlling Paperwork Burdens on the 

Public 

The final rule does not contain any 

recordkeeping or reporting requirements 

or other information collection 

requirements as defined in 5 CFR part 

1320 that are not already required by 

law or not already approved for use. 

Accordingly, the review provisions of 

the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.) and its 

implementing regulations at 5 CFR part 

1320 do not apply. 

List of Subjects in 36 CFR Part 222 

Grazing and Livestock Use on the 

National Forest System, Mediation of 

Term Grazing Permit Disputes, Grazing 

Fees, Management of Wild FreeRoaming Horses and Burros. 

Therefore, for the reasons set forth in 

the preamble, part 222, subparts A and 

C, of title 36 of the Code of Federal 

Regulations is amended as follows: 

PART 222—RANGE MANAGEMENT 

Subpart A—Grazing and Livestock Use 

on the National Forest System 

■ 1. Revise the authority citation for 

subpart A to read as follows: 

Authority: 92 Stat. 1803, as amended (43 

U.S.C. 1901), 85 Stat. 649, as amended (16 

U.S.C. 1331–1340); sec. 1, 30 Stat. 35, as 

amended (16 U.S.C. 551); sec. 32, 50 Stat. 

522, as amended (7 U.S.C. 1011). 

■ 2. In § 222.1, revise paragraph (b) to 

read as follows: 

§ 222.1 Authority and definitions. 

* * * * * 

(b) Definitions. 

Allotment means a designated area of 

land available for livestock grazing. 

Allotment management plan means a 

document that specifies the program of 

action designated to reach a given set of 

objectives. It is prepared in consultation 

with the permittee(s) involved and: 

(i) Prescribes the manner in and 

extent to which livestock operations 

will be conducted in order to meet the 

multiple-use, sustained yield, economic, 

and other needs, and objectives as 

determined for the lands, involved; and 

(ii) Describes the type, location, 

ownership, and general specifications 

for the range improvements in place or 

to be installed and maintained on the 

lands to meet the livestock grazing and 

other objectives of land management; 

and 

(iii) Contains such other provisions 

relating to livestock grazing and other 

objectives as may be prescribed by the 

Chief, Forest Service, consistent with 

applicable law. 

Base property means land and 

improvements owned and used by the 

permittee for a farm or ranch operation 

and specifically designated by him to 

qualify for a term grazing permit. 

Cancel means action taken to 

permanently invalidate a term grazing 

permit in whole or in part. 

Grazing permit means any document 

authorizing livestock to use National 

Forest System or other lands under 

Forest Service control for the purpose of 

livestock production including: 

(i) Temporary grazing permits for 

grazing livestock temporarily and 

without priority for reissuance. 

(ii) Term permits for up to 10 years 

with priority for renewal at the end of 

the term. 

Land subject to commercial livestock 

grazing means National Forest System 

lands within established allotments. 

Lands within the National Forest in 

the 16 contiguous western States means 

lands designated as National Forest 

within the boundaries of Arizona, 

California, Colorado, Idaho, Kansas, 

Montana, Nebraska, Nevada, New 

Mexico, North Dakota, Oklahoma, 

Oregon, South Dakota, Utah, 

Washington, and Wyoming (National 

Grasslands are excluded). 

Livestock means animals of any kind 

kept or raised for use or pleasure. 

Livestock use permit means a permit 

issued for not to exceed one year where 

the primary use is for other than grazing 

livestock. 

Modify means to revise the terms and 

conditions of an issued permit. 

National Forest System lands means 

the National Forests, National 

Grasslands, Land Utilization Projects, 

and other Federal lands for which the 

Forest Service has administrative 

jurisdiction. 

Non-permittee means a person who 

owns or controls livestock and does not 

have a grazing permit to graze livestock 

on National Forest System lands. 

On-and-off grazing permits means 

permits with specific provisions on 

range, only part of which is National 

Forest System lands or other lands 

under Forest Service control. 

On-the-ground expenditure means 

payment of direct project costs of 

implementing an improvement or 

development, such as survey and 

design, equipment, labor, and material 

(or contract) costs, and on-the-ground 

supervision. 

Other lands under Forest Service 

control means non-Federal public and 

private lands over which the Forest 

Service has been given control through 

lease, agreement, waiver, or otherwise. 

Permittee means any person who has 

been issued a grazing permit. 

Permitted livestock means livestock 

authorized by a written permit. 

Person means any individual, 

partnership, corporation, association, 

organization, or other private entity, but 

does not include Government Agencies. 

Private land grazing permits means 

permits issued to persons who control 

grazing lands adjacent to National 

Forest System lands and who waive 

exclusive grazing use of these lands to 

the United States for the full period the 

permit is to be issued. 

Range betterment means 

rehabilitation, protection, and 

improvement of National Forest System 

lands to arrest range deterioration and 

improve forage conditions, fish and 

wildlife habitat, watershed protection, 

and livestock production. 

Range betterment fund means the 

fund established by title IV, section 

401(b)(1), of the Federal Land Policy 

and Management Act of 1976. This 

consists of 50 percent of all monies 

received by the United States as fees for 

grazing livestock on the National Forests 

in the 16 contiguous western States. 

Range improvement means any 

activity or program designed to improve 

production of forage and includes 

facilities or treatments constructed or 

installed for the purpose of improving 

the range resource or the management of 

livestock and includes the following 

types: 

(i) Non-structural which are practices 

and treatments undertaken to improve 

range not involving construction of 

improvements. 


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35104 Federal Register / Vol. 87, No. 111 / Thursday, June 9, 2022 / Rules and Regulations 

(ii) Structural which are 

improvements requiring construction or 

installation undertaken to improve the 

range or to facilitate management or to 

control distribution and movement of 

livestock. 

(A) Permanent means range 

improvements installed or constructed 

and become a part of the land such as: 

dams, ponds, pipelines, wells, fences, 

trails, seeding, etc. 

(B) Temporary means short-lived or 

portable improvements that can be 

removed such as: troughs, pumps and 

electric fences, including improvements 

at authorized places of habitation such 

as line camps. 

Suspend means temporary 

withholding of a term grazing permit 

privilege, in whole or in part. 

Term period means the period for 

which term permits are issued, the 

maximum of which is 10 years. 

Transportation livestock means 

livestock used as pack and saddle stock 

for travel on the National Forest System. 

Subpart C—Grazing Fees 

■ 3. The authority citation for subpart C 

continues to read as follows: 

Authority: 16 U.S.C. 551; 31 U.S.C. 9701; 

43 U.S.C. 1751, 1752, 1901; E.O. 12548 (51 

FR 5985). 

■ 4. In § 222.50, revise paragraph (h) to 

read as follows: 

§ 222.50 General procedures. 

* * * * * 

(h) The excess and unauthorized 

grazing use rate will be determined by 

establishing a base value without giving 

consideration for those contributions 

normally made by the permittee under 

terms of the grazing permit. This rate is 

charged for unauthorized forage or 

forage in excess of authorized use and 

is separate from any penalties that may 

be assessed for a violation of a 

prohibition issued under 36 CFR part 

261 or from an administrative permit 

action. This rate will apply to, but not 

be limited to, the following 

circumstances: excess number of 

livestock grazed; livestock grazed 

outside the permitted grazing season; 

livestock grazed in areas not authorized 

under a grazing permit and a bill for 

collection; or livestock grazed without a 

permit. Per paragraph (a) of this section, 

a grazing fee shall be charged for each 

head month of livestock grazing or use. 

This includes any excess or 

unauthorized grazing use. The 

authorized officer may then waive 

monetary fees for excess or 

unauthorized grazing use only when all 

three of the following conditions are 

met: 

(1) The excess or unauthorized use 

was a result of unforeseen or 

uncontrollable circumstances on behalf 

of the permittee or non-permittee, and 

the livestock associated with such use 

were removed by the permittee or nonpermittee within the timeframe required 

by the authorized officer; 

(2) The forage consumed by the excess 

or unauthorized use is not significant; 

and 

(3) National Forest System lands have 

not been damaged significantly by the 

excess or unauthorized use. 

* * * * * 

Dated: June 6, 2022. 

Randy Moore, 

Chief, USDA Forest Service. 

[FR Doc. 2022–12453 Filed 6–8–22; 8:45 am] 

BILLING CODE 3411–15–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[EPA–R05–OAR–2021–0949; FRL–9532–02– 

R5] 

Air Plan Approval; Ohio; 

Redesignation of the Ohio Portion of 

the Cincinnati, Ohio-Kentucky Area to 

Attainment of the 2015 Ozone Standard 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) finds that the Cincinnati, 

Ohio-Kentucky area (Area) is attaining 

the 2015 ozone National Ambient Air 

Quality Standard (NAAQS or standard) 

and is acting in accordance with a 

request from the Ohio Environmental 

Protection Agency (OEPA) to 

redesignate the Ohio portion of the Area 

to attainment for the 2015 ozone 

NAAQS because the request meets the 

statutory requirements for redesignation 

under the Clean Air Act (CAA). The 

Area includes Butler, Clermont, 

Hamilton, and Warren Counties in Ohio 

and parts of Boone, Campbell, and 

Kenton Counties in Kentucky. OEPA 

submitted the request for redesignation 

for the Ohio portion of the area (Butler, 

Clermont, Hamilton, and Warren 

Counties) on December 21, 2021. EPA is 

also approving, as a revision to the Ohio 

State Implementation Plan (SIP), the 

state’s plan for maintaining the 2015 

ozone standard through 2035 in the 

Area. Finally, EPA is approving the 

state’s 2026 and 2035 volatile organic 

compound (VOC) and oxides of nitrogen 

(NOX) motor vehicle emission budgets 

for the Ohio portion of the Area for 

transportation conformity purposes. 

EPA received comments on its February 

11, 2022, proposed rule. After 

considering comments received, EPA is 

finalizing this action as proposed. 

DATES: This final rule is effective on 

June 9, 2022. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R05–OAR–2021–0949. All 

documents in the docket are listed on 

the www.regulations.gov website. 

Although listed in the index, some 

information is not publicly available, 

i.e., Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either through 

www.regulations.gov or at the 

Environmental Protection Agency, 

Region 5, Air and Radiation Division, 77 

West Jackson Boulevard, Chicago, 

Illinois 60604. This facility is open from 

8:30 a.m. to 4:30 p.m., Monday through 

Friday, excluding Federal holidays and 

facility closures due to COVID–19. We 

recommend that you telephone Olivia 

Davidson, Environmental Scientist, at 

(312) 886–0266 before visiting the 

Region 5 office. 

FOR FURTHER INFORMATION CONTACT: 

Olivia Davidson, Environmental 

Scientist, Attainment Planning and 

Maintenance Section, Air Programs 

Branch (AR–18J), Environmental 

Protection Agency, Region 5, 77 West 

Jackson Boulevard, Chicago, Illinois 

60604, (312) 886–0266, 

davidson.olivia@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. 

I. Background Information 

This rule takes final action on the 

December 21, 2021, submission from 

OEPA requesting redesignation of the 

Ohio portion of the Cincinnati area to 

attainment for the 2015 ozone standard. 

The background for this action is 

discussed in detail in EPA’s Notice of 

Proposed Rulemaking (Proposal), dated 

February 11, 2022 (87 FR 7978). In the 

Proposal, we noted that, under EPA 

regulations at 40 CFR part 50, the 2015 

ozone NAAQS is attained in an area 

when the 3-year average of the annual 

fourth highest daily maximum 8-hour 

average ozone concentration is equal to 

or less than 0.070 parts per million, 

when truncated after the third decimal 

place, at all of the ozone monitoring 


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