The Food for Progress Program provides for the donation of U.S. agricultural commodities to developing countries and emerging democracies committed to introducing and expanding free enterprise in the agricultural sector. The commodities are generally sold on the local market and the proceeds are used to support agricultural development activities. The program has two principal objectives: to improve agricultural productivity and expand trade in agricultural products. The Food for Progress Program is authorized in section 1110 of the Food Security Act of 1985 (also known as the Food for Progress Act of 1985) (7 U.S.C. 1736o).

The Foreign Agricultural Service (FAS) implements the Food for Progress Program on behalf of CCC. FAS uses the regulation in 7 CFR part 1499, Food for Progress Program, in the administration of the Food for Progress Program. The previous version of the regulation was published as a final rule on August 28, 2019 (84 FR 45059).

The Food for Progress Program regulation, 7 CFR part 1499, refers to and cites various sections of 2 CFR part 25, Universal Identifier and System for Award Management, and 2 CFR part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. OMB amended 2 CFR parts 25 and 200 in August 2020 and, as a result, CCC has identified a number of instances where technical corrections to 7 CFR part 1499 are necessary to update citations and make the language consistent with 2 CFR parts 25 and 200. FAS, on behalf of CCC, is amending the Food for Progress Program regulation to make these technical corrections.

In addition, FAS is amending the Food for Progress Program regulation to make other changes that are technical or clarifying in nature and intended to improve the efficiency and effectiveness of the program, including the following:

(1) Clarifying that other regulations that are generally applicable to grants and cooperative agreements of USDA, including the applicable regulations set forth in 2 CFR chapters I, II, and IV, also apply to the Food for Progress Program, to the extent that such regulations do not directly conflict with the provisions of 7 CFR part 1499 (7 CFR 1499.1(c));

(2) Providing further detail about the impact description that must be included as part of the strategic analysis in an application for an award under the Food for Progress Program (7 CFR 1499.4(b)(2));

(3) Replacing “interim evaluation” with “midterm evaluation” to be consistent with the “Monitoring and Evaluation Policy,” issued by the Foreign Agricultural Service—Food Assistance Division, USDA (7 CFR 1499.4(b)(6) and 1499.13(d));

(4) Bringing the language in the regulation into better alignment with language in the Food for Progress Act of 1985 (7 CFR 1499.5(e)(4));

(5) Clarifying that the term “point of entry” refers to the point of entry of the donated commodities into the target country (7 CFR 1499.6(e));

(6) Providing that, when a recipient needs to use funds that have been advanced by CCC to pay approved expenses under an agreement, the recipient may transfer the funds from a bank account located in the United States, where they have been required by the regulation to be maintained, to a bank account in the target country (7 CFR 1499.6(f)(7));

(7) Clarifying that transportation of donated commodities to the designated discharge port or point of entry will be arranged for under an agreement, in the manner determined by CCC, by CCC or the recipient; and the recipient will be responsible for any transportation of the donated commodities after their arrival at the designated discharge port or point of entry for as long as the recipient has title to such donated commodities, except as may otherwise be provided in the agreement (7 CFR 1499.7(b) and (f));

(8) Providing that a recipient may only use the services of a transportation company that is legally operating in the country in which it will be transporting the donated commodities and that would not have a conflict of interest in transporting the commodities (7 CFR 1499.7(d));

(9) Clarifying that CCC will arrange for transporting the donated commodities in accordance with 7 CFR 1499.7(b)(1) when CCC determines that it is applicable, regardless of where and when title to the donated commodities passes to a recipient; and that a recipient must maintain the donated commodities in good condition from the time that it takes possession of them at the designated discharge port, point of entry, or point of receipt from the originating carrier until their distribution, sale, or barter (7 CFR 1499.8(b) and (c));

(10) Providing additional information about requirements regarding the acknowledgment of funding by USDA, the use of the USDA logo, and communications to the public, as well as the process for a recipient to request a waiver of compliance with one or more of such requirements (7 CFR 1499.8(d) and (e));

(11) Clarifying that the recipient's responsibility for the donated commodities, which becomes effective following transfer of title to the recipient, remains in effect for as long as the recipient has title to the commodities (7 CFR 1499.9(a) and (b) and 1499.10(a));

(12) Providing that the recipient must report damage to or loss of donated commodities in accordance with one of three stated procedures, depending on the estimated amount of such damage or loss (7 CFR 1499.9(b)(1));

(13) Clarifying that the “in excess of $5,000” threshold amount that triggers the requirement to inspect damaged donated commodities refers to the amount of damage sustained by the donated commodities, not to the overall value of the donated commodities; and the value of the donated commodities prior to the damage must be determined on the basis of the costs incurred by CCC with respect to such commodities, as well as costs incurred by the recipient and paid by CCC (7 CFR 1499.9(e));

(14) Modifying the text previously in 7 CFR 1499.13(f) and moving it to 7 CFR 1499.13(c) to clarify that information covering the receipt, handling, and disposition of the donated commodities, and the receipt and use of any sale proceeds, etc., must be included in the performance reports (7 CFR 1499.13(c)(ii) and (iii)); and

(15) Clarifying that the date of submission of the final expenditure report, as referenced in 2 CFR 200.334, will be the date of submission of the final financial report (7 CFR 1499.13(h)).

This rule is being issued as a final rule without prior notice and opportunity for comment. This rule involves a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts. The Administrative Procedure Act exempts such rules from the statutory requirement for prior notice and opportunity for comment (5 U.S.C. 553(a)(2)). Accordingly, this rule may be made effective less than 30 days after publication in the Federal Register .

The program covered by this regulation is included in the Assistance Listings for Federal Users at SAM.gov under the following FAS CFDA number: 10.606, Food for Progress.

CCC is committed to complying with the E-Government Act of 2002 (44 U.S.C. chapter 36), to promote the use of the internet and other information technologies to provide increased opportunities for citizens' access to Government information and services, and for other purposes.

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), the Office of Information and Regulatory Affairs has designated this rule as not a major rule, as defined by 5 U.S.C. 804(2).

Executive Order 12866, “Regulatory Planning and Review,” and Executive Order 13563, “Improving Regulation and Regulatory Review,” direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasized the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. The requirements in Executive Orders 12866 and 13563 for the analysis of costs and benefits apply to rules that are determined to be significant. It has been determined that this rule is not significant for the purposes of Executive Order 12866; therefore, this rule was not reviewed by the Office of Management and Budget.

This rule has been reviewed in accordance with Executive Order 12988, “Civil Justice Reform.” This rule does not preempt State or local laws, regulations, or policies unless they present an irreconcilable conflict with this rule. This rule will not be retroactive.

Executive Order 12372, “Intergovernmental Review of Federal Programs,” requires consultation with officials of State and local governments that would be directly affected by the proposed Federal financial assistance. The objectives of the Executive Order are to foster an intergovernmental partnership and a strengthened federalism by relying on State and local processes for the State and local government coordination and review of proposed Federal financial assistance and direct Federal development. This rule will not directly affect State or local officials and, for this reason, it is excluded from the scope of Executive Order 12372.

The Regulatory Flexibility Act (5 U.S.C. 601-612), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, generally requires an agency to prepare a regulatory flexibility analysis of any rule that is subject to notice and comment rulemaking under the Administrative Procedure Act (APA) or any other law, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The Regulatory Flexibility Act does not apply to this rule because CCC is not required by the APA or any other law to publish a notice of proposed rulemaking with respect to the subject matter of the rule.

This rule has been reviewed under Executive Order 13132, “Federalism.” This rule will not have any substantial direct effect on States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government, except as required by law. This rule does not impose substantial direct compliance costs on State and local governments. Therefore, consultation with the States was not required.

This rule has been reviewed in accordance with the requirements of Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” Executive Order 13175 requires Federal agencies to consult and coordinate with tribes on a government-to-government basis on policies that have tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. CCC does not expect this rule to have any effect on Indian tribes.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) does not apply to this rule because it does not impose any enforceable duty or contain any unfunded mandate as described under the UMRA.

For the reasons set forth in the preamble, the Commodity Credit Corporation amends part 1499 of title 7 of the Code of Regulations as follows:

The Rural Housing Service (RHS or Agency) is an agency of the United States Department of Agriculture (USDA) and offers a variety of programs to build or improve housing and essential community facilities in rural areas. RHS offers loans, grants, and loan guarantees for single- and multi-family housing, childcare centers, fire and police stations, hospitals, libraries, nursing homes, schools, first responder vehicles and equipment, housing for farm laborers and much more. RHS also provides technical assistance loans and grants in partnership with non-profit organizations, Indian tribes, State and Federal Government agencies, and local communities.

The RHS is issuing a final rule to amend the Single-Family Housing Guaranteed Loan Program (SFHGLP) regulation, 7 CFR part 3555, subparts B, C and D which will reinforce oversight and management of the growing SFHGLP portfolio. These changes will promote an efficient and robust management and oversight structure of lenders in the SFHGLP by strengthening underwriting practices, providing guidance for processing loan guarantees for applicants who are subject to administrative offset to collect delinquent child support payments, and streamline requirements for screening builder-contractors by lenders.

The updates align with the standards for managing credit programs recommended by the Office of Management and Budget (OMB) for Federally supervised lenders, minimum net worth, minimum line of credits, minimum experience, and approved lender participation requirements. These updates will also provide guidance for processing applications for individuals with delinquent child support payments and relaxes builder requirements to better align with the credit program requirements of other Federal agencies.

RHS published a proposed rule on June 9, 2021 (86 FR 30555) to solicit comments on the proposed updated requirements for Federally supervised lenders, minimum net worth and experience for non-supervised lenders, approved lender participation requirements, treatment of applicants with delinquent child support payments, and builder credit requirements for SFHGLP (86 FR 30555). The Agency received comments from six respondents including individuals, mortgage companies, and interested parties. Three of the comments are not applicable to the contents of the rule.

The following is a summary of the relevant comments:

Comment 1: One respondent opposed eliminating the background checks for builders stating the builder's integrity could not be thoroughly checked to avoid court appearances and rebuilding homes.

Agency Response: The Agency still relies on the lender to review and approve construction contractors or builders. The Agency has determined that these credit requirements are not the industry standard. The builder-contractor's ability to participate in such projects should be based on the applicant's and lender's review of the builder-contractor's experience, reputation, and financial ability to complete the project in a timely, efficient, and competent manner. The Agency believes the stance is correctly stated and stands behind the rule changes.

Comment 2: One respondent replied in favor of the proposed rule stating obtaining background checks for builders were difficult to obtain and could potentially hurt a builder's reputation if, for some unforeseen reason, you could not obtain a builder approval.

Agency Response: The Agency has determined no action is required.

Comment 3: One respondent agreed with certain delinquent child support provisions in the rule, however, the respondent raised concerns that the proposed change would be unduly difficult for rural families and children who are already experiencing housing challenges. The respondent noted that employment in rural areas is limited and felt that there are other means to addressing delinquent child support.

Agency Response: The Agency believes the stance is correctly stated and stands behind the rule changes.

A summary of the changes includes amending 7 CFR 3555.51(a)(8) to eliminate items (a)(8)(iv) because it refers to the Office of Thrift Supervision (OTS), which no longer exists. Furthermore, the current § 3555.51(a)(9) and (10) is intended to provide a path for lenders that are not regulated by state or federal agencies and do not meet the requirements of (a)(1) through (8) an opportunity to participate in the SFHGLP. Therefore, the introductory paragraph of § 3555.51(a)(9) and (10) will be amended to clarify that when lenders cannot meet the demonstrated ability criteria outlined under § 3555.51(a)(1) through (8), those lenders must submit additional documentation to demonstrate their ability to originate loans.

The final rule will amend § 3555.51 by adding paragraph (a)(11) (i) and (ii) to reflect Financial Requirements for Non-Supervised Lenders. All lenders not supervised by federal entities listed in § 3555.51 (a)(8) must have: (i) A minimum adjusted net worth of $250,000, or at least $50,000 in working capital plus one percent of the total volume in excess of $25 million in guaranteed loans originated, serviced, or purchased during the lender's prior fiscal year, up to a maximum required adjusted net worth of $2.5 million and, (ii) one or more lines of credit with a minimum aggregate of $1 million. The proposed financial thresholds are based on recommendations analysis of participating lenders. § 3555.51(a). Establishing minimum financial requirements for non-supervised lenders would potentially reduce the Agency's risk of doing business with entities that have insufficient financial resources. Lenders that meet these minimum financial requirements demonstrate trustworthiness that would contribute to the success of the SFHGLP. The Agency took a combination approach when developing the minimum requirements, including the Veterans Administration (VA) base requirement and adding a volume component to it. This is structured and capped following the FHA standard. By taking this action, the Agency will align lender approval requirements with those of other Federal credit programs and incorporate  1 the best practice recommendations outlined in Office of Management and Budget (OMB) Circular A-129. 2

Federally supervised lenders that meet the criteria of § 3555.51(a)(8) have demonstrated ability and will not be required to provide additional documentation. The Agency will require less documentation from the lender and make the process more efficient for Federally supervised lenders.

This final rule clarifies that lenders must meet applicable requirements in order to begin and continue participation in the SFHGLP. The Agency generally reviews each lender every two years to ensure compliance.

The Agency will amend § 3555.51 (b), SFHGLP participation requirements, to clarify by adding subparagraph (23) that lender eligibility will be reviewed every two years for continued participation in the SFHGLP. In addition, the Agency will clarify by adding subparagraph (24) that principal officers must have a minimum of two years of experience in originating or servicing mortgage loans as recommended in OMB Circular A-129. In order to be deemed eligible for continued lender participation in the SFHGLP, the lender and its principal officers must continue to meet all the criteria as outlined in § 3555.51, which, as amended, will include specific experience in underwriting and servicing loans, financial requirements for non-supervised lenders, and SFHGLP participation requirements.

The Agency has determined that obtaining builder-contractors credit and background checks is not an industry standard. The builder-contractor's ability to participate in such projects should be based on the applicant's and lender's review of the builder-contractor's experience, reputation, and financial ability to complete the project in a timely, efficient, and competent manner. The Agency will remove § 3555.105(b)(4) and (5) and thus streamline screening requirements, reduce administrative burden on the lender, and align with other Federal programs, including the agency's Direct Section 502 loan program, which does not have such requirements for builder-contractors.

Additionally, the Agency considers delinquent child support payments subject to administrative offset a significant derogatory obligation and an indication that an applicant does not have the reasonable ability or willingness to meet their obligations. It would be against the federal government's interest to guarantee a loan for an applicant from whom the federal government is simultaneously pursuing collection for a delinquent debt. This final rule will amend § 3555.151(i) (9) to specify that borrowers with delinquent child support payments, subject to collection by administrative offset, are ineligible unless the payments are brought current, the debt is paid in full, or otherwise satisfied.

Section 510(k) of Title V the Housing Act of 1949 (42 U.S.C. 1480(k)), as amended, authorizes the Secretary of the Department of Agriculture to promulgate rules and regulations as deemed necessary to carry out the purpose of that title.

This final rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget (OMB).

This rule has been reviewed under Executive Order 12988. In accordance with this rule: (1) Unless otherwise specifically provided, all state and local laws that conflict with this rule will be preempted; (2) no retroactive effect will be given to this rule except as specifically prescribed in the rule; and (3) administrative proceedings of the National Appeals Division of the Department of Agriculture (7 CFR part 11) must be exhausted before bringing suit in court that challenges action taken under this rule.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effect of their regulatory actions on State, local, and tribal governments, and the private sector. Under section 202 of the UMRA, the Agency generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, or tribal governments, in the aggregate, or to the private sector, of $100 million, or more, in any one year. When such a statement is needed for a rule, section 205 of the UMRA generally requires the Agency to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule.

This rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for state, local, and tribal governments, or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of the UMRA.

This document has been reviewed in accordance with 7 CFR part 1970, subpart A, “Environmental Policies.” RHS determined that this action does not constitute a major Federal action significantly affecting the quality of the environment. In accordance with the National Environmental Policy Act of 1969, Public Law 91-190, an Environmental Impact Statement is not required.

The policies contained in this rule do not have any substantial direct effect on States, on the relationship between the National Government and States, or on the distribution of power and responsibilities among the various levels of government. Nor does this final rule impose substantial direct compliance costs on state and local governments. Therefore, consultation with the States is not required.

The rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act (5 U.S.C. 601-612). The undersigned has determined and certified by signature on this document that this final rule will not have a significant economic impact on a substantial number of small entities since this rulemaking action does not involve a new or expanded program nor does it require any more action on the part of a small business than required of a large entity.

This program is not subject to the requirements of Executive Order 12372, “Intergovernmental Review of Federal Programs,” as implemented under USDA's regulations at 7 CFR part 3015.

This Executive order imposes requirements on RHS in the development of regulatory policies that have tribal implications or preempt tribal laws. RHS has determined that the final rule does not have a substantial direct effect on one or more Indian tribe(s) or on either the relationship or the distribution of powers and responsibilities between the Federal Government and Indian tribes. Thus, this final rule is not subject to the requirements of Executive Order 13175. If tribal leaders are interested in consulting with RHS on this final rule, they are encouraged to contact USDA's Office of Tribal Relations or RD's Native American Coordinator at: AIAN@usda.gov to request such a consultation.

The program affected by this final rule is listed in the Assistance Listing (AL) ( formerly Catalog of Federal Domestic Assistance ) under number 10.410, Very Low to Moderate Income Housing Loans (Section 502 Rural Housing Loans).

This final rule contains no new reporting or recordkeeping burdens under OMB control number 0575-0179 that would require approval under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).

Rural Development has reviewed this final rule in accordance with USDA Regulation 4300-4, “Civil Rights Impact Analysis,” to identify any major civil rights impacts the rule might have on program participants on the basis of age, race, color, national origin, sex, disability, marital or familial status. Based on the review and analysis of the rule and all available data, issuance of this final rule is not likely to negatively impact low and moderate-income populations, minority populations, women, Indian tribes, or persons with disability, by virtue of their age, race, color, national origin, sex, disability, or marital or familial status.

Rural Development is committed to the E-Government Act, which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible.

In accordance with Federal civil rights laws and U.S. Department of Agriculture (USDA) civil rights regulations and policies, the USDA, its Mission Areas, agencies, staff offices, employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.

Program information may be made available in languages other than English. Persons with disabilities who require alternative means of communication to obtain program information ( e.g., Braille, large print, audiotape, American Sign Language) should contact the responsible Mission Area, agency, or staff office; the USDA TARGET Center at (202) 720-2600 (voice and TTY); or the Federal Relay Service at (800) 877-8339.

To file a program discrimination complaint, a complainant should complete a Form AD-3027, USDA Program Discrimination Complaint Form, which can be obtained online at https://www.ocio.usda.gov/document/ad-3027, from any USDA office, by calling (866) 632-9992, or by writing a letter addressed to USDA. The letter must contain the complainant's name, address, telephone number, and a written description of the alleged discriminatory action in sufficient detail to inform the Assistant Secretary for Civil Rights (ASCR) about the nature and date of an alleged civil rights violation. The completed AD-3027 form or letter must be submitted to USDA by:

(1) Mail: U.S. Department of Agriculture, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW, Washington, DC 20250-9410; or

(2) Fax: (833) 256-1665 or (202) 690-7442; or

(3) Email: Program.Intake@usda.gov .

USDA is an equal opportunity provider, employer, and lender.

For the reasons discussed in the preamble, the Agency is proposing to amend 7 CFR part 3555 as follows:

To comply with the Do-Not-Call Registry Fee Extension Act of 2007 (15 U.S.C. 6152) (the “Act”), the Commission is amending the TSR by updating the fees entities are charged for accessing the Registry as follows: the revised rule increases the annual fee for access to the Registry for each area code of data from $69 to $75 per area code; and increases the maximum amount that will be charged to any single entity for accessing area codes of data from $19,017 to $20,740. Entities may add area codes during the second six months of their annual subscription period and the fee for those additional area codes increases from $35 to $38.

These increases are in accordance with the Act, which specifies that beginning after fiscal year 2009, the dollar amounts charged shall be increased by an amount equal to the amounts specified in the Act, multiplied by the percentage (if any) by which the average of the monthly consumer price index (for all urban consumers published by the Department of Labor) (“CPI”) for the most recently ended 12-month period ending on June 30 exceeds the CPI for the 12-month period ending June 30, 2008. The Act also states any increase shall be rounded to the nearest dollar and there shall be no increase in the dollar amounts if the change in the CPI since the last fee increase is less than one percent. For fiscal year 2009, the Act specified that the original annual fee for access to the Registry for each area code of data was $54 per area code, or $27 per area code of data during the second six months of an entity's annual subscription period, and that the maximum amount that would be charged to any single entity for accessing area codes of data would be $14,850.

The determination whether a fee change is required and the amount of the fee change involves a two-step process. First, to determine whether a fee change is required, we measure the change in the CPI from the time of the previous increase in fees. There was an increase in the fees for fiscal year 2022. Accordingly, we calculated the change in the CPI since last year, and the increase was 9.10 percent. Because this change is over the one percent threshold, the fees will change for fiscal year 2023.

Second, to determine how much the fees should increase this fiscal year, we use the calculation specified by the Act set forth above: the percentage change in the baseline CPI applied to the original fees for fiscal year 2009. The average value of the CPI for July 1, 2007, to June 30, 2008y, was 211.702; the average value for July 1, 2021, to June 30, 2022, was 296.311, an increase of 39.97 percent. Applying the 39.97 percent increase to the base amount from fiscal year 2009 leads to a $75 fee for access to a single area code of data for a full year for fiscal year 2023, an increase of $6 from last year. The actual amount is $75.42 but when rounded, pursuant to the Act, $75 is the appropriate fee. The fee for accessing an additional area code for a half year increases by three dollars to $38 (rounded from $37.71). The maximum amount charged increases to $20,740 (rounded from $20,739.95).

Administrative Procedure Act; Regulatory Flexibility Act; Paperwork Reduction Act. The revisions to the Fee Rule are technical in nature and merely incorporate statutory changes to the TSR. These statutory changes have been adopted without change or interpretation, making public comment unnecessary. Therefore, the Commission has determined that the notice and comment requirements of the Administrative Procedure Act do not apply. See 5 U.S.C. 553(b). For this reason, the requirements of the Regulatory Flexibility Act also do not apply. See 5 U.S.C. 603, 604.

Pursuant to the Paperwork Reduction Act, 44 U.S.C. 3501-3521, the Office of Management and Budget (“OMB”) approved the information collection requirements in the Amended TSR and assigned the following existing OMB Control Number: 3084-0169. The amendments outlined in this Final Rule pertain only to the fee provision (§ 310.8) of the Amended TSR and will not establish or alter any record keeping, reporting, or third-party disclosure requirements elsewhere in the Amended TSR.

Accordingly, the Federal Trade Commission amends part 310 of title 16 of the Code of Federal Regulations as follows:

This rule amends the regulation identifying categories of nonimmigrants who may be issued nonimmigrant visas in the United States, by adding a limited category of nonimmigrants who are born in the United States, but not subject to the jurisdiction thereof, as they were born to certain nonimmigrants maintaining A-1, A-2, C-2, C-3, G-1, G-3, G-4, or NATO status and properly classifiable as such.

Prior to this amendment, the regulation identifying categories of noncitizens authorized to obtain diplomatic nonimmigrant visas in the United States limited issuance to noncitizens “currently maintaining status” and “properly classifiable” in the A, C-2, C-3, G, or NATO nonimmigrant visa categories, and required that the noncitizens have evidence that they have “been lawfully admitted in that status or have, after admission, had their classification changed to that status” and their “period of authorized stay in the United Sates in that status has not yet expired.” 22 CFR 41.111(b)(1). The Department of State determines whether a noncitizen is maintaining A or G status, the most common visa categories impacted for purposes of the present rule. (See e.g., 8 CFR 214.2(a)(1) and (g)(1), which provide that A and G nonimmigrants are admitted to the United States by the Department of Homeland Security for the “duration of the period for which the alien continues to be recognized by the Secretary of State as being entitled to that status.”) Noncitizens previously admitted to the United States who are seeking domestic visa issuance satisfy the requirement, set out in the amended regulation, that they have been “admitted [to the United States] in [A, C, G, or NATO] status” or have “had their classification changed to [A, C, G, or NATO] status” by providing documentation from the Department of Homeland Security, such as an I-94.

Children born in the United States to parents maintaining certain A or G nonimmigrant status and benefiting from diplomatic agent level immunities are not considered born subject to the jurisdiction of the United States and therefore do not acquire U.S. citizenship at birth under the Fourteenth Amendment. While not common, certain children born to parents in C-2, C-3 and NATO status also may not acquire U.S. citizenship at birth. This limited group of children would therefore be present in the United States without any documentation of their A, C-2, C-3, G or NATO nonimmigrant status. The Department's policy is that such children should be issued documentation of their A, C-2, C-3, G or NATO nonimmigrant status, as provided for by law for derivatives of the principal nonimmigrant. This amendment will codify existing policy permitting diplomatic visa issuance in the United States to this limited group of children, whose parents and other family members already are covered by the regulation describing issuance of diplomatic visas in the United States. This procedure is consistent with Department of State accreditation policy, which requires that derivative family members of those in A and G status possess a valid A or G visa.

In this rulemaking, the other categories of noncitizens eligible for visa issuance in the United States remain unchanged.

This rule is exempt from notice and comment as it involves a foreign affairs function of the United States. 5 U.S.C. 553(a).

An action will fall within the exception if it “clearly and directly” involves a foreign affairs function. Capital Area Immigrants' Rights Coal. v. Trump, 471 F. Supp. 3d 25, 53 (D.D.C. 2020) (“to be covered by the foreign affairs function exception, a rule must clearly and directly involve activities or actions characteristic to the conduct of international relations”). Cases that directly involve the conduct of foreign affairs include rules that regulate foreign diplomats in the United States. E.B. et al. v. Dep't of State, Civil Action 19-2856 at 11 (D.D.C. Feb. 4, 2022); CAIR v. Trump, 471 F. Supp. 3d 25, 54 (D.D.C. 2020). For example, in City of N.Y. v. Permanent Mission of India to the U.N., the Second Circuit found that a State Department Federal Register Notice regarding exemptions from real property taxes imposed by state and local governments validly invoked the foreign affairs exemption because the regulation of “quintessential foreign affairs functions such as diplomatic relations and the regulation of foreign missions [. . .] clearly and directly involves a `foreign affairs function’ ” City of N.Y. v. Permanent Mission of India to the U.N., 618 F.3d 172, 202 (2d Cir. 2010).

This rule governs the issuance of visas to foreign diplomats and their family members in the United States and thus similarly implicates matters of diplomacy directly. It also is about a matter that is likely to have significant reciprocal consequences for the treatment of U.S. diplomatic personnel overseas. In the absence of a rule governing the domestic issuance of visas to the children of foreign mission officials born within the United States, the mission members may be required to travel overseas and apply for a visa for their child before reentering the United States to continue their assignment. These children may also face difficulties in traveling within the United States if they do not possess a valid visa. This rule regulates the treatment of foreign missions to allow for regular diplomatic relations between countries, and directly invokes a foreign affairs function. Requiring foreign mission personnel and their children to travel overseas and apply for a new diplomatic visa similarly invites reciprocal requirements on U.S. diplomatic personnel, significantly affecting the ability of U.S. diplomatic personnel to engage with foreign partners and conduct the work of foreign relations if they must depart the host country to obtain a new visa for the child. The State Department is best positioned to make determinations about such matters of international reciprocity—a point acknowledged by several district courts to justify the foreign affairs exception for rules such as this. See CAIR, 471 F. Supp. 3d at 54 (exempting such rules from notice and comment rulemaking “makes sense” because “in the diplomatic context, agency action may be grounded in international reciprocity”).

Because this final rule is exempt from notice and comment rulemaking under 5 U.S.C. 553, it is exempt from the regulatory flexibility analysis requirements set forth by the Regulatory Flexibility Act (5 U.S.C. 603 and 604). Nonetheless, the Department certifies that this rule will not have a significant economic impact on a substantial number of small entities.

The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532, generally requires agencies to prepare a statement before proposing any rule that may result in an annual expenditure of $100 million or more by State, local, or Tribal governments, or by the private sector. This rule does not require the Department to prepare a statement because it will not result in any such expenditure, nor will it significantly or uniquely affect small governments. This rule involves visas, which involve individuals, and does not affect, state, local, or Tribal governments, or businesses.

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

Executive Orders 13563 and 12866 direct agencies to assess costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributed impacts, and equity). These Executive Orders stress the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Department has examined this rule in light of Executive Order 13563 and has determined that the rulemaking is consistent with the guidance therein. The Department has reviewed this rulemaking to ensure its consistency with the regulatory philosophy and principles set forth in Executive Order 12866. This rule will ensure consistency with U.S. and international law, and the benefits of the clarity will benefit the foreign relations of the United States. There are no anticipated costs to the public associated with this rule. This rule has been forwarded to the Office of Information and Regulatory Affairs and has been designated not significant under Executive Order 12866.

This regulation will not have substantial direct effect on the States, on the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Nor will the rule have federalism implications warranting the application of Executive Orders 12372 and 13132.

The Department has reviewed the rule considering sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

The Department has determined that this rulemaking will not have Tribal implications, will not impose substantial direct compliance costs on Indian Tribal governments, and will not pre-empt Tribal law. Accordingly, the requirements of Section 5 of Executive Order 13175 do not apply to this rulemaking.

This rule does not impose any new reporting or record-keeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.

Accordingly, for the reasons set forth in the preamble, 22 CFR part 41 is amended to read as follows:

On July 19, 2022, the Oregon Symphony notified the Coast Guard that it will be conducting a fireworks display from 9 to 9:30 p.m. on September 3, 2022. The fireworks are to be launched from a barge in the Willamette River between Marquam Bridge and Hawthorne Bridge, Portland, Oregon. In response, on August 3, 2022, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Safety Zone; Firework Event, Willamette River, Portland, OR (87 FR 47659). There we stated why we issued the NPRM and invited comments on our proposed regulatory action related to this fireworks display. During the comment period that ended August 19, 2022, we received no comments.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable and contrary to the public interest because immediate action is needed to protect persons and vessels from the safety hazards associated with the planned fireworks display on September 3, 2022.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Columbia River (COTP) has determined that potential hazards associated with the fireworks to be used in this September 3, 2022 display will be a safety concern for anyone within a 300-yard radius of the barge. The purpose of this rule is to ensure safety of vessels and the navigable waters in the safety zone before, during, and after the scheduled event.

As noted above, we received no comments on our NPRM published August 3, 2022. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.

This rule establishes a safety zone from 8:30 p.m. to 10 p.m. on September 3, 2022. The safety zone covers all navigable waters within a 300-yard radius of a barge in the Willamette River located between the Marquam Bridge and Hawthorne Bridge, Portland, OR. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled 9 p.m. to 9:30 p.m. fireworks display. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the size, location, and duration, of the safety zone. The safety zone created by this rule is designed to minimize its impact on navigable waters. This rule prohibits entry into certain navigable waters of the Willamette River and is not anticipated to exceed two hours in duration. Thus, restrictions on vessel movement within that particular area are expected to be minimal. Moreover, under certain conditions vessels may still transit through the safety zone when permitted by the COTP. The Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone and the rule allows vessels to seek permission to enter the zone.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule affects your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule does not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has 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. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting 1.5 hours that would prohibit entry within 300 yards of a fireworks barge. Normally such actions are categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

On October 9, 2018, the Coast Guard published a temporary interim rule (TIR) establishing a safety zone on the navigable waters within a 50 yard radius from the center of the North Hero-Grand Isle Bridge, on Lake Champlain, VT for the North Hero-Grand Isle Bridge replacement project (83 FR 50503). We received no comments on the published TIR. No public meeting was requested and none was held. Construction on the North Hero-Grand Isle Bridge began in October 2018.

The Coast Guard originally published this rule to be effective, and enforceable, through September 1, 2022, but is extending it to September 1, 2024, to complete all remaining contract operations in and over Lake Champlain, including, but not limited to steel erection, concrete bridge deck placements, installations of navigation lighting, and removal of the original North Hero-Grand Isle Bridge. This rule extends the effective period of the safety zone for two years until September 1, 2024, due to delays of the North Hero-Grand Isle Bridge replacement project.

The Captain of the Port Sector Northern New England (COTP) has determined that the potential hazards associated with the bridge replacement project will be a safety concern for anyone within a 50 yard radius from the center of the North Hero-Grand Isle Bridge, on Lake Champlain, VT. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. If the project is completed prior to September 1, 2024, enforcement of the safety zone will be suspended and notice given via Broadcast Notice to Mariners, Local Notice to Mariners, or both.

The Coast Guard is issuing this temporary interim rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a NPRM with respect to this rule because doing so would be impracticable and contrary to the public interest. The Coast Guard will consider comments in issuing a subsequent temporary interim rule or temporary final rule.

The notice allowing the construction project to proceed and providing updated timelines for the project was only recently finalized and provided to the Coast Guard, which did not give the Coast Guard enough time to publish a NPRM, take public comments, and issue a final rule before the existing regulation expires. Timely action is needed to respond to the potential safety hazards associated with removal of the original bridge and construction of a new replacement bridge. It would be impracticable and contrary to the public interest to publish a NPRM because we must extend the effective period of the safety zone as soon as possible to protect the safety of the waterway users, construction crew, and other personnel associated with the bridge project. A delay of the project to accommodate a full notice and comment period would delay necessary operations, result in increased costs, and delay the completion date of the bridge project and subsequent reopening of the North Hero-Grand Island Bridge for normal operations.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable and contrary to the public interest because timely action is needed to respond to the potential safety hazards associated with the removal of the original bridge and construction of a new replacement bridge. It would be impracticable and contrary to the public interest to publish to delay effectiveness because we must protect the safety of the waterway users, construction crew, and other personnel associated with the bridge project.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The COTP has determined that potential hazards associated with this bridge construction, and removal project that has already commenced, and will continue through September 1, 2024, will be a safety concern for anyone within the work zone. The construction and removal of the bridge continues to be extremely complex and presents many safety hazards including overhead crane operations, overhead cutting operations, potential falling debris, and barges positioned along the length of the bridge. In order to mitigate the inherent risks involved with the removal of a bridge, and installation of the new bridge, it is necessary to control vessel movement through the area. The purpose of this TIR is to ensure the safety of the waterway users, the public, and construction workers for the duration of the new bridge construction and demolition. Heavy-lift operations are sensitive to water movement, and wake from passing vessels could pose significant risk of injury or death to construction workers. In order to minimize such unexpected or uncontrolled movement of water, any expeditous passage. No vessel may stop, moor, anchor, or loiter within the safety zone at any time unless they are working on the bridge construction operations. The rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone during the bridge construction project.

This rule extends the effective period of the temporary interim rule for the navigable waters of Lake Champlain, VT, surrounding the North Hero-Grand Isle bridge for two additional years until September 1, 2024. There are no other changes to the regulatory text of this rule as cited in 33 CFR 165.T01-0682. This rule will continue to prohibit all persons and vessel traffic from the safety zone unless exceptions are authorized by the COTP or a designated representative.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the following reasons: (1) The safety zone only impacts a small designated area of Lake Champlain, (2) the safety zone will only be enforced when work equipment is present in the navigable channel as a result of bridge removal and replacement operations or if there is an emergency, (3) persons or vessels desiring to enter the safety zone may do so with permission from the COTP or a designated representative. The Coast Guard will notify the public of the enforcement of this rule via appropriate means, such as via Local Notice to Mariners and Broadcast Notice to Mariners via marine channel 16 (VHF-FM).

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this proposed rule will not have a significant economic impact on any vessel owner or operator.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has 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. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves involves a temporary safety zone that will prohibit entry within a 50 yard radius from the center of the North Hero-Grand Isle Bridge during its removal and replacement. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A preliminary Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locationg the docket, see the ADDRESSES section of this preamble.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

Submitting comments. We encourage you to submit comments through the Federal Decision Making Portal at https://www.regulations.gov. To do so, go to https://www.regulations.gov, type USCG-2018-0682 in the search box and click “Search.” Next, look for this document in the Search Results column, and click on it. Then click on the Comment option. If you cannot submit your material by using https://www.regulations.gov, call or email the person in the FOR FURTHER INFORMATION CONTACT section of this proposed rule for alternate instructions.

Viewing material in docket. To view documents mentioned in this proposed rule as being available in the docket, find the docket as described in the previous paragraph, and then select “Supporting & Related Material” in the Document Type column. Public comments will also be placed in our online docket and can be viewed by following instructions on the https://www.regulations.gov Frequently Asked Questions web page. We review all comments received, but we will only post comments that address the topic of the proposed rule. We may choose not to post off-topic, inappropriate, or duplicate comments that we receive.

Personal information. We accept anonymous comments. Comments we post to https://www.regulations.gov will include any personal information you have provided. For more about privacy and submissions to the docket in response to this document, see DHS's eRulemaking System of Records notice (85 FR 14226, March 11, 2020).

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

On October 6, 2021, VA published a proposed rule in the Federal Register (86 FR 55547) that would establish VA's statutory authority to implement the Social Security Number Fraud Prevention Act of 2017 (the Act) (Pub L.115-59; 42 U.S.C. 405 note). The public comment period ended on December 6, 2021, and VA received two comments in response to the proposed rule.

One comment supported the proposed rule but inquired if there would be any overlap between the proposed rule and the VA mail management policy (VA Directive and Handbook 6340). VA Directive 6340 broadly states that “VA mail facilities must ensure all mail is handled appropriately to conform to the Freedom of Information Act (FOIA) and/or the Privacy Act.” However, neither the Directive nor VA Handbook 6540 specifically address Public Law 115-59, which is the statutory authority for promulgating the proposed rule. There is no statutory overlap between VA mail management policy and the proposed rule at present (although VA may eventually update VA Directive and Handbook 6340 to reflect the final rule). For this reason, VA will make no changes to the rulemaking based on this comment.

One comment suggested that there should be an “opt in” option for “older Veterans who rely on paperwork from the VA that has their SSN on it for different matters” so that older Veterans could continue to receive mail with their SSN on it. The proposed rule includes the addition of sections to 38 CFR 1.575 that would enable VA to truncate SSNs for outgoing mail where it is not possible to eliminate the SSN (such as in the case of older Veterans whose case number contains their SSNs). This provision would address the concerns of providing smooth, continuous service better than placing the burden on older Veterans to specifically “opt in” to continue to receive mail with their SSN on it. For this reason, VA will make no changes to the rulemaking based on this comment.

Accordingly, the proposed rule is adopted as a final rule without change.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. The Office of Information and Regulatory Affairs has determined that this rule is not a significant regulatory action under Executive Order 12866. The Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at www.regulations.gov.

The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-612). The factual basis for this certification is that the regulation only governs the circumstances under which the Department includes SSNs in mail issued by the Department. The behavior of small entities is not addressed in the regulation and is therefore not impacted. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This final rule will have no such effect on State, local, and tribal governments, or on the private sector.

This final rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

There are no Assistance Listing numbers and titles for this rule.

Denis McDonough, Secretary of Veterans Affairs, approved this document on August 25, 2022, and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs.

For the reasons stated in the preamble, the Department of Veterans Affairs amends 38 CFR 1.575, as set forth below:

On May 25, 2022 (87 FR 31798), EPA published a notice of proposed rulemaking (NPRM) addressing NO X emissions from coal-fired power plants in the Commonwealth of Pennsylvania. In the NPRM, EPA proposed a FIP in order to address the CAA's RACT requirements under the 1997 and 2008 ozone NAAQS for large, coal-fired EGUs equipped with SCR in Pennsylvania. As discussed in the NPRM, the FIP was proposed as an outgrowth of a decision by the United States Court of Appeals for the Third Circuit (“the Court”), which vacated and remanded to EPA a portion of our prior approval of Pennsylvania's “RACT II” rule which applied to the same universe of sources. See 87 FR 31798; 31799-39802.

The Court directed that “[o]n remand, the agency must either approve a revised, compliant SIP within two years or formulate a new Federal implementation plan.” Sierra Club v. EPA, 972 F.3d 290, 309 (3rd Circuit 2020) (“Sierra Club”). On September 15, 2021, EPA proposed disapproval of those portions of the prior approval which were vacated by the Court. See 86 FR 51315. EPA took final action to disapprove the vacated portions of our prior approval. 87 FR 50257, August 16, 2022. EPA is now finalizing a FIP to fulfill the Court's order.

The collection of sources addressed by the RACT analysis in this FIP has been determined by the scope of the Third Circuit's order in the Sierra Club case and EPA's subsequent disapproval action. Herein, EPA is finalizing RACT control requirements for the four facilities that remain open and active that were subject to the SIP provision that the Court vacated EPA's approval of and that EPA thereafter disapproved: Conemaugh, Homer City, Keystone, and Montour. EPA's prior approval action and the Court's decision related to source-specific RACT determinations for the Cheswick, Conemaugh, Homer City, Keystone, and Montour generating stations. The Bruce Mansfield and Cheswick facilities ceased operation, so there is no longer a need to address RACT requirements for those facilities, so are not at included in this final action. Accordingly, there are a total of nine affected EGUs/units at four facilities in this action: three at Homer City and two each at Conemaugh, Keystone and Montour.

The Pennsylvania Department of Environmental Protection (PADEP) undertook efforts to develop a SIP revision addressing the deficiencies identified by the Third Circuit in the Sierra Club decision. PADEP proceeded to develop source specific (“case-by-case”) RACT determinations for the generating stations at issue. By April 1, 2021, each of the facilities had submitted permit applications to PADEP with alternative RACT proposals in accordance with 25 Pa. Code 129.99. Subsequently, PADEP issued technical deficiency notices to obtain more information needed to support the facilities' proposed RACT determinations. Although additional information was provided in response to these notices, PADEP determined the proposals to be insufficient and began developing its own RACT determination for each facility. The outcome of this process was PADEP's issuance of draft permits for each facility, which were developed with the intention of submitting each case-by-case RACT permit to be incorporated as a federally enforceable revision to the Pennsylvania SIP. Each draft permit underwent a 30-day public comment period, 1 during which EPA provided source-specific comments to PADEP for each permit. On May 26, 2022, PADEP submitted case-by-case RACT determinations for Keystone, Conemaugh, and Homer City as a revision to the Pennsylvania SIP. On June 9, 2022, PADEP submitted a case-by-case RACT determination for Montour as a revision to the Pennsylvania SIP. EPA has not yet fully evaluated those submittals and they are outside of the scope of this action. Any action on those proposed SIP revisions will be at a later date and under a separate action.

This section presents a summary of the basis for the final FIP. The overall basis for the proposal was explained in detail in the NPRM. The overall basis is largely unchanged from proposal, though as explained in the responses to comments and section IV of this document on the final limits, some adjustments were made to the resulting limits. For more detail on what was proposed, please refer to the May 25, 2022 proposal publication (87 FR 31798).

The basis for the final rule begins with the RACT definition. As discussed in the NPRM, RACT is not defined in the CAA. However, EPA's longstanding definition of RACT is “the lowest emission limit that a particular source is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility.”  2 The Third Circuit decision “assume[d] without deciding” that EPA's definition of RACT is correct. Sierra Club at 294. EPA is using its longstanding definition of RACT to establish the limits in this FIP.

The EPA proposed that RACT limits in this FIP will apply throughout the year. As discussed further in Section III of this preamble in response to comments on this issue, the EPA is retaining year-round limits because the limits herein are technologically and economically feasible during the entire year. While other regulatory controls for ozone, such as the Cross State Air Pollution Rule (CSAPR) and its updates, may apply during a defined ozone season, the RACT limits finalized herein do not authorize seasonal exemptions based on atmospheric conditions or other factors. As explained, this action is being finalized to meet the statutory requirement to implement RACT in accordance with sections 182 and 184 of the Clean Air Act. Implementation of RACT, and the definition of what is RACT, is not constrained by the ozone season or atmospheric consideration. Therefore, the limits finalized here apply throughout the year since the RACT emissions rates are technologically and economically feasible year-round. To the degree that the EPA analyses underlying the RACT emissions limits here rely on past performance data, those calculations typically use ozone season data. This is because ozone season data generally represent the time period over which the NO X emissions rate performance of these units is the best. Put another way, the ozone season data for the facilities subject to these limits are a reliable indicator of what is technologically and economically feasible for these facilities, and EPA has no reason to believe that achieving the same performance outside the ozone season would be technologically or economically infeasible. As explained further in the next section, no commenters presented compelling evidence to change EPA's conclusion on this point.

The EPA proposed to develop the FIP limits using a weighted rate approach, and is retaining that overall approach here. EPA received significant comments both for and against such an approach, which are discussed in detail in the next section. Overall, upon consideration of these comments, the EPA's judgment is that this approach is still the best approach for addressing the Court decision and addressing SCR operation during EGU cycling (the operation of EGUs turning on and off or operating at varying loads levels based on electric demand). As we discussed extensively at proposal, the cycling of units, combined with the role of flue gas temperature in SCR performance, prompted EPA to consider how best to establish RACT limits that address the Third Circuit's concerns about allowing less stringent limits when flue gas temperatures went below what it considered to be an arbitrary temperature threshold. This is a challenging factor to consider in cases when the operating temperature varies, and when the units spend some time at temperatures where SCR is very effective, and some time at temperatures where it is not.

At proposal, EPA provided an assessment of whether the units in this FIP exhibit a pattern of cycling between temperatures where SCR is effective and where it is not. EPA evaluated years of data submitted by these sources to EPA to characterize their variability in hours of operation or level of operation. 3 In particular, EPA used this information to identify whether, or to what degree, the EGUs have shifted from being “baseload” units ( i.e., a steady-state heat input rate generally within SCR optimal temperature range) to “cycling” units ( i.e., variable heat input rates, possibly including periods below the SCR optimal temperature range). All of these EGUs were designed and built as baseload units, meaning the boilers were designed to be operated at levels of heat input near their design capacity 24 hours per day, seven days per week, for much of the year. As a result, the SCRs installed in the early 2000s were designed and built to work in tandem with a baseload boiler. 4 In particular, the SCR catalyst and the reagent injection controls were designed for the consistently higher flue gas temperatures created by baseload boiler operation. In more recent years, for multiple reasons, these old, coal-fired baseload units have struggled to remain competitive when bidding into the PJM Interconnection (PJM) electricity market. 5 Nationally, total electric generation has generally remained consistent, but between 2010 and 2020, generation at coal-fired utilities has declined by 68%. 6 As a result, many of these units more recently have tended to cycle between high heat inputs, when electricity demand is high, and lower heat inputs or complete shutdowns, when demand is low, sometimes on a daily basis. This cycling behavior can affect the ability of the EGUs to operate their SCRs because at lower heat inputs the temperature of the flue gas can drop below the operating temperature for which the SCR was designed. 7 Nothing in the comments undermined EPA's basic conclusion that this cycling pattern is occurring. Accordingly, the final rule establishes limits that account for the technical limits on SCR operation that can result from this cycling behavior.

In the proposal, we also noted that in RACT II, PADEP attempted to address this cycling behavior by creating tiered emissions limits for different modes of operation based on the flue gas temperature, which its RACT II rule expressed as a transition from the 0.12 pounds of NO X per million British thermal units (lb/MMBtu) rate to much less stringent rates (between 0.35 and 0.4 lb/MMBtu, depending on the type of boiler) based on a temperature cutoff of 600 degrees, with the less stringent rate essentially representing a “SCR-off” mode ( i.e., an emission limit applicable at times when the SCR has been idled or bypassed and is not actively removing NO X ). The Third Circuit rejected this approach because the selection of the cutoff temperature was not sufficiently supported by the record. The Third Circuit decision also questioned the need for the less stringent rates, noting that nearby states do not have different emission rates based on inlet temperatures. EPA considered the Court's concerns as well as input received during the public comment period expressing both support for, and opposition to, a tiered limit. We also considered the practical and policy implications in structuring a tiered limit for these cycling EGUs based on operating temperature. EPA has decided to retain the proposed weighted approach instead of trying to develop a tiered limit. As noted at proposal, the effectiveness of SCR does not drop to zero at a single temperature point and defining the minimum reasonable temperature range to begin reducing SCR operation for the purposes of creating an enforceable RACT limit is a highly technical, unit-specific determination that depends on several varying factors. 8 We noted the complexity and detailed information necessary to produce a justified and enforceable tiered limit that represents RACT and addresses the Court's concerns about the basis and enforceability of the tiers, and as explained further in the next section, none of the comments, including those supporting the tiered limit, provided sufficient basis for EPA to change its approach.

In the proposal, EPA expressed an additional concern about addressing cycling operation through a tiered RACT limit based on operating temperature, which is that it would create an incentive for a source to cycle to temperatures where SCR is not required, in order to avoid SCR operating costs and potentially gain a competitive advantage. In the case of the Pennsylvania limits addressed by the Third Circuit's decision, there was no limit on how much time the units could spend in SCR-off mode. In section C of the TSD for the proposed action, 9 EPA shows that over the last decade, some affected sources have varied the gross load level to which they cycle down, hovering either just above or just below the threshold at which the SCR can likely operate effectively. Depending on the unit, this slight change in electricity output could significantly affect SCR operation and the resulting emissions output. Though instances of cycling below SCR thresholds occurred in some cases prior to the implementation of Pennsylvania's tiered RACT limit and thus the limit may not be the sole driver of the behavior following its implementation, the tiered limit certainly allows this behavior to occur. While EPA acknowledges the need for EGUs to operate at times in modes where SCR cannot operate, EPA believes its RACT limit should minimize incentives to do that, and a tiered rate structure that effectively has no limit on SCR-off operation tends to do the opposite. We received significant comments on this concern, which are addressed in the response to comments section. EPA remains concerned about essentially unlimited SCR-off operation, and continues to believe that this is a key reason to retain the weighted rate approach over a tiered approach.

On the other hand, EPA also expressed concerns in the proposal about a RACT limit that treats these EGUs as always operating as baseload units by imposing a NO X emission rate that applies at all times but can technically be achieved only if the boiler is operating at high loads. Recent data indicate that these units are not operating as baseload units and are not likely to do so in the future. 10 Selecting the best baseload rate (the rate reflecting SCR operation in the optimal temperature range) and applying that rate at all times does not account for, and could essentially prohibit, some cycling operation of these units. Cycling has become more common at coal-fired EGUs because they are increasingly outcompeted for baseload power. In the past, these units were among the cheapest sources of electricity and would often run close to maximum capacity. Other EGUs can now generate electricity at lower costs than the coal-fired units. 11 Thus, the coal-fired units now cycle to lower loads during hours with relatively low system demand (often overnight and especially during the spring and fall “shoulder” seasons when space heating and cooling demand is minimized) when their power is more expensive than the marginal supply to meet lower load levels. Hence, they cycle up and down as load- and demand-driven power prices rise and fall, and they operate when the price meets or exceeds their cost to supply power. EPA acknowledges that cycling down to a SCR-off mode may sometimes happen, for example, when electricity demand drops unexpectedly, and other units provide the power at a lower cost. The consideration of the technical and economic feasibility of a given RACT limit should reflect, to the extent possible, consideration of the past, current, and future expected operating environment of a given unit. In electing to finalize its weighted rate approach, EPA considered these feasibility issues to establish a rate for each unit that reflects a reasonable level of load-following (cycling) ( e.g., a level consistent with similar SCR-equipped units) but that also accounts for the lower historic NO X rates that these units have achieved. While the comments generally affirmed that a weighted rate could be structured to address cycling, we did receive comments on the appropriate considerations in choosing the final rates, which are responded to later in this notice.

As discussed in the NPRM, in order to address the concerns discussed previously in this section about how to determine RACT for EGUs that cycle, EPA proposed to express the RACT NO X limits for these units using a weighted rate limit. The weighted rate incorporates both a lower “SCR-on” limit and a higher “SCR-off” limit. Through assignment of weights to these two limits based on the proportion of operation in SCR-on and SCR-off modes during a historical period that encompasses the range of recent operation, the SCR-on and SCR-off limits are combined into a single RACT limit that applies at all times. The weight given to the proposed SCR-off limit (established as described later in this section) has the effect of limiting the portion of time a cycling source can operate in SCR-off mode and incentivizes a source to shift to SCR-on mode to preserve headroom under the limit. While driving SCR operation, the weighted limit accommodates the need for an EGU to occasionally cycle down to loads below which the SCR can operate effectively and does not prohibit SCR-off operation or dictate specific times when it must not occur. In this way, this approach avoids the difficulty of precisely establishing the minimum temperature point at which the SCR-off mode is triggered, effectively acknowledging the more gradual nature of the transition between modes where SCR is or is not effective. Finally, it is readily enforceable through existing Continuous Emission Monitoring Systems (CEMS), without the need for development of recordkeeping for additional parameters that define the SCR-off mode. The approach is described in more detail below.

As a starting point for developing the proposed weighted rates for each unit, EPA examined data related to the threshold at which these facilities can effectively operate their SCR. Then, EPA calculated both SCR-on and SCR-off rates using historic ozone season operating data for the unit to determine when the SCR was likely running and when it was likely not running, and then established rates based again on historic operating data that represent the lowest emission limit that the source is capable of meeting when the SCR is running and when it is not. EPA did this by using the estimated minimum SCR operation threshold as described in the proposed action, and then calculating average SCR-on and SCR-off rates for each unit based on historic ozone season operating data for that unit, when available, from 2003 to 2021. For more detail on the development of the proposed rates, see section D of the TSD for the proposed action. In particular, section D.1 addresses the proposed threshold analysis. The SCR-on rate is an average of all hours in which the SCR was likely running (operating above the threshold at which it can run the SCR with an hourly NO X emission rate below 0.2 lb/MMBtu) during each unit's third-best ozone season from the period 2003 to 2021. The third-best ozone season was identified based on the unit's overall average NO X emission rate during each ozone season from 2003 to 2021. This time period captures all years of SCR operation for each facility, though Conemaugh only installed SCR in late 2014. EPA included all these years of data in developing the proposed as well as the final limits because the Agency did not identify, and commenters did not provide, a compelling reason to exclude any of the years. This is in line with the Third Circuit's decision, which questioned EPA's review of only certain years of emissions data for these sources in determining whether to approve Pennsylvania's RACT II NO X emission rate for these EGUs. The use of the third-best year accounts for degradation of control equipment over time, and it avoids biasing the limit with uncharacteristically low emitting days, or under uncharacteristically optimal operating conditions. EPA similarly used a third-best ozone season approach for the Revised CSAPR Update (86 FR 23054, April 30, 2021) (RCU) and the proposed Good Neighbor Plan for the 2015 Ozone NAAQS (87 FR 20036, April 6, 2022) (Good Neighbor Plan). The “SCR-off” rate used to develop the proposal is an average of all hours in which the unit's SCR was likely not running (operating below the threshold at which it can run the SCR with an hourly NO X rate above 0.2 lb/MMBtu) during all ozone seasons from 2003-2021 (except for Conemaugh). All ozone seasons in the time period were used in order to increase the sample size of this subset of the data, as an individual ozone season likely contains significantly fewer data points of non-SCR operation.

EPA then calculated the SCR-on and SCR-off “weights,” which represent the amount of heat input spent above (SCR-on) or below (SCR-off) the SCR threshold, for each EGU. For the weights used at the proposal stage, EPA evaluated data from the 2011 to 2021 ozone seasons and selected the year in which the EGU had its third highest proportion of heat input spent above the SCR threshold during this time period, using that year's weight (the “third-best weight”) together with the SCR-on/SCR-off rates described previously to calculate the weighted rate. The years 2011-2021 were analyzed for purposes of the proposal because they likely are representative of the time period that encompasses the years when the units began to exhibit a greater cycling pattern, and it is reasonable to expect that this pattern will continue for the foreseeable future.

Using these data, EPA proposed emissions limitations based on the following equation:

Using this equation, EPA proposed the NO X emission limits listed in Table 1, based on a 30-day rolling average:

EPA solicited comment on the proposed facility-wide average rate limits, as well as the low and high range of potential limits. The limits are calculated as a 30-day rolling average, and apply at all times, including during operations when exhaust gas temperatures at the SCR inlet are too low for the SCR to operate, or operate optimally. For facilities with more than one unit, EPA proposed to allow facility-wide averaging for compliance, but proposed that the average limit be based on the weighted rate achieved by the best performing unit. A 30-day average “smooths” operational variability by averaging the current value with the prior values over a rolling 30-day period to determine compliance. While some period of lb/MMBtu values over the compliance rate can occur without triggering a violation, they must be offset by corresponding periods where the lb/MMBtu rate is lower than the compliance rate ( i.e., the 30-day rolling average rate). EPA is retaining its proposed overall approach to developing these limits, but for reasons discussed in Section III of this preamble, EPA is changing the way the rate calculation is done for facilities with more than one unit, and is making additional adjustments to the rate calculation in response to technical information received. These changes result in some changes to the final rates, which are discussed in section IV of this preamble.

EPA also proposed a unit-specific daily NO X mass emission limit ( i.e., lb/day) to complement the weighted facility-wide 30-day NO X emission rate limit and further ensure RACT is applied continuously. High emissions days are a concern, given the 8-hour averaging time of the underlying 1997 and 2008 ozone NAAQS. The proposed daily NO X mass emission limit was calculated by multiplying the proposed facility-wide 30-day rolling average NO X emission limit (in lb/MMBtu) by each unit's heat input maximum permitted rate capacity (in MMBtu/hr) by 24 hours. While the 30-day average rate limit ensures that SCR is operated where feasible while reasonably accounting for cycling, EPA is concerned that units meeting this limit might still occasionally have higher daily mass emissions on one or more days where no or limited SCR operation occurs, which could trigger exceedances of the ozone NAAQS if these high mass emissions occur on days conducive to ozone formation, such as especially hot summer days. EPA proposed a daily mass limit that would govern over a full 24-hr, calendar day basis as an additional constraint on SCR-off operation within a single day. The proposed limit was designed to provide for some boiler operation without using the SCR, which may be unavoidable during part of any given day, but also to constrain such operation because the mass limit will necessitate SCR operation (for example by raising heat input to a level where the SCR can operate) if the unit is to continue to operate while remaining below this limit. This provides greater consistency with the RACT definition. Table 2 shows the unit-specific daily NO X mass limits that were proposed in the NPRM.

EPA solicited comment on the proposed daily mass limits. As discussed in more detail in section III of this preamble, EPA considered the comments received and made some changes to the final limits. The final limits are discussed in section IV of this preamble.

EPA received 10 sets of comments on our May 25, 2022 proposed FIP. A summary of the comments and EPA's response is provided herein. All comments received are included in the docket for this action.

Comment: Allegheny County Health Department (ACHD) submitted a comment clarifying the operating status of the Cheswick Generating Station.

Response: EPA acknowledges the comment provided by ACHD. In our NPRM, EPA described Cheswick as being in the process of closing, despite ACHD having issued a title V permit modification that included a provision requiring Boiler #1 to cease operations on April 1, 2022. While that deadline had come and gone by the time the NPRM was published, it was not entirely clear at the time of drafting the notice that the closure was permanent and enforceable. ACHD's comment addressed EPA's characterization of Cheswick's status in the NPRM and affirmed that ACHD has verified that Cheswick's main boiler and associated equipment have been permanently shut down. In the intervening months since the NPRM, EPA has confirmed, with assistance from ACHD, that the boiler has in fact ceased operating, and that Cheswick's title V operating permit has been terminated. Therefore, EPA finds that the closure is permanent and enforceable, and as such, is not finalizing any RACT limits for Cheswick as proposed in our NPRM.

Comment: Commenters assert that EPA must take action on PADEP's May 26, 2022 and June 9, 2022 SIP submittals, which included Pennsylvania's own source specific RACT determinations, and which were intended to address the deficiencies identified by the Third Circuit, prior to (or concurrently with) promulgating a FIP.

Response: Although EPA generally pursues a “state first” approach to air quality management, giving deference to states to determine the best strategy for addressing air quality concerns within their boundaries in the first instance, EPA does not agree with the commenters' assertion that EPA must act on PADEP's RACT SIP submittals prior to or concurrently with finalizing a FIP. On September 15, 2021, EPA proposed to disapprove those portions of Pennsylvania's May 16, 2016 SIP upon which EPA's prior approval had been vacated and remanded by the Third Circuit, and that are encompassed in this FIP action. 86 FR 51315. EPA recently finalized that disapproval. 87 FR 50257. CAA section 110(c)(1)(B) requires the Administrator to “promulgate a Federal implementation plan at any time within 2 years after the Administrator disapproves a State implementation plan submission in whole or in part, unless the State corrects the deficiency and the Administrator approves the plan or plan revision, before the Administrator promulgates such Federal implementation plan” (emphasis added). Following EPA's August 16, 2022 (87 FR 50257) final disapproval, EPA has authority to promulgate a FIP under CAA section 110(c) at any time because EPA has not approved a plan or plan revision from Pennsylvania correcting the deficiency. Nothing in the Clean Air Act requires EPA to act upon a SIP submitted by a state to address a deficiency identified in EPA's final disapproval prior to promulgating a FIP, and the commenters have not provided any statutory basis for such a position.

As explained in the NPRM for this action, EPA may promulgate a FIP contemporaneously with or immediately following the predicate final disapproval action on a SIP (or finding that no SIP was submitted). EPA v. EME Homer City Generation, L.P., 572 U.S. 489, 509 (2014) (“EPA is not obliged to wait two years or postpone its action even a single day: The Act empowers the Agency to promulgate a FIP `at any time' within the two-year limit”) (internal citations omitted). In order to provide for this, it cannot be true that EPA must take further action on SIP submittals from the state prior to undertaking rulemaking for a FIP. The practical effect of applying the procedure commenters allege, that EPA must consider a new SIP submittal from the state prior to promulgating a FIP, would be that EPA would either approve the state's new SIP revision (thereby nullifying the need for a FIP) or EPA would disapprove the state's new SIP revision, which would essentially require a double disapproval from EPA in such circumstances. This cannot be understood to be Congress's intent. When considering a similar question, the Federal Court of Appeals for the Tenth Circuit agreed with the interpretation EPA here states. Specifically, the Tenth Circuit stated: “The statute itself makes clear that the mere filing of a SIP by Oklahoma does not relieve the EPA of its duty. And the petitioners do not point to any language that requires the EPA to delay its promulgation of a FIP until it rules on a proposed SIP. As the EPA points out, such a rule would essentially nullify any time limits the EPA placed on states. States could forestall the promulgation of a FIP by submitting one inadequate SIP after another.” Oklahoma v. EPA, 723 F.3d 1201, 1223 (10th Cir. 2013) (emphasis in original).

EPA has not fully evaluated Pennsylvania's May 26 and June 9, 2022 submittals and has not yet proposed action on the SIP submittals. As explained, this does not alter EPA's authority to finalize this action promulgating a FIP. EPA intends to evaluate and take action on Pennsylvania's submittal in accordance with the timelines established in CAA section 110(k)(2). However, as noted in the NPRM, EPA submitted extensive comments on the draft permits. In those comments, EPA raised several concerns that remain unresolved, including whether Pennsylvania's continued use of tiered limits ( i.e., separate limits for SCR-on and SCR-off operation) could be squared with the Court's clear objection to our approval of such an approach in the past, and whether Pennsylvania's record was adequate to support the limits selected, the need for separate limits, and how to determine when each limit applied.

Comment: Several commenters asserted that EPA erred in the selection of SCR as RACT. PADEP asserts that EPA's proposal does not provide a source specific analysis of technological feasibility for each unit, and that it does not identify any specific control technology or technique as being technically feasible. They claim that EPA's approach fails to comport with previous RACT approaches. Keystone/Conemaugh (Key-Con) suggests that EPA overlooked the technical and economic circumstances of the individual sources in determining RACT. Additionally, one commenter, Talen Energy, alleged that EPA should have selected feasible controls that “represent RACT for each mode of operation of the units, such as startup and shutdown.”

Response: EPA disagrees with those comments suggesting that EPA's FIP proposal did not follow the long-standing definition of RACT. Courts have repeatedly concluded that the term “reasonably available” is ambiguous and therefore the statute does not specify which emission controls must be considered “reasonably available.” See, e.g., Natural Resources Defense Council v. EPA, 571 F.3d 1245, 1252 (D.C. Cir. 2009) (stating “the term `reasonably available' within RACT is also ambiguous” and “[g]iven this ambiguity, the EPA has discretion reasonably to define the controls that will demonstrate compliance”). See also, Sierra Club v. EPA, 294 F.3d 155, 162-63 (D.C. Cir. 2002) (finding that the term “reasonably available” in the analogous “reasonably available control measure” is ambiguous and “clearly bespeaks [the Congress's] intention that the EPA exercise discretion in determining which control measures must be implemented”). As stated in the proposal, EPA's longstanding interpretation is that RACT is defined as “the lowest emission limitation that a particular source is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility.”  15 Commenters correctly note that EPA has further explained that “RACT for a particular source is determined on a case-by-case basis, considering the technological and economic circumstances of the individual source.”  16

EPA's action is in line with this longstanding guidance and other Agency actions concerning RACT under section 182 of the Clean Air Act. For each source, the EPA first selected a control technology that is reasonably available, considering technical and economic feasibility, and then identified the lowest emissions limitation that, in EPA's judgment, the particular source is capable of meeting by application of the technology ( i.e., that a plant operator applying the selected technology is capable of achieving economically and technologically). With respect to the first step, for this set of sources EPA selected SCR as the control technology that is reasonably available. For each of the sources addressed in this final rule, SCR has already been installed and each SCR has a clearly demonstrated operating history. Most of the sources installed these SCRs in the early 2000s, with the exception being Conemaugh, which only installed SCR in 2014. These facts alone prove that SCR is a control technology that is reasonably available for these sources. In the prior EPA-approved PADEP SIP revision, SCR was selected as the control technology and that selection was not disputed in comments on the action or in the subsequent litigation, to which this FIP is a response. Additionally, no one raised concerns about whether SCR was the appropriate control technology when EPA initially proposed approval of PADEP's RACT regulations, nor did anyone raise such concerns at the State level when PADEP undertook notice and comment rulemaking in order to adopt the regulation in the first place. To the extent that the commenters are challenging EPA's judgment in choosing the emission limit that each source is “capable of meeting,” those comments are addressed later in this section. However, if the commenters are asserting that EPA has selected a technology that is not “reasonably available considering technological and economic feasibility,” the EPA disagrees based on the fact that SCRs are present and operating at each of these sources.

Regarding the comment that EPA should select RACT limits for each mode of operation of the SCR, including startup and shutdown, the proposed FIP accounts for this. Given that these sources already have installed and operational SCRs, EPA determined it was appropriate to consider modes of operation, as applicable, during the selection of the emission limitation, rather than during the control technology selection. Indeed, EPA's proposed statistical approach to develop the rates is intended to select emissions limits that reasonably account for different modes, including consideration of modes where the selected RACT cannot be operated. As discussed in a comment response later in this document, EPA considered whether it was appropriate to create a tiered limit approach that also accounted for different modes in the different tiers, but as explained here and in the proposal, were EPA to define a mode where the chosen RACT technology need not operate but also fail to provide constraints on the use of that mode, that would essentially create an exemption from operating RACT when the source is clearly capable of meeting a lower rate, and would thereby create a regulatory incentive to operate at loads where the SCR is not in operation.

Comment: PADEP claims that it is inconsistent with RACT to use a statistical approach for the selection of emissions limits. Key-Con similarly claims that routine data are insufficient for a RACT analysis.

Response: As an initial matter, EPA affirms that a statistical approach is a valid way to select the lowest emissions limit that the source is capable of meeting through application of SCR. As explained in the response to the prior comment, once a technology is selected that is “reasonably available considering technological and economic feasibility,” the second step is selection of the emission limit that a plant operator applying the selected technology is economically and technologically capable of achieving. In order to select the emission limitation, EPA did an extensive statistical analysis of emissions data from the affected facilities. The rationale underlying that approach is outlined in significant detail in our proposal.

EPA does not always have the benefit of a robust historic data set that reflects actual operation of the selected control technology to consider in selecting emission limits for purposes of establishing RACT. When, as is the case here, we do have such data, it is reasonable to use them. The proposal acknowledged several factors that affect the degree to which the historic data set represents the lowest rate that the source is capable of meeting and explains the adjustments EPA made to its proposed emissions limits to account for those factors. There are specific comments that take issue with certain choices EPA made in applying the statistical approach, which EPA addresses later in this notice, but nothing in the CAA or EPA rules or guidance precludes EPA from using a statistical approach as it has done here.

Comment: PADEP takes issue with EPA's decision to not do a technical and economic feasibility analysis for other potential NO X control technologies at these sources, such as installation of newer low-NO X burners that achieve greater NO X reductions during the combustion process. Key-Con provided similar comments, asserting that our failure to analyze each of these other potential NO X control technologies for their economic and technological feasibility was not in keeping with RACT. These commenters took issue with EPA's presumption “that the facilities have the flexibility to change their operations to emit less NO X per unit of heat input.”

Response: The statements discussing other potential NO X control technologies that could be adopted, but that EPA was not requiring, were provided as additional information, and as noted in the proposal, “EPA did not evaluate these technologies in the context of our RACT analysis.” Commenters appear to assume that EPA expressly accounted for installation or increased use of these technologies when determining limits that each source is capable of meeting. To the contrary, this discussion was intended to clarify that these other control techniques were not accounted for in EPA's development of each source's limits; neither the rates nor the weights were adjusted to require more use of these other control technologies. To the degree that a source was using such other control technologies during the period used in selecting the RACT limits, EPA's approach for developing the limits assumed that the sources continued to operate these other technologies without any change.

Also, although PADEP did an analysis of other NO X control technologies available to each source when setting the limits in the permits, PADEP rejected all of these other control technologies except boiler tuning, either for technical feasibility or cost reasons, in setting the limits. This rejection of most of the other control technologies as RACT by PADEP essentially aligns with our own selection of SCR as RACT.

Comment: Homer City objects to applying the RACT limit from the lowest emitting of the three sources at the facility as a facility-wide RACT NO X limit. Homer City asserts that the definition of RACT, i.e. “. . .the lowest emission limit that a particular source [emphasis added] is capable of meeting. . .” requires that EPA establish FIP limits on a unit by unit basis, rather than by a facility wide average.

Response: Longstanding EPA policies have allowed for averaging to meet RACT limits, including averaging across multiple emissions units. The 1992 NO X supplement to the general preamble  17 states that it is appropriate for RACT to allow emissions averaging across facilities within a nonattainment area (or Ozone Transport Region (OTR) state, as is the case here). In practice EPA has allowed averaging across units on a facility-wide basis, and even across facilities in the same system under common control of the same owner/operator, including its approval of PADEP's prior EGU RACT rules. 18 EPA's implementation rule for the 2008 ozone NAAQS allows nonattainment areas to satisfy the NO X RACT requirement by using averaged area-wide emissions reductions. 19 EPA reasonably allows averaging for compliance, so long as the underlying rates used as the basis for the average meet the definition of RACT. The comments do not provide a basis for EPA to reject its longstanding emissions averaging policies. To the contrary, these policies provide additional flexibility for sources to manage their SCR operation across units to ensure compliance with the limits.

Regarding the comments on EPA's proposal to base the facility-wide average rate on the best performing unit, the EPA is finalizing a minor change. In light of the unit-specific nature of EPA's weighted rate analysis, the EPA expects that the unit-specific rates already represent RACT for each unit, and that the most appropriate basis for a facility-wide average would be the weighted rates for each of the units at the facility. While some commenters felt that EPA should use the lowest single unit rate to drive facilities to use their best performing units most often, we expect that the stringent unit-specific rates, when averaged together, will still provide sufficient incentive to use the best performing units most often. See section IV of the notice for additional information.

Comment: Key-Con notes that only one of the designated nonattainment areas in Pennsylvania is currently violating the 2015 ozone NAAQS, and expresses concern that EPA appears to have inappropriately considered the potential for lower ozone levels in many areas in setting RACT, and states that the requirement for NO X RACT is simply tied to Pennsylvania's inclusion in the OTR. Key-Con also asserts that it is more appropriate to use interstate transport rules, not RACT, to address concerns about states' obligations to eliminate significant contribution to nonattainment, or interference with maintenance of NAAQS in other states.

Response: The EPA agrees with the commenter's characterization that Pennsylvania must implement RACT level controls statewide due to the state's inclusion in the OTR, in accordance with CAA § 184. The statutory direction to require “implementation of reasonably available control technology” in states included in an ozone transport region, CAA §§ 182(f), 184(b), is the same in substance as the requirement for ozone nonattainment areas for “implementation of reasonably available control technology,” CAA § 182(b)(2). Therefore, EPA's analytical method to determine what level of control technology is reasonably available does not differ based on whether RACT is being implemented in an ozone nonattainment area or the OTR.

There are also areas of Pennsylvania that are still designated nonattainment for both prior and current ozone NAAQS. EPA notes that the implication of the commenter's statement, that an area's factual attainment of an ozone NAAQS, as perhaps shown by a Clean Data Determination, would have implications for whether that area needs to implement RACT, is incorrect. An area designated nonattainment must continue to meet the statutory requirement to implement RACT, if otherwise applicable, until the area is redesignated to attainment or unclassifiable under section 107(d)(3) of the CAA. While the EPA did identify improved air quality in many areas, including remaining ozone nonattainment areas, some of which are in other states, as a benefit of the FIP emissions limits, we did not determine RACT through the selection of control technology and identification of emission limitations that the sources are capable of meeting based on the air quality impact in any particular area(s). In other words, air quality improvement in nonattainment areas in Pennsylvania or other states was not a criterion in determining RACT in this action.

Comment: Several commenters claim that EPA's economic feasibility analysis for SCR optimization was flawed. First, commenters assert that the economic analysis was flawed because it only considered the costs of additional reagent, and ignored considerable capital costs such as increased catalyst maintenance and replacement, and modifications to ancillary equipment. Second, commenters assert that the actual $/ton NO X costs far exceed what EPA's analysis claims, and are more likely in the $150,000-200,000/ton range. Additionally, commenters assert that EPA's analysis of reagent injection incorrectly assumes that reagent costs will return to historic, lower prices.

Response: EPA disagrees. First, commenters are incorrect in the assertion that EPA did not consider capital costs, such as catalyst maintenance and replacement. As discussed in the NPRM and TSD, EPA relied on certain data from the recent evaluation of variable operating and maintenance (VOM) costs (which include increased catalyst maintenance and replacement costs), associated with increased use of SCRs at EGUs used in a number of national rulemaking actions related to the CAA's interstate transport requirements, including most recently the proposed Good Neighbor Plan for the 2015 ozone NAAQS. In the “EGU NO X Mitigation Strategies Proposed Rule TSD” (Good Neighbor Plan TSD) for the proposed Good Neighbor Plan (included in the docket for this action), EPA used the capital expenses and operation and maintenance costs for installing and fully operating emission controls based on the cost equations used within the Integrated Planning Model (IPM) that were researched by Sargent & Lundy, a nationally recognized architect/engineering firm with EGU sector expertise. See 87 FR 31808; TSD at 16-18. EPA's cost analysis for the proposed FIP only related to increased use, or optimization, of the SCRs, since each facility already had SCR installed. While that analysis was presented on a national, fleetwide basis, for this action EPA used site specific data in the “Retrofit Cost Analyzer”  20 to perform a bounding analysis to demonstrate that the cost assumptions made in the RCU and Good Neighbor Plan were still accurate and reasonable for the current RACT analysis. Using that methodology, EPA estimated a cost per ton for these sources that ranged from $2,590 to $2,757, depending on the unit. As previously stated, these estimates did include capital costs associated with increased catalyst maintenance and replacement. Reagent costs have actually dropped since the May 25, 2022 NPRM, 21 and the cost per ton of NO X removed is still well within a range that should be considered economically feasible.

In Table 4 of the TSD for the proposed FIP, EPA calculated the potential change in NO X mass emissions, based on the proposed 30-day average NO X emission limits. 22 Then, in Table 5 of the proposed TSD, EPA calculated the cost per ton of NO X removed based on the additional amount of reagent needed to meet to those limits. 23 EPA has made slight adjustments in finalizing the emission limits after considering comments. Detailed discussion of the rationale for and of the limits themselves can be found elsewhere, but particularly in section IV of this preamble. Table 3 of this preamble shows the reductions these limits will realize when compared to 2021 emissions data.

Based on the revised limits, and an updated cost of reagent, EPA calculated the cost per ton of NO X removed for the final limits:

With respect to the assertion by commenters that the $/ton value is actually in the $150,000-$200,000/ton of NO X removed range, commenters have not supplied adequate data or analysis to substantiate that assertion. Commenters (in this case, Montour) merely assert that in order to meet the proposed limits, the units will need to run for extended periods of time following a startup, even when electricity is not being sold to the grid, in order to achieve a certain number of hours of low hourly NO X emissions rates to offset the higher hourly NO X emission rates during startup, or else the source will not meet the proposed emission limits in the FIP. Montour claims that it has more frequent start-ups and shut-downs during which it cannot operate the SCRs. EPA notes that the comment did not provide any analysis of potential alternate methods of compliant operation, and merely submitted data relating to the extra cost of fuel oil during the period of time they assert they will be required to run. For example, it may be possible for the units to ramp up more quickly following startup so as to spend less time in SCR-off mode. Additionally, it may be possible for the units to spend more time “hovering” at a higher heat input ( i.e. SCR-on) in anticipation of a need for quick dispatch. EPA acknowledges that the limits in the FIP may result in the sources' needing to re-evaluate how they operate their EGUs in order to meet the new RACT limit, which may require adjusting the prices and certain operating parameters they specify to PJM when bidding into the market. However, EPA views these as free-market considerations, rather than an appropriate component of a RACT determination. EPA has long held that “[e]conomic feasibility rests very little on the ability of a particular source to `afford' to reduce emissions to the level of similar sources. Less efficient sources would be rewarded by having to bear lower emission reduction costs if affordability were given high consideration. Rather, economic feasibility . . . is largely determined by evidence that other sources in a source category have in fact applied the control technology in question.”  24

EPA continues to believe that optimization of the SCRs to achieve the NO X emission limits in this FIP is economically feasible. Nothing submitted in the comments provided adequate justification or data to make a determination to the contrary. Indeed, evidence from the units' operating history supports EPA's view that when it is economically advantageous to do so, these units have no trouble meeting lower limits. Some of the lowest NO X emissions EPA observed coincided with high NO X allowance prices associated with the NO X SIP call which went into effect in 2003. 25 Additionally, data for some of these units from May through June of the 2022 ozone season generally indicate SCR operating patterns (and, as a result, NO X emissions) that match or are among their best in the recent data record. EPA believes this is due, at least in part, to the market prices of NO X allowances needed for compliance with the RCU during this period, which were reported to range between $20,000 and $40,000 per ton. 26

Comment: Commenters assert that EPA ignored equipment failure issues and failed to consider the deleterious effects on both control equipment and on the environment (ammonia slip, decreased mercury removal) of excess ammonia injection, particularly when operating below the catalysts' minimum effective temperature range. Commenters further assert that EPA failed to consider an engineering analysis submitted by Key-Con that PADEP relied upon in developing their case-by-case limit for Key-Con.

Response: EPA disagrees. First, EPA did not presume that the proposed FIP limits would be met by simply injecting more reagent during sub-optimal SCR operating conditions, and the FIP does not require it. EPA continues to recognize that the NO X reduction capabilities of the SCRs are flue gas temperature dependent, and that the NO X removal efficiency curve decreases with flue gas temperature until a point is reached where the SCR offers little or no NO X control above what is achieved by the low NO X burners (LNB) and overfire air (OFA) that are also installed on all of the units subject to this FIP. We also recognize that catalyst fouling, catalyst poisoning, ammonia slip and damage to downstream equipment are all potential outcomes of excessive reagent injection or injection during low temperature conditions. We further recognize that there have been changes in the electricity market in more recent years that result in greater periods of time when the units are operating in SCR-off mode. EPA believes that because the calculation of the limits uses actual past performance data from the sources, which include times at low heat input and therefore time with the SCR off, sources can meet these limits without injecting excessive amounts of ammonia during unfavorable SCR operating conditions. Additionally, using the third-best weight means that the SCR-off weight is based on a recent year that is not the extreme SCR-on case in the last decade and thus provides additional buffer.

The data show that during times when boilers are operating at high heat inputs and therefore SCRs are at optimum performance temperatures, sources have shown that they are capable of achieving limits in the 0.05 to 0.07 lb/MMBtu range, so they could achieve additional reductions during times when the SCR can be optimized to offset higher emissions during times when the SCR may not be optimized, so as to meet their 30-day rolling average and daily mass limit.

Also, EPA did review and consider the Key-Con engineering report referenced by the commenters. The information presented in that report appears to have been submitted to Pennsylvania to contest condition E.009 in PADEP's draft case-by-case RACT permit for Keystone, which would have required Keystone to set the SCR controllers at a target NO X emission rate of 0.06 lb/MMBtu. 27 According to Attachment 3 of Key-Con's comment letter, they additionally evaluated operational data from 2019, which they claim is the last year of typical operations. 28 The report evaluated ammonia injection rates, and purported to show that due to ammonia slip and fouling of downstream appurtenances, the SCR could not and should not operate at a set-point of 0.06 lb NO X /MMBtu. The report then determined that “a NO X rate of 0.09 lb/MMBtu is tolerable and will not require air heater washes nearly as frequently as 0.08 lb/MMBtu  29 or less would.” See page 10 of Appendix 3 to Key-Con's July 11, 2022 comment letter. The report also states that Key-Con conducted testing on Conemaugh unit 1 during 18 days in May 2017 to determine if continuous operation at a NO X setpoint of 0.04 lb/MMBtu was sustainable. The report claimed that it was not, because emissions of mercury spiked to a point where it appeared that Unit 1 would exceed its Mercury Air Toxics Standard (MATS) limit, and the NO X setpoint had to be increased to 0.07 lb/MMBtu to lower mercury emissions. A similar test was conducted on Conemaugh Unit 2 towards the end of the 2017 ozone season to determine if the 0.05 lb/MMBtu setpoint was sustainable, and the report claims that after 25 days at the 0.05 setpoint, mercury emissions increased abruptly and nearly exceeded the MATS limit, so the NO X setpoint had to be “relaxed” an unspecified amount to decrease mercury emissions. P. 7 of Attachment 3.

In response to the report, EPA notes that unlike Pennsylvania's proposed RACT permit terms, EPA is not requiring that the sources operate their SCRs at a certain set point below the 30-day rolling daily average NO X rate limit, so the validity and relevance of this testing to EPA's proposed limits is questionable. EPA is expecting that the operators of Keystone and Conemaugh will operate their SCRs in a way that balances concerns about catalyst and preheater fouling and mercury emissions with the emission rates set by EPA—rates which are based on operating data from these sources indicating achievement of these emission rates in the past, including the recent past. Also, we note that EPA's pounds of NO X per MMBtu of heat input emission rate limit is a 30-day rolling daily average emission rate limit, whereas its daily limit is a mass limit. In contrast, Pennsylvania's RACT permit had a daily (24 hour) average NO X emissions rate, so EPA's 30-day rolling average emission rate limit gives the source operators more flexibility in how they operate the SCRs. That is, the operators do not need to keep the setpoint for the SCRs at a very low level each day for an extended period of time, as they would to meet Pennsylvania's daily average NO X rate. The ability to average NO X hourly emission rates over 30 days allows the sources greater flexibility to vary NO X emission rates from their SCRs, raising NO X emission rates up or down in order to balance the various factors that must be taken into account, such as catalyst or preheater fouling and mercury emissions.

Finally, EPA notes that the commenter did not perform a “thorough review of EPA's NO X emissions analyses” because of EPA's alleged technical failures and failure to understand current and expected unit utilizations. 30 However, the commenter did not provide any information regarding expected unit utilization, and instead criticized EPA's proposed rates as unobtainable during startup events by providing 25 hours of minimal data regarding one cold-start of Keystone Unit 1 in January 2022. Given that this data covered only 25 hours of startup, and was not then averaged with 29 other days of emission data to arrive at a 30-day average hourly emission rate, it is not proof that this one unit could not meet EPA's 30-day average rate. Absent more robust data to support commenter's claim, EPA declines to amend its proposed rates for the four units at Keystone and Conemaugh based on the thin data presented.

Comment: PADEP asserts that EPA's weighted rate approach is flawed because it relies on an analysis of past averages, which is contrary to the court's instruction that “. . . an average of the current emissions being generated by existing systems will not usually be sufficient to satisfy the RACT standard.”

Response: EPA disagrees with the commenter's contention that the analysis underlying EPA's RACT limits is flawed simply due to the fact that EPA uses the mathematical function of averaging as part of the Agency's overall calculation. As the commenter notes, the Sierra Club decision does include language noting that “an average of the current emissions being generated by existing systems, will not usually be sufficient to satisfy the RACT standard.” 972 F.3d at 300. However, in the preceding sentence, the court provides necessary context for its statement and a helpful summary of what Pennsylvania provided in its prior SIP, EPA's approval of which the Court was vacating. The Court notes that the chosen emission limitation “was selected as it represents the average pollution output of the three plants that are already compliant over the past five years.” Id. Therefore, the court did not take issue with the mathematical function of averaging; it took issue with the quantity being averaged, and its application in setting RACT. EPA does not believe that the court meant to forbid the use of any averaging in the determination of RACT, so long as it fit within the definition of RACT and the use of such averaging was adequately and reasonably explained in the record.

As explained elsewhere in this action, EPA has used a statistical approach to establish the emission limitations contained in this FIP, which necessarily involves averaging. However, there are significant and meaningful differences between EPA's use of averaging and how PADEP previously used averaging to determine the RACT limits at issue in the Sierra Club decision. While Pennsylvania's limit was based on a five-year ozone season average from three plants that were then averaged together again to calculate a single limit required at five different sources, EPA's approach uses a source-specific third-best ozone season rate from a larger range of data. EPA's approach is consistent with the RACT definition, including the interpretation of RACT contained in the Sierra Club decision, because it is aimed at representing the lowest rate the source is technologically and economically capable of achieving, not the average rate it has already achieved. (As explained elsewhere in this action, EPA used third-best to represent the source's current capability, but the approach is still aimed at defining the lowest rate, rather than a 5-year overall average).

Comment: PADEP asserts that EPA's FIP is flawed because it relies on the third-best approach used in the RCU and Good Neighbor Plan, which is inappropriate because those rules evaluated more current data sets, and that EPA's data set selection is not driven by RACT regulations or guidance and does not set source specific limits considering technological and economic feasibility.

Response: EPA proposed to use the third-best ozone season rate for each source based on the idea, which was also cited in both the RCU and the Good Neighbor Plan, that the performance of SCRs degrades over time, and that usually only one layer of catalyst is changed/refurbished per year. Therefore, the SCRs may never be able to achieve the same emission reduction rate as when they started operating and all three catalyst layers were new. With the exception of the Conemaugh plant, which installed its SCRs in late 2014, the other sources installed their SCR by 2003. 31 Thus, many other parts of the overall SCR system, such as the reagent injection system, may also have deteriorated in performance. The use of the third-best year for each source is consistent with EPA's past practices in other rulemakings, and also has a basis in the performance data of each source. The third-best approach is a reasonable way of determining appropriate RACT limits. It avoids biasing the SCR-on limit with uncharacteristically low emitting ozone seasons, or under uncharacteristically optimal operating conditions. As stated in the April 6, 2022 proposed Good Neighbor Plan, the EPA found it prudent not to consider lowest or second lowest ozone season NO X emissions rates, which may reflect SCR systems that have all new components. Such data are potentially not representative of ongoing achievable NO X emission rates considering broken-in components and routine maintenance schedules. Additionally, the fact that CSAPR and the Good Neighbor Plan establish caps rather than limits does not preclude the use of the third-best approach for the purposes of the FIP. EPA is finalizing the use of the third-best year for all of the facilities except Conemaugh. As discussed elsewhere in this action, EPA has determined it is appropriate to use a different approach for establishing final RACT limits for Conemaugh due to the fact that Conemaugh has newer SCRs. As further discussed in section IV of this preamble, Conemaugh's final limit was calculated using the second-best rate and the second-best weight due to the more limited data set of years available for this facility based on the more recent installation of SCR. 32

Regarding the claim that the RCU and Good Neighbor Plan used more current data sets, this is because those rulemakings were undertaken under a completely different statutory provision with different requirements and purpose than this FIP. Both the RCU and Good Neighbor Plan FIPs were addressing the requirement in section 110(a)(2)(D)(i)(I) of the CAA to ensure that emissions from upwind sources, including EGUs, were not significantly contributing to nonattainment or interfering with maintenance in downwind areas. The RCU addressed upwind significant contributions to downwind areas for the 2008 ozone NAAQS, while the proposed Good Neighbor Plan addressed upwind emissions for the 2015 ozone NAAQS. As such, for both rules, EPA needed to use the most recently available and up-to-date data for both source emissions and ambient air monitoring results in order to identify upwind emissions currently affecting downwind monitors for the 2008 and 2015 ozone NAAQS. Here, the purpose is to identify RACT, as required under subsections 182(b)(2), 182 (f)(1), and 184 of the CAA, which requires that major sources of NO X and/or VOCs in nonattainment areas, or in the OTR, meet RACT, which EPA defines as “the lowest emission limit that a particular source is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility.” Given this different purpose, the examination of historic operating data for the SCRs is relevant to the determination of the NO X emission rates each source attained while running their SCRs, and which the source was therefore capable of meeting. Also, EPA did consider ozone season emission rates from each source through 2021, which was the most recent data available at the time of the proposal, so PADEP's claim that EPA did not consider recent data is incorrect.

Comment: PADEP further asserts that EPA's FIP is flawed because it only considers ozone season data, so fails to consider emissions for a major part of the year. Commenters claim the court acknowledged that their presumptive limit did account for seasonal variability. They cite to Motor Vehicles Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (“State Farm”) (Providing that “the agency must examine the relevant data and articulate a satisfactory explanation for its action including a “rational connection between the facts found and the choice made,” and claim that because EPA failed to consider the majority of the operational emissions data ( i.e., non-ozone season), EPA failed to adequately demonstrate that the proposed limits are technically and economically feasible year-round.

Response: EPA disagrees with PADEP's claim that EPA should consider non-ozone season data for several reasons. Although these sources were subject to the CAIR annual NO X requirements starting in 2009 and the CSAPR annual NO X requirements starting in 2015, these cap and trade programs initially set annual NO X emission budgets for states based on a NO X emission rate of 0.15 lb/MMBtu starting in 2009, then based on a cost-effectiveness level starting in 2015, and allowed individual sources to exceed their allocated allowances by a certain percent by purchasing additional NO X allowances from other sources. As such, the non-ozone season emissions data beginning in 2009 does not necessarily reflect the NO X emission rates these SCRs are capable of achieving outside of the ozone season because the SCRs were not required to meet a specific NO X emission rate. Second, post-2017 (when Pennsylvania's RACT II limit of 0.12lb/MMBtu was effective), data show the sources generally did not operate the SCRs for significant time periods outside of ozone season. Hourly operating data submitted by Keystone and Conemaugh to PADEP show that in 2017, the SCRs did not consistently operate outside of ozone season, with the units at each source often cycling down to low heat inputs at night and therefore not operating their SCRs. 33 Third, Pennsylvania also based the 0.12 lb/MMBtu emission rate in its RACT II rule solely on ozone season emissions data. Finally, PADEP does not explain why EPA's determination of RACT for these sources would be altered by consideration of non-ozone season data.

Comment: Several commenters objected to EPA's methodology (and thus, results) in calculating the SCR-on/SCR-off thresholds. PADEP in particular asserts that by assigning an operating threshold for SCR operation at each facility, EPA has run afoul of the Court's objection to the 600-degree threshold in Pennsylvania's original RACT II regulation. Further, PADEP asserts that because EPA had only limited information from Key-Con and none from the other facilities, and because we failed to seek such information from the other facilities, the resulting emission limits are unsupported. Another commenter asserted that EPA's visual evaluation of scatterplot data to develop the thresholds was flawed, and that rather than accurately depicting the SCR-on/SCR-off thresholds, the diagrams actually depict the minimum sustainable load for the unit, which is “. . . typically the level at which PJM places a unit at low load for spinning reserve during periods of low demand.” See Homer City Comments at 2. Additionally, commenters assert that the use of 0.2 lb/MMBtu as an indicator of when the SCRs are or are not running is arbitrary, since there are times when an SCR is off, but the NO X emissions are below 0.2 lb/MMBtu, and conversely, there are times when an SCR is running, but the NO X emissions are greater than 0.2 lb/MMBtu.

Response: First, EPA disagrees with Pennsylvania's assertion that the methodology for determining the SCR-on and SCR-off weights and rates using observed SCR thresholds in the data for purposes of developing an emissions limit that would restrict SCR-off operation is substantially similar to PADEP's use of the 600-degree threshold to justify essentially unlimited SCR-off operation. EPA further disagrees that the Sierra Club adverse decision concerning the 600-degree threshold has direct relevance to the permissibility of the approach used by EPA in utilizing SCR-on and SCR-off weights and rates. The Court found that Pennsylvania's blanket 600-degree temperature threshold, which Pennsylvania applied uniformly to all the sources regardless of the differences in SCRs at each source, was inadequately explained or supported by the record. 972 F.3d at 303 (“Regarding the threshold, neither the EPA nor DEP can explain why it is necessary at all. . . . [E]ven assuming such a temperature threshold were reasonable, the record does not support the conclusion that 600 degrees Fahrenheit is the proper limit.”) EPA's SCR-on and SCR-off thresholds were derived through careful unit-by-unit observation of actual operating data. Furthermore, rather than drawing a regulatory line below which less stringent emissions limits apply without any restriction on operating time, EPA used the 0.2 lb/MMBtu threshold to divide the operational data into SCR-on and SCR-off categories, then used those data to establish both average SCR-on and -off rates for each unit, and to identify the unit's past percentage of ozone season time with the SCR on or off to establish the weight applied to the respective rates. As such, the 0.2 lb/MMBtu is not an enforceable limit, but merely a data point that was one component of EPA's approach to use historical operating data to derive the lowest emission limit that these particular sources are capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility.

As for the assertion that the 0.2 lb/MMBtu cutpoint is arbitrary, EPA conducted a fleetwide analysis of EGUs with combustion and post-combustion NO X controls and found that this rate indicates that the SCR is running to some extent. 34 Nevertheless, in response to our May 25, 2022 (87 FR 31798) proposal, EPA did in fact receive additional information from certain sources (Montour and Homer City) regarding what they consider the proper megawatt (MW) threshold for operation of their SCRs. As described in section IV of this preamble, we have taken that information into account in developing the NO X emission limits finalized in this action.

Comment: PADEP asserts that EPA's statistical approach to RACT in this case has led to absurd results, specifically a higher limit for Conemaugh than for Homer City and Keystone, despite the fact that Conemaugh's SCRs are newer and technically capable of achieving lower NO X emission rates.

Response: EPA has developed the emissions limits for each source based on analysis of historical data for each source demonstrating what emissions the sources are capable of achieving through operation of their installed SCR equipment. The emission limits being established for Keystone are based on analysis of historical data extending back to 2003, while the emissions limits being established for Conemaugh are based on historical data extending only back to 2015 due to the more recent SCR installations at Conemaugh. Because the shorter historical period of the Conemaugh data set does not contain periods with high NO X allowance prices that would necessarily have motivated Conemaugh to try to achieve the lowest possible emissions, it is possible that EPA's resulting emissions limits for Conemaugh are less stringent than would have been established with a more extensive data set. However, the limitations of the data available for Conemaugh in no way render the Keystone emission limits unreasonable. Nevertheless, the comment does illustrate that EPA should adjust its approach to account for the more limited Conemaugh data. As further discussed in section IV of this preamble, in response to comments received, EPA is finalizing limits that differ slightly from what was proposed, including an adjustment for Conemaugh that better accounts for the more limited set of ozone seasons from which to draw data for this source, while also addressing the circumstances that prompted the PADEP comment regarding absurd results. The Agency determined that for Conemaugh, it is reasonable to use the second-best weight instead of the third-best.

Comment: PADEP asserts that EPA should have considered tiered limits as they did, and that such a limit structure would, in fact, result in optimized SCR operation.

Response: EPA disagrees that we needed to establish a tiered limit structure like the one that was vacated by the Court, or the similar approach used by PADEP in their case-by-case permits. As explained in the proposal and the earlier section of this preamble, EPA did consider the appropriateness of tiered limits and opted to not propose such an approach for several reasons. First, while the Court did not explicitly preclude the threshold approach, they were clearly suspicious of its appropriateness: “Regarding the threshold, neither the EPA nor DEP can explain why it is necessary at all. It is not a common exemption.” Sierra at 20. Upon reconsideration, EPA believes that it is not necessary. EPA continues to believe that constraining SCR-off operation to the extent possible based on data reflecting the recent operations of each source is the appropriate means of implementing emission limits consistent with RACT. As EPA raised in the on-record comments we submitted to PADEP on draft permits, 35 it is not clear to EPA how a tiered limit approach constrains SCR-off operation in any meaningful or enforceable way. 36 Moreover, unconstrained SCR-off operation would be inconsistent with the Court's directive that the RACT limit must be technology-forcing. 37 A set of limits that does not place limits on the source operating without its NO X control technology is not technology-forcing. Accordingly, EPA has chosen to forgo the tiered limit approach, and instead use a weighted rate approach, which we continue to believe provides the sources flexibility to address current operational realities ( i.e., increased cycling), while at the same time providing meaningful constraint on SCR-off operation and objective enforceability.

Comment: Talen Energy (Montour) asserts that EPA's limits are so restrictive that they extend the regulatory regime beyond the customary regulation of air pollutant emissions, and in effect dictate operation of units and may severely limit the ability of the units to run as directed by PJM and potentially compromise grid reliability.

Response: EPA disagrees that these FIP limits are too restrictive or that they extend the regulatory regime beyond EPA's Clean Air Act authority or customary EPA action in a way that is inappropriate or inconsistent with past CAA implementation. Emission limitations are, by definition, a limitation on the amount of pollutants that may be emitted by a source and therefore all emission limits place restrictions on how sources operate in some fashion. For example, states or EPA may place enforceable requirements on sources for throughput limitations; federally enforceable requirements of this nature are a standard practice that substitutes for major source applicability of new source review (NSR) or national emission standards for hazardous air pollutants (NESHAPs). Some emission limitations may also take the form of work practice standards, which could place requirements on the type of fuel a source may use or limit the amount of time a source may operate under a certain status. These FIP limits do not prescribe when or how the affected units should operate in order to generate electricity. Rather, these limits ensure that when the units are operating, their already installed SCRs are also operated in a way that achieves the lowest emission rates that are technically and economically feasible.

As discussed previously in this notice, EPA acknowledges that the weight given to the proposed SCR-off limit has the effect of limiting the portion of time a cycling source can operate in SCR-off mode and incentivizes a source to shift to SCR-on mode to preserve headroom under the limit. While driving SCR operation, the weighted limit accommodates the need for an EGU to occasionally cycle down to loads below which SCR can operate effectively. Nothing in the FIP being finalized in this document is intended to prohibit SCR-off operation, nor does it dictate specific times when SCR-off operation would not be permitted to occur.

Comment: Montour commented that the compliance date should be extended and not be the same date as the effective date of the regulation. Citing the need to identify and evaluate the updates/changes necessary, update programming for the CEMS and process control equipment, provide training to staff, and complete operational trials, Montour suggested extending the compliance date by six months. Other sources commented that EPA should not proceed at all with a final rule at this time and instead seek an extension from the Court to reconsider the proposed limits.

Response: Before addressing the substance of this comment, EPA would like to correct an error in the NPRM regarding the effective date of the FIP. The effective date of the regulation was intended to be conveyed as an editorial note that the rule would be effective 30 days after publication of the final rule. Instead, the editorial note was converted into an actual date by the publisher, which was 30 days after the date the proposed rulemaking was published: June 24, 2022. This was a typographical error that produced an absurd result: the rule could not possibly be effective before a final approval, or indeed, even before the public comment period had ended (on July 11, 2022). The proposed compliance date was accurately described to “commence immediately upon the effective date.”  38

With regard to Montour's request to extend the compliance date, EPA agrees there will be a certain amount of time required for the facilities to adjust to the new requirements and make certain technical and administrative changes to ensure operations comply with the new RACT limits. After considering comments received on this rulemaking, EPA has determined that it is appropriate to extend the compliance date past the initial proposal of 30 days after the effective date of these regulations. The commenters have raised compelling concerns about being able to meet new, more stringent limits on the accelerated timeline. In light of the comment received from Montour, EPA is finalizing a compliance date of 180 days after the effective date of the FIP. EPA is under Court Order to “. . . either approve a revised, compliant SIP within two years or formulate a new [FIP],” which EPA interprets as requiring a final rule by August 27, 2022. Therefore, EPA will finalize the final rule in compliance with the Court.

Comment: Homer City asserted that EPA's description of the methodology for determining SCR-on and SCR-off weighting is inadequate to allow for independent verification. Also, Homer City also commented that there is no explanation as to why the SCR-off weights (0.00 or 0.01) are so small, which leave no margin for SCR-off operation.

Response: The commenter did not provide adequate explanation as to why or where it had difficulty in understanding or replicating the calculations EPA outlined in the proposed notice. Homer City also did not submit its attempted calculations for EPA's consideration. All of the data EPA used to develop the proposed emission limits (including that which was used to establish the SCR-on and SCR-off weights) was either available in the docket, or, because of file type and size limitations of www.regulations.gov, was available upon request. 39 Other commenters were able to replicate and/or modify EPA's methodology. Homer City's weights are representative of their ozone season operation over the time period analyzed for the weights (2011 to 2021). Further discussion of their revised weights can be found in section IV of this preamble.

Comment: Sierra Club asserts that the requirement that the sources submit reports of their compliance every six months should be shortened to every three months (quarterly), because the information needed to demonstrate compliance with the FIP is already submitted to EPA for various purposes on a quarterly basis, and that it does not make sense for the FIP to require less frequent (biannual) reporting. In addition, if EPA elects to keep the FIP reporting data separate from reporting to the Clean Air Markets Division, Sierra Club requests that EPA put a mechanism into the FIP by which the public can readily access this data to ensure compliance, such as posting that data to the Clean Air Markets Program Data tool. Finally, the commenter requests that the FIP recordkeeping requirements be updated to include information about SCR runtime and/or bypass as well as reagent usage.

Response: EPA selected the six-month reporting period in order to be consistent and streamlined with the sources' existing title V reporting requirements. These title V reports are submitted to EPA Region 3 and the state for review. The fact that certain data used to determine compliance with the FIP requirements are also reported quarterly to other EPA offices under various programs, such as the Acid Rain program and Cross State Air Pollution Rule, and then placed into EPA's Clean Air Markets Data Program online tool, does not provide a sufficient basis to increase the frequency of reporting compliance with the FIP requirements to match the reporting frequency for the underlying data. There is nothing about the FIP limits that would necessitate a reporting frequency greater than the reporting frequency required by title V. The FIP does require deviation reports to be submitted to EPA when NO X emission limits have been exceeded for three or more days in any 30-day period.

With respect to the assertion that the reporting requirements should be updated to include SCR runtime and reagent injection data, EPA believes that reporting of CEMS data consistent with title V requirements is sufficient for compliance demonstration purposes. EPA has not tied the emission limits directly to SCR operating parameters in a way that would necessitate the submission of additional SCR data. Compliance with the emission limits is the ultimate regulatory requirement, and this is adequately demonstrated through submission of CEMS data. EPA does not believe it is appropriate at this time to include reporting requirements to this FIP that are not directly necessary to show compliance with the regulatory requirements finalized herein.

Regarding the assertion that EPA should provide mechanism by which the public can readily access additional data beyond the regularly reported emissions data to ensure compliance, such as posting that additional data to the Clean Air Markets Program Data tool, EPA is not taking that step at this time. There is nothing about the NO X limits in this FIP which would require EPA to provide a novel approach to providing access to additional compliance data. Further, the tools EPA makes available for providing the public with access to reported emissions data are not at issue in this proceeding, and comments requesting changes to those tools are outside the scope of the rule.

Comment: Sierra Club asserts that EPA should have used the best year, rather than the third-best, which is what EPA used in establishing the SCR-on rate. First, they assert that EPA has not established that control equipment degrades over time, and that by selecting the third-best ozone season, EPA is allowing sources to forgo maintenance and good operating practices that would allow them to otherwise meet limits that were established on a best ozone season basis. Further, pointing to the rates achieved during the period of 2003-2010 when NO X allowance prices were high due to the NO X SIP call, Sierra Club asserts that the decline in SCR performance is due not to equipment degradation, but to the lack of a regulatory requirement to achieve better emissions. Finally, Sierra Club asserts that an examination of the best performing years does not support the idea that equipment degradation due to the passage of time necessarily leads to an inability to meet lower limits, and again asserts that higher emissions rates are tied to less stringent regulatory requirements rather than equipment degradation.

Response: EPA disagrees that we should have used the best ozone season instead of the third-best to establish the SCR-on rate. First, although equipment degradation is not the only consideration we evaluated when selecting the third-best approach, it is certainly a contributing factor. While degradation can be slowed or mitigated through proper operation, there is little question that it occurs and can impact the removal efficiency. EPA has explained this previously that “[o]ver time, . . . the catalyst activity decreases, requiring replacement, washing/cleaning, rejuvenation, or regeneration of the catalyst.”  40 EPA acknowledges that catalyst management practices can be adapted to address catalyst degradation, but that does not mean that the degradation does not occur.

In addition, EPA's longstanding interpretation of RACT does not require RACT-level controls to be equivalent to the “best.” The Court agreed with this interpretation in the Sierra Club decision: “we do not suggest that Pennsylvania must achieve the absolute lowest level of emissions that is technologically possible for the approved limit to satisfy RACT.”  41 As explained in the NPRM and in response to the previous comment, EPA believes that the third-best approach is a reasonable way of establishing appropriate RACT limits. Use of the third-best year avoids biasing the limit with uncharacteristically low emitting ozone seasons, or under uncharacteristically optimal operating conditions.

EPA does agree with the commenter that there does appear to be a correlation between increased SCR operation (and correspondingly lower NO X emissions), and periods when new regulatory requirements such as CAIR, CSAPR, the CSAPR Update, and the RCU, have created meaningfully more stringent NO X emission budgets. More stringent emissions budgets can compel EGUs to operate their SCRs more often and at lower NO X emission rates to meet these new budgets. They accomplish this result by raising the cost of NO X allowances, creating an economic incentive for EGUs to operate their SCRs more often and at lower NO X emission rates to either avoid having to purchase costly allowances or to generate NO X allowances to sell. EPA continues to believe that our proposed weighted rate approach takes these factors into consideration and establishes appropriate limits that are consistent with the CAA's RACT requirements.

Comment: Similar to comments relating to EPA's consideration of operating data from years when the units were operating in a base load capacity, commenters assert that ozone season operations are not consistent with year-round operations and therefore should not be the sole timeframe considered in development of the limits that apply all the time. Further, Key-Con in particular noted that the SCRs at Keystone were designed to only run during ozone season, and that in the past, they had considerable down time for cleaning and maintenance of the controls. Additionally, they assert that ammonium bisulfate salts (ABS) form more readily in colder ambient temperatures, leading to increased fouling.

Response: EPA acknowledges some of the technical challenges associated with temperature and SCR activity. Because of this, among other reasons, we performed an analysis of actual operating and emissions data and developed reasonable limits to account for challenges such as seasonal ambient temperature changes and increased cycling operation rather than selecting the absolute lowest rates that these units have ever achieved. EPA primarily used ozone season data to develop these limits, which is appropriate, not only because the ozone season generally represents a period of increased electricity demand and operation at these sources, but also because it is indicative of what these units can achieve when there are additional regulatory constraints and economic disincentives against sub-optimal SCR operation in place.

To the degree that the comment is suggesting that this RACT FIP should create seasonal limits that do not require SCR operations in non-ozone-season months, the EPA does not believe that this would be consistent with the CAA RACT requirement. As noted in the background of this preamble, NO X RACT for major sources is required to be applied year-round. There are numerous coal-fired EGUs operating in the OTR that operate SCR controls on an annual basis. Additionally, there are coal-fired EGUs operating outside the OTR subject to other regulations that mandate SCR controls be operated throughout the year as well. Like the four Pennsylvania facilities addressed in this notice, many of these other coal-fired EGUs were built in the same era (1960s and 1970s) and then later retrofitted with SCRs in response to the EPA interstate transport requirements for ozone season NO X emissions, which began in 2003. So, while EPA has applied RACT on a case-by-case, source-specific basis, EPA cannot ignore the fact that there are many coal-fired EGUs, outside of Pennsylvania, that can, and do, operate their SCR controls year-round with NO X emission limits similar to the final limits determined in this notice for the purposes of NO X RACT as well as for other regulatory requirements. 42

EPA also disagrees that the Keystone units cannot operate their SCRs effectively outside of the ozone season or that the rates must be further adjusted to account for seasonal effects. In response to Keystone's comment, EPA further reviewed non-ozone season emissions data reports for Keystone units and found that between 2009 and 2010, both Keystone units operated their SCRs in non-ozone season months for extended periods whereby their NO X emissions were generally below the final NO X emission limits determined in this notice. 43 Therefore, EPA cannot justify exempting Keystone from operating its SCRs, with reasonable effectiveness, for NO X RACT during non-ozone season months.

Comment: Key-Con asserts that EPA's limits severely and inappropriately limit the amount of time either facility can operate without ammonia injection, especially during start-up and low load operation. They further assert that the duration of a cold start-up is 18-24 hours, and that at loads between the minimum sustainable load (340 MW) and the unit load (which they do not identify) where the minimum continuous operating temperature (MCOT) of the SCR is reached, emissions can reach 0.35 lb/MMBtu for Keystone units, and 0.30 lb/MMBtu for Conemaugh. They assert that Keystone units 1 and 2 in particular would be unable to demonstrate compliance if there was one cold start-up in a 30-day period, even if they spent the rest of the time operating at the proposed limit of 0.074 lb/MMBtu.

Response: Key-Con's comment is not sufficient to demonstrate an inability to meet the proposed FIP limits. Key-Con presented no data to justify the amount of time spent in a cold start-up during which the unit load is above the sustainable limit, but below whatever threshold is necessary to bring flue gas up to the MCOT of the SCR and begin ammonia injection. As noted in a previous response, Key-Con did not provide any information regarding expected unit utilization, and instead criticized EPA's proposed rates as unobtainable during startup events by providing 25 hours of minimal data regarding one cold-start of Keystone Unit 1 in January 2022. Given that this data covered only 25 hours of startup, and was not then averaged with 29 other days of emission data to arrive at a 30-day average hourly emission rate, it is not proof that this one unit could not meet EPA's 30-day average rate.

In response to this comment, EPA further reviewed startup data for Keystone in non-ozone season months. On November 5, 2009, Keystone Unit 1 started operations after having been inoperable since October 20, 2009. During the first three days of operation, the daily NO X emission rates were 0.229, 0.160, and 0.058 lb/MMBtu respectively. During the subsequent days of operation, up until reaching 30 operating days, the daily NO X emissions varied from a low of 0.046 to a high of 0.116 lb/MMBtu. The resultant 30-day NO X emission rate after 30 days of operation was 0.064 lb/MMBtu. 44 This is well below the final NO X emission rate limit determined in this notice of 0.075 lb/MMBtu. This example illustrates that the unit is entirely capable of achieving the emission rate limits in this notice, with startup periods, provided the normal operating days are sufficiently controlled and the facility was able to achieve these results without a specific 30-day regulatory requirement to do so. Moreover, EPA has purposely granted an emission rate averaged over 30 days, which is the maximum averaging time EPA can grant for NO X RACT. EPA has also issued facility-wide emission rate limits to allow the facilities to further average the emission rates amongst their units. This amount of dual averaging, in terms of averaging days and then units, affords Key-Con, and the other facilities, additional flexibility to manage startup operations.

Further, even if we are to accept this claim on its face, Key-Con's argument fails because they merely point out the obvious mathematical certainty that any appreciable amount of time spent operating above the average limit would lead to a violation if the entirety of the remaining averaging period was spent operating exactly at the limit. The entire purpose of establishing average limits (and in this case a 30-day average) is to smooth out the peaks and valleys of shorter-term emissions and arrive at a limit that can be met by offsetting periods when the units emit above the limit (generally, SCR-off periods), with periods of optimal operation where the units emit below the limit (generally, SCR-on periods). This is one of the reasons that we did not select the lowest achievable SCR-on rate as RACT. EPA's limits provide for some level of SCR-off operation, while still representing the lowest rate the source is capable of meeting over such period through the application of control technology that is reasonably available considering technological and economic feasibility. To the degree that this limit acts as a constraint on low-load operation without the SCR, the commenter did not explain why such a constraint is inappropriate. In light of the high NO X emissions that can occur with such operation, the EPA believes this is a reasonable approach to define a limit that represents the application of RACT. Moreover, Key-Con's own analysis appears to support an ability to meet 0.075 lb/MMBtu, even based on cold start-ups taking place in January. 45 As discussed in section IV of this preamble, EPA has re-evaluated our proposed limits, with the resulting limits being consistent with what Key-Con's comments appear to show is attainable.

Comment: Homer City asserts that because the proposed 24-hour mass limits are based on the 30-day average rate limits, the mass limits do not provide adequate margin for periods of start-up and shut down.

Response: EPA disagrees. First, as previously discussed, the 30-day rate-based limits upon which the daily mass limits are based were derived in such a way as to incorporate several layers of flexibility, or margin, including emissions during periods of startup and shutdown. We used weighted averages considering years when the units were operating in more of a load-following mode rather than as baseload, we used a 30-day averaging period to “smooth” variability of shorter-term emissions, and we used the “third-best” rather than the “best” approach in order to add additional buffer and still establish limits that represent RACT. Additionally, it is not clear what period of time the commenter is considering as “startup,” nor have they established that they could not begin operating the SCRs sooner. While emission rates during the startup process do tend to be higher before the control equipment is fully operational, mass emissions are typically lower for most startup hours, since startup generally happens at lower levels of fuel combustion. Finally, commenters have not presented any actual operating data to demonstrate that they cannot meet the proposed limits. Indeed, EPA's review of historical data, and in fact, some data from the 2022 ozone season reported so far, supports a determination that the sources can achieve EPA's final 30-day NO X emission rate limits, and that when the units operate in compliance with the 30-day rate limit, they have generally operated below the final daily NO X mass emission limits.

Comment: Homer City claims that EPA's proposed limits are not technically feasible because, they assert, from 2010-2021, only Keystone and Conemaugh Units 1 and 2 have been able to achieve EPA's proposed limits on a 30-day basis, and even then, it was only 7 instances or 6.36% of the time.

Response: First, if sources were not meeting the proposed limits in the selected years during which there was no regulatory requirement or economic incentive to do so, it is not necessarily proof that they could not have. Nor is it proof that they cannot in the future. EPA notes that in rejecting EPA's approval of PADEP's original 0.12 lb/MMBtu limit as “a mere acceptance of the status quo,” 972 F.3d at 302, the Court in Sierra Club affirmed that “an average of the current emissions being generated by existing systems, will not usually be sufficient to satisfy the RACT standard,” id. at 300. Homer City rejects EPA's limits, but presents no data or analysis that demonstrates what they are in fact capable of achieving, and what EPA should establish as RACT for these units. EPA has demonstrated that the limits are achievable when the regulatory environment requires it, and that the limits in the FIP represent RACT for these sources.

Comment: PADEP asserts that EPA's FIP is based on an incomplete record. First, PADEP asserts that EPA ignored information that the Department obtained from the sources and failed to obtain additional information that would be necessary to conduct a source specific RACT analysis. Additionally, PADEP claims that meetings between EPA staff and the Maryland Department of the Environment (MDE) prior to our proposal may be relevant to the development of the FIP, and that records from that meeting should have been in the docket.

Response: EPA disagrees. First, to the extent it was relevant to our approach, we did consider the information that PADEP obtained and submitted, and in fact cited to it on numerous occasions, and included it in the record as appropriate. EPA had a sufficient technical basis, that is thoroughly documented in the rulemaking record, to support the RACT limits included in this FIP. To the extent that PADEP or the sources at issue in this rulemaking believe the Agency should have considered additional or alternative data, the 45-day comment period provided an opportunity for the sources to submit such information. EPA considered all of the additional information submitted prior to finalizing the FIP. With respect to the assertion that records from EPA's discussions with MDE prior to EPA proposing this action should have been contained in the record, EPA disagrees. All documentation and information that EPA relied upon in developing this rule action have been included in the record. The cited discussion with MDE did not contain information that was relied upon for development of the FIP approach and limits.

Comment: Montour submitted a technical analysis which built upon EPA's methodology in the May 25, 2022 (87 FR 31798) NPRM in order to demonstrate what they felt are more achievable limits, based on a dataset that represents what Montour contends are more consistent with current operating parameters. Montour asserts that EPA should have only considered ozone season data from 2017-2021, that the correct SCR threshold is 440MW, and that as a result, Montour should have a facility-wide, 30-day NO X emission rate limit of 0.099 lb/MMBtu, with daily mass-based limits of 17,385 and 17,200 lb NO X /day for Units 1 and 2, respectively.

Response: As further discussed in section IV of this preamble, as a result of comments received and while largely retaining the methodology described in the NPRM, EPA has revised some of the limits from the proposal based on the submittal of additional data or the reconsideration of some of the weights in the case of Conemaugh. Specifically, in cases such as Montour where a facility submitted SCR threshold data to counter that which EPA used in the proposal, EPA recalculated the NO X rate limits using the facility's information, but EPA's original methodology. In the case of Montour, this recalculation resulted in limits that are very much in line with the alternate limits proposed by the facility in its technical analysis. Specifically, EPA's methodology resulted in a facility-wide, 30-day NO X emission rate limit of 0.102 lb/MMBtu, and daily, mass-based limits of 17,912 and 17,732 lbs NO X /day for Units 1 and 2, respectively. In the interest of consistency, EPA is finalizing the limits derived from our original methodology rather than the alternate limits proposed by Montour. Additionally, because EPA's limits are in line with, and in fact very slightly higher than what Montour proposed, EPA is not evaluating the remainder of Montour's technical analysis.

Comment: Several commenters assert that because achieving compliance with MATS has a negative effect on NO X reduction efficiency, EPA should not have considered years prior to MATS requirements, and that the limits are therefore too stringent.

Response: EPA recognizes the co-benefits of SCRs regarding the oxidation and ultimate removal of mercury from flue gas. Commenters suggest that there is a trade-off between NO X and mercury removal, resulting in higher NO X rates to ensure sufficient mercury capture. EPA has conducted analysis to evaluate this contention in a previous rulemaking. Specifically, to respond to comments received on the proposed CSAPR Update, EPA examined ozone-season NO X rates from 86 units subject to the MATS rule with SCR and rates below 0.12 lbs NO X /MMBtu in 2015 ( i.e., units that were removing the necessary mercury while operating their SCRs during the 2015 ozone season). EPA selected the rate cut-off of 0.12 lbs NO X /mmBtu to clearly identify units that were operating their SCR. EPA found that the average 2015 NO X rate at these 86 units was 0.072 lb/MMBtu. The average rate for these same units in previous years was 0.080 and 0.078 lb/MMBtu for 2014 and 2013, which was prior to the MATS compliance date when the units would have only needed to optimize operations for purposes of NO X removal rather than mercury removal. The 2014 and 2013 rates were each statistically significantly higher than the rate in 2015 when these units were complying with the MATS rule (Student's t-test probability (p) <0.03 and 0.03). Based on the CSAPR Update analysis, which is included in the docket for this rulemaking, 46 EPA concludes that units are able to simultaneously comply with MATS ( i.e., remove mercury from flue gas) while maintaining or even lowering their NO X rates, and that the comment therefore does not provide a sufficient basis for EPA to exclude data from years before MATS implementation from the analysis conducted for this rule.

Comment: Several commenters note the role PJM plays in directing the units' dispatch and then assert various implications concerning the feasibility or cost of the proposed emissions limits. For example, Talen states that “PJM retains complete and unilateral discretion for calling the units to run at certain load profiles. In addition to directing Montour SES when to start up the units, PJM's typical dispatch also includes the lowering of the unit output down to minimum load during off-peak periods daily.” Talen further states that “PJM dispatch information can dictate the ramp rate of the unit after a startup. It is not wholly in Montour SES's control to adjust unit operation to fit EPA's proposed model.” Homer City states that “operations today are, in large part, determined by PJM and are beyond control of the source operators” and that the proposed emissions limits would not accommodate emissions during “startups, shutdowns, and low-load operations directed by PJM.” Homer City also asserts that sometimes “[PJM's] direction requires Homer City to operate at levels . . . which [do] not allow for operation of the SCR.” Key-Con states that, “in general” dispatch of units in the PJM market “is controlled by PJM, not the EGU owner or operator.” Key-Con suggests EPA has assumed that unit owners can choose to ignore PJM's dispatch instructions. Key-Con also states that the proposed emission rates “will require Key-Con to forfeit most dispatch opportunities at lower electrical loads as directed by PJM and suffer resultant revenue impacts in order to maintain compliance with the limits.”

Response: The fact that PJM generally directs the day-to-day and hour-to-hour dispatch of the units subject to this rule is not in dispute, and any comments suggesting that EPA has assumed otherwise mischaracterize the proposal. 47 However, in EPA's view, the consequences that commenters assert could result from requirements to follow PJM's dispatch instructions are unrealistic because the commenters largely fail to acknowledge sources' considerable ability to influence those instructions through the offer prices and operating parameters that the sources provide to PJM for use in PJM's decision-making process. In particular, EPA does not agree with commenters' suggestions that PJM's dispatch instructions would create a material obstacle to the sources' efforts to comply with the limits in an economic manner. Rather, EPA believes it is entirely reasonable to assume, first, that the source owners will have the opportunity to consider their emission limits when developing the information they supply to PJM for use in PJM's decision-making process and, second, that PJM's subsequent dispatch instructions will consider the information supplied by the owners when determining the dispatch instructions. In other words, contrary to the commenter's suggestions, EPA believes that the sources' role as suppliers of inputs to PJM's decision-making process means that the sources in fact are well positioned to prevent PJM's dispatch instructions from interfering with the sources' compliance strategies.

A few examples of the information that sources can specify to PJM for use in PJM's decision-making illustrate how the sources covered by this rule could cause PJM to issue dispatch instructions that are generally compatible with what the source owners consider necessary to facilitate effective SCR operation. First, the operating parameters that a source can specify include “Economic Min (MW),” representing the owner's specification of “the minimum energy available, in MW, from the unit for economic dispatch” under non-emergency conditions. 48 If a source is concerned about the possibility that PJM otherwise might direct the unit to run extensively—for example, during all or most overnight off-peak hours—at low load levels that would be insufficient to maintain SCR inlet temperatures high enough for effective SCR performance, the source can avoid that outcome by specifying higher values for Economic Min (MW). Second, the operating parameters include “Ramp Rate (MW/Min),” representing the default rate, in MW per minute, for increasing or decreasing a unit's output. 49 If a source is concerned about the possibility that PJM would otherwise frequently direct the unit to increase or decrease its output at rates that would cause difficulty in sustaining consistent SCR performance, the source can avoid that outcome by specifying lower values for Ramp Rates. Third, sources can submit cost-based or price-based values for a variety of parameters associated with unit start-ups, such as “Cold Startup Cost,” “Intermediate Startup Cost,” and “Hot Startup Cost,” representing the cost-based or price-based offers for the source's compensation for each start-up, differentiated according to the unit's temperature before the start-up. 50 If a source believes that its compliance strategy should include efforts to reduce start-up emissions by substituting gas or oil for some of the coal that would otherwise be combusted during the start-up process, the source generally can revise its offered Startup Cost values to reflect any resulting changes in start-up fuel cost.

EPA recognizes that under certain emergency system conditions, PJM may issue dispatch instructions that reflect various “emergency” parameters rather than the parameters discussed above that would be used for economic dispatch under more typical system conditions. EPA further recognizes that dispatch instructions issued by PJM in an emergency could theoretically require a unit to temporarily operate in a manner that precludes effective SCR operation until the emergency ends or until PJM can implement alternative measures to address the emergency. EPA is also aware that PJM's procedures include lead times that may affect how soon sources could change certain elements of the information they provide to PJM for use in PJM's decision-making. However, EPA believes these considerations are sufficiently addressed by the fact that the emission rate limits established in this rule are defined as 30-day rolling averages and the fact that EPA is not making the requirements established in this rule effective until 180 days after the rule's effective date.

EPA found no information in the comments indicating that the sources could not improve their abilities to run their SCRs continuously or at improved overall emissions rates by taking advantage of opportunities to optimize the values they provide to PJM for offer prices and operating parameters, potentially including but not limited to Economic Min (MW), Ramp Rate (MW/Min), and Cold, Intermediate, and Hot Startup Cost. 51 Rather, in suggesting that PJM's dispatch instructions could conflict with the proposed emission limits, commenters relied solely on the fact that the sources generally must comply with PJM's instructions once the instructions are issued, with no discussion of the process by which PJM determines what its instructions should be and no discussion of the sources' own opportunities to influence that process. 52

Finally, EPA notes that changes in the emissions and operating data reported by the Conemaugh and Keystone units for the first half of the 2022 ozone season relative to the data reported by these units for the 2021 ozone season appear to corroborate EPA's understanding that sources have the ability to influence PJM's dispatch decisions. During the periods of the 2021 ozone season when these units operated, a frequent operating pattern for each of the units was to cycle between a full load level of approximately 900 MW during daytime peak hours and a lower load level of approximately 440 MW during overnight off-peak hours, running their SCRs at the higher daytime loads and turning off their SCRs at the lower nighttime loads. During the periods of the first half of the 2022 ozone season when the units operated, while they continued to display the same general daytime-nighttime cycling pattern, the load levels to which they cycled down overnight were higher than in 2021, apparently producing flue gas temperatures sufficient to allow the units to run their SCRs overnight. Specifically, during May and June 2022 the Conemaugh units generally cycled down to a load level of approximately 545 MW, and the Keystone units generally cycled down to a load level of approximately 700 MW. EPA believes the reason for the change in overnight load levels is that the sources must have provided higher values of Economic Min (MW) to PJM for use in making dispatch decisions during the 2022 ozone season. Taking such a step would have increased the likelihood that the units would be given dispatch instructions that would allow them to run their SCRs continuously and would have been a rational response by the sources to the higher reported NO X allowance prices during the 2022 ozone season. 53 In summary, EPA finds these comments unpersuasive when appropriately evaluated in the context of sources' extensive ability to influence PJM's decision-making, which is unchallenged in the comments.

After consideration of all public comments, the EPA is establishing the 30-day NO X Emission Rate Limits in Table 5 and Daily NO X Mass Emission Limits in Table 8 for the four facilities covered by this FIP to meet the statutory requirement to implement RACT for the 1997 and 2008 ozone NAAQS.

The limits in Table 5 are based on a 30-day rolling average, and apply at all times, including during operations when exhaust gas temperatures at the SCR inlet are too low for the SCR to operate, or operate optimally. As discussed in the proposal and in response to comments, a 30-day average “smooths” operational variability by averaging the current value with the prior values over a rolling 30-day period to determine compliance. While some period of lb/MMBtu values over the target rate can occur without triggering a violation, they must be offset by corresponding periods where the lb/MMBtu rate is lower than the compliance rate ( i.e., the 30-day rolling average rate).

To calculate the final 30-day rates, EPA used the same weighted rate methodology from the proposal, with three key changes. The data underlying the weighted rates calculation for each unit is shown in Table 6 below.

First, using information from the comments, EPA revised the SCR thresholds for certain sources. As explained previously, these thresholds are applied to the historical data set for the purpose of calculating SCR-on and SCR-off rates and weights to calculate the final weighted rates. EPA revised the thresholds for Homer City Units 1 and 2 and Montour Units 1 and 2. Homer City did not provide a revised threshold for Unit 3, so the same threshold from the proposal was used for the final calculation for that unit. Key-Con also did not provide updated thresholds for Keystone and Conemaugh, though their thresholds from the proposal were based on comments from Key-Con on the recommendation submitted to EPA by the Ozone Transport Commission (OTC) under CAA § 184(c). 54   55 Table 7 of this preamble shows the thresholds used for the final calculation. As previously discussed, based on additional information received during the public comment period, the thresholds for Homer City Units 1 and 2 increased slightly, while the thresholds for Montour increased more significantly, as compared to the proposal.

The threshold changes result in some changes to the data underlying the weighted rate calculation for Homer City Units 1 and 2 and Montour Units 1 and 2 from the proposal. 56 The changes to the SCR thresholds changed the SCR-on and -off rates for these units very slightly, as some hours went from being classified as SCR-on to SCR-off. The SCR-on and -off rates for the other units do not change from the proposal, and EPA is still using the rate based on the EGU's third-best ozone season average from 2003 to 2021 (second-best ozone season average for Conemaugh due to its more limited years of SCR data as compared to other units). The threshold changes altered the SCR-on and -off weights slightly for the Homer City units and substantially for the Montour units.

Second, while EPA is retaining the use of the third-best weight (the ozone season in which the EGU had its third highest proportion of heat input spent above the SCR threshold) from the period 2011 to 2021 for Homer City, Keystone, and Montour, EPA is using the second-best weight (the ozone season in which the EGU had its second highest proportion of heat input spent above the SCR threshold) for Conemaugh. As discussed previously in this action and in the proposal, Conemaugh installed its SCR much later than the other sources. In response to comments pointing out that Conemaugh's proposed limit was the highest despite having the newest SCR as well as to account for the more limited set of ozone seasons from which to draw data, the Agency believes it is reasonable to use the second-best weight instead of the third-best. EPA believes that the atypical result pointed out by the commenter stems mainly from the fact that using a third-best weight from a 7-year data set (as opposed to a third-best weight from an 11-year data set used for the other sources with more years of SCR data) would be more analogous to a mean rate, rather than the lowest rate the source was capable of achieving as RACT requires. Given EPA's determination, informed by the Court decision, that RACT should represent a better rate than a mean rate, we believe that for Conemaugh, the second-best weight would provide a more comparable weight, while still excluding the low end. This results in a tightening of Conemaugh's final limit, as compared to the proposal. EPA still believes it is reasonable to use the time period 2011 to 2021 from which to draw the weights for Homer City, Keystone, and Montour for the final limit. EPA re-examined the occurrence of cycling at these facilities and found that the drop in time spent above the SCR threshold begins within this time period for these sources.

Third, as discussed in section III of this preamble, because of the unit-specific nature of EPA's weighted rate analysis, the EPA expects that the unit-specific rates already represent RACT for each unit, and that the most appropriate basis for a facility-wide average would be the weighted rates for each of the units at the facility. Therefore, EPA is calculating the final facility-wide 30-day limits as an arithmetic average of the results of the weighted rates calculation for each unit at the facility, instead of applying the best unit-specific weighted rate facility-wide.

The final daily limits in Table 8, which complement the facility-wide 30-day rate and further ensure RACT is applied continuously, are calculated using the same methodology as the proposal but with the updated final 30-day limits as shown in Table 5 of this preamble. The final 30-day limits are multiplied by each unit's maximum permitted heat input (in MMBtu/hr) by 24 hours.

Based on the considerations outlined at proposal, consideration of all public comments, and for the reasons described in this action, EPA is establishing the 30-day NO X emission rate limits in Table 5 of this preamble, Daily NO X mass emission limits in Table 8 of this preamble, and accompanying regulatory language added to 40 CFR 52.2065, as major stationary source NO X RACT requirements for the 1997 and 2008 ozone NAAQS at four facilities in Pennsylvania: Conemaugh; Homer City; Keystone; and Montour.

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

This final action is a rule of particular applicability and therefore is exempt from Office of Management and Budget (OMB) review.

This proposed action does not impose an information collection burden under the provisions of the Paperwork Reduction Act (PRA). 57 A “collection of information” under the PRA means “the obtaining, causing to be obtained, soliciting, or requiring the disclosure to an agency, third parties or the public of information by or for an agency by means of identical questions posed to, or identical reporting, recordkeeping, or disclosure requirements imposed on, ten or more persons, whether such collection of information is mandatory, voluntary, or required to obtain or retain a benefit.”  58  Because this proposed rule includes RACT reporting requirements for four facilities, the PRA does not apply.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action does not affect small governmental jurisdictions or small organizations, and the affected entities are not small businesses as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201. Therefore, this action will not impose any requirements on small entities.

This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments.

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments,” requires the EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.”  59 This rule does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments. Thus, Executive Order 13175 does not apply to this rule.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it implements a previously promulgated health-based Federal standard. Further, the EPA believes that the ozone-related benefits from this final rule will further improve children's health.

This action is not subject to Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866.

This rulemaking does not involve technical standards.

Executive Order 12898 establishes Federal executive policy on environmental justice. 60 Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies and activities on minority populations and low-income populations in the United States.

The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898. EPA reviewed the Regulatory Impact Analysis (RIA) prepared for the recently proposed 2015 Ozone NAAQS transport FIP, and in particular the Ozone Exposure Analysis at section 7.4 of the RIA. 61 Although that analysis projected reductions in overall AS-MO3 ozone concentrations in each state for all affected demographic groups resulting from newly proposed limits on EGUs and non-EGUs (See Figure 7-3 of the RIA), it also found that emission reductions from only EGUs would result in national reductions in AS-MO3 ozone concentrations for all demographic groups analyzed (See Figure 7-2 of the RIA). In summation, based on the analysis contained in that RIA, EPA has concluded that the FIP is expected to lower ozone in many areas, including residual ozone nonattainment areas, and thus mitigate some pre-existing health risks of ozone across all populations evaluated (RIA, p. 7-32). Further, EPA reviewed an analysis of vulnerable groups near the Conemaugh, Homer City, and Keystone EGUs found in the TSD for EPA's proposed disapproval of the SO 2 attainment plan for the Indiana, PA SO 2 nonattainment area. 62

This rule is exempt from the CRA because it is a rule of particular applicability.

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 31, 2022. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.

This action setting RACT limits for certain EGUs in Pennsylvania may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as follows:

The Migratory Bird Treaty Act (MBTA) of July 3, 1918 (16 U.S.C. 703 et seq. ), authorizes and directs the Secretary of the Department of the Interior, having due regard for the zones of temperature and for the distribution, abundance, economic value, breeding habits, and times and lines of flight of migratory game birds, to determine when, to what extent, and by what means such birds or any part, nest, or egg thereof may be taken, hunted, captured, killed, possessed, sold, purchased, shipped, carried, exported, or transported.

In the June 14, 2022, Federal Register (87 FR 35942), we proposed special migratory bird hunting regulations for the 2022-23 hunting season for certain Indian Tribes, under the guidelines described in the June 4, 1985, Federal Register (50 FR 23467). The guidelines respond to Tribal requests for Service recognition of their reserved hunting rights, and for some Tribes, recognition of their authority to regulate hunting by both Tribal members and nonmembers on their reservations. The guidelines include possibilities for:

(1) On-reservation hunting by both Tribal members and nonmembers, with hunting by nontribal members on some reservations to take place within Federal frameworks but on dates different from those selected by the surrounding State(s);

(2) On-reservation hunting by Tribal members only, outside of usual Federal frameworks for season dates and length, and for daily bag and possession limits; and

(3) Off-reservation hunting by Tribal members on ceded lands, outside of usual framework dates and season length, with some added flexibility in daily bag and possession limits.

In all cases, the regulations established under the guidelines must be consistent with the March 10-September 1 closed season mandated by the 1916 Migratory Bird Treaty with Canada.

In the August 31, 2021, Federal Register (86 FR 48649), we requested that Tribes desiring special hunting regulations in the 2022-23 hunting season submit a proposal including details on:

(1) Harvest anticipated under the requested regulations;

(2) Methods that would be employed to measure or monitor harvest (such as bag checks, mail questionnaires, etc.);

(3) Steps that would be taken to limit level of harvest, where it could be shown that failure to limit such harvest would adversely impact the migratory bird resource; and

(4) Tribal capabilities to establish and enforce migratory bird hunting regulations.

No action is required if a Tribe wishes to observe the hunting regulations established by the State(s) in which an Indian reservation is located. We have successfully used the guidelines since the 1985-86 hunting season. We finalized the guidelines beginning with the 1988-89 hunting season (53 FR 31612, August 18, 1988).

The final rule described here is the final in the series of proposed and final rulemaking documents for migratory bird hunting regulations on certain Federal Indian reservations and ceded lands for the 2022-23 season. This rule sets hunting seasons, hours, areas, and limits for migratory game bird species on reservations and ceded territories. This final rule is the culmination of the rulemaking process for the Tribal migratory game bird hunting seasons, which started with the August 31, 2021, proposed rule. This final rule sets the migratory bird hunting regulations on certain Federal Indian reservations and ceded lands for the 2022-23 season.

Each year we publish reports that provide detailed information on the status and harvest of certain migratory game bird species. These reports are available at the address indicated under FOR FURTHER INFORMATION CONTACT or from our website at https://www.fws.gov/library/collections/population-status, or https://www.fws.gov/library/collections/migratory-bird-hunting-activity-and-harvest-reports .

We used the following annual reports published in August 2021 in the development of proposed frameworks for the migratory bird hunting regulations: Adaptive Harvest Management, 2022 Hunting Season; American Woodcock Population Status, 2021; Band-tailed Pigeon Population Status, 2021; Migratory Bird Hunting Activity and Harvest During the 2019-20 and 2020-21 Hunting Seasons; Mourning Dove Population Status, 2021; Status and Harvests of Sandhill Cranes, Mid-continent, Rocky Mountain, Lower Colorado River Valley and Eastern Populations, 2021; and Waterfowl Population Status, 2021.

Our long-term objectives continue to include providing opportunities to harvest portions of certain migratory game bird populations and to limit harvests to levels compatible with each population's ability to maintain healthy, viable numbers. Having taken into account the zones of temperature and the distribution, abundance, economic value, breeding habits, and times and lines of flight of migratory birds, we conclude that the hunting seasons provided for herein are compatible with the current status of migratory bird populations and long-term population goals. Additionally, we are obligated to, and do, give serious consideration to all information received during the public comment period.

For the 2022-23 migratory bird hunting season, we proposed regulations (87 FR 35942, June 14, 2022) for 29 Tribes or Indian groups that followed the 1985 guidelines and were considered appropriate for final rulemaking.

The comment period for the June 14, 2022, proposed rule closed on July 14, 2022. We received one comment on our proposed rule; the commenter requested not to allow the killing of migratory birds. The Service appreciates the opportunity to establish special migratory bird hunting regulations in recognition of the Tribes' reserved hunting rights, and for some Tribes, recognition of their authority to regulate hunting by both Tribal members and nonmembers on their reservations. We addressed this one comment in our final rule to set 2022-23 frameworks for migratory bird hunting regulations (87 FR 42598, July 15, 2022).

The programmatic document, “Second Final Supplemental Environmental Impact Statement: Issuance of Annual Regulations Permitting the Sport Hunting of Migratory Birds (EIS 20130139),” filed with the Environmental Protection Agency (EPA) on May 24, 2013, addresses NEPA compliance by the Service for issuance of the annual framework regulations for hunting of migratory game bird species. We published a notice of availability in the Federal Register on May 31, 2013 (78 FR 32686), and our record of decision on July 26, 2013 (78 FR 45376). We also address NEPA compliance for waterfowl hunting frameworks through the annual preparation of separate environmental assessments, the most recent being “Duck Hunting Regulations for 2022-23,” with its corresponding March 2022 finding of no significant impact. In addition, an environmental assessment entitled “Guidelines for Migratory Bird Hunting Regulations on Federal Indian Reservations and Ceded Lands” is available from the person listed above under the caption FOR FURTHER INFORMATION CONTACT .

Section 7 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq. ), provides that the Secretary shall insure that any action authorized, funded, or carried out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of critical habitat. After we published the August 31, 2021, proposed rule, we conducted formal consultations to ensure that actions resulting from these regulations would not likely jeopardize the continued existence of endangered or threatened species or result in the destruction or adverse modification of their critical habitat. Findings from these consultations are included in a biological opinion, which concluded that the regulations are not likely to jeopardize the continued existence of any endangered or threatened species. The biological opinion resulting from this section 7 consultation is available for public inspection at the address indicated under ADDRESSES .

Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) will review all significant rules. OIRA has determined that the annual migratory bird hunting regulations are significant because they have an annual effect of $100 million or more on the economy.

E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. E.O. 13563 directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

An economic analysis was prepared for the 2022-23 migratory bird hunting season. This analysis was based on data from the 2016 National Survey of Fishing, Hunting, and Wildlife-Associated Recreation (National Survey), the most recent year for which data are available (see discussion under Regulatory Flexibility Act, below). This analysis estimated consumer surplus for three alternatives for duck hunting regulations. As defined by OMB Circular A-4, consumers' surplus is the difference between what a consumer pays for a unit of a good or service and the maximum amount the consumer would be willing to pay for that unit. The duck hunting regulatory alternatives are (1) issue restrictive regulations allowing fewer days than those issued during the 2021-22 season, (2) issue moderate regulations allowing more days than those in alternative 1, and (3) issue liberal regulations similar to the regulations in the 2021-22 season. For the 2022-23 season, we chose alternative 3, with an estimated consumer surplus across all flyways of $329 million. We also chose alternative 3 for the 2009-10 through 2021-22 seasons. The 2022-23 analysis is part of the record for this rule and is available at https://www.regulations.gov at Docket No. FWS-HQ-MB-2021-0057.

The annual migratory bird hunting regulations have a significant economic impact on substantial numbers of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). We prepare regulatory flexibility analyses, updated annually, to analyze the economic impacts of the annual hunting regulations on small business entities. The primary source of information about hunter expenditures for migratory game bird hunting is the National Survey, which is generally conducted at 5-year intervals. The 2022 analysis is based on the 2016 National Survey and the U.S. Department of Commerce's County Business Patterns, from which it is estimated that migratory bird hunters would spend approximately $2.2 billion at small businesses in 2022. Copies of the analysis are available upon request from the person listed above under the caption FOR FURTHER INFORMATION CONTACT , or from https://www.regulations.gov at Docket No. FWS-HQ-MB-2021-0057.

This rule is a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. For the reasons outlined above, this rule will have an annual effect on the economy of $100 million or more. However, because this rule establishes hunting seasons, which are time sensitive, we do not plan to defer the effective date under the exemption contained in 5 U.S.C. 808(1).

This rule does not contain any new collection of information that requires approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). OMB has previously approved the information collection requirements associated with migratory bird surveys and the procedures for establishing annual migratory bird hunting seasons under the following OMB control numbers:

• 1018-0019, “North American Woodcock Singing Ground Survey” (expires 02/29/2024).

• 1018-0023, “Migratory Bird Surveys, 50 CFR 20.20” (expires 04/30/2023). Includes Migratory Bird Harvest Information Program, Migratory Bird Hunter Surveys, Sandhill Crane Survey, and Parts Collection Survey.

• 1018-0171, “Establishment of Annual Migratory Bird Hunting Seasons, 50 CFR part 20” (expires 10/31/2024).

You may view the information collection request(s) at http://www.reginfo.gov/public/do/PRAMain. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

We have determined and certify, in compliance with the requirements of the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that this rulemaking will not impose a cost of $100 million or more in any given year on local or State government or private entities. Therefore, this rule is not a “significant regulatory action” under the Unfunded Mandates Reform Act.

The Department, in promulgating this rule, has determined that this rule will not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of E.O. 12988.

In accordance with E.O. 12630, this rule, authorized by the Migratory Bird Treaty Act, does not have significant takings implications and does not affect any constitutionally protected property rights. This rule will not result in the physical occupancy of property, the physical invasion of property, or the regulatory taking of any property. In fact, this rule will allow hunters to exercise otherwise unavailable privileges and, therefore, will reduce restrictions on the use of private and public property.

E.O. 13211 requires agencies to prepare statements of energy effects when undertaking certain actions. While this rule is a significant regulatory action under E.O. 12866, it is not expected to adversely affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no statement of energy effects is required.

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), E.O. 13175, and 512 DM 2, we have evaluated possible effects on Federally recognized Indian Tribes and have determined that there are de minimis effects on Indian trust resources. We solicited proposals for special migratory bird hunting regulations for certain Tribes on Federal Indian reservations, off-reservation trust lands, and ceded lands for the 2022-23 migratory bird hunting season in the August 31, 2021, proposed rule (86 FR 48649). The resulting proposals were published in a separate proposed rule (87 FR 35942, June 14, 2022). Through this process to establish annual hunting regulations, we regularly coordinate with Tribes that are affected by this rule.

Due to the migratory nature of certain species of birds, the Federal Government has been given responsibility over these species by the Migratory Bird Treaty Act. We annually prescribe frameworks from which the States make selections regarding the hunting of migratory birds, and we employ guidelines to establish special regulations on Federal Indian reservations and ceded lands. This process preserves the ability of the States and Tribes to determine which seasons meet their individual needs. Any State or Tribe may be more restrictive in its regulations than the Federal frameworks at any time. The frameworks are developed in a cooperative process with the States and the Flyway Councils. This process allows States to participate in the development of frameworks from which they will make selections, thereby having an influence on their own regulations. These rules do not have a substantial direct effect on fiscal capacity, change the roles or responsibilities of Federal or State governments, or intrude on State policy or administration. Therefore, in accordance with E.O. 13132, these regulations do not have significant federalism effects and do not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

The rulemaking process for migratory game bird hunting, by its nature, operates under a time constraint as seasons must be established each year or hunting seasons remain closed. However, we intend that the public be provided extensive opportunity for public input and involvement in compliance with Administrative Procedure Act requirements (5 U.S.C. 551 et seq. ). Thus, when the preliminary proposed rulemaking was published on August 31, 2021 (86 FR 48649), we established what we concluded were the longest periods possible for public comment and the most opportunities for public involvement. We also provided notification of our participation in multiple Flyway Council meetings, opportunities for additional public review and comment on all Flyway Council proposals for regulatory change, and opportunities for additional public review during the Service Regulations Committee meeting. Therefore, sufficient public notice and opportunity for involvement have been given to affected persons regarding the migratory bird hunting frameworks for the 2022-23 hunting season.

For the reasons cited above, we find that “good cause” exists, within the terms of the Administrative Procedure Act at 5 U.S.C. 553(d)(3) for these regulations to take effect immediately upon publication.

Accordingly, with each participating Tribe having had an opportunity to participate in selecting the hunting seasons desired for its reservation or ceded territory on those species of migratory birds for which open seasons are now prescribed, and consideration having been given to all other relevant matters presented, certain sections of title 50, chapter I, subchapter B, part 20, subpart K, are hereby amended as set forth below.

On August 25, 2022, Shannon Estenoz, Assistant Secretary for Fish and Wildlife and Parks, approved this action for publication. On August 25, 2022, Shannon Estenoz also authorized the undersigned to sign this document electronically and submit it to the Office of the Federal Register for publication as an official document of the Department of the Interior.

Accordingly, part 20, subchapter B, chapter I of title 50 of the Code of Federal Regulations is amended as follows:

( Note: The following hunting regulations provided for by 50 CFR 20.110 will not appear in the Code of Federal Regulations because of their seasonal nature).

The Gulf reef fish fishery, which includes red snapper, is managed under the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP). The FMP was prepared by the Gulf of Mexico Fishery Management Council and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

The final rule implementing Amendment 40 to the FMP established two components within the recreational sector fishing for Gulf red snapper: the private angling component, and the Federal for-hire component (80 FR 22422, April 22, 2015). Amendment 40 also allocated the red snapper recreational ACL (recreational quota) between the components and established separate seasonal closures for the two components. On February 6, 2020, NMFS implemented Amendments 50 A-F to the FMP, which delegated authority to the Gulf states (Louisiana, Mississippi, Alabama, Florida, and Texas) to establish specific management measures for the harvest of red snapper in Federal waters of the Gulf by the private angling component of the recreational sector (85 FR 6819, February 6, 2020). These amendments allocate a portion of the private angling ACL to each state, and each state is required to constrain landings to its allocation.

As described at 50 CFR 622.23(c), a Gulf state with an active delegation may request that NMFS close all, or an area of, Federal waters off that state to the harvest and possession of red snapper by private anglers. The state is required to request the closure by letter to NMFS, providing dates and geographic coordinates for the closure. If the request is within the scope of the analysis in Amendment 50A, NMFS publishes a notice in the Federal Register implementing the closure for the fishing year. Based on the analysis in Amendment 50A, Texas may request a closure of all Federal waters off the state to allow a year-round fishing season in state waters. As described at 50 CFR 622.2, “off Texas” is defined as the waters in the Gulf west of a rhumb line from 29°32.1′ N lat., 93°47.7′ W long. to 26°11.4′ N lat., 92°53′ W long., which line is an extension of the boundary between Louisiana and Texas.

On December 3, 2021, NMFS received a request from the Texas Parks and Wildlife Department (TPWD) to close the EEZ off Texas to the red snapper private angling component for the first part of the 2022 fishing year. Texas requested that the closure be effective from January 1, 2022, until June 1, 2022. NMFS determined that the TPWD request was within the scope of analysis contained within Amendment 50A, and subsequently published a temporary rule in the Federal Register implementing that closure request (86 FR 70985, December 14, 2021). In that temporary rule, NMFS noted that TPWD would monitor private recreational landings, and if necessary, request that NMFS again close the EEZ in 2022 to ensure the Texas regional management area ACL is not exceeded.

On August 24, 2022, NMFS received a new request from the TPWD to close the EEZ off Texas to the red snapper private angling component for the remainder of the 2022 fishing year. Texas requested that the closure be effective on September 3, 2022, through the end of the 2022 fishing year. NMFS has determined that this request is within the scope of analysis contained within Amendment 50A, which analyzed the potential impacts of a closure of all Federal waters off Texas when a portion of the Texas quota has been landed. As explained in Amendment 50A, Texas intends to maintain a year-round fishing season in state waters, during which the remaining part of Texas' ACL could be caught.

Therefore, the red snapper recreational private angling component in the Gulf EEZ off Texas will close from 12:01 a.m., local time, on September 3, 2022, until 12:01 a.m., local time, on January 1, 2023. This closure applies to all private-anglers (those on board vessels that have not been issued a valid charter vessel/headboat permit for Gulf reef fish) regardless of which state they are from or where they intend to land.

On and after the effective dates of the closure in the EEZ off Texas, the harvest and possession of red snapper in the EEZ off Texas by the private angling component is prohibited and the bag and possession limits for the red snapper private angling component in the closed area is zero.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR 622.23(c), which was issued pursuant to section 304(b) of the Magnuson-Stevens Act, and is exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment are unnecessary and contrary to the public interest.

Such procedures are unnecessary because the rule implementing the area closure authority and the state-specific private angling ACLs has already been subject to notice and comment, and all that remains is to notify the public of the closure. Such procedures are contrary to the public interest because a failure to implement the closure immediately would be inconsistent with Texas's state management plan and may result in less access to red snapper in state waters.

For the aforementioned reasons, there is good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).

The snapper-grouper fishery of the South Atlantic includes blueline tilefish and is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The South Atlantic Fishery Management Council and NMFS prepared the FMP, and the FMP is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622. All weights in this temporary rule are given in round weight.

As specified at 50 CFR 622.193(z)(1)(i), the commercial ACL for blueline tilefish is 117,148 lb (53,137 kg). The commercial accountability measure for blueline tilefish requires NMFS to close the commercial sector when its ACL is reached, or is projected to be reached, by filing a notification to that effect with the Office of the Federal Register. NMFS has projected that for the 2022 fishing year, the commercial ACL for South Atlantic blueline tilefish will be reached by September 3, 2022. Accordingly, the commercial sector for South Atlantic blueline tilefish is closed effective at 12:01 a.m., eastern time, on September 3, 2022, through December 31, 2022.

During the commercial closure, all sale or purchase of blueline tilefish is prohibited. The operator of a vessel with a valid Federal commercial vessel permit for South Atlantic snapper-grouper having blueline tilefish on board must have landed and bartered, traded, or sold such blueline tilefish prior to September 3, 2022.

In addition, recreational harvest for blueline tilefish closed on July 26, 2022, and the bag and possession limits are zero (87 FR 18739, March 31, 2022). Therefore, during the commercial closure for blueline tilefish, all harvest, possession, purchase, and sale of blueline tilefish in or from the South Atlantic EEZ is prohibited for the remainder of the 2022 fishing year. These restrictions for blueline tilefish apply in both state and Federal waters of the South Atlantic on board a vessel with a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper [50 CFR 622.193(z)(1)(i)].

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR 622.193(z)(1)(i), which was issued pursuant to section 304(b) of the Magnuson-Stevens Act, and is exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment is unnecessary and contrary to the public interest. Such procedures are unnecessary because the regulations associated with the closure of the blueline tilefish commercial sector at 50 CFR 622.193(z)(1)(i) have already been subject to notice and public comment, and all that remains is to notify the public of the closure. Prior notice and opportunity for public comment are contrary to the public interest because there is a need to immediately implement this action to protect blueline tilefish, because the capacity of the fishing fleet allows for rapid harvest of the commercial ACL. Prior notice and opportunity for public comment would require time and would potentially result in a harvest well in excess of the established commercial ACL.

For the reasons stated earlier, the Assistant Administrator also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).

Authority: 16 U.S.C. 1801 et seq.

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. Regulations governing sideboard protections for GOA groundfish fisheries appear at subpart B of 50 CFR part 680.

The 2022 Pacific cod total allowable catch (TAC) apportioned to trawl catcher vessels in the Western Regulatory Area of the GOA is 2,579 metric tons (mt), as established by the final 2022 and 2023 harvest specifications for groundfish of the GOA (87 FR 11599, March 2, 2022).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator) has determined that the 2022 Pacific cod TAC apportioned to trawl catcher vessels in the Western Regulatory Area of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 2,379 mt and is setting aside the remaining 200 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by catcher vessels using trawl gear in the Western Regulatory Area of the GOA. While this closure is effective the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

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

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the directed fishing closure of Pacific cod by catcher vessels using trawl gear in the Western Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of August 25, 2022.

The Assistant Administrator for Fisheries, NOAA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

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

The 2022 Pacific cod total allowable catch (TAC) apportioned to catcher vessels using HAL gear in the Western Regulatory Area of the GOA is 94 metric tons (mt) as established by the final 2022 and 2023 harvest specifications for groundfish in the GOA (87 FR 11599, March 2, 2022). The Regional Administrator has determined that the 2022 TAC apportioned to catcher vessels using HAL gear in the Western Regulatory Area of the GOA is necessary to account for the incidental catch of this species in other anticipated groundfish fisheries for the 2022 fishing year. Therefore, in accordance with § 679.20(d)(1)(i), the Regional Administrator establishes the directed fishing allowance for catcher vessels using HAL gear in the Western Regulatory Area of the GOA as zero mt. Consequently, in accordance with § 679.20(d)(1)(iii), NMFS is prohibiting directed fishing for catcher vessels using HAL gear in the Western Regulatory Area of the GOA.

While this closure is effective, the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

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

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of Pacific cod by catcher vessels using HAL gear in the Western Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of August 25, 2022.

The Assistant Administrator for Fisheries, NOAA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

Authority: 16 U.S.C. 1801 et seq.