Table of Contents I. Background A. The Paycheck Protection Program and Small Business Administration Lending Restrictions B. Insider Lending Restrictions in the Federal Reserve Act and Regulation O II. The Interim Final Rule III. Administrative Law Matters A. Administrative Procedure Act B. Congressional Review Act C. Paperwork Reducation Act D. Regulatory Flexibility Act E. Riegle Community Development and Regulatory Improvement Act of 1994 F. Use of Plain Language I. Background A. The Paycheck Protection Program and Small Business Administration Lending Restrictions

The spread of the Coronavirus Disease 2019 (COVID-19) has disrupted economic activity in the United States and many other countries. In addition, financial markets have experienced significant volatility. The magnitude and persistence of the overall effects on the economy remain highly uncertain. In light of these developments, Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act which, among other things, created the Paycheck Protection Program (PPP) to facilitate lending to small businesses affected by COVID-19.

Under the PPP, qualified lenders, including many depository institutions subject to section 22(h) of the Federal Reserve Act and the Board's Regulation O, 1 may make loans to small businesses for payroll-related and other purposes specified in the CARES Act. 2 Loans that meet the requirements for the PPP (PPP loans) set forth by the Small Business Administration (SBA) are guaranteed as to the unpaid principal and accrued interest of the loan. The guarantee for PPP loans provided by the SBA is backed by the full faith and credit of the United States. Only loans made between February 15, 2020, and June 30, 2020, are eligible for the PPP. 3 The SBA has issued several interim final rules to implement the PPP. 4

Under the PPP, eligible borrowers generally include businesses with fewer than 500 employees or that are otherwise considered by the SBA to be small, including individuals operating sole proprietorships, entities that are independent contractors of other businesses, certain franchisees, nonprofit corporations, veterans organizations, and Tribal businesses. 5 The loan amount under the PPP is limited to the lesser of $10 million and 250 percent of a borrower's average monthly payroll costs. 6

Under the PPP, a borrower may apply to a PPP qualified lender for forgiveness of the portion of a PPP loan that is used in the first eight weeks of the loan for payroll costs and certain mortgage, rent, and utility payments. The SBA will reimburse the PPP lender for the forgiven amount of any PPP loan. 7 PPP loans will have a maturity of two years and an interest rate of 100 basis points. 8 PPP lenders may not alter these terms.

PPP loans are subject to the same rules, conditions, and requirements as all other loans made under section 7(a) of the Small Business Act, unless otherwise specified by the SBA in its interim final rules administering the PPP. 9 Normally, SBA regulations would prohibit a PPP lender from making a PPP loan to “[b]usinesses in which the [PPP lender] or any of its Associates owns an equity interest” (SBA lending restrictions). 10 SBA regulations define an “Associate” of a PPP lender to be “[a]n officer, director, key employee, or holder of 20 percent or more of the value of the [PPP] [l]ender's . . . stock or debt instruments” and any entity in which one of these individuals or certain relatives “own or controls at least 20 percent.”  11

On April 14, 2020, the SBA issued an interim final rule stating, among other things, that SBA lending restrictions “shall not apply to prohibit an otherwise eligible business owned (in whole or part) by an outside director or holder of less than 30 percent equity interest in a PPP [l]ender from obtaining a PPP loan from the PPP [l]ender on whose board the director serves or in which the equity owner holders an interest, provided that the eligible business owned by the director or equity holder follows the same process as similarly situated customer or account holder of the [l]ender.”  12 The interim final rule also stated that SBA lending restrictions would continue to apply to officers and key employees of a PPP lender, and that “[f]avoritism by [a PPP] [l]ender in processing time or prioritization of [a] director's or equity holder's PPP application is prohibited.”  13

Among other things, section 22(h) and Regulation O impose requirements on a bank regarding extensions of credit made to insiders  14 of the bank or its affiliates. Loans to insiders are subject to quantitative limits, prior approval requirements by the bank's board, and qualitative requirements concerning loan terms. 15 Regulation O also requires banks to keep certain records and make certain disclosures concerning extensions of credit subject to the rule. 16 Under section 22(h), an “extension of credit” includes, among other things, “making or renewing any loan, granting a line of credit, or entering into any similar transaction as a result of which the person becomes obligated (directly or indirectly, or by any means whatsoever) to pay money or its equivalent to the bank.”  17 Accordingly, PPP loans from a bank to an insider, including the insider's related interests, 18 would be subject to the requirements of section 22(h) and Regulation O.

The Housing and Community Development Act of 1992 (HCDA)  19 amended section 22(h) to authorize the Board to adopt, by regulation, exceptions to the definition of “extension of credit” in section 22(h) for transactions that “pose minimal risk.” Therefore, the Board may except PPP loans from the restrictions imposed by section 22(h) and the corresponding provisions of Regulation O if it determines that PPP loans pose minimal risk. 20

The legislative history of the HCDA states that a transaction poses minimal risk when the risk is “minuscule compared to that of other loans.”  21 PPP loans are guaranteed by the SBA, and the guarantee is backed by the full faith and credit of the United States. Unlike other SBA loans authorized under section 7(a) of the Small Business Act, 22 the SBA's guarantee for PPP loans extends to 100 percent of the PPP loan amount. PPP loans also are less susceptible to insider abuse than other extensions of credit from a bank to an insider, other loans guaranteed by the SBA, or other extensions of credit that the Board previously has determined pose minimal risk. 23 Unlike these other extensions of credit, PPP loans have standard terms that do not allow for variation between borrowers, so banks are unable to modify the terms of PPP loans to be more favorable for insiders than for borrowers that are not insiders. Furthermore, like the PPP, which only applies to loans made between February 15 and June 30, 2020, the exception in this interim final rule only applies to loans made during the same time period. Excepting PPP loans from the definition of “extension of credit” in section 22(h) and the corresponding provisions of Regulation O is appropriate in light of these circumstances.

Accordingly, the Board has determined that PPP loans pose minimal risk. These PPP loans will not be subject to section 22(h) or the corresponding provisions of Regulation O if they are not prohibited by the SBA lending restrictions. The exception will help banks, particularly in smaller communities, to give effect to the PPP's purpose of helping small businesses to continue to operate under current economic conditions. The Board is providing the temporary exclusion in the interim final rule to allow banking organizations to make PPP loans to a broad range of small businesses within their communities, consistent with applicable law and safe and sound banking practices. As noted, the SBA explicitly has prohibited a banking organization from favoring in processing time or prioritization a PPP application of one of its directors or equity holders and the Board will administer this interim final rule accordingly.

SBA lending restrictions continue to apply to certain PPP loans that also would be subject to section 22(h) and the corresponding provisions of Regulation O. Excepting PPP loans that would be prohibited by the SBA lending restrictions from the requirements of section 22(h) and the corresponding provisions in Regulation O would not achieve any meaningful regulatory purpose. Excepting these loans from one regime and not the other also may create confusion because some lenders may mistakenly interpret an exception under one regime to extend to both regimes.

This determination does not impact the application of other restrictions that may apply to PPP loans, including section 22(g) of the Federal Reserve Act or § 215.5 of Regulation O. 24 This determination also does not affect the SBA lending restrictions.

Question 1: What are the advantages and disadvantages of excepting PPP loans from the definition of “extension of credit” in section 22(h) and the corresponding provisions of the Board's Regulation O?

Question 2: What are the most appropriate terms and conditions for this exception and why?

The Board is issuing the interim final rule without prior notice and the opportunity for public comment and the delayed effective date ordinarily prescribed by the Administrative Procedure Act (APA)). 25 Pursuant to section 553(b)(B) of the APA, general notice and the opportunity for public comment are not required with respect to a rulemaking when an “agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.”  26

The Board believes that the public interest is best served by implementing the interim final rule immediately. As discussed above, the spread of COVID-19 has disrupted economic activity in the United States and other countries. In addition, U.S. financial markets have featured substantial levels of volatility. The magnitude and persistence of COVID-19 on the economy remain uncertain. In light of the substantial disruptions in the economy, and the likelihood that this interim final rule would help ameliorate those disruptions by promoting lending to small businesses, the Board finds that there is good cause consistent with the public interest to issue the rule without advance notice and comment. 27

The APA also requires a 30-day delayed effective date, except for (1) substantive rules which grant or recognize an exemption or relieve a restriction; (2) interpretative rules and statements of policy; or (3) as otherwise provided by the agency for good cause. 28 Because the rules relieve a restriction by providing an exception to the definition of “extension of credit” in section 22(h) and Regulation O, the interim final rule is exempt from the APA's delayed effective date requirement. 29

While the Board believes that there is good cause to issue the rule without advance notice and comment and with an immediate effective date, the Board is interested in the views of the public and requests comment on all aspects of the interim final rule.

For purposes of the Congressional Review Act, the Office of Management and Budget (OMB) makes a determination as to whether a final rule constitutes a “major” rule. 30 If a rule is deemed a “major rule” by the OMB, the Congressional Review Act generally provides that the rule may not take effect until at least 60 days following its publication. 31

The Congressional Review Act defines a “major rule” as any rule that the Administrator of the Office of Information and Regulatory Affairs of the OMB finds has resulted in or is likely to result in (A) an annual effect on the economy of $100,000,000 or more; (B) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies or geographic regions, or (C) 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. 32

For the same reasons set forth above, the Board is adopting the interim final rule without the delayed effective date generally prescribed under the Congressional Review Act. The delayed effective date required by the Congressional Review Act does not apply to any rule for which an agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rule issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. 33 In light of current market uncertainty, the Board believes that delaying the effective date of the rule would be contrary to the public interest.

As required by the Congressional Review Act, the Board will submit the final rule and other appropriate reports to Congress and the Government Accountability Office for review.

The Paperwork Reduction Act (44 U.S.C. 3501-3521) (PRA) states that no agency may conduct or sponsor, nor is the respondent required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. On June 15, 1984, OMB delegated to the Board authority under the PRA to approve and assign OMB control numbers to collections of information conducted or sponsored by the Board, as well as the authority to temporarily approve a new collection of information without providing opportunity for public comment if the Board determines that a change in an existing collection must be instituted quickly and that public participation in the approval process would defeat the purpose of the collection or substantially interfere with the Board's ability to perform its statutory obligation.

This interim final rule does not contain any collections of information subject to the PRA. However, the interim final rule does indirectly affect certain recordkeeping and disclosure requirements in Regulation O that have not previously been cleared by the Board under the PRA. In order to accurately account for these requirements pursuant to the PRA, the Board has temporarily approved a new collection of information titled Recordkeeping and Disclosure Requirements Associated with Regulation O (FR O; OMB No. 7100-NEW).

The Board's delegated authority requires that the Board, after temporarily approving a collection, solicit public comment to extend the information collections for a period not to exceed three years. Therefore, the Board is inviting comment to extend the FR O information collection for three years.

The Board invites public comment on the following information collection, which is being reviewed under authority delegated by the OMB under the PRA. Comments must be submitted on or before June 22, 2020. Comments are invited on the following:

a. Whether the collection of information is necessary for the proper performance of the Board's functions, including whether the information has practical utility;

b. The accuracy of the Board's estimate of the burden of the information collection, including the validity of the methodology and assumptions used;

c. Ways to enhance the quality, utility, and clarity of the information to be collected;

d. Ways to minimize the burden of information collection on respondents, including through the use of automated collection techniques or other forms of information technology; and

e. Estimates of capital or startup costs and costs of operation, maintenance, and purchase of services to provide information.

At the end of the comment period, the comments and recommendations received will be analyzed to determine the extent to which the Board should modify the collection.

Collection title: Recordkeeping and Disclosure Requirements Associated with Regulation O.

Agency form number: FR O.

OMB control number: 7100-NEW.

Effective Date: April 22, 2020.

Frequency: Annual, event generated.

Respondents: Member banks of the Federal Reserve System, savings associations, and any subsidiary of such institutions.

Estimated number of respondents: Recordkeeping (§§ 215.8 and 215.9): 1,570; disclosure (§ 215.9): 1,570.

Estimated average hours per response: Recordkeeping (§§ 215.8 and 215.9): 4; disclosure (§ 215.9): 2.

Estimated annual burden hours: Recordkeeping (§§ 215.8 and 215.9): 6,280; disclosure (§ 215.9): 3,140; total: 9,420.

General description of information collection:

Sections 22(g) and (h) of the Federal Reserve Act  34 retstrict certain transactions between banks and their insiders or insiders of their affiliates. Insiders include executive officers, directors, principal shareholders, and companies controlled by such persons. Congress enacted sections 22(g) and (h) to prevent bank insiders from abusing their positions to gain favorable treatment from their associated banks. Congress authorized the Board to prescribe rules and regulations as necessary to effectuate the purposes and to prevent the evasions of the sections. Accordingly, the Board has promulgated the Board's Regulation O to effectuate Congress' purpose of preventing insider abuse in banks.

Regulation O contains certain recordkeeping and disclosure requirements. Pursuant to § 215.8 of Regulation O, respondents must maintain records necessary for compliance with the requirements of Regulation O. 35 Any recordkeeping method adopted by a respondent shall identify, through an annual survey, all insiders of the respondent and maintain records of all extensions of credit to insiders of the respondent, including the amount and terms of each such extension of credit. Additionally, any recordkeeping method adopted by a respondent shall maintain records of extensions of credit to insiders of the respondent's affiliates by using either the survey method or borrower inquiry method, as set forth in Regulation O, or a different recordkeeping method if the appropriate Federal banking agency determines that the respondent's method is at least as effective as the listed methods.

Pursuant to § 215.9 of Regulation O, upon receipt of a written request from the public, a respondent must make available the names of each of its executive officers and each of its principal shareholders to whom, or to whose related interests, the member bank had outstanding as of the end of the latest previous quarter of the year, an extension of credit that, when aggregated with all other outstanding extensions of credit at such time from the member bank to such person and to all related interests of such person, equaled or exceeded 5 percent of the member bank's capital and unimpaired surplus or $500,000, whichever amount is less. 36 Respondents are not required to disclose the specific amounts of individual extensions of credit. Additionally, each respondent must maintain records of all requests for the information described above and the disposition of such requests. These records may be disposed of after two years from the date of the request.

The recordkeeping and disclosure requirements in §§ 215.8 and 215.9 of Regulation O are required by section 306(o) of Public Law 102-242, 105 Stat. 2236 (1991) and authorized under 12 U.S.C. 1817(k).

Current actions: The Board has temporarily approved the collections of information contained within Regulation O. The Board has determined that this collection of information must be instituted quickly and that public participation in the approval process would defeat the purpose of the collection of information, as these collections of information are contained in an existing regulation, and the inability of the Board to enforce these collection of information requirements due to noncompliance with the PRA would interfere with the Board's ability to perform its statutory duties.

The Board also invites comment to extend the FR O information collection for three years.

The Regulatory Flexibility Act (RFA)  37 requires an agency to consider whether the rules it proposes will have a significant economic impact on a substantial number of small entities. 38 The RFA applies only to rules for which an agency publishes a general notice of proposed rulemaking pursuant to 5 U.S.C. 553(b). As discussed previously, consistent with section 553(b)(B) of the APA, the Board has determined for good cause that general notice and opportunity for public comment are unnecessary, and therefore the Board is not issuing a notice of proposed rulemaking. Accordingly, the Board has concluded that the RFA's requirements relating to initial and final regulatory flexibility analysis do not apply.

Nevertheless, the Board seeks comment on whether, and the extent to which, the interim final rule would affect a significant number of small entities.

Pursuant to section 302(a) of the Riegle Community Development and Regulatory Improvement Act (RCDRIA), 39 in determining the effective date and administrative compliance requirements for new regulations that impose additional reporting, disclosure, or other requirements on insured depository institutions (IDIs), the Federal banking agencies must consider, consistent with the principle of safety and soundness and the public interest, any administrative burdens that such regulations would place on depository institutions, including small depository institutions, and customers of depository institutions, as well as the benefits of such regulations. In addition, section 302(b) of RCDRIA requires new regulations and amendments to regulations that impose additional reporting, disclosures, or other new requirements on IDIs generally to take effect on the first day of a calendar quarter that begins on or after the date on which the regulations are published in final form, with certain exceptions, including for good cause. 40 For the reasons described above, the Board finds good cause exists under section 302 of RCDRIA to publish this interim final rule with an immediate effective date.

As such, the final rule will be effective immediately on publication. Nevertheless, the Board seeks comment on RCDRIA.

Section 722 of the Gramm-Leach-Bliley Act  41 requires the Federal banking agencies to use plain language in all proposed and final rules published after January 1, 2000. The Board has sought to present the interim final rule in a simple and straightforward manner. The Board invites comments on whether there are additional steps it could take to make the rule easier to understand. For example:

• Have we organized the material to suit your needs? If not, how could this material be better organized?

• Are the requirements in the regulation clearly stated? If not, how could the regulation be more clearly stated?

• Does the regulation contain language or jargon that is not clear? If so, which language requires clarification?

• Would a different format (grouping and order of sections, use of headings, paragraphing) make the regulation easier to understand? If so, what changes to the format would make the regulation easier to understand?

• What else could we do to make the regulation easier to understand?

For the reasons stated in the preamble, the Board of Governors of the Federal Reserve System amends 12 CFR chapter II as follows:

I. Public Participation

Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this temporary final rule. See ADDRESSES above for information on how to submit comments. CBP also invites comments that relate to the economic, environmental, or federalism effects that might result from this regulatory change. Comments that will provide the most assistance to CBP will reference a specific portion of the rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change.

On March 13, 2020, the President issued Proclamation 9994, Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19), under the National Emergencies Act (50 U.S.C. 1601 et seq. ) and found and proclaimed that the COVID-19 outbreak in the United States constitutes a national emergency, beginning March 1, 2020. On April 18, 2020, the President issued the Executive Order entitled “National Emergency Authority to Temporarily Extend Deadlines for Certain Estimated Payments” (hereinafter “Postponement of Deposit E.O.”) authorizing the Secretary of the Treasury to respond to the national emergency declared by Presidential Proclamation 9994, pursuant to the authority in section 318(a) of the Tariff Act of 1930 (19 U.S.C. 1318(a)). Upon consultation by the Secretary of the Treasury with the designee of the Secretary of Homeland Security (U.S. Customs and Border Protection (CBP)), and for the reasons set forth below, CBP is amending its regulations to respond to the ongoing national emergency.

Due to the COVID-19 pandemic, local, state and national restrictions have forced the closure of offices of the importing community and those businesses have limited their operations and procedures. Many importers of record will be receiving diminished or no revenue during this time while still incurring costs, including the duties, taxes, and fees associated with imported merchandise for their clients and supply chains. Aggravating matters, many major retail chains and other businesses are closing for business—either voluntarily in response to the President's call or following state or local government requirements.

As a result, many importers of record are undergoing significant financial hardship with operations fully or partially suspended during March or April 2020 due to orders from competent governmental authorities imposing limits on commerce, travel, or group meetings because of COVID-19. Many importers of record are also having difficulty authorizing payments for duties, taxes, and fees on imported merchandise. Employees are having difficulty getting to work or are having technical issues with working remotely, making it difficult to contact the individuals responsible for the release of funds, which is leading to delays in payments of duties, taxes, and fees.

Under 19 U.S.C. 1318(a), whenever the President shall by proclamation declare an emergency to exist by reason of a state of war, or otherwise, he may authorize the Secretary of the Treasury to extend during the continuance of such emergency the time prescribed for the performance of any act. To address the specific circumstances created by the COVID-19 pandemic, and without creating, for the avoidance of doubt, a binding precedent for future exercises of the authority granted by 19 U.S.C. 1318(a), the Secretary of the Treasury, in consultation with the designee of the Secretary of Homeland Security (U.S. Customs and Border Protection (CBP)), under 19 U.S.C. 1318(a) and as authorized by the Postponement of Deposit E.O., is amending the CBP regulations by adding a new section 24.1a to title 19 of the Code of Federal Regulations (19 CFR 24.1a) to temporarily postpone the deadline for importers of record to deposit certain estimated duties, taxes, and fees that they would ordinarily be obligated to pay as of the date of entry, or withdrawal from warehouse, for consumption, for merchandise entered in March or April 2020, for a period of 90 days from the date that the deposit would otherwise have been due but for this emergency action. In addition, no interest that would otherwise accrue upon such estimated duties, taxes, and fees will accrue during the 90-day postponement period.

This emergency action is being taken in response to the extraordinary challenges facing U.S. individuals and businesses during the COVID-19 national emergency (which significantly affects the trade community), and is consistent with the Secretary of the Treasury's decision to postpone due dates for Federal income tax payments under section 7508A(a) of the Internal Revenue Code (available at https://www.irs.gov/coronavirus ).

This temporary postponement is limited. This temporary postponement does not permit return of any deposits of estimated duties, taxes, and/or fees that have been paid. This temporary postponement also does not apply to any entry, or withdrawal from warehouse, for consumption, or any deposit of estimated duties, taxes, or fees for the entry, or withdrawal from warehouse, for consumption, where the entry summary includes any merchandise subject to one or more of the following: Antidumping duties (assessed pursuant to 19 U.S.C. 1673 et seq. ), countervailing duties (assessed pursuant to 19 U.S.C. 1671 et seq. ), duties assessed pursuant to Section 232 of the Trade Expansion Act of 1962 (19 U.S.C. 1862), duties assessed pursuant to Section 201 of the Trade Act of 1974 (19 U.S.C. 2251 et seq. ), and duties assessed pursuant to Section 301 of the Trade Act of 1974 (19 U.S.C. 2411 et seq. ). Accordingly, CBP anticipates that importers will file separate entries when a shipment contains both merchandise that is eligible for temporary postponement and merchandise that is ineligible (because of the above-specified trade remedies).

To qualify for this temporary postponement, an importer must demonstrate a significant financial hardship. An eligible importer's operation must be fully or partially suspended during March or April 2020 due to orders from a competent governmental authority limiting commerce, travel, or group meetings because of COVID-19, and as a result of such suspension, the gross receipts of such importer for March 13-31, 2020 or April 2020 are less than 60 percent of the gross receipts for the comparable period in 2019. An eligible importer need not file additional documentation with CBP to be eligible for this relief but must maintain documentation as part of its books and records establishing that it meets the requirements for relief.

This temporary postponement does not apply to deadlines for the payment of other debts to CBP, including but not limited to deadlines for the payment of bills for duties, taxes, fees, and interest determined to be due upon liquidation or reliquidation, deadlines for the payment of fees authorized pursuant to 19 U.S.C. 58c (except for merchandise processing fees and dutiable mail fees), or deadlines for the payment of any penalty or liquidated damages due to CBP.

CBP notes that for some types of entries, the time of entry is contingent (in part) upon the deposit of estimated duties, taxes, and fees. See, e.g., 19 CFR 141.68(b). To ensure clarity in the application of the temporary postponement vis-à-vis the time of entry, this emergency action includes a waiver of the regulatory requirement to deposit estimated duties, taxes, and fees for the purpose of establishing the time of entry in those instances where it would otherwise be required under 19 CFR 141.68. The time of entry can thus be established in the absence of the deposit of estimated duties, taxes, and fees postponed in accordance with this emergency action.

The Administrative Procedure Act (APA) requirements in 5 U.S.C. 553 govern agency rulemaking procedures. Section 553(b) of the APA generally requires notice and public comment before issuance of a final rule. In addition, section 553(d) of the APA requires that a final rule have a 30-day delayed effective date. The APA, however, provides exceptions from the prior notice and public comment requirement and the delayed effective date requirements, when an agency for good cause finds that such procedures are impracticable, unnecessary, or contrary to the public interest. 5 U.S.C. 553(b)(B), (d)(3). CBP finds that prior notice and comment are impracticable and contrary to the public interest and that good cause exists to issue this rule immediately.

As noted above, the ongoing unprecedented situation related to COVID-19 is having a nationwide impact, as demonstrated by the declaration of a national emergency by the President. The postponement of the payment period for the deposit of certain estimated duties, taxes, and fees as of the date of entry, or withdrawal from warehouse, for consumption, of merchandise imported into the United States supports American workers and businesses who are currently affected by COVID-19. To protect our public interests during the ongoing national emergency, the Secretary of the Treasury, in consultation with CBP, concludes, pursuant to 5 U.S.C. 553(b)(B), that there is good cause to dispense with prior public notice and the opportunity to comment on this rule before finalizing this rule. For the same reasons, the Secretary of the Treasury, in consultation with CBP, has determined, consistent with section 553(d)(3) of the APA, that there is good cause to make this temporary final rule effective immediately.

Executive Orders 13563 and 12866 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 13771 directs agencies to reduce regulation and control regulatory costs and provides that “for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.”

This temporary final rule is a “significant regulatory action,” under section 3(f) of Executive Order 12866, but not an “economically significant regulatory action.” Accordingly, the Office of Management and Budget (OMB) has reviewed this regulation. This regulation has been prepared under the emergency flexibilities provided under section 6(a)(3)(D) of Executive Order 12866. The costs of this rule are considered de minimis for purposes of Executive Order 13771. See OMB's Memorandum titled “Guidance Implementing Executive Order 13771, Titled ‘Reducing Regulation and Controlling Regulatory Costs’ ” (April 5, 2017).

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), as amended by the Small Business Regulatory Enforcement and Fairness Act of 1996, requires an agency to prepare and make available to the public a regulatory flexibility analysis that describes the effect of a proposed rule on small entities ( i.e., small businesses, small organizations, and small governmental jurisdictions) when the agency is required to publish a general notice of proposed rulemaking for a rule. Since a general notice of proposed rulemaking is not necessary for this rule, CBP is not required to prepare a regulatory flexibility analysis for this rule.

This temporary final rule does not impose an additional information collection burden under the Paperwork Reduction Act of 1995 (44 U.S.C. 3507) and does not involve any material change to the existing approved information collection by OMB under assigned OMB control number 1651-0078. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number assigned by OMB.

This document is being issued by CBP in accordance with § 0.1(a)(1) of the CBP Regulations (19 CFR 0.1(a)(1)) pertaining to the authority of the Secretary of the Treasury (or his/her delegate) to approve regulations related to certain customs revenue functions.

For the reasons stated above, part 24 of title 19 of the Code of Federal Regulations (19 CFR part 24) is amended as set forth below:

On March 24, 2020, DHS published notice of the Secretary's decision to temporarily limit the travel of individuals from Canada into the United States at land ports of entry along the United States-Canada border to “essential travel,” as further defined in that document. 1 The document described the developing circumstances regarding the COVID-19 pandemic and stated that, given the outbreak and continued transmission and spread of COVID-19 within the United States and globally, the Secretary had determined that the risk of continued transmission and spread of COVID-19 between the United States and Canada posed a “specific threat to human life or national interests.” The Secretary's action is currently scheduled to expire at 11:59 p.m. EDT on April 20, 2020.

The Secretary has continued to monitor and respond to the COVID-19 pandemic. As of April 19, there are over 2.2 million confirmed cases globally, with over 152,000 confirmed deaths. 2 There are over 720,000 confirmed cases within the United States, 3 over 32,000 in Canada, 4 and over 6,800 in Mexico. 5

Given the outbreak and continued transmission and spread of COVID-19 within the United States and globally, I have determined that the risk of continued transmission and spread of COVID-19 between the United States and Canada poses an ongoing “specific threat to human life or national interests.”

U.S. and Canadian officials have mutually determined that non-essential travel between the United States and Canada poses additional risk of transmission and spread of COVID-19 and places the populace of both nations at increased risk of contracting COVID-19. Moreover, given the sustained human-to-human transmission of the virus, returning to previous levels of travel between the two nations places the personnel staffing land ports of entry between the United States and Canada, as well as the individuals traveling through these ports of entry, at increased risk of exposure to COVID-19. Accordingly, and consistent with the authority granted in 19 U.S.C. 1318(b)(1)(C) and (b)(2), 6 I have determined that land ports of entry along the U.S.-Canada border will continue to suspend normal operations and will only allow processing for entry into the United States of those travelers engaged in “essential travel,” as defined below. Given the definition of “essential travel” below, this temporary alteration in land ports of entry operations should not interrupt legitimate trade between the two nations or disrupt critical supply chains that ensure food, fuel, medicine, and other critical materials reach individuals on both sides of the border.

For purposes of the temporary alteration in certain designated ports of entry operations authorized under 19 U.S.C. 1318(b)(1)(C) and (b)(2), travel through the land ports of entry and ferry terminals along the United States-Canada border shall be limited to “essential travel,” which includes, but is not limited to—

• U.S. citizens and lawful permanent residents returning to the United States;

• Individuals traveling for medical purposes ( e.g., to receive medical treatment in the United States);

• Individuals traveling to attend educational institutions;

• Individuals traveling to work in the United States ( e.g., individuals working in the farming or agriculture industry who must travel between the United States and Canada in furtherance of such work);

• Individuals traveling for emergency response and public health purposes ( e.g., government officials or emergency responders entering the United States to support federal, state, local, tribal, or territorial government efforts to respond to COVID-19 or other emergencies);

• Individuals engaged in lawful cross-border trade ( e.g., truck drivers supporting the movement of cargo between the United States and Canada);

• Individuals engaged in official government travel or diplomatic travel;

• Members of the U.S. Armed Forces, and the spouses and children of members of the U.S. Armed Forces, returning to the United States; and

• Individuals engaged in military-related travel or operations.

The following travel does not fall within the definition of “essential travel” for purposes of this Notification—

• Individuals traveling for tourism purposes ( e.g., sightseeing, recreation, gambling, or attending cultural events).

At this time, this notification does not apply to air, freight rail, or sea travel between the United States and Canada, but does apply to passenger rail and ferry travel between the United States and Canada. These restrictions are temporary in nature and shall remain in effect until 11:59 p.m. EDT on May 20, 2020. This notification may be amended or rescinded prior to that time, based on circumstances associated with the specific threat.

The Commissioner of U.S. Customs and Border Protection (CBP) is hereby directed to prepare and distribute appropriate guidance to CBP personnel on the continued implementation of the temporary measures set forth in this Notification. The CBP Commissioner may determine that other forms of travel, such as travel in furtherance of economic stability or social order, constitute “essential travel” under this notification. Further, the CBP Commissioner may, on an individualized basis and for humanitarian reasons or for other purposes in the national interest, permit the processing of travelers to the United States not engaged in “essential travel.”

The Acting Secretary of Homeland Security, Chad F. Wolf, having reviewed and approved this document, is delegating the authority to electronically sign this document to Chad R. Mizelle, who is the Senior Official Performing the Duties of the General Counsel for DHS, for purposes of publication in the Federal Register .

Background

On March 24, 2020, DHS published notice of the Secretary's decision to temporarily limit the travel of individuals from Mexico into the United States at land ports of entry along the United States-Mexico border to “essential travel,” as further defined in that document. 1 The document described the developing circumstances regarding the COVID-19 pandemic and stated that, given the outbreak and continued transmission and spread of COVID-19 within the United States and globally, the Secretary had determined that the risk of continued transmission and spread of COVID-19 between the United States and Mexico posed a “specific threat to human life or national interests.” The Secretary's action is currently scheduled to expire at 11:59 p.m. EDT on April 20, 2020.

The Secretary has continued to monitor and respond to the COVID-19 pandemic. As of April 19, there are over 2.2 million confirmed cases globally, with over 152,000 confirmed deaths. 2 There are over 720,000 confirmed cases within the United States, 3 over 32,000 in Canada, 4 and over 6,800 in Mexico. 5

Given the outbreak and continued transmission and spread of COVID-19 within the United States and globally, I have determined that the risk of continued transmission and spread of COVID-19 between the United States and Mexico poses an ongoing “specific threat to human life or national interests.”

U.S. and Mexican officials have mutually determined that non-essential travel between the United States and Mexico poses additional risk of transmission and spread of COVID-19 and places the populace of both nations at increased risk of contracting COVID-19. Moreover, given the sustained human-to-human transmission of the virus, returning to previous levels of travel between the two nations places the personnel staffing land ports of entry between the United States and Mexico, as well as the individuals traveling through these ports of entry, at increased risk of exposure to COVID-19. Accordingly, and consistent with the authority granted in 19 U.S.C. 1318(b)(1)(C) and (b)(2), 6 I have determined that land ports of entry along the U.S.-Mexico border will continue to suspend normal operations and will only allow processing for entry into the United States of those travelers engaged in “essential travel,” as defined below. Given the definition of “essential travel” below, this temporary alteration in land ports of entry operations should not interrupt legitimate trade between the two nations or disrupt critical supply chains that ensure food, fuel, medicine, and other critical materials reach individuals on both sides of the border.

For purposes of the temporary alteration in certain designated ports of entry operations authorized under 19 U.S.C. 1318(b)(1)(C) and (b)(2), travel through the land ports of entry and ferry terminals along the United States-Mexico border shall be limited to “essential travel,” which includes, but is not limited to—

• U.S. citizens and lawful permanent residents returning to the United States;

• Individuals traveling for medical purposes ( e.g., to receive medical treatment in the United States);

• Individuals traveling to attend educational institutions;

• Individuals traveling to work in the United States ( e.g., individuals working in the farming or agriculture industry who must travel between the United States and Mexico in furtherance of such work);

• Individuals traveling for emergency response and public health purposes ( e.g., government officials or emergency responders entering the United States to support Federal, State, local, tribal, or territorial government efforts to respond to COVID-19 or other emergencies);

• Individuals engaged in lawful cross-border trade ( e.g., truck drivers supporting the movement of cargo between the United States and Mexico);

• Individuals engaged in official government travel or diplomatic travel;

• Members of the U.S. Armed Forces, and the spouses and children of members of the U.S. Armed Forces, returning to the United States; and

• Individuals engaged in military-related travel or operations.

The following travel does not fall within the definition of “essential travel” for purposes of this Notification—

• Individuals traveling for tourism purposes ( e.g., sightseeing, recreation, gambling, or attending cultural events).

At this time, this notification does not apply to air, freight rail, or sea travel between the United States and Mexico, but does apply to passenger rail and ferry travel between the United States and Mexico. These restrictions are temporary in nature and shall remain in effect until 11:59 p.m. EDT on May 20, 2020. This notification may be amended or rescinded prior to that time, based on circumstances associated with the specific threat.

The Commissioner of U.S. Customs and Border Protection (CBP) is hereby directed to prepare and distribute appropriate guidance to CBP personnel on the continued implementation of the temporary measures set forth in this notification. The CBP Commissioner may determine that other forms of travel, such as travel in furtherance of economic stability or social order, constitute “essential travel” under this notification. Further, the CBP Commissioner may, on an individualized basis and for humanitarian reasons or for other purposes in the national interest, permit the processing of travelers to the United States not engaged in “essential travel.”

The Acting Secretary of Homeland Security, Chad F. Wolf, having reviewed and approved this document, is delegating the authority to electronically sign this document to Chad R. Mizelle, who is the Senior Official Performing the Duties of the General Counsel for DHS, for purposes of publication in the Federal Register .

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

On January 28, 2020, we proposed to approve updates to certain PSCAA regulations currently in the SIP, remove obsolete regulations, and approve a subset of updated Ecology regulations to apply in PSCAA's jurisdiction (85 FR 4921). The reasons for our proposed approval were stated in the proposed rule and will not be re-stated here.

The public comment period for our proposed action ended on February 27, 2020. We received two comments. Both comments are included in the docket for this action. The first comment focused on permitting requirements under the Prevention of Significant Deterioration (PSD) program operated in Washington State by Ecology and the Energy Facility Site Evaluation Council (EFSEC). Saliently, the EPA did not propose any changes to the PSD regulations in Washington Administrative Code (WAC) 173-400-700 through 173-400-750. Further, as discussed in the proposal for this action, PSCAA does not issue PSD permits in Washington State. For the above reasons, we consider the first comment to be outside the scope of this action. The second comment was a generalized critique of the EPA. We do not consider these comments to be germane or relevant to this action and therefore not adverse to this action. The comments lack the required specificity to the proposed SIP revision and the relevant requirements of Clean Air Act (CAA) section 110. Moreover, none of the comments address a specific regulation or provision in question or recommend a different action on the SIP submission from what the EPA proposed. Therefore, we are finalizing our action as proposed.

The EPA is approving and incorporating by reference into the Washington SIP at 40 CFR 52.2470(c)— Table 7—Additional Regulations Approved for the Puget Sound Clean Air Agency (PSCAA) Jurisdiction, the following PSCAA Regulation I sections (effective date):

• 1.01 (11/01/1999), 1.07 (12/01/2018), 3.03(f) (02/01/2012), 3.04 (07/01/2012), 3.25 (11/01/2019), 5.03 (11/01/2016), 5.05 (02/01/2017), 6.01 (05/01/2013), 6.03 (11/01/2015), 6.09 (05/01/2004), 6.10 (09/01/2001), 7.09 (02/01/2017), 9.03 (05/01/2004), 9.04 (05/01/2004), 9.07 (05/19/1994), 9.08 (05/01/2004), 9.09 (06/01/1998), 9.11(a) (04/17/1999), 9.13 (06/09/1988), 9.15 (04/17/1999), 9.16 (12/02/2010), 9.18 (03/02/2012), and 12.03 (11/01/2015).

The EPA is also approving and incorporating by reference PSCAA's adoption by reference of the following Chapter 173-400 WAC provisions submitted for approval (effective date):

• 173-400-030 (12/29/2012), 173-400-081 (04/01/2011), 173-400-110 (12/29/2012), 173-400-111 (07/01/2016), 173-400-112 (12/29/2012), 173-400-113 (12/29/2012), 173-400-117 (12/29/2012), 173-400-171 (07/01/2016), 173-400-200 (02/10/2005), 173-400-560 (12/29/2012), 173-400-800 (4/01/2011), 173-400-810 (07/01/2016), 173-400-820 (12/29/2012), 173-400-830 (07/01/2016), 173-400-840 (07/01/2016), 173-400-850 (07/01/2016), and 173-400-860 (4/01/2011).

Lastly, for Chapter 173-400 WAC provisions not adopted by reference by PSCAA, we are approving the following updates to apply within PSCAA's jurisdiction (effective date):

• 173-400-020 (12/29/2012), 173-400-040 (09/16/2018), 173-400-091 (4/1/2011), 173-400-105 (11/25/2018), 173-400-118 (12/29/2012), 173-400-131 (04/1/2011), 173-400-136 (12/29/2012), 173-400-151 (2/10/2005), and 173-400-175 (2/10/2005).

Please see the amendatory text for more detailed information about the provisions submitted and approved in this action, including local agency corollaries which replace certain Chapter 173-400 WAC provisions and exclusions to our approval.

In addition to the regulations approved and incorporated by reference above, the EPA reviews and approves state and local clean air agency submissions to ensure they provide adequate enforcement authority and other general authority to implement and enforce the SIP. However, regulations describing such agency enforcement and other general authority are generally not incorporated by reference so as to avoid potential conflict with the EPA's independent authorities. On August 31, 2004, the EPA reviewed and approved Regulation I, sections 3.01, 3.05, 3.09, 3.13, 3.15, 3.17, 3.19, and 3.21 as providing PSCAA adequate enforcement and other general authority for purposes of implementing and enforcing its SIP but did not incorporate these provisions by reference (69 FR 53007). While these provisions remain unchanged since our last review and approval, we are including these sections in 40 CFR 52.2470(e), EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures, as approved but not incorporated by reference regulatory provisions. Lastly, PSCAA updated Regulation 1, sections 3.07 and 3.11 which we are approving, but not incorporating by reference.

As discussed in the proposal for this action, we are removing from the SIP Regulation I, sections 5.02, 6.03(b)(10) [formerly 6.03(b)(17)], 6.04, 6.06, 6.07, and 6.08. We are also removing outdated Chapter 173-400 WAC provisions and replacing them with the submitted PSCAA replacement corollaries, including PSCAA's adoption by reference of certain Chapter 173-400 WAC provisions, or the currently approved updates to Chapter 173-400 WAC. Please see 85 FR 10301 (February 24, 2020) for our most recent approval of Chapter 173-400 WAC.

This revision to the SIP applies specifically to the PSCAA jurisdiction incorporated into the SIP at 40 CFR 52.2470(c)—Table 7. As discussed in our proposal, local air agency jurisdiction in Washington is generally defined on a geographic basis; however, there are exceptions. By statute, PSCAA does not have authority for sources under the jurisdiction of EFSEC. See Revised Code of Washington Chapter 80.50. Under the applicability provisions of WAC 173-405-012, 173-410-012, and 173-415-012, PSCAA also does not have jurisdiction for kraft pulp mills, sulfite pulping mills, and primary aluminum plants. For these sources, Ecology retains statewide, direct jurisdiction. Ecology and EFSEC also retain statewide, direct jurisdiction for issuing PSD permits. Therefore, the EPA is not approving into 40 CFR 52.2470(c)—Table 7 those provisions of Chapter 173-400 WAC related to the PSD program. Specifically, these provisions are WAC 173-400-116 and WAC 173-400-700 through 173-400-750, which the EPA has already approved as applying state-wide under 40 CFR 52.2470(c)—Tables 2 and 3.

Also, as described in our proposal for this action, jurisdiction to implement the visibility permitting program contained in WAC 173-400-117 varies depending on the situation. Ecology and EFSEC retain authority to implement WAC 173-400-117 as it relates to PSD permits. However, for facilities subject to major nonattainment new source review (NSR) under the applicability provisions of WAC 173-400-800, incorporated by reference in Regulation I, we are approving PSCAA's implementation of those parts of WAC 173-400-117 as they relate to major nonattainment NSR permits. Therefore, we are modifying the visibility protection Federal Implementation Plan contained in 40 CFR 52.2498 to reflect the approval of WAC 173-400-117 as it applies to implementation of the major nonattainment NSR program in PSCAA's jurisdiction.

Lastly, this SIP revision is not approved to apply on any Indian reservation land in Washington except as specifically noted below and is also not approved to apply in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). Washington's SIP is approved to apply on non-trust land within the exterior boundaries of the Puyallup Indian Reservation, also known as the 1873 Survey Area. Under the Puyallup Tribe of Indians Settlement Act of 1989, 25 U.S.C. 1773, Congress explicitly provided state and local agencies in Washington authority over activities on non-trust lands within the 1873 Survey Area.

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, we are finalizing the incorporation by reference as described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these materials generally available through https://www.regulations.gov and at the EPA Region 10 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by the EPA for inclusion in the SIP, have been incorporated by reference by the EPA into that plan, are fully federally-enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of the EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 1

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

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

• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;

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

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

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

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

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

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

• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because it does not address technical standards; and

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

The SIP is not approved to apply on any Indian reservation land in Washington except as specifically noted below and is also not approved to apply in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). Washington's SIP is approved to apply on non-trust land within the exterior boundaries of the Puyallup Indian Reservation, also known as the 1873 Survey Area. Under the Puyallup Tribe of Indians Settlement Act of 1989, 25 U.S.C. 1773, Congress explicitly provided State and local agencies in Washington authority over activities on non-trust lands within the 1873 Survey Area. Consistent with EPA policy, the EPA provided a consultation opportunity to the Puyallup Tribe in a letter dated March 21, 2018.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 22, 2020. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

For the reasons set forth in the preamble, 40 CFR part 52 is amended as follows:

Table of Contents I. Overview A. Summary of the Action B. Potentially Affected Entities C. Statutory Authority II. Amendments to Quality-Assurance Requirements During the COVID-19 National Emergency A. Background and Rationale B. Description of Amendments C. Expected Impacts III. Rulemaking Procedures and Findings of Good Cause IV. Request for Comment V. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review, and Executive Order 13563: Improving Regulation and Regulatory Review B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs C. Paperwork Reduction Act D. Regulatory Flexibility Act E. Unfunded Mandates Reform Act F. Executive Order 13132: Federalism G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments H. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks I. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use J. National Technology Transfer Advancement Act K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations L. Congressional Review Act M. Determination Under CAA Section 307(b) I. Overview A. Summary of the Action

The emissions monitoring, recordkeeping, and reporting regulations at 40 CFR part 75 (referred to here as the “part 75 regulations” or “part 75 requirements”) require affected sources not only to continuously monitor emissions and other data for every operating hour in a control period, but also to conduct a variety of periodic or event-driven tests to ensure high quality of the reported data. Part 75 also requires sources to report substitute data instead of actual monitored data for operating hours when a required test has not been completed in a timely manner. The sources must continue reporting substitute data until the delayed test is successfully completed. The substitute data are intentionally conservative ( i.e., high-biased), causing the emissions reported for the source to be higher than if the delayed test had been completed on time. The data become increasingly high-biased over time and ultimately may be as high as a unit's maximum potential emissions. Most sources subject to part 75 participate in EPA trading programs that require surrender of sulfur dioxide (SO 2 ) or nitrogen oxides (NO X ) emission allowances for each ton of reported emissions, so the increase in reported emissions following a missed test deadline results in an increase in the quantity of allowances that must be surrendered, with a corresponding increase in the source's allowance costs. In ordinary circumstances, this regulatory approach appropriately provides operators with a strong incentive to conduct all required tests by the applicable deadlines.

While affected sources typically perform part 75 continuous monitoring activities using highly automated monitoring systems overseen by plant staff, most sources conduct certain required part 75 tests using outside contractor personnel. Some tests also require calibration gases to be obtained from outside facilities or require fuel samples to be analyzed at outside laboratories. Consequently, current travel, plant access, and other safety restrictions related to the novel coronavirus disease (COVID-19) emergency, as well as shutdowns of external facilities that provide necessary supplies or services, may make compliance with part 75 testing requirements difficult for some sources. Moreover, because of uncertainty regarding the duration of the restrictions and because tests requiring outside contractor personnel often must be scheduled months in advance, operators missing test deadlines now face considerable uncertainty as to when they will be able to reschedule and complete any delayed tests. However, the existing part 75 regulations require sources to report substitute data following all missed test deadlines until the tests are successfully completed, regardless of the reason for missing the test and the possible inability to reschedule the test for multiple months because of restrictions related to the emergency. Based on the reported dates of previous tests, EPA believes that from April to June of this year, approximately 1,000 units will face deadlines for part 75 tests that typically require outside contractor personnel. In light of the current COVID-19 national emergency, EPA has decided that a temporary alternative is needed to the part 75 data substitution requirements following tests that are not completed in a timely manner because of travel, plant access, or other safety restrictions related to the emergency. EPA believes that establishment of a temporary alternative is necessary to reduce risks to power plant operators and other essential personnel from exposure to COVID-19 and is consistent with similar social distancing efforts being taken at this time by all levels of government and the private sector while ensuring that mission-essential functions can be performed.

In this action, EPA is amending the part 75 data substitution requirements to establish a limited, temporary exception that applies only under qualifying conditions related to the current COVID-19 national emergency. Specifically, in place of the existing requirements to report substitute data following any failure to complete a required test, the amendments instead allow actual monitored data to be reported after certain missed test deadlines, as long as the failure to complete the test is caused by travel, plant access, or other safety restrictions implemented to address the COVID-19 emergency and the monitored data would be considered valid if not for the delayed test. As a condition of applying the amended procedures, sources must document the reasons for delaying any required test and notify EPA when a test is delayed and when the delayed test is later completed. The notifications must include certifications that the source meets the criteria for using the amended procedures. EPA will post summaries of these notifications on a publicly accessible website. The amended requirements apply until the required test can be completed, but no longer than the duration of the COVID-19 national emergency plus a grace period of 60 days to complete delayed tests, and no later than the date of expiration of the amendments. This action does not suspend the existing part 75 requirements to continuously monitor and report emissions for every operating hour in a control period and does not alter any emissions limitations under any program. The amendments and EPA's rationale are described in greater detail in section II of this document.

This is a final rule. The amendments are effective immediately upon publication in the Federal Register and will expire after 180 days. EPA's findings of good cause for issuing the rule without prior notice and opportunity for comment and for making the rule effective immediately upon publication are contained in section III of this document. In section IV of this document, EPA requests comment on all aspects of the rule. Section V of this document addresses required statutory and executive order reviews.

This action applies to any source that reports emissions to EPA under 40 CFR part 75. Generally, the types of sources that could be affected are fossil fuel-fired boilers and stationary combustion turbines serving electricity generators with capacities over 25 megawatts in the contiguous 48 states as well as other fossil fuel-fired boilers and stationary combustion turbines with heat input capacities over 250 million British thermal units per hour located in Alabama, Connecticut, Delaware, Illinois, Indiana, Kentucky, Maryland, Massachusetts, Michigan, Missouri, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, Tennessee, Virginia, West Virginia, and the District of Columbia. Sources meeting these criteria operate in a variety of industries, including but not limited to the following:

Statutory authority to issue the amendments promulgated in this action is provided by Clean Air Act (CAA) section 412, 42 U.S.C. 7651k, which also provided authority for the initial promulgation of 40 CFR part 75, and CAA section 301, 42 U.S.C. 7601, which authorizes the Administrator to “promulgate such regulations as are necessary to carry out his functions under [the CAA].” Statutory authority for the rulemaking procedures followed in this action is provided by Administrative Procedure Act (APA) section 553, 5 U.S.C. 553.

The part 75 regulations were originally promulgated to establish the emissions monitoring, recordkeeping, and reporting requirements under the Acid Rain Program, which covers over 3300 electricity generating units (EGUs) in the contiguous United States. 1 Subsequent rules including the Cross-State Air Pollution Rule (CSAPR)  2 and the CSAPR Update, 3 as well as state implementation plans adopted to meet the requirements of CSAPR, the CSAPR Update, and the NO X SIP Call, 4 require over 600 additional EGUs and approximately 300 large non-EGU boilers and combustion turbines in eastern states to comply with the part 75 regulations. Affected units must follow specified procedures for determining and reporting hourly data for mass emissions of SO 2 , NO X , and carbon dioxide (CO 2 ), NO X emission rate, and/or heat input using either continuous emission monitoring systems (CEMS) or, for qualifying units, several other monitoring methodologies.

The part 75 regulations require sources to report substitute data for their hourly emissions instead of actual monitored data in two general situations, only one of which may merit potentially different treatment during unusual circumstances such as the current COVID-19 emergency. The first general situation, which EPA sees no reason to address differently in emergency versus non-emergency circumstances, occurs when no data are obtained from a monitoring system (or when the data obtained are suspect). Because the part 75 regulations are designed to ensure a continuous record of each affected unit's hourly mass emissions (and other relevant data), the regulations require affected units to report substitute data for each operating hour when monitored data are missing. 5 To give operators a strong incentive to maintain high availability of their monitoring systems, the data substitution provisions of the regulations require units to report increasingly conservative ( i.e., high-biased) data as a missing data period grows longer. 6 For example, when a CEMS fails to provide data for only a few hours—for example, because of a problem that is discovered and repaired promptly—substitute data are generally determined from the data for nearby hours. 7 If a missing data period extends beyond a few hours, the unit must report data first approaching and then equaling the highest values recorded by the CEMS during a specified lookback period. 8 Eventually, when a missing data period extends long enough to cause the CEMS to lack valid data for 20 percent of the unit's previous 8760 operating hours, the unit must report substitute data reflecting the unit's maximum potential value for the monitored variable. 9 Thus, if a CEMS for a baseload unit had no previous missing data periods, after a single missing data period of about five weeks the unit would be required to report for every operating hour the highest hourly value recorded by the CEMS during the lookback period, and after a single missing data period of about ten weeks the unit would be required to report for every operating hour the maximum potential value for the parameter monitored by the CEMS. Because most affected units under part 75 participate in one or more EPA trading programs for SO 2 and/or NO X emissions that require the units to surrender emission allowances equal to the amounts of their reported emissions, reporting higher-than-actual emissions causes the units to incur correspondingly increased costs for allowances under the trading programs. The additional allowance costs resulting from an extended period of missing data appropriately provide operators with incentives to maintain high availability of their emissions monitoring systems at all times when a unit is operating (including during periods of emergency). 10

The second general situation when a source must report substitute data instead of actual monitored data, which EPA believes might be appropriate to address differently in certain emergency circumstances than in non-emergency circumstances, occurs when quality-assurance requirements are not met. The part 75 regulations are designed to achieve not only high availability of monitored data, but also high quality of those data. Accordingly, the regulations require various kinds of quality-assurance testing. Of particular relevance here, the regulations also require substitute data to be reported if the quality-assurance tests are not completed by applicable deadlines, following the same procedures described above for periods when data from a monitoring system are missing. The specific testing requirements depend on which of the permissible part 75 monitoring methodologies is being used and on the type of fuel or monitoring equipment. For units using gas concentration CEMS, the required quality-assurance tests include relative accuracy test audits (RATAs), which involve stack testing and generally must be performed every two or four calendar quarters, as well as quarterly linearity checks and daily calibration error tests. 11 For units using stack gas flow rate CEMS, the required tests include RATAs, which again involve stack testing and generally must be performed every two or four calendar quarters, as well as quarterly leak checks or other tests that depend on the particular technology employed. 12 For gas- and oil-fired units using fuel sampling and fuel flowmeters under appendix D to part 75, the required tests generally include either flowmeter accuracy tests which must be performed every four calendar quarters or else less frequent accuracy tests combined with certain otherwise optional tests performed on a quarterly basis. 13 In addition, the appendix D methodology requires periodic laboratory analyses of fuel samples to determine fuel sulfur content, density, and/or gross calorific value. 14 Under the regulations, a unit's failure to conduct and pass any required CEMS or fuel flowmeter quality-assurance test by the applicable deadline (or within a specified grace period) causes the monitoring system to be considered “out of control” just as an equipment failure would. Data obtained from such a monitoring system are considered invalid and the unit must report substitute data until the required test is conducted and passed. 15 The unit's operator must then bear the correspondingly higher allowance costs that are caused by the higher reported emissions.

In ordinary circumstances, requiring operators to report substitute data when quality-assurance testing deadlines are missed appropriately provides operators with a strong incentive to conduct the required tests in a timely manner, just as they are provided with a strong incentive to maintain high availability of their monitoring equipment. However, in circumstances where an operator may be unable to meet test deadlines because of the COVID-19 outbreak, and where it may not be possible to complete the delayed test for an extended period for reasons outside the operator's control, requiring data substitution cannot induce more timely compliance with quality-assurance requirements. Indeed, to the extent the desire to avoid an extended period of data substitution requirements incentivizes the operator to proceed with testing instead of more rigorously complying with travel, plant access, and other safety restrictions imposed to address the current COVID-19 emergency, the data substitution requirements may put plant operators and other personnel at risk and be in tension with immediate public health imperatives.

Conducting quality-assurance tests often requires resources from outside the plant being tested. RATAs and other stack tests are generally performed by contractor personnel who travel from plant to plant rather than by on-site plant personnel. State regulatory staff often attend as observers. Under emergency conditions when travel or plant access is restricted, it may be difficult or impossible for these outside personnel to perform or observe testing at the previously scheduled times. Further, such tests are often scheduled months in advance, and if a large number of units are delaying tests simultaneously, the average time until the tests can be rescheduled will be even longer than usual. Moreover, RATAs, linearity checks, and calibration error tests of gas concentration CEMS all require calibration gases that are delivered from specialized producers, and appendix D fuel sample analyses are often performed at outside laboratories. Travel, plant access, and other safety restrictions, such as emergency-related shutdowns of external facilities, may make it difficult for affected sources to restock their calibration gases if on-site supplies run out or to obtain analyses of fuel samples.

According to data reported to EPA, part 75 RATAs were performed at 1,033 monitoring locations in the second quarter of 2019. 16 Given the typical four-quarter interval between required RATAs, EPA therefore believes that approximately 1,000 units will have deadlines to perform RATAs in April, May, and June of 2020. 17 Since the beginning of March 2020, EPA has been contacted by nine power plant owners (who collectively operate over 300 units subject to part 75 requirements), an emissions data acquisition and handling system (DAHS) vendor, two consulting companies, and two state regulatory agencies indicating that stack testing requirements will be difficult or impossible to meet on a timely basis in locations where plant access has been limited or where local or state governments have imposed shelter-in-place or other restrictions for all but essential activities. More information on these communications is provided in the document entitled “Stakeholder Communications Regarding the COVID-19 Emergency” in the docket for this action. 18

EPA believes the current national emergency related to COVID-19 has revealed a need for limited, temporary revisions to the quality-assurance requirements in the part 75 regulations. As discussed above, the regulations treat a missed quality-assurance test as equivalent to the failure of a monitoring system to provide any data at all, an approach that in ordinary circumstances appropriately provides operators with a strong incentive to conduct required quality-assurance and certification tests in a timely manner, just as they are provided with a strong incentive to maintain high availability of their monitoring equipment. However, the rationale for treating these two different sorts of failures as equivalent is no longer compelling in the circumstances of this declared national emergency related to COVID-19 that makes it difficult or impossible for some, or many, plant operators to conduct required quality-assurance tests on a timely basis for reasons outside their control and where efforts to conduct the tests may conflict with efforts to address the emergency and put plant operators and other essential personnel at risk. Travel, plant access, and other safety restrictions put in place to protect public health in light of the COVID-19 outbreak are highly likely to interfere with operators' ability to conduct some tests, both by limiting the availability of outside contractor personnel and state regulatory observers and by limiting plants' ability to restock depleted calibration gas supplies. Under the existing part 75 regulations, missing a test deadline could lead to an extended period for which an affected unit could be required to report increasingly conservative substitute data, with adverse cost consequences. Where the reason for missing a test is caused by the COVID-19 outbreak, EPA does not believe it is appropriate to impose this automatic consequence. The amendments promulgated in this action will ensure that the regulations do not inappropriately penalize plant operators.

The need to address the incentive features of the existing regulations is urgent in light of the actions being taken to address the current national emergency and the large number of units facing decisions in the near term on whether to proceed with tests scheduled for April and May. With each upcoming test, plant operators subject to restrictions because of the emergency must decide how to balance the potential regulatory consequences of delaying the test with the actions being implemented to protect the health of key plant and other personnel and public health under the emergency. The consequences to a source of missing a quality-assurance test are small initially, but grow rapidly as the period past the missed test deadline lengthens. Given uncertainty about the duration of the emergency-related restrictions, operators currently face uncertainty about when they might next be able to reschedule a delayed test, which leads to uncertainty regarding the magnitude of the automatic regulatory penalties that they risk incurring by deferring each test. As noted above, in April through June 2020, as many as 1,000 units will face decisions on whether or not to defer scheduled annual or semi-annual RATAs. EPA believes operators should have clear information now about the consequences of decisions regarding plant testing so that they can make the best immediate decisions about how to address the public health emergency and not put their employees at risk because of potential adverse regulatory consequences that can be avoided through a temporary rule amendment.

The primary set of part 75 tests giving rise to the concerns that EPA is addressing in this action comprises the quality-assurance tests discussed above, because of the very large number of those tests that under normal circumstances would be conducted in April and May 2020 and whose timing is therefore very much affected by the current COVID-19 national emergency. However, certain other types of part 75 testing requirements raise analogous concerns for smaller numbers of units, and because of the similarity of the issues, this action addresses the additional tests as well. First, initial certification of a monitoring system under the part 75 regulations likewise requires a variety of tests to be passed by specified deadlines before the monitoring system can be used to report valid data. Some of the same tests may also be required in instances where a monitoring system needs to be recertified following an equipment change. The required certification tests include RATAs for both gas concentration CEMS and stack gas flow rate CEMS, linearity checks and calibration error tests for gas concentration CEMS, and accuracy tests for fuel flowmeters. 19 If certification testing for a monitoring system is not successfully completed by the applicable deadline, the unit must report substitute data in place of the data obtained from that monitoring system until all required tests have been passed. 20 In these instances, substitute data are generally based on the maximum potential values for the monitoring system starting in the first operating hour after the applicable test deadline. The regulations include provisions allowing a unit to report “conditionally valid” data following completion of the first required certification or recertification test until the timely and successful completion of the last required test. However, if all tests are not successfully completed by the applicable deadlines, the data that were previously considered conditionally valid are invalidated, and the unit must instead report substitute data for all operating hours until all required tests have been successfully completed. 21 For any unit whose certification testing schedule calls for testing during the current emergency situation, the considerations over how to balance the regulatory consequences of deferring the test with the public health emergency are the same as for an existing unit facing a near-term decision on a required quality-assurance test.

Second, units using part 75 monitoring methodologies other than CEMS-based methodologies may also be required to meet periodic fuel analysis or emission rate testing requirements. For example, under appendix D to part 75, a qualifying unit calculates reported hourly SO 2 mass emissions and heat input from its monitored hourly fuel usage in combination with unit-specific data on fuel sulfur content, density, and/or gross calorific value. In general, the data on fuel characteristics must be regularly updated through laboratory analyses of fuel samples. When fuel analyses are not updated in a timely manner, as could happen if outside laboratories close in an emergency, the unit must report substitute data that eventually reflect default maximum values for each fuel type.

Other non-CEMS based methodologies under part 75 require periodic NO X emission rate testing. Under appendix E to part 75, a qualifying unit calculates reported hourly NO X mass emissions from its monitored hourly fuel usage in combination with unit-specific historical test data correlating the unit's hourly NO X emission rate to the unit's hourly fuel usage. The appendix E regulations require the unit-specific correlations to be updated based on new stack testing at least every twenty calendar quarters, and if updated appendix E tests are not completed by the deadline, the unit must report substitute data based on the unit's maximum potential NO X emission rate. 22 Similarly, under the low mass emissions (LME) methodology in § 75.19, a qualifying unit may calculate its NO X mass emissions using a fuel-and-unit-specific NO X emission rate based on historical test data instead of using the default emission rates published in the regulations, and the fuel-and-unit-specific NO X emission rate data must be updated based on new stack testing at least every twenty calendar quarters. 23 While the interval between required tests is long, for any unit for which the end of the interval—and therefore the unit's scheduled testing—falls in the emergency period, the considerations over whether to perform or defer the required NO X emission rate testing are again the same as for a unit facing a near-term decision on a required quality-assurance test.

Finally, EPA notes that since its initial promulgation, part 75 has contained provisions at § 75.66 allowing EPA to make exceptions to individual regulatory requirements in appropriate circumstances. This authority is broad but requires exceptions to be made on a case-by-case basis: The designated representative for a unit (or group of units) must submit a petition to EPA for an alternative to a given regulatory requirement, describing the facts and the requested alternative, after which EPA considers the petition and provides a written response granting or denying the request. 24 Importantly, § 75.66 does not authorize EPA to grant exceptions to a given requirement or set of requirements for all affected units (or all affected units meeting specified conditions) simultaneously, even on a temporary basis, and for this reason the section is not well suited to addressing emergency situations that cause a particular regulatory requirement to have unintended consequences for a large number of affected units. Even if EPA ultimately were to grant some or even most of the petitions relating to the emergency, an owner or operator facing an immediate decision on whether to defer a test in light of public health concerns related to the COVID-19 emergency would be unable to predict that outcome at the time when the immediate decision must be made.

The amendments being finalized in this action are carefully targeted to address the regulatory provisions discussed in section II.A of this document while leaving other features of the regulations unchanged. Specifically, the amendments allow sources to continue to report monitored data as valid instead of requiring the sources to report substitute data in instances where data from a monitoring system would otherwise be considered invalid solely because of failure to complete a required test by the applicable deadline and where the failure to complete the test is attributable to travel, plant access, and other safety restrictions implemented to address the COVID-19 national emergency. The amendments cover each of the types of testing requirements described in section II.A of this document—quality-assurance tests, certification and recertification tests, appendix D fuel analyses, and appendix E and LME emission rate tests. Affected units will continue to be required to report emissions data for every operating hour of a control period, and no changes are made to any existing emissions limitations. Sources are required to complete any delayed tests as soon as practicable after relevant emergency-related restrictions no longer apply. The emergency period for which a source can report valid data under the amended provisions is limited to the duration of the COVID-19 national emergency plus a grace period of 60 days to complete delayed tests, but no later than the date of expiration of the amendments ( i.e., 180 days from publication in the Federal Register ).

As discussed in section V.B of this document, the Office of Management and Budget (OMB) has approved an emergency information collection request (ICR) establishing certain new recordkeeping and reporting provisions that will apply to any use of the amended emissions data reporting requirements promulgated in this action. Sources will be required to document the reasons for delaying any required test and to submit notifications to EPA when a test is delayed and when the delayed test is later completed. (In the case of tests that recur more often than quarterly, such as CEMS daily calibration error tests and certain appendix D fuel analyses, sources may treat a series of recurring tests as a single test for purposes of the required notifications.) Each notification of a delayed test must identify the affected unit, the test being delayed, the otherwise applicable deadline, and the emergency-related reasons why the test could not be completed by the deadline. Each notification of completion of a delayed test must identify the affected unit, the completed test, the date as of which emergency-related restrictions that formerly impaired testing for that unit no longer applied, and the date of test completion. In addition, both notifications must include certifications that the unit meets the criteria for using the amended procedures. Notifications may not contain Confidential Business Information (CBI) and must be submitted by email to camdpetitions@epa.gov, generally within five business days after the applicable test deadline or completion date. Notifications may be submitted by the designated representative or an agent with delegated authority to submit quality-assurance test data. EPA will prepare summaries of the submitted notifications identifying the units, the delayed tests and test deadlines, and the completed tests and completion dates and will post the summaries on a publicly accessible website.

In addition to the new recordkeeping and reporting requirements described above, EPA notes that under the existing part 75 regulations, reporting monitored data as valid following failure to complete a required test will require sources to assign a different method of determination code (MODC) to the data in an affected unit's data acquisition and handling system (DAHS), and further notes that the existing regulations at § 75.53 require sources to keep their monitoring plans up to date with respect to any change in a DAHS. In addition, the existing compliance certification requirements at § 75.64(c) require an affected unit's designated representative to “indicate whether the monitoring data submitted were recorded in accordance with the applicable requirements of this part . . .” which now include the provisions promulgated in these amendments. EPA also notes that nothing in these amendments prevents a state from requiring sources to record and/or report additional documentation demonstrating that the reason for any failure to complete a required test by the applicable deadline was in fact caused by restrictions implemented to address COVID-19 national emergency conditions.

The amended provisions are located in new section 40 CFR 75.68 entitled “Temporary modifications to otherwise applicable quality-assurance requirements during the COVID-19 national emergency.” The introductory text of paragraph (a) provides that the provisions of the new section apply during the defined emergency period notwithstanding any other provisions of part 75. Paragraph (a)(1) defines the emergency period for purposes of the new section as the period of the COVID-19 national emergency with an additional 60 days for completion of delayed tests (but not beyond the expiration of the amendments), keying the start and end dates of the national emergency to actions taken by the President and Congress in accordance with the National Emergencies Act, 50 U.S.C. 1601-1651. The start date of the emergency is therefore March 13, 2020, the date on which the President declared the national emergency related to the COVID-19 outbreak. 25 Paragraph (a)(2) identifies the quality-assurance tests, certification or recertification tests, appendix D fuel analyses, and appendix E and LME NO X emission rate tests with respect to which the temporary procedures apply. Paragraph (a)(3) permits sources to report data from monitoring systems as valid during emergency periods despite failure to complete required quality-assurance tests by the applicable deadlines, provided that (i) the data are otherwise valid; (ii) the failure to complete the tests is attributable to travel, plant access, or other safety restrictions implemented to address the COVID-19 national emergency; and (iii) the applicable recordkeeping and reporting requirements are met. Paragraph (a)(4) addresses failures to complete required certification or recertification tests in the same manner, except that the data may be reported as conditionally valid rather than valid, pending successful completion of the delayed certification tests. Paragraph (a)(5) addresses failures to complete required appendix D fuel analyses or appendix E or LME emission rate tests in the same manner and provides that the sources may continue to use the results of the most recent previously approved analyses or tests to determine reported emissions. Paragraph (a)(6) requires any delayed tests to be completed as soon as practicable after the relevant emergency-related restrictions are lifted but no later than 60 days after the end of the COVID-19 national emergency (and no later than the date of expiration of these amendments), requires reporting of substitute data if the delayed tests are not completed by these new deadlines, and provides that the completed tests are considered timely for purposes of identifying the deadlines for the next periodically scheduled tests. Paragraph (a)(7) sets out the new recordkeeping and reporting requirements that apply to use of the amended procedures.

The amendments are being promulgated as a final action and are effective immediately upon publication in the Federal Register . The amendments will expire after 180 days. Paragraph (b) of new § 75.68 provides the effective date and expiration date of the amendments.

The amendments finalized in this action do not suspend any existing requirements for any affected unit to report emissions for any hour of operation and do not alter any existing emissions limitations under any program. EPA consequently has no reason to expect the rule's amendments to the part 75 quality-assurance requirements to cause any change in affected units' emissions behavior. The rule therefore will not result in any harm to public health or the environment that might occur from increased emissions. To the extent that the amendments facilitate plant operators' efforts to comply with travel, plant access, and other safety restrictions imposed to protect public health during the COVID-19 emergency, the amendments will have a positive impact on public health by assisting efforts to slow the spread of the disease.

The actual monitored emissions data that will be reported under the amendments promulgated in this action will be the same data that would have been reported if the required part 75 tests were successfully completed by the applicable deadlines. There is of course a possibility that if the tests had been completed on schedule at all units, the tests would not have been passed at some units, leading to adjustments to those units' monitoring systems, a further round of testing, and improvements to the reported data. While the data reported in emergency situations under the amendments will lack these improvements, failures of RATAs are rare, 26 which EPA considers evidence that operators treat the obligation to maintain their monitoring systems seriously, due at least in part to the periodic RATA requirements. Thus, there is no reason to expect the absence of the data improvements to cause a bias toward understatement of emissions, and given the need to balance data quality considerations with public health and other considerations, EPA believes it is reasonable to treat the resulting data as adequate for purposes of an emergency period.

In the case of units that decide to defer quality-assurance tests that in the absence of the amendments they would have performed as scheduled, EPA generally does not expect a significant impact on the units' quality-assurance costs because the primary effect on their testing costs would simply be to delay the costs for some portion of the COVID-19 emergency period. 27 EPA notes that, because the amendments are limited to circumstances where failure to complete a quality-assurance test is attributable to the COVID-19 national emergency, and there is no suspension of data substitution requirements when data are missing or are invalid for a non-emergency-related reason, there would be no diminishment of operators' existing incentives to maintain their monitoring systems.

By allowing operators to report monitored data instead of substitute data, the amendments will also cause reported emissions levels, both at individual facilities and in aggregate, to track actual monitored emissions levels more closely than would be the case if units had to report the higher, intentionally conservative data required by the data substitution provisions for extended periods of time. The expected consequence of this impact on reported emissions levels is that plant operators will need to surrender fewer emission allowances to cover their reported emissions and will therefore incur lower total costs for emissions allowances. EPA estimates that up to 1,000 units may use the amended regulations to report actual monitored data instead of substitute data for some portion of the current emergency period, but has not attempted to estimate the magnitude of the impacts on either reported emission levels or allowance costs.

EPA is promulgating this rule as a final action without prior notice or opportunity for public comment because the good cause exception under APA section 553(b)(B), 5 U.S.C. 553(b)(B), applies here. If APA section 553(b)(B) did not apply, this rule would be subject to the rulemaking procedures in CAA section 307(d). 28 However, CAA section 307(d) does not apply “in the case of any rule or circumstance referred to in [APA section 553(b)(B)]”  29 — i.e., the good cause exception noted above—making this rule subject to the rulemaking procedures in APA section 553 instead, other than subsection 553(b). 30 APA section 553(b)(B) allows an agency to promulgate a rule without providing prior notice and opportunity for public comment “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rule issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.”

EPA finds that there is good cause for promulgating this final rule without providing prior notice and an opportunity for public comment because providing such notice and opportunity for comment, with respect to the amendments promulgated in this action, is impracticable and contrary to the public interest for the reasons further explained in this section. There is an urgent need for EPA to revise the part 75 regulations to adjust the near-term and cascading impacts on sources not meeting certain regulatory requirements during national emergencies, such that sources are better able to abide by the public health restrictions put in place to address the current national emergency concerning the COVID-19 outbreak. As noted above, EPA has been contacted by plant owners who collectively operate over 300 affected units, as well as stack-testing companies and state air agencies, regarding near-term problems in completing required part 75 quality-assurance tests because of travel and plant access restrictions imposed to protect public health in light of the COVID-19 outbreak. 31 Personnel who would not be on-site for normal plant operations are often required to conduct these quality-assurance tests. In light of the current health emergency, many plant operators have restricted plant access to reduce the risk to plant essential personnel as well as the general public. In addition, travel has been severely restricted. Compliance by plant operators and others with these efforts to address the COVID-19 emergency are in tension with the existing regulatory provisions that automatically penalize plant operators for failing to complete required tests even when completing the tests requires travel or plant access that would otherwise be restricted because of the emergency. It is a matter of urgency for EPA to address this issue now so that plant operators can make informed decisions regarding plant access and determine whether to perform or delay tests scheduled in April and May 2020. If EPA were to delay action, the potential consequences of failing to timely conduct quality assurance tests would either lead to a weakening of steps taken to address the COVID-19 emergency or penalize plant operators for enforcing travel and plant access restrictions. As explained in this document, EPA has determined that targeted, narrow revisions to the regulations to give plant operators additional flexibility regarding the timing of quality assurance tests can address this urgent problem without adversely impacting air quality or public health.

EPA has determined that there is good cause to forgo a public notice and comment process because such public process is impracticable, since notice and comment rulemaking would impair the agency's ability to timely address an urgent situation under our current regulations that has the potential to threaten public health and safety. In sum, the current regulations result in automatic penalties if certain requirements are not met but meeting those requirements could require sources to take actions contradictory to restrictions in place to address the COVID-19 emergency. Specifically, the flexibilities provided through this rule potentially impact over 1,000 units with upcoming test deadlines in April, May, and June of this year. Providing public notice and comment is impracticable, because plant operators must make decisions regarding whether to conduct tests in April and May 2020. Because of the limited amount of time between the declaration of the COVID-19 national emergency and the applicable testing deadlines, there was insufficient time to seek comment on the rule.

Taking the additional time required to allow for submission of comments and development of a response to comments is impracticable because, in this time of emergency, it would delay finalization of amendments needed to assure source operators that efforts to address the COVID-19 national emergency will not result in automatic adverse consequences for the many sources likely to be impacted. Although the costs to sources of reporting substitute data may be small initially, the costs grow substantially over time, and the operators need to make decisions in the near-term on whether to defer testing while facing considerable uncertainty as to when it will next be possible for them to conduct the testing (and, therefore, how large the costs may eventually become). It is therefore a matter of urgency to promulgate these amendments to address the tension between the existing regulations and travel and plant access restrictions imposed to address the public health emergency and protect essential plant and other personnel. 32 EPA has concluded that an immediate response—promulgating these final amendments—is needed to ensure that part 75 regulatory requirements do not impose unnecessary adverse consequences on affected sources due to travel restrictions and other limitations on movement and plant access in place to respond to the COVID-19 national emergency. Issuance of the amendments is needed to assure operators now that they will not, in fact, be penalized for deciding now to defer testing when proceeding with tests as scheduled would not be in accordance with such restrictions. As noted in section II.A of this document, by approximately five weeks after a missed quality-assurance test deadline, a baseload unit must report substitute data in all operating hours based on its highest hourly data value from a lookback period, and by approximately ten weeks after a missed test deadline, such a unit must report its maximum potential values. Notice-and-comment rulemakings (which in the case of this action, under CAA section 307(d), would involve providing an opportunity for a public hearing  33 and a comment period extending at least 30 days following the public hearing, and would also require time to evaluate and respond to all significant comments received) frequently take much longer than ten weeks.

EPA has also determined that there is good cause to forgo a public notice and comment process for this rule because such public process is contrary to the public interest. The delay associated with undertaking ordinary notice and comment procedures would, in fact, harm the public interest here. Such a delay would keep in place EPA regulations that incentivize actions counter to the restrictions necessary to protect public health and to address the COVID-19 emergency. Approximately 1,000 sources with upcoming test deadlines in April, May, and June of this year are potentially impacted by the automatic provisions in the part 75 monitoring regulations and must make personnel and other decisions regarding operation of the sources before their respective test deadlines, including decisions regarding access to perform quality-assurance tests and certification tests. It is imperative that EPA provide immediate assurance that adverse consequences (in the form of impacts that flow from not meeting certain required testing deadlines that affect allowance holding requirements for reasons not anticipated when establishing the current requirements) will not flow from measures taken to comply with directives to protect public health, and to better ensure that the existing requirements would not result in actions being taken during the national emergency that would run counter to the efforts and restrictions in place to address the public health in light of the COVID-19 outbreak. 34 At the same time, the amendments are carefully targeted to avoid collateral adverse impacts. Specifically, the amendments stop the automatic penalties discussed above in national emergency circumstances but not in non-national emergency circumstances, they leave other monitoring-related requirements and reporting requirements in place, and they do not alter any emissions limitations. In addition, the regulatory revisions promulgated in this document will expire in 180 days absent further action by EPA.

Thus, EPA finds good cause under APA section 553(b)(B) to take this final action without prior notice or opportunity for comment both because providing notice and an opportunity for comment would be impracticable and because it would be contrary to the public interest.

The amendments promulgated in this final rule will expire in 180 days. In deciding that the amendments should expire in 180 days, EPA considered the importance of providing regulatory certainty to the regulated community discussed above and the time-frame needed to conduct a full notice-and-comment rulemaking. Given the current uncertainty concerning the spread of COVID-19, EPA believes it is reasonable to provide regulatory certainty to sources that the amendments in this action will be in effect for at least 180 days. At the same time, given the narrow scope of the amendments, some stakeholders might challenge the reasonableness of keeping the amendments in effect on a temporary basis for longer than 180 days on the grounds that the Agency might have been able to make the temporary amendments effective beyond 180 days through notice-and-comment rulemaking within such a time period. For these reasons, EPA is providing that the amendments will expire in 180 days.

EPA is also making this final rule effective immediately upon publication in the Federal Register . As discussed in the first paragraph of this section, if the good cause exception in APA section 553(b)(B) did not apply, this rule would be subject to the rulemaking procedures in CAA section 307(d). Instead, because CAA section 307(d) does not apply, the rule is subject to the rulemaking procedures in APA section 553 other than subsection 553(b). 35 APA section 553(d), which therefore applies to this rule, generally requires that actions covered by the section become effective not less than 30 days after publication but also provides several exceptions.

Under APA section 553(d)(1), rulemaking actions may become effective less than 30 days after publication if the rule “grants or recognizes an exemption or relieves a restriction.” The purpose of this provision is to “give affected parties a reasonable time to adjust their behavior before the final rule takes effect.”  36 However, when the agency grants or recognizes an exemption or relieves a restriction, affected parties do not need a reasonable time to adjust because the effect is not adverse. EPA has determined that this rule grants or recognizes an exemption or relieves a restriction because the nature of the rule change being approved is to allow sources to report their actual monitored data values instead of being required to report substitute data values—a change which is virtually always advantageous to the source—in circumstances where the source fails to complete a required test by the applicable deadline for reasons caused by this COVID-19 national emergency.

Additionally, APA section 553(d)(3) allows an effective date less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.” As noted above, the purpose of the 30-day waiting period generally prescribed in section 553(d) is to give affected parties a reasonable time to adjust their behavior before the final rule takes effect. Thus, in determining whether good cause exists to waive the 30-day delay, an agency should “balance the necessity for immediate implementation against principles of fundamental fairness which require that all affected persons be afforded a reasonable amount of time to prepare for the effective date of its ruling.”  37 In the case of this rule, EPA has determined that there is good cause for making this final rule effective immediately. Regarding urgency, EPA finds the that the reasons supporting EPA's finding of good cause under APA section 553(b)(B) for making this action final without prior notice or opportunity for comment also support an immediate effective date. Primarily, it is urgent for EPA to revise the part 75 regulations to adjust the near-term and cascading impacts of sources not meeting certain regulatory requirements during national emergencies, such that sources are better able to abide with restrictions in place to address the current national emergency concerning the COVID-19 outbreak without facing unintended adverse regulatory consequences. Further, this rule raises no material concerns regarding the fairness of imposing new requirements without additional notice because it does not create any new regulatory requirements such that affected parties would need time to prepare before the rule takes effect. Rather, this action simply allows sources to report actual monitored data values instead of substitute data values in specified circumstances, which is both advantageous to the sources and readily accomplished using their existing monitoring equipment and reporting software. For these reasons, EPA finds good cause exists for this action to become effective on the date of publication in the Federal Register .

As explained above, EPA finds good cause to take this final action without prior notice or opportunity for public comment and to make this action effective immediately upon publication in the Federal Register . However, EPA is also implementing this action on a temporary basis only and is providing notice and an opportunity for comment on the content of the temporary amendments. EPA requests comment on all aspects of this rule. EPA is not reopening for comment any provisions of 40 CFR part 75 other than the specific provisions added by this rule.

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

This action is a significant regulatory action that was submitted to OMB for review because it may raise novel legal or policy issues. Any changes made in response to OMB recommendations have been documented in the docket.

This action is not expected to be subject to Executive Order 13771 because it is not expected to result in more than de minimus costs on net.

The information collection activities in this rule have been submitted for approval to OMB under the PRA as an emergency information collection request (ICR). You can find a copy of the ICR document in the docket for this rule at regulations.gov (Docket No. EPA-HQ-OAR-2020-0211), and it is briefly summarized here.

The collection of information is necessary in order to ensure that the amended procedures that allow sources to report actual monitored data instead of substitute data when a test cannot be completed by the applicable deadline because of travel, plant access, and other safety restrictions implemented to address the COVID-19 national emergency are used only in accordance with the regulations. Sources are required to maintain records demonstrating that the reasons they were unable to complete delayed tests by the applicable deadlines were related to travel, plant access, or other safety restrictions put in place to address the COVID-19 national emergency. Sources are also required to submit notifications to EPA following the delay or completion of a test for which the amended procedures are used. The notification for a delayed test includes information identifying the unit and test, the applicable deadline, and the emergency-related reasons why the test could not be completed by the deadline. The notification for a completed test includes information identifying the unit and test, the date when restrictions related to the COVID-19 national emergency ceased to apply for that unit, and the test completion date. Each notification must include a certification of accuracy in order to ensure that the unit qualifies to use the amended procedures. To provide transparency regarding the use of the amended procedures, EPA will prepare summaries of the units and states, the delayed tests and test deadlines, and the completed tests and completion dates and will post the summaries on a publicly accessible website.

OMB has approved an emergency ICR that will be in effect for 180 days while these temporary amendments are in effect.

Respondents/affected entities: Approximately 4,300 units that monitor and report emissions under 40 CFR part 75 to meet requirements of the Acid Rain Program, a CSAPR trading program, or the NO X SIP Call.

Respondents' obligation to respond: Required to obtain a benefit (40 CFR 75.68).

Frequency of response: Occasional.

Total estimated burden: 3,000 hours (per year). Burden is defined at 5 CFR 1320.3(b).

Total estimated cost: $273,300 (per year); includes $0 annualized capital or operation & maintenance costs.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

This action is not subject to the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612. The RFA applies only to rules subject to notice-and-comment rulemaking requirements under the APA or any other statute. This rule is not subject to notice-and-comment requirements because the Agency has invoked the APA “good cause” exemption under 5 U.S.C. 553(b).

This action does not contain any unfunded mandate as described in the Unfunded Mandates Reform Act, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local, or tribal governments or the private sector. This action simply allows some sources to report actual monitored data values instead of substitute data values for certain required information in specified circumstances related to the COVID-19 national emergency.

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. This action simply allows some sources to report actual monitored data values instead of substitute data values for certain required information in specified circumstances related to the COVID-19 national emergency.

This action does not have tribal implications as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments, on the relationship between the federal government and Indian tribes, or on the distribution of power and responsibilities between the federal government and Indian tribes. This action simply allows some sources to report actual monitored data values instead of substitute data values for certain required information in specified circumstances related to the COVID-19 national emergency. Thus, Executive Order 13175 does not apply to this action.

EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk. This action simply allows some sources to report actual monitored data values instead of substitute data values for certain required information in specified circumstances related to the COVID-19 national emergency.

This action is not a “significant energy action” because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. This action simply allows some sources to report actual monitored data values instead of substitute data values for certain required information in specified circumstances related to the COVID-19 national emergency.

This rulemaking does not involve technical standards.

EPA believes that this action is not subject to Executive Order 12898 because it does not establish an environmental health or safety standard. This action simply allows some sources to report actual monitored data values instead of substitute data values for certain required information in specified circumstances related to the COVID-19 national emergency.

This action is subject to the Congressional Review Act (CRA), and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. The CRA allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice-and-comment rulemaking procedures are impracticable, unnecessary, or contrary to the public interest (5 U.S.C. 808(2)). EPA has made a good cause finding for this rule as discussed in section III of this document, including the basis for that finding.

CAA section 307(b)(1), 42 U.S.C. 7607(b)(1), indicates which United States Courts of Appeals have venue for petitions of review of final actions by EPA. This section provides, in part, that petitions for review must be filed in the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) if (i) the Agency action consists of “nationally applicable regulations promulgated, or final action taken, by the Administrator,” or (ii) the action is locally or regionally applicable, but “such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.” This action amends existing regulations that apply to sources in 48 states and the District of Columbia, and thus the action applies to sources in the same jurisdictions. For this reason, the Administrator determines that this final action is nationally applicable or, in the alternative, is based on a determination of nationwide scope and effect for purposes of section 307(b)(1). Thus, pursuant to section 307(b), any petitions for review of this final action must be filed in the D.C. Circuit within 60 days from the date this final action is published in the Federal Register .

For the reasons stated in the preamble, part 75 of chapter I of title 40 of the Code of Federal Regulations is amended as follows:

The Northeast Multispecies Fishery Management Plan (FMP) regulations give the Regional Administrator the authority to implement certain types of management measures for the common pool fishery, the U.S. Canada Management Area, and Special Management Programs. This action implements a number of these management measures for the 2020 fishing year, effective May 1, 2020.

The regulations at § 648.86(o) give the Regional Administrator the authority to implement or adjust a per-Day-at-Sea (DAS) possession limit and/or a maximum trip limit in order to prevent exceeding the common pool sub-Annual Catch Limit (sub-ACL) in that fishing year. The possession and trip limits implemented for the start of the 2020 fishing year are included in Tables 1 and 2 below. These possession and trip limits were developed based on the common pool sub-ACLs set by Framework Adjustment 58 to the Northeast Multispecies FMP that will be in effect on May 1, 2020. We also considered preliminary 2020 sector rosters, expected common pool participation, and common pool fishing activity in previous fishing years. Based on that information, we project that these adjustments will facilitate optimized harvest of the common pool quotas, while preventing early trimester closures, and preventing catch from exceeding the 2020 fishing year sub-ACLs.

For Handgear A and Handgear B vessels, possession and trip limits for Georges Bank (GB) and Gulf of Maine (GOM) cod are tied to the possession and trip limits for groundfish DAS vessels. The default cod trip limit is 300 lb (136 kg) for Handgear A vessels and 75 lb (34 kg) for Handgear B vessels. If the GOM or GB cod limit for vessels fishing on a groundfish DAS drops below 300 lb (136 kg), then the respective Handgear A cod trip limit must be reduced to the same limit. Similarly, the Handgear B trip limit must be adjusted proportionally to the DAS limit (rounded up to the nearest 25 lb (11 kg)). In accordance with this process, the Handgear A and Handgear B possession and trip limits for GB and GOM cod are as listed below in Table 2.

Vessels with a Small Vessel category permit can possess up to 300 lb (136 kg) of cod, haddock, and yellowtail flounder, combined, per trip. Additionally, for these vessels, the trip limit for all stocks is equal to the landing limits per DAS applicable to multispecies DAS vessels. This is necessary to ensure that the trip limit applicable to the Small Vessel category permit is consistent with the trip limits for other common pool vessels, as described above.

Weekly quota monitoring reports for the common pool fishery can be found on our website at: https://www.greateratlantic.fisheries.noaa.gov/ro/fso/reports/h/nemultispecies.html. We will continue to monitor common pool catch through vessel trip reports, dealer-reported landings, vessel monitoring system catch reports, and other available information and, if necessary, we will make additional adjustments to common pool management measures.

Table 3 includes the initial common pool trimester Total Allowable Catches (TACs) for fishing year 2020. These trimester TACs are based on preliminary sector rosters. However, individual permit holders have until the end of the 2019 fishing year (April 30, 2020) to drop out of a sector and fish in the common pool fishery for the 2020 fishing year. Therefore, it is possible that the sector and common pool catch limits, including the trimester TACs, may change due to changes in sector rosters. If changes to sector rosters occur, updated catch limits and/or possession and trip limits will be announced as soon as possible in the 2020 fishing year to reflect the final sector rosters as of May 1, 2020. We are working to publish a proposed rule to request comment on updated 2020 specifications as recommended by the New England Fishery Management Council in Framework Adjustment 59 to the Northeast Multispecies FMP. If approved, that rule would make additional changes to common pool sub-ACLs. There could be additional changes to common pool possession and trip limits as a result.

The regulations at § 648.85(b)(3)(vii) provide the Regional Administrator with authority to determine the total number of common pool trips that may be declared into the Closed Area II Yellowtail Flounder/Haddock Special Access Program (SAP) to target yellowtail flounder. This action allocates zero trips for common pool vessels to target yellowtail flounder within the Closed Area II Yellowtail Flounder/Haddock SAP for fishing year 2020. As a result, this SAP is only open to target haddock, from August 1, 2020, through January 31, 2021. Northeast multispecies vessels fishing in the SAP must fish with a haddock separator trawl, a Ruhle trawl, or hook gear. Vessels may not fish in this SAP using flounder trawl nets.

The Regional Administrator has the authority to determine the allocation of the total number of trips into the Closed Area II Yellowtail Flounder/Haddock SAP based on several criteria, including the GB yellowtail flounder catch limit and the amount of GB yellowtail flounder caught outside of the SAP. Allocating trips to target yellowtail flounder in the Closed Area II Yellowtail Flounder/Haddock SAP is discretionary if the available GB yellowtail flounder catch is insufficient to support at least 150 trips with a 15,000-lb (6,804-kg) trip limit, for a total catch of 2,250,000 lb (1,020,600 kg). This calculation considers projected catch from all vessels from the area outside the SAP. Based on the fishing year 2020 GB yellowtail flounder groundfish sub-ACL implemented by Framework Adjustment 58 of 295,419 lb (134,000 kg), there is insufficient GB yellowtail flounder to allocate any trips to the SAP. Further, given the low GB yellowtail flounder catch limit, catch rates outside of this SAP are more than adequate to fully harvest the 2020 GB yellowtail flounder allocation.

We are working to publish a proposed rule to request comments on Framework 59 measures. If approved, Framework 59 would implement a 2020 GB yellowtail flounder sub-ACL that is reduced compared to the Framework 58 sub-ACL. A reduction in the GB yellowtail flounder sub-ACL would reduce the number of potential trips in the Closed Area II yellowtail Flounder/Haddock SAP. As a result, we do not expect that the final rule implementing Framework 59 would allocate trips to the SAP to target yellowtail flounder.

The regulations at § 648.85(b)(6)(vi) authorize the Regional Administrator to close the Regular B DAS program by prohibiting the use of Regular B DAS when the continuation of the program would undermine the achievement of the objectives of the Northeast Multispecies FMP or the Regular B DAS Program. One reason for terminating the program is an inability to constrain common pool catches to the Incidental Catch TACs.

Framework Adjustment 58 to the Northeast Multispecies FMP (84 FR 34799, July 19, 2019) implemented Common Pool Incidental Catch TACs for the Regular B DAS Program for the 2020 fishing year (Table 1). These TACs are further divided into Quarterly Incidental Catch TACs to be monitored and managed during each calendar quarter.

Given that the Incidental Catch TACs allocated to the Regular B DAS Program for several stocks are very small, inseason management of the Regular B DAS Program is likely to be extremely difficult and impractical. Implementation of an inseason action to close the Regular B DAS Program once a Quarterly Incidental Catch TAC for a stock has been reached would not be possible to complete quickly enough to prevent further catch of that stock.

As a result, it is unlikely that we can effectively limit catch to the Incidental Catch TACs during fishing year 2020, and project that continuation of the program would undermine the achievement of the objectives of the Northeast Multispecies FMP and the Regular B DAS Program. The Regular B DAS Program will be closed and use of Regular B DAS is prohibited for the 2020 fishing year, through April 30, 2021. This applies to all vessels issued a limited access Northeast multispecies permit.

This action is authorized by 50 CFR part 648 and is exempt from review under Executive Order 12866.

The Assistant Administrator for Fisheries, NOAA, finds good cause pursuant to 5 U.S.C. 553(b)(B) and 5 U.S.C. 553(d)(3) to waive prior notice and the opportunity for public comment and the 30-day delayed effectiveness period because it would be contrary to the public interest.

The regulations at § 648.86(o) authorize the Regional Administrator to adjust the Northeast multispecies possession and trip limits for common pool vessels in order to prevent the overharvest or underharvest of the pertinent common pool quotas. This action sets the initial common pool possession and trip limits on May 1, 2020, for the 2020 fishing year. The possession and trip limits implemented through this action help to ensure that the Northeast multispecies common pool fishery may achieve the optimum yield for the relevant stocks, while controlling catch to help prevent inseason closures or quota overages. Delay of this action would leave the common pool fishery with the possession and trip limits found in § 648.86, which are too high to control catch. This would likely lead to early closure of a trimester and quota overages. Any overage of the quota for either of the first two trimesters must be deducted from the Trimester 3 quota, which could substantially disrupt the trimester structure and intent to distribute the fishery across the entire fishing year. An overage reduction in Trimester 3 would further reduce fishing opportunities for common pool vessels and likely result in early closure of Trimester 3. Additionally, any overage of the annual quota would be deducted from common pool's quota for the next fishing year, to the detriment of this stock.

The regulations at § 648.85(b)(3)(vii) require that the Regional Administrator announce the total number of allowed trips by common pool vessels that may be declared into the Closed Area II Yellowtail Flounder/Haddock SAP on or about June 1. We have included the announcement in this inseason action to meet this regulatory requirement. Doing so ensures that the fishing industry has sufficient notice in order to plan their activities in the new fishing year. This action is formulaic and is expected by industry. Given the low quota for GB yellowtail flounder in recent years, no trips have been allocated to this SAP from fishing year 2010 to fishing year 2019.

The regulations at § 648.85(b)(6)(vi) authorize the Regional Administrator to close the Regular B DAS program by prohibiting the use of Regular B DAS when the continuation of the program would undermine the achievement of the objectives of the Northeast Multispecies FMP or the Regular B DAS Program. The Regular B DAS program closure implemented through this action will prevent an overage of the Incidental Catch TACs. Delay of this action would provide vessel owners an opportunity to participate in the Regular B DAS Program, but participation and catch in the program may cause the allocation to be exceeded.

For the reasons above, delay of this action for prior notice and the opportunity for public comment and the 30-day delayed effectiveness period would undermine management objectives of the FMP and cause unnecessary negative economic impacts to the common pool fishery.