Pursuant to the Atomic Energy Act of 1954, as amended (the AEA), the Energy Reorganization Act of 1974, and the Department of Energy Organization Act of 1977, the Department of Energy (DOE or the Department) owns and leases nuclear and non-nuclear facilities at various locations in the United States. These facilities are operated either by DOE or by contractors with DOE oversight. Activities at these facilities include, but are not limited to: Research, testing, production, disassembly, or transporting nuclear materials. DOE rules governing nuclear safety at these facilities are set forth in the Nuclear Safety Management rule (10 CFR part 830). The regulations were issued in response to external assessments from the National Academy of Sciences (NAS), the enactment of the Price-Anderson Amendments Act of 1988 (PAAA), and DOE efforts to improve safety at DOE nuclear facilities. Aspects of 10 CFR part 830 were finalized and issued from 1994 to 2001, covering core safety requirements for quality assurance and facility safety basis. Over the past 17 years, DOE has gained considerable experience in the implementation of 10 CFR part 830, and is modifying the requirements to incorporate that experience and help ensure more effective safety performance.

On December 9, 1991, DOE published an Notice of Proposed Rulemaking and Public Hearing proposing “Procedural Rules for DOE Nuclear Activities” (56 FR 64290) and a Notice of Proposed Rulemaking and Public Hearing proposing “Nuclear Safety Management” (1991 Notice, 56 FR 64316) to add Parts 820 and 830, respectively, to Title 10 of the Code of Federal Regulation (CFR). 1 Title 10 CFR part 830 was proposed to establish safety management requirements for DOE nuclear facilities. DOE issued, as final, the sections of 10 CFR part 830 related to the initial provisions (§§ 830.1-830.7) and Subpart A—General Provisions (§§ 830.100-830.120) on April 5, 1994 (1994 Notice, 59 FR 15843).

The Department issued a Notice of Limited Reopening of Comment Periods for the remaining topics to be addressed in 10 CFR part 830 on August 31, 1995 (Reopening Notice, 60 FR 45381).

On October 10, 2000, the Department published an Interim Final Rule and Opportunity for Public Comment (65 FR 60291) which amended the nuclear safety regulations to (1) establish and maintain safety bases for Hazard Category 1, 2, and 3 DOE nuclear facilities and perform work in accordance with safety bases, and (2) clarify that the quality assurance work process requirements apply to standards and controls adopted to meet regulatory or contract requirements that may affect nuclear safety (Interim Final Rule). The Interim Final Rule was also issued to provide further opportunity for public comment on the rule.

Following the public comment period, the Department issued a Final Rule on January 10, 2001 (66 FR 1810).

To incorporate the past 17 years of experience into its implementation of nuclear safety management, DOE issued a Notice of Proposed Rulemaking (NOPR) on 10 CFR part 830 on August 8, 2018 (83 FR 38982). The NOPR proposed amending 10 CFR part 830 to: Facilitate the improvement of facility hazard categorization, modify the process for defining USQs, improve DOE's approval process for facility modifications, and update definitions related to new and existing facilities. The final rule is incorporating the changes to the definition of USQs, the improvement of DOE's approval process for facility modifications, and updates to certain definitions, described in greater detail below. The final rule is not incorporating the proposed change that would have added “or successor document” to 10 CFR 830.202(b)(3), which pertains to facility hazard categorization. Further details on the changes are included in Section III. Description of the Final Rule.

DOE issued a NOPR on August 8, 2018 (83 FR 38982), inviting public comment. The 60-day public comment period also included a series of four public meetings to provide additional opportunities for public input. DOE received public comments from multiple individuals and one entity. For those comments relevant to the proposed changes, DOE provides responses and describes changes from the NOPR in the paragraphs that follow.

DOE did not finalize the proposed language regarding successor versions of hazard categorization standards. Instead, DOE intends to incorporate any future changes to hazard categorization through the rulemaking process. DOE received comments directed toward the recommendation to remove this proposed change, which have been addressed through DOE's decision on this issue.

1. Commenters indicated concern about the proposed deletion of Table 1 in Appendix A to Subpart B, which incorporated a qualitative conceptualization of the methodology for defining hazard categorization from DOE-STD-1027-92, CN1. The comments expressed concern that this proposed change, in conjunction with the proposed addition of “or successor document” to the version of DOE-STD-1027 would potentially allow for DOE to change the hazard categorization methodology without public comment.

Response: DOE maintains the removal of Table 1 in this final rule. 10 CFR part 830 continues to require categorization consistent with a specific quantitative process that is unchanged by the removal. DOE-STD-1027-92, CN1 also continues to provide multiple qualitative concepts to illuminate hazard categorization. In addition, DOE notes that if substantive changes are made to DOE-STD-1027-92, CN1, DOE would conduct a rulemaking to update the reference to DOE-STD-1027-92, CN1, in 10 CFR part 830.

2. Commenters expressed concern that the proposed removal of the approval process for annual updates in § 830.202(c)(2) would make it more difficult for DOE to exercise its authority and responsibility to protect health and minimize danger to life or property. The comments also expressed concern that DOE has not adequately assessed the nature of the problem and therefore, it was unclear if the proposed solution would suffice. The comments noted that the proposed change would place an increased emphasis on the effective implementation of the USQ process and DOE's ability to assess cumulative changes.

Response: DOE agrees that the proposed change increases the importance of an effectively implemented process for USQs. In fact, this increased importance is an intended aspect of the change, as it allows DOE to emphasize the central role the USQ process plays in gaining DOE's approval for changes. The shift to having DOE's approval occur in direct association to proposed changes is intentional and beneficial, and does not preclude DOE from directing changes nor does it present challenges to DOE in exercising its authority. The periodicity of documented safety analysis examinations is based on risk rather than rote annual reviews of changes that have already been approved. Changes to documented safety analyses as a result of positive USQ determinations will continue to be required to be submitted to DOE for review and approval.

3. Commenters expressed concern that the proposed change to the annual approval process would create gaps in how DOE approves the incorporation of changes into the safety basis with regard to Justification for Continued Operations (JCO) and Evaluation of the Safety of the Situation (ESS). In particular, comments were addressed regarding the concern that JCO's and ESS's could represent changes that would not be approved by DOE.

Response: The proposed rule provides in § 830.203(d) that “A contractor responsible for a Hazard Category 1, 2, or 3 DOE nuclear facility must obtain DOE approval prior to taking any action determined to involve a USQ.” The text has not changed from the current Rule (in § 830.203(e)). While JCOs are not explicitly discussed in the Rule, DOE's process for reviewing and approving facility safety bases (DOE-STD-1104-2016) indicates that JCOs, documents that result from positive USQ determinations, are “mechanism[s] by which a contractor may request that DOE review and approve a temporary change to the facility safety basis” and that a “JCO is associated only with situations where the PISA [Potential Inadequacy of the Safety Analysis] USQD is positive.” Given that DOE, pursuant to § 830.203(d), must approve any action determined to involve a USQ, control over significant changes (JCO's or ESS's with a positive USQ determination) is maintained. It is understood that current DOE guidance (DOE G 424.1-1B Chg 2) and practice have frequently used the annual update to process the approval of these changes. This guidance will be updated to reflect the changes in 10 CFR part 830, but the requirement for DOE's approval will not change.

4. Commenters were concerned with language proposed to be added to Appendix A to Subpart B that included statements that could be viewed as requirements, despite the disclaimer that the appendix does not create any new requirements. Specifically, questions were raised about the addition of the statement, “If additional changes are proposed by the contractor and included in the annual update that have not been previously approved by DOE or have not been evaluated as a part of the USQ process, DOE must review and approve these changes.”

Response: Commenters are correct that the appendix does not create new requirements. The statement referenced by the commenter restates a requirement established in the main body of the Rule. Specifically, the new addition to the appendix restates the core requirements already established in § 830.203(c) and § 830.203(d). It is DOE's position that such changes should be evaluated as part of the USQ process, but this statement was included in the appendix to ensure that the past practice of using the annual update as a vehicle for DOE's initial approval would not create confusion regarding the requirement to obtain DOE approval before taking any action DOE determined to involve a USQ.

5. Comments indicated concern that removing the requirement for DOE to approve the annual update would negatively impact DOE's ability to review and direct changes to safety analysis documents.

Response: As stated in § 830.202(c)(3), the contractor responsible for the facility must “[i]ncorporate in the safety basis any changes, conditions, or hazard controls directed by DOE”. There are no limitations placed on DOE's review or direction. To reflect the changes in the annual update process, DOE will revise DOE-STD-1104-2016, Review and Approval of Nuclear Facility Safety Basis and Safety Design Basis Documents, which contains the requirements and guidance for approval of safety basis documents. The revisions will incorporate the changes in requirements within 10 CFR part 830 and provide additional guidance for their implementation.

6. A comment noted that DOE proposed deletion from Appendix A to Subpart B, A. Introduction, the outdated reference to DOE Policy 450.2A, Identifying, Implementing, and Complying with Environmental, Safety and Health Requirements rather than updating the reference to the newest version of the policy, DOE P 450.4A Chg 1, Integrated Safety Management Policy.

Response: The pertinent requirements related to the referenced policy document are already contained in 10 CFR part 830. The removal of the specific reference does not change any requirements in the regulation.

7. Comments were received that recommended an alternate approach to the proposed removal of the concept of a “margin of safety” from the definition of an USQ. The comments specifically note that the Nuclear Regulatory Commission (NRC) process that made a similar change also developed additional criteria during their rulemaking.

Response: There is a long history of the “margin of safety” criteria not providing a safety benefit. DOE has determined that the diversion of effort and attention to resolving the vague application of a criteria that does not result in independent positive determinations could be a net negative impact on the safety of DOE operations. While the NRC process for large reactors has maintained additional criteria that were determined to provide value, the process the NRC uses for non-reactor facilities does not contain these additional criteria. DOE will examine the benefit of additional guidance on the impact of cumulative changes in potential revisions to guidance associated with the USQ process and DOE approval of safety analysis changes.

8. Comments received noted a small number of grammatical improvements, word choice recommendations, and typographical errors.

Response: DOE acknowledges these comments and has made several editorial improvements in the final rule.

With the exception of the changes described below, the modifications to 10 CFR part 830 adopted in this Final Rule are described in the Discussion of Proposed Rule, Proposed Changes in Order of Appearance in Section II.B of DOE's NOPR published August 8, 2018 (83 FR 38982).

1. In § 830.3 Definitions, the definition for “ Hazard Category 1, 2, and 3 DOE nuclear facilities ” was modified to remove “or successor document” pursuant to DOE's decision not to adopt that proposed change. The definition is now that Hazard Category 1, 2, and 3 DOE nuclear facilities are nuclear facilities that meet the criteria for their respective hazard category consistent with the provisions of DOE-STD-1027-92, Change Notice 1 and that Hazard Category 1, 2, and 3 DOE nuclear facilities are required to have safety bases established in accordance with Subpart B of this part. Hazard categories are based on their radioactive material inventories and the potential consequences to the public, workers, and the environment. Hazard Category 1 represents the highest potential consequence and Hazard Category 3 represents the lowest potential consequence of the facilities required to establish safety bases.

2. In § 830.202, Safety basis, (b)(3) now reads identically to the previous text of the Rule, with the proposed insertion of the phrase “or successor document” rescinded pursuant to DOE's decision not to adopt that proposed change.

3. Appendix A to Subpart B to Part 830— General Statement of Safety Basis Policy, Section C. Scope was changed by the inclusion of a comma to improve readability, but did not change intent.

4. In Appendix A to Subpart B to Part 830— General Statement of Safety Basis Policy, Section F. Documented Safety Analysis (3) was changed from “USQ” to “USQ determination” to highlight that the modifier of “positive” is more appropriately applied to a USQ determination rather than a USQ.

5. In Appendix A to Subpart B to Part 830— General Statement of Safety Basis Policy, Section F. Documented Safety Analysis, Table 1 (10) was changed to correct a typographical error in the previous Rule.

6. In Appendix A to Subpart B to Part 830— General Statement of Safety Basis Policy, Section F. Documented Safety Analysis (5) was changed to more closely link the text discussing nuclear facilities with the formal definition established in this Rule.

This final rulemaking has been determined not to be a significant regulatory action under Executive Order (E.O.) 12866, “Regulatory Planning and Review,” 58 FR 51735 (Oct. 4, 1993). Accordingly, this Final Rule was not subject to review by the Office of Information and Regulatory Affairs of the Office of Management and Budget.

On January 30, 2017, the President issued Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs.” That Order stated the policy of the executive branch is to be prudent and financially responsible in the expenditure of funds, from both public and private sources. The Order stated it is essential to manage the costs associated with the governmental imposition of private expenditures required to comply with Federal regulations. This Final rule is expected to be an E.O. 13771 deregulatory action. Additionally, on February 24, 2017, the President issued Executive Order 13777, “Enforcing the Regulatory Reform Agenda.” The Order required the head of each agency designate an agency official as its Regulatory Reform Officer (RRO). Each RRO oversees the implementation of regulatory reform initiatives and policies to ensure that agencies effectively carry out regulatory reforms, consistent with applicable law. Further, E.O. 13777 requires the establishment of a regulatory task force at each agency. The regulatory task force is required to make recommendations to the agency head regarding the repeal, replacement, or modification of existing regulations, consistent with applicable law. At a minimum, each regulatory reform task force must attempt to identify regulations that:

(i) Eliminate jobs, or inhibit job creation;

(ii) Are outdated, unnecessary, or ineffective;

(iii) Impose costs that exceed benefits;

(iv) Create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies;

(v) Are inconsistent with the requirements of Information Quality Act, or the guidance issued pursuant to that Act, in particular those regulations that rely in whole or in part on data, information, or methods that are not publicly available or that are insufficiently transparent to meet the standard for reproducibility; or

(vi) Derive from or implement Executive Orders or other Presidential directives that have been subsequently rescinded or substantially modified.

DOE concludes that this Final rule is consistent with the directives set forth in these executive orders. These provisions in this Final rule are intended, as described in section II, to enhance operational efficiency while maintaining robust safety performance at DOE nuclear facilities.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires preparation of an initial regulatory flexibility analysis for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by Executive Order 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” 67 FR 53461 (Aug. 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the rulemaking process (68 FR 7990). DOE has made its procedures and policies available on the Office of the General Counsel's website ( http://energy.gov/gc/office-general-counsel ).

DOE has reviewed this Final rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. The Final rule will incorporate the experience of more than a decade of implementation to improve the effectiveness of the DOE nuclear safety regulatory framework while maintaining safety performance.

This Final rule is expected to reduce burden on affected DOE contractors. On this basis, DOE certified that this Final rule would not have a significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared a regulatory flexibility analysis for this rulemaking. DOE's certification and supporting statement of factual basis were provided to the Chief Counsel for Advocacy of the Small Business Administration pursuant to 5 U.S.C. 605(b). DOE received no comments on the certification or the economic impact of the proposed rule.

The information collection necessary to administer DOE's nuclear safety program under 10 CFR part 830 is subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. The information collection provisions of this Rule are included in the information collection requirements contained in DOE contracts with DOE prime contractors covered by this Rule and were previously approved by the Office of Management and Budget (OMB) and under OMB Control No. 1910-0300. Public reporting burden for the certification is estimated to average 1.91 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.

DOE has determined that this Final rule is covered under the Categorical Exclusion in DOE's National Environmental Policy Act regulations at paragraph A.5 of Appendix A to Subpart D, 10 CFR part 1021, which applies to rulemaking that interprets or amends an existing rule or regulation without changing the environmental effect of the rule or regulation that is being amended. The Final rule will amend DOE's regulations by removing duplicative approval requirements, updating definitions, and increasing the efficiency of internal processes. These changes are primarily procedural and will not change the environmental effect of 10 CFR part 830. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). For regulatory actions likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect them. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA (62 FR 12820). (This policy is also available at http://energy.gov/gc/office-general-counsel. ) DOE examined this Final rule according to UMRA and its statement of policy and has determined that the rule contains neither an intergovernmental mandate, nor a mandate that may result in the expenditure by State, local, and Tribal government, in the aggregate, or by the private sector, of $100 million or more in any year. Accordingly, no further assessment or analysis is required under UMRA.

Section 654 of the Treasury and General Government Appropriations Act, 1999, 5 U.S.C. 601 note, requires Federal agencies to issue a Family Policymaking Assessment for any proposed rule that may affect family wellbeing. This Final rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

Executive Order 13132, “Federalism,” 64 FR 43255 (Aug. 4, 1999), imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. DOE has examined this Final rule and has determined that it would not preempt State law and would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. No further action is required by Executive Order 13132.

With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (Feb. 7, 1996), imposes on Executive agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. With regard to the review required by section 3(a), section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this Final rule meets the relevant standards of Executive Order 12988.

The Treasury and General Government Appropriations Act, 2001, 44 U.S.C. 3516 note, provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed this Final rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to the Office of Information and Regulatory Affairs (OIRA) a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. This regulatory action has been determined to not be a significant regulatory action, and it would not have an adverse effect on the supply, distribution, or use of energy. Thus, this action is not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects.

As required by 5 U.S.C. 801, DOE will submit to Congress a report regarding the issuance of this final rule prior to the effective date set forth at the outset of this rulemaking. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 804(2).

The Secretary of Energy has approved the publication of this final rule.

This document of the Department of Energy was signed on August 24, 2020, by Dan Brouillette, Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

For the reasons stated in the preamble, DOE revises part 830 of title 10 of the Code of Federal Regulations as set forth below:

On March 27, 2020, the President signed the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act or the Act) (Pub. L. 116-136) to provide emergency assistance and health care response for individuals, families, and businesses affected by the coronavirus pandemic. The Small Business Administration (SBA) received funding and authority through the Act to modify existing loan programs and establish a new loan program to assist small businesses nationwide adversely impacted by the COVID-19 emergency.

Section 1102 of the Act temporarily permits SBA to guarantee 100 percent of 7(a) loans under a new program titled the “Paycheck Protection Program.” Section 1106 of the Act provides for forgiveness of up to the full principal amount of qualifying loans guaranteed under the Paycheck Protection Program (PPP).

On April 24, 2020, the President signed the Paycheck Protection Program and Health Care Enhancement Act (Pub. L. 116-139), which provided additional funding and authority for the PPP. On June 5, 2020, the President signed the Paycheck Protection Program Flexibility Act of 2020 (Flexibility Act) (Pub. L. 116-142), which changed provisions of the PPP relating to the maturity of PPP loans, the deferral of PPP loan payments, and the forgiveness of PPP loans. On July 4, 2020, the President signed into law S. 4116, which reauthorized lending under the PPP through August 8, 2020 (Pub. L. 116-147).

As described below, this interim final rule provides additional guidance concerning the forgiveness and loan review processes for PPP loans of $50,000 or less and, for PPP loans of all sizes, lender responsibilities with respect to the review of borrower documentation of eligible costs for forgiveness in excess of a borrower's PPP loan amount.

Two provisions of this interim final rule are an exercise of rulemaking authority by SBA jointly with Treasury: (1) The de minimis exemption from the full-time equivalent (FTE) employee reduction penalty for PPP loans of $50,000 or less, and (2) the de minimis exemption from the employee salary and wages reduction penalty for PPP loans of $50,000 or less. Otherwise, all provisions in this rule are an exercise of rulemaking authority by SBA alone.

This interim final rule is effective without advance notice and public comment because Section 1114 of the CARES Act authorizes SBA to issue regulations to implement Title I of the Act without regard to notice requirements. In addition, SBA has determined that there is good cause for dispensing with advance public notice and comment on the grounds that it would be contrary to the public interest. Specifically, advance public notice and comment would defeat the purpose of this interim final rule given that SBA began accepting lender loan forgiveness submissions on August 10, 2020. These same reasons provide good cause for SBA to dispense with the 30-day delayed effective date provided in the Administrative Procedure Act (APA). See 5 U.S.C. 553(b)(B). Although this interim final rule is effective on or before date of filing, comments are solicited from interested members of the public on all aspects of the interim final rule, including Section III below. These comments must be submitted on or before November 18, 2020. The SBA and Treasury will consider these comments; comments received on the two interim final rules amended by this interim final rule that were posted on SBA's website on May 22, 2020 and published on June 1, 2020, in the Federal Register ; and the interim final rule amended by this interim final rule that was posted on SBA's website on June 22, 2020 and published on June 26, 2020.

The CARES Act was enacted to provide immediate assistance to individuals, families, and organizations affected by the COVID-19 emergency. Among the provisions contained in the CARES Act are provisions authorizing SBA to temporarily guarantee loans under a new 7(a) loan program titled the “Paycheck Protection Program.” Loans guaranteed under the Paycheck Protection Program (PPP) will be 100 percent guaranteed by SBA, and the full principal amount of the loans may qualify for loan forgiveness.

SBA has previously issued comprehensive regulations and guidance on the loan forgiveness provisions in the CARES Act. As relevant here, on May 22, 2020, SBA and Treasury jointly posted an additional interim final rule on loan forgiveness (85 FR 33004) (First Loan Forgiveness Rule). The SBA also posted an interim final rule on May 22, 2020 on SBA loan review procedures and related borrower and lender responsibilities (85 FR 33010) (First Loan Review Rule). On June 22, 2020, SBA and Treasury jointly posted an interim final rule, Revisions to Loan Forgiveness and Loan Review Procedures Interim Final Rules (85 FR 38304), revising the First Loan Forgiveness Rule and the First Loan Review Rule to incorporate Flexibility Act amendments. On August 4 and 11, 2020, SBA posted Frequently Asked Questions on PPP Loan Forgiveness.

The purpose of this interim final rule is to simplify further (i) the forgiveness and loan review processes for PPP loans of $50,000 or less, and (ii) for PPP loans of all sizes, lender responsibilities with respect to the review of borrower documentation of eligible costs for forgiveness in excess of a borrower's PPP loan amount.

In connection with this rule, SBA is issuing an alternative Loan Forgiveness Application, SBA Form 3508S, for use by PPP borrowers applying for loan forgiveness on PPP loans with a total loan amount of $50,000 or less, except for those borrowers that together with their affiliates  1 received loans totaling $2 million or greater. The Administrator of SBA (Administrator) and the Secretary of the Treasury (Secretary) have concluded that this form strikes an appropriate balance between the need for simplification in the forgiveness process with the responsibility to protect the integrity of the program and safeguard taxpayer funds.

Because SBA is issuing an alternative Loan Forgiveness Application, SBA Form 3508S, the first parenthetical in the first sentence of Part III.2.a and the parenthetical in the first sentence of Part III.6 of the First Loan Forgiveness Rule, as revised by Revisions to Loan Forgiveness and Loan Review Procedures Interim Final Rules, are revised to read as follows: “(SBA Form 3508, 3508EZ, 3508S, as applicable, or lender equivalent)”.

A borrower of a PPP loan of $50,000 or less, other than any borrower that together with its affiliates received loans totaling $2 million or greater, may use SBA Form 3508S (or lender's equivalent form) to apply for loan forgiveness. A borrower that uses SBA Form 3508S (or lender's equivalent form) is exempt from any reductions in the borrower's loan forgiveness amount based on reductions in full-time equivalent (FTE) employees (section 1106(d)(2) of the CARES Act) or reductions in employee salary or wages (section 1106(d)(3) of the CARES Act) that would otherwise apply. As such, Part III.5 of the First Loan Forgiveness Rule, as revised by Revisions to Loan Forgiveness and Loan Review Procedures Interim Final Rules, does not apply to borrowers of loans of $50,000 or less that use SBA Form 3508S (or lender's equivalent form) to apply for loan forgiveness.

The Administrator and the Secretary determined that these exemptions are an appropriate exercise of their joint rulemaking authority to grant de minimis exemptions under section 1106(d)(6) of the CARES Act. The Administrator and the Secretary believe that the additional exemptions set forth above are consistent with the purposes of the CARES Act, including to provide much-needed financial assistance to a broad range of small businesses, and provide borrowers appropriate flexibility in the current economic climate. The Administrator and the Secretary have determined that these exemptions are de minimis. The purpose of the PPP is to provide financial assistance to small businesses and their employees, and the requirements of section 1106(d) focus on the number of employees and compensation. Consequently, in this context, both the aggregate dollar amount of affected loans relative to the aggregate dollar amount of all PPP loans and the number of affected employees are reasonable considerations in assessing whether an exemption is de minimis. There are approximately 3.57 million outstanding PPP loans of $50,000 or less, totaling approximately $62 billion of the $525 billion in PPP loans. Approximately 1.71 million PPP loans of $50,000 or less were made to businesses that reported having zero employees (presumably not counting the owner as an employee) or one employee. To the extent that these businesses have no employees other than the owner ( i.e., all businesses that reported having zero employees and, in SBA's judgment, the majority of businesses that reported having one employee), they are not affected by these exemptions. As a result, based on available data, we estimate that the outstanding PPP loans of the relevant set of potentially affected borrowers (businesses with at least one employee other than the owner) total approximately $49 billion, or 9 percent of the overall PPP loan amount. Within this population of potentially affected loans, SBA believes that most borrowers would not be affected by the loan forgiveness reduction requirements because (1) the borrowers did not reduce FTE employees or reduce employee salaries or wages, or (2) the borrowers would qualify for one of the existing exemptions from loan forgiveness amount reductions. 2 Excluding such borrowers, the aggregate dollar amount of PPP funds affected by these exemptions relative to the aggregate dollar amount of all PPP funds is de minimis.

Because SBA is issuing another alternative Loan Forgiveness Application, SBA Form 3508S, each reference to “SBA Form 3508, 3508EZ, or lender's equivalent form” in Part III.1 of the First Loan Review Rule, as revised by the Revisions to Loan Forgiveness and Loan Review Procedures Interim Final Rules, is replaced with “SBA Form 3508, 3508EZ, 3508S, or lender's equivalent form”.

As noted above, SBA is issuing another alternative Loan Forgiveness Application, SBA Form 3508S. This necessitates several revisions to Part III.2 of the First Loan Review Rule, as revised by the Revisions to Loan Forgiveness and Loan Review Procedures Interim Final Rules.

The following text is added as a new paragraph at the end of Part III.2.a (“What should a lender review?”):

When a borrower submits SBA Form 3508S or lender's equivalent form, the lender shall:

i. Confirm receipt of the borrower certifications contained in the SBA Form 3508S or lender's equivalent form.

ii. Confirm receipt of the documentation the borrower must submit to aid in verifying payroll and nonpayroll costs, as specified in the instructions to the SBA Form 3508S or lender's equivalent form.

Providing an accurate calculation of the loan forgiveness amount is the responsibility of the borrower, and the borrower attests to the accuracy of its reported information and calculations on the Loan Forgiveness Application.

The borrower shall not receive forgiveness without submitting all required documentation to the lender.

As the First Interim Final Rule  3 indicates, lenders may rely on borrower representations. As stated in paragraph III.3.c of the First Interim Final Rule, the lender does not need to independently verify the borrower's reported information if the borrower submits documentation supporting its request for loan forgiveness and attests that it accurately verified the payments for eligible costs.

In Part III.2.b., each reference to “SBA Form 3508EZ or lender's equivalent form” is replaced with “SBA Form 3508EZ, 3508S, or lender's equivalent form.”

In Part III.2.c., each reference to “SBA Form 3508, 3508EZ or lender's equivalent form” is replaced with “SBA Form 3508, 3508EZ, 3508S, or lender's equivalent form.”

In some cases, a borrower may submit to a lender documentation of eligible payroll and nonpayroll costs that exceed the amount of the borrower's PPP loan. To address this situation, the following text is added as a new paragraph d. at the end of Part III.2:

The amount of loan forgiveness that a borrower may receive cannot exceed the principal amount of the PPP loan. Whether a borrower submits SBA Form 3508, 3508EZ, 3508S, or lender's equivalent form, a lender should confirm receipt of the documentation the borrower is required to submit to aid in verifying payroll and nonpayroll costs, and, if applicable (for SBA Form 3508, 3508EZ, or lender's equivalent form), confirm the borrower's calculations on the borrower's Loan Forgiveness Application, up to the amount required to reach the requested Forgiveness Amount.

SBA may provide further guidance, if needed, through SBA notices that will be posted on SBA's website at www.sba.gov. Questions on the Paycheck Protection Program may be directed to the Lender Relations Specialist in the local SBA Field Office. The local SBA Field Office may be found at https://www.sba.gov/tools/local-assistance/districtoffices.

This interim final rule is economically significant for the purposes of Executive Orders 12866 and 13563, and is considered a major rule under the Congressional Review Act. SBA, however, is proceeding under the emergency provision at Executive Order 12866 Section 6(a)(3)(D) based on the need to move expeditiously to mitigate the current economic conditions arising from the COVID-19 emergency. This rule's designation under Executive Order 13771 will be informed by public comment.

SBA has drafted this rule, to the extent practicable, in accordance with the standards set forth in Section 3(a) and 3(b)(2) of Executive Order 12988, to minimize litigation, eliminate ambiguity, and reduce burden. The rule has no preemptive or retroactive effect.

SBA and Treasury have determined that this rule 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 layers of government. Therefore, SBA has determined that this rule has no federalism implications warranting preparation of a federalism assessment.

SBA and Treasury have determined that this rule modifies an existing information collection. This rule reduces the burden associated with lender review of borrower documentation of eligible costs for forgiveness. Additionally, SBA has developed a second streamlined Paycheck Protection Program—PPP Loan Forgiveness Application Form 3508S (SBA Form 3508S), which is available for borrowers meeting criteria described in the instructions accompanying the form. SBA has obtained Office of Management and Budget (OMB) approval of the modification to the existing information collection, which is currently approved as an emergency request under OMB Control Number 3245-0407 until October 31, 2020.

The Regulatory Flexibility Act (RFA) generally requires that when an agency issues a proposed rule, or a final rule pursuant to Section 553(b) of the APA or another law, the agency must prepare a regulatory flexibility analysis that meets the requirements of the RFA and publish such analysis in the Federal Register . 5 U.S.C. 603, 604. Specifically, the RFA normally requires agencies to describe the impact of a rulemaking on small entities by providing a regulatory impact analysis. Such analysis must address the consideration of regulatory options that would lessen the economic effect of the rule on small entities. The RFA defines a “small entity” as (1) a proprietary firm meeting the size standards of the Small Business Administration (SBA); (2) a nonprofit organization that is not dominant in its field; or (3) a small government jurisdiction with a population of less than 50,000. 5 U.S.C. 601(3)-(6). Except for small government jurisdictions with a population of less than 50,000, neither State nor local governments are “small entities.”

The requirement to conduct a regulatory impact analysis does not apply if the head of the agency “certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” 5 U.S.C. 605(b). The agency must, however, publish the certification in the Federal Register at the time of publication of the rule, “along with a statement providing the factual basis for such certification.” If the agency head has not waived the requirements for a regulatory flexibility analysis in accordance with the RFA's waiver provision, and no other RFA exception applies, the agency must prepare the regulatory flexibility analysis and publish it in the Federal Register at the time of promulgation or, if the rule is promulgated in response to an emergency that makes timely compliance impracticable, within 180 days of publication of the final rule. 5 U.S.C. 604(a), 608(b).

Rules that are exempt from notice and comment are also exempt from the RFA requirements, including conducting a regulatory flexibility analysis, when among other things the agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest. SBA Office of Advocacy guide: How to Comply with the Regulatory Flexibility Act, Ch.1. p.9. Since this rule is exempt from notice and comment, SBA is not required to conduct a regulatory flexibility analysis.

We are announcing the availability of a guidance for industry entitled “The Declaration of Allulose and Calories from Allulose on Nutrition and Supplement Facts Labels.” We are issuing this guidance consistent with our good guidance practices regulation (21 CFR 10.115). The guidance represents the current thinking of FDA on this topic. It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternate approach if it satisfies the requirements of the applicable statutes and regulations.

In the Federal Register of April 18, 2019 (84 FR 16272), we published a notice announcing the availability of a draft guidance for industry entitled “The Declaration of Allulose and Calories from Allulose on Nutrition and Supplement Facts Labels.” The draft guidance: (1) Described our tentative views on the declaration of allulose on Nutrition Facts and Supplement Facts labels and on the caloric content of allulose; and (2) announced our tentative intent to exercise enforcement discretion for the exclusion of allulose from the amount of Total Sugars and Added Sugars declared on the label and use of a general factor of 0.4 kcal/g for allulose when calculating declarations on Nutrition and Supplement Facts labels pending review of the issues in a rulemaking.

The draft guidance gave interested parties an opportunity to submit comments by June 17, 2019, for us to consider before beginning work on the final version of the guidance. We received approximately 30 comments from industry, health professionals, consumer advocacy groups, scientists, trade associations, and consumers. We are finalizing the positions in the draft guidance and have made technical corrections and editorial changes throughout the guidance to improve clarity. We also added language clarifying that allulose must still be declared in the ingredient statement even if it is excluded from certain label declarations. Finally, we reorganized the section detailing our consideration of allulose as a sugar.

The guidance announced in this notice finalizes the draft guidance with respect to: (1) Our views on the declaration of allulose on Nutrition Facts and Supplement Facts labels and on the caloric content of allulose; and (2) our intent to exercise enforcement discretion for the exclusion of allulose from the amount of Total Sugars and Added Sugars declared on the label and use of a general factor of 0.4 kcal/g for allulose when calculating declarations on Nutrition and Supplement Facts labels pending review of the issues in a rulemaking.

This guidance contains no collection of information. Therefore, clearance by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3521) is not required.

However, this guidance refers to previously approved FDA collections of information. These collections of information are subject to review by OMB under the PRA. The collections of information in 21 CFR part 101 have been approved under OMB control number 0910-0381.

Persons with access to the internet may obtain the guidance at either https://www.fda.gov/FoodGuidances or https://www.regulations.gov. Use the FDA website listed in the previous sentence to find the most current version of the guidance.

This document contains amendments to Income Tax Regulations (26 CFR part 1) under sections 67 and 642 of the Internal Revenue Code (Code). On May 11, 2020, the Department of Treasury (Treasury Department) and the IRS published a notice of proposed rulemaking (REG-113295-18) in the Federal Register (85 FR 27693) containing proposed regulations under sections 67 and 642(h) (proposed regulations). The Summary of Comments and Explanation of Revisions section of this preamble summarizes the provisions of sections 67 and 642(h) and the provisions of the proposed regulations, which are explained in greater detail in the preamble to the proposed regulations.

On July 17, 2020, the Treasury Department and the IRS published in the Federal Register (85 FR 43512) a notice of public hearing on the proposed regulations scheduled for August 12, 2020. The Treasury Department and the IRS received no requests to speak at a hearing in response to that notice. On August 5, 2020, the Treasury Department and the IRS published in the Federal Register (85 FR 47323) a cancellation of the notice of public hearing.

The Treasury Department and the IRS received written and electronic comments in response to the proposed regulations. All comments were considered and are available at www.regulations.gov or upon request. After full consideration of the comments received, this Treasury decision adopts the proposed regulations with modifications described in the Summary of Comments and Explanation of Revisions.

Most of the comments addressing the proposed regulations are summarized in this Summary of Comments and Explanation of Revisions. Comments merely summarizing or interpreting the proposed regulations or recommending statutory revisions are not discussed in this preamble. The Treasury Department and the IRS continue to study comments on issues related to sections 67 and 642(h) that are beyond the scope of these regulations, which may be discussed in future guidance if guidance on those issues is published. The scope of the proposed regulations and these regulations is limited to the effect of section 67(g) on the deductibility of certain expenses described in section 67(b) and (e) that are incurred by estates and non-grantor trusts and the treatment of excess deductions on termination of an estate or trust under section 642(h). This Summary of Comments and Explanation of Revisions also describes each of the final rules contained in this document.

Section 67(g) was added to the Code on December 22, 2017, by section 11045(a) of Public Law 115-97, 131 Stat. 2054, 2088 (2017), commonly referred to as the Tax Cuts and Jobs Act (TCJA). Section 67(g) prohibits individual taxpayers from claiming miscellaneous itemized deductions for any taxable year beginning after December 31, 2017, and before January 1, 2026. Prior to the TCJA, miscellaneous itemized deductions were allowable for any taxable year only to the extent that the sum of such deductions exceeded two percent of adjusted gross income. See section 67(a). Section 67(b) defines miscellaneous itemized deductions as itemized deductions other than those listed in section 67(b)(1) through (12).

Section 67(e) provides that, for purposes of section 67, an estate or trust computes its adjusted gross income in the same manner as that of an individual, except that the following additional deductions are treated as allowable in arriving at adjusted gross income: (1) The deductions for costs which are paid or incurred in connection with the administration of the estate or trust and which would not have been incurred if the property were not held in such estate or trust, and (2) deductions allowable under section 642(b) (concerning the personal exemption of an estate or non-grantor trust), section 651 (concerning the deduction for trusts distributing current income), and section 661 (concerning the deduction for estates and trusts accumulating income). Accordingly, section 67(e) removes the deductions described in section 67(e)(1) and (2) from the definition of itemized deductions under section 63(d), and thus from the definition of miscellaneous itemized deductions under section 67(b), and treats them as deductions allowable in arriving at adjusted gross income under section 62(a). Section 67(e) further provides regulatory authority to make appropriate adjustments in the application of part I of subchapter J of chapter 1 of the Code to take into account the provisions of section 67.

The proposed regulations under §  1.67-4 clarify that expenses described in section 67(e) remain deductible in determining the adjusted gross income of an estate or non-grantor trust during the taxable years in which section 67(g) applies. Accordingly, section 67(g) does not deny an estate or non-grantor trust (including the S portion of an electing small business trust) a deduction for expenses described in section 67(e)(1) and (2) because such deductions are allowable in arriving at adjusted gross income and are not miscellaneous itemized deductions under section 67(b). Commenters agreed with the proposed amendments. These regulations adopt the proposed regulations under §  1.67-4 without modification.

Two commenters requested that the regulations address the treatment of deductions described in section 67(e)(1) and (2) in determining an estate or non-grantor trust's income for alternative minimum tax (AMT) purposes. The commenters suggested that such deductions are allowable as deductible in computing the AMT. The treatment of deductions described in section 67(e) for purposes of determining the AMT is outside the scope of these regulations concerning the effects of section 67(g); therefore, these regulations do not address the AMT. Further, no conclusions should be drawn from the absence of a discussion of the AMT in these regulations regarding the treatment of deductions described in section 67(e) for purposes of determining the AMT.

One commenter suggested that the Treasury Department and the IRS exercise their regulatory authority under section 67(e) to exempt cemetery trusts under section 642(i) and qualified funeral trusts (QFTs) under section 685 from the application of section 67(g). The commenter stated that the primary type of expense incurred by these trusts is investment advisory expenses, the tax treatment of which differs under the Code from management expense. That is, trust management expenses generally are allowable in computing adjusted gross income under section 67(e)(1), while trust investment advisory expenses are miscellaneous itemized deductions. See §  1.67-4(b)(4). The commenter asserted that it was not the intent of Congress to disallow investment advisory expenses incurred by cemetery and funeral trusts when Congress enacted section 67(g).

The commenter suggested that exercising the regulatory authority under section 67(e) in this manner would be consistent with the exercise of regulatory authority under section 1411 to exempt section 642(i) cemetery perpetual care funds and QFTs. See §  1.1411-3(b)(1) (providing that certain types of trusts, including section 642(i) cemetery perpetual care funds, are excepted from the net investment income tax) and §  1.1411-3(b)(2) (providing a special rule for QFTs that, for purposes of calculating any tax under section 1411, section 1411 and the regulations thereunder are applied to each QFT by treating each beneficiary's interest in the trust as a separate trust). As stated in the preamble to TD 9644 (78 FR 72393), the Treasury Department and the IRS exercised their regulatory authority under section 1411 to exclude cemetery trusts from the net investment income tax because, by benefiting an operating company, such trusts are considered similar to the business trusts that are excluded from the operation of section 1411. The preamble also states that QFTs are not excluded from the application of the net income investment tax, but that the section 1411 tax is calculated consistent with the taxation of QFTs under chapter 1. The commenter noted that they advocated the treatment of each beneficiary's interest in the QFT as a separate trust because such treatment reduces the likelihood of the QFT beneficiaries being subject to the net investment income tax. The Treasury Department and the IRS continue to consider these comments but providing an exemption for cemetery and funeral trusts under section 67(g) is outside the scope of these regulations.

Section 642(h) provides that if, on the termination of an estate or trust, the estate or trust has: (1) A net operating loss carryover under section 172 or a capital loss carryover under section 1212, or (2) for the last taxable year of the estate or trust, deductions (other than the deductions allowed under section 642(b) (relating to the personal exemption) or section 642(c) (relating to charitable contributions)) in excess of gross income for such year, then such carryover or excess will be allowed as a deduction, in accordance with the regulations prescribed by the Secretary of the Treasury or his delegate (Secretary), to the beneficiaries succeeding to the property of the estate or trust.

Section 1.642(h)-2(a), as articulated in the proposed regulations and these final regulations, provides that if, on termination of an estate or trust, the estate or trust has for its last taxable year deductions (other than the deductions allowed under section 642(b) or section 642(c)) in excess of gross income, the excess deductions are allowed under section 642(h)(2) as items of deduction to the beneficiaries succeeding to the property of the terminated estate or trust.

Section 1.642(h)-2(b)(1) of the proposed regulations provides that each deduction comprising the excess deductions under section 642(h)(2) retains, in the hands of the beneficiary, its character (specifically, as allowable in arriving at adjusted gross income, as a non-miscellaneous itemized deduction, or as a miscellaneous itemized deduction) while in the estate or trust. The character of these deductions does not change when succeeded to by a beneficiary on termination of the estate or trust. Furthermore, an item of deduction succeeded to by a beneficiary remains subject to any limitation applicable under the Code in the computation of the beneficiary's tax liability.

One commenter noted that section 642(h) states that excess deductions on termination of an estate or trust are to be “allowed as a deduction, in accordance with regulations prescribed by the Secretary” and that there is no express authority to treat excess deductions as miscellaneous or non-miscellaneous itemized deductions (or tax preference items for AMT purposes). The Treasury Department and the IRS disagree with this comment. The characterization of these excess deductions as a single miscellaneous itemized deduction in the current regulations was made before the enactment of section 67(g) and served as an administrative convenience. Making a change to that characterization is now appropriate to reflect the temporary disallowance of miscellaneous itemized deductions under section 67(g) since the regulations were written and is a proper exercise of the Secretary's specific grant of regulatory authority in section 642(h).

Another commenter requested that non-miscellaneous itemized deductions included in excess deductions be fully deductible by the beneficiary and not subject to a second level of limitation applicable on the beneficiary's return, because the amounts already would have been subject to limitation on the return of the estate or trust. The commenter provided an example of a terminated trust that paid $25,000 of state income tax, for which the trust is limited to a $10,000 deduction under section 164(b)(6)(B) for taxable years beginning after December 31, 2017, and before January 1, 2026. In the commenter's example, the entire amount of the allowable $10,000 deduction was passed through to the beneficiary as an excess deduction on termination of the trust. The excess of state income tax over the $10,000 limitation ($15,000) would not pass through as an excess deduction to the beneficiaries in this circumstance because the excess amount was not deductible to the trust. Excess state income tax on termination of the estate or trust may, however, pass through to a beneficiary if the estate or trust had insufficient income to absorb the entire $10,000 of state income tax deduction. In that circumstance, the commenter opined that the limitation under section 164(b)(6)(B), having already been applied at the trust level, should not again be applied at the beneficiary level. The Treasury Department and the IRS carefully considered the comment but determined that beneficiaries remain subject to the limitation in section 164(b)(6)(B). The Treasury Department and the IRS found no authority to exempt such items from the application of any limitations applicable to the beneficiary under the Code. The excess deductions retain their character in the hands of the beneficiary on termination of the trust, and all applicable limitations apply to all of the beneficiary's items of that character, regardless of their origin.

One commenter noted that, under §  1.641(c)-1(j), if an electing small business trust (ESBT) election terminates or is revoked and the S portion has a net operating loss or capital loss carryover or deductions in excess of gross income, then any such loss, carryover or excess deductions are allowed as a deduction, in accordance with the regulations under section 642(h), to the trust or to the beneficiaries succeeding to the property of the trust if the entire trust terminates. However, the commenter also noted that under the TCJA, section 641(c)(2)(E) was amended to provide that ESBT charitable contributions are deductible under section 170, rather than under section 642(c), so that, unlike other trust charitable deductions, an ESBT's charitable deduction could constitute part of the excess deductions on termination of the trust. The commenter stated that neither the legislative history nor the explanation of the staff of the Joint Committee on Taxation addressed whether this result was intended. The Treasury Department and the IRS note that charitable contribution deductions under both sections 170 and 642(c) are non-miscellaneous itemized deductions under sections 63(d) and 67(b)(4) to the estate or trust and maintain that such character is retained in the hands of the beneficiary in these regulations. Although the Treasury Department and the IRS continue to consider the application of section 170 to ESBT charitable contributions under section 641(c)(2)(E), this issue is outside the scope of these regulations.

Another commenter requested clarification of whether an excess deduction on termination of a trust or estate that is allowed in determining the net investment income under section 1411 of the estate or trust remains deductible in the hands of the beneficiary in determining the net investment income of the beneficiary under section 1411. These final regulations provide that each excess deduction retains its separate character as a section 67(e) deduction, non-miscellaneous itemized deduction, or miscellaneous itemized deduction in the hands of the beneficiary. Whether a deduction retains its character as allowable in computing the net investment income of the beneficiary, however, is outside the scope of these regulations.

Section 1.642(h)-2(b)(1) of the proposed regulations provides that an item of deduction succeeded to by a beneficiary remains subject to any additional applicable limitation under the Code and must be separately stated if it could be so limited, as provided in the instructions to Form 1041, U.S. Income Tax Return for Estates and Trusts, and the Schedule K-1 (Form 1041), Beneficiary's Share of Income, Deductions, Credit, etc. Commenters requested that the Treasury Department and the IRS provide guidance on how the excess deductions are to be reported by both the terminated estate or trust and by its beneficiaries. The Treasury Department and the IRS released instructions for beneficiaries that chose to claim excess deductions on Form 1040 in the 2019 or 2018 taxable year based on the proposed regulations. In addition, the Treasury Department and the IRS plan to update the instructions for Form 1041, Schedule K-1 (Form 1041), and Form 1040, U.S. Individual Income Tax Return, for the 2020 and subsequent tax years to provide for the reporting of excess deductions that are section 67(e) expenses or non-miscellaneous itemized deductions.

The Treasury Department and the IRS are aware that the income tax laws of some U.S. states do not conform to the Code with respect to section 67(g), such that beneficiaries may need information on miscellaneous itemized deductions of a terminated estate or trust. However, because miscellaneous itemized deductions are currently not allowed for Federal income tax purposes, that information is not needed for Federal income tax purposes. Therefore, it would not be appropriate to modify Federal income tax forms to require or accommodate the collection of such information while this deduction is suspended. Estates, trusts, and beneficiaries are advised to consult the relevant state taxing authority for information about deducting miscellaneous itemized expenses on their state tax returns.

Section 1.642(h)-2(b)(2) of the proposed regulations provides that the provisions of §  1.652(b)-3 are used to allocate each item of deduction among the classes of income in the year of termination for purposes of determining the character and amount of the excess deductions under section 642(h)(2). Accordingly, the amount of each separate deduction remaining after application of §  1.652(b)-3 comprises the excess deductions available to the beneficiaries succeeding to the property of the estate or trust as provided under section 642(h)(2). In addition, as previously explained, an item of deduction succeeded to by a beneficiary remains subject to any additional applicable limitation under the Code. Furthermore, §  1.642(h)-2(c) of the proposed regulations provides that excess deductions are allowable only in the taxable year of the beneficiary in which or with which the estate or trust terminates. That is, excess deductions of a terminated estate or trust may not carry over to a subsequent year of the beneficiary.

One commenter requested that these regulations provide an ordering rule clarifying whether excess deductions on termination of a trust allowed as a deduction to the beneficiary are claimed before, after, or ratably with the beneficiary's other deductions, particularly when the amount of the excess deductions and other deductions exceed the beneficiary's gross income. These final regulations clarify that beneficiaries may claim all or part of the excess deductions under section 642(h)(2) before, after, or together with the same character of deductions separately allowable to the beneficiary under the Code.

That commenter also requested that the final regulations include an exception for investment interest expense under section 163(d) from the general rule that excess deductions on termination of a trust or estate may be claimed only in the beneficiary's taxable year during which the trust or estate terminated. That section permits the carryforward of investment interest under section 163(d)(2) to the taxpayer's subsequent taxable years if the taxpayer is unable to deduct the investment interest in the current taxable year. The commenter stated that the disallowance of the carryover of section 642(h)(2) excess deductions should not apply to those excess deductions that are no longer treated as miscellaneous itemized deductions under the proposed regulations, and that carryover should be permitted to the extent otherwise permitted under the Code. The preamble to the proposed regulations states that addressing suspended deductions under section 163(d) is beyond the scope of the regulations and the same is true of these final regulations.

A commenter requested that the amount of a beneficiary's net operating loss carryover to a later taxable year under section 172 should include all of the beneficiary's section 642(h)(2) excess deductions that are section 67(e) deductions, as deductions that are attributable to the beneficiary's trade or business and thus deductions attributable to a trade or business under section 172(d)(4). Section 642(h) makes it clear that a net operating loss carryover under paragraph (1) of that section is separate and distinct from the excess deductions on termination described in paragraph (2) of that section. Furthermore, §  1.642(h)-2(d) provides that a deduction based upon a net operating loss carryover generally will not be allowed to beneficiaries under both paragraphs (1) and (2) of section 642(h). Therefore, an excess deduction allowable to the beneficiary under section 642(h)(2) is not a net operating loss carryover succeeded to by the beneficiary under section 642(h)(1) and (with one exception) a net operating loss carryover is not an excess deduction on termination. Moreover, these regulations provide that it is the character of the excess deductions as section 67(e) deductions, non-miscellaneous itemized deductions, and miscellaneous itemized deductions, and not the character of a deduction as attributable to a trade or business, that is retained in the hands of the beneficiary. Thus, whether section 642(h)(2) excess deductions that are section 67(e) deductions may be included in a beneficiary's net operating loss carryovers under section 172, separate from those it succeeds to from a terminated estate or trust, is beyond the scope of these regulations. Because §  1.642(h)-2(a) is clear that excess deductions on termination of an estate or trust are not carried over to future years and that such deductions are separate from a net operating loss carryover from the estate or trust, the Treasury Department and the IRS do not adopt this comment.

Section 1.642(h)-5(a), Example 1, of the proposed regulations ( Example 1 ) updates an existing example illustrating computations under section 642(h) when there is a net operating loss. Section 1.642-5(a)(2)(ii) of Example 1 explains that the beneficiaries of the trust cannot carry back any of the net operating loss of the terminating estate that was made available to them under section 642(h)(1).

Two commenters requested that Example 1 be revised to take into account the amendments to section 172(b)(1)(D) under sec. 2302(b) of the Coronavirus Aid, Relief, and Economic Security Act, Public Law 116-136, 134 Stat. 281 (2020) (CARES Act), by allowing a beneficiary to carry back the net operating loss carryover the beneficiary succeeds to under section 642(h)(1) for net operating losses arising in taxable years beginning after December 31, 2017, and before January 1, 2021. Under section 2303 of the CARES Act, net operating losses arising in taxable years beginning after December 31, 2017, and before January 1, 2021, generally may be carried back five years before being carried forward. One of these commenters further requested confirmation that a beneficiary is allowed a carryback of the net operating loss under section 642(h)(1) for net operating losses of an estate or trust arising in taxable years ending before January 1, 2018, to the extent the beneficiary succeeds to a net operating loss carryover attributable to those net operating losses on a termination of the estate or trust between January 1, 2018, and December 31, 2020.

Unless otherwise provided under the Code, a net operating loss incurred by a taxpayer may only be used as a deduction by that taxpayer and cannot be transferred to another taxpayer for use by that other taxpayer. Calvin v. U.S. 354 F.2d 202 (10th Cir. 1965), Mellott v. U.S., 257 F.2d 798 (3d Cir. 1958). As an exception to this general principle, section 642(h) provides that if, on termination of an estate or trust, the estate or trust has a net operating loss carryover under section 172, then such carryover is allowed as a deduction, in accordance with the regulations prescribed by the Secretary, to the beneficiaries succeeding to the property of the estate or trust. Section 1.642(h)-1(a) provides that if, on the termination of an estate or trust, a net operating loss carryover under section 172 would be allowable to the estate or trust in a taxable year subsequent to the taxable year of termination but for the termination, a carryover is allowed under section 642(h)(1) to the beneficiaries succeeding to the property of the estate or trust. In addition, §  1.642(h)-1(b) provides that the first taxable year of the beneficiary to which the net operating loss will be carried over is the taxable year of the beneficiary in which or with which the estate or trust terminates.

Section 642(h)(1) provides a specific rule that allows the beneficiary to succeed to a net operating loss carryover of the estate or trust and deduct the amount of the net operating loss over the remaining carryover period that would have been allowable to the estate or trust but for the termination of the estate or trust. The phrase in section 642(h)(1) “the estate or trust has a net operating loss carryover' ” means that the estate or trust incurred a net operating loss and either already carried it back to the earliest allowable year under section 172 or elected to waive the carryback period under section 172(b)(3), and now is limited to carrying over the remaining net operating loss. Accordingly, because the net operating loss is a carryover for the estate or trust, the beneficiary succeeding to that net operating loss may, under section 642(h)(1), only carry it forward.

The CARES Act amendments to section 172(b) mentioned by the commenters allow taxpayers a five-year carryback of certain net operating losses incurred by that taxpayer. The CARES Act amendments do not change the result that a beneficiary succeeding to the net operating loss carryover of a terminated estate or trust may only carryover that net operating loss in the same manner as the terminated estate or trust, but for the termination. Consequently, the Treasury Department and the IRS do not adopt these comments and add a citation to §  1.642(h)-1 to reference the rule that a beneficiary that succeeds to a net operating loss carryover of a terminated estate or trust may only carry forward the net operating loss.

Section §  1.642(h)-5(b), Example 2, of the proposed regulations ( Example 2 ) demonstrates computations under section 642(h)(2). The expenses in Example 2 include rental real estate taxes in an attempt to illustrate a deduction subject to limitation under section 164(b)(6) to the beneficiary that must be separately stated as provided in §  1.642(h)-2(b)(1).

Multiple commenters noted that Example 2 raises several issues that could be potentially relevant to that example, such as whether the decedent was in a trade or business and the application of section 469 to estates and trusts. To avoid these issues, which are extraneous to the point being illustrated, one commenter suggested that the example be revised so that the entire amount of real estate expenses on rental property equals the amount of rental income. The Treasury Department and the IRS did not intend to raise such issues in the example and consider both issues to be outside the scope of these regulations. Accordingly, the Treasury Department and the IRS adopt the suggestion by the commenter and modify Example 2 to avoid these issues by having rental real estate expenses entirely offset rental income with no unused deduction.

Commenters also noted that Example 2 does not properly allocate rental real estate expenses because the example characterizes the rental real estate taxes as itemized deductions. These commenters asserted that real estate taxes on property held for the production of rental income are not itemized deductions but instead are allowed in computing gross income and cited to section 62(a)(4) as providing that ordinary and necessary expenses paid or incurred during the taxable year for the management, conservation, or maintenance of property held for the production of income under section 212(2) that are attributable to property held for the production of rents are deductible as above-the-line deductions in arriving at adjusted gross income. One commenter suggested that, if the goal of Example 2 is to illustrate state and local taxes passing through to the beneficiary, then the example should include state income taxes rather than real estate taxes on rental real estate. The Treasury Department and the IRS have revised this example in the final regulations to include personal property tax paid by the trust rather than taxes attributable to rental real estate.

Lastly, commenters noted that Example 2 does not demonstrate the broad range of trustee discretion in §  1.652(b)-3(b) and (d) for deductions that are not directly attributable to a class of income, or deductions that are, but which exceed such class of income, respectively. In response to these comments, the Treasury Department and the IRS have modified Example 2 to illustrate the application of trustee discretion as found in §  1.652(b)-3(b) and (d).

The proposed regulations provide that the changes to §§  1.67-4, 1.642(h)-2, and 1.642(h)-5 apply to taxable years beginning after the date the regulations are published as final. The preamble to the proposed regulations explains that estates, non-grantor trusts, and their beneficiaries may rely on the proposed regulations under section 67 for taxable years beginning after December 31, 2017, and on or before the date these regulations are published as final. Taxpayers may also rely on the proposed regulations under section 642(h) for taxable years of beneficiaries beginning after December 31, 2017, and on or before the date the regulations are published as final, in which an estate or trust terminates.

One commenter requested that §  1.642(h)-2 of the proposed regulations be applied retroactively not only to taxable years beginning after December 31, 2017, but to all open years. The commenter asserted that the existing regulation treating excess deductions on termination of an estate as a miscellaneous itemized deduction was in error. As an example, the commenter argues that the current regulations mistakenly describe section 67(e) expenses as an exception to the rules applicable to miscellaneous itemized deductions, and therefore requested that the final regulations be applicable to all open years. The Treasury Department and the IRS have the authority to treat an excess deduction on termination of an estate or trust as a single miscellaneous itemized deduction. See section 642(h). The suspension under section 67(g) of miscellaneous itemized deductions caused the Treasury Department and the IRS to reconsider the treatment of excess deductions under section 642(h)(2) because the Treasury Department and the IRS do not interpret section 67(g) as suspending such deductions allowable under section 642(h)(2). The Treasury Department and the IRS interpret section 67(g) as not disallowing excess deductions succeeded to beneficiaries from terminated estates and trusts under section 642(h)(2). Therefore, taxpayers may rely on these regulations as of the effective date of section 67(g), but not for earlier periods.

The final regulations apply to taxable years beginning after October 19, 2020. Pursuant to section 7805(b)(7), taxpayers may choose to apply the amendments to §  1.67-4 and §§  1.642(h)-2 and 1.642(h)-5 set forth in this Treasury decision to taxable years beginning after December 31, 2017, and on or before October 19, 2020.

These regulations are not subject to review under section 6(b) of Executive Order 12866 pursuant to the Memorandum of Agreement (April 11, 2018) between the Treasury Department and the Office of Management and Budget regarding review of tax regulations. Therefore, a regulatory impact assessment is not required.

Pursuant to the Regulatory Flexibility Act (5 U.S.C. chapter 6), it is hereby certified that these regulations will not have a significant economic impact on a substantial number of small entities. This certification is based on the fact that the amount of time necessary to report the required information will be minimal in that it requires fiduciaries of estates and trusts to provide on the Schedule K-1 (Form 1041) issued to beneficiaries information that is already maintained and reported to the IRS on Form 1041. Moreover, it should take an estate or trust no more than 2 hours to satisfy the information requirement in these regulations. Accordingly, the Secretary certifies that the rule will not have a significant economic impact on a substantial number of small entities.

Pursuant to section 7805(f) of the Code, the notice of proposed rulemaking that preceded these regulations was submitted to the Chief Counsel for the Office of Advocacy of the Small Business Administration for comment on its impact on small businesses, and no comments were received.

The collection of information related to these regulations under section 642(h) is reported on Schedule K-1 (Form 1041), Beneficiary's Share of Income, Deductions, Credits, etc., and has been reviewed in accordance with the Paperwork Reduction Act (44 U.S.C. 3507) and approved by the Office of Management and Budget under control number 1545-0092.

The collection of information in these regulations is in §  1.642(h)-2(b)(1). The IRS requires this information to ensure that excess deductions on an estate's or trust's termination that are subject to additional applicable limitations retain their character when taken into account by beneficiaries on their returns. The respondents will be estates, trusts, and their fiduciaries.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by the Office of Management and Budget. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by section 6103.

The principal author of these regulations is Margaret Burow of the Office of Associate Chief Counsel (Passthroughs and Special Industries). Other personnel from the Treasury Department and the IRS, however, participated in their development.

Accordingly, 26 CFR part 1 is amended as follows:

In this document, the Bureau adds a new prohibited act code, 231, to Table 1—Prohibited Acts and Available Sanctions in the inmate discipline regulations at 28 CFR 541.3, which will clarify that inmates may be disciplined for pressuring or otherwise intimidating other inmates into producing copies of their own legal documents, such as pre-sentence reports (PSRs), statement of reasons (SORs), or other such documents.

The Bureau has found that inmates, or inmate groups, frequently pressure other inmates for copies of their PSRs, SORs, or other similar sentencing documents from criminal judgments, to learn if they are informants, gang members, have financial resources, to find others involved in offenses, to prove affiliations, etc. Some inmates who produced, or refused to produce, the documents were threatened, assaulted, and/or sought protective custody, all of which jeopardized the Bureau's ability to safely manage its institutions. The problem of threats and assaults on inmates arising from possession of an inmate's presentence investigative reports, statements of reasons, or other similar sentencing documents from criminal judgments has been acknowledged by the Administrative Office of U.S. Courts and in case law. See, e.g., United States v. Antonelli, 371 F.3d 360, 361 (7th Cir. 2004); Harrison v. Lappin, 510 F.Supp.2d 153 (DC Cir. 2007); Delgado v. Bureau of Prisons, 2007 WL 2471573 (E.D.Tex.); Martinez v. Bureau of Prisons, 444 F.3d 620, 370 U.S.App.D.C. 275 (DC Cir. 2006); Sample v. Watts, 100 Fed.Appx. 317, 2004 WL 1255359 (C.A.5 (Tex.).

The Bureau of Prisons (Bureau) published a proposed rule on this subject on November 19, 2019 (84 FR 63830). The comment period closed on January 21, 2020. We received fifteen comments during the comment period. While several were in support of the general premise of the proposed rule, commenters raised similar concerns and questions in their comments, which we address below.

The rule limits inmates' right to meaningful access to courts. Fourteen of the fifteen commenters raised a version of this issue: The prohibited act code, as proposed, appears to curtail the ability of inmates to assist other inmates with preparation of legal documents, as allowed by 28 CFR part 543, specifically §§ 543.10 and 543.11.

As we stated in the proposed rule, the Bureau has found that inmates, or inmate groups, pressure other inmates for copies of their PSRs, SORs, or other similar sentencing documents from criminal judgments, to learn if they are informants, gang members, have financial resources, or to learn of others involved in the offense, etc. Some inmates who produced, or refused to produce, the documents were threatened, assaulted, and/or sought protective custody, all of which jeopardized the Bureau's ability to effectively and safely manage its institutions. The defense bar, federal sentencing courts, and the Bureau identified this issue as one of concern that required attention/action.

In Dept. of Justice v. Julian, 486 U.S. 1 (1988), the U.S. Supreme Court decided the government was obligated to provide inmates access to their own pre-sentence investigation reports under the Freedom of Information Act (FOIA). By continuing to provide inmates reasonable access to review their PSRs, SORs, or other similar sentencing documents from criminal judgments at the facilities at which they are located, the Bureau's obligation under the FOIA is satisfied. The Julian decision did not mandate that inmates be permitted to obtain and possess copies of these documents contrary to legitimate penological interests, i.e., the safety and security of Bureau institutions, inmates, staff, and the public.

The Bureau's regulation in volume 28 of the Code of Federal Regulations, section 543.10, indicates that the Bureau affords inmates “reasonable access to legal materials” in order to prepare legal documents. Section 543.11(d)(1) authorizes inmates to receive legal materials from outside the institution, including the inmate's “pleadings and documents (such as a pre-sentence report) that have been filed in court or with another judicial or administrative body, drafts of pleadings to be submitted by the inmate to a court or with other judicial or administrative body which contain the inmate's name and/or case caption prominently displayed on the first page, documents pertaining to an inmate's administrative case.” Subparagraph (d)(2) further allows inmates to “possess those legal materials which are necessary for the inmate's own legal actions. Staff may also allow an inmate to possess the legal materials of another inmate subject to the limitations of paragraph (f)(2) of this section.”

Notably, however, commenters do not mention the limitations of § 543.11(f)(2) in existence prior to the proposed rule, which provide that an assisting inmate may possess another inmate's legal materials, while assisting the other inmate, in the institution's main law library or in other locations designated by the Warden, but may not remove another inmate's legal materials, including copies, from the designated location. The new prohibited act does not alter or curtail the ability of an assisting inmate to view another inmate's legal materials for the purposes of assisting that inmate in an authorized location.

Additionally, under § 543.11(f)(2)(i), an assisting inmate is also permitted to make handwritten notes and drafts of pleadings, and even to remove those notes from the authorized location, as long as the notes do not contain a case caption, document title, or the name of any inmate.

Finally, § 543.11(f)(4) indicates that limitations on inmate assistance to other inmates may be imposed in the interest of institution security, good order, or discipline. This rulemaking is a practical limitation for reasons of security on the scope of inmate assistance to other inmates. While this rule does not prohibit such inmate assistance, inmates may find that firmer adherence to the letter of the regulations has become necessary due to greater attention to incidences of inmate harassment and intimidation.

However, because commenters found the language of the prohibited act code to be unclear and overbroad, the Bureau now alters code 231 as set forth in the rule to provide that the conduct to be prohibited is, in fact, unauthorized conduct, not the authorized inmate assistance rendered by one inmate to another inmate in a location authorized by the Warden and performed as required in 28 CFR part 542.

Staff awareness and/or abuses of the prohibited act code sanctions. Two commenters asked how staff would be made aware of prohibited act conduct and what action they would take upon being made aware of it. Another was concerned that staff would take “discipline as physical punishment” and warned that “it must be made very clear to any guard or authority figure in a prison what kind of discipline the inmate is to receive as well as clear justification for it.” Three more commenters expressed concerns regarding the potential for staff to impose immediate and direct discipline for perceived violations of this prohibited act code.

To respond to these concerns, we first suggest to these and any other inmates with grievances relating to staff abuse to locate appropriate staff members or medical professionals in their facilities and report such behavior, and also to make use of the Administrative Remedy Procedures process in 28 CFR part 542. Inmates may electronically send requests to different departments within the institution and use the Request to Staff service to report misconduct directly to the Office of Inspector General (OIG). These emails are anonymous and not retained or traceable in the inmate email system.

However, the Bureau is committed to ensuring the safety and security of all inmates in our population, our staff, and the public. Staff are trained and expected to conduct themselves professionally, including the humane and courteous treatment of those in our custody. Bureau staff are trained to stay mindful of the agency's core values of correctional excellence, respect and integrity. At the outset of their employment, staff are instructed that they must adhere to the principles of ethical conduct in the Basic Obligations of Public Service at 5 CFR 2635.101; Standards of Ethical Conduct for Employees of the Executive Branch at 5 CFR part 2635; the Department of Justice's Supplemental Ethics Regulations at 5 CFR part 3801; the criminal conflict of interest statutes at 18 U.S.C. 201, 202, 203, 205, 207, 208, and 209; and the Bureau of Prisons Standards of Employee Conduct in Bureau of Prisons Program Statement 3420.11. The Bureau of Prisons provides ethics training to all new employees both when they begin employment and annually thereafter.

Secondly, before any sanctions may be imposed for violation of prohibited acts, current regulations in 28 CFR part 541 describe the required process which must be undertaken, including the following:

• Issuing an incident report to the inmate describing the prohibited act the inmate is charged with, ordinarily within 24 hours of becoming aware of the inmate's involvement in the prohibited act conduct;

• Investigating the incident reported;

• Informing the inmate of the charges against him/her and of his/her rights during the process;

• Taking an inmate statement of explanation of the incident, including requests for witnesses or other evidence; and

• Referring the incident report to the Disciplinary Hearing Officer (DHO) for a hearing.

When an incident report is referred to a DHO for a hearing, Bureau regulations explain that inmates again receive written notice of the charges against them at least 24 hours prior to the hearing unless they waive that requirement, and are entitled to a staff representative, to make a statement and present evidence on their own behalf, and to present witnesses with relevant information.

After the DHO hearing, inmates will receive a written copy of the DHO's decision which must document whether the inmate was advised of his/her rights during the DHO process, what evidence the DHO relied on to make the decision reached, what decision was reached, that sanction was imposed, and the reasons for the sanctions imposed. The inmate is also advised that he/she may appeal the DHO's action through the Administrative Remedy Program (28 CFR part 542, subpart B).

This process provides multiple checks and balances to deter or prevent staff abuse by allowing inmates several opportunities to speak on their own behalf or present evidence and witnesses. Staff must also carefully document their observation of prohibited acts and cannot immediately or directly impose sanctions upon inmates, but must instead refer incident reports to DHOs for hearings, in the case of 200-level prohibited acts, before sanctions may be imposed.

Sanctions. Eight commenters asked for more detail regarding the possible sanctions that might be imposed for violation of the prohibited act code. The sanctions can be found in current regulations at 28 CFR part 541. However, we summarize them below.

The rule adds a new prohibited act code 231, which is in the High Severity Level Offenses category. If an inmate is found to have committed a prohibited act after a properly conducted DHO hearing the DHO may impose a sanction as listed in 28 CFR 541.3(b), Table 1, Prohibited Acts and Available Sanctions. Therefore, for violation of new prohibited act code 231, a code in the High Severity Level category, a DHO may:

• Recommend parole date rescission or retardation;

• Forfeit and/or withhold earned statutory good time or non-vested good conduct time up to 50% or up to 60 days, whichever is less, and/or terminate or disallow extra good time (an extra good time or good conduct time sanction may not be suspended);

• Disallow ordinarily between 25% and 50% (14-27 days) of good conduct time credit available for year (a good conduct time sanction may not be suspended);

• Impose disciplinary segregation (up to 6 months);

• Require monetary restitution;

• Impose a monetary fine;

• Revoke privileges ( e.g., visiting, telephone, commissary, movies, recreation);

• Require a change in housing (quarters);

• Remove an inmate from a program, job and/or group activity; impound an inmate's personal property,

• Confiscate contraband,

• Restrict an inmate to quarters; or

• Impose extra duty.

This prohibited act code should be moved to a greater severity level. Commenters suggested that the prohibited conduct described by this rule was sufficiently egregious to warrant upgrading its severity level and therefore upgrading the severity of potential sanctions that may be imposed for violation. Several current or former inmates commented regarding “organized gangs and other predatory groups who formally assign members to vet individuals” and “use information for financial extortion for protection,” indicating that the proposed severity level would “have little impact and minimal deterrence” on this conduct.

While the Bureau appreciates the position of these commenters, the severity level determination was chosen based on the nature of the offense conduct. In this case, the new prohibited act code includes “requesting, demanding, pressuring, or otherwise intentionally creating a situation” causing an inmate to produce documents for any unauthorized purpose to another inmate. The Greatest Severity Level category includes prohibited acts such as escape, killing, arson, etc., which are generally considered more threatening to institution safety, security and good order than actions including “requesting, demanding, pressuring” or “creating a situation” causing production of documents for unauthorized purposes. While the activity contemplated is clearly enough of an issue to warrant the creation of a High Severity Prohibited Act, in the correctional expertise of the Bureau of Prisons, it does not rise to the level necessary for inclusion in the Greatest Severity Level Category.

The intent of the severity scale at its inception was to “ensure a greater consistency of use of discipline throughout the Federal Prison System” and alleviate prior “concern that the disciplinary system allowed for a variety of interpretation on the degree of severity of the prohibited act and on sanctions that could be imposed.” ( See 44 FR 23174, April 18, 1979.) In a later final rule in 1982, the Bureau reflected that the inmate disciplinary procedures are “not intended to be either a judicial process or to have the wide gradations of offenses and punishments available to the judiciary” but instead that the “purpose of the disciplinary process is to help inmates live in a safe and orderly environment.” ( See 47 FR 35920, August 17, 1982.) Therefore, the guiding factor when determining the severity levels of prohibited act codes has been “the impact on institution security and good order.”

In determining the severity level of the new prohibited act code 231, the Bureau compared the impact of the prohibited conduct upon the safety, security and good order of the facility with that which might be generated from violation of codes in each Severity Level category, and determined that it would fit best in the High Severity Level offenses category in terms of seriousness of the offense and threat generated.

Prohibited documents should include institutional disciplinary history, and prohibited conduct should include accessing law library resources or community resources to find information regarding other inmates. For similar reasons, these commenters also suggested that the code conduct be expanded from possession of inmate court documents to inmate conduct violation (institution disciplinary) history as well, and suggested that if inmates have need to see their paperwork for legal representation purposes that the paperwork be sent directly from court systems to Wardens, who should permit inmate viewing, but not possession. Inmate commenters also strongly recommended either disallowing or disciplining inmate access to court documents of fellow inmates via the inmate law library or community channels, and which they noted has been a way for some inmates to discover conviction information about fellow inmates.

The Bureau must balance the inmate's ability to prepare, review, and analyze his/her own case and access courts against the security concerns sought to be managed by this regulation. In conducting this balance, the Bureau finds it necessary to permit inmates to retain the ability to access the inmate law library to satisfy the inmate's need to prepare his/her case and access courts. With regard to prohibiting inmate access to documents received through community channels, the Bureau's regulations regarding incoming publications (28 CFR part 540, subpart F), correspondence (Subpart B), visiting (Subpart D), and telephone (Subpart I), address these issues and the Bureau continues to adhere to these regulations.

The Bureau holds inmates accountable for threatening and coercive behavior under existing provisions of the disciplinary code. New prohibited act code 231, however, will clarify that this specific behavior may result in sanctions. The defense bar, federal sentencing courts and the Bureau identified this issue as one of concern that requires heightened disciplinary attention. We therefore add the aforementioned code provision, with the aforementioned changes to the proposed rule published on November 19, 2019 (84 FR 63830), to underscore the severity of the conduct described.

This rule falls within a category of actions that the Office of Management and Budget (OMB) has determined do not constitute “significant regulatory actions” under section 3(f) of Executive Order 12866 and, accordingly, it was not reviewed by OMB. The economic effects of this regulation are limited to the Bureau's appropriated funds. It takes an average of 7.5 hours of staff time to process an incident report. One of the expected outcomes of this clarifying regulation is that inmates may be deterred from engaging in the prohibited behavior because violations are better defined. This expected outcome would save staff resources required to process incident reports. At this time, however, the Bureau cannot estimate precisely how many incidents will be avoided or the monetary value of the resulting cost/resource savings. Further, the Bureau would expect any anticipated savings generated by this rule to have minimal effect on the economy.

This regulation will not have substantial direct effect on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. Under Executive Order 13132, we determine that this regulation does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

The Director of the Bureau of Prisons, under the Regulatory Flexibility Act (5 U.S.C. 605(b)), reviewed this regulation and certifies that it will not have a significant economic impact upon a substantial number of small entities. This regulation pertains to the correctional management of offenders committed to the custody of the Attorney General or the Director of the Bureau of Prisons, and its economic impact is limited to the Bureau's appropriated funds.

This regulation will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions are necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This regulation is not a major rule as defined by the Congressional Review Act, 5 U.S.C. 804. This regulation will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

Under rulemaking authority vested in the Attorney General in 5 U.S.C. 301; 28 U.S.C. 509, 510 and delegated to the Director, Bureau of Prisons, we amend 28 CFR part 541 as follows.

This is a rule of Agency procedure and practice. The provisions only apply to the EPA and do not regulate any external entities.

After considering the public comments received on the proposal, the EPA is finalizing procedures that the Agency will use to issue guidance documents as defined in this regulation. These new procedures satisfy the requirements of Executive Order (E.O.) 13891, “Promoting the Rule of Law Through Improved Agency Guidance Documents” (84 FR 55237, October 15, 2019), which directs Federal agencies to develop regulations to set forth processes and procedures for issuing guidance documents.

Specifically, consistent with the E.O., this regulation provides that the EPA will use an online portal (the EPA Guidance Portal) to identify EPA guidance documents for the public and will establish: Definitions of “guidance document,” “significant guidance document,” and other key terms; standard elements for all guidance documents; additional requirements for significant guidance documents; procedures for the EPA to enable the public to comment on draft significant guidance documents; and procedures for the public to petition the Agency for modification or withdrawal of guidance documents.

In this final rule, the EPA has revised some of the proposed requirements in response to public comments. Most notably, the EPA is adding the opportunity for the public to petition the Agency to reinstate guidance documents that were rescinded. In addition, the EPA will make information publicly available regarding petitions received pursuant to the petition procedures. To provide additional clarity, the final regulatory text includes new definitions of “active guidance document” and “rescinded guidance document.” Other minor edits to the regulatory text are also being finalized to increase clarity.

The EPA is authorized to promulgate this rule under its housekeeping authority. The Federal Housekeeping Statute provides that “[t]he head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property.” 5 U.S.C. 301. The EPA gained housekeeping authority through the Reorganization Plan No. 3 of 1970, 84 Stat. 2086 (July 9, 1970), which “convey[s] to the [EPA] Administrator all of the housekeeping authority available to other department heads under section 301” and demonstrates that “Congress has vested the Administrator with the authority to run EPA, to exercise its functions, and to issue regulations incidental to the performance of those functions.”  1

Consistent with the proposal, the EPA considers this action a rule of agency organization, procedure, or practice that lacks the force and effect of law. The EPA determined, as a matter of good government, to seek comment from the public. The Administrative Procedure Act (APA), 5 U.S.C. 553(b)(3)(A), provides that an agency may issue interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice without providing notice and an opportunity for public comment.

The EPA received multiple public comments regarding the legal authority for this regulation. Several commenters expressed their concerns regarding the EPA citing the Federal Housekeeping Statute as the legal authority for the proposed rulemaking. For example, some commenters state that the Federal Housekeeping Statute does not confer any authority on the EPA to promulgate regulations because the EPA is not an “executive department” within the meaning of the statute. Even if the Federal Housekeeping Statute confers authority on the EPA, the commenters claim that this rulemaking exceeds the “day-to-day office housekeeping” authorized by the statute. These commenters disagree with the EPA that this rule is a procedural matter of “internal management” and claim that it is a substantive regulation that creates public rights and agency obligations. Further, the commenters state that opening the proposed rule to public comment contradicts the EPA's claims that the rule is “internal management” with no substantive effect.

The EPA disagrees with these commenters. As the Supreme Court discussed in Chrysler Corp v. Brown, the intended purpose of 5 U.S.C. 301was to grant early Executive departments the authority “to govern internal departmental affairs.” Chrysler Corp. v. Brown, 441 U.S. 281, 309 (1979). As the Supreme Court further notes, section 301 authorizes “what the [Administrative Procedure Act] terms `rules of agency organization, procedure or practice' as opposed to substantive rules.”  Id. at 310.

The EPA is not one of the 15 “Executive Departments” listed at 5 U.S.C. 101. However, the EPA gained housekeeping authority through the Reorganization Plan No. 3 of 1970, 84 Stat. 2086 (July 9, 1970). The Reorganization Plan created the EPA, established the Administrator as “head of the agency[,]” and transferred functions and authorities of various agencies and Executive departments to the EPA. Section 2(a)(1)-(8) of the Reorganization Plan transferred to the EPA functions previously vested in several agencies and executive departments including the Departments of Interior and Agriculture. Section 2(a)(9) also transferred so much of the functions of the transferor officers and agencies “as is incidental to or necessary for the performance by or under the Administrator of the functions transferred.” The Federal Housekeeping Statute was existing law at the time the Reorganization Plan was enacted. Accordingly, the concomitant federal housekeeping authority to issue procedural rules was transferred to the EPA.

The Office of Legal Counsel has opined that the Reorganization Plan “convey[s] to the [EPA] Administrator all of the housekeeping authority available to other department heads under section 301” and demonstrates that “Congress has vested the Administrator with the authority to run EPA, to exercise its functions, and to issue regulations incidental to the performance of those functions.”  2

Courts have recognized the EPA to be an agency with section 301 housekeeping authority. The U.S. Court of Appeals for the Second Circuit, in EPA v. General Elec. Co., 197 F.3d 592, 595 (2d Cir. 1999), found that “the Federal Housekeeping Statute, 5 U.S.C. 301, authorizes government agencies such as the EPA to adopt regulations regarding `the custody, use, and preservation of [agency] records, papers, and property.' ” The Fourth Circuit Court of Appeals, in Boron Oil Co. v. Downie, 873 F.2d 67, 69 (4th Cir. 1989), held that the district court exceeded its jurisdiction where it compelled testimony by an Agency employee in a state court action to which the government was not a party, contrary to duly promulgated EPA regulations, which the EPA argued were authorized by section 301. Although the court assumed the EPA derived its housekeeping authority from 5 U.S.C. 301, these cases nonetheless recognized that the EPA had federal housekeeping authority. Indeed, if the EPA did not possess federal housekeeping authority, the EPA would not be able to carry out its daily functions, which would in turn preclude the EPA from exercising its duties as a federal regulatory agency. The same would hold true for other regulatory agencies that are not listed as an Executive department under 5 U.S.C. 101.

On October 9, 2019, the President signed E.O. 13891, “Promoting the Rule of Law Through Improved Agency Guidance Documents.” E.O. 13891 directs Federal agencies to finalize regulations that “set forth processes and procedures for issuing guidance documents.”  3 E.O. 13891 notes that “Americans deserve an open and fair regulatory process that imposes new obligations on the public only when consistent with applicable law and after an agency follows appropriate procedures.”  4 A central principle of E.O. 13891 is that guidance documents should clarify existing obligations only; they should not be a vehicle for implementing new, binding requirements on the public. E.O. 13891 recognizes that these documents, when designated as significant guidance documents, could benefit from public input prior to issuance. On October 31, 2019, the White House Office of Management and Budget (OMB) Office of Information and Regulatory Affairs (OIRA) issued a memorandum to Federal agencies outlining how to implement E.O. 13891. 5

On May 22, 2020, consistent with E.O. 13891 and OMB's implementing memorandum, the EPA proposed new procedures for developing and issuing guidance documents as defined in the proposed rule, and establishing a petition process for public requests to modify or withdraw an active guidance document. 6 The purpose of this action is to ensure that the EPA's guidance documents are:

• Developed with appropriate review;

• Accessible and transparent to the public; and,

• Benefit from public participation in the development of significant guidance documents.

Implementing these procedures will lead to enhanced transparency and help to ensure that guidance documents are not improperly treated as legally binding requirements by the EPA or by the regulated community. Moreover, this regulation defines “guidance document” to provide greater clarity to the public regarding the scope of documents subject to these procedures. This regulation will improve the ability of members of the public to identify the guidance documents that the EPA uses and relies upon, resolving any concerns over the difficulty assessing the final, effective, active guidance of the Agency. 7

The EPA intends that this regulation be interpreted and implemented in a manner that, consistent with the goals of improving the Agency's accountability and the transparency of the EPA's guidance documents, provides appropriate flexibility for the EPA to take those actions necessary to accomplish its mission.

This final rule establishes the EPA's internal policies and procedures for the issuance of future guidance documents pursuant to the directives included in E.O. 13891 and codifies the requirement that the Agency maintain an internet portal with a list of all effective, active EPA guidance documents meeting the definition in this regulation. The procedures contained in this final rule apply to guidance documents, as defined by this regulation, issued by the EPA and not excluded under Section 4(b) of E.O. 13891, as described in section III.A of this preamble. 8 Section 4(b) of the E.O. directs the Administrator of OIRA to issue memoranda establishing exceptions from the E.O. for categories of guidance documents, as appropriate. Categorical exceptions may include documents that generally are only routine or ministerial, or that are otherwise of limited importance to the public. The procedures established in this rule do not apply to guidance documents excepted from the requirements of E.O. 13891 under Section 4(b) of the E.O., as interpreted by M-20-02, or otherwise excepted by the Administrator of OIRA.

The EPA proposed definitions of the terms “guidance document” and “significant guidance document” consistent with the definitions in E.O. 13891 and OMB's implementing memorandum, M-20-02. Several commenters provided strong support for the EPA's definition of “guidance document” and stated that it is consistent with the targeted approach under E.O. 13891. The EPA agrees that the proposed definition is consistent with the E.O. 13891 definition.

Other commenters expressed their concerns that the definition of “guidance document” in this rulemaking does not provide sufficient clarity regarding what documents the EPA considers to be guidance documents subject to these requirements. A few commenters recommended that the EPA create three or more categories of EPA guidance documents, such as significant guidance documents, other important guidance documents on the EPA Guidance Portal, and other technical program guidance documents excluded from the EPA Guidance Portal. One commenter noted that the definition of “guidance document” could be interpreted to only encompass guidance documents that apply to regulated parties, not States, and recommended a revision to clarify applicability to States.

The EPA disagrees that the definition of guidance document is unclear. The EPA adopted the definition of guidance document set forth in E.O. 13891 with only minor modifications and believes the listed exclusions are helpful in distinguishing the types of documents that do not meet the definition. In common parlance, guidance can refer to many types of documents issued by the EPA and other agencies. The EPA does not intend to use this rule to parse the various nomenclatures and types of guidance that it uses. The definition of a “guidance document” and “significant guidance document” as used in this rule are specific to this rule. To provide further clarity in the implementation of this rule, the EPA has also included definitions for “active guidance document” and “rescinded guidance document.” Regarding the revision recommended by a commenter to clarify whether guidance documents can apply to States, the EPA disagrees with revising the proposed definition of guidance document. In some circumstances, States are regulated entities subject to EPA guidance documents while in other circumstances States are co-regulators. The EPA believes that the proposed definition adequately allows for this dual role of States.

The EPA received comments regarding the meaning of “active guidance document” and “rescinded guidance document.” One commenter stated that the EPA should clarify what it means for a guidance document to be “rescinded” or “in effect,” as neither term was expressly defined in the proposed rule or explained in the preamble and clarifying would ensure that the public understands which guidance documents have legal effect. The commenter stated that the EPA should clarify that a “rescinded” guidance document is a guidance document that is not included on the EPA Guidance Portal and means that the EPA cannot “cite, use, or rely on” it as explaining regulatory requirement except to establish historical facts. The commenter stated that the EPA should clarify that a guidance document “in effect” is one that meets the proposal's definition of “guidance document” and is included in the EPA Guidance Portal, and thus means that the EPA may cite it.

The EPA agrees that these definitions would increase clarity and transparency. Based on comments received, the EPA is adding definitions for “active guidance document” and “rescinded guidance document.” Specifically, the EPA is defining “active guidance document” in this rule as a guidance document or significant guidance document in effect that EPA expects to cite, use, or rely upon. Conversely, the EPA is defining a “rescinded guidance document” in section 2.503 as a document that would otherwise meet the definition of a guidance document or significant guidance document, but that the EPA may not cite, use, or rely upon except to establish historical facts. This definition was adopted from the proposed section 2.502(c).

Several commenters provided comments regarding how the definition of guidance document applied to scientific and technical documents. Several commenters recommended that the definition of “guidance document” should not exclude scientific or technical determinations. For example, several commenters recommended that scientific assessments produced by the EPA's Integrated Risk Information System (IRIS) Program be included in the definition of guidance document. One commenter agreed with the EPA that health advisories are appropriately considered guidance with regards to the proposed rulemaking, while another commenter specifically requested that the EPA clarify whether water quality criteria documents (CWA Sec. 304(a)) qualify as guidance documents or significant guidance. Another commenter recommended that the EPA either clearly state that scientific documents are not covered by this rule or post all of the scientific documents that the EPA has relied on since 2008 on the EPA Guidance Portal.

EPA defines “guidance document” consistent with the definitions in E.O. 13891 and OMB's implementing memorandum, which includes the term “technical issue.” Furthermore, for purposes of this rule, the EPA considers the term “scientific” to be a subset of “technical.” As such, the EPA has determined that the definition of “guidance document” includes certain scientific and/or technical documents. For example, the EPA has determined that drinking water health advisories and CWA 304(a) national recommended Water Quality Criteria issued by the Office of Water because they are statements of general applicability, set forth a policy on a technical issue, are intended to have future effect on the behavior of regulated parties, and are not subject to one of the listed exclusions. However, EPA releases a great deal of technical information (including scientific information) that would not be subject to this regulation because it is not a statement intended to affect the future behavior of regulated parties that sets forth a policy on a statutory, regulatory, or technical issue, or an interpretation of a statute or regulation. Due to the diversity of purpose and content of scientific and technical documents, it would be inconsistent with E.O. 13891 for the EPA to categorically determine whether all scientific and technical documents are “guidance documents.”

The EPA proposed that all active guidance documents issued by the Agency must be included on the EPA Guidance Portal, 9 The EPA Guidance Portal was initially made publicly available on February 28, 2020, and was fully populated to include all active guidance documents on July 31, 2020. Starting on the effective date of this rule, as per section 2.504 of this final rule, all active guidance documents shall appear on the EPA Guidance Portal on the EPA website. Any guidance document (as defined in this regulation) excluded from the EPA Guidance Portal does not represent an active guidance document of the Agency and will have no effect except to establish historical facts.

The EPA proposed to inform the public via the EPA Guidance Portal that a new guidance document has been issued, an active guidance document has been modified, or an active guidance document has been withdrawn. The EPA solicited and received several comments related to the EPA Guidance Portal, the requirement for all active guidance to be on the EPA Guidance Portal, and the utility of using the EPA Guidance Portal to inform the public that a new guidance document has been issued, an active guidance document has been modified, or an active guidance document has been withdrawn.

Most commenters supported the creation and use of the EPA Guidance Portal to maintain a consolidated online portal with lists of active guidance documents as an important method for the Agency to promote transparency, fairness, consistency, and regulatory compliance. One commenter stated that the EPA Guidance Portal will be especially helpful for smaller businesses with limited resources and personnel for regulatory compliance.

The EPA agrees with commenters that the establishment of the EPA Guidance Portal is an important achievement in promoting greater transparency with respect to the Agency's guidance documents.

Several commenters noted that it is difficult for an interested party to ascertain whether a document is not on the EPA Guidance Portal because it does not meet the definition of a guidance document or because it has been rescinded. Some commenters recommended that the EPA include new sections on the EPA Guidance Portal for documents that the EPA has determined not to be a “guidance document” and for guidance documents that are rescinded. One commenter suggested that the EPA could include a select list of rescinded guidance documents that would be of broad interest, another suggested a list of rescinded guidance documents would be helpful even if not comprehensive. One commenter recommended that the EPA be over-inclusive in its initial listing so that no essential guidance gets accidently rescinded. Commenters requested that the EPA clarify when and the manner in which non-Agency parties may continue to rely on guidance that are not posted to the EPA Guidance Portal, and clarify that external parties are not subject to the same prohibition on citing, using, or relying on such guidance as the EPA.

The EPA will work to continually improve the transparency of the EPA Guidance Portal, including exploring ways to inform the public of the status of documents not included on the EPA Guidance Portal. The EPA recommends that questions regarding specific guidance documents omitted from the EPA Guidance Portal should be directed to the relevant EPA program or regional office that issued the document.

Regarding the status of rescinded guidance documents, it is important to note that this rule only specifies the procedures that the Agency will follow. The EPA believes the proposed regulation was clear that the Agency could not rely on a rescinded guidance document except to establish historical facts. This regulation is not intended to affect the Agency's past actions that relied upon EPA guidance documents that are now rescinded; decisions made by the Agency are not invalidated because guidance used in reaching those decisions is now rescinded. Notwithstanding the general prohibition on EPA's use of rescinded guidance documents, the EPA cannot limit how non-Agency parties use rescinded guidance, as long as they do not represent rescinded guidance documents as current Agency policy.

Several commenters noted that the EPA Guidance Portal was missing specific documents or classes of documents or that it contained documents that should not be considered active guidance documents.

During the public comment period for this rule, the EPA Guidance Portal had not yet been fully populated, so some situations involving purportedly missing documents may have been resolved in the intervening time. The dispensation of specific documents on the EPA Guidance Portal is outside the scope of this rulemaking. The EPA recommends that any such questions regarding specific guidance documents should be directed to the relevant EPA program or regional office that issued the document. Additionally, as discussed in section III.E in this preamble, the EPA is adopting in section 2.507 new procedures for the public to petition for reissuance of a rescinded guidance document that the petitioner believes should be included on the EPA Guidance Portal.

Many commenters provided suggestions to improve the usability and functionality of the EPA Guidance Portal, for example, by making it easier to do a single search across all agency guidance. Suggestions included improving the search functionality across programs, adding automated notifications for new or modified documents ( e.g., subscribed email lists or listservs), using visual flags to denote changes or additions, curating the list into statutory or programmatic categories. One commenter opposed using the EPA Guidance Portal as the only source of information regarding new or modified guidance.

The EPA agrees with commenters that the usability and functionality of the EPA Guidance Portal could be improved. In consideration of these comments, the EPA will continue to evaluate and work to improve the functionality of the EPA Guidance Portal, such as improving search capabilities and notification mechanisms.

After consideration of these comments and consistent with the requirements of E.O. 13891, the EPA is finalizing the requirement that all active guidance documents be published on the EPA Guidance Portal and that any guidance document excluded from the list of active guidance documents published on the EPA Guidance Portal does not represent an active guidance document (as defined in this regulation) of the Agency and will have no effect, as proposed. 10 When a new guidance document is issued, or an active guidance document is modified, or an active guidance document is withdrawn, the EPA will inform the public via the EPA Guidance Portal.

The EPA agrees that the EPA Guidance Portal is the most effective method to notify the public of changes to the list of active guidance documents because it provides the ability to sort or search by the most current date so that newly added or modified guidance documents appear at the top of the list. The EPA will work to improve the functionality of the Portal and will consider additional means of notifying the public of changes to the list of guidance documents in the future. In addition, the EPA will explore ways to inform the public of the status of documents not included on the EPA Guidance Portal.

As stated in the proposed rule, the list of active guidance documents on the EPA Guidance Portal is intended to contain only documents that meet the definition of “guidance document” and “significant guidance documents” as defined in this regulation. Documents that are excluded from that definition will not typically be included in the list of active guidance documents on the EPA Guidance Portal, although they may still be in effect. For example, the definition of guidance documents in this regulation excludes, among others, internal guidance directed to the EPA or its components or other agencies, statements of specific rather than general applicability, and internal executive branch legal advice or legal opinions addressed to executive branch officials, provided these actions are not intended to have substantial future effect on the behavior of regulated parties. Because excluded documents are not “guidance documents” under this regulation, their omission from the EPA Guidance Portal does not imply that they are “rescinded guidance documents.”

As noted in the proposal, the EPA Guidance Portal currently provides the following information for each guidance document:

• A concise name for the guidance document;

• The date on which the guidance document was issued;

• The date on which the guidance document was posted to the Guidance Portal;

• An EPA unique identifier;

• A hyperlink to the guidance document and any supporting or ancillary documents;

• The general topic, program, and/or statute addressed by the guidance document; and

• A brief summary of the guidance document's content.

In addition to the information associated with each guidance document, the EPA Guidance Portal includes a clearly visible note expressing that (a) guidance documents lack the force and effect of law, unless authorized by statute or incorporated into a contract; and (b) the Agency may not cite, use, or rely on any guidance document as defined in this rule, that is not posted on the EPA Guidance Portal, except to establish historical facts. As noted in the preamble to the proposed regulation, the EPA Guidance Portal will also include a link to this final regulation after publication in the Federal Register as well as to any future proposed or final amendments. 11

The EPA proposed to require certain standard elements for all guidance documents issued after the effective date of this final rule, consistent with E.O. 13891. Specifically, the EPA proposed to require that each guidance document would include: The term “guidance;” the issuing office; the title; a unique identification number; the date issued; the general activities to which and persons to whom it applies (when practicable); a citation to the statutory provision or regulation; whether it was a revision to a previous document; a summary; and a disclaimer as to the non-binding nature of guidance documents.

The EPA received comments that were generally supportive of the minimum required elements for guidance documents. Several commenters supported the proposed disclaimer that clarifies that guidance documents are non-binding, would not have the force and effect of law, and are intended to clarify existing requirements. A few commenters recommended additional required elements, such as identification of an EPA contact person for the guidance document.

The EPA acknowledges the support for the minimum elements from most commenters but disagrees that the additional recommended elements would be appropriate to require for all guidance documents at this time. For example, the identification of a specific EPA contact person would become less useful over time, as individual staff change positions or leave the Agency. Instead, the requirement to identify the issuing office will provide sufficient transparency for the public to contact the Agency regarding the guidance. The EPA believes the current set of elements strikes the appropriate balance between consistency and flexibility.

Most commenters supported the proposed requirement that guidance documents refrain from using mandatory language. Consistent with these comments, the EPA is finalizing the proposed requirement that guidance documents, given their legally nonbinding nature, will avoid including mandatory language such as “shall,” “must,” “required” or “requirement,” unless these words are used to describe a statutory or regulatory requirement, or the language is addressed to EPA staff and will not foreclose consideration by the EPA of positions advanced by affected private parties.

Most comments were supportive regarding the requirement that the EPA Regional Office must receive concurrence from the corresponding Presidentially-appointed EPA official ( i.e., the relevant Assistant Administrator or an official who is serving in the acting capacity) at EPA headquarters who is responsible for administering the national program to which the guidance document pertains before issuing a new guidance document developed by an EPA Regional Office. Therefore, the EPA is finalizing this concurrence requirement as proposed.

For significant guidance documents, the EPA proposed to require public notice in the Federal Register and a minimum 30-day comment period. However, several commenters recommended that the EPA expand the notice and comment requirement to cover most or all guidance covered by this rulemaking, not just those defined as “significant.” Some commenters stated that broader application of the notice and comment requirements could delay issuance of non-significant guidance.

The EPA disagrees that it is necessary to expand the notice and comment requirements for significant guidance documents to all guidance documents. As stated in the proposal preamble, the EPA has the authority to seek comment on any document that the Agency determines would benefit from public input and would do so when appropriate. In addition, all active guidance documents that meet the definition in this rulemaking will be available on the EPA Guidance Portal, and the public can petition the Agency to modify or rescind any of these guidance documents. Further, the EPA agrees that applying the notice and comment requirements to non-significant guidance could delay issuance. For these reasons, the EPA declines to expand the notice and comment requirement to all guidance documents.

Regarding determinations of whether a guidance document qualifies as significant, a few commenters requested clarification on the process that will be used to identify a guidance document as a significant guidance document. The EPA disagrees that more details on this process are required and believes that the regulation is clear. The EPA is finalizing the proposed requirement to seek significance determinations from OIRA for guidance documents, as appropriate, according to E.O. 12866 and E.O. 13891.

One commenter stated that if the Guidance Portal and the procedures within this rule are used to revoke guidance that has not been formally replaced, it could end up creating more confusion for regulated entities and stakeholders rather than helping to resolve it.

The EPA disagrees that the implementation of this rulemaking will cause confusion. In fact, this rulemaking will increase transparency regarding the issuance, modification, and rescission of guidance documents and benefit regulated entities and stakeholders by clarifying which guidance documents are active and in effect. If the EPA rescinds a guidance document that clarifies existing obligations, EPA will not utilize an alternative policy or interpretation in taking an action without providing sufficient and fair notice.

The EPA proposed additional requirements for significant guidance documents beyond the requirements for all guidance documents described in section III.C. of this preamble. These proposed requirements for significant guidance documents included announcements in the Federal Register , minimum 30-day comment period, response to comments, approval by Presidential appointees, review by OIRA under Executive Order 12866 before issuance, and compliance with other Executive Orders.

The EPA received several comments on these proposed requirements for significant guidance documents. Most commenters were supportive of the requirements to announce new, modified, and rescinded significant guidance documents in the Federal Register and to provide the public an opportunity to comment. For example, some commenters noted that these requirements would increase transparency and public participation that may not have occurred when the EPA previously issued significant guidance. Some commenters favored other mechanisms to announce significant guidance documents instead of or in addition to a Federal Register notice ( e.g., using the EPA Guidance Portal, through program specific websites, notifications to states directly, notifications to the affected regulated community through trade associations).

Most commenters supported the 30-day comment period requirement for significant guidance documents. Some commenters recommended that the final rule clarify that the 30-day comment period is a minimum and that the EPA retains discretion to allow longer comment periods, while other commenters recommended that a 60-day comment period should be the minimum. Some commenters recommended additional engagement with states on a government-to-government basis, beyond the public comment process. One commenter recommended that the EPA make the comments received on guidance documents publicly available. Some commenters recommended that the EPA limit its response to comments on draft guidance to “major concerns” only (as specified in E.O. 13891, section 4(a)(iii)(A)) and recommended that the responses generally inform the public of the Agency's thinking on key issues rather than create a detailed record.

The EPA agrees that the notice and comment requirements for significant guidance documents would increase transparency and public participation. As stated in the proposal preamble, the EPA reiterates that the 30-day public comment opportunity for significant guidance documents is a minimum, and the EPA retains discretion to use longer comment periods and will do so when it is warranted by the circumstances surrounding the issuance of a specific guidance document. As stated in the proposal preamble, the EPA does not intend to supersede non-conflicting internal policy and procedures that the EPA established for significant guidance documents in 2007 as part of its implementation of the OMB's Bulletin for Agency Good Guidance Practices (2007). 12 The EPA will continue to follow recognized best practices, such as those identified in the 2007 Bulletin, in responding to public comments received on guidance documents.

Many commenters supported the proposed exceptions to the comment requirement for significant guidance documents for “good cause” because there are emergencies when it is essential for the EPA to be able to issue guidance quickly. However, other commenters claimed that the proposed exceptions were vague and not transparent.

The EPA agrees that there can be instances when it is in the public interest for the Agency to issue a significant guidance document without a public comment period, though such instances are expected to be rare. This good cause exception is consistent with E.O. 13891 (Section 4 (a)) and the APA requirement for regulations (5 U.S.C. 553(b)(3)(B)). After consideration of the public comments, the EPA is finalizing the additional specific requirements for significant guidance documents and the exceptions to the comment requirement, as proposed, with a minor modification to clarify that approval of significant guidance documents will occur on a non-delegable basis, consistent with E.O. 13891.

Consistent with E.O. 13891, the EPA proposed procedures to allow the public to petition the EPA for the modification or withdrawal of an active guidance document posted on the EPA Guidance Portal. The EPA proposed formatting and content elements for petitions to enable a full evaluation by the Agency of the merits of the requested action, including the petitioner's name and contact information, title and the EPA unique identifier of the guidance document that the petitioner is requesting be modified or withdrawn, the nature of the relief sought by the petitioner, and the rationale for their request, among other elements.

Additionally, the proposed rule included requirements to ensure timely responses to petitions. The EPA would respond to petitions no later than 90 calendar days after receipt of the petition. If the EPA requires more than 90 calendar days to consider a petition, the EPA would inform the petitioner that more time is required and indicate the reason why and provide an estimated decision date. The EPA would only extend the response date one time for a period not to exceed 90 calendar days before providing a response. The EPA noted in the proposed rule that the response and the set timeframes for responding to the petition are not intended to capture the implementation of the response.

The EPA received comments on the process for requesting modification or withdrawal of guidance documents. Several commenters supported the creation of petition process and noted that petitions can help the Agency be made aware of existing guidance that is of concern to impacted stakeholders. Many commenters were supportive of the minimum information to be included in petitions and noted that they had no suggestions for additional information to be included in petitions to modify or withdraw an active guidance document.

The EPA agrees with these supportive comments. After consideration of public comments, the EPA is finalizing these requirements with minor modifications. The EPA Guidance Portal will provide clear and specific instructions to the public regarding how to request the modification or withdrawal of an active guidance document. The EPA is finalizing that the public may submit petitions using one of the two following methods described on the EPA Guidance Portal: (1) An electronic submission through the EPA's designated submission system identified on the EPA Guidance Portal ( i.e., using a link labeled “Submit a petition for Agency modification or withdrawal of guidance documents”), or, (2) a paper submission to the EPA's designated mailing address listed on the EPA Guidance Portal.

The EPA received public comments requesting more transparency surrounding petitions submitted to the Agency. Several commenters noted that the EPA should make petitions received publicly available and some supported making public the Agency's response to petitions. Commenters also believed that the most appropriate place to identify information related to petitions is on the EPA Guidance Portal. One commenter suggested that the EPA publicize and provide a comment period to allow stakeholders and members of the public to comment on such a petition. Finally, a commenter noted that the EPA did not indicate how the Agency would notify the public of subsequent actions taken by the Agency pursuant to the petition.

The EPA agrees with public comments requesting additional transparency regarding petitions received. Therefore, the EPA is finalizing a requirement that the Agency make available to the public, information about petitions received, including the title of the putative guidance document to which the petition pertains. Please note, the information about petitions received may, from time to time, include references to invalid petitions (such as petitions that do not request that the Agency modify or rescind an active guidance document or reinstate a rescinded guidance document), and references to such invalid petitions is not an acknowledgement by the EPA that the documents referenced by those petitions are guidance documents as defined by these procedures.

Although the EPA is not finalizing a requirement for Agency responses to petitions to be made publicly available in this regulation, the EPA will evaluate the feasibility of doing so in the future once more information exists about the volume and complexity of petitions. The EPA disagrees with requiring the Agency to seek public comment on petitions received because such a process goes beyond E.O. 13891, would unduly complicate the petition process, and would be excessively burdensome for the Agency to implement. The additional time required for notice and comment on petitions received could delay the timeliness of the Agency's response to petitions. The public will have access to information regarding subsequent actions related to a petition to modify or withdraw a guidance document through the EPA Guidance Portal where the EPA will post newly modified guidance documents and remove rescinded guidance documents from the list of active guidance documents.

A few commenters noted that proposed section 2.507 does not contain procedures for the public to petition the EPA to add to the EPA Guidance Portal a guidance document that a stakeholder believes should be an active guidance document. Commenters requested that the EPA add a specific procedure by which any party can petition for the inclusion of an existing guidance document in the EPA Guidance Portal. One commenter stated that if the EPA declines to add a document to the Guidance Portal, then the EPA should be required to explain the basis for their decision.

The EPA agrees with these commenters that it is appropriate for the public to have a formal mechanism to request that a rescinded guidance document be included on the EPA Guidance Portal and is providing procedures for the public to petition the EPA for reinstatement of a rescinded guidance document. The EPA is limiting these procedures to rescinded guidance documents due to concerns about the potential administrative burden associated with processing petitions of unknown scope and number to reclassify other categories of documents as guidance documents. The EPA anticipates that a petition response would provide the basis for granting or denying the petition. Prior to petitioning the EPA to reinstate a rescinded guidance document, to determine the status of a guidance document excluded from the EPA Guidance Portal, the public is encouraged to contact the EPA program office or regional office that issued the guidance document.

EPA also received comments regarding the applicability of the petition procedures. Specifically, one commenter noted that the scope specified in section 2.503(b) of the proposed rulemaking was inconsistent with the proposed petition procedures for modification or withdrawal of a guidance document. The proposed regulation would limit the applicability of the guidance procedures to “to all active guidance documents as defined in this subpart, issued by all components of the Environmental Protection Agency (EPA) after [date of issuance for the final rule]. ” The commenter noted that limiting the applicability of the regulations to guidance documents “issued after” the proposed rulemaking was inconsistent with the petition procedures that apply to all active guidance documents on the EPA Guidance Portal, including those issued prior to the effective date of this regulation.

The EPA agrees that the petition process is intended to apply to all active guidance documents and has clarified the applicability in this final regulation. In response to comments, the EPA is clarifying that petition procedures for modification or withdrawal apply to all active guidance documents on the EPA Guidance Portal. For petitions for reinstatement, the procedures apply to guidance documents not currently on the EPA Guidance Portal.

The EPA proposed to allow the Agency to deviate from the procedures set forth in this regulation when necessary at the written direction of the Administrator and in the Administrator's sole and unreviewable discretion.

Several commenters expressed concerns regarding the proposed provision that would allow the EPA to deviate from the required procedures. These commenters claimed that allowing deviation undermines the purpose of the proposed rulemaking, would decrease transparency and certainty, would be contrary to the fundamental principle of administrative law to explain the Agency's decisions, and would lower the likelihood of consistency through this and future administrations.

The EPA agrees with commenters that this provision creates uncertainty and is not finalizing this provision.

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

This action is exempt from review by the Office of Management and Budget (OMB) because it is a rule of agency procedure and practice and is limited to agency management.

This action is not an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866.

This action does not contain any information collection activities and therefore does not impose an information collection burden under the PRA.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This is a rule of agency procedure and practice. The EPA expects the benefits of this rule to be improved transparency and management of the EPA's guidance documents.

This action does not contain any unfunded mandate as described in UMRA, 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 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 does not have tribal implications as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children. Per the definition of “covered regulatory action” in section 2-202 of Executive Order 13045 and because this action does not concern an environmental health risk or safety risk, it is not subject to Executive Order 13045.

This action is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.

This rulemaking does not involve technical standards.

The EPA believes that this action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or safety standard. This regulatory action is a procedural rule and does not have any impact on human health or the environment.

This rule is exempt from the CRA because it is a rule of agency organization, procedure or practice that does not substantially affect the rights or obligations of non-agency parties.

For the reasons set forth in the preamble, the Environmental Protection Agency amends 40 CFR part 2 as follows:

On June 2, 2010, the EPA Administrator signed a final rule establishing a new SO 2 primary NAAQS as a 1-hour standard of 75 parts per billion (ppb), based on a 3-year average of the annual 99th percentile of daily maximum 1-hour average concentrations. 75 FR 35520 (June 22, 2010), codified at 40 CFR 50.17. This action also provided for revocation of the existing 1971 primary annual and 24-hour standards, subject to certain conditions. 1 Following promulgation of a new or revised NAAQS, EPA is required by the CAA to designate areas throughout the United States as attaining or not attaining the NAAQS; this designation process is described in section 107(d)(1)-(2) of the CAA. On August 5, 2013, EPA promulgated initial air quality designations for 29 areas for the 2010 SO 2 NAAQS (78 FR 47191), which became effective on October 4, 2013, based on violating air quality monitoring data for calendar years 2009-2011, where there was sufficient data to support a nonattainment designation. 2 The Indiana Area was designated as nonattainment in this initial (first) round of designations. 78 FR 47191 (August 5, 2013).

The Indiana Area consists of all of Indiana County, Pennsylvania and also Plumcreek Township, South Bend Township, and Elderton Borough in Armstrong County, Pennsylvania. The boundaries of the nonattainment area were defined in order to encompass the four primary SO 2 emitting sources of Keystone, Conemaugh, Homer City, and Seward. The October 4, 2013 effective date of the final designation triggered a requirement for Pennsylvania to submit, by April 4, 2015, an attainment plan SIP revision describing how the Area would attain the 2010 SO 2 NAAQS as expeditiously as practicable, but no later than October 4, 2018, in accordance with CAA sections 172(c) and 191-192.

For a number of areas, including the Indiana Area, EPA published a document on March 18, 2016, finding that Pennsylvania and other states had failed to submit the required SO 2 attainment plan by the April 4, 2015 deadline. 81 FR 14736. This finding triggered the CAA section 179(a) deadline for the potential imposition of new source review and highway funding sanctions. Pennsylvania submitted the attainment plan on October 11, 2017. EPA then sent a letter to Pennsylvania, dated October 13, 2017, finding that the attainment plan submittal was complete, and therefore the sanctions under section 179(a) would not be imposed as a consequence of Pennsylvania having missed the April 4, 2015 deadline. Additionally, EPA's March 18, 2016 finding triggered a requirement under CAA section 110(c) that EPA promulgate a Federal implementation plan (FIP) within two years of the effective date of the finding unless, by that time, the state has made the necessary complete submittal and EPA has approved the submittal as meeting applicable requirements. This FIP obligation will no longer apply as a result of this action to finalize this SIP approval.

Attainment plans for SO 2 must meet the applicable requirements of the CAA, and specifically, CAA sections 110, 172, 191, and 192. The required components of any attainment plan submittal are listed in section 172(c) of Title I, part D of the CAA, and additional requirements specific to SO 2 attainment plans are found in CAA sections 191 and 192 and in EPA's implementing regulations at 40 CFR part 51. On April 23, 2014, EPA also issued guidance (hereafter “2014 SO 2 Nonattainment Guidance”) recommending how state submissions could address the statutory requirements for SO 2 attainment plans. 3 The 2014 SO 2 Nonattainment Guidance describes the statutory requirements for an attainment plan, which include: (1) A comprehensive, accurate, current inventory of actual emissions from all sources of SO 2 within the nonattainment area (172(c)(3)); (2) an attainment demonstration that includes a modeling analysis showing that the enforceable emissions limitations and other control measures taken by the state will provide for expeditious attainment of the NAAQS (172(c)); (3) demonstration of RFP (172(c)(2)); (4) implementation of RACM, including RACT (172(c)(1)); (5) Nonattainment NSR requirements (172(c)(5)); and (6) adequate contingency measures for the affected area (172(c)(9)).

In accordance with section 172(c) of the CAA, the Commonwealth of Pennsylvania's October 2017 attainment plan for the Indiana Area includes: (1) An emissions inventory for SO 2 for the plan's base year (2011); and (2) an attainment demonstration. The plan's attainment demonstration includes the following: (1) Analyses that locate, identify, and quantify sources of emissions contributing to violations of the 2010 SO 2 NAAQS; (2) a determination that the control strategy for the primary SO 2 sources within the nonattainment areas constitutes RACM/RACT; (3) a dispersion modeling analysis of an emissions control strategy for the primary SO 2 sources (Keystone, Conemaugh, Homer City, and Seward), showing attainment of the SO 2 NAAQS by the October 4, 2018 attainment date; (4) requirements for RFP toward attaining the SO 2 NAAQS in the Area; (5) contingency measures; (6) the assertion that Pennsylvania's existing SIP-approved NSR program meets the applicable requirements for SO 2 ; and (7) the request that emission limitations and compliance parameters for Keystone, Conemaugh, Homer City, and Seward be incorporated into the SIP.

On July 13, 2018 (83 FR 32606), EPA published a notice of proposed rulemaking (NPRM) in which EPA proposed approval of Pennsylvania's Indiana, PA SO 2 attainment plan and SO 2 emission limits and associated compliance parameters for the Keystone, Homer City, Conemaugh and Seward sources. During the public comment period, the Sierra Club (in conjunction with the National Parks Conservation Association, PennFuture, Earthjustice, and Clean Air Council) submitted a modeling analysis which purported to show that the emission limits in the attainment plan did not assure attainment because one modeled receptor within the nonattainment area was above the SO 2 NAAQS. Sierra Club's modeling also purported to show exceedances of the SO 2 NAAQS outside of the nonattainment area.

In response to this comment, on February 5, 2020, the Pennsylvania Department of Environmental Protection (PADEP) submitted supplemental information in support of the attainment plan. The February 5, 2020 submittal includes: (1) A supplemental air dispersion modeling report; (2) supplemental air dispersion modeling data; (3) a supplemental air dispersion modeling protocol; (4) a meteorological monitoring plan; (5) meteorological monitoring data; (6) meteorological monitoring quality assurance, quality control, and audit reports; (7) Clean Air Markets Division (CAMD) emissions data for 2010-2018; and (8) Continuous Emissions Monitoring (CEM) data for 2010-2019 (3rd Quarter). The supplemental air dispersion modeling used a more refined model receptor grid than the original submittal, meteorological data collected near the controlling modeled source (Seward) and more recent (2016-18) background concentrations from the South Fayette SO 2 monitor (the monitor used to determine background concentrations in the original modeling analysis). All of these updates have been fully described in the supplemental modeling report from the February 5, 2020 submittal and in four separate Technical Support Documents (TSDs) written by EPA for this action: (1) The TSD for the Randomly Reassigned Emission (RRE) Modeling Analysis in the Supplemental Information to Address a Comment Received by the EPA on Pennsylvania's 1-hour Sulfur Dioxide Attainment Demonstration for the Indiana, Pennsylvania Nonattainment Area submitted on February 5, 2020 (hereafter referred to as the RRE Modeling TSD); (2) the TSD for the Modeling Portions of the Document Entitled “Supplemental Information to Address a Comment Received by the EPA on Pennsylvania's 1-hour SO 2 Attainment Demonstration for the Indiana, Pennsylvania Nonattainment Area” (hereafter referred to as the Supplemental Modeling TSD); (3) the TSD Addressing Modeled Concentration Values for the Keystone Generating Station Included in the Indiana, PA 1-Hour SO 2 Nonattainment Area (hereafter referred to as the Keystone Modeling TSD); and (4) the TSD For the Part 75 Source Emissions Contained in the Supplemental Information to Address a Comment Received by the EPA on Pennsylvania's 1-hour Sulfur Dioxide Attainment Demonstration for the Indiana, Pennsylvania Nonattainment Area 2020 submitted on February 5, 2020 (hereafter referred to as the Part 75 Emissions TSD).

In order to allow for public comment on this supplemental information and modeling, on March 9, 2020 (85 FR 13602), EPA published a notice of data availability (NODA) for the February 5, 2020 submittal. Sierra Club submitted new comments raising issues with the supplemental modeling, which are fully discussed later in this preamble.

Other specific requirements of the Indiana Area attainment plan and the rationale for EPA's proposed action are explained in the NPRM and will not be restated here. This final action incorporates the rationale provided in the NPRM and the NODA, except to the extent necessary to reflect any changes in the rationale in response to the public comments.

EPA received multiple comments on the NPRM and adverse comments from two commenters on the NODA. To review the full set of comments received, refer to the Docket for the rulemaking, as identified in the ADDRESSES section of this document. A summary of the comments and EPA's responses are provided below.

Comment 1. The commenter states that the alternative limits for Homer City are greater than the critical emission value (CEV), 4 with no explanation given. The CEV for the three units at Homer City are 6,360 pounds per hour (lb/hr) for all three combined. There are multiple emissions limits in the proposal for Homer City that are higher than the CEV. There is a start-up limit of 9,000 lb/hr, and an alternative limit of 7,300 lb/hr for all units in a transition phase. These limits are higher than the CEV and the commenter believes they would thus lead to NAAQS violations. The commenter argues that the modeling shows that these additional limits would violate the NAAQS.

Response 1. EPA agrees with the commenter that there are multiple SO 2 emission limits for Homer City. However, EPA disagrees that the modeling shows that the alternative limits would result in SO 2 emissions concentrations that violate the NAAQS. The modeling does not include the alternative limits since they are intermittent in nature, and, as explained in more detail later in this preamble, Pennsylvania correctly excluded them from the modeling demonstration.

The Homer City emission limits for start-up, shut down and the Novel Integrated Desulfurization (NID) system transitions are limited to 500 hours combined in any 12-month rolling period. As stated in EPA's March 2011 Memorandum on Additional Clarification Regarding Application of Appendix W Modeling Guidance for the 1-hour NO 2 National Ambient Air Quality Standard (hereafter referred to as the “March 2011 Clarification Memo”)  5 and as specifically referenced in EPA's August 2010 Memorandum on the Applicability of Appendix W Modeling Guidance for the 1-hour SO 2 National Ambient Air Quality Standard, 6 EPA believes the most appropriate data to use for compliance demonstrations for the 1-hour SO 2 NAAQS are those based on emissions scenarios that are continuous enough or frequent enough to contribute significantly to the annual distribution of daily maximum 1-hour concentrations. EPA's modeling recommendations involve a degree of conservatism in the modeling assumptions for demonstrating compliance with the NAAQS by recommending the use of maximum allowable emissions. The intermittent nature of the actual emissions associated with these transitions, when coupled with the probabilistic form of the SO 2 standard, could result in modeled impacts being significantly higher than actual impacts would realistically be expected to be if the maximum allowable emissions were modeled continuously year round.

EPA is concerned that if emissions occurring during intermittent operations are assumed to be occurring continuously, this would impose an additional level of stringency beyond that intended by the level of the standard itself. EPA, therefore, recommended that compliance demonstrations for the 1-hour SO 2 NAAQS be based on emission scenarios that can logically be assumed to be relatively continuous or which occur frequently enough to contribute significantly to the annual distribution of daily maximum 1-hour concentrations. Existing modeling guidelines provide sufficient discretion for states to exclude certain types of intermittent emissions from compliance demonstrations for the 1-hour SO 2 standard under these circumstances.

Pennsylvania's exclusion of the alternative limits for Homer City (which are limited to a combined 500 hours in a 12-month rolling period) in the modeling demonstration follows EPA's guidance regarding intermittent emission scenarios. The modeling demonstration provided by Pennsylvania provides support that the one-hour emission limit that was adopted by Homer City provides for attainment of the NAAQS.

Comment 2. The commenter asks EPA to explain why there are numerous values in micrograms per cubic meter (μg/m 3 ) that have been translated to 75 ppb. The commenter notes in this action EPA is using 1 ppb = approximately 2.619 g/m 3 , 7 and in other EPA documents, the conversion factor of 2.62 was used. The commenter claims that this use of multiple conversion factors is a hindrance in determining if an area has met the standard.

Response 2. The commenter is correct in stating that historically EPA has accepted a range of values for the μg/m 3 equivalent to 75 ppb. In the Round 3 intended designations (82 FR 41903) published September 5, 2017, EPA recognized the need noted by the commenter to identify and apply a consistent value expressed in μg/m 3 that EPA considers equivalent to 75 ppb. At that time, EPA endorsed a value of 196.4 μg/m 3 (based on calculations using all available significant figures). To avoid confusion, EPA is expecting attainment demonstrations to show achievement with concentrations at or below precisely 196.4 μg/m 3 . 8

Comment 3. The commenter asserts that the longer term limits applicable to Seward and Keystone (1) do not follow EPA's 2014 SO 2 Nonattainment Guidance; (2) are not comparably stringent to the one-hour CEV; and (3) are not based on maximum allowable emissions. The commenter argues that approval of these longer term limits would be arbitrary and capricious. The commenter provides the following reasons as to why the emission limits have not followed EPA's 2014 SO 2 Nonattainment Guidance: (1) EPA is proposing to approve longer term emission limits that are higher than the comparably stringent emission limits that are calculated via Appendix C methodology; and (2) EPA is proposing to approve longer term emission limits that were calculated using Appendix B methodology, which was provided in the 2014 SO 2 Nonattainment Guidance to justify the Appendix C methodology. The commenter therefore argues that using Appendix B methodology to calculate emission limits is contrary to the purposes of that Appendix as described in the 2014 SO 2 Nonattainment Guidance. The commenter continues that EPA is now proposing to approve emission limits that are based on a facility's actual historic emissions, instead of maximum allowable emissions. This is unprecedented and does not meet the requirements of 40 CFR 51.112 and 40 CFR part 51 appendix W, which mandates the use of allowable emissions.

Response 3. EPA agrees that Pennsylvania did not employ EPA's SO 2 Nonattainment Guidance Appendix C methodology in developing the longer term emission limits for the Seward and Keystone facilities. EPA also agrees that the longer term emission limits for Seward and Keystone are higher than the emission limits would be if the state used the Appendix C methodology. However, that does not mean that the longer term emission limits are not protective of the NAAQS, nor does it mean that the emission limits are arbitrary and capricious.

EPA's 2014 SO 2 Nonattainment guidance explains how state air agencies might establish emissions limitations for sources such as Seward and Keystone that have averaging periods that are longer than one hour in duration. Appendix W to 40 CFR part 51—Guideline on Air Quality Models, requires modeling conducted in support of SIP limits to be representative of maximum allowable emission rates. In most cases, EPA requires using the American Meteorological Society (AMS)/EPA Regulatory Model or AERMOD near-field dispersion modeling system. While uses of AERMOD for attainment planning purposes generally use a constant emission rate for each source throughout the duration of a simulation, AERMOD can also be run with time-varying emissions, varying for example by month or by hour.

In formulating its 2014 guidance, EPA recognized the challenges of representing allowable emissions for a limit that reflects a longer-term average. EPA recommended an approach which did not require any development of variable emission profiles to represent allowable emissions. Instead, EPA's recommended approach relies on traditional modeling of a constant emission rate, for purposes of determining the 1-hour average emission rate that if adopted as a 1-hour limit would provide for attainment. In normal circumstances, a longer-term average limit at a given level is inherently less stringent than a 1-hour limit at the same level. Therefore, EPA's recommended approach then uses appropriate data, generally taken from the historical record for the pertinent source, to obtain a quantitative estimate of the reduction of a one-hour limit's stringency arising from use of the longer-term average. The ratio derived in this approach (found by comparing the 99th percentile among the longer-term average values in the data set against the 99th percentile among the 1-hour values in the data set) serves as an adjustment factor. In EPA's recommended approach, this adjustment factor is applied to the modeled (1-hour) attaining emission rate, and the resulting, downward adjusted longer-term average emission limit is presumed to have comparable stringency to a 1-hour limit at the modeled emission rate. This approach is described at length in the body of EPA's 2014 guidance (see pages 22 to 39) and delineated as a step-by-step procedure in Appendix C of the guidance. Appendix B of the guidance presents analyses that support EPA's view that longer-term limits that are comparably stringent to their 1-hour counterparts may be expected to yield comparable air quality. 9

EPA has approved several SIPs relying on longer term average limits derived according to these methods. See, for example, 83 FR 4591 (February 1, 2018) (approval of Illinois SO 2 SIP); 83 FR 25922 (June 5, 2018) (approval of New Hampshire SO 2 SIP); 84 FR 8813 (March 12, 2019) (approval of Arizona SO 2 SIP); 84 FR 30920 (June 28, 2019) (approval of Kentucky SO 2 SIP); 84 FR 51988 (October 1, 2019) (approval of Pennsylvania SO 2 SIP for the Beaver County area); 85 FR 22593 (April 23, 2020 (approval of Pennsylvania SO 2 SIP for the Allegheny County area), and 85 FR 49967 (August 17, 2020) (approval of Indiana SO 2 SIP). As part of its 2014 SO 2 Nonattainment Guidance, EPA added that states are not precluded from using other approaches to determine appropriate longer-term average limits (see page 26).

For the Indiana County area, Pennsylvania did not use the methods discussed in the 2014 guidance for deriving its limits, but instead developed a different approach. Therefore, the validity of EPA's recommended approach in the 2014 guidance and the validity of the resulting longer-term average limits when using that approach, which are issues in other rulemakings such as those cited previously, are not at issue in this rule. Instead, at issue in this rule is whether the particular approach applied by Pennsylvania suffices to demonstrate that its adopted and submitted allowable emissions limits provide for attainment as required in CAA sections 110, 172, and 192.

Pennsylvania used conceptually similar approaches for assessing the adequacy of limits for Keystone and for Seward, though selected features of these analyses differ. Therefore, the following first discusses the analysis for Keystone and then discusses the analysis for Seward.

Pennsylvania's different approach for Keystone (as for Seward) began at the same starting point as EPA's 2014 guidance's recommended approach. As recommended by EPA, Pennsylvania determined the 1-hour CEV (9,711 lb/hr) for Keystone using AERMOD. Then, Pennsylvania provided modeling addressing its proposed limit for Keystone using an approach which relies on a large number of AERMOD simulations and an underlying data set that represents recent hourly emissions variability of the source (referred to as RRE Modeling). This approach relies on the expectation that future variability of Keystone while meeting the limit is likely to be similar or less than historic variability given that no major changes are planned for the source ( i.e., no new control equipment, fuel changes, etc.), except for the imposition of a new 24-hour emission limit based on this attainment SIP. EPA analyzed 10 past years of Keystone's emissions and operational data, and the regional transmission organization Pennsylvania-New Jersey-Maryland (PJM) forecasts for future electric demand, which support these suppositions (see the Part 75 Emissions TSD in the docket for this rule).

The hourly modeled emission values were based on actual emissions and determined through a binning approach further described in the RRE Modeling TSD. Keystone has had highly variable emissions in the past. Hourly emissions are less variable in recent years. The source's historic emissions profile was such that the actual emission rate for 15% of the hours per year were above the CEV of 9,711 lb/hr, and those hours fell within 15 days in each month. Because of this pattern, where hourly values above the CEV were clustered together on a limited number of days rather than individually dispersed throughout the year, Pennsylvania created a “rule” in the modeling, whereby the hours over the CEV were modeled in clusters which Pennsylvania calls “high emission event days.” The total amount of SO 2 emissions each day, however, are constrained by a limit which restricts the total pounds of SO 2 emissions, on a 24-hour block average basis, to be at or below 9,600 lb/hr. The hours for which the emissions were modeled above the CEV were not randomly dispersed individually throughout the year because the plant did not and likely will not operate that way in order to meet the limit. Thus, these high emission events were modeled in a way that is representative of the variability in the historic emissions data and in compliance with the allowable emissions limit.

The “rule” constrained the high emission events days to not exceed 9,604 lb/hr on a 24-hour block average; however, not every day was modeled with hourly emission rates resulting in a 24-hour block average at or near 9,604 lbs/hr. As previously described, the historical emissions data demonstrate that not every day is a high emission event day based on the historic variability of the source. Pennsylvania modeled about 50% of the days in a month where hourly SO 2 emissions were always below the CEV value and about 50% of the days in a month as high emission event days where there were at least three hours over the CEV during that 24 hours. The high emission events days included nine days (30% of the days) in a month where the 24-hour averages were near 9,600 lb/hr. The remaining six high emission event days per month experienced three hours of emissions above the CEV, yet emissions during the remaining hours of the day resulted in the 24-hour daily average falling at 6,333 lb/hr for five of the six days and at 8,964 lb/hr for one of the six days. However, the other hours in these days were assigned values at or below the CEV, reflecting the predominance of values below the CEV in the modeled emissions distribution (which in turn reflected the predominance of values below the CEV in the historical record), resulting in daily average emission rates for these days below 9,600 lb/hr. The remaining days (not categorized as high emission events days) had 24-hour daily average emissions between 5,000 lb/hr and 6,200 lb/hr.

Pennsylvania developed 100 different annual emission profiles using the historic data of high emission event days, and randomly assigning the other hourly emissions such that the 24-hour limit of 9,600 lbs/hr is modeled 30% of the days across each month, which is representative of the variation within the historical emissions. These emission files provide a large array of temporally varying hourly emissions which take into account the “rule” where hourly emissions above the CEV are clustered together into high emission event days, representative of the variability in the historic emissions data and are reflective of historic plant operations. Each of the 100 emissions scenarios (each reflecting compliance with the emissions limit) were modeled with five years of meteorological data using AERMOD. For each of the 100 5-year AERMOD simulations for Keystone, the 5-year average of the 99th percentile of the daily maximum 1-hour SO 2 modeled concentrations were below the NAAQS. 10

EPA concludes that this modeling provided enough permutations of emissions and meteorology that we can be reasonably confident that the longer-term limit is protective of the NAAQS. This conclusion is based upon the large number of emission distribution profiles (100), the frequency and distribution of high emission event days, the 9,600 lb/hr 24-hour emission limit modeled 30% of the days per month, emissions inputs reflective of the variability in historic plant operations, and meteorological data (five years of National Weather Service data).

Pennsylvania used the same general modeling approach to support the 30-day rolling average SO 2 emission limit for Seward. First, Pennsylvania determined Seward's CEV of 4,500 lb/hr using AERMOD. 11 Then, using 2016-2018 emissions from Seward, Pennsylvania developed a binned emissions dataset to be used in formulating the inventories modeled in 100 AERMOD simulations. Pennsylvania used a total of 13 bins, including five bins ranging from an upper level of 2,000 lbs/hour to an upper level of 4,500 lbs/hour and eight bins at various ranges above the CEV. Hours without operation were represented as hours with 2,000 lbs/hour, and other hours were represented with the upper level of the applicable bin. The dataset included 2.5% of emissions above the CEV (or 220 hours). This was based on how the plant historically operated while complying with this 30-day limit and how it is expected to operate into the future while in compliance with the 30-day limit. The hours above the CEV were distributed across four high emission events, where the duration of each event was 4, 7, 12, or 16 hours, with the frequency of those events being twice per month, monthly, every six months and once per year, respectively, such that these 220 hours above the CEV were spread across 39 days.

The remaining 97.5% of hourly emissions were below the CEV and randomly assigned throughout the annual emission profile. EPA analyzed 10 past years of Seward's emissions and operational data and PJM forecasts for future electric demand, and understands that no major changes are planned for the source ( i.e., no new emission limits, no new control equipment, fuel changes, etc.) (See the Part 75 Emissions TSD in the docket for this rulemaking). Therefore, EPA believes that the future variability of Seward while meeting the limit is likely to be similar to historic variability.

Pennsylvania calculated a weighted average of the emissions in the binned inventory by multiplying the bin level times the percentage of hours in each bin and summing the results. This sum, representing the average of the modeled emissions, equaled 3,088 lb/hr. Despite minor variations resulting from the random distribution process, each of the 100 AERMOD simulations had approximately this average level of emissions.

Pennsylvania developed 100 different annual emission profiles using the historic data of high emission event days, and randomly assigning the other hourly emissions such that the average of the 30-day averages of each simulation was close to 3,088 lb/hr, which is representative of the variation within the historical emissions. Seward's SO 2 emissions limit of 3,038.4 lb/hr on a 30-day rolling average basis is approximately 50 lb/hr less than the approximate average emissions value used in the AERMOD simulations.

Each of the 100 emissions scenarios (each with average emissions above the limit level) were modeled with one year of site specific meteorological data using AERMOD. For each of the 100 AERMOD simulations for Seward, the 99th percentile of the daily maximum 1-hour SO 2 modeled concentrations were below the NAAQS.

EPA concludes that this modeling provided enough permutations of emissions and meteorology that we can be reasonably confident that Seward's longer-term limit is protective of the NAAQS. This conclusion is based upon the large number of emission distribution profiles (100), the targeted 30-day emissions average value in each simulation being set slightly above the 30-day average limit, model inputs reflective of the variability in historic plant operations (based on EPA's review of 10 years of emissions data) and one year of site specific meteorological data.

Pennsylvania's modeling process is described in Appendix C-1 of the state submittal, in the state's February 5, 2020 supplemental modeling report, in EPA's TSD for the proposed rulemaking entitled “State Implementation Plan Revision: Attainment Demonstration and Base Year Inventory Indiana, PA Nonattainment Area for the 2010 1-Hour SO 2 NAAQS”, dated October 2017 (hereafter referred to as the “October 2017 Modeling TSD”), and EPA's RRE Modeling TSD, which are available in the docket. 12

In regard to the commenter's concern that Appendix B was not meant to provide guidance on how to develop a longer term limit, EPA agrees that neither the Guidance nor Appendix B stated that Appendix B was a recommended approach to develop longer term emission limits. Nevertheless, EPA believes that elements of the methodology used in Appendix B may be used to assess whether a longer term limit could be protective of the NAAQS.

Although the analysis described in Appendix B does not use allowable emissions (insofar as only the maximum 30-day average emissions equal the 30-day average limit), the analyses in Pennsylvania's submittal differ in some respects from the analysis described in Appendix B, and EPA must evaluate Pennsylvania's submittal on its own merits. For reasons described previously, EPA believes that Pennsylvania's modeling provides a suitable demonstration that the plan provides for attainment. Using actual historic operations as a basis for developing the emission rates used in the modeling analysis is in EPA's opinion a reasonable approach. Past actual operations provide the data necessary to develop a representative and realistic range of emission rates to be used in the RRE simulations to assess if Seward's 30-day rolling average limit provides for attainment. Without the bounds of past operations, there are an infinite number of emission scenarios that could fit within Seward's 30-day rolling limit (and to a lesser extent Keystone's 24-hour block limit). For example, Seward could emit 2,186,929 lbs between midnight and one in the morning then 1 lb/hr for the next 719 hours and still meet its limit (it is impossible that Seward can emit at this rate, but this illustrates that there is a wide range of numeric operating scenarios which could still result in compliance with the 30-day average limit). On the other hand, Seward could emit 3,084 lb/hr for 720 hours with no variability and meet its limit. Neither of these scenarios are likely to occur, and thus EPA believes that Pennsylvania has appropriately used historical data to develop a representative distribution of potential future hourly emissions that can be expected to occur when complying with a longer term limit.

In summary, EPA has concluded that Pennsylvania's evaluation of longer term limits using 100 AERMOD simulations provides reasonable confidence that the longer term limits for Keystone and Seward are protective of the NAAQS. Pennsylvania evaluated the likelihood of violations based on random reassignment of emission profiles designed to reflect the historic variability of emissions at each of these plants, and modeled these emission profiles using appropriate meteorological data (1-year of site specific meteorological data for Seward and five years of representative meteorological data for Keystone). Because an hour with emissions above the CEV will not necessarily experience a NAAQS exceedance, Pennsylvania's analysis showing the source's emissions variability, when randomly reassigned to different hours in the year, with a percentage of hours modeled above the CEV, provides evidence that the sources complying with those longer term emission limits will protect the NAAQS.

Comment 4. The commenter states that the 30-day average limit for Seward was calculated contrary to EPA Guidance. The commenter notes that the conversion factor AECOM presented in worksheets of 0.47 was not used, and a conversion factor of 0.60 was used. The commenter asserts that the conversion factors of 0.47 and 0.60 are both too permissive. The commenter provided an analysis which they claim demonstrates that the conversion factor is dependent on the time period used to analyze Seward's emission, and that the 0.47 and 0.60 conversion factors are inconsistent with the actual variability observed in Seward's emissions.

A similar comment was received on the NODA, where the commenter asserted that AECOM failed to employ a conversion factor that “properly reflects the emissions variability” at Seward and ignored EPA's 2014 Nonattainment Guidance Appendix C methodology. AECOM provided a conversion factor of 0.47 that was not used to calculate the longer term limit. Rather, the commenter asserts, AECOM used Appendix B methodology to calculate longer term limits, and the commenter asserts this is against the stated purpose of Appendix B.

Response 4. EPA agrees that the adjustment factor (which the commenter refers to as the “conversion” factor) which was calculated by AECOM of 0.47 using Appendix C methodology was not used to calculate the longer term emission limit for Seward. However, EPA does not agree that an adjustment factor of 0.60 was used. Adjustment factors were not used to develop the emission limit for Seward. In determining whether the longer term limit at Seward was supportive of the NAAQS, Pennsylvania considered variability of the source in a different manner than the recommended Appendix C methodology. As described in Response 3 of this preamble, Pennsylvania used a modeling approach which varied emissions and meteorology in 100 AERMOD simulations to evaluate the adequacy of the 30-day rolling average SO 2 emission limit for Seward.

EPA acknowledges that if EPA's recommended adjustment factor approach is used to convert a shorter term emission limit into a longer term emission limit, the calculated adjustment factor can vary depending on the time period used to analyze the source's emissions, though as a general matter EPA expects that different periods with suitably robust data sets and similar control regimes will have similar variability and calculated adjustment factors. However, the state did not use EPA's recommended approach for developing the longer term emission limit for Seward. The commenter did not explain why its objections to an adjustment factor that was not used are relevant. The question is not whether Pennsylvania used the correct adjustment factor to develop the longer term limit, but whether the longer term limit, which was developed without an adjustment factor, is set at a level which is protective of the NAAQS. Based on the information provided in Response 3 of this preamble, EPA concludes that the 30-day limit for Seward and the 24-hour block limit for Keystone are protective of the NAAQS, and that the commenter's objections related to the un-used adjustment factor are not relevant to this determination.

Comment 5. The commenter asserts that the longer term limits for Seward and Keystone are fundamentally incapable of protecting the 1-hour SO 2 NAAQS. The commenter asserts that an emission limit with an averaging period longer than one hour is highly unlikely to protect the short term standard, and spikes in emissions could cause short term elevations in ambient SO 2 levels sufficient to violate the NAAQS while nonetheless averaging out over a longer period such that the source complies with their longer term limit. The commenter cites to previous EPA documents stating that compliance with emission limits should be determined based on an averaging time consistent with the NAAQS. 13 The commenter asserts that the 30-day emission limit proposed for Seward is 720 times the standard. The commenter provided an assessment of historic hourly emissions from 2011 to 2016 for Seward and concluded that during this period, there were 445 hours in which emissions from the plant exceeded its CEV. The commenter states that because exceedances  14 of the NAAQS can occur if as few as four hours over the course of a year are above 75 ppb, the 30-day proposed emission limit cannot be protective of the NAAQS.

The commenter also states that the 24-hour emission limit proposed for Keystone is also inadequate to protect against violations of the NAAQS. The commenter provided an analysis of historic hourly emissions data from 2011 to 2016 for Keystone  15 and concluded that Keystone had exceeded its CEV 12,830 total hours over the examined period. The commenter argues that given the Keystone and Seward emissions limits are not new requirements, it is questionable that these limits will protect the NAAQS.

Response 5. The commenter is incorrect in stating that Keystone does not have new emission limit requirements. Prior to the attainment plan, the SO 2 emission limit at Keystone was set at 1.2 lb/MMBtu on a 30-day rolling average basis. A new SO 2 limit was established in this attainment plan for Keystone of 9,600 lb/hr average calculated on a 24-hour block basis, a limit which went into effect on October 1, 2018. Therefore, the commenter's reasoning that the Keystone limit will not protect the NAAQS because the past emissions exceeded the CEV 12,830 hours in a six-year period (prior to the adoption of the limit) is based on faulty information. Subsequent evidence indicates, as expected, that imposition of the limit has led to a significant decline in the frequency of emissions exceeding the CEV.

EPA disagrees with the commenter's statement that the proposed 30-day limit for Seward and the 24-hour limit for Keystone are fundamentally incapable of protecting the 1-hour SO 2 NAAQS. Pennsylvania has conducted detailed modeling supporting the view that the distribution of emissions that can be expected in compliance with its requested SIP limits will provide for attainment. The specific examples of earlier EPA statements cited by the commenter ( i.e., those contained in Exhibits 1 and 2 to Appendix A of the comment submission) pre-date the release of EPA's 2014 SO 2 Nonattainment Area Guidance. As such, these examples only reflect the Agency's development of its policy for implementing the 2010 SO 2 NAAQS as of the dates of the issuance of the statements. At the time these statements were issued, EPA had not yet addressed the specific question of whether it might be possible to devise an emission limit with an averaging period longer than one-hour, using appropriate adjustments that would make it comparably stringent to an emission limit shown to attain one-hour emission levels or other possible approaches, that could adequately ensure attainment of the SO 2 NAAQS. None of the pre-2014 EPA documents cited by the commenter address this question; consequently, it is not reasonable to read any of them as rejecting that possibility.

In contrast, EPA's 2014 SO 2 Nonattainment Area Guidance specifically addressed this issue as it pertains to SIP requirements for SO 2 nonattainment areas under the 2010 NAAQS. EPA found that a longer term average limit could be devised such that it is likely to yield attaining air quality under the one-hour NAAQS. See 2014 SO 2 Nonattainment Guidance. While EPA's guidance focuses on a different approach (involving establishment of a longer term average limit that is comparably stringent to the one-hour limit that would otherwise be set), EPA believes that Pennsylvania has made a suitable demonstration that its limits are adequate to provide for attainment.

Any analysis of whether a 30-day or 24-hour average limit provides for attainment must consider factors for reducing the likelihood of 1-hour average concentrations that exceed the NAAQS level as well as factors creating a risk of additional concentrations that exceed the NAAQS level. To facilitate this analysis, EPA used the concept of a CEV for the SO 2 -emitting facilities which are being addressed in a nonattainment SIP. The CEV is the continuous 1-hour emission rate which modeling shows is expected to result in the 3-year average of annual 99th percentile daily maximum 1-hour average concentrations being at or below 75 ppb, which in a typical year means that fewer than four days have maximum hourly ambient SO 2 concentrations exceeding 75 ppb. See 2014 SO 2 Nonattainment Guidance.

EPA recognizes that a 30-day or 24-hour average limits can allow occasions in which hourly emissions from the source exceed the CEV, and such occasions yield the possibility of ambient concentrations exceeding the NAAQS level that would not be expected if emissions were always at the CEV. At the same time, the establishment of the longer term average limit at a level below the CEV means that emissions must routinely be lower than they would be required to be with a 1-hour emission limit set at the CEV.

As described in detail in Response 3 of this preamble, the RRE modeling runs submitted by Pennsylvania specifically modeled “high emission events” at Keystone and Seward where the hourly emissions exceeded the CEV. The RRE modeling used the distribution of past hourly SO 2 emissions, with a certain number of hours over the CEV (15% of the hours at Keystone and 2.5% of the hours at Seward were modeled with emissions over the CEV). For each facility, the emissions in the resulting emission profiles were randomly reassigned to develop 100 hourly emission files for use in 100 AERMOD simulations. The AERMOD simulations were conducted with the same general methodology as the air dispersion modeling for the CEVs, except that the hourly emission files, for either Keystone or Seward, replaced the CEV in AERMOD. All of these AERMOD simulations resulted in maximum 1-hour SO 2 design concentrations equal to or less than the NAAQS, which provides sufficient support for EPA to assert that the longer term emission limits for Seward and Keystone are protective of the NAAQS.

While the commenter claims that emissions above the CEV will cause NAAQS violations, no analysis has been provided to support this assertion. In contrast, Pennsylvania did provide a detailed modeling analysis which specifically showed that the longer term limits for Seward and Keystone, including a percentage of hours over the CEV, provide for attainment. A more detailed discussion of the hourly emissions data for Seward and Keystone and the RRE analysis is provided in the Part 75 Emissions TSDs, the Supplemental Modeling TSD and the RRE Modeling TSD found in the docket for this action.

Comment 6. The commenter states that EPA's justification for Pennsylvania's use of the Appendix B methodology for developing longer term emission limits is nonsensical and contrary to EPA's 2014 SO 2 Nonattainment Guidance. The commenter cites EPA's Guidance, which suggests that longer term emission limits are most appropriate where periods of hourly emissions above the CEV are a rare occurrence at a source, particularly if the magnitude of the emissions is not substantially higher than the CEV. These periods of time over the CEV would be unlikely to have a significant impact on air quality, because they would be very unlikely to occur repeatedly at the times when the meteorology is conducive for high ambient concentrations of SO 2. However, the commenter indicates that in the TSD for the NPRM, EPA states that a survey of emissions from 2014-2016 for Keystone showed hourly emissions exceeded the CEV quite frequently and therefore Appendix B was chosen to model attainment. The commenter argues that reasoning is nonsensical.

Response 6. EPA's 2014 SO 2 Nonattainment Guidance provides recommendations, but does not require states to follow the guidance in each aspect of their submittal. The state may decide to use a different approach than recommended by EPA, and it is EPA's role to determine if that approach and the result is reasonable and protective of the NAAQS. In this case, the state used elements of the methodology described in Appendix B to demonstrate that the longer term limits for Keystone are protective of the NAAQS. Regardless of the state's reasoning for using that approach, EPA must judge the state's submittal.

EPA's proposal that the SO 2 emission limits at Keystone are protective of the NAAQS relies upon Pennsylvania's RRE modeling analysis. Pennsylvania's SO 2 limits with averaging periods of longer than one-hour can provide sources flexibility to deal with the inherent variability in their SO 2 emissions and emission control systems.

Pennsylvania submitted RRE model simulations that calculate design values over the model receptor grid based on varying hourly emissions that for Keystone exceeded the 1-hour CEV emission rate approximately 15% of the hours in a year. The RRE simulations allow the model to determine if the total contribution to the averaged design value by the hours exceeding the 1-hour CEV, when considered along with the hours in which emissions are below the 1-hour CEV, and in compliance with the target emission limit, would result in a modeled NAAQS violation. Pennsylvania developed 100 sets of hourly emission data sets where Keystone's peak daily average emission rate was equal to a target value of 9,600 lb/hr (the new SO 2 24-hr emission limit), 85% of the hours were modeled below the CEV, and 15% of the hours were modeled above the CEV. The RRE evaluation shows compliance with the NAAQS since all 100 simulations return modeled design values less than or equal to 75 ppb. If the modeled emission limits were not protective, the RRE test would show modeled design values above the 1-hour SO 2 NAAQS.

Because Pennsylvania did not follow the approach in Appendix C from EPA's SO 2 Nonattainment Guidance to develop the longer term limit for Keystone, this analysis was the evidence EPA relied on to determine that the longer term limit for Keystone was protective of the NAAQS. In any case, more recent evidence indicates that Keystone's compliance with its new limit will result in substantially fewer hours when emissions exceed the CEV. For example, in 2019, after the limit took effect, only 35 hours exceeded the CEV, representing 0.4% of the 8,623 operating hours during the year.

Comment 7. The commenter asserts that AECOM's modeling erroneously splits the nonattainment area into two modeling domains, and thus does not adequately assess the impacts of the four electric generating units (EGUs) together. The commenter points out that the modeled peak impact for Armstrong County of 192.3 μg/m 3 is due to Keystone impacts only, and does not include impacts from the other three EGUs. The commenter notes that the maximum modeled concentration from Seward  16 of 194.44 μg/m 3 occurs just over the border between Indiana and Armstrong Counties on the Indiana County side, and that simulation includes all four EGUs. The commenter thinks that both results cannot be true: Either the maximum impact reported for Seward is incorrect because it considers all four EGUs or the modeling in Armstrong County needs to include all four EGUs. The commenter also argues that EPA used an incorrect rationale for approving the two separate modeling domains. Specifically, the commenter is concerned that the wind rose provided in the TSD shows that winds having a southeasterly component occur approximately 15% of the time, which they claim is not “infrequent,” as EPA describes in that TSD. Also, the commenter takes issue with the fact that the background concentrations used in the two modeling domains are different—while the same monitor is used, the dates from the monitoring values are different (2014-2016 vs. 2013-2015). The commenter believes that the same date range should be used.

Response 7. EPA disagrees that the nonattainment area was erroneously split into two modeling domains and that this splitting of the nonattainment area into separate modeling domains would not correctly consider the joint impacts of all four sources included in the Indiana, PA SIP modeling demonstration. EPA believes that modeling two domains was warranted in this case based on the justification provided by Pennsylvania in Appendix C-1a (AECOM's SO 2 NAAQS Compliance Modeling Report for the Indiana, PA Non-Attainment Area: Phase 1 Modeling (Revision No. 1)) of the state's submittal. EPA believes that the commenter misunderstands the model results for Seward and Keystone based on the fact that the commenter noted that the maximum modeled concentration from Seward was 194.44 μg/m 3 , which is actually the peak modeled concentration around Keystone. 17

EPA will further explain the reasoning for the use of the split modeling domains and the reasons supporting EPA's conclusion that the use of two modeling domains in this case is appropriate. The nonattainment area was divided into two modeling domains; one covering portions of Armstrong County surrounding Keystone, and one covering all of Indiana County. In the Armstrong domain, Pennsylvania modeled Keystone as the only source. In the Indiana domain, Pennsylvania modeled all four SIP sources. EPA agrees with this approach because of the long aerial transport distances (for SO 2 ) between Keystone and the remaining SIP sources in Indiana County, and the prevailing wind directions in the Area.

The distances between Keystone and the remaining SIP sources are greater than 10 kilometers. From EPA's March 2011 Clarification Memo, “ . . . the emphasis on determining which nearby sources to include in the modeling analysis should focus on the area within about 10 kilometers of the project location in most cases. ” The distance between Keystone and Homer City is approximately 20.5 kilometers, between Keystone and Conemaugh is approximately 38.9 kilometers and between Keystone and Seward Station is approximately 38.3 kilometers. Therefore, it was reasonable for Pennsylvania to model Keystone in a separate modeling domain.

EPA's clarification memo continues, “ [T]he routine inclusion of all sources within 50 kilometers of the project location, the nominal distance for which AERMOD is applicable, is likely to produce an overly conservative result in most cases. ” EPA believes that including all four sources in the Keystone modeling domain would have been overly conservative.

When modeling all four sources, the peak model concentration is located approximately four km northeast of Keystone. This would be the result of plant emissions being blown from winds out of the southwest (from Keystone's stack towards the peak model receptor). Emissions from Conemaugh, Homer City and Seward would be transported in a similar direction, i.e. to locations far away from the peak receptor near Keystone. Evaluative modeling conducted by AECOM (Appendix C1-a of the SIP submittal) confirmed the minimal impact of these three sources in the vicinity of Keystone. Specifically, the modeling shows that the peak modeled concentration contains a fractional contribution (0.6%) from the other three SIP sources even under circumstances where those plant's emissions would have been advected in an almost opposite direction. Given this result, and since it is logical to conclude that when winds are blowing from the southwest, emissions would not be transported in the northwesterly direction, EPA believes it was appropriate to exclude contributions from Conemaugh, Homer City and Seward in modeling the area around the Keystone plant.

In regard to the commenter's concern regarding the use of different background concentrations in the two modeling domains, EPA believes the state's use of a higher background concentration in the Keystone only modeling domain provides a level of conservatism that, while not required, provides additional assurances that the Keystone limits are protective of the NAAQS. The higher background concentration was from a period of time from 2013-2015, prior to the installation of SO 2 controls on Homer City and during a time with higher regional SO 2 background concentrations. Homer City is the closest of the three sources outside the modeling domain. The inclusion of these potential impacts was considered to provide a more conservative analysis. While Pennsylvania could have used more updated background concentrations reflecting a decrease in impacts from Homer City (and from all SO 2 sources), the state submitted a more conservative analysis to show that even if the background concentrations were higher than recent background data, the modeling results are within the NAAQS.

For model receptors in Indiana County, all four sources were modeled with newer regional background reflecting reduced emissions from Homer City due to new SO 2 controls. The use of newer background concentrations (2014-2016) is warranted since it provides a more accurate depiction of reality. Current background concentrations are even lower  18 than in 2016 (mainly due to reduced regional SO 2 emissions), providing additional support that the plan provides for attainment. Pennsylvania provided more recent background values in the Supplemental Submittal of February 5, 2020.

Comment 8. GenOn (owner and operator of Conemaugh and Keystone) was advised by EPA that the absence of a site-specific study would not, in of itself, preclude the use of AERMOIST for the Indiana Area SIP provided that other site-specific studies conducted elsewhere demonstrated the applicability and effectiveness of AERMOIST in providing improved model results. Consequently, based on EPA's guidance, GenOn and their modeling contractor, AECOM, proceeded with the companion modeling effort that utilized AERMOIST.

Response 8. EPA acknowledges the detailed responses regarding AERMOIST provided during the public comment period (see next comment). EPA's analysis of possible shortcomings of the AERMOIST plume module was outlined in a December 27, 2017 response to Pennsylvania's request to use AERMOIST as an alternative model under Appendix W. At that time, EPA had determined that use of the AERMOIST plume module was not approvable under section 3.2.2 of Appendix W and that the (higher) limits established using AERMOIST were not protective of the 1-hour SO 2 NAAQS.

EPA continues to believe that the use of AERMOIST is not an appropriate basis for evaluating emission limits in the Indiana, PA nonattainment area.

Comment 9. The commenter asserts that in an EPA White Paper, EPA agreed with the physical and theoretical merits of the AERMOIST hypothesis, specifically that AERMOD does not account for the effects of plume moisture. Plume moisture tends to increase plume rise over that for a “dry” plume because the condensation which occurs when water vapor in a moist plume condenses upon leaving the stack, releasing heat as part of the condensation process. The commenter provided a presentation (which was previously shared with EPA) that responds to the deficiencies of AERMOIST that EPA pointed out to them. The commenter asserts that EPA has acknowledged that AERMOD in default mode is deficient in not addressing the real effect of moisture in the plume, so there is merit in pursuing the AERMOIST approach. Therefore, the commenter concludes that AERMOIST should be considered as an “ALPHA” procedure, which means that as an “experimental” procedure, AERMOIST has scientific merit, but is not yet ready for regulatory applications.

Response 9. EPA acknowledges the analysis provided by the commenter regarding the AERMOIST plume module. As noted previously, application of AERMOIST in the Indiana, PA modeling demonstration has not been justified. The commenter appears to acknowledge that AERMOIST has not been demonstrated to warrant being used in regulatory applications such as in Pennsylvania's SO 2 attainment plan. The comment regarding designation of AERMOIST as an alpha procedure is outside the scope of this rulemaking.

Comment 10. The commenter asserts that AECOM used erroneous assumptions and methods in their modeling analysis and EPA's reliance on this modeling would be arbitrary and capricious. The commenter claims the following aspects of the modeling analysis are incorrect:

1. The receptor grid used by AECOM has glaring areas of no coverage including the area around Homer City and the area across the Indiana County border right next to Seward and Conemaugh. This is a particular problem for Seward and Conemaugh as the emissions from those sources cause attainment problems both inside the nonattainment area and east and southeast of the plants (outside the nonattainment area).

2. The AECOM modeling used fixed stack parameters and ignored differences in the plume loft and dispersion that would occur at different gas exit temperatures and velocities. AECOM plotted SO 2 emissions vs. temperature, and SO 2 emissions vs. gas velocity, and both data sets showed a variation in the variables as a function of emissions. Data from Conemaugh and Homer City stacks are absent. In addition, the data for Seward and Keystone that are presented (SO 2 emissions and temperature/velocity) are not directly correlated, and the link that would correlate them (boiler operation) is not provided or taken into consideration.

3. The emissions modeled in the randomized modeling for Keystone are improper because they do not account for the actual historic emissions practices at the plant. The data provided by the commenter show that approximately 25% of the hours for 2011 through 2016 were above the CEV, while the modeling only included emissions over the CEV 15% of the time.

4. Only one meteorological data source was used for modeling all four EGUs, rather than selecting the most appropriate meteorological data for each source. EPA should have insisted on a meteorological data sensitivity analysis to ensure the model results were not driven by the meteorological data source selection. Johnston airport is not in the nonattainment area and is a significant distance from several coal-fired power plants and the Strongstown monitor. It lies 16 miles south-southeast of the monitor. DEP could have considered the Jimmy Stewart Airport which is located in Indiana County. The model results could be affected by the differences in wind speed and direction at these airports. Wind roses for each airport were provided. EPA should do the modeling again using the closer meteorological data.

To summarize, the commenter states that these modeling issues are not trivial and notes that when these model assumptions are used, each facility, itself causes exceedances of the NAAQS.

Response 10. EPA disagrees with the commenters' points as follows:

1. Regarding model receptors surrounding the Homer City power plant, this item was brought up (and fully addressed) during Pennsylvania's public comment period. EPA finds Pennsylvania's response fully adequate (see response to comment 11 in Pennsylvania's Comment Response Document). The modeling analysis did include model receptors “. . . along the public roads which pass through the facility, specifically, Coal Road, Power Plant Road, Cherry Run Road, and Quarter Center Road.” Homer City has also properly established that it has ownership and imposed proper public access control protocols that support its modeled ambient air boundary. Additionally, due to Homer City's tall stacks, local peak model concentrations occur well beyond the plant's ambient air boundary (see Figure 5-7 of Appendix C-1a of the Commonwealth's submittal) indicating model receptors within the area highlighted by the commenters probably do not exceed the source generated local concentration peaks mainly due to the GEP oriented stack height. GEP formula height for all three stacks is 298.62 meters above local ground elevations.

The commenter's concern that no model receptors outside of the Indiana nonattainment area boundaries were included in Pennsylvania's modeling demonstration showing SO 2 attainment within the nonattainment area is outside the scope of this action. The boundaries of the Indiana, PA nonattainment area were set and made final in August 2013 in “Round One” of EPA's designations for the 2010 SO 2 NAAQS, and these boundaries were not challenged. 19 Pennsylvania's obligation under section 110(a) of the CAA is to submit “. . . a plan which provides for implementation, maintenance, and enforcement of such primary standard in each air quality control region (or portion thereof) within such State.” CAA section 110(a)(1). Section 110 further provides that “[i]n the case of a plan or plan revision for an area designated as a nonattainment area, meet the applicable requirements of part D of this subchapter (relating to nonattainment areas).” CAA section 110(a)(2)(I). Section 172(c)(6) then requires the SIP for a nonattainment area to include enforceable emission limitations and control measures as necessary or appropriate to provide for NAAQS attainment “in such area.” CAA section 172(c)(6). In this case, Pennsylvania's attainment plan for the Indiana area includes limits on SO 2 sources and a modeling demonstration showing that SO 2 concentrations throughout the Indiana nonattainment area are at or below the NAAQS. While section 110(a)(2)(D) contains provisions requiring that a state's SIP contain provisions to avoid causing or contributing to nonattainment or maintenance in another state, the Commenter does not cite any statutory or regulatory requirements or EPA guidance that a state must include modeling receptors outside of a nonattainment area in an attainment plan. Further, EPA's role is limited to determining whether the submitted SIP meets the requirements of the CAA, see section 110(k), and Pennsylvania's SIP does not address areas outside the defined nonattainment area. Absent a clear requirement that Pennsylvania must include model receptors outside of the nonattainment area in its submission, EPA will confine its analysis to whether the attainment SIP demonstrates attainment within the designated nonattainment area.

Although some of the modeling submitted by the commenter purports to show SO 2 concentrations outside of the boundaries of the Indiana, PA nonattainment area that are above the SO 2 NAAQS, primarily in Cambria and Westmoreland Counties to the east, Pennsylvania was required to develop and submit an SO 2 attainment demonstration SIP only for the Indiana, PA nonattainment area, which does not include these counties. Prior to making its final round one designations, EPA invited interested parties other than the states and Tribes to submit comments on the proposed designations of these areas, including the boundaries of these areas. 78 FR 11124 (February 15, 2013).

2. The commenter's concern regarding not accounting for source variability in stack temperatures and velocities was also raised during the Pennsylvania public comment period. EPA believes Pennsylvania's response is adequate for the commenter's concern and information supporting their conclusions was provided as part of Pennsylvania's SIP package (see Comment Response Document, response to comment 12). EPA generally agrees with Pennsylvania's observation that while stack velocities (and sometimes stack temperatures) decrease under loads less than 100% or the facility's peak load, the emission reductions for boiler loads lower than 100% more than offset any reduction in stack plume-height and dispersion caused by lower plume lofting due to lower exit velocities and lower temperatures. Additional information included in AECOM's modeling reports clearly show stack temperatures and exhaust parameters are relatively uniform across different emission ranges, which supports using constant values in the modeling analysis.

3. Pennsylvania analyzed the heat input for years 2014 through 2016 for Keystone. Station operations in 2016 represented the average of station operations over the three-year period from 2014 through 2016 (heat input-based capacity factors of 74%, 64% and 69% for 2014, 2015 and 2016, respectively), therefore the 2016 emission cumulative frequency plot was used in the analysis to derive the emissions input to the 100 AERMOD simulations. EPA analyzed the last ten years of heat input and notes that the heat input has been relatively stable.

The commenter is evaluating the likelihood of emissions exceeding the CEV based on data before Pennsylvania's limit took effect. EPA has analyzed the hours over the CEV for the last 10 years and notes a downward trend. More importantly, the newly developed SIP limit for Keystone went into effect on October 1, 2018, which can be expected to cause a reduction in the frequency of emissions exceeding the CEV. Indeed, the available evidence indicates that this has already occurred. Data from 2018 and 2019 indicates that Keystone emissions are now exceeding the CEV for only about 1 percent of the hours. EPA believes the new emission limit provides a constraint that will result in the frequency of hourly emissions over the CEV being considerably less than 15% of the time. While EPA believes that the 2016 data provide a good basis for formulating the anticipated shape of the future distribution of emissions, including assessing the variability of emissions (particularly as it pertains to the spread among the emission rates in the upper portion of the distribution, which are of most interest for air quality planning purposes), EPA does not believe that modeling with 25 percent of hours exceeding the CEV would appropriately reflect emissions in compliance with Pennsylvania's limits. A more detailed discussion of EPA's analysis of Keystone's emissions and heat input is included in the Part 75 Emissions TSD.

4. The use of the Johnstown-Cambria County airport as the source of meteorological data for the modeling analysis has been adequately justified. The possibility of using the Indiana County (Jimmy Stewart) airport data was addressed in Pennsylvania's comment response document (see comment 9 and response). In addition to Pennsylvania's response, EPA asserts that using a site in lower terrain, such as the Indiana County airport, may provide unrepresentative wind speeds for the modeling analysis. The Johnstown-Cambria County airport sits in elevated terrain along the Allegheny Front to the east of the Indiana, PA nonattainment area. Due to its elevation, the Johnstown-Cambria County airport experiences relatively sustained wind speeds. One of the reasons this airport was chosen was because its elevation is closer to the exit height of the elevated stacks that are included in the Indiana, PA modeling demonstration.

Pennsylvania submitted additional site-specific meteorological data on February 5, 2020 which was collected near the Seward and Conemaugh stations. This meteorological data is called the Ash Landfill Tower data and is more representative of the meteorology in the vicinity of Seward and Conemaugh. EPA compared the new Ash Landfill Tower data  20 to the Johnstown-Cambria County airport data which demonstrated that more sustained wind speeds aloft are clearly evident. Ash Landfill Tower wind speeds from the lowest level (10-meters) tend to be lighter during the overnight hours and suggest that wind speeds at lower elevation sites, such as the Jimmy Stewart airport the commenters suggested, may not be representative of wind speeds near the exit heights of the stacks for the four coal and waste-coal fired facilities in the SIP modeling demonstration (see 500-m Ash Landfill SODAR wind speeds vs the Johnstown-Cambria County Airport wind speeds).

Comment 11. The commenter questions the purpose of EPA's Emissions Inventory Technical Support Document and requests a robust analysis and discussion of the emissions so the public can understand why the emissions information provided by the state is acceptable.

Response 11. Pennsylvania submitted their attainment and projection year emission inventories in accordance with EPA's 2014 SO 2 Nonattainment Guidance. The guidance states that air agencies should develop a comprehensive, accurate and current inventory of actual emissions from all sources of SO 2 in the nonattainment area, as well as any sources located outside the nonattainment area which may affect attainment in the area as required under the Clean Air Act section 172(c)(3). EPA verified all emissions that were submitted by Pennsylvania against the 2011 National Emissions Inventory (NEI) version 2 and found them to be acceptable.

For the attainment year inventory, EPA's 2014 SO 2 Nonattainment Guidance explains that the inventory should reflect projected emissions for the attainment year for all SO 2 sources in the nonattainment area, taking into account emission changes that are expected after the base year. For point sources, Pennsylvania projected emissions from 2011 to 2018 based on the anticipated 2018 operating scenario for each facility. For the nonpoint and nonroad emission projections, Pennsylvania submitted projected inventories developed by the Mid- Atlantic Regional Air Management Association (MARAMA), which are documented in the TSD found in Appendix A-1 of the Attainment Plan. Onroad emission projections were developed by Michael Baker Corp. and are also detailed in Appendix A of the Attainment Plan. Point Source emissions account for approximately 95% of the emissions in the NAA. EPA compared the 2018 projected actual emissions with the actual point source emissions in the most recent 2017 NEI for all point sources in the NAA, and the projected emissions are conservative ( i.e. higher) when compared to actual emissions from the NEI. EPA also compared nonpoint, nonroad, and on-road emissions from the 2017 NEI and found the 2018 projected emissions to be conservative in comparison.

Comment 12. The commenter provided modeling analyses of Seward and Conemaugh's emission limits using the same meteorological data, the same stack parameters, the same background concentrations, and the same building downwash data as did Pennsylvania/AECOM. The commenter used emissions inputs from actual historical emissions from a variety of time periods between 2013 through quarter one of 2018 (EPA's Air Markets Program Database) and used a finer receptor grid around Seward and Conemaugh and included receptors outside the Indiana nonattainment area. The commenter modeled the CEVs and asserts that EPA cannot approve this SIP because the commenter's modeling demonstrates emission limits for those facilities are too lax and will not ensure attainment of the NAAQS. Modeling results for four separate date ranges were provided: 2013-2015, 2014-2016, 2015-2017, and 2013-2017.

Response 12. EPA agrees with the commenter that their modeling demonstrated that the CEV for Seward was too high because one receptor in the southeast corner of the nonattainment area exceeded the standard. However, EPA does not agree that the commenter's modeling demonstrates that the emission limits for Seward and Conemaugh are too lax. As a result of this comment, on February 5, 2020, Pennsylvania submitted an additional analysis showing compliance within the southeast portion of the Indiana, PA nonattainment area (near the Conemaugh and Seward power plants) where the commenter's modeling analysis had shown a modeled violation of the 1-hour SO 2 NAAQS at one receptor. This new analysis used one year (September 2015 through August 2016) of meteorological tower/SODAR (Sonic Detection and Ranging) data collected at the Ash Landfill site (located in Indiana County between the Conemaugh and Seward power plants), which is more representative of local conditions. The CEV model runs for Seward and Conemaugh were updated using this site-specific meteorological data and updated, more accurate background concentrations, plus a refined modeling grid to better resolve the commenter's modeled violation. The newly submitted CEV for Seward is 4,500 lbs/hr; the Conemaugh CEV did not change.

To better understand the reduction in Seward's CEV, EPA analyzed the changes in the model inputs for the supplemental analysis through an iterative process. A summary of the changes and the resulting model concentrations is provided in Table 3.

When EPA used the same inputs as the commenter's except replaced the receptor grid with the Pennsylvania supplemental grid, EPA's analysis produced a peak concentration over 300 µg/m 3 as opposed to the commenter's concentration of 213 µg/m 3 . In the next iteration, EPA used the supplemental grid, and the Ash Landfill meteorological data, and the concentrations in the area of the original modeled violation went below the NAAQS and the maximum modeled concentration now occurred in a location north-northeast of the Conemaugh and Seward power plants in East Wheatfield Township near Robindale Heights.

Finally, EPA completed a model run with all the updates from the supplemental modeling: The Ash Landfill met data, supplemental receptor grid, and updated background concentration from 2016-18. When all the updates were modeled, Seward's 1-hour modeled CEV (for the supplemental run) had to be reduced (about 11% from the original modeling analysis) to show compliance with the NAAQS. A detailed description of EPA's analysis can be found in the June 2020 Supplemental Modeling TSD (Appendix B).

Based on the AERMOD simulations provided which show that no receptors in the nonattainment area exceed the NAAQS, EPA believes the revised CEV for Seward and the pre-existing CEV for Conemaugh are protective of the 1-hour SO 2 NAAQS.

Pennsylvania submitted updated RRE model simulations using the site-specific Ash Landfill meteorological data, updated receptor grid, updated background concentration, and updated operating information (2016-2018) at Seward. The 30-day emission limit for Seward is below the newly submitted CEV, and the updated RRE modeling provides evidence that this limit is protective of the NAAQS (as described in Response 3). EPA solicited public comments on this updated modeling in a notice of data availability published on March 9, 2020 at 85 FR 13602. A more detailed analysis of the RRE modeling for Seward is provided in the February 2020 RRE Modeling TSD.

Comment 13. The commenter asserts that the SIP is not approvable because the AECOM modeling is improperly based on “representative future operations” that are not enforceable. The modeling evaluated hourly emissions from 2014 through 2016 and assumed similar future operations in its 100 RRE model simulations. However, the commenter argues that there is no mechanism proposed (enforceable or otherwise) to ensure future distribution of emissions do not change such that a NAAQS violation would occur.

Response 13. While the comment is somewhat ambiguous, EPA interprets this comment to express concerns that the modeled emissions reflect a variability that may not occur in the future. Other comments by this commenter discussed previously spoke more precisely to maximum allowable emissions; those comments were answered previously. EPA is expecting states to set limits that reflect expected normal degrees of variability (at the 99th percentile level). 21 EPA does not believe that the constraints on operation inherent in restricting emissions distributions are workable, warranted, or appropriate. EPA believes that air quality is likely to be relatively insensitive to differences among normal emission distributions. In addition, the intention of allowing longer term SO 2 limits was to provide sources some degree of operating flexibility while still attaining the 2010 SO 2 NAAQS. Requiring that the sources maintain a specific emission profile would greatly hamper any flexibility provided by a longer term limit.

EPA believes the RRE modeling provided by Pennsylvania in the original submittal and supplemented on February 5, 2020 provides the technical evidence that the longer term emission limits ( i.e., 30 day rolling average and 24-hour average) at Seward and Keystone are protective of the NAAQS. EPA agrees that the future distribution of hourly emissions for either source will not be exactly the same as those modeled in the RRE demonstration, but does not agree that an enforceable mechanism is required to ensure that the future distribution of emissions do not change. EPA believes that the longer term limits provide the constraints necessary to protect the NAAQS.

The commenter did not provide any analysis, modeling or otherwise, showing that adherence with these limits with a different emissions distribution would violate the NAAQS.

The commenter may be assuming that future operations at Seward and Keystone would change significantly in a way that generates much higher hourly SO 2 emissions than those observed over the RRE emission survey years, even while complying with their emission limits. If so, no justification or analysis was provided to support such an assumption. EPA believes that even if this source operates at higher heat inputs in the future, the emission limits will constrain operations and continue to provide protection of the NAAQS. Nonetheless, EPA researched the regional transmission organization's (PJM's) projected electric demand and analyzed historic emission trends at Seward and Keystone to better understand the potential for a change in emissions in the future. Based on the review of PJM forecasts, EPA contends that it is highly unlikely that Seward or Keystone will operate at much higher levels in the future. Furthermore, hourly operations and emissions data from Keystone and Seward collected under part 75 of the CAA also show no long-term increase in operating levels (total hours of operation and MMBtu/hr) over the past 10 years. Both of these sources of information strongly suggest that the plants will not increase their hours of operation or level of operation. EPA further finds no reason to believe that the shape of the distribution of these plants' emissions will change in a way that indicates greater variability. EPA's assessment of this data is available in the Part 75 Emissions TSD available in the docket for this action.

Comment 14. The commenter asserts that EPA's proposed approval fails to meet the CAA statutory deadline for issuing a Federal Implementation Plan (FIP) because the SIP was not approved by March 8, 2018 (two years after EPA issued a finding of failure to submit), and EPA must impose sanctions on Pennsylvania for failing to submit a lawful, approvable SIP.

Response 14. The comment raises issues that are not relevant to the action EPA must take here, which is to either approve or disapprove the submitted SIP. In regard to EPA's failure to issue a FIP, EPA believes that the most expeditious way to bring this area into attainment and maintain attainment is to approve the submitted SIP with the limits and restrictions adopted by the Commonwealth, making those limits and restrictions Federally enforceable and obviating any need for EPA to issue a FIP. We also note that neither the commenter nor any other entity has undertaken any effort to enforce a duty to promulgate a FIP for this area.

EPA disagrees with the commenter that sanctions should have been applied in this case because, as discussed in the NPRM, the sanctions clock that was started by Pennsylvania not timely submitting its SIP was turned off when EPA determined that Pennsylvania subsequently submitted a complete SIP on October 13, 2017. See CAA 179(a); see also 40 CFR 52.31(d)(5) (a sanctions clock started by a finding of failure to submit a required SIP will be permanently stopped upon a final finding that the deficiency forming the basis of the finding of failure to submit has been corrected).

The result of EPA's final approval of the Indiana, PA attainment plan will be to make Federally enforceable the 24-hour average SO 2 limits at Keystone Station and the contingency measures for all four sources. The emission limits at Homer City, Conemaugh, and Seward were already Federally enforceable, and are also being incorporated into the SIP for purposes of permanently attaining the SO 2 NAAQS.

Comment 15. The commenter expresses concern with the RACM/RACT and contingency measures, questioning how EPA can incorporate the unredacted portions of Homer City's Plan approval, which lists an expiration date of August 28, 2017, and Seward's Title V Operating Permit, which lists an expiration date of February 11, 2017. The commenter asks EPA to explain why not all of the consent orders have compliance parameters and why the contingency measures appear to be compliance parameters.

Response 15. EPA acknowledges that expiration dates were inadvertently included in the unredacted portions of Homer City's Plan approval and Seward's Title V Operating Permit. Pennsylvania has submitted corrected redacted permits which redact the expiration dates, such that the limits may be considered permanent. These corrected permits will be incorporated into the SIP, and will remain in effect unless and until Pennsylvania submits a SIP revision seeking changes to these incorporated permit terms and EPA approves such revisions after evaluating whether such a revision would interfere with NAAQS attainment, as required by CAA section 110(l). EPA also notes that the SO 2 emission limits listed in these permits for Homer City and Seward did not actually expire on the dates listed in the originally submitted permits. Both permits were properly extended per the state permitting requirements and Title V of the CAA.

Concerning the request for an explanation of why contingency measures appear to be compliance parameters, EPA notes that the 2014 SO 2 Nonattainment Guidance describes special features of the pollutant SO 2 and therefore SO 2 planning that warrant the adoption of alternative means of addressing the requirement in section 172(c)(9) for contingency measures. The control efficiencies for SO 2 control measures are well understood and are far less prone to uncertainty than for other criteria pollutants. Because SO 2 control measures are based on what is directly and quantifiably necessary to attain the SO 2 NAAQS, it would be unlikely for an area to implement the necessary emission controls yet fail to attain the NAAQS. See 2014 SO 2 Nonattainment Area Guidance, page 41. Therefore, for SO 2 programs, EPA has explained that contingency measures can mean that the air agency has a comprehensive program to identify sources of violations of the SO 2 NAAQS and to undertake an aggressive follow-up for compliance and enforcement, including expedited procedures for establishing enforceable consent agreements pending the adoption of the revised SIP. EPA believes that this approach continues to be valid for the implementation of contingency measures to address the 2010 SO 2 NAAQS, and consequently concludes that Pennsylvania's comprehensive enforcement program, as discussed later, satisfies the contingency measure requirement.

Pennsylvania has a comprehensive enforcement program as specified in Section 4(27) of the Pennsylvania Air Pollution Control Act (APCA), 35 P.S. § 4004(27). Under this program, Pennsylvania is authorized to take any action it deems necessary or proper for the effective enforcement of the Act and the rules and regulations promulgated under the Act. Such actions include the issuance of orders (for example, enforcement orders and orders to take corrective action to address air pollution or the danger of air pollution from a source) and the assessment of civil penalties. Sections 9.1 and 10.1 of the APCA, 35 P.S. §§ 4009.1 and 4010.1, also expressly authorize Pennsylvania to issue orders to aid in the enforcement of the APCA and to assess civil penalties.

Any person in violation of the APCA, the rules and regulations, any order of PADEP, or a plan approval or operating permit conditions could also be subject to criminal fines upon conviction under Section 9, 35 P.S. § 4009. Section 7.1 of the APCA, 35 P.S. § 4007.1, prohibits PADEP from issuing plan approvals and operating permits for any applicant, permittee, or a general partner, parent or subsidiary corporation of the applicant or the permittee that is placed on PADEP's Compliance Docket until the violations are corrected to the satisfaction of PADEP.

In addition to having a fully approved enforcement program, Pennsylvania has included contingency measures that are triggered when any of the four SIP sources' emissions reach a certain percentage of the allowable emissions or if the Strongstown monitor in the nonattainment area registers a daily maximum 1-hour average concentration exceeding 75 ppb. These measures are in line with the supplemental contingency measure guidance EPA mentions previously and are included in the Homer City COA, Seward COA, Conemaugh Order and the Keystone Order, and thus will be fully approved provisions within the SIP.

EPA concludes, in accordance with the 2014 SO 2 Nonattainment Guidance, that Pennsylvania's enforcement program suffices to satisfy the contingency measure requirements for SO 2 . The magnitude of prospective benefit from Pennsylvania's supplemental contingency measures is unclear, but it is clear that these measures can only improve, and will not worsen, air quality. EPA believes that Pennsylvania's enforcement program, which is enhanced by the supplementary provisions in the COAs and Orders, suffice to meet Section 172(c)(9) requirements as interpreted in the 1992 General Preamble and the 2014 SO 2 Nonattainment Guidance.

In regard to the commenter's question as to why all of the consent orders do not contain compliance parameters, the compliance parameters can be found in either the COA, Orders or permits that are being incorporated into the SIP. EPA is interpreting the term “compliance parameters” in the comment to mean any specified method for determining compliance with the emission limits. The compliance parameters for Seward, Homer City and Conemaugh are found in the respective redacted permits, and the compliance parameters for Keystone are found in the Order. The COA or Orders for Seward, Homer City and Conemaugh do not have compliance parameters, as they are contained in the redacted permits.

Comment 1 on NODA. The commenter expresses concern with the idea that the newly calculated CEV for Seward of 4,500 lbs/hr, which is less than the original CEV of 5,079 lbs/hr, still supports the 3,038 lbs/hr 30-day average emission limit for Seward. The commenter concludes that the prior Seward CEV used to calculate the emission limit in the original submittal was too high and accordingly that the 3,038 lbs/hour emission limit itself is too high.

Response 1 on NODA. EPA recognizes the concern that the prior CEV calculated for Seward was higher than the newly calculated CEV, but the longer term limit has not changed. While this would not necessarily occur if Pennsylvania had followed the methodology described in Appendix C, they did not. Pennsylvania opted to use a different approach to calculate the longer term limits (their approach was the same in the original submittal as in the supplemental submittal). Pennsylvania did not rely on adjustments from the CEV as set forth by the approach in Appendix C. Therefore, a reduction in the CEV does not necessarily dictate a reduction in the longer term limit. Instead, Pennsylvania provided an updated RRE modeling analysis demonstrating that Seward's 30-day average emission limit of 3,038 lbs/hr is protective of the NAAQS. 22

The supplemental modeling analysis provided on February 5, 2020 included updated and more accurate meteorological data, a more refined receptor grid and updated emission profiles. These updates were incorporated into both the CEV AERMOD simulations and the RRE AERMOD simulations. EPA's February 2020 RRE Modeling TSD located in the docket for this rulemaking explains EPA's review of Pennsylvania's updated RRE analysis and is also addressed in Response 3 of this preamble.

EPA reviewed Seward's emissions data which indicates a decline in emissions variability. 23 In particular, while a comparison of 2014 to 2016 data against 2016 to 2018 shows fairly similar or even slightly increasing 99th percentile 30-day average values, these data also show a significant decline in the 99th percentile 1-hour values. This decreased difference between peak 1-hour values and peak 30-day average values, indicating a decline in this critical measure of variability, appears to be an important factor in Pennsylvania's supplemental modeling (using emissions reflecting the more recent, less variable emissions) concluding that the same 30-day average limit in the original modeling (using emissions reflecting the older, more variable emissions) still suffices to show attainment. The 2017 to 2019 data indicate that this trend toward less variable emissions appears to be continuing.

Comment 2 on NODA. The commenter states that AECOM justified the conversion factor of 0.68 for Seward by comparing it to Table 1 of Appendix D of EPA's 2014 SO 2 Nonattainment Guidance for sources with dry scrubbers (which lists the conversion factor as 0.63). The commenter points out that 0.63 is significantly lower than 0.68, yet significantly higher than the 0.47 conversion factor AECOM calculated using Appendix C methodology for Seward, but ultimately decided to not use. The commenter states that Seward is a waste coal plant and is less likely to operate similarly to the coal fleet as a whole, which may be why using Appendix C methodology supports a conversion factor of 0.47.

Response 2 on NODA. A conversion factor was not used to calculate the longer term limit for Seward. While a ratio between the 30-day average limit for Seward and the CEV may be calculated, and this ratio may be compared to the adjustment factor that would be derived using the procedures in Appendix C, the concept of a conversion factor is not directly relevant to the calculation of Seward's longer term limit. EPA acknowledges that the CEV provides an upper bound for the value of a potential longer term limit ( i.e., the longer term limit cannot be greater than the CEV). However, that is the extent to which the CEV was used in Pennsylvania's development of Seward's 30-day limit. Instead, Pennsylvania provided updated 100 RRE AERMOD simulations as reasonable evidence that the longer-term emission limit for Seward is protective of the NAAQS. More details on Pennsylvania's methodology for developing Seward's longer term limit is provided in Response 3 of this preamble, and in the RRE Modeling TSD.

Comment 3 on NODA. The commenter expressed concern that the modeling analysis did not include areas outside the nonattainment area boundary. The commenter claims that by hiding areas with peak impacts above the NAAQS, the AECOM analysis undercalculates CEVs, and thereby fails to assess emission limits low enough to protect the NAAQS.

Response 3 on NODA. As discussed in more detail in Response 10 of this preamble, absent a clear requirement that Pennsylvania must include model receptors outside of the nonattainment area in its submission, EPA will confine its analysis to whether the attainment SIP demonstrates attainment within the designated nonattainment area.

Comment 4 on NODA. The commenter requested that EPA extend this public comment period due to the National Covid-19 Pandemic. Specifically, the commenter requested an additional 30 days after the President's National Emergency Order or Governor Wolf's State Emergency Order are pulled back.

Response 4 on NODA. EPA is not able to extend the public comment period for this NODA, particularly when the request seeks an additional 30 day period after some unknown future date when the President's or Governor's Emergency Order is withdrawn. EPA is under an October 30, 2020 court-ordered deadline to take action on this SIP, and therefore an indeterminate delay would require an amendment of that court order, and EPA could not be assured that such an extension could be obtained, particularly when the amount of time of the extension is tied to Emergency Orders with indefinite end dates. Also, EPA believes that issuance of the President's and Governor's orders did not significantly hamper the public's ability to comment because the supplemental information and all materials necessary to evaluate that supplemental information were available electronically in the docket or by contacting EPA for this matter. For these reasons, EPA did not grant the commenter's request for an indefinite extension of the public comment period.

EPA is approving the attainment plan for the Indiana, PA SO 2 nonattainment area as a revision to the Pennsylvania SIP as submitted by PADEP to EPA on October 11, 2017 and supplemented on February 5, 2020. Specifically, EPA is approving the base year emissions inventory, a modeling demonstration of SO 2 attainment, an analysis of RACM/RACT, an RFP plan, and contingency measures for the Indiana Area and is finding that the Pennsylvania SIP revision has met the requirements for NNSR for the 2010 1-hour SO 2 NAAQS. Additionally, EPA is approving into the Pennsylvania SIP the SO 2 emission limits and compliance parameters in the following Orders, Consent Order and Agreements (COAs) and permits: the unredacted portion of the Order between Pennsylvania and Genon NE Management Company, Conemaugh Plant; the unredacted portions of the Consent Order and COA between Pennsylvania and Homer City Generation, LP; the unredacted portions of the Order between Pennsylvania and Genon NE Management Company, Keystone Plant; the unredacted portions of the COA between Pennsylvania and Seward Generation, LLC; the unredacted portions of the Title V Permit for Conemaugh Plant (provided to EPA on May 13, 2020); the unredacted portions of the Plan Approval for Homer City (provided to EPA on May 13, 2020); and the unredacted portion of the Title V Operating Permit for Seward Station (provided to EPA on May 13, 2020).

EPA has determined that Pennsylvania's SO 2 attainment plan for the 2010 1-hour SO 2 NAAQS for the Indiana Area meets the applicable requirements of the CAA and is consistent with EPA's 2014 SO 2 Nonattainment Guidance where applicable. Thus, EPA is approving Pennsylvania's attainment plan for the Indiana Area as submitted on October 11, 2017 and supplemented on February 5, 2020. This final action of this SIP submittal removes EPA's duty to implement a FIP for this Area, and discharges EPA's requirement under the court order entered in Center for Biological Diversity, et al., v. Wheeler, No. 4:18-cv-03544 (N.D. Cal., Nov. 26, 2019) to sign final action on the SIP by October 30, 2020.

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the unredacted portions of the Order between Pennsylvania and Genon NE Management Company, Conemaugh Plant; the unredacted portions of the Consent Order and Agreement (COA) between Pennsylvania and Homer City Generation, LP; the unredacted portions of the Order between Pennsylvania and Genon NE Management Company, Keystone Plant; the unredacted portions of the COA between Pennsylvania and Seward Generation, LLC; the unredacted portions of the Title V Permit for Conemaugh Plant (provided to EPA on May 13, 2020); the unredacted portions of the Plan Approval for Homer City (provided to EPA on May 13, 2020); and the unredacted portion of the Title V Operating Permit for Seward Station (provided to EPA on May 13, 2020). EPA has made, and will continue to make, these materials generally available through https://www.regulations.gov and at the EPA Region III 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 EPA for inclusion in the SIP, have been incorporated by reference by 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 EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 24

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, 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 it is not a significant regulatory action 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 application of those requirements would be inconsistent with the CAA; and

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

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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. 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 December 18, 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 approving the attainment plan for the Indiana, PA SO 2 nonattainment area may not be challenged later in proceedings to enforce its requirements. (See CAA section 307(b)(2)).

40 CFR part 52 is amended as follows:

On May 5, 2020, EPA published a notice of proposed rulemaking (NPRM). 85 FR 26647. In the NPRM, EPA proposed approval of case-by-case RACT determinations for four sources in Pennsylvania for the 1997 and 2008 8-hour ozone NAAQS. The case-by-case RACT determinations for these four sources were included in SIP revisions submitted by PADEP on November 21, 2017, April 26, 2018, June 26, 2018, and October 29, 2018.

Under certain circumstances, states are required to submit SIP revisions to address RACT requirements for major sources of NO X and VOC or any source category for which EPA has promulgated control technique guidelines (CTG) for each ozone NAAQS. Which NO X and VOC sources in Pennsylvania are considered “major,” and therefore to be addressed for RACT revisions, is dependent on the location of each source within the Commonwealth. Sources located in nonattainment areas would be subject to the “major source” definitions established under the CAA based on their classification. In the case of Pennsylvania, sources located in any areas outside of moderate or above nonattainment areas, as part of the Ozone Transport Region (OTR), are subject to source thresholds of 50 tons per year (tpy). CAA section 184(b).

On May 16, 2016, PADEP submitted a SIP revision addressing RACT under both the 1997 and 2008 8-hour ozone NAAQS in Pennsylvania. PADEP's May 16, 2016 SIP revision intended to address certain outstanding non-CTG VOC RACT, VOC CTG RACT, and major NO X RACT requirements for both standards. The SIP revision requested approval of Pennsylvania's 25 Pa. Code 129.96-100, Additional RACT Requirements for Major Sources of NO X and VOCs (the “presumptive” RACT II rule). Prior to the adoption of the RACT II rule, Pennsylvania relied on the NO X and VOC control measures in 25 Pa. Code 129.92-95, Stationary Sources of NO X and VOCs, (the RACT I rule) to meet RACT for non-CTG major VOC sources and major NO X sources. The requirements of the RACT I rule remain approved into Pennsylvania's SIP and continue to be implemented. 1 On September 26, 2017, PADEP submitted a supplemental SIP revision, dated September 22, 2017, which committed to address various deficiencies identified by EPA in their May 16, 2016 “presumptive” RACT II rule SIP revision.

On May 9, 2019, EPA conditionally approved the RACT II rule based on the commitments PADEP made in its September 22, 2017 supplemental SIP revision. See 84 FR 20274. In EPA's final conditional approval, EPA noted that PADEP would be required to submit, for EPA's approval, SIP revisions to address any facility-wide or system-wide averaging plan approved under 25 Pa. Code 129.98 and any case-by-case RACT determinations under 25 Pa. Code 129.99. PADEP committed to submitting these additional SIP revisions within 12 months of EPA's final conditional approval, specifically May 9, 2020. The SIP revisions addressed in this rule are part of PADEP's efforts to meet the conditions of its supplemental SIP revision and EPA's conditional approval of the RACT II Rule.

To satisfy a requirement from EPA's May 9, 2019 conditional approval, PADEP submitted to EPA SIP revisions addressing case-by-case RACT requirements for major sources in Pennsylvania subject to 25 Pa. Code 129.99. In the Pennsylvania RACT SIP revisions, PADEP included a case-by-case RACT determination for the existing emissions units at each of these major sources of NO X and/or VOC that required a source-specific RACT determination. In PADEP's RACT determinations, an evaluation was completed to determine if previously SIP-approved, case-by-case RACT emission limits or operational controls (herein referred to as RACT I and contained in RACT I permits) were more stringent than the new RACT II presumptive or case-by-case requirements. If more stringent, the RACT I requirements will continue to apply to the applicable source. If the new case-by-case RACT II requirements are more stringent than the RACT I requirements, then the RACT II requirements will supersede the prior RACT I requirements. 2

Here, EPA is taking action on SIP revisions pertaining to case-by-case RACT requirements for four major sources of NO X and/or VOC in Pennsylvania, as summarized in Table 1.

The case-by-case RACT determinations submitted by PADEP consist of an evaluation of all reasonably available controls at the time of evaluation for each affected emissions unit, resulting in a PADEP determination of what specific emission limit or control measures, if any, satisfy RACT for that particular unit. The adoption of new, additional, or revised emission limits or control measures to existing SIP-approved RACT I requirements were specified as requirements in new or revised Federally enforceable permits (hereafter RACT II permits) issued by PADEP to the source. The RACT II permits, which revise or adopt additional source-specific limits and/or controls, have been submitted as part of the Pennsylvania RACT SIP revisions for EPA's approval in the Pennsylvania SIP under 40 CFR 52.2020(d)(1). The RACT II permits submitted by PADEP are listed in the last column of Table 1 of this preamble, along with the permit effective date, and are part of the docket for this rule, which is available online at https://www.regulations.gov, Docket No. EPA-R03-OAR-2020-0189. 3 EPA is incorporating by reference in the Pennsylvania SIP, via the RACT II permits, source-specific RACT emission limits and control measures under the 1997 and 2008 8-hour ozone NAAQS for certain major sources of NO X and VOC emissions.

PADEP's SIP revisions incorporate its determinations of source-specific RACT II controls for individual emission units at major sources of NO X and/or VOC in Pennsylvania, where those units are not covered by or cannot meet Pennsylvania's presumptive RACT regulation. After thorough review and evaluation of the information provided by PADEP in its five SIP revision submittals for four major sources of NO X and/or VOC in Pennsylvania, EPA proposed to find that PADEP's case-by-case RACT determinations and conclusions establish limits and/or controls on individual sources that are reasonable and appropriately considered technically and economically feasible controls.

PADEP, in its RACT II determinations, considered the prior source-specific RACT I requirements and, where more stringent, retained those RACT I requirements as part of its new RACT determinations. In the NPRM, EPA proposed to find that all the proposed revisions to previously SIP approved RACT I requirements would result in equivalent or additional reductions of NO X and/or VOC emissions. The proposed revisions should not interfere with any applicable requirement concerning attainment or reasonable further progress with the NAAQS or interfere with other applicable CAA requirements in section 110(l) of the CAA.

Other specific requirements of Pennsylvania's 1997 and 2008 8-hour ozone NAAQS case-by-case RACT determinations and the rationale for EPA's proposed action were explained in the NPRM and its associated technical support document (TSD) and will not be restated here.

EPA received comments from seven commenters on the May 5, 2020 NPRM. 85 FR 26647. A summary of the comments and EPA's response are discussed in this section of the preamble. A copy of the comments can be found in the docket for this rule.

Comment 1: The commenter states that water/steam injection is a control option for Transco Station 520's simple cycle turbines that was inappropriately determined to be technically infeasible and indicates that this control option is found on EPA's RACT/BACT/LAER Clearinghouse (RBLC) as technically feasible in at least 10 natural gas fired simple cycle turbines over the last 20 years. The commenter further states that EPA had made a similar comment for the public record on the technical feasibility of water/steam injection and had arbitrarily reversed its position in the NPRM. The commenter claims that the reasons given for technical infeasibility such as water/steam supply, storage tanks, the source of water, and water treatment and pretreatment are economic, and not technical, feasibility issues. For these reasons, the commenter states that EPA should disapprove PADEP's RACT determination for Transco Station 520 and reevaluate the economic feasibility of water/steam injection.

Response 1: The commenter is correct in stating that EPA made prior comments suggesting that water/steam injection was a technically feasible control option for natural gas fired simple cycle turbines in gas transmission service that should be evaluated for economic feasibility. However, EPA disagrees that it has arbitrarily changed its position in proposing to approve the case-by-case RACT requirements for the two Transco Station 520 simple cycle turbines. Both the facility and PADEP responded to EPA's comment explaining why the water/steam injection control option was not technically feasible at this specific site.

PADEP conducted its case-by-case RACT analysis of potential controls for Transco's natural gas fired simple cycle turbines pursuant to the requirements of Pennsylvania's RACT regulations. The case-by-case RACT II analysis requirements are set forth in 25 PA Code 129.99(c), which then references the RACT proposal requirements identified in 25 Pa Code 129.92. As identified in Section 129.92(b)(1), “[a]vailable control options are air pollution control technologies with a reasonable potential for application at the source.” Section 129.29(b)(2) further identifies that “[a] determination of technical infeasibility shall identify technical difficulties which would preclude the successful use of the control option on the source.”

The water/steam injection control option requires a large volume of purified water. The Transco facility is located in a remote location without a viable on-site source of clean water. In order to have the needed purified water on-site for water/steam injection, Transco would need to drill an on-site well or transport water to an on-site water purification facility. A water study would be needed to determine whether and how an on-site well could be drilled. Transporting water to the site would require the installation of a water purification facility and large on-site storage tanks. The need to transport water to the site for the use of water/steam injection also introduces unreliability and the risk of insufficient water due to the unpredictable nature of weather and transportation. The uncertainties created by the need to transport water to the site increases the risk of system failure because the Transco turbines are peaking units. Given the nature of peak demand, these turbines are required to operate immediately when necessary with little advanced notice. 4

For these reasons, the RACT analysis determined that water/steam injection was technically infeasible for the Transco turbines. Lacking an on-site water source or a reliable off-site source of on-demand water, it was reasonable for PADEP to conclude that water/steam injection was not an available control option with a “reasonable potential application at the source.” While the need to install a water purification system and large on-site storage tanks may be factors that can be evaluated through an economic feasibility analysis, the lack of an on-site water source and the risks and uncertainties of an insufficient water supply due to the potential need for the on-demand trucking of water are issues far more fundamental to determining initially whether using water/steam injection is truly an available control technology for these sources at this site. These circumstances present “technical difficulties which would preclude the successful use of the control option on the affected source.” After reviewing the responses from the company and PADEP, EPA concluded that PADEP's RACT determination that water/steam injection is not technically feasible for the Transco Station 520 peaking turbines was a reasonable conclusion based on Pennsylvania's RACT requirements.

Comment 2: The commenter complains that the Transco Station 520 redacted permit consists of non-uniform pages, where one added page is in color and the remaining pages are in black and white. The commenter claims that EPA illegally altered the state's submittal to correct a mistake made by the state. The commenter refers to a prior proposed rulemaking, EPA-R03-OAR-2017-0290, where the redacted permit for Transco station 520, included in the docket for that proposed rulemaking, did not include the 79.3 lbs/hr and 95.6 tpy RACT emission limits. However, the commenter notes that the redacted permit in the current docket does contain such RACT limits. The commenter states that EPA must remit the SIP back to Pennsylvania to incorporate enforceable RACT limitations.

Response 2: The commenter's concern relates to the RACT emission limits for Source ID 106 in the Transco Station 520 Permit No. 41-00001, Section D, I., Condition #004. The commenter notes that, in a proposed rule from 2017, EPA-R03-OAR-2017-0290 which was never finalized, this permit condition was not included in the redacted permit to be incorporated into the SIP. 5 This was an inadvertent error because the emission limits contained in the permit condition were always intended to be part of Pennsylvania's RACT determination for this source. See, for example, the PADEP technical review memo, dated February 22, 2017, the EPA TSD, and the full Transco Station 520 Permit No. 41-00001, all of which were in the docket for the 2017 proposed action. EPA, subsequently notified PADEP that the SIP submittal for Transco Station 520 contained an incorrectly redacted permit. On April 6, 2020, PADEP supplemented their SIP submittal with the correctly redacted permit. 6 The docket for the proposal for the current rulemaking included a correctly redacted permit, which included the 79.3 lbs/hr and 95.6 tpy RACT emission limits. 7

Comment 3: The commenter agrees with EPA's proposed approval of PADEP's determination to avoid the use of the blowing agent 152a when considering RACT alternatives to the use of pentane. The commenter explains that coal is not the only substance that is bad for the environment and claims that blowing agent 152a is an extremely dangerous compound that is harmful to the environment because it is a potent greenhouse gas, a carcinogen and produces carbon dioxide.

Response 3: While the commenter does not identify a specific facility, we believe the commenter's comment applies to the Novipax facility, where the blowing agent 152a was discussed in the RACT analysis. EPA appreciates the support of the commenter for the Novipax RACT determination.

Comment 4: The commenter states that EPA should require more controls for Sunoco Partners Marketing and Terminals (SPMT), including controls that exceed Pennsylvania's cost thresholds of $2,800/ton or other states' $5,000/ton cost thresholds. The commenter claims that facilities such as SPMT, which causes millions of dollars in environmental damage and makes millions of dollars, can afford to do more and should be required to do more. The commenter explains that the area in which SPMT is located is historically poor, damaged by industrial pollution, and is a neighborhood of black and brown people. The commenter claims that EPA has a duty to consider environmental justice and should disapprove the RACT determination for SPMT and require PADEP to use a higher cost threshold and force RACT level controls to be installed.

Response 4: There are seven emission units that required case-by-case RACT determinations at the SPMT facility. The RACT determinations are governed by the requirements of 25 Pa. Code 129.99, which requires a technical and economic feasibility analysis of available control options. Three of these emission units are the auxiliary boilers. The SPMT auxiliary boilers are dual-fueled, burning both natural gas and refinery gas. They are currently controlled with low NO X burners and flue gas recirculation. PADEP's case-by-case RACT II determination require these boilers to achieve a 0.05 lb NO X /MMBtu emission limit, which will be incorporated into the SIP through the current rule. This new limit tightens the prior RACT I limit of 0.25 lb NO X /MMBtu emission limit. Although there are no presumptive RACT requirements that apply to SPMT's dual-fired boilers, the RACT II limit of 0.05 lb NO X /MMBtu is at least twice as stringent as the presumptive RACT requirements at 25 Pa. Code 129.97(g)(1) for combustion units equal to or greater than 50 MMBtu heat input. Because the SPMT boilers are already controlled and achieve relatively low NO X emissions, additional controls were found to be economically infeasible. The cost effectiveness evaluation of the technically feasible control options for these boilers determined a range of costs from $12,126 to $52,331/ton of NO X reduced, a cost level well above the higher $5,000 cost threshold identified by the commenter. 8

The fourth emission unit subject to case-by-case RACT is the marine vessel loading operation that is currently subject to the requirements of 25 Pa. Code § 129.81 and 40 CFR part 63, subpart Y, the National Emission Standards for Marine Tank Vessel Loading Operations, which contains additional requirements for vapor collection and leak detection. All marine vessel loading at the facility is currently controlled by a marine vapor recovery (MVR) system which captures gases and directs them to the fuel gas system to be combusted as a fuel in the auxiliary boilers. The RACT analysis of the marine vessel loading operations concluded that there is no feasible control with a greater control efficiency than the current MVR control technology. Because there were no technically feasible controls better than the current controls, a cost effectiveness analysis was not required. 9

The fifth emission unit subject to case-by-case RACT is a single cooling tower, which has a potential to emit 4.6 tpy VOC. There were no technically or economically feasible control options for this source in addition to what is already required under prior RACT SIP approvals, which are equipment inspection and monitoring. 10 The sixth and seventh emission units subject to case-by-case RACT are fugitive leaks from valves and fugitive leaks across the facility. Again, the RACT analysis identified that there were no technically feasible controls for these sources. For both of these sources, PADEP is requiring as RACT compliance with 40 CFR part 60 subpart VV, Standards of Performance for Equipment Leaks of VOC in the Synthetic Organic Chemicals Manufacturing Industry (or VVa as appropriate), which minimizes leaks from valves, flanges, and tanks through the use of specified equipment, work practices and inspections. 11

As identified in this preamble, PADEP followed the RACT analysis requirements of 25 Pa. Code 129.99 and for only three sources was it able to identify additional technically feasible control options. For those sources, the three auxiliary boilers, the cost of added emission reduction well exceeded even the higher cost effectiveness threshold identified by the commenter. In its approval capacity, EPA shall approve a state's proposed RACT proposal if it meets the statutory and regulatory requirements of the program. CAA Section 110(k)(3). In this case, EPA determined that PADEP's proposed RACT SIP was reasonable and met the statutory and regulatory requirements.

The commenter also urges EPA to consider environmental justice as part of the RACT determination for this facility. The Clean Air Act and the requirements to implement RACT are designed to protect public health and the environment. However, the only factors EPA is legally required to consider for determining RACT are those in the statue and regulations, and environmental justice is not a statutory or regulatory factor in the RACT analysis. As described in this preamble and in our proposal document we believe it is appropriate to fully approve PADEP's SIP submittal with respect to RACT for SPMT.

Comment 5: One commenter asserts that “other neighboring states such as New York and New Jersey both have cost effectiveness thresholds set at or above $5,000 per ton, but here EPA arbitrarily allows a lower dollar per ton threshold!” The commenter goes on to question EPA's approval of a lower cost threshold in Pennsylvania. Further, the commenter states that “EPA must retract their proposed approval and set a uniform dollar per ton threshold based on, and consistent with, past EPA actions” and “that the cost per ton threshold should at least be consistent in the Ozone Transport Region (OTR).” Lastly, the commenter claims that “EPA is arbitrary and capricious when approving two different states RACT SIPs with inconsistent cost thresholds” and that “EPA needs to set the bar, not let the states waffle in the wind and never install controls.”

Response 5: EPA is aware that Pennsylvania considered cost-effectiveness levels ($/ton removed) that are lower than other states, such as New Jersey and New York as the commenter notes, when developing the RACT II rule. However, EPA has not set a single cost, emission reduction, or cost-effectiveness figure to fully define cost-effectiveness in meeting the NO X or VOC RACT requirement. Therefore, states have the discretion to determine what costs are considered reasonable when establishing RACT for their sources. Each state must make and defend its own determination on how to weigh these values in establishing RACT.

As PADEP explained in its RACT II rulemaking, it did not establish a bright-line cost effectiveness threshold in determining what is economically reasonably for purposes of defining RACT. 12 Instead, it developed as guidance a cost-effectiveness threshold of $2,800 per ton of NO X controlled and $5,500 per ton of VOC controlled for RACT. Pennsylvania also determined that even evaluating control technology options with an additional 25% margin, an upper bound cost-effectiveness threshold of $3,500 per ton NO X controlled and $7,000 per ton VOC controlled, would not affect the add-on control technology decisions required by RACT. Id. Pennsylvania determined that these higher cost-effectiveness thresholds did not impact the determination of what add on control technology was feasible. Pennsylvania also reviewed examples of benchmarks used by other states: Wisconsin, $2,500 per ton NO X ; Illinois, $2,500-$3,000 per ton NO X ; Maryland, $3,500-$5,000 per ton NO X ; Ohio, $5,000 per ton NO X ; and New York, $5,000-$5,500 per ton NO X . 13

In a separate prior final agency action, EPA found that PADEP's cost effectiveness thresholds are reasonable and reflect control levels achieved by the application and consideration of available control technologies, after considering both the economic and technological circumstances of Pennsylvania's own sources. See 84 FR 20274, 20286 (May 9, 2019).

Comment 6: The commenter notes that good operating practices are determined to be RACT for several sources at Global Advanced Metals. However, the commenter claims that for Source IDs 102, 124, and 201, those good operating practices are not defined in the permit.

Response 6: The commenter is correct, in part, in stating that good operating practices have been determined as VOC RACT for Source IDs 102, 124, and 201. However, they are only one aspect of the overall RACT II requirements imposed on the sources. For all three sources, PADEP conducted a VOC RACT analysis per 25 Pa. Code 129.99, concluding that the additional control technologies evaluated were either technically and/or economically infeasible and that RACT would, among other requirements, be operation and maintenance of the source in accordance with manufacturers' specifications and good air pollution control practices. 14

As noted previously, PADEP imposed additional RACT requirements on these sources based on existing permit conditions, which were considered in the RACT analysis. For instance, Global Advanced Metals currently utilizes a recovery unit to control methyl isobutyl ketone (MIBK) emissions from Source ID 124, the extraction process in Building 74, and PADEP has imposed the requirement to operate this recovery unit as a RACT requirement. The RACT II permit also includes efficiency restrictions on the control device and extensive recordkeeping requirements on operational factors such as flow rates, pressure drops, MIBK content in influent and effluent, and maintenance downtime. 15

The MIBK recovery system also helps to limit emissions from Source ID 102, the tantalum salts process in Building 19. 16 While the RACT II permit does not specifically include the operation of the MIBK recovery unit for Source 102, the recovery unit's operation is required in the RACT II permit under Source 124, as identified in this preamble. PADEP also imposed on Source 102 a throughput restriction on the number of batches. 17 Additionally, the RACT II for Source ID 201, the wastewater treatment plant, included a requirement to provide PADEP with relevant records found in the facility's National Pollutant Discharge Elimination System (NPDES) permit, upon request. 18

EPA concluded that “good operating practices,” which was determined as VOC RACT for these three sources by PADEP, is adequately defined in the facility's permit as “operating and maintaining the source in accordance with manufacturers' specifications.” The requirement to operate the source in accordance with the manufacturer's specifications holds the facility accountable for operating and maintaining each of these three sources per the guidance established by the manufacturer specifically for that particular source. The good operating practices requirement is further clarified and strengthened by the additional RACT requirements for recovery unit operation, operational restrictions, and recordkeeping included in the redacted permit to be incorporated into the SIP.

Comment 7: The commenter notes that EPA is approving particulate matter (PM) limits for Global Advanced Metals as part of the facility's RACT determination. The commenter asks why and what relationship these PM limits have in setting NO X and/or VOC RACT emission limits for the source.

Response 7: While the commenter does not provide a specific reference to the PM limits in question, EPA assumes the commenter is referring to the PM limit of “not to exceed 0.02 grains per dry standard cubic foot” as a control device efficiency restriction for the RotoClone wet dust collector. 19 The RotoClone wet dust collector was not one of the control technologies examined by PADEP for the control of VOCs from Source 109. Rather, it is a control technology for PM. The PM limits were established under other regulatory programs and not the RACT program. It was identified as an ongoing facility requirement while reviewing the VOC RACT requirements for the fugitive emissions from ethanol transfer and storage operations. The commenter's concern about PM is warranted. The PM limits are not included in the source's permit to address RACT requirements and therefore should not be incorporated into the SIP through the current rule. PADEP has subsequently submitted a revised redacted permit that does not include the PM requirements for incorporation into the SIP. 20

Comment 8: The commenter notes that for Source ID 201 at Global Advanced Metals, the RACT determination includes the submission of records required under the facility's NPDES permit. The commenter claims that neither EPA nor PADEP provide justification or explanation as to why submission of these records is necessary. The commenter claims that EPA has no authority under the CAA to require submission of records under the Clean Water Act (CWA), stating that the Information Collection Request (ICR) approved for these records makes no mention of allowing them to be used for purposes outside of the NPDES program. The commenter claims that in order for EPA to require submission of these records for CAA purposes, EPA would have to go through the ICR process and calculate the burden on these sources to do so.

Response 8: The commenter is correct that among the RACT requirements for Source ID 201, the wastewater treatment plant (WWTP), Condition #001 requires the facility to “provide to the DEP, upon request, copies of records required by the NPDES permit.”  21 This condition is determined to be part of the source's VOC RACT determination per 25 Pa. Code 129.100(d).

EPA disagrees with the commenter that there is insufficient justification or explanation as to why these records are relevant to the VOC RACT determination for the WWTP. In its VOC RACT analysis, PADEP explained that the constituents of the wastewater at Global Advanced Metals include dissolved VOCs, which may be emitted to some extent to the atmosphere in the treatment process. 22 Knowledge of the wastewater constituents informs PADEP's knowledge as to the effectiveness of the wastewater treatment process in removing VOC emissions at this source. Information on such constituents is contained in the regular testing of total suspended solids and total dissolved solids performed by Global Advanced Metals pursuant to its NPDES permit. Therefore, this information is directly related to the control of VOC air emissions from the WWTP.

EPA also disagrees with the commenter's contentions about the use of NPDES records for RACT purposes and believes the commenter may have misinterpreted the nature of EPA's proposed action. In this SIP action, EPA is not relying on any CWA information collection authorization and is not adding such into the SIP. Rather, it is approving a legitimate permit term established by PADEP, under its own independent authority (the Air Pollution Control Act) to collect air emissions data, into the Pennsylvania SIP. Data that is collected under the NPDES program related to dissolved VOC constituents in a facility's wastewater is such data and referring to the NPDES permit merely helps the facility identify the required data but is not the authority being used to collect it. The reference to the NPDES permit helps to identify that the information needed to be supplied for compliance with the Pennsylvania air permit is the same as the information being collected under the CWA. It is merely a convenient way of identifying the data needed to be reported under the air permit and is not the basis for the state's authority to include it in the permit.

EPA is approving case-by-case RACT determinations for four sources in Pennsylvania, as required to meet obligations pursuant to the 1997 and 2008 8-hour ozone NAAQS, as revisions to the Pennsylvania SIP.

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of source-specific RACT determinations under the 1997 and 2008 8-hour ozone NAAQS for certain major sources of VOC and NO X in Pennsylvania. EPA has made, and will continue to make, these materials generally available through https://www.regulations.gov and at the EPA Region III 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 EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully Federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rule of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 23

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, 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 it is not a significant regulatory action 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 application of those requirements would be inconsistent with the CAA; and

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

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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. Section 804, however, exempts from section 801 the following types of rules: Rules of particular applicability; rules relating to agency management or personnel; and rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). Because this is a rule of particular applicability, EPA is not required to submit a rule report regarding this action under section 801.

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 December 18, 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 approving Pennsylvania's NO X and VOC RACT requirements for four case-by-case facilities for the 1997 and 2008 8-hour ozone NAAQS may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

Throughout this document “we,” “us,” and “our” refer to the EPA.

The EPA is approving the removal of 10 Code of State Regulation (CSR) 10- 5.360, Control of Emissions from Polyethylene Bag Sealing Operations, from the Missouri SIP.

As explained in detail in EPA's proposed rule, Missouri has demonstrated that removal of 10 CSR 10-5.360 will not interfere with attainment of the NAAQS, reasonable further progress  1 or any other applicable requirement of the CAA because the only two sources subject to the rule are no longer subject and the removal of the rule will not cause VOC emissions to increase. (85 FR 45568, July 29, 2020). The EPA solicited but did not receive any comments on this proposed rule. Therefore, the EPA is finalizing its proposal to remove 10 CSR 10-5.360 from the SIP.

The State submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. The State provided public notice on this SIP revision from May 15, 2018, to August 2, 2018, and received eleven comments from the EPA that related to Missouri's lack of an adequate demonstration that the rule could be removed from the SIP in accordance with section 110(l) of the CAA, whether the rule applied to new sources and other implications related to rescinding the rule. Missouri's July 11, 2019 letter and December 3, 2018 response to comments on the state rescission rulemaking addressed the EPA's comments. In addition, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

The EPA is taking final action to approve Missouri's request to remove 10 CSR 10-5.360 from the SIP.

In this document, the EPA is amending regulatory text that includes incorporation by reference. As described in the amendments to 40 CFR part 52 set forth below, the EPA is removing provisions of the EPA-Approved Missouri Regulation from the Missouri State Implementation Plan, which is incorporated by reference in accordance with the requirements of 1 CFR part 51.

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

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

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

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. 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 March 24, 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 stated in the preamble, the EPA amends 40 CFR part 52 as set forth below:

The EPA's Scientific Integrity Policy is based on a Presidential Memorandum for the Heads of Executive Departments and Agencies, Subject Line: Scientific Integrity, Dated: March 9, 2009. The memorandum directs the Director of the Office of Science and Technology Policy (OSTP) to work with the Office of Management and Budget (OMB) and agencies to develop policies to ensure all scientific work developed and used by the Government is done so with scientific integrity. OSTP issued further guidance in the Scientific Integrity memorandum dated December 17, 2010.

This final rule requires EPA contractors to ensure that all personnel within their organization, subcontractors and consultants, that perform, communicate, or supervise scientific activities or use scientific information to perform advisory and assistance services under their specified contracts with EPA, have read and understand their compliance responsibilities regarding the EPA's Scientific Integrity Policy.

The proposed rule was published in the Federal Register (83 FR 48581-48584) on September 26, 2018, providing for a 60-day comment period. Interested parties were afforded the opportunity to participate in the making of this rule.

The following is a summary of the public comments received on the proposed rule and the EPA's response to these comments.

1. Comment: Several commenters expressed concerns about the costs of making scientific information available online and also that requiring scientific information to be available online could compromise confidentiality of the scientific information.

Response: The proposed clause requirement at EPAAR § 1552.203-72(c)(1)(x) to make scientific information available online has been deleted.

2. Comment: One commenter suggested that the EPA inform contractors of their need to evaluate computer models in adherence to the EPA Models Guidance.

Response: This requirement is described in general terms because listing specific guidance may not be all-inclusive or the guidance may change in the future.

3. Comment: One commenter noted that preventing intimidation or coercion of scientists to alter their scientific findings is a crucial element of the EPA's Scientific Integrity Policy and proposed adding the terms “ attempted or actual intimidation or coercion” to the clause to clarify that both attempted or actual intimidation or coercion would be a loss of scientific integrity.

Response: The EPA agrees and has added the terms “attempted or actual”, defining intimidation or coercion to EPAAR 1552.203-72(c)(2)(i).

4. Comment: One commenter expressed concern that the proposed rule does not explicitly address whether an individual employee of a contractor has an obligation to report loss or potential loss of scientific integrity to the contracting officer, his or her supervisor, or both, or to whom and how to report.

Response: In this final rule, the EPA does clarify in paragraph (d) of the clause that an employee of the contractor must report any loss or potential loss of scientific integrity in writing to the contractor who must communicate it to the EPA.

5. Comment: Concern was expressed that there is no explicit mechanism for resolving a dispute if the contractor, or an individual contractor employee, feels that the contracting officer has reached an incorrect conclusion or is applying an inappropriate remedy with regard to a loss of scientific integrity.

Response: The EPA agrees that a party who has been accused of a loss of scientific integrity should be able to respond to the Agency's decision regarding the loss of scientific integrity and the remedy. Section (e)(5) of the clause has been edited to state that if the party who has been accused of a loss of scientific integrity feels that the Agency has reached an incorrect conclusion or the Agency has applied an inappropriate remedy, that party may provide a written response to the Contracting Officer, Scientific Integrity Official, and/or Office of Inspector General (OIG).

6. Comment: One commenter noted that it was not clear if the proposed rule intended to cover a situation where a contractor, or employee of a contractor, became aware of a loss or suspected loss of scientific integrity by an EPA employee, but suggested the rule should cover this situation. Further, the commenter suggested such a loss or suspected loss of scientific integrity by an EPA employee be reported to someone other than the contracting officer or the contracting officer's representative.

Response: EPA agrees and has revised paragraph (d) of the clause to clarify that the final rule addresses the situation where a contractor, or employee of a contractor, becomes aware of an actual or suspected loss of scientific integrity by an EPA employee. Language has been added to state that, if the actual or potential loss of scientific integrity is by an EPA employee, the contractor may inform the EPA's Scientific Integrity Official in addition to the contracting officer or contracting officer's representative. An employee of the contractor must report any actual or potential loss of scientific integrity to the contractor who must communicate it to the EPA.

7. Comment: One commenter stated that the two clauses need to be further emphasized to prevent bias during scientific inquiry.

Response: To clarify, there is only one clause, EPAAR § 1552.203-72. EPAAR § 1503.1071 is the prescription for the use of the clause. The EPA believes that there is sufficient emphasis in the clause requirements to prevent bias during scientific inquiries. Additionally, contractors are legally bound to adhere to all terms of the clause, if it is included in their contract(s).

8. Comment: One commenter noted that the proposed rule requires EPA contractors to adhere to the standards set forth in the EPA's Scientific Integrity Policy, but the commenter was concerned that contractors cannot comply with standards if they don't know about them. The commenter suggested additional language be added to the clause noting all the guidance upon which the EPA's Scientific Integrity Policy is built.

Response: The EPA believes such additional language is not necessary. Contractors are notified of the scientific integrity requirements, which includes a link to the EPA's Scientific Integrity Policy, when this clause is included in the solicitation and contract.

9. Comment: One commenter suggested that the rule should be designated as “significant” under Executive Order (E.O.) 12866, as other agencies may not require contractor compliance with the EPA's Scientific Integrity Policy, which could create serious inconsistencies when the EPA is working with the other agencies on matters of interest to both agencies. The commenter was also concerned that contractor adherence to the EPA's Scientific Integrity Policy could also raise legal or policy issues arising out of legal mandates, the President's priorities, or E.O. 12866.

Response: The Office of Management and Budget determines if a rule is a significant regulatory action. The EPA's Scientific Integrity Policy is based on OSTP guidance and developed in conjunction with OMB's approval.

10. Comment: One commenter expressed concern that the proposed rule provides that it is the contracting officer who decides when the Scientific Integrity clause applies and when it should be inserted in a contract. The commenter was concerned that while some examples of activities that may trigger the rule's application are listed in the clause, the list of examples is not exhaustive, and the applicability may be misinterpreted by the contractor officer.

Response: The EPA agrees that the technical experts regarding applicability would be the EPA program office. Therefore, this final rule adds language so the contracting officer will consult with the program office regarding inclusion of the Scientific Integrity clause in a contract.

11. Comment: One commenter proposed adding language requiring contractors to use the most refined species location maps and best actual sampling and test data available.

Response: The EPA believes this language is redundant to what is already stated in the clause § 1552.203-72(c)(1)(i), which states the contractor agrees to produce scientific products of the highest quality, rigor and objectivity.

12. Comment: Several respondents that provided comments expressed their support of the scientific integrity requirement for contractors.

Response: EPA appreciates the support of the respondents.

The final rule amends FAR Part 1503—Improper Business Practices and Personal Conflicts of Interests, Subpart 1503.10—Contractor Code of Business Ethics and Conduct, by adding EPAAR § 1503.1070— Scientific integrity and 1503.1071— Contract clause. FAR Part 1552—Solicitation Provisions and Contract Clauses is amended by adding EPAAR clause § 1552.203-72— Scientific Integrity.

1. EPAAR § 1503.1070 explains the basis for the subsection.

2. EPAAR § 1503.1071 establishes the prescription for use of EPAAR clause § 1552.203-72 in all solicitations and contracts when the contractor may be required to perform, communicate, or supervise scientific activities, or use scientific information to perform advisory and assistance services.

3. EPAAR § 1552.203-72— Scientific Integrity clause states the applicability, term definitions as used in this clause, compliance requirements, reporting requirements, if an actual or suspected loss of scientific integrity is detected, and potential remedies.

This action is not a “significant regulatory action” under the terms of Executive Order (E.O.) 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the E.O.

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b).

The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute; unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impact of this final rule on small entities, “small entity” is defined as: (1) A small business that meets the definition of a small business found in the Small Business Act and codified at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; or (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. After considering the economic impacts of this rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, because the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the proposed rule on small entities” 5 U.S.C. 503 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all the small entities subject to the rule. This action establishes a new EPAAR clause that will not have a significant economic impact on a substantial number of small entities. We continue to be interested in the potential impacts of the rule on small entities and welcome comments on issues related to such impacts.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, Pub. L. 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, Local, and Tribal governments and the private sector. This rule contains no Federal mandates (under the regulatory provisions of the Title II of the UMRA) for State, Local, and Tribal governments or the private sector. The rule imposes no enforceable duty on any State, Local or Tribal governments or the private sector. Thus, the rule is not subject to the requirements of sections 202 and 205 of the UMRA.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and Local officials in the development of regulatory policies that have federalism implications.'' “Policies that have federalism implications” is defined in the Executive Order to include regulations that 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 rule 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 as specified in Executive Order 13132.

Executive Order 13175, entitled “Consultation and Coordination With Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This rule does not have tribal implications as specified in Executive Order 13175.

Executive Order 13045, entitled “Protection of Children From Environmental Health and Safety Risks” (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be economically significant as defined under E.O. 12886, and (2) concerns an environmental health or safety risk that may have a proportionate effect on children. This rule is not subject to E.O. 13045 because it is not an economically significant rule as defined by Executive Order 12866, and because it does not involve decisions on environmental health or safety risks.

This action is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use” (66 FR 28335 (May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.

Section 12(d) (15 U.S.C. 272 note) of the National Technology Transfer and Advancement Act of 1995, Public Law 104-113, directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g., materials specifications, test methods, sampling procedures and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This action does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.

Executive Order 12898 (59 FR 7629, February 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment in the general public.

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

For the reasons stated in the preamble, EPA amends 49 CFR parts 1503 and 1552 as follows:

The Pacific Coast Groundfish Fishery Management Plan (PCGFMP) and its implementing regulations at 50 CFR part 660, subparts C through G, regulate fishing for over 90 species of groundfish off the coasts of Washington, Oregon, and California. The Pacific Fishery Management Council (Council) develops groundfish harvest specifications and management measures for two-year periods ( i.e., a biennium). NMFS published the final rule to implement harvest specifications and management measures for the 2019-2020 biennium for most species managed under the PCGFMP on December 12, 2018 (83 FR 63970).

Pacific Coast groundfish fisheries are managed using harvest specifications or limits ( e.g., overfishing limits [OFL], acceptable biological catch [ABC], annual catch limits [ACL] and harvest guidelines [HG]) based on the best scientific information available at that time (50 CFR 660.60(b)). The harvest specifications and management measures developed for the 2019-2020 biennium used data through the 2017 fishing year. In general, the management measures ( e.g., trip limits, area closures, and bag limits) set at the start of the biennial harvest specifications cycle help catch in the various sectors of the fishery reach, but not exceed, the limits for each stock. The Council, in coordination with Pacific Coast Treaty Indian Tribes and the States of Washington, Oregon, and California, recommends adjustments to the management measures during the fishing year to achieve this goal. At its September 11, and 14-18, 2020 webinar, the Council recommended increasing the limited entry fixed gear (LEFG) and open access (OA) trip limits for sablefish north of 36° North latitude (N lat.) and increasing the incidental landing limit for Pacific halibut in the LEFG primary sablefish fishery. Each of the adjustments discussed below are based on updated fisheries information that was unavailable when the Council completed the initial analysis for the current harvest specifications.

Since spring 2020, declines in Asian markets and restrictions for domestic restaurants, among other factors, have led to a decline in markets and therefore an overall decline in fishing effort. The combination of these factors has resulted in estimated year-end catches that are lower than was anticipated under normal market conditions. The following changes were requested by industry to increase access to available harvestable quotas for sablefish and incidentally caught Pacific halibut.

Sablefish is an important commercial species on the west coast with vessels targeting sablefish using both trawl and fixed gear (longlines and pots/traps). Sablefish is managed with a coast-wide ACL that is apportioned north and south of 36° N lat. with 73.8 percent going to the north and 26.2 percent going to the south. In 2020, the portion of the ACL for sablefish north of 36° N lat. is 5,723 mt with a commercial HG of 5,113 mt. The commercial HG north of 36° N lat. is further divided between the limited entry and OA sectors with 90.6 percent, or 4,632 mt, going to the limited entry sector and 9.4 percent, or 481 mt, going to the OA sector. The limited entry share of the commercial HG is further divided between trawl (58 percent, or 2,687 mt), and fixed gear (42 percent, or 1,946 mt). The limited entry fixed gear share is further divided between the primary (85 percent, or 1,654 mt), and daily trip limit (15 percent, or 292 mt) fisheries.

Sablefish north of 36° N lat. is anticipated to have catches through the end of the year lower than anticipated at the start of the 2020 fishery, resulting in sablefish harvest of approximately 71 percent of the sablefish north ACL.

At the September 2020 Council meeting, members of industry requested increases to sablefish trip limits to address the lower than anticipated harvest of sablefish in 2020. Under the current trip limits, total catch in the LEFG and OA fisheries north of 36° N lat. is projected to be less than 172 mt, or 62 percent of the LEFG catch share, and less than 237 mt, or 52 percent of the OA catch share. Increasing the trip limits as described in Option 2, Table 1, for the LEFG and OA fisheries north of 36° N lat. for the remainder of the fishing year is projected to increase total mortality. Harvest in the LEFG fishery may increase by 69 mt, or 89 percent of the LEFG catch share, and in the OA fishery by 32 mt, or 67 percent of the OA catch share. The trip limit changes are described in Table 1.

NMFS manages the groundfish fishery in the Bering Sea and Aleutian Islands management area (BSAI) exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands management area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

NMFS closed directed fishing for Pacific ocean perch (POP) in the Bering Sea subarea of the BSAI under § 679.20(d)(1)(iii) (85 FR 13553, March 9, 2020).

NMFS has determined that approximately 2,000 metric tons of POP remain in the directed fishing allowance. Therefore, in accordance with § 679.25(a)(1)(i), (a)(2)(i)(C), and (a)(2)(iii)(D), and to fully utilize the 2020 total allowable catch of POP in the Bering Sea subarea of the BSAI, NMFS is terminating the previous closure and is opening directed fishing for POP in Bering Sea subarea of the BSAI, effective 1200 hrs, A.l.t., October 15, 2020, through 2400 hrs, A.l.t., December 31, 2020. This will enhance the socioeconomic well-being of harvesters dependent on POP in this area.

The Administrator, Alaska Region considered the following factors in reaching this decision: (1) The current catch of POP in the BSAI and, (2) the harvest capacity and stated intent on future harvesting patterns of vessels participating in this fishery.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR part 679, which was issued pursuant to section 304(b), and is exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the opening of directed fishing for POP in the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of October 9, 2020.

Without this inseason adjustment, NMFS could not allow the fishery POP in the BSAI to be harvested in an expedient manner and in accordance with the regulatory schedule. Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until November 3, 2020.