Background

On December 13, 2023, the Drug Enforcement Administration (DEA) published a Notice of Proposed Rulemaking (NPRM) in the Federal Register (88 FR 86278) to place two phenethylamine hallucinogen substances in schedule I of the Controlled Substances Act (CSA) (21 U.S.C. 801, et seq. ). Specifically, in this NPRM, DEA proposed to schedule the following two controlled substances in schedule I of the CSA, including their salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation:

• 2,5-dimethoxy-4-iodoamphetamine (DOI), and

• 2,5-dimethoxy-4-chloroamphetamine (DOC).

On April 9, 2024, DEA published a Notice of Hearing on Proposed Rulemaking (Notice of Hearing) in the FR (89 FR 24750) stating that a hearing would commence on June 10, 2024. Subsequently, a collateral matter was filed in a U.S. District Court and the DEA Administrative Law Judge stayed the administrative hearing proceedings pending a decision from the U.S. District Court. As the matter before DEA is currently stayed, no hearing will commence on June 10, 2024.

This document of the Drug Enforcement Administration was signed on June 3, 2024, by Administrator Anne Milgram. That document with the original signature and date is maintained by DEA. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DEA Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of DEA. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

I. Public Participation and Comments

We encourage you to submit comments or related material responding to this request for information. The Coast Guard views public participation as essential to understanding the recordkeeping and reporting requirements for documenting environmental compliance. We consider all submissions and may adjust agency policy based on your feedback. If you submit a comment, please include the docket number for this notice (USCG-2024-0046), indicate the specific section of this document to which each comment applies, and provide a detailed description of the issues, the reasoning, and suggestion or recommendations for solutions.

Methods for submitting comments. We encourage you to submit comments through the Federal Decision-Making Portal at www.regulations.gov. To do so, go to www.regulations.gov, type USCG-2024-0046 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 your material cannot be submitted using www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

Viewing material in the docket. Public comments will be placed in our online docket at www.regulations.gov and can be viewed by following that website's instructions, provided on its Frequently Asked Questions page. We review all comments received, but we will only post comments that address the topic of this request for information. We may choose not to post off-topic, inappropriate, or duplicate comments that we receive.

The Coast Guard will carefully consider each comment received, but may not issue separate responses. The Coast Guard may also propose regulatory changes or update guidance related to this topic. If the Coast Guard were to undertake any regulatory or guidance changes as a result of comments received, those changes would be announced separately.

Personal information. We accept anonymous comments. Comments we post to 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 the Department of Homeland Security's (DHS) eRulemaking System of Records notice (85 FR 14226, March 11, 2020).

On March 23, 2012, the Coast Guard published a final rule about vessel ballast water management, titled “Standards for Living Organisms in Ships' Ballast Water Discharge in U.S. Waters” (77 FR 17254), which became effective on June 21, 2012. On November 24, 2015, the Coast Guard published a final rule amending the reporting and recordkeeping requirements to simplify and streamline the reporting process (80 FR 73105). Those amendments became effective on February 22, 2016. These regulations, codified in 33 CFR part 151, require vessel owners or operators to submit reports to the National Ballast Information Clearinghouse (NBIC). These reports must include, among other information, the number of ballast water tanks, the total ballast water capacity, and primary port of ballast water loading and discharge for each voyage. The Coast Guard uses this information to understand ballasting patterns in the waters of the United States and evaluate the effectiveness of regulations and guidance. The Coast Guard also uses this information to ensure that ballast water is managed in accordance with the regulatory requirements outlined in 33 CFR 151.1510.

On April 12, 2013, the Environmental Protection Agency (EPA) published its Notice of final permit issuance, titled Final National Pollutant Discharge Elimination System (NPDES) General Permit for Discharges Incidental to the Normal Operation of a Vessel (78 FR 21938). The notice finalizes Vessel General Permit (VGP) requirements for certain commercial vessels that are 79 feet or longer operating within waters of the United States. The VGP requirements do not apply to fishing vessels (except for ballast water), recreational vessels as defined in section 502(25) of the Clean Water Act (CWA) (33 U.S.C. 1362), or vessels of the Armed Forces as defined in CWA section 312(a)(14) (33 U.S.C. 1322).

The VGP requires vessel owners or operators to monitor vessel discharges, retain records necessary to demonstrate compliance, and submit an annual report to the EPA. This annual report is currently electronically submitted to the EPA by uploading a datasheet or manually completing an online form. In the report, vessel owners or operators must:

1. Identify the regions of the United States where the vessel operated during the year;

2. Provide details about the vessel, vessel discharges, and onboard pollution control devices;

3. Provide details of required sampling and inspection; and

4. Identify any instances of noncompliance with the permit requirements.

The EPA uses this information to assess compliance with permit requirements. The Coast Guard also uses this information to assist EPA with compliance under the VGP as detailed in the February 11, 2011, memorandum of understanding between the Coast Guard and the EPA (available in the docket for this notice, see the Public Participation and Comments section of this preamble.).

Electronic reporting systems have become more user-friendly, powerful, efficient, intelligent, and secure since the 2012 and 2015 ballast water final rules and VGP were issued. The Coast Guard hopes to leverage these advances to improve the environmental compliance reporting processes, reduce the reporting burden, streamline procedures, and encourage direct entry into Federal data systems. These centrally housed systems facilitate consistent data analysis, policy development, and public transparency and access.

The Coast Guard seeks information, comments, and suggestions about the convenience, costs, time spent, content, applicability, and functionality of the current EPA and Coast Guard monitoring, recordkeeping, and reporting procedures. Questions are divided into four categories pertaining to the vessel's VGP annual report, including the Discharge Monitoring Report (DMR) required by the EPA, and the vessel's ballast water management reporting form (see OMB number 1625-0069) required by the Coast Guard:

A. General question;

B. Information collection;

C. Compiling data and preparing reports; and

D. Submission of reports.

The purpose of these questions is to obtain details on the resources needed to collect, document, compile, and report information, and to solicit comments on existing electronic reporting systems to identify opportunities to streamline any future Coast Guard monitoring, recordkeeping, and reporting activities. The questions below illustrate the type of information sought by the Coast Guard and are intended to help guide your responses.

Please respond to as many questions as you like. We ask that you provide as much specificity and rationale as possible to explain your responses and suggestions and, in particular, whether your responses relate to the EPA VGP, Coast Guard ballast water management reporting requirements, or both.

What amount of time and resources are devoted per vessel to monitoring, recordkeeping, compiling data, and preparing reports to comply with the EPA's VGP and the Coast Guard's ballast water management requirements? Please provide information about who collects this information, such as the Master, environmental compliance officer, or vessel operator, and the amount of time these individuals spend on the different elements of this activity.

(1) Do you recommend any specific improvements for completing the vessel's ballast water management reporting form for submission to the NBIC and why? Please provide details.

(2) Based on your current experience with collecting information for the EPA's VGP via the Electronic Notice of Intent (eNOI) application, do you recommend any specific improvements to a potential future compliance and enforcement data system and why? Please provide details.

(1) Based on your current user experience with the instructions provided on the vessel's VGP annual report and the vessel's ballast water management reporting form, what improvements to a potential future compliance and enforcement data system do you recommend? Please provide details.

(2) Based on your current user experience with completing the vessel's VGP annual report and the vessel's ballast water management reporting form, what improvements to a potential future compliance and enforcement data system do you recommend? Please provide details.

(3) Are there any other types of software, in addition to using Microsoft Office file formats, that you use for compiling EPA's VGP information? Please provide details.

(4) Does your vessel owner or operator prepare the vessel's VGP annual report, including DMR data, locally or is information compiled using other means and forwarded to a central location or separate office? Please provide details.

(5) Based on your current user experience with compiling and preparing information for submission to either the EPA's VGP eNOI application or to the NBIC, are there any specific improvements to any potential future compliance and enforcement data system you recommend? Please provide details.

(1) What improvements with submitting the vessel's ballast water management reporting form do you recommend? Please provide details.

(2) Are there are any specific improvements you suggest for submitting information to the NBIC website? Please provide details and examples of what works well and data fields that could be improved for ease of submission.

(3) Based on your user experience with completing and submitting the vessel's VGP annual report, including any DMR data, what recommendations do you have for any potential future compliance and enforcement data system? Please provide details.

(4) Based on your user experience with the EPA's VGP eNOI system and the submission process (including data verification) for the annual report, what recommendations do you have for any potential future compliance and enforcement data system? Please provide details and examples of what works well.

Invitation to Comment: We invite you to submit comments regarding the proposed priorities, requirements, and definitions. To ensure that your comments have maximum effect in developing the final priorities, requirements, and definitions, we urge you to clearly identify the specific section of the proposed priorities, requirements, and definitions that each comment addresses.

We invite you to assist us in complying with the specific requirements of Executive Orders 12866, 13563, and 14094 and their overall requirement of reducing regulatory burden that might result from these proposed priorities, requirements, and definitions. Please let us know of any further ways we could reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the program.

During and after the comment period, you may inspect public comments about the proposed priorities, requirements, and definitions by accessing Regulations.gov . To inspect comments in person, please contact the person listed under FOR FURTHER INFORMATION CONTACT .

Assistance to Individuals with Disabilities in Reviewing the Rulemaking Record: On request we will provide an appropriate accommodation or auxiliary aid to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for these proposed priorities, requirements, and definitions. If you want to schedule an appointment for this type of accommodation or auxiliary aid, please contact the person listed under FOR FURTHER INFORMATION CONTACT .

Purpose of Program: The purpose of the PSSG program is to equitably improve postsecondary student outcomes, including retention, upward transfer, and completions of value, by leveraging data and implementing, scaling, and rigorously evaluating evidence-based activities to support data-driven decisions and actions that lead to credentials that support economic success and further education.

Program Authority: 20 U.S.C. 1138-1138d.

We propose five priorities. We may use one or more of these priorities in any year in which this program is in effect.

In today's economy, 67 percent of U.S. jobs require a postsecondary credential, and by 2031, this percentage is projected to grow to 71 percent. 1 Data show that as educational attainment increases, median earnings steadily increase. 2 One in three first-time students at two-year colleges, and two in three first-time students at four-year colleges, graduate from the first institution they attend within three and six years respectively. 3 Students from low-income backgrounds, first-generation students, students of color, adult students, students with disabilities, veterans, and other students who have been historically underserved in postsecondary education often fare worse. 4 It is critical for institutions of higher education (IHEs) to provide student support systems to improve retention, progression, and completion rates for all students, while decreasing economic and social equity gaps for students of color and students from low-income backgrounds.

Students of color and students from low-income backgrounds still face barriers to successfully enrolling in and completing college. 5 6 Between 2018 and 2022, there was a seven percent decrease in undergraduate enrollment overall, but larger decreases for Black (8 percent), American Indian/Alaska Native (10 percent) students, and Pacific Islander students (13 percent). From 2018 to 2022, there also has been a decrease in enrollment for Pell Grant recipients (13 percent). 7 In addition, while graduation rates (within 6 years after entry) have increased in four-year institutions overall (5.2 percentage points) since 2015 (2009 cohort), double-digit graduation rate gaps between some underrepresented students of color and White students remain ( e.g., 22 percentage point gap for Black students), and there is a 17 percentage point gap in completers (within 8 years after entry) between Pell and non-Pell full-time, first-time students in public four-year institutions. 8 The same issues are occurring in two-year institutions, with a modest overall graduation rate (within 3 years after entry) increase (3.1 percentage points) since 2012 (2009 cohort), but declining rates for Black and Hispanic students, which has increased the graduation gap between White students and some underrepresented students of color. 9

Furthermore, as more underserved students attend college, additional and different resources are often required to support them in successfully completing their credentials. Today, 25 percent of postsecondary students are age 25 or older, 10 about 70 percent of students work while enrolled, 11 and 22 percent of students are parents. 12 At public, 2-year degree-granting institutions, 31 percent of students enrolled are age 25 or older, 13 and 42 percent of all student parents attend community colleges. 14

Research has found that IHEs can employ a multifaceted and integrated approach and mitigate the barriers that hinder students in their educational trajectories, by addressing academic, financial, and other challenges. 15 Moreover, IHEs that have improved completion rates, including for underserved students, use timely, disaggregated, actionable data to identify institutional barriers to student success, implement interventions, and evaluate impact on an ongoing basis. 16 Institutional leadership is critical to ensure that the student experience is intentionally designed to increase student retention, progression, and completion rates. 17

The first three proposed priorities in this document would establish a multitier structure to enable the Department to link the amount of funding an applicant may receive to the quality of evidence supporting the efficacy of a proposed project and to the proposed project's plan to scale the evidence-based strategy. This approach would enable the Department to meet the congressional intent outlined in the House Report 117-403 and the explanatory statement accompanying Division H of the Consolidated Appropriations Act, 2023 (117 Pub. L. 328) to execute the grant program as a tiered-evidence competition in the same structure as the Education Innovation and Research (EIR) program. Congress continued this directive to the Department through the explanatory statement accompanying Division D of the Further Consolidated Appropriations Act, 2024 (118 Pub. L. 47). The first proposed priority would give the Department the flexibility to select either Demonstrates a Rationale or Promising Evidence as the applicable evidence standard for Early Phase grants in a particular competition. The second and third proposed priorities would establish the applicable evidence and scale requirements for Mid Phase and Expansion Phase grants. The Department is particularly interested in receiving comments on our proposed scale requirements under these two priorities, which have been determined by taking into consideration prior grantee awards.

The fourth proposed priority would establish a priority for applicants who use data for continuous improvement in their programs. The fifth proposed priority would incentivize strategies that focus on credentials that lead to career outcomes that support graduates' economic success.

Proposed Priority 1—Early Phase.

Projects that are designed to improve postsecondary success for underserved students, including retention, upward transfer, and completions of value that lead to economic success and/or further education, and are supported by evidence that meets the definition of Demonstrates a Rationale (as defined in 34 CFR 77.1) or Promising Evidence (as defined in 34 CFR 77.1).

Proposed Priority 2—Mid-Phase: Projects Supported by Moderate Evidence.

Projects that are designed to improve success for underserved students, including retention, upward transfer, and completions of value that lead to economic success and/or further education, and are supported by evidence that meets the definition of Moderate Evidence (as defined in 34 CFR 77.1). Projects under this priority must be implemented at multiple institutions of higher education or multiple campuses of the same institution and propose to serve at least 2,000 students.

Proposed Priority 3—Expansion: Projects Supported by Strong Evidence.

Projects that are designed to improve postsecondary success for underserved students, including retention, upward transfer, and completions of value that lead to economic success and/or further education, and are supported by evidence that meets the definition of Strong Evidence (as defined in 34 CFR 77.1). Projects under this priority must be implemented at multiple institutions of higher education and propose to serve at least 10,000 students.

Proposed Priority 4—Using Data for Continuous Improvement.

Projects that propose to build upon demonstrated progress toward improved student outcomes, or that propose a plan to improve student outcomes, for underserved students by using data to continually assess and improve the outcomes associated with funded activities and sustain data-driven continuous improvement processes at the institution after the grant period.

Applicants addressing this priority must—

(a) Identify, or describe how they will develop, the performance and outcome measures they will use to monitor and evaluate implementation of the intervention(s), including baseline data, intermediate and annual targets, and disaggregation by student subgroups;

(b) Describe how they will assess and address gaps in current data systems, tools, and capacity, and how they will monitor and respond to performance and outcome data to improve implementation of the intervention(s) on an ongoing basis and as part of formative and summative evaluation of the intervention(s); and

(c) Describe how institutional leadership will be involved with, and supportive of, project leadership and how the project relates to the institution's broader student success priorities and improvement processes.

Proposed Priority 5—Projects That Support College-to-Career Pathways and Supports.

Projects that propose to build upon demonstrated progress toward integrating, or that propose a plan to integrate, career-connected learning and advising support into their postsecondary success strategies to ensure students earn credentials of value that lead to economic success and/or further education that leads to career progression. Projects may include aligning academic coursework with career pathways and outcomes; developing and implementing program-level credential maps to create college-to-career pathways, including across institutions via transfer; integrating career planning, counseling, and coaching into holistic advising support; offering work-based learning opportunities aligned with students' programs of study; and providing navigation support to help graduates transition from college to career.

When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the Federal Register . The effect of each type of priority follows:

Absolute priority: Under an absolute priority, we consider only applications that meet the priority (34 CFR

75.105(c)(3)).

Competitive preference priority: Under a competitive preference priority, we give competitive preference to an application by (1) awarding additional points, depending on the extent to which the application meets the priority (34 CFR 75.105(c)(2)(i)); or (2) selecting an application that meets the priority over an application of comparable merit that does not meet the priority (34 CFR 75.105(c)(2)(ii)).

Invitational priority: Under an invitational priority, we are particularly interested in applications that meet the priority. However, we do not give an application that meets the priority a preference over other applications (34 CFR 75.105(c)(1)).

The Department proposes the following program requirements for this program. We may apply one or more of these requirements in any year in which this program is in effect and may limit the application of these requirements to one or more of the proposed priorities. The Department will announce within the notice inviting applications the final requirements that will apply to a particular grant competition, and whether those requirements will apply to grantees applying under each proposed priority for this program.

Proposed Requirement-1—Uses of Funds.

Background: PSSG is funded under the Fund for the Improvement of Postsecondary Education (FIPSE) authority and was first authorized in FY 2023 as described in the explanatory statement accompanying Division H of the Consolidated Appropriation Act, 2023 (117 Pub. L. 328). In order to fully implement this program in the manner that Congress has directed, the Department proposes Uses of Funds to clarify to applicants and grantees flexibility, where applicable, and also specificity about the allowable activities under this program. The Department believes each of these activities would support the overall goal of the PSSG program.

Proposed Requirement 1 would also clarify flexibility around using PSSG funding to provide financial assistance to students. Many of the strategies that meet the Moderate and Strong Evidence standard, including the evidence-based interventions explicitly mentioned in the explanatory statement, include financial assistance as a key project component. The Department believes that this program cannot fulfill congressional intent without providing the flexibility to use funding for this activity. We do, however, note that under section 741(d) of the Higher Education Act of 1965, as amended (HEA) these funds cannot be used to provide direct financial assistance to students who do not meet the eligibility requirements of section 484(a).

Program funds must be used for one or more of the following allowable uses of funds:

(a) Developing and using data systems, tools, and training to implement data-driven processes and interventions as part of a comprehensive continuous improvement effort; and

(b) Implementing student success strategies, including whole-college improvement models such as Guided Pathways; course redesign to implement co-requisite remediation or career-connected math pathways; intensive, integrated advising models including program maps with progress checks, case management approaches, and coaching; financial support, including need-based aid, emergency aid, and basic needs and behavioral health support and services; transfer support (as applicable), including four-year transfer maps, co-enrollment and co-advising across institutions, and regional transfer partnerships; career support, including integrated career planning, counseling, and coaching, work-based learning opportunities, and college-to-career navigation support; or other evidence-based student success strategies.

Proposed Requirement 2—Indirect Cost Rate Information.

Background: To maximize the grant resources that support direct costs, the Department is proposing to limit indirect costs to eight percent of a modified total direct cost base.

A grantee's indirect cost reimbursement is limited to eight percent of a modified total direct cost base. For more information regarding indirect costs, or to obtain a negotiated indirect cost rate, please see www.ed.gov/about/offices/list/ocfo/intro.html.

Proposed Requirement 3—Matching Requirements and Exceptions.

Background: The Department proposes to require that grantees provide a ten percent match of non-Federal to Federal contributions. This proposed requirement is intended to leverage the Federal funds and to ensure alignment of such activities to the institution's strategic plan. The Department also proposes waiver authority so that institutions located in high-poverty areas, that enroll high numbers of low-income students, or that are otherwise under-resourced such that complying with this matching requirement would be overly burdensome, can still benefit from this program.

Proposed Requirement 3:

(a) Matching Requirement. Grantees must provide a ten percent match, which may include in-kind donations.

(b) Waiver Authority. The Secretary may waive the matching requirement on a case-by-case basis upon a showing of any of the following exceptional circumstances:

(1) The difficulty of raising matching funds for a program to serve as an area with high rates of poverty in the lead applicant's geographic location, defined as a Census tract, a set of contiguous Census tracts, an American Indian Reservation, Oklahoma Tribal Statistical Area (as defined by the U.S. Census Bureau), Alaska Native Village Statistical Area or Alaska Native Regional Corporation Area, Native Hawaiian Homeland Area, or other Tribal land or county that has a poverty rate of at least 25 percent as determined every 5 years using American Community Survey 5-Year data;

(2) Serving a significant population of students from low-income backgrounds at the lead applicant location, defined as at least 50 percent (or the eligibility threshold for the appropriate institutional sector available at https://www2.ed.gov/about/offices/list/ope/idues/eligibility.html#app ) of degree-seeking enrolled students receiving need-based grant aid under title IV of the HEA; or

(3) Significant economic hardship as demonstrated by low average educational and general expenditures per full-time equivalent undergraduate student at the lead applicant institution, in comparison with the average educational and general expenditures per full-time equivalent undergraduate student of institutions that offer similar instruction without need of a waiver, as determined by the Secretary in accordance with the annual process of designation of title III and title V institutions.

Proposed Requirement 4: Limitation on Grant Award s.

Background: The Department proposes to allow the Secretary, in a given PSSG competition, to limit eligibility for new awards to applicants without current active grants under this program. The Department believes that this proposed requirement is necessary to support the program's evidence-building objective by ensuring the integrity of the project evaluations funded under this program. Supporting multiple PSSG projects for the same grantee could introduce bias that would negatively impact the quality of the evaluations. For example, if project participants receive support under multiple PSSG grants, the evaluation of the PSSG-supported strategies may overstate the results of a specific project. Similarly, if students in the comparison group for one PSSG project are receiving services under a separate PSSG project, then the evaluation of the initial project could understate the impact of the intervention.

The Department will make awards to only applicants that are not the individual or lead applicant in a current active grant from the PSSG grant program.

Proposed Requirement 5: Supplement-not-Supplant.

Background: The Department recognizes that many institutions are engaged in efforts to increase postsecondary success for their students using both Federal and non-Federal funding. To ensure that the PSSG funding does not either duplicate or replace, but instead augments such efforts, we are proposing a supplement-not-supplant requirement.

Grant funds must be used so that they supplement and, to the extent practical, increase the funds that would otherwise be available for the activities to be carried out under the grant and in no case supplant those funds.

Proposed Requirement 6: Independent Evaluation.

Background: The Department proposes to require grantees to conduct an independent evaluation of the project and submit the evaluation report to ERIC, the Department of Education's comprehensive bibliographic and full-text database of education research and information, sponsored by the Institute of Education Sciences (IES). ERIC is available at https://eric.ed.gov. This proposed requirement would enable the Department to meet the congressional intent outlined in the House Report 117-403 and the Explanatory Statement accompanying Division H of the Consolidated Appropriations Act, 2023 (Pub. L. 117-328) that all grantees carry out rigorous independent evaluations of their projects. By requiring timely sharing of the evaluations with IES so that the evaluations can be reviewed by the What Works Clearinghouse, the Department would meet its goals of both supporting the implementation of evidence-based interventions and building the evidence base about what works to improve retention, upward transfer, and completions of value that lead to economic success and/or further education.

Grantees must conduct an independent evaluation of the effectiveness of the project and submit the evaluation report to ERIC, available at https://eric.ed.gov/, in a timely manner.

Proposed Requirement 7: Eligible Entities.

Background: The Department proposes limiting eligibility to institutions that are designated as eligible under the HEA titles III and V programs, nonprofits that are not IHEs or associated with an IHE in partnership with institutions that are designated as eligible under the HEA titles III and V programs, States in partnerships with institutions that are designated as eligible under the HEA titles III and V programs, and systems of public institutions of higher education. Institutions designated as eligible under titles III and V include Historically Black Colleges or Universities (HBCUs), Tribally Controlled Colleges or Universities (TCCUs), Minority-Serving Institutions (MSIs), and other institutions with high enrollment of needy students and below average full-time equivalent (FTE) expenditures, including community colleges. The Department believes that targeting funding to these IHEs is the best use of the available funding because these institutions disproportionately enroll students from groups who are underrepresented among college completers, such as low-income students. Supporting retention, upward transfer, and completion strategies at these institutions offers the greatest potential to close gaps in postsecondary outcomes and to increase economic mobility in this country. Additionally, these under-resourced institutions are most in need of Federal assistance to implement and evaluate evidence-based postsecondary college retention, upward transfer, and completion interventions.

Eligible entities are title III or V institutions; nonprofits in partnership with title III or V institutions; States in partnership with title III or V institutions; or systems of public institutions of higher education.

The Department proposes the following definitions for this program. We propose to define “English learner,” “Historically Black College or University,” “minority-serving institution,” “Tribal College or University,” and “underserved student” similarly to the definitions in the Secretary's Supplemental Priorities and Definitions for Discretionary Grant Programs published in the Federal Register on December 10, 2021 (86 FR 70612). The Department also proposes a novel definition of “students with disabilities” which we believe would be less burdensome for eligible applicants to administer while providing full coverage for the range of students with disabilities enrolled at an institution of higher education who may benefit from receiving support services under this program. We may apply these definitions in any year in which this program is in effect.

Completions of value means credentials that lead to further education through upward transfer or graduate education and/or that lead to economic mobility through earning enough to experience a premium over high school graduates and earning enough to recoup investment in postsecondary education.

Continuous improvement means using plans for collecting and analyzing data about a project component's implementation and outcomes (including the pace and extent to which project outcomes are being met) to inform necessary changes throughout the project. These plans may include strategies to gather ongoing feedback from participants and stakeholders on the implementation of the project component.

English learner means an individual who is an English learner as defined in section 8101(2) of the Elementary and Secondary Education Act of 1965, as amended, or an individual who is an English language learner as defined in section 203(7) of the Workforce Innovation and Opportunity Act.

Historically Black College or University means an institution that meets the eligibility requirements under section 322(2) of the HEA.

Independent evaluation means an evaluation of a project component that is designed and carried out independently of, but in coordination with, the entities that develop or implement the project component.

Minority-serving institution means an institution that is eligible to receive assistance under sections 317 through 320 of part A of title III, or under title V of the HEA.

Student with a disability means any student enrolled at an institution of higher education (including those accepted for dual enrollment) who meets the definition of an individual with a disability as defined in section 3 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12102).

Tribal College or University has the meaning ascribed it in section 316(b)(3) of the HEA.

Underserved student means a student in one or more of the following subgroups:

(a) A student who is living in poverty or is served by schools with high concentrations of students living in poverty.

(b) A student of color.

(c) A student who is a member of a federally recognized Indian Tribe.

(d) An English learner.

(e) A student with a disability.

(f) A student experiencing homelessness or housing insecurity.

(g) A lesbian, gay, bisexual, transgender, queer or questioning, or intersex (LGBTQI+) student.

(h) A pregnant, parenting, or caregiving student.

(i) A student who is the first in their family to attend postsecondary education.

(j) A student enrolling in or seeking to enroll in postsecondary education for the first time at the age of 20 or older.

(k) A student who is working full-time while enrolled in postsecondary education.

(l) A student who is enrolled in, or is seeking to enroll in, postsecondary education who is eligible for a Pell Grant.

(m) An adult student in need of improving their basic skills or an adult student with limited English proficiency.

We will announce the final priorities, requirements, and definitions in a document in the Federal Register . We will determine the final priorities, requirements, and definitions after considering public comments on the proposed priorities, requirements, and definitions and other information available to the Department. This document does not preclude us from proposing additional priorities, requirements, definitions, or selection criteria, subject to meeting applicable rulemaking requirements.

Note: This document does not solicit applications. In any year in which we choose to use one or more of these priorities, requirements, and definitions, we invite applications through a notice in the Federal Register .

Under Executive Order 12866, the Office of Management and Budget (OMB) determines whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by OMB. Section 3(f) of Executive Order 12866, as amended by Executive Order 14094, defines a “significant regulatory action” as an action likely to result in a rule that may—

(1) Have an annual effect on the economy of $200 million or more (adjusted every three years by the Administrator of Office of Information and Regulatory Affairs (OIRA) for changes in gross domestic product); or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, territorial, or Tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impacts of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise legal or policy issues for which centralized review would meaningfully further the President's priorities, or the principles set forth in this Executive order, as specifically authorized in a timely manner by the Administrator of OIRA in each case.

This proposed regulatory action is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866, as amended by Executive Order 14094.

We have also reviewed this proposed regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866, as amended by Executive Order 14094. To the extent permitted by law, Executive Order 13563 requires that an agency—

(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);

(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;

(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);

(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and

(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.

Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”

We are issuing these proposed priorities, requirements, and definitions only on a reasoned determination that their benefits would justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that would maximize net benefits. Based on the analysis that follows, the Department believes that this regulatory action is consistent with the principles in Executive Order 13563.

The potential costs associated with these priorities, requirements, and definitions would be minimal, while the potential benefits are significant. The Department believes that this proposed regulatory action would not impose significant costs on eligible entities. Participation in this program is voluntary, and the costs imposed on applicants by this regulatory action would be limited to paperwork burden related to preparing an application. The potential benefits of implementing the program would outweigh the costs incurred by applicants, and the costs of carrying out activities associated with the application would be paid for with program funds. For these reasons, we have determined that the costs of implementation would not be burdensome for eligible applicants, including small entities.

We also have determined that this regulatory action would not unduly interfere with State, local, and Tribal governments in the exercise of their governmental functions.

In accordance with these Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs are those resulting from statutory requirements and those we have determined as necessary for administering the Department's programs and activities.

Executive Order 12866 and the Presidential memorandum “Plain Language in Government Writing” require each agency to write regulations that are easy to understand. The Secretary invites comments on how to make these proposed priorities, requirements, and definitions easier to understand, including answers to questions such as the following:

• Are the requirements in the proposed priorities, requirements, and definitions clearly stated?

• Do the proposed priorities, requirements, and definitions contain technical terms or other wording that interferes with their clarity?

• Does the format of the proposed priorities, requirements, and definitions (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce their clarity?

• Would the proposed priorities, requirements, and definitions be easier to understand if we divided them into more (but shorter) sections?

• Could the description of the proposed priorities, requirements, and definitions in the SUPPLEMENTARY INFORMATION section of this preamble be more helpful in making the proposed priorities, requirements, and definitions easier to understand? If so, how?

• What else could we do to make the proposed priorities, requirements, and definitions easier to understand?

To send any comments that concern how the Department could make these proposed priorities, requirements, and definitions easier to understand, see the instructions in the ADDRESSES section.

Intergovernmental Review: This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.

This document provides early notification of our specific plans and actions for this program.

The Secretary certifies that these proposed priorities, requirements, and definitions would not have a significant economic impact on a substantial number of small entities.

The small entities that this proposed regulatory action would affect are institutions that meet the applicable eligibility requirements. The Secretary believes that the costs imposed on applicants by the proposed priorities, requirements, and definitions would be limited to paperwork burden related to preparing an application and that the benefits would outweigh any costs incurred by applicants.

Participation in this program is voluntary. For this reason, the proposed priorities, requirements, and definitions would impose no burden on small entities unless they applied for funding under the program. We expect that in determining whether to apply for PSSG program funds, an eligible applicant would evaluate the requirements of preparing an application and any associated costs and weigh them against the benefits likely to be achieved by receiving PSSG funds. Eligible applicants most likely would apply only if they determine that the likely benefits exceed the costs of preparing an application. The likely benefits include the potential receipt of a grant as well as other benefits that may accrue to an entity through its development of an application.

This proposed regulatory action would not have a significant economic impact on any small entity once it receives a grant because it would be able to meet the costs of compliance using the funds provided under this program. We invite comments from eligible small entities as to whether they believe this proposed regulatory action would have a significant economic impact on them and, if so, request evidence to support that belief.

These proposed priorities, requirements, and definitions do not contain any information collection requirements.

Accessible Format: On request to the program contact person listed under FOR FURTHER INFORMATION CONTACT , individuals with disabilities can obtain this document in an accessible format. The Department will provide the requestor with an accessible format that may include Rich Text Format (RTF) or text format (txt), a thumb drive, an MP3 file, braille, large print, audiotape, or compact disc, or other accessible format.

Electronic Access to This Document: The official version of this document is the document published in the Federal Register . You may access the official edition of the Federal Register and the Code of Federal Regulations at www.govinfo.gov. At this site you can view this document, as well as all other documents of this Department published in the Federal Register , in text or Portable Document Format (PDF). To use PDF, you must have Adobe Acrobat Reader, which is available free at the site.

You may also access documents of the Department published in the Federal Register by using the article search feature at www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

On October 5, 2023, the Pennsylvania Department of Environmental Protection (PADEP) submitted a revision to its SIP to demonstrate attainment of the 2010 SO 2 NAAQS in the Indiana, PA nonattainment area. This plan includes Pennsylvania's attainment demonstration and other attainment plan elements required under the CAA, including the requirement for meeting reasonable further progress (RFP) toward attainment of the NAAQS, reasonably available control measures and reasonably available control technology (RACM/RACT), enforceable emission limitations and control measures, and contingency measures. Notably, the submission does not contain information regarding the required emissions inventory or the state's Nonattainment New Source Review (NNSR) program, as these were previously approved by the EPA (87 FR 50778, August 18, 2022).

On June 22, 2010, the EPA published a new 1-hour primary SO 2 NAAQS of 75 parts per billion (ppb) at 40 CFR 50.17(a), which is met at an ambient air quality monitoring site when the 3-year average of the annual 99th percentile of daily maximum 1-hour average concentrations does not exceed 75 ppb, as determined in accordance with 40 Code of Federal Regulations (CFR) part 50 appendix T (75 FR 35520, June 22, 2010). Under CAA section 107(d)(1), the EPA is required to designate areas as “nonattainment,” “attainment,” or “unclassifiable” within two years of establishing a new or revising an existing standard. As part of this process, states must submit recommendations for area designations and boundaries to the EPA within one year of the effective date of the standard. Effective on October 4, 2013, 1 the Indiana Area (which encompasses Indiana County, and Plumcreek Township, South Bend Township and Eldertown Borough of Armstrong County) was designated as nonattainment for the 2010 SO 2 NAAQS for an area that encompasses the primary SO 2 emitting sources: the Keystone Generating Station (Keystone), Conemaugh Generating Station (Conemaugh), Homer City Generating Station (Homer City), and Seward Generating Station (Seward) (hereafter referred to as “the Indiana, PA NAA”). The October 4, 2013, final designation triggered a requirement for Pennsylvania to submit by April 4, 2015 (within 18 months per CAA section 191(a)), a SIP revision with an attainment plan for how the Indiana, PA NAA would attain the 2010 SO 2 NAAQS as expeditiously as practicable, but no later than October 4, 2018, (five years from the designation per CAA section 192(a)) in accordance with CAA sections 110(a), 172(c) and 191-192.

For a number of areas, including the Indiana, PA NAA, the EPA published a March 18, 2016 Finding of Failure to Submit, with an effective date of April 18, 2016, finding that Pennsylvania and other pertinent states had failed to submit the required SO 2 attainment plan by this submittal deadline. (see 81 FR 14736, March 18, 2016). This finding initiated a deadline under CAA section 179(a) for the potential imposition of new source review and highway funding sanctions. However, as a result of Pennsylvania's October 11, 2017 submittal (hereafter referred to as “the 2017 SIP submittal”), and the EPA's subsequent October 13, 2017 letter to Pennsylvania finding the submittal complete, the CAA section 179(a) sanctions were not imposed. Additionally, under CAA section 110(c), the March 18, 2016, finding triggered a requirement that the EPA promulgate a Federal implementation plan (FIP) within two years of the effective date of the finding unless, by that time, the state has made the necessary complete submittal and the EPA has approved the submittal as meeting applicable requirements. The EPA took final action approving this attainment plan on October 19, 2020 (85 FR 66240, October 19, 2020), which removed the FIP obligation.

On December 18, 2020, the Sierra Club, Clean Air Council, and Citizens for Pennsylvania's Future filed a petition for judicial review with the U.S. Court of Appeals for the Third Circuit, challenging that final approval. 2 On April 5, 2021, the EPA filed a motion for voluntary remand without vacatur of its approval of the Indiana, PA SO 2 attainment plan.

On August 17, 2021, the U.S. Court of Appeals for the Third Circuit granted the EPA's request for remand without vacatur of the final approval of Pennsylvania's SO 2 attainment plan for the Indiana, PA NAA, and required that the EPA take final action in response to the remand no later than one year from the date of the court's order.

On August 18, 2022, the EPA revised and corrected its prior full approval action (85 FR 66240, October 19, 2020) without further submission from Pennsylvania (effective September 19, 2022) (87 FR 50778, August 18, 2022). Specifically, the EPA retained the approval of the emissions inventory and NNSR program requirements, and disapproved the attainment demonstration, RACM/RACT requirements, RFP requirements, and contingency measures (hereafter referred to as the “2022 Partial Approval/Partial Disapproval”) (87 FR 50778, August 18, 2022). The partial disapproval action initiated a sanctions clock under CAA section 179, providing for emission offset sanctions for new sources if EPA has not fully approved a revised attainment plan within 18 months (March 19, 2024) after final partial disapproval, and providing for highway funding sanctions if the EPA has not fully approved a revised plan within 6 months thereafter (September 19, 2024). The sanctions clock can be stopped only if the conditions of the EPA's regulations at 40 CFR 52.31 are met. Also, under CAA section 110(c), the partial disapproval action initiated an obligation for EPA to promulgate a FIP within two years unless Pennsylvania has submitted, and EPA has fully approved, a plan addressing the disapproved attainment planning requirements.

On October 5, 2023, Pennsylvania submitted a 2023 SO 2 Attainment Plan SIP Revision for the Indiana, PA NAA (hereafter referred to as the “2023 SIP submittal”). The 2023 SIP submittal addresses the requirements of CAA sections 172(c), 191 and 192 and the disapproved attainment planning requirements in the EPA's 2022 Partial Approval/Partial Disapproval. Specifically, this SIP revision contains a modified attainment demonstration using dispersion modeling, evaluates sources for RACT/RACM purposes, gives an RFP explanation, and provides for contingency measures, and includes revised emissions limitations and control measures.

Nonattainment area SO 2 SIPs must meet the applicable requirements of the CAA, specifically CAA sections 110, 172, 191 and 192. The EPA's regulations governing nonattainment area SIPs are set forth at 40 CFR part 51, with specific procedural requirements and control strategy requirements residing at subparts F and G, respectively. Soon after Congress enacted the 1990 amendments to the CAA, the EPA issued comprehensive guidance on SIPs in a document entitled the “General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” published in the Federal Register at 57 FR 13498 (April 16, 1992) (General Preamble). Among other things, the General Preamble addressed SO 2 SIPs and fundamental principles for SIP control strategies. Id. at 13545-49, 13567-68. On April 23, 2014, the EPA issued guidance and recommendations for meeting the statutory requirements in SO 2 SIPs addressing the 2010 primary NAAQS, in a document entitled, “Guidance for 1-Hour SO 2 Nonattainment Area SIP Submissions” (hereafter referred to as “2014 SO 2 Nonattainment Guidance”). 3 In the 2014 SO 2 Nonattainment Guidance, the EPA described the statutory requirements for a complete nonattainment area SIP, which include an accurate emissions inventory of current emissions for all sources of SO 2 within the nonattainment area; an attainment demonstration; enforceable emissions limitations and control measures; demonstration of RFP; implementation of RACM (including RACT); nonattainment new source review; and adequate contingency measures for the affected area.

For the EPA to fully approve a SIP as meeting the requirements of CAA sections 110, 172, 191, and 192 and the EPA's regulations at 40 CFR part 51, the SIP for the affected area needs to demonstrate to the EPA's satisfaction that each of the aforementioned requirements have been met. Under CAA sections 110(l) and 193, the EPA may not approve a SIP that would interfere with any applicable requirement concerning NAAQS attainment and RFP, or any other applicable requirement, and no requirement in effect before November 15, 1990 (or required to be adopted by an order, settlement, agreement, or plan in effect before November 15, 1990), in any area which is a nonattainment area for any air pollutant, may be modified in any manner unless it ensures equivalent or greater emission reductions of such air pollutant.

CAA section 172(c)(1) directs states with areas designated as nonattainment to demonstrate that the submitted plan provides for attainment of the NAAQS. 40 CFR part 51, subpart G further delineates the control strategy requirements that SIPs must meet, and the EPA has long required that all SIPs and control strategies reflect the four fundamental principles of quantification, enforceability, replicability, and accountability. See General Preamble, at 13567-68. SO 2 attainment plans must consist of two components: (1) emission limits and other control; measures that assure implementation of permanent, enforceable and necessary emission controls, and (2) a modeling analysis which meets the requirements of 40 CFR part 51, appendix W and demonstrates that these emission limits and control measures provide for timely attainment of the primary SO 2 NAAQS as expeditiously as practicable, but by no later than the attainment date for the affected area. In all cases, the emission limits and control measures must be accompanied by appropriate methods and conditions to determine compliance with the respective emission limits and control measures, and must be quantifiable ( i.e., a specific amount of emission reduction can be ascribed to the measures), fully enforceable (specifying clear, unambiguous and measurable requirements for which compliance can be practicably determined), replicable (the procedures for determining compliance are sufficiently specific and non-subjective so that two independent entities applying the procedures would obtain the same result), and accountable (source-specific limits must be permanent and must reflect the assumptions used in the SIP demonstrations).

The EPA's 2014 SO 2 Nonattainment Guidance recommends that the emission limits established for the attainment demonstration be expressed as short-term average limits ( e.g., addressing emissions averaged over one or three hours), but also describes the option to utilize emission limits with longer averaging times of up to 30 days so long as the state meets various suggested criteria. See 2014 SO 2 Nonattainment Guidance, pp. 22 to 39. The guidance recommends that—should states and sources utilize longer averaging times—the longer-term average limit should be set at an adjusted level that reflects a stringency comparable to the 1-hour average limit at the critical emission value (CEV) shown to provide for attainment that the plan otherwise would have set.

The 2014 SO 2 Nonattainment Guidance provides an extensive discussion of the EPA's rationale for concluding that appropriately set, comparably stringent limitations based on averaging times as long as 30 days can be found to provide for attainment of the 2010 SO 2 NAAQS. In evaluating this option, the EPA considered the nature of the standard, conducted detailed analyses of the impact of 30-day average limits on the prospects for attaining the standard, and carefully reviewed how best to achieve an appropriate balance among the various factors that warrant consideration in judging whether a state's plan provides for attainment. Id. at pp. 22-39, and Appendices B, C, and D.

As specified in 40 CFR 50.17(b), the 1-hour primary SO 2 NAAQS is met at an ambient air quality monitoring site when the 3-year average of the annual 99th percentile of daily maximum 1-hour average concentrations is less than or equal to 75 ppb. In a year with 365 days of valid monitoring data, the 99th percentile would be the fourth highest daily maximum 1-hour value. The 2010 SO 2 NAAQS, including this form of determining compliance with the standard, was upheld by the U.S. Court of Appeals for the District of Columbia Circuit in Nat'l Envt'l Dev. Ass'n's Clean Air Project v. EPA, 686 F.3d 803 (D.C. Cir. 2012). Because the standard has this form, a single hourly exceedance of the 75 ppb NAAQS level does not by itself result in a violation of the standard. Instead, at issue is whether a source operating in compliance with a properly set longer-term average could cause multiple hourly exceedances over multiple days in a year, and if so, the resulting frequency and magnitude of such exceedances, and in particular, whether the EPA can have reasonable confidence that a properly set longer-term average limit will provide that the 3-year average of annual fourth highest daily maximum hourly values will be at or below 75 ppb. A synopsis of how the EPA evaluates whether such plans “provide for attainment,” based on modeling of projected allowable emissions and in light of the SO 2 NAAQS' form for determining attainment at monitoring sites, follows.

For SO 2 attainment plans based on 1-hour emission limits, the standard approach is to conduct modeling using fixed 1-hour emission rates. The maximum modeled emission rate that results in attainment is labeled the “critical emissions value” (CEV). The modeling process for identifying this CEV inherently considers the numerous variables that affect ambient concentrations of SO 2 , such as meteorological data, background concentrations, and topography. In the standard approach, the state would then provide for attainment by setting a continuously applicable 1-hour emission limit for each stationary SO 2 source at this CEV.

The EPA recognizes that some sources have highly variable emissions, for example due to variations in fuel sulfur content and operating rate, that can make it extremely difficult, even with a well-designed control strategy, to ensure in practice that emissions for any given hour do not exceed the CEV. The EPA also acknowledges the concern that longer-term emission limits can allow short periods with emissions above the CEV, which, if coincident with meteorological conditions conducive to high SO 2 concentrations, could in turn create the possibility of an hourly NAAQS exceedance occurring on a day when an exceedance would not have occurred if emissions were continuously controlled at the level corresponding to the CEV. However, for several reasons, EPA believes that the approach recommended in its guidance document suitably addresses this concern.

First, from a practical perspective, the EPA expects the actual emission profile of a source subject to an appropriately set longer-term average limit to be similar to the emission profile of a source subject to an analogous 1-hour average limit. The EPA expects this similarity because it has recommended that the longer-term average limit be set at a level that is comparably stringent to the otherwise applicable 1-hour limit (reflecting a downward adjustment from the CEV) and that takes the source's emissions profile (and inherent level of emissions variability) into account. As a result, the EPA expects either form of emission limit to yield comparable air quality.

Second, from a more theoretical perspective, the EPA has compared the likely air quality with a source having maximum allowable emissions under an appropriately set longer-term limit, to the likely air quality with the source having maximum allowable emissions under the comparable 1-hour limit. In this comparison, in the 1-hour average limit scenario, the source is presumed at all times to emit at the CEV, and in the longer-term average limit scenario, the source is presumed occasionally to emit more than the CEV, but on average, and presumably at most times, to emit well below the CEV. In an “average year,”  4 compliance with the 1-hour limit is expected to result in three exceedance days ( i.e., three days with maximum hourly values above 75 ppb) and a fourth day with a maximum hourly value at 75 ppb. By comparison, with the source complying with a longer-term limit, it is possible that additional hourly exceedances would occur that would not occur in the 1-hour limit scenario (if emissions exceed the CEV at times when meteorology is conducive to poor air quality). However, this comparison must also factor in the likelihood that exceedances that would be expected in the 1-hour limit scenario would not occur in the longer-term limit scenario. This result arises because the longer-term limit requires lower emissions most of the time (because the limit is set below the CEV), so a source complying with an appropriately set longer-term limit is likely to have lower emissions at critical times than would be the case if the source were emitting as allowed with a 1-hour limit.

To illustrate this point, the EPA conducted a statistical analysis using a range of scenarios using actual plant data. The analysis is described in appendix B of EPA's 2014 SO 2 Nonattainment Guidance. Based on the analysis described in the 2014 SO 2 Nonattainment Guidance, the EPA expects that an emission profile with maximum allowable emissions under an appropriately set, comparably stringent 30-day average limit is likely to have the net effect of having a lower number of hourly exceedances and better air quality than an emission profile with maximum allowable emissions under a 1-hour emission limit at the CEV. This result provides a compelling policy rationale for allowing the use of a longer averaging period, in appropriate circumstances where the facts indicate this result can be expected to occur.

The 2014 SO 2 Nonattainment Guidance offers specific recommendations for determining an appropriate longer-term average limit. The recommended method starts with determination of the 1-hour emission limit that would provide for attainment ( i.e., the CEV), and applies an adjustment factor to determine the (lower) level of the longer-term average emission limit that would be estimated to have a stringency comparable to the otherwise necessary 1-hour emission limit. This method uses a database of continuous emission data reflecting the type of control that the source will be using to comply with the SIP emission limits, which (if compliance requires new controls) may require use of an emission database from another source. The recommended method involves using these data to compute a complete set of emission averages, computed according to the averaging time and averaging procedures of the prospective emission limitation ( i.e., using 1-hour historical emission values from the emissions database to calculate 30-day average emission values). In this recommended method, the ratio of the 99th percentile among these long-term averages to the 99th percentile of the 1-hour values represents an adjustment factor that may be multiplied to the candidate 1-hour emission limit (CEV) to determine a longer-term average emission limit that may be considered comparably stringent. 5

The 2014 SO 2 Nonattainment Guidance also addresses a variety of related topics, including the potential utility of setting supplemental emission limits, such as mass-based limits or work practice requirements for the operation of SO 2 control equipment, to reduce the likelihood and/or magnitude of elevated emission levels that might occur under the longer-term emission rate limit.

Preferred air quality models for use in regulatory applications are described in appendix A of the EPA's Guideline on Air Quality Models (40 CFR part 51, appendix W). In 2005, the EPA promulgated AERMOD as the Agency's preferred near-field dispersion modeling for a wide range of regulatory applications addressing stationary sources (for example in estimating SO 2 concentrations) in all types of terrain based on extensive developmental and performance evaluation. Supplemental guidance on modeling for purposes of demonstrating attainment of the SO 2 standard is provided in appendix A to the 2014 SO 2 Nonattainment Guidance. Appendix A provides extensive guidance on the modeling domain, the source inputs, assorted types of meteorological data, and background concentrations. Consistency with the recommendations in this guidance is generally necessary for the attainment demonstration to offer adequately reliable assurance that the plan provides for attainment.

Attainment demonstrations for the 2010 1-hour primary SO 2 NAAQS must demonstrate future attainment and maintenance of the NAAQS in the entire area designated as nonattainment ( i.e., not just at the violating monitor) by using air quality dispersion modeling ( see appendix W to 40 CFR part 51) to show that the mix of sources and enforceable control measures and emission rates in an identified area will not lead to a violation of the SO 2 NAAQS. For a short-term ( i.e., 1-hour) standard, the EPA believes that dispersion modeling, using allowable emissions and addressing stationary sources in the affected area (and in some cases those sources located outside the nonattainment area which may affect attainment in the area) is technically appropriate, efficient, and effective in demonstrating attainment in nonattainment areas because it takes into consideration combinations of meteorological and emission source operating conditions that may contribute to peak ground-level concentrations of SO 2 .

The meteorological data used in the analysis should generally be processed with the most recent version of AERMET. AERMET is a meteorological data preprocessor that incorporates air dispersion based on planetary boundary layer turbulence structure and scaling concepts. Estimated concentrations should include ambient background concentrations, should follow the form of the standard, and should be calculated as described in section 2.6.1.2 of the August 23, 2010, clarification memo on “Applicability of Appendix W Modeling Guidance for the 1-hour SO 2 National Ambient Air Quality Standard” (U.S. EPA, 2010).

Pennsylvania's 2023 SIP submittal contained an attainment demonstration that located, identified, and quantified sources of emissions contributing to violations of the 2010 SO 2 NAAQS in the Indiana, PA NAA; a determination that the control strategy for the primary SO 2 sources (Keystone, Conemaugh, Homer City, and Seward) constitutes RACM/RACT; requirements for RFP toward attaining the SO 2 NAAQS in the Indiana, PA NAA; contingency measures; and the request that emission limitations and compliance parameters for Keystone, Conemaugh, and Seward be incorporated into the SIP. 6 The EPA disapproved these elements of PADEP's 2017 SIP submittal because they were based on longer-term averaging SO 2 limits for Keystone and Seward that EPA could not approve. Those particular longer-term averaging limits were unsupportable because PADEP's modeling and analysis fell short of demonstrating that the longer-term limits were comparably stringent to the 1-hour CEV and that such limits would provide for attainment under worst-case emission scenarios, unlike the approach set forth in the 2014 SO 2 Nonattainment Guidance. But PADEP's 2023 SIP submittal includes appropriate modeling and revised longer-term averaging emission limits for Keystone, Conemaugh, and Seward that are comparably stringent to the 1-hour CEV for each facility. Therefore, the 2023 SIP submittal's attainment plan elements, the effectiveness of which are dependent upon correct longer-term averaging emission limits, are similarly approvable. The EPA already determined that Pennsylvania satisfied the emissions inventory and NNSR requirements and approved those elements of the attainment plan into Pennsylvania's SIP as stated in the 2022 Partial Approval/Partial Disapproval of Pennsylvania's 2017 submittal (87 FR 50778, August 18, 2022).

The SO 2 attainment demonstration provides air quality dispersion modeling analyses to demonstrate that control strategies chosen to reduce SO 2 source emissions will bring the Indiana, PA NAA into attainment. The modeling analyses, conducted pursuant to recommendations outlined in appendix W to 40 CFR part 51 (EPA's Modeling Guidance), are used to assess the control strategy for a nonattainment area and establish emission limits that will provide for attainment. The analysis requires five years of meteorological data to simulate the dispersion of pollutant plumes from multiple point, area, or volume sources across the averaging times of interest. 7 The modeling demonstration typically also relies on maximum allowable emissions from sources in the nonattainment area. Though the actual emissions are likely to be below the allowable emissions, sources have the ability to run at higher production rates or optimize controls such that emissions approach the allowable emissions limits. A modeling analysis that provides for attainment under all scenarios of operation for each source must therefore consider the worst-case scenario of both the meteorology ( e.g., predominant wind directions, stagnation, etc.) and the maximum allowable emissions.

Air dispersion modeling served as the basis for developing SO 2 emission limits that provide for attainment of the 2010 SO 2 NAAQS throughout the Indiana, PA NAA. PADEP's air dispersion modeling methodology is fully described in appendix A of the state submittal, the Air Dispersion Modeling Technical Support Document.

PADEP's air dispersion modeling utilized the AERMOD v22112 and its associated preprocessors, the building downwash preprocessor (BPIPPRM) v04274, the AERMOD terrain preprocessor (AERMAP) v18081, and the AERMOD meteorological preprocessor (AERMET) v22112.

The modeling analysis included the following SO 2 sources in the NAA: (1) Keystone's SO 2 emission sources include two coal-fired boilers (Unit 1 & Unit 2 or Source ID 031 & 032). The SO 2 emissions vent from each source to the atmosphere through separate flues within a common stack, which was characterized in AERMOD as a point source; (2) Homer City's SO 2 emission sources include three coal-fired boilers (Unit 1, Unit 2 & Unit 3 or Source ID 031, 032 & 033). The SO 2 emissions vent from each source to the atmosphere through separate stacks, which were each characterized in AERMOD as a point source; (3) Conemaugh's SO 2 emission sources include two coal-fired boilers (Unit 1 & Unit 2 or Source ID 031 & 032). The SO 2 emissions vent from each source to the atmosphere through separate flues within a common stack, which was characterized in AERMOD as a point source; and (4) Seward's SO 2 emission sources include two refuse coal-fired boilers (Unit 1 & Unit 2 or Source ID 034 & 035). The SO 2 emissions vent from each source to the atmosphere through a common stack, which was characterized in AERMOD as a point source.

PADEP modeled three domains with three meteorological data sets. Domain 1, the Armstrong County portion of the Indiana, PA NAA, included SO 2 emissions data from Keystone and Homer City in AERMOD. Domain 2, the Indiana County portion of the Indiana, PA NAA, included SO 2 emissions data from all four power plant facilities in AERMOD. The air dispersion modeling in Domains 1 and 2 utilized representative meteorological datasets from the Johnstown—Cambria County Airport (KJST) meteorological site. The KJST meteorological dataset consists of a 5-year period of hourly records from January 1, 2011, through December 31, 2015, consistent with the meteorological data period that was utilized in the air dispersion modeling for PADEP's 2017 SIP submittal for the Indiana, PA NAA. Additionally, a second KJST meteorological dataset was utilized, which consists of a more recent 5-year period of hourly records from January 1, 2017, through December 31, 2021.

Domain 3, the portion of Indiana County near Conemaugh and Seward, included SO 2 emissions data from those two plants. PADEP used data from the Conemaugh-Seward meteorological site to represent atmospheric conditions in the vicinity of Conemaugh and Seward. A 1-year (September 1, 2015-August 31, 2016) Conemaugh-Seward meteorological dataset was utilized with AERMOD.

Background SO 2 was represented in AERMOD by temporally varying (by season and hour-of-day), 99th-percentile concentrations that were derived from data measured at the Allegheny County Health Department's South Fayette monitor (Site ID: 42-003-0067) for the 3-year period, 2019-2021.

AERMOD was used to determine the CEVs for Conemaugh, Keystone, and Seward where the modeled 1-hour emission rates demonstrate attainment of the 2010 1-hour SO 2 NAAQS. The SO 2 emission rates for Homer City were based on the unit 1, unit 2, and unit 3 combined mass-based SO 2 emission limits established in Plan Approval 32-00055H, 8 which authorized the installation of Novel Integrated Desulfurization (NID) systems, often referred to as Dry Flue Gas Desulphurization (FGD) systems on unit 1 and unit 2. This 1-hour SO 2 limit was based on air dispersion modeling that demonstrated attainment of the 2010 1-hour SO 2 NAAQS. The CEV rates used in the demonstration analysis for each of the four sources are summarized in Table 1, in this document. The modeled emission rate in grams per second (g/s) was converted to pounds per hour (lbs/hr), which is the CEV. 9

Using the EPA conversion factor for the SO 2 NAAQS, the maximum 1-hour CEV model run design values for Domain 1 (196.00 μg/m 3 ), Domain 2 (187.51 μg/m 3 ) and Domain 3 (195.99 μg/m 3 ) of the Indiana Area are less than 75 ppb. 10 EPA has reviewed the modeling that Pennsylvania submitted to support the attainment demonstration for the Indiana Area and has determined that the AERMOD modeling is consistent with CAA requirements, appendix W to 40 CFR part 51, and EPA's 2014 SO 2 Guidance for SO 2 attainment demonstration modeling. Unlike the 2017 SIP submittal which the EPA partially disapproved in 2022 (87 FR 50778, August 18, 2022), PADEP's 2023 SIP submittal used an appropriate analysis to show that the modeled 1-hour CEV and longer-term emission limits were comparably stringent. In doing so, the 2023 SIP submission followed EPA guidance to develop an adjustment factor to convert the modeled 1-hour CEV to the comparably stringent longer-term emission limit. The 2023 SIP submission appropriately developed the adjustment factor by comparing the 99th percentile of historic hourly emissions to the 99th percentile of the longer-term averaged emissions of the same dataset to develop the longer-term emission limits. Conversely, the 2017 SIP submittal developed longer-term limits based on a novel modeling approach with a different variability metric without appropriate justification—PADEP had not demonstrated that the longer-term emission limits would provide for attainment under worst-case scenarios permissible under the limits. (87 FR 15166 at 15171-74, March 17, 2022).

EPA's review supports PADEP's modeling methodology and conclusions. More information about EPA's review of PADEP's attainment demonstration and modeling can be found in EPA's March 2024 “Technical Support Document the Critical Emissions Value Modeling Analysis for the Indiana, PA 1-Hour SO 2 Nonattainment Area” under Docket ID No. EPA-R03-OAR-2024-0024 and online at www.regulations.gov.

The 2017 SIP submittal established longer-term average SO 2 limits for Keystone, Conemaugh, and Seward, and a 1-hour SO 2 limit for Homer City. As described above, the limits in the 2017 submittal for Keystone and Seward were based on a novel modeling approach and an analysis that did not demonstrate that the longer-term emission limits were comparably stringent to the 1-hour CEV. (87 FR 15166 at 15171-74, March 17, 2022). EPA thus disapproved the longer-term average SO 2 limits for Keystone and Seward as not properly characterizing maximally possible emissions. (87 FR 15166 at 15173, March 17, 2022). Nonetheless, the EPA retained the limits as SIP strengthening in its partial approval and partial disapproval. (87 FR 15166 at 15176, March 17, 2022).

PADEP's 2023 SIP submittal established revised longer-term average SO 2 emission limits for Keystone, Conemaugh, and Seward facilities and retained the 1-hour SO 2 emission limit previously established and approved for the Homer City facility. 11 PADEP's 2023 SIP submittal established comparably stringent limits because PADEP used the ratio of the 99th percentile values of the hourly and longer-term emission rates as the adjustment factors for calculating the longer-term limits. 12 The revised longer-term emission limits were calculated from the 1-hour SO 2 CEVs using adjustment factors that correspond to the averaging periods already established in emission limits for each facility ( i.e., Seward's emission limit uses a 30-operating day averaging period, Keystone uses a 24-hour block averaging period, and Conemaugh uses a 3-hour block averaging period). The adjustment factors which are used for deriving longer-term emission limits that are as comparably stringent as the 1-hour SO 2 CEVs were calculated in accordance with the EPA's 2014 SO 2 Nonattainment Guidance. All and only operating hours with measured values were used in the calculations. 13 PADEP utilized four years of stable operations hourly emissions data from 2018-2022. In accordance with the 2014 SO 2 Nonattainment Guidance's recommendation to use data from years with stable operations, data from March through September of 2020, during which operations at Keystone and Conemaugh shifted toward low-load conditions as a result of the COVID-19 pandemic, were excluded from adjustment factor calculations for both stations. To have a complete four calendar years' worth of data, data from March through September of 2022 were used as replacement for the March through September of 2020 data. The calculation of the adjustment factors is described in detail in appendix B of the state submittal and was based on the data reduction criteria and average emission rate calculation established for demonstrating compliance with the longer-term emission limits. For example, Seward's 30-operating day rolling average is the average of all the hourly emission data, using only hours during which fuel is combusted from the preceding 30 operating days. An operating day is defined as a 24-hour period between 12midnight and the following 12 midnight during which any fuel is combusted at any time. This compliance approach is the same as the calculations and definitions used in developing the adjustment factor for this source.

The 1-hour SO 2 CEVs, the adjustment factors, the longer-term SO 2 emission limits, and the averaging periods for the three other facilities are summarized in Table 2, in this document.

Additionally, PADEP implemented a supplemental measure to control any potential hourly emissions spikes at Seward station. Seward shall inject limestone into Source ID 034 and Source ID 035 during initial firing each time Source ID 034 and Source ID 035 are operated to reduce the magnitude and frequency of SO 2 emission spikes in accordance with good air pollution control practices.

The EPA reviewed PADEP's adjustment factor calculations, including the selected years of emissions data and the exclusion of March through September of 2020 due to the COVID pandemic and the claim that the operation of Keystone and Conemaugh was not considered stable during that time period. The EPA notes that removing this period of time, and adding the period of March through September of 2022, produced similar adjustment factors as would have been calculated without replacing the data. The EPA reviewed the justification provided by PADEP regarding this issue and concludes that PADEP properly characterized the hourly load impact of the COVID pandemic in the data ( i.e., shift from high load to low load operation during this time), and properly included data where stable operation of the sources was verified. PADEP followed the EPA's 2014 SO 2 Nonattainment Guidance in developing the comparably stringent longer-term limits for Seward, Conemaugh and Keystone. The EPA is proposing to approve the longer-term emission limits described above as being comparably stringent to the 1-hour CEV for Seward, Conemaugh and Keystone, and as correcting the deficiencies of the 2017 submittal previously identified in 2022 by removing the previously approved (and retained as SIP strengthening) longer-term averaging SO 2 limits for Keystone, Conemaugh, and Seward as described in the RACM/RACT section that follows.

Section 172(c)(1) of the CAA requires states to adopt and submit all RACM, including RACT, as needed to attain the standards as expeditiously as practicable. Section 172(c)(6) requires the SIP to contain enforceable emission limits and control measures necessary to provide for timely attainment of the standard.

Pennsylvania's submittal discusses that the main SO 2 emitting sources at Conemaugh, Homer City, Keystone, and Seward are all equipped with FGD systems (wet limestone scrubbers, dry FGD, or in-furnace limestone injection systems) to reduce SO 2 emissions. Table 3, in this document, lists the control technology at each of the main SO 2 emitting sources at each facility.

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

On February 8, 1983 (48 FR 5723), EPA approved Connecticut Source-Specific State Order 7002B into the SIP. State Order 7002B, which controls SO 2 emissions from combustion equipment by limiting fuel sulfur content, was issued to Dow on May 24, 1982. State Order 7002B is no longer necessary because most of the regulated equipment has been removed from the property and the remaining equipment is subject to more stringent regulatory requirements than those established in the Order. On May 25, 2016 (81 FR 33134), EPA approved a SIP revision submitted by the State of Connecticut on April 22, 2014 (which included supplemental submittals submitted on June 18, 2015, and September 25, 2015). The May 25, 2016, rulemaking established sulfur in fuel oil content limits for use in stationary sources. In addition, the rulemaking included a revision to the sampling and emission testing methods for sulfur content in liquid fuels. A sulfur in fuel limit for use in stationary sources was previously 0.5% sulfur by weight as required on or after January 1, 2002, but this limit was superseded by the more stringent fuel limits (0.3% Sulfur, by weight) required under Sec-19a (e) in the Regulations of Connecticut State Agencies (RCSA) Section 22a-174-19a (Sec-19a). 1

State Order 8027, a single-source VOC RACT order, was issued on March 22, 1989, to Pratt & Whitney. On May 30, 1989 (54 FR 22890), EPA approved Connecticut Source-Specific State Order 8027 into the SIP. However, State Order 8027 is no longer necessary to implement RACT because the equipment subject to the Order has been removed from the property. The Order was rescinded by CT DEEP on November 8, 2016.

On December 3, 2021, the CT DEEP issued Consent Order 8381 to Thames Shipyard. Consent Order 8381 requires source-specific VOC RACT to addresses VOC emissions from miscellaneous metal and plastic parts coating operations.

On May 31, 2022, the CT DEEP proposed to revise the Connecticut SIP by removing State Orders 7002B and 8027 and adding Consent Order 8381 to the Connecticut SIP. In accordance with 40 CFR 51.102, to demonstrate satisfaction of federal public participation requirements, public notice of this proposed action was published on the CT DEEP website on June 6, 2022. Copies of the notice were mailed electronically on June 8, 2022, to the directors of the air pollution agencies in New York, New Jersey, Rhode Island, and Massachusetts, along with a copy to the Director of the Air & Radiation Division of Region 1 of the U.S. Environmental Protection Agency. In accordance with the public notice requirements, materials were available for review on the CT DEEP website. The public hearing scheduled for July 7, 2022, was cancelled because no one requested a hearing by the July 6, 2022, deadline. In accordance with the notice, the comment period was open through July 5, 2022. No comments were received. On July 19, 2022, the CT DEEP submitted the proposed SIP revision to EPA.

On February 14, 2024, CT DEEP submitted a partial revision to its July 2022 SIP submission by removing the last clause of the last sentence of paragraph B.21 from Consent Order 8381 from consideration as a SIP measure. CT DEEP removed the last clause of the notification of noncompliance which states, “unless specifically so stated by the Commissioner in writing.”

CT DEEP issued State Order #7002B to Dow on May 24, 1982, to limit sulfur dioxide emissions from fuel burning sources located at the facility in Gales Ferry. The Order limited the sulfur content of fuel combusted in the units to 1% by weight. The Order also prohibited the concurrent operation of the Wickes boilers (E7C and E7D). During an inspection conducted by CT DEEP on April 20, 2022, it was determined that Heat Transfer Media Heater EA and EB, Cyclotherm Boilers E7A and E7B, and Wickes Boilers E7C and E7D had all been decommissioned and removed from the premises. Dowtherm Heater A and Dowtherm Heater B remain onsite and are owned and operated by Americas Styrenics, LLC. The Dowtherm heaters are identified as EU-1 and EU-2 in Americas Styrenics, LLC's Title V permit (Permit #092-0027-TV).

On May 25, 2016 (81 FR 33134), EPA approved a SIP revision submitted by the State of Connecticut on April 22, 2014 (which included supplemental submittals submitted on June 18, 2015, and September 25, 2015). This revision established a more stringent sulfur in fuel oil content limit of 0.3% sulfur by weight for use in stationary sources (RCSA Sec-19a (e)), which superseded the previous limit of 0.5% sulfur by weight under RCSA Sec-19a (c). The revision also incorporated new provisions under RCSA section 22a-174-19b (Sec-19b) “Fuel Sulfur content Limitations for Stationary Sources” that limited the fuel sulfur content of distillate oil to 0.0015% by weight and residual oil to 0.3% by weight. Therefore, these regulations contained more stringent limits than the limit specified in State Order 7002B. In addition, the submittal included a more recent version of the American Society for Testing and Materials (ASTM) test method D4294 and automatic sampling equipment conformance to ASTM test method D4177-82 for sulfur content in liquid fuels. On April 28, 2022, the Connecticut DEEP's Enforcement Division of the Bureau of Air Management reviewed the information regarding State Order Number 7002B and determined that the Order was obsolete. Order 7002B was determined no longer necessary because most of the subject equipment had been removed from the property and the remaining equipment was subject to more stringent regulatory requirements than those established in the Order. Accordingly, the Connecticut DEEP rescinded the Order on April 28, 2022.

State Order 8027, a single-source VOC RACT Order, was issued by CT DEEP on March 22, 1989, to Pratt & Whitney with requirements for the use of vapor degreasers and solvent cleaning at its facility in North Haven. During an inspection conducted on October 6, 1995, CT DEEP determined that there was no vapor or conveyorized degreasers in service at the facility. Subsequently, Pratt & Whitney sold the property on December 31, 2001, and ceased all operations at the facility on December 31, 2002. During an inspection conducted on June 6, 2012, the CT DEEP confirmed that the site appeared to be abandoned because the building and parking lot were in disrepair, the landscaping was overgrown, and the entrance was gated and padlocked. Accordingly, State Order 8027 is no longer necessary because the subject equipment has been removed from the property, and the Order was rescinded by CT DEEP on October 8, 2016.

Thames Shipyard conducts ship building and repair operations at its facility in New London. Thames Shipyard is classified as a major source of HAP for the Shipbuilding and Ship Repair Surface Coating National Emission Standards for Hazardous Air Pollutants, at 40 CFR 63 Subpart II (“Shipbuilding NESHAP”) and is subject to the emission control requirements promulgated in the Shipbuilding NESHAP. However, Thames Shipyard can accept an enforceable limit on its potential to emit and apply to the state regulatory authority to be reclassified from a NESHAP major source to an area source. 2 3 If Thames Shipyard is reclassified as an area source of HAP, it must satisfy the requirements of Connecticut's RACT rule for the miscellaneous metal and plastic parts coating source category at Section 22a-174-20(s). Therefore, Thames Shipyard requested the VOC content limits set forth in the Shipbuilding NESHAP to be issued as a state-issued consent order for incorporation into the SIP. In response to this request, CT DEEP issued Consent Order 8381 on December 3, 2021, which ensures that the VOC emissions from shipbuilding and repair operations at Thames Shipyard continue to be no less stringent than the NESHAP requirements and consistent with the EPA Control Techniques Guidelines (CTG) for Shipbuilding and Ship Repair Operations (Surface Coating) published August 27, 1996 (61 FR 44050).

On February 14, 2024, CT revised its SIP submission to remove the last clause of the last sentence of paragraph B.21 of Consent Order 8381 from consideration as a SIP measure. Specifically, CT DEEP removed the last clause of the notification of noncompliance which states, “unless specifically so stated by the Commissioner in writing.” This phrase was removed because SIP-approved requirements cannot be open-ended and later arbitrarily established or waived by the state.

The information provided by Thames Shipyard indicated that the identified shipbuilding coatings are necessary to protect ships from corrosion. As shown in Table 1 below, the VOC content limit for each coating category in Consent Order 8381 is no greater than the analogous limit in the Shipbuilding NESHAP and CTG. Consent Order 8381 also grants the use of the thinning formula prescribed in the Shipbuilding NESHAP in lieu of the formula found in Section 22a-174-20(s)(9)(A) of the RCSA. According to Thames Shipyard, the thinner formula prescribed in Section 22a174-20(s) of the RCSA fails to address the use of the thinner outdoors under cold conditions. Because the formula prescribed in the Shipbuilding NESHAP (Equation 1 in 40 CFR 63.785(c)(2)) considers the solids content of the batch, this formula is more appropriate for Thames Shipyard than the formula prescribed in Section 22a-174-20(s)(9)(A) of the RCSA when determining the maximum allowable thinning ratio or ratios to be applied at the facility, as the facility repairs ships year-round and outdoors. Because this calculation method is based upon the methodology at 40 CFR 63.785, this provision would achieve no less than the level of VOC emission control as provided for in the Shipbuilding NESHAP.

The VOC content limits for each coating category is no greater than the analogous limit in the Shipbuilding NESHAP and CTG. Table 1 below summarizes the comparison between the VOC content limits for the Shipbuilding NESHAP and CTG in each coating category. As demonstrated in Table 1 below, the requirements in Consent Order 8381 with respect to VOC limits are consistent with the limits in the Shipbuilding NESHAP and CTG, and achieve the same or a more stringent level of emission control as the Shipbuilding NESHAP and CTG.

To further analyze whether Consent Order No. 8381 issued to Thames Shipyard adequately implements RACT, EPA reviewed multiple potential VOC control requirements that might apply to shipbuilding and repair operations, which were drawn from EPA's own guidance and regulations, Ozone Transport Commission (OTC) model rules and guidelines, 4 and neighboring states' regulatory requirements. EPA's relevant CTG and NESHAP requirements have not changed since August 27,1996 (61 FR-44050) and November 21, 2011 (76 FR 72050), and were evaluated against other regulations to ensure Consent Order 8381 adequately implements RACT. EPA was unable to identify any OTC model rules or guidelines for implementing RACT with respect to VOC emissions for this category of operations.

With respect to neighboring states' requirements, Massachusetts has source-specific requirements for Boston Ship Repair, LLC, that are in accordance with the NESHAP for Shipbuilding and Ship Repair in 40 CFR part 63 subpart II. Rhode Island issued a single source RACT order for US Watercraft, LLC in Warren, Rhode Island, which was approved as implementing RACT for VOC emissions by EPA on September 21, 2017 (82 FR 44103). Massachusetts and Rhode Island requirements very closely mimic the EPA CTG and NESHAP requirements and collectively contain as many as twenty-two specialty coating categories with VOC content limits ranging from 340 to 780 grams of VOC per liter of coating, as well as a general use limit of 340 grams of VOC per liter of coating. To compare, the Connecticut Order for Thames Shipyard contains eight specialty coating categories with VOC content limits ranging from 340 to 780 grams of VOC per liter of coating and a general use VOC limit of 340 grams of VOC per liter of coating.

New York added Title 6 NYCRR Part 228 to its SIP on January 23, 2004 (69 FR 3237) and re-certified that state regulation as implementing RACT with respect to VOC emissions on November 9, 2023 (88 FR 77208). New York's requirements are different in character in that they primarily pertain to “pleasure craft” which are smaller, non-commercial, recreational type vessels, whereas the EPA CTG and NESHAP shipbuilding and repair operations address larger ships, barges, and other vessels for military and commercial use. Since New York's regulation focuses on pleasure craft, it lacks some of the specialty coating requirements for shipbuilding repair. The New York regulation contains seven specialty coating categories with VOC content limits ranging from 330 to 780 grams of VOC per liter of coating and a general use category VOC content limit of 420 grams of VOC per liter of coating. Finally, New Jersey made a negative declaration for the shipbuilding and ship repair CTG category on October 9, 2018 (83 FR 50506), which indicates they have no relevant operations. Therefore, a review of CT's limits as compared to neighboring states with similar regulations indicates that CT's limits are the same or more stringent than the limits prescribed by neighboring states, including Massachusetts, New York, New Jersey, and Rhode Island.

EPA has reviewed the CT DEEP SIP submittal with respect to Consent Order No. 8381 issued to Thames Shipyard and proposes to determine that the VOC stationary source controls requirements in the Consent Order implement RACT and we are therefore proposing to approve the addition of Consent Order into the CT SIP.

Subsection 110(l) of the CAA is referred to as the “anti-backsliding” provision because the subsection prohibits EPA from approving a revision of a plan if the revision would interfere with any applicable requirement in the chapter, including reasonable further progress and attainment of the national ambient air quality standards. Similarly, section 193 of the CAA prohibits EPA from modifying control requirements in effect before November 15, 1990, unless the modification insures equivalent or greater emission reductions. EPA is proposing to determine that CAA sections 110(l) and 193 are not implicated by this action because the Orders proposed to be removed from the CT SIP no longer control sources of VOC or SO 2 emissions, and the Order we are proposing to add to the CT SIP would ensure equivalent or greater emission reductions when compared to the current CT SIP.

As explained above, the Dow units subject to State Order #7002B were decommissioned and removed, and the low-sulfur fuel oil requirements that now apply to the other units still present at the facility are currently required by a statewide regulation, which was approved into the CT SIP on May 25, 2016 (81 FR 33134). Also as explained above, the Pratt & Whitney vapor degreasers and solvent cleaning equipment described in State Order 8027 have been removed from the property, and Pratt & Whitney sold the property on December 31, 2001, and ceased all operations at the facility on December 31, 2002. With regard to adding Consent Order 8381 issued to the Thames Shipyard to the SIP, as explained above, the requirements in Consent Order 8381 implement RACT for VOC emissions and achieve no less VOC control as compared to the existing NESHAP regulations currently applicable to the facility. Therefore, EPA proposes that the SIP revision complies with subsection 110(l) and section 193 of the CAA because the revision ensures equivalent or greater emission reductions when compared to the current CT SIP and the equipment subject to State Order #7002B and 8027 has been decommissioned and is no longer in use.

EPA is proposing to approve the CT DEEP's request to revise the Connecticut SIP to (1) remove State Order 7002B issued to Dow Chemical USA in Gales Ferry on May 25, 1982 from the Connecticut SIP, (2) remove State Order issued to Pratt & Whitney Division of United Technologies Corporation in North Haven on March 22, 1989 from the Connecticut SIP, and (3) add Consent Order 8381issued to Thames Shipyard and Repair Company in New London on December 3, 2021, to the Connecticut SIP, with the exception of the language that was removed from the proposed SIP revision on February 14, 2024 as described above.

EPA is soliciting public comments on the issues discussed in this notice and other relevant considerations. These comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to this proposed rule by following the instructions listed in the ADDRESSES section of this Federal Register .

In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference RACT Order Consent Order 8381, dated December 3, 2021, which establishes VOC RACT requirements for Thames Shipyard and Repair Company. In this rule, the EPA is proposing to remove a single-source VOC RACT Order 2087 issued to Pratt & Whitney Division of United Technologies Corporation, in North Haven, Connecticut, which was approved by EPA into the SIP on May 30, 1989 (54 FR 22890) and State Order 7002B, issued to Dow Chemical USA, in Gales Ferry, Connecticut, which was approved by EPA into the SIP on February 8, 1983 (48 FR 5723) because the regulated activities have ceased operation and no longer exist. The proposed changes are described in sections I. and II. of this document. The EPA has made, and will continue to make, these documents generally available through https://www.regulations.gov and at the EPA Region 1 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

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

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

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

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

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

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

• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act.

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

Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, Feb. 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”

The CT DEEP did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA did not perform an EJ analysis and did not consider EJ in this action. Due to the nature of the action being taken here, this action is expected to have a neutral to positive impact on the air quality of the affected area. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.

Elsewhere in the Federal Register , HHS/NIH has published notice of its establishment of a new system of records 09-25-0224, “NIH Police Records.” The purpose of this rulemaking is to exempt that system of records from certain requirements of the Privacy Act as permitted by 5 U.S.C. 552a(j)(2) and (k)(2). The new system of records will cover records maintained by the NIH Division of Police, Office of Research Services (ORS), in the NIH Office of the Director. The Division of Police was established in 1968 to provide an immediate and primary law enforcement program for the NIH and derives its authority from Memorandum from the Assistant Secretary for Administration, OS, to the Director, NIH, June 13, 1968; Memorandum from the Assistant Secretary for Administration, OS, to the Director, NIH, June 13, 1968, entitled: Delegation of Authority to Assist in Controlling Violations of Law at Certain HEW Facilities Located in Montgomery County, Maryland; 40 U.S.C. 1315 (Law enforcement authority of Secretary of Homeland Security for protection of public property; a Department of Homeland Security (DHS) delegation of authority to HHS/NIH; and an NIH delegation of authority to the NIH Division of Police); General Administrative Delegation of Authority Number 08, Control of Violations of Law at Certain NIH Facilities (Sept. 1, 2020). Based on that establishing authority, the Division of Police performs criminal law enforcement as its principal function. However, the Division of Police conducts both criminal and non-criminal ( e.g., civil, administrative, regulatory) law enforcement investigations.

The NIH Division of Police is directly responsible for the provision of daily law enforcement and criminal and civil investigative activities required to protect the life, safety, and property of NIH employees, contractors, patients, and visitors at NIH. To perform these responsibilities, the NIH Division of Police compiles and maintains records of complaints of incidents, inquiries, investigative findings, arrest records, and court dispositions which are retrieved by personal identifiers and therefore constitute a “system of records” as defined by the Privacy Act at 5 U.S.C. 552a(a)(5). The primary purposes for which the records are used are to: (1) record incidents of crime, civil disturbance, and traffic accidents on the NIH enclave, and the investigation of such incidents; (2) maintain information essential to the protection of life, safety, and property at NIH; (3) provide official records of law enforcement investigative efforts for use in administrative, criminal and/or civil proceedings; and (4) document criminal and civil law enforcement investigations.

The new system of records will include both criminal and non-criminal ( e.g., civil, administrative, regulatory) law enforcement investigatory records which will be retrieved by subject individuals' personal identifiers. Such records are eligible to be exempted from certain Privacy Act requirements, as follows:

• Subsection (j)(2) of the Privacy Act (5 U.S.C. 552a(j)(2)) allows an agency head to exempt from certain Privacy Act provisions a system of records maintained by the agency or component thereof which performs as its principal function any activity pertaining to the enforcement of criminal laws.

• Subsection (k)(2) of the Act (5 U.S.C. 552a(k)(2)) allows an agency head to exempt from certain Privacy Act provisions a system of records containing investigatory material compiled for law enforcement purposes, other than material within the scope of subsection (j)(2) (for example, material compiled for a civil, administrative, or regulatory law enforcement purpose, or material compiled for a criminal law enforcement purpose by an agency component that does not perform criminal law enforcement as its principal function). This exemption's effect on the subject individual's access rights is qualified in that if any individual is denied any right, privilege, or benefit to or for which the individual otherwise would be entitled by Federal law, or for which the individual would otherwise be eligible, as a result of the maintenance of the system of records, the individual must be provided the requested materials except to the extent that disclosure would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence.

HHS/NIH is establishing the following exemptions for the records:

• Based on 5 U.S.C. 552a(k)(2), HHS/NIH is exempting non-criminal ( e.g., civil, administrative, regulatory) law enforcement investigatory material in System No. 09-25-0224 from the requirements in subsections (c)(3), (d)(1) through (4), (e)(1), (e)(4)(G) through (I), and (f) of the Privacy Act, which require the agency to provide an accounting of disclosures; provide notification, access, and amendment rights; maintain only relevant and necessary information authorized by a statute or Executive order; establish and describe procedures whereby an individual can be notified if a system of records contains information pertaining to that individual and how to gain access to pertinent records; identify categories of record sources; and promulgate rules regarding these procedures. The effect of this exemption on a subject individual's access rights will be limited as required by subsection (k)(2) to information that would reveal the identity of a source who was expressly promised confidentiality in cases in which maintenance of the records results in denial of a Federal right, privilege, or benefit to or for which the individual would otherwise be entitled or eligible.

• Based on subsection 5 U.S.C. 552a(j)(2), HHS/NIH is exempting criminal law enforcement investigatory material in System No. 09-25-0224 from the same requirements identified above, and from these additional subsections:

○ (c)(4), requiring the agency to inform disclosure recipients of corrections and notations of dispute affecting disclosed records;

○ (e)(2) and (3), requiring the agency to collect information directly from the subject individual to the greatest extent practicable and to provide a Privacy Act notice to the individual at the time of collection;

○ (e)(5), requiring the agency to maintain records used in agency determinations with sufficient accuracy, relevance, timeliness, and completeness to ensure fairness to individuals;

○ (e)(8), requiring the agency to attempt to notify an individual when a record about the individual is disclosed under compulsory legal process; and

○ (g), subjecting the agency to civil action and civil remedies for noncompliance with access, amendment, and accuracy, relevance, timeliness, and completeness requirements, and for noncompliance that adversely affects an individual.

Notwithstanding the establishment of these exemptions, individual record subjects may submit accounting, access, notification, and correction requests, and HHS/NIH will consider such requests on a case-by-case basis. Only information that is not factually accurate, or is not relevant, timely, or complete may be contested.

In addition to the exemptions that HHS/NIH is establishing for system of records 09-25-0224 in this proposed rule, if any law enforcement investigatory material compiled in that system of records is from another system of records in which such material was exempted from access and other requirements of the Privacy Act based on 5 U.S.C. 5525a(j)(2), it will be exempt in system of records 09-25-0224 on the same basis ( i.e., 5 U.S.C. 552a(j)(2)) and from the same requirements as in the source system.

The following specific rationales explain why each exemption is necessary and appropriate for law enforcement investigation records maintained by the NIH Division of Police, in order to prevent interference with and protect the integrity of pending, closed, and future investigations, including related investigations. All subsections referenced are subsections of 5 U.S.C. 552a.

• Subsection (c)(3) (Provide Accountings of Disclosures). This exemption will apply to both criminal and non-criminal law enforcement investigatory material. Providing an accounting of disclosures to an individual record subject could reveal the existence of a pending or prior investigation or present or past investigative interest on the part of NIH or another agency. This would pose a serious impediment to law enforcement efforts and undermine the investigative process by enabling a subject individual or others in concert with that individual to harass, intimidate, or collude with witnesses, destroy, conceal, or tamper with evidence, threaten or endanger law enforcement personnel, alter patterns of behavior, and avoid detection or apprehension by law enforcement authorities.

• Subsection (c)(4) (Inform Disclosure Recipients of Corrections and Notations of Dispute). This exemption applies to only criminal law enforcement investigatory material. Because system of records 09-25-0224 will be exempt from amendment requirements in subsection (d) and HHS/NIH's compliance with amendment requirements therefore will be voluntary, it is necessary and appropriate that HHS/NIH's compliance with the requirement in subsection (c)(4) be voluntary also. This will give HHS/NIH the flexibility to decide which cases warrant expending resources to meet those administratively burdensome requirements.

• Subsection (d)(1) through (4) (Provide Notification, Access, and Amendment Rights). These exemptions apply to both criminal and non-criminal law enforcement investigatory material. Providing subject individuals with the right to be notified of whether the system of records contains a record about them and to access and amend such records could reveal the existence of a pending or prior investigation or present or past investigative interest by NIH or another agency and details about the investigation, including identities of sources of information, personal information about third parties, and sensitive investigative techniques. This could impair pending and future investigations by chilling or deterring sources of information from providing information to investigators (particularly if they are not certain of its accuracy or fear retribution), by providing an opportunity for subject individuals and others acting in concert with subject individuals to tamper with witnesses or evidence, and by allowing individuals to alter their behavior to defeat investigative techniques and avoid detection or apprehension. Complying with amendment requirements could significantly delay investigations while attempts are made to resolve questions of accuracy, relevance, timeliness, and completeness and would impose an impossible administrative burden by requiring investigations to be continuously reinvestigated. In the case of criminal investigations, since the system of records will be exempt from having to maintain records that are accurate, relevant, timely, and complete, the exemption from amendments seeking to correct to those standards is also appropriate.

• Subsection (e)(1) (Maintain Only Relevant and Necessary Information Authorized by Statute or Executive order). This exemption applies to both criminal and non-criminal law enforcement investigatory material. In the course of a law enforcement investigation, and especially in the early stages of an investigation, the relevance and necessity of information obtained or introduced may be unclear or the information may not be strictly relevant or necessary to a specific investigation but may lead to discovery of relevant information. In the interests of effective law enforcement, it is appropriate to retain all information that may aid in establishing patterns of unlawful activity.

• Subsections (e)(2) and (3) (Collect Information Directly From the Subject Individual to the Greatest Extent Practicable, and Provide a Privacy Act Notice). These exemptions apply to only criminal law enforcement investigatory material. It is not always practicable to collect information sought in a criminal law enforcement investigation directly from subject individuals. Individuals who could be adversely affected by an investigation may intentionally provide unreliable information to avoid being implicated in criminal activity. Questioning subject individuals and providing a Privacy Act notice to them ( i.e., informing them of the purposes for which information collected from them will be used and disclosed and how providing or not providing it could affect them), could inappropriately reveal the existence, nature, scope, and details of the investigation. This would provide an opportunity for the subject individual or others acting in concert with that individual to conceal evidence, alter patterns of behavior, or take other actions that could thwart investigative efforts; reveal the identity of witnesses in investigations, thereby providing an opportunity for the subjects of the investigations or others to harass, intimidate, or otherwise interfere with the collection of evidence or other information from such witnesses; or reveal the identity of confidential or other informants who provide information to investigators, which would negatively affect an informant's usefulness in any ongoing or future investigations and discourage members of the public from cooperating with future investigations.

• Subsections (e)(4)(G) and (H) (Describe Procedures for Notification, Access, and Amendment). These exemptions apply to both criminal and non-criminal law enforcement investigatory material. Because system of records 09-25-0224 will be exempt from request requirements in subsection (d)(1) through (4) (Provide Notification, Access, and Amendment Rights) and HHS/NIH's compliance with those request requirements will therefore be voluntary, it is appropriate that HHS/NIH's compliance with the requirements in subsection (e)(4)(G) and (H) to provide request procedures be voluntary also. Notwithstanding these exemptions, HHS/NIH has included request procedures in the SORN for system of records 09-25-0224 because, notwithstanding the exemptions, individual record subjects may submit access and amendment requests, and HHS/NIH will consider such requests on a case-by-case basis.

• Subsection (e)(4)(I) (Identify Categories of Record Sources in the SORN). This exemption applies to both criminal and non-criminal law enforcement investigatory material. Because the information in these records may come from any source, it is not possible to know every category in advance in order to include them all in the SORN. Further, some record source categories would not be appropriate to publish in the SORN if, for example, revealing them could thwart or impede pending and future law enforcement investigations by enabling record subjects or other individuals to discover sensitive investigative techniques and devise ways to bypass or defeat them to evade detection and apprehension.

• Subsection (e)(5) (Maintain Records Used in Agency Determinations with Sufficient Accuracy, Relevance, Timeliness, and Completeness to Ensure Fairness). This exemption applies to only criminal law enforcement investigatory material. It is not always possible to know whether criminal law enforcement investigation information is accurate, relevant, timely, and complete. With regard to relevance, in the course of a law enforcement investigation, and especially in the early stages of an investigation, the relevance of information obtained or introduced may be unclear or the information may not be strictly relevant to a specific investigation. Compliance with (e)(5) would preclude NIH agents from using their investigative training and exercise of good judgment to both conduct and report on investigations.

• Subsection (e)(8) (Make Reasonable Efforts to Provide Notice of Disclosures Made Under Compulsory Legal Process When Such Process Becomes A Matter of Public Record). This exemption applies to only criminal law enforcement investigatory material. Compliance with this requirement would risk revealing an ongoing criminal investigation to the target of an investigation who otherwise might not be aware of it, defeating a law enforcement advantage in those cases. Compliance with this requirement would also risk revealing a criminal investigation by mistake or inappropriately in cases in which an investigation was not in fact a matter of public record or was not intended to be made public.

• Subsection (g) (Civil Liability for Noncompliance with Notification, Access, Amendment, and Accuracy, Relevance, Timeliness, and Completeness Requirements, or for Noncompliance That Causes an Adverse Effect). This exemption applies to only criminal law enforcement investigatory material. The exemption would prevent a subject individual from bringing a civil action against the agency for violations of Privacy Act requirements as to those records; this would include violations of the preceding requirements, from which the agency would be exempt anyway (which violations therefore would be unlikely to support a successful civil action), and any other violations causing an adverse effect on the individual. Any civil action (even an untenable one) could interfere with, delay, and undermine pending and prospective investigations, reveal sensitive investigative techniques and evidence, cause unwarranted invasions of personal privacy, and reveal identities of witnesses, potential witnesses, and confidential sources.

Other Federal agencies have promulgated the same or similar exemptions for their law enforcement investigatory systems of records based on rationales that are the same or similar to those stated for this system of records. See, e.g., the Final Rules published at 68 FR 4923 (Jan. 31, 2003) and 74 FR 42578 (Aug. 24, 2009) by the Department of Justice for Criminal Investigation Report System, Justice/ATF-003, and by the Department of Homeland Security for Security Facility and Perimeter Access Control and Visitor Management, DHS/ALL-024, respectively. For the same reasons, HHS/NIH believes that the exemptions authorized in 5 U.S.C. 552a(j)(2) and (k)(2) are essential to system of records 09-25-0224 to ensure that law enforcement investigatory material in NIH Division of Police files is not disclosed inappropriately to subject individuals. In NIH's past experience, access to such material by record subjects has led to the destruction, fabrication, alteration, or creation of information. The proposed exemptions will help prevent such problems from recurring in the future.

Accordingly, HHS proposes to exempt both criminal and non-criminal law enforcement investigatory material in system of records 09-25-0224 NIH Police Records from the requirements in subsections (c)(3), (d)(1) through (4), (e)(1), (e)(4)(G) through (I), and (f) of the Privacy Act, based on 5 U.S.C. 552a(j)(2) and (k)(2), and to exempt criminal law enforcement investigatory material in the same system of records from the additional requirements in subsections (c)(4), (e)(2) and (3), (e)(5), (e)(8), and (g) of the Privacy Act, based on 5 U.S.C. 552a(j)(2).

The agency believes that this proposed rule is not a significant rule under Executive Orders 12866, Regulatory Planning and Review; 13563, Improving Regulation and Regulatory Review; or 14094, Modernizing Regulatory Review, because it will not (1) have an annual effect on the economy of $200 million or more; or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or Tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with any action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees or loan programs, or the rights and obligations of recipients thereof; or (4) raise legal or policy issues for which centralized review would meaningfully further the President's priorities or the principles set forth in these Executive orders. This proposed rule renders certain Privacy Act requirements inapplicable to certain records (in this case, law enforcement investigatory records) in accordance with criteria established in the Privacy Act based on a showing that agency compliance with those requirements with respect to those records would harm the effectiveness or integrity of the agency function or process for which the records are maintained (in this case, law enforcement investigations). However, the Office of Management and Budget (OMB) has reviewed this regulation under its Privacy Act oversight authority.

The Regulatory Flexibility Act requires agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because the proposed rule concerns records about individuals, it imposes no duties or obligations on small entities; the agency therefore certifies that the proposed rule will not have a significant economic impact on a substantial number of small entities.

Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current inflation-adjusted statutory threshold is approximately $156 million based on the Bureau of Labor Statistics inflation calculator. The agency does not expect that this proposed rule will result in any one-year expenditure that would meet or exceed this amount.

This proposed rule does not contain any information collection requirements subject to the Paperwork Reduction Act.

This proposed rule will not have any direct effects on 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. Therefore, no federalism assessment is required.

For the reasons set out in the preamble, the Department of Health and Human Services proposes to amend 45 CFR part 5b as follows:

This is a summary of the Public Safety and Homeland Security Bureau's document, DA 24-463, released May 15, 2024. The full text of the Petition can be accessed online via the Commission's Electronic Comment Filing System at: https://docs.fcc.gov/public/attachments/DA-24-463A1.pdf. The Commission will not send a Congressional Review Act (CRA) submission to Congress or the Government Accountability Office pursuant to the CRA, 5 U.S.C. 801(a)(1)(A), because no rules are being adopted by the Commission.

Subject: Resilient Networks; Amendments to Part 4 of the Commission's Rules Concerning Disruptions to Communications; New Part 4 of the Commission's Rules Concerning Disruptions to Communications (PS Docket Nos. 21-346 and 15-80, ET Docket No. 04-35).

Number of Petitions Filed: 1.

I. Background

DoD, GSA, and NASA are proposing to amend the FAR to implement regulatory changes made by the Small Business Administration (SBA) in its final rule published on October 16, 2020, at 85 FR 66146, to implement paragraphs (a) and (d) of section 861 of the John S. McCain National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2019 (Pub. L. 115-232). Paragraphs (a) and (d) of section 861 amended 15 U.S.C. 632(ee) and 15 U.S.C. 657r(a) to add Puerto Rico to the list of territories from which small businesses are eligible for preferential treatment under the SBA mentor-protégé program.

In addition, this rule implements SBA's final rule published on August 19, 2022, at 87 FR 50925, to implement-paragraphs (a) and (c) of section 866 of the NDAA for FY 2021 (Pub. L. 116-283). Paragraphs (a) and (c) of section 866 amended 15 U.S.C. 632(ff) and 15 U.S.C. 657r(a) to add the U.S. Virgin Islands, American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands (CNMI) to the list of territories from which small businesses are eligible for preferential treatment under the SBA mentor-protégé programs. Section 866 also defines a “covered territory business” as a small business concern that has its principal office located in one of the following: (1) the U.S. Virgin Islands; (2) American Samoa; (3) Guam; and (4) CNMI. Sections 861 and 866 created two new incentives for SBA's small business mentor-protégé Program for mentor-protégé pairs in which the protégé has its principal office located in the Commonwealth of Puerto Rico or is a covered territory business. Specifically, such a mentor that subcontracts to its protégé is able to receive positive consideration for the mentor's past performance evaluation and is able to apply costs incurred for training provided to its protégé to its subcontracting plan goals.

In addition, this rule implements changes SBA made to its regulations to clarify that subcontracting plans are not required from firms owned by an Alaska Native Corporation (ANC) because they are treated as small business concerns according to statute; and to clarify that prime contractors may rely on a subcontractor's representations of its size and socioeconomic status unless the prime contractor has reason to doubt the representations.

The proposed changes to the FAR and the rationale are summarized as follows:

This rule amends the clauses at FAR 52.212-5, 52.213-4, 52.219-8, and 52.219-9. However, this rule does not change the applicability of these clauses, which continue to apply to contracts valued at or below the SAT, or on contracts for commercial products, including COTS items, or commercial services. This rule proposes to apply paragraphs (a) and (d) of section 861 of the John S. McCain National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2019 (Pub. L. 115-232), and paragraphs (a) and (c) of section 866 of the NDAA for FY 2021 (Pub. L. 116-283), to acquisitions at or below the SAT and to acquisitions for commercial products, including COTS items, and commercial services, as the two new incentives for SBA's mentor-protégé program are available to all contractors in the program, regardless of the dollar value of the contract awarded or the commercial nature of the products and services procured.

41 U.S.C. 1905 governs the applicability of laws to acquisitions at or below the SAT. Section 1905 generally limits the applicability of new laws when agencies are making acquisitions at or below the SAT, but provides that such acquisitions will not be exempt from a provision of law under certain circumstances, including when the Federal Acquisition Regulatory Council (FAR Council) makes a written determination and finding that it would not be in the best interest of the Federal Government to exempt contracts and subcontracts in amounts not greater than the SAT from the provision of law. The FAR Council intends to make a determination to apply this statute to acquisitions at or below the SAT.

41 U.S.C. 1906 governs the applicability of laws to contracts for the acquisition of commercial products and commercial services, and is intended to limit the applicability of laws to contracts for the acquisition of commercial products and commercial services. Section 1906 provides that if the FAR Council makes a written determination that it is not in the best interest of the Federal Government to exempt commercial contracts, the provision of law will apply to contracts for the acquisition of commercial products and commercial services.

41 U.S.C. 1907 states that acquisitions of COTS items will be exempt from certain provisions of law unless the Administrator for Federal Procurement Policy makes a written determination and finds that it would not be in the best interest of the Federal Government to exempt contracts for the procurement of COTS items.

The FAR Council intends to make a determination to apply this statute to acquisitions for commercial products and commercial services. The Administrator for Federal Procurement Policy intends to make a determination to apply this statute to acquisitions for COTS items.

This proposed rule is expected to benefit mentors with an SBA-approved mentor-protégé agreement that subcontract to covered territory small businesses and small businesses that have their principal office located in the Commonwealth of Puerto Rico. These benefits are expected to extend to covered territory small businesses and small businesses located in the Commonwealth of Puerto Rico, as mentors may be incentivized to enter into SBA-approved mentor-protégé agreements with such small businesses and issue subcontracts to them.

Executive Orders (E.O.s) 12866 (as amended by E.O. 14094) and 13563 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, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993.

DoD, GSA, and NASA do not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601-612, because this rule provides incentives to mentors with SBA-approved mentor-protégé agreements that subcontract to its protégé that has its primary office located in the Commonwealth of Puerto Rico or is a covered territory small business; therefore, the number of small entities that may be impacted is limited. However, an Initial Regulatory Flexibility Analysis (IRFA) has been performed and is summarized as follows:

The Regulatory Secretariat Division has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat Division. DoD, GSA, and NASA invite comments from small business concerns and other interested parties on the expected impact of this proposed rule on small entities.

DoD, GSA, and NASA will also consider comments from small entities concerning the existing regulations in subparts affected by the rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (FAR Case 2023-001), in correspondence.

This rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501-3521).

Government procurement.

Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 2, 19, 42, and 52 as set forth below:

The revisions read as follows:

The revision reads as follows:

The revisions read as follows:

The revision reads as follows:

I. Background

DoD, GSA, and NASA are proposing to amend the FAR to implement regulatory changes made by the SBA in its final rule published on April 10, 2023 (88 FR 21086) to implement section 864 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2022 (Pub. L. 117-81). Section 864 authorizes the SBA Office of Hearings and Appeals (OHA) to decide all appeals from formal status protest determinations in connection with the status of a Historically Underutilized Business Zone (HUBZone) concern. Prior to section 864 and SBA's final rule, appeals of HUBZone status determinations were decided by the SBA's Associate Administrator, Office of Government Contracting and Business Development (AA/GC&BD).

This rulemaking proposes to implement SBA's final rule, dated April 10, 2023, to specify in the FAR that OHA is responsible for deciding all appeals of status protest determinations for a HUBZone concern, identify the information that must be included in an appeal of a HUBZone status protest determination, and remove the requirement for a HUBZone concern to represent its status in the System for Award Management (SAM), as it is no longer necessary since HUBZone concerns are certified by the SBA.

The proposed changes to the FAR and the rationale are summarized as follows:

This rulemaking proposes to amend the following provisions and clauses at FAR: 52.212-3, Offeror Representations and Certifications—Commercial Products and Commercial Services; 52.212-5, Contract Terms and Conditions Required To Implement Statutes or Executive Orders—Commercial Products and Commercial Services; 52.219-1, Small Business Program Representations; 52.219-3, Notice of HUBZone Set-Aside or Sole-Source Award, and 52.219-28, Post-Award Small Business Program Rerepresentation. However, this rulemaking does not change the applicability of these provisions and clauses, which continue to apply to contracts valued at or below the SAT, and contracts for commercial products, including COTS items, or commercial services.

This rulemaking proposes to apply section 864 of the National Defense Authorization Act for Fiscal Year 2022 (Pub. L. 117-81) to acquisitions at or below the SAT and to acquisitions for commercial products, including COTS items, and commercial services, as OHA has the authority, and is the only entity, to decide all HUBZone status protest appeals. As a result, the section must be applied to acquisitions of these types to ensure that all concerns that can appeal a HUBZone status protest decision, regardless of the subject contract's dollar value or commerciality, have a process for doing so.

41 U.S.C. 1905 governs the applicability of laws to acquisitions at or below the SAT. Section 1905 generally limits the applicability of new laws when agencies are making acquisitions at or below the SAT, but provides that such acquisitions will not be exempt from a provision of law under certain circumstances, including when the Federal Acquisition Regulatory Council (FAR Council) makes a written determination and finding that it would not be in the best interest of the Federal Government to exempt contracts and subcontracts in amounts not greater than the SAT from the provision of law. The FAR Council intends to make a determination to apply this statute to acquisitions at or below the SAT.

41 U.S.C. 1906 governs the applicability of laws to contracts for the acquisition of commercial products and commercial services and is intended to limit the applicability of laws to contracts for the acquisition of commercial products and commercial services. Section 1906 provides that if the FAR Council makes a written determination that it is not in the best interest of the Federal Government to exempt commercial products and commercial services contracts, the provision of law will apply to contracts for the acquisition of commercial products and commercial services.

41 U.S.C. 1907 states that acquisitions of COTS items will be exempt from certain provisions of law unless the Administrator for Federal Procurement Policy makes a written determination and finds that it would not be in the best interest of the Federal Government to exempt contracts for the procurement of COTS items.

The FAR Council intends to make a determination to apply this statute to acquisitions for commercial products and commercial services. The Administrator for Federal Procurement Policy intends to make a determination to apply this statute to acquisitions for COTS items.

This proposed rule is expected to impact Government and contractor operations.

As a result of this proposed rule, interested parties seeking to appeal a HUBZone status protest decision will be required to send the appeal to OHA in lieu of the Associate Administrator, Office of Government Contracting and Business Development. This change in decision authority does not add any burden to or create any savings for the Government or contractors. However, contracting officers, contractors, offerors, and the SBA may save some time in submitting and/or processing these appeal requests due to the clear specification of information that OHA requires in a request for appeal of a HUBZone status protest decision. Contracting officers can reference the information in the FAR text to submit an appeal or advise a protester or protested concern what information should be included in the appeal request.

In addition, HUBZone small business concerns will no longer be required to represent their status in SAM since HUBZone concerns are required to be certified by the SBA. This representation was maintained to provide a mechanism for a HUBZone concern to represent that it will comply with the employment requirements at 13 CFR 126.200(e)(1); however, an alternative approach was identified, which precludes the need for a representation and reduces the burden on HUBZone concerns. Specifically, in lieu of a representation, HUBZone concerns will be able to agree to attempt to meet the employment requirements at 13 CFR 126.200(e)(1) by submission of an offer and execution of a contract.

Executive Orders (E.O.s) 12866 and 13563 (as amended by E.O. 14094) 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). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993.

DoD, GSA, and NASA do not expect this proposed rule, if finalized, to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601-612, because this proposed rule merely changes the office that decides HUBZone status protest appeals, specifies the information OHA requires in a request to appeal a HUBZone status protest determination, removes the requirement for a HUBZone concern to represent its status in SAM, and it does not impose any additional compliance burden on applicable small business entities. However, an Initial Regulatory Flexibility Analysis (IRFA) has been performed and is summarized as follows:

The Regulatory Secretariat Division has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat Division. DoD, GSA, and NASA invite comments from small business concerns and other interested parties on the expected impact of this proposed rule on small entities.

DoD, GSA, and NASA will also consider comments from small entities concerning the existing regulations in subparts affected by the proposed rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (FAR Case 2023-013), in correspondence.

This proposed rule does not contain any new information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501-3521). This proposed rule does remove one HUBZone representation from FAR provisions 52.212-3, Offeror Representations and Certifications—Commercial Products, and Commercial Services; and 52.219-1, Small Business Program Representations; and FAR clause 52.219-28, Post-Award Small Business Program Rerepresentation, which are covered under two existing information collections approved by OMB.

OMB Control number 9000-0189, Certain Federal Acquisition Regulation Part 4 Requirements, addresses the burden for FAR provision 52.212-3 and FAR provision 52.204-7, System for Award Management, both of which require offerors on Federal contracts to register in SAM. The representations in FAR provision 52.219-1 are implemented in SAM and either FAR provision 52.204-7 or 52.212-3 is included in all solicitations. Therefore, by registering in SAM, as required by either FAR provision 52.204-7 or 52.212-3, an offeror will make the representations included in FAR provision 52.219-1. As a part of SAM registration, offerors complete approximately 35 representations and certifications, including the HUBZone representation to be removed. The burden for FAR provisions 52.204-7 and 52.212-3 is based on an estimate of the time it would take a new offeror to fill in all of the information needed to register in SAM, or an average of 3 hours in total.

OMB Control number 9000-0163, Small Business Size Rerepresentation, addresses the burden for FAR clause 52.219-28, which requires contractors to rerepresent their size and socioeconomic status in the SAM at certain times. The clause contains eight representations that must be updated in SAM, including the HUBZone representation to be removed. The burden for this clause is based on an estimate of the time it will take a contractor to log into SAM, verify or update their responses to these 8 representations, and email the contracting officer when complete, or an average of 30 minutes in total.

Verifying or updating the HUBZone representation takes only minutes and accounts for a very small portion of the overall burden of the affected provisions and clause. It is reasonable to assume that, even after removing the HUBZone representation, the average estimated burden per SAM registration or rerepresentation is still accurate. For these reasons, OMB Control numbers 9000-0163 and 9000-0189 were not revised to account for the removal of the HUBZone representation.

Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 19 and 52 as set forth below:

The revisions and additions read as follows:

The revision and addition read as follows: