Please refer to Docket ID NRC-2020-0179 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:

• Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2020-0179.

• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to pdr.resource@nrc.gov. For the convenience of the reader, instructions about obtaining materials referenced in this document are provided in the “Availability of Documents” section.

• Attention: The PDR, where you may examine and order copies of public documents, is currently closed. You may submit your request to the PDR via email at PDR.Resource@nrc.gov or call 1-800-397-4209 between 8:00 a.m. and 4:00 p.m. (EST), Monday through Friday, except Federal holidays.

Please include Docket ID NRC-2020-0179 in your comment submission.

The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at https://www.regulations.gov as well as enter the comment submissions into ADAMS. The NRC does not routinely edit comment submissions to remove identifying or contact information.

If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.

This rule is limited to the changes contained in Amendment No. 4 to Certificate of Compliance No. 1040 and does not include other aspects of the Holtec International HI-STORM UMAX Canister Storage System cask design. The NRC is using the “direct final rule procedure” to issue this amendment because it represents a limited and routine change to an existing certificate of compliance that is expected to be non-controversial. The NRC has determined that, with the requested changes, adequate protection of public health and safety will continue to be reasonably assured. The amendment to the rule will become effective on January 25, 2021. However, if the NRC receives any significant adverse comments on this direct final rule by December 9, 2020, then the NRC will publish a document that withdraws this action and will subsequently address the comments received in a final rule as a response to the companion proposed rule published in the Proposed Rules section of this issue of the Federal Register . Absent significant modifications to the proposed revisions requiring republication, the NRC will not initiate a second comment period on this action.

A significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. A comment is adverse and significant if:

(1) The comment opposes the rule and provides a reason sufficient to require a substantive response in a notice-and-comment process. For example, a substantive response is required when:

(a) The comment causes the NRC to reevaluate (or reconsider) its position or conduct additional analysis;

(b) The comment raises an issue serious enough to warrant a substantive response to clarify or complete the record; or

(c) The comment raises a relevant issue that was not previously addressed or considered by the NRC.

(2) The comment proposes a change or an addition to the rule, and it is apparent that the rule would be ineffective or unacceptable without incorporation of the change or addition.

(3) The comment causes the NRC to make a change (other than editorial) to the rule, certificate of compliance, or technical specifications.

Section 218(a) of the Nuclear Waste Policy Act of 1982, as amended, requires that “[t]he Secretary [of the Department of Energy] shall establish a demonstration program, in cooperation with the private sector, for the dry storage of spent nuclear fuel at civilian nuclear power reactor sites, with the objective of establishing one or more technologies that the [Nuclear Regulatory] Commission may, by rule, approve for use at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for additional site-specific approvals by the Commission.” Section 133 of the Nuclear Waste Policy Act states, in part, that “[t]he Commission shall, by rule, establish procedures for the licensing of any technology approved by the Commission under Section 219(a) [sic: 218(a)] for use at the site of any civilian nuclear power reactor.”

To implement this mandate, the Commission approved dry storage of spent nuclear fuel in NRC-approved casks under a general license by publishing a final rule that added a new subpart K in part 72 of title 10 of the Code of Federal Regulations (10 CFR) entitled “General License for Storage of Spent Fuel at Power Reactor Sites” (55 FR 29181; July 18, 1990). This rule also established a new subpart L in 10 CFR part 72 entitled “Approval of Spent Fuel Storage Casks,” which contains procedures and criteria for obtaining NRC approval of spent fuel storage cask designs. The NRC subsequently issued a final rule on March 6, 2015 (80 FR 12073), as corrected (80 FR 15679; March 25, 2015), that approved the Holtec International HI-STORM UMAX Canister Storage System and added it to the list of NRC-approved cask designs in § 72.214, “List of approved spent fuel storage casks,” as Certificate of Compliance No. 1040.

On September 28, 2018, Holtec International submitted a request to amend Certificate of Compliance No. 1040 for the HI-STORM UMAX Canister Storage System. Holtec International supplemented its request on the following dates: May 21, 2019; November 1, 2019; December 20, 2019; March 30, 2020; and April 13, 2020. Amendment No. 4 revises the certificate of compliance to (1) update the technical specifications for radiation protection regarding the dose rate limit for the vertical ventilated module lid, (2) update the technical specifications for the vent blockage limiting condition for operation, and (3) add a Type 1 version of multi-purpose canister MPC-37.

As documented in the preliminary safety evaluation report, the NRC performed a safety evaluation of the proposed certificate of compliance amendment request. The NRC determined that this amendment does not reflect a significant change in design or fabrication of the cask. Specifically, the NRC determined that the design of the cask would continue to maintain confinement, shielding, and criticality control in the event of each evaluated accident condition. This amendment does not reflect a significant change in design or fabrication of the cask. In addition, any resulting occupational exposure or offsite dose rates from the implementation of Amendment No. 4 would remain well within the limits specified by 10 CFR part 20, “Standards for Protection Against Radiation.” Thus, the NRC found there will be no significant change in the types or amounts of any effluent released, no significant increase in the individual or cumulative radiation exposure, and no significant increase in the potential for or consequences from radiological accidents.

The NRC determined that the amended Holtec International HI-STORM UMAX Canister Storage System cask design, when used under the conditions specified in the certificate of compliance, the technical specifications, and the NRC's regulations, will meet the requirements of 10 CFR part 72; therefore, adequate protection of public health and safety will continue to be reasonably assured. When this direct final rule becomes effective, persons who hold a general license under § 72.210 may, consistent with license conditions under § 72.212, load spent nuclear fuel into Holtec International HI-STORM UMAX Canister Storage System casks that meet the criteria of Amendment No. 4 to Certificate of Compliance No. 1040.

The National Technology Transfer and Advancement Act of 1995 (Pub. L. 104-113) requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this direct final rule, the NRC revises the Holtec International HI-STORM UMAX Canister Storage System cask design listed in § 72.214, “List of approved spent fuel storage casks.” This action does not constitute the establishment of a standard that contains generally applicable requirements.

Under the “Agreement State Program Policy Statement” approved by the Commission on October 2, 2017, and published in the Federal Register on October 18, 2017 (82 FR 48535), this rule is classified as Compatibility Category NRC—Areas of Exclusive NRC Regulatory Authority. The NRC program elements in this category are those that relate directly to areas of regulation reserved to the NRC by the Atomic Energy Act of 1954, as amended, or the provisions of 10 CFR chapter I. Therefore, compatibility is not required for program elements in this category. Although an Agreement State may not adopt program elements reserved to the NRC, and the Category “NRC” does not confer regulatory authority on the State, the State may wish to inform its licensees of certain requirements by means consistent with the State's administrative procedure laws.

The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31885).

Under the National Environmental Policy Act of 1969, as amended, and the NRC's regulations in 10 CFR part 51, “Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions,” the NRC has determined that this direct final rule, if adopted, would not be a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement is not required. The NRC has made a finding of no significant impact based on the basis of this environmental assessment.

The action is to amend § 72.214 by revising the Holtec International HI-STORM UMAX Canister Storage System listing in the “List of approved spent fuel storage casks” to include Amendment No. 4 to Certificate of Compliance No. 1040.

This direct final rule amends the certificate of compliance for the Holtec International HI-STORM UMAX Canister Storage System design within the list of approved spent fuel storage casks to allow power reactor licensees to store spent fuel at reactor sites in casks with the approved modifications under a general license. Specifically, Amendment No. 4 revises the certificate of compliance to (1) update the technical specifications for radiation protection regarding the dose rate limit for the vertical ventilated module lid, (2) update the technical specifications for the vent blockage limiting condition for operation, and (3) add a Type 1 version of multi-purpose canister MPC-37.

On July 18, 1990 (55 FR 29181), the NRC issued an amendment to 10 CFR part 72 to provide for the storage of spent fuel under a general license in cask designs approved by the NRC. The potential environmental impact of using NRC-approved storage casks was analyzed in the environmental assessment for the 1990 final rule. The environmental assessment for Amendment No. 4 tiers off the environmental assessment for the July 18, 1990, final rule. Tiering on past environmental assessments is a standard process under the National Environmental Policy Act of 1969, as amended. The Holtec International HI-STORM UMAX Canister Storage System is designed to mitigate the effects of design basis accidents that could occur during storage. Design basis accidents account for human-induced events and the most severe natural phenomena reported for the site and surrounding area. Postulated accidents analyzed for an independent spent fuel storage installation, the type of facility at which a holder of a power reactor operating license would store spent fuel in casks in accordance with 10 CFR part 72, can include tornado winds and tornado-generated missiles, a design basis earthquake, a design basis flood, an accidental cask drop, lightning effects, fire, explosions, and other incidents.

The design of the cask would provide confinement, shielding, and criticality control in the event of each evaluated accident condition. If confinement, shielding, and criticality control are maintained, the environmental impacts resulting from an accident would be insignificant. This amendment does not reflect a significant change in design or fabrication of the cask. Because there are no significant design or process changes, any resulting occupational exposure or offsite dose rates from the implementation of Amendment No. 4 would remain well within the 10 CFR part 20 limits. Therefore, the proposed certificate of compliance changes will not result in any radiological or non-radiological environmental impacts that significantly differ from the environmental impacts evaluated in the environmental assessment supporting the July 18, 1990, final rule. There will be no significant change in the types or significant revisions in the amounts of any effluent released, no significant increase in the individual or cumulative radiation exposures, and no significant increase in the potential for, or consequences from, radiological accidents. The NRC documented its safety findings in the preliminary safety evaluation report.

The alternative to this action is to deny approval of Amendment No. 4 and not issue the direct final rule. Consequently, any 10 CFR part 72 general licensee that seeks to load spent nuclear fuel into the Holtec International HI-STORM UMAX Canister Storage System in accordance with the changes described in proposed Amendment No. 4 would have to request an exemption from the requirements of §§ 72.212 and 72.214. Under this alternative, interested licensees would have to prepare, and the NRC would have to review, a separate exemption request, thereby increasing the administrative burden upon the NRC and the costs to each licensee. The environmental impacts would be the same as the proposed action.

Approval of Amendment No. 4 to Certificate of Compliance No. 1040 would result in no irreversible commitment of resources.

No agencies or persons outside the NRC were contacted in connection with the preparation of this environmental assessment.

The environmental impacts of the action have been reviewed under the requirements in the National Environmental Policy Act of 1969, as amended, and the NRC's regulations in subpart A of 10 CFR part 51. Based on the foregoing environmental assessment, the NRC concludes that this direct final rule, entitled “List of Approved Spent Fuel Storage Casks: Holtec International HI-STORM UMAX Canister Storage System, Certificate of Compliance No. 1040, Amendment No. 4” will not have a significant effect on the human environment. Therefore, the NRC has determined that an environmental impact statement is not necessary for this direct final rule.

This direct final rule does not contain any new or amended collections of information subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). Existing collections of information were approved by the Office of Management and Budget, approval number 3150-0132.

The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid Office of Management and Budget control number.

Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the NRC certifies that this direct final rule will not, if issued, have a significant economic impact on a substantial number of small entities. This direct final rule affects only nuclear power plant licensees and Holtec International. These entities do not fall within the scope of the definition of small entities set forth in the Regulatory Flexibility Act or the size standards established by the NRC (§ 2.810).

On July 18, 1990 (55 FR 29181), the NRC issued an amendment to 10 CFR part 72 to provide for the storage of spent nuclear fuel under a general license in cask designs approved by the NRC. Any nuclear power reactor licensee can use NRC-approved cask designs to store spent nuclear fuel if (1) it notifies the NRC in advance, (2) the spent fuel is stored under the conditions specified in the cask's certificate of compliance, and (3) the conditions of the general license are met. A list of NRC-approved cask designs is contained in § 72.214. On March 6, 2015 (80 FR 12073), as corrected (80 FR 15679; March 25, 2015), the NRC issued an amendment to 10 CFR part 72 that approved the Holtec International HI-STORM UMAX Canister Storage System design by adding it to the list of NRC-approved cask designs in § 72.214.

On September 28, 2018, and as supplemented on May 21, 2019, November 1, 2019, December 20, 2019, March 30, 2020, and April 13, 2020, Holtec International submitted a request to amend the HI-STORM UMAX Canister Storage System as described in Section IV, “Discussion of Changes,” of this document.

The alternative to this action is to withhold approval of Amendment No. 4 and to require any 10 CFR part 72 general licensee seeking to load spent nuclear fuel into the Holtec International HI-STORM UMAX Canister Storage System under the changes described in Amendment No. 4 to request an exemption from the requirements of §§ 72.212 and 72.214. Under this alternative, each interested 10 CFR part 72 licensee would have to prepare, and the NRC would have to review, a separate exemption request, thereby increasing the administrative burden upon the NRC and the costs to each licensee.

Approval of this direct final rule is consistent with previous NRC actions. Further, as documented in the preliminary safety evaluation report and environmental assessment, this direct final rule will have no adverse effect on public health and safety or the environment. This direct final rule has no significant identifiable impact or benefit on other government agencies. Based on this regulatory analysis, the NRC concludes that the requirements of this direct final rule are commensurate with the NRC's responsibilities for public health and safety and the common defense and security. No other available alternative is believed to be as satisfactory; therefore, this action is recommended.

The NRC has determined that the backfit rule (§ 72.62) does not apply to this direct final rule. Therefore, a backfit analysis is not required. This direct final rule revises Certificate of Compliance No. 1040 for the Holtec International HI-STORM UMAX Canister Storage System, as currently listed in § 72.214. The revision consists of the changes in Amendment No. 4 previously described, as set forth in the revised certificate of compliance and technical specifications.

Amendment No. 4 to Certificate of Compliance No. 1040 for the Holtec International HI-STORM UMAX Canister Storage System was initiated by Holtec International and was not submitted in response to new NRC requirements, or an NRC request for amendment. Amendment No. 4 applies only to new casks fabricated and used under Amendment No. 4. These changes do not affect existing users of the Holtec International HI-STORM UMAX Canister Storage System, and the current Amendment No. 2 continues to be effective for existing users. Amendment No. 3 to Certificate of Compliance No. 1040 has not been issued. While existing users of this storage system may comply with the new requirements in Amendment No. 4, this would be a voluntary decision on the part of existing users.

For these reasons, Amendment No. 4 to Certificate of Compliance No. 1040 does not constitute backfitting under § 72.62 or § 50.109(a)(1), or otherwise represent an inconsistency with the issue finality provisions applicable to combined licenses in 10 CFR part 52. Accordingly, the NRC has not prepared a backfit analysis for this rulemaking.

This direct final rule is not a rule as defined in the Congressional Review Act.

The documents identified in the following table are available to interested persons as indicated.

The NRC may post materials related to this document, including public comments, on the Federal Rulemaking website at https://www.regulations.gov under Docket ID NRC-2020-0179. The Federal Rulemaking website allows you to receive alerts when changes or additions occur in a docket folder. To subscribe: (1) Navigate to the docket folder (NRC-2020-0179); (2) click the “Sign up for Email Alerts” link; and (3) enter your email address and select how frequently you would like to receive emails (daily, weekly, or monthly).

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; the Nuclear Waste Policy Act of 1982, as amended; and 5 U.S.C. 552 and 553; the NRC is adopting the following amendments to 10 CFR part 72:

The FDIC assesses all IDIs  1 an amount for deposit insurance equal to the institution's deposit insurance assessment base multiplied by its risk-based assessment rate. 2 On May 20, 2016, the FDIC published a final rule (2016 final rule) that refined the deposit insurance assessment system for established small IDIs. 3 Under the 2016 final rule, one of the measures used to calculate the assessment rate of an established small IDI is the loan mix index, a measure of the extent to which an IDI's total assets include higher-risk categories of loans.

This technical amendment corrects the historical weighted charge-off rate for loans secured by nonfarm nonresidential properties, one of the categories of loans used in the loan mix index, that is currently published in the Code of Federal Regulations. Due to an inadvertent publishing error, the rate that appeared in the Federal Register notice for the final rule on May 20, 2016 (81 FR 32179), 0.7289274, differs from the historical weighted average industrywide charge-off rate that the FDIC Board adopted on April 26, 2016, and that the FDIC uses to calculate an IDI's loan mix index, 0.7286274, by three ten-thousandths of a percentage point. The technical amendment will not affect assessments previously paid by IDIs, or assessments paid by IDIs in the future, because the value for loans secured by nonfarm nonresidential properties that the FDIC uses to calculate the loan mix index is the value adopted by the FDIC Board in the 2016 final rule.

In 2014, the FDIC published a final rule (2014 final rule) that, among other things, requires highly complex institutions—generally, those with at least $50 billion in total assets (or owned by a parent holding company with at least $500 billion in assets) or those defined as processing banks or trust companies—to measure counterparty exposure for deposit insurance assessment purposes using the Basel III standardized approach. 4 Counterparty exposure is captured in two measures—the ratio of top 20 counterparty exposures to Tier 1 capital and reserves and the ratio of the largest counterparty exposure to Tier 1 capital and reserves (collectively, the counterparty exposure measures)—which are used to determine a highly complex institution's assessment rate.

The 2014 final rule, among other things, revised footnote 2 in section VI., Description of Scorecard Measures, in appendix A to subpart A of the assessment regulations to define two terms—“secured financing transactions” (SFTs) and “default fund contribution”—used in the descriptions of the counterparty exposure measures. Due to an inadvertent publishing error, the revisions to the second footnote that were adopted by the FDIC Board on November 18, 2014, and published in the Federal Register on November 26, 2014, do not appear in the current version of the Code of Federal Regulations.

This technical amendment replaces the footnote that appears in the Code of Federal Regulations with the version adopted by the FDIC Board in the 2014 final rule. The technical amendment will not affect assessments previously paid by IDIs, or assessments paid by IDIs in the future, because the definitions the FDIC uses to calculate the counterparty exposure measures are the definitions adopted by the FDIC Board in the 2014 final rule.

For the reasons stated in the preamble, the FDIC makes the following correcting amendments to 12 CFR part 327:

The European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD 2020-0201R1, dated September 25, 2020 (referred to after this as “the MCAI”), to address an unsafe condition for the specified products. The MCAI states:

You may obtain further information by examining the MCAI in the AD docket at https://www.regulations.gov by searching for and locating Docket No. FAA-2020-0979.

This product has been approved by EASA and is approved for operation in the United States. Pursuant to our bilateral agreement with the European Community, EASA has notified us of the unsafe condition described in the MCAI. The FAA is issuing this AD because the agency evaluated all the relevant information provided by EASA and has determined that the unsafe condition described previously is likely to exist or develop in other products of the same type design.

The FAA reviewed GE Aviation Czech Alert Service Bulletin (ASB) ASB-H75-73-00-00-0038 [01], ASB-H80-73-00-00-0074 [01], ASB-H85-73-00-00-0032 [01], ASB-M601D-73-00-00-0066 [01], ASB-M601E-73-00-00-0097 [01], ASB-M601F-73-00-00-0050 [01], and ASB-M601T-73-00-00-0040 [01] (single document; formatted as service bulletin identifier [revision number]), dated September 24, 2020. The ASB describes procedures for removing and replacing the FCU and identifies the affected FCUs. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

This AD requires the removal and replacement of the FCU.

EASA AD 2020-0201R1, dated September 25, 2020, applies to GEAC M601D, M601D-1, M601D-11, M601D-11NZ, M601E, M601E-11, M601E-11A, M601E-11AS, M601E-11S, M601E-21, M601F, M601F-22, M601F-32, M601FS, M601T, H75-200, H80-100, H80-200, and H85-200 model turboprop engines. This AD does not include GEAC M601D, M601D-1, M601D-11NZ, M601E, M601E-21, M601F-22, M601F-32, M601FS, and M601T model turboprop engines as they are not type certificated in the U.S.

Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq. ) authorizes agencies to dispense with notice and comment procedures for rules when the agency, for “good cause,” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without providing notice and seeking comment prior to issuance. Further, Section 553(d) of the APA authorizes agencies to make rules effective in less than thirty days, upon a finding of good cause.

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies foregoing notice and comment prior to adoption of this rule. During ground tests performed by the manufacturer on engines equipped with affected FCUs, several occurrences of engine power fluctuations were reported. After investigation, the manufacturer determined that one or more rubber cuff sealings of the cage reinforcement inside the main metering valve of the FCU was incorrectly installed, which reduced the cuff sealing's ability to properly seal the FCU working pressure. This unsafe condition, caused by a manufacturing quality issue, may result in loss of engine thrust control and reduced control of the airplane.

FCUs installed on Group 1 engines have the highest risk of malfunction. To maintain an acceptable level of safety, these FCUs must be replaced within 10 flight hours (FHs) after the effective date of this AD. FCUs installed on Group 2 and Group 3 engines have a lower risk of malfunction than those installed on Group 1 engines. Therefore, for Group 2 engines, FCUs must be replaced within 50 FHs or 60 days after the effective day of this AD, whichever occurs first. For Group 3 engines, FCUs must be replaced within 100 FHs or 180 days after the effective date of this AD, whichever occurs first.

The FAA considers the removal of the affected FCUs to be an urgent safety issue. Accordingly, notice and opportunity for prior public comment are impracticable, pursuant to 5 U.S.C. 553(b)(3)(B).

In addition, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days, for the same reasons the FAA found good cause to forego notice and comment.

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include the docket number FAA-2020-0979 and Project Identifier MCAI-2020-01313-E at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Barbara Caufield, Aviation Safety Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The requirements of the Regulatory Flexibility Act (RFA) do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because the FAA has determined that it has good cause to adopt this rule without notice and comment, RFA analysis is not required.

The FAA estimates that this AD affects 12 engines installed on airplanes of U.S. registry.

The FAA estimates the following costs to comply with this AD:

The FAA has included all known costs in its cost estimate. According to the manufacturer, however, all of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected operators.

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

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

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

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

(2) Will not affect intrastate aviation in Alaska.

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

The FAA was notified by Gulfstream of the possibility of misassembled impellers onto the shaft of fuel boost pumps used in the production of GVII-G500 and GVII-G600 airplanes. The supplier of fuel boost pumps discovered two misassembled fuel boost pumps on two different make/models of non-Gulfstream aircraft. The Gulfstream GVII-G500 and GVII-G600 fuel boost pumps are very similar in design and are manufactured in the same facility using the same manufacturing processes, so the same condition could exist on the Gulfstream fuel boost pumps.

A misassembled fuel boost pump could result in a woodruff key becoming dislodged and causing friction between static and rotating components internal to the fuel boost pump. This friction could generate heat or sparks inside the fuel tank, which, if the pump were to run dry, could result in a fuel tank fire or fuel tank explosion.

The unsafe condition, if not addressed, could result in a potential source of ignition in the fuel tank and may lead to fire or explosion.

The FAA reviewed the following AFM supplements, which contain new warnings about operating the boost pumps with empty fuel tanks for the Abnormal Procedures and Emergency Procedures sections of the AFM. These documents are distinct because they pertain to different airplane models:

• Gulfstream Aerospace GVII-G500 Airplane Flight Manual Supplement No. GVII-G500 (Issue 1)-2020-05, dated September 8, 2020;

• Gulfstream Aerospace GVII-G500 Airplane Flight Manual Supplement No. GVII-G500-2020-06, dated September 8, 2020; and

• Gulfstream Corporation GVII-G600 Airplane Flight Manual Supplement No. GVII-G600-2020-06 dated September 8, 2020.

The FAA also reviewed the following AMM documents, which contain revised maintenance procedures pertaining to the fuel boost pump. These documents are distinct since they apply to different airplane models. Although the documents have the watermarked words “advance copy” on each page of the document, these are not advance draft copies but final versions of temporary revisions to the AMM, pending incorporation into the AMM at the next revision.

• GVII-G500 Maintenance Manual 12-13-01 Defueling Procedure—Defuel, dated August 31, 2020;

• GVII-G500 Maintenance Manual 28-26-04 Fuel Boost Pump—Prime, dated August 31, 2020;

• GVII-G600 Maintenance Manual 12-13-01 Defueling Procedure—Defuel, dated August 31, 2020;

• GVII-G600 Maintenance Manual 28-26-04 Fuel Boost Pump—Prime, dated August 31, 2020;

• GVII-G600 Maintenance Manual 28-26-04 Fuel Boost Pump—Removal/Installation, dated August 31, 2020; and

• GVII-G600 Maintenance Manual 28-26-05 Fuel Boost Pump Canister—Removal/Installation, dated August 31, 2020.

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

The FAA is issuing this AD because it evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of this same type design.

This AD requires revising the existing AFM for your airplane by adding new warnings to the Abnormal Procedures and Emergency Procedures sections. Revising the existing AFM for your airplane is not considered a maintenance action and therefore may be performed by the owner/operator (pilot) holding at least a private pilot certificate. The pilot must record compliance in the aircraft maintenance records in accordance with 14 CFR 43.9(a)(1) through (4) and 14 CFR 91.417(a)(2)(v). The record must be maintained as required by 14 CFR 91.417.

This AD also requires revising the existing AMM for your airplane by replacing maintenance procedures pertaining to the fuel boost pump.

The FAA considers this AD an interim action. The design approval holder is currently working on a modification that will address the unsafe condition identified in this AD. Once this modification action is developed, FAA-approved, and available, the FAA will consider additional rulemaking.

Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq. ) authorizes agencies to dispense with notice and comment procedures for rules when the agency, for “good cause,” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without providing notice and seeking comment prior to issuance. Further, section 553(d) of the APA authorizes agencies to make rules effective in less than thirty days, upon a finding of good cause.

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies foregoing notice and comment prior to adoption of this rule because misassembled fuel boost pump components could generate heat or sparks leading to a potential fuel tank explosion. If an operator or maintenance personnel were to run fuel boost pump dry, it could result in fuel tank fire or explosion. The FAA determined that the actions necessary to correct this condition must be accomplished within 14 days. Therefore, the FAA finds good cause that notice and opportunity for prior public comment are impracticable pursuant to 5 U.S.C. 553(b)(3)(B).

In addition, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days, for the same reasons the FAA found good cause to forgo notice and comment.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. The FAA invites you to send any written relevant data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include Docket No. FAA-2020-0898 and Project Identifier AD-2020-01284-T at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Jared Meyer, Aerospace Engineer, Atlanta ACO Branch, FAA, 107 Charles W. Grant Pkwy, Atlanta, GA 30354. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA estimates that this AD affects 80 airplanes of U.S. registry.

The FAA estimates the following costs to comply with this AD:

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

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

The requirements of the Regulatory Flexibility Act (RFA) do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because the FAA has determined that it has good cause to adopt this rule without notice and comment, RFA analysis is not required.

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

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

(2) Will not affect intrastate aviation in Alaska.

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to Airbus Helicopters Model AS350B, AS350B1, AS350B2, AS350B3, AS350BA, AS350C, AS350D, AS350D1, AS355E, AS355F, AS355F1, AS355F2, AS355N, AS355NP, EC130B4, and EC130T2 helicopters. The NPRM published in the Federal Register on April 13, 2020, (85 FR 20447). The NPRM proposed to require visually inspecting each MGB suspension bar attachment bracket for missing bolt heads. If one bolt head is missing, the proposed AD would require performing actions specified in the service information including measuring the tightening torque of the remaining bolts of that bracket, removing the attachment bracket bolts, washers, and nuts of that bracket, and sending photos and reporting certain information to Airbus Helicopters. The proposed AD would also require repairs in accordance with an FAA-approved method if two or more bolt heads are missing. The proposed requirements were intended to prevent failure of the MGB suspension bar attachment bolts due to fatigue.

The NPRM was prompted by EASA AD No. 2018-0152, dated July 18, 2018 (EASA AD 2018-0152), issued by EASA, which is the Technical Agent for the Member States of the European Union, to correct an unsafe condition for Airbus Helicopters (formerly Eurocopter, Eurocopter France) Model AS 350 B, AS 350 D, AS 350 B1, AS 350 B2, AS 350 BA, AS 350 BB, AS 350 B3, EC 130 B4, EC 130 T2, AS 355 E, AS355 F, AS355 F1, AS 355 F2, AS 355 N, and AS355 NP helicopters. EASA advises of a reported occurrence of a missing MGB suspension bar attachment bolt head.

EASA advises that investigations are ongoing to determine the root cause of this event. According to Airbus Helicopters, the missing MGB suspension bar attachment bolt head was discovered during scheduled maintenance of a Model EC 130 T2 helicopter. EASA states this condition could lead to fatigue failure of other affected bolts of the same MGB bracket, possibly resulting in loss of the MGB suspension bar and consequently loss of helicopter control. As an interim measure to address this potential unsafe condition, the EASA AD also includes Model AS 350 B, AS 350 D, AS 350 B1, AS 350 B2, AS 350 BA, AS 350 BB, AS 350 B3, EC 130 B4, AS 355 E, AS355 F, AS355 F1, AS355 F2, AS355 N, and AS355 NP helicopters in its applicability.

Accordingly, EASA AD 2018-0152 requires a one-time visual inspection to check that all MGB suspension bar attachment bracket bolt heads are present and depending on the outcome, measuring the tightening torque values of the bolts, removing and sending bolts, washers, and nuts to Airbus Helicopters, installing new bolts, washers, and nuts, sending photos and reporting certain information to Airbus Helicopters, and contacting Airbus Helicopters for approved repair instructions. EASA states EASA AD 2018-0152 is considered an interim action and further AD action may follow.

The FAA gave the public the opportunity to participate in developing this final rule. The FAA received comments from one commenter. The following presents the comments received on the NPRM and the FAA's response to the comments.

The commenter requested that this AD apply to Model AS350B3 and higher model helicopters, specifically Model AS350B3, AS350B3E, EC130B4, EC130T2, H125, and H130 helicopters. The commenter stated that, based on experience with a fleet of AS350BA and AS350B2 helicopters, the commenter has never seen a bolt head break on Model AS350BA and AS350B2 helicopters.

The FAA disagrees with removing models from the Applicability. The FAA determined that the unsafe condition exists and is likely to exist or develop on all the model helicopters included in the Applicability and is therefore requiring corrective action to address this unsafe condition on these models.

The commenter requested the manufacturer add the inspection proposed in the NPRM to the 660-hour “T” inspection and also add the inspection after a certain number of flight hours after installation. The commenter gave an example of after 165 flying hours.

The FAA disagrees; the commenter provided no technical justification for changing the compliance times.

After the NPRM was issued, the FAA discovered that Airbus Helicopters Model AS350C was inadvertently included in the proposed Applicability. This helicopter model has a different engine model and therefore is not subject to the unsafe condition. The FAA has updated the Applicability section accordingly.

These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA of the unsafe condition described in its AD. The FAA is issuing this AD after evaluating all information provided by EASA, reviewing the relevant information, considering the comments received, and determining the unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs and that air safety and the public interest require adopting the AD requirements as proposed except for the change described previously. The FAA has determined that this change is consistent with the intent that was proposed for addressing the unsafe condition and does not add any additional burden upon the public than was already proposed in the NPRM except for minor editorial changes. These minor editorial changes are consistent with the intent of the proposals in the NPRM and will not increase the economic burden on any operator nor increase the scope of this AD.

The FAA considers this AD to be an interim action. If final action is later identified, the FAA might consider further rulemaking.

The EASA AD applies to Model AS350BB helicopters, whereas this AD does not because that model is not FAA type-certificated. The EASA AD directs the operators to contact Airbus Helicopters for repairs if more than one screw head is missing, whereas this AD does not.

The FAA reviewed Airbus Helicopter Alert Service Bulletin (ASB) No. AS350-05.00.92 for Model AS350B, B1, B2, B3, BA, and D helicopters, non-FAA type-certificated Model AS350BB helicopters, and military Model AS350L1 helicopters; Airbus Helicopters ASB No. AS355-05.00.79 for Model AS355E, F, F1, F2, N, and NP helicopters; and Airbus Helicopters ASB No. EC130-05A028 for Model EC130B4 and T2 helicopters, all Revision 0 and dated July 16, 2018. This service information specifies a one-time visual inspection using a light source and a mirror, and using an endoscope for any attachment bolts that are difficult to access, for the presence of the 16 attachment bracket bolt heads of the 4 MGB suspension bars. The service information also specifies different actions depending on the results of the visual inspection.

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

The FAA also reviewed Airbus Standard Practices Manual (MTC) 20-02-05-404, Assembly by screws and nuts Joining, dated May 23, 2017. This service information specifies instructions for installing screws and nuts, tightening procedures when installing multiple bolts, tightening torque check and readjustment procedures, tooling information, measuring locking torque procedures, standard tightening torque procedures and values, torque tightening of screws in sandwich panels information, use of consumable materials and their correction coefficient values pertaining to screws, nuts, and washers, marking torque stripes, and re-installation criteria and inspection of attachment components.

The FAA estimates that this AD affects 1,277 helicopters of U.S. Registry. The FAA estimates that operators may incur the following costs in order to comply with this AD. Labor costs are estimated at $85 per work-hour.

Inspecting for any missing MGB suspension bar attachment bracket bolt heads takes about 2 work-hours for an estimated cost of $170 per helicopter and $217,090 for the U.S. fleet.

Measuring the tightening torque of three MGB suspension bar attachment bracket bolts and replacing the set of four MGB suspension bar attachment bracket bolts, washers, and nuts takes about 1 work-hour and parts cost about $50 for an estimated cost of $135 per helicopter.

Sending photos and reporting required information takes about 1 hour for an estimated cost of $85 per helicopter.

The FAA does not have the data to estimate the costs to do any FAA-approved repairs if two or more MGB suspension bar attachment bracket bolt heads are missing.

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to be approximately 1 hour 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. All responses to this collection of information are mandatory. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: Information Collection Clearance Officer, Federal Aviation Administration, 10101 Hillwood Parkway, Fort Worth, TX 76177-1524.

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

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

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

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

2. Will not affect intrastate aviation in Alaska, and

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

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

The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2020-0051, dated March 11, 2020 (“EASA AD 2020-0051”) (also referred to as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus SAS Model A300 B4-603, A300 B4-620, A300 B4-622, A300 B4-605R, A300 B4-622R, A300 F4-605R, A300 F4-622R, A300 C4-620, and A300 C4-605R Variant F airplanes. Model A300 C4-620 airplanes are not certificated by the FAA and are not included on the U.S. type certificate data sheet; this AD therefore does not include those airplanes in the applicability.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2017-18-17, Amendment 39-19026 (82 FR 43160, September 14, 2017) (“AD 2017-18-17”). AD 2017-18-17 applied to all Airbus SAS Model A300 B4-603, A300 B4-620, A300 B4-622, A300 B4-605R, A300 B4-622R, A300 F4-605R, A300 F4-622R, and A300 C4-605R Variant F airplanes. The NPRM published in the Federal Register on June 8, 2020 (85 FR 35016). The NPRM was prompted by a report indicating that the material used to manufacture the upper frame feet was changed and negatively affected the fatigue life of the frame feet, and a determination that more work is required for certain airplanes that were previously modified. The NPRM proposed to continue to require the actions in AD 2017-18-17, as specified in an EASA AD. The NPRM also proposed to require, for certain airplanes, an inspection to determine if rotating probe inspections were performed prior to oversizing of the open-holes, and repair if necessary, as specified in an EASA AD.

The FAA is issuing this AD to address cracking of the center section of the fuselage, which could result in a ruptured frame foot and reduced structural integrity of the airplane. See the MCAI for additional background information.

The FAA gave the public the opportunity to participate in developing this final rule. The following presents the comment received on the NPRM and the FAA's response to each comment.

FedEx requested that the FAA provide credit for accomplishing the required actions using Airbus SAS Service Bulletin A300-53-6178, dated March 17, 2015, provided the appropriate rotating probe inspection is performed before oversizing the open holes. FedEx stated that its fleet is already in compliance with the required actions but used Airbus Service Bulletin A300-53-6178, dated March 17, 2015, not the current revision Airbus Service Bulletin A300-53-6178, Revision 01, dated September 20, 2019.

The FAA disagrees with the request. This AD incorporated by reference EASA AD 2020-0051 as the appropriate material to use to comply with this AD. Paragraph (3) of EASA AD 2020-0051 specifies that, for airplanes on which the modification specified in Airbus Service Bulletin A300-53-6178, dated March 17, 2015, was accomplished, additional work must be done. That additional work consists of determining whether or not a rotating probe inspection was performed before oversizing of the open-holes and, depending on findings, additional corrective actions. Therefore, the credit the commenter requested is already included in the requirements of this AD. The FAA has not revised this AD in this regard.

The FAA reviewed the relevant data, considered the comment received, and determined that air safety and the public interest require adopting this final rule as proposed, except for minor editorial changes. The FAA has determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM for addressing the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

EASA AD 2020-0051 describes procedures for modifying certain fuselage frames; a repair on certain modified airplanes; and, for certain airplanes, an inspection to determine if a rotating probe inspection was performed prior to oversizing of the open-holes, contacting the manufacturer for post-modification work instructions, and repair. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 65 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA has received no definitive data that would enable providing cost estimates for the on-condition repairs specified in this AD.

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

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

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

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

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

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

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

The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2020-0040R1, dated June 16, 2020 (“EASA AD 2020-0040R1”) (also referred to as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus SAS Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes; and Model A320-211, -212, -214, -215, -216, -231, -232, and -233 airplanes. Model A320-215 airplanes are not certified by the FAA and are not included on the U.S. type certificate data sheet; this AD therefore does not include those airplanes in the applicability. EASA AD 2020-0040R1 superseded French AD 2002-259(B), dated May 15, 2002 (which corresponded to FAA AD 2004-25-02, Amendment 39-13889 (70 FR 1184, January 6, 2005) (“AD 2004-25-02”)).

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 99-01-19, Amendment 39-10987 (64 FR 1114, January 8, 1999) (“AD 99-01-19”); and AD 2004-25-02. AD 99-01-19 and AD 2004-25-02 applied to certain Airbus SAS Model A320 series airplanes. The NPRM published in the Federal Register on June 4, 2020 (85 FR 34371). The NPRM was prompted by a report that during full scale tests to support the Model A320 structure ESG exercise, several cracks were found on both sides of the overwing emergency exit door cut-outs at fuselage section 15. The NPRM proposed to continue to require, for certain airplanes, repetitive inspections of the fastener holes for any cracking, and repair if necessary, and would provide an optional terminating action for the fastener hole inspections. The NPRM also proposed to revise the applicability to include additional airplanes and requires, for all airplanes, inspections of the emergency exit door structure for any cracking and repair if necessary, as specified in EASA AD 2020-0040R1.

The FAA is issuing this AD to address fatigue cracking of the fuselage, which could result in reduced structural integrity of the airplane. See the MCAI for additional background information.

The FAA gave the public the opportunity to participate in developing this final rule. The following presents the comments received on the NPRM and the FAA's response to each comment.

American Airlines (AAL) and United Airlines (UAL) requested that the NPRM specify EASA AD 2020-0040R1, which is the latest EASA AD, and it revises the applicability to exclude airplanes that have embodied certain modifications in production, and that those airplanes are, therefore, not applicable to the NPRM.

AAL stated that FAA AD 2004-25-02 and EASA AD 2020-0040R1 contain a difference in the applicability. AAL stated that FAA AD 2004-25-02 applies to Airbus Model A320 airplanes without modification 21346 embodied in production. AAL also stated that EASA AD 2020-0040R1 applies to all Airbus Model A319 and A320 airplanes, except for those with modification 160001 embodied in production, or Airbus Service Bulletin A320-57-1193 embodied in service, or Model A319 airplanes that have had modification 28238, 28162, and 28342 embodied in production. AAL commented that some of its Model A319 airplanes have had modification 160001 embodied in production, but would still be required to accomplish the actions specified in paragraph (k) of the NPRM.

The FAA agrees with the comment. The FAA has revised all applicable sections in this final rule to specify EASA AD 2020-0040R1, dated June 16, 2020, which clarifies the conditions and applicability for certain airplanes as of the effective date of this final rule. For clarification, airplane models that have embodied certain modifications or service information in production, paragraph (k) of this AD does not apply. The FAA has also determined that no additional work is required for airplanes on which the actions specified in EASA AD 2020-0040, dated February 28, 2020, have already been done.

The FAA inadvertently omitted paragraph (l)(4) from the proposed AD, and has added it to this AD to clarify that, “The “Remarks” section of EASA AD 2020-0040R1 does not apply to this AD.”

The FAA reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this final rule with the change described previously and minor editorial changes. The FAA has determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM for addressing the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

The FAA also determined that these changes will not increase the economic burden on any operator or increase the scope of this final rule.

EASA AD 2020-0040R1 describes, among other actions, procedures for inspections of the emergency exit door structure for any cracking and repair, if necessary.

Airbus has issued Service Bulletin A320-53-1031, Revision 02, dated December 5, 2001. This service information describes procedures for repetitive rotating probe inspections of the fasteners holes and repair if necessary.

This AD also requires Airbus Service Bulletin A320-53-1032, Revision 02, dated December 5, 2001, which the Director of the Federal Register approved for incorporation by reference as of February 10, 2005 (70 FR 1184, January 6, 2005).

This AD also requires Airbus Service Bulletin A320-53-1032, Revision 01, dated January 15, 1998, which the Director of the Federal Register approved for incorporation by reference as of February 12, 1999 (64 FR 1114, January 8, 1999).

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

The FAA estimates that this AD affects 800 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates the following costs to do any necessary on-condition actions that would be required based on the results of any required actions. The FAA has no way of determining the number of aircraft that might need these on-condition actions:

The FAA has received no definitive data that would enable the agency to provide cost estimates for certain other repairs specified in this AD.

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

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

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to Pilatus Model PC-24 airplanes with a certain part-numbered flexible saddle clamp installed between frame 34 and 36. The NPRM published in the Federal Register on July 30, 2020 (85 FR 45810). The NPRM proposed to require actions to correct the unsafe condition on the specified products and was prompted by MCAI originated by the European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union. EASA issued AD No. 2019-0240, dated September 25, 2019 (referred to after this as “the MCAI”), which states:

You may examine the MCAI on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2020-0719.

The FAA gave the public the opportunity to participate in developing this final rule. The FAA received no comments on the NPRM or on the determination of the cost to the public.

The FAA reviewed the relevant data and determined that air safety and the public interest require adopting this final rule as proposed.

The FAA reviewed Pilatus PC-24 Service Bulletin No. 28-002, dated May 3, 2019. The service information contains procedures for replacing the two flexible saddle clamps on the left-hand (LH) motive-flow fuel pipe and the two flexible saddle clamps on the right-hand (RH) motive-flow fuel pipe with fixed saddle clamps. This service information also contains procedures for replacing the four O-rings on the LH and RH motive-flow fuel pipes. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD will affect 16 products of U.S. registry. The FAA also estimates that it will take about 7 work-hours per product to comply with the requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $5,000 per product.

Based on these figures, the FAA estimates the cost of the AD on U.S. operators will be $89,520 or $5,595 per product.

According to the manufacturer, all or some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. The FAA does not control warranty coverage for affected individuals. As a result, the FAA has included all costs in this cost estimate.

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

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

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this AD:

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

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

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

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

Section 4s(e) of the Commodity Exchange Act (“CEA”)  1 requires the Commission to adopt rules establishing minimum initial and variation margin requirements for all swaps  2 that are (i) entered into by an SD or MSP for which there is not a prudential regulator  3 (collectively, “covered swap entities” or “CSEs”) and (ii) not cleared by a registered derivatives clearing organization (“uncleared swaps”). 4 To offset the greater risk to the SD  5 or MSP  6 and the financial system arising from the use of uncleared swaps, these requirements must (i) help ensure the safety and soundness of the SD or MSP and (ii) be appropriate for the risk associated with the uncleared swaps held by the SD or MSP. 7

The Basel Committee on Banking Supervision and the International Organization of Securities Commissions (“BCBS/IOSCO”) established an international framework for margin requirements for uncleared derivatives in September 2013 (the “BCBS/IOSCO Framework”). 8 After the establishment of the BCBS/IOSCO Framework, on January 6, 2016, the CFTC, consistent with Section 4s(e), promulgated rules requiring CSEs to collect and post initial and variation margin for uncleared swaps, 9 adopting the implementation schedule set forth in the BCBS/IOSCO Framework, including the revised implementation schedule adopted on March 18, 2015. 10

In July 2019, BCBS/IOSCO further revised the framework to extend the implementation schedule to September 1, 2021. 11 Consistent with this revision to the international framework, the Commission promulgated the April 2020 Final Rule, 12 which amended the compliance schedule for the IM requirements under the CFTC Margin Rule by splitting the last phase of compliance into two compliance phases beginning on September 1, 2020, and September 1, 2021, respectively. 13

The World Health Organization declared the coronavirus disease 2019 (“COVID-19”) outbreak a global pandemic on March 11, 2020. 14 On March 13, 2020, President Donald J. Trump declared a national emergency due to the COVID-19 pandemic. 15 The disease has impacted individuals across the world and severely disrupted domestic and international business, and adversely impacted the global economy.

In response to significant concerns regarding the COVID-19 outbreak, BCBS/IOSCO decided to amend its margin policy framework to further extend the implementation schedule for the margin requirements for non-centrally cleared derivatives by one year. 16 BCBS/IOSCO, in a joint statement, stated that the extension would provide additional operational capacity for firms to respond to the immediate impact of COVID-19 and at the same time facilitate firms' diligent efforts to comply with the requirements by the revised deadlines. 17

After taking into consideration the revised BCBS/IOSCO implementation schedule, in May 2020, the Commission amended the IM compliance schedule for certain entities by one year (“IFR Extension Group”), which otherwise would have been required to comply with the IM requirements beginning on September 1, 2020, to extend the compliance date to September 1, 2021. 18 The Commission accomplished this change by means of an interim final rule (“IFR”)  19 in order to address the immediate impact of the COVID-19 pandemic on the IFR Extension Group in an expedited and timely manner; however, the Commission did not extend the compliance date for the Smaller Portfolio Group, which is still September 1, 2021, the same day as the revised IFR Extension Group compliance date.

As a result of the IFR, the IFR Extension Group and the Smaller Portfolio Group are effectively consolidated into one phase and will be required to begin compliance at the same time on September 1, 2021. The IFR Extension Group and the Smaller Portfolio Group will face the same issues that the April 2020 Final Rule intended to address, including the limited number of entities that provide IM required services. In recognition of this concern, the Commission, after adopting the IFR extending the IFR Extension Group compliance date to September 1, 2021, approved a notice of proposed rulemaking to amend and extend the IM compliance schedule for the Smaller Portfolio Group to September 1, 2022 (“Proposal”). 20

The Commission is adopting the Final Rule to amend the CFTC Margin Rule to extend the compliance schedule for the IM requirements for the Smaller Portfolio Group. As a result of this rule amendment, the compliance date of September 1, 2021, applicable to the Smaller Portfolio Group, will be delayed by one year, and entities in this group will now be required to comply with the IM requirements in a final sixth phase beginning on September 1, 2022. As stated in the Proposal, the extension of the schedule for compliance with the IM requirements is consistent with the 2020 BCBS/IOSCO Margin Framework and similar action undertaken by the U.S. prudential regulators and the Commission's international counterparts. 21

The Commission received one comment letter expressing support for the Proposal to extend the CFTC compliance schedule for the Smaller Portfolio Group. 22 This comment letter, which was a joint industry letter submitted by eleven trade associations, stated that deferral of the Smaller Portfolio Group compliance date is necessary to facilitate orderly preparation for the exchange of regulatory IM between CSEs and covered counterparties expected to come into the scope of the IM requirements in the last phases of compliance. The comment letter went on to note that given the disruptive nature of the pandemic, notwithstanding robust business continuity plans, efforts to prepare for the final phases of regulatory IM have been disrupted due to personnel, systems, and other issues, and, therefore, the commenters appreciate the additional time afforded to market participants in the Proposal.

Covered swap entities are required to post and collect IM with counterparties that are SDs, MSPs, or financial end users with material swap exposure (“MSE”)  23 (“covered counterparties”) in accordance with a phased compliance schedule set forth in Commission regulation 23.161. 24 The compliance schedule, which originally extended from September 1, 2016 to September 1, 2020, and comprised five phases, brings into compliance with the IM requirements CSEs and covered counterparties on staggered dates, starting with entities with the largest AANA of uncleared swaps and certain other financial products, and then progressively with successively lesser AANA.

The April 2020 Final Rule split the fifth and last phase of compliance into two phases, extending the compliance date for the Smaller Portfolio Group to September 1, 2021. Subsequently, the IFR extended the IFR Extension Group's September 1, 2020 compliance date to September 1, 2021, and as a result, the IFR Extension Group and Smaller Portfolio Group would be required to begin IM compliance on the same day absent the Commission's adoption of this Final Rule.

Absent the Commission's adoption of the Proposal in this Final Rule, the onset of the compliance phase starting on September 1, 2021, would result in a very large number of entities coming into compliance simultaneously, because the AANA threshold for compliance with the IM requirements would be significantly reduced. Specifically, entities in the fourth phase were subject to a $750 billion AANA threshold, and beginning on September 1, 2021, under the schedule being revised by the Final Rule, entities will come within the scope of IM compliance if their AANA exceeds $8 billion. According to the CFTC's Office of the Chief Economist (“OCE”), compared with the first through fourth phase of compliance, which brought fewer than 40 entities into scope, the two groups now subject to the September 1, 2021 compliance date will bring into scope approximately 670 entities, along with 7,500 swap trading relationships. 25 This means that approximately 670 entities may have to amend or enter into up to 7,500 new sets of credit support or other IM agreements in order to continue to engage in swap transactions.

The Commission adopted the April 2020 Final Rule, which postponed the compliance date for the Smaller Portfolio Group, to address concerns that the large number of counterparties preparing to meet the September 1, 2020 deadline would seek to engage the same limited number of entities that provide IM required services, involving, among other things, the preparation of IM-related documentation, the approval and implementation of risk-based models for IM calculation, and in some cases the establishment of custodial arrangements. In the preamble to the April 2020 Final Rule, the Commission stated that compliance delays could lead to disruption in the markets; for example, some counterparties could, for a time, be restricted from entering into uncleared swaps and therefore might be unable to use swaps to hedge their financial risk.

Because the IFR moved the compliance date for the IFR Extension Group to the same date as the Smaller Portfolio Group in response to the COVID-19 pandemic, both groups would face, absent the Commission's adoption of this Final Rule, effectively the same issues that the April 2020 Final Rule intended to address, including the limited number of entities that provide IM-required services. The Commission is adopting the Final Rule to further delay the compliance date for the Smaller Portfolio Group entities to alleviate the potential market disruption described above, consistent with the rationale for the Commission's adoption of the April 2020 Final Rule.

The Final Rule will align the CFTC Margin Rule with the 2020 BCBS/IOSCO Margin Framework and is in line with similar efforts by the U.S. prudential regulators and international counterparts. 26 The Final Rule will thus advance the Commission's goal of achieving regulatory harmonization with respect to uncleared swaps margin and may help reduce regulatory arbitrage.

The Commission notes that the Smaller Portfolio Group comprises entities with a relatively small amount of swap activity. The OCE estimates that the average AANA per entity subject to the original September 1, 2020 compliance date is about $59 billion, compared to an average $10.6 trillion AANA for each entity in the earlier phases 1, 2, and 3 and $1 trillion in phase 4. OCE also estimates that the total AANA for the Smaller Portfolio Group would be approximately four percent of the total AANA across all the phases. 27 Given the relatively small amount of swap activity of entities in the Smaller Portfolio Group, the Commission believes that delaying compliance with the IM requirements by one year for such group will have a muted impact on the systemic risk mitigating effects of the IM requirements. In addition, the Commission notes that the potential for systemic risk also is reduced because the Final Rule does not relieve Smaller Portfolio Group firms from their existing obligations to cover their current exposure on a daily basis through mandated variation margin payments once such firms have reached the minimum transfer amount, as this term is defined in the Commission's rules. 28

Although the impact of Smaller Portfolio Group swap activity on systemic risk is likely to be muted during the one year delay, the Commission notes that the time limited risk for the additional year should not be interpreted as dismissive of the longer term regulatory implications of this swap activity. The Commission believes that the exchange of IM by entities with relatively small portfolios supports the health and stability of the overall financial system.

The Paperwork Reduction Act of 1995 (“PRA”)  29 imposes certain requirements on Federal agencies, including the Commission, in connection with their conducting or sponsoring any collection of information, as defined by the PRA. The Commission may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid Office of Management and Budget control number. This Final Rule, as adopted, contains no requirements subject to the PRA.

The Regulatory Flexibility Act (“RFA”) requires that agencies, in promulgating regulations, consider whether the regulations they propose will have a significant economic impact on a substantial number of small entities, and, if so, to provide a flexibility analysis regarding the economic impact on those entities. 30 In the Proposal, the Commission certified that it would not have a significant economic impact on a substantial number of small entities. The Commission requested comments with respect to the RFA and received no comments.

As discussed in the Proposal, the Final Rule only affects SDs and MSPs that are subject to the CFTC Margin Rule and their covered counterparties, all of which are required to be eligible contract participants (“ECPs”). 31 The Commission has previously determined that SDs, MSPs, and ECPs are not small entities for purposes of the RFA. 32 Therefore, the Commission believes that this Final Rule will not have a significant economic impact on a substantial number of small entities, as defined in the RFA.

Accordingly, the Chairman, on behalf of the Commission, hereby certifies pursuant to 5 U.S.C. 605(b) that this Final Rule will not have a significant economic impact on a substantial number of small entities.

Section 15(a) of the CEA requires the Commission to consider the costs and benefits of its actions before promulgating a regulation under the CEA. Section 15(a) further specifies that the costs and benefits shall be evaluated in light of the following five broad areas of market and public concern: (1) Protection of market participants and the public; (2) efficiency, competitiveness, and financial integrity of futures markets; (3) price discovery; (4) sound risk management practices; and (5) other public interest considerations. The Commission considers the costs and benefits resulting from its discretionary determinations with respect to the section 15(a) considerations. Further, the Commission has considered the extraterritorial reach of the Final Rule and notes where this reach may be especially relevant.

This Final Rule extends the compliance schedule for the CFTC Margin Rule for CSEs and covered counterparties in the Smaller Portfolio Group, including financial end user counterparties exceeding the MSE threshold of $8 billion in AANA. As a result of the Commission's adoption of this Final Rule, these entities will come into scope in a final sixth phase, which will begin on September 1, 2022.

As discussed above, the Commission believes that with the earlier adoption of the IFR and the resulting reapplication of the same compliance deadline for both the Smaller Portfolio Group and the IFR Extension Group, the resulting large number of counterparties that would have been required to comply with the IM requirements for the first time on September 1, 2021, absent the Final Rule, could have caused certain market disruptions. Some CSEs and covered counterparties would have been strained given the demand for resources and services to meet the September 2021 deadline and operationalize the exchange of IM, involving, among other things, counterparty onboarding, approval and implementation of risk-based models for the calculation of IM, and documentation associated with the exchange of IM.

The baseline against which the benefits and costs associated with this Final Rule are compared is the uncleared swaps markets as they exist today, including the impact of the compliance schedule being amended herein, which would have required IM compliance by September 1, 2021. With this as the baseline, the following are the benefits and costs of this Final Rule.

The Commission sought comment on all aspects of the cost and benefit considerations in the Proposal but received no substantive comments.

As described above, this Final Rule extends the compliance schedule for the IM requirements for the Smaller Portfolio Group to September 1, 2022. The extension benefits entities in the Smaller Portfolio Group by allowing them to trade uncleared swaps more easily and cheaply over this period. It also benefits entities in the IFR Extension Group by making it easier for them to obtain the resources needed to comply with the IM requirements. This Final Rule is specifically intended to alleviate the potential market disruption resulting from the large number of counterparties that would have come into scope on September 1, 2021, under the compliance schedule being amended, and the strain on the uncleared swaps markets resulting from the increased demand for limited resources and services to set up operations to comply with the IM requirements, including counterparty onboarding, adoption and implementation of risk-based models to calculate IM, and documentation associated with the exchange of IM. In contrast with the CFTC's existing requirements mandating that the entities in the Smaller Portfolio Group comply with the IM requirements at the same time as entities in the IFR Extension Group, the Final Rule reduces the potential for bottlenecks by creating a one-year separation in the applicable compliance dates for the two categories of entities.

The Final Rule provides a 12-month delay for smaller counterparties that comprise the Smaller Portfolio Group to September 1, 2022, whose swap trading may not pose the same level of risk as entities in the IFR Extension Group, to prepare for their compliance with the IM requirements. The Final Rule therefore promotes the smooth and orderly transition into IM compliance for both the IFR Extension Group and the Smaller Portfolio Group.

The Final Rule amends the CFTC Margin Rule consistent with the 2020 BCBS/IOSCO Margin Framework and the prudential regulators' June 2020 IFR amending the IM compliance schedule. The Final Rule therefore promotes harmonization with international and domestic margin regulatory requirements, thereby reducing the potential for regulatory arbitrage.

The Final Rule extends the time frame for compliance with the IM requirements for the smallest, in terms of notional amount, CSEs and covered counterparties, including SDs and MSPs and financial end users that exceed an MSE of $8 billion, by an additional 12 months. Uncleared swaps entered into during this period with the smallest CSEs may be treated as legacy swaps not subject to the IM requirements. As IM might not be required to be collected on some of these swaps, 33 the one-year compliance delay may increase the level of counterparty credit risk to the financial system. While potentially meaningful, in the Commission's view this risk is a relatively lesser concern because these legacy swap portfolios would be entered into with counterparties that engage in lower levels of notional trading.

In light of the foregoing, the CFTC has evaluated the costs and benefits of this Final Rule pursuant to the five considerations identified in section 15(a) of the CEA as follows:

This Final Rule will protect market participants and the public against the potential disruption that may have been caused by the large number of counterparties that would have come into the scope of the IM requirements on September 1, 2021, under the compliance schedule being amended by this Final Rule.

Under the revised compliance schedule set forth in the Final Rule, fewer counterparties will come into scope by September 1, 2021, and many small counterparties will be able to defer compliance until the last compliance date on September 1, 2022. As such, the demand for resources and services to achieve operational readiness will be reduced, mitigating the potential strain on the uncleared swaps markets.

Inasmuch as this Final Rule delays the implementation of IM for the smallest CSEs, there may not be as much IM posted to protect the financial system as would otherwise be the case.

The Final Rule is expected to make the uncleared swaps markets more efficient by facilitating counterparties' transition into compliance with the IM requirements, thus avoiding inefficiencies in the documentation and implementation process. Counterparties will have additional time to document their swap relationships and set up adequate processes to operationalize the exchange of IM. As such, the Final Rule could promote more even competition among counterparties in the uncleared swaps markets, as the one-year delay period may remove the potential incentive for CSEs to prioritize arrangements with larger counterparties to the detriment of smaller counterparties and may thus help maintain the current state of market efficiency.

By preventing the market disruption that would have resulted from the large number of counterparties that would have come into scope by September 1, 2021, and the use of finite financial infrastructure resources, the Final Rule promotes the financial integrity of the markets. On the other hand, for a one-year period, there will be less IM posted overall, making uncleared swaps markets more susceptible to financial contagion where the default of one counterparty could lead to subsequent defaults of other counterparties, potentially harming market integrity.

This Final Rule may enhance or negatively impact price discovery. Absent the Final Rule, counterparties, in particular smaller counterparties, may have been discouraged from trading uncleared swaps because they may not have been able to secure resources and services in a timely manner to operationalize the exchange of IM. The resultant reduction in uncleared swaps trading may have reduced liquidity and harmed price discovery. Conversely, the delay in implementation of the IM requirements for the Smaller Portfolio Group may cause those counterparties to adjust the pricing of their swaps to incorporate additional risks that would otherwise have been covered by IM. These additional adjustments could result in pricing differentiations between swaps entered into by some Smaller Portfolio Group entities and entities already subject to the margin requirements. As a result, the ability of entities in the Smaller Portfolio Group to compare realized trade prices may be reduced, harming effective market price discovery by these entities.

As discussed above, the Final Rule will delay the compliance date for the Smaller Portfolio Group by one year. As a result, swaps entered into during the one-year period will not be subject to the IM requirements, potentially increasing the level of counterparty credit risk to the financial system. At the same time, the Final Rule will reduce the potential market disruption that could have resulted from the large number of counterparties that would have come into the scope of the IM requirements at the end of the compliance schedule being amended, which would have required compliance by September 1, 2021. The delayed compliance schedule will alleviate the potential disruption in establishing the financial infrastructure for the exchange of IM between in-scope entities and will give counterparties time to prepare for IM compliance and to establish operational processes tailored to their uncleared swaps and associated risks. In addition, to the extent some entities would have been precluded from trading swaps during that one-year period, the rule allows those firms to continue their current risk management practices.

The Final Rule promotes harmonization with international and domestic margin regulatory requirements, reducing the potential for regulatory arbitrage. The Final Rule amends the CFTC Margin Rule consistent with the 2020 BCBS/IOSCO Margin Framework, and the prudential regulators' June 2020 IFR amending the IM compliance schedule.

Section 15(b) of the CEA requires the Commission to “take into consideration the public interest to be protected by the antitrust laws and endeavor to take the least anticompetitive means of achieving the purposes of this Act, in issuing any order or adopting any Commission rule or regulation (including any exemption under section 4(c) or 4c(b)), or in requiring or approving any bylaw, rule, or regulation of a contract market or registered futures association established pursuant to section 17 of this Act.”  34

The Commission believes that the public interest to be protected by the antitrust laws is generally to protect competition. The Commission requested comment on whether this Proposal implicates any other specific public interest to be protected by the antitrust laws and received no comments.

The Commission has considered this Final Rule to determine whether it is anticompetitive and has identified no anticompetitive effects. The Commission requested comments on whether the Proposal was anticompetitive and, if so, what the anticompetitive effects were, and received no comments.

Because the Commission has determined that this Final Rule is not anticompetitive and has no anticompetitive effects, the Commission has not identified any less anticompetitive means of achieving the purposes of the CEA.

For the reasons stated in the preamble, the Commodity Futures Trading Commission amends 17 CFR part 23 as follows:

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, State laws and regulations that govern surface coal mining and reclamation operations in accordance with the Act and consistent with the Federal regulations. 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the program on July 30, 1982. You can find background information on the Pennsylvania program, including the Secretary's findings, the disposition of comments, and conditions of approval in the July 30, 1982, Federal Register (47 FR 33050). You can also find later actions concerning Pennsylvania's program and program amendments at 30 CFR 938.11, 938.12, 938.13, 938.15, and 938.16.

The Clean Water Act (CWA) (33 U.S.C. 1251 et seq. ) is based on the principle of federalism, with distinct roles for both the U.S. Environmental Protection Agency (EPA) and the states. The goal of the CWA is to restore and maintain the chemical, physical, and biological integrity of the nation's waters. The CWA generally focuses on two types of controls for point source (single identifiable source of pollution) discharges of pollutants to waters of the United States: (1) Water quality-based controls, based on State water quality standards, and (2) technology-based controls, based on effluent limitations guidelines and standards (ELGS).

Effluent limitation guidelines, which are a subject of this notice, are regulatory standards established by the EPA as part of its NPDES program and apply to different categories of wastewater discharged to surface waters as authorized under section 304(b) of the CWA (33 U.S.C 1314). EPA promulgated regulatory standards for various industrial categories based on the performance of treatment and control technologies. Coal mining industry requirements are found at 30 CFR part 434, Coal Mining Point Source Category BPT, BAT, BCT Limitations and New Source Performance Standards.

The EPA standards at part 434 establish limitations on the concentration or quality of pollutants or pollutant properties ( i.e., total suspended solids, iron, manganese, and settleable solids), which may be discharged to surface waters as a result of coal mining activity. The parameters and limitations for pollutants differ depending on factors such as the type of site, type of control technology involved, type of drainage, mining status, and weather conditions. These parameters and limitations can be found at subparts B., Coal Preparation Plants and Coal Preparation Associated Area, C., Acid or Ferruginous Mine Drainage, D., Alkaline Mine Drainage, E., Post-Mining Areas, and F., Miscellaneous Provisions.

Regarding limitations on post-mining areas, we note that in response to a request for clarification from Pennsylvania, EPA concluded in a January 28, 1992, Memorandum that the requirements of 40 CFR part 434 did not expressly apply to groundwater point source seeps discharged to navigable waters from a post-mining reclamation area (Administrative Record No. 853.16). EPA later stated that its position in 1992 does not reflect current EPA regulatory analysis. EPA stated that seepage at a reclamation site (surface mine in stage 2 reclamation as provided for in 30 CFR 800.40(c)(2)) does (emphasis added) include water that drains through waste rock, overburden, etc., rather than flows over the surface, and these seepages are subject to the effluent limit guidelines in 434 Subchapter E, Post-Mining Areas, which are a subject of this notice. See the EPA Concurrence and Comments section later in this notice.

For sources discharging directly to surface waters, permitting authorities must incorporate the EPA-promulgated limitations and standards into discharge permits, where applicable, as required by 40 CFR part 122, EPA Administered Permit Programs: The National Pollutant Discharge Elimination System. Effluent limitations serve as the primary mechanism in NPDES permits for controlling discharges of pollutants to receiving waters. When developing effluent limitations for an NPDES permit, a permit writer must consider limits based on both the treatment and control technologies available to control the pollutants ( i.e., technology-based effluent limitations and standards (TBELS), which are addressed at 40 CFR part 434, and limits that are based on risks or impacts upon the receiving water ( i.e., water quality-based effluent limitations and standards (WQBELS)), which are addressed at 40 CFR part 131, Water Quality Standards. WQBELS are included in NPDES permits if TBELS alone are not sufficient to ensure compliance with applicable water quality standards.

A State may assume the role of permitting authority if it has been authorized to administer the NPDES permit program under the authority of sections 3 18, 402, and 405(a) (National Pollutant Discharge Elimination System—NPDES) of the CWA. The Federal regulations at 40 CFR part 123, State Program Requirements, provide the procedures EPA follows for approving, amending, and withdrawing a State program that has requested or assumed responsibility for administering the NPDES program under the CWA. Pennsylvania assumed responsibility for the administration of the NPDES program and its program regulations are found at 25 Pennsylvania Code (Pa Code) Chapter 92a, National Pollutant Discharge Elimination System—Permitting, Monitoring and Compliance. This regulation prescribes requirements necessary to implement the program under the CWA. Pennsylvania's NPDES regulations at 25 Pa Code § 92a.12, Treatment Requirements, at subsection (a)(l) refer to the ELGS established under chapters 87-90 of 25 Pa Code, which pertain to the ELGS for coal mining and are a subject of this notice. Pennsylvania's water resource regulations, which include regulations involving water quality standards and implementation, are found at chapters 91-111 of 25 Pa Code.

By letter dated October 1, 2010, Pennsylvania submitted an amendment to its program under SMCRA (30 U.S.C. 1201 et seq. ) (Administrative Record No. PA 854.03). We announced receipt of the proposed amendment in the March 25, 2011, Federal Register (76 FR 16714), (Administrative Record No. PA 854.08). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the amendment. We did not hold a public hearing or meeting because none was requested. The public comment period ended on April 25, 2011. We received comments from a consulting company and an environmental organization, which are addressed in the Public Comments section found later in this Federal Register notice.

The amendment submitted to us involves two types of changes: (1) The elimination of manganese from the list of parameters tested for mining discharges when certain weather conditions exist, and (2) the addition of provisions that address the treatment of post-mining pollutional discharges on regulated coal mining sites, including provisions involving passive treatment technologies and alternate effluent limitations. Part of the amendment involves changes initiated by the State (elimination of manganese) and the other part involves changes submitted as a result of a request from us (passive treatment systems and ELGS). These changes are described below. We note that the term “post-mining pollutional discharges” is sometimes spelled in the Federal and State regulations with a hyphen and sometimes without a hyphen. In this document the use of “post-mining pollutional discharges” with a hyphen will represent both alternative spellings.

Pennsylvania submitted this change at its own initiative. It involves regulatory changes to the mining regulations at 25 Pa. Code subsections 87.102(a), 88.92(a), 88.187(a), 88.292(a), 89.52(c), and 90.102(a) related to ELGS. These subsections are nearly identical but are found at different parts of the Pennsylvania program as follows: Surface coal mining at 87.102(a); anthracite coal mining activities at sections 88.92(a), 88.187(a), and 88.292(a); underground mining activities at 89.52(c); and coal refuse disposal areas at 90.102(a). These subsections address effluent criteria for discharges occurring or having occurred due to surface and anthracite coal mining activities, underground coal mining, and coal refuse disposal operations.

Pennsylvania's OSMRE-approved regulatory program incorporates all of the ELGS prescribed by EPA for coal mining point sources and incorporates them at 25 Pa Code chapters 87-91. Pennsylvania's program includes three groups of effluent criteria at these subsections and they are labeled Groups A, B, and C. Group A ELGS apply for pit water, during dry conditions for surface runoff from active surface mining areas, areas where stage 2 standards have been achieved (revegetation has been established), drainage from coal refuse disposal piles, drainage from underground mine workings, and all other discharges; Groups B and C ELGS apply to all of the above discharges except pit water and underground mine workings. Group B ELGS apply when there is an increase in the volume of a discharge caused by precipitation within any 24-hour period less than or equal to a 10-year, 24-hour precipitation event; and Group C ELGS apply to a mining discharge when there is a greater than 10-year, 24-hour precipitation event.

All three groups include discharge limitations that require alkalinity to be greater than acidity and the pH to be greater than 6 but less than 9. The groups differ, however, regarding other parameters. Group A ELGS include iron, manganese, and suspended solids. Group B ELGS include iron, manganese, and settleable solids. Group C does not include any other limitations.

Pennsylvania seeks to revise its regulations by removing manganese from Group B effluent criteria to be consistent with EPA standards at 40 CFR 434.63, Effluent limitations for precipitation events, which provide alternate ELGS for discharges during precipitation events. These alternate ELGS are less stringent than those prescribed for discharges during dry conditions and vary depending on factors such as the mining status (active or post-mining), volume of precipitation, type of discharge (alkaline or acid or ferruginous mine drainage), and the type of mine operation or facility that is involved. Because Pennsylvania's regulatory program includes a manganese limitation for discharges during precipitation events at Group B and EPA does not include manganese as a limitation in its regulations at 40 CFR 434.63, Pennsylvania seeks to remove manganese from the list of pollutant limitations required for these discharges.

Pennsylvania states its regulations at 25 Pa Code, Chapter 87, Surface Mining of Coal, Chapter 88, Anthracite Coal, Chapter 89, Underground Mining of Coal and Coal Preparation Facilities, and Chapter 90, Coal Refuse Disposal, are consistent with EPA regulations at 40 CFR part 434. Pennsylvania states that its revised regulations are consistent with EPA's regulations under the CWA and that because SMCRA and its implementing regulations require compliance with the CWA, the revised regulations should be approved.

Pennsylvania submitted additional program provisions in response to a letter from us on July 7, 2010. In the letter, we notified the State that we became aware that the provisions in 25 Pa. Code § 87.102(e), Hydrologic balance: Effluent standards, Post-mining pollutional discharges, while enacted and codified by the State in 1997, had not been submitted to us for approval (Administrative Record No. PA 854.24). In response, Pennsylvania submitted statutory and regulatory changes that address the treatment of post-mining pollutional discharges.

Pennsylvania seeks to revise its program by adding the statutory provisions at section 4.26 (52 P.S. § 1396.4b(j)) of Pennsylvania's Surface Mining Conservation and Reclamation Act (PA SMCRA), 52 P.S. §§ 1396.1-1396.19. Pennsylvania also seeks to revise its program by adding the implementing regulatory provisions at 25 Pa. Code §§ 87.102(e), 88.92(e), 88.187(e), 88.292(e), and 90.102(e) as adopted by Pennsylvania's Environmental Quality Board (EQB) on November 19, 1997. The provisions are nearly identical, but are found at different parts of the Pennsylvania program as follows: Surface coal mining at 25 Pa. Code § 87.102(e); anthracite coal mining activities at 25 Pa. Code §§ 88.92(e), 88.187(e), and 88.292(e); and coal refuse disposal areas at 25 Pa. Code § 90.102(e).

In summary, these new provisions define a post-mining pollutional discharge and a passive treatment system; establish eligibility criteria for using passive treatment systems to address post-mining pollutional discharges; provide alternate ELGS for qualifying discharges; and prescribe passive treatment design requirements. The changes are described below.

a. Statutory Changes: Pennsylvania seeks to add section 4.2(j) of PA SMCRA, which provides for the following:

(1) Authorizes the EQB to revise existing regulations and establish TBELS for classes or categories of post-mining pollutional discharges from surface mining activities that have achieved stage 2 reclamation standards and that the Pennsylvania Department of Environmental Protection determines can be adequately treated using passive treatment systems;

(2) establishes two classes/categories of post-mining pollutional discharges deemed suitable for using passive treatment systems as identified below:

(a) Discharges that have a pH which is always greater than 6.0 and an alkalinity which always exceeds the acidity; or

(b) discharges that have an acidity which is always less than 100 mg/L, an iron content which is always less than 10 mg/L, a manganese content which is always less than 18 mg/L, and a flow rate which is always less than three gallons per minute (gpm);

(3) requires regulations to contain TBELS established using best professional judgment (BPJ);

(4) requires post-mining pollutional discharges to comply with 25 Pa. Code Chapters 92 and 93, relating to NPDES and water quality standards, respectively; and

(5) allows a person to petition the EQB for rulemaking under this subsection.

b. Regulatory Changes: Pennsylvania seeks to add regulatory provisions at 25 Pa Code that address the treatment of post-mining pollutional discharges. These new provisions include: Definitions; eligibility criteria for determining discharges that are suitable for the use of passive treatment technologies; alternative ELGS; and passive treatment design requirements. We have summarized these provisions below.

(1) Definitions: Pennsylvania seeks to revise section 86.1 by adding two definitions (passive treatment system and post-mining pollutional discharge) to the list of definitions pertaining to the coal mining program.

(a) Passive Treatment: Pennsylvania defines passive treatment as a mine drainage treatment system that does not require routine operational control or maintenance. It includes biological or chemical treatment systems, alone or in combinations, as approved by the State, such as artificially constructed wetlands, cascade aerators, anoxic drains, or sedimentation basins.

(b) Post-mining Pollutional Discharge: Pennsylvania defines a post-mining pollutional discharge as a discharge of mine drainage emanating from or hydrologically connected to the permit area, which may remain after coal mining activities have been completed and which does not comply with the applicable effluent limit requirements of 25 Pa. Code §§ 87.102, 88.92, 88.187, 88.292, 89.52, or 90.12. The term includes “ minimal-impact post-mining pollutional discharges” as defined in section 3 of PA SMCRA (52 P.S. § 1396.3).

(2) Treatment of Post-mining Pollutional Discharges: Pennsylvania seeks to add subsections 87.102(e), 88.92(e), 88.187(e), 88.292(e), and 90.102(e), which address the treatment of post-mining pollutional discharges. We have summarized these provisions below.

(a) Effluent Limitation Guidelines and Standards: The provisions at subsections (e)(l) and (e)(2) require the discharger to provide treatment of post-mining pollutional discharges to meet Group A standards, the most stringent standards, and take any measures that are available and necessary to abate the discharge, including modifying the operation and reclamation plan. If, after this interim period, the discharge still exists, the operator must arrange for sound future treatment that will achieve compliance with Group A standards, which involve iron, alkalinity, suspended solids, and manganese. However, if the discharge can be adequately treated using a passive treatment system, alternate standards involving iron and alkalinity apply.

(b) Eligibility Criteria of Suitable Discharges for Passive Treatment Systems: The provisions at subsections (e)(2) establish classes or categories of post-mining pollutional discharges deemed suitable for using passive treatment systems. They include, but aren't limited to:

(i) Where pH is always greater than 6.0 and alkalinity always exceeds acidity;

(ii) where acidity is always less than 100 mg/L, iron is always less than 10 mg/L, manganese is always less than 18 mg/l, and flow is always less than 3 gpm; and

(iii) where net acidity is always less than 300 mg/L. Net acidity is calculated by subtracting the alkalinity of the discharge from its acidity.

(c) Alternate ELGS: The provisions at subsections (e)(3) prescribe alternate ELGS if the untreated discharge can be adequately treated using a passive treatment system. The following effluent limitations apply in lieu of those in Group A:

(i) Reduce the iron concentration by at least 90 percent or by the percentage necessary to achieve Group A effluent requirements, whichever percentage is less; and

(ii) produce an effluent alkalinity which exceeds effluent acidity.

(d) Passive Treatment System Design: The provisions at subsections (e)(4) and (e)(5) require that passive treatment systems be designed to prevent leakage of mine drainage into the groundwater system; prevent groundwater and surface water runoff Lin-impacted by mining from entering the treatment system; hydraulically handle the highest average monthly flow-rate which occurs during a 12-month period; have inlet and outlet structures which allow for flow measurements and water sampling; prevent to the maximum extent possible physical damage and associated loss of effectiveness due to wildlife and vandalism; and be of a capacity so that they will operate effectively and achieve the required effluent quality for 15 to 25 years before needing to be replaced. The provisions require the system to be designed by and constructed under the supervision of a qualified professional knowledgeable in the subject of passive treatment of mine drainage.

Pennsylvania contends that these changes are consistent with EPA's 1992 guidance memorandum (see discussion below). Specifically, Pennsylvania references the 1992 EPA memorandum relating to the applicability of 40 CFR part 434 to post-mining discharges from surface mines and points out that the memorandum confirmed that certain post-mining discharges are not addressed in 40 CFR 434. Pennsylvania states its provisions are consistent with the memorandum because the memorandum provides that in the absence of established ELGS, technology-based limits are developed on a best professional judgment (BPJ) basis.

In addition to the statutory provisions and revised regulations submitted for approval, Pennsylvania also provided an Analysis Document to assist with our review. It includes citations of OSMRE regulations at 30 CFR 816.42 and 817.42 ( Hydrologic balance: Water quality standards and effluent limitations, for surface mining and underground mining respectively) and EPA regulations at 40 CFR part 434, Coal Mining Point Source Category BPT, BAT, BCT Limitations and New Source Performance Standards. It also references the following documents:

The EPA, in response to a request for clarification from Pennsylvania, concluded in this memorandum that the requirements of 40 CFR part 434 do not expressly apply to groundwater point source seeps discharged to navigable waters from a post-mining reclamation area. The EPA suggested that Pennsylvania establish TBELS for post-mining groundwater seeps from reclamation areas using BPJ, provided sufficient facts support control of the discharge by an NPDES permit and provided it is appropriate to impose TBELS, rather than WQBELS.

This report is used to support Pennsylvania's reliance on BPJ, in the absence of EPA-prescribed TBELS, to establish the treatment requirements for post-mining pollutional discharges.

As required by Federal regulations at 30 CFR 732.17(h)(11)(ii), we are required to obtain written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the CWA (33 U.S.C. 1251 et seq. ) or the Clean Air Act (CAA) (42 U.S.C. 7401 et seq. ). The revision that Pennsylvania proposes to make in this amendment pertains to water quality standards. Therefore, we asked EPA to comment and provide concurrence regarding the amendment.

During the amendment review process, we communicated with EPA and Pennsylvania on several occasions. The information obtained through the interaction between us, EPA, and Pennsylvania is germane to our findings. We summarize the communications in the EPA Concurrence and Comments section found later in this Federal Register document. Our findings should be read along with that section in order to fully understand the rationale that led to our decision.

The following are the findings we made concerning the amendment under SMCRA at 30 U.S.C. 1253 and the Federal regulations at 30 CFR 732.15, Criteria for approval or disapproval of state programs, and 30 CFR 732.17, State program amendments. We are approving, with one exception, the amendment as described below.

Federal SMCRA at subsections 515(b)(10) and 516(b)(9) (30 U.S.C.1265(b)10) and 30 U.S.C. 1266(b)(9)) and the Federal regulations at 30 CFR 816.41 and 817.41, Hydrologic-balance protection, for surface mining and underground mining respectively, require that surface coal mining and reclamation operations be conducted to minimize disturbance to the prevailing hydrologic balance and to the quantity and quality of water in surface water and groundwater systems, both during and after mining and during reclamation. In addition, subsections 510(b)(2) and (3) of SMCRA (30 U.S.C. 1260(b)(2) and (3)) and 30 CFR 773.15, Written findings for permit application approval, subsections (b) and (e) prohibit the regulatory authority from approving a permit application unless the applicant has demonstrated that reclamation can be accomplished and that the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area.

The regulations at 30 CFR 816.41 and 817.41 require that, among other things, mining and reclamation practices that minimize water pollution and changes in flow must be used in preference to water treatment. Consistent with this approach, subsection (b)(l) and (d)(l) of 816.41 and 817.41 require that surface water and ground water quality must be protected by handling earth materials and runoff in a manner that minimizes the formation of acid and toxic forming materials. However, when water treatment is unavoidable, sections 816.42 and 817.42 specify that discharges must be made in compliance with applicable State and Federal water quality laws, regulations, and effluent limitations. These effluent limits and water quality standards include all applicable State and Federal water quality laws and regulations, including the ELGS for coal mining as promulgated by EPA and set forth in 40 CFR part 434.

The EPA regulations at section 40 CFR 434.63 provide alternate limitations for discharges during precipitation events and they apply to discharges involving surface mining, coal prep plants, coal refuse disposal areas, and reclamation areas. This section does not apply to discharges from underground workings of an underground mine, unless comingled with other eligible discharges. We note that section 434.63 does not provide a manganese limitation for any precipitation event.

There are no specific OSMRE regulations addressing effluent limitations; however, we note that OSMRE regulations included ELGS for surface coal mining and reclamation operations at one time. On October 22, 1982, these standards were removed and replaced with a reference in 30 CFR 816.42 and 30 CFR 817.42 to EPA's effluent limitation standards. See 47 FR 47216, October 22, 1982, and 48 FR 44006, September 26, 1983. This was done to eliminate unnecessary duplication and confusion between EPA's and OSMRE's standards and establish EPA as the responsible Federal agency for developing ELGS as they relate to coal mining activities. We note that Pennsylvania did not submit the proposed ELGS changes to EPA for approval. Because Pennsylvania's regulatory program incorporates, rather than references, ELGS in its coal mining regulations at 25 Pa Code Chapters 87-91, we received this amendment for processing. We sought EPA's concurrence on the changes during the review process. ( See the EPA Concurrence and Comments section later in this notice.)

OSMRE Finding: EPA's regulations at 40 CFR 434.63 do not require a manganese limitation for any precipitation event. Pennsylvania's elimination of manganese from Group B ELGS is consistent with EPA's requirements. For this reason and given EPA's concurrence, we find that the proposed revisions at 25 Pa. Code §§ 87.102(a), 88.92(a), 88.187(a), 88.292(a) 89.52(c), and 90.102(a) are consistent with the Federal regulations at 30 CFR 816.42 and 30 CFR 817.42, which require compliance with EPA effluent standards. Therefore, we are approving them.

There are no provisions or comparable definitions included in Federal SMCRA or OSMRE's regulations that address the treatment of post-mining pollutional discharges or the use of passive treatment systems. However, mechanisms to address unexpected post-mining pollutional discharges are necessary because it is beyond dispute that, despite best management practices, post-mining pollutional discharges may occur. Varying methods of treatment are employed to treat these unexpected discharges, including passive treatment systems. Passive treatment systems require ongoing operation and maintenance activity, but less frequent monitoring and continuous management than active treatment systems. Our policy directive, OSMRE Directive TSR-IO, Use of Wetland Treatment Systems for Coal Mine Drainage, explains our position regarding the use and benefits of wetland treatment systems, a form of passive treatment, for coal mine drainage. In TSR-10, we explain that because neither SMCRA nor its implementing regulations place limitations on the methodology used to treat acid or ferruginous discharge, we will neither promote nor discourage the use of constructed wetlands for treatment of mine drainage. This includes mine drainage that may or may not be net acidic.

Pennsylvania's statutory provisions of section 4.2(j) of PA SMCRA, authorize Pennsylvania to: Revise existing regulations and establish TBELS for classes or categories of post-mining pollutional discharges that have achieved stage 2 reclamation standards and that Pennsylvania determines can be adequately treated using passive treatment systems; prescribe two categories of discharges deemed suitable for such treatment; require regulations to contain TBELS established using BPJ; require post-mining pollutional discharges to comply with NPDES and water quality standards; and allow a person to petition the EQB for rulemaking.

We are approving the statutory language along with the implementing regulations, with one exception, for the reasons described below.

There are no comparable definitions of post-mining pollutional discharge or passive treatment system in Federal SMCRA or its implementing regulations. The definition of minimal-impact post-mining discharge, which is incorporated into Pennsylvania's definition of post-mining pollutional discharge at PASMCRA (52 P.S. § 1396.3), has not been approved as part of the Pennsylvania program.

We previously reviewed statutory and regulatory changes effected by Act 173, which included changes to 52 P.S. 1396.3, Definitions. We addressed the definition of minimal-impact post-mining discharge in a May 13, 2005, Federal Register notice (70 FR 25474) (Administrative Record No. 853.53). In that notice, which documented our findings pertaining to Pennsylvania Program Amendment No. PA-124, we summarized the statutory provisions of sections 4(g.1), (g.2), and (g.3) of PA SMCRA (52 P.S. §§ 1396.4(g.1), (g.2), and (g.3)). These sections pertain to bond release at sites with post-mining pollutional discharges, and bond release at sites with minimal-impact post-mining discharges.

In a letter dated December 23, 2003, Pennsylvania requested that we remove the statutory provisions of 1396.4(g.1), (g.2), and (g.3) from the PA-124 program amendment submission because its statutory definition of minimal-impact post-mining discharge at 52 P.S. § 1396.3 and the regulations for post-mining pollutional discharges were not included in the proposed program amendment (Administrative Record No. 853.23). We granted that request and did not take any action with respect to proposed sections 4(g.1), (g.2), and (g.3).

OSMRE Finding: Based on Pennsylvania's earlier request that we not take any action with respect to proposed statutory provisions of 52 P.S. §§ 1396.4(g.1), (g.2), and (g.3), we never approved the definition of minimal-impact post-mining discharge. For the reasons mentioned above and because it is not inconsistent with SMCRA and the implementing Federal regulations, we are approving the regulatory definition of post-mining pollutional discharge at 25 Pa. Code § 86.1, except for the reference to minimal impact post-mining discharges. We are deferring our decision on the inclusion of minimal impact post-mining discharges in the definition of post-mining pollutional discharge until such time as the State submits the definition of minimal-impact post-mining discharge to us as a proposed program amendment. We are also approving the regulatory definition of passive treatment system at 25 Pa. Code § 86.1 because it is not inconsistent with SMCRA and the implementing Federal regulations.

As stated above, there are no direct Federal counterparts to these amendments, either in SMCRA or in its implementing regulations. However, neither SMCRA nor its regulations prohibit the use of passive treatment on bonded sites with post-mining pollutional discharges. Moreover, SMCRA and its regulations are devoid of any threshold criteria authorizing the use of passive treatment systems on these sites.

We note that while the statutory provisions at 4.2(j) of PA SMCRA identify two categories of discharges suitable for passive treatment, the regulatory provisions identify three categories as noted under the description of the regulatory changes at 25 Pa. Code §§ 87.102(e), 88.92(e), 88.187(e), 88.292(e), and 90.102(e) above. The third category, which is included in the regulations, requires net acidity to always be less than 300mg/L. In its program amendment submission letter, Pennsylvania states that its 1994 BPJ analysis supports the addition of the third category. In addition, the regulations allow Pennsylvania to extend the passive treatment authority to other discharges it deems appropriate.

We asked Pennsylvania about the discrepancy between the statutory and regulatory provisions. In an email correspondence to us from Pennsylvania dated November 10, 2014, Pennsylvania stated that all of the regulations included in this amendment were adopted under the rulemaking authority of section 4.2(a) of the PA SMCRA (52 P. S. § 1396.4b(a)); section 5(b) of The Clean Streams Law (CSL) (35 P. S. § 691.5(b)); section 3.2(a) of the Coal Refuse Disposal Control Act (CRDCA) (52 P. S. § 30.53b(a)); and section 1920-A of the Administrative Code of 1929 (71 P. S. §§ 510-20) which authorizes the EQB to adopt regulations necessary for the Department to perform its work. (Administrative Record No. PA 854.23).

OSMRE Finding: There is no prohibition of the use of passive treatment technologies on bonded sites with pollutional discharges, in either SMCRA or its implementing regulations. Pennsylvania's provisions prescribing criteria for post-mining discharges deemed suitable for passive treatment are consistent with the conclusions of its 1994 BPJ analysis. With regard to the eligibility criteria and the discrepancy between the two statutory provisions and the three regulatory provisions, we find that Pennsylvania has demonstrated it has the general statutory authority to augment its regulations, and that it properly exercised that authority. We find the statutory and regulatory provisions, will result in construction of treatment systems for post-mining pollutional discharges, which minimize disturbance of the hydrologic balance within the permit and adjacent areas, and prevent material damage to the hydrologic balance outside the permit area as required by 30 CFR 816.41(a). For the reasons mentioned above, we find the statutory provisions at section 4.2(j) of PA SMCRA and the regulatory provisions at subsection (e)(l) and (e)(2) of sections 87.102, 88.92, 88.187, 88.292, and 90.102 are not inconsistent with SMCRA and its implementing regulations, and, therefore, we are approving them.

Pennsylvania's provisions at subsections (e)(3) of sections 87.102, 88.92, 88.187, 88.292, and 90.102 provide for alternate ELGS that apply to post-mining pollutional discharges when passive treatment systems are authorized and Group A standards cannot be achieved. These alternate provisions do not involve limitations for manganese and suspended solids as required under Group A standards. When authorized, these ELGS apply to these post-mining pollutional discharges in addition to the ELGS prescribed by the EPA. EPA regulations at 40 CFR 434.52, Effluent limitations guidelines representing the degree of effluent reduction attainable by the application of the best practicable control, provide an effluent requirement for discharges emanating from post-mining areas (reclamation areas until the performance bond issued to the facility by the appropriate SMCRA authority has been released). The regulation at subsection (a) of this section requires that the discharge have no more than 0.5 ml/L of settleable solids and a pH of between 6 and 9. We noted that Pennsylvania does not have ELGS involving settleable solids or pH for post-mining pollutional discharges from surface reclamation areas in its program submission.

When we asked EPA about this omission, EPA responded that all discharge limits must be consistent with the CWA regardless of SMCRA or other applicable regulations. This means that, in accordance with section 301 of the CWA (33 U.S.C. 1311) and 40 CFR 122.44, Establishing limitations, standards, and other permit conditions (applicable to State NPDES programs), the more stringent of TBELS or WQBELS must be used to control point source discharges. Regardless of whether a TBEL or WQBEL is applied, any discharge must still meet all water quality standards.

EPA advised that any NPDES permit issued by PADEP for post-mining pollutional discharges must still address pH and settleable solids limits. EPA advised that NPDES permits require pH discharges at levels between 6.0 and 9.0 unless a variance is granted pursuant to 40 CFR 434.62. This variance allows the pH level to exceed 9.0 to a small extent, where the application of neutralization and sedimentation technology that slightly elevates the pH also results in the ability to comply with the manganese limitations. Similarly, settleable solids must meet applicable TBELS or WQBELS, even if there is no specific limit identified in 25 Pa. Code Chapters 87, 88, 89, and 90. The NPDES settleable solids permit limit is a maximum being implemented of 0.5 ml/L. Therefore, we understand that NPDES permits issued for post-mining pollutional discharges subject to subsections 87.102(e), 88.92(e), 88.187(e), 88.292(e), and 90.102(e) from surface reclamation areas must meet the ELGS of 40 CFR 434.52(a) in addition to requirements of the chapters cited above. Pennsylvania's program requires strict adherence to the applicable ELGS contained in 25 Pa. Code §§ 87.102(a), 88.92(a), 88.187(a), 88.292(a), and 90.102(a) until the construction of a passive treatment system is approved, at which time the requirements of subsections (e), which involve alternate limitations, apply.

OSMRE Finding: Pennsylvania's regulations authorizing alternate limitations using passive treatment systems to address post-mining discharges at subsections (e)(3) are consistent with the conclusions of its 1994 BPJ analysis. The EPA has concluded and Pennsylvania has confirmed, that EPA's ELGS involving pH and settleable solids are still required under NPDES permits. In addition to the NPDES program requirements, Pennsylvania is required to meet all Federal and State water quality requirements. Therefore, given that EPA has provided concurrence for the amendment and for the reasons mentioned above, we find that the provisions at subsections (e)(3) of sections 87.102, 88.92, 88.197, 88.292, and 90.102 are not inconsistent with SMCRA and the implementing Federal regulations, and we are approving them.

As mentioned previously, there are no direct Federal counterparts to these amendments, either in SMCRA or in its implementing regulations that address passive treatment system, including design requirements for the construction and performance of such systems. Pennsylvania advises that regulatory design and performance standards at subsections (e)(4) and (e)(5) of 25 Pa. Code §§ 87.102, 88.92, 88.187, 88.292, and 90.102 will help ensure appropriate treatment systems are authorized. Pennsylvania has provided assurances that decisions regarding treatment of post-mining pollutional discharges will be made using current knowledge of passive treatment technology tools for evaluating the use of passive treatment and limitations of passive treatment technologies. Also, permit revision applications to construct passive treatment systems for post-mining pollutional discharges will be subject to the review of qualified agency staff with experience in passive treatment. For the reasons mentioned above, we find the provisions at subsections (e)(4) and (e)(5) of 25 Pa. Code §§ 87.102, 88.92, 88.187, 88.292, and 90.102 are not inconsistent with SMCRA and the implementing Federal regulations, and we are approving them.

In the March 25, 2011, Federal Register notice announcing our receipt of this amendment, we asked for public comments (76 FR 16714). The comment period closed on April 25, 2011. No requests for public meetings or hearings were received. We received comments from a consulting firm (Hedin Environmental) on April 24, 2011 (Administrative Record No. PA 854.11). We also received public comments from one environmental organization, Citizens for Pennsylvania's Future (PennFuture), on two occasions (April 25, 2011, Administrative Record No. PA 854.09, and January 18, 2012, Administrative Record No. PA 854.14). We discuss these comments below.

Hedin Environmental: Hedin Environmental (Hedin), which specializes in the passive treatment of contaminated coal mine drainage, commented that experience and data demonstrates that when passive systems are properly designed, acidity, iron, and aluminum contaminants are reliably decreased to concentrations compliant with the proposed effluent standards. Hedin stated that passive treatment techniques are available for manganese removal; however, this treatment is less reliable.

Hedin further commented that all treatment technologies, including passive treatment technologies, fail when improperly designed. Even though the proposed amendment requires that treatment systems be designed by qualified personnel, Hedin proposes that OSMRE consider strengthening this requirement. Hedin stated that ineffective passive treatment systems have been designed by professional engineers without adequate experience and knowledge of passive technologies and design principles. Hedin opined that the problem is due, in part, to inexperienced engineer's improper use of the OSMRE's AMDTreat software program, a computer program developed to estimate treatment costs for mining discharges. Hedin noted that neither OSMRE nor Pennsylvania has a program that trains professionals in the design of passive treatment systems or provides accreditation for qualified professionals and that this should be corrected.

OSMRE's Response: We agree with the comment that there are no Federal regulations pertaining to the design of passive treatment systems. Likewise, the Federal regulations do not prohibit the use of passive treatment systems on bonded sites with post-mining pollutional discharges. OSMRE concludes that the regulation requiring that the treatment system be designed by and constructed under the supervision of a qualified, professional knowledgeable in the subject of passive treatment of mine drainage is within the discretion of the PADEP. Additionally, if the passive treatment system fails to maintain a discharge within applicable water quality standards or effluent limits, the permittee will be subject to enforcement actions by PADEP and be required to modify the treatment system to ensure that it satisfies the established effluent limits in the applicable NPDES permit.

Pennsylvania has provided assurances that decisions regarding treatment of post-mining pollutional discharges will be made using current knowledge of passive treatment technology tools for evaluating the use of passive treatment and limitations of passive treatment technologies. Also, permit revision applications to construct passive treatment systems for post-mining pollutional discharges will be subject to the review of qualified agency staff with experience in passive treatment. Pennsylvania advises that regulatory design and performance standards will help ensure appropriate treatment systems are authorized. Those standards are discussed in Technical Guidance Directive 563-2112-608, Constructed Wetlands for Mine Drainage Treatment, and Technical Guidance Directive 563-0300-101, Engineering Manual for Mining Operations; Chapter 6, Mine Drainage Treatment Facilities.

We agree with the commenter that an improperly designed passive treatment system substantially increases the likelihood of partial or total system failure. Flawed designs can occur for any number of reasons including insufficient or inaccurate baseline data (flow rates and/or geochemistry), changed flow conditions, construction modifications, constrained site conditions, and poor engineering decisions. However, Pennsylvania regulations have safeguards in place to protect against passive treatment system failures. For example, the Pennsylvania regulation at 25 Pa. Code § 87.117, Hydrologic Balance: Surface water monitoring, requires a permit holder to monitor and accurately measure and record the water quantity and quality of surface water to accurately assess discharges from the permit area and the effect of the discharge on the receiving waters. The monitoring of the flow and chemistry of post-mining pollutional discharges must be sufficient to enable the making of informed decisions regarding the type and scale of treatment to be implemented. The Pennsylvania program requires that surface water be monitored for parameters that relate to the suitability of the surface water for current and approved post-mining land uses and to the objectives for protection of the hydrologic balance. Furthermore, module 8 of the permit application dictates how the baseline surface waters information is to be collected and the frequency.

Moreover, we note that OSMRE's AMDTreat software has been recognized as an industry standard for estimating all types of long-term mine drainage treatment costs. It provides for comparison of treatment costs for multiple systems and facilitates the development of long-term financial forecasting so that practical funding decisions can be made. AMDTreat is just one tool to be used for engineering design by experienced practitioners. Like any engineering tool, AMDTreat can be misapplied or used improperly. To avoid misapplication or improper use, OSMRE provides on-line tutorials for AMDTreat users, makes itself available for user questions, and provides outreach to users through various technical forums. OSMRE also provides training on the use of AMDTreat and on the theory and application of passive treatment technologies to regulatory authority personnel through its National Technical Training and Technical Innovations and Professional Services programs (TIPS).

We disagree with Hedin's assertion that OSMRE does not train professionals in the design of passive treatment systems. Through its TIPS training program, OSMRE offers a course for State and Tribal employees entitled “Passive Treatment: Theory and Application Workshop.” This course provides information and exercises that are highly interactive and can be used to evaluate the characteristics of coal mine drainage and guide the selection and application of various passive treatment technologies designed to mitigate the impacts of discharges. For individuals or firms in the private sector, numerous educational programs on passive water treatment design are available from higher-education institutions or private entities. While we acknowledge the commenter's suggestion related to establishing an accreditation for the training of professionals in the design of passive treatment systems, neither SMCRA nor the Federal regulations currently provide for such a requirement. We conclude that the State program has the discretion to determine the design of any passive treatment system, which includes the selection of a qualified professional engineer to design and implement passive treatment systems.

PennFuture: PennFuture's comments were limited to the provisions relating to the establishment of TBELs for post-mining pollutional discharges using BPJ. PennFuture provided the following two comments for our consideration:

a. EPA Approval: PennFuture stated that to avoid creating a conflict, OSMRE should not approve the provisions at issue as an amendment to the State regulatory program unless EPA first (or simultaneously) approves them as a revision to Pennsylvania's NPDES program. PennFuture cited EPA regulations governing state NPDES permitting program approvals and contends that EPA must first approve this change because it involves NPDES requirements; therefore, OSMRE, approval should only take place after this has occurred. PennFuture states that when it comes to approving regulations that implement BPJ, EPA should provide approval first because BPJ determinations are required by and governed by the CWA and EPA's NPDES program regulations. As such, PennFuture states Pennsylvania should not implement its post-mining pollutional discharge regulations until they have been approved by EPA as a revision to its approved NPDES program under the CWA. PennFuture contends that unless and until EPA grants approval of Pennsylvania's proposed, categorical BPJ determinations through a formal approval of them as part of the Pennsylvania's NPDES program, OSMRE should not confuse the issue by approving them as part of Pennsylvania's approved regulatory program under SMCRA.

OSMRE's Response: In its May 20, 2014, response to us, EPA noted that there had been numerous amendments to Pennsylvania's water quality chapters in Pa. Code Title 25, Environmental Protection, many of which would require EPA approval to become effective under the CWA. EPA, nevertheless, gave OSMRE its concurrence on August 20, 2013, in accordance with 30 CFR 732.17(h)(11)(ii). The question of whether the State's effluent limitations are effective under the CWA must be addressed to, and answered by, the EPA.

Regarding approval of the 1994 BPJ analysis, EPA's clarification of its 1992 Memorandum essentially moots this point. EPA stated that all post-mining discharges from a permitted surface mine reclamation area must have an NPDES permit and meet the effluent limits of 40 CFR 434.52(a), which require limitations involving pH and settleable solids for permitted reclamation areas. Pennsylvania has provided assurances that its implementing regulations will protect the hydrologic balance as required by 30 CFR 816.41 (a) and satisfy all the requirements of State and Federal water quality laws and regulations and comply with ELGS promulgated by EPA under 40 CFR part 434.

b. Categorical Treatment Requirements and BPJ: PennFuture states “[b]linding, categorical treatment requirements of indefinite duration based on an analysis performed nearly two decades ago conflict with the [F]ederal and [S]tate water quality regulations governing BPJ.” PennFuture contends that, because EPA does not apply ELGS to post-mining pollutional discharges from surface mines, Federal and State water quality laws and regulations governing BPJ can be complied with by Pennsylvania coal operators if limits are established on a permit-by-permit basis, rather than by standardized, categorical treatment requirements. The regulations proposed by Pennsylvania fail to meet this requirement, according to PennFuture, because they “conflict with the four fundamental attributes of BPJ determinations under EPA's NPDES regulations.” These attributes, PennFuture states are: (1) BPJ is case-by-case, not categorical; (2) BPJ is flexible, not fixed and binding; (3) BPJ determinations are updated regularly, and not of indefinite duration; and (4), “BPJ is up to the minute, not stuck in the 1990s.”

OSMRE's Response: We disagree with the comment. An underlying assumption upon which all of PennFuture's arguments are based is that EPA has no ELGS that apply to post-mining pollutional discharges from surface mines. That was the case when EPA's 1992 Memorandum was released, but it is not the case now. EPA has since stated that mine drainage includes “any drainage and any water pumped or siphoned, from an active mining or a post-mining area.” (emphasis added) (Administrative Record No. 854.17, citing 40 CFR 434.11 (definition of “ mine drainage.” )). The specific ELGS applicable to post-mining areas may be found at the CWA regulation, 40 CFR 434.52. This provision establishes the ELGS for discharges from reclamation areas until the performance bond has been released. Because the effluent limits of 40 CFR 434.52 apply to post-mining pollutional discharges, use of the 1994 BPJ is no longer applicable except as a basis for the Pennsylvania Legislature's direction to allow passive treatment for a certain type of post-mining discharge. PADEP has committed to following the ELGS of 40 CFR 434.52 for post-mining discharges through the proposed amendments to its regulations and NPDES permits for the treated discharges.

The CWA regulations, at 40 CFR 125, Criteria and Standards for the National Pollutant Discharge Elimination System, establish the standards and criteria for the imposition of technology-based treatment systems. These requirements represent the minimum level of control that must be imposed on NPDES permits. It is only in the absence of such ELGS that BPJ-based, permit-specific limits may be imposed. 40 CFR 125.3(c)(2). Because ELGS are in place for post-mining pollutional discharges from surface mines, BPJ determinations are not required. However, Pennsylvania may promulgate permit-specific, BPJ-based discharge limitations, so long as they supplement, rather than supplant, the ELGS promulgated by the EPA. The statutory portion of this program amendment authorizes the PADEP to do precisely that. 52. P.S. § 1396.4b(j). Post-mining pollutional discharges that qualify for passive treatment must comply with the applicable Federal ELGS for post-mining discharges at 40 CFR 434.52(a), and with the additional requirements imposed by 25 Pa. Code § 87.102(e)(3), and with applicable water quality standards, where those standards are more stringent than the Federal ELGS.

Finally, as noted above in response to another comment, Pennsylvania has provided assurances that decisions regarding treatment of post-mining pollutional discharges will be made using current knowledge of passive treatment technology tools for evaluating the use of passive treatment, and limitations of passive treatment technologies. Also, permit applications to construct passive treatment systems for post-mining pollutional discharges will be subject to the review of qualified agency staff with experience in passive treatment. Pennsylvania advises that regulatory design and performance standards will help ensure appropriate treatment systems are authorized and covered by bond or other financial assurance.

On October 15, 2010, under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Pennsylvania program (Administrative Record No. PA 854.04). The summary of the responses are described below.

The Mine Safety and Health Administration (MSHA), District 1, in a letter dated November 9, 2010, responded that it does not have any comments or concerns with this request (Administrative Record No. PA 854.05).

The U.S. Fish and Wildlife Service (USFWS), in a letter dated April 27, 2011, provided comments regarding the proposed amendment (Administrative Record No. PA 854.10). Its comments were limited to the establishment of limitations addressing manganese in post-mining pollutional discharges. The USFWS noted that technology based treatment requirements using BPJ are prescribed when EPA ELGS do not exist. The USFWS provided comments involving manganese and the effects on fish and wildlife resources.

The USFWS stated that tolerance limits for fish and macroinvertebrate populations reported in the literature vary widely for manganese and are dependent on the individual test organism. According to the USFWS, less information was available, at least as of 2011, on the effects of elevated manganese concentrations on aquatic life than the effects of other metals associated with acid mine drainage, such as iron and aluminum. Research has found correlations between dissolved metals that are at or near toxic levels for fish and invertebrates and the associated levels of these metals in tissues of fish and invertebrates. These levels are shown to have impacts on populations of trout and invertebrates. The USFWS stated that, based on the limited literature available at that time, manganese toxicity appears to have the potential to negatively impact the aquatic life in receiving streams of discharges that would fall under this amendment.

USFWS questioned whether factors such as maintaining the biological integrity of the receiving stream have been considered on these sites where Pennsylvania is using BPJ, which, according to the USFWS, must be used when setting a limit for manganese because manganese is a non-priority pollutant under section 304(a) of the C WA, (33 U.S.C. 1314), and has no ELGS in fresh water.

OSMRE's Response: We forwarded the question about the biological integrity of the stream from manganese discharges to EPA by letter dated January 20, 2014 (see summary of the letter under the EPA Concurrence and Comments section below). EPA responded by letter dated May 20, 2014 (discussed in the section that follows). The EPA response stated that under 40 CFR 122.44(d)(1)(ii), Whole Effluent Toxicity (WET) testing can and should be used to ensure discharges are not toxic and dangerous to aquatic life. EPA also noted 25 Pa. Code § 93.6, General Water Quality Criteria, which states in part, “[w]ater may not contain substances attributable to point or nonpoint source discharges in concentration or amounts sufficient to be inimical or harmful to the water uses to be protected or to human, animal, plant or aquatic life.” As such, this regulation requires protection of the biological integrity of receiving streams. EPA further advised that it is in discussions with Pennsylvania about the need to include WET testing requirements in mining NPDES permits. However, Pennsylvania does not use WET testing on mine permits. Instead, at the approval of the EPA, Pennsylvania uses Osmotic Pressure to assess impacts of mine discharges on receiving streams.

Further, by letter of July 2, 2014 (discussed in the section that follows), EPA clarified that all Pennsylvania streams are designated potable water supply (PWS) and that, pursuant to 25 Pa. Code § 96.3(c), manganese is a PWS standard and subject to compliance with in-stream water quality criteria of a maximum of 1 mg/L, to be measured at the point of discharge. Although there is no manganese effluent limit for post-mining discharges from surface mines under 40 CFR 434.52, Pennsylvania regulations at 25 Pa. Code § 96.3, Water quality protection requirements, and, by reference, 25 Pa. Code § 93.7(a), Specific water quality criteria, are governing. PADEP has committed to requiring a post-mining pollutional discharge to be treated sufficiently by the discharger to meet the more stringent of the applicable technology-based effluent limits or the water quality standards in Chapters 91-96, including the iron and manganese criteria for aquatic life and potable water supply use protection in Chapter 93 through its coal mining regulatory program. Because EPA has classified all streams in Pennsylvania as PWS, thus subject to the 1 mg/L manganese standard, we conclude that compliance with these standards will meet the requirements of SMCRA and the CWA, regarding protection of the biological integrity of streams from manganese effluent from surface mining post-mining discharges. Based on the fact that Pennsylvania conducts testing in streams for monitoring biodiversity, we find Pennsylvania's implementing policies to protect the biological integrity of the streams.

Under 30 CFR 732.17(h)(11)(ii), we are required to obtain written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the CWA (33 U.S.C. 1251 et seq. ) or the CAA (42 U.S.C. 7401 et seq. ). The revision that Pennsylvania proposes to make in this amendment pertains to water quality standards. Therefore, we asked EPA to concur on the amendment in a letter dated October 13, 2010 (Administrative Record No. 854.04). The EPA provided its conditional concurrence on August 20, 2013, and clarification on May 20, 2014, and March 26, 2015 (administrative record numbers are identified below). Prior to providing its concurrence, EPA had communicated with us on several occasions and we and/or Pennsylvania responded to their concerns and comments. The entire content of the letters and communications can be found in the administrative record. We summarize the communications below:

1. OSMRE's First Letter to EPA: We submitted the proposed program amendment to EPA for review, comment, and concurrence on October 13, 2010 (Administrative Record No. PA 854.04).

EPA sent us its first response to the proposed amendment on February 10, 2011, (Administrative Record No. PA 854.07), and concluded that it could not provide concurrence because of insufficient information contained in the submission. In order to provide concurrence, EPA requested additional information regarding: The definitions of passive treatment and post-mining pollutional discharge; classes/categories of discharges suitable for passive treatment; NPDES modifications; Pennsylvania's use of BPJ as documented in 1994; and manganese/water-quality based ELGS. The letter reaffirmed that compliance with the CWA is an integral part of SMCRA, and that Pennsylvania's permitting program must comply with regulations implementing the NPDES program and compliance with the CWA before approval or denial of new, modified, amended, or renewed permits.

Pennsylvania responded to EPA's February 10, 2011, letter by sending us a letter on December 9, 2011 (Administrative Record No. PA 854.12). Pennsylvania stated that subsection 87.102(e) establishes treatment standards for post-mining pollutional discharges from surface coal mining operations that are designed to supplement the ELGS established by EPA. Pennsylvania pointed out that the only EPA-established ELGS for post-mining areas on surface mines are that discharges may not exceed 0.5 ml/L maximum for settleable solids and pH must be maintained in the range of 6.0 to 9.0 at all times.

Pennsylvania also stated that dischargers are required to provide interim treatment to comply with Pennsylvania's Group A effluent requirements. These requirements include limits for iron, manganese, suspended solids, and alkalinity. In addition, Pennsylvania stated that a post-mining pollutional discharge must be treated sufficiently by the discharger to meet the more stringent of either the applicable TBELS or the WQBELS in Pennsylvania's program (at Chapters 91-96), including the iron and manganese criteria for aquatic life and PWS use protection in Chapter 93, Water Quality Standards.

Regarding passive treatment systems, Pennsylvania clarified that the three subsets of discharges with defining criteria allowing for the use of passive treatment are a starting point and are not a substitute for actual performance of the passive treatment system. Pennsylvania stated the discharges must also meet in-stream numeric criteria for iron and manganese established in Chapter 93. Pennsylvania also mentioned that in addition to establishing TBELS for post-mining pollutional discharges, 25 Pa. Code § 87.102(e) prescribes design and construction requirements for passive treatment systems that Pennsylvania determined would be necessary to adequately treat the identified subset of post-mining pollutional discharges. Further, it stated that this section and its counterpart sections supplement existing NPDES requirements and are not intended to implement the NPDES regulations for case-by-case development of TBELS requirements in permits.

Pennsylvania responded to EPA's request for clarification of the definitions of passive treatment system and post-mining pollutional discharge by clarifying that passive treatment systems require ongoing operation and maintenance activity, but less frequent monitoring and continuous management; and that a post-mining pollutional discharge is a discharge emanating from, or hydrologically connected to, the permit area which remains after coal mining activities have been completed and does not meet effluent requirements in 25 Pa Code § 87.102 or its parallel counterparts.

Regarding EPA's concerns about NPDES permit modifications, Pennsylvania emphasized that PA SMCRA explicitly requires compliance with the regulations in Chapter 92a related to NPDES permitting and Chapter 93 related to water quality standards.

Pennsylvania acknowledged that its BPJ guidance was finalized in 1994 and that advances have been made over the past two decades but stated its staff is aware of technological improvements and has been applying this knowledge in practice for many years at specific sites.

OSMRE submitted Pennsylvania's December 9, 2011, letter to EPA for review and response on January 4, 2012 (Administrative Record No. PA 854.13).

2. EPA 's Second Letter to OSMRE: EPA responded to Pennsylvania's December 9, 2011, letter by sending us a letter dated August 20, 2013 (Administrative Record No. PA 854.15). EPA noted Pennsylvania's responses and provided its concurrence based on Pennsylvania's assertion that the more stringent of either TBELS or WQBELS will be used to determine the appropriate discharge limit from all outfalls subject to the referenced proposed revision. EPA also noted that its concurrence is contingent on Pennsylvania's assertion that Pennsylvania will not be using passive treatment regulatory standards for discharges emanating from underground mining operations. EPA recommended that Pennsylvania review its BPJ guidance for this proposed set of regulations and modify the guidance with any new information (including EPA's Acid Mine Drainage program implementation guidance) gained from studies performed by Pennsylvania and OSMRE.

3. OSMRE's Third Letter to EPA: By letter dated January 20, 2014, (Administrative Record No. PA 854.16), we sought clarification from EPA regarding several issues and comments submitted during the public comment period. The issues involved: Clarification regarding a January 28, 1992, Memorandum from EPA to Pennsylvania that concluded post-mining ground water seeps from reclaimed surface mines are not subject to the requirements of 40 CFR 434.52(a) (ELGS for post-mining areas); clarification from EPA regarding a public comment that EPA must first, or simultaneously, approve the changes in Pennsylvania's NPDES program; additional direction from EPA regarding use of the 1994 BPJ analysis for post-mining pollutional discharges; information regarding application of WQBELS for streams not designated as a PWS; and information regarding application of provisions of the CWA that protect the biological integrity of receiving streams from chemical or organic constituents of water discharged.

4. EPA 's Third Letter to OSMRE: EPA responded to our letter of January 20, 2014, by sending us a letter dated May 20, 2014 (Administrative Record No. PA 854.17). In response to the issues and concerns identified in our January 20, 2014, letter, EPA responded with the following explanation:

Regarding EPA's position as presented in the January 28, 1992, Memorandum to Pennsylvania regarding treatment of post-mining discharges, EPA stated the position taken by EPA in 1992 does not reflect current EPA regulatory analysis. EPA responded that seepage at a reclamation site (surface mine in stage 2 reclamation) does (emphasis added) include water that drains through waste rock, overburden, etc., rather than flows over the surface, and these seepages are subject to the effluent limit guidelines in 434 Subchapter E, Post-mining Areas.

Responding to a public comment that EPA must approve the proposed revisions as part of a revision to Pennsylvania's NPDES program, EPA requested that OSMRE identify those sections of the Pennsylvania program for which this would be necessary. Regarding Pennsylvania's use of 1994 BPJ information, EPA responded that it was, at the time, in discussions with Pennsylvania regarding its BPJ process.

Regarding in-stream manganese WQBELS, EPA stated that in Pennsylvania, all streams are designated as PWS critical use and that, pursuant to 25 Pa. Code § 96.3(c), manganese is a PWS standard. According to this letter, compliance must be evaluated at the nearest downstream drinking water intake from the discharge. As noted in EPA's fourth letter to OSMRE, however, this statement is erroneous.

Regarding the protection of the biological integrity of receiving streams, EPA noted that under 40 CFR 122.44(d)(1)(ii), WET testing can and should be used to ensure discharges are not toxic and dangerous to aquatic life. EPA also noted 25 Pa. Code § 93.6, which states in part, that, “[w]ater may not contain substances attributable to point or nonpoint source discharges in concentration or amounts sufficient to be inimical or harmful to the water uses to be protected or to human, animal, plant or aquatic life.”

5. EPA 's Fourth Letter to OSMRE: EPA sent us a letter on July 2, 2014, (Administrative Record No. PA 854.18), to correct a response that was given by EPA in its May 20, 2014, letter to us that addressed WQBELS for manganese in streams that are not designated PWS, critical use. EPA stated that, contrary to what it said in its May 20, 2014, letter, manganese is monitored at the point of discharge, rather than at the nearest downstream drinking water intake from the discharge.

6. OSMRE's First Letter to Pennsylvania: By letter dated August 7, 2014, (Administrative Record No. PA 854.20), we requested additional information from Pennsylvania and notified Pennsylvania of EPA's change in interpretation regarding ground water seeps and the applicability of the limitations provided in 40 CFR part 434. We questioned Pennsylvania on its position of including 25 Pa. Code § 87.102(e)(2)(iii), which is the third criterion involving permitted use of passive treatment for post-mining pollutional discharges involving a discharge with a net acidity always less than 300 mg/L, as a discharge criterion that is suitable for passive treatment. Further, we questioned the inclusion of the phrase “but are not limited to” in 25 Pa. Code § 87.102(e)(2) because it would allow approval of the use of passive treatment on other discharges not specified. We also noted the passage of 20 years since the BPJ analysis was issued and the emergence of more recent studies and other more recent experience demonstrating the limitations of passive treatment technologies. We questioned how the provisions of 25 Pa. Code §§ 87.102(e)(3) and (4) would be enforced; how the reclamation needs will be bonded or otherwise financially secured; and who would be responsible for operation and maintenance of the treatment systems. We also noted that Pennsylvania's regulations do not address the 40 CFR 434.52 effluent requirement that the discharge have no more than 0.5 ml/L of settleable solids.

7. Pennsylvania's Second Letter to OSMRE: Pennsylvania responded to our August 2014, letter on October 9, 2014, (Administrative Record No. 854.21), with the following responses:

Regarding our concern with the third category of discharges suitable for passive treatment (less than 300 mg/L of acidity) and the open-ended nature of the regulation that could lead to approval of passive treatment systems that cannot maintain effectiveness, Pennsylvania responded that the totality of the regulations prevents approval of a system that will not function well. Further, Pennsylvania asserted that only those passive treatment systems that can achieve the effluent requirements and can be designed and constructed to meet the performance requirements can be approved by Pennsylvania.

Pennsylvania asserted that 25 Pa. Code § 87.102(e)(3) and comparable sections in the other chapters are performance standards which must be met, and effluent limits will be determined and included in the NPDES permit that accompanies the SMCRA permit. Both the NPDES and SMCRA permits will be maintained as long as the post-mining pollutional discharge continues to require treatment. Pennsylvania advised that treatment systems will be bonded or otherwise financially secured in accordance with the approved program.

Pennsylvania asserted that there are no Federal counterparts to the provisions in 25 Pa. Code § 87.102(e) and comparable subsections, and, therefore, they are as effective as and no less stringent than the Federal requirements. Pennsylvania asserted it uses all the tools available in its technical review to ensure treatment of post-mining pollutional discharges is consistent with current scientific knowledge and uses the best system of performance.

Regarding our concerns about the absence of a settleable solids limit in the Pennsylvania regulations for post-mining pollutional discharges, and recognizing that the EPA standards at 40 CFR 434.52(a) for post-mining areas require no more than 0.5 ml/L in the discharge, Pennsylvania responded that the narrative water quality standards at 25 Pa. Code 93.6(b), Water quality criteria, addresses pollutants, turbidity, or settle-to-form deposits. Pennsylvania stated turbidity addresses suspended solids, while settle-to-form deposits address settleable solids and that NPDES permits for individual coal mining permits will properly address settleable solids.

Regarding system performance monitoring and maintenance, Pennsylvania responded that the operator is responsible for compliance with the monitoring schedule in the NPDES permit and for operation and maintenance of the treatment systems.

Regarding financial assurances for reclamation needs, Pennsylvania stated that the treatment systems will become part of the SMCRA and NPDES permits and will be bonded in accordance with financial assurance requirements approved by OSMRE on August 10, 2010. (78 FR 48526).

8. EPA 's Fifth Letter to OSMRE: On March 26, 2015, (Administrative Record No. PA 854.22), EPA sent us a letter referencing its August 20, 2013, concurrence letter and its January 20, 2014, follow-up letter. It reiterated its conditional concurrence that made clear its approval is contingent upon Pennsylvania's assertion that the more stringent of either TBELS or WQBELS will apply to any NPDES discharge regardless of SMCRA obligations; that the provisions of 30 CFR 816.42, requiring that all applicable State and Federal water quality laws and regulations along with EPA effluent limitations in 40 CFR part 434 will apply; and neither SMCRA nor its implementing regulations supersede, modify, or repeal the CWA and its implementing regulations. EPA also stated that NPDES permits for post-mining pollutional discharges require the pH to be between 6.0 and 9.0 unless there is a variance and require that settleable solids not exceed 0.5 mg/L.

Based on the above findings, we are approving the Pennsylvania amendment that was sent to us on October 1, 2010, with one exception. We are deferring our decision on the inclusion of minimal impact post-mining discharges in the definition of post-mining pollutional discharge until such time as the State submits the definition of minimal impact post-mining discharge to us as a proposed program amendment.

To implement this decision, we are amending the Federal regulations, at 30 CFR part 938, that codify decisions concerning the Pennsylvania program. In accordance with the Administrative Procedure Act (5 U.S.C. 500 et seq. ), this rule will take effect 30 days after the date of publication. Section 503(a) of SMCRA requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. SMCRA requires consistency of State and Federal standards.

This rule would not effect a taking of private property or otherwise have taking implications that would result in public property being taken for government use without just compensation under the law. Therefore, a takings implication assessment is not required. This determination is based on an analysis of the corresponding Federal regulations.

Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget (OMB) will review all significant rules. Pursuant to OMB guidance, dated October 12, 1993, the approval of State program amendments is exempted from OMB review under Executive Order 12866. Executive Order 13563, which reaffirms and supplements Executive Order 12866, retains this exemption.

State program amendments are not regulatory actions under Executive Order 13771 because they are exempt from review under Executive Order 12866.

The Department of the Interior has reviewed this rule as required by section 3(a) of Executive Order 12988. The Department has determined that this Federal Register notice meets the criteria of section 3 of Executive Order 12988, which is intended to ensure that the agency review its legislation and proposed regulations to eliminate drafting errors and ambiguity; that the agency write its legislation and regulations to minimize litigation; and that the agency's legislation and regulations provide a clear legal standard for affected conduct rather than a general standard, and promote simplification and burden reduction. Because section 3 focuses on the quality of Federal legislation and regulations, the Department limited its review under this Executive Order to the quality of this Federal Register notice and to changes to the Federal regulations. The review under this Executive Order did not extend to the language of the State regulatory program or to the program amendment that the Commonwealth of Pennsylvania drafted.

This rule has potential Federalism implications as defined under Section 1(a) of Executive Order 13132. Executive Order 13132 directs agencies to “grant the States the maximum administrative discretion possible” with respect to Federal statutes and regulations administered by the States. Pennsylvania, through its approved regulatory program, implements and administers SMCRA and its implementing regulations at the state level. This rule approves an amendment to the Pennsylvania program submitted and drafted by the State, and thus is consistent with the direction to provide maximum administrative discretion to States.

The Department of the Interior strives to strengthen its government-to-government relationship with Tribes through a commitment to consultation with Tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria in Executive Order 13175, and have determined that it has no substantial direct effects on federally recognized Tribes or on the distribution of power and responsibilities between the Federal Government and Tribes. Therefore, consultation under the Department's tribal consultation policy is not required. The basis for this determination is that our decision is on the Pennsylvania program that does not include Tribal lands or regulation of activities on Tribal lands. Tribal lands are regulated independently under the applicable, approved Federal program.

Executive Order 13211 requires agencies to prepare a Statement of Energy Effects for a rulemaking that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not significant energy action under the definition in Executive Order 13211, a Statement of Energy Effects is not required.

This rule is not subject to Executive Order 13045 because this is not an economically significant regulatory action as defined by Executive Order 12866; and this action does not address environmental health or safety risks disproportionately affecting children.

Consistent with sections 501(a) and 702(d) of SMCRA (30 U.S.C. 1251 (a) and 1292(d), respectively) and the U.S. Department of the Interior Departmental Manual, part 516, section 13.5(A), State program amendments are not major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C).

Section 12(d) of the National Technology Transfer and Advancement Act (15 U.S.C. 3701 et seq. ) directs OSMRE to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. (OMB Circular A-119 at p. 14). This action is not subject to the requirements of section 12(d) of the NTTAA because application of those requirements would be inconsistent with SMCRA.

This rule does not include requests and requirements of an individual, partnership, or corporation to obtain information and report it to a Federal agency. As this rule does not contain information collection requirements, a submission to the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ) is not required.

This rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). The State submittal, which is the subject of this rule, is based upon corresponding Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the corresponding Federal regulations.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based on an analysis of the corresponding Federal regulations, which were determined not to constitute a major rule.

This rule will not impose an unfunded mandate on State, local, or Tribal governments, or the private sector of more than $100 million in any given year. The rule does not have a significant or unique effect on State, local, or Tribal governments or the private sector. This determination is based an analysis of the corresponding Federal regulations, which were determined not to impose an unfunded mandate. Therefore, a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq. ) is not required.

For the reasons set out in the preamble, the Office of Surface Mining Reclamation and Enforcement amends 30 CFR part 938 as follows:

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

Epidemiological studies have shown statistically significant correlations between elevated levels of PM 2.5 (particulate matter with a diameter of 2.5 microns or less) and premature mortality. Other important health effects associated with PM 2.5 exposure include aggravation of respiratory and cardiovascular disease, changes in lung function, and increased respiratory symptoms. Individuals particularly sensitive to PM 2.5 exposure include older adults, people with heart and lung disease, and children. 1 PM 2.5 can be emitted directly into the atmosphere as a solid or liquid particle (“primary PM 2.5 ” or “direct PM 2.5 ”) or can be formed in the atmosphere as a result of various chemical reactions among precursor pollutants such as nitrogen oxides, sulfur oxides, volatile organic compounds, and ammonia (“secondary PM 2.5 ”). 2

The EPA first established annual and 24-hour NAAQS for PM 2.5 on July 18, 1997. 3 The annual standard was set at 15.0 micrograms per cubic meter (µg/m 3 ) based on a 3-year average of annual mean PM 2.5 concentrations, and the 24-hour (daily) standard was set at 65 µg/m 3 based on the 3-year average of the annual 98th percentile values of 24-hour PM 2.5 concentrations at each monitor within an area. 4 On October 17, 2006, the EPA revised the level of the 24-hour PM 2.5 NAAQS to 35 µg/m 3 based on a 3-year average of the annual 98th percentile values of 24-hour concentrations. 5 On January 15, 2013, the EPA revised the annual standard to 12.0 µg/m 3 based on a 3-year average of annual mean PM 2.5 concentrations. 6 We refer to this standard as the 2012 PM 2.5 NAAQS.

Following promulgation of a new or revised NAAQS, the EPA is required by CAA section 107(d) to designate areas throughout the nation as attaining or not attaining the NAAQS. On November 13, 2009, the EPA designated the South Coast area as nonattainment for the 2006 PM 2.5 NAAQS. 7 The EPA classified the area as Moderate nonattainment on June 2, 2014 and reclassified it as Serious nonattainment for these NAAQS on January 13, 2016. 8 On January 15, 2015, the EPA designated and classified the South Coast area as Moderate nonattainment for the 2012 PM 2.5 NAAQS. 9 The South Coast area is also designated and classified as Moderate nonattainment for the 1997 annual and 24-hour PM 2.5 NAAQS. 10

The local air district with primary responsibility for developing a plan to attain the PM 2.5 NAAQS in the South Coast area is the South Coast Air Quality Management District (SCAQMD or “District”). The District works cooperatively with the California Air Resources Board (CARB) in preparing these plans. Authority for regulating sources in the South Coast is split between the District, which has responsibility for regulating stationary and most area sources, and CARB, which has responsibility for regulating most mobile sources and some categories of consumer products.

On July 2, 2020, we proposed to approve or conditionally approve portions of a SIP revision submitted by California to address CAA requirements for the PM 2.5 NAAQS in the South Coast nonattainment area. 11 The submitted SIP revision, the “Final 2016 Air Quality Management Plan (March 2017),” was adopted by the SCAQMD Governing Board on March 3, 2017 and submitted by CARB to the EPA on April 27, 2017. 12 We refer to those portions of this SIP submission that address the Serious area requirements for the 2006 PM 2.5 NAAQS and the Moderate area requirements for the 2012 PM 2.5 NAAQS as the “2016 PM 2.5 Plan” or “Plan.” The EPA previously approved those portions of the 2016 PM 2.5 Plan that pertain to the requirements for implementing the 2006 PM 2.5 NAAQS, except for the contingency measure component of the Plan. 13

As part of our July 2, 2020 action, we proposed to approve the following elements of the 2016 PM 2.5 Plan as meeting the CAA Moderate area requirements for the 2012 PM 2.5 NAAQS: The 2012 base year emissions inventories, the reasonably available control measure/reasonably available control technology (RACM/RACT) demonstration, the demonstration that attainment by the Moderate area attainment date of December 31, 2021 is impracticable, the reasonable further progress (RFP) demonstration, the quantitative milestones, the motor vehicle emissions budgets for 2019 and 2022, and SCAQMD's commitments to adopt and implement specific rules and measures to achieve emission reductions and to submit the rules and measures to CARB for transmittal to the EPA as a revision to the SIP. We also proposed to conditionally approve the contingency measure element of the 2016 PM 2.5 Plan as meeting the Serious area planning requirements for the 2006 PM 2.5 NAAQS and the Moderate area planning requirements for the 2012 PM 2.5 NAAQS. Lastly, we proposed to reclassify the South Coast PM 2.5 nonattainment area, including reservation areas of Indian country, as Serious nonattainment for the 2012 PM 2.5 standard. 14

With respect to the contingency measure requirement, in our proposed rule, we noted that the EPA's longstanding interpretation of section 172(c)(9) that states may rely on already-implemented measures as contingency measures (if they provide emissions reductions in excess of those needed to meet any other nonattainment plan requirements) was rejected by the Ninth Circuit Court of Appeals in a case referred to as Bahr v. EPA (“ Bahr” ). 15 In Bahr, the Ninth Circuit concluded that contingency measures must be measures that would take effect at the time the area fails to make RFP or to attain by the applicable attainment date, not before. 16 Thus, within the geographic jurisdiction of the Ninth Circuit, states cannot rely on already-implemented control measures to comply with the contingency measure requirements under CAA sections 172(c)(9).

Our proposed conditional approval of the contingency measure element of the 2016 PM 2.5 Plan relied on specific commitments: (1) From the District to modify an existing rule, Rule 445 (“Wood Burning Devices”), to lower the wood burning curtailment threshold upon any of the four EPA determinations ( i.e., “findings of failure”) listed in 40 CFR 51.1014(a); (2) from the District to submit the revised rule to CARB for transmittal to the EPA by the earlier of (a) one year from the date of the EPA's conditional approval of the contingency measures for the 2012 annual PM 2.5 standard, or (b) 60 days after the date the EPA makes a determination that the South Coast area has failed to attain the 2006 24-hour PM 2.5 standards but no later than one year after the date of the EPA's conditional approval of the contingency measures for these standards;  17 and (3) from CARB to submit the revised District rule to the EPA as a SIP revision by the earlier of these two dates. 18 For more information about these submittals, please see our proposed rule.

With respect to reclassification, in the proposed rule, we explained that under section 188(c)(2) of the Act, the attainment date for a Serious area “shall be as expeditiously as practicable but no later than the end of the tenth calendar year beginning after the area's designation as nonattainment. . .” The EPA designated the South Coast area as nonattainment for the 2012 PM 2.5 standard effective April 15, 2015. 19 Therefore, as a result of our reclassification of the South Coast area as a Serious nonattainment area, the attainment date under section 188(c)(2) of the Act for the 2012 PM 2.5 NAAQS in this area is as expeditiously as practicable but no later than December 31, 2025.

Our proposed rule also identified the Serious area attainment plan elements that California would, upon reclassification, have to submit to satisfy the statutory requirements that apply to Serious areas, including the requirements of subpart 4 of part D, title I of the Act. 20 The EPA explained that under section 189(b)(2) of the Act, the State must submit the required provisions to implement best available control measures (BACM), including best available control technology (BACT), 21 no later than 18 months after reclassification. Because an up-to-date emissions inventory serves as the foundation for a state's BACM and BACT determinations, the EPA proposed to also require the State to submit the emissions inventory required under CAA section 172(c)(3) within 18 months after the effective date of final reclassification. Similarly, because an effective evaluation of BACM and BACT requires evaluation of the precursor pollutants that must be controlled to provide for expeditious attainment in the area, the EPA proposed to require the State to submit any optional precursor insignificance demonstrations by this same date. The EPA proposed to require the State to submit the attainment demonstration required under section 189(b)(1)(A) and all other attainment-related plan elements for the South Coast area no later the end of the eighth calendar year after designation— i.e., by December 31, 2023. We noted that although section 189(b)(2) generally provides for up to four years after a discretionary reclassification for the state to submit the required attainment demonstration, given the timing of the reclassification action less than two years before the Moderate area attainment date, it is appropriate in this case for the EPA to establish an earlier SIP submission deadline to assure timely implementation of the statutory requirements. 22

The EPA's proposed action provided a 30-day public comment period that ended on August 3, 2020. During this period, the EPA received comments from three anonymous commenters. 23 None of the comments received are relevant to the EPA's action.

For the reasons discussed in detail in the proposed rule and summarized herein, under CAA section 110(k)(3), the EPA is taking final action to approve or conditionally approve portions of the 2016 PM 2.5 Plan submitted by the State of California. We are finalizing approval of the following elements of the 2016 PM 2.5 Plan as meeting the Moderate area requirements for the 2012 PM 2.5 NAAQS:

• The base year emissions inventories as meeting the requirements of CAA section 172(c)(3);

• the RACM/RACT demonstration as meeting the requirements of CAA sections 172(c)(1) and 189(a)(1)(C);

• the demonstration that attainment by the Moderate area attainment date of December 31, 2021 is impracticable as meeting the requirements of CAA section 189(a)(1)(B)(ii);

• the RFP demonstration as meeting the requirements of CAA section 172(c)(2);

• the quantitative milestones as meeting the requirements of CAA section 189(c);

• the motor vehicle emissions budgets for 2019 and 2022, because they are derived from an approvable RFP demonstration and meet the requirements of CAA section 176(c) and 40 CFR part 93, subpart A;  24 and

• the SCAQMD's commitments to adopt and implement specific rules and measures in accordance with the schedule provided in Chapter 4 of the 2016 PM 2.5 Plan to achieve the emission reductions shown therein, and to submit these rules and measures to CARB for transmittal to the EPA as a revision to the SIP, as stated on page 9 of SCAQMD Governing Board Resolution 17-2.

The EPA is also finalizing a conditional approval of the contingency measure element of the 2016 PM 2.5 Plan as meeting the requirements of CAA section 172(c)(9) for the 2006 PM 2.5 NAAQS and for the 2012 PM 2.5 NAAQS. We note that the EPA determined on September 16, 2020, that the South Coast area had failed to timely attain the 2006 PM 2.5 NAAQS, 25 and that CARB is required to submit specified revisions to Rule 445 (“Wood Burning Devices”) as a SIP revision to the EPA no later than 60 days after this date, consistent with the terms of its commitment under CAA section 110(k)(4). 26

In accordance with section 188(b)(1) of the Act, the EPA is taking final action to reclassify the South Coast area from Moderate to Serious nonattainment for the 2012 annual PM 2.5 standard, based on the agency's determination that the South Coast area cannot practicably attain the standard by the Moderate area attainment date of December 31, 2021.

Under section 188(c)(2) of the Act, the attainment date for a Serious area “shall be as expeditiously as practicable but no later than the end of the tenth calendar year beginning after the area's designation as nonattainment . . .” The South Coast area was designated nonattainment for the 2012 PM 2.5 NAAQS effective April 15, 2015. 27 Therefore, as a result of our reclassification of the South Coast area as a Serious nonattainment area, section 188(c)(2) of the Act requires that the area attain the 2012 PM 2.5 NAAQS as expeditiously as practicable but no later than December 31, 2025.

When the South Coast area was designated nonattainment for the 2012 PM 2.5 NAAQS, five Indian tribes were located within the boundaries of the nonattainment area: The Cahuilla Band of Mission Indians of the Cahuilla Reservation, the Morongo Band of Mission Indians, the Ramona Band of Cahuilla, the San Manuel Band of Mission Indians, and the Soboba Band of Luiseno Indians. At that time, the main body of land belonging to the Pechanga Band of Luiseno Mission Indians of the Pechanga Reservation was expressly excluded from the South Coast 2012 PM 2.5 nonattainment area. However, since designation, the tribe has acquired the Meadowbrook parcel, which is located approximately 30 miles northwest of the northern boundary of the Reservation and is located within the South Coast PM 2.5 nonattainment area. 28

Regulations implemented under the authority of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971 et seq. ) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq. ) governing the harvest of BFT by persons and vessels subject to U.S. jurisdiction are found at 50 CFR part 635. Section 635.27 subdivides the U.S. BFT quota recommended by the International Commission for the Conservation of Atlantic Tunas (ICCAT) and as implemented by the United States among the various domestic fishing categories, per the allocations established in the 2006 Consolidated Highly Migratory Species Fishery Management Plan (2006 Consolidated HMS FMP) (71 FR 58058, October 2, 2006) and amendments. NMFS is required under ATCA and the Magnuson-Stevens Act to provide U.S. fishing vessels with a reasonable opportunity to harvest the ICCAT-recommended quota.

The current baseline General and Reserve category quotas are 555.7 mt and 29.5 mt, respectively. See § 635.27(a). Each of the General category time periods (January, June through August, September, October through November, and December) is allocated a “subquota” or portion of the annual General category quota. The baseline subquotas for each time period are as follows: 29.5 mt for January; 277.9 mt for June through August; 147.3 mt for September; 72.2 mt for October through November; and 28.9 mt for December. Any unused General category quota rolls forward from one time period to the next, and is available for use in subsequent time periods. To date, NMFS has taken several actions that resulted in adjustments to the General and Reserve category quotas (85 FR 17, January 2, 2020; 85 FR 6828, February 6, 2020; 85 FR 43148, July 16, 2020; 85 FR 59445, September 22, 2020; 85 FR 61872, October 1, 2020; 85 FR 64411, October 13, 2020; and 85 FR 68798, October 30, 2020). In the most recent action (85 FR 68798), NMFS reopened the General category fishery for two days, October 28 and 29, 2020.

As of November 4, 2020, preliminary landings data indicate that the General category landed 103.5 mt before closing. This represents 81 percent of the adjusted October through November subquota of 127.7 mt. Under regulations at § 635.28(a)(2), NMFS may reopen the fishery if NMFS determines that reasonable fishing opportunities are available. Based on average October landings rates, NMFS has determined that reopening the General category fishery for two days is appropriate given the amount of unused October through November subquota ( i.e., 24.2 mt); depending on weather conditions and fish availability, a longer reopening could risk exceeding the unused quota available for the October through November subquota period. NMFS will need to account for 2020 landings and dead discards within the adjusted U.S. quota, consistent with ICCAT recommendations, and anticipates having sufficient quota to do that. NMFS anticipates that General category participants in all areas and time periods will have opportunities to harvest the General category quota in 2020, through active inseason management such as the timing of quota transfers, as practicable. Thus, this action would allow fishermen to take advantage of the availability of fish on the fishing grounds to the extent consistent with the available amount of quota and other management objectives, while avoiding quota exceedance.

Therefore, the General category fishery will reopen at 12:30 a.m., November 7, 2020, and close at 11:30 p.m., November 8, 2020. The General category daily retention limit during this reopening remains the same as prior to closing: one large medium or giant ( i.e., measuring 73 inches (185 cm) curved fork length or greater) bluefin tuna per vessel per day/trip. This action applies to Atlantic tunas General category (commercial) permitted vessels and HMS Charter/Headboat category permitted vessels with a commercial sale endorsement when fishing commercially for BFT. Retaining, possessing, or landing large medium or giant BFT by persons aboard vessels permitted in the General and HMS Charter/Headboat categories must cease at 11:30 p.m. local time on November 8, 2020.

The General category will automatically reopen December 1, 2020, for the December 2020 subquota time period (consistent with regulations at § 635.27(a)(1)) at the default one-fish level. In January 2020, NMFS adjusted the General category base subquota for the December 2020 period to 9.4 mt (85 FR 17, January 2, 2020). Based on quota availability in the Reserve, NMFS may consider transferring additional quota to the December subquota period, as appropriate.

Fishermen may catch and release (or tag and release) BFT of all sizes, subject to the requirements of the catch-and-release and tag-and-release programs at § 635.26. All BFT that are released must be handled in a manner that will maximize their survival, and without removing the fish from the water, consistent with requirements at § 635.21(a)(1). For additional information on safe handling, see the “Careful Catch and Release” brochure available at https://www.fisheries.noaa.gov/resource/outreach-and-education/careful-catch-and-release-brochure/.

NMFS will continue to monitor the BFT fisheries closely. Dealers are required to submit landing reports within 24 hours of a dealer receiving BFT. Late reporting by dealers compromises NMFS' ability to timely implement actions such as quota and retention limit adjustment, as well as closures, and may result in enforcement actions. Additionally, and separate from the dealer reporting requirement, General and HMS Charter/Headboat category vessel owners are required to report the catch of all BFT retained or discarded dead within 24 hours of the landing(s) or end of each trip, by accessing hmspermits.noaa.gov, using the HMS Catch Reporting app, or calling (888) 872-8862 (Monday through Friday from 8 a.m. until 4:30 p.m.).

Depending on the level of fishing effort and catch rates of BFT, NMFS may determine that additional adjustments are necessary to ensure available subquotas are not exceeded or to enhance scientific data collection from, and fishing opportunities in, all geographic areas. If needed, subsequent adjustments will be published in the Federal Register . In addition, fishermen may call the Atlantic Tunas Information Line at (978) 281-9260, or access hmspermits.noaa.gov, for updates on quota monitoring and inseason adjustments.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is authorized by 50 CFR 635.28(a)(2), which was issued pursuant to section 304(c), and is exempt from review under Executive Order 12866.

The Assistant Administrator for NMFS finds that pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice of, and an opportunity for public comment on, this action for the following reasons: The regulations implementing the 2006 Consolidated HMS FMP and amendments provide for inseason retention limit adjustments to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. Affording prior notice and opportunity for public comment to reopen the fishery is impracticable and contrary to the public interest. The General category recently closed, but based on available BFT quotas, fishery performance in recent weeks, and the availability of BFT on the fishing grounds, responsive reopening of the fishery is warranted to allow fishermen to take advantage of availability of fish and of quota. NMFS could not have proposed this action earlier, as it needed to consider and respond to updated data and information about fishery conditions and this year's landings. If NMFS was to offer a public comment period now, after having appropriately considered that data, it would preclude fishermen from harvesting BFT that are legally available. This action does not raise conservation and management concerns. For all of the above reasons, there is good cause under 5 U.S.C. 553(d) to waive the 30-day delay in effectiveness.

The Magnuson-Stevens Act requires that each regional fishery management council submit any FMP amendment it prepares to NMFS for review and approval, disapproval, or partial approval by the Secretary of Commerce (Secretary). The Magnuson-Stevens Act also requires that NMFS, upon receiving an FMP amendment, immediately publish a notice in the Federal Register announcing that the amendment is available for public review and comment.

The Notice of Availability (NOA) for Amendment 50 was published in the Federal Register on July 15, 2020 (85 FR 42817) with a 60-day comment period that ended on September 14, 2020. NMFS received two comments during the public comment on the NOA. NMFS is not disapproving any part of Amendment 50 in response to these comments. NMFS summarized and responded to these comments under Comments and Responses, below.

NMFS determined that Amendment 50 is consistent with the Magnuson-Stevens Act and other applicable laws, and the Secretary of Commerce approved Amendment 50 on October 13, 2020. The July 15, 2020 NOA contains additional information on this action. No changes to Federal regulations are necessary to implement the Amendment.

NMFS manages the crab fisheries in the exclusive economic zone under the Crab FMP. The North Pacific Fishery Management Council (Council) prepared the Crab FMP under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801 et seq. Regulations governing U.S. fisheries and implementing the FMP appear at 50 CFR parts 600 and 680.

Through the Crab FMP, the State of Alaska (the State) is delegated management authority over certain aspects of the SMBKC fishery consistent with the Magnuson-Stevens Act and the FMP. Specific to this Crab FMP amendment, the State has established a harvest strategy to set total allowable catch (TAC) levels and guideline harvest levels (GHLs), and season or area closures when the TAC or GHL is reached. The State's SMBKC harvest strategy (5 AAC 34.917) is more conservative than the Crab FMP's control rule parameters. Under the State's harvest strategy, directed fishing is prohibited at or below a larger biomass level than the Crab FMP's overfishing level (F OFL ) control rule. During rebuilding, the State's harvest strategy will apply.

NMFS declared the SMBKC stock overfished on October 22, 2018, because the estimated spawning biomass was below the minimum stock size threshold specified in the Crab FMP. In order to comply with provisions of the Magnuson-Stevens Act, a rebuilding plan must be implemented prior to the start of the 2020/2021 fishing season.

In June 2020, the Council chose a rebuilding plan for SMBKC that allows directed harvest during rebuilding only if estimates of stock biomass are sufficient to open the fishery under the State's crab harvest strategy. The rebuilding plan is consistent with the Magnuson-Stevens Act (16 U.S.C. 1854(e)); with the National Standards (see Analysis Section 4.1); and with National Standard Guidelines (50 CFR 600.310) on time for rebuilding, specifically rebuilding within a time (T target ) that is as short as possible, taking into account the status and biology of any overfished stocks of fish, the needs of fishing communities, recommendations by international organizations in which the United States participates, and the interaction of the overfished stock of fish with the marine ecosystem. This rebuilding plan will allow directed fishing pursuant to the State's harvest strategy because such fishing, though limited, may provide important economic opportunities for harvesters, processors, and Alaska communities. Maintaining these economic opportunities for a limited directed commercial fishery under the State harvest strategy is important for harvesters, processors, and communities, particularly because the majority of commercial crab stocks are currently in a state of decline and future openings are likely to be limited or closed. Fishermen and communities must be able to diversify their portfolios and be flexible enough to take advantage of any available fishing opportunities each season to remain viable.

Under the Magnuson-Stevens Act, the time period specified for rebuilding a fishery generally should not exceed 10 years unless the biology of the stock or environmental conditions dictate otherwise, as is the case for SMBKC. Because ecological conditions represent the primary constraint on rebuilding the SMBKC fishery, the projected time for rebuilding, taking into account the biology of the species and current environmental conditions, is 25.5 years.

The directed fishery has been closed since 2016 under the State harvest strategy, and has only been open 6 out of the past 20 years. In addition to the State's conservative SMBKC harvest policy, multiple measures for habitat protection and bycatch reduction are in place for the stock. The St. Matthew Island Habitat Conservation Area (SMIHCA) was created in 2008 and expanded through Amendment 94 to the FMP for Groundfish of the BSAI Management Area to protect blue king crab habitat. Vessels fishing with non-pelagic trawl gear are prohibited from fishing in the SMIHCA. Other fishery closure areas include a 20 nautical mile (nmi) closure around the southern tip of Hall Island to trawling, hook-and-line, and pot fisheries for pollock, Pacific cod, and Atka mackerel to protect Steller sea lions, which also serves to limit fishing effort in areas occupied by SMBKC. In addition, State jurisdictional waters (0 to 3 nmi from shore) surrounding St. Matthew, Hall, and Pinnacle Islands are closed to the taking of king and Tanner crab and to commercial groundfish fishing.

Fishing mortality is not considered to be the primary constraining factor for rebuilding SMBKC. The groundfish fisheries incur low levels of bycatch of SMBKC, but in analytical projections average bycatch rates had no constraining effect on rebuilding (see Analysis Section 2.3). Instead, rebuilding will depend on successful recruitment of crab under ecosystem conditions that have recently been very unfavorable. Warm bottom temperatures, low pre-recruit biomass, and northward movement of predator species, primarily Pacific cod, have constrained stock growth (see Analysis Section 3.3.6). For this reason, the rebuilding plan aims to maintain existing low levels of fishing mortality with the anticipation that future ecosystem conditions will support SMBKC stock growth.

Amendment 50 adds Section 6.2.5 to the Crab FMP to include the approved rebuilding plan for SMBKC. Under the approved rebuilding plan, ecosystem indicators developed for the stock will be monitored for the foreseeable future. The NMFS eastern Bering Sea bottom-trawl survey provides data for the annual assessment of the status of crab stocks in the BSAI, including SMBKC, and this survey and assessment will continue throughout rebuilding. The Council's BSAI Crab Plan Team will report stock status and progress towards the rebuilt level in the Stock Assessment and Fishery Evaluation (SAFE) Report for the king and Tanner crab fisheries of the BSAI. Additionally, the State and NMFS monitor directed fishery catch and bycatch of blue king crabs in other fisheries. When the fishery is open, the State requires full observer coverage (100 percent) for both catcher vessels and catcher/processors participating in the crab fishery. Observers monitor harvest at sea and landings by catcher vessels to shoreside processors. The State reports the total harvest from the commercial crab fishery and that report will be included annually in the SAFE. The contribution of the rebuilding plan to stock recovery is additive to measures already in place that limit the effects of fishing activity on SMBKC.

During the public comment period for the NOA for Amendment 50, NMFS received two unique comments from two members of the public. NMFS is not disapproving any part of Amendment 50 in response to these comments. NMFS's responses to these comments are presented below.

Comment 1: One commenter expressed general support for this action.

Response: NMFS acknowledges this comment.

Comment 2: One commenter stated that crab fisheries in Alaska should be shut down.

Response: The Magnuson-Stevens Act and the Crab FMP require, among other things, that the Council and NMFS manage fisheries to prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery and base management decisions on the best scientific information available. The commenter provided no information to support shutting down crab fisheries in Alaska. Currently, crab fisheries in Alaska are being responsibly managed with conservative harvest strategies and provide important economic benefits to Alaskan communities.